*1 UNITED STATES America
Ralph DENNIS, Appellant.
No. 14-3561 Appeals, States Court of
Third Circuit.
Argued November
(Filed: June *3 jury on an request to instruct
ing his by dеnying entrapment defense outrageous asserting motion for dismissal that his sen- also contends He prosecution. Eighth Amendment violates tence States Constitution. the United rob a conspiracy to nar- convicted of house,” to 18 pursuant U.S.C. “stash cotics 841(a)(1), § 1951(a), 21 § U.S.C. 841(b)(1)(A). also convict- § He U.S.C. during the carrying com- ed of firearm crime, pursuant to 18 U.S.C. mission *4 924(c)(1)(A)(i). District Court sen- § The imprison- months’ Dennis to 180 tenced minimum. ment, statutory that Bureau Alco- Dennis maintains Tobacco, Explosives hol, and Firearms T. Esq., Lustberg, Jillian S. Lawrence (ATF) him, through agents induced Yaster, Esq. Stein, Benjamin [Ar- Z. Esq., sting friend, in a reverse to participate Center, Gibbons, Gateway One gued], him to incriminate and designed that was 07102, Appellant for Newark, NJ Counsel the Dis- agree co-conspirators.1 We Esq. [Argued], Office of Coyne, E. Mark entrap- given an have trict Court should Street, Broad Attorney, 970 United States robbery and gun instruction ment 07102, 700, Newark, Glenn J. NJ Room Therefore, will va- we charges. possession Moramarco, of United States Esq., Office and judgment of conviction sen- cate the Building & Federal Attorney, Camden charges and remand to these for tence as Camden, Street, Courthouse, 401 Market on the is affirmed trial. The judgment new 08101, Appellee for Counsel NJ drug charge. remaining HARDIMAN, AMBRO, BEFORE: II.2
NYGAARD, Judges Circuit Camden, agents In ATF June OPINION Burk, a Kevin con- Jersey met with New NYGAARD, Judge. Circuit charges facing forgery who victed felon local law en- cooperating with had been I. informant. The as a confidential forcement of rob- investigating string trial, were agents assert- a new Ralph Dennis seeks Jersey New and Phila- deny- in Southern beries District erred ing that the Court ap- Dennis’ purposes our review of 2. For Hardee who was tried with Terrance 1. Dennis his re- Court’s denial of peal for role in "stash of the District was convicted instruction, separately robbery. States we quest house” will for an sentence, Har- appealed Hаrdee's 92-month in favor of Dennis all factual conflicts resolve cross-appeal. We re- appeal did not dee or may improbable we find the "no matter how resentencing rea- in that case for for manded United States defense version the facts.” change analysis here. our that do sons Watson, (3d Cir. Mitchell, pleaded conspirator, John Another sentence. guilty and received a 78-month delphia County, Pennsylvania. Upon being but admits purchased he still quanti- small questioned about associates who were in- ties of cocaine for Burk. Eventually, Den- crimes, volved in robberies or violent Burk nis parole violated and was incarcerated for responded spoken days that Dennis had of con- in the jail. Camden County ducting home invasions and other robber- tried, Burk on a occasions, number of agents ies. The ATF were unaware of enlist help various prior to this. Burk added that Den- that, schemes. Dennis times, said three recently nis had been detained at the Cam- Burk asked his help carry out bank County den Jail. robberies. He declined each time. J.A. agents 1017-21. On attempt, confirmed Dennis’ Burk’s third detention recalls that told him then conducted Burk criminal record had already guns They search. discovered had scanner needed for the job. J.A. felony says several convictions 1022. Dennis possession that he refused help later, intent to distribute small Burk. Two amounts of weeks ap- Burk proached crack to ask cocaine between 1996 and him for his help robbing bur- glary time, a stash of a motor bike in house. This and for Burk him told job possessing necessary with intent to sell multiple help out his mother .pounds marijuana who had cancer. in 2011. Burk him Burk then told *5 “Rock,” that a agents disgruntled drug told that Dennis previously had courier for cartel, drug Mexican requested point was the help per- his in robbing a check- son for job. Burk said that the cashing operation, but he had declined. yield would to 40 kilograms Dennis cocaine later testified that this was false. with a street-value of million. J.A. $2 J.A. 1040.3 1027- 28. Dennis agreed. This was beginning ATF agents instructed Burk to ask Den- of the ATF’s reverse sting operation. help, nis for his supplying with a Burk During the discussion between Burk and fictional back-story: he was to tell Dennis Dennis about the stash house robbery, that he help needed his to carry out a (an Dennis) John acquaintance Mitchell robbery. friends, Dennis and Burk were by. questioned drove He Dennis about his and each acquainted with the other’s meeting Later, with Burk. J.A. 1029. Den- family members. Together J.A. 1002-03. plan, nis told Mitchell about him asked they engaged quantity small cocaine help, to and introduced him to Burk. purchases and Additionally, sales. after agreed Mitchell to por- assist.4 Dennis Burk a sentence drug served for his activi- trayed Mitchell as someone who “robbed ties, he and Dennis became involved ... young in thе neighborhood” bulls and sales, pound-quantity marijuana traveling as someone often gun. who carried a J.A. together to Texas on more than one occa- 1055. sion to purchase supply marijuana.
