Spoliation of ESI (Social Media Evidence) — Bad Faith Required in Criminal Cases (First Circuit)

When a person is caught red-handed in the commission of a crime, assiduous defense counsel often is tempted to consider an entrapment defense. In the case before us, the defendant followed this course -- but things did not go well for him. Among his other plaints, the defendant insists that the district court forced him to show his hand prematurely. And to make a bad situation worse, the court -- at the conclusion of all the evidence -- ruled that the defendant had not carried his entry-level burden of producing sufficient evidence to send the entrapment defense to the jury.

Following an adverse jury verdict and the imposition of sentence, the defendant now appeals. Ably represented, he advances several claims of error. After careful consideration, [*2]  we affirm.

I. BACKGROUND

We start with an overview of the case, reserving pertinent details for our ensuing discussion of specific issues.

On three occasions in the summer and fall of 2012, defendant-appellant Luzander Montoya sold heroin to a person surreptitiously cooperating with the federal government. A federal grand jury subsequently returned an indictment charging the defendant with three counts of possessing heroin with intent to distribute. See 21 U.S.C. § 841(a)(1). After a five-day trial, a jury found the defendant guilty on all three counts. The district court imposed a 132-month term of immurement and denied the defendant's motion for a new trial. This timely appeal followed.

II. DISCUSSION

We subdivide our discussion of the issues into four segments, corresponding to the defendant's asseverational array.

A. The Entrapment Defense.

The defendant's principal claim is that the district court erred in refusing to instruct the jury on entrapment. Because the court grounded this refusal in what it perceived to be the insufficiency of the relevant evidence, we review its ruling de novo, examining the record in the light most favorable to the defendant. See United States v. Shinderman, 515 F.3d 5, 13 (1st Cir. 2008).

A defendant must make a two-part threshold showing [*3]  in order to put an entrapment defense before the jury. First, he must adduce some evidence "that the government induced the commission of the charged crime." Id. at 14. Second, he must adduce some evidence that he "lacked a predisposition to engage in [that crime]." Id. In short, the defendant has an entry-level burden of production, which requires him to furnish "'some hard evidence' that 'governmental actors induced [him] to perform a criminal act that he was not predisposed to commit.'" Id. (alteration in original) (quoting United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988)).

If -- and only if -- the defendant makes this required "prima facie showing," id., the issue of entrapment is teed up to go to the jury. See United States v. Ramos-Paulino, 488 F.3d 459, 462 (1st Cir. 2007); United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987). Once that prima facie showing has satisfied the defendant's entry-level burden of production, the government must shoulder the burden of proving beyond a reasonable doubt that entrapment did not occur. See Coady, 809 F.2d at 122.

Against this backdrop, we turn first to the defendant's claim that he made a prima facie showing of improper inducement. On its face, this claim does not look promising: while the cooperating witness (the CW) approached the defendant seeking to buy heroin, the law is settled that merely showing that the government presented [*4]  a person with an opportunity to commit a crime is not enough to show improper inducement. See United States v. Guevara, 706 F.3d 38, 46 (1st Cir. 2013); see also United States v. Díaz-Maldonado, 727 F.3d 130, 139 (1st Cir. 2013) (differentiating between "government inducement" and "improper government inducement"). Beyond showing that the government afforded him the opportunity to commit the crime, the defendant must adduce evidence that the government engaged in some kind of "overreaching conduct." Díaz-Maldonado, 727 F.3d at 138. Such conduct might include, for example, intimidation, threats, relentless insistence, or excessive pressure to participate in a criminal scheme. See id. at 137.

To lay the groundwork for a finding that the government did more than create an opportunity for the commission of a crime, a defendant may identify "plus" factors -- factors that suffice to transform run-of-the-mill stage-setting into improper government inducement. See Guevara, 706 F.3d at 46; United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). The defendant strives to identify several such factors. To begin, he notes that he and the CW were friends and suggests that the government played upon this friendship to lure him into wrongdoing that he otherwise would have eschewed. Next, he suggests that the CW's references to his (the CW's) heroin addiction prompted the defendant to make the sales out of sympathy. Neither of these suggestions [*5]  qualifies as a "plus" factor.

The mere existence of friendship, in and of itself, does not constitute improper inducement. See United States v. Young, 78 F.3d 758, 761-62 (1st Cir. 1996). Friendship becomes relevant to this inquiry only if the defendant can show that the government cooperator so appeals to friendship as to cause a non-predisposed defendant to commit the crime. In other words, there must be an "accompanying allegation of coercion, threat, or plea based upon friendship . . . that would constitute more than mere opportunity." Id. at 762; see United States v. González-Pérez, 778 F.3d 3, 12 (1st Cir.), cert. denied, 135 S. Ct. 1911 (2015) (finding no prima facie showing of improper inducement when defendant "cite[d] no evidence indicating that [the government cooperator] solicited his participation by appealing directly to their friendship"); Díaz-Maldonado, 727 F.3d at 138 (similar). Here, the defendant presented evidence indicating that he and the CW were friends; he presented no evidence, though, indicating that the CW appealed to this friendship to get the defendant to sell him heroin. On this record, a jury could have found that the CW betrayed the defendant, but not that he improperly induced the defendant into committing the crime.

This leaves the defendant's suggestion that the CW's heroin addiction constituted a "plus" factor. Although the CW used [*6]  his addiction as one of the reasons that he was seeking to purchase heroin, that passing reference to addiction did not suffice to create a "plus" factor. See Young, 78 F.3d at 761-62. There must be some evidence that the government cooperator used his addiction either to engender sympathy or to create a sense of urgency, cf. Gendron, 18 F.3d at 961 (noting that improper inducement might be found when the government took unfair advantage of defendant's sympathy for cooperator's withdrawal symptoms), and the defendant introduced no such evidence here. In fact, the record contains more references to the CW's ostensible attempts to resell the defendant's heroin than to the CW's purported addiction.

