U.S. v. Sotelo-Murillo

• Decision Date: 04 October 1989
• Docket Number: No. 85-5291,D,SOTELO-MURILL,85-5291
• Citation: 887 F.2d 176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvadorefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 176

887 F.2d 176

UNITED STATES of America, Plaintiff-Appellee, v. Salvador SOTELO-MURILLO, Defendant-Appellant.

No. 85-5291.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 3, 1989.

Decided June 14, 1989.

As Amended Oct. 4, 1989.

Salvador Sotelo Murillo, Metropolitan Detention Center, Los Angeles, Cal., pro se.

Stephen Wolfe, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before FLETCHER, NELSON and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Sotelo was convicted of two counts of distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1). He appeals the conviction, arguing that the court erred in (1) failing to instruct the jury on the defenses of entrapment and outrageous government conduct; (2) failing to instruct the jury concerning the alleged felony conviction of a testifying government informant; and (3) admitting expert testimony relating to the typical life-style of brokers of Mexican brown heroin. Because the district court erred in failing to instruct the jury on entrapment, we reverse.

FACTS

Sotelo's arrest and conviction arose from a DEA sting operation in which Sotelo delivered heroin to DEA agents posing as narcotics purchasers. The sequence of events culminating in Sotelo's conviction began in February of 1985, when Rogaciano Correa, a paid informant of the DEA, telephoned Sotelo and arranged to meet him at a restaurant. Correa and Sotelo were born in the same town in Mexico, and had known each other for thirty-five years. However, before the meeting in February of 1985, they had not seen each other for seven or eight years.

A few weeks later, Correa again phoned and met Sotelo. According to Correa's testimony, during that meeting, Sotelo said that he sold large quantities of cocaine, heroin, and marijuana, and that he had a legitimate business which he used as a front for his drug trafficking. In April, Correa and Sotelo again met. On this occasion, Correa introduced Sotelo to an undercover DEA agent, who discussed with Sotelo the sale of 25 kilograms of cocaine. These negotiations fell through when Sotelo requested that the agent "front" the cocaine to him.

Correa and Sotelo met again in early August, and Correa informed Sotelo that he had long-time friends, a Colombian and a Cuban, who moved large quantities of drugs. According to Correa, Sotelo expressed an interest in meeting these friends. On August 19, Correa introduced Sotelo to one of these "friends," DEA Agent Efrain de Jesus. Sotelo informed de Jesus that he wanted to purchase cocaine, and inquired about the amount available, and the going price. When Sotelo complained about the quoted price, de Jesus said Sotelo would have to talk to de Jesus's "boss" to get a better price.

Later that evening, Sotelo met with de Jesus and a second DEA informant, Armando Barrios, who played the role of de Jesus's boss. While speaking with Barrios, Sotelo raised the subject of heroin. He informed them that he had 250 grams of heroin for sale as a sample. He took the sample from his pocket and passed it under the table to Correa, who gave it to the agents. Sotelo then told the agents that he was a broker, and proposed that the agents buy heroin from him before he would buy cocaine from them.

Over the next few days, Sotelo had Correa arrange a sale of 250 grams of heroin to the agents. The sale took place on August 23. Sotelo met the agents in a restaurant. After the agent flashed the purchase money to Sotelo, they arranged that Sotelo would send the heroin to the agents with Correa, and that after they tested it, they could send the money to Sotelo at a second restaurant. Correa delivered the heroin, and the agents arrested Sotelo at the second restaurant.

Sotelo's story is that he had loaned Correa $20,000 in 1979, and that he had been unsuccessful in getting the money back from Correa. In the February 1985 meeting, Sotelo asked Correa for the money. Correa allegedly told Sotelo that he worked for the DEA in Mexico, and would steal some cocaine to get the money. Sotelo testified that in the March 1985 meeting, Correa told Sotelo that he would be paid as soon as Correa's partner sold some cocaine that had been stolen in Mexico.

