United States v. Cavazos

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

______________________________________

No. 97-40875
______________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO CAVAZOS, a/k/a EL NEGRO,
GUILLERMO GARZA, a/k/a BILLY, JORGE
RAMOS-PESCADO, a/k/a PAYO, and MIGUEL
CISNEROS, Jr.
Defendants-Appellants.
_____________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(L-97-CR-70-6)
_____________________________________________
November 6, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

Defendants-Appellants Sergio Cavazos, Guillermo Garza, Jorge

Ramos-Pescado (“Ramos”), and Miguel Cisneros, Jr. appeal their

convictions for conspiracy to possess with intent to distribute

marijuana in violation of 21 U.S.C. §§ 841(a) and 846. Garza

additionally appeals his conviction for aiding and abetting in the

possession of marijuana in violation of 21 U.S.C. § 841(b). For

the reasons set forth below, we affirm the convictions.

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 I.

FACTS AND PROCEEDINGS

In January 1997, Drug Enforcement Agent Armando Ramirez, Jr.,

acting in an undercover capacity, met with Garza in Laredo, Texas

to negotiate the purchase of a large quantity of marijuana. The

meeting was arranged by a confidential informant, Jose Louis Perez.

Garza, whom Perez introduced to Agent Ramirez as “Billy,” told

Ramirez that he had 300 to 325 pounds of marijuana for sale and

that Ramirez would be pleased with the quality of the drugs. Garza

and Ramirez met again the next day to discuss the purchase of the

original quantity of marijuana as well as an additional 400 pounds

that Garza expected to receive shortly. Garza mentioned only one

associate by name during these discussions, referring to him as

“Jorge.”

Although on the following day Garza informed Agent Ramirez

that he was having difficulty obtaining the additional 400 pounds

of marijuana, the two men arranged for Ramirez to provide Garza

with an Oldsmobile Delta 88 to transport the drugs. Ramirez

delivered the Delta 88 to Garza, making the exchange in the parking

lot of an HEB grocery store. Garza, however, returned the vehicle

to Ramirez, claiming that while driving it an associate had been

pulled over for an expired inspection sticker.

Over the next few days, Garza and Ramirez had several

discussions regarding both the price per pound —— which Garza

raised from the initial agreed price of $200 per pound to $210 per

pound —— and the quantity of marijuana that Garza was to provide.

2
Garza continued to report difficulties in obtaining the additional

marijuana, although at one point he informed Garza that the drugs

were at a ranch about 25 miles outside Laredo. Later, Ramirez was

informed by Garza that his boss’ brother wanted Ramirez to view the

marijuana at a house outside the city limits. Ramirez refused out

of safety concerns.

Throughout these conversations, Ramirez stressed that he

needed to know the exact amount of the marijuana Garza would be

able to provide so that he would know how much money to bring.

After a few days had passed, Ramirez told Garza that the people who

had invested their money were very anxious because of the delay and

that he (Ramirez) would have to travel to Dallas to meet with them.

Garza attempted to dissuade Ramirez from leaving town, stressing

that he would be ready to make the exchange very soon.

Finally, Garza reported that he had about 600 pounds of

marijuana and that he wanted to deliver it to Garza in two loads ——

230 pounds first and the rest later. Garza repeated that Ramirez

would be pleased with the quality of the marijuana. Ramirez told

Garza that it was too dark to complete the transaction that night,

but that they could set it up the next day. Garza asked Ramirez to

call him around noon to work out the arrangements.

Ramirez phoned Garza at the appointed time and suggested that

they meet at the HEB parking lot and then go to the apartment of a

cousin of Ramirez in Laredo to unload the drugs. Garza stated that

he did not want to meet at the HEB because “he had problems there

in the past,” but agreed to meet at a Maverick Market instead, some

3
time between 12:00 p.m. and 12:30 p.m. Garza stated that he wanted

to meet around noon because traffic would be heavy and could cause

problems for any narcotics officers in the area.

