Martinez

Dissenting:

I respectfully dissent.

The majority holds, as a matter of law, that the jury was unreasonable in finding that Martinez was predisposed to enter into a drug transaction.

According to the testimony of Planearte, the government’s agent, he met Martinez while doing some work on Martinez’s car. Martinez asked him whether he worked only as a mechanic, to which Planearte responded that he also bought and sold drugs in large quantities. Martinez immediately volunteered that he had a person “who makes the crank.” Planearte then asked whether he would introduce him and Martinez said he wasn’t sure at that moment. About two weeks later, Martinez called Planearte for help with his ear. Planearte examined the car. Martinez then told him that he had spoken with his brother-in-law, who had asked how many pounds Planearte would want. The latter responded, 50 pounds to begin with.

Over the next three-and-a-half months, Planearte and Martinez had a number of contacts. Planearte explains that they were negotiating the first drug sale; the majority apparently believes Martinez when he says that Planearte was pressuring him into dealing drugs. Within a month of the first sale of a…

Opinion by Judge TASHIMA; Dissent by Judge SCHWARZER.

ORDER

The Memorandum disposition filed July 24, 1997, 1997 WL 418890 , is hereby withdrawn and the opinions attached hereto are ordered filed in its place.

OPINION

Benjamin Martinez was convicted by jury of distribution of methamphetamine and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). The district court then granted his motion for a judgment of acquittal and, in the alternative, for a new trial, finding that the government had failed to carry its burden with respect to Martinez’s entrapment defense. United States v. Martinez, 924 F.Supp. 1025 (D.Or.1996). The government appeals. We have jurisdiction under 18 U.S.C. § 3731 , and we affirm.

I.

In early 1995, Martinez moved to Gervais, Oregon, and was introduced to Alvaro Planearte by a mutual friend. Unknown to Martinez, Planearte was a paid police informant. Within three months, Martinez would sell or attempt to sell more than 12 pounds of methamphetamine to Planearte.

Because the central issue in this case is whether Planearte entrapped Martinez, the key facts revolve around the relationship between these two men.…