United States Court of Appeals
Fifth Circuit
F I L E D
August 14, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-50668
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR GUTIERREZ, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,
District Judge.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
After a reverse-sting operation devised by the FBI to target
various members of the San Antonio Police Department willing to
commit crimes for money, a grand jury indicted Arthur Gutierrez,
Jr., a fifteen-year veteran of the police force, for various drug
offenses. The indictment charged Gutierrez with one count of
conspiring to distribute and possess with intent to distribute five
kilograms or more of cocaine, two counts of attempting to aid and
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
abet the distribution and possession with intent to distribute of
five kilograms or more of cocaine, and with two counts of knowingly
carrying a firearm during and in relation to a drug trafficking
crime. The case against Gutierrez proceeded to trial, but during
deliberations the jury deadlocked and the district court declared
a mistrial. Upon retrial a jury acquitted Gutierrez of all counts
except for one count of aiding and abetting distribution and
possession with intent to distribute. The district court sentenced
Gutierrez to 180 months’ imprisonment and five years’ supervised
release. Gutierrez now appeals his conviction, and we affirm.
I
The evidence showed that after receiving information that
officers of the San Antonio Police Department would commit crimes
in exchange for money, the FBI commenced a reverse-sting operation
centered around Ricardo Pagan, an undercover agent posing as a mid-
level drug dealer. Pagan offered San Antonio police officers
opportunities to provide security for various drug transactions
Pagan would orchestrate. Pagan’s practice was that, prior to the
jobs, he would meet with an officer and tell him in no uncertain
terms the specific nature of the transaction and the amount of
cocaine involved. He also explained to the officers that he did
not carry a gun and wanted them because they had “badges and guns,”
and could “run interference” with any of his competitors who might
attempt to pose as cops and rip him off or with actual law
enforcement officers who might stop his drug couriers during a drug
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run.
Pagan requested that the officers act as security in one of
two transactions. The first type, the “escort scenario,” involved
a load vehicle that transported fake cocaine to a specific
destination. Pagan would arrange for two police officers, one in
the lead car and the other in the trail car, to escort the load
vehicle to the point of arrival, usually a place outside of San
Antonio. The second type, the “protection transaction,” was
contained in Pagan’s hotel room. Pagan would call his courier –
another undercover agent – to bring the fake cocaine to the room.
In the presence of the participating officers, Pagan would unpack
it, display it, and then repack it. The courier would leave and
Pagan would hide the cocaine in another room, make a call to the
“buyer,” and have the buyer’s courier come to the hotel room to
pick up the drugs. Pagan again involved two officers, requesting
that one stay in the room to provide security while the other wait
in the parking lot of the hotel to notify Pagan when the buyer’s
courier arrived and to confirm whether that courier was alone or
being followed. FBI agents situated in an adjoining hotel room
recorded on video and audio every transaction and meeting Pagan
held in his hotel room.
The first mention of Gutierrez to Pagan came on July 21, 2000,
after Pagan had already conducted several transactions using Conrad
Fragozo, a sergeant on the police force, and other officers Fragozo
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had invited in.1 Pagan called Fragozo to ask if he knew of any
other officers who might want to participate, and Fragozo responded
that he had an academy buddy he had known for fifteen years, later
identified by Fragozo as Gutierrez. Gutierrez testified that on
August 21, 2000, Fragozo approached him about doing a job for a
businessman from Chicago who wanted his stripper girlfriend trailed
because he feared she was cheating on him. Gutierrez agreed to the
job, and Fragozo set up a meeting for the next day so that
Gutierrez could meet the businessman. Gutierrez explained that
once he arrived at Pagan’s hotel room, Pagan and Fragozo revealed
the true nature of the job, which was to act as security for drug
deals. Pagan stated that he needed twenty-five kilograms of
cocaine transported and wanted Gutierrez to escort the shipment.
Gutierrez responded, “No problem. Sounds easy enough.”
Pagan and Gutierrez arranged to meet back at the hotel room at
ten-thirty the next morning, August 23, for the escort. Even
though Gutierrez had to work an all night patrol shift, he stated,
“I am up for it.” Fragozo pointed out that Gutierrez was scheduled
to work security during the daytime for the Alamo Cafe, to which
Gutierrez replied that that was not a problem and he could get
someone else to work that shift. Pagan testified that he attempted
to give Gutierrez an opportunity not to participate by telling him,
“If you ever decide, hey, I am done with this, just tell me,
1
According to Pagan, Fragozo had no knowledge that Pagan was
conducting a reverse-sting operation.
