United States v. Tracy Conley

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3442
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRACY CONLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CR-00779 — Sharon Johnson Coleman, Judge.
____________________
ARGUED SEPTEMBER 15, 2017 — DECIDED NOVEMBER 14, 2017
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Tracy Conley was ensnared in a
now familiar government set up in which a government ac-
tor, pretending to be a criminal, presents the defendant with
an opportunity to be part of a robbery of an illegal drug
stash house. The stash house is fictional, of course, and so
the government decides which and what quantity of drugs it
will have (in this case, fifty kilograms of cocaine) and how
high or low the barriers to the crime will be (in this case it
2 No. 15-3442
was allegedly protected only by two armed and one un-
armed guards). Conley took the bait and ended up with a
sentence of 180 months’ imprisonment on drug distribution
and weapons charges. He moved the district court for ac-
quittal or a new trial and when that was denied, appealed
the decision to this court. We affirm.
I.
Conley arrived at his workplace on November 1, 2011,
only to find that he could not work because of a malfunc-
tioning piece of machinery. He started to drive back to his
girlfriend’s house, but in a second stroke of bad luck, found
that he did not have enough gas or money to purchase gas
for the trip. While stopped at the gas station, Conley encoun-
tered two acquaintances, David Flowers (David) and Anwar
Trapp (Trapp). 1 According to the evidence taken in the light
most favorable to the government, as we must after convic-
tion by a jury (United States v. Longstreet, 567 F.3d 911, 918
(7th Cir. 2008)), David and Trapp picked up Conley and
brought him back to Anthony Adams’ basement to discuss a
plan to rob an illegal drug stash house, a plan orchestrated
by Myreon Flowers (Myreon).
Unbeknownst to Conley, Myreon, or anyone else in the
basement meeting, there was no robbery to be had. It was,
instead, a sting set up by the Federal Bureau of Investigation
(FBI) and the Bureau of Alcohol, Tobacco, Firearms and Ex-
plosives (ATF). Earlier, on October 25, 26, and 31, an FBI co-
operating source and an ATF undercover agent met with
Myreon to discuss and plan a stash house robbery. The un-
1 David and Myreon Flowers were related and had the same surname,
therefore we refer to each by his first name.
No. 15-3442 3
dercover agent, posing as the disgruntled employee of drug
kingpin, gave Myreon the tip that a drug-king boss had a
stash house where there would be at least fifty kilograms of
cocaine guarded by one unarmed and two armed men.
Myreon developed a plan involving at least three armed
robbers who would tie up the stash house guards and steal
the cocaine.
On October 31, Myreon met with his brother, David, and
his cousin, Trapp, at a friend’s apartment and told them
about the opportunity to rob the stash house. The three men
discussed recruiting Adams because he had a gun. The next
day, November 1, Trapp, David, and Myreon found Adams
and discussed plans with him in the basement of his house.
Cell phone records confirmed calls between Adams and Da-
vid at this time.
Trapp testified that in that basement meeting Myreon
explained to Adams that “he had this one white guy that got
a lick [robbery] for them to go on for fifty kilos of coke.” A.
0202. 2 After some discussion of the robbery plan and the
need for more participants, Adams said that he had someone
in mind who could help, and he, David and Trapp left Ad-
ams’ house to pick up the defendant who was a few blocks
away. 3 Prior to this point, Conley was not involved in the
conspiracy.
2References are to the defendant-appellant’s short appendix filed in this
court.
3 The government’s brief implies that Conley was at his house which was
only a few blocks away from Adam’s residence. Conley maintains that
he met them at a gas station. Whether Conley was at his house or at a gas
station does not affect the resolution of this case.
