United States v. Pitt

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
10-1-1999
United States v Pitt
Precedential or Non-Precedential:
Docket 98-7383, 98-7497
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Recommended Citation
"United States v Pitt" (1999). 1999 Decisions. Paper 270.
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Filed October 1, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 98-7383 and 98-7497
UNITED STATES OF AMERICA,
v.
RICHARD LYNN PITT,
Appellant in No. 98-7383
UNITED STATES OF AMERICA,
v.
WILLIAM MICHAEL STRUBE,
also known as Mike Strube,
Appellant in No. 98-7497
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Judge: Honorable Sylvia H. Rambo
(D.C. Crim. No. 97-00108)
Argued May 26, 1999
BEFORE: GREENBERG and ALITO, Circuit Judges,
and DOWD,* District Judge
(Filed: October 1, 1999)
_________________________________________________________________
* Honorable David D. Dowd, Jr., Senior Judge of the United States
District Court for the Northern District of Ohio, sitting by designation.
Bryan S. Walk (argued)
112 Walnut Street
Harrisburg, PA 17101
Attorney for Appellant
Richard L. Pitt
Benjamin S. Waxman (argued)
William R. Tunkey
Robbins, Tunkey, Ross, Amsel
Raben & Waxman
2250 Southwest Third Avenue
4th Floor
Miami, FL 33129
Attorneys for Appellant
William Michael Strube
David M. Barasch
United States Attorney
Eric Pfisterer (argued)
Assistant United States Attorney
Theodore B. Smith, III (argued)
Assistant United States Attorney
Federal Building
P.O. Box 11754
Harrisburg, PA 17108-1754
Attorneys for Appellee
OPINION OF THE COURT
DOWD, District Judge.
I. INTRODUCTION
The appellants, Richard Pitt and William Strube, stand
convicted of the primary charge of engaging in a 1994
conspiracy to possess with intent to distribute 486
kilograms of cocaine. Richard Pitt was, at the time of the
conspiracy, a documented confidential informant for the
2
United States Customs Service. Pitt and Strube defended
their conduct with respect to the 486 kilograms of cocaine
as a necessary predicate to obtaining, in a reverse sting
operation, an enormous quantity of cocaine from the Cali
Cartel in Colombia. In preparation, Pitt and Strube
purchased the Ridgely Warfield, a sea-going vessel which
was to be used to transport the Cali cocaine. Thus the
primary defense advanced by Pitt and Strube was that of
public authority, recognized by Fed. R. Crim. P. 12.3. The
district court's denial of a jury instruction based on the
defense of public authority is the primary error advanced in
the appeals of Pitt and Strube. We affirm the convictions
and sentences.
II. FACTUAL AND PROCEDURAL BACKGROUND
Richard Pitt, a pilot and a smuggler by trade, enlisted as
a documented confidential informant with the U.S.
Customs Service in 1992 after his release from a Mexican
prison based on a sentence arising from flying a load of
cocaine into Mexico from Colombia. In 1993, Pitt brokered
a deal between an undercover Customs agent and a group
of Mexicans to buy $1.3 million worth of cocaine. The
reverse sting was successful and $1.3 million was seized,
with Pitt receiving $350,000 for his efforts.
While still working with U.S. Customs Special Agents
Roger Bower and Chuck Mohle, Pitt conceived a plan to
entice the Cali Cartel to hire him to transport a large
quantity of cocaine by an ocean-going vessel. Pitt enlisted
Strube in that plan and they acquired the Ridgely Warfield
for that avowed purpose. Agents Bower and Mohle were
advised on the Pitt-Strube plan. However, Pitt and Strube
did not advise the Customs agents that, in the summer of
1994, they were receiving and transporting large shipments
of cocaine from Los Angeles to New York. The first shipment
of 150 kilograms took place in mid-July; the second
shipment of 150 kilograms took place in early August of
1994. A California State police officer intercepted the third
shipment of 186 kilograms destined for New York in a
vehicle driven by Pitt. Information about the third shipment
was obtained by an on-going Title III interception; however,
the stop of vehicle was made for the ostensible reason of a
3
traffic violation so as avoid any revelation about the Title III
operation. The traffic stop led to the seizure of the 186
kilograms in the third shipment.
During the government's case in chief, persuasive
960testimony was produced which demonstrated the
culpability of Pitt and Strube relating to the first two
shipments of cocaine to New York, including the testimony
of Pitt's relatives who had been involved in the operation.
The recipient of the cocaine in New York, Gloria Ramirez,
also testified and accounted for the large sums of cash that
were subsequently delivered to Pitt and Strube in payment
for the earlier shipments.
The government produced Customs Agents Bower and
Mohle who offered extensive testimony about their
relationship with Pitt as the documented confidential
informant for Customs. They conceded that Pitt had
outlined his plan to persuade the Cali Cartel to use the sea-
going vessel Ridgely Warfield, to transport cocaine to the
United States for seizure. However, they denied any
advance information about the Pitt-Strube plan to ship the
468 kilograms of cocaine to New York from Los Angeles.
They also insisted that Pitt had been advised by his
separate contacts that he was not authorized to engage in
criminal conduct as a part of his plan. Pitt also testified at
length about his contact with Bower and Mohle and
suggested that they had agreed inferentially with criminal
conduct to bring about the anticipated large shipment of
cocaine by use of sea-going vessel.