At approximately 12:30 p.m., the officers began to observe

Cavazos’s residence at 2117 Camp Street, an address to which the

officers had previously followed Garza. A Plymouth that Garza had

driven to the initial meeting with Ramirez was parked on the lawn,

and a red pickup truck was parked across the street. Shortly after

the officers began to monitor the residence, a two-door Nissan and

a white pickup truck arrived. After approximately half an hour,

the Plymouth and the two pickups pulled away from 2117 Camp,

stopping for 10 or 15 seconds at one point so that the occupants

could speak to each other. The red pickup then split off from the

other two vehicles, but all three eventually rendezvoused in the

vicinity Maverick Market and parked.

Officers next observed Cavazos get out of the red pickup from

the passenger’s side, then walk over and meet for a few minutes

with Garza, who was driving the Plymouth. Officers later

identified Cisneros as the driver and owner of the red pickup and

Ramos as an additional passenger in that vehicle. After speaking

with Garza, Cavazos returned to the red pickup, which Cisneros then

drove a short distance to help jump start an unidentified vehicle.

At this time, the Nissan, which had left 2117 Camp a few minutes

after the other three vehicles, arrived and was parked next to

Garza’s Plymouth. Juan Palacios, a co-defendant who pleaded guilty

prior to trial, was driving the Nissan. Palacios got out of the

4
vehicle and spoke with Garza briefly.

At approximately 1:30 p.m., Ramirez arrived at Maverick Market

in his own vehicle. As he pulled into the parking lot, Garza,

Cavazos, and Palacios were standing together talking in front of

the Plymouth. When he spotted Ramirez, Cavazos ran back to the red

pickup. That vehicle, followed by the white pickup, then drove to

a road directly behind Maverick Market. The two pickups stopped

briefly while their occupants conversed, then returned to the front

of the market.

Meanwhile, Ramirez was approached by Garza and was told that

everything was ready. Garza said that he would follow Ramirez to

make the exchange. Garza also informed Ramirez that some of the

marijuana was in the Plymouth, which Palacios would be driving, but

that most of it was in the trunk of the Nissan. Ramirez drove out

of the Maverick Market parking lot in his own vehicle, followed by

the Plymouth driven by Palacios and by the red truck as well.

Garza remained behind with the Nissan.

Ramirez and Palacios proceeded to the site of the putative

exchange, but the red pickup broke off quickly, turning into a

nearby Taco Bell parking lot where a police surveillance unit was

parked. The white pickup first joined the red pickup and then

drove back to the Maverick Market to link up with Garza. Fearing

that they would be discovered, the surveillance officers decided to

arrest all those remaining in the vicinity of the Maverick Market.

Because the officers were forced to make this move before they had

anticipated, they were unable to arrest the occupants of the white

5
pickup.

The officers recovered a hand-held radio and 207.2 pounds of

marijuana from the back seat and the trunk of the Nissan and an

additional 38 pounds of marijuana from the Plymouth. The officers

found no weapons, radios, cellular phones, or marijuana in the red

pickup. When interviewed after his arrest, Ramos began to tremble

visibly and told the arresting officer in Spanish, “I know I did

wrong.”

Cavazos, Garza, Ramos, and Cisneros were convicted of

conspiracy to possess with intent to distribute marijuana. Garza

was additionally convicted of aiding and abetting in the possession

of marijuana.

II.

ANALYSIS

1. Entrapment

Although the district court instructed the jury on the defense

of entrapment, Garza asserts that the district court erred in

failing to rule that he was entrapped as a matter of law because

the government allegedly failed to rebut his entrapment evidence.

The critical determination in an entrapment defense is whether

criminal intent originated with the defendant or with the

government agents.2 Thus the threshold question is whether the

2
United States v. Bradfield, 113 F.3d 515, 521 (5th Cir.
1997); United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th
Cir. 1992) (citing United States v. Nations, 764 F.2d 1073, 1079
(5th Cir. 1985)).

