U.S. v. Gomez-Rojas

• Citation: 507 F.2d 1213
• Decision Date: 10 February 1975
• Docket Number: No. 74-1914,GOMEZ-ROJAS,74-1914
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto, and Michael Rece Sutherlin, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1213

507 F.2d 1213

UNITED STATES of America, Plaintiff-Appellee, v. Roberto GOMEZ-ROJAS, and Michael Rece Sutherlin Defendants-Appellants.

No. 74-1914.

United States Court of Appeals, Fifth Circuit.

Feb. 10, 1975, Rehearing Denied March 26, 1975.

Clarence D. Moyers, Gus Rallis, El Paso, Tex., for Sutherlin and rojas.

William S. Sessions, U.S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellants Sutherlin and Gomez-Rojas were each convicted by a jury on March 13, 1974, of conspiracy to possess 300 pounds of marihuana with intent to distribute that substance, and of knowingly and intentionally possessing that same marihuana with intent to distribute it, in violation of 21 U.S.C. 846 and 841(a)(1). Although the trial court originally sentenced each appellant to two consecutive five-year terms in prison, with five years special parole, the sentences were later modified to require Sutherlin and Gomez-Rojas to serve the two five-year terms concurrently, with five more years of special parole. Sutherlin and Gomez-Rojas complain of various errors in their joint trial. After a careful study of the record, we conclude that Sutherlin's conviction must be reversed, but that the jury's verdict must stand as to Gomez-Rojas.

On the morning of November 12, 1973, Special Agent DeHoyos of the Drug Enforcement Administration received a telephone call from a confidential informant, advising DeHoyos that certain individuals at an El Paso, Texas, bar desired to sell a quantity of marihuana for $22,500. At DeHoyos' request, one George Smith arranged a meeting on the afternoon of the 12th at a local motel room between DeHoyos, who was posing as a prospective buyer, and Sutherlin, the purported purveyor of contraband. When DeHoyos balked at the price Sutherlin demanded for the marihuana, Sutherlin rejoined that he had no control over the price: 'I just set up deals for my man and he takes care of the prices and delivers it.' At this point, DeHoyos and Sutherlin adjourned to Smith's automobile, where DeHoyos showed Sutherlin the color of his money; the pair then walked over to Sutherlin's truck, from which Sutherlin removed a kilo of marihuana which he claimed was identical in quality to that which he was offering for sale. Sutherlin and the federal agent then proceeded to a public phone, where Sutherlin made a call to an unknown party, hung up quickly, as 'his man could not talk then' and would call back, and shortly thereafter answered a call from an unknown party at the same phone. Sutherlin then advised DeHoyos that the deal could go through, but that there were certain procedural difficulties to be resolved first. At that point Sutherlin left, after arranging to meet DeHoyos later that evening at a neighborhood restaurant.

When the appointed time came, Sutherlin and DeHoyos shared coffee and idle conversation until they noticed Gomez-Rojas drive into the restaurant parking lot. Sutherlin remarked, 'that is my man,' went out to talk to Gomez-Rojas for several minutes and returned to tell DeHoyos to have George Smith rent a car for the purpose of transporting the marihuana. When Smith arrived with the rental car, Sutherlin told DeHoyos that his supplier would take the car to a warehouse, load it with the marihuana and deliver the vehicle to a prearranged location. Gomez-Rojas, who had left in the interim, returned to the restaurant parking lot and had another private conversation with Sutherlin. Acting on instructions from Sutherlin, DeHoyos drove the rental car to a parking lot adjacent to the Rudolph Chevrolet dealership; Sutherlin then dropped off DeHoyos and Smith at a motel to await developments.

Soon thereafter, Gomez-Rojas drove into the lot where DeHoyos' rental car was parked, left his automobile and drove the rental car next door to Rudolph Chevrolet, where another, unidentified individual in a Cadillac traded vehicles with Gomez-Rojas and drove the rented car to an undiscovered location, evading a number of federal agents along the way. Sutherlin and DeHoyos met again an hour later and drove in separate vehicles to the parking lot of a motel, where the rental car was discovered, its trunk loaded with 300 pounds of marihuana. Sutherlin was arrested on the spot and Gomez-Rojas was arrested while in his parked car 100 feet away in the same parking lot.

