United States v. Montanez
Procedural entryThis page is a short order in United States v. Montanez. Read the opinion of the Court — 82 F.3d 520 →
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 96-1036
UNITED STATES,
Appellee,
v.
CARMELO MONTA EZ,
Defendant-Appellant.
____________
ERRATA SHEET
The opinion of this Court issued on January 28, 1997, is
amended as follows:
On Page 7, second line from bottom, delete the "s" after the
apostrophe in "Monta ez."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1036
UNITED STATES,
Appellee,
v.
CARMELO MONTA EZ,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin, Circuit Judge, _____________
and Barbadoro,* District Judge. ______________
_____________________
David L. Martin, by Appointment of the Court, for appellant. _______________
Margaret E. Curran, Assistant United States Attorney, with __________________
whom Sheldon Whitehouse, United States Attorney, and Zechariah ___________________ _________
Chafee, Assistant United States Attorney, were on brief for ______
appellee.
____________________
January 28, 1997
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. A jury found Carmelo BARBADORO, District Judge. _______________
Monta ez guilty of distributing and conspiring to distribute
crack cocaine. Because we conclude that the district court s
entrapment instruction did not adequately apprise the jury of
Monta ez theory of defense, we vacate both convictions and
remand for a new trial.
I. I.
The government presented evidence at trial that
Monta ez sold an undercover agent an ounce of crack cocaine
( crack ). Monta ez conceded that he distributed the crack, but
contended that he had been entrapped by Cheryl Lauber, one of the
agent s informants.1
Monta ez testified that he met Lauber while smoking
crack at a friend s house and thereafter smoked crack with her on
a regular basis. He and Lauber later lived together for a time
with Lauber s children at a friend s apartment. Several weeks
after they met, Lauber told Monta ez that she needed money and
asked him to buy her two kilos of cocaine so that she could re-
sell it at a higher price. Monta ez responded by claiming that
he did not know where to buy such a large amount of cocaine and
that he did not have enough money to buy even an ounce.
____________________
1 Not surprisingly, the government offered considerable evidence
to refute Monta ez version of the events leading to his arrest.
We describe the evidence from Monta ez perspective since the
sufficiency of the court s entrapment instruction must be judged
from this standpoint. United States v. Flores, 968 F.2d 1366, ______________ ______
1367 (1st Cir. 1992).
-2-
Lauber kept insisting that Monta ez buy cocaine for her
to resell. Her persistence finally paid off after Lauber and the
children were expelled from their friend s apartment and Lauber
claimed that she would lose her children unless she could raise
enough money to buy furniture for an apartment and a car to take
the children to school. On October 21, 1994, Monta ez
reluctantly agreed to find someone to sell them an ounce of crack
the next day so that Lauber could resell it to a friend for a
profit.
The next afternoon, Lauber and the undercover agent
drove up to the apartment where Lauber s friend was living and
waited in the agent s van for the crack to arrive. The seller
eventually appeared and went into the apartment. Monta ez
emerged a short while later and delivered the crack to the
undercover agent. He was arrested two months later.
Monta ez testified at trial that he made no money from
the crack sale and that he participated only to help Lauber.
II. II.
The district court properly instructed the jury that
the defense of entrapment has two components: improper
government inducement and lack of predisposition. See United ___ ______
States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996); United States v. ______ _____ _____________
Gendron, 18 F.3d 955, 961 (1st Cir.), cert. denied, 115 S. Ct. _______ ____________
-3- 3
654 (1994). Only the court s instruction on the former element
is in dispute.2
When charging the jury on improper inducement, the
court stated:
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