Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^* 

The defendant, Christopher David Lee, was convicted of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (1988). He appeals the conviction, arguing that the district court erred in refusing (1) to instruct the jury on the defense of entrapment; (2) to compel the production of a confidential informant; and (3) to compel the attendance of a defense witness who did not comply with a subpoena. We find Lee's contentions to be without merit and, accordingly, affirm the conviction below.

FACTS

In February 1988, a confidential informant told agents of the Drug Enforcement Agency ("DEA") that Lee was responsible for the distribution of one to two pounds of methamphetamine per week in San Diego County. The informant also told the agents that Lee was interested in soliciting the services of a contract killer to murder a methamphetamine trafficker named Bruce Belew. On March 18th, DEA agent Larry Lunsford, posing as a contract killer, called Lee to discuss Lee's desire to arrange for the murder of Belew. Lee acknowledged that he was interested in hiring a killer, but stated that Lunsford's price of $25,000 was high. At this point, Lunsford told Lee that he need not pay "strictly cash." Lee responded that he did not have "that kind of money available or any commodities available to trade in that amount at this point." Lunsford understood "commodity" to mean methamphetamine.

On April 7th, Lunsford again contacted Lee regarding the contract murder and was told that his services were not currently required because Belew had been jailed. Lunsford then told Lee that he would be interested in purchasing some "commodity" if some were available. Lee responded that " [t]here's always availability for that" and that he could probably obtain four to five pounds. He told Lunsford that he would check on the price and that Lunsford should call back the following day.

Lunsford did not again contact Lee until July 21st, at which time Lee told him that he no longer wished to have Belew murdered. Lunsford then expressed his interest in purchasing three to four pounds of the "product," i.e., methamphetamine. Lee responded that he was in the process of checking on the availability from his source and quoted a price of $8,000 per pound.

Several days later, Lee told Lunsford that he had contacted his source and that he could sell what Lunsford understood to be five pounds of methamphetamine for $32,000, i.e., "32 for 5." Lunsford asked Lee about the quality and Lee responded that it was "second hand," which Lunsford interpreted to mean one step removed from the final product. Lunsford asked Lee to reserve the supply and told him that he would call back the following day.

Lunsford was unable to make contact with Lee again until November 15th. He told Lee that he had been involved in a car accident, but was still interested in purchasing methamphetamine. Lee sounded apprehensive and indicated that he felt that he and his associates were being watched by the police. He gave Lunsford his telephone pager number and requested that he page him instead of calling his residence.

On November 28th, Lunsford paged Lee, and Lee returned his call. Lunsford informed Lee that he was in the San Diego area and suggested that they meet the following day to perform the transaction. Lee said that he would meet with him, but that he could not currently obtain a large quantity. Lunsford said that he would be interested in purchasing a small amount as a sample.

The following day, Lee met with Lunsford at a restaurant in Del Mar, California. Lee indicated that he had four to five different sources and that these sources "cooked" methamphetamine at least four times a month, at the rate of sixteen pounds per cook. He told Lunsford that a pound of the drug would cost between $8,000 and $10,000, and that an ounce would cost approximately $1,000. Lee then described the methamphetamine available for sale. He stated that he had two ounces of a white methamphetamine that was suitable for both ingestion through the nose and injection, and another two ounces of an "off-white" methamphetamine that was too potent for injection.

The transaction took place about an hour later in a shopping center parking lot. Upon handing Lunsford a box containing approximately four ounces of methamphetamine, Lee was arrested.

Following his arrest, Lee signed a consent form permitting DEA agents to search his residence. He directed the agents to a hidden compartment in the floor of a bedroom closet. Inside the compartment was a metal box containing approximately thirty-two grams of methamphetamine, a portable scale with white powder residue, a device designed to crush granular powders, small plastic bags, and a bag containing garlic.

