*1 (10th Cir.2003) man, 318 F.3d cases).
(same, citing comply fails to
“If the district court 32(i)(3)(B), for the we must remand
Rule necessary find- make the
court to either that it did not a declaration
ings or enter into account matters
take the controverted sentencing the defendant.” United Cereceres-Zavala,
States v. (10th Cir.2007). For these rea-
1213-14
sons, to REMAND this compelled we are
ease, district court to resolve directing the explain raised or disputes
the factual West pur- unnecessary sentencing
why it is court do so.18 If the district
poses to did not the Government
determines by a disputed preponder- facts
prove evidence, the district court
ance sentencing pro- a new then conduct
should un- disputed and
ceeding, excluding those allegations.
proven factual
III. Conclusion district court to REMAND for the
We with this proceedings consistent
conduct
decision. America,
UNITED STATES
Plaintiff-Appellee, FORD, Taran Defendant-
Stan
Appellant.
No. 07-1176. Appeals, States Court of
United
Tenth Circuit. 11, 2008.
Dec. advisory guideline range, we do not argues on low the the extent that West also 18. To argument dis- appeal the district court abused its here. need to address impose refusing a sentence be- cretion in *2 produce failed to alleged the government him and the multiple emails sent between informant. The district court found *3 existed, emails but de- three undisclosed motion to set post-trial nied a aside conviction, these emails concluding affected the outcome would not have the district court agree trial. We with presented all light that in the evidence trial, sufficiently the emails were not jury’s ver- to cast doubt on the material dict. jurisdiction pursuant
Having § AFFIRM the district U.S.C. judgment. court’s Background I. Background Factual Task Force Joint Terrorism Colorado’s (JTTF)1 tipa in late 2003 from obtained Wichlens, Pub- Assistant Federal Jill M. Jimmy Hee that Ford co-worker Ford’s Moore, P. Federal (Raymond lic Defender weapons in and trafficking automatic was briefs) Defender, with her Public activity. engaging suspicious other in Defender, Public of the Federal Office a Denver According tip, Denver, CO. illegal fully-automatic firefighter, owned Vogt, A. Assistant United Andrew attempting procure firearms and Eid, (Troy A. United Attorney, States equip- military communications sensitive brief) Attorney, him on with States allegedly asked Hee also ment. Ford Attorney, Den- Office of the United States conference Colorado a NATO about ver, CO. Secretary visit Springs planned and a to Fort Rumsfeld of Defense Donald GORSUCH, TYMKOVICH, Before Carson. PARKER, and Judges, Senior Circuit Judge.* District investigation, the part of their JTTF As work an Heavilin to as recruited Keith TYMKOVICH, Judge. Circuit previously informant. had Heavilin other in several informant for ille- worked an Ford was convicted Stan Taran working on Prior to investigations. JTTF selling possessing gally case, had also served in was en- defense at trial primary em- convicted, twenty-one years military for Ford After he was trapment. * agencies Parker, in- enforcement and local law Senior District Hon. A. U.S. James Mexico, sitting involving Judge, vestigate international District of New crimes Court by designation. domestic terrorism. task force is a law enforcement 1. The JTTF state, federal, and other comprised of the FBI
ployed by security agreed division of the U.S. prose- recheck its records. The Energy years. for sixteen Department of cution provide did not Ford additional prior to emails trial. February up Heavilin struck at a conversation with Ford show Entrapment at Trial Defense Denver, where Ford was exhibitor. Heavilin to be a perceived Ford soon deny At did he sold half, year the next and a friend. Over guns. Heavilin the three machine Instead they contacts each had over 100 other argued entrapped by he had been phone, person. via government. *4 time, During this Ford sold Heavilin defense, In support of the entrapment The first guns. three machine transaction argued continuously Ford Heavilin pres- 22, 2005, April occurred on when Ford sold sured him over a long period of time to gun. Heavilin a Sten machine The next acquire and guns— sell the three machine later, transaction occurred several months crimes unwilling Ford was otherwise 2, 2005, August on when Ford sold Heavi- particular, commit. In Ford’s counsel lin gun. Finally, a H & K machine on highlighted the substantial number con- 21, 2005, Heavilin November Ford sold a tacts Heavilin initiated with Ford. The at- fully gun.2 automatic AR-15 machine torney summarized these contacts in a Proceedings Pretrial spreadsheet presented jury, to the and charged Ford was with three counts of repeatedly during referred to them trial. knowingly transferring or possessing a example, For in closing argument his gun, machine violation of 18 U.S.C. counsel stated the following: 922(o).3 § The three counts were based 22, 2, April August on the and November seen, you This is the exhibit that 21 machine sales. least page, you the first have seen it a trial, Before Ford filed a motion to ob- lot. you But what need to on focus for government’s tain the pursuant case files a minute is the sheer number con- to Brady Maryland 373 U.S. by tacts initiated Keith Heavilin.... (1963). S.Ct. During L.Ed.2d 215 And what is he calling all of these times motion, hearing a on specifically this Ford to do? calling He is all of these times to requested any emails between Heavilin persuade talk selling a man into him and himself. Ford did not have access to him, no, who I told don’t sell the emails because the seized automatic weapons, thought you I were computer his when he was arrested. Al- talking about a weapon, semiautomatic though produced several call, can’t help you. That is call emails, Ford told the court he believed after meeting meeting, purpose one existed, more emails and this evidence after only; you to make him think are a support would his govern- defense. The friend, responded persuade ment and to by stating it was not or talk him into emails, aware of additional you but selling weapon. automatic record, parties and witnesses also serial number in violation of 18 U.S.C. weapon Olympic refer to 922(k). as an Arms § charge This is not relevant to the present appeal; jury acquitted him on this count. 3. He was also indicted on one count of know- ingly possessing a firearm with an obliterated added). Then, April between the times. (emphasis R., at 1832-33 Vol. XV transactions, they communicated August exhibit is a “This explained, counsel As twenty-five Finally, Id. at 1835. times. be- entrapment.” another roadmap for August 2 and November tween Chronology sales, nineteen times. they communicated prosecution both During these communications were Most of the substantial highlighted and the defense they person met telephone, although and Heavilin. interactions between times and sent seventeen emails. thirteen February they time first met From the arrest, chronology describing following is 7, 2004, of Ford’s to the time interactions that occurred after second by phone, email or two communicated The bold text reflects information Up times. sale.4 one hundred person over missing emails. The re- contained April sale on first machine maining on the trial record. fifty-nine text based and Ford communicated Heavilin Ford emails Heavilin. 8/14/2005 him hours later. Ford tells Ford calls back seven calls
9/21/2005 *5 something gun related to the show. Ford worried about Heavilin he is percent, I haven’t played by “I the rules a hundred repeatedly tells Heavilin R., IX at 165.5 anything wrong.” done a third missing emails Ford and asks him about Unspecified email: Heavilin First gun. machine time before 10/5/2005 following reply to Heavilin6: Ford sends the
10/5/2005 you good. I’ll call out of town. Social sounds returned from Just couple days. any good computer7 something up next Not over set keep rising I think costs are to blame. Just right out there now. deals a watching big store ad’s sale. [sic] couple days. to call in the next Should be able Addendum, 16; 1. I, Aplt. Exhibit R., see also Vol. Doc. 179 calls Ford. Heavilin 10/13/2005 day. times on the same calls Ford three
10/17/2005 They to meet at the him back. decide and Heavilin calls Ford calls Heavilin 10/18/2005 Ford the second Lounge. Lounge, Heavilin tells Rocky Flats At the much kick and he wanted smaller purchased had too machine he money like the machine explains has the and would gun. He caliber 5, government state the text Ford and the August October 6. Both 4. the dates October For jury, but do was available to of this email only information and October to show where not cite to the trial record was the existence available par- Instead the or admitted. was discussed does not contain The trial record contacts. submitted merely an exhibit Ford ties cite regarding said or writ- what was information R., See Vol. motion for a new trial. with his ten. I, 179 at 16. recording Additionally, a of the conversa- 5. code Computer Ford and Heavilin’s played at trial. tion gun. word for machine responds by saying being in two weeks. Ford he has not heard of anything available, something might up but come around Christmas because someone
might be in need of cash. missing Unspecified email: Heavilin him Second emails Ford asks to locate and time him a third machine between sell 10/18/2005 10/28/2005 missing following reply Third email: Ford sends to Heavilin’s
10/28/2005 email: nothing expect special computer at this time. I don’t to find a aon good [sic]. this close to Christmas Too much demand for a sale. keep watching newspaper watching. [sic]. Just ad’s am still R., I, Doc. Yol. Addendum, Aplt. Heavilin calls Ford and asks him “what’s the word.”
