United States v. Stephanie Cannon

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No. 95-1996
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Stephanie Cannon, also known as *
Stephanie Lynch, *
*
Defendant - Appellant. *
Appeals from the United States
District Court for the
_____________ District of North Dakota.
No. 95-1997
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Keith Anthony Cannon, *
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Defendant - Appellant. *
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No. 95-2233
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United States of America, *
*
Plaintiff - Appellant, *
*
v. *
*
Stephanie Cannon, also known as *
Stephanie Lynch, *
*
Defendant - Appellee. *
_________________________ *
*
United States of America, *
*
Plaintiff - Appellant, *
*
v. *
*
Keith Anthony Cannon, *
*
Defendant - Appellee. *
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Submitted: November 14, 1995
Filed: July 10, 1996
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Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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HANSEN, Circuit Judge.
Stephanie Cannon and Keith Anthony Cannon were convicted of various
drug and firearm offenses. They challenge the validity of their
convictions, raising a number of issues including entrapment, outrageous
government conduct in violation of their due process rights, and
prosecutorial misconduct. The United States cross appeals, contending that
the district court erroneously sentenced the defendants. We reverse and
remand.
I.
Viewing the evidence in the light most favorable to the verdicts, a
reasonable jury could have found the following.
Keith Cannon and Stephanie Cannon (collectively, "Defendants"),
residents of Minneapolis, Minnesota, sold cocaine
2
base on four occasions to Special Agent Charles Sherbrooke, an undercover
officer with the West Central Minnesota Drug Task Force. The first
transaction was recorded on audio tape, and the latter three transactions
were videotaped.
Defendants met Agent Sherbrooke for the first time in Alexandria,
Minnesota, when the parties were introduced by a confidential informant.
Defendants sold cocaine base to Agent Sherbrooke and told him they were
interested in acquiring firearms. The parties made arrangements to meet
again in Alexandria within a week.
As planned, Defendants sold more cocaine base to Sherbrooke less than
a week later. When Sherbrooke asked Defendants whether they were still
interested in obtaining firearms, Defendants again indicated their
interest, this time specifically stating that they wanted two .38 caliber
snub nosed revolvers, two derringers, and one .25 caliber automatic pistol.
Sherbrooke said he had a supplier who could provide those weapons and
offered to get anything else Defendants might want. He explained that the
deal would have to take place in North Dakota, however, because there was
an arrest warrant out for his supplier in Minnesota. When Sherbrooke
kidded Defendants about their reasons for wanting the weapons, Defendants
said they were "desperate" because they had had drugs stolen from them in
the past.
Two days later, the parties met for a third time in Alexandria, and
Sherbrooke again purchased cocaine base from Defendants. The conversation
immediately turned to the plans for the next transaction. Stephanie Cannon
again told Sherbrooke she was interested in obtaining five handguns, and
Sherbrooke replied, as he had at the prior meeting, that his supplier could
get her the handguns and anything else she might want. At three points in
the conversation, Sherbrooke stated that Defendants would have an
assortment of about 15 weapons from which to choose. When
3
Sherbrooke asked how much a couple of "oz's" of cocaine base would cost
him, Keith Cannon answered and then noted that the parties could trade guns
for drugs. Before parting, the parties agreed to meet in Fargo, North
Dakota, the following week.
As scheduled, the fourth and final transaction occurred at a motel
in Fargo. Agent Sherbrooke introduced Defendants to Special Agent John
Keating of the Bureau of Alcohol, Tobacco, and Firearms, who posed as
Sherbrooke's firearm supplier. When everyone was introduced, Sherbrooke
served Defendants alcoholic drinks. After some initial small talk, the
parties discussed the terms of sale for the cocaine base Defendants had
brought. The conversation then turned to the subject of firearms.
Agent Keating had with him 10 firearms in a dufflebag, including
three 9 mm semi-automatic pistols, two .25 caliber semi-automatic pistols,
two .38 caliber revolvers, one .357 magnum caliber revolver, and two MAC-
type machine guns -- one a .45 caliber and the other a .380 caliber.
Keating removed each weapon from the bag, briefly identifying it and
showing it to Defendants. When Keating described the larger of the machine
guns as capable of holding 30 rounds, Sherbrooke called it a "neat item."
Keating explained that the smaller machine gun could hold 15 rounds.
Defendants proceeded to inspect the various firearms. Keith Cannon
expressed his concern that the .25 caliber semi-automatic pistol would not
inflict enough damage. Agent Keating disagreed but noted it was not as
powerful as the machine guns. When Keating explained again that the larger
machine gun could hold 30 rounds, quite a bit of protection for Defendants'
drug business, Sherbrooke chimed in that that was a "lot of rock and roll."
After some discussion on the various makes of handguns, Defendants selected
three of them.
4
The parties' attention then turned to a discussion on how Sherbrooke
had been shorted in an earlier deal with the Defendants. After they
resolved that issue, Agent Sherbrooke inquired whether Defendants wanted
any of the remaining guns. Keith said no. Keith stated, however, that he
wanted to get together with Keating later to purchase an "Uzi or some type
of automatic weapon." Stephanie pointed to the machine gun and said,
"That's it." Keith explained the dangers the Defendants face on the street
and said he needed a powerful gun for protection. He concluded he wanted
a machine gun with 50 rounds, because "I get crazy sometimes." Keith told
the officers he wanted to purchase such a gun at their next meeting.
Sherbrooke asked Keating whether the machine guns would be available
for sale in the future. Keating replied that he expected to sell the guns
he had brought to this meeting to another buyer if Defendants did not
purchase them. Keith stated he would like to purchase a machine gun at the
next meeting, again stressing the need for protecting the business. He
stated, "I believe in sprayin' everything that's moving." Both Defendants
said that, in the meantime, the handguns would hold them over. Sherbrooke
picked up one of the machine guns and began examining its features.
