Petition — Grindrod v. United States

Office -Suoreme Court, us. |

: FILE

82-1505 or

FFB 35. 1963

| er osyeh STEVAS,

NO. ee

in the

Supreme Court

of the

United States

October Term, 1982

GEORGE GRINDROD,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRUCE ROGOW

Nova University Law Center

3100 S.W. 9th Avenue

Fort Lauderdale, Florida 33315

(305) 522-2300

Counsel for Petitioner

GEORGE GRINDROD

QUESTION PRESENTED

IS THE ENTRAPMENT DEFENSE

AVAILABLE TO A FEDERAL CRIMINAL

DEFENDANT WHOSE PARTICIPATION IN

AN OFFENSE WAS THE PRODUCT OF

GOVERNMENT PERSUASION, FRAUDU-

LENT REPRESENTATIONS, THREATS,

COERCIVE TACTICS AND HARASSMENT

DIRECTED TO A THIRD PARTY WITH THE

INTENT OF INDUCING THE DEFENDANT

TO ACT ONCE THOSE THREATS AND

PERSUASIVE TACTICS WERE MADE

KNOWN TO HIM BY THE THIRD PARTY?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................055. i

ye 8 Bs Bet err errr yr eer ke iii

oy 8. Fi sa are merrier rr 1

robs os . ri ere perry rt 1

CONSTITUTIONAL PROVISION INVOLVED .. 2

STATEMENT OF THE CASE ................. 2

REASONS FOR GRANTING CERTIORARI

A. The Decision Below Conflicts With The

Decision of the Second Circuit In United

States v. Valencia .............00000e: 6

B. The Decision Below Presents An Important

Question Which Has Not Been, But Should

Be, Decided By This Court ............. 8

CPR ov kd Streets ebayer esc ecrsseuneey 10

CERTIFICATE OF SERVICE ................. 11

Posy | Terre ro rrr rrr oT. . oe

ii

TABLE OF CASES

Henderson v. United States,

Oe ny fide dad nve'd oe re nen es

Newman v. United States,

200 Fed.128 (4th Cir. 1024)... 0. cece ccc cveees

Sherman v. United States,

es ya nd 6 be a oe ea

Sorrells v. United States,

a cn ke kemaee 6 ewe eos

United States v. Burkley,

601 F.2d 908 (D.C.Cir. 1978)... ccc ccccccees

United States v. Russell,

ee cake ek ed Ge

United States v. Valencia,

645 F.2d 1158 (2nd Cir. 1980) ...........0.2eee-

OTHER AUTHORITIES

Supreme Court Rule 20.1 ....... 2c. csccceccenns

TOBE UBC. GIBSGD) 0 ccc ccecacerses

Supreme Court Rule 21.1(b)................045.

iii

OPINION BELOW

The Opinion of the Court of Appeals is not yet

reported. It appears in the Eleventh Circuit Slip Opinions

at 942, United States u Lee, Grindrod and Lyell, January

3, 1983. A copy of the Opinion is included as an Appendix

to this Petition. This Petition seeks review only of the

portion of the Opinion affirming the conviction of

GEORGE GRINDROD.'

JURISDICTION

The judgment of the Court of Appeals was entered

on January 3, 1983, and this Petition was filed within

sixty (60) days of that date pursuant to Supreme Court

Rule 20.1. Jurisdiction is conferred by Title 28 U.S.C.

§1254(1).

‘Pursuant to Supreme Court Rule 21.1(b) the other parties in

the Court of Appeals were defendants Randall J. Lee and Gregg

Parker Lyell.

CONSTITUTIONAL PROVISION

INVOLVED

AMENDMENT V

No person shall be . . .

deprived of life,

liberty, or property

without due process

of law.

STATEMENT OF THE CASE

George Grindrod was convicted of conspiracy to

import cocaine and sentenced to 18 months imprisonment.

