United States v. Chelsey Mayweather ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13547
__________________________
D.C. Docket No. 3:16-cr-00003-TCB-RGV-15
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHELSEY MAYWEATHER,
JEREMY FLUELLEN,
CHRISTOPHER WILLIAMS,
TRAMAINE TUCKER,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(March 17, 2021)
Before BRANCH, TJOFLAT, and ED CARNES, Circuit Judges.
BRANCH, Circuit Judge:
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Chelsey Mayweather, Jeremy Fluellen, Christopher Williams, and Tramaine
Tucker (collectively “defendants”) appeal their convictions for Hobbs Act
extortion and attempted distribution of cocaine and methamphetamine. They argue
on appeal that the trial court (1) erroneously refused to allow them to discuss
entrapment during closing arguments and to give their requested entrapment
instructions and (2) improperly gave no instructions at all on the meaning of
“official act” for the Hobbs Act extortion counts. After careful review and with the
benefit of oral argument, we conclude that Williams and Fluellen were entitled to
an entrapment defense jury instruction, the omission of which was reversible error.
Accordingly, we reverse Williams’s and Fluellen’s convictions and remand the
case for a new trial as to the two of them. On the other hand, we conclude that
Tucker and Mayweather were not entitled to an entrapment instruction, and we
affirm their respective attempted drug distribution convictions. Finally, we
conclude that it was reversible error not to provide the jury with any definition of
“official act” for purposes of the Hobbs Act extortion counts. As a result, we
reverse the Hobbs Act extortion convictions as to all four defendants and remand
for a new trial as to those counts.
I. Background
The FBI conducted a large-scale sting operation in response to a concern of
the Georgia Department of Corrections (“GDC”) that there was corruption in the
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prison system. Specifically, GDC suspected that corrections officers were
accepting bribes to smuggle contraband into prison. The FBI investigation started
in May 2014 and ultimately resulted in the indictments of approximately 130
people. During the investigation, the FBI arranged for an undercover informant,
Aakeem Woodard, to set up fake drug deals with uniformed correction officers
outside of the prison walls. 1 The FBI instructed Woodard to tell the correction
officers to wear their GDC uniforms as they transported the drugs with the
expectation that police officers would not stop the cars or detain them as a
professional courtesy. Woodard’s 18-month stint in the operation resulted in a
seventy-five count indictment against twenty-five defendants.
The four defendants in this case, all corrections officers caught in the sting
operation, were tried together on several of those counts. 2 Before trial, Williams
and Fluellen moved to have the Hobbs Act extortion charges dismissed, arguing
that wearing a GDC uniform did not constitute an “official act” as the statute
required. The district court denied that motion. Additionally, prior to trial, the
1
The FBI reasoned that this alternative was less dangerous than smuggling contraband,
real or fake, into the prison.
2
Specifically, Fluellen, Tucker, and Mayweather were charged with two counts of
attempting to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(C), and two counts of Hobbs Act extortion in violation of 18 U.S.C. § 1951(a).
Williams initially was charged with nine counts of each crime; before trial, however, the
government dismissed all Hobbs Act charges against him for conduct that occurred after he was
no longer employed as a prison official, resulting in a total of three counts of Hobbs Act
extortion.
3
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government filed a motion in limine seeking, as relevant to this appeal, to preclude
the defendants from raising an entrapment defense. After hearing argument from
the parties, the district court denied the government’s motion, noting that it was a
“close . . . question” but that it was not going to bar the defense. The government
stated that it accepted the ruling, but that it intended to renew its motion at the
close of its case.
Thereafter, the six-day trial consisted of many federal agents testifying to
various video- or audio-recorded transactions involving the defendants. Each
defendant participated in multiple car rides during which they believed they were
transporting drugs while wearing their official prison guard uniforms. These
accounts were not disputed. Instead, the defendants sought to advance an
entrapment defense, which they referenced in opening statements and cross
examinations during the government’s case-in-chief. At the close of the
government’s case, the government renewed its argument that the defense of
entrapment was not available because this Circuit does not recognize derivative
entrapment and no government agent recruited any of the defendants (instead they
were recruited by other co-defendants). In response, each defendant argued that he
or she had met the threshold burden of presenting evidence sufficient to raise a jury
issue as to whether the government’s conduct induced the defendant into engaging
in the charged conduct. The district court sustained the government’s motion in
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limine as to all four defendants concluding that this case was simply not “an
entrapment case.” Prior to closing arguments, the defendants renewed their
requests for a jury instruction on the defense of entrapment, which was denied
without further discussion. Following the jury charge, the defendants renewed
their objections to the district court’s denial of their request for an entrapment
instruction.
With regard to the Hobbs Act extortion counts, the defendants made Rule 29
motions for a judgment of acquittal,3 arguing that the act of wearing a uniform
cannot be an “official act” as a matter of law, and that the court should give the
pattern Hobbs Act extortion jury instruction promulgated by this Court following
the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355(2016).4 Tracking the definition of “official act” from the McDonnell decision, the
pattern charge expressly defined the “official act” a defendant must take, one of the
requisite components to prove the extortion element of a Hobbs Act extortion
violation. See Eleventh Circuit Pattern Jury Instructions, O70.2 (2019). The
3
“After the government closes its evidence or after the close of all the evidence, the
court on the defendant’s motion must enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29.
4
McDonnell, which dealt with a governor’s conviction for Hobbs Act extortion, held
that the definition of “official act” was more “bounded” than the government contended and did
not include simply arranging meetings or introducing people to one another. See McDonnell,
136 S. Ct. at 2368. McDonnell’s holding and the resulting pattern charge will be analyzed in
more depth later in this opinion.
5
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government responded that defendants’ “decision to wear their uniforms . . . to
exert pressure over another official, that is, another police officer who might want
to stop them and search them,” qualified as an official act and argued that the
pattern instruction did not fit the facts of this case because McDonnell involved
different officials exercising different governmental powers. As a result, the
government maintained that the pre-McDonnell Hobbs Act extortion jury charge
was the appropriate instruction. Alternatively, the government argued that the
district court could give the post-McDonnell pattern jury charge but should tailor it
to the specific facts of this case by excising the portions of the definition that were
simply not applicable. The district court denied the Rule 29 motions and declined
to use the post-McDonnell pattern charge because the official act definition it
contained “d[id] not apply to every Hobbs Act extortion case.” The district court
noted that this case was “decidedly different from McDonnell, and that [the]
pattern charge is obviously based on McDonnell . . . [and does not] fit[] the facts of
this case.” Instead, the district court gave the pre-McDonnell charge, which did
not define “official act.” Defendants objected to this charge.
After the jury retired to deliberate, the court received a note from one of the
jurors stating that “I really don’t agree with how this operation was done” and “[a]s
a juror I understand I have the right to vote ‘not guilty’ based solely on that belief.”
