No, the recording is perfectly legal. The court said that wanting a lighter sentence is a good reason to cooperate, but it doesn't count as being forced. To be 'forced' (or 'coerced'), someone has to threaten you or do something else improper to break your free will. Wright chose to cooperate to help himself; nobody forced him. Also, you can't complain that your privacy was violated when you talk about illegal activities, because you're taking a risk that the person you're talking to might be recording you or telling the police.

No, the court did not make a mistake. The recordings were allowed because Wright agreed to make them. His agreement was valid, even if he hoped it would help his own case. Salisbury couldn't expect Wright to keep their talks private. The January 26 recording of Wright and Hall was allowed because they were partners in crime, and the court found enough other evidence that Salisbury was involved with them. The evidence about Salisbury trying to sell stolen tires before was important to show he was likely to sell stolen goods without being tricked into it, and this value was more important than any unfair influence it might have. The government can bring up past crimes to counter a claim of entrapment once the defendant suggests that defense.

<?xml version="1.0" encoding="utf-8"?> <opinion data-order="8" data-type="opinion" id="x999-1" type="majority"> <author id="b773-9"> VANCE, Circuit Judge: </author> Defendant Richard Salisbury appeals his conviction of selling a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2, 2313 and selling stolen property valued in excess of $5,000 in interstate commerce in violation of 18 U.S.C. §§ 2, 2315. <a class="footnote" href="#fn1" id="fn1_ref"> 1 </a> On appeal Salisbury urges three grounds for reversal. Finding no merit in any of his contentions, we affirm. In 1978 the Federal Bureau of Investigation (FBI) began to investigate the large number of truck hijackings in the four state area surrounding Chattanooga, Tennessee. In the course of this investigation the FBI relied on an informer named Charles Wright, who had agreed with the local prosecutor in Fort Payne, Alabama to work with the FBI in an unspecified manner in exchange for a recommendation of a reduced sentence on several burglary charges. <a class="footnote" href="#fn2" id="fn2_ref"> 2 </a> Wright pretended to represent a buyer of stolen goods, and thereby managed to ingratiate himself with Salisbury and his codefendants. On January 26, 1979 Wright received and recorded two telephone calls from Robbie Hall, one of Salisbury’s code-fendants. During the conversations Hall and Wright agreed upon the sale of a load of stolen carpeting to be consummated in Adairsville, Georgia later that night. At 1:00 a. m. on January 27 Wright and an undercover FBI agent met with Hall, Salisbury and a third codefendant and purchased the carpeting for $4,500. Wright recorded the entire transaction with a hidden body microphone. At trial the prosecution sought to admit these tapes into evidence. After holding a hearing outside the presence of the jury the district court admitted the recording of the conversations between Wright and Hall and the tape of the January 27 transaction. The district court also allowed limited testimony about a prior attempt by Salisbury to sell Wright a truckload of stolen tires. The jury convicted Salisbury and he was sentenced to a three year prison term for the stolen vehicle charge and a four year prison term for the stolen property charge, the sentences to run consecutively. Salisbury first argues that the admission of the tape recordings of the telephone conversations and subsequent transaction violated 18 U.S.C. §§ 2511(2)(c), 2515 and the fourth amendment. Section 2515 mandates the suppression of any evidence gathered in contravention of section 2511, which makes it illegal to intercept any wire or oral communication, absent certain exceptions. This case is clearly covered by the exception set out in section 2511(2)(c), which provides that <blockquote id="b773-16"> It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to *740 the communication has given prior consent to such interception. </blockquote> As Salisbury does not dispute that Wright was acting under color of law the only issue presented is whether Wright consented to record the disputed conversations. Relying on United States v. Laughlin, 222 F.Supp. 264 (D.D.C.1963), Salisbury vigorously contends that Wright’s consent was coerced because Wright was under indictment in Alabama and “had no viable choice but to cooperate” with the prosecutor’s plea offer. Salisbury, however, has a mistaken notion of involuntariness. Unless he could demonstrate that Wright’s will was “overcome by threats or improper inducement amounting to coercion or duress,” United States v. Silva, 449 F.2d 145, 146 (1st Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 942, 30 L.Ed.2d 787 (1972), Wright’s consent was not involuntary for purposes of section 2511(2)(c). Wright may have hoped to benefit from his decision to cooperate with the government, but his free will was not overborne merely because his motive was self-serving. See United States v. Juarez, 573 F.2d 267, 278 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978); United States v. Osser, 483 F.2d 727, 730 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 221 (1973). Salisbury failed in his attempt to show that Wright’s consent was involuntary. The tape recordings therefore fall within the statutory exception to the rule forbidding electronic surveillance. Salisbury’s argument that the surveillance violated his rights under the fourth amendment is spurious. An individual has no legitimate expectation that the person to whom he is speaking will not relate the conversation to the legal authorities. