USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 94-2047

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS M. ACOSTA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich and Bownes, Senior Circuit Judges.

_____________________

____________________

Thomas G. Briody, by Appointment of the Court, for appellant.

________________
Michael P. Iannotti,
___________________

Assistant United States Attorney, with

Sheldon Whitehouse, United

___________________

States

Attorney, was

United States.

____________________

on

brief for

October 2, 1995
____________________

BOUDIN, Circuit Judge.

_____________

Jesus Acosta was indicted on two

counts of possession of a

firearm by a convicted felon.

U.S.C.

convicted Acosta on one

922(g).

A jury

18

count and

acquitted on the other, and Acosta was then given a mandatory

minimum sentence

Career

raising

of 15

years' imprisonment under

Criminal Act, 18 U.S.C.

as

his

main issue

evidence at trial, taken

924(e)(1).

claim

of

He now appeals,

entrapment.

in the light most favorable

jury's verdict against Acosta, United States

_____________

29

F.3d 771, 773 (1st

the Armed

The

to the

v. Tuesta-Toro,
___________

Cir. 1994), cert. denied, 115 S. Ct.

_____________

947 (1995), revealed the following.

Acosta

record

is

of drug

a 42-year-old

offenses but

man,

married,

no prior

with a

prior

weapons convictions.

Sometime in mid-1993--probably in early July--Acosta met Neal

San Souci at a pawn shop in Pawtucket, Rhode Island,

and the

two men engaged in small talk regarding gold jewelry.

Acosta

and San

Souci

Unknown

to

had apparently

Acosta,

San

met once

Souci

either

many years

was

then

before.

or

soon

thereafter became a government informant.

A few days after

brother-in-law stopped

some

the pawn shop meeting, Acosta

by San

Souci's apartment

and his

to inspect

gold jewelry that San Souci had offered to sell Acosta.

Instead of providing the jewelry,

his brother-in-law whether they

cocaine.

San Souci asked Acosta and

could furnish San Souci with

When they declined, San Souci asked whether the two

-2-2-

men

could provide

a gun.

said, "he'd check into

According

it . . . . he

to San

Souci, Acosta

didn't know of anybody

or anything at that moment."

By

drug

his own testimony at

trial, San Souci

addict and present alcoholic.

July 1993 he began to work as

Stephen Woods of

was a former

Around the first week in

an informant for Special Agent

the Bureau of Alcohol, Tobacco and Firearms

("ATF").

for

case

failing to pay child support; for his assistance on this

and other

$4,000.

paid

Prior to working for ATF, San Souci had been jailed

matters,

ATF paid

San Souci conceded that

only if he succeeded

San Souci

approximately

he thought that he would be

in persuading Acosta

to sell him

the firearm.

San

Souci testified

that

following the

apartment he called Acosta on a number of

leaving messages

machine.

with

Acosta's

Acosta's wife

wife also

visit to

his

occasions, usually

or Acosta's

testified that

answering

the telephone

calls were very frequent, sometimes more than once a day, and

that Acosta himself appeared uninterested in the messages and

often made dismissive

gestures.

The purpose of

San Souci's

efforts

to reach Acosta was to obtain firearms for San Souci

to purchase.

On

July

telephone,

21,

1993,

San

Souci

again asking to purchase a

spoke

to

firearm.

Acosta

by

Acosta told

San Souci that he would "check into it" and advise San Souci.

-3-3-

On July

23 Acosta told

automatic

pistol

bargaining, San

San Souci that he

for sale.

Later

Souci gave Acosta

had a .25-caliber

that

day, after

$125 in exchange

weapon, which was fully loaded and had an obliterated

number.

San

some

for the

serial

Souci asked for more guns, and Acosta said that

he would "get back" to San Souci.

The conversation was taped

but the tape was inaudible.

At agent Woods' direction, San Souci did not call Acosta

for a

couple of weeks

secured.

for

weapons and

played

but

On August

in

because telephone records

6, 1993, San Souci called

the conversation--which

at trial--Acosta said that

needed more

September

15,

time.

1993,

and

were being

Acosta to ask

was taped

and

he was going

to get them

similar conversation

occurred on

on

the

following

day,

Acosta

telephoned

San Souci to tell

revolver for sale.

him that he

had a .32-caliber

The same day San Souci purchased the gun

from Acosta for $130, again after bargaining about price.