His friend, co-defendant and business partner, Randall

Lee, drew him into a scheme which, over a ten month

period, covered two continents and generated 7/10 of a

gram of cocaine. Slip opinion 944.

Lee, seeking to interest undercover agents in a

legitimate movie deal in addition to cocaine, met with

the agents on January 25, 1978, took $20,000 in cash

from them, and was then subjected to threats of death

unless he produced a cocaine connection for them. Lee,

who had not yet sought Grindrod’s involvement, offered

him as the Peruvian cocaine connection and promised

to secure his cooperation.’ The tape recording of that

*The tape revealed that Lee used Grindrod as the bait for the

$20,000:

LEE: That was the deal, You wanna meet George, I

gotta have the whole twenty.

(Tape Transcript Defendants’ Exhibit 1, p.49.)

meeting contained, among other numerous examples

of violence, crudeness and “creative” government conduct,

this dialogue with the government agents (whose cover

names are in parenthesis):

Agent Scrocca (Reno): Hey, I gave you twenty

thousand dollars. If I don’t get fucking results,

somebody’s going to die!

Agent Williams (Tony Wingo): Reno!

Agent Scrocca (Reno): Somebody’s gonna die!

(Tape Transcript, Def.Ex.1A, p.48)

The trial judge was offended by the government

conduct, saying:

. certainly it doesn’t make one very proud

of the law enforcement conduct in this case at

that meeting of the twenty-fifth of January. .. .

(R 955).

The Eleventh Circuit wrote:

(Footnote 2 Continued)

At the trial, Lee acknowledged Grindrod was uninvolved and

had never told him of any South American cocaine source (R.

725-726), but nevertheless he had assured the agents Grindrod

was going to get them “coke”, leading Agent Scrocca to exclaim:

Then you got the whole fucking twenty thousand dollars!

(Tape Transcript Defendants’ Exhibit 1A, p.15.)

Such inducement as may have been made upon

Grindrod originated with Lee, who was subjected

to threatening conversation by the undercover

government officials.

Slip opinion at 947.

Grindrod, only after being importuned by Lee,

who related the threats to him and sought his cooperation,

did play out a role which took him to various meetings

with the agents, and unsuccessful and aborted trips to

Peru. Those meetings and trips had a Keystone Cops

quality. The agents, calling themselves “Tony Wingo”

and “Reno”, convinced a frightened Grindrod, as they

had convinced Lee, that they were members of an

“Italian organization or a mafia syndicate” (R 927-928).

In the ensuing months, Grindrod produced no cocaine

source but did pay the agents $1,000 after they, feigning

outrage, complained about their expenses for two futile

trips to Peru in which they never saw a speck of cocaine

(R 561-562; 581-582). In Miami, Grindrod did provide

the agents with 7/10 of one gram of 100% pure cocaine

which a government chemist characterized as typical

of pharmaceutical, not illicit, cocaine (R 319-322; 341;

354-355). Other than big talk, the only other thing Grindrod

provided the agents was another $6,500, paid to mollify

them and end his relationship with the scheme (R 506-

507; 931-932).

Several months later he was indicted, leading to the

instant conviction and appeal. At trial, Grindrod sought

an entrapment instruction, claiming the government’s

conduct created a substantial risk that the offense

would be committed by him, although he was not

predisposed to commit it. The District Court denied

the requested instruction and the Eleventh Circuit

affirmed:

As the Fifth Circuit stated in Henderson v.

United States, 237 F.2d 169,175 (1956), the

doctrine of entrapment does not extend to

acts of inducement on the part of a private

citizen who is not a public official.

Slip opinion at 947.

The Eleventh Circuit found inapposite United States

v. Valencia, 645 F.2d 1158,1168 (2nd Cir.1980), where

the Court said:

If a person is brought into a criminal scheme

after being informed indirectly of conduct or

statements by a government agent which could

amount to inducement, then that person should

be able to avail himself of the defense of

entrapment just as may the person who receives

the inducement directly.

