                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 23 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10254

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00164-KJD-
                                                 GWF-1
  v.

DEONTE REED,                                     MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted November 17, 2011
                             San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       After a guilty jury verdict, the district court sentenced Deonte Reed to 240

months’ imprisonment for conspiracy to interfere with commerce by robbery and

180 months for conspiracy to possess cocaine with intent to distribute, to be served

concurrently, and 60 months for possession of a firearm in furtherance of a drug



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
trafficking crime and aiding and abetting, to be served consecutive to the other

counts. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Reed contends that the trial court erred in denying his motion in limine and

incorrectly admitting evidence of Reed’s subsequent criminal activity. When a

defendant asserts entrapment as a defense, the government must prove beyond a

reasonable doubt that either “‘(1) the defendant was predisposed to commit the

crime before being contacted by government agents; or (2) the defendant was not

induced by the government agents to commit the crime.’” United States v. Mejia,

559 F.3d 1113, 1116 (9th Cir. 2009) (quoting 9th Cir. Crim. Jury Instr. 6.2 (2003)).

      To prove predisposition, the prosecution must show that the defendant was

disposed to commit the crime before being approached by the agents. United

States v. Poehlman, 217 F.3d 692, 703 (9th Cir. 2000). We look to five factors in

the predisposition determination: (1) the character or reputation of the defendant,

including any prior criminal record, (2) the party who made the initial suggestion,

(3) whether profit was a motive, (4) evidence of reluctance by the defendant, and

(5) the nature of the government’s inducement. United States v. Williams, 547

F.3d 1187, 1198 (9th Cir. 2008). “[T]he well-settled rule that character must be

considered is tantamount to a holding that it is an ‘essential element’ of the defense

[of entrapment].” United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998).


                                          2
When character of a person is an essential element of a charge or defense, the

Federal Rules of Evidence allow proof to be made by specific instances of that

person’s conduct. Fed. R. Evid. 405(b).

      With one exception (the May 5, 2008, burglary in which Reed stole the gun

that he planned to use in this case), the evidence of Reed’s criminal behavior was

relevant to the issue of his character for purposes of predisposition. These specific

instances of criminal conduct all occurred after the U.S. Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”) set up the undercover store front, and

most occurred after Reed met the confidential informant, but before he was

approached with the fictitious stash house plan. This conduct is independent of the

government actions, and goes to prove Reed’s mental state before the stash house

plan was presented to him.

      Federal Rule of Evidence 404(b) provides that evidence of other crimes,

wrongs, or acts is admissible to show intent, preparation, or plan. Fed. R. Evid.

404(b). Although the May 2008 burglary was not likely admissible to prove

predisposition because it occurred after the government suggested and began

planning the fictitious stash house robbery, it was admissible to show preparation

or planning under Federal Rule of Evidence 404(b). Therefore, it does not appear




                                          3
that the district court abused its discretion in denying the motion in limine and

admitting evidence of Reed’s criminal activities.

         Reed next contends that the trial court erred in allowing Jury Instruction No.

8 to be given, because it “supports several instances in which the Court simply

interpreted the law incorrectly,” and because it is “blatantly prejudicial to Reed.”

When a jury instruction is at issue, “prejudicial error results when, looking to the

instructions as a whole, the substance of the applicable law was not fairly and

correctly covered.” Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1092 (9th

Cir. 2007) (internal quotation marks omitted). In other words, the relevant inquiry

is whether, as a whole, the instructions were misleading or inadequate to guide the

jury’s deliberation. See United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.

1999).

         The district court had properly admitted evidence of specific instances of

Reed’s criminal conduct. Jury Instruction No. 8 was a limiting instruction,

requiring the jury to use certain admissible evidence only as it related to

preparation, plan, or predisposition. The instruction was not prejudicial and the

district court did not abuse its discretion in its formulation of Jury Instruction No.

8.

         AFFIRMED.


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