U.S. v. Panet-Collazo

• Decision Date: 06 November 1991
• Docket Number: 91-1463,PANET-COLLAZ,SANTANA-DIAZ,Nos. 91-1404,D,s. 91-1404
• Citation: 960 F.2d 256
• Parties: UNITED STATES, Appellee, v. Pabloefendant, Appellant. UNITED STATES, Appellee, v. Rubena/k/a Raul, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 256

960 F.2d 256

UNITED STATES, Appellee, v. Pablo PANET-COLLAZO, Defendant, Appellant.

UNITED STATES, Appellee, v. Ruben SANTANA-DIAZ a/k/a Raul, Defendant, Appellant.

Nos. 91-1404, 91-1463.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1991.

Decided March 31, 1992.

Ramon Garcia, for Pablo Panet-Collazo.

Frederic Chardon Dubos, for Ruben Santana-Diaz.

Margaret A. Grove, with whom Harry J. Matz, Eumi L. Choi, Isaias Ortiz, Attys., Mary Lee Warren, Chief, Crim. Div., and Robert S. Mueller, III, Asst. Atty. Gen., were on brief, for appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is a consolidated criminal appeal. Defendant-appellant Ruben Santana-Diaz (Santana-Diaz) appeals from his convictions for conspiracy to possess with intent to distribute cocaine and heroin and an attempt to possess with intent to distribute heroin. Defendant-appellant Pablo Panet Collazo (Panet Collazo) challenges his sentence for the same conduct. Panet Collazo pled guilty. Santana-Diaz stood trial alone. We had previously issued an opinion in this case without the aid of the trial transcripts. We now write a new opinion with the benefit of the trial transcripts. ¹ We affirm the conviction and sentence of Santana-Diaz and the sentence of Panet Collazo.

Background

The Drug Enforcement Administration (DEA) in June of 1990 undertook an investigation of a narcotics distribution scheme operating out of Hilda's Restaurant in Carolina, Puerto Rico after receiving information from a confidential informant (CI). DEA Special Agent Thomas Geisel (Geisel) used the CI for introductions to members of the operation. The CI introduced Geisel to among others, Santana-Diaz, his brother Virginio Santana-Diaz, and Panet Collazo.

Geisel set in motion a "reverse sting" operation whereby he would purportedly supply heroin to the operation for distribution in Puerto Rico. In the course of the next several months Geisel spent time with the members of the organization to determine the scope of the drug operation. In one conversation, on June 13, 1990, Panet Collazo explained to Geisel that his organization could not move forward with a new drug deal because it had just received forty kilograms of cocaine and had eleven left to sell. In another conversation, Panet Collazo stated that his financial interests in horses and stables were just a way to launder money from the drug operation. Santana-Diaz explained, during one discussion with Geisel, that he, along with Panet Collazo, imported cocaine and heroin into Puerto Rico and then sold it in kilogram quantities.

The transaction that is the subject of this appeal was negotiated on September 29, 1990. At that time, Panet Collazo and Santana-Diaz agreed to enter into a joint venture with Geisel to purchase 5.6 kilograms of heroin from Geisel's purported Chinese supplier. They agreed to purchase the heroin in eight units of 700 grams each. The purchase price of each unit would be $90,000. The three would then turn around and sell the units for $125,000 each, making a profit of $35,000 per unit. Five thousand dollars of the profit would be given to Panet Collazo's boss, while the remaining thirty thousand dollars would be split between Geisel and the two defendants. Geisel and Panet Collazo would each receive three-eighths, and Santana-Diaz would receive a quarter.

Geisel, on October 16, 1990, gave Panet Collazo and Santana-Diaz a heroin sample to test for quality. The next day the agent gave Santana-Diaz a second sample. Around this time the details of the transaction were finalized. The purchase was to be accomplished in half-hour intervals with one unit sold at a time. At this time Panet Collazo informed Geisel that he had arranged financing for all eight units.

Later that day, Francisco Rodriguez-Claudio and Gilberto Miranda-Lopez, the financiers for the purchase, arrived at the meeting place with enough money to buy one unit of the heroin. Also present were Geisel, Santana-Diaz, and Panet Collazo, who were to act as brokers for the deal. After the money was produced for the first purchase, they were all arrested.

Ruben Santana-Diaz

The jury found Santana-Diaz guilty of conspiracy to possess with intent to distribute in excess of five kilograms of heroin and cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846; and aiding and abetting an attempt to possess with intent to distribute 5.6 kilograms of heroin in violation of 21 U.S.C. § 841(a)(1), § 846 and 18 U.S.C. § 2.