Since Grindrod was induced by Lee only after, and

as a result of, the agent’s deceitful and threatening

demands for Grindrod’s participation, in the Second

Circuit Grindrod would have been entitled to an

entrapment instruction.

Citing the conflict between the Eleventh and Second

Circuits, petitioner sought, and received, a stay of the

mandate pending review of his petition by this Court.

REASONS FOR GRANTING

CERTIORARI

A. The Decision Below Conflicts With The Decision of

the Second Circuit in United States v. Valencia.

In United States v. Valencia, 645 So.2d 1158 (2nd

Cir.1980), the Court stated the issue and its resolution

this way:

It was the judge’s thought, and is the

Government’s position on appeal, that because

a defendant cannot be entrapped unless he

has had actual contact with a government agent

who directly induced him to commit the offense,

William [Valencia] was not entitled to have the

defense of entrapment through indirect

inducement go to the jury. We cannot agree

with this view. If a person is brought into a

criminal scheme after bring informed indirectly

of conduct or statements by a government

agent which could amount to inducement, then

that person should be able to avail himself of

the defense of entrapment just as may the

person who receives the inducement directly.

Id. 645 F.2d at 1168 (footnote omitted).

The Court’s holding was succinct:

In general, we hold that a vicarious entrapment

defense can be presented to a jury only where

the defendant first introduced admissable

evidence that the agents inducement was directly

communicated to him by another.

Id. 645 F.2d at 1168-1169.

The Eleventh Circuit opinion brought Grindrod

squarely within the Valencia holding:

Grindrod was not induced by government

officials to join the conspiracy. Perhaps, he

was “induced” by Lee to do so.

Slip opinion at 947.

Lee “was subjected to threatening conversation

by the undercover government officials”. He “induced”

Grindrod. Jbid. Under Valencia, Grindrod would have

been entitled to the entrapment instruction. The Eleventh

Circuit refused the instruction adopting the position

that:

[T}he doctrine of entrapment does not extend

to acts of inducement on the part of a private

citizen who is not a government official.

Slip opinion at 947.

Therefore, the Eleventh Circuit opinion in this

case is in direct conflict with the Second Circuit in

Valencia.

B. The Decision Below Presents An Important Question

Which Has Not Been, But Should Be, Decided By

This Court

Entrapment is the inducement of the commission

of a crime by one not predisposed to commit it. The

contours of the defense were initially established in

Sorrells v. United States, 287 U.S. 435 (1932):

“When the criminal design originates, not with

the accused, but is conceived in the mind of

government officers, and the accused is by

persuasion, deceitful representation or

inducement lured into the commission of a

criminal act, the government is estopped by

sound public policy from prosecution therefor.”

Id. 287 U.S. at 445, quoting Newman v. United

States, 299 Fed.128,131 (4th Cir.1924).

Subsequent cases have reaffirmed those principles.

Sherman v. United States, 356 U.S. 369 (1958); United

States v. Russell, 411 U.S. 423 (1973). United States v.

Burkley, 591 F.2d 903,914 (D.C.Cir.1978), surveyed the

cases and gave this contemporary restatement of the

Sorrells doctrine:

[Tjhe trial judge must give an [entrapment]

instruction if there is any foundation in the

evidence, when viewed in a light most favorable

to the defendant, for a finding of “inducement”

—that is for a finding of persuasion, fraudulent

representations, threats, coercive tactics,

harassment, promises of reward, pleas based

on need, sympathy or friendship, or any other

government conduct that would create a risk

of causing an otherwise unpredisposed person

to commit the crime charged.

This Court has never addressed the question of

whether Sorrells and its progeny estops the government

from intentionally inducing an unpredisposed person

through a third party conduit. This case presents that

unanswered question. |

The question is important because it involves the

integrity and limits of government conduct at a time

when, seeking to validly combat crime, artifice and

deception have grown into mainstays of law enforcement

efforts throughout the nation. How far the government

may go in its efforts poses an important issue for

society and for the petitioner.

