Roger Keith Black v. The State of Wyoming ( 2020 )

IN THE SUPREME COURT, STATE OF WYOMING
2020 WY 65APRIL TERM, A.D. 2020
May 28, 2020
ROGER KEITH BLACK,
Appellant
(Defendant),
v. S-19-0153
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable William J. Edelman, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate
Counsel. Argument by Ms. Cooper.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak,
Assistant Attorney General. Argument by Mr. Zintak.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of any typographical or other formal errors so that correction may be made before
final publication in the permanent volume.
DAVIS, Chief Justice.
[¶1] Roger Black was charged with and convicted of one count of conspiracy to deliver
a controlled substance and four counts of delivery of a controlled substance based on
transactions with a confidential informant. He appeals the district court’s refusal to instruct
the jury on his entrapment theory of defense. We conclude that the evidence was sufficient
to warrant the requested instruction and reverse.
ISSUE
[¶2] Mr. Black presents a single issue on appeal, which we restate as:
Did the district court err when it refused to instruct the jury on
Mr. Black’s entrapment defense?
FACTS1
[¶3] Tabitha Charles worked as a confidential informant (CI) for the Wyoming
Department of Criminal Investigation (DCI) from September 1, 2017 through October
2017. As a CI, she was paid to make controlled drug purchases in the Sheridan area, and
in that period, made eight to ten controlled purchases of methamphetamine and earned
seven to eight hundred dollars.2
[¶4] DCI initially directed Ms. Charles to make controlled purchases from a target named
Linda Bradford. On or around September 24, 2017, Ms. Charles attended a party at Ms.
Bradford’s home, and Ms. Bradford introduced her to Roger Black. Mr. Black then became
a DCI target when Ms. Charles informed DCI that he had told her that if she was unable to
get methamphetamine from Linda Bradford, he could obtain it for her.3
[¶5] On September 25, 2017, at around 2:00 in the afternoon, Ms. Charles placed a call
to Mr. Black and asked to purchase a hubcap for $150.4 She made the call while at DCI
1
These facts are taken from the testimony and recorded buys admitted into evidence at Mr. Black’s jury
trial. They are presented in the light most favorable to Mr. Black in accordance with our standard of review,
which requires that we view the evidence in the light most favorable to a defendant who is refused a theory
of defense instruction. Garza v. State, 2020 WY 32, ¶ 18, 458 P.3d 1239, 1243 (Wyo. 2020) (quoting
James v. State, 2015 WY 83, ¶ 18, 357 P.3d 101, 105 (Wyo. 2015)).
2
When she made these controlled purchases, DCI would search Ms. Charles to ensure that she had no drugs
or cash on her person and would then provide her with cash to buy drugs from targets of DCI’s
investigations. DCI also outfitted her with a transmitter and monitored and recorded the controlled
purchases, and also maintained mobile surveillance.
3
The record does not tell us the circumstances of the conversation between Ms. Charles and Mr. Black,
who initiated the discussion of obtaining methamphetamine, or what precisely was said.
4
A hubcap is code for one gram of methamphetamine.
1
headquarters and with DCI monitoring the call. Mr. Black said he would need a minute
and would give her a holler.
[¶6] Mr. Black called Ms. Charles back at 4:10 that afternoon. She was still in the DCI
office when she received the call, and it was again monitored and recorded. Mr. Black
informed her that he struck out at the first place, but that he had one more place he could
try. He told her he needed to know how many hubcaps she wanted, to which she responded
that it depends on the “car place” he goes to and that she has $150 if he will cover the cost
of a hubcap for her. He told her that he did not have the money to cover it, and she swore
in response. He then asked if she wanted to go along, and she agreed to meet him at his
home in five minutes.
[¶7] After they met, the two drove to a dog park to wait for Mario Watt, the person from
whom Mr. Black hoped to buy the methamphetamine. Ms. Charles asked Mr. Black if he
was disappointed in her for wanting the drugs, and he responded that he had “been there,
done that,” and also that it would “be better if you didn’t do it.” A little later, Mr. Black
asked her, “Why do you want to get so much for anyway?” As they continued to wait for
Mr. Watt, they had the following exchange:
Black: But, I’m going to tell you right now, I mean, I want
you for my fucking self, period, I do …
Charles: Okay.