In ruling on the Pitt motion for a new trial, the district
court summarized his testimony as follows:
. . . Defendant himself admitted that no one had told
him he could sell cocaine for profit. (Trial Transcript
("Tr.") at 1218.) He also acknowledged that he knew it
was against U.S. Customs' policy to let drugs "walk"
and, therefore, could not get official approval for his
operation. (Tr. at 869.) In fact, he admitted hesitating
in carrying out his plan once he was requested by the
Cali Cartel to make three test runs because he knew it
was wrong. (Tr. at 1201.) Further, he did not tell
agents Bowers and Mohle the full extent of his plan
4
until after he was arrested. (Tr. at 1181.) Additionally,
there was testimony from the agents that they never
authorized Defendant to distribute cocaine and that
Defendant had been told in the past this could not be
done. . . .
(Supplemental Appendix ("S.A.") at 21).
III. DISCUSSION
A. THE DEFENSE OF PUBLIC AUTHORITY
Defendants Pitt and Strube contend that prejudicial error
resulted from the district court's refusal to give a jury
instruction based on their defense of public authority.
Defendants filed a Notice of Intent to Present the Defense of
Public Authority pursuant to Fed. R. Crim. P. 12.3 and
requested that the district court issue a jury instruction for
that defense. The district court declined reasoning that,
since Pitt did not have actual authority to empower Strube
to move cocaine, Strube was not entitled to an instruction
on that defense. Instead, the district court instructed the
jury on entrapment by estoppel for Pitt and mistake of fact
for Strube.1
The district court's refusal to give a requested jury
instruction is reviewed for an abuse of discretion. United
States v. Gross, 961 F.2d 1097, 1101 (3d Cir.), cert. denied,
506 U.S. 965 (1992). In determining whether the district
court abused its discretion, this Court evaluates whether
the proffered instruction was legally correct, whether or not
it was substantially covered by other instructions, and
whether its omission prejudiced the defendant. Id. However,
inasmuch as we review a "court's refusal to instruct the
jury on a defense theory de novo," United States v. Stewart,
___ F.3d ___, 1999 WL 499881, at *10 (3d Cir. July 16,
1999), it would have been an abuse of discretion if the
defendants were entitled to a public authority charge and
the court refused to give it.
The defense of "public authority" is based in common
_________________________________________________________________
1. Mistake of fact is not a complete defense, but can negate the intent
element necessary for a conviction.
5
law. Under the defense, illegal actions committed by a
public official or an officer of the law in the course of his
duties were not crimes.2 Originally, this defense only
applied to cases where the agency possessed the authority
to permit the actor to engage in the otherwise illegal
conduct and the actor was given permission. Published
decisions pertaining to the defense of actual public
authority are sparse, possibly because reliance on the
defense is rare.
Recognition of the defense of "apparent" public authority
appears in United States v. Barker, 546 F.2d 940 (D.C. Cir.
1976), a case related to the infamous Watergate debacle. A
divided court of the D.C. Circuit decided that the defense
should be extended to an individual who acted at the
behest of a government official and in reasonable reliance
on that official's authority to permit the behavior. Id. at
948-49. Judge Wilkey, writing for the majority, cited two
requirements a defendant must show to excuse his
conduct: 1) there were facts justifying defendant's
reasonable reliance on the official; and 2) there is a legal
theory on which to base a reasonable belief that the official
possessed the authority to permit the conduct. Id. at 949.
This has become known as the defense of "apparent public
authority." This defense differs from actual public authority
because the defendant is not required to establish that the
government official had the authority to sanction the illegal
activity. Instead, the defendant asserts the belief that his
action was condoned by the agency which he believed had
authorized him to engage in the criminal conduct.
After Barker, the number of cases where the defendant
claimed that he was acting under actual or apparent public
authority began to increase.3 As a consequence, Congress
_________________________________________________________________
2. Often the cases involved police officers and their conduct in the
course
of their duties.
3. Many times, defendants claimed they were acting on the authority of
the Central Intelligence Agency ("CIA"). See, United States v. Anderson,
872 F.2d 1508 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United
States v. Rosenthal, 793 F.2d 1214 (11th Cir.), modified on other
grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919(1987); United States v. Smith, 780 F.2d 1102 (4th Cir. 1985); United
6
became concerned with the increasing number of
defendants attempting to utilize this common law defense,
the problems of surprise the defense created at trial and
the subsequent disclosures of confidential information
which the defense often required.4 Therefore, Congress
proposed an addition to the Federal Rules of Criminal
Procedure requiring a defendant to make a pre-trial
disclosure of his intention to use the defense. The proposed
rule was added to the "Omnibus Intelligence and Security
Improvements Act" (H.R. 1082, 1985) and was entitled
"Title II --Intelligence or Law Enforcement Defense Pretrial
Notification Act."
When the Omnibus Intelligence and Security
Improvements Act was not enacted into law, the Justice
Department submitted the proposed rule to the Criminal
Rules Advisory Committee. The Committee prepared and
circulated a proposed rule in September of 1986 requesting
comment, proposed alterations, and possible concerns.
Before the proposed rule emerged from the rule-making
process, it was adopted as part of the Anti-Drug Abuse Act
of 1988 (Pub. L. No. 100-690, S 6483, 104 Stat. 4181).
