F I L E D

United States Court of Appeals

Tenth Circuit

JAN 9 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SIMON DURAN,

Defendant-Appellant.

No. 96-4108

Appeal from the United States District Court

for the District of Utah

(D.C. No. 95-CR-221-001-J)

Wayne T. Dance, Assistant United States Attorney, Salt Lake City, Utah (Scott M.

Matheson, Jr., United States Attorney, and Brooke C. Wells, Assistant United

States Attorney, with him on the brief) for Plaintiff-Appellee.

C. Danny Frazier, Esq., Provo, Utah, for Defendant-Appellant.

Before BALDOCK and EBEL, Circuit Judges and MCWILLIAMS, Senior

Circuit Judge.

EBEL, Circuit Judge.

In this cocaine distribution case, the defendant relied on the affirmative

defense that he was entrapped by the undercover government agents and

government informant who negotiated a series of cocaine deals with him. During
1Because the jury found Duran guilty, we take the facts in the light most

favorable to the government. See United States v. Yoakam, 116 F.3d 1346, 1349

(continued...)

- 2 -

the defendant’s trial, it became clear that the jury was confused about the legal

contours of the entrapment defense. On appeal, the government concedes that the

court’s jury instructions on entrapment were plainly erroneous, and we agree. 

Furthermore, in the face of obvious confusion by the jury as to the entrapment

defense, it was plain error for the district court to respond to the jury’s requests

for clarification by simply referring the jury back to the initial defective jury

charge, which in fact was the source of the jury’s confusion. We reject, however,

the defendant’s additional contention that he was entitled to an acquittal as a

matter of law. Instead, we remand this case for a new trial.

I.

Defendant-appellant Simon Duran (“Duran”) was convicted on one count of

possession of a controlled substance with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(c), and 18 U.S.C. § 2. Duran’s arrest arose out of

a series of “controlled buys” by undercover agents of the FBI and the Utah

Department of Corrections during the fall of 1995, but his trial and conviction

revolved around only the last deal, involving a one-kilogram transaction where

Duran acted as a middle-man for another cocaine supplier.1
1

(...continued)

(10th Cir. 1997). 

- 3 -

During the summer of 1995, Duran worked as a stocker for a supermarket

chain’s warehouse facility in Salt Lake City. One of his co-workers was Douglas

Needham (“Needham”), who at the time was a confidential informant for the FBI. 

Duran testified that during their work shifts, Needham bragged about his contacts

in the drug world, and he approached Duran about finding a source for cocaine. 

Needham, however, testified that it was Duran who first suggested dealing in

drugs. 

After some initial contact with Duran, which had not been authorized by the

FBI, Needham reported to the FBI in early September that Duran would be willing

to sell cocaine. On September 16, 1995, Duran took part in the sale of one ounce

of cocaine to Officer Leona Ika of the Utah Department of Corrections (“Officer

Ika”). On September 19, 1995, Duran took part in the sale of four ounces of

cocaine to FBI Special Agent Bob Evans (“Agent Evans”). On September 29,

Duran took part in a second sale to Agent Evans, again for four ounces of

cocaine. At all three cocaine purchases, Needham acted as a liaison between

Duran and the undercover agents. Duran contends that he was pressured into

these deals by Needham, that he was acting merely as an intermediary for the true
- 4 -

supplier of the cocaine -- a man named Armondo -- and that he made no money

from the purchases.

During the month of October, Evans and Duran discussed the sale of a

kilogram of cocaine numerous times, including during several meetings at a local

strip club. Agent Evans had purchased a membership at the club in order to

ensure that Duran would be able to join him there. During the latter part of

October, Duran placed several phone calls to Evans to try to set up a deal for a

kilogram of cocaine.

On November 3, 1995, these discussions culminated in the sale of a

kilogram of cocaine at the home of Leobardo Cruz (“Cruz”) in West Valley City,

Utah, with Duran acting as intermediary for Cruz and Needham acting as

intermediary for Evans. Cruz testified that the cocaine came from another dealer,

and that Cruz was charging Duran $21,000 for the drugs. The purchase price

from Duran to Agent Evans initially was set at $24,000, but Evans testified that

Duran unexpectedly raised the price to $25,000 and announced that he expected

Evans to provide him with an additional ounce of cocaine for himself. After

Needham inspected the cocaine for Officer Ika and Agent Evans, Duran and Cruz

were arrested. Subsequently, Cruz testified against Duran as part of a plea

bargain.
2The instruction offered by Duran’s counsel provided,

The government has the burden of proving beyond

a reasonable doubt that the defendant was not entrapped. 

The government must prove the following:

1. The defendant was not predisposed to commit

the crime before being contacted by government agents,

and

2. The defendant was not induced by the

government agents to commit the crime.

Where a person independent of and before

government contact, is predisposed to commit the crime,

it is not entrapment if government agents merely provide

an opportunity to commit the crime.

