
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1955                                    UNITED STATES,                                      Appellee,                                          v.                                   ALEJANDRO VEGA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                _____________________               Daniel  T.S. Heffernan,  by appointment  of the  Court, with               ______________________          whom Sugarman, Rogers,  Barshak &  Cohen, P.C. was  on brief  for               _________________________________________          appellant.               Kevin P.  McGrath,  Assistant United  States Attorney,  with               _________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                  December 19, 1996                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    SKINNER,  Senior District  Judge.   Alejandro Vega  was                    SKINNER,  Senior District  Judge.                              ______________________          charged in an eight-count indictment for conspiracy to distribute          and distribution of  cocaine base  in violation of  21 U.S.C.              841,  846 and unlicensed dealing  in firearms in  violation of 18          U.S.C.   922(a)(1)(A).  After the jury returned  a guilty verdict          on  five of  the  six counts  against Vega,  he was  sentenced to          thirty  years  incarceration.   On appeal,  Vega argues  that the          district  court erred  in refusing  to instruct  the jury  on the          defense of entrapment.  We affirm.                    Our  review   is  plenary  and,  where   the  issue  is          entitlement  to a jury instruction on a proposed defense, we take          the evidence  in  the  light  most favorable  to  the  defendant.          United  States v. Young, 78 F.3d 758,  760 (1st Cir. 1996).  This          ______________    _____          prosecution arose out of an undercover investigation conducted by          federal  agents in  the Bureau  of Alcohol, Tobacco  and Firearms          ("ATF") and the Drug  Enforcement Agency ("DEA").  In  the spring          of 1994,  a  confidential informant  working  for the  ATF,  Jos           Troche, had  purchased  a semi-automatic  handgun and  ammunition          from Ceferino Cruz, one  of Vega's co-conspirators.  On  July 12,          1994, Troche made arrangements with Cruz to purchase some "crack"          cocaine.    Later  that  day,  Troche  met  Cruz  at  La  Tambora          restaurant in Lawrence, Massachusetts.  Troche was accompanied by          DEA Special  Agent  Pamela Mersky  whom Troche  presented as  his          girlfriend.  Troche and Mersky purchased one ounce of crack and a          .38  caliber handgun from  Cruz.  Troche  told Cruz  that, in the                                         -2-          future, Mersky would appear on Troche's behalf when he was unable          to come.                    On  July 28, 1994, Agent Mersky  returned to La Tambora          in order  to make  an additional  narcotics and firearm  purchase          from  Cruz.  When she arrived, Cruz was occupied in conversation.          Mersky approached and  greeted Cruz  and then waited  a few  feet          away from him as he completed his conversation.  While Mersky was          waiting, Vega  approached  her and  asked  her what  she  wanted.          Mersky indicated that she was interested in buying crack cocaine.          Vega  responded  initially with  apparent bewilderment,  but when          Mersky  said that  Cruz had supplied her before,  Vega approached          Cruz and had a brief conversation with him.  After a moment, Vega          returned and again  asked Mersky  what she wanted.   She  replied          that she  wanted the same  thing as  the last time.   Vega  again          discussed the request with  Cruz and told Mersky that  she should          return in about an hour.                    When  Mersky returned to  La Tambora, she  and Vega sat          down at one of the tables.  A young  female, who turned out to be          Cruz's fifteen-year-old girlfriend,  approached them and  removed          from  her clothing a small  plastic bag containing  32.1 grams of          crack cocaine.   The three then completed the sale in the women's          restroom, where Mersky observed what she believed to be a handgun          in Vega's  waistband.  (The  object was  in fact a  knife with  a          five-inch black handle  and an  eight-inch blade.)   She said  to          Vega that she was interested in buying a handgun like  the one he          appeared to  have.  Vega replied that Cruz did not know about her                                         -3-          interest  in  a handgun,  but Vega  would  check with  Cruz about          obtaining a gun for  sale.  Mersky gave Vega her electronic pager          number and left the restaurant.                    Later  that afternoon, Vega  paged Mersky  and informed          her that  he had a  gun for  her.   The two arranged  to meet  at          another  restaurant near  La  Tambora.   When  Vega detected  the          presence of two undercover DEA surveillance agents at the meeting          place, he and Mersky went to La Tambora to complete the sale of a          .38  caliber handgun.  When Mersky started to leave, Vega offered          to accompany her.  She refused.   He then invited her to a  dance          later  that week.  Again, however, Mersky refused.  She indicated          she had a boyfriend and left the restaurant.                    Undeterred, Vega  paged Mersky  again on the  same day.          Mersky  indicated her dissatisfaction that the gun was not new as          Vega had represented.  He offered  her a better price on the next          gun and Mersky suggested a better  price for the cocaine as well.          