United States v. Stephanie Cannon

Consult., Inc., F.2d National Benefits America, (7th Cir.1992), who STATES participant UNITED Plaintiff-Appellee, plan adminis peel in an on a banana slipped preempted not be would office trator’s v. “run-of-the- 514(a). all are cases § These CANNON, as also Stephanie known at Mackey, claims. mill” tort Lynch, Stephanie Defendant- by a a suit involved 2187. None Appellant. Nor did against plan. participant plan on a negligence based allegations of concern America, STATES UNITED plan denied bene where to treat failure Plaintiff-Appellee, They also proposed treatment. for the fits v. something arising from relationships involve here the sole plan, while than benefit other CANNON, Anthony Keith relationship between PruCare any for basis Defendant-Appellant. Anderson, and Jass, PruCare America, STATES solely from the UNITED arises Jass Anderson and Plaintiff-Appellant, provided Jass. plan PruCare benefit health

v.

III. Conclusion CANNON, as Stephanie also known Lynch, Stephanie Defendant- Margulis and PruCare against claims Jass’ Appellee. “com- are alleged negligence Margulis’ are within such and as preempted” pletely America, STATES UNITED jurisdiction. Dis- subject matter this court’s Plaintiff-Appellant, appropriate be- claims missal these allege claims failed cause Jass CANNON, Anthony Keith remedy. Dismissal of provides a ERISA Defendant-Appellee. PruCare for against liability claims vicarious was also negligence alleged Anderson’s Dr. 95-1997, 95-2233. Nos. to” claims “relate because these appropriate Appeals, Court preempted are as plan and such benefit Eighth Circuit. However, re- we have because 514. against PruCare claim Jass’ characterized 14, 1995. Nov. Submitted claim, be she should of benefits a denial July 1996. Decided com- her to amend opportunity given the relief under appropriate allege plaint rea- foregoing and the For these

ERISA. part. Remand sons, part Affirm supplier said he ND, pistol. had argued, for Sherbrooke Fargo, Doeling, Gene W. weapons and offered provide those could who Stephanie Cannon might want. anything get else ND, argued, Henderson, Fargo, Richard the deal would have explained that He Anthony Cannon. Keith for however, Dakota, be- place take North ND, Reisenauer, Fargo, ar- Keith William out for his an arrest warrant there was cause appellee. for gued, When Sherbrooke supplier Minnesota. about their reasons kidded Defendants GIBSON, HANSEN, R. JOHN Before weapons, Defendants said wanting the MURPHY, Judges. Circuit they had had because “desperate” past. them the drugs stolen from HANSEN, Judge. Circuit Anthony Keith third Stephanie later, parties Cannon for a days met Two drug and Alexandria, again of various were convicted and Sherbrooke time Cannon validity They challenge the offenses. from Defendants. base purchased firearm cocaine convictions, of is- raising a number immediately turned conversation gov- outrageous entrapment, including Stephanie transaction. the next plans sues due of their in violation was in- conduct she again Sherbrooke ernment told Cannon misconduct. rights, prosecutorial and obtaining handguns, and process in five terested contending appeals, prior cross he had at the replied, The United as Sherbrooke erroneously sentenced get district court her the supplier that the could meeting, that his remand. reverse and might want. anything defendants. else she handguns and conversation, Sher- in the points three

