On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal No. 89-00125-01.
Sloviter, Scirica and Alito, Circuit Judges.
Lawrence Wright appeals from a judgment of conviction and sentence for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and five counts of using a telephone to facilitate the narcotics conspiracy, in violation of 21 U.S.C. § 843(b). Wright raises two issues; he complains (1) that the district court improperly denied his request for a jury charge of entrapment, and (2) that the court committed plain error in its instructions with regard to how the jury should evaluate the testimony of a confidential informant.
Background Facts and Procedural History
The basis of Wright's entrapment claim centers on the activity of the government informant, Everton Davis. Davis, who was indicted by a federal grand jury in Florida for obtaining firearms illegally, a violation of Davis' state probation requirement, entered into a plea agreement with the federal government, which included Davis' undertaking to cooperate with the government. The government sought to ascertain with whom Davis had had "business dealings" and "what kind of transactions [Davis] was making . . . in Philadelphia." App. at 144.
Pursuant to his obligation to cooperate, Davis placed a series of phone calls from Florida to Wright in Philadelphia. Davis and Wright had previously been involved in transactions involving marijuana. An agent from the Division of Alcohol, Tobacco, and Firearms (ATF) in Florida was with Davis during each phone call and each was recorded by the Bureau. In the first such recorded call, made February 5, 1989, Davis told Wright that he was coming up to Philadelphia the next week, and stated "me try for, take care of some things" and "me don't want to come up empty handed," App. at 510, which Davis testified meant that he did not want to go to Philadelphia without some drugs. App. at 153. Wright replied that Davis should "bring some business along" with him. App. at 510. Davis asked Wright "what da ya think we should bring," and Wright responded "the powder business," App. at 511, which Davis testified referred to cocaine, App. at 121. Davis asked Wright to call someone from West Palm Beach from whom he could get a better price on cocaine. Wright told Davis, "give me the number," App. at 514 [Davis' number for a return call, App. at 167], and when Davis was not able to, Wright told Davis "call me back about six." Id.
In the series of phone calls which followed, Davis always called Wright, and an ATF agent was always present. After preliminary arrangements were made for a cocaine deal, Davis travelled from Florida to Philadelphia accompanied by agents from the ATF. Davis called Wright from North Carolina, told him he was bringing "6 of them," App. at 532, which Davis explained at trial meant six kilos of cocaine. App. at 133-34. Wright responded, "yeah I went and talked to some people ya know . . . and were interested ya know." App. at 532.
When Davis arrived in Philadelphia, the agents coordinated their activities with the Philadelphia Police Department. After Davis obtained a hotel room in Philadelphia, he gave Wright his phone number and Wright called Davis to make the final arrangements for the purchase of the cocaine Davis was to supply. The transaction resulted in Wright's arrest and the subsequent indictment.
At the conclusion of the introduction of all the evidence, Wright requested that the jury be charged on an entrapment defense. The district court refused on the ground that there was no "showing of a lack of predisposition" on the part of Wright. App. at 362. In a memorandum in response to Wright's post-trial motions, the district court reviewed the evidence which Wright argued supported an entrapment defense and concluded that all the evidence pertained to "inducement" by the government, and that there ...