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    United States v. Alzate, 1st Cir. (1995)

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    The document is a court opinion from the United States Court of Appeals for the First Circuit that affirms the conviction of Luis Alzate for cocaine possession with intent to distribute. The court finds that the trial court did not commit plain error in its jury instructions regarding entrapment, as it was clear the informant was acting as a government agent and the instructions adequately conveyed that the question was whether Alzate had criminal intent before government persuasion occurred.

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    Public Domain
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    United States v. Alzate, 1st Cir. (1995)

    Uploaded by

    Scribd Government Docs
    73 views13 pages
    The document is a court opinion from the United States Court of Appeals for the First Circuit that affirms the conviction of Luis Alzate for cocaine possession with intent to distribute. The court finds that the trial court did not commit plain error in its jury instructions regarding entrapment, as it was clear the informant was acting as a government agent and the instructions adequately conveyed that the question was whether Alzate had criminal intent before government persuasion occurred.

    Original Description:

    Filed: 1995-11-27 Precedential Status: Precedential Docket: 94-1712

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    The document is a court opinion from the United States Court of Appeals for the First Circuit that affirms the conviction of Luis Alzate for cocaine possession with intent to distribute. The court finds that the trial court did not commit plain error in its jury instructions regarding entrapment, as it was clear the informant was acting as a government agent and the instructions adequately conveyed that the question was whether Alzate had criminal intent before government persuasion occurred.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    73 views13 pages

    United States v. Alzate, 1st Cir. (1995)

    Uploaded by

    Scribd Government Docs
    The document is a court opinion from the United States Court of Appeals for the First Circuit that affirms the conviction of Luis Alzate for cocaine possession with intent to distribute. The court finds that the trial court did not commit plain error in its jury instructions regarding entrapment, as it was clear the informant was acting as a government agent and the instructions adequately conveyed that the question was whether Alzate had criminal intent before government persuasion occurred.

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    USCA1 Opinion

    UNITED STATES COURT OF APPEALS


    FOR THE FIRST CIRCUIT
    ____________________

    No. 94-1712

    UNITED STATES,

    Appellee,

    v.

    LUIS ALZATE,

    Defendant, Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Ernest C. Torres, U.S. District Judge]


    ___________________

    ____________________

    Before

    Cyr, Boudin and Stahl, Circuit Judges.


    ______________

    ____________________

    Normand S. Zalkind with whom Zalkind, Rodriguez, Lunt & Duncan


    __________________
    __________________________________
    on brief for appellant.
    Margaret F. Curran, Assistant United
    ___________________
    Sheldon Whitehouse,
    ___________________

    United

    States

    States Attorney, with

    Attorney,

    and

    Edwin J. Ga
    _____________

    Assistant United States Attorney, are on brief for appellee.

    ____________________

    November 27, 1995


    ____________________

    Per Curiam.
    ___________

    Defendant

    Luis

    Alzate

    appeals

    his

    conviction for possessing cocaine with intent

    21

    U.S.C.

    errors in

    defense

    841(a)(1) and

    the jury

    time the

    (b)(1)(B), contending

    instructions relating to

    warrant reversal.

    to distribute,

    that two

    his entrapment

    As Alzate failed to object at the

    instructions were given,

    we review only

    for plain

    error.

    1.

    One element of

    entrapment is

    that the

    have instigated the defendant's conduct.

    v.

    government

    E.g., United States


    ____ _____________

    Gifford, 17 F.3d 462, 468 (1st Cir. 1994).


    _______

    Alzate claims

    that the district court erred by failing to instruct the jury

    that

    the

    attributable

    actions

    to

    of

    the

    the

    FBI's

    government.

    paid

    informant

    The

    were

    government's

    responsibility for the informant was not in dispute at trial,

    and Alzate understandably sought no instruction.

