*

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

July 27, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CLARENCE EUGENE VINCENT,

Defendant - Appellant.

No. 09-4193

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 2:08-CR-00252-TS-1)

Submitted on the briefs:*

J. Edward Jones, Heber City, Utah, for Appellant.

Carlie Christensen, Acting United States Attorney, and Diana Hagen, Assistant

United States Attorney, Office of the United States Attorney for the District of

Utah, Salt Lake City, Utah, for Appellee.

Before TACHA, EBEL, and HARTZ, Circuit Judges.

TACHA, Circuit Judge.
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Clarence Eugene Vincent was found guilty by a jury of two counts of

knowingly distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). 

On appeal, Mr. Vincent argues that the district court erred by refusing to instruct

the jury on the defense of entrapment. He also contends that the district court

improperly denied his motion requesting disclosure of the government’s

confidential informant (“CI”). We take jurisdiction pursuant to 28 U.S.C. § 1291

and AFFIRM.

I. BACKGROUND

In late 2007, the Federal Bureau of Investigation (“FBI”) began

investigating Matt Izenberg, a purported white supremacist leader and

methamphetamine trafficker who was a suspect in two homicides. Special Agent

Greg Rogers, the lead investigator, sought to purchase methamphetamine from

Mr. Izenberg in order to establish a criminal case against him. He was able to

arrange a meeting with Mr. Izenberg with the help of a CI. 

On January 10, 2008, Agent Rogers, acting under cover, and an individual

named Ryan Arthur met with Mr. Izenberg to purchase drugs. The meeting did

not go well and ended with Agent Rogers ordering Mr. Izenberg out of his truck. 

After the failed drug purchase, Agent Rogers determined that he could more

effectively infiltrate Mr. Izenberg’s methamphetamine business by recruiting 

additional confidential sources. The CI suggested that Mr. Vincent could be such
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a confidential source because of his connections with Mr. Izenberg. Furthermore,

the CI believed he could get Mr. Vincent to sell drugs to Agent Rogers, who

could, in turn, use that criminal act to persuade Mr. Vincent to cooperate in his

investigation. This strategy of using the threat of prosecution to get a person to

cooperate as an informant is commonly employed by the FBI. 

Several days before Agent Rogers’s failed drug purchase from Mr.

Izenberg, Mr. Vincent was contacted by his good friend Mr. Arthur. Mr. Arthur

indicated he was looking to be introduced to Mr. Izenberg, and Mr. Vincent was

able to arrange a meeting between the two. On January 10 (the date of Agent

Rogers’s failed drug purchase), Mr. Arthur contacted Mr. Vincent and explained

that he had arranged an unsuccessful drug deal between Mr. Izenberg and a buyer,

and that Mr. Izenberg had damaged his reputation with the buyer. At this time,

however, he did not ask Mr. Vincent to find him any methamphetamine. Instead,

he suggested that Mr. Vincent and his girlfriend join him on a trip to Mesquite,

Nevada and he offered to pay for transportation, food, lodging, and gambling. 

After roughly a week in Mesquite, Mr. Arthur drove Mr. Vincent and his

girlfriend back to their home in Salt Lake City, Utah. During the return trip, Mr.

Arthur again mentioned the failed drug deal. This time, however, Mr. Arthur

asked Mr. Vincent if he would do him a favor. He explained that Agent Rogers

was his friend’s brother and how Mr. Izenberg had damaged his reputation with

Agent Rogers. He then asked Mr. Vincent if he would get him some
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methamphetamine in order to repair his reputation. Mr. Vincent agreed. 

Mr. Vincent ultimately sold Agent Rogers methamphetamine on two

occasions. On February 13, 2008, Agent Rogers met Mr. Vincent in the parking

lot of a Kentucky Fried Chicken and purchased 11.9 grams of methamphetamine. 

Then, on March 5, 2008, Mr. Vincent sold Agent Rogers 20.4 grams of

methamphetamine in a night club parking lot. 

On April 15, 2008, FBI agents visited Mr. Vincent’s home and spoke with

him about his drug dealing activities. Mr. Vincent admitted that he sold drugs to

an individual named Greg Rogers, but denied any other sales. Agent Rogers then

entered the home, identified himself as an FBI agent, and asked for Mr. Vincent’s

assistance. Mr. Vincent agreed to help in the investigation of Mr. Izenberg, but

was arrested after he began revealing Agent Rogers’s identity as an undercover

agent. Mr. Vincent was subsequently charged with two counts of distributing

methamphetamine. 

