United States v. Brandon Hayes ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2769
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon Lee Hayes
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: April 13, 2022
Filed: August 17, 2022
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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SMITH, Chief Judge.
Brandon Hayes was convicted by a jury of possession of a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g)(9), and possession of a firearm
with an obliterated serial number, in violation of 18 U.S.C. § 922(k). The district
court1 sentenced him to 125 months’ imprisonment. Hayes appeals the district court’s
refusal to give an entrapment instruction. He also raises a Brady2 claim as well as a
claim of ineffective assistance of counsel.3 We affirm.
I. Background
On February 21, 2014, George Nelson went to the Sioux City Police
Department and spoke to Detective Josiah Fenceroy.4 Nelson provided information
about drug sales in the area and agreed to assist Detective Fenceroy as a confidential
informant. On June 22, 2014, Nelson told Detective Fenceroy that Brandon Hayes
had repeatedly reached out to him about finding a buyer for a firearm that Hayes
wished to sell. Detective Fenceroy asked Special Agent Zane Dodds of the ATF to
help him investigate Nelson’s information. Agents determined that prior to June 23,
2014, Hayes had multiple prior convictions, including “several domestic abuse assault
convictions, making it unlawful for him to possess or sell a firearm.” R. Doc. 411, at
4.5
The agents planned a sting operation. Agent Dodds would operate undercover,
posing as a potential gun buyer, and attempt to purchase a firearm from Hayes. The
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
The government also appealed the issue of whether Hayes’s Nebraska
convictions for terroristic threats constituted predicate offenses under the Armed
Career Criminal Act, but it has since voluntarily dismissed its appeal.
4
Detective Fenceroy had become a Special Agent with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) by the time trial began.
5
Hayes’s prior convictions were stipulated at trial.
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officers gave Nelson instructions to get in touch with Hayes and tell him that Nelson
had found him a buyer.
Initially, Nelson tried to make contact, but Hayes did not answer his phone.
Nelson eventually got a message to Hayes about the prospective buyer—precisely
how is never made clear in the record.6 Hayes responded within a day or two of being
presented with an opportunity to sell a firearm.
On June 23, 2014, Hayes contacted Nelson and arranged with Nelson to meet
the buyer at a local McDonald’s restaurant parking lot for the transaction. Agent
Dodds, posing as the buyer, and Nelson met with Hayes at the specified location. At
the meeting, Hayes showed Agent Dodds four photographs of the shotgun that he was
offering for sale. Hayes agreed to sell the shotgun to Agent Dodds for $50. Hayes told
Agent Dodds to drive to an alley behind a nearby church to complete the transaction.
Agent Dodds did as instructed. Hayes met Agent Dodds behind the church and
handed him a Mossberg Model 500AB 12-gauge shotgun, wrapped in a blanket.7
Agent Dodds gave Hayes $50. Detective Fenceroy provided surveillance of the
transaction. The meeting, conversation, and transaction were all recorded, both audio
and video, and transcribed.
In the recorded conversation between Hayes and Agent Dodds, Hayes made
several statements about acquiring firearms for the purpose of reselling them. Hayes
mentioned that he was “getting SKSs, AK-47s, . . . everything down to little 380s, 38
6
The government disclosed in discovery that Nelson had said that he would get
a relative to contact Hayes. The disclosure did not identify the relative as Nelson’s
brother. No evidence emerged at trial conclusively showing that Nelson’s brother
made contact with Hayes.
7
The shotgun’s serial number was originally found obliterated, but it was later
raised and determined to be D78875.
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Snub Specials.” R. Doc. 299-1, at 62. He noted that “these [guns] aren’t things that
you use to try to register” but “are to be disappeared with.” Id. He specifically
highlighted that the serial “[n]umbers [had] been removed already” on the shotgun,
thereby preventing it being registered, telling Agent Dodds “you can’t register these”
and “[t]hese are not for registering.” Id. at 60. When Agent Dodds checked the
weapon, Hayes alerted him that the firing pin had been altered, with Hayes advising
Agent Dodds, “Change the firing pin, that way they don’t register the same.” Id. at
65. After discussing potential future gun purchases (as well as the possible purchase
of six to eight ounces of methamphetamine), Agent Dodds and Nelson left with the
shotgun.
Hayes was arrested following his indictment in November 2014.
In a post-arrest, pre-trial recorded jail telephone call between Hayes and his
wife, Hayes said, “Was it not better selling the gun for the money that we needed than
to turn around and use the gun to obtain the money we needed?” Id. at 109.
Hayes argued in pretrial pleadings, and at opening argument, that law
enforcement entrapped him. According to Hayes, a few days before the gun
transaction, Nelson had placed the firearm under Hayes’s porch and then called Hayes
to let him know it was there; after Nelson failed to retrieve the gun, he told Hayes to
bring it to the transaction that Nelson set up with Agent Dodds to sell it. Hayes
requested a jury instruction on entrapment, but the district court denied his request
for lack of evidence of inducement.
