Doc 983_greene Brief On Entrapment

Case 3:07-cr-00289-M

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA

VS.

D’ANGELO LEE et. al., (2)

§ § § § § § §

CAUSE NO. 3:07-CR-289-M

DEFENDANT LEE’S REQUEST FOR ENTRAPMENT JURY INSTRUCTION AND BRIEF IN SUPPORT OF REQUEST TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, D’ANGELO LEE, Defendant in the above-referenced case, and files his Request for Entrapment Jury Instruction and Brief in Support of Request. Defendant requests that the Court instruct the jury on the defense of entrapment, and shows unto the Court as follows: I. ARGUMENTS AND AUTHORITIES Common justice requires a jury instruction on entrapment when the evidence shows that the government implanted in the mind of an innocent person the disposition to commit an alleged offense. Sorrells v. U.S., 287 U.S. 435, 451 (1932). In Sorrells, the petitioner was indicted on two counts of possessing and selling alcohol in violation of the National Prohibition Act. Id. at 438. The petitioner pleaded not guilty, and relied on the defense of entrapment at trial. Id. The trial court refused to submit the issue of entrapment to the jury. Id. The petitioner was found guilty and appealed to the 4th Circuit Court of Appeals, who affirmed his conviction. Id. at 439. The U.S. Supreme Court granted certiorari to decide the issue of whether the evidence was sufficient for a jury instruction on entrapment. Id.

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The crucial evidence of entrapment in this case showed that a government agent went to the petitioner’s home with three other individuals. Id. The government agent was introduced as a tourist. Id. After initial conversation, the government agent made two requests for alcohol from the petitioner, to which the petitioner stated that he did not have any. Id. On the third request by the agent for alcohol, the petitioner left his home and came back with a half gallon of alcohol that the agent paid $5 for. Id. At trial, the agent testified that he was the first and only person to mention anything about obtaining alcohol from the petitioner. Id. at 439-40. He also testified that his sole purpose was to prosecute the petitioner for obtaining and selling alcohol. Id. at 440. The petitioner only called as witnesses the three individuals that accompanied the agent to the petitioner’s home. Id. These witnesses essentially corroborated the agent’s story. Id. One witness added that he had never heard of the petitioner being in the liquor business. Id. Additionally, at least four of the witnesses at trial testified to the petitioner’s good character. Id. The government called other witnesses to show that the petitioner had a reputation of a rum runner. Id. at 441. However, “there was no evidence that the petitioner had ever possessed or sold any intoxicating liquor prior to the transaction in question.” Id. In its analysis, the U.S. Supreme Court stated that it is well settled that officers or employees of the government can afford opportunities or facilities for the commission of an offense by using “artifice and stratagem” to catch criminals. Id. However, government officials may not originate a criminal design and induce an innocent person to commit the alleged crime in order to prosecute that person. Id. at 442. The Court held that the evidence was sufficient for a jury instruction on entrapment because the crime was instigated by the government agent, and the petitioner had no previous disposition to commit the crime. Id. at 441. Furthermore, the

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agent lured the petitioner to commit the crime by repeated and persistent solicitation. Id. Therefore, the Court reversed the judgment of the 4th Circuit Court of Appeals. Id. at 452. “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.” Sherman v. U.S., 356 U.S. 369, 372 (1958). In Sherman, the petitioner was indicted for three sales of narcotics. Id. at 370. At trial, the jury was given an instruction on entrapment, and the jury found the petitioner guilty on all counts. Id. The petitioner appealed, and the 2nd Circuit Court of Appeals reversed the conviction on the basis of an improper entrapment instruction. Id. In the second trial, the petitioner argued the defense of entrapment again. Id. at 370-71. The jury was given a new entrapment instruction, and the jury still convicted the petitioner. Id. at 372. The 2nd Circuit Court of Appeals affirmed the conviction. Id. The U.S. Supreme Court granted certiorari to determine whether the defense of entrapment was established as a matter of law. Id. at 370. The crucial evidence of entrapment in this case showed that a government informant met the petitioner at a doctor’s office where both were being treated for narcotics addiction. Id. at 371. The government agent and the petitioner had several accidental meetings. Id. At one such meeting, the agent asked the petitioner if he knew a good source of narcotics because he was not responding to treatment. Id. From the beginning, the petitioner tried to avoid the issue. Id. It was not until after several requests from the agent that the petitioner finally acquiesced and sold narcotics to the agent. Id. The U.S. Supreme Court began its analysis by stating that the Sorrells case firmly establishes the defense of entrapment in federal courts. Id. at 372. The Court then described the function of law enforcement as being the prevention of crime and apprehension of criminals. Id. Thus, the Court reasoned that “Congress could not have intended that its statutes were to be

