After selling drugs on two occasions to a government informant, Frantz DePierre was tried and convicted of distributing cocaine in powder form (in the first sale), 21 U.S.C. § 841(a)(1) (2006), and of distributing 50 grams or more of cocaine base (in the second), id,., which carries a ten-year minimum sentence, id. § 841(b)(l)(A)(iii). In reviewing DePierre’s appeal, we begin with a brief overview of events, adding detаils in the discussion of individual claims of error.
In January 2005, a confidential informant (“Cl”) working with government agents received a call from DePierre. According to the Cl’s later trial testimony, DePierre offered to sell the Cl crack cocaine. The Cl, himself a former drug dealer, had been working with agents to investigate firearm and drug sales in the Haitian community in and around Boston, and the Cl and DePierre had had earlier contacts. In a follow-up recorded phone call by the Cl, primarily concerning proposed gun purchases, DePierre confirmed that he had the “cookies,” a reference to сrack according to the CL 1
The two men then agreed on a purchase by the Cl of a quantity of powder cocaine,
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although DePierre confirmed that he could “[cjhef [it] up,” meaning to cook the powder into crack.
See United States v. Santiago,
Following indictment, DePierre pled to one firearms charge, three other firearms charges were dismissed, and trial followed solely on the two drug charges. Without denying the two sales, DePierre urged he had been entrapped, principally as to the sale of cocaine base. The entrаpment defense was submitted to the jury, which after a four-day trial rejected the defense and convicted DePierre on both charges. The judge sentenced DePierre to ten years in prison, the statutory minimum for a sale of 50 or more grams of cocaine base. DePierre now contests only thе cocaine base conviction and the ultimate sentence, albeit on several different grounds.
DePierre’s main contention on appeal relates to the distinction between crack and cocaine base, critical at sentencing, but we start with DePierre’s conviction. Herе, he claims that the judge misinstructed the jury on his substantive entrapment defense and, relatedly, that the judge erred at sentencing in rejecting DePierre’s counterpart claim that the government engaged in sentencing factor manipulation. Both arguments rest on the premise that DePierre sought only to sell powder cocaine but was wrongfully induced to sell crack.
Although DePierre does not say that the evidence compelled the jury to accept the defense, a description of the evidence on both sides provides context for the misinstruction claim. DePierre had in his favor the faсts that he initially delivered powder cocaine and that further contacts had to be made by the Cl before crack was procured. One of the government agents testified candidly that he sent the Cl back to renew his efforts precisely in order to see whether DePierre could be drawn into а sale of crack, carrying with it the prospect of a higher sentence.
It may be this express admission that prompted the judge to submit to the jury the entrapment claim, an obligation that exists only where there is record evidence that “fairly supports” the claim.
United States v. Rodriguez,
Under the precedents, once the defendant makes a preliminary showing, the burden shifts to the government to prove beyond a reasonable doubt one of two things,
either
of which defeats the defense: that the government did not wrongfully induce the accused to engage in criminal conduct
or
that the accused had a predisposition to engage in such conduct absent the inducement.
Mathews v. United States,
However, in practical terms the defense is difficult for the defendant because the threshold that must be met to show
wrongful
inducement is a high one. By their nature, “stings” and other such long-
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permitted operations of law enforcement do “induce” crimes, if that word is used in its lay sеnse. But it is settled that only
undue
pressure or encouragement are forbidden.
United States v. Rogers,
In this instance, the jury could easily reject the entrapment defense for lack of impropriety, because of propensity or both. If the Cl were credited, DePierre’s initial call
was
a proposal to sell crack; DePierre made clear that he could cook the powder into crack if desired; and although the Cl made multiple phone calls to DePierre to set-up the two drug sales, no evidence indicates that the agents or the Cl applied any undue pressure to secure the crack оr even had to overcome resistance. The government’s desire to establish the more serious crime may offend the fastidious, but inviting crime is the essence of sting operations.
Cf. United States v. Terry,
Still, DePierre was entitled to have any instruction given be a proper one. He did not object to the original instruction nor to a summary definition thereafter given at the jury’s request; but when the jury then asked for more guidance, the judge provided a written summary of the inducement and predisposition criteria. DePierre objected to the written summary’s use of the word “improperly” to qualify the character of the government conduct required. The judge’s summary said that the government must prove:
One, that the cooperating informant did not improperly persuade or talk the defendant into committing the crime. Simply giving someone an opportunity to commit a crime is not the same as improperly persuading him, but excessive pressure by the cooperating informant can be improper; OR
Two [,] that the defendant was ready and willing to commit the crime without any improper persuasion from the cooperating individual.