We note that this proposed instruction is clearly incorrect because once an

entrapment defense is properly raised, the government has the burden of proving

that the defendant was predisposed to commit the crime. The tendered instruction

erroneously provides that the government must prove that the defendant was not

predisposed to commit the crime. See United States v. Cecil, 96 F.3d 1344, 1348

(10th Cir. 1996), cert. denied, 117 S. Ct. 987 (1997).

- 5 -

Duran’s defense at trial relied solely on his claim of entrapment. Duran’s

counsel offered a proposed jury instruction on entrapment,2

 but this instruction

was not used by the court; the record on appeal is silent as to the basis of the

court’s rejection of this proposal. Instead, the court delivered its own instruction

setting out the elements of the defense of entrapment to the jury thus:

Instruction No. 32A:

Now, the defendant, Simon Duran, 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 that is

alleged in count one of the indictment. A defendant may

not be convicted of a crime if that person was entrapped

by the government to do the acts charged. The person is

entrapped when that person has no previous intent or
3There are two versions of this instruction in the record, one being the

written instruction given to the jury upon retiring for deliberation, and the other

being a transcript of the oral instructions delivered by the court, with minor

variations between them. The version reprinted above is from the transcript of

the court’s oral instruction.

- 6 -

disposition or willingness to commit the crime charged

and is induced or persuaded by a government agent to

commit the offense.

A person is not entrapped when the person has a

previous 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

jury should 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 degree of inducement or

persuasion provided by the agent.3

Both parties accepted this and all the other instructions drafted by the court

without objection.

The court’s entrapment instruction was patterned after the instruction

suggested in Federal Jury Practice and Instructions, with one key difference. Not

included in the district court’s instruction was the final paragraph of the

suggested instruction that explains the government’s burden of proof:

In order to return a verdict of guilty as to

Defendant ___ for the crime of ___ charged in [Count _

of] the indictment you must find, beyond a reasonable

doubt, that the defendant had a previous intent or

disposition or willingness to commit the crime charged.
4The full text of the Devitt entrapment instruction provides: 

The Defendant ___ asserts that [he] [she] was

entrapped by the government to commit the crime of

____ that is alleged in [Count _ of] the indictment. A

defendant may not be convicted of this crime, however,

if that person was entrapped by the government to do the

acts charged.

A person is entrapped when that person has no

previous intent or disposition or willingness to commit

the crime charged and is induced or persuaded by law

enforcement officers [or by their agents] to commit the

offense.

A person is not entrapped when that person has a

previous intent or disposition or willingness to commit

the crime charged and law enforcement officers [or their

agents] merely provide what appears to be an

opportunity to commit the offense.

It is not entrapment for a government agent to

pretend to be someone else and to then engage or

attempt to engage, either personally or through an

informer, in an unlawful transaction or in an unlawful

act with a person who has a previous intent or

disposition or willingness to engage in the unlawful

transaction or in the unlawful act.

In determining the question of entrapment, the

jury should consider all of the evidence received in this

case concerning the intentions and disposition of the

defendant before encountering the law enforcement

officers [or their agents] as well as the nature and the

degree of the inducement or persuasion provided by the

law enforcement officers [or their agents].

In order to return a verdict of guilty as to

Defendant ___ for the crime of ___ charged in [Count _

of] the indictment you must find, beyond a reasonable

doubt, that the defendant had a previous intent or

(continued...)

- 7 -

 1 Devitt et al., Federal Jury Practice and Instructions § 19.04 (4th ed. 1992).4
4

(...continued)

disposition or willingness to commit the crime charged.

1 Devitt et al., Federal Jury Practice and Instructions § 19.04 (4th ed. 1992).

5The parties have provided differing views of the chronology of jury

questions and court responses. This difficulty could have been avoided if the

district court had taken the expedient of repeating the jury’s question each time

the court gave its written response. On appeal, the parties also should have

provided the court with a full transcript, in correct sequence, of the district

court’s consideration of each jury question.

The following list appears to be the correct sequence of jury questions and

court responses as they actually were asked and answered. (The numbering below

is provided for ease of subsequent reference; they were not numbered in the

record.)

Jury Query, No. 1:

#1 was the person referred to as Mondo acting as an

under cover agent or affiliated in any way with any law

enforcement agency?

#2 was the person referred to as “the unknown woman”

acting as an under cover agent of any Government or

law enforcement agency?

#3 was any cocaine in any buy or sell mention in this

case provided for sale by any law enforcement or

governmental agency?

Thankyou

(continued...)

- 8 -

During its two days of deliberations, the jury sent five notes to the district

court with requests for additional materials and interpretations of the instructions. 

The parties failed to make an adequate record of the sequence of these queries or

the court’s responses to them, and as result, the record on appeal is decidedly

fuzzy about the chronology of events during the jury’s deliberation.5

 
5

(...continued)

[Signature]

Court’s Response, No. 1:

I acknowledge the note from one of the jurors and

suggest that you begin your deliberations and use your

best collective memory.