The district court then gave supplemental instructions to the jury, over the
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defendants’ objections, that included the following: “The manner in which the
government conducted this investigation is not an issue for your consideration
because entrapment is not a defense in this case.” Subsequently, the jury returned
a verdict finding all defendants guilty of all charges.
We consider two arguments on appeal. First, whether the district court erred
in denying the defendants the right to present an entrapment defense and have the
jury instructed on the same; second, whether the district court erred in failing to
give the post-McDonnell pattern charge or in failing to instruct the jury on the
meaning of “official act” for purposes of the Hobbs Act extortion counts in the
charge it ultimately provided. Because the factual bases for the entrapment issue
are different for each defendant, we lay out the facts elicited at trial about how each
defendant became involved in the sting operation below.
A. Jeremy Fluellen
Fluellen worked as a corrections officer at Hancock State Prison for several
years before the FBI investigation. Fluellen came to the attention of the FBI
investigators through Crystal Brooks, 5 another corrections officer, who informed
Woodard that Fluellen was someone she had worked with in the past to smuggle
5
Brooks was charged under the same indictment as the co-defendants in this case but
was not tried with them.
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contraband into the prison. 6 Brooks gave Fluellen’s number to Woodard and
encouraged Fluellen to get in contact with Woodard. Fluellen considered
contacting Woodard, but ultimately did not.
Woodard eventually called Fluellen on August 21, 2014. During the phone
call, Woodard did not mention drugs but asked if Fluellen was ready to “get to it.”
After a pause, Fluellen responded affirmatively. When Woodard asked when
Fluellen was available to help him, Fluellen replied that he was not available on a
particular day because the GDC’s tactical team, of which he was a member, was
visiting another prison. Woodard told Fluellen that he was going to “take care of
some things” for Fluellen “just for letting [Woodard] know about that.”
Woodard called Fluellen again on the next day. In this call, Woodard laid
out for the first time what he wanted from Fluellen: “The main thing is . . . I heard
you was trying to sneak cigarettes and stuff into the prison . . . that stuff’s petty.
The main thing is out here on the streets . . . I need a team out here.” 7 Fluellen
asked, “What are you saying, man?” Woodard answered that he did “transport”
and needed a team to make sure the “transport” made it to its destination.
6
Fluellen himself testified that he had not actually smuggled anything; he claimed he
only told Brooks he had smuggled things because she was encouraging him to say things that
would make him a more attractive candidate for Woodard.
7
While these phone calls were not transcribed, the audio recordings are part of the
record. At trial, Woodard testified that during this call he was arguing to Fluellen that sneaking
contraband into the jails did not make sense—it was too risky and did not pay enough.
8
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Woodard explained that if someone rode along inside the car with a uniform on,
the police were not going to pull them over. He stated that he would drive and just
needed someone to ride along with him. Woodard noted that “the money gonna be
great though.” Woodard asked Fluellen about his availability in the upcoming
weeks to “chop it up,” which was explained at trial to mean “talk,” and Fluellen
told Woodard about an upcoming court date Fluellen had for a DUI ticket.
Woodard asked if Fluellen was going to be able to “beat” the charge, and Fluellen
responded that it depended on whether he could come up with the money for the
fine. Woodard assured Fluellen that they could arrange something before the fine
was due. Woodard later reiterated that Fluellen should “not worry about them
bills” and that “we can take care of them, so long as you do the work.” Fluellen
responded “Ok.” Woodard spent the rest of the phone call reminding Fluellen how
easy the trip would be, how the police officers would not stop the car with Fluellen
in it, and how Woodard needed a team. At the end, Woodard reiterated “we gonna
take care of all your little fines and stuff, man.”
Woodard called again a few days later. He asked if Fluellen would be
available to meet on a Wednesday morning. Woodard repeatedly emphasized how
short and easy this meeting would be and stated “I just want to chop it up with you,
really. But while we doing that I gotta drop off a package.” He also renewed his
guarantees that the cops would not pull them over at least five times. Woodard
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concluded the call by saying they were mostly just going to “chop it up,” that it
would be a “short little trip,” and that Woodard just wanted to “do something” for
Fluellen. During the next few phone conversations, Woodard discussed logistics
for their meeting and teased Fluellen about the money Fluellen was making doing
“little things” like sneaking contraband into prison. All told, Woodard called
Fluellen five times and had a total of nine phone conversations with Fluellen
before the first transport.
On August 27, 2014, Fluellen arrived at the designated meeting point in his
GDC uniform and got into Woodard’s car. Woodard asked him to check the bag
already in Woodard’s car that held the fake drugs and explained that there were
three “keys,” or kilograms, of drugs. Woodard told Fluellen that they would be
doing “bigger shipments down the line,” and that if he wanted to leave, he was free
to do so. Fluellen declined to leave. Woodard then told Fluellen that he had
“something big” coming up and that he (Woodard) needed a team. Woodard again
reiterated that working with him was better than smuggling things into prison.
Fluellen then participated in the fake drug transaction.
10
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After the initial transaction on August 27, Fluellen attended a meeting
hosted by Woodard at a Cheddars restaurant on September 9, 2014. The details of
this meeting are explored in depth below.8
B. Christopher Williams
Williams worked in the same unit as Fluellen at Hancock State Prison. 9
Williams’s first contact with the FBI investigation was on September 9, 2014, at
the Cheddars meeting hosted by Woodard.10 Woodard, Brooks, Fluellen,
Williams, and two other invitees to the scheme attended the meeting. Woodard
began the meeting by making a few generous gestures: he told the corrections
officers they could “order what [they] want” and that they were not “shopping . . .
on a budget”; he ordered two “top shelf” margaritas for himself and Brooks; he
gave them gas money for driving down to the meeting; and he had conversations
with some of the officers about how he would “teach [them] the game, how to
make money and keep it.” Woodard also promised various corrections officers
8
After the Cheddars meeting, Fluellen completed an additional transaction with
Woodard on September 18, 2014.
9
In December 2015, Williams left his job at the state prison, though he continued to
participate in the drug transport scheme.
10
The record is not entirely clear as to what Williams was told before the meeting or by
whom. Woodard directed Fluellen to bring three or four other officers with him to the Cheddars’
meeting, but the record does not indicate whom he approached or what he said. Williams did say
in a post-arrest interview that Brooks “got him involved” with the drug operation, and
“introduced” him to Woodard, but did not elaborate.
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that he would “look out” for them. Woodard then gave what can only be described
as his sales pitch to join his team:
Ok, listen, before we get started eating and everything, I just want to
put this on the table. . . . I traffic, point blank. That’s what I do. I
move stuff back and forth. All I’m trying to do is put together me a
team. . . . We ain’t doing no gun play. We ain’t doing no meeting in
no dark alleys. All we’re doing is picking up, drive it, drop it off.
That’s it. I needed somebody because I realized if you’re sitting in the
car with somebody with a uniform on, if they do get pulled over,
speeding, they ain’t gonna say let me search the car. Ain’t gonna be
no ticket . . . Ain’t gonna be no shootouts, no crazy junk.
