UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KENNETH GREENWOOD, Defendant - Appellant. No. 14-1047 (D.C. No. 1:12-CR-00504-RBJ-1) (D. Colo.)

ORDER AND JUDGMENT *

Before HOLMES , BACHARACH , and McHUGH , Circuit Judges.
A jury found Kenneth Greenwood guilty of two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and two counts of possession of less than twenty-eight gr ams of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 851. But the jury acquitted him of a third iden tical drug count. He moved for a judgment of acquittal on the two drug counts, relying on his trial defense of entrapment. The

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 11, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - district court denied the motion. We a ffirm the court’s denial of the motion for acquittal.
BACKGROUND In August of 2012, a former convict ed felon and Bloods gang member was arrested on habitual traffic offender charges. Because he did not want to be incarcerated, he contacted the Bureau of Alcohol, Tobacco and Firearms (ATF) and the Denver Police Department (DPD) and en tered into an agre ement to act as a confidential informant (CI). Under the agreement, his traffic charges would be dropped, a pending drug case would be dism issed, and he would be compensated in exchange for his assistan ce in controlled purchases of guns and drugs. The CI informed the ATF and DPD that he could buy guns and drugs from his friend Mr. Greenwood, another Bloods gang member. Over the course of two months, the CI set up two deals with Mr. Greenwood to buy guns and three deals to buy drugs. 1 The first drug purchase occurred on September 13, 2012. The CI met Mr. Greenwood at the location Mr. Greenwo od directed and purchased one ounce of cocaine for $1,200. This transaction occurre d inside a vehicle. On September 14 and 18, the CI obtained guns from Mr. Greenwo od. The second drug purchase occurred on September 24, six days afte r the last gun deal and eleven days after the first drug

1 Mr. Greenwood does not challenge his gun convictions, so we assume he was properly convicted of them.- 3 - purchase. The CI and Mr. Greenwood me t in the alley behind Mr. Greenwood’s convenience store. The CI gave Mr. Gree nwood $900 for 3⁄4 of an ounce of crack
cocaine. Mr. Greenwood then went to his home to obtai n an additional 1⁄4 ounce. After returning, he sold the re st of the drugs to the CI fo r $300 and asked the CI if he needed anything else, indicati ng with gang slang that he ha d drugs for sale. The third drug deal occurred on November 2 in Mr. Greenwood’s convenience store. The CI purchased an ounce of crack cocaine for $1,200. Although Mr. Greenwood had promised to sell the CI an additional ounce, he did not have the drugs at that time, and the CI did not wait for the ot her drugs to be delivered. Based on these five transactions, Mr. Gr eenwood was charged with two counts of improperly possessing guns a nd three counts of selling crack cocaine. At trial, the court instructed the jury on Mr. Greenwood’s defense that he was not guilty due to entrapment. The jury, however, found him guilty of both gun counts and the September 24 and November 2 drug counts. Mr. Greenwood moved for a judgment of acquittal on the drug counts, arguing that because the jury found him not guilty of the September 13 drug count, the court s hould find as a matter of law that the government did not prove that he was not entrapped when he engaged in the latter two drug deals. The court denied the motion, finding that the th ree drug transactions were distinct, that the ju ry was properly instructed on entrapment, and that the evidence supported a finding of guilt on the two later drug offenses.- 4 - ANALYSIS “We review de novo a district court’ s denial of a motion for judgment of acquittal, viewing all the evidence and drawi ng all reasonable inferences in the light most favorable to the government.” United States v. Hildreth , 485 F.3d 1120, 1125 (10th Cir. 2007) (internal quotation marks omitted). “[A] successful entrapment defense ex ists when the government (1) induces the defendant to commit an offense that (2) the defenda nt was not predisposed to commit.” United States v. Dyke , 718 F.3d 1282, 1291 (10t h Cir. 2013). Once an entrapment defense is rais ed, the government bears th e burden to prove “beyond a reasonable doubt that the defe ndant was not entrapped.” United States v. Ford , 550 F.3d 975, 982 (10th Cir. 2008). If the government disp roves either element, the entrapment defense fails. Id