J.A. 1009. Dennis was for this arrested Burk up set the first meeting between activity. that, this, He testified after agent, the ATF Dennis and Mitchell for attempted crime, to break free of a life of June 2012. meeting, Before the Burk review, 3. Dennis testified that it was Burk accept who had we Dennis’ version of these requested help in these robberies. interactions. prior Dennis testified that he declined three invitations. Burk’s brother later corroborated 4. Mitchell testified that Dennis met at a him one of alleged the incidents that Dennis with bar plan and told him about Burk’s to rob eye-witness testimony. purposes For of our stash house. any- hurting me or somebody somebody or they needed that Mitchell
told Dennis gun].” J.A. So, just got rid of thing. [the real I he was “the Roсk because impress to them to Burk asked 1013-14. 1029. thing.” J.A. Rock so impress to the role” “play Dennis a Mitchell and offered Rock Dennis job. J.A. 1030. get
they could this Both declined out. chance back complied. Mitchell that he and said they needed Burk said opportunity. (Greg as posing Rock agent ATF out whether meeting figure another Dennis, Burk, Sheridan) met 1039. J.A. law enforcement. Rock was Pennsauken, Jersey, and New Mitchell that Rock However, told Dennis he also Rock job.5 about more details provided earlier years ten good friend had been revenge be- seeking that he explained J.A. he was “the real deal.” and that money to loan him refused cause the cartel anoth- they needed suggested that Dennis on to Rock went ailing mother. his help have plan part er be man courier, and he shared explain his role intimidating physically who was someone stash how the cartel’s his observations 1041-42. guаrds. J.A. enough to handle Mitchell both operated. houses Terrance Hardee. This man was how the about on details questions asked meetings, on June During later two ex- guarded. stash house would 10, 2012, group dis- July 2012 and retribution directed about concern pressed expressed again plan. their Rock cussed had to plan Rock, and indicated cartel for betrayal feeling of toward being suspicion of any from Rock insulate group him. He told help its refusal Rock stressed also J.A. 1823-24. involved. and 20 usually were between that there plan have a well-executed they had to house, the stash of cocaine at kilograms high. J.A. 1311-12. were the stakes because individuals, by two guarded it was and that they would initially stated moved being armed. conversation one *6 down, they that and guards put to the have for they compensated to how would on gun in the put he “fold” when would they them that job. the Rock cautioned guards. the J.A. оne of mouth of they the cocaine repackage need to would suggested meeting he the Later in 1312. being to avoid from the heist received guards. up tie the and they only subdue responded Dennis by the cartel. tracked they Rock that also told Dennis J.A. 1035. that, already thought of and that had he a .357 gun caliber and a .40 bring would packages of kilogram the split to planned Nonetheless, testified gun. magnum 466-67. re-wrap them. J.A. cocaine and head, his in over he was that he felt group Rock told the robbery, for the J.A. As this to Rock. not show though he did information only general received these that he saying that he was He said 1035. the stash house Rock, day in advance about and to one solely impress to things could Mitchell 1033, 1035, suggested He that 1037. location. J.A. probe his intent. they ap- as of his SUV hide the back gun. in he did not own that Dennis testified and character- the stash house proached was fifteen when he gun He last had a robbery relatively proposed ized the the that reason explained He years old. guards were the stash house easy that trying go because “wasn’t that he this was sug- 1366. Dennis a little bit.” J.A. whatsoever, hurting “slippin as far as route, like recording transcript of the ny from the audio and meetings recorded with were Most meetings jury. these in narrative shown and video. The testimo- both from trial opinion drawn this is they gested guns gun would use stun found at that belonged time to Mitch- guards. During subdue the meeting, ell. appeared Mitchell to assume that Dennis Dennis message received a on July house, accompany
