United States v. Jennifer Dixon , 572 F. App'x 553 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30112
Plaintiff - Appellee, D.C. No. 1:12-cr-00139-EJL-2
v.
MEMORANDUM*
JENNIFER DIXON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted May 13, 2014**
Portland, Oregon
Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.
Appellant Jennifer Dixon reserved the right to this appeal pursuant to a
conditional plea agreement. Dixon challenges the district court’s pretrial
ruling that precluded her from asserting entrapment by estoppel as a defense at
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s decision to exclude evidence of
an entrapment by estoppel defense. See United States v. Brebner, 951 F.2d 1017,
1024 (9th Cir. 1991). Dixon argues that she was entitled to assert the defense
because Boise police officers – who were investigating separate, unrelated crimes –
failed to inform her that selling drug paraphernalia was illegal under federal law.
Government inaction, however, is insufficient to establish entrapment by estoppel.
See United States v. Woodley, 9 F.3d 774, 779 (9th Cir. 1993).
Dixon argues that the officers’ silence was an adoptive admission under
Federal Rule of Evidence 801(d)(2)(B). However, the district court did not
exclude the evidence because it was hearsay; it was excluded because the evidence
related only to Dixon’s entrapment by estoppel defense. The officers’ mere silence
did not constitute an affirmative statement that selling the paraphernalia was
permissible. See United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir.
2000).
AFFIRMED