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Docket Number

No. 75-1726.

Attorney(S)

Matthew N. Lees (argued), San Diego, Cal., for appellant. Stephen W. Peterson, Asst. U.S. Atty. (argued), San Diego, Cal., Terry J. Knoepp, U.S. Atty., Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., on the brief, for plaintiff-appellee.

Judges

Benjamin Cushing Duniway
Walter Raleigh Ely
Dick Yin Wong

Acts

Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A
Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Attempt And Conspiracy

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Smart Summary

Summary of Opinion: United States v. Meril Martinez Rangel, No. 75-1726 (9th Cir. Mar. 29, 1976)

Factual and Procedural Background

Appellant Meril Martinez Rangel was convicted on both counts of an indictment: (1) conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 846; and (2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He appealed his convictions to the United States Court of Appeals for the Ninth Circuit. The panel included Judges Duniway and Ely, with Judge Dick Yin Wong sitting by designation. The opinion was filed March 29, 1976; rehearing and rehearing en banc were denied May 17, 1976.

Legal Issues Presented

Whether the informant who testified against appellant should have been required to divulge his true name, home address, and phone number on the witness stand.
Whether hearsay statements testified to by the informant were admissible (specifically hearsay offered to show disposition to commit the offense in response to an entrapment defense).
Whether the defense of entrapment should have been granted as a matter of law.

Arguments of the Parties

Appellant's Arguments

The informant who testified should have been required to disclose his true name, home address, and phone number on the witness stand.
Hearsay testimony presented by the informant was inadmissible (offered to show disposition to commit the offense in response to an entrapment defense).
The entrapment defense should have been decided in appellant's favor as a matter of law.

Government's (Appellee's) Position, as presented in the opinion

The government represented that the informant's life had been threatened and that the informant had relocated his family; the government made this representation to justify nondisclosure of the informant's identity and provided supporting evidence in an in camera hearing.
With respect to entrapment, the record contained evidence (as reviewed by the court) demonstrating that appellant was not induced or coerced by any government agent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968)	Disclosure of an informant's identity—court noted that Smith "does not establish a rigid rule of disclosure" and must be balanced against factors such as witness safety.	Cited to show that disclosure is not absolute; court relied on balancing and other authorities to uphold nondisclosure here.
United States v. Cosby, 500 F.2d 405, 407 (9th Cir. 1974)	Illustrates that nondisclosure may be appropriate where the government adequately represents danger to the informant's life.	Court compared the instant case to Cosby, noting the government's adequate representation and supporting in camera evidence as justifying nondisclosure.
United States v. Ellis, 468 F.2d 638 (9th Cir. 1972)	Authority in the same vein as Cosby on informant disclosure issues.	Used to support the proposition that disclosure is not rigid and may be withheld when safety concerns are substantiated.
United States v. McClain, 531 F.2d 431 (9th Cir. 1976)	Recent holding that it is error to admit hearsay testimony offered to show disposition to commit the offense in response to an entrapment defense when objection is made.	Court recognized McClain's rule but distinguished the instant case because the hearsay's source (appellant's brother Ernesto) was disclosed and the defense had opened the matter; the court also concluded that any error would be harmless.
United States v. Gibson, 446 F.2d 719 (10th Cir. 1971)	Defines entrapment as a matter of law: exists only when undisputed testimony patently shows an otherwise innocent person was induced by government trickery, persuasion, or fraud.	Cited to explain that entrapment as a matter of law requires undisputed testimony; because the facts here were disputed, entrapment as a matter of law did not apply.

Court's Reasoning and Analysis

The court addressed each of appellant's contentions in turn.

1. Informant Identity Disclosure: The court noted that Smith v. Illinois does not establish a rigid rule requiring disclosure of an informant's identity and must be considered against countervailing factors such as the informant's personal safety. Relying on Ninth Circuit authority (Cosby, Ellis), the court accepted the government's representation that the informant's life had been threatened and that the informant relocated his family. The court further relied on evidence presented at an in camera hearing, which satisfied the trial judge that the government's representations were not groundless. The appellate court reviewed the in camera transcript and concluded the trial court's refusal to order disclosure was not erroneous.

2. Admissibility of Hearsay Relating to Entrapment: The court acknowledged its recent holding in United States v. McClain that admitting hearsay of the sort challenged here is error when objection is made. The court distinguished the present case from McClain because the source of the hearsay—appellant's brother Ernesto—was identified and the brother was called as a defense witness. The defense had opened the issue through its cross-examination and elicited testimony showing Ernesto's involvement. Given these circumstances, the court doubted appellant could legitimately complain about the admission. The court expressly stated it need not decide whether admission was erroneous under McClain; nevertheless, assuming arguendo the admission was error, the court held the error harmless under Fed.R.Crim.P. 52(a) because there was overwhelming evidence that appellant was not induced or coerced by any government agent.

3. Entrapment as a Matter of Law: The court explained, citing United States v. Gibson, that entrapment as a matter of law exists only when undisputed testimony makes it patently clear that an otherwise innocent person was induced by government trickery, persuasion, or fraud. Because the facts in this case were disputed, entrapment was properly submitted to the jury rather than resolved as a matter of law.

Holding and Implications

Holding: AFFIRMED.

Implications: The court affirmed appellant's convictions on both counts. The direct effect is that the trial convictions stand and were not disturbed on appeal. The opinion does not announce or purport to establish any new broad legal rule beyond the court's application of existing precedents; where potential error was identified (regarding hearsay), the court concluded any such error was harmless on the record before it.

