United States v. Ralph Dennis , 826 F.3d 683 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 14-3561
__________
UNITED STATES OF AMERICA
v.
RALPH DENNIS,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 1-12-cr-00734-001)
District Judge: Honorable Joseph E. Irenas
Argued November 19, 2015
BEFORE: AMBRO, HARDIMAN, and
NYGAARD, Circuit Judges
(Filed: June 24, 2016)
Lawrence S. Lustberg, Esq.
Jillian T. Stein, Esq.
Benjamin Z. Yaster, Esq. [Argued]
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellant
Mark E. Coyne, Esq. [Argued]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Glenn J. Moramarco, Esq.
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee
__________
OPINION
__________
NYGAARD, Circuit Judge.
I.
Ralph Dennis seeks a new trial, asserting that the
District Court erred by denying his request to instruct the jury
on an entrapment defense and by denying his motion for
dismissal asserting outrageous prosecution. He also contends
2
that his sentence violates the Eighth Amendment of the
United States Constitution. Dennis was convicted of
conspiracy to rob a narcotics “stash house,” pursuant to 18
U.S.C. § 1951(a), 21 U.S.C. §841(a)(1), and 21 U.S.C.
§841(b)(1)(A). He was also convicted of carrying a firearm
during the commission of the crime, pursuant to 18 U.S.C. §
924(c)(1)(A)(i). The District Court sentenced Dennis to 180
months’ imprisonment, the statutory minimum.
Dennis maintains that Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) agents induced him, through
a friend, to participate in a reverse sting that was designed to
incriminate him and co-conspirators.1 We agree that the
District Court should have given an entrapment instruction on
the robbery and gun possession charges. Therefore, we will
vacate the judgment of conviction and sentence as to these
charges and remand for a new trial. The judgment is affirmed
on the remaining drug charge.
II.2
1
Dennis was tried with Terrance Hardee who was convicted
for his role in the “stash house” robbery. The United States
separately appealed Hardee’s 92-month sentence, Hardee did
not appeal or cross-appeal. We remanded for resentencing in
that case for reasons that do not change our analysis here.
Another conspirator, John Mitchell, pleaded guilty and
received a 78-month sentence.
2
For purposes of our review of Dennis’ appeal of the District
Court’s denial of his request for an entrapment instruction, we
will resolve all factual conflicts in favor of Dennis “no matter
how improbable we may find the defense version of the
3
In June 2012, ATF agents in Camden, New Jersey met
with Kevin Burk, a convicted felon facing forgery charges
who had been cooperating with local law enforcement as a
confidential informant. The agents were investigating a string
of robberies in Southern New Jersey and Philadelphia
County, Pennsylvania. Upon being questioned about
associates who were involved in robberies or violent crimes,
Burk responded that Dennis had spoken of conducting home
invasions and other robberies. The ATF agents were unaware
of Dennis prior to this. Burk added that Dennis recently had
been detained at the Camden County Jail.
The agents confirmed Dennis’ detention and then
conducted a criminal record search. They discovered that
Dennis had several felony convictions for possession with
intent to distribute small amounts of crack cocaine between
1996 and 1998, burglary of a motor bike in 2003, and for
possessing with intent to sell multiple pounds of marijuana in
2011. Burk then told agents that Dennis had previously
requested his help in robbing a check-cashing operation, but
he had declined. Dennis later testified that this was false. J.A.
1040. 3
facts.” United States v. Watson, 489 F.2d 504, 507 (3d Cir.
1973).
3
Dennis testified that it was Burk who had requested Dennis’
help in these robberies. Dennis testified that he declined three
prior invitations. Burk’s brother later corroborated one of the
incidents that Dennis alleged with eye-witness testimony. For
purposes of our review, we accept Dennis’ version of these
interactions.
4
ATF agents instructed Burk to ask Dennis for his help,
supplying Burk with a fictional back-story: he was to tell
Dennis that he needed his help to carry out a robbery. Dennis
and Burk were friends, and each was acquainted with the
other’s family members. J.A. 1002-03. Together they
engaged in small quantity cocaine purchases and sales.
Additionally, after Burk served a sentence for his drug
activities, he and Dennis became involved in pound-quantity
marijuana sales, traveling to Texas together on more than one
occasion to purchase a supply of marijuana. J.A. 1009.
Dennis was arrested for this activity. He testified that, after
this, he attempted to break free of a life of crime, but admits
he still purchased small quantities of cocaine for Burk.
Eventually, Dennis violated parole and was incarcerated for
60 days in the Camden County jail.
Burk tried, on a number of occasions, to enlist Dennis’
help in various robbery schemes. Dennis said that, three
times, Burk asked for his help to carry out bank robberies.
He declined each time. J.A. 1017-21. On Burk’s third
attempt, Dennis recalls that Burk told him he already had the
guns and the scanner needed for the job. J.A. 1022. Dennis
says that he refused to help Burk. Two weeks later, Burk
approached him to ask for his help in robbing a stash house.
This time, Burk told him that the job was necessary to help
out his mother who had cancer. Burk told him that “Rock,” a
disgruntled drug courier for a Mexican drug cartel, was the
point person for the job. Burk said that the robbery would
yield 30 to 40 kilograms of cocaine with a street-value of $2
million. J.A. 1027-28. Dennis agreed. This was the
beginning of the ATF’s reverse sting operation.
5
During the discussion between Burk and Dennis about
the stash house robbery, John Mitchell (an acquaintance of
Dennis) drove by. He questioned Dennis about his meeting
with Burk. J.A. 1029. Later, Dennis told Mitchell about the
plan, asked him to help, and introduced him to Burk.