Anytime I say something, ask questions. Anything [is] cool, don’t be
like I can’t say nothing to him. Say it, man. I want everybody to be
clear what’s going on, what I’m proposing. It’s a good way to make a
whole lot of money and I ain’t talking about no two or three hundred
dollars. Every time you do something, it’s gonna mean a thousand. It
ain’t gonna be no every—every three or four days either. Maybe
once, maybe twice a week, that’s it. Maybe twice a month, that’s it.
In and out. . . . I done my time. I did twenty-five to the door. . . . So
you can ask anybody on the inside, they going inside, you know
Aakeem, they’re gonna say oh, yeah. . . . They’ll tell you I ain’t never
told you all no lie or nothing. Shot you all no bull or nothing. If I told
you I was gonna do something, I did it . . . . I always pay people up
front. I’ve never said do a job and I’ll pay you when you get through.
I ain’t gonna never—I don’t work like that. Because if my team’s
cool, I’m straight. You all can get up from this table and say I don’t
want nothing to do with that and be gone, man. Holler at you, bro.
I’m cool, man. I don’t want to see your faces again. But if you’re in,
you’re in. I ain’t talking about no Mafia in, you’re in and you can’t
get out. . . . But the people I work for, they’re serious. . . . I’m
bringing you all in up under me, so if something goes wrong, it’s my
head on the chopping block, bro. I ain’t gonna let my head be on the
chopping block. . . . I ain’t talking about moving no twenty or thirty
either. But I can get more if I have a bigger team. And can move up
the ladder . . . But I don’t plan on getting pulled over. I don’t plan on
speeding. I don’t plan on looking crazy. I don’t plan on swerving.
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Don’t plan on doing nothing. Just pick up and go back. I don’t have
no chance of getting pulled over.
Woodard then answered a few questions from one of the officers before polling
everyone to see who was interested. 11 Woodard then makes a promise:
Loyalty is the main thing. If you call me and say hey, I’m—look,
man, I got a little trouble with this and that, then you call me and
that’s it. I got a little trouble on a ticket, I need to pay this. I’ll pay it.
If you call . . . I’ll tell you to go by Western Union and I’ll send it to
you. After two runs, you should have enough money that you
shouldn’t have to ask me for that much . . . From this day forward,
you’re straight. You don’t have to put yourself in no awkward
position whatsoever . . . if you need something, just call me.
After Woodard told the group that bringing contraband into the prison was “really
petty money” next to what they could be doing, he asked for Williams’s number.
Williams gave it to him.
Williams first participated in a fake drug transport on September 18, 2014.
Over the next year, he participated in eight additional transactions. He was also
partially responsible for recruiting Tucker and Mayweather.
C. Tramaine Tucker
Tucker was a corrections officer at the Riverbend Correctional Facility, a
privately-owned prison.12 Woodard initially called Tucker one time in early to
11
Williams’s reply is not clear on the transcript or the audio.
12
Tucker lived in the same neighborhood as Williams and learned about the scheme
from him. Williams gave Woodard Tucker’s phone number and identified Tucker as a potential
team member.
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mid-April, but could not reach Tucker. Woodard called Tucker again on April 15,
2015, and they arranged a date to meet in person, but did not discuss any other
details about the proposed drug transport.
Tucker’s first fake drug transportation occurred on April 22, 2015, just a few
days after his phone call with Woodard. Tucker arrived, wearing his uniform, with
two other individuals (one of which was Williams who was also in uniform), and
Woodard showed Tucker the drugs and explained what his job was going to be.
Woodard then gave Tucker a warning regarding consequences of bungling the drug
transport:
[I]t’s gonna be on your head and my head then . . . I ain’t gonna let it
go on my head. I gotta find you. That’s just real talk . . . people I
work for, they crazy, man. But they cool . . . you show love to them,
they show love back.
Woodard explained that “I just need you to ride for protection, man. Show your
badge. If they pull us over or anything, just—I’m gonna say I’m taking you all to,
um, -- what, training or something.” Woodard then offered Tucker a chance to
back out of the deal, and Tucker stated “oh, no, you’re good.”
Tucker also completed a drug transport on May 14 of the same year. On
May 30, he spoke with Woodard on the phone about a possible female recruit, who
turned out to be Mayweather.
D. Chelsey Mayweather
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Mayweather worked as a corrections officer at Baldwin State Prison.
Williams, who was her cousin, initially told her about the scheme on May 26,
2015. On June 4, 2014, after Williams gave Woodard’s phone number to
Mayweather, she called Woodard to find out about the job. Woodard told
Mayweather specifically that they would be moving cocaine and
methamphetamine and told her to wear her uniform. Woodard also told
Mayweather how much she would be paid for her work.
On June 17, 2015, Mayweather, wearing her corrections officer uniform,
met Woodard in-person for a transport run. When she arrived for that transaction,
Woodard spoke to her alone in the car, saying “I don’t want nobody being forced”
to do the job. Mayweather replied: “I feel you,” and shortly thereafter, expressly
stated “Nobody’s forcing me.” Woodard then told her what to expect: “This is it.
It’s simple. I don’t know if he told you what’s going on. All you’re doing is
transferring these.” Woodard paid her money, and Mayweather said “we straight
for now” before riding along on the drug transport with Williams. She testified
that she was scared when she completed the ride and never looked inside the
backpack containing the fake drugs or touched it. She completed a second
transaction on July 21, 2015. On this occasion, Mayweather drove and handled the
bag herself.
II. Standard of Review
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“We conduct a de novo review of the legal correctness of a jury instruction,
but we review for abuse of discretion questions concerning the phrasing of an
instruction . . . [or] a district court’s refusal to give a requested jury instruction.”13
United States v. Van Buren, 940 F.3d 1192, 1199–1200 (11th Cir. 2019). A district
court’s refusal to deliver a jury instruction requested by a defendant “constitutes
reversible error only if the instruction ‘(1) is correct, (2) is not substantially
covered by other instructions which were delivered, and (3) deals with some point
so “vital” that the failure to give the requested instruction seriously impaired the
defendant’s ability to defend.’” United States v. Ruiz, 59 F.3d 1151, 1154 (11th
Cir. 1995) (quoting United States v. Opdahl, 930 F.2d 1530, 1533 (11th Cir.
1991)). “An erroneous jury charge only entitles the defendant to reversal of his
conviction and remand for a new trial on the count in question when a reasonable
likelihood exists that ‘the jury applied the instruction in an improper manner.’”
United States v. Chirinos, 112 F.3d 1089, 1096 (11th Cir. 1997) (quoting United
States v. Chandler, 996 F.2d 1073, 1085 (11th Cir. 1993)).
13
Despite the “the inconsistency in our precedents” regarding the standard of review for
failure to give an entrapment instruction, we have clarified that the proper standard is de novo.
