United States v. Demmler
655 F.3d 451
6th Cir.2011Background
- Demmler was convicted of obstruction of justice, witness tampering, and conspiracy in the Sixth Circuit; Poulsen was co-defendant and tried with him.
- Evidence showed Demmler and Poulsen sought to influence a witness (Gibson) by offering payment and directing her testimony in a Florida securities fraud case involving NCFE.
- Gibson pleaded guilty to conspiracy to commit securities fraud and cooperated with investigators, providing recorded communications and testimony.
- A district court did not grant an entrapment instruction requested by Demmler and Poulsen; the court found no evidence of government inducement or defendant predisposition.
- At sentencing, the PSR pegged the underlying fraud at over $400 million, leading to a guideline range of 97–121 months; the court varied downward to 84 months.
- Demmler appeals on entrapment, the definition of corrupt, and the reasonableness of his sentence based on alleged procedural errors in the PSR calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to entrapment instruction | Demmler argues insufficient elements; requesting instruction shows entitlement | Government inducement lacking; Demmler predisposed | No plain error; district court did not err in denying entrapment instruction |
| Definition of corrupt and invited error | Corrupt defined as improper conduct; could convict illegal conduct | Instruction invited error; defense not harmed | Waived under invited error doctrine; no reversible error |
| Sentencing—scope of underlying fraud and Rule 32 posture | PSR overstated knowledge; procedural errors in ruling on disputes | District court did rule on disputes; facts show knowledge of size | No clear error; knowledge of scope supported increased offense level |
| Confrontation Clause issue regarding loss amount | Right to challenge PSR loss calculation | Knew size of offense at conspiracy; confrontation not violated | Meritless under Miller; knowledge of offense charged controls |
Key Cases Cited
- Mathews v. United States, 485 U.S. 58 (1988) (entrapment elements; evidentiary threshold for instruction)
- Khalil v. United States, 279 F.3d 358 (6th Cir. 2002) (predisposition and entitlement to entrapment instruction)
- United States v. Al-Cholan, 610 F.3d 945 (6th Cir. 2010) (factors for predisposition in entrapment analysis)
- United States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (predisposition consideration in entrapment)
- United States v. Nelson, 922 F.2d 311 (6th Cir. 1990) (inducement versus predisposition principle)
- United States v. Miller, 161 F.3d 977 (6th Cir. 1998) (knowledge of scope of offense supports sentencing adjustments)