U.S. v. Duran

Decision Date09 January 1998
Docket NumberNo. 96-4108,96-4108
Citation133 F.3d 1324
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Simon DURAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Wayne T. Dance, Assistant United States Attorney, Salt Lake City, UT (Scott M. Matheson, Jr., United States Attorney, and Brooke C. Wells, Assistant United States Attorney, with him on the brief), for Plaintiff-Appellee.

C. Danny Frazier, Provo, UT, for Defendant-Appellant.

Before BALDOCK and EBEL, Circuit Judges and McWILLIAMS, Senior Circuit Judge.

EBEL, Circuit Judge.

In this cocaine distribution case, the defendant relied on the affirmative defense that he was entrapped by the undercover government agents and government informant who negotiated a series of cocaine deals with him. During the defendant's trial, it became clear that the jury was confused about the legal contours of the entrapment defense. On appeal, the government concedes that the court's jury instructions on entrapment were plainly erroneous, and we agree. Furthermore, in the face of obvious confusion by the jury as to the entrapment defense, it was plain error for the district court to respond to the jury's requests for clarification by simply referring the jury back to the initial defective jury charge, which in fact was the source of the jury's confusion. We reject, however, the defendant's additional contention that he was entitled to an acquittal as a matter of law. Instead, we remand this case for a new trial.

I.

Defendant-appellant Simon Duran ("Duran") was convicted on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), (c), and 18 U.S.C. § 2. Duran's arrest arose out of a series of "controlled buys" by undercover agents of the FBI and the Utah Department of Corrections during the fall of 1995, but his trial and conviction revolved around only the last deal, involving a one-kilogram transaction where Duran acted as a middle-man for another cocaine supplier. 1

During the summer of 1995, Duran worked as a stocker for a supermarket chain's warehouse facility in Salt Lake City. One of his co-workers was Douglas Needham ("Needham"), who at the time was a confidential informant for the FBI. Duran testified that during their work shifts, Needham bragged about his contacts in the drug world, and he approached Duran about finding a source for cocaine. Needham, however, testified that it was Duran who first suggested dealing in drugs.

After some initial contact with Duran, which had not been authorized by the FBI, Needham reported to the FBI in early September that Duran would be willing to sell cocaine. On September 16, 1995, Duran took part in the sale of one ounce of cocaine to Officer Leona Ika of the Utah Department of Corrections ("Officer Ika"). On September 19, 1995, Duran took part in the sale of four ounces of cocaine to FBI Special Agent Bob Evans ("Agent Evans"). On September 29, Duran took part in a second sale to Agent Evans, again for four ounces of cocaine. At all three cocaine purchases, Needham acted as a liaison between Duran and the undercover agents. Duran contends that he was pressured into these deals by Needham, that he was acting merely as an intermediary for the true supplier of the cocaine--a man named Armondo--and that he made no money from the purchases.

During the month of October, Evans and Duran discussed the sale of a kilogram of cocaine numerous times, including during several meetings at a local strip club. Agent Evans had purchased a membership at the club in order to ensure that Duran would be able to join him there. During the latter part of October, Duran placed several phone calls to Evans to try to set up a deal for a kilogram of cocaine.

On November 3, 1995, these discussions culminated in the sale of a kilogram of cocaine at the home of Leobardo Cruz ("Cruz") in West Valley City, Utah, with Duran acting as intermediary for Cruz and Needham acting as intermediary for Evans. Cruz testified that the cocaine came from another dealer, and that Cruz was charging Duran $21,000 for the drugs. The purchase price from Duran to Agent Evans initially was set at $24,000, but Evans testified that Duran unexpectedly raised the price to $25,000 and announced that he expected Evans to provide him with an additional ounce of cocaine for himself. After Needham inspected the cocaine for Officer Ika and Agent Evans, Duran and Cruz were arrested. Subsequently, Cruz testified against Duran as part of a plea bargain.