United States v. Dixon, 901 F.3d 1322, 1346–47 (11th Cir. 2018), cert. denied sub nom. Portela
v. United States, 139 S. Ct. 854 (2019), and cert. denied sub nom. Chacon v. United States, 139
S. Ct. 1392 (2019). “Whether a defendant is entitled to an entrapment instruction depends on
whether there is sufficient evidence from which a reasonable jury could find entrapment, and the
sufficiency of the evidence is a legal question that we review de novo.” Id. at 1347 (internal
citations omitted).
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A jury instruction “must . . . enable the jury to apply the law to the facts.”
United States v. Silverman, 745 F.2d 1386, 1395–96 (11th Cir. 1984); see United
States v. Isnadin, 742 F.3d 1278, 1296 (“[T]he charge as a whole [must] accurately
reflect[] the law in the context of a case’s facts.”). Thus, a district court “has wide
latitude in determining the exact formulation of the jury instruction,” United States
v. Gaines, 690 F.2d 849, 856 (11th Cir. 1982), and may “refuse a requested
instruction that is incomplete, erroneous, or misleading,” Silverman, 745 F.2d at
1396; see United States v. Rodriguez-Suarez, 856 F.2d 135, 140 (11th Cir. 1988)
(“[T]he judge may refuse confusing or cumulative instructions.”).
III. Discussion
On appeal, the defendants argue that their convictions should be reversed
because: (a) they were entitled to receive an entrapment instruction and argue
entrapment to the jury as to all charges, and (b) the district court should have
instructed the jury with the pattern jury instruction or provided a definition of
“official act” for the Hobbs Act extortion charges. We deal with each argument in
turn.
A. Entrapment Defense and Jury Instructions
“Entrapment is the government’s inducement of the commission of a crime
by one not predisposed to commit it.” United States v. Humphrey, 670 F.2d 153,
155 (11th Cir. 1982). “The conduct with which the defense of entrapment is
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concerned is the manufacturing of crime by law enforcement officials and their
agents.” Goss v. United States, 376 F.2d 812, 813 (5th Cir. 1967). In other words,
[e]ntrapment occurs only when criminal conduct is the product of the
creative activity of government officials. The criminal design must
originate with a government official or one acting at his direction in
implanting in an innocent person’s mind the disposition to commit the
crime. The defense of entrapment rests on the theory that a defendant
is not culpable where government officials instigated his conduct.
There is no entrapment, however, if the accused is ready and willing
to commit the crime whenever the opportunity might be afforded—
even if by government agents or informers acting under their
supervision.
United States v. Groessel, 440 F.2d 602, 605 (5th Cir. 1971) (internal citations and
footnote omitted). Thus, entrapment is an affirmative defense that consists of “two
related elements: government inducement of the crime, and a lack of predisposition
on the part of the defendant to engage in the criminal conduct.” Mathews v. United
States, 485 U.S. 58, 63 (1988); see also Isnadin, 742 F.3d at 1297.
The two components of entrapment are evaluated in two distinct stages by
two different decision-makers. First, the trial court must determine if the
defendant has met his initial burden of producing sufficient evidence of
government inducement. See United States v. Sistrunk, 622 F.3d 1328, 1332–33
(11th Cir. 2010) (explaining that “in laying an evidentiary foundation for
entrapment, the defendant bears the initial burden of production as to government
inducement,” and “the sufficiency of the defendant’s evidence of government
inducement is a legal issue to be decided by the trial court.” (alteration adopted)
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(quotations omitted)). If the defendant meets this initial burden, “[he] is entitled to
have his defensive theory of the case put before the jury with appropriate
instructions from the trial judge.” United States v. Ryan, 289 F.3d 1339, 1344
(11th Cir. 2002) (quoting United States v. Timberlake, 559 F.2d 1375, 1379 (5th
Cir. 1977)). Once before the jury, the burden shifts to the government to prove the
defendant’s predisposition to commit the crime beyond a reasonable doubt. United
States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). Keeping these two steps
separated is important, because ultimately, “[t]he question of entrapment is
generally one for the jury, rather than for the court.” Mathews, 485 U.S. at 63; see
also Humphrey, 670 F.2d at 155 (“If there is any evidence in the record that, if
believed by the jury, would show that the government’s conduct created a
substantial risk that the offense would be committed by a person other than one
ready to commit it, then, as in all other cases, involving questions of guilt or
innocence, the jury must be permitted to resolve the matter.” (quoting Pierce v.
United States, 414 F.2d 162, 168 (5th Cir. 1969))). Because a “defendant in a
criminal case is entitled to have presented instructions relating to a theory of
defense for which there is any foundation in the evidence,” Ryan, 289 F.3d at 1344(quotation omitted), the “failure to give an instruction when the defendant has met
his burden is reversible error,” United States v. Bagnell, 679 F.2d 826, 835 (11th
Cir. 1982).
19
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Thus, to determine whether a defendant has produced enough evidence to
merit an entrapment defense and a jury instruction, we look only at whether there
was sufficient evidence produced to raise the issue of government inducement.
And “[i]n determining whether [a defendant] met his initial burden of production,
we must accept the testimony most favorable to him.” Humphrey, 670 F.2d at 156.
Importantly, the initial burden of production to show inducement is not onerous.
See United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (“This burden 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.”).
Rather, the defendant must merely come forward “with some evidence, more than
a scintilla, that government agents induced him to commit the offense.”
Timberlake, 559 F.2d at 1379; see also Brown, 43 F.3d at 623 (“A defendant may
show government inducement by producing any evidence sufficient to raise a jury
issue ‘that the government’s conduct created a substantial risk that the offense
would be committed by a person other than one ready to commit it.’” (quoting
United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985))).
Nevertheless, a defendant cannot show inducement merely by showing that
the government provided an “attractive” opportunity to commit a crime. Sistrunk,
622 at 1334; Brown, 43 F.3d at 623 (“[E]vidence of the government’s mere
suggestion of a crime or initiation of contact is not enough.”). Inducement
20
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involves more than a government-created criminal opportunity; it “requires an
element of persuasion or mild coercion. . . . [I]nducement consists of opportunity
plus something like excessive pressure or manipulation of a non-criminal motive.”
Brown, 43 F.3d at 623; accord Sistrunk, 622 F.3d at 1333. We have given some
examples of inducement:
Evidence of “persuasion or mild coercion” may be shown by evidence
that the defendant “had not favorably received the government plan,
and the government had to ‘push it’ on him, or that several attempts at
setting up an illicit deal had failed and on at least one occasion he had
directly refused to participate.”
Sistrunk, 622 F.3d at 1333 (quoting Ryan, 289 F.3d at 1344).14 In other words, an
opportunity plus some added government behavior that aims to pressure,
manipulate, or coerce the defendant into criminal activity is government
inducement.15
14
These examples are only examples, not an exhaustive list of ways a defendant can
show inducement. See Orisnord, 483 F.3d at 1178 (inducement may be shown by “any
evidence” that raises a “jury issue that the government’s conduct created a substantial risk that
the offense would be committed by a person other than one ready to commit it.”).