Courts have had difficulty tailoring a useful abstract definition of what is wrongful inducement — this is equally true of “reasonable doubt,”
see United States v. Whiting,
There was nothing wrong in using the term “improper,” and a number of our own decisions have done so. Thus, in
Santiago,
we said that the “inducement” prong requires “a degree of pressure оr ... other tactics that are improper.”
This brings us to DePierre’s related claim of sentencing factor manipulation, which occurs when the government “improperly enlarge[s] the scope or scale of [a] crime” to secure a longer sentence than
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would otherwise obtain.
United States v. Vasco,
But the entrapment defense in federal courts dates back to the 1930s,
see Sorrells v. United States,
For sentencing factor manipulation, impropriety is the main focus, although predisposition is sometimes described as negating the claim,
Jaca-Nazario,
This comparatively high threshold owed something to concerns about undermining detailed statutory and guideline provisions designed to control variations in sentencing and, conversely, perhaps to a perception that ordinary entrapment doctrine has a clоse relationship to drawing the line between guilt and innocence, where courts are especially protective.
Montoya,
In all events, there was no wrongful manipulation here under any phrаsing of the standard. This is patent if the trial judge believed the Cl’s statement that DePierre himself offered crack in the first conversation; but in any case, the evidence already discussed shows that the Cl exerted no real pressure, let alone undue pressure, to secure the sale of crack, which DеPierre showed no hesitation in providing. We add that manipulation decisions by the sentencing judge are reviewed with deference,
Jaca-Nazario,
This brings us to DePierre’s main claim. The drug statute requires that to generate
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the mandatory minimum tеn-year sentence, the sale or sales comprise 50 grams or more of “cocaine base.” 21 U.S.C. § 841(b)(1)(A)(iii). The jury was instructed to determine the nature and amount of the drug sold because these facts raise the statutory
maximum
for drug distribution and trigger the requirements of
Apprendi v. New Jersey,
The statutory offense is defined as the sale (or other defined acts) of any amount of any drug comprising “a controlled substance,” 21 U.S.C. § 841(a), and the distinctions as to the type of controlled substance and the amount are primarily a concern of the statutory provisions defining “[penalties,”
id.
§ 841(b);
United States v. Goodine,
However, the character of the drug could affect the judge’s choice of sentences and, if the judge had wrongly classified the drug here at issue as one for which Congress had aimed at higher sentences, there might still be an error prejudicial to the defendant. But the instruction given by the judge accords with how this circuit has read the statutory term “cocaine base,” so there was no error in the instruction or in the verdict confirming that the drug was cocaine base within the meaning of the statute.
Given the background supplied by
United States v. Robinson,
DePierre, like others before him, argues that the statute although referring explicitly to “cocaine base” should be judicially restricted to only the specific form of cocaine base known as crack, which (admittedly) was the main focus of Congress’ concern. As it happens, some evidence indicates the substance here was crack and at sentencing the judge repeatedly referred to it as crack; but to rely on that would needlessly raise an evidentiary issue that DePierre contests and also raise doubts about the continued vitality of binding circuit precedent as to the meaning of the statute.
This circuit (along with a number of others) has read the statute according to its terms and held that “cocaine base”
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refers to “all forms of cocaine base, including but not limited to crack cocaine.”
United States v. Anderson,
DePierre says that
Kimbrough v. United States,
Kimbrough
does also say that the statutory mandatory mínimums under 21 U.S.C. § 841 that are аt issue here apply to crack,
Affirmed.
Notes
. See generally Office of National Drug Control Policy, Street Terms: Drugs and the Drug Trade, Crack Cocaine, http://www.whitehouse drugрolicy.gov/streetterms/ByType.aspPint TypelD =2 (last visited February 25, 2010) (listing “cookies” as a slang term for crack cocaine).
. Adding to the confusion, this circuit uses the phrases "sentencing factor manipulation” and "sentencing entrapment” interchangeably,
United States v. Jaca-Nazario,
. Circuits limiting "cocaine base” to only crack (or to crack and other types of smokable cocaine base) include
United States v. Higgins,
. In this circuit, see
United States v. Medina,