United States v. Montoya , 844 F.3d 63 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2089
UNITED STATES OF AMERICA,
Appellee,
v.
LUZANDER MONTOYA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Burroughs,* District Judge.
Andrew Levchuk, with whom Bulkley, Richardson and Gelinas,
LLP was on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
December 19, 2016
_________________
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. When a person is caught red-
handed in the commission of a crime, assiduous defense counsel
often is tempted to consider an entrapment defense. In the case
before us, the defendant followed this course — but things did not
go well for him. Among his other plaints, the defendant insists
that the district court forced him to show his hand prematurely.
And to make a bad situation worse, the court — at the conclusion
of all the evidence — ruled that the defendant had not carried his
entry-level burden of producing sufficient evidence to send the
entrapment defense to the jury.
Following an adverse jury verdict and the imposition of
sentence, the defendant now appeals. Ably represented, he advances
several claims of error. After careful consideration, we affirm.
I. BACKGROUND
We start with an overview of the case, reserving
pertinent details for our ensuing discussion of specific issues.
On three occasions in the summer and fall of 2012,
defendant-appellant Luzander Montoya sold heroin to a person
surreptitiously cooperating with the federal government. A
federal grand jury subsequently returned an indictment charging
the defendant with three counts of possessing heroin with intent
to distribute. See 21 U.S.C. § 841(a)(1). After a five-day trial,
a jury found the defendant guilty on all three counts. The
district court imposed a 132-month term of immurement and denied
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the defendant's motion for a new trial. This timely appeal
followed.
II. DISCUSSION
We subdivide our discussion of the issues into four
segments, corresponding to the defendant's asseverational array.
A. The Entrapment Defense.
The defendant's principal claim is that the district
court erred in refusing to instruct the jury on entrapment.
Because the court grounded this refusal in what it perceived to be
the insufficiency of the relevant evidence, we review its ruling
de novo, examining the record in the light most favorable to the
defendant. See United States v. Shinderman, 515 F.3d 5, 13 (1st
Cir. 2008).
A defendant must make a two-part threshold showing in
order to put an entrapment defense before the jury. First, he
must adduce some evidence "that the government induced the
commission of the charged crime." Id. at 14. Second, he must
adduce some evidence that he "lacked a predisposition to engage in
[that crime]." Id. In short, the defendant has an entry-level
burden of production, which requires him to furnish "'some hard
evidence' that 'governmental actors induced [him] to perform a
criminal act that he was not predisposed to commit.'" Id.(alteration in original) (quoting United States v. Rodriguez, 858
F.2d 809, 814 (1st Cir. 1988)).
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If — and only if — the defendant makes this required
"prima facie showing," id., the issue of entrapment is teed up to
go to the jury. See United States v. Ramos-Paulino, 488 F.3d 459,
462 (1st Cir. 2007); United States v. Coady, 809 F.2d 119, 122
(1st Cir. 1987). Once that prima facie showing has satisfied the
defendant's entry-level burden of production, the government must
shoulder the burden of proving beyond a reasonable doubt that
entrapment did not occur. See Coady, 809 F.2d at 122.
Against this backdrop, we turn first to the defendant's
claim that he made a prima facie showing of improper inducement.
On its face, this claim does not look promising: while the
cooperating witness (the CW) approached the defendant seeking to
buy heroin, the law is settled that merely showing that the
government presented a person with an opportunity to commit a crime
is not enough to show improper inducement. See United States v.
Guevara, 706 F.3d 38, 46 (1st Cir. 2013); see also United States
v. Díaz-Maldonado, 727 F.3d 130, 139 (1st Cir. 2013)
(differentiating between "government inducement" and "improper
government inducement"). Beyond showing that the government
afforded him the opportunity to commit the crime, the defendant
must adduce evidence that the government engaged in some kind of
"overreaching conduct." Díaz-Maldonado, 727 F.3d at 138. Such
conduct might include, for example, intimidation, threats,
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relentless insistence, or excessive pressure to participate in a
criminal scheme. See id. at 137.
