United States v. Bradfield ( 1997 )

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 94-60730
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY C. BRADFIELD and
LEE ANDREW WILLIAMS,
Defendants-Appellants.
________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________
January 9, 1997
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Roy C. Bradfield and Lee Andrews
Williams appeal their convictions for conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. §§841(a)(1)
and 846. For the reasons set forth below, we affirm Williams'
conviction but reverse Bradfield's and remand his case for a new
trial.
I.
FACTS AND PROCEEDINGS
The events giving rise to Bradfield’s and Williams’
indictments and ultimate convictions arose in the context of a
reverse-sting operation orchestrated largely by the FBI’s
confidential informant, John Lee Chancey, Jr. The sting targeted
Bradfield directly.
Bradfield is a forty-year-old truck driver from Benton,
Mississippi. On a trucking job in 1991, he met two other drivers,
Chancey and Juan Guerero, for the first time. While waiting for
their trucks to be unloaded, Guerero and Chancey began talking
about cocaine and weapons deals. The only evidence in the record
of this conversation is Chancey’s testimony, from which it is
unclear whether Bradfield participated in the conversation or
merely listened. Chancey testified initially that Bradfield “was
just laying aside . . . just hearing it.” Chancey testified later,
however, that he told Bradfield to call Guerero if he (Bradfield)
wanted to do a deal but that Chancey would not do a deal until the
current trucking job was completed. None dispute that Bradfield
and Chancey did not make an agreement that day to do a deal, and
that Bradfield left without even bothering to get Chancey’s
telephone number.
Chancey testified further that some three months later, in
March 1992, Guerero called and said that he had been contacted by
Bradfield about doing a deal with Chancey. According to Chancey,
he immediately notified personnel at a Texas district attorney’s
office, and together they began to develop a plan to lure Bradfield
to Texas to purchase drugs. The district attorney’s office agreed
to compensate Chancey with 15-25% of whatever money might
ultimately be obtained in the drug deal. When the district
attorney realized that his office did not have the manpower or the
2
jurisdiction to carry out the plan, he called it off. Disappointed
that he would not make any money, Chancey next contacted FBI
personnel and persuaded them to take the case on the same
contingency fee arrangement. Chancey admitted at trial that if he
had not persisted with the FBI, the reverse-sting operation would
have died when the district attorney in Texas lost interest.
Following several telephone conversations, some of which were
taped, Bradfield and Chancey twice attempted — unsuccessfully — to
structure the drug deal in Mississippi. Several weeks later,
Chancey returned to Jackson, Mississippi and, in a taped telephone
conversation on June 22, 1992, agreed to sell Bradfield four
kilograms of cocaine for $50,000. They decided to meet at the
Shoney’s restaurant adjacent to the Shoney’s Inn on East County
Line Road where Chancey was staying.
That same day Williams, who is a mechanic, used auto parts
dealer, and occasional roofing contractor from Yazoo County,
Mississippi, agreed to ride to Jackson with his nephew, Herbert
Watts, Jr., to pick up some furniture for delivery to Williams’
sister-in-law, Joyce Sawyer, in Ridgeland, Mississippi. According
to Watts’ testimony, Williams and Watts rode in Watts’ truck to
East County Line Road and stopped at a convenience store to call
Ms. Sawyer before picking up the furniture. She was not at home,
so they decided to eat at the Shoney’s restaurant next door.
Williams and Watts entered the restaurant with a relative of
Roy Bradfield's, Newton “Shawn” Bradfield (Shawn), whom Williams
had recognized in the parking lot. Once inside, Williams spotted
3
his old high school classmates, Bradfield and co-defendant Gregory
Robertson, sitting together at a table. Williams, Watts, and Shawn
joined Bradfield and Robertson and ordered something to eat.
Around 1:00 p.m., Chancey entered the restaurant and sat at a
table next to the aforenamed group of five. Shortly after Chancey
sat down, Bradfield pointed to Williams, indicating to Chancey that
Williams was “the man that was going to bring the money,” and then
motioned for Chancey to accompany him (Bradfield) to the men’s
room. Inside the men’s room, Bradfield and Chancey engaged in a
lengthy conversation which Chancey was secretly recording. About
fifteen minutes later, Williams entered the men’s room, and
Bradfield introduced him by his nickname, Chimp, to Chancey. The
conversation resumed, this time among the three men.
The gist of this recorded conversation was that some of the
drug money was at the restaurant, but that a substantial amount was
elsewhere. Bradfield said that he and Robertson would leave the
restaurant, presumably to retrieve the rest of the money, and
instructed Williams to tell Shawn that they (Williams and Shawn)
would show Chancey the money that Shawn was holding. Bradfield
also instructed Williams to accompany Chancey to his motel room and
wait there with him until Bradfield returned with the rest of the
money. Williams agreed to go with Chancey, saying that he would
take along a “notebook or something.”
Instead of going with Chancey, though, Williams went back to
the table and got Watts. The two of them then left the restaurant
together, leaving Robertson and Shawn at the table.
