
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          February 13, 1996     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR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                              _________________________          No. 94-2239                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                RAFAEL SARIT-ROSARIO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Roderick B. O'Connor on brief for appellant.               ____________________               Sheldon Whitehouse, United States  Attorney, and Margaret E.               __________________                               ___________          Curran and Lawrence D. Gaynor, Assistant United States Attorneys,          ______     __________________          on brief for appellee.                              _________________________                              _________________________                    Per Curiam.   Following a two-day  trial, a jury  found                    Per Curiam.                    __________          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                                                                        ___          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.               ___  _____________     _______          1994);  United States v. Rodriguez,  858 F.2d 809,  812 (1st Cir.                  _____________    _________          1988).   "[T]he  defense fails  if the  jury is  persuaded beyond          reasonable doubt that either [element] is lacking in a particular                                ______          case."   Rodriguez,  858 F.2d  at 815.   The  mere fact  that the                   _________                                          2          government afforded  the defendant  an opportunity to  commit the          crime does not prove entrapment.  See United States v. Coady, 809                                            ___ _____________    _____          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                                                                        ___          United States  v. Valle, ___ F.3d  ___, ___ (1st Cir.  1995) [No.          _____________     _____          95-1832, slip op. at 13]; Gifford, 17 F.3d at 467.  Applying this                                    _______          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);          ___  _____________    ______          see also Fed. R. Crim. P. 30, 52(b).          ___ ____                    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,                                              ___ ______                                        ____________________               1We note in passing  that Morel's testimony was corroborated          in important particulars by other evidence in the record.                                          3          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                         ___  ____  _______                  _________          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.          ___  ____  ______________     ____          1993) (collecting cases), cert. denied,  114 S. Ct. 1839  (1994).                                    _____ ______          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.                    ________                                        ____________________               2We do  not imply that this claim has any force.  That issue          is not before us.                                          4