15
The district court seems to have used an erroneous heightened standard to evaluate the
burden of production on the defendants to show government inducement. For instance, when
ruling as to whether some of the defendants had met their burdens of production, the district
court remarked: “I would think that the type of evidence required to satisfy that criterion would
be something along the lines of it shocks the conscience,” and “I have just the impression from
reading the cases that you are going to have to be—have some extremely compelling evidence to
survive the entrapment defense limitations circumscribed by the Eleventh Circuit.” While the
question of whether a defendant was entrapped as a matter of law requires “patently clear” or
“obvious” evidence, as we emphasize throughout this opinion, the burden of production
necessary to present an entrapment defense theory to the jury is light. See, e.g., Groessel, 440
F.2d at 606 (distinguishing between sufficient evidence for a jury instruction on entrapment and
evidence establishing entrapment as a matter of law, which must be “patently clear” or “obvious”
that the defendant was entrapped).
21
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With this burden of production in mind, we evaluate whether the defendants
met their respective burdens of production as to government inducement.
1. Fluellen Met the Burden of Production as to Inducement
Woodard initiated contact with Fluellen after Fluellen had an opportunity to
call Woodard but did not. Woodard began his interactions with Fluellen by
making an unsolicited offer to “take care of some things” for Fluellen simply
because Fluellen informed him that he was unavailable to meet on a given day
because the GDC’s tactical team would be visiting another prison. Woodard told
Fluellen that what Fluellen was already doing—sneaking contraband into the
prison—was petty compared to what he could do on Woodard’s team. Woodard
also specifically referenced the financial trouble that Fluellen was in—his DUI
ticket—and promised multiple times to help cover those fines as well as other
personal debts. Woodard spent a large portion of his conversations with Fluellen
minimizing the risk of being caught by framing it as just a short ride to talk with
almost no chance of being pulled over by a police officer. 16 And, finally, we note
the number of conversations Woodard had with Fluellen (nine), which, coupled
16
We reiterate that merely offering an opportunity to commit a crime is not inducement.
See Brown, 43 F.3d at 623. But here, Woodard cites the ease of his proposed transaction several
times in response to Fluellen’s hesitation. It is not the ease of the crime that constitutes
inducement, but Woodard’s relentless pursuit of Fluellen’s participation and manipulation of his
hesitation. Woodard’s actions are sufficient to raise the question of whether he pressured
Fluellen to participate, which is sufficient to meet his burden of production as to government
inducement. See id.22
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with Fluellen’s hesitation during the first few calls, points towards inducement.
Thus, Woodard’s pressure tactics raise a question as to whether there was a
substantial risk that those efforts may have convinced Fluellen to do something
that he may not have intended to do beforehand. Accordingly, Fluellen met his
light burden of production as to government inducement and he should have had
the ability to present his entrapment defense to the jury and receive an instruction
on this defense. See Orisnord, 483 F.3d at 1178 (inducement may be shown by
“any evidence” that raises a “jury issue that the government’s conduct created a
substantial risk that the offense would be committed by a person other than one
ready to commit it”); see also Brown, 43 F.3d at 623; Bagnell, 679 at 835.
2. Williams Met the Burden of Production as to Inducement
Williams was not on the FBI’s radar until he arrived at the meeting with
Woodard, an undercover informant and the government’s agent,17 at Cheddars.
Woodard began the meeting by making a few generous offers at lunch—he gave
the defendants money for gas and assured them they could order any food or drink
they wanted on his dime—which in and of itself would not be sufficient to raise a
question of inducement. Woodard, however, clearly moved into efforts to pressure
Williams into the crime and “push it” on him. He stated: “I’m gonna look out for
17
The government does not contest that Woodard, who was in the employ of the FBI,
was a government agent.
23
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you,” “[f]rom this day forward, you’re straight,” and “If you call me and say hey,
I’m—look, man, I got a little trouble with this and that, then you call me and that’s
it. [You] got a little trouble on a ticket . . . I’ll pay it,” for example. This language
meets Williams’s light burden of presenting “any evidence” to raise the issue of
government inducement. Specifically, Woodard’s promises to help Williams when
he is in trouble or to take care of any of financial concerns presents the possibility
that he “manipulated” Williams by appealing to “non-criminal motives.” Sistrunk,
622 F.3d at 1333.
Further, Woodard tried to convince Williams that the task would not be
dangerous—“no gun play… no meeting in dark alleys.” According to Woodard,
the job was just “picking up, drive it, drop it off. That’s it.” Merely describing a
criminal job, of course, is not inducement—but offering a job, explaining how easy
the job is, and attempting to persuade the listeners that a federal crime is the same
as simply riding along in a car is not “merely providing an opportunity.” And
Woodard’s persuasion did not stop with the description of the crime—Woodard
attempted to persuade Williams by comparing his proposal to what the defendants
were supposedly being investigated for—sneaking contraband into prison—to
show Williams that his proposed crime was more lucrative and easier. Woodard’s
pressure tactics raise a question as to whether there was a substantial risk that those
efforts may have convinced Williams to do something that he may not have
24
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intended to do beforehand. Accordingly, Williams met his light burden of showing
government inducement. See Orisnord, 483 F.3d at 1178. Therefore, Williams
should have had the ability to present his entrapment defense to the jury and
receive an instruction on this defense.18 Brown, 43 F.3d at 623; Bagnell, 679 at
835.
3. Tucker Did Not Meet the Burden of Production as to Inducement
Tucker showed up in his uniform ready for the transport. Woodard showed
him the drugs and explained how the job worked. Although Woodard delivered a
warning during the first drug transport that might be construed as threatening
Tucker, he also gave Tucker the opportunity to back out, and Tucker declined to do
so. There is no evidence that Woodard put any pressure on Tucker to participate or
manipulated him by appealing to non-criminal motives. In other words, there was
simply no “plus” that the government presented to Tucker beyond the
“opportunity” to commit a crime. Accordingly, Tucker did not meet his burden of
production to merit an entrapment instruction.
18
The government argues that the entrapment instruction, on remand, would only apply
to the first drug deal each defendant participated in. However, this argument runs counter to our
binding precedent in Wells, which, like here, dealt with a series of drug transactions at the
bequest of the government, and affirmed a jury instruction that the jury should consider
entrapment as to each count separately. United States v. Wells, 506 F.2d 924, 926 (5th Cir.
1975). We recently reaffirmed this principle in Isnadin, where we noted that a defendant can
show that a “course of conduct” was induced by government action. Isnadin, 742 F.3d at 1302
(noting that “whether the charges against [the defendants] 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”).