At trial, Hayes’s attorney cross-examined various government witnesses about
the alleged communications between Nelson and his brother and between Nelson and
Hayes in advance of the transaction. Hayes’s counsel attempted to impeach Nelson
by showing inconsistency between Nelson’s testimony and Agent Dodd’s recollection
as to how Hayes had been contacted for the sale. The jury convicted Hayes of being
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a prohibited person in possession of a firearm and of possessing a firearm with an
obliterated serial number.
II. Discussion
On appeal, Hayes makes several arguments: first, Hayes argues that the district
court erred in denying his request for an entrapment instruction; second, he raises a
Brady claim; and third, he argues ineffective assistance of counsel. We consider his
arguments in turn.
A. Entrapment
Hayes contends that his illegal gun sale only occurred because the government
entrapped him with its arranged purchase. Consequently, his first argument alleges
that the district court erred in declining to instruct the jury on entrapment as he
requested.
Although district courts exercise wide discretion in formulating jury
instructions, when the refusal of a proffered instruction simultaneously denies a legal
defense, the correct standard of review is de novo. United States v. Young, 613 F.3d
735, 744 (8th Cir. 2010). Accordingly, we review de novo a district court’s denial of
a proffered instruction on entrapment. United States v. Strubberg, 929 F.3d 969, 976
(8th Cir. 2019).
Because it is an affirmative defense, entrapment is a question of fact and
generally decided by a jury. However, a defendant is entitled to an
entrapment instruction only where there is sufficient evidence from
which a reasonable jury could find entrapment. A valid entrapment
defense has 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.
United States v. Young, 613 F.3d 735, 746 (8th Cir. 2010) (cleaned up).
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Hayes’s argument for an entrapment instruction can only succeed if the record
shows that the government induced his illegal conduct. “Inducement exists when the
government ‘implanted the criminal design’ in the defendant’s mind.” Id. at 747(quoting United States v. Eldeeb, 20 F.3d 841, 843 (8th Cir. 1994)). “Inducement
occurs when the government creates a substantial risk that an otherwise law abiding
person will commit a criminal offense.” United States v. Harriman, 970 F.3d 1048,
1057 (8th Cir. 2020) (internal quotation marks omitted). “Inducement may include
‘pressure, assurances that a person is not doing anything wrong, persuasion,
fraudulent representations, threats, coercive tactics, harassment, promises of reward,
or pleas based on need, sympathy, or friendship.’” Id. (quoting United States v.
Clarett, 907 F.3d 1100, 1102 (8th Cir. 2018)).
The government’s arranged, undercover purchase of the firearm standing alone
is not inducement. “[I]t is well settled that the government may use artifice,
stratagem, and undercover agents in its pursuit of criminals.” Id. (internal quotation
marks omitted). “Where the government simply offers a defendant an opportunity to
commit a crime, and the defendant promptly avails himself of the criminal
opportunity, the defendant is not entitled to an instruction on entrapment.” United
States v. Combs, 827 F.3d 790, 796 (8th Cir. 2016).
If Hayes could show inducement, then the government must counter that proof
with evidence of Hayes’s predisposition to sell the weapon. “Once government
inducement is established by the defendant, the burden shifts to the government to
demonstrate beyond a reasonable doubt that the defendant was predisposed to commit
the crime.” Young, 613 F.3d at 747. “The predisposition element focuses upon
whether the defendant was an unwary innocent or, instead, an unwary criminal who
readily availed himself of the opportunity to perpetrate the crime.” Id. (internal
quotation marks omitted).
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On this record, we conclude that Hayes failed to establish that the government
induced him to sell the firearm. The district court did not err in declining to accept
Hayes’s proffered entrapment defense. Hayes blames Nelson for his possession of the
firearm: Hayes says that Nelson placed the firearm beneath Hayes’s house and that
he only took possession of it to make certain that his children would not get a hold
of it. He asserts that “[i]t is unknown if Nelson set up the transaction with [Hayes],
directing him to sell the firearm on Nelson’s behalf.” Appellee’s/Cross-Appellant’s
Br. at 20. Hayes further contends that the government cannot satisfy its burden to
show predisposition because “there is no information” about Hayes’s conduct before
the transaction and that all information is “reliant” on Nelson who “set all of this up”
and “was also a known con-artist.” Id. at 20–21. According to Hayes, “[t]he jury
should have been given the ability to determine that Nelson was a liar and
orchestrated the entire transaction,” which required the court to instruct on
entrapment. Id. at 21.
The factual record establishes law enforcement and its informant merely
provided Hayes an opportunity to make a sale, which revealed Hayes’s unlawful
possession of the firearm that he sold to Agent Dodds. While authorities did make use
of artifice and stratagem in arranging and executing the transaction, there is no
evidence that they were responsible for inducing Hayes’s possession of the firearm.
See Harriman, 970 F.3d at 1057. There is no evidence that Nelson, Detective
Fenceroy, or Agent Dodds used “pressure, assurances that a person is not doing
anything wrong, persuasion, fraudulent representations, threats, coercive tactics,
harassment, promises of reward, or pleas based on need, sympathy, or friendship,” to
get Hayes either to possess or to attempt to sell the firearm. Harriman, 970 F.3d at
1057 (internal quotation marks omitted).
