U.S. v. Lakich

Decision Date06 May 1994
Docket NumberNo. 92-4122,92-4122
Citation23 F.3d 1203
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dusan LAKICH, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Lance C. Malina, Asst. U.S. Atty. (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

David S. Mejia, Oak Park, IL (argued), E. Barry Greenberg, Greenberg & Associates, Oakbrook Terrace, IL, for defendant-appellant.

Before GIBSON, * COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Dusan Lakich ("Lakich") was indicted along with his co-defendant, Jose M. Huertas-Santiago ("Santiago") on one count of conspiring to possess with intent to distribute one kilogram of cocaine in violation of 21 U.S.C. Sec. 846, and one count of possessing with intent to distribute one kilogram of cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

Following a jury trial, co-defendant Santiago was acquitted on both counts while Lakich was acquitted on Count I (conspiracy) and convicted on Count II (possession with intent to distribute). He was sentenced to five years' imprisonment, to be followed by four years of supervised release, and ordered to pay a special assessment of $50.00.

On appeal, the defendant seeks a new trial on the grounds that the trial court's supplemental instruction on the issue of entrapment constituted plain error.

BACKGROUND

On the evening of June 24, 1992, Lakich called Steven Gligorovic ("Gligorovic"), a confidential informant ("CI") for the Cook County, Illinois Countryside Police Department, and stated that he could get Gligorovic as much cocaine as he needed. Gligorovic responded that he knew of another person named "Dan" who could make purchases of cocaine at any time. Unbeknownst to Lakich, the "Dan" Gligorovic was referring to was one Patrick Humes ("Humes"), a Drug Enforcement Administration ("DEA") agent. The following evening Lakich called again and agreed to meet with Gligorovic and "Dan" at 11:30 a.m. the following morning to sell a kilo of cocaine for $28,000. He stated that a man named "Jose" would bring the cocaine to the sale site. On the morning of June 26 the defendant Lakich arrived at Gligorovic's house and confirmed the drug deal, and thereafter Gligorovic contacted the DEA.

Gligorovic with Agent Humes (wired with a hidden recording device and posing as the buyer) drove to the agreed location and met Lakich waiting in his truck. Agent Humes gave Lakich the $28,000 and observed him count the money. At this time, Lakich suggested to Humes that they consummate the drug deal at another address.

While Agent Humes and Gligorovic drove to the selected location, Lakich was observed by other agents speaking with the co-defendant Santiago. Lakich then drove to the agreed sale site, motioned for Gligorovic to come to his truck, and instructed him to direct Agent Humes to follow. Humes suggested to Gligorovic that he remain behind while he followed Lakich in his car for about a block, whereupon the defendant pulled over and parked. Shortly thereafter, Santiago drove up in a white Chevy Astro mini van, rolled down his window and said he had to go "pick it up" and would return.

When Santiago returned, Lakich and Humes entered his Chevy mini van. Lakich handed a kilo of cocaine to Agent Humes to inspect while Santiago drove them around the block. Santiago parked the vehicle, Agent Humes exited the van and gave a prearranged arrest signal. DEA agents closed in and arrested both Lakich and Santiago.

Trial Proceedings

At trial, Lakich raised the defense of entrapment and told the jury quite a story. In his testimony he denied that he was a cocaine dealer and claimed that he had been induced by Gligorovic to pose as one in order that he might convince Gligorovic's buyer that the price of a kilo of cocaine had increased from its usual price of $25,500-$26,000 to $28,000. According to the defendant Lakich, Gligorovic explained to him that this was a higher price than he usually charged this buyer, and that he needed someone, in this instance Lakich, to pose as his supplier and "confirm" the higher price in order to alleviate any suspicions the buyer might have that he was being overcharged. According to Lakich, in return for his help, Gligorovic allegedly promised to repay Lakich part of the same $4,000 that Lakich stated he had allegedly previously loaned him. According to Lakich, he had loaned this money to Gligorovic after Gligorovic had supposedly told him that he feared for his life and needed the funds in order to settle a prior debt with his drug suppliers.

