Petition for Writ of Certiorari — Garcia v. United States

Supreme Court, U.S.

) FILED

ad BO0gocTs 1999

No. 99-__ OFFICE OF THE CLERK

In The

Supreme Court of the United States

¢

ELEUTERIO GARCIA,

Petitioner,

UNITED STATES,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

ROTHSTEIN, DONATELLI, HUGHES, n

DAHLSTROM, CRON &

SCHOENBURG, LLP

Rosert R. ROTHSTEIN

Counsel of Record

Mark H. DONATELLI

JOHN L. SULLIVAN

Post Office Box 8180

500 Montezuma, Suite 101

Sante Fe, New Mexico 87504-8180

(505) 988-8004

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

= ty trainenstiset

ein etait a

~~

QUESTIONS PRESENTED

1. Where the defendant in a criminal case asserts an

entrapment defense and shows that he was induced by a

government agent to commit the crime, can evidence of a

defendant’s conduct weeks and months after his initial

contact with the government agent be used to show that

the defendant was predisposed to commit the crime

before he came in contact with the government agent?

2. Is the entrapment standard established in Jacob-

son v. United States, 503 U.S. 540, 548 (1992), violated

where a conviction is supported only by evidence of

conduct that was induced by weeks and months of con-

tact with a government informant?

PARTIES TO THE PROCEEDINGS BELOW

The parties to this case are Eleuterio Carcia and the

United States. When commenced, this criminal action

included two co-defendants: Rafael Chavez and

Dagoberto Torres.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ccc0ccce. i

PARTIES TO THE PROCEEDINGS BELOW......... ii

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PETITION FOR A WRIT OF CERTIORARI ......... 1

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Ue ORM PRSEEI EOIN 6 icc cicsecncectceses 1

STATUTES AND CONSTITUTIONAL PROVISIONS

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REASONS FOR GRANTING THE WRIT ........... 8

THE COURT OF APPEALS’ DECISION ALLOWS

THE GOVERNMENT TO ENTRAP INDIVIDUALS

BY INDUCING CONDUCT REFLECTING A WILL-

INGNESS TO COMMIT A CRIME BEFORE OFFER-

ING AN OPPORTUNITY, CONTRARY TO THIS

COURT’S DECISION IN JACOBSON V. UNITED

amen My Pe Whe OD CI9SE) 6 oo oo vn on dc bans candee 8

I 6h Oh goss u si xis GEV Aww bab W ce ba wes an 14

APPENDIX: Judgment and Opinion of the United

States Court of Appeals for the Tenth Circuit,

i ee eas etre whew nedwswns cae la

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TABLE OF AUTHORITIES

Page

FEDERAL Cases

Jacobson v. United States, 503 U.S. 540 (1992)..... passim

United States v. Brown, 43 F.3d 618 (1lth Cir.), cert.

Gonied; SiG VS: BAY Cee 6a hs sae bo eis ee 11 |

United States v. Byrd, 31 F.3d 1329 (5th Cir. 1994),

cart. Gemied, SIG UD. THe EROMe 6 ev ck tvvcassacvenss 11

United States v. Duran, 133 F.3d 1324 (10th Cir.

POPPE EOE Poe Or ee re ee Pe eee ey ree 12

United States v. Fontenot, 62 F.3d 1429 (10th Cir

1995), cert. denied, 516 U.S. 1059 (1996)............ 10

United States v. Hernandez, 31 F.3d 354 (6th Cir.),

cert. Gemted, Sis US. Dis CUPPED icine hose vsankaccas 11

United States v. Hollingsworth, 27 F.3d 1196 (7th

Cae: Teme GOe MES kk cda cd ieeeessscuaanner ere Li, is

United States v. Lessard, 17 F.3d 303 (9th Cir. 1994) .... 11

United States v. Loftus, 992 F.2d 793 (8th Cir. 1993) .... 11

United States v. Mendoza-Salgado, 964 F.2d 993 (10th

Cae) EE bs tka cae cdaleeki dl wae awi el Eka a eee ae 12

United States v. Osborne, 935 F.2d 32 (4th Cir. 1991) .... 11

STATUTES AND CONSTITUTIONAL PROVISIONS

ts OEE WR i re 6

* USc RE... «oe oe 6

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96 ONE SE Oo eer te sin ah 7

UKE OOM. ee ees 7

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari

issue to review the Judgment and Opinion of the United

States Court of Appeals for the Tenth Circuit entered in

the above-entitled action on July, 7, 1999.

e

OPINIONS BELOW

The Opinion of the Court of Appeals for the Tenth

Circuit, entered on July 7, 1999, is reported at 182 F.3d

1165, and is reprinted in the Appendix hereto at pages 1

through 24.

¢

BASIS FOR JURISDICTION .

The Judgment and Opinion of the court of appeals

was entered on July 7, 1999. This petition for writ of

certiorari is filed on October 5, 1999, within 90 days of

July 7, 1998. See Sup. Ct. R. 13. This court has jurisdiction

to review the final judgment of the court of appeals under

28 U.S.C. §1254(1).

¢

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the federal common law defense of

entrapment. See Jacobson v. United States, 503 U.S. 540, 553

(1992). Therefore, there are no statutory or constitutional

provisions involved.

STATEMENT OF THE CASE

A. Facts.

1. The Defendant is A Successful Mexican-Ameri-

can Businessman.

Eleuterio Garcia came to the United States in 1966

and worked his way from cleaning yards to owning and

operating three successful construction businesses.

Despite little formal education and a limited command of

the English language, he became a prominent member of

the Las Cruces, New Mexico business community. Not

surprisingly, prior to his arrest in this case, Garcia had no

criminal record, and no prior involvement in using or

selling narcotics.

2. The Government Informant Is A Career Crimi-

nal.

In 1969, Saul Horcasitas entered the United States

illegally and soon began smuggling other illegal aliens

into the country. In 1984, he was sentenced to 6 months in

prison, and escaped while serving that sentence. In 1986,

he was captured in Colorado. Desperate to stay in the

United States and later fearing that he would be in dan-

ger if he returned to Mexico, Horcasitas has maintained a

tenuous hold on the privilege of staying in the country by

arranging sting operations on behalf of various govern-

ment agencies (including the federal Drug Enforcement

Agency). In exchange, these government agencies not

only pay Horcasitas for each arrest he arranges but also

have interceded with the INS to keep Horcasitas in the

country.

RTE pes

————

Over the years, Horcasitas has established a method

of operation in which he befriends people and gains their

trust, then asks them to sell him drugs with the idea of

making them the target of a sting operation. Despite a

complete lack of law enforcement training or instruction

on the law of entrapment or how to avoid entrapping

innocent people, Horcasitas picks the targets out on his

own, gets the target committed to participating in a drug

transaction, then seeks out a law enforcement agency

willing to pick this fruit that he has carefully cultivated.

3. The Government Informant Befriended The

Defendant And Induced Him To Find Someone

To Supply Drugs For A “Controlled Buy”.

In early September, 1995, Horcasitas and his family

moved into a mobile home owned by Garcia. Although

Garcia had given no indication that he was involved with

narcotics, Horcasitas befriended Garcia and his family in

an effort to induce Garcia to participate in a drug transac-

tion.

