U.S. v. Shapiro, s. 80-1187

• Citation: 669 F.2d 593
• Decision Date: 01 March 1982
• Docket Number: 80-1188,Nos. 80-1187,s. 80-1187
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karen SHAPIRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rebecca HOWARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 593

669 F.2d 593

UNITED STATES of America, Plaintiff-Appellee, v. Karen SHAPIRO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rebecca HOWARD, Defendant-Appellant.

Nos. 80-1187, 80-1188.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 1981.

Decided March 1, 1982.

Russell J. Frackman, Los Angeles, Cal., for Shapiro.

Morris L. Davidson, Los Angeles, Cal., for Howard.

Kathleen P. March, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SKOPIL, NELSON, and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

Shapiro and Howard appeal from their conviction, after trial by jury, of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (1976), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). Because we find that the appellants' motion for mistrial should have been granted by the district court, we reverse.

I. Facts

On the evening of November 13, 1979, three local law enforcement officers, working undercover in a joint investigation with agents of the Drug Enforcement Administration, drove to the apartment of Roy and Karen Shapiro. ¹ At an earlier meeting at which appellants Karen Shapiro and Howard were not present, Roy Shapiro had agreed to deliver a quantity of cocaine to Officer DeAmicis at Shapiro's apartment. DeAmicis entered the apartment and was introduced to Karen Shapiro, Roy's wife. When Roy Shapiro asked if DeAmicis had the money, the officer told him that it was in the car outside. Roy Shapiro directed DeAmicis to return to the car and tell Officer Brown to bring the money inside. DeAmicis returned to the Cadillac and stood outside it. Appellant Karen Shapiro then approached the car and asked the men inside it, Officers Brown and Maggiora, "What's the problem? Why don't you just come on in and we can do the deal?" Maggiora showed Shapiro a briefcase full of stacks of bills, and Brown then told her that he would come inside with it when DeAmicis reported to him that the cocaine was good.

When DeAmicis and Shapiro returned to the apartment and she informed her husband that she had seen the money, Roy Shapiro announced that he would make a telephone call to have the cocaine brought over, and that the deal would be made in Shapiro's limousine. DeAmicis and Roy Shapiro entered the limousine and Shapiro drove it from the garage to a position behind the officers' Cadillac. Karen Shapiro came outside and reported that "she's on her way." Soon thereafter, appellant Howard approached on foot. After conversing with Roy Shapiro, Howard left and returned accompanied by co-defendant Martin, who was carrying a package. Martin opened the package and let Officer Maggiora inspect the cocaine within it. The officers then placed Martin, Howard, and both Shapiros under arrest.

II. Sufficiency of the Evidence to Convict Karen Shapiro

Shapiro claims that the evidence is insufficient to support her conviction for either conspiracy or possession. In considering this claim, we are limited to a determination of whether there is substantial evidence of guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Garner, 663 F.2d 834, 837-38 (9th Cir. 1981). We must view the evidence in the light most favorable to the government. Glasser, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Traylor, 656 F.2d 1326, 1336 (9th Cir. 1981).

Shapiro contends that she was merely present at the November 13th transaction and had no involvement in it other than following her husband's instructions, on the belief that she would otherwise be in grave danger. She argues, correctly, that mere knowledge that a crime is being committed, even coupled with presence at the scene, ordinarily is not sufficient evidence upon which to base a conviction of participation in the crime. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); United States v. Weaver, 594 F.2d 1272, 1275 (9th Cir. 1979). On the other hand, only a slight connection to a previously proved conspiracy need be shown in order to convict a defendant of knowing participation in it. United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981); United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977).

The evidence before the jury indicated the following: Shapiro went outside to the officers' car and urged them to go inside her apartment and make the deal; she inspected the money and reported to her husband; she reported that the cocaine was on the way over; and she reassured DeAmicis, upon Howard's arrival, that "it's okay; she's a friend."

