USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1247



                          UNITED STATES,



                            Appellee,



                                v.



                           RAMON PENA,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael  A. Ponsor, U.S. District Judge]







                              Before



                    Boudin, Stahl, and Lipez

                        Circuit Judges.

                                

                                

                                

                                

     Charles W. Groce, III for appellant.

     Kevin O'Regan, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.











November 16, 1999







                                

                                



  STAHL, Circuit Judge.  After a five-day jury trial,

defendant-appellant Ramon Pena was found guilty of having violated

21 U.S.C.  841(a), which makes it unlawful "knowingly or

intentionally . . . [to] manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a

controlled substance."  Pena challenges (1) the district court's

failure to instruct the jury on the defense of entrapment, and (2)

the court's denial of his motion for acquittal as a matter of law

based on the entrapment defense.  We reject both arguments, and

therefore affirm.

                               I.

               Factual and Procedural Background

  Pena, a native of the Dominican Republic, emigrated to

Puerto Rico in 1985, leaving behind a wife and five children.  In

1989, he moved to New York City, and in 1992, he relocated to

Springfield, Massachusetts.

  Upon arriving in Springfield, Pena began to work at a

convenience store.  During this time, he sent funds to support his

family in the Dominican Republic.  After about eight months, Pena

was injured in an automobile accident which left him unable to

work.  He soon began to use marijuana and to traffic in controlled

substances.  

  In July, 1995, Pena pleaded guilty to various drug-

related state offenses, as well as two counts of illegal possession

of a firearm.  He served two years in prison in Ludlow,

Massachusetts.  Pena's I-551 Permanent Resident Card (commonly

called a "green card") and all of his possessions were seized upon

arrest.

  After his release from prison in July 1997, Pena moved in

with his nephew in Springfield -- an apparent drug dealer -- and

began to search for a job.  According to Pena, because he was

unable to reclaim his green card upon release, he was limited to

menial employment.  Pena ultimately found work as a welder, earning

approximately $150.00 per week.  He sent about $100.00 to his wife

and children in the Dominican Republic each week after he had

attempted, unsuccessfully, to bring them to the United States in

order to alleviate their financial difficulties.

  Because Pena's claim of entitlement to a jury instruction

on entrapment requires us to view the evidence in the light most

favorable to the defendant, see, e.g., United States v. Gamache,

156 F.3d 1, 9 (1st Cir. 1998) -- and because, as described below,

our resolution of that claim renders further inquiry unnecessary --

the following account of the events leading to Pena's conviction is

taken entirely from Pena's own testimony.  

  During the summer of 1997, while walking to work, Pena

encountered Julia Cruz, who lived on the corner of his street. 

Unbeknownst to Pena, Cruz was a confidential government informant. 

During their first meeting, Cruz never broached the subjects of

drugs or drug sales.  Asked at trial whether he told Cruz anything

about himself at that point, Pena testified that "[a]ll I just told

her was that I was looking for a [better] job and that I needed my

green card, that I hadn't gotten it back from the police and that

I was looking for a job.  I needed it because I needed to help my

family because I had been in jail . . . two years."  

  The next time the two met, Cruz asked Pena into her

house, where she told him that she was hoping to "sell drugs for a

Dominican" and that "she wanted to get drugs [to] sell."  Pena

"told her that [he] wasn't involved in that, that [he] wasn't going

to do that," and that he "had been in jail . . . [and as a result]

was going to do something else [for a living]."

  Cruz and Pena continued to exchange pleasantries as Pena

walked to work each day.  Finally, Cruz again invited Pena into her

home.  There, she "told [Pena] she wanted [him] to help her," and

asked whether he had "some friends out there who sell drugs[.]" 

Pena told her that he "had a friend [who worked with drugs] but

[again said] that [he] wasn't . . . going to do that anymore." 

Nonetheless, Pena did contact Omar Almanso, a friend from prison

who, after his release, had resumed his commerce in illegal drugs. 

Almanso refused to deal with Cruz.  Cruz then suggested to Pena

that they could both make money if Pena would help her sell drugs

instead.  Pena testified that Cruz did not threaten him in any way.