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because I am not forcing anyone to do anything.” However,
Gutierrez chose to go forward with the transaction, stating,
“Sounds good to me. Give me a call early on the arrangements, so
I have time to get over here.”
On August 23, Gutierrez met Fragozo and Pagan and assisted in
the drug escort. Two undercover agents posing as drug couriers
escorted the twenty-five kilograms of cocaine to a hotel in
Schwertz, Texas, about a half an hour away. Carrying a firearm,
Gutierrez drove the trail vehicle, and after he returned, Pagan
paid him $2500. Pagan asked if the amount was fair. Gutierrez
said it was. Pagan asked if Gutierrez would be willing to do it
again and Gutierrez said he would.
About a month later, on September 20, 2000, Pagan had Fragozo
contact Gutierrez about the possibility of assisting with a
protection transaction. Gutierrez agreed, and met them on that
date to plan. On the following day, Gutierrez arrived carrying his
service weapon and was present when Pagan’s courier dropped off
fifteen kilograms of fake cocaine and Pagan unpacked and repacked
it. Pagan then instructed Gutierrez to surveil the hotel parking
lot and watch for the buyer’s courier, which Gutierrez did after
asking for a description of the vehicle the courier would be
driving. Gutierrez alerted Fragozo, who was in the hotel room, to
the courier’s arrival. After the conclusion of the transaction
Gutierrez again received $2500. Fragozo never contacted Gutierrez
about any further transactions.
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Gutierrez was indicted in March 2001. He raised three
defenses at trial. First, he argued that his initial participation
in the conspiracy was motivated by fear for his life. Second, he
asserted that he continued to participate in the scheme in order to
obtain more information about the drug smuggling as part of his own
investigation into Pagan and Fragozo’s activities, an investigation
that he maintained he did not report to his superiors for fear that
they might also be involved in the illegal activity.1 Gutierrez
also sought to raise the defense of entrapment.
The trial judge included a duress instruction but declined to
instruct on entrapment. The jury acquitted Gutierrez of conspiracy
and of the counts drawn from the August 23 transaction, which
included one count of attempting to aid and abet and a count of
carrying a firearm during a drug trafficking offense. It also
acquitted him of the charge of carrying a firearm during the
September 21 transaction. However, the jury convicted Gutierrez
for attempting to aid and abet for his role in the September 21
transaction.
II
Gutierrez first asserts that the district court reversibly
erred in refusing to give an entrapment instruction to the jury.
During the first trial Gutierrez’s attorney requested only an
1
When Gutierrez was ultimately arrested — several months
after he initially met Pagan — he still had yet to report his
investigation either to any other officer in the police department
or to any other agency.
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instruction on duress. His counsel requested an entrapment
instruction in the second trial. The trial judge denied
defendant’s requests for “supplemental instructions” during the
second trial on the basis that they either were not supported by
the evidence or because they were sufficiently covered in the
proposed instructions.1
We review de novo a trial court’s refusal to instruct the jury
on the defense of entrapment.2 We have recently reminded that
“[w]here there is an evidentiary foundation for a theory of defense
that, if credited by the jury, would be legally sufficient to
render the accused innocent, it is reversible error to refuse a
charge on that theory.”3 Therefore, “‘when a defendant’s properly
requested entrapment instruction is undergirded by evidence
sufficient to support a reasonable jury’s finding of entrapment,
the district court errs reversibly by not adequately charging the
jury on the theory of entrapment.’”4
The core question regarding entrapment is whether the criminal
intent originally resided in the defendant; in other words, whether
1
The instructions given did not mention entrapment.
Therefore, we assume the district court refused to instruct the
jury on entrapment because it did not believe sufficient evidence
existed in the record to warrant the defense.
2
United States v. Ogle, 328 F.3d 182, 185 (5th Cir. 2003).
3
Id. (internal quotation marks omitted).
4
Id. (quoting United States v. Bradfield, 113 F.3d 515, 521
(5th Cir. 1997)).
