ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO.





BRIEF FOR APPELLANT







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxx, Defendant-Appellant.







APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



STATUTES AND RULES

Pertinent statutes and rules are set forth in the Addendum to this brief.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. 3231.

ISSUE PRESENTED FOR REVIEW

Whether defense counsel's failure to request an entrapment instruction or to argue entrapment to the jury was constitutionally deficient and deprived Mr. xxxxxxx of his right to a fair trial.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On May 14, 1996, a federal grand jury sitting in the District of Columbia returned a four-count indictment charging Mr. xxxxxxx with unlawfully transferring two firearms knowing that they would be used to commit a drug trafficking offense, in violation of 18 U.S.C. 924(h) (Counts One and Three), and being an illegal alien in possession of those firearms, in violation of 18 U.S.C.

922(g)(5) (Counts Two and Four). [A. 7] (1)

On June 18, 1996, Mr. xxxxxxx pled guilty to Count One of the indictment, charging him with unlawful transfer of a single firearm, in violation of 18 U.S.C. 924(h). Prior to his sentencing, Mr. xxxxxxx moved to withdraw his guilty plea on the grounds that he did not fully understand the terms of the plea agreement because of his difficulties in understanding English. Thereafter, the district court granted the motion and permitted Mr. xxxxxxx to withdraw his plea.

A jury trial commenced before the Honorable Harold H. Greene on November 12, 1996. On November 15, 1996, the jury found Mr. xxxxxxx guilty on all counts.

On January 31, 1997, the court sentenced Mr. xxxxxxx to 27 months imprisonment, 2 years of supervised release, and a special assessment of $200.00. [A. 10] Mr. xxxxxxx filed a timely notice of appeal and this appeal ensued. [A. 14]

B. Statement of Facts

Jose xxxxxxx, who was born in El Salvador, came to Washington, D.C. from Texas in May 1992. (11/13/96 p.m. Tr. 12; 11/14/96 Tr. 9, 13) Although he was not in this country legally, Mr. xxxxxxx was gainfully employed when the events in this case occurred in late 1995 through March 6, 1996. (11/14/96 Tr. 9-10) Prior to that time, Mr. xxxxxxx did not use drugs or sell guns. (Id. at 10) However, with the aid of a paid informant who befriended Mr. xxxxxxx and provided him with drugs, an undercover agent employed by the Bureau of Alcohol, Tobacco & Firearms ("ATF") purchased from Mr. xxxxxxx two guns on November 29, 1995, and March 6, 1996, respectively. This case involves the circumstances leading up to and culminating in these two firearms transactions.

1. The Undercover Operation

Beginning in October 1995, ATF Agent Elvis Acosta was involved in investigating illegal gun trafficking in a particular area in Washington, D.C. (11/12/96 Tr. 80) To assist him in the investigation, Agent Acosta used a paid informant whose code name was "Flaco." (Id. at 81-82) Flaco's role was to provide Acosta with information concerning possible gun sellers in the area. (Id.) As part of his investigation, Agent Acosta recorded his conversations with individuals who sold him guns. (Id. at 83-84) 2. The Set-Up

Sometime prior to November 29, 1995, the informant, Flaco, became "friends" with Mr. xxxxxxx. (11/14/96 Tr. 10) Although Mr. xxxxxxx was not a drug user, Flaco began to provide him with marijuana and cocaine, which they often used together. (Id. at 10-11)

On November 29, 1995, Flaco, armed with marijuana and cocaine in his possession, told Mr. xxxxxxx that he wanted him to sell a gun to a "friend." (Id. at 10-11) xxxxxxx, who was not in the business of selling guns and was, in fact, gainfully employed at the time, refused. (Id. at 10-11) xxxxxxx and Flaco then began to use the drugs Flaco had in his possession. (Id. at 11) After using the drugs, Flaco again told xxxxxxx that he wanted him to sell the gun to his friend and that he could get a good price for the gun. (Id. at 11) While under the influence of the drugs provided to him by Flaco, xxxxxxx agreed to make the sale. (2) (Id. at 11)