To lay the groundwork for a finding that the government
did more than create an opportunity for the commission of a crime,
a defendant may identify "plus" factors — factors that suffice to
transform run-of-the-mill stage-setting into improper government
inducement. See Guevara, 706 F.3d at 46; United States v. Gendron,
18 F.3d 955, 961 (1st Cir. 1994). The defendant strives to
identify several such factors. To begin, he notes that he and the
CW were friends and suggests that the government played upon this
friendship to lure him into wrongdoing that he otherwise would
have eschewed. Next, he suggests that the CW's references to his
(the CW's) heroin addiction prompted the defendant to make the
sales out of sympathy. Neither of these suggestions qualifies as
a "plus" factor.
The mere existence of friendship, in and of itself, does
not constitute improper inducement. See United States v. Young,
78 F.3d 758, 761-62 (1st Cir. 1996). Friendship becomes relevant
to this inquiry only if the defendant can show that the government
cooperator so appeals to friendship as to cause a non-predisposed
defendant to commit the crime. In other words, there must be an
"accompanying allegation of coercion, threat, or plea based upon
friendship . . . that would constitute more than mere opportunity."
Id. at 762; see United States v. González-Pérez, 778 F.3d 3, 12
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(1st Cir.), cert. denied, 135 S. Ct. 1911 (2015) (finding no prima
facie showing of improper inducement when defendant "cite[d] no
evidence indicating that [the government cooperator] solicited his
participation by appealing directly to their friendship"); Díaz-
Maldonado, 727 F.3d at 138 (similar). Here, the defendant
presented evidence indicating that he and the CW were friends; he
presented no evidence, though, indicating that the CW appealed to
this friendship to get the defendant to sell him heroin. On this
record, a jury could have found that the CW betrayed the defendant,
but not that he improperly induced the defendant into committing
the crime.
This leaves the defendant's suggestion that the CW's
heroin addiction constituted a "plus" factor. Although the CW
used his addiction as one of the reasons that he was seeking to
purchase heroin, that passing reference to addiction did not
suffice to create a "plus" factor. See Young, 78 F.3d at 761-62.
There must be some evidence that the government cooperator used
his addiction either to engender sympathy or to create a sense of
urgency, cf. Gendron, 18 F.3d at 961 (noting that improper
inducement might be found when the government took unfair advantage
of defendant's sympathy for cooperator's withdrawal symptoms), and
the defendant introduced no such evidence here. In fact, the
record contains more references to the CW's ostensible attempts to
resell the defendant's heroin than to the CW's purported addiction.
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The defendant attempts to mitigate the effect of his
lack of inducement evidence by blaming the government. To put
this argument in perspective, some additional facts are needed.
While the government was targeting the defendant in the
summer and fall of 2012, the defendant and the CW communicated in
person, over the telephone, by text, and perhaps over Facebook.
The defendant alleges that the government did not preserve complete
records of all of these communications and posits that its failure
gives rise to an inference of spoliation, which should be counted
as an additional "plus" factor.
It is undisputed that the government did not retain
complete records of the CW's telephone calls with the defendant
(even though a government agent agreed at trial that it "would
have been good" to do so). In addition, the defendant elicited
testimony from the same government agent regarding the failure to
preserve records of any messages that the defendant and the CW
might have exchanged on Facebook. The agent acknowledged that the
CW had used Facebook to communicate with other targets of the
investigation. He testified, though, that he did not know whether
the CW had ever used Facebook to communicate with the defendant
and, as a result, he did not request records from the CW's Facebook
account when building a case file. The agent added that if any
such contacts ever occurred, the records were lost when he
instructed the CW to erase his Facebook account as a safety
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precaution before the CW's planned entry into the witness
protection program.
The defendant argues that the failure to preserve any
Facebook messages and the entirety of the call logs should give
rise to an inference of spoliation and, thus, serve as an
additional "plus" factor. His argument appears to be that, had
the government retained the records, he might have found some
evidence of improper inducement. For instance, he might have been
able to use the records to identify a "little link in the chain"
that would help to get the inducement issue to the jury. The
district court disagreed, and so do we.
