UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5660

DAVID SHOETAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-94-388)

Submitted: January 7, 1997

Decided: March 11, 1997

Before HALL and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stanley J. Reed, LERCH, EARLY & BREWER, CHTD., Bethesda,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Richard C. Kay, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David Shoetan appeals his conviction by a jury for possessing with
the intent to distribute heroin in violation of 21 U.S.C.A. § 841 (West
1994 & Supp. 1996). Shoetan does not dispute the evidence presented
by the Government.

Shoetan's defense was that the Government induced him to commit
the crime. He testified that the Government's confidential informant,
Remy Ogundeji, told him to pretend to be a drug dealer and supplied
him the fifty grams of heroin that he sold to an undercover detective.

Shoetan requested an entrapment instruction and the Government
objected to the instruction as submitted. The trial court found its own
instruction. Although neither party requested an instruction on reason-
able doubt, the trial court included a pattern instruction on reasonable
doubt. After a short period of deliberation, the jury requested clarifi-
cation of the entrapment instruction and the court reinstructed the jury
on entrapment. The jury returned a verdict of guilty.

At the scheduled sentencing hearing, replacement counsel entered
an appearance for Shoetan and the court granted a continuance to per-
mit the filing of a motion for a new trial. The basis for Shoetan's
motion was that the court erroneously instructed the jury on three
occasions and Shoetan's initial counsel was ineffective. After an evi-
dentiary hearing, the court denied the motion for a new trial. The
court sentenced Shoetan to forty-one months incarceration and five
years of supervised release. Shoetan timely appealed.

On appeal, Shoetan claims that the court erred in instructing the
jury as to: (1) reasonable doubt; (2) his entrapment defense; and (3)
his credibility as a witness; and (4) the trial court erred in denying his
motion for a new trial based on ineffective assistance of counsel.

                     2
Because Shoetan did not object to the jury instructions, the instruc-
tions are reviewed under the plain error standard. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). An
appeals court will not notice an error raised for the first time on
appeal unless (1) there is an error, (2) which is plain, (3) which affects
the substantial rights of the defendant, and (4) which must be cor-
rected to avoid a miscarriage of justice or damage to the "fairness,
integrity or public reputation of judicial proceedings." Id. at 736-37;
United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).

Shoetan claims that the court gave an improper jury instruction
defining reasonable doubt. Shoetan claims that the court's instruction
was defective because it: (1) made reference to what a "reasonable
person" would do; and (2) suggests that reasonable doubt "is not an
excuse to avoid performance of an unpleasant duty."

This court has held that instructions defining reasonable doubt are
generally disapproved, absent a request from the jury. United States
v. Reives, 15 F.3d 42, 44-46 (4th Cir. 1994); United States v. Love,
767 F.2d 1052, 1060 (4th Cir. 1985). However, in cases where an
instruction was given, we examine the instructions as a whole to
determine whether the instruction was "prejudicially misleading or
confusing." Reives, 15 F.3d at 45.

The United States Supreme Court has addressed, and upheld, the
validity of jury charges that include language attempting to define
reasonable doubt. In Victor v. Nebraska, 511 U.S. 1 (1994), the
Supreme Court reiterated its previous holding in Holland v. United
States, 348 U.S. 121, 140 (1954), that the Constitution does not
require that any particular form of words be used in advising the jury
of the government's burden of proof, so long as"`taken as a whole,
the instructions . . . correctly convey the concept of reasonable doubt
to the jury.'" Victor, 511 U.S. at 5 (quoting Holland, 348 U.S. at 140).
The Supreme Court upheld as constitutional jury instructions: (1)
which, taken as a whole, correctly conveyed the concept of reasonable
doubt; and (2) where there was no "reasonable likelihood" that the
jury understood the instructions to allow a conviction based on proof
insufficient to meet the standard set forth in In re Winship, 397 U.S.
358 (1970). Id. at 6 (citing Estelle v. McGuire, 502 U.S. 62, 72, and
n.4 (1991)); see Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994), cert.

                     3
denied, ___ U.S. ___, 63 U.S.L.W. 3860 (U.S. June 5, 1995) (No. 94-
8786).

Shoetan contends that the reasonable doubt instruction incorrectly
imposed an objective standard on the jury by referring to a "reason-
able person" standard. However, the reasonable doubt instruction
upheld by the Supreme Court in Victor, also made reference to a "rea-
sonable" person. Victor, 511 U.S. at 18.

