U.S. v. Dozal-Bencomo, DOZAL-BENCOM

• Decision Date: 31 December 1991
• Docket Number: DOZAL-BENCOM,No. 91-3066,D,91-3066
• Citation: 952 F.2d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Gabrielefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1246

952 F.2d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Juan Gabriel DOZAL-BENCOMO, Defendant-Appellant.

No. 91-3066.

United States Court of Appeals, Tenth Circuit.

Dec. 31, 1991.

Michael G. Christensen, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him, on the brief), Wichita, Kan., for plaintiff-appellee.

Peter John Orsi, Wichita, Kan., for defendant-appellant.

Before HOLLOWAY, MOORE and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant Juan Dozal-Bencomo (Dozal) was convicted in the United States District Court for the District of Kansas on five counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, one count of possession of heroin with intent to sell in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The sole issue in this appeal is whether entrapment, as a matter of law, exists.

Mr. Dozal appeals, claiming government agents induced him to commit the unlawful activity and the evidence produced at trial is insufficient as a matter of law to show he was predisposed to commit the offenses. The jury rejected defendant's entrapment defense and our review of the entire record convinces us the evidence clearly supports the verdicts. Accordingly, we affirm.

In February 1990, Mr. Dozal developed a friendship with a musician named Tony Fardella who agreed to help promote defendant's music career. Unbeknownst to Mr. Dozal, however, Mr. Fardella served as an informant for the Drug Enforcement Agency (DEA). ¹ Mr. Fardella soon told the DEA about a conversation he had with Mr. Dozal where he inquired whether Mr. Dozal knew anyone willing to front him cocaine. Mr. Fardella testified that Mr. Dozal responded negatively, but indicated he was "trying to move some heroin."

Mr. Fardella took undercover DEA Agent Jim Woods to Mr. Dozal's home on April 12, 1990, to purchase some heroin. Agent Woods posed as a heroin dealer seeking a supply source for further distribution. When they first arrived Mr. Dozal was alone but stated he was waiting for a "very old friend." Shortly thereafter, a man named Reynaldo Rodrigez arrived. ² During this first meeting Mr. Dozal made Agent Woods "swear to God that [he] was not a cop." Within two minutes of the encounter Mr. Dozal began negotiating the price of the heroin with Agent Woods, who was able to haggle the cost down from $2,300 to $2,200 per ounce. Agent Woods handed Mr. Rodrigez the money and he, in turn, handed the agent one ounce of brown Mexican heroin.

Before Agent Woods left, he and Mr. Dozal agreed on specific "code" words to use when describing heroin in future telephone conversations. Mr. Dozal also agreed the price for future heroin buys would drop to $2,100 per ounce. Mr. Rodrigez gave Mr. Dozal $60 for his services in this transaction.

Agent Woods telephoned Mr. Dozal three times to arrange purchases of heroin and Mr. Dozal invited him to his residence on at least one occasion. Transactions similar to the initial buy, but involving larger quantities of heroin, occurred at Mr. Dozal's residence on April 18, April 23, and again on April 30, 1990. All three times, Mr. Rodrigez handed Agent Woods heroin in exchange for cash. Mr. Dozal was present at each deal and continued to negotiate the price with Agent Woods. He indicated if ten ounce shipments were purchased the price would drop to $1950 per ounce. At one point Agent Woods inquired whether Mr. Dozal would be interested in swapping Following the buy on April 30th, Agent Woods discovered he had been shorted nearly one quarter ounce of heroin. He telephoned Mr. Dozal four times about the shortage and met with him at his residence. Mr. Dozal assured the agent that Mr. Rodrigez would correct the deficiency and offered to pay for the shortage himself. Mr. Dozal was visibly upset since he thought he had been "followed" after the previous day's transaction and because Agent Woods had used the word "gram" over the telephone.

                cocaine for heroin.   Mr. Dozal responded by saying he would have to talk it over with Mr. Rodrigez
                

Agent Woods went to Mr. Dozal's residence again on Tuesday, May 8, 1990, this time to arrange purchase of six ounces of heroin. Mr. Dozal appeared "paranoid." Believing his house was bugged with transmitters, Mr. Dozal led the agent to a utility room he thought was safe. He searched Agent Woods for electronic transmitters and again made him swear he was not a law enforcement officer. Mr. Dozal then agreed the transaction with Mr. Rodrigez would take place the following day.

