1Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 94-60781

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL G. ROBERTS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(3:92CR92WS)

_________________________________________________________________

August 13, 1999

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

PER CURIAM:1

Chiefly at issue in Michael Roberts’ appeal of his drug

trafficking conspiracy conviction is whether the failure to give

entrapment and compensated-witness instructions was plain error.

We AFFIRM.

I.

In 1992, an FBI confidential informant, Chancey, heard from a

third man that Bradfield wanted to engage in drug trafficking. 
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Chancey contacted the FBI, agreeing to set up a transaction and

cooperate, in exchange for a share of the money recovered. After

extensive discussions with Bradfield and several abortive attempts,

Chancey arranged in June 1992 to sell Bradfield four kilograms of

cocaine for $50,000 at a motel/restaurant in Ridgeland,

Mississippi.

Chancey met Bradfield and four others at the restaurant. In

the restroom, Bradfield told Chancey (recorded) that some of the

money was at the restaurant and some elsewhere. Chancey went back

to his motel room; the others left in various vehicles.

At a service station a few miles north of the restaurant, an

FBI Agent observed a Buick stopped beside a pickup belonging to one

of the participants from the restaurant. The pickup drove behind

the station’s convenience store; one of the men in the Buick left

it and entered the pickup. The Buick then left the service

station, heading south toward the motel/restaurant. The driver of

the pickup parked, entered another pickup belonging to a different

participant from the restaurant, and also left. According to the

observing Agents, the people in the vehicles did not purchase

gasoline and appeared to be checking for the presence of police

officers.

Meanwhile, Bradfield visited Chancey’s motel room. Bradfield

referred (videotaped) to “the man downstairs with the money”. The

Buick was parked outside, with Roberts in the front passenger seat.
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Bradfield and Chancey entered the Buick. According to Chancey,

Roberts showed him one sack of money and Bradfield another. 

After Chancey returned to his room, supposedly to obtain the

drugs, Bradfield and Roberts were arrested. Roberts attempted to

escape but was apprehended near the Buick. He had approximately

$1,000 in cash in his pocket; approximately $20,000 and a loaded

gun were on the Buick front-seat passenger-side floorboard in a

plastic bag, the gun sticking out of the bag; and approximately

$29,000 was in a paper bag in the back seat.

The Government paid Chancey $12,500, a quarter of the money

confiscated. (The jury was told of this compensation.)

Roberts, Bradfield, and two others were indicted under 21

U.S.C. § 846 for conspiracy to possess cocaine with intent to

distribute; Roberts was also indicted under 18 U.S.C. § 924(c) for

using or carrying a firearm during a drug offense. A jury

convicted all four defendants in July 1994. Roberts was sentenced,

inter alia, to 14 years in prison.

II.

Disposition of this appeal has been delayed greatly by new

counsel having to be appointed on three occasions and by resolution

of United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc),

discussed in note 2, infra.
 

2Roberts has withdrawn his challenge to his 18 U.S.C. § 924(c)

conviction for using or carrying a weapon during a drug crime, in

the light of United States v. Brown, 161 F.3d 256, 259 (5th Cir.

1998) (en banc) (harmless error in § 924(c) case when jury finding

erroneously-defined “use” necessarily found “carrying”).

All outstanding motions are DENIED.

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Four issues were presented; only three remain.2 None of the

remaining issues was raised in district court.

A.

Roberts contends that the district court should have

instructed the jury on the suspect credibility of a compensated

witness. Because Roberts did not request the instruction, we

review only for plain error, which to even be considered for

reversal must (1) be error, (2) be clear or obvious, and (3) affect

substantial rights; even then, we will reverse only if the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. E.g., United States v. Olano, 507 U.S. 725,

732-36 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc).

United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th

Cir. 1987) (en banc), reversed our court’s previous categorical

exclusion of compensated-witness testimony, but required that “the

trial court should give a careful instruction to the jury pointing

out the suspect credibility of a fact witness who has been

compensated for his testimony”. The Government concedes such an
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instruction should have accompanied Chancey’s testimony, but

maintains that his testimony did not prejudice Roberts.

