Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1498 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Fong YANG, Defendant-Appellant.

No. 88-1138.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided March 1, 1989.

Before WILLIAM A. NORRIS, NOONAN, and LEAVY, Circuit Judges.


MEMORANDUM* 

Defendant-appellant Fong Yang was convicted of possession of opium with intent to distribute, in violation of Title 21, U.S.C. 841(a) (1). On appeal, Yang raises two challenges to his conviction: 1) he was entitled to a jury instruction on the defense theory of entrapment; and 2) he was denied due process as a result of comments made by the judge during trial. We consider each of these claims in turn.

* THE ENTRAPMENT INSTRUCTION

The district court refused to instruct the jury on the defense theory of entrapment. We review the trial court's refusal to give instructions on entrapment for an abuse of discretion. United States v. Lee, 846 F.2d 531, 534 (9th Cir. 1988).

The defense of entrapment has two elements: (1) the defendant was induced to commit the crime by a government agent, and (2) he was not otherwise predisposed to commit the crime. U.S. v. Barry, 814 F.2d 1400, 1401 (9th Cir. 1987). In this circuit "the trial judge must give the instruction if there is some evidence of government inducement, regardless of who produced that evidence." Id. at 1402 (footnote omitted).

Yang argues that the evidence presented at trial showed that he was induced by the government to engage in criminal activity. Yang contends that a jury could have found inducement from the fact that the letter carrier, a government agent, pressured Yang to sign for the package. Yang also claims that a jury could find that the government's actions had the effect of inducing him to engage in criminal activity because of his culture's traditional deference to all government officials, including postal service workers. In other words, Yang claims that the jury could have concluded, based on his testimony and other evidence introduced at trial, that Yang believed he had no alternative but to sign for the package and try to deliver it to its rightful owner once the letter carrier asked him to accept the package.

While we are not unsympathetic to Yang's contention that he felt pressured to sign for the package because of his unfamiliarity with the English language and the workings of our postal service, we do not believe that a jury could rationally find from these facts that the government acted to induce Yang to commit the crime with which he is charged. Although these facts may have some bearing on Yang's initial decision to accept the package, they have no bearing on the crucial issue of whether the government induced him to engage in the criminal activity involved here--possession with intent to distribute.

It is not enough that there is evidence that the government provided the defendant with the means or opportunity to commit a crime. "It is well settled that the fact that the officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution." Sorrells v. United States, 287 U.S. 435, 441 (1932). As this court has observed, "the lone fact that the Government or its agents made the initial contact is evidence only that the Government furnished the opportunity for the commission of the crime." United States v. Glaeser, 550 F.2d 483, 487 (9th Cir. 1977) (citing United States v. Christopher, 488 F.2d 849, 850-51 (9th Cir. 1973)). It does not show inducement or persuasion. Glaeser, 550 F.2d at 487.

Yang fails to cite any evidence in the record that supports his claim that the government induced him to commit the crime with which he is charged--possession with intent to distribute. Indeed, there is no evidence in the record that the government had any contact with the defendant beyond delivering to his home a package addressed to someone with his last name. Although our court has not defined precisely what it means for the government to induce an otherwise innocent person to commit a crime, we have frequently observed that entrapment requires repeated acts of persuasion by the government. See e.g., United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978). In the instant case, there is no evidence that the government, through the letter carrier or any other agent, encouraged or persuaded Yang to decide to deliver the package to another person, as Yang testified that he was planning to do.

Indeed, the evidence tends to rebut Yang's contention that he was induced by the government to commit the crime. DEA officials had Yang's house under surveillance after the controlled delivery was made. They observed Yang place the package first on the ground by the side of the house and then under a box on top of a shed in the backyard. When Yang's house was searched afterwards, Yang told the police interpreter who was questioning him that he thought the package contained opium. He testified at trial that he kept the package because he wanted to deliver it to the individual to whom it was addressed. Thus, from Yang's own behavior and statements, a jury could reasonably have inferred that Yang committed the offense on his own volition and without any inducement from a government agent.

Because there is no evidence that the government induced Yang in any way to commit the offense with which he is charged, we need not consider whether there is sufficient evidence on the other element of the entrapment defense, lack of predisposition to commit the crime. Accordingly, we hold that the district court did not abuse its discretion when it denied Yang's request for a jury instruction on entrapment.

II

THE DUE PROCESS CLAIM

Yang challenges the following comments made by the trial judge in the presence of the jury as violative of his due process rights to a fair trial:

Let's get this clear right now. I don't care whether the postal regulations were violated or not, Mr. Mensel. He got this package and it had opium in it and that's clear and that's a violation of the law if the government proves it. And I don't care whether or not he asked for an identification or not. I consider it totally irrelevant to this case.

R.T. 150-51.

It doesn't make any difference. He could have given it to an ape and had it delivered. That's not part of the case.

R.T. at 129.

Improper comments by a trial court will constitute reversible error only if the conduct, measured by the facts of the case presented and the results of the trial, was clearly prejudicial to the rights of the defendant. United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983). Yang contends that these comments by the trial judge prejudiced his right to a fair trial because they undermined his defense theory that he had been entrapped by a government agent and because both comments indicated to the jury that the prosecution need not prove beyond a reasonable doubt that Yang acted with specific intent.

We find both of these arguments to be without merit. First, as we explain above, Yang was not entitled to an instruction on his entrapment defense because of insufficient evidence that the government had induced him to commit the crime. For the same reason, it does not violate Yang's due process rights for the trial judge to state that he did not believe there was any evidence to support that defense. Second, a curative instruction will generally be sufficient to offset any prejudicial inference which could be drawn from comments made from the bench. See United States v. Bradshaw, 690 F.2d 704, 712 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1983). While it is true that the court's comments could have been interpreted by the jury as meaning that possession alone was sufficient to establish Yang's guilt, any possible misimpression was corrected by the court when it finally instructed the jury. The instructions given by the judge on the question of intent made clear that the government had to prove beyond a reasonable doubt that "the defendant knowingly and willfully possessed opium; and ... that he possessed the substance with the intent to distribute." R.T. at 375.

Accordingly, we hold that the two comments made by the judge in the presence of the jury did not violate Yang's right to a fair trial under the Fifth Amendment.

The judgment below is AFFIRMED.

 *

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 Circuit Rule 36-3