Petition for Writ of Certiorari — Daviel Salinas-Acevedo, Petitioner v. United States
Supreme Court briefDec 8, 2017
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No. ____-________
IN THE SUPREME COURT OF THE UNITED STATES
DAVIEL SALINAS ACEVEDO,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit
___________________________________
APPENDIX
___________________________________
22
TABLE OF CONTENTS
Judgment of the First Circuit denying petition for rehearing en
banc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Opinion of the First Circuit denying petition for rehearing en banc
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Panel opinion of the First Circuit. . . . . . . . . . . . . .
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United States Court of Appeals
For the First Circuit
No. 13-2072
UNITED STATES OF AMERICA,
Appellee,
v.
DAVIEL SALINAS-ACEVEDO,
Defendant, Appellant.
Before
Howard, Chief Judge,
Torruella, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.
ORDER OF COURT
Entered: July 11, 2017
The petition for rehearing having been denied by the panel of judges who decided the case,
and the petition for rehearing en banc having been submitted to the active judges of this court and a
majority of the judges not having voted that the case be heard en banc, it is ordered that Daviel
Salinas-Acevedo's March 16, 2017 petition for rehearing en banc be denied.
By the Court:
/s/ Margaret Carter, Clerk
cc:
Hon. Carmen Consuelo Cerezo
Frances Rios de Moran, Clerk, United States District Court for the District of Puerto Rico
Ignacio Fernandez-De-Lahongrais
Daviel Salinas-Acevedo
Myriam Yvette Fernandez-Gonzalez
Mariana E. Bauza Almonte
Eric Linden Gibson
Juan Carlos Reyes-Ramos
Robert James Heberle
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United States Court of Appeals
For the First Circuit
No. 13-2072
UNITED STATES OF AMERICA,
Appellee,
v.
DAVIEL SALINAS-ACEVEDO,
Defendant, Appellant.
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
ORDER OF COURT
Entered: July 11, 2017
Daviel Salinas-Acevedo ("Salinas-Acevedo") has filed a petition for a rehearing or
rehearing en banc alleging "the panel decision conflicts with a decision . . . of the court to which
the petition is addressed." Fed. R. App. P. 35(b)(1)(A). Salinas-Acevedo asserts that the panel's
January 13, 2017 decision, affirming the district court's refusal to permit him to make an
entrapment defense, conflicts with our prior holding in United States v. Gendron, where we noted
that "[c]ourts have found a basis for sending the entrapment issue to the jury . . . where government
officials . . . used 'repeated suggestions' which succeeded only when defendant had lost his job and
needed money for his family's food and rent." 18 F.3d 955, 961 (1st Cir. 1994) (quoting United
States v. Kessee, 992 F.2d 1001, 1003 (9th Cir. 1993)). Because our January 13, 2017 decision
does not conflict with Gendron, but instead finds the facts of this case distinguishable such that an
entrapment instruction was not necessary, Salinas-Acevedo's petition for panel rehearing is denied.
In our ruling rejecting Salinas-Acevedo's argument that he was entitled to an entrapment
defense, we first assumed that Salinas-Acevedo properly preserved his entrapment arguments,
affording him the benefit of de novo review. We noted that a defendant seeking to present an
entrapment defense at trial must demonstrate (1) improper inducement and (2) that he was not
already predisposed to commit the crime. See United States v. Sánchez-Berríos, 424 F.3d 76 (1st
Cir. 2005). Salinas-Acevedo's argument relied on a derivative theory of entrapment, where a
middleman's actions can be attributable to the government if:
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(1) a government agent specifically targeted the defendant in order
to induce him to commit illegal conduct; (2) the agent acted through
the middleman after other government attempts at inducing the
defendant had failed; (3) the government agent requested,
encouraged, or instructed the middleman to employ a specified
inducement, which could be found improper, against the targeted
defendant; (4) the agent's actions led the middleman to do what the
government sought, even if the government did not use improper
means to influence the middleman; and (5) as a result of the
middleman's inducement, the targeted defendant in fact engaged in
the illegal conduct.
United States v. Luisi, 482 F.3d 43, 55 (1st Cir. 2007).
We noted that while Salinas-Acevedo met elements (1) and (2), he failed to meet his burden
with regard to element (3) -- namely, demonstrating that the government agent (Camacho)
requested, encouraged, or instructed a middleman (Rullán-Santiago or Méndez-Perez) to employ
a specified improper inducement. Although Salinas-Acevedo was presented with repeated
opportunities to engage in the illegal activity and it is undisputed that he was facing difficult
financial times, we found Camacho's specific instructions not to pressure Salinas-Acevedo, along
with other facts in this case, to be sufficient evidence that Camacho did not instruct the middlemen
to engage in improper inducement.
In denying Salinas-Acevedo's petition for rehearing, we take this moment to further clarify
our holding in this case. "Inducement requires not only giving the defendant the opportunity to
commit the crime but also a 'plus' factor of government overreaching." United States v. GonzálezPérez, 778 F.3d 3, 11 (1st Cir. 2015) (quoting United States v. Guevara, 706 F.3d 38, 46 (1st Cir.
2013)). In González-Pérez, 778 F.3d at 12, another Operation Guard Shack defendant similarly
claimed, as Salinas-Acevedo does here, that he had been targeted because of his difficult financial
situation and had been repeatedly solicited despite his initial resistance. There, we held that the
circumstances did not amount to improper government inducement because the government had
employed "no arm-twisting or undue coercive method." Id. Additionally, we held that the
defendant's circumstances in that case -- he "had various part-time jobs . . . and . . . thought that
the high payment offered by [the government agent] would help him solve his financial situation"
-- was not enough to constitute inducement. Id. Here, we hold that Salinas-Acevedo has similarly
failed to produce any evidence of government overreach or arm-twisting.
Indeed, the record indicates and the parties assert that Salinas-Acevedo was solicited, at
most, a total of three times.1 The first time took place at some point before March 9, 2010. During
a call on March 9, 2010, Rullán-Santiago informed Camacho that at the last minute SalinasAcevedo had decided not to participate in a sham drug deal. Rullán-Santiago told Camacho that
1
The dissent argues that it is "misleading" to say that there were only three solicitation requests.
The dissent would have us speculate as to an infinite number of requests. However, we rely on
the record as well as the parties' representations and decline to speculate where the record is silent.
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Salinas-Acevedo had cited his daughter as the reason he could not participate. Rullán-Santiago
also informed Camacho that in response to Salinas-Acevedo's decision not to participate, RullánSantiago had told Salinas-Acevedo "[l]ook, [sic] is all right, bro" and to "[f]orget it, cool. That's
cool."
The second time that a middleman solicited Salinas-Acevedo to take part in the sham drug
deals presumably occurred after another recorded call. In that call Camacho spoke with MéndezPerez, brought up Salinas-Acevedo, and asked Méndez-Perez what he thought of Salinas-Acevedo.
The call is somewhat confusing, but ends with Camacho asking Méndez-Perez to talk to SalinasAcevedo, and Méndez-Perez indicating that he would go to Salinas-Acevedo's home to talk to him.
Camacho specifically instructed Mendez-Perez not to pressure Salinas-Acevedo, stating that "if he
gives you a lot of crap . . . [t]his isn't compulsory, this is for those who want to and know what it
is."2
The last indication in the record of Camacho instructing a middleman to recruit SalinasAcevedo occurred sometime after March 19, 2010. During a call on that date, Camacho offers
Rullán-Santiago an opportunity to work another sham drug deal. Rullán-Santiago jumps at the
opportunity and Camacho asks him to "get that guy that you tried to find last time." RullánSantiago responded that he would see if Salinas-Acevedo was available, stating "[o]kay, let me
see if, if that dog is around here." Camacho then tells Rullán-Santiago to let him know for sure
whether Salinas-Acevedo would participate because he did not want him to "do the same shitty
thing to me like you did last week" -- when Salinas-Acevedo decided not to participate at the last
minute.
Given these facts, we find the three requests here, over approximately a ten-day period, do
not amount to improper coercion or inducement by the government. Although Salinas-Acevedo
was facing financial difficulties with the impending arrival of a second child, financial distress
alone does not render the repeated presentation of an opportunity to commit a crime improper. See
United States v. Baltas, 236 F.3d 27, 36 (1st Cir. 2001) ("Improper inducement goes beyond
providing an ordinary opportunity to commit a crime. An inducement consists of an 'opportunity'
plus something else -- typically, excessive pressure by the government upon the defendant or the
government's taking advantage of an alternative, non-criminal type of motive." (citations
omitted)). And while we noted in Gendron, 18 F.3d at 961, that repeated suggestions in light of a
defendant's financial straits may merit an entrapment instruction, the facts of this case are
distinguishable.
Unlike the defendant in Kessee, Salinas-Acevedo at no time faced any sudden change in
means and therefore did not suffer from any increased vulnerability that would make the
government's later repeated offers to participate more objectionable. See Kessee, 992 F.2d at 1004
(noting that the "repeated entreaties . . . only became successful when Kessee had lost both his
jobs" and "did not know where he would get the money for rent and food for his family").
2
As noted in our original opinion, Méndez-Perez may have never followed through on his plans
to recruit Salinas-Acevedo as indicated during this call. See United States v. Rivera-Ruperto, 846
F.3d 417, 429 n.8 (1st Cir. 2017). We, however, assume arguendo that this solicitation actually
took place although the record is silent as to what was actually asked of or said to Salinas-Acevedo.
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Moreover, the government agent here expressly instructed at least one middleman (Méndez-Perez)
not to pressure Salinas-Acevedo. And although the second middleman (Rullán-Santiago) was
never given such direct instructions, during the March 19, 2010 call when Camacho suggested that
Rullán-Santiago "get that guy that you tried to find last time" (in reference to Salinas-Acevedo),
Camacho also made clear that he simply wanted Rullán-Santiago to bring an associate to
participate in the deal -- not necessarily Salinas-Acevedo, but someone.
