United States v. Pena

• Court: Court of Appeals for the First Circuit
• Decided: November 17, 1999
• Docket: 99-1247
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 99-1247

UNITED STATES,

Appellee,

v.

RAMON PENA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Stahl, and Lipez Circuit Judges.

Charles W. Groce, III for appellant. Kevin O'Regan, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

November 16, 1999

STAHL, Circuit Judge. After a five-day jury trial, defendant-appellant Ramon Pena was found guilty of having violated 21 U.S.C. 841(a), which makes it unlawful "knowingly or intentionally . . . [to] manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Pena challenges (1) the district court's failure to instruct the jury on the defense of entrapment, and (2) the court's denial of his motion for acquittal as a matter of law based on the entrapment defense. We reject both arguments, and therefore affirm. I. Factual and Procedural Background Pena, a native of the Dominican Republic, emigrated to Puerto Rico in 1985, leaving behind a wife and five children. In 1989, he moved to New York City, and in 1992, he relocated to Springfield, Massachusetts. Upon arriving in Springfield, Pena began to work at a convenience store. During this time, he sent funds to support his family in the Dominican Republic. After about eight months, Pena was injured in an automobile accident which left him unable to work. He soon began to use marijuana and to traffic in controlled substances. In July, 1995, Pena pleaded guilty to various drug- related state offenses, as well as two counts of illegal possession of a firearm. He served two years in prison in Ludlow, Massachusetts. Pena's I-551 Permanent Resident Card (commonly called a "green card") and all of his possessions were seized upon arrest. After his release from prison in July 1997, Pena moved in with his nephew in Springfield -- an apparent drug dealer -- and began to search for a job. According to Pena, because he was unable to reclaim his green card upon release, he was limited to menial employment. Pena ultimately found work as a welder, earning approximately $150.00 per week. He sent about $100.00 to his wife and children in the Dominican Republic each week after he had attempted, unsuccessfully, to bring them to the United States in order to alleviate their financial difficulties. Because Pena's claim of entitlement to a jury instruction on entrapment requires us to view the evidence in the light most favorable to the defendant, see, e.g., United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998) -- and because, as described below, our resolution of that claim renders further inquiry unnecessary -- the following account of the events leading to Pena's conviction is taken entirely from Pena's own testimony. During the summer of 1997, while walking to work, Pena encountered Julia Cruz, who lived on the corner of his street. Unbeknownst to Pena, Cruz was a confidential government informant. During their first meeting, Cruz never broached the subjects of drugs or drug sales. Asked at trial whether he told Cruz anything about himself at that point, Pena testified that "[a]ll I just told her was that I was looking for a [better] job and that I needed my green card, that I hadn't gotten it back from the police and that I was looking for a job. I needed it because I needed to help my family because I had been in jail . . . two years." The next time the two met, Cruz asked Pena into her house, where she told him that she was hoping to "sell drugs for a Dominican" and that "she wanted to get drugs [to] sell." Pena "told her that [he] wasn't involved in that, that [he] wasn't going to do that," and that he "had been in jail . . . [and as a result] was going to do something else [for a living]." Cruz and Pena continued to exchange pleasantries as Pena walked to work each day. Finally, Cruz again invited Pena into her home. There, she "told [Pena] she wanted [him] to help her," and asked whether he had "some friends out there who sell drugs[.]" Pena told her that he "had a friend [who worked with drugs] but [again said] that [he] wasn't . . . going to do that anymore." Nonetheless, Pena did contact Omar Almanso, a friend from prison who, after his release, had resumed his commerce in illegal drugs. Almanso refused to deal with Cruz. Cruz then suggested to Pena that they could both make money if Pena would help her sell drugs instead. Pena testified that Cruz did not threaten him in any way. Pena agreed to help her. When asked to explain his decision, Pena testified at trial that "[e]ach time I called [my family] I wouldn't be able to help my children. I didn't have any work to help them buy their books, to buy what they needed, and so they had to use borrowed books