United States v. Isnadin

• Decision Date: 12 February 2014
• Docket Number: No. 12–13474.,12–13474.
• Citation: 742 F.3d 1278
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Esnel ISNADIN, Kamensky Gustama, Jolens Cius, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

742 F.3d 1278

UNITED STATES of America, Plaintiff–Appellee,

v.Esnel ISNADIN, Kamensky Gustama, Jolens Cius, Defendants–Appellants.

No. 12–13474.

United States Court of Appeals, Eleventh Circuit.

Feb. 12, 2014.

Laura Thomas Rivero, Wifredo A. Ferrer, Lisa Tobin Rubio, Anne Ruth Schultz, Brent Tantillo, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Hector L. Flores, Barzee Flores, Miami, FL, for Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No: 0:12–cr–60018–WPD–3.

Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR,^* District Judge.

PROCTOR, District Judge:

It has been said the first rule of modern warfare is, “Don't bring a knife to a gun fight.” In this case, an undercover ATF ¹ agent made contact with two of the Appellants in this case, Jolens “Blunt” Cius and Kamensky Gustama, and offered them an opportunity to rob a stash house. ² In doing so, the agent made clear that those who guarded the controlled substances were armed. Therefore, when Cius and Gustama explored alternative approaches to an armed robbery, the agent offered a similar warning about the need for weapons: “You got to [expletive deleted] rob them, bro.” At trial, Cius and Gustama, along with their co-Appellant Esnel Isnadin, claimed they were entrapped. This appeal follows their conviction on some, but not all, of the charges in the indictment.

Cius, Gustama, and Isnadin raise a number of challenges to their respective convictions. Cius and Gustama ³ contend that the district court's response to a question posed by the jury instructing them to consider the entrapment defense separately and individually as to each count was erroneous. Gustama also argues that the evidence was insufficient to support his convictions and that he was entrapped as a matter of law, and thus the district court erred in granting his motions for a directed verdict. Additionally, Isnadin maintains that his convictions should be vacated because he was a victim of derivative entrapment. After thorough review, and with the benefit of oral argument, we conclude that (1) the district court did not abuse its discretion when it instructed the jury to consider entrapment separately as to each count, and (2) sufficient evidence supports the convictions. Accordingly, we affirm.

I. BACKGROUND

A. Procedural History

In March 2012, a federal grand jury in the Southern District of Florida returned a nine-count superseding indictment. Count 1 of the superseding indictment charged the Appellants Cius, Gustama, and Isnadin, and their codefendant Marcus McKnight with conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).⁴ Count 2 charged Cius, Gustama, Isnadin, and McKnight with conspiracy to possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), ⁵(b)(1)(A),⁶ and 846.⁷ Count 3 charged them with attempting to possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Count 4 of the superseding indictment further charged Cius, Gustama, Isnadin, and McKnight with conspiracy to use and carry a firearm during and in relation to the crime of violence charged in Count 1, and during and in relation to the drug trafficking crimes charged in Counts 2 and 3, in violation of 18 U.S.C. §§ 924(c)(1)(A) ⁸ and 924( o ).⁹ Count 5 charged them with carrying a firearm during and in relation to the crime of violence charged in Count 1, and during and in relation to the drug trafficking crimes charged in Counts 2 and 3, in violation of 18 U.S.C. §§ 924(c)(1) and 924(c)(2).¹⁰ In Counts 6, 7, 8, and 9, Cius, Gustama, Isnadin, and McKnight, respectively, were individually charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ¹¹ Cius, Gustama, and Isnadin each pleaded not guilty to all counts and went to trial. McKnight entered a plea of guilty to Counts 1 and 5. ¹²

At the close of the prosecution's case and at the close of all the evidence, the court denied the Appellants' motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The prosecutor and the Appellants' respective trial counsel discussed the entrapment defense during their closing arguments. The prosecution objected to the Appellants' requested entrapment instruction but did not object to the court giving the jury the standard entrapment instruction. See Eleventh Circuit Special Pattern Jury Instruction (Criminal Cases) 13.2 (2010). The district court gave the pattern instruction, explaining to counsel that it better stated the law. In addition to providing the standard entrapment instruction, the district court also gave the pattern instruction regarding how to consider the different counts and the different defendants named in the indictment. See Eleventh Circuit Basic Instruction (Criminal Cases) 10.4 (2010).