At have Defendants would I. stated that brooke from weapons of about assortment light most in the Viewing the evidence asked to choose. When Sherbrooke verdicts, a reasonable favorable of cocaine base couple of “oz’s” much how following. have found could and him, Keith Cannon answered cost would (col- Stephanie and Cannon Keith Cannon guns parties trade that the could noted then “Defendants”), of Minne- residents lectively, parties parting, drugs. Before Minnesota, on four sold cocaine base apolis, Dakota, Fargo, North agreed to meet in Agent Sher- Special Charles to occasions following week. the West brooke, officer with an undercover scheduled, transac- The the fourth and final Force. As Drug Task Minnesota Central Fargo. Agent tape, in a motel on audio occurred at was recorded tion transaction first Special Defendants video- were introduced three transactions Sherbrooke the latter and Alco- Keating Bureau of Agent John taped. Firearms, Tobacco, posed as hol, who and for the Agent Sherbrooke Defendants met every- supplier. When firearm Sherbrooke’s Minnesota, Alexandria, when the time first introduced, De- served Sherbrooke was one in- by a confidential were introduced parties initial After some drinks. alcoholic fendants base sold cocaine Defendants formant. terms of talk, parties discussed small they were and told him Agent Sherbrooke had cocaine base for the sale parties The firearms. in acquiring interested turned then brought. The conversation again in Alexan- meet arrangements to made subject of firearms. within week. dria him firearms had with Agent Keating cocaine sold more planned, Defendants As semi-auto- including three 9 mm dufflebag, later. than a week less to Sherbrooke base .25 caliber semi-automatic pistols, two matic whether asked Defendants Sherbrooke When revolvers, .357 one two .38 obtaining pistols, caliber fire- still interested revolver, MAC-type and two magnum caliber inter- arms, again indicated and the a .45 caliber guns they machine stating that est, specifically this time —one Keating each revolvers, removed a .380 caliber. other snub nosed two .38 caliber wanted identifying it briefly bag, weapon from caliber automatic derringers, one .25 and two showing Stephanie and it to Defendants. When Keat- then asked whether the Defen- ing larger guns described the of the machine drugs dants could gun. trade for a machine rounds, capable holding agents Sherbrooke affirmatively, The answered and the Keating explained called a “neat item.” parties agreed to barter three ounces of co- gun that the smaller machine could hold 15 caine base handguns, for three the MAC- rounds. type gun, $4,600 .380 caliber machine and currency. United States exchange, After the proceeded inspect the vari- newly Defendants carried their acquired expressed ous firearms. Keith Cannon his weapons motel, out of the where law enforce- concern that the .25 caliber semi-automatic waiting. ment officers were pistol enough damage. would not inflict Agent Keating disagreed but noted it was charged Defendants were arrested and powerful guns. not as as the machine When indictment, a nine-count which included Keating explained again that larger ma- counts of distribution cocaine base and rounds, quite chine could hold a bit of conspiracy possess to distribute and to with protection business, drug for Defendants’ distribute, intent to in violation of 21 U.S.C. Sherbrooke chimed in that that was a “lot of 841(a) 846; §§ knowingly using rock and roll.” After some discussion on the carrying during firearms relation to a handguns, various makes of Defendants se- crime, trafficking in violation of 18 lected three of them. 924(c); U.S.C. knowingly and of and un- parties’ then attention turned to a lawfully possessing a gun, machine in viola- discussion on how Sherbrooke had been 922(o) 924(a)(2). §§ tion of 18 U.S.C. shorted in an earlier deal with the Defen- Keith Cannon charged being with also issue, dants. After Agent resolved that knowingly felon possession firearms, in in inquired Sherbrooke whether Defendants §§ violation of 18 922(g)(1) U.S.C. and any wanted remaining guns. Keith 924(a)(2). One count was dismissed the stated, however, said no. Keith that he Government before trial. get together wanted to Keating with later to proceeded The case in trial the United purchase type an “Uzi or some of automatic States District for Court the District of weapon.” Stephanie pointed to the machine North Dakota. pretrial Defendants filed a said, gun and explained it.” Keith “That’s indictment, motion to dismiss the contending dangers the the Defendants face on the the officers had violated Defendants’ due powerful street and said he gun needed a for process rights by artificially creating venue protection. He concluded he wanted a ma- in the District of North Dakota. Defendants gun rounds, chine with 50 get because “I alternatively moved for transfer of venue crazy sometimes.” Keith told the officers he 21(a) (b) pursuant to Rule and of the Federal purchase wanted to gun such a at their next Rules of Criminal Procedure. The district meeting. court denied these motions. also Defendants Keating Sherbrooke asked whether the moved to relating dismiss the counts to re- guns machine would be available for in sale ceiving and possessing gun the machine on replied the future. Keating expected that he grounds process of due entrapment and aas guns to sell brought he had to this meet- support motion, matter of law. of this ing to buyer another if Defendants did not Defendants referred the court to the video purchase them. Keith stated he would like tapes and audio drug and firearms purchase gun a machine at the next meet- transactions, provide but did not the court ing, again stressing the need for protecting copies tapes. Finding the evidence stated, the business. He spray- “I in believe before him support insufficient Defen- in’ everything moving.” that’s Both Defen- claims, dants’ judge district denied De- that, meantime, dants said in the the hand- fendants’ motion. guns would hold them over. Sherbrooke picked up one of guns began trial, the machine and At presented entrap- Defendants examining its Keating defense, features. noted the ment jury rejected but and gun’s rapid rate of fire. guilty returned on all verdicts counts. De- govern Because the population. posttrial Minnesota again in defense raised the fendants actions, its explanation no for for a ment offered acquittal and judgment of motions for come for (requiring government to the mo- id. denied see court The district new trial. explanation not to rebut were a neutral ward with and held that tions discrimination), sentencing, Defen At case of prima of law. facie entrapped as matter was govern- government’s conduct however, found that dants contend the entrapment have sentencing the indictment should outrageous, in and engaged had ment regard with Rus manipulation United States v. sentencing dismissed. See been 423, 431-32, charges. Accordingly, sell, gun machine mandatory, consecu- impose the not L.Ed.2d 366 court did using knowingly tive, 30-year sentence court that agree with the district during carrying a machine evidentiary sup argument lacks offense, impos- trafficking drug to a relation census, only cite the 1990 port. Defendants consecutive, mandatory, 5- ing instead consti African-Americans which found that carrying a firearm using or year sentence population percent of the Minnesota trafficking tute 2.17 to a during and relation popula North 924(c)(1). percent of the Dakota and 0.6 Defen- See 18 U.S.C. offense. not what did show tion. Defendants to 216 was sentenced Keith Cannon dant geo figures for the 60) minority are (156 population five-year + and a prison months which a Minnesota from graphic area of release, $17,500. and fined supervised term of if held picked trial had been would have been to 181 sentenced Stephanie Cannon Minnesota, minority population 60) nor (121 five-year + prison months district figures for the division release, $17,500. and fined supervised term of trial was held. North where Dakota and sen- convictions appeal their minority population in the two variance in gov- and the grounds, on numerous tences infer to create an alone states insufficient the sentences. appeals cross ernment purposefully en ence that II. to control Dakota order ticed to North composition of intentionally the racial A. VENUE Garcia, 991 F.2d v. jury. United States Cf. in drug deals occurred three The first Cir.1993) (8th numer 489, that a (stating 492 reside, and the Minnesota, Defendants where the disparity does not establish ical alone Dako- place in North took fourth transaction in selec group a systematic exclusion of Defendants, are African- of whom both ta. insufficient of process). Because tion indictment, Americans, to dismiss moved element evidence, the first do not believe their had violated claiming made out analysis has been Batson-type aof manipulating the process rights due analysis case, Batson-type if indeed in this in North Dako- venue to create transactions a transfer a motion for applicable to can be alternative, trans- they moved for In the ta. failed have therefore Defendants of venue. 21(a) (b) of pursuant to Rule of venue fer establishing high threshold for to meet the of Criminal Procedure. Federal Rules in violation conduct outrageous government mo- denied The district court v. rights. Bell Unit process due Cf. evidentiary support. tions for lack Cir.1995) (8th 1042, States, 1044 48 F.3d ed the district argue imper Defendants proof to offer (holding that failure dismiss on denying their motion to in erred in choosing prosecute motives missible v. Relying on Batson grounds. process pro finding due of due precludes forum federal 1712, 79, 90 106 S.Ct. Kentucky, violation). 476 U.S. cess (1986), facts claim the L.Ed.2d 69 challenge district also give to an inference that this case rise motions. As the Rule 21 on court’s decisions Da- them to North lured government officers matter, that venue we note preliminary a ruse to fourth transaction kota for the 18 U.S.C. Dakota under North signifi- proper district with a in a rural create venue any district 3237(a), creates venue minority population than cantly lower 1502 alleged

