U.S. v. Sandoval-Mendoza

• Citation: 472 F.3d 645
• Decision Date: 27 December 2006
• Docket Number: No. 04-10118.,04-10118.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo SANDOVAL-MENDOZA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

472 F.3d 645

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo SANDOVAL-MENDOZA, Defendant-Appellant.

No. 04-10118.

United States Court of Appeals, Ninth Circuit.

Argued April 12, 2005.

Submitted August 3, 2005.

Filed December 27, 2006.

Marc J. Zilversmit, San Francisco, CA, for appellant Eduardo Sandoval-Mendoza.

Erika R. Frick, Assistant U.S. Attorney, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CR-01-40201-SBA-1.

Before ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN, and ANDREW J. KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge.

This drug conspiracy case presents two principal issues. The first is whether the district court erred in ordering defense counsel not to talk to his client during an overnight recess. The second is whether the district court abused its discretion in excluding expert testimony about the defendant's subnormal intelligence. We reverse.

FACTS

Twin brothers, Eduardo and Ricardo Sandoval-Mendoza, were convicted of conspiring to sell methamphetamine. Eduardo Sandoval-Mendoza sold the drugs. He argues that the government entrapped him as a matter of law. He also argues that the district court erroneously excluded medical evidence of an enormous brain tumor that made him especially vulnerable to entrapment. Ricardo Sandoval-Mendoza argues that the government presented insufficient evidence to convict him. We treat Ricardo Sandoval-Mendoza's appeal separately in an unpublished disposition.

A family friend named "Marcos" introduced Eduardo Sandoval-Mendoza to "Tony" in February of 2000. Marcos and Tony were government informants. Sandoval-Mendoza sold them about 12 pounds of methamphetamine in three separate deals.

Sandoval-Mendoza testified. He admitted selling the drugs, but claimed the government entrapped him. He claimed the government informants knew a large brain tumor rendered him especially susceptible to suggestion and preyed upon his weakness. The tumor was diagnosed in 1992, eight years before the methamphetamine sales. At first, Sandoval-Mendoza took medication to shrink the tumor, but quit because of the side effects. He resumed only when his doctor told him the tumor would kill him without the medicine.

Sandoval-Mendoza was depressed. He was worried about dying and about providing for his wife and five children. And he was worried about the impotence his tumor caused. He talked about his problems with Marcos, his sister's boyfriend. Sandoval-Mendoza testified that Marcos told him he made $5,000 to $10,000 a week selling drugs. Marcos and Tony suggested that Sandoval-Mendoza sell drugs to make some money to support his family after he died.

Sandoval-Mendoza testified that he refused to sell drugs for several months, lacking both the experience and the inclination. But eventually he caved in, making three sales to Marcos and Tony. He testified that he sold them drugs only because they used his depression and fear to persuade him, and that he never sold drugs to anyone else.

Sandoval-Mendoza's account is not entirely credible. On wiretap recordings he sounds suspiciously like an experienced drug dealer, not a neophyte. He testified that a relative, a fugitive drug dealer in Mexico, told him what to say and how to portray himself. This relative also connected him with suppliers in Los Angeles.

Neither of the government informants took the stand to contradict Sandoval-Mendoza's entrapment defense or offer an alternative explanation. Tapes of their conversations with Sandoval-Mendoza came into evidence, but the government did not put them on the stand. And the informants had an incentive to entrap Sandoval-Mendoza. The government paid them money for their assistance as well as offering benefits in their own criminal cases.

To bolster his entrapment defense, Sandoval-Mendoza sought to introduce expert testimony explaining that his large brain tumor damaged his intelligence, memory, and judgment, making him especially susceptible to suggestion. Sandoval-Mendoza's lawyer's theme for the jury was "thou shalt not put a stumbling block before the blind."¹ His defense theory was that the government improperly induced a sick and suggestible man to sell drugs.

