United States v. Reed
U.S. Court of Appeals for the First Circuit
United States v. Reed
Opinion
USCA1 Opinion
October 14, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2309
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL L. REED,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on October 5, 1992, is
amended as follows:
On cover sheet, the judge below should be listed as "[Hon.
D. Brock Hornby, U.S. District Judge]" instead of "[Hon. Gene
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Carter, U.S. District Judge]".
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October 5, 1992 ____________________
No. 91-2309
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL L. REED,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Roderick B. O'Connor, by Appointment of the Court, for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Jay P. McCloskey,
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Assistant United States Attorney, were on brief for the United States.
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CAMPBELL, Senior Circuit Judge. Daniel L. Reed
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appeals from a judgment of conviction entered in the United
States District Court for the District of Maine. After a
jury trial, Reed was convicted on August 21, 1991, of two
counts of knowingly and intentionally distributing cocaine
within 1,000 feet of a school in violation of 21 U.S.C.
841(a)(1) and 860.
Reed was shown to have participated in two drug
transactions at a motel in Damariscotta, Maine, in February
1991. On both occasions, Reed was invited to the motel by
his acquaintance Darryl Witham to meet a potential cocaine
purchaser. Unbeknownst to Reed, Mr. Witham was a government
informant and the purported buyer was actually an agent of
the Maine Bureau of Intergovernmental Drug Enforcement
(BIDE). On both occasions Reed arrived at the motel with
packages containing cocaine, transferred them to the BIDE
agent, and accepted cash in return. At trial, Reed raised
the defense of entrapment. He conceded to having
participated in the cocaine transactions, but argued that the
government, through Witham, induced him to participate and
that he sold the drugs only as an agent of Witham.
Appellant raises three issues on appeal. First, he
argues that it was error for the district court to have
allowed it to be brought out at trial that he had previously
been convicted for the possession of cocaine. The substance
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of his contention is that a prior conviction for possession
is not relevant to a defendant's predisposition to distribute
cocaine, and is mere character evidence barred by Fed. R.
Evid. 404(b).1
We need not reach the merits of this contention,
however, because appellant failed to make timely objection to
the admission of this evidence. Indeed, Reed's pretrial
motion in limine effectively waived objection to the fact of
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his prior conviction for cocaine possession. In that motion,
Reed moved "to limit any inquiry regarding his prior
convictions to the fact that he was convicted of possession
of cocaine in 1990 and to exclude any details beyond the mere
fact of that conviction and the date of the offense charged."
Defendant's Motion In Limine to Limit Evidence of Prior
Convictions at 1. At the pretrial hearing, defense counsel
merely argued that admitting the details surrounding that
conviction would raise "the danger of litigating collateral
issues;" counsel also argued that "we have to apply Rule 403
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1. Fed. R. Evid. 404(b) provided:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident.
(Effective prior to Dec. 1, 1991).
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[not 404(b)] to the evidence here and look at the probative
value versus the potential prejudice here in litigating the
underlying issues." Transcript of Hearing on Motions at 11-
12.2 The district court denied defendant's motion,
reasoning that "where entrapment is raised as an issue, that
the inquiry [into the details of a prior conviction] is no
longer collateral but rather a direct matter of concern for
the fact finder." Transcript of Hearing on Motions at 22.
Because defendant's predisposition is at issue, the judge
continued, "it really is the underlying conduct, perhaps more
than the conviction itself, which becomes a material issue
concerning the previous offense rather than collateral."
Transcript of Hearing on Motions at 23.
The police officer thereafter testified at trial,
without objection, to having arrested Reed on the possession
charge and to the details mentioned in note 2. Reed's
girlfriend, a defense witness, testified without objection
that Reed refused Witham's invitations to deal in drugs
because Reed was on probation for cocaine possession.
Finally, Reed himself testified on direct and cross-
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2. The government responded that it only intended to present
testimony as to "the fact that he was arrested, stopped while
driving a vehicle in Kittery, Maine; that he and two other
people were in the vehicle; and that approximately an ounce
of cocaine was found in the front seat; [that] he was the
driver of the vehicle; and that he subsequently pled to a
charge of possession of cocaine." At trial, the government's
evidence about the conviction, elicited through the police
officer's testimony, was in fact limited to these matters.
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examination about the circumstances of his arrest, conviction
and subsequent probation for possession of cocaine in 1990,
contending that his being on probation for this offense made
him particularly reluctant to deal in drugs in 1991, the time
of the present offenses.
Reed's willingness, stated in the motion in limine,
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to allow evidence of the fact of his conviction in 1990 for
cocaine possession is fatal to his present argument that all
evidence of that conviction should have been excluded under
Rule 404(b). See United States v. Vest, 842 F.2d 1319, 1325
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(1st Cir.), cert. denied, 488 U.S. 965 (1988). Neither in
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the motion in limine nor later did he make any such argument
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below. See Fed. R. Evid. 103(a). In the motion in limine he
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only requested exclusion of the details surrounding the prior
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offense, and was silent even as to this limited objection
when those details were later elicited. Indeed, not only did
the motion in limine effectively waive objection to the fact
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of conviction, but we doubt the motion in limine sufficed by
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itself to preserve the question of the admissibility of the
details for appeal. A motion in limine without subsequent,
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contemporaneous objection at trial, or other factors not
present here, is ordinarily insufficient to preserve an
evidentiary ruling for appeal. See Fed. R. Evid. 103(a);
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Vest, 842 F.2d at 1325; United States v. Griffin, 818 F.2d
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97, 105 (1st Cir.), cert. denied, 484 U.S. 844 (1987)
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(holding that "to raise and preserve for review [such a]
claim . . . a party must obtain the order admitting or
excluding the controversial evidence in the actual setting of
the trial."); see also McEwen v. City of Norman, 926 F.2d
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1539, 1544 (10th Cir. 1991) ("A party whose motion in limine
has been overruled must nevertheless object when the error he
sought to prevent by his motion occurs at trial."); Wilson v.