  Pena agreed to help her.  When asked to explain his

decision, Pena testified at trial that "[e]ach time I called [my

family] I wouldn't be able to help my children.  I didn't have any

work to help them buy their books, to buy what they needed, and so

they had to use borrowed books for school."   

  Two weeks later, Cruz hailed Pena as he walked past her

home.  She told him that she needed to speak with him about

something "urgent."  Cruz told Pena "she had a customer for [him]

who had been a customer of hers before, and that [Pena and Cruz]

could sell to him and that [Pena] should go and that [they] would

both earn something from it."  In fact, Cruz's "buyer" was Agent

John Jusino of the Chicopee, Massachusetts Police Department. Pena

went to Almanso, who sold him one hundred (100) bags of heroin for

$500.00.  Pena and Cruz agreed to resell the heroin for $650.00. 

This price included a $100.00 profit for Pena and a $50.00 profit

for Cruz.

  On October 6, 1997, Cruz called Pena to tell him that her

"buyer" would meet them the next day and that Pena should come to

her house so that the two could go together to make the sale.  On

October 7, Pena walked to Cruz's house, and the two then drove to

meet Jusino.  During their meeting, Jusino told Pena that in

addition to heroin, he was also interested in buying cocaine.  Pena

replied that he had a friend from whom he could obtain cocaine. 

The two executed the sale.  Pena kept his $100.00 profit and gave

$50.00 to Julia.

  Following the initial meeting with Jusino, Pena obtained

a beeper to facilitate subsequent sales.  Pena and Jusino met five

more times, during which the former sold the latter heroin and, on

one occasion, crack cocaine.  Pena and Cruz divided the proceeds of

all six sales.  Almanso supplied Pena with almost all of the drugs

Pena sold, but on one occasion, Pena obtained heroin from the

nephew with whom he was living.

  During his meetings with Jusino, Pena spoke knowledgeably

about the various drugs his supplier offered.  He told Jusino that

he could obtain heroin, cocaine, and crack cocaine.  Asked at trial

how he knew about these drugs, Pena replied that Almanso "had all

of those and thought that [Pena] might need to sell [them] to [his]

customers."  On one occasion, when Jusino questioned the quality

of the heroin, Pena admits that he replied, "No, no, no, this is

good.  My bosses can't handle all the orders. . . .  This is good

and guaranteed, you're going to call again."

  During their sixth and final meeting, Jusino arrested

Pena.  Pena was tried and convicted on five counts of having sold

controlled substances in violation of 21 U.S.C.  841.  This

appeal followed.                              II.

                           Discussion

  Pena argues first that he was entitled to acquittal, as

a matter of law, based upon the entrapment defense, and second that

even if he was not so entitled, the district court erred in

refusing to instruct the jury on that defense. 

  Both of Pena's claims hinge on the particular elements of

the entrapment defense.  "[A] valid entrapment defense has two

related elements: government inducement of the crime, and a lack of

predisposition on the part of the defendant to engage in the

criminal conduct." Mathews v. United States, 485 U.S. 58, 63

(1988); see also United States v. Acosta, 67 F.3d 334, 337 (1st

Cir. 1995) ("The legal tests for entrapment are well established. 

What is required is (1) that the government induce the offense and

(2) that the defendant not be predisposed to commit it."); United

States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994); United States

v. Pratt, 913 F.2d 982, 988 (1st Cir. 1990).  Even if Pena's

testimony were assumed to be entirely truthful, he has failed to

state facts sufficient to satisfy the "inducement" prong.  We

therefore affirm the district court's rulings.

A.  Pena's Entitlement to an Entrapment Instruction

  Before discussing the merits of Pena's claim, we first

address the legal standards involved.  In evaluating a district

court's refusal to instruct the jury as to the entrapment defense,

the question we must ask is whether the defendant has put forth

evidence which, if viewed in the light most favorable to the

defense, could prompt a reasonable juror to find that both prongs

of the entrapment test have been met.  See, e.g., Gamache, 156 F.3d

at 9 (concluding that a defendant is "entitled to an instruction on

his theory of defense so long as the theory is a valid one and

there is evidence in the record to support it"); United States v.

