U.S. v. Garcia

• Decision Date: 09 September 1977
• Docket Number: 77-1071,Nos. 77-1056,s. 77-1056
• Citation: 562 F.2d 411
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nazario GARCIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Adrian GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

562 F.2d 411

UNITED STATES of America, Plaintiff-Appellee, v. Nazario GARCIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Adrian GARCIA, Defendant-Appellant.

Nos. 77-1056, 77-1071.

United States Court of Appeals, Seventh Circuit.

Argued June 13, 1977.

Decided Sept. 9, 1977.

Michael J. Guinan, Lawrence S. Galka, Chicago, Ill., for defendants-appellants.

Thomas P. Sullivan, U. S. Atty., Robert W. Tarun, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL and BAUER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

PELL, Circuit Judge.

Appellants Adrian and Nazario Garcia, who are brothers, were convicted by a jury of violating 21 U.S.C. § 846 by conspiring together and with one Jorge Carrera to distribute and possess with intent to distribute heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1), between August 1 and August 23, 1976. Nazario ¹ was convicted at the same trial on three indictment counts charging violations of § 841(a)(1) in two heroin distributions on August 19, 1976, and one on August 22, 1976. It is admitted that these distributions to Drug Enforcement Administration Agent Garcia, who was accompanied by a confidential informer named Hernandez, did in fact take place. As appellants' defenses and appellate arguments differ, and as both attack the sufficiency of the evidence to sustain their respective convictions, the facts will be discussed in the context of the arguments advanced.

I

Adrian's sole argument on appeal is that he never entered any drug conspiracy and that the evidence adduced does not support the jury's determination to the contrary. Such a challenge bears a heavy burden. No assertion is made that the jury was improperly instructed on the necessary elements of conspiracy. It was the jury's function and, it scarcely needs saying, is not ours, to assess credibility and weigh the evidence. We must take the view of the evidence which most favors the Government, and if substantial evidence supports the jury's conviction, we will not reverse it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tucker, 552 F.2d 202, 210-11 (7th Cir. 1977).

Viewed in this light, the evidence discloses the following. On August 8, 1976, Adrian received a phone call from the informer Hernandez, whom he had never met and with whom he had never spoken. No specifically drug-related discussions occurred, but Adrian agreed to meet with Hernandez the following day to discuss "business." On August 9, Hernandez and Agent Garcia went to the trailer park at which the appellants Garcias lived. A brief conversation between Hernandez and Adrian, in which drugs were not mentioned, ensued. Adrian then introduced Hernandez to Nazario, and these two discussed the sale of heroin from the latter to the former, for about 20 minutes. During most of this time, Adrian stood with Hernandez and Nazario, saying nothing. Occasionally, Adrian walked away for a short time and then returned. The next day, a similar situation occurred, Hernandez and Nazario discussing drug sales in the presence of Adrian, who took no direct part in the discussion.

Adrian did not participate in any of the distributions with which Nazario was charged in this case. Despite conflict between Government witnesses, there was some testimony Adrian was seen in the trailer park area on August 22, when Nazario delivered one kilogram of heroin to Agent Garcia. Finally, when Adrian was arrested in his trailer that day, a search of his wallet revealed sixty dollars of prerecorded currency which had been paid to Nazario on August 19 in a heroin transaction.

Adrian argues vigorously here that mere association with conspirators, knowledge of a conspiracy, and/or presence during conspiratorial discussions will not suffice to convict a man of conspiracy. Instead, he insists, there must at least be evidence to support the inference that the defendant in some way joined and participated in the conspiratorial scheme. We do not doubt that this is the law, United States v. Quintana, 508 F.2d 867, 879-81 (7th Cir. 1975); United States v. Baker, 499 F.2d 845, 847-49 (7th Cir. 1974), cert. denied sub nom. Felts v. United States, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667; United States v. Varelli, 407 F.2d 735, 741-43 (7th Cir. 1969); Turcott v. United States, 21 F.2d 829 (7th Cir. 1927), but applying it to this case does not require reversal, because the Government proved two things which, if believed, take this prosecution out of the class of mere presence, association, or knowledge cases upon which Adrian relies.

