U.S. v. Tom, 99-2279.

• Decision Date: 03 June 2003
• Docket Number: No. 99-2279.,99-2279.
• Citation: 330 F.3d 83
• Parties: UNITED STATES of America, Appellee, v. Luis TOM, a/k/a Cuba, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

330 F.3d 83

UNITED STATES of America, Appellee, v. Luis TOM, a/k/a Cuba, Defendant, Appellant.

No. 99-2279.

United States Court of Appeals, First Circuit.

Heard January 8, 2003.

Decided June 3, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Martin D. Boudreau, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-appellant Luis Tom, also known as "Cuba," was convicted by jury of conspiring to possess cocaine base with intent to distribute, possessing cocaine base, distributing cocaine base, and aiding and abetting the possession and distribution of cocaine base. Tom was sentenced to seventy-eight months on each count, to run concurrently, and ordered to pay a $200 special assessment. He now appeals, arguing that (1) he should have been acquitted under an entrapment defense; (2) the jury instruction on entrapment was erroneous; (3) the district court made two evidentiary errors; and (4) the district court erred in failing to grant an adjustment for a minor role in the offense and refusing to grant a downward departure for overestimated criminal history. After careful consideration of each issue, we affirm the conviction and sentencing.

I. Background

In 1998, agents and officers of the Drug Enforcement Administration ("DEA"), the Worcester Police Department, the Massachusetts State Police, and the United States Marshals Service began an investigation into drug trafficking, particularly trafficking in cocaine base, or "crack," that initially focused on the Quisqueya nightclub on Main Street in Worcester, Massachusetts. As part of that investigation, DEA Special Agent Michael Pevarnik directed the cooperating witness John Quezada, an individual who had previously worked with the DEA on approximately 30 cases and who spoke both English and Spanish, to become a "regular" at the Quisqueya nightclub. Quezada began frequenting Quisqueya, calling Pevarnik after each visit.

On July 11, 1998, Quezada went to Quisqueya, where he overheard a woman named "Wanda" tell Tom that she was waiting for heroin that had not arrived yet. Later that evening, Quezada talked to Tom, whom he had not known previously, and informed him of his need for "a good connection" for heroin and crack cocaine. Tom replied that he had connections in Miami and New York, and gave Quezada his telephone number.

Shortly thereafter, Quezada called Tom to inquire about purchasing one ounce of crack cocaine. Tom agreed to try to find Quezada some crack cocaine. In a recorded conversation on July 15, 1998, Tom told Quezada that he was trying to arrange for Quezada to purchase the crack cocaine from a "white guy" who had 90% pure crack cocaine that he would sell for $300. Tom also said that his partner was going to New York, and that he, Tom, was "thinking of doing this business directly with you." When Quezada said that he was looking for someone to continue dealing with in the future, Tom told Quezada that he did not "like that scene." He added, "What I like is grass." But Tom also said that he would make the connection for Quezada, and the deal would be "[j]ust between you and me." At the end of their conversation, Tom told Quezada to call him the following day.

On July 16, 1998, in another recorded telephone conversation, Tom told Quezada that the supplier had nearly three ounces of crack cocaine available. Tom wanted Quezada to talk to the supplier to see if the cocaine was to his liking.

Quezada went to the Quisqueya Club the next day, and encountered Tom there. Tom quoted him three different prices — $650, $800, and $1300 per ounce, depending on the quality — for the crack cocaine. Tom also told Quezada that he could supply Quezada with heroin and promised to contact Quezada later.

On July 21, 1998, Tom called Quezada to discuss the crack transaction further. In a recorded conversation, Tom told Quezada that he had not yet settled on a price with the crack supplier, but that he was to talk to the supplier the next day and then call Quezada. The next day, Quezada was supposed to meet Tom to purchase the crack, but the transaction did not occur because Tom's supplier had been arrested.

Tom arranged an alternate transaction with Jarrot Carter, or "Blunt," for the purchase of one ounce of crack cocaine for $800. Quezada made this purchase, and three others, from Carter.

Based on the foregoing information, Tom was tried and convicted by jury verdict on all counts, sentenced by the court to seventy-eight months on each count — to run concurrently — and ordered to pay a $200 special assessment. This appeal followed.

