United States v. James Barta , 776 F.3d 931 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3208
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES BARTA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 487—John J. Tharp, Jr., Judge.
____________________
ARGUED SEPTEMBER 8, 2014 — DECIDED JANUARY 28, 2015
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Defendant James Barta has ap-
pealed his conviction for conspiracy to commit bribery. He
was charged and convicted based on an undercover gov-
ernment sting operation that evolved into an agreement
among Barta and his co-defendants to bribe a fictional coun-
ty official in California to obtain a government contract. We
2 No. 13-3208
reverse because Barta was entrapped as a matter of law. We
ordered his release from prison shortly after hearing argu-
ment in this case. This opinion provides the detailed expla-
nation for that decision.
“Entrapment is a defense to criminal liability when the
defendant was not predisposed to commit the charged crime
before the intervention of the government’s agents and the
government’s conduct induced him to commit it.” United
States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc).
There are two elements to the defense of entrapment: the de-
fendant’s lack of predisposition and the government’s in-
ducement. Here the government made the unusual but ap-
propriate decision to concede that Barta was not predisposed
to commit the charged crime. Predisposition is the “principal
element in the defense of entrapment.” United States v. Rus-
sell, 411 U.S. 423, 433 (1973). To overcome Barta’s entrapment
defense, therefore, the government was required to “prove
beyond a reasonable doubt … that there was no government
inducement” in this case. Mayfield, 771 F.3d at 443. The gov-
ernment failed to do so.
Inducement “means 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 so in response to the government’s efforts.”
Id. at 434–35. Undisputed evidence shows that several “plus
factors” signaling inducement were present in this case. In
the course of its undercover operation the government em-
ployed “repeated attempts at persuasion.” Id. at 435. It em-
ployed both “fraudulent representations” and “promises of
reward beyond that inherent in the customary execution of
the crime.” Id. It also employed “pleas based on need, sym-
No. 13-3208 3
pathy, or friendship.” Id. The cumulative effect of these tac-
tics directed at Barta amounted to inducement. Because Bar-
ta was induced and the government concedes that he was
not predisposed, it follows that he was entrapped as a matter
of law. We do not reach the other issues he raises on appeal.
I. Factual Background
Barta became a target of an FBI sting operation through
his friendship with Gustavo Buenrostro. Buenrostro was in
turn an associate of Ambrosio Medrano, and both are Barta’s
co-defendants in this conspiracy case. The story begins,
though, before Buenrostro and later Barta came on the scene.
Medrano had dealings with a man purporting to be a health
care consultant named George Castro. Castro told Medrano
he could, in return for payment of a bribe to a corrupt coun-
ty official, obtain contract approval from Los Angeles Coun-
ty for the purchase of medical bandages by its hospital sys-
tem. In reality the man purporting to be Castro was an un-
dercover FBI agent and there was no corrupt official. But
Medrano did not know this, of course, so he approached
Castro about making another deal.
At that point, in late 2011, Medrano recruited Buenrostro
to join him for this second deal with Castro. For several
months, Castro communicated only with Medrano and
Buenrostro. The government had no contact with Barta be-
fore March 21, 2012, when Barta’s co-defendants first intro-
duced him to Castro. Though this FBI sting stretched out
over many months, Barta spoke with Castro four times—in
three meetings and one telephone call. These conversations
occurred on March 21, May 9, June 12, and June 22. The de-
tails of these conversations and the events surrounding each
4 No. 13-3208
conversation set the stage for the legal analysis below in Sec-
tion II.
A. March 21 Meeting
The first thing Barta said to Castro at the March 21 meet-
ing, after the two were introduced to each other, was “I’m
not trying to sell you anything.” Barta told Castro that he
was at the meeting because of Buenrostro: “Gus asked me to
come and tell you what we do.” The “we” in that statement
refers to Sav-Rx, which Barta described to Castro as a pre-
scription benefit management business. Barta is a founder
and owner of Sav-Rx, though he turned over much of the
management of the company to his daughter in 2007. He
told Castro that Sav-Rx provided prescription benefit man-
agement services primarily for unions, but also for the Cook
County hospital system in Chicago.
