United States v. Rodriguez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 93-2653
__________________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JOE GAMBOA RODRIGUEZ,
Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(CR-H-92-191)
_______________________________________________
(January 11, 1995)

Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, District
Judge.

CARL E. STEWART, Circuit Judge:

Joe Gamboa Rodriguez appeals his conviction for being a felon

in possession of a firearm. He contends that the district court

erred in several rulings and that the prosecutor impermissibly

commented on his post-arrest silence. He also contends that the

evidence shows that he was entrapped. We affirm.

FACTS

On or about 12/2/91, Special Agent Ramon Bazan of the Bureau

of Alcohol, Tobacco, and Firearms (ATF) acted as an undercover

agent in the purchase of a firearm from Rodriguez. Another ATF

*
District Judge of the Eastern District of Louisiana,
sitting by designation.
agent had provided Agent Bazan with a recording device and

instructed him to meet Rodriguez and Albert Martinez Medina (also

known as "Beto"), an informant, in the parking lot of a Whataburger

restaurant. Agent Bazan met Rodriguez and Medina and bought the

firearm from Rodriguez. In a one-count indictment filed 8/19/92,

a grand jury charged Joe Gamboa Rodriguez with possession of a

firearm by a convicted felon.

At trial, the jury heard Agent Bazan's testimony that

Rodriguez showed Agent Bazan a pistol that was in the trunk of the

car and that all three men got into the car at Agent Bazan's

request. Rodriguez negotiated the price of $100, and Medina

remained silent as he had been instructed by the ATF. The jury

also heard that Rodriguez said that he could get larger caliber

firearms or a machine gun for Agent Bazan. Rodriguez did not

appear to Agent Bazan to be afraid. The Government played an audio

tape recording of the transaction in open court and provided the

jury with a transcript of the taped conversation.

The jury also heard Rodriguez' testimony that, in December

1991, Medina called and asked if he knew where to sell a gun.

Rodriguez answered that he did not. Medina called a second time

and asked Rodriguez to meet him in the apartment parking lot.

Medina offered Rodriguez $20 to sell a gun to Medina's friend, who

would buy it if Rodriguez would help. According to Rodriguez, when

he refused to help, Medina got angry and threatened to get to him

or his family. Rodriguez stated that he took the threat seriously

because Medina was a member of the Texas Prison Syndicate and had

stabbed someone in prison. After Rodriguez agreed to sell the gun,
Rodriguez, Medina, and Lupe, Medina's wife, drove to a Whataburger.

During the drive, Medina instructed Rodriguez to say that the

pistol was his and that the price was $100.

According to Rodriguez, at the Whataburger, Medina introduced

Rodriguez to Agent Bazan, took the gun out of the trunk, put it in

the front seat between Rodriguez and Agent Bazan, then went inside

with his wife to get something to eat. Rodriguez stated that he

followed Medina's instructions by selling the gun to Agent Bazan

and talking to Agent Bazan about getting more guns in the future.

The Government called Medina as a rebuttal witness. Medina

testified that he worked as an informant for the ATF in ten cases

and received payment approximating $10,000 for his services.

Moreover, Medina received a favorable plea agreement in a firearms

conviction, which included a reduced sentence, a possible further

reduction in sentence upon motion by the Government, and protective

custody because the Texas Syndicate allegedly had contracted to

kill him. Medina testified that the ATF asked him to put the word

out that he would be willing to sell "hot" jewelry, gold, VCR's,

camcorders, and firearms. About three or four months before the

instant sale, Medina spoke to Rodriguez about purchasing guns.

Medina denied threatening Rodriguez and stated that Rodriguez

eventually contacted him to sell a gun. According to Medina, when

he picked Rodriguez up at his apartment, Rodriguez had the gun

wrapped in a towel, and Medina opened the trunk to permit Rodriguez

to place the gun in the trunk. Contrary to Agent Bazan's testimony

yet consistent with Rodriguez' testimony, Medina stated that he was

3
not present during the negotiations between Agent Bazan and

Rodriguez.

The jury returned a verdict of guilty, and the district court

imposed a term of imprisonment of 188 months, a five-year term of

supervised release, and a special assessment of $50.

