U.S. v. Rogers

• Citation: 102 F.3d 641
• Decision Date: 31 July 1996
• Docket Number: No. 95-2313,95-2313
• Parties: UNITED STATES of America, Appellee, v. Chadwick ROGERS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 641

102 F.3d 641

UNITED STATES of America, Appellee, v. Chadwick ROGERS, Defendant, Appellant.

No. 95-2313.

United States Court of Appeals, First Circuit.

Heard July 31, 1996.

Decided Dec. 23, 1996.

David Michael with whom J. Tony Serra, James Bustamante and Serra, Lichter, Daar, Bustamante & Michael, San Francisco, CA, were on briefs for appellant.

Patrick M. Hamilton, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and William F. Sinnott, Assistant United States Attorney, were on brief for the United States.

Before SELYA and BOUDIN, Circuit Judges, and McAULIFFE, ^* District Judge.

BOUDIN, Circuit Judge.

Chadwick Rogers was convicted of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1), and certain of his property was ordered forfeited pursuant to 21 U.S.C. § 853. Rogers appeals, contesting both the conviction and forfeitures. We set forth a summary of salient events, deferring certain details pertinent to specific issues.

In May 1992, Michael Cunniff, an undercover agent of the Drug Enforcement Administration, was introduced to Howard Oberlander in Danvers, Massachusetts. Oberlander told Cunniff that he was interested in purchasing 500 pounds of Thai marijuana with the assistance of another individual (who later turned out to be Rogers). During this meeting, Oberlander telephoned Rogers twice, and Rogers agreed to a meeting near Rogers' ranch in California, north of San Francisco, to arrange the purchase.

Several days later, Oberlander gave Cunniff $20,000 as a good faith down payment. Then, on June 18, 1992, both men met Rogers in California at a neutral location. Rogers told Cunniff that he had not traded "this kind of product" recently because of the risk of sting operations. Rogers said that he had an underground storage site at his ranch for concealing the marijuana and invited Cunniff to see the ranch.

At Rogers' ranch, Rogers gave Cunniff a tour of the premises. Rogers asked Cunniff to provide some of the marijuana on credit, offering as collateral gold, a diamond, and the title to a motor home parked on the property. Oberlander gave Rogers a small sample of the marijuana that Cunniff had earlier provided to Oberlander. The meeting ended without a final agreement between Rogers and Cunniff on the terms of the sale.

On the following day, Oberlander and Cunniff returned to Rogers' ranch. Rogers agreed to the terms of the sale to complete the transaction. Those terms, discussed in intervening telephone calls, were that Cunniff would "front" the entire 500-pound shipment of marijuana in return for the collateral that Rogers had offered. But during this second visit, Rogers noticed an airplane circling over the ranch and told Oberlander and Cunniff to leave for dinner and return later that evening.

The airplane was a DEA surveillance plane, which followed Cunniff's car as he and Oberlander drove away from the ranch. From a gas station, Oberlander telephoned Rogers, who said that the plane had followed Cunniff's car and that law enforcement agents had probably planted a tracking device in the car. Rogers told Oberlander that he did not want to complete the transaction, that Oberlander and Cunniff should leave town and (according to Rogers' testimony) that Rogers never wanted to see them again.

Cunniff then met with surveillance agents and had Oberlander arrested. Cunniff and more than two dozen DEA and local agents returned to Rogers' ranch and arrested Rogers pursuant to a federal arrest warrant. Earlier that day, agents had also obtained a search warrant authorizing the seizure of property intended to be used to commit federal drug offenses. Pursuant to this search warrant, the agents searched Rogers' ranch and discovered the hidden underground bunker.

During the search, agents pressed Rogers to cooperate, although he had said that he wished to remain silent. After being held at his ranch in handcuffs for over two hours, Rogers revealed the location of a hidden floor safe, built underneath a desk in his library. The agents opened the safe, which contained currency, a large diamond ring, and gold Krugerrands worth about $5,000.

After a jury trial, Rogers was convicted of conspiracy to possess marijuana with intent to distribute. The jury then considered the forfeiture count in a bifurcated hearing, and in accord with the jury's special verdict the following property was forfeited: Rogers' ranch and adjoining real property, the motor home, a dozen gold Kruggerands, and the diamond. The judge imposed a sentence of 90 months imprisonment and a $12,500 fine. Rogers now appeals both the conviction and sentence.

