United States v. Justin Spentz

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 10-10134
v.  D.C. No.
2:08-cr-00164-KJD-
JUSTIN SPENTZ, GWF-4
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 10-10180
Plaintiff-Appellee, D.C. No.
v.  2:08-cr-00164-KJD-
STEVEN GOLDEN, GWF-3
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
March 15, 2011—San Francisco, California
Filed July 28, 2011
Before: J. Clifford Wallace, Ferdinand F. Fernandez, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
9715
UNITED STATES v. SPENTZ 9717
COUNSEL
William M. Kent, Jacksonville, Florida, for appellant Justin
Spentz.
Benjamin C. Durham, Las Vegas, Nevada, for appellant Ste-
ven Golden.
Elizabeth A. Olson, Assistant United States Attorney, Las
Vegas, Nevada, for the appellee.
OPINION
CLIFTON, Circuit Judge:
This appeal presents the issue as to when, in a criminal
trial, a district court must give the jury instructions requested
9718 UNITED STATES v. SPENTZ
by a defendant regarding an entrapment defense. Defendants
Justin Spentz and Steven Golden appeal from their convic-
tions for conspiracy to interfere with commerce by robbery in
violation of 18 U.S.C. § 1951(a), conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846,
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A), and aiding and
abetting in violation of 18 U.S.C. § 2. Defendants argue that
the district court erred in refusing to provide an entrapment
instruction to the jury. There was, however, insufficient evi-
dence presented at trial to support a finding by the jury that
defendants were induced by the government to commit the
crimes, one of the two necessary elements of an entrapment
defense. As a result, we conclude that the district court did not
err by refusing to give the entrapment instruction, and we
affirm.
I. Background
In September 2007, agents of the U.S. Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) opened an under-
cover storefront operation under the guise of a functioning tat-
too shop. The purpose of the undercover operation was to
identify dangerous individuals with violent proclivities. Once
such an individual was identified, the undercover agents
offered him the opportunity to engage in a crime. The fic-
tional crime was intended to be dangerous enough that the
average law abiding citizen would decline the offer but with
a sufficient reward that a person with criminal proclivities
might accept.
In February 2008, a confidential informant introduced the
ATF Special Agent who was posing as the owner of the tattoo
shop to Deon’te Reed. The agent identified Reed as a danger-
ous individual who had previously been arrested for armed
robbery and led a group of criminals that committed home
burglaries. It was determined that Reed was an appropriate
target for the undercover operation.
UNITED STATES v. SPENTZ 9719
On April 17, 2008, Reed arrived at the tattoo shop with two
other men, one of whom was defendant Justin Spentz. They
were introduced to another undercover ATF Special Agent
pretending to be a disgruntled drug courier. This agent told
the men about a drug operation that periodically utilized stash
houses to store large quantities of cocaine. The agent told the
men that there was approximately $2.5 million worth of
cocaine in the stash house and it was typically guarded by two
men, only one of whom was known to be armed. The agent
proposed that the men rob the stash house, steal the drugs, and
split the proceeds with him. Reed verbally indicated that they
would assist with the robbery. Spentz did not object.
On May 15, 2008, defendants Spentz and Steven Golden
arrived at the Ice House parking lot, which was the predeter-
mined meeting location. Defendants, along with Reed, met
with undercover ATF agents. The agent pretending to be the
drug courier reiterated the plan and defendants indicated their
approval. The agent then directed them to a nearby warehouse
to prepare for the robbery. ATF agents arrested defendants
upon arrival at that location.
Spentz and Golden were tried together but separately from
Reed. During the trial, both denied knowing about the plan to
rob a drug house. Spentz testified that Reed had called him on
the 15th and asked him to come to the Ice House parking lot.
When asked why Reed wanted him to come to the Ice House,
Spentz testified that Reed just said it was “important” and that
he “thought it was just like any other time, meet up and, you
know — and do other things.” Golden testified that Spentz
told him that Reed wanted to meet at the Ice House but did
not know why. Spentz denied hearing anything said by the
undercover officers to Reed and said that Reed never
explained why he wanted Spentz to meet him. Golden testi-
fied that he never got out of the car at the Ice House. Accord-
ing to Spentz, he and Golden followed Reed and the officers
to the second location because they were “still trying to prior
[sic] knowledge of what he wanted me to come meet him for,
9720 UNITED STATES v. SPENTZ
like, what was my purpose, like, what did he want.” Similarly,
Golden, who was the one driving, testified that he followed
Reed and the officers because he “was just curious . . . we
drove all the way up here and we just drove up here for
nothin’? Like, what was the reason for us just to come up
here?”