    Nevertheless,

    on appeal Alzate

    dictum of this court that where the

    the

    actions

    of

    its

    informer

    v. Annese, 631 F.2d 1041,


    ______

    the trial

    judge had

    that they must

    was

    an agent

    existed as to

    that it

    for

    attributable

    instructed.

    confused matters by

    that issue.

    is reversible

    even

    -2-2-

    In

    Annese,
    ______

    individual

    though no

    Annese certainly
    ______

    error to

    the

    instructing jurors

    the "inducing"

    the government,

    to

    United States
    _____________

    1048 (1st Cir. 1980).

    determine whether

    an earlier

    government concedes that

    are

    government, the jury should be so

    relies upon

    dispute

    does not

    forego the instruction

    hold

    now

    claimed

    necessary where,

    as

    here, no

    such instruction

    is

    sought and there is no indication of prejudice.

    Ordinarily, a

    made at trial

    claimed error

    will not

    be considered without

    likely effect on the outcome.

    Ct. 1770, 1777-778

    to which no

    (1993).

    objection was

    a showing

    of

    United States v. Olano, 113 S.


    _____________
    _____

    Here, we have

    every reason

    to

    think that the jury clearly understood that the informant was

    acting

    as

    government

    established that

    agent.

    the informant

    Undisputed

    was paid by

    testimony

    the government,

    received instruction from FBI agents, and regularly

    to

    the FBI.

    conceded

    Indeed, the prosecution's

    that the

    arranged the drug

    these

    facts we

    inducer "was

    a paid

    transaction "on

    find no

    reported

    own closing remarks

    FBI informant"

    behalf of the

    prejudice, even

    who

    FBI."

    On

    assuming that

    the

    dictum in Annese should be extended beyond the peculiar facts


    ______

    of that case.

    2.

    The

    instruction

    other

    requires

    element

    the

    of

    the

    government

    standard

    to

    show

    entrapment

    that

    the

    defendant, if induced to commit the crime, was predisposed to

    do

    it before

    the government

    approached

    him.

    Gifford, 17
    _______

    F.3d.

    468.

    The instructions here so advised the jury in the

    conventional manner.

    Among

    other references, the judge told

    the jury that the entrapment defense applies when a defendant

    "who has no previous intent to commit a crime is persuaded to

    do so by the Government through

    -3-3-

    its agents."

    The court also

    said that, for an entrapment claim

    must

    to prevail, the defendant

    be "not predisposed to engage in such conduct" and that

    the entrapment

    defense would not apply

    "[i]f the Government

    proves the Defendant was ready and willing to break the law .

    . . ."

    The subtlety

    Jacobson
    ________

    now relied upon

    v. United States, 503


    _____________

    by Alzate

    U.S. 540, 549

    is that

    under

    & n.2 (1992),

    the government cannot prove predisposition if the defendant's

    willingness to

    commit the

    the government in

    before he committed

    first

    of

    defendant

    the

    crime was itself

    the course of

    the crime

    instructions

    manufactured by

    dealing with the

    charged.

    quoted

    We

    defendant

    think that

    above--referring

    the

    to

    with "no previous intent to commit a crime" who is

    "persuaded . .

    . by the Government"--does

    convey the notion

    that the question posed was whether Alzate did

    intent before
    ______

    more

    the government

    precisely tailored

    suitable

    have criminal

    persuasion occurred.

    instruction

    might well

    While a

    have

    been

    if specially sought, such refinements tailoring the

    language to the situation

    of the request.

    We

    require that the judge

    do not think that there was

    be advised

    plain error

    in the charge.

    We

    also have

    little reason to

    think that

    phrasing of the instruction affected the outcome.

    the precise

    Alzate did

    testify that he was repeatedly badgered by the informant, but

    his

    claims were not entirely borne out by what was recorded.

    -4-4-

    Moreover,

    Alzate,

    who had

    arrested, also was found

    a beeper

    with

    him when

    to have in his house

    he was

    an electronic

    scale, a kit for testing cocaine including a chemical used to

    perform

    the test, and a

    Alzate

    offered the

    other

    paraphernalia,

    small amount of

    jury

    it

    cocaine.

    explanations for

    was

    easily

    Although

    the cocaine

    within

    the

    and

    jury's

    discretion to disbelieve him.

    Affirmed.
    ________

    -5-5-

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