United States v. Eckhoff

GLADIS, Judge: Charged with conspiracy, violation of general regulations (three specifications), wrongful use of marijuana (two specifications), wrongful use and possession of cocaine, wrongful distribution of marijuana and cocaine (three specifications), and larceny, in violation of Uniform Code of Military Justice (UCMJ), Articles 81, 92, 112a, and 121, 10 U.S.C. §§ 881, 892, 912a, and 921, the accused pleaded guilty at a general court-martial composed of officer and enlisted members to wrongful use of marijuana (two specifications) and wrongful use of cocaine. He was acquitted of one specification of violation of a general regulation and one specification of wrongful distribution of marijuana, but convicted contrary to his pleas of conspiracy, violation of general orders (two specifications), possession of cocaine, wrongful distribution of marijuana and cocaine (two specifications), and wrongful appropriation. The convening authority approved the adjudged sentence [877] to a bad-conduct discharge, confinement for 30 days, forfeiture of $400.00 per month for 2 months, and reduction to pay grade E-l. Among other things, the accused contends that the military judge committed plain error because he instructed the members that either involvement in unlawful activity or a profit motive defeats the defense of entrapment. We disagree and affirm. Profit Motive The military judge’s instruction on the defense of entrapment included the following language: If you find that the accused entered into an unlawful transaction for the purpose of realizing a profit, he has not been entrapped. For the profit motive, not inducement on the part of the government agents, provides the incentive for commission of the defense [sic]. A profit motive forecloses the defense of entrapment absence [sic] evidence of conduct by the government agents or people cooperating with them which violates fundamental fairness and a shocking [sic] to your universal sense of justice____ He repeated it when the members interrupted their deliberations to seek further clarification. The language is taken from our opinion in United States v. Beltran, 17 M.J. 617 (N.M.C.M.R.1983), pet. denied, 18 M.J. 440 (C.M.A.1984). In that case, citing United States v. Hebert, 1 M.J. 84 (C.M.A.1975), we approved an instruction that a “profit motive will destroy an entrapment defense.” In Hebert, the Court of Military Appeals rejected the contention that the accused’s pleas were improvident because evidence in extenuation raised the defense of entrapment, finding that nothing in this evidence contradicted the ample evidence of criminal predisposition provided by the accused’s responses during the providence inquiry. The Court noted that his profit motive foreclosed the defense of entrapment absent evidence of conduct by the government agents which violated fundamental fairness shocking to the universal sense of justice. After this case was tried, the Army and Air Force Courts of Military Review declined to follow Beltran. In a scholarly analysis of the law of entrapment, the Army Court in United States v. Meyers, 21 M.J. 1007 (A.C.M.R.1986), rejected the view that Hebert is precedent for the rule that an accused’s profit motive, once shown, automatically negates an entrapment defense. Consistent with the subjective test of entrapment which has been adopted by the military, an accused’s need for money is a relevant factor to be considered when determining the element of predisposition.1 Such a factor may or may not show that an accused was predisposed to commit a criminal act, depending on its significance relative to other evidence in the case.2 Id. at 1013-1014. The Air Force Court in United States v. O’Donnell, 22 M.J. 911 (A.F.C.M. R.1986), followed Meyers, agreeing that the presence or absence of a profit motive is one of several factors to be considered in determining an accused’s predisposition to engage in criminal activity. This is in accord with federal decisions cited in O’Donnell, 22 M.J. at 913, which treat profit motive as a key factor, but only one factor to be weighed along with others. The Court of Military Appeals in United States v. Vanzandt, 14 M.J. 332, in providing a virtual restatement of the law of entrapment, not only failed to enunciate a profit motive rule, but cited Hebert as standing for the more limited proposition that the possibility of entrapment is precluded when an accused immediately agrees to a sale of drugs and accepts money therefor without hesitation. O’Donnell, at 913. The rule [878] that one who enters into an unlawful transaction for profit cannot avail himself of the entrapment defense virtually eliminates the defense of entrapment in all cases involving disposition of stolen property, sales of contraband, and other criminal transactions entered into in the expectation of monetary gain. Id. We agree with the Air Force Court that it is beyond comprehension that Hebert, as viewed in the Beltran decision, presaged such a revolutionary refocusing of case law. Charges of such magnitude do not occur in so subtle a fashion, nor do they go unrecognized for so lengthy a period. O’Donnell, at 913. Finding the rationale of Meyers and O’Donnell to be persuasive and the conclusions of those cases, which we have set forth above, to represent the better view, we reject Beltran to the extent that it holds an accused’s profit motive, once shown, automatically negates an entrapment defense. Therefore, we conclude that the military judge’s instruction on profit motive in this case was erroneous. Left for consideration is whether the erroneous instruction was plain error. Counsel did not object at trial. Rule for Courts-Martial 920(f) provides that failure to object to an instruction constitutes waiver of the objection in the absence of plain error. In order to constitute plain error, the error must not only be obvious and substantial, it must also have had an unfair prejudicial impact on the deliberations of members. United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986). The plain error doctrine is invoked to rectify those errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. As a consequence it is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. Id. at 328-329. We find that, although the’profit motive instruction in this case was erroneous, the error does not rise to the level of plain error as defined in Fisher.3 We further find that the defense failure to object at trial was not justified because of reliance on Hebert and Beltran. Counsel are not relieved of the obligation to object at trial to questionable instructions, even though the instructions have long been in use and have been approved by the courts. See United States v. Salley, 9 M.J. 189, 193 (C.M.A.1980). The defense failure to object to the instruction at trial waived the error. Unlawful Activity The accused also complains that the military judge committed plain error because he instructed the members that involvement in unlawful activity defeats the defense of entrapment. The judge instructed that if a person is already involved in unlawful activity which the Government is trying to uncover, the fact that an agent provides opportunities, facilities, or assists in the commission does not amount to entrapment. This language standing alone could have been misleading. Because distribution of drugs is a separate offense with a distinctive criminal intent, the circumstance that an accused has possessed and used a drug does not preclude his advancing an entrapment defense in a prosecution for its distribution. United States v. Bailey, 21 M.J. 244 (C.M.A.1986). But, there is no risk that the members were misled here. The judge instructed them that the fact that the accused may have previously used or possessed marijuana or cocaine did not establish his predisposition to sell or distribute those substances. Therefore, we reject the assignment of error. The remaining assignments of error also lack merit. [879] Accordingly, the findings of guilty and sentence as approved below are affirmed. Judge MIELCZARSKI concurs. Footnotes [1] The subjective test of entrapment involves balancing the accused’s resistance to temptation against the amount of inducement. The focus is on the accused’s latent predisposition to commit the crime, which is triggered by the government inducement. United States v. Vanzandt, 14 M.J. 332, 344 (C.M.A.1982). [2] Cf. United States v. Bailey, 21 M.J. 244, 247-248 (C.M.A.1986) (Cox, J., concurring). [3] In Fisher, the Court of Military Appeals found that an instructional error did not constitute plain error justifying reversal in spite of the lack of timely objection, but reversed because reliance on its past rulings that such an error was plain error may have resulted in the failure to object at trial. The instructional error in Fisher involved omission of a required instruction. The Court of Military Appeals had previously held that failure to give the instruction was plain error.