Black: I mean, that’s it, and uh, if it don’t happen, I’ll still be
your friend, you know. And that’s it, in a nutshell.
Charles: In a nutshell … [inaudible] [laughter]
Black: [Laughter] I figured you already knew that. What’d
you think, anyway, did you know that already? Of course you
did?
Charles: Well, kind of. I mean, you said you had motives, and
I assumed your motives.
Black: And it ain’t just the, fucking, I mean, I like you, I just
not to have sex, period, that’s it. You know, it’s like …
Charles: Oh. [Laughter] It’s not? Or it is?
Black: Not only.
Charles: Oh, okay. I was like ‘what’? [Laughter]
2
Black: [Laughter]
Charles: Fuck, Sally, don’t be too straightforward, okay?
Black: But you know that I’m saying, a little more than that,
you know? [Laughter]
Charles: Yeah.
[¶8] Mr. Watt eventually showed up at the dog park but did not have any
methamphetamine, and Mr. Black and Ms. Charles left the park to return to Mr. Black’s
apartment. On the way, he stopped at another location to see if he could find someone to
sell him methamphetamine but found no one there. At that point, he stated, “Can’t think
of anyone else offhand,” and returned to his apartment. Before they parted ways, Ms.
Charles asked, “You’ll just call me,” to which Mr. Black responded, “If that’s what you
want.” They continued to talk, with Mr. Black expressing doubt that she would return after
leaving his apartment and her assuring him that he would see her again and that she was
hoping that he would get a call.
[¶9] Ms. Charles returned to the DCI office and was searched and returned the buy
money. Later that evening, Mr. Black called her and told her that he was able to get some
methamphetamine for her. DCI again fitted her with a wire and gave her money to make
the buy. She then went to Mr. Black’s apartment and paid him $100 for what turned out
to be 1.2 grams of methamphetamine. Before he gave her the methamphetamine, he
expressed his reluctance because her mother was proud of her for not using drugs, but also
said that she was a grown woman who could decide for herself. Later in the conversation,
she asked why he would not get high with her, and he responded, “I’m trying to be good.”
She pressed again, stating, “Come on, Roger, please,” and he responded, “Please don’t do
that.” When she eventually left, she told him she would return to stay the night at his
apartment.
[¶10] Ms. Charles returned to the DCI office where she was searched and turned over the
1.2 grams of methamphetamine and the remaining fifty dollars of the buy money. She did
not return to Mr. Black’s apartment that evening.
[¶11] Ms. Charles was in contact with Mr. Black again concerning the possibility of
buying methamphetamine in late September or early October, and she learned that he had
been able to purchase a gram of methamphetamine and might be able to obtain two eight
balls for her.5 At 1:30 p.m. on October 2, 2017, Ms. Charles met with DCI and was again
fitted with a wire and given money to purchase methamphetamine from Mr. Black. During
that buy, she obtained seven-tenths of a gram of methamphetamine. She also talked with
him about getting the two eight balls and about her financial troubles and need for money.
5
An eight ball is an eighth of an ounce or 3.5 grams of methamphetamine.
3
She told him that she wanted to get the eight balls through him and not through Linda
Bradford, and that she had an extra $100 if she was able to do it through him. Toward the
end of their conversation, she told him she just needed to do one or two more buys to pay
off her fines, and then she would be able to go to Florida with him. He said he was not
sure if he could get the eight balls but that he would check with a couple of people.
[¶12] Later that same day, at about 5:30 p.m., Mr. Black contacted Ms. Charles and told
her he might be able to buy two eight balls of methamphetamine for her through Mario
Watt. Ms. Charles contacted DCI and was once again fitted with a wire and given $500 in
buy funds. Mr. Black picked her up at her home, and they drove to the same dog park they
had earlier visited. While they waited at the dog park, Mr. Black took a call and then told
Ms. Charles “he doesn’t have it.” Mr. Black then said they might not be able to get the
methamphetamine, and he and Ms. Charles briefly argued, because she believed he had
definitely said he could obtain it. He told her that “nothing’s a sure thing,” and that all he
had said was, “I bet I know who can hook us up.” He then said, “Hopefully this guy will
come through.”