Roberts relies on United States v. Bradfield, 103 F.3d 1207

(5th Cir.), superseded, 113 F.3d 515 (5th Cir. 1997), which

initially reversed co-defendant Bradfield’s conviction on

Cervantes-Pacheco (including holding that, if need be, trial court

must sua sponte give the instruction, 103 F.3d at 1218) and

entrapment grounds. The revised opinion relies solely on

entrapment. 113 F.3d at 524. Roberts’ brief was filed before the

withdrawal of the first opinion. 

Of course, a superseded opinion is no longer binding.

Moreover, Chancey’s testimony against Roberts was far less

significant than his testimony against Bradfield, or even than his

testimony against co-defendant Williams, see 113 F.3d at 525-26,

for whom neither Bradfield opinion required a Cervantes-Pacheco

warning.

We find no reversible plain error. Chancey’s testimony

regarding Roberts was minimal and only confirmed the testimony of

Agents who observed the transaction. That Chancey testified that

Roberts pointed to the money is insignificant, given that Roberts

was identified by Bradfield as the man with the money, had a large

amount of cash in his pocket, sat in the Buick during a drug

transaction with $20,000 and a loaded gun at his feet, and fled

when law enforcement officers arrived.
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B.

Roberts claims that the district court should have instructed

the jury on entrapment, urging our court to adopt a “derivative

entrapment” theory. Again, because Roberts did not request the

instruction, we review only for plain error.

Roberts asserts that the district court’s discussion of the

issue rendered any request futile. However, the district court

invited such an objection, indicating that it would consider it if

raised:

Well, I need not pass on whether there could

be a derivative argument right now, because I

have not heard an argument for it. To this

point, only one defendant has urged the

defense of entrapment, and that was

[Bradfield]. The other three defendants have

not said anything at all concerning

entrapment. And since they have not even

sought to raise it, then I need not pass on

whether they can argue entrapment on some

derivative theory. At this juncture,

entrapment is simply not before the Court as

based on any evidence or facts presented by

any other defendants.

We find no plain error. Whatever the “plethora of evidence of

government inducement” of Bradfield, Bradfield, 113 F.3d at 523,

Roberts presented no evidence (and the Government offered none)

regarding how Roberts became involved in the scheme. Such a prima

facie case is essential to an entrapment defense. 

“Entrapment is an affirmative defense that requires a

defendant to show he was induced to commit a criminal act by a
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government agent and that he was not predisposed to commit the act

without the inducement.” United States v. Pruneda-Gonzalez, 953

F.2d 190, 197 (5th Cir. 1992). While cases such as United States

v. Anderton, 629 F.2d 1044 (5th Cir. 1980), and United States v.

Hollingsworth, 27 F.3d 1196 (7th Cir. 1994) (en banc), regard

government use of intermediaries to induce crime as entrapment,

there is simply no evidence that Bradfield induced Roberts to be

involved, let alone in a way attributable to the Government. See

Anderton, 629 F.2d at 1048 n.3 (to be entrapment, intermediary

“must induce the crime”); Hollingsworth, 27 F.3d at 1204

(entrapment “when a private individual, himself entrapped, acts as

agent or conduit for governmental efforts at entrapment”, but not

when “the first person whom the government entraps expands,

embroiders, or elaborates the scheme proposed to him by the

government”). 

C.

Roberts charges ineffective assistance of trial counsel.

However, “[w]e do not review a claim of ineffective assistance of

counsel on direct appeal unless the district court has first

addressed it or unless the record is sufficiently developed to

allow us to evaluate the claim on its merits”. United States v.

Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (emphasis

added). Neither basis applies. Therefore, we do not decide this
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claim. Of course, Roberts may still raise it under 28 U.S.C. §

2255.

III.

For the foregoing reasons, the judgment is

AFFIRMED.