would him into the stash robbery would place take on but made it clear he would the next day. Dennis and Mitchell pur- outside, stay parked in and send someone zip chased ties but did not purchase DEA bigger who threatening. and more He planned. shirts as Dennis, J.A. 609. Mitch- group told the he would be listening on a ell, and Hardee met that evening to dis- phone. cell J.A. 1375-77. plans cuss the for the robbery. The next morning, group departed Cherry requested Mitchell meeting third Hill, Jersey, New in Burk’s vehicle. At that get clarity specific roles each one point, they in possession were of two guns, in play would they and how gun, one stun gloves, and zip ties. Once in approach would the stash house. Burk Hill, Cherry the group in traveled two cars called it up. July Rock set At that to a storage facility prepare for and they 2012 meeting, through talked how rehearse robbery. there, Once Rock Rock, Mitchell, (Hardee) and a third man group told the they could leave would enter. Mitchell and agreed share of the cocaine in storage unit. He who those entered the stash house gave gate code to enter storage behind present Rock should themselves as facility to Mitchell. Rock talked through DEA agents guns subdue with stun the details of how the stash house set zip ties both the guard armed at the up. group then walked through the door and the guard unarmed watching robbery, rehearsing how it would unfold. over the cocaine bricks the kitchen. they After completed walk-through, objective stated that their was to ATF agents rushed on the group and get in quickly and out “nobody gettin’ Dennis, Mitchell, arrested and Hardee. hurt.” J.A. 1400. suggested He also that he take Rock’s truck after the robbery to Mitchell pleaded guilty. Hardee and strengthen perception that Rock was Dennis were tried together. Dennis first involved it. Dennis testified that he moved to have indictment dismissed was very point nervous at this wres- the basis of outrageous prosecution. The tled with whether he wished to follow District Court ruled that it could not “find through job. on the J.A. 1057. anything inherently outrageous or unfair *7 something or that shocks [the] conscience.” 10, July After the 2012 meeting, Burk J.A. 42. The open, District Court left how- reminded Dennis that he told the group he еver, possibility the of revisiting the mo- guns had two bring. he would 1063. J.A. tion if evidence at trial It warranted. never questioned Dennis whether gun another did so. needed, was since Hardee was going go to into the stash house awith stun Burk gun. Dennis proceeded then with an entrap- pressed that it was necessary for Dennis ment defense. Dennis testified on his own gun to have a in his role as lookout. J.A. behalf and called two other witnesses: Dr. 1065. day, The next Burk stopped by again Armstrong Carol and Seth Lawrenson. Dr. gave and a bag Dennis red containing Armstrong, a neuropsychologist a ex- who gun. He asked Dennis to keep bag Dennis, amined concluded that he suffers his residence. J.A. 1066. Dennis testified from neurocognitive impairments, with an that of guns this was one IQ found when score of 74. She testified that Dennis they were arrested. J.A. 1067. impaired A second was ability to “[h]is correct his
690 III. ... to or to reason ability thinking, his are of a consequences infer what Entrapment re- She has.” J.A. 890. he that thought argues that is first asked: when the affirmative sponded the District trial because to a new entitled was Ralph believe you “Do request for a denying his by erred Court than other- influence to susceptible more giveWe entrapment. jury instruction in this healthy- individuals would wise denial District Court’s to a plenary review Lawrenson, broth- Burk’s case?” J.A. 889. entrap jury charge a of a motion occasion, witnessing, on one er, testified to Fedroff, 874 F.2d v. States ment. United help to him request Burk’s Dennis decline 1989). (3d “Entrapment oc 178, Cir. 182 rob a bank. predis not who was a defendant curs when rested, the District defense After the does so commit the crime to posed request considered Court inducement.” government’s result The District entrapment. charge on jury Jannotti, v. States United own testimo- that Dennis’ concluded Court banc) (“Jannotti I”), Cir.) (en cert. (3d to commit predilection ny established denied, 102 S.Ct. 457 U.S. by his as demonstrated Burk crimes with (1982). are two elе There L.Ed.2d 1315 the number him with association long govern by inducement proof: ments together. It committed two crimes the crime, and the defen to commit ment no provided record also ruled that to commit the predisposition lack of dant’s join was hesitant evidence that Wright, v. crime. United States The District J.A. 99-100. conspiracy. in the 1990). (3d A defendant who 42, 44 from any drawn inference said Court to instruct the District