* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is ordered

submitted without oral argument.

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 9/25/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-3409

 

GERALD T. CECIL,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 95-CR-10038)

Jackie N. Williams, United States Attorney, Stephen K. Lester, Assistant United States

Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Laura B. Shaneyfelt, Focht, Hughey & Calvert, L.L.C., Wichita, Kansas, for

Defendant-Appellant.

Before TACHA, BALDOCK, and BRORBY, Circuit Judges.*

BALDOCK, Circuit Judge.
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 Defendant Gerald T. Cecil sold a kilogram of cocaine to a confidential informant

working for the government. The government indicted Defendant for distributing a

kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At trial,

Defendant argued that he was entrapped. The district court instructed the jury on the

defense of entrapment and the jury convicted Defendant. On appeal from his conviction,

Defendant claims the district court erroneously refused to instruct the jury that the

government had to prove that Defendant was predisposed to sell cocaine at the time he

was contacted by the confidential informant. Defendant also asserts the district court, in

response to a question from the jury, misinformed the jury that the government had to

prove that Defendant was predisposed to distribute cocaine, but did not have to prove that

Defendant was predisposed to distribute a kilogram of cocaine. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

I.

At trial, the district court delivered the following lengthy instruction to the jury

regarding the entrapment defense:

Defendant Cecil asserts that he was the victim of entrapment as to

the offense charged in the indictment.

Where a person has no previous intent or purpose to violate the law,

but is induced or persuaded by law enforcement officers or their agents to

commit a crime, he is the victim of entrapment, and the law as a matter of

policy forbids his conviction in such a case.

On the other hand, where a person already has the readiness and

willingness to break the law, the mere fact that government agents provide
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what appears to be a favorable opportunity is not entrapment. For example,

it is not entrapment for a government agent to pretend to be someone else

and to offer, either directly or through an informer or other decoy, to engage

in an unlawful transaction.

If, then, you should find beyond a reasonable doubt from the

evidence in the case that, before anything at all occurred respecting the

alleged offense involved in this case, the defendant was predisposed to

commit a crime such as charged here, whenever the opportunity was

afforded, and that government officers or their agents did no more than

offer the opportunity, then you should find defendant Cecil was not the

victim of entrapment.

On the other hand, if the evidence should leave you with a

reasonable doubt whether defendant had the predisposition to commit an

offense of the character charged, apart from the inducement or persuasion

of some officer or agent of the government, then it is your duty to find

defendant Cecil not guilty.

Evidence of predisposition may consist of a showing of a person’s

desire for profit, his eagerness to participate in the transaction, and/or his

ready response, if any, to the government’s inducement offers.

Thus, if you find from the evidence that defendant Cecil was induced

to commit the crime addressed in the indictment, and at the time was not

predisposed to otherwise commit the crime, you must acquit the defendant.

The United States denies defendant Cecil’s contentions of fact, and

claims that his involvement was as set forth in the indictment.

The burden is on the government to prove beyond a reasonable doubt

that the defendant was not entrapped.

Vol. I., Doc. 61, Instruction No. 15 (emphasis added). During deliberations, the jury

submitted the following written question to the court:

Question on Instruction No. 15 “predisposition to commit an offense of the

character charged” Does the above wording mean the predisposition to

commit an offense of a “kilo” buy?
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Vol. III, No. 2. Defendant asked the district court to give this instruction in response to

the jury’s question:

In response to your question whether the government must prove that the

defendant Cecil was predisposed to distribute a kilogram of cocaine, the

court instructs you that “predisposition” is defined as a defendant’s

inclination to engage in the illegal activity for which he has been charged,

i.e. that he is ready and willing to commit the crime. It focuses on

defendant’s state of mind before government agents suggest that he commit

a crime. Predisposition may be inferred from a defendant’s history of

involvement in the type of criminal activity for which he has been charged,

combined with his ready response to the inducement offer. The government

has the burden of proof to prove beyond a reasonable doubt that the

defendant lacked predisposition to commit the crime charged at the time

that the government agent (Jeff Schoenthaler) began his efforts to engage

the defendant in criminal conduct.

Vol I, Doc. 58. After argument from counsel, the court rejected Defendant’s suggested

instruction and sent the following answer to the jury: “No.” The jury convicted

Defendant.

II.

On appeal from his conviction, Defendant argues the district court erroneously

instructed the jury and misstated the law when it answered the jury’s question. 

Specifically, Defendant contends that the district court erred by: (1) “refusing to instruct

the jury that the government must prove the defendant was predisposed to sell cocaine at

the time that the informant began contacting the defendant;” (2) refusing to deliver his

suggested instruction to the jury; and (3) responding “No” to the jury’s question whether

the government had to prove that Defendant was predisposed to distribute a kilogram of
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cocaine. We address Defendant’s arguments in turn.