CONCLUSION

Because the decision below conflicts with that of

another Court of Appeals, and because the question

presented is an important one, yet unanswered by this

Court, certiorari should be granted.

Respectfully submitted,

BRUCE ROGOW

Nova University Law Center

3100 S.W. 9th Avenue

Fort Lauderdale, Florida 33315

(305) 522-2300

Counsel for GEORGE GRINDROD

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the

foregoing Petition For Writ Of Certiorari To The United

States Court of Appeals For The Eleventh Circuit has

been furnished by U.S. Mail to ROBERT LEVENTHAL,

Assistant United States Attorney, at 501 Federal Building,

80 North Hughey Avenue, Orlando, Florida 32801, and

two copies to REX LEE, Solicitor General, Department

of Justice, Washington, D.C., on this __ day of February,

1983.

BRUCE ROGOW

11

[942]

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Randall J. LEE, George Grindrod and

Gregg Parker Lyell,

Defendants-Appellants.

No. 80-5224.

United States Court of Appeals,

Eleventh Circuit.

Jan. 3, 19838.

Defendants were convicted in the United States

District Court for the Middle District of Florida, John

A. Reed, Jr., J., for conspiracy to import cocaine into

the United States, and they appealed. The Court of

Appeals, Clark, Circuit Judge, held that: (1) evidence,

which established that one defendant traveled to Peru

to facilitate drug deal and showed undercover agents

how they might smuggle drugs into the country in

llama skins, that another defendant was in close contact

with codefendant and had knowledge of his actions and

that a third codefendant acted as intermediary between

the defendant who was in Peru and the agents, was

sufficient to convict defendants of conspiracy to import

cocaine into the United States, and (2) defendants were

not entitled to entrapment instruction.

Affirmed.

App. 1

1. Conspiracy —28(3)

Essential element of a drug conspiracy is an

agreement by two or more persons to violate narcotics

laws.

2. Conspiracy —47(12)

Existence of an agreement by two or more persons

to violate the narcotics laws may be proved by

circumstantial evidence, such as inferences from the

conduct of alleged participants or from circumstantial

evidence of a scheme.

3. Conspiracy —40.1

A person need not have knowledge of all details of

a conspiracy; proof is required only that he knew of the

essential objective of the conspiracy.

4. Conspiracy —40.1

A defendant may be found guilty of conspiracy

even if he plays only a minor role in the total scheme.

5. Conspiracy —47(12)

Evidence, which established that one defendant

traveled to Peru to facilitate drug deal and showed

undercover agents how they might smuggle drugs into

the country in llama skins, that another defendant was

in close contact with codefendant and had knowledge

of his actions and that a third codefendant acted as

intermediary between the defendant who was in Peru

App. 2

and the agents, was sufficient to convict defendants of

conspiracy to import cocaine into the United States.

6. Criminal Law —867

Defendant, who was charged with conspiracy to

import cocaine into the United States, suffered no

significant prejudice as result of admission of a statement

in a taped conversation that implied he had been in

prison before, particularly in light of the clear evidence

of his guilt and the isolated nature of the comment and,

therefore, trial court did not err in denying defendant's

motion for mistrial.

[943]

7. Criminal Law —772(6)

Defendants, who were not “induced” by government

officials to join in drug conspiracy, were not entitled to

an entrapment instruction.

8. Criminal Law —772(6)

In order to be entitled to an entrapment instruction,

the defendant must produce evidence that shows

government inducement; furthermore, nature of the

required showing is that some evidence must be shown,

but more than a scintilla must be presented.

9. Criminal Law —37(3, 4)

For entrapment to exist, criminal design must

originate with government officials, and it is they who

App. 3

must plant criminal design in the mind of an innocent

man.

