U.S. v. Varela, Nos. 91-50815

• Decision Date: 10 August 1993
• Docket Number: 92-50233,Nos. 91-50815
• Citation: 993 F.2d 686
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Allen VARELA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 686

993 F.2d 686

UNITED STATES of America, Plaintiff-Appellee, v. Mark Allen VARELA, Defendant-Appellant.

Nos. 91-50815, 92-50233.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 3, 1993.

Decided May 17, 1993.

As Amended June 9, and Aug. 10, 1993.

Jerry D. Whatley, Santa Barbara, CA, for defendant-appellant.

John Shepard Wiley, Jr., Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are called upon to decide, among other things, whether a conviction that is expungeable under state law but that has never been formally expunged from the defendant's record can be a predicate offense under the federal felon in possession of a handgun statute, and whether that conviction may be considered in setting the criminal offense level under the Sentencing Guidelines.

I

During the seven months between October 1990 and April 1991, Varela entered into several narcotics transactions with an undercover agent. Varela agreed to sell, and did sell, methamphetamines, cocaine, and marijuana to the agent. Varela also sold the agent semi-automatic firearms.

Varela advised the agent that he had several suppliers for the drugs. The agent met three of them: "Victor," Pulido, and Hernandez. Pulido and Hernandez were arrested along with Varela, and eventually pleaded guilty to the charges against them.

Varela was charged in two separate indictments with one count of conspiracy with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1); three counts of possession with intent to distribute cocaine, two counts of distributing cocaine, and three counts of distributing methamphetamine, all in violation of section 841(a)(1); and two counts of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The indictments were consolidated for trial. However, the district court severed the firearms charges for a separate trial so that the jury in the drug trial would not learn of Varela's prior felony. Varela was found guilty on all counts in both trials.

The district court sentenced Varela to 262 months imprisonment, the minimum within the Guidelines range, and imposed a $25,000 fine and 5 years of supervised release. Varela challenges his convictions, arguing (1) with regard to the drug convictions, that the district court's entrapment instruction was erroneous and (2) with regard to the firearm possession convictions, that the district court erred in not dismissing the firearm possession counts because the predicate conviction has been expunged. Varela also challenges his sentence, arguing (1) that the district court erred in enhancing his offense level on the basis of his role in the offense and (2) that the district court erred in considering an expunged conviction in calculating his criminal history level.

II

We first consider Varela's challenges to his convictions.

A

Varela argues that the supplemental instruction regarding entrapment was flawed because it did not clearly indicate that the government bears the burden of proving beyond a reasonable doubt that the defendant was not entrapped.

"The defense of entrapment has two elements: (1) the defendant was induced to commit the crime by a government agent, and (2) he was not otherwise predisposed to commit the crime." United States v. Barry, 814 F.2d 1400, 1401 (9th Cir.1987). "When the defendant presents some evidence of both elements of the defense, the burden shifts to the prosecution to prove beyond a reasonable doubt either that there was no inducement or that the defendant was predisposed to commit the crime." United States v. Hoyt, 879 F.2d 505, 509, amended, 888 F.2d 1257 (9th Cir.1989).

In this case, the district court gave the following instructions regarding entrapment:

In order for the defendant to be found guilty of distributing methamphetamines ... the government must prove each of the following elements beyond a reasonable doubt.

First, the defendant intentionally delivered methamphetamines to the government agent.

Second, the defendant knew that it was methamphetamines or some other prohibited drug.

Third, that the defendant was not entrapped by the government into committing the crime.

. . . . .

A person is entrapped when the person has no previous intention to violate the law and is persuaded to commit a crime by government agents. On the other hand, where a person is already willing to commit a crime, it is not entrapment if government agents merely provide an opportunity to commit the crime.

During deliberations, the jury submitted a note to the court, asking for a clarification of the instruction regarding entrapment. The note asked: "Is the clause in line 2, 'no previous intention,' contradicted or overridden by the clause 'willing to commit' in line 4?" The district court responded with the following supplemental instruction With regard to instruction 32 on entrapment, the basic concept is that there is no entrapment where the defendant was quote predisposed unquote, or already willing to commit the offense. And the government provides the opportunity to commit the offense. Entrapment may exist only where the defendant had no such predisposition and the idea of committing the crime was placed in his mind by government persuasion. The instructions following No. 32 will also give you guidance on approaching the question of entrapment. All instructions are of course to be considered as a whole.

Varela argues that this supplemental instruction was an abuse of discretion because it failed to emphasize that the government bears the burden of proving that the defendant was not entrapped. The government contends that Varela did not object to the instruction on burden of proof grounds before the district court and thus that the proper standard of review is plain error. "To preserve the right to appellate review ... [of a jury instruction, the defendant] must have objected properly in the district court." United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). "Federal Rule of Criminal Procedure 30 prohibits a party from assigning error 'unless that party objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which that party objects and the grounds of the objection.' " Id. (quoting Fed.R.Crim.P. 30). A general objection to the instruction does not suffice to preserve the issue on appeal.

Varela did not properly object to the instruction on burden of proof grounds before the district court. The district court thoroughly discussed the proposed instruction with defense counsel, repeatedly asking counsel if he had any problems with it. Counsel made no specific objection to the proposed language; instead he answered that he believed that the court should simply answer the jury's question with a simple "yes" or "no." At no time did the defense counsel mention the burden of proof. Furthermore, the court reiterated several times that it would be willing to consider any alternate formulation that Varela would prefer; Varela proposed no alternative.

Where, as here, the defendant does not properly object to the instruction, stating specifically the grounds for the objection, the instruction is reviewed for plain error. Kessi, 868 F.2d at 1103. "Plain error is 'highly prejudicial error affecting substantial rights[,] and is found only in exceptional circumstances.' " Id. (quoting United States v. Harris, 738 F.2d 1068, 1972 (9th Cir.1984)). "It must be highly probable that the error materially affected the verdict." Kessi, 868 F.2d at 1103.

We conclude that the instruction is not erroneous at all, let alone plain error. In reviewing a jury instruction, we must determine "whether the jury instructions as a whole are misleading or inadequate to guide the jury's deliberations." United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991) (emphasis added). Here, the district court clearly instructed the jury in the original instruction that the burden of proving entrapment rests on the government. The district court's failure to emphasize the burden of proof in the supplemental instruction did not render the instructions, when viewed as a whole, inadequate.

Varela attempts to analogize to Notaro v. United States, 363 F.2d 169, 173, 175-76 (9th Cir.1966), in which this court concluded the district court's formulation of the entrapment instructions, when taken as a whole, could be read as assigning the burden of proof to the defendant instead of to the government. The Notaro instruction was as follows:

If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment.

On the other hand, if the jury should find from the evidence in the case that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense and a jury should acquit the defendant.

Id. at 173 (emphasis added and deleted). The court held that the instruction was improper because it was "reasonably probable" that the jurors would have believed that the second paragraph placed the burden of proof on the defendant to prove the elements of the defense. A juror could interpret the second paragraph to mean that a defendant is only entitled to the entrapment defense if the jury makes the finding described in the paragraph, when in fact the defendant is also entitled to...