     Case: 17-50788      Document: 00514657835         Page: 1    Date Filed: 09/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                    No. 17-50788                           FILED
                                  Summary Calendar                 September 26, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEREMIAH YBARRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:16-CR-523-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jeremiah Ybarra appeals the jury’s verdict that he was guilty of aiding
and abetting possession with intent to distribute five grams or more of
methamphetamine. He challenges the sufficiency of the evidence supporting
the jury’s finding that he was not entrapped by the efforts of a government
informant and an undercover officer.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-50788

      Where entrapment is at issue, the Government must prove beyond a
reasonable doubt that the defense does not apply. Jacobson v. United States,
503 U.S. 540, 548-49 (1992). There are two elements: government inducement
of the crime and a lack of predisposition on the part of the defendant. Mathews
v. United States, 485 U.S. 58, 63 (1988).       Where, as here, the jury was
instructed on entrapment and rejected the defense, this court views the facts
in the light most favorable to the verdict and will reverse only if no rational
jury could have found either lack of government inducement or the defendant’s
predisposition to commit the crime. See United States v. Reyes, 239 F.3d 722,
739 (5th Cir. 2001). Thus, even assuming government inducement here, we
will affirm Ybarra’s guilty verdict if there was sufficient evidence for the jury
to find that he was predisposed to commit the offense. See Mathews, 485 U.S.
at 63; Reyes, 239 F.3d at 739. The determination depends on whether he was
an “unwary innocent” or an “unwary criminal who readily availed himself of
the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63 (internal
quotation marks and citations omitted).
      According to Ybarra, he was not predisposed but was an unwary
innocent because he did not receive any financial benefit from arranging the
drug buy and he resisted efforts by the confidential informant and the
undercover officer to get him to participate. Ybarra argues that the informant
and the undercover officer took advantage of his drug addiction and caused
him to relapse and return to drug activity. He also relies on the Government’s
use of his close childhood friend, the informant, to induce his participation.
      The majority of Ybarra’s arguments are supported solely by his own
testimony, which provided the only evidence that a close childhood friend who
was a government informant instigated Ybarra’s participation in the drug
offense by playing the “family card,” that Ybarra initially hesitated before



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                                 No. 17-50788

getting involved, and that he had no financial motive for participating. The
uncorroborated testimony of a defendant, by itself, is insufficient to overcome
the jury’s verdict and establish entrapment as a matter of law because the jury
is “entitled to disbelieve him . . . and so find for the Government on the issue
of guilt.” Masciale v. United States, 356 U.S. 386, 388 (1958); see also United
States v. Mora, 994 F.2d 1129, 1137 (5th Cir. 1993) (“Generally speaking, a
defendant’s testimony cannot by itself establish entrapment as a matter of law
because, absent unusual circumstances, the jury is almost always entitled to
disbelieve that testimony.”).
      Moreover, even assuming a family friend working as government
informant repeatedly asked Ybarra to commit the offense, neither this “nor any
other court has held that inducement-through-friendship, standing alone, is
sufficient to find entrapment as a matter of law.” Reyes, 239 F.3d at 741. We
also note that the reason Ybarra’s friend wanted help arranging the drug
deal—so that the friend could gain recognition as a drug dealer—might be
compelling to an unwary criminal but would not be compelling to an unwary
innocent person.     See Mathews, 485 U.S. at 63.     Thus, the nature of the
inducement also weighs in favor of finding predisposition. See Reyes, 239 F.3d
at 739.
      Ybarra’s suggestion that he participated in the offense because the
undercover officer and the informant took advantage of his weakness as a drug
addict and caused him to relapse is undermined by the testimony of his
probation officer that Ybarra was clean at the time of the instant offense on
July 29, 2016. Indeed, according to the probation officer, Ybarra remained
clean from November 2015 through approximately October 2016—months
after his relationship with the undercover officer ended.




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                                 No. 17-50788

      Importantly, this is not a case where the record was “devoid of evidence
that [the defendant] had ever shown an interest or willingness to participate
in a drug deal before he met [the government informant].” United States v.
Theagene, 565 F.3d 911, 920 (5th Cir. 2009) (internal quotation marks and
citation omitted). Instead, Ybarra’s prior drug trafficking conviction indicated
that he was someone willing to participate in a drug deal and that he was
knowledgeable and experienced in that area, both of which supported the jury’s
finding of predisposition. See Reyes, 239 F.3d at 739. The prior conviction for
a similar crime was “strongly relevant to the issue of predisposition.” United
States v. Parrish, 736 F.2d 152, 156 (5th Cir. 1984).
      The jury also heard evidence that Ybarra was eager to participate in the
offense: a recorded phone call between Ybarra and the undercover officer
reflected that Ybarra was offered the chance to walk away from the deal, but
he insisted on brokering it. See Reyes, 239 F.3d at 722. Additionally, upon his
arrest, Ybarra further demonstrated knowledge and experience with drug
dealing in his interviews with law enforcement. See id. at 739. His willingness
to take the risk of engaging in drug activity while on supervised release
similarly reflected a predisposition toward the offense. See id.
      For all of these reasons, the evidence was sufficient for a rational jury to
find beyond a reasonable doubt that Ybarra was predisposed to commit the
drug offense and that, therefore, he was not entrapped. See Reyes, 239 F.3d at
739. The judgment of the district court is AFFIRMED.




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