United States v. Habib Georges Makhlouta

790 F.2d 1400, 20 Fed. R. Serv. 1367, 1986 U.S. App. LEXIS 25464

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 2, 1986
• Docket: 85-5065
• Status: Published

Opinions

WALLACE, Circuit Judge:

Makhlouta appeals his conviction on two counts of possession with intent to distribute a controlled substance and two counts of distribution of a controlled substance, all in violation of 21 U.S.C. § 841(a)(1). Makhlouta argues that the district court erred by admitting certain testimony, by allowing testimony on redirect examination that exceeded the scope of the cross-examination, by permitting two instances of prosecutorial misconduct in closing argument, and by refusing to give requested jury instructions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

In September 1984, Makhlouta was arrested after delivering approximately 726 grams of heroin to undercover Federal Bureau of Investigation (FBI) agents Miller and Dunbar. The arrest followed an investigation that had extended over several months. Makhlouta had previously delivered a lesser quantity of cocaine to agent Miller.

At trial on four counts, Makhlouta did not deny possession and distribution of the heroin and cocaine. Instead, he asserted a defense of entrapment. Makhlouta was convicted on all four counts.

II

Makhlouta argues that the district judge improperly admitted hearsay testimony when he permitted Miller to testify, over objection, that he first met Makhlouta after an informant, Khawan, told Miller that Makhlouta and an associate were looking for a buyer of large quantities of cocaine. The district judge correctly determined that Khawan’s statement was not hearsay because it was offered not to prove the truth of the matter asserted but rather to show Miller’s state of mind when he began investigating Makhlouta. See Fed.R.Evid. 801(c); McCormick’s Handbook of the Law of Evidence § 249, at 733-34 (3d ed. 1984).

It does not follow, however, that the testimony was properly admissible to show Miller’s state of mind. Only evidence that is relevant is admissible. Fed.R.Evid. 402. The district court evidently acted on the assumption that Miller’s state of mind was relevant to Makhlouta’s asserted defense of entrapment. But under the law of entrapment, “it is not the state of mind of the government agent that is important; ... it is the ‘predisposition of the defendant’ to commit the offense ... that counts.” United States v. McClain, 531 F.2d 431, 435 (9th Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976), quoting United States v. Russell, 411 U.S. 423, 427, 93 S.Ct. 1637, 1640, 36 L.Ed.2d 366 (1973); see United States v. So, 755 F.2d 1350, 1354 (9th Cir.1985). Therefore, Miller’s testimony concerning Khawan's statement was irrelevant.

Although not raised as an issue on appeal, an objection was interposed during trial by Makhlouta on relevancy grounds. Even if we consider it now, however, we would have no difficulty finding that the error was more probably than not harmless. See Fed.R.Crim.P. 52(a); Burgess v. Premier Corp., 727 F.2d 826, 836 (9th Cir.1984). The essential elements of the testimony were elsewhere properly admitted in evidence: Khawan himself testified in detail that he contacted Miller after Makhlouta and an associate told Khawan that they were looking for a buyer of large quantities of cocaine. In addition, ample other evidence supported the jury’s conclusion that Makhlouta was predisposed to commit the offenses charged. Cf. United States v. Cowley, 720 F.2d 1037, 1045 (9th Cir.1983) (error in admitting evidence harmless where ample other evidence supports jury’s conclusion), cert. denied, 465 U.S. 1029,104 S.Ct. 1290, 79 L.Ed.2d 692 (1984); United States v. Rangel, 534 F.2d 147, 149 (9th Cir.) (same), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976).

Ill

Makhlouta next argues that the district court erred by permitting testimony on redirect examination that exceeded the scope of the cross-examination. We apply the abuse of discretion standard in reviewing a district court’s decision regarding the permissible scope of questioning. United States v. Palmer, 536 F.2d 1278, 1282-83 (9th Cir.1976).

On cross-examination of FBI agent Dunbar, Makhlouta’s counsel elicited testimony that Miller and Dunbar had suggested to Makhlouta several possible public locations for the heroin transaction planned for the following day. As Makhlouta points out, this testimony arguably supported the defense of entrapment by suggesting the degree of control exercised by the FBI agents. To rebut such an inference, the government on redirect examination asked Dunbar why Makhlouta and the agents had not instead discussed one specific location for the transaction. Dunbar responded that it would be extremely dangerous to designate in advance a specific location where the agents would have a substantial amount of money.