Before trial, Mr. Vincent filed motions seeking disclosure of the identities

of the government’s CI and requesting a jury instruction on the defense of

entrapment. The district court denied both motions. Mr. Vincent then renewed

his motions at trial and the court again denied both. The jury ultimately returned

guilty verdicts on both counts, and Mr. Vincent was sentenced to 120 months’

imprisonment to be followed by 96 months of supervised release. Mr. Vincent

now appeals, contending that the district court erred in denying his motions.
**Additionally, the district court found conflicting evidence regarding the

predisposition element, but refused to rule on whether Mr. Vincent met his burden

with regard to that element. We do not address this aspect of the district court’s

decision. 

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II. DISCUSSION

A. Entrapment Instruction

To raise a valid entrapment defense, a defendant must show two 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, 63 (1988). In the district court, Mr. Vincent argued that the government

induced him to engage in drug trafficking by exploiting his friendship with Mr.

Arthur, who he believes to have been the CI. The district court ruled that even

assuming Mr. Arthur was the CI, Mr. Vincent failed to raise a “genuine factual

dispute regarding the element of inducement.”** Accordingly, the district court

refused to instruct the jury on entrapment. On appeal, Mr. Vincent argues that he

produced sufficient evidence of government inducement to warrant an entrapment

instruction. “[W]hether there is evidence sufficient to constitute a triable issue of

entrapment is a question of law” which we review de novo. United States v.

Ortiz, 804 F.2d 1161, 1164 (10th Cir. 1986).

“Inducement is government conduct which creates a substantial risk that an

undisposed person or otherwise law-abiding citizen would commit the offense.” 

United States v. Scull, 321 F.3d 1270, 1275 (2003) (quotations omitted). 
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“Governmental inducement may take the form of persuasion, fraudulent

representations, threats, coercive tactics, harassment, promises of reward, or pleas

based on need, sympathy or friendship.” Ortiz, 804 F.2d at 1165. Evidence that

the government initiated the contact with the defendant, proposed the crime, or

solicited or requested the defendant to engage in criminal conduct, standing alone,

is insufficient to constitute inducement. Id.

“The question of entrapment is generally one for the jury, rather than for

the court.” Matthews, 485 U.S. at 63. This general rule, however, is not absolute. 

Indeed, a defendant is only entitled to an entrapment jury instruction when he has

produced “‘sufficient evidence from which a reasonable jury could find

entrapment.’” Scull, 321 F.3d at 1275 (quoting Matthews, 485 U.S. at 62). “For

the purposes of determining the sufficiency of the evidence to raise the jury issue,

the testimony most favorable to the defendant should be accepted.” Id.

(quotations omitted). 

Here, the evidence taken in the light most favorable to Mr. Vincent is as

follows. Agent Rogers and alleged-CI Mr. Arthur devised a plan to entice Mr.

Vincent to sell drugs to Agent Rogers in order to convert him into an asset in

their investigation of Mr. Izenberg. After Agent Rogers burned his only bridge to

Mr. Izenberg, Mr. Arthur complained to Mr. Vincent that Mr. Izenberg had

damaged his (Mr. Arthur’s) reputation with his friend’s brother. That same

evening, Mr. Arthur treated Mr. Vincent and his girlfriend to an all-expenses-
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paid, week-long vacation to Mesquite, Nevada. On the way home from Nevada,

Mr. Arthur again complained of personal embarrassment caused by Mr. Izenberg

and asked Mr. Vincent to help him save face by selling drugs to “Greg” (Agent

Rogers). Mr. Arthur also suggested there would be remuneration, with full

knowledge that Mr. Vincent was unemployed, falling behind on his bills, had his

car repossessed for lack of payments, and was being evicted for not paying rent. 

Ultimately, Mr. Vincent sold drugs to Agent Rogers, but only because of his

sense of obligation after being treated to the free vacation and because “Arthur

was a good friend of mine and he asked me to do him a favor.”