10. Criminal Law —38

Defendant’s failure to take advantage of numerous

reasonable opportunities to inform the police of the

drug deal with undercover agents whom he believed to

be members of “Mafia” precluded assertion of duress

defense in prosecution for conspiracy to import cocaine

into the United States.

11. Criminal Law —38

Threat of imminent physical harm is a requirement

of the duress defense.

Appeals from the United States District Court for

the Middle District of Florida.

Before TJOFLAT and CLARK, Circuit Judges,

and M{LLER*, Judge.

CLARK, Circuit Judge:

Gregg Parker Lyell, George Grindrod, and Randall

J. Lee appeal their convictions under 21 U.S.C. §§ 960

and 963 for conspiracy to import cocaine into the United

States. We affirm their convictions.

*Honorable Jack R. Miller, Judge for the U.S. Court of Customs

and Patent Appeals, sitting by designation.

App. 4

The bizarre story opens in late 1977 when defendant

Lee commented to Luis Edwards Vergara that he was

looking for a cocaine buyer. Vergara mentioned this

conversation to a friend of his, Jim Brewer, who passed

along the name and number of “Tony Wingo” (undercover

agent Herb Williams) to defendant Lyell, who was acting

in concert with Lee. Lyell called “Tony Wingo” and

arranged a meeting to discuss “South American products.”

At this meeting, Lyell identified the “South American

products” as “pink champagne,” a slang term for cocaine.

Lyell indicated that it would cost $20,000 for an

introduction to a Peruvian cocaine producer and that

the cocaine would be available for $13,000 per pound.

Over the next few days, Lyell had several meetings

with “Wingo” as well as with “Reno” (undercover agent

Peter Scrocca) and “Georgie” (undercover agent John

Ellis). During these meetings, Lyell indicated that one

hundred kilos of cocaine were available for sale. Further,

he indicated that his sources in Peru agreed to deliver

the cocaine to Orlando or Miami at $23,000 per kilogram.

On January 17, at a meeting in Kissimmee, Lee

joined the negotiations. Lee announced that for $20,000

he would introduce them to a source in Lima and that

they would get “top quality merchandise.” Lee then

informed Grindrod of the day’s events.

[944] In meetings afterward, Lee tried to convince

the agents that his proposed movie, “The Marksman,”

would provide an excellent front for their smuggling

operations and repeatedly attempted to sell them shares

in it. The agents, posing as Mafia chieftains, rejected

all such solicitations and pressed negotiations for the

cocaine sale.

App. 5

A long series of meetings then commenced. Lee

attempted to get the agents to invest in his movie, but

continued to promise to secure them a cocaine source

in return for $20,000. It was arranged that Grindrod, a

pilot for Braniff Airlines, would fly down to Peru and

make the arrangements for the agents to meet the

Peruvian source, Juan Lujan. Lee was paid the $20,000.

Grindrod met several of the agents at the Hotel

Carillion in Lima on February 7, 1978. The agents met

with Lujan, and Grindrod showed them how cocaine

could be smuggled into the United States inside the

leather backing of llama rugs. The actual attempt to

buy cocaine failed when Lujan announced that his

deliveryman with a sample was not going to arrive.

The agents then returned to Miami.

Further meetings were held between the agents

and both Lee and Grindrod. During one of these meetings,

Lee introduced MacLester Snow, who offered “Wingo”

help in solving the probiems that had developed. Later,

Lee offered to sell his business, “The House of Llama,”

so it could be used by Wingo as a front to smuggle

cocaine.

On March 1, 1978, Grindrod turned over to agents

7/10 of a gram of cocaine which tested out at 100%

pure. Grindrod informed the agents that this was a

sample of the cocaine that they would purchase. Lee

attempted to facilitate negotiations between Lujan and

the agents, specifically in the area of how Lujan would

be paid for his cocaine. Lee did make clear that he

would not physically get involved in the discussions

between Lujan and the agents. Lee also set the price

for the delivery of the cocaine at $12,000 per kiio,

App. 6

which did not include the $13,000 per kilo to be paid to

Lujan.

