United States v. Esnel Isnadin ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 12-13474
_________________________
D.C. Docket No: 0:12-cr-60018-WPD-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESNEL ISNADIN,
KAMENSKY GUSTAMA,
JOLENS CIUS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(February 12, 2014)
Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR, * District Judge.
PROCTOR, District Judge:
*
The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
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It has been said the first rule of modern warfare is, “Don’t bring a knife to a
gun fight.” In this case, an undercover ATF 1 agent made contact with two of the
Appellants in this case, Jolens “Blunt” Cius and Kamensky Gustama, and offered
them an opportunity to rob a stash house.2 In doing so, the agent made clear that
those who guarded the controlled substances were armed. Therefore, when Cius
and Gustama explored alternative approaches to an armed robbery, the agent
offered a similar warning about the need for weapons: “You got to [expletive
deleted] rob them, bro.” At trial, Cius and Gustama, along with their co-Appellant
Esnel Isnadin, claimed they were entrapped. This appeal follows their conviction
on some, but not all, of the charges in the indictment.
Cius, Gustama, and Isnadin raise a number of challenges to their respective
convictions. Cius and Gustama 3 contend that the district court’s response to a
question posed by the jury instructing them to consider the entrapment defense
separately and individually as to each count was erroneous. Gustama also argues
that the evidence was insufficient to support his convictions and that he was
entrapped as a matter of law, and thus the district court erred in granting his
1
Bureau of Alcohol, Tobacco, Firearms, and Explosives.
2
The “Appellants” in this case are Cius, Gustama, and Esnel Isnadin.
3
Gustama has moved to adopt relevant portions of Cius’s brief and reply brief outlining
these arguments. The Court GRANTS that motion and will address the subject arguments as to
both of these Appellants.
2
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motions for a directed verdict. Additionally, Isnadin maintains that his convictions
should be vacated because he was a victim of derivative entrapment. After
thorough review, and with the benefit of oral argument, we conclude that (1) the
district court did not abuse its discretion when it instructed the jury to consider
entrapment separately as to each count, and (2) sufficient evidence supports the
convictions. Accordingly, we affirm.
I. BACKGROUND
A. Procedural History
In March 2012, a federal grand jury in the Southern District of Florida
returned a nine-count superseding indictment. Count 1 of the superseding
indictment charged the Appellants Cius, Gustama, and Isnadin, and their co-
defendant Marcus McKnight with conspiracy to commit a Hobbs Act robbery, in
violation of 18 U.S.C. §1951(a).4 Count 2 charged Cius, Gustama, Isnadin, and
McKnight with conspiracy to possess with the intent to distribute five kilograms or
4
Title 18 U.S.C. § 1951(a) states in relevant part:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to
do, or commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title or imprisoned
not more than twenty years, or both.
18 U.S.C. § 1951(a) (2006).
3
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more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 5 (b)(1)(A), 6 and 846. 7
Count 3 charged them with attempting to possess with the intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846. Count 4 of the superseding indictment further charged Cius, Gustama,
Isnadin, and McKnight with conspiracy to use and carry a firearm during and in
relation to the crime of violence charged in Count 1, and during and in relation to
the drug trafficking crimes charged in Counts 2 and 3, in violation of 18 U.S.C. §§
924(c)(1)(A) 8 and 924(o).9 Count 5 charged them with carrying a firearm during
5
Title 21 U.S.C. § 841(a)(1) provides in relevant part that “[e]xcept as authorized by this
subchapter, it shall be unlawful for any person knowingly or intentionally…to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance. . . .” 21 U.S.C. § 841(a)(1) (2006).
6
Title 21 U.S.C. § 841(b)(1)(A) establishes the penalties for a violation of § 841(a),
which are dependent upon the type and amount of the controlled substance.
7
Title 21 U.S.C. § 846 states that “[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. §
846 (2006).
8
Title 18 U.S.C. § 924(c)(1)(A), provides in relevant part:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking
crime that provides for an enhanced punishment if committed by
the use of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime…be sentenced
to a term of imprisonment of not less than 5 years. . . .
4
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and in relation to the crime of violence charged in Count 1, and during and in
relation to the drug trafficking crimes charged in Counts 2 and 3, in violation of 18
U.S.C. §§ 924(c)(1) and 924(c)(2). 10 In Counts 6, 7, 8, and 9, Cius, Gustama,
Isnadin, and McKnight, respectively, were individually charged with one count of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).11
18 U.S.C. § 924(c)(1)(A)(i) (2006).
9
Title 18 U.S.C. § 924(o) states that:
A person who conspires to commit an offense under subsection (c)
shall be imprisoned for not more than 20 years, fined under this
title, or both; and if the firearm is a machinegun or destructive device, or is
equipped with a firearm silencer or muffler, shall be imprisoned for any term of
years or life.
18 U.S.C. § 924(o) (2006).
10
Title 18 U.S.C. § 924(c)(2) provides that “[f]or purposes of this subsection, the term
‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46.” 18 U.S.C. § 924(c)(2) (2006).
11
Title 18 U.S.C. § 922(g)(1) provides that:
It shall be unlawful for any person…who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year…to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(1) (2006).
5
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Cius, Gustama, and Isnadin each pleaded not guilty to all counts and went to trial.
McKnight entered a plea of guilty to Counts 1 and 5.12
At the close of the prosecution’s case and at the close of all the evidence, the
court denied the Appellants’ motions for judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29. The prosecutor and the Appellants’ respective
trial counsel discussed the entrapment defense during their closing arguments. The
prosecution objected to the Appellants’ requested entrapment instruction but did
not object to the court giving the jury the standard entrapment instruction. See
Eleventh Circuit Special Pattern Jury Instruction (Criminal Cases) 13.2 (2010).
The district court gave the pattern instruction, explaining to counsel that it better
stated the law. In addition to providing the standard entrapment instruction, the
district court also gave the pattern instruction regarding how to consider the
different counts and the different defendants named in the indictment. See
Eleventh Circuit Basic Instruction (Criminal Cases) 10.4 (2010).
The jury found Cius guilty as to Count 2 of a lesser included offense
involving 500 grams or more of cocaine; guilty as to Count 4; and not guilty as to
Counts 1, 3, 5, and 6. The jury found Gustama guilty as to Count 2 of a lesser
included offense involving 500 grams or more of cocaine; guilty as to Count 4; and
12
McKnight was sentenced to 24 months of imprisonment as to Count 1, and a
consecutive 60 month term as to Count 5, for a total sentence of 84 months.
6
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not guilty as to Counts 1, 3, 5, and 7. The jury found Isnadin guilty as to Count 2
of a lesser included offense involving 500 grams or more of cocaine; guilty as to
Counts 4, 5, and 8; and not guilty as to Counts 1 and 3.
Cius, Gustama, and Isnadin now raise several issues on appeal. Before
analyzing the merits of their arguments, it is necessary to outline in some detail the
underlying facts leading to the Appellants’ arrests, the district court’s original
instruction, and the district court’s supplemental instruction regarding entrapment,
which was given in response to the jury’s question about whether entrapment as to
one count should affect its verdict as to the other counts.
B. Government’s Evidence at Trial 13
The Government’s evidence at trial tracked the ATF’s undercover operation
from the initial contact and meetings with Cius and Gustama through the day of the
Appellants’ arrests.
1. The ATF’s Undercover Operation
The Appellants’ arrests on January 11, 2012 resulted from an undercover
sting operation conducted by the ATF. Special Agent Michael Connors testified as
the Government’s first witness. He explained that the ATF uses sting operations to
identify and apprehend individuals who are experienced in conducting home
13
The Court, of course, considers the facts underlying the Appellants’ convictions in the
light most favorable to the United States. See United States v. Simpson, 228 F.3d 1294, 1298
(11th Cir. 2000).
7
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invasion robberies. In this case, Agent Connors posed as a disgruntled courier for
a Mexican drug trafficking organization that was looking for an experienced crew
to rob 15 to 20 kilograms of cocaine from a stash house in Broward County,
Florida.
a. Initial Communication with Cius
Cius called Agent Connors on December 17, 2011, after a confidential
informant provided him with Agent Connors’ phone number. 14 Agent Connors
stated that he did not want to discuss anything over the phone and told Cius he
would call him back the following week.
b. December 20, 2011 Meeting with Cius and Gustama
Agent Connors called Cius on December 20, 2011 and arranged to meet him
later that afternoon in the parking lot of a Perkins restaurant off the Florida
Turnpike.15 Agent Conners arrived first. Shortly thereafter, Cius arrived,
accompanied by Gustama. Gustama was driving the car, and Cius was in the front
14
The December 17, 2011 conversation was recorded and played for the jury, and the
district court admitted the recording as Government Exhibit (“GX”) 1A and the transcript as GX
1B.
15
The December 20, 2011 conversation was recorded and played for the jury, and the
district court admitted the recording as GX 2A and the transcript as GX 2B.