During this sale, San Souci asked Acosta if he could get

more guns.

Acosta

and "Maybe

replied, "I'm going to get

can come

up

with an

Uzi

.38 specials"

for $200."

This

conversation was recorded, and the recording played at trial.

There

is

attempted

arrested

no indication

or

that

accomplished.

any

In

other transactions

January

1994, Acosta

were

was

for the two weapons sales and charged in two counts

under the felon-in-possession statute.

-4-4-

At

his

transactions

primarily

trial,

Acosta

testified,

and his

status as

a prior

on the

entrapment

defense.

entrapment charge, whose correctness

jury

acquitted Acosta on the

transaction

transaction.

and

convicted

admitting

felon.

The

him

He relied

judge gave

is not challenged.

count relating to

for

the

the

an

The

the July 23

September

16

On this appeal, Acosta's main argument is that a verdict

of acquittal should have been directed on count II on grounds

of entrapment or, alternatively, that a new trial should have

been offered.

made out of

It appears that the motion for a new trial was

time, see Fed. R.

___

Crim. P. 33; but in

any case

the district court's denial of such a motion is reviewed only

for

abuse of

central

discretion.

issue of

sufficient

to

this

permit

We

think,

appeal is

therefore, that

whether the

reasonable

jury

the

evidence was

to

reject

the

entrapment defense.

The legal

What

is

offense

tests for

required

and (2)

is (1)

that the

entrapment

that

the

defendant

are well

established.

government induce

not be

the

predisposed to

commit

it.

(1992).

little

purpose,

See
___

The

to

Jacobson v.
________

United States, 503

______________

bare terms--inducement

disclose

the

encrusting

the most useful discussion is

U.S. 540

and predisposition--do

precedent.

For

our

the decision of then

Chief Judge (now Justice) Breyer in United States v. Gendron,

_____________
_______

-5-5-

18 F.3d 955 (1st Cir.), cert. denied, 115 S.

____________

That

decision, which is

Ct. 654 (1994).

post-Jacobson, not only illuminates

________

the entrapment concept but remains

the governing law in this

circuit.

Gendron makes clear that despite some general strictures

_______

against

the

inducement

agent

or

government's

requires something

informant suggested

occasion for it.

an

`opportunity'

more than

the

crime

that a

of

crimes,

government

and provided

the

Rather, inducement "consists of [providing]

plus something
____

pressure by the government

advantage"

"manufacturing"

else--typically, excessive

. . . or the

of the defendant in an

government's taking

improper way.

18 F.3d at

961 (emphasis

sense

of

added).

what

inducement

the

than the

There is no better means of getting a

courts

list

have

regarded

of cases

forth in the Gendron opinion.

_______

curbing such

competing policy

that

crime.

improper

also not

set

Id. at 961-62.
___

primarily concerned

pressure by

has led to the

the defendant

"improper"

and parentheticals

Although the entrapment doctrine is

with

as

be

the government,

second requirement, namely,

predisposed to

commit the

The notion is that a defendant predisposed to commit

the crime should

not get off

merely because the

government

gave the defendant too forceful a shove along a path that the

defendant would readily have

that

one might ask whether

taken anyway.

Gendron suggests
_______

defendant would have been likely

-6-6-

to commit the same crime without

_______

exerted.

18 F.3d at 962.

Entrapment is called

once the

the undue pressure actually

a defense, but it

defendant has made a threshold

is settled that

showing, the burden

shifts to the

either
______

that

trickery

States
______

this

government to prove beyond

there

was

no

undue

or that the defendant

government

the facts

undisputed.

Thus,

that of applying a

standards:

were

largely

the problem

pressure

was predisposed.

v. Rodriguez, 858 F.2d 809, 815

_________

case,

a reasonable doubt

See United
___ ______

(1st Cir. 1988).

although not

for the

jury was

or

In

entirely

primarily

vague general standard--actually two such

inducement

and

predisposition--to

unique

pattern of facts.

Because

think that

issue

of

entrapment.

the facts

were largely

on review this

law

whether

the

undisputed, one

court necessarily

facts do

Yet, even where there are

or

do

might

decides as

not

an

make out

no credibility issues

or

tensions

entrapment is

in

the

evidence--and

treated as a issue

some

do

exist

of fact for a

here--

jury.