Hernandez, 995 F.2d 307, 313 (1st Cir. 1993) (holding that in order

to merit an entrapment instruction, a defendant must "produce[]

some evidence -- on both elements of the entrapment defense --

sufficient to raise a reasonable doubt as to whether he was"

entrapped); United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir.

1988) (requiring "hard evidence" supporting both prongs).  The

initial burden of producing evidence sufficient to establish the

two entrapment prongs falls on the defendant.  "If an accused

suggests that entrapment belongs in the case, it seems not unfair

to expect him to point to a modicum of evidence supportive of his

suggestion.  The alternative -- that the prosecution be forced to

disprove entrapment in every case -- seems plainly unacceptable." 

Rodriguez, 858 F.2d at 813-14; see also United States v. Coady, 809

F.2d 119, 121 (1st Cir. 1987); Kadis v. United States, 484 F.2d

370, 374 (1967).  The issue, then, turns on the sufficiency of the

evidence put forth by the defense.  See Rodriguez, 858 F.2d at 814

("[T]he accused's burden is measured by the . . . sufficiency-of-

the-evidence yardstick."). 

  Although the requisites for entitlement to an entrapment

instruction are far from taxing, a defendant's threshold burden

cannot be met by conclusory assertions alone; only "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" will suffice.  Rodriguez, 858 F.2d 814

(emphasis added); see also United States v. Gifford, 17 F.3d at 467

(emphasizing the defendant's "'entry-level burden' of showing that

'the record, viewed most charitably to the proponent of the

instruction, furnishes an arguable basis' for an assertion of the

defense." (quoting Rodriguez, 858 F.2d 809, 812-13)).  The evidence

need not be "'so substantial to require, if uncontroverted, a

directed verdict of acquittal [but] it must be more than a mere

scintilla.'"  Pratt, 913 F.2d at 988 (quoting Kadis, 373 F.2d at

374); see also Gifford, 17 F.3d at 467; Rodriguez, 858 F.2d at 814. 

Where the facts, viewed in the light most favorable to the

defendant, fail to satisfy the legal requisites for the entrapment

defense, no instruction is warranted.

  In light of these standards, we review the decision below

de novo:  "The existence or nonexistence of the required quantity

of evidence in a given case is a matter of law for the court, and

thus our review is plenary, reading the record evidence in the

light most favorable to the defense."  United States v. Young, 78

F.3d 758, 760 (1st Cir. 1996); see also Rodriguez, 858 F.2d at 814. 

1.  The Inducement Prong

  As stated above, a defendant who asserts the entrapment

defense must first prove that the government "induced" his criminal

conduct.  "[I]nducement requires something more than that a

government agent or informant suggested the crime and provided the

occasion for it.  Rather, inducement 'consists of [providing] an

"opportunity" plus something else -- typically, excessive pressure

by the government . . . or the government's taking advantage' of

the defendant in an improper way."  Acosta, 67 F.3d at 337 (quoting

United States v. Gendron, 18 F.3d 955 (1st Cir. 1994)); see also

Young, 78 F.3d at 761; Pratt, 913 F.2d at 988 ("[The] defendant

must make a showing 'that a government agent turned him from a

righteous path to an iniquitous one.'" (quoting Coady, 809 F.2d at

122)).

    It is well established that

    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.

Gendron, 18 F.3d at 961 (internal citations omitted); see also

Mathews v. United States, 486 U.S. 58, 66 (1988) ("[E]vidence that

Government agents merely afforded an opportunity or facilities for

the commission of the crime would be insufficient to warrant [an

entrapment] instruction."); Pratt, 913 F.2d at 989 ("The fact that

[a government agent] put up the pretense of being a drug dealer,

and solicited [defendant's] business, does not, without more, make

the government's involvement rise to the level of entrapment.");

Coady, 809 F.2d at 122 (finding no improper inducement where

government agent merely "created a criminal opportunity by asking

[defendant] to involve himself, and sweetened the pot with an offer

of payment").  

