argued submitted seattle washington: March 3, 1993.
Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-91-128-01-JET. Jack E. Tanner, District Judge, Presiding.
Before: Eugene A. Wright, William C. Canby, Jr. and Stephen Reinhardt, Circuit Judges. Opinion by Judge Wright.
A 14-month undercover investigation of suspected organized crime in the Puget Sound region led to the arrest of Gabriel and Jose Becerra and Salvatore LaRizza for cocaine and heroin conspiracy. A jury convicted LaRizza of distribution of and conspiracy to distribute cocaine and heroin and interstate travel in aid of racketeering. The Becerras pleaded guilty to one count of conspiracy to distribute cocaine. The district court sentenced all three to 20-year statutory mandatory minimum sentences. LaRizza appeals his conviction and sentence. The Becerras appeal their sentences. We reverse LaRizza's conviction because the district court did not instruct the jury on entrapment. We affirm Gabriel Becerra's sentence but reverse Jose Becerra's sentence and remand for resentencing because the court erroneously determined his base offense level.
Although the parties disagree about many of the facts, the following is undisputed. In early 1990, the FBI and the Seattle Police Department began investigating organized crime in the Puget Sound area. In an attempt to infiltrate Seattle's Colacurcio family, well-known to law enforcement for involvement in criminal activity, Detective Richard O'Donnell posed as Joey Castellano, son of a New York mobster and an all-around "wiseguy." One of the targets of the investigation, Robert Payton, introduced O'Donnell to Salvatore LaRizza at a Seattle restaurant where LaRizza worked as a waiter. At trial, LaRizza testified that Payton told him to give "Joey" special treatment because he was a "big mobster from New York."
Two months after their first meeting, O'Donnell gave LaRizza and Angela, a paid police informant, a ride home from a party. After Angela mentioned that LaRizza had a cocaine connection, O'Donnell asked LaRizza if he could get some cocaine. This is where the parties begin to disagree about the facts. O'Donnell testified that LaRizza replied that he would talk to his connections in California. LaRizza testified that he said he knew a drug dealer, but warned that drug dealing was "no good."
O'Donnell also testified that during the next several months he asked LaRizza from 10 to 15 times whether he had contacted his source and LaRizza replied that he was still trying. LaRizza, on the other hand, said O'Donnell pestered him almost constantly, visiting him at the restaurant 44 times in a three-month period. He claimed that he did not intend to deal drugs and kept trying to discourage O'Donnell by saying that his source was unavailable.
Finally, early in 1991, LaRizza agreed to set up a deal. He testified that he did so because he was afraid O'Donnell was a Mafioso who would kill him or someone in his family if he did not cooperate. He also claimed that O'Donnell induced him into the deal by offering him a business partnership. O'Donnell denied saying that he was in the Mafia and contended that he acted only as a street-wise New Yorker who acknowledged knowing some Mafia members.
The two flew to San Francisco on March 3. No deal was made, but LaRizza told O'Donnell he had contacted his source. Two weeks later, the two returned to the Bay area. LaRizza made arrangements for O'Donnell to buy a kilo of cocaine from the Becerras. LaRizza testified that O'Donnell gave him $1000 for his participation. O'Donnell testified that LaRizza took the $1000 out of the $22,000 purchase price.
On April 21, the two again traveled to the Bay area, this time to Oakland. LaRizza arranged another drug deal between O'Donnell and the Becerras for a kilo of cocaine and an ounce of black tar heroin. O'Donnell paid for both trips.
In between the two deals, O'Donnell asked LaRizza if his source could supply 25 kilos of cocaine a month. O'Donnell testified that LaRizza responded "yes." On May 13, the two drove from Seattle to Oakland. LaRizza claimed that he never intended to set up a 25-kilo deal and was trying to figure how to get away from O'Donnell. O'Donnell, on the other hand, said that, after arriving in Oakland, LaRizza left their hotel to contact his source. He returned that evening, telling O'Donnell that the deal was set. O'Donnell said he could not deal because of the late hour. Agents arrested LaRizza and the Becerras the next day. No drug deal occurred. No drugs were discovered on them or at the Becerras' residences.
The government charged all three in a superseding indictment. LaRizza moved for a continuance and for public funds for a tape transcriber to transcribe undercover recorded conversations between himself and O'Donnell. The court denied both motions.
On the first day of trial, the Becerras pleaded guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. LaRizza went to trial and raised the defenses of entrapment and duress but, after hearing all the evidence, the court declined to instruct on them. The court also did not allow LaRizza's witnesses to testify about O'Donnell's threatening behavior and the Mafia domination of LaRizza's home town.
A jury convicted LaRizza on all counts: conspiracy to distribute cocaine and heroin, 21 U.S.C. §§ 812, 841(b)(1)(C) and 846; distribution of cocaine and heroin, 21 U.S.C. §§ 812, 841(a)(1)and (b)(1)(B); and interstate travel in aid of racketeering, 18 U.S.C. §§ 1952(a)(3) and 2. At sentencing, the court found that the proposed third deal was part of an ongoing scheme in which all three defendants were involved. It then used the 25-kilogram amount to calculate their sentences. Because all three had prior felony drug convictions, the court sentenced them to the statutory mandatory minimum of 20 years imprisonment followed by 10 years supervised release. See 21 U.S.C. 841(b).
A. Refusal to Instruct on Entrapment
There is a split of authority in this circuit concerning the appropriate standard of review (de novo or abuse of discretion) of a district court's decision not to instruct a jury on the defendant's theory of the case. United States v. Sotelo-Murillo, 887 F.2d 176, 179-80 (9th Cir. 1989). We need not address this issue, however, because we ...