U.S. v. Mendoza-Prado, 01-10105.

• Decision Date: 31 December 2002
• Docket Number: No. 01-10105.,01-10105.
• Citation: 314 F.3d 1099
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco MENDOZA-PRADO, aka, Paco, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 1099

UNITED STATES of America, Plaintiff-Appellee, v. Francisco MENDOZA-PRADO, aka, Paco, Defendant-Appellant.

No. 01-10105.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2002.

Filed December 31, 2002.

Karen L. Landau, Oakland, CA, for the defendant-appellant.

Lawrence J. Leigh and Stephen H. Jigger, Assistant United States Attorneys, Appellate Section, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CR-99-00062-CRB.

Before: HAWKINS, GRABER, and TALLMAN, Circuit Judges.

PER CURIAM:

Defendant Francisco Mendoza-Prado appeals his conviction, after a jury trial, of two cocaine-related offenses. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant met Donald Peralta in 1994, when Peralta was hired by the janitorial firm where Defendant worked. The two men became business and social friends while they worked together. They maintained a loose acquaintance after Defendant left his job at the janitorial firm.

In the fall of 1996, FBI Agent Mario Galindo undertook an investigation of drug trafficking in Redwood City, California. Agent Galindo knew Peralta, who had supplied him with information in the past. A primary target of the 1996 investigation was Defendant's brother Vicente. While reviewing relevant information, Agent Galindo noted that Peralta and Defendant had worked for the same company, so he decided to use Peralta as a cooperating witness.

In November 1996, Agent Galindo asked Peralta to renew his acquaintance with Defendant. Peralta agreed and began to report to Agent Galindo what he learned. Peralta testified at Defendant's trial to several conversations he had with Defendant concerning drugs, guns, and drug trafficking, but in which Peralta had not suggested that illegal activity be undertaken.

In August 1997, Agent Galindo rented an apartment in Redwood City, where Peralta's meetings with Defendant and others could be taped. Thereafter, Agent Galindo instructed Peralta to ask Defendant whether he knew anyone who could procure cocaine for Peralta's fictitious brother-in-law in Tennessee. Peralta telephoned Defendant on August 7 and followed the script provided by Agent Galindo. Initially Defendant replied that he did not know anyone, but later in the conversation said he did know someone who was "going to bring something" to Colorado. On another occasion Defendant told Peralta that Vicente would make the deal. Defendant and Peralta had several conversations in which Defendant gave assurances that this deal was "for sure" and would be "very easy" to arrange.

Eventually the deal was in fact arranged. On October 23, 1997, Defendant and a codefendant sold one kilogram of 90 percent pure cocaine to Peralta for $17,500, money that the government had supplied.

Agent Galindo then told Peralta to say that his brother-in-law wanted another five kilograms of cocaine. Peralta relayed that message to Defendant, who said that he would acquire the cocaine. Defendant and Peralta agreed to go together to meet the person who would sell it to them.

On December 20, 1997, Peralta and Agent Galindo (who was posing as Peralta's nephew) drove with Defendant and another person to a restaurant. There, Agent Galindo exchanged $35,000 for a bag containing 2,010 grams of 83 percent pure cocaine.

Following this sale, a 50-kilogram deal was discussed, but it never materialized.

In 2000, a federal grand jury returned a two-count superseding indictment. The first count charged Defendant (and others) with conspiracy to possess with intent to distribute, and conspiracy to distribute, more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. The second count charged Defendant and another with possession with intent to distribute, and distribution of, more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

After a three-week trial, a jury found Defendant guilty on both counts. The district court imposed a 127-month sentence, plus a term of supervised release and a $200 special assessment. Defendant brings this timely appeal, challenging his convictions.

DISCUSSION

A. Entrapment

Defendant first argues that he was entrapped as a matter of law. To prove that claim, he must "point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent." United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). We generally review this claim de novo, see United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir.1998), but will not disturb the jury's finding unless — viewing the evidence in the government's favor — no reasonable jury could have concluded that the government disproved the elements of the entrapment defense, United States v. Jones, 231 F.3d 508, 515-16 (9th Cir.2000).