11/17/2005 replies nothing Exhibit 2. Ford is available. Heavilin tells Ford he prefers knows someone in Springs Colorado but to deal with Ford. suggests person Springs. he ask the in Colorado Heavilin tells Ford keep anything touch and let him if know becomes available. Ford calls Heavilin twice. Heavilin tells Ford that he will call him back. 11/19/2005 later, Twenty says minutes Heavilin calls and Ford became available. *6 calls Ford and Ford him Heavilin calls back. Heavilin meets Ford at a
11/21/2005 predetermined gives decoy gun. location and Ford him a Once Ford is sure transaction, police monitoring that are they again no meet at a different gives $5,400 location. Ford exchange Heavilin the machine cash. completed subject After Ford and Heavilin government he was [to] en- transaction, last law enforcement officers trapment fully when he sold auto- early day. arrested Ford the next R., I, matic weapon to [Heavilin].” ¶ Doc. 173 at 2. jury’s The verdict was split acquitting — April August Ford on the 2 trans- government responded by stating it convicting actions and him based on the any was not aware of undisclosed emails. weapon possessed sold or on November The district court agreed to hold an evi- dentiary hearing regarding the matter. Proceedings
Post-trial Prior to the hearing, Ford served a sub- poena Yahoo, provider, Heavilin’s email subsequently Ford a filed motion for a to determine new whether alleging undisclosed violated emails could be Brady by withholding recovered. Yahoo discov- evidence material entrapment single his In ered a email. particular, previously defense. he This un- alleged by withheld disclosed email was sent emails Ford to Heavi- by sent Heavilin lin exculpatory email, “that were on October In the they provided would have “computer” documenta- Ford tells Heavilin no was cur- ry evidence to support rently assertion [Ford’s] available for sale.8 supra 8. note 7. II. Discussion explained hearing, Heavilin
During from an email he received that when of the The Due Process Clause Estep Estep. it to Donald he forwarded requires prosecution Fifth Amendment sheriff and County deputy was a Jefferson that favors the disclose all evidence investiga- the JTTF with he assisted guilt either to and “is material defendant email, Heavilin After forwarded tion. v. Rob States punishment.” or to United account. it from his Yahoo deleted he then (10th Cir.1994) inson, 1115, 1118 39 F.3d missing October regards to With Brady, 373 U.S. S.Ct. (quoting out of email, Estep was explained Heavilin 1194). investigators duty This extends arrived; Estep this email the office when assisting prosecution. See United attending on vacation was either (10th Velarde, 553, 559 v. F.3d States placed the email Heavilin classes. .2007). Cir Presum- his Yahoo account. box of hold the email to forward ably, planned he may base Accordingly, a defendant Heavi- to work. when he returned Estep alleged investigator’s claim on an Brady a forgot about nonetheless lin he testified evidence, even failure to disclose material it. He and never forwarded the email did not know of the prosecutor when the message this email was the believed a alleging Ford is Id. Because evidence. Estep.9 to send to forgot violation, de novo the Brady review presented at the evidence reviewing motion for a of his district court’s denial court nonetheless the district hearing, (citing States trial. Id. United new emails existed. two additional concluded Pearl, 1210, 1215 Cir. by sent email would have been The first 2003)). 5. In prior to October sometime Heavilin court concluded A who seeks new defendant him a third machine to sell Brady
asked violation alleged on an trial based sent sometime The second email was preponderance ev must show 28, and 18 and October “(1) October between sup prosecution idence *7 response. likely Ford’s October spurred (2) evidence, the evidence pressed again concluded the court (3) In this defendant, and to the favorable to sell him a asked Ford that Heavilin (quot at 558 Id. evidence was material.” Quintanilla, v. ing United States Cir.1999)). (10th 1139, n. 10 1149 & F.3d concluded court though Even district material, be there the evidence to For emails, the three withheld government probability must be “a reasonable occurred. Brady no violation decided court have been would result of trial were emails concluded the undisclosed It documents suppressed if the different num- merely cumulative to substantial to the defense.” disclosed had been Ford and other contacts ber between 263, 289, Greene, 527 U.S. v. Strickler made a differ- would not Heavilin and (1999) 1936, 144 L.Ed.2d 119 S.Ct. The court presented if trial. ence omitted). (internal ques “The quotation new denied Ford’s motion therefore would the defendant is not whether tion trial. computer timely hard argument make access government agreed at oral 9. The preservation government to an held after arrested entrusting drives improper procedure. That error informant Ford. by the failure to compounded in this case likely illegal more than not have received a dif- activity for which he has been evidence, i.e., ferent verdict with the charged, but ready willing that he is whether in its absence he received a fair to commit the crime.” Id. resulting understood as a trial in a if Even a defendant was entrapped worthy Kyles
verdict
of confidence.”
transaction,
one
automatically
we do not
419, 434,
Whitley, 514 U.S.
115 S.Ct.
subsequent
assume all
transactions be-
(1995).
