United States v. Alberto Grajales ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14273 JAN 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20964-PAS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
ALBERTO GRAJALES,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 10, 2012)
Before WILSON and FAY, Circuit Judges, and RESTANI,* Judge.
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
FAY, Circuit Judge:
After a jury trial, Alberto Grajales appeals his convictions for conspiring
and attempting to interfere with commerce by robbery, in violation of 18 U.S.C. §
1951(a); conspiring and attempting to possess with intent to distribute five or more
kilograms of cocaine, in violation of 21 U.S.C. § 846; and possessing a firearm in
furtherance of a crime of violence and a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). Grajales raises three issues on appeal. First, he argues that
the district court erred when it refused to instruct the jury on his entrapment
defense. Second, Grajales argues that the district court erred when it instructed the
jury that his honestly held belief that he was helping law enforcement also had to
be objectively reasonable in order to negate his specific intent. Finally, Grajales
argues that the district court erred when it prevented him from testifying regarding
non-hearsay statements that were crucial to his defense. For the reasons set forth
below, we reverse.
I.
This case involves an undercover reverse sting operation. The investigation
was triggered when a confidential informant, Aliocha Billalba (“CI”), met with the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) agents to discuss
2
information he had obtained regarding Grajales. The CI informed ATF that
Grajales had recently expressed an interest in coordinating an armed robbery for
multiple kilograms of cocaine. Eventually, Grajales and several other parties
attempted to participate in the armed cocaine robbery and were subsequently
arrested.
On November 19, 2009, a federal grand jury indicted Grajales. He was
charged with conspiring and attempting to obstruct interstate commerce by means
of robbery, in violation of 18 U.S.C. § 1951(a); conspiring and attempting to
possess with intent to distribute more than five kilograms of cocaine, in violation
of 21 U.S.C. §§ 841 and 846; and possessing a firearm in furtherance of these
offenses, in violation of 18 U.S.C. § 924(c).
The following facts were submitted into evidence at trial, and we consider
the factual background in the light most favorable to the government. United
States v. Glen-Archila, 677 F.2d 809, 812 (11th Cir. 1982).
A. Testimony of Government
Grajales’s trial began on May 3, 2010. At trial, an undercover law
enforcement officer, Detective Juan Sanchez (“Sanchez”), testified that the
investigation in this case involved the use of a CI and that the CI initiated all
recorded phone calls with Grajales. Prior to his first meeting with Grajales, the CI
3
called Grajales several times to set up a meeting between them. Although Grajales
and the CI arranged a meeting for October 8, 2009, Grajales declined to attend.
Therefore, the CI called Grajales and set up a meeting with Sanchez for October
15, 2009.
On October 15, 2009, the CI drove Grajales to the first meeting between
Sanchez and Grajales. On the way to the meeting, Grajales asked the CI,
“[W]hat’s this about . . . .? What merchandise?” The CI responded that it was
related to something from the airport. Once Sanchez arrived, Grajales asked
Sanchez to explain the situation to him. Sanchez explained that the merchandise
involved drugs and that he would be delivering a large shipment of cocaine to a
stash house. Grajales questioned whether there were cameras, and even though
Sanchez responded “no,” Grajales said the job would be easy even if there were
cameras. Grajales further questioned whether the goal was to get the money or the
cocaine. When Sanchez responded that he did not know whether there would be
any money, Grajales explained that “the stuff would be for you” but questioned
whether Sanchez was “able to sell it?” Additionally, Grajales explained that he
had people that were “pros” and that his guys even had police uniforms that they
could use to commit the robbery.
Subsequently, the CI arranged two additional meetings. The CI arranged
4
the second meeting between the CI, Sanchez, and Grajales for October 26, 2009.
A member of Grajales’s crew, Barrera-Avila, was also present. At this meeting,
Sanchez explained that a shipment of cocaine was arriving the following week.
