870 F.2d 549 (9th Cir. 1989), 88-5177, United States v. Montilla

Docket Nº:88-5177.
Citation:870 F.2d 549
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Maria Yanibe MONTILLA, Defendant-Appellant.
Case Date:March 20, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 549

870 F.2d 549 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Maria Yanibe MONTILLA, Defendant-Appellant.

No. 88-5177.

United States Court of Appeals, Ninth Circuit

March 20, 1989

Submitted February 6, 1989.[*]

Page 550

Wayne R. Young, O'Neill & Young, Santa Monica, Cal., for defendant-appellant.

Stephen G. Wolfe, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, FARRIS and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Maria Montilla appeals her conviction upon a plea of guilty of conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Montilla argues that the "outrageous conduct" of federal agents violated her due process rights, and that this due process argument was not waived by her plea. We affirm the conviction, but vacate the $50 special assessment.

I

Montilla is a citizen of Colombia. In 1985 she entered the United States illegally. She came to know her codefendant, Hector Hernandez, and moved into an apartment in Los Angeles with him. Montilla had polio as a child and wished to obtain money to pay for an operation on her legs. In August 1987, Montilla met a man named Johnny at a dance. Johnny suggested that Montilla could make money selling cocaine. He arranged a meeting between Montilla and a government informant, Roberto. Montilla sold cocaine to Roberto on two occasions. She obtained the cocaine from Hernandez. Roberto told Montilla that he could introduce her to a physician who could help her obtain medical treatment if she sold cocaine to the physician.

On September 2, 1987, "Dr. Victor Guevara" contacted Montilla by means of a beeper Montilla carried. "Dr. Guevara" was, in fact, Special Agent Victor Guerrero of the FBI, posing as a physician. Guerrero had several meetings with Montilla, during which Montilla agreed to sell him ten kilos of cocaine--the transaction to be arranged by Hernandez. Hernandez attended some of the meetings. At others, Montilla and Guerrero met alone. Guerrero flirted with Montilla, and she apparently

Page 551

became attracted to the handsome "doctor". Guerrero indicated that he would help her obtain medical treatment, although he made no specific promises, and also told her that she should get a job that offered medical insurance.

On October 6, 1987, Montilla delivered the ten kilos of cocaine to Guerrero and was arrested. She was charged with conspiracy to possess cocaine, 21 U.S.C. Sec. 846, and possession of ten kilos of cocaine with intent to distribute. 21 U.S.C. Sec. 841(a)(1). The possession charge carried a ten-year mandatory minimum sentence. 21 U.S.C. Sec. 841(b)(1)(A)(ii)(II) (Supp. IV 1987). The conspiracy count did not carry a mandatory minimum. See 21 U.S.C. Sec. 846. The government offered Montilla a plea bargain; she could plead guilty to the conspiracy count in exchange for dismissal of the possession charge.

Montilla filed a pretrial motion to dismiss the indictment for outrageous government conduct, and requested an evidentiary hearing. Montilla's attorney attempted to paint a lurid picture for the district court of a helpless young woman forced to enter the drug trade by evil government agents preying upon her need for an expensive operation. The government countered with allegations that Montilla lived with a professional cocaine dealer, that she carried a beeper so she could help him with deliveries, and that she was certainly no stranger to the drug trade.

On February 16, 1988, the district court denied the motion for an evidentiary hearing. The court decided to delay consideration of the motion to dismiss...

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