8
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passenger seat. Agent Connors entered their car and sat in the rear passenger
seat. 16
Agent Connors told Cius and Gustama that he had a trucking company, and
that once a month for the past year, he had worked as a courier for a Mexican drug
trafficking organization, picking up “one or two bricks”17 a month from various
houses and transporting the bricks “up north.” Agent Connors told them that 15 to
20 kilograms of cocaine were always in the house. He explained that he was
usually the first courier to arrive at the house, and that after he picked up his two
kilograms of cocaine, the remainder of the cocaine would still be there. Agent
Connors told Cius and Gustama that he was upset because the drug traffickers had
not paid him what they had promised, and he was “looking for, you know, a crew
to knock them off.” Agent Connors stated that he wanted five kilograms of
cocaine as his share from the robbery. Agent Connors added that he had never
seen money in the stash houses, “just coke.” Cius asked Agent Connors to
confirm the quantity of cocaine, and Agent Connors repeated, “15 to 20.”
Gustama asked, “Where’s it at though?” to which Agent Connors answered
that the stash houses’ locations changed from month to month. Agent Connors
told them that the drug traffickers used different vacant houses with lock boxes on
16
The conversation inside the car was recorded and played for the jury. The district court
admitted the recording as GX 3A and the transcript as GX 3B.
17
“Bricks” is a slang term for kilograms of cocaine.
9
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the doors. Agent Connors explained that although the location of the houses
changed, the cocaine was always guarded by the same two men, Carlos and Richie.
Agent Connors told Cius and Gustama that he usually received a phone call from
the drug traffickers around 7:00 p.m. or 8:00 p.m. with the address of the house
where he was to pick up the cocaine. Gustama asked if anyone would be inside
the house, and Agent Connors replied that Carlos and Richie would be inside, and
warned that “they’re always strapped,” meaning that the guards were armed with
guns.
Cius asked Agent Connors, “How can we get to the, um, them bricks?”
Agent Connors replied that the bricks of cocaine were “just out there.” Cius asked
whether the guards ever left the cocaine “at the house alone.” Agent Connors
replied that the guards left the house only after all of the cocaine had been picked
up by the other couriers. Gustama asked whether the guards were “always
strapped?” Agent Connors replied: “Yeah. The same two guys. I don’t know if
this is something y’all can do or not or if it ain’t, you know, just uh, you know, we
never met and just leave it at that.” Cius replied, “I don’t know. I don’t know.”
Gustama explained: “We don’t want to do that for nothing, you feel me. We don’t
want to do all that for nothing.” Agent Connors told Cius and Gustama that the
drug traffickers “wouldn’t call if the dope wasn’t in there because the only reason
they call me is to pick the [cocaine] up to put in my truck.” Gustama asked
10
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whether they could “get the bricks without them knowing,” and Agent Connors
told him, “You got to [expletive deleted] rob them, bro” and “you got to tie me up
or whatever.” By saying this, Agent Connors wanted to make it clear that he was
looking for a crew to conduct an armed robbery, because the purpose of the sting
operation was to identify violent home invasion robbers. Agent Connors told
them: “I ain’t gonna shoot you all or whatever. But whatever they do is on them. I
mean, if you don’t know how to do this [expletive deleted] then, you know, take
care of business the way you normally would. I don’t care.” Gustama replied, “I
see what you’re saying.”
Agent Connors reiterated that the “bricks” were “always wrapped up tight”
and that the two guards would be armed with “pistols.” He said that they would
not have to “go looking through the house” for the cocaine because “it’s right
there.” Gustama asked, “Where’s it at?” and Agent Connors replied, “It’s always
on the first floor.” Cius and Gustama then asked about other ways to steal the
cocaine (“We can’t hit somebody he sell it to or something?” and “How about
when it’s coming in?”). Agent Connors explained that he had no idea where the
cocaine would be located until he received the call with the address of the stash
house:
Connors: So as soon as I get the address, you can all go ahead of me, take
a look at it so you can, you know, check it out first or whatever.
You go in behind me, I mean you got to, you know – if it’s
even something you can handle, you know.
11
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Gustama: Yeah, we’ll do that.
Connors: I mean, how many people you think you need to do that?
Cius: About three people really.
Connors: Just – just make sure if you do, just keep this tight, dog, you
know. Don’t be putting this out to everybody.
Cius: No.
Connors: You got to pick people that got the heart. Because you know
like– you know like I do, man, when [expletive deleted] gets to
flying, you know, you got to make sure you got the right
people, you know. I ain’t telling you how y’all do your
business.
Cius: We do this, man.
Agent Connors told Cius and Gustama that they could “talk about it” and get
back to him “in like a week.” Agent Connors emphasized that he wanted to
receive a share of five kilograms. The December 20, 2012 meeting between
Agent Connors, Cius and Gustama concluded this way:
Cius: So you don’t know when they’re gonna call you?
Connors: It will be a couple weeks. It’s every, like three to four weeks.
Once a month is basically what it works out to. So I just did one
a week ago.
Cius: I got your number though. I’m a save your number, you feel
me.
Connors: Yeah.
Cius: I’m a give you a holler.
12
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Connors: You think you can handle it?
Cius: Yeah.
Gustama: Yeah.
Connors: All right, man. Keep it tight. Like I said, it’s a guaranteed thing.
By “guaranteed thing,” Agent Connors was expressing his certainty that there
would be 15 to 20 kilograms of cocaine in the house. At the end of the meeting,
Cius repeated that he would give Agent Connors a call.
c. December 26, 2011 and December 28, 2011 Text Messages
to Cius
On December 26, 2011, Agent Connors sent Cius a text message asking him
if he was going to be able to handle the job they had talked about. Cius responded
affirmatively and asked when it would occur. Agent Connors replied that it would
probably be the following week and asked if he wanted to meet again “sometime
this week.” Cius responded: “OK let me knw wen u ready 2 meet up wit me!!”
On December 28, 2011, Agent Connors sent Cius a text message to set up a
meeting that day in the same location where they had met before. Cius agreed to
meet Agent Connors that afternoon, but later sent text messages to say he was
running late. Agent Connors sent Cius a text message asking him if he was going
to handle the job, and if not, to let him know so that he could find another crew to
do the robbery. Agent Connors explained that his intent in sending Cius that
13
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message was to give him an opportunity to back out of the plan. Cius did not
respond to that message. The meeting planned for the afternoon of December 28,
2011 did not occur.
d. December 30, 2011 Text Message and Meeting With Cius
and Gustama
On December 30, 2011, Cius sent Agent Connors a text message, with the
greeting, “Wuz up bozzman?” Agent Connors replied, “U tell me. U gonna get wit
me on this?” and added that he was at the meeting “spot.” Cius replied that he
was on his way. Cius, Gustama, and Agent Connors met at the parking lot outside
the Perkins restaurant near the Turnpike. 18 At the beginning of the meeting, Cius
told Agent Connors, “We’ve been waiting on you.” Agent Connors replied, “I just
got the feeling, like, you didn’t tell me last time whether you were going to be able
to handle it.” Cius assured him: “We got the people. I got everything. We’ve been
waiting on you.”
Agent Connors told them that he expected the next delivery to be “in the
next week.” Gustama asked where the stash house would be located, and Agent
Connors told him that he would not know the address of the house until the night
of the robbery. Gustama confirmed with Agent Connors that there would only be
“two people in the house,” and Cius confirmed that “they’re both going to be
18
The conversation was recorded and played for the jury. The district court admitted the
recording as GX 4A and the transcript as GX 4B.
14
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downstairs.” Gustama asked Agent Connors if there would be anybody else
“watching the house.” Agent Connors told them that the 15 to 20 kilograms of
cocaine would already be “bricked up and wrapped up,” and Gustama commented,
“We gotta bring a bag.”
Agent Connors reiterated that they had to make it appear that he was not
involved: “You got to bust me up. I can’t look like I was involved at all. Tie me up,
just like leave it a little loose so I can get out.” Agent Connors warned again that
he could not control how the two guards inside the house would respond. Gustama
asked Agent Connors what he knew about the guards’ behavior and “moves,” and
Agent Connors replied that “usually everything is relaxed because they expect
me.” Cius and Gustama told Agent Connors that they were ready:
Cius: We ready, dog. We just waiting for the day, dog, you feel me.
Gustama: Yeah, dog.
Connors: I mean, you got the fire to take care of it?
Cius: Yeah.
Gustama told Agent Connors that he wanted to know how many people were
in the house before they went in, and Agent Connors proposed that they could wait
outside, and he would send them a text message with the number of people inside.
Agent Connors offered to rent a car for them to use as a getaway car, and he would
15
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report it as stolen the next day. 19 Cius asked Agent Connors if he could “get him
any cheap rental cars,” and Agent Connors responded, “You’re gonna have enough
money you could buy as many cars as you want.” Agent Connors asked how many
people they thought they would need to commit the robbery, and Gustama replied,
“[T]hree, four. Four the most, but three.” Agent Connors said that he needed to
pick up the cocaine within 15 or 20 minutes after he received the call with the
address of the stash house or the guards would become “suspicious” and
“paranoid.” Cius assured Agent Connors, “We’ll handle that though. We just – we
ready for the day, dog [unintelligible], you feel me.” Gustama also confirmed,
“We ready when you ready. Put it like that.”
Agent Connors reminded Cius and Gustama that he wanted to receive his
share of five kilograms of the cocaine, and if there were more than 20 kilograms,
“maybe we’ll work something else out.” Agent Connors warned them not to “put
too much out right away, just in case,” and Gustama assured him, “Yeah, yeah. We
know how to handle that.” Cius told Agent Connors: “Whenever you get the call,
just let me know.” Gustama added: “I’m ready, man. Totally ready, man.” At the
19
At trial, Agent Connors explained the reason for offering a rental car: “Based on our
experience conducting these sting operations, we put that in place to safeguard the public
because in our experience when these individuals come to show up for the last meeting, we have
had instances where they have stolen a car and then arrived at the meeting in a stolen car. So we
do that as an extra measure to protect the public. So we provide the rental car. And it also
provides an opportunity for us to give a reason for them to come to the warehouse, to control the
setting.”
