Wednesday, October 09, 2013

[Ed. note -- Jon asked me to step in for a few days while he's tending to other business. - Keith Hilzendeger, AFPD D. Az.]

United States v. Cortes, No. 12-50137 (9th Cir. Oct. 9, 2013) (Silverman, J., with Thomas and Fisher, JJ.)
--- The Ninth Circuit reversed a conviction for conspiring to possess with intent to distribute more than five kilograms of cocaine, finding an error with the judge's instruction to the jury on the defense of entrapment and holding that a sentencing entrapment claim must be tried to the jury when that claim will affect the minimum or maximum sentence.

This is a fake stash house case; ATF agents contrived to induce the defendant's participation in a scheme to lead an assembled gang to rob what ATF agents represented was a house where 100 kilograms of cocaine were stored. The defendant's participation in the scheme was induced through playing on the defendant's sympathy for the agent's story about being burned by a drug cartel and assuring the defendant that he and his confederates would be allowed to keep half of whatever amount of drugs was in the house.

At trial the defendant requested jury instructions on both entrapment and sentencing entrapment. The judge declined to give the latter instruction, believing that it would be "subsumed" within any instruction on entrapment. On the entrapment defense, the judge instructed the jury along the lines of the model instruction, but modified the instruction in light of the Ninth Circuit's decision in United States v. Spentz, 653 F.3d 815 (9th Cir. 2011). With respect to the predisposition element of the entrapment defense, the court instructed the jury that "the amount of drugs or the profit that would be derived from their sale does not constitute an inducement supporting entrapment." The trial judge believed that Spentz required this modification of the model instruction. The jury convicted the defendant on all the charges, and he was ultimately sentenced to 20 years in prison.

The panel held that the trial judge's modification of the entrapment instruction overstated the holding in Spentz. Cases prior to Spentz had held that a pecuniary inducement could support an entrapment defense, so long as there was evidence of other, non-pecuniary inducements as well -- repeated overtures on the part of government agents, playing on the defendant's dire financial situation, or being reimbursed for an investment related to the criminal scheme. By instructing the jury that the drugs or profit cannot per se establish inducement, the panel said, the trial judge "slightly overstated" the holding in Spentz. Instead, judges should instruct the jury that a profit motivation "cannot on its own establish" an entrapment defense.

On the sentencing-entrapment claim, the panel noted that a defendant "is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range." Here, that would have been the case -- the defendant was indicted on a crime based on five kilograms of cocaine, which carries a mandatory minimum sentence of ten years. But if he could prove that he only had the werewithal to procure on his own, say, two kilograms of cocaine, then he would be exposed only to a five-year mandatory minimum sentence. And this would have affected the statuory maximum sentence to which the defendant was exposed as well. Moreover, under Alleyne v. United States, 133 S. Ct. 2151 (2013), the facts supporting a mandatory minimum sentence are within the domain of the jury. The panel then proposed a jury instruction for sentencing-entrapment cases.

The decision is here:

Keith Hilzendeger, AFPD D. Az.



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