6
defendant was predisposed to commit the offense.3 To assert an

entrapment defense successfully, the defendant must first make out

a prima facie case that the government's conduct created a

substantial risk that an offense would be committed by a person

other than one ready to commit it.4 This requires the defendant to

show both (1) his lack of predisposition to commit the offense and

(2) some governmental involvement and inducement more substantial

than simply providing an opportunity or facilities to commit the

offense.5

Predisposition focuses on whether the defendant was an "unwary

innocent" or, instead, an "unwary criminal" who readily availed

himself of the opportunity to perpetrate the offense.6

Specifically, the question is whether the defendant intended, was

predisposed, or was willing to commit the offense before first

being approached by government agents.7 Government inducement

consists of the creative activity of law enforcement officials in

spurring an individual to crime.8 Evidence that government agents

3
United States v. Ivey, 949 F.2d 759, 768 (5th Cir. 1991).
4
United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989);
United States v. Hudson, 982 F.2d 160, 162 (5th Cir. 1993).
5
Pruneda-Gonzalez, 953 F.2d at 197; United States v. Andrew,
666 F.2d 915, 922 (5th Cir. 1982); United States v. Leon, 679 F.2d
534, 538 (5th Cir. 1982); United States v. Fischel, 686 F.2d 1082,
1085 (5th Cir. 1982).
6
Mathews, 485 U.S. 58, 63 (1988) (citations omitted).
7
Johnson, 872 F.2d at 620-21 (citing United States v. Yater,
756 F.2d 1058 (5th Cir. 1985).
8
Fischel, 686 F.2d at 1085.

7
merely afforded the defendant an opportunity or the facilities for

the commission of the crime is insufficient to warrant the

entrapment instruction.9 To constitute inducement, the

government’s conduct must go beyond mere solicitation, it “must

include an element of persuasion or mild coercion, such as

misrepresentations, threats, coercive tactics, harassment, promises

of reward or pleas based on need, sympathy or friendship.”10

If the defendant makes a prima facie showing of both elements

—— lack of predisposition and government activity rising to the

level of true inducement —— he is entitled to a jury instruction on

the issue of entrapment.11 At this juncture the burden shifts to

the government to prove beyond a reasonable doubt that the

defendant was disposed to commit the offense prior to first being

approached by government agents.12 To declare entrapment as a

matter of law, however, the court must determine that no reasonable

jury could find that the defendant was predisposed to commit the

offense.13

Garza argues that, because the government’s confidential

informant Perez did not testify at trial, Garza’s testimony

9
Mathews, 485 U.S. at 66.
10
United States v. Jackson, 700 F.2d 181, 191 (5th Cir. 1983).
11
Mathews, 485 U.S. at 66; Nations, 764 F.2d at 1080 (holding
defendant must show evidence that provides, at the least, a basis
for a reasonable doubt on the ultimate issue of whether criminal
intent originated with the government to obtain entrapment
instruction).
12
Bradfield, 113 F.3d at 521.
13
Nations, 764 F.2d at 1077.

8
regarding his lack of predisposition and government inducement is

uncontradicted; that as such the district court erred in failing to

rule he was entrapped as a matter of law. We disagree.

As an initial matter, Garza presented insufficient evidence to

support a finding that the government agents induced him to commit

the charged offense. Garza testified that he was involved in the

marijuana transaction, but explained that Perez initiated the idea

of getting involved in the scheme. Garza testified that Perez

first suggested that they get involved in criminal activity in

September 1996, but that he (Garza) resisted until around mid-

January 1997, after he had been evicted from his apartment and his

daughter, who had been living with him, had gone back to live with

her mother. When asked directly why he agreed to get involved in

the marijuana deal, he stated: “Well, like I said, I was down and

out and if you’ve ever been evicted and —— I mean, had the

opportunity to be out there, no place to stay, it’s not a real good

feeling.” He added that Perez’s offer was like throwing a

“drowning man a rope” and that the deal would help him out of his

“financial rut.”