16
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end of the meeting, Cius confirmed that he wanted Agent Connors to get the rental
car for them.
e. January 4, 2012 and January 6, 2012 Text Messages
On January 4, 2012, Agent Connors sent Cius a text message letting him
know that he had not yet received a phone call from the drug traffickers about
when the cocaine would arrive. On January 6, 2012, Agent Connors sent Cius
another text message telling him that he had “some new info,” meaning that he had
the date when the cocaine would arrive, and asking if they could meet at the same
“spot.” Cius did not reply until two days later, when on January 8, 2012, he sent
Agent Connors a text message, telling him that he had been out of town, but that he
could meet that day.
f. January 8, 2012 Meeting With Cius and Gustama
Cius, Gustama, and Agent Connors met on Sunday, January 8, 2012, at a gas
station next to the parking lot of the Perkins restaurant. 20 Agent Connors told Cius
and Gustama that the next delivery of cocaine would arrive Wednesday, January
11, 2012. They agreed to meet that day at 6:00 p.m. at the shop where Agent
Connors kept his truck. The “shop” was actually an ATF undercover warehouse
equipped with recording devices. Agent Connors told Cius and Gustama that he
would have the rental car at the warehouse so that they would not have to use their
20
The January 8, 2012 meeting was recorded and played for the jury. The district court
admitted the recording as GX 5A and the transcript as GX 5B.
17
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own car for the robbery. Agent Connors said he would send a text message on
Tuesday, January 10, 2012 to confirm the plan and provide directions on where to
meet him. On January 10, 2012, Agent Connors sent Cius a text message stating
“all good for tomorrow” and making a plan to meet at 6:30 p.m. the following
night.
g. January 11, 2012 Text Messages and Meeting With Cius,
Gustama, Isnadin, and McKnight
On January 11, 2012, Cius sent Agent Connors a text message asking about
the rental car. Agent Connors responded that he would be picking up the rental car
“in a few.” Cius asked Agent Connors if he could pick up the rental car “now” so
that they could apply tint to the car windows. Agent Connors replied that he could
bring the tint with him to the warehouse, and that if they arrived by 6:30 p.m., they
would have time to apply the tint to the windows before they received the call from
the drug traffickers about the location of the stash house. Cius agreed, but asked if
Agent Connors would pick up the tint. He also asked Agent Connors to make sure
he rented a “fast car.” Agent Connors agreed.
Later, Cius sent Agent Connors a text message asking if he had picked up
the rental car because he was ready to leave for the warehouse. Cius again asked if
it was a “fast car,” and Agent Connors replied that it was. Agent Connors directed
Cius to meet him at a gas station. Cius, accompanied by Isnadin and McKnight,
18
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arrived at the gas station in a Dodge Charger driven by Gustama. From the gas
station, the four men followed Agent Connors to the warehouse.
When they arrived at the warehouse, Cius, Gustama, Isnadin, and McKnight
got out of their car and followed Agent Connors inside the building to a conference
room. The four men were wearing dark clothing, and Gustama, Isnadin, and
McKnight were also wearing gloves. McKnight questioned Agent Connors about
what the house would look like, which indicated to Agent Connors that the others
had already briefed him on the plan. 21 Because this was the first time that Agent
Connors had met Isnadin and McKnight, he specifically reviewed the scenario with
them. Agent Connors warned them that “Carlos and Richie, two Mexican dudes,”
were “going to be strapped,” meaning armed with handguns, and that the robbery
had to appear like he was not involved.
Gustama reminded Agent Connors to send them a text message about how
many people were inside the house. Agent Connors asked whether everybody was
going to enter the house, and Gustama responded, “We got that. Don’t worry
about that. Just make sure the door open.” Gustama told Agent Connors that they
would leave his share of the cocaine in the trunk of the rental car. Agent Connors
asked if they had “enough fire and [expletive deleted] to handle” the job, meaning
21
The January 11, 2012 meeting was recorded and played for the jury. The recording
made from the audio recording device on Agent Connors’ person was admitted as GX 6A, and
the transcript of that recording was admitted as GX 6B. The recording made from the recording
device inside the undercover location was admitted as GX 6C.
19
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did they have guns. Cius responded, “We got that, bro.” Isnadin said very little,
but listened to everything that was being discussed.
Agent Connors offered to show them the rental car, a Nissan Altima, so that
they could begin to tint the windows. They all walked to the warehouse bay where
the rental car was parked. To put everybody at ease, Agent Connors asked the
men if they wanted something to drink while they waited for the call and offered
them beer and water. While Agent Connors was out of the room to get the tint for
the windows, Cius, Gustama, Isnadin, and McKnight high-fived and hugged each
other.
The four men then applied the tint to the windows of the rental car. Isnadin
asked Agent Connors for some WD-40 oil to help with the application of the tint.
Agent Connors left the bay and gave a pre-arranged signal to the members of the
ATF Special Response Team, who were concealed in the warehouse area and
poised to make the arrests.
2. The Arrests
The arrest team entered and ordered everyone to get down on the ground.
ATF Special Agent Cameron Conklin was a member of the arrest team that day.
Agent Conklin testified that as he approached the Appellants to arrest them, he
observed Isnadin pull a .357 revolver from the waistband of his pants and slide it
under the rental car. ATF agents later recovered that .357 revolver, and four
20
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rounds of .357 ammunition, from beneath the rental car. ATF agents also
recovered two more guns from beneath the rental car. One was a Glock 9 mm
pistol, loaded with 14 rounds of ammunition and located near where Gustama was
lying on the ground. The other was a .40 caliber Taurus pistol, loaded with nine
rounds of ammunition and in close proximity to where McKnight was lying on the
ground. The parties stipulated that Cius, Gustama, and Isnadin had been
convicted previously of felony offenses.
C. Defendants-Appellants’ Evidence at Trial
Cius called ATF Special Agent Pamela Bradley, the case agent, who
testified that agents “did not recover a firearm that was attributed to Mr. Cius. He
told the undercover on multiple occasions that he had the firearm.” Agent Bradley
further stated that “a firearm was not recovered from Mr. Cius at the warehouse
that night.” Neither Gustama nor Isnadin presented a case in chief.
D. The Jury Instructions
Before addressing the Appellants’ challenges on appeal, it is helpful to
review the district court’s original entrapment charge and the response provided by
the district court to the jury’s question regarding entrapment. Both are addressed
below.
1. The Original Charge Related to Entrapment
21
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During the charge conference, the Appellants requested a particular jury
instruction on entrapment drafted by Cius’s counsel.22 The Government objected
to the proposed instruction, but did not object to the court giving the standard
pattern entrapment instruction. The district court agreed with the prosecution that
the “standard instruction better sets forth the law on entrapment.” Thus, as part of
its final instruction to the jury, the district court stated:
“Entrapment” occurs when law enforcement officers or others under
their direction persuade a defendant to commit a crime the defendant
had no previous intent to commit.
The defendant has claimed to be a victim of entrapment regarding the
charged offense.
The law forbids convicting an entrapped defendant.
But there is no entrapment when a defendant is willing to break the
law and the Government merely provides what appears to be a
favorable opportunity for the defendant to commit a crime.
For example, it is not entrapment for a Government agent to pretend
to be someone else and offer – directly or through another person – to
engage in an unlawful transaction.
You must not evaluate the conduct of Government officers or others
under their direction to decide whether you approve of the conduct or
think it was moral. So, a defendant isn’t a victim of entrapment if you
find beyond a reasonable doubt that the defendant [sic] only offered
the defendant an opportunity to commit a crime the defendant was
already willing to commit.
22
The proposed instruction consists of seven alternative entrapment instructions. That
proposed instruction did not specifically address the key issue in this appeal ─ whether
Appellants’ entrapment defense should be applied on an offense by offense basis.
22
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But if there is a reasonable doubt about whether the defendant was
willing to commit the crime without the persuasion of a Government
officer or a person under the Government’s direction, you must find
the defendant not guilty. 23
The district court further instructed the jury:
Each count of the Indictment charges a separate crime against one or
more of the defendants. You must consider each crime and the
evidence relating to it separately. And you must consider the case of
each defendant separately and individually. If you find a defendant
guilty of one crime, that must not affect your verdict for any other
crime or any other defendant.24
None of the Appellants objected to this instruction when it was proposed at the
charge conference; in addition, after the instructions were read to the jury, they did
not object to the “content or the manner in which the court gave the instructions.”
2. Supplemental Instruction Related to Entrapment
During deliberations, the court informed the parties that it had received the
following question from the jury: “Count 1 – How does entrapment the other
accounts? [sic] If we believe in entrapment, are the other charges applicable: count
2, count 3?”25 The Government argued that the jury should be told that “each
count would be subject to entrapment individually.” The district court then stated:
23
Eleventh Circuit Special Pattern Instruction (Criminal Cases) 13.2 (2010).
24
Eleventh Circuit Pattern Instruction (Criminal Cases) 10.4 (2010).