Mitchell agreed to assist.4 Dennis portrayed Mitchell as
someone who “robbed . . . young bulls in the neighborhood”
and as someone who often carried a gun. J.A. 1055.
Burk set up the first meeting between the ATF agent,
Dennis and Mitchell for June 21, 2012. Before the meeting,
Burk told Dennis and Mitchell that they needed to impress
Rock because he was “the real thing.” J.A. 1029. Burk asked
them to “play the role” to impress Rock so that they could get
the job. J.A. 1030. Dennis said that he and Mitchell
complied.
The ATF agent posing as Rock (Greg Sheridan) met
with Burk, Dennis, and Mitchell in Pennsauken, New Jersey,
and provided more details about the job.5 Rock explained
that he was seeking revenge because the cartel refused to loan
him money to help his ailing mother. Rock went on to
explain his role as courier, and he shared his observations of
how the cartel’s stash houses operated. Dennis and Mitchell
both asked questions on details about how the stash house
4
Mitchell testified that Dennis met him at a bar and told him
about Burk’s plan to rob a stash house.
5
Most meetings were recorded with audio and video. The
narrative of these meetings in this opinion is drawn both from
trial testimony and from the transcript of the recording shown
to jury.
6
would be guarded. Dennis expressed concern about
retribution directed at Rock, and indicated that the plan had to
insulate Rock from any suspicion of being involved.
J.A.1323-24. Rock also stressed that they had to have a well-
executed plan because the stakes were high. J.A. 1311-12.
Dennis initially stated that they would have to put the guards
down, and that they would “fold” when he put a gun in the
mouth of one of the guards. J.A. 1032, 1312. Later in the
meeting he suggested they only subdue and tie up the guards.
J.A. 1035. Dennis also told Rock that they would bring a .40
caliber gun and a .357 magnum gun. Nonetheless, he testified
that he felt he was in over his head, though he did not show
this to Rock. J.A. 1035. He said that he was saying these
things solely to impress Rock, and to probe his intent. J.A.
1033, 1035, 1037. Dennis testified that he did not own a gun.
He last had a gun when he was fifteen years old. He
explained that the reason for this was that he “wasn’t trying to
go that route, like whatsoever, as far as hurting somebody or
somebody hurting me or anything. So, I just got rid of [the
gun].” J.A. 1013-14.
Rock offered Mitchell and Dennis a chance to back
out. Both declined this opportunity. Burk said that they
needed another meeting to figure out whether Rock was law
enforcement. J.A. 1039. However, he also told Dennis that
Rock had been a good friend ten years earlier and that he was
“the real deal.” J.A. 1041. Dennis suggested that they
needed another man to be part of this plan to have someone
who was physically intimidating enough to handle the guards.
J.A.1041-42. This man was Terrance Hardee.
During two later meetings, on June 27, 2012 and on
July 10, 2012, the group discussed their plan. Rock again
7
expressed his feeling of betrayal toward the cartel for its
refusal to help him. He told the group that there were usually
between 15 and 20 kilograms of cocaine at the stash house,
and that it was guarded by two individuals, one being armed.
The conversation moved on to how they would be
compensated for the job. Rock cautioned them that they
would need to repackage the cocaine they received from the
heist to avoid being tracked by the cartel. Dennis responded
that he had already thought of that, and planned to split the
kilogram packages of cocaine and re-wrap them. J.A. 466-67.
As for the robbery, Rock told the group that he
received only general information one day in advance about
the stash house location. He suggested that Mitchell could
hide in the back of his SUV as they approached the stash
house and characterized the proposed robbery as relatively
easy because the stash house guards were “slippin a little bit.”
J.A. 1366. Dennis suggested that they would use stun guns to
subdue the guards. During the meeting, Mitchell appeared to
assume that Dennis would accompany him into the stash
house, but Dennis made it clear that he would stay parked
outside, and send in someone who was bigger and more
threatening. He told the group he would be listening on a cell
phone. J.A. 1375-77.
Mitchell requested a third meeting to get clarity on the
specific roles each one would play in the robbery and how
they would approach the stash house. Burk called Rock to set
it up. At that July 10, 2012 meeting, they talked through how
Rock, Mitchell, and a third man (Hardee) would enter.
Mitchell and Dennis agreed that those who entered the stash
house behind Rock should present themselves as DEA agents
and subdue with stun guns and zip ties both the armed guard
8
at the door and the unarmed guard watching over the cocaine
bricks in the kitchen. Dennis stated that their objective was to
get in and out quickly with “nobody gettin’ hurt.” J.A. 1400.
He also suggested that he take Rock’s truck after the robbery
to strengthen the perception that Rock was not involved in it.
Dennis testified that he was very nervous at this point and
wrestled with whether he wished to follow through on the job.
J.A. 1057.
After the July 10, 2012 meeting, Burk reminded
Dennis that he told the group he had two guns he would
bring. J.A. 1063. Dennis questioned whether another gun
was needed, since Hardee was going to go into the stash
house with a stun gun. Burk pressed that it was necessary for
Dennis to have a gun in his role as lookout. J.A. 1065. The
next day, Burk stopped by again and gave Dennis a red bag
containing a gun. He asked Dennis to keep the bag at his
residence. J.A. 1066. Dennis testified that this was one of
the guns found when they were arrested. J.A. 1067. A
second gun found at that time belonged to Mitchell.