Keating noted the gun's rapid rate of fire.
Stephanie then asked whether the Defendants could trade drugs for a
machine gun. The agents answered affirmatively, and the parties agreed to
barter three ounces of cocaine base for three handguns, the MAC-type .380
caliber machine gun, and $4,600 in United States currency. After the
exchange, Defendants carried their newly acquired weapons out of the motel,
where law enforcement officers were waiting.
Defendants were arrested and charged in a nine-count indictment,
which included counts of distribution of cocaine base and conspiracy to
distribute and to possess with intent to distribute, in violation of 21
U.S.C. §§ 841(a) and 846; of
5
knowingly using and carrying firearms during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c); and of knowingly and
unlawfully possessing a machine gun, in violation of 18 U.S.C. §§ 922(o)
and 924(a)(2). Keith Cannon was also charged with being a felon knowingly
in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). One count was dismissed by the Government before trial.
The case proceeded to trial in the United States District Court for
the District of North Dakota. Defendants filed a pretrial motion to
dismiss the indictment, contending the officers had violated Defendants'
due process rights by artificially creating venue in the District of North
Dakota. Defendants alternatively moved for transfer of venue pursuant to
Rule 21(a) and (b) of the Federal Rules of Criminal Procedure. The
district court denied these motions. Defendants also moved to dismiss the
counts relating to receiving and possessing the machine gun on grounds of
due process and entrapment as a matter of law. In support of this motion,
Defendants referred the court to the video and audio tapes of the drug and
firearms transactions, but did not provide the court copies of the tapes.
Finding the evidence before him insufficient to support Defendants' claims,
the district judge denied Defendants' motion.
At trial, Defendants presented an entrapment defense, but the jury
rejected it and returned guilty verdicts on all counts. Defendants raised
the defense again in posttrial motions for judgment of acquittal and for
a new trial. The district court denied the motions and held that
Defendants were not entrapped as a matter of law. At sentencing, however,
the court found that the government had engaged in sentencing entrapment
and sentencing manipulation with regard to the machine gun charges.
Accordingly, the court did not impose the mandatory, consecutive, 30-year
sentence for knowingly using and carrying a machine gun during and in
relation to a drug trafficking offense, imposing instead the
6
mandatory, consecutive, 5-year sentence for using or carrying a firearm
during and in relation to a drug trafficking offense. See 18 U.S.C.
§ 924(c)(1). Defendant Keith Cannon was sentenced to 216 months in prison
(156 + 60) and a five-year term of supervised release, and fined $17,500.
Stephanie Cannon was sentenced to 181 months in prison (121 + 60) and a
five-year term of supervised release, and fined $17,500. Defendants appeal
their convictions and sentences on numerous grounds, and the government
cross appeals the sentences.
II.
A. VENUE
The first three drug deals occurred in Minnesota, where Defendants
reside, and the fourth transaction took place in North Dakota. Defendants,
both of whom are African-Americans, moved to dismiss the indictment,
claiming the government had violated their due process rights by
manipulating the transactions to create venue in North Dakota. In the
alternative, they moved for transfer of venue pursuant to Rule 21(a) and
(b) of the Federal Rules of Criminal Procedure. The district court denied
Defendants' motions for lack of evidentiary support.
Defendants argue that the district court erred in denying their
motion to dismiss on due process grounds. Relying on Batson v. Kentucky,
476 U.S. 79 (1986), Defendants claim the facts of this case give rise to
an inference that the government officers lured them to North Dakota for
the fourth transaction as a ruse to create venue in a rural district with
a significantly lower minority population than the Minnesota population.
Because the government offered no explanation for its actions, see id.
(requiring government to come forward with a neutral explanation to rebut
prima facie case of discrimination), Defendants contend the government's
conduct was outrageous, and the indictment should have
7
been dismissed. See United States v. Russell, 411 U.S. 423, 431-32 (1973).
We agree with the district court that Defendants' argument lacks
evidentiary support. Defendants cite only the 1990 census, which found
that African-Americans constitute 2.17 percent of the Minnesota population
and 0.6 percent of the North Dakota population. Defendants did not show
what the minority population figures are for the geographic area of
Minnesota from which a jury would have been picked if trial had been held
in Minnesota, nor the minority population figures for the division of the
district of North Dakota where trial was held. The variance in minority
population in the two states is insufficient alone to create an inference
that Defendants were purposefully enticed to North Dakota in order to
control intentionally the racial composition of the jury. Cf. United
States v. Garcia, 991 F.2d 489, 492 (8th Cir. 1993) (stating that a
numerical disparity alone does not establish the systematic exclusion of
a group in jury selection process). Because of the insufficient evidence,
we do not believe the first element of a Batson-type analysis has been made
out in this case, if indeed a Batson-type analysis can be applicable to a
motion for a transfer of venue. Defendants therefore have failed to meet
the high threshold for establishing outrageous government conduct in
violation of their due process rights. Cf. Bell v. United States, 48 F.3d
1042, 1044 (8th Cir. 1995) (holding that failure to offer proof of
impermissible motives for choosing to prosecute in federal forum precludes
finding of due process violation).
Defendants also challenge the district court's decisions on the Rule
21 motions. As a preliminary matter, we note that venue was proper in
North Dakota under 18 U.S.C. § 3237(a), which creates venue in any district
where the alleged criminal conduct occurs. If, however, the district court
believed Defendants would not receive a fair and impartial trial due to
existing prejudice in North Dakota, the district court was required to
transfer the
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trial. Fed. R. Crim. P. 21(a). In addition, the court also could exercise
its discretion and transfer the trial to another district in the interest
of justice and for the convenience of the parties. Fed. R. Crim. P. 21(b).
Defendants contend the district court abused its discretion in denying
their Rule 21 motions, because, as African-American defendants from a large
city, they could not obtain a fair and impartial trial as described in Rule
21(a), and a transfer of venue was in the interest of justice, Rule 21(b).
