* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 97-4109

v. (D.C. No. 96-CR-192-3) MANUEL GAMA, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY , McKAY , and BRISCOE , Circuit Judges.

Defendant was convicted for possession of cocaine w ith intent to distribute and for aiding and abetting in the commission of th at crime in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. On appeal, Defendant asserts that his convictions must be reversed and his case remanded for a new trial because the district court made two errors relating to the jury instructions on the defense of entrapment. Defendant first argues that the court committed rev ersible error in failing to-2-

instruct the jury on the government’s burden of pro ving beyond a reasonable doubt that Defendant was not entrapped. Because De fendant objected to the entrapment instruction at trial, we review de novo whether the court erred in failing to instruct on the government’s burden of p roof on entrapment. See United States v. Pappert , 112 F.3d 1073, 1076 (10th Cir. 1997). We must determine whether the instructions, taken as a whol e, adequately informed the jury of the prosecution’s burden of proof on the entrapment issue. See United States v. Martinez , 749 F.2d 601, 605-06 (10th Cir. 1984); United States v. Gurule , 522 F.2d 20, 25 (10th Cir. 1975), cert. denied , 425 U.S. 976 (1976). A defendant must raise the defense of entrapment bypresenting evidence that (1) he was induced by a government agent to co mmit the offense, and (2) he was not predisposed to commit that offense. See United States v. Young , 954 F.2d 614, 616 (10th Cir. 1992). Once a defendant h as presented sufficient evidence to create a question of fact for the jury, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was not entrapped. See United States v. Duran , 133 F.3d 1324, 1330 (10th Cir. 1998) (citing Young , 954 F.2d at 616). We have held that to meet its burden of proof, the government must prove at least that the defenda nt was disposed to commit the crime before being approached by a government agent . See id. (citing United States v. Cecil , 96 F.3d 1344, 1348 (10th Cir. 1996), cert. denied , ___U.S.___,1 We note that the government’s objection to the entrapment instruction is

untimely. Because the government did not object to the entrapment instruction at trial and both parties presented evidence on entrapment, the issue was properly submitted to the jury. SeeUnited States v. Brown , 925 F.2d 1301, 1303-04 (10th Cir. 1991). -3- 117 S. Ct. 987 (1997)). The government argues that this case is distinguish able from our prior cases because Defendant was not entitled to an entrapmentinstruction as a matter of law. Because our careful review of the record reve als conflicting evidence regarding the entrapment issue, we conclude that th e jury properly received an instruction on entrapment. See Young , 954 F.2d at 616. 1 In this case, the court gave the following jury ins truction on entrapment: The defendant, Manuel Gama, asserts as a defense th at he was entrapped by the government through its agent to co mmit the crime of possession of a controlled substance with intentto distribute that is alleged of [sic] the indictment. A defendant may not be convicted of a crime if that person was entrapped by the gove rnment to do the acts charged. A person is entrapped when that person has no previ ous intent or disposition or willingness to commit the crime c harged and is induced or persuaded by a government agent to commi t the offense. A person is not entrapped when that person has a pr evious intent or disposition or willingness to commit the crime charged and the government agent merely provides the opportunity to commit the offense. In determining the question of entrapment, the juryshould consider all of the evidence received in this case concerning the intentions and disposition of the defendant before encountering the government agent as well as the nature and the degr ee of the2The record reveals that the language and content of the entrapment instruction in

this case is identical in all material respects to the instruction in Duran . SeeDuran, 133 F.3d at 1327-28. -4- inducement or persuasion provided by the agent. R., Vol. 1, Jury Instr. No. 33. This instruction c orrectly advises the jury of the elements of an entrapment defense. However, it doe s not inform the jury that the government bears the burden of proving beyond a rea sonable doubt that Defendant was not entrapped. See Duran , 133 F.3d at 1330-31; Young , 954 F.2d at 616. The instruction states that Defendant “ass erts [entrapment] as a defense.” R., Vol. I, Jury Instr. No. 33. This language pres ents the same problem that we identified in Duran

. 2 See Duran , 133 F.3d at 1327-28, 1331. In Duran , we held that because the court presented entrapment “as a defense” asserted by the defendant and failed to tell the jury either that l ack of entrapment had become an element of the crime or that the governme nt bears the burden of proving lack of entrapment once the defen dant has made an initial showing on the defense, id. at 1331, a reasonable jury might infer that the de fendant bore the burden of proof on entrapment. Like the affirmative defense instructions in Duranand United States v. Corrigan , 548 F.2d 879, 882-83 (10th Cir. 1977), the entrap ment instruction in this case “‘could easily be taken to mean that since . . . [D]efendant raised the issue, it is his burden to prove it to t he jury’s satisfaction.’” Duran , 133 F.3d at 1331 (quoting Corrigan , 548 F.2d at 883). Neither the court’s-5-