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the government planted the seed of criminality, or instead whether
the defendant was willing to perpetrate the offense and the
government simply provided the opportunity.5 “Entrapment only
arises ... where the Government, in its ‘zeal to enforce the law,’
‘implant[s] in an innocent person’s mind the disposition to commit
a criminal act, and then induce[s] commission of the crime so that
the Government may prosecute.’”6 Therefore, to be entitled to an
entrapment instruction, a defendant bears the burden of presenting
evidence of “‘(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.’”7
Gutierrez’s claim for an entrapment instruction founders on
the government inducement prong of the entrapment defense. He
argues that government inducement was evident in two ways: First,
in the nature of the sting operation itself, and second, in the
conduct of Fragozo, the individual who recruited him into the
scheme. However, neither presents sufficient evidence of
government inducement to require a jury instruction.
Gutierrez points to three characteristics of the sting
operation that he maintains evidence governmental inducement of
5
Id.
6
Id. (quoting Jacobson v. United States, 503 U.S. 540, 548
(1992)).
7
Id. (quoting Bradfield, 113 F.3d at 521).
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criminal activity. First, Gutierrez argues that the operation was
improper since it resulted in the indictment of persons who were
not its original targets. Second, he argues that the sting
operation was improperly broad in scope. Finally, Gutierrez
maintains that inducement is evident in the fact that the
individual targets of the investigation were intentionally kept
unaware of the activities of the other targets of the
investigation.
Gutierrez’s arguments take the entrapment defense beyond its
limits. Government involvement in the offense is not the
equivalent of government inducement. “Government inducement
consists of the creative activity of law enforcement officials in
spurring an individual to crime.”8 None of the characteristics of
the sting operation identified by Gutierrez establish improper
government inducement, or indicate that the Government went beyond
the bounds of proper law-enforcement activity. Simply because the
chain of events leading to the defendant’s arrest originated with
the government does not entitle a defendant to an entrapment
instruction. “It is proper (i.e., not an ‘inducement’) for the
government to use a ‘sting,’ at least where it amounts to providing
a defendant with an ‘opportunity’ to commit a crime.”9
8
Bradfield, 113 F.3d at 522.
9
United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994);
see also Jacobson v. United States, 503 U.S. 540, 548 (1992)
(noting that law enforcement officers may employ “‘artifice and
-9-
That the operation resulted in the indictment of persons not
originally targets of the investigation does not establish improper
government conduct. Similarly, that the investigation was broad-
ranging, or that the targets of the investigation were unaware of
the roles played by other members of the conspiracy, is irrelevant.
And Gutierrez cites no authority to support his claim that the
Government improperly induces crime by casting a wide net.
Gutierrez relies on United States v. Gendron,10 but it in fact
undermines any argument that the sting operation against Gutierrez
was improper. Gendron set forth seven examples of government
activity that might be considered improper, none of which embrace
the sting operation at issue here.11 All of the examples listed in
stratagem . . . to catch those engaged in criminal enterprises’”
(quoting Sorrells v. United States, 287 U.S. 435, 441 (1932))).
10
18 F.3d 955.
11
Id. at 961–62 (“Courts have found a basis for sending the
entrapment issue to the jury (or finding entrapment established as
a matter of law) where government officials: (1) used
‘intimidation’ and ‘threats’ against a defendant’s family, United
States v. Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called
every day, ‘began threatening’ the defendant, and were belligerent,
United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993); (3)
engaged in ‘forceful’ solicitation and ‘dogged insistence until
[defendant] capitulated,’ [United States v. Rodriguez, 858 F.2d
809, 815 (1st Cir. 1988)]; (4) played upon defendant’s sympathy for
informant’s common narcotics experience and withdrawal symptoms,
[Sherman v. United States, 356 U.S. 369, 373 (1958)]; (5) played
upon sentiment of ‘one former war buddy ... for another’ to get
liquor (during prohibition), [Sorrells v. United States, 287 U.S.
435, 440-41]; (6) used ‘repeated suggestions’ which succeeded only
when defendant had lost his job and needed money for his family’s
food and rent, United States v. Kessee, 992 F.2d 1001, 1003 (9th
Cir. 1993); (7) told defendant that she (the agent) was suicidal
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Gendron involve either threatening or harassing conduct or actions
designed specifically to take advantage of the defendant’s
weaknesses, and all involve conduct more egregious than the
initiation of a broad sting operation.
Gutierrez also points to a statement from United States v.