Castro responded that while his company was not cur-
rently involved with pharmaceuticals, he could serve as a
“broker” between companies and Los Angeles County be-
cause he knew “an individual in the country system.” At dif-
ferent points in the meeting Castro described the payment
he was seeking in return for the promised contract approval
as a “finder’s fee,” “good faith money,” and a “commission.”
To these various descriptions Barta replied that he under-
stood what Castro was saying, and Barta closed the meeting
by saying “I hope we can do some business.” Barta spent just
twelve minutes at this meeting.
A bit more background about the sting operation pro-
vides the context for the March 21 meeting. Medrano was
introduced to Castro by a man named Michael DiFoggio,
who was a cooperating witness working with the FBI as part
No. 13-3208 5
of this sting operation. Before the March 21 meeting, DiFog-
gio repeatedly asked Medrano to send a written proposal for
a deal between Sav-Rx and Los Angeles County in advance
of the meeting. Medrano did not do so, and Barta himself
never provided such a proposal, though he did give Castro
some generic Sav-Rx brochures at their first meeting on
March 21. DiFoggio also repeatedly asked Medrano for a
cash payment from Barta to Castro. DiFoggio asked for this
payment to be made at the March 21 meeting. It was not.
DiFoggio then asked that the payment be made on May 9,
the next time that Barta and Castro met. Barta made no
payment at that meeting either.
Nothing in the previous paragraph should be taken to
suggest that before the March 21 meeting DiFoggio directly
asked Barta for anything. At that time DiFoggio was dealing
only with Medrano and Buenrostro. It was they who told
DiFoggio that Barta would be willing to provide a proposal
and payment. Barta had no contact with the government
(Castro or DiFoggio) until the March 21 meeting.
B. May 9 Meeting
The May 9 meeting was Barta’s longest meeting with Cas-
tro. Medrano and Buenrostro began the meeting by explain-
ing how they could form a company to partner with Sav-Rx
as a “minority participant” in a contract with Los Angeles
County. Castro continued the conversation by saying he
spoke with “the guy that would approve” the contract, and
this person would ensure approval of the contract by tailor-
ing the request for proposal from the county to favor Sav-Rx.
A quiet Barta had not said much in the meeting when
Buenrostro asked him, “What are your views on all this
6 No. 13-3208
stuff, Jim, or are you just soaking it in?” Barta responded
that Sav-Rx had succeeded in Cook County by cutting the
amount of time patients waited for their prescriptions and
the amount of money hospitals paid to dispense prescrip-
tions. He went on to say that if Los Angeles County had “a
problem,” as Cook County had, then a deal would make
sense. But if Los Angeles County was already “efficiently
dispensing” its medications, then there would be no prob-
lem for Sav-Rx to solve. Barta also described how adding a
mail-order option had created greater efficiencies in Cook
County. Near the end of the meeting Barta explained to
Buenrostro how Buenrostro could research the Los Angeles
County hospital system to determine whether it would bene-
fit from Sav-Rx’s services. And Barta told Castro that if Los
Angeles County had a problem for Sav-Rx to solve, “I’m in
100%.”
After the May 9 meeting the FBI aggressively tried to
close the fake deal—and the real operation underlying it.
Here are excerpts from emails that Castro sent to Barta fol-
lowing that meeting, none of which drew a reply from Barta.
“I spoke to my friend and he is willing to move forward on
our end. We await your response if you would like to pro-
ceed.” That email was sent May 16. “My friend would like to
get this matter settled and I told him that by next week we
would know whether or not we are moving forward.” That
email was sent May 30. “We are ready to begin on our end. I
will be in Chicago until Friday. I can extend my visit through
as late as next Thursday if you want to meet in person to …
take care of the final detail. Let me know how you would
like to proceed.” That email was sent June 6. Again, Barta
replied to none of these emails.
No. 13-3208 7
The FBI also sent Barta emails about the Los Angeles
County hospital system. Confronted at the May 9 meeting
with Barta’s concern about whether the county had a prob-
lem for Sav-Rx to solve, the FBI decided to fabricate a prob-
lem. At the time the real Los Angeles County hospital system
was already offering a mail-order option for receiving pre-
scriptions. It was also using automation at its pharmacies.
