U.S.A v. Garcia

• Decision Date: 07 July 1999
• Docket Number: 98-2031,Nos. 98-2012,s. 98-2012
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. ELEUTERIO GARCIA, Defendant-Appellant/Cross-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1165

182 F.3d 1165 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. ELEUTERIO GARCIA, Defendant-Appellant/Cross-Appellee.

Nos. 98-2012, 98-2031

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 7, 1999

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-004 MV) [Copyrighted Material Omitted] John L. Sullivan, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Mexico (Mark H. Donatelli, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Mexico and Michael W. Lilley of Las Cruces, New Mexico, with him on the briefs), for Defendant-Appellant/Cross-Appellee.

Richard A. Friedman, Attorney, Appellate Section of Criminal Division of the Department of Justice, Washington, D.C. (John J. Kelly, United States Attorney for the District of New Mexico and Mick I.R. Gutierrez, Assistant United States Attorney for the District of New Mexico with

him on the brief) for Plaintiff-Appellee/Cross-Appellant.

Before PORFILIO, BALDOCK and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This appeal involves the defendant's challenge to the district court's denial of a motion for judgment of acquittal based on an entrapment defense and denial of motions for a new trial, as well as the government's cross-appeals on several sentencing issues. We affirm the district court's judgment, except for the district court's two-level reduction based on the minor participant provision of the Sentencing Guidelines, on which we reverse and remand.

On December 14, 1995, Defendant-Appellant/Cross-Appellee Eleuterio Garcia was arrested for trafficking cocaine, and was later charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1), (b)(1)(B), and 18 U.S.C. 2. At trial, his sole defense was that paid government informant Saul Horcasitas entrapped him. The jury returned a guilty verdict, and Garcia's post-trial motions for judgment of acquittal and for a new trial were denied.

At sentencing, the district court adjusted downward Garcia's base offense level by six levels, pursuant to the safety valve, acceptance of responsibility, and minor participant provisions of the Sentencing Guidelines. The district court then departed downward an additional seven levels, finding Garcia's commission of the crime to be a single act of aberrant behavior. In total, Garcia's offense level dropped from twenty-eight to fifteen, which, when combined with his criminal history category of I, established a guideline imprisonment range of eighteen to twenty-four months. Garcia was sentenced to eighteen months in prison. The government cross-appeals the downward departure, as well as the acceptance of responsibility and minor participant adjustments.

I. Entrapment as a Matter of Law

Garcia argues that he was entrapped as a matter of law, and that the district court thereby erred in denying his motion for judgment of acquittal. The denial of a motion for judgment of acquittal based on entrapment is reviewed de novo, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the government. See United States v. Lampley, 127 F.3d 1231, 1242 (10th Cir. 1997), cert. denied, 118 S. Ct. 1098 (1998).

"Entrapment exists as a matter of law only if the evidence of entrapment is uncontradicted. When a jury has found that no entrapment existed, we can alter that finding on legal grounds only 'where the holding should be made without choosing between conflicting witnesses nor judging credibility. . . . Accordingly, we review only whether sufficient evidence exists to support the jury's verdict.'" United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992) (quoting United States v. Dozal-Bencomo, 952 F.2d 1246, 1250 (10th Cir. 1991)) (citations omitted). Once the defense of entrapment is properly raised, the government has the burden of proving that the defendant was predisposed to commit the crime. United States v. Duran, 133 F.3d 1324, 1327 n.2 (10th Cir. 1998). The "entrapment defense has two parts: (1) the lawfulness of the government's conduct, and (2) the defendant's predisposition to engage in the criminal activity." Lampley, 127 F.3d at 1242. Garcia's claim of entrapment as a matter of law focuses on the second element, predisposition. Garcia contends that the government failed in its burden to prove that he was predisposed to commit a criminal act prior to being approached by the government. "Predisposition to commit a criminal act may be shown by evidence of similar prior illegal acts or it may be inferred from defendant's desire for profit, his eagerness to participate in the transaction, his ready response to the government's inducement offer, or his demonstrated knowledge or experience in the criminal activity." Duran, 133 F.3d at 1335 (internal quotations and citations omitted). As a result, although Jacobson v. United States, 503 U.S. 540, 549 (1992), requires that the defendant's predisposition be viewed at the time the government agent first approached the defendant, inferences about that predisposition may be drawn from events occurring after the two parties came into contact. See Duran, 133 F.3d at 1336 (finding sufficient evidence of predisposition where defendant, inter alia, "bragged" to the government informant "about being able to obtain drugs"); United States v. Mendoza-Salgado, 964 F.2d 993, 1003 (10th Cir. 1992) ("[Defendant's] solicitous telephone discussions with [the government agent] regarding defendant's ability to supply cocaine, his express interest in handling future drug purchases and his attendance at the preliminary meeting between [his supplier] and agents exemplifies a profound eagerness to engage in the illegal activity.").