[¶13] They continued to wait in Mr. Black’s vehicle at the dog park, and he again called
his source, who said he would be down. While they continued to wait, Mr. Black and Ms.
Charles had the following exchange:
Black: Hey, I didn’t even have to like coax you, or anything,
that last kiss you gave me. That was fucking nice. You just
kissed me.
Charles: Yep.
Black: That was good.
[¶14] Shortly after that, Ms. Charles asked Mr. Black if he had the $500 to cover the buy,
and he responded that he did not. They went back and forth on whether she would front
him the money to make the buy, and she instructed him to drop her off at her mother’s
house, that she would give him the money to make the buy, and that she would tell her
mother that she was going to stay the night with him. When he asked her what she wanted
him to get, she told him that she would prefer eight balls, but if he can only get grams, then
he should obtain those. He dropped her off and returned about forty minutes later with
what he called four good grams, which later weighed in at five grams with the baggie. Ms.
Charles then told him that she would come over to his house in about an hour and that she
had told her mom that she was going to stay the night there. After he left, DCI agents
picked her up, and she turned the drugs over to them. She did not return to Mr. Black’s
home that evening.
4
[¶15] On October 12, 2017, Ms. Charles met with DCI agents and informed them that she
believed that she would be able to purchase additional methamphetamine from Mr. Black,
again through Mario Watt. She was again fitted with a wire and given buy funds. The
controlled buy took about five hours and was originally called off after four hours because
Mr. Black had been unable to make contact with Mr. Watt. At that point Ms. Charles told
Mr. Black that the buy was off. She returned to DCI and was searched, the wire was
removed, and the buy funds were returned.
[¶16] About eight minutes later, Mr. Black called Ms. Charles and told her that he had
been able to reach Mario Watt, and the deal was on. Ms. Charles was again searched, fitted
with a wire, and provided buy funds. She then walked to her house and waited outside for
Mr. Black to pick her up. After he picked her up, he told her she could not go to the buy
with him, and they drove for several minutes before he dropped her at a gas station to wait
for him. During that drive, he told her that he would not do the deal if, as they had
discussed, the price was too high. They then had the following exchange:
Charles: For $600, I better not get anything less than fucking
six grams.
Black: So if he says five and a half grams, you don’t want it?
I’m just being real here. You know, I’m just saying for
instance.
Charles: If I get fucking five and a half grams, I’m gonna be
pissed, but I’ll take it. [Laughs] Just saying.
Black: Okay. Now don’t be pissed so pissed that you leave me
straight for three or four days and not give me no gas money
no more. Okay? I’m gonna need some gas money.
Charles: As long as you fucking help me out, I’ll help you out.
Black: Okay I will. What the fuck the deal is? What the fuck?
I ain’t getting nothing out of this shit. I’m committing a fucking
felony for you.
Charles: You are not committing nothing because nobody’s
fucking going to say a fucking word.
[¶17] Mr. Black returned about thirty minutes after dropping Ms. Charles at the gas
station. He told her, “I did the best I could for you,” and gave her what later weighed in at
six grams of methamphetamine with the baggie. He then told her, “Take care of your
tickets, don’t worry about me.” As they parted, Ms. Charles promised to see him later.
5
She was then picked up by DCI and was searched and turned over the drugs. She did not
go to Mr. Black’s home that evening.
[¶18] Mr. Black was arrested on October 31, 2017, and the State filed an information
charging him with one count of conspiracy to deliver a controlled substance and four counts
of delivery of a controlled substance. Before trial, he asserted entrapment as his theory of
defense and requested that the jury be instructed with the criminal pattern instruction on
entrapment.
[¶19] A jury trial was held December 19-21, 2018, and after both parties rested, Mr. Black
renewed his request for an entrapment instruction. The State objected to the instruction. It
did not argue that Mr. Black was predisposed to commit the charged crimes, but instead
claimed there was no evidence of extraordinary temptation or inducement that would
warrant the giving of the instruction. Defense counsel responded:
Well, Your Honor, I think that the opposite is the case.