for school." Two weeks later, Cruz hailed Pena as he walked past her home. She told him that she needed to speak with him about something "urgent." Cruz told Pena "she had a customer for [him] who had been a customer of hers before, and that [Pena and Cruz] could sell to him and that [Pena] should go and that [they] would both earn something from it." In fact, Cruz's "buyer" was Agent John Jusino of the Chicopee, Massachusetts Police Department. Pena went to Almanso, who sold him one hundred (100) bags of heroin for $500.00. Pena and Cruz agreed to resell the heroin for $650.00. This price included a $100.00 profit for Pena and a $50.00 profit for Cruz. On October 6, 1997, Cruz called Pena to tell him that her "buyer" would meet them the next day and that Pena should come to her house so that the two could go together to make the sale. On October 7, Pena walked to Cruz's house, and the two then drove to meet Jusino. During their meeting, Jusino told Pena that in addition to heroin, he was also interested in buying cocaine. Pena replied that he had a friend from whom he could obtain cocaine. The two executed the sale. Pena kept his $100.00 profit and gave $50.00 to Julia. Following the initial meeting with Jusino, Pena obtained a beeper to facilitate subsequent sales. Pena and Jusino met five more times, during which the former sold the latter heroin and, on one occasion, crack cocaine. Pena and Cruz divided the proceeds of all six sales. Almanso supplied Pena with almost all of the drugs Pena sold, but on one occasion, Pena obtained heroin from the nephew with whom he was living. During his meetings with Jusino, Pena spoke knowledgeably about the various drugs his supplier offered. He told Jusino that he could obtain heroin, cocaine, and crack cocaine. Asked at trial how he knew about these drugs, Pena replied that Almanso "had all of those and thought that [Pena] might need to sell [them] to [his] customers." On one occasion, when Jusino questioned the quality of the heroin, Pena admits that he replied, "No, no, no, this is good. My bosses can't handle all the orders. . . . This is good and guaranteed, you're going to call again." During their sixth and final meeting, Jusino arrested Pena. Pena was tried and convicted on five counts of having sold controlled substances in violation of 21 U.S.C. 841. This appeal followed. II. Discussion Pena argues first that he was entitled to acquittal, as a matter of law, based upon the entrapment defense, and second that even if he was not so entitled, the district court erred in refusing to instruct the jury on that defense. Both of Pena's claims hinge on the particular elements of the entrapment defense. "[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, 485 U.S. 58, 63 (1988); see also United States v. Acosta, 67 F.3d 334, 337 (1st Cir. 1995) ("The legal tests for entrapment are well established. What is required is (1) that the government induce the offense and (2) that the defendant not be predisposed to commit it."); United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994); United States v. Pratt, 913 F.2d 982, 988 (1st Cir. 1990). Even if Pena's testimony were assumed to be entirely truthful, he has failed to state facts sufficient to satisfy the "inducement" prong. We therefore affirm the district court's rulings. A. Pena's Entitlement to an Entrapment Instruction Before discussing the merits of Pena's claim, we first address the legal standards involved. In evaluating a district court's refusal to instruct the jury as to the entrapment defense, the question we must ask is whether the defendant has put forth evidence which, if viewed in the light most favorable to the defense, could prompt a reasonable juror to find that both prongs of the entrapment test have been met. See, e.g., Gamache, 156 F.3d at 9 (concluding that a defendant is "entitled to an instruction on his theory of defense so long as the theory is a valid one and there is evidence in the record to support it"); United States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993) (holding that in order to merit an entrapment instruction, a defendant must "produce[] some evidence -- on both elements of the entrapment defense -- sufficient to raise a reasonable doubt as to whether he was" entrapped); United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988) (requiring "hard evidence" supporting both prongs). The initial burden of producing evidence sufficient to establish the two entrapment prongs falls on the defendant. "If an accused suggests that entrapment belongs in the case, it seems not unfair to expect him to point to a modicum of evidence supportive of his suggestion. The alternative -- that the prosecution be forced to disprove entrapment in every case -- seems plainly unacceptable." Rodriguez, 