Buenrostro’s research revealed as much. The FBI responded
by falsely claiming that patients were waiting too long for
prescriptions and were receiving the wrong prescriptions,
along with falsely claiming that the automation technology
was inefficient and unreliable.
As the sting operation stretched on, the FBI also sweet-
ened the terms of the tentative deal being discussed. In the
May 9 meeting, Castro mentioned a three-year contract to
dispense around 1 million prescriptions per year. Later in
May, Castro sent emails substantially raising the financial
stakes for the fictional deal, saying the number of yearly pre-
scriptions would be up to 2 million in the first year of the
contract and 3 million in the remaining years.
Castro next met with Medrano and Buenrostro on May
24. Barta was not at that meeting. Castro complained that
Barta had made no payment at the May 9 meeting, but
Buenrostro reassured Castro that Barta would commit to the
deal in the end. Buenrostro explained that Barta would do so
because Barta “wants to help me get back on my feet.”
C. June 12 Phone Call
Castro sent a number of emails to Barta in the month
preceding this June 12 phone call, as discussed above. Barta
replied to none of them. Castro then began calling Barta. His
8 No. 13-3208
first call on June 7 went unanswered, and he left a voicemail
for Barta. The same thing happened again when he called on
June 11. Having received no response to his emails or calls,
Castro issued an ultimatum to Barta on June 12. He wrote an
email to Barta and his co-defendants: “If I don’t hear any-
thing from Jim by the end of the day, I will assume he is no
longer interested and my guy will move on. I hope to hear
from you.” Barta still did not reply. Yet Castro did not follow
through on his ultimatum.
Instead, after sending the email Castro called Barta later
that same day. Barta’s assistant may have transferred this call
to him by mistake because Barta quickly told Castro that
“you just caught me flat footed. I’m in the middle of some-
thing else, okay?” In answer to Castro’s question of whether
Barta was “ready to move forward” with the deal Barta said,
inconclusively, “I think we’re probably ready to move. …
Yep.” This conversation lasted less than two minutes.
Hours after speaking with Barta, Castro called Buen-
rostro. This was one of over fifty contacts that Castro had
with Buenrostro in June, several of them urging Buenrostro
to elicit a response from Barta. Castro and Buenrostro set up
a meeting for June 19 in Chicago. (Chicago was also the site
of the March 21 and May 9 meetings.) But when Castro
called Buenrostro on June 18 to confirm the meeting sched-
uled for the next day, Buenrostro told him that Barta was not
going to be there. Buenrostro suggested that they travel to
Nebraska, where Barta lived, to conclude the deal. Castro
preferred to meet in Chicago, and he left a voicemail for Bar-
ta on June 18. He left two more voicemails for Barta on June
19. None of these calls were returned.
No. 13-3208 9
D. June 22 Meeting
Ultimately, Castro traveled to Nebraska on June 22 to
meet with Barta. At this final meeting Buenrostro joked with
Barta (ironically, in our view of the case) that, “It took a lot to
get you here.” But later in the meeting Barta made clear why
he was there. He explained: “At this stage in my career I
could give a damn or less about … whatever happens. … But
I’d like to see Gus do something. You know Gus, Gus has
always been a day late and a dollar short his whole damn
life.” That final meeting ended with Barta writing Castro a
Sav-Rx check for $6,500 to be used to pay the fictional county
official.
Six days later Barta was arrested. Barta was charged with
conspiracy to commit bribery under 18 U.S.C. § 371. He was
tried before a jury, which was instructed about the entrap-
ment defense. The jury found Barta guilty. After the jury
verdict Barta moved for a judgment of acquittal based on his
entrapment defense. The district court denied the motion,
and Barta has appealed.
II. Analysis
A. Entrapment
“In entrapment cases, the government must prove be-
yond a reasonable doubt that a defendant who raises a col-
orable defense of entrapment … has not in fact been en-
trapped.” United States v. Theodosopoulos, 48 F.3d 1438, 1444
(7th Cir. 1995). Whether the government has met this burden
of proof in a given case is generally a question for a jury. Id.
at 1445. When a jury decides that the government has met its
burden, then a court reviewing that decision must examine
“all the evidence in the record in the light most favorable to
the government,” while still ensuring that “the government
10 No. 13-3208
presented sufficient evidence to permit a jury to determine
beyond a reasonable doubt” that the defendant was not en-
trapped. Id.
