United States v. Jose Pena
675 F. App'x 735
| 9th Cir. | 2017Background
- Jose Pena was convicted by a jury of conspiracy to manufacture/distribute and of manufacturing at least 1,000 marijuana plants in violation of federal law and appealed.
- At trial Pena sought to present testimony about conversations with a confidential informant to support an entrapment defense; the district court sustained six government hearsay objections to that testimony.
- Agents who raided the grow site counted 1,019 plants and testified regarding their counting method and that counted plants had viable root balls.
- Pena did not object to the jury instructions at trial (including absence of a specific definition of “plant”), so review for instructional error is plain error.
- At sentencing the district court applied a four-level Sentencing Guidelines enhancement for an organizer/leader because the court found by a preponderance that five or more participants were involved, including one co-defendant (Contreras) who was acquitted at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of excluded hearsay testimony to support entrapment | Pena: should have been allowed to testify to contents of conversations with confidential informant | Gov’t: testimony properly excluded as hearsay; Pena made no offer of proof | Court: No plain error; Pena failed to make offer of proof and did not show substantial-rights prejudice |
| Sufficiency of evidence that conspiracy involved ≥1,000 plants | Pena: evidence insufficient; dispute over what counts as a "plant" | Gov’t: agents counted 1,019 plants and testified to observable root formation and counting method | Court: Evidence sufficient under Jackson; rational juror could find ≥1,000 plants |
| Failure to instruct jury on definition of “plant” | Pena: court should have given specific definition | Gov’t: Pena did not object at trial; review for plain error | Court: No plain error; Pena did not show prejudice to substantial rights |
| Four-level role enhancement under U.S.S.G. § 3B1.1(a) | Pena: not enough participants to qualify as organizer/leader | Gov’t: judge may find participation by preponderance; testimony showed Contreras participated | Court: No clear error; judge properly found five participants and that Pena was organizer/leader |
Key Cases Cited
- United States v. Kupau, 781 F.2d 740 (9th Cir.) (requirement of offer of proof for excluded testimony to preserve error)
- United States v. Conti, 804 F.3d 977 (9th Cir. 2015) (plain-error standard for unpreserved instructional or evidentiary error)
- United States v. Olano, 507 U.S. 725 (1993) (standard for plain-error review: effect on substantial rights and judicial integrity)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- United States v. Wanland, 830 F.3d 947 (9th Cir.) (de novo review of denial of acquittal motion for sufficiency)
- United States v. Robinson, 35 F.3d 442 (9th Cir. 1994) (definition of plant focuses on observable root formation)
- United States v. Berry, 258 F.3d 971 (9th Cir. 2001) (clear-error review for § 3B1.1 organizer/leader determination)
- United States v. Dota, 33 F.3d 1179 (9th Cir. 1994) (participant finding can be made despite criminal acquittal)