1555,
defendant entrapped, was not both “ele close Favorable Evidence required entrapment.” ments to find [are] United v. Young, States 954 F.2d violation, To establish a Brady (10th Cir.1992). While two “[t]he elements the defendant must first govern show the entrapment closely are related and often ment failed to disclose favorable evidence. arguments same evidence and will The defendant does not have to establish id., speak elements,” to both if the govern bad faith.10 United States v. Hernandez ment disproves either element then the -Muniz, 1010-11 Cir. entrapment defense will fail. 1999). element, gov Under the first ernment induces the defendant when it Early OctoberEmail engages in “conduct which creates a sub The existence of missing the first email stantial risk that undisposed person *8 is based on responsive a email Ford sent law-abiding otherwise citizen would com 5, on email, October 2005. In this Ford
mit the
Nguyen,
offense.”
413 F.3d at
stated the following:
“Simple
1178.
evidence that a government
agent solicited, requested,
approached
Just returned from out of town. So-
engage
defendant to
in criminal con
cial
good.
you
sounds
I’ll call
and set
duct,
alone,
standing
is insufficient to con
something up
couple
over next
days.
(internal
stitute inducement.” Id.
quota
any good
Not
computer deals out there
omitted).
tion marks
Under the second
right now.
I think rising costs are to
element, predisposition
if
exists
the defen
blame.
keep
Just
watching
big
dant has an
engage
“inclination to
store ad’s
for a sale.
[sic]
record,
10. On
points
this
no one
by
government.
to bad faith
reason Ford commit-
persistence was the
in the next
to call
be able
Should
crime.
ted the
days.
couple of
The district
I,
179 at 16.
R.,
Doc.
Vol.
Not
The Undisclosed Emails Were
B.
Ford
from this text
concluded
court
Material
sent
previously
email
to an
replying
material,
to be
For the evidence
any more machine
asking if
by Heavilin
probability
“a reasonable
there must be
The existence
were available.
guns
would have been
that the result of the trial
transcript of
by the
is also reinforced
email
had
suppressed
if the
documents
different
18,
telephone conversation
an October
Strickler,
to the defense.”
been disclosed
con-
In this
Ford and Heavilin.
between
(1999)
289, 119
at
S.Ct.
U.S.
versation,
he had earlier
indicated
Heavilin
omitted).
(internal
re
quotation
When
pur-
message about
Ford an email
sent
Brady purposes,
viewing materiality for
machine
chasing a third
Supreme
mindful of the
Court’s
we are
why I
kind of
“And that’s
told
“ample,
not to look for
inde
admonition
R.,
me a clue.”
Vol.
give
and said
emailed
guilt”
or “evidence
pendent evidence
I,
at
Doc. 196
[jury’s] findings.”
support
sufficient to
properly conclud-
district court also
Strickler,
290,
Ford’s entrapment defense re Heavilin told Ford another dealer was quired jury if determine Ford was available, pressure procure Ford to predisposed possessing towards or trans a third machine had been substantially ferring weapon question. “The de reduced. But relieved, instead of acting fendant’s lack of predisposition [] Ford complete decided to the sale. crux entrapment defense.” United called Fadel, days Heavilin two States v. later and told him 844 F.2d Cir.1988). third machine Predisposition is the Because “defen found dant’s inclination Ford reinitiated engage contact with illegal Heavilin af- activity discussion, for which he has ter charged.” been November 17 when Ortiz, 1161, 1165 United States v. Ford was told Heavilin buy could the ma- (10th Cir.1986). Predisposition may ki gun elsewhere, be chine phone call sug- record, We note the could have concluded the entire considered all of the evidence— early existence of the October email because including every portion high- of the record it in the mentioned October 18 con lighted by the dissent—not in isolation but versation, which the recording heard a a whole. We focus on the cited evidence in supra of. See Part II .A. large part because supports this evidence our jury's confidence that worthy verdict is Although the dissent contends we short- confidence. changed some of the evidence offered defense, we have conducted a review of the *10 at 1002-03 Mendoza-Salgado, F.2d willing to en- ready and was Ford gests for that the defendant’s desire (explaining in the illicit transaction. gage supports an illicit transaction profit from completing the on Ford insisted Second. predisposed to that he was an inference re- Heavilin despite transaction third crime). committing the to. not need him he did telling peatedly be- 18, 2005, The nature of the contacts Fourth. they met on October When and the third sale tween the first two sales sale, told Ford Heavilin discussed another By the time third sale up significant. is the decisions to leave the “going he is however, occurred, entrap- any previous ex- R., X at 6. Heavilin him.” to government influence exerted referring ping the that he was at trial plained In contrast to the first safely had dissipated. do it is able to [Ford] “whether the that Ford two sales where found any complica- in trouble or getting without fewer were made entrapped, to was contacts If he doesn’t part.... want tions on his jury did third sale where the the it, Id. Later before out of it.” get do agree with entrapment. And conversation, told not find Heavilin also October the of court that substance safe, the district it.” Id. “if it isn’t screw Ford 5 email he was re- Ford’s October shows sales, they when prior unlike the And request gun, Heavilin’s for sponding to money exchange on met for the argue allowing convincingly Ford to thus initially gave Heavilin Ford November idea of the initiated the the did the sale gun. When decoy The additional email contacts third sale. of appearance immediate not result the substan- for the sale would officers, Heavi- Ford told law enforcement jury. picture before tially changed fake; actually a that the lin produced evi- not moni- The sure were police to make wanted Fifth. fully indicating possessed Ford told dence Heavilin then the transaction. toring AR-15, Heavilin long before automatic complete he did not need Ford on the third buy prevail it. To insist- asked to if Ford he was worried. transaction entrapment de- sale, and overcome complete the sale they go ahead and ed needed fense, government only location, gave at a second met Heavilin trans- or knowingly possessed plan- prove Ford Ford’s careful gun. the real Heavilin 18 U.S.C. weapon. See ferred this finalizing and his insistence ning 922(o); Jury No. § also Instruction ar- see prosecution’s supports transaction (“Defendant 3 of the in Count charged toward predisposed gument that Ford of 18 U.S.C. with a violation Indictment committing crime. to know- 922(o), makes it a crime § which for the first shows Third. a ma- knowingly possess ingly transfer make a “de- he would thought time Ford AR-15 fully gun.”). If the automatic chine a machine selling profit cent” from before Ford’s collection part of had been testified, first “was the third sale As he it, then procure him to Heavilin asked make a decent actually going to one I was could find Ford be free to jury would R., at 37. Ford Vol. XIV profit on.” already ille- entrapped; he not have been $5,000 dealer pay his agreed regardless weapon, possessed gally $5,400. This charged and then transfer. the eventual sug- the third transaction testimony about Hee testified Ford’s co-worker com- predisposed toward Ford was gests cabin owned them visited a sale, if in- 2003 two even he was pleting last fully automatic brought the by Ford. previous two. duced to commit *11 cabin, they AR-15 to the took turns there is not a probability reasonable shooting targets. it at Hee also testified the three undisclosed emails would have visiting that while he was Ford’s house changed the outcome of the trial. May again Ford him showed gun