Dennis received a message on July 15, 2012, that the
robbery would take place on the next day. Dennis and
Mitchell purchased zip ties but did not purchase DEA shirts
as planned. J.A. 609. Dennis, Mitchell, and Hardee met that
evening to discuss the plans for the robbery. The next
morning, the group departed for Cherry Hill, New Jersey, in
Burk’s vehicle. At that point, they were in possession of two
guns, one stun gun, gloves, and zip ties. Once in Cherry Hill,
the group traveled in two cars to a storage facility to prepare
for and rehearse the robbery. Once there, Rock told the group
that they could leave his share of the cocaine in the storage
unit. He gave the gate code to enter the storage facility to
Mitchell. Rock talked through the details of how the stash
9
house is set up. The group then walked through the robbery,
rehearsing how it would unfold. After they completed this
walk-through, ATF agents rushed in on the group and
arrested Dennis, Mitchell, and Hardee.
Mitchell pleaded guilty. Hardee and Dennis were tried
together. Dennis first moved to have the indictment
dismissed on the basis of outrageous prosecution. The
District Court ruled that it could not “find anything inherently
outrageous or unfair or something that shocks [the]
conscience.” J.A. 42. The District Court left open, however,
the possibility of revisiting the motion if evidence at trial
warranted. It never did so.
Dennis then proceeded with an entrapment defense.
Dennis testified on his own behalf and called two other
witnesses: Dr. Carol Armstrong and Seth Lawrenson. Dr.
Armstrong, a neuropsychologist who examined Dennis,
concluded that he suffers from neurocognitive impairments,
with an IQ score of 74. She testified that Dennis was
impaired in “[h]is ability to correct his thinking, his ability to
reason or . . . to infer what the consequences are of a thought
that he has.” J.A. 890. She responded in the affirmative
when asked: “Do you believe that Ralph Dennis was more
susceptible to influence than otherwise healthy individuals
would be in this case?” J.A. 889. Lawrenson, Burk’s
brother, testified to witnessing, on one occasion, Dennis
decline Burk’s request to help him rob a bank.
After the defense rested, the District Court considered
Dennis’ request for a jury charge on entrapment. The District
Court concluded that Dennis’ own testimony established a
predilection to commit crimes with Burk as demonstrated by
10
his long association with him and the number of crimes the
two committed together. It also ruled that the record provided
no evidence that Dennis was hesitant to join in the
conspiracy. J.A. 99-100. The District Court said that any
inference drawn from his refusal to participate in previous
crimes with Burk could “cut both ways,” and could show that
Dennis was fully capable of choosing what criminal activity
he wanted to engage in. J.A. 102. Moreover, the District
Court ruled that his words and actions showed a ready
willingness to become involved. This conclusion was
strengthened by his recruiting of Hardee to help carry out the
robbery. J.A. 97. Finally, Dennis’ resolve to participate was
demonstrated by his refusal to sever himself from the group
after the ATF undercover agent explicitly gave him an
opportunity to leave. In the District Court’s assessment, all of
this evidence was “overwhelming” compared to the “small”
evidence Dennis proffered in his testimony: stating that he
was a reluctant participant, that he had not owned a gun, and
that the use of Burk’s mother in persuading him to join the
conspiracy weighed heavily on his decision. J.A. 99.
III.
Entrapment
Dennis first argues that he is entitled to a new trial
because the District Court erred by denying his request for a
jury instruction on entrapment. We give plenary review to a
District Court’s denial of a motion for a jury charge of
entrapment. United States v. Fedroff, 874 F.2d 178, 182 (3d
Cir. 1989). “Entrapment occurs when a defendant who was
not predisposed to commit the crime does so as a result of the
government’s inducement.” United States v. Jannotti, 673
F.2d 578, 597 (3d Cir.) (en banc) (“Jannotti I ”), cert. denied,
11
457 U.S. 1106 (1982). There are two elements of proof:
inducement by the government to commit the crime, and the
defendant’s lack of predisposition to commit the crime.
United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). A
defendant who requests the District Court to instruct the jury
on an entrapment defense has a “burden of production” with
regard to both elements. United States v. El-Gawli, 837 F.2d
142, 145 (3d Cir. 1988).
The defendant must first produce enough evidence to
show inducement by the government. A “mere solicitation”
or request by the government to participate in a criminal
activity, without more, is not inducement. Wright, 921 F.2d
at 45. Likewise, merely opening an opportunity for a crime is
insufficient. Mathews v. United States, 485 U.S. 58, 66
(1988). Rather, the defendant must show that law
enforcement engaged in conduct that takes the form of
‘“persuasion, fraudulent representation, threats, coercive
tactics, harassment, promises of reward or pleas based on
need, sympathy or friendship.’” Wright, 921 F.2d at 45
(quoting Fedroff, 874 F.2d at 184).
The District Court noted that this was a reverse sting
operation, and it appeared to agree with Dennis that the
inducement prong of the analysis had thus been met. We too
are convinced that the first prong of the analysis has been
met, but we are not so quick to conclude that it is simply
because it was a reverse sting. Rather, there were a number
of elements of this particular operation that lead us to
conclude that Dennis met his burden to raise a question about
inducement.