DISCUSSION

ISSUE 1: WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN ALLOWING
CROSS-EXAMINATION OF THE DEFENDANT REGARDING HIS PRE-TRIAL FAILURE TO
MENTION HIS ENTRAPMENT DEFENSE?

Rodriguez contends that his due process rights were violated

when the Government questioned him at trial concerning his post-

arrest silence.1

Specifically, Rodriguez complains of the following sequence of

questions. On cross-examination, the Government asked: "Mr.

Rodriguez, . . . when did you tell the police about the threat you

received?" Rodriguez answered that he did not tell the police, and

counsel for Rodriguez objected on grounds that the question

constituted "a comment on Mr. Rodriguez's post-arrest silence."

The district court overruled the objection. The Government

continued the cross-examination, and the following colloquy

occurred:

[Prosecutor]: And, of course, the reason you didn't tell
the police about that threat was because you were afraid
of Beto Medina; is that your story?

1
It is undisputed that Rodriguez's pre-arrest, pre-
Miranda silence does not implicate due process. See Jenkins v.
Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2130, 65 L. Ed. 2d
86 (1980) (no constitutional violation if the prosecution uses
pre-arrest, pre-Miranda warning silence, to impeach the
credibility of the defendant because "no Government action [has]
induced [the defendant] to remain silent.").

4
 [Defense counsel]: I'd like -- just for the record, I'd
like to renew my previous objection.

THE COURT: Overruled.

[Rodriguez]: I was afraid of the Texas Syndicate and
him, yes, sir.

[Prosecutor]: And you thought the best time to come in
here and tell the story was today?

[Defense counsel]: Again, just for the record, I have to
object again.

THE COURT: Overruled.

[Rodriguez]: Yes, sir.

The government argues that, given the time period that elapsed

between this offense and Rodriguez' arrest, it sought to clarify

the timing of his claim, as opposed to commenting on the substance

of the claim. The government contends that its inquiry "compared

the reasonableness of the two year delay in accusing the informant

of threatening him with Rodriguez' credibility." According to the

government, the prosecutor's inquiry related to Rodriguez' pre-

arrest silence, not to his post-arrest silence, and Rodriguez has

failed to meet his burden of proving that the sole purpose of the

inquiry was to comment upon Rodriguez' post-arrest silence.

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d

91 (1976), the Supreme Court held that the Due Process Clause of

the Fourteenth Amendment prohibits impeachment of a defendant's

exculpatory story, told for the first time at trial, by using the

defendant's post-arrest silence. A prosecutor's or witness's

remarks constitute comment on a defendant's silence if the manifest

intent was to comment on the defendant's silence, or if the

5
character of the remark was such that the jury would naturally and

necessarily so construe the remark. United States v. Carter, 953

F.2d 1449, 1464 (5th Cir. 1992), cert. denied sub nom, Hammock v.

United States, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992) (citing

United States v. Shaw, 701 F.2d 367, 381 (5th Cir. 1983), cert.

denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984)).

Although virtually any description of a defendant's silence

following arrest and a Miranda2 warning will constitute a Doyle

violation, a prosecutor's comments must be evaluated in context.

United States v. Laury, 985 F.2d 1293, 1303 (5th Cir. 1993)

(internal quotation and citations omitted). In Chapman v. United

States, 547 F.2d 1240 (5th Cir. 1977), cert. denied, 431 U.S. 908,

97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), the Court classified Doyle

violations into three categories:

When the prosecution uses defendant's post-arrest
silence to impeach an exculpatory story offered by
defendant at trial and the prosecution directly
links the implausibility of the exculpatory story
to the defendant's ostensibly inconsistent act of
remaining silent, reversible error results even if
the story is transparently frivolous.

When the prosecutor does not directly tie the
fact of defendant's silence to his exculpatory
story, i.e., when the prosecutor elicits that fact
on direct examination and refrains from commenting
on it or adverting to it again, and the jury is
never told that such silence can be used for
impeachment purposes, reversible error results if
the exculpatory story is not totally implausible or
the indicia of guilt not overwhelming.

2
Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966).

