Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 611 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Alfonso AVILA-CRUZ, Defendant-Appellant.

No. 89-50485.

United States Court of Appeals, Ninth Circuit.

Submitted Mar. 1, 1991.* Decided March 5, 1991.

Appeal from the United States District Court for the Southern District of California, No. CR 89-0056-01-RMB; Rudi M. Brewster, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before FLETCHER, PREGERSON and TROTT, Circuit Judges.


MEMORANDUM** 

Alfonso Avila-Cruz appeals his conviction at jury trial for one count of conspiracy to possess phencyclidine (PCP) with intent to distribute (Count 1), in violation of 21 U.S.C. §§ 841(a) (1) and 846, three counts of knowingly and intentionally distributing PCP within 1,000 feet of a school (Counts 2-4), in violation of 21 U.S.C. §§ 841(a) (1) and 845a(a), and one count of possession of PCP with intent to distribute (Count 5), in violation of 21 U.S.C. § 841(a) (1). Avila-Cruz contends that the evidence was insufficient to establish beyond a reasonable doubt that he was not the victim of entrapment with regard to the convictions for conspiracy (Count 1) and for possession with intent to distribute PCP (Count 5). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We will uphold a conviction if, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987).

"The question of entrapment is generally one for the jury, rather than for the court." Matthews v. United States, 485 U.S. 58, 63 (1988) (citation omitted). " [A] valid entrapment defense has two related elements: government inducement of the crime, and lack of predisposition on the part of the defendant to engage in the criminal conduct." Matthews, 485 U.S. at 63 (citations omitted); see also United States v. Smith, No. 89-30309, slip op. at 841, 858 (9th Cir. January 24, 1991) (no entrapment jury instruction required where defendant fails to produce evidence of both inducement and lack of predisposition). Predisposition is the primary element considered in the defense of entrapment. Id.1  " [C]redibility determinations ... are matters left to the trier of fact." United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988) (citation omitted).

Here, there was abundant evidence of Avila-Cruz's predisposition to participate in the conspiracy charged in Count 1 and the possession with intent to distribute offense charged in Count 5. Agent Love, the San Diego Police officer who worked undercover developing the case against Avila-Cruz, testified at trial that: (1) he first contacted Avila-Cruz because he had heard from various sources that Avila-Cruz was engaged in sales of PCP from the residence at 2106 Irving Street; (2) he personally purchased PCP from Avila-Cruz on three separate occasions prior to the occasion on which Avila-Cruz was allegedly entrapped; (3) he witnessed Avila-Cruz directing other individuals to sell PCP to various buyers who approached Avila-Cruz's house seeking to purchase PCP; (4) when he arranged to purchase 32 ounces of PCP from Avila-Cruz prior to Christmas, 1988 but was unable to come and get it, Avila-Cruz called Agent Love numerous times attempting to arrange a time for the sale before Avila-Cruz sold the 32 ounces of PCP to another buyer; and (5) he and Avila-Cruz made mutual arrangements for the purchase of another 32 ounces of PCP on the night of January 4 and the early morning of January 5, 1989.

Viewing this evidence and all reasonable inferences drawn from it in the light most favorable to the government, the trier of fact could conclude beyond a reasonable doubt that Avila-Cruz was predisposed to commit the crimes of conspiracy and possession with intent to distribute PCP as charged in Counts 1 and 5 of the indictment. Avila-Cruz's apparent reputation in the area as a source of PCP was evidenced by the numbers of individuals Agent Love witnessed approach and purchase PCP at Avila-Cruz's home and under Avila-Cruz's direction. Agent Love's testimony clearly suggested that Avila-Cruz was engaged in sales of PCP for profit. Finally, and most importantly, Agent Love testified that Avila-Cruz showed no reluctance at all in making the arrangements for the purchase of the 32 ounces of PCP on January 5, 1989.

The jury was entitled to believe Agent Love's testimony regarding Avila-Cruz's eagerness to sell PCP, See Vasquez, 858 F.2d at 1391. This testimony was sufficient to establish both that Avila-Cruz was a willing participant in the January 5, 1989 sale of PCP and that Avila-Cruz was predisposed to commit the crime of selling PCP. See Smith, No. 89-30309, slip op. at 860. Therefore, a rational trier of fact could have found Avila-Cruz guilty beyond a reasonable doubt of each essential element of the crimes charged. See Jackson, 443 U.S. at 326; Loya, 807 F.2d at 1488-1490.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Accordingly, Avila-Cruz's request for oral argument is denied. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

A finding of predisposition can follow consideration of factors such as:

(1) the character or reputation of the defendant

including any prior criminal record;

(2) whether the suggestion of criminal activity

was initially made by the Government (less

important);

(3) whether the defendant engaged in the criminal

activity for profit;

(4) whether the defendant evidenced reluctance to

commit the offense, overcome only by repeated

Government inducement or persuasion (most important); and

(5) the nature of the inducement or persuasion

supplied by the Government.

Smith, No. 89-30309, slip op. at 858-859 (citations omitted).

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