AR-15. Hee insisted the shot May 2003 and saw Ford’s residence in Ford makes three nonetheless argu- weapon was the same Ford sold to supporting ments his claim that the case Heavilin on November 2005.13 one, was a close and therefore any addi- addition, In investigators two who inter- tional entrapment evidence of might have viewed Ford after he was arrested also made a difference. testified that Ford pos- admitted he had sessed the AR-15 an period extended (1) points Ford first to the contents of time, of selling before it to Heavilin. De- the emails. He contends the emails are Gallegos tective William said Ford told material to his entrapment defense be- him he had owned weapon and had (a) they cause show that the idea for the previously it. Similarly, agent fired FBI gun third Heavilin, transaction came from Brian Schmitt testified Ford had admitted (b) Ford was reluctant to sell Heavilin the that he had weapon owned the for a long (c) gun, and Heavilin repeatedly urged him time. to commit the disagree, crime. We conclude the Tarvin, contents of
Rick an the emails are not acquaintance material. also testified that he had never sold Ford AR-15 or gun. machine other This First, argues Ford that the might evidence significant because Ford claims have misinterpreted the October Tarvin him part sold gun the machine email as suggesting the idea for the third just days a few before he weap- resold the sale originated from Ford. argu- As the on to Heavilin. ment goes, pre-October 5 email is ma- statement, In closing its terial because it would have definitively repeatedly emphasized this evidence indi- shown the idea for the third sale came cating Ford had illegally possessed the from Heavilin. But never used the long AR-15 before Heavilin asked him to October 5 email to cross-examine Heavilin procure weapon. sure, To be Ford’s or to establish that he responding counsel contested testimony this one of Heavilin’s requests (by earlier email statement, closing arguing all gov- of the phone) gun. for a In light, this it is ernment’s witnesses were not credible on place great hard to weight on the exact point. wording of the parties email since the did light strong evidence under- not do so at trial. We thus agree with the mining entrapment defense for the district court that the content of this un- transaction, November 21 we conclude disclosed email material to Ford’s 13. The highlights dissent liow Hee testified possession supporting for the third May that in 2005 he saw both the third ma- gun identical, machine materially was not chine gun, and the second machine testimony Hee's longer showed he had both plainly thus the "was free not to [con- significant and more contact with the third vict]” for the second transaction on account possess Hee not saw Ford evidence, reasons, of this and thus the dissent prior the third years two to the transac- "materially identical” evidence as to the tion, he also fired the third in full auto- support transaction also would not en- matic mode. However, trapment. Dissent at n. 9. *12 Order, Thus, with the agree 11. at jury could the because defense entrapment government that the court while and district raised that “Heavilin only conclude there was no that may have “contended machine subject of a third the discussed impe- and the idea entrapment because argue [ ] “to Ford positioned and thus gun” came from illegal weapon the third tus for impetus that the at trial idea he did as defendant,” agree also at we Order Heavilin’s.” Dist. machine a third pre-October that the event, district court the with the in 14. And at Dist. Order instead, material, is but email “is not trans 5 for the third of the idea origination at 14.15 Id. largely cumulative.” pre the overall of dispositive is not action assuming the Even question. disposition Furthermore, of evi- jury the also heard regard Ford approached first government 5 after the October communication dence the sale, still rebut it could a third ing the last transaction indicating the idea for of evidence by other entrapment defense heard raised Heavilin. United generally predisposition. conversa- of an October the audio Mendoza-Salgado, States tion, Ford he would in which Heavilin tells Cir.1992). 1002-03 In gun.16 machine purchase a third like cross-examination, he Heavilin admitted not re- so, did government the Even in weapon of the the discussion that initiated to conclude urge peatedly counsel meeting. Defense third the October 18 for the the idea originated Ford at Heavilin, you [Ford] “And tell asked 5 email. in the October transaction weapon a to have your desire point about arguments, the closing in example, its For money you got how weapon third the idea for suggested never government time, respond- right?” Heavilin ready this with Ford originated third transaction sum, In “Yes, R., X at ed, 74.17 Also, sir.” the absence than Heavilin.14 rather not does is material and the email not prevent 5 email pre-October did jury’s our confidence undermine idea for arguing Ford from predisposed Heavilin, that Ford was conclusion originated with third transaction the crime. Dist. commit pursue, in fact he did argument an might affected the outcome mail in reference made brief 14. The at Dist. Order trial.” suggested may have which opening statement sale. the third the idea for that Ford initiated conversation, briefly also Heavilin 16. In R., fleeting suggestion at 170. That Vol. VIII to Ford previously sent references email closing argument, and we was not raised available, gun was asking if third govern- clear reference see no other prior been jury would have aware so the argument during let pursuing the ment I, R., at Vol. Doc. email traffic. See repeated suggestion. alone a suggests idea for the evidence further This originated with Heavilin. transfer government's highlighting clarify, 15. To initiating cross-examination, on Ford emphasis trial lack of the dis- light of this 17. In transaction, district impugn the does not third examina- of Heavilin's direct citation sent's findings. n. 4. We are Dissent at 997 court's October conversation tion about the (al- argue government did agreement: "repeatedly ar- that the evidence the transac- insti- briefly) proved Ford that Ford initiated Mr. gued beit that the sale,” tion, initi- repeatedly about a gated claimed discussions transaction, Octo- pre-October overly generous. The ated the thus Dissent favorable, show, and was not did not but not have been ber discussion email would show, court, the third We, Ford initiated argued to "cannot like the district material. missing e- sale. say that admission of Heavilin's reject argument Moreover, We also that the nothing in the suggests record provided undisclosed October 28 email ma- aggressively Heavilin had more asked terial evidence showing he was reluctant to Ford about the machine guns pre- sell Heavilin the third machine pre-October October 5 and 28 emails com- Ford tells Heavilin that no pared to the communications before the *13 weapons currently were available. Ford’s jury.18 claims about importance the of this evi- sum, In we conclude the contents of the persuasive dence are not because the con- undisclosed sufficiently emails were not tent largely of the email was cumulative. material to cast doubt on jury’s the ver- trial,
At
Ford
present
was able to
unrebut-
dict.19
ted evidence showing that on October 18
(2)
and November 17
Second,
he told Heavilin that no
emphasizes
Ford
the
guns
machine
currently
jury
were
available.
acquitted
sales,
him of the first two
suggesting the evidence supporting his
A
email,
close look at the October 28
conviction on the third count
weak.
was
furthermore,
support
shows
weak
for
But as
already
we have
explained, substan-
Ford’s claim that he was
pro-
reluctant to
tially different circumstances existed be-
weapon.
cure the
In the
Ford said
tween the November 21 sale and
prior
the
currently
procure
was
unable to
two
Acquittal
sales.
on the first
two
machine
He did not
suggest
state or
counts, therefore, does not imply that the
fact,
he was unwilling.