Indeed, Rullán-Santiago understood that if Salinas-Acevedo declined to participate and he
could not get someone else to join, they might postpone the deal. Camacho even made a specific
suggestion that Rullán-Santiago could seek out an alternative participant (if Salinas-Acevedo was
not available), such as another individual "from Maricao, I don't know, the one you had told me
about." Thus, Camacho never instructed Rullán-Santiago to employ inappropriate means to recruit
Salinas-Acevedo, but merely instructed him to provide Salinas-Acevedo with an opportunity -Salinas-Acevedo was free to decline and Camacho was only interested in Rullán-Santiago
recruiting a second corrupt officer to participate. Indeed, this lines up with the overall design of
the sting operation to "hire" corrupt law enforcement officers to provide armed security at the
staged drug deals, and then have those officers recruit others to participate in subsequent deals,
thereby unwittingly assisting the sting in ferreting out additional corrupt officers. The dissent
seems to find it important that Camacho never gave Rullán-Santiago explicit instructions not to
pressure Salinas-Acevedo (like those given to Méndez-Perez); however, the absence of such an
instruction does not establish that the government instructed Rullán-Santiago to employ a specific
improper method of inducement. And Rullán-Santiago was explicitly instructed only to recruit
another corrupt cop, be it Salinas-Acevedo or some other officer. In sum, merely providing the
opportunity to commit a crime, even if repeatedly, does not by itself rise to the level of improper
government overreach. See Baltas, 236 F.3d at 37. We find that there is no evidence of an
improper attempt to persuade Salinas-Acevedo to participate and that the government merely
presented Salinas-Acevedo with an opportunity to commit a crime.
Although we believe the dissent takes several creative liberties in its reading of the record,
drawing conclusions and inferences which are, in our view, unfounded, we briefly address a few
of its concerns.3 As mentioned by the dissent, we are well aware that Salinas-Acevedo only has
to present sufficient evidence that if believed by a rational juror would create a reasonable doubt
that he committed the crime of his own accord. And as mentioned above, such a showing requires
3
The dissent misleadingly contends that the majority makes several "concessions," which we do
not make. Our January 13, 2017 opinion does note that Salinas-Acevedo "backed out" of the first
transaction at the last minute. We still believe this to be true and supported by the record.
However, we acknowledge that the record does not provide any affirmative evidence of SalinasAcevedo's initial agreement to participate after the first request. The record indicates, however,
that Salinas-Acevedo intended to participate in the first transaction until he realized that his
daughter's daycare was closed on the Wednesday when the first transaction was scheduled and he
had no one to watch her ("[Salinas-Acevedo is] the one who takes care of [his daughter]" and on
that Wednesday when the initial transaction was scheduled, the daycare for Salinas-Acevedo's
daughter was closed -- "they had no classes. There was no school [UI] and [Salinas-Acevedo]
couldn't [participate]"). Additionally, Salinas-Acevedo informed Rullán-Santiago that he would
not participate in the first transaction the day before the transaction was scheduled.
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some evidence of improper inducement by the government. Unlike the dissent, we find that no
such evidence exists here.
While we ultimately disagree with the dissent, we note the importance of the issue before
us. On the one hand, we do not want to support a position, like the dissent's, where all a defendant
would have to show in order to be entitled to an entrapment defense is financial struggles and
repeated asks by the government. On the other hand, we also do not want to affirm a standard so
stringent that a defendant must essentially prove improper inducement beyond a reasonable doubt
in order to be afforded an entrapment jury instruction. While mindful of these competing concerns,
here, we struggle to find any evidence of improper government inducement. The mere fact that
Salinas-Acevedo had some level of financial difficulty and was asked on more than one occasion
if he wanted to participate in the sham drug deals without more is insufficient -- there must be a
"plus factor" of government overreach.4 The record provides no information regarding the
specifics of Salinas-Acevedo's financial situation beyond the fact that he was concerned about
providing for his family with the arrival of his second child. But the record does indicate that
Salinas-Acevedo was employed as a police officer. And while Salinas-Acevedo may have felt
internal pressures to participate in the drug deals for money, there is no evidence in the record of
improper attempts by the government to exploit that fact or improperly induce him to participate.
To be clear, we are not holding that repeated entreaties on any defendant, regardless of the
facts, would be permissible and insufficient to merit an entrapment defense. We merely hold that
where, as here, we have a defendant who declines to participate in illegal activity at the last minute,
but later decides to commit the offensive act without any evidence that he eventually succumbed
to governmental pressures due to changed financial means, the presentation of multiple
opportunities to commit the crime without more is insufficient to amount to improper government
4
The "plus" factors identified by the dissent appear to be an assertion that Rullán-Santiago
possessed some form of "contempt" for Salinas-Acevedo because he referred to him as a "dog"
and the dissent's insistence that there were "multiple, persistent requests by Rullán-Santiago." The
record simply does not bear these facts out. First, the inferential leap that Rullán-Santiago
possessed some sort of "contempt" or was out to get Salinas-Acevedo specifically is speculative
at best and contradicted by the record. Rullán-Santiago used foul language constantly when
referencing individuals or circumstances. For instance, in one conversation, Rullán-Santiago
referred to various individuals as "cunt," "motherfucker," "liar," and "dick." The fact that RullánSantiago, an often foul-talking individual, also referred to Salinas-Acevedo as "cabrón" or "dog"
or "cuckold" as detailed by the dissent does not demonstrate that Rullán-Santiago possessed some
overarching contempt driving him to persistently pursue Salinas-Acevedo. Second, even the
dissent concedes that the "transcripts do not reveal, however, how many times the middlemen
requested Salinas's participation." Thus, the dissent's contention that a jury could conclude that
"multiple, persistent requests by Rullán-Santiago finally broke Salinas's resistance" is unsupported
by the record -- there is no evidence beyond the three calls referenced above of requests being
made to Salinas-Acevedo. Moreover, and perhaps most importantly, even if the dissent's take on
the facts and record were true and well-supported, none of these facts demonstrate government
overreach -- the government agent (Camacho) never instructed either middleman to employ a
specific improper tactic. And merely instructing a middleman to offer Salinas-Acevedo an
opportunity to participate is insufficient.
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inducement or coercion. The dissent simply disagrees with our reading of the record. This
disagreement does not warrant rehearing.
TORRUELLA, Circuit Judge, dissenting from denial of panel rehearing. I cannot
agree with the majority's view that the present matter is merely a disagreement about how we read
the record, and thus not worthy of rehearing. I believe our disagreement is more fundamental than
that. It entails whether we recognize the legitimate role of the jury, or whether we will engage in
a usurpation of that role. Our role as presented by the record in this case is to "determine whether
the evidence is enough, 'if believed by a rational juror, to create a reasonable doubt that the
defendant committed the crime of his own accord.'" United States v. González-Pérez, 778 F.3d 3,
11 (1st Cir. 2015) (internal citations omitted). However, the majority, while paying lip service to
this role, proceeds to invert it: it reasons that because, on the record, it might be true that Salinas
was not entrapped, Salinas is therefore not allowed to argue to the jury that he was entrapped.
Thus, the majority requires Salinas to prove his defense twice: once to the court, and then once
more to the jury. In my view, this is not how things work.
The majority now recognizes that repeated requests can give rise to an entrapment defense,
but does not incorporate that understanding into its reasoning at the most crucial point. Thus, the
majority believes there is no evidence that Camacho (the government agent) instructed any of the
middlemen to use improper means, hence, the majority reasons, an entrapment defense is
inappropriate because there was no plus factor. What the majority misses is that the use of repeated
requests is itself the kind of improper inducement or plus factor that gives rise to an entrapment
defense. United States v. Gendron, 18 F.3d 961 (1st Cir. 1994) ("Some examples of improper
'inducement' may help. Courts have found a basis for sending the entrapment issue to the jury (or
finding entrapment established as a matter of law) where government officials: . . . used 'repeated
suggestions' which succeeded only when defendant had lost his job and needed money for his
family's food and rent.") (citing United States v. Kessee, 992 F.2d 1001, 1003 (9th Cir.1993)). As
I will explain below, the majority also misapplies Kessee (which found that an entrapment defense
was required, and which we cited with approval in Gendron and United States v. González-Pérez,
778 F.3d 3, 11-13 (1st Cir. 2015) (where we found that no entrapment defense was required)).
Before turning to these precedents, however, it is essential to turn to the record and the
effects it can have on a rational juror. Let me be clear, however, that I do not argue that the
disturbing aspects of the record are the improper inducement that is required for an entrapment
defense; the repeated requests are the improper inducement. However, the record underscores that
there is more than enough in this case for a rational juror to conclude that there is a reasonable
doubt that Salinas would have committed the crime of his own accord. Three aspects of the record
deserve particular attention:
1. In its January 13, 2017 decision, the majority claimed that Salinas had agreed to
participate in the drug deal after the first request, and then reneged at the last
minute. In fact, as the majority now concedes, "the record does not provide any
affirmative evidence of Salinas-Acevedo's initial agreement to participate after the
first request."
2. The majority claims that there were at most three requests. In fact, the record
supports the inference there were more than three requests.
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3. In its January 13, 2017 decision, the majority claimed that the government gave
both middlemen the instruction not to pressure Salinas. In fact, as the majority now
concedes, only Méndez-Pérez received this instruction, whereas Rullán-Santiago - who finally broke Salinas's resistance -- received no such instruction, but was told
to "get that guy" and was given a financial incentive to do so.
As the majority now concedes, there is no evidence Salinas agreed to participate in the drug
deal after the first request.5 The record reveals that Rullán-Santiago (the middleman) informed
Camacho (the government agent) that "[Salinas] sort of said it was no good, and no, no, no, no.
You know? No." As a reason for his refusal to participate in the drug deal, Salinas said "[s]orry,
it is gonna be difficult for me because of the little girl and the like." At no point in this transcript,
or at any other place in the record, does it say that Salinas had ever agreed to participate in the
drug deal -- nor does the government even claim this in its brief. Rather, the only evidence is that
Salinas repeated "no" at least six times.6
It is misleading to say, as the majority does, that there were at most three requests.7 It is
true that the record contains the transcripts of three conversations between the government agent
and the two middlemen. Those transcripts do not reveal, however, how many times the middlemen
requested Salinas's participation. Especially the second and third transcripts imply that each of the
middlemen asked Salinas multiple times to participate in the drug deal. In the second transcript,
it is Camacho (the government agent) who brings up the topic of Salinas. Méndez-Pérez (a
middleman), who was "buddies with Salinas" and who was fully aware of Salinas's financial
troubles, would go to Salinas's house. The government agent instructed this middleman that "if
[Salinas] gives you a lot of crap," then the middleman should leave Salinas alone. The government
agent did not say "any crap" or "any resistance," or something to that effect -- he said "a lot of
crap." That is, the middleman had instructions to keep making requests until he got "a lot of crap."