25
The jury also asked a second question regarding how to attribute the amount of cocaine
to each Defendant-Appellant. That question has no bearing on the instant appeal.
23
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THE COURT: I agree. I didn’t mean to say that if you find
entrapment as to one count, you have to find entrapment as to all six. I
don’t think that’s the case. I think the jury has to consider each count
and each defendant separately and distinctly. They could come back
with some entrapment findings or they could come back with some
that weren’t entrapped. So it would seem to me that I should tell them
-- even though they are not asking it -- that entrapment is raised as a
defense as to each defendant as to each of the six counts and that they
are to view the evidence separately and distinctly as it relates to each
defendant and each count. And they could come back with all guilties,
all not guilties, some guilties, some not guilties.
Cius’s counsel objected, and requested a different response:
MR. ROBBINS: It’s my belief that if they believe that there is
entrapment as to one count, then there should be entrapment for all the
counts, and that would be my request to answer these questions.
Cius’s counsel argued that “my analogy is like -- it’s like the fruit of the poisonous
tree. I mean, you know, if what was done was improper, then everything that flows
therefrom should be improper.” After some colloquy, the following exchange
occurred:
MR. ROBBINS: Your Honor, after conferring with our clients, we
would ask that Your Honor instruct the jury that the entrapment
applies to all the counts. It’s an either all or nothing situation.
THE COURT: I don’t think that's correct. What do you think, Mr.
Tantillo?
MR. TANTILLO [the AUSA]: Your Honor, I agree with you. It’s not
correct. It applies to each individual count in this particular matter. A
person can be predisposed and have intent to commit one crime, but
not another. And I think, as you stated very correctly and as was
outlined in the conversation I think on the 20th of December, Mr.
Gustama may have very well wanted to steal the cocaine, but not have
wanted to rob it.
24
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The following discussion then ensued:
[The Court]: All right. As to the first question, I would propose
telling the jury: All three defendants have raised entrapment as a
defense to each of the six charges against each of them. You are to
consider the evidence separately and distinctly as to each defendant
and as to each count. Therefore, if you find that the Government has
not proved beyond a reasonable doubt that a particular defendant as to a
particular count was not entrapped, you should find that defendant not
guilty as to that particular count. Then you would consider the other
17 counts.
MR.TANTILLO: Individually or separately?
THE COURT: Then you would consider the other 17 counts
individually and separately.
MR. TANTILLO: Thank you, Your Honor.
THE COURT: Any comments or objections to that proposed
way to answer the first question?
MR. ROBBINS: I mean with all due respect to the Court, you
know, I mean I rather that instruction not go in because I am still of
the belief if it’s entrapment as to one, it should be entrapment to
all. And maybe Your Honor should answer the question that --
THE COURT: I can’t tell them entrapment as to one count is
entrapment as to all 18. I mean the situations are different. Mr. Isnadin
only showed up the last day of the situation. They may find that he
wasn’t entrapped the last day and that the other two, Mr. Cius and Mr.
Gustama, were entrapped. So I can’t tell them: If you find entrapment,
then you got to find everybody not guilty. And the jury may find, for
example, Mr. Isnadin was never told anything by any Government
agent before he showed up – if the jury wants to believe it – with a
gun. So, you know, how was he entrapped about bringing a gun if he
is a convicted felon? So I am not going to tell the jury that if they find
that what Mr. Cius and Mr. Gustama were told in December
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constituted entrapment, that that somehow is the fruit of the poisonous
tree so that Mr. Isnadin can show up with a gun when he has never
had any contact with a law enforcement officer or other agent and all
of a sudden he gets immunity for that action. I am not going to tell
them that.
MR. ROBBINS: But my position is that, you know, if they find
entrapment for one count, then they should find it for all counts, not to
– they still can divide the defendants up, you know, and still decide
which defendant has the benefit of the entrapment defense.
THE COURT: Then what you are suggesting is I tell them: If you find
a particular defendant was entrapped, your verdict should be not
guilty as to all six counts.
MR. ROBBINS: Yes.
THE COURT: And if you find that the defendant was not entrapped,
if you find the Government proved beyond a reasonable doubt that
they weren't entrapped and they otherwise proved all of the elements
of the crime, then you should find them guilty on all six counts.
MR. ROBBINS: Yes.
THE COURT: I don’t think that’s the law. I think you can get
entrapped as to committing one crime, but not as to others.
MR. ROBBINS: I don’t see how –
THE COURT: I don’t think entrapment applies to the transaction. I
think it applies to the crime.
MR. ROBBINS: I just don't see how you can take – I mean, all these
cases – all these different charges were all intertwined. It was all, you
know, the robbery and the cocaine and the guns. It was all one –
basically one sales job by the agent. And he was – and when he was
talking to the defendants, he was talking about the cocaine, he was
talking about the robbery, he was talking about the weapons. And I
don’t think that there should be a differentiation between those – you
know, I mean it was all one – like one transaction. It was all one issue.
26
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It wasn’t like it was divided – when the officers talk about it, it was
the –
THE COURT: And the jury may very well find factually that that’s
the case, but I don’t think they have to. I think the jury could find that,
you know, these guys brought guns and that they were comfortable
bringing guns and they were predisposed to do it and find them guilty
of possession of a firearm by a convicted felon. Under your scenario
that would be precluded.
Gustama’s counsel then proposed an alternative instruction:
MR. HOROWITZ: Your Honor, while I join in Mr. Robbins’ request
for the all or nothing instruction, for lack of a better term, if the Court
was to deny that request, a simple answer to the question would be
entrapment is a defense as to all counts of the Indictment as to all
defendants, and then let the jury deliberate. I think that says it in a –
giving them an opportunity to find entrapment or not find entrapment
as to all counts.
The district court rejected this proposal as well, and stated: “All right. I think
I am going to give the instruction the way I proposed it over all three
defendants’ objections. . . . So I am going to give the instructions the way I
proposed them and the defense objections are overruled.” The district court
then answered the jury’s question:
THE COURT: All right. We have two notes from you or two questions
from you.
Count 1. How does entrapment affect the other counts? If we believe in
entrapment, are the other charges applicable to count 2, count 3?
All three defendants have raised entrapment as [a] defense as to each
of the six charges against each of them. You are to consider the
evidence separately and distinctly as to each defendant and as to each
count. Therefore, if you find that the Government has not proved
27
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beyond a reasonable doubt that a particular defendant as to a particular
count was not entrapped, you should find that defendant not guilty as
to that particular count. Then you would consider the other 17 counts
individually and separately.
II. ISSUES ON APPEAL
We must address three separate issues on appeal. First, as to Cius and
Gustama, we must decide whether the district court’s supplemental instruction
directing the jury to consider the entrapment defense individually and separately as
to each count was in error. Second, we must determine whether sufficient
evidence supports the convictions. In so doing, we analyze whether there was
sufficient evidence of predisposition to convict Cius and Gustama of Counts 2 and
4. We also examine whether the district court erred in denying Gustama’s motions
for judgment of acquittal. Third, we must determine whether Isnadin’s derivative
entrapment argument has merit. We consider each of these issues in turn.
III. DISCUSSION
A. The Supplemental Instruction Regarding Entrapment
We begin our discussion by addressing the Appellants’ challenges to the
district court’s supplemental instruction regarding entrapment. This analysis
requires us to address the standard of review, the law of entrapment, and the
Appellants’ arguments regarding how a “course of conduct” affects the question of
entrapment.
1. Standard of Review
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We review the legal correctness of a jury instruction de novo. United States
v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (citations omitted). However,
questions of phrasing, including a district court’s response to a jury question, are
reviewed for an abuse of discretion. United States v. Lopez, 590 F.3d 1238, 1247
(11th Cir. 2009). District courts enjoy broad discretion in formulating jury
instructions, so long as the charge as a whole accurately reflects the law in the
context of a case’s facts. Id. at 1247-48. “A challenged supplemental jury
instruction is reviewed as part of the entire jury charge, in light of the indictment,
evidence presented and argument of counsel to determine whether the jury was
misled and whether the jury understood the issues.” Id. at 1248 (internal citations
and quotations omitted). We will not reverse a conviction on the basis of a jury
charge unless “the issues of law were presented inaccurately, or the charge
improperly guided the jury in such a substantial way as to violate due process.”
Prather, 205 F.3d at 1270 (internal citations and quotations omitted). Of course,
where a party did not object to a jury instruction in the district court, we review
that instruction for plain error. Id. (citing Fed. R. Crim. P. 30, 52(b)).
2. The District Court Did Not Abuse its Discretion by Instructing the
Jury to Consider Entrapment on a Count by Count Basis
At the outset, it is important to note what is not at issue on this appeal. As
part of its initial instructions, the district court instructed the jury that it should
consider each crime and each defendant separately, noting in pertinent part: “[I]f
29
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you find a Defendant guilty of one crime, that must not affect your verdict for any
other crime or any other Defendant.” This language tracked Eleventh Circuit
Pattern Jury Instruction (Criminal Cases) § 10.4 (2010). Cius and Gustama
concede they did not object to this instruction when it was given. According to the
annotation for this pattern instruction, however, this language should be removed
when an indictment is structured so that a conviction of one count or counts (i.e.,
“predicate offenses”) is necessary to a conviction of another count or counts. Cius
and Gustama were both charged with two § 924(c) offenses in Counts 4 and 5. An
essential element of both these offenses is the commission of one of the predicate
offenses charged in Counts 1, 2, or 3.26 Because no objection was made to Pattern
Instruction 10.4 at the time it was given, if we were to review this instruction, we
would do so for plain error. And, in that event, we would find no error with the
instruction. However, as Cius and Gustama have readily agreed (in both their
briefs and at oral argument), the issue here is the supplemental instruction given in
response to the entrapment question—not the initial instruction on considering
26
Indeed, the district court instructed the jury as much in the initial instructions.