When Vega equivocated,  Mersky suggested that she might  take her          business elsewhere.  Vega responded that he only wanted Mersky to          love him or like him.  Mersky laughed and said she could not love          him because she had a boyfriend.                     On  August 1,  1994,  Vega again  paged  Mersky to  see          whether  she needed  anything.   The  two  arranged to  meet  the          following day at  a restaurant near La Tambora.   Vega and Mersky          met  and walked  to La  Tambora.   She asked  about  getting some          cocaine.   Vega  sold Mersky  an additional  30.6 grams  of crack          cocaine.   Mersky also requested  a gun, but  Vega said he needed                                         -4-          additional  time.  He paged her again  later that day when he had          the gun, but Mersky did not want to meet until the following day.          On August  3, 1994, Vega and  Mersky met again at  La Tambora and          completed the sale of another firearm and additional ammunition.                    On August 4, 1994, Vega  paged Mersky several times  to          see  whether Mersky needed anything  more.  She  replied that she          would  not  need  anything  until the  end  of  the  week.   Vega          continued to page her for  the next few days, but Mersky  did not          respond.  On August 8, 1994, Mersky finally returned another page          from Vega and again indicated that  she did not need anything  at          that time.   Vega said  that he  had been worried  about her  and          that, for any business in the future, he would receive 3.5  grams          of cocaine as a commission.                    On  August 15, 1994, Vega paged Mersky to tell her that          he  had  two handguns  (.44 caliber  and  .38 caliber)  for sale.          Mersky asked about  more cocaine  and Vega said  he could  supply          her.   She told him she  would call the next day.   On August 16,          1994, Vega  met Mersky  at a  restaurant near La  Tambora.   They          walked  to  La  Tambora  and  Mersky  purchased  the  .38 caliber          handgun.  She  and Vega then  waited for the cocaine  supplier to          arrive,  whereupon Mersky  purchased 30.5  grams of  cocaine from          Vega.                    On  August 23, 1994, Mersky met Vega in the parking lot          of La Tambora.  They drove to Vega's apartment where he retrieved          a .44 caliber gun which he sold to Mersky.   Later that day, Vega          sold Mersky 61.3 grams of cocaine.                                         -5-                    Vega and his cohorts were arrested three days later.                    At  trial,   the  district   judge  indicated   at  the          conclusion  of   Mersky's  direct  testimony  that   he  did  not          anticipate the need to  instruct the jury on entrapment.   During          the charge conference, the  district judge discussed with counsel          this  circuit's  well  established  position  on  the  entrapment          defense  and concluded  that "there  just simply  is insufficient          evidence  of  entrapment."   (Tr.  at  5-99.)   Accordingly,  the          district  court did  not  instruct the  jury  on the  defense  of          entrapment.                    During  deliberation, the jury  presented a question to          the district court  in which  it asked whether  entrapment was  a          reasonable  defense  and, if  so,  whether  the  jury  could  get          clarification.   (Id. at  6-2.)  After  consultation with counsel                            ___          for  both sides,  the district  judge informed  the jury  that he          deliberately had omitted an instruction on entrapment because the          defense did not apply.   The jury subsequently returned  a guilty          verdict on five of the six charges against Vega.                    Vega contends that the  district court erred in failing          to   instruct  the  jury  on  the  defense  of  entrapment.    In          particular,  he argues that (1) Mersky induced Vega to commit the          crimes charged by playing on his alleged romantic interest in her          and  (2) there  was ample  evidence to  establish Vega's  lack of          predisposition to commit the crimes.  The record does not support          either of Vega's contentions.                                         -6-                    Our  position  on the  defense  of  entrapment is  well          settled:                        Entrapment  does  not blossom  whenever a                      person succumbs  to his  own greed or  to                      the lure  of easy money:   it blooms only                      when the crime for which the miscreant is                      subsequently  charged  was instigated  by                      minions of  the law and the  offender had                                          ___                      no    previous     disposition    towards                      commission of the deed.            United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987) (citing          _____________    _____          United  States v.  Fera,  616 F.2d  590,  596 (1st  Cir.),  cert.          ______________     ____                                     _____          denied,  446 U.S. 969, 100  S. Ct. 2951,  64 L.Ed.2d 830 (1980)).          ______          In other words, "a defendant is entitled to a jury instruction on          entrapment if there is record evidence  which fairly supports the          claims of both government inducement of the crime and defendant's          lack  of predisposition  to  engage in  it."   United  States  v.                                                         ______________          Rodr guez, 858 F.2d 809,  814 (1st Cir. 1988).   Although "[s]uch          _________          proof may, of course, be circumstantial rather than direct," id.,                                                                       ___          we have made  it clear that  "[w]hen all is said  and done .  . .          there must be some hard evidence in the record which, if believed          by a rational juror,  would suffice to create a  reasonable doubt          as to  whether government actors induced the defendant to perform          a criminal act that he was not predisposed to commit."  Id.                                                                      ___                    We  emphasize that  the defense  will not  be available          unless  both  elements  of  (1)  government  inducement  and  (2)          defendant's  lack  of criminal  predisposition  exist.   See  id.                                                                   ___  ___          Where either element is absent, the defense will be inapplicable.          Id.  at 814-15.    Accordingly, where  there exists  insufficient          ___          evidence to  establish government inducement, the  court need not                                         -7-          reach  consideration of  the evidence  on the  accused's criminal          predisposition, and vice  versa.   Young, 78 F.3d  at 762 &  n.3.                                             _____          Determining whether the appropriate quantum of evidence exists is          "a matter of law for the court."  Rodr guez, 858 F.2d at 814.                                              _________                    We  have  recently  had  the  opportunity  to   examine          relevant cases from the Supreme Court and several circuits on the          defense of entrapment, which we summarized as follows:                           In  describing "inducement,"  courts                      have  distinguished  between  proper  and                      improper law enforcement activities.   It                      is proper (i.e., not an "inducement") for                      the government to use a "sting," at least                      where it amounts to providing a defendant                      with an "opportunity" to commit  a crime.                      Without  this  kind  of  law  enforcement                      weapon, it would  often prove  difficult,                      or impossible, to stop  certain seriously                      criminal activity, particularly  activity                      involving drugs, or corruption,  or other                      crimes  in  which  no direct  participant                      wants the crime detected.                           An  improper "inducement,"  however,                      goes   beyond   providing   an   ordinary                      "opportunity  to  commit  a crime."    An                      "inducement" consists of an "opportunity"                      plus   something   else   --   typically,                      ____                      excessive pressure by the government upon                      the defendant or the  government's taking                      advantage of an alternative, non-criminal                      type of motive.   A "sting" that combines                      an ordinary opportunity with  these extra                      elements runs the risk of catching in the                      law  enforcement net  not only  those who                      might  well  have  committed   the  crime                      elsewhere  (in the absence of the sting),                      but  also  those  who  (in  its  absence)                      likely would never have done so.  Insofar                      as  the  net   catches  the  latter,   it                      stretches    beyond    its   basic    law                      enforcement purpose.                           Some     examples    of     improper                      "inducement" may help.  Courts have found                      a  basis for sending the entrapment issue                                         -8-                      to  the  jury   (or  finding   entrapment                      established  as a  matter  of law)  where                      government    officials:       (1)   used                      "intimidation"  and  "threats" against  a                      defendant's family, (2) called every day,                      "began  threatening"  the defendant,  and                      were   belligerent,    (3)   engaged   in                      "forceful"   solicitation   and   "dogged                      insistence        until       [defendant]                      capitulated," (4) played upon defendant's                      sympathy for informant's common narcotics                      experience  and withdrawal  symptoms, (5)                      played  upon sentiment of "one former war                      buddy .  . .  for another" to  get liquor                      (during prohibition),  (6) used "repeated                      suggestions"  which  succeeded only  when                      defendant  had lost  his  job and  needed                      money for  his  family's food  and  rent,                      [and]  (7) told  defendant that  she (the                      agent) was suicidal and in desperate need                      of money. . . .          United States v.  Gendron, 18  F.3d 955, 961-62  (1st Cir.  1994)          _____________     _______          (citations  omitted).  With these examples in  mind, we turn to a          consideration of the appeal now before us.                    Vega  asserts  that  Mersky   played  on  his  romantic          interest in her to induce him to commit the crimes  with which he          was charged.  