United States v. John Smith ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1119
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:11-cr-00053-PPS-APR-1 — Philip P. Simon, Chief Judge.
____________________
ARGUED JANUARY 20, 2015 — DECIDED JULY 7, 2015
____________________
Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY,
District Judge. *
RIPPLE, Circuit Judge. John Smith was arrested after a sting
operation in which the Government had organized two
fictional drug transactions. Based on his participation in that
* The Honorable Matthew F. Kennelly of the United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 14-1119
operation, a jury convicted Mr. Smith of both conspiring and
attempting to possess with intent to distribute more than
five kilograms of cocaine, transferring firearms with
knowledge that they would be used in a drug trafficking
crime, and possessing a firearm in furtherance of a drug
trafficking crime. Mr. Smith appeals his conviction, arguing
that the Government’s conduct violated his right to due
process of law by coercing him to engage in illegal activity.
After careful study of the governing case law and of the
record, we conclude that no such coercion took place. The
district court, therefore, did not plainly err by failing to
dismiss Mr. Smith’s indictment. We therefore affirm the
judgment of the district court.
I
BACKGROUND
1.
Prior to his arrest, Mr. Smith was a part-time police
officer and the owner of security and towing businesses. In
2009, Detective Shani Anderson began investigating
Mr. Smith for employment tax crimes and other offenses. 1
She eventually enlisted Jon Roberson, one of Mr. Smith’s
employees, as an informant. Mr. Smith had become close
friends with Roberson, who previously had been a member
1 Mr. Smith submits that he was targeted by the Indianapolis Metropoli-
tan Police Department for testifying in 2008 regarding police corruption
in Marion County and Indianapolis. Detective Anderson testified that
she was not aware of that testimony until after she began her investiga-
tion.
No. 14-1119 3
of the Latin Kings street gang and had been convicted of
selling drugs and of shooting a rival drug dealer. Roberson
told Detective Anderson that Mr. Smith had committed
insurance fraud and arson and that he had extorted money
from undocumented immigrants.
In the fall of 2010, Mr. Smith told Roberson that he
needed money. According to Roberson, Mr. Smith knew that
drug dealing was taking place at the apartment complexes
where he provided security services, and he asked Roberson
to find a drug stash house that he could rob while wearing
police gear. He also asked if Roberson knew any Latin Kings
that needed security protection while transporting drugs.
Roberson relayed this information to Detective Anderson,
and she referred the case to the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”).
The ATF agent overseeing the investigation continued to
use Roberson as a confidential informant. The agent decided
to operate in an undercover capacity to determine if
Roberson accurately had reported that Mr. Smith was
willing to provide security protection for a drug
organization. Roberson introduced the agent to Mr. Smith as
“Danny,” Roberson’s longtime friend with ties to New York
drug dealers and mobsters. During their first meeting,
Danny mentioned that he might need some “security type
stuff,” to which Mr. Smith replied, “I’ll hook you up. …I’m
loyal as the day is long. Anything you and I talk about, it’s
me and you,” and, ”I’m all about making money.” 2
Mr. Smith also suggested that he could help “[c]lean” money
2 Gov’t Ex. 8c, at 2.
4 No. 14-1119
for Danny. 3 Mr. Smith described how others had asked him
to make a drug run using his police car, but he had declined
because he wanted to “make several trips” and make more
money. 4 Mr. Smith told Danny that he carried assault
weapons and that he absolutely would watch Danny’s back.
Near the end of the meeting, Mr. Smith explained that he
would use his badge to get out of trouble if they were pulled
over. Danny asked if Mr. Smith knew anyone else who could
assist them, and Mr. Smith stated that he knew another
police officer who, like him, was “all about money.” 5 Before
parting ways, Mr. Smith asked Danny to give him a call.
