United States v Reynoso-ulloa 1977

United States Court of Appeals, Ninth Circuit.

UNITED STATES v. REYNOSO-ULLOA

548 F.2d 1329 (9th Cir. 1977)

Decided January 25th, 1977

UNITED STATES OF AMERICA,PLAINTIFF-APPELLEE, v. ALFREDOREYNOSO-ULLOA, DEFENDANT-APPELLANT. UNITED STATES OFAMERICA, PLAINTIFF-APPELLEE,v. RICHARD WAYNE MUMMERT,DEFENDANT-APPELLANT.

Nos. 76-1466 and 76-1500.

United States Court of Appeals, NinthCircuit.

January 25, 1977. *1330 [EDITORS' NOTE:THIS PAGE CONTAINS HEADNOTES.HEADNOTES ARE NOT AN OFFICIALPRODUCT OF THE COURT,THEREFORE THEY ARE NOTDISPLAYED.] *1331

Lewis A. Wenzell (argued), San Diego, Cal., fordefendant-appellant in 76-1466.

Peter J. Hughes (argued), San Diego, Cal., fordefendant-appellant in 76-1500.

Stephen G. Nelson, Asst. U.S. Atty. on the brief, TerryJ. Knoepp, U.S. Atty., Stephen G. Nelson, Asst. U.S.Atty., argued, San Diego, Cal., for plaintiff-appelleesin 76-1466 and 76-1500.

Appeal from the United States District Court for theSouthern District of California.

Before CHAMBERS and MERRILL, Circuit Judges,and JAMESON,_ District Judge.

_.

JAMESON, District Judge:

Appellants were convicted on eight counts of an in-dictment charging appellants and four co-defendantswith distribution of heroin, possession with intent todistribute, use of the telephone to facilitate distribu-tion, and conspiracy, in violation of 21 U.S.C. 841,843, 846, 952, 960 and 963. The charges arose froma conspiracy to smuggle heroin from Mexico and dis-tribute it in the United States. Both appellants raisethe issue of entrapment and the propriety of the en-trapment instructions. Appellant Mummert addition-ally contends that alleged perjury by a Government in-formant and prejudicial testimony given by a Govern-ment agent require reversal of his conviction.

[2] Statement of Facts

The critical issues on appeal center on the activitiesof Michael Sheen, a Government informant who hadpreviously worked for the Drug Enforcement Admin-istration (DEA) in Seattle, Washington. Sheen hadworked with DEA agents Flego and Zweiger in "mak-ing" a number of drug cases in the Seattle area. Fol-lowing threats on his life, in April, 1975, Sheen movedto California where he secured a job selling cars at aFord dealership owned by Mummert. Sheen becamefriendly with Mummert and through him met

Honorable William J. Jameson, SeniorUnited States District Judge for the District ofMontana, sitting by designation.

UNITED STATES v. REYNOSO-ULLOA, 548 F.2d 1329 (9th Cir. 1977)

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Reynoso-Ulloa (Reynoso) who with his brother oper-ated a car dealership in Tijuana, Mexico.

As Sheen became better acquainted with Reynoso andtheir "similar interests" became apparent, they beganto discuss the smuggling of heroin.1 About mid-May,1975, Sheen contacted agents Flego and Zweiger, in-formed them of Reynoso's involvement in heroin traf-fic, and asked them if they would be interested "in do-ing a large amount of heroin in the San Diego and Ti-juana areas". The agents indicated their interest andSheen continued his heroin discussions withReynoso.2 Sheen told Reynoso that his father was thehead of an organized crime family in Seattle whichwas seeking a new source of supply for narcotics. Ini-tial negotiations were for one hundred pounds ofheroin at a tentative price of $12,000 per pound.About August 3, Sheen called Flego to tell him thatthings were developing in the case, but that Reynosoand Mummert wanted to see if Sheen's father had thenecessary $1.2 million for the deal, and that Sheen andMummert would be flying to Seattle to view the mon-ey.

1.

2.

During the time Sheen was negotiating with Reynoso,he was also negotiating with Mummert, although notin relation to heroin. Mummert had been forced torelocate his car dealership and needed $1,200,000 forthe new facility, which he had been unable to obtain.Sheen suggested that a loan might be arrangedthrough his father, who Sheen said was on the board

of directors of *1332 a Seattle bank. Sheen told Mum-

mert that the money was "dirty" in that no taxes hadbeen paid on it. Mummert indicated that he could"launder" the money through Reynoso's connectionsin Mexico. With the view of obtaining a loan by laun-dering the dirty money, Mummert met Sheen and his"associates" in Seattle on August 7 and viewed themoney.3 After seeing the money, Mummert told Flegothat laundering it would be no problem.

3.