858 F.2d at 813-14; see also United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987); Kadis v. United States, 484 F.2d 370, 374 (1967). The issue, then, turns on the sufficiency of the evidence put forth by the defense. See Rodriguez, 858 F.2d at 814 ("[T]he accused's burden is measured by the . . . sufficiency-of- the-evidence yardstick."). Although the requisites for entitlement to an entrapment instruction are far from taxing, a defendant's threshold burden cannot be met by conclusory assertions alone; only "hard evidence in the record which, if believed by a rational juror, would suffice to create a reasonable doubt as to whether government actors induced the defendant to perform a criminal act that he was not predisposed to commit" will suffice. Rodriguez, 858 F.2d 814 (emphasis added); see also United States v. Gifford, 17 F.3d at 467 (emphasizing the defendant's "'entry-level burden' of showing that 'the record, viewed most charitably to the proponent of the instruction, furnishes an arguable basis' for an assertion of the defense." (quoting Rodriguez, 858 F.2d 809, 812-13)). The evidence need not be "'so substantial to require, if uncontroverted, a directed verdict of acquittal [but] it must be more than a mere scintilla.'" Pratt, 913 F.2d at 988 (quoting Kadis, 373 F.2d at 374); see also Gifford, 17 F.3d at 467; Rodriguez, 858 F.2d at 814. Where the facts, viewed in the light most favorable to the defendant, fail to satisfy the legal requisites for the entrapment defense, no instruction is warranted. In light of these standards, we review the decision below de novo: "The existence or nonexistence of the required quantity of evidence in a given case is a matter of law for the court, and thus our review is plenary, reading the record evidence in the light most favorable to the defense." United States v. Young, 78 F.3d 758, 760 (1st Cir. 1996); see also Rodriguez, 858 F.2d at 814. 1. The Inducement Prong As stated above, a defendant who asserts the entrapment defense must first prove that the government "induced" his criminal conduct. "[I]nducement requires something more than that a government agent or informant suggested the crime and provided the occasion for it. Rather, inducement 'consists of [providing] an "opportunity" plus something else -- typically, excessive pressure by the government . . . or the government's taking advantage' of the defendant in an improper way." Acosta, 67 F.3d at 337 (quoting United States v. Gendron, 18 F.3d 955 (1st Cir. 1994)); see also Young, 78 F.3d at 761; Pratt, 913 F.2d at 988 ("[The] defendant must make a showing 'that a government agent turned him from a righteous path to an iniquitous one.'" (quoting Coady, 809 F.2d at 122)). It is well established that it is proper (i.e., not an "inducement") for the government to use a "sting," at least where it amounts to providing a defendant with an "opportunity" to commit a crime. Without this kind of law enforcement weapon, it would often prove difficult, or impossible, to stop certain seriously criminal activity, particularly activity involving drugs, or corruption, or other crimes in which no direct participant wants the crime detected. Gendron, 18 F.3d at 961 (internal citations omitted); see also Mathews v. United States, 486 U.S. 58, 66 (1988) ("[E]vidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant [an entrapment] instruction."); Pratt, 913 F.2d at 989 ("The fact that [a government agent] put up the pretense of being a drug dealer, and solicited [defendant's] business, does not, without more, make the government's involvement rise to the level of entrapment."); Coady, 809 F.2d at 122 (finding no improper inducement where government agent merely "created a criminal opportunity by asking [defendant] to involve himself, and sweetened the pot with an offer of payment"). In order for a sting to constitute entrapment, then, the government must engage in some kind of coercion -- the "something else" alluded to in Acosta. In Gendron, we reviewed examples of conduct that courts had considered "improper." Inducement was found where government officials: (1) used "intimidation" and "threats" against a defendant's family; (2) called every day, "began threatening" the defendant, and were belligerent; (3) engaged in a "forceful" solicitation and "dogged" insistence until [defendant] capitulated"; (4) played upon defendant's sympathy for informant's common narcotics experience and withdrawal symptoms; (5) played upon sentiment on "one former war buddy . . . for another" to get liquor (during prohibition); (6) used "repeated suggestions which succeeded only when defendant had lost his job and needed money for his family's food and rent; (7) told defendant that she (the agent) was suicidal and in desperate need of money.