  In order for a sting to constitute entrapment, then, the

government must engage in some kind of coercion -- the "something

else" alluded to in Acosta.  In Gendron, we reviewed examples of

conduct that courts had considered "improper."  Inducement was

found

    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 a "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 on "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; (7) told defendant that she (the

  agent) was suicidal and in desperate need of

  money.



Gendron, 18 F.3d at 961-62 (internal citations omitted); see also

Acosta, 67 F.3d at 338 (requiring evidence of threats, "improper

appeals to sympathy, promises of extravagant reward, or . . .

relentless and extreme trickery"); Gifford, 17 F.3d at 468 (noting

that inducement involves "pleading with a defendant," "using

inherently coercive tactics," or "arm-twisting based on need,

sympathy, friendship, or the like").  

  In light of the principles governing the entrapment

defense and of these examples of governmental overreaching, we

direct our inquiry to whether Pena offered evidence sufficient to

mandate an entrapment instruction to the jury.  We conclude that he

did not.

  Pena's entrapment defense is based on the following

assertions:  Cruz befriended him, mentioning on their first meeting

that she was looking to procure drugs for resale.  Pena told her he

was not involved in such matters.  When, on a later visit, she

asked him whether she might obtain drugs from a friend of his, he

agreed to inquire.  That friend declined, but when Cruz then asked

Pena to sell narcotics as her partner, he agreed -- without any

coercion whatsoever -- and proceeded to engage in a total of six

sales before his arrest.  Asked why he assented to Cruz's offer,

Pena cited only his children's need for new, rather than borrowed,

books.  

  These facts simply could not support a finding of

improper "inducement."  Cruz and Agent Jusino did, of course,

provide Pena with an opportunity to commit the crimes for which he

was convicted.  But as we have stated, such behavior does not,

absent further coercion, constitute inducement.  Pena describes no

such coercion here.  The activities in which Cruz and Jusino

engaged fail even arguably to match the examples of misconduct

cited in Gendron.  No witness testified that either Cruz or Jusino

employed "intimidation" or "threats," that either played upon

Pena's common narcotics experiences or any other form of sentiment,

or that either told Pena they were suicidal and in desperate need

of drugs or money.  See Gendron, 18 F.3d at 961-62.  Even those

cases cited in Gendron which bear some resemblance to the facts

before us differ in critical respects.  Pena's testimony contained

no support for a finding that the government made "repeated

suggestions" that he could earn money by dealing drugs.  See

Gendron, 18 F. 3d at 961; see also Acosta, 67 F.3d at 338 (finding

that entrapment instruction would be required when government

perpetrated a "campaign of persistent [telephone] calls" in its

attempt to lure defendant into committing an offense").  In fact,

Pena testified that although he initially expressed a hesitance to

become involved in drugs, when Cruz actually suggested at a later

date that the two could make money by selling narcotics together,

he agreed without resisting.  Moreover, there is no hint that Cruz

"called [Pena] every day, 'began threatening' [him], and [was]

belligerent."  Gendron, 18 F.3d at 961 (citing United States v.

Groll, 992 F.2d 755, 759 (7th Cir. 1993)).  Individually, the

Gendron examples each evidence far more coercive government

activity than was present in this case; collectively, they

demonstrate that even as Pena states the facts, the government's

activities could not be held to constitute improper inducement.

  The facts of Pena's case fall much closer to those in

United States v. Young, 78 F.3d 758 (1st Cir. 1996).  Defendant

Young claimed he had met and become friendly with one Al Hendricks

while both were enrolled in a narcotics detoxification program. 

Hendricks insisted upon talking about drugs both during the program

and after its termination.  Hendricks ultimately told Young that he

wanted to obtain certain controlled substances, and Young agreed to

supply him.  The two agreed that they would together purchase and

resell heroin.  But unbeknownst to Young, Hendricks had become a

government informant, and the "buyer" Hendricks "found" was a DEA

agent.  Upon making the sale, Young was arrested.  See id. at 759.