In
Ford tells
supporting
evidence
the third count was
Heavilin that he
watching”
is “still
for an
weak.
Nguyen,
to the a blood almost Defendant considered to entrapment defense Defendant’s to the firemen. they both were because brother verdict jury’s confidence undermine De- 2003, because grew Hee concerned the con- This affirms on guilty of Count changed and demeanor fendant’s behavior judge personally who clusion of trial became 11 and September Defendant after jury of presentation observed the coun- worried about “paranoid” com- than one hundred of more 225; X at R. security. See Vol. try’s agent undercover munications between a list of gave Hee Defendant XI at 9. Ford. and Defendant Keith Heavilin “nomenclature” with military equipment Judge emphasize to in concurrence write ac- not “have people” should “regular that concluding reason for fifth Tymkovich’s of suspicious causing Hee to to” be cess jury presented the evidence that X at R. Vol. activities. See Defendant’s Defen- convincingly demonstrated when heightened Hee’s worries 226-227. the ille- possess predisposed was dant they “if were find wanted to out Defendant AR-15 Olympic fully automatic Arms gal, law and disarm marshal going declare (“AR-15”) which was machine The list of X at 228. ...” R. Vol. us subject of Count had that Defendant military equipment enough to made Hee nervous noted, given Hee Judge Count Tymkovich As action, Defendant but because 18 take violating charged Defendant not want did friend Hee 922(o) good Hee’s transferring by knowingly § U.S.C. trouble, of con- instead get Defendant gun. knowingly possessing a machine taeting police reported the local Hee De- In jury instruction number the trial firefighter fendant’s list to another who judge carefully jury instructed the affiliated with law enforcement Defendant was charged Count 3 with a through arson services. investigation 922(o), § violation of 18 U.S.C. which makes it a knowingly crime to transfer or Eventually the Federal Bureau of Inves- knowingly possess gun; a machine (“FBI”) tigation contacted Hee who told prove beyond must a rea- the FBI about weapons, Defendant’s which sonable doubt knowingly Defendant placed were February a list dated knowingly possessed transferred or (Govern- 2004 that jury was shown to the AR-15; and that Defendant knew the fire- 64). ment’s Exhibit The list included the possessed arm he transferred or awas Significantly, AR-15. the list bears a date judge then instructed February days 2004—two before un- that if the proved the agent dercover Heavilin first contacted beyond essential elements a reasonable Defendant on February 2004. This doc- doubt, find should Defendant umentary evidence corroborates Hee’s tes- guilty knowingly transferring or know- timony that possessed Defendant had ingly possessing a machine AR-15 before first Defendant met Heavilin *15 charged in Count 3 that if any but essen- who, therefore, could not have entrapped tial element was not proven beyond a rea- by Defendant inducing Defendant gain doubt, sonable jury then the should find possession of the AR-15. guilty defendant not knowingly of transfer- Further corroboration of Mr. Hee’s tes- knowingly ring possessing or a machine timony was provided by two law enforce- gun charged as in 3. Count ment witnesses. Gallegos, William a de- In a separate verdict form pertaining to tective in the Intelligence Bureau of the Count repeated trial judge the alter- Denver Police Department, interviewed grounds native for conviction: interview, Defendant. During the De- fendant said that the AR-15 was “a weap- on he had had for some See R. ...” time “VERDICT FORM —COUNT 3
Vol. XI at addition, Defendant We, jury, oaths, on our unani- admitted to Detective Gallegos that Defen- mously defendant, find STAN TARAN dant had fired the point AR-15 “at some in FORD, as to the crime of knowingly time.” See R. Vol. XI at 147. transferring knowingly possessing a Schmitt, Brian special a agent with the gun, charged as in Count 3 of FBI, also interviewed the Defendant. Indictment, the essential elements of Agent Schmitt testified the Defendant told which are set forth Instruction No. him “he had had weapon this for a long 17: time. It inwas two pieces. If the two Guilty Not pieces put together, were it would fully fire automatic, and that had shot weap- Guilty” X on on several occasions.” See Vol. XI R. Agent Schmitt further testified (Emphasis supplied).
that Defendant
“made
comment to the
extent that he knew
wrong
it was
The Supreme
Court of the United
it, he
it,
knew it
wrong
States,
to sell
but he
in a case where there were alterna-
it anyway.”
did
R.
Vol. XI at 190.
tive statutory grounds
verdict,
guilty
for a
attempted
of
extortion
jury
fendant convicted
general
held that “a
unanimously1
threat
wrongful use of actual or
legally
either
long
it was
so
was valid
verdict
fear,
right),
of official
submitted
or under color
of the
ened
on one
supportable
(10th
gave no assur-
154 F.3d
alleging
verdict on count
general
holding
dissenting.
GORSUCH,
Judge,
Circuit
and crack
distribute cocaine
conspiracy
had no
Ford,
firefighter,
Denver
Stan
a
supported
though evidence
cocaine even
known involvement
and no
cocaine);
criminal record
United
crack
only
distribution
Cir.1994)
until an undercover
(10th
firearms
illegal
with
Linn,
F.3d 987
v.
31
States
Heavilin, ap-
agent, Keith
alleg-
verdict on count
general
(upholding
solic-
repeatedly
Ford and
arson,
Mr.
proached
mail
to commit
ing conspiracy
illegal
procuring
in
ited his assistance
fraud,
laundering
fraud,
money
and
wire
obtained
Eventually, Mr. Ford
weapons.
all
support
did
though
even
to Mr.
and sold them
weapons
theories).
v.
three such
in
States
Recently,
United
trial,
Mr.
jury acquitted
(10th Cir.2008),
At
the
Heavilin.
this
after the
point
justice
whatev- ment wins its
when
is done
suggested,
er else the evidence at trial
2,
its courts.” Id. at 88 n.
email appears to answer why
jury
firm his account. R.
XIII
at 101-102.
convicted Mr. Ford on count 3 even after
government
The
responded in
closing
its
acquitting him on counts 1 and 2.
carry
To
by
rebuttal argument
suggesting
Mr.
that
its
showing
burden of
Mr. Ford was not
credibility
Ford’s
should be
discounted
government
entrapped,
had to estab-
jury
because—in contradiction to Mr.
lish
of
things
(1)
one
three
the idea for Ford’s testimony
—
defense has access
—“the
transaction did not originate
to the same
govern-
information that the
(2)
with government agents;
govern-
ment does.” R. Vol.
atXV 194. We now
agents
ment
persuade
did not
or talk Mr.
government
know the
wrongly attacked
(3)
crime;
Ford into committing the
or Mr. Mr.
credibility
and did so based on
predisposed
Ford was
to commit
evidentiary
omission for which it bears
Jury
crime. See
Instruction
22. With
No.
responsibility.
the exception
email,
of
pre-October
Finally, we must be mindful
that
and quality
nature
of the evidence the
might
“[w]hat
be
insignificant
considered
government relied
carry
on to
its burden
strong
might
case
suffice to
under these elements was materially iden-
disturb an already questionable verdict.”
tical
all
across
three counts.
only
It was
Robinson,
1115,
United
v.
