Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Jorge Parra-Cabrera ("Cabrera") challenges his conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (A) (ii). Cabrera argues that he proved entrapment as a matter of law at trial, that his counsel was ineffective, and that the district court should have considered acceptance of responsibility when sentencing Cabrera. We affirm.

In order to show entrapment as a matter of law, there must be undisputed testimony making it patently clear that an otherwise innocent person was induced by a government agent to commit the crime by trickery, persuasion or fraud. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.), cert. denied, 471 U.S. 1139 (1985). The defense of entrapment involves two elements: (1) government inducement of the crime, and (2) lack of defendant's predisposition to commit the crime. Mathews v. United States, 485 U.S. 58, 62-63 (1987).

There was evidence that Cabrera initiated the first phone call between Cabrera and the informant, and further evidence that he called the informant four or five times. Cabrera stated to the informant that he had previously sold drugs. Despite his allegedly impecunious state, he had $2,500 in his possession at the time of arrest, leading to an inference he had been dealing in drugs beforehand. There was clearly sufficient evidence to submit the question of predisposition to the jury, which the court did with an appropriate instruction.

The existence of entrapment is ordinarily a question of fact for the jury. The court of appeals should not disturb the jury's finding unless, viewing the evidence in the light most favorable to the Government, no reasonable jury could have concluded the defendant was predisposed to commit the crime. United States v. Stenberg, 803 F.2d 422, 432 (9th Cir. 1986). There was clearly sufficient evidence in this case.

Cabrera claims that the Government's conduct was so outrageous it violated his due process rights. Cabrera failed to raise this issue at the trial level. Generally, issues not presented to the trial court cannot be raised for the first time on appeal. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). There are three exceptions to this rule: (1) when there is a change in the law; (2) when the issue is purely one of law and does not depend on the factual record; and (3) where plain error has occurred and injustice might otherwise result. Id. Cabrera meets none of these exceptions. Therefore, we will not address this claim.

Cabrera contends that he received ineffective assistance of counsel because his attorney failed to move for a judgment of acquittal after all the evidence was in. He contends this was a serious error because it precluded the district court from ruling on the sufficiency of the evidence and did not preserve the issue for appeal.

Our review of the record reveals that there was clearly sufficient evidence for the jury to render the verdict it rendered, and that the judge would have erred in entering a judgment of acquittal. Under the standard of Strickland, the performance of counsel was not deficient and no prejudice has been shown.

Whether defendant accepted responsibility for his crime is a factual determination, subject to the "clearly erroneous" standard of review. United States v. Gonzalez, 897 F.2d 1018, (9th Cir. 1990). The district court declined to adjust Cabrera's sentence for acceptance of responsibility. Cabrera's trial counsel failed to raise this issue at the sentencing hearing. It is inappropriate for us to consider this matter for the first time on appeal. Therefore, we will not disturb the district court's sentencing determinations.

AFFIRMED.