USA v. Shamonte Hall and Karinder Gordon. 09-2682, 09-2470.
In the spring of 2008, appellant Shamonte Hall believed he had stumbled upon a great criminal opportunity. A disgruntled drug courier asked if he would help him rob a drug stash house under armed guard. For the help, the courier told him, Hall and his crew would get a share of the several kilograms of cocaine hidden in the stash house, which they could then sell for a profit.
It was too good to be true. The drug courier was actually an undercover agent, the stash house was a fiction, there were no drugs to steal, and Hall and his crew were arrested shortly before they could carry through with the plan. Hall was charged with various drug and firearm offenses. At the end of a jury trial, Hall was convicted on all charges
In these consolidated appeals, Hall challenges his convictions, arguing that the district court erred by refusing to instruct the jury on the affirmative defense of entrapment.
As part of an undercover investigation targeting individuals involved in armed home invasions, a confidential informant introduced Hall to an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. The purpose of this introduction was for the agent to present Hall an opportunity to commit an armed robbery.
At their first meeting, the agent told Hall that he wanted to rob a group of drug dealers he worked for in the North Chicago area. The agent claimed to be angry with those dealers because the last time he had made deliveries for them, he had asked for extra money to pay for surgery for his son. The dealers had refused to give him that money, so the story went, which angered him so much that he decided to steal the dealers' cocaine.
After Hall agreed to participate in the robbery, the agent told Hall to arrange for his crew to meet with the agent to go over their plan.
On the afternoon of the planned robbery, the under-cover agent, Hall, Rodney Ray, and appellant Karinder Gordon retrieved two guns from Gordon's apartment and drove to Foss Park in North Chicago to wait for a telephone call from the supposed drug dealers saying where the drugs were stored. When they arrived at Foss Park, the agent parked his truck, pretended to get a telephone call, and walked away. He then gave a signal to a law enforcement team that arrested Hall, Gordon, and Ray.
Hall, Gordon, and Ray were tried jointly. The government's primary witness was the undercover agent, who described in detail the undercover sting operation. The defendants presented no evidence in their defense. The jury found Hall guilty of attempted possession of cocaine with intent to distribute, possession of a weapon in furtherance of a drug trafficking crime, and being a felon in possession of a firearm.
One key issue was whether Hall could present an entrapment defense. Before trial, the government filed a motion in limine to preclude the presentation of any evidence or argument regarding entrapment. The district court granted the motion, but Hall nevertheless requested that the jury be instructed regarding entrapment. The court denied that request.
Hall argues that the district court erred by refusing to instruct the jury on the entrapment defense. A defendant is entitled to a jury instruction on his theory of defense if: (1) the requested instruction is a correct statement of the law; (2) the evidence supports the theory of defense at issue; (3) the defense is not part of the govern-ment's charge; and (4) the failure to give the instruction would deprive the defendant of a fair trial. United States v. Millet, 510 F.3d 668, 675 (7th Cir. 2007)
We review de novo a district court's decision not to give a proffered instruction. Millet, 510 F.3d at 675.
The decisive issue here is whether the evidence sup-ported the existence of the entrapment defense. To raise an entrapment defense, a defendant must make a showing of both elements of that defense: (1) that he was induced by a government actor to commit the crime at issue; and (2) that he was not predisposed to commit that crime. Id.
When analyzing a defendant's predisposition to commit a crime, we consider: (1) the defendant's character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government. United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999).
No individual factor controls the issue of predis-position, but the most important factor is whether the defendant was reluctant to commit the offense. United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir. 1983),
The evidence for the defense need not be compelling, but there must be some evidence to support it. The defendant in a criminal case is entitled to have the jury consider any defense theory that is supported by the law and that has some reasonable foundation in the evidence. United States v. Briscoe, 896 F.2d 1476, 1512 (7th Cir. 1990).
The evidence presented in this trial showed beyond dispute that Hall was predisposed to commit the crimes of which he was convicted. In regard to Hall's character, we note that he pled guilty to armed robbery in 2003. As to the second and third factors of the predisposition analysis, although the government (rather than some other party) initially suggested the criminal activity, Hall was certainly willing to participate in the criminal enterprise for a profit. The drugs were to be split evenly among the agent, Hall, and Hall's crew.
Regarding the nature of the government inducement, we disagree with Hall's contention that the government preyed on his pity for the undercover agent's fictitious sick son. The agent claimed to have a sick son who had previously needed surgery, but he never said that he needed money to pay for that surgery. Rather, the agent made clear that he wanted to rob the drug dealers because, by failing to give him extra money when he was trying to pay for his son's surgery, the dealers had disrespected him and "pissed me off."
In any event, we do not accept the theory that Hall acted out of compassion. It is not as if Hall ever offered to share his cut of the expected profits to help pay for the fictional surgery. If Hall had been acting out of anything other than greed, he might have offered to give the agent a larger share of the profits rather than dividing the drugs evenly among the entire crew. A modern-day Robin Hood he was not. The agent merely provided a plausible cover story to explain his own motives. Hall was not subjected to any unusual or unfair persuasion.
We also disagree with Hall's contention that the sizeable potential profit from the proposed robbery of cocaine was an extraordinary inducement. We rejected a similar argument in Millet, which also involved a planned heist of illegal drugs.
We find nothing in the record to support the most important factor in our predisposition analysis: whether Hall was reluctant to participate in the proposed heist.
When the agent first approached Hall to see if he was interested in the proposed robbery, Hall insinuated that he and his crew would "go in there [and] kill everybody" so that they would not have to worry about "repercussions." Asked if he would commit the robbery, Hall responded not with hesitance or reluctance but with an unambiguous "Hell yeah." And when asked if the crew would have trouble going in "blastin', " Hall responded: "No, if you got [the] right price, you can get a motherfucker knocked off." As if those statements were not enough, Hall showed his lack of reluctance when he said that "when it's ready to go down there ain't gonna be no hesitation about it." Hall's own recorded words made clear that he was ready to commit the robbery even if it meant that he had to take a few lives in the process.
The evidence presented at trial would not have allowed a reasonable jury to find that Hall was reluctant to participate in the planned robbery. He jumped at the chance, and no extraordinary profits were used to induce his participation. The lack of evidence supporting an entrapment defense is not surprising. Hall neither testified in his own defense nor presented any evidence of his lack of predisposition.
Except in unusual circumstances that we have trouble imagining, a defendant would seem to need to present some affirmative evidence of entrapment. See United States v. Mathews, 485 U.S. 58, 65 (1988), quoting Demma, 523 F.2d at 985. In this case, with only the testimony and evidence presented in the government's case, there simply is no evidence that Hall was not predisposed to join in the proposed robbery plan. The district court did not err by refusing to give a jury instruction on entrapment.
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