States
on
only by
count
sup-
virtue of its
(10th Cir.1994);
see also
pression
United
pre-October
email,
of the
States
97, 113,
Agurs,
U.S.
96 S.Ct.
plausibly
could
suggest
(1976)
995 in say promise fulfilled cannot testify to how narrow circumstances These case. this on count 3 jury’s the conviction a thread struggled the how hard depended, this Underscoring my conviction on case, thus how cautious and with this score, has cited to us no government suppressed that the in suggesting must be the face of so affirming case a conviction in email was immaterial. many converging to call its reliabil- factors my question. Neither have col- ity into foregoing all the of the confluence Given Meanwhile, any. our circuit leagues cited circumstances, help I cannot but conclude for new trials in and others have reversed 3 is guilty verdict count jury’s that the (and argu- even sometimes highly similar legal our confidence of worthy of the not troubling) ably less circumstances —includ- say not to Mr. This is system. where, here, suppressed evi- ing say that he But it is to surely innocent. is on the central importantly “b[ore] dence trial, one in which a new surely deserves trial”; attacked the prosecutor at issue to, use right to make access and he has credibility testifying for about defendant’s of, govern- exculpatory evidence withheld; government improperly facts of promise The central possesses. ment jury “evidently struggled]” with and the a trial based justice system is our criminal Gil, v. 297 F.3d the case. United States evidence, competent and on all available (2d Cir.2002); 93, Kyles, also 103-04 see government’s on the best one based not 453-54, (finding 115 S.Ct. U.S. us, hang- before The conviction evidence. reversing for new trial materiality and dependent of threads and ing on the barest could have suppressed evidence where evidence, exculpatory is omission of on the undermining the credibili- part, gone, rudimentary de- “inconsistent with prosecution); ty key witnesses for the of Brady, 373 U.S. at justice.” mands (10th Mullin, 303 F.3d Scott v. (internal marks quotation 83 S.Ct. Cir.2002) materiality and revers- (finding omitted). government with- ing for new trial where govern- it matter that Neither does assisted the that could have held evidence Brady to fulfill its obli- ment’s failure undermining for witnesses defense apparently the case was gations Gibson, v. Nuckols prosecution); Cir.2000) than oversight (10th (same); rather deliberate result 1261, 1266-67 Brady principle animating mischief. The F.2d Minsky, 963 United States system is the legal Cir.1992) (same). of our promise and the no I basis see the ac- unfair trial “avoidance of an contrary here. reaching a result It is Id. 83 S.Ct. cused.” tradition that legal our
foundational II guilty when the “[sjociety wins sug- are my colleagues when criminal trials are convicted but fair; administration of about the system of the not be worried gest our we need Though govern- accused treated justice suffers of this trial. when fairness walls of inscription pre-October An on the unfairly. suppressed ment favorable prop- though it was evidence Department of Justice states my col- federal domain: for the Mr. candidly osition be that the email should suggest point leagues wins its whenever ‘The United States ” con- careful “immaterial.” After deemed citizens courts.’ justice is done its they arguments of each 87-88, Regrettably, sideration Id. at 83 S.Ct. *20 conclusion, I am unable to ply way advance for this no to divine that parties’ earli- agree. er exculpatory communication was in na-
ture, showing that Mr. Heavilin initiated
A
gun
the idea for a third
sale.
government argues
pre-
The
that
Notably,
ultimately con-
email,
tendency
October 5
in its
to show
much,
cedes as
admitting that “the content
Mr. Heavilin
initiator of
as the
the third
message
[Mr.] Heavilin’s omitted
is un-
sale,
merely
“cumulative” of exist- known,” and, indeed,
jury
that the
could
ing
argument depends
evidence. But this
thought
well have
that
pre-October
on a
misconception
quali-
the term. To
email
suggestion by
contained
“a
fy
cumulative,
question
the evidence in
Heavilin that the
[Mr.]
two men meet so-
sup-
must be
evidence that
“[additional
cially,” given
penchant
“[Mr.] Heavilin’s
ports a
by existing
fact established
evi-
for beginning his communications with De-
(8th
dence.”
Dictionary
Black’s Law
fendant
specifically mentioning
without
his
ed.)
added).
(emphasis
“sug-
The term
desire for a
gun.”
Id. at
5-6.
gests
redundancy, especially
a needless
circumstances,
these
pre-October
where the additional evidence will result in email can hardly
fairly
be
characterized as
delay’
‘undue
or ‘waste of time.’ Redun-
a waste of time.
It alone demonstrated
however,
dancy,
that
means
the additional
Heavilin,
that Mr.
not Mr.
initiated
provides
information
no additional
rele-
cumulative,
the third
Far
sale.
from
vant data
points
jury,
they
are
uniquely
exculpatory.
forced to listen to evidence that tells them
nothing at all new.” United States v.
B
(9th
Ramirez-Lopez, 315 F.3d
The court
Cir.2003)
and concurrence do
(cita-
not em-
(Kozinski, J., dissenting)
government’s
brace the
omitted)
“cumulative” sub-
added),
(emphasis
tions
majority
mission. Toward the
opinion,
end of its
withdrawn,
(2003).
opinion
Ultimately,
argu-
neatly separated as the court’s
argument,
to a different
of their effort
question” of Mr.
“place
a
we cannot
that resolves
"central
contends that
The court
disputed
wording” of the
at trial can
great weight
Ford's defense that was
on
exact
part
supra
because Mr. Ford
October 5 email
of law. See
be immaterial as matter
too,
to
Heavilin or
never used it "to cross-examine
Notably,
neither the
Part I.
responding to one of
that he was
establish
suggested affir-
the district
has
nor
court
requests
(by email or
earlier
Heavilin's
ground
appropriate on
mance would be
Maj. Op.
gun.”
at 987. But
phone) for a
by my colleagues. To the con-
now offered
failing
a defendant for
surely we cannot fault
unreservedly found
trary, the district court
inculpatory
highlight
evidence.
put
government argued and
on evi-
that
seeking
prove
Mr. Ford initiated
dence
government ar-
agrees
4. The court
sale;
reason or authori-
I see no
the third
gued
that Mr. Ford initiated
effectively
alter and effec-
ty allowing us
Maj. Op.
& nn.
at 987-88
third
sale. See
finding.