Flaco then contacted Agent Acosta and told him that xxxxxxx had a firearm to sell. (11/13/96 p.m. Tr. 14) Later that day, Flaco arranged a telephone conversation between Acosta and xxxxxxx. (11/12/96 Tr. 93; 11/13/96 p.m. Tr. 14) Acosta tape-recorded the conversation. (11/12/96 Tr. 94; Gov. Ex. 1 (tape-recording)) (3) Flaco was with xxxxxxx during this telephone conversation. (11/13/96 p.m. Tr. 23-24) Acosta had no direct knowledge of whether Flaco or xxxxxxx initiated the proposed sale of the gun to him because he was not present during the contacts between the informant and Mr. xxxxxxx. (11/13/96 p.m. Tr. 14, 33) Moreover, Acosta did not equip Flaco with a body wire to record Flaco's conversations with xxxxxxx. (Id. at 15) Therefore, Acosta could not deny the possibility that Flaco provided drugs to xxxxxxx to induce him to sell guns to Acosta. (Id. at 33)

3. The Gun Transactions

In the telephone conversation on November 29, 1995, Acosta, whose cover story was that he was a New York drug dealer who needed guns for his business, told xxxxxxx that he would purchase a .357 pistol. (11/12/96 Tr. 93-94; 11/13/96 p.m. Tr. 43-44) Later that same day, Flaco took xxxxxxx to meet with Acosta. (11/12/96 Tr. 96-97) At that time, xxxxxxx gave Acosta the pistol in exchange for $300.00. (Id. at 97-98; Gov. Ex. 2 (tape-recording); Gov. Ex. 8 (pistol))

With Flaco acting as the middle-man on each occasion, Acosta recorded telephone conversations with xxxxxxx on January 9, February 27, and March 6, 1996. (11/12/96 Tr. 103-110; Gov. Ex. 3 (tape-recording); 11/13/96 a.m. Tr. 12; Gov. Ex. 4 (tape-recording); Id. at 16; Gov. Ex. 5 (tape-recording)) Mr. xxxxxxx was under the influence of drugs during each of his telephone conversations with Acosta. (11/14/96 Tr. 11-13) During the March 6th conversation, xxxxxxx agreed to meet Acosta later that evening and sell him a .38 revolver. (11/13/96 a.m. Tr. 14-15) Prior to the scheduled transaction, Flaco again provided marijuana and cocaine to xxxxxxx. (11/14/96 Tr. 12) After using the drugs with Flaco, xxxxxxx was under the influence of those drugs when he later met with Acosta. (Id. at 12-13, 16-20) At that time, xxxxxxx transferred a .38 revolver to Acosta. (11/13/96 a.m. Tr. 15-16; Gov. Ex. 6 (audiotape), 7 (videotape), 9 (revolver)) Subsequently, on or about May 20, 1996, xxxxxxx was arrested. (11/13/96 p.m. Tr. 11)

4. Defense Counsel Abandons the Entrapment

Defense at Trial

Prior to jury selection in this case, counsel for Mr. xxxxxxx informed the prosecutor and the district court that he intended to raise an entrapment defense at trial. (11/12/96 Tr. 5, 9-10) Although counsel determined that he had a "good faith basis" for raising the defense, he agreed to advise the court "more definitively" before he gave his opening statement, which he intended to do at the close of the government's case. (4) (Id. at 10)

After denying Mr. xxxxxxx's motion for judgment of acquittal after the prosecution rested its case-in-chief, the district court asked defense counsel whether he intended to raise an entrapment defense. (11/14/96 Tr. 4) Although defense counsel proffered facts that appeared to support an entrapment defense -- that Mr. xxxxxxx would testify the paid informant provided him with drugs to induce him to sell guns to the undercover ATF agent -- counsel confusingly represented that he was not "planning to raise entrapment, as the term goes." (Id.) In response, the prosecutor characterized the proffered defense as "another version of the outrageous government conduct defense." (Id. at 4-5)