Weeks after Horcasitas moved into the Garcia mobile

home and began befriending the Garcia family in an

effort to set up Garcia as the target of a sting operation,

the topic of drugs entered the conversations between

Horcasitas and Garcia. At the trial, Horcasitas said Garcia

had heard that Horcasitas was selling marijuana and

approached Horcasitas to suggest that he might deal in

“something better for you if you want to make money.”

Horcasitas said he told Garcia he knew some people in

Kansas who might be interested in buying cocaine.

According to Garcia, Horcasitas said he was involved in

transporting cars to and from Kansas, Colorado and

Oklahoma, asked if Garcia needed to have anything

transported there or back, and then asked if Garcia had

any cocaine or marijuana that Horcasitas could transport.

Garcia refused, but Horcasitas pestered Garcia repeatedly

over the next several weeks in an effort to ensnare Garcia

in a drug deal. Garcia rebuffed Horcasitas’ overtures

throughout October and into November of 1995.

In mid-November of 1995, Horcasitas told Garcia he

had some “friends” coming from Kansas to buy cocaine

and that he needed a supplier. When Garcia refused to

help find Horcasitas a supplier, Horcasitas told him his

friends “were coming from Kansas and didn’t want to do

so for nothing.” Horcasitas then told Garcia he (Hor-

casitas) would look bad in front of his “friends” if Garcia

did not help him find someone to supply the cocaine he

needed.

On December 1, 1995, Horcasitas had his first meet-

ing with agents from the Las Cruces office of the DEA.

Contrary to DEA guidelines regarding the use of inform-

ants, the DEA agents never conducted a background

check on Horcasitas and never asked Horcasitas if he had

done anything to induce Garcia’s interest in participating

in a drug transaction.

On December 7, 1995, the DEA agents arranged a

recorded telephone conversation between Horcasitas and

Garcia. Horcasitas told Garcia he had called “up North”

and that his friends wanted to know “whether I’m bring-

ing for 5 bundles or for 6.” At first, Garcia did not reply.

Horcasitas prodded him, “What do you think? Huh?”

Eventually, Garcia said, “I don’t give a damn.” Prodding

Garcia further, Horcasitas asked, “Well, then should I

bring for 6?” Garcia said “yeah.”

On December 10, 1995, Horcasitas called Garcia and

said his “friends” from Kansas had arrived in Las Cruces.

He said he urgently needed to find someone to supply

the cocaine to sell to them. Garcia said he still had not

talked to anybody about it. Garcia then received a tele-

phone call from Rafael Chavez, a former employee who

regularly purchased stone from Garcia for his wall build-

ing business. Chavez said he wanted to buy some stone,

and they arranged a meeting for later that morning.

Horcasitas called during Garcia’s meeting with

Chavez. Garcia had heard that Chavez used cocaine, and

he thought Chavez might be able to supply the cocaine

Horcasitas needed. Up to this point, Garcia had been, by

Horcasitas’ admission, “reluctant to get involved” in the

transaction. Garcia now responded more readily to Hor-

casitas’ prompting. Horcasitas said “the papers” (money)

would arrive the next day. Garcia said he wanted to look

at them, and Horcasitas said he would call as soon as his

friends arrived.

After that telephone conversation, Garcia asked

Chavez if he knew somebody who could supply the

cocaine. When Horcasitas called back later that day, Gar-

cia said he had talked to someone about supplying the

cocaine, but he did not know whether they could or

would. Horcasitas continued to act nervous and desper-

ate about the situation.

On December 13, 1995, Horcasitas called Garcia and

said his “friends” had arrived from Kansas and wanted to

meet with Garcia. Later that day, Chavez called Garcia

and told him he would supply the cocaine.

The following morning, Horcasitas called Garcia, and

Garcia agreed to meet Horcasitas and his “friends.” Gar-

cia met with Horcasitas and the DEA agents. Garcia then

met Chavez, who was riding in a truck driven by

Dagoberto Torres, the presumed supplier of the cocaine.

The three men then met with Horcasitas and the DEA

agents and were arrested. A fingerprint analysis of the

package containing the cocaine showed that Garcia had

never handled it.

At trial, Torres testified that he and Chavez had done

at least 12 drug deals in the four years preceding their

arrest, and that Garcia had never been involved in any of

those transactions.

B. Proceedings Below.

An Indictment was filed in the United States District

Court for the District of New Mexico on December 15,

1995 charging Garcia, Torres and Chavez with possession

of more than 500 grams of cocaine with intent to distrib-

ute in violation of 21 U.S.C. §841(b)(1)(B). The district

court’s subject matter jurisdiction was based on 18 U.S.C.

§3231, as this is a criminal action charging an offense

against the laws of the United States.

A jury trial was conducted from June 10, 1997 to June

14, 1997. At the close of the government’s case-in-chief,

Garcia moved for entry of a judgment of acquittal pur-

suant to Rule 29, Fed.R.Crim.P., arguing that the evidence

showed entrapment as a matter of law. That motion was

denied. On June 14, 1997, the jury returned a guilty

verdict, and Garcia was remanded into custody. On June

20, 1997, Garcia renewed his motion for judgment of

acquittal, and made a motion for new trial, pursuant to

Rule 33, Fed.R.Crim.P., again arguing that the evidence

showed entrapment as a matter of law. On September 29,

1997, the district court entered a Memorandum Opinion

And Order denying the motions. On October 1, 1997,

Garcia filed a motion for reconsideration, and on Novem-

ber 3, 1997, the district court entered a Memorandum

Opinion And Order denying the motion for reconsidera-

tion.

A sentencing hearing was held on December 16, 1997,

and on December 29, 1997, the district court entered a

Judgment sentencing Garcia to 18 months in prison, with

four to five years supervised release, and fining him

$1,000.

On January 8, 1998, Garcia filed a Notice of Appeal to

the United States Court of Appeals for the Tenth Circuit

challenging his conviction. On February 5, 1998, the

United States also filed a Notice Of Appeal challenging

the sentence. The court of appeals had jurisdiction under

28 U.S.C. §§1291 and 1294. On July 7, 1999, the court of

appeals entered a Judgment and Opinion affirming Gar-

cia’s conviction and reversing his sentence.

On September 28, 1999, the district court held a

resentencing hearing. Finding additional grounds to sup-

port the original sentence it imposed, the court sentenced

Garcia to time served. Nonetheless, Garcia remains under

supervised release, and, because of his status as a resi-

dent alien, he faces likely deportation if his conviction is

not reversed.

°

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ DECISION ALLOWS THE

GOVERNMENT TO ENTRAP INDIVIDUALS BY

INDUCING CONDUCT REFLECTING A WILLING-

NESS TO COMMIT A CRIME BEFORE OFFERING AN

OPPORTUNITY, CONTRARY TO THIS COURT’S

DECISION IN JACOBSON V. UNITED STATES, 503 U.S.

540 (1992).

The tenor of federal entrapment law changed sub-

stantially with this court’s decision in Jacobson v. United

States, 503 U.S. 540, 548 (1992). In Jacobson, the court

overturned the defendant's conviction for receiving child

pornography through the mail, because the government

had induced the defendant to commit the crime and there

was insufficient evidence to prove that the defendant was

predisposed to commit the offense before the government

contacted him.