Regarding Counts 4 and 5, the district court instructed the jury that in order to convict, “the
evidence must show beyond a reasonable doubt…[t]hat the object of the unlawful plan was to
use or carry a firearm during and in relation to one of the federal drug trafficking crimes, or the
federal crime of violence, or both, as charged in Counts 1, 2, and 3 of the indictment.”
30
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each count and each defendant separately. 27 Further, neither Cius nor Gustama
challenge the original pattern entrapment instruction. Therefore, we turn to the
question of whether the district court abused its discretion when it answered the
jury’s question and instructed it to consider the defense of entrapment separately
and individually as to each defendant and each count charged in the indictment.
We find that it did not.
a. The Law of Entrapment
The entrapment defense involves two separate elements: (1) Government
inducement of the crime, and (2) lack of predisposition on the part of the
defendant. United States v. Mathews, 485 U.S. 58, 63 (1988); United States v.
Costales, 5 F.3d 480, 487 (11th Cir. 1993) (emphasis added). The defendant bears
an initial burden of production to show that the first element, Government
inducement, is met. United States v. Ventura, 936 F.2d 1228, 1230 (11th Cir.
1991) (emphasis added). Once the defendant makes this initial showing, the
burden shifts to the Government to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime. Id.; see also United States v.
Brown, 43 F.3d 618, 623 (11th Cir. 1995).
27
Cius, and Gustama by adoption, state that “what is at issue is the error in the trial
court’s supplemental jury instruction.” (Reply Brief at 10). Furthermore, at oral argument,
Cius’s counsel admitted, that even if not in the context of this case, the instruction was an
accurate statement of the law, to which the Appellants did not object.
31
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To show Government inducement, a defendant may produce any evidence
sufficient to raise a jury issue “that the [G]overnment’s conduct created a
substantial risk that the offense would be committed by a person other than one
ready to commit it.” United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.
1985) (quoting United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975)).
Again, this is merely a burden of production. A defendant has no burden of proof
at any point during a criminal trial. See In re Winship, 397 U.S. 358, 364 (1970)
(“the Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.”). Moreover, “[t]his burden [of production] is light
because a defendant is generally entitled to put a recognized defense to the jury
where sufficient evidence exists for a reasonable jury to find in [his] favor.”
Brown, 43 F.3d at 623 (citing Matthews, 485 U.S. at 63).
The “predisposition inquiry is a purely subjective one which asks the jury to
consider the defendant’s readiness and willingness to engage in the charged crime
absent any contact with the [G]overnment’s officers or agents.” Id. at 624. This
element “focuses upon whether the defendant was an ‘unwary innocent’ or, instead
an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate
the crime.” Matthews, 485 U.S. at 63. This Court has rejected the notion that the
predisposition analysis is one that occurs against a backdrop of fixed, enumerated
32
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factors; instead, it has held that it is necessarily a fact-intensive, subjective inquiry
into a defendant’s state of mind. See Brown, 43 F.3d at 625. However, as we
explained in Brown, several general principles guide the exercise:
The Government need not produce evidence of predisposition prior to
its investigation. Aibejeris, 28 F.3d at 99. Predisposition may be
demonstrated simply by a defendant's ready commission of the
charged crime. Jacobson, 503 U.S. at [550], 112 S. Ct. at 1541;
Andrews, 765 F.2d at 1499. A predisposition finding is also supported
by evidence that the defendant was given opportunities to back out of
illegal transactions but failed to do so. Ventura, 936 F.2d at 1231,
1232. Post-crime statements will support a jury's rejection of an
entrapment defense. Andrews, 765 F.2d at 1499. Existence of prior
related offenses is relevant, but not dispositive. Id. at 1500. Evidence
of legal activity combined with evidence of certain non-criminal
tendencies, standing alone, cannot support a conviction. See Jacobson,
503 U.S. at [550], 112 S. Ct. at 1543. Finally, the fact-intensive nature
of the entrapment defense often makes jury consideration of demeanor
and credibility evidence a pivotal factor. See Ventura, 936 F.2d at
1230.
Id.
b. The “Course of Conduct” Theory Advanced by Cius
and Gustama Regarding the Supplemental
Instruction is One of First Impression in this Circuit
Cius and Gustama contend that the district court erred when it instructed the
jury to consider entrapment separately as to each count, and that the district court’s
supplemental instruction misconstrued legal principles set forth in a former Fifth
33
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Circuit opinion, United States v. Wells, 506 F.2d 924 (5th Cir. 1975).28 They
maintain that Agent Connors presented a single “scenario” premised a scheme to
rob the cocaine from two armed guards at the stash house. In other words, Cius
and Gustama contend that, but for the opportunity to rob the stash house, there
could be no agreement to possess the cocaine or to use or carry a firearm. Thus,
they argue, the crimes charged in the Indictment were a course of conduct such that
if they were entrapped as to committing the first crime, they necessarily were
entrapped as to committing the separate offenses charged in the remaining counts.
For this reason, they assert that the district court should have instructed the jury
that if it found entrapment as to Count 1 it necessarily must have found entrapment
as to the remaining counts. This Circuit has not previously addressed this specific
question, but we decide it today. In doing so, we conclude that the position
championed by Cius and Gustama incorrectly states the law as to entrapment, a
defense that again has two separate, albeit related, elements. Our analysis of the
argument and our explanation as to why the district court did not commit error in
giving the supplemental jury instruction follows.
c. The Former Fifth Circuit’s Decision in United States v.
Wells
28
The holdings in decisions rendered by the former Fifth Circuit prior to October 1, 1981
are binding on this Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc).
34
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The first argument that we must address is the contention by Cius and
Gustama that this case involves a single course of conduct and the former Fifth
Circuit’s decision in Wells requires us to find the supplemental instruction was
given in error. We disagree, concluding that Cius and Gustama’s reliance on the
Wells decision is misplaced.
In Wells, the defendant argued on appeal that the district court should have
instructed a jury that it could find that the series of underlying drug sales was a
“course of conduct” induced by the activity of the Government. Wells, 506 F.2d at
926. Wells had been indicted on eight counts of possession with intent to
distribute and distribution of a controlled substance. Id. at 924. The jury found
Wells not guilty as to the first transaction (charged in the first two counts), but
guilty as to the last three transactions (charged in the subsequent counts). As in
this case, the trial court in Wells addressed entrapment in its initial instruction and
there was no objection to that instruction. The Wells trial court also gave a
supplemental instruction after the jury asked a question during its deliberations.
The specific question posed by the jury in Wells was this:
If we find the defendant was entrapped, is he therefore not guilty on
all counts or can we find that he was initially entrapped on Counts 1
and 2 and guilty on the remainder counts?
Id. at 925. After soliciting input from trial counsel, the trial court gave the
jury this supplemental instruction:
35
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You must determine whether or not the defense of entrapment is
applicable to any or all counts. Each count must be considered
separately. Your verdicts may be the same or they may be
different. Each verdict must be agreed to by all members of the
jury.
Id. Wells argued on appeal that the jury should have been instructed on
“course of conduct” based upon the Supreme Court’s decision in Sherman v.
United States, 356 U.S. 369 (1958). Id. The former Fifth Circuit disagreed
and affirmed. Before we address the application of Wells here, we first
analyze the Supreme Court’s decision in Sherman.
In Sherman, the Supreme Court reversed a conviction for three narcotics
sales, finding that the evidence at trial established entrapment as a matter of law.
A Government informant met with Sherman while the two were undergoing
treatment for narcotics addiction. Sherman initially refused the Government
agent’s request to supply him with narcotics. But, after several additional pleas,
Sherman agreed. Through this process, Sherman was re-addicted. After the
informant notified Government agents that Sherman was a seller, they observed
three additional transactions, for which Sherman was convicted. In finding that
Sherman was entrapped, the Court stated, in dicta, “[I]t makes no difference that
the sales for which petitioner was convicted occurred after a series of sales. They
were not independent acts subsequent to the inducement but part of a course of
conduct which was the product of the inducement.” Sherman, 356 U.S. at 374
36
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(emphasis added).29 The Supreme Court then proceeded to analyze the
predisposition element of entrapment. The Supreme Court ultimately concluded
the Government’s evidence was insufficient on this point. However, notably the
Court’s analysis did not screech to a halt upon the mere suggestion that the drug
charges formed part of the same course of conduct that was the product of
Government inducement. Rather, the Supreme Court carefully parsed the
Government’s evidence on predisposition and explained why it was insufficient to
overcome the entrapment defense.
