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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8044
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN A. SANDOVAL,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( April 20, 1994 )
Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
Convicted under 18 U.S.C. § 201(b)(1) of two counts of bribing
a public official, Juan Sandoval appeals, claiming that he was
entrapped and that the counts on which he was convicted were
multiplicitous. For the reasons assigned we reverse.
Background
In December 1991 the Internal Revenue Service sent its agent
Isela Hernandez to the Sandoval home in El Paso to meet with the
defendant and his wife Maria. Maria Sandoval had been convicted of

embezzling money from her employer and the IRS sought to revise the
Sandovals' 1988 joint tax liability in light of the embezzlement
income. During this meeting Agent Hernandez expressed interest in
Maria Sandoval's comment that her former employers and co-workers
were not reporting all of their income. Maria Sandoval testified
that Hernandez told them that the IRS had a reward program for
reports of such information.1
In March 1992 Juan Sandoval called Agent Hernandez to inquire
about the delays in determining their tax liability. During that
conversation Sandoval said: "How can I say this? I would like to
make a deal with you." Agent Hernandez testified that although she
did not take this comment to refer to any criminal activity, she
had "never heard . . . that word 'deal' before" and Sandoval's
request to meet with her in person gave her "a gut feeling that
something was not right." She informed the IRS Internal Security
Division, and at their suggestion wore a recording device when she
met with Sandoval. Agents in the security division told Hernandez
to refuse any offer of information and insist on something tangible
from Sandoval.
Today's disposition is based primarily on the recording and
transcript of the conversation between Sandoval and Agent Hernandez
which took place at a prearranged luncheon several days later.
1Under the IRS reward program, 26 C.F.R. § 301.7623-1, the
Service will "approve such reward" as is "suitable for information
that leads to the detection and punishment of any person guilty of
violating any internal revenue law, or conniving at the same."
26 C.F.R. § 301.7623-1(a). Hernandez testified that she did not
recall explaining the program to the Sandovals.
2

Early on Sandoval explained his telephone reference to a deal by
stating rather haltingly "I'm used to deals in this and that . . .
but, uh, this guy that, that we know is, is living well beyond his
means . . . considerably . . . and he's a public official. . . .
And this guy's taking bribes and stuff like that, but what I wanted
to know is what, what would be in it for me to get you all this
stuff?" During the remainder of this meeting, Agent Hernandez
sought to steer Sandoval away from the reward for information
concept. "What's in it for me?" she asked on numerous occasions.
To Sandoval's offer of information which might lead to recognition
or promotion, Hernandez variously replied: "[T]his isn't the way
the system works"; a reward for information would "jeopardize my
career"; and, finally, "information, that's not enough." Agent
Hernandez, obviously conscious of the wire she was wearing,
insisted on several occasions that the deal she needed was one
"strictly between you and I."
Sandoval stated several times that he did not know how the
reward for information program worked and asked Hernandez to
explain. Despite the agent's repeated efforts to direct Sandoval
toward a tangible bribe he continued to offer only information. It
was only after a discussion covering 23 pages of transcript, ten
requests by Agent Hernandez for some personal benefit as opposed to
information, and at least three exclamations that what she sought
was "strictly between you and I," that Sandoval finally understood
that Hernandez was speaking of a bribe and not merely information.
At this point Hernandez again stated that she needed something
3

"besides the information, that's not enough." Sandoval asked with
discernible puzzlement: "The information is not enough?"
Hernandez responded "Not for me . . . to risk my career." After a
long pause, Sandoval slowly said: "I don't know. Let me think
about it a little bit."
Finally Sandoval inquired hesitantly about what Hernandez
needed. Hernandez responded "Hey, I scratch your back and you
scratch my back, you know. I mean, I can't do something for
nothing." In the face of Sandoval's reluctance, Hernandez reminded
him of the large tax liability he faced. At the conclusion of
their lunch Sandoval and Hernandez agreed to meet again to discuss
the matter, doing so several days later. Under the agreement then
struck, Sandoval was to pay Hernandez $3000 cash in two
installments and Hernandez would revise her report to reduce his
tax obligation roughly in half. Later in March Sandoval delivered
the first payment, remarking that he had never done anything like
this before. In April Sandoval delivered the remaining $1500.
Sandoval was indicted on four counts of bribing a public
official in violation of 18 U.S.C. § 201(b)(1). The first count,
dismissed for insufficient evidence at the close of the
government's case, charged Sandoval with bribing Agent Hernandez by
offering her information on lawbreakers as a "thing of value" to
influence her review of his tax returns.2 The second count charged
Sandoval with offering Agent Hernandez $3000 for a favorable tax
2As explained infra, this count should have been dismissed as
a matter of law. A request for prosecutorial lenience in exchange
for information on lawbreakers does not constitute a bribe.
4

