argued submitted pasadena california: June 7, 1993.
Appeal from the United States District Court for the Central District of California. D.C. No. CR 91-158-WMB. Wm. Matthew Byrne, Jr., District Judge, Presiding.
Before: Betty B. Fletcher, Cecil F. Poole, and David R. Thompson, Circuit Judges. Opinion by Judge Fletcher.
Appellants Mkhsian, Meliksetian, and Sogoyan appeal their convictions for violating 21 U.S.C. §§ 846, 841(a)(1) (conspiracy to possess cocaine with intent to distribute) and 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute). Meliksetian and Sogoyan also appeal their sentences. We have jurisdiction over appellants' timely appeals pursuant to 28 U.S.C. § 1291. We affirm Meliksetian's conviction and sentence, but, because the entrapment instructions given to the jury were erroneous, we reverse Mkhsian's and Sogoyan's convictions and remand for a new trial.
Appellants are Armenian-Americans who, prior to their convictions, resided in the greater Los Angeles area. In June 1990, the FBI asked Richard Stanton, a previously utilized informant, to contact Manouk "Mike" Mkhsian, who the government believed was laundering money. Stanton was directed to present himself as a money launderer and narcotics organization pilot with good connections in Belize and other Central American countries.
Over time, the FBI's investigation evolved into a "reverse sting" narcotics operation. Mkhsian introduced Stanton to Andranik "Andy" Sogoyan and Abram "George" Meliksetian. Eventually, Mkhsian, Sogoyan, and Meliksetian agreed to purchase five kilograms of cocaine from Stanton's "Colombian" sources. Meliksetian, the intended distributor, was arrested when he picked up the cocaine at a Long Beach Holiday Inn parking lot. Mkhsian and Sogoyan surrendered themselves approximately one week later.
The government argued that appellants were sophisticated cocaine dealers, with prior distribution experience, who were anxious to establish a distribution network in Los Angeles. In negotiations with an FBI agent who posed as an accountant for the fictitious Colombian drug cartel, appellants spoke in code and, right up to the end, seemed aggressive and self-assured.
Mkhsian and Sogoyan claimed that they were entrapped by the government. In particular, they pointed to their testimony that Stanton befriended them, represented himself as a "father figure" who would protect their interests, and that they tried to back out of the deal but were told by Stanton that the "Colombians" were "wild" and withdrawal "would be bad" for them. Stanton, they argued, knew about their financial troubles, pushed the drug deal from the start, and did everything in his power to see it consummated.
Meliksetian testified that he got involved, meeting with Stanton and the FBI "accountant," only because he wanted to help Mkhsian, who had gotten in over his head. When Mkhsian and Sogoyan wanted to pull out of the deal, Meliksetian testified that he told them that he would "take care of this thing" and that "this will end in a good way." His plan, he told the jury, was to pick up the cocaine and call the FBI. When arrested, he was carrying an address book containing an FBI agent's telephone number.
Mkhsian and Sogoyan argue that they were entrapped as a matter of law.*fn1 There are two elements to the defense of entrapment: (1) "government inducement of the crime," and (2) "the absence of preDisposition on the part of the defendant." United States v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992).
The entrapment issue is ordinarily one for the jury to resolve. Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988); United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986). That is, unless entrapment can be decided as a matter of law, "the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman v. United States, 356 U.S. 369, 377, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958); see also United States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1970), cert. denied, 402 U.S. 995, 29 L. Ed. 2d 160, 91 S. Ct. 2170 (1971).
To justify an acquittal as a matter of law, Mkhsian and Sogoyan "must point to ' undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act' by government agents." Skarie, 971 F.2d at 320 (emphasis added) (quoting United States v. Hart, 963 F.2d 1278, 1283 (9th Cir. 1992) (quoting United States v. Smith, 802 F.2d at 1124)). The record here shows the evidence to be in dispute.
Stanton's version of events, detailing his initial contacts with Mkhsian and Sogoyan, contrasts markedly with Mkhsian's and Sogoyan's testimony. It is far from "patently clear" that Stanton, the government's agent, induced Mkhsian's and Sogoyan's participation in the cocaine scheme. There are evidentiary disputes on nearly every detail of the first meetings among the three individuals. "The resolution of such conflicting assertions of fact relevant to the entrapment issue is a credibility question for the jury." Griffin, 434 F.2d at 981. The vastly different versions of ...