In particular, he points to three particular pieces          of evidence to establish his purported romantic interest:  (1) on          July 28, 1994,  the initial date of contact,  Vega invited Mersky          to a  dance; (2) on  the same  date, Vega stated  that he  wanted          Mersky to love him; and (3) on August 2, 1994, Mersky embarrassed          Vega when he invited her to lunch, apparently for the purposes of          conducting  additional  firearms  and narcotics  sales,  and  she          replied that  he  did  not  have  any money  to  pay  for  lunch.          Examining  each of the instances raised by Vega, we conclude that          the record does not support his position.  At the outset, we note                                         -9-          that none  of the  circumstances  enumerated in  our decision  in          Gendron is present here.   Moreover, the scant evidence  on which          _______          Vega attempts to rely is unpersuasive.                      In  response to  the  July 28,  1994 dance  invitation,          Mersky replied that she had a  boyfriend and could not attend the          dance with  Vega.  Later  the same  day, when  an insistent  Vega          incongruously1 stated that he  wanted Mersky to love  him, Mersky                                        ____________________          1    The   transcripts  of  Mersky's   tape  recordings  of   her          conversations with Vega  suggest that he spoke  English with some          difficulty and that he only meant that he wanted Mersky to "like"          him so as  to continue doing business  with him.   Their exchange          regarding  whether the  first handgun  sold was  new as  Vega had          represented is as follows:                    MERSKY:                      I  forgive you this time, but if you take advantage                      next time, I'm never gonna see you again.                    VEGA:                      It  was not my intention, I didn't did it, I didn't                      did  it,   because  I  wanna  take   advantage,  or                      anything,  the same way I gave it to you wrapped up                      in the  paper bag, the same  way I gave it  to you,                      the same way I got it,  and I no even take it up  a                      no see it, nothing like that.                    MERSKY:                      Okay.                    VEGA:                      Alright.                    MERSKY:                      I like you, but don't make me hate you.                    VEGA:                      Alright.                    MERSKY:                      Okay?                    VEGA:                      No,  I just want  you to love  me, like me,                      just like you like me the first time.                                         -10-          laughed and repeated  that she  already had a  boyfriend.   Twice          Vega attempted  to engage  Mersky's affections  and twice  he was          rebuffed.   Far  from  supporting Vega's  contention that  Mersky          played  on   his   alleged  romantic   interest,   the   evidence          demonstrates  that   she  attempted  to   quash  his  unsolicited          affection.  As for  the allegedly embarrassing lunch incident  on          August 2,  1994, a  review of  the record makes  it difficult  to          determine  how  Mersky's  accusation,  standing alone  as  it  is          alleged, that Vega had no money  to pay for lunch could be viewed          as an inducement to criminal activity.  Even if Vega's version of          the  events   were  credible,   the  evidence  viewed   from  his          perspective would demonstrate, at  best, only that Mersky induced          him to profit from the illegal transactions, not that she induced          him to commit the illicit activity.                    As counsel  for the  government has noted,  Vega cannot          successfully portray himself,  as he has  attempted, as a  lonely                                        ____________________                    MERSKY:                      I  can't   love  you,  I  already   have  a                      boyfriend . . . (Laughs).                    VEGA:                      Oh, then like me, then like me, right, then                      like me.                    MERSKY:                      Okay, I like you a lot, you're very nice.                    VEGA:                      Thank you.                    MERSKY:                      Okay.          (Ex. 8A at 5.)                                         -11-          man eager to connect with the first unaccompanied female to enter          La  Tambora.  Vega himself informed Mersky  that as of August 23,          1994 he had been living with his girlfriend.                    It  should also be noted  that the instances which Vega          presents  as  events  of   inducement  each  occurred  after  the          completion of his initial  narcotics and firearm sale to  Mersky.          These  episodes cannot,  as  a  logical  proposition,  constitute          inducement for the  initial illegal  sale.  With  respect to  the          remaining  counts of  which  Vega was  convicted, the  undisputed          evidence  amply  demonstrates that  Vega  initiated  contact with          Mersky about each of the  subsequent narcotics or firearms sales.          In  fact, he attempted to initiate  numerous additional sales but          Mersky refused.                      Finally, Vega  relies on two of  this court's decisions          to bolster his appeal.  First, Vega cites Kadis v. United States,                                                    _____    _____________          373  F.2d 370  (1st  Cir. 1967),  to  support his  position  that          Mersky's conduct during Vega's initial encounter with her on July          28,  1994 constituted  inducement.   In Kadis,  we held  that the                                                  _____          district court properly submitted the evidence and instructed the          jury  regarding  entrapment in  a  case  where government  agents          obtained  refills   of  prescriptions  which  did  not  authorize          refills.    