where the criminal conduct occurs. We afford the district court broad If, however, in controlling closing arguments, the district court discretion believed De- overturning only the lower court when it impar- fendants would not receive a fair and clearly abuses its discretion. United existing States prejudice tial trial due to in North (8th Nelson, 798, Cir.), v. 988 F.2d 807 cert. Dakota, required district court was denied, 914, 302, 510 U.S. 114 S.Ct. 21(a). transfer the trial. Fed.R.Crim.P. (1993). L.Ed.2d 250 prosecuto We examine addition, the court also could exercise its determine, first, rial remarks to whether the discretion and transfer the trial to another improper, so, remarks were fact if justice district in the interest and for the whether, trial, in the context of the entire parties. convenience of Fed.R.Crim.P. “ ‘prejudicially remarks affected [Defen 21(b). Defendants contend the district court rights, deprive dants’] substantial so as to denying its discretion their Rule 21 abused of a fair [them] trial.” United States v. motions, because, as African-American de- Malone, Cir.) 393, 49 F.3d (quoting large city, they fendants from a could not Hernandez, 779 F.2d impartial obtain a fair and trial as described — (8th Cir.1985)), denied, cert. U.S. 21(a), in Rule and a transfer of venue was in -, (1995). 116 S.Ct. 133 L.Ed.2d 141 21(b). justice, the interest of Rule If step, we reach the second we consider: “(1) agree misconduct; with the district court that these the cumulative effect of such (2) motions, strength like properly Defendants’ motions to dismiss admitted (3) process grounds, guilt; on evidence of conclusory [Defendants’] due are curative lacking evidentiary support. actions taken the trial court.” Eldridge, United States v. support 984 F.2d 946- challenges their Rule 21 with no (8th Cir.1993). more evidence than cited for their due process argument. We therefore find no prosecu We have no doubt abuse of discretion in the denial of the mo tor’s statements this case improper. tions to transfer venue. Rizzo v. United using Prosecutors must refrain from meth States, (8th Cir.) (standard ods produce wrongful calculated to convic review), denied, cert. v. United Nafie 1, 7, tion. Young, United States v. 83 S.Ct. 9 L.Ed.2d 1038, 1042, (1985). L.Ed.2d Although prosecutor “may strike hard blows, prosecutor] [the liberty is not at Referring strike foul ones.” Id. to defen B. PROSECUTORIAL MISCONDUCT people” simply dants as “bad not fur does During closing argument, his rebuttal justice ther the aims of or aid in the search prosecutor twice referred to Defendants as truth, likely and is to inflame bias in the people.” object- “bad When defense counsel jury and to result in a verdict based on improper ed to this as an reference to Defen- something other than the evidence. There character, dants’ the district court overruled fore, highly the remarks improper. were Cf. objection, the stating closing arguments that 1295, Singer, United v. States 660 F.2d 1304 argumentative. prosecutor can be then (8th Cir.1981) (finding prosecutor’s reference continued, people “There are bad in the denied, to improper), “crooks” cert. world, gentlemen. ladies and lucky We are 1156, 1030, (1982); 71 L.Ed.2d 314 where we live not to come contact with as Hall v. United 587-88 many may parts as there be in other (5th Cir.1969) (finding prosecutor’s reference country. But there are still some around to improper). “hoodlums” per We further (Tr. Closing here.” of Rebuttal Arg. by thinly ceive a appeal parochial veiled to alle 1995.) Gov’t at Jan. The remainder of giances prosecutor’s in the remarks. We closing argument the did not refer to Defen- should not have to remind an Assistant Unit dants’ character. Defendants contend the Attorney ed States that the Defendants are people” prose- reference to “bad well, constitutes citizens of the United States as and that cutorial deprived misconduct that them of a it awas court of the United States in which fair trial. proceedings being the held. The dis- say that the evidence prepared to objec- are not sustaining the by not erred triet court overwhelming that the error action. was so court’s failing take curative to tion improper comments to stand permitting the remarks to be Having the determined beyond doubt. a reasonable was harmless on the their effect decide improper, we must are entitled that the Defendants We conclude rights using three fair the trial Accordingly, all counts. we to a new trial on Eldridge. While the conduct from factor test remand. reverse and prosecutor’s final only during the occurred “ for a new reverse and misstep’ the Because we remand single on argument, ‘a rebuttal trial, unnecessary if it determine may we be so destructive deem prosecutor the part of in its was correct decision that the right fair trial reversal district the to a Solivan, entrapment sentencing and sen- v. that both States mandated.” United Cir.1991) (6th in this (quoted manipulation with had tencing occurred F.2d Johnson, may v. address those issues that States case. We do approval Cir.1992)). (8th Because trial. again arise at a second F.2d arguments, de during rebuttal came remark except respond was unable

