UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1036
UNITED STATES,
Appellee,
v.
CARMELO MONTA EZ,
Defendant-Appellant.
ERRATA SHEET
The opinion of this Court issued on January 28, 1997, is
amended as follows:
On Page 7, second line from bottom, delete the "s" after the
apostrophe in "Monta ez."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1036
UNITED STATES,
Appellee,
v.
CARMELO MONTA EZ,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Barbadoro,* District Judge.
David L. Martin, by Appointment of the Court, for appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief for
appellee.
January 28, 1997
* Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. A jury found Carmelo
BARBADORO, District Judge.
Monta ez guilty of distributing and conspiring to distribute
crack cocaine. Because we conclude that the district court s
entrapment instruction did not adequately apprise the jury of
Monta ez theory of defense, we vacate both convictions and
remand for a new trial.
I.
I.
The government presented evidence at trial that
Monta ez sold an undercover agent an ounce of crack cocaine
( crack ). Monta ez conceded that he distributed the crack, but
contended that he had been entrapped by Cheryl Lauber, one of the
agent s informants.1
Monta ez testified that he met Lauber while smoking
crack at a friend s house and thereafter smoked crack with her on
a regular basis. He and Lauber later lived together for a time
with Lauber s children at a friend s apartment. Several weeks
after they met, Lauber told Monta ez that she needed money and
asked him to buy her two kilos of cocaine so that she could re-
sell it at a higher price. Monta ez responded by claiming that
he did not know where to buy such a large amount of cocaine and
that he did not have enough money to buy even an ounce.
1 Not surprisingly, the government offered considerable evidence
to refute Monta ez version of the events leading to his arrest.
We describe the evidence from Monta ez perspective since the
sufficiency of the court s entrapment instruction must be judged
from this standpoint. United States v. Flores, 968 F.2d 1366,
1367 (1st Cir. 1992).
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Lauber kept insisting that Monta ez buy cocaine for her
to resell. Her persistence finally paid off after Lauber and the
children were expelled from their friend s apartment and Lauber
claimed that she would lose her children unless she could raise
enough money to buy furniture for an apartment and a car to take
the children to school. On October 21, 1994, Monta ez
reluctantly agreed to find someone to sell them an ounce of crack
the next day so that Lauber could resell it to a friend for a
profit.
The next afternoon, Lauber and the undercover agent
drove up to the apartment where Lauber s friend was living and
waited in the agent s van for the crack to arrive. The seller
eventually appeared and went into the apartment. Monta ez
emerged a short while later and delivered the crack to the
undercover agent. He was arrested two months later.
Monta ez testified at trial that he made no money from
the crack sale and that he participated only to help Lauber.
II.
II.
The district court properly instructed the jury that
the defense of entrapment has two components: improper
government inducement and lack of predisposition. See United
States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996); United States v.
Gendron, 18 F.3d 955, 961 (1st Cir.), cert. denied, 115 S. Ct.
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654 (1994). Only the court s instruction on the former element
is in dispute.2
When charging the jury on improper inducement, the
court stated:
[I]mproper inducement goes beyond providing
an ordinary opportunity to commit a crime. It
is typically excessive pressure by the
government upon the defendant or the
government taking advantage of an alternative
noncriminal type of motive. And I think it
might help you if I give you some examples of
improper inducement. These may be tactics
such as intimidation and threats against the
defendant's family, calling every day,
threatening defendants, engaging in forceful
solicitation and dogged insistence until the
defendant gives in and capitulates and
commits the crime.
Now, what I've just said are only a few of
course, a few examples that help you
understand a government overreaching of its
having acted unfairly by employing methods of
persuasion or inducement that created
substantial risk that such an offense would
be committed by a person other than those who
are ready to commit.
After deliberating for approximately forty-five minutes, the jury
sent the court a question, asking If someone is induced by a
government informant, is this considered as possible entrapment?
The court responded by repeating its previous instruction on
inducement and by stating that Cheryl Lauber was acting as an
2 A defendant is entitled to an entrapment instruction if he
produces sufficient evidence of lack of predisposition and
improper inducement to raise[ ] a reasonable doubt as to whether
he was an unwavering innocent rather than an unwavering
criminal. Joost, 92 F.3d at 12, (quoting United States v.
Hern ndez, 995 F.2d 307, 313 (1st Cir.), cert. denied, 510 U.S.
