United States v. Magdaleno Hermosillo-Nanez, United States of America v. Mario Carrasco-Garcia

Appellants’ objections are consolidated for appeal. They arise out of a heroin sale to undercover DEA agents and the defendant-appellants’ jury trial for conspiracy to possess and distribute heroin and for possession of heroin.

On appeal, Hermosillo-Nanez contends that he was entrapped as a matter of law. Carrasco-Garcia raises two issues: (1)

whether the jury was presented with sufficient evidence to sustain a conviction and (2) whether the trial court committed reversible error in instructing the jury.

I. ENTRAPMENT

If a government agent persuades an unwilling person to commit a crime and thereby traps an unwary innocent instead of an unwary criminal, there is entrapment as a matter of law. Sherman v. United States, 356 U.S. 369, 372 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958). As the court has made clear, however, it is not the degree of government participation that is critical, but rather the predisposition of the defendant. United States v. Russell, 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976).

Young, an undercover informant, visited Hermosillo-Nanez frequently during the eighteen months…