Five days later, Danny came to Mr. Smith’s towing
business. Danny told Mr. Smith that he did “runs” for
people from New York who “aint no joke.” 6 Mr. Smith
responded, “It’s all good,” and told Danny that he could
“transport or move or whatever…you want to do to
whatever. I don’t care. …I’ll just watch your back.”7
Mr. Smith then asked how much money he would make and
suggested that they take his car on any runs because the
police would be less suspicious if they ran his plate. He
reassured Danny that he was willing to kill. Mr. Smith also
told Danny that he was “a big gun nut” and offered to sell
3 Id. at 4.
4 Id. at 13.
5 Id. at 19.
6 Gov’t Ex. 8f, pt. 1, at 1.
7 Id.
No. 14-1119 5
him or others an unregistered assault rifle and a pump
shotgun. 8
The next week, Mr. Smith met Danny outside of a
Steak ‘n Shake restaurant. Danny expressed reluctance to
deal with Mr. Smith because of Mr. Smith’s past
participation with an FBI investigation. Mr. Smith told
Danny that he was “an open book,” that he was “in this for
the…money,” and that he was a businessman who
“provide[s] protection and that’s all.” 9 He also reassured
Danny that he did not “snitch” to the FBI. During their
discussion, Danny told Mr. Smith that he did not have to
participate in the transportation of the drugs if he was not
up to it. Danny reminded Mr. Smith that driving with a half
million dollars’ worth of drugs in his car could lead to his
being killed or jailed for life. Mr. Smith replied that he did
not have a problem with the risks associated with the
transaction because he was “just as careful as” Danny. 10
Mr. Smith then asked if he could bring along somebody he
trusted because the situation “could get serious and it could
[get] messy.” 11 Mr. Smith indicated that he would bring his
own weapons, including an assault rifle, on any runs, and
asked if he should rent a car.
A month later, Mr. Smith met Danny at an Indianapolis
gun show where he purchased three firearms for him.
8 Gov’t Ex. 8f, pt. 2, at 3.
9 Gov’t Ex. 8i, at 3.
10 Id. at 13.
11 Id.
6 No. 14-1119
Mr. Smith also introduced Danny to a police-officer
acquaintance. Mr. Smith and his acquaintance told Danny
that they wanted to “make some money.” 12 Danny told them
that he had a trip planned in about a week, and Mr. Smith
replied that he could “do Thursday or Friday.” 13 Mr. Smith
offered to drive after his acquaintance expressed concerns
about making the run in a rental car. Mr. Smith then asked if
they were “picking up or taking to” and whether Danny had
“dealt with this guy before.” 14 Danny responded that they
were going to pick up the drugs and that he had dealt with
the drug supplier for a long time.
Danny met Mr. Smith at a Denny’s restaurant four days
later. Instead of his original acquaintance, Mr. Smith now
had recruited Terry Carlyle, a police officer, to assist him in
providing security. At the meeting, Mr. Smith acknowledged
that the trip was “a protection detail.” 15 The three men
discussed logistics, and Mr. Smith stated that he would
bring two guns with him, including “an AK-47 with a
folding stock.” 16 Mr. Smith also told Danny that he had “a
bunch of handguns” and “two AK-47 pistols” that he was
willing to sell to Danny. 17 Mr. Smith stated his desire to
develop a long-term relationship in which he regularly
12 Gov’t Ex. 8l, pt. 1, at 2.
13 Id. at 6.
14 Id. at 11.
15 Gov’t Ex. 8o, pt. 1, at 1.
16 Id. at 4.
17 Id. at 6.
No. 14-1119 7
would provide protection services. Near the end of the
meeting, Danny told Mr. Smith that the upcoming run
would be between Indianapolis and Merrillville, Indiana.
Mr. Smith stated that he was “ready to get this…first one
over and done with so we can move on to bigger and better
things.” 18 Danny again told Mr. Smith that he could change
his mind, and Mr. Smith responded that he had no intention
of backing out, stating, “We’ll go to Merrillville right now.” 19
Mr. Smith accompanied Danny on two runs, during
which they picked up a total of twenty-five kilograms of
what Mr. Smith believed to be cocaine. During both trips,
Mr. Smith drove Danny’s car and carried high-powered
firearms. During the first run, Mr. Smith offered to sell
pistols to the drug dealer, a second undercover agent, so that
the dealer then could smuggle the firearms into Mexico.