12
A major factor in our conclusion is the central role that
Burk, the ATF’s confidential informant, played in getting
Dennis to participate in the scheme. Dennis had no known
connections to the crimes the ATF was investigating at that
time and was only targeted after Burk produced Dennis’ name
in response to the ATF’s general inquiry about people he
knew who were involved in robberies. Moreover, Burk’s
personal relationship to Dennis contributed to the operation
by allowing Burk to appeal to Dennis’ sympathies based on
the story of Burk’s sick mother whom Dennis had met on a
number of occasions.6 We also note that Burk: recruited
6
The Government argues that Dennis never explicitly said
that Burk’s friendship, nor the story of Burk’s ailing mother,
influenced his decision. We disagree. On cross examination,
Dennis was asked if anything other than personal risks and
rewards motivated his involvement in the robbery. J.A. 1138.
He responded that there was more to why he agreed to join
the scheme. Id. The prosecutor immediately followed up by
asking why he never said anything along the lines of “gee,
[Burk], this is really gonna help your mother.” Id. Dennis
responded that he had done so, but his statements were not
caught on the ATF’s recordings and that many of his
conversations with Burk took place outside the presence of
ATF agents and their equipment. J.A. 1138–39. This
exchange indicates that Burk’s plea affected Dennis’ decision
to join the scheme. And this is unsurprising—a friend whom
he had known for years asked for help to pay for his mother’s
cancer treatment. While it is true that Dennis never uttered
the words that “friendship motivated his participation” in the
stash house scheme, we find a plea of friendship to lie at the
basis of Burk’s plea for help. Indeed, the entirety of Burk and
Dennis’ conversation seems predicated on friendship. This
13
Dennis, set up the first meeting with the ATF agent, drove
Dennis to the meeting, and asked that Dennis “play the role”
of a seasoned robber.7
Each of Burk’s assists, by themselves, would not
necessarily be enough to tip the scales to constitute
inducement. However, collectively, they carry great weight.
When this is added to the substantial financial payoff that was
pitched to Dennis ($1.5 million to $2 million), we are
convinced that the Government’s efforts properly can be
classified as inducement. The Government’s action exceeded
a situation in which it merely opened up an opportunity for
committing a crime.8 Here, the Government targeted an
view is only strengthened by the fact that we are required to
interpret the record in a manner favorable to Dennis.
Additionally, Dennis’ testimony about all of Burk’s appeals
to him to assist in various schemes is consistent with the
proposition that their friendship played a role. See J.A.
1017- 22 (describing the nature of Burk’s unsuccessful
appeals for his help in robbery schemes); J.A. 1022- 27
(describing the nature of Burk’s successful appeal for help
with the stash house scheme).
7
Later, Burk convinced Dennis of the need for Dennis to
have a gun during the robbery, and then he supplied the gun
to Dennis. This evidence, though occurring well after Dennis
was induced, is relevant to the charge for gun possession.
8
The Government’s actions “exceeded the typical sting in
which the government merely offers an ordinary opportunity
to commit a crime, without more.” United States v. Blitch,
773 F.3d 837, 845 (7th Cir. 2014), as amended on denial of
reh’g and reh’g en banc (Jan. 27, 2015), cert. denied sub
14
individual previously unknown to it and, with the help and
persuasion of an informant who was a friend of the target,
actively led him into the commission of a crime. This
satisfies Dennis’ burden on inducement.
We next examine whether there was sufficient
evidence to raise a reasonable doubt about Dennis’
predisposition to commit the crime. United States v. Jannotti,
729 F.2d 213, 225 (3d Cir. 1984) (“Jannotti II”); United
States v. Bocra, 623 F.2d 281, 285 (3d Cir.), cert. denied, 449
U.S. 875 (1980) (“[K]ey to the successful establishment of an
entrapment defense is proof that the defendant was not
predisposed to commit the crime and that the criminal intent
in fact originated with the Government.”). “The basic
question in an alleged entrapment case is whether the accused
was ready and willing to commit the crime if any opportunity
should be presented, or whether a person not otherwise
disposed to wrongdoing was corrupted by some overreaching
or special inducement, often amounting to reprehensible
conduct.” Watson, 489 F.2d at 509. “In general,
predisposition may be defined as the defendant’s inclination
to engage in the crime for which he was charged, measured
before his initial exposure to government agents.” Fedroff,
874 F.2d at 182 (citations and footnote omitted).
Dennis argues that the record contained more than
sufficient evidence to meet his burden of showing that he
lacked a predisposition to commit this crime. He focuses on
nom. Carwell v. United States, 135 S. Ct. 2371 (2015)
(quoting United States v. Mayfield, 771 F.3d 417, 434 (7th
Cir. 2014) (en banc)).
15
the following facts: the absence of robbery or violent crimes
in his criminal history; his partially corroborated testimony of
turning away three prior opportunities to join Burk in
robberies; his disavowal of violence on the stand; his
testimony that he has not owned a gun in many years; and the
expert testimony of his vulnerability to being persuaded due
to his low IQ.
Even with all of this evidence, the District Court still
concluded that he did not produce enough evidence to ground
a jury instruction on entrapment, stating that there is “almost
no evidence of an absence of predilection and overwhelming
evidence of a predisposition or predilection to commit the
crime.” J.A. 101. The District Court was convinced that the
recordings of the meetings between Dennis and the others
showed him to be an “eager participant” despite testimony
that Dennis was told to “play the role” to impress Rock. J.A.
100, 1030. The District Court regarded Dennis’ long
association with Burk in previous drug crimes as strong
evidence of predilection. It also recognized that Dennis had,
on three previous occasions, declined to join Burk in robbery
plans. It acknowledged that a positive inference could be
drawn from this information, giving significance to Burk’s
use of an ailing mother as an important factor in Dennis’
decision to accept Burk’s solicitation in this case. However,
the District Court reasoned that this inference could “cut both
ways” and that the stronger inference from this testimony was
that Dennis felt free to accept or decline Burk’s solicitations
at will. J.A. 102.