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enforced by tempting innocent persons into violations.” Id. Therefore, when traps are set for the “unwary innocent,” the entrapment defense is established. Id. at 372-73. In this case, the petitioner called no witnesses at trial, so the Court based its decision on the undisputed testimony of the prosecution’s witnesses. Id. at 373. The Court held that it was obvious that the informant induced the petitioner. Id. The informant testified that it took several meetings before the petitioner succumbed to his pressure tactics. Id. Nonetheless, the government argued that the petitioner showed a readiness to accede to the informant’s request. Id. at 375. The Court held that other than the petitioner’s record of past convictions, the government presented no evidence that the petitioner showed a willingness to sell narcotics. Id. There was no evidence that the petitioner himself was in the trade or that he made a profit on any sale to the informant. Id. As to the petitioner’s prior convictions of illegally selling and possessing narcotics, the Court held that those convictions were “insufficient to prove that the petitioner had a readiness to sell narcotics at the time the informant approached him.” Id. Thus, the Court reversed the judgment of the 2nd Circuit Court of Appeals, ruling that the government induced an innocent party to commit a crime that he otherwise would not have committed, which constitutes entrapment as a matter of law. “Even if a defendant denies one or more elements of a crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews v. U.S., 485 U.S. 58, 62 (1988). In Mathews, the petitioner was indicted for accepting a bribe in exchange for an official act. Id. at 59. At trial, the court refused to instruct the jury as to entrapment because the petitioner would not admit to all of the elements of the offense. Id. The jury convicted the petitioner, and the 7th Circuit Court of Appeals affirmed the conviction. Id. The U.S. Supreme Court granted certiorari to determine whether a

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defendant in a federal criminal prosecution who denies commission of a crime can also have the jury instructed on the affirmative defense of entrapment. Id. In this case, the petitioner was employed by the Small Business Administration (SBA). Id. at 60. The petitioner specifically worked in a program in which the SBA helped small businesses participate in government contracts as subcontractors. Id. The informant in this case was the president of a company that was a participant in this program. Id. The informant began assisting the government because he believed that the petitioner was not providing his company program benefits because he had not given the petitioner a loan. Id. The petitioner was placed under surveillance by the FBI, and at a meeting between the petitioner and the informant, the petitioner accepted the loan, and the FBI arrested him at that point. Id. at 61. In its analysis, the U.S. Supreme Court stated the essential elements for entrapment from the Sorrells case, which are government inducement and lack of predisposition on the part of the defendant to engage in the criminal conduct. Id. at 63. The Court also stated that the question of entrapment is generally one for the jury, not the court. Id. Additionally, the Court held that generally a defendant is entitled to an instruction as to “any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Id. The evidence of entrapment in this case was focused on the testimony of the informant and the petitioner. Id. at 61. The government alleged that the petitioner accepted the loan in exchange for cooperation in SBA matters. Id. The government played tape recordings of conversations between the informant and the petitioner in which they discussed the loan. Id. Additionally, the informant testified that he and the petitioner had an agreement that the loan would result in favorable SBA benefits. Id. The petitioner testified that he accepted the money from the informant only as a personal loan, unrelated to any of his duties at the SBA. Id. Based

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on this evidence, the Court stated that a reasonable jury could find that there was evidence of inducement and lack of predisposition. Id. at 62. However, the Court left that issue for the 7th Circuit Court of Appeals. In reversing the Court of Appeals judgment, the Court only ruled that a defendant can deny one or more elements of a crime and still seek to have the jury instructed on entrapment if the evidence is sufficient for a reasonable jury to find entrapment. Id. “When the government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul the law, the courts should intervene.” Jacobson v. U.S., 503 U.S. 540, 553-54 (1992). In this case, the U.S. Supreme Court held that the government’s actions in prosecuting the petitioner amounted to entrapment. Id. at 550. Using creative methods, government agents had continually induced the petitioner to order child pornography for approximately three years before he acquiesced. Id. The Court ruled that a jury could not find beyond a reasonable doubt that the petitioner possessed the requisite predisposition to obtain child pornography prior to the government’s investigation. Id. at 553. “The defendant must make a prima facie showing of his lack of predisposition to commit the offense and some governmental involvement and inducement more substantial than simply providing opportunities or facilities to commit the offense.” U.S. v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). A defendant who meets this burden is entitled to an entrapment instruction, and the burden then shifts to the government to “prove beyond a reasonable doubt that the defendant was disposed to commit the offense before the government first approached him.” Id. In this case, the 5th Circuit Court of Appeals held that the evidence warranted an entrapment instruction because the petitioner met his burden of showing that he lacked the predisposition to commit the crime of bribing a government agent. Id. at 920-21. The petitioner also showed

