Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1988)

MEMORANDUM^** 

Wayne R. Davis appeals his conviction and sentence for credit card fraud in violation of 18 U.S.C. § 1029. We affirm the conviction and sentence, but vacate the $50 special assessment imposed on Davis.

* Phyllis Davis, a Citibank employee, used her access to company computers to cause credit cards designated for an individual bearing the same name as her husband, Wayne Davis, to be addressed and sent to the residence of herself and her husband. Citibank, United States Postal Service, and Secret Service officials participated in a coordinated investigation involving a controlled delivery of the credit cards to the address of Wayne and Phyllis Davis, based on their suspicion that Phyllis Davis had manipulated a credit card account. The investigators learned that Wayne and Phyllis Davis had used one of the credit cards to make several purchases and to obtain cash advances.

Secret Service agents arrested Wayne and Phyllis Davis outside their apartment. Agent Brewster read Wayne Davis his rights and obtained his permission to search the apartment. Brewster also told Davis that if he and his wife cooperated with the Secret Service agents, the United States Attorney would be notified of this fact. Subsequently, Davis confessed that he knew that the cards were obtained fraudulently, and he showed Brewster various items purchased with the cards. After Davis had made his statements, and before Secret Service agents transported him and his wife to jail, the agents and the Davises discussed arrangements for the care of their child while they were in detention overnight. Agent Brewster informed them that the child would have to stay with a relative or go to a child care center. Secret Service agents then drove Phyllis Davis and her child to the home of a relative who agreed to care for the child.

A grand jury indicted Wayne and Phyllis Davis for use of an unauthorized credit access device, with the intent to defraud and affecting interstate commerce, to obtain cash and merchandise of an aggregate value of over $1,000, in violation of 18 U.S.C. §§ 1029(a) (2) and (c) (1) (2). Wayne Davis pleaded not guilty and Phyllis Davis pleaded guilty. At trial, the district court granted Wayne Davis' motion for a hearing on his motion to suppress his post-arrest statements. The court found that the statements were made voluntarily. The court also refused to give Davis' requested jury instruction regarding his defense of entrapment. Wayne Davis was found guilty by the jury.

The district court sentenced Wayne Davis to five years in prison, with all but six months suspended, and imposed a $2,000 fine and joint restitution with Phyllis Davis. Phyllis Davis was sentenced to five years probation, 100 hours of community service, and a $1,000 fine. The judge indicated that he believed Wayne Davis was motivated by a desire to "beat the system," and that he was willing to let his wife take full responsibility for their conduct.

We review the trial court's findings as to what occurred during an interrogation for clear error; the conclusion that the confession was voluntary is reviewed de novo. United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987). We review the refusal to give a requested jury instruction for abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1405 (9th Cir. 1986). We also review a sentence within the statutory limits for abuse of discretion. United States v. Van Cauwenberghe, 827 F.2d 424, 434 (9th Cir. 1987), cert. denied, 108 S. Ct. 773 (1988).

II

Davis contends that the district court erred in denying his motion to suppress his allegedly involuntary post-arrest statements. This contention fails.

Due process does not bar the use of a confession as evidence unless government officials employed coercive interrogation tactics which rendered the defendant's confession involuntary as a matter of law. Wolf, 813 F.2d at 974. In order to determine the voluntariness of statements, we examine the totality of the circumstances to determine whether the government obtained the confession by coercion or improper inducement. United States v. Pinion, 800 F.2d 976, 980 (9th Cir. 1986), cert. denied, 480 U.S. 936 (1987). A promise that the defendant's cooperation will be brought to the prosecutor's attention does not constitute coercion. United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910 (1978). Officials may not threaten a parent with the loss of child custody in order to elicit cooperation. United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981); see also Lynumn v. State of Illinois, 372 U.S. 528, 534 (1963).

