U.S. v. Sarmiento, s. 85-1132

• Decision Date: 04 April 1986
• Docket Number: 85-1137,Nos. 85-1132,s. 85-1132
• Citation: 786 F.2d 665
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anibal SARMIENTO, a/k/a Pedro, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 665

786 F.2d 665

UNITED STATES of America, Plaintiff-Appellee, v. Anibal SARMIENTO, a/k/a Pedro, Defendant-Appellant.

Nos. 85-1132, 85-1137.

United States Court of Appeals, Fifth Circuit.

April 4, 1986.

S. Michael McColloch, David W. Coody, Dallas, Tex., for defendant-appellant.

Robert R. Smith, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, HILL and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

This is an appeal from two convictions for violation of federal drug laws. The first is a jury conviction for conspiracy to possess with intent to distribute and to distribute cocaine and for using a telephone to facilitate distribution of cocaine. 18 U.S.C. Sec. 2, 21 U.S.C. Secs. 841(a)(1), 843(b), 846. The second is the result of a plea of guilty to the charge of using a communication facility in a conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 843(b). Appellant asserts that the court erred in failing to instruct the jury on the entrapment defense to the first charge, and that it erroneously approved his guilty plea, misapplying Fed.R.Crim.P. 11(a)(2), with respect to the second conviction. Finding no error we AFFIRM both convictions.

Special governmental agents negotiated with Appellant, Anibal Sarmiento, and co-defendants Shapiro and Calva for the purchase of cocaine. The transaction unfolded when a government informant introduced Shapiro to DEA agent Chester on February 13, 1984, and Chester expressed an interest in buying cocaine. The next day, Shapiro talked with Chester and proposed a sale of ten kilos. During the following week several phone calls were made and recorded concerning the sale. On February 23, Shapiro and Calva met over lunch with Chester and FBI agent Steging at a restaurant in Dallas. According to FBI agents watching the scene, Sarmiento was present at another table, and he did not meet either Chester or Steging. At a nightclub that evening, however, according to the agents' testimony, Sarmiento was introduced to them as the "manufacturer's representative." Sarmiento told them that from now on they would be dealing directly with him, explained the professionalism of his company, and said he wished to have long-term customers by keeping the percentage of cocaine high.

On February 27, Shapiro notified Chester that the cocaine had arrived, but Chester did not yet have the money available. Later that evening Shapiro again spoke with Chester informing him that the cocaine had been tampered with. Over the next three days, the parties renegotiated the sale. Four of their telephone conversations were between Sarmiento and Steging, and three of those were tape recorded. When the agents told Shapiro and Calva that "their organization" was unhappy that the deal was not going smoothly, Sarmiento offered to procure a small amount of cocaine for Steging, and on March 2, Shapiro delivered 2.5 grams of cocaine to Chester and Steging. Steging testified that Sarmiento effectuated the delivery. These facts outline the prosecution evidence which concluded with a jury verdict of guilty.

The second indictment, to which Sarmiento pleaded guilty, was the result of telephone calls between Sarmiento and special agent Garcia in Puerto Rico revealing a conspiracy to possess with intent to distribute 3.55 grams of cocaine. This indictment, returned in Puerto Rico, was transferred to the Northern District of Texas where the former indictment originated.

With respect to both convictions, Sarmiento attempts to raise the defense of governmental entrapment. This court has recently determined en banc when a defendant is entitled to a jury instruction on a possible defense of entrapment. United States v. Henry, 749 F.2d 203 (5th Cir.1984) (en banc),

In order for a defendant to be entitled to entrapment instructions and to have the jury decide his entrapment defense, the record must contain evidence from which the jury could find (1) governmental inducement that might cause one to act criminally where he otherwise would not and (2) the accused's lack of intent, before contact by governmental agents, to commit the crime charged.

Id. at 207. A defendant who wishes to assert an entrapment defense must come forward with evidence "that the Government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it." United States v. Webster, 649 F.2d 346, 349 (5th Cir.1981) (en banc). If the defendant clears this hurdle, then the burden shifts to the Government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id.

Having carefully reviewed the trial court record, we do not find any evidence that supports the defendant's initial burden. See United States v. Stanley, 765 F.2d 1224 (5th Cir.1985).

Sarmiento offers as evidence of inducement that the government agents initiated the transaction offering large sums of money and curried sympathy by suggesting they might be harmed by their fictitious boss "Big Jim" if Sarmiento did not deliver. Further, the telephone tapes allegedly reveal some reluctance by Sarmiento to complete the deal. The latter two factors came into play only after Sarmiento had agreed to sell cocaine to the agents. The former is overborne by the fact that the government agents did not even know that Sarmiento existed prior to being introduced to him by his co-defendants. They had been led to expect that another man was the supplier of the co-defendants. This was a first time offense by the defendant and the government had no evidence that he had ever been involved in cocaine dealings. Nevertheless, the government agents' active negotiations merely entailed consummating a sale of illegal drugs that was clearly contemplated by Sarmiento and the agents at their initial meeting.

Sarmiento next argues that even if government agents did not directly induce him to commit the offense, they did so through his co-defendants as knowing or unknowing intermediaries. He concedes that in this circuit, entrapment "cannot result from the inducements of a private citizen but must be the...