I. Background
Defendanb-Appellant Steve Fiedeke and a business partner, Tim Pinnick, purchased a wholesale distribution company in January, 2002. Fiedeke and Pinnick planned to sell various products to convenience stores throughout Northern Indiana. One of the products they sought to sell was ephedrine, a federally regulated List I chemical. The federal regulations require a prospective seller to obtain a license from the Drug Enforcement Administration (“DEA”). Failure to obtain a license and then selling is a crime.
Fiedеke applied for a license with the DEA. DEA agents spoke to Fiedeke and told him that they would recommend denying his application. The DEA was apparently concerned about the volume of ephedrine Fiedeke sought to distribute and his plan to store the drugs in his garage. At one point during their conversation about licensing, Fiedeke asked DEA Agent Raber whether it was legal to sell ephedrine as an agent of another company. Raber responded by stating that he is not a lawyer. Fiedeke promised to appeal the denial of his Icense application.
At some point, Fiedeke read DEA regulation 21 C.F.R. § 1309.24 which reads as follows:
Exemption of Agents and Employees. The requirement of registration is waived for any agent or employee of a persоn who is registered to engage in any group of independent activities, if such agent or employee is acting in the usual course of his -or her business or employment.
In April, 2002 Fiedeke contacted Dean Hollen of the Three Rivers Trading Company, a licensed ephedrine distributor, in the hopes of obtaining some of the drug for distribution. Hollen repeatedly refused Fiedeke’s requests. On one of these visits, when Hollen was out of town, Fie-deke told Hollen’s wife that her husband had already agreed to sell him ephedrine and that he would be selling it as Hollen’s agent. Mrs. Hollen nonetheless refused to sell the product to Fiedeke.
Fiedeke tried to purchase the drug from another licensed ephedrine distributer, Don Tinkham, owner of Bestline Foods, who also refused Fiedeke’s requests. When DEA agents called Tinkham in preparation for Fiedeke’s appeal of the denial of his license, Tinkham mentioned that Fiedeke had been trying to purchase ephedrine from him. After discussing it, Tinkham agreed to assist the DEA in an undercover drug operation. To that еnd, Tinkham called Pinnick and said that he had changed his mind about selling ephedrine to Pinnick and Fiedeke.
In October, 2002 Fiedeke purchased an amount of ephedrine from Tinkham’s Best-line Foods and sold it to various convenience stores in Indiana. He told one of his customers that he had just received his license to sell ephedrine. However, when that same customer asked for more ephedrine at a later dáte, Fiedeke said that the license required too much paperwork and that he was not going to keep it. Another store owner believed that Bestline Foods was a competitor of Fiedeke’s.
Fiedeke again purchased ephedrine from Bestline Foods in late' November, *410 2002. As he was beginning to distribute the product, he noticed that he was being followed by the police. Fiedeke then secreted the remaining ephedrine in a laundromat that he owned. Shortly thereafter, Fiedeke surrendered to the police.
A federal grand jury returned a two-count indictment charging Fiedeke with distributing a List I chemical, ephedrine, without being registered with the DEA and attempting to distribute a List I chemical, ephedrine, in violation of 21 U.S.C. §§ 843(a)(9) and 846. A jury trial resulted in guilty verdicts on both counts. Fiedeke was sentenced to four days in jail and one year of supervised probation. The district court stayed the execution of Fiedeke’s sentence while this appeal is pending.
II. Discussion
A. Entrapment Jury Instruction
Fiedeke argues that the district court denied him due process by refusing to instruct the jury on his entrapment defense. A defendant is entitled to have the jury consider any theory of defense supported by law аnd evidence.
United States v. Kelley,
As a prerequisite for рresenting to the jury an entrapment defense the defendant must make two distinct showings: 1) the government induced the defendant to commit the crime, and 2) the defendant was not predisposed to commit the offense.
United States v. Blassingame,
It is clear that the government did not induce Fiedeke to commit the crime of distributing or attempting to distribute ephedrine without a proper license. The government assisted in Fiedekе’s procurement and possession of the drug, which are not criminal offenses. Furthermore, the government did not attempt to persuade the defendant to sell the drug or assist him in the actual distribution of the drug.
The principal question in entrapment cases is whether thе defendant was predisposed to commit the crime; whether he “was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.”
Mathews v. United States,
*411 Fiedeke’s brief says, “[i]t was the government through Mr. Tinkham who induced the defendant to purchase the ephedrine. It was at the government’s request that Tinkham called the defendant offering to sell ephedrine. It was the government, through Tinkham, who assured the defendant that everything was within DEA guidelines.” This apparently was to show that he was reluctant to engage in the criminal conduct, and would not have done so if is was not for the government’s assurances that “everything was within DEA guidelines.” The first sentence was shоwn to be untrue; Fiedeke had attempted to obtain ephedrine' without a license before the government became involved in the investigation. This essentially negates the importance or relevance of the second sentence. The third sentеnce, however, deserves a bit more attention.
