United States v. Alzate ( 1995 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 94-1712



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                     LUIS ALZATE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND





                     [Hon. Ernest C. Torres, U.S. District Judge]
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                                        Before



                        Cyr, Boudin and Stahl, Circuit Judges.
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            Normand S. Zalkind with whom Zalkind,  Rodriguez, Lunt & Duncan is
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        on brief for appellant.

            Margaret F.  Curran, Assistant United  States Attorney, with  whom
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        Sheldon  Whitehouse,  United  States  Attorney,  and  Edwin  J.  Gale,
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        Assistant United States Attorney, are on brief for appellee.





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                                  November 27, 1995

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                 Per  Curiam.     Defendant  Luis   Alzate  appeals   his
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            conviction for possessing cocaine with intent  to distribute,



            21  U.S.C.     841(a)(1) and  (b)(1)(B), contending  that two



            errors in  the jury  instructions relating to  his entrapment



            defense  warrant reversal.  As Alzate failed to object at the



            time the  instructions were given,  we review only  for plain



            error.



                 1.   One element of  entrapment is  that the  government



            have instigated the defendant's conduct.  E.g., United States
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            v.  Gifford, 17 F.3d 462, 468 (1st Cir. 1994).  Alzate claims
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            that the district court erred by failing to instruct the jury



            that   the  actions   of  the   FBI's  paid   informant  were



            attributable   to   the   government.      The   government's



            responsibility for the informant was not in dispute at trial,



            and Alzate understandably sought no instruction.



                 Nevertheless,  on appeal Alzate  relies upon  an earlier



            dictum of this court that where the  government concedes that



            the  actions   of  its  informer  are   attributable  to  the



            government, the jury should be so  instructed.  United States
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            v. Annese, 631 F.2d 1041,  1048 (1st Cir. 1980).  In  Annese,
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            the trial  judge had  confused matters by  instructing jurors



            that they must  determine whether  the "inducing"  individual



            was  an agent  for  the government,  even  though no  dispute



            existed as to  that issue.   Annese certainly  does not  hold
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            that it  is reversible  error to  forego the instruction  now







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            claimed  necessary where,  as  here, no  such instruction  is



            sought and there is no indication of prejudice.



                 Ordinarily, a  claimed error  to which no  objection was



            made at trial  will not  be considered without  a showing  of



            likely effect on the outcome.  United States v. Olano, 113 S.
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            Ct. 1770, 1777-778  (1993).   Here, we have  every reason  to



            think that the jury clearly understood that the informant was



            acting  as  a   government  agent.     Undisputed   testimony



            established that  the informant  was paid by  the government,



            received instruction from FBI agents, and regularly  reported



            to  the FBI.   Indeed, the prosecution's  own closing remarks



            conceded  that the  inducer "was  a paid  FBI informant"  who



            arranged the drug  transaction "on  behalf of the  FBI."   On



            these  facts we  find no  prejudice, even  assuming that  the



            dictum in Annese should be extended beyond the peculiar facts
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            of that case.



                 2.    The  other  element  of  the  standard  entrapment



            instruction  requires  the   government  to  show   that  the



            defendant, if induced to commit the crime, was predisposed to



            do  it before  the government  approached  him.   Gifford, 17
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            F.3d.  468.  The instructions here so advised the jury in the



            conventional manner.  Among  other references, the judge told



            the jury that the entrapment defense applies when a defendant



            "who has no previous intent to commit a crime is persuaded to



            do so by the Government through  its agents."  The court also







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            said that, for an entrapment claim  to prevail, the defendant



            must  be "not predisposed to engage in such conduct" and that



            the entrapment  defense would not apply  "[i]f the Government



            proves the Defendant was ready and willing to break the law .



            . . ."



                 The subtlety  now relied upon  by Alzate  is that  under



            Jacobson  v. United States, 503  U.S. 540, 549  & n.2 (1992),
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            the government cannot prove predisposition if the defendant's



            willingness to  commit the  crime was itself  manufactured by



            the government in  the course of  dealing with the  defendant



            before he committed  the crime  charged.  We  think that  the



            first  of  the  instructions  quoted  above--referring  to  a



            defendant  with "no previous intent to commit a crime" who is



            "persuaded . .  . by the Government"--does  convey the notion



            that the question posed was whether Alzate did  have criminal



            intent before  the government  persuasion occurred.   While a
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            more  precisely tailored  instruction  might well  have  been



            suitable  if specially sought, such refinements tailoring the



            language to the situation  require that the judge  be advised



            of the request.  We  do not think that there was  plain error



            in the charge.



                 We  also have  little reason to  think that  the precise



            phrasing of the instruction affected the outcome.  Alzate did



            testify that he was repeatedly badgered by the informant, but



            his  claims were not entirely borne out by what was recorded.







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            Moreover,  Alzate,  who had  a beeper  with  him when  he was



            arrested, also was found  to have in his house  an electronic



            scale, a kit for testing cocaine including a chemical used to



            perform  the test, and a  small amount of  cocaine.  Although



            Alzate  offered the  jury  explanations for  the cocaine  and



            other  paraphernalia,   it  was  easily  within   the  jury's



            discretion to disbelieve him.



                 Affirmed.
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