1Our conclusion that the district court’s charge to the jury was a proper statement of the

law makes it unnecessary for us to consider the government’s cross appeal of the district court’s

decision to instruct the jury on entrapment.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 95-50667 

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DAVID HERNANDEZ,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

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August 12, 1996

Before DAVIS, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

David Hernandez, also known as David Gonzalo, was convicted for conspiracy to distribute

heroin and distribution of heroin. Hernandez admitted his role in the sale of heroin to an

undercover agent, Gilbert Villareal; he had arranged a meeting between Villareal and Jose PerezSantos, the supplier of the heroin for the sale. His sole defense at trial was entrapment. His

attorney requested a jury instruction which emphasized that predisposition to commit the crime

must occur prior to any government involvement. See Jacobson v. United States, 503 U.S. 540,

112 S.Ct. 1535 (1992). The district court denied the proffered instruction and gave the pattern

jury instruction on entrapment. On appeal, Hernandez complains about both the correctness of the

jury instruction given by the district court and the denial of his requested instruction.1

Hernandez objected to the proposed jury charge on the grounds that it did not comport

with Jacobson. He wanted the jury instruction to more clearly state that the predisposition of the
 

2The Fifth Circuit pattern jury instruction given by the district court reads:

The defendant asserts that he was a victim of entrapment.

Where a person has no previous intent or purpose to violate the law, but

is induced or persuaded by law enforcement officers or their agents to commit a

crime, that person is a victim of entrapment, and the law as a matter of policy

forbids that person’s conviction in such a case.

On the other hand, where a person already has the readiness and

willingness to break the law, the mere fact that government agents provide what

appears to be a favorable opportunity is not entrapment. For example, it is not

entrapment for a government agent to pretend to be someone else and to

offer, either directly or through an informer or other decoy, to engage in an unlawful transaction.

If, then, you should find beyond a reasonable doubt from the evidence in the

case that, before anything at all occurred respecting the alleged offense

involved in this case, the defendant was ready and willing to commit a crime

such as charged in the indictment, whenever opportunity was afforded, and that

government officers or their agents did no more than offer the opportunity, then you

should find that the defendant is not a victim of entrapment.

On the other hand, if the evidence in the case should leave you with a

reasonable doubt whether the defendant had the previous intent or purpose to

commit an offense of the character charged, apart from the inducement or

persuasion of some officer or agent of the government, then it is your duty to

find the defendant not guilty.

The burden is on the government to prove beyond a reasonable doubt that

the defendant was not entrapped.

You are instructed that a paid informer is an “agent” of the government for

purposes of this instruction.

Fifth Circuit Pattern Jury Instructions § 1.28 (West 1990). Emphasis highlights the wording

2

defendant must be independent of government action. In Jacobson, the Supreme Court reversed a

conviction for ordering child pornography literature because the government failed to prove

predisposition, having directed attention at Jacobson for approximately two and one-half years in a

sting operation. Jacobson, 503 U.S. at 553, 112 S.Ct. at 1543. This court has interpreted

Jacobson to hold “that the government must prove at trial beyond a reasonable doubt that the

defendant was actually predisposed to commit the underlying crime absent the government’s role in

assisting such commission.” United States v. Byrd, 31 F.3d 1329, 1336 (5th Cir. 1994) (quoting

United States v. Aibejeris, 28 F.3d 97 (11th Cir. 1994), cert. denied, 115 S.Ct. 1432 (1995)). “We

believe the crucial holding of Jacobson is that predisposition must be independent of government

action.” Id.

Hernandez complains that the jury instruction does not adequately explain that the intent

must be previous to intervention by a government agent.2 He argues that the jury instructions left
Hernandez finds objectionable.

3

the jury with the impression that he was not entrapped if he lacked a predisposition when the

government agent first approached him and developed it later before the commission of the offense. 

Accordingly, Hernandez’ proposed jury instructions added the phrase “before contact with law

enforcement officers or their agents” to the paragraphs discussing readiness, willingness and intent

to violate the law.

We review challenged jury instructions for abuse of discretion and will not reverse if the

court’s charge, viewed in its entirety, is a correct statement of the law which clearly instructs jurors

as to the relevant principles of law. United States v. Allibhai, 939 F.2d 244, 251 (5th Cir. 1991),

cert. denied, 502 U.S. 702 (1992). In this case, the instruction given required that the defendant’s

predisposition to commit the crime must exist independently and prior to any government

inducement and repeated this requirement in several places. The jury instruction was a correct

statement of the law and clearly instructed the jury that it must find that the Hernandez was willing

to break the law even before government agents offered him a favorable opportunity to do so. 

Hernandez’ requested jury instruction on entrapment was also a correct statement of the law, but

the district court’s refusal to give the requested instruction was not an abuse of discretion. The

matter of predisposition was adequately covered by the charge given to the jury. See United States

v. Brown, 43 F.3d 618, 627 (11th Cir.) (upholding a virtually identical charge) cert. denied, 116

S.Ct. 309 (1995).

Hernandez also alleges that statements of the prosecution during closing argument impaired

his defense. His attorney attempted to argue that predisposition must be measured from the time

before Villareal first approached the defendant. The prosecutor objected that this was a

misstatement of the law. The court ordered the defense counsel to continue. Later the prosecutor

argued that predisposition did not have to exist prior to the time the government first approached

Hernandez. Appellant argues that since the jury instructions were not clear that predisposition
4

must exist prior to any government contact, the jury was probably left with the impression from the

prosector’s argument that it could be measured anytime up to the commission of the offense. 

This court, in United States v. Rubio, 834 F.2d 442 (5th Cir. 1988) stated that “when

looking beyond the charge itself to determine the adequacy of that charge, the focus must remain

on the words of the judge. We look to the record and the closing arguments to place the words of

the judge in context. The burden of giving proper instructions is on the Judge.” Id. at 447. As

explained above, the jury instructions given by the judge were proper. The erroneous statement by

the prosecutor does not require reversal.

 The judgment of the district court is AFFIRMED.

AFFIRMED.