4
David Langlois, an FBI electronics technician, witnessed the
next series of events, to which he testified at trial. Langlois
was driving home from work and stopped at a Texaco station at Exit
108 on I-55. While stopped, he saw a dark Buick Regal, which
matched a vehicle description that he had heard earlier on the FBI
radio, turn into the service station across the street from the
Texaco and stop alongside a silver Ford Ranger pickup belonging to
Watts. One of the occupants of the Buick (Langlois testified that
there were at least two) entered the service station’s convenience
store, and the silver pickup was driven around to the rear of the
store. The individual from the Buick left the store and walked
around to the silver pickup at the rear of the store. Two
individuals in the Buick then drove it away. The driver of the
silver pickup moved it to the east side of the station, parked it,
got out, and got into a dark colored, full-sized pickup truck
belonging to Robertson, who had just arrived at the service
station. The individual from the silver pickup and Robertson then
left the station in Robertson's truck.
Langlois never saw gasoline purchased for any of the vehicles
that had stopped at the station. The FBI agents who observed the
scene (Langlois and his relief) reported that the individuals in
the various vehicles appeared to be engaged in “counter-
surveillance” activity, i.e., looking for indications of any
suspicious circumstances or the presence of law enforcement
officers.
Not surprisingly, Williams’ brief recounts a significantly
5
different version of these events. According to Williams' version,
he and Watts left the restaurant and called Ms. Sawyer again, but
she was still not home, so they drove to Williams’ brother’s house
in Jackson. Williams read the paper and dozed for about an hour
while Watts continued the efforts to contact Ms. Sawyer. Never
able to reach her, the two headed back to Yazoo County, as Watts
had to report to work in Canton, Mississippi at 3:30 p.m. Watts
stopped at a Texaco station at Exit 108 on I-55 and filled his
truck with gasoline. Leaving the station, they saw Robertson
putting diesel fuel into his truck. Watts stopped beside
Robertson's truck, and Williams asked Robertson if he wanted to see
a roof that Williams had put on a “mansion” in Madison County.
Watts parked his truck; Watts and Williams got into Robertson’s
truck; and the three went to see the roof (despite Watts’ purported
appointment in Canton). Later, when those three returned to the
Texaco station in Robertson's truck, three cars of FBI and DEA
agents pulled in behind them, detained them for approximately 25-30
minutes, photographed them, and searched their persons as well as
Robertson’s and Watts’ trucks, but eventually released all three
without arresting them.
It is noteworthy that (1) Williams maintains that these events
took place at the Texaco station at Exit 108 on I-55, but Langlois
testified that they occurred at the service station across the
street from the Texaco station, and (2) Langlois never saw fuel
purchased for any of the vehicles.
Sometime after the vehicles left the service station,
6
Bradfield went to Chancey’s room at the Shoney’s Inn where, during
a video taped meeting, Bradfield chided Chancey for not coming to
Exit 108 so that the transaction could proceed more smoothly.
Chancey and Bradfield went downstairs and got into the Buick.
Inside the car, co-defendant Michael Roberts showed Chancey one
sack of money, and Bradfield pointed to another sack of money on
the floorboard. Chancey returned to his room alone, supposedly to
get the drugs, whereupon Bradfield and Roberts were arrested in the
Buick in possession of a 9mm machine pistol and $50,000.
Back at Exit 108, another FBI agent had observed Robertson
drive into the same service station. Williams was in the truck
with Robertson, who stopped beside Watts’ silver pickup. Watts got
out of his truck and into Robertson’s. As Robertson drove off with
Williams and Watts, two FBI agents stopped Robertson’s truck,
identified the three individuals, photographed them, and —
according to Williams' brief — searched their persons and the two
trucks but released them without arrest. No money or drugs were
found on any of their persons or in their vehicles.
Bradfield was indicted by a federal grand jury, charged with
conspiracy to possess with intent to distribute cocaine.1 He did
not testify at trial but relied primarily on an entrapment defense.
The district court nevertheless refused to instruct the jury on
entrapment. Bradfield was convicted and sentenced to 135 months,
to be followed by a four year period of supervised release, and was
1
Roberts and Robertson were also indicted and tried with
Bradfield and Williams.
7
ordered to pay a $1,000 fine.
Bradfield timely appealed, asserting that the district court
erred in: (1) failing to instruct the jury on entrapment, (2)
failing to instruct the jury on evaluating the credibility of a
compensated witness, and (3) denying a downward adjustment to
Bradfield’s sentence for acceptance of responsibility.
Williams was indicted by a federal grand jury, charged with
conspiracy to possess with intent to distribute cocaine. Williams
did not testify at trial but relied primarily on a defense of
innocent presence and association. He was convicted and sentenced
to 97 months, to be followed by a four year period of supervised
probation, and was ordered to pay a fine of $1,000. Williams filed
motions for a judgment of acquittal and a new trial, both of which
were denied by the district court.
Williams timely appealed, asserting that (1) the evidence was
insufficient to support his conviction, (2) the district court
erroneously denied his motion for a new trial, (3) the district
court denied his right to a speedy trial, (4) the district court’s
rulings were inconsistent, and (5) his counsel was ineffective.
II.