assessment. The third and fourth counts each charge a count of
bribery for one of the $1500 payments. The jury did not reach a
verdict on count two but found Sandoval guilty on counts three and
four. Sandoval was sentenced to two concurrent 12-month terms of
imprisonment and a period of supervised release. He timely
appealed.
Analysis
Sandoval challenges his conviction, contending that as a
matter of law the government did not prove beyond a reasonable
doubt that he was predisposed to bribery, prior to and independent
of the government's inducements, as required by the Supreme Court's
recent teachings in Jacobson v. United States.3 We review this
assignment of error accepting every fact in the light most
favorable to Sandoval's conviction and may reverse only if no
rational jury could have found beyond a reasonable doubt that he
was predisposed to bribery.4
We begin our review with the Supreme Court's most recent
holding on entrapment. In Jacobson, government agents engaged in
a campaign of phony mailings to induce a Nebraska farmer to violate
the ban on child pornography contained in the 1984 Child Protection
3118 L.Ed.2d 174 (1992). Sandoval also contends that counts
two, three, and four were multiplicitous and that the district
court erred in not instructing the jury to ignore count one of the
indictment as evidence of predisposition. Given today's holding,
we do not reach these issues.
4United States v. Arditti, 955 F.2d 331 (5th Cir.), cert.
denied, 113 S.Ct. 597 (1992).
5

Act. After seven or eight mailings spanning 26 months, Jacobson
succumbed and ordered an illegal magazine. The Supreme Court held
as a matter of law that Jacobson had been entrapped. "In their
zeal to enforce the law . . . Government agents may not originate
a criminal design, implant in an innocent person's mind the
disposition to commit a criminal act, and then induce commission of
the crime so that the Government may prosecute."5 To defeat an
entrapment defense in such cases, "the prosecution must prove
beyond a reasonable doubt that the defendant was disposed to commit
the criminal act prior to first being approached by Government
agents."6 Given the government's persistent encouragements, the
Supreme Court found that Jacobson's "ready response to these
solicitations cannot be enough to establish beyond reasonable doubt
that he was predisposed, prior to the Government acts intended to
create predisposition, to commit the crime."7
The facts of the instant case involve government conduct every
bit as troubling as that described in Jacobson. Given that
Sandoval's offer of information was not a bribe8 but merely was the
5118 L.Ed.2d at 184.
6Id.
7Id. at 187.
8In the trial court the government submitted as evidence of
predisposition Sandoval's offer of information which it
characterized as a bribe attempt. Although it is a crime to
"directly or indirectly, corruptly give[], offer[] or promise[]
anything of value to any public official . . . with intent . . . to
influence any official act," 18 U.S.C. § 201(b), and while this
statute is broadly construed in order to effectuate its legislative
purpose of deterring corruption, no federal authority has ever
found that trading information for lenience runs afoul of 18 U.S.C.
6

pursuit of a legitimate reward for information, it is clear that
the IRS initiated the bribery scheme. Interpreting Sandoval's
early reference to a "deal" as his initiation of a bribe attempt is
untenable in light of the legal offer of information he thereafter
repeatedly tendered. It was only after Hernandez' persistent
requests for a personal benefit and the rejection of a reward for
information that Sandoval considered offering more. Even then he
expressed a desire to think about what Hernandez was proposing.
Confronted with Sandoval's expressed uncertainty, Agent Hernandez
emphasized his tax and penalty exposure to "pla[y] on [his]
weaknesses" and pressure him into accepting the scheme.9 We are
persuaded that the government originated the bribery scheme,
implanted it in Sandoval's mind, and induced him to cooperate.
Guided by Jacobson we inquire whether there is sufficient
evidence, prior to and independent of the government's inducement,
upon which a rational jury could have found predisposition.10
Although an eager acceptance of an opportunity to commit some
§ 201. The government's broad interpretation would criminalize the
IRS reward program and such established practices as the
prosecution recommending downward departures in sentencing for
helpful informants. Such actions are neither corrupt nor do they
involve "anything of value" as used in 18 U.S.C. § 201.
9Jacobson. In the context of their conversation, which
fortunately for Sandoval was recorded, the issue of amounts owing
could only have been raised to encourage Sandoval to join the
bribery scheme. Otherwise the agent's remarks were an utter non
sequitur.
10118 L.Ed.2d at 187 ("Rational jurors could not say beyond a
reasonable doubt that petitioner possessed the requisite
predisposition prior to the Government's investigation and that it
existed independent of the Government's many and varied approaches
to petitioner.").
7