To find this evidence legally insufficient to sustain Shapiro's conviction, we would have to conclude that no rational trier of fact could have concluded on this evidence that Shapiro was connected to the conspiracy beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). We are persuaded, to the contrary, that the evidence amply supports the jury's verdict. ² Shapiro's claim that she was an unwilling participant in the conspiracy goes not to the sufficiency of the evidence but to her proffered duress defense.

III. Duress

Shapiro contends that it was error for the trial court to grant the prosecution's in limine motion to preclude her proffered duress defense. If the evidence as described in Shapiro's offer of proof was insufficient as a matter of law to support a duress defense the trial court was correct in excluding that evidence, see United States v. Glaeser, 550 F.2d 483, 487 (9th Cir. 1977), and in refusing to instruct the jury on duress. See United States v. Patrick, 542 F.2d 381, 386 (7th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).

To establish a defense of duress, defendant must show that (1) she was under an immediate threat of death or serious bodily injury, (2) she had a well grounded fear that the threat would be carried out, and (3) she had no reasonable opportunity to escape. United States v. Gordon, 526 F.2d 406, 407 (9th Cir. 1975).

Shapiro's counsel offered to prove that Shapiro's husband

told his wife that her life was in danger, that because her life was in danger she had better follow his directions in going down to this undercover vehicle, that basically he threatened her, and that because of that threat she undertook the action which subsequently followed ... down in the undercover vehicle in front of the apartment on Elm Street.

Counsel subsequently expanded his offer of proof, stating that Shapiro was afraid of DeAmicis because of his appearance, that she was "instructed" by her husband that "their" lives were in danger, and that "there was no opportunity to escape because of the lateness of the hour and the fact that those people were outside and downstairs and she didn't know quite what to do."

We agree with the trial court that Shapiro's offer of proof was insufficient as a matter of law. First, Shapiro offered no evidence of the immediacy of the threatened harm. ³ Additionally, she offered no credible evidence that she had no opportunity to escape. ⁴ Considering the evidence of record at the time Shapiro made her offer of proof, as well as the offer itself, we agree with the trial judge that no reasonable jury could have concluded that Shapiro acted under an immediate threat of serious bodily injury, with no opportunity to escape.

IV. Predisposition

Shapiro and Howard contend that the trial court erred in permitting the government to introduce evidence of Howard's predisposition to commit the crimes alleged. It is unclear that the Howard predisposition evidence affects Shapiro. Shapiro's theory throughout the trial was that she had no connection with the drug sales. Indeed, the whole object of Shapiro's counsel's cross-examination of government witness Aroff-the alleged entrapper of Howard and the source of the predisposition evidence against Howard-was to establish that Aroff had no knowledge that Karen Shapiro was involved in the drug transaction. Aroff admitted this when questioned by Shapiro's attorney. On appeal, Shapiro offers no theory as to how she was injured by evidence of Howard's predisposition.

Regardless, we hold that it was not error to admit the predisposition evidence. Predisposition becomes a relevant issue in a criminal prosecution when a defendant raises the issue of entrapment. The defense of entrapment has two elements: first, government agents must have induced the defendant to commit the offense; and second, the defendant must not have been otherwise predisposed to commit the offense, given an opportunity. United States v. Glassel, 488 F.2d 143, 146 (9th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). The defendant's lack of such predisposition is the crux of the entrapment defense. Hampton v. United States, 425 U.S. 484, 488-89, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976); United States v. Brandon, 633 F.2d 773, 778 (9th Cir. 1980).

Howard argues, however, that the government did not offer the predisposition evidence until after the court had foreclosed an entrapment defense by ruling that the alleged entrapper, Aroff, was not a government agent. The court simply did not so rule. Howard's attorney did request, at one point, that the trial court rule on whether agency had been adequately shown to raise an entrapment issue for the jury. The court declined to rule at that stage, however, expressly advising Howard that she was free to pursue the subject of government agency and the entrapment defense in general. Accordingly, it was not error to permit the government to cross-examine Aroff...