I think there’s been testimony that she solicited these
buys.
There’s been testimony that she asked Black to use
drugs with her.
There’s been testimony that she lied repeatedly to get
him to use drugs.
There were at least, not inducements, but suggestions
[to] have a romantic or sexual relationship.
There’s evidence that at least on one occasion Mr. Black
declined to use drugs with her and encouraged her not to use
drugs.
So, I think this – the Court has some discretion in this
matter, certainly.
But I believe that this is evidence that Mr. Black did not
have a stash of drugs ready and waiting to deliver to people.
So, I think in this matter, the evidence is – is sufficient
to at least give the instruction, Your Honor.
[¶20] The district court refused Mr. Black’s entrapment instruction. It explained:
6
The Court is well familiar with the law of entrapment in
the State of Wyoming.
And the Supreme Court has repeatedly held that a mere
offer to purchase does not constitute sufficient evidence to
warrant an entrapment instruction.
The Court’s recollection of the testimony is that Ms.
Charles was introduced to Mr. Black through a third person
who was also a purveyor of methamphetamine.
It does not appear in the record that that introduction
was generated at the behest of the State. Instead, it was just
sort of a happenstance sort of occurrence.
It was after that that Ms. Charles approached the
Defendant and requested controlled substances.
There does not appear to be any sort of extraordinary
effort on the part of the State to tempt Mr. Black into providing
that controlled substance.
There were no promises made.
There was no indication by Ms. Charles that she had
offered to purchase the drugs at a rate greater than the going
rate of methamphetamine.
There is no testimony to establish that she made any
representations that Mr. Black would receive anything other
than money in exchange for the controlled substances.
And so at this time I find that there is insufficient
evidence to warrant instructing the jury on entrapment.
The defense clearly will be able to argue about the
credibility of Ms. Charles, given her testimony. But I am going
to decline to instruct the jury on that subject.
[¶21] The jury returned a verdict of guilty on all counts, and the district court sentenced
Mr. Black to concurrent prison sentences of ten to fifteen years on each count. Mr. Black
filed a timely notice of appeal to this Court.
7
STANDARD OF REVIEW
[¶22] “The failure to give an offered instruction on the law related to a theory of defense
is a due process issue, which this Court reviews de novo.” Hopkins v. State, 2019 WY 77,
¶ 18, 445 P.3d 582, 588 (Wyo. 2019) (quoting Tingey v. State, 2017 WY 5, ¶ 27, 387 P.3d
1170, 1178 (Wyo. 2017)). An erroneous refusal of a theory of defense instruction is
“reversible error per se.” Swartz v. State, 971 P.2d 137, 139 (Wyo. 1998) (quoting Oien v.
State, 797 P.2d 544, 549 (Wyo. 1990)); see also United States v. Ortiz, 804 F.2d 1161,
1163-64 (10th Cir. 1986) (“This right is so important that the failure to allow a defendant
to present a theory of defense which is supported by sufficient evidence is reversible
error.”). We have also said:
Any competent evidence is sufficient to establish a defense
theory even if it consists only of testimony of the defendant.
Best v. State, 736 P.2d 739, 745 (Wyo. 1987). We view the
evidence in a light favorable to the accused and the accused’s
testimony must be taken as entirely true to determine if the
evidence is competent. Duckett v. State, 966 P.2d 941, 944
(Wyo. 1998). Even if the court deems the evidence to be weak,
or unworthy of belief, the instruction must be given if a jury
could reasonably conclude the evidence supports the
defendant’s position. Id.Garza, ¶ 18, 458 P.3d at 1243 (quoting James, ¶ 18, 357 P.3d at 105); see also Harnetty v.
State, 2019 WY 21, ¶ 29, 435 P.3d 368, 374 (Wyo. 2019) (“We review whether there is
‘competent’ evidence to support a proposed theory of defense applying the same standard
we apply to review sufficiency of the evidence appeals.”) (citing Bruce v. State, 2015 WY
46, ¶ 80, 346 P.3d 909, 932-33 (Wyo. 2015)).