25
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4. Mayweather Did Not Meet the Burden of Production as to Inducement
Mayweather initiated contact with Woodard after she received his phone
number from another participant in the scheme. Woodard told her during this call
that they would be “mov[ing]” drugs. As with Tucker, there is no evidence that
Woodard pressured Mayweather or manipulated her by appealing to non-criminal
motives. And when Mayweather subsequently showed up for the transport,
Woodard confirmed with her that she was not being “forced” to participate. In
other words, there was simply no “plus” that the government presented to
Mayweather beyond the “opportunity” to commit a crime. See Groessel, 440 F.2d
at 605 (“There is no entrapment, however, if the accused is ready and willing to
commit the crime whenever the opportunity might be afforded—even if by
government agents or informers acting under their supervision.”). Rather, the
evidence regarding Mayweather’s contact with Woodard closely parallels the
defendant in Sistrunk:
[T]he[] facts present nothing more than evidence that the government
presented the opportunity for Sistrunk to commit the crime. While the
opportunity presented may have been attractive to Sistrunk and his co-
defendants, that is not sufficient to show inducement. The record
reveals no evidence of any actions or statements that would rise to the
necessary level of excessive pressure or manipulation.
Sistrunk, 622 F.3d at 1333–34 (citing United States v. West, 898 F.2d 1493, 1502
(11th Cir. 1990)). Therefore, Mayweather failed to meet her burden of production
and was not entitled to an entrapment instruction.
26
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5. The Government’s Arguments That the Defendants Were Ineligible for
Entrapment Defenses Are Unavailing
On the other hand, the government contends that these defendants, having
been recruited by other co-defendants rather than a government agent, at most can
claim “derivative entrapment,” which our circuit does not recognize. See Isnadin,
742 F.3d at 1308. Alternatively, the government argues that, even if the
defendants were entitled to pursue an entrapment defense, any error in the failure
to so instruct the jury was harmless because the defendants were not entrapped as a
matter of law. We address each argument in turn.
First, in support of its derivative entrapment argument, the government
primarily relies on Isnadin, where a government agent met with two defendants to
arrange an armed robbery of a drug stash house. See id. at 1286–87. The agent
allowed the defendants to bring other individuals to help with the job. See id. at
1288. When the defendants met the agent at the sting operation, Isnadin was one
of the additional individuals the defendants brought with them for the job. See id.
at 1291–92. Isnadin was arrested along with the primary defendants and charged
similarly. See id. at 1284–85. We rejected Isnadin’s assertion that he was
entrapped because “[t]he 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.’” Id. at 1308 (quoting United States v.
Mers, 701 F.2d 1321, 1340 (11th Cir. 1983)). Because Isnadin had been brought to
27
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the sting by the defendants and not the government, and because the government
had no knowledge of, or contact with, Isnadin before he arrived at the sting
operation, we held that Isnadin could not pursue an entrapment defense. Id. at
1308–09.
Unlike Isnadin, however, this case does not involve derivative entrapment.19
In Isnadin, the government had no contact with and did not present the criminal
opportunity to the defendant because it was not aware of his involvement until he
showed up on the day of the crime. Id. at 1291, 1308. But in the case at hand,
although the defendants may have been initially introduced to the government
agent through other co-defendants, the government agent was aware of the
participation of each defendant, had direct contact and communication with all of
the defendants, presented the criminal opportunity to them directly, and was
directly involved with each defendants’ fake drug transports. Isnadin is thus
distinguishable.
Second, the government argues that the evidence conclusively demonstrates
that the defendants were not entrapped, and, therefore, any error in failing to give
the entrapment instruction was harmless. But the government’s position conflates
19
We also distinguish this case from others the government cited, like Chirinos, where
we found “no evidence” that the government agent induced the defendants. 112 F.3d at 1102.
Here, there is evidence of government inducement for some of the defendants, as discussed
above.
28
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the preliminary question of whether there was a sufficient evidentiary foundation
for an entrapment defense such that the defendants had a right to have the jury
instructed on that theory of defense, which is before us, with the ultimate legal
question of whether the defendants were entrapped, which is not before us. 20
Where the answer to the preliminary question is yes, “the defendant is entitled to
have his defensive theory of the case put before the jury with appropriate
instructions from the trial judge,” Ryan, 289 F.3d at 1344, and the ultimate
question of whether the evidence demonstrates that the defendants were entrapped
is for the jury, Mathews, 485 U.S. at 63. See also Ruiz, 59 F.3d at 1154 (“A
criminal defendant has the right to have the jury instructed on [his] theory of
defense, separate and apart from instructions given on the elements of the charged
offense. A trial court may not refuse to charge the jury on a specific defense
theory where the proposed instruction presents a valid defense and where there has
been some evidence adduced at trial relevant to that defense.” (internal citations
omitted)). Indeed, where there is any foundation to support an entrapment defense,
the jury should be given an opportunity to consider the defense “even though the
20
For example, the government argues that all defendants were given a chance to back
out of the deal and thus cannot have been induced. But “[e]vidence that a defendant was
afforded an opportunity to back out of a transaction and did not avail himself of that opportunity
also constitutes evidence of predisposition,” not inducement. United States v. Ventura, 936 F.2d
1228, 1231 (11th Cir. 1991). So too with the argument that the defendants “eagerly agreed” to
participate, and thus these arguments are jury issues. See United States v. Andrews, 765 F.2d
1491, 1499 (11th Cir. 1985) (“Evidence of predisposition may also include the readiness or
eagerness of the defendant to deal in the proposed transaction.”).
29
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evidence may be weak, insufficient, inconsistent or of doubtful credibility.”
Timberlake, 559 F.2d at 1379 (quoting United States v. Young, 464 F.2d 160, 164
(5th Cir. 1972)).
Here, as discussed above, Fluellen and Williams met this threshold light
burden and should have been given, but were denied, the opportunity to present the
theory of entrapment as a defense. This error was reversible error, not harmless
error, because a defendant has the right to have the jury instructed on the defense
of entrapment where an evidentiary foundation exists, the defense of entrapment
was not covered by other jury instructions, and the absence of the entrapment
instruction seriously impaired their ability to present their defense. See Ruiz, 59
F.3d at 1154; Bagnell, 679 at 835 (holding that a failure to give an entrapment
instruction where defendant met his burden of production was reversible error);
United States v. Garcia, 546 F.2d 613, 615 (5th Cir. 1977) (“Even if the evidence
is unsubstantial that entrapment has occurred, and even if it is the defendant’s
testimony alone which raises the issue, any evidence that ‘the Government’s
deception actually implant(ed) the criminal design in the mind of the defendant,’
requires a charge to the jury on the defense of entrapment.” (emphasis added and
internal citations omitted) (quoting United States v. Russell, 411 U.S. 423, 436
(1973))).
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Accordingly, we reverse the district court on the entrapment issue as to
Fluellen and Williams.
B. The McDonnell Instruction
The second issue raised by the defendants concerns the jury instructions
given on the counts for Hobbs Act extortion, codified at 18 U.S.C. § 1951. That
section, in relevant part, reads as follows:
(a) 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.
