In a federal drug case, United States v. Cortes, No. 12-50137 (9th Cir. Oct. 9, 2013), the Ninth Circuit reversed a conviction for conspiring to possess with intent to distribute more than five kilograms of cocaine, finding an error with the judge’s instruction to the jury on the defense of entrapment and holding that a sentencing entrapment claim must be tried to the jury when that claim will affect the minimum or maximum sentence.
On the drug charges sentencing-entrapment claim, the panel noted that a defendant “is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range.” Here, in this drug charge trial, that would have been the case.
The defendant was indicted on a crime based on five kilograms of cocaine, which carries a mandatory minimum sentence of ten years but if he could prove that he only had the wherewithal to procure on his own, say, two kilograms of cocaine, then he would be exposed only to a five-year mandatory minimum sentence. Therefore, this would have affected the statutory maximum sentence to which the defendant was exposed as well.
At trial the defendant requested jury instructions on both entrapment and sentencing entrapment. The district court judge declined to give the latter instruction, believing that it would be “subsumed” within any instruction on entrapment. On the entrapment defense, the judge instructed the jury along the lines of the model instruction, but modified the instruction in light of the Ninth Circuit’s decision in United States v. Spentz, 653 F.3d 815 (9th Cir. 2011).
The 9th Circuit panel held that the district court judge’s modification of the entrapment instruction overstated the holding in Spentz. Cases prior to Spentz had held that a pecuniary inducement could support an entrapment defense, so long as there was evidence of other, non-pecuniary inducements as well, such as the repeated overtures on the part of government agents, playing on the defendant’s dire financial situation, or being reimbursed for an investment related to the criminal scheme. By instructing the jury that the drugs or profit cannot per se establish inducement, the panel said, the trial judge “slightly overstated” the holding in Spentz. Instead, judges should instruct the jury that a profit motivation “cannot on its own establish” an entrapment defense.
Moreover, under Alleyne v. United States, 133 S. Ct. 2151 (2013), the facts supporting a mandatory minimum sentence are within the domain of the jury. The panel then proposed a jury instruction for sentencing-entrapment cases.