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United States v. Delgado-Marrero

United States Court of Appeals, First Circuit

February 11, 2014

UNITED STATES OF AMERICA, Appellee,
v.
RAQUEL DELGADO-MARRERO, ÁNGEL L. RIVERA-CLAUDIO, Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

Rafael F. Castro-Lang, for appellant Delgado.

Linda Backiel, for appellant Rivera.

Jacqueline D. Novas-Debién, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.

Before Torruella, Howard and Thompson, Circuit Judges.

TORRUELLA, Circuit Judge.

Former San Juan Municipal Police Officers Raquel Delgado-Marrero ("Delgado") and Ángel Rivera-Claudio ("Rivera") were convicted by a jury on drug and gun charges arising from an FBI reverse sting operation called "Operation Guard Shack." They each received a fifteen-year sentence. On appeal, Delgado and Rivera raise multiple challenges, claiming both trial and sentencing errors by the district court. They each seek either a new trial or resentencing.

Our discussion begins with Delgado's contention that the district court committed reversible error by excluding the testimony of a defense witness. Because we agree with Delgado that the district court erred on this front, and that a new trial is needed to mend the error, we do not address any of her other appellate challenges.

With respect to Rivera, we agree that his sentence cannot withstand the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Applying Alleyne retroactively, we find that the district court plainly erred in articulating the jury instructions imparted in connection with a post-verdict special jury form. We further find that Rivera's other claims of error ultimately fail.

The necessary details follow, with a recitation of "the facts in the light most favorable to the government." United States v. Flores-Rivera, 56 F.3d 319, 322 (1st Cir. 1995).

I. Background

A. Operation Guard Shack

The FBI launched "Operation Guard Shack" as part of its efforts to combat police corruption throughout Puerto Rico.[1] As relevant here, the FBI hired a Puerto Rico Police officer ("Officer I") to pose undercover as a corrupt policeman with close ties to a mid-to-high-level local drug dealer.[2] Officer I's main responsibility was to recruit fellow police officers willing to provide armed security during a staged "multi-kilo" drug transaction. The FBI also hired another undercover Puerto Rico Police officer, "Officer II, " to play the role of the dealer during the staged drug transaction.

Delgado and Rivera were working partners stationed at the Antillas Police Precinct in San Juan, Puerto Rico. Delgado, a divorced mother of two, had no prior criminal record. She began her career as a municipal police officer in her late twenties. Before her arrest in 2010, Delgado had enjoyed five years of experience on the force, had never been the subject of an administrative complaint, and had received the award of "Municipal Police Woman of 2009." For his part, Rivera, who was twenty-four years old at the time of his arrest, enjoyed four years of experience in the municipal police force and, like Delgado, had untarnished criminal and administrative records.

Officer I reached out to Delgado sometime in the middle of 2009 as part of his undercover role as a corrupt policeman. Officer I knew Delgado from childhood. They grew up near each other, were middle-school classmates, and had once shared a close-knit circle of friends. After middle school, however, Officer I and Delgado went their separate ways and eventually lost touch with each other.

More than a decade later, Officer I identified Delgado as a possible target of Operation Guard Shack during a conversation with her ex-husband, who had asked to meet with him for an unrelated personal matter.[3] During the meeting, when Officer I asked about Delgado, her ex-husband told him that they were no longer together and that Delgado had several part-time jobs providing nighttime door security at veterinarian clinics as well as some pubs. Delgado's ex-husband also shared with Officer I his distaste for Delgado's part-time jobs, stating that he was concerned that the jobs were in unsafe locations. According to his testimony at trial, Officer I understood the ex-husband's concerns to mean that Delgado was part-timing in places where drug-trafficking activities occurred.

Officer I asked for Delgado's phone number during a second meeting with her ex-husband. Soon thereafter, he called her to see whether she was in fact doing part-time jobs at questionable locations. Although the FBI had instructed that phone conversations with Operation Guard Shack targets be recorded, [4]Officer I testified at trial that he was unable to record the first call with Delgado because he made it while on duty, with fellow officers nearby. Another unrecorded phone call took place shortly thereafter; Officer I testified that he could not record that conversation because some of his family members were nearby when he placed the call.

