United States v. Lincoln Plowman , 700 F.3d 1052 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3781
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L INCOLN P LOWMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 10-CR-00151—Larry J. McKinney, Judge.
A RGUED S EPTEMBER 13, 2012—D ECIDED N OVEMBER 20, 2012
Before M ANION, S YKES, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Lincoln Plowman was a local
government official in Indianapolis, Indiana, when he
accepted a bribe from an undercover FBI agent. Prior
to trial, the government filed a motion in limine seeking
to preclude Plowman from arguing an entrapment de-
fense. The district court granted the motion. A jury
then convicted Plowman of federal-funds bribery and
attempted extortion under color of official right. Plowman
2 No. 11-3781
appeals, and argues that the district court erred when
it precluded him from arguing entrapment to the jury.
We affirm Plowman’s conviction.
I.
Lincoln Plowman had been a law enforcement officer
since 1988 and advanced to the rank of major in
the Indianapolis Metropolitan Police Department
(“IMPD”). In November 2003, Plowman was elected to
the Indianapolis-Marion County City-County Council
(“Council”), and in November 2007, he was reelected to
another term. Plowman became the majority leader on
the Council in January 2008 and held that position
through 2009. While he was on the Council, Plowman
served as Chairman of the Metropolitan Development
Committee, which oversees the zoning of Indianapolis
and Marion County. This committee also oversees the
appointment of officials to the Metropolitan Board of
Zoning Appeals (“BZA”), which can grant variances to
a property’s zoning designation. As Chairman of the
Metropolitan Development Committee, Plowman nomi-
nated his campaign manager to be a member of the BZA
in 2008. Plowman’s campaign manager was then ap-
pointed to the BZA, and Plowman supported his cam-
paign manager’s reappointment to the BZA again in 2009.
While serving in these official positions, Plowman
apparently developed a reputation for his questionable
No. 11-3781 3
use of the power and influence he had acquired.1 The
Federal Bureau of Investigation (“FBI”) became inter-
ested in Plowman’s activities and set up a sting opera-
tion. The FBI had an undercover officer, “Mark,” pose as a
strip club owner from San Diego, California, who wanted
to open a “five-star” strip club in Indianapolis. A confiden-
tial source agreed to arrange a meeting between Plowman
and Mark.
Plowman met Mark on August 11, 2009, and during
their very first conversation, Plowman talked about
receiving money in exchange for his political influence.
Just a few minutes into the conversation, Plowman
stated that Mark would have trouble finding property
in Indianapolis that was zoned for a strip club, and Plow-
man said, “Hey, you know what? . . . I could give you
the reach around, and you could throw me some
money, and you could spread some money out here. . . .
[Y]ou’re going to get the same thing afterwards, so why
not tell you up front?” Plowman was the first person in
the conversation to mention a payment. Plowman also
began to discuss his role in local politics. He explained
that he was a twenty-year veteran of the IMPD and the
1
According to the government, Plowman had a history of
accepting lucrative arrangements with business owners for
questionable “consulting” work. Beginning in 2005 and con-
tinuing through 2009, Plowman used his influence to head off
a smoking ban for PT’s Showclub, a strip club in Lawrence,
Indiana, that opposed the ban. Despite taking money from
PT’s Showclub, Plowman failed to file the appropriate dis-
closure forms for this off-duty income.
4 No. 11-3781
“number two guy on the City Council.” Additionally,
Plowman told Mark that he had been Chairman of the
“Zoning Board” for two years, and for “a couple bucks,”
he knew how to “push” Mark’s strip club through the
BZA. In a second conversation later that day, Plowman
again emphasized that he was well connected in local
politics and had influence on the Alcohol & Tobacco
Commission. Finally, in a third conversation that day,
Plowman told Mark that because he “control[led] the
Zoning,” he would treat his work for Mark as “lobbying,”
and not as “some sort of a corruption or bribe thing.”
