United States v. Shane Hare
Concurring Opinion
concurring:
I agree completely with the legal analysis of the majority. I write separately to note that, unlike the majority, I am not troubled by the investigation and prosecution of these defendants. The evidence presented in this ease shows that these defendants were willing to undertake criminal acts — including violent acts — in connection with the armed robbery of illegal drugs. Law enforcement did not independently recruit these defendants; rather, they were part of a “crew” who were willing to be involved in the armed robbery at the behest of their leader, Bowden, who enlisted their involvement. Moreover, the defendants had the opportunity to present their theory of entrapment to the jury but, not surprisingly under the facts of this case, the jury believed these defendants were predisposed to be involved in the charged offenses.
In short, as the majority correctly holds, the Government conducted itself lawfully, and these defendants were properly convicted and sentenced. There is nothing troubling in that.
Opinion of the Court
Affirmed by published opinion. Judge-FLOYD wrote the' opinion, in which Judge SHEDD and Judge BIGGS joined. Judge SHEDD wrote a separate concurring opinion.
. A jury convicted Appellants Shane Hare, Gregory Williams, and Antonio Edwards of drug, robbery, and firearm offenses based on their participation in a plan to rob a cocaine “stash house.” Unbeknownst to. Appellants, the stash house did not actually exist,, but was fabricated by undercover federal agents as part of a sting operation. Appellants challenge the district court’s denial of their motion for discovery into potential race discrimination by law enforcement and motion to dismiss the indictment on due process grounds. They also challenge various other aspects of their convictions. For the reasons set forth below, we affirm.
I.
In February 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) received information from a confidential informant identifying Marvin Bowden as an armed drug trafficker and suspect in several burglaries, armed robberies, and home invasions in Prince George’s County, Maryland. Based on this • information, ATF and the Prince George’s ■ County Police Department (PGPD) initiated an undercover operation whereby they would present Bowden with the opportunity to rob a fictitious cocaine stash house and, if all went according to plan, ultimately arrest him. and any accomplices for conspiring to traffic drugs and related crimes.
On April 19, 2013, PGPD undercover detective William Weathers met with Bow-
On May 3, 2013, ‘Detective Weathers again met with Bowden and' introduced him to ATF Special Agent Christopher Rogers, also acting undercover.
On May 9, 2013, Agent Rogers met with Bowden and his crew, consisting of Appellants Hare, Williams, and Edwards. Bow-den himself recruited Appellants, none-of whom were previously known to ATF. At the meeting, Agent Rogers repeated his story of being a disgruntled drug courier looking for a crew to rob his cartel’s stash house. Agent Rogers stated that he wanted to keep 2 kilograms of cocaine for himself but the' crew could divide whatever else they were able- to seize, emphasizing that the stash house contained 10 to 15 kilograms of cocaine. He also cautioned that the stash house guards had a “chopper” (i.e., an automatic weapon). The crew (led by Edwards) discussed how to execute the robbery. They decided that the fastest two, Hare and Williams, would enter first while shouting “police!” and secure the chopper. Bowden and Edwards would follow and secure, the guards using zip ties and duct tape. If necessary, Appellants and Bowden would shoot the guards below the waist but would not shoot to kill. When Agent Rogers asked if Appellants had weapons, Edwards replied “[everybody got their • own. gun,” and Williams confirmed, “[t]hat ain’t no problem.” J.A. 780. Edwards also proposed a “Plan B” in case they were unable to enter the stash house. .Under Plan B, Bowden and Appellants would pretend to rob Agent Rogers of his 5 kilogram shipment, and the group would split the lesser amount. Agent Rogers stated that he could procure a rental car . for their getaway. Appellants agreed to. the plan and gave Agent Rogers their phone numbers.
Appellants, Bowden, and Agent Rogers next met on -May 14, 2013. Agent Rogers informed the group that his next drug pick-up would be at 1:00 p.m. two days later, on May 16, which is when the robbery would occur. . Edwards, confirmed that the group was “ready.” J.A. 795. Agent Rogers advised that they should be assembled by 10:00 a,m. on the day of the robbery, and Bowden proposed staying in a hotel the. night before so they would already be together. The crew (again led by Edwards) reviewed the plan (i.e., Plan
On May 16, 2013, Bowden and Appellants met Agent Rogers at a storage facility, which was the predetermined staging location for the robbery. The crew confirmed that they were ready to proceed and reviewed both Plan A and Plan B. Williams confirmed that they would be armed. Agent Rogers then gave the take-down signal and ATF 'agents surrounded the group, arresting Bowden and Appellants. ATF agents recovered a Kimber brand firearm'from inside a locked glove box in Bowden’s vehicle, a Beretta brand firearm that Hare had thrown under thé vehicle, a black mask, and a pair of gloves.