What transpired here cannot plausibly be regarded as a
"plus" factor. Such factors derive from affirmative evidence;
merely identifying the absence of affirmative evidence does not
create a "plus" factor. See Guevara, 706 F.3d at 46-47; Gendron,
18 F.3d at 961-62.
In all events, even if an inference of spoliation could
constitute a "plus" factor — a matter that we need not resolve —
no such inference is warranted here. An inference of spoliation
is appropriate "where there is evidence from which a reasonable
jury might conclude that evidence favorable to one side was
destroyed by the other." United States v. Laurent, 607 F.3d 895,
902 (1st Cir. 2010). However, negligent destruction of evidence
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is generally insufficient to justify a spoliation instruction;
some indication of bad faith is required. See id. at 902-03.
Even assuming that the missing call logs and Facebook
messages might have contained favorable evidence, an inference of
spoliation would still not be justified because the defendant
adduced no evidence suggesting that the government neglected to
preserve the records in bad faith. The opposite is true: the
failure to retain call logs was at most careless, and — considering
the CW's imminent entry into the witness protection program — there
was good reason for scrubbing his Facebook account. In fact, with
respect to both the call logs and the Facebook messages, the
defendant's lawyer acknowledged at trial that he did not think
that "there was any bad faith on anyone's part."1
The short of it is that the district court did not err
in holding that the defendant failed to make a prima facie showing
of inducement. Because the two requirements for a prima facie
showing of entrapment are conjunctive, that is, the defendant must
carry his entry-level burden of production as to both improper
1 The defendant argues in passing that the district court's
failure to charge the jury concerning an inference of spoliation
constituted instructional error. That argument is specious. The
defendant did not request such an instruction at trial, nor did he
object when the court did not give one. As a result, we review
this argument only for plain error. See Fed. R. Crim. P. 30(d)
(citing Fed. R. Crim. P. 52(b)); United States v. McPhail, 831
F.3d 1, 9 (1st Cir. 2016); United States v. Paniagua-Ramos, 251
F.3d 242, 245-46 (1st Cir. 2001). For reasons already alluded to,
see text supra, there was no error, plain or otherwise.
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inducement and lack of predisposition, see Shinderman, 515 F.3d at
14, no more is exigible to uphold the district court's refusal to
send the entrapment defense to the jury. In the interest of
completeness, however, we add a few words about the defendant's
failure to make a prima facie showing of lack of predisposition.
In determining predisposition or the lack of it, we
consider how the defendant "likely would have reacted to an
ordinary opportunity to commit the crime." Gendron, 18 F.3d at
962. Relatedly, we look for evidence indicating that the defendant
was an unlikely candidate to commit the crime before the government
approached him. See United States v. Joost, 92 F.3d 7, 14 (1st
Cir. 1996) (citing Jacobson v. United States, 503 U.S. 540, 550
(1992)).
The defendant asserts that "the government . . . had no
information" that he was selling drugs in July of 2012 and insists
that he was otherwise gainfully employed with no reason to engage
in the drug trade. But the evidence of the defendant's lawful
employment was dwarfed by a surfeit of evidence indicating that
the defendant had previously been convicted of at least one drug-
trafficking offense and was actively engaged in the drug trade
when the CW first approached him. This evidence includes
statements from the defendant regarding other customers,
statements regarding his drug inventory and his periodic need to
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replenish it, and statements indicating that he had a direct
pipeline with at least one supplier.
The record is likewise barren of any evidence that
pressure was needed to persuade the defendant to sell the heroin.
To the contrary, he frequently initiated contact with the CW.
Before the second sale, the defendant even offered to sell the CW
a particular brand of heroin that the defendant considered better
quality than the last. These are indicia of predisposition, not
indicia of a lack of predisposition. See Rodriguez, 858 F.2d at
815. In sum, a reasonable factfinder, assessing this evidence in
its totality, could not have found that the defendant had made a
prima facie showing of lack of predisposition. See Shinderman,
515 F.3d at 14.
That ends this aspect of the matter. We hold that the
district court did not err in refusing to charge the jury on
entrapment.