Dennis says that the District Court erred by weighing
this evidence and by drawing inferences against him. He
goes on to assert that these defects in the District Court’s
16
deliberation of his motion for an entrapment instruction
pertain to all of the counts on which he was convicted since
the drug conviction was inextricably entwined with the
robbery conspiracy.
The Government suggests that the favorable review
standard that Dennis applies is proper only for motions
considered pretrial. Citing to Marino, it contends that, since
Dennis was permitted to present his evidence in support of an
entrapment defense, the District Court was permitted to weigh
the evidence to decide Dennis’ motion. United States v.
Marino, 868 F.2d 549, 554 (3d Cir. 1989). However, Marino
is distinguished because it was focused on the need for a
separate evidentiary hearing. It held that a separate hearing
was not necessary to rule on the entrapment motion because
all of the defendant’s evidence relevant to entrapment was
presented at trial, and it was insufficient to justify an
instruction. Id. The timing of the motion does not alter the
necessity of the District Court to refrain from invading the
province of the jury. Here, it was not for the District Court to
decide the evidence “cut both ways” and draw a conclusion
against Dennis. Similarly, it was impermissible for the Court
to credit the Government’s evidence when Dennis presented
evidence to the contrary. Therefore, we conclude that the
District Court did err by weighing evidence and by
improperly drawing inferences against Dennis on the robbery
and firearm charges. However, as we will explain further
below, there is no such error as to Dennis’ conviction on the
drug conspiracy charge.
The Government argues in the alternative that, even if
the District Court did commit such errors, Dennis is not
entitled to a new trial because the errors were harmless. It
17
notes that—in spite of the District Court’s denial of his
motion for an instruction—Dennis was still able to proffer all
of his evidence on entrapment. Therefore, even though the
District Court may have erred in its deliberation of evidence
supporting the motion, our harmless error review—like the
jury’s—encompasses the entire record. As a result, it asserts,
the District Court’s review of the entire record is ultimately
excusable because the jury was able to weigh all of the
evidence and it still convicted Dennis on the strength of the
evidence the Government presented.
“Unless the appellate court believes it highly probable
that the error did not affect the judgment, it should reverse.”
Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d
Cir. 1974); Jannotti II, 729 F.2d at 225. As the Government
acknowledges, if Dennis’ motion for an entrapment
instruction had been granted, “the government [would have]
had the entire burden of disproving entrapment beyond a
reasonable doubt.” El-Gawli, 837 F.2d at 146. Therefore,
although it is true that the jury was able to weigh all of the
evidence—including Dennis’ entrapment evidence—it did so
without considering whether the Government carried its
burden of proving beyond a reasonable doubt that it did not
entrap Dennis to commit the crimes of conspiracy to commit
robbery and gun possession. Given that we have already
ruled that Dennis presented sufficient evidence to create
reasonable doubt about inducement and his predisposition to
commit these crimes, we cannot conclude that it is highly
probable that the District Court’s error did not affect the
judgment as to these crimes.
Nonetheless, Dennis’ reliance on his criminal record to
make his case for a lack of predisposition for committing
18
robbery and possessing a gun does not help him show that he
was not predisposed to commit drug crimes. His history of
convictions for possession and distribution of cocaine and
marijuana contradicts Dennis’ assertion that he was not
predisposed to commit the crime of possessing and
distributing cocaine. Dennis’ attempt to distinguish his
record of dealing in small quantities of cocaine from the large
quantity of cocaine at issue here is unavailing. See, e.g.,
United States v. Blitch, 773 F.3d 837, 845 (7th Cir. 2014)
(finding that a prior conviction for delivering nine grams of
cocaine “demonstrate[d] that [the defendant] was predisposed
to join a drug trafficking conspiracy” that dealt in kilogram
quantities of cocaine), as amended on denial of reh’g and
reh’g en banc (Jan. 27, 2015), cert. denied sub nom. Carwell
v. United States, 135 S. Ct. 2371 (2015). Similarly, we are
not convinced that his marijuana conviction has little
relevance because this case involved cocaine—both involve
the distribution of large quantities of illegal drugs. See United
States v. Gambino, 788 F.2d 938, 945–46 (3d Cir. 1986)
(stating that evidence of trafficking cocaine was relevant for
determining whether the defendant was predisposed to
distribute heroin); United States v. Simtob, 901 F.23d 799,
807 (9th Cir. 1990) (“Where entrapment is in issue . . . prior
drug offenses [can be relevant] if the earlier conviction tends
to prove that defendant was engaged in illegal operations in
some way similar to those charged in the indictment, even if
the drugs involved may be different.”). Putting all of this
evidence together leads us to conclude Dennis had a
predisposition to distribute kilograms of cocaine.
Finally, we are not persuaded by Dennis’ suggestion
that the drug conviction should be reversed solely because it
is entwined with the robbery and firearm convictions. As we
19
have previously discussed, a defendant must produce
evidence that he lacked the predisposition to commit the
crime for which he is charged to receive an entrapment
instruction. The fact that a defendant is charged with multiple
counts arising from the same course of conduct does not
vitiate the burden to do so for each count for which the
defendant seeks an instruction. As the Eleventh Circuit Court
of Appeals persuasively reasoned when faced with a similar
question:
[E]ven if the counts charged in the
Indictment formed part of the
same course of conduct, and even
if [the defendant was] induced as
to all counts, there is still the
question of whether [he was]
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.