The jury found Cius guilty as to Count 2 of a lesser included offense involving 500 grams or more of cocaine; guilty as to Count 4; and not guilty as to Counts 1, 3, 5, and 6. The jury found Gustama guilty as to Count 2 of a lesser included offense involving 500 grams or more of cocaine; guilty as to Count 4; and not guilty as to Counts 1, 3, 5, and 7. The jury found Isnadin guilty as to Count 2 of a lesser included offense involving 500 grams or more of cocaine; guilty as to Counts 4, 5, and 8; and not guilty as to Counts 1 and 3.

Cius, Gustama, and Isnadin now raise several issues on appeal. Before analyzing the merits of their arguments, it is necessary to outline in some detail the underlying facts leading to the Appellants' arrests, the district court's original instruction, and the district court's supplemental instruction regarding entrapment, which was given in response to the jury's question about whether entrapment as to one count should affect its verdict as to the other counts.

B. Government's Evidence at Trial¹³

The Government's evidence at trial tracked the ATF's undercover operation from the initial contact and meetings with Cius and Gustama through the day of the Appellants' arrests.

1. The ATF's Undercover Operation

The Appellants' arrests on January 11, 2012 resulted from an undercover sting operation conducted by the ATF. Special Agent Michael Connors testified as the Government's first witness. He explained that the ATF uses sting operations to identify and apprehend individuals who are experienced in conducting home invasion robberies. In this case, Agent Connors posed as a disgruntled courier for a Mexican drug trafficking organization that was looking for an experienced crew to rob 15 to 20 kilograms of cocaine from a stash house in Broward County, Florida.

a. Initial Communication with Cius

Cius called Agent Connors on December 17, 2011, after a confidential informant provided him with Agent Connors' phone number.¹⁴ Agent Connors stated that he did not want to discuss anything over the phone and told Cius he would call him back the following week.

b. December 20, 2011 Meeting with Cius and Gustama

Agent Connors called Cius on December 20, 2011 and arranged to meet him later that afternoon in the parking lot of a Perkins restaurant off the Florida Turnpike.¹⁵ Agent Conners arrived first. Shortly thereafter, Cius arrived, accompanied by Gustama. Gustama was driving the car, and Cius was in the front passenger seat. Agent Connors entered their car and sat in the rear passenger seat.¹⁶

Agent Connors told Cius and Gustama that he had a trucking company, and that once a month for the past year, he had worked as a courier for a Mexican drug trafficking organization, picking up “one or two bricks” ¹⁷ a month from various houses and transporting the bricks “up north.” Agent Connors told them that 15 to 20 kilograms of cocaine were always in the house. He explained that he was usually the first courier to arrive at the house, and that after he picked up his two kilograms of cocaine, the remainder of the cocaine would still be there. Agent Connors told Cius and Gustama that he was upset because the drug traffickers had not paid him what they had promised, and he was “looking for, you know, a crew to knock them off.” Agent Connors stated that he wanted five kilograms of cocaine as his share from the robbery. Agent Connors added that he had never seen money in the stash houses, “just coke.” Cius asked Agent Connors to confirm the quantity of cocaine, and Agent Connors repeated, “15 to 20.”

Gustama asked, “Where's it at though?” to which Agent Connors answered that the stash houses' locations changed from month to month. Agent Connors told them that the drug traffickers used different vacant houses with lock boxes on the doors. Agent Connors explained that although the location of the houses changed, the cocaine was always guarded by the same two men, Carlos and Richie. Agent Connors told Cius and Gustama that he usually received a phone call from the drug traffickers around 7:00 p.m. or 8:00 p.m. with the address of the house where he was to pick up the cocaine. Gustama asked if anyone would be inside the house, and Agent Connors replied that Carlos and Richie would be inside, and warned that “they're always strapped,” meaning that the guards were armed with guns.

Cius asked Agent Connors, “How can we get to the, um, them bricks?” Agent Connors replied that the bricks of cocaine were “just out there.” Cius asked whether the guards ever left the cocaine “at the house alone.” Agent Connors replied that the guards left the house only after all of the cocaine had been picked up by the other couriers. Gustama asked whether the guards were “always strapped?” Agent Connors replied: “Yeah. The same two guys. I don't know if this is something y'all can do or not or if it ain't, you know, just uh, you know, we never met and just leave it at that.” Cius replied, “I don't know. I don't know.” Gustama...