United States v. Raymond Gentile ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10254
Plaintiff-Appellee, D.C. No.
1:12-cr-00360-DAD-BAM-1
v.
RAYMOND ARTHUR GENTILE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted July 19, 2019**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN,*** District
Judge.
Defendant-Appellant Raymond Gentile appeals multiple aspects of his
prosecution following a jury trial in which he was convicted on three counts of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
violating federal marijuana laws and two counts of making false statements on
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) firearms
transaction forms. We affirm.
1. The district court did not err in denying Gentile’s motions for discovery and
to dismiss for selective prosecution, in which Gentile asserted a theory of
“geographic disparity.” “To establish a claim of selective prosecution, a defendant
must show both discriminatory effect and discriminatory purpose.” United States
v. Sellers, 906 F.3d 848, 852 (9th Cir. 2018). To warrant discovery for such a
claim, a defendant must present at least “some evidence” that constitutes a
“credible showing of different treatment of similarly situated persons.” United
States v. Armstrong, 517 U.S. 456, 470 (1996).
Even if we assume that selective prosecution based on “geographic
disparity” could trigger constitutional concerns, Gentile has not produced sufficient
evidence in support of a cogent disparity theory to meet a discovery standard that
is “nearly as rigorous as that for proving the [selective prosecution] claim itself.”
Sellers, 906 F.3d at 852. Gentile has not provided any statistics showing that
similarly situated defendants are prosecuted in California but not Colorado, let
alone evidence that any differential treatment is explained by bias or some other
impermissible purpose, so he was not entitled to discovery, or relief, for a selective
prosecution claim.
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2. Gentile next contends that the district court erred with regard to the jury
instructions at trial in two ways: first, by denying his requested entrapment-by-
estoppel instruction, and second, by failing to sua sponte instruct the jury on an
apparent public authority defense as to the false statement counts. We review for
abuse of discretion the district court’s decision to give or not give a jury
instruction, viewing the evidence in the light most favorable to the party requesting
the instruction. United States v. Heredia, 483 F.3d 913, 921-22 (9th Cir. 2007) (en
banc). We reject Gentile’s arguments.
First, to warrant an entrapment-by-estoppel instruction, Gentile needed to
show at least some evidence that: “(1) an authorized government official,
empowered to render the claimed erroneous advice, (2) who has been made aware
of all the relevant historical facts, (3) affirmatively told [the defendant] the
proscribed conduct was permissible, (4) that [the defendant] relied on the false
information, and (5) that [the] reliance was reasonable.” United States v. Lynch,
903 F.3d 1061, 1076 (9th Cir. 2018) (alterations in original) (quoting United States
v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010)). The district court did not abuse its
discretion when it held that Gentile lacked sufficient evidence on at least the third
and fifth elements. At best, the Second Amendment Sports employee’s statements
that Gentile could put the Chinta Drive address on his driver’s license and vehicle
registration under the “current address” section of the ATF firearm application,
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despite the fact Gentile no longer lived there, were an attempt to assist Gentile in
filling out the application, not an affirmative indication that writing the former
address was legally permissible. The employee’s comment that Gentile could
submit the application and “go from there” would not have reassured a “person
sincerely desirous of obeying the law” that his actions were certainly lawful, so
any reliance on the comment was unreasonable. United States v. Ramirez-
Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (quoting United States v. Lansing,
424 F.2d 225, 227 (9th Cir. 1970)).
Second, the public authority defense requires the defendant to show that he
“reasonably relied on the authority of a government official to engage him in a
covert activity.” United States v. Burrows, 36 F.3d 875, 881 (9th Cir. 1994)
(quoting United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir.
1994)). Here, Gentile at best presented evidence that the employees tried to help
him fill out the current address portion of the ATF forms. He offered no evidence
that the employees asked him to do so on their behalf from positions as
government agents. Gentile has not pointed to any case where the relationship
between the government agent and the defendant was so weak.
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Thus, we conclude that the district court did not abuse its discretion in
failing to instruct the jury on entrapment-by-estoppel or public authority defenses.1
3. Finally, Gentile argues that the district court erred in denying his motion to
enjoin the government from spending funds to prosecute the marijuana-related
offenses under our decision in United States v. McIntosh, 833 F.3d 1163 (9th Cir.
2016). This argument also fails.
Gentile’s procedural attacks on the district court’s denial of McIntosh relief
are foreclosed by United States v. Evans, --- F.3d ---, No. 17-30185, 2019 WL
2943492 (9th Cir. July 9, 2019). There, we clarified that, when a criminal
defendant seeks to enforce the Congressional appropriations rider prohibiting the
use of Department of Justice funds to prevent states from implementing their state
medical marijuana laws, the defendant is seeking injunctive relief. As with any
request for an injunction, the criminal defendant seeking such an injunction bears
the burden of proving compliance by preponderance of the evidence. Id. at *3.
We also explained that, to obtain such an injunction, the defendant must
demonstrate that he has “fully complied with the laws that allow the use,
distribution, possession, or cultivation of medical marijuana, not whether he would
1
Because the district court did not err in failing to sua sponte instruct the
jury on a public authority defense, we do not need to consider whether the
Government forfeited plain error review of the issue by failing to raise that
standard on appeal. See United States v. Murguia-Rodriguez, 815 F.3d 566, 573-
74 (9th Cir. 2016).
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be entitled to some procedure if the state, rather than the federal government, were
prosecuting him in its courts.” Id. To the extent McIntosh left any doubt, Evans
refutes Gentile’s argument that a showing of substantial, rather than strict,
compliance with California law is sufficient for McIntosh relief, even if such a
showing would immunize him from state prosecution, see People v. Hochanadel,
98 Cal. Rptr. 3d 347, 363-64 (Ct. App. 2009).
The district court’s conclusion that Gentile failed to demonstrate strict
compliance was not clearly erroneous. Evans, 2019 WL 2943492, at *4. Among
other examples of non-compliance, the district court did not clearly err in
concluding that Gentile’s marijuana collective, ANP, operated “for profit” in
violation of California law, see Cal. Health & Safety Code § 11362.765(a), where
ANP brought in at least $20,000 per month in revenue exceeding ANP’s expenses.
Accordingly, the district court did not abuse its discretion in denying Gentile
injunctive relief under McIntosh. See eBay Inc. v. MercExchange, LLC, 547 U.S.
388, 391 (2006) (stating that the decision to grant or deny injunctive relief is
reviewable on appeal for abuse of discretion).2
2
Gentile’s entire state-law-based defense was that he was lawfully operating
ANP, a premise that he failed to prove. Given that his asserted state-law-based
defense for all three marijuana-related counts failed, Gentile cannot explain how
the absence of a count-by-count analysis prejudiced him. See United States v.
Kleinman, 880 F.3d 1020, 1028-30 (9th Cir. 2017). Remand on that basis
therefore is not required.
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AFFIRMED.
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