4 No. 15-3442
According to Trapp, he, Myreon, David, Adams, and
Conley then reunited, again in Adams’ basement, to discuss
the robbery. Conley, of course, had a different version of the
story—one that involved smoking marijuana and discussing
some work gutting a house. But once again, on a motion for
acquittal or new trial, we take the facts in the light most fa-
vorable to the government, which in this case come largely
from the testimony of co-conspirator Trapp and corroborat-
ed in many instances by other evidence and testimony. At
this final basement meeting, Myreon passed along what he
had learned from “the white guy”—that the fifty kilos were
being stored in a garage guarded by three Mexicans, two of
whom had guns. Trapp understood that Adams and Conley
would be the ones “that actually do the robbery.” A. 0208.
The group decided that they needed one more robber and
one more gun to carry out their plan.
In response to their questions, Myreon told Adams and
Conley that they would get two to three kilograms of co-
caine apiece for assisting with the robbery. Trapp also testi-
fied that Adams and Conley wanted to know how Myreon
knew the white guy, whether he could be trusted, and what
was going to happen to him after the robbery—that is
whether “we gonna leave him alone or we gon [sic] pop
[shoot] him.” A. 0210. Myreon said that nothing would hap-
pen to “the white guy.” The group then agreed to meet at
6317 S. Mozart in a few hours before dispersing.
Trapp testified that following that meeting, he and David
dropped Conley off where they had picked him up. Trapp
then called his cousin, Dwayne Jones, and asked to meet him
at 6317 S. Mozart because “it [was] about to go down.” A.
0212. Trapp and Jones both testified that they then met with
No. 15-3442 5
David and Myreon at that address and that the four of them
(Conley was not present) discussed the robbery, including
the fact that others would also be involved.
Based on their plan, the four men (not including Conley)
drove to a nearby Lowe’s hardware store to procure supplies
for the robbery, including a walkie-talkie set to communicate
with each other during the robbery, and blue latex gloves to
ensure that they did not leave fingerprints behind. Jones tes-
tified that during the drive back to Mozart Street, he and
Myreon had a disagreement about the fact that the latter had
told the men who would actually be executing the robbing
that they would each only get two kilograms of cocaine.
Jones did not think that was fair as those were the three in-
dividuals who would be assuming the greatest risk by going
into the garage to get the drugs. Myreon, however, said that
the men had already agreed to the amount.
The undercover FBI agent arrived at 6317 S. Mozart at
around 1:45 pm and recorded the conversations. From ap-
proximately 1:45 until 2:30 p.m., Myreon, David, Trapp,
Jones and the agent discussed plans for the robbery while
waiting for Conley, Adams, and a third man, Rudy Space, to
arrive. As Myreon explained to the agent, earlier that morn-
ing he had met with these individuals who were going to
actually execute the robbery, and had discussed the possibil-
ity of having to shoot the armed guards. According to the
recording, David obtained a gun from inside the house and
Trapp hid it inside of Myreon’s white work van.
Eventually, Conley, Adams, and Space arrived at the
house on Mozart Street. Adams retrieved an item (the gov-
ernment surmises that it was likely a gun) out of his trunk
and then followed Conley and Space into the white work
6 No. 15-3442
truck. Photographs of the interior of the van showed that it
was full of tools and equipment with little space for three
adult men to sit.
Trapp testified, and surveillance data confirmed, that af-
ter the three men entered the white work van, Trapp ob-
tained a silver gun from a man named Woody. Trapp
wrapped the gun in his sweatshirt and handed it to Myreon
who was sitting in the driver’s seat of the white work van.
Myreon took the gun and returned the sweatshirt. A photo-
graph of the toolbox in which the gun was later deposited
showed that the silver gun ended up at the bottom of the
box, beneath two other guns, neither of which was silver.
The government uses this as evidence that someone (but we
do not know who) moved the guns around while they were
in the back of the work van, and surmises therefore that an-
yone in the cramped van would have seen and thus had
knowledge of the guns.
