UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 95-50667
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID HERNANDEZ,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
____________________________________________________
August 12, 1996
Before DAVIS, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
David Hernandez, also known as David Gonzalo, was convicted for conspiracy to distribute
heroin and distribution of heroin. Hernandez admitted his role in the sale of heroin to an
undercover agent, Gilbert Villareal; he had arranged a meeting between Villareal and Jose Perez-
Santos, the supplier of the heroin for the sale. His sole defense at trial was entrapment. His
attorney requested a jury instruction which emphasized that predisposition to commit the crime
must occur prior to any government involvement. See Jacobson v. United States, 503 U.S. 540,
112 S.Ct. 1535 (1992). The district court denied the proffered instruction and gave the pattern
jury instruction on entrapment. On appeal, Hernandez complains about both the correctness of the
jury instruction given by the district court and the denial of his requested instruction. 1
Hernandez objected to the proposed jury charge on the grounds that it did not comport
with Jacobson. He wanted the jury instruction to more clearly state that the predisposition of the
1
Our conclusion that the district court’s charge to the jury was a proper statement of the
law makes it unnecessary for us to consider the government’s cross appeal of the district court’s
decision to instruct the jury on entrapment.
defendant must be independent of government action. In Jacobson, the Supreme Court reversed a
conviction for ordering child pornography literature because the government failed to prove
predisposition, having directed attention at Jacobson for approximately two and one-half years in a
sting operation. Jacobson, 503 U.S. at 553, 112 S.Ct. at 1543. This court has interpreted
Jacobson to hold “that the government must prove at trial beyond a reasonable doubt that the
defendant was actually predisposed to commit the underlying crime absent the government’s role in
assisting such commission.” United States v. Byrd, 31 F.3d 1329, 1336 (5th Cir. 1994) (quoting
United States v. Aibejeris, 28 F.3d 97 (11th Cir. 1994), cert. denied, 115 S.Ct. 1432 (1995)). “We
believe the crucial holding of Jacobson is that predisposition must be independent of government
action.” Id.
Hernandez complains that the jury instruction does not adequately explain that the intent
must be previous to intervention by a government agent. 2 He argues that the jury instructions left
2
The Fifth Circuit pattern jury instruction given by the district court reads:
The defendant asserts that he was a victim of entrapment.
Where a person has no previous intent or purpose to violate the law, but
is induced or persuaded by law enforcement officers or their agents to commit a
crime, that person is a victim of entrapment, and the law as a matter of policy
forbids that person’s conviction in such a case.
On the other hand, where a person already has the readiness and
willingness to break the law, the mere fact that government agents provide what
appears to be a favorable opportunity is not entrapment. For example, it is not
entrapment for a government agent to pretend to be someone else and to
offer, either directly or through an informer or other decoy, to engage in an unlawful transaction.
If, then, you should find beyond a reasonable doubt from the evidence in the
case that, before anything at all occurred respecting the alleged offense
involved in this case, the defendant was ready and willing to commit a crime
such as charged in the indictment, whenever opportunity was afforded, and that
government officers or their agents did no more than offer the opportunity, then you
should find that the defendant is not a victim of entrapment.
On the other hand, if the evidence in the case should leave you with a
reasonable doubt whether the defendant had the previous intent or purpose to
commit an offense of the character charged, apart from the inducement or
persuasion of some officer or agent of the government, then it is your duty to
find the defendant not guilty.
The burden is on the government to prove beyond a reasonable doubt that
the defendant was not entrapped.
You are instructed that a paid informer is an “agent” of the government for
purposes of this instruction.
Fifth Circuit Pattern Jury Instructions § 1.28 (West 1990). Emphasis highlights the wording
2
the jury with the impression that he was not entrapped if he lacked a predisposition when the
government agent first approached him and developed it later before the commission of the offense.
Accordingly, Hernandez’ proposed jury instructions added the phrase “before contact with law
enforcement officers or their agents” to the paragraphs discussing readiness, willingness and intent
to violate the law.
We review challenged jury instructions for abuse of discretion and will not reverse if the
court’s charge, viewed in its entirety, is a correct statement of the law which clearly instructs jurors
as to the relevant principles of law. United States v. Allibhai, 939 F.2d 244, 251 (5th Cir. 1991),
cert. denied, 502 U.S. 702 (1992). In this case, the instruction given required that the defendant’s
predisposition to commit the crime must exist independently and prior to any government
inducement and repeated this requirement in several places. The jury instruction was a correct
statement of the law and clearly instructed the jury that it must find that the Hernandez was willing
to break the law even before government agents offered him a favorable opportunity to do so.
Hernandez’ requested jury instruction on entrapment was also a correct statement of the law, but
the district court’s refusal to give the requested instruction was not an abuse of discretion. The
matter of predisposition was adequately covered by the charge given to the jury. See United States
v. Brown, 43 F.3d 618, 627 (11th Cir.) (upholding a virtually identical charge) cert. denied, 116
S.Ct. 309 (1995).
Hernandez also alleges that statements of the prosecution during closing argument impaired
his defense. His attorney attempted to argue that predisposition must be measured from the time
before Villareal first approached the defendant. The prosecutor objected that this was a
misstatement of the law. The court ordered the defense counsel to continue. Later the prosecutor
argued that predisposition did not have to exist prior to the time the government first approached
Hernandez. Appellant argues that since the jury instructions were not clear that predisposition
Hernandez finds objectionable.
3
must exist prior to any government contact, the jury was probably left with the impression from the
prosector’s argument that it could be measured anytime up to the commission of the offense.
This court, in United States v. Rubio, 834 F.2d 442 (5th Cir. 1988) stated that “when
looking beyond the charge itself to determine the adequacy of that charge, the focus must remain
on the words of the judge. We look to the record and the closing arguments to place the words of
the judge in context. The burden of giving proper instructions is on the Judge.” Id. at 447. As
explained above, the jury instructions given by the judge were proper. The erroneous statement by
the prosecutor does not require reversal.
The judgment of the district court is AFFIRMED.
AFFIRMED.
4