fense counsel EVIDENTIARY CHALLENGE C. by objection. challenge the admission improper argu that We have indicated quantities four of cocaine base each of the ver likely to have affected the is less ment transaction, contending at each purchased over case the evidence is a when dict prove proper failed to a where the evidence whelming than in a ease custody. Specifically, Defendants chain of . F.2d Splain, v. States is weak United what argue government failed to show (8th Cir.1976). 1131, 1135 govern While the base between the happened to the cocaine strong enough probably evidence is ment’s laboratory a DEA mailed to time was called to be overwhelm charges on the time when a DEA forensic testing concerning the machine ing, the evidence laboratory it. tested chemist at pur predisposition to and the Defendants’ court’s deci review a district strong as to be called it is not so chase objection for evidence over an sion to admit experienced overwhelming, indeed v. an abuse of discretion. United enough he judge was convinced that district Cir.1995). Carpenter, 70 F.3d hearing sentencing found may physical evidence A admit district court acquire predisposition had no probability Sent, if court believes reasonable (“I know Tr. at 45 gun. machine not been the evidence has exists that three I heard on two or from the facts that Miller, changed or altered. United States had the Defendants different occasions (8th Cir.1993). making F.2d acquire a machine predisposition no determination, showing of bad absent this God, folks, cannot (“My gun.”); id. at will, faith, tampering, the court proof ill or meaning, capable law enforce permit well integrity for presumption operates under people to people to violate ment entice Here, only Id. physical evidence. Finally, way.”). we note that in this law occurred when change in the cocaine to sustain the judge’s defense district failure cocaine the rocks of (and pulverized DEA chemist indi objection to the remarks counsel’s failed to Defendants Because testing. closing arguments argumen are cating that of rebutting presumption the tative) any in aver facts was no curative meant there that discretion find no abuse of prejudicial integrity, the we given to neutralize struction as evidence of the cocaine base the prosecutor’s the remarks. admission of effect in this case. calling by twice the that We believe “bad people” Defendants African-American LENITY D. OF RULE the fact by calling that attention and challenge the dis also locals, prosecutor were not them not authorize trict court’s decisions jury improper and convenient gave an testimony the chemical expert on verdict, we to obtain hang and which to their hook on 1504 Johnson, (8th 1487, Cir.1994), compositions of cocaine and cocaine base. 28 F.3d — denied, U.S. -,

Initially, Stephanie pretrial applica- filed cert. 115 S.Ct. (1995), asking tion the district court to authorize L.Ed.2d 664 and Scott v. United — States, -, 1263, obtaining transcripts the costs of from other U.S. 115 S.Ct. experts (1995); cases in which had testified on this L.Ed.2d 142 United States v. Max well, (8th explained 1389, Cir.), issue. She that she intended to 25 F.3d 1396-97 cert. — denied, -, 610, heightened penalty show for co- U.S. 115 S.Ct. (1994); ignored caine base should be the rule under L.Ed.2d 519 United States v. Buck (8th Cir.1990). ner, 975, lenity, because the distinction between 894 F.2d 978-81 Furthermore, scientifically recently rejected cocaine and cocaine base is Defen 841(b) meaningless. argument § The district court denied the dants’ that 21 U.S.C. application, holding transcripts unconstitutionally vague were not and that we should necessary Stephanie’s consequently ignore heightened penalty defense because its rejected overwhelmingly provisions our court has chal- for cocaine base under the rule lenges Jackson, statutory lenity. differences sen- 64 F.3d — (8th imposed 1213, Cir.1995), denied, involving tences for convictions co- cert. -, 966, caine base and Stephanie cocaine. and U.S. 116 S.Ct. 133 L.Ed.2d 887 (1996). application, Keith then filed another not The district court therefore did not only seeking reconsideration of the decision refusing abuse its discretion to authorize regarding transcripts, request- but also requests, Defendants’ and the court’s deci ing employ chemistry authorization to ex- lenity sion not to invoke the rule of at sen pert testify tencing their trial that cocaine and was correct. thing. Citing

cocaine base are the same E. ENTRAPMENT reasoning previously denying stated in application, first the district court denied convictions, challenge their ar- request. sentencing, Defendants’ At guing that denying the district court erred in again rejected position re- judgment acquittal their motions for garding lenity. rule grounds motions for a new trial on the entrapment. disagree. represented

Defendants were each by appointed pursuant counsel to the Crimi entrapment The defense of stems (CJA), § nal Act Justice 18 U.S.C. 3006A. from a concern that law enforcement officials 3006A(a) CJA, Under subsection ade agents not should manufacture crime. quate includes, representation among other Lard, 1290, United States v. 734 F.2d things, expert “necessary services for the (8th Cir.1984). To be entitled to in defense.” If a district court finds that such entrapment structions on an theory, defen necessary beyond services are a defen dants must show some evidence that means, dant’s financial the court “shall autho government agents implanted the criminal rize counsel to obtain the services.” Id. at design in their minds and induced them to 3006A(e)(l). We afford the district court commit the offense. United States v. El deciding wide discretion in ap whether the deeb, Cir.), 20 F.3d cert. de pointment experts would aid defendants —nied, -, 115 S.Ct. preparing presenting adequate de (1994). L.Ed.2d 187 Once defendant has Moss, fense. United States v. showing, made this then has (8th Cir.1976), denied, cert. 429 U.S. proving the burden of the defendant 50 L.Ed.2d 797 predisposed crime, to commit apart

We find no abuse the district government’s court’s from the inducement. Jacob conclusion that expert testimony sought 540, 553-54, son v. United unnecessary. here was As the district court 118 L.Ed.2d 174 observed, rejected repeatedly our’ court has inquiry concerning An predisposition challenges constitutional upon to the difference in “focuses whether the defendant was an penalties or, involving unwary instead, unwary convictions cocaine innocent an See, e.g., readily cocaine base. v. United States criminal who availed himself of the