A.

Defendant first asserts that the district court erred by refusing to instruct the jury

that the government’s burden required it to prove that Defendant was predisposed to sell

cocaine when the confidential informant first contacted him. Defendant argues that

Instruction No. 15 was deficient as a matter of law because it “did not address, in any

meaningful manner, the important issue of timing of predisposition.” Aplt. Br. at 11. 

According to Defendant, “not one reference in the instruction informs the jury that the

predisposition must have been in place at the time the informant first began contacting the

defendant.” Id. Consequently, Defendant urges us to reverse his conviction and remand

for a new trial.

We review jury instructions de novo to determine whether, as a whole, the

instructions correctly state the governing law and provide the jury with an ample

understanding of the issues and applicable standards. E.g., United States v. de

Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991). The instructions must cover the

issues presented by the evidence and accurately state the law. United States v. Davis, 953

F.2d 1482, 1492 (10th Cir.), cert. denied, 504 U.S. 945 (1992). We will reverse only

when the failure to give an instruction is prejudicial in view of the entire record. United

States v. Martin, 18 F.3d 1515, 1519 (10th Cir.), cert. denied, 115 S. Ct. 187 (1994). 

The Supreme Court has distilled the principles governing the defense of
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entrapment in the following passage:

[T]here can be no dispute that the Government may use undercover

agents to enforce the law. It is well settled that the fact that officers or

employees of the Government merely afford opportunities or facilities for

the commission of the offense does not defeat the prosecution. Artifice and

stratagem may be employed to catch those engaged in criminal enterprises.

In their zeal to enforce the law, however, Government agents may

not originate a criminal design, implant in an innocent person’s mind the

disposition to commit a criminal act, and then induce commission of the

crime so that the Government may prosecute. Where the Government has

induced an individual to break the law and the defense of entrapment is at

issue . . . the prosecution must prove beyond a reasonable doubt that the

defendant was disposed to commit the criminal act prior to first being

approached by Government agents.

 Jacobson v. United States, 503 U.S. 540, 548-49 (1992) (quotations and citations

omitted) (emphasis added); see also United States v. Beal, 961 F.2d 1512, 1515-16 (10th

Cir. 1992); United States v. Ortiz, 804 F.2d 1161, 1164-65 (10th Cir. 1986). 

Viewing Instruction No. 15 against this authoritative statement of the entrapment

defense, we conclude the challenged instruction neither misstated the law nor failed to

provide the jury with an ample understanding of the applicable standards. Instruction No.

15 did not, as Defendant urges, fail to “address, in any meaningful manner, the important

issue of timing of predisposition.” Aplt. Br. at 11. Instruction No. 15 cohered with the

Supreme Court’s statement that it is the prosecution’s burden to “prove beyond

reasonable doubt that the defendant was disposed to commit the criminal act prior to first

being approached by Government agents.” Jacobson, 503 U.S. at 549. That is,

Instruction No. 15 informed the jury at least three separate times of the importance of the
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timing of the predisposition: “[w]here a person has no previous intent or purpose to

violate the law . . . he is a victim of entrapment,” and “[i]f , then, you should find beyond

a reasonable doubt from the evidence in the case that, before anything at all occurred

respecting the alleged offense involved in this case, the defendant was predisposed to

commit a crime such as charged here . . . then you should find defendant Cecil was not

the victim of entrapment,” and finally, “where a person already has the readiness and

willingness to break the law, the mere fact that government agents provide what appears

to be a favorable opportunity is not entrapment.” Vol. I., Doc. 61, Instruction No. 15

(emphasis added). Consequently, we reject Defendant’s argument that Instruction No. 15

was fatally deficient because it did not inform the jury that the government had the burden

of proving that defendant was predisposed to sell cocaine when the confidential informant

first contacted him.

B.

Next, Defendant argues that the district court erred in refusing to deliver his

suggested instruction to the jury. Defendant contends that the district court should have

tendered his instruction to the jury to “fully inform the jury” about the timing of

predisposition. Aplt. Br. at 11. We reject Defendant’s argument that the district court

erred in refusing to tender his instruction to the jury because Defendant’s instruction

misstates the law. 

Defendant’s instruction provided: 
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The government has the burden of proof to prove beyond a reasonable

doubt that the defendant lacked predisposition to commit the crime charged

at the time that the government agent (Jeff Schoenthaler) began his efforts

to engage the defendant in criminal conduct.