Appellants were each charged with the same four counts: (1) conspiracy to interfere with commerce by robbery (i.e., a “Hobbs Act” robbery), in violation of 18 U.S.C. § 1951(a); (2) conspiracy to possess with the intent to distribute, cocaine, in violation of 21 U.S.C. § 846; (3) conspiracy to possess a firearm in furtherance of a drug trafficking crime or a crime of violence, in violation of 18 U.S.C. § 924(o); and (4) possession of a firearm in furtherance of a drug trafficking crime or a crime of. violence, in violation of 18 U.S.C. § 924(c).
• Before trial, Appellants moved for discovery into whether race played a role in ATF’s decision to target Bowden and Appellants for a stash house sting operation. The district court denied the motion, though it ordered the government to produce to Appellants one page out of ATF’s training materials for conducting such operations. Appellants also moved to dismiss the indictment on the ground that the government had engaged in outrageous conduct that violated their due process rights. The district court denied this motion as well.
After a seven-day trial, .the jury returned a special verdict finding Appellants guilty on all counts. The district court sentenced Hare to 132 months of imprisonment, Williams to 150 months, and Edwards to 240 months. Appellants filed this appeal challenging, among other things, the district court’s denial of their motion for discovery and motion to dismiss, as well as their convictions for the firearm offenses in Counts 3 and 4.
H.
A.
. Appellants first contend that the district court erred in denying their motion for discovery into whether ATF targeted Bow-den and Appellants for a stash house sting operation because they are black, i.e., whether ATF engaged in selective enforcement. In support of their motion, Appellants presented evidence indicating that there , had been a total of 5 stash house sting cases prosecuted in- the District of Maryland since 2011 (including this case) and that all 20 defendants in those cases were black. On appeal, Appellants have
The district court denied Appellants’ motion, finding that their evidence did not satisfy the standard for discovery set forth in United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). Nevertheless, the court ordered the government to investigate whether ATF had a manual or “playbook” related to stash house sting operations and to provide any such manual to the court for in camera review. The government produced an ATF operations manual that was created in July 2013, after the events in this case. The government indicated, however, that ATF agents in the District of Maryland had been trained in conducting stash house stings prior to their investigation of Bowden and Appellants; The court ordered the government to provide any such training materials to the court for in camera review. After reviewing the government’s submission, the court ordered the government to produce to Appellants one page, which set forth the “procedures and guidelines for selecting a target.” Suppl. J.A. 5. The court noted that while “this page is not in any way suggestive of discriminatory animus, disclosure is warranted insofar as [Appellants] would otherwise have no way of learning the government’s criteria for selecting targeted individuals.” Id. at 5-6. On appeal, Appellants contend that they should not be held to the Armstrong standard as it applies to claims of selective prosecution rather than selective enforcement, and that their evidentiary showing entitles them to discovery beyond what was ordered by the district court. Our review is de novo. See United States v. Venable, 666 F.3d 893, 900 (4th Cir. 2012).
B.
In Armstrong, the Supreme Court addressed the standards of proof applicable to a claim of selective prosecution, i.e., a claim that the “prosecutor has brought the charge for reasons forbidden by the Constitution,” such as race. 517 U.S. at 463, 116 S.Ct. 1480. The Court explained that the Attorney General and United States Attorneys, having been designated by the President to help execute the nation’s laws, enjoy “broad discretion” and a “presumption of regularity” in their prosecuto-rial decisions. Id. at 464, 116 S.Ct. 1480 (quotations omitted). “In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary” by demonstrating that a prose-cutorial policy “had a discriminatory effect and ... was motivated by a discriminatory purpose.” Id. at 465, 116 S.Ct. 1480
The standard for obtaining discovery, in support of a selective prosecution claim ¡is only “slightly lower” than for proving the claim itself. Venable, 666 F.3d at 900. Instead of presenting “clear evidence,” the “defendant must produce ‘some evidence’ making a ‘credible showing’ of both discriminatory effect and discriminatory intent.” Olvis, 97 F.3d at 743. Because discovery imposes “many of the costs present when the Government must respond to a prima facie case of selective prosecution,” the standard for obtaining discovery is “correspondingly rigorous” and “should itself be a significant barrier to the litigation of insubstantial claims.” Armstrong, 517 U.S. at 464, 468, 116 S.Ct. 1480.