1. Rogers' first claim, addressed to his convictions, rests on the premise that he withdrew from the conspiracy by telling Cunniff and Oberlander to leave town and not contact him again. His own unrebutted testimony, Rogers says, required the district court to grant his motion to dismiss under Fed.R.Crim.P. 29, and, alternatively, supported Rogers' request for an instruction to the jury that withdrawal from the conspiracy constituted an affirmative defense to the charge. The district court had refused both applications.

In addition to procedural objections, the government protests that the evidence does not come close to establishing a bona fide withdrawal from the conspiracy. Rogers, it says, was merely deferring efforts to transfer the drugs or was feigning withdrawal. Still, if Rogers' testimony were believed by the jury, the jury might find a withdrawal by Rogers grounded in "a communication by the accused to his coconspirators that he has abandoned the enterprise and its goals." United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir.1987).

But withdrawal is not a defense to a conspiracy charge if the conspiracy violation has already occurred. "The traditional rule here 'is strict and inflexible: since the crime is complete with the agreement, no subsequent action can exonerate the conspirator of that crime.' " 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.5 (1986) (quoting ALI, Model Penal Code § 5.03, comment at 457 (1985)). See, e.g., United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir.), cert. denied, 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 421 (1994). Some statutes require an overt act, but section 846 does not. See United States v. Shabani, 513 U.S. 10, ----, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994).

True, withdrawal may carry a variety of advantages for a defendant. It may insulate him from Pinkerton liability for substantive crimes of others that occur after his withdrawal. United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir.1992). It can prevent admission against him of statements by coconspirators made after this point. E.g., United States v. Abou-Saada, 785 F.2d 1, 8 (1st Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3283, 91 L.Ed.2d 572 (1986). It will normally start the running of the statute of limitations. E.g., United States v. Sax, 39 F.3d 1380, 1386 (7th Cir.1994). But none of these rubrics applies in this case.

Rogers contends that two of our earlier decisions--United States v. Piva, 870 F.2d 753 (1st Cir.1989), and United States v. Dyer, 821 F.2d 35 (1st Cir.1987)--create an exception in the First Circuit to the usual conspiracy rules. These cases, he says, make withdrawal an affirmative defense even if the conspiratorial agreement has already been made. And he urges that recognizing such a defense serves public policy by encouraging withdrawal from conspiracies.

We agree with Rogers that Dyer and Piva contain some ambiguities. But neither case offers a square holding in Rogers' favor, and such a holding would be flatly inconsistent with the settled view that a conspiratorial agreement is itself a punishable act because of the dangers created by such a criminal enterprise. United States v. Moran, 984 F.2d 1299, 1302-03 (1st Cir.1993). If there has been a misunderstanding, it is now resolved.

2. Rogers claims that the district court erred in refusing to give the jury an instruction on entrapment. A defendant is entitled to such an instruction if the evidence, viewed in the light most favorable to the defendant, would "create a reasonable doubt as to whether government actors induced the defendant to perform a criminal act that he was not predisposed to commit." United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir.1988). This elliptical summary condenses two different matters--one of substance and the other of proof.

The first substantive element of an entrapment claim is made out where a government agent exerts undue pressure or inducement to persuade the defendant to commit the crime. United States v. Acosta, 67 F.3d 334, 337 (1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 965, 133 L.Ed.2d 887 (1996); United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir.), cert. denied, 513 U.S. 1051, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994). In addition, even undue pressure or inducement is irrelevant where the defendant was already predisposed to commit the crime. Thus, lack of predisposition is the second substantive element of entrapment. Gendron, 18 F.3d at 962.

As to proof, the defendant must make a threshold showing in order to raise the entrapment issue; after that, the burden shifts to the government to negate entrapment by proving, beyond a reasonable doubt, that no improper pressure or inducement was used or that the defendant was predisposed to commit the offense. Acosta, 67 F.3d at 338. But entrapment may not be argued, nor is any instruction required, unless the defendant points to evidence that, if believed by the jury, would permit such a reasonable doubt on both elements. Rodriguez, 858 F.2d at 814.

In this case, when Rogers asked for an entrapment instruction, the district court after the close of the evidence ruled that there was enough evidence to permit the jury to have a reasonable doubt as to Rogers' predisposition. This...