That

does not mean complete freedom for the jury, see Jacobson; it
___ ________

does mean that where a rational jury could decide either way,

its verdict will not be disturbed.

United States v. Gifford,

_____________
_______

17 F.3d 462, 467 (1st Cir. 1994).

Starting

often) is

with

inducement, the

one of degree.

On

-7-7-

problem

the one hand,

(as

it is

so

the government

does not disclaim responsibility for San Souci's conduct even

if it occurred

before he

was hired, and

here that

conduct

went some distance beyond "simply offer[ing] [defendant]

opportunity" to commit the crime.

True, Acosta did not

Jacobson, 503 U.S. at 550.

________

close the door in the

first discussion

(Acosta, according to San Souci, said "he'd check

But

it

took a

campaign of

the

persistent

calls by

into it").

San Souci

before Acosta responded, apparently several weeks later.

On the other hand,

threatened

Acosta or

there is no evidence that

even rebuffed

an explicit

San Souci

request by

Acosta to be let alone.

Nor does this case involve improper

appeals to sympathy,

cf. Sherman v. United States, 356 U.S.

___ _______
______________

369 (1958), promises

of extravagant reward,

relentless

and extreme

trickery

customs agents in Jacobson.

________

words, the facts

engaged in

or the kind

of

by postal

and

See 503 U.S. at 543-47. In other

___

fall somewhere in

a middle ground

between

what is plainly proper and what is plainly improper.

If

the

entrapment

district

court

had

to

submit

the

issue to a jury for lack of threshold evidence of

inducement, we would have reversed.

the

refused

evidence was

so overwhelming

conduct by the government as "a

But we do not think that

as to

establish improper

matter of law."

San Souci's

efforts, although far from pristine, were dubious rather than

flagrant,

or

at

least

rational

factfinder

could

so

-8-8-

determine.

To

assume

that we

are

dealing with

boundary rather than a spectrum is an illusion.

sharp

By tradition

issues associated with

(duress, insanity,

United States
_____________

Other

entrapment) are

v. Gaudin,
______

issues,

perhaps

collateral matters,

reasonableness of

voluntariness of

115 S.

in

are determined

kind

the jury in

to the

jury.

2313-14 (1995).

but

by the court

and, in many

a confession).

merits-related issues,

submitted

Ct. 2310,

similar

a search

guilt or innocence

related

to

(e.g., the
____

jurisdictions, the

In the former

category of

close cases

effectively

decides not only what happened but also whether what happened

deserves the legal label described in the jury instruction.

If the

jury gets to make

on inducement, deference is even

issue of predisposition.

these middle-ground decisions

easier to understand on the

In large part, predisposition turns

on

making

character,

a judgment

as

to

background, and

how a

behavior

somewhat different circumstances.

the joint common sense of

defendant

would

of a

given

have acted

in

On questions of this kind,

a jury is hard to best.

At least

as a composite body, the jury probably knows quite as much as

the

judge, or more, about how human beings behave outside of

court.

Except where a

remain

the

as a check on

jury acquits in a

juries in the

judge thinks that a

criminal case, judges

extreme case--one where

rational jury could

-9-9-

reach only one

result.

Acosta invokes

no known

accept

this exception, arguing that

prior record of dealing

San

Souci's

initial

enthusiasm

throughout the

case

trial

the

judge

in guns, did

overtures,

venture.

could

We

not

and

not hurry to

showed little

agree that

have

he had

in this

withdrawn

the

predisposition issue from the jury by refusing to instruct on

entrapment,

and nor would we have been surprised if the jury

had chosen to acquit.

But

there is another

side to the

coin.

Acosta had a

criminal record in drug

dealing, properly made known

jury, and

drug dealing

is often associated

weapons.

He did not

San Souci,

and it

flatly rebuff the

is

to the

with access

to

initial overture by

uncertain whether

Acosta's delay

in

supplying a weapon reflected inertia, suspicion, or a genuine

reluctance

to commit

a criminal

act.

The second

gun was

provided with less prompting than the first, and the prospect

of a third

sale, possibly of

an Uzi,

was suggested at

the

end.

Thus,

a rational

predisposed to

drugs

would

qualification,

jury could

commit the

not

the

be

offense.

enough

government

by

was

conclude that

His

Acosta was

prior record

itself;

entitled

but,

to

with

rely

with

one

as

evidence of predisposition on

was approached

by

San

willingness at

least to

Acosta's own behavior after he

_____

Souci.