Plowman then explained, “I’ll ask you for a couple of
bucks, and . . . it’s no secret, I’m gonna put some in my
pocket,” but he also added that he would “probably
throw 50 percent of it around.”
Plowman elaborated on his fee requirements about
two weeks later, on August 26, 2009, when he and
Mark had dinner and went to a strip club to further
discuss Mark’s plans. If Mark needed a zoning variance,
Plowman assured Mark that he would be able to help
because he had appointed several members to the
“Zoning Boards” and therefore controlled them. But to
exercise his political influence, Plowman said he
needed a financial “retainer” from Mark. Plowman then
proposed an arrangement in which Mark would pay
“$5,000 [in] cash, and a $1,000 check made out to [Plow-
man’s] campaign fund,” which Plowman could then
“spread around” and use to “schmooze” his political
friends on the BZA.
Several weeks later, on September 18 and 19, 2009,
Mark showed Plowman a building, called The Winery,
No. 11-3781 5
that he said he was interested in buying and converting
into a strip club. But Plowman told Mark that The
Winery would have zoning and liquor license issues.
Plowman suggested that he could resolve these issues
if Mark gave him some money for “a couple dinners . . . to
make somebody put your app[lication] on top, or get
you a little preferential legal treatment.” Plowman ex-
plained that he was able to exert this influence because
he oversaw the appointment of BZA officials, and he
would not support the reappointment of officials
who ignored him.
Plowman then began to look for suitable property
for Mark’s strip club. Plowman and Mark talked on
October 9, 2009, and Plowman told Mark that he was
working with a realtor to find a property that could be
converted into a strip club. They talked again on
October 29, 2009, and Plowman apologized for neg-
lecting Mark’s business venture. Plowman told Mark
to buy a property soon because Plowman’s appointees
would no longer be on the BZA the following year, and
“it might be easier if . . . we’ve got some people
on there taking care of us, if you understand what I’m
saying.” Approximately two weeks later, Plowman fol-
lowed up on these phone conversations and mailed
Mark a booklet of potential properties that Plowman’s
realtor had compiled. Although many of the properties
in the booklet were not suitable for a strip club, Mark
called Plowman in late November to express interest
in a property located near the airport. Plowman agreed
to look into the property’s zoning classification and
the possibility of getting a liquor license for the property.
6 No. 11-3781
About a week later, on November 30, 2009, Plowman
informed Mark that although the airport property did
not meet the zoning requirements, there might be “some
room for movement,” but it would take a few weeks to
determine if the property could get a zoning variance.
Mark asked if he could help by coming to Indianapolis
with his checkbook, and Plowman responded that “it
might help me buy a couple dinners for some people
that might be in the mood to listen to us.” On December 3,
2009, Plowman told Mark that he had contacted an at-
torney who was going to look into the zoning status of
the property near the airport, and Plowman noted that
if there were any zoning issues, they could potentially
be solved through a BZA variance. If the property
needed a BZA variance, Plowman asserted that he would
be “working behind the scenes with these guys on the
variance boards,” but he still needed to determine
which BZA division would be the “friendliest.” Plowman
added that he had an appointee on the liquor board
who could help Mark get a liquor license. After a few
more conversations, Mark informed Plowman that he
was prepared to move forward with the airport prop-
erty, and was therefore coming to Indianapolis.
On December 22, 2009, Mark and Plowman met in a
hotel room in Indianapolis that was secretly rigged to
videotape the meeting. Mark had booked the room and
was accompanied by two female undercover FBI agents.