ANALYSIS
A. BRADFIELD
1. Jury instruction on entrapment
A defendant is entitled to an entrapment instruction when
there is sufficient evidence from which a reasonable jury could
8
find entrapment.2 It follows that when a defendant's properly
requested entrapment instruction is undergirded by evidence
sufficient to support a reasonable jury's finding of entrapment,
the district court errs reversibly by not adequately charging the
jury on the theory of entrapment.3
The critical determination in an entrapment defense is whether
criminal intent originated with the defendant or with the
government agents.4 Thus the threshold question is whether the
defendant was predisposed to commit the offense.5 To assert an
entrapment defense successfully, the defendant must first make out
a prima facie case that the government’s conduct created a
2
Matthews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883,
886 (1988); United States v. Collins, 972 F.2d 1385, 1413 (5th Cir.
1992), cert. denied, 507 U.S. 1017, 113 S. Ct. 1812 (1993). See
also United States v. Branch, 91 F.3d 699, 711-12 (5th Cir.
1996)(“As a general proposition a defendant is entitled to an
instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor . .
. .”)(citing Matthews, 485 U.S. at 63, 108 S. Ct. at 887).
3
See United States v. Schmick, 904 F.2d 936, 943 (5th Cir.
1990), cert. denied sub nom., 498 U.S. 1067, 111 S. Ct. 782
(1991)(“It has long been well established in this Circuit that it
is reversible error to refuse a charge on a defense theory for
which there is an evidentiary foundation and which, if believed by
the jury, would be legally sufficient to render the accused
innocent.”)(quoting United States v. Lewis, 592 F.2d 1282, 1285
(5th Cir. 1979)); United States v. Johnson, 872 F.2d 612, 622 (5th
Cir. 1989)(“When a defendant properly requests an instruction on a
theory of defense that is supported by some evidence, it is
reversible error not to adequately present the theory.”).
4
United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th
Cir.), cert. denied, 504 U.S. 978, 112 S. Ct. 2952 (1992)(citing
United States v. Nations, 764 F.2d 1073, 1079 (5th Cir. 1985));
United States v. Toro, 840 F.2d 1221, 1230 (5th Cir. 1988).
5
United States v. Ivey, 949 F.2d 759, 768 (5th Cir. 1991),
cert. denied sub nom., 506 U.S. 819, 113 S. Ct. 64 (1992).
9
substantial risk that an offense would be committed by a person
other than one ready to commit it.6 This requires the defendant to
show both (1) his lack of predisposition to commit the offense and
(2) some governmental involvement and inducement more substantial
than simply providing an opportunity or facilities to commit the
offense.7
Before our decision in United States v. Nations,8 it was
unclear how much evidence of non-predisposition and inducement the
defendant had to show before he becomes entitled to an entrapment
instruction.9 One line of decisions directed the trial judge to
give an entrapment instruction if the defendant presented any
evidence supporting his assertions, regardless of how flimsy or
insubstantial his evidence might be.10 An alternative view required
the defendant to present substantial evidence, which was defined as
more than just a smattering or a scintilla, before he could obtain
an entrapment instruction.11
6
Johnson, 872 F.2d at 620; United States v. Hudson, 982 F.2d
160, 162 (5th Cir.), cert. denied, 510 U.S. 831, 114 S. Ct. 100
(1993)
7
Pruneda-Gonzalez, 953 F.2d at 197; United States v. Andrew,
666 F.2d 915, 922 (5th Cir. 1982); United States v. Leon, 679 F.2d
534, 538 (5th Cir. 1982); United States v. Fischel, 686 F.2d 1082,
1085 (5th Cir. 1982).
8
764 F.2d 1073 (5th Cir. 1985).
9
Nations, 764 F.2d at 1080; Fischel, 686 F.2d at 1086 n.2.
10
See Perez v. United States, 297 F.2d 12 (5th Cir. 1961).
11
See Pierce v. United States, 414 F.2d 163 (5th Cir.), cert.
denied, 396 U.S. 960, 90 S. Ct. 435 (1969).
10
In Nations, we resolved these conflicting authorities, stating
that the defendant must show evidence that provides, at the least,
a basis for a reasonable doubt on the ultimate issue of whether
criminal intent originated with the government. In short, the
record must contain sufficient evidence of both inducement and lack
of predisposition to raise an entrapment issue; the entrapment
issue need not be presented to the jury if the evidence does not
raise the issue to that degree.12
The Supreme Court’s holding in Matthews — that a defendant is
entitled to an entrapment instruction when there is sufficient
evidence from which a reasonable jury could find entrapment —
comports with our pronouncement in Nations. Moreover, in the
recent decision of United States v. Branch,13 we rejected the
scintilla of evidence standard, recognized that Matthews resolved
the issue of the amount of evidence required, and reiterated the
standard — that evidence in support of a defensive theory must be
sufficient for a reasonable jury to rule in favor of the defendant
on that theory.14
Predisposition focuses on whether the defendant was an “unwary
innocent” or, instead, an “unwary criminal” who readily availed
himself of the opportunity to perpetrate the offense.15
12
Nations, 764 F.2d at 1080.
13
91 F.3d 699, 712-13 (5th Cir. 1996).
14
See also United States v. Stowell, 953 F.2d 188, 189 (5th
Cir.), cert. denied, 503 U.S. 908, 112 S. Ct. 1269 (1992).
15
Matthews, 485 U.S. at 63, 108 S. Ct. at 886 (citations
omitted).
