Tuesday, March 12, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the conviction of a man involved in what the U.S. Attorney’s Office has described as “a vast international criminal conspiracy engaged in drug trafficking and money laundering,” rejecting his contention that government misconduct compels a reversal.
A memorandum opinion by a three-judge panel was filed Friday.
The appellant, Youval Geringer-Ganor, was convicted by a jury, in the courtroom of District Court Judge S. James Otero of the Central District of California. Otero sentenced him in 2016 to five years in prison, with the defendant having served a portion of that sentence and now being on supervised release.
On appeal, Geringer-Ganor contended that he was set up by the government. Testimony to the contrary by undercover Drug Enforcement Agency special agent Willivan Rojas, Geringer-Ganor’s appointed counsel, Pasadena attorney Verna Wefald, told a three-judge panel at oral argument in Pasadena on Feb. 4, was insufficient to overcome an outrageous-conduct defense.
She recited that her client was arrested at a warehouse in San Dimas, in possession of 5 kilos of cocaine. The lawyer declared:
“[T]he other agents that were involved and the local officers testified that they deliberately sent Mr. Geringer there to pick up the dope so they could arrest him. There is a dispute as to whether Mr. Geringer would ever have involved himself in drug dealing.”
The appellant’s opening brief argues:
“One of the goals of this sting operation was to get Geringer in possession of drugs….Rojas suggested drug deals to Geringer a couple of times. However, Geringer told Rojas: ‘I’m not doing it. I’m telling you right now, I’m not doing it for tons of money.’ ”
“Most outrageous, of course, is the decision by government agents to have Geringer be the specific person to be caught with five kilos of cocaine (carrying a mandatory minimum ten years in prison) just so they could arrest him—after he repeatedly told the undercover agents he would never do drug deals for any amount of money.”
The brief maintains that the government orchestrated the events, asserting:
“The government supplied all the cash and the drugs. The government chose the meeting places.”
The government’s brief counters:
“The government did use artifice and stratagem to ferret out criminal activity, but its sting operation basically did no more than provide an opportunity for criminal activity to willing, and in defendant’s case enthusiastic, participants. Such conduct falls short of the inducement necessary for an entrapment defense and does not come close to the ‘intolerable government conduct’ necessary to justify a dismissal based on outrageous government conduct.”
The Ninth Circuit agreed with the government. Its opinion says:
“The government’s infiltration of the existing money laundering organization and provision of the cash and drugs Geringer-Ganor used to conduct the money laundering operation do not amount to outrageous government conduct.”
Geringer-Ganor faulted Otero for declining to hold a hearing on the outrageous-conduct motion—explaining, “I’m very familiar with the facts of the case, having presided over a previous trial”—and making no findings. Friday’s opinion responds:
“[T]he district court did not commit plain error by failing to make findings of fact about the government’s motivations. Even without the benefit of the district court’s factual findings, this court affirms based on the evidence at trial because the government’s conduct is straightforward.”
“Finally, the district court did not err by declining to give a dual role jury instruction regarding the testimony of two undercover agents. A dual role instruction was not required because the agent witnesses testified as lay witnesses, not experts, and personally participated in the investigation.”
Geringer-Ganor was a participant in a conspiracy masterminded by Moshe Matsri, whom Otero sentenced in 2015 to 32 years in prison.
The case is People v. Geringer-Ganor, 16-50363.
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