Myreon drove the van with the undercover agent, Ad-
ams, Space, and Conley to meet up with others at a gas sta-
tion and then drove to a nearby forest preserve where Myre-
on announced that Adams, Conley, and Space would get out
of the work van and into another van to head to the location
of the stash house. The surveillance video showed Adams,
Conley, and Space exiting the work van and immediately
entering the undercover agents’ van.
Almost immediately thereafter, the agent gave the arrest
signal and Conley and the other co-conspirators were taken
into custody. As the arresting officer approached Conley, the
latter removed the blue surgical gloves that he had been
wearing and discarded them and then started crawling away
from the van.
No. 15-3442 7
After the arrests, law enforcement officers found the
walkie-talkies and a toolbox containing three loaded guns.
Conley’s fingerprints were not found on any of the guns or
the toolbox. During Conley’s post-arrest interview he admit-
ted that he went to the house on Mozart with Adams and
Space, but stated that he had put on the blue surgical gloves
as a joke and that they were driven to a forest preserve
where someone handed him a tool case. The interviewing
officer stated that Conley got angry and agitated when ques-
tioned about the toolbox.
The government charged Conley with (1) conspiracy to
possess with intent to distribute more than five kilograms of
a controlled substance, in violation of 21 U.S.C. § 841(a)(1);
(2) attempt of the latter; (3) possessing a firearm in further-
ance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924 (c)(1)(A); and (4) being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). A jury found Con-
ley guilty on all counts. Conley moved for post-trial relief
seeking a judgment of acquittal or a new trial under Fed. R.
Crim. P. 29 and 33, respectively. Conley’s claims, which he
repeats here, were that there was insufficient evidence to
convict him beyond a reasonable doubt, and that Trapp’s
testimony was unreliable and should not have been credited
for the purposes of establishing the elements of the offense.
At the district court’s request, the parties also briefed the
application of this court’s then-recent decision in United
States v. Mayfield, 771 F.3d 417 (7th Cir. 2014), regarding the
defense of entrapment. The district court, clearly distressed
by the government’s false stash house set up and by the thin
amount of evidence supporting Conley’s convictions, never-
theless concluded that under the standard for acquittal after
a jury verdict or for a new trial, there was sufficient evidence
8 No. 15-3442
to support the convictions and that none of the alleged er-
rors warranted a new trial.
The district court sentenced Conley to 180 months’ im-
prisonment—120 months on the conspiracy, attempt and
felon-in-possession convictions, to run concurrently, and 60
months of imprisonment on the conviction for possession of
a firearm in furtherance of a drug trafficking offense, to be
served consecutively, as required by statute. Conley’s co-
conspirators, all of whom entered into plea agreements, re-
ceived between 46 and 104 months, the latter for Myreon,
the ringleader of the conspiracy. Jones and Trapp testified
against Conley under a plea deal in which they were each
promised a dramatically reduced sentence in return for their
testimony.
II.
We review the district court’s denial of a motion for ac-
quittal de novo, taking the evidence in the light most favora-
ble to the government, and granting the motion only where
no rational jury could have found the defendant guilty be-
yond a reasonable doubt. United States v. Betts-Gaston, 860
F.3d 525, 533 (7th Cir. 2017). If there is a reasonable basis in
the record for the verdict, it must stand. United States v.
Moshiri, 858 F.3d 1077, 1082 (7th Cir. 2017).
A. The conspiracy charges.
Conley argues that the government failed to meet its
burden of establishing sufficient evidence to support his
conviction on the conspiracy charges and thus the district
court erred by denying his post-trial motion for acquittal. To
sustain a conviction for conspiracy under 21 U.S.C. § 846, the
government had to prove the existence of
No. 15-3442 9
a conspiracy to possess with intent to distribute a controlled
substance and that Conley knowingly or intentionally be-
came part of the agreement. United States v. Salinas, 763 F.3d
869, 877 (7th Cir. 2014); United States v. Mire, 725 F.3d 665,
678 (7th Cir. 2013). Similarly, to sustain a conviction for at-
tempt, the government had to prove that Conley intended to
possess cocaine with the intent to distribute it and knowing-
ly took a substantial step toward that goal. United States v.