Shortly after their return from Seattle, Sheen andMummert met with Reynoso, when Sheen mentionedthe heroin deal in front of Mummert for the first time.Sheen told Mummert that the first priority for theuse of the money was to purchase heroin, and thatthe heroin transaction had to occur before Mummertcould get any money for his dealership. On cross-examination Sheen testified that Mummert indicatedinitial reluctance to becoming involved in the herointransaction, saying "But I don't really want to be in-volved with that mess", but that later at the samemeeting he agreed to participate.4 Sheen and Mum-mert agreed to split ten per cent of the gross profitsto be realized on the heroin transaction, which wasto be invested in Mummert's dealership. A few dayslater, around mid-August, Sheen and Mummert wereshown a sample of heroin by Reynoso in Tijuana. Thefollowing day Reynoso delivered the sample to Sheenin the presence of Mummert at Mummert's dealer-ship.

4.

Direct negotiations between the agents and appellantsbegan on August 26, when Flego called and discussedwith Reynoso the price, amounts, and delivery loca-

Mummert was not involved in these initialheroin discussions.

Sheen thereafter maintained close contactwith the agents, placing twenty-five to thirtytelephone calls to them in the four-week peri-od following the initial phone call and person-ally going to Seattle on several occasions. Onor about June 19 agent Flego began tapingmost of his conversations with Sheen. Thesetapes were played at the trial.

The record indicates that Mummert wentto Seattle to view money he thought was to befor a loan, while Reynoso thought it was to beused for the purchase of heroin.

Sheen also testified that he gave Mummert"every opportunity at that point to get out of it[the heroin transaction]." [Tr. 978].




tions for kilogram quantities of heroin. During thecall Reynoso admitted making prior heroin sales. Intelephone conversations the following day, Flego andReynoso agreed to meet in San Diego on August 28.

On August 28, Flego met Reynoso in San Diego anddiscussed with him the purchase of five to ten kilo-grams of heroin. Reynoso gave Flego another sampleof heroin. Reynoso told Flego that he could supply asmuch heroin as Flego wanted, but delivered "piece-meal" over a period of time. The meeting ended withthe understanding that Flego would contact Reynosoin a few days regarding payment and the exact amountof heroin desired. Flego talked with both Reynoso andMummert by telephone on September 2. Mummertstressed the importance of the "deal" and said it had "tohappen now". [Tr. 98-100].

On September 4, Flego and Zweiger flew to San Diegoto meet Reynoso, Mummert, and Sheen. BeforeReynoso arrived, Zweiger met Mummert and dis-cussed with him the purchase of ten kilograms ofheroin for $400,000. Mummert told Zweiger not toworry because he could trust Reynoso, who had beenin heroin trafficking for a long time and was inter-ested in doing business with the agents because theywould be steady customers.5 Upon Reynoso's arrival,he told the agents that he could deliver five kilogramsof heroin the next day for $200,000. However, prob-lems in the delivery of the heroin developed because,Reynoso said, his most trusted "mules" had gone toLas Vegas to make a delivery.

5.

The following day, after more delays in delivery, theagents returned to Seattle after indicating to Reynosotheir dissatisfaction with his operation. During thesucceeding four days Sheen was supplied with twomore heroin samples by Reynoso, who explained that

they would be using a temporary alternate source untiltheir original source returned to the border.

On September 10, Sheen and Carlos Toris, named asa co-defendant, arrived in Seattle to continue negotia-tions with the agents. *1333 Toris stated that he could

deliver multi-kilogram quantities of heroin and ad-mitted giving Reynoso the two heroin samples fur-nished to Sheen. Toris agreed to "front" a kilogram ofheroin to the agents at Mummert's dealership on Sep-tember 15.

On September 15, Flego and Zweiger met Sheen andMummert at Mummert's dealership. About an hourlater Rolando Gonzalez arrived with a kilogram ofheroin. Mummert asked Flego what he thought of theheroin.6 Flego responded that it didn't look good since"the mule had a blender in the front seat".7 Mum-mert assured Flego that it would not happen again.This meeting broke up with the understanding thatthe agents would return to Seattle, test the heroin, andthen make arrangements for payment. On September17, Toris called Flego and Zweiger and agreed on aprice of $20,000 for the kilogram of heroin to bepaid to Reynoso.

6.

7.

On the afternoon of September 17, agents Flego andZweiger returned to San Diego and again met withMummert and Sheen. After renewing their objectionto the inferior quality of the heroin, the agents wereassured by Mummert that the quality would improve.Mummert explained that an organization called"Omega", consisting of organized crime figures inMexico dealing in narcotics, was seeking to weed outsmall-time traffickers in order to maintain control,

The agents had told Reynoso that if the firsttransaction went smoothly, they wished topurchase fifty pounds of heroin a month.

No money was to be paid by the agents forthe heroin until they determined whether theheroin was of acceptable quality.

This indicated to Flego that the mule hadskimmed off some of the heroin and cut downthe remainder.




and that if Toris ever delivered another bad kilogram,the agents would have a chance to see Omega in ac-tion. That evening Mummert, Reynoso, Zweiger, andFlego continued to discuss future heroin deliveries.Reynoso assured the agents that Toris was only aninterim source and promised them a five-kilogramheroin shipment within the next five days.