At Santana-Diaz' sentencing hearing the court determined the applicable base offense level to be 34, using 5.6 kilograms as the amount involved in the offense. U.S.S.G. § 2D1.1(c)(5) and § 2D1.4. Because of Santana-Diaz' role in the offense as a manager or supervisor, the trial court adjusted the base offense level upwards three levels, for a total of 37. U.S.S.G. § 3B1.1(b). Santana-Diaz was sentenced to 260 months imprisonment and five years of supervised release as to each count, to run concurrently.

Santana-Diaz raises six issues on appeal: (1) that the district court erred by failing to give a jury instruction on entrapment; (2) that the trial court erred in not dismissing the indictment based on the government's outrageous conduct; (3) that the trial court erred in not declaring a mistrial based on the government's improper remarks in its rebuttal closing argument; (4) that the trial court erred in sentencing by using 5.6 kilograms as the amount involved in the offense; (5) that the trial court erred in giving a three level increase to the base offense level for his role in the offense; and (6) that the trial court erred in sentencing him in the upper part of the guidelines.

A. Entrapment Instruction

Santana-Diaz claims that he was entitled to a jury instruction on the theory of entrapment. He argues that there was enough evidence in the record to find both that the government induced him to commit the crime and that he lacked the predisposition otherwise to do so.

The defense of entrapment has two elements: (1) that the government induced the defendant's criminal conduct; and (2) that the defendant otherwise lacked the predisposition to engage in the criminal conduct. United States v. Morales-Diaz, 925 F.2d 535, 538 (1st Cir.1991); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.1988). A defendant is entitled to an instruction as to his theory of entrapment if he produces some evidence to support fairly both elements. Id. at 814. This evidence, however, must be 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. Pratt, 913 F.2d 982, 988 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). We review the failure of a trial judge to give a jury instruction on the theory of entrapment de novo, and we make that determination based on the legal sufficiency of the evidence. United States v. McKenna, 889 F.2d 1168, 1174 (1st Cir.1989); Rodriguez, 858 F.2d at 812.

After reading the trial record carefully we find that Santana-Diaz did not adequately demonstrate that he was not otherwise predisposed toward drug dealing. Santana-Diaz relies on evidence of his character and employment to demonstrate that he was not predisposed toward drug trafficking. For example, Santana-Diaz produced several character witnesses who testified to his hardworking, peaceful nature. The witnesses, however, were unaware of Santana-Diaz' activities outside the narrow context of his neighborhood and/or work activities. They had never been to Hilda's Restaurant, the establishment frequented by Santana-Diaz, and were ignorant of his activities there. Further, this court has noted that "[i]t cannot be enough ... where the defendant readily agreed to engage in a criminal act, to show that he enjoys a good reputation." Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967).

Further, Santana-Diaz testified that he became involved in drugs in large part because of his ambition to have a taxi to leave to his children and to otherwise improve his financial condition. We have held that "[e]ntrapment does not blossom whenever a person succumbs to his own greed or to the lure of easy money." United States v. Coady, 809 F.2d 119, 121 (1st Cir.1987). To the extent that Santana-Diaz presented evidence that he was lured by the easy money, he did not meet his burden that he lacked predisposition to commit the offense.

Finally, the government presented tapes of conversations which indicated Santana-Diaz' familiarity with the drug trade. In one conversation Santana-Diaz bragged that he had "seen the Chinese rock many times" referring to heroin. In another conversation Santana-Diaz stated "that he had worked with cocaine a lot." In a third conversation with an undercover agent posing as a Chinese heroin supplier Santana-Diaz stated flat out: "You know the money anyway, yes this is my heart, hey this job, you know, it's my life, it's your life." In the face of the overwhelming evidence that Santana-Diaz had been previously involved in drug trafficking, and Santana-Diaz' own testimony that he was motivated in large part by greed, Santana-Diaz was not entitled to a jury instruction on entrapment.

B. Government's "Outrageous Conduct"

Next, Santana-Diaz alleges, although it is somewhat unclear from his brief, that the trial court erred in not dismissing the case because of the government's outrageous conduct. Specifically, Santana-Diaz' objection stems from the testimony of Geisel during the trial. Geisel testified that the foolproof way to test the purity of heroin was to give it to a junkie. If the junkie died, then one would know that the heroin was pure. Santana-Diaz argues that, given this testimony, it was improper for the government to give samples of heroin to Santana-Diaz.

Viewing the comment in context, however, reveals...