The district court admitted some evidence in support of Sandoval-Mendoza's defense, permitting his sister and ex-wife to testify that his tumor made him forgetful. But it excluded all the defense expert testimony. The defense had a neuropsychologist and a neurologist ready to testify that the brain tumor did indeed impair Eduardo's intellect and judgment. After an in camera Daubert² hearing, the district court excluded the expert testimony, partly because it did not demonstrate the tumor caused suggestibility and partly because it would be long and confusing. Sandoval-Mendoza argues that this error requires reversal.

The government cross examined Sandoval-Mendoza over the course of two days, spanning a morning recess, a lunch recess, an overnight recess, and another recess on the second day. The district court ordered Sandoval-Mendoza and his lawyer not to communicate with each other during the recesses regarding Sandoval-Mendoza's testimony, including the overnight recess. The district court allowed communication on other matters, "just not concerning his testimony." Once cross examination was over, the prohibition was lifted.

Sandoval-Mendoza was convicted and sentenced to 235 months. He appeals, claiming entrapment as a matter of law, error in excluding his expert witnesses' testimony, error in limiting his consultation with counsel, and error on other grounds.

ANALYSIS

I. Entrapment.

The jury instruction required the government to prove beyond a reasonable doubt that Sandoval-Mendoza was not entrapped. The jury decided that Sandoval-Mendoza was not entrapped. But Sandoval-Mendoza argues that he was entrapped as a matter of law. We review de novo.³ We "will not disturb the jury's finding unless, viewing the evidence in the government's favor, no reasonable jury could have concluded that the government disproved the elements of the entrapment defense."⁴

Entrapment has two elements: "government inducement of the crime and the absence of predisposition on the part of the defendant."⁵ Inducement is "any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense."⁶ We assume Sandoval-Mendoza proved inducement because the government did not dispute that its informants proposed the drug sales.

Even so, Sandoval-Mendoza does not establish absence of predisposition as a matter of law. "Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."⁷ The government presented evidence Sandoval-Mendoza was predisposed to sell drugs, including wiretap recordings of him talking as though he were an experienced drug dealer. Offering to buy drugs from a drug dealer is not entrapment, even if the government "sets the dealer up" by providing an informant pretending to be a customer, because the dealer is already predisposed to sell.⁸

In order to prove he was entrapped as a matter of law, Sandoval-Mendoza must "point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent."⁹ He argues that his testimony that he resisted the pressure to sell drugs to the government informants and never sold drugs to anyone else was undisputed because he testified and the informants did not. But the jury did not have to believe Sandoval-Mendoza. Uncontradicted testimony is not necessarily undisputed evidence.¹⁰ Jurors may reject uncontradicted testimony when cross examination, other evidence, or their own common sense and ordinary experience convince them the testimony is probably false. "Even perfectly plausible allegations can be disbelieved if they occur during the course of a generally implausible account."¹¹ The wiretap recordings in which Sandoval-Mendoza pretended to be or really was an experienced drug dealer belie his testimony. The jury could have believed Sandoval-Mendoza's drug dealer relative coached him and he was just pretending. But it didn't have to.

The jury could have found that Sandoval-Mendoza was entrapped. But its conclusion to the contrary was supported by enough evidence to meet the Jackson¹² standard. This is not a case like Jacobson,¹³ where the government failed to present any evidence of predisposition at all. Entrapment was properly left to the jury.

II. The order limiting attorney-client-discussion.

Sandoval-Mendoza testified over the course of three days. The government's cross examination spanned a morning recess, a lunch recess, an overnight recess, and another morning recess the following day. The district court instructed Sandoval-Mendoza and his lawyer not to discuss his testimony during any of the recesses, but permitted them to discuss anything else. Sandoval-Mendoza's lawyer objected and was overruled. When the cross examination ended, the district court permitted Sandoval-Mendoza and his lawyer to discuss his testimony before redirect.

Sandoval-Mendoza argues that the district court's order prohibiting him from discussing his testimony with his lawyer during the recesses amounted to a structural error under Geders v. United States¹⁴ and Perry v. Leeke.¹⁵ Perry and Geders reach opposite conclusions based on different facts. In Geders, the trial court prohibited all communication between the defendant and his lawyer during an overnight recess between direct and cross examination. The Supreme Court held that this prohibition required reversal because it deprived ...