On September 19, Sheen phoned Flego that Reynosoand Mummert were ready to deliver one-and-a halfkilograms of heroin. Mummert later delivered a sam-ple and told Flego: "This is a sample of the kilo anda half you're going to get. It is better than what youbought from Toris and this is what our product islike." Shortly thereafter Reynoso arrived, and he,Mummert, Sheen, Zweiger and Flego went to a locallounge to finalize the transaction. While there,Reynoso told the agents that his people had justbrought 300 pounds of morphine base from the in-terior of Mexico to a location outside Tijuana whereit would be processed at a portable lab. The meetingended with the agreement that Zweiger and the mon-ey8 would stay with Mummert at the dealership, whileFlego, Sheen, and Reynoso went to Los Angeles totake delivery of the heroin.

8.

During the drive to Los Angeles, Reynoso told Flegothat after a few more transactions, he would giveFlego a number in Los Angeles to call and as manyas five kilos would be provided on a two-day notice.Upon arriving in Los Angeles, Reynoso delivered theheroin to Flego and was arrested.

Zweiger and Mummert waited at the dealership until,subsequent to Reynoso's arrest, agents arrived and ar-rested Mummert. While waiting, Mummert askedZweiger if he had seen the sample of heroin whichMummert had delivered to Flego. Upon Zweiger'snegative response, Mummert stated: "Well, it's not asgood as some that I've seen Alfredo sell, but it's not

too bad." [Tr. 1112] Mummert also elaborated on howhe had become involved in the transaction. He ex-plained that he knew Sheen had contacts interestedin purchasing multi-kilogram quantities of heroin andthat he knew Reynoso "had been involved in the busi-ness for a long time". Mummert said that he decidedthat he could finance his new dealership from profitsfrom heroin sales if he put Sheen's customers togeth-er *1334 with Reynoso. Mummert concluded by saying

that he had therefore convinced Reynoso to sell hero-in to Sheen's people. [Tr. 1113]

Both appellants relied upon entrapment as a defense.Reynoso claimed that he participated in the transac-tion because of threats by Sheen. Mummert claimedthat he was induced to participate in the heroin salesbecause of the large amount of money Sheen hadshown him under the pretext that the money was tobe a loan for Mummert's car dealership; that he lackedany predisposition to sell heroin and did so only be-cause, after seeing the money which he needed to savehis dealership, he was unable to stop himself. Mum-mert testified that after becoming involved he contin-ued to participate because of threats Sheen had madeagainst Reynoso's friends and children.

[18] Contentions on Appeal

Reynoso contends that the court erred in instructingthe jury on entrapment and that the conduct of in-formant Sheen was so outrageous as to deny him dueprocess. Mummert contends that he was entrappedby Sheen, that elaborating instructions on entrapmentshould have been given, that Sheen gave perjurioustestimony, and that Zweiger made severely prejudicialstatements in his testimony.

[20] I. Entrapment [21] Predisposition

to Commit Offense

The Supreme Court has dealt with the defense of en-trapment in four major cases, each of which indicates

A purchase price of $75,000 had beenagreed to, the money to be paid to Mummert.




that the focal point of the defense is the predispositionof the defendant, rather than the nature of Govern-ment conduct. In the leading case of Sorrells v. United

States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932)

the Court held that the defendant, who had sold ahalf-gallon of whiskey to a prohibition agent in vio-lation of the National Prohibition Act after "repeatedand persistent solicitation" by the agent, was entitledto the defense of entrapment as a matter of statutoryconstruction. In reaching its decision, the Court notedthat "[i]t is well settled that the fact that officers oremployees of the Government merely afford oppor-tunities or facilities for the commission of the offensedoes not defeat the prosecution". 287 U.S. at 441, 53S.Ct. at 212. But while "[a]rtifice and stratagem maybe employed to catch those engaged in criminal en-terprises", 287 U.S. at 441, 53 S.Ct. at 212, the Gov-ernment may not "implant in the mind of an innocentperson the disposition to commit the alleged offenseand induce its commission in order that they mayprosecute". 287 U.S. at 442, 53 S.Ct. at 212. The con-trolling question, the Court said, is "whether the de-fendant is a person otherwise innocent whom thegovernment is seeking to punish for an alleged offensewhich is the product of the creative activity of its ownofficials". 287 U.S. at 451, 53 S.Ct. at 216.

Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2

L.Ed.2d 848 (1958), involved the sale of narcotics toa Government agent following a number of requestsby the agent predicated upon his presumed sufferingfrom a lack of narcotics. The issue was "whether theinformer had convinced an otherwise unwilling per-son to commit a criminal act or whether petitionerwas already predisposed to commit the act and ex-hibited only the natural hesitancy of one acquaintedwith the narcotics trade". 356 U.S. at 371, 78 S.Ct. at820. Noting that "a line must be drawn between thetrap for the unwary innocent and the trap for the un-wary criminal", the Court found that the defendanthad been entrapped as a matter of law, based on the"undisputed testimony" of the prosecution's own wit-nesses. 356 U.S. at 373, 78 S.Ct. 819.

