United States v. Cortes, No. 12-50137 (Silverman with Thomas and Fisher) ---

This opinion cleans up some confusion about the proper jury instruction for entrapment in light of United States v. Spentz, 635 F.3d 815 (9th Cir. 2011), and clarifies that a jury instruction on sentencing entrapment may sometimes be required in light of Alleyne v. United States, 133 S. Ct. 2151 (2013). 

This is a fake stash house case.  Undercover ATF agents recruited the defendant and some confederates to rob a house where, they said, 100 kilograms of cocaine were being stored.  At trial, the defendant claimed entrapment, and the judge instructed the jury using the Ninth Circuit's model instruction modified (in his view) to account for Spentzby forbidding the jury from considering the large amount of drugs the defendant hoped to recover and share with his confederates.  The Ninth Circuit held that the judge didn't interpret Spentz correctly, because Spentz only held that the prospect of recovering contraband cannot by itself establish entrapment.  This weakness in the jury instruction led the panel to reverse and remand for a new trial. 

On remand, the issue of sentencing entrapment might arise, because the defendant had historically only been involved in transactions involving 5 or 6 kilograms of cocaine, not 100.  Because the amount of cocaine involved could trigger certain mandatory minimum sentences and affects the statutory maximum sentence, the Ninth Circuit held that sentencing entrapment is a question for the jury in light of Alleyne.  The panel offered a model instruction for sentencing entrapment.

Finally, the court held that the Hobbs Act (18 U.S.C. § 1951) can be violated when the object of the robbery is contraband.

 
The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/17/12-50137.pdf