Vol. I., Doc 58 (emphasis added). Contrary to Defendant’s suggested instruction, the

government does not carry the burden of proving that the defendant “lacked predisposition”

to commit the crime. Instead, Jacobson instructs that “the prosecution must prove beyond

a reasonable doubt that the defendant was disposed to commit the criminal act prior to first

being approached by Government agents.” Jacobson, 503 U.S. at 549 (emphasis added).

Thus, the government’s evidentiary burden requires it to prove that the defendant was

“disposed to commit the crime” not that the defendant “lacked predisposition to commit the

crime.” Id. Absence of predisposition to commit the crime is the defendant’s evidentiary

burden, not the government’s. E.g., Ortiz, 804 F.2d at 1165 (“The defendant must point to

evidence of both lack of predisposition and government inducement before the trial judge can

determine whether entrapment has been shown sufficiently to present it to the jury.”)

(emphasis added). Defendant’s suggested jury instruction is wrong because it contravenes

the clear mandate of Jacobson and places Defendant’s burden to raise the entrapment defense

on the government.

C.

Finally, Defendant contends that the district court misstated the law when it answered

the jury’s question regarding predisposition. Specifically, Defendant argues the district court

erred when it responded “No” to the jury’s question whether the government was required
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to prove that Defendant was predisposed to distribute a kilogram of cocaine. Because he was

charged with distributing a kilogram of cocaine, Defendant maintains that the government

“had the burden of proving that the defendant was predisposed, at the time the informant first

contacted him on behalf of the police, to sell a kilogram of cocaine.” Aplt. Br. at 12. We

disagree.

When the defense of entrapment is at issue, “the prosecution must prove beyond

reasonable doubt that the defendant was disposed to commit the criminal act prior to first

being approached by Government agents.” Jacobson, 503 U.S. at 549 (emphasis added); see

also Beal, 961 F.2d at 1516. Thus, Defendant’s argument requires us to determine what

criminal act the government had to prove beyond a reasonable doubt Defendant was

predisposed to commit. 

Defendant was indicted (and convicted) of violating 21 U.S.C. § 841(a)(1). The drug

trafficking provision of § 841 contains two distinct parts: § 841(a) and § 841(b). Subsection

(a), entitled “Unlawful acts,” defines the criminal act, and prohibits trafficking in “a

controlled substance” without reference to quantity. Subsection (b), entitled “Penalties,”

specifies the punishment for various drug quantities and “does not itself state a criminal

offense.” United States v. Puryear, 940 F.2d 602, 604 (10th Cir. 1991). Because § 841(a)

does not refer to quantity, settled precedent recognizes that the quantity of the drug is not an

element of the offense under § 841(a). United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.

1989) (“[T]he quantity of the substance in the possession of the defendant . . .is not an
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element of the substantive offense upon which the [§ 841(a)] charge is based.”); United

States v. Estell, 539 F.2d 697, 699 (10th Cir.) (“It is well settled that the presence and

identity of the drug is the thing and that the quantity of it is not important.”), cert. denied, 429

U.S. 982 (1976).

In contrast, § 841(b) vests the quantity determination in the sentencing court. Puryear,

940 F.2d at 604; Jenkins, 866 F.2d at 334. “Congress clearly intended § 841(b)(1)(B) to be

a sentencing provision independent of the substantive charge to which it applies.” Jenkins,

866 F.2d at 334. Thus, a jury is not required to make a quantity finding to find a defendant

guilty of violating 21 U.S.C. § 841(a)(1). Id.

These principles demonstrate that although the government was required to prove that

Defendant was predisposed to distribute cocaine prior to first being contacted by the

confidential informant, it was not required to prove that Defendant was predisposed to

distribute a kilogram of cocaine. Although the indictment refers to one kilogram of cocaine,

the quantity of cocaine is not an element of the criminal act under § 841(a)(1). Instead, the

quantity of cocaine is legally relevant for the sentencing court under § 841(b). E.g., Jenkins,

866 F.2d at 334 (recognizing that § 841(a) does not require the jury to make a quantity

determination to return a verdict of guilty and thus a defendant is not entitled to a quantity

finding beyond a reasonable doubt). Defendant’s entrapment defense required the jury to

determine whether the government had established beyond a reasonable doubt that Defendant

was predisposed to knowingly, intentionally and unlawfully distribute cocaine in violation
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of 21 U.S.C. § 841(a)(1). Consequently, we hold the district court did not err when it

informed the jury that “predisposition to commit an offense of the character charged” did not

require the government to prove, as the jury inquired, “predisposition to commit an offense

of a ‘kilo’ buy.” 

AFFIRMED.