The evidence showed that Jacobson had purchased

two magazines containing photographs of nude preteen

and teenage boys at a time when such purchases were

legal. After a law was passed making the receipt of such

materials a federal offense, postal inspectors found Jacob-

son’s name on the mailing list of the bookstore that had

sent him the magazines. Over the next 2'/2 years, under-

cover investigators for the Postal Service and the Cus-

toms Service made repeated mailings to Jacobson, which

included fictitious surveys about his views on pornogra-

phy and exhortations about sexual freedom and the right

to buy pornography. Eventually, an agent for the Customs

Service sent Jacobson a letter suggesting that porno-

graphic materials could be received from overseas and

asking Jacobson to send for more information. When

Jacobson sent in for more information, the agent sent him

a catalogue, and Jacobson ordered a magazine containing

pornographic photographs of young boys engaged in

various sexual activities.

Writing for the court, Justice White said:

By the time petitioner finally placed his order,

he had already been the target of 26 months of

repeated mailings and communications from

Government agents and fictitious organizations.

Therefore, although he had become predisposed

to break the law by May 1987, it is our view that

the Government did not prove that this predis-

position was independent and not the product

of the attention the Government had directed at

petitioner since January 1985.

Id., 503 U.S. at 550.

In explaining how the government had induced Jac-

obson’s readiness and willingness to purchase child por-

nography, the court said:

[B]y waiving the banner of individual rights and

disparaging the legitimacy and constitutionality

of efforts to restrict the availability of sexually

explicit materials, the Government not only

excited petitioner’s interest in sexually explicit

materials banned by law but also exerted sub-

stantial pressure on petitioner to obtain and

read such material as part of a fight against

10

censorship and the infringement of individual

rights.

* * *

Petitioner’s ready response to these solicita-

tions cannot be enough to establish beyond a

reasonable doubt that he was predisposed, prior

to government acts intended to create predis-

position, to commit the crime of receiving child

pornography through the mails. The evidence

that petitioner was ready and willing to commit

the offense came only after the Government had

devoted 2 1/2 years to convincing him that he

had or should have the right to engage in the

very behavior proscribed by law. Rational jurors

could not say beyond a reasonable doubt that pett-

tioner possessed the requisite predisposition prior to

the Government's investigation and that it existed

independent of the Government's many and varied

approaches to petitioner.

Id., 503 U.S. at 552-53 (emphasis added).

Thus, while it previously had been well-understood

that entrapment involved government inducement and

an absence of predisposition, Jacobson made it clear that

the government bears the burden of proving beyond a

reasonable doubt that the defendant’s predisposition

“was independent and not the product of the attention

that the Government directed at the [defendant],” id., 503

at 550, and adopted a prophylactic rule requiring that the

government prove that “the defendant was disposed to

commit the criminal act prior to first being approached

by government agents,” id., 503 U.S. at 553. See also United

States v. Fontenot, 62 F.3d 1429 (10th Cir. 1995) (table), text

on Westlaw, 1995 WL 462381 (the government must show

11

that the defendant was predisposed “prior to the initial

contact by government agents”; “a defendant’s criminal

intent cannot evolve as interaction with the agent pro-

gresses”), cert. denied, 516 U.S. 1059 (1996); LInited States v.

Lessard, 17 F.3d 303, 305-06 (9th Cir. 1994) (the instruction

to the jury must make it clear that predisposition must

exist prior to any contact with the government agent);

United States v. Hernandez, 31 F.3d 354, 360 (6th Cir.)

(defining predisposition as “defendant’s state of mind

before his initial exposure to government agents”), cert.

denied, 513 U.S. 912 (1994); United States v. Brown, 43 F.3d

618, 624 (11th Cir.) (predisposition inquiry “asks the jury

to consider the defendant’s readiness and willingness to

engage in the charged crime absence any contact with the

government's officers or agents”), cert. denied, 516 U.S.

917 (1995); United States v. Byrd, 31 F.3d 1329, 1336 (5th

Cir. 1994) (“[T]he crucial holding of Jacobson is that pre-

disposition must be independent of government action”),

cert. denied, 514 U.S. 1052 (1995); United States v. Hol-

lingsworth, 27 F.3d 1196, 1201 (7th Cir. 1994) (en banc)

(“We know from Jacobson that a criminal predisposition

induced by government action cannot be used to defeat

an entrapment defense”); United States v. Loftus, 992 F.2d

793, 797-98 (8th Cir. 1993) (holding that instruction asking

whether defendant was predisposed “prior to the time

you find he was induced to commit the crime” was

erroneous); United States v. Osborne, 935 F.2d 32, 37 (4th

Cir. 1991).

Here, the court of appeals said, “[a]lthough [Jacobson]

requires that the defendant's predisposition be viewed at

the time the government agent first approached the

defendant, inferences about that predisposition may be

12

drawn from events occurring after the two parties came

into contact.” App. at 4 (citing United States v. Duran, 133

F.3d 1324, 1336 (10th Cir. 1998) (finding sufficient evi-

dence of predisposition where defendant “bragged” to

government informant “about being able to obtain

drugs”), and United States v. Mendoza-Salgado, 964 F.2d

993, 1003 (10th Cir. 1992) (“[Defendant’s] solicitous tele-

phone discussions with [the government agent] regarding

defendant's ability to supply cocaine, his express interest

in handling future drug purchases and his attendance at

the preliminary meeting between [his supplier] and

agents exemplifies a profound eagerness to engage in the

illegal activity.”).

The court of appeals then found that there was suffi-

cient evidence to prove that Garcia was predisposed to

distribute narcotics because, after weeks in which Hor-

casitas had befriended Garcia, repeatedly complained

about not having enough money, and let it be known that

he was involved in drug dealing, Garcia was the first to

mention drugs. The court of appeals also relied on the

fact that, after months in which Horcasitas had been

prodding Garcia to help find a cocaine supplier, Garcia

understood thinly veiled code that Horcasitas used in

telephone conversations.

By relying on conduct that occurred weeks and

months after the government informant began his effort

to involve Garcia in a drug transaction, the court of

appeals’ decision undermines the prophylactic principle

established in Jacobson, which requires that there be proof

beyond a reasonable doubt that the defendant was pre-

disposed before he came in contact with the government

EEN

13

informant. The court of appeals’ decision allows the gov-

ernment to do precisely what Jacobson prescribes: induce

a willingness on the part of the defendant to become

involved in a criminal transaction through contact with

the defendant, then argue that the defendant is predis-

posed because of his ready response to a solicitation

occurring long after the initial contact. See Jacobson, 503

U.S. at 553 (“ready response to these solicitations cannot

be enough to establish beyond a reasonable doubt that he

was predisposed, prior to the Government acts intended

to create predisposition, to commit the crime.”); Hol-

lingsworth, 27 F.3d at 1199 (“Had the Court in Jacobson

believed that the legal concept of predisposition is

exhausted in the demonstrated willingness of the defen-

dant to commit the crime without threats or promises by

the government, then Jacobson was predisposed, in

which event the Court’s reversal of his conviction would

be difficult to explain. The government did not offer

Jacobson any inducements to buy pornographic maga-

zines or threaten him with harm if he failed to buy them.

It was not as if the government had had to badger Jacob-

son for 26 months in order to overcome his resistance to

committing a crime. He never resisted.”).

Because the court of appeals’ decision affects the way

that the government conducts the innumerable sting

operations that are part of its war on drugs and so

thoroughly undermines the principles established in Jac-

obson, this court should grant certiorari to review that

decision.

14

CONCLUSION

For the foregoing reasons, Petitioner respectfully

urges this Court to grant the writ and to review the

Judgment and Opinion of the Court of Appeals for the

Tenth Circuit.