We find there is sufficient evidence to prove that Garcia was predisposed to distribute narcotics. The government's paid informant, Saul Horcasitas, testified that three weeks after he moved into the trailer next door to Garcia, it was Garcia who first suggested to Horcasitas that he should sell cocaine. Additionally, Garcia's vocabulary and manner of dealing with Horcasitas demonstrates knowledge and experience in illicit drug trades. During two taped telephone conversations between Garcia and Horcasitas, Garcia demonstrated knowledge of the drug trade when he understood Horcasitas' use of code words. Horcasitas talked to Garcia in code, using phrases like "animals" (cocaine), "bundles" (kilograms), and "papers" (money), and Garcia had no problem understanding Horcasitas' lingo. In fact, Garcia even used code words, stating in one conversation that he wanted to look "at the papers to see if I like them, to see if they work on the roof." Police Officer Mike Mulliniks testified that such code is used by people "familiar with dealing in drugs," and it is not unreasonable for a jury to find that someone who understands such code is predisposed to deal drugs. See Mendoza-Salgado, 964 F.2d at 1003 ("'code words' to describe drugs and related matter further exemplifies . . . understanding of the narcotics trade").

Other evidence admitted at trial sufficiently establishes Garcia's predisposition. DEA Agent James Baker testified that the amount of cocaine involved in the transaction, 2.987 kilograms, is "consistent with more sophisticated operators." Moreover, Garcia had a conversation with Horcasitas in which Garcia refused to transport the cocaine from Las Cruces, New Mexico to Hatch, New Mexico. Garcia's refusal to transport the cocaine to Hatch from Las Cruces reasonably could be interpreted as evincing a sophisticated understanding of the risks of transporting drugs, because Border Patrol checkpoints are positioned between the two cities. Garcia also knew to ensure his security by insisting that the drug deal occur on his home turf; that the transaction be completed quickly at the time Garcia, not the buyers, demanded; and that the locations for the drug deal frequently change. Finally, Garcia was apparently experienced enough to maintain a cool, calm, and collected businesslike demeanor throughout the entire drug transaction.

Given this evidence, and all reasonable inferences which can be drawn in the government's favor, the district court did not abuse its discretion in denying the motion for judgment of acquittal. A jury reasonably could find that the nearly three kilogram cocaine deal involving Garcia resembled a sophisticated drug transaction that someone predisposed to drug trafficking would commit.

II. Motion for a New Trial

Garcia filed a motion for a new trial on the ground that the verdict was against the weight of the evidence with regard to his sole defense of entrapment. The district court denied the motion, and Garcia appeals, arguing that the district court totally failed to weigh any evidence. A district court's denial of a new trial based on the weight of the evidence is reviewed for abuse of discretion. United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994). Though the district court's reasoning could have been more explicit, the district court did not abuse its discretion.

A motion for new trial should be granted if, "after weighing the evidence and the credibility of the witnesses, the court determines that 'the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.'" United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir. 1996) (quoting Evans, 42 F.3d at 593). In its Memorandum Opinion and Order denying the motion, the district court stated that it "considered the briefs, testimony of witnesses and [was] otherwise fully informed," and it then concluded that the motion for new trial was "not well taken." The court laid out in detail the testimony of Horcasitas, Agent Baker, and Officer Mulliniks, and ultimately found this testimony to be "directly relevant to the question of inducement and contradictory to Mr. Garcia's testimony." The...