1505 meetings or- subsequent and even crime.” Math terest perpetrate to opportunity They types handguns. of particular 108 dered v. United ews (internal (1988) Dakota, meeting in 883, 886, agreed to a North L.Ed.2d words, omitted). there, pur- “deter specific purpose In other of quotations drove requires predisposition drug mining handguns conjunction a defendant’s with a chasing personal facts, of defendant’s they examination were Under these transaction. con he sits on the “where background to see matter of law. judgment a as a not entitled to offender and first the naive tinuum between they if were argue that even v. United States habitue.’” the streetwise firearms, purchase there is no predisposed Cir.1994) (8th Kummer, 1455, 1459 F.3d pur predisposed to that were evidence 1293). Lard, F.2d at (quoting govern gun prior to the a machine chase jury a Entrapment generally is guns to the bringing of the machine ment’s F.2d Pfeffer, 901 v. United States question. the circumstan Fargo meeting. We believe Cir.1990). (8th may trial court The for a in this case is sufficient evidence tial however, when acquittal, of judgment a enter were jury to reasonable conclude the elements clearly establishes the evidence any government independent of predisposed, law. Id. a of entrapment as matter inducement, gun. machine See possess law a matter of entrapment as elements Kummer, v. United States “(1) originated agent government that a are: Cir.1994) factors, (8th (listing some of 7n. (2) im agent design; that the the criminal evidence, courts circumstantial involve person the innocent in the mind of an planted determining whether a considered have (3) offense; and to commit the disposition crime).1 predisposed to commit defendant the criminal committed the defendant that closely clearly engaged in agent.” urging of at the act i.e., they activity, came to criminal related light most in the Id. We view facts purchase firearms ille Fargo specifically to only reversing government, to the favorable ongo engage in established gally and to have reached jury could no reasonable when tools trafficking, firearms are ing drug where Id. guilty verdict. in this case con The record the trade. in this Considering the evidence drug gun is a that a machine evidence tains dispose Defendants’ ease, easily can A possession. reason prized most dealer’s judg to a they were entitled contention Defen conclude jury could therefore able charges. of law on as a matter ment continuum to a much closer dants are on then- overwhelmingly proves The evidence naive first offender. habitue than a streetwise drugs, then- to traffick predisposition dur Additionally, comments Keith Cannon’s having been about statements own recorded firearm transac negotiations of the ing the drugs quantity of a sizeable robbed Defen tion, protect stressing the need criminal already established past reveal their indicating they drug operation and dants’ govern prior to the drug-dealing proclivity (a weapon ca power more fire even wanted sting operation. ment’s rounds) the available holding than pable of offered, in the Defendants’ reveal firearms difficulty disposing also have no gun and the possessing machine terest handgun argument as Considering this cir to obtain one. intent 924(c) charges. Within on the verdicts evidence, could a reasonable cumstantial transaction, the De minute of the first first step of con take the small inferential indeed acquiring interest indicated their fendants predisposed cluding Defendants were in- They reiterated specific firearms. (4) charged; defendant's he is for which "Among have looked the factors lower courts 1. (5) defendant pre- reputation; and the conduct determining defendant was to in whether negotiations with the undercover (1) readily during the defendant disposed are: whether Dion, offered; (2) (citing agent.” United States Id. responded to the inducement Cir.1985), conduct; on other rev'd 687-88 illegal F.2d surrounding the circumstances grounds, 476 U.S. (3) engaged whether defendant 767,(1986)). crime L.Ed.2d existing similar to the course of conduct 1506 from,

obtaining gun independent any a machine entrapment. the defense of Both de government inducement. frequently fenses prosecutions arise in re sulting sting from and reverse-sting opera F. OUTRAGEOUS GOVERNMENT CON- entrapment defense, tions. Unlike the DUCT DEFENSE however, which focuses on the Defendant’s crime, predisposition to commit the the out challenge Defendants also frame their rageous government conduct involving defense focus gun the convictions the machine government’s Kummer, es on the conduct. process, contending a violation of due that 15 F.3d at 1459 n. 9. outrageous the officers’ conduct was so the district court should have dismissed vexing question before us is The counts six and seven of the indictment. Ac where the investiga line lies between covert Defendants, cording to selling them a ma tive conduct law enforcement officers that specifically chine when had not bounds, is within constitutional and which is process asked for one violated their due every sting inherent and reverse-sting op rights, because officers’ conduct was “ eration, outrageous and conduct that is ‘so solely increasing aimed at Defendants’ sen shocking that it exceed[s] the bounds of years.2 tence for count six 25 See 18 ” fundamental fairness.’ United States v. 924(c) (30-year § mandatory U.S.C. consecu (8th Cir.) Huff, 731, 959 F.2d (quoting 734 using carrying tive sentence for or a machine Johnson, 1259, United States v. 767 F.2d gun in drug trafficking; relation to a crime of (8th Cir.1985)), denied, 1275 cert. 506 U.S. 5-year Russell, handguns); sentence for see 855, 162, (1992), 113 S.Ct. 121 L.Ed.2d 110 (ac 411 at U.S. S.Ct. 1642-43 States, 855, 113 and Love v. United 506 U.S. knowledging possibility government 162, 121 (1992). S.Ct. L.Ed.2d finding outrageous conduct so fundamentally un “ line, keep we must in mind that ‘[t]he process fair principles that due would bar the of outrageousness level prove needed to defendant); conviction of a Hampton v. process due quite high, violation is and the 484, 491-500, government’s conduct must shock the con 1646, 1650-55, (1976) 48 L.Ed.2d 113 ” science of the court.’ United States v. Jen (majority Court, Supreme concurring sen, (8th Cir.1995) 69 F.3d (quoting dissenting opinions, agreeing that outra Pardue, United States v. 983 F.2d geous government may conduct defense exist — (8th Cir.1993)), denied, -, cert. predisposed for a defendant to commit a L.Ed.2d 669 Fur crime). “ ther, we have noted go very that we ‘should government, hand, on the other slowly staking before out rules that will deter argues process that no due violation occurred government agents proper perfor from the government this case. The urges further ” mance of their investigative duties.’ Unit this court unduly not to constrain law en Barth, (8th ed States v. 990 F.2d by limiting forcement officials buy them to or Cir.1993) (quoting Connell, United States v. only sell what specifically request defendants (1st Cir.1992)). 960 F.2d We have by placing or a burden on the also investigative stated “that officers and set every forth step motives each and agents may go long way in concert with the law enforcement activities. The district question individual in being without deemed court denied Defendants’ motion to dismiss outrageously have acted so as to violate counts six and seven of the indictment on due process_” Kummer, due 15 F.3d at 1460 process grounds. question We review this (quoting Quinn, United States v. 543 F.2d law de novo. United Dougherty, States v. (8th Cir.1976)). thorough After re Cir.1987). briefs, view of the record and the keep outrageous