We agree with the district court that these motions, like Defendants'
motions to dismiss on due process grounds, are conclusory and lacking in
evidentiary support. Defendants support their Rule 21 challenges with no
more evidence than they cited for their due process argument. We therefore
find no abuse of discretion in the denial of the motions to transfer venue.
Rizzo v. United States, 304 F.2d 810, 817 (8th Cir.) (standard of review),
cert. denied, Nafie v. United States, 371 U.S. 890 (1962).
B. PROSECUTORIAL MISCONDUCT
During his rebuttal closing argument, the prosecutor twice referred
to Defendants as "bad people." When defense counsel objected to this as
an improper reference to Defendants' character, the district court
overruled the objection, stating that closing arguments can be
argumentative. The prosecutor then continued, "There are bad people in
the world, ladies and gentlemen. We are lucky where we live not to come
in contact with as many as there may be in other parts of the country. But
there are still some around here." (Tr. of Rebuttal Closing Arg. by Gov't
at 8, Jan. 20, 1995.) The remainder of the closing argument did not refer
to Defendants' character. Defendants contend the reference to "bad people"
constitutes prosecutorial misconduct that deprived them of a fair trial.
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We afford the district court broad discretion in controlling closing
arguments, overturning the lower court only when it clearly abuses its
discretion. United States v. Nelson, 988 F.2d 798, 807 (8th Cir.), cert.
denied, 114 S. Ct. 302 (1993). We examine prosecutorial remarks to
determine, first, whether the remarks were in fact improper, and if so,
whether, in the context of the entire trial, the remarks "``prejudicially
affected [Defendants'] substantial rights, so as to deprive [them] of a
fair trial." United States v. Malone, 49 F.3d 393, 398 (8th Cir.) (quoting
United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985)), cert.
denied, 116 S. Ct. 208 (1995). If we reach the second step, we consider:
"(1) the cumulative effect of such misconduct; (2) the strength of the
properly admitted evidence of [Defendants'] guilt; and (3) the curative
actions taken by the trial court." United States v. Eldridge, 984 F.2d
943, 946-47 (8th Cir. 1993).
We have no doubt that the prosecutor's statements in this case were
improper. Prosecutors must refrain from using methods calculated to
produce a wrongful conviction. United States v. Young, 470 U.S. 1, 7
(1985). Although a prosecutor "may strike hard blows, [the prosecutor] is
not at liberty to strike foul ones." Id. Referring to defendants as "bad
people" simply does not further the aims of justice or aid in the search
for truth, and is likely to inflame bias in the jury and to result in a
verdict based on something other than the evidence. Therefore, the remarks
were highly improper. Cf. United States v. Singer, 660 F.2d 1295, 1304
(8th Cir. 1981) (finding prosecutor's reference to "crooks" improper),
cert. denied, 454 U.S. 1156 (1982); Hall v. United States, 419 F.2d 582,
587-88 (5th Cir. 1969) (finding prosecutor's reference to "hoodlums"
improper). We further perceive a thinly veiled appeal to parochial
allegiances in the prosecutor's remarks. We should not have to remind an
Assistant United States Attorney that the Defendants are citizens of the
United States as well, and that it was a court of the United States in
which the proceedings
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were being held. The district court erred by not sustaining the objection
and by failing to take curative action.
Having determined the remarks to be improper, we must decide their
effect on the Defendants' fair trial rights using the three factor test
from Eldridge. While the conduct occurred only during the prosecutor's
final rebuttal argument, "``a single misstep' on the part of the prosecutor
may be so destructive of the right to a fair trial that reversal is
mandated." United States v. Solivan, 937 F.2d 1146, 1150 (6th Cir. 1991)
(quoted with approval in United States v. Johnson, 968 F.2d 768, 771 (8th
Cir. 1992)). Because the remark came during rebuttal arguments, defense
counsel was unable to respond except by objection.
We have indicated that an improper argument is less likely to have
affected the verdict in a case when the evidence is overwhelming than in
a case where the evidence is weak. United States v. Splain, 545 F.2d 1131,
1135 (8th Cir. 1976). While the government's evidence is probably strong
enough on the drug charges to be called overwhelming, the evidence
concerning the machine gun and the Defendants' predisposition to purchase
it is not so strong as to be called overwhelming, and indeed the
experienced district judge was convinced enough that he found at the
sentencing hearing that the Defendants had no predisposition to acquire a
machine gun. Tr. Sent. at 45 ("I know from the facts that I heard on two
or three different occasions that the Defendants had no predisposition to
acquire a machine gun."); id. at 47 ("My God, folks, we cannot permit well
meaning, capable law enforcement people to entice people to violate the law
in this way."). Finally, we note that the district judge's failure to
sustain the defense counsel's objection to the remarks (and indicating that
closing arguments are argumentative) meant that there was no curative
instruction given to neutralize the prejudicial effect of the prosecutor's
remarks.
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We believe that by twice calling the African-American Defendants "bad
people" and by calling attention to the fact that the Defendants were not
locals, the prosecutor gave the jury an improper and convenient hook on
which to hang their verdict, and we are not prepared to say that the
evidence was so overwhelming that the court's error in permitting the
improper comments to stand was harmless beyond a reasonable doubt. We
conclude that the Defendants are entitled to a new trial on all counts.
Accordingly, we reverse and remand.
Because we reverse and remand for a new trial, we deem it unnecessary
to determine if the district court was correct in its decision that both
sentencing entrapment and sentencing manipulation had occurred in this
case. We do address those issues that may arise again at a second trial.
C. EVIDENTIARY CHALLENGE
Defendants challenge the admission of each of the four quantities of
cocaine base purchased at each transaction, contending the government
failed to prove a proper chain of custody. Specifically, Defendants argue
the government failed to show what happened to the cocaine base between the
time it was mailed to a DEA laboratory for testing and the time when a DEA
forensic chemist at the laboratory tested it.
