United States v. Cortes

• Citation: 757 F.3d 850
• Decision Date: 17 March 2014
• Docket Number: No. 12–50137.,12–50137.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jorge CORTES, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

757 F.3d 850

UNITED STATES of America, Plaintiff–Appellee,

v.Jorge CORTES, Defendant–Appellant.

No. 12–50137.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2013.

Filed Oct. 9, 2013.

Amended March 17, 2014.

Gary P. Burcham (argued), Burcham & Zugman, San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney for the Southern District of California, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Timothy D. Coughlin (argued), Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:10–cr–03617–BEN–1.

Before: SIDNEY R. THOMAS, BARRY G. SILVERMAN, and RAYMOND C. FISHER, Circuit Judges.

SILVERMAN, Circuit Judge:

ORDER

The Opinion filed October 9, 2013, appearing at 732 F.3d 1078, is amended as follows:

1. At slip op. 4, 732 F.3d at 1082, in the third sentence of the first paragraph, change “Accordingly, we reverse the Count 1 conviction and remand for a retrial” to “Accordingly, we reverse the convictions and remand for a retrial.”

2. At slip op.4, 732 F.3d at 1082, replace the fifth sentence of the first paragraph, which begins “We also affirm the Hobbs Act conviction....” with “We also reject Cortes's argument that Hobbs Act robbery or extortion is limited to the stealing of lawful property and excludes contraband such as illegal drugs.”

3. At slip op. 15, 732 F.3d at 1087, change “Accordingly, we REVERSE and REMAND for a retrial on Count 1.” to “Accordingly, we REVERSE and REMAND for a retrial.”

4. At slip op. 24, 732 F.3d at 1091, in first paragraph, replace “We express no judgment as to whether....” with “We express no opinion on whether....”

5. At slip op. 24–25, 732 F.3d at 1092, in carryover sentence, replace “....to steal the charged quantity of the controlled substance, which is at least 5 kilograms.” with “....to steal the quantity of drugs charged in this case, which is at least 5 kilograms.”

6. At slip op. 25–26, 732 F.3d at 1092, insert between header and first paragraph: “Cortes argues that Count Two should have been dismissed because, he argues, the Hobbs Act does not extend to contraband. Although we reverse and remand for retrial due to the instructional issue discussed above, we consider Cortes's Hobbs Act argument that his pretrial motion to dismiss this count should have been granted.”

7. At slip op. 28, 732 F.3d at 1093, below “4. Attempted Impeachment of the Confidential Informant,” replace “We need not review this evidentiary ruling because we are remanding for a new trial on Count 1.” with “We need not review this evidentiary ruling because we are remanding for a new trial.”

8. At slip op. 28–29, 732 F.3d at 1093, below “5. Sentencing,” replace “Because we are vacating his conviction ... his 20–year sentence is moot at this juncture.” with “Because we are vacating his conviction and sentence, and remanding for a retrial, Cortes's appeal of his sentence is moot at this juncture.”

9. At slip op. 29, 732 F.3d at 1093, replace “We REVERSE and REMAND for a new trial on Count 1. The balance of the judgment is AFFIRMED.” with “We REVERSE and REMAND for a new trial.”

With these amendments, Appellee United States Of America's petition for panel rehearing (Doc. No. 43) is DENIED and appellant Jorge Cortes's petition for panel rehearing (Doc. No. 44) is GRANTED. No further petitions for rehearing will be entertained in this case.

IT IS SO ORDERED.

OPINION

SILVERMAN, Circuit Judge:

Defendant–Appellant Jorge Cortes was arrested in an undercover reverse sting operation executed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF agents fabricated a scheme to steal 100 kilograms of cocaine from a stash house and arrested the conspirators before the home invasion occurred. Cortes was ultimately convicted of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), conspiracy to affect commerce by robbery and extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count 2), and possession of a firearm in furtherance of a crime of violence and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count 3).

