United States v. Acosta

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2047

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS M. ACOSTA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

Thomas G. Briody, by Appointment of the Court, for appellant.

Michael P. Iannotti, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, was on brief for the

United States.

October 2, 1995

BOUDIN, Circuit Judge. Jesus Acosta was indicted on two

counts of possession of a firearm by a convicted felon. 18

U.S.C. 922(g). A jury convicted Acosta on one count and

acquitted on the other, and Acosta was then given a mandatory

minimum sentence of 15 years' imprisonment under the Armed

Career Criminal Act, 18 U.S.C. 924(e)(1). He now appeals,

raising as his main issue a claim of entrapment. The

evidence at trial, taken in the light most favorable to the

jury's verdict against Acosta, United States v. Tuesta-Toro,

29 F.3d 771, 773 (1st Cir. 1994), cert. denied, 115 S. Ct.

947 (1995), revealed the following.

Acosta is a 42-year-old man, married, with a prior

record of drug offenses but no prior weapons convictions.

Sometime in mid-1993--probably in early July--Acosta met Neal

San Souci at a pawn shop in Pawtucket, Rhode Island, and the

two men engaged in small talk regarding gold jewelry. Acosta

and San Souci had apparently met once many years before.

Unknown to Acosta, San Souci either was then or soon

thereafter became a government informant.

A few days after the pawn shop meeting, Acosta and his

brother-in-law stopped by San Souci's apartment to inspect

some gold jewelry that San Souci had offered to sell Acosta.

Instead of providing the jewelry, San Souci asked Acosta and

his brother-in-law whether they could furnish San Souci with

cocaine. When they declined, San Souci asked whether the two

-2-
-2-

men could provide a gun. According to San Souci, Acosta

said, "he'd check into it . . . . he didn't know of anybody

or anything at that moment."

By his own testimony at trial, San Souci was a former

drug addict and present alcoholic. Around the first week in

July 1993 he began to work as an informant for Special Agent

Stephen Woods of the Bureau of Alcohol, Tobacco and Firearms

("ATF"). Prior to working for ATF, San Souci had been jailed

for failing to pay child support; for his assistance on this

case and other matters, ATF paid San Souci approximately

$4,000. San Souci conceded that he thought that he would be

paid only if he succeeded in persuading Acosta to sell him

the firearm.

San Souci testified that following the visit to his

apartment he called Acosta on a number of occasions, usually

leaving messages with Acosta's wife or Acosta's answering

machine. Acosta's wife also testified that the telephone

calls were very frequent, sometimes more than once a day, and

that Acosta himself appeared uninterested in the messages and

often made dismissive gestures. The purpose of San Souci's

efforts to reach Acosta was to obtain firearms for San Souci

to purchase.

On July 21, 1993, San Souci spoke to Acosta by

telephone, again asking to purchase a firearm. Acosta told

San Souci that he would "check into it" and advise San Souci.

-3-
-3-

On July 23 Acosta told San Souci that he had a .25-caliber

automatic pistol for sale. Later that day, after some

bargaining, San Souci gave Acosta $125 in exchange for the

weapon, which was fully loaded and had an obliterated serial

number. San Souci asked for more guns, and Acosta said that

he would "get back" to San Souci. The conversation was taped

but the tape was inaudible.

At agent Woods' direction, San Souci did not call Acosta

for a couple of weeks because telephone records were being

secured. On August 6, 1993, San Souci called Acosta to ask

for weapons and in the conversation--which was taped and

played at trial--Acosta said that he was going to get them

but needed more time. A similar conversation occurred on

September 15, 1993, and on the following day, Acosta

telephoned San Souci to tell him that he had a .32-caliber

revolver for sale. The same day San Souci purchased the gun

from Acosta for $130, again after bargaining about price.

During this sale, San Souci asked Acosta if he could get

more guns. Acosta replied, "I'm going to get .38 specials"

and "Maybe I can come up with an Uzi for $200." This

conversation was recorded, and the recording played at trial.

There is no indication that any other transactions were

attempted or accomplished. In January 1994, Acosta was

arrested for the two weapons sales and charged in two counts

under the felon-in-possession statute.

-4-
-4-

At his trial, Acosta testified, admitting the

transactions and his status as a prior felon. He relied

primarily on the entrapment defense. The judge gave an

entrapment charge, whose correctness is not challenged. The

jury acquitted Acosta on the count relating to the July 23

transaction and convicted him for the September 16

transaction.