At trial, Defendant testified that Peralta called him constantly and harassed him to find a provider of cocaine. By contrast, Peralta testified that the taped conversation on August 7, 1997, was the first time he had ever asked Defendant to obtain cocaine. The jury was not required to believe Defendant.

Defendant also argues that his friendship with Peralta induced him to commit the crimes. But Peralta did not invoke his friendship as a way to convince Defendant to arrange the drug deals. The mere suggestion to commit a crime does not amount to inducement, United States v. Simas, 937 F.2d 459, 462 (9th Cir.1991), even if the suggestion is made by a friend.

Even if Peralta's friendship created a feeling of obligation in Defendant, however, the jury properly could have found that Defendant was predisposed to commit the crimes. See United States v. Thomas, 134 F.3d 975, 978 (9th Cir.1998) (listing factors for courts to consider in deciding the issue of predisposition). A defendant's reluctance to engage in criminal activity is the most important factor to consider in deciding the issue of predisposition. United States v. Martinez, 122 F.3d 1161, 1163 (9th Cir.1997).

Here, Defendant showed no reluctance to commit the crimes. With very little inducement, he readily agreed to look for the cocaine sought by Peralta. He discussed the transactions several times, expressing no hesitation or change of heart. Additionally, Defendant's conversations demonstrated a prior familiarity with the drug trade. For example, when discussing an impending cocaine deal, Defendant remarked: "It's been years since I've seen anything as pretty as that damn stuff." Defendant knew about the price of cocaine in Europe and the process of cutting cocaine. And, although the government's agent made the initial suggestion for the specific transactions at issue, it was Defendant who first broached the general subject of drug trafficking and who subjected Peralta to various "tests" of trustworthiness, such as pointing a gun in Peralta's face to see how he handled fear and biting Peralta's finger and thumb to see how he handled pain. Finally, there is evidence suggesting that Defendant engaged in these narcotics transactions for profit.

We conclude that the issue of entrapment properly was left to the jury and that the jury permissibly found that Defendant was not entrapped.

B. Access to Impeachment Material

Before trial, Defendant sought exculpatory and impeachment material concerning Peralta, who was the government's chief witness. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the prosecution's suppression of material evidence favorable to the accused violates due process). The government disclosed Peralta's criminal history and its payments to him, but did not disclose false names that Peralta had used. The government submitted a list of Peralta's false names in camera to the district court, which withheld the information.

We review for clear error, United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988), and find none. Having reviewed the materials, there is no reasonable probability that, had the evidence been disclosed, the result of the trial would have been different. See United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir.1993) (stating standard).

C. Character Evidence

Finally, Defendant argues that the district court improperly admitted evidence concerning his character. Specifically, the court admitted a transcript of a videotape, translated from Spanish, in which Defendant bragged about several uncharged crimes that he had committed. The crimes included making telephone calls worth about $5,000 while working as a janitor in a government building, stealing $30,000, harassing American tourists and extorting money from them while he was a police officer in Mexico, and helping someone escape from prison. We review for abuse of discretion the district court's decision to admit evidence of prior bad acts. United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir.1999).

1. Propensity

The government argues that evidence of all prior bad acts is relevant in the face of an entrapment defense. Our cases do not reach that far.

Generally, evidence of character, or of prior bad acts, is inadmissible when used to prove a defendant's propensity to commit the crime in question. Fed. R.Evid. 404. When the defendant raises an entrapment defense, however, such evidence becomes relevant. If the government has induced the defendant to break the law, "`the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.'" Thomas, 134 F.3d at 978 (quoting Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992)). The character of the defendant is one of the elements — indeed, it is an essential element — to be considered in determining predisposition. Id. at 978, 980. As ...