We review a district court's decision to admit evidence over an
objection for an abuse of discretion. United States v. Carpenter, 70 F.3d
520, 520 (8th Cir. 1995). A district court may admit physical evidence if
the court believes a reasonable probability exists that the evidence has
not been changed or altered. United States v. Miller, 994 F.2d 441, 443
(8th Cir. 1993). In making this determination, absent a showing of bad
faith, ill will, or proof of tampering, the court operates under a
presumption of integrity for the physical evidence. Id. Here, the
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only change in the cocaine occurred when the DEA chemist pulverized the
rocks of cocaine for testing. Because Defendants failed to aver any facts
rebutting the presumption of integrity, we find no abuse of discretion in
the admission of the cocaine base as evidence in this case.
D. RULE OF LENITY
Defendants also challenge the district court's decisions not to
authorize them to obtain expert testimony on the chemical compositions of
cocaine and cocaine base. Initially, Stephanie filed a pretrial
application asking the district court to authorize the costs of obtaining
transcripts from other cases in which experts had testified on this issue.
She explained that she intended to show that the heightened penalty for
cocaine base should be ignored under the rule of lenity, because the
distinction between cocaine and cocaine base is scientifically meaningless.
The district court denied the application, holding the transcripts were not
necessary to Stephanie's defense because our court has overwhelmingly
rejected challenges to the statutory differences in sentences imposed for
convictions involving cocaine base and cocaine. Stephanie and Keith then
filed another application, not only seeking reconsideration of the decision
regarding the transcripts, but also requesting authorization to employ a
chemistry expert to testify at their trial that cocaine and cocaine base
are the same thing. Citing the reasoning previously stated in denying the
first application, the district court denied Defendants' request. At
sentencing, the court again rejected Defendants' position regarding the
rule of lenity.
Defendants were each represented by appointed counsel pursuant to the
Criminal Justice Act (CJA), 18 U.S.C. § 3006A. Under subsection 3006A(a)
of the CJA, adequate representation includes, among other things, expert
services "necessary for the defense." If a district court finds that such
services are necessary and
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beyond a defendant's financial means, the court "shall authorize counsel
to obtain the services." Id. at § 3006A(e)(1). We afford the district
court wide discretion in deciding whether the appointment of experts would
aid defendants in preparing and presenting an adequate defense. United
States v. Moss, 544 F.2d 954, 961 (8th Cir. 1976), cert. denied, 429 U.S.
1077 (1977).
We find no abuse in the district court's conclusion that the expert
testimony sought here was unnecessary. As the district court observed, our
court has repeatedly rejected constitutional challenges to the difference
in penalties for convictions involving cocaine and cocaine base. See,
e.g., United States v. Johnson, 28 F.3d 1487, 1494 (8th Cir. 1994), cert.
denied, 115 S. Ct. 768 (1995), and Scott v. United States, 115 S. Ct. 1263
(1995); United States v. Maxwell, 25 F.3d 1389, 1396-97 (8th Cir.), cert.
denied, 115 S. Ct. 610 (1994); United States v. Buckner, 894 F.2d 975, 978-
81 (8th Cir. 1990). Furthermore, we recently rejected Defendants' argument
that 21 U.S.C. § 841(b) is unconstitutionally vague and that we should
consequently ignore its heightened penalty provisions for cocaine base
under the rule of lenity. United States v. Jackson, 64 F.3d 1213, 1219
(8th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996). The district court
therefore did not abuse its discretion by refusing to authorize Defendants'
requests, and the court's decision not to invoke the rule of lenity at
sentencing was correct.
E. ENTRAPMENT
Defendants challenge their convictions, arguing that the district
court erred in denying their motions for judgment of acquittal and their
motions for a new trial on the grounds of entrapment. We disagree.
The defense of entrapment stems from a concern that law enforcement
officials and agents should not manufacture crime.
14
United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984). To be entitled
to jury instructions on an entrapment theory, defendants must show some
evidence that the government agents implanted the criminal design in their
minds and induced them to commit the offense. United States v. Eldeeb, 20
F.3d 841, 843 (8th Cir.), cert. denied, 115 S. Ct. 269 (1994). Once a
defendant has made this showing, the government then has the burden of
proving that the defendant was predisposed to commit the crime, apart from
the government's inducement. Jacobson v. United States, 503 U.S. 540, 553-
54 (1992). An inquiry concerning predisposition "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."
Mathews v. United States, 485 U.S. 58, 63 (1988) (internal quotations
omitted). In other words, "determining a defendant's predisposition
requires examination of the defendant's personal background to see ``where
he sits on the continuum between the naive first offender and the
streetwise habitue.'" United States v. Kummer, 15 F.3d 1455, 1459 (8th
Cir. 1994) (quoting Lard, 734 F.2d at 1293).
Entrapment is generally a jury question. United States v. Pfeffer,
901 F.2d 654, 656 (8th Cir. 1990). The trial court may enter a judgment
of acquittal, however, when the evidence clearly establishes the elements
of entrapment as a matter of law. Id. The elements of entrapment as a
matter of law are: "(1) that a government agent originated the criminal
design; (2) that the agent implanted in the mind of an innocent person the
disposition to commit the offense; and (3) that the defendant committed the
criminal act at the urging of the government agent." Id. We view the facts
in the light most favorable to the government, reversing only when no
reasonable jury could have reached the guilty verdict. Id.
Considering the evidence in this case, we can easily dispose of
Defendants' contention that they were entitled to a judgment as
15
a matter of law on the drug charges. The evidence overwhelmingly proves
their predisposition to traffick drugs, and their own recorded statements
about having been robbed of a sizeable quantity of drugs in the past reveal
their already established criminal drug-dealing proclivity prior to the
government's sting operation.