On appeal, Cortes argues that the district court erred in modifying the entrapment defense instruction to reflect the holding of United States v. Spentz, 653 F.3d 815, 818–20 (9th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1600, 182 L.Ed.2d 209 (2012), refusing to instruct the jury on sentencing entrapment, denying Cortes the opportunity to impeach the confidential informant's credibility, denying a motion to dismiss the Hobbs Act charge, and sentencing him to an allegedly unreasonable total of 240 months. We hold today that the district court erred in its characterization of the Spentz holding. Accordingly, we reverse the convictions and remand for a retrial. We further hold that under certain circumstances a sentencing entrapment instruction must be given to the jury and offer suggested entrapment and sentencing entrapment instructions that we believe will provide greater clarity on these exceedingly subtle points of law. We also reject Cortes's argument that Hobbs Act robbery or extortion is limited to the stealing of lawful property and excludes contraband such as illegal drugs. We do not reach the remaining challenges, which are moot in light of the remand.

I. Background

On August 23, 2010, undercover ATF Special Agent Richard Zayas met up with a confidential informant who introduced him to an individual known as “the juvenile” or alternatively as “Abel.” Zayas told the juvenile that he was a “disgruntled courier of six to seven kilograms of cocaine for an organization.” And he informed the juvenile that he would soon be collecting the drugs from a stash house that contained approximately 100 kilograms of cocaine and was guarded by two individuals, one of whom would be armed. Zayas explained at trial that the drug quantity used in the story was selected based on the region of operation to enhance the plausibility of the scheme: “It's more likely a hundred kilograms of cocaine wouldn't be in a stash house in a small town in Iowa as opposed to San Diego.” According to Zayas, ATF targeted the juvenile because the confidential informant led them to believe that the juvenile “was involved with individuals involved in this type of crime.” The juvenile informed Zayas that he had an associate with a crew who could pull off the robbery and had done jobs like this before.

Zayas met that associate, Cortes, the following day, August 24, 2010. He reiterated the details of the stash house, including the quantity of drugs inside, underscoring that the house would only contain drugs, not money. Cortes announced that the drugs would be split half and half between Zayas and his group. Zayas told Cortes that he was motivated to steal the cocaine, because he believed his boss was not paying him enough and had been sleeping with his wife.

The next day, Zayas met up with Cortes and other individuals who had been assembled for the job. There were ten people present, plus the confidential informant. Cortes described the plan and introduced Zayas to the other individuals, so they would know not to hurt him during the robbery. Cortes instructed Zayas not to speak to the crew members. Zayas nevertheless informed them that the house contained 100 kilograms of cocaine, and Cortes scolded him for speaking to the rest of the crew against his wishes. They drove to and assembled in a garage, the staging area for the robbery. Zayas pretended to receive a call from the stash house, at which point a tactical team created a distraction using flash-bangs and arrested the entire crew, including Cortes.

At trial, Cortes testified that he attended the meeting on August 24, 2010, simply because he wanted to help the juvenile, and that he was not in desperate need of money. He testified that he was also motivated to participate because of Zayas's story about his wife's infidelity. Cortes says he was sympathetic to that tale of woe because the same had happened to him a few months back. He, however, denied that any dire financial straits had driven him to participate in the heist. Additionally, he maintained that he did not have a crew, had no experience with home invasions, and had basically lied for the sake of helping his friend, the juvenile.

Cortes filed a motion to dismiss the Hobbs Act count, arguing that it did not apply to the robbery or extortion of contraband; the motion was denied. He also filed motions in limine to secure entrapment and sentencing entrapment instructions. The court appears to have concluded that sentencing entrapment would simply be subsumed within any entrapment instruction and deferred ruling on whether that instruction should be given. Ultimately, the court gave the model entrapment instruction (Ninth Circuit Criminal Jury Instruction 6.2), which it modified to reflect the then-new holding of United States v. Spentz, 653 F.3d 815, 818–20 (9th Cir.2011). In Spentz, which concerned a similar drug stash house robbery sting, we said that the defendants could not merely point to the typical fruits of their crime to establish governmental inducement: “The drugs and money they would recover from the robbery were not an alternative, noncriminal motivation; they were the prototypical criminal motivation for robbery.” Id. at 819. The instruction in this case ultimately read as follows:

Now Defendant Jorge Cortes contends that he was entrapped by a government agent. The government has the burden of proving beyond a reasonable doubt that the Defendant Jorge Cortes was not entrapped. The government must prove either, one, that the Defendant Jorge Cortes was predisposed to commit the crime before being contacted by a...