The CI arranged the third meeting between Sanchez, the CI, Grajales, and Barrera-
Avila for November 3, 2009. During the third meeting, Sanchez informed
Grajales and Barrera-Avila that the delivery of the cocaine shipment would take
place the following day. Grajales and Barrera-Avila agreed to go forward with the
armed robbery and stated that they would be bringing three other individuals to
assist in committing the robbery. They further explained that, after the robbery, all
of the participants would meet at Grajales’s house.
On November 4, 2009, the day of the planned robbery, the CI called
Grajales. During this phone call, Grajales advised the CI that he was concerned
that his crew was going to steal from him, and therefore he wanted to bring in an
additional person for protection. On the same day, the CI placed another phone
call to Grajales and advised him to meet at a shopping center to execute the
robbery.
Subsequently, Grajales arrived at the location, entered the CI’s vehicle, and
proceeded to a predetermined location. While Grajales was in the CI’s vehicle, he
called someone on the phone and offered him $10,000 to $15,000 if he could get a
5
car and meet Grajales. Grajales also spoke with the CI and told him that the
scheme “better not be a fairytale.” After speaking with the CI, Grajales called the
additional person he wanted for protection and explained to him that the plan was
a “sure thing.” However, when Grajales and the CI arrived at the predetermined
location, Grajales observed law enforcement and informed the person on the
phone: “Listen, wait. This, this was a trap, wait.”
At the close of the government’s case-in-chief, Grajales moved, pursuant to
Federal Rule of Criminal Procedure 29, for judgment of acquittal on all five counts
of the indictment. Grajales argued, in part, that there was entrapment as a matter
of law based on the persistent contact between the CI and Grajales. In support of
this argument, Grajales noted that the CI had called him approximately fifty times
prior to November 4, 2009, while Grajales had called the CI approximately six
times. He further argued that, prior to the first meeting with Sanchez, Grajales did
not know that the plan involved cocaine and initially stated that he did not want
any cocaine. The district court held that it was inappropriate to consider
entrapment as a defense at the close of the government’s case-in-chief.
B. Grajales’s Testimony
In his defense, Grajales elected to testify at trial. From the start of his
testimony, there was some question over whether the district court would allow
6
Grajales to testify to statements made to him by the CI that allegedly induced his
participation in the scheme. When defense counsel asked Grajales what the CI
told him to compel his involvement, the government objected on hearsay grounds.
Defense counsel explained that the statements were not offered for the truth of the
matter asserted but rather to show what Grajales believed. The court initially
overruled the objection but then held a side-bar discussion. After the government
argued that Grajales could be asked what he believed but not what someone else
told him, the court sustained the objection and directed counsel to rephrase the
question.
Grajales then explained his relationship with the CI. He testified that he
knew the CI for almost four years. Beginning in May 2009, the CI repeatedly
approached Grajales and attempted to enlist his involvement in various robberies
and burglaries. However, Grajales testified that he repeatedly declined to
participate.
Grajales further testified that, on September 30, 2009, the CI approached
Grajales again and explained to him that he had avoided a ten-year sentence for
drug trafficking and was released from prison after a year because he cooperated
with the government. The CI further explained that he decided to work as a paid
informant for the police. Grajales then asked the CI to introduce him to the police
7
officers. Following this testimony, the government asked for a side-bar.
At the side-bar conference, the government argued that this testimony went
to a public authority defense, and the defendant had not notified the government of
such a defense. Defense counsel responded that the testimony was relevant to the
entrapment defense, as well as to whether Grajales had the intent to commit the
crime. After further discussion, the district court instructed the jury that Grajales
was not authorized to work on behalf of law enforcement.
Grajales’s testimony resumed, and he continued to attempt to explain that he
knew about the sting operation. However, the government objected to testimony
by Grajales involving statements made to him by the CI regarding why the CI
would not take him to meet with law enforcement; what was said to Grajales to
compel his involvement after the CI declined to introduce him to law enforcement;
the guarantee made to Grajales by the CI that nothing would happen to him; and
the conversation Grajales had with the CI regarding the CI allegedly requesting
that Barrera-Avila participate in the robbery. The district court sustained the
government’s objections, and disallowed Grajales to testify on these issues.