After hearing further arguments by counsel, the court indicated that it would wait until after Mr. xxxxxxx testified to determine whether there was sufficient evidence of entrapment to require a jury instruction on that defense. (Id. at 6) When the trial judge opined that there was support for the proposition that entrapment only occurs if the government solicits the defendant from the very beginning of the criminal activity, defense counsel argued that the government's own evidence established that the informant had solicited Mr. xxxxxxx and arranged the contacts between xxxxxxx and Agent Acosta. (Id. at 7-8) The district court responded that if Mr. xxxxxxx testified that the informant induced him to sell the guns to the agent, "it's just like the normal entrapment situation, . . . ." (Id. at 7)

Although Mr. xxxxxxx testified consistently with his counsel's proffer that the informant provided drugs to xxxxxxx to persuade him to sell the guns (id. at 10-12, 16-20), the government did not call the informant as a rebuttal witness. Notwithstanding the strong evidence of inducement, defense counsel abandoned the entrapment theory and failed to request an entrapment jury instruction.

At the charge conference in this case, the trial judge again raised the question of whether the defense was entitled to an entrapment instruction. (11/14/96 Tr. 22) In response, the prosecutor argued that because the defense only came forward with evidence of "solicitation" rather than inducement, Mr. xxxxxxx was not entitled to an entrapment instruction. (Id. at 22-25) When the court asked about the significance of Mr. xxxxxxx's testimony, the prosecutor failed to address that testimony in the context of an entrapment defense and, instead, responded that the testimony "sound[ed] almost like a diminished capacity defense." (Id. at 25) Contending that each of the charged offenses only required a general intent, the prosecutor, while acknowledging that she was "kind of winging it," maintained that Mr. xxxxxxx was not entitled to any jury instruction relating to his mental state. (Id. at 25-26)

When the court asked defense counsel to state his position on Mr. xxxxxxx's entitlement to an entrapment instruction, the following confused and confounding colloquy took place:

DEFENSE COUNSEL: All right. When I first asked Agent Acosta how he came about getting this person's name [xxxxxxx], it was through Flaco, the confidential informant. The confidential informant had been meeting with Jose xxxxxxx and providing him with narcotics prior to any of this. So it was really an action on the part of the Government, because he [Flaco] was in the community spirit of turning in people that had guns. Now --



THE COURT: I don't know, though, what that means. Let's suppose it's true that he was supplying the defendant with drugs. That is not a defense.



DEFENSE COUNSEL: No, it isn't a defense. However, what happens as a result of this drug supply that's coming to him, his thought becomes impaired as to proper thinking --



THE COURT: Is that diminished capacity, or is it insanity? Or what kind of defense is it?



DEFENSE COUNSEL: It's not diminished capacity and it's not insanity.



THE COURT: It's not entrapment, either. What is it? I mean, it's got to fall in some category to be considered by the Court.



DEFENSE COUNSEL: I think it falls under the category that this is not volitional conduct on his part.



THE COURT: Why?

DEFENSE COUNSEL: Because of the fact that he's under the influence of narcotics. When we use the term "diminished capacity," I use that in the form of some sort of psychiatric disease. I don't use that --



THE COURT: Is there any case that says that a defendant who takes narcotics . . . is not responsible for his criminal acts?



DEFENSE COUNSEL: No. I don't have a case on that.

THE COURT: So what's the difference with this case?

DEFENSE COUNSEL: The difference in this case is that it's at a government's agent [sic] behest that he [xxxxxxx] starts the use of narcotics, in an effort to do guns. Somehow, this Flaco feels that xxxxxxx knew how to obtain guns. So what he does to help him to get the guns is introduce him to the use of narcotics, which breaks down his will to object to doing such conduct.