Gendron, 18 F.3d at 961-62 (internal citations omitted); see also Acosta, 67 F.3d at 338 (requiring evidence of threats, "improper appeals to sympathy, promises of extravagant reward, or . . . relentless and extreme trickery"); Gifford, 17 F.3d at 468 (noting that inducement involves "pleading with a defendant," "using inherently coercive tactics," or "arm-twisting based on need, sympathy, friendship, or the like"). In light of the principles governing the entrapment defense and of these examples of governmental overreaching, we direct our inquiry to whether Pena offered evidence sufficient to mandate an entrapment instruction to the jury. We conclude that he did not. Pena's entrapment defense is based on the following assertions: Cruz befriended him, mentioning on their first meeting that she was looking to procure drugs for resale. Pena told her he was not involved in such matters. When, on a later visit, she asked him whether she might obtain drugs from a friend of his, he agreed to inquire. That friend declined, but when Cruz then asked Pena to sell narcotics as her partner, he agreed -- without any coercion whatsoever -- and proceeded to engage in a total of six sales before his arrest. Asked why he assented to Cruz's offer, Pena cited only his children's need for new, rather than borrowed, books. These facts simply could not support a finding of improper "inducement." Cruz and Agent Jusino did, of course, provide Pena with an opportunity to commit the crimes for which he was convicted. But as we have stated, such behavior does not, absent further coercion, constitute inducement. Pena describes no such coercion here. The activities in which Cruz and Jusino engaged fail even arguably to match the examples of misconduct cited in Gendron. No witness testified that either Cruz or Jusino employed "intimidation" or "threats," that either played upon Pena's common narcotics experiences or any other form of sentiment, or that either told Pena they were suicidal and in desperate need of drugs or money. See Gendron, 18 F.3d at 961-62. Even those cases cited in Gendron which bear some resemblance to the facts before us differ in critical respects. Pena's testimony contained no support for a finding that the government made "repeated suggestions" that he could earn money by dealing drugs. See Gendron, 18 F. 3d at 961; see also Acosta, 67 F.3d at 338 (finding that entrapment instruction would be required when government perpetrated a "campaign of persistent [telephone] calls" in its attempt to lure defendant into committing an offense"). In fact, Pena testified that although he initially expressed a hesitance to become involved in drugs, when Cruz actually suggested at a later date that the two could make money by selling narcotics together, he agreed without resisting. Moreover, there is no hint that Cruz "called [Pena] every day, 'began threatening' [him], and [was] belligerent." Gendron, 18 F.3d at 961 (citing United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993)). Individually, the Gendron examples each evidence far more coercive government activity than was present in this case; collectively, they demonstrate that even as Pena states the facts, the government's activities could not be held to constitute improper inducement. The facts of Pena's case fall much closer to those in United States v. Young, 78 F.3d 758 (1st Cir. 1996). Defendant Young claimed he had met and become friendly with one Al Hendricks while both were enrolled in a narcotics detoxification program. Hendricks insisted upon talking about drugs both during the program and after its termination. Hendricks ultimately told Young that he wanted to obtain certain controlled substances, and Young agreed to supply him. The two agreed that they would together purchase and resell heroin. But unbeknownst to Young, Hendricks had become a government informant, and the "buyer" Hendricks "found" was a DEA agent. Upon making the sale, Young was arrested. See id. at 759. At Young's trial, the district court refused to instruct the jury on the entrapment defense. Young appealed. See id. at 760. We affirmed, finding that Young "never testified that Hendricks used [their] friendship as leverage constituting the 'opportunity plus something else' legally required for a finding of inducement," or that Hendricks otherwise pressured him. Id. at 762. Pena's case largely mirrors Young's. Cruz befriended Pena, as Hendricks had befriended Young. Cruz and Pena discussed drugs. Ultimately, Cruz proposed that she and Pena together sell drugs to a buyer who was, in fact, a government agent -- just as Hendricks had proposed to Young. Neither Pena nor Young testified that the informant took advantage of any bond of friendship in encouraging the sale. Like Young, Pena cannot claim that he was "induced" by a government informant's actions. We conclude here, as we did in Young, that "[t]here was no testimony or other evidence, let alone 'hard evidence,' of coercion or intimidation." Id. at 761. Furthermore, we are unpersuaded by Pena's contention that his family's financial needs transformed what would have been a permissible government operation into illegal entrapment. First, it is far from clear that Pena presented sufficient evidence to ground a belief that the government was even aware of those financial needs. The entirety of the testimony offered on this matter was the following exchange between Pena and his counsel concerning Pena's first meeting with Cruz: Q: Well, did you tell her anything about yourself that particular . . . time?