Plowman met Mark for the evening, and when the
two undercover agents stepped out of the room, Plow-
man and Mark discussed the zoning variance. Plowman
stated that his work on the project had been minimal,
No. 11-3781 7
and Mark only owed him a “thank you” at this point. But
more work remained, Plowman indicated, and he would
continue to help Mark by ensuring that the property’s
variance petition would be heard by a BZA division
in which he had “friends,” and by taking BZA mem-
bers out to dinner “one at a time.” Mark asked how
much money it would take to obtain the variance, and
Plowman responded that he would need “a little money
to throw around.” Mark then asked if he should still
make the $5,000 and $1,000 payments, and Plowman
stated that he would now need another “thousand or
two” more to “throw around.” Plowman explained that
he would use the money to “throw a couple of dollars
here and there,” and he added that he needed “a few
dollars here and there” to give to his wife.
Plowman and Mark then discussed when the pay-
ment should be made. Plowman said that he would take
an “advance” for expenses, but would take his cut
later. Mark insisted on giving Plowman the $5,000 in
the hotel room, and Plowman agreed. Mark then gave
Plowman $5,000 in $100 bills, and Plowman said that
he would work hard for Mark and would “[t]ake care
of the people that we need to take care of.” FBI agents
entered the room a few minutes later, revealed their
investigation, and recovered the money. The agents did
not arrest Plowman, and made it clear that he was
free to leave. Plowman told the agents that he had
accepted the money to cover his expenses and as com-
pensation for the work that he did for Mark. Plowman
conceded, however, that he did not have a side busi-
ness and did not give Mark a receipt for the payment.
8 No. 11-3781
On March 8, 2010, Plowman retired from the IMPD at
the rank of major. Then on September 15, 2010, a
federal grand jury returned an indictment charging
Plowman with federal-funds bribery under 18 U.S.C.
§ 666(a)(1)(B), and attempted extortion under color of
official right under 18 U.S.C. § 1951(a). The government
filed a sealed motion in limine requesting “an order
in limine precluding the presentation of an entrap-
ment defense during opening statement, the ques-
tioning of witnesses, the presentation of evidence, and
closing argument unless and until defendant makes a
sufficient showing or proffer of evidence.” The district
court granted the motion. The district court then held a
jury trial, and after the trial was complete, the judge
twice reiterated that he would not issue an entrapment
instruction. On September 15, 2011, the jury found Plow-
man guilty on both counts. Plowman was sentenced
to forty months in prison and two years of supervised
release. He now appeals his conviction and argues that
the district court erred by granting the government’s
motion in limine on the entrapment defense.
II.
A district court’s pretrial determination that a de-
fendant is not allowed to present an entrapment defense
is reviewed de novo. United States v. Santiago-Godinez,
12 F.3d 722, 726 (7th Cir. 1993). Entrapment is usually
an issue for a jury, but it can be addressed as a matter
of law before trial if the defendant is unable to provide
sufficient evidence that a rational jury could infer that
No. 11-3781 9
the defendant had been entrapped. Id. at 727. The defen-
dant does not need to prove entrapment in such a
pretrial proceeding, but the defendant has the burden to
present more than a scintilla of evidence that entrap-
ment occurred. Id. at 727-28. The district court must
accept the defendant’s evidence as true for purposes of
this pretrial ruling. United States v. Blassingame, 197
F.3d 271, 279 (7th Cir. 1999).
Entrapment is “the apprehension of an otherwise law-
abiding citizen who, if left to his own devices, likely
would have never run afoul of the law.” Jacobson v.
United States, 503 U.S. 540, 553-54 (1992). An entrapment
defense contains two related elements: (1) government
inducement of the crime; and (2) the defendant’s lack
of predisposition to engage in the crime. Mathews v.
United States, 485 U.S. 58, 62-63 (1988); United States v.
Teague, 956 F.2d 1427, 1433-34 (7th Cir. 1992). Courts
often refer to predisposition as the “principal element” of
this defense, but to present an entrapment instruction to
a jury, a defendant must be able to proffer sufficient
evidence of both elements. See Mathews, 485 U.S. at 62-63;
United States v. Kindle, ___ F.3d ___, 2012 WL 4372519,
at *6 (7th Cir. Sept. 26, 2012).