The defense of govern ing in mind the principles, above we conclude to, ment conduct is similar though distinct the officers’ conduct in this case was not so seven, 2. Defendants were also term, however, convicted of count mandatory not prison contain a unlawfully possessing gun, a machine in viola- so our discussion focuses on the 18 U.S.C. 922(o). § tion provision 924(c) of 18 U.S.C. This charge. does weapons. any of the other guns maehine or the constitu- crossed over shocking that it kept the simply conversation The officers process due line, violating Defendants’ tional to Keith Cannon’s ex- going responded not to in this case are fortunate rights. We having enough pressed concern about fire haveWe a record. from cold to work have protect adequately Defendants’ power to view to opportunity the ourselves availed provided Defen- drug The officers business. drugs-for-guns actual tape of the video the purchase to a opportunity more dants carefully. it have studied transaction weapon. do note the officers powerful We act of agents’ at the first We look that he to Keith’s indication would responded than other of firearms offering a selection gun with a 50- purchase to a machine like requested. This had type Defendants the meeting by indi- capacity at the next round shocking. outrageous nor neither conduct may gun not be avail- cating that a machine on numer the officers had told Defendants however, then; in the context of able the to obtain wanted ous occasions conversation, not so outra- this conduct request had Although Defendants firearms. pro- Defendants’ due geous that it violated weapons, Officer Sherbrooke particular ed technique to a rights. It seems to us be cess supplier that his told Defendants thrice viz., buy commonly by salespersons, used this weapons of about 15 bring a selection would someone else does. Like product now before fi their could make which Defendants from court, that if the de- we believe the district object to did not nal choices. buy not to a machine had decided fendants tacitly agreed to procedure and at least this politely ac- officers have gun, the “would circumstances, find noth we it. Under these 328.) (R. Because “the mere quiesced.” at surprising shocking, outrageous, or even ing of contraband to the one sale weap providing a selection officers’ to buy it” does not amount a predisposed to offi believe the willing buyers. to ons violation, Dougherty, 810 F.2d process at due limits of the to permitted test cers were not, leading the sale was conduct to willingness acquire firearms to Defendants’ itself, outrageous. just not limited general and were illegally of fire If the selection bringing filling customers’ order. to conducting meeting them arms literally at the of Having looked not officers did do violate the selves as the again techniques, we salesmanship question process rights, ficers’ due process violation oc due pun that no conclude the difference then becomes whether in displayed their The Defendants penalty curred. between the ishment consecutive by their guns in the two machine handguns the Defen using carrying terest or They years) an intent first indicated for 5 request comments: (imprisonment dants did future; they ex using carrying buy a machine or penalty heavier and the protect help years) gun (imprisonment need for one for 30 plained their machine outrageous. enterprise; and Keith Cannon See officers’ conduct makes the 924(c)(1). argue a machine purchase he wanted 18 U.S.C. indicated magazine They at the next have us decide this would gun with 50-round does. comments, that measures the using sliding we do not light these scale case deal. constitutionality government conduct initially de the officers’ believe conduct— appropri has deemed noting Congress guns penalty and then scribing machine to do crime. We decline particular shock guns ate for positive attributes of —is alleged analyzing the judicial role in did not so. Our outrageous. officers ing or to mea conduct is outrageous government persuade tactics to use hard-sell or coerce against the constitu actions sure the officers’ gun. The purchase machine Clause, not Process limits of the Due tional officers’ effort court described the district penalties 329.) plays under (R. ease out officers as the did the Nor “soft-sell.” agents’ by Congress.3 Because prescribed price of the or the misrepresent the nature Stavig, 80 F.3d abuse. United States re- tial for recently discomfort with reiterated 3. We our 1996). troubling case is This poten- Cir. great verse-sting operations, have unconstitutional, not correctly conduct itself was instructed the on the properly that the district court re- conclude elements of the crime charged in count six (using carrying fused to dismiss counts six and seven of during firearms and in grounds. crime) process drug indictment on due relation a trafficking to in In- jury

struction No. 20. The was told that the crime had two elements: “One: that a defen- G. JURY INSTRUCTIONS dant committed the crime of distribution of a substance, Jury Entrapment 4: 1. Instruction No. controlled as defined these in- structions, drug crime; trafficking argue Defendants next that the Two: that a knowingly defendant used and erroneously district court submitted the issue during carried firearms and in relation to the jury jury of inducement instruct commission of either of those crimes.” The Although a pro ions.4 defendant who has jury government was further told that duced evidence of inducement is entitled to prove beyond had to both elements a reason- jury accurately stating instructions as a able doubt and also had prove to that a entrapment, whole the law of the defendant defendant was entrapped. not The court right particularly has no worded instruc jury then defined for the in Instruction No. Parker, 395, tions. United States v. 32 F.3d meaning one for “use.” Instruction No. (8th Cir.1994). jury The instruction in “An stated: individual exchanges who case, this Eighth which was based on the controlled substance for a firearm ‘uses’ the 9.01, Circuit Model Criminal Instruction No. during firearm and in drug relation to a correctly states the law of our circuit. Unit trafficking challenge crime.” Defendants Aikens, ed grounds. this instruction on two Cir.1995), vacated and remanded for recon First, Defendants contend that Instruction States, light Bailey sideration v. United — 21 improperly required No. jury to find U.S. -, 116 S.Ct. L.Ed.2d 472 - jury “use” if parties found the had bar (1995), -, 116 S.Ct. drugs tered for support firearms. To their (1995). instructions, L.Ed.2d 516 The when argument, rely Supreme on the whole, properly viewed as a focus on the Court’s use of “may” the word in Smith v. question predisposition of Defendants’ States, place government prove the burden on the 124 L.Ed.2d 138 specifi beyond that element a reasonable doubt. cally quote from “[U]sing Smith: a firearm in a guns-for-drugs may trade constitute Jury 2. Instruction No. 21: Use of Fire- ‘us[ing] a firearm within meaning arm ” 924(c)(1).’ § Id. at 113 S.Ct. at 2058 argue added). Defendants also the district court (emphasis Defendants contend this in overruling objections erred Jury- language every means that not trade of a concerning Instruction No. 21 charges drugs drugs guns for or necessarily 924(c), § under 18 prohibits U.S.C. use of the firearm meaning within the using carrying 924(c), of a during § firearm and in and the must decide whether drug relation to trafficking crime. The or not “use” has occurred. exception. Drawing crime, no the line between consti- entrapped. then that defendant was tutional, zealous law enforcement in the "war hand, On the other if a defendant did have a against outrageous, crime” and unconstitutional previous disposition intention or to commit the conduct that offends the fundamental fairness of charged, crime then that defendant was not system easy great our is no task. Because of the entrapped, though even law enforcement offi- potential situations, urge for abuse in these we agents provided cers op- or other a favorable giving district courts to continue them the most crime, portunity to commit or made com- scrutiny probing careful examination. Id. easier, mitting participated the crime or even in acts essential to the crime. Jury