11
Specifically, the question is whether the defendant intended, was
predisposed, or was willing to commit the offense before first
being approached by government agents.16 Government inducement
consists of the creative activity of law enforcement officials in
spurring an individual to crime.17 It need not overpower the
defendant’s will. Neither does the entrapment defense require
proof of threats or coercion.18
If the defendant makes a prima facie showing of both elements
— lack of predisposition and true inducement by the government —
he is entitled to a jury instruction on the issue of entrapment.19
At this juncture the burden shifts to the government to prove
beyond a reasonable doubt that the defendant was disposed to commit
the offense prior to first being approached by government agents.20
But evidence that government agents merely afforded the defendant
an opportunity or the facilities for the commission of the crime is
insufficient to warrant the entrapment instruction.21
Bradfield insists that the strong preponderance of the
16
Johnson, 872 F.2d at 620-21 (citing United States v. Yater,
756 F.2d 1058 (5th Cir.), cert. denied, 474 U.S. 901, 106 S. Ct.
225 (1985)).
17
Fischel, 686 F.2d at 1085.
18
Id.
19
United States v. Hudson, 982 F.2d 160, 162 (5th Cir.), cert.
denied, 510 U.S. 831, 114 S. Ct. 100 (1993); Fischel, 686 F.2d at
1085; Leon, 679 F.2d at 538; Andrew, 666 F.2d at 922-23.
20
Hudson, 982 F.2d at 162.
21
Matthews v. United States, 485 U.S. 58, 66, 108 S. Ct. 883,
888 (1988).
12
evidence adduced at trial demonstrates beyond serious question that
the government, through Chancey’s overly persistent efforts,
induced Bradfield to commit an offense that he was not predisposed
to commit, i.e., that the sheer number of contacts initiated by
Chancey without response or encouragement from Bradfield before
Bradfield finally succumbed to Chancey's ceaseless siren song
demonstrates both absence of predisposition and substantial
governmental coaxing. Thus, he argues, the district court erred in
refusing to instruct the jury on entrapment. Bradfield emphasizes
the following: (1) He met Chancey purely by coincidence on a
trucking job and passively listened in on a conversation between
Chancey and Guerero about guns and drugs; (2) Bradfield and Chancey
did not plan a drug deal on the day that they met, and Bradfield
left without attempting to get Chancey’s phone number; (3) Chancey
testified that the reverse-sting was his idea from the beginning
and that only his initiative and persistence with the FBI kept the
plan alive; (4) Chancey had a substantial contingency fee
arrangement with the FBI, and he owed approximately $1,500 in child
support; (5) Chancey admitted at trial that it was he who called
Bradfield and told him to contact Guerero if he wanted to do a
deal, not vice versa (and even then admitted subsequently that he
had not talked to Bradfield but only to Bradfield’s wife); and (6)
Chancey bombarded Bradfield into submission with approximately
eighteen calls during April 1992, in an unrelenting campaign to
entice Bradfield to do a drug deal, before he finally succumbed and
started to negotiate.
13
Predictably, the government counters that the evidence adduced
at trial showed Bradfield’s predisposition to commit the offense,
thereby obviating the necessity for an entrapment instruction.
First, the conversation between Bradfield, Chancey, and Guerero
during the trucking job regarding the trading of guns for cocaine
demonstrated that Bradfield was a willing participant even before
Chancey became a government informant. And it was Chancey who told
Bradfield that he (Chancey) would not do a drug deal until the
trucking job was completed.22 Second, Chancey testified that
Guerero had called him and said that Bradfield had contacted
Guerero about doing a deal with Chancey.23 Third, the numerous
recorded phone calls between Bradfield and Chancey revealed
Bradfield’s willingness to commit the offense. Finally, in a
recorded face-to-face conversation, Bradfield confided in Chancey
that he (Bradfield) was going to tell his friends who were
supplying the drug money that their price was $15,000 per kilo when
in actuality the price was $12,000 per kilo.
The government’s protestations to the contrary
notwithstanding, we conclude that Bradfield made a prima facie
showing of non-predisposition and inducement, with sufficient
evidence, under Matthews, upon which a reasonable jury could base
22
As noted earlier, it is unclear from Chancey’s testimony
whether (1) Bradfield actually participated in this conversation or
merely listened in, and (2) Bradfield attempted to arrange a drug
deal with Chancey that day or Chancey gratuitously offered his
future participation.
23
The trial judge admitted this double hearsay testimony over
an objection by Bradfield’s attorney, but the admissibility of this
testimony is not specifically challenged on appeal.
14
a finding that Bradfield was entrapped. First, there is sufficient
evidence that Bradfield was not disposed to commit the offense.
The record is devoid of evidence that Bradfield had ever shown an
interest or willingness to participate in a drug deal before he met
Chancey. And he continued to exhibit an absence of intent for
quite a while, despite Chancey's persistent overtures. Second, the
record contains a plethora of evidence of government inducement.24
The reverse-sting operation was Chancey’s idea, and he actively
solicited the FBI’s involvement in the plan. It was only through
his self-interested, persistent, and relentless efforts that
Chancey was finally able to persuade Bradfield to participate in
the drug deal. Furthermore, Chancey was driven, to the point of
obsession, by the prospect of substantial monetary reward from his
contingency fee agreement and was clearly motivated by his pressing
financial obligations.