First, it proved that Adrian received a phone call from a perfect stranger inviting him to discuss unspecified "business" the next day, and that upon meeting the telephone contact, Adrian discussed no business but turned the contact over to his brother, who then negotiated a heroin sale while Adrian observed it. We need not determine whether this fact alone would support an inference of participation in the conspiracy, however, for when combined with the second fact that Adrian had in his possession part of the proceeds of the conspiracy, the inference was definitely a permissible one. To be sure, Nazario testified that he had given the sixty dollars to one of his and Adrian's trailermates to pay his share of living expenses and that the trailermate in turn had given the money to Adrian to buy food supplies. The jury, however, was not obliged to believe this explanation, and apparently it made a choice, well within its province as trier of fact, not to do so. The Government's case against Adrian Garcia while less than overwhelming, was sufficient to support the conviction. ²

II

Nazario's defense at trial was entrapment, and he argues here that the Government failed to overcome that defense by proof beyond a reasonable doubt. Again, of course, we point out that our review of this challenge to evidentiary sufficiency is a very limited one. ³

The Government entraps a defendant and precludes conviction when its agents prevail upon and induce him to commit a crime which he had no predisposition to commit. See generally United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Although there remains room for a due process challenge to outrageous Government conduct instigating an offense, Russell, supra, 411 U.S. at 431-32, 93 S.Ct. 1637; Hampton v. United States, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J., concurring), ⁴ "entrapment" as a defense "is not of a constitutional dimension." Russell, supra, 411 U.S. at 433, 93 S.Ct. at 1643. Given the existence of Government inducement (which raises the question, but which does not itself foreclose prosecution, see Sherman, supra, 356 U.S. at 372, 78 S.Ct. 819; Sorrells, supra, 287 U.S. at 441, 53 S.Ct. 210) inquiry about entrapment, as "definitively construed" in Russell, is "focused on the question of predisposition." Hampton, supra, 425 U.S. at 492, 96 S.Ct. at 1651 n. 2 (Powell, J., concurring); id. at 488-89 (opinion of the Court plurality). The line to be drawn is that "between the trap for the unwary innocent and the trap for the unwary criminal." Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 821.

Under these principles, we have no difficulty agreeing with appellant that his testimony raised the question of entrapment. He testified that he had never dealt in drugs before the incidents in question here, that he had a clean record without criminal involvement, that he was a hard working man attempting to support his family in Mexico but was at the pertinent times unemployed and desperate for money, that he initially refused to cooperate with Hernandez in the latter's search for drugs, and that only after two personal visits and four telephone calls in which Hernandez continued to "pester" him did he agree to try to find a drug source.

To argue, however, that this testimony establishes entrapment as a matter of law, as appellant does, goes too far. First, the jury was not obliged to believe the testimony. The verity that the trier of fact may and must make credibility determinations applies with full force to entrapment issues. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Townsend, 555 F.2d 152, 155-58 (7th Cir. 1977). Moreover, the jury was presented with specific evidence contradicting appellant's claim that he was not predisposed to deal in heroin. Appellant himself admitted that he told the informer Hernandez during their first meeting that he could write to sources in Mexico to obtain heroin. Hernandez testified to the same effect, adding that in this first meeting Nazario told him that he had "good contacts and good connections, and perhaps he would be able" to supply heroin, even in quantities as large as 100 kilos, and that Nazario estimated at that time a price per kilo. The jury could well have concluded that these were not the statements of an "unwary innocent," Sherman, supra, 356 U.S. at 372, 78 S.Ct. 819, initially refusing to involve himself in criminal activity. The Government characterizes this case, not unreasonably, as one in which the defendant claimed at first contact that he could deliver, and subsequently did. The jury's conclusion that appellant was predisposed to commit the offense was surely supportable by the evidence presented.

III

Nazario asserts two objections to the instructions given the jury, claiming that both improperly prejudiced his defense. In assessing these claims of error, we must recognize substantial discretion in the district court as to the specific wording of instructions, United States v. Rajewski, 526 F.2d 149, 160 (7th Cir. 1975). Our task is to determine whether the instructions,...