Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

MEMORANDUM^* 

Appellant, Milton Brown, appeals his conviction under 21 U.S.C. § 846 (conspiracy to distribute a narcotic drug controlled substance), 21 U.S.C. §§ 841(a) (1) and 846 (possession with intent to distribute a narcotic drug controlled substance), and 18 U.S.C. § 2(a) (aiding and abetting a section 841(a) (1) violation). Brown was sentenced to 10 years in prison for violating Sec. 846, a consecutive eight year term for violating Sec. 841(a) (1), a concurrent 10 year term for violating Sec. 841(a) (1) and Sec. 2(a).

On appeal, Brown contends that the trial court erred in failing to give a requested entrapment instruction and erred under Fed.R.Evid. 404(b) in admitting evidence of Brown's prior drug activity.¹  We review each of these contentions in turn and affirm.

Factual Background

Between 1984 and 1986 appellant Brown sold cocaine to a man named Frank Miller. Miller began acting as a government informant in 1986. In March 1987, Miller, acting in his capacity as an informant, spoke with the appellant who told Miller that he could supply cocaine at a good price. Miller introduced the appellant to Investigator Henry of the Santa Monica Police Department, who was acting undercover as Donald Dane, a purchaser of cocaine. There followed a number of tape-recorded telephone conversations between the appellant, Miller and Investigator Henry.

On April 16, 1987, the appellant, Miller and Investigator Henry agreed to meet at a shopping center so that the appellant could sell Investigator Henry two ounces of "rock" cocaine. The appellant and his common-law wife, codefendant Denise Touchard, arrived at the shopping center. Miller, Investigator Henry and the appellant met in the undercover police vehicle. The appellant gave Investigator Henry a plastic bag which contained two grams of rock cocaine. Investigator Henry asked the appellant why he had brought two grams of rock cocaine instead of two ounces, as had been negotiated. The appellant replied that he thought Miller wanted two grams and promised to bring two ounces at the next meeting.

Through subsequent telephone conversations between Miller, Investigator Henry, Touchard and the appellant, another meeting was arranged in which the appellant would sell Investigator Henry two ounces of cocaine.

On May 15, 1987, Investigator Henry and Miller met the appellant on a street corner. Brown asked Investigator Henry if he had the money and Henry replied that he did. The appellant told Investigator Henry to drive with him to the shopping center, where Touchard was waiting with the rock cocaine. Investigator Henry drove with the appellant, and Miller followed in the undercover car.

Upon arriving at the shopping center, Investigator Henry handed the appellant the money ($2200). The appellant signaled to Touchard who walked over to the undercover police vehicle and placed a package containing approximately two ounces of rock cocaine in the vehicle.

The appellant spoke with Investigator Henry and Miller several times in May and June for the purpose of arranging another sale. Several sales were arranged, but they all fell through because of disagreement as to when the money should be delivered.

In September, 1987, Miller and Investigator Henry reestablished contact with the appellant. On September 9, 1987, the parties agreed that the appellant and his new girlfriend, "Dee Dee" would sell Investigator Henry five kilograms of cocaine for $105,000. Dee Dee would meet Investigator Henry and Miller, would view the money and would contact the appellant to complete the deal.

Miller, Investigator Henry and Special Agent Hill of the Drug Enforcement Administration drove to the location. Dee Dee arrived and after viewing the money telephoned the appellant from the undercover police car. Dee Dee left the location to pick up the appellant.

Approximately one hour later, the appellant and codefendant Power arrived at the location. The appellant sat in the back seat of the undercover police car. According to the appellant, the five kilograms of cocaine was at a park; everyone drove to the park to complete the deal.

The appellant and Investigator Henry walked through the park in an unsuccessful attempt to locate the persons bringing the cocaine. The appellant and codefendant Power then went to make a telephone call to try and locate the cocaine. They returned and said that the cocaine was en route. After making several phone calls from the undercover police car, the appellant told Investigator Henry he was going to find the people with the cocaine. Codefendant Power stated "like, man, I know they have the stuff. I seen it. I don't know what is taking them so long. They do deals like this all the time." The appellant and Power left the park and were arrested.

Investigator Henry then telephoned Dee Dee. Through a woman who answered the phone, Dee Dee told Investigator Henry that although she did not know where the appellant was, she still wanted to do the deal. She said the appellant would get his money later and agreed to meet Investigator Henry later that night.