6
 When there is but a single reference at trial
to the fact of defendant's silence, the reference
is neither repeated nor linked with defendant's
exculpatory story, and the exculpatory story is
transparently frivolous and evidence of guilt is
otherwise overwhelming, the reference to
defendant's silence constitutes harmless error.

547 F.2d at 1249-50 (citations and footnote omitted). Many cases

cannot be resolved solely by reference to the Chapman categories;

in such instances, we apply a case-by-case approach using the

Chapman categories as guidelines for assessing the prejudice to the

defendant in the particular context, including the strength of the

evidence. Carter, 953 F.2d at 1465.

As in Laury, the instant prosecutor's questions were

sufficiently broad as to be construed as commentary on Rodriguez'

failure to come forward with his alibi (1) prior to arrest, (2)

immediately after arrest and Miranda warnings (the classic Doyle

violation), and (3) during the time period prior to trial but

following his arrest (the non-classic Doyle violation).3 See

Laury, 985 F.2d at 1302 and at n. 11. The Doyle protection derives

3
We are not persuaded by Rodriguez' argument in brief
that,

Where the record is ambiguous, and where the jury was
free to think it was Appellant's post-Miranda silence
that was being thrown up to him, the rule of lenity
dictates that this be considered a per-se Doyle
violation. Bifulco v. United States, 447 U.S. 381, 100
S.Ct. 2247, 65 L.Ed.2d 205 (1980).

The rule of lenity is a principle of statutory construction.
Under this rule, ambiguity may not be used to defeat manifest
congressional intent. See Bifulco, 100 S.Ct. at 2252. Thus, the
rule of lenity, as discussed in Bifulco, is inapplicable to these
facts which involve neither statutory construction nor
congressional intent.

7
primarily from the implicit assurance of the Miranda warnings and

thus is strongest in the classic Doyle context of immediate post-

Miranda-warning interrogation. See Carter, 953 F.2d at 1464.

Rodriguez does not specifically argue that the period in

question is immediately following his arrest and Miranda warnings,

and the record does not indicate that Rodriguez was Mirandized or

that there was any government-induced silence. For these reasons,

we deem the relevant period to be the time prior to trial but

following his arrest, and we note that it is questionable whether

these facts present a Doyle situation at all. Nevertheless,

assuming arguendo that there has been a Doyle violation, due to the

relevant time period, as well as the absence of indicia of

government-induced silence, we deem any such violation to be a non-

classic Doyle violation.

Standard of Review: Plain or Harmless Error?

This court normally reviews Doyle violations for harmless

error. See Chapman, 547 F.2d at 1247-48. The Government argues

that assuming, arguendo, that the prosecutor's questions violated

Doyle, "the error was a non-classic Doyle error and is subject to

review for plain error." As authority for its argument, the

Government relies on Laury and Carter, contends that Rodriguez

failed to demonstrate that his substantial rights were adversely

affected, and asserts that no relief is warranted.

In Carter, the prosecutor made three comments which were

challenged on appeal. The discussion of the second comment

(Comment 2) included an analysis of the effect of the district

8
court's curative instruction to the jury, after which the court

stated "for these reasons, we assess Comment 2 under the plain-

error standard." Id. at 1466. Relying on Carter's discussion of

Comment 2, Laury stated in a footnote that "non-classic Doyle

violations are reviewed for plain error." Laury, 985 F.2d at 1304

n.11.

Both Laury and Carter invoked the plain-error standard where

there was no objection by the defendant. Carter also applied this

standard where there was a delayed objection, followed by a

curative instruction. Neither case stands for the proposition that

"non-classic Doyle violations are reviewed for plain error."

Laury's footnote 11 correctly observes that Carter distinguished

between classic Doyle violations and non-classic Doyle violations.

In distinguishing between the two types of violations, Carter

discussed the role of Miranda warnings and noted that there may be

reasons or motives other than reliance on Miranda for the

defendant's decision to remain silent. The Carter court discussed

three considerations which militated against strict application of

Chapman's first rule (that reversal is mandated even if the story

is transparently frivolous) to Comment 2. Carter questioned

whether the "strict due process safeguards" of Chapman, derived

solely from Doyle, represent the proper approach to assessing the

harmfulness of Comment 2. Carter, 953 F.2d at 1465. It is unclear

whether the language "strict due process safeguards" refers to the

aforementioned Chapman rule or to the harmless error standard of

review. Thus, Carter does not expressly state that non-classic

9
violations are reviewed for plain error. We therefore distinguish

Laury's footnote 11 as applicable to the facts of that case, and

decline to extend it to facts such as the instant case in which the

defendant contemporaneously objected to the challenged comments.