Dist. Ct. at 3
tively
undo
downplay
the court
seeks to
16-17. But
then
("As
government contended
count 3 ...
by suggesting the
significance
fact
of this
entrapment by Mr. Heavilin
that there was no
argument
score was
government's
on this
impetus
for
third
the idea and
because
evi-
"fleeting” and
and therefore
"brief”
defendant.”);
illegal weapon
from the
came
pre-October 5
namely
suppressed
dence—
(Mr.
Agent
Schmitt
id. at 11
definitively
conclusively proving
email—
opportunity for the
testified that "the idea
wrong
this score is imma-
from the defendant
came
colleagues'
respect
my
Id. With
terial.
”).
views,
‘out of the blue.’
piece
of evidence
I cannot see how
*22
ment
material to
they
assumes. What is
one is
do not explain why they credit
often
to the
government’s
material
other. Under our
evidence rather than the
(unmentioned)
governing precedents,
pre-
a defendant’s
presented by
evidence
disposition
“at
must be viewed
the time
Respectfully,
defense.
I
proceed-
believe
government agent
approached
first
in
ing
this fashion is inconsistent with our
Garcia,
defendant.”
States v.
182
United
in reviewing Brady challenges.
role
Cir.1999).
1165,
Although
F.3d
1169
sure,
To be
in considering the materiali-
predisposition surely
“inferences” about
ty
suppressed
of
in Brady
evidence
a
chal-
may be drawn
occurring
from events
after
lenge,
may
ignore
sug-
id.,
contact,
the initial
question
and the
of
gesting a
guilt.
defendant’s
But what we
question
initiation is different from the
of
may
also
asymmetrically
not do is
scan the
predisposition, we must assess predisposi-
trial
signs
record for
that the defendant is
in
tion
this case at the time when Mr.
guilty.
not,
A Brady challenge is
approached
Mr. Ford con-
first
with,
should not be
sufficiency
confused
a
cerning
this,
the third gun sale. Given
of the evidence challenge
point the Su-
—a
do
pre-Octo-
not see how the undisclosed
preme
repeatedly
Court has
underscored.
ber 5 email to Mr.
in which he
Kyles,
434-35,
at
U.S.
115 S.Ct.
“exhorted”
gun,
Mr. Ford to find a third
In Brady challenge
1555.
a
obligation
our
possibly
could
be immaterial as a matter of
is to determine whether the verdict is wor-
proper analysis
law to a
of Mr. Ford’s
thy of
judicial
the confidence of the
system
predisposition at
the time Mr. Heavilin
light
evidence,
in
suppressed
of the
when
him,
approached
if
even
it does not suffice
“in
viewed
the context of the entire rec-
standing
preclude predisposition.
alone to
Agurs,
ord.”
the evidence in the
exculpatory and
and,
inculpatory,
in concluding
sup-
pressed
material,
evidence at issue was
My
that,
Court
colleagues’ predisposition
stressed
while
discussion
could
focuses exclusively
government’s
on the
well still have
guilty
found the defendant
985-87;
evidence on
Maj. Op.
light
count 3.
of the considerable evidence
Yet,
Concurrence at
government,
989-90.
there is con-
amassed
this fact sim-
countervailing
siderable
ply
evidence in the
was not dispositive of
question
my colleagues
mention,
record that
do not
before it.
before us. by predisposition is demonstrated the third upon completing his insistence 4 transaction, despite being by told Mr. evidence specific An examination of the so, as that he did not need to do high- and concurrence cited the court decoy gun. Maj. by his use of a well as lights my preceding concerns.7 government’s But evi- Op. at 985. across all on this score was identical dence First, that Mr. Ford argues the court closing in its example, counts. For three weapon despite “eager” to sell the expressly con- argument, from Mr. Heavilin. pressure” “diminished that, “contrary to the defendant’s claim, tended of this Maj. Op. support at 984. Heavilin, Keith be- theory entrapment, points to a November conver- the court sales, each of the three told Mr. Ford sation in which Mr. Heavilin fore stressed, defendant, you if are willing told the might that another dealer-friend be safety is a con- it. If the issue days after don’t do gun, sell him a machine two elements, insignificantly, Separately several of charged but not but to the verdict on following arguments fundamental fairness of the trial. the court and con- by either make were not briefed currence course, a con- secured 6. Of court’s or- party considered in the district or govern- appears the viction on count 3. But it (setting only Appellee forth Br. at 15 der. See alone, that count ment did so because on three, four, one). part of Our and reasons suppression only by virtue of its against raising practice would counsel normal argue that Mr. pre-October it could considering supra n. 2. them. See the idea of the sale. Ford initiated cern, R. at analyze don’t do it.” Vol. XV 161 not obviate the need to indepen- added); (emphasis dently see also R. Vol. VI at tending prove the evidence Likewise, 11-13; disprove R. IX at 163. entrapment Vol. Mr. Ford’s re- And, government’s closing argument empha- spect to count 3. again, the evidence engaged respect sized that Mr. Ford counter- on count with predisposition at (of of a decoy surveillance which the use trial was no quality different kind or example) one before each of the three than the jury rejected evidence the on 167; transactions. See R. Vol. XV at see 2.8 counts 9-10; 166; also R. at R. XI at Vol. VI Fifth, the court and concurrence contend 37; R. R. at 62. I fail Vol. IV Vol. XIV that the government produced safely to see how can sustain convic- trial indicating possessed Mr. Ford tion on count relying evidence the third weapon “long before” Mr. Heavilin *24 jury evidently rejected on counts and 2. buy length asked to it. The period, of this Third, predisposition the court contends reasoning goes, the tends to undercut by fact established that Mr. Ford government’s inference that the informant “for the first time” with the entrapped third machine Mr. procuring Ford into gun “thought sale he would make a weapon, decent tends show that Mr. Ford Yet, profit.” Maj. Op. at 985. the court unlawfully possessed it on his own volition. 985-86; makes no mention of Maj. the fact that Op. at Concurrence at 989- evidence at trial showed profits Mr. Ford’s 90. similar, on the second and third sale were My colleagues begin by placing great