This Court has adopted Armstrong’s standard for proving selective prosecution as the standard for proving selective enforcement. See United States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996). We have not, however, specifically addressed whether Armstrong’s standard for discovery applies in the selective enforcement context. Nevertheless, this standard provides the starting point for our analysis of Appellants’ discovery motion.
Appellants’ statistical evidence, indicating that all 32 defendants prosecuted in stash house sting cases in the District of Maryland have been black, does not meet Armstrong’s discovery standard. We have explained that “absent an appropriate basis for comparison, statistical evidence [of racial disparity] alone cannot establish any element of a discrimination claim.” Olvis, 97 F.3d at 745. In Olvis, the defendants presented evidence showing that in the Norfolk-Newport News area of Virginia, “more than 90%. of those indicted ... since 1992 for crack cocaine trafficking are black.” 97 F.3d at 741, 745. We found this insufficient to demonstrate a discriminatory effect, as the data provided “no statistical evidence on the number of blacks who were actually committing crack cocaine offenses or whether a greater percentage of whites could have been prosecuted 'for such crimes.” Id. at 745. “Without an appropriate basis for comparison, raw data about the percentage of black crack cocaine' defendants prove[d] nothing.” Id. Similarly, in Venable, we found that statistics showing that blacks made up approximately 87% of those charged- with certain firearm offenses in the Eastern District of Virginia did not constitute evidénee of discriminatory intent, as the data provided “no statistical evidence about the number of blacks who were actually committing firearms offenses dr whether a greater percentage of whites could have been prosecuted for such crimes.” 666 F.3d at 903.
Appellants’ statistical evidence similarly provides no appropriate basis for comparison, as it contains no data on similarly situated white individuals who could have been targeted for stash house sting investigations but. were not. Instead, Appellants point to one white crew “involved in robberies and drug distribution” in the District of Maryland. Appellants Br. 36. It is far from clear, however, that this crew is “similarly situated,” in the sense that “their circumstances present no distinguishable legitimate [enforcement] factors that might justify making different [enforcement]' decisions with respect to them.” See Venable, 666 F.3d at 900-01. While a Department of Justice press release indicates that' the Paschall defendants were involved in drug trafficking and
Even if we assumed that Appellants’ statistical evidence “had a basis for comparison that showed discriminatory effect, it would not necessarily prove discriminatory intent.” Olvis, 97 F.3d at 746. As a general matter, “in cases involving discretionary judgments ‘essential to the criminal justice process,’ statistical evidence of racial disparity is insufficient to infer ... a discriminatory purpose.” Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). Appellants’ statistical evidence, with its relatively small sample size and weak basis for comparison, is clearly insufficient. See id. at 745. Because Appellants offer ho other evidence that ATF’s actions were--“invidious or in bad faith,” they have not shown discriminatory intent.
Appellants argue, however, that their selective enforcement claim should not be held to the discovery standard articulated in Armstrong for claims of selective prosecution. Appellants highlight important differences in proving the two types of claims. 1 First, Appellants note that it is considerably harder to demonstrate that a law enforcement action has a discriminatory effect, as there are less likely to be records of similarly situated individuals who were never investigated' or arrested. As the Seventh Circuit has explained, in a case involving racial profiling in traffic stops:
In a meritorious selective prosecution claim, a criminal defendant would be able to name others arrested for the same offense who were not prosecuted by the arresting law enforcement agen*101 cy; conversely, plaintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation,. be able to provide the names of other similarly situated motorists whp were not stopped.