Since Congress short-circuited the rule-making process
in adding a Rule 12.3 to the Federal Rules of Criminal
Procedure, no Advisory Committee Note ("Note")
accompanies the rule; however, a proposed Note was
submitted in connection with the Criminal Rules Advisory
_________________________________________________________________
States v. Wilson, 732 F.2d 404 (5th Cir.), cert. denied, 469 U.S. 1099(1984); United States v. Wilson, 750 F.2d 7 (2d Cir. 1984), cert. denied,
479 U.S. 839 (1986); United States v. Wilson, 721 F.2d 967 (4th Cir.
1983); United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980). As a
result, the defense of actual or apparent public authority was often
termed the "CIA Defense."
4. In fact, many of the pre-Rule 12.3 public authority cases involve
defendants/appellants claiming error in both the denial of public
authority jury instructions and in excluding evidence supporting their
public authority defense under the Classified Information and
Procedures Act ("CIPA"). CIPA was enacted to reduce the amount of
classified information divulged by requiring pre-trial hearings to
determine the relevance of the evidence.
7
Committee September 1986 proposal.5 Courts have
subsequently looked to that proposed but unadopted Note
for guidance as to the scope and application of Rule 12.3.
That Note cites two cases as examples of what the Rule
was intended to cover, United States v. Sampol, 636 F.2d
621 (D.C. Cir. 1980) and United States v. Wilson, 721 F.2d
967 (4th Cir. 1983). In Sampol, defendants convicted of
murder for their role in an assassination appealed the
court's refusal to allow their affirmative defense that the
CIA authorized the killing. In Wilson, a former intelligence
agent was convicted of selling weapons to Libya. On appeal,
Wilson claimed he had acted on the good faith belief that
his actions were sanctioned by the CIA. The court refused
to overturn Wilson's conviction because he had been
permitted to introduce evidence of an undercover defense
and the jury had rejected it.6
Once Rule 12.3 was enacted, the public authority defense
required two components: 1) a procedural component,
namely, compliance with the Rule; and 2) a substantive
common law component. Rule 12.3 itself is entirely
procedural in nature. It is similar to Rules 12.1 and 12.2
which require defendants to give notice for defenses of alibi
and insanity. Rule 12.3(a)(1) requires that the defendant
file, at the time of pre-trial motions, a notice of intent to
use the defense of actual or believed public authority. Rule
12.3(a)(2) also includes disclosure requirements pertaining
to witnesses and other evidence. Rule 12.3 does not,
however, include a discussion of substantive requirements
for the defense. Therefore, the Rule does not alter the
common law requirements.
The language of Rule 12.3 enumerates two defenses: 1)
actual public authority; and 2) believed or apparent public
_________________________________________________________________
5. The Proposal is reprinted at 111 F.R.D. 489, 499.
6. Wilson was unsuccessful in raising this defense in two subsequent
trials as well. United States v. Wilson, 732 F.2d 404 (5th Cir. 1984)
(determining that refusal to permit "CIA Defense" and good faith defense
for his selling of plastic explosives to Libya was not error); United
States
v. Wilson, 750 F.2d 7 (2d Cir. 1984) (holding that refusal to allow "CIA
Defense" for charges of attempted murder and witness tampering was
not error).
8
authority. As already discussed, actual public authority
involves a defendant who was authorized to commit the
otherwise illegal act, whereas apparent public authority
occurs when the defendant was not actually permitted to
engage in the criminal activity but believed he was. Just as
for actual public authority, the enactment of Rule 12.3 did
not alter the defense of apparent public authority. 7
Therefore, jurisdictions where actual authority was required
were not altered.
This Court approves and will follow the holding in United
States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994),
which limits the use of the defense of public authority to
those situations where the government agent in fact had
the authority to empower the defendant to perform the acts
in question. As a corollary, Baptista-Rodriguez holds that
where the government agent had no such power, the
defendant may not rest on the "public authority" defense.
In this case, the unrebutted testimony was that neither
Bowers nor Mohle had the authority to empower Pitt to
engage in acts alleged and proven with respect to the
charged conspiracy. To the contrary, the testimony was to
the effect that only the Director of Customs and the
Director of the Drug Enforcement Agency, in conjunction
with the approval of the United States Attorney for the
subject district, could sanction and authorize the type of
conduct in which Pitt and Strube engaged with respect to
the charged 468 kilograms of cocaine.
The district court did charge the jury, as to Pitt only, with
respect to the defense of entrapment by estoppel. This
defense arises when a government official tells a defendant
that certain conduct is legal and the defendant commits
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7. United States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995), aff'd
sub nom United States v. Johnson, 139 F.3d 1359 (11th Cir.), reh'g
denied, 149 F.3d 1197 (11th Cir. 1998) (determining that authority relied
upon must be real and not apparent), cert. denied, ___ U.S. ___, 119
S.Ct. 2365 (1999); United States v. Rosenthal , 793 F.2d 1214, 1235-37
(11th Cir. 1986) (stating that defendant could only be exonerated if he
relied on real and not apparent authority); United States v. Duggan, 743
F.2d 59, 83-84 (2d Cir. 1984) (declining to adopt apparent authority
from Barker and instead requiring actual authority).
