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United States v. Montoya

United States Court of Appeals, First Circuit

December 19, 2016

LUZANDER MONTOYA, Defendant, Appellee.


          Andrew Levchuk, with whom Bulkley, Richardson and Gelinas, LLP was on brief, for appellant.

          Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Lynch and Selya, Circuit Judges, and Burroughs, [*] District Judge.

          SELYA, Circuit Judge.

         When a person is caught red-handed in the commission of a crime, assiduous defense counsel often is tempted to consider an entrapment defense. In the case before us, the defendant followed this course - but things did not go well for him. Among his other plaints, the defendant insists that the district court forced him to show his hand prematurely. And to make a bad situation worse, the court - at the conclusion of all the evidence - ruled that the defendant had not carried his entry-level burden of producing sufficient evidence to send the entrapment defense to the jury.

         Following an adverse jury verdict and the imposition of sentence, the defendant now appeals. Ably represented, he advances several claims of error. After careful consideration, we affirm.

         I. BACKGROUND

         We start with an overview of the case, reserving pertinent details for our ensuing discussion of specific issues.

         On three occasions in the summer and fall of 2012, defendant-appellant Luzander Montoya sold heroin to a person surreptitiously cooperating with the federal government. A federal grand jury subsequently returned an indictment charging the defendant with three counts of possessing heroin with intent to distribute. See 21 U.S.C. § 841(a)(1). After a five-day trial, a jury found the defendant guilty on all three counts. The district court imposed a 132-month term of immurement and denied the defendant's motion for a new trial. This timely appeal followed.


         We subdivide our discussion of the issues into four segments, corresponding to the defendant's asseverational array.

         A. The Entrapment Defense.

         The defendant's principal claim is that the district court erred in refusing to instruct the jury on entrapment. Because the court grounded this refusal in what it perceived to be the insufficiency of the relevant evidence, we review its ruling de novo, examining the record in the light most favorable to the defendant. See United States v. Shinderman, 515 F.3d 5, 13 (1st Cir. 2008).

         A defendant must make a two-part threshold showing in order to put an entrapment defense before the jury. First, he must adduce some evidence "that the government induced the commission of the charged crime." Id. at 14. Second, he must adduce some evidence that he "lacked a predisposition to engage in [that crime]." Id. In short, the defendant has an entry-level burden of production, which requires him to furnish "'some hard evidence' that 'governmental actors induced [him] to perform a criminal act that he was not predisposed to commit.'" Id. (alteration in original) (quoting United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988)).

         If - and only if - the defendant makes this required "prima facie showing, " id., the issue of entrapment is teed up to go to the jury. See United States v. Ramos-Paulino, 488 F.3d 459, 462 (1st Cir. 2007); United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987). Once that prima facie showing has satisfied the defendant's entry-level burden of production, the government must shoulder the burden of proving beyond a reasonable doubt that entrapment did not occur. See Coady, 809 F.2d at 122.

         Against this backdrop, we turn first to the defendant's claim that he made a prima facie showing of improper inducement. On its face, this claim does not look promising: while the cooperating witness (the CW) approached the defendant seeking to buy heroin, the law is settled that merely showing that the government presented a person with an opportunity to commit a crime is not enough to show improper inducement. See United States v. Guevara, 706 F.3d 38, 46 (1st Cir. 2013); see also United States v. Díaz-Maldonado, 727 F.3d 130, 139 (1st Cir. 2013) (differentiating between "government inducement" and "improper government inducement"). Beyond showing that the government afforded him the opportunity to commit the crime, the defendant must adduce evidence that the government engaged in some kind of "overreaching conduct." Díaz-Maldonado, 727 F.3d at 138. Such conduct might include, for example, intimidation, threats, relentless insistence, or excessive pressure to participate in a criminal scheme. See id. at 137.

         To lay the groundwork for a finding that the government did more than create an opportunity for the commission of a crime, a defendant may identify "plus" factors - factors that suffice to transform run-of-the-mill stage-setting into improper government inducement. See Guevara, 706 F.3d at 46; United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). The defendant strives to identify several such factors. To begin, he notes that he and the CW were friends and suggests that the government played upon this friendship to lure him into wrongdoing that he otherwise would have eschewed. Next, he suggests that the CW's references to his (the CW's) heroin addiction prompted the defendant to make the sales out of sympathy. Neither of these suggestions qualifies as a "plus" factor.

         The mere existence of friendship, in and of itself, does not constitute improper inducement. See United States v. Young, 78 F.3d 758, 761-62 (1st Cir. 1996). Friendship becomes relevant to this inquiry only if the defendant can show that the government cooperator so appeals to friendship as to cause a non-predisposed defendant to commit the crime. In other words, there must be an "accompanying allegation of coercion, threat, or plea based upon friendship . . . that would constitute more than mere opportunity." Id. at 762; see United States v. González-Pérez, 778 F.3d 3, 12 (1st Cir.), cert. denied, 135 S.Ct. 1911 (2015) (finding no prima facie showing of improper inducement when defendant "cite[d] no evidence indicating that [the government cooperator] solicited his participation by appealing directly to their friendship"); Díaz-Maldonado, 727 F.3d at 138 (similar). Here, the defendant presented evidence indicating that he and the CW were friends; he presented no evidence, though, indicating that the CW appealed to this friendship to get the defendant to sell him heroin. On this record, a jury could have found that the CW betrayed the defendant, but not that he improperly induced the defendant into committing the crime.

         This leaves the defendant's suggestion that the CW's heroin addiction constituted a "plus" factor. Although the CW used his addiction as one of the reasons that he was seeking to purchase heroin, that passing reference to addiction did not suffice to create a "plus" factor. See Young, 78 F.3d at 761-62. There must be some evidence that the government cooperator used his addiction either to engender sympathy or to create a sense of urgency, cf. Gendron, 18 F.3d at 961 (noting that improper inducement might be found when the government took unfair advantage of defendant's sympathy for cooperator's withdrawal symptoms), and the defendant introduced no such evidence ...

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