Anderton that entrapment may arise “even though the person
implanting the illegal purpose is an ignorant pawn of the
government,”12 arguing that Fragozo’s conduct should be attributed
to the Government and thereby suffices to establish the requisite
government inducement. Even if Fragozo’s actions could be
attributed to the Government, however, those actions do not amount
to government inducement. Gutierrez’s sole support for the
position that Fragozo improperly induced Gutierrez’s participation
is Gutierrez’s claim that he was frightened of Fragozo because
Fragozo, his superior on the police force, had access to the police
computer and knew where Gutierrez lived. Yet Gutierrez’s asserted
fear is unsupported by any suggestion that Fragozo ever threatened
him, harassed him, or manipulated his personal weaknesses to
convince Gutierrez to join the conspiracy. Nor does Gutierrez
point to any evidence of his hesitation to join the scheme or that
such hesitation was overcome only by Fragozo’s inducements.
and in desperate need of money, United States v. Sullivan, 919 F.2d
1403, 1419 & n. 21 (10th Cir. 1990).”).
12
629 F.2d 1044, 1047 (5th Cir. 1980).
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The burden of establishing government inducement is on
Gutierrez, and absent more, the mere claim that he was personally
frightened of Fragozo is insufficient to establish “a reasonable
doubt on the ultimate issue of whether criminal intent originated
with the government.”13 Because Gutierrez did not satisfy his
burden of presenting evidence of government inducement, the
district court did not err in denying an instruction on the defense
of entrapment.
III
Gutierrez also contends that the district court erred in
denying his motions to dismiss for outrageous government misconduct
without holding an evidentiary hearing. The denial of a motion to
dismiss an indictment for outrageous government misconduct is
reviewed de novo,14 while a district court’s decision not to hold
an evidentiary hearing before denying a motion to dismiss an
indictment is reviewed for an abuse of discretion.15
“Government misconduct does not mandate dismissal of an
indictment unless it is so outrageous that it violates the
principle of fundamental fairness under the due process clause of
13
Bradfield, 113 F.3d at 521.
14
United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir.
1997).
15
See United States v. Linetsky, 533 F.2d 192, 203 (5th Cir.
1976).
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the Fifth Amendment.”16 As such, dismissal of an indictment for
outrageous government conduct is proper only in “the rarest
circumstances.”17 Accordingly, a defendant claiming outrageous
government conduct bears “an extremely high burden of proof,” and
must demonstrate, in light of the totality of the circumstances,
both substantial government involvement in the offense and a
passive role by the defendant.18 The requirement that the defendant
play only a passive role means that “[a] defendant who actively
participates in the crime may not avail himself of the defense.”19
Although on appeal Gutierrez correctly states the law in
regard to this claim, he fails to cite any portion of the record in
support of his charge of outrageous conduct or point to specific
facts tending to establish one of those rare circumstances in which
the government’s conduct is so outrageous that it implicates
principles of fundamental fairness. Instead, Gutierrez’s entire
argument on this issue on appeal consists of the conclusory
statement that his case presents “a set of circumstances falling
within the ‘rarest and most outrageous.’”
We do not find error in the district court’s refusing to
16
United States v. Johnson, 68 F.3d 899, 902 (5th Cir. 1995)
(internal quotation marks omitted).
17
Id.
18
Asibor, 109 F.3d at 1039.
19
United States v. Evans, 941 F.2d 267, 271 (5th Cir. 1991)
(internal quotation marks omitted).
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conduct an independent hearing on the allegations of government
misconduct. Gutierrez’s allegations of misconduct, centering on
surreptitiously recorded audio tapes of two FBI agents discussing
the reverse-sting operation, bore virtually no relevance to the
government’s case against him. The government’s case was grounded
not on the testimony or credibility of the agents on the audio
tapes – whom neither party called to testify at trial – but was
instead based on the video tapes of Gutierrez interacting with
Pagan and Fragozo.20
Moreover, the district court rightly concluded that Gutierrez
“asserted nothing that would imply that [his] participation” in the
enterprise “was passive,” thereby removing the outrageous
government misconduct claim from his reach. In its response to
Gutierrez’s first misconduct motion, the government explained that
he, along with other defendants, had “made their presence known as
the hired muscle for someone they suspected to be a narcotics
trafficker in what they believed to be his illegal dealings in
20
Gutierrez asserts that, subsequent to his conviction,
another FBI agent involved in the reverse-sting, Tonie Jones,
pleaded guilty to making false statements in regard to the
investigation. Gutierrez argues that Jones’s actions during the
investigation may constitute outrageous government conduct
warranting dismissal of the indictment, and asks that we remand the
case to the district court so that it may conduct a hearing on the
issue. However, a review of the factual basis for Jones’s plea
makes clear that the allegations against Jones – who was not a
witness in Gutierrez’s trial – relate only to his untruthful
statements that he and another agent did not assist in taping a
conversation with FBI management in June 1998, not to anything that
would have related to the investigation into Gutierrez’s activities
in 2000. Therefore we decline to remand on that basis.
