                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 18 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 07-50576

             Plaintiff - Appellee,               D.C. No. CR-05-00107-JVS-2

  v.
                                                 MEMORANDUM *
FRANCISCO RODRIGUEZ, aka Seal B;
Trigger,

             Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                    Argued and Submitted December 10, 2009
                              Pasadena, California

Before: HALL and SILVERMAN, Circuit Judges, and CONLON, ** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Suzanne B. Conlon, U.S. District Judge for the
Northern District of Illinois, sitting by designation.
      Francisco Rodriguez appeals his convictions for conspiracy to violate the

Racketeer Influenced and Corrupt Organizations Act in violation of 18 U.S.C. §

1962(d) and for conspiracy to commit murder in aid of racketeering activity in

violation of 18 U.S.C. § 1959(a)(5). He alleges, inter alia, that the district court

erred by instructing the jury on entrapment under California law as opposed to

federal law. We have jurisdiction under 28 U.S.C. § 1291. We agree, and we

reverse Rodriguez’s conviction and remand for a new trial.

      The government concedes that if an entrapment jury instruction should have

been given, the district court erred by giving the California state entrapment

instruction instead of an instruction based on federal law; the two are markedly

different. The government nonetheless contends that the error was harmless

because, it argues, Rodriguez was not entitled to an entrapment instruction at all.

      To be entitled to an entrapment instruction, “the defendant need present only

some evidence, which may be of doubtful credibility.” United States v. Gurolla,

333 F.3d 944, 955 (9th Cir. 2003) (internal citations omitted). Other cases refer to

the defendant’s burden to present only “slight evidence.” United States v.

Marbella, 73 F.3d 1508, 1512 (9th Cir. 1996). We agree with the district court that

there was sufficient evidence to warrant the giving of an entrapment instruction.

      The evidence showed that prior to events in issue, Rodriguez was only


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loosely affiliated with the West Myrtle gang. After Rodriguez’s friend was shot at

a party the government prevailed on Navarro, a confidential government informant,

to approach Rodriguez. Navarro demanded that Rodriguez attend gang meetings to

discuss retaliation under the threat of physical violence. Navarro specifically told

Rodriguez that his friend’s mother “want[ed] blood.” Navarro also instructed

Rodriguez not to talk to police and that retaliation should be handled by the gang.

And Navarro testified that he never heard of any plan of retaliation involving

Rodriguez, or anyone else, prior to his orchestration of gang meetings on the

subject. The district court correctly found that these facts were enough to put

entrapment in issue. However, the district court then gave the California, rather

than the federal, entrapment instruction. This instruction significantly misstated

the burden of proof regarding entrapment in a federal trial. Jacobson v. United

States, 503 U.S. 540, 549 (1992); United States v. Poehlman, 217 F.3d 692, 698

(9th Cir. 2000). The government concedes that if an entrapment instruction should

have been given at all, the giving of the California instruction was reversible error.

We reverse the conviction and remand for a new trial.

      Because we are remanding this case, we address one additional evidentiary

issue that may recur at a retrial. The district court excluded the testimony of

Navarro’s former girlfriend, Elizabeth Robles, regarding Navarro’s heavy heroin


                                          3
use during the period of time about which he testified, use amounting to

intoxication, which supposedly affected his ability to perceive events. The district

court reasoned that under Federal Rule of Evidence 608(b), Robles’s testimony

would impermissibly impeach Navarro’s character for truthfulness with specific

instances of conduct i.e., his drug use. But Robles’s testimony called into question

Navarro’s ability to perceive and remember the events about which he testified.

Thus, this testimony was admissible as bearing on his credibility. See Silva v.

Brown, 416 F.3d 980, 986–87 (9th Cir. 2005); Benn v. Lambert, 283 F.3d 1040,

1056 (9th Cir. 2002).

      We decline to reach Rodriguez’s additional claims in light of the remand for

new trial on other grounds.

      REVERSED and REMANDED.




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