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UNITED STATES v. KHADIR GHANAYEM

January 20, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
KHADIR GHANAYEM, Defendant.


Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

Following a jury trial, Khadir Ghanayem was convicted of conspiracy to possess cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2, and was found not guilty of attempt to possess cocaine, with intent to distribute. *fn1" Ghanayem now moves for judgment of acquittal, pursuant to Fed. R. Crim. P. 29(c), contending, inter alia, that the government failed to prove beyond a reasonable doubt that he was not entrapped. Ghanayem moves in the alternative for a new trial, pursuant to Fed. R. Crim. P. 33.

 BACKGROUND

 Ghanayem was charged in a two-count indictment, alleging that between March 30, 1993 and May 23, 1993, Ghanayem was part of a conspiracy to possess, with the intent to distribute, kilogram quantities of cocaine. At trial, evidence was presented that Ghanayem: (1) met with undercover agent William Grant of the Drug Enforcement Agency about setting up a large cocaine purchase; (2) discussed the particulars of the transaction with agent Grant; and (3) introduced agent Grant to his cousin, Mazen Shunnarah, for the purposes of consummating the deal. On October 20, 1993, after a three-day trial, the jury found Ghanayem guilty of conspiracy to possess cocaine and not guilty of attempt to possess cocaine. Ghanayem's motion in open court for judgment of acquittal was denied. In his post-trial motions, Ghanayem again moves for judgment of acquittal, raising numerous challenges to his conspiracy conviction. Ghanayem moves in the alternative for a new trial.

 DISCUSSION

 1. Motion For Judgment Of Acquittal

 In challenging a conviction under Fed. R. Crim. P. 29(c), Ghanayem "carries a heavy burden." United States v. Campbell, 985 F.2d 341, 344 (7th Cir. 1993). Ghanayem must show that, viewing the evidence in the light most favorable to the prosecution, a rational jury could not have found him guilty. See United States v. Ortiz, 5 F.3d 288, 292 (7th Cir. 1993). In reviewing Ghanayem's conviction, the court does not assess the credibility of witnesses, weigh evidence, or draw inferences -- these are solely jury functions. See United States v. Marquardt, 786 F.2d 771, 780 (7th Cir. 1986). Instead, the court must determine whether the government has presented evidence on every element of its case sufficient for the jury to have found Ghanayem guilty beyond a reasonable doubt. Id.

 Chief among Ghanayem's challenges is that his conviction was the result of entrapment. Ghanayem contends that a rational jury could not have found him guilty beyond a reasonable doubt because he established the defense of entrapment as a matter of law. Ghanayem asserts that the government presented no evidence of prior disposition to commit the crime, while he presented ample evidence of inducement. He concludes that the government's failure to prove predisposition is sufficient to warrant his acquittal.

 2. Entrapment/Predisposition

 The entrapment defense is based on the premise that "the function of law enforcement officials . . . does not include the manufacturing of crime." Sherman v. United States, 356 U.S. 369, 372, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958). Accordingly, government agents may not "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Sorrells v. United States, 287 U.S. 435, 442, 77 L. Ed. 413, 53 S. Ct. 210 (1932). The defense of entrapment is designed to "prevent the police from turning a law-abiding person into a criminal." United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991).

 Entrapment is established if: (1) the defendant shows that he was induced to commit the crime; and (2) the government cannot prove beyond a reasonable doubt that the defendant was disposed to commit the crime prior to being approached by the government. See Jacobson v. United States, U.S. , 112 S. Ct. 1535, 1540 (1992); United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993). In practice, the inducement and predisposition elements of the entrapment defense tend to merge. See Groll, 992 F.2d at 759 ("inducement and predisposition are not wholly distinct from each other"); United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991) (the entrapment test "suggests a certain semantic disarray"). The central inquiry for the jury was whether Ghanayem possessed "something like predisposition, in the sense of inordinate willingness to participate in criminal activity." Evans, 924 F.2d at 717.

 The government does not seriously dispute that Ghanayem was induced to commit the crime for which he was convicted. The government's brief virtually concedes that there was some inducement in this case by declaring equivocally that there was "almost no inducement by government agents." Response at 4 (emphasis added). As discussed below, there was substantial evidence of inducement presented by the government's evidence. Hence, the sole issue in this case is predisposition. See Jacobson, 112 S. Ct. at 1540-41 n. 2 (when government does not dispute inducement, the sole issue is whether government carries its burden on predisposition). The burden was on the government to establish beyond a reasonable doubt Ghanayem's predisposition to engage in drug trafficking. See Id. at 1540.

 Ghanayem argues that the government did not meet its burden of proving predisposition because it presented no evidence to establish prior intent. Motion P 5. The government was not required to present direct proof that Ghanayem was inclined to commit the offense; Ghanayem's predisposition to engage in the drug conspiracy could be established through circumstantial evidence. In Jacobson v. United States, U.S. , 112 S. Ct. 1535, 1541 (1992), the Supreme Court found that predisposition may be inferred from the circumstances of the crime. The Court wrote that when agents offer a defendant the opportunity to commit a crime and the defendant "promptly avail[s] himself of this criminal opportunity," the entrapment defense fails as a matter of law. Thus, at a minimum, the government was required to establish circumstantially that Ghanayem was inclined to participate in a conspiracy to distribute cocaine.

 In determining whether a defendant was predisposed to commit an offense, the Seventh Circuit has relied on factors such as an overall assessment of the defendant's character, evidence of prior offenses, an apparent reluctance to commit the crime, and the nature of the government inducement. See United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.), cert. denied sub nom. Gonzalez v. United States, 474 U.S. 831, 88 L. Ed. 2d 80, 106 S. Ct. 99 (1985); United States v. Rivera-Espinoza, 905 F.2d 156, 158 (7th Cir. 1990). The Seventh Circuit has found that there is a "presumption of predisposition resulting from the criminal undertaking." United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993). However, the burden is ultimately on the government to prove predisposition beyond a reasonable doubt. Id.

 On Ghanayem's motion for acquittal, the court must determine whether the government presented sufficient evidence from which the jury could conclude beyond a reasonable doubt that Ghanayem was predisposed to engage in a drug conspiracy. Upon reviewing the evidence presented, it is clear that the government did not present sufficient evidence.

 3. The Government's Predisposition Evidence

 
a. The government presented no evidence that Ghanayem had a previous drug history

 The first factor routinely relied upon by the Seventh Circuit weighs heavily against a finding of predisposition. The government presented no evidence that Ghanayem had ever been involved in, arrested for, or convicted of any drug offense -- or any other offense. Indeed, no evidence was presented to suggest that Ghanayem ever had anything to do with illegal drug trafficking. *fn2" The lack of evidence of prior drug dealing should have ...


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