Fiedeke, 384 F.3d 407, 411–12 (7th Cir. 2004).
Although it is true that there were no smoking guns with
Tracy Conley’s name on them in this trial, the government
set forth sufficient evidence for a jury to conclude that Con-
ley participated in the conspiracy. The strongest parcel of
evidence came from Trapp’s testimony about the November
1, 2011 strategy and planning meeting before the attempted
crime. Trapp testified that on that date, the conspirators, in-
cluding Conley, met in a basement to discuss the robbery.
According to Trapp’s testimony, Myreon told the men about
his encounter with the man who tipped him off about a
Mexican cartel’s stash house filled with 50 kilograms of co-
caine. Myreon conveyed that three men (two of them armed)
would be guarding the drugs. The group together decided
that they would need another person, Space, to safely carry
out the robbery. Trapp testified that he understood that Con-
ley, Adams, and the other “guy” (Space) were “gon [sic] be
the one[s] that actually do the robbery.” A. 0208. Trapp testi-
fied that the group together decided that they needed more
guns as one would not be enough. Trapp also testified that
“Conley and [Adams] wanted to know like how did Myreon
met this guy and do we trust him, what’s gon [sic] happen
with him after everything is finished … what we gon [sic] do
to him, like if we gonna leave him alone or we gon [sic] pop
10 No. 15-3442
[shoot] him.” A. 0210 Just as with Shakespeare’s Rosencrantz
and Guildenstern, the storyline does not make explicitly
clear which conspirator, Conley or Adams, made which
statement. Trapp’s testimony, however, was that both Con-
ley and Adams were asking questions about Myreon’s
source of information and that both were present for the dis-
cussion of the need for a gun and deliberations about
whether the government agent would be killed. Although it
is true that it would have been stronger evidence of Conley’s
participation if we knew that he had been a vocal participant
in the planning. Nevertheless, Trapp’s testimony clearly es-
tablished that Conley was part of the conversation and un-
derstood what was being said and the nature of the plan. It
does not much matter which words came from him and
which from his co-conspirators provided that he knew of the
existence of the conspiracy, knowingly or intentionally
agreed to become part of it, and took a substantial step to-
ward that goal by entering the van and donning the gloves.
The evidence is sufficient to show that he did.
Trapp was, of course, a convicted felon and testifying
under a plea deal that would greatly reduce his potential
prison sentence, but the jury was entitled to credit his testi-
mony and we cannot say that no reasonable jury could have
done so. Much of his testimony was corroborated by other
evidence or testimony. For example, Jones testified that he
heard about the same basement meeting from Myreon and
David; phone cell site records corroborated Trapp’s testimo-
ny about the location of various conspirators at the times he
had specified. And those same records corroborated his re-
ports of contacts between conspirators, and other records
corroborated the addresses of various defendants and their
locations as described by Trapp. In addition, after being ar-
No. 15-3442 11
rested, Conley himself admitted to having been present at
the basement meeting (although he claims they discussed a
cleaning or construction job). The government also had a re-
cording from November 1, 2011 in which Myreon described
the basement meeting and in which other conspirators re-
ferred to the roles of their co-conspirators, including Conley.
Moreover, the jury had more than just Conley’s mere
presence with the conspirators upon which to convict. They
had Conley’s own movements and words which added evi-
dence to the mix. Conley got into the work van, donned la-
tex gloves, and then transferred to the next van which was
supposed to take him to the stash site. He also confessed to
law enforcement that he had attended the November 1
basement meeting. See United States v. Johnson-Dix, 54 F.3d
1295, 1302 (7th Cir. 1995) (“when acts in furtherance of the
conspiracy were committed, a defendant’s presence, along
with other evidence indicating that the presence or act was
intended to advance the ends of the conspiracy, is sufficient
to establish the participatory link.”)
