U.S. v. Esquer-Gamez

• Decision Date: 31 March 1977
• Docket Number: Nos. 76-2734,E,ESQUER-GAME,76-2745 and 76-2799,s. 76-2734
• Citation: 550 F.2d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Renenrique Platt-Lopez, Guillermo Platt-Lopez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1231

550 F.2d 1231

UNITED STATES of America, Plaintiff-Appellee, v. Rene ESQUER-GAMEZ, Enrique Platt-Lopez, Guillermo

Platt-Lopez, Defendants-Appellants.

Nos. 76-2734, 76-2745 and 76-2799.

United States Court of Appeals, Ninth Circuit.

March 31, 1977.

Jo Ann D. Diamos, argued, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant Esquer-Gamez.

Sidney F. Wolitzky, argued, Tucson, Ariz., for defendant-appellant Guillermo Platt-Lopez.

Joe F. Tarver, Jr., argued, Robert J. Hooker of Hooker, McDonald & Morgan, Tucson, Ariz., for defendant-appellant Enrique Platt-Lopez.

Irma E. Dirst, Asst. U. S. Atty., argued, William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Before DUNIWAY, CHOY and KENNEDY, Circuit Judges.

DUNIWAY, Circuit Judge:

Three co-defendants were tried together and appeal from judgments of conviction of importing, possessing and distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1), 952(a) and 960(a)(1). We affirm in the case of Enrique Platt-Lopez (Enrique), and we reverse the convictions of Rene Esquer-Gamez (Esquer) and Guillermo Platt-Lopez (Guillermo).

FACTS

While in Phoenix, Arizona, Enrique, a Mexican citizen, was introduced to Ron Umbower, a government informant. Umbower asked Enrique whether Enrique could buy cocaine for him in Mexico. Enrique agreed to "look into it." From November, 1975, to February, 1976, Umbower contacted Enrique approximately twenty times regarding the possibility of obtaining cocaine. Umbower told Enrique that his "people" were upset with Enrique, who could earn a substantial amount of money if he cooperated. Finally, Enrique agreed to meet with the "dealers," and at the meeting produced an ounce of cocaine, which the "dealers," actually narcotics agents, purchased. At another meeting on April 13, 1976, the agents showed Enrique $26,000 in cash, which they said they were willing to exchange for 20 ounces of cocaine. The transaction was to be completed three days later in Nogales, Arizona. On the morning of April 16, Enrique contacted the agents at their hotel room in Nogales and gave them three ounces of cocaine. He then took one of the agents to the restaurant of the hotel and called Esquer over to them, after which the three men proceeded to the restroom. There, Esquer handed Enrique an opaque package and left. Next, Guillermo, Enrique's brother, entered the restroom, gave Enrique a similar package and left. Each of the packages contained three ounces of cocaine.

I. Enrique Platt-Lopez's Appeal, No. 76-2745.

Enrique raises three issues: (1) that he was entrapped as a matter of law; (2) that a remark made by the prosecutor was prejudicial; and (3) that the court erred in not striking a prejudicial and unresponsive statement made by a prosecution witness. We find no merit in any of them.

(1) Entrapment is established when it is shown that a government agent has persuaded an unwilling person to commit a crime. The crucial factor is the predisposition of the defendant rather than the degree of government participation. The question is one of fact, and on appeal we view the evidence in the light most favorable to the government. Hampton v. United States, 1976, 425 U.S. 484, 488, 96 S.Ct. 1646, 48 L.Ed.2d 113; United States v. Russell 1973, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366; United States v. Reynoso-Ulloa, 9 Cir., 1977, 548 F.2d 1329; United States v. Hermosillo-Nanez, 9 Cir., 1976, 545 F.2d 1230, 1232.

Enrique argues that he was not predisposed to commit the crime, pointing out that he did not provide cocaine immediately upon Umbower's initial request and that he only cooperated after repeated inducements, approximately twenty in number. Yet Enrique never refused to become involved. The first time Umbower asked him whether he could obtain cocaine in Mexico, Enrique said that he would "look into it." He supplied cocaine to the agents at a meeting before the one at which he was arrested, and he was willing to, and did, do so again. Moreover, the only inducement offered by the informant and the other agents was money. "The defense of entrapment, while protecting the innocent from Government creation of crime, is unavailable to a defendant who, motivated by greed and unconcerned about breaking the law, readily accepts a propitious opportunity to commit an offense." United States v. Reynoso-Ulloa, supra, 548 F.2d at 1338. On the evidence, the jury could find beyond a reasonable doubt that Enrique was predisposed to commit the crime. United States v. Hermosillo-Nanez, supra, 545 F.2d at 1232.

