Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 325 (9th Cir. 1991)

No. 90-10122.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS,*  District Judge.

MEMORANDUM** 

Robert Rouland appeals his convictions, following a jury trial, on each count of a 23-count indictment charging conspiracy, in violation of 18 U.S.C. § 371; interstate transportation of stolen securities, in violation of 18 U.S.C. § 2314; receipt, transfer and sale of stolen United States Treasury checks, in violation of 18 U.S.C. § 510(b); and aiding and abetting, in violation of 18 U.S.C. § 2. We affirm the conviction but remand for resentencing.

Although Rouland made no claim of entrapment in the district court, he contends that he is entitled to acquittal because the evidence established that he was entrapped as a matter of law. We conclude that there was insufficient evidence of entrapment to justify submitting the matter to the jury, let alone concluding that it was required as a matter of law. There is no dispute that Agent Baken and informant Peacock initially established the ostensibly legitimate watch and jewelry operation as a means to uncover unlawful trafficking in counterfeit watches, stolen jewelry and other merchandise. Rouland has failed to point to any evidence, however, that indicates he was not predisposed or, at a minimum, showed any reluctance to engage in the unlawful securities scheme. See United States v. Bonnano, 852 F.2d 434, 438 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989). Although Rouland maintains that, prior to meeting Peacock, he had not been involved in any criminal activity, Rouland has failed to point to any evidence that he was, for example, overborne by extensive government inducements. See id. Instead, the evidence suggests that Rouland engaged in the scheme for his own monetary gain. Rouland has therefore failed to establish the existence of entrapment as a matter of law.

Rouland also asserts the due process defense of outrageous governmental conduct due to the Government's alleged targeting of him for undercover investigation. He raises this issue for the first time on appeal and, thus, we review for plain error. We have recently rejected a " 'reasoned grounds' requirement for investigation of an individual under the due process clause." United States v. Luttrell, 923 F.2d 764, 764 (9th Cir. 1991) (en banc). There was no basis for dismissing the indictment.

We additionally find no abuse of discretion in the district court's limitations on the extent of Rouland's cross-examination of government informant Gary Peacock, FBI Special Agent Rick Baken, and codefendant Raul Martinez.

A district court has "considerable discretion" during a jury trial "to limit cross-examination in order to prevent delay or avoid cumulative evidence." United States v. Gomez, 846 F.2d 557, 559 (9th Cir. 1988). "The trial court does not abuse its discretion as long as the jury receives sufficient information to appraise the biases and motivations of the witness." United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987). " [T]he defendant's right to attack the witness' general credibility enjoys less protection than his right to develop the witness' bias." Evans v. Lewis, 855 F.2d 631, 634 (9th Cir. 1988).

Our review of the trial transcripts reveals that Rouland was permitted to cross-examine Peacock at trial for over two full days. During this cross-examination, Peacock testified that he began working for various law enforcement agencies as a paid professional informant in 1977, first with the Drug Enforcement Administration and then with the Bureau of Alcohol, Tobacco and Firearms; that he had also worked in this capacity for the Customs Service, Secret Service, the Internal Revenue Service, and various state law enforcement agencies; that he had worked on and testified in over 100 cases in his 12 years as a paid professional informant; and that he had never received any formal law enforcement training. Peacock further testified that he received payment from these law enforcement agencies for his work, was provided with money for expenses, and was often eligible for additional rewards, including $25,000 for the present case, the largest reward he had ever received. According to Peacock's own testimony, he has been making his living full-time for the past 12 years as a paid professional informant or "Special Employee."

We find this testimony more than sufficient to adequately apprise the jury of Peacock's biases and motives for his actions on behalf of the Government. We conclude that the district court's limitations on Rouland's attempted further cross-examination of Peacock was well within its discretion. All of the court's rulings were properly based on grounds that this testimony called for inadmissible hearsay, was cumulative of testimony previously elicited, constituted collateral matters lacking relevance to the present proceeding, or that the testimony's prejudicial impact outweighed any possible probative value. See Fed.R.Evid. 401; 402; 403; 611(a), (b); 801(c); 802. Moreover, much of the impeachment evidence Rouland attempted to introduce involved specific instances of conduct requiring the introduction of inadmissible extrinsic evidence. See Fed.R.Evid. 608(b); United States v. Lew, 875 F.2d 219, 222-23 (9th Cir. 1989); United States v. Knigge, 832 F.2d 1100, 1108-09 (9th Cir. 1987), amended on other grounds, 846 F.2d 591 (1988). In light of the otherwise extensive cross-examination Rouland was allowed, the exclusion of this evidence does not constitute an abuse of discretion.

After a thorough review of the record, we similarly find no abuse of discretion in the district court's refusal to admit the FBI 302 report during Rouland's cross-examination of Agent Baken. Nor do we find error in the court's exclusion of codefendant Martinez' testimony regarding the existence of an explicit agreement to obtain stolen checks or credit cards.

Although we affirm the conviction, we remand for resentencing because the court failed to make the required findings or determinations mandated by Fed. R. Crim. P. 32(c) (3) (D). See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

We recognize that the district court properly responded to Rouland's challenges to the accuracy of the presentence report by holding an evidentiary hearing where the probation officer who prepared the report testified as a witness. See Fed. R. Crim. P. 32(c) (3) (A). At this hearing, the court also addressed each of Rouland's objections to the presentence report and indicated whether or not the particular matter would be taken into account at sentencing. Significantly, the court indicated that it would not be relying on the presentence report's "evaluation section" of Rouland, noting it would, instead, rely on evidence presented at trial to evaluate Rouland's conduct.

While a review of the transcript of this hearing indicates that the district court explicitly stated which controverted matters it would not rely upon at sentencing, we are unable to determine whether the court made any unambiguous findings as to objections to the presentence report it indicated it would rely upon, or whether the court took all of the various objections into account. See Fed. R. Crim. P. 32(c) (3) (D) (i), (ii); Fernandez-Angulo, 897 F.2d at 1516 & n. 2. We are also unable to determine whether the court properly appended a written record of its findings and determinations to the presentence report as mandated by Fed. R. Crim. P. 32(c) (3) (D).

We therefore conclude that a remand for resentencing is required in order for the district court to make explicit its findings or determinations, to sentence based on those findings and to append a copy of its findings or determinations to the presentence report. Fernandez-Angulo, 897 F.2d at 1516-17.

Finally, after a careful review of the entire record, we conclude that Rouland's challenges to the sufficiency of the evidence are without merit. The district court properly denied Rouland's motions for judgment of acquittal under Fed. R. Crim. P. 29.

Conviction is AFFIRMED but REMANDED for Resentencing.

 *

Honorable C. Clyde Atkins, Senior United States District Judge for the Southern District of Florida, sitting by designation

 **

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