...
(2) The term “extortion” means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.
18 U.S.C. § 1951. The Supreme Court has explained that the “under color of
official right” language in the statute gives rise to a requirement that the defendants
perform an “official act.” See, e.g., Evans v. United States, 504 U.S. 255, 268
(1992) (holding that the government was required to prove a quid pro quo
existed—meaning an official accepted something of value in exchange for
agreeing to take or taking official acts to qualify as Hobbs Act extortion). Thus,
the government must prove that the defendants took or agreed to take an “official
act” to meet their burden of proving Hobbs Act extortion convictions. See id.31
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In this case, the defendants requested that the district court instruct the jury
as to the meaning of “official act” by using the pattern jury instructions
promulgated by this Court.21 These instructions, in their current form (with the
most recent revisions italicized), contain the following discussion of “official act”:
“Extortion under color of official right” is the wrongful taking or
receipt of money or property by a public officer who knows that the
money or property was taken or received in return for [doing] [not
doing] an official act. It does not matter whether or not the public
officer employed force, threats, or fear. To qualify as an official act,
the public official must have [made a decision or taken an action]
[agreed to make a decision or take an action] on a question, matter,
cause, suit, proceeding, or controversy.
Further, the question, matter, cause, suit, proceeding, or controversy
must involve the formal exercise of governmental power. It must be
similar in nature to a lawsuit before a court, a determination before
an agency, or a hearing before a committee. It must also be
something specific which requires particular attention by a public
official.
The public official’s [decision or action] [agreement to make a
decision or take an action] on that question, matter, cause, suit,
proceeding, or controversy may include using [his/her] official
position to exert pressure on another official to perform an official
act, or to advise another official, knowing or intending that such
advice will form the basis for an official act by another official. But
setting up a meeting, talking to another official, or organizing an
event (or agreeing to do so)—without more—is not an official act.
[It is not necessary that the public official actually make a decision or
take an action. It is enough that [he/she] agrees to do so. The
21
For many years, our pattern jury instructions did not contain a definition of “official
act.” Then, in December of 2016, a revision to these instructions was promulgated by this Court
to reflect the Supreme Court’s ruling in McDonnell, 136 S. Ct. at 2365. See Eleventh Circuit
Pattern Jury Instructions December 2016 Revisions, O70.2 (Color of Official Right).
32
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agreement need not be explicit, and the public official need not
specify the means [he/she] will use to perform [his/her] end of the
bargain. Nor must the public official in fact intend to perform the
official act, so long as [he/she] agrees to do so.]
Eleventh Circuit Pattern Jury Instructions, O70.2 (2019) (emphasis added). The
district court, however, declined to give the pattern instruction and provided no
definition as to the meaning of “official act” as applied to this case. The
defendants argue that the district court erred by refusing to give the pattern
instruction and by providing no definition of “official act” in the instruction that it
ultimately provided.
1. The District Court Did Not Abuse Its Discretion by Refusing to Give
the Post-McDonnell Pattern Jury Instruction
The defendants requested that the district court instruct the jury with the
post-McDonnell pattern instruction. The district court rejected this request because
it found that the post-McDonnell pattern instruction did not “fit[] the facts of this
case.” “We . . . review for abuse of discretion a district court’s refusal to give a
requested jury instruction.” Van Buren, 940 F.3d at 1200. In particular, a district
court may refuse to give a confusing jury instruction, Rodriguez-Suarez, 856 F.2d
at 140; see Silverman, 745 F.2d at 1396, and “the charge as a whole [must]
accurately reflect[] the law in the context of a case’s facts,” Isnadin, 742 F.3d at
1296.
33
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In McDonnell, the Supreme Court addressed the necessity of a jury
instruction on the meaning of official act for purposes of the Hobbs Act extortion
statute. See 136 S. Ct. at 2365, 2367–68. McDonnell concerned the former
Governor of Virginia’s convictions for Hobbs Act extortion under color of official
right and honest services fraud arising from his conduct in agreeing to arrange
meetings with state officials and encouraging the state’s research universities to
conduct certain studies in exchange for loans and gifts. See id. at 2361. The
parties in McDonnell agreed to use the federal bribery statute, 18 U.S.C.
§ 201(a)(3), to define what constituted an “official act” related to the charges
against the governor under the Hobbs Act extortion statute. 136 S. Ct. at 2365.
That statute defines “official act” as “any decision or action on any question,
matter, cause, suit, proceeding, or controversy, which may at any time be pending,
or which may by law be brought before any public official, in such official’s
official capacity, or in such official’s place of trust or profit.” Id. (quoting 18
U.S.C. § 201(a)(3)). Based on the text of § 201, the Supreme Court concluded that
there were two requirements for an act to constitute an “official act”:
First, the Government must identify a “question, matter, cause, suit,
proceeding or controversy” that “may at any time be pending” or
“may by law be brought” before a public official. Second, the
Government must prove that the public official made a decision or
took an action “on” that question, matter, cause, suit, proceeding, or
controversy, or agreed to do so.
34
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Id. at 2368. Under this rubric, the Supreme Court held that the “question” or
“matter” must be a “formal exercise of governmental power, such as a lawsuit,
hearing, or administrative determination.” Id. at 2368–69. The Supreme Court
also held that the matter must be “pending,” which meant it had to be “the kind of
thing that can be put on an agenda, tracked for progress, and then checked off as
complete,” and should also be something “within the specific duties of an official’s
position—the function conferred by the authority of his office.” Id. at 2369.
Following McDonnell, this Circuit incorporated the “official act” definition
from McDonnell into its pattern jury instructions for Hobbs Act extortion. It was
the McDonnell definition of “official act” that the defendants sought to use at trial
in this case. But, as the government pointed out at trial, the post-McDonnell
pattern instruction also requires the act to involve a formal exercise of
governmental power “similar in nature to a lawsuit before a court, a determination
before an agency, or a hearing before a committee.” The government argued that
this portion of the instruction would be misleading here because a jury could be
confused by the references to lawsuits and hearings—formal exercises of
governmental power that are not at issue here.
We agree. The post-McDonnell pattern instruction states that the “question,
matter, cause, suit, proceeding, or controversy . . . must be similar in nature to a
lawsuit before a court, a determination before an agency, or a hearing before a
35
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committee.” See Eleventh Circuit Pattern Jury Instructions, O70.2 (2019). Unlike
McDonnell, which involved a governor, this case involves corrections officers who
possess different governmental powers. Accordingly, the post-McDonnell pattern
instruction could be misleading upon the facts of this case because formal
exercises of governmental power similar to—but other than—“a lawsuit before a
court, a determination before an agency, or a hearing before a committee,” can
qualify as a “question, matter, cause, suit, proceeding, or controversy,” and the
district court did not abuse its discretion by failing to give the pattern instruction.