In late April, arrangements were made for a cocaine

sale to be transacted in Lima. This deal fell through,

but new arrangements were made and the agents met

Grindrod on May 7, 1978 at the Hotel Cesar in Mira

Flores, Peru. This trip, however, also proved fruitless

as Lujan called off the deal when he became aware of

the Peruvian investigative police watching the Americans.

After this point, the deal began to fall apart. On

July 17, 1978, the agents told Grindrod they wanted

their $20,000 back. On July 26, 1978, Grindrod returned

$6,500; Lee explained that he had no money left to

return. Lee stated that of the original $20,000, he kept

$6,500; Grindrod got $6,500; $5,000 went into “The

House of Llama”; and $2,000 went to Lyell. Thus, $13,500

was not recoverable.

On October 12, 1978, Grindrod and Lee made one

more attempt to connect the agents and Lujan. This

too fell through and the agents broke off contact. On

July 25, 1979, Grindrod, Lee, and Lyell (as well as

several other individuals) were indicted by the Orlando

grand jury and charged with conspiracy to import cocaine

into the United States.

The appellants allege that the evidence is insufficient

to convict them of conspiracy to import cocaine into

the United States. At [945] most, the appellants contend,

there was an agreement to provide the name of the

Peruvian drug connection. Lyell argues that this argument

is especially applicable to him as he claims he withdrew

from the conspiracy in January, long before the sample

App. 7

of cocaine was delivered. The appellants present a case

out of New York, United States v. Hysohion, 448 F.2d

343 (2d Cir. 1971), as authority. Hysohion stands for the

proposition that a man can bring together a willing

buyer and a willing seller without necessarily creating

a conspiracy.

The Eleventh Circuit, in reviewing the sufficiency

of the evidence te support a criminal conviction, inquires

whether “a reasonable trier of fact could find that the

evidence establishes guilt beyond a reasonable doubt.”

United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)

(en bance).'

[1-4] The essential element of a drug conspiracy

is an agreement by two or more persons to violate the

narcotics laws. United States v. Tamargo, 672 F.2d 887,

889 (11th Cir. 1982); United States v. Spradlen, 662 F.2d

724, 727 (ilth Cir. 1981). The existence of such an

agreement may be proved by circumstantial evidence,

such as “inferences from the conduct of the alleged

participants or from circumstantial evidence of a scheme.”

Id. A person need not have knowledge of all the details

of a conspiracy; proof is required only that he knew of

the essential objective of the conspiracy. United States

v. Tamargo, supra, 672 F.2d at 889; United States v.

Hernandez, 668 F.2d 824 (5th Cir. 1982). Moreover, the

“defendant may be found guilty of conspiracy. . .even

if he plays only a minor role in the total scheme.” Jd;

see also United States v. Hirst, 668 F.2d 1180, 1185

(11th Cir. 1982).

'We are bound by all en banc decisions of the Unit B division

of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667

F.2d 33 (11th Cir. 1982) (corrected opinion).

App. 8

[5] The evidence in this case, viewed in the light

most favorable to the government, supports the

convictions of the appellants. Grindrod traveled to Peru

to facilitate the drug deal, he showed the agents how

they might smuggle drugs into the country in llama

skins, he produced a sample of cocaine in Miami, he

paid the agents $1,000 to defray their expenses on

their unsuccessful trip to Lima and remarked that

Lujan would pay him back, as well as numerous other

acts which indicate his guilt. Lee was in close contact

with Grindrod throughout this whole period and had

knowledge of his actions, he was concerned about

facilitating the remittance of payment from the agents

to Lujan, and he negotiated the price of the delivery of

the cocaine, to name but a few of his activities that

indicated Lee conspired to import the drugs into the

country. Lyell, among other acts, informed the agents

of the price of the cocaine, he guaranteed its quality, he

announced the 100 kilos were available for sale, he

acted as an intermediary between Grindrod who was

in Peru making arrangements with Lujan and the agents,

and he was a party to conversations where schemes to

import the cocaine were discussed. Given this extensive

involvement on the part of the appellants, it is clear

that they did considerably more than just facilitate the

meeting of willing buyers and sellers. Therefore, we

find Hysohion inapposite. We hold that the evidence

was sufficient to convict the appellants of conspiracy

to import cocaine into the United States.’