As the evidence was more than sufficient to establish a prima
24
As neither side introduced into evidence either the tapes or
transcripts of the numerous recorded “courtship” calls that Chancey
admittedly made to Bradfield before he finally decided to
participate in the deal, we must infer that the content of those
calls could neither have helped nor harmed either the government’s
case or Bradfield’s. As it is obvious from the rest of the record
evidence, however, that Chancey repeatedly tried to tempt Bradfield
before he finally accepted Chancey’s invitation to deal, the only
appropriate inference is that Bradfield rejected (or at least never
responded affirmatively to) the myriad entreaties from Chancey
which preceded Bradfield’s eventual acceptance. It follows that
there is sufficient evidence and inferences of government
inducement to mandate the entrapment instruction. This same
evidence distinguishes the instant case from United States v.
Fischel, 868 F.2d 1082, 1086 (5th Cir. 1982), in which we found no
error in the district court’s refusal to instruct the jury on
entrapment when the defendant had made but a single hesitation of
acquiescence (“I can’t get involved in this.”) before he agreed to
and did participate in the drug transaction.
15
facie showing of both Bradfield’s lack of predisposition before
first governmental contact and the government’s protracted
inducement efforts, we cannot avoid the conclusion that the
district court’s refusal to instruct the jury on entrapment
constituted reversible error. As we are also convinced that but
for this error there is a substantial likelihood that the jury
verdict might have been favorable to Bradfield, we do not engage in
testing for harmlessness. To do so under these circumstances would
be a hollow act.
2. Jury instruction on compensated witnesses
Bradfield also contends that the district court committed
reversible error when it failed to instruct the jury specifically
on evaluating the credibility of a government informant witness who
is compensated pursuant to a contingency fee agreement. As
Bradfield raises this claim for the first time on appeal, we review
it for plain error.25
We have previously adopted a specific instruction for use in
this circuit regarding a paid informant’s testimony, and it
provides in pertinent part:
The testimony of . . . one who provides evidence against
a defendant as an informer for pay . . . must always be
examined and weighed by the jury with greater care and
caution than the testimony of ordinary witnesses. You,
the jury, must decide whether the witness’s testimony has
been affected by any of those circumstances, or by the
witness’s interest in the outcome of the case, or by
prejudice against the defendant, or by the benefits that
the witness has received . . . financially . . . . You
should keep in mind that such testimony is always to be
25
United States v. Lopez, 923 F.2d 47, 49 (5th Cir.), cert.
denied, 500 U.S. 924, 111 S. Ct. 2032 (1991).
16
received with caution and weighed with great care.26
The district court did not give this instruction but charged the
jury instead with a general instruction on the credibility of
witnesses, which provides in pertinent part:
[A]sk yourself a few questions: Did the person impress
you as honest? Did the witness have any particular
reason not to tell the truth? Did the witness have a
personal interest in the outcome of the case? Did the
witness have any relationship with either the government
or the defense?27
The government contends that the district court adequately
charged the jury, as the instruction given included language
similar to that found in the specific paid informant instruction.
We disagree: The district court should have given the specific paid
informant instruction, even if it had to do so on its own motion.
Moreover, its failure to do so was plain error.
Until 1987, we had a longstanding, per se rule that an
informant who was paid a contingency fee was not competent to
testify.28 By that time, however, we had virtually eliminated the
per se rule — except in the situation where the informant’s fee was
contingent on the conviction of a pretargeted individual — by
26
Pattern Jury Instructions (Criminal Cases) for the U.S. Fifth
Circuit, 1990 Edition, General and Preliminary Instruction 1.15,
“Accomplice-Informer-Immunity” at 26.
27
Id. at 20.
28
Williamson v. United States, 311 F.2d 441 (5th Cir. 1962),
cert. denied, 381 U.S. 950, 85 S. Ct. 1803 (1965). In Williamson,
the government, attempting to infiltrate a bootlegging operation,
paid its informant $10 per day in expenses and promised him $200 if
he could “catch” Williamson and another $100 for Lowrey.
17
carving out numerous exceptions to and distinctions of that rule.29
Then, sitting en banc in United States v. Cervantes-Pacheco,30 we
abolished the per se rule and held that an informant who is
promised a contingency fee by the government is not automatically
disqualified from testifying in a federal criminal trial; rather it
is for the jury to evaluate the credibility of the witness’s
testimony in light of, inter alia, the fee arrangement.31
29
See United States v. Garcia, 528 F.2d 580, 587 (5th Cir.),
cert. denied sub nom., 426 U.S. 952, 96 S. Ct. 3177 (1976)(fee must
be contingent on the conviction of a pretargeted individual;
Williamson does not apply where an informant is paid a subsistence
allowance and given a reward, as long as there is no evidence that
he had been promised a specific sum to convict a particular
person); Harris v. United States, 400 F.2d 264, 266 (5th Cir.
1968)(Williamson does not apply if the government knows that the
targeted individual was engaged in the illicit activity prior to
the institution of the contingent fee arrangement); and Henley v.