Respectfully submitted,

ROTHSTEIN, DONATELLI, HUGHES,

DAHLSTROM, CRON

& ScCHOENBURG, LLP

Mark H. Donate.

Counsel of Record

JOHN L. SULLIVAN

Post Office Box 8180

500 Montezuma, Suite 101

Sante Fe, New Mexico 87504-8180

(505) 988-8004

Attorneys for Petitioner

October 5, 1999

la

UNITED STATES of America,

Plaintiff-Appellee/Cross-Appellant,

V.

Eleuterio GARCIA,

Defendant-Appellant/Cross-Appellee.

Nos. 98-2012, 98-2031.

United States Court of Appeals,

Tenth Circuit.

July 7, 1999.

John L. Sullivan, Rothstein, Donatelli, Hughes,

Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Mex-

ico (Mark H. Donatelli, Rothstein, Donatelli, Hughes,

Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Mex-

ico and Michael W. Lilley of Las Cruces, New Mexico,

with him on the briefs), for Defendant-Appellant/Cross-

Appellee.

Richard A. Friedman, Attorney, Appellate Section of

Criminal Division of the Department of Justice, Washing-

ton, D.C. (John J. Kelly, United States Attorney for the

District of New Mexico and Mick I.R. Gutierrez, Assistant

United States Attorney for the District of New Mexico

with him on the brief) for Plaintiff-Appellee/Cross-

Appellant.

Before PORFILIO, BALDOCK and EBEL, Circuit

Judges.

EBEL, Circuit Judge.

This appeal involves the defendant's challenge to the

district court’s denial of a motion for judgment of

2a

acquittal based on an entrapment defense and denial of

motions for a new trial, as well as the government's

cross-appeals on several sentencing issues. We affirm the

district court’s judgment, except for the district court's

two-level reduction based on the minor participant provi-

sion of the Sentencing Guidelines, on which we reverse

and remand.

On December 14, 1995, Defendant-Appellant/Cross-

Appellee Eleuterio Garcia was arrested for trafficking

cocaine, and was later charged with possession of cocaine

with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. At trial, his sole

defense was that paid government informant Saul Hor-

casitas entrapped him. The jury returned a guilty verdict,

and Garcia’s post-trial motions for judgment of acquittal

and for a new trial were denied.

At sentencing, the district court adjusted downward

Garcia's base offense level by six levels, pursuant to the

safety valve, acceptance of responsibility, and minor par-

ticipant provisions of the Sentencing Guidelines. The dis-

trict court then departed downward an additional seven

levels, finding Garcia’s commission of the crime to be a

single act of aberrant behavior. In total, Garcia’s offense

level dropped from twenty-eight to fifteen, which, when

combined with his criminal history category of I, estab-

lished a guideline imprisonment range of eighteen to

twenty-four months. Garcia was sentenced to eighteen

months in prison. The government cross-appeals the

downward departure, as well as the acceptance of

responsibility and minor participant adjustments.

3a

I. Entrapment as a Matter of Law

Garcia argues that he was entrapped as a matter of

law, and that the district court thereby erred in denying

his motion for judgment of acquittal. The denial of a

motion for judgment of acquittal based on entrapment is

reviewed de novo, viewing all the evidence and drawing

all reasonable inferences in the light most favorable to the

government. See United States v. Lampley, 127 F.3d 1231,

1242 (10th Cir.1997), cert. denied, __ U.S. __, 118 S.Ct.

1098, 140 L.Ed.2d 153 (1998).

“Entrapment exists as a matter of law only if the

evidence of entrapment is uncontradicted. When a jury

has found that no entrapment existed, we can alter that

finding on legal grounds only ‘where the holding should

be made without choosing between conflicting witnesses

nor judging credibility. . . . Accordingly, we review only

whether sufficient evidence exists to support the jury’s

verdict.’ ” United States v. Martinez, 979 F.2d 1424, 1429

(10th Cir.1992) (quoting United States v. Dozal-Bencomo,

952 F.2d 1246, 1250 (10th Cir.1991)) (citations omitted).

Once the defense of entrapment is properly raised, the

government has the burden of proving that the defendant

was predisposed to commit the crime. United States v.

Duran, 133 F.3d 1324, 1327 n. 2 (10th Cir.1998). The

“entrapment defense has two parts: (1) the lawfulness of

the government’s conduct, and (2) the defendant's pre-

disposition to engage in the criminal activity.” Lampley,

127 F.3d at 1242. Garcia’s claim of entrapment as a matter

of law focuses on the second element, predisposition.

Garcia contends that the government failed in its burden

to prove that he was predisposed to commit a criminal act

4a

prior to being approached by the government. “Predis-

position to commit a criminal act may be shown by

evidence of similar prior illegal acts or it may be inferred

from defendant's desire for profit, his eagerness to partic-

ipate in the transaction, his ready response to the govern-

ment’s inducement offer, or his demonstrated knowledge

or experience in the criminal activity.” Duran, 133 F.3d at

1335 (internal quotations and citations omitted). As a

result, although Jacobson v. United States, 503 U.S. 540,

549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), requires that

the defendant’s predisposition be viewed at the time the

government agent first approached the defendant, infer-

ences about that predisposition may be drawn from

events occurring after the two parties came into contact.

See Duran, 133 F.3d at 1336 (finding sufficient evidence of

predisposition where defendant, inter alia, “bragged” to

the government informant “about being able to obtain

drugs”); United States v. Mendoza-Salgado, 964 F.2d 993,

1003 (10th Cir.1992) (“[Defendant’s] solicitous telephone

discussions with [the government agent] regarding

defendant’s ability to supply cocaine, his express interest

in handling future drug purchases and his attendance at

the preliminary meeting between [his supplier] and

agents exemplifies a profound eagerness to engage in the

illegal activity.”).

We find there is sufficient evidence to prove that

Garcia was predisposed to distribute narcotics. The gov-

ernment’s paid informant, Saul Horcasitas, testified that

three weeks after he moved into the trailer next door to

Garcia, it was Garcia who first suggested to Horcasitas

that he shouid sell cocaine. Additionally, Garcia’s

5a

vocabulary and manner of dealing with Horcasitas dem-

onstrates knowledge and experience in illicit drug trades.

During two taped telephone conversations between Gar-

cia and Horcasitas, Garcia demonstrated knowledge of

the drug trade when he understood Horcasitas’ use of

code words. Horcasitas talked to Garcia in code, using

phrases like “animals” (cocaine), “bundles” (kilograms),

and “papers” (money), and Garcia had no problem

understanding Horcasitas’ lingo. In fact, Garcia even

used code words, stating in one conversation that he

wanted to look “at the papers to see if I like them, to see

if they work on the roof.” Police Officer Mike Mulliniks

testified that such code is used by people “familiar with

dealing in drugs,” and it is not unreasonable for a jury to

find that someone who understands such code is predis-

posed to deal drugs. See Mendoza-Salgado, 964 F.2d at 1003

(“ ‘code words’ to describe drugs and related matter fur-

ther exemplifies . . . understanding of the narcotics

trade”).