At 10:00 p.m. that night, Dee Dee and codefendant Wright met with Investigator Henry. Dee Dee told Henry that the five kilograms of cocaine was in the trunk of a vehicle parked two blocks away. Investigator Henry drove with Dee Dee and Wright to the other location to view the cocaine.

On the way to the other vehicle, Dee Dee and Wright apologized for being delayed and explained that they were busy making "runs" and that in the future it would not take as long. When they arrived, the lights of the other vehicle flashed twice and Wright stated, "There he is." Dee Dee told Investigator Henry to walk over to the car and look at the "stuff." The driver of the other vehicle, codefendant Halliburton, got out of the car, opened the trunk, removed a red kilogram-sized package from a bag in the trunk. Halliburton handed the package to Investigator Henry and told Henry that the other four kilograms were in the bag. Investigator Henry cut a small window in the package and observed that cocaine was in the package.

Dee Dee, Wright and Investigator Henry followed Halliburton to the undercover police vehicle where the money was to be exchanged for the drugs and they were arrested.

Entrapment Instruction

The appellant contends that the district court abused its discretion in refusing to give an entrapment instruction. "In order to establish entrapment a defendant must show: (1) that he was induced to commit the crime by a government agent; and (2) that he was not otherwise predisposed to commit the crime." United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986) (internal citations omitted). The appellant correctly argues that the defendant need only present "slight" evidence of both elements of the entrapment defense. But, contrary to appellant's contention, the defense does not go to the jury once the defendant presents some evidence of inducement and predisposition. Rather, "the burden shifts to the prosecution to prove beyond a reasonable doubt either that there was no inducement or that the defendant was predisposed to commit the crime." United States v. Hoyt, No. 87-1224, slip op. at 8 (9th Cir. March 17, 1989). "If the prosecution has rebutted a showing of either inducement or a claim of lack of predisposition so that no rational jury could entertain a reasonable doubt as to either element, the trial judge's duty is to deny a request to give the entrapment instruction." Id.

Contrary to the government's contention a district court's determination that the defendant's evidence was insufficient to require an entrapment instruction is a question of law and we review de novo. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987).² 

Review of the record indicates Brown did not present evidence sufficient to satisfy either element. First, Brown failed to show that he was induced by the government's informant, Miller, to commit the illegal act. According to the appellant, the inducements consisted of Miller's initial telephone contact and numerous subsequent calls to Brown. The appellant also argues that Miller "set up" Brown because Miller wanted to "avenge himself."

Inducement requires more than mere suggestion or solicitation by a government agent. United States v. Lee, 846 F.2d 531, 536 (9th Cir. 1988) (internal citations omitted). In his first telephone conversation with Brown, Miller discussed the fact that he was going to purchase narcotics from a Mexican drug dealer. During this conversation, it is Brown who offered a better price to Miller and discussed receiving a kickback for getting Miller a good price. The fact that undercover agents, assisted by confidential informants, initiated the drug buys proves only that the government furnished the opportunity for the commission of the offenses, and is clearly insufficient to warrant an entrapment instruction. United States v. Kidd, 734 F.2d 409, 413 (9th Cir. 1984) (the fact that the government made the initial contact with the defendant, and not vice versa, does not of itself show entrapment). The appellant incorrectly argues that Brown was induced to commit the illegal act because the informant wanted to set him up. Here, the motive behind Miller's decision to act as an informant does not undermine the fact that Brown previously sold drugs to Miller. Hence, there are no facts to indicate any government agent induced Brown to commit the crime.

Brown also fails to meet the no predisposition prong of the entrapment defense. Courts have identified several factors as being relevant to predisposition: the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated government inducement or persuasion; and the nature of the inducement or persuasion. United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978). The "most important factor ... is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated government inducements." Id.

The evidence clearly demonstrates that Brown was predisposed to commit the crime. In one of the taped telephone conversations between the government informant and Brown, Brown acknowledged that he had been in the drug business for 31 years and that he had been dealing with this particular supply for 16 months. The evidence establishes that Brown engaged in illegal drug deals for profit.

Additionally, there is nothing in the record to suggest hesitancy or reluctance on the part of Brown. Brown's argument that the duration of the investigation and the frequent telephone calls made by the informant to Brown is evidence of Brown's reluctance to consummate the deal is without merit. Although the investigation lasted one year, the initial contact with Brown lasted four months (March to June 1987) and resulted in Brown selling Investigator Henry two grams and two ounces of "rock" cocaine. Contact between Miller and Brown was temporarily suspended until September 1987 when the five kilogram deal was arranged. The telephone calls do not indicate reluctance; rather, Brown and Investigator Henry disagreed over the mechanics of the deal and Brown was attempting to persuade Investigator Henry on how to complete the deal. Thus, the evidence shows that Brown was strongly predisposed to commit the offenses for which he was convicted and no instruction on entrapment was warranted.