Despite the court sustaining the government’s objections, Grajales
managed to explain that the CI told him that he could not meet with the police
because the CI was not yet working with them directly, and therefore the CI swore
8
on photographs of his own children as a guarantee that nothing would happen to
Grajales. Further, although he was prevented from testifying to what the CI told
him to compel his involvement after the CI declined to introduce him to law
enforcement, Grajales did testify to what he believed. Grajales testified that he
believed the CI had only served one year of his ten-year sentence, and therefore he
believed the CI was working for law enforcement. Finally, while Grajales was
excluded from testifying to his conversation with the CI regarding Barrera-Avila’s
participation, he did testify that it was the CI’s idea to involve Barrera-Avila.
Subsequently, Grajales testified about how he learned about the operation
and his reasons for participating in it. Grajales testified that the CI informed him
that Sanchez was a police officer and that he should play along with the scenario
Sanchez presented. Grajales believed that, if law enforcement learned that he
knew about the operation, the operation would fail. Additionally, he participated
in the operation because he wanted to help the CI, and he believed that Barrera-
Avila had previously set fire to two of his cars.
Grajales then testified to his thoughts after conversations he had with the CI
that were not recorded. Grajales thought that no actual cocaine would be involved
and that he would not be arrested. He thought that, when he and the CI were
arrested, the CI would explain to law enforcement Grajales’s involvement.
9
However, the district court sustained the government’s hearsay objections to
defense counsel’s attempts to ask Grajales whether he: (1) tried to explain his
arrangement with the CI to the police when he was arrested; (2) told the police to
get cameras from his home, which he allegedly set up because he believed it
would help him to confirm that he was working with police; and (3) asked the
police to bring the CI into the interrogation room after Grajales was arrested.
At the end of Grajales’s testimony, he explained that he knew there were no
drugs, but asked questions because he had to play along. Grajales maintained that
his phone calls to the other participants were part of the ruse. He further avowed
that, before the CI contacted him, he had never wanted to commit a home invasion
robbery, possess cocaine, or distribute cocaine. The CI asked him countless times,
and he told him no every time he asked.
C. Jury Instructions
Following Grajales’s testimony, the district court refused, over Grajales’s
objection, to charge the jury on entrapment. The court concluded that there was
not even a scintilla of evidence that there was mild coercion. Defense counsel
objected, arguing he presented enough evidence for an entrapment instruction.
Nevertheless, the district court refused to instruct on the entrapment defense, but
stated that it would instruct the jury on a lack of mens rea defense. Grajales
10
objected to the instruction because it required his belief that he was working for
law enforcement to be both honestly held and objectively reasonable. The district
court overruled Grajales’s objection and instructed the jury as follows:
If you find . . . that the defendant had the honest and reasonable belief
that he was performing the criminal acts with which he is charged to
help law enforcement, in other words that he did not have the specific
intent to commit the crimes charged, then you would be required to
return a verdict of not guilty.
The court further instructed the jury that the defense of entrapment was not a
defense.
II.
“We have long held that the sufficiency of the defendant’s evidence of
government inducement is a legal issue to be decided by the trial court.” United
States v. Sistrunk, 622 F.3d 1328, 1332-33 (11th Cir. 2010). And, just as in
Sistrunk, we do not need to make a determination of the standard here—whether a
de novo or abuse of discretion standard applies—because under either standard the
result is the same. We similarly review jury instructions de novo to determine
whether they misstated the law or misled the jury. Brochu v. City of Riviera
Beach, 304 F.3d 1144, 1155 (11th Cir. 2002).
We review for abuse of discretion a district court’s evidentiary rulings,
United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009), and we review
11
de novo constitutional claims. United States v. Nash, 438 F.3d 1302, 1304 (11th
Cir. 2006) (per curiam).
III.
Grajales first argues that the district court erred by refusing to instruct the
jury on his entrapment defense, and instead, directing a verdict on that defense.
Specifically, he argues that he merited an entrapment defense because he met his
burden of producing sufficient evidence of government inducement through his
own testimony. Moreover, he contends that the government’s evidence also
supported his requested instruction. We agree.