Id. at  374-75.   We  accordingly affirmed  the lower                      ___          court's decision.  The facts underlying our decision in Kadis are                                                                  _____          inapposite  to our disposition here.   The evidence  in this case          reveals that Vega approached  Mersky in La Tambora and  asked her          what  she  wanted.    Although  he  expressed  some  bewilderment                                         -12-          initially, after a  few moments,  he had conferred  with his  co-          conspirator  and was  prepared  to supply  Mersky with  narcotics          within an hour.  We reiterate what we stated in Kadis.  "Evidence                                                          _____          that the  defendant resisted  the criminal suggestion  raises the          question whether  his hesitation exhibited the  conscience of the          upright, or merely the  circumspection of the criminal."   Kadis,                                                                     _____          373  F.2d  at 374.    A  review of  the  record  reveals a  clear          demonstration of  the latter.  Mersky  did not plant the  seed of          criminality in Vega's mind; rather she merely represented herself          as a bona fide willing buyer.                    Second, Vega  relies on  our recent decision  in United                                                                     ______          States v.  Joost,  92 F.3d  7  (1st Cir.  1996),  as a  factually          ______     _____          analogous precedent  supporting  his  position  in  this  appeal.          While Joost  presented  us with  an  "unusual issue"  which  also                _____          confronts us here  -- to wit, whether as a threshold issue "there          had been, as a matter of law, no showing of improper inducement,"          id.  at 8 --  the facts in  the instant appeal  clearly warrant a          ___          different result.  Joost involved  an undercover operation by two                             _____          Rhode  Island  State  Police  detectives who  assisted  Joost  in          converting  counterfeit  casino tokens  into  cash.   During  the          course of their relationship with Joost, the detectives presented          various  schemes  which  tested Joost's  criminal  knowledge  and          explored his illicit proclivities.  In particular,  we noted that          the final criminal plan was presented by the detectives to Joost.          They devised a  scheme to  rob a nightclub  in Massachusetts  and          initiated discussions  about Joost's obtaining a  firearm for the                                         -13-          job.  We  noted then  that the detectives  mentioned the  firearm          several  times  and  Joost  only  provided  the  weapon  after  a          significant period of time.  Given Joost's practice of "inventing          escapades,  finding holes in  them, suggesting exploratory trips,          and inventing  excuses for not  producing a  gun," id. at  13, we                                                             ___          held that Joost had produced sufficient evidence of inducement to          merit a jury instruction on entrapment.   We accordingly reversed          the conviction and remanded the case for a new trial.                    The  facts  underlying  our decision  in  Joost  differ                                                              _____          significantly from those presented by this appeal.  In this case,          Vega has presented no  evidence of a practice similar  to Joost's          of  making delays or creating obstacles  to execution of criminal          transactions proposed by government agents.  To the contrary, the          undisputed evidence  demonstrates that Vega responded to Mersky's          initial  request for  narcotics and  firearms within an  hour and          that,  for each  subsequent transaction,  Vega contacted  Mersky,          thus  initiating  the  illegal   conduct  himself.    Given  this          evidence, our decision in Joost is no help to this defendant.                                    _____                    As previously indicated, because  we find that Vega has          not presented  any "hard"  evidence of government  inducement, we          need  not  reach the  question of  his  alleged lack  of criminal          predisposition.  It  should suffice to recall the Supreme Court's          guidance  in Jacobson v. United States, 503 U.S. 540 (1992), that                       ________    _____________          in the "typical  case or  in a more  elaborate 'sting'  operation          involving  government-sponsored  fencing where  the  defendant is          simply provided  with  the opportunity  to  commit a  crime,  the                                         -14-          entrapment defense is of little use because the ready  commission                                                      _____________________          of   the  criminal   act  amply   demonstrates  the   defendant's          _________________________________________________________________          predisposition."   Id. at 549-50  (emphasis supplied).   In  this          ______________     ___          appeal, we note,  nevertheless, that Vega's  conduct on July  28,          1994  when he supplied Mersky  with narcotics within  one hour of          their  first encounter  is as  "ready commission of  the criminal          act" as the Jacobson Court might have imagined and his subsequent                      ________          conduct "amply demonstrates" his predisposition.                    For the foregoing reasons, the judgment of the district          court is affirmed.                   affirmed                                         -15-