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evidence of government inducement that went beyond merely providing the opportunity to commit the crime. Id. Therefore, the evidence was sufficient to permit a reasonable jury to find entrapment. Id. The Court also provided more detail for evidence that can constitute predisposition and inducement. Id. at 919, 922. For instance, evidence of predisposition can include active, enthusiastic participation, or a demonstration of expertise in the commission of the offense. Id. at 919. A lack of predisposition can include a “lack of prior interest or experience related to the crime, significant hesitation or unwillingness, or attempts to return discussion to lawful conduct.” Id. at 920. As for government inducement, persuasion, mild coercion, or government agents persisting in encouraging criminality after a defendant rejects overtures, can all constitute sufficient inducement to permit jury consideration of entrapment. Id. at 922. In this case, there is an abundance of evidence that government agent Bill Fisher induced Defendant, D’Angelo Lee, to commit a crime. Special Agents Allen Wilson and Don Sherman testified that they instructed Bill Fisher to “reengage” Defendant to determine if he was committing illegal acts. Bill Fisher also testified that “reengaging” Defendant was one of his duties as a government agent. Wilson, Sherman, and Fisher also testified that the FBI specifically gave Fisher instructions regarding how to lead the conversations with Defendant. Fisher was told by the FBI to make statements that would assure Defendant that he was involved in a criminal enterprise so that Defendant had a chance to “walk away.” Like the defendants in the Sorrells, Sherman, Jacobson, and Theagene cases, the Defendant in this case was approached by a government agent for the sole purpose of securing a conviction. Bill Fisher was the only person in the beginning that made any references to illegal conduct. Fisher constantly contacted Defendant in order to get him to admit to the commission

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of a crime. If Fisher had not “reengaged” Defendant after Defendant left voicemails for Fisher requesting birthday party donations, there is no evidence that has been produced during the Government’s case that Fisher and Defendant would have ever had any future communications. Furthermore, the requests by Defendant of birthday party contributions, scholarship funds to his cousin, or his referral of minority subcontractors, are not in and of themselves illegal. Therefore, there is no evidence that Defendant was predisposed to commit bribery or extortion. There is no evidence that Defendant was readily prepared to commit the crimes of bribery and extortion before being approached by government agent Bill Fisher. There is no evidence of any prior crimes committed by Defendant relating to bribery or extortion, or any other crime. There has also been testimony as to Defendant’s good character. Thus, based on the tape recordings in evidence and testimony by various witnesses, the Defendant can make a prima facie case of entrapment because there is evidence that he was induced by a government agent, and that he was not predisposed to commit the crimes of bribery or extortion. Therefore, as stated in the Theagene case, once the Defendant makes a prima facie case of entrapment, the burden shifts to the prosecution to show beyond a reasonable doubt that Defendant was disposed to commit the offense before the government first approached him. In this case, the Defendant has plead not guilty to the crimes of bribery and extortion, but he also wants his attorney to argue to the jury that if it concludes otherwise, that it should consider whether the government induced him into committing a crime that he otherwise would not have committed. As in the Mathews case, after showing that there is evidence which a reasonable jury could find entrapment, Defendant is entitled to an instruction on entrapment even though he has plead not guilty to the crimes charged.

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WHEREFORE, PREMISES CONSIDERED, the Court should instruct the jury on the defense of entrapment. Respectfully submitted, BY: /s/ Douglas C. Greene DOUGLAS C. GREENE GREENE LAW FIRM 2111 N. Fielder Road, Suite #1 Arlington, Texas 76012 (817) 622-8806 TELEPHONE (817) 887-1875 FAX State Bar No. 49173

CERTIFICATE OF SERVICE I hereby certify that on September 18, 2009, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF System, which will send notification of such filing to all counsel of record.

/s/ Douglas C. Greene DOUGLAS C. GREENE