U.S. v. Rodriguez, 87-1917

• Decision Date: 29 July 1988
• Docket Number: No. 87-1917,87-1917
• Citation: 858 F.2d 809
• Parties: UNITED STATES of America, Appellee, v. Felix RODRIGUEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 809

858 F.2d 809

UNITED STATES of America, Appellee, v. Felix RODRIGUEZ, Defendant, Appellant.

No. 87-1917.

United States Court of Appeals, First Circuit.

Heard July 29, 1988.

Decided Oct. 7, 1988.

John J. Barter, Boston, Mass., by Appointment of the Court, for defendant, appellant.

Mitchell D. Dembin, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

On January 20, 1987, a federal grand jury indicted defendant-appellant Felix Rodriguez on drug-related charges. ¹ He was later found guilty on both counts. Following imposition of sentence, Rodriguez appealed. His principal assignment of error questions the district court's refusal to charge the jury on entrapment. He also claims that there was an impermissible imbrication--which he calls "duplicitousness" ²--involving the two counts, thereby transgressing the Fifth Amendment's double jeopardy clause.

I. BACKGROUND

In early 1987, appellant was employed in the meat department of the Hilo Food Market. On January 15, his co-worker, Luis Zayas, introduced him to Andres Cepero. Unbeknownst to appellant, Cepero was a government informant who had agreed to cooperate with the federal Drug Enforcement Administration (DEA) following his own arrest on drug charges. The initial conversation between Rodriguez and Cepero took place out of the earshot of others. It was not recorded. At trial, the two participants gave conflicting accounts of what was said. Cepero's version was along the following lines:

Felix Rodriguez told me ... that he didn't have at that moment ... a kilo of cocaine but that he was going to try and get one. He gave me [his] phone number and ... told me [to call him] at home after four.

* * *

* * * Felix Rodriguez told me that while we were talking on the phone not to call the cocaine "cocaine," that we were to refer to a small cassette for $14.50 which is half a kilo, and one kilo was going to be a big cassette for $28.00.

* * *

* * *

[Rodriguez also said that] I was to call him but that I shouldn't give [his] telephone number to anybody.

1 Trial Transcript (T.) at 15-17.

Rodriguez's report of the same conversation was markedly different. He claimed to have been considerably less sequacious. Cepero, he testified:

asked me if I could get ... him a pound of sirloin.... I asked him what sort of meat [he wanted]. And then when I was showing him the meat, he said, no, that's not the type of meat I'm looking for.... So he told me what he was looking for was drugs ... and I said I didn't have drugs. I didn't know anybody who dealt in drugs.

* * *

* * *

I told him, no, I don't sell drugs, and I don't know where you can get drugs.

* * *

* * *

He told me that if I could get it for him, I wouldn't have any problems because he would tell me how to make the arrangements so that I wouldn't have any problem.

* * *

* * *

I told him that, no, I didn't deal in these things and that I didn't know who sold the stuff.

* * *

* * *

He went on insisting and he said if I helped him get half a kilo of cocaine or one kilo of cocaine that I would earn the type of money I couldn't earn at work.

* * *

* * *

I told him I didn't know, and so he went on insisting and he said, look, with this you could earn more or less up to $1000, and you would never make this money working here. Well, I told him, I know a guy who is a friend of mine.... I'm going to talk to [him] to see if he can help you out because the truth is that I don't sell this, and I'm not involved in this, and I don't know if he could help you, but I could see him and ask him.

2 T. at 73-75. Rodriguez further testified that he then relented to the extent of giving Cepero his telephone number "so that he could inquire whether my friend could get it." Id. at 76.

Between the time of this initial conversation and Rodriguez's arrest the following day, Cepero telephoned Rodriguez four times. All of their telephone conversations, as well as their face-to-face exchanges on January 16, were recorded by Cepero at the DEA's behest. Consequently, the contents of those discussions are not in dispute. In the first conversation, appellant told Cepero that he had made a call to see about getting the "cassette," and was awaiting a response. ³ Cepero called back. Upon appellant's statement that he had located a "good cassette," the informer asked to purchase a "big cassette" (a kilogram of cocaine). Appellant told Cepero to call again in half an hour; he would then specify where the goods would be provided. The next call was answered by a woman who said that Rodriguez was unavailable. Later that evening, Cepero and appellant spoke once more. They agreed to meet at the market on the following day so that appellant's source could make the delivery.