At trial, Sutherlin took the stand and admitted most of the comings and goings related above; he contended, however, that George Smith was the villain of the piece and that he, Sutherlin, was entrapped. Smith, according to Sutherlin, was a friend who took advantage of Sutherlin's unhappy financial situation to induce an otherwise innocent citizen to aid him in an illicit business transaction with DeHoyos, whom Smith represented as a marihuana dealer from Albuquerque. Sutherlin alleged that Smith is a paid informer and a Government agent, and that Smith was the source of the marihuana which was found in the trunk of the rental car, so that we are faced with the sordid spectacle of the Government selling marihuana to itself. Sutherlin also claimed that Gomez-Rojas was an innocent bystander who happened to appear in the wrong place at the wrong time. Gomez-Rojas, who works as a salesman at Rudolph Chevrolet, agreed with Sutherlin's account and, unlike Sutherlin, denied any knowledge of the marihuana transaction.

i. Sutherlin

A.

Sutherlin's sole defense was entrapment, and his intention to demonstrate the truth of this theory at trial was wellknown to the district judge before the trial began. In order to establish his defense, Sutherlin subpoenaed George Smith to testify as his witness on the subject of entrapment. On the day the trial began, however, Smith apprised the trial judge, out of the presence of the jury and before any testimony was heard, of his intention to assert his Fifth Amendment right against self-incrimination if called as a witness. ¹ In spite of Sutherlin's protests, the district court excused Smith without the slightest inquiry into the legitimacy or the scope of his proposed refusal to testify. Furthermore, the court forbade Sutherlin to place Smith on the stand for the purpose of eliciting a recitation of his name, his address and the Fifth Amendment to the United States Constitution. Thus, at a stroke, Sutherlin was denied the opportunity to examine the individual who, save himself, could testify most thoroughly about the alleged entrapment. Sutherlin argues that this was error. Sutherlin's complaint involves a complex interplay between the law of entrapment, the informer's privilege and Smith's Fifth Amendment right against self-incrimination. We will discuss each factor of the triad in turn.

The United States Supreme Court first recognized and applied the entrapment defense in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. In Sorrells, Chief Justice Hughes ruled for the Court that as a matter of statutory construction, the entrapment defense prohibits Government officials from instigating a criminal act by persons 'otherwise innocent in order to lure them to its commission and to punish them,' 287 U.S. at 448, 53 S.Ct. at 215, 77 L.Ed. at 413, reasoning that Congress passes criminal statutes to deter crime rather than to encourage it. In 1958, in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and again in 1973, in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, ² the Court reaffirmed the principle set out in Sorrells: that 'entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials.' Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851. Thus, the entrapment defense turns on the intent or predisposition of the defendant to commit the crime. In 1971, in United States v. Bueno, 5 Cir. 1971, 447 F.2d 903, this Court ruled that the Sorrells notion of entrapment must apply as a matter of law where a defendant is charged with dealing in contraband where the contraband in question was supplied to and purchased from the defendant by Government officers or paid informers. ³ If the supplier is a paid informer, the defense is available even if the informer entrapped the defendant on his own initiative, and regardless of whether any Government officer knows the source of the contraband. United States v. Bueno, supra. See United States v. Mosley, 5 Cir. 1974, 496 F.2d 1012 and United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161.

Once the defendant presents a prima facie case of entrapment indicating that Government conduct created 'a substantial risk that the offense would be committed by a person other than one ready to commit it,' Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, 168, the burden shifts to the Government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged against him. United States v. Mosley, supra. Correspondingly, if the defendant establishes a prima facie case of a transaction of the Bueno variety, then the Government must prove beyond a reasonable doubt that the objective facts necessary to a Bueno defense did not occur. Once the Government comes forward with evidence that the defendant was not entrapped, then the case may go to the jury. United States v. Oquendo, supra.

In an ordinary entrapment case, the Government will seek to demonstrate the defendant's predisposition by pointing to the defendant's conduct and to his reputation for dealing in contraband. See United States v. Russell,supra. In a Bueno-type case, however, the Government's task is more difficult. It may not rely solely on the jury's decision to believe or not to believe the defendant's story. United States v. Bueno, supra...