Thus, numerous requests likely occurred until the middleman received the requisite amount of
pushback from Salinas. In the third transcript, the government agent simply tells Rullán-Santiago
to "get that guy" -- meaning Salinas. When Rullán-Santiago asks whether he has to bring someone
to the drug deal, the agent replies "What? Of course," and then tells the middleman to "[f]ind that
5
The majority finds that the record indicates this. First, the question before us is whether a rational
juror could find for Salinas, not whether a rational juror could find against him. Suggestions in
the record that favor Salinas are therefore appropriate; suggestions that go against him are
inapposite. In any event, the suggestions the majority relies on is a reference to his daughter being
in daycare and him taking care of her made some two weeks after he declined to participate in the
first drug deal. Note also that the middleman did not believe the explanation.
6
The majority appears to emphasize that Salinas refused to participate in the transaction at the
last minute. It is unclear what the significance of this timing is for the present case -- Salinas
refused when he was approached by Rullán-Santiago, and it was thus Rullán-Santiago who chose
the timing. In any event, the record only shows that Rullán-Santiago informed Camacho on
Tuesday morning of Salinas's refusal to participate in the Wednesday transaction. The record is
silent as to when Salinas in fact refused to participate.
7
The majority claims -- without citing to the record -- that the parties agreed that there were only
three requests. The dissent has found no support for this in the record. If anything, Salinas
emphasizes the intensity with which his resistance was broken down.
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guy." That is, Rullán-Santiago will not be allowed to participate in the deal -- and thus not be
allowed to make money -- unless he succeeds in bringing someone. Rullán-Santiago, in the
meantime, had referred to Salinas as "that dog."8 Given such unambiguous instructions "to get"
Salinas, given Rullán-Santiago's financial incentive to do so, and given Rullán-Santiago's apparent
contempt for Salinas, a rational jury could conclude that multiple, persistent requests by RullánSantiago finally broke Salinas's resistance.9 Note that while Camacho had instructed MéndezPérez to leave Salinas alone if Salinas gave him "a lot of crap," Rullán-Santiago received no similar
instruction. He was never told that this deal was only for those who wanted it. He was never told
not to apply pressure. But he was told to "get that guy."
The majority here accuses the dissent of speculation. But the dissent is, in fact, fulfilling
the proper role of the court in this situation:
[i]n order to be entitled to an instruction on entrapment, the record
must show "some hard evidence" of both government inducement
and the defendant's lack of predisposition. This evidence must be
more than uncorroborated self-serving assertions. In assessing the
sufficiency of this evidence, the district court may not weigh the
evidence, make credibility determinations or resolve conflicts in the
evidence. Rather, it must determine whether the evidence is enough,
"if believed by a rational juror, to create a reasonable doubt that the
defendant committed the crime of his own accord."
González-Pérez, 778 F.3d at 11 (internal citations omitted) (emphasis added). The dissent merely
shows that Salinas has squarely met his burden of presenting enough evidence to prevail on his
entrapment defense in front of a rational jury. The majority, however, fully ignores what Salinas's
burden in fact is, and instead proceeds to do precisely what a court is prohibited from doing here:
to resolve conflicts in the evidence. Thus, the majority notes that, after Camacho told RullánSantiago to "get that guy," there was also a brief reference in the conversation to someone "from
Maricao" as a potential alternative to Salinas, and promptly concludes that Camacho merely
instructed his middleman to provide Salinas with an opportunity. Even if it were the case that this
cursory reference to an alternative target could somehow negate the clear instruction to "get that
guy," it is emphatically not the court's role to resolve this conflict in the evidence.
It is precisely the evidence that Salinas has presented that distinguishes the present case
from González-Pérez, on which the majority relies. In González-Pérez, the defendant provided
only a "bare assertion that [the confidential informant] called him several times and [the defendant]
8
In fact, Rullán-Santiago called Salinas a "cabrón." This Spanish word is far more offensive than
the English word "dog," and is more accurately translated as "cuckold."
9
The majority does not believe that Rullán-Santiago's use of foul language signifies any contempt
for Salinas, because, as the majority details, Rullán-Santiago used foul language frequently. This
only makes it more likely, however, that Rullán-Santiago's requests that Salinas participate in a
drug transaction were not polite requests -- but rather ones filled with intimating foul language -and the fact that the government agent knowingly chose exactly this middleman "to get that guy"
does not help the majority's case either.
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declined previous invitations to commit offenses . . . ." 778 F.3d at 12. Indeed, the evidence in
González-Pérez showed that the defendant was so "eager to avail himself of the opportunities to
commit the crimes that he repeatedly told [a government agent] that he was 'very grateful' and 'at
his service,' and exclaimed 'Oh wow! That's awesome, dude,' upon learning of an additional
opportunity to provide armed security." Id. at 13. In addition, González-Pérez "cite[d] no evidence
indicating that his financial situation was such that he was at a particularly vulnerable point in his
life." Id. at 12. Salinas, however, has provided hard evidence -- in the form of the transcripts of
recorded conversations -- of his several refusals to participate in the drug deal as well as of his
desperate financial situation. There is also no evidence to show that Salinas was eager to
participate in this deal -- to the contrary, he was apparently going to "jump off the balcony when
he sees [the drugs]."
The present case is not, however, distinguishable from Kessee. As the majority correctly
points out, in Kessee, the "repeated entreaties . . . only became successful when Kessee had lost
both his jobs" and "did not know where he would get the money for rent and food for his family."
Kessee, 992 F.2d at 1004. Like the defendant in Kessee, Salinas did not know how to provide for
his family now that his wife was pregnant with their second child. The majority appears to believe
that it is important that in Kessee, the defendant refused the requests to participate in a drug deal
while he was still employed, but then gave in once he had lost his jobs. That is, Kessee's resistance
ceased once his finances worsened. Salinas, however, kept resisting even though his finances were
desperate. If anything, Salinas has shown more resistance to committing a crime than Kessee had
shown, not less, and is therefore all the more deserving of an entrapment defense.
The majority also appears to suggest that the compressed time period of approximately ten
days during which the repeated requests took place works against Salinas. However, the short
intervals between the repeated requests only increase the intensity of the pressure on Salinas, and
thus only strengthen his case. Already in a desperate situation, Salinas was given little respite
from the pressure. First, Rullán-Santiago asked him to participate in the deal; Salinas refused.
Then, Méndez-Pérez came to his home; again, Salinas refused. Finally, Rullán-Santiago was out
"to get" him; Salinas finally gave in. Still, he appeared to do so reluctantly, afraid of what he was
getting himself into; in the words of Rullán-Santiago: "[Salinas] is going to jump off the balcony
when he sees [the drugs]."
This case presents the exact situation that the entrapment defense serves to protect against:
When the Government's quest for conviction leads to the
apprehension of an otherwise law-abiding citizen who, if left to his
own devices, likely would have never run afoul of the law, the courts
should intervene.
Gendron, 18 F.3d at 961 (quoting Jacobson v. United States, 503 U.S. 540, 543 (1992) and adding
emphasis). Salinas has no criminal record, nor was there even the slightest indication that he had
ever been engaged in any police corruption. Rather, he approached Rullán-Santiago to look for a
legitimate job in order to support his family. Rullán-Santiago was at that time moonlighting as the
head of security at Comp USA, and Salinas hoped to find a job as a part-time security officer at
Comp USA. He explained his dire situation to Rullán-Santiago. Rullán-Santiago informed him
‐9‐
10
Case: 13-2072
Document: 00117176055
Page: 10
Date Filed: 07/11/2017
Entry ID: 6105045
that no such jobs were available. This took place some four months before the sham drug
transaction for which Salinas is now in prison. Salinas never sought to participate in a crime, and,
if left alone by the government agent and his middlemen, likely never would have. The injustice
reaped upon Salinas by the decision of this court in foreclosing his presentation of a legitimate
claim to an entrapment defense cannot be accepted without my most fervent objection.
I dissent.
By the Court:
/s/ Margaret Carter, Clerk
cc:
Hon. Carmen Consuelo Cerezo
Frances Rios de Moran, Clerk, United States District Court for the District of Puerto Rico
Ignacio Fernandez-De-Lahongrais
Daviel Salinas-Acevedo
Myriam Yvette Fernandez-Gonzalez
Mariana E. Bauza Almonte
Eric Linden Gibson
Juan Carlos Reyes-Ramos
Robert James Heberle
‐ 10 ‐
11
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 1 of 42
United States Court of Appeals
For the First Circuit
Nos. 13-2017, 13-2047, 13-2072
UNITED STATES,
Appellee,
v.
WENDELL RIVERA-RUPERTO, a/k/a Arsenio Rivera,
MIGUEL SANTIAGO-CORDERO,
DAVIEL SALINAS-ACEVEDO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
H. Manuel Hernández for appellant Wendell Rivera-Ruperto.
Ignacio Fernández de Lahongrais for appellant Daviel SalinasAcevedo.
Camille Lizarribar-Buxó on brief for appellant Miguel
Santiago-Cordero.
Robert J. Heberle, Attorney, Public Integrity Section,
Criminal Division, U.S. Department of Justice, with whom Juan
Carlos Reyes-Ramos, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
were on brief, for appellee.
12
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 2 of 42
January 13, 2017
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 3 of 42
THOMPSON, Circuit Judge.
In this appeal, Defendant-
Appellants Wendell Rivera-Ruperto, Daviel Salinas-Acevedo, and
Miguel Santiago-Cordero challenge various aspects of their trial
and sentencing.
For Rivera-Ruperto, this was his second of two
trials, which were presided over by different district judges.
Having separately addressed Rivera-Ruperto's challenges from the
first trial in a decision simultaneously released herewith, we
address in this opinion Rivera-Ruperto's challenges, as well as
those of Salinas-Acevedo and Santiago-Cordero, as to the second
trial only.
During trial, all three defendants were convicted of
various federal drug and firearms-related crimes for participating
in drug deals that were staged as a part of the FBI sting operation
"Operation Guard Shack," about which we say more in a bit.
As a
result of the convictions, each was sentenced to multiple years of
imprisonment.
In
the
present
appeal,
Rivera-Ruperto
raises
similar challenges, which we detail momentarily, to those he raised
in his appeal of his first trial and sentencing.
As for Salinas-
Acevedo, he argues the district court erred in preventing him from
presenting an entrapment defense.
Santiago-Cordero presses a
similar argument, challenging the judge's refusal to give an
entrapment jury instruction, and also appeals the district court's
denial of his post-verdict motion for acquittal.
For the reasons stated below, we affirm.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 4 of 42
OVERVIEW
We begin with a broad overview of the facts, and later
return to the specific details of the case as they relate to the
individual defendants' arguments.
Operation Guard Shack, as we have explained in previous
decisions,1 was a large-scale investigation mounted by the FBI over
several years in order to root out police corruption throughout
Puerto Rico.