not different: Mr. Ford that testified he weight on testimony Mr. Hee’s that Mr. “probably a couple made of hundred dol- possessed Ford gun the third several sale, lars” on the second R. Vol. XIII at Yet, they months before its sale. make no sale, on the third see R. $400 Vol. mention of the fact that Mr. Hee testified 37; XIV at R. XIII Vol. at 111. that guns he saw both of the that were the Fourth, argues “[b]y subject the court sales and 3 in Mr. Ford’s occurred, time the third sale ... any pre possession sales, months before the see R. vious entrapping 13-15; influence ... 72-77; 104-105, had dissi Vol. XI at and that pated,” and that there were “fewer con the FBI points list the concurrence to as tacts” before the third sale than corroboratory before the documentary evidence of his Maj. first two sales. Op. at 985. While I testimony also included both those weap- fully agree ons, with the court that we cannot see R. XI at If Mr. Hee’s presume entrapment on the testimony third count and the FBI list were as con- simply entrapment because vincing was found on my colleagues suggest, surely counts, the first two see United States v. would have convicted on count 2. Nguyen, Cir. But did not. And it plainly 2005), this undisputed legal principle does free not to light do so in of competing Rather, opinion, In this section of its simply the court adds gov- sale. it returns us to the that “the substance of Ford’s October 5 email (mistaken) argument ernment's sup- that the responding shows he to Heavilin’s re- pressed pre-October 5 email is cumulative quest gun, allowing for a thus Ford to con- who, fact, respect evidence with initiated vincingly argue initiated the the third sale. As the itself con- Maj. Op. idea of the third sale.” at 985. But cedes, simply the October 5 email does not argument supply this independent does not an inference, prove, by that Mr. Heavilin initi- finding predisposition, reason for even if Mr. supra ated the third sale. See Section II.A. Heavilin initiated discussions of the third for third opportunity that the idea and Hee’s calling question into Mr. evidence col- from the by my unnoted came defendant.” credibility goes (Mr. 37-38 Op. See R. Vol. XIV Dist. Ct. at 11. leagues. assertions); R. denying Mr. Hee’s Tar- Finally, my colleagues note Rick (testimony private at 141-45
Vol. XIV testimony that he never sold AR- vin’s questioning Mr. Ed O’Connor investigator They argue that evi- 15 to Mr. Ford. observations). may view Unless we Hee’s Mr. testi- dence to undercut tends government’s and credit mony part that he obtained of the AR-15 isolation, fact that disregard the and then shortly from Mr. before Tarvin by jury on rejected much of was only in Mr. response third sale and counts, to see we can it is hard how other Maj. urging. Op. Heavilin’s 986-87. testimony Hee’s unshak- that Mr. conclude this, colleagues infer Mr. my From possessed that Mr. Ford ably confirms weapon possessed Ford must have induced being before time, possess predisposed some and was it.9 procuring into informant government’s govern- from the prompting it without cite the court and concurrence next however, Again, ment’s informant. Gallegos William testimony of Detective why gives court no reason we should Schmitt, who tes- Agent Brian Special *25 any more confidence Mr. testi- Tarvin’s an inter- Mr. Ford admitted in tified that And, fact, an mony than Mr. Ford’s. for some possessing AR-15 view to plau- is at least opposite equally conclusion Maj. atOp. sale. time the third before never Mr. Tarvin testified that he sible. But, 986-87; at 989-90. here Concurrence R. any gun, see sold Mr. Ford nor concur- neither the court again, Mr. Ford XIV at while testified Vol. that Mr. Ford to mention pauses rence weapons three of the purchased that he all See, making such admission. denied 1, 2, and 3 subjects of counts that were the at And neither Vol. XIV 80-81. e.g., R. Tarvin, Mr. only and did so from Mr. at confidently presume why we can explains R. Vol. XIV at 36- urging, Heavilin’s see are Gallegos Schmitt that Messrs. 105; 37; also Vol. R. XIII at see R. Vol. Ford is not. This is sur- and Mr. correct (defense argu- closing counsel’s XV at 160 undis- given the district court’s prising ments). Tar- believed Mr. Had finding the disclo- turbed and sensible that that testimony, it would found vin’s “went to pre-October 5 email sure of weapons all three possessed Mr. Ford con- credibility [it] because to some extent sources; did so well before from other testimony Agent ... Schmitt’s tradicted footnote, weapon, court the third disputes posses- that he the court that fired In a sufficiency claim again to conflate a seems materially across evidence was identical sion Brady court no with a claim. The makes Maj. Op. three. 986 n. 13. two and counts private competing evidence from mention of point, simply support Yet court O’Connor, who investigator, Ed testified testimony, stressing to bolster Mr. Hee's seeks Hee, Mr. Hee pre-trial interview with Mr. in a significant longer had “both and more that he gun. See he never shot the third stated that gun” because with the third machine contact Neither does it mention R. Vol. XIV at 141. having gun two seen the he testified to third testimony Mr. Ford. See R. from similar having prior and to fired the years to the sale (Mr. testifying he never shot at 47 XIV to this anal- Id. I cannot subscribe Hee). Finally, Mr. AR-15 with automatic First, length of time ysis two reasons. ex- importantly, the court does not and most possesses a irrelevant defendant credit Hee's plain why we can or should Mr. 922(o). § Mr. guilty or he is of 18 U.S.C. events over Mr. O'Connor’s whether version of Second, testimony Ford’s. respect Mr. Hee’s Heavilin; making any sales to Mr. HUNT, In re Bobbi J. entrapped possessing
thus was not into or Bobbi a/k/a Yet, Rupp; Hunt, Jr., J. selling weapons. jury acquit- David A. unlawfully possessing ted Mr. Ford of Debtors. transferring weapons. the first second jury may very
It follows that the well have Fargo Bank, N.A., doing Wells business rejected testimony Mr. Tarvin’s and ac- Fargo Finance, as Wells Auto cepted testimony Mr. Ford’s on where he Appellant, guns testimony obtained the from— comports overarching with his contention possession he came into of each weap- Griffin; Hunt, William H. Bobbi J. as a of Mr. result Heavilin’s over- Rupp; aka Bobbi J. David A.
weening influence. The court and concur- Hunt, Jr., Appellees. explain why rence make no effort to can confidently possibility discount this so American Financial Services Associa- strongly suggested the evidence.10 tion; National Automobile Dealers
[*] [*] [*] Association; Kansas Bankers Associa- tion; Ford Motor Credit Company, only meaningful evidentiary differ- LLC; Ingrid Hillinger; M. Michael ence between the counts on which Mr. Hillinger; Sevitin; Adam J. Michaela acquitted Ford was and convicted was the White; Braucher, M. Jean Amici Curi- that, fact was able ae. to show that Mr. rather than its No. 07-3297. informant, initiated discussions over the *26 know, however, sale. We now United States Appeals, Court of that Mr. Ford did not initiate the third Tenth Circuit. gun sale: the suppressed pre-October 5 email definitively proves that. In these Dec. circumstances, I am compelled to conclude that the suppressed email was material to question entrapment, sup- its
pression deprived Mr. Ford of a fair
and that resulting verdict does not
deserve our respect confidence. With
the considered of my colleagues, views
dissent. 20-22; presented
10. Mr. Ford also evidence that Mr. XV at Jury see also Instruction 7No. past felony had a Tarvin conviction and ar- (informing jury testimony that Mr. Tarvin’s gued from fact that Mr. Tarvin would be “may impeached by be discredited or show- even typical more reluctant than the citizen to ing previously that he has been convicted of a having illegally admit to weapons sold for fear felony”). particularly of a harsh sentence. See R. Vol.