The district court did not abuse its discretion in permitting this redirect examination. It fell comfortably within the scope of the cross-examination, which had explored the discussion between Makhlouta and the agents regarding the location of the planned transaction. The redirect examination was also relevant, since it bore on the degree of control exercised by the agents.

IV

Makhlouta also argues that the district court committed reversible error by permitting an improper and inflammatory comment by the government in the rebuttal stage of closing argument. Responding to references by defense counsel to Makhlouta’s family, the prosecutor stated: “Now the defense has tried to portray the defendant as a family man. What kind of a family man stays out all night? What kind of family man gives out heroin samples and what kind of family man sells heroin that kids inject?” Makhlouta objected to the reference to “heroin that kids inject.” We review the district court’s decision to permit this comment under the abuse of discretion standard. United States v. Patel, 762 F.2d 784, 794 (9th Cir.1985) (Patel); United States v. Guess, 745 F.2d 1286, 1288 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1219, 84 L.Ed.2d 360 (1985).

We agree that the government’s comment was an ill-chosen response to the defense argument. Our review of the record, however, satisfies us that this single reference, “in the circumstances of the trial as a whole, [was not] so prejudicial that [it] likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial.” Patel, 762 F.2d at 795. Therefore, the district court did not commit reversible error in allowing the comment. Cf. United States v. Perez, 491 F.2d 167, 174 (9th Cir.) (prosecutor’s argument to jury that “[y]ou can imagine the quantity of heroin involved in this case that is taken out of the hands of little children in this town by the work of these narcotic agents” did not constitute reversible error), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974).

V

Makhlouta further contends that the district court improperly permitted the government in closing argument to comment on Makhlouta’s partial silence following arrest and Miranda warnings. Makhlouta concedes that no objection to this comment was made at trial. We therefore review the prosecutor’s conduct for plain error. United States v. Lopez, 575 F.2d 681, 684-85 (9th Cir.1978).

The government questioned Dunbar about his post-arrest interrogation of Makhlouta:

Q What did the defendant say?

A He advised that the substance he had given to Special Agent Miller and myself earlier in the day he knew in fact was heroin. He knew it was wrong; a violation to be doing this. However, he didn’t anticipate he would get caught. He wouldn’t say where he had gotten the heroin from earlier in the day, and basically that’s—

Later, the government employed this confession in cross-examining Makhlouta with respect to his defense of entrapment:

Q And in your confession you didn’t say you felt pressured to do this sale, did you?

A No, [agent Miller] did force me.

Q Is it your testimony that [agent Miller] forced you to do the sale on the 22nd?

A Yes.

Q And you didn’t say that in your confession, did you?

A What do you mean? I don’t understand.

Q When you gave your confession to Agent Dunbar, you didn’t say anything about being pressured to make the sale, did you?

A He left for me a paper and I was so extremely nervous, my mind was not — I had to just shake my head and say yeah, yeah, yeah.

Then, in closing argument, the prosecutor emphasized the inconsistency between Makhlouta’s post-arrest statements and his entrapment defense at trial. After reciting extensive evidence that Makhlouta was predisposed to commit the criminal activity, the prosecutor stated, “And all of [this evidence] is consistent with his confession when he said, ‘I knew it was wrong but I didn’t think I’d get caught.’ ” Further in the context of demonstrating Makhlouta’s predisposition, the prosecutor stated:

Finally, remember the case — or right after the arrest the defendant confessed and in that confession he did not say that he had been set up. He did not say he felt he’d been forced to do it. He didn’t say he’d done it out of fear, and he didn’t blame it on a drinking problem.

And in fact on the stand the defendant said, “Well, I got into this because I wanted money and my kids on TV.”

When a defendant has maintained silence after receiving Miranda warnings, the constraints of due process do not permit the prosecutor to use this silence to impeach an exculpatory story told for the first time at trial. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (Doyle). Where the defendant has voluntarily spoken after receiving Miranda warnings, however, Doyle does not bar “cross-examination that merely inquires into prior inconsistent statements.... As to the subject matter of his statements, the defendant has not remained silent at all.” Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980) (per curiam) (Charles). As our court has interpreted Charles, once a defendant makes post-arrest statements that “ ‘may arguably be inconsistent with the trial story,’ ” he has raised a question of credibility. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286 (9th Cir.) (emphasis added) (Ochoa-Sanchez), cert. denied, 459 U.S. 911, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982), quoting Grieco v. Hall, 641 F.2d 1029, 1034 (1st Cir.1981) (Grieco); accord Hockenbury v. Sowders, 718 F.2d 155, 158 (6th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 826 (1984); United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983).¹ The government, to provide all relevant evidence bearing on credibility, “may probe all post-arrest statements and the surrounding circumstances under which they were made, including defendant’s failure to provide critical details.” Ochoa-Sanchez, 676 F.2d at 1286.

