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
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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.
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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.
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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,
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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
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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
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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
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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
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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
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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).
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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
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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
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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
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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
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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
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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.
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