U.S. v. Santiago-Godinez

• Decision Date: 28 December 1993
• Docket Number: SANTIAGO-GODINE,D,No. 91-3479,91-3479
• Citation: 12 F.3d 722
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonioefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 722

12 F.3d 722

UNITED STATES of America, Plaintiff-Appellee, v. Antonio SANTIAGO-GODINEZ, Defendant-Appellant.

No. 91-3479.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 1993.

Decided Dec. 28, 1993.

Madeleine S. Murphy, Asst. State's Atty. (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Alan M. Freedman (argued), Freedman & Bornstein, Chicago, IL, for defendant-appellant.

Before COFFEY, MANION and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A two-count indictment charged Antonio Santiago-Godinez with conspiring to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846, and with knowingly and intentionally possessing and distributing approximately 1,999 grams of a mixture containing cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

The defendant filed a Motion for Disclosure of Favorable Information, ¹ and a Motion to Dismiss the Indictment should the government fail to produce the informant to testify on the issue of entrapment. In response, the government filed a motion in limine seeking to exclude evidence of entrapment from defendant's trial. The government argued that even if the informant testified to the facts proffered by the defendant, the proffer did not present evidence of extraordinary inducement necessary to establish an entrapment defense.

After a pretrial hearing, the district court granted the government's motion in limine, ruling that the proffered evidence did not establish entrapment as a matter of law and further ruled that it would not give an entrapment instruction. Thereafter, the defendant pleaded guilty to one count of conspiracy to distribute cocaine, but reserved the right to appeal the denial of the entrapment defense pursuant to the conditional plea provision of Federal Rule of Criminal Procedure 11(a)(2). ²

The sole issue on appeal is whether the trial court erred in granting the government's pretrial motion in limine and deciding the issue of entrapment as a matter of law, thereby, excluding presentation of evidence of entrapment to a jury.

I. BACKGROUND

The following facts are gleaned from the defendant's pretrial proffer of testimony on the issue of entrapment. Santiago-Godinez, has lived all his life in Chicago, Illinois, in the building of the family-run grocery store where he worked until it closed in 1988. After the store closed, Santiago-Godinez was unemployed aside from helping out at his sister's bar on the weekends until it also closed in late 1990. For about six months, Santiago-Godinez worked as a maintenance laborer at $7.68 per hour until he was laid off. His financial situation rapidly deteriorated, and by late November of 1990, Santiago-Godinez was financially destitute.

Government informant, Reuben Alcantar, whom the defendant had know since about 1987, owned a bar which Santiago-Godinez frequented when he was unemployed in early 1990. In approximately August of 1990, Alcantar asked the defendant if he knew anybody who could obtain large quantities of cocaine. Alcantar initially requested five kilograms but indicated that his people could buy as many kilograms as Santiago-Godinez could produce. Santiago-Godinez told Alcantar that he did not want to get involved. To which Alcantar responded, "C'mon, How long have we been friends? We're practically family." Alcantar told Santiago-Godinez that he knew people who would pay as much as $32,000 per kilogram, which Santiago-Godinez later learned from some friends was higher than the going rate of $27,000 or $28,000.

Santiago-Godinez also proffered that Alcantar would flaunt his wealth earned through drug-dealing and told Santiago-Godinez, "this is the kind of money you can have." Alcantar always carried a large quantity of cash and would often buy a round of drinks for everyone at the bar. Frequently he would drive by the bar in one of his three cars and wave. According to Santiago-Godinez, Alcantar stopped to see him about twice a week throughout the fall of 1990 and virtually each time, Alcantar would say that he needed the cocaine and would buy as much as Santiago-Godinez could obtain.

Santiago-Godinez claimed that he had rejected all of Alcantar's offers until November 30, 1990. On this date, Alcantar again approached Santiago-Godinez and told Santiago-Godinez that his people would purchase ten kilograms or more of cocaine a week and offered to pay more than the market price. He suggested that Santiago-Godinez could become very wealthy very quickly by doing business with him. With no other means of making the kind of money Alcantar was promising, Santiago-Godinez admitted that the promise of making more than $10,000 per week was very attractive, in particular at a time when he was financially destitute.