Jury Query, No. 2:

Can Doug Needham be considered an agent or the

person used to entrap Simon Duran or does it need to be

a government agent like Bob Evans or Ika.

[Signature]

Jury Query, No. 3:

Can we listen to the tapes again?

Court’s Response, No. 2:

You have had a long day. Some of your requests

require that I assemble the attorneys. You are welcome

to go home and are directed to return tomorrow at 9:30

a.m. and continue your deliberations as soon as all

members of the jury are present. I will respond to your

requests in the morning after conversing with the

attorneys. Remember what I have told you. Don’t talk

to anyone about this case.

Court’s Response, No. 3:

Tapes and tape machine furnished herewith.

Your inquiry concerning the status of Mr.

Needham is a question of fact which you must decide. 

Please consider all of the evidence and each of the

instructions given you by the Court.

Jury Query, No. 4:

[Jury] Instruction No. 32A

Line 2 -- was entrapped by the government through its

(continued...)

- 9 -
5

(...continued)

agent Please indicate if this agent refers to specifically

Bob Evans.

[Signature]

Court’s Response, No. 4:

In response to your inquiry, the instruction you

refer to refers to any agent doing work for the United

States in matters relating to this case.

Jury Query, No. 5:

In Instruction #5 - will you please interpret the

following:

“If, based on your consideration of the evidence,

you are firmly convinced that the defendant is guilty of

the crime charged, you MUST find him guilty.”

I don’t know if you can answer this. But I’ll try

anyways. If I have a reasonable doubt of one thing, but

am 100% sure of the charge, is this Instruction #5 saying

to put aside the reasonable doubt and only look at the

charge and because entrapment is not on the charge can

it still be used according to Instruction #5

[Signature]

Court’s Response, No. 5:

Your note is acknowledged.

You have heard all the witnesses; you have all the

evidence.

Follow all of the instructions of the Court. Do the

best you can with what you have to work with.

- 10 -

Nevertheless, these queries show that the jury was puzzled about Needham’s

status as a government agent and the legal burden of proof with respect to the

defense of entrapment. (See Jury Queries Nos. 3, 4, and 5.)
- 11 -

 Although the record is sketchy at best as to how these queries were dealt

with, during at least one colloquy with the district court the government conceded

that Needham probably could be considered a government agent, but the

government adamantly objected to both a specific instruction on this issue and a

determination by the court that as a matter of law the jury should treat Needham

as a government agent. The Court’s ultimate response did not define who is a

government agent, but merely told the jury that its instructions referred to “any

agent doing work for the United States.” Both the government and the defendant

agreed to that response. As for Jury Query No. 5, which raised the question of the

burden of proof for the entrapment defense, we have no record of the decisionmaking process whereby the court developed its response, nor is there any record

of whether the parties objected to the court’s response. The court’s actual

response did not answer the jury’s question, but merely exhorted the jury to

continue deliberating.

Eventually the jury returned a guilty verdict. The court sentenced Duran to

sixty-three months in prison, and a fine of $2,000, with four years of supervised

release following the prison term.
- 12 -

II.

On appeal, Duran contends that the district court’s instruction on the

entrapment defense was plainly erroneous because of its failure to inform the jury

that the government has the burden of proving beyond a reasonable doubt that the

defendant was not entrapped. The government concedes that the instruction

constituted plain error, but nevertheless, we must still conduct our own

independent review of the record to determine whether this case should be

remanded. See United States v. Furman, 112 F.3d 435, 438 n.2 (10th Cir. 1997)

(“‘[P]arties cannot compel us to reverse (or modify) a district court’s

determination by stipulation.’”) (quoting Bolin v. Secretary of Health & Human

Servs., 32 F.3d 449, 450 (10th Cir. 1994).

In the absence of any objection that puts the district court clearly on notice

as to the asserted inadequacy of a proposed jury instruction, see Fed. R. Crim. P.

30, we will review jury instructions only for plain error. See United States v.

Allen, __ F.3d __, 1997 WL 716081, at *2 (10th Cir. Nov. 18, 1997). In Duran’s

case, his attorney did not object to the district court’s failure to include burdenof-proof language in the court’s proposed jury instruction on entrapment. Thus,

Duran failed to put the district court “distinctly” on notice as to the legal

inadequacy of the court’s proposed instruction. See Fed. R. Crim. P. 30. As a

result, we review the jury instructions in Duran’s case only for plain error. 
- 13 -

Under the plain error analysis dictated by Fed. R. Crim. P. 52(b), an

appellant must establish four elements before an appellate court may upset the

judgment of a district court:

[T]here must be (1) “error,” (2) that is “plain,” and (3)

that “affect[s] substantial rights.” If all three conditions

are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the

error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”

Johnson v. United States, __ U.S. __, 117 S. Ct. 1544, 1549 (1997) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)); see also Allen, 1997 WL