In an extensive exposition on the law of entrapment,the Court in United States v. Russell, 411 U.S. 423, 429,

93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) upheld the prin-ciples enunciated in Sorrells and Sherman and reaf-

firmed that the crucial element in the defense of en-trapment was the defendant's predisposition to com-mit the crime. The Court stated that "it is only whenthe Government's deception actually implants thecriminal design in the mind of the defendant *1335

that the defense of entrapment comes into play." 411U.S. at 436, 93 S.Ct. at 1645. The most recent state-ment by the Supreme Court on entrapment came inHampton v. United States, 425 U.S. 484, 96 S.Ct. 1646,

48 L.Ed.2d 113 (1976). The defendant was convictedon two counts of distributing heroin which he con-tended had been supplied to him by a Governmentinformant. The Court, in holding that the defendanthad not been subjected to police conduct so outra-geous that due process would bar conviction, see Unit-

ed States v. Russell, supra at 431-432, 93 S.Ct. 1637, reit-

erated that the defense of entrapment was predicatedon the defendant's lack of predisposition. 425 U.S. at490, 96 S.Ct. 1646.

While it is clear that the essential element of an en-trapment defense is lack of predisposition to commita criminal act, the precise meaning of "predisposition"is not so apparent. We find the guidelines in Sorrells

and Sherman.

In Sorrells the defendant was a man of reputed good

character in the community. While some Govern-ment witnesses testified that he had a reputation as arum-runner, there was no evidence that he had everpossessed or sold any intoxicating liquor prior to thetransaction for which he was convicted. A prohibitionagent came to defendant's home posing as a touristwho had been in the same army division as defendantduring World War I. A conversation ensued amongthe agent, defendant and several of defendant's friendsabout their war experiences, during which the agentasked the defendant if he could get the agent someliquor. The defendant twice refused these requests,



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stating, as one witness testified, that he "did not foolwith liquor", but finally acceded upon the third re-quest by the agent and brought him a half-gallon ofwhiskey after an interval of "between twenty and thir-ty minutes". The agent testified that he was "the firstand only person among those present at the time whosaid anything about securing some liquor" and that hispurpose was to prosecute the defendant for procuringand selling it. On these facts the Supreme Court con-cluded:

"It is clear that the evidence was sufficient towarrant a finding that the act for whichdefendant was prosecuted was instigated by theprohibition agent, that it was the creature ofhis purpose, that defendant had no previousdisposition to commit it but was anindustrious, law-abiding citizen, and that theagent lured defendant, otherwise innocent, toits commission by repeated and persistentsolicitation in which he succeeded by takingadvantage of the sentiment aroused byreminiscences of their experiences ascompanions in arms in the World War." 287U.S. at 441, 53 S.Ct. at 212.

Sherman involved a defendant convicted on three

counts of selling narcotics to a Government informantwhom he had met at a doctor's office where both ap-parently were being treated for drug addiction. Afterseveral meetings and conversations about their mutu-al problems in overcoming drug addiction, the infor-mant asked the defendant if he knew a good source ofnarcotics because, the informant stated, he was not re-sponding to treatment. Defendant tried to avoid theissue but finally acquiesced after a number of requestsby the informant, predicated on his presumed suffer-ing. Defendant thereafter obtained narcotics severaltimes and shared them with the informant. Each timedefendant bore the cost of his share of the drugs plusthe expenses in obtaining them. The Supreme Courtheld that the defendant had been entrapped as a mat-ter of law by the informant's resort to sympathy to in-duce the defendant to sell narcotics. The Court stated:

"One request was not enough, for Kalchinian[the informant] tells us that additional oneswere necessary to overcome, first, petitioner'srefusal, then his evasiveness, and then hishesitancy in order to achieve capitulation.Kalchinian not only procured a source ofnarcotics but apparently also inducedpetitioner to return to the habit." 356 U.S. at373, 78 S.Ct. at 821.

*1336

Furthermore, the Court found no evidence aside froma record of defendant's past convictions, to supportthe Government's case: "There is no evidence that pe-titioner himself was in the trade. When his apartmentwas searched after arrest, no narcotics were found.There is no significant evidence that petitioner evenmade a profit on any sale to Kalchinian." 356 U.S. at375, 78 S.Ct. at 822.

Sorrells and Sherman reveal a number of factors which

must be considered in determining whether the de-fendant was a person "otherwise innocent" in whomthe Government implanted the criminal design.Among these are the character or reputation of thedefendant, including any prior criminal record;9

whether the suggestion of the criminal activity wasinitially made by the Government;10 whether the de-fendant was engaged in the criminal activity for profit;whether the defendant evidenced reluctance to com-mit the offense, overcome only by repeated Govern-ment inducement or persuasion; and the nature of theinducement or persuasion supplied by the Govern-ment. While none of the factors alone indicates eitherthe presence or absence of predisposition, the mostimportant factor, as revealed by Supreme Court andother decisions, is whether the defendant evidencedreluctance to engage in criminal activity which wasovercome by repeated Government inducement.11

9. It is not necessary, however, to show thatthe accused "had previously been convicted of,or had previously committed, acts similar to



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10.