Chavez v. Illinois State Police, 251 F.3d 612, 640 (7th Cir. 2001). In the stash house sting context, a defendant would face considerable difficulty obtaining credible evidence of similarly situated individuals who were not investigated by ATF. Even if a defendant could, for example, use state or federal prosecutions to identify white individuals involved in drug offenses or armed robberies, without discovery into what ATF knew about these individuals, the defendant would be hard pressed to demop-strate that there were no distinguishing factors that would justify different enforcement treatment.
. Second, Appellants note that Armstrong was primarily concerned with respecting the province of federal prosecutors, who are “designated by statute as the President’s delegates to help him” execute the nation’s laws, and thus enjoy a. “presum[ption] that they have properly- discharged their official duties.” Armstrong, 517 U.S. at 464, 116 S.Ct. 1480. Law enforcement officers, however, are not accorded equal deference. Again, the Seventh Circuit offers cogent analysis:
Agents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior. Unlike prosecutors, agents regularly testify in criminal cases, and their credibility may be relentlessly attacked by defense counsel. They also may have to testify in pretrial proceedings, such as hearings on motions to suppress evidence, and 'again their honesty is open to challenge. ' Statements that agents make in affidavits for search or arrest warrants may be contested, and the court may need their testimony to decide whether if shorn of untruthful statements the affidavits would have established probable cause.... Before holding hearings (or civil trials) district judges regularly, and properly, allow discovery into nonprivileged aspects of what agents have said or done. In sum, the sort of considerations that led to the outcome in Armstrong do not apply to a contention that agents of "the FBI or ATF engaged in racial discrimination when selecting targets for sting operations, or when deciding which suspects to refer for prosecution.
United States v. Davis, 793 F.3d 712, 720-21 (7th Cir. 2015) (en banc) (finding evidence that the “overwhelming majority” of defendants prosecuted in stash house sting cases in the Northern District of Illinois were black or Hispanic sufficient to warrant discovery on an incremental basis).
Appellants’ arguments are well taken. However, even if we assume that their evidentiary showing is sufficient to warrant discovery into selective enforcement, Appellants have not shown that they are entitled to discovery beyond what the government has already produced. The government has already provided Appellants with ATF’s criteria for choosing a stash house sting target, and the district court reviewed an even broader set of ATF documents for information relevant to Appellants’ selective enforcement claim. ATF’s selection criteria do not suggest any discriminatory motive. Instead, they indicate that ATF followed its protocol in selecting Bowden as a target, and Bowden, not ATF, recruited Appellants. We conclude that Appellants have received all the discovery to which they are entitled, and affirm the district court’s denial of their motion for discovery.
Appellants next challenge the district court’s denial of their motion to dismiss the indictment on due process grounds. Because the relevant facts are not in dispute, our review is de novo. See United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).
Appellants claim that ATF’s conduct in this case was so egregious as to violate their Fifth Amendment due process rights and thus preclude prosecution. They invoke the theory, first articulated in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), that there may be “a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. 1637. We have previously observed that the “outrageous conduct” doctrine is “highly circumscribed,” United States v. Hasan, 718 F.3d 338, 343 (4th Cir. 2013), and applies “only in rare cases.” United States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994). The government’s actions “must be ‘shocking* or ‘offensive to traditional notions of fundamental fairness.’” Hasan, 718 F.3d at 343 (quoting United States v. Osborne, 935 F.2d 32, 37 (4th Cir. 1991)). See also Osborne, 935 F.2d at 36 (noting the “high shock threshold” of appellate courts faced with “extremely unsavory government conduct”). “As a practical matter, only those claims alleging violation of particular constitutional guarantees are likely to succeed.” United States v. Jones, 13 F.3d 100, 104 (4th Cir. 1993).
Appellants’ theory as to a due process violation is less than clear. However, their primary arguments appear to be that ATF behaved outrageously by failing to investigate whether Appellants were predisposed to committing stash house robberies or similar crimes, and by providing an inducement so lucrative as to be unreasonable.
The government does not deny that ATF had no knowledge of Appellants before Bowden introduced them to Agent Rogers, and that ATF subsequently undertook no investigation to determine whether they had' violent criminal histories and were therefore appropriate targets for a stash house sting. Indeed, it appears that Hare and Williams have only minimal criminal records and no record of violent crimes. See J.A. 176, 180. While this is troubling, particularly since Appellants now each face more than 10 years of imprisonment, it does not rise to the level of outrageous conduct.