Shoetan next challenges the reasonable instruction because it
includes the language that reasonable doubt "is not an excuse to avoid
performance of an unpleasant duty." Shoetan contends that this lan-
guage improperly implies that the jury has a "duty" to convict even
if they find it "unpleasant." This claim is meritless because the lan-
guage clearly does not imply that a jury has a duty to convict no mat-
ter what the evidence proves.

Viewed in its entirety, the reasonable doubt instruction in this case
correctly conveyed the concept of reasonable doubt, and there is no
reasonable likelihood that the jury misunderstood the instruction to
allow a conviction based on insufficient proof. See Victor, 511 U.S.
at 6; Reives, 13 F.3d at 45. Accordingly, we find that there was no
plain error in the district court's reasonable doubt instruction.

Next, Shoetan claims that the court's instruction as to his entrap-
ment defense was defective because it failed to: (1) identify the confi-
dential informant as a government agent legally capable of entrapping
him; and (2) inform the jury that the Government had the burden of
proving beyond a reasonable doubt that Shoetan was not induced by
the Government and that he was predisposed to commit the crime.

"[A] valid entrapment defense has two related elements: govern-
ment inducement of the crime, and lack of predisposition on the part
of the defendant to engage in the criminal conduct." Mathews v.
United States, 485 U.S. 58, 63 (1988). To establish inducement, the
defendant must introduce evidence of "excessive behavior on the part
of the government that could be said to be so inducive to a reasonably
firm person as likely to displace mens rea." United States v. DeVore,
423 F.2d 1069, 1072 (4th Cir. 1970). Evidence that government
agents provided only the opportunity to commit the crime and that the

                    4
defendant availed himself of that opportunity does not demonstrate
inducement. Mathews v. United States, 485 U.S. at 66. A fundamental
question regarding predisposition is whether the defendant possessed
the necessary state of mind to commit the crime when government
agents initially approached him. United States v. Blevins, 960 F.2d
1252, 1257-58 (4th Cir. 1992). Further, an entrapment defense cannot
succeed if the predisposition of the defendant is established. See
United States v. Akinseye, 802 F.2d 740, 743 (4th Cir. 1986).

Shoetan first contends that the court failed to inform the jury that
the confidential informant, Ogundeji, was acting as a government
agent capable of entrapping Shoetan. Thus, Shoetan contends, the jury
could have erroneously believed that the issue of predisposition was
to be determined from the time Shoetan was first introduced to the
police detective, rather than when he was initially contacted by
Ogundeji. Viewing the instruction in its entirety, it is clear from the
initial entrapment instruction that the court identified the confidential
informant and the special agent and then referred to them as "govern-
ment agents" throughout the entrapment instruction.

Shoetan also contends that the entrapment instruction entirely
omits any discussion as to which party has the burden of proof regard-
ing inducement or predisposition prior to Shoetan's initial contact
with Ogundeji. Again, viewing the entrapment instruction in its
entirety, the court instructed the jury that one of the elements of a
valid entrapment defense was that "the defendant was not ready and
willing to commit the crime before the government agents spoke with
him." The court further instructed the jury that"the government must
convince you beyond a reasonable doubt that the defendant was not
entrapped by government agents."

Viewed in its entirety, the entrapment instruction here correctly
conveyed the elements of an entrapment defense. See Mathews, 485
U.S. at 63. Accordingly, we find that there was no plain error in the
district court's entrapment instruction.

Lastly, Shoetan contends that the court improperly commented on
Shoetan's credibility by describing him as an "interested witness."
This Court has held that it is not improper for the district court, in
instructing the jury about defendant's credibility as a witness, to point

                     5
out defendant's vital interest in the outcome of the case. United States
v. Figurski, 545 F.2d 389, 392 (4th Cir. 1976). Accordingly, we find
that there was no plain error in the district court's instruction com-
menting on Shoetan's testimony.

Shoetan also contends that the district court abused its discretion
by denying his motion for a new trial based on the ineffective assis-
tance of his counsel. A claim of ineffective assistance, however, is not
properly raised on direct appeal unless the record conclusively dis-
closes that defense counsel was ineffective. United States v. Williams,
977 F.2d 866, 871 (4th Cir. 1992). The Government contends that the
district court treated Shoetan's motion for a new trial as a motion
under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effec-
tive Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,
and this Court should review Shoetan's ineffective assistance claim
as a habeas claim.

A review of the record, however, reveals that the district court con-
sidered Shoetan's ineffective assistance claim to determine only
whether the record conclusively established ineffective assistance of
counsel. The record shows that the district court did not conduct a
fullfledged habeas motion review. Further, a review of the record
does not conclusively disclose that Shoetan's counsel was ineffective.
Williams, 977 F.2d at 871.

Accordingly, we affirm Shoetan's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

                    6