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order to provide intimidation and further protect the suspected
dealer,” made “phone calls to each other to report movements of
suspected drug traffickers [and] surveill[ed] people believed by
them to be drug traffickers,” and “protect[ed] what they believed
to be drugs, drug proceeds and drug traffickers, including
escorting (driving their personal vehicles) load vehicles in order
to insure their safe arrival at [the] delivery location[].”
Gutierrez did not refute these allegations, which the
government supported with evidence at trial. The testimony showed
that during the September 21 transaction Gutierrez agreed to
provide security for a drug deal, asked Pagan for a description of
the buyer’s courier’s vehicle so he would be able to spot it upon
its arrival into the parking lot, programmed Fragozo’s cell phone
number into his own cell phone so that he would be able to contact
Fragozo as soon as the courier arrived, and waited in the parking
lot to notify Fragozo upon the courier’s arrival. The district
court did not err in concluding that Gutierrez could not prevail on
his outrageous government conduct argument since he provided more
than “meager assistance” during the operation of the enterprise.21
IV
Gutierrez’s last point of error has been fluid over the course
of this appeal. In his brief Gutierrez argues that the district
court abused its discretion in refusing to admit portions of audio
21
See United States v. Tobias, 662 F.2d 381, 386 (5th Cir.
Unit B 1981).
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tape recordings of certain FBI agents talking amongst themselves
about the reverse-sting operation, although he failed to cite to
the portion of the record in which the district court allegedly
denied his request to admit the tapes at trial. At oral argument,
Gutierrez did not contend that the district court erred in not
admitting these recordings into evidence. Rather, the argument was
that it wrongly denied Gutierrez access to the redacted portions of
the tapes.
The government’s brief urges that it has not been able to
locate any proffer by Gutierrez of any portion of the tapes, and at
oral argument the prosecutor explained that he did not remember any
request by the defendant for the district court to disclose to
Gutierrez the redacted portions of the tapes. Despite prompting
during oral argument, Gutierrez could not furnish the court with
any citation to the record supporting either of his assertions.
Our own review of the record has also failed to turn up anything of
the sort.22 Because Gutierrez has shown neither that the district
22
As for Gutierrez’s claim that the trial court refused to
admit the audio tapes into evidence, only two documents arguably
bear on this issue. First, the government filed a motion in limine
requesting that the court bar the defense from “releasing [to the
jury venire or the jury] the existence and contents of these tapes
... until the relevancy of the tape recordings has been
demonstrated by the Defense.” The motion did not request a
determination on the admissibility of the tapes, but rather simply
asked that the court preclude the defense from mentioning the tapes
before they demonstrated their admissibility.
Second, in his “Motion for a Protective Order to Prevent the
FBI from ‘Manipulating the Judicial System’ and ‘Screwing the
System’ and for an Evidentiary Hearing to Illicit Evidence of
Outrageous Government Conduct,” one of a bevy of near-identical
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court refused to admit any of the tapes into evidence at trial nor
that it refused his request to have access to the redacted portions
of the tapes, these issues are not properly before us for review.
V
We AFFIRM Gutierrez’s conviction for attempting to aid and
abet distribution of and possession with intent to distribute five
or more kilograms of cocaine. Gutierrez’s motions to supplement
the record, to reverse his conviction and remand the case for a new
trial, to remand for the purpose of ordering an evidentiary
hearing, and to abate the appeal are DENIED. The Government’s
motion to seal all filings in this appeal is GRANTED pending
further order by this court or the district court.
motions filed prior to commencement of his first trial, Gutierrez
requested, in addition to an evidentiary hearing, “the right to
present [the audio tapes] in evidentiary form so that the jury can
see that there were attempts to delete and/or alter documents, and
even attempts to train the agents to prepare different sets of
documents.” The district court denied the “Motion for [a]
Protective Order and for [a]n Evidentiary Hearing” but did not
express any opinion on the admissibility of the tapes at trial.
Gutierrez did not seek at trial to introduce the audio tapes.
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