U.S. v. Fontenot, 91-10593

• Decision Date: 20 January 1994
• Docket Number: No. 91-10593,91-10593
• Citation: 14 F.3d 1364
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Christopher FONTENOT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1364

14 F.3d 1364

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Christopher FONTENOT, Defendant-Appellant.

No. 91-10593.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1993.

Decided Jan. 20, 1994.

Amitai Schwartz, San Francisco, California, for the defendant-appellant.

Stephen L. Meagher, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: HUG, and LEAVY, Circuit Judges, and REAL, ^* District Judge.

LEAVY, Circuit Judge:

Joseph Christopher Fontenot (Fontenot) appeals from his conviction and sentence for traveling in interstate commerce with intent

                to hire a person to murder his wife, in violation of 18 U.S.C. Sec. 1958. 1  We affirm
                

FACTS

While vacationing in San Francisco with his girlfriend, Suzanna Walton (Walton), during the week of June 7, 1990, Fontenot hired a limousine driver, Marcelo Feldberg (Feldberg). Fontenot told Feldberg that he wished there was some way he could "get rid of" his wife, Catherine, because he feared she would obtain custody of their children. Later, when Fontenot made it clear that he was looking for help in eliminating his wife, Feldberg told Fontenot that he might know of a hit man who would do the job for $3,000-5,000. The men exchanged telephone numbers and agreed to keep in touch.

Feldberg made several telephone calls to Fontenot. During one conversation, Fontenot inquired whether Feldberg had found a hit man. Feldberg stated he had yet to do so because he wanted to make sure Fontenot was serious. To show his intention, Fontenot wired Feldberg $1,000 as a down payment on June 18, 1990. Unknown to Fontenot, Feldberg was working as a confidential informant (CI) for the Immigration and Naturalization Service (INS). Feldberg telephoned INS Agent John Fox (Fox) to report Fontenot's proposition.

Agent Fox contacted the FBI. The FBI had Agent William Reagan (Reagan) pose as the hit man. Reagan telephoned Fontenot. The men agreed that, in exchange for killing Catherine, Fontenot would pay $2,500 to Reagan to cover initial expenses and, after receiving the proceeds of a $100,000 life insurance policy recently taken out on Catherine's life, Fontenot would pay an additional $10,000 to Reagan.

Fontenot traveled from Texas to San Francisco where the two men met. During this meeting, Fontenot provided Reagan with Catherine's physical description, as well as a description of her life-style, personal habits and health problems. At the end of the meeting, Fontenot was arrested.

DISCUSSION

I. Entrapment

Fontenot claimed he was entrapped in that Feldberg induced him into planning the crime and hiring Reagan. The jury was given the following instruction:

A person is entrapped when the person has no previous intention to violate the law and is persuaded to commit a crime by government agents.

On the other hand, where a person is already willing to commit a crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.

Shortly after beginning deliberations, the jury sent the court a note, which read:

For the purposes of considering the issue of entrapment, was Marcelo Feldberg a government agent? If he was a government agent, when did he become a government agent?

In response, the court gave the following instruction:

Whether or not Mr. Feldberg was a government agent, and if so when he became a government agent are questions for you to decide. In deciding those questions you should consider that, for purposes of entrapment, someone is a government "agent" when the government directs and supervises his or her activities and is aware of those activities. To be an agent, it is not enough that someone has previously acted as an informant or been paid as an informant by other state or federal agencies or that one expect compensation for providing information.

You must look to all of the circumstances existing at the time, and including Those are matters for your consideration. That's not an exhaustive list, but those are the kinds of things that you may consider in deciding whether he was a government agent.

but not limited to the nature of the informant's relationship with the government, the purposes for which it was understood that he may act on behalf of the government, the instructions given to the informant about the nature and extent of permissible activities and what the government knew about those activities and permitted or used.

Fontenot argues the instruction given in response to the jury's question was error in several ways.

A. Federal Rule of Criminal Procedure 30

Fontenot argues the district court violated Federal Rule of Criminal Procedure 30 by failing to notify him that it would give the jury the supplemental instruction on agency, and thus unfairly prevented him from arguing this aspect of the evidence.