9
what otherwise would be a crime in reasonable reliance on
the official representation. See Baptista-Rodriguez, 17 F.3d
at 1368 n.18 for a comparative analysis of the defenses of
innocent intent, public authority, apparent public authority
and entrapment by estoppel.
In this case, while there was no testimony by Pitt that he
was told by either Bowers or Mohle that he could engage in
the indicted activity, Pitt did offer testimony to the effect
that he believed he had the implicit authority to engage in
whatever criminal activity was necessary in order to entice
the Carli Cartel to eventually use his ship to transport the
large quantity of cocaine to the United States for seizure
and thereby bring about the arrest of persons who would
arrive to take control of the shipment or parts of the
shipment.8
We find no error in the decision of the district court in
refusing to give the public authority defense instruction
and we find that the entrapment by estoppel instruction
was the proper instruction as to Pitt. However, Strube, who
had no contact with Bowers or Mohle prior to his
involvement with the shipments of the cocaine from Los
Angeles to New York was not entitled to a similar
instruction. The assurances of Pitt, his partner in crime, do
not rise to the level of instructions, encouragement, or
advice from a government official.
B. DENIAL OF PITT'S MOTION FOR ACQUITTAL BASED
ON THE DEFENSE OF ENTRAPMENT BY ESTOPPEL
Pitt argues that it was error for the district court to deny
his motion for acquittal because the prosecution failed to
rebut his defense of entrapment by estoppel. Against that
argument the Court is required to view the evidence and
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8. The requirement of pre-trial notice as to a defense based on
government authority, alibi, and insanity entitles the government to be
prepared for such a defense. Curiously, we find no requirement that a
defense based on entrapment by estoppel be the subject of similar pre-
trial notice and accompanying requirements. However, from a conceptual
standpoint, we see little, if any, difference between the defense of
apparent public authority and entrapment by estoppel. Since the issue
of notice prior to use of the entrapment by estoppel defense has not been
briefed, we see no need to rule definitively on that issue at this time.
10
inferences logically deduced therefrom in the light most
favorable to the jury verdict. United States v. Pungitore, 910
F.2d 1084, 1128-29 (3d Cir. 1990), cert. denied, 500 U.S.
915 (1991).
United States v. Brebner, 951 F.2d 1017, 1025 (9th Cir.
1991) teaches that the entrapment by estoppel defense
rests not on the defendant's state of mind, but on a due
process theory that shifts the focus from the conduct of the
defendant to the conduct of the government. Pitt argues
that the facts, as developed in a light most favorable to the
government, were not sufficient to contradict his defense of
entrapment by estoppel. He points to the fact that he was
under contract with Customs to work as a confidential
informant; that the Customs agents were aware that Pitt
would work on cases without a specific contract; and that
they knew of his plan to import approximately 16,000 kilos
of cocaine into the United States from Colombia.
Based on that combination of facts, Pitt argues that it
could be inferred that he was authorized to engage in the
preliminary transactions, i.e., the shipment of the 468
kilograms of cocaine from Los Angeles to New York City, to
gain the confidence of the Colombian cartel. Such an
argument justified the district court's submission of the
defense of entrapment by estoppel, but is insufficient to
support an acquittal as a matter of law.
The defense of entrapment by estoppel turns on
credibility. The jurors apparently believed Customs Agents
Bowers and Mohle when they testified that they did not
know of Pitt's plan to distribute the three shipments of
cocaine from Los Angeles to New York, nor had they
authorized such conduct. Moreover, as indicated in the
district court's summary cited earlier, Pitt clearly testified
that no one authorized him directly or indirectly to commit
the crimes for which he stands convicted.
The district court properly denied Pitt's post-verdict
motion for an acquittal.
C. FAILURE TO DISMISS THE INDICTMENT AGAINST
STRUBE FOR ALLEGED OUTRAGEOUS CONDUCT BY THE
GOVERNMENT
Defendant Strube argues on appeal that, due to
outrageous conduct by the government, it was error for the
11
district court to refuse to dismiss the indictment against
him. Strube, unlike Pitt, did not testify. On appeal, through
counsel, he appears to concede that he engaged in the
charged conspiracy, but argues that from its inception
through its planning, staffing, funding, implementation and
direction, it was a creature of Richard Pitt, who was himself
a creature of the United States Customs Service. While
acknowledging the fact of a dispute between Pitt and the
Customs agents as to whether they had authorized Pitt to
move loads of drugs across the country in aid of the plan
to use the Ridgely Warfield ship to transport the cocaine
from Colombia to the United States, Strube argues that it
is not in dispute that Pitt told his recruits to move loads of
cocaine across the country, that Pitt told them that
Customs had specifically authorized them to do this, and
that the recruits, including Strube, had every reason to
believe what Pitt told them and to do as instructed.
Strube advances the proposition that the government
action by Bowers and Mohle in overseeing the Pitt operation
with the goal of eventual use of the Ridgely Warfield to
make a huge drug bust aimed at discouraging the
continued importation of cocaine by a Colombian cartel,
should require under due process principles a dismissal of
his prosecution. To achieve that desired result, Strube
alleges that the conduct of Bowers and Mohle in their
oversight of Pitt constituted "outrageous government
conduct."
The government argues that Strube failed to raise this
defense at trial and, therefore, it should be considered
waived and Strube should be precluded from raising the
issue on appeal.
