
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 96-1036                                    UNITED STATES,                                      Appellee,                                          v.                                  CARMELO MONTA EZ,                                 Defendant-Appellant.                                     ____________                                     ERRATA SHEET               The opinion of  this Court  issued on January  28, 1997,  is          amended as follows:                On Page 7, second line from bottom, delete the "s" after the          apostrophe in "Monta ez."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1036                                    UNITED STATES,                                      Appellee,                                          v.                                  CARMELO MONTA EZ,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                _____________________               David L. Martin, by Appointment of the Court, for appellant.               _______________               Margaret E. Curran,  Assistant United States Attorney,  with               __________________          whom Sheldon  Whitehouse, United  States Attorney, and  Zechariah               ___________________                                _________          Chafee,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                   January 28, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    BARBADORO,  District  Judge.    A  jury  found  Carmelo                    BARBADORO,  District  Judge.                                _______________          Monta ez  guilty of  distributing  and  conspiring to  distribute          crack cocaine.   Because we  conclude that  the district  court s          entrapment  instruction did  not adequately  apprise the  jury of          Monta ez  theory  of  defense, we  vacate both   convictions  and          remand for a new trial.                                            I.                                          I.                    The   government  presented  evidence   at  trial  that          Monta ez  sold an  undercover  agent an  ounce  of crack  cocaine          ( crack ). Monta ez  conceded that he distributed  the crack, but          contended that he had been entrapped by Cheryl Lauber, one of the          agent s informants.1                    Monta ez testified  that he  met  Lauber while  smoking          crack at a friend s house and thereafter smoked crack with her on          a regular basis.   He and Lauber later lived  together for a time          with Lauber s children  at a friend s  apartment.  Several  weeks          after  they met, Lauber told  Monta ez that she  needed money and          asked him  to buy her two kilos of  cocaine so that she could re-          sell it at  a higher price.  Monta ez responded  by claiming that          he did  not know where to buy such a  large amount of cocaine and          that he did not have enough money to buy even an ounce.                                          ____________________          1  Not surprisingly, the government offered considerable evidence          to  refute Monta ez  version of the events leading to his arrest.          We  describe the  evidence from  Monta ez  perspective  since the          sufficiency of the court s  entrapment instruction must be judged          from  this standpoint.  United  States v. Flores,  968 F.2d 1366,                                  ______________    ______          1367 (1st Cir. 1992).                                         -2-                    Lauber kept insisting that Monta ez buy cocaine for her          to resell.  Her persistence finally paid off after Lauber and the          children were  expelled from their friend s  apartment and Lauber          claimed that she would  lose her children unless she  could raise          enough money  to buy furniture for an apartment and a car to take          the  children  to  school.     On  October  21,  1994,   Monta ez          reluctantly agreed to find someone to sell them an ounce of crack          the  next day so  that Lauber could  resell it to a  friend for a          profit.                     The  next  afternoon, Lauber  and the  undercover agent          drove  up to the apartment  where Lauber s friend  was living and          waited in  the agent s van for  the crack to arrive.   The seller          eventually  appeared  and  went  into the  apartment.    Monta ez          emerged  a short  while  later and  delivered  the crack  to  the          undercover agent.  He was arrested two months later.                      Monta ez testified at trial that he  made no money from          the crack sale and that he participated only to help Lauber.                                         II.                                         II.                    The district  court properly instructed  the jury  that          the  defense   of  entrapment  has  two   components:    improper          government  inducement and  lack of  predisposition.   See United                                                                 ___ ______          States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996);  United States v.          ______    _____                                  _____________          Gendron, 18 F.3d 955,  961 (1st Cir.),  cert. denied, 115 S.  Ct.          _______                                 ____________                                         -3-                                          3          654 (1994).  Only  the court s instruction on the  former element          is in dispute.2                     When  charging  the jury  on  improper  inducement, the          court stated:                      [I]mproper inducement goes beyond providing                    an ordinary opportunity to commit a crime. It                    is  typically  excessive   pressure  by   the                    government   upon   the   defendant  or   the                    government taking advantage of an alternative                    noncriminal type  of motive.  And  I think it                    might help you if I give you some examples of                    improper  inducement.   These may  be tactics                    such as intimidation  and threats against the                    defendant's   family,   calling  every   day,                    threatening defendants,  engaging in forceful                    solicitation and dogged insistence  until the                    defendant  gives  in   and  capitulates   and                    commits the crime.                      Now,  what I've just said are only a few of                    course,   a  few   examples  that   help  you                    understand a government  overreaching of  its                    having acted unfairly by employing methods of                    persuasion   or   inducement   that   created                    substantial risk  that such an  offense would                    be committed by a person other than those who                    are ready to commit.          After deliberating for approximately forty-five minutes, the jury          sent  the court  a question, asking   If someone is  induced by a          government informant, is this considered as possible entrapment?           The  court responded  by  repeating its  previous instruction  on          inducement  and by stating that   Cheryl Lauber was  acting as an                                        ____________________          2   A defendant  is entitled to  an entrapment instruction  if he          produces  sufficient  evidence  of  lack  of  predisposition  and          improper inducement to  raise[ ] a reasonable doubt as to whether          he   was  an  unwavering  innocent  rather  than  an   unwavering          criminal.     Joost,  92 F.3d  at 12,  (quoting United  States v.                        _____                             ______________          Hern ndez, 995 F.2d 307,  313 (1st Cir.), cert. denied,  510 U.S.          _________                                 ____________          954  (1993)(citations   omitted)).    The   government  does  not          challenge Monta ez  right to an instruction on entrapment.                                         -4-                                          4          agent  of the government . . .  .   Both times Monta ez asked the          court to illustrate  how an  appeal to sympathy  can serve as  an          improper inducement  by using several examples  drawn from United                                                                     ______          States  v. Gendron, 18 F.3d at 962.3   The court s failure to use          ______     _______          these  examples  serves  as  the basis  for  Monta ez   principal          argument on appeal.                                        III.                                          III.                      We  have  repeatedly  recognized that  a  defendant  is          entitled to an instruction on his theory of defense if sufficient          evidence  is produced  at trial  to support  the defense  and the          proposed  instruction  correctly  describes the  applicable  law.          United States v. McGill,  953 F.2d 10, 12 (1st Cir. 1992); United          _____________    ______                                    ______          States v. Zeuli, 725 F.2d 813, 817 (1st Cir. 1984); United States          ______    _____                                     _____________          v. Flaherty,  668 F.2d 566, 581  (1st Cir. 1981).   However , the             ________          trial court need not repeat the requested instruction verbatim as          long as  the charge as a whole adequately informs the jury of the          viability of the defense.    United States v. DeStefano,  59 F.3d                                       _____________    _________          1, 2-3 (1st Cir. 1995); United States v. Arcadipane, 41 F.3d 1, 8                                  _____________    __________                                        ____________________          3  Monta ez  asked the  court to include  the following  examples          from Gendron:               _______                    (4) play[ing] upon  defendant's sympathy  for                    informant's  common narcotics  experience and                    withdrawal   symptoms;  (5)   play[ing]  upon                    sentiment of one former war buddy for another                    to get liquor (during prohibition); . . . (7)                    [telling] defendant that she (the  agent) was                    suicidal and in desperate need of money."            Gendron,  18  F.3d  at  961-62  (citations  omitted)  (quotations          _______          omitted).                                          -5-                                          5          (1st  Cir. 1994).    Moreover, the  court   is not  obligated  to          instruct  on  every  particular  that  conceivably  might  be  of          interest  to the  jury.    DeStefano,  59  F.3d at  3  (citations                                     _________          omitted).  Therefore, a trial court s failure to deliver a theory          of  defense instruction will result  in reversal only  if (1) the          requested instruction correctly describes the applicable law; (2)          sufficient  evidence   is  produced  at  trial   to  warrant  the          instruction; (3)  the charge  actually delivered does  not fairly          present  the  defense; and  (4)  the  requested instruction   was          essential  to  the  effective  presentation   of  the  particular          defense.   United  States v. Passos-Paternina, 918  F.2d 979, 984                     ______________    ________________          (1st  Cir. 1990), cert. denied,  499 U.S. 982,  and cert. denied,                            ____________                      ____________          501 U.S. 1209, and cert. denied, 501 U.S. 1210 (1991).                             ____________                    The  government cannot  dispute  the  validity  of  the          proposed instruction in this  case as it was drawn  directly from          our opinion  in Gendron.  See  Gendron, 18 F.3d at  961; see also                          _______   ___  _______                   ________          United  States v.  Gifford,  17 F.3d  462,  468 (1st  Cir.  1994)          ______________     _______          (government   agent s   arm-twisting    based  on   sympathy  can          constitute  improper   inducement).    Nor   can  the  government          successfully argue that the evidence did not warrant the proposed          instruction, because a reasonable jury  could have concluded from          the evidence  presented at  trial that Lauber  improperly induced          Monta ez  to distribute the crack by claiming that she could lose          her children if  the sale  did not go  through.  Accordingly,  we          focus  our  analysis  on the  adequacy  of  the district  court s          improper inducement  charge and  the government s claim  that any                                         -6-                                          6          deficiency  in  the charge  did  not  seriously impair  Monta ez           ability to present his defense.                     The  district  court informed  the  jury  that improper          inducement  can result  from  either  excessive  pressure by  the          government  upon   the  defendant  or   the  government s  taking          advantage of  an alternate  non-criminal type  of  motive.    The          government  contends  that since  this  is  undeniably a  correct          statement of law, see Gendron, 18 F.3d at 961, the court gave the                            ___ _______          jury enough information to permit  it to evaluate Monta ez  claim          that Lauber entrapped him by an appeal to sympathy.  We disagree.                    Of  course, the  district  court has  a  great deal  of          latitude in  formulating a  charge.   But taken  as a whole,  the          examples  given were  all  either coercion  examples or  involved                                ___          abstractions ( dogged  insistence ) rather far from  the examples          of inducement by an undue appeal to sympathy, which the defendant          expressly requested and which were more pertinent to his defense.          By omitting  any  sympathy   examples, the  trial court  may well          have  left the jury with the mistaken impression that coercion is          a  necessary  element of  entrapment and,  in  this case,  such a          misunderstanding could well have affected the outcome.                    We also reject the  government s claim that the court s          failure  to  give the  requested  instruction  did not  seriously          undermine Monta ez   ability to  present his defense.   Monta ez           only realistic hope of an acquittal was to leave the  jury with a          reasonable doubt  about whether Lauber improperly  induced him to                                         -7-                                          7          participate in the drug deal by appealing to his sympathy for her          alleged plight.   Since  the court s  charge failed  to otherwise          adequately inform  the jury of  Monta ez  theory of  defense, the          convictions cannot stand.                                          IV.                                         IV.                    For the  reasons discussed  above, we vacate  Monta ez           convictions and remand for a new trial.4                                        ____________________          4  Since we have  vacated the convictions, we do not  address the          other arguments Monta ez raises on appeal.                                          -8-                                          8