Makhlouta’s post-arrest statements meet the Ochoa-Sanchez requirement of being arguably inconsistent with the defense of entrapment asserted at trial. Makhlouta’s post-arrest statements address the subject matter of why he sold heroin. These statements do more than neglect to suggest the defense of entrapment. They in fact offer a single explanation of his criminal activity — that he sold heroin, even though he knew it was illegal, because “he didn’t anticipate he would get caught” — that is arguably inconsistent with the entrapment defense since it is evidence of a criminal predisposition. See United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.1977) (lack of reluctance to commit crime is evidence of criminal predisposition), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978); id. at 1338 (defense of entrapment “is unavailable to a defendant who, motivated by greed and unconcerned about breaking the law, readily accepts a propitious opportunity to commit an offense”).²

Under Ochoa-Sanchez, the government could probe this arguable inconsistency by “ ‘inquiring] into what was not said at arrest.’ ” 676 F.2d at 1286, quoting Grieco, 641 F.2d at 1034. Such inquiry does not run afoul of Doyle, since it is “not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.” Charles, 447 U.S. at 409, 100 S.Ct. at 2182. Viewing the government’s cross-examination and closing argument in context,³ we conclude that they were properly designed to explore the arguable inconsistency between Makhlouta’s post-arrest statements and his defense of entrapment. Accordingly, we see no plain error in the district court’s failure to exclude the government’s comment in closing argument concerning this inconsistency.

VI

Finally, Makhlouta argues that the district court erred in refusing to give two proposed jury instructions on the issue of entrapment. A defendant is entitled to a jury instruction on “his theory of the case if it is supported by law and has some foundation in the evidence.” United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985) (Echeverry). The district court, however, may refuse a proposed instruction so long as the instructions given, viewed as a whole, cover that theory. United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). We review the district court’s formulation of instructions for an abuse of discretion. Echeverry, 759 F.2d at 1455.

As Makhlouta acknowledges, the court gave the general entrapment instruction that he requested. Makhlouta proposed two other instructions. The first stated that the defense of entrapment must be considered separately as to each count and provided an illustrative paragraph. The court gave the instruction but declined to give the accompanying illustration. The second proposed instruction stated that Makhlouta could not be convicted if he had merely the predisposition to aid others in entering into narcotics transactions but did not himself have the predisposition to possess or distribute narcotics. The court did not give this instruction.

The district court’s actions regarding these instructions fail to provide a basis for reversal. The illustrative paragraph in the first instruction was clearly superfluous. Moreover, the paragraph’s use of Makhlouta’s counts as examples could have confused the jury. The theory of the second instruction was adequately covered by the court’s general instruction on entrapment, which specifically provided that predisposition “to commit crimes such as are charged” had to be proven beyond a reasonable doubt.

AFFIRMED.

1 . The dissent claims that our court’s adoption in Ochoa-Sanchez of the standard of arguable inconsistency “was unnecessary to the holding because the inconsistency between the defendant’s stories was clear.” Dissenting op. at 1408 n. 3. Nowhere in Ochoa-Sanchez, however, do we state that the inconsistency was clear, nor is it evident that such was the case. Indeed, the dissenting judge in Ochoa-Sanchez expressly stated that there was no clear inconsistency. Ochoa-Sanchez, 676 F.2d at 1290 (Fletcher, J., dissenting). We therefore conclude that our adoption in Ochoa-Sanchez of the standard of arguable inconsistency was necessary to our holding.

2 . It is thus plain that, contrary to the suggestion in the dissent, see dissenting op. at 1407, we do not rely on an inconsistency between Makhlouta’s post-arrest silence and his assertion of the entrapment defense at trial.

3 . See Charles, 447 U.S. at 408, 100 S.Ct. at 2182 (prosecutor’s questions should not be artificially parsed); but see dissenting op. at 1408-1409 (artificially parsing prosecutor’s closing argument).