*Pursuant 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this opinion should not be published and is not precedent except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. 97-41204

LARRY WAYNE REESE,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(G-96-CV-13)

November 5, 1998

Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges

PER CURIAM:*

Petitioner appeals from the district court’s grant of summary

judgment which resulted in the denial of his petition for habeas

corpus. For the following reasons, we affirm the summary judgment.

I. Background and Procedural History

Larry Wayne Reese (“Petitioner”) was convicted of delivery of

a controlled substance after a jury trial in Texas state court and
 

2The jury found a prior conviction alleged for enhancement of

punishment to be true and assessed punishment of imprisonment for

seventy years and a $10,000 fine.

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sentenced to 70 years imprisonment.2 Reese was arrested in a

police sting operation when a police informant named Dal Bosco and

an undercover police officer purchased drugs from Reese. At the

time, another police officer provided police “back-up,” and

observed the transaction from afar. 

The police informant, Dal Bosco, asserted his Fifth Amendment

privilege and refused to testify at Reese’s trial. The trial judge

upheld Dal Bosco’s right to assert the privilege, and did not

require him to take the witness stand. Because neither Reese nor

Dal Bosco testified at trial, the only evidence of the actual drug

transaction was elicited from the two police officers. The officer

who participated in the transaction testified that he and Dal Bosco

arrived at the scene, Reese showed them a baggie containing drugs,

the officer and Reese then haggled over price, Reese reached into

his pocket and produced a small box containing several other

baggies, and sold one of the baggies to him. Based primarily on

the officer’s testimony, Reese was convicted. 

Reese filed a motion for new trial, primarily asserting that

the trial court had erred in allowing Dal Bosco to assert his Fifth

Amendment privilege. Reese contends that if Dal Bosco had been

compelled to testify, he could have established an entrapment

defense for Reese. At the hearing, Dal Bosco again asserted his

Fifth Amendment privilege, but this time, he did answer certain

questions asked of him. In Dal Bosco’s limited testimony, he
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stated that when Reese was first approached by Dal Bosco and the

undercover police officer, Reese said, “Don’t mess with me.”

However, Dal Bosco also went on to corroborate the officer’s

testimony that (1) he and the officer rode to the area together;

(2) Reese first handed him the drugs and he returned them to Reese;

(3) the officer and Reese haggled over the price of the drugs; and

(4) Reese produced a small box with baggies of cocaine in it. None

of Dal Bosco’s testimony at the new trial hearing contradicted

either of the officer’s trial testimony. Reese’s motion for new

trial was denied, and his conviction was affirmed on direct appeal.

The state court of appeals concluded that any error in sustaining

Dal Bosco’s privilege was harmless, based on the fact that his

testimony at the new trial hearing “was fairly reflective and

cumulative” of the undercover officer’s testimony. The appellate

court also found that no new or different evidence would have

resulted from Dal Bosco had he been compelled to testify at trial.

 The Texas Court of Criminal Appeals granted a petition for

discretionary review and remanded for a determination whether the

error of allowing the informant to assert his Fifth Amendment

privilege was harmless. On remand, the state appellate court again

found that the error was harmless and affirmed the conviction.

Reese subsequently filed a federal petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. The district court accepted

the recommendations of the magistrate and granted summary judgment

for the respondent on the basis that any error committed by the

trial court was, at best, harmless error. After this court granted
 

3Reese has listed four “issues” on appeal, however, two of the

issues are redundant and already covered in his two points of

error. 

4

Reese a certificate of probable cause, see Green v. Johnson, 116

F.3d 1115, 1119-20 (5th Cir. 1997)(required under pre-AEDPA habeas

law), he now petitions this court to reverse the district court’s

summary judgment and grant his writ of habeas corpus. 

II. Discussion

On appeal, Reese brings two points of error against the

district court’s grant of summary judgment.3 We will discuss them

separately.

First, Reese contends that the district court’s ruling that

upheld Dal Bosco’s privilege as harmless error deprived Reese of

his right to secure witnesses on his behalf and his right to

meaningful cross-examination. Reese further contends that had he

been able to develop Dal Bosco’s testimony, he would have been able

to prove the defense of entrapment. 

We have previously held that “[i]n reviewing the grant of

summary judgment in a habeas case, we presume that the state

court’s findings of fact are correct unless there is affirmative

proof that these findings are inadequate.” Teague v. Scott, 60

F.3d 1167, 1169 (5th Cir. 1995). Therefore, we accept the Texas

appellate court’s finding that no new or different evidence would

have been produced had Dal Bosco been compelled to testify at

trial. We will therefore only consider the evidence already

offered by Dal Bosco’s at the hearing on Reese’s motion for new

trial. 
 

4We decline to address respondent’s contention that this

argument initially fails because it does not state a constitutional

issue cognizable on habeas corpus.

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Entrapment is an affirmative defense that requires a defendant

to show: (1) that he was induced to commit a criminal act by a

government agent, and (2) that he was not predisposed to commit the

act without the inducement. See United States v. Pruneda-Gonzalez,

953 F.2d 190, 197 (5th Cir. 1992). While Dal Bosco’s statements

that he heard Reese say, “Don’t mess with me,” could possibly

indicate some hesitation by Reese to sell the drugs, that evidence

goes only to the issue of government inducement. The two officers

that testified at trial, as well as Dal Bosco’s corroborating

testimony at the motion for new trial overwhelmingly establish that

Reese would not be able to overcome the “no predisposition” prong

of the entrapment defense. We therefore agree that as a matter of

law, Reese could not prevail on his entrapment defense, and

therefore any error by the trial court in allowing Dal Bosco to

assert his Fifth Amendment privilege was harmless. Because Dal

Bosco’s limited testimony presented nothing sufficient to support

Reese’s entrapment argument, the district court was correct in

granting summary judgment. 

Reese’s second point of error is that the trial court erred by

failing to instruct the jury on the issue of entrapment. This

argument fails because Reese has failed to produce sufficient

evidence to warrant the submission of entrapment to the jury.4 The

main focus in evaluating an entrapment defense is on the

defendant’s predisposition to commit the offense rather than on the
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conduct of the government agents. See United States v. Mora, 994

F.2d 1129 (5th Cir. 1993). Here, Reese has failed to put on any

evidence, either of government inducement, or of “no

predisposition.” Dal Bosco’s statement that he heard Reese say,

“Don’t mess with me,” is not sufficient to meet Reese’s burden of

making a prima facie showing of entrapment. If it is even “some

evidence” at all, Reese’s statement would only go towards the issue

of government inducement. Therefore, because Reese failed to make

out a prima facie showing on the two elements of the entrapment

defense, it was not error for the trial court to refuse to instruct

the jury on entrapment. See United States v. Thompson, 130 F.3d

676, 688 (5th Cir. 1997). 

III. Conclusion

 For the foregoing reasons, we AFFIRM.

 

 
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