. “Entrapment exists as a matter of law only if the evidence of entrapment is uncontradicted.” United States v. Nguyen , 413 F.3d 1170, 1177 (10th Cir. 2005) (internal quotation marks omitted). There must be “undisputed testimony” showing “conclusively and unmistakab ly” that the government induced the defendant to engage in criminal conduct. Id . at 1178 (emphasis and internal quotation marks omitted). Mr. Greenwood argues that the distri ct court erred in denying his motion for judgment of acquittal because the evidence at trial show ed he was entrapped as a matter of law with respect to the Septem ber 24 and November 2 drug transactions.- 5 - Relying on United States v. Beal , 961 F.2d 1512 (10th Cir. 1992) , he contends that all three drug transactions were part of th e same course of conduct resulting from the CI’s original inducement.
In Beal , 961 F.2d at 1513, a jury found the defendant not guilty of a first drug count, but guilty of a second. Based on the fact s in that case, this court held that the two drug deals, which occurred within approximately twenty-four hours of each other, were part of a single, c ontinuous course of conduct. Id . at 1516-17. Beal is distinguishable. Even if, as Mr . Greenwood assumes, the jury found entrapment with respect to the first transaction, 2 we conclude that as a matter of law he was not entrapped with respect to the second and third transactions. Unlike in Beal , here there was a variation of the ci rcumstances with each drug deal and the deals occurred on different days, several days apart. As such, the second and third transactions were separate and independent from the first drug deal and were not part of a continuous course of conduct. Nor were they “clo sely connected transactions without any intervening events.” Nguyen , 413 F.3d at 1180. Beal refused to adopt “as a general rule that once entrapment oc curs, a defendant’s s ubsequent willing acts are immunized from culpab ility.” 961 F.2d at 1517; see also Ford , 550 F.3d at 982

2 We do not agree with Mr. Greenwood’s assumption that the ju ry found that he was entrapped with respect to the first drug deal. The r ecord does not conclusively indicate why the jury chose to acquit Mr. Greenwood on the first drug count. It could have found that the government did not pr ove the first count beyond a reasonable doubt because the surveillanc e camera was obstructed duri ng part of the first drug deal. But the jury may have found as events unfolded that the evidence was conclusive as to the second a nd third drug transactions.- 6 - (“Even if a defendant was entrapped in one transaction, we do not automatically assume all subsequent tran sactions between the governme nt agent and defendant are tainted.”).
If Beal does not apply, Mr. Greenwood argu es that any predisposition he may have had to sell drugs on September 24 a nd November 2 was the product of improper government conduct and thus there was entrapment as a matter of law. Predisposition occurs when a defendant is ready and willing to commit the crime he was charged with. Dyke , 718 F.3d at 1291. It may be shown by evidence of prior illegal acts that are similar. Hildreth , 485 F.3d at 1126. It may also be shown by evidence that the defendant desired a profit, he was eager to partic ipate in the crime, he readily responded to the offer to part icipate, or he showed knowledge and experience in selling drugs. See Dyke, 718 F.3d at 1291-92. Ample evidence shows that Mr. Greenwood was predisposed to sell drugs. He had prior convictions for se lling drugs, which the governmen t established before the jury. At the time of his arrest, he possessed multiple cellphones, large amounts of cash, guns, drugs, and drug-relate d items at his home, all typi cal of a drug distributor. The CI testified that Mr. Gr eenwood sold guns and drugs because that is what gang members do. Also, Mr. Greenwood offere d drugs, among other things, to the CI when the CI wanted to sell his car. After the second drug deal, he asked the CI if he needed anything else, indicating that he had drugs for sale. And Mr. Greenwood attempted to sell the CI an additional ounce of crack cocaine during the third drug- 7 - deal. No evidence indicates reluctance by Mr. Greenwoo d to be involved in drug dealing. Unlike in Jacobson v. United States , 503 U.S. 540, 553-54 (1992), a case Mr. Greenwood cites to support his argumen t, the evidence does not show that the government induced a law-abiding citizen to commit a crime he never would have committed if he had been left alone. Furthermore, similar to Beal , Jacobson does not negate “an individualized treatment of the entrapment defense in multiple transaction crimes.” Nguyen , 413 F.3d at 1179 (tri al court gave entrapme nt instruction on first two transactions, but not on third). Viewing the evidence in the light most favorable to the government, we conclude that Mr. Greenwood was not entra pped as a matter of law and therefore the district court did not err in denying the moti on for acquittal. Acco rdingly, we affirm the district court’s judgment.

Entered for the Court

Jerome A. Holmes Circuit Judge