Entrapment Burdens, 924(c) Carrying-In-Relation-To Sufficiency, and Chain of Custody

United States v. Smith, No. 06-40809 (5th Cir. Mar. 9, 2007) (Davis, Stewart, Godbey)

Smith was convicted of possession of methamphetamine with intent to distribute, and carrying a firearm during and in relation to a drug trafficking crime. He raised several issues on appeal, all of which the court rejected.

Entrapment
Smith attempted to pursue an entrapment defense at trial. In support of that defense, he proffered the testimony of two witnesses who would apparently have described some of the government's investigatory tactics in the case (although the exact nature of the proffered testimony is not clear from the opinion). The district court excluded the testimony on relevancy grounds, and refused Smith's requested jury instruction on entrapment.

The court of appeals found no abuse of discretion on either point, because Smith never made a prima facie showing of entrapment. To properly raise an entrapment defense, the defendant bears the burden of "showing that he lacked the predisposition to commit the crime . . . ." "Once this showing is made, 'the burden shifts to the government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense prior to first being approached by government agents.'" Slip op. at 3 (citation omitted). The proffered testimony went only to the government's conduct, rather than Smith's predisposition, so he wasn't entitled to present the testimony or to have the jury instructed on entrapment.

Sufficiency on the 924(c) Count
Smith's 924(c) convcition for using or carrying a firearm during and in relation to a drug trafficking offense was based on a gun that was underneath the passenger seat of the car Smith was driving at the time of the drug transaction that formed the basis of the PWID count. "Smith [argued] that the weapon must have been both transported in a vehicle and readily accessible in order for 'carry' liability to be sufficiently proven." Slip op. at 4.

The court disagreed, holding that carry liability can be based on either transportation or accessibility during and in relation to the drug crime. It went on to conclude that even if accessibility was required, the gun was at least as accessible as it was in other cases in which the court has sustained carry liability. Finally, the court held that Smith carried the weapon "in relation to" the drug offense because 1) "[t]he gun at issue here obviously could have been used for protection if Smith felt it necessary[,]" and 2) the CI testified that he'd seen Smith carry the gun during other drug transactions, "indicating that Smith regularly carried a firearm for protection." Slip op. at 7.

Chain of Custody
Smith argued that the district court erred by admitting a DEA lab report without first requiring the government to establish the chain of custody (i.e., that the substance tested was the same one seized from his car).

The court found no error in the admission of the evidence. It pointed out that when a defendant challenges the authenticity of the government's evidence, all that the government must do is present prima facie evidence of authenticiy. Once the government does that, it's in the jury's hands. And "[a]ny break in the chain of custody goes to the weight of the evidence, not it's admissibility." Slip op. at 7. Because the government presented enough evidence to make the preliminary showing of authenticity (testimony of officer who seized drugs, officer who took drugs to chemist, and the chemist), the district court did not abuse its discretion in admitting the drugs or the lab report.