FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
Levchuk, with whom Bulkley, Richardson and Gelinas, LLP was
on brief, for appellant.
Begg Lawrence, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Lynch and Selya, Circuit Judges, and Burroughs, [*] District Judge.
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.
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.
start with an overview of the case, reserving pertinent
details for our ensuing discussion of specific issues.
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.
subdivide our discussion of the issues into four segments,
corresponding to the defendant's asseverational array.
The Entrapment Defense.
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.
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)).
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
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
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.
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
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
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.
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 ...