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). That rule applies with equal force to the recording of a conversation as to the repetition of one. United States v. White, 401 U.S. 745, 749-51, 91 S.Ct. 1122, 1124-25, 28 L.Ed.2d 453 (1971) (plurality opinion); accord, United States v. Caceres, 440 U.S. 741, 750-51, 99 S.Ct. 1465, 1470-71, 59 L.Ed.2d 733 (1979); Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963). Salisbury also argues that the tape of the January 26 conversations between Wright and Hall was inadmissible hearsay. Federal Rule of Evidence 801(d)(2)(E), however, states that coconspirator statements made during the course and in furtherance of a conspiracy do not constitute hearsay. Thus, if Hall and Salisbury were conspirators the tape recording was properly admitted into evidence. This issue is governed by our decision in United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Statements of a coconspirator may be introduced into evidence even though the government has not charged Salisbury with conspiracy as long as the existence of the conspiracy has been properly established. United States v. Freeman, 619 F.2d 1112, 1123 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). At trial the district court held a James hearing outside of the jury’s presence and determined that there was sufficient independent evidence of a conspiracy. We find no error in this finding. The evidence of Salisbury’s involvement in the actual sale of the carpet and his false exculpatory statements to FBI agents provided the requisite independent evidence of Salisbury’s participation in a conspiracy. Finally, Salisbury argues that the introduction of extrinsic offense evidence constituted reversible error under Federal Rules of Evidence 403 <a class="footnote" href="#fn3" id="fn3_ref"> 3 </a> and 404(b). <a class="footnote" href="#fn4" id="fn4_ref"> 4 </a> To *741 determine whether extrinsic offense, evidence was properly admitted, we must apply the two-part test enunciated in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403.” Id. at 911 (footnote omitted). Although the government normally may not introduce evidence of a defendant’s predisposition to engage in criminal activity in its case in chief, it may do so “once a defendant submits some evidence which raises the possibility that he was induced to commit the crime.” United States v. Mack, 643 F.2d 1119, 1121 (5th Cir. 1981). The introduction of evidence of extrinsic offenses is a reliable method of proving the criminal predisposition needed to rebut the allegation or inference of entrapment. United States v. Jones, 473 F.2d 293, 294-95 (5th Cir.), cert. denied, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961 (1973). In the present case Salisbury raised the issue of entrapment at trial and received jury instructions to that effect. As the evidence adduced was not designed to demonstrate bad character, but was offered to show the predisposition necessary to rebut Salisbury’s allegations of entrapment, the first prong of Beechum has been satisfied. The second prong of Beechum has also been met because the prejudicial nature of the evidence did not substantially outweigh its probative value. The evidence was squarely on point as to Salisbury’s criminal predisposition. There was little in the way of unfair prejudice to counterbalance the probative value of the evidence. The evidence was not of such a heinous nature as to incite the jury to make an irrational decision, see United States v. McMahon, 592 F.2d 871, 876 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979), nor was the prior offense so irrelevant “as to lack probative force as to the offense charged and hence to invite punishment of the defendant because he is, for reasons other than the offense charged, one socially undesirable.” United States v. McKinney, 429 F.2d 1019, 1032 (Godbold, J., dissenting), rev’d on rehearing, 434 F.2d 831 (5th Cir. 1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). Finally, the testimony adduced was not so detailed in its description of the prior offenses that a jury would equate the prior offense with that charged. Finding nothing in the record to indicate that the trial court incorrectly applied the Beechum test, we affirm its decision allowing this evidence into trial. AFFIRMED. <div class="footnotes"><div class="footnote" id="fn1" label="1"> <a class="footnote" href="#fn1_ref"> 1 </a> . Salisbury was also indicted for transporting a stolen vehicle in interstate commerce in violation of 18 U.S.C. §§ 2, 2312 and transporting stolen merchandise worth over $5,000 in interstate commerce in violation of 18 U.S.C. §§ 2, 2314. He was acquitted on both of these counts. </div><div class="footnote" id="fn2" label="2"> <a class="footnote" href="#fn2_ref"> 2 </a> . Wright was also under indictment for burglary in Huntsville, Alabama. His involvement with the FBI, however, had no bearing on the disposition of those charges. He eventually was convicted in Huntsville and received a four year sentence. </div><div class="footnote" id="fn3" label="3"> <a class="footnote" href="#fn3_ref"> 3 </a> . Federal Rule of Evidence 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. </div><div class="footnote" id="fn4" label="4"> <a class="footnote" href="#fn4_ref"> 4 </a> . Federal Rule of Evidence 404(b) states: Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in *741 order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. </div></div></opinion>