Court requests the previous participate refusal his has a “bur jury an defense ways,” “cut both could Burk crimes with regard to both production” den fully capa- Dennis was show could El-Gawli, v. States United elements. activity he criminal what choosing ble 142, 145 F.2d Moreover, in. J.A. engage wanted pro first defendant must words ruled the District Court inducement to show enough evidence duce willingness to be- ready actions showed solicitation” A government. “mere by This conclusion involved. come partici government request of Hardee or rеcruiting by his strengthened more, activity, is in a criminal without robbery. pate J.A. 97. carry out help at 45. Wright, inducement. participate resolve Finally, Dennis’ Likewise, opportunity merely opening him- to sever by his refusal demonstrated insufficient. Mathews for a crime ATF under- after the group self from the States, 58, 66, 108 S.Ct. 485 U.S. oppor- him an gave explicitly agent cover (1988). Rather, 99 L.Ed.2d In the District Court’s tunity to leave. *8 that law enforcement show defendant must was “over- assessment, this evidence all of the form of that in takes engaged “ conduct “small” evi- to the compared whelming” representation, fraudulent testimony: ‘persuasion, in his proffered dence Dennis harassment, tactics, threats, coercive participant, a reluctant that was stating he based on pleas or of reward promises gun, and that the owned had not that he ” Wright, friendship.’ need, or sympathy him to in persuading mother use of Burk’s Fedroff, 874 F.2d (quoting at 45 heavily on weighed his join conspiracy 99. decision. J.A.
The District Court noted that this personal relationship to Dennis contribut- sting operation, was a reverse and it ap operation ed to the by allowing Burk to peared agree in appeal sympathies Dennis’ based on the ducement prong analysis story of the had thus of Burk’s sick mother whom Dennis been met. We too are convinced that had met oif a number of occasions.6 We prong analysis met, first has been also Dennis, note that Burk: recruited set but are quick we not so to conclude that it up the first meeting with the ATF agent, simply is because it was a sting. reverse drove Dennis to the meeting, and asked Rather, there were number of elements “play the role” of a seasoned particular operation of this that lead us to robber.7 conclude that Dennis met his burden to assists, Each of themselves, Burk’s by question
raise a about inducement. would not necеssarily enough tip major
A factor in our conclusion is the scales to However, constitute inducement. Burk, central role that collectively, ATF’s confiden- they carry great weight. When informant, tial played getting Dennis to this is added the substantial financial participate in the scheme. payoff had no pitched ($1.5 that was to Dennis known million), connections to the crimes the ATF million to we are convinced $2 was investigating at that time and was properly Government’s efforts can only targeted produced after Burk be classified as inducement. The Govern- name in response general to the ATF’s ment’s action exceeded a situation in which inquiry people about he merely knew who were opened up an opportunity for Moreover, involved robberies. committing Here, Burk’s a crime.8 the Govern- argues 6.The Government that Dennis never record in a manner favorable to Dеnnis. Addi- explicitly friendship, said that Burk’s nor the tionally, testimony Dennis' about all of Burk’s mother, story ailing of Burk’s influenced his appeals to him to assist in various schemes is examination, disagree. decision. We On cross proposition consistent with the their anything per- Dennis was asked if other than friendship (de- played a role. See J.A. 1017-22 sonal risks and rewards motivated his in- scribing the nature of Burk's unsuccessful robbery. volvement in the J.A. 1138. He re- schemes); appeals help for his J.A. sponded why there was more to he (describing 1022- 27 nature of Burk's agreed join prosecutor the scheme. Id. The appeal help successful for with the stash immediately up asking why followed scheme). house anything along never said “gee, the lines of [Burk], really gonna help your moth- Later, Burk convinced Dennis of the need responded er.” Id. Dennis that he had done gun during robbery, for Dennis to have a so, caught but his statements were not on the supplied gun and then he to Dennis. This recordings many ATF’s and that of his conver- evidence, though occurring well after Dennis place pres- sations with Burk took outside the induced, charge gun is relevant to the agents equipment. ence of ATF