During the second trip, Mr. Smith showed that same agent
photos of an AK-47 and handguns as well as a video of a
weapon with a twenty-five-round capacity. The two then
discussed prices for the weapons. One week later, Mr. Smith
met the purported drug dealer and sold him thirteen
firearms for $8,000.
2.
A grand jury indicted Mr. Smith for one count of
conspiring to possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
18 Gov’t Ex. 8o, pt. 2, at 17.
19 Id. at 18.
8 No. 14-1119
and 846; two counts of attempting to possess with intent to
distribute more than five kilograms of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846; one count of transferring
firearms knowing that they would be used in a drug
trafficking crime, in violation of 18 U.S.C. § 924(h); and three
counts of possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
Prior to trial, the district court granted the Government’s
motion to dismiss one count of possessing a firearm in
furtherance of a drug trafficking crime.
At trial, Mr. Smith argued that he was entrapped by
Roberson and the government agents. He testified that
Roberson had begged him incessantly to get involved in the
scheme as a way to help pay off Roberson’s drug debts and
to shield Roberson’s children from harm. Roberson denied
Mr. Smith’s claims. The district court instructed the jury on
the elements of an entrapment defense, explaining that the
Government must prove either that the agents “did not
persuade or otherwise induce the Defendant to commit the
offense,” or that “[t]he Defendant was predisposed to
commit the offense before he had contact with law
enforcement officers.” 20 The jury found Mr. Smith guilty of
all counts, rejecting his defense that he was entrapped. 21
20 R.145 at 207.
21 After the jury rendered its verdict, the district court granted
Mr. Smith’s motion for a judgment of acquittal for his conviction of
transferring firearms knowing that they would be used in a drug traf-
ficking crime, deciding that the Government had failed to provide suffi-
cient evidence to prove the offense as described in the indictment.
No. 14-1119 9
At sentencing, the court concluded that Mr. Smith had
obstructed justice by threatening his accomplice Carlyle
before trial and by falsely telling the jury that Roberson had
elicited his services to work off Roberson’s drug debt. The
court sentenced Mr. Smith to the mandatory minimum
sentence of 480 months’ imprisonment. 22 Mr. Smith appeals
his conviction. 23
II
DISCUSSION
Mr. Smith contends that the Government violated his
right to due process of law by soliciting him to participate in
a fictional drug transaction completely operated by
undercover agents. He relies on United States v. Russell, 411
U.S. 423 (1973), and its progeny. He acknowledges that he
did not raise this argument before the district court, and
therefore we review for plain error. See United States v.
Duncan, 896 F.2d 271, 275 (7th Cir. 1990).
The Supreme Court has left open the possibility that
there are limits to the Government’s authority to create
illegal activity in the course of an investigation. In Russell,
the Court addressed whether government conduct, standing
alone, can violate a defendant’s right to due process of law.
In that case, the defendant argued that the Government’s
“involvement in the manufacture of the methamphetamine
was so high that a criminal prosecution for the drug’s
manufacture violates the fundamental principles of due
22 The district court had jurisdiction under 18 U.S.C. § 3231.
23 Our jurisdiction is secure under 28 U.S.C. § 1291.
10 No. 14-1119
process.” Russell, 411 U.S. at 430. The Supreme Court
rejected that contention, holding that, under the facts of the
case, the Government’s conduct was not objectionable. See id.at 431–32. The Court noted that it “may some day be
presented with 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,” but
concluded that “the instant case [was] distinctly not of that
breed.” Id. The Government’s conduct stopped “far short of
violating that fundamental fairness, shocking to the
universal sense of justice, mandated by the Due Process
Clause.” Id. at 432 (internal quotation marks omitted).
The Court revisited the issue in Hampton v. United States,
425 U.S. 484 (1976), and a plurality of the Court suggested
that a defendant’s remedy for improper government con-
duct lies either in the entrapment defense or in state and
federal statutes, and not in the Due Process Clause. See id. at
489–90 (plurality opinion). The plurality explained:
If the result of the governmental activity is to
implant in the mind of an innocent person the
disposition to commit the alleged offense and
induce its commission, the defendant is pro-
tected by the defense of entrapment. If the po-
lice engage in illegal activity in concert with a
defendant beyond the scope of their duties the
remedy lies, not in freeing the equally culpable
defendant, but in prosecuting the police under
the applicable provisions of state or federal
law.
