NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10262
Plaintiff-Appellee, D.C. No. 1:18-cr-00043-LEK-5 v.
PATRICK BELL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding
Submitted February 15, 2024** Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
In this appeal, Defendant Patrick Bell raises several challenges to his
conviction and sentence after being found guilty of four federal drug trafficking
counts. We have jurisdiction under 28 U.S.C. § 1291. Because the parties are
familiar with the facts, we do not recount them here, except as necessary to provide
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). context to our ruling. We affirm Bell’s conviction and affirm his sentence in large
part, but we vacate the district court’s imposition of the “standard conditions” of
supervised release and remand for the district court to orally pronounce any such
conditions it chooses to impose.
1. Bell raises two challenges to the district court’s denial of his requested
jury instructions. We review both challenges for abuse of discretion. See United
States v. Spentz, 653 F.3d 815, 818 (9th Cir. 2011); United States v. Tuan Ngoc
Luong, 965 F.3d 973, 985 (9th Cir. 2020).
First, the district court did not abuse its discretion by declining to offer an
entrapment instruction with respect to Counts 4 and 5. A defendant is not entitled
to an entrapment instruction unless he can point to evidence showing that (1) he
“was induced to commit the crime by a government agent,” and (2) he “was not
otherwise predisposed to commit the crime.” Spentz, 653 F.3d at 818. “Only
slight evidence will create the factual issue necessary to get the [entrapment]
defense to the jury,” and such evidence may be “weak, insufficient, inconsistent, or
of doubtful credibility.” Id. However, “there still must be some evidence
demonstrating the elements of the defense before an instruction must be given.”
Id. (emphasis added).
Bell cannot point to sufficient evidence to establish that either element of
entrapment was present here. With respect to inducement, the evidence tends to
2 show merely that government agents created the opportunity for Bell to pick up
drug parcels, which, although relevant, is insufficient on its own. See, e.g., United
States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000) (“An ‘inducement’ consists
of an ‘opportunity’ plus something else — typically, excessive pressure by the
government upon the defendant or the government’s taking advantage of an
alternative, non-criminal type motive.” (citation omitted)).
Even if Bell could show that there was “slight evidence” of inducement, he
does not point to anything to plausibly demonstrate his lack of predisposition.
Instead, the record clearly shows that Bell was eager to engage in the specific
conduct underlying Counts 4 and 5 (i.e., picking up a drug parcel on March 19,
2018, and picking up his payment of drugs the day after), and that he was far from
reluctant to engage in drug trafficking generally. Additional evidence tends to
support the other factors the Ninth Circuit has concluded are relevant to the
question of lack of predisposition. United States v. Gurolla, 333 F.3d 944, 955
(9th Cir. 2003) (listing relevant factors and noting that, although no single factor
controls, “the most important is the defendant’s reluctance to engage in criminal
activity”). On this record, we cannot conclude that the district court abused its
discretion by declining to offer an entrapment instruction.
Second, the district court did not abuse its discretion in denying Bell’s
request for a specific unanimity instruction with respect to Count 2. Although
3 specific unanimity instructions are necessary in some circumstances, we have held
that “[i]n the typical case, a district court’s general unanimity instruction to the
jury adequately protects a defendant’s right to a unanimous jury verdict.” United
States v. Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015). Bell contends that specific
jury unanimity was required here because the evidence showed that there were two
separate points on February 2, 2018, at which he could have possessed fifty or
more grams of methamphetamine: (a) when Bell picked up a parcel containing five
pounds of crystal methamphetamine from Chika’s Gas Station and delivered it to
Oscar Robles-Ramos, and (b) when Bell received a small bag containing two
ounces of crystal methamphetamine from Robles-Ramos later that day as payment
for picking up the parcel. Without a specific unanimity instruction, Bell argues,
the jury could have convicted him on Count 2 without necessarily agreeing as to
which of these two acts of possession occurred.
We have previously rejected similar arguments and held that a specific
unanimity instruction is not required even where there is evidence that a defendant
possessed a controlled substance at separate points across a prolonged timespan.
See United States v. Mancuso, 718 F.3d 780, 792–93 (9th Cir. 2013) (multiple
alleged instances of possession of cocaine across seven-year timespan); United
States v. Ferris, 719 F.2d 1405, 1406–07 (9th Cir. 1983) (multiple alleged
instances of possession of LSD across two-month timespan). Because possession
4 of a controlled substance with intent to distribute is a continuing offense, “[i]t does
not matter that different jurors may have found different pieces of testimony
credible, as long as the jury is unanimous on the bottom line conclusion that [the
defendant] was guilty of the acts charged.” Mancuso, 718 F.3d at 793 (citing
Schad v. Arizona, 501 U.S. 624, 631–32 (1991) (plurality opinion), abrogated in
part on other grounds by Ramos v. Louisiana, 140 S. Ct. 1390 (2020)).
Bell does not address these cases or explain why their holdings should not
apply. True, the separate acts of possession evidenced here were not literally
continuous: Bell presumably lost possession of the five-pound parcel of crystal
methamphetamine when he delivered the parcel to Robles-Ramos, and it was only
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10262
Plaintiff-Appellee, D.C. No. 1:18-cr-00043-LEK-5 v.