We have recommended analyzing the predisposition
element first, but we have also recognized that “where
there is insufficient evidence of inducement—either
because there is no such evidence at all, or because
the government did nothing more than offer a standard
market deal in a sting—there is no need to consider
predisposition.” United States v. Pillado, 656 F.3d 754, 764-65
10 No. 11-3781
(7th Cir. 2011). The government’s inducement does not
always need to be “extraordinary” to satisfy the induce-
ment element; even “minor government inducements”
may be sufficient in some cases. Id. at 765-66. Induce-
ment can occur through a variety of methods, such as
“by grave threats, by fraud (the police might persuade
[a defendant] that the act they want him to commit is
not criminal), or, in the usual case in which entrapment
is pleaded, by extraordinary promises—the sorts of
promises that would blind the ordinary person to his
legal duties.” United States v. Evans, 924 F.2d 714, 717
(7th Cir. 1991). In the bribery context, we have ex-
amined the size of the bribe offered to the defendant, the
defendant’s willingness to use political influence to
help the undercover agent, and the nature of the rela-
tionship between the defendant and the undercover
agent. See Blassingame, 197 F.3d at 282-83.
In this case, the government filed its motion in limine,
and Plowman opposed the motion. He argued that the
government had induced him into taking the bribe by
creating an “extraordinary scheme” that “used a charis-
matic agent to prey on Plowman’s desire to feel accepted
and for friendship.” Plowman further argued that Mark
“resisted Plowman’s repeated suggestions that it buy
a club that did not need to be rezoned.” The district
court rejected these arguments and granted the govern-
ment’s motion in limine because Plowman had pro-
vided insufficient evidence that the government had
induced him to accept the bribe. Because the district
court found insufficient evidence of inducement, it did
not address the predisposition element.
No. 11-3781 11
Plowman’s proffer was too vague and conclusory to
be sufficient for an entrapment instruction to the jury.
Instead of proffering specific evidence about induce-
ment, Plowman merely alluded to his desires and
feelings about Mark and to generalized summaries of
the FBI’s sting operations.
Although Plowman’s proffer was thin, the evidence
presented at trial provided a clearer record about the
facts of this case. The evidence presented at trial,
including tapes and transcripts of Plowman’s conversa-
tions with Mark, is not reasonably in dispute and
disproves the vague generalities in Plowman’s pretrial
proffer, which we believe is too vague to warrant
the deference accorded to pretrial proffers under
Blassingame and Santiago-Godinez. The transcripts over-
whelmingly show that Plowman was not entrapped
into accepting the bribe. In reviewing the district
court’s pretrial decision, we are not required to close
our eyes to that indisputable evidence.
The district court correctly concluded that there
was insufficient evidence that the government induced
Plowman to accept the bribe. First, the bribe was a rela-
tively small amount; it was not large enough to be
labeled an inducement. We have previously hypothesized
that if the government “offered a derelict $100,000 to
commit a minor crime that he wouldn’t have dreamed
of committing for the usual gain that such a crime could
be expected to yield, and he accepted the offer and com-
mitted the crime, that would be entrapment.” Evans,
924 F.2d at 717. But a bribe for a comparatively small
12 No. 11-3781
value is not likely to be an inducement. That was the
case in Blassingame, in which we ruled that bribes
totaling $9,000 were insufficient to establish induce-
ment. Blassingame, 197 F.3d at 283. In this case,
Plowman accepted a bribe of $5,000 in cash, and had
an expectation that he would receive a $1,000 campaign
contribution and perhaps a “thousand or two” more.
Although this bribe was large enough for Plowman to
wine and dine government officials and still have
money left over for his own personal use, the bribe
was still less than the bribe in Blassingame.
