U.S. v. Acosta, 94-2047

• Citation: 67 F.3d 334
• Decision Date: 01 May 1995
• Docket Number: No. 94-2047,94-2047
• Parties: UNITED STATES of America, Appellee, v. Jesus M. ACOSTA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 334

67 F.3d 334

UNITED STATES of America, Appellee, v. Jesus M. ACOSTA, Defendant, Appellant.

No. 94-2047.

United States Court of Appeals, First Circuit.

Heard May 1, 1995.

Decided Oct. 2, 1995.

Thomas G. Briody, Providence, RI, by Appointment of the Court, for appellant.

Michael P. Iannotti, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, was on brief for the United States.

Before BOUDIN, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

BOUDIN, Circuit Judge.

Jesus Acosta was indicted on two counts of possession of a firearm by a convicted felon. 18 U.S.C. Sec. 922(g). A jury convicted Acosta on one count and acquitted on the other, and Acosta was then given a mandatory minimum sentence of 15 years' imprisonment under the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e)(1). He now appeals, raising as his main issue a claim of entrapment. The evidence at trial, taken in the light most favorable to the jury's verdict against Acosta, United States v. Tuesta-Toro, 29 F.3d 771, 773 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 947, 130 L.Ed.2d 890 (1995), revealed the following.

Acosta is a 42-year-old man, married, with a prior record of drug offenses but no prior weapons convictions. Sometime in mid-1993--probably in early July--Acosta met Neal San Souci at a pawn shop in Pawtucket, Rhode Island, and the two men engaged in small talk regarding gold jewelry. Acosta and San Souci had apparently met once many years before. Unknown to Acosta, San Souci either was then or soon thereafter became a government informant.

A few days after the pawn shop meeting, Acosta and his brother-in-law stopped by San Souci's apartment to inspect some gold jewelry that San Souci had offered to sell Acosta. Instead of providing the jewelry, San Souci asked Acosta and his brother-in-law whether they could furnish San Souci with cocaine. When they declined, San Souci asked whether the two men could provide a gun. According to San Souci, Acosta said, "he'd check into it ... he didn't know of anybody or anything at that moment."

By his own testimony at trial, San Souci was a former drug addict and present alcoholic. Around the first week in July 1993 he began to work as an informant for Special Agent Stephen Woods of the Bureau of Alcohol, Tobacco and Firearms ("ATF"). Prior to working for ATF, San Souci had been jailed for failing to pay child support; for his assistance on this case and other matters, ATF paid San Souci approximately $4,000. San Souci conceded that he thought that he would be paid only if he succeeded in persuading Acosta to sell him the firearm.

San Souci testified that following the visit to his apartment he called Acosta on a number of occasions, usually leaving messages with Acosta's wife or Acosta's answering machine. Acosta's wife also testified that the telephone calls were very frequent, sometimes more than once a day, and that Acosta himself appeared uninterested in the messages and often made dismissive gestures. The purpose of San Souci's efforts to reach Acosta was to obtain firearms for San Souci to purchase.

On July 21, 1993, San Souci spoke to Acosta by telephone, again asking to purchase a firearm. Acosta told San Souci that he would "check into it" and advise San Souci. On July 23 Acosta told San Souci that he had a .25-caliber automatic pistol for sale. Later that day, after some bargaining, San Souci gave Acosta $125 in exchange for the weapon, which was fully loaded and had an obliterated serial number. San Souci asked for more guns, and Acosta said that he would "get back" to San Souci. The conversation was taped but the tape was inaudible.

At agent Woods' direction, San Souci did not call Acosta for a couple of weeks because telephone records were being secured. On August 6, 1993, San Souci called Acosta to ask for weapons and in the conversation--which was taped and played at trial--Acosta said that he was going to get them but needed more time. A similar conversation occurred on September 15, 1993, and on the following day, Acosta telephoned San Souci to tell him that he had a .32-caliber revolver for sale. The same day San Souci purchased the gun from Acosta for $130, again after bargaining about price.

During this sale, San Souci asked Acosta if he could get more guns. Acosta replied, "I'm going to get .38 specials" and "Maybe I can come up with an Uzi for $200." This conversation was recorded, and the recording played at trial. There is no indication that any other transactions were attempted or accomplished. In January 1994, Acosta was arrested for the two weapons sales and charged in two counts under the felon-in-possession statute.

