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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