The statement by Tinkham that “everything was within DEA guidelines” appears to be correct in that the purchase of ephedrine by Fiedeke was not illegal. Therefore, the transaction in which Tink-ham and Fiedeke еngaged was within DEA guidelines and, alone would not have opened the defendant to criminal liability. Second, the evidence shows that Fiedeke intended to distribute the ephedrine without such assurances anyway. The evidence shows an attempt to fraudulently induce Hollen’s wife to sell him ephedrine. Other instances of Fiedeke repeatedly attempting to purchase the drug prior to receiving assurances that everything was legal also showed that he was predisposed to commit the crime.
B. Burden of Proving Exception
At trial, Fiedeke claimed that he was an agent of Tinkham and therefore, exempt from criminal liability under 21 U.S.C. § 822(c). The trial court gave an instruction which required the defendant to prove agency. ’ Fiedeke claims that this instruction improperly shifted the burden of proof and thus, violated his right to a fair trial. In proposing the instruction that required Fiedeke to prove agency, the government relied upon 2l U.S.C. § 885(a)(1) which reads, in relevant part, as follows:
It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this sub-chapter, and the burden of going forward with the evidence with respect to any such, exemption or exceptiоn shall be upon the person claiming its benefit.
Fiedeke concedes that 21 U.S.C. § 885(a) applies to List I chemicals and, by extension, to him and his conduct. With this concession, the inquiry, is essentially over. Fiedeke’s agency defense is, as his own brief says, an “exemption.” The government is not required to “negative any exemption” under the statute. So, the plain language of the statute clearly puts the agency-issue’s burden of proof on Fiedeke, for he is the person “claiming its benefit.”
C. Specific Intent Instruction for Attempt Count
Fiedeke’s next argument is that he was entitled to а specific intent instruction on the charge of attempt. We agree that he was so entitled, as did the district court when it gave a specific intent instruction. It appears as though Fiedeke’s complaint is that he did not get
his
specific intent instruction. In reviewing а challenge to jury instructions we view the instructions as a whole and consider the challenged instruction in the context of the entire proceeding.
Resnover v. Pearson,
The Seventh Edition of Black’s Law Dictionary defines specific intent as, “[t]he intent to accomplish the precise criminal act that one is later charged with.” Seventh Circuit case law is in accord with this definition for attempted crimes require the intent to cоmmit the underlying offense and a substantial step towards its completion.
E.g., United States v. Magana,
D. The Jury Instructions as a Whоle Did Not Deny Due Process
Fiedeke claims, “reviewing the instructions as a whole, it can be seen that the jury was not properly instructed on the burden of proof.” He then goes on to rehash all his previous arguments in support of his claim that he was denied due рrocess as a result of the jury instructions. As we have found against him on his earlier arguments, they are insufficient to support this argument. Two points made by Fiedeke, however, deserve attention.
Fiedeke argues that his due process rights were violated because of “the lack of an instruction making it clear the burden of proof remained with the government.” This argument is completely meritless. Instruction number ten, given by the court, says “[t]he burden of proof stays with the government throughout the case.”
Fiedeke’s final argument takes issue with the agency instruction. As was noted before, Fiedeke claimed that he was an agent of a licensed ephedrine distributor and therefore, he was exempt from criminal liability. Also discussed before, we noted that the burden of proof on this issue properly rеmained with Fiedeke.
This court will not disturb a criminal conviction based upon problems with the jury instructions unless we believe those instructions prejudiced the defendant.
United States v. Souffront,
“Agent” is defined by 21 U.S.C. § 802(3) which reads, “an authorized person who acts on behalf of or at the direction of [an ephedrine] distributor.” The jury instructions on agency' — which Fiedeke makes no complaint about except with regard to the lack of a burden of proof — required the jury to find 1) a manifestation by the principal that the defendant act on behalf of the principal and with his authority, 2) defendant’s acceptance of principal’s authority over him, and 3) the principal exerted control over the defendant. The conversations between Fiedeke and Tink-ham, the licensed distributor, show that Tinkham never authorized Fiedeke to sell product on his behalf. It is also clear that Tinkham did not employ Fiedeke. There is no evidence that Tinkham exercised any direction of, or authority over Fiedeke. Fiedeke even testified that he decided who to sell to and under what terms. Simply put, the evidence showing that Fiedeke was not an agent of a licensed ephedrine distributor is overwhelming. Therefore, *413 since we find no prejudice to the defendant, we do not disturb the conviction.
III. Conclusion
For the reasons stated herein, we Affirm.