This

included

consider supplying arms,

an

initial

the later

-10-10-

provision of two weapons with the

be available,

suggestion that more would

and a certain measure

of professional finesse

in making the transfers.

It

is quite

mentioned) that

if

true (and this

is the

qualification just

under Jacobson predisposition does not count

________

it is itself the product

of improper government conduct.

That could reasonably have been said in Jacobson.

________

There, the

government,

defendant,

through

its

own

mailings

to

purporting to

come from others, encouraged

believe that

procuring child pornography was

censorship and in

favor of

the

the defendant to

a blow against

the First Amendment.

If

there

were predisposition, said the Court, the government instilled

it.

503 U.S. at 553.

In

was less

our case, the facts

persistent and less

are more equivocal.

deceptive than

San Souci

the agents

in

Jacobson.

Further,

San Souci did

defendant

to alter

his views

offered money

facts,

the

in exchange

jury

could

nothing to encourage

the

of right

and wrong;

he just

for weapons.

On the

present

have

concluded

predisposed or that he was not, but it

concluded that

San Souci created in

toward crime.

Certainly it

that

Acosta

was

could not easily have

Acosta a predisposition

was not obliged

to reach

this

conclusion.

As authority for a

judgment of acquittal, Acosta points

us to United States v. Beal,

_____________
____

961 F.2d 1512 (10th Cir. 1992).

-11-11-

There, a government informant, to secure relief from criminal

charges against him, pestered Beal with telephone calls until

drugs were supplied;

twenty-four hour

defense, the jury

two sales

period; and

were made by

presented

acquitted Beal

convicted on the second.

ordered an acquittal

Beal within

with an

as to the

entrapment

first sale

and

The district judge in Beal then

____

on the count of conviction.

By a two-

to-one vote,

the

the Tenth

two counts

conduct,

it

`beguiled'

Circuit affirmed, saying:

were founded

follows

that

upon one continuous

the

original

"Because

course of

inducement

which

Mr. Beal carried over to the second charge."

961

F.2d at 1517.

The government says

this case

that unlike Beal

____

took place two months

"the same course of conduct."

in Beal or in
____

case

is not

virtually

in

part of

Why this should matter, either

A jury in a

be consistent

in its

criminal

verdicts; on

the same evidence the jury may acquit on one count

and convict on the

57,

apart and were not

this case, is unclear.

obliged to

the two sales

65 (1984).

other.

United States v. Powell, 469 U.S.

_____________
______

The only question

for the judges--district

and

appellate--is

whether

the

evidence on

the

count

of

conviction compelled an acquittal.

It is not clear

to us whether Beal was

____

rightly decided

or

whether there are nuances in the evidence there that made

it

a stronger case for entrapment than

-12-12-

our own.

What we do

know--for reasons

count in

explained above--is that as

to the second

our case, the jury was entitled either to find that

Acosta was entrapped

or to

reject the defense.

Since

the

evidence permitted a conviction on count II, it is irrelevant

whether the

conviction is logically consistent with Acosta's

acquittal on count I.

As

it happens,

inherently

could

the two

inconsistent.

rationally

have

predisposed as to either

in connection with the

that the

verdicts in

Merely

concluded

as an

that

our case

are not

example, the

Acosta

sale; that the degree

was

jury

not

of badgering

first sale did constitute inducement;

lack of further badgering

distinguished the second

sale; and that therefore entrapment was established as to the

first sale but not as to

jury

adopted,

the

the second.

evidence

as

to

Whatever reasoning the

count

II permitted

conviction.

Acosta's

much

remaining claims

weaker.

First, we

government did not

of error

reject

the

prove the commerce

on the

appeal are

suggestion

that the

element in the

case.

The statute prohibits a prior felon from possessing a firearm

"in or affecting

commerce." 18

U.S.C.

922(g).

government offered

evidence from an ATF expert

the

by Acosta

other

firearms sold

than Rhode Island.

were made

Here

the

that both of

in specific

states

The jury was therefore entitled to

-13-

-13-

conclude

that

both

weapons

had

traveled

in

interstate

commerce before Acosta possessed them.