This analysis of Sherman informs our review of the former Fifth Circuit’s
decision in Wells. As part of its analysis, the Wells court first explained precisely
what Sherman suggested regarding a “course of conduct,” and noted that this
moniker was merely part of the Supreme Court’s comment, in passing, “on the
argument that if there was inducement, it produced acts which occurred prior to
those for which Sherman was convicted.” Wells, 506 F.2d at 926 (emphasis
added). The Wells court further distinguished the facts before it from those in
Sherman by observing that no prior sales were at issue and that the
“[G]overnment’s inducement allegedly produced only those acts for which Wells
was tried.” Id. (emphasis added). The court concluded that because it was
instructed to consider entrapment separately as to each count, the jury was free to
29
There was no issue in Sherman concerning jury instructions.
37
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find that the series of drug sales were a “course of conduct” induced by the
Government. On this basis, the Wells court concluded that the trial court
committed no error in giving the jury the challenged supplemental instruction. In
reaching this conclusion, the court noted that “[u]nless the evidence established as
a matter of law that there was a ‘course of conduct,’ it would have been error to
charge, as the defense requested at trial, that Wells was either guilty of all or
innocent of all.” Id.
Cius and Gustama, seizing upon this language in Wells, contend that when
determining whether an entrapment defense applies across the board to all counts,
or to each count separately and individually, a district court must determine
whether the counts are part of a single “course of conduct,” or, on the other hand,
are “wholly separate.” However, Cius and Gustama ask us to extend Wells too far.
First, we are not bound by the proposition for which Cius and Gustama cite Wells,
as it was not essential to the holding, and thus is non-binding dictum. Second, we
note that Cius and Gustama’s argument ignores the tautological point that the
former Fifth Circuit concluded in Wells that the district court did not commit error
by instructing the jury that it should consider entrapment as to each count. Wells,
506 F.2d at 926. The Wells decision simply does not stand for the proposition that
Cius and Gustama assert: that when a so-called “course of conduct” exists, it is
necessary to give an all or nothing entrapment defense instruction.
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d. The Question of “Course of Conduct” and Continuing
Entrapment
Contrary to their argument, whether the charges against Cius and Gustama
formed part of the same course of conduct is not determinative of when an
entrapment defense applies to all counts or must be assessed separately by the trier
of fact as to each count. See, e.g., United States v. Mitchell, 67 F.3d 1248 (6th Cir.
1995) (rejecting a continuing entrapment instruction, and concluding that even
though the drug sales at issue were only days apart, they did not form part of the
same course of conduct that was the product of the original inducement, and
finding that the district court’s instruction to consider entrapment separately was
not in error because the jury could have found particular evidence on record as
indicative of predisposition unrelated to the first “induced” sale); United States v.
Khubani, 791 F.2d 260, 264 (2d Cir. 1986) (“Limiting examination of defendant's
state of mind to the period prior to any [G]overnmental contact ignores the
possibility that the defendant could become predisposed to commit the crime after
the [G]overnment's first contact.”); United States v. North, 746 F.2d 627, 630 (9th
Cir. 1984) (“The initial entrapment, assuming it existed, did not immunize [the
defendant] from criminal liability for subsequent transactions that he readily and
willingly undertook. Whether any initial entrapment extended through some or all
of the later transactions was a question of fact that the [trial court’s] instruction
properly left to the jury.”), abrogated on other grounds, United States v. Kent, 649
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F.3d 907 (9th Cir. 2011)); see also United States v. Curry, 284 F. Supp. 458, 464
(N.D. Ill. 1968) (after finding that various drug sales were part of a continuous
relationship between the defendants and the Government agent and that both sales
were induced by the same course of conduct, analyzing “the remaining entrapment
issue” as to whether the defendants were sufficiently predisposed). 30
30
Of course, this is not to say it is never appropriate for a district court to provide a
continuing entrapment instruction. In fact, this is exactly what occurred in United States v.
Slaughter, 891 F.2d 691 (9th Cir. 1989) and United States v. Beal, 961 F.2d 1512 (10th Cir.
1992). However, those two cases are readily distinguishable.
In Slaughter, the defendant was indicted on three counts of distribution of a controlled
substance in violation of 21 U.S.C. § 841(a)(1). The defendant appealed his conviction on two
of the three counts arguing that the district court should have instructed the jury that it could find
the defendant was entrapped in the first instance and therefore all criminal acts following were
subject to the initial entrapment. The Ninth Circuit found that the district court erred in failing to
give this instruction “given the short period between the three drug transactions [five days] and
the obvious jury confusion on the issue of entrapment.” Slaughter, 891 F.2d at 700. Although
the court found the district court had erred under the circumstances of that particular case, it did
not conclude that the continuing entrapment instruction should be given in every multiple count,
“course of conduct” case. Id.
In Beal, the Government appealed from an order granting the defendant’s motion for judgment
of acquittal. Beal, 961 F.2d at 1513. The defendant was indicted on two counts of selling a
controlled substance to an undercover police officer. Id. Relying on Sherman, the Tenth Circuit
found that the district court’s conclusion that the defendant was entrapped as matter of law on
each count was correct because the “two counts were founded upon one continuous course of
conduct” and therefore it followed that the original inducement which “beguiled” the defendant
carried over to the second charge. Id. at 1517 (emphasis added). The court explicitly found that
it would not hold as a general rule that once entrapment occurred, a defendant’s subsequent acts
are immunized from culpability. The court concluded that under the facts of that case only “the
original inducement and not the defendant’s predisposition provided motive for his otherwise
criminal acts.” Id. at 1517.
Although a finding of continuing entrapment was appropriate in these cases, we find that the
underlying crimes in Slaughter and Beal were noticeably different from the charges here. The
charges forming the basis of the indictment in those two cases were the same crime—that is,
counts alleging violations of the same criminal statute. Here, the charges do not relate to the
same crime. Rather, they related to wholly distinct allegations asserting violations of different
criminal statutes. Each charge in the Indictment alleged a separate offense, unlike the situations
in Slaughter and Beal. In some instances it may be proper to provide a continuing entrapment
instruction on facts such as those found in Slaughter and Beal, (i.e., where the defendants were
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For purposes of this decision, we need not decide whether the separate
counts on which Cius and Gustama were indicted formed part of the same course
of conduct. Even if we assume there was such a course of conduct, that finding is
only helpful to Cius and Gustama to the extent it serves as a basis for the
conclusion that they carried their initial burden of production to show inducement
as to each count. We note of course, that Appellants could have met this initial
burden of production by showing Government inducement as to each of the
charges they faced. By successfully carrying that burden of production, the
Appellants were able to place squarely before the jury the issue of entrapment as to
each offense charged.31
A review of this record amply demonstrates that the district court necessarily
determined Cius and Gustama met their burden of production regarding
inducement. The district court gave an entrapment instruction and told the jury to
consider the issue as to each count. It is immaterial for purposes of our analysis
whether the district court did so based upon a finding that there was a course of
charged in a series of drug transactions and accused of violating the same criminal statute, and
the evidence regarding the defendant’s predisposition to commit the crime is the same for each
count). That is not the case here, and it was appropriate for the district court to instruct the jury
to consider entrapment separately as to each count, which charged each defendant with separate
crimes.
31
Moreover, whether the Government induced Cius and Gustama into a course of
conduct does not answer the question about whether either man was predisposed to commit the
crimes that formed part of that course of conduct absent the inducement.
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conduct or, alternatively, because it analyzed the inducement evidence as to each
count separately. In either event, the trial court correctly shifted the burden to the
Government to prove beyond a reasonable doubt that Cius and Gustama were
predisposed to commit the crimes for which they were charged—not whether they
were predisposed to commit a “course of conduct.”
To put it a slightly different way, even if the counts charged in the
Indictment formed part of the same course of conduct, and even if Cius and
Gustama were induced as to all counts, there is still the question of whether they
were predisposed to commit each of the crimes at issue. Because of the subjective,
fact-intensive nature of the predisposition inquiry, it may well be that the facts of a
given case indicate that an individual defendant is predisposed to commit some
crimes, but not others. And, to be clear, the key inquiry for us is whether the
evidence in the light most favorable to the Government shows that Cius and
Gustama were predisposed to commit the offenses of conviction. For example, it
is possible Cius and Gustama were predisposed to conspire to possess the cocaine
in some manner (as charged in Count 2), even if they were not predisposed to “rob
them ‘bro’” (as charged in Count 1). In fact, as discussed below, a review of the
record demonstrates that the evidence supports that very conclusion. Accordingly,
as part of our review, we must consider whether the evidence adduced at trial
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supports a finding by the jury that Cius and Gustama were predisposed to commit
the offenses charged in Counts 2 and 4.
B. Sufficiency of the Evidence
We now turn to the question of whether there is sufficient evidence
regarding predisposition to support the jury’s verdicts against Cius and Gustama.
We are also called upon to address Gustama’s other challenges to the sufficiency
of the evidence and his separate contention that he was entrapped as a matter of
law.
1. Standard of Review
This Court reviews de novo whether there is sufficient evidence to support a
guilty verdict in a criminal trial. United States v. Doe, 661 F.3d 550, 560 (11th Cir.
2011), cert. denied, 132 S. Ct. 1648 (2012). In so doing, the Court views the
evidence in the light most favorable to the Government and resolves all reasonable
inferences and credibility evaluations in favor of the verdict. Id. “Evidence is
sufficient to support a conviction if a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” United States v. Maxwell,
579 F.3d 1282, 1299 (11th Cir. 2009) (internal quotations and citations omitted).
If a reasonable trier of fact could so find, “[t]he evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Robertson, 493 F.3d 1322, 1329
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(11th Cir. 2007) (internal quotations and citations omitted). “[A]ll reasonable
inferences must be drawn in favor of supporting the jury’s verdict.” United States
v. Sawyer, 799 F.2d 1494, 1501 (11th Cir. 1986) (per curiam) (citing Glasser v.