Garza offered no testimony that Perez threatened, coerced, or

harassed him into participating in the illegal drug transaction.14

14
Cf. Jacobson v. United States, 503 U.S. 540, (1992) (holding
defendant was entrapped into ordering child pornography when
defendant was target of 26 months of repeated mailings designed to
convince him that “he had or should have the right to engaged in
the very behavior proscribed by law.”); United States v. Sandoval,
20 F.3d 134, 137 (5th Cir. 1994) (holding defendant was entrapped
into participating in bribery scheme when IRS agent rejected
defendant’s original request for reward in return for information,
made persistent requests for personal benefit, and repeatedly

9
Garza testified simply that over a period of a few months Perez

sporadically asked him whether he wanted to make money by

trafficking in narcotics and that, after initially resisting, Garza

agreed. “Inducement,” however, represents “more than mere

suggestion, solicitation, or initiation of contact . . . .”15 That

Garza was initially hesitant to engage in the illegal conduct does

not alter the analysis.16 As Garza did not present sufficient

evidence to warrant an entrapment instruction —— which he

nevertheless received and which the jury rejected —— he obviously

failed to establish that he was entrapped as a matter of law.

Even assuming arguendo that Garza presented sufficient

evidence to raise an issue of inducement, the entirety of the

evidence is not “so overwhelming that it [is] patently clear or

obvious that [he was] entrapped as a matter of law."17 Garza relies

entirely on his own testimony to prove his lack of disposition.

Generally, “a defendant’s testimony cannot by itself establish

entrapment as a matter of law as, absent unusual circumstances, the

emphasized defendant’s tax and penalty exposure “to pla[y] on
[defendant’s] weakness”).
15
United States v. Hill, 626 F.2d 1301, 1304 (5th Cir. 1980);
see also United States v. Johnson, 32 F.3d 304, 308 (7th Cir. 1994)
(“Mere solicitation by a government agent is insufficient to
establish entrapment.”) (citing Gonzalez v. United States, 474 U.S.
831 (1985)) (additional citations omitted); United States v.
McKinley, 70 F.3d 1307, 1312 (D.C. Cir. 1995) (“[M]ere
solicitation by the Government, to which the defendant acquiesced
with reasonable readiness, does not evince inducement.”) (quotation
and citation omitted).
16
Fischel, 686 F.2d at 1086.
17
United States v. Grubbs, 776 F.2d 1281, 1285 (5th Cir. 1985).

10
jury is entitled to disbelieve that testimony.”18 Thus, we will not

set aside a jury’s conviction on entrapment grounds if there is

sufficient evidence to support the jury’s finding that Garza was

predisposed to commit this crime.19

“Many factors may indicate a defendant’s predisposition,

including a showing of defendant’s desire for profit, his eagerness

to participate in the transaction, his ready response to the

government’s inducement offer, or his demonstrated knowledge or

experience in the criminal activity under investigation.”20 Here,

Garza testified that he got involved in the transaction because he

had “nothing to loose” and he wanted to get out of his “financial

rut.” There was, moreover, an abundance of testimony on which the

jury could conclude that Garza was experienced in narcotics

trafficking. Garza claimed that he would, and then did, procure a

considerable quantity of marijuana.21 He refused to meet Agent

Ramirez at the HEB because he had had problems there in the past.

He stated that he wanted to meet Agent Ramirez around noon because

traffic at that time would cause difficulties for law enforcement.

Finally, Garza demonstrated his enthusiasm for the deal

through his multiple conversations concerning the details of the

18
United States v. Mora, 994 F.2d 1129, 1137 (5th Cir. 1993)
(citing Masciale v. United States, 356 U.S. 386, 389 (1958)).
19
Id.
20
United States v. Chavez, 119 F.3d 342, 346 (5th Cir.), cert.
denied, __ U.S. __, 118 S. Ct. 615 (1997) (quotation and citation
omitted).
21
Mora, 994 F.2d at 1137.

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transaction and his entreaties to Ramirez not to leave town.22 In

short, even assuming Garza “did not seek out the [illegal

transaction],