716081, at *3. In the context of a challenged jury instruction, “error” arises if,

considering the instructions as a whole, the jury has been misled. See United

States v. Pappert, 112 F.3d 1073, 1076 (10th Cir. 1997). An error in a jury

instruction is “plain” if it is obvious or clear, i.e., if it contrary to well-settled

law. See United States v. Milton, 62 F.3d 1292, 1294 (10th Cir. 1995); United

States v. Brown, 996 F.2d 1049, 1053 (10th Cir. 1993). A plainly erroneous jury

instruction affects a defendant’s “substantial rights” if the instruction concerns a

principal element of the defense or an element of the crime, thus suggesting that

the error affected the outcome of the case. See Olano, 507 U.S. at 734; see also

United States v. DeSantiago-Flores, 107 F.3d 1472, 1481 (10th Cir.), overruled on

other grounds, United States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir.), cert.

denied 118 S. Ct. 253 (1997). Finally, the fairness or integrity of a defendant’s
- 14 -

trial is “seriously affected” when the defendant has presented substantial evidence

in support of an affirmative defense which has been undermined by an erroneous

instruction. Cf. Johnson, 117 S. Ct. at 1550 (holding that a trial court’s failure to

submit the issue of materiality to the jury in a perjury prosecution did not

seriously affect the fairness of the defendant’s trial when the evidence on the

materiality of the defendant’s statement was “overwhelming”).

A.

The first prong of the Olano/Johnson plain error analysis requires a

comparison of the law of the affirmative defense of entrapment with the district

court’s actual jury instruction on entrapment. There are two elements to the

entrapment defense: “The defendant must have been induced to commit the

offense by government agents, and the defendant must not have been otherwise

predisposed to do so when presented with the opportunity.” United States v.

Madrigal, 43 F.3d 1367, 1369 (10th Cir. 1994) (citing United States v. Fadel, 844

F.2d 1425, 1429 (10th Cir. 1988)). Once a defendant has presented sufficient

evidence to put the affirmative defense of entrapment at issue, “‘the prosecution

has the burden of proving, beyond a reasonable doubt, that a defendant was not

entrapped.’” Id. (quoting United States v. Young, 954 F.2d 614, 616 (10th Cir.

1992)). The prosecution generally meets this burden if it “‘prove[s] beyond

reasonable doubt that the defendant was disposed to commit the criminal act prior
6There is no dispute in this case that Duran met his initial burden of coming

forward with sufficient evidence to place the entrapment question at issue in the

case. See United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986) (“The

defendant is entitled to present the defense [of entrapment] to the jury only if he

can identify evidence ‘from which a reasonable juror could derive a reasonable

doubt as to the origin of criminal intent.”) (quoting United States v. Nations, 764

F.2d 1073, 1080 (5th Cir. 1985)) (emphasis in original).

- 15 -

to first being approached by Government agents.’” United States v. Cecil, 96

F.3d 1344, 1348 (10th Cir. 1996) (quoting Jacobson v. United States, 503 U.S.

540, 549 (1992)), cert. denied, 117 S. Ct. 987 (1997). Of course, the prosecution

also may meet its burden by proving beyond a reasonable doubt that the

government did not induce the defendant to commit the crime. See United States

v. El-Gawli, 837 F.2d 142, 147 (3d Cir. 1988).

In light of this well-established case law, and as the government has

conceded, the district court’s entrapment instruction in Duran’s case was

deficient. Although the court’s instructions correctly described the elements of an

entrapment defense, nowhere in the instructions did the court inform the jury that

the burden of proving beyond a reasonable doubt that Duran was not entrapped

lay with the government -- or the equivalent that the jury could not convict unless

it first found beyond a reasonable doubt that Duran was not entrapped. Indeed,

when a defendant has presented sufficient evidence to raise the issue of

entrapment for the jury,6

 proof that the defendant was not entrapped effectively

becomes an element of the crime. See Jacobson, 503 U.S. at 548-50 (reversing a
7The text of these instructions provides,

Jury Instruction No. 4.

In a criminal case such as this, the law presumes

the defendant to be innocent until the defendant is

proven guilty beyond a reasonable doubt. The burden of

proving the defendant guilty beyond a reasonable doubt

rests upon the United States. That burden never shifts to

the defendant. The law does not require the defendant

to prove the defendant’s innocence, to call any

witnesses, or to produce any evidence. If the United

States fails to prove the defendant guilty beyond a

reasonable doubt then you must find the defendant not

guilty.

Jury Instruction No. 18.

(continued...)

- 16 -

child pornography conviction because the government failed to prove, in addition

to the traditional elements of the pornography charge, that the defendant was

predisposed to buy illegal child pornography prior to contact with government

agents); cf. United States v. Corrigan, 548 F.2d 879, 883-84 (10th Cir. 1977)

(holding that when a defendant raises credible evidence of the affirmative defense

of self-defense, the prosecution must disprove the elements of self-defense in

addition to proving the elements of assault). 