Acosta makes no constitutional claim but argues that the

statute should be read leniently to require that a

possess

the weapon,

travel, at least

if not

close in

actually during

time to

defendant

its interstate

such travel.

But

this

court has

were

already held

used as

that the terms

"jurisdictional

"affecting commerce"

words of

art" reflecting

intent to exercise the commerce clause power broadly.

States v. Gillies,
______
_______

851 F.2d

denied,
______

488

857

intent,

it is hard to doubt

U.S.

492, 493-95

(1988).

Given

United
______

(1st Cir.),

Congress'

an

cert.
_____

inferred

Gillies was correct and, in any

_______

case, it is binding.

Second, Acosta objects to

a note from the jury.

On May 27, 1994, a few hours after the

jury began deliberations, the

sides that the

court advised counsel for both

jury had submitted

play the tape/conversations

the

the trial court's handling of

a note

that were not

trial, are heard, are they allowed?"

reading:

"If

we

introduced during

At the request of

both sides, the court summoned the jury back to the courtroom

to

inquire further, it not being evident that there were any

taped conversations except those introduced at trial.

Before counsel could reassemble, the jury sent word that

it had reached a verdict.

Prior to taking the

verdict, the

court asked the jury in open court whether the jury no longer

-14-14-

wished to have

stated that

its written question

that

received and

was

the jury

correct.

answered.

Then

the

The

foreman

verdicts

was discharged, without

were

objection by

either side, either before or immediately after the taking of

the

verdicts.

Four days

later, Acosta's

counsel filed

motion to recall the jury for voir dire regarding the note.

The

district judge's denial of

the motion to recall is

now challenged on appeal, but the denial was plainly correct.

While

the

the jury's inquiry is puzzling, there is no proof that

jury considered

important, if

time

to ask

anything

outside the

defense counsel wanted a

here--as

with any

curable

evidence.

More

further inquiry, the

defect or

doubt--

plainly was

before the verdict.

______

1st Cir., August 28, 1995,

must manage

United States v. Mosquera,

______________
________

slip op. 14 & n.7.

juries in the face of

perplexities.

When

Trial judges

all kinds of problems and

trial counsel

acquiesce in

a proposed

solution, it is rare indeed that an appeals court will engage

in second guessing.

Third,

enhanced

because

the

district

sentence

under

he had

felony or

three

a serious

court

the

sentenced

Armed

Career

previous convictions

urged

offense."

that one of the

18 U.S.C.

to

Criminal

"for a

drug offense," specifically

trafficking convictions that met the statutory

"a serious drug

Acosta

an

Act,

violent

three drug

definition of

924(e)(1).

Acosta

prior convictions was invalid because

-15-15-

no inquiry was made in that case as to the

his guilty

plea.

On

procedural

factual basis for

grounds the

state

court

refused to set the conviction aside.

Acosta admits that under Custis v. United States, 114 S.

______
_____________

Ct. 1732

(1994), a

defendant has

no right

collaterally to

attack his

prior convictions

Armed Career Criminal

prevent the

Act.

trial court

during a sentencing

But, he says,

given

Custis does
______

from considering such

attack as a matter of discretion.

We

under the

not

a collateral

think that the reasons

by the Supreme Court in Custis apply with equal force,

______

whether the

reexamination of the state

by the defendant or the trial judge.

conviction is sought

See 114 S. Ct. at 1738___

39.

One

further word

is

in order.

government unduly encouraged Acosta

Whether or

not

the

to commit the offense is

a close call, but it is the kind of close call that a jury is

equipped to make.

What may be even more troublesome in cases

of this kind is the possibility of undue encouragement to the

______

informant, as a result
_________

(here,

money; in

Beal,
____

overstep the bounds

of compelling government

dismissal of

in the

inducements

criminal charges)

field, or in

the courtroom,

to

or

both.

In his

informant

dual role

has

incentive--to tilt

as both

special

both the

instigator and

capacity--as

well

event itself and

-16-16-

witness, the

as

strong

his testimony

about

it.

If the government

is going to use its informants

in a role just short of provocateur, it would be well advised

to consider

devising restrictions that will

the likelihood

for abuse.

Otherwise, the

is that the courts themselves

and

their

adjustments

reaching.

Affirmed.
________

are

at least lessen

lesson of history

are likely to take precautions

usually

more

rigid

and

far-

-17-17-