Each of the stings followed a similar pattern.
Undercover FBI informants recruited police officers to provide
armed security at drug deals staged by the FBI.
The deals took
place at FBI-monitored apartments wired with hidden cameras, and
involved undercover officers posing as sellers and buyers of sham
cocaine. In exchange for their armed security services, the police
officers were paid about $2,000 per deal.
Rivera-Ruperto, Salinas-Acevedo, and Santiago-Cordero
provided armed security at several of these Operation Guard Shack
sham drug deals between March and September of 2010.
Rivera-
Ruperto, who was not a police officer (but who was recruited
because
he
misrepresented
himself
to
the
FBI's
undercover
informant as a prison corrections officer) provided armed security
1
See, e.g., United States v. Navedo-Ramirez, 781 F.3d 563
(1st Cir. 2015); United States v. González-Pérez, 778 F.3d 3 (1st
Cir. 2015); United States v. Diaz-Castro, 752 F.3d 101 (1st Cir.
2014).
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 5 of 42
at six deals, which took place on April 9, April 14, April 27,
June 9, June 25, and September 16 of 2010.
Salinas-Acevedo and
Santiago-Cordero, who were both police officers, participated in
one deal each, on March 24, 2010, and July 8, 2010, respectively.
The government charged the three defendants with one
count each of conspiracy and attempted possession with intent to
distribute a controlled substance, as well as possession of a
firearm in relation to a drug trafficking crime.
(Various other
co-defendants were also charged, but their cases are not before
us.)
In this indictment, Rivera-Ruperto was charged for his
participation in the April 9 deal only.
For his participation in
the five later deals, Rivera-Ruperto had already been indicted
separately, tried before a different district judge, and found
guilty.
The first judge sentenced Rivera-Ruperto to 126-years and
10-months' imprisonment.
Several months after Rivera-Ruperto's first trial, he,
Salinas-Acevedo, and Santiago-Cordero were tried together in a
second proceeding, which is the subject of this appeal.
The jury
found Rivera-Ruperto guilty of all charges, and Salinas-Acevedo
and Santiago-Cordero guilty of the conspiracy and firearms counts
(it did not reach a verdict for either of them on the attempted
possession
count).
After
separate
sentencing
hearings,
the
district judge sentenced Rivera-Ruperto to 35-years imprisonment
to be served consecutively with his first sentence, resulting in
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 6 of 42
a combined prison sentence from Rivera-Ruperto's two trials that
totaled 161 years and 10 months.
Salinas-Acevedo and Santiago-
Cordero were each sentenced to 15-years and 1-month imprisonment.
The
challenges
defendants
various
aspects
timely
appealed.
of
trial
the
Rivera-Ruperto
and
sentencing,
and
Salinas-Acevedo and Santiago-Cordero of the trial only. We discuss
below each defendant in turn, beginning with Rivera-Ruperto.
DISCUSSION
I. RIVERA-RUPERTO
As we have previously noted, we issue today a companion
decision to this case affirming the district court in RiveraRuperto's first trial and sentencing.
here
are
similar
to
those
he
Rivera-Ruperto's challenges
raised
in
that
first
appeal.
Specifically, Rivera-Ruperto argues that the district court in
this second case committed reversible errors when it: (1) failed
to conduct a sua sponte inquiry to determine whether Rivera-Ruperto
had received ineffective assistance of counsel during the pleabargaining stage; (2) gave erroneous jury instructions; (3) did
not reduce his sentence on account of sentencing manipulation by
the government; and (4) sentenced him to a grossly disproportionate
sentence in violation of the Eighth Amendment.
For the reasons we
explain, each of these challenges fails in this second appeal, as
well.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 7 of 42
A.
Lafler Claim
Rivera-Ruperto reprises a Lafler challenge that he made
(and lost) in his first appeal, in which he argues that he received
ineffective
assistance
of
counsel
during
the
plea-bargaining
phase. See Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (holding
that a defendant's Sixth Amendment right to competent counsel
extends to the plea-bargaining process).
Before getting to his
arguments, we give a brief recounting of what happened below.
1.
Background
We set what is quite the complicated stage by again
reminding the reader that Rivera-Ruperto eventually stood two
trials, which were presided over by different district judges.
Before the first trial began, Rivera-Ruperto was represented by
court-appointed attorney Jose Aguayo ("Aguayo"), who remained his
lawyer throughout the plea-bargaining stage.
Aguayo attempted to negotiate a plea deal for all of
Rivera-Ruperto's charges across the six sham drug deals (though
Rivera-Ruperto had been indicted separately for the charges). When
the negotiations resulted in no plea deal, the first case proceeded
toward
trial,
this
time
with
Rivera-Ruperto
represented
by
different court-appointed counsel.
Three days before that first trial was set to begin,
Rivera-Ruperto's second attorney filed a Lafler motion, alleging
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 8 of 42
that Aguayo had provided ineffective assistance of counsel at the
plea-bargaining stage.
He argued that but for Aguayo's deficient
performance, Rivera-Ruperto would have taken a 12-year plea deal
that the government had previously offered during negotiations,
and he requested that the court order the government to re-offer
that 12-year deal.
On the morning of the day the first trial was scheduled
to begin, the presiding judge held an evidentiary hearing on the
issue.
the
After considering the testimony and documentary evidence,
judge
denied
counsel claim.
Rivera-Ruperto's
ineffective
assistance
of
For reasons that we explain in detail in our
companion decision and will not rehash here, we have already
affirmed the judge's denial of Rivera-Ruperto's Lafler claim as it
pertains to his first trial.
Some
months
after
the
first
trial
and
sentencing,
Rivera-Ruperto, represented by the same attorney, stood trial a
second
time
for
the
charged
offenses
participation in the April 9 deal only.
stemming
from
his
At no time did trial
counsel request that the second judge consider the Lafler argument
Rivera-Ruperto
had
raised
and
lost
before
the
first
judge.
Therefore, no ineffective assistance of counsel claim was raised
by counsel or ruled upon by the judge in this second case.
2.
Analysis
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 9 of 42
On
appeal,
Rivera-Ruperto
acknowledges
that
counsel
during his second trial never raised the Lafler issue, but he
argues that the trial judge should nevertheless have made a sua
sponte
inquiry
and
independent
assistance of counsel claim.
ruling
on
the
ineffective
The judge's failure to do so, he
claims, was reversible error.2
Rivera-Ruperto never raised the Lafler issue before the
second presiding judge, and we assume his claim was forfeited and
not waived.
We thus review the judge's purported failure to make
a sua sponte inquiry on the ineffective assistance of counsel claim
2
The government raises a threshold argument that, because
Rivera-Ruperto had already obtained a ruling on the Lafler issue
in the first case, he was collaterally estopped from raising an
identical issue in his second trial.
Collateral estoppel, often referred to as issue preclusion,
traditionally barred civil litigants from relitigating an issue
that had already been decided in an earlier action. But it has
also become an "established rule of federal criminal law," and "is
a part of the Fifth Amendment's guarantee against double jeopardy."
United States v. Collazo-Aponte, 216 F.3d 163, 198 (1st Cir. 2000),
vacated on other grounds by 532 U.S. 1036 (2001). As such, our
case law has permitted the use of collateral estoppel in criminal
cases -- at least insofar as it is invoked by the defendant to
prevent the government from relitigating a previously-decided
issue. See id.
The parties disagree over whether collateral estoppel may be
used here, by contrast, offensively against Rivera-Ruperto.
Indeed, we know of no case in our circuit, and the government
points us to none, in which we have used collateral estoppel to
prevent a criminal defendant from raising an issue, as the
government would have us do in this case. We need not decide this
issue today, however, and will not. As we explain, even if we
assume, favorably to Rivera-Ruperto, that he is not collaterally
estopped from raising his Lafler claim, the claim still fails.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 10 of 42
for plain error.
74
(1st
Cir.
United States v. Sánchez-Berríos, 424 F.3d 65,
2005)
("[A]
waived
issue
ordinarily
cannot
be
resurrected on appeal, whereas a forfeited issue may be reviewed
for plain error".).
Reversal under plain error review is only proper if:
(1) an error occurred; (2) it was obvious; (3) it affects the
defendant's
substantial
fundamental
to
rights;
threaten
the
reputation of the proceedings.
and
fairness,
it
is
sufficiently
integrity
or
public
United States v. Delgado-Marrero,
744 F.3d 167, 184 (1st Cir. 2014).
in meeting these requirements.
(4)
Rivera-Ruperto cannot succeed
Even assuming that he clears the
first three of the plain error review hurdles, Rivera-Ruperto
cannot clear the fourth, because he cannot show that the judge's
purported
error
was
sufficiently
fundamental
to
threaten
the
fairness, integrity or public reputation of the proceedings.
In order to meet this fourth requirement, Rivera-Ruperto
would need to show that if the judge had made a sua sponte inquiry
into his ineffective assistance of counsel claim, she would indeed
have found that Rivera-Ruperto had received ineffective assistance
at
the
plea-bargaining
appropriate relief.
stage,
and
was
therefore
entitled
to
But, for reasons we explain in great detail
in our companion decision to this case, and which we will not
belabor here, we have already determined, on de novo review, that
Rivera-Ruperto was not entitled to Lafler relief, as he cannot
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 11 of 42
meet the two-part ineffective assistance of counsel test laid out
in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Lafler,
132 S. Ct. at 1376.
Specifically, Rivera-Ruperto is unable to
show either that Aguayo's performance was defective or that, even
if defective performance were to be assumed, it prejudiced him.
Thus, any claimed error on the second judge's part in failing to
conduct a sua sponte Lafler inquiry did not threaten the fairness
or integrity of Rivera-Ruperto's proceedings, and reversal on this
ground is not proper.
B.
Alleyne Issue
We
move
on
to
Rivera-Ruperto's
appeal
of
the
jury
instructions at his second trial, the only one of Rivera-Ruperto's
claimed errors that we have not also addressed in our companion
decision.
Rivera-Ruperto
challenges
the
jury
instructions
regarding the firearms charges only, so we focus our discussion
accordingly.
1.
First, a discussion of what happened below.
Background
Before we begin, we pause to remind the reader that at
his first trial, among other offenses, Rivera-Ruperto had been
charged with and convicted of one count of possession of a firearm
in relation to a drug trafficking crime for his participation in
each of five sham drug deals (which occurred on April 14, April
27, June 9, June 25, and September 16 of 2010).
Under 18 U.S.C.