Based on the evidence presented by the government that
both Spentz and Golden were told about the plan by the
undercover officers, Spentz and Golden sought an entrapment
jury instruction as an alternative theory to their claims of inno-
cence.1 They argued that the government’s evidence provided
sufficient basis for a jury to find that they had been entrapped,
even though their own testimony did not support such a claim.
The district court denied the request for an entrapment
instruction, holding that there was insufficient evidence to
support the instruction. The district court also indicated that
it believed giving the instruction would be inconsistent with
defendant’s repeated denial of knowledge of the robbery. The
defendants were convicted, and they brought these appeals.
II. Discussion
Before turning to the merits of defendants’ claim, we
address the standard of review to be applied. Both defendants
and the government have suggested that the question of what
standard to apply to the district court’s denial of the defen-
dants’ requested jury instruction is “subject to conflicting pre-
cedent within our circuit.” United States v. Kessee, 992 F.2d
1001, 1003 (9th Cir. 1993). While this may have been the
case at one point, we have subsequently resolved this confu-
sion. See United States v. Heredia, 483 F.3d 913, 921 (9th
Cir. 2007) (en banc).
1
Defendant Golden did not explicitly join Spentz’s request for an
entrapment instruction, but the government concedes that the instruction
was discussed with respect to both defendants during conference in cham-
bers. The issue will be considered with respect to both defendants.
UNITED STATES v. SPENTZ 9721
As we explained in Heredia, “[w]hether a jury instruction
was properly given presents two questions, one primarily fac-
tual, the other purely legal.” Id. If our court is reviewing a
legal question, such as “[w]hether the substance of the
instruction itself is correct,” our review is de novo. Id. On the
other hand, “whether an instruction should be given in the
first place . . . is mostly a factual inquiry” which is reviewed
for abuse of discretion. Id.; see also United States v.
Perdomo-Espana, 522 F.3d 983, 986 (9th Cir. 2008) (“When
the parties dispute the sufficiency of a proposed jury instruc-
tion’s factual foundation, we review for abuse of discretion.”).
Here, the district court denied the entrapment instruction
because it found there was insufficient evidence to support the
instruction. This is a factual question, which is reviewed for
abuse of discretion.
[1] Turning to the merits, it is well established that “a
defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a rea-
sonable jury to find in his favor.” Mathews v. United States,
485 U.S. 58, 63 (1988). “Only slight evidence will create the
factual issue necessary to get the defense to the jury, even
though the evidence is weak, insufficient, inconsistent, or of
doubtful credibility.” United States v. Becerra, 992 F.2d 960,
963 (9th Cir. 1993) (internal quotation marks omitted).
[2] While it can be slight, there still must be some evi-
dence demonstrating the elements of the defense before an
instruction must be given. The entrapment defense has two
elements: “(1) the defendant was induced to commit the crime
by a government agent, and (2) he was not otherwise predis-
posed to commit the crime.” United States v. Barry, 814 F.2d
1400, 1401 (9th Cir. 1987). We have held that “[a] defendant
is not entitled to have the issue of entrapment submitted to the
jury in the absence of evidence showing some inducement by
a government agent and a lack of predisposition by the defen-
dant.” United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.
1983); see also United States v. Busby, 780 F.2d 804, 806 (9th
9722 UNITED STATES v. SPENTZ
Cir. 1986) (“The trial court will instruct on entrapment only
if the defendant presents some evidence of both elements of
the entrapment defense.”).2
[3] Here, defendants have failed to point to any evidence
of inducement presented at trial by any party. There is no dis-
pute that the government proposed the idea of committing the
robbery to defendants and their accomplices, but “the fact that
government agents merely afford opportunities or facilities
for the commission of the offense does not constitute entrap-
ment.” Sherman v. United States, 356 U.S. 369, 372 (1958)
(internal quotation marks omitted). Rather, “[a]n ‘induce-
ment’ consists of an ‘opportunity’ plus something else—
typically, excessive pressure by the government upon the
defendant or the government’s taking advantage of an alterna-
tive, non-criminal type of motive.” United States v. Poehl-
man, 217 F.3d 692, 701 (9th Cir. 2000).
Both before the district court and on appeal defendants
argued that they were induced to commit the crime because
the government’s plan presented them with the opportunity to
2
A defendant is not required to admit that he committed the crime in
order to be entitled to an entrapment instruction. “[A] defendant in a crim-
inal proceeding may assert inconsistent defenses.” United States v.
Demma, 523 F.2d 981, 985-86 (9th Cir. 1975). This means that a criminal
defendant may assert innocence and, in the alternative, entrapment. Id.Additionally, the evidence supporting the entrapment defense need not be
presented by the defendant. Even when a defendant presents no evidence
of entrapment, it “may nonetheless become an issue at his trial if (1) the
Government’s case-in-chief suggests that the defendant who was not pre-
disposed was induced to commit the crime charged, or (2) a defense or a
government witness gives evidence suggesting entrapment.” Id. at 984.