4. Instruction No. 4 reads as follows: entrapped, If a defendant was he or she must any previous If either defendant did not have guilty. be found not disposition intent or has the commit the crime charged, persuaded proving beyond and was induced or burden of law a reasonable doubt agents enforcement officers or their to commit entrapped. that the defendant was not a firearm violation one “receives” overlook when believe the 922(a)(3) prohibiting the trans- (generally § “We holding in Smith: Supreme Court’s receipt a firearm in the state port into or his trades who a criminal hold that therefore if the firearm person’s residence during and drugs ‘uses’ firearm by an unlicensed state obtained outside that within trafficking offense to a relation Hence, that a are of the view person). 924(c)(1).” Id. § meaning of in violation of “use” a firearm person can Furthermore, re Court at 2059. 924(c) in a by “receiving” the firearm under issue of “use” cently revisited — exchange as weapon well drugs for 924(c) Bailey v. United U.S.C. in one’s tendering weapon consideration L.Ed.2d -, 116 S.Ct. U.S. drugs trade ala Smith. gun for gun for of a (1995), the barter stated that and meaning of the within drugs is “use” challenge Jury Instruc to In their second — at -, 924(e). 116 S.Ct. Bailey, U.S. § similarly contend tion No. requires that explaining “use” After at 505. erroneously removed the instruction that the employment, showing active “during some and jury’s consideration the the from understanding of this 924(c). that reiterated § Court Defen relation to” element in Id. at bartering a firearm. includes the term in correctly that the state dants in err -, at 508. 116 S.Ct. only the “use” prove to not this case had distinguish be by failing to analysis in element, “during and relation but also the legal conclu finding and a a factual tween trafficking” ele drug ... ... a crime of to a firearm finding of whether sion; the factual Smith, at 113 S.Ct. ment. drug particular in a of barter an item became in to” “during and relation 2058-59. The at jury, the for the but matter is a transaction of the district was element two element one legal question, finding is a that effect of marshaling No. 20. instruction The court’s According to the Smith, that Smith however, resolved. that Supreme Court held Bailey, Smith stands explanation Court’s weapons and bartering of contemporaneous (not factual mere legal proposition the for to the during and relation is use firearms is “use” bartering a firearm that possibility) crime, firearms trafficking because the 924(c). § under part of during integral and are an traded are 238, 113 at 2058. Id. at transaction. S.Ct. the differs that this ease note We to the here submitted district court The a defen Smith in that involved from Smith the Defendants of whether jury the issue Defen drugs, trading a for whereas dant also instructed drugs weapons and drugs for traded case traded their in this dants Smith, effect, if under legal jury on the with this is a distinction guns. believe We place. trade had taken 924(c) jury found such prohibits Section a difference. out facts, in the find no error we these during and in Under carrying a firearm using or concerning ele- court’s Be instruction drug trafficking.” district to “a crime relation 924(c). § 18of U.S.C. a crime ments is as much selling base cause cocaine base, buying drug trafficking as cocaine from case This differs “ bartering,” certainly includes ... and ‘use’ — Gaudin, U.S. -, — at -, at Bailey, S.Ct. U.S. (1995), an element where L.Ed.2d 924(c) holding the Smith § and that believe from the entirely withdrawn itself crime of this to the facts equal force apply with Here, all by the court. jury decided machine “used” the The Defendants case. “uses” to the term define judge did was trial agents that they to proposed gun when said Supreme Court just what the mean for the drugs be traded the Defendants’ way meant, much the same weapons obtained the weapons, then jury “machine like terms for defined trade. persuad or “induced “possession,” gun,” responsibility had the Smith, still Supreme Court looked ed.” all of the not each whether or 924(d) term scope of the decide define the help § be proven been had of the crime 924(c). and note elements do the same §in “uses” It had 924(d)(1) still doubt. a reasonable yond a firearm under one “uses” actually happened in decide what amounts motel to distinction without a difference. Op. room between the Defendants and the offi- at 1510. The court concludes that the cers, and whether or not either guns meaning Defendant Cannons used the within the used a firearm violation of the statute. proposed statute “when