On March 14-17th, 1989, Lee was first tried on the charge of possession of methamphetamine with intent to distribute. At the defense's request, the district court instructed the jury on the issue of entrapment. The jury could not reach a verdict, and a mistrial was declared.

A second trial was conducted on April 11-13th, 1989. The court stated that it had erred previously in giving the entrapment instruction, and that if the evidence was the same at the second trial as it had been in the first, the entrapment instruction would not be given. The court further denied Lee's motion to produce the confidential informant for interview. Finally, the court refused to compel the attendance of Lee's girlfriend as a defense witness, ruling that most of her testimony would be inadmissible. At this second trial, Lee was convicted, sentenced to five years in prison and four years of supervised release, and ordered to pay a fine of $7,500.

DISCUSSION

The first issue on appeal is whether the district court erred in refusing to instruct the jury on the issue of entrapment. While there is a conflict in the circuit as to the appropriate standard of review in this type of case, see United States v. Sotelo-Murillo, 887 F.2d 176, 179-80 (9th Cir. 1989) (citing conflicting cases), since the result in this case does not turn on whether the de novo or abuse of discretion standard is applied, we need not reach the issue at this time. See also United States v. Hoyt, 879 F.2d 505, 509 (9th Cir. 1989), modified, 888 F.2d 1257 (1989).

A defendant is entitled to an entrapment instruction if he can present some evidence that: (1) a government agent induced him to commit an illegal act; and (2) he was not predisposed to commit the act. Sotelo-Murillo, 887 F.2d at 179; Hoyt, 879 F.2d at 509. If the trial judge determines that the defendant has not made a showing of both inducement and lack of predisposition, he must deny the requested instruction. Hoyt, 879 F.2d at 509.

Lee argues that Lunsford induced him to sell the methamphetamine. He contends that it was Lunsford who first brought up the subject of drugs when he suggested that payment for his services as a contract killer need not be "strictly cash." He further argues that Lunsford contacted him numerous times and initiated discussions about purchasing drugs.

Lee's argument that Lunsford's actions constituted inducement has no merit. The record demonstrates that it was in fact Lee, not Lunsford, who first raised the subject of drugs as an alternative form of payment for the contract murder. In response to Lunsford's statement that Lee need not pay the entire amount in cash, Lee stated that he did not currently have any "commodities" to trade in return for the contract murder. In addition, " [i]nducement requires more than mere suggestion or solicitation by a government agent." United States v. Barry, 814 F.2d 1400, 1402 n. 2 (9th Cir. 1987) (citing United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978)). It is true that Lunsford contacted Lee a number of times and expressed his interest in purchasing drugs. But the record contains no evidence of harassment or coercion. Lunsford did not persuade Lee to commit the crime, but merely provided him with the opportunity to do so. " [E]vidence that Government agents merely afforded an opportunity or facilities for the commission of the crime [is] insufficient to warrant [an entrapment] instruction." Mathews v. United States, 485 U.S. 58, 66 (1988). Thus, Lee has failed to present any evidence suggesting that Lunsford induced him to sell the methamphetamine.

We conclude on that basis alone that the district court did not err in refusing to instruct the jury on the issue of entrapment.

Examination of the second element of the entrapment defense, Lee's predisposition to commit the illegal act, leads to the same conclusion. In determining whether a defendant is predisposed to commit a particular crime, we examine:

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 supplied by the Government.

United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (quoting United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978)).. Although no single factor is controlling, the defendant's reluctance to engage in the criminal activity is the most important. Id.

The record establishes that Lee was not reluctant to conduct the drug transaction. He never indicated to Lunsford that he was unwilling or unable to furnish the methamphetamine. Not once did he attempt to dissuade Lunsford from contacting him. In fact, on most occasions, he asked Lunsford to call him back on specific dates. His behavior at the meeting with Lunsford on the day of the transaction, where Lee discussed his methamphetamine sources and the drug's price and availability, indicated a desire to conduct business with Lunsford in the future. Thus, the evidence demonstrates that Lee willingly and eagerly entered into the drug transaction with the government agent.

