United States v. Sarit-Rosario

USCA1 Opinion









February 13, 1996 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]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 _________


2












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.

3












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.

4