11.

[30] Mummert's Defense

The evidence is sufficient to establish Mummert's pre-disposition to commit the offenses, for which he wasconvicted, when viewed in a light most favorable tothe Government. Cf. Glasser v. United States, 315 U.S.

60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Agent Zweigertestified that in his conversation with Mummert onSeptember 19, Mummert told him that he becameinvolved in the heroin transaction when he realizedthat he could finance his dealership with profits fromheroin sales if he put Sheen's customers together withReynoso. Mummert also told Zweiger that the wasthe person who convinced Reynoso to sell heroin toSheen's people. This testimony was uncontroverted,even by Mummert.

In other conversations with Sheen and the agents,Mummert manifested his knowledge of smugglingheroin across the border and the quality of heroinReynoso was capable of delivering. On one occasion,Mummert told the agents that if Toris ever again de-

livered inferior heroin, he would be "wasted". He dis-cussed a previous heroin transaction in which a"mule" who had been "skimming" had been taken careof. While these statements by Mummert do not estab-lish his involvement in previous heroin transactions,they do lead to that inference.12

12.

The evidence most damaging to Mummert's entrap-ment defense, however, is his own testimony. He ad-mitted that he became involved in the transaction tofinance his dealership. He did not deny that he hadconvinced Reynoso to sell the heroin, nor did he testi-fy that he had shown any reluctance or refusal to con-tinue in the heroin *1337 scheme.13 He testified that

at one point, when Reynoso was reluctant to proceedwith the heroin sale, he talked Reynoso "back into do-ing it again".14 Finally, Mummert testified that he wasunconcerned about his involvement with heroin: ". .They had heroin coming in before they met me. Andthey're going to get it someplace, so why should I beconcerned." [Tr. 1727]15

13."Q At that point you were in alittle deeper; isn't that correct?

"A Oh, yes.

"Q Did you tell them, `Just stop, Iwant to walk away from this'?

"A Well, I was told by MichaelSheen that the million twohundred thousand was in thebank with the 400,000.

"Q So you were thinking aboutyour dealership.

"A You bet.

those for which he was being tried. This argu-ment is specious, inasmuch as one may be pre-disposed to commit his first crime as much as,if not more than, a chronic offender who, the-oretically, should be more fearful of the con-sequences." United States v. Martinez, 488 F.2d

1088, 1089 (9 Cir. 1973).

However, this fact alone in no way indi-cates entrapment, since mere solicitation isnot enough to show entrapment. See Lopez v.

United States, 373 U.S. 427, 83 S.Ct. 1381, 10

L.Ed.2d 462 (1963); United States v. DeVore, 423

F.2d 1069 (4 Cir. 1970), cert. denied, 402 U.S.

950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971).

We have found no case in which the de-fense of entrapment (as opposed to cases deal-ing with due process principles) was successfulwhere the defendant had not indicated reluc-tance to engage in illegal activity.

Mummert also told agents Flego andZweiger that he was "well-connected" withorganized crime in the El Cajon area. Pointingto several individuals, Mummert said:"They're your biggest competition in herointrafficking in San Diego."



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"Q And you didn't stop thetransaction at that point.

"A No, sir." [Tr. 1738]

14."Q And then the transactioncontinued to go forward; isn'tthat correct?

"A Yes, sir.

"Q And the 5th there was anothermeeting, right?

"A Yes, sir.

"Q Did you continue to discusshow important this herointransaction was? Isn't thatcorrect?

"A Absolutely. That was the onlyway I was going to get mydealership.

"Q The wraps were off it insofaras you were concerned, weren'tthey? I mean, you knew exactlywhat was involved; isn't thatcorrect?

"A Yes. And I think that on the5th was the day that I had to godown and talk Alfredo back intodoing it again." [Tr. 1739]

15.

"Q You weren't troubled a bitabout the idea of heroin beingconnected with this transaction?

"A It never entered my mind,because they were like I saidbefore, they were getting itbefore they met me.

"Q At that point you had noconscience problems; isn't thatcorrect?

"A Well, like I repeat again. Itwasn't a case of conscience, it wasa case that they had the moneybefore they met me, they were inthe heroin business before theymet me, I wasn't aware of it, but this is the way that the thingwas sprung on me." [Tr. 1740]

A jury could reasonably conclude that Mummert hadthe necessary predisposition to sell heroin and had notbeen entrapped. The testimony established that Mum-mert showed little, if any, real resistance to participa-tion in the heroin transaction when it was revealedto him,16 nor was he concerned about the illegal na-ture of that activity. In fact, rather than being a reluc-tant participant in the transaction, the evidence indi-cated that Mummert at times was the moving forcebehind it. Mummert convinced Reynoso to sell theheroin, persuaded Reynoso not to back out, and evenmade physical delivery of heroin samples. On severaloccasions Mummert urged the agents not to blow the"sweet deal". These actions and statements are not in-dicative of a person "otherwise innocent", but insteadreveal an "unwary criminal" anxious to successfullyconclude his criminal enterprise.