Additionally, Mark did not mislead Plowman into
thinking that Plowman was performing a legal business
service. Plowman argues that he took the money as pay-
ment for legitimate “consulting,” such as contacting
realtors and attorneys, but that mischaracterizes Plow-
man’s activities. From Plowman’s very first meeting
with Mark, Plowman focused on the zoning issues that
Mark faced. To address these zoning issues, Plowman
discussed his plans to influence various government
officials by taking them out to dinner and obtaining
their cooperation by leveraging his appointment power.
When Plowman requested money from Mark, the
money was not just to reimburse a realtor or attorney,
but to help Plowman “schmooze” other public officials
and to line his own pockets. After the FBI revealed its
sting operation, Plowman admitted that he did not have
a side business and had not given Mark a receipt for
the $5,000.
Plowman further argues that he would have only
conducted legal “consulting” work had Mark not
No. 11-3781 13
“resisted Plowman’s repeated suggestions that [Mark]
buy a club that did not need to be rezoned.” The
evidence, though, does not support this argument;
rather, the evidence shows that Plowman voluntarily
collected information about a wide variety of properties,
many of which were not suitably zoned. But even if
Mark had guided Plowman’s inquiries to properties
that had zoning issues, this shows—at most—that
Mark was persistent. Although persistence can become
a form of inducement, Mark’s undercover interaction
with Plowman lasted a mere five months, and Mark’s
conversations with Plowman were too infrequent to
establish inducement through persistence. Compare
United States v. Highman, 98 F.3d 285, 290 (7th Cir. 1996)
(“[P]ersistence . . . in the absence of coercion . . . does
not establish inducement.”), and United States v.
Theodosopoulos, 48 F.3d 1438, 1447 (7th Cir. 1995)
(finding no inducement when the defendant’s inter-
action with the government occurred over “three
months and nine meetings”), with Jacobson, 503 U.S. at 552-
54 (ruling that the government had “exerted sub-
stantial pressure” and induced the defendant to commit
a crime after the government “devoted 2½ years to con-
vincing [the defendant] that he had or should have
the right to engage in the very behavior proscribed
by law”).
Finally, Plowman was an active and willing participant
in his discussions with Mark. We recognize that induce-
ment can occur when a government agent preys on a
defendant’s emotional weaknesses. See Sherman v. United
States, 356 U.S. 369, 373-75 (1958) (ruling that the gov-
14 No. 11-3781
ernment induced a recovering drug addict to commit a
crime by appealing to the addict’s sympathy and con-
vincing him to return to his drug habit). Plowman claims
that Mark preyed on his “desire to feel accepted and
for friendship,” but Plowman was a seasoned politician
and a law enforcement officer, and had none of the
traits of someone who was emotionally weak like the
recovering drug addict in Sherman. Instead, Plowman
bragged about the power that he was able to assert as
a member of the Council, as an appointing authority for
the BZA, and as a high-ranking officer in the IMPD.
Additionally, a defendant must present evidence of
such “unusual or unfair persuasion.” See United States
v. Hall, 608 F.3d 340, 343-44 (7th Cir. 2010). The record
in this case, however, contains no evidence that Mark
affected Plowman’s behavior by appealing to Plowman’s
emotional vulnerabilities. Instead, the record shows
that Plowman was the instigator of the bribery scheme.
In Plowman’s first conversation with Mark, Plowman
brought up the idea of a payment when he said, “Hey,
you know what? . . . I could give you the reach around,
and you could throw me some money, and you could
spread some money out here.” Furthermore, Plow-
man—and not Mark—was the first person to detail the
method of payment for Plowman’s “consulting” services.
Without any evidence of emotional manipulation, Plow-
man fails to establish inducement.
III.
The FBI conducted a standard sting operation that did
not induce Plowman to accept a bribe. To argue entrap-
No. 11-3781 15
ment to a jury, Plowman needed to provide sufficient
evidence of both inducement and a lack of predisposi-
tion, but he failed to establish the first element. Because
the district court did not err in granting the govern-
ment’s motion in limine on the entrapment defense,
we A FFIRM Plowman’s conviction.
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