Other evidence admitted at trial sufficiently estab-

lishes Garcia’s predisposition. DEA Agent James Baker

testified that the amount of cocaine involved in the trans-

action, 2.987 kilograms, is “consistent with more sophisti-

cated operators.” Moreover, Garcia had a conversation

with Horcasitas in which Garcia refused to transport the

cocaine from Las Cruces, New Mexico to Hatch, New

Mexico. Garcia’s refusal to transport the cocaine to Hatch

from Las Cruces reasonably could be interpreted as

evincing a sophisticated understanding of the risks of

transporting drugs, because Border Patrol checkpoints

are positioned between the two cities. Garcia also knew to

ensure his security by insisting that the drug deal occur

6a

on his home turf; that the transaction be completed

quickly at the time Garcia, not the buyers, demanded;

and that the locations for the drug deal frequently

change. Finally, Garcia was apparently experienced

enough to maintain a cool, calm, and collected busi-

nesslike demeanor throughout the entire drug transac-

tion.

Given this evidence, and all reasonable inferences

which can be drawn in the government's favor, the dis-

trict court did not abuse its discretion in denying the

motion for judgment of acquittal. A jury reasonably could

find that the nearly three kilogram cocaine deal involving

Garcia resembled a sophisticated drug transaction that

someone predisposed to drug trafficking would commit.

II. Motion for a New Trial

Garcia filed a motion for a new trial on the ground

that the verdict was against the weight of the evidence

with regard to his sole defense of entrapment. The district

court denied the motion, and Garcia appeals, arguing that

the district court totally failed to weigh any evidence. A

district court’s denial of a new trial based on the weight

of the evidence is reviewed for abuse of discretion. United

States v. Evans, 42 F.3d 586, 593 (10th Cir.1994). Though

the district court’s reasoning could have been more

explicit, the district court did not abuse its discretion.

A motion for new trial should be granted if, “after

weighing the evidence and the credibility of the wit-

nesses, the court determines that ‘the verdict is contrary

to the weight of the evidence such that a miscarriage of

justice may have occurred.’ ” United States v. Gabaldon, 91

7a

F.3d 91, 93-94 (10th Cir.1996) (quoting Evans, 42 F.3d at

593). In its Memorandum Opinion and Order denying the

motion, the district court stated that it “considered the

briefs, testimony of witnesses and [was] otherwise fully

informed,” and it then concluded that the motion for new

trial was “not well taken.” The court laid out in detail the

testimony of Horcasitas, Agent Baker, and Officer Mul-

liniks, and ultimately found this testimony to be “directly

relevant to the question of inducement and contradictory

to Mr. Garcia’s testimony.” The court concluded that

“[Ib]ecause of this conflict the Court cannot say that Mr.

Garcia was entrapped as a matter of law.” Although its

reasoning was not explicit, we believe the district court

weighed the evidence and considered the credibility of all

the witnesses. The court’s complete description of the

evidence pertaining to the entrapment defense, its

express consideration of “the briefs, testimony of wit-

nesses and being otherwise fully informed,” combined

with the court’s explicit rejection of the new trial motion

establish that the court weighed the evidence, and found

it not to support a motion for new trial. Accordingly,

Garcia’s appeal on this matter fails.

Ill. Failure to Hold Hearing Regarding Potential Jury Mis-

conduct

Garcia also asserts that the district court erred in

failing to conduct a hearing regarding potential jury mis-

conduct. The denial of a motion for new trial based on

juror misconduct is reviewed under the abuse of discre-

tion standard. See United States v. Davis, 60 F.3d 1479, 1482

(10th Cir.1995).

8a

Garcia alleges that several jurors saw him arrive at

the courthouse in a recent model pickup truck and that

they improperly inferred that to afford such an expensive

vehicle, he must have been a drug dealer. Garcia argues

that the jurors’ observations of him arriving at the court-

house in a luxurious automobile constitutes external

information triggering a presumption of prejudice under

Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98

L.Ed. 654 (1954).

Remmer dealt with a third party offer of a bribe to the

jury foreman in exchange for a favorable verdict. The

Supreme Court held that the trial court erred in not

conducting a hearing with the participation of the defen-

dant to determine the effect of the offered bribe on the

jury, and stated: “In a criminal case, any private commu-

nication, contact, or tampering, directly or indirectly,

with a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed presump-

tively prejudicial.” Id. at 229, 74 S.Ct. 450. Remmer’s pre-

sumption of prejudice does not apply to Garcia because

the jurors’ alleged observations of Garcia and his pickup

truck do not constitute direct or indirect private “commu-

nication, contact, or tampering.” Seeing Garcia arrive at

court in his truck is not extraneous evidence, in the same

way that it is not extraneous evidence when a juror

observes the defendant walking down the corridor of the

courthouse between trial dates, or sees the defendant at

the grocery store. “To hold otherwise would require a

Remmer hearing based on each of the multiple ordinary

incidental contacts between non-sequestered jurors and

virtually any other person during the course of a trial.”

United States v. Brooks, 161 F.3d 1240, 1246 (10th Cir.1998)

9a

(holding Remmer inapplicable where juror spoke with

security officers during lunch break on first day of trial,

without evidence that their conversations were “about

the matter pending before the jury”). Remmer and its

applications in this Circuit thus foreclose us from adopt-

ing Garcia’s arguments. We further observe that, in any

event, photographs were introduced in evidence showing

Garcia in this truck. The Remmer presumption is not

applicable and the district court acted within its discre-

tion in refusing to hold a hearing on the matter.

IV. The Government's Cross-Appeals from the Sentence

The government raises three issues on cross-appeal.

The government contends that the district court erred in

adjusting Garcia’s sentence downward based on his

acceptance of responsibility and minor participant status

in the offense. The government also argues that the dis-

trict court erred in granting a downward departure for

aberrational behavior. We hold that the district court

erred only in its minor participant downward adjustment;

therefore, we affirm in part and reverse in part.

A. Acceptance of responsibility

At sentencing, the district court granted Garcia a two

point reduction for acceptance of responsibility. The court

made a factual finding that:

The defendant meets the criteria of Section

3E1.1(a) and will receive a two (2) level reduc-

tion for acceptance of responsibility. . . . The

defendant admitted his involvement in the

offense since his initial arrest and throughout

10a

the trial. Further, the defendant has given the

Government all the information he knows about

the offense. The Court finds it was appropriate

for the defendant having presented an entrap-

ment defense which admitted the underlying

facts, te receive full credit for acceptance of

responsibility.

On cross-appeal, the government argues that the district

court erred as a matter of law in applying the acceptance-

of-responsibility credit under U.S.S.G. § 3E1.1 because

Garcia went to trial, asserted an entrapment defense, and

thereby, according to the government, refused to

acknowledge that he willfully engaged in drug traffick-

ing. The issue before us is whether asserting an entrap-

ment defense at trial bars receipt of an acceptance-of-

responsibility reduction as a matter of law. The circuits

appear split on this matter,’ although only the Sixth

1 The Third, Sixth, Ninth, and Eleventh Circuits have

concluded that the entrapment defense and the acceptance of

responsibility reduction are not necessarily incompatible. See

United States v. Demes, 941 F.2d 220, 222 (3d Cir.1991) (“[I]t is

conceivable to hypothesize a case in which a plea of entrapment

would not be inconsistent with the acceptance of

responsibility. . . . ”); United States v. Fleener, 900 F.2d 914, 918

(6th Cir.1990) (“[W]e find that the district court did not err in

considering a reduction for acceptance of responsibility even

though [the defendant] raised an entrapment defense at trial.