2. The District Court Was Required to Define “Official Act”
The district court did not define “official act” in the charge it provided the
jury and the defendants argue that its failure to do so was error. Although the
district court did not abuse its discretion by finding that the post-McDonnell
pattern instruction of “official act” does not fit the facts of this case, it was still
required to define “official act” because of the constitutional concerns underlying
the McDonnell decision. The Supreme Court explained those concerns as follows:
In addition to being inconsistent with both text and precedent, the
Government’s expansive interpretation of “official act” would raise
significant constitutional concerns. Section 201 prohibits quid pro
quo corruption—the exchange of a thing of value for an “official act.”
In the Government’s view, nearly anything a public official accepts—
from a campaign contribution to lunch—counts as a quid; and nearly
anything a public official does—from arranging a meeting to inviting
a guest to an event—counts as a quo.
36
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But conscientious public officials arrange meetings for constituents,
contact other officials on their behalf, and include them in events all
the time. The basic compact underlying representative government
assumes that public officials will hear from their constituents and act
appropriately on their concerns—whether it is the union official
worried about a plant closing or the homeowners who wonder why it
took five days to restore power to their neighborhood after a storm.
The Government’s position could cast a pall of potential prosecution
over these relationships if the union had given a campaign
contribution in the past or the homeowners invited the official to join
them on their annual outing to the ballgame. Officials might wonder
whether they could respond to even the most commonplace requests
for assistance, and citizens with legitimate concerns might shrink from
participating in democratic discourse.
McDonnell, 136 S. Ct. at 2372. The Supreme Court also noted that “under the
Government’s interpretation, the term ‘official act’ is not defined ‘with sufficient
definiteness that ordinary people can understand what conduct is prohibited,’ or ‘in
a manner that does not encourage arbitrary and discriminatory enforcement.’” Id.
at 2373 (quoting Skilling v. United States, 561 U.S. 358, 402–403 (2010)). Finally,
the Supreme Court acknowledged that “[t]he Government’s position also raises
significant federalism concerns. A State defines itself as a sovereign through ‘the
structure of its government, and the character of those who exercise government
authority.’ That includes the prerogative to regulate the permissible scope of
interactions between state officials and their constituents.” Id. (quoting Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991)).
All of the Supreme Court’s concerns about the government’s expansive
definition of “official act”—lawful interactions between state officials and
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constituents, vagueness, and federalism—are equally applicable to this case and
establish the importance of giving guidance to the jury by defining the alleged
“official act” at issue in each Hobbs Act extortion case. The concerns highlighted
in McDonnell are only heightened when, as here, no definition at all for “official
act” is given. Cf. Van Buren, 940 F.3d at 1203 (reversing convictions of police
officer where district court refused to give entire pattern jury instructions about
“official acts” because of concerns that lack of pattern instruction examples could
cause jury confusion). Accordingly, the district court’s failure to instruct the jury
on “official act” in this Hobbs Act extortion case was error.
Having determined that the jury charge as given was erroneous, we now
consider whether it requires a reversal. “An erroneous jury charge only entitles the
defendant to reversal of his conviction and remand for a new trial on the count in
question when a reasonable likelihood exists that the jury applied the instruction in
an improper manner.” Chirinos, 112 F.3d at 1096. Here, we find that a reasonable
likelihood exists that the jury applied the instruction in an improper manner. The
government argued to the jury in closing that “[t]he uniform when donned is the
official act which the Defendants used as a quid pro quo . . . .” It is true that
corrections officers are officers of the state of Georgia. See O.C.G.A. § 42-5-31.
However, a corrections officer’s powers, such as his arrest power, are limited to
the bounds of the prison facilities except when transporting inmates or when
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specifically requested to aid law enforcement officers. See O.C.G.A. §§ 42-5-34,
42-5-35. Therefore, simply wearing a GDC uniform outside the bounds where the
GDC employee has lawful authority to act is not an official act. See McDonnell,
136 S. Ct. at 2371–72 (defining official act as a “formal exercise of governmental
power”). The government, however, has argued that, according to McDonnell,
intending to exert pressure on another official performing an official act could
possibly qualify as an official act. See id. at 2372. It is possible, then, that these
corrections officers were committing an official act if they were wearing the
uniforms in an attempt to influence the actions of police officers they encountered
during transports. But whether the corrections officers were attempting to
influence police officers is a factual question that requires a jury, properly
instructed as to the meaning of “official act” and with the benefit of arguments
from all parties, to answer. 22 See Van Buren, 940 F.3d at 1205 (remanding case for
a properly instructed jury to decide if police officer committed official act as
required for bribery charge). Accordingly, because the district court’s failure to
22
The government argues that the indictment defined the official acts in question and the
jury instructions referred to the indictment, such that any error in failing to define the meaning of
“official act” specifically in the jury instructions was harmless. We are unpersuaded. While the
indictment specified that the defendants agreed to wear their uniforms on the transports and
believed their uniformed presence would assist with the successful transportation of narcotics
and prevent “law enforcement interdiction,” the indictment never specifically defined “official
act.” Indeed, the phrase “official act” does not appear at all in the indictment. Thus, the
indictment did not help give the jury any guidance as to what the meaning of official act was in
this case for purposes of the Hobbs Act extortion charges. Accordingly, the error was not
harmless.
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define “official act” in its jury instruction was a misstatement of the law that
deprived the defendants of a fair trial, we reverse all four defendants’ Hobbs Act
extortion convictions on this issue and remand for a new trial.
On remand, the district court will have broad discretion in fashioning a jury
instruction that fits the facts of this case. See United States v. Prather, 205 F.3d
1265, 1270 (11th Cir. 2000). To aid the district court in doing so, we note that the
post-McDonnell pattern instruction is a correct statement of law but that the
portion of the instruction that could be confusing as applied to this case is the
phrasing of the requirement that the “question, matter, cause, suit, proceeding, or
controversy” at issue “must be similar in nature to a lawsuit before a court, a
determination before an agency, or a hearing before a committee.” We also note
that a police officer’s determination whether to search a suspect involves “a formal
action of the same gravity as a lawsuit, hearing, or administrative determination.”23
See Van Buren, 940 F.3d at 1204.
IV. Conclusion
Because Williams and Fluellen were entitled to a jury instruction on the
defense of entrapment, which was omitted below, we reverse their convictions and
remand for a new trial as to the two of them. Further, we reverse all of the
23
We leave the question of whether defendants performed an official act to the fact-
finder on remand.
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defendants’ Hobbs Act extortion convictions and remand for a new trial because
they were denied a fair trial when the jury was not instructed on the meaning of
“official act” for those counts. We affirm, however, Mayweather’s and Tucker’s
respective drug-related convictions because they were not entitled to an entrapment
instruction and the validity of their drug-related convictions is not affected by our
holding as to the Hobbs Act extortion counts.
AFFIRMED in part; REVERSED in part; REMANDED.
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