§ 924(c)(1)(A), a defendant who is convicted of possession of a
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 12 of 42
firearm in relation to a drug trafficking crime is subject to a
mandatory minimum sentence of 5-years imprisonment on the first
conviction, and then 25-years imprisonment for every subsequent
conviction, id. § 924(c)(1)(C)(i), to be served consecutively, id.
§ 924(c)(1)(D)(ii).
Accordingly, following the trial, the first
district judge sentenced Rivera-Ruperto to a total of 105 years
imprisonment for his firearms convictions (5 years for the first
§ 924(c) conviction, and 25 for each of the subsequent four
convictions).
At the second trial, Rivera-Ruperto was again tried,
among other offenses, for possession of a firearm in relation to
a drug trafficking crime, this time for his participation in the
April 9, 2010 drug deal only.
Notable for Rivera-Ruperto's
purposes, the government did not introduce at the second trial any
evidence of Rivera-Ruperto's prior § 924 convictions from his first
trial.
In addition, while the judge instructed the jury as to the
elements of the firearms offense, neither the jury instructions
nor the verdict form included prior § 924 convictions as an
"element" of the offense, or otherwise made any mention of RiveraRuperto's prior convictions.3
After deliberating, the jury found
Rivera-Ruperto guilty of all counts.
3
The verdict form, which Rivera-Ruperto did not object to,
simply stated: "We, the Jury, find defendant WENDELL RIVERA RUPERTO
___________ (GUILTY/NOT GUILTY) as charged in Count Eighteen of
the Indictment."
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 13 of 42
Prior to sentencing, Rivera-Ruperto filed a sentencing
memorandum in which he argued that -- notwithstanding his five
previous § 924 convictions from the first trial -- the judge should
impose the 5-year mandatory minimum sentence for a first-time
conviction under the firearms statute, and not the 25-year minimum
for subsequent convictions.
Rivera-Ruperto argued that the judge
could not impose the "enhanced" mandatory minimum because the jury
had not made a beyond-a-reasonable-doubt finding as to his prior
§ 924 convictions.
The judge disagreed, denying the request in a written
order prior to sentencing.
After a hearing, the judge imposed the
25-year
for
minimum
sentence
a
subsequent
§
924
conviction.
Rivera-Ruperto now appeals.
2.
Analysis
Because the sentencing memorandum Rivera-Ruperto filed
before the district court preserved his Alleyne challenge, our
review of his argument on appeal is de novo.4
See Delgado-Marrero,
744 F.3d at 184.
In order to explain Rivera-Ruperto's argument, we must
first give a bit of background on the relevant case law.
At the
Count Eighteen of the Indictment charged Rivera-Ruperto with
"knowingly possess[ing] a firearm in furtherance of a drug
trafficking crime as defined in Title 18, United States Code,
Section 924(c)(2)," but made no mention of prior convictions under
18 U.S.C. § 924.
4
Jury instruction challenges generally must be preserved at
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 14 of 42
time of Rivera-Ruperto's second trial, the rule was (and still is,
as we explain in a moment) that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum" is an element of the offense to
be found by a jury beyond a reasonable doubt.
Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (emphasis added).
In making this
exception for prior convictions in Apprendi, the Supreme Court
deliberately left undisturbed its holding in Almendarez-Torres v.
United States, 523 U.S. 224, 226-27 (1998), which permitted the
use of prior convictions to enhance sentences without a finding by
the jury.
Between
Rivera-Ruperto's
trial
and
sentencing,
the
Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013), in which it held that the Apprendi rule applied not
only to facts that increase the mandatory maximum sentence, but
also to those that increase the mandatory minimum (thus overruling
its prior holding in Harris v. United States, 536 U.S. 545, 568
(2002), which had limited Apprendi to the former).
The Supreme
Court explicitly stated, however, that its decision would leave
untouched
Almendarez-Torres's
convictions.
"narrow
exception"
for
prior
Alleyne, 133 S. Ct. at 2160 n.1.
trial, but a defendant may preserve his challenge to an
instructional Apprendi/Alleyne error by objecting at sentencing.
See United States v. Pizarro, 772 F.3d 284, 296 (1st Cir. 2014).
The government also concedes that our review here is de novo.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 15 of 42
Despite this language in Alleyne itself, Rivera-Ruperto
argues before us that Alleyne made Almendarez-Torres inapplicable
to his case.
He seems to argue that, because Alleyne expanded the
Apprendi umbrella, bringing facts that increase mandatory minimums
under its shelter, we should, in keeping with the spirit of
Alleyne, limit Almendarez-Torres to its facts and determine that
only prior convictions that increase the prescribed maximum are
exempt from the Apprendi rule that such facts be found by a jury.
Because his prior convictions increased the prescribed minimum,
Rivera-Ruperto
argues,
they
should
be
subject
to
Alleyne's
requirement that they be found by a jury beyond a reasonable doubt.
But this is not the law.
As we have already explained,
this was not the Supreme Court's holding in Alleyne.
Moreover, we
have already rejected, in a post-Alleyne case, the argument that
prior convictions must be proven to a jury beyond a reasonable
doubt.
See United States v. Rodriguez, 759 F.3d 113, 122 (1st
Cir. 2014) (holding that the jury was not required to make a
finding
as
to
the
defendant's
Almendarez-Torres remained good law).
C.
prior
convictions
because
We therefore find no error.
Sentencing Challenges
Rivera-Ruperto's remaining two challenges concern his
sentence.
He argues, as he did in his appeal from the first trial,
that the government engaged in improper sentencing manipulation,
and that his sentence across the two trials, for a combined 161-
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 16 of 42
years and 10-months' imprisonment, violates the Eighth Amendment's
prohibition on cruel and unusual punishment.
In raising these
arguments in the present appeal, Rivera-Ruperto incorporates by
reference the sections of his brief from his appeal in the first
trial.
As we have already discussed these arguments in detail in
our companion decision, we keep our recounting of what happened
concise.
1.
Background
At the first trial, the jury found Rivera-Ruperto guilty
of five counts each (one for each of the five charged drug deals)
of conspiracy and attempted possession with intent to distribute
5 kilograms or more of a controlled substance and of possession of
a firearm in relation to a drug trafficking crime.
It also found
Rivera-Ruperto guilty of one count of possession of a firearm with
an obliterated serial number.
At sentencing, Rivera-Ruperto argued that the FBI's use
of "large" quantities of sham cocaine at each of the drug deals,
its request that he bring a firearm to each of the deals, its
decision to allow him to participate in multiple deals, and its
decision to charge him separately for each of the deals all
constituted improper sentencing manipulation because, he claimed,
the government made those choices for the sole purpose of exposing
him to an enhanced sentence.
The first district judge disagreed,
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 17 of 42
and sentenced Rivera-Ruperto to 126 years and 10 months for the
crimes.
At his second trial, Rivera-Ruperto was again found
guilty, this time of one count each of three crimes (for the
remaining
April
9
drug
deal
only):
conspiracy
and
attempted
possession with intent to distribute 5 kilograms or more of a
controlled substance, and possession of a firearm in relation to
a drug trafficking crime.
After
Ruperto's
a
sentencing
counsel
did
not
hearing,
raise
a
during
which
sentencing
Rivera-
manipulation
objection, the second district judge sentenced Rivera-Ruperto to
the statutory minimum of 10-years imprisonment for the conspiracy
and
attempt
counts
and
the
statutory
imprisonment for the firearms count.
minimum
of
25-years
Rivera-Ruperto was thus
sentenced to a total of 35-years imprisonment, to be served
consecutively to his 126-year and 10-month sentence from the first
trial.
2.
Sentencing Manipulation
Because
Rivera-Ruperto
did
not
raise
a
sentencing
manipulation challenge before the second district judge, we review
for plain error.5
See Sánchez-Berríos, 424 F.3d 65 at 78.
5
Rivera-Ruperto did raise his sentencing manipulation
argument during his first sentencing hearing before the first
district judge, and it would therefore be reasonable to treat the
sentencing manipulation argument as altogether waived as to his
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 18 of 42
Rivera-Ruperto argues that the government engaged in
sentencing manipulation by using unnecessarily high quantities of
sham drugs during the deals, requiring Rivera-Ruperto to bring a
firearm with him to each of the deals, and then allowing him to
participate in a "seemingly endless" number of those deals.
We
need not tarry in our consideration of Rivera-Ruperto's sentencing
manipulation argument here.
in
detail
why
manipulation
In our companion decision, we explain
Rivera-Ruperto's
argument
fails
fact-determinative
under
a
clear-error
sentencing
standard
of
review. In renewing his challenge as to this second trial, RiveraRuperto has added no new argument, choosing merely to incorporate
by reference the sections of his brief from his first appeal.
Because Rivera-Ruperto has adopted his briefing from the first
case wholesale, the only difference in our review here is that the
more rigorous plain-error standard applies.
Given that Rivera-
Ruperto's sentencing manipulation challenge failed under the less
exacting standard in the first case, it also fails here.
3.
Eighth Amendment
The same is true of Rivera-Ruperto's final challenge:
his argument that his total sentence from the two trials of 161years and 10-months' imprisonment violates the Eighth Amendment's
second sentence. The government, however, does not argue waiver
in its brief. Thus, favorably to Rivera-Ruperto, we review for
plain error.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 19 of 42
prohibition on cruel and unusual punishment.
Here, Rivera-Ruperto
again adopts by reference the Eighth Amendment section of his brief
in the first appeal, which fails for the reasons we have already
explained in our decision in that case.
For the reasons stated in
our companion opinion, Rivera-Ruperto's sentence is affirmed.
II. SALINAS-ACEVEDO
We turn now to Salinas-Acevedo's appeal.
As we noted
above, Salinas-Acevedo was indicted on charges of conspiracy to
distribute and attempted possession with the intent to distribute
more than 5 kilograms of cocaine, as well as of possession of a
firearm in furtherance of a drug crime, for his participation in
one Operation Guard Shack deal on March 24, 2010.
The jury found
Salinas-Acevedo guilty of the conspiracy and firearm counts, but
did not reach a verdict as to the attempted possession count.
Salinas-Acevedo was sentenced to a total of 15-years and 1-month
imprisonment.
Salinas-Acevedo raises just one argument on appeal.
He
argues that the district court erred in preventing him from
presenting an entrapment defense at trial.
We begin with a
discussion of what happened below.
A.
Background
1.
On
Lead-Up to the March 24 Deal
March
24,
2010,
fellow
police
officers
Salinas-
Acevedo, Alwin Camacho ("Camacho"), and Israel Rullán-Santiago
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 20 of 42
("Rullán-Santiago")6 provided armed security at an Operation Guard
Shack drug deal.