The deficiency in the district court’s entrapment instruction is compounded

by looking at the instructions as a whole. The district court went to great lengths

to emphasize that the burden of proof lies with the government on the elements of

the crime. (See Instr. Nos. 4, 18, 22.)7

 But the court presented entrapment “as a 
7

(...continued)

The defendant has entered a plea of “not guilty” to

the offense charged in the indictment. This plea puts in

issue each of the essential elements of the crime charged

and imposes on the United States the burden of

establishing each of those elements beyond a reasonable

doubt.

Jury Instruction No. 22.

. . . .

In order for the defendant to be found guilty of

the offense charged in Count I, the government must

prove the following three elements beyond a reasonable

doubt:

First, that the defendant possessed cocaine, a

Schedule II controlled substance;

Second, that the defendant did so knowingly or

intentionally; and

Third, that the defendant intended to distribute the

controlled substance.

As stated before, the burden is always upon the

government to prove beyond a reasonable doubt every

essential element of the crime charged. The law never

imposes upon a defendant in a criminal case the burden

or duty of calling any witness or producing any

evidence.

- 17 -

defense” asserted by the defendant and failed to tell the jury either that lack of

entrapment had become an element of the crime or that the government bears the

burden of proving lack of entrapment once the defendant has made an initial

showing on the defense. (See Instr. No. 32A.) The court in Corrigan considered

a similar problem in an instruction on the affirmative defense of self-defense

where the district court also had begun the instruction by pointing out that the
- 18 -

defendant had raised an affirmative defense. See Corrigan, 548 F.2d at 883. In

that case, the court concluded that the jury instruction “could easily be taken to

mean that since the defendant raised the issue, it is his burden to prove it to the

jury’s satisfaction.” Id. Such an interpretation was legally incorrect in Corrigan,

and it would be just as incorrect in Duran’s case. See id. Thus, we hold that the

district court’s instructions below were deficient because nowhere does the

entrapment instruction in Duran’s case contradict this potential, incorrect

interpretation.

Notwithstanding the desirability of explicitly stating that it is the

government’s burden to prove no entrapment, in prior cases we have held that this

alone is not fatal to the jury instructions as a whole so long as the instructions

clearly state that before the jury can convict, it must find beyond a reasonable

doubt that there was no entrapment. See United States v. Smegal, 772 F.2d 659,

660-61 (10th Cir. 1985) (upholding an entrapment instruction that did not

explicitly say the government had the burden of proof but which did require the

jury to “find beyond a reasonable doubt the Defendant was predisposed to commit

such an offense” before it could convict); United States v. Martinez, 749 F.2d

601, 606 (10th Cir. 1984) (same); United States v. Gurule, 522 F.2d 20, 25 (10th

Cir. 1975) (upholding jury instructions that provided, “If . . . the jury should find

beyond a reasonable doubt . . . that . . . the defendant . . . was ready and willing to
- 19 -

commit the crimes . . . whenever opportunity was afforded and the government . .

. did no more than offer the opportunity, then the defendant is not a victim of

entrapment. If, on the other hand, . . . the evidence . . . should leave you with a

reasonable doubt . . . then it is your duty to acquit. . . .”). Although in each of

these cases the jury instruction on entrapment did not explicitly say the

government had the burden of proving no entrapment, this was the clear import

because the juries were told that they could not convict unless they were satisfied

that the proof had established beyond a reasonable doubt that the defendant was

not entrapped.

Unfortunately, even the kind of instruction offered in Smegal, Martinez,

and Gurule is missing from the entrapment instruction here. See Smegal, 772

F.2d at 660; Martinez, 749 F.2d at 606; Gurule, 522 F.2d at 25. Duran’s jury was

not told that it must find beyond a reasonable doubt that one or the other of the

elements of entrapment had been disproved. It was merely told that entrapment

was a defense being asserted by the defendant, and it consisted of the elements of

predisposition and inducement. The district court gave no indication to the jury

as to whether the burden of proof beyond a reasonable doubt lay on the side of the

government proving predisposition (or lack of inducement) or on the side of the

defendant proving no predisposition (and government inducement). In the face of

the failure to provide this kind of direction, a reasonable jury might conclude that
- 20 -

the burden lay with the defendant. See Notaro v. United States, 363 F.2d 169,

175-76 (9th Cir. 1966) (striking down an entrapment instruction because it

created confusion for the jury as to whether the defendant had the burden of

proof). Indeed, Jury Query No. 5 suggests that at least one juror in Duran’s case

had come to the erroneous interpretation that Duran carried the burden of proof

on the entrapment defense. (See Jury Query No. 5.) It is clear, however, that the

law of entrapment requires the government, not the defendant, to prove

predisposition. See Jacobson, 503 U.S. at 549, Cecil, 96 F.3d at 1348.

B.