For these reasons, we find that neither Carter nor Laury

controls the instant case on the question of "plain error versus

harmless error" standard of review. Accordingly, even assuming

that this is a non-classic Doyle violation, we follow the general

rule of harmless error analysis.

Harmless or Reversible Error?

An error is harmless if the reviewing court is sure, after

viewing the entire record, that the error did not influence the

jury or had a very slight effect on its verdict. United States v.

Quintero, 872 F.2d 107, 111 (5th Cir. 1989) cert. denied, 496 U.S.

905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), quoting United States

v. Heller, 625 F.2d 594, 599 (5th Cir. 1980). Thus, under the

harmless error doctrine, we examine whether the improper comment

had a significant impact on the jury. See Shaw, 701 F.2d at 383.

Rodriguez's defense was "not so implausible as to be dismissed

out of hand," but the evidence of his guilt (if credited by the

jury) was overwhelming. See and compare Shaw, Id. (quoting United

States. v. Impson, 531 F.2d 274, 278 (5th Cir. 1976)); United

States v. Serrano, 607 F.2d 1145, 1151-1153 (5th Cir. 1979); United

States v. Dixon, 593 F.2d 626 (5th Cir. 1979). The government

presented to the jury a tape and transcript of the conversation

10
between Rodriguez and Agent Bazan during the offense itself. This

evidence was consistent with Agent Bazan's testimony.

Unlike Laury, the instant prosecutor did not refer to

Rodriguez silence while he sat in jail, or to any other time period

other than the December 2, 1991 offense and the date of trial, May

10, 1993. The challenged questions which the prosecutor asked

Rodriguez on cross-examination do not refer to any specific time

period. Thus, although there was a "manifest" intent to refer to

Rodriguez' silence, the prosecutor made no reference to

constitutionally protected post-arrest silence. However, the

record does not reflect that the jury was made aware of the

extensive time period between the December 2, 1991 offense and the

August 19, 1992 indictment, or the March 5, 1993 arraignment.

While it is possible for the jury to speculate regarding

whether the silence questioned is pre- or post- arrest, the

character of the remark was not such that the jury would naturally

and necessarily so construe the remark. Given the unusual facts of

this case, particularly the absence of indicia of government-

induced silence, combined with overwhelming evidence in the form of

Agent Bazan's testimony which was corroborated by a tape and

transcript of the transaction itself, we do not find that the

prosecutor's ambiguously broad reference to Rodriguez' silence

influenced the jury so as to constitute reversible error.

ISSUE 2: WHETHER THE PROSECUTOR'S STATEMENTS IN HIS CLOSING ARGUMENT CONSTITUTE
PROSECUTORIAL MISCONDUCT AND A DENIAL OF DUE PROCESS?

Rodriguez specifies two comments made by the prosecutor during

closing argument: (1) "Is this the type of person that you would

11
feel comfortable living next door to you?", and (2) "The defense

has the ability to bring any person in the courtroom that they wish

to tell you anything that they think would have an impact on this

case." After the first comment, defense counsel's objection was

sustained and the jury was instructed to disregard the statement.

The defense then moved for a mistrial but the district court

overruled the motion. After the second comment, counsel approached

the bench. The district court stated that the defense objection

was a valid one. However, rather than instructing the jury to

disregard the statement as requested by the defense, the court

overruled the objection and instructed the prosecutor to tell the

jury that the defendant has no burden to prove his innocence.

"Counsel is accorded wide latitude during closing argument,

and this court gives deference to a district court's determination

regarding whether those arguments are prejudicial and/or

inflammatory." United States v. Willis, 6 F.3d 257, 263 (5th Cir.

1993) (citation and internal quotation marks omitted). Improper

comments by a prosecutor may constitute reversible error where the

defendant's right to a fair trial is substantially affected.