THE COURT: I know that's what you're saying. That's what he said and that's what you're saying. But what legal defense? There's got to be some sort of legal defense that the Court should recognize.



DEFENSE COUNSEL: Well, I don't know of any legal defense. I'm just calling it the xxxxxxx defense.



THE COURT: I see.

DEFENSE COUNSEL: I mean, I have to do something, and it strained my mental capacity to come up with this.



THE COURT: You did very well.

DEFENSE COUNSEL: And I have done the best I can do in that I still believe that the ATF confidential informant is the one responsible for the drug [sic] sales . . .



* * * *

DEFENSE COUNSEL: I just think that this is a type of defense that is oftentimes used. It's really -- it is entrapment and it's not entrapment. Under the definitions that we have today, it certainly isn't entrapment. But the conduct is.



(Id. at 26-28) (emphasis added).

Having abandoned the entrapment defense, defense counsel argued in his summation to the jury that Mr. xxxxxxx should not be held accountable for his conduct because he was under the influence of drugs at the time. (Id. at 42-46) After deliberating for less than two hours, the jury convicted Mr. xxxxxxx on all counts. (Id. at 71; 11/15/96 Tr. 2-3)

SUMMARY OF ARGUMENT

Jose xxxxxxx's conviction cannot stand because he did not receive the effective assistance of counsel at trial to which he was entitled. In this regard, although Mr. xxxxxxx's trial testimony established that the government informant induced him to commit the charged crimes, defense counsel failed to request an entrapment instruction or to present this defense to the jury. Because Mr. xxxxxxx came forward with sufficient evidence of inducement, the district court would have been required to give the jury an entrapment instruction if defense counsel had requested one. However, instead of asking for an entrapment instruction, defense counsel agreed to the prosecutor's suggestion that the court instruct the jury on the defense of drug intoxication, which would negate the specific intent element of only two of the four charges against Mr. xxxxxxx. Thus, defense counsel inexplicably abandoned a strong entrapment defense in favor of a half-baked intoxication theory that was, at best, only a partial defense. Moreover, defense counsel could have requested both entrapment and intoxication defense instructions. Because there was no tactical advantage in bypassing the entrapment defense, counsel's trial performance fell below an objective standard of reasonableness.

Counsel's constitutionally deficient performance deprived Mr. xxxxxxx of his only complete defense to the charges against him. Given the limited applicability of the drug intoxication defense, the jury was not presented with any defense at all to two of the four charges. Because defense counsel failed to place Mr. xxxxxxx's testimony in the context of an entrapment defense, the jury could have convicted Mr. xxxxxxx on his own admission that he was an illegal alien who transferred firearms to a government agent. The jury never was told that Mr. xxxxxxx's conduct was not unlawful if it was induced by the informant and Mr. xxxxxxx was not predisposed to commit the crimes. On this record, there is a reasonable probability that had the jury been properly instructed on the defense of entrapment, the trial's outcome would have been different. Counsel's performance in eradicating an entrapment defense that was supported by the evidence and that, at a minimum, would have required the district court to give an appropriate instruction to the jury, was so deficient as to deprive Mr. xxxxxxx of a fair trial by rendering the jury's verdict unreliable and unjust. Under these circumstances, Mr. xxxxxxx's conviction must be reversed.