Though this is a favorable standard of review for the
government, it does not guarantee that the government will
prevail. See, e.g., Jacobson v. United States, 503 U.S. 540 (1992)
(finding defendant was entrapped as a matter of law); Sher-
man v. United States, 356 U.S. 369 (1958) (same). The evidence
here shows entrapment beyond reasonable dispute.
“Entrapment is a defense to criminal liability when the
defendant was not predisposed to commit the charged crime
before the intervention of the government’s agents and the
government’s conduct induced him to commit it.” Mayfield,
771 F.3d at 420. The first element of an entrapment defense,
predisposition, is the “principal element.” Russell, 411 U.S. at
433. In this case the government conceded at trial that Barta
was not predisposed to conspire to commit bribery. The fo-
cus is thus on the second element, inducement. The govern-
ment was required to prove beyond a reasonable doubt that
it did not induce Barta to conspire with his co-defendants.
Mayfield, 771 F.3d at 443.
In Mayfield, a recent en banc decision surveying entrap-
ment law, we explained that inducement “means govern-
ment 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 so in re-
sponse to the government’s efforts.” Id. at 434–35. Several of
the plus factors signaling inducement that we identified in
Mayfield are present in this case. A quick review of the facts
makes this clear. The key facts are not disputed. They are
taken largely from email records and recorded conversations
No. 13-3208 11
that were collected by the government as part of its under-
cover operation.
The FBI frequently emailed and called Barta, with no re-
sponse from Barta. These were “repeated attempts at per-
suasion.” Id. at 435. The FBI invented false deadlines for Bar-
ta to commit to the deal and invented false problems for the
Los Angeles County hospital system. These were “fraudu-
lent representations.” Id. The FBI significantly sweetened
what would have already been an attractive deal to Barta
and his co-defendants. Here we have “promises of reward
beyond that inherent in the customary execution of the
crime.” Id. And the FBI pressed Barta—both directly and
through Buenrostro—to make a deal that it had reason to
believe Barta would be making mainly to benefit his less for-
tunate friend, Buenrostro. Here we have “pleas based on
need, sympathy, or friendship.” Id. The presence of all these
plus factors shows that the government induced Barta to
commit a crime, one that the government concedes he had
no predisposition to commit. That is enough to establish en-
trapment as a matter of law.
The cases the government cites are not to the contrary.
The government first takes on the “repeated attempts at per-
suasion.” It argues that Castro did not contact Barta enough,
or have a lengthy enough relationship with him, to induce
him to commit a crime. See United States v. Plowman, 700 F.3d
1052, 1059 (7th Cir. 2012) (rejecting entrapment defense
where defendant and undercover agent interacted for “a
mere five months”); Theodosopoulos, 48 F.3d at 1447 (rejecting
entrapment defense where interaction between defendant
and government “merely stretched over the course of three
months and nine meetings”). But there is no per se rule re-
12 No. 13-3208
garding the number of contacts or length of relationship it
takes to constitute inducement.
Each case, and each entrapment defense, must be judged
on its own facts. Plowman and Theodosopoulos did not adopt
mechanical rules. It is not just the number of contacts be-
tween Castro and Barta or the length of their relationship
that amounted to inducement here. It was also the frequency
of those contacts. And the fact that the emails and calls to
Barta received no responses—even when they gave fake ul-
timatums. And the fact that the contacts occurred alongside
other government conduct intended to induce Barta to go
forward with the criminal plan: the fabricated problems in
Los Angeles County’s handling of prescriptions; the sweet-
eners added to an already lucrative deal; and the efforts to
appeal to Barta based on his friendship with Buenrostro.