After this November 30th conversation with Alcantar, Santiago-Godinez checked with an acquaintance and learned that he could obtain two kilograms of cocaine for $26,000 each. Santiago-Godinez relayed this to Alcantar who agreed to purchase the cocaine at $27,500 per kilogram. Alcantar then telephoned the alleged buyer and conveyed a price of $28,500 per kilogram. At the conclusion of the telephone call, Santiago-Godinez expressed reluctance to become further involved because he could not understand why Alcantar added money to the purchase price. Alcantar explained that the extra money was to be his profit, but he would give it to Santiago-Godinez to "sweeten" the deal. Alcantar also reminded Santiago-Godinez that his people were interested in future weekly cocaine deals. Santiago-Godinez then agreed to commence the deal.

On December 3, 1990, Santiago-Godinez and Jesus Perez met with Special Agent Tovar of the Drug Enforcement Administration ("DEA") who was acting undercover and agreed to sell agent Tovar two kilograms of cocaine. Santiago-Godinez gave agent Tovar the time and location where the transaction was to take place and further instructed that agent Tovar was to pay Santiago-Godinez $2,000 and the remaining $55,000 was to be paid to Perez. At the specified time and location, Perez displayed two bricked-shaped packages containing approximately two kilograms of cocaine to agent Tovar. Both Perez and Santiago-Godinez were arrested at the scene.

II. ANALYSIS

A. Standard of Review

As a threshold matter, we must determine the appropriate standard of review. The government characterizes the trial court's decision as an evidentiary ruling that the proffered evidence would be irrelevant on the issue of entrapment and argues that it should be reviewed under the abuse of discretion standard. ³

Santiago-Godinez contends that the trial court's refusal to allow an entrapment defense should be reviewed de novo. This is the standard applied to review a district court's refusal to instruct the jury on entrapment, United States v. Casanova, 970 F.2d 371, 374 (7th Cir.1992); United States v. Marren, 890 F.2d 924, 930 (7th Cir.1989), and is the appropriate standard to review an analogous pretrial determination that the defendant has not presented sufficient evidence to raise the defense of entrapment. See United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir.1991) ("A district court's determination that there exists no evidence sufficient to raise a valid defense of entrapment is analogous to a determination that a jury instruction relating to a defendant's theory of the case is not warranted by the evidence"); United States v. Fadel, 844 F.2d 1425, 1434 (10th Cir.1988) ("Whether there is sufficient evidence to constitute a triable issue of entrapment is a question of law, reviewable ... on a de novo basis"); see also United States v. Wright, 921 F.2d 42, 44 (3d Cir.1990) (district court's refusal to instruct on the issue of entrapment on the ground that the defendant presented no evidence showing a lack of predisposition reviewed de novo ), cert. denied, --- U.S. ----, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991). Santiago-Godinez presents the better argument. The legal sufficiency of a proffered defense is a question of law and therefore is reviewed de novo.

B. Sufficiency of Evidence to Present Issue to Jury

In ruling on the government's pretrial motion in limine, the district court found that evidence proffered by Santiago-Godinez (and taken as true) was insufficient as a matter of law to entitle the defendant to raise an entrapment defense. On this basis the court held that it would not give an entrapment instruction:

[M]y problem with your proffer is maybe a few thousand dollars is a lot to a guy who is broke but, whether he is broke or not, I can't see anything in here that makes this extraordinary. There is a lot of money to be earned in drug deals, everybody knows it, and the fact that in this first deal he is going to get a couple grand plus whatever his little ordinary split is just doesn't strike me as extraordinary. It isn't even close.

. . . . .

I don't think there is enough to take it to the jury.

. . . . .

and I don't see the fact that he is going to give him a source that is going to allow this dealing to go on for a long time at the sort of little additional amount more than the normal profit to be what Judge Posner is talking about [in United States v. Evans, 924 F.2d 714, 717 (7th Cir.1991) ].

The issue of whether there is sufficient evidence of entrapment to support submission of that defense to a jury typically arises after the evidence has been received at trial. "[U]nless it 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). So, generally the question of entrapment is one for the jury, rather than for the court. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). And whether or not an entrapment defense is available to a...