In United States v. Gomez, --- F.4th ---, No. 19-50313 (9th Cir. 2021), a divided panel affirmed convictions and the sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm.
The primary issue on appeal was whether the district court erred in allowing the government to preemptively rebut an entrapment defense by presenting predisposition evidence in its case-in-chief. The majority held it did not, explaining:
- A defendant need not inform the court of his intent to invoke an entrapment defense. “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment.”
- Nor does the defendant have to present evidence to support the entrapment defense; rather, the defendant may rely on evidence presented by the government. In Sherman v. United States, for instance, the Supreme Court held that “entrapment was established as a matter of law” based solely on “the undisputed testimony of the prosecution’s witnesses.” 356 U.S. at 373. Similarly, we have explained that “[t]he evidence supporting the entrapment defense need not be presented by the defendant,” and that “[e]ven when a defendant presents no evidence of entrapment, it may nonetheless become an issue at his trial if (1) the Government’s case-in-chief suggests that the defendant who was not predisposed was induced to commit the crime charged, or (2) a defense or a government witness gives evidence suggesting entrapment.”
- Because in our circuit a defendant can argue that he was entrapped, and may be entitled to an entrapment instruction, based solely on evidence introduced by the government, we do not have a per se rule precluding the government from rebutting an anticipated entrapment defense in its case in chief, because such a rule would be unfair. Said otherwise, a blanket rule “that no evidence of a predisposition to commit the crime and no proof of prior convictions may ever be introduced by the government except in rebuttal to affirmative evidence of entrapment adduced by defendant” would “work grave prejudice to the government,” because it would allow a defendant to invoke the defense without the government having had an opportunity to rebut it.
- Nevertheless, the government can introduce such evidence in only limited circumstances. We agree with the Second Circuit that evidence rebutting an anticipated entrapment defense “is admissible as part of the prosecution’s case in chief” only “where it is clear . . . that the [entrapment] defense will be invoked.” A defendant clearly indicates that he will invoke an entrapment defense when defense counsel “raise[s] the defense of entrapment during his opening statement,” when the entrapment defense materializes “through a defendant’s presentation of its own witnesses or through cross-examination of the government’s witnesses,” or when the defendant requests an entrapment instruction or tells the trial judge that he intends to invoke an entrapment defense"
In this case, the majority concluded that the district court permissibly allowed the government to present predisposition evidence in its case-in-chief, because it was sufficiently clear that Gomez would invoke an entrapment defense.
The majority also held that the district court did not err in admitting gang-affiliation evidence. It reasoned: "when a defendant raises an entrapment defense, character, reputation, and lack of reluctance constitute 'essential elements' of the entrapment defense." And "[b]ecause character evidence is both admissible and an essential element of an entrapment defense, it may be proved under Rule 405 of the Federal Rules of Evidence by reputation or opinion testimony, as well as by specific instances of conduct."
Next, the majority held that any error in allowing Gomez’s parole officer to testify at trial was harmless.
Finally, the majority held the district court properly applied a two-level enhancement under § 2D1.1(b)(1) for possessing a dangerous weapon.
The dissent argued that the trial court committed reversible error by allowing the government to present evidence to the jury in its case-in-chief to “rebut” an anticipated entrapment defense which was never presented by the defendant.
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