United States, 406 F.2d 705, 706 (5th Cir. 1969)(refusing to
reverse a conviction when the informant’s testimony is fully
corroborated at trial). At the time, it was unclear whether
Williamson only prohibited the government from agreeing to pay a
fee contingent on a conviction or whether it also prohibited the
government from paying a fee contingent on implication of a suspect
or some other governmental objective short of conviction. Compare
United States v. Lane, 693 F.2d 385, 387 (5th Cir. 1982)(applying
Williamson to fees contingent on implication) with United States v.
Gray, 626 F.2d 494, 499 (5th Cir.), cert. denied sub nom., 449 U.S.
1038, 101 S. Ct. 616 (1980)(applying Williamson to fees contingent
on conviction).
30
United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th
Cir. 1987), cert. denied sub nom., 484 U.S. 1026, 108 S. Ct. 749
(1988).
31
The need to treat witnesses who are compensated for their
testimony consistently with witnesses who are promised a reduced
sentence in exchange for their testimony, the latter being a
practice thoroughly ingrained in our criminal justice system,
persuaded us to abolish the per se rule. These two categories of
witnesses are indistinguishable in principle, and both should be
allowed to testify subject to the jury’s evaluation of the
credibility of their testimony. See Cervantes-Pacheco, 826 F.2d at
315.
18
In Cervantes-Pacheco, the government had routinely paid its
informant (1) a per diem, (2) his expenses, and (3) an amount at
the conclusion of each case based on the government’s evaluation of
the informant’s overall performance. The informant testified that
he could not predict from fees previously earned the amount of his
fee in the case at bar and that his fee did not depend on the
ultimate outcome of the case or on the arrest or conviction of any
defendant.32 Under these facts, which are clearly distinguishable
from those in Williamson, we not only eliminated the per se rule
which had barred the testimony of a witness who is promised a
contingency fee for the conviction of a pretargeted individual. We
also expanded the pool of competent witnesses to include all
witnesses who are compensated for their testimony, whether by a
contingency fee, a sentence reduction, or some other quid pro quo.
We reasoned that the structural protections inherent in cross-
examination and in the jury’s evaluation of the witness’s
credibility provide a check on such testimony. As the Supreme
Court stated in Hoffa v. United States:33
The established safeguards of the Anglo-American legal
system leave the veracity of a witness to be tested by
cross-examination, and the credibility of his testimony
to be determined by a properly instructed jury.
In mitigation of the result of our lifting the per se bar,
32
Cervantes-Pacheco, 826 F.2d at 311-12.
33
385 U.S. 293, 311, 87 S. Ct. 408, 418 (1966). In Hoffa, the
government, in exchange for the informant’s testimony, dropped or
failed to actively pursue state and federal charges against the
informant and paid his wife four monthly installments of $300 each
from government funds.
19
however, we imposed four restrictions on the admissibility of such
testimony.34 So long as these rules — which are designed to protect
against abuses — are not violated, it remains for the jury to
evaluate the credibility of the compensated witness.35
Our intention was for the admissibility of the testimony of a
compensated witness to be conditioned on compliance with these
rules, one of which calls upon the district court to instruct the
jury specifically on the suspect credibility of a compensated
witness. Even though the rule is expressed in non-mandatory terms,
we explicitly held in Cervantes-Pacheco that “the credibility of
the compensated witness . . . is for a properly instructed jury to
determine.”36 The Supreme Court in Hoffa agreed that the jury must
be properly instructed to perform its function adequately.37 And,
in subsequent cases we have required the specific instruction as a
34
First, the government must not deliberately use perjured
testimony or encourage the use of perjured testimony. Second, the
government must make a complete and timely disclosure to the
accused of the fee arrangement that it has made with the informant.
Third, the accused must have an adequate opportunity to cross-
examine the informant and government agents about any agreement to
compensate the witness. Finally, the trial court should give a
careful instruction to the jury pointing out the suspect
credibility of a fact witness who has been compensated for his
testimony. See Cervantes-Pacheco, 826 F.2d at 315-16 (citations
omitted)(emphasis added).
35
United States v. Rizk, 833 F.2d 523, 525 (5th Cir. 1987),
cert. denied, 488 U.S. 832, 109 S. Ct. 90 (1988)(citing Cervantes-
Pacheco, 826 F.2d at 315-16).
36
Cervantes-Pacheco, 826 F.2d at 316 (emphasis added).
37
Hoffa, 385 U.S. at 311, 87 S. Ct. at 418.
20
prerequisite to the admissibility of such testimony.38
As noted, we have set forth with precision the rules that
govern the admissibility of the testimony of a compensated witness.
Under the instant circumstances we are constrained to conclude that
the district court plainly erred in failing to give the jury the
specific instruction on evaluating the credibility of a compensated
witness. Ordinarily, though, our inquiry does not stop at a
determination of error; once we have found it, we test it for
harmlessness. We need not reach the question of harmlessness
today, however, for we have already found reversible error
constituting harm in the district court’s refusal to instruct the
jury on entrapment. Even if that alone were not sufficient, the
cumulative effect of these two errors would certainly require
reversal of Bradfield’s conviction.