DISCUSSION
[¶23] “Entrapment law serves the purpose of ensuring that a defendant is not punished
who, but for government encouragement, would not have committed an offense.” Nelson
v. State, 2010 WY 159, ¶ 15, 245 P.3d 282, 286 (Wyo. 2010) (citing Rivera v. State, 846
P.2d 1, 4 (Wyo. 1993)). Wyoming follows a subjective theory of entrapment, Rivera, 846
P.2d at 3, which requires a two-part inquiry.
The defense has two related elements: 1) government
inducement of the crime, and 2) a lack of predisposition on the
part of the defendant to engage in the criminal conduct.
Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886,
99 L.Ed.2d 54 (1988). The threshold question is whether the
8
police somehow induced the defendant to act illegally or
merely provided an opportunity to commit the crime. Rivera v.
State, 846 P.2d 1, 3 (Wyo.1993). Once it is determined that
inducement is involved, the defendant’s predisposition comes
into question. Id.Swartz, 971 P.2d at 140.
[¶24] “Once a credible entrapment defense is raised, the prosecution has the burden of
proving, beyond a reasonable doubt, that a defendant was not entrapped.” United States v.
Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005) (quoting United States v. Young, 954 F.2d
614, 616 (10th Cir. 1992)); see also 2 Wayne R. LaFave, Substantive Criminal Law §
9.8(f)(4) (3d ed. Oct. 2019 update) (“[O]nce the defendant’s threshold responsibility is
satisfied (even if by evidence introduced during the prosecution’s case-in-chief), the
burden is then on the government to negate the defense by showing beyond a reasonable
doubt defendant’s predisposition or an absence of inducement.”) (footnotes omitted).
Where the evidence of entrapment is conflicting, the question is one for the jury. Nelson,
¶ 22, 245 P.3d at 287 (citing LaFleur v. State, 533 P.2d 309, 314 (Wyo. 1975); Montez v.
State, 527 P.2d 1330, 1332 (Wyo. 1974)).
The quantum of evidence required to submit an entrapment
defense to a jury has been described as “any evidence,” “some
evidence,” “slight evidence,” and “more than a scintilla.” We
believe these phrases are not useful because the ultimate test is
whether the evidence (regardless of amount) creates a fact
issue requiring submission to the jury.
Ortiz, 804 F.2d at 1166 n.4.
[¶25] We turn then to whether the evidence created a fact issue on the questions of
inducement and predisposition.
A. Inducement
[¶26] Concerning the question of inducement, we have said:
Entrapment does not arise where one is ready to commit the
offense, given but the opportunity. Higby v. State, 485 P.2d
380, 384 (Wyo. 1971). Suspected persons can be tested by
being offered an opportunity to transgress the law; however,
they may not be put under any extraordinary temptation or
inducement. Id. With respect to what constitutes undue
persuasion or enticement, the question is not one of laying a
9
trap or trickiness or deceit, but one of seduction or improper
inducement to commit a crime. Swartz, 971 P.2d at 140.
Inducement may arise from persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises
of reward, or pleas based on need, sympathy or friendship. Id.
Nelson, ¶ 15, 245 P.3d at 286.
[¶27] Viewed in the light most favorable to Mr. Black, the evidence showed that he was
interested in a romantic relationship with Ms. Charles, which the State does not dispute.
Viewed in that same light, that evidence could potentially persuade jurors that Ms. Charles
played on that desire to induce him to find and obtain methamphetamine for her. For
example, after nearly every buy or attempted buy, she assured him that she would return to
spend time or the night with him. On one occasion, she told him she would go to Florida
with him after one or two more buys, and apparently on at least one occasion she kissed
him. She in fact admitted that she intended to induce him to obtain the methamphetamine
by leading him on when she testified that “Part of the lifestyle of – or living in the lifestyle
of drugs is to, I hate to say it, but to lead people on, so that you can get what you want in
that life.” Viewing the evidence as our standard of review requires, we must conclude that
the evidence created a fact issue for the jury on the question of inducement.
