USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1955
UNITED STATES,
Appellee,
v.
ALEJANDRO VEGA,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Skinner,* Senior District Judge.
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Daniel T.S. Heffernan, by appointment of the Court, with
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whom Sugarman, Rogers, Barshak & Cohen, P.C. was on brief for
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appellant.
Kevin P. McGrath, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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appellee.
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December 19, 1996
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* Of the District of Massachusetts, sitting by designation.
SKINNER, Senior District Judge. Alejandro Vega was
SKINNER, Senior District Judge.
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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
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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
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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
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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
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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.
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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
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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.
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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
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no previous disposition towards
commission of the deed.
United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987) (citing
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United States v. Fera, 616 F.2d 590, 596 (1st Cir.), cert.
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denied, 446 U.S. 969, 100 S. Ct. 2951, 64 L. Ed. 2d 830 (1980)).
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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.
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Rodr guez, 858 F.2d 809, 814 (1st Cir. 1988). Although "[s]uch
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proof may, of course, be circumstantial rather than direct," id.,
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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.
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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.
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Where either element is absent, the defense will be inapplicable.
Id. at 814-15. Accordingly, where there exists insufficient
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evidence to establish government inducement, the court need not
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reach consideration of the evidence on the accused's criminal
predisposition, and vice versa. Young, 78 F.3d at 762 & n.3.
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Determining whether the appropriate quantum of evidence exists is
"a matter of law for the court." Rodr guez, 858 F.2d at 814.
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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,
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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
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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)
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(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
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that none of the circumstances enumerated in our decision in
Gendron is present here. Moreover, the scant evidence on which
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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
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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.
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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
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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.)
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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,
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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
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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
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court's decision. The facts underlying our decision in Kadis are
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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
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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
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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,
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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
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States v. Joost, 92 F.3d 7 (1st Cir. 1996), as a factually
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analogous precedent supporting his position in this appeal.
While Joost presented us with an "unusual issue" which also
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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
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different result. Joost involved an undercover operation by two
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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
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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
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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
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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.
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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
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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
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entrapment defense is of little use because the ready commission
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of the criminal act amply demonstrates the defendant's
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predisposition." Id. at 549-50 (emphasis supplied). In this
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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
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conduct "amply demonstrates" his predisposition.
For the foregoing reasons, the judgment of the district
court is affirmed.
affirmed
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