United States v. Jose Camargo-Alejo ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 21 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 17-50352
UNITED STATES OF AMERICA,
D.C. No. 3:17-cr-1369-H-1
Plaintiff-Appellee,
v. MEMORANDUM*
JOSE CAMARGO-ALEJO, aka JESSICA
CAMARGO-ALEJO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 4, 2018
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
1
Jessica Camargo-Alejo1 appeals her conviction under 18 U.S.C. § 111(a)(1)
for assaulting a Border Patrol agent while she was in custody at an immigration
detention center. She argues that the district court erroneously precluded her from
raising an entrapment defense at trial in violation of her constitutional right to
present a complete defense.
The record shows that the district court did not bar the entrapment defense
but instead declined to instruct the jury on entrapment due to insufficient evidence.
At a pretrial hearing on motions in limine, the court expressly stated that it would
not preclude the defense. And when it next ruled on the entrapment issue after the
government’s case-in-chief, the court found that there was insufficient evidence
presented at trial to permit a finding that the government induced the crime and
declined the entrapment instruction on that basis.
This Court reviews the refusal to instruct the jury on entrapment due to
insufficient evidence for abuse of discretion. United States v. Spentz, 653 F.3d
815, 818 (9th Cir. 2011). Camargo-Alejo argues that the district court abused its
discretion because it erroneously required her to introduce evidence that the
government induced the crime purposefully or intentionally. We need not address
this issue, however, because there was insufficient evidence presented at trial to
1
This disposition refers to the defendant by her preferred name.
2
support the other element of the entrapment defense—Camargo-Alejo’s lack of
predisposition to commit the crime—thus rendering any error harmless. See
United States v. Gurolla, 333 F.3d 944, 957 (9th Cir. 2003) (applying harmless-
error review to the refusal to give an entrapment instruction due to insufficient
evidence); see also United States v. Burt, 143 F.3d 1215, 1218 (9th Cir. 1998)
(noting that a defendant is entitled to an entrapment instruction only if she presents
evidence of both inducement and lack of predisposition). At trial, the only
evidence putatively bearing on her lack of predisposition concerned her conduct
immediately before and during the altercation with the Border Patrol agent. But
neither the surveillance footage of the incident nor the testimony about Camargo-
Alejo’s conduct indicates any reluctance to commit the crime or supports any other
factor that would tend to show lack of predisposition. See United States v.
Marbella, 73 F.3d 1508, 1512 (9th Cir. 1996) (listing five factors for determining
whether evidence of lack of predisposition is sufficient to warrant an entrapment
instruction). Without evidence from which a reasonable jury could find lack of
predisposition, any alleged error in the district court’s statement of the law
regarding inducement was harmless.
AFFIRMED.
3