United States v. Rodriguez, 72-1529.

• Decision Date: 04 April 1973
• Docket Number: No. 72-1529.,72-1529.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 587 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ, Defendant-Appellant.

No. 72-1529.

United States Court of Appeals, Fifth Circuit.

January 30, 1973.

Rehearing Denied April 4, 1973.

Louis Stoskopf, Martin S. Saxon, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before RIVES, WISDOM and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this appeal of a narcotics conviction, three questions have been raised Was the evidence sufficient to convict the defendant despite an entrapment defense? Was evidence of a subsequent, similar transaction admissible? Did the trial court's refusal to order the Government to subpoena an informer witness and to permit defendant to testify to conversations with this witness deprive defendant of a fair trial?

Miguel Rodriguez met a Special Agent of the Bureau of Narcotics and Dangerous Drugs and a Government informer, Eduardo Malpica, on September 7, 1971, in downtown Miami, Florida. Arrangements were made for the agent to purchase cocaine from Rodriguez the following day. On September 8th, the agent first extracted from a package under the seat of Rodriguez' car a sample of cocaine and later paid defendant $1,500 and took the package.

After a non-jury trial, defendant was convicted of two narcotics offenses, possession of cocaine with intent to distribute and distribution of cocaine, both in violation of 21 U.S.C.A. § 841(a)(1). He was sentenced to concurrent imprisonment for four years on each count. We affirm.

Entrapment

Defendant asserts entrapment as a matter of law and as a matter of fact and contests the sufficiency of the Government's evidence to refute entrapment.

Alleging entrapment at law, defendant shows that the cocaine in question was part of two kilos of cocaine furnished his brother, Mario Rodriguez, by a Government informer named Juan Mesa. The Government admits that this was apparently the source of defendant's supply. Defendant argues that the Government thus furnished itself narcotics through an intermediary, as proscribed in United States v. Bueno, 447 F.2d 903 (5th Cir. 1971).

The rationale of Bueno, however, will not support the defense in this case. In Bueno, we held that entrapment at law is established when the Government furnishes narcotics to an individual for him to sell to a Government agent. The crime in Bueno was committed through the creative activity of the Government informer in buying the heroin, smuggling it into the United States from Mexico, giving it to Bueno, selecting the prospective purchaser, and arranging for the defendant to make the sale. No such Government participation was involved in the sale made by Rodriguez. Bueno will not support the theory that the introduction of narcotics into the marketplace by the Government informer is sufficient to cloak all subsequent sellers with an entrapment defense. Being once removed from the person to whom the cocaine was furnished by a Government informer, Rodriguez cannot claim entrapment as a matter of law. He obtained the contraband from a nongovernment source, and that fact alone is sufficient to distinguish his defense from Bueno's.

Defendant makes an alternate contention that the evidence showed that he received the cocaine from the informer, Malpica, instead of his brother, so that the Bueno rule could properly be extended to this case, but this issue of fact was resolved against defendant on contrary testimony.

Alleging entrapment as a matter of fact, defendant charges that the Government informer, Malpica, induced him to participate in this transaction. Once a defendant raises the entrapment issue with some evidentiary support, the burden of going forward with the evidence shifts to the Government to contradict the evidence. United States v. Groessel, 440 F.2d 602 (5th Cir. 1971), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713.

We conclude that the Government has met its burden. The evidence established that defendant was a dealer in narcotics and had dealt in considerable quantities of cocaine. No evidence supports the conjecture that Malpica here implanted the scheme in defendant's mind. The Supreme Court, in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), said that, in determining the validity of an entrapment defense, "the controlling question is whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." 287 U.S. at 451, 53 S.Ct. at 216. We do not discern in the activities of the Government informer and agent sufficient creativity to meet this standard. At most, the Government merely provided an opportunity for Rodriguez to commit the offense.

Defendant testified that he never touched the package of cocaine, but that the Government informer, Malpica, actually obtained the cocaine from Mario Rodriguez and sold it to the agent. To refute this evidence, the Government presented testimony that the informer and agent both got into defendant's car at his invitation, that defendant told the agent to get the package of cocaine from under the seat on both occasions, and defendant both accepted and retained the payment. The trial court's guilty verdict resolved this issue of fact against defendant.

Admissibility of Subsequent, Similar Transaction

Defendant contends that the admission into evidence of testimony pertaining to a subsequent, similar transaction was both erroneous and sufficiently prejudicial to warrant reversal. The testimony involved a sale of cocaine by Rodriguez on September 27, 1971, twenty days after the date of the offense charged.

The Court refused to permit the Government to introduce this evidence in its case in chief. But when the defendant testified in his own behalf, the Court allowed cross-examination as to a meeting between Government agents and the defendant on September 27, 1971. Defendant denied that cocaine was discussed at that meeting. Government agents then testified that a small amount of...