United States, 315 U.S. 60, 80 (1942)).
“The test for sufficiency of evidence is identical regardless of whether the
evidence is direct or circumstantial, and no distinction is to be made between the
weight given to either direct or circumstantial evidence.” United States v. Mieres-
Borges, 919 F.2d 652, 656-57 (11th Cir. 1990) (internal quotation marks omitted).
However, “[w]here the [G]overnment relies on circumstantial evidence, reasonable
inferences, and not mere speculation, must support the jury’s verdict.” United
States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005) (internal quotation marks
omitted).
This Court has observed that “[e]ntrapment is generally a jury question,” and
“[t]herefore, entrapment as a matter of law is a sufficiency of the evidence
inquiry.” Brown, 43 F.3d at 622 (11th Cir. 1995). Thus, in assessing an
entrapment as a matter of law argument, we ask whether the evidence was
sufficient for a reasonable jury to conclude that the defendant was predisposed to
commit the offense at issue. United States v. King, 73 F.3d 1564, 1568 (11th Cir.
1996). “When an entrapment defense is rejected by [a] jury, our review is limited
to deciding whether the evidence was sufficient for a reasonable jury to conclude
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that the defendant was predisposed to take part in the illicit transaction.” Brown,
43 F.3d at 622 (citing United States v. Aiberjeris, 28 F.3d 97, 99 (11th Cir. 1994)).
2. Analysis
As a preliminary matter, we note that in making their entrapment argument,
Cius and Gustama invite us to make a substantial leap in logic. That is, they ask us
to assume, based upon the jury’s question regarding entrapment and its subsequent
verdict as to Count 1, that the jury necessarily determined that Cius and Gustama
were found not guilty because they were entrapped. There are at least two flaws in
this argument. First, there is no way for us to tell—and, indeed, no way to know—
if the jury’s verdict as to Count 1 was occasioned by a conclusion that Cius and
Gustama were entrapped. On this record, it is impossible for us to determine
precisely why the jury acquitted Cius and Gustama on Count 1. For example, it
could be that the jury determined that the Government failed to present sufficient
evidence—that is, evidence beyond a reasonable doubt—as to one or more of the
essential elements needed to convict on the Hobbs Act conspiracy charge. In that
event, the jury would not have been required to consider the issue of entrapment as
to Count 1. On the other hand, it is possible that the jury found sufficient evidence
to convict but determined Cius and Gustama were entrapped (i.e., that they were
not predisposed to scheme to commit a robbery). In any event, without the benefit
of special interrogatories or any other evidence on record, we simply cannot say
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for sure. But we are sure of at least this much: the evidence was sufficient to
establish not only that Cius and Gustama committed the crimes charged in Counts
2 and 4, but also that they were predisposed to commit such crimes.
In addition to the arguments he adopts regarding the supplemental
instruction on entrapment, Gustama also maintains that the district court erred in
denying his motions for judgment of acquittal because (1) the evidence was
insufficient to convict him on Counts 2 and 4, and (2) he was entrapped as a matter
of law. We disagree and address these arguments along with the questions of
predisposition and sufficiency of the evidence.
Construed in the light most favorable to the Government, a review of the
evidence outlined below demonstrates that a reasonable trier of fact could conclude
that Cius and Gustama were predisposed to commit the crimes charged in Counts 2
and 4, and therefore were not entrapped as to those charges.
a. Predisposition of Cius and Gustama to Conspire to Possess
a Controlled Substance with the Intent to Distribute It
(Count 2)
During their initial meeting with Agent Connors, Gustama asked in Cius’s
presence how they could get to the cocaine without the armed guards knowing.
Later, during this same meeting, the following conversation ensued:
Cius: So the only way to get is to be at the house?
Connors: That’s it.
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Cius: So we cannot – we can’t hit someone he sell it to or
something?
Connors: Mm-mm. You ain’t gonna get nothing. You’ll get one
or two.
Gustama: How about when it’s coming in?
Connors: I have no idea. . . .
From this evidence, a reasonable jury could conclude that Cius and Gustama
schemed to possess the cocaine stored at the stash house, even if they were not
predisposed to rob the armed guards to obtain it. Again, predisposition is a fact-
intensive, subjective inquiry, and it was certainly permissible for the jury to
conclude that Appellants conspired to secure the drugs in their possession by some
means, even if not by armed robbery.
b. Predisposition of Cius and Gustama to Conspire to Possess
a Weapon in Furtherance of a Drug Trafficking Crime
(Count 4)
Turning next to the question of whether Cius and Gustama were entrapped
as to the charge in Count 4, the evidence supports the jury’s verdict that they both
were predisposed to conspire to carry or use weapons in obtaining the cocaine (as
charged in Count 4), even assuming they were not predisposed to agree to rob the
cocaine by force, violence, or fear of injury (as charged in Count 1). Importantly,
in this case Count 4 charged the weapons conspiracy offense in the alternative.
That is, the Government charged that Cius and Gustama either conspired to possess
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a weapon in furtherance of their plan to rob the stash house (Count 1) or to possess
such a weapon in furtherance of a drug trafficking crime (Count 4). Therefore,
even if we were to accept Appellants’ invitation to assume the jury concluded that
Cius and Gustama were not predisposed to rob the stash house, that does not mean
that they were not predisposed to possess firearms in furtherance of a drug
trafficking crime.
The need for firearms was discussed at every meeting leading up to the day
Cius and Gustama were arrested. At the time of the arrests, agents recovered three
firearms under the rental car. Agent Conklin testified that he saw Isnadin remove a
handgun from his waistband and slide it under the car. One of the other guns, a
Glock pistol, was found near where Gustama was lying on the ground. To be sure,
during its closing argument, the prosecution summarized this evidence as being
“tools of the trade” necessary to rob the stash house and steal the cocaine.
However, the Government also referred to the weapons as “tools” needed to
engage in a drug conspiracy.
As we have previously noted, “numerous cases have recognized that guns
are a tool of the drug trade. There is a frequent and overpowering connection
between the use of firearms and narcotics traffic.” United States v. Pham, 463
F.3d 1239, 1246 (11th Cir. 2006) (quoting United States v. Cruz, 805 F.2d 1464,
1474 (11th Cir. 1986)). For this reason, it is reasonably foreseeable that a co-
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conspirator would possess a firearm in furtherance of a conspiracy involving
possession of a large quantity of illegal drugs. United States v. Fields, 408 F.3d
1356, 1359 (11th Cir. 2005); United States v. Freyre-Lazaro, 3 F.3d 1496, 1506
(11th Cir. 1993). While these legal points are often discussed in connection with
sentencing, both legally and logically they are equally applicable when considering
whether there was a factual basis for a jury’s verdict related to a conspiracy to
possess weapons in furtherance of a drug trafficking offense. And in this context,
this case law supports the Government’s argument that Cius and Gustama were
predisposed to participate in such a conspiracy.
c. There is Sufficient Evidence to Support Gustama’s
Convictions on Counts 2 and 4
Gustama argues that the district court erred in denying his motions for
judgment of acquittal because the evidence was insufficient for a jury to conclude
that he conspired to possess more than 500 kilograms of cocaine with the intent to
distribute, in violation of 21 U.S.C. § 846 (Count 2), or that he conspired to use
and carry a firearm during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 4). We consider each count separately.
To sustain a conviction under 21 U.S.C. § 846, as charged in Count 2, the
Government must offer sufficient evidence to prove beyond a reasonable doubt
that: (1) an illegal agreement existed to possess with intent to distribute a
controlled substance; (2) Gustama knew of the agreement; and (3) Gustama
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knowingly and voluntarily joined the agreement. See United States v. Charles, 313
F.3d 1278, 1284 (11th Cir. 2002). Although the Government was not required to
prove that Gustama knew every detail or participated in every stage of the
conspiracy, it must have established that he “knew the essential nature of the
conspiracy.” Id. (internal quotations and citations omitted). “[M]ere presence [at
the scene of key events] is inadequate to establish guilt, . . . [but] it is material,
highly probative, and not to be discounted.” United States v. Gamboa, 166 F.3d
1327, 1332 (11th Cir. 1999) (internal quotations omitted). The Government is not
required to prove an overt act in furtherance of a 21 U.S.C. § 846 conspiracy.
United States v. Baker, 432 F.3d 1189, 1201 n. 3 (11th Cir. 2005).
Gustama contends that the Government failed to prove the second element
—that he had actual knowledge of a conspiratorial plan—because he “did not
appear on the [G]overnment’s radar until the agent made contact with Cius” and
the “conspiracy” was simply a manufactured fallacy that he was incapable of
joining. We disagree and find that the Government presented sufficient evidence
from which a reasonable trier of fact could find that Gustama knew the goal of the
conspiracy.
Gustama accompanied Cius to all four meetings with Agent Connors. His
own words and actions demonstrate that he helped with the plan to acquire the
narcotics. Gustama asked Agent Connors questions about the location of the house
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and who would be inside. Gustama asked Agent Connors if they could get the
cocaine without the guards knowing. After explaining Cius and Gustama would
have to rob them, Agent Connors asked Gustama if he could “handle” it, to which
Gustama replied, “Yeah.”
