Thomas

The question in this case is whether, when predisposition to commit an offense is at issue, a defendant may introduce evidence concerning his record of past acts or whether only the government is free to introduce such evidence. In entrapment cases, it is in the defendant’s interest to seek to establish that his past record is that of a model citizen, while it is in the prosecution’s to show that long before a government agent ever approached him, the person on trial regularly *977 engaged in conduct similar to that charged in the indictment.

The defendant on this appeal, Bourne Bobby Thomas, was retried on one count of conspiracy to possess methamphetamine with intent to distribute and one count of aiding and abetting possession of methamphetamine with intent to distribute. He had been convicted on both counts in his first trial, but that conviction was overturned on an earlier appeal in an unpublished memorandum disposition, on the ground that the district court erred in faffing to give an instruction on the defense of entrapment. On retrial, Thomas was again convicted on both counts and was sentenced to 151 months in prison. He now appeals on the ground that the district court…

dissenting:

I write to express my disagreement with the majority’s decision to reverse the district court on this evidentiary issue. Because the majority concludes that a new trial is required, it did not address Thomas’ other *981 substantial challenges to his conviction and sentence; I assume that if he is again convicted, he may renew those challenges in a subsequent appeal.

The majority elects to tackle the hard issue left unresolved in United States v. Barry, 814 F.2d 1400 (9th Cir.1987), namely whether, for purposes of an entrapment defense, a defendant has a right to introduce “good character” evidence. We did not reach that issue in Barry because we determined that the proffered evidence was not relevant. I contend that the same is true in this case. Accordingly, I would not decide whether Thomas’ evidence is admissible under either Rule 404(b) or Rule 405(b).

The majority believes that Thomas’ proffered evidence that he had no prior criminal or arrest record is relevant “because it would tend to make it more probable that the person had not previously engaged in criminal conduct.” Thomas admitted to the jury, however, that he is a drug user and a drug seller. I do not…