United States v. Isnadin, 742 F.3d 1278, 1302 (11th Cir.
2014) (upholding an instruction that allowed a jury to
evaluate entrapment on a count by count basis); see also
United States v. Millet, 510 F.3d 668, 674–78 (7th Cir. 2007)
(upholding a district court’s decision to instruct the jury on
entrapment related to a gun charge, while refusing an
entrapment instruction pertaining to related drug charges), as
amended on denial of reh’g en banc (June 27, 2008). Here,
20
Dennis failed to show a lack of predisposition for his drug
conviction, but was successful in doing so for his conspiracy
to commit robbery and firearm possession convictions. Thus,
he was entitled to an entrapment instruction as to the latter,
but not the former. As each conviction exists independently;
so, too, must the justifications for an accompanying
entrapment instruction.
IV.
Outrageous Prosecution
Dennis contends not only that he is deserving of a new
trial, he also asserts that the indictment against him should be
dismissed on the basis of an outrageous prosecution that
violated his constitutional right to due process.9 The
evidentiary burden is exceedingly great, requiring the
defendant to show that the government essentially “created
the crime for the sole purpose of obtaining a conviction.”
United States v. Pitt, 193 F.3d 751, 759-60 (3d Cir. 1999).
Accordingly, dismissal under this circumstance is rare,
occurring only where the government’s conduct is “shocking,
outrageous, and clearly intolerable.” United States v. Nolan-
Cooper, 155 F.3d 221, 231 (3d Cir. 1998). This
constitutional claim “should be accepted by a court only to
‘curb the most intolerable government conduct.’” United
States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983) (quoting
Jannotti, 673 F.2d at 608).
9
We review the District Court’s factual findings for clear
error, and give plenary review to its legal conclusions.
United States v. Christie, 624 F.3d 558, 572 (3d Cir. 2010).
21
Much of Dennis’ argument supporting his assertion of
outrageous prosecution reiterates claims he made in the
context of his appeal regarding entrapment. 10 Dennis
contends that the Government created the crimes; that it had
no credible basis for asserting that he was supporting himself
and his family with criminal activity, nor any basis for
suspecting Dennis would participate in the crimes; that the
Government actively encouraged Dennis to participate in the
crimes; and finally, that it provided the necessary information
and implements for the crime. However, “a successful due
process defense must be predicated on intolerable government
conduct which goes beyond that necessary to sustain an
entrapment defense.” Jannotti, 673 F.2d at 607. Dennis must
do more than merely show enough to convince a judge that a
reasonable juror could doubt his predisposition or intent to
commit the crime.
We dismissed a claim of outrageous prosecution in
Beverly even though the entrapment defense was raised and
instructed. Beverly, 723 F.2d at 12-13. Similar to the instant
case (if we accept Dennis’ testimony as true), the ATF agent
in Beverly: induced a person introduced by an informant to
10
Dennis argues for the first time on appeal that the
Government structured the crime to maximize Dennis’
punishment, and that the ATF’s reverse sting operations
disproportionately target men of color, like Dennis. We are
not persuaded by Dennis that good cause exists for us to
exercise our discretion to review them or, alternatively, to
remand the issue to the District Court for further fact finding.
The record provides no indicia of an outrageous abuse of the
Government’s prosecutorial authority here.
22
commit a crime, supplied him with items necessary to carry it
out, and transported him to the location where the crime was
to be committed. Id. In our dismissal, we noted the Supreme
Court’s admonishment to refrain from exercising ‘“a
Chancellor’s foot’ veto over law enforcement practices of
which it [does] not approve.’” Id. at 13 (alteration in original)
(quoting United States v. Russell, 411 U.S. 423, 435 (1973)).
The same rationale applies here.11
V.
Conclusion
For all of the reasons stated above, we will reverse the
judgment of conviction and sentence only on Count I,
conspiracy to commit robbery pursuant to 18 U.S.C. §
1951(a), and Count III, using and carrying a firearm during
and in relation to a crime of violence pursuant to 18 U.S.C. §
924(c)(1)(A)(i). We will remand to the District Court for a
new trial. The judgment of conviction and sentence is
affirmed on Count II, conspiracy to distribute and possess
with intent to distribute cocaine in violation of 21 U.S.C.
§841(a)(1) and 21 U.S.C. §841(b)(1)(A).
11
Because we are reversing and remanding for a new trial on
the robbery and firearm counts of the indictment, we will not
address Dennis’ remaining claim that his sentence of fifteen
years violated the Eighth Amendment.
23
AMBRO, Circuit Judge, dissenting in part and concurring in
part
Offered the chance to participate in a stash house
robbery, Ralph Dennis agreed without hesitation. This case is
thus a straightforward application of the Supreme Court’s rule
that a defendant is not entitled to an entrapment instruction
when the evidence shows, at most, that the Government
“merely afforded an opportunity or facilities for the
commission of the crime.” Mathews v. United States, 485
U.S. 58, 66 (1988). Despite Dennis’ eager participation, the
majority concludes that the District Court was required to
instruct the jury on entrapment. Because I believe that
conclusion fails to follow Mathews, I respectfully dissent
from that portion of the opinion. Meanwhile, I join the
majority’s due process analysis but write separately to
express some concerns about the practice of stash house
reverse stings.