illegal act may prove predisposition,11 Jacobson clarified the
boundaries of such substituted proof, rejecting it where
significant and persistent government encouragement was required to
induce the crime.12 As directed by the security division, Hernandez
doggedly steered Sandoval away from a legitimate reward for
information and toward a bribe.13 Despite her efforts, Sandoval was
reluctant about the transaction at its initial stages. Considering
the repeated efforts Hernandez had to make, Sandoval's consistent
and successive efforts to act legally, and his hesitation upon
11United States v. Hudson, 982 F.2d 160 (5th Cir.), cert.
denied, 114 S.Ct. 100 (1993) (reaffirming view that enthusiasm for
crime can satisfy predisposition requirement); Arditti, 955 F.2d at
343 ("Where there is no overwhelming evidence of serious
resistance, and the defendant jumped in with both feet, the
defendant is an eager, active participant and was therefore not
entrapped.").
12Jacobson, 118 L.Ed.2d at 185, 187 ("[W]here the defendant is
simply provided with the opportunity to commit a crime . . . the
ready commission of the criminal act amply demonstrates the
defendant's predisposition. . . . [Although Jacobson] had become
predisposed to break the law . . . the Government did not prove
that this predisposition was independent and not the product of the
attention that the Government had directed at petitioner"; after
persistent government efforts "to create predisposition,"
Jacobson's "ready response to these solicitations cannot be enough
to establish beyond reasonable doubt that he was predisposed.").
Jacobson limits but does not overrule Arditti because the latter
involved a mere offer of opportunity followed by eager
participation. In the Arditti factual scenario -- unlike the
instant case -- eagerness is a reliable substitute for evidence of
predisposition because in such cases the government's persistence
did not create the defendant's predisposition.
13The government distinguishes Jacobson, arguing that the
government pursued Jacobson for 26 months while Sandoval agreed to
bribe Hernandez after only one meeting. The time involved is less
important than the degree of pressure applied. Jacobson received
seven or eight mailings from the government over the course of 26
months. Compared to the full-court press utilized in the instant
case by Agent Hernandez, the government in Jacobson acted with
comparative restraint.
8

finally realizing the import of Hernandez' proposal, Sandoval's
entry into the government's scheme cannot fairly be construed as
"eager" any more than Jacobson's was.14
The only evidence offered of predisposition independent of
Hernandez' inducements was Sandoval's statement that in the past he
had paid "under the table . . . commissions" in doing business with
Mexican companies.15 The record does not reflect the recipients of
or bases for these "commissions." The Supreme Court found as a
matter of law that evidence of Jacobson's previous purchases of
pornographic material was insufficient to establish predisposition
because the previous purchases were legal. The Court concluded
that the previous conduct did not demonstrate the likelihood that
Jacobson would engage in such conduct after it became criminally
proscribed. Similarly, no rational jury could find that Sandoval's
statement about "commission" payments to unidentified Mexicans
14The government refers to Sandoval's failure to withdraw in
the last days of the crime as evidence of eager participation. We
are not persuaded. This does not provide the required evidence
that a dispostion existed prior to and independent of the
government's inducements.
15The government argues on appeal that if Sandoval had simply
wanted a reward for information, he would not have contacted Agent
Hernandez and asked to meet her for lunch outside of the office.
Sandoval explained to Hernandez at their lunch meeting that they
were both busy, and he wanted to save time by meeting with her
during their lunch break. Also Sandoval's earlier meetings had not
been held in Hernandez's office. Hernandez met with Sandoval and
his wife in Sandoval's home. Considering these background facts,
Sandoval's request to meet Hernandez for lunch is less than
ominous. The prosecutor did not consider this fact significant
enough to argue in closing to the jury that this fact supported
Sandoval's predisposition to bribe.
9

established a disposition to bribe IRS agents.16
Given our conclusion that Sandoval was entrapped, we need not
reach his remaining contentions.17 The judgment of the district
court is REVERSED and the matter is REMANDED with instructions to
dismiss the indictment with prejudice.
16As the Supreme Court explained: "[E]vidence that merely
indicates a generic inclination to act within a broad range, not
all of which is criminal, is of little probative value in
establishing predisposition." Jacobson, 118 L.Ed.2d at 185.
17It bears mentioning, however, that Sandoval's claim of
multiplicity as to the government's prosecution of each $1500
installment payment as a separate crime was meritorious.
10