On this appeal, Acosta's main argument is that a verdict

of acquittal should have been directed on count II on grounds

of entrapment or, alternatively, that a new trial should have

been offered. It appears that the motion for a new trial was

made out of time, see Fed. R. Crim. P. 33; but in any case

the district court's denial of such a motion is reviewed only

for abuse of discretion. We think, therefore, that the

central issue of this appeal is whether the evidence was

sufficient to permit a reasonable jury to reject the

entrapment defense.

The legal tests for entrapment are well established.

What is required is (1) that the government induce the

offense and (2) that the defendant not be predisposed to

commit it. See Jacobson v. United States, 503 U.S. 540

(1992). The bare terms--inducement and predisposition--do

little to disclose the encrusting precedent. For our

purpose, the most useful discussion is the decision of then

Chief Judge (now Justice) Breyer in United States v. Gendron,

-5-
-5-

18 F.3d 955 (1st Cir.), cert. denied, 115 S. Ct. 654 (1994).

That decision, which is post-Jacobson, not only illuminates

the entrapment concept but remains the governing law in this

circuit.

Gendron makes clear that despite some general strictures

against the government's "manufacturing" of crimes,

inducement requires something more than that a government

agent or informant suggested the crime and provided the

occasion for it. Rather, inducement "consists of [providing]

an `opportunity' plus something else--typically, excessive

pressure by the government . . . or the government's taking

advantage" of the defendant in an improper way. 18 F.3d at

961 (emphasis added). There is no better means of getting a

sense of what the courts have regarded as "improper"

inducement than the list of cases and parentheticals set

forth in the Gendron opinion. Id. at 961-62.

Although the entrapment doctrine is primarily concerned

with curbing such improper pressure by the government, a

competing policy has led to the second requirement, namely,

that the defendant also not be predisposed to commit the

crime. The notion is that a defendant predisposed to commit

the crime should not get off merely because the government

gave the defendant too forceful a shove along a path that the

defendant would readily have taken anyway. Gendron suggests

that one might ask whether defendant would have been likely

-6-
-6-

to commit the same crime without the undue pressure actually

exerted. 18 F.3d at 962.

Entrapment is called a defense, but it is settled that

once the defendant has made a threshold showing, the burden

shifts to the government to prove beyond a reasonable doubt

either that there was no undue government pressure or

trickery or that the defendant was predisposed. See United

States v. Rodriguez, 858 F.2d 809, 815 (1st Cir. 1988). In

this case, the facts were largely although not entirely

undisputed. Thus, the problem for the jury was primarily

that of applying a vague general standard--actually two such

standards: inducement and predisposition--to a unique

pattern of facts.

Because the facts were largely undisputed, one might

think that on review this court necessarily decides as an

issue of law whether the facts do or do not make out

entrapment. Yet, even where there are no credibility issues

or tensions in the evidence--and some do exist here--

entrapment is treated as a issue of fact for a jury. That

does not mean complete freedom for the jury, see Jacobson; it

does mean that where a rational jury could decide either way,

its verdict will not be disturbed. United States v. Gifford,

17 F.3d 462, 467 (1st Cir. 1994).

Starting with inducement, the problem (as it is so

often) is one of degree. On the one hand, the government

-7-
-7-

does not disclaim responsibility for San Souci's conduct even

if it occurred before he was hired, and here that conduct

went some distance beyond "simply offer[ing] [defendant] the

opportunity" to commit the crime. Jacobson, 503 U.S. at 550.

True, Acosta did not close the door in the first discussion

(Acosta, according to San Souci, said "he'd check into it").

But it took a campaign of persistent calls by San Souci

before Acosta responded, apparently several weeks later.

On the other hand, there is no evidence that San Souci

threatened Acosta or even rebuffed an explicit request by

Acosta to be let alone. Nor does this case involve improper

appeals to sympathy, cf. Sherman v. United States, 356 U.S.

369 (1958), promises of extravagant reward, or the kind of

relentless and extreme trickery engaged in by postal and

customs agents in Jacobson. See 503 U.S. at 543-47. In other

words, the facts fall somewhere in a middle ground between

what is plainly proper and what is plainly improper.

If the district court had refused to submit the

entrapment issue to a jury for lack of threshold evidence of

inducement, we would have reversed. But we do not think that

the evidence was so overwhelming as to establish improper

conduct by the government as "a matter of law." San Souci's

efforts, although far from pristine, were dubious rather than

flagrant, or at least a rational factfinder could so

-8-
-8-

determine. To assume that we are dealing with a sharp

boundary rather than a spectrum is an illusion.

By tradition issues associated with guilt or innocence

(duress, insanity, entrapment) are submitted to the jury.

United States v. Gaudin, 115 S. Ct. 2310, 2313-14 (1995).