ARGUMENT

I. DEFENSE COUNSEL'S FAILURE TO REQUEST AN ENTRAPMENT INSTRUCTION OR TO ARGUE ENTRAPMENT TO THE JURY WAS CONSTITUTIONALLY DEFICIENT AND DEPRIVED MR. xxxxxxx OF HIS RIGHT TO A FAIR TRIAL

A. Standard of Review

Whether trial counsel's performance was constitutionally ineffective is a mixed question of law and fact, Strickland v. Washington, 466 U.S. 668, 698 (1984), which this Court should review de novo. See Ornelas v. United States, 116 S. Ct. 1657, 1662 (1996) (adopting de novo review for findings of reasonable suspicion to conduct investigatory stop and probable cause to make warrantless search); United States v. Askew, 88 F.3d 1065, 1071 (D.C. Cir.) (assuming without deciding that review of district court's determination of ineffectiveness claim should be reviewed de novo) (citing Nealy v. Cabana, 674 F.2d 1173, 1176-77 (5th Cir. 1985) (adopting de novo review for ineffectiveness determinations)), cert. denied, 117 S. Ct. 444 (1996).

B. The Evidence Adduced at Trial Was Sufficient to Raise the Issue of Entrapment for the Jury's Determination and to Require an Entrapment Instruction



An entrapment defense "requires a showing that a defendant was induced by the government to commit a crime for which he lacked any predisposition." United States v. Budd, 23 F.3d 442, 445 (D.C. Cir. 1994) (citing Mathews v. United States, 485 U.S. 58, 62-63 (1988)), cert. denied, 513 U.S. 1115 (1995). This determination involves an objective analysis:

Inducement focuses on whether the government's conduct could have caused an undisposed person to commit a crime. It is thus an objective inquiry measuring whether the government's behavior was such that a law-abiding citizen's will to obey the law could have been overborne.

United States v. Kelly, 748 F.2d 691, 697 (D.C. Cir. 1984) (citation omitted). Thus, inducement involves "persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship . . . " United States v. Burkley, 591 F.2d 903, 913 (D.C. Cir. 1978) (quoting standard entrapment jury instruction), cert. denied, 440 U.S. 966 (1979).

Once the defendant has come forward with evidence of inducement (5), the burden of persuasion shifts to the government to disprove entrapment by establishing "beyond a reasonable doubt that the defendant was predisposed to commit the crime." Budd, 23 F.3d at 445.

Since Mr. xxxxxxx testified that the informant induced him to sell the guns to the ATF agent, the government either had to rebut his claim of inducement or prove predisposition. At a minimum, the evidence of inducement was sufficient to require that the jury be instructed on, and ultimately resolve, the issues relating to Mr. xxxxxxx's entrapment defense. The principal evidence of entrapment was established by Mr. xxxxxxx's own testimony. In this regard, he testified that before he met the informant, he (xxxxxxx) did not use drugs or sell guns. (11/14/96 Tr. 10-11) Subsequently, the informant befriended xxxxxxx and began to provide him with drugs, which they used together. (Id.) When the informant first told xxxxxxx that he wanted him to sell a gun to the informant's friend, xxxxxxx refused. (Id.) It was only after xxxxxxx was under the influence of drugs provided to him by the informant that the latter again told xxxxxxx he wanted him to sell a gun to a friend. (Id. at 11) His will weakened by drug use, xxxxxxx then succumbed to the informant's importuning. (Id.) In fact, Mr. xxxxxxx testified that he was under the influence of drugs during each of his contacts with the undercover agent, including the two actual gun transactions. (Id. at 11-13, 16-20) This evidence demonstrated that the paid informant used friendship and drugs to induce Mr. xxxxxxx to commit the charged gun offenses. Thus, Mr. xxxxxxx met his burden of coming forward with evidence of inducement sufficient to raise entrapment as a question for the jury.

Under this circuit's bifurcated-approach, the jury rather than the judge determines whether the defendant has shown inducement and if so, whether the government has met its burden of proving predisposition beyond a reasonable doubt. See Budd, 23 F.3d at 445; Whoie, 925 F.2d at 1483-84. Once the defendant comes forward with evidence of inducement, "the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman v. United States, 356 U.S. 369, 377 (1958).