As there is no evidence of inducement, the court was not required to give an
entrapment instruction. Our inquiry need not proceed further into the court’s
declination of an entrapment instruction. See Young, 613 F.3d at 746.
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B. Brady Claim
Next, Hayes argues that the government committed a Brady violation by
allegedly failing to disclose information regarding a potential witness, Nelson’s
brother, because the discovery file that the government provided did not include the
name of Nelson’s brother.
As Hayes failed to raise this specific claim at trial or in his motion for a new
trial, we review for plain error. United States v. Horton, 756 F.3d 569, 575 (8th Cir.
2014).
To obtain relief under a plain-error standard of review, the party seeking
relief must show that [(1)] there was an error, [(2)] the error is clear or
obvious under current law, [(3)] the error affected the party’s substantial
rights, and [(4)] the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
Discovery material provided by the government indicated that Agent Dodds
instructed Nelson, the informant, to contact a relative to have the relative to tell Hayes
to contact Nelson. The material did not disclose either the relative’s name or the fact
that the relative in question was Nelson’s brother. Nelson testified at trial that his
brother was not involved in arranging the transaction. See R. Doc. 325, at 106,
128–29. Detective Fenceroy, however, testified to his understanding that Nelson had
set up the transaction through his brother. Id. at 56 (“Q. So . . . Nelson’s brother
communicated with . . . Hayes for this meeting at the McDonald’s? A. Yes.”).
Logically, had Nelson’s brother actually gotten in touch with Hayes, then Hayes
would have already been aware of the contact and possibly who it was. The
government’s failure to disclose the person’s specific name and relation to Nelson did
nothing to hinder Hayes’s defense. Even assuming that this was an error, it is by no
means “clear or obvious under current law.” Poitra, 648 F.3d at 887.
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There are three components of a true Brady violation: [(1)] The evidence
at issue must be favorable to the accused, either [(a)] because it is
exculpatory, or [(b)] because it is impeaching; [(2)] that evidence must
have been suppressed by the State, either [(a)] willfully or [(b)]
inadvertently; and [(3)] prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). “To establish a Brady violation,
the defendant must show the government suppressed evidence that was both
favorable to the defense and material to the issue of guilt or punishment.” United
States v. Williams, 577 F.3d 878, 882 (8th Cir. 2009) (quoting United States v.
Farmer, 312 F.3d 933, 936 (8th Cir. 2002)). Such evidence is “material” only if there
is a “reasonable probability” that, had it been disclosed, “the result of the proceeding
would have been different.” Strickler, 527 U.S. at 280 (internal quotation marks
omitted). An allegation based “solely . . . on conjecture and speculation, cannot
support a [claim of a] Brady violation.” Horton, 756 F.3d at 575.
Hayes argues that, had the government disclosed Nelson’s brother’s
involvement in arranging the gun sale, Hayes could have called him to the stand to
impeach Nelson’s credibility due to the conflict between Nelson’s testimony and
Agent Fenceroy’s testimony. See Appellee’s/Cross-Appellant’s Br. at 24 (“[His
brother’s] testimony would have resulted in confirmation of whether Nelson lied or
the law enforcement officers lied.”). The nondisclosure of Nelson’s relative’s name,
at most, provides impeaching evidence on an immaterial issue. Even if Nelson’s
brother testified and his testimony was used to impeached either the agent or Nelson,
it would alter none of the incriminating evidence establishing Hayes’s illegal
possession of a firearm with an obliterated serial number. Hayes’s assertions are too
speculative to support a Brady claim. The jury heard the testimony and was thus
aware of the conflicting recollections of Agent Dodds and Nelson about the events
leading to the sale. Furthermore, considering the weight of evidence against Hayes
on the two counts of conviction, the failure to disclose the identity of Nelson’s
brother did not prejudice him. While it may have been arguably “favorable to the
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defense” to have had the jury hear from Nelson’s brother, such testimony would by
no means have been “material to the issue of guilt,” which was plain with or without
a marginally amplified attack on the credibility of the police and an informant.
Williams, 577 F.3d at 882 (internal quotation marks omitted). Therefore, as Hayes has
not demonstrated a clear or obvious error under current law nor has he shown
prejudice, his claim of a Brady violation fails plain-error review.
C. Ineffective Assistance of Counsel
Lastly, Hayes argues that his trial counsel was ineffective. “We normally defer
ineffective-assistance claims to 28 U.S.C. § 2255 proceedings.” United States v.
Oliver, 950 F.3d 556, 566 (8th Cir. 2020). “We review ineffective-assistance claims
on direct appeal only ‘where the record has been fully developed, where not to act
would amount to a plain miscarriage of justice, or where counsel’s error is readily
apparent.’” Id. (quoting United States v. Thompson, 690 F.3d 977, 992 (8th Cir.
2012)). In short, we only review such claims on direct appeal in “exceptional cases.”
Id. (quoting United States v. Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011)).
This case is not such an exception. We decline to review Hayes’s ineffective
assistance claim on direct appeal.
III. Conclusion
Accordingly, we affirm the district court.
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