53 F.3d 340 (9th Cir. 1995), 93-50106, U.S. v. Howell

Docket Nº:93-50106, 93-50171.
Citation:53 F.3d 340
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rudolph HOWELL, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Angel Cesar OGANDO, Defendant-Appellant.
Case Date:April 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 340

53 F.3d 340 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rudolph HOWELL, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Angel Cesar OGANDO, Defendant-Appellant.

Nos. 93-50106, 93-50171.

United States Court of Appeals, Ninth Circuit

April 26, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Oct. 3, 1994.

Appeal from the United States District Court for the Central District of California; Nos. CR-92-746-HLH, No. CR-92-746-HLH, Harry L. Hupp, District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before: D.W. NELSON, NORRIS, and BOGGS, [*] Circuit Judges.

MEMORANDUM [**]

After a jury trial, Howell was found guilty on five counts; (1) conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine, in violation of 21 U.S.C. § 846; (2) distribution of 884 grams of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1); (3) distribution of 3,445 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a); (4) possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) and (d); and (5) aiding and abetting the manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). Ogando was found guilty on Counts 1, 3, and 5. Howell was sentenced to 295 months, Ogando was sentenced to 120 months. On appeal, we affirm the convictions of both Howell and Ogando.

I

On appeal, Howell argues that the trial court's refusal to allow him to call confidential informant Sherrod as a witness violated the Confrontation Clause. Howell's counsel initially sought to call Sherrod as a witness, in order to demonstrate that Howell had been entrapped. The court never ruled on this issue, because Howell's counsel withdrew the request to call Sherrod as a witness. An issue not presented before the trial court is usually not reviewable on appeal. United States v. Childs, 944 F.2d 491, 495 (9th Cir. 1991); United States v. Barnett, 935 F.2d 178, 180 (9th Cir. 1991). Here, the trial court made no legal determination for this court to rule upon.

In his reply brief, Howell argues that the court refused to allow Howell's counsel to call Officer David Marzullo, who apparently would impeach Sherrod's credibility. The court ruled that this was not relevant to Howell's entrapment defense. We need not address this issue because Howell raises this particular point for the first time in his reply brief, thereby not providing the government with notice to brief the issue. See All Pacific Trading Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1434 (9th Cir. 1993), cert. denied, 114 S.Ct. 1301 (1994). Furthermore, this evidence appears to be relevant only to show Sherrod's credibility or veracity, not Howell's entrapment. As discussed, Howell's counsel waived his request to call Sherrod as a witness. The court was well within its discretion to bar this testimony.

II

Howell also argues that the court's instruction No. 29.5 failed to instruct the jury properly on the issue of entrapment. Before trial, Howell offered an instruction on the entrapment issue. It read:

A person is entrapped when the person has no previous intention to violate the law and is persuaded to commit a crime by government agents. On the other hand, where a person is already willing to commit a crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.

The court adopted this instruction entirely, adding another two sentences:

The government has the burden of proving beyond a reasonable doubt that no entrapment took place. If it does not do so, the jury should acquit defendant Howell as to any charged crimes that he was entrapped into committing.

Howell's counsel did not object to the modification.

Howell argues that this instruction falls short of the requirement in United States v. Dearmore, 672 F.2d 738 (9th Cir. 1982), that an entrapment instruction should tell the jury that the government "must prove beyond a reasonable doubt that the defendant was ready and willing to commit the crimes whenever an opportunity was afforded." Id. at 740-41.

In Dearmore, this court held that a trial court must instruct the jury that, once entrapment is raised as an issue, the government must show beyond a reasonable doubt that no entrapment took place. Dearmore thus requires the language that the trial court added. Howell may prefer in retrospect the "whenever an opportunity was afforded" language. However, that language is not required under current entrapment case law, see Jacobson v. United States, 112 S.Ct. 1535 (1992), nor was it a part of Howell's initial instruction request.

This instruction would appear to meet the requirements of Jacobson, which requires that the government must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act before being contacted by the government. Id. at 1540 & n.1. In the present case, the language added by the court to Howell's proposed jury instruction mirrors the language...

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