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UNITED STATES OF AMERICA, APPELLEE, v. MERIL MARTINEZ RANGEL, APPELLANT.

OPINION

WONG, District Judge:

Appellant, Meril Martinez Rangel, was convicted on both counts of an indictment, the first charging him with conspiracy with other persons to possess heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 846; the second charging him with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

He appeals the conviction on three grounds: (1) that an informant who testified against appellant should have been required to divulge his true name, home address, and phone number on the witness stand; (2) that hearsay statements testified to by the informant were inadmissible; and (3) that the defense of entrapment should have been granted as a matter of law. Finding each of the appellant's contentions without merit, we affirm.

Appellant first claims that the informant who testified against him should have been required to divulge his true name, home address, and phone number on the witness stand. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Smith v. Illinois, however, "does not establish a rigid rule of disclosure, but rather discusses disclosure against a background of factors weighing conversely, such as personal safety of the witness." United States v. Cosby, 500 F.2d 405, 407 (9th Cir. 1974); United States v. Ellis, 468 F.2d 638 (9th Cir. 1972). In the instant case, as in Cosby, the government made an adequate representation that the informant's life had been threatened, causing him to relocate his family. Moreover, evidence adduced in the lower court's in camera hearing on this issue further satisfied the trial judge that the government's representations were not groundless. This Court has reviewed the transcript of the in camera proceeding and is not persuaded the trial court's ruling was erroneous.

Appellant next argues that the court improperly admitted hearsay to show disposition to commit the offense, in response to an entrapment defense. This Court has only recently held that it is error to admit such hearsay testimony to which objection was made. United States v. McClain, 531 F.2d 431 (9th Cir. 1976). It criticized certain Fifth Circuit cases which held that, "when a defendant sets up the defense of entrapment, the government can put a witness on the stand and have him testify that unknown informants, of unknown reliability, have told the witness, or have made reports to others that the witness has seen or been told about, that the defendant was dealing in narcotics . . . ." Id. at 435.

The case under consideration differs from the McClain case, as well as from the cases criticized in the McClain opinion. Here the source of the hearsay was disclosed; it was appellant's brother, Ernesto, who told the testifying informant that appellant dealt in narcotics. The brother, Ernesto, was called as a witness by the defense. He testified that he knew that the informant was dealing in narcotics and that he nevertheless told the informant to get in touch with his brother, the appellant. As is shown in the portion of the transcript quoted in the margin, the matter was opened up by the defense counsel. Under these circumstances, we doubt that appellant is in a position to complain. We need not decide, however, whether the admission of the evidence was error under our decision in McClain.

Such testimony developed from a response to a question asked of the informant in cross-examination by defense counsel:

"Q. That was your whole purpose in calling him [appellant] in the first place?

A. My purpose in calling him in the first place was the fact that I was told that he was dealing in narcotics, sir."

In redirect examination, the following transpired:

"Q. Okay. Now, you mentioned on cross examination that initially you had been told that Mr. Rangel was dealing in narcotics.

A. Yes, I was.

Q. All right. Who told you that?

A. His brother, Meril Rangel.

Q. Meril Rangel? What's his brother's name?

A. I mean — I'm sorry. Ernesto Rangel.

Q. That's the gentleman that you met in —

A. Yes, in Delano, California.

Q. That's where he is now?

A. Yes, as far as I know, he is.

Q. Now, when the brother told you this, this was in — while you were in Safford, Arizona; is that right?

A. Yeah, he told me while I was there in Safford. When I came out, I went up and talked to him in Delano, California. And he — At this time, he said he was going to get a hold of Meril and talk to Meril; that he was dealing primarily in marijuana.

Q. Now, by `he,' you're speaking about —

A. Ernesto.

Q. Ernesto was dealing primarily in marijuana?

A. Yes.

MR. LEES: Your Honor, I ask that that be stricken and taken outside the facts to the jury, based on hearsay.

MR. PETERSON: Your Honor, this is an entrapment case.

MR. LEES: But that has nothing to do with the hearsay.

THE COURT: Move to strike the hearsay? Let us proceed. I instruct the jury to disregard the last statement.

MR. PETERSON: This is with respect to —

THE COURT: Ernesto.

MR. PETERSON: All right.

Q. Now, what did Ernesto tell you about his brother, Meril Rangel?

A. He said that —

MR. LEES: Same objection, Your Honor."

The trial court eventually overruled this objection and informant was permitted to testify that Ernesto Rangel told him that the purpose of meeting with appellant was "to discuss cocaine and heroin." It should be noted, however, that no objection was made by defense counsel the first time the informant was asked who had told him that appellant was dealing in narcotics.

Assuming arguendo that it was error to admit the informant's hearsay testimony, such error was harmless, Fed.R. Crim.P. Rule 52(a). There was overwhelming evidence that Rangel was not induced by any government agent to commit the offense. Nor was there any evidence that Rangel was coerced by any government agent. We conclude that the admission of the hearsay was harmless.

Finally, appellant insists that the defense of entrapment should have been granted as a matter of law. Entrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent. United States v. Gibson, 446 F.2d 719 (10th Cir. 1971). In the case sub judice the facts were disputed and were therefore properly before the jury.

AFFIRMED.

UNITED STATES v. RANGEL