Entrapment is an affirmative defense. United States v. Orisnord, 483 F.3d
1169, 1178 (11th Cir. 2007). “There are two elements to an entrapment claim: (1)
government inducement of the crime and (2) the defendant’s lack of predisposition
to commit the crime before the inducement.” Id. As entrapment is an affirmative
defense, the defendant bears the initial burden of producing evidence that is
sufficient to raise a jury issue on the question of whether the government’s
conduct created a substantial risk that the offense would be committed by a person
other than one ready to commit it. Id.The defendant will be considered to have met this burden if he produces
12
evidence that the government’s conduct included some form of persuasion or mild
coercion. United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). The
defendant “may make such a showing by demonstrating that he had not favorably
received the government plan, and the government had to ‘push it’ on him or that
several attempts at setting up an illicit deal had failed and on at least one occasion
he had directly refused to participate.” United States v. Andrews, 765 F.2d 1491,
1499 (11th Cir. 1985) (internal citations omitted). Moreover, “the government’s
evidence can provide this requisite evidentiary base for an entrapment instruction,
and [the] failure to give an instruction when the defendant has met his burden is
reversible error.” United States v. Bagnell, 679 F.2d 826, 834-35 (11th Cir. 1982)
(citing United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977) (internal
citation omitted)).
Here, Grajales met his burden of producing sufficient evidence of
government inducement both through his own testimony and the government’s
evidence. Grajales testified that it took the CI months to get him to participate in
the robbery, and that before the CI contacted him, he never wanted to commit a
home invasion robbery, possess cocaine, or distribute cocaine. Beginning in May
13
2009,1 the CI constantly called him and showed up at his house soliciting his
participation in various home invasion robberies, which he repeatedly declined.
This testimony provides some evidence that Grajales had not favorably received
the government’s plan, and therefore it had to “push it” on him.
As to the government’s evidence, Sanchez testified that the CI initiated all
recorded phone calls with Grajales and that the CI set up all of the meetings with
Grajales. The CI called Grajales fifty times between October 5, 2009, and
November 4, 2009, while Grajales placed six calls to the CI.2 Additionally, the
government’s evidence established that on one occasion Grajales had refused to
participate in the scheme. Sanchez testified that Grajales failed to attend the first
scheduled in-person meeting that the CI and Sanchez set up. Based on this
evidence, a reasonable jury could infer that Grajales missed this meeting because
1
The government argues that any alleged propositions prior to October 2009 were not
sponsored by the government. We disagree. A government’s witness, Espinosa, testified that the
CI approached him about Grajales in June 2009. Furthermore, the transcripts of the October 5th
phone call reveal that Grajales already appeared to be familiar with the deal the CI was arranging.
This suggests the CI told Grajales about the plan prior to the phone call, and therefore the CI was
working with Grajales prior to October 5, 2009. In engaging the CI, the government sponsored
this plan, including its inception.
2
The number of phone calls are taken from defense counsel’s arguments during his
motion for judgment of acquittal. At that time, defense counsel explained that the evidence of
the calls were taken from Agent Stith’s report. Agent Stith, a government witness, testified at
trial to phone records for both Grajales and the CI. The government does not contest that the
number of calls made by the CI vastly outnumbered the calls made by Grajales.
14
he was having second thoughts about going through with the CI’s proposed
scheme.3 Mathews v. United States, 485 U.S. 58, 63 (1988) (holding the
defendant is entitled to an entrapment instruction when sufficient evidence exists
from which a reasonable jury could find entrapment). Nevertheless, the CI
contacted Grajales once again and set up another meeting for him to attend with
Sanchez and the CI. Furthermore, prior to the first meeting, Grajales did not know
that the deal involved cocaine and initially stated that he did not want any cocaine.
Based on the evidence at trial—both from Grajales and the government—
Grajales was entitled to have the jury instructed on entrapment. Grajales met his
burden of presenting sufficient evidence that the government did not merely
provide him with an opportunity to commit the crime, but rather coerced him into
committing the crime. Accordingly, the district court erred when it failed to give
the jury an entrapment instruction, and the failure to give the instruction
constitutes reversible error.4 Bagnell, 679 F.2d at 834-35.