Other issues, perhaps similar in kind but related to

collateral matters, are determined by the court (e.g., the

reasonableness of a search and, in many jurisdictions, the

voluntariness of a confession). In the former category of

merits-related issues, the jury in close cases effectively

decides not only what happened but also whether what happened

deserves the legal label described in the jury instruction.

If the jury gets to make these middle-ground decisions

on inducement, deference is even easier to understand on the

issue of predisposition. In large part, predisposition turns

on making a judgment as to how a defendant of a given

character, background, and behavior would have acted in

somewhat different circumstances. On questions of this kind,

the joint common sense of a jury is hard to best. At least

as a composite body, the jury probably knows quite as much as

the judge, or more, about how human beings behave outside of

court.

Except where a jury acquits in a criminal case, judges

remain as a check on juries in the extreme case--one where

the judge thinks that a rational jury could reach only one

-9-
-9-

result. Acosta invokes this exception, arguing that he had

no known prior record of dealing in guns, did not hurry to

accept San Souci's initial overtures, and showed little

enthusiasm throughout the venture. We agree that in this

case the trial judge could not have withdrawn the

predisposition issue from the jury by refusing to instruct on

entrapment, and nor would we have been surprised if the jury

had chosen to acquit.

But there is another side to the coin. Acosta had a

criminal record in drug dealing, properly made known to the

jury, and drug dealing is often associated with access to

weapons. He did not flatly rebuff the initial overture by

San Souci, and it is uncertain whether Acosta's delay in

supplying a weapon reflected inertia, suspicion, or a genuine

reluctance to commit a criminal act. The second gun was

provided with less prompting than the first, and the prospect

of a third sale, possibly of an Uzi, was suggested at the

end.

Thus, a rational jury could conclude that Acosta was

predisposed to commit the offense. His prior record with

drugs would not be enough by itself; but, with one

qualification, the government was entitled to rely as

evidence of predisposition on Acosta's own behavior after he

was approached by San Souci. This included an initial

willingness at least to consider supplying arms, the later

-10-
-10-

provision of two weapons with the suggestion that more would

be available, and a certain measure of professional finesse

in making the transfers.

It is quite true (and this is the qualification just

mentioned) that under Jacobson predisposition does not count

if it is itself the product of improper government conduct.

That could reasonably have been said in Jacobson. There, the

government, through its own mailings to the defendant,

purporting to come from others, encouraged the defendant to

believe that procuring child pornography was a blow against

censorship and in favor of the First Amendment. If there

were predisposition, said the Court, the government instilled

it. 503 U.S. at 553.

In our case, the facts are more equivocal. San Souci

was less persistent and less deceptive than the agents in

Jacobson. Further, San Souci did nothing to encourage the

defendant to alter his views of right and wrong; he just

offered money in exchange for weapons. On the present

facts, the jury could have concluded that Acosta was

predisposed or that he was not, but it could not easily have

concluded that San Souci created in Acosta a predisposition

toward crime. Certainly it was not obliged to reach this

conclusion.

As authority for a judgment of acquittal, Acosta points

us to United States v. Beal, 961 F.2d 1512 (10th Cir. 1992).

-11-
-11-

There, a government informant, to secure relief from criminal

charges against him, pestered Beal with telephone calls until

drugs were supplied; two sales were made by Beal within a

twenty-four hour period; and presented with an entrapment

defense, the jury acquitted Beal as to the first sale and

convicted on the second. The district judge in Beal then

ordered an acquittal on the count of conviction. By a two-

to-one vote, the Tenth Circuit affirmed, saying: "Because

the two counts were founded upon one continuous course of

conduct, it follows that the original inducement which

`beguiled' Mr. Beal carried over to the second charge." 961

F.2d at 1517.

The government says that unlike Beal the two sales in

this case took place two months apart and were not part of

"the same course of conduct." Why this should matter, either

in Beal or in this case, is unclear. A jury in a criminal

case is not obliged to be consistent in its verdicts; on

virtually the same evidence the jury may acquit on one count

and convict on the other. United States v. Powell, 469 U.S.

57, 65 (1984). The only question for the judges--district

and appellate--is whether the evidence on the count of

conviction compelled an acquittal.

It is not clear to us whether Beal was rightly decided

or whether there are nuances in the evidence there that made

it a stronger case for entrapment than our own. What we do

-12-
-12-

know--for reasons explained above--is that as to the second

count in our case, the jury was entitled either to find that

Acosta was entrapped or to reject the defense. Since the

evidence permitted a conviction on count II, it is irrelevant

whether the conviction is logically consistent with Acosta's

acquittal on count I.