The defense of outrageous government conduct examines
whether a defendant's due process rights have been
violated because the government created the crime for the
sole purpose of obtaining a conviction. It emerged from
dicta in United States v. Russell, 411 U.S. 423 (1973),
where the Court determined that the entrapment defense
was not available to the defendant because he was
predisposed to committing the crime, but went on to state
that some day there may be a due process defense based
upon outrageous government conduct. Id. at 431. Then, in
12
United States v. Hampton, 425 U.S. 484 (1976), the Court
upheld Hampton's conviction, thereby limiting the defense.9
Although the conviction was upheld by a majority of five,
the concurrence of Justices Powell and Blackmun
demonstrated their hesitancy to foreclose the existence of a
due process challenge.
United States v. Nunez-Rios, 622 F.2d 1093 (2d Cir. 1980)
teaches that the defense of outrageous government conduct
is based on an alleged defect in the institution of the
prosecution itself and, as a consequence, is covered by the
provisions of Fed. R. Crim. P. 12(b) which requires that a
defendant raise in a pretrial motion: (1) defenses and
objections based on defects in the institution of the
prosecution; or (2) defenses and objections based on defects
in the indictment or information. Since Nunez-Rios did not
raise the issue of outrageous government conduct prior to
trial, the court held he had waived the right to assert the
defense on appeal. Id. at 1099. It is well established that
the issue of outrageous government conduct is for the
court, and not the jury, to resolve. Id. at 1098. See also
United States v. Nolan-Cooper, 155 F.3d 221, 234 (3d Cir.
1998). As a consequence, the necessity for the pretrial
motion to dismiss is obvious unless the evidence
supporting the claim of outrageous government conduct is
not known to the defendant prior to trial.
This Circuit addressed failure to plead the defense in
United States v. Gonzales, 927 F.2d 139 (3d Cir. 1991). In
that case, a drug transaction was initiated by an informant.
A government agent was the seller and the defendant was
a buyer. After his conviction, defendant argued that the
contingency fee arrangement between the informant and
the government constituted outrageous governmental
conduct. The Court examined the procedural requirement
outlined in Nunez-Rios, supra, but declined to apply a
procedural bar under the facts of that case because defense
counsel did not receive relevant information until the eve of
_________________________________________________________________
9. In Hampton, a government informant supplied the defendant with the
heroin he sold to an undercover government agent. The defendant stated
that the government's conduct of being both the supplier and buyer
violated his due process rights.
13
trial, making compliance with the procedural requirement
virtually impossible. The Court then evaluated the case
based upon a plain error standard and determined that the
conduct was not outrageous.10
Strube did not raise the defense of outrageous
government conduct in a pretrial motion, and he has
provided no good explanation for failing to do so. Unlike the
defendant in Gonzales, Strube did not discover facts about
government involvement shortly before his trial. Rather,
Strube's main defense at trial was that he was authorized
by a government agent to commit his illegal actions.
Therefore, Strube was always aware of the facts upon which
he now claims this defense. Since Strube offers no reason
for his failure to raise the defense at trial, the Court need
not make an exception to his waiver. See, United States v.
Coppola, 526 F.2d 764, 773 (10th Cir. 1975) (refusing to
grant an exception to waiver on appeal because the
defendant had two years to raise the defense, he failed to
demonstrate good cause for non-compliance with Rule
12(b), and he failed to show any prejudice from the waiver).
Even if Strube had properly raised this defense, it would
fail. Strube claims his case parallels United States v. Twigg,
588 F.2d 373 (3d Cir. 1978), because the government
"created, staffed, directed and implemented a criminal
enterprise which would not have otherwise existed."
(Strube's Op. Br. at 36). In Twigg, the Court addressed
charges of drug production where the government provided
chemical components, glassware, expertise and a location.
Without that assistance, the defendants would not have
had the ability to produce the drug.11 Strube argues that,
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10. The informant in Gonzales had a contingency fee arrangement with
the government that was not fully disclosed until the Friday before a
Monday trial. The informant and the government had set up a "reverse
sting" and the defendant was convicted of drug charges.
11. Strube fails to recognize that, since Twigg, this Court has used
extreme caution in finding due process violations in undercover settings.
United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir.), cert. denied, 519
U.S. 1047 (1996). See also, United States v. Nolan-Cooper, 155 F.3d 221,
229-30 (3d Cir. 1998) (continuing to recognize the existence of the
defense but observing the hesitancy of the judiciary to uphold due
14
as in Twigg, the government created the crime through its
agents, Pitt, Bowers and Mohle.
Assuming, arguendo, that Pitt was an agent of Customs
acting with its authority, Strube's defense would still fail.
There are significant factual differences between the cases
Strube cites and his case. In previous cases, courts have
determined that, in order for the claim of outrageous
government conduct to succeed, a government agent has to
initiate the criminal conduct with the goal of obtaining a
conviction and must draw the defendant into the illegal
activity to bring about that goal. See, United States v. West,
511 F.2d 1083 (3d Cir. 1975) (reversing conviction because
agent contacted defendant, who had no criminal record,
and supplied him with drugs defendant sold to another
agent);12 Twigg, supra (reversing conviction because
informant contacted defendants and initiated drug
production to get them convicted); Nolan-Cooper, supra(emphasizing defendant's ongoing involvement in criminal
activity before agent approached her); United States v.