3
Although the government argues that Grajales did not attend the first meeting because
the evidence established that he had drunk a beer, this determination is for the jury.
4
It is important to note that the district court appears to have denied Grajales an
entrapment instruction, at least in part, because an entrapment defense conflicted with his claims
that he knew he was participating in a government sting operation. This Court has held that the
defendant is entitled to have the jury instructed on his theory of defense even if the evidence
supporting the theory is “weak, insufficient, inconsistent, or of doubtful credibility.” United
States v. Opdahl, 930 F.2d 1530, 1535 (11th Cir. 1991) (citation omitted). Thus, to the extent
that the district court refused to instruct the jury on entrapment merely because such a theory of
defense was inconsistent with his claims that he lacked the specific intent to commit the charged
15
IV.
Although we find Grajales’s arguments on entrapment dispositive, we note
that Grajales’s next argument—that the district court erred when it instructed the
jury that his honestly held belief that he was helping law enforcement also had to
be objectively reasonable—has merit.
During trial, Grajales objected to the following instruction:
During the trial I have instructed you that as a matter of fact
and law the defendant was not authorized by law enforcement to
perform the acts with which he is charged. To work with law
enforcement and engage in undercover actions requires special
approvals which the defendant did not have.
If you find, however, that the defendant had the honest and
reasonable belief that he was performing the criminal acts with which
he is charged to help law enforcement, in other words that he did not
have the specific intent to commit the crimes charged, then you would
be required to return a verdict of not guilty.
His objection was overruled. Grajales now argues that the district court erred by
including the term “reasonable” in the second paragraph of this instruction
because the first four counts of the indictment charged inchoate conspiracy and
crimes, the district court’s refusal was erroneous. Mathews, 485 U.S. at 65 (holding a defendant
may testify that he lacked intent while also arguing that, if the jury concludes otherwise, then it
should consider whether his intent was the product of government inducement).
16
attempt crimes, and therefore his honest belief that he was assisting law
enforcement precludes a finding of guilt.
Given that the indictment charged Grajales with conspiracy and attempt
crimes, we must consider the elements of each crime. In order to prove an attempt
crime, the government must show that the defendant: (1) had the specific intent or
mens rea to commit the underlying charged crimes; and (2) took actions that
constituted a substantial step toward the commission of each crime. United States
v. Yost, 479 F.3d 815, 819 (11th Cir. 2007) (per curiam). For conspiracy, the
government must prove an agreement between two or more persons to commit a
crime, the defendant’s knowledge of the conspiratorial goal, and the defendant’s
voluntary participation in furtherance of the conspiracy. United States v. Jones,
913 F.2d 1552, 1557 (11th Cir. 1990). Specific intent to join the conspiracy is
also a necessary element of proof. United States v. Prince, 883 F.2d 953, 957
(11th Cir. 1989).
Because the government must prove that the defendant possessed the mens
rea of specific criminal intent, “[s]everal defenses may apply when a defendant
claims he performed the acts for which he was charged” on behalf of the
government. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11th
Cir. 1994). These defenses include “innocent intent” and “public authority.” Id.17
Innocent intent is when the defendant lacked criminal intent because “he honestly
believed he was performing the otherwise-criminal acts in cooperation with the
government.” Id. The defense of “public authority,” on the other hand, permits
“exoneration based on the fact that [the defendant] reasonably relied on the
authority of a government official to engage him in a covert activity.” Id. (citing
United States v. Anderson, 872 F.2d 1508, 1513 (11th Cir. 1989)).