16.

The nature of the inducement confirms this conclu-sion. Mummert was seeking a large sum of money forhis dealership. The fact that he was willing to "laun-der" the untaxed money before he was told of the

Mummert testified on this point severaltimes:

The only evidence of reluctance wasSheen's testimony that when Mummert firstlearned that the money for his dealership wasto come from heroin sales he said: "But I don'treally want to be involved with that mess."This statement was not even confirmed byMummert. In any event, he showed no furtherreluctance and became an active participant inthe conspiracy.




heroin scheme,17 together with the other *1338 evi-

dence, leads to the inference that Mummert was will-ing to do almost anything to obtain the money. Thedefense of entrapment, while protecting the innocentfrom Government creation of crime, is unavailableto a defendant who, motivated by greed and uncon-cerned about breaking the law, readily accepts a pro-pitious opportunity to commit an offense. Althoughthe Government's use of the $1.2 million does indicatea degree of inducement to the commission of the of-fense, we find sufficient evidence of Mummert's pre-disposition to preclude entrapment as a matter of law.

17."Q Yet you were concerned aboutacquiring this untaxed money tobuild the dealership.

"A I wasn't concerned about it.They had it a long time beforethey met me.

"Q So long as money is money, ithas no odor, as the Swiss say; isthat correct?

"A No, I was aware that the taxeshadn't been paid on the money.

"Q But that didn't affect you, ofcourse.

"A No, sir.

"Q As far as you were concerned,it was money, and money was tobe used.

"A Yes, sir. And it wasn't myresponsibility to pay taxes." [Tr.1726-1727]

Mummert additionally argues that because Sheen wasworking on a contingent fee basis,18 he was entrappedas a matter of law. He relies upon Williamson v. United

States, 311 F.2d 441 (5 Cir. 1962), cert. denied, 381 U.S.

950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965) in whichthe Fifth Circuit reversed the convictions of two de-

fendants for possession of whiskey in unstamped con-tainers because the informant with whom they haddealt was being paid on a contingent fee basis.Williamson is factually distinguishable,19 and we de-

cline, in any case, to follow its rationale in light ofRussell and Hampton, which indicate that predisposi-

tion of the defendant, rather than the conduct of theGovernment, is to be the focal point of an entrapmentdefense. Having found Mummert to be predisposed,there can be no entrapment. See United States v. Russell,

supra, at 436, 93 S.Ct. 1637.

18.

19.

Furthermore, "[t]o sustain [appellant's] contentionhere would run directly contrary to [the] statement inRussell that the defense of entrapment is not intended

`to give the federal judiciary a "chancellor's foot" vetoover law enforcement practices of which it did not ap-prove.'" Hampton v. United States, supra at 490, 96 S.Ct.

at 1649 citing United States v. Russell, supra at 435, 93

S.Ct. 1637.20 We conclude that Mummert was not en-trapped as a matter of law merely because the infor-mant was to be paid on a contingent fee basis.

20.

Sheen's fee was to depend on the size ofthe transaction and number of participants.He was to be paid a specific amount for eachpound of heroin seized and for each "body" in-volved. At the time of appellants' arrest, thatamount had not yet been determined.

In Williamson, the defendant was a "speci-

fied suspect" and the informant was employedto obtain evidence against him. Here Sheenlearned of Reynoso's involvement in the hero-in traffic, reported to the DEA agents, andagreed to work on the case. As in the past hewould be paid a contingent fee. We are notunmindful that few would engage in a danger-ous enterprise of this nature without assuran-ce of substantial remuneration.

Mr. Justice Powell said in a footnote to hisconcurrence in Hampton: ". . . One cannot easi-



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[38] II. Due Process

Reynoso contends that due process requires the rever-sal of his conviction because of profane threats madeto him by Sheen.21 The threats were made on Sep-tember 6, 1975, when Reynoso allegedly was havingdoubts about continuing the transaction.22 Appellantrelies upon dictum in Russell where the Court noted

that it might "some day be presented with a situationin which *1339 the conduct of law enforcement agents

is so outrageous that due process principles would ab-solutely bar the government from involving judicialprocesses to obtain a conviction . . . ." 411 U.S. at431-432, 93 S.Ct. at 1643.

21.

". . . I told Alfredo, I said, youknow, you mother fucker, theyare making it, I'm swinging rightnow. I mean, you know, thesepeople are pissed. My old manain't too happy with this wholeprogram and I told him, I said ifI'm gonna get my ass in this muchshit, I'm gonna do youcocksuckin fuckin Mexicanfriends, and he said okay, I don'tblame you, so he said I'll put youright into it. So he did." [R.T.320]

Testimony showed that the phrase"do you" means to kill someone.

Reynoso thus contends that Sheenthreatened to kill his friendsunless he carried out the heroinsale.

22.