We also have no difficulty disposing of Defendants' argument as to
the handgun verdicts on the § 924(c) charges. Within the first minute of
the first transaction, the Defendants indicated their interest in acquiring
specific firearms. They reiterated their interest at subsequent meetings
and even ordered particular types of handguns. They agreed to a meeting
in North Dakota, and drove there, for the specific purpose of purchasing
handguns in conjunction with a drug transaction. Under these facts, they
were not entitled to a judgment as a matter of law.
Defendants argue that even if they were predisposed to purchase
firearms, there is no evidence that they were predisposed to purchase a
machine gun prior to the government's bringing of the machine guns to the
Fargo meeting. We believe the circumstantial evidence in this case is
sufficient for a reasonable jury to conclude Defendants were predisposed,
independent of any government inducement, to possess a machine gun. See
United States v. Kummer, 15 F.3d 1455, 1457 n.7 (8th Cir. 1994) (listing
factors, some of which involve circumstantial evidence, courts have
considered in determining whether a defendant is predisposed to commit a
crime).1 Defendants were clearly engaged in closely related criminal
1
"Among the factors lower courts have looked to in
determining whether a defendant was predisposed are: (1) whether
the defendant readily responded to the inducement offered; (2)
the circumstances surrounding the illegal conduct; (3) whether
the defendant was engaged in an existing course of conduct
similar to the crime for which he is charged; (4) the
defendant's reputation; and (5) the conduct of the defendant
during the negotiations with the undercover agent." Id. (citing
United States v. Dion, 762 F.2d 674, 687-88 (8th Cir. 1985),
rev'd on other grounds, 476 U.S. 734, (1986)).
16
activity, i.e., they came to Fargo specifically to purchase firearms
illegally and to engage in established and ongoing drug trafficking, where
firearms are tools of the trade. The record in this case contains evidence
that a machine gun is a drug dealer's most prized possession. A reasonable
jury could therefore conclude Defendants are much closer on the continuum
to a streetwise habitue than a naive first offender. Additionally, Keith
Cannon's comments during the negotiations of the firearm transaction,
stressing the need to protect Defendants' drug operation and indicating
they wanted even more fire power (a weapon capable of holding 50 rounds)
than the available firearms offered, reveal the Defendants' interest in
possessing a machine gun and the intent to obtain one. Considering this
circumstantial evidence, a reasonable jury could indeed take the small
inferential step of concluding that Defendants were predisposed to
obtaining a machine gun independent of any government inducement.
F. OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE
Defendants also frame their challenge to the convictions involving
the machine gun as a violation of due process, contending that the
officers' conduct was so outrageous that the district court should have
dismissed counts six and seven of the indictment. According to Defendants,
selling them a machine gun when they had not specifically asked for one
violated their due process rights, because the officers' conduct was aimed
solely at increasing Defendants' sentence for count six by 25 years.2 See
18 U.S.C. § 924(c) (30-year mandatory consecutive sentence for using or
carrying a machine gun in relation to a crime of drug trafficking; 5-year
sentence for handguns); see Russell, 411 U.S. at 431-32 (acknowledging the
possibility of government conduct so outrageous
2
Defendants were also convicted of count seven, unlawfully
possessing a machine gun, in violation of 18 U.S.C. § 922(o).
This provision does not contain a mandatory prison term, however,
so our discussion focuses on the 18 U.S.C. § 924(c) charge.
17
and fundamentally unfair that due process principles would bar the
conviction of a defendant); Hampton v. United States, 425 U.S. 484, 491-500
(1976) (majority of Supreme Court, in concurring and dissenting opinions,
agreeing that outrageous government conduct defense may exist for a
defendant predisposed to commit a crime).
The government, on the other hand, argues that no due process
violation occurred in this case. The government further urges this court
not to unduly constrain law enforcement officials by limiting them to buy
or sell only what defendants specifically request or by placing a burden
on the government to set forth motives for each and every step of law
enforcement activities. The district court denied Defendants' motion to
dismiss counts six and seven of the indictment on due process grounds. We
review this question of law de novo. United States v. Dougherty, 810 F.2d
763, 770 (8th Cir. 1987).
The defense of outrageous government conduct is similar to, though
distinct from, the defense of entrapment. Both defenses frequently arise
in prosecutions resulting from sting and reverse-sting operations. Unlike
the entrapment defense, however, which focuses on the Defendant's
predisposition to commit the crime, the outrageous government conduct
defense focuses on the government's conduct. Kummer, 15 F.3d at 1459 n.9.
The vexing question before us is where the line lies between covert
investigative conduct by law enforcement officers that is within
constitutional bounds, and which is inherent in every sting and reverse-
sting operation, and conduct that is "``so outrageous and shocking that it
exceed[s] the bounds of fundamental fairness.'" United States v. Huff, 959
F.2d 731, 734 (8th Cir.) (quoting United States v. Johnson, 767 F.2d 1259,
1275 (8th Cir. 1985)), cert. denied, 506 U.S. 855 (1992), and Love v.
United States, 506 U.S. 855 (1992). In finding that line, we must keep in
mind that "``[t]he level of outrageousness needed to prove a due
18
process violation is quite high, and the government's conduct must shock
the conscience of the court.'" United States v. Jensen, 69 F.3d 906, 911
(8th Cir. 1995) (quoting United States v. Pardue, 983 F.2d 843, 847 (8th
Cir. 1993)), cert. denied, 1996 WL 163952, 64 USLW 3722, 64 USLW 3726 (U.S.
Apr. 29, 1996) (No. 95-1582). Further, we have noted that we "``should go
very slowly before staking out rules that will deter government agents from
the proper performance of their investigative duties.'" United States v.