Sotelo also contends that Correa later approached him with the story that he had some friends who were big Colombian sellers. Correa allegedly asked Sotelo to pose as a purchaser of drugs. Sotelo testified that he initially refused, but ultimately relented when informed that it was the only way to get his money back. According to Sotelo, Correa was the source of the heroin sample provided to the DEA officer on August 19, and the package sold on August 23 was placed in Sotelo's truck by Correa. Sotelo contends that Correa told him he would not have to handle any drugs, and that the only thing he would have to do would be to pick up the money.

At the close of the defense's case, the trial judge stated that there had been no evidence of entrapment, and that no entrapment instruction would be given. The jury entered a verdict of guilty on both counts. Sotelo filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. Sec. 1291.

DISCUSSION

I. FAILURE TO GIVE AN ENTRAPMENT INSTRUCTION

It is well-settled that a criminal defendant is entitled to a jury instruction "on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988). See also United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir.1987) (a defendant is entitled to an instruction covering a theory of defense if it has a basis in law and there is some foundation for it in the evidence). Where a defendant's requested instruction is supported by some evidence, a trial court's failure to give it is reversible error. Yarbrough, 852 F.2d at 1541; United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir.1984) ("The right to have the jury instructed as to the defendant's theory of the case is one of those rights 'so basic to a fair trial' that failure to instruct where there is evidence to support the instruction can never be considered harmless error.") (citations omitted).

A defendant is entitled to an entrapment instruction if he or she can present some evidence that (1) a government agent induced him or her to commit an illegal act that (2) he or she was not predisposed to commit. United States v. Lee, 846 F.2d 531, 534 (9th Cir.1988). A defendant must present evidence on both elements of the defense, id., but only "slight evidence is needed to create a factual issue and get the defense to the jury." United States v. Fleishman, 684 F.2d 1329, 1949 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982) (emphasis added).

In this case, the district court determined that Sotelo's requested entrapment instruction was not warranted on the basis of the evidence presented. Sotelo contends that this was error. Before addressing the merits of Sotelo's claim, we address the proper standard of review.

A. Standard of Review

There is an apparent split in Ninth Circuit authority over the proper standard of review of the district court's determination that a jury instruction on the defendant's theory of the case is not warranted by the evidence. Some cases involving challenges to the district court's refusal to give entrapment instruction use an abuse of discretion standard. See, e.g., Lee, 846 F.2d at 534; United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986); Fleishman, 684 F.2d at 1349. However, in other cases we have held that a trial court's determination that the evidence was insufficient to justify an instruction on the defendant's theory of defense is a question of law, and as such is reviewed de novo. See United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir.1989) ("the issue of whether the evidence was sufficient to support the giving of a multiple conspiracies instruction should be subject to de novo review"); Ibarra-Alcarez, 830 F.2d at 973 (failure to instruct jury on good faith reliance on advice of counsel); United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986) (per curiam) (refusal to give self-defense instruction), cert. denied, 481 U.S. 1005, 107 S.Ct. 1628, 95 L.Ed.2d 201 (1987). See also United States v. Brandon, 633 F.2d 773, 778 (9th Cir.1980) (implicitly applying a de novo standard to refusal to give entrapment instruction).

An intra-circuit conflict may be resolved authoritatively only through en banc proceedings. Tornay v. United States, 840 F.2d 1424, 1427 n. 3 (9th Cir.1988); Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). If this case turned on the standard of review and we did not undertake en banc review, we would be faced with a situation in which we would have to "make an unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit." Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 636 (9th Cir.1988).

In light of United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), it would seem that a district court's decision that the evidence is sufficient to warrant an entrapment instruction should be subjected to de novo review. McConney holds that questions of law and mixed questions of fact and law in which legal issues predominate are reviewed de novo. 728 F.2d at 1201, 1203. We previously have recognized that whether a criminal defendant has presented sufficient evidence to warrant a jury instruction on entrapment is predominantly a legal question. See, e.g., Brandon, 633...