At his trial, Acosta testified, admitting the transactions and his status as a prior felon. He relied primarily on the entrapment defense. The judge gave an entrapment charge, whose correctness is not challenged. The jury acquitted Acosta on the count relating to the July 23 transaction and convicted him for the September 16 transaction.

On this appeal, Acosta's main argument is that a verdict of acquittal should have been directed on count II on grounds of entrapment or, alternatively, that a new trial should have been offered. It appears that the motion for a new trial was made out of time, see Fed.R.Crim.P. 33; but in any case the district court's denial of such a motion is reviewed only for abuse of discretion. We think, therefore, that the central issue of this appeal is whether the evidence was sufficient to permit a reasonable jury to reject the entrapment defense.

The legal tests for entrapment are well established. What is required is (1) that the government induce the offense and (2) that the defendant not be predisposed to commit it. See Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). The bare terms--inducement and predisposition--do little to disclose the encrusting precedent. For our purpose, the most useful discussion is the decision of then Chief Judge (now Justice) Breyer in United States v. Gendron, 18 F.3d 955 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994). That decision, which is post-Jacobson, not only illuminates the entrapment concept but remains the governing law in this circuit.

Gendron makes clear that despite some general strictures against the government's "manufacturing" of crimes, inducement requires something more than that a government agent or informant suggested the crime and provided the occasion for it. Rather, inducement "consists of [providing] an 'opportunity' plus something else--typically, excessive pressure by the government ... or the government's taking advantage" of the defendant in an improper way. 18 F.3d at 961 (emphasis added). There is no better means of getting a sense of what the courts have regarded as "improper" inducement than the list of cases and parentheticals set forth in the Gendron opinion. Id. at 961-62.

Although the entrapment doctrine is primarily concerned with curbing such improper pressure by the government, a competing policy has led to the second requirement, namely, that the defendant also not be predisposed to commit the crime. The notion is that a defendant predisposed to commit the crime should not get off merely because the government gave the defendant too forceful a shove along a path that the defendant would readily have taken anyway. Gendron suggests that one might ask whether defendant would have been likely to commit the same crime without the undue pressure actually exerted. 18 F.3d at 962.

Entrapment is called a defense, but it is settled that once the defendant has made a threshold showing, the burden shifts to the government to prove beyond a reasonable doubt either that there was no undue government pressure or trickery or that the defendant was predisposed. See United States v. Rodriguez, 858 F.2d 809, 815 (1st Cir.1988). In this case, the facts were largely although not entirely undisputed. Thus, the problem for the jury was primarily that of applying a vague general standard--actually two such standards: inducement and predisposition--to a unique pattern of facts.

Because the facts were largely undisputed, one might think that on review this court necessarily decides as an issue of law whether the facts do or do not make out entrapment. Yet, even where there are no credibility issues or tensions in the evidence--and some do exist here--entrapment is treated as a issue of fact for a jury. That does not mean complete freedom for the jury, see Jacobson; it does mean that where a rational jury could decide either way, its verdict will not be disturbed. United States v. Gifford, 17 F.3d 462, 467 (1st Cir.1994).

Starting with inducement, the problem (as it is so often) is one of degree. On the one hand, the government does not disclaim responsibility for San Souci's conduct even if it occurred before he was hired, and here that conduct went some distance beyond "simply offer[ing] [defendant] the opportunity" to commit the crime. Jacobson, 503 U.S. at 550, 112 S.Ct. at 1541. True, Acosta did not close the door in the first discussion (Acosta, according to San Souci, said "he'd check into it"). But it took a campaign of persistent calls by San Souci before Acosta responded, apparently several weeks later.

On the other hand, there is no evidence that San Souci threatened Acosta or even rebuffed an explicit request by Acosta to be let alone. Nor does this case involve improper appeals to sympathy, cf. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), promises of extravagant reward, or the kind of relentless and extreme trickery engaged in by postal and customs agents in Jacobson. See 503 U.S. at 543-47, 112 S.Ct. at 1537-40. In other words, the facts fall somewhere in a middle ground between what is plainly proper and what is plainly improper.

If the district court had refused to submit the entrapment...