936 F. 2d 581 - United States v. Ortiz

Nos. 90-50292, 90-50294.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and WARE, District Judge*.

MEMORANDUM**

Thomas Joseph Castillo ("Castillo") and Gerardo Francisco Ortiz ("Ortiz") appeal their convictions following a jury trial for conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Appellants contend that they were entitled to judgments of acquittal because they were entrapped as a matter of law, and that the trial court committed reversible error by admitting evidence of Castillo's gun collection. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we AFFIRM.

The trial court instructed the jury on the defense of entrapment, and the jury returned verdicts of guilty against both Castillo and Ortiz. The district court did not err in denying appellants' motions for acquittal based on their defense of entrapment. Entrapment exists as a matter of law only where there is uncontroverted evidence of lack of predisposition. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). Because it was not patently clear on the record that Castillo and Ortiz were not predisposed to commit the crimes, the issue was one for the jury to decide after weighing the credibility of the witnesses. Accordingly, the district court did not err in concluding that Castillo and Ortiz failed to demonstrate entrapment as a matter of law. See Smith, 802 F.2d at 1125.

The trial court did not abuse its discretion by admitting evidence of Castillo's gun collection. It was proffered on rebuttal after Castillo testified he had acted in fear of the informant. The evidence was therefore probative of his credibility, dealing in drugs, and predisposition to engage in the narcotics trade. United States v. Crespo De Llano, 838 F.2d 1006, 1018 (9th Cir.1987); United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943 (1988). Nor did receipt of this evidence unduly prejudice Ortiz; he was arrested with Castillo in the course of a drug transaction, in Castillo's garage, where drugs, drug paraphernalia, and the locked gun safe were found. Those guns were relevant to Ortiz's intent to distribute as well. As to both defendants, Castillo's testimony that his guns were part of an antique collection was for the jury to assess. Both convictions are

AFFIRMED.