954 (1993)(citations omitted)). The government does not
challenge Monta ez right to an instruction on entrapment.
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agent of the government . . . . Both times Monta ez asked the
court to illustrate how an appeal to sympathy can serve as an
improper inducement by using several examples drawn from United
States v. Gendron, 18 F.3d at 962.3 The court s failure to use
these examples serves as the basis for Monta ez principal
argument on appeal.
III.
III.
We have repeatedly recognized that a defendant is
entitled to an instruction on his theory of defense if sufficient
evidence is produced at trial to support the defense and the
proposed instruction correctly describes the applicable law.
United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992); United
States v. Zeuli, 725 F.2d 813, 817 (1st Cir. 1984); United States
v. Flaherty, 668 F.2d 566, 581 (1st Cir. 1981). However , the
trial court need not repeat the requested instruction verbatim as
long as the charge as a whole adequately informs the jury of the
viability of the defense. United States v. DeStefano, 59 F.3d
1, 2-3 (1st Cir. 1995); United States v. Arcadipane, 41 F.3d 1, 8
3 Monta ez asked the court to include the following examples
from Gendron:
(4) play[ing] upon defendant's sympathy for
informant's common narcotics experience and
withdrawal symptoms; (5) play[ing] upon
sentiment of one former war buddy for another
to get liquor (during prohibition); . . . (7)
[telling] defendant that she (the agent) was
suicidal and in desperate need of money."
Gendron, 18 F.3d at 961-62 (citations omitted) (quotations
omitted).
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(1st Cir. 1994). Moreover, the court is not obligated to
instruct on every particular that conceivably might be of
interest to the jury. DeStefano, 59 F.3d at 3 (citations
omitted). Therefore, a trial court s failure to deliver a theory
of defense instruction will result in reversal only if (1) the
requested instruction correctly describes the applicable law; (2)
sufficient evidence is produced at trial to warrant the
instruction; (3) the charge actually delivered does not fairly
present the defense; and (4) the requested instruction was
essential to the effective presentation of the particular
defense. United States v. Passos-Paternina, 918 F.2d 979, 984
(1st Cir. 1990), cert. denied, 499 U.S. 982, and cert. denied,
501 U.S. 1209, and cert. denied, 501 U.S. 1210 (1991).
The government cannot dispute the validity of the
proposed instruction in this case as it was drawn directly from
our opinion in Gendron. See Gendron, 18 F.3d at 961; see also
United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)
(government agent s arm-twisting based on sympathy can
constitute improper inducement). Nor can the government
successfully argue that the evidence did not warrant the proposed
instruction, because a reasonable jury could have concluded from
the evidence presented at trial that Lauber improperly induced
Monta ez to distribute the crack by claiming that she could lose
her children if the sale did not go through. Accordingly, we
focus our analysis on the adequacy of the district court s
improper inducement charge and the government s claim that any
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deficiency in the charge did not seriously impair Monta ez
ability to present his defense.
The district court informed the jury that improper
inducement can result from either excessive pressure by the
government upon the defendant or the government s taking
advantage of an alternate non-criminal type of motive. The
government contends that since this is undeniably a correct
statement of law, see Gendron, 18 F.3d at 961, the court gave the
jury enough information to permit it to evaluate Monta ez claim
that Lauber entrapped him by an appeal to sympathy. We disagree.
Of course, the district court has a great deal of
latitude in formulating a charge. But taken as a whole, the
examples given were all either coercion examples or involved
abstractions ( dogged insistence ) rather far from the examples
of inducement by an undue appeal to sympathy, which the defendant
expressly requested and which were more pertinent to his defense.
By omitting any sympathy examples, the trial court may well
have left the jury with the mistaken impression that coercion is
a necessary element of entrapment and, in this case, such a
misunderstanding could well have affected the outcome.
We also reject the government s claim that the court s
failure to give the requested instruction did not seriously
undermine Monta ez ability to present his defense. Monta ez
only realistic hope of an acquittal was to leave the jury with a
reasonable doubt about whether Lauber improperly induced him to
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participate in the drug deal by appealing to his sympathy for her
alleged plight. Since the court s charge failed to otherwise
adequately inform the jury of Monta ez theory of defense, the
convictions cannot stand.
IV.
IV.
For the reasons discussed above, we vacate Monta ez
convictions and remand for a new trial.4
4 Since we have vacated the convictions, we do not address the
other arguments Monta ez raises on appeal.
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