Officer I recorded a phone conversation with Delgado for the first time on July 20, 2009. The transcript of that conversation reflects that Officer I had previously invited Delgado, and she had agreed, to participate in a drug transaction, in which Delgado and an unnamed fellow officer[5] would provide security in exchange for $2, 000 each.[6]

Officer I recorded a second call with Delgado on July 23, 2009. This time, as depicted in the call's transcript, Officer I explained to Delgado that the transaction would take place inside a house; that Delgado and the fellow officer's job was simply to frisk two people that would come to pick up the "kilos"; that the job would begin at 8:00 p.m. and would last thirty minutes to an hour; and that Officer I would personally direct Delgado on how to get to the house.

B. The Sham Transaction

The sham drug transaction took place the next day. With the assistance of Officer I, who provided final minute-by-minute directions by phone, Delgado and Rivera arrived at the apartment in the municipality of Dorado, Puerto Rico, where the "transaction" was to take place. Officer I and Officer II waited in the apartment, where the FBI had placed hidden cameras and microphones in order to record the events.[7] Also in the apartment was a duffle bag containing the purported drugs underlying the sham transaction -- seven packages, or "bricks, " that the FBI had prepared to resemble one-kilogram blocks of actual cocaine.

The video recording of the "transaction" begins when Delgado and Rivera step into the apartment. Officer I, Delgado, and Rivera enter in full view of a hidden camera that was recording the entry door and foyer area of the apartment. To the left of the entry door is a kitchen, and Officer I offers drinks to Delgado and Rivera. Delgado takes a soda and Rivera a beer. Officer I then ushers them into a living room, where Officer II, in his role as a drug dealer, sits in the middle of a large L-shaped sectional sofa.

Another hidden camera captures the moment when Officer I, Delgado, and Rivera come into the living room. Officer I and Rivera sit on the sofa where Officer II awaits seated. Delgado asks where the bathroom is and steps out of the camera's range.

While Delgado is in the bathroom, Officer I and Officer II engage Rivera in friendly banter. Among other things, they ask Rivera about the type of gun given to the municipal police. Rivera states that he dislikes the old, secondhand gun he was provided, and, upon further probing from Officer I, retrieves the gun from underneath his jacket, waves it in the air so that the others can see it, and tucks it back in. Officer I and Officer II also show Rivera the gun each is carrying. When Delgado returns from the bathroom, the gun-related discussion continues, and she also shows her official gun, which she was carrying inside her waistband, hidden underneath her shirt. Delgado then sits down on the sofa between Rivera and Officer II.

The friendly banter continues for half an hour, including remarks about Delgado's birthday party, which is happening later that night. The conversation is interrupted when the purported drug buyer knocks at the door.[8] Immediately, Officer II instructs Rivera to open the door and to make sure that nobody enters the apartment armed. Rivera picks up a set of keys from the coffee table in front of the sofa and leaves to open the door. Officer I gets up and signals Delgado to follow him in order to assist Rivera. She gets up and follows Officer I out of the living room.

The hidden camera recording the area of the entry door captures Rivera approaching. He opens the door and orders the purported drug buyer to stand still and proceeds to frisk him.[9]Finding no weapons on the newcomer, Rivera walks him to the living room. There, the purported buyer greets Officer II and sits down on the sofa, and Officer I and Rivera return to their seats. Delgado remains standing and goes in and out of the camera's frame, but her voice can sometimes be heard as she participates in the conversation.

The friendly banter continues exactly where it left off. It is interrupted approximately fifteen minutes later, when the purported buyer tells Officer II to bring him the "stuff" because he is leaving. Officer II then casually tells Rivera to call an elevator that is apparently nearby, while at the same time signaling to him the direction of the elevator he is referring to. Rivera gets up from the sofa and walks away from the hidden camera's view. Officer II then tells Rivera, who is still out of view but apparently in the living room, to wait for the elevator doors to open and to hand what is inside the elevator to the buyer. A few seconds later, Rivera comes back carrying a duffle bag. He hands it to the buyer, and sits down on the sofa next to him.

Though the coffee table in front of the sofa blocks the camera's view, it appears that the purported buyer places the bag on the floor, between his legs, and opens it. He takes two packages out of the bag and stacks them on top of the coffee table. He does the same with two additional packages. He next seems to fiddle with something in the bag. Rivera remains seated to the right of the buyer. Delgado is still standing and does not appear in the video at this moment. One of Delgado's hands, which holds a cellular phone, comes into the camera's frame briefly a few times. Her voice can also be heard during the conversation, so it is safe to conclude that she remains somewhere in the living room.