Fed.R.Evid. 404(b)

Defense counsel initially called the government's informant, Miller, as a witness on his own behalf. At side bar, the government stated that it intended to elicit from Miller testimony of Brown's prior illegal drug dealings with Miller. After initially objecting to this evidence, appellant contends that he agreed to withdraw his objection to this evidence because the district judge agreed to give an entrapment instruction. After hearing all the evidence, however, the district judge decided not to give an entrapment instruction, but did instruct the jury that:

You are hereby instructed that the testimony of Frank Miller regarding his alleged prior drug dealings with Milton Brown is to be considered by you not for the purpose of proving that Mr. Brown acted in conformity therewith. In other words, you are not to consider this evidence as proof that he committed the offense--the present offenses charged. This testimony was admitted and should be considered by you only as it bears on Mr. Brown's motive, opportunity, intent, preparation, plan or knowledge to commit the crimes charged in Counts three and four.

Since the entrapment instruction was not permitted, the appellant argues that state of mind was not a contested issue. Under United States v. Hodges, 778 F.2d 1475 (9th Cir. 1985), the appellant contends that the judge must limit the use of Rule 404(b) evidence to prove an element of the crime only if the existence of the element is a contested issue.

The determination of whether to admit or exclude evidence under Rule 404(b) "is generally a matter within the discretion of the trial court, and will not be upset absent an abuse of discretion." United States v. Green, 648 F.2d 587 (9th Cir. 1981) (per curiam).

Contrary to the appellant's contention, in this case Brown's state of mind was in dispute. Under 21 U.S.C. § 841(a) (1) the prosecutor must prove beyond a reasonable doubt that Brown intentionally caused to be delivered or delivered rock cocaine to another. Under 18 U.S.C. § 2(a), the government must prove that Brown acted with the knowledge and intention of helping a codefendant possess cocaine with the intent to distribute it; and under 21 U.S.C. § 845 the government must prove that Brown joined the drug conspiracy knowing of the unlawful plan and intending to help carry it out. Thus, setting forth Brown's prior drug deals with Miller was highly probative of Brown's knowledge, motive and intent and was a foundational prerequisite to establishing the charged crimes. See Green, 648 F.2d at 593.

The defense's position in his closing argument was that "Brown did not intend to possess to distribute five kilos of cocaine;" and that "Brown was not going to deal drugs. Brown intended to go to the location and take the one hundred and five thousand dollars and not deliver any drugs. [Brown's] intentions were to go there, take the money, and run." The government can offer evidence of prior bad acts when it appears that the defense will raise lack of intent as a defense. See United States v. Hooten, 662 F.2d 628, 635 (9th Cir. 1981). Here, the challenged evidence is highly probative of motive and is relevant to counter the appellant's anticipated "rip off" defense.

"When a prior bad act is relied upon to prove intent, similarity between the events must be shown to establish the threshold requirement of relevance." United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Brown's prior illegal drug dealings were similar in nature and close in time to the charged crime. Brown contends that the evidence of the prior deals are not similar to the current charge because Brown allegedly only sold small quantities of cocaine to Miller. United States v. Mehrmanesh, 689 F.2d 872 (9th Cir. 1982), upon which Brown relies, does not support this conclusion. In that case, we held that prior drug use is not similar to current drug sales. Here, regardless of the amount sold, Brown's prior dealings with Miller involved the sale of narcotics, not the personal use of narcotics. The requisite similarity has been established.

Appellant also contends that the district court did not balance the probative value of the evidence versus the prejudicial impact on the accused. It appears from the record that the district court--albeit after the evidence had been admitted--adequately weighed the probative value and the prejudicial effect of the evidence.³ 

The district court found the evidence of Brown's previous illegal drug sales to be relevant to Brown's state of mind as to this narcotics deal. This was especially significant in light of the elements necessary to establish the charged offenses and the appellant's "rip off" defense. Appellant argued the issue of prejudice and the district court clearly rejected the argument. On this record we cannot say that the district court abused its discretion in admitting the evidence of Brown's prior illegal drug dealings.

AFFIRMED.