The second prong of the Olano/Johnson plain error analysis requires us to

canvass the case law to determine whether the district court’s error -- in failing to

inform the jury that before it could convict Duran, it must find beyond a

reasonable doubt that Duran was not entrapped -- was “clear” or “obvious.” The

government concedes that the case law demonstrates the district court’s error was

clear and obvious.

In virtually all of this circuit’s reported decisions considering challenges to

jury instructions on entrapment where we have upheld the instructions, the

instructions stated that the jury could not convict unless it found beyond a

reasonable doubt that the defendant was predisposed to commit the crime and that

the government did not induce or persuade the defendant to commit the offense. 
- 21 -

See Cecil, 96 F.3d at 1346 (upholding jury instruction that included both a

statement that the government has the burden of proving beyond a reasonable

doubt that the defendant was not entrapped, and a statement that the government

must prove beyond a reasonable doubt that the defendant was predisposed to

commit the criminal act); United States v. Rivera, 778 F.2d 591, 601-02 (10th Cir.

1985) (upholding a jury instruction that included only a statement that jury must

find predisposition beyond a reasonable doubt); Smegal, 772 F.2d at 660 (same);

Martinez, 749 F.2d at 606 (same); Gurule, 522 F.2d at 25 (finding that the legal

requirement that the government bear the burden of proving the defendant was not

entrapped is “clearly implicit” when the entrapment instruction informs the jury

not to convict if there is a reasonable doubt as to the defendant’s predisposition);

Garcia v. United States, 373 F.2d 806, 809 (10th Cir. 1967) (noting that an

entrapment instruction should inform the jury that “the burden is upon the

government to prove beyond a reasonable doubt that its agents did not entrap the

accused . . .”).

The seminal case on the issue of entrapment jury instructions was decided

by the Ninth Circuit more than thirty years ago, where the court held that it was

reversible error for an entrapment instruction to suggest that the defendant has the

burden of proving the elements of the entrapment defense. See Notaro, 363 F.2d

at 175-76. As the court explained, even a general burden of proof instruction
- 22 -

elsewhere in the jury instructions is insufficient to save the instructions as a

whole if the specific entrapment instruction has given an incorrect impression that

the defendant bears the burden of proving entrapment. See id. at 176 (quoted in

Corrigan, 548 F.2d at 882). We note that other cases have made it clear that the

government bears the burden of disproving a claim of entrapment. See United

States v. Sterner, 23 F.3d 250, 252 (9th Cir. 1994) (“A proper entrapment

instruction informs the jury that the government has to prove beyond a reasonable

doubt the defendant’s predisposition ‘to violate the law before the [g]overnment

intervened.’”) (quoting Jacobson, 503 U.S. at 549 n.2), disapproved on other

grounds, United States v. Keys, 95 F.3d 874, 879-80 n.6 (9th Cir. 1996) (en

banc); United States v. Whoie, 925 F.2d 1481, 1486 (D.C. Cir. 1991) (“Juries are

already told that they must acquit a defendant unless they find predisposition

beyond a reasonable doubt. They should not have to guess that it is the

government that must prove it.”); El-Gawli, 837 F.2d at 147 (“In this circuit, the

government must bear the entire burden of disproving entrapment beyond a

reasonable doubt.”); Virgin Islands v. Cruz, 478 F.2d 712, 717-18 (3d Cir. 1973)

(holding that it is error, if not plain error, to fail to inform a jury that it must find

beyond a reasonable doubt that the defendant was not entrapped). 
- 23 -

C.

The third prong of the Olano/Johnson plain error analysis requires an

examination of the impact of the district court’s instructional error on the

outcome of the case, i.e., whether the error affected Duran’s “substantial rights.” 

See Olano, 507 U.S. at 734. When a district court gives a legally incorrect jury

instruction on the principal elements of the offense or a defense, we often have

concluded that the legal error affected the outcome of the trial proceedings. See,

e.g., Brown, 996 F.2d at 1053. But see DeSantiago-Flores, 107 F.3d at 1481

(finding no prejudice despite plain error in a jury instruction because the jury’s

actual verdict necessarily included findings on all the required elements that

would have been given in a correct jury instruction). In Duran’s case, however,

another factor demonstrates that the district court’s error did indeed affect

Duran’s substantial rights: the apparent jury confusion over burden of proof on

entrapment. Jury Query No. 5 indicates that at least one member of the jury was

unclear as to how the government’s burden of proof on the elements of the

cocaine possession charge intersected with the defendant’s claim of entrapment. 

(See Jury Query No. 5.) This query strongly suggests that the confusion over the

burden of proof on the entrapment defense affected Duran’s substantial rights. As

the government concedes, the possibility of prejudice in Duran’s case is simply

“too great to allow the conviction to stand.” See Corrigan, 548 F.2d at 884.
- 24 -

D.

The fourth prong of the Olano/Johnson analysis asks if the “fairness,

integrity, or public reputation” of Duran’s trial was “seriously affected” by the

district court’s instructional error on the entrapment defense. See Olano, 507

U.S. at 736. As the Supreme Court noted, an error may create this threat to the

integrity of the judicial proceedings “independent of the defendant’s innocence.” 