United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.

1990), quoted in United States v. Andrews, 22 F.3d 1328, 1341 (5th

Cir. 1994), cert. denied, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994).

The pertinent factors to consider include: (1) the magnitude of the

prejudicial effect of the statements; (2) the efficacy of any

cautionary instruction; and (3) the strength of the evidence of the

defendant's guilt. Id.; United States v. Casel, 995 F.2d 1299,

12
1308 (5th Cir. 1993), cert. denied, 114 S.Ct. 1308, 127 L.Ed.2d 659

(1994).

Reversal based on improper argument by the prosecutor is not

called for when there has not been a strong showing of a

deleterious effect upon the right to a fair trial. Casel, 995 F.2d

at 1308. To warrant reversal of a conviction, prosecutorial

misconduct must be so pronounced and persistent that it casts

serious doubts upon the correctness of the jury's verdict. United

States v. Williams, 20 F.3d 125, 134 (5th Cir. 1994), cert. denied,

115 S.Ct. 239, 130 L.Ed.2d 162 (1994) (citation and internal

quotations omitted); Andrews, 22 F.3d at 1341 (citations omitted).

The closing argument must be analyzed in the context of the entire

trial to determine whether it affected substantial rights of the

accused. United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038,

1044, 84 L.Ed.2d 1 (1985);

The prosecutor's question about Rodriguez' neighborliness was

improper but harmless, given the prompt curative instruction to

disregard the question, as well as the overwhelming evidence as

discussed above. As to the second comment, we find the curative

action sufficient to render the error, if any, harmless. Contrary

to Rodriguez' assertions, neither comment appears linked to the

prosecutor's cross-examination comment on his silence. In the

context of the entire trial, we find no error in the district

court's evaluation of the prejudicial effect of these comments.

13
ISSUE 3: WHETHER THE DISTRICT COURT PROPERLY ALLOWED ADMISSION OF FED.R.EVID.
403 AND 404(B) EVIDENCE?

Rodriguez points to the following two statements as prohibited

Federal Rule of Evidence 404(b) other crimes evidence of his

character. In the first statement, Agent Bazan told the jury that

it was his interpretation that Rodriguez' statement that, "Right

now, it's slow", referred to Rodriguez' business of buying and

selling guns or drugs. The second statement was made during

rebuttal by Medina, who gave a nonresponsive answer that he knew

Rodriguez "had been out burglarizing". The district court

sustained Rodriguez' objection to each of the challenged statements

and instructed the jury to disregard them. There was no admission,

erroneous or otherwise, of Rule 404(b) evidence, and therefore, we

do not analyze these arguments under Rule 404(b).4 Nevertheless,

the jury heard the statements; therefore, our inquiry is whether

any prejudice therefrom constitutes reversible error.

The prejudicial effect of comments such as these may be

reduced by cautionary instruction from the trial judge. See and

compare, United States v. Wilkes, 685 F.2d 135, 138 (5th Cir. 1982)

(citations omitted). See also, United States v. Contreras, 602

F.2d 1237, 1240 (1979), cert. denied, 444 U.S. 971, 100 S.Ct. 466,

62 L.Ed.2d 387 (1979).

4
For this reason, we also do not address Rodriguez'
assertion that the district court did not comply with the United
States v. Beechum, 582 F.2d 898 (5th Cir. 1978), requirement to
articulate on the record its Rule 403 balancing test findings.
There was no need for the district court to perform a balancing
test when it sustained Rodriguez' objections to the evidence.

14
 Rodriguez asserts that the Government presented two

"experienced witnesses" who told the jury their opinion that

Rodriguez was a full-time, dangerous criminal and who knew of the

prohibited nature of their statements, as well as the respective

statement's inflammatory, prejudicial effect upon the jury.

Rodriguez contends that "it is crucial that both statements were

made long before Rodriguez attempted to raise his defense of

entrapment." For the following reasons, we find these arguments

unpersuasive.