*All the appellants urged us to give careful consideration to

the tape of the January 25 meeting between Lee, Lyell and the

agents. We have given the tape careful study and have concluded

that it in no way exonerates any of the appellants. While certain

comments made by Lee tend to show that he did not intend to

App. 9

[946] Lyell raises an argument that the trial court

erred in finding by a preponderance of the evidence

that he was a member of the conspiracy charged, and

thus admitting heresay statements against him. This

argument has no merit. We have already held that the

government presented evidence sufficient to prove beyond

a reasonable doubt that a conspiracy existed and that

Lyell was a part of it. Necessarily, therefore, the

government must have proved by a preponderance of

evidence that Lyell was part of a conspiracy to import

cocaine.

[6] Lyell also maintains that the trial court erred

in denying his motion for mistrial based upon the

admission of a statement in a taped conversation that

implied he had been in prison before. Specifically, the

complained of statement was Lee’s comment to one of

the agents that Lyell “gets involved in stuff that’s

gonna, you know, wind him back in the slammer, and,

ahh, if, you get too involved with some of his crazy

things, ah, you know, he'll drag a lot of other people

down.” Lyell argues that since he put on no evidence

under Federal Rule of Evidence 404(a), evidence of bad

character could not be used to impeach him.

(Footnote 2 Continued)

import cocaine, these statements cannot be viewed in isolation.

Other statements were made by Lee during the meeting which

indicated his willingness to facilitate the importation of cocaine

into the United States. Further, as noted above, the January 25

meeting was only one of a series of meetings. The examination of

all the tapes makes the conclusion inescapable that Lee, Lyell,

and Grindrod voluntarily attempted to import cocaine into the

United States.

App. 10

We decline to accept Lyell’s view of this issue. A

number of factors indicate that he should not prevail.

His counsel reviewed the tape in question prior to its

being played for the jury. He made no objection prior

to its admission. Second, his attorney declined the trial

judge’s offer to give a curative instruction. Third, the

prosecution presented a large number of tapes,

representing literally months of telephone conversations

and meetings. Thus, it is clear that this particular tape

was not presented in order to attack Lyell’s reputation,

but was simply one of a series showing the development

of the conspiracy. Lastly, the sheer volume of evidence,

both against Lyell and the other appellants, was so

great as to make the isolated comment insignificant.

Under United States v. Franklin, 586 F.2d 560 (5th Cir.

1978), and United States v. Roland, 449 F.2d 1281 (5th

Cir. 1971), it has been established that the admission of

such a statement does not require automatic reversal.

Rather, as in Roland, we conclude that Lyell suffered

no significant prejudice thereby. Given the clear evidence

of his guilt and the isolated nature of the comment, we

hold that Lyell’s motion for mistrial was properly denied.

[7] Both Lee and Grindrod argue that the trial

court erred in not giving an entrapment instruction.

We hold that the district court properly denied the

instruction in both cases.

[8] It is settled in this circuit that the defendant

must produce evidence that shows government

inducement. Further, the nature of the required showing

is that some evidence must be shown, but more than a

scintilla must be presented. United States v. Reyes,

645 F.2d 285 (5th Cir. 1981). [947] If this level of evidence

is met, then the entrapment instruction should be given.

App. 11

[9] For entrapment to exist, the criminal design

must originate with government officials, and it is they

who must plant the criminal design in the mind of an

innocent man. Sorrells v. United States, 287 U.S. 435,

53 S.Ct. 210, 77 L.Ed. 413 (1932); United States u Webster,

649 F.2d 346 (5th Cir. 1981). We turn now to the question

of whether the appellants met the Reyes standard.