What Salinas-Acevedo did not know at the time
was that Camacho was working undercover as an FBI informant to
recruit corrupt police officers for Operation Guard Shack.
Camacho had targeted Rullán-Santiago after he heard
Rullán-Santiago bragging around the station that he knew drug
traffickers and was "basically a delinquent using up the uniform."
It was Rullán-Santiago who, in turn, recruited his friend SalinasAcevedo. Both Rullán-Santiago and Camacho were aware that SalinasAcevedo had a daughter and was expecting another child, and that
he was in a difficult financial situation.
Originally, Salinas-Acevedo was supposed to participate
in a drug transaction that had been planned for March 10, 2010.
But,
according
to
a
recorded
telephone
conversation
between
Rullán-Santiago and Camacho on the night before that deal, SalinasAcevedo, seemingly referring to his child, backed out at the last
minute, telling Rullán-Santiago, "Sorry, it's gonna be difficult
for me because of the little girl and the like."
Hearing that
Salinas-Acevedo would not make it to the deal, Camacho postponed
the scheduled transaction.
Shortly thereafter, Camacho was also recorded talking to
Carlos Méndez-Pérez ("Méndez-Pérez"), yet another police officer
6
Rullán-Santiago was one of the co-defendants in this case
below, but is not a party to this appeal.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 21 of 42
who would himself participate in Operation Guard Shack and be
charged separately in a different case.
During the conversation,
Camacho
Camacho
brought
up
Salinas-Acevedo.
asked,
"[S]ince
you're buddies with Salinas, what do you think about Salinas?"
He
went on to say, "Because, um, Rullán approached him and later he
gave me excuses that his daughter . . . ."
Camacho told Méndez-
Pérez that Rullán-Santiago had told him that Salinas-Acevedo was
"willing to do anything and he's broke."
Camacho also told Méndez-Pérez that he had directed
Rullán-Santiago not to "bring up that topic with [Salinas-Acevedo]
anymore."
But later in the conversation, Camacho told Méndez-
Perez to talk to Salinas-Acevedo and have him "come by" to see
him.
In response, Méndez-Pérez told Camacho that he would stop by
Salinas-Acevedo's house.
Camacho instructed Méndez-Pérez to find
out what days Salinas-Acevedo "ha[d] available," but also directed
Méndez-Pérez, "[I]f he gives you a lot of crap[;] . . . [t]his
isn't compulsory, this is for those who want to and know what it
is."
On
conversation
March
with
19,
2010,
in
Rullán-Santiago,
another
Camacho
recorded
directed
phone
Rullán-
Santiago to "get that guy that you tried to find last time," by
which he meant Salinas-Acevedo.
Rullán-Santiago responded, "[L]et
me see if, . . . if that dog is around here."
- 21 -
Camacho replied,
32
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 22 of 42
"Well, but let me know for sure, don't do the same shitty thing to
me like you did last week."
Three days later, Camacho, who by then presumably knew
Salinas-Acevedo had agreed to the job, called Rullán-Santiago to
"double check[]" that Rullán-Santiago and Salinas-Acevedo were
both on board for the upcoming March 24 drug deal.
In a not-
entirely-clear exchange, Camacho asked Rullán-Santiago, "You told
Salinas what it was, right, the devices?" Rullán-Santiago at first
told Camacho "Yes," but then laughed and told Camacho that SalinasAcevedo would "jump off the balcony when he sees [the drugs]."
The story ends, as we know, with the deal going down as
planned, with Rullán-Santiago and Salinas-Acevedo being arrested
and brought up on charges, and with Salinas-Acevedo standing
trial.7
2.
Lead-Up to Trial
Before trial, the government moved in limine to preclude
Salinas-Acevedo from raising an entrapment defense in his opening
statement.
The district court initially denied the motion, but
when the government filed a motion for reconsideration of the
order, the trial court ordered Salinas-Acevedo to proffer his
evidence supporting an entrapment defense.
7
Rullán-Santiago took a plea
sentenced to 19-years imprisonment.
- 22 -
deal,
and
was
eventually
33
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 23 of 42
Salinas-Acevedo proffered the following.
First, he
asserted that, at all relevant times, Camacho had been aware of
Salinas-Acevedo's difficult financial situation because SalinasAcevedo had previously asked Camacho about part-time opportunities
at CompUSA, where Camacho worked as a part-time security guard,
and Camacho had told Salinas-Acevedo that he would let him know if
any opportunities opened up.
Second, Salinas-Acevedo submitted a
transcript
conversations
of
the
recorded
between
Camacho
and
Rullán-Santiago and Méndez-Pérez, which Salinas-Acevedo argued
showed that Camacho had targeted and incited Salinas-Acevedo into
participating in the sham drug deals.
Finally,
Salinas-Acevedo
alleged
that
he
had
been
wrongly induced into committing the crime because Rullán-Santiago
had told him that the March 24 transaction was a "legitimate
business transaction" involving the sale of diamonds, and that it
was only after he had arrived at the location that it was revealed
to him that it was a drug deal.
However, at the court's subsequent
prompting, Salinas-Acevedo conceded that he did not have any
evidence
that
the
government
(through
Camacho)
had
directed
Rullán-Santiago to tell Salinas-Acevedo that it was a legitimate
transaction, or that Camacho was otherwise responsible for the
alleged misinformation.
By sealed ex parte order, the court held that this was
an "insufficient basis to allow defendant Salinas to mention to
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 24 of 42
the jury in opening statements a defense of entrapment," and
vacated its previous order denying the government's motion in
limine. Accordingly, Salinas-Acevedo was not permitted to mention
entrapment in his opening statement.
At trial, over the objections of Rivera-Ruperto and
Santiago-Cordero (our third co-defendant in this appeal, who we
will get to know better shortly), the district court declined to
give the jury an instruction on the entrapment defense.
Salinas-
Acevedo did not join in that objection to the jury instructions.
Salinas-Acevedo now appeals, arguing that the district court erred
in preventing him from raising an entrapment defense.
B.
Analysis
requested
The
government
argues
that
an
entrapment
instruction,
Salinas-Acevedo
neither
nor
his
joined
in
co-
defendants' jury instruction objection during trial, and that his
claim is therefore unpreserved and subject to plain error review.
See United States v. Guevara, 706 F.3d 38, 46 (1st Cir. 2013).
Salinas-Acevedo argues that our review is de novo, presumably on
a theory that his objection to the government's motion in limine
was sufficient to preserve his objection to being denied a jury
instruction on entrapment as well.
But even assuming, favorably
to Salinas-Acevedo, that the claim was properly preserved, the
argument still fails under de novo review.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 25 of 42
The judicially-created doctrine of entrapment exists "to
prevent 'abuse[]' of the 'processes of detection and enforcement
. . . by government officials' who might instigate an illegal 'act
on the part of persons otherwise innocent in order to lure them to
its commissions and to punish them.'"
United States v. Díaz-
Maldonado, 727 F.3d 130, 137 (1st Cir. 2013) (quoting Sorrells v.
United States, 287 U.S. 435, 448 (1932)) (alteration and omission
in original). A defendant seeking to present an entrapment defense
at trial must satisfy an "entry-level burden of production."
Sánchez-Berríos, 424 F.3d at 76.
He must produce "evidence which
fairly supports the claims" that: (1) the government agents not
only induced the crime but did so improperly, and (2) that he was
not already predisposed to commit the crime.
Id. at 76-77.
In determining whether a defendant has met this two-part
burden, a court "is to examine the evidence on the record and to
draw
those
inferences
as
can
reasonably
be
drawn
therefrom,
determining whether the proof, taken in the light most favorable
to the defense can plausibly support the theory of the defense."
United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998).
If the
defendant succeeds and the defense is introduced at trial, it
becomes the government's obligation to prove beyond a reasonable
doubt that no entrapment occurred.
We
begin
by
examining
whether
Salinas-Acevedo
has
satisfied the improper inducement prong of his two-part burden.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 26 of 42
Because Salinas-Acevedo did not deal directly with Camacho -- the
"government agent" in this case, see United States v. Luisi, 482
F.3d 43, 53 (1st Cir. 2007) (explaining that an individual hired
as a government informant constitutes a government agent for
entrapment
purposes)
--
but
middleman
(Rullán-Santiago),
was
brought
into
Salinas-Acevedo
derivative theory of entrapment.
the
deal
by
a
must
rely
on
a
Under this theory, the conduct
of a middleman is only attributable to the government where:
(1) the government agent specifically targeted the
defendant in order to induce him to commit illegal
conduct; (2) the agent acted through the middleman after
other government attempts at inducing the defendant had
failed; (3) the government agent requested, encouraged,
or instructed the middleman to employ a specified
inducement, which could be found improper, against the
targeted defendant; (4) the agent's actions led the
middleman to do what the government sought, even if the
government did not use improper means to influence the
middleman; and (5) as a result of the middleman's
inducement, the targeted defendant in fact engaged in
the illegal conduct.
Luisi, 482 F.3d at 55.
Salinas-Acevedo
requirements.
satisfies
the
first
two
of
these
The recorded conversations proffered by Salinas-
Acevedo show Camacho more than once asking Rullán-Santiago and
Méndez-Pérez about Salinas-Acevedo, and encouraging them to get
Salinas-Acevedo involved in the drug deals.
Viewing the evidence
in the light most favorable to Salinas-Acevedo, a jury could
conclude that Camacho targeted Salinas-Acevedo and used at least
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 27 of 42
Rullán-Santiago,
if
not
both
middlemen,8
to
induce
him
to
participate in the March 24 transaction.
In
order
to
meet
the
third
requirement,
however,
Salinas-Acevedo must show that the government (via its agent
Camacho)
encouraged
Rullán-Santiago
"improper" inducement.9
Id.
to
employ
a
specific
The key issue here is whether a
specified improper inducement by Rullán-Santiago (or Méndez-Pérez)
can be attributed to the government itself.
The government would
be responsible for any improper inducement by either middleman if
8
It appears Méndez-Pérez may not have attempted to recruit
Salinas-Acevedo. The video recording from the March 24 drug deal
shows Camacho asking Salinas-Acevedo if he knows anyone
"trustworthy" that he would recommend for future deals, to which
Salinas-Acevedo suggests his "buddy" Méndez-Pérez, and then
appears surprised to hear that Méndez-Pérez was "already part of
the clan." The government argues that if Méndez-Pérez had actually
induced Salinas-Acevedo into participating in the March 24 drug
deal, Salinas-Acevedo would not have been surprised to hear he was
already in on the conspiracy. Salinas-Acevedo does not challenge
this argument.