The meeting began as scheduled. The men trooped to the market's parking lot, where appellant introduced Cepero to one Rubil Nova. Having performed this amenity, Rodriguez returned to work, leaving the two together. Later that afternoon, Cepero sought out Rodriguez and inquired why Nova had not yet returned with the narcotics. At that precise moment, Nova came into view. Rodriguez accompanied Cepero as far as the supermarket's entrance. From there, Cepero journeyed forth alone to meet Nova and appellant went back to work. Cepero transferred the cocaine from Nova's car to his own car, at the latter's instruction. The pair then entered Nova's vehicle. The denouement followed swiftly: Cepero signalled the waiting DEA agents, Nova and Rodriguez were arrested, and the cocaine was confiscated.

II. ENTRAPMENT

Without further ado, we turn to appellant's flagship claim: that the district court wrongfully refused to charge the jury on his main theory of defense.

A. Standard of Review.

The decisions are in some disarray as to the criterion to be used in reviewing a district court's failure to give a jury instruction on entrapment. At least one circuit applies an "abuse of discretion" standard. See United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). We disagree.

It is hornbook law that an accused is entitled to an instruction on his theory of defense so long as the theory is a valid one and there is evidence in the record to support it. See United States v. Silvestri, 790 F.2d 186, 192 (1st Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986); United States v. Zeuli, 725 F.2d 813, 817 (1st Cir.1984). In determining whether that is the case, the district court is not allowed to weigh the evidence, make credibility determinations, or resolve conflicts in the proof. Rather, the court's function is to examine the evidence of record and the inferences reasonably to be drawn therefrom to see if the proof, taken most hospitably to the accused, can plausibly support the theory of defense. In that sense, the district court's task bears a resemblance to its function in determining whether or not a directed verdict or judgment of acquittal should be ordered. See, e.g., Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987) (directed verdict); United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.) (judgment of acquittal), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). Because such a decision entails not differential fact-finding, but merely an inquiry into the legal sufficiency of the evidence, the standard of appellate review, it seems to us, should be plenary. Accord United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986); see also United States v. Nations, 764 F.2d 1073, 1080-81 (5th Cir.1985) (applying plenary standard of review sub silentio).

B. Historical Perspective.

The defense of entrapment has two elements: (1) government inducement of the accused to engage in criminal conduct, and (2) the accused's lack of predisposition to engage in such conduct. Mathews v. United States, --- U.S. ----, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Polito, 856 F.2d 414, 415-16 (1st Cir.1988); United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987). In Mathews, the Court reminded us that predisposition is "the principal element in the defense of entrapment," Mathews, 108 S.Ct. at 886 (quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)), and that it "focuses upon whether the defendant was an 'unwary innocent' or instead, an 'unwary criminal'...." Id. Although "[t]he question of entrapment is generally one for the jury," id., that is not invariably so. Entrapment comes into play only when the accused has successfully carried what we have termed an "entry-level burden." Coady, 809 F.2d at 122. To bear that burden, defendant must proffer some preliminary showing "that a government agent turned him from a righteous path to an iniquitous one." Id.

Some twenty years ago, we plotted the continuum along which the entry-level burden falls: "the amount [of evidence] need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal, but it must be more than a mere scintilla." Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967) (citations omitted). We know that the "initial showing necessitates some evidence on each of the two prongs of the [entrapment] defense: inducement and unreadiness." Polito, at 416. Yet, the precise dimensions of this burden of production remain inexact; we have established "no bright-line rule in this circuit as to the quantum of proof which will enable the proponent to cross the threshold and warrant a charge to the jury on entrapment." Id. at 416. Our opinions, by and large, have nibbled around the definitional edges, often instructing by negative implication. They teach us, for instance, that an "accused's subjective belief that the authorities will welcome his criminality" is insufficient. Polito, at 417. So...