Therefore, to the extent the district court denied the entrapment instruction
here because entrapment was inconsistent with the defendants’ claims of
innocence or because the only evidence of entrapment came from the gov-
ernment’s case, it erred. However, the district court’s denial of the instruc-
tion was primarily based on there being insufficient evidence of
inducement. As explained below, taking the evidence presented by the
government into consideration, there was still no evidence of inducement.
UNITED STATES v. SPENTZ 9723
make a substantial amount of money by committing an armed
robbery. Defendants contend that the offer of a potentially
large reward—approximately $2.5 million worth of cocaine—
for relatively minor risk, is sufficient to fulfill the “something
else” prong of inducement. Defendants misunderstand the
nature of the “something else” that gives rise to inducement.
[4] Defendants’ argument fails because the potentially
large reward they claim serves as the “something else” was
the product of the crime they agreed to commit. The drugs
and money they would recover from the robbery were not an
alternative, non-criminal motivation; they were the prototypi-
cal criminal motivation for robbery. See United States v.
Layeni, 90 F.3d 514, 518 n.2 (7th Cir. 1996) (“Indeed, the
reward hoped for and received by Johnson (drugs and perhaps
money) is the typical benefit of participating in this type of
criminal enterprise, a form of reward that is not sufficient, by
itself, to establish inducement.” (internal quotation marks
omitted)). The entrapment defense is meant to prevent the
government from convincing someone who will not be per-
suaded by criminal motivations to commit a crime. See Sher-
man, 356 U.S. at 372 (“To determine whether entrapment has
been established, a line must be drawn between the trap for
the unwary innocent and the trap for the unwary criminal.”).
When the motivation presented by the government is the typi-
cal benefit from engaging in the proposed criminal act, there
is no reason to be concerned that an innocent person is being
entrapped.3
3
Nor was the crime proposed in this case one which an average law-
abiding citizen would be likely to engage in even for a substantial reward.
Defendants describe the proposed crime as low-risk. The crime was, how-
ever, armed robbery, and it seems unlikely that an average law-abiding cit-
izen would engage in armed robbery under any circumstances. The
specifics of the proposed crime here, as described by the agents to the
defendants, would seem to make it even more unlikely. There clearly
would have been substantial risk involved. First, the defendants were told
that at least one person guarding the stash house was armed. The defen-
dants had no way of knowing whether there would be other armed guards.
9724 UNITED STATES v. SPENTZ
[5] Poehlman demonstrates the types of promises that con-
stitute inducement. There, the undercover government agent
“played on Poehlman’s obvious need for an adult relationship,
for acceptance of his sexual proclivities and for a family” to
induce him to commit a crime. Poehlman, 217 F.3d at 702.
These were all non-criminal motivations that the government
used to induce Poehlman to engage in criminal activity. If,
hypothetically, defendants were anti-illegal drug activists, and
the undercover agent had suggested that defendants rob the
stash house in order to disrupt an illegal drug business, that
might have been the kind of non-criminal motivation that
could potentially give rise to inducement. See Jacobson v.
United States, 503 U.S. 540, 552 (1992) (government con-
ceded inducement when it “wav[ed] the banner of individual
rights” which “exerted substantial pressure on petitioner to
obtain and read [illegal] material[s] as part of a fight against
censorship and the infringement of individual rights”). But the
promise of a large payout from committing a robbery is not
grounds for establishing inducement.4
[6] Since the only evidence of inducement that defendants
Also the defendants were told that there was no way to case the stash
house before the robbery. This meant that the defendants were walking
into a drug stash house without any idea of who or what was inside. More-
over, they were relying solely on the word of another criminal whom they
had just met and had little, if any, reason to trust. Even if the robbery was
successful, the defendants believed the victim of the fake robbery was a
Mexican drug cartel, which raised the potential for danger and retribution.
This was anything but a low-risk crime.
4
We acknowledge that we have previously listed “promises of reward”
as a form that government inducement can take. See United States v.
Garza-Juarez, 992 F.2d 896, 909 (9th Cir. 1993) (“Government induce-
ment may take the form of persuasion, fraudulent representations, threats,
coercive tactics, harassment, promises of reward, or pleas based on need,
sympathy or friendship.” (internal quotation marks omitted)). As
explained in Poehlman and Layeni, the reward promised cannot be the
criminal reward but must be some other, non-criminal reward that the indi-
vidual receives for committing the crime.
UNITED STATES v. SPENTZ 9725
offer is the size of the potential pay-out from the robbery,
there is a dearth of support for a showing of inducement. In
the absence of such evidence, the district court did not abuse
its discretion in denying defendants’ requests for an entrap-
ment jury instruction.
AFFIRMED.