February 13, 1996 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2239
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL SARIT-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Selya, Circuit Judge.
Roderick B. O'Connor on brief for appellant.
Sheldon Whitehouse, United States Attorney, and Margaret E.
Curran and Lawrence D. Gaynor, Assistant United States Attorneys,
on brief for appellee.
Per Curiam. Following a two-day trial, a jury found
Per Curiam.
defendant-appellant Rafael Sarit-Rosario (Sarit) guilty of
possessing heroin with intent to distribute in violation of 21
U.S.C. 841(a)(1) & (b)(1)(C). The district court imposed a
thirty-month incarcerative sentence. Sarit appeals. Discerning
no substantial question of law or fact, we summarily affirm. See
1st Cir. R. 27.1.
Sarit's brief purports to advance four arguments, but
the first two are merely variations on the same theme.
Consequently, there are three issues presented on appeal. Two
are meritless, and the third on which we make no qualitative
judgment is not properly before us.
1. At trial, Sarit pinned his hopes on an entrapment
defense. Despite neglecting to move for judgment of acquittal at
the close of all the evidence, Fed. R. Crim. P. 29, he now argues
that the government failed to prove beyond a reasonable doubt
that it had not entrapped him. He is wrong.
Once an entrapment defense is properly in play, the
government's proof must be sufficient to negate the claim that
(a) the government improperly induced the defendant to commit the
offense, and (b) the defendant lacked a predisposition to commit
it. See United States v. Gifford, 17 F.3d 462, 468 (1st Cir.
1994); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.
1988). "[T]he defense fails if the jury is persuaded beyond
reasonable doubt that either [element] is lacking in a particular
case." Rodriguez, 858 F.2d at 815. The mere fact that the
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government afforded the defendant an opportunity to commit the
crime does not prove entrapment. See United States v. Coady, 809
F.2d 119, 122 (1st Cir. 1987).
On a sufficiency challenge, we must take the record,
and all reasonable inferences therefrom, in the light most
favorable to the government and we must resolve all credibility
conflicts in the manner most compatible with the verdict. See
United States v. Valle, F.3d , (1st Cir. 1995) [No.
95-1832, slip op. at 13]; Gifford, 17 F.3d at 467. Applying this
standard, appellant's claim collapses. If the jury believed the
version of the transaction to which the prosecution's key
witness, Miguel Morel, testified, there was no entrapment.1
2. Sarit next challenges the district court's jury
instructions anent entrapment. This claim, too, is procedurally
defaulted. Having failed contemporaneously to object to the
instructions, he can prevail only upon a showing of plain error.
See United States v. Weston, 960 F.2d 212, 216 (1st Cir. 1992);
see also Fed. R. Crim. P. 30, 52(b).
Even apart from this obvious procedural default, we see
no error. On appeal, Sarit asserts that the instructions did not
apprise the jury that, in order to convict, it must find that he
intended to commit the crimes charged prior to any contact he may
have had with government agents. This assertion misstates the
law. Taking the charge as a whole, see Weston, 960 F.2d at 216,
1We note in passing that Morel's testimony was corroborated
in important particulars by other evidence in the record.
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we believe that the instructions lay out and explicate the
elements of the entrapment defense with the requisite clarity and
completeness. See, e.g., Gifford, 17 F.3d at 468; Rodriguez, 858
F.2d at 812. There was no error.
3. Finally, Sarit asseverates that his trial counsel
provided him with constitutionally deficient representation in
derogation of his Sixth Amendment rights. This claim is raised
for the first time on appeal. We decline to entertain it.
Absent exceptional circumstances (most assuredly not present
here), fact-specific ineffective assistance claims not seasonably
presented in the trial court cannot be broached on direct appeal,
but must be pursued collaterally by recourse to 28 U.S.C. 2255.
See, e.g., United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.
1993) (collecting cases), cert. denied, 114 S. Ct. 1839 (1994).
Hence, we dismiss this claim without prejudice to Sarit's right
to pursue it collaterally.2
We need go no further. For the reasons stated, the
judgment below is summarily
Affirmed.
Affirmed.
2We do not imply that this claim has any force. That issue
is not before us.
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