No. 14-1119 11
Id. at 490 (alteration omitted) (citation omitted) (internal
quotation marks omitted). However, in a concurring opinion
joined by Justice Blackmun, Justice Powell stated that he was
“unwilling to conclude that an analysis other than one
limited to predisposition would never be appropriate under
due process principles.” 24 Id. at 493 (Powell, J., concurring).
The Supreme Court, therefore, never has laid to rest
whether, and in what circumstances, government
misconduct requires the dismissal of an indictment against a
criminal defendant.
Our early cases expressed skepticism about the validity
of the “outrageous government conduct” defense. See, e.g.,
Duncan, 896 F.2d at 275, 277 (noting that the doctrine’s
validity was questionable and concluding that the district
court did not commit plain error in refusing to recognize an
“outrageous governmental conduct” defense); United States
v. Belzer, 743 F.2d 1213, 1216–20 (7th Cir. 1984) (holding that
the Government’s conduct was not outrageous and therefore
24 Justice Powell quoted at length the view of Judge Friendly:
“[T]here is certainly a [constitutional] limit to allowing
governmental involvement in crime. It would be un-
thinkable, for example, to permit government agents to
instigate robberies and beatings merely to gather evi-
dence to convict other members of a gang of hoodlums.
Governmental ‘investigation’ involving participation in
activities that result in injury to the rights of its citizens
is a course that courts should be extremely reluctant to
sanction.”
Hampton v. United States, 425 U.S. 484, 493 n.4 (1976) (Powell, J., concur-
ring) (alterations in original) (quoting United States v. Archer, 486 F.2d
670, 676–77 (2d Cir. 1973) (footnote omitted)).
12 No. 14-1119
did not violate due process). More recently, we have said
that the defense “does not exist in this circuit.” 25 United
States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995). In Boyd, we
explicitly rejected the “intimations that ‘outrageous
governmental misconduct’ is an independent ground for
ordering a new trial.” Id. Our rejection of the defense was
premised in part on the Supreme Court’s instruction in
United States v. Hasting, 461 U.S. 499 (1983), that “we are not
to reverse convictions in order to punish prosecutors.”26
25 Based on the Supreme Court’s statements in Russell, some circuits
have recognized and applied an “outrageous government conduct”
defense. See, e.g., United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013)
(noting that only two reported decisions by federal appellate courts have
reversed convictions under this doctrine). Other circuits, including our
own, have rejected the defense outright. See United States v. Amawi, 695
F.3d 457, 483 (6th Cir. 2012) (“This court has soundly rejected the
‘outrageous government conduct’ defense….”). Most circuits, however,
have left the matter open. See, e.g., United States v. Dyke, 718 F.3d 1282,
1287 (10th Cir. 2013) (“Others [sic] circuits still, and we find ourselves in
this camp, recognized the doctrine’s potential viability in the immediate
aftermath of Russell and have so far declined to inter it formally, even
while they have yet to find a single case where the defense applies.”).
26 The Supreme Court, on multiple occasions, has held that it is
inappropriate to dismiss an indictment based on prosecutorial
misconduct in the absence of prejudice to the defendant. See Bank of Nova
Scotia v. United States, 487 U.S. 250, 263 (1988) (“We conclude that the
District Court had no authority to dismiss the indictment on the basis of
prosecutorial misconduct absent a finding that petitioners were
prejudiced by such misconduct.”); United States v. Hasting, 461 U.S. 499,
506 (1983) (“Supervisory power to reverse a conviction is not needed as a
remedy when the error to which it is addressed is harmless since, by
definition, the conviction would have been obtained notwithstanding the
asserted error.”); United States v. Morrison, 449 U.S. 361, 365 (1981)
(“More particularly, absent demonstrable prejudice, or substantial threat
(continued...)