Clearly, Reynoso cannot rely on the defense of entrap-ment since he does not challenge the implicit findingof his predisposition, of which there is overwhelm-ing evidence. Neither do we find Sheen's conduct, al-though by no means commendable, to have been sooutrageous that principles of due process require re-versal of his conviction. The threat must be viewed inthe context of the vulgarity and "puffing" engaged inby all participants in the transaction. It is an isolatedincident in over two months of negotiations amongSheen, the agents, and appellants during which nu-merous false claims and veiled threats were made.23

This court may judicially notice the fact that traffick-ing in drugs is a sordid business, and often involvespersons of the lowest caliber. When viewed in thiscontext, Sheen's threat fails to rise to the level of con-duct violative of "fundamental fairness, shocking tothe universal sense of justice". Kinsella v. United States

ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4

L.Ed.2d 268 (1960).

23.

[41] III. Instructions

The court instructed the jury that the Governmentbore the burden of proving beyond a reasonable doubt

ly exaggerate the problems confronted by lawenforcement authorities in dealing effectivelywith an expanding narcotics traffic, [citationsomitted] which is one of the major contribut-ing causes of escalating crime in our cities. [ci-tations omitted] Enforcement officials there-fore must be allowed flexibility adequate tocounter effectively such criminal activity." 425U.S. at 495-496, n. 7, 96 S.Ct. at 1652.

The threat, in Sheen's own words, was:

This argument is raised by Reynoso withrespect to all counts with which he wascharged, except Count II (delivery of one gramof heroin on August 28, 1975) which occurredbefore the threat.

The jury had a full opportunity to considerthe statement in view of all the surroundingcircumstances. On cross-examination Sheenwas interrogated at length with respect to thisstatement, and Reynoso's counsel made fre-quent reference to it in his closing argument.



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that appellants were not entrapped and defined en-trapment as follows:

"Where an otherwise innocent person, withno previous intent or purpose to violate thenarcotics laws, is induced or persuaded by lawenforcement officers or their agents to commita crime, he is the victim of entrapment and thelaw, as a matter of policy, forbids his convictionin such a case.

"On the other hand, where a person alreadyhas the predisposition, that is, the readiness andwillingness to break the narcotics laws, themere fact that Government agents providedwhat appears to be a favorable opportunity, isnot entrapment.

. . . . .

"If, then, the jury should find beyond areasonable doubt from the evidence in this casethat before anything at all occurred respectingthe alleged offenses involved in this case, thedefendant was ready and willing to commit thecrimes as charged in the Indictment, wheneveropportunity was afforded, and theGovernment officers or their agents did nomore than offer the opportunity, then the juryshould find that the defendant was not a victimof entrapment.

"On the other hand, if the evidence in the caseshould leave you with a reasonable doubtwhether the defendant had the previous intentor purpose to commit any offense of thecharacter here charged, and did so only becausehe was induced or persuaded by some officer oragent of the Government, then it is your dutyto acquit him.

"The terms `inducement or persuasion,' in thelaw of entrapment, may include the promise ofmoney or other economic benefit.

"Law enforcement officers are entitled toinfiltrate groups of persons whom they knowor suspect to be involved in criminal activity.

There is nothing unlawful or improper indoing that. The law, however, does not permitGovernment agents to originate or implant thecriminal design in a defendant's mind."

Appellants argue that the court should have giventheir proposed elaborating instructions on entrap-ment and that refusal to do so was reversible error.Reynoso's proposed instructions stated:

"If looking to the totality of the circumstancesof this case, you find that the conduct ofgovernment agents or those acting on theirbehalf was so outrageous *1340 as to be

fundamentally unfair and shocking to theuniversal sense of justice, you must acquit thedefendants and need not consider the questionof predisposition."

This instruction does not state the law of entrapmentas it presently exists and was properly refused. SeeHampton v. United States, supra.

Mummert submitted elaborating instructions on (1)economic inducement, (2) "ready and willing" pre-disposition, (3) caution against making a moral judg-ment, (4) totality of the circumstances and (5) a "butfor" instruction, all of which were properly refused.The instructions offered by Mummert were eitherrepetitious or gave inordinate emphasis to the induce-ment element of entrapment. The instructions givenby the court properly instructed the jury on the el-ements of entrapment necessary to decide the case.Hampton v. United States, supra; United States v. Russell,

supra; United States v. Griffin, 434 F.2d 978, 981-982 (9

Cir. 1970),24 cert. denied, 402 U.S. 995, 91 S.Ct. 2170,

29 L.Ed.2d 160, reh. denied, 404 U.S. 877, 92 S.Ct. 27,

30 L.Ed.2d 124 (1971).

24. The court's instruction is nearly verbatimthat approved in Griffin.



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[46] IV. Perjury

Sheen testified that prior to the transaction involvedin this case, he made trips to Charlotte, North Car-olina and Daytona, Florida with Mummert to attendstock car races, and that during these trips drugs andmoney, in which Reynoso was involved, were ex-changed. The trip to Charlotte was admitted, butSheen's testimony with respect to the drug transac-tions was denied by Mummert and several other wit-nesses. Sheen testified that Reynoso also made the tripto Daytona. Mummert and Reynoso, supported by thetestimony of other witnesses, denied that this trip wasever made. Mummert now contends that Sheen's tes-timony was perjury which was severely prejudicial.