Lakich in his testimony also recounted that Gligorovic had allegedly advised him on how to talk and act like a real drug dealer. Lakich also claimed that the kilo of cocaine (worth some $28,000) originally came from Gligorovic, who supposedly had left it under a garbage dumpster unguarded near a nearby McDonald's restaurant for Lakich to pick up. Lakich stated that he retrieved the coke At trial, Lakich admitted to having counted out the $28,000 he received from Agent Humes, but testified that he had only done so pursuant to Gligorovic's instructions. Similarly, Lakich also testified that the numerous narcotics-related discussions he had had with Agent Humes (and which Humes had secretly recorded), were the result of Gligorovic having suggested to him that he "act like a drug dealer." Gligorovic, on the other hand, testified for the government and flatly contradicted Lakich's account. According to Gligorovic, Lakich contacted him on his own, offered to sell a kilo of cocaine, and proceeded to instruct him in how to set up the drug deal. On cross-examination, Gligorovic specifically denied having ever borrowed money from Lakich and denied having asked Lakich to "pose" as a drug dealer in order to convince his customer that the price of cocaine had increased.

as directed and delivered it to Santiago. Lakich promised to pay Santiago $500 if he would temporarily hold the drug and bring it to the sale site.

At the jury instruction conference, the government, relying on United States v. Evans, 924 F.2d 714 (7th Cir.1991), initially filed a motion to preclude an entrapment instruction on the ground that, even if one were to believe Lakich, no reasonable jury could find that the CI had provided him with an "extraordinary inducement" to commit a crime. The trial judge denied the government's motion, and instructed the jury without objection that:

"If Defendant Lakich had no prior intent or predisposition to commit the offense charged, and was induced or persuaded to do so by law enforcement officers or their agents, then he was entrapped.... In determining whether Defendant Lakich had a prior intent or predisposition to commit the offense charged, you may consider his personal background as well as the nature and degree of any inducement or persuasion of Defendant Lakich by law enforcement officers or their agents. When a person accepts a criminal offer without being offered extraordinary inducements, he demonstrates his predisposition to commit the type of crime involved."

The district court further instructed the jury without objection regarding the effect of there being multiple defendants and multiple counts (hereinafter the "multiple defendant/multiple count instruction"):

"Each count of the indictment charges each defendant named in that count with having committed a separate offense.

You must give separate consideration both to each count and to each defendant. You must consider each count and the evidence relating to it separate and apart from every other count.

You should return a separate verdict as to each defendant and as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to that defendant under any other count."

After two days of deliberations, the jury asked a question of the judge: "If we find the defendant not guilty on Count I due to entrapment, does the same entrapment reflect on Count II? Please define extraordinary inducement." Before responding to the jurors' question, the trial judge consulted the attorneys to obtain their approval of the supplemental instruction he intended to give.

We agree the term "extraordinary inducement" might not be as clear and definitive as we would like it to be, but neither side disputes that the district court gave an appropriate supplemental instruction defining extraordinary inducement ("An extraordinary inducement is one that might entice an otherwise law abiding person to commit a crime"). In response to the first part of the jury's question--whether a finding of entrapment on Count I would "reflect" on Count II--the trial court directed the jury to refer back and follow the multiple defendant/multiple count instruction in conjunction with the supplemental instruction he was about to give: "Some evidence may relate to more than one count. Still, you must give separate consideration to each count, considering only the evidence that relates to that count." Before giving this supplemental instruction, the judge asked the government if it agreed with the proposed response, and the prosecutor The jury returned to its deliberations and ultimately acquitted co-defendant Santiago of both counts and found Lakich "not guilty" as to Count I (the conspiracy count) and guilty as to Count II (possession with intent to distribute cocaine).

replied it agreed, as did Lakich's counsel, who stated: "I would agree to that," as did counsel for co-defendant Santiago.

ISSUE

The issue is whether the trial judge committed reversible error when it gave the supplemental instruction on entrapment as approved by respective counsel.

DISCUSSION

In spite of Lakich's specific agreement to the supplemental instruction, he somehow now finds cause to object. It is obvious that because he agreed to the supplemental instruction, he was in no...

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