Introduction of extrinsic evidence is a reliable method for showing the criminal predisposition necessary to rebut any allegation of entrapment.

Although the government normally may not introduce evidence of a defendant's predisposition to engage in criminal activity in its case in chief, it may do so once a defendant submits some evidence which raises the possibility that he was induced to commit the crime. "(marks and citation omitted

—allowing evidence of a defendant's former attempt to sell stolen tires to rebut his defense of entrapment in selling stolen cars

Statements of a coconspirator may be introduced into evidence even though the government has not charged [the coconspirator] with conspiracy as long as the existence of the conspiracy has been properly established

The difficulty here is that the trial court admitted the totality of the government's anti-entrapment evidence before Gomez had uttered a single word to the jury suggesting entrapment or introduced any evidence suggesting entrapment.

By asserting an entrapment defense, Mendez Maradiaga placed his predisposition to commit drug offenses at issue and allowed the government to offer evidence that would establish that predisposition.

—the court held that a party to a conversation has no legitimate expectation that an-other party to the conversation will not record the conversation or reveal its contents to authorities.

When no conspiracy is charged, the coincidence factor vanishes and the exception does not require that a conspiracy be charged.

Nevertheless, the court held that the private detective was acting under color of law when he recorded the conversations.

No. An informant's consent is not rendered involuntary simply because it was motivated by a self-serving desire to receive a benefit, such as a reduced sentence. The wiretap statutes require suppression only if the informant’s consent was involuntary, which occurs when their will is “overcome by threats or improper inducement amounting to coercion or duress.” Here, Salisbury failed to show that Wright’s will was overborne; Wright may have hoped for a benefit, but he was not coerced. The recordings are therefore admissible under the statutory exception for communications intercepted with the prior consent of one party. Furthermore, the surveillance did not violate the Fourth Amendment, as an individual has no legitimate expectation of privacy in a conversation that the other party may choose to record or report to authorities.

No, the district court did not err. The tape recordings were admissible under the statutory exception in 18 U.S.C. § 2511(2)(c) because Wright consented to the recording. His consent was not involuntary, as his free will was not overborne, even if he hoped to benefit by cooperating. Salisbury had no legitimate expectation of privacy in his conversations with Wright under the Fourth Amendment. The January 26 recording of Wright and Hall was not hearsay because it was a co-conspirator statement under Federal Rule of Evidence 801(d)(2)(E), and the district court properly found sufficient independent evidence of a conspiracy involving Salisbury. The extrinsic offense evidence of Salisbury's prior attempt to sell stolen tires was relevant to show his predisposition to rebut his entrapment defense, and its probative value was not substantially outweighed by unfair prejudice under Federal Rules of Evidence 403 and 404(b). The government may introduce predisposition evidence once the defendant raises the possibility of entrapment.

United States of America v. Richard Harding Salisbury

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