and their J.A. possession. exchange 1138-39. This indicates that Burk's plea join affected Dennis’ decision to 8. The Government's actions “exceeded the unsurprising scheme. And this is friend —a typical sting government merely in which the years whom he had help known for asked for ordinary opportunity offers an to commit a pay for his mother's cancer treatment. crime, Blitch, without more.” United States v. While it is true that Dennis never uttered the (7th 2014), as amended “friendship partic- words that motivated (Jan. scheme, reh’g rek'g on denial en banc ipation” in the stash house we find a 2015), denied plea cert. sub nom. Carwell v. United friendship to lie at the basis of Burk’s - States, -, Indeed, plea help. entirety U.S. 135 S.Ct. of Burk and (2015) (quoting predicated Dennis' conversation L.Ed.2d 159 United States v. seems friendship. (7th only strengthened by Mayfield, This view is *9 (en banc)). required the interpret fact that we are to the 692 to his persuaded due vulnerability being to un- previously an individual targeted
ment IQ. low help persua- and, the with to it known a friend who was of informant of an sion evidence, Dis- the all of this Even with the com- him into actively led target,
the that he did concluded still trict Court Dennis’ satisfies This a crime. mission of jury ground enough evidence to produce on inducement. burden that stating entrapment, instruction absence of an “almost no there is evidence there whether examine nextWe evidence overwhelming predilection of raise a reason to evidence was sufficient to com- predilection or predisposition of a to predisposition about able doubt The District 101. mit the crime.” J.A. v. Jan States crime. United commit recordings that the was convinced Cоurt 213, notti, the oth- Dennis and between meetings Bocra, (“Jannotti II”); States “eager partici- an him to be ers showed denied, (3d Cir.), cert. F.2d was testimony Dennis despite pant” L.Ed.2d 96 101 S.Ct. 449 U.S. Rock. impress the role” to “play told to (1980) establish the successful (“[K]ey to regard- The District Court J.A. 1030. proof is defense entrapment ment of an Burk in with long association ed Dennis’ to predisposed was not that the defendant evidence of strong as drug crimes previous the criminal and that crime commit the that Dennis recognized It also predilection. the Govern originated intent fact occasions, declined had, previous on three alleged ment.”). in an question basic “The It acknowl- robbery plans. join to Burk accused case is whether inference could be positive edged that the crime willing to ready and commit was information, signifi- giving this drawn from presented, or should any opportunity if as ailing an mother use of cance tо Burk’s disposed not otherwise person whether a to in Dennis’ decision factor important an by some corrupted wrongdoing in this case. accept Burk’s solicitation inducement, often overreaching special or However, reasoned District Court conduct.” Wat reprehensible amounting ways” and could “cut inference both this son, general, predis at 509. “In testi- from this stronger inference the defendant’s may be defined position accept free to felt mony was that Dennis the crime for engage in inclination at will. J.A. solicitations or decline Burk’s before measured charged, which he was agents.” government exposure his initial (citations and at 182
Fedroff, Court the District says omitted). footnote by weighing evidence erred goes him. He against drawing inferences record argues that in the Dis- defects that these on to assert evidence to than sufficient contained more his motion for trict deliberation Court’s showing that he lacked meet his burden all pertain instruction this crime. He to commit predisposition convicted since which he was the counts on the absence following facts: focuses on inextricably en- conviction was drug in his criminal crimes robbery or violent robbery conspiracy. twined with testimo partially corroborated history; his the fa- suggests The Government prior opportuni away three turning ny of ap- standard that robberies; vorable review his disavow join Burk ties to considered only for motions stand; testimony plies proper al of violence Marino, it contends Citing to pretrial. many gun not owned that he has in. pres- that, permitted since Dennis testimony of his expert years; and *10 693 support ent his evidence in of an entrap- strength of the evidence the Government defense, the per- ment District Court was presented. weigh
mitted to
the evidence to decide
Unitеd,
“Unless the appellate court be
Marino,
States v.