We have held, based on Mathews, that “evidence of
mere solicitation, as a matter of law, is not germane to the
jury’s determination of entrapment.” United States v. Marino,
868 F.2d 549, 552 n.6 (3d Cir. 1989). In Marino, a
Government informant asked an attorney to deal in stolen
securities. Id. at 550. The attorney agreed and thereafter
became an active participant, initiating communication with
the informant and attending secretive meetings. Id. at 550–51.
We held that the District Court “correctly refused to instruct
the jury on entrapment” because the informant “merely
offered [the defendant] the opportunity to commit the
offense” and because, after receiving the offer, he “exhibited
no reluctance.” Id. at 554.
Same here. As the District Court explained, the record
lacks “even the slightest indication of reluctance . . . to
1
participate in this crime.” App. 96.1 And once Dennis joined
the conspiracy, he contributed enthusiastically. For instance,
he brought in two other co-conspirators (John Mitchell and
Terrance Hardee) and helped choreograph the planned
robbery by suggesting that the crew should tie up the guards
in the stash house.
Recognizing that mere solicitation is not enough, we
have set out a non-exhaustive list of ways that a defendant
can demonstrate entitlement to an entrapment instruction.
These avenues include showing “persuasion, fraudulent
representation, coercive tactics, [or] pleas based on need,
sympathy, or friendship.” United States v. Fedroff, 874 F.2d
178, 185 (3d Cir. 1989). The majority rests its analysis
primarily on the last item in the list—“pleas based on need,
sympathy, or friendship.” It contends that “Burk’s personal
relationship to Dennis contributed to the operation by
allowing Burk to appeal to Dennis’ sympathies based on the
story of Burk’s sick mother whom Dennis had met on a
number of occasions.” Maj. Op. at 13.
1
As the majority notes, Dennis testified that he had
previously turned down other requests from Kevin Burk, the
confidential informant, to commit similar crimes. The
majority properly avoids suggesting that these incidents bear
on inducement. Rather, it correctly contains its discussion of
them to the predisposition prong. The stash house robbery
was the first crime that Burk proposed to Dennis on behalf of
the Government. Entrapment is concerned with inducement
by the Government, not with requests made by private parties
with their own agendas. See, e.g., United States v.
Squillacote, 221 F.3d 542, 573 (4th Cir. 2000) (noting that a
“defendant who was induced to commit a crime by a private
party, without any government involvement, cannot claim
that he was entrapped”).
2
Though there is a low bar for getting a jury instruction
on entrapment, doing so based on personal relationships is
relatively difficult. See, e.g., United States v. Evans, 216 F.3d
80, 90 (D.C. Cir. 2000) (“Although we have in the past
indicated that [such pleas] can satisfy the inducement prong
of an entrapment defense, we have never found such a plea
sufficiently strong to do so.”). But here the problem runs
deeper. Though Dennis testified at length, he never said that
sympathy for Burk’s mother had anything to do with his
decision to join the conspiracy to rob the stash house.
The majority acknowledges this problem. It concedes
that it is “true that Dennis never uttered the words that
‘friendship motivated his participation’ in the stash house
scheme,” but it nonetheless finds “a plea of friendship to lie at
the basis of Burk’s plea for help.” Maj. Op. at 14 n.6. My
colleagues base this conclusion on Dennis’ testimony that he
told Burk that the money from the robbery “is really gonna
help your mother.” Id. (quoting App. 1138). But Dennis’
recognition that the money would help Burk’s mother does
not mean that this caused him to agree to the robbery. Our
duty to interpret the record in Dennis’ favor does not include
an obligation (or, for that matter, a license) to put words in his
mouth. If Dennis had said he perceived an obligation to help
Burk’s mother, the majority would be on stronger footing.
But he did not, and we should not proceed as though he had.
Apart from the sympathy theory, the majority also
emphasizes that the ATF did not have Dennis on its radar
prior to the sting. However, it never explains how this relates
to inducement. As discussed below, the Government’s
selection of targets might bear on a due process analysis. But
the question for our purposes is not how the Government
found Dennis, but rather the methods it employed to secure
his willingness to commit a crime. Ultimately, the evidence
3
shows that Dennis did not take much (or even any)
convincing.
None of this should suggest that entrapment
instructions are unavailable in the context of stash house
reverse stings. In fact, they frequently are required. For
instance, the Seventh Circuit, sitting en banc, determined that
a defendant had a right to an instruction because the
Government engaged in a “concerted effort” to get him to
agree to rob a stash house. United States v. Mayfield, 771
F.3d 417, 421 (7th Cir. 2014) (en banc). The defendant
declined all of the initial offers, but the Government’s
informant persisted by bringing up the subject “[e]ach day”
over an extended period. Id. This is classic evidence of
inducement.
But less than a month later, a panel of the Seventh
Circuit decided another stash house reverse sting case that
looks a lot more like ours, and it concluded that no
entrapment instruction was required. My colleagues suggest
that this second case, United States v. Blitch, 773 F.3d 837
(7th Cir. 2014), as amended on denial of reh’g and reh’g en
banc (Jan. 27, 2015), is helpful to their approach. I disagree,
as it is difficult to imagine a more factually similar example
of why an entrapment instruction is not required here.
Let’s start with the facts of Blitch. There, as here, an
ATF agent played the role of a disgruntled courier for a cartel
and recruited a confidential informant to find individuals
willing to rob a large quantity of drugs. Id. at 840. If
anything, the informant’s incentives were more of a problem
in Blitch than they were here. That is because the Blitch
informant had agreed, as part of a plea, to assist in the arrest
and indictment of a specific number of individuals (ten), and
he was applying the stash house robbery participants toward
that quota. Id. Like Rock did here, the agent in Blitch offered
4
the defendants a way out if they had cold feet, but (as Dennis
did) they remained enthusiastically committed. Id. at 842.