Such a defense is no less inconsistent with the Guidelines

provision than is a plea of not guilty, which does not raise an

absolute bar to a court’s consideration.”); United States v. Ing, 70

F.3d 553, 556 (9th Cir.1995) (“The assertion of an entrapment

defense is not necessarily incompatible with acceptance of

responsibility.”); United States v. Davis, 36 F.3d 1424, 1435 (9th

Cir.1994) (“[T]he district court could not have found that [the

defendant] had not accepted responsibility solely because he

lla

Circuit has addressed the issue in a case with the same

posture as here: an appeal from a sentencing court's grant

presented an entrapment defense at trial.”); Joiner v. United

States, 103 F.3d 961, 963 (11th Cir.) (“[The defendant] would not

have been barred as a matter of law from receiving an

adjustment merely because he asserted an entrapment defense

at trial, even though some courts have viewed the assertion of

an entrapment defense as the virtual antithesis of acceptance of

responsibility. Rather, as with cases involving any other

defense, whether a defendant has accepted responsibility is a

fact-based question which requires the district court to carefully

review all of the evidence bearing on a particular defendant's

contrition.”) (citation omitted), cert. denied, 520 U.S. 1246, 117

S.Ct. 1857, 137 L.Ed.2d 1058 (1997). The First Circuit seems to

have reached the same conclusion. See United States v. Ellis, 168

F.3d 558, 564 (1st Cir.1999) (“In some cases, defenses relating to

intent may yet qualify for the acceptance of responsibility

reduction.”) (citing Fleener, 900 F.2d at 918).

On the other hand, the Fifth and Eighth Circuits have held

that an entrapment defense and a § 3E1.1 reduction are

necessarily incompatible. See United States v. Brace, 145 F.3d 247,

265 (5th Cir.) (en banc) (“[A]n entrapment defense is a challenge

to criminal intent and thus to culpability. Accordingly, this is not

one of those ‘rare situations’, contemplated by the guideline

commentary, in which a defendant may proceed to trial and still

satisfy § 3E1.1(a).”), cert denied, __ U.S. __, 119 S.Ct. 426, 142

L.Ed.2d 347 (1998); United States v. Chevre, 146 F.3d 622, 625 (8th

Cir.1998) (“We believe that ‘[w]here a defendant persists in

asserting entrapment, she cannot also claim acceptance of

responsibility.’ ”) (quoting United States v. Simpson, 995 F.2d 109,

112 (7th Cir.1993)).

The D.C. Circuit comes very close to holding that the

entrapment defense is incompatible with acceptance of

responsibility, but it has left the door just slightly ajar on that

issue. See United States v. Kirkland, 104 F.3d 1403, 1406 (D.C.Cir.)

(“It may be that a situation could be presented in which an

entrapment defense is not logically inconsistent with a finding

of a defendant’s acceptance of responsibility, even though we

12a

of the reduction. See United States v. Fleener, 900 F.2d 914

(6th Cir.1990) (affirming the district court’s decision to

grant a two-point reduction for acceptance of respon-

sibility because of the defendant's pretrial cooperation

with the government on the merits of the offense, not-

withstanding the defendant's assertion at trial of an

doubt it (that three of our sister circuits seem to think so is

sufficient reason to be somewhat cautious), but certainly

defense counsel's argument before the district court did not

raise it.”), cert. denied, 520 U.S. 1246, 117 S.Ct. 1857, 137 L.Ed.2d

1059 (1997).

The Seventh Circuit appears to be split internally. Compare

United States v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir.1994)

(finding that an entrapment defense if pleaded in good faith

“may possibly qualify” for a § 3E1.1 reduction, but in such a

case “a determination that a defendant has accepted

responsibility will be based primarily upon pre-trial statements

and conduct”), with United States v. Rector, 111 F.3d 503, 508 (7th

Cir.1997) (“[T]he adjustment [for acceptance of responsibility] is

rarely available to those who assert entrapment, a defense that

by its nature tends to preclude the acceptance of responsibility.

Essentially, the problem is that asserting entrapment is a denial

rather than an acceptance of responsibility. A defendant

asserting such a defense is saying, in effect, ‘I did it but it was

somebody else's fault that I did it.’ That is the antithesis of

remorse or acceptance of responsibility.”), overruled on other

grounds by United States v. Wilson, 169 F.3d 418, 428 n. 9 (7th

Cir.1999), cert. denied, 119 S.Ct. 2383 (U.S. 1999), and United

States v. Simpson, 995 F.2d 109, 112 (7th Cir.1993) (“Where a

defendant persists in asserting entrapment, she cannot also

claim acceptance of responsibility.”), and United States v.

Emenogha, 1 F.3d 473, 482 (7th Cir.1993) (same).

The Second Circuit has noted, but has yet to address the

issue. See United States v. Rosa, 17 F.3d 1531, 1552 (2d Cir.1994)

(expressly refusing to determine “whether a defendant who

claims ‘sentencing entrapment’ may ever receive the two-point

reduction”).

eT eT eRe ee me |

13a

entrapment defense). Like the Sixth Circuit, we hold that

a § 3E1.1 reduction is not per se unavailable just because

the defendant chooses to go to trial solely on an entrap-

ment defense.

The entrapment defense is founded upon the rule of

statutory construction that prohibits literal interpretation

of a statute that produces absurd results. In Sorrells v.

United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413

(1932), where the Supreme Court first recognized the

entrapment defense, the government’s argument against

recognition of the entrapment defense was tied to the

“letter of the statute” under which the defendant was

prosecuted. Id. at 446, 53 S.Ct. 210. The Supreme Court,

however, rejected a literal reading of the criminal statute,

and explained:

Literal interpretation of statutes at the

expense of the reason of the law and producing

absurd consequences or flagrant injustice has

frequently been condemned... .

* * *

We think that this established principle of

construction is applicable here. We are unable to

conclude that it was the intention of the Con-

gress in enacting this statute that its processes of

detection and enforcement should be abused by

the instigation by government officials of an act

on the part of persons otherwise innocent in

order to lure them to its commission and to

punish them. We are not forced by the letter to

do violence to the spirit and purpose of the

statute.

l4a

Id. at 446-48, 53 S.Ct. 210. Thus, the entrapment defense is

a creature of statutory construction that concedes that the

defendant’s conduct satisfies the essential factual ele-

ments of guilt, but nonetheless refuses to apply the stat-

ute to an entrapped defendant to avoid creating an

absurd result. See also Jacobson, 503 U.S. at 553, 112 S.Ct.

1535 (reaffirming quoted passage from Sorrells); Sherman

v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d

848 (1958) (“Congress could not have intended that its

statutes were to be enforced by tempting innocent per-

sons into violations.”); United States v. Russell, 411 U.S.

423, 428, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (“[In Sor-

rells,| Mr. Chief Justice Hughes, speaking for the Court,

held that as a matter of statutory construction the defense

of entrapment should have been available to the defen-

dant.”); id. at 433-34, 93 S.Ct. 1637 (“Critics of the rule

laid down in Sorrells and Sherman have suggested that its

basis in the implied intent of Congress is largely ficti-

tious. . .. Arguments such as these, while not devoid of

appeal, have been twice previously made to this Court,

and twice rejected by it, first in Sorrells and then in

Sherman.”); Ronald J. Allen et al., Constitutional Criminal

Procedure 980 (3d ed. 1995) (“[T]he Court has consis-

tently reaffirmed that the key to the federal entrapment

defense is the absence of predisposition on the part of the

defendant and that the defense exists as a matter of

statutory construction.”).