The government argues that these other forms of pres-
sure on Barta did not constitute plus factors signaling in-
ducement. It does so in much the same way that it argues
this case presents no “repeated attempts at persuasion,”
namely by extrapolating per se rules from precedents ad-
dressing each type of plus factor in isolation. For example,
the government summarizes United States v. Millet, 510 F.3d
668, 677 (7th Cir. 2007), by stating that promises of reward
totaling several hundred thousand dollars did not create in-
ducement in that case. That citation to Millet is accurate, so
far as it goes, but we decline to decide this case by analyzing
each plus factor as if it were a rule unto itself. We do so for
an important reason that is worth explaining.
There is little to be gained and much to be lost in trying
to formulate precise markers for when each plus factor is
present or absent. The plus factors are supposed to guide a
No. 13-3208 13
jury or judge in making a more general determination about
inducement. “Multifactor tests are common in our law but
they can be cryptic when unattached to a substantive legal
standard…. Knowing what factors to look at is useless un-
less one knows what to look for.” Mayfield, 771 F.3d at 435.
Formulating rigid rules for applying each plus factor would
risk turning the plus factors into barriers rather than aids to
good judgment.
Mayfield explains what to look for in applying the plus
factors indicating inducement: government conduct creating
a risk that Barta committed a crime he otherwise would not
have committed. Id. at 434–35. Determining whether such
government conduct occurred—whether any plus factors
were present—is a contextual inquiry that cannot be reduced
to applying a checklist of rigid rules. Determinations of in-
ducement (and predisposition) must be made by considering
all the facts and circumstances of each case. On the facts and
circumstances of this case, several plus factors were indis-
putably present, establishing government inducement that
entrapped Barta as a matter of law.
Because Barta points to much more than just government
persistence to establish entrapment, we need not consider
what degree of persistence alone would suffice to show in-
ducement as a matter of law. But make no mistake, the gov-
ernment was very persistent with Barta. We reject the gov-
ernment’s contention that the “repeated attempts at persua-
sion” here were not strong evidence of inducement. Between
the May 9 and June 22 meetings the FBI sent five emails and
placed six calls to Barta. Barta never answered any of these
emails or returned any of these calls.
14 No. 13-3208
The government offers an explanation for its persistence.
It argues that because Barta was a busy and cautious busi-
nessman, it made sense that he did not have the time or in-
clination to communicate his commitment to the conspiracy
as often or as clearly as his co-defendants signaled theirs.
This argument is premised on a misunderstanding of why
persistence counts as inducement and why inducement is an
element of entrapment.
Persistence counts as inducement because we worry that
if “additional efforts at persuasion” by the government are
required to convince someone to commit a crime, id. at 431,
then the result will be “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, 503 U.S. at
553–554. And inducement is an element of entrapment be-
cause those who accept an “ordinary opportunity to commit
the crime without additional efforts at persuasion” are justi-
fiably punished, whether predisposed or not. Mayfield, 771
F.3d at 431.
It is thus not relevant to the inducement inquiry whether
“additional efforts at persuasion” are required because the
target of the sting operation is too busy with other things,
too reverent toward the law, too cautious about the possibil-
ity of a government sting, or whatever the case may be. The
point is that the government is supposed to catch criminals,
not create them. The government’s conduct here, including
its persistence, posed an impermissible risk that Barta’s crim-
inality was created rather than caught.
No. 13-3208 15
B. Conspiracy
Why did the government go to such great lengths to get
Barta finally to make a payment to Castro? The answer can
be found in conspiracy law. “To convict a defendant of con-
spiracy, the government must prove that (1) two or more
people agreed to commit an unlawful act, and (2) the de-
fendant knowingly and intentionally joined in the agree-
ment.” United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010). A “mere association with conspirators” or
“knowledge of a conspiracy,” even when combined with
“presence during conspiratorial discussions,” is not suffi-
cient “to convict a man of conspiracy.” United States v. Garcia,
562 F.2d 411, 414 (7th Cir. 1977). The government needed ev-
idence that Barta “joined and participated in the conspirato-
rial scheme.” Id.
The government obtained that evidence on June 22 when
Barta wrote Castro a check. (That Barta wrote this check
from a company account is one indication among many that
he was not the cautious and calculating criminal mastermind
that the government made him out to be, but we put that
aside.) The government went so far because it wanted to ob-
tain such definitive evidence. But it obtained that evidence
through entrapment, as explained above. And this may be
why the government argues on appeal that Barta joined the
conspiracy on or before March 21, before any of the induce-
ment occurred. This argument is flawed because it attempts
to uphold a jury verdict on a theory never presented to the
jury.