The jovial atmosphere continues. Approximately a minute after placing the four packages on the coffee table, the purported buyer places them back into the duffle bag, closes it, stands up, places the carrying strap of the bag on his left shoulder, shakes hands with everyone, and walks to the entry door escorted by Rivera. Delgado stays in the living room chatting with Officer I and Officer II. When Rivera returns, Delgado goes to the bathroom a second time.

A new round of banter begins with Rivera, Officer I, and Officer II sitting around the sofa. Delgado joins in when she returns from the bathroom, though her attention often centers on her cellular phone, as she appears to be exchanging text messages with someone. A few minutes into the conversation, Officer II instructs Officer I to go get the "guys' stuff." Officer I walks out of the living room, away from the hidden camera's view. He appears back in the video a minute later holding two beers in his left hand and a stack of money in his right. He places the two beers on the coffee table in front of Rivera and Delgado, then sits down on the sofa to the left of Officer II. Between jokes and laughter, Officer I counts the money, eventually handing $1, 000 in $20 bills to Rivera. Rivera counts the money given to him. Officer I and Rivera follow the same routine until $4, 000 in cash exchanges hands. Upon Officer II's inquiry, Delgado and Rivera state that they are available to do a second job later on.

They are still on the sofa, jovially chatting with Officer I and Officer II, when the video recording from the camera in the living room cuts off. The video recording from the hidden camera in the entry area cuts off around the same time. One hour and a few minutes have lapsed since Delgado and Rivera stepped into the apartment.

C. The Arrest and Trial

The FBI arrested Delgado and Rivera on October 6, 2010, pursuant to a four-count indictment. Count One alleged that Delgado and Rivera knowingly and intentionally conspired to possess with intent to distribute five kilograms or more of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841 and 846. Count Two charged that Delgado and Rivera aided and abetted each other in an attempt to possess with intent to distribute five kilograms or more of a substance containing a detectable amount of cocaine, in violation of §§ 841 and 846, and 18 U.S.C. § 2. Counts Three and Four alleged that Delgado and Rivera, respectively, knowingly possessed a firearm in furtherance of the drug trafficking crimes charged in Counts One and Two, in violation of 18 U.S.C. § 924(c)(1)(A).

At trial, the government presented three witnesses: Officer I, Officer II, and the FBI special agent (the "Special Agent") who prepared the apartment and the duffle bag for the transaction. It also introduced into evidence (1) the two recorded phone calls between Officer I and Delgado; (2) the video recording of the transaction; and (3) five pictures of the duffle bag containing the "bricks" before the FBI placed it in the Dorado apartment. The government's theory was that the video recording of the transaction spoke for itself and showed guilt beyond reasonable doubt on all counts.

In her defense, Delgado argued entrapment. She presented her own testimony and the testimony of her ex-husband. In support of her entrapment defense, Delgado testified that for approximately one month, she rejected Officer I's persistent invitations of part-time employment; that during this period, Officer I called her repeatedly and sometimes took her out on dates; that she had romantic, sexual affairs with Officer I in 2005 and 2009; that weeks after the transaction, Officer I took her out on a date during which they had sexual intercourse; and that Officer I preyed on their long-lasting friendship and trust to overcome her expressed and firm resistence to participate in the transaction.

Despite this reluctance, Delgado testified that she finally gave into Officer I's insistent pressure. She further explained that she contacted her partner, Rivera, and that they "decided to go to the place" where the part-time job organized by Officer I was to be held. She stated that, following directions from Officer I, she asked for $2, 000 each -- for herself and Rivera -- in exchange for their roles in the deal; that Rivera drove her to the apartment depicted in the video; and that the two partners entered the apartment together with Officer I. She admitted that she was aware that the "bricks" involved in the transaction were narcotics and that she was doing something wrong, but she maintained that she only participated in the transaction because of Officer I's insistence, because of the "sentimental or romantic relationship" she had with him, and because of her trust in him.