(2) During redirect examination of one of the agents, the prosecutor asked a leading question. In response to an objection, he explained that he was "trying to avoid bringing out some other matters that should not come out." Enrique argues that the statement implied that he had been engaging in narcotics activities before his arrest and that that implication could well have "tipped the scales" against him. While it is improper for a prosecutor to remark on any prior criminal conduct of a defendant that has not been made a part of the record, United States v. Martinez, 9 Cir., 1975, 514 F.2d 334, 343, the prosecutor's statement in this case is not such a remark. The preceding questions dealt with Enrique's voluntary participation and his active role in the negotiations. While the prosecutor might have been more careful, there was no reference to any prior criminal conduct by Enrique. Finally, even if the jury could have interpreted the statement as Enrique suggests, the evidence against him was overwhelming. Thus, the statement was harmless, Rule 52(a), F.R.Crim.P.; United States v. Jones, 9 Cir., 1972, 460 F.2d 325.

(3) Enrique argues that the trial court should have stricken a prejudicial, unresponsive statement by one of the agents. The agent had described the field tests which he performed on the substance given to him by Enrique and testified that he had not "snorted the cocaine." The first question on cross-examination by defense counsel, and the answer, were as follows:

BY MR. HOOKER:

Q Mr. Rogers, you wouldn't tell us if you did snort it, would you?

MR. HAWKINS: Objection, Your Honor, I think that is highly improper.

THE COURT: No, he may answer.

A I'm willing to take a polygraph, if that is what you are leading to.

(Reporter's Transcript at 290)

Enrique claims that the answer requires a new trial. The argument verges on

the frivolous. Counsel got the sort of answer that the

question deserved. II. Esquer-Gamez's and

Guillermo Platt-Lopez's Appeals, Nos.

76-2734 and 76-2799.

Both Esquer and Guillermo maintain that they did not know that the packages which Enrique gave them contained narcotics. They argue that the trial court committed reversible error by giving a version of the "Jewell" instruction which failed to tell the jury that if the defendants believed that what they were carrying was not contraband, they must be acquitted. ¹

In United States v. Jewell, 9 Cir., 1976, 532 F.2d 697, (in banc ), we affirmed a marijuana possession and importation conviction and held that the term "knowingly," as used in the criminal statute involved, was not limited to positive knowledge but included the state of mind of one who did not possess actual knowledge only because he consciously avoided it. In Jewell, the trial court gave the following instruction:

The Government can complete their (sic) burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

532 F.2d at 700.

The instruction given in this case is basically the same as that given in Jewell. ²

In Jewell, we said that the model instruction which should have been given would have included two elements, that "(t)he jury should have been instructed more directly (1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless he actually believes it does not exist." 532 F.2d at 704, n.21. ³

In this case the trial court failed, over defense counsels' objections, to include the second of those two elements in its instructions. That precise issue was not before us in Jewell. ⁴ The only court which has dealt directly with this problem is the Second Circuit. In United States v. Bright, 2 Cir., 1975, 517 F.2d 584, that court reversed a conviction because the trial court refused to add the requested instruction.

One distinction must be drawn between the case at bar and Jewell. Here, a timely objection to the instruction was made. In Jewell, there was no objection to the instruction. Thus, the standard of review in Jewell was whether the instruction as given amounted to "plain error." F.R.Crim.P. 52(b). Applying that standard, we held that the deficiency in the instruction was not so substantial as to justify reversal because the two elements, which a proper Jewell instruction should contain, were implied in the general instruction given. In the case at bar, as in Bright, supra, an objection on the relevant grounds was raised, and therefore the issue is whether the deviance from the suggested Jewell instruction was harmless error. ⁵ F.R.Crim.P 52(a). Here, we cannot conclude that the error was harmless.

We have no assurance that the jury succeeded in considering what the instruction did not tell them expressly to consider. As Judge Gurfein observed in Bright :

The juror's difficult task of probing the mind and will of another person is hard enough with...