United States v. Nicholas Sterner

23 F.3d 250 UNITED STATES of America, Plaintiff-Appellee, v. Nicholas STERNER, Defendant-Appellant. No. 91-50745. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1994. Decided May 2, 1994. David A. Katz, Katz & Associates, Los Angeles, CA, for defendant-appellant. Patricia Donahue, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: SNEED, THOMPSON, and RYMER, Circuit Judges. Opinion by Judge SNEED; Dissent by Judge RYMER SNEED, Circuit Judge: 1 Nicholas Sterner appeals his conviction and sentence for conspiracy to sell and for delivery of stolen treasury checks in violation of 18 U.S.C. Secs. 371 and 510. Because the entrapment instructions given to the jury misstated the law as set forth in Jacobson v. United States, --- U.S. ----, 112 S.Ct. 1535 , 118 L.Ed.2d 174 (1992), we reverse Sterner's conviction and remand for a new trial. I. FACTS AND PRIOR PROCEEDINGS 2 On March 25, 1991, government informant Wayne Pedersen notified the Orange County District Attorney's Office that Nicholas Sterner had solicited him to purchase stolen income tax refund…

Opinion by Judge SNEED; Dissent by Judge RYMER

Nicholas Sterner appeals his conviction and sentence for conspiracy to sell and for delivery of stolen treasury checks in violation of 18 U.S.C. §§ 371 and 510. Because the entrapment instructions given to the jury misstated the law as set forth in Jacobson v. United States, — U.S.-, 112 S.Ct. 1535 , 118 L.Ed.2d 174 (1992), we reverse Sterner’s conviction and remand for a new trial.

I.

FACTS AND PRIOR PROCEEDINGS

On March 25, 1991, government informant Wayne Pedersen notified the Orange County District Attorney’s Office that Nicholas Sterner had solicited him to purchase stolen income tax refund checks. 1 Pedersen knew Sterner from prison, where both served time for fraud.

Shortly after their initial conversation, Sterner and Pedersen began negotiating the sale of approximately $100,000 in stolen treasury checks. 2 Meanwhile, Sterner was also negotiating with Amelia Venida to supply the stolen checks to be sold to Pedersen. On April 2, Sterner gave Pedersen a sample check procured from Venida, telling him that the suppliers had 100,000 checks worth up to $13,000 each. Sterner and Pedersen finalized the details of the sale by…

dissenting:

Accepting, as I am bound to by United States v. Lessard, 17 F.3d 303, 306 (9th Cir.1994), that an instruction deficient under United States v. Mkhsian, 5 F.3d 1306, 1311 (9th Cir.1993), amounts to plain error, I nevertheless respectfully dissent because I believe the district court’s instruction in this case satisfies Mkhsian .

The two paragraphs of the district court’s instruction quoted by the majority, maj. op. at 252, appear at first blush to run afoul of Mkhsian’s holding that “ ‘[ajlready’ does not necessarily mean ‘before the [government intervened[.]’ ” 5 F.3d at 1311 (second alteration in original) (quoting Jacobson v. United States, — U.S. -, -, n. 2, 112 S.Ct. 1535 , 1541 n. 2, 118 L.Ed.2d 174 (1992)). But that is not all that the district court stated in its entrapment instruction, and I am convinced that the extra language the district court included satisfies Mkhsian .

As I read Mkhsian , and in particular its reference to other cases where the district courts’ instructions provided correct statements of the law, see id., a proper entrapment instruction must direct the jury’s attention to the defendant’s criminal disposition before government officers…