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United States v. Berkery

filed: November 21, 1989.

UNITED STATES OF AMERICA
v.
BERKERY, JOHN, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 82-00011-02).

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge

In this appeal we are faced with the effect of a change in the law of the entrapment defense wrought by the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), which held that a defendant does not have to admit all the elements of a crime in order to receive a jury instruction on entrapment. Because Berkery was required to admit to all elements of the conspiracy in order to receive the entrapment defense charge -- an admission no longer necessary due to the rule in Mathews -- we have determined that a new trial is required in order to ensure a fair and just result. Therefore, we will reverse the order of the district court denying a new trial and remand.*fn1

I.

In 1982 a federal grand jury issued a fifteen count indictment against John Berkery and two other individuals not party to this appeal which charged the following: Count 1, conspiracy to distribute and possess with intent to distribute P2P from October 1980 to 1982; counts 2-10, substantive counts of possession with intent to distribute P2P; counts 12-15, distribution of methamphetamine. Prior to his arraignment, Berkery fled the United States and remained a fugitive until June, 1987.

The evidence at trial included the testimony of a co-conspirator who had become a government informant some time in 1981, as well as testimony from law enforcement agents and tape recorded conversations involving Berkery. Berkery claimed an entrapment defense to count 1, and to count 15, because the date of the alleged activity of count 15 occurred after the co-conspirator became a government informant. In order to receive the entrapment defense charge to the jury, Berkery had to admit to all elements of counts 1 and 15 under the prevailing rule of this court. See United States v. Hill, 655 F.2d 512 (3d Cir. 1981). Berkery was convicted of all counts. After his motion for a new trial was denied, Berkery filed this timely pro se appeal.

In February, 1988, while Berkery's appeal was under consideration, the United States Supreme Court decided Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), which held that "even if the defendant denies one or more elements of the crime, he is entitled to an instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." 108 S. Ct. at 886. The government concedes that the instructions given in this case were contrary to Mathews. Because this case is before us on direct appeal we must apply the new rule enunciated by the Supreme Court. Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649 (1987)("a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). Thus, we review the record in light of Mathews to determine the effect of the entrapment charge.

We must review the allegation of error utilizing the plain error doctrine because the defendant did not make an objection to the required admission of guilt thereby preserving it for appeal. We have long recognized that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b); United States v. Gray, 468 F.2d 257 (3d Cir. 1972). When reviewing a criminal conviction, our concern is not whether guilt can be deduced from the record but rather, we must determine if guilt was found by the jury according to the procedural guidelines appropriate in federal courts. 468 F.2d at 263. In other words, we find plain error if it is the kind of error which affects the "fairness, integrity or public reputation of judicial proceedings" or results in a miscarriage of justice. United States v. Young, 470 U.S. 1, 15, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).

II.

Berkery contends on appeal that the district judge committed plain error in requiring him to admit guilt to a fifteen month conspiracy in order to receive an entrapment defense charge to count 15, an offense which occurred after a co-conspirator had become a government informant.*fn2 Prior to Mathews, the rule in this circuit was that in order to ask for an entrapment charge the defendant had to admit all elements of the offense, including the mens rea. See United States v. Hill, 655 F.2d 512 (3d Cir. 1981) and United States v. El-Gawli, 837 F.2d 142 (3d Cir.), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 34 (1988). The entrapment defense theorizes that an individual not otherwise predisposed to criminal conduct was corrupted by some inducement on the part of the law enforcement officer. Thus, the focus is on the intent or predisposition of the defendant to commit the crime. To be entitled to an entrapment charge, a defendant must produce evidence to show that he was not otherwise predisposed to commit the crime and that the government initiated the crime. United States v. Gambino, 788 F.2d 938 (3d Cir. 1986). The prosecution must prove predisposition to commit the crime beyond a reasonable doubt. Berkery contends that he had withdrawn from the conspiracy because of his suspicions of one co-conspirator.*fn3 It was through the inducements of this co-conspirator, who became a government informant, that Berkery alleges that he engaged in the activities of the charge in count 15. The district court concluded that Berkery was entitled to an entrapment defense charge as to count 15. Defense counsel also requested the same charge for count 1, the conspiracy charge. In order to receive the charge, Berkery had to admit to all elements of the conspiracy offense. The district court instructed the jury that Berkery admitted to the conspiracy charge which the indictment dates from October 1980 to January 13, 1982.

The decision in Mathews eliminated the need for a defendant to choose between denying the offense or relying on an affirmative defense of entrapment. So long as there is sufficient evidence from which a jury could reasonably find entrapment, the defendant is entitled to the instruction. The Mathews Court rejected the government's argument that inconsistent pleading would confuse the jury and noted that inconsistent pleading has been permitted in the civil context for some time. 108 S. Ct. at 887. Thus, under Mathews, Berkery would have been able to receive the entrapment defense instruction without admitting to all the elements of the conspiracy or count 15. Understandably, the district court could not have anticipated the Supreme Court's decision soon to come.

The jury was given the standard conspiracy charge which imputes equal culpability to all co-conspirators regardless of their level of participation when the district court properly charged the jury as to conspiracy as follows:

You can become a member of a conspiracy without knowing all the details of the unlawful scheme or even without knowing the names or identities of all the other alleged conspirators. So that if one joins a conspiracy after it's formed, and even if you're engaged in it to the degree that's more limited or ...


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