Appeal from the United States District Court for the Northern District of California. D.C. No. CR 90-00401-FMS. Fern M. Smith, District Judge, Presiding.
Before: Arthur L. Alarcon, Edward Leavy, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Leavy.
In this appeal we are confronted with the law of entrapment and are asked to evaluate jury instructions on that issue. The defendant asserts that his acquittal on one set of charges was inconsistent as a matter of law with his conviction on a second set of charges. The defendant also argues that the instructions given in this case were plainly erroneous because they failed to state accurately the government's burden of proof. We reverse and remand for a new trial.
FACTS AND PRIOR PROCEEDINGS
Michael Patrick Lessard, a member of the Hell's Angels Motorcycle Club, appeals from his conviction on two counts of federal firearms violations, viz., of being an ex-felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and for possession and transfer of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Lessard's conviction arose from his possession and transfer of explosives to Anthony Tait, a fellow Hell's Angel and, unbeknownst to Lessard, a government informant, on September 20, 1987. Lessard was also charged with identical crimes arising from the possession and transfer of explosives to Tait on June 18, 1987.
The jury acquitted Lessard on the charges relating to the June Transaction but convicted him on those stemming from the September Transaction. Lessard moved for a judgment of acquittal, contending that the jury's failure to convict him on the June Transaction showed that he was entrapped and remained so until the September Transaction was complete. The district court denied the motion and Lessard has timely appealed, claiming that he should have been acquitted of the September Transaction because the jury acquitted him of the June Transaction. Lessard also contends that the court's instruction on entrapment failed accurately to state the government's burden of proof as to when preDisposition to commit a crime must exist.
We review a district court's denial of a motion for judgment of acquittal under the same standard as applied to a challenge to the sufficiency of the evidence, while examining for clear error any underlying factual findings made by the district court. United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir.), cert. denied, 113 S. Ct. 2997 and 114 S. Ct. 556 (1993). Whether a jury instruction properly states the law of entrapment is a pure question of law subject to de novo review. United States v. Mkhsian, 5 F.3d 1306, 1311 (9th Cir. 1993).
Lessard first contends that the district court erred by denying his motion for acquittal. Implicit in Lessard's argument is the assumption that he was acquitted of the June Transaction because the jury found that he was entrapped, and that the two encounters were part of a single transaction. We reject this contention as finding no support in the law.
The defense of entrapment has two elements: (1) there must be a "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 jury is usually charged with determining the applicability of the entrapment defense. 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). Thus, for there to be entrapment as a matter of law, a defendant "must point to ' undisputed evidence making it patently clear that an otherwise innocent person was induced to commit ...