During the second meeting on December 30, 2011, Gustama asked more
questions about the location of the stash house. He confirmed that only two people
would be inside and stated that he preferred a “one-level house.” Gustama also
asked if the cocaine would be “wrapped up and ready.” He told Agent Connors
that he and Cius would need to bring a bag with them. Gustama asked Agent
Connors what was the least amount of cocaine he had seen inside the house. Agent
Connors said, “Fifteen.” When Agent Connors reminded Gustama that he wanted
his five kilograms, Gustama responded, “Yeah, you’ll get that.” Gustama told
Agent Connors he wanted to know how many people were in the house before he
entered, and they agreed Agent Connors would send a coded text message with
that information. Gustama also confirmed with Agent Connors that they would
need at least three, maybe four, people. Gustama also told Agent Connors again
that “we know how to handle that.”
At the third meeting on January 8, 2012, Cius, Gustama, and Agent Connors
discussed the use of a rental car as the getaway car. On January 11, 2012, Gustama
drove himself, Cius, Isnadin, and McKnight to a gas station, and they followed
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Agent Connors to the warehouse to pick up the rental car. Gustama was dressed in
dark clothes and gloves. When Agent Connors reviewed the plan, Gustama
reminded him to send a text message about how many people were inside.
Gustama also told Agent Connors that they would leave his share of the cocaine in
the trunk of the rental car.
Based upon this evidence, we conclude it was reasonable for the jury to infer
Gustama had knowledge of the conspiratorial plan to possess cocaine from the
stash house. On multiple occasions he asked about where the cocaine would be
located, how it would be packaged, and who would be guarding it. On multiple
occasions he requested that Agent Connors send a text message about how many
people were inside the stash house. On multiple occasions he confirmed that he
and Cius could handle the job. That Gustama was unknown to the Government
until Agent Connors made contact with Cius is simply of no moment. He was
present for four different meetings with Agent Connors, who explained he needed
individuals willing to acquire the drugs. Gustama drove himself and the others to
the staging area on the day in question. He wore dark clothing and gloves.
There was more than ample evidence which permitted the jury to conclude
that Gustama knew the agreement was to acquire cocaine. See United States v.
Gianni, 678 F.2d 956, 959 (11th Cir. 1982) (commenting that specifically
regarding the agreement element, “[t]here is rarely any direct evidence of an
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agreement to join a criminal conspiracy” and that “a defendant's assent can be
inferred from acts furthering the conspiracy's purpose”). Moreover, that Gustama
expected to find such a substantial amount of cocaine in the stash house
demonstrates that he understood the goal of the conspiracy was to possess the
cocaine with the intent to distribute it. See United States v. Carrascal-Olivera, 755
F.2d 1446, 1451 (11th Cir. 1985) (finding that eight kilograms of cocaine was
sufficient to support an inference of an intent to distribute). Therefore, we
conclude that more than sufficient evidence supports the jury’s conclusion that
Gustama knowingly joined a conspiracy to possess with the intent to distribute
more than 500 grams of cocaine.
To sustain a conviction under 18 U.S.C. § 924(c)(1)(A), as charged in Count
4, the Government must have offered sufficient evidence to prove beyond a
reasonable doubt that Gustama: (1) knowingly (2) possessed a firearm (3) during
and in relation to a drug trafficking crime or a crime of violence. 32 See United
States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008). Possession may be
actual or constructive, joint or sole. United States v. Crawford, 906 F.2d 1531,
1535 (11th Cir. 1990). To establish constructive possession, the Government must
32
Here, the jury acquitted Gustama on Count 1, which charged that he conspired to
commit a Hobbs Act robbery and convicted him on Count 2, which charged that he conspired to
possess cocaine with intent to distribute. Therefore, for purposes of this analysis, the court
presumes Gustama challenges his conviction on Count 4 as it relates to the drug trafficking crime
charged in Count 2 and not the crime of violence charged in Count 1.
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show that a defendant exercised ownership, dominion, or control over the firearm
or the vehicle concealing the firearm. Id. “The [G]overnment must also establish
some nexus between the firearm and the drug trafficking offense to show
possession was in furtherance of the crime.” United States v. Gunn, 369 F.3d
1229, 1234 (11th Cir. 2004) (citing United States v. Timmons, 283 F.3d 1246,
1252-53 (11th Cir. 2002)). “[U]nder § 924(c), a defendant may be liable for a co-
conspirator’s possession if possession was reasonably foreseeable.” Id. at 1234
(citing United States v. Bell, 137 F.3d 1274, 1274-75 (11th Cir. 1998)).
To sustain Gustama’s conviction under 18 U.S.C. § 924(o), the Government
must prove: (1) a conspiracy existed to commit the substantive offense; (2)
Gustama knew of the conspiracy, and (3) Gustama, with knowledge, voluntarily
joined it. See United States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005).
Gustama maintains that there was insufficient evidence that he ever
possessed a firearm or induced or conspired with others to do so. But, the
evidence below suggests otherwise.
We conclude that the jury could reasonably find that Gustama knew and
agreed that he or others would possess firearms during and in furtherance of their
conspiracy to possess cocaine with intent to distribute. Agent Connors discussed
the need for firearms at each meeting discussing the plan. Gustama overheard Cius
tell Agent Connors that the men had enough “fire” to handle the job. Agent
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Connors confirmed on several occasions that the men guarding the cocaine would
be armed. Because Gustama conspired to possess the cocaine with awareness that
firearms would be needed to acquire it, possession of firearms by his co-
conspirators was reasonably foreseeable. A firearm was found lying near Gustama
when he was arrested. Gustama’s knowledge that firearms would be needed to
acquire the cocaine and his proximity to a firearm when arrested provides
sufficient evidence for a jury to conclude that Gustama conspired to use a firearm
in connection with a drug trafficking offense. See Gunn, 369 F.3d at 1234
(because the defendants conspired to commit an armed robbery of cocaine,
possession of firearms by their co-conspirator was reasonably foreseeable).
Moreover, the conspiracy to possess the cocaine satisfies the nexus requirement
between the firearms and the drug trafficking offense. See id.
d. Gustama Was Not Entrapped as a Matter of Law
Gustama also maintains that the district court erred in denying his motions
for judgment of acquittal because he was entrapped a matter of law. According to
Gustama, the jury’s question during deliberations “clearly” meant the jurors “had
unanimously found entrapment” and that their not guilty verdict as to four of the
six counts is proof of that finding. Gustama is mistaken. As outlined in detail
above, see supra Part III.B.2, Gustama’s own words and actions during the
undercover operation demonstrate he was predisposed to possess the cocaine and
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to carry or use a firearm in relation to the drug trafficking offense. Thus, we cannot
say he was entrapped as a matter of law as it relates to those convictions.
C. Isnadin’s Derivative Entrapment Argument Fails
Isnadin’s only argument on appeal is that the evidence was insufficient to
support the jury verdicts because he should have been acquitted on all counts based
upon an entrapment defense. Our well-settled precedent compels us to conclude
that his argument is without merit. The law of this circuit is that “[a] defendant
cannot avail himself of an entrapment defense unless the initiator of his criminal
activity is acting as an agent of the [G]overnment.” United States v. Mers, 701
F.2d 1321, 1340 (11th Cir. 1983), cert. denied, 464 U.S. 991 (1983). Our Mers
decision is in line with the majority of circuits that do not recognize derivative or
vicarious entrapment. See, e.g., United States v. Martinez, 979 F.2d 1424, 1432
(10th Cir. 1992), cert. denied, 507 U.S. 1022 (1993) (this majority view supports
the purpose behind the entrapment defense, which is “to prohibit the [G]overnment
from directly involving an otherwise disinterested and disinclined person [in the
commission of] a criminal offense. When the Government has no contact with the
accused, that purpose has no relevance; therefore, without direct Government
communication with the defendant, there is no basis for the entrapment defense”).
There is no question that Isnadin had no contact with any Government
agents until the night of January 11, 2012, when he arrived at the warehouse with
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Cius, Gustama, and McKnight. Indeed, Isnadin admits the Government had no
knowledge of his involvement until the date of the arrests. He was not present for
any of the planning meetings with Agent Connors. In addition, he had no
telephone, e-mail, or text message contact with any Government agent. Therefore,
Isnadin is left with the singular argument that he was a victim of derivative
entrapment and urges this court to recognize the merits of such a defense. We will
not—and cannot—do so. We are bound by prior precedent. See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (under the prior panel precedent
rule, “a prior panel’s holding is binding on all subsequent panels unless and until it
is overruled or undermined to the point of abrogation by the Supreme Court or by
this court sitting en banc”).
IV. CONCLUSION
Contrary to the Appellants’ assertions, the district court’s supplemental
instruction was a correct statement of the law regarding entrapment, which has two
separate and distinct elements. The trial court did not abuse its discretion by
instructing the jury to consider entrapment separately as to each count. Moreover,
the district court did not err in failing to grant Gustama’s motion for judgment of
acquittal as sufficient evidence supports his convictions and neither he nor his co-
defendants were entrapped as a matter of law. Finally, Isnadin is not entitled to
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relief as this Circuit does not recognize derivative entrapment. Accordingly, we
AFFIRM the Appellants’ convictions.
58