United States v. Shane Hare
820 F.3d 93
4th Cir.2016Background
- ATF and Prince George’s County PD ran a sting presenting Marvin Bowden with a fictitious cocaine "stash house;" Bowden recruited appellants Shane Hare, Gregory Williams, and Antonio Edwards to join the robbery plot.
- Undercover ATF agent posed as a drug courier offering 5 kg (plus a stash of 10–15 kg) and coordinated meetings with Bowden and the crew; the group planned the robbery and discussed weapons and use of force.
- At the arranged meeting to execute the plan, ATF arrested Bowden and the three appellants; firearms and masks were recovered.
- Appellants were tried and convicted on four counts: Hobbs Act conspiracy (18 U.S.C. §1951), drug conspiracy (21 U.S.C. §846), conspiracy to possess a firearm in furtherance of a drug trafficking crime or crime of violence (18 U.S.C. §924(o)), and possession of a firearm in furtherance of a drug trafficking crime or crime of violence (18 U.S.C. §924(c)).
- Pretrial motions: appellants sought discovery into race-based selective enforcement and moved to dismiss the indictment for outrageous government conduct; the district court limited discovery and denied the dismissal motion. Appellants appealed following guilty verdicts and sentences.
Issues
| Issue | Appellants' Argument | Government's Argument | Held |
|---|---|---|---|
| Selective enforcement discovery | Statistical showings that all stash-house defendants were Black warrant broader discovery into ATF targeting and criteria | Armstrong standard governs; appellants’ statistics lack appropriate comparators and no evidence of discriminatory intent; government already produced selection criteria | Denied beyond produced materials; statistics insufficient under Armstrong-derived standard; production of ATF selection page adequate |
| Outrageous government conduct (due process) | ATF’s use of stash-house sting, large inducement, and lack of investigation into appellants’ backgrounds was so egregious to bar prosecution | Sting operations permissible; defendants were recruited by Bowden, showed predisposition, and conduct did not shock the conscience | Denied; conduct not "so outrageous" to violate due process; entrapment jury instruction given but evidence supports predisposition |
| §924(c) aiding-and-abetting instruction (Rosemond) | Jury instruction failed to require advance knowledge of firearm, violating Rosemond | Any instructional error was harmless: Hare admitted possession; Williams and Edwards liable under Pinkerton because firearm possession was foreseeable | Affirmed: plain-error standard not met; convictions stand (Pinkerton alternative) |
| Predicate crime for §924(c) post-Johnson | Hobbs Act robbery may not be a "crime of violence" post-Johnson, so §924(c) conviction invalid | Jury also found firearm possession in furtherance of drug-trafficking predicate; special verdict shows conviction tied to drug conspiracy as well | No need to resolve John son issue; convictions upheld because jury found §924(c) liability as to drug-trafficking predicate |
Key Cases Cited
- United States v. Armstrong, 517 U.S. 456 (1996) (standard for proving selective prosecution and for obtaining discovery)
- United States v. Venable, 666 F.3d 893 (4th Cir. 2012) (application of Armstrong standard and discovery threshold)
- United States v. Olvis, 97 F.3d 739 (4th Cir. 1996) (statistical disparities require appropriate comparator to show discriminatory effect)
- Rosemond v. United States, 572 U.S. 65 (2014) (to aid-and-abet a §924(c) offense, accomplice must have advance knowledge a gun will be used)
- United States v. Russell, 411 U.S. 423 (1973) (outrageous government conduct doctrine and due process bar)
- Jacobson v. United States, 503 U.S. 540 (1992) (predisposition shown by ready response to inducement)
- United States v. Black, 733 F.3d 294 (9th Cir. 2013) (no due process violation for stash-house sting despite active targeting tactics)
- United States v. Goodwin, 854 F.2d 33 (4th Cir. 1988) (stings and reverse stings involving contraband are not per se outrageous)