873 F. 2d 1441 - United States v. Cohen

Milton Bachman Cohen and Thomas H. Taylor, Jr. (Defendants) appeal from their convictions of conspiracy to escape and attempted escape. 18 U.S.C.A. Sec. 371 (West 1966); 18 U.S.C.A. Sec. 751 (West 1976 & Supp.1988). On Defendants' motion, this appeal was submitted on briefs without oral argument. Taylor alleges reversible error in the jury selection process and Cohen in the district court refusal to instruct the jury on entrapment. We find no merit to these contentions and affirm.

During jury selection, Taylor challenged the racial composition of the venire, arguing that it did not represent a fair cross section of the community since only two of the 44 prospective jurors were black. The district court denied Taylor's motion to dismiss the panel and proceeded to conduct voir dire. The government later exercised one of its peremptory challenges against a black venireman, which Taylor contended violated Batson v. Kentucky, 476 U.S. 79 (1986). The court accepted the government's reason for the challenge and the jury was impanelled.

Taylor contends that the district court erred in failing to conduct a hearing to determine whether the venire was selected as a result of racial discrimination. This court recently examined the jury selection procedure employed by Maryland district courts in United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 101 L.Ed.2d 883 (1988), and stated that "the Constitution does not require that the jury selection process be a statistical mirror of the community; it is sufficient that the selection be 'in terms of a "fair cross section" ' gathered without active discrimination." Id. at 1445. There was no evidence of discrimination in the selection of the venire. The district court correctly denied the motion to dismiss the panel.

The district court likewise did not clearly err in finding that the government's reason for the peremptory challenge to a black prospective juror was neutral. Counsel for the government proffered that this prospective juror had stated at an earlier voir dire that his mother had once been a victim of crime after which she was "treated unfairly" by a prosecutor, a fact the venireman neglected to mention during voir dire for Taylor's trial.

At trial Cohen attempted to establish an entrapment defense. At the conclusion of testimony, he requested that the jury be instructed on the affirmative defense of entrapment. The district court not only refused to give the requested instruction, but specifically advised the jury that entrapment was not available to Cohen as a matter of law.

In order to be entitled to an instruction on entrapment, a defendant must show that the government induced him to commit the criminal act and that he lacked predisposition to commit the crime. See United States v. DeVore, 423 F.2d 1069, 1071 (4th Cir.1970), cert. denied, 402 U.S. 950 (1971). Here, the district court did not err in ruling that Cohen failed to meet his burden of production. While some evidence was presented that a government agent solicited Cohen's complicity in the escape plan, Cohen's own testimony demonstrates that he possessed the requisite predisposition to commit the crime. Finally, the district court instruction to the jury that entrapment was not available as a matter of law was not erroneous. United States v. Perl, 584 F.2d 1316, 1321 (4th Cir.1978), cert. denied, 439 U.S. 1130 (1979).

AFFIRMED.