Reviewing the jury instruction in this case, we agree that the district court
erred when it instructed the jury that Grajales’s mistaken belief that he was helping
law enforcement had to be reasonable. When the district court imposed the
requirement that Grajales’s belief be reasonable, the district court confused the
standards applicable to the innocent intent and public authority defenses, even
though Grajales informed the court that he was not relying on a public authority
defense. The defense of “innocent intent” is a subjective test, requiring an
honestly held belief. Baptista-Rodriguez, 17 F.3d at 1368 n.18. Accordingly, the
district court erred when it instructed the jury on “innocent intent” because a
reasonable belief is not required.5
5
The district court relied on Anderson when formulating its jury instruction. In
Anderson, this Court quoted the district court’s jury instructions in a footnote. Id. at 1518 n.14.
Although the quoted instruction stated that, if the jury found “the Defendant was under a
reasonable belief that he had legal authority to act” then the jury had to return a verdict of not
guilty, the instructions further stated that, if the “Defendant acted in good faith, sincerely
18
V.
We similarly note that Grajales’s last argument has merit. Grajales argues
that various evidentiary rulings by the district court violated his constitutional
right to present a defense and to testify in support of that defense. Specifically, he
argues that the district court erred in excluding the following statements as
hearsay: (1) statements the CI made after Grajales asked to be introduced to law
enforcement officers; (2) the substance of the guarantees the CI made to him
during the course of the investigation; (3) the statements the CI made to convince
Grajales to involve Barrera-Avila in the scheme; and (4) statements Grajales made
to police regarding his agreement with the CI, his attempt to have the CI brought
into the interrogation room, or his attempt to tell police about his security cameras.
Federal Rule of Evidence 801(c) defines hearsay as a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence “to prove the truth of the matter asserted in the statement.” Thus, an out-
of-court statement is not hearsay if it is offered for some purpose other than to
believing himself to be exempt by the law, then he did not intentionally violate a known legal
duty.” Id. Most importantly, this Court held the instruction was not in error because the
instruction stated that the jury should acquit if it had “a reasonable doubt whether the defendants
acted in good faith under the sincere belief that their activity was exempt from the law.” Id. at
1517-18. Therefore, Anderson does not require that the defendant’s belief be reasonable to show
that he did not act willfully.
19
prove the truth of the matter asserted. United States v. Schlei, 122 F.3d 944, 981
(11th Cir. 1997) (evidence regarding witness’s testimony at her deposition was not
hearsay where testimony was offered to demonstrate defendant’s state of mind).
Furthermore, using an out-of-court statement “as circumstantial evidence of the
declarant’s knowledge of the existence of some fact, rather than as testimonial
evidence of the truth of the matter asserted, does not offend the hearsay rule.”
United States v. Parry, 649 F.2d 292, 295 (5th Cir. Unit B June 1981).6
None of Grajales’s testimony regarding out-of-court statements fell within
the hearsay definition of Rule 801(c). Grajales was attempting to testify to
statements that were not being offered for their truth. Rather, the statements the
CI allegedly made were offered to explain what Grajales believed and why he
acted as he did, and the statements he made to law enforcement were offered as
circumstantial evidence of his state of mind. Through his testimony, Grajales
sought to establish that he knew that Sanchez was an undercover officer and was
merely assisting law enforcement during the operation.
Although Grajales managed to testify to some of the statements the district
court had excluded, the district court prevented Grajales from testifying to what
6
Parry is binding on this Court pursuant to Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
20
the CI told him to compel his involvement after the CI declined to introduce him
to law enforcement. Rather, Grajales had to testify to what he believed, and
therefore Grajales explained that he believed the CI was working for law
enforcement because the CI only served one year of his ten-year sentence.
Further, Grajales was precluded from testifying to several statements he made to
law enforcement when he was arrested. With those constraints on his testimony,
he could not explain his actions or corroborate his testimony, which is relevant to
his honestly held belief that he was assisting law enforcement.
Because Grajales argued that he honestly believed that he was working for
law enforcement, the jury was entitled to consider the CI’s statements and
Grajales’s reaction to them to resolve the issue of specific intent. Thus, the district
court erred in excluding the above statements as hearsay because the statements
were not being offered for their truth and were relevant to whether Grajales
possessed the mens rea of specific criminal intent.
VI.
Given the error by the district court, as discussed above, we reverse and
remand for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
21