And, as was true here, the informant in Blitch was actively
involved in the sting. For instance, he asked one of the
defendants to find another participant, discussed how the
robbers would split the haul, set up a meeting with the
undercover agent, and called the crew the night before the
would-be heist to provide details. Id. at 840–42.
The panel in Blitch contrasted its facts with those in
Mayfield. Whereas the latter involved a drawn-out courtship
between the Government and a reluctant participant, Blitch
featured a “take-it-or-leave-it proposition” where the
Government merely presented a crime without extensively
lobbying the defendants to participate. Id. at 845. The Court
concluded that the defendants “were not subject to anything
that would transform the government’s solicitation into
something more than an ordinary opportunity to commit a
crime,” and it rejected the argument that the “promise of
obtaining a large amount of drugs, in addition to hundreds of
thousands of dollars of actual cash on hand, qualifies as
improper inducement.” Id. at 844–45 (internal quotation
marks omitted). Thus, far from helping the majority, Blitch
rejects its reasoning.
Because there is not sufficient evidence of inducement,
Dennis is not entitled to a jury instruction even if he could
establish a lack of predisposition. See Marino, 868 F.2d at
551 n.3 (“Consequently, if the defendant does not produce
sufficient evidence of inducement, his evidence of non-
predisposition alone would not warrant an entrapment
charge.”). The threshold that a defendant must cross to get an
instruction is not high, but Dennis has failed to meet his
burden. I would therefore affirm the District Court’s ruling on
the entrapment instruction.
5
Dennis also raises a due process challenge. My
determination that he was not entitled to an entrapment
instruction does not foreclose concluding that the indictment
should be quashed due to egregious conduct by the
Government. See, e.g., United States v. Jannotti, 673 F.2d
578, 608 (3d Cir. 1982) (en banc) (noting that “a finding of
no entrapment does not preclude the availability of a due
process defense”). As the majority notes, however, this claim
falls short. I write nonetheless on this point to express my
concern about the constitutional implications of stash house
reverse stings.
The Government wields tremendous power in
investigating crimes. Here it exercised that authority to create
from whole cloth a fictitious crime and to prosecute someone
for a robbery that could not have been committed. There was
no stash house, no cartel, and no cocaine. This is not an
isolated occurrence. According to a 2013 article, over 1,000
people have been arrested (and at least 600 have been
prosecuted) in connection with attempting to rob fictitious
stash houses. See Brad Heath, ATF Uses Fake Drugs, Big
Bucks to Snare Suspects, USA Today, June 28, 2013, at 1A.
The Constitution affords great deference to the Government’s
investigative choices, but it does draw a line: indictments
based on outrageous conduct cannot stand. No court of
appeals has found that the Government has crossed that line
in setting up a stash house reverse sting. But it appears that
the Government has been tiptoeing near the line.
For instance, in United States v. Black, 733 F.3d 294
(9th Cir. 2013), the Government sent an informant into “a bad
part of town” to look for strangers willing to rob a stash
house. Id. at 299 (internal quotation marks omitted). The
targeting was not based on any suspicion that the people
approached were in any way predisposed to commit the
6
crime. The majority concluded that there was not a due
process violation. Judge Noonan dissented, writing:
[T]he imaginary stash house . . . gives the
government essentially unchecked power to
increase the number of persons drawn in as
robbers by supplying the number of imaginary
guards for the drugs and by supplying the
amount of imaginary drugs that are supposed to
be present. The power exercised by the
government is not only to orchestrate the crime
but to control and expand those guilty of it. I do
not see how this power can be rationally
exercised. No standard exists to determine the
limits of the government’s discretion.
Id. at 318 (Noonan, J., dissenting). And when the Ninth
Circuit declined to rehear the case en banc, Judge Reinhardt,
joined by then-Chief Judge Kozinski, dissented. They wrote
that the majority opinion sent “a dangerous signal that courts
will uphold law enforcement tactics even though their threat
to values of equality, fairness, and liberty is unmistakable.”
United States v. Black, 750 F.3d 1053, 1054 (9th Cir. 2014)
(Reinhardt, J., dissenting from denial of rehearing en banc).
Black is a cautionary tale about what can result if the
power to create crimes is employed without constraints. Our
facts are not nearly as severe. The Government did not, as it
did in Black, select a defendant at random. Rather, a
confidential informant provided information about Dennis’
criminal past, much of which the Government was able to
corroborate, before the sting was approved. But that does not
make the critique wholly inapplicable. Unlike Judge Noonan,
I do not find it impossible for the Government to exercise its
discretion rationally to set up stash house reverse stings. But I
7
share the concern that this practice, if not properly checked,
eventually will find itself on the wrong side of the line.
Until then, courts can only play a limited role in
policing investigative priorities. We are judges and not
policymakers, and our lodestar is outrageousness and not
imprudence. But what we can do is distinguish our narrow
constitutional analysis from a broad stamp of approval. As we
explained in an analogous context, “[t]his conclusion . . .
should not be construed as an approval of the government’s
conduct. To the contrary, we have grave doubts about the
propriety of such tactics. Although we cannot say that such
conduct in and of itself violates the Constitution, it may
illustrate the necessity for greater oversight so that
questionable police practices can be curbed before they
violate our most fundamental laws.” United States v. Beverly,
723 F.2d 11, 13 (3d Cir. 1983). I echo these sentiments here.
8