[¶28] We are not persuaded otherwise by the cases on which the State relies, as they either
support giving the issue to the jury or are distinguishable. For example, in United States
v. Young, 954 F.2d 614 (10th Cir. 1992), the following occurred:
The Internal Security Division of the Internal Revenue Service
(IRS) placed a female undercover informant, Jacqueline
McSwane, at an IRS automated collection service site in
Englewood, Colorado, to assist in an investigation of suspected
illegal drug activity at the site. Defendant was employed by the
IRS at Englewood and became acquainted with McSwane. In
a telephone conversation, defendant told McSwane that he
liked to smoke marijuana, and McSwane responded that she
too liked to smoke marijuana. During the next four months,
defendant and McSwane discussed the availability of
marijuana. Some time later McSwane, acting under the
direction of the government, offered to sell defendant a large
amount of marijuana. Defendant agreed to purchase some
marijuana and then arranged for another party, Rosa Casillas,
to purchase nine pounds. Defendant told Casillas that the
marijuana cost $900 per pound for nine pounds when in fact
the cost was $800 per pound. Defendant intended to use the
deception to acquire a tenth pound of marijuana for himself at
10
no cost. The sale went off as planned, and defendant and
Casillas were in the process of leaving to get money for an
additional fifteen pounds when they were arrested.
Young, 954 F.2d at 615-16.
[¶29] The issue in Young was not whether the jury should have been instructed on the
entrapment defense. The trial court gave the instruction but denied the defendant’s motion
for a judgment of acquittal, by which he had asserted he was entrapped as a matter of law.
Young, 954 F.2d at 615. In upholding the lower court, the Tenth Circuit agreed that “there
was sufficient evidence to create a question of fact for the jury regarding the defense of
entrapment.” Id. at 617. Given that the facts in Young arguably reflect less evidence of
inducement and more of predisposition, which we discuss below, we fail to see how it
supports refusing an entrapment instruction in this case. Instead, the decision confirms the
minimal evidence required to support an entrapment instruction.
[¶30] The State also directs us to United States v. Elder, 90 F.3d 1110, 1135 (6th Cir.
1996), in which the court found no evidence to support an entrapment instruction where an
informant had a sexual relationship with the defendant. The decision is factually
distinguishable. In Elder, the defendant was a managing member of a Florida gang
involved in a wide range of criminal activities, and the evidence showed that he had been
involved in those activities long before he met the informant. Id. That type of evidence is
entirely absent from the record before us. Moreover, while the Sixth Circuit also found
that Elder’s transactions with the informant preceded any sexual relationship between the
two, the court did not announce a bright line rule that a physical relationship must be
consummated before an improper inducement may be found. Id.[¶31] United States v. Cuervelo, 949 F.2d 559, 567 (2nd Cir. 1991), which the State cites
for the proposition that a showing must be made that the government “consciously set out
to use sex as a weapon in its investigatory arsenal,” is likewise distinguishable. Cuervelo
concerned an outrageous government conduct defense, not an entrapment defense. That
defense “examines neither the defendant’s predisposition to commit the crime nor the
likely effect of police conduct on [the defendant]” and instead focuses purely on the
conduct of the police as it affects the fairness of the charges. Rivera, 846 P.2d at 4. The
holdings in Cuervelo therefore do not restrict the circumstances under which a defendant
may assert an entrapment defense.
[¶32] In sum, the State’s reliance on the above cases and the others cited in its brief to
support the refusal of an entrapment instruction is misplaced. The cases simply do not
change the fact that only minimal evidence is required to support a defendant’s request for
a theory of defense instruction. The question is not whether Mr. Black proved his case for
government inducement, but is instead whether the evidence was sufficient to create a fact
issue to be decided by a properly instructed jury. Nelson, ¶ 27, 245 P.3d at 288. The
11
answer to that question is yes, so we turn to the question of Mr. Black’s predisposition to
commit the crimes.6
B. Predisposition
[¶33] Predisposition is determined by “looking to the totality of circumstances involved
in the particular transactions in question.” Janski v. State, 538 P.2d 271, 276 (Wyo. 1975).