An examination of the other factors set forth in Busby as relevant to the determination of predisposition further compels the conclusion that Lee was predisposed to commit the illegal act. The fact that he was seeking to contract for the murder of another drug trafficker is powerful evidence with respect to his character. Although Lee was entitled to offer testimony regarding his character and reputation as a law-abiding citizen, he failed to do so.

Lee argues that since Lunsford initiated the discussion concerning the purchase of drugs, this supports his contention of lack of predisposition. Even if Lee's characterization of the conversation were correct, " [g]overnment initiation of illegal activity ... is not determinative so long as the government only provides the defendant with an opportunity to commit a crime which he was already predisposed to commit." Busby, 780 F.2d at 807. The drug paraphernalia found at Lee's house, his familiarity with trafficker slang, and his knowledge of the different qualities and uses of methamphetamine suggest predisposition to sell drugs. The fact that a government agent initiated the drug transaction is not sufficient evidence of the lack of predisposition for purposes of establishing a right to a jury instruction.

The remaining two Busby factors are whether Lee profited from the criminal activity and the nature of the government's inducement and persuasion. Lee argues that there is no showing that he would profit from the sale of the four ounces of methamphetamine. Since we do not know the price at which Lee purchased the product, we cannot determine whether he profited from this particular sale. However, because Lee did not offer any evidence of legitimate sources of income, there may be some reason to suspect that his income came from the sale of drugs. Finally, despite Lee's contentions to the contrary, as we have concluded previously, all of the evidence tends to support the view that Lunsford did not persuade Lee to sell the methamphetamine, but merely provided him with the opportunity to do so. There is no evidence of harassment or coercion.

We therefore find that Lee has failed to present evidence on either prong of the entrapment defense that would warrant the giving of an entrapment instruction.

II. Failure to Compel Production of Confidential Informant

Lee also appeals the district court's refusal to compel the production of the confidential informant who initially told the DEA about Lee's drug dealing and his desire to hire a contract killer. He argues that the informant was a percipient witness and that by not ordering her production, the court prevented Lee from adequately pursuing his entrapment defense. In addition, Lee asserts that the court improperly allowed the informant's statements to DEA agents concerning Lee's prior drug sales into evidence, without permitting the defense to cross-examine her.

We first note that Lee was aware of the informant's identity before the second trial was conducted. In fact, in his motion requesting production, he identified her by name. Thus, the issue is whether the district court was required to compel the government to produce the informant, given that Lee knew her identity.

Lee has cited no authority for the proposition that the government has a duty to produce an informant whose identity is known. The only cases cited relate to situations where the identity of the informant is unknown and the defense is seeking to compel the government to disclose the identity. Clearly, these cases are inapplicable to the case at bar.

In United States v. Privett, 443 F.2d 528, 530 (9th Cir. 1971), the informant's identity was known to the defendant, and " [n]o showing was made by appellant of his effort to locate [the informant]. No subpoena was requested or obtained." The same is true in the case before us. In Privett, we concluded that under the circumstances described above the appellant could not complain of the government's failure to produce the witness. Id.; see also Williams v. United States, 273 F.2d 781, 795 (9th Cir. 1959), cert. denied, 362 U.S. 951 (1960) (the trial court did not err because the identity of the informant was disclosed and the appellants made no effort to subpoena the informant as a witness). The same result must obtain here.

Lee further contends that the district court erred in allowing Lunsford to testify that the informant had told DEA agents that Lee was dealing one to two pounds of methamphetamine a week. Lee argues that the informant's statements were inadmissible because they were hearsay and irrelevant. We find that the statements were not hearsay, because the court clearly instructed the jury that the statements were not offered for the truth of the matter asserted, but only to explain why Lunsford first contacted Lee. See Fed.R.Evid. 801(c).