Barth, 990 F.2d 422, 425 (8th Cir. 1993) (quoting United States v. Connell,
960 F.2d 191, 196 (1st Cir. 1992)). We have also stated "that
investigative officers and agents may go a long way in concert with the
individual in question without being deemed to have acted so outrageously
as to violate due process . . . ." Kummer, 15 F.3d at 1460 (quoting United
States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976)). After thorough review
of the record and the briefs, and keeping in mind the above principles, we
conclude the officers' conduct in this case was not so shocking that it
crossed over the constitutional line, violating Defendants' due process
rights. We are fortunate in this case not to have to work from a cold
record. We have availed ourselves of the opportunity to view the video
tape of the actual drugs-for-guns transaction and have studied it
carefully.
We look first at the agents' act of offering a selection of firearms
other than the type Defendants had requested. This conduct is neither
outrageous nor shocking. Defendants had told the officers on numerous
occasions that they wanted to obtain firearms. Although Defendants had
requested particular weapons, Officer Sherbrooke thrice told Defendants
that his supplier would bring a selection of about 15 weapons from which
Defendants could make their final choices. Defendants did not object to
this procedure and at least tacitly agreed to it. Under these
circumstances, we find nothing shocking, outrageous, or even surprising in
the officers' providing a selection of weapons to willing buyers. We
believe the officers were permitted to test the
19
limits of the Defendants' willingness to acquire firearms illegally in
general and were not limited just to filling the customers' order.
Having literally looked at the officers' salesmanship techniques, we
again conclude that no due process violation occurred. The Defendants
displayed their interest in the two machine guns by their comments: They
first indicated an intent to buy a machine gun in the future; they
explained their need for one to help protect their drug enterprise; and
Keith Cannon indicated he wanted to purchase a machine gun with a 50-round
magazine at the next deal. In light of these comments, we do not believe
the officers' conduct -- initially describing the machine guns and then
noting the positive attributes of the guns -- is shocking or outrageous.
The officers did not coerce or use hard-sell tactics to persuade Defendants
to purchase a machine gun. The district court described the officers'
effort as "soft-sell." (R. at 329.) Nor did the officers misrepresent the
nature or the price of the machine guns or any of the other weapons. The
officers simply kept the conversation going and responded to Keith Cannon's
expressed concern about having enough fire power to adequately protect
Defendants' drug business. The officers provided Defendants an opportunity
to purchase a more powerful weapon. We do note the officers responded to
Keith's indication that he would like to purchase a machine gun with a 50-
round capacity at the next meeting by indicating that a machine gun may not
be available then; however, in the context of the conversation, this
conduct was not so outrageous that it violated Defendants' due process
rights. It seems to us to be a technique commonly used by salespersons,
viz., buy this product now before someone else does. Like the district
court, we believe that if the defendants had decided not to buy a machine
gun, the officers "would have politely acquiesced." (R. at 328.) Because
"the mere sale by the government of contraband to one predisposed to buy
it" does not amount to a due process
20
violation, Dougherty, 810 F.2d at 710, the conduct leading to the sale was
not, in itself, outrageous.
If bringing the selection of firearms to the meeting and conducting
themselves as the officers did do not violate the Defendants' due process
rights, the question then becomes whether the difference in punishment
between the consecutive penalty for using or carrying the handguns the
Defendants did request (imprisonment for 5 years) and the heavier penalty
for using or carrying the machine gun (imprisonment for 30 years) makes the
officers' conduct outrageous. See 18 U.S.C. § 924(c)(1). Defendants argue
that it does. They would have us decide this case using a sliding scale
that measures the constitutionality of government conduct by the penalty
Congress has deemed appropriate for a particular crime. We decline to do
so. Our judicial role in analyzing the alleged outrageous government
conduct is to measure the officers' actions against the constitutional
limits of the Due Process Clause, not as the case plays out under the
penalties prescribed by Congress.3 Because the agents' conduct itself
was not unconstitutional, we conclude that the district court properly
refused to dismiss counts six and seven of the indictment on due process
grounds.
G. JURY INSTRUCTIONS
1. Jury Instruction No. 4: Entrapment
3
We recently reiterated our discomfort with reverse-sting
operations, which have great potential for abuse. United States
v. Stavig, 80 F.3d 1241, 1247 (8th Cir. 1996). This troubling
case is no exception. Drawing the line between constitutional,
zealous law enforcement in the "war against crime" and
outrageous, unconstitutional conduct that offends the fundamental
fairness of our system is no easy task. Because of the great
potential for abuse in these situations, we urge district courts
to continue giving them the most careful scrutiny and probing
examination. Id.
21
Defendants next argue that the district court erroneously submitted
the issue of inducement to the jury in the jury instructions.4 Although
a defendant who has produced evidence of inducement is entitled to jury
instructions accurately stating as a whole the law of entrapment, the
defendant has no right to particularly worded instructions. United States
v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). The jury instruction in this
case, which was based on the Eighth Circuit Model Criminal Instruction No.
9.01, correctly states the law of our circuit. United States v. Aikens, 64
F.3d 372, 375 (8th Cir. 1995), vacated and remanded for reconsideration in
light of Bailey v. United States, 116 S. Ct 501 (1995), 116 S. Ct. 1364
(1995). The instructions, when viewed as a whole, properly focus on the
question of Defendants' predisposition and place the burden on the
government to prove that element beyond a reasonable doubt.
2. Jury Instruction No. 21: Use of Firearm
Defendants also argue the district court erred in overruling their
objections to Jury Instruction No. 21 concerning the charges under 18
U.S.C. § 924(c), which prohibits the using and carrying of a firearm during
and in relation to a drug trafficking crime. The
4
Jury Instruction No. 4 reads as follows:
If either defendant did not have any previous
intent or disposition to commit the crime charged, and
was induced or persuaded by law enforcement officers or
their agents to commit that crime, then that defendant
was entrapped. On the other hand, if a defendant did
have a previous intention or disposition to commit the
crime charged, then that defendant was not entrapped,
even though law enforcement officers or other agents
provided a favorable opportunity to commit the crime,
or made committing the crime easier, or even
participated in acts essential to the crime.