B. The Forced Disclosure Claim.
The defendant has a fallback position. He complains
that the district court "forc[ed] the defense to disclose," prior
to trial, the defendant's plan to present an entrapment defense.
Since the defendant failed to preserve this plaint below, our
review is for plain error. See Puckett v. United States, 556 U.S.
129, 134-35 (2009). Under this stringent standard, the defendant
must show "(1) that an error occurred (2) which was clear or
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obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
We start with the relevant facts. The defendant submits
that, at a pretrial hearing held in April of 2015, the district
court "compell[ed] the defense to give notice of an entrapment
defense," thereby "graft[ing] a new requirement" onto the Federal
Rules of Criminal Procedure.2 The record, though, belies this
self-serving account.
At the pretrial hearing, the prosecutor told the
district court that "the defendant has suggested that he is going
to raise an entrapment defense." The prosecutor then asked whether
the government would be allowed to discuss entrapment in its
opening statement. The court turned to defense counsel and
inquired whether he would know, prior to making his own opening
statement, if he would say anything about entrapment. Defense
counsel responded that he was not currently planning to mention
entrapment in his opening statement, but added, "If I change my
mind, I'll let the government know." In light of this reply, the
2 The Criminal Rules do require that defendants furnish
advance notice of certain specified defenses. See, e.g., Fed. R.
Crim. P. 12.1 (alibi), 12.2 (insanity), 12.3 (acting under public
authority). Entrapment is not one of these enumerated defenses.
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court directed defense counsel to "notify the government" of his
decision by the end of the week. Defense counsel did not object.
Given this sequence of events, it is surpassingly
difficult to say that the district court "forc[ed]" the defense to
disclose its theory of the case prematurely. The defendant,
through counsel, had already volunteered to let the prosecutor
know if he was going to mention entrapment in his opening
statement. What is more, the defendant had laid his cards on the
table for all to see: he had moved to dismiss the indictment on
the ground of entrapment almost a year before and had stated, in
an earlier pretrial motion, that "the government has been on notice
for the past year that [the defendant] was considering an
entrapment defense at trial."
Under these circumstances, we find no unwarranted
compulsion: the court was merely attaching a timeline to defense
counsel's offer. If there was error at all — a matter on which we
take no view — the error was not "clear or obvious." Duarte, 246
F.3d at 60. Nor was there any likelihood that, given both the
defendant's decision to press forward with an entrapment defense
and his subsequent failure to make out that entrapment defense,
the error (if one occurred) in any way "affected the defendant's
substantial rights." Id. We hold, therefore, that the district
court did not plainly err in directing defense counsel to follow
through, by a date certain, on counsel's volunteered commitment to
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advise the prosecutor about the defendant's intent to mention
entrapment in his opening statement.
C. The Delayed Disclosure of Brady Material.
Next, the defendant submits that he was prejudiced by
the government's delayed disclosure of exculpatory evidence and,
thus, is entitled to a new trial. We review the district court's
refusal to order a new trial on this basis for abuse of discretion.3
See United States v. Van Anh, 523 F.3d 43, 51 (1st Cir. 2008)
(citing United States v. Casas, 425 F.3d 23, 43 (1st Cir. 2005)).
In a criminal case, the government bears an "affirmative
duty to disclose evidence favorable to a defendant." Kyles v.
Whitley, 514 U.S. 419, 432 (1995) (citing Brady v. Maryland, 373
U.S. 83, 86 (1963)). If the government fails to disclose this so-
called Brady material in a timeous manner, the defendant may be
entitled to relief. See United States v. Flores-Rivera, 787 F.3d
1, 17-18 (1st Cir. 2015); United States v. Lemmerer, 277 F.3d 579,
587-88 (1st Cir. 2002). Everything depends on the circumstances.
A key circumstance is whether the delayed disclosure
prejudiced the defendant. See United States v. Sepulveda, 15 F.3d
1161, 1179 (1st Cir. 1993). To secure relief, the defendant must
3 The government complains that this claim of error was not
properly preserved and, therefore, engenders plain error review.