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Waggener, 837 F.2d 220, 222 (5th Cir. 1988) ("A party whose
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motion in limine is overruled must renew his objection when
the evidence is about to be introduced at trial.").
Even assuming we were to hold that the motion in
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limine preserved the objections stated therein, appellant
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would fail, as the objection was presented solely on Rule
4033 grounds, i.e., prejudice, confusion and waste of time.
Given that Reed effectively waived any objection to placing
before the jury the actual fact of his prior cocaine
conviction, the court clearly did not abuse its discretion
under Rule 403 in refusing to exclude material details of the
prior offense, such as the amount of cocaine. These details
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3. Fed. R. Evid. 403 provides:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
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tended to clarify for the jury the extent to which the prior
conviction might or might not be probative of Reed's
predisposition to distribute cocaine. While Reed later made
other, different objections to the testimony of the
government's witnesses, none of these, any more than the
motion in limine itself, served to preserve the question of
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the admissibility of the evidence under Rule 404(b). See
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Vest, 842 F.2d at 1326; United States v. Munson, 819 F.2d
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337, 340 (1st Cir. 1987).
Absent timely objection to the admission of the
prior conviction evidence, our review is solely for plain
error. Munson, 819 F.2d at 340. No plain error existed
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here. As noted, Reed effectively waived objection to the
fact of the 1990 conviction, apparently because he wished to
use the fact that he was on probation for that offense to
strengthen his argument that he was not predisposed to deal
in cocaine when approached by the undercover agents in 1991.
Clearly, he was entitled to make such a strategic choice
without interference from the district judge. Furthermore,
wholly apart from the waiver, Reed's prior cocaine possession
conviction was, at very least, arguably admissible under
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Section 404(b) to help the government meet its burden to
establish that he was predisposed to sell cocaine. Even if
Reed possessed the cocaine purely for personal use, this fact
might lead a reasonable juror to infer that he was more
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likely predisposed than a nonuser to sell cocaine in order to
support his own habit. Moreover, the fact that Reed, the
driver of the car, was in possession of an ounce of cocaine
when arrested tended to suggest that quantity being
arguably more than normal for personal use that he had
intended to distribute it, even though charged only with
possession. Thus even if the 1990 offense and details were
excludable had they been properly objected to (a point we
neither decide nor concede in this opinion), any error in
their admission was far from being so patent as to amount to
clear error. Indeed, as we already noted, the district court
could reasonably have believed that part of the defense's own
strategy lay in trying to establish Reed's lack of
predisposition by emphasizing the unlikelihood that an
individual who was on probation for a prior cocaine offense
would have been predisposed to expose himself to the risk of
further punishment by dealing in cocaine.4
Appellant further argues on appeal that the
district court erred by denying his motion for judgment of
acquittal on the basis of entrapment. In reviewing the
denial of a judgment of acquittal, the standard of review is
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4. We also reject appellant's contention that the district
court should have given a limiting instruction to the jury
regarding the prior conviction evidence. Defense counsel
never requested the court to give such an instruction. The
failure of the trial court to give such an instruction sua
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sponte is not reversible error. United States v. De La Cruz,
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902 F.2d 121, 124 (1st Cir. 1990).
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whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements to have been proven
beyond a reasonable doubt. United States v. Almonte, 952
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F.2d 20, 23 (1st Cir. 1991). The affirmative defense of
entrapment has two related elements: (1) government
inducement of the crime, and (2) a lack of predisposition on
the part of the defendant. United States v. Murphy, 852 F.2d
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1, 5 (1st Cir. 1988), cert. denied, 489 U.S. 1022 (1989).
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Entrapment is a defense of fact for the jury to decide. See
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United States v. Pratt, 913 F.2d 982, 988 (1st Cir. 1990),
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cert. denied, 111 S. Ct. 681 (1991). Once the defendant has
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established that he was induced to commit the crime, see
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Pratt, 913 F.2d at 987-88, the government must prove beyond a
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reasonable doubt that defendant was predisposed to commit the
crime. Jacobson v. United States, 112 S.Ct. 1535, 1540
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(1992).
The jury reasonably could have found that Reed was
not induced by the government to sell cocaine. He readily
agreed to come to the motel to meet a purported cocaine buyer
and he made the transfer of cocaine and accepted the cash
without hesitation. There is no evidence that the government
prodded him to make the second sale. There also was ample
evidence to support a jury finding, beyond a reasonable
doubt, that Reed was predisposed to distribute cocaine.
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Among other things, the record shows that Reed displayed
knowledge about the quality and price of cocaine sold in the
local area. Reed told the BIDE agent that Reed's other
customers were satisfied with his cocaine. We conclude that
the evidence was more than sufficient for the jury to find
that Reed was not entrapped.
Finally, appellant argues that the district court
erred in not incorporating his proposed jury instruction on
entrapment into the instructions delivered by the court.
"The trial court's refusal to give a particular instruction
constitutes reversible error only if the requested
instruction was (1) correct as a matter of substantive law,
(2) not substantially incorporated into the charge as
rendered, and (3) integral to an important point in the
case." United States v. McGill, 953 F.2d 10, 13 (1st Cir.
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1992). In this case, Reed's request was substantially
incorporated into the charge given and we can see no error.
Affirmed.
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