Gardner, 658 F. Supp. 1573 (W.D. Pa. 1987) (reversing
conviction because informant pursued defendant even after
defendant refused to find cocaine for him and tried to give
informant's money back).13 In this case, various Colombian
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process violation claims); United States v. Gambino, 788 F.2d 938, 945
n.6 (3d Cir.), cert. denied, 479 U.S. 825 (1986) (same). See also, United
States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106(1982); United States v. Beverly, 723 F.2d 11 (3d Cir. 1983); United
States v. DeRewal, 10 F.3d 100 (3d Cir. 1993), cert. denied, 511 U.S.
1033 (1994) (all calling Twigg into doubt).
12. Called into doubt by United States v. Beverly, 723 F.2d 11,12 (3d Cir.
1983).
13. See also, Greene v. United States, 454 F.2d 783 (9th Cir. 1971)
(reversing bootleggers' convictions because they had ceased criminal
activity until an agent contacted them and provided supplies for
production); United States v. Batres-Santolino, 521 F. Supp. 744 (N.D.
Cal. 1981) (reversing conviction because informant induced defendants
into cocaine deal so his DEA friends could arrest them; defendants
lacked prior criminal involvement and wanted to back out); United States
v. Mosely, 965 F.2d 906 (10th Cir. 1992) (upholding conviction even
though seller was a government agent); United States v. Pedraza, 27 F.3d
1515 (10th Cir.) (upholding the conviction because defendants originally
contacted the undercover agent rather than being induced into criminal
activity), cert. denied, 513 U.S. 941 (1994).
15
drug cartels were the target for criminal prosecution. So
while this operation was intended to secure a conviction, it
was not the conviction of Strube. The defense of outrageous
government conduct is not applicable.
Even if the operation had been orchestrated to convict
Strube, the conduct would still not rise to the level of
violating Strube's right to due process. To meet that
standard, the challenged conduct must be shocking,
outrageous, and clearly intolerable. Mosely, 965 F.2d at
910. It must violate our sense of fundamental fairness or
shock the universal sense of justice. Russell, 411 U.S. at
432. There is nothing so shocking here.
In sum, Strube waived the issue of outrageous
government conduct by failing to move to dismiss prior to
trial. In any event, the claim of outrageous government
conduct is totally lacking in merit.
D. THE POST-CONVICTION CHALLENGE TO THE LACK
OF VENUE
Both Pitt and Strube argue that the government failed to
meet its burden of proving the venue of the alleged offenses.
Neither defendant challenged the absence of venue until
after their convictions. The government asserts that the
proof established venue. We need not address the issue of
venue in this case given the time of the initial objection.
United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999)14
is dispositive in its holding that the issue of improper
venue, at the very latest, must be raised in every possible
scenario before the jury reaches its verdict.
E. ADMISSION OF TAPE RECORDINGS BY STRUBE
ALLEGEDLY RELATED TO SUBSEQUENT UNCHARGED
NARCOTICS TRANSACTIONS
Over objection, the district court permitted the
government to introduce the May 22, 1995 recorded
conversation between Strube and George Morales, a
government informant. The conversation was nine months
after the intercepted third shipment of cocaine. 15 It is
_________________________________________________________________
14. A petition for certiorari was filed on June 4, 1999 (No. 98-9669).
15. A transcript of the audio tape is found in the Supplemental
Appendix. (S.A. at 12-18).
16
apparent from a reading of the conversation that the jury
could find that Strube is discussing cocaine and, by
inference, his involvement in the first shipment of 150
kilograms of cocaine. The district court found the statement
admissible against the background of the defense anchored
in public authority. To the extent the statements of Strube
alluded to subsequent cocaine transactions, they were
admissible under the teachings of Fed. R. Evid. 404(b) on
the issue of intention. We find no error.
F. SUFFICIENCY OF EVIDENCE OF CONSPIRACY TO
LAUNDER DRUG TRAFFICKING PROCEEDS
United States v. Reed, 77 F.3d 139, 142 (6th Cir.), cert.
denied, 517 U.S. 1246 (1996), teaches that mere
transportation of drug proceeds is insufficient proof of a
violation of 18 U.S.C. SS 1956 (a)(1)(A)(i) and (a)(2) for
laundering drug trafficking proceeds. However, the evidence
viewed in a light most favorable to the government
demonstrates that in excess of $1 million in drug trafficking
proceeds was collected in New York and transported, either
to Colombia, South America or to Pennsylvania. The
proceeds were used by both Pitt and Strube to pay
individuals like Wallace Pitt and others for their assistance
in flying and driving the cocaine across the country. The
monies were also used to pay the credit card bills of Pitt
which included travel charges related to his drug trafficking
activities. We find the claim of insufficient evidence as to
the laundering of the drug trafficking proceeds to be
without merit.
G. DENIAL OF STRUBE'S MOTION FOR A MISTRIAL
At closing argument, in response to a defense claim that
the government had strong-armed its witness, Wallace Pitt,
into a guilty plea, the government countered with the
following statement:
I will be brief. There has been a lot of speculation as to
why some people are here and some aren't. I could
spend a whole lot of time explaining to you all of that,
but it's not important. Because what the Judge is going
to instruct you is you have to consider whether these
men did these acts, not why or what happened to
everybody else.
