742 F.2d 1196 (9th Cir. 1984), 81-1648, United States v. Escobar de Bright

Docket Nº:81-1648.
Citation:742 F.2d 1196
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hilda ESCOBAR DE BRIGHT, Defendant-Appellant.
Case Date:September 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1196

742 F.2d 1196 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Hilda ESCOBAR DE BRIGHT, Defendant-Appellant.

No. 81-1648.

Resubmitted to Original Panel

United States Court of Appeals, Ninth Circuit

September 18, 1984

March 12, 1984.

Argued En Banc Jan. 12, 1984.

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Daniel G. Knauss, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Robert Murray, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before FLETCHER, PREGERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

After abolishing the long standing concurrent sentence doctrine, an en banc panel, 730 F.2d 1255, remanded this case to the original panel to decide the merits of the defendant's challenge to her conspiracy conviction. 1 We now hold that the district court committed reversible error in failing to instruct the jury that if it found that the defendant "conspired" only with a government agent she could not be found guilty of conspiracy. Accordingly, we reverse her conspiracy conviction.

Hilda Escobar de Bright was charged on counts of conspiring to import heroin (Count One), illegally importing heroin (Count Two), conspiring to possess heroin with intent to distribute (Count Three), and illegally possessing heroin with intent to distribute (Count Four), in violation of 21 U.S.C. Secs. 963, 952(a), 960(a)(1), 841(a)(1) (1982), and 18 U.S.C. Sec. 2 (1982). She was convicted on all four counts and sentenced to concurrent six-year sentences. In Counts One and Three, Escobar de Bright was charged with conspiring with Ernesto Ayala-Zarate, Hector Ayala-Zarate, Ana Maria Zarate de Ayala, and others to import heroin in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and to possess heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

In April 1981, Ernesto Ayala-Zarate contacted Manny Banda, a paid informant for the Drug Enforcement Administration, about the purchase of heroin. Apparently, in that and a later conversation, Ernesto gave Banda the defendant's telephone number--one time so that Banda might approach Ernesto's brother, Hector, who is Escobar de Bright's son-in-law, and one time so that Banda might contact the defendant and solicit her assistance in importing heroin from Mexico. Banda arranged to meet the defendant and, after meeting her, persuaded her to drive immediately to Mexico. At trial, the defendant testified that she drove to Mexico only because she felt threatened by Banda and that she did not know that he planned to import heroin. After entering Mexico, she drove back across the border where her 17 year old son, Francisco, entered the automobile. Her car was later stopped by United States Customs Patrol officers. The officers searched Francisco and discovered four ounces of heroin.

Subsequently, Escobar de Bright and Ernesto and Hector Ayala-Zarate were named in the four count indictment. The jury found the defendant guilty on all four counts. 2

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The defendant challenges her conspiracy conviction. She claims that the district court erred in refusing to instruct the jury that she could not be found guilty of conspiracy if the jury determined that she "conspired" only with the government agent, Manny Banda. 3 In response, the government argues that the jury instructions fully informed the jury of the law of conspiracy. We agree with the defendant. 4

"A defendant is entitled to an instruction concerning his theory of the case if it is supported by law and has some foundation in the evidence." United States v. Winn, 577 F.2d 86, 90 (9th Cir.1978) (emphasis added); see United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir.1983); United States v. Wright, 593 F.2d 105, 107 (9th Cir.1979); United States v. Hall, 552 F.2d 273, 275 (9th Cir.1977); see also United States v. Sielaff, 615 F.2d 402, 403 (7th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980) ("The general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has 'some foundation in the evidence, "even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." ' " (citations omitted)). 5 We have emphasized that failure to give such a requested instruction is reversible error. United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 553 (1973) (citing Perkins v. United States, 315 F.2d 120, 124 (9th Cir.), cert. denied, 375 U.S. 916, 84 S.Ct. 201, 11 L.Ed.2d 155 (1963)); see United States v. Lyman, 592 F.2d 496, 504 (9th Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Charron v. United States, 412 F.2d 657, 660 (9th Cir.1969); Baker v. United States, 310 F.2d 924, 930 (9th Cir.1962), cert. denied, 372 U.S. 954, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963).

In Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965), the Fifth Circuit Court of Appeals established the rule that, "as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy." (citing United States v. Wray, 8 F.2d 429 (N.D.Ga.1925)). The Fifth Circuit held that, because the jury could have concluded from the evidence that the defendant conspired only with the government agent, the district court erred in failing to instruct the jury that it could find the defendant guilty of conspiracy only if it determined that he acted with the knowledge that persons other than the government agent were also involved in the illegal scheme. Accordingly, the Fifth Circuit reversed the defendant's conviction.

Two other circuits have explicitly adopted the Sears rule. See United States v. Moss, 591 F.2d 428, 434 n. 8 (8th Cir.1979); United States v. Chase, 372 F.2d 453, 459 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967) ("[O]ne who acts as a government agent and enters into a purported conspiracy in the secret role of an informer cannot be a co-conspirator.") (citations omitted). In addition,

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at least one other circuit has expressed the view that the Sears rule is correct. See United States v. Barnes, 604 F.2d 121, 161 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980) ("[T]he Government showed that [the defendant's] involvement was more far-ranging than simply having conspired with Government agents, for which no conspiratorial liability could be imposed."); United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir.1977). Until now, we have not considered the applicability of the Sears rule.

Strong considerations support the adoption of the Sears rule. A conspiracy is defined as an agreement between two or more people to commit an unlawful act, see, e.g., Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975); United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128 (1940); United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir.1982); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980), which arguably requires some form of a "meeting of minds," Krulewitch v. United States, 336 U.S. 440, 448, 69 S.Ct. 716, 720, 93 L.Ed. 790 (1949) (Jackson, J., concurring). There is neither a true agreement nor a meeting of minds when an individual "conspires" to violate the law with only one other person and that person is a government agent. The principle was explained concisely a quarter of a century ago:

Since the act of agreeing is a group act, unless at least two people commit it, no one does. When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone. Although he may possess the requisite criminal intent, there has been no criminal act.

Developments in the Law--Criminal Conspiracy, 72 Harv.L.Rev. 920, 926 (1959) (emphasis added; footnote omitted) (hereinafter Developments ). In short, the formal requirements of the crime of conspiracy have not been met unless an individual conspires with at least one bona fide co-conspirator.

The rationale behind making conspiracy a crime also supports the Sears rule. Criminal conspiracy is an offense separate from the actual criminal act because of the perception "that collective action toward an antisocial end involves a greater risk to society than individual action toward the same end." Developments, supra, at 923-24 (footnote omitted); see W. LaFave & A. Scott, Criminal Law Sec. 61, at 459-60 (1972). In part, this view is based on the perception that group activity increases the likelihood of success of the criminal act and of future criminal activity by members of the group, and is difficult for law enforcement officers to detect:

For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.

United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211 (1915); see, e.g., Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961); Developments, supra, at 924-25; W. LaFave & A. Scott, supra, Sec. 61, at 459.

Such dangers, however, are non-existent when a person "conspires" only with a government agent. There is no continuing criminal enterprise and ordinarily no inculcation of criminal knowledge and practices....

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