Based upon Mr. xxxxxxx's unrebutted testimony that the informant used drugs to persuade him to sell the two firearms, the defense clearly was entitled to an entrapment instruction under the law of this circuit. If defense counsel had requested an instruction, the district court, in deciding whether to give one, was required to consider Mr. xxxxxxx's version of the facts as true. See United States v. Borum, 584 F.2d 424, 427 (D.C. Cir. 1978). Moreover, this Court has held an entrapment instruction necessary in cases where the evidence of inducement was less strong than in the instant case. See, e.g., Burkley, 591 F.2d at 914-16 (evidence that officer repeatedly requested defendant to sell heroin to him sufficient to warrant instruction); Borum, 584 F.2d at 427-28 (evidence that government agents first approached defendant and asked him numerous times to obtain guns warrants instruction; conviction reversed for failure to give instruction); United States v. Boone, 543 F.2d, 412, 414-15 (D.C. Cir. 1976) (evidence that agent promised reward if defendant accompanied him to purchase drugs requires instruction; conviction reversed for failure to give instruction). In light of these decisions, the evidence that the informant used friendship and drugs to induce Mr. xxxxxxx would have required the district court to give an entrapment instruction if defense counsel had requested one.

After first opposing an instruction on the defense of drug intoxication, the prosecutor later took the position that the government would not object if the defense requested an intoxication defense instruction only as to the two counts charging Mr. xxxxxxx with transferring firearms knowing that they would be used to commit drug trafficking offenses, in violation of 18 U.S.C. 924(h). (11/14/96 Tr. 30-33) In response, defense counsel asked the court to give the intoxication instruction as to the applicable

counts but failed to request an entrapment instruction. (Id. at 33) Consequently, the court instructed the jury that if "the Defendant was so under the influence of drugs that he did not know that [the firearm] was to be used in a drug trafficking crime and

that he could not form a specific intent to transfer the gun, then the [knowledge] element is not satisfied." (Id. at 60) (6) Thus, no entrapment instruction was requested and none was given. The jury, then, did not pass on the factual questions concerning inducement and predisposition that were raised by the evidence adduced at trial. In short, the jurors who decided Mr. xxxxxxx's fate never knew that he had a full defense to all of the charges against him -- a defense that was supported by the evidence but never presented to the jury.

C. Defense Counsel's Deficient Trial Performance Deprived Mr. xxxxxxx of a Fair Trial

An accused's due process right to a fair trial includes the right to present a full defense against the government's accusations. California v. Trombetta, 467 U.S. 479, 485 (1984); Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973). Moreover, a criminal defendant has a Sixth Amendment right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970)). To prove that counsel's assistance was constitutionally defective, a defendant must first show that counsel's performance was deficient, that is, "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687. Second, the defendant must demonstrate that counsel's deficient performance was prejudicial, that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. In the instant case, counsel's failure to request an entrapment instruction and argue that defense to the jury was objectively unreasonable in light of the strong evidence of entrapment in the record. Moreover, because counsel's deficient performance deprived Mr. xxxxxxx of his only meaningful defense, "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.

During the colloquy as to whether an entrapment instruction should be given, defense counsel referred to evidence establishing that the informant provided drugs to Mr. xxxxxxx to persuade him to obtain and sell guns to the undercover ATF agent. (11/14/96 Tr. 26-28) However, counsel apparently failed to recognize that these facts constituted a sufficient evidentiary foundation for a finding of government inducement requiring the district court, upon request, to give an entrapment instruction to the jury. Although the applicable case law clearly holds that a defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find inducement, counsel failed to cite any authority in support of this well-settled proposition. See, e.g., Mathews, 483 U.S. at 62; Burkley, 591 F.2d at 914. Moreover, defense counsel failed to correct the district court's erroneous conclusion that evidence that the government informant supplied drugs to the defendant did not constitute proof of entrapment. (11/14/96 Tr. 27) Apparently operating under a misapprehension of the elements of an entrapment defense, defense counsel, at the prosecutor's suggestion, instead requested an intoxication defense instruction, which only applied to two of the four charges against Mr. xxxxxxx. (Id. at 32-33) In fact, Mr. xxxxxxx's sentence would not have been affected by an acquittal on the two counts to which the intoxication defense applied because all the counts in the indictment were combined into a single group for guideline calculation purposes under U.S.S.G. 3D1.2(d). (PSR at 5) (7)