A final point must be made in connection with jury
instructions and compensated witnesses. The district court was
required to give the appropriate compensated witness instruction on
its own. Moreover, when the government exercises its privilege of
introducing the testimony of a compensated witness, it is obligated
to ensure compliance with the rules governing the admissibility of
38
United States v. Goff, 847 F.2d 149, 161 (5th Cir.), cert.
denied sub nom., 484 U.S. 1026, 108 S. Ct. 749 (1988)(“[T]he trial
court must give the jury careful instructions pointing out the
suspect credibility of a fact witness who has been or expects to be
compensated for his testimony.”)(emphasis added); Rizk, 833 F.2d at
525(“The testimony of an informant to whom the government has
promised a fee is admissible if . . . the trial court, in
instructing the jury, has pointed out the suspect credibility of a
fact witness who has been compensated for his testimony.")(citation
omitted)(emphasis added).
21
such testimony — including the giving of the Cervantes-Pacheco
instruction. If, as here, the court fails to do so on its own and
the defendant fails to request such an instruction, the government
must. As an officer of the court, the prosecutor should have
fulfilled the government’s obligation by inviting the district
court to give the specific Cervantes-Pacheco instruction on
evaluating the credibility of a compensated witness. Henceforth
this holding must be implemented by the trial courts of this
circuit, and they must be assisted by government prosecutors in
such implementation when and if a reminder should be necessary.
3. Acceptance of responsibility
The district court denied a downward adjustment to Bradfield’s
sentence for acceptance of responsibility under U.S.S.G. §3E1.1.
As we are reversing his conviction and vacating his sentence, we
need not and therefore do not address Bradfield’s assignment of
error on this point. He remains free to re-urge his acceptance of
responsibility if he should be convicted in the future — by guilty
plea or by the jury — on the charges he faced here, or any of them.
B. WILLIAMS
1. Sufficiency of the evidence; Motion for new trial
In reviewing challenges to the sufficiency of the evidence, we
consider the evidence in the light most favorable to the verdict
and decide whether a rational jury could have found that the
government proved all of the elements of the offense beyond a
22
reasonable doubt.39 We resolve all inferences and credibility
determinations in favor of the jury’s verdict.40
To sustain a conviction for conspiracy to possess with the
intent to distribute cocaine, the government must prove beyond a
reasonable doubt that (1) a conspiracy existed, (2) the defendant
knew of the conspiracy, and (3) the defendant voluntarily
participated in the conspiracy.41 The government need not prove the
elements by direct evidence alone; their existence may be inferred
from the “development and collocation of circumstances.”42
That one’s mere presence at the crime scene or close
association with the conspirators, standing alone, will not support
an inference of participation in the conspiracy is long and well
established.43 We will not lightly infer a defendant’s knowledge
of and participation in a conspiracy,44 and the government may not
39
United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992)(citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct.
457, 469 (1942)); United States v. Castro, 15 F.3d 417, 419 (5th
Cir.), cert. denied sub nom., ___ U.S. ___, 115 S. Ct. 127 (1994).
40
Castro, 15 F.3d at 419.
41
Maltos, 985 F.2d at 746; United States v. Sacerio, 952 F.2d
860, 863 (5th Cir. 1992).
42
Maltos, 985 F.2d at 746 (quoting United States v. Vergara,
687 F.2d 57, 61 (5th Cir. 1982), cert. denied, 484 U.S. 957, 108 S.
Ct. 354 (1987)).
43
Maltos, 985 F.2d at 746; United States v. DeSimone, 660 F.2d
532, 537 (5th Cir. 1981), cert. denied sub nom., 455 U.S. 1027, 102
S. Ct. 1732 (1982); Sacerio, 952 F.2d at 863; United States v.
Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988); United States
v. Jackson, 700 F.2d 181, 185-86 (5th Cir.), cert. denied sub nom.,
464 U.S. 842, 104 S. Ct. 139 (1983).
44
Maltos, 985 F.2d at 747 (citing Jackson, 700 F.2d at 185).
23
prove a conspiracy merely by presenting evidence that places the
defendant in “a climate of activity that reeks of something foul.”45
Williams claims that the evidence is insufficient to support
his conviction, insisting that it does nothing more than establish
his presence at the crime scene and his association with others who
were participating in the illegal activity.46 Specifically,
Williams maintains that the government’s evidence shows only that
he (1) was seen at the Shoney’s restaurant with Bradfield,
Robertson, Watts, and Shawn, (2) participated in a portion of the
recorded conversation in the men’s room with Bradfield and Chancey,
and (3) together with Watts and Robertson, was detained at the
service station, searched, and released without arrest.
Our review of the record leads us to conclude that the
evidence adduced at trial and all reasonable inferences therefrom
are sufficient, when viewed in the light most favorable to the
verdict, to show beyond a reasonable doubt that Williams knew of
and participated in the conspiracy. First, Chancey testified that,
before going into the men’s room, Bradfield pointed to Williams,
indicating that he was the man who would bring the money. Second,
Williams did not merely listen but participated at length in the
recorded conversation in the men’s room during which he, Chancey,
and Bradfield discussed the exchange of the money for the cocaine.
45
Maltos, 985 F.2d at 747 (citing United States v. Galvan, 693
F.2d 417, 419 (5th Cir. 1982)).
46
Williams does not dispute that a conspiracy existed — only
that the evidence was insufficient to show beyond a reasonable
doubt that he (1) knew of and (2) participated in the conspiracy.