Dennis’ motion.
highly probable
lieves it
that the error did
(3d
However,
Cir.
not affect
judgment,
it should reverse.”
Marino distinguished
because it was
Virgin
Toto,
Government
Islands v.
separate
focused on the need for a
eviden-
II,
1976);
Jannotti
tiary hearing.
It
separate
held that a
1
with
necessary
carry
out,
items
and
constitutional claim “should
accepted by
transported him to the location where the
only
a court
to ‘curb the most intolerable
crime was to be committed.
In
Id.
our
”
government conduct.’ United States v.
dismissal,
Supremе
we noted the
Court’s
Beverly, 723
admonishment to refrain from exercising
Jannotti,
(quoting
673 F.2d at
“ ‘a Chancellor’s foot’ veto over' law en-
practices
forcement
of which it [does] not
argument
Much of Dennis’
(alteration
approve.”
at
Id.
in original)
supporting
outrageous
his assertion of
(quoting
Russell,
United States v.
411 U.S.
prosecution reiterates claims he
in
made
423, 435,
93 S.Ct.
credible basis for
that he was
supporting
family
himself and his
Conclusion
activity,
criminal
any
suspect
nor
basis for
ing
crimes;
Dennis
participate
would
above,
For all of the reasons stated
we
actively
that the Government
encouraged will
judgment
reverse the
of conviction and
crimes;
participate
I,
Dennis to
in the
only
and
sentence
on
сonspiracy
Count
finally,
provided
necessary
that it
in
robbery pursuant
commit
to 18 U.S.C.
implements
1951(a),
III,
§
formation and
for the crime.
using
carry-
and Count
and
However, “a successful
process
ing
due
de
during
firearm
and
relation to a
predicated
fense must be
pursuant
intolerable
crime of violence
to 18 U.S.C.
924(c)(1)(A)®.
government
§
goes beyond
conduct which
We will remand to the
necessary
to sustain an
District Court
a new trial.
judg-
Jannotti,
defense.”
OS as .to jury on 841(a)(1) “correctly refused instruct § of 21 U.S.C. in violation
cocaine informant “mere- 841(b)(1)(A). entrapment” because § 21 U.S.C. opportunity ly defendant] [the offered dissenting in Judge, because, AMBRO, Circuit after the offense” to commit concurring part offer, no reluc- he “exhibited part receiving the tance.” Id. at 554. in a participate chance to Offered Court ex- agreed As the District robbery, Ralph Dennis here. Same house stash slight- lacks “even plained, case is thus the record This without hesitation. partici- ... оf reluctance the Su- est indication application straightforward And once App. 96.1 in this crime.” pate rule that defendant Court’s preme contribut- conspiracy, joined instruction when to an entitled instance, he enthusiastically. For most, ed shows, that the Gov- the evidence *13 (John co-conspirators in two other brought afforded an “merely opportunity ernment Hardee) helped and Terrance Mitchell of the the commission or facilities by robbery sug- planned the States, 485 choreograph v. United crime.” Mathews up ,the crew should tie that the gesting 883, 54 58, 66, 99 L.Ed.2d S.Ct. 108 U.S. stash house. guards the (1988). eager participation, Despite Dennis’ District concludes that the majority solicitation Recognizing that mere jury on required to instruct the was Court a non-exhaustive have set out we enough, conclu- Because I believe that entrapment. can demon- a defendant ways of list Mathews, respectfully I to fоllow fails sion an in- entitlement strate opinion. of the portion from that showing dissent include These avenues struction. Meanwhile, majority’s pro- due join I co- representation, fraudulent “persuasion, to ex- separately need, write analysis tactics, cess but on pleas based [or] ercive of the practice concerns about United States v. some press sympathy, friendship.” or (3d stings. house Fedroff, 874 F.2d stash reverse Cir. 185 analysis primarily majority rests its The Mathews, held, on have based We “pleas based item in on the last the list— solicitation, a matter of mere “evidence (cid:127) It need, friendship.” con- sympathy, or on law, jury’s deter- is not germane relationship to personal that “Burk’s tends States United entrapment.” mination by operation to the Dennis contributed Marino, 549, 552 n. Cir. 868 F.2d 6 sympa- to Dennis’ allowing appeal Burk to 1989). Marino, a informant In Government Burk’s sick story based on thies attorney to in stolen securi- an deal asked a num- met on whom had mother Id. at 550. attorney agreed The ties. Maj. at 691. Op. ber of occasions.” participant, an active thereafter became a getting bar for Though there is a low infor- with initiating communication doing entrapment, on so meetings. Id. jury instruction attending secretive mant and relationships is personal relative- on Court based held District at 550-51. We Entrapment notes, is con- Government. majority