agents drugs that the Defendants’ be traded H. CONGRESS’S POWER UNDER COM- weapons, weap- and then obtained the MERCE CLAUSE ons in I trade.” Id. believe this conclusion “ goes beyond ‘ordinary or natural’ mean- argue Congress next ex ing” of the term “use” and allows for a power ceeded its under the Commerce 924(c)(1) conviction under section without §§ Clause when it enacted 21 U.S.C. 841 and employment “active of the firearm” 924(c). argument This is foreclosed Unit — Bailey, -, defendant. U.S. at Brown, ed States v. holding prohibited by S.Ct. 506. Such a — denied, Cir.1995), -, cert. Supreme interpretation Court’s recent L.Ed.2d 1095 924(c). the term “use” in section Id. We have considered remaining Looking guidance, to Smith for the Su arguments and find them to be either with- preme recently Court reiterated “[t]he that by out merit or moot the reversal. word in given ‘use’ the statute must be its ‘ordinary meaning, or meaning natural’ var III. iously defined as ‘[t]o convert to one’s ser judgments We reverse the of the district vice,’ of,’ employ,’ ‘to ‘to avail oneself and ‘to prosecutor court because the engaged in mis- ” carry purpose out a or action means of.’ conduct, depriving the Defendants of then- — Bailey, at -, U.S. 116 S.Ct. at 506 right to a fair trial. We remand the case for Smith, 229, (quoting 508 U.S. at 113 S.Ct. at a new trial as to both Defendants in accor- (citing 2054 Webster’s New International opinion. dance with this Dictionary (2d English Language 2806 ed.1949) Dictionary and Black’s Law GIBSON, R. Judge, JOHN Circuit (6th ed.1990))). holding The central of Bai concurring part dissenting in and part. in —ley, at -, U.S. 116 S.Ct. at 506- I in holding prosecutorial concur that 509, is that the must show active compels misconduct a new trial in this case. employment of the firearm so as to establish respectfully I part from dissent that 924(e). use under section The Court stated opinion regarding court’s the “use” of fire- that question Smith faced the of “whether 924(e) (1994). arms under 18 U.S.C. ‘use,’ the barter drugs of a for was a and — concluded that jury Bailey, The district court it was.” instructed the that U.S. at -, exchanges “[a]n individual who 116 S.Ct. 505. controlled at The Court then specifically bartering substance for a firearm referred ‘uses’ the “with a firearm fire arm,” -, during 507, in id. and relation to a at at trafficking S.Ct. “bartering” firearm, at -, materially offense.” I believe this id. misstates S.Ct. law, 508, at language directs a verdict on the firearm denotes that the ob charges. ject bartered, used, and thus was the fire arm. today

The court approves this instruction by expanding Supreme Smith, holdings Court’s at U.S. 113 S.Ct. at States, in Smith v. United trading U.S. 113 held that drugs a firearm for was (1993), S.Ct. 124 L.Ed.2d 138 using and Bai the firearm meaning within the of sec- — ley U.S. -, 924(c). v. United 116 S.Ct. tion drawing conclusion, In this (1995), 924(d) 133 L.Ed.2d 472 neglecting Court turned to section for assistance 924(c). the distinction using between interpreting firearm to in section Id. at drugs obtain using drugs to obtain a 113 S.Ct. at 2056-58. The Court noted that opinion, firearm. In its the court states that transports, exports, sells, “one who or trades trading drugs guns trading instead of a firearm ‘uses’ it meaning within the guns drugs, Smith, 924(d)(1) as was the case section though those actions —even ing with the firearms hand. weap- the motel as a using the firearm not involve do Further, actively employed the the Cannons at 2057. While on.” Id. at firearms, thing there drugs the same in order to obtain must mean “using a firearm” 924(d). 924(c)(1) an active and section no “evidence sufficient show was both section employment of the firearm defen Id. — at -, Bailey, U.S. S.Ct. dant.” fact that today on the relies Thus, did not “use” the 506. the Cannons 924(d) when for forfeiture provides section meaning of section firearms within weapon from outside receipt of a “unlicensed 924(e)(1),6 court erred in and the district 922(a)(3),” State, in violation section instructing exchanging a con addition, may also oc- forfeiture occurs. a firearm constituted substance for trolled firearms stolen one receives cur when “use” of a firearm. Smith, See 922(j). of section violation *, n. *. at 2057 n. at 234 on this issue I would reverse and remand illegal firearm Certainly, one who receives as well. weapon under section forfeit must 924(d). however, support for This, no offers receiving a firearm

concluding person that a firearm drugs exchange for “used” 924(c), so as to meaning of section within sentence, mandatory minimum require a question years. This not the thirty here Smith, Henry; DOUGLAS; can- a conclusion Allen and such Michael Carol decided Shelton, scrutiny light of the Court’s Plaintiffs— not withstand Deena Bailey. Appellants, ruling in 234-35, Smith, at at 508 U.S. 924(d)5 in 2056-57, section examined all of capac BROWNELL, his official Robert selling, exporting, transporting, deciding that Clive; Mayor City ity James as of the of the mean trading all “use” within were capacity Wine, in his official C. 924(d)(1). This is consistent ing of section City Clive; city attorney Dean of the - at -, Bailey, with capacity Dymond, as Chief in his official these activities as each of City City Clive; Police of the Clive of a fire employment” “active involves City City Council, of Clive as: Sued arm. Clive, IA, City Council; of Defendants— holding in Smith Bailey constrains the Appellees. interpretation used the broad prohibits No. 95-2234. Bailey only Smith today. can the court express Smith by limiting to its reconciled be Appeals, States Court has a firearm holding: person who When Eighth Circuit. drugs, exchange firearm trades used the firearm obtain person has 1995. Dec. Submitted simply cannot stand for drugs. The case July 1996. Decided proposition. of this converse drugs that possessed here The Cannons receiving the firearms. After traded for

firearms, they promptly arrested leav- were trafficking I offense. to” a weapons and in relation receipt from outside

5. Unlicensed only detail because the receipt two issue in stolen firearms do not treat this state and resulting weapon exchanging drugs person offenses numerous direction that a court’s Smith, Court in considered during forfeiture and and in relation to for a firearm uses *, n. *. S.Ct. at 2057 at 234 n. essentially a ver- drug trafficking directs offense plainly error. government, which is dict for the said that that it be I also believe cannot 6. "during the firearms used or carried Cannons

Case Details

Case Name: United States v. Stephanie Cannon

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 10, 1996

Citation: 88 F.3d 1495

Docket Number: 95-1996, 95-1997, 95-2233

Court Abbreviation: 8th Cir.