
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1712                                    UNITED STATES,                                      Appellee,                                          v.                                     LUIS ALZATE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Cyr, Boudin and Stahl, Circuit Judges.                                               ______________                                 ____________________            Normand S. Zalkind with whom Zalkind,  Rodriguez, Lunt & Duncan is            __________________           __________________________________        on brief for appellant.            Margaret F.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse,  United  States  Attorney,  and  Edwin  J.  Gale,        ___________________                                   _______________        Assistant United States Attorney, are on brief for appellee.                                 ____________________                                  November 27, 1995                                 ____________________                 Per  Curiam.     Defendant  Luis   Alzate  appeals   his                 ___________            conviction for possessing cocaine with intent  to distribute,            21  U.S.C.     841(a)(1) and  (b)(1)(B), contending  that two            errors in  the jury  instructions relating to  his entrapment            defense  warrant reversal.  As Alzate failed to object at the            time the  instructions were given,  we review only  for plain            error.                 1.   One element of  entrapment is  that the  government            have instigated the defendant's conduct.  E.g., United States                                                      ____  _____________            v.  Gifford, 17 F.3d 462, 468 (1st Cir. 1994).  Alzate claims                _______            that the district court erred by failing to instruct the jury            that   the  actions   of  the   FBI's  paid   informant  were            attributable   to   the   government.      The   government's            responsibility for the informant was not in dispute at trial,            and Alzate understandably sought no instruction.                 Nevertheless,  on appeal Alzate  relies upon  an earlier            dictum of this court that where the  government concedes that            the  actions   of  its  informer  are   attributable  to  the            government, the jury should be so  instructed.  United States                                                            _____________            v. Annese, 631 F.2d 1041,  1048 (1st Cir. 1980).  In  Annese,               ______                                             ______            the trial  judge had  confused matters by  instructing jurors            that they must  determine whether  the "inducing"  individual            was  an agent  for  the government,  even  though no  dispute            existed as to  that issue.   Annese certainly  does not  hold                                         ______            that it  is reversible  error to  forego the instruction  now                                         -2-                                         -2-            claimed  necessary where,  as  here, no  such instruction  is            sought and there is no indication of prejudice.                 Ordinarily, a  claimed error  to which no  objection was            made at trial  will not  be considered without  a showing  of            likely effect on the outcome.  United States v. Olano, 113 S.                                           _____________    _____            Ct. 1770, 1777-778  (1993).   Here, we have  every reason  to            think that the jury clearly understood that the informant was            acting  as  a   government  agent.     Undisputed   testimony            established that  the informant  was paid by  the government,            received instruction from FBI agents, and regularly  reported            to  the FBI.   Indeed, the prosecution's  own closing remarks            conceded  that the  inducer "was  a paid  FBI informant"  who            arranged the drug  transaction "on  behalf of the  FBI."   On            these  facts we  find no  prejudice, even  assuming that  the            dictum in Annese should be extended beyond the peculiar facts                      ______            of that case.                 2.    The  other  element  of  the  standard  entrapment            instruction  requires  the   government  to  show   that  the            defendant, if induced to commit the crime, was predisposed to            do  it before  the government  approached  him.   Gifford, 17                                                              _______            F.3d.  468.  The instructions here so advised the jury in the            conventional manner.  Among  other references, the judge told            the jury that the entrapment defense applies when a defendant            "who has no previous intent to commit a crime is persuaded to            do so by the Government through  its agents."  The court also                                         -3-                                         -3-            said that, for an entrapment claim  to prevail, the defendant            must  be "not predisposed to engage in such conduct" and that            the entrapment  defense would not apply  "[i]f the Government            proves the Defendant was ready and willing to break the law .            . . ."                 The subtlety  now relied upon  by Alzate  is that  under            Jacobson  v. United States, 503  U.S. 540, 549  & n.2 (1992),            ________     _____________            the government cannot prove predisposition if the defendant's            willingness to  commit the  crime was itself  manufactured by            the government in  the course of  dealing with the  defendant            before he committed  the crime  charged.  We  think that  the            first  of  the  instructions  quoted  above--referring  to  a            defendant  with "no previous intent to commit a crime" who is            "persuaded . .  . by the Government"--does  convey the notion            that the question posed was whether Alzate did  have criminal            intent before  the government  persuasion occurred.   While a                   ______            more  precisely tailored  instruction  might well  have  been            suitable  if specially sought, such refinements tailoring the            language to the situation  require that the judge  be advised            of the request.  We  do not think that there was  plain error            in the charge.                 We  also have  little reason to  think that  the precise            phrasing of the instruction affected the outcome.  Alzate did            testify that he was repeatedly badgered by the informant, but            his  claims were not entirely borne out by what was recorded.                                         -4-                                         -4-            Moreover,  Alzate,  who had  a beeper  with  him when  he was            arrested, also was found  to have in his house  an electronic            scale, a kit for testing cocaine including a chemical used to            perform  the test, and a  small amount of  cocaine.  Although            Alzate  offered the  jury  explanations for  the cocaine  and            other  paraphernalia,   it  was  easily  within   the  jury's            discretion to disbelieve him.                 Affirmed.                 ________                                         -5-                                         -5-