Given that the entrapment defense emanates from

such a rule of statutory construction, we believe that a

sentencing court may apply an acceptance-of-respon-

sibility reduction to a defendant who asserts the entrap-

ment defense. The commentary to § 3E1.1 states that

ieee,

15a

conviction by trial “does not automatically preclude a

defendant from consideration for such a reduction.”

U.S.S.G. § 3E1.1, cmt. (n.2).

In rare situations a defendant may clearly dem-

onstrate an acceptance of responsibility for his

criminal conduct even though he exercises his

constitutional right to a trial. This may occur, for

example, where a defendant goes to trial to

assert and preserve issues that do not relate to

factual guilt (e.g., to make a constitutional chal-

lenge to a statute or a challenge to the applicability

of a statute to his conduct). In each such instance,

however, a determination that a defendant has

accepted responsibility will be based primarily

upon pre-trial statements and conduct.

Id. (emphasis added). As the long line of Supreme Court

entrapment cases show, the entrapment defense is just

such a “challenge to the applicability of a statute” to the

defendant’s conduct. The defendant, when defending at

trial based only on the entrapment defense, is essentially

saying: “I am factually guilty, but it was the government

that induced commission of the crime and planted the

criminal intent. I thereby was entrapped. Therefore, Con-

gress did not intend for this criminal statute to apply to

my conduct.” Thus, the entrapment defense is one of

those “rare situations” contemplated by the Sentencing

Guidelines in which a defendant may go to trial and still

receive an acceptance of responsibility reduction.

We are mindful of this court’s prior statement in

United States v. Hansen, 964 F.2d 1017, 1021 (10th

Cir.1992), that it is “difficult for this Court to envision

how the defendant argues that he affirmatively accepted

responsibility for his criminal action when throughout

l6a

the proceedings he maintained that his criminal action

was not his fault, but rather, it was the result of govern-

ment inducement.” Nothing we say today is inconsistent

with this statement. We hold only that raising the entrap-

ment defense does not necessarily foreclose the possibility

of receiving a reduction for acceptance of responsibility,

but that does not mean that the simple assertion of the

entrapment defense coupled with acknowledgment of the

underlying criminal activity automatically entitles a

defendant to a two-point acceptance of responsibility

reduction. See also United States v. Hoenscheidt, 7 F.3d 1528,

1532 (10th Cir.1993) (no error where sentencing court

acknowledged the entrapment defense “does not neces-

sarily bar” a § 3E1.1 reduction); United States v. Wallace,

133 F.3d 933 (10th Cir. 1998) (unpublished) (“[I]t is possi-

ble that a failed entrapment defense could coexist with an

acceptance of responsibility adjustment.”), cert. denied,

__ US. __, 118 S.Ct. 1855, 140 L.Ed.2d 1103 (1998);

United States v. Ortegon-Antillon, 65 F.3d 179 (10th Cir.

1995) (unpublished) (“A defendant who forces the gov-

ernment to prove its case at trial will only rarely warrant

a reduction for acceptance of responsibility. One such rare

occasion may arise when a defendant who otherwise

expresses remorse, contrition, or acknowledgment of

wrongdoing nonetheless pleads not guilty because of

entrapment.”) (citation omitted). A defendant will need

to evidence acceptance of responsibility, primarily

through pre-trial statements and conduct, before an

acceptance of responsibility reduction would be war-

ranted. See U.S.S.G. § 3E1.1, cmt. 2.

Some courts have suggested that the entrapment

defense and U.S.S.G. § 3E1.1 are incompatible because the

eR ee

17a

entrapment defense challenges the factual element of

intent. See United States v. Brace, 145 F.3d 247, 265 (5th

Cir.) (en banc), cert. denied, __ U.S. __, 119 S.Ct. 426, 142

L.Ed.2d 347 (1998); United States v. Kirkland, 104 F.3d 1403,

1405 (D.C.Cir.), cert. denied, 520 U.S. 1246, 117 S.Ct. 1857,

137 L.Ed.2d 1059 (1997). Entrapment is indeed “intert-

wined” with the issue of intent, United States v. Fadel, 844

F.2d 1425, 1430 (10th Cir.1988), because the jury is asked

to consider “whether that intent was the result of Govern-

ment inducement,” Mathews v. United States, 485 U.S. 58,

65, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). However, asking

whether the defendant’s intent was the result of govern-

ment inducement does not challenge the factual element

of intent. As the Supreme Court has clearly stated,

“[entrapment] is rooted . . . in the notion that Congress

could not have intended criminal punishment for a

defendant who has committed all the elements of a pro-

scribed offense, but was induced to commit them by the

Government.” United States v. Russell, 411 U.S. 423, 435,

93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (emphasis added); see

also, Ronald J. Allen et al., Constitutional Criminal Pro-

cedure 999 (3d ed. 1995) (“Typically defendants claiming

entrapment do not challenge the prosecutor’s proof of the

elements of the offense.”). In this case, Garcia was

charged with possession of cocaine with intent to distrib-

ute. “To support a conviction of possession with intent to

distribute, the evidence must prove beyond a reasonable

doubt the following elements: (1) the defendant know-

ingly possessed the illegal drug; and (2) the defendant

possessed the drug with the specific intent to distribute

it.” LInited States v. Carter, 130 F.3d 1432, 1440 (10th

Cir.1997) (internal quotations omitted), cert. denied, ___

18a

U.S. __, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998). The

entrapment defense challenges neither of these elements.

Garcia admits that he knowingly possessed cocaine and

that he specifically intended to distribute the cocaine.

Instead, Garcia asserted the entrapment defense, which

functions as an “origin-of-intent” defense, conceding that

he had the requisite criminal intent when the crime was

committed, but claiming that the requisite criminal intent

was planted by the government. If it is proven that the

government “originate[d] a criminal design, implant[ed]

in an innocent person’s mind the disposition to commit a

crimina! act, and then induce[d] commission of the

crime,” Jacobson, 503 U.S. at 548, 112 S.Ct. 1535, then

pursuant to a rule of statutory construction, the criminal

statute does not apply to the defendant, and he or she

should therefore not be punished.

Even if the entrapment defense were viewed as chal-

lenging the factual element of intent, under the law of

this circuit, we would still affirm the district court’s

acceptance-of-responsibility downward adjustment. In

United States v. Gauvin, 173 F.3d 798 (10th Cir.1999), the

defendant was charged with assault with a dangerous

2 The record belies any suggestion that Garcia “admit[ted]

and expresse[d] remorse” only after conviction. U.S.S.G.

§ 3E1.1, comment. (n.2). The sentencing court found that Garcia

“admitted his involvement in the offense since his initial

arrest.” Likewise, at the evidentiary hearing and sentencing

below, the judge added: “I think Mr. Garcia is entitled to

acceptance of responsibility by virtue of the fact that he has at

all times admitted the acts that he has been accused of by the

Government in this case . . . Mr. Garcia has at all times admitted

what he did in this case. He admitted it prior to trial.”