Id. at 736-37.

In Duran’s case, the government again has conceded, and we agree, that the

district court’s plain error seriously affected the fairness, integrity, and public

reputation of Duran’s trial because it allowed the jury to reach a conviction

without requiring the government to prove all of the elements in the case beyond

a reasonable doubt. In light of the revered status of the beyond-a-reasonabledoubt standard in our criminal jurisprudence, a jury instruction that allows a

conviction where one important element may not have been found against the

defendant by such a standard cannot be overlooked. See Corrigan, 548 F.2d at

883-84. Thus, because of the district court’s plain error in the jury instructions,

taken as a whole, we conclude that a remand for a new trial is necessary.
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II.

As a secondary claim of plain error in the jury instructions, Duran also

challenges the district court’s responses to the jury’s queries concerning the legal

definition of agency in the context of an entrapment defense. (See Jury Queries

Nos. 2 & 4.) The government contends that any error in the district court’s

responses was invited by Duran when he agreed to those responses. The record

indicates that Duran’s counsel agreed to the court’s responses only after arguing

unsuccessfully for more extensive responses that would have explained the legal

scope of agency with respect to entrapment. However, the fact remains that he

agreed to the responses by the court, and thus, we can reverse only for plain error.

Nevertheless, when a jury indicates through its queries that it is confused as

to important legal standards in a case, particularly where there is an apparent

basis for the confusion, it is plain error for the district court not to clarify that

confusion. See United States v. Zimmerman, 943 F.2d 1204, 1213-14 (10th Cir.

1991); United States v. March, 999 F.2d 456, 462-63 (10th Cir. 1993) (finding

that a trial court’s vague response to a jury query was erroneous under

Zimmerman, but concluding that the error was harmless in light of other evidence

of guilt); see also United States v. Warren, 984 F.2d 325, 330-31 (9th Cir. 1993)

(reversing defendant’s conviction because the trial court’s responses to jury

queries simply reiterated previous jury instructions without directly resolving the
- 26 -

jury’s apparent confusion); United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir.

1989) (“When a jury indicates confusion about an important legal issue, it is not

sufficient for the court to rely on more general statements in its prior charge. ‘A

conviction ought not to rest on an equivocal direction to the jury on a basic

issue.’”) (quoting Bollenbach v. United States, 326 U.S. 607, 613 (1946)). As we

indicated in Zimmerman, vague answers or mere exhortations to continue

deliberating are plainly inadequate when the jury has demonstrated its

misunderstanding of relevant legal principles: “‘When a jury makes explicit its

difficulties a trial judge should clear them away with concrete accuracy.’” 

Zimmerman, 943 F.2d at 1213 (quoting Bollenbach, 326 U.S. at 612-13). Under

the Zimmerman rule, a trial court must clarify jury confusion when jury questions

indicate a possibility that a conviction would be “based on an incorrect legal

basis.” Id. at 1214.

In Duran’s case, the jury seemed to have more than a little difficulty with

the references to a “government agent” in the court’s entrapment instruction. 

(See Instr. No. 32A.) The initial jury instruction had referred to a government

“agent” in the singular, despite evidence during the trial that there were at least

three government agents involved in the transactions with Duran -- Agent Evans,

Officer Ika, and Needham. Seeing this contradiction between the evidence and

the jury instruction, the jury asked the not surprising question of whether the term
- 27 -

“agent” in the entrapment instruction could refer to Needham, or whether it only

could refer to Agent Evans or Officer Ika. (See Jury Query No. 2.) When the

jury reconvened the next morning, the court responded merely by instructing the

jury that the issue was a question of fact for the jury to decide. (See Court’s

Response No. 3.) The jury demonstrated just how unhelpful the court’s answer

was by sending out a new question asking the court to indicate whether the term

“agent” in the entrapment instruction referred specifically to Agent Evans. (See

Jury Query No. 4.) The court responded by telling the jury that the term “agent”

“refers to any agent doing work for the United States in matters relating to this

case.” (See Court’s Response No. 4.) Not only does the court’s response include

the confusing use of the very term to be defined in the definition, but the

definition itself can be read to mean that an “agent” is only someone working for

the government, i.e., a government employee.

We believe that the jury’s repeated queries indicated clear confusion over

the legal definition of agency within the context of Duran’s entrapment defense. 

We also believe that the court’s responses to the jury on the agency questions

violated the Zimmerman rule because the responses could have allowed the jury

to conclude that Needham was not acting as a government agent in his dealings

with Duran. If the jury concluded that Needham could not be a government agent,

then the heart of Duran’s entrapment defense would collapse because almost all
8The word “agent” is not self-defining. In a case such as this, where a

defendant asserts an entrapment defense, and both government officials and a

person acting as a government informant are involved, the district court should

tender an instruction properly defining the word “agent.” Thus, we suggest that if

Duran is tried again and raises the entrapment defense, the district court define

the word “agent” in the entrapment charge. See United States v. Attell, 655 F.2d

703, 707 (5th Cir., Unit A 1981); see also, Smegal, 772 F.2d at 661 (favoring an

instruction defining the word “agent” in an entrapment charge where both a DEA

agent and government informant were involved).