"Before a sentence may be vacated on the ground ofperjured testimony, the movant must show that thetestimony was perjured and that the prosecuting offi-cials knew at the time such testimony was used that itwas perjured." Marcella v. United States, 344 F.2d 876,

880 (9 Cir. 1965), cert. denied, 382 U.S. 1016, 86 S.Ct.

630, 15 L.Ed.2d 531 (1966). Although the record in-dicates that Sheen's testimony was perjured, there isno evidence that the Government knowingly used thefalse testimony.

Moreover, this is not a case where the defendantslearned subsequent to trial that perjured testimonyhad been offered by the prosecution. Here appellants'counsel knew well in advance of the trial what Sheenhad told the agents and what his testimony would bewith respect to the alleged trips. Appellants were fullyprepared to rebut Sheen's testimony and thereby im-peach his credibility. The alleged perjury was fully ex-plored at the trial.

Under the circumstances we find no prejudice. It con-cerned events which occurred before any participationby Mummert in the heroin transaction. Nor wasMummert involved in the apparently fictional drugtransactions which were the subject of the false testi-mony. Sheen's testimony was, if anything, helpful to

Mummert, since it tended to discredit Sheen and tobolster Mummert's entrapment defense. We find noreversible error.

[51] V. Prejudicial Statement

Finally, Mummert contends that a statement made byagent Zweiger during direct examination was so prej-udicial as to require a mistrial. Zweiger testified thatMummert, in one of their conversations, stated thathe was "well-connected in the El Cajon area and in theLos Angeles area with organized crime figures". Thecourt, prior to this testimony, had instructed Govern-ment counsel to go over prospective testimony withits witnesses and avoid areas of possible prejudice.Government counsel stated that he had complied withthe court's order, but that Zweiger's statement came asa surprise.

Rather than objecting to the testimony and requestinga cautionary instruction, counsel for Mummert waitedand later moved for a mistrial. In denying the motion,*1341 the court said: ". . . it is material that tends to be

prejudicial. On the other hand, I think in the contextof what is now before the Court, the statement is pro-bative. I don't think it was planned to come in, it didcome in, and I deny the motion for mistrial".

Mummert contends that this evidence referred to pri-or conduct of Mummert which inadmissibly tendedto show criminal disposition or character. See Parker

v. United States, 400 F.2d 248, 252 (9 Cir. 1968), cert.

denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789

(1969). This argument overlooks the fact that Mum-mert was relying on the defense of entrapment, whichexposes a defendant to a "searching inquiry into hisown conduct and predisposition as bearing upon thatissue. If in consequence he [the defendant] suffers adisadvantage, he has brought it upon himself by rea-son of the nature of the defense". Sorrells v. United

States, supra, 287 U.S. at 451-452, 53 S.Ct. at 216.

Zweiger's testimony bore on the issue of Mummert's



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predisposition. Any prejudice inherent in the state-ment was outweighed by its relevance to that issue.

In any case, Zweiger's statement was not so prejudicialas to require a mistrial. At the time of the statement,there had been testimony that Mummert had told theagents about the functioning of Omega, a group ofMexican organized crime figures dealing in narcotics.The evidence also revealed that on one occasionMummert, in the presence of Flego and Zweiger, hadpointed to several San Diego organized crime figuresand said: "They're your biggest competition in herointrafficking in San Diego." At the time of Zweiger'stestimony there was thus already evidence indicatingMummert's familiarity with organized crime. Fur-thermore, the testimony came as a surprise, and de-fense counsel failed to immediately object or to re-quest cautionary instructions. In these circumstanceswe find that the testimony was not highly prejudicial.The court's refusal to declare a mistrial was a properexercise of its discretion. See United States v. Bergman,

354 F.2d 931, 935 (2 Cir. 1966).

[56] Conclusion

We conclude that (1) both appellants were predis-posed to the commission of the offenses for whichthey were convicted and were not entrapped; (2) theconduct of informant Sheen was not so outrageousas to deny Reynoso due process of law; (3) the courtproperly instructed the jury on the law of entrapment;and (4) neither Sheen's allegedly perjurious testimony,nor Zweiger's voluntary testimony was so prejudicialas to require reversal. Accordingly, appellants' convic-tions are affirmed.



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UNITED STATES v. REYNOSO-ULLOA548 F.2d 1329 (9th Cir. 1977)[2] Statement of Facts[18] Contentions on Appeal[20] I. Entrapment [21] Predisposition to Commit Offense[30] Mummert's Defense[38] II. Due Process[41] III. Instructions. . . . .[46] IV. Perjury[51] V. Prejudicial Statement[56] Conclusion

Documents

United States v Reynoso-ulloa 1977