Assuming arguendo that Lunsford's statements were inadmissible on relevancy grounds on the theory that it is not the state of mind of the government agent that is important, but rather the predisposition of the defendant to commit the offense, see United States v. McClain, 531 F.2d 431, 435 (9th Cir.), cert. denied, 429 U.S. 835 (1976), we nevertheless find that any error was harmless. See Fed. R. Crim. P. 52(a). As we stated earlier, Lee failed to introduce sufficient evidence regarding both inducement and predisposition to warrant an entrapment instruction. It is clear that striking the disputed evidence could not in any way have affected that conclusion. To the extent that the evidence may be considered as potentially affecting the jury's view of whether Lee engaged in the charged conduct, we consider any error non-prejudicial. Lee was caught red-handed. Thus, the evidence of his guilt was overwhelming, and there is little if any possibility that the informant's statements could have affected the verdict.

III. Failure to Compel Attendance of Defense Witness

The final issue on appeal is whether the trial court erred in refusing to issue a bench warrant to compel the attendance of Lee's girlfriend, Mary Jo Colla, as a defense witness. Lee contends that Colla would have been able to provide testimony relevant to the entrapment defense. His claim of error is two-fold. He argues that the court erred: (1) in ruling that her proffered testimony was inadmissible; and (2) in denying his request for a continuance to allow him to secure Colla's attendance.

The dispositive issue is whether the trial court abused its discretion in ruling that Colla's proffered testimony was inadmissible. United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987) (the district court's evidentiary rulings are reviewed for abuse of discretion), cert. denied, 484 U.S. 1064 (1988). During the trial, the defense told the court that Colla would not attend unless forced to do so by the United States Marshals. The court then requested an offer of proof concerning her testimony. The defense stated that Colla would testify that: (1) she was living with Lee during the relevant time period; (2) she was aware of the conversations between Lee and a person she thought was a hitman concerning the possible murder of Belew, the other drug trafficker; (3) Belew had threatened and harassed her and Lee; (4) she knew the informant; (5) the box discovered in Lee's home had been dropped off by a man who had told Lee to keep it until someone else picked it up; and (6) she told Lee not to tell the hitman that he would not sell him drugs, but to keep him at arm's length in the hope that he would eventually look for drugs elsewhere.

The court ruled that almost all of this testimony was inadmissible. Because the government stipulated to the only portion the district judge considered admissible, the testimony that Colla was living with Lee, the court refused to issue a bench warrant.

We agree that most of the remainder of the testimony was inadmissible. First, since Colla was not a party to any of the conversations between Lunsford and Lee, any information that she may have had about the conversations was second-hand and therefore inadmissible hearsay. Second, the proffered testimony that Belew had harassed Colla and Lee, and that Colla knew the informant, was irrelevant both to the issue of entrapment and to the sale of the drugs. As such, this evidence was inadmissible. See Fed.R.Evid. 402.

However, the testimony that the box discovered in Lee's home did not belong to Lee, and that Colla had told Lee not to tell the hitman that he would not sell him drugs but to keep him at arm's length in the hope that he would eventually look for drugs elsewhere may not have been inadmissible. We nonetheless find that any error on the part of the trial court was harmless. The testimony relates principally to the question of Lee's predisposition. However in holding Lee's evidence regarding entrapment insufficient to warrant a jury instruction, we have concluded that Lee fell short with respect to both necessary elements--predisposition and inducement. The evidence would not tend to enable Lee to overcome the second obstacle. To the extent that the evidence regarding the ownership of the box may have been considered by the jury as tending to prove that Lee was engaged in narcotics dealings, we need only say, as we did earlier that given the circumstances of his arrest, it is highly unlikely that the evidence in question could have affected the verdict.

Finally, although the record does not reflect any request for a continuance, we note that we would not reverse the district court's denial in any event, because there is no showing that Lee suffered prejudice as a result. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985) (to obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his request for a continuance), modified on other grounds, 764 F.2d 675 (1985).

AFFIRMED.