Assuming, as the district court did, that Mr. Arthur was a government

agent, his conduct can be fairly characterized as persuasion, fraudulent

misrepresentations, coercive tactics, promises of reward, or a plea based on

friendship. Although we have consistently used these terms to define the type of

government inducement that may form the basis of an entrapment defense, we

have never held that when law enforcement employs any degree of persuasion,

any use of coercive tactics, any promise of reward, or any plea based on

friendship the defendant is entitled to an entrapment jury instruction. Indeed, it

has long been recognized that government infiltration of drug enterprises, often

through the use of confidential informants who ingratiate themselves to drug

dealers by using deceit and offering things of value, is vital to law enforcement’s

ability to thwart or at least disrupt drug trafficking. See United States v. Russell,
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411 U.S. 423, 432 (1973) (recognizing that the infiltration of drug rings is “a

recognized and permissible means of investigation,” that “an agent will not be

taken into the confidence of the illegal entrepreneurs unless he has something of

value to offer them,” and that “there are circumstances when the use of deceit is

the only practicable law enforcement technique available”). 

For this reason, we have long held that a defendant is entitled to a jury

instruction on entrapment only when the government conduct is such that a

reasonable jury could find that it “creates a substantial risk that an undisposed

person or otherwise law-abiding citizen would commit the offense.” Scull, 321

F.3d at 1275. While Mr. Vincent may well have felt indebted to Mr. Arthur

following the trip to Mesquite and may have felt obligated to assist his friend in

restoring his reputation, a reasonable jury could not conclude that Mr. Arthur’s

benevolence and invocations of sympathy created a substantial risk that an

otherwise law-abiding citizen would take up the methamphetamine trade. 

Accordingly, the district court correctly refused to instruct the jury on

entrapment.

B. Disclosure of Confidential Informant

Mr. Vincent also alleges that the district court erred when it denied his

motion to disclose the identity of the government’s CI. Mr. Vincent maintains

that without the disclosure of the CI’s identity, his defense of entrapment was

undermined. We review the denial of a defendant’s motion for disclosure of an
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informant’s identity for abuse of discretion. United States v. Martinez, 979 F.2d

1424, 1426 (10th Cir. 1992); United States v. Moralez, 908 F.2d 565, 567 (10th

Cir. 1990). But see United States v. Mendoza-Salgado, 964 F.2d 993, 1001 (10th

Cir. 1992) (applying de novo standard of review).

“Due to the strong public interest in furthering effective law enforcement,

the government enjoys a privilege to withhold from disclosure the identity of

persons who furnish law enforcement officers with information on criminal acts.” 

Mendoza-Salgado, 964 F.2d at 1000. The privilege must give way, however,

when “the disclosure of an informer’s identity . . . is relevant and helpful to the

defense of an accused, or is essential to a fair determination of a cause.” Roviaro

v. United States, 353 U.S. 53, 60–61 (1957). “The need for disclosure depends on

the particular circumstances of each case, taking into consideration the crime

charged, the possible defenses, the possible significance of the informer’s

testimony, and other relevant factors.” Mendoza-Salgado, 964 F.2d at 1000

(quotations omitted). Therefore, we balance “the public interest in protecting the

flow of information against the individual’s right to prepare his defense.” 

Roviaro, 353 U.S. at 62. The defendant has the “burden of demonstrating a need

for disclosure.” Martinez, 979 F.2d at 1426.

Here, the district court did not abuse its discretion in refusing to order

disclosure. Because Mr. Vincent is convinced he already knows the identity of

the CI, the only possible benefit to Mr. Vincent’s defense is a formal recognition
-10-

that Mr. Arthur was a government agent whose actions can form the basis of an

entrapment defense. As we hold above, however, the district court correctly

concluded that even assuming Mr. Arthur was the CI, Mr. Vincent did not

adequately raise an entrapment defense. And, because the jury was not instructed

regarding entrapment, disclosure was of no benefit to Mr. Vincent. See United

States v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984) (“[U]ntil the [entrapment]

defense is properly raised, a court need not order the government to disclose the

identity of the informant.”); United States v. Sharp, 778 F.2d 1182, 1187 (6th Cir.

1985) (“Where the defendant claims entrapment, he must adduce some evidence

of entrapment before the government is called upon to disclose . . . [the] identity

of an informant.”). Therefore, the district court did not abuse its discretion in

denying Mr. Vincent’s motion for disclosure. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court judgment and Mr.

Vincent’s convictions.