Argued and Submitted June 5, 2013.
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Gary P. Burcham (argued), Burcham & Zugman, San Diego, CA, for Defendant-Appellant.
Laura E. Duffy, United States Attorney for the Southern District of California, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Timothy D. Coughlin (argued), Assistant United States Attorney, San Diego, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:10-cr-03617-BEN-1.
Before: SIDNEY R. THOMAS, BARRY G. SILVERMAN, and RAYMOND C. FISHER, Circuit Judges.
SILVERMAN, Circuit Judge:
Defendant-Appellant Jorge Cortes was arrested in an undercover reverse sting operation executed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF agents fabricated a scheme to steal 100 kilograms of cocaine from a stash house and arrested the conspirators before the home invasion occurred. Cortes was ultimately convicted of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), conspiracy to affect commerce by robbery and extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count 2), and possession of a firearm in furtherance of a crime of violence and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count 3).
On appeal, Cortes argues that the district court erred in modifying the entrapment defense instruction to reflect the holding of United States v. Spentz, 653 F.3d 815, 818-20 (9th Cir.2011), cert. denied,
__ U.S. __, 132 S.Ct. 1600, 182 L.Ed.2d 209 (2012), refusing to instruct the jury on sentencing entrapment, denying Cortes the opportunity to impeach the confidential informant's credibility, denying a motion to dismiss the Hobbs Act charge, and sentencing him to an allegedly unreasonable total of 240 months. We hold today that the district court erred in its characterization of the Spentz holding. Accordingly, we reverse the Count 1 conviction and remand for a retrial. We further hold that under certain circumstances a sentencing entrapment instruction must be given to the jury and offer suggested entrapment and sentencing entrapment instructions that we believe will provide greater clarity on these exceedingly subtle points of law. We also affirm the Hobbs Act conviction, rejecting the argument that the Hobbs Act is limited to the stealing of lawful property and excludes contraband. We do not reach the remaining challenges, which are moot in light of the remand.
On August 23, 2010, undercover ATF Special Agent Richard Zayas met up with a confidential informant who introduced him to an individual known as " the juvenile" or alternatively as " Abel." Zayas told the juvenile that he was a " disgruntled courier of six to seven kilograms of cocaine for an organization." And he informed the
juvenile that he would soon be collecting the drugs from a stash house that contained approximately 100 kilograms of cocaine and was guarded by two individuals, one of whom would be armed. Zayas explained at trial that the drug quantity used in the story was selected based on the region of operation to enhance the plausibility of the scheme: " It's more likely a hundred kilograms of cocaine wouldn't be in a stash house in a small town in Iowa as opposed to San Diego." According to Zayas, ATF targeted the juvenile because the confidential informant led them to believe that the juvenile " was involved with individuals involved in this type of crime." The juvenile informed Zayas that he had an associate with a crew who could pull off the robbery and had done jobs like this before.
Zayas met that associate, Cortes, the following day, August 24, 2010. He reiterated the details of the stash house, including the quantity of drugs inside, underscoring that the house would only contain drugs, not money. Cortes announced that the drugs would be split half and half between Zayas and his group. Zayas told Cortes that he was motivated to steal the cocaine, because he believed his boss was not paying him enough and had been sleeping with his wife.
The next day, Zayas met up with Cortes and other individuals who had been assembled for the job. There were ten people present, plus the confidential informant. Cortes described the plan and introduced Zayas to the other individuals, so they would know not to hurt him during the robbery. Cortes instructed Zayas not to speak to the crew members. Zayas nevertheless informed them that the house contained 100 kilograms of cocaine, and Cortes scolded him for speaking to the rest of the crew against his wishes. They drove to and assembled in a garage, the staging area for the robbery. Zayas pretended to receive a call from the stash house, at which point a tactical team created a distraction using flash-bangs and arrested the entire crew, including Cortes.
At trial, Cortes testified that he attended the meeting on August 24, 2010, simply because he wanted to help the juvenile, and that he was not in desperate need of money. He testified that he was also motivated to participate because of Zayas's story about his wife's infidelity. Cortes says he was sympathetic to that tale of woe because the same had happened to him a few months back. He, however, denied that any dire financial straits had driven him to participate in the heist. Additionally, he maintained that he did not have a crew, had no experience with home invasions, and had basically lied for the sake of helping his friend, the juvenile.
Cortes filed a motion to dismiss the Hobbs Act count, arguing that it did not apply to the robbery or extortion of contraband; the motion was denied. He also filed motions in limine to secure entrapment and sentencing entrapment instructions. The court appears to have concluded that sentencing entrapment would simply be subsumed within any entrapment instruction and deferred ruling on whether that instruction should be given. Ultimately, the court gave the model entrapment instruction (Ninth Circuit Criminal Jury Instruction 6.2), which it modified to reflect the then-new holding of United States v. Spentz, 653 F.3d 815, 818-20 (9th Cir.2011). In Spentz, which concerned a similar drug stash house robbery sting, we said that the defendants could not merely point to the typical fruits of their crime to establish governmental inducement: " The drugs and money they would recover from the robbery were not an alternative, noncriminal motivation; they were the prototypical criminal motivation for robbery." Id. at 819.
The instruction in this case ultimately read as follows:
Now Defendant Jorge Cortes contends that he was entrapped by a government agent. The government has the burden of proving beyond a reasonable doubt that the Defendant Jorge Cortes was not entrapped. The government must prove either, one, that the Defendant Jorge Cortes was predisposed to commit the crime before being contacted by a government agency; or two, that Defendant Jorge Cortes was not induced by the government agents to commit the crime.
When a person independent of and before government contact is predisposed to commit the crime, it is not entrapment, even if government agents merely provide an opportunity to commit the crime.
In determining whether the defendant was predisposed to commit the crime before being approached by government agents, you may consider the following: one, whether the defendant demonstrated reluctance to commit the offense; two, the defendant's character and reputation; three, whether the government agents initially suggested the criminal activity; four, whether the defendant engaged in the criminal activity for profit; and five, the nature of the government's inducement or persuasion. However, the amount of drugs or the profit that would be derived from their sale does not constitute an inducement supporting entrapment.
In determining whether Defendant Jorge Cortes was induced by government agents to commit the offense, you may consider any government conduct creating a substantial risk that an otherwise innocent person would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassments, promise of reward or pleas based on need, sympathy, or friendship.
The italicized sentence above (emphasis added by us) is the modification derived from Spentz.
The jury returned a guilty verdict on all three counts. Cortes was sentenced to 180 months for Count 1, a concurrent term of 60 months for Count 2, and a consecutive term of 60 months for Count 3, for a total of 240 months. Judgment was entered on May 19, 2012, and Cortes timely appealed.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. In reviewing jury instructions, " the standard of review varies based on the nature of the alleged error." United States v. Keyser, 704 F.3d 631, 641 (9th Cir.2012). We review the language and formulation of a jury instruction for an abuse of discretion. United States v. Peppers, 697 F.3d 1217, 1220 (9th Cir.2012), cert. denied,
__ U.S. __, 133 S.Ct. 1477, 185 L.Ed.2d 378 (2013). However, " [w]hen jury instructions are ...