If a defendant was entrapped, he or she must be
found not guilty. The government has the burden of
proving beyond a reasonable doubt that the defendant
was not entrapped.
22
court correctly instructed the jury on the elements of the crime charged
in count six (using and carrying firearms during and in relation to a drug
trafficking crime) in Instruction No. 20. The jury was told that the crime
had two elements: "One: that a defendant committed the crime of
distribution of a controlled substance, as defined in these instructions,
a drug trafficking crime; and Two: that a defendant knowingly used and
carried firearms during and in relation to the commission of either of
those crimes." The jury was further told that the government had to prove
both elements beyond a reasonable doubt and also had to prove that a
defendant was not entrapped. The court then defined for the jury in
Instruction No. 21 one meaning for "use." Instruction No. 21 stated: "An
individual who exchanges a controlled substance for a firearm ``uses' the
firearm during and in relation to a drug trafficking crime." Defendants
challenge this instruction on two grounds.
First, Defendants contend that Instruction No. 21 improperly required
the jury to find "use" if the jury found the parties had bartered drugs for
firearms. To support their argument, Defendants rely on the Supreme
Court's use of the word "may" in Smith v. United States, 508 U.S. 223
(1993). Defendants specifically quote from Smith: "[U]sing a firearm in
a guns-for-drugs trade may constitute ``us[ing] a firearm within the meaning
of § 924(c)(1).'" Id. at 237 (emphasis added). Defendants contend this
language means that not every trade of a gun for drugs or drugs for guns
is necessarily a use of the firearm within the meaning of § 924(c), and the
jury must decide whether or not "use" has occurred.
We believe the Defendants overlook the Supreme Court's holding in
Smith: "We therefore hold that a criminal who trades his firearm for drugs
``uses' it during and in relation to a drug trafficking offense within the
meaning of § 924(c)(1)." Id. at 239. Furthermore, the Court recently
revisited the issue of "use" under 18 U.S.C. 924(c) in Bailey v. United
States, 116 S. Ct. 501
23
(1995), and stated that the barter of a gun for drugs is "use" within the
meaning of § 924(c). Bailey, 116 S. Ct. at 505. After explaining that
"use" requires some showing of active employment, the Court reiterated that
this understanding of the term includes bartering a firearm. Id. at 508.
Defendants err in their analysis by failing to distinguish between a
factual finding and a legal conclusion; the factual finding of whether a
firearm became an item of barter in a particular drug transaction is a
matter for the jury, but the effect of that finding is a legal question,
one that Smith resolved. According to the Court's explanation in Bailey,
Smith stands for the legal proposition (not mere factual possibility) that
bartering a firearm is "use" under § 924(c).
We note that this case differs from Smith in that Smith involved a
defendant trading a gun for drugs, whereas Defendants in this case traded
their drugs for guns. We believe this is a distinction without a
difference. Section 924(c) prohibits using or carrying a firearm during
and in relation to "a crime of drug trafficking." Because selling cocaine
base is as much a crime of drug trafficking as buying cocaine base, and
"``use' certainly includes . . . bartering," Bailey, 116 S. Ct. at 508, we
believe that § 924(c) and the Smith holding apply with equal force to the
facts of this case. The Defendants "used" the machine gun when they
proposed to the agents that the Defendants' drugs be traded for the
weapons, and then obtained the weapons in trade.
In Smith, the Supreme Court looked to § 924(d) to help define the
scope of the term "uses" in § 924(c). We do the same and note that one
"uses" a firearm under § 924(d)(1) when one "receives" a firearm in
violation of § 922(a)(3) (generally prohibiting the transport into or
receipt of a firearm in the state of the person's residence if the firearm
was obtained outside that state by an unlicensed person). Hence, we are
of the view that a person can "use" a firearm in violation of § 924(c) by
"receiving" the firearm
24
in a drugs for weapon exchange as well as by tendering a weapon as one's
consideration in a gun for drugs trade ala Smith.
In their second challenge to Jury Instruction No. 21, Defendants
similarly contend that the instruction erroneously removed from the jury's
consideration the "during and in relation to" element of § 924(c).
Defendants correctly state that the government in this case had to prove
not only the "use" element, but also the "during and in relation to . . .
a crime of . . . drug trafficking" element. Smith, 508 U.S. 237-38. The
"during and in relation to" element was element two of the district court's
marshaling instruction No. 20. The Supreme Court held in Smith, however,
that contemporaneous bartering of weapons and firearms is use during and
in relation to the drug trafficking crime, because the firearms are traded
during and are an integral part of the transaction. Id. at 238.
The district court here submitted to the jury the issue of whether
the Defendants traded drugs for weapons and also instructed the jury on the
legal effect, under Smith, if the jury found such a trade had taken place.
Under these facts, we find no error in the district court's instruction
concerning the elements of 18 U.S.C. § 924(c).
This case differs from United States v. Gaudin, 115 S. Ct. 2310
(1995), where an element of the crime itself was entirely withdrawn from
the jury and decided by the court. Here, all the trial judge did was
define the term "uses" to mean just what the Supreme Court said it meant,
in much the same way the court defined terms for the jury like "machine
gun," "possession," or "induced and persuaded." The jury still had the
responsibility to decide whether or not each and all of the elements of the
crime had been proven beyond a reasonable doubt. It still had to decide
what actually happened in the motel room between the Defendants and the
25
officers, and whether or not either Defendant used a firearm in violation
of the statute.
H. CONGRESS'S POWER UNDER COMMERCE CLAUSE
Defendants next argue that Congress exceeded its power under the
Commerce Clause when it enacted 21 U.S.C. §§ 841 and 924(c).
