U.S. v. Howell

Citation53 F.3d 340
Decision Date26 April 1995
Docket NumberNos. 93-50106,93-50171,s. 93-50106
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Rudolph HOWELL, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Angel Cesar OGANDO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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. Sec. 846; (2) distribution of 884 grams of methamphetamine, in violation of 21 U.S.C. Sec. 841 (a)(1); (3) distribution of 3,445 grams of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2(a); (4) possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c) and (d); and (5) aiding and abetting the manufacture of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 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 of the instruction in Jacobson, and thus fulfills this requirement.

The portion of the instruction Howell objects to is the portion he offered to the court. This court has held that, when the defendant proposes the challenged jury instruction, we may "deny review under the invited error doctrine." United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir. 1993), cert. denied 113 S. Ct. 2948 (1993); United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991). We find that the instruction meets the requirements of Jacobson, but we note that if the instruction had been error, it would have been an invited error.

III

Howell asserts that the court failed to make the required finding of the existence of a conspiracy, so that Detective Villanueva could testify about statements that Sherrod (the confidential informant) had made regarding Howell. Bourjaily v. United States, 483 U.S. 171 (1987). In Bourjaily, the Supreme Court held that the government must prove the existence of a conspiracy by a preponderance of the evidence in order to offer a hearsay statement by a co-conspirator under the co-conspirator exception to the hearsay rule. Id. at 175. The Supreme Court held that the co-conspirator's out-of-court statements could be used to meet this standard of proof. Id. at 180. Howell argues that the court did not determine that the prosecution had shown the existence of a conspiracy by a preponderance of the evidence. Therefore, Howell argues that the court should not have allowed Villanueva to testify to Sherrod's out of court statements about Howell. Howell did not object to Villanueva's testimony at trial. Thus, review is for plain error. United States v. Olano, 113 S. Ct. 1770, 1776 (1993).

The government argues that Sherrod's testimony is not hearsay, citing United States v. Echeverry, 759 F.2d 1451, 1456-57 (9th Cir. 1985), but rather only necessary background information under Fed. R. Evid. 801(c). In Echeverry, we held that an undercover police officer's testimony about out-of-court statements made by a co-conspirator were admissible, because they provided necessary background information. We noted that their probative value was independent of their veracity. Id. at 1457.

Even if the court did not make an explicit finding of a conspiracy, there is ample evidence in the record that Howell was involved in a conspiracy, especially considering Sherrod's statement, as Bourjaily permits. Therefore, the admission of Villanueva's testimony conveying Sherrod's out-of-court statement is not plain error under the hearsay exception for statements by co-conspirators.

IV

Section 3553(c)(1) of Title 18 requires the sentencing court to explain its imposition of a sentence when the guideline range exceeds 24 months. Howell claims that the court failed to state properly the reasons for its imposition of his sentence, by not assessing the factors of character, background, and goals as required by Sec. 3553(c)(1); see also United States v. Gardner, 988 F.2d 82, 85 (9th Cir. 1993). However, Howell received the lowest sentence available in his range and could not have been prejudiced by any oversight. Furthermore, the court did consider the relevant factors, by discussing the fact that Howell had no criminal history. This was the reason for Howell's low sentence. See Gardner, 988 F.2d at 85.

V

Howell claims that he should have received a reduction of two levels for accepting responsibility for his crime. USSG Sec. 3E1.1. A sentencing judge's finding that a defendant has not accepted responsibility for his crime is entitled to "great deference on review" and will not be disturbed unless it is without foundation. USSG Sec. 3E1.1, comment. (n.5); United States v. Molina, 934 F.2d 1440, 1450 (9th Cir. 1991) (standard of review is "clearly erroneous"); United States v. Goodrich, 919 F.2d 1365, 1369 (9th Cir. 1990). We hold that the district court properly exercised its discretion in denying Howell a two-level reduction for acceptance of responsibility.

VI

Ogando argues that the government presented insufficient evidence to convict him of conspiracy in Count 1, and aiding and abetting in Counts 3 and 5. We review the question of insufficient evidence by assessing whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir. 1992); United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987). Ogando argues that the government must show that he had the intent to help those involved in the crime, but it failed to produce evidence on that element. Vasquez-Chan, 978 F.2d at 552.

The trial evidence demonstrated that Ogando worked closely with Howell during critical parts of the conspiracy. At the second meeting between...

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