United States v. Jorge Cortes
2014 U.S. App. LEXIS 5176
| 9th Cir. | 2014Background
- ATF ran an undercover reverse-sting: agents fabricated a plan to steal 100 kg of cocaine from a stash house and arrested participants before any robbery occurred.
- Jorge Cortes was arrested after meetings where the undercover agent (posing as a disgruntled courier) described the stash house and split of drugs; Cortes recruited/organized a crew.
- Cortes was convicted of: (Count 1) conspiracy to possess with intent to distribute ≥5 kg cocaine (21 U.S.C. §§ 841(a)(1), 846); (Count 2) Hobbs Act conspiracy to affect commerce by robbery/extortion (18 U.S.C. § 1951); and (Count 3) possession of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)).
- At trial the court gave the Ninth Circuit model entrapment instruction but modified it following United States v. Spentz to state that the amount of drugs or potential profit "does not constitute an inducement supporting entrapment." Cortes also requested a sentencing-entrapment instruction; the court denied it.
- On appeal the Ninth Circuit held the district court misstated Spentz (it should have said amount/profit cannot alone establish inducement), reversed Cortes’s convictions, and remanded for retrial. The court also held sentencing-entrapment can, in some circumstances, be a jury question and rejected Cortes’s argument that the Hobbs Act excludes contraband.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Cortes) | Held |
|---|---|---|---|
| Modification of entrapment instruction per Spentz | The Spentz-based language was proper and clarified law | Court misstated Spentz by categorically excluding drug amount/profit as inducement; jury could consider such evidence as part of inducement | Court: Instruction overstated Spentz; amount/profit cannot alone establish inducement — reversal and remand for retrial; suggested corrected instruction |
| Sentencing entrapment (quantity element) | No right to jury instruction on sentencing entrapment; it is a sentencing issue | Sentencing entrapment can negate quantity element and affect statutory min/max — must be submitted to jury if evidence could change statutory range | Court: Sentencing entrapment must be tried to the jury when evidence could alter statutory minimum or maximum; remand if such evidence is presented at retrial |
| Applicability of Hobbs Act to contraband | Hobbs Act can reach robbery/extortion that affects interstate commerce | Hobbs Act limited to theft of lawful property; contraband excluded | Court: Hobbs Act covers robbery/extortion of contraband (e.g., drugs); Cortes’s motion to dismiss properly denied |
| Evidentiary rulings and sentencing reasonableness | (Government defended trial rulings and sentence) | Cortes challenged denial to fully impeach confidential informant and argued sentence unreasonable | Court: These issues were not reached on the merits because convictions vacated and case remanded for retrial (claims moot for now) |
Key Cases Cited
- United States v. Spentz, 653 F.3d 815 (9th Cir. 2011) (held that in a stash-house robbery sting the mere size of the potential payoff—i.e., the typical fruits of the crime—cannot by itself establish governmental inducement)
- United States v. Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013) (recognized sentencing-entrapment cognizable in fictitious stash-house robbery; defendant need show lack of intent or capability as to the charged quantity)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase statutory penalties must be submitted to a jury)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum sentences are elements and must be found by a jury)
- United States v. Briggs, 623 F.3d 724 (9th Cir. 2010) (discussed sentencing entrapment and reduction of drug quantity that flows from entrapment)