Rodriguez

MEMORANDUM

Francisco Rodriguez appeals his convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act in violation of 18 U.S.C. § 1962 (d) and for conspiracy to commit murder in aid of racketeering activity in violation of 18 U.S.C. § 1959 (a)(5). He alleges, inter alia, that the district court erred by instructing the jury on entrapment under California law as opposed to federal law. We have jurisdiction under 28 U.S.C. § 1291 . We agree, and we reverse Rodriguez’s conviction and remand for a new trial.

The government concedes that if an entrapment jury instruction should have been given, the district court erred by giving the California state entrapment instruction instead of an instruction based on federal law; the two are markedly different. The government nonetheless contends that the error was harmless because, it argues, Rodriguez was not entitled to an entrapment instruction at all.

To be entitled to an entrapment instruction, “the defendant need present only some evidence, which may be of doubtful credibility.” United States v. Gurolla, 333 F.3d 944, 955 (9th Cir.2003) (internal citations omitted). Other cases refer to the defendant’s…