behalf Dennis testified 1. As the Government, by the with inducement requests down cerned previously had turned other informant, parties Burk, by private requests not with made the confidential from Kevin See, e.g., agendas. prop- their own majority crimes. The commit similar (4th Squillacote, States v. suggesting incidents erly these avoids who Rather, (noting that "defendant correctly con- Cir. bear inducement. private party, to commit crime predisposi- induced of them to tains its discussion involvement, any gоvernment cannot without prong. stash house tion entrapped”). that he was claim proposed to Dennis Burk first crime that See, ly e.g., difficult. v. Ev- United States the evidence shows that Dennis did not (or (D.C. 2000) (“Al- ans, take much any) convincing. even though past we have indicated that None of this suggest should that entrap- satisfy can pleas] [such the inducement ment instructions are unavailable in the defense, prong of an we have context stash house stings. reverse In a plea sufficiently strong never found such fact, they frequently are required. For in- so.”). to do But here the problem runs stance, Circuit, the Seventh sitting en deeper. Though Dennis at length, testified banc, determined that a defendant had a sympathy he never said that for Burk’s an right to instruction because the Govern- anything mother had to do with his deci- ment engaged a “concerted effort” to join sion to conspiracy to rob the stash get him to agree to rob a stash house. house. Mayfield, United States v. (7th 2014) (en banc). The defen- majority acknowledges prob- dant offers, declined all of the initial but lem. It concedes that it is “true that Den- the Government’s informant persisted by nis never uttered the words that ‘friend- bringing up subject day” over “[e]ach ship participation’ motivated his in the period. extended Id. This is classic evi- scheme,” stash house but it nonetheless dence of inducement. plea finds “a of friendship to lie at the later, But less than a month panel *14 plea help.” Maj. basis of Burk’s Op. at the Seventh Circuit decided another stash My 691 n. colleagues base this conclu- house reverse sting case that a looks lot sion on Dennis’ testimony that he told ours, more like and it concluded that no Burk money that the from the robbery “is entrapment instruction was required. My
really gonna
your
help
(quot-
mother.” Id.
colleagues suggest
case,
that this second
ing App.
But
recognition
(7th
Blitch,
Unitеd States v.
committed. indict- concluding actively not fоreclose in Blitch was here, the informant due to instance, be’quashed egregious should he ment sting. For in the involved See, e.g., conduct the Government. find anoth- of the defendants one asked Jannotti, United States v. the robbers discussed how er participant, 1982) (en banc) “a (noting that meeting with haul, up a set split would does not finding preclude no the crew and called agent, the undercover defense”). availability process a due pro- heist to the would-be night before 84(M2. however, notes, claim majority As the details. Id. vide on this I write nonetheless falls short. its facts in Blitch contrasted panel my concern about express point latter Mayfield. Whereas those with house implications of stash constitutional courtship between a drawn-out involved stings. reverse partici- a reluctant the Government wields tremendous The Government a “take-it-or-leave-it Blitch featured pant, it ex- investigating crimes. Here power mere- the Government where proposition” authority to create from whole extensively ercised that a crime without ly presented prosecute crime and to cloth a participate. Id. fictitious lobbying the defendants could have for a not someone concluded that de- The Court at 845. There was stash committed. no subject anything been “were fendants cartel, This is house, and no cocaine. government’s so- no transform would to a According not an occurrence. more than an or- isolated something licitation into 1,000 article, have been crime,” people over to commit dinary opportunity (and prose- at least 600 have been arrested argument rejected cuted) to rob attempting connection amount of obtaining large “promise *15 Heath, houses. See Brad thou- fictitious stash to hundreds of in addition drugs, Big Bucks to hand, Drugs, Fakе ATF Uses of actual on of dollars cash sands Today, Suspects, USA June Id. at Snare improper inducement.” qualifies as omitted). great (internal The Constitution affords 1A. quotation marks 844~45 investiga- to the Government’s Thus, majority, Blitch deference helping from far choices, it draw a line: indict- but does tive reasoning. rejects its cannot outrageous conduct