United States v. Sarit-Rosario

Opinion

USCA1 Opinion

February 13, 1996     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



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          No. 94-2239



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                RAFAEL SARIT-ROSARIO,



                                Defendant, Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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               Roderick B. O'Connor on brief for appellant.
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               Sheldon Whitehouse, United States  Attorney, and Margaret E.
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          Curran and Lawrence D. Gaynor, Assistant United States Attorneys,
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          on brief for appellee.



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Per Curiam.   Following a two-day  trial, a jury  found
                    Per Curiam.
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          defendant-appellant  Rafael  Sarit-Rosario   (Sarit)  guilty   of



          possessing heroin  with intent to  distribute in violation  of 21



          U.S.C.   841(a)(1)  & (b)(1)(C).   The district  court imposed  a



          thirty-month incarcerative sentence.  Sarit appeals.   Discerning



          no substantial question of law or fact, we summarily affirm.  See
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          1st Cir. R. 27.1.



                    Sarit's brief  purports to advance four  arguments, but



          the  first  two   are  merely  variations  on   the  same  theme.



          Consequently, there are  three issues presented  on appeal.   Two



          are meritless, and  the third   on  which we make no  qualitative



          judgment   is not properly before us.



                    1.  At trial,  Sarit pinned his hopes on  an entrapment



          defense.  Despite neglecting to move for judgment of acquittal at



          the close of all the evidence, Fed. R. Crim. P. 29, he now argues



          that the government  failed to  prove beyond  a reasonable  doubt



          that it had not entrapped him.  He is wrong.



                    Once  an entrapment  defense is  properly in  play, the



          government's proof must  be sufficient to  negate the claim  that



          (a) the government improperly induced the defendant to commit the



          offense, and (b) the defendant lacked a predisposition  to commit



          it.  See  United States v.  Gifford, 17 F.3d  462, 468 (1st  Cir.
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          1994);  United States v. Rodriguez,  858 F.2d 809,  812 (1st Cir.
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          1988).   "[T]he  defense fails  if the  jury is  persuaded beyond



          reasonable doubt that either [element] is lacking in a particular
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          case."   Rodriguez,  858 F.2d  at 815.   The  mere fact  that the
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2



government afforded  the defendant  an opportunity to  commit the



          crime does not prove entrapment.  See United States v. Coady, 809
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          F.2d 119, 122 (1st Cir. 1987).



                    On a  sufficiency challenge,  we must take  the record,



          and  all  reasonable  inferences  therefrom, in  the  light  most



          favorable to the government   and we must resolve all credibility



          conflicts  in the manner most  compatible with the  verdict.  See
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          United States  v. Valle, ___ F.3d  ___, ___ (1st Cir.  1995) [No.
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          95-1832, slip op. at 13]; Gifford, 17 F.3d at 467.  Applying this
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          standard, appellant's claim collapses.  If the jury believed  the



          version  of  the  transaction  to  which  the  prosecution's  key



          witness, Miguel Morel, testified, there was no entrapment.1



                    2.   Sarit  next challenges  the district  court's jury



          instructions anent entrapment.   This claim, too, is procedurally



          defaulted.   Having  failed  contemporaneously to  object to  the



          instructions,  he can prevail only upon a showing of plain error.



          See  United States v. Weston, 960  F.2d 212, 216 (1st Cir. 1992);
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          see also Fed. R. Crim. P. 30, 52(b).
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                    Even apart from this obvious procedural default, we see



          no error.  On appeal, Sarit asserts that the instructions did not



          apprise the jury that, in order  to convict, it must find that he



          intended to commit the crimes charged prior to any contact he may



          have  had with government  agents.  This  assertion misstates the



          law.  Taking the charge as a whole, see Weston, 960 F.2d at  216,
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               1We note in passing  that Morel's testimony was corroborated

          in important particulars by other evidence in the record.



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we  believe that  the  instructions  lay  out and  explicate  the



          elements of the entrapment defense with the requisite clarity and



          completeness.  See, e.g., Gifford, 17 F.3d at 468; Rodriguez, 858
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          F.2d at 812.  There was no error.



                    3.   Finally, Sarit asseverates that  his trial counsel



          provided  him with  constitutionally deficient  representation in



          derogation of his Sixth  Amendment rights.  This claim  is raised



          for  the first  time  on appeal.   We  decline  to entertain  it.



          Absent  exceptional  circumstances  (most assuredly  not  present



          here), fact-specific ineffective assistance claims not seasonably



          presented in the trial court cannot be broached on direct appeal,



          but must be pursued collaterally by recourse to 28 U.S.C.   2255.



          See, e.g., United  States v.  Mala, 7 F.3d  1058, 1063 (1st  Cir.
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          1993) (collecting cases), cert. denied,  114 S. Ct. 1839  (1994).
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          Hence, we dismiss this  claim without prejudice to Sarit's  right



          to pursue it collaterally.2



                    We need go  no further.   For the  reasons stated,  the



          judgment below is summarily


Affirmed.
                    Affirmed.
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               2We do  not imply that this claim has any force.  That issue

          is not before us.



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