                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              MAR 25 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,
              Plaintiff-Appellee,                           No. 97-4109
 v.                                                   (D.C. No. 96-CR-192-3)
 MANUEL GAMA,                                                 (D. Utah)
              Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRORBY, McKAY, and BRISCOE, Circuit Judges.




      Defendant was convicted for possession of cocaine with intent to distribute

and for aiding and abetting in the commission of that crime in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. On appeal, Defendant asserts

that his convictions must be reversed and his case remanded for a new trial

because the district court made two errors relating to the jury instructions on the

defense of entrapment.

      Defendant first argues that the court committed reversible error in failing to


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
instruct the jury on the government’s burden of proving beyond a reasonable

doubt that Defendant was not entrapped. Because Defendant objected to the

entrapment instruction at trial, we review de novo whether the court erred in

failing to instruct on the government’s burden of proof on entrapment. See

United States v. Pappert, 112 F.3d 1073, 1076 (10th Cir. 1997). We must

determine whether the instructions, taken as a whole, adequately informed the

jury of the prosecution’s burden of proof on the entrapment issue. See United

States v. Martinez, 749 F.2d 601, 605-06 (10th Cir. 1984); United States v.

Gurule, 522 F.2d 20, 25 (10th Cir. 1975), cert. denied, 425 U.S. 976 (1976).

      A defendant must raise the defense of entrapment by presenting evidence

that (1) he was induced by a government agent to commit the offense, and (2) he

was not predisposed to commit that offense. See United States v. Young, 954

F.2d 614, 616 (10th Cir. 1992). Once a defendant has presented sufficient

evidence to create a question of fact for the jury, the burden shifts to the

government to prove beyond a reasonable doubt that the defendant was not

entrapped. See United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998)

(citing Young, 954 F.2d at 616). We have held that to meet its burden of proof,

the government must prove at least that the defendant was disposed to commit the

crime before being approached by a government agent. See id. (citing United

States v. Cecil, 96 F.3d 1344, 1348 (10th Cir. 1996), cert. denied, ___U.S.___,


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117 S. Ct. 987 (1997)).

      The government argues that this case is distinguishable from our prior cases

because Defendant was not entitled to an entrapment instruction as a matter of

law. Because our careful review of the record reveals conflicting evidence

regarding the entrapment issue, we conclude that the jury properly received an

instruction on entrapment. See Young, 954 F.2d at 616. 1

      In this case, the court gave the following jury instruction on entrapment:

             The defendant, Manuel Gama, asserts as a defense that he was
      entrapped by the government through its agent to commit the crime
      of possession of a controlled substance with intent to distribute that
      is alleged of [sic] the indictment. A defendant may not be convicted
      of a crime if that person was entrapped by the government to do the
      acts charged.

             A person is entrapped when that person has no previous intent
      or disposition or willingness to commit the crime charged and is
      induced or persuaded by a government agent to commit the offense.

             A person is not entrapped when that person has a previous
      intent or disposition or willingness to commit the crime charged and
      the government agent merely provides the opportunity to commit the
      offense.

             In determining the question of entrapment, the jury should
      consider all of the evidence received in this case concerning the
      intentions and disposition of the defendant before encountering the
      government agent as well as the nature and the degree of the


      1
         We note that the government’s objection to the entrapment instruction is
untimely. Because the government did not object to the entrapment instruction at trial
and both parties presented evidence on entrapment, the issue was properly submitted to
the jury. See United States v. Brown, 925 F.2d 1301, 1303-04 (10th Cir. 1991).

                                           -3-
       inducement or persuasion provided by the agent.

R., Vol. 1, Jury Instr. No. 33. This instruction correctly advises the jury of the

elements of an entrapment defense. However, it does not inform the jury that the

government bears the burden of proving beyond a reasonable doubt that

Defendant was not entrapped. See Duran, 133 F.3d at 1330-31; Young, 954 F.2d

at 616. The instruction states that Defendant “asserts [entrapment] as a defense.”

R., Vol. I, Jury Instr. No. 33. This language presents the same problem that we

identified in Duran. 2 See Duran, 133 F.3d at 1327-28, 1331. In Duran, we held

that because

       the court presented entrapment “as a defense” asserted by the
       defendant and failed to tell the jury either that lack of entrapment had
       become an element of the crime or that the government bears the
       burden of proving lack of entrapment once the defendant has made
       an initial showing on the defense,

id. at 1331, a reasonable jury might infer that the defendant bore the burden of

proof on entrapment. Like the affirmative defense instructions in Duran and

United States v. Corrigan, 548 F.2d 879, 882-83 (10th Cir. 1977), the entrapment

instruction in this case “‘could easily be taken to mean that since . . . [D]efendant

raised the issue, it is his burden to prove it to the jury’s satisfaction.’” Duran,

133 F.3d at 1331 (quoting Corrigan, 548 F.2d at 883). Neither the court’s


       2
          The record reveals that the language and content of the entrapment instruction in
this case is identical in all material respects to the instruction in Duran. See Duran, 133
F.3d at 1327-28.

                                            -4-
entrapment instruction nor the instructions as a whole “contradict[s] this

potential, incorrect interpretation.” Id. at 1332. The district court’s instructions

did not clarify for the jury whether the government was required to prove

predisposition and lack of inducement or whether Defendant was required to

prove no predisposition and government inducement. See id. Therefore, a

reasonable jury might conclude that the burden rested on Defendant to prove his

affirmative defense. See id.; Corrigan, 548 F.2d at 883-84. Accordingly, we hold

that the district court’s entrapment instruction was erroneous.