Agent Brewster informed Davis that the United States Attorney's office would be informed of any cooperation on the part of him and his wife. Subsequent to Davis' incriminating statements, Brewster assisted with arrangements for the child to stay with a relative, after explaining that the child would have to stay at a child care center if no other arrangement could be made. Brewster's conduct does not render Davis' statements involuntary, since the notification regarding the effect of cooperation was not coercive, the conversations regarding the care of the Davis child occurred after the statements were made, and the Davises were not threatened with loss of child custody. See Curtis, 562 F.2d at 1154; compare Tingle, 658 F.2d at 1335-57 (defendant was told that she would not see her child for a long time if she did not cooperate) with Lynumn, 372 U.S. at 533-34 (defendant was told that, if she did not cooperate, her cash assistance benefits would be cut off and she would lose custody of her children). Under the totality of the circumstances, Davis' post-arrest statements were voluntary, and the district court did not err in denying his motion to suppress. See Wolf, 813 F.2d at 974; Pinion, 800 F.2d at 980.

III

Davis argues that the district court erred in denying his requested jury instruction on the defense of entrapment. This argument also fails.

The trial court's failure to instruct the jury on the defendant's theory of defense constitutes reversible error if the theory is legally sound and the evidence makes it applicable to the case. United States v. Scott, 789 F.2d 795, 797 (9th Cir. 1986). To be entitled to an entrapment instruction, Davis must point to evidence of inducement to commit the crime charged on the part of the government, and evidence contradicting the defendant's predisposition to commit the offense. United States v. Kidd, 734 F.2d 409, 413 (9th Cir. 1984); see also United States v. Brandon, 633 F.2d 773, 778 (9th Cir. 1980). A denial of the requested instruction is permissible if a rational view of the evidence does not support the defense. Brandon, 633 F.2d at 778. A defense of entrapment is unavailable when the government merely affords the defendant an opportunity to commit an offense. United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir. 1984); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1976).

Government agents merely participated in a controlled delivery of the cards. There is no evidence that they induced Davis to possess the cards. Davis therefore was not entitled to an entrapment instruction. See Marcello, 731 F.2d at 1357; Reynoso-Ulloa, 548 F.2d at 1338 (defense of entrapment unavailable to defendant who readily accepts a propitious opportunity to commit an offense). Since a rational view of the evidence in the instant case does not support the defense of entrapment, the district court did not abuse its discretion in refusing to instruct the jury on the defense of entrapment. Scott, 789 F.2d at 797; Brandon, 633 F.2d at 778.

IV

Davis contends that the district court erred in imposing a prison term on him while his codefendant wife received a suspended sentence. This final contention fails.

A trial court has discretion to impose disparate sentences on codefendants, and a disparity in sentencing between codefendants does not indicate an abuse of discretion. United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986). However, a defendant must not be subjected to a more severe punishment because he exercised his right to stand trial. United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982). When the right to stand trial is implicated, the judge must give reasons for the disparity, see Endicott, 803 F.2d at 510, and take individual circumstances into account. United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987).

Davis went to trial and received six months in prison and four and a half years probation, while his wife pleaded guilty and received a suspended sentence. The district court found that Davis was unconcerned about ethical responsibilities and was willing to let his wife take full responsibility for their conduct. Because the trial judge gave ample reasons for Davis's sentence, the disparity in sentencing was permissible. See Vaccaro, 186 F.2d at 458 (defendant's longer sentence found not to constitute an abuse of discretion in light of his leadership role in the scheme). The disparate sentence imposed on Davis did not serve to penalize his decision to stand trial, and hence did not constitute an abuse of discretion. See Endicott, 803 F.2d at 510; Medina-Cervantes, 690 F.2d at 716.

V

Davis' sentence included a $50 mandatory special assessment pursuant to 18 U.S.C. § 3013. In light of our recent opinion declaring this statute unconstitutional, we vacate the assessment. See United States v. Munoz-Flores, No. 86-5326, slip op. 15153 (9th Cir. Dec. 12, 1988). The remainder of the judgment and sentence is affirmed.

AFFIRMED in part, VACATED in part.