As it happens, the two verdicts in our case are not

inherently inconsistent. Merely as an example, the jury

could rationally have concluded that Acosta was not

predisposed as to either sale; that the degree of badgering

in connection with the first sale did constitute inducement;

that the lack of further badgering distinguished the second

sale; and that therefore entrapment was established as to the

first sale but not as to the second. Whatever reasoning the

jury adopted, the evidence as to count II permitted a

conviction.

Acosta's remaining claims of error on the appeal are

much weaker. First, we reject the suggestion that the

government did not prove the commerce element in the case.

The statute prohibits a prior felon from possessing a firearm

"in or affecting commerce." 18 U.S.C. 922(g). Here the

government offered evidence from an ATF expert that both of

the firearms sold by Acosta were made in specific states

other than Rhode Island. The jury was therefore entitled to

-13-
-13-

conclude that both weapons had traveled in interstate

commerce before Acosta possessed them.

Acosta makes no constitutional claim but argues that the

statute should be read leniently to require that a defendant

possess the weapon, if not actually during its interstate

travel, at least close in time to such travel. But this

court has already held that the terms "affecting commerce"

were used as "jurisdictional words of art" reflecting an

intent to exercise the commerce clause power broadly. United

States v. Gillies, 851 F.2d 492, 493-95 (1st Cir.), cert.

denied, 488 U.S. 857 (1988). Given Congress' inferred

intent, it is hard to doubt Gillies was correct and, in any

case, it is binding.

Second, Acosta objects to the trial court's handling of

a note from the jury. On May 27, 1994, a few hours after the

jury began deliberations, the court advised counsel for both

sides that the jury had submitted a note reading: "If we

play the tape/conversations that were not introduced during

the trial, are heard, are they allowed?" At the request of

both sides, the court summoned the jury back to the courtroom

to inquire further, it not being evident that there were any

taped conversations except those introduced at trial.

Before counsel could reassemble, the jury sent word that

it had reached a verdict. Prior to taking the verdict, the

court asked the jury in open court whether the jury no longer

-14-
-14-

wished to have its written question answered. The foreman

stated that that was correct. Then the verdicts were

received and the jury was discharged, without objection by

either side, either before or immediately after the taking of

the verdicts. Four days later, Acosta's counsel filed a

motion to recall the jury for voir dire regarding the note.

The district judge's denial of the motion to recall is

now challenged on appeal, but the denial was plainly correct.

While the jury's inquiry is puzzling, there is no proof that

the jury considered anything outside the evidence. More

important, if defense counsel wanted a further inquiry, the

time to ask here--as with any curable defect or doubt--

plainly was before the verdict. United States v. Mosquera,

1st Cir., August 28, 1995, slip op. 14 & n.7. Trial judges

must manage juries in the face of all kinds of problems and

perplexities. When trial counsel acquiesce in a proposed

solution, it is rare indeed that an appeals court will engage

in second guessing.

Third, the district court sentenced Acosta to an

enhanced sentence under the Armed Career Criminal Act,

because he had three previous convictions "for a violent

felony or a serious drug offense," specifically three drug

trafficking convictions that met the statutory definition of

"a serious drug offense." 18 U.S.C. 924(e)(1). Acosta

urged that one of the prior convictions was invalid because

-15-
-15-

no inquiry was made in that case as to the factual basis for

his guilty plea. On procedural grounds the state court

refused to set the conviction aside.

Acosta admits that under Custis v. United States, 114 S.

Ct. 1732 (1994), a defendant has no right collaterally to

attack his prior convictions during a sentencing under the

Armed Career Criminal Act. But, he says, Custis does not

prevent the trial court from considering such a collateral

attack as a matter of discretion. We think that the reasons

given by the Supreme Court in Custis apply with equal force,

whether the reexamination of the state conviction is sought

by the defendant or the trial judge. See 114 S. Ct. at 1738-

39.

One further word is in order. Whether or not the

government unduly encouraged Acosta to commit the offense is

a close call, but it is the kind of close call that a jury is

equipped to make. What may be even more troublesome in cases

of this kind is the possibility of undue encouragement to the

informant, as a result of compelling government inducements

(here, money; in Beal, dismissal of criminal charges) to

overstep the bounds in the field, or in the courtroom, or

both.

In his dual role as both instigator and witness, the

informant has a special capacity--as well as strong

incentive--to tilt both the event itself and his testimony

-16-
-16-

about it. If the government is going to use its informants

in a role just short of provocateur, it would be well advised

to consider devising restrictions that will at least lessen

the likelihood for abuse. Otherwise, the lesson of history

is that the courts themselves are likely to take precautions

and their adjustments are usually more rigid and far-

reaching.

Affirmed.

-17-
-17-