In asking whether a defendant was “predisposed” to a certain
crime, we ask about his “inclination to engage in the illegal
activity . . . [his] read[iness] and willing[ness] to commit the
crime.” United States v. Young, 954 F.2d 614, 616 (10th Cir.
1992). The necessary inclination, this court has said, may be
suggested by evidence of the “defendant’s desire for profit, his
eagerness to participate in the transaction, his ready response
to the government’s inducement offer, or his demonstrated
knowledge or experience in the criminal activity under
investigation.” United States v. Fadel, 844 F.2d 1425, 1433
(10th Cir. 1988).
United States v. Dykes, 718 F.3d 1282, 1291-92 (10th Cir. 2013); see also Janski, 538 P.2d
at 275 (quoting Anno., Entrapment-Narcotics Offense, 33 A.L.R.2d 886, § 3) (looking to
whether defendant “offered to make a sale prior to any solicitation, or was willing to do so,
as shown by ready complaisance”).
6
We also note that the fact that there were multiple transactions between Mr. Black and Ms. Charles does
not provide a basis to take the question of inducement from the jury. Where there is evidence of “closely
connected transactions without any intervening events, a jury question may be present as to whether the
subsequent transaction arose from the government’s inducement of prior transactions.” Nguyen, 413 F.3d
at 1180. The question is whether the evidence shows “a factual distinction between defendant’s manifested
state of mind during those [multiple] transactions.” Id.; see also Sherman v. United States, 356 U.S. 369,
374, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958) (“It makes no difference that the sales for which petitioner
was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement
but part of a course of conduct which was the product of the inducement.”); United States v. Beal, 961 F.2d
1512, 1517 (10th Cir. 1992) (“Because the two counts were founded upon one continuous course of
conduct, it follows that the original inducement which ‘beguiled’ [the defendant] carried over to the second
charge.”). Here, the record contains evidence that from the first transaction through the final one, Mr. Black
had a continuing romantic interest in Ms. Charles. In the first attempted buy, he openly expressed his
feelings for her, and in the final buy, he stated that he was committing a felony for her, declined to take gas
money from her, and urged her to use any sale proceeds to pay her outstanding fines. In turn, she repeatedly
told him she would spend the night with him and on at least one occasion told him she would go to Florida
with him. There is thus at least some evidence from which the jury could find that each transaction was
motivated by the original inducement of a relationship with Ms. Charles, and that Mr. Black’s state of mind
did not change in that respect over the course of the transactions.
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[¶34] The question before us is again whether the record contains sufficient evidence to
create an issue of fact concerning Mr. Black’s predisposition to commit the crimes. In that
regard, when we view the record in Mr. Black’s favor, it shows that: he twice expressed
his view that Ms. Charles should not do methamphetamine; he questioned why she needed
so much methamphetamine; he declined to take methamphetamine with Ms. Charles due
to his desire to avoid a parole violation; he did not have a ready supply of
methamphetamine available to sell or even a ready and reliable supplier; he did not have a
ready supply of cash to purchase the methamphetamine; he felt he was committing a felony
for Ms. Charles; and he did not profit from the transactions with Ms. Charles.
[¶35] The Tenth Circuit has cited the same or similar factors as relevant to the question of
predisposition.
Throughout his testimony, Sgt. Mayes reiterated that at no time
did Mr. Beal appear reluctant to deal with him or otherwise
indicate Mr. Beal’s actions were not the product of his free
will. Mr. Silva, however, repeated statements made to him by
Mr. Beal that he was not dealing in “dope,” and that he was
working and going to school. Indeed, Mr. Silva testified that
after the second transaction, Mr. Beal stated, “You know,
Roger, I’m not selling dope. I done this as a favor to you.”
Beal, 961 F.2d at 1515. By footnote, the court added:
Made clear in the evidence are several other facts. First, at no
time did Mr. Beal have methamphetamine in his possession to
sell. Second, the purchase money received from Sgt. Mayes
was given by Mr. Beal to a third person. Third, no evidence
was produced showing defendant took money for himself.