Circumstantial evidence, standing alone, can suffice to
support a conspiracy conviction. United States v. Goree,
756 F.3d 522, 525 (7th Cir. 2014). And in this case it support-
ed Trapp’s testimony. In other words, we cannot say that
there was no evidence from which a reasonable juror could
have found Conley guilty of joining the conspiracy to pos-
sess with intent to distribute a controlled substance. And for
all the reasons that the evidence was sufficient to support a
jury verdict for conspiracy, it also supported a jury finding
of attempt.
In addition to moving for acquittal, Conley also asked the
district court for a new trial pursuant to Federal Rule of
12 No. 15-3442
Criminal Procedure 33. That rule provides that a trial court
“may vacate any judgment and grant a new trial if the inter-
est of justice so requires.” Fed. R. Crim. P. 33(a). This court
reviews a district court’s denial of a motion for a new trial
under Rule 33 for an abuse of discretion. United States v.
Flournoy, 842 F.3d 524, 528 (7th Cir. 2016). A new trial is war-
ranted “where the evidence preponderates so heavily
against the defendant that it would be a manifest injustice to
let the guilty verdict stand.” United States v. Reed, 875 F.2d
107, 114 (7th Cir. 1989). As the district court recognized, in
such a motion, a court may properly consider the credibility
of the witnesses, and may grant a new trial if the verdict is
so contrary to the weight of the evidence that a new trial is
required in the interest of justice. United States v. Washington,
184 F.3d 653, 657 (7th Cir. 1999). Because the district court
judge is best positioned to make this determination, our re-
view is highly deferential, recognizing that “the exercise of
power conferred by Rule 33 is reserved for only the most ex-
treme cases.” United States v. Peterson, 823 F.3d 1113, 1122
(7th Cir. 2016) (citing United States v. Morales, 902 F.2d 604,
606 (7th Cir. 1990), amended 910 F.2d 467 (7th Cir. 1990)).
Conley’s motions for acquittal and for a new trial are
based on the same claims, that the government failed to
prove the elements of the offenses beyond a reasonable
doubt—in other words that the verdict was against the
weight of the evidence. It is true that the district court could
consider Trapp’s credibility while considering his motion for
a new trial, and the district court noted just that. United
States v. Conley, No. 11-CR-779-6, 2015 WL 394012, at *4
(N.D. Ill. Jan. 29, 2015). Conley appears to argue that the dis-
trict court did not properly consider Trapp’s credibility un-
der the standard for a new trial. The district court set forth
No. 15-3442 13
the proper standard and determined that there was suffi-
cient evidence to support the conviction. There was no need
for the district court to engage in a second end-to-end review
of the same evidence that it used in determining sufficiency
under the motion to acquit.
Overturning the jury’s determination on Trapp’s credibil-
ity would require the district court to make the exacting and
rare determination that his testimony was incredible as a
matter of law. United States v. Hayes, 236 F.3d 891, 896 (7th
Cir. 2001). Such a determination is usually reserved for ex-
treme situations wherein, for example, “it would have been
physically impossible for the witness to observe what he de-
scribed, or it was impossible under the laws of nature for
those events to have occurred at all.” Id. Under ordinary cir-
cumstances, a defendant who has received a reduced sen-
tence in exchange for his testimony does not present such an
extreme situation, particularly when, as was the case here,
the jury was informed of the agreement and could weigh the
implications of it along with credibility. A finder of fact is
entitled to believe the testimony of even the most dishonest
of witnesses. United States v. Algee, 309 F.3d 1011, 1016 (7th
Cir. 2002). After all, just as a broken clock is correct twice a
day, a lying felon might also speak the truth at times. In
sum, this was not one of those rare instances in which the
evidence was so speculative that justice demanded a new
trial. See e.g., Peterson, 823 F.3d at 1122.