II. Discussion

A. Entrapment

This Court reviews "de novo [Tom]'s claim that the district court should have granted his motion for judgment of acquittal because he was entrapped as a matter of law." United States v. LaFreniere, 236 F.3d 41, 45 (1st Cir.2001). We review the evidence in the light most favorable to the prosecution to determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. Id.

The entrapment defense involves "two elements: (1) government inducement of the accused to engage in criminal conduct, and (2) the accused's lack of predisposition to engage in such conduct." United States v. Rodríguez, 858 F.2d 809, 812 (1st Cir.1988) (citing Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). Once a defendant has made a sufficient threshold showing to raise the question of entrapment, the burden shifts to the government to prove beyond a reasonable doubt either that there was no inducement or that the defendant was predisposed to commit the offense. Rodríguez, 858 F.2d at 815.

As to the inducement prong of the defense, the evidence demonstrates that Quezada did not improperly induce Tom to engage in crack cocaine trafficking. "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the [g]overnment may prosecute." Jacobson v. United States, 503 U.S. 540, 548, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) (citing Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413 (1932)). It is undisputed that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells, 287 U.S. at 441, 53 S.Ct. 210; LaFreniere, 236 F.3d at 46. Quezada initially approached Tom for a heroin and crack cocaine "connection" and called Tom several times over the course of two weeks, but this does not establish the dogged pressure characteristic of inducement. See United States v. Tejeda, 974 F.2d 210, 218 (1st Cir.1992) (indicating that informant's actions initiating most of calls and "diligently pursu[ing]" drug transaction does not establish "persistent badgering" or inducement). Tom did not return most of Quezada's calls, a fact which suggests he felt neither compelled nor pressured to contact Quezada. Further, Tom did not ask Quezada to stop calling. See United States v. Acosta, 67 F.3d 334, 338 (1st Cir.1995) (where defendant did not make explicit request to be let alone, jury decision that there was no inducement was reasonable). Here, the government simply provided an opportunity for Tom to engage in a drug conspiracy but did not engage in any prohibited coercion to encourage him to do so.¹ Taken together, this evidence proved beyond a reasonable doubt that the government did not improperly induce Tom to commit crime.

There was also substantial evidence to support a finding that Tom was predisposed to deal in crack cocaine. Predisposition can be shown where a defendant "promptly avail[s]" himself of a government-provided opportunity to commit a crime. Jacobson, 503 U.S. at 549, 112 S.Ct. 1535. In this case, it is clear that Tom was predisposed to deal drugs because he immediately responded to Quezada's request for a "good connection" by giving him his phone number and informing him that he had the necessary connections. Within two weeks, Tom had introduced Quezada to multiple dealers and indeed a drug transaction was consummated. Cf. United States v. Vega, 102 F.3d 1301, 1307 (1st Cir.1996) (finding defendant was predisposed where he "supplied [the DEA special agent] with narcotics within one hour of their first encounter").

This Court has held that predisposition is evaluated by considering "how the defendant likely would have reacted to an ordinary opportunity to commit the crime." Gendron, 18 F.3d at 962. Factors to be weighed in making this determination include "(1) [defendant]'s character or reputation; (2) whether the initial suggestion to commit the crime was made by the government; (3) whether [defendant] was engaged in criminal activity for profit; (4) whether he showed reluctance to commit the offense, which was overcome by governmental persuasion; and (5) the nature of such persuasion or inducement." LaFreniere, 236 F.3d at 46. In spite of Tom's claimed reputation as a hard-working family man, he clearly had knowledge of and experience in the drug market. See Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967) ("It cannot be enough ... where the defendant readily agreed to engage in a criminal act, to show that he enjoys a good reputation."). Although Quezada approached Tom about needing to find a crack and heroin supplier, Tom showed no reluctance to help and needed no persuasion to assist Quezada in procuring the drugs. Indeed, Tom replied that he had connections in Miami and New York and furnished his own telephone number, strongly implying that he was open to further dealings. Ready agreement to commit a crime can "adequately evince an individual's predisposition." United States v. Gifford, 17 F.3d 462, 469 (1st Cir.1994). Finally, we have...