Agent Woods met both individuals at Mr. Dozal's house on Wednesday as planned. Mr. Dozal promptly went to the garage, returned with a cup and placed it in front of Mr. Rodrigez. Mr. Rodrigez pulled a baggie containing heroin out of the cup and tossed it to Agent Woods, saying "[t]hat's your shortage." Agent Woods weighed the plastic bag on electronic scales and Mr. Rodrigez handed him several more baggies containing six ounces of heroin. Agent Woods then stated he needed to go to his car to retrieve the $12,000. Mr. Dozal initially objected to the agent leaving the house with the heroin but then acquiesced, saying "go ahead and get the money and bring it back in." Agent Woods did not return. Instead, three other DEA agents entered the house and arrested the pair.

At trial, Mr. Dozal admitted the elements of the offenses but claimed the government entrapped him. A jury rejected the entrapment defense after a four day trial and the district court sentenced Mr. Dozal to five years imprisonment on each count, to run concurrently.

DISCUSSION

Mr. Dozal contends the DEA initiated each of the illegal transactions and the government failed to show that he was predisposed to commit the offenses. In short, he argues the government brought forth no evidence other than his vulnerability to be "induced into the drug world by a mercenary." Mr. Dozal asserts "vulnerability" does not equate to predisposition and had the DEA not induced him to arrange the drug purchases he would have remained "a poor and struggling, but law abiding, musician."

Of immediate importance, Mr. Dozal asserts that whether sufficient evidence exists to constitute a triable issue of entrapment is a question of law, reviewable de novo by the Court of Appeals. While this statement is technically correct on its face, Mr. Dozal misconstrues its applicability to the present situation.

For example, much of the support cited by Mr. Dozal goes to the threshold inquiry of whether the trial court should allow an entrapment defense in the first instance; it bears little relevance to the proper standard of review this court should accord a jury's findings of fact on the issue. Here, the trial court delivered, without objection, nearly the identical entrapment instruction requested by Mr. Dozal's counsel. Because the trial court submitted the entrapment defense to the jury essentially as requested by Mr. Dozal, we need not consider whether a triable issue of entrapment exists.

However, we have examined Mr. Dozal's claim that the evidence supports a finding of entrapment as a matter of law. We "may find entrapment as a matter of law if the evidence satisfying the essential elements of entrapment is 'uncontradicted.' " United States v. Price, 945 F.2d 331, 332 (10th Cir.1991) (citations omitted). In other words, entrapment as a matter of law exists " 'only when there is undisputed testimony which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act.' " United States v. Fadel, 844 F.2d 1425, 1434 (10th Cir.1988) (quoting United States v. Gurule, 522 F.2d 20 (10th Cir.1975), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976)). Our search of the record reveals sufficient disputed testimony arose at trial to preclude a finding that Mr. Dozal was entrapped as a matter of law. For instance, Mr. Dozal's testimony contradicts Mr. Fardella's assertion that the defendant, not the DEA, actively sought out a buyer for heroin. This confutation alone forestalls the need for further inquiry.

Defendant carries a heavy burden in attempting to persuade an appellate court he has been entrapped as a matter of law, and for good reason. Where a properly instructed jury considers the entrapment defense, the matter becomes so intertwined with the issue of intent and so "typically based upon credibility determinations, [that it remains] an area traditionally reserved for jury resolution." Fadel, 844 F.2d at 1430; see also United States v. Riles, 928 F.2d 339, 342 (10th Cir.1991) ("Entrapment is an affirmative defense, which bears on the question whether a defendant is guilty of the crime charged ... [and] can only be resolved by trial of the general issue." (Citations omitted.)); United States v. Sullivan, 919 F.2d 1403, 1418 (10th Cir.1990) (when the trial court is convinced a genuine issue of entrapment exists, the matter becomes a question of fact for the jury). We generally will not supplant our judgment for that of the fact finder where it has resolved the matter. The fact finder is traditionally in the best position to evaluate the evidence and determine credibility. Here, especially, the jury not only observed the testimony of the witnesses, but also heard the taped recordings of the actual meetings between Agent Woods and Mr. Dozal. Because the jury held as a matter of fact that Mr. Dozal was not entrapped into distributing heroin, "it would be anomalous for us to now hold that there was entrapment as a matter of law." Price, 945 F.2d at 332. Such a determination that entrapment was established as a matter of law can, however, be made in circumstances where the holding should be made without choosing between conflicting witnesses nor judging credibility. Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (entrapment held...