No. 14-1119 13
Boyd, 55 F.3d at 241 (citing Hasting, 461 U.S. at 506–07). We
repeatedly have reaffirmed our decision not to recognize the
defense. 27
Although we recognize that the Supreme Court has not
closed the door entirely on this matter, this case certainly
does not present us with an opportunity to reconsider our
position. Instead, this case, in which the Government simply
provided the defendant with the opportunity to commit an
offense, is governed by the basic principles of entrapment.
We have long recognized that, when an individual is ready
and willing to engage in illegal activity, the fact that the
Government affords him an opportunity to commit the
crime provides no legal impediment to prosecution. See
(...continued)
thereof, dismissal of the indictment is plainly inappropriate, even though
the violation may have been deliberate.”); accord United States v. Boyd, 55
F.3d 239, 241 (7th Cir. 1995) (“Prosecutorial misconduct may precipitate a
reversible error, but it is never in itself reversible error.”).
27 See United States v. Westmoreland, 712 F.3d 1066, 1071 (7th Cir. 2013)
(noting that, without real guidance from the Supreme Court, “our court
has disallowed such a defense in this circuit”); United States v. Stallworth,
656 F.3d 721, 730 (7th Cir. 2011) (noting that there was “a fatal problem
with [the defendant’s argument]: Outrageous government conduct is not
a defense in this circuit”); United States v. White, 519 F.3d 342, 346 (7th
Cir. 2008) (noting that “this circuit clearly and consistently has refused to
recognize any defense based on…asserting ‘outrageous government
conduct’”); United States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006) (not-
ing that we had “never taken what we see to be an extreme step of dis-
missing criminal charges against a defendant because of government
misconduct”); Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003)
(noting that this court “flatly rejected the doctrine” of outrageous gov-
ernment conduct).
14 No. 14-1119
United States v. Mayfield, 771 F.3d 417, 431 (7th Cir. 2014) (en
banc) (noting that the “fundamental principle in entrapment
law that the government’s offer of a run-of-the-mill
opportunity to commit the charged crime isn’t entrapment”
“has been around from the beginning”); see also United States
v. Westmoreland, 712 F.3d 1066, 1072 (7th Cir. 2013)
(recognizing that “the [outrageous government conduct]
defense has come into play only where the government’s
involvement created a crime or criminal enterprise that did
not exist before, and where the government had to coerce
the defendant to commit the crime by some unreasonable
means”); Belzer, 743 F.2d at 1217 (requiring inducement that
was “exceedingly generous or in some other way excessively
coercive” (citation omitted) (internal quotation marks
omitted)); United States v. Kaminski, 703 F.2d 1004, 1009 (7th
Cir. 1983) (“Granting that a person is predisposed to commit
an offense, we think that it may safely be said that
investigative officers and agents may go a long way in
concert with the individual in question without being
deemed to have acted so outrageously as to violate due
process….” (internal quotation marks omitted)). We
similarly have recognized that “[t]he use of informants and
the offer of a reasonable inducement are proper means of
investigating crime.” Kaminski, 703 F.2d at 1009.
The evidence presented at trial clearly demonstrates that
the Government did not induce Mr. Smith to commit the
crime, see Mayfield, 771 F.3d at 434–35 (defining inducement
as “government solicitation of the crime plus some other
government conduct that creates a risk that a person who
would not commit the crime if left to his own devices will do
No. 14-1119 15
so in response to the government’s efforts” 28 (emphasis in
original)); rather, he was a ready and willing participant in
the illicit transactions. Although Mr. Smith testified that
Roberson induced him to enter into the criminal transaction
in order to protect Roberson’s family, both the jury and the
district court, through its conclusion that Mr. Smith
obstructed justice by testifying falsely, found that
Mr. Smith’s testimony was incredible. Instead, the jury
credited Roberson’s testimony denying Mr. Smith’s claims.
