U.S. v. Mendoza, 89-1609SI

• Citation: 902 F.2d 693
• Decision Date: 07 May 1990
• Docket Number: No. 89-1609SI,89-1609SI
• Parties: UNITED STATES of America, Appellee, v. Cirilo MENDOZA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 693

902 F.2d 693

UNITED STATES of America, Appellee, v. Cirilo MENDOZA, Appellant.

No. 89-1609SI.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1989.

Decided May 7, 1990.

Joseph G. Bertogli, Des Moines, Iowa, for appellant.

Ronald M. Kayser, Des Moines, Iowa, for appellee.

Before LAY, Chief Judge; ARNOLD, Circuit Judge; and McMILLAN, ^* District Judge.

McMILLAN, District Judge.

Cirilo Mendoza was convicted of (1) conspiring to distribute cocaine (in violation of 21 U.S.C. Sec. 846); (2) possessing cocaine with intent to distribute it (in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B)(ii), and 18 U.S.C. Sec. 2); (3) distributing cocaine (also in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B)(ii), and 18 U.S.C. Sec. 2); and (4) using a telephone to facilitate distribution of cocaine (in violation of 21 U.S.C. Sec. 843(b) and (c)). Mendoza appeals his conviction on two grounds. He argues that there was insufficient evidence for the jury to convict him, and that the trial court ¹ erred when it sustained his convictions for both the possession and distribution charges. For the reasons set forth below, the judgment of the trial court is affirmed in part and remanded with instructions.

I. BACKGROUND

On approximately September 26, 1988, Marcellino Ramirez contacted the Drug Enforcement Administration ("DEA") in Des Moines, Iowa, and informed an agent that Cirilo Mendoza was a cocaine dealer in Muscatine, Iowa who was looking for customers. On September 27, DEA agent Steve Hummel made the first of several taped telephone calls to Mendoza in order to negotiate the purchase of one kilogram of cocaine. During these phone conversations, Mendoza repeatedly told Hummel he would have to obtain the cocaine before he could fix a date for delivery. Finally, on the morning of October 5, Hummel telephoned Mendoza in Muscatine and learned that Mendoza had the cocaine. The two men agreed that Mendoza would deliver the cocaine to Hummel in a Burger King parking lot in Des Moines, Iowa, at 4 p.m. that afternoon. Mendoza appeared at the parking lot at the appointed time, distributed approximately one kilogram of cocaine to Hummel, and was promptly arrested.

Mendoza was charged with conspiring to distribute cocaine; possessing one kilogram of cocaine with intent to distribute it on or about October 5, 1988; distributing the kilogram of cocaine on or about October 5, 1988; and using a telephone on five separate occasions in furtherance of the conspiracy.

At trial, Mendoza raised the defense of entrapment and testified that he only became involved in the drug transaction at the instigation of informant Ramirez. According to Mendoza, Ramirez had approached him in 1987 and asked him whether he wished to buy or sell drugs. Mendoza said that he had rejected Ramirez, but that in September of 1988 Ramirez renewed his overtures and repeatedly telephoned Mendoza with various proposals. At one point, Mendoza stated, Ramirez offered to pay him $3,600 to deliver cocaine to a buyer. Mendoza said he agreed to this proposal. Afterwards, Mendoza testified, he received phone calls from Steve Hummel, but Mendoza stated that Ramirez had instructed him on how to conduct the negotiations. Mendoza also said that, at Ramirez's directions, he picked up the cocaine from a Muscatine park and delivered it to Hummel.

Marcellino Ramirez's testimony differed considerably from that of Mendoza. According to Ramirez, Mendoza offered to sell drugs to Ramirez, flashed rolls of money, and asked Ramirez to refer customers to him. Ramirez said he did approach Mendoza in 1987 about buying or selling drugs, but said that Mendoza had told him that Mendoza had all the drugs he needed to supply his customers. Ramirez stated that in September of 1988, he asked Mendoza if he could give Mendoza's telephone number to a prospective buyer, and that when Mendoza agreed, Ramirez contacted the DEA. Ramirez admitted that the DEA paid him for this information, but denied that he had directed Mendoza's negotiations or that he had supplied the cocaine distributed by Mendoza.

The jury found Mendoza guilty of all of the offenses with which he was charged. Mendoza subsequently filed a motion for judgment of acquittal, which the court denied. He was given a single sentence of 66 months imprisonment for the conspiracy, possession and distribution offenses. He was sentenced to 48 months imprisonment for the remaining counts, to be served concurrently, and was ordered to pay a special assessment of $400.