We also do not find outrageous the size of the inducement, 15 to 20 kilograms of cocaine in total.
Finally, we do not find it outrageous for ATF to utilize stash house stings as an investigative tool. We have noted that “[o]utrageous is not a label properly applied to conduct because it is a sting or reverse sting operation involving contraband.” United States v. Goodwin, 854 F.2d 33, 37 (4th Cir. 1988). Concededly, a stash house sting entails considerable government involvement — including direct solicitation of the target and total control over the parameters of the robbery, particularly the quantity of cocaine held in the fictitious stash house — and appears highly
IV.
Appellants next challenge their convictions for possessing a firearm in furtherance of a drug trafficking, crime or a crime of violence, in violation of ,18 U.S.C. § 924(c) (Count 4). Appellants contend that the district court’s instructions on aiding and abetting liability were erroneous under Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). Appellants also contend that under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), a Hobbs Act robbery does not constitute a crime of violence and therefore éannot serve as the predicate crime for a conviction under § 924(c), or the related conspiracy charge in Count 3. These arguments are unavailing.
A.
In Rosemond, the Supreme Court held that to establish a violation of § 924(c) based on the theory that the defendant aided and abetted the offense, the government must prove “that the defendant actively participated in the underlying drug trafficking or. violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” 134 S.Ct. at 1243. This is because “[w]hen an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or ... withdraw from the enterprise.” Id. at 1249. However, “when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance ... [or] may at that late point have no realistic opportunity to quit the crime.” Id, In such case, “the defendant has not shown the requisite intent to assist a crime involving a gun.” Id.
Appellants contend that the district court’s aiding and abetting instructions were erroneous because they did not require Appellants to know in advance that guns would be involved in the robbery. Because Appellants did not object to the instructions below, plain error review applies. United States v. Robinson, 627 F.3d 941, 953 (4th Cir. 2010). Appellants must show that “an error occurred, that the error .was plain, , and that the error affected
Assuming that the district court’s instructions were erroneous and the error was plain, we find that the error did not affect Appellants’ substantial rights. Hare admitted to possessing the Beretta firearm, and the verdicts against Williams and Edwards may be sustained under the Pinkerton theory of liability. “The Pinkerton doctrine makes a person liable for substantive, offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy.” United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010); The jury was properly instructed on Pinkerton liability and the evidence amply demonstrates that it was reasonably foreseeable to Williams and Edwards that a co-conspirator would possess a firearm. At each meeting, Williams and Edwards discussed the firearms the crew would bring and the possibility of shooting the stash house guards. At no point was it suggested that the crew would proceed without firearms, even in the context of Plan B. Thus, any error in the aiding and abetting instruction does not satisfy the plain error standard. See Robinson, 627 F.3d at 954 (explaining that under the plain error prejudice requirement, “where a defendant was indicted under multiple [theories] of an offense but subjected to erroneous jury instructions on one of those [theories,]” the defendant “must demonstrate that the erroneous instruction given resulted in his 'conviction,-not merely that it was impossible to tell under which [theory] the jury--convicted”). See also United States v. Saunders, 605 Fed.Appx. 285, 288-89 (5th Cir. 2015) (finding that Rose-mond error in aiding and abetting instruction-did not affect defendant’s substantial rights “because the jury was given a correct Pinkerton instruction” and it was “reasonably foreseeable that [defendant’s co-conspirator] would carry a gun to a bank robbery”); United States v. Young, 561 Fed.Appx. 85, 92 (2d Cir. 2014) (explaining that “even if there had been error regarding aiding and abetting” in light of Rosemond, “it was harmless because ample evidence supported [defendant’s] liability under Pinkerton ”).
B.
Appellants also challenge their firearm convictions on the ground that, after the Supreme Court’s decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), a Hobbs Act robbery no longer qualifies as a crime of violence. Thus, Appellants claim, their convictions in Count 1 for committing a Hobbs Act robbery cannot support their convictions in Count 4 for possessing a firearm in furtherance of a drug trafficking crime or a crime of violence, or the related conspiracy offense in Count 3.
We need not reach the merits of this argument.
V.
Appellants raise various other challenges to their conviction and sentences. We have reviewed Appellants’ arguments and find them to be without merit. Thus, we affirm the district court.
