Appendix — Saadon v. United States

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse in

the City of New York, on the 4th day of June, one thousand

nine hundred and eighty-two.

Present:

HONORABLE IRVING R. KAUFMAN,

HONORABLE RALPH K. WINTER,

Circuit Judges,

HONORABLE ROBERT J. WARD,

District Judge, sitting by designation

UNITED STATES OF AMERICA,

Appellee,

81-1476

v. 81-1480

81-1482

GABRIEL OUTMEZGIUNE, RAFAEL SAADON, and

RAFAEL BEN-NATAN, ,

Appellants.

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Appendix A

Appeal from the United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District of

New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgments of said District

Court be and they hereby are ‘affirmed.

1. Appellants Rafael Saadon and Gabriel

Outmezgiune claim that Judge Bramwell erred in

refusing to give the entrapment charge requested.

In this Circuit, if the defendant adduces some

evidence of inducement by the Government, the

prosecution then has the burden of establishing

the defendant’s propensity to commit the crime

United States v. Valencia, 645 F. 2d 1158, 1166

(2d Cir. 1980); United States v. Sherman, 200 F.

2d 880, 882-83 (2d Cir. 1952). Assuming that

Saadon and Outmezgiune met their burden, the

entrapment charge was not necessary ‘‘if

uncontradicted proof has that the

accused was ‘ready and willing persuasion’

and to have been ‘awaiting any propitious

opportunity to commit the offense.’ "’ United

States v. Riley, 363 F.2d 955, 959 (2d Cir. 1966).

The propensity of Saadon and Outmezgiune to

commit the crimes was established overwhelmingly.

They instantly accepted the suggestion that they

purchase the heroin from France. They were able

to deliver heroin to the Drug Enforcement

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Appendix A

Administration (DEA) informant Marcel Atties on

the very day he asked for it. They possessed lerge

amounts of cash which indicated that they were

substantial and frequent drug traffickers. Saadon

and Outmezgiune adduced nothing to contradict

this evidence of propensity. Accordingiy, under

the circumstances, it was not erroneous for the trial

judge to refuse to charge the jury on entrapment.

United States v. Licursi, 525 F. 2d 1164, 1168-69

(2d Cir. 1975).

2. Appellant Saadon contends that Judge

Bramwell improperly refused to charge the jury

that “‘the fact that a person may have been in a

state of drug-induced stupor at the time of the

commission of a crime may negative the existence

of specific intent.’ There was simply no evidence,

however, indicating that Saadon’s drug addition

[sic] led him to be so consistently under the

influence of drugs that he was unable to form the

mental intent necessary to commit the crimes

charged. See United States v. Busic, 592 F. 2d 13,

21 (2d Cir. 1978).

3. Appellant Saadon also argues that the

Government’s conduct in this case was so shocking

as to violate the Due Process Clause of the Fifth

Amendment in that the Government agents

supplied Saadon with 2 grams of heroin which was

from 89%—91% pure knowing that he was a

heroin addict likely to ingest it thus risking

Saadon’s life. This claim is without merit.

Supplying heroin samples during a narcotics

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Appendix A

investigation can hardly be labelled ‘‘egregious’’.

Cf. United States v. Alexandro, No. 81-1435, slip

op. at 1718 (2d Cir. Mar. 18, 1982). The purity

of the heroin was essential since it was supposed

to be a sample of the uncut heroin coming in from

France.

4. There was ample evidence to support the

conviction of appellant Rafael Ben-Natan. The

standard on review is whether “ ‘uponthe evidence,

giving full play to the right of the jury to determine

credibility, weigh the evidence, and draw inferences

of fact, a reasonable mind might fairly conclude

guilt beyond a reasonable doubt.’’’ United States

v. Rivera, 513 F. 2d 519, 529 (2d Cir.), cert. denied,

423 U.S. 948 (1975). Ben-Natan was frequently

sighted by DEA agents in or near Saadon’s car

while Saadon was meeting with Atties and

discussing the importation of heroin from France.

He participated in a meeting on May 13, 1981 with

Saadon, Atties and Outmezgiune and warned them

to be careful of possible surveillance. In addition,

one of the safety deposit boxes containing the

money to be used for the purchase which was

shown by Saadon to Atties belonged to Ben-Natan

and he held a power of attorney over another box.

The evidence sufficiently demonstrated that Ben-

Natan was a knowing participant of the conspiracy.

5. Appellants’ other claims are equally

without merit.

6. Accordingly, the judgments are affirmed.

Sa

Appendix A

s/ Irving R. Kaufman

IRVING R. KAUFMAN,

s/ Ralph K. Winter

RALPH K. WINTER,

Circuit Judges.

s/ Robert J. Ward

ROBERT J. WARD,

District Judge.