In further support of her entrapment defense, Delgado sought to present the testimony of Brenda Rosa-Valentín ("Rosa-Valentín"), the younger sister of a fellow policeman Officer I grew up with and considered a dear friend. But on an objection by the government, the court decided to hear her testimony outside the presence of the jury, and ultimately ruled it inadmissable extrinsic evidence under Fed.R.Evid. 608(b).

Rivera neither took the stand nor presented any witnesses in his defense.[10] During opening statements, [11] Rivera's counsel told the jury that he intended to show that Rivera "was not guilty of conspiracy as charged in the Indictment, " and that Rivera had no intention of participating in the transaction before Officer I lured Delgado into it. Although the record shows that counsel told the court that he intended to present a derivative entrapment defense, the court ultimately did not allow the defense.[12]

After a three-day trial, the jury found Delgado and Rivera guilty on all counts. They were each sentenced to concurrent terms of ten years on Counts One and Two, corresponding to the statutory minimum under 21 U.S.C. § 841(b)(1)(A) for possession with intent to distribute five kilograms or more of cocaine. On Counts Three and Four, respectively, Delgado and Rivera each received a five-year sentence for possession of a firearm in relation to a drug trafficking crime, to run consecutively with their ten-year sentences under Counts One and Two, for total terms of imprisonment of fifteen years each. This consolidated appeal timely ensued.

II. Discussion

A. Delgado's Evidentiary Challenge

As relevant here, Delgado argues that the district court committed reversible error in excluding Rosa-Valentín's testimony, which "prevented [her] from presenting important evidence that [would have] aided . . . in establishing her only defense, that she was entrapped by [Officer I] in participating in the offense conduct." We agree.

1. Background

When the defense examined Officer I, the government objected, on relevancy grounds, to a question regarding his recollection of prior interactions with Rosa-Valentín. At sidebar, Delgado's counsel proffered that Rosa-Valentín, who was one of Delgado's witnesses, would testify that Officer I had offered her money in exchange for providing contact information of policemen to entrap. Rosa-Valentín would also testify that Officer I had confessed to her his desire to kill a man he thought had wronged her brother.[13] Following the proffer, the court stated: "Well, I will not allow you to ask [about] that unless I first hear that from [Rosa-Valentín]. . . . Because I think this is too much of a stretch. If you give me . . . some foundation evidence that he has done that, I will allow you to [recall Officer I]."

When the interrogation resumed, Officer I admitted that he had offered money to Rosa-Valentín in exchange for police officers' names. When asked about the timing of his proposal, Officer I said that he first mentioned it to Rosa-Valentín indirectly during a chance encounter with her while on duty patrolling his sector. In this regard, Officer I testified that, in responding to a late-night complaint about noise and loud music, he arrived at a commercial establishment where a birthday party appeared to be taking place. The party turned out to be Rosa-Valentín's. As Officer I recounted: "[W]hen the person that came out to explain why the music was so loud turned out to be her, I greeted everybody and then I continued patrolling. I explained to her that they needed to lower the music down, and . . . they told me that they were just about to close." Officer I denied having any beers or allowing the party to continue after 2:00 a.m. in contravention of a municipal ordinance. He also denied going to Rosa-Valentín's house looking for her more than fifteen times after the birthday party.

As proffered, Delgado called Rosa-Valentín to the witness stand as part of her case-in-chief. The government immediately objected, arguing that the testimony was irrelevant. At sidebar, defense counsel repeated the proffer previously given about Rosa-Valentín's testimony, and the court stated that it would have "to hear the evidence outside of the presence of the jury . . . to see if it's relevant."

Outside the presence of the jury, Rosa-Valentín stated that Officer I was her brother's lifelong friend and that she had known him for approximately thirty-three to thirty-four years.[14]She also stated that, during the funeral services for her sister-in-law, Officer I told her twice that he wanted to kill the man involved in the extramarital affair that allegedly caused the suicide.

Rosa-Valentín further testified that Officer I "used to tell [her] when he came home all the things that he used to do." Specifically, she testified that Officer I mentioned to her that he would go to a drug point in his patrolling sector, arrest a seller, "and [he] would tell the guy to call his boss. . . . [W]henever they got in touch with the drug dealer, [he] would tell him that in order to release his runner, he was going to have to give him something in return, either weapons, drugs, or money." Similarly, Rosa-Valentín testified that Officer I told her of other instances in which he would fabricate cases and arrest people to ask "for either drugs, weapons, or money, and he told [her] that he would always ask for weapons."