  At Young's trial, the district court refused to instruct

the jury on the entrapment defense.  Young appealed.  See id. at

760.  We affirmed, finding that Young "never testified that

Hendricks used [their] friendship as leverage constituting the

'opportunity plus something else' legally required for a finding of

inducement," or that Hendricks otherwise pressured him.  Id. at

762.

  Pena's case largely mirrors Young's.  Cruz befriended

Pena, as Hendricks had befriended Young.  Cruz and Pena discussed

drugs.  Ultimately, Cruz proposed that she and Pena together sell

drugs to a buyer who was, in fact, a government agent -- just as

Hendricks had proposed to Young.  Neither Pena nor Young testified

that the informant took advantage of any bond of friendship in

encouraging the sale.  Like Young, Pena cannot claim that he was

"induced" by a government informant's actions.  We conclude here,

as we did in Young, that "[t]here was no testimony or other

evidence, let alone 'hard evidence,' of coercion or intimidation." 

Id. at 761.     

  Furthermore, we are unpersuaded by Pena's contention that

his family's financial needs transformed what would have been a

permissible government operation into illegal entrapment.  First,

it is far from clear that Pena presented sufficient evidence to

ground a belief that the government was even aware of those

financial needs.  The entirety of the testimony offered on this

matter was the following exchange between Pena and his counsel

concerning Pena's first meeting with Cruz:

    Q:  Well, did you tell her anything about

  yourself that particular . . . time?



    A:  All I just told her was that I was looking

  for a job and that I needed my green card,

  that I hadn't gotten it back from the police

  and that I was looking for a job.  I needed it

  because I needed to help my family because I

  had been in jail in Ludlow two years.

Although Pena testified more specifically at trial about his

family's financial circumstances, he never testified that he had

informed Cruz of these circumstances.  Pena's family's hardship

could not be found to contribute to an entrapment finding if the

government was not even aware of that hardship during its

undercover operation.

  Even if the government had been aware of Pena's financial

situation, however, such hardship does not have the legal effect

Pena suggests.  Pena's argument rests on his contention that he

agreed to sell drugs with Cruz only because he "didn't have any

work to help [his children] buy their books, to buy what they

needed, and so they had to use borrowed books for school."  But as

we stated in United States v. Panet-Collazo, 960 F.2d 256 (1st Cir.

1992), "[e]ntrapment does not blossom whenever a person succumbs to

his own greed or to the lure of easy money."  Id. at 259 (quoting

United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987)). 

Although one could be sympathetic to Pena if his children had been

in a dire situation, their need for new, rather than borrowed,

books is hardly sufficient to establish "inducement" where none

existed otherwise.

2.  The Predisposition Prong

  Because we find no improper inducement, we need not

determine whether Pena was predisposed to commit the crimes in

question.  The government argues that the evidence regarding

predisposition was such that the entrapment defense would fail as

a matter of law on that ground alone.  But the district court did

not appear to rely on this ground, and, in light of Pena's failure

to meet the requirements of the "inducement" prong, we need not do

so either.  Pena's inability to raise evidence sufficient to ground

a finding of improper inducement alone rendered a jury instruction

on the entrapment defense inappropriate.  

B.  Entrapment as Matter of Law

  In ascertaining whether a defendant established

entrapment as a matter of law, we review the record de novo, see

United States v. Ellis, 168 F. 3d 558, 561 (1st Cir. 1999), to

determine whether it contains "undisputed facts" demonstrating

entrapment.  Tzimopoulos v. United States, 554 F.2d 1216, 1217 (1st

Cir. 1977); see also Jacobson v. United States, 503 U.S. 540, 554

(1992).  Having found that Pena has failed to present evidence even

permitting a finding of improper inducement, we naturally decline

to find that the same evidence required such a finding.  For the

reasons described in Part II.A, supra, Pena has not established

entrapment as a matter of law.

                              III.

                           Conclusion

  Pena failed to introduce evidence sufficient to ground a

finding that he was "induced" to commit the offenses underlying his

convictions.  For this reason, the district court properly refused

to instruct the jury on the entrapment defense and properly denied

Pena's claim of entrapment as a matter of law.

  Affirmed.