PATRICK BELL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding
Submitted February 15, 2024** Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
In this appeal, Defendant Patrick Bell raises several challenges to his
conviction and sentence after being found guilty of four federal drug trafficking
counts. We have jurisdiction under 28 U.S.C. § 1291. Because the parties are
familiar with the facts, we do not recount them here, except as necessary to provide
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). context to our ruling. We affirm Bell’s conviction and affirm his sentence in large
part, but we vacate the district court’s imposition of the “standard conditions” of
supervised release and remand for the district court to orally pronounce any such
conditions it chooses to impose.
1. Bell raises two challenges to the district court’s denial of his requested
jury instructions. We review both challenges for abuse of discretion. See United
States v. Spentz, 653 F.3d 815, 818 (9th Cir. 2011); United States v. Tuan Ngoc
Luong, 965 F.3d 973, 985 (9th Cir. 2020).
First, the district court did not abuse its discretion by declining to offer an
entrapment instruction with respect to Counts 4 and 5. A defendant is not entitled
to an entrapment instruction unless he can point to evidence showing that (1) he
“was induced to commit the crime by a government agent,” and (2) he “was not
otherwise predisposed to commit the crime.” Spentz, 653 F.3d at 818. “Only
slight evidence will create the factual issue necessary to get the [entrapment]
defense to the jury,” and such evidence may be “weak, insufficient, inconsistent, or
of doubtful credibility.” Id. However, “there still must be some evidence
demonstrating the elements of the defense before an instruction must be given.”
Id. (emphasis added).
Bell cannot point to sufficient evidence to establish that either element of
entrapment was present here. With respect to inducement, the evidence tends to
2 show merely that government agents created the opportunity for Bell to pick up
drug parcels, which, although relevant, is insufficient on its own. See, e.g., United
States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000) (“An ‘inducement’ consists
of an ‘opportunity’ plus something else — typically, excessive pressure by the
government upon the defendant or the government’s taking advantage of an
alternative, non-criminal type motive.” (citation omitted)).
Even if Bell could show that there was “slight evidence” of inducement, he
does not point to anything to plausibly demonstrate his lack of predisposition.
Instead, the record clearly shows that Bell was eager to engage in the specific
conduct underlying Counts 4 and 5 (i.e., picking up a drug parcel on March 19,
2018, and picking up his payment of drugs the day after), and that he was far from
reluctant to engage in drug trafficking generally. Additional evidence tends to
support the other factors the Ninth Circuit has concluded are relevant to the
question of lack of predisposition. United States v. Gurolla, 333 F.3d 944, 955
(9th Cir. 2003) (listing relevant factors and noting that, although no single factor
controls, “the most important is the defendant’s reluctance to engage in criminal
activity”). On this record, we cannot conclude that the district court abused its
discretion by declining to offer an entrapment instruction.
Second, the district court did not abuse its discretion in denying Bell’s
request for a specific unanimity instruction with respect to Count 2. Although
3 specific unanimity instructions are necessary in some circumstances, we have held
that “[i]n the typical case, a district court’s general unanimity instruction to the
jury adequately protects a defendant’s right to a unanimous jury verdict.” United
States v. Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015). Bell contends that specific
jury unanimity was required here because the evidence showed that there were two
separate points on February 2, 2018, at which he could have possessed fifty or
more grams of methamphetamine: (a) when Bell picked up a parcel containing five
pounds of crystal methamphetamine from Chika’s Gas Station and delivered it to
Oscar Robles-Ramos, and (b) when Bell received a small bag containing two
ounces of crystal methamphetamine from Robles-Ramos later that day as payment
for picking up the parcel. Without a specific unanimity instruction, Bell argues,
the jury could have convicted him on Count 2 without necessarily agreeing as to
which of these two acts of possession occurred.
We have previously rejected similar arguments and held that a specific
unanimity instruction is not required even where there is evidence that a defendant
possessed a controlled substance at separate points across a prolonged timespan.
See United States v. Mancuso, 718 F.3d 780, 792–93 (9th Cir. 2013) (multiple
alleged instances of possession of cocaine across seven-year timespan); United
States v. Ferris, 719 F.2d 1405, 1406–07 (9th Cir. 1983) (multiple alleged
instances of possession of LSD across two-month timespan). Because possession
4 of a controlled substance with intent to distribute is a continuing offense, “[i]t does
not matter that different jurors may have found different pieces of testimony
credible, as long as the jury is unanimous on the bottom line conclusion that [the
defendant] was guilty of the acts charged.” Mancuso, 718 F.3d at 793 (citing
Schad v. Arizona, 501 U.S. 624, 631–32 (1991) (plurality opinion), abrogated in
part on other grounds by Ramos v. Louisiana, 140 S. Ct. 1390 (2020)).