This argument is foreclosed by United States v. Brown, 72 F.3d 96, 96 (8th
Cir. 1995), petition for cert. filed, (Mar. 27, 1996) (No. 95-8470).
We have considered Defendants' remaining arguments and find them to
be either without merit or moot by the reversal.
III.
We reverse the judgments of the district court because the prosecutor
engaged in misconduct, depriving the Defendants of their right to a fair
trial. We remand the case for a new trial as to both Defendants in
accordance with this opinion.
JOHN R. GIBSON, Circuit Judge, concurring in part and dissenting in part.
I concur in the holding that prosecutorial misconduct compels a new
trial in this case. I respectfully dissent from that part of the court's
opinion regarding the "use" of firearms under 18 U.S.C. § 924(c) (1994).
The district court instructed the jury that "[a]n individual who
exchanges a controlled substance for a firearm ``uses' the firearm during
and in relation to a drug trafficking offense." I believe this materially
misstates the law, and directs a verdict on the firearm charges.
26
The court today approves this instruction by expanding the Supreme
Court's holdings in Smith v. United States, 508 U.S. 223 (1993), and Bailey
v. United States, 116 S. Ct. 501 (1995), and neglecting the distinction
between using a firearm to obtain drugs and using drugs to obtain a
firearm. In its opinion, the court states that trading drugs for guns
instead of trading guns for drugs, as was the case in Smith, amounts to a
distinction without a difference. Slip op. at 24. The court concludes
that the Cannons used the guns within the meaning of the statute "when they
proposed to the agents that the Defendants' drugs be traded for the
weapons, and then obtained the weapons in trade." Id. I believe this
conclusion goes beyond the "``ordinary or natural' meaning" of the term
"use" and allows for a conviction under section 924(c)(1) without "active
employment of the firearm" by the defendant. Bailey, 116 S. Ct. at 506.
Such a holding is prohibited by the Supreme Court's recent interpretation
of the term "use" in section 924(c). Id.
Looking to Smith for guidance, the Supreme Court recently reiterated
that "[t]he word ``use' in the statute must be given its ``ordinary or
natural' meaning, a meaning variously defined as ``[t]o convert to one's
service,' ``to employ,' ``to avail oneself of,' and ``to carry out a purpose
or action by means of.'" Bailey, ll6 S. Ct. at 506 (quoting Smith, 508
U.S. at 229 (citing Webster's New International Dictionary of English
Language 2806 (2d ed. 1949) and Black's Law Dictionary 1541 (6th ed.
1990))). The central holding of Bailey, 116 S. Ct. at 506-509, is that the
government must show active employment of the firearm so as to establish
use under section 924(c). The Court stated that Smith faced the question
of "whether the barter of a gun for drugs was a ``use,' and concluded that
it was." Bailey, 116 S. Ct. at 505. The Court then referred specifically
to bartering "with a firearm," id. at 507, and "bartering" a firearm, id.
at 508, which language denotes that the object bartered, and thus used, was
the firearm.
27
Smith, 508 U.S. at 237, held that trading a firearm for drugs was
using the firearm within the meaning of section 924(c). In drawing this
conclusion, the Court turned to section 924(d) for assistance in
interpreting section 924(c). Id. at 234-36. The Court noted that "one who
transports, exports, sells, or trades a firearm ``uses' it within the
meaning of section 924(d)(1)--even though those actions do not involve
using the firearm as a weapon." Id. at 235. Further, "using a firearm"
must mean the same thing in both section 924(c)(1) and section 924(d). Id.
The court today relies on the fact that section 924(d) provides for
forfeiture when "unlicensed receipt of a weapon from outside the State, in
violation of section 922(a)(3)," occurs. In addition, forfeiture may also
occur when one receives stolen firearms in violation of section 922(j).
See Smith, 508 U.S. at 234 n.*. Certainly, one who receives an illegal
firearm must forfeit that weapon under section 924(d). This, however,
offers no support for concluding that a person receiving a firearm in
exchange for drugs "used" the firearm within the meaning of section 924(c),
so as to require a mandatory minimum sentence, here thirty years. This was
not the question decided in Smith, and such a conclusion cannot withstand
scrutiny in light of the Court's ruling in Bailey.
Smith, 508 U.S. at 234-35, examined all of section 924(d)5 in
deciding that transporting, exporting, selling, and trading were all "use"
within the meaning of section 924(d)(1). This is consistent with Bailey,
116 S. Ct. at 506-07, as each of these activities involves the "active
employment" of a firearm.
5
Unlicensed receipt of weapons from outside the state and
receipt of stolen firearms were only two of the numerous weapon
offenses resulting in forfeiture and considered by the Court in
Smith, 508 U.S. at 234 n.*.
28
Bailey constrains the holding in Smith and prohibits the broad
interpretation used by the court today. Smith and Bailey can only be
reconciled by limiting Smith to its express holding: When a person who has
a firearm trades that firearm in exchange for drugs, that person has used
the firearm to obtain drugs. The case simply cannot stand for the converse
of this proposition.
The Cannons here possessed drugs that they traded for firearms.
After receiving the firearms, they were promptly arrested leaving the motel
with the firearms in hand. While the Cannons actively employed the drugs
in order to obtain the firearms, there was no "evidence sufficient to show
an active employment of the firearm by the defendant." Bailey, 116 S. Ct.
at 506. Thus, the Cannons did not "use" the firearms within the meaning
of section 924(c)(1),6 and the district court erred in instructing the jury
that exchanging a controlled substance for a firearm constituted "use" of
a firearm.
I would reverse and remand on this issue as well.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
6
I also believe that it cannot be said that the Cannons used
or carried the firearms "during and in relation to" a drug
trafficking offense. I do not treat this issue in detail because
the court's direction that a person exchanging drugs for a
firearm uses it during and in relation to the drug trafficking
offense essentially directs a verdict for the government, which
is plainly error.
29