Rule 30 provides:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.... The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

Fontenot relies on United States v. Gaskins, 849 F.2d 454 (9th Cir.1988) where we found a prejudicial violation of Rule 30 and reversed. However, Gaskins is distinguishable. There, the district court responded to a jury's question by giving an instruction on aiding and abetting that the government had requested and the court had rejected before argument, as Rule 30 requires. Defense counsel's request for leave to reopen closing argument was denied. Here, neither party requested an instruction on agency, or moved to reopen closing argument.

By its terms, Rule 30 applies to instructions requested by a party prior to the close of evidence. United States v. Buishas, 791 F.2d 1310, 1316 (7th Cir.1986); United States v. Newson, 531 F.2d 979, 983 (10th Cir.1976); United States v. Clarke, 468 F.2d 890, 891-92 (5th Cir.1972). Neither Fontenot nor the government requested the instruction. Thus the court had no duty or opportunity to inform counsel of its proposed action on the question from the jury. We hold that Rule 30 does not apply in the absence of a requested instruction which the court initially declined to give.

However, if a supplemental jury instruction given in response to a jury's question introduces a new theory to the case, the parties should be given an opportunity to argue the new theory. See United States v. Horton, 921 F.2d 540, 546-48 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2860, 115 L.Ed.2d 1027 (1991); United States v. Civelli, 883 F.2d 191, 196 (2d Cir.), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989); United States v. Cheek, 882 F.2d 1263, 1279 (7th Cir.1989), vacated on other grounds, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). This result is not dictated by Rule 30, but rather it is required to prevent unfair prejudice.

A supplemental instruction which merely clarifies an existing theory does not mandate additional arguments. See Horton, 921 F.2d at 547 (the purpose of Rule 30 would be frustrated if supplemental instructions which present a new theory were given without an opportunity for additional argument); Civelli, 883 F.2d at 196 ("there are special cases where the principles that underlay Rule 30 may very well require that the district court allow further argument after an instruction has been given."); United States v. Smith, 789 F.2d 196, 202 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986) (supplemental instructions which materially modify the original instructions could violate Rule 30). Here, the instruction on agency merely clarified Fontenot's entrapment theory.

Fontenot contends that his counsel should have been permitted to make further argument to the jury after its question was answered. However, no request for leave to reopen argument was made. We have no ruling to review.

B. Submission of Agency Issue to the Jury

A finding of entrapment depended upon a finding that Feldberg was a government agent, because one cannot be entrapped by a private citizen. United States v. Cruz, 783 F.2d 1470, 1473 (9th Cir.), cert. denied, 476 U.S. 1174, 106 S.Ct. 2902, 90 L.Ed.2d 987 (1986). Fontenot argues the district court erred in submitting the agency issue to the jury because Feldberg was a government agent as a matter of law.

He argues that the government waived its claim that Feldberg was not a government agent by tacitly admitting Feldberg was an agent when he first encountered Fontenot and by failing to claim that he was not one. Fontenot relies upon the First Circuit's decision in United States v. Annese, 631 F.2d 1041 (1st Cir.1980). In Annese, the First Circuit found that "the evidence established [that the person who may have entrapped the defendant, was a government agent] beyond a reasonable doubt." Id. at 1048. The district court's instruction on agency thus "created a question of fact that did not exist." Id. at 1048. However, here the evidence supported a legitimate question of fact as to whether Feldberg was an agent of the FBI during his first contacts with Fontenot.

Fontenot also argues that under Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), Feldberg was an agent as a matter of law. However, the issue of entrapment is fact-specific. See United States v. Mkhsian, 5 F.3d 1306, 1309 (9th Cir.1993); United States v. Stenberg, 803 F.2d 422, 431 (9th Cir.1986). To have found that Fontenot was entrapped, the jury would have had to find that Feldberg was a government agent during the first few interactions between Feldberg and Fontenot. Whether Feldberg was a government agent was not clear.

This was not a case in which the evidence proved beyond a reasonable doubt that...