Rosa-Valentín next gave her version of the interactions she had with Officer I on the day of her birthday. According to her testimony, after greeting Officer I that night, he told her that "he was [on duty] in a [nearby] park so he could spend some time with us at the [party]." While at the party, she said that Officer I had around eight or nine beers. She stated that, at some point, a police sergeant drove by the party, but that the party was allowed to continue until 4:30 a.m. after Officer I spoke to the sergeant. Officer I left the party at around 1:30 or 2:00 a.m., but came back later. After the establishment where the party was being held had closed, Rosa-Valentín's guests (including Officer I) went to her house and continued the gathering until 6:00 a.m. Before the party was over, Officer I mentioned to Rosa-Valentín that he would come back the next day because he needed to talk to her.

According to Rosa-Valentín's testimony, Officer I came to her house the next day. Her account of that visit was as follows:

He came in [driving] the patrol car, like he always did, wearing his uniform. . . . He asked me if I could get some police officers for him . . . . He asked me if I could get some for him to do some part-time work, and I told him I would check, because I have a friend who already had part-time jobs. They worked at gas stations, that kind of thing. Again, he emphasized whether I had the phone number, whether I had it in a safe place. I said I did. And he told me that if anything came up, that I should call him, that he was offering me $5, 000 for every cop that I brought to him.

Rosa-Valentín also stated that Officer I persistently followed up on his inquiry: "during the day he would come three, four, five, six, seven times . . . then at night he would come in a patrol car." Officer I kept this routine up for four months, beginning in February and ending in mid-June.

Lastly, Rosa-Valentín testified that, when she refused to provide any information to Officer I, he invited her to do part-time work herself. She said that, when she asked what the part-time work would be, Officer I told her to go to an apartment in the municipality of Guaynabo, "and [that] he would talk to [her] over there." Officer I also told her that she could go to the apartment with her kids, that there was a pool and a tennis court in the complex, and that they would have a good time there.

After a brief examination by the government, the district court found Rosa-Valentín's testimony inadmissible under Fed.R.Evid. 608(b).[15] In so ruling, it rejected defense counsel's argument that Rosa-Valentín's testimony directly contradicted portions of Officer I's testimony. Counsel further argued that Rosa-Valentín's testimony was relevant to Delgado's entrapment defense. But the court ruled the entire testimony to be "nothing else but an attempt to circumvent Rule 608."

2. Applicable Law and Analysis

We review the district court's evidentiary findings for abuse of discretion, United States v. Pelletier, 666 F.3d 1, 5 (1st Cir. 2011), and reverse when, among other reasons, a decision rests on an erroneous conclusion of law. See, e.g., United States v. Pires, 642 F.3d 1, 10 (1st Cir. 2011). Where, as here, a defendant challenges a conviction on account of an evidentiary error, the verdict will not be overturned if "it is highly probable that the error did not affect the verdict." United States v. Pridgen, 518 F.3d 87, 91 (1st Cir. 2008). Put differently, "even if [an evidentiary] error occurred, it would not serve to overturn a conviction if it ultimately proved harmless." United States v. Landrón-Class, 696 F.3d 62, 68 (1st Cir. 2012). In this case, Delgado has demonstrated error, and the government has not met its burden of showing that the error was harmless. See United States v. Meises, 645 F.3d 5, 24 (1st Cir. 2011).

Our inquiry revolves around Rule 608(b), which in pertinent part prohibits the admission of extrinsic evidence "to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness." Fed.R.Evid. 608(b) (emphasis supplied). The phrase "character for truthfulness" was incorporated into the Rule by amendment in 2003.[16] The amendment sought to conform the Rule's language to the drafters' original intent, which was to exclude extrinsic evidence of a witness's general propensity for honesty and truth, rather than particular instances of honesty or dishonesty used for other non-propensity purposes. See Fed.R.Evid. 608(b) advisory committee's note.

