Opinion
Docket No.: CR15001821-00
09-13-2016
COMMONWEALTH OF VIRGINIA v. MASTER RUBIO ALLEN
OPINION AND ORDER SUSTAINING MOTION TO RECONSIDER
The matter comes before the Court on Defendant's Post-Trial Motion to Set Aside and Reconsider. Following a bench trial on February 10, 2016, the Court announced its verdict that Defendant was guilty of Distribution of a Schedule I or II Controlled Substance as an accommodation, a lesser-included felony offense under the indictment that charged Distribution of a Schedule I or II Controlled Substance. Defendant has filed a post-trial motion urging the Court to reconsider and conclude that the defense of entrapment had been proven. Upon consideration of the memoranda filed by both counsel and the supporting legal authorities cited therein, the Court does reconsider its previous decision and finds that Defendant has proven his defense of entrapment. The charge must be dismissed.
Factual Background
On June 5, 2015, undercover Investigator Bailey approached Defendant who was standing on the sidewalk in front of his home. Investigator Bailey asked him if he knew an individual named "Terrell" who supposedly lived nearby. Defendant stated that he knew of Terrell but did not know where he was. The officer then told Defendant that he wanted to buy forty dollars' worth of "hard," street slang for crack cocaine:
A: He then-I then asked Mr. Allen if he knew where I could get $40 worth of hard. Hard is a street term used for crack cocaine. Mr. Allen stated that he's just assisting me and he does not have anything to do with it. I then told Mr. Allen that he was good and would really help me out.Transcript, Excerpt of Proceedings: Testimony of Inv. Bailey, at 3.
The officer testified that Defendant then got into his vehicle and directed him to several locations where he tried without success to procure some cocaine. Eventually, after driving around for approximately 25 to 30 minutes and stopping at multiple locations, Defendant did leave the car and return with a bag of crack cocaine that he handed to the officer.
When asked on cross-examination if he gave Defendant a reason for why he wanted the crack cocaine, Investigator Bailey responded:
THE WITNESS: The reason I told him that my girlfriend uses crack cocaine and I was trying to get it for her because she was scared to go out and get it herself.Tr. at 14-15. After this conversation of two or three minutes, Allen agreed to help and got into the undercover officer's vehicle.
Q. You told him she was scared to go out there?
A. I was scared for her to go out there.
Q. Scared for her?
A. Correct.
Q. Did you tell him the ethnicity of your girlfriend?
A. Yes. I told him a white girl.
Bailey confirmed that Defendant was not a person of interest for any criminal conduct that night:
Q. At no point was he a person of interest; is that correct?Tr. at 22-23.
A. Correct, no. He was just randomly standing out there, I believe in front of his house.
Q. Not doing anything illegal?
A. He was on the phone talking when I first approached him.
The Commonwealth charged Allen with Distribution of a Scheduled I or II Controlled Substance pursuant to Va. Code § 18.2-248(C).
Legal Standard
The defense of entrapment recognizes that "[t]he function of law enforcement is the prevention of crime and the apprehension of criminals . . . . That function does not include the manufacturing of crime." Sherman v. United States, 356 U.S. 369, 372 (1958). Entrapment exists where the evidence shows that law enforcement convinced an otherwise innocent person to commit a crime, as opposed to merely affording a criminal the opportunity to commit a crime he or she would have committed anyway. Id. Mere hesitancy or reluctance to commit the crime does not establish entrapment. McCoy v. Commonwealth, 9 Va. App. 227, 232, 385 S.E.2d 628, 630 (1989). The evidence must show that the defendant was not predisposed to commit the crime and that the persistence of law enforcement overcame the defendant's will. Sherman, 356 U.S. at 373.
Discussion
"Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." Stamper v. Commonwealth, 228 Va. 707, 715 (1985) (quoting Falden v. Commonwealth, 167 Va. 549, 555-56 (1937) and Sorrells v. United States, 287 U.S. 435, 454 (1932)). The Supreme Court of the United States has held that "a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Matthews v. United States, 485 U.S. 58 (1988).
Entrapment defenses typically rise or fall on the determination of whether the defendant was predisposed to commit the crime:
There is nothing improper in the use, by police, of decoys, undercover agents and informers to invite the exposure of willing criminals and to present an opportunity to one willing to commit a crime. . . . Encouragement or solicitation of the commission of a crime by one who is willing and predisposed to commit the crime does not constitute entrapment.McCoy v. Commonwealth, 9 Va. App. 227, 232 (1989) (quoting Schneider v. Comm., 230 Va. 379, 381 (1985)).
The exact definition of predisposition is somewhat unclear. "A predisposed defendant is one who is ready and willing to commit an offense apart from government encouragement, and not an innocent person in whose mind the government implanted a disposition to commit an offense." United States v. Gabriel, 810 F.2d 627, 637 (7th Cir. 1987). One federal court has adopted a five-factor test to evaluate predisposition:
(1)The character or reputation of the defendant; (2) whether the suggestion of the criminal activity was originally made by the government; (3) whether the defendant was engaged in criminal activity for a profit; (4) whether the defendant evidenced reluctance to commit the offense, overcome by government persuasion; and (5) the nature of the inducement or persuasion offered by the government.United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir. 1989).
Virginia courts have considered some of these factors in concluding that defendants were predisposed to commit the charged offense. In McCoy, supra, the Court of Appeals considered the defendant's prior drug use and purchases of cocaine from his friend (the police informant) to be proof of his predisposition. 9 Va. App. at 229. In Bowser v. Commonwealth, No. 0662-13-1, 2014 Va. App. LEXIS 68, at *1 (Va. App. Mar. 4, 2014), the Court of Appeals noted that (i) the defendant initiated the original encounter with the undercover officer; (ii) the defendant had both a reputation and a criminal record for selling drugs; (iii) he asked the undercover officer if she was the police, "indicating that he knew he was about to commit a crime;" and (iv) he had the cocaine on his person and provided it to the officer as soon as she gave him money. Id. at *9.
None of these factors indicate that Mr. Allen was predisposed to sell drugs on the day of his arrest. His character and reputation were unknown to the officer: he did have some drug convictions, but they dated more than twenty years prior to this incident. The officer approached him and not the other way around. He expressed reluctance to help the officer. He had no cocaine on his person and no particular idea of where he would find some for the officer, given the multiple places to which they drove thereafter. The officer provided a sympathetic tale of protecting his girlfriend from the harm that might come to her if she took to the streets in search of her own cocaine. Mr. Allen credibly testified that he believed the officer's story.
The Commonwealth cites Neighbors v. Commonwealth for the proposition that appealing to a defendant's sympathies does not constitute entrapment. 214 Va. 18 (1973). The Neighbors Court did not engage in the analysis of predisposition described above, but it did note that the defendant had previously sold drugs to the police informant who testified against him. Id. at 18-19. That prior history supported a finding that the defendant was predisposed to sell drugs. Id. at 19. A similar prior history is lacking in this case.
Conclusion
The Court reconsiders its previously announced verdict in this matter and concludes that the offense of June 5, 2015 was conceived and planned by the police and not by Defendant, that Defendant's initial reluctance to get involved was overcome by his sympathy for the officer's situation, and that Defendant was not predisposed to commit the offense.
Counsel are directed to put the matter back on the Court's docket for the Court to dismiss this charge.
The Clerk shall provide certified copies of this Order to counsel.
Entered: 13 September 2016
/s/_________
Mary Jane Hall, Judge