      We have repeatedly held that it is preferable to clearly instruct a jury that

the burden is on the government to prove no entrapment. See United States v.

Smegal, 772 F.2d 659, 660-61 (10th Cir. 1985); Martinez, 749 F.2d at 605.

However, we also have held that the failure to include a specific statement on the

burden of proof is not reversible error if the instructions as a whole adequately

inform the jury that “before the jury can convict, it must find beyond a reasonable

doubt that there was no entrapment,” Duran, 133 F.3d at 1332, or that the

defendant was predisposed to commit the offense. See Smegal, 772 F.2d at 660-

61; Martinez, 749 F.2d at 606. Therefore, we must examine the instructions in

this case as a whole to determine if they cure the error by sufficiently notifying

the jury of the government’s burden of proof on entrapment. See Martinez, 749

F.2d at 605-06.


                                          -5-
      Our previous conclusions that flawed entrapment instructions were not

reversible error rested on a determination in each case that the jury instructions as

a whole essentially cured the error because those instructions, in various forms,

did not mislead the jury and required the government to prove beyond a

reasonable doubt all of the elements in that case. See Smegal, 772 F.2d at 660-

61; Martinez, 749 F.2d at 606; Gurule, 522 F.2d at 25. In this case, the

instructions as a whole do not remedy the erroneous entrapment instruction. No

instruction indicates that the jury could not convict unless it believed beyond a

reasonable doubt that the defendant was not entrapped. See Duran, 133 F.3d at

1332. The entrapment instruction does not mention the government’s burden of

proof beyond a reasonable doubt. The government concedes that “neither the

entrapment instruction nor the general burden of proof instructions . . . [links] the

government’s burden of proof to [D]efendant’s affirmative defense of entrapment,

or [to] the underlying issue of [D]efendant’s predisposition.” Appellee’s Br. at

21. Neither the general instructions articulating that it is the government’s burden

to prove the elements of a crime beyond a reasonable doubt, see R., Vol. I, Jury

Instr. Nos. 4, 20, nor the specific instructions stating that the government must

prove beyond a reasonable doubt three elements for the jury to find Defendant

guilty, see id. at Nos. 23, 25, 26, nor the instruction explaining the “beyond a

reasonable doubt” standard, see id. at No. 5, cures the infirmity in the entrapment


                                          -6-
instruction. See Corrigan, 548 F.2d at 882. Further, nowhere in the instructions

did the court explicitly or implicitly state that the government must prove beyond

a reasonable doubt that Defendant was disposed to commit the crime. That

Defendant must have knowingly or intentionally possessed the cocaine, intended

to distribute cocaine, or knowingly aided or abetted the commission of that crime,

see R., Vol. I, Jury Instr. Nos. 23, 25, 29, does not mean that he was predisposed

to do so.

      The government contends that any error in the entrapment instruction was

harmless because there was overwhelming evidence of predisposition and meager

evidence of inducement. This argument is inapposite to the issue at hand. The

Supreme Court has held that a criminal conviction must rest on a jury

determination that the accused is guilty beyond a reasonable doubt of every

element of the crime charged. See United States v. Gaudin, 515 U.S. 506, 511

(1995); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993). It is also undisputed

that “[t]he prosecution bears the burden of proving all elements of the offense

charged.” Sullivan, 508 U.S. at 277-78. Recently, we stated that “when a

defendant has presented sufficient evidence to raise the issue of entrapment for

the jury, proof that the defendant was not entrapped effectively becomes an

element of the crime.” Duran, 133 F.3d at 1331. Because we have determined

that a reasonable jury might have believed that Defendant was saddled with the


                                         -7-
burden of proof on entrapment, and because we have concluded that the

instructions as a whole do not cure the deficiency in the entrapment instruction,

we hold that the court’s failure to instruct on the government’s entrapment burden

of proof is a structural error. See Sullivan, 508 U.S. at 280-82; United States v.

Wiles, 102 F.3d 1043, 1056-61 (10th Cir. 1996), reh’g granted in part, 106 F.3d

1516 (10th Cir.), cert. denied, ___U.S.___, 118 S. Ct. 363 (1997). The court

deprived Defendant of a fundamental right and a fair trial by possibly shifting the

burden of proof on entrapment to Defendant and by “allow[ing] the jury to reach a

conviction without requiring the government to prove all of the elements in the

case beyond a reasonable doubt.” Duran, 133 F.3d at 1334; see Sandstrom v.

Montana, 442 U.S. 510, 521 (1979); see also Bollenbach v. United States, 326

U.S. 607, 614 (1946) (“[T]he question is not whether guilt may be spelt out of a

record, but whether guilt has been found by a jury according to the procedures

and standards appropriate for criminal trials in the federal courts.”). Accordingly,

we are precluded from analyzing the court’s error by the harmless error standard,

and we reverse Defendant’s conviction and remand for a new trial. See Sullivan,

508 U.S. at 283-84. Because we are reversing and remanding on this issue, we

decline to address Defendant’s second argument that the court committed

reversible error in failing to instruct the jury that the entrapment defense also




                                          -8-
applied to the aiding and abetting charge. 3

       REVERSED and REMANDED.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




       3
         The entrapment instruction stated only that Defendant “asserts as a defense that
he was entrapped by the government through its agent to commit the crime of possession
of a controlled substance with intent to distribute as charged of [sic] the indictment.” R.,
Vol. I, Instr. No. 33.

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