Bell does not address these cases or explain why their holdings should not
apply. True, the separate acts of possession evidenced here were not literally
continuous: Bell presumably lost possession of the five-pound parcel of crystal
methamphetamine when he delivered the parcel to Robles-Ramos, and it was only
later that day when Robles-Ramos gave Bell the two-ounce payment of crystal
methamphetamine in return. Nevertheless, these two acts were undoubtedly “set
on foot by a single impulse” and thus part of the same continuing offense of
possession with intent to distribute. Mancuso, 718 F.3d at 792. In any event, Bell
provides no authority supporting his contention that a specific unanimity
instruction is required where a defendant’s separate acts of possession were, in his
words, “without continuity or overlap.”
Furthermore, there were no other special considerations here suggesting that
a specific unanimity instruction should have been provided. The facts presented to
the jury were relatively straightforward, and there was “no communication or other
5 indication from the jury suggesting that it was in any way confused.” United
States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989). Taking these facts and
our precedent into account, we conclude that the district court did not abuse its
discretion by declining to require specific jury unanimity as to Count 2.
2. Next, Bell raises several challenges to the district court’s imposition of
his sentence. Bell first argues that the district court erred by not affording him a
two-level reduction under U.S.S.G. § 3E1.1(a) because “he clearly demonstrated
acceptance of responsibility for his offenses” during his confession to law
enforcement on March 20, 2018. Reviewing for clear error, see United States v.
Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010), we affirm. Although Bell admitted to
engaging in conduct relevant to his indicted charges, we agree with the government
that Bell was not forthcoming about his own efforts to sell crystal
methamphetamine to others (and, indeed, denied any knowledge of selling drugs).
Bell likewise did not disclose many of the other ways in which he aided the drug
trafficking operation, such as by helping package and send drug proceeds from
Hawai‘i to Mexico on at least two occasions.
Bell also expressed little in the way of contrition or remorse for his actions.
See United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994) (“The primary
goal of the reduction is to reward defendants who are genuinely contrite.”).
Notably, Bell proceeded to trial where he contested his culpability as to the
6 different counts. We thus conclude that this is not one of the “unusual cases in
which a defendant is entitled to an acceptance of responsibility reduction despite
having pleaded not guilty.” Id. at 852.
The district court also did not clearly err by finding Bell ineligible for safety
valve relief under 18 U.S.C. § 3553(f). See United States v. Salazar, 61 F.4th 723,
726 (9th Cir. 2023). Again, although Bell was forthcoming about some of his
involvement in the drug trafficking operation, we agree that he did not provide the
government “all of the information” he knew, as is required to obtain safety valve
relief. 18 U.S.C. § 3553(f)(5). Namely, the record reflects that Bell had a
“network of customers to whom he intended to distribute” crystal
methamphetamine, yet Bell denied any knowledge of how to sell drugs.
For many of the same reasons, we conclude that the district court did not err
in declining to grant Bell a mitigating role reduction pursuant to U.S.S.G. § 3B1.2.1
Even if Bell played a more minor role than several of his coconspirators and may
not have “exercised decision-making authority or influenced the exercise of
decision-making authority,” U.S.S.G. § 3B1.2 cmt. n.3(C)(iii), the record supports
1 There appears to be a split of authority as to whether the district court’s determination about whether a defendant was engaged in a mitigating role is reviewed for clear error, or for abuse of discretion. Compare United States v. Dominguez-Caicedo, 40 F.4th 938, 965–66 (9th Cir. 2022), with Rosas, 615 F.3d at 1066. We need not decide which standard applies because Bell’s argument fails under either.
7 the district court’s conclusion that Bell was “not a minor participant.” See United
States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006) (under U.S.S.G. § 3B1.2,
“[i]t is not enough that a defendant was less culpable than his or her co-
participants, or even that he or she was among the least culpable members of the
group”). Among other things, Bell was “involved in picking up parcels” of crystal
methamphetamine, and volunteered his own address to receive drug parcels. Bell
also stood to benefit financially from his participation in the drug trafficking
operation — at least to be able to pay his own bills, and perhaps to bring in
substantially more money. We thus affirm the district court in this respect.
3. Finally, in his Reply Brief, Bell for the first time raises two additional
challenges to his sentence. Citing our decision in United States v. Stephens, 424
F.3d 876 (9th Cir. 2005), Bell argues that the district court’s imposition of a
sentencing condition requiring him to undergo alcohol testing “at the direction of
the probation office,” was an improper delegation of authority to a nonjudicial
officer. Because he could have raised this argument in his Opening Brief but failed
to do so, Bell waived this argument, and we decline to consider it. See, e.g.,
United States v. Kelly, 874 F.3d 1037, 1051 n.9 (9th Cir. 2017).
However, the parties agree that a limited remand is appropriate in light of
our recent en banc decision in United States v. Montoya, 82 F.4th 640 (9th Cir.
2023) (en banc). Montoya was decided after the district court imposed Bell’s
8 sentence, and after Bell filed his Opening Brief and the government filed its
Answering Brief. We agree that a limited remand is appropriate and, accordingly,
“vacate only the conditions of [Bell’s] supervised release that were referred to as
the ‘standard conditions’ in the written sentence but were not orally pronounced”
at sentencing. Id. at 656. On remand, the district court shall orally pronounce “any
of the standard conditions of supervised release it chooses to impose,” such that
Bell has an opportunity to object to them. Id.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.