1. Counsel's Failure to Raise an Entrapment Defense was Objectively Unreasonable under The Circumstances

The decision to request an intoxication defense instruction rather than an entrapment instruction indicates that counsel lacked any understanding of the requirements for obtaining an entrapment instruction. Certainly, the elements of an entrapment defense are well understood by reasonably competent criminal defense attorneys. Because counsel recognized at the beginning of the trial that entrapment was a possible defense in this case, counsel should have known -- through basic, minimal legal research -- that the court was required to give an entrapment instruction because there was an evidentiary foundation for it in the record. Thus, counsel's performance on this critical issue fell below the minimum reasonable standard of competence required of criminal defense attorneys practicing in federal court and cannot be considered reasonable under prevailing professional norms, such as those reflected in the Standards for Criminal Justice Promulgated by the American Bar Association ("ABA Standards"). Under ABA Standard 4-3.8 (2d ed. 1980), counsel must "inform [ ] himself . . . fully on the facts and the law . . . ." Regrettably, counsel failed to comply with that minimal standard.

This case does not involve the question of whether defense counsel's failure to request an entrapment instruction was sound litigation strategy because under the facts and circumstances here, it was the only defense available to Mr. xxxxxxx. Thus, counsel's decision not to raise an entrapment defense "clearly falls below the level of that customary skill and knowledge required of attorneys when only one defense is available." Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (trial counsel was ineffective in bypassing insanity defense where it was only defense available).

Defense counsel's request for an intoxication defense instruction, which was made only in response to the government's suggestion, does not excuse counsel's failure to ask for an entrapment instruction. In fact, the entrapment and intoxication instructions are not mutually exclusive because a defendant can deny one or more elements of the charged crime and still be entitled to an entrapment instruction. Mathews, 485 U.S. at 62-63. Because the two defenses are interrelated in that they are both supported by the same evidentiary foundation -- that the informant provided drugs to Mr. xxxxxxx, which he used before committing the crimes -- the defenses actually bolster one another. See Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993) (counsel ineffective for failing to raise impotency defense where it would have bolstered primary alibi defense). Thus, counsel's failure to request an entrapment instruction, which the district court would have been required to give, could not have been the result of a reasonable tactical decision and was constitutionally deficient. (8) Cf. Luchenburg v. Smith, 79 F.3d 388, 391-92 (4th Cir. 1996) (counsel ineffective for failing to object to omission in jury instruction and for failing to request proper instruction).

2. A Reasonable Probability Exists That Had Defense Counsel Requested an Entrapment Instruction and Argued That Defense to the Jury, the Result of Mr. xxxxxxx's Trial Would Have Been Different

Under Strickland, Mr. xxxxxxx must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. Defense counsel's decision to forego an entrapment defense deprived Mr. xxxxxxx of his only complete defense to the charges against him. If counsel had requested an entrapment instruction, the district court would have been required to give it. If the jury had been instructed that it must acquit if it found that the informant had induced Mr. xxxxxxx to participate in the firearms offenses and that the prosecution had failed to prove Mr. xxxxxxx's predisposition beyond a reasonable doubt, the jury would have viewed the evidence in a different light and might well have reached a different result. As the evidence and instructions stood, the jury was not presented with any defense to two of the four counts. Moreover, as to the two counts to which the intoxication defense was applicable, the court instructed the jury that in order for that defense to apply, the jury would have to find that Mr. xxxxxxx "was so under the influence of drugs that he did not know that it [the gun] was to be used in a drug trafficking crime and that he could not form an specific intent to transfer the gun . . . ." (11/14/96 Tr. 60) The evidence clearly did not support such a finding.