9Normally, we would review the denial of a motion for judgment of

acquittal de novo, applying the same standard applicable in the district court. See

United States v. Lampley, __ F.3d __, 1997 WL 644459, at *9 (10th Cir. Oct. 20,

1997). In Duran’s case, however, the record on appeal contains no indication that

Duran ever made a motion for acquittal under Fed. R. Crim. P. 29. Thus, our

review of his claim here generally would be limited to a search for plain error. 

See Fed. R. Crim. P. 52(b). However, review under the plain error standard in

this case and a review of sufficiency of the evidence usually amount to largely the

same exercise. See United States v. Bowie, 892 F.2d 1494, 1496-97 (10th Cir.

1990). As a result, we will treat Duran’s entrapment-as-a-matter-of-law claim as

though it were a challenge to the sufficiency of the evidence. 

- 28 -

of his contentions of government inducement involved conduct by Needham. 

Thus, we find plain error in this regard as well.8

III.

Besides his claims of instructional errors with respect to the entrapment

defense, Duran also argues that as a matter of law he was entrapped, and as a

result he was entitled to a judgment of acquittal.9

 To support this contention,

Duran complains that the government failed to demonstrate he possessed a

predisposition to distribute cocaine before his contact with the government’s paid
- 29 -

informant, Douglas Needham. Thus, Duran’s claim of entrapment as a matter of

law focuses on the second element of an entrapment defense, where the inquiry

concerns “whether the defendant was an ‘unwary innocent’ or an ‘unwary

criminal.’” United States v. Lampley, __ F.3d __, 1997 WL 644459, at *9 (10th

Cir. Oct. 20, 1997) (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)).

Predisposition to commit a criminal act may be shown by evidence of similar

prior illegal acts or it may be “inferred from ‘defendant’s desire for profit, his

eagerness to participate in the transaction, his ready response to the government’s

inducement offer, or his demonstrated knowledge or experience in the criminal

activity. . . .’” United States v. Dozal-Bencomo, 952 F.2d 1246, 1251 (10th Cir.

1991) (quoting United States v. Fadel, 844 F.2d 1425, 1433 (10th Cir. 1988)).

A claim of entrapment as a matter of law requires the defendant to show

that “‘there is undisputed testimony which shows conclusively and unmistakably

that an otherwise innocent person was induced to commit the act.’” United States

v. Madrigal, 43 F.3d 1367, 1369 (10th Cir. 1994) (quoting Fadel, 844 F.2d at

1434). We review the evidence in the light most favorable to the government,

drawing all reasonable inferences in favor of the prosecution. See id. A

defendant is not entitled to a claim of entrapment as a matter of law if the

government has presented any evidence to contradict the entrapment defense. See

Lampley, 1997 WL 644459, at *9-*10.
- 30 -

In Duran’s case, the government presented evidence that contradicts

Duran’s claim that he was not predisposed to distribute cocaine. According to

FBI Agent Evans, Duran claimed he had been a drug dealer for six years, and that

drug dealing allowed him to buy a new van with cash, as well as homes in Utah,

California, and Mexico. The government’s paid informant, Needham, also

testified that Duran bragged about being able to obtain drugs. Furthermore,

Duran demonstrated his familiarity with the methods of distributing cocaine

during the three cocaine deals prior to the one-kilogram transaction that resulted

in his arrest. Finally, during this last transaction, Duran increased the price of the

kilogram and demanded an additional supply of cocaine for himself, ostensibly

increasing his profit in the deal. All of this evidence is sufficient to contradict

Duran’s claim that he was not predisposed to commit the criminal acts in this

case.

This evidence also is sufficient to support the jury’s conviction. The test

for reviewing a sufficiency-of-the-evidence claim is to view the evidence in the

light most favorable to the government and ask whether the evidence, and the

reasonable inferences to be drawn from it, would allow a reasonable jury to

conclude beyond a reasonable doubt that the defendant was not entrapped. See

Madrigal, 43 F.3d at 1370. Resolving all credibility issues in favor of the
- 31 -

government, we believe a reasonable jury could have found beyond a reasonable

doubt that Duran was not entrapped.

IV.

Finally, we have reviewed Duran’s contention that the government agents

in this case committed outrageous conduct requiring reversal of his conviction,

and we find the claim to be meritless. See United States v. Pedraza, 27 F.3d

1515, 1521-22 (10th Cir. 1994).

In conclusion, because of the plain error in the district court’s jury

instructions on the defense of entrapment and the plain error in refusing to clarify

the jury confusion over the legal definition of agent, we REVERSE and

REMAND this case for a new trial.