Fourth, Mr. Beal’s only source of drugs was through Bob, who
was not always able to deliver the requested substance. While
these facts are not dispositive, they do bear on the question of
Mr. Beal’s predisposition to deal in controlled substances.
Id. at 1515 n.4.
[¶36] While this case and Beal do not line up factor for factor, the similarities illustrate
the factual dispute concerning Mr. Black’s predisposition to commit the crimes here. In
particular, Mr. Black stated he was obtaining the methamphetamine and getting nothing
out of it, suggesting he was doing it as a favor to Ms. Charles. For the larger purchases, he
gave Ms. Charles’ funds directly to a third person, and there is no evidence he profited
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from any of the transactions.7 Additionally, like the defendant in Beal, Mr. Black did not
seem to have a particularly ready and reliable source of methamphetamine, often needing
to try multiple sources and commenting that he was not sure what he could get, if anything.
Given this record, we must conclude that Mr. Black made the required minimal showing
that a question of fact existed as to whether he was predisposed to commit these crimes.
[¶37] The State nonetheless contends that the question was not one for the jury. It asserts
that Mr. Black volunteered to obtain the methamphetamine for Ms. Charles and that that
act of volunteering conclusively established his predisposition to commit the crimes. In
support, it points to the testimony of an officer involved in the controlled buys and to Ms.
Charles’ testimony. The officer testified, “Ms. Charles informed us that, from
conversations with the Defendant, that the Defendant had told Ms. Charles that if Ms.
Charles was unable to get methamphetamine from Ms. Bradford, the Defendant would
obtain and sell methamphetamine to Ms. Charles.” Ms. Charles testified:
Q. Did you meet with Special Agent Chad Quarterman and
Special Agent Mike Gale, and have a conversation with them
about purchases from the Defendant?
A. Yes, sir.
Q. What was the nature of the conversation that you had
with Agents Gale and Quarterman?
A. Just that Roger Black had – and I had spoke about
getting methamphetamine.
[¶38] We disagree that this testimony conclusively established Mr. Black’s predisposition
to sell methamphetamine. The testimony does not tell us what was said between Mr. Black
and Ms. Charles, what the circumstances of that conversation were, who approached
whom, or who initiated the discussion of obtaining the methamphetamine. In short, the
testimony did not establish that Mr. Black volunteered his services as argued by the State.8
[¶39] We do not intend to suggest that the testimony concerning Ms. Charles’ initial
contact with Mr. Black, or any of the other evidence cited by the State in support of
7
For at least the two larger purchases of methamphetamine, Ms. Charles fronted Mr. Black the money to
make the purchases, meaning she allowed him to take the money before he provided her the product. While
we agree with the State that the fronting of money to make a buy is not dispositive on the question of
inducement or predisposition, Beal shows that it is certainly a relevant consideration.
8
We also reject the State’s assertion that the evidence cannot support a finding that DCI was targeting Mr.
Black when the conversation took place. At the time of their conversation, Ms. Charles was on the DCI
payroll as a confidential informant and any efforts she made to obtain methamphetamine were undertaken
in that role. That is sufficient evidence to allow a jury to determine whether Mr. Black was targeted.
14
predisposition, was not relevant to the question. Our holding is simply that none of the
evidence or testimony cited, by either the State or Mr. Black, conclusively established
predisposition or a lack thereof. The evidence was in dispute, and predisposition was
therefore a question for the jury.
CONCLUSION
[¶40] We have recognized that an entrapment defense looms when law enforcement
participates in a crime, Jackson v. State, 522 P.2d 1286, 1288 (Wyo. 1974), but “‘[i]t is
only when the government’s deception actually implants the criminal design in the mind
of the defendant that the defense of entrapment comes into play.’” Montez, 527 P.2d at
1332 n.2 (quoting United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1645, 36 L.Ed.2d
366 (1973)). Here, the facts are in dispute on the question of whether law enforcement
implanted the criminal design in Mr. Black’s mind, or whether it simply gave him an
opportunity to act on his predisposition. The defense was therefore in play and was a
question on which the jury should have been instructed.
[¶41] We reverse and remand for proceedings consistent with this opinion.
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