U.S. v. Mkhsian

• Decision Date: 27 September 1993
• Docket Number: Nos. 91-50462,91-50472,91-50515,s. 91-50462
• Citation: 5 F.3d 1306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manouk MKHSIAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Abram MELIKSETIAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andranik SOGOYAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1306

5 F.3d 1306

26 Fed.R.Serv.3d 1196

UNITED STATES of America, Plaintiff-Appellee, v. Manouk MKHSIAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Abram MELIKSETIAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Andranik SOGOYAN, Defendant-Appellant.

Nos. 91-50462, 91-50472, 91-50515.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1993.

Decided Sept. 27, 1993.

William J. Genego, Santa Monica, CA, for defendant-appellant Mkhsian.

Andrew French Loomis, Oakland, CA, for defendant-appellant Meliksetian.

Richard H. Kirschner, Los Angeles, CA, for defendant-appellant Sogoyan.

Karin J. Immergut, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before: FLETCHER, POOLE, and THOMPSON, Circuit Judges.

FLETCHER, Circuit Judge:

Appellants Mkhsian, Meliksetian, and Sogoyan appeal their convictions for violating 21 U.S.C. Secs. 846, 841(a)(1) (conspiracy to possess cocaine with intent to distribute) and 21 U.S.C. Sec. 841(a)(1) (possession of cocaine with intent to distribute). Meliksetian and Sogoyan also appeal their sentences. We have jurisdiction over appellants' timely appeals pursuant to 28 U.S.C. Sec. 1291. We affirm Meliksetian's conviction and sentence, but, because the entrapment instructions given to the jury were erroneous, we reverse Mkhsian's and Sogoyan's convictions and remand for a new trial.

I.

Appellants are Armenian-Americans who, prior to their convictions, resided in the greater Los Angeles area. In June 1990, the FBI asked Richard Stanton, a previously utilized informant, to contact Manouk "Mike" Mkhsian, who the government believed was laundering money. Stanton was directed to present himself as a money launderer and narcotics organization pilot with good connections in Belize and other Central American countries.

Over time, the FBI's investigation evolved into a "reverse sting" narcotics operation. Mkhsian introduced Stanton to Andranik "Andy" Sogoyan and Abram "George" Meliksetian. Eventually, Mkhsian, Sogoyan, and Meliksetian agreed to purchase five kilograms of cocaine from Stanton's "Colombian" sources. Meliksetian, the intended distributor, was arrested when he picked up the cocaine at a Long Beach Holiday Inn parking lot. Mkhsian and Sogoyan surrendered themselves approximately one week later.

The government argued that appellants were sophisticated cocaine dealers, with prior distribution experience, who were anxious to establish a distribution network in Los Angeles. In negotiations with an FBI agent who posed as an accountant for the fictitious Colombian drug cartel, appellants spoke in code and, right up to the end, seemed aggressive and self-assured.

Mkhsian and Sogoyan claimed that they were entrapped by the government. In particular, they pointed to their testimony that Stanton befriended them, represented himself as a "father figure" who would protect their interests, and that they tried to back out of the deal but were told by Stanton that the "Colombians" were "wild" and withdrawal "would be bad" for them. Stanton, they argued, knew about their financial troubles, pushed the drug deal from the start, and did everything in his power to see it consummated.

Meliksetian testified that he got involved, meeting with Stanton and the FBI "accountant," only because he wanted to help Mkhsian, who had gotten in over his head. When Mkhsian and Sogoyan wanted to pull out of the deal, Meliksetian testified that he told them that he would "take care of this thing" and that "[t]his will end in a good way." His plan, he told the jury, was to pick up the cocaine and call the FBI. When arrested, he was carrying an address book containing an FBI agent's telephone number.

II.

A.

Mkhsian and Sogoyan argue that they were entrapped as a matter of law. ¹ There are two elements to the defense of entrapment: (1) "government inducement of the crime," and (2) "the absence of predisposition on the part of the defendant." United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992).

The entrapment issue is ordinarily one for the jury to resolve. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54 (1988); United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). That is, unless entrapment can be decided as a matter of law, "the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman v. United States, 356 U.S. 369, 377, 78 S.Ct. 819, 823, 2 L.Ed.2d 848 (1958); see alsoUnited States v. Griffin, 434 F.2d 978, 981 (9th Cir.1970), cert. denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971).