The criminal design clearly originated with Lee. It

was Lee who sent out agents looking for cocaine buyers.

There is no evidence that the importation scheme

originated with the government, and numerous acts

point to Lee’s predisposition to commit the crime. Thus,

Lee’s arguments are completely inapposite and meritless,

and he was not entitled to an entrapment instruction.

Grindrod argues that the government “entrapped”

him. Specifically, Grindrod argues that he played along

with the scheme to “save Lee’s skin.” He maintains

that he had no desire to smuggle cocaine into the

country. Rather, according to his brief:

His theory of defense was that his

participation in the activities upon which the

charge was based was occasioned by the

government agents’ threats and coercive tactics

directed to his friend, Randy Lee, who became

involved with the agents and then, frightened

by them, sought Grindrod’s help in acting out

a scheme which had no ability to produce cocaine.

* * * * *

Most of the important facts in this case are

not disputed. There is no doubt that Randall

App. 12

Lee, Gregg Lyell, and George Grindrod spoke

to and met with DEA agents regarding

cocaine. The disputes center around the

defendants’ motivation and the court's failure

to submit to the jury the theory of defense

advanced by Mr. Grindrod, whose role

commenced only after Randy Lee took $20,000

from government agents who told him

“Somebody’s gonna die” unless the agents got

“results.”

Grindrod’s brief p. 3.

Grindrod was not induced by government officials

to join the conspiracy. Perhaps, he was “induced” by

Lee to do so. As the Fifth Circuit stated in Henderson

v. United States, 237 F.2d 169, 175 (1956), the doctrine

of entrapment does not extend to acts of inducement

on the part of a private citizen who is not a government

official. Moreover, Lee was neither an agent of the

government officials, Pearson v. United States, 378

F.2d 555, 560 (5th Cir. 1967), nor an unsuspecting third

party passing on an inducement upon Grindrod by

government officials, Johnson v. United States, 317

F.2d 127, 133 (D.C. Cir. 1963). Such inducement as may

have been made upon Grindrod originated with Lee,

who was subjected to threatening conversation by the

undercover government officials. However, Lee was

not induced and had no entrapment defense. Grindrod

cites United States v. Valencia, 645 F.2d 1158, 1168 (2d

Cir. 1980), where the court said:

If a person is brought into a criminal scheme

after being informed indirectly of conduct or

statements by a government agent which could

App. 13

amount to inducement, then that person should

be able to avail himself of the defense of

entrapment just as may the person who received

the inducement directly.

However, any indirect “inducement” in that case by

undercover government officials [948] through defendant

William Valencia’s wife was upon the defendant William

Valencia and originated with the government officials,

so that case is not apposite. Therefore, we hold that the

court below properly denied the requested entrapment

defense instruction.

[10,11] We note that the root of Grindrod’s defense

is grounded in duress, not entrapment. However, Grindrod

had numerous reasonable opportunities to inform the

police of the deal with the “Mafia” and thereby “save”

Lee. He failed to take advantage of such opportunities.

This precludes any duress defense. See, e.g., Rhode

Island Recreation Center v. Aetna Casualty and Insurance

Co., 177 F.2d 603 (1st Cir. 1949); State uv. St. Clair, 262

S.W.2d 25 (Mo. 1953); W. LaFave & A. Scott, Criminal

Law 378, 379 (1972). Further, there was no indication

that Lee was threatened with imminent physical harm,

also a requirement of the duress defense. Thus, when

faced with a duress defense which had to fail, the

appellant Grindrod was forced to attempt an entrapment

defense, which was equally doomed to failure.

We have examined all of the appellants’ contentions

and have found them to be without merit. Consequently,

affirmation of their convictions is required.

AFFIRMED.

App. 14