B. The firearms charges.
In addition to returning a finding of guilt on the conspir-
acy charges, the jury also found Conley guilty both of pos-
sessing a firearm in furtherance of a drug trafficking crime
and of being a felon in possession of a weapon. As with the
14 No. 15-3442
conspiracy charges, Conley argues that the government
failed to meet its burden of establishing sufficient evidence
to support his conviction on these charges. In order to con-
vict Conley for possessing the firearm during a drug crime,
the government had to prove beyond a reasonable doubt
that the defendant possessed a gun and used it in relation to
a drug offense. 18 U.S.C. § 924(c); United States v. Duran,
407 F.3d 828, 840 (7th Cir. 2005). Possession of a weapon may
be actual or constructive where the latter “may be estab-
lished by demonstrating that the defendant knowingly had
the power and intention to exercise dominion and control
over the [gun], either directly or through others, thus estab-
lishing a nexus between himself and the [gun].” United States
v. Jones, 872 F.3d 483, 489 (7th Cir. 2017), citing United States
v. Katz, 582 F.3d 749, 752 (7th Cir. 2009).
We agree with the district court that the evidence of ac-
tual or constructive possession was meager. The government
presented no evidence that Conley handled any weapons.
His fingerprints did not appear on any firearms or the
toolbox. The government argues instead that the guns went
into the toolbox in a certain order but were in a different or-
der when the police seized them, indicating that they had
been moved around in the back of a crowded van in which
three grown men, including Conley, were squeezed one on
top of another. If the guns had been moved, the government
implies, Conley must have seen them. They support this im-
plication with Conley’s agitated behavior when questioned
about the toolbox. This is a drop of circumstantial evidence
indeed, but not more. More convincing is the government’s
argument that Conley was present for the discussion of the
stash house raid which included a description of the armed
guards who were expected to be protecting the stash, and
No. 15-3442 15
the consequential need for firearms. As the government said
in closing and argues in its brief, “You can’t bring a knife to
a gunfight.” (Brief of the United States at 27). But that is
proof that Conley participated in a conspiracy in which fire-
arms were used. It is not evidence that Conley possessed,
either actually or constructively, a firearm. And if the basis
for Conley’s conviction on this count is his participation in a
drug conspiracy in which firearms were used, that kind of
guilt can be proved through the Pinkerton theory of liability.
Under a Pinkerton theory of liability, a defendant is liable
for the criminal conduct of co-conspirators where those
criminal acts (1) were reasonably foreseeable to the defend-
ants; and (2) occurred during the time that they were mem-
bers of the conspiracy. United States v. Cruse, 805 F.3d 795,
817 (7th Cir. 2015), cert. denied sub nom. McClain v. United
States, 136 S. Ct. 1699 (2016), citing Pinkerton v. United States,
328 U.S. 640, 647–48 (1946). In this case, the use of firearms
was an essential part of the plan, it was within the conspira-
cy’s scope, and therefore foreseeable to Conley. And because
Conley joined the conspiracy, he is accountable for his con-
federates’ foreseeable acts. See United States v. Adams, 789
F.3d 713, 714 (7th Cir. 2015).
Trapp testified that Conley was present at the meeting
where the co-conspirators outlined the plan for the robbery,
including a discussion of the fact that two of the stash house
guards would be armed, and that therefore they would need
firearms (and more than the one to which they then had ac-
cess). According to Trapp’s testimony, Conley was also ac-
tively involved in a discussion in which some members of
the group discussed whether the man who brought them the
information would be killed or not. For all of the reasons
16 No. 15-3442
outlined above, Conley was a part of the conspiracy. As a
member of the conspiracy, therefore, Conley can be held ac-
countable for the foreseeable use of the firearm in further-
ance of a drug trafficking crime. He could also be found
guilty as an aider and abettor, under the theory that even if
he did not bring the gun to the drug deal himself, he took
part in the plan knowing (beforehand—that is, with time
enough to withdraw) that a confederate would do so. See
Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014).
