United States v. Steven Thomas , 669 F. App'x 893 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30235
Plaintiff-Appellee, D.C. No.
2:14-cr-00096-JCC-1
v.
STEVEN ASIR THOMAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 6, 2016**
Seattle, Washington
Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.
Steven Asir Thomas appeals his convictions and sentences for conspiracy to
distribute methamphetamine, cocaine and marijuana, 21 U.S.C. § 841(a)(1),
841(b)(1)(A) & 846; money laundering, 18 U.S.C. § 1956(a)(3) & 1956(b)(1); and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
conspiracy to possess firearms in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(o). We have jurisdiction under 18 U.S.C. § 1291, and we affirm.
1. The entrapment defense has two elements: first, the defendant was
induced to commit the crime by a government agent, and second, he was not
otherwise predisposed to commit the crime. See United States v. Jones, 231 F.3d
508, 516 (9th Cir. 2000). Here, viewing the evidence in the light most favorable to
the government, a reasonable jury could have concluded the government proved
beyond any reasonable doubt that Thomas was not induced and that he was
predisposed to commit the crimes of which he was convicted. See id.
With respect to the first element, Thomas contends he was induced to
commit his crimes because the government promised him investments in his
nightclub at a time when he was desperate for funds and because the government
gave him large sums of a money at low risk. Large monetary rewards, however,
are the prototypical criminal motivation for drug dealing and money laundering
and do not provide a basis for establishing inducement. See United States v.
Spentz, 653 F.3d 815, 820 n.4 (9th Cir. 2011) (“[T]he reward promised cannot be
the criminal reward but must be some other, non-criminal reward that the
individual receives for committing the crime.”). A reasonable jury also could have
rejected Thomas’ contention that he committed these crimes because he feared
2
Agent Hunt due to an outstanding debt. Hunt testified he never threatened
Thomas. More importantly, Thomas engaged in money laundering and drug
transactions with Hunt before he owed him money. Thomas incurred his debt only
after willingly accepting money to launder.
As to the second element, Thomas contends he was reluctant to engage in
kilogram-level methamphetamine deals, to possess firearms and to launder money
through his nightclub. See Jones, 231 F.3d at 518 (reluctance to engage in criminal
activity is the most important consideration in a predisposition inquiry). But the
government presented evidence showing Thomas engaged in kilogram-level
cocaine deals before Armstrong became a government agent. A recorded
conversation revealed that (unrelated to his dealings with Hunt) Thomas purchased
a handgun to provide as a gift to one of his cartel contacts in order to further his
drug activities. Thomas also said he went into the nightclub business to “take care
of [his] other activities,” an apparent reference to the alleged conduct. On this
record, a reasonable jury could have concluded beyond any reasonable doubt
Thomas was predisposed to commit his crimes.
2. Sentencing entrapment occurs when a defendant is “predisposed to
commit a lesser crime, but is entrapped by the government into committing a crime
subject to more severe punishment.” United States v. Mejia, 559 F.3d 1113, 1118
3
(9th Cir. 2009). The defendant has the burden to show by a preponderance of the
evidence he lacked the intent and the capability to produce the quantity of drugs.
See id. We review for abuse of discretion the district court’s decision to reject
Thomas’ sentencing entrapment argument. See id.1
The district court does not appear to have addressed this argument on the
record, which would constitute procedural error. See United States v. Carty, 520
F.3d 984, 992-93 (9th Cir. 2008) (en banc). Thomas, however, does not raise that
argument, so it is waived. The district court’s rejection of the sentencing
entrapment argument was not “illogical,” “implausible” or “without support in
inferences that may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1262 (2009) (en banc) (internal quotation marks omitted).
Thomas produced no evidence to show a reluctance to participate in the proposed
drug deals because of the quantity of drugs involved. The district court did not
abuse its discretion.
AFFIRMED.
***
1
Because Thomas did not request a sentencing entrapment instruction, we
do not consider whether the jury should have been instructed on this issue. See
United States v. Cortes, 757 F.3d 850, 863-64 (9th Cir. 2013).
4
Thomas’ pro se motion to stay direct appeal (Dkt. 42) is MOOT in light of
his subsequent decision to withdraw the motion (Dkt. 49).
5