II. ISSUES

A. Sufficiency of the Evidence

Mendoza first contends that the evidence presented to the jury demonstrated entrapment, and that the government failed to prove beyond a reasonable doubt that he was predisposed to commit the offenses of which he was convicted.

In order to persuade the court that the motion for judgment of acquittal should have been granted, Mendoza must demonstrate entrapment as a matter of law. The evidence must show that (1) a government agent originated the criminal design; (2) the agent implanted in the mind of an innocent person the disposition to commit the offense; and (3) the defendant committed the crime at the agent's instigation. United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir.1984); United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978). If evidence regarding the defendant's predisposition is conflicting, the issue is properly submitted to the jury. United States v. Shaw, 570 F.2d at 772.

The record shows two widely divergent versions of whether Mendoza was predisposed to commit the crimes with which he was charged. According to Mendoza's testimony, until Ramirez repeatedly approached him, he had no inclination to engage in criminal activity. However, according to Ramirez, Mendoza had represented himself to Ramirez as being involved in selling drugs, and even offered to sell drugs to Ramirez. In these circumstances, the judgment of acquittal was properly denied.

Reviewing the record in the light most favorable to the government, Resnick, 745 F.2d at 1186, the court concludes that there was sufficient evidence for the jury to find that Mendoza was predisposed to commit the crimes with which he was charged. Evidence showed that Mendoza had prior experience in drug dealing and willingly agreed for Ramirez to give his name to a potential customer in September 1986. In addition to the incriminating testimony of Ramirez, tapes of the telephone conversations between Mendoza and Hummel indicate that Mendoza was familiar with the terms used by drug traffickers and was an effective bargainer.

Mendoza also contends that the government's conduct was so outrageous as to require acquittal. See United States v. Gardner, 658 F.Supp. 1573 (W.D.Pa.1987). According to his portrayal of events, the government's paid informant harassed him until he agreed to commit a crime, and then provided the client, the advice, and the cocaine with which to commit it. Again, however, Ramirez's testimony conflicted with that of Mendoza on this issue, and it was proper to permit the jury to evaluate the credibility of the witnesses. See United States v. Cegelka, 853 F.2d 627, 629 (8th Cir.1988). The court concludes that the jury reasonably could have decided to believe Ramirez's account.

B. Separate Convictions Under 21 U.S.C. Sec. 841(a)(1)

Cirilo Mendoza contends that he was erroneously convicted of both (1) possessing a one-kilogram package of cocaine with intent to distribute it on October 5, 1988, under 21 U.S.C. Sec. 841(a)(1), and (2) distributing that same kilogram of cocaine later on the same day, also under 21 U.S.C. Sec. 841(a)(1). Mendoza contends that the two offenses were based on the same transaction, and argues that the conviction for possession with intent to distribute is surplusage and should therefore be set aside.

Section 401(a)(1) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Drug Act") states that:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance.

In order to cast its net as broadly as possible, the Drug Act is structured in such a way as to criminalize successive stages of a single undertaking. Though a defendant can be charged with multiple offenses under this section, United States v. Palafox, 764 F.2d 558 (9th Cir.1985), Congress did not intend for a defendant to be cumulatively punished for two or more offenses based on the same act. See United States v. Gomez, 593 F.2d 210 (3rd Cir.), cert. denied 441 U.S. 948, 99 S.Ct. 2172, 60 L.Ed.2d 1052 (1979); Palafox, 764 F.2d 558; United States v. Curry, 512 F.2d 1299 (4th Cir.), cert. denied 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50 (1975); United States v. Stevens, 521 F.2d 334 (6th Cir.1975).

1. Mendoza's Punishment

The first question that must be addressed is whether Mendoza's two separate convictions under Sec. 841(a)(1) expose him to cumulative punishment, or whether his challenge is moot.

Mendoza was sentenced under the federal sentencing guidelines. Pursuant to the guidelines, three of Mendoza's separate convictions (for possessing with intent to distribute, for distributing, and for conspiring to distribute the one kilogram of cocaine) were grouped together for purposes of sentencing. Based on the aggregate quantity of drugs involved--the single kilogram of cocaine--the trial court determined that Mendoza had a "base offense level" of 26 and a sentencing range of 63 to 78 months. See U.S.S.G. Sec. 2D1.1 and Sec. 3D1.1-1.3. The trial court then selected a sentence of 66 months imprisonment for the possession, distribution and conspiracy offenses. In choosing this sentence from the guidelines range, however, the trial court had the discretion to "consider, without limitation, any information concerning the background, character and...