Duran's defense at trial relied solely on his claim of entrapment. Duran's counsel offered a proposed jury instruction on entrapment, 2 but this instruction was not used by the court; the record on appeal is silent as to the basis of the court's rejection of this proposal. Instead, the court delivered its own instruction setting out the elements of the defense of entrapment to the jury thus:

Instruction No. 32A:

Now, the defendant, Simon Duran, asserts as a defense that he was entrapped by the government through its agent to commit the crime of possession of a controlled substance with intent to distribute that is alleged in count one of the indictment. A defendant may not be convicted of a crime if that person was entrapped by the government to do the acts charged. The person is entrapped when that person has no previous intent or disposition or willingness to commit the crime charged and is induced or persuaded by a government agent to commit the offense.

A person is not entrapped when the person has a previous intent or disposition or willingness to commit the crime charged and the government agent merely provides the opportunity to commit the offense.

In determining the question of entrapment, the jury should consider all of the evidence received in this case concerning the intentions and disposition of the defendant before encountering the government agent, as well as the nature and degree of inducement or persuasion provided by the agent. 3

Both parties accepted this and all the other instructions drafted by the court without objection.

The court's entrapment instruction was patterned after the instruction suggested in Federal Jury Practice and Instructions, with one key difference. Not included in the district court's instruction was the final paragraph of the suggested instruction that explains the government's burden of proof:

In order to return a verdict of guilty as to Defendant ______ for the crime of ______ charged in [Count __ of] the indictment you must find, beyond a reasonable doubt, that the defendant had a previous intent or disposition or willingness to commit the crime charged.

1 Devitt et al., Federal Jury Practice and Instructions § 19.04 (4th ed.1992). 4

During its two days of deliberations, the jury sent five notes to the district court with requests for additional materials and interpretations of the instructions. The parties failed to make an adequate record of the sequence of these queries or the court's responses to them, and as result, the record on appeal is decidedly fuzzy about the chronology of events during the jury's deliberation. 5 Nevertheless, these queries show that the jury was puzzled about Needham's status as a government agent and the legal burden of proof with respect to the defense of entrapment. (See Jury Queries Nos. 3, 4, and 5.)

Although the record is sketchy at best as to how these queries were dealt with, during at least one colloquy with the district court the government conceded that Needham probably could be considered a government agent, but the government adamantly objected to both a specific instruction on this issue and a determination by the court that as a matter of law the jury should treat Needham as a government agent. The Court's ultimate response did not define who is a government agent, but merely told the jury that its instructions referred to "any agent doing work for the United States." Both the government and the defendant agreed to that response. As for Jury Query No. 5, which raised the question of the burden of proof for the entrapment defense, we have no record of the decision-making process whereby the court developed its response, nor is there any record of whether the parties objected to the court's response. The court's actual response did not answer the jury's question, but merely exhorted the jury to continue deliberating.

Eventually the jury returned a guilty verdict. The court sentenced Duran to sixty-three months in prison, and a fine of $2,000, with four years of supervised release following the prison term.

II.

On appeal, Duran contends that the district court's instruction on the entrapment defense was plainly erroneous because of its failure to inform the jury that the government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. The government concedes that the instruction constituted plain error, but nevertheless, we must still conduct our own independent review of the record to determine whether this case should be remanded. See United States v. Furman, 112 F.3d 435, 438 n. 2 (10th Cir.1997) (" '[P]arties cannot compel us to reverse (or modify) a district court's determination by stipulation.' ") (quoting Bolin v. Secretary of Health & Human Servs., 32 F.3d 449, 450 (10th Cir.1994)).

In the absence of any objection that puts the district court clearly on notice as to the asserted inadequacy of a proposed jury instruction, see Fed.R.Crim.P. 30, we will review jury instructions only for plain error. See United States v. Allen, 129 F.3d 1159, 1162-63 (10th Cir.1997). In Duran's case, his attorney did not object to the district court's failure to include burden-of-proof language in the court's proposed jury instruction on entrapment. Thus, Duran failed to put the district court "distinctly" on notice as to the legal inadequacy of the court's proposed instruction. See Fed.R.Crim.P. 30. As a result, we...

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