United States v. Franz P. Cannet

Case: 16-16801 Date Filed: 08/31/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-16801
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60117-DTKH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANZ P. CANNET,
a.k.a. Chico,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 31, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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Franz P. Cannet was charged with multiple drug and firearms offenses after

he assisted an undercover agent with three drug transactions. Cannet served as a

bodyguard for the agent during the transactions. At trial, Cannet unsuccessfully

raised an entrapment defense; the jury found him guilty of conspiracy with intent

to distribute five kilograms or more of cocaine, three counts of attempt to possess

with intent to distribute cocaine, conspiracy to use a firearm during a drug-

trafficking crime, and use of a firearm. The district court sentenced him to 180

months’ imprisonment. This is Cannet’s appeal.

Cannet argues that (1) the trial evidence was insufficient to support his

convictions, (2) the district court erred in denying his motion for mistrial, (3) the

district court provided an improper supplemental jury instruction, and (4) the

district court violated Apprendi v. New Jersey1 in sentencing him. After carefully

considering these arguments, we find no reversible error. Therefore, we affirm.

I. SUFFICIENCY OF THE EVIDENCE

Cannet asserts that, in light of his entrapment defense, the trial evidence was

insufficient to support his convictions. “The entrapment defense involves two

separate elements: (1) [g]overnment inducement of the crime, and (2) lack of

predisposition on the part of the defendant.” United States v. Isnadin, 742 F.3d

1278, 1297 (11th Cir. 2014) (emphasis omitted). “The defendant bears an initial

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530 U.S. 466, 120 S. Ct. 2348 (2000).
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burden of production to show that the first element . . . is met.” Id. (emphasis

omitted). “Once the defendant makes this initial showing, the burden shifts to the

[g]overnment to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime.” Id. Cannet contends that, although he made an

initial showing of inducement, the government failed to prove that he was

predisposed to commit his offenses. But taking the trial evidence “in the light most

favorable to the [g]overnment,” the evidence was sufficient to establish that Cannet

was predisposed to commit the offenses. See id. at 1303.

First, the evidence indicates that Cannet readily agreed to serve as a

bodyguard for the undercover agent during drug transactions. See id. at 1298

(“Predisposition may be demonstrated simply by a defendant’s ready commission

of the charged crime.” (quoting United States v. Brown, 43 F.3d 618, 625

(11th Cir. 1995)). When Cannet and the agent first discussed Cannet serving as a

bodyguard, the agent informed Cannet that drugs would be involved, and

according to testimony from the agent, Cannet responded: “I don’t need to know

what we are taking, I am here to bodyguard you.” Cannet also quoted a price for

his services.

Second, Cannet had ample opportunity to back out of his arrangement with

the undercover agent, but he failed to do so. See id. (“A predisposition finding is

also supported by evidence that the defendant was given opportunities to back out

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of illegal transactions but failed to do so.” (quoting Brown, 43 F.3d at 625). After

Cannet’s initial discussion with the agent, a few months went by before Cannet

actually served as a bodyguard for a drug transaction. And before that transaction,

the agent attempted to renegotiate Cannet’s payment, thus providing Cannet a

chance to back out. However, Cannet decided to proceed—he agreed to work for

less pay.

Finally, the government offered evidence showing that Cannet, throughout

his interactions with the undercover agent, made statements underscoring his

willingness to assist the agent in drug transactions. See id. (“Post-crime statements

will support a jury’s rejection of an entrapment defense.” (quoting Brown, 43 F.3d

at 625). Cannet, for example, told the agent that he knew individuals who would

buy drugs from the agent.

II. MOTION FOR MISTRIAL

Cannet next argues that the district court erred in denying his motion for

mistrial. He moved for mistrial after the undercover agent testified that he

shoplifted once while he was with the agent. That testimony, Cannet contended,

was “gratuitous, unnecessary, and unsubstantiated.” Cannet reiterates this

argument on appeal. But even assuming that the testimony was improper, reversal

is not warranted because the testimony did not “prejudicially affect[]” Cannet’s

“substantial rights.” See United States v. Newsome, 475 F.3d 1221, 1227

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(11th Cir. 2007) (per curiam). Cannet asserts that the testimony prejudiced him

because it suggested that he is predisposed to criminal activity. However, “the

record contains sufficient independent evidence” establishing Cannet’s

predisposition. See id. (“[W]hen the record contains sufficient independent

evidence of guilt, any error was harmless.”).

III. JURY INSTRUCTIONS

Cannet also argues that the district court erred because it provided an

improper supplemental jury instruction. This challenge fails, however, because the

supplemental jury instruction neither inaccurately presented the law nor improperly

guided the jury in a substantial way. See Isnadin, 742 F.3d at 1296 (“We will not

reverse a conviction on the basis of a [supplemental jury instruction] unless the

issues of law were presented inaccurately, or the [instruction] improperly guided

the jury in such a substantial way as to violate due process.” (internal quotation

marks omitted)). The jury asked the district court: “If we think [Cannet] was

possibly a victim of entrapment [when he served as a bodyguard during the first

drug transaction,] does it negate everything else that came after?” And the court

responded: “The defense of entrapment has been raised as to each count in the

indictment. As indicated in the jury instructions, you should evaluate each count

independently.” That instruction accurately presented the law. See id. at 1297

(finding no error where the district court “instructed [the jury] to consider the

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defense of entrapment separately and individually as to each defendant and each

count charged in the indictment”). Further, when we review the instruction “as

part of the entire jury charge [and] in light of the . . . evidence presented,” the

instruction did not improperly guide the jury in a substantial way. See id. at 1296.

IV. APPRENDI CHALLENGE

Lastly, Cannet argues that the district court violated Apprendi because, in

determining his advisory Sentencing Guidelines range, the court relied on facts that

it, rather than the jury, found. We disagree. Apprendi is implicated only when a

defendant is sentenced above the statutory maximum. See United States v. Dudley,

463 F.3d 1221, 1228 (11th Cir. 2006) (“[The defendant] was not sentenced beyond

the statutory maximum, so there is no Apprendi error.”). And the district court

sentenced Cannet below the statutory maximum.

V. CONCLUSION

In sum, the trial evidence was sufficient to support Cannet’s convictions, the

district court did not err in denying Cannet’s motion for mistrial, the district court

did not commit reversible error in providing the supplemental jury instruction, and

the district court did not violate Apprendi in sentencing Cannet.

AFFIRMED.

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