AFFIRMED
. ' ATF has conducted such investigations, also known as “home invasion” investigations, across the country, in recent years. See, .e.g., United States v. Davis, 793 F.3d 712 (7th Cir. 2015)(en banc); United States v. Black, 733 F.3d 294 (9th Cir. 2013); United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
. This meeting and the subsequent three meetings between Agent Rogers, Bowden, and Appellants were recorded and transcribed. ■
. Bowden entered a plea agreement and ultimately received a ten-year sentence.
. The government does not dispute Appellants’ statistics or their characterization of the Paschall case.
, See U.S. Atty’s Office, Dist. of Md., Dept, of Justice, 16 Defendants Charged In A Commercial Burglary Ring and Drug Conspiracy (July 18, 2013), https://www.justice.gov/usao-md/pr/ 16-defendants-charged-commercial-burglary-ringand-drug-conspiracy (describing defendants as committing "commercial burglaries, home invasión armed robberies, arsons and other crimes at convenience stores, gas stations, financial institutions, restaurants[,] homes and liquor stores,” in which "[slates and ATMs ’are primarily targeted and taken,” and "PJottery tickets and cigarettes are also taken along with other valuables”) (saved as ECF opinion attachment).
. Appellants allege that ATF 'was "willfully blind” to the racially disparate impact of its stash house sting operations; however, willful blindness does not evince discriminatory intent, as "discriminatory intent implies that the government ‘selected or reaffirmed a particular course of action at. least in part because of, not merely in spite of, its adverse effects upon an identifiable group.’" Venable, 666 F.3d at 903 (quoting Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)).
Appellants also suggest that ATF deviated from its protocol by failing to investigate Appellants' criminal backgrounds to ensure that they were violent offenders, and that such deviation is "evidence that improper purposes are playing a role.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). However, ATF protocol requires investigation of the target, in this case Bowden. The record indicates that ATF investigated Bowden and that he satisfied ATF’s criteria for a stash house isting target. Finally, that ATF presented Appellants with a lucrative opportunity involving more than 10 to 15 kilograms of cocaine does not suggest a discriminatory motive.
. Government inducement and a defendant’s lack of predisposition are the elements of an entrapment defense, See United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998). Appellants acknowledge that the district court allowed them to argue entrapment and gave the entrapment jury instruction they requested. On appeal, Appellants assert that they are not raising an entrapment claim. Thus, we evaluate their arguments under the outrageous government conduct standard.
Nevertheless, we note that we would reject an entrapment claim, were Appellants raising one. When the issue of entrapment is submitted to the jury, a guilty verdict "comprehends a finding of no entrapment” and “an appellate court may overturn this determination only if no rational trier of fact could have found predisposition beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.” United States v. Jones, 976 F.2d 176, 180 (4th Cir. 1992). Under the predisposition principles explained herein, a reasonable juror could have found predisposition on the part of Appellants.
. "Inducement” for purposes of entrapment means "solicitation plus some overreaching or improper conduct on the part of the government.” United States v. Hsu, 364 F.3d 192, 200 (4th Cir. 2004), As entrapment is not before us, we express no view on whether the amount of cocaine at issue qualifies as an "inducement" in the entrapment sense of the word.
. Indeed, in Count 2 the jury found Appellants guilty of conspiring to traffic "500 grams but less than 5 kilograms” of cocaine, J.A. 977-78, consistent with the plan to stage a robbery of Agent Rogers’s 5 kilogram shipment.
. In Johnson, the Supreme Court held that the definition of "violent felony” found in the residual clause of the Armed Career Criminal Act is unconstitutionally vague. 135 S.Ct. at 2557. That clause defines a "violent felony” as any felony that "involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Section 924(c) similarly contains a residual clause that defines a "crime of violence” as any felony that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18
. Because Appellant Edwards is represented by counsel, we deny his motions for leave to file pro se supplemental briefs. See United States v. Penniegraft, 641 F.3d 566, 569 n. 1 (4th Cir. 2011).
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Shane Elliott HARE, A/K/A Play, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Gregory Antoine Williams, A/K/A “J”, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Antonio Edwards, A/K/A Tank, Defendant-Appellant
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- 53 cases
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- Published