As for the felon-in-possession charge, the government
was required to demonstrate that (1) Conley had a prior fel-
ony conviction, (2) that he possessed a firearm, and (3) that
the firearm travelled in or affected interstate commerce.
United States v. Sewell, 780 F.3d 839, 847 (7th Cir. 2015). Con-
ley disputed only the possession prong. Although there was
for a time some confusion as to whether, in this Circuit, Pink-
erton liability could be applied to a felon-in-possession
charge, (see United States v. McLee, 436 F.3d 751, 758 n.3 (7th
Cir. 2006); United States v. Walls, 225 F.3d 858, 864–66 (7th
Cir. 2000)), our decision in United States v. Newman, ended
that uncertainty, at least for the facts as presented this case.
See Id., 755 F.3d 543, 546 (7th Cir. 2014). Conley had a felony
conviction, he participated in the joint criminal activity,
promoted its objective, and knew that confederates had
guns. See Id. Under both the theory of shared culpability of
conspirators under Pinkerton and that for aiding and abetting
under Rosemond, Conley is liable for being a felon in posses-
sion of a weapon.
C. Entrapment.
This leaves only Conley’s claim of entrapment for discus-
sion. The defense of entrapment, however, is inapplicable in
No. 15-3442 17
this case as it applies only when a government actor recruits
a defendant into a conspiracy. There is no defense to en-
trapment by a private individual. United States. v. Morris,
549 F.3d 548, 551 (7th Cir. 2008). Conley’s co-conspirators,
and not the government, recruited him. Conley tries to make
an end run around this clear precedent by claiming that he
was entrapped derivatively. Derivative entrapment occurs
“when a private individual, himself entrapped, acts as agent
or conduit for governmental efforts at entrapment.” United
States v. Hollingsworth, 27 F.3d 1196, 1204 (7th Cir. 1994). It is
a doctrine whose validity is under some debate. See, e.g.,
United States v. Layeni, 90 F.3d 514, 519 (D.C. Cir. 1996) (ques-
tioning the reasoning in Hollingsworth). But even were it not,
the defense of derivative entrapment can only be applied to
a defendant who was entrapped through a first entrapee.
Ward v. United States, 858 F.3d 1072, 1076 (7th Cir. 2017). In
this case, the ATF undercover agent recruited Myreon, the
ringleader, who in turn recruited David, who recruited Ad-
ams, who recruited Conley. Conley was far too many de-
grees of separation from the government agent to utilize an
entrapment defense. The distinction is not without reason.
The government induces a crime when it solicits a crime and
engages in “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.” Mayfield, 771 F.3d at 434–35. That other conduct
may be “repeated attempts at persuasion, fraudulent repre-
sentations, threats, coercive tactics, harassment, promises of
reward beyond that inherent in the customary execution of
the crime, pleas based on need, sympathy, or friendship, or
any other conduct by government agents that creates a risk
that a person who otherwise would not commit the crime if
18 No. 15-3442
left alone will do so in response to the government’s efforts.”
Id. at 435. Although the government has control over its
conduct when interacting with the first alleged entrappee
(and might possibly if asserting direct agency over a second
entrappee), the government agency cannot possibly control
what types of conduct have been used to induce conduct in
someone several actors down a chain.
III.
We conclude with a word about the district court’s artic-
ulated dismay with the prosecution of this stash house case.
In its order, the district court questioned “the wisdom and
purpose of expending the level of law enforcement resources
and judicial time and effort in this prosecution.” Conley,
2015 WL 394012 at *6. At sentencing the court stated that
Conley’s sentence was “devoid of [] true fairness … and will
serve no real purpose other than to destroy any vestiges of
respect in our legal system and law enforcement that this de-
fendant and his community may have had.” A. 0068. Specifi-
cally, the district court was dismayed that it was forced into
a minimum sentence based on the government’s ability to
control the sentence by manipulating the amount and type
of drugs that were “in” the fictitious stash house.