Because we find no abuse of discretion, we bypass the government's
complaint and assume, albeit without deciding, that the defendant
sufficiently preserved his claim.
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show a "reasonable probability that the outcome of his case would
have been . . . different" had the material been disclosed in a
timely manner. United States v. Delgado-Marrero, 744 F.3d 167,
199 (1st Cir. 2014).
In the case at hand, the defendant asserts that he was
prejudiced by the government's delayed disclosure of Brady
material. The facts are straightforward. On the third day of the
trial, the government disclosed to the defendant, for the first
time, its reports of its initial interviews with the CW. According
to those reports, government agents asked the CW to describe all
of the illegal activity of which he was aware. In response, the
CW identified more than thirty people with connections to gangs
and drug-trafficking in western Massachusetts — but he did not
mention the defendant. In the defendant's view, these reports are
exculpatory because the omission of his name suggests that the
defendant was not actively dealing drugs when the government
targeted him.
We assume, favorably to the defendant, that the reports
were Brady material and that the government was obligated to
produce them before trial. Even so, the defendant has failed to
show that the delayed disclosure of the reports prejudiced him:
nothing about the timing inhibited the defendant from using the
disclosed material effectively.
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We need not tarry. When all was said and done, the
defendant was able to use the reports for the very purpose that he
now says was thwarted. After the reports were produced mid-trial,
the defendant elicited testimony from the government agent that
the CW did not mention the defendant in his initial interviews.
Defense counsel reiterated this fact as part of his closing
argument. There is no reason to believe that a timely disclosure
would have enabled the defendant to use the reports differently or
to greater effect. Consequently, the delayed disclosure did not
justify granting the defendant's motion for a new trial. See
Lemmerer, 277 F.3d at 588 (holding that because "defense counsel
incorporated [late-produced documents] ably into" the defense, the
late disclosure did not violate Brady).
The defendant does not go quietly into this bleak night.
He argues that, had he received the material earlier, his attorney
could have used the reports to impeach the CW. This argument is
empty: defense counsel received the material before the CW took
the stand, and he had an unfettered opportunity to cross-examine
the CW about their contents. To cinch the matter, the jury was
fully apprised on several occasions that the CW did not name the
defendant in his initial canvass. Given this known information,
the defendant has not explained how impeachment on cross-
examination would have yielded a reasonable probability of a
different result. In view of the mass of other evidence against
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him, any hope of a different result seems farfetched. See
Sepulveda, 15 F.3d at 1179 (finding no prejudice where, "[i]n
comparison to what was already known," the delayed disclosure of
a "relatively inconsequential amount of incremental information[]
comprised small potatoes").
So, too, the defendant's vague suggestion that his
"defense theory might have had an entirely different cast" had he
received the reports earlier is wholly speculative. He has not
put any flesh on these bones; that is, he has not made the necessary
"prima facie showing of a plausible strategic option which the
delay foreclosed." Delgado-Marrero, 744 F.3d at 200 (emphasis
omitted) (quoting Lemmerer, 277 F.3d at 588).
To say more on this point would be supererogatory. We
hold that the court below did not abuse its discretion in refusing
to grant a new trial based on the delayed disclosure of Brady
material.
D. The Challenged Sentence.
The last stop on our itinerary brings us to the
defendant's claim that he should not have been sentenced as a
career offender under USSG §4B1.1. This claim engenders de novo
review. See United States v. Whindleton, 797 F.3d 105, 108 (1st
Cir. 2015), cert. dismissed, 137 S. Ct. 23 (2016), and cert.
denied, 137 S. Ct. 179 (2016).
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The sentencing guidelines call for a career offender
enhancement when, among other things, a defendant has "at least
two prior felony convictions of either a crime of violence or a
controlled substance offense." USSG §4B1.1(a). A court tasked
with determining whether a particular conviction qualifies as a
career offender predicate must employ a categorical approach,
taking into account "the elements of the statute of conviction"
and not the specifics of the defendant's conduct. Taylor v. United
States, 495 U.S. 575, 600-01 (1990).
In this instance, the defendant had a checkered past,
and his criminal record included a number of prior convictions.