Only Agent Bazan's comment was made prior to Rodriguez'

testimony that he was entrapped. After the district court

sustained the Rule 404(b) objection, Agent Bazan went on to

testify, without objection, that Rodriguez said that he would try

to get a larger caliber firearm, and that when he got something

else, he would give Agent Bazan a better deal. Evidence that was

independent of Agent Bazan's interpretation was presented to the

jury --specifically, the transcript and tape of the conversation in

which Rodriguez had said "Right now, it's slow" (which revealed the

context of the first challenged statement), as well as Rodriguez'

testimony about what he had said and why. Thus, the jury was able

to draw its own conclusion from all the evidence and not only from

Agent Bazan's interpretation. As to Medina's answer, made during

rebuttal, we agree with the district court's observation that any

prejudicial effect it may have had was minimal because the jury was

already aware of Rodriguez' burglary conviction.

15
 Under these circumstances, we are convinced that the district

court's instructions rendered harmless any prejudicial effect from

either statement. Accordingly, we find no abuse of the district

court's discretion, and no merit to Rodriguez' various arguments on

this issue.

ISSUE 4: WHETHER THE TRIAL COURT IMPERMISSIBLY DENIED DEFENDANT'S MOTION TO
REOPEN AFTER THE CLOSE OF EVIDENCE TO ALLOW DEFENDANT TO TESTIFY TO HIS
CONVERSATION, DURING TRIAL, WITH GOVERNMENT WITNESS MEDINA IN THE
PRISON VAN?

After the close of all the evidence, court was adjourned for

the evening. The next day, prior to closing argument, the defense

moved to reopen the testimony to allow Rodriguez to testify about

the substance of a conversation he had with Medina, the informant,

on the preceding day. The following was proffered to preserve

Rodriguez' objection for appeal:

My client told me that this morning after the trial
yesterday he rode back in the same van with Albert
Medina, that they had a conversation, that my client
asked Albert Medina, "Why did you do this to me?" Albert
Medina said it wasn't you. It was --it's the carnales
which is a word the Texas Syndicate members use to refer
to themselves.

Among other things in the conversation, my client asked
Albert Medina, "Where did you get the gun?" Medina
refused to answer. "Did the ATF give you the gun?"
Medina said, "No." Then my client asked Albert Medina,
"Did you get the gun in a burglary?" Albert Medina said,
"I can't tell you." "Why can't you tell me." "I just
can't tell you."

The district court noted that the proposed evidence would be

cumulative at best, and denied the motion to reopen.

Whether to grant a motion to reopen is within the trial

court's discretion, and the parties correctly agree that the denial

of a motion to reopen is reviewed for abuse of this discretion.

16
Factors to be considered in determining whether there has been an

abuse of discretion in the trial court's denial of defendant's

motion to reopen include (1) timeliness of the motion, (2) whether

a proffer is made, (3) the character of the proffered testimony,

(4) the effect of granting the motion, (5) existence of an

explanation for failing to present the evidence during the movant's

case-in-chief, (6) whether the explanation is reasonable, and (7)

whether the proffer is relevant, admissible, technically adequate,

and helpful to the jury in ascertaining the guilt or innocence of

the accused. United States v. Walker, 772 F.2d 1172, 1177 (5th

Cir. 1985); United States v. Thetford, 676 F.2d 170, 182 (5th Cir.

1982).

Rodriguez asserts that the trial court abused its discretion

and thereby denied him the chance to add significant impeaching

testimony against the Government informant. He observes that the

evidence could not have been considered during its case in chief

because it did not exist until after the defense rested.

The motion to reopen was timely made, and referred to

information which could not have been produced during Rodriguez'

case in chief. However, evidence about Medina's involvement with

the Texas Syndicate, as well as Rodriguez' testimony that Medina

had brought the weapon, had been presented to the jury. For these

reasons, we find no error in the district court's observation that

this testimony was cumulative and, thus, would not have helped the

jury to ascertain Rodriguez' guilt or innocence. This ruling was

not an abuse of the district court's discretion.

17
ISSUE 5: WHETHER THE EVIDENCE, AS A MATTER OF LAW, WAS SUFFICIENT TO SUSTAIN
DEFENDANT'S DEFENSE OF ENTRAPMENT?

Standard of Review

Rodriguez moved for a directed verdict5 on the issue of

entrapment at the close of the Government's case, and concedes that

he did not renew his motion at the close of his own case. However,

he asserts that because the doctrine of entrapment is a court-

created doctrine, rather than a constitutional doctrine, his motion

for directed verdict was sufficient to remove this case from the

"plain error" standard. He cites no authority for this assertion,

and we do not find it persuasive.