The defendant attempts to mitigate the effect of his lack of inducement evidence by blaming the government. To put this argument in perspective, some additional facts are needed.

While the government was targeting the defendant in the summer and fall of 2012, the defendant and the CW communicated in person, over the telephone, by text, and perhaps over Facebook. The defendant alleges that the government did not preserve complete records of all of these communications and posits that its failure gives rise to an inference of spoliation, which [*7]  should be counted as an additional "plus" factor.

It is undisputed that the government did not retain complete records of the CW's telephone calls with the defendant (even though a government agent agreed at trial that it "would have been good" to do so). In addition, the defendant elicited testimony from the same government agent regarding the failure to preserve records of any messages that the defendant and the CW might have exchanged on Facebook. The agent acknowledged that the CW had used Facebook to communicate with other targets of the investigation. He testified, though, that he did not know whether the CW had ever used Facebook to communicate with the defendant and, as a result, he did not request records from the CW's Facebook account when building a case file. The agent added that if any such contacts ever occurred, the records were lost when he instructed the CW to erase his Facebook account as a safety precaution before the CW's planned entry into the witness protection program.

The defendant argues that the failure to preserve any Facebook messages and the entirety of the call logs should give rise to an inference of spoliation and, thus, serve as an additional "plus" factor. [*8]  His argument appears to be that, had the government retained the records, he might have found some evidence of improper inducement. For instance, he might have been able to use the records to identify a "little link in the chain" that would help to get the inducement issue to the jury. The district court disagreed, and so do we.

What transpired here cannot plausibly be regarded as a "plus" factor. Such factors derive from affirmative evidence; merely identifying the absence of affirmative evidence does not create a "plus" factor. See Guevara, 706 F.3d at 46-47; Gendron, 18 F.3d at 961-62.

In all events, even if an inference of spoliation could constitute a "plus" factor -- a matter that we need not resolve — no such inference is warranted here. An inference of spoliation is appropriate "where there is evidence from which a reasonable jury might conclude that evidence favorable to one side was destroyed by the other." United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). However, negligent destruction of evidence is generally insufficient to justify a spoliation instruction; some indication of bad faith is required. See id. at 902-03.

Even assuming that the missing call logs and Facebook messages might have contained favorable evidence, an inference of spoliation would still not be justified because the [*9]  defendant adduced no evidence suggesting that the government neglected to preserve the records in bad faith. The opposite is true: the failure to retain call logs was at most careless, and -- considering the CW's imminent entry into the witness protection program -- there was good reason for scrubbing his Facebook account. In fact, with respect to both the call logs and the Facebook messages, the defendant's lawyer acknowledged at trial that he did not think that "there was any bad faith on anyone's part."1

1   The defendant argues in passing that the district court's failure to charge the jury concerning an inference of spoliation constituted instructional error. That argument is specious. The defendant did not request such an instruction at trial, nor did he object when the court did not give one. As a result, we review this argument only for plain error. See Fed. R. Crim. P. 30(d) (citing Fed. R. Crim. P. 52(b)); United States v. McPhail, 831 F.3d 1, 9 (1st Cir. 2016); United States v. Paniagua-Ramos, 251 F.3d 242, 245-46 (1st Cir. 2001). For reasons already alluded to, see text supra, there was no error, plain or otherwise.

The short of it is that the district court did not err in holding that the defendant failed to make a prima facie showing of inducement. Because the two requirements for a prima facie showing of entrapment are conjunctive, that is, the defendant must carry his entry-level burden of production as to both improper inducement and lack of predisposition, see Shinderman, 515 F.3d at 14, no more is exigible to uphold the district court's refusal to send the entrapment defense to the jury. In the interest of completeness, however, we add a few words about the defendant's failure to make a prima facie showing of lack of predisposition.

In determining predisposition or the lack of it, we consider how the defendant [*10]  "likely would have reacted to an ordinary opportunity to commit the crime." Gendron, 18 F.3d at 962. Relatedly, we look for evidence indicating that the defendant was an unlikely candidate to commit the crime before the government approached him. See United States v. Joost, 92 F.3d 7, 14 (1st Cir. 1996) (citing Jacobson v. United States, 503 U.S. 540, 550 (1992)).

The defendant asserts that "the government . . . had no information" that he was selling drugs in July of 2012 and insists that he was otherwise gainfully employed with no reason to engage in the drug trade. But the evidence of the defendant's lawful employment was dwarfed by a surfeit of evidence indicating that the defendant had previously been convicted of at least one drug-trafficking offense and was actively engaged in the drug trade when the CW first approached him. This evidence includes statements from the defendant regarding other customers, statements regarding his drug inventory and his periodic need to replenish it, and statements indicating that he had a direct pipeline with at least one supplier.

The record is likewise barren of any evidence that pressure was needed to persuade the defendant to sell the heroin. To the contrary, he frequently initiated contact with the CW. Before the second sale, the defendant even offered to sell the CW [*11]  a particular brand of heroin that the defendant considered better quality than the last. These are indicia of predisposition, not indicia of a lack of predisposition. See Rodriguez, 858 F.2d at 815. In sum, a reasonable factfinder, assessing this evidence in its totality, could not have found that the defendant had made a prima facie showing of lack of predisposition. See Shinderman, 515 F.3d at 14.

That ends this aspect of the matter. We hold that the district court did not err in refusing to charge the jury on entrapment.

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