24
On this point, we have previously recognized that the knowledge and
participation required for a conspiracy conviction may be inferred
from evidence that the defendant was present during or participated
in one or more pertinent conversations with others who were parties
to a conspiracy.47 Both the temporal and substantive extent of
Williams’ participation in the men’s room conversation indicates
that his involvement was more substantial than mere presence or
association. Finally, in the men’s room conversation, Williams
agreed to go to the motel with Chancey and wait for Bradfield to
return with the rest of the money.
Viewed in the light most favorable to the jury’s verdict, the
evidence is sufficient to sustain Williams’ conviction. It follows
that the district court did not abuse its discretion in denying
Williams’ new trial motion grounded on an insufficiency of the
evidence.48
2. Speedy trial
Williams maintains that the district court denied his right to
a speedy trial. Whether a district court has complied with the
47
See Jackson, 700 F.2d at 185 (“The government has offered no
evidence indicating that [the defendant] was present during
conversations in which the conspiracy was discussed.”)(footnote
omitted); Espinoza-Seanez, 862 F.2d at 538 (“[Defendant] was shown
to have been with the conspirators in a car which they drove while
making arrangements furthering their drug trafficking, but he was
never shown to have heard any of the conversations or participated
in any of them.”)(referring to United States v. Gardea-Carrasco,
830 F.2d 41 (5th Cir. 1987)).
48
United States v. Webster, 960 F.2d 1301, 1305 (5th Cir.),
cert. denied sub nom., 506 U.S. 927, 113 S. Ct. 355
(1992)(reviewing district court’s denial of a motion for a new
trial for clear abuse of discretion).
25
Speedy Trial Act is a matter of law subject to our de novo review.49
The Act requires that a defendant be tried within seventy non-
excludable days of indictment; otherwise, the indictment shall be
dismissed on motion of the defendant.50 Nevertheless, the
defendant’s failure to move for dismissal prior to trial or entry
of a plea of guilty or nolo contendre constitutes a waiver of the
right to dismissal.51 When Williams failed to raise the alleged
error prior to trial, he waived his right to dismissal under the
Speedy Trial Act.
3. Inconsistent rulings by the district court
Williams posits that co-defendants to a conspiracy indictment
must be treated alike;52 consequently, he insists, the district
court erred in denying his motion for a new trial after that court
granted such a motion by Robertson. But Williams is wrong in his
basic premise: Our precedent does not require identical treatment
of co-defendants to a conspiracy indictment. It follows that
Williams’ claim is without merit.
49
United States v. Jackson, 30 F.3d 572, 575 n.2 (5th Cir.
1994)(citing United States v. Taylor, 487 U.S. 326, 108 S. Ct. 2413
(1988)).
50
18 U.S.C. § 3161(c)(1) (1994).
51
18 U.S.C. § 3162(a)(2) (1994).
52
Williams’ argument misinterprets United States v. Sheikh, 654
F.2d 1057 (5th Cir. 1981), cert. denied, 455 U.S. 991, 102 S. Ct.
1617 (1982), and United States v. Zuniga-Salinas, 945 F.2d 1302
(5th Cir. 1991), both of which have been subsequently overruled and
reversed, respectively, by United States v. Zuniga-Salinas, 952
F.2d 876 (5th Cir. 1992)(en banc)(holding that an inconsistent
verdict is not a bar to conviction where all other co-conspirators
are acquitted).
26
4. Ineffective assistance of counsel
Finally, Williams contends that his counsel was ineffective in
(1) waiving Williams’ speedy trial rights without his consent, (2)
subjecting Williams to public ridicule, scorn, and suspicion in his
hometown as a result of his delayed detention, (3) failing to
object timely to testimony implicating Williams in prior narcotics
deals, and (4) conceding Williams’ guilt in closing argument.
Generally we shall not address a claim of ineffective assistance of
counsel on direct appeal unless it has been raised before the
district court. By way of exception, though, we shall review an
ineffective assistance claim that was not previously raised to the
district court if the record is sufficiently developed with respect
to the merits of such a claim.53 As Williams’ claim was neither
raised in the district court nor sufficiently developed in the
record, we decline to address this alleged error on direct appeal.
III.
CONCLUSION
As the district court erred reversibly in refusing to instruct
the jury on entrapment, and also erred in not giving the jury the
paid informant instruction, we reverse Bradfield’s conviction,
vacate his sentence, and remand his case for a new trial. Failure
to give the entrapment instruction is alone sufficient to entitle
Bradfield to a new trial; coupled with the failure to give the
compensated witness instruction, these two errors mandate the
53
United States v. Tolliver, 61 F.3d 1189, 1222 (5th Cir.
1995)(citing United States v. McCaskey, 9 F.3d 368, 380 (5th Cir.
1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1565 (1994)).
27
result that we reach today and no other. When, during the course
of the new trial, the district court addresses the matter of jury
instructions, its rulings must comport with the holdings we make
today. For the foregoing reasons, the conviction of Williams is
affirmed; but the conviction of Bradfield is reversed and remanded
for a new trial, and accordingly his sentence is vacated.
AFFIRMED as to Williams; REVERSED, VACATED, and REMANDED as to
Bradfield.
28