Rule 608(b) was thus amended to do away with the mistaken notion that its reach extended to extrinsic evidence offered for general impeachment purposes, such as, for example, contradictions, prior inconsistent statements, bias, or mental capacity. Id. After the amendment, courts routinely find Rule 608(b) inapplicable to general impeachment evidence. See, e.g., United States v. Taylor, 426 F.App'x 702, 706 (11th Cir. 2011) (per curiam) (holding that Rule 608(b) did not bar testimony that contradicted defendant's story); United States v. Skelton, 514 F.3d 433, 441-42 (5th Cir. 2008) (stating that Rule 608(b) is inapplicable in determining the admissibility of evidence introduced to contradict a witness's testimony as to a material issue); United States v. Magallanez, 408 F.3d 672, 680-81 (10th Cir. 2005) (holding Rule 608(b) inapplicable because "the evidence was introduced not to 'attack' the witness's 'character'" but to demonstrate that a statement made during direct examination was false).

We examine the excluded testimony against this backdrop. As previously stated, Delgado avers that Rosa-Valentín's testimony contradicted Officer I's in several respects, and it is clear from the record that this was the case. Officer I, among other things, disavowed constantly visiting Rosa-Valentín after her birthday, whereas in her proffer she stated that it was precisely thereafter that Officer I harassed her for approximately four months, insisting that he be provided with contact information of police officers to do part-time work, sometimes going to her house more than seven times per day. Rule 608(b) does not preclude the introduction of this type of impeachment evidence. See Taylor, 426 F.App'x at 706; Skelton, 514 F.3d at 441-42; Magallanez, 408 F.3d at 680-81.

More importantly, however, we agree with Delgado that Rosa-Valentín's testimony would have shown how Officer I went about his participation in Operation Guard Shack and would thus support her entrapment defense. See United States v. Rizvanovic, 572 F.3d 1152, 1155 n.1 (10th Cir. 2009) ("Rule 608(b) does not bar extrinsic evidence to the extent it goes to substantive issues, and here the rebuttal evidence tended to disprove Defendant's affirmative defense . . . ."); see also United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (finding that Rule 608(b) does not preclude evidence negating a defendant's guilt).

It is black-letter law that an entrapment defense has 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. Sánchez-Berríos, 424 F.3d 65, 76 (1st Cir. 2005) (quoting United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988)).[17] In connection with the inducement prong, Rosa-Valentín and Delgado painted a similar picture of Officer I's relentless pursuit of Operation Guard Shack part-time workers. Rosa-Valentín testified that Officer I offered her large amounts of money and pursued her for four months --sometimes going to her house more than seven times a day -- trying to win her over so that she would provide contact information for part-time employees. In Delgado's case, she testified that Officer I courted her almost daily for approximately one month before she capitulated. See United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993) (finding that evidence of informant calling defendant on a daily basis for over a month requesting marijuana and threatening the defendant constituted a colorable entrapment defense).

Delgado's and Rosa-Valentín's testimonies similarly reflected that Officer I tried to lure them into Operation Guard Shack activities by appealing to their long-lasting friendships. See United States v. Wright, 921 F.2d 42, 45 (3d Cir. 1990) (explaining that improper inducement by law enforcement may take the form of pleas based on sympathy or friendship). But see United States v. Ford, 918 F.2d 1343, 1348-49 (8th Cir. 1990) (finding that friendship with a confidential informant is not evidence of entrapment). Delgado's and Rosa-Valentín's testimonies also reflected that Officer I attempted to manipulate his way around potential targets' reluctance to participate in an Operation Guard Shack "part-time." As to Rosa-Valentín, Officer I told her to bring her children to the "part-time" because there was a pool and a tennis court in the apartment where it would take place. Concerning Delgado, she said that Officer I romantically seduced her until she gave in to his invitations to engage in a "part-time."

Furthermore, Rosa-Valentín's testimony supported the propensity prong of Delgado's entrapment defense. For example, Rosa-Valentín's testimony showed that Officer I's pursuit of potential Operation Guard Shack targets was not limited to corrupt officers. In this regard, she testified that Officer I persistently asked her for contact information of police officers, even though she told him she knew only officers seemingly involved in legitimate part-time work (her exact words on this were: "They worked at gas stations, that kind of thing"). Rosa-Valentín also testified that Officer I invited her to participate in a "part-time" herself, despite the fact that she had no criminal record, links to the drug-trafficking trade, or involvement with the police force. Delgado testified similarly, stating that her untarnished criminal record shows that she had no inclination to engage in illegal activities before Officer I's month-long pursuit. See Rodriguez, 858 F.2d at 815-16 ...


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