ments based not sufficient evidence there is Because has appeals court of found stand. No inducement, to a is not entitled of in that line has crossed Government if he establish jury even could instruction sting. But a stash house reverse setting up Marino, 868 predisposition. See lack been that the Government has appears it if (“Consequently, at 551 n. 3 the line. tiptoeing near evi- produce does not sufficient defendant Black, instance, in States v. inducement, non- For evidence dence (9th 2013), the Govern- Cir. warrant an 733 F.3d alone would not predisposition part into “a bad ment an informant that a sent charge.”). The threshold to rob a strangers willing town” to get instruction look must cross defendant (internal quotation at 299 stash house. Id. Dennis has to meet high, is but failed not omitted). not targeting affirm the marks I would therefore his burden. people any suspicion ruling based on Court’s District any way predisposed were approached instruction. checked, majority erly to commit the crime. The con- eventually will find itself on process cluded that there was not a due the wrong side of the line. dissented, Judge writing:
violation. Noonan then, only Until courts can play a limited role in policing investigative priorities. We imaginary gives stash house ... [T]he are judges and not policymakers, and our government essentially unchecked outrageousness lodestar is and impru- not power persons to increase the number of dence. But what we can distinguish do is by drawn as robbers supplying the оur analysis narrow constitutional from a imaginary guards number of for the broad stamp approval. explained As we by drugs supplying the amount of context, in an analogous “[t]his conclusion imaginary drugs that are supposed to be ... should not construed approval be as an present. power by exercised government’s of the conduct. To the con- government only is not to orchestrate trary, we grave have doubts about expand the crime but to control and propriety of such tactics. Although we can- guilty those of it. I do not see how this say that such conduct of itself power can rationally exercised. No Constitution, violates the may illustrate standard exists to determine the limits the necessity greater oversight so that government’s discretion. questionable police practices can be curbed (Noonan, J., Id. at 318 dissenting). And they before our violate most fundamental when thе Ninth Circuit declined to rehear laws.” United Beverly, States v. banc, Reinhardt, the case Judge joined en I echo these senti- Kozinski, Judge then-Chief dissented. ments here. They majority wrote that the opinion sent dangerous signal
“a that courts will uphold
law though enforcement tactics even their equality, fairness,
threat to values of
liberty is unmistakable.” United States v.
Black, (9th
(Reinhardt, J., dissenting from denial of banc). rehearing en Alejandro Omar FRIAS- Black a cautionary tale about what CAMILO, Petitioner can power result if the to create crimes is *16 employed without constraints. Our facts GENERAL, ATTORNEY are United States nearly as severe. The Govern- America, Respondent. not, Black, ment did as it did in select a Rather, defendant random. a confiden- No. 15-3733 tial provided informant information about United States Court of Appeals, past, Dennis’ criminal much of which the Third Circuit. corroborate, Government was able to be- sting fore the approved. But Submitted Under Third Circuit L.A.R. does not critique make the wholly inappli- 34.1(а) June Noonan, Judge cable. Unlike I do not (Opinion Filed: June impossible find it for the Government to exercise rationally its discretion up to set stings.
stash house reverse But I share practice,
the concern that prop- if not notes him show that he was not predisposed to District Court’s denial of his motion for an drug commit history crimes. His of convic instruction —Dennis prof- was still able to tions for possession and distribution of co fer all of entrapment. his evidence on marijuana Therefore, caine and contradicts Dennis’ though even the District Court may assertion he was not predisposed have erred in its deliberation of evi- motion, commit the crime of supporting possessing dence and dis our harmless tributing cocaine. attempt error review—like the to dis jury’s encompass- — result, asserts, tinguish es the dealing entire record. As a his record of in small quantities District Court’s review of of cocaine from large quanti the entire ultimately ty record is unavailing. excusable because the of cocaine at issue here is See, Blitch, jury e.g., United States v. weigh was able to all of the evidence (7th and it still convicted (finding that a