Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

MEMORANDUM^** 

Mr. Elias appeals his indictment and conviction, by a jury, for intent to distribute, and conspiracy to distribute cocaine. We affirm.

BACKGROUND

Elias' indictment and conviction were based on his sale of cocaine to an undercover agent. The meeting at which that transaction occurred was arranged by an informant, one Mr. Gilley. Gilley had been earlier convicted of drug and firearms charges. Elias also argues that the failure of the government to provide him with all tape recordings of his conversations with Gilley deprived him of due process, requiring reversal of his conviction. We disagree with both of Mr. Elias' arguments.

Elias' argument tends to fuse the issues of outrageous conduct and entrapment, but they are distinct questions. Outrageous conduct focuses on the government's conduct itself, and not on the predisposition of the defendant. Elias has clearly failed to show the extreme level of governmental misbehavior that would require a dismissal of the indictment for outrageous conduct. He has not shown that government agents "have been brutal, employing physical or psychological coercion" against him, United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir. 1986), or that they "engineer [ed] and direct [ed] ... the criminal enterprise from beginning to end." United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.), cert. denied, 488 U.S. 866 (1988).

As for entrapment, the predisposition of a defendant to commit the crime defeats the defense. Entrapment is a jury question, and the jury decided the issue against Elias. The issue before us on appeal "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Here, the evidence was more than sufficient to support the jury's finding that Elias was not entrapped. The jury could have found that Elias was predisposed to sell cocaine from the testimony of both Gilley and Elias, that Elias had sold cocaine to Gilley at least three times before. Further, there was no evidence of reluctance on the part of Elias, or repeated badgering on the part of Gilley, to engage in this sale. See United States v. Bonanno, 852 F.2d 434, 438 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989). Indeed, Elias' naming of the "customary" price, and his expressed willingness to conduct further sales in the future indicate the opposite. There is accordingly no basis for overturning the jury's rejection of Elias' entrapment defense.

Elias argues that, had he known of the tape recording indicating his lack of reluctance to sell cocaine, he would not have testified in his own behalf, and, consequently, the tape would not have served to impeach the credibility of his testimony that he was reluctant to engage in this sale. Elias argues that this nondisclosure deprived him of the effective exercise of his privilege against self-incrimination.

This argument is raised for the first time on appeal. When this tape was sought to be introduced, the district court asked if there were any objections to its introduction. Elias' defense counsel objected, but not on the basis raised here. Rather, Elias' counsel objected that only this tape was to be introduced, rather than all of the tape recordings of conversations between Elias and Gilley. The district court overruled that objection, and admitted this tape only for the specific purpose of rebutting Elias' testimony that he was reluctant to sell cocaine.

We entertain objections to the conduct of a trial for the first time on appeal only if they charge plain error, or if the alleged defect affects "substantial rights." Fed R.Crim.P. 52(b); United States v. Solis, 841 F.2d 307, 309 (9th Cir. 1988).¹  In this case, Elias asserts that his ignorance of this tape caused him to decide to testify in his own defense without full awareness of the relevant facts. We accept that argument for purposes of decision, but that leads us only to review Elias' objection, and does not, by itself, mean that we should reverse. United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978).

To reverse a conviction for plain error, we must look at all the evidence and conclude that there is a "high probability that the error materially affected the jury's verdict," United States v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983) cert. denied, 465 U.S. 1007 (1984), or that the error contributed to a "clear miscarriage of justice," or that the error besmirched "the integrity and reputation of the judicial process." United States v. Gibson, 690 F.2d 697, 703 (9th Cir. 1982), cert. denied, 460 U.S. 1046 (1983).

Here, the objection is not to the admissibility of this taped conversation per se, but, rather, to the failure to disclose its existence before trial, resulting in Elias' decision to testify. As Elias states in his Opening Brief, at 14, " [h]ad defense counsel known of the existence of this tape, ... he would not have put Hugo Elias on the stand to testify." Thus, our inquiry must focus, not on whether the jury's verdict was affected by hearing the tape, but on whether its verdict was affected by hearing Elias' testimony, followed by impeaching evidence--in short, whether he would have been convicted even if he had decided to exercise his constitutional right and chosen to not testify.

It is clear that the jury would have convicted Elias absent his testimony. The jury convicted Elias, not from his own testimony but from the testimony of the undercover agent and Gilley. Elias took the stand to present an affirmative defense of entrapment, not to dispute that he committed the crime. Had he attempted to establish entrapment without his own (unexpectedly impeached) testimony, the jury would have had ample evidence to find predisposition and lack of reluctance from the testimony of Gilley and the undercover agent, and they would have had no evidence to the contrary. Thus, there is no basis for holding that plain error was committed here.

AFFIRMED.