To justify an acquittal as a matter of law, Mkhsian and Sogoyan "must point to 'undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act' by government agents." Skarie, 971 F.2d at 320 (emphasis added) (quoting United States v. Hart, 963 F.2d 1278, 1283 (9th Cir.1992) (quoting United States v. Smith, 802 F.2d at 1124)). The record here shows the evidence to be in dispute.

Stanton's version of events, detailing his initial contacts with Mkhsian and Sogoyan, contrasts markedly with Mkhsian's and Sogoyan's testimony. It is far from "patently clear" that Stanton, the government's agent, induced Mkhsian's and Sogoyan's participation in the cocaine scheme. There are evidentiary disputes on nearly every detail of the first meetings among the three individuals. "[T]he resolution of such conflicting assertions of fact relevant to the entrapment issue is a credibility question for the jury." Griffin, 434 F.2d at 981. The vastly different versions of events related at trial forecloses a determination that, as a matter of law, the government induced Mkhsian and Sogoyan to purchase illegal narcotics.

Mkhsian's and Sogoyan's failure to point to undisputed evidence that they were induced makes it unnecessary to consider whether lack of predisposition was established as a matter of law. SeeSimas, 937 F.2d at 462 (where record devoid of evidence of inducement, no consideration of predisposition issue required). We reject their entrapment as a matter of law claims.

B.

Mkhsian and Sogoyan also contend that the instructions given the jury on entrapment misstated the law as set forth in Jacobson v. United States, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), and Skarie. ² They correctly argue that the instructions did not tell the jury that the government was required to show that they were predisposed to commit the illegal acts prior to the initial contact by government agents. Jacobson, --- U.S. at ----, 112 S.Ct. at 1540 (proving predisposition requires government to show "defendant was disposed to commit the criminal act prior to first being approached by [g]overnment agents"); Skarie, 971 F.2d at 320 (same).

The decisions in Jacobson and Skarie were announced while the direct appeals in these cases were pending. The government admits that the entrapment instruction given "did not explicitly state that where the defendant presents evidence of inducement, the government must show evidence of predisposition before any contact with law enforcement." E.g., Red Brief (MM) at 36 (emphasis added). The instructions given stated that

[i]n this case, each defendant asserts that he was a victim of entrapment as to the offenses charged in this indictment. Where a person has no previous intent or purpose to violate the law but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment and, as a matter of policy, the law forbids his conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.

RT 5/8/91 at 1167. ³

Neither Mkhsian nor Sogoyan objected to this instruction. In fact, Mkhsian proffered an instruction similar to the one given. ⁴ Nonetheless, review is appropriate under United States v. Kimball, 896 F.2d 1218, 1219 (9th Cir.1990), vacated, in part, 925 F.2d 356 (9th Cir.1991) (en banc), and Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Kimball, we noted three exceptions to the general rule that an issue raised for the first time on direct appeal will not be considered: (1) when review of the issue is required "to prevent a miscarriage of justice or to preserve the integrity of the judicial process"; (2) when the issue arises by virtue of a change in law while the appeal is pending; or (3) when the issue to be reviewed is purely legal. Kimball, 896 F.2d at 1219. Griffith recognizes that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith, 479 U.S. at 328, 107 S.Ct. at 716; see alsoBrecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1720, 123 L.Ed.2d 353 (1993) ("new rules always have retroactive application to criminal cases on direct review"); United States v. Montoya, 945 F.2d 1068, 1070-71 (9th Cir.1991) (jury instructions did not adequately define element of offense as required by Supreme Court decision announced after the jury's verdict; on direct appeal, standards announced in subsequent Supreme Court decision apply) (citing Griffith ).

The Court's determination in Jacobson that it is the government's burden (once evidence of inducement is shown by the defendant) to prove that the defendant "was predisposed to violate the law before the [g]overnment intervened," Jacobson, --- U.S. at ---- n. 2, 112 S.Ct. at 1541 n. 2, changed the law in this circuit. Accordingly, we will review on appeal the...