9
Salinas-Acevedo appears to raise an alternative argument in
his reply brief that he was not required to meet this third factor
at all, and that the factors laid out in Luisi, 482 F.3d at 55,
are merely factors for the district court to weigh in assessing a
defendant's derivative entrapment theory. We need not address an
argument raised for the first time in a party's reply brief. See
N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir.
2001) ("[A]bsent exceptional circumstances, an appellant cannot
raise an argument for the first time in a reply brief."). Nor
would it make any difference here because Salinas-Acevedo is
incorrect. All five Luisi factors must be met in order to warrant
an entrapment instruction based on the conduct of a middleman.
See Luisi, 482 F.3d at 55; see also United States v. NavedoRamirez, 781 F.3d 563, 570 n.1 (1st Cir. 2015) (describing the
Luisi factors as "conditions" that must be "satisfied").
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38
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 28 of 42
its agent (Camacho) had "told" or "instructed" the middleman
(Rullán-Santiago or Méndez-Pérez) to apply the inducement later
deemed improper.
See United States v. Rogers, 102 F.3d 641, 645
(1st Cir. 1996) ("Under the case law the government would be
responsible if [its agent] told [the middleman] to apply the
pressure or inducement later deemed improper, and perhaps if [the
government's
agent]
knowingly
tolerated
it,
but
not
if
[the
government's agent] were ignorant of it."); Luisi, 482 F.3d at 55.
For
example,
in
Rogers,
a
government
agent
was
introduced to a third-party middleman who engaged the defendant in
a conspiracy to purchase drugs with the intent to sell.
The
defendant argued that the middleman should be treated as an
"unwitting government agent."
disagreed,
finding
that
Rogers, 102 F.3d at 645.
there
was
insufficient
We
evidence
associating the government's agent with any improper inducement by
the middleman.
Id.
We specifically noted that even if the
middleman did act improperly, nothing in the record demonstrated
that the government agent "urged, suggested, or was even aware of"
the improper conduct referenced by the defendant.
Similarly,
here,
the
record
negates
Id.
a
finding
of
improper inducement by the government itself (via its agent,
Camacho).
On multiple occasions, Camacho told his intermediaries
not to pressure Salinas-Acevedo to participate in the drug deals.
While Camacho repeatedly asked the middlemen to check on Salinas-
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39
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 29 of 42
Acevedo's availability and willingness to participate, there is no
evidence that he urged them to apply improper pressure on SalinasAcevedo
to
specifically
join
the
enterprise.
To
the
contrary,
Camacho
directed
Méndez-Pérez
that
"if
[Salinas-Acevedo]
gives you a lot of crap[;] . . . [t]his isn't compulsory, this is
for those who want to and know what it is."
And although Camacho did direct Rullán-Santiago to get
Salinas-Acevedo ("that guy that you tried to find last time") to
participate and Rullán-Santiago responded that he would see "if
that dog is around here," Camacho never insisted that RullánSantiago
do
whatever
it
takes
to
get
Salinas-Acevedo
to
participate. Instead, Camacho's reply -- "don't do the same shitty
thing to me like you did last week" -- appears to be a warning
about adequate notice, given that Rullán-Santiago had backed out
of the first transaction at the last minute and Camacho wanted
Rullán-Santiago to let him know "for sure" -- one way or another
-- whether Salinas-Acevedo would participate.
Salinas-Acevedo
must show not only that Camacho, through his middlemen, gave him
the opportunity to commit the crime, but also a "plus" factor -an inducement amounting to some kind of "government overreach."
Guevara, 706 F.3d at 46.
Even if we were to assume that actions
of the middlemen here were improper, Salinas-Acevedo has failed to
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40
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 30 of 42
produce
sufficient
evidence
of
government
overreach
or
arm-
twisting in this case.10
Salinas-Acevedo has thus failed to meet the improper
inducement prong of his two-prong burden, and we need not proceed
to the second question of whether he was already predisposed to
commit the crime.
The district court did not err in denying
Salinas-Acevedo an opportunity to present an entrapment defense.
III. SANTIAGO-CORDERO
The
last
of
the
three
defendants
in
this
appeal,
Santiago-Cordero, participated in an Operation Guard Shack drug
deal on July 8, 2010, and was tried for one count each of conspiracy
10
We do not consider Salinas-Acevedo's originally-proffered
claim that Rullán-Santiago duped him into participating in the
March 24 deal by misrepresenting it as a legitimate business
transaction over the sale of diamonds. Salinas-Acevedo conceded
below that he had no proof that it was Camacho who directed or in
any way encouraged Rullán-Santiago to tell him this lie.
See
United States v. Gates, 709 F.3d 58, 63 (1st Cir. 2013) ("[A] party
cannot concede an issue in the district court and later, on appeal,
attempt to repudiate that concession and resurrect the issue. To
hold otherwise would be to allow a litigant to lead a trial court
down a primrose path and later, on appeal, profit from the invited
error."). Because Salinas-Acevedo has no evidence connecting the
purported misrepresentation to a government agent, it does not
factor into our derivative entrapment analysis.
Although Salinas-Acevedo was not permitted to argue that he
was lied to as part of an entrapment defense, we note that he did
have an opportunity to do so at trial as part of his argument that
he lacked the mens rea to commit the crime. The jury was thus
presented evidence of the alleged misrepresentation -- including
the phone conversation in which Rullán-Santiago told Camacho that
Salinas-Acevedo would "jump off the balcony" upon seeing the drugs
-- and had the opportunity to consider it in coming to its verdict.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 31 of 42
to
distribute
and
attempted
possession
with
the
intent
to
distribute more than 5 kilograms of cocaine, as well as possession
of a firearm in furtherance of a drug crime.
The jury found
Santiago-Cordero guilty of the conspiracy and firearm counts, but
did not reach a verdict as to the attempted possession count.
For
his crimes, Santiago-Cordero was sentenced to 15-years and 1-month
imprisonment.
Santiago-Cordero raises two issues on appeal.
like
Salinas-Acevedo,
he
appeals
the
district
court's
denying him a jury instruction on an entrapment defense.
First,
ruling
Second,
he appeals the district court's denial of his motion for acquittal.
We start again with what happened below.
A.
Background
This has, by now, become a familiar scene with a familiar
cast of characters, so we will do our best to keep our narration
short.
Camacho and Rullán-Santiago reprise the same roles here
that they played in Salinas-Acevedo's story, as confidential FBI
informant
and
unsuspecting
middleman
turned
co-defendant,
respectively.
As he had done with Salinas-Acevedo, Rullán-Santiago
(with
Camacho's
blessing)
recruited
Operation Guard Shack drug deal.
Santiago-Cordero
for
an
Camacho was apparently aware in
the lead-up to the deal that Santiago-Cordero was money-strapped,
because during the phone calls in which they discussed bringing
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42
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 32 of 42
Santiago-Cordero
on
board,
Rullán-Santiago
told
Camacho
that
Santiago-Cordero was in need of money.
On July 8, 2010, as planned, Santiago-Cordero arrived
with firearm in tow at the apartment where the sham drug deal would
take place.
Unaware that he was being surveilled by the FBI,
Santiago-Cordero provided security services at the deal, where
undercover officers posing as drug dealers exchanged sham cocaine
bricks for large amounts of cash.
After the deal was completed,
Santiago-Cordero was paid $2,000.
This was all caught on film.
Santiago-Cordero
was
arrested
shortly
thereafter,
charged, and stood trial along with Rivera-Ruperto and SalinasAcevedo.
During trial, the prosecution introduced testimony from
Camacho, as well as the video footage of the deal.
Toward
conference.
trial's
end,
the
court
held
a
jury
charge
There, counsel for Santiago-Cordero requested that
the jury be instructed on an entrapment defense, which the judge
denied.
After deliberations, the jury found Santiago-Cordero
guilty of the conspiracy and firearm counts, but did not reach a
verdict as to the attempted possession count.
About
a
week
after
trial,
Santiago-Cordero
filed
a
motion for acquittal, in which he argued that his conviction should
be vacated because the evidence had been insufficient to support
the jury's verdict on the conspiracy count.
The judge denied the
motion,
sentenced
and,
after
a
sentencing
- 32 -
hearing,
Santiago-
43
Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 33 of 42
Cordero to 15-years and 1-month imprisonment.
now
appeals
both
the
sufficiency
of
the
Santiago-Cordero
evidence
and
jury
instruction issues.
B.
Analysis
1.
Sufficiency of the Evidence
Santiago-Cordero argues, as he did in his motion for
acquittal below, that both his convictions should be overturned
because: (1) the government presented inadequate evidence at trial
to
support
a
guilty
verdict
on
the
conspiracy
charge,
and
(2) without the conspiracy conviction, there was no "drug crime"
on which his conviction for possession of a firearm in furtherance
of a drug crime could be based. Because Santiago-Cordero preserved
his sufficiency of the evidence argument, we apply de novo review.
See United States v. Adorno-Molina, 774 F.3d 116, 121 (1st Cir.
2014).
In order to return a conspiracy conviction under 21
U.S.C. § 846, the government must show that: "(1) a conspiracy
existed; (2) the defendant had knowledge of the conspiracy; and
(3) the defendant knowingly and voluntarily participated in the
conspiracy."
2013).
element,
United States v. Maryea, 704 F.3d 55, 73 (1st Cir.
Here, Santiago-Cordero takes issue with the "knowledge"
arguing
that
at
trial
the
government
presented
insufficient evidence that he knew the transaction involved the
distribution of drugs.
He contends that the video footage shows
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 34 of 42
that drugs were never explicitly discussed during the transaction,
and that he never looked inside the wrapped packages to confirm
that they, in fact, contained drugs.
He also argues that Camacho
testified at trial that he did not know what Santiago-Cordero had
been
told
about
the
transaction
by
Rullán-Santiago,
and
government never put Rullán-Santiago himself on the stand.
the
Thus,
he claims, the government's evidence was insufficient to prove
beyond a reasonable doubt that he had knowledge of the nature of
the conspiracy.
But a jury verdict will not be overturned so long as we
find that a rational factfinder could have found that the evidence
presented at trial, "together with all reasonable inferences,
viewed in the light most favorable to the government," established
each element of the offense beyond a reasonable doubt.
States v. Poulin, 631 F.3d 17, 22 (1st Cir. 2011).
United
Given this
difficult standard, defendants raising this claim are "rarely
successful," United States v. Moran, 984 F.2d 1299, 1300 (1st Cir.