17
But you do know some of that. I think it has been
slightly misportrayed to you. Wally Pitt wasn't beaten
into submission. Wally Pitt is a man. He admitted that
he did something wrong. He realized after the fact that
when you take 150 kilos across the country even
though your brother lied to you -- [Defense objection].
(J.A. at 1357).
Strube's counsel moved for a mistrial on the basis that
this statement by the government constituted an
impermissible reference to the fact that Strube had not
testified.
We find no error in the denial of the motion. Wefind the
statement to come within the "invited reply" doctrine
enunciated in United States v. Young, 470 U.S. 1, 11
(1985). In any event, the district court gave a curative
instruction.16
_________________________________________________________________
16. The district court's jury charge included the following instruction:
If you find that any government witness was an accomplice to the
commission of the crimes involved in this indictment, you should
consider such testimony with greater caution than that of a witness
who is not an accomplice.
You should also consider the extent to which such testimony may
have been influenced by the hope or expectation of favorable
treatment from law enforcement authorities.
Now you have heard testimony from government witnesses who
have pled guilty to charges arising out of the same facts in this
case.
You are instructed that you are to draw no conclusions or inference
of any kind about the guilt of these defendants on trial from the
fact
that a prosecution witness pled guilty to similar charges.
That witness's decision to plead guilty was a personal decision
about his own guilt. It may not be used by you in any way as
evidence against or unfavorable to the defendants on trial here.
By that very fact, ladies and gentlemen, you may not draw any
adverse inference to any defendant in this case who has not
testified.
Mr. Strube did not testify in this case. A defendant in a criminal
case has the absolute right under our constitution not to testify.
The
fact that defendant Strube did not testify must not be discussed or
considered by you in any way when deliberating or in arriving at
your verdict. No inference of any kind may be drawn from the fact
that Mr. Strube decided to exercise his privilege under the
constitution not to testify.
18
H. THE TWO-LEVEL ENHANCEMENT OF STRUBE'S
OFFENSE LEVEL FOR POSSESSION OF A FIREARM
The district court found the total offense level for Strube
to be 41 with a criminal history of III providing for a
sentencing range of 360 months to life. Strube received a
sentence of 360 months in contrast to the life sentence
imposed on Pitt. The total offense level included a two level
enhancement for the .357 caliber revolver displayed to
Wallace Pitt.
The district court addressed the issue of weapon
enhancement at the sentencing hearing as follows:
Good morning. The Court will address the objections
that have been filed. The first objection was to the
enhancement for firearms possessions.
I am fully aware of the defendant's argument. As I
review the evidence, there was a delivery of cocaine at
the residence of the defendant, and that Wallace Pitt
was present at Mr. Strube's residence and was escorted
through the house and shown the firearms.
As I recall, was not Wallace Pitt a collector himself?
[By counsel]: I believe that he had a firearms license,
yes, Your Honor.
[The Court]: But in any event, he recalled only a few of
those being antique items or collector items and that
the balance were operable weapons. And I believe that
under the U.S. Sentencing Guidelines that those facts
support an enhancement.
(J.A. at 1520).
The district judge permitted counsel to make their
respective arguments regarding the objection to thefirearm
enhancement and then concluded:
. . . With regard to the objections, I believe that there
is sufficient argument made by the defendants as to
the role in the offense and will delete that two point
enhancement.
In all other respects, the Court adopts the factual
findings and the guideline application as set forth in
19
the first and second addendum to the presentence
report in support of the enhancements.
(J.A. at 1543). The Presentence Report, describing the
offense conduct, stated that Wallace Pitt, half-brother of
Strube's co-defendant, Richard Pitt, drove a quantity of
cocaine from Utah to Strube's home in Pennsylvania, where
he met up with Richard Pitt, who had flown another
quantity of cocaine from Utah to Pennsylvania. The report
continues:
Wallace Pitt told investigators that Mr. Strube took the
bags of cocaine from his car and later took him on a
tour of his house. Wallace Pitt said the defendant
[Strube] showed him several firearms including a .357
caliber revolver. While at the defendant's house,
Richard Pitt paid Wallace Pitt $5,000.
"We review the district court's factual findings in relation
to sentencing issues for clear error." United States v. Felton,
55 F.3d 861, 864 (3d Cir. 1995) (citing United States v.
Fields, 39 F.3d 439, 447 (3d Cir. 1994)); United States v.
Miele, 989 F.2d 659, 663 (3d Cir. 1993); United States v.
Belletiere, 971 F.2d 961, 964 (3d Cir. 1992))."Our review
with respect to the court's application and interpretation of
the Sentencing Guidelines is plenary." Felton, 55 F.3d at864 (citing cases).
Application note 3 to USSG S2D1.1 states that
. . . The enhancement for weapon possession reflects
the increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied if
the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense. . . .
In United States v. Price, 13 F.3d 711, 734 (3d Cir.), cert.
denied, 514 U.S. 1023 (1995), this Court noted that "it was
the risk of violence caused by the combination offirearms
and drugs that merited an increase in sentence."