Theories of guilt or liability not argued to the jury are
waived on appeal. See Absher v. Momence Meadows Nursing
Center, Inc., 764 F.3d 699, 711–12 (7th Cir. 2014) (collecting
16 No. 13-3208
cases); United States v. Mohamed, 759 F.3d 798, 808–09 (7th Cir.
2014). At trial, the government argued that Barta joined the
conspiracy on May 9 or June 12, and it asked the jury to re-
turn a guilty verdict on that basis. In its closing argument at
trial, the government acknowledged that Medrano and
Buenrostro had formed a conspiracy before Barta allegedly
joined, and then asserted that “Barta joins at some point lat-
er, whether it’s on the 9th or the very, very latest, that phone
call on June 12th.” Trial Tr. 1838. This closing argument—
that Barta joined the conspiracy on May 9 or June 12—
cannot be squared with the government’s new theory of the
case on appeal, that Barta joined the conspiracy on or before
March 21.
If Barta had in fact joined a conspiracy with Medrano and
Buenrostro on or before that first contact with the govern-
ment on March 21, the entrapment defense would not be
available. It was after all Buenrostro and Medrano who first
brought Barta into the discussions with Castro. The govern-
ment cannot be held responsible for those actions. But the
theory of an earlier conspiracy would have to be based on
inferences drawn from Barta’s minimal comments at the
March 21 meeting, along with statements by the alleged co-
conspirators to Castro about Barta’s supposed agreement.
That theory would have made for a very thin case against
Barta, if it could have stood at all. We need not and do not
determine here whether the government might have been
able to win its case against Barta on that theory. The problem
is that the government did not argue that theory to the jury
that convicted Barta.
The government’s theory on appeal is also inconsistent
with the testimony of its undercover agent. The agent posing
No. 13-3208 17
as Castro testified that, as of June 5, Barta “had not con-
firmed yet” and “was not on board” with the bribery
scheme. Tr. 896. These statements undermine the govern-
ment’s new theory. It is true that “Castro” later in his testi-
mony added that Barta “was always on board with the pay-
ment,” though he was not on board with “the actual services
or the way that the Sav-Rx company was going to be able to
work into the county system” until after June 5. Tr. 998. This
later testimony is hard to reconcile with a great volume of
evidence here, but the government interprets Castro’s later
testimony as indicating that Barta joined the conspiracy long
before June 5 and merely continued to work out the details
of the conspiracy after that date.
The government appears to be relying on the principle
that “a conspiracy may be actionable, even though it is con-
ditional.” See United States v. Podolsky, 798 F.2d 177, 178 (7th
Cir. 1986). On this view of the evidence, perhaps Barta might
have made a “conditional agreement” to commit bribery. Id.
But while conditional agreements can be actionable as con-
spiracies, it is also true that if the condition is a condition not
of committing the crime “but of agreeing in the first place,
there is no criminal conspiracy unless and until the condi-
tion is satisfied.” Id. On this other view of the evidence, Barta
made at most “an agreement to negotiate an agreement”
with his co-defendants, which would not have amounted to
a crime. Id.; see also United States v. Melchor-Lopez, 627 F.2d
886, 891 (9th Cir. 1980) (“The line between conspiracy and an
unexercised opportunity to join a conspiracy may be difficult
to draw, but it must be drawn where the existence of an
agreement is absent.”).
18 No. 13-3208
We doubt that a prosecutor armed only with the evidence
that existed at the end of the day on March 21 would actual-
ly press this “conditional agreement” theory by pursuing a
case against Barta. Prosecutors are busy officials with better
cases to pursue. We also doubt that a jury could be con-
vinced beyond a reasonable doubt to convict Barta based on
this “conditional agreement” theory. But given how the gov-
ernment handled the case, as opposed to how it might have
handled the case, these are questions that we need not pon-
der.
Barta’s conviction is REVERSED and the case is
REMANDED with instructions to enter a judgment of ac-
quittal.