When a jury, which was fully charged on entrapment, rejects

the defendant's entrapment defense, the applicable standard of

review is the same as that which applies to sufficiency of the

evidence. United States v. Mora, 994 F.2d 1129, 1137 (5th Cir.

1993), cert. denied sub nom, Medina v. United States, 114 S.Ct.

417, 126 L.Ed.2d 363 (1993). When a defendant fails to renew his

motion for acquittal at the close of all the evidence, plain error

is the standard of review for his challenge to the sufficiency of

the evidence. United States v. Pierre, 958 F.2d 1304, 1310 (5th

Cir. 1992) (en banc), cert. denied sub nom, Harris v. United

States, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); United States v.

Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994), cert. denied, 114 S.Ct.

1861, 128 L.Ed.2d 483 (1994) (finding plain error standard as

5
"Motions for directed verdict are abolished and motions
for judgment of acquittal shall be used in their place." Fed.
R. Crim. P. 29(a).

18
proper where the defendant fails to move for judgment of acquittal

at the close of evidence).

In United States v. Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994)

this court stated the following:

Because the Government has the burden to
prove predisposition, the issue is in essence
a challenge to the sufficiency of the
Government's evidence. The appellate court
must therefore accept every fact in the light
most favorable to [sic] jury's guilty verdict,
and may reverse only if no rational jury could
have found predisposition beyond a reasonable
doubt. United States v. Sandoval, 20 F.3d
134, 137 (5th Cir. 1994).

The instant jury rejected Rodriguez' entrapment defense after it

had been fully charged on entrapment. Therefore we may reverse

only if no rational jury could have found beyond a reasonable doubt

that Rodriguez was predisposed to commit this offense.

Legal Principles

The first step in a successful entrapment defense is to make

a prima facie showing by presenting "some evidence" that government

conduct created a substantial risk that an offense would be

committed by a person other than one ready to commit it. Mora, 994

F.2d at 1137; United States v. Hudson, 982 F.2d 160, 162 (5th Cir.

1993), cert. denied, 114 S.Ct. 100, 126 L.Ed.2d 67 (1993)

(citations and internal quotations omitted). After the defendant

satisfies this threshold requirement, he is entitled to a jury

instruction on entrapment, and the burden shifts to the Government

to prove, beyond a reasonable doubt, that the defendant was

disposed to commit the criminal act before being approached by

Government agents. Hudson, Id.

19
 The active, enthusiastic participation on the part of the

defendant is enough to allow the jury to find predisposition.

Hudson; Mora. Generally speaking, a defendant's testimony cannot

by itself establish entrapment as a matter of law because, absent

unusual circumstances, the jury is almost always entitled to

disbelieve that testimony. Mora, 994 F.2d at 1137 (citation

omitted).

Analysis

Rodriguez argues that his testimony presented evidence of

entrapment and that Agent Bazan was unable to say that he had not

been entrapped. He contends that the gun was not in Rodriguez'

possession; it remained in the trunk of Medina's car, and there

were no fingerprints on the gun to tie it to Rodriguez. Rodriguez

also argues that government involvement impermissibly led to his

entrapment. Just as in Byrd, Rodriguez' arguments, in essence,

challenge the sufficiency of the evidence against him.

The jury heard evidence that Rodriguez pulled the gun from the

trunk of the informant's car prior to the sale. From both Agent

Bazan's testimony and the tape and transcript of the transaction,

the jury could reasonably have found that Rodriguez actively and

enthusiastically participated in this offense. The only evidence

that the informant recruited Rodriguez to participate in the sale

of the gun was Rodriguez' testimony, and the jury was entitled to

discredit this testimony as well as that of any other witness.

There was sufficient evidence to support the jury's verdict: a

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rational jury could have found that Rodriguez was predisposed to

commit this offense.

CONCLUSION

For the foregoing reasons, Rodriguez' conviction is AFFIRMED.

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