Two of these convictions are relevant here. First, the defendant
has a prior state conviction for cocaine distribution. See Mass.
Gen. Laws ch. 94C, § 32E. Second, the defendant has a prior state
conviction for assault with a dangerous weapon (ADW). See Mass.
Gen. Laws ch. 265, § 15B(b).
The district court found these two offenses sufficient
to serve as predicate offenses under the career offender guideline.
The first of these is unarguably a conviction for a controlled
substance offense and, thus, a proper predicate offense under the
career offender guideline. See USSG §4B1.2(b) (defining
"controlled substance offense"). The second conviction — for
Massachusetts ADW — is less clear-cut. The district court
nonetheless found it to be a crime of violence. See id. §4B1.2(a)
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(defining "crime of violence"). The applicability of the career
offender guideline depends on the vitality of the defendant's
challenge to this finding.
Section 4B1.2(a) supplies a built-in definition for the
term "crime of violence." The definition in effect when the
defendant was sentenced described a "crime of violence" in relevant
part as a federal or state felony that "has as an element the use,
attempted use, or threatened use of physical force against the
person of another." USSG §4B1.2(a)(1) (Nov. 2014 ed.). This
subcategory of the definition, commonly known as the "force
clause," United States v. Fields, 823 F.3d 20, 33 (1st Cir. 2016),
is apposite here.4
In Whindleton, we held that a conviction for
Massachusetts ADW, categorically viewed, is a conviction for a
violent felony under the force clause of the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). See Whindleton, 797 F.3d
at 112, 116. The force clause of the career offender guideline's
"crime of violence" definition mirrors the force clause of the
ACCA's "violent felony" definition and, on that basis, we have
4A different subcategory of the definition, commonly known as
the "residual clause," Fields, 823 F.3d at 33, is irrelevant here.
For that reason, we have no occasion to address whether and to
what extent Johnson v. United States (Johnson II), 135 S. Ct. 2551,
2557 (2015), may apply either to the career offender guideline or
to sentences imposed thereunder.
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extended Whindleton's reasoning to the career offender guideline.
See Fields, 823 F.3d at 35.
The defendant invites us to reconsider Whindleton and
Fields. We decline his invitation: where, as here, "a claim runs
headlong into circuit precedent," the "law of the circuit doctrine"
requires us to respect that precedent.5 United States v. Hudson,
823 F.3d 11, 14-15 (1st Cir. 2016).
Whindleton and Fields are directly on point. They remain
good law. See, e.g., United States v. Tavares, ___ F.3d ___, ___
(1st Cir. 2016) [No. 14-2319, slip op. at 26-27]. We are therefore
duty-bound to follow these precedents. Applying them, we hold
that the defendant was lawfully sentenced as a career offender.
We add a coda. Our recent decision in Tavares does not
in any way impugn this holding. There, we considered whether a
Massachusetts conviction for assault and battery with a dangerous
weapon (ABDW) under Mass. Gen. Laws ch. 265, § 15A(b) was a crime
of violence within the meaning of the career offender guideline.
See Tavares, ___ F.3d at ___ [No. 14-2319, slip op. at 23]. We
5 To be sure, there are isthmian exceptions to the law of the
circuit doctrine. See San Juan Cable LLC v. P.R. Tel. Co., 612
F.3d 25, 33 (1st Cir. 2010). For example, the doctrine does not
apply when "the holding of a previous panel is contradicted by
controlling authority, subsequently announced (say, a decision of
the authoring court en banc, a Supreme Court opinion directly on
point, or a legislative overruling)." United States v. Rodríguez,
527 F.3d 221, 225 (1st Cir. 2008). No such exception pertains
here.
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held that Massachusetts ABDW was divisible and that a conviction
under the first section — defined in state case law as "the
intentional and unjustified use of force upon the person of
another, however slight" — would qualify as a crime of violence.
Id. at 27 (citation omitted); see also id. at 37. This holding
explicitly relied on Whindleton, so Tavares does not undermine
Whindleton but, rather, reaffirms it. See id. at 26-27.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's conviction and sentence are
Affirmed.
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