Aside from Mr. Smith’s discredited testimony, there is no
evidence that Mr. Smith otherwise was induced to commit
the crime. Cf. United States v. Blitch, 773 F.3d 837, 845 (7th
Cir. 2014) (noting that the Government’s “offer was a take-it-
or-leave-it proposition” and that the Government did
“nothing more than make a stash house robbery available”);
Stallworth, 656 F.3d at 730 (noting “that there is nothing
inherently outrageous about conducting a sting operation”).
Instead, the evidence demonstrates that Mr. Smith
actively sought out the criminal activity. See Mayfield, 771
F.3d at 438 (holding that “a defendant is predisposed to
commit the charged crime if he was ready and willing to do
so and likely would have committed it without the
government’s intervention, or actively wanted to but hadn’t
yet found the means”). Roberson testified that, prior to the
ATF’s investigation, Mr. Smith told him that he needed
28 “The ‘other conduct’ may be repeated attempts at persuasion, fraudu-
lent representations, threats, coercive tactics, harassment, promises of
reward beyond that inherent in the customary execution of the crime,
[or] pleas based on need, sympathy, or friendship….” United States v.
Mayfield, 771 F.3d 417, 435 (7th Cir. 2014) (en banc).
16 No. 14-1119
money and asked Roberson whether he knew anyone who
was “doing big time drug dealing, or transporting” and
discussed the possibility of providing security for them.29
Mr. Smith also asked Roberson if he knew the location of
any stash houses so that they “could gear up and go in as
police and rob the house.” 30 Roberson stated that he and
Mr. Smith discussed robbing stash houses several times. In
addition, Detective Anderson testified that she contacted the
ATF because Roberson had told her that Mr. Smith “began
talking about doing security for drug dealers or robbing
them and selling the product.” 31
The remaining evidence reveals that, when presented
with the opportunity, Mr. Smith jumped at the prospect of
regularly providing security for large-quantity drug
transactions. See Blitch, 773 F.3d at 845 (“Carwell’s
predisposition is aptly demonstrated by his overwhelming
enthusiasm for the venture.”); Stallworth, 656 F.3d at 726(rejecting the defendant’s entrapment defense because he
“showed no reluctance in participating and profiting from
the deal”). During Mr. Smith’s first meeting with the
undercover ATF agent, Mr. Smith repeatedly expressed his
interest in making money and attempted to gain the agent’s
trust. Mr. Smith then suggested that he, Roberson, and the
undercover agent “ought to sit down and talk about how we
can—how we can best make some…money between the
29 R.142 at 126.
30 Id. at 127.
31 Id. at 70.
No. 14-1119 17
three of us.” 32 When the agent responded that he was not
interested in legitimate business, Mr. Smith responded,
“whatever you want to do.” 33
During their subsequent meetings, Mr. Smith continually
expressed his interest in making money by providing
security for the agent. When first asked about providing
security for the agent during a specific trip, Mr. Smith
expressed his enthusiasm by responding, “Tell me where
you want to go and when.” 34 Mr. Smith assured the agent
that he was well-equipped with firearms to provide
adequate protection and that he was not afraid to resort to
violence, stating that he would “kill a motherf***er just as
quick as they’re standing there.”35 Later, during a
conversation with Roberson after having discussed working
with the undercover agent, Mr. Smith stated that he would
be “glad when [the agent] starts calling so we can start
making some…money.” 36
Mr. Smith’s statements and conduct demonstrate that, far
from being coerced to commit the crimes, Mr. Smith was a
willing, if not enthusiastic, participant in the criminal
activity.
32 Gov’t Ex. 8c, at 3.
33 Id.
34 Gov’t Ex. 8f, pt. 1, at 5.
35 Id. at 7.
36 R.142 at 138.
18 No. 14-1119
Conclusion
Because we do not recognize outrageous government
conduct as cause for dismissing an indictment, Mr. Smith’s
challenge to his conviction fails. In any event, the evidence
reveals that Mr. Smith jumped at the opportunity to make
money by providing protection for individuals involved in
the illicit drug trade and that he was an active and
enthusiastic participant throughout the sting operation. The
district court, therefore, did not commit plain error by failing
to dismiss Mr. Smith’s indictment on account of the
Government’s conduct. The judgment of the district court is
affirmed.
AFFIRMED