entrapment instruction nor the instructions as a wh ole “contradict[s] this potential, incorrect interpretation.” Id. at 1332. The district court’s instructions did not clarify for the jury whether the governmentwas required to prove predisposition and lack of inducement or whether De fendant was required to prove no predisposition and government inducement. See id. Therefore, a reasonable jury might conclude that the burden rest ed on Defendant to prove his affirmative defense. See id. ; Corrigan , 548 F.2d at 883-84. Accordingly, we hold that the district court’s entrapment instruction wa s erroneous. We have repeatedly held that it is preferable to cl early instruct a jury that the burden is on the government to prove no entrapm ent. See United States v. Smegal , 772 F.2d 659, 660-61 (10th Cir. 1985); Martinez , 749 F.2d at 605. However, we also have held that the failure to incl ude a specific statement on the burden of proof is not reversible error if the instructions as a whole adequately inform the jury that “before the jury can convict, it must find beyond a reasonable doubt that there was no entrapment,” Duran , 133 F.3d at 1332, or that the defendant was predisposed to commit the offense. S ee Smegal , 772 F.2d at 660- 61; Martinez , 749 F.2d at 606. Therefore, we must examine the instructions in this case as a whole to determine if they cure the error by sufficiently notifying the jury of the government’s burden of proof on entrapment. See Martinez , 749 F.2d at 605-06.-6-

Our previous conclusions that flawed entrapment ins tructions were not reversible error rested on a determination in each case that the jury instructions as a whole essentially cured the error because those i nstructions, in various forms, did not mislead the jury and required the government to prove beyond a reasonable doubt all of the elements in that case. See Smegal , 772 F.2d at 660- 61; Martinez , 749 F.2d at 606; Gurule , 522 F.2d at 25. In this case, the instructions as a whole do not remedy the erroneous entrapment instruction. No instruction indicates that the jury could not convi ct unless it believed beyond a reasonable doubt that the defendant was not entrapp ed. See Duran , 133 F.3d at 1332. The entrapment instruction does not mention the government’s burden of proof beyond a reasonable doubt. The government co ncedes that “neither the entrapment instruction nor the general burden of pr oof instructions . . . [links] the government’s burden of proof to [D]efendant’s affirmative defense of entrapment, or [to] the underlying issue of [D]efendant’s predi sposition.” Appellee’s Br. at 21. Neither the general instructions articulating that it is the government’s burden to prove the elements of a crime beyond a reasonabl e doubt, see R., Vol. I, Jury Instr. Nos. 4, 20, nor the specific instructions st ating that the government must prove beyond a reasonable doubt three elements for the jury to find Defendant guilty, see id. at Nos. 23, 25, 26, nor the instruction explaining the “beyond a reasonable doubt” standard, see id. at No. 5, cures the infirmity in the entrapment-7-

instruction. See Corrigan , 548 F.2d at 882. Further, nowhere in the instruc tions did the court explicitly or implicitly state that t he government must prove beyond a reasonable doubt that Defendant was disposed to c ommit the crime. That Defendant must have knowingly or intentionally poss essed the cocaine, intended to distribute cocaine, or knowingly aided or abette d the commission of that crime,

see R., Vol. I, Jury Instr. Nos. 23, 25, 29, does not mean that he was predisposed to do so. The government contends that any error in the entrapment instruction was harmless because there was overwhelming evidence of predisposition and meager evidence of inducement. This argument is inapposit e to the issue at hand. The Supreme Court has held that a criminal conviction m ust rest on a jury determination that the accused is guilty beyond a r easonable doubt of every element of the crime charged. See United States v. Gaudin , 515 U.S. 506, 511 (1995); Sullivan v. Louisiana , 508 U.S. 275, 277-78 (1993). It is also undisput ed that “[t]he prosecution bears the burden of proving all elements of the offense charged.” Sullivan , 508 U.S. at 277-78. Recently, we stated that “wh en a defendant has presented sufficient evidence to rais e the issue of entrapment for the jury, proof that the defendant was not entrappe d effectively becomes an element of the crime.” Duran , 133 F.3d at 1331. Because we have determined that a reasonable jury might have believed that Def endant was saddled with the-8-

burden of proof on entrapment, and because we have concluded that the instructions as a whole do not cure the deficiency in the entrapment instruction, we hold that the court’s failure to instruct on the government’s entrapment burden of proof is a structural error. See Sullivan , 508 U.S. at 280-82; United States v. Wiles , 102 F.3d 1043, 1056-61 (10th Cir. 1996), reh’g gr anted in part , 106 F.3d 1516 (10th Cir.), cert. denied , ___U.S.___, 118 S. Ct. 363 (1997). The court deprived Defendant of a fundamental right and a fai r trial by possibly shifting the burden of proof on entrapment to Defendant and by “ allow[ing] the jury to reach a conviction without requiring the government to prov e all of the elements in the case beyond a reasonable doubt.” Duran , 133 F.3d at 1334; see Sandstrom v.
Montana , 442 U.S. 510, 521 (1979); see also Bollenbach v. United States , 326 U.S. 607, 614 (1946) (“[T]he question is not whethe r guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedures and standards appropriate for criminal trials in th e federal courts.”). Accordingly, we are precluded from analyzing the court’s error b y the harmless error standard, and we reverse Defendant’s conviction and remand fo r a new trial. See Sullivan , 508 U.S. at 283-84. Because we are reversing and r emanding on this issue, we decline to address Defendant’s second argument thatthe court committed reversible error in failing to instruct the jury th at the entrapment defense also3 The entrapment instruction stated only that Defendant “asserts as a defense that

he was entrapped by the government through its agent to commit the crime of possession of a controlled substance with intent to distribute as charged of [sic] the indictment.” R., Vol. I, Instr. No. 33. -9- applied to the aiding and abetting charge. 3
REVERSED and REMANDED.

Entered for the Court

Monroe G. McKay Circuit Judge