Although the district court here made no actualfindings
on the record, the court's statements quoted above
implicitly recognize that the weapons shown to Wallace Pitt
were "connected with the offense" and were certainly
intended to indicate a potential for violence. It takes no
20
imagination whatsoever to conclude that Strube displayed
his weapons to Pitt, not so Pitt, the gun collector, could
admire them, but so Pitt, the drug courier, would clearly
understand that Strube was never to be crossed. As this
Court has concluded: "[the defendant's] `arsenal' created a
strong inference that he possessed these weapons in order
to further the drug transaction." United States v. Demes,
941 F.2d 220, 223 (3d Cir.), cert. denied, 502 U.S. 949(1991).
We find no error in the enhancement for possession of a
weapon.
I. THE SUA SPONTE MOLDING OF THE JURY'S SPECIAL
FORFEITURE VERDICT
Count V of the Indictment sought the forfeiture of
property owned by Strube in Columbia, Pennsylvania and
also $1,081,400.00 in U.S. currency, pursuant to
provisions of 21 U.S.C. S 853(a) and 18 U.S.C.S 982(a)(1).
The jury returned a special verdict forfeiting $826,400.00
in U.S. currency from Pitt and an additional $255,000.00 in
currency from Strube along with the Strube residence.
Thereafter, the district court entered a judgment with joint
and several liability against both Pitt and Strube for the
total forfeited sum of $1,081,400.00. Strube challenges the
molding of the verdict as contrary to his right to have the
jury determine the issue and amount of forfeiture. The
government, building on the conviction of both Pitt and
Strube on Count IV, the money laundering count,
interprets the jury findings of the two sums of $826,400
and $255,000 as its determination that the entire sum the
government sought to forfeit, $1,081,400, was involved in
the money laundering offense and was therefore forfeitable
under a joint responsibility analysis.
Fed. R. Crim. P. 31(e) provides that a special verdict shall
be returned by the jury as to the extent of the interest or
property subject to forfeiture where the indictment alleges
such interest or property are subject to criminal forfeiture.
Strube contends that the district court erred in molding the
verdict to impose a forfeiture upon him in the sum of
$1,081,400 rather than the sum of $255,000 set forth in
the jury's verdict.
21
Congress has provided that, in imposing sentence on a
person convicted of, among other things, an offense in
violation of the money laundering statute, 18 U.S.C.S 1956,
a court "shall order that the person forfeit to the United
States any property . . . involved in such offense." 18 U.S.C.
S 982(a)(1). Pitt and Strube were both convicted as co-
conspirators under S 1956(h) (Count IV of the indictment).
We interpret S 982(a)(1) as imposing a rule of joint and
several liability in the case of a money laundering
conspiracy. The statute does not say that each conspirator
shall forfeit only such property involved in the offense
which is or has ever been in that conspirator's possession.
Rather, the statute recognizes that the amount of property
involved in a money laundering conspiracy cannot be
different for different conspirators.
In view of the above discussion, there is no need to reach
21 U.S.C. S 853(a)(1); however, it leads to the same
conclusion with respect to forfeiture of property involved in
drug-related crimes. Section 853(a)(1) provides for the
forfeiture of "any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly, as a
result of [a qualifying drug offense]." 17 In imposing sentence
on such person, the court "shall order[ ] . . . that the person
forfeit to the United States all property described in this
subsection." 21 U.S.C. S 853(a)(1) (emphasis added). Like
18 U.S.C. S 982(a)(1), 21 U.S.C. S 853(a)(1) imposes joint
and several liability with respect to forfeiture. See United
States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996)
(concluding that S 853(a)(1) "is not limited to property that
the defendant acquired individually but includes all
property that the defendant derived indirectly from those
who acted in concert with him in furthering the criminal
enterprise"), cert. denied, 520 U.S. 1281 (1997).18
_________________________________________________________________
17. Included among such offenses are those set forth in 21 U.S.C. SS 841
and 846. Section 841(a)(1) makes it unlawful for any person to
knowingly or intentionally distribute a controlled substance. Section 846
makes it unlawful for a person to conspire to distribute a controlled
substance. Pitt and Strube were both convicted of such offenses.
18. McHan also points to cases involving the RICO forfeiture statute,
where "courts have unanimously concluded that conspirators are jointly
and severally liable for amounts received pursuant to their illicit
agreement." McHan, 101 F.3d at 1043 (citing cases).
22
Thus, whether under 18 U.S.C. S 982(a)(1) or 21 U.S.C.
S 853(a)(1), Pitt and Strube were liable in forfeiture for the
full amount of cash received by the conspiracy. The jury's
special verdicts can be harmonized by interpreting them to
refer to the amount that each defendant personally
received. It was, therefore, proper for the trial judge to
harmonize the verdicts in this manner, to apply the strict
rule of joint and several liability that governs under both
forfeiture statutes, and to enter an appropriate judgment
based on this understanding.
IV. CONCLUSION
Based on the foregoing analysis, the convictions and
sentences of both appellants, Richard L. Pitt and William
Michael Strube, are AFFIRMED.19
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
19. We reject without discussion the claim that the district court erred
in refusing the requests of the defendants to play, in their entirety, 25
taped conversations between Pitt and the Customs Agents Bowers and
Mohle, and the claim that the government failed to comply with both the
Jencks Act and Brady v. Maryland, 373 U.S. 83 (1963), finding both
claims to be without merit.
23