The district court’s discomfort with this case echoes a
substantial body of criticism of similar stash house cases
both from this circuit and others. Beginning many years ago,
we criticized these cases as “tawdry,” noting in particular
how these operations are “directed at unsophisticated, and
perhaps desperate defendants” like Conley who easily take
the all-too-tempting bait put out for them by the govern-
ment. See United States v. Lewis, 641 F.3d 773, 777 (7th Cir.
2011). See also United States v. Kindle, 698 F.3d 401, 414 (7th
No. 15-3442 19
Cir. 2012) (Posner, J., dissenting), reh'g en banc granted, opin-
ion vacated (Jan. 16, 2013), on reh'g en banc sub nom. United
States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (noting that fic-
titious stash house stings “are a disreputable tactic,” and al-
low law enforcement to manipulate the inducements and
temptations to “jack up” sentences); United States v. Flowers,
No. 15-3988, 2017 WL 4785960, at *15 (6th Cir. Oct. 24, 2017)
(Stranch, J., concurring) (“I find the concept of these ‘stash
house sting’ operations at odds with the pride we take in
presenting American criminal justice as a system that treats
defendants fairly and equally under the law.”); United States
v. Washington, 869 F.3d 193, 213 (3d Cir. 2017) (reminding the
government that the court has expressed misgivings in the
past about the wisdom and viability of reverse stash house
stings.); id. at 223 (McKee, J., dissenting) (“the potential for
abuse and mischief that is endemic to fictitious stash house
stings should not be ignored,” and includes government
manipulation of drug quantities to increase sentences, diffi-
cult questions about whether a planned stash house robbery
is within a defendant’s actual ambition and means, and
whether such cases raise issues of racial profiling); United
States v. Briggs, 623 F.3d 724, 729–30 (9th Cir. 2010) (express-
ing concern about the fact that in fictitious stash house oper-
ations like the one at issue here, the government has virtual-
ly unfettered ability to inflate the amount of drugs and min-
imize the obstacles thereby increasing sentences); United
States v. Black, 750 F.3d 1053, 1057–58 (9th Cir. 2014) (“in this
era of mass incarceration, in which we already lock up more
of our population than any other nation on Earth, it is espe-
cially curious that the government feels compelled to invent
fake crimes and imprison people for long periods of time for
agreeing to participate in them—people who but for the
20 No. 15-3442
government’s scheme might not have ever entered the world
of major felonies.”); United States v. McLean, 199 F. Supp. 3d
926, 943 (E.D. Pa. 2016) (finding that enforcing a mandatory
minimum in a fake stash house case would offend due pro-
cess because of “the inherently arbitrary way in which stash
house sting cases first ensnare suspects” and the “concentra-
tion of power that allows the Government to define both
crime and punishment, with no possibility for judicial re-
view of the facts of the individual case.”).
In this case, Conley may have been starting down a
straighter path, after a life filled with many poor choices. He
was gainfully employed, had obtained his GED, enrolled in
some college courses, and had skills in electronics and mar-
keting. But he was also an “unsophisticated and desperate”
target, so down on his luck that he did not have even
enough money to get home from work on the day he was
approached by his co-conspirators. See Lewis, 641 F.3d at 777.
They folded him into the conspiracy after most of the plan-
ning had already been done by Myreon, David, and Trapp,
and assigned him and the other johnny-come-latelys the
dangerous job of confronting the armed guards and stealing
the drugs, while the planners lingered on the periphery in
relative safety. Like the district court, we “question[] the
wisdom and purpose of expending the level of law enforce-
ment resources and judicial time and effort in this prosecu-
tion.” Conley, 2015 WL 394012 at *6. But the resources have
been expended and the district court conducted an excep-
tionally thorough post-trial review and “[a]fter much con-
sideration, time, reflection and review of the parties’ argu-
ments and the trial record” properly denied the motion for
acquittal or new trial on all charges. See id. The decision of
the district court is AFFIRMED.