1993), and Santiago-Cordero is no exception.
To sustain a conspiracy conviction under § 846, the
government "need only prove that the defendant had knowledge that
he was dealing with a controlled substance, not that he had
knowledge of the specific controlled substance."
Woods, 210 F.3d 70, 77 (1st Cir. 2000).
United States v.
Here, the government
introduced at trial video footage of Santiago-Cordero, who the
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 35 of 42
jury knew was a trained police officer, showing up for the July 8
deal armed with his firearm and ready to provide security.
Santiago-Cordero
frisked
the
undercover
buyer
upon
arrival at the deal site, and then watched as a substance packaged
in bricks and marked with logos (in the same manner as cocaine is
usually packaged) was exchanged for cash.
See United States v.
Azubike, 564 F.3d 59, 65 (1st Cir. 2009) (explaining that where
the jury was shown evidence that "the modus operandi of the crime
was the same as that of drug transactions sadly common in this
geographic area," this "support[ed] the jury's conclusion that
defendant knew he was transporting drugs").
Santiago-Cordero was
then paid $2,000 for what amounted to less than an hour of work.
The government also presented the jury with a recorded
phone call in which Rullán-Santiago told Camacho that he had
informed Santiago-Cordero that they would be working a drug deal,
as well as footage from the July 8 deal in which Camacho asks
Santiago-Cordero,
"Rullán
already
explained
Santiago-Cordero answers in the affirmative.
it
to
you?,"
and
On this evidence, a
jury had a more than adequate basis to come to its conclusion that
Santiago-Cordero had knowledge of the nature of the conspiracy.
We thus affirm.
2.
Entrapment Defense
We turn to Santiago-Cordero's appeal of the judge's
denial of an entrapment defense instruction.
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Because he raised
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the objection below, our review is de novo.
See Azubike, 564 F.3d
at 64.
Having already mapped out the doctrine of derivative
entrapment in our previous discussion of Salinas-Acevedo's appeal,
we keep our discussion of Santiago-Cordero's entrapment argument
short.
Recall that a defendant is only entitled to an entrapment
defense if he can establish the government agents improperly
induced a crime that he was not already predisposed to commit.
Sánchez-Berríos, 424 F.3d at 76-77.
Here, the only evidence that
Santiago-Cordero has produced of improper inducement is that the
government knew he was "broke and needed money," and that the
government
knew
that
its
middleman,
Rullán-Santiago,
was
a
"delinquent" and used him anyway to recruit Salinas-Acevedo.
Awareness on the part of the government of a targeted
defendant's difficult financial situation does not, without more,
constitute improper inducement.
See, e.g., United States v.
Baltas, 236 F.3d 27, 37 (1st Cir. 2001). As for Santiago-Cordero's
suggestion that using Rullán-Santiago as a middleman despite his
shady reputation somehow constituted improper inducement, this
misses the mark, too.
As we explained above, the focus in an
improper inducement inquiry is on the government's tactics for
recruiting
the
defendant.
Rullán-Santiago
may
have
been
of
disreputable character, but Santiago-Cordero has not identified
any
specific
conduct
on
Rullán-Santiago's
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part,
whether
at
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 37 of 42
Camacho's
behest
inducement.
or
otherwise,
that
constitutes
improper
Thus, Santiago-Cordero did not meet his burden of
production on an entrapment defense, and was not entitled to an
instruction at trial.
CONCLUSION
For the reasons we have stated above, we affirm.
-Dissenting Opinion Follows-
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 38 of 42
TORRUELLA, Circuit Judge (Dissenting in Part).
The
majority holds that, as a matter of law, repeated suggestions
cannot give rise to a defense of entrapment.
dissent.
I respectfully
The purpose of sting operations is to bring willing
perpetrators to justice, not to induce law-abiding citizens to
err.
Repeated suggestions are precisely one way to induce law-
abiding citizens to err -- especially where, as here, those lawabiding citizens are in dire financial straits.
Because the majority has already laid out the facts of
this case, I summarize only the key facts here.
Salinas-Acevedo
was in debt, had a little daughter, and another child on the way
-- his financial situation was difficult, to say the very least.
Both the government agent and the middlemen knew this.
Still,
Salinas-Acevedo showed great reluctance to become involved in any
illegal drug transaction.
The middleman had to approach Salinas-
Acevedo multiple times in order to induce him to participate in
the drug transaction. Although Salinas-Acevedo initially agreed,
he later pulled out of the transaction on account of his little
girl.
It was only after being approached by the middleman again
that Salinas-Acevedo finally gave in and reluctantly participated
in the drug transaction.
The middleman's actions were all on the
direct instructions of the government agent.
Indeed, the final
instructions of the government agent to the middleman were "Hey,
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 39 of 42
get that guy," "find, find that guy," and, once more, "[f]ind that
guy" -- all referring to Salinas-Acevedo.
I agree with the majority that we are here faced with
derivative entrapment, and that the test for that has five prongs:
(1) a government agent specifically targeted
the defendant in order to induce him to commit
illegal conduct; (2) the agent acted through
the middleman after other government attempts
at inducing the defendant had failed; (3) the
government agent requested, encouraged, or
instructed the middleman to employ a specified
inducement, which could be found improper,
against the targeted defendant; (4) the
agent’s actions led the middleman to do what
the government sought, even if the government
did not use improper means to influence the
middleman; and (5) as a result of the
middleman’s
inducement,
the
targeted
defendant in fact engaged in the illegal
conduct.
United States v. Luisi, 482 F.3d 43, 55 (1st Cir. 2007).
I also agree with the majority that the first two prongs
of this test are satisfied -- but unlike the majority, I believe
that the third prong is satisfied as well.11
The
majority
takes
great
comfort
in
the
fact
that
"[u]nder the case law the government would be responsible if [its
agent] told [the middleman] to apply the pressure or inducement
11
Because the majority does not believe that the third prong
is satisfied here, it does not reach the fourth and fifth ones.
For the same reason, the majority also does not reach the improper
inducement prong of the entrapment analysis. On the facts of this
case, I have no difficulty finding that all these prongs have been
met.
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Case 3:10-cr-00342-CCC-SCC Document 625 Filed 01/17/17 Page 40 of 42
later deemed improper, and perhaps if [the government agent]
knowingly tolerated it, but not if [the government agent] were
ignorant of it."
Cir.
1996).
United States v. Rogers, 102 F.3d 641, 645 (1st
The
majority
then
reasons
that
there
are
no
indications that the government agent engaged in any improper
inducement; the majority emphasizes that even if the middleman
somehow did engage in improper inducement, then there is no
indication that the government agent had told the middleman to do
so.
However, "examples of improper 'inducement'" include the
use of "'repeated suggestions' which succeeded only when the
defendant had lost his job and needed money for his family's food
and rent."
United States v. Gendron, 18 F.3d 955, 961 (1st Cir.
1994)(Breyer, C.J.)(quoting United States v. Kessee, 992 F.2d
1001, 1003 (9th Cir. 1993)).
In the present case, the government
agent told the middleman to engage in exactly this kind of improper
inducement, for the government agent told the middleman to approach
Salinas-Acevedo repeatedly about the drug transaction, knowing
full well that Salinas-Acevedo had serious difficulties providing
for his family, and that he had declined to participate numerous
times.12
12
Another example of improper inducement is "dogged
insistence until [defendant] capitulated". Gendron, 18 F.3d at
961 (quoting United States v. Rodriquez, 858 F.2d 809, 815 (1st
Cir. 1988)(alteration in original); see also United States v.
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Other circuits have also found that repeated suggestions
constitute
improper
inducement
for
entrapment
purposes.
See
United States v. Mayfield, 771 F.3d 417, 435 (7th Cir. 2014)(en
banc)(holding that improper inducement "may be repeated attempts
at persuasion"); United States v. Kessee, 992 F.2d 1001, 1004 (9th
Cir. 1993)("[The government agent] induced [the defendant] to sell
narcotics by repeated entreaties, which only became successful
when [the defendant] had lost both his jobs and desperately needed
the money . . . A jury could have had a reasonable doubt as to
inducement or lack of predisposition"); United States v. Burkley,
591 F.2d 903, 915 (D.C. Cir. 1978) ("[T]he trial judge correctly
issued
an
entrapment
instruction
because
(1)
[the
government
agent]'s repeated requests constituted sufficient evidence of
inducement").
It is not surprising that our sister circuits have come
out this way, because the Supreme Court has found entrapment (even
as a matter of law) where repeated suggestions were involved.
Retracing the Supreme Court's key entrapment
cases may help illuminate the problem . . .
Montoya, No. 15-2089, 2016 WL 7336577, at *2 (1st Cir. Dec. 19,
2016) ("[Improper inducement] might include, for example, . . .
relentless insistence . . . to participate in a criminal scheme).
In the present case, I have no difficulty finding that the
government agent told the middleman to engage in "dogged
insistence" or "relentless insistence." This dissent focuses on
"repeated suggestions" in light of defendant's difficult financial
situation, because the facts of this case shout out "repeated
suggestions" even more loudly than they do "dogged insistence" and
"persistent insistence."
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In Sorrells the Court found that an entrapment
instruction
was
warranted
.
.
.
the
informant's persistent appeal to military
camaraderie
qualified
as
a
potentially
entrapping inducement.
[Sorrells v. United
States, 287 U.S. 435, 441 (1932).] In Sherman
the Court found entrapment as a matter of law
. . . the inducement there consisted of
repeated requests from an informant posing as
a fellow recovering addict who had fallen off
the wagon.
[Sherman v. United States, 356
U.S. 369, 371 (1958).] In Jacobson the Court
found entrapment as a matter of law . . . the
inducement in that case was a two-year
campaign
of
fake
mail-order
entreaties
conditioning the defendant to believe that
child porn was acceptable and encouraging him
to purchase it. [Jacobson v. United States,
503 U.S. 540, 546–47 (1992).]
. . . [In each of these cases] [t]he entrapment
defense was available because the government's
solicitation of the crime was accompanied by
subtle and persistent artifices and devices
that created a risk that an otherwise lawabiding person would take the bait.
Mayfield, 771 F.3d at 434 (emphasis added).
In sting operations, the Government should know when to
take "no" for an answer, lest, as here, the "Government's quest
for conviction leads to the apprehension of an otherwise lawabiding citizen who, if left to his own devices, likely would have
never run afoul of the law." Gendron, 18 F.3d at 961 (quoting
Jacobson, 503 U.S. at 553-54)(emphasis added in original).
I respectfully dissent.
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53
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