Under the instructions given, the jury had not choice but to convict because Mr. xxxxxxx's own testimony established that he was an illegal alien who transferred firearms to the undercover ATF agent. The jury had no way of knowing that a not guilty verdict was appropriate if the informant induced Mr. xxxxxxx, in the absence of predisposition, to possess and transfer the firearms. Given the strong evidence of inducement and the prosecution's failure to either rebut it or prove predisposition beyond a reasonable doubt, there is a reasonable probability that had the jury been properly instructed on the defense of entrapment, the outcome of the trial would have been different. See Foster v. Lockhart, 9 F.3d at 726 (to show prejudice on ineffectiveness claim, defendant need only undermine confidence in trial's outcome and need not show that he could not have been convicted but for counsel's deficient performance). Defense counsel's failure to properly litigate the entrapment issue precluded the jury from considering Mr. xxxxxxx's only complete defense and, therefore, rendered the result of the trial unreliable and fundamentally unfair. Because counsel's deficient performance deprived Mr. xxxxxxx of the fair trial to which he is entitled, a new trial is required.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxx's conviction must be reversed and his case remanded for a new trial. Alternatively, his case should be remanded to the district court for an evidentiary hearing on his ineffectiveness claim.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER









________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500









CERTIFICATE OF LENGTH



I hereby certify that the foregoing brief for appellant, Jose xxxxxxx, does not exceed the number of words permitted pursuant to D. C. Circuit Rule 28(d).







_________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender









CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on October , 1997, I have served by hand two copies of the foregoing Brief for Appellant Jose xxxxxxx and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.





___________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

1. "A." refers to pages of the Appendix filed with this brief. The references to the transcript of the district court proceedings are cited by date and page number (e.g., "11/13/96 Tr. ") and trial exhibits are cited by their exhibit numbers (e.g., "Gov. Ex. "). Pertinent portions of the transcript are contained in the Appendix behind Tabs A-C.

2. The evidence that the informant induced the defendant to commit the charged crimes was adduced through Mr. xxxxxxx's trial testimony. In determining whether the defense was entitled to an entrapment instruction, this evidence must be viewed in the light most favorable to the defendant and Mr. xxxxxxx's version of the facts must be considered as true. See United States v. Washington, 106 F.3d 983, 994 (D.C. Cir. 1997) (additional citations omitted).

3. Although all of the recorded conversations between Acosta and xxxxxxx were in Spanish, the jury was provided with transcripts containing English translations of the conversations. (See 11/12/96 Tr. 74-75, 85-86, 89-92)

4. Counsel later waived Mr. xxxxxxx's opening statement. (11/14/96 Tr. 9)

5. It is not clear under this Court's cases whether the defendant's burden is "met by convincing the jury that there is some evidence of government inducement," Burkley, 591 F.2d at 914 (emphasis in original), cert. denied, 440 U.S. 966 (1979), or whether a defendant has the "burden of proving inducement, not just producing evidence of it." United States v. Whoie, 925 F.2d 1481, 1483 (D.C. Cir. 1991). This question need not be resolved in the instant case because Mr. xxxxxxx met his burden of proving inducement even under the more stringent standard of Whoie.

6. After charging the jury, the trial judge stated for the record that although he was of the opinion that intoxication was not a valid defense to the knowledge element of the 924(h) charges, he gave the intoxication instruction because the government proposed it. (11/14/96 Tr. 65-66)

7. "PSR" refers to the Presentence Report. A copy of the PSR is made part of the Appendix but filed separately under seal.

8. Because the trial record conclusively shows that counsel's abandonment of the entrapment defense could not have been a tactical decision, thereby entitling Mr. xxxxxxx to relief, this Court can review this claim on the existing record without a remand for an evidentiary hearing in the district court. See United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir. 1995).