A: All I just told her was that I was looking for a job and that I needed my green card, that I hadn't gotten it back from the police and that I was looking for a job. I needed it because I needed to help my family because I had been in jail in Ludlow two years. Although Pena testified more specifically at trial about his family's financial circumstances, he never testified that he had informed Cruz of these circumstances. Pena's family's hardship could not be found to contribute to an entrapment finding if the government was not even aware of that hardship during its undercover operation. Even if the government had been aware of Pena's financial situation, however, such hardship does not have the legal effect Pena suggests. Pena's argument rests on his contention that he agreed to sell drugs with Cruz only because he "didn't have any work to help [his children] buy their books, to buy what they needed, and so they had to use borrowed books for school." But as we stated in United States v. Panet-Collazo, 960 F.2d 256 (1st Cir. 1992), "[e]ntrapment does not blossom whenever a person succumbs to his own greed or to the lure of easy money." Id. at 259 (quoting United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987)). Although one could be sympathetic to Pena if his children had been in a dire situation, their need for new, rather than borrowed, books is hardly sufficient to establish "inducement" where none existed otherwise. 2. The Predisposition Prong Because we find no improper inducement, we need not determine whether Pena was predisposed to commit the crimes in question. The government argues that the evidence regarding predisposition was such that the entrapment defense would fail as a matter of law on that ground alone. But the district court did not appear to rely on this ground, and, in light of Pena's failure to meet the requirements of the "inducement" prong, we need not do so either. Pena's inability to raise evidence sufficient to ground a finding of improper inducement alone rendered a jury instruction on the entrapment defense inappropriate. B. Entrapment as Matter of Law In ascertaining whether a defendant established entrapment as a matter of law, we review the record de novo, see United States v. Ellis, 168 F. 3d 558, 561 (1st Cir. 1999), to determine whether it contains "undisputed facts" demonstrating entrapment. Tzimopoulos v. United States, 554 F.2d 1216, 1217 (1st Cir. 1977); see also Jacobson v. United States, 503 U.S. 540, 554 (1992). Having found that Pena has failed to present evidence even permitting a finding of improper inducement, we naturally decline to find that the same evidence required such a finding. For the reasons described in Part II.A, supra, Pena has not established entrapment as a matter of law. III. Conclusion Pena failed to introduce evidence sufficient to ground a finding that he was "induced" to commit the offenses underlying his convictions. For this reason, the district court properly refused to instruct the jury on the entrapment defense and properly denied Pena's claim of entrapment as a matter of law. Affirmed.