19a

weapon and assault on a federal officer. The defendant

“went to trial only to contest the legal element of

intent. . . . [The defendant] disputed whether his

acknowledged factual state of mind met the legal criteria

of intent to harm or cause apprehension.” Id. at 806. He

argued at trial, to no avail, that “he did not intend, while

drunk and scared, to cause injury to others. [He also]

contended that his drunkenness rendered him incapable

of forming the requisite mens rea.” Id. The defendant was

convicted, but the district court granted him a § 3E1.1

reduction. We affirmed, reasoning that the defendant's

“defense — essentially a challenge to the applicability of

the statute to his conduct, see U.S.S.G. § 3E1.1, cmt. n. 2 -

does not as a matter of law preclude application of the

guideline.” Id. If an intoxication defense challenging the

mens rea of a crime does not necessarily foreclose an

acceptance-of-responsibility reduction, then neither does

an entrapment defense. Accordingly, the district court’s

ruling was consistent with the law and it committed no

error in granting Garcia a § 3E1.1 downward adjustment.

B. Minor participant

The trial court granted Garcia a two level reduction

from the base offense level because he was a “minor

participant.” The court explained:

[T]he defendant is viewed as a minor partici-

pant. The defendant was recruited by a paid

informant who befriended the defendant and

his pregnant daughter for several months with

the goal to ensnare him in this illegal activity

and who preyed on the defendant’s sympathy

20a

for the paid informant’s seemingly impov-

erished lifestyle.

A trial court’s determination as to whether a defen-

dant was a minimal or minor participant is a factual

finding that we review only for clear error, “giving due

deference to the court’s application of the sentencing

guidelines to the facts.” United States v. James, 157 F.3d

1218, 1219 (10th Cir.1998). This court “will not reverse the

district court unless the court’s findings are without fac-

tual support in the record, or if after reviewing the evi-

dence we are left with the definite and firm conviction

that a mistake has been made.” United States v. Gault, 141

F.3d 1399, 1404 (10th Cir.), cert. denied, __ U.S. __, 119

S.Ct. 253, 142 L.Ed.2d 208 (1998). After reviewing the

evidence, we are indeed left with a definite and firm

conviction that a mistake has been made.

Section 3B1.2 states that the trial court should

decrease the defendant’s offense level by two levels “[iJf

the defendant was a minor participant in any criminal

activity.” “[MJinor participant means any participant who

is less culpable than most other participants, but whose

role could not be described as minimal.” U.S.S.G. § 3B1.2,

cmt. (n.3). “A ‘participant’ is a person who is criminally

responsible for the commission of the offense, but need

not have been convicted,” but does not include an under-

cover law enforcement officer. U.S.S.G. § 3B1.1, cmt. (n.

1). The three “participants” in Garcia’s crime were Garcia

and the two men who delivered the cocaine to Garcia,

Rafael Chavez and Dagoberto Torrez, in order for him to

sell it to the government’s undercover buyers. It would

be a mistake to conclude both that Garcia is less culpable

ee ee

2la

than Chavez and Torrez, and that Garcia’s role was mini-

mal. Chavez and Torrez were the suppliers of the cocaine,

and Garcia was the seller who took the active step of

contacting the suppliers to arrange the drug deal. We find

it clear error to conclude that a seller of nearly three

kilograms of cocaine who helped orchestrate its sale by

contacting suppliers was a “minor participant.” The fact

that the government “preyed” on Garcia’s sympathy does

not diminish his substantial role in the cocaine transac-

tions at issue.?

C. Aberrant behavior

At sentencing, the district court granted a downward

departure to Garcia because his crime of conviction was a

single act of aberrant behavior. The district court

explained:

The Court finds that this defendant has a mini-

mal criminal history. The defendant has

numerous letters of support from the commu-

nity attesting to his honesty and integrity in the

3 Garcia contends that he was a “minor participant”

because it was the government and one of the suppliers that “set

the price of the cocaine, not Garcia; that Garcia did not arrange

the location; that Garcia did not supply the cocaine, did not

know the purity of the drugs, and did not have any control over

the amount of the drugs that were purchased; and that Garcia

did not stand to receive any financial gain from the transaction

and got involved only because of the friendship he felt toward

Horcasitas.” However, this argument, assuming it to be true,

fails to rebut the facts outlined above, which clearly establish

that Garcia’s role was nevertheless not minimal. See U.S.S.G.

§ 3B1.2, cmt. (n.3). While Garcia may not have run every facet of

the drug deal, his role within it was still substantial.

22a

manner which he conducted his business in Las

Cruces, New Mexico for many years. Several

letters confirmed the defendant’s sympathy for

people in need. The paid informant used this to

entice this previously law-abiding member of

the community. The Court will depart seven (7)

levels, from a base offense level of twenty-two

(22), to a base offense level of fifteen (15). A

base offense level of fifteen (15) and a criminal

history category of I establishes a guideline

imprisonment range of eighteen (18) to twenty-

four (24) months.

“The aberrance of a criminal act is an encouraged

factor for departure.” United States v. Talk, 158 F.3d 1064,

1072 (10th Cir.1998), cert. denied, __ U.S. __, 119 S.Ct.

1079, 143 L.Ed.2d 81 (1999). “Under our case law, the

aberrant nature of a criminal defendant's offense conduct

may properly be considered as a mitigating factor in a

downward departure decision.” United States v. Jones, 158

F.3d 492, 500 (10th Cir.1998). The “determination of

whether an individual defendant’s offense conduct is

aberrational, like the decision to depart, requires consid-

eration of unique factors not readily susceptible of useful

generalization. The district court is in the better position

to determine whether the defendant's offense conduct is

out of character for that individual. Accordingly, the dis-

trict court’s resolution of this largely factual question is

due substantial deference.” Id.

The government argues that in order for the aberra-

tional behavior departure to apply, the offense must be

“spontaneous, without substantial planning, and be com-

pletely aberrant from defendant’s background and per-

sonality.” As a result, the government asserts, Garcia’s

ici ceilaaiiinaliiaiaiiiiiiial

23a

“carefully planned” cocaine transaction cannot be

deemed aberrational. However, this circuit has never held

that application of the aberrant behavior downward

departure requires the crime at issue to have been sponta-

neous. This court focuses “our departure analysis not on

the number of discrete acts undertaken by the defendant,

but on ‘[t]he aberrational character of her conduct.’ ” Id.

(quoting United States v. Pena, 930 F.2d 1486, 1495 (10th

Cir.1991)). In Jones, this court upheld a downward depar-

ture based on the aberrance of a criminal act where a

defendant was convicted of possession of a firearm by a

prohibited person and providing false information to

obtain a firearm. In Pena, a downward departure due to

the aberrational nature of the defendant’s conduct was

affirmed where the defendant was convicted of driving a

car containing drugs across the border. Neither of the

facts in Jones nor Pena evince spontaneity - what the

government posits as a prerequisite to the aberrational

behavior factor for a downward departure.

The government also argues on appeal that the jury’s

rejection of the entrapment defense necessarily amounts

to a finding that Garcia was predisposed to commit the

offense, and that such predisposition precludes the aber-

rational behavior downward departure. This argument,

however, was not raised below and is unpersuasive, in

any event, since the jury, in rejecting the entrapment

defense, did not have to find Garcia predisposed; rather,

the jury, in rejecting the entrapment defense, could sim-

ply have found no inducement by the government.

As a result, the district court’s downward departure

based on aberrant behavior is affirmed.

24a

CONCLUSION

We AFFIRM the district court’s denial of Garcia’s

motion for judgment of acquittal and motions for a new

trial. We also AFFIRM the district court’s application of

the acceptance-of-responsibility downward adjustment

and aberrant behavior downward departure. The district

court’s application of the “minor participant” provision is

REVERSED, and we REMAND for resentencing in accor-

dance with this opinion.