Doc 988_govt Opposition To Entrapment Jury Instruction

Case 3:07-cr-00289-M

Document 988

Filed 09/20/2009

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

UNITED STATES OF AMERICA v. D’ANGELO LEE (02)

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ECF No. 3:07-CR-289-M

GOVERNMENT’S RESPONSE IN OPPOSITION TO LEE’S REQUEST FOR AN ENTRAPMENT JURY INSTRUCTION Lee seeks to have the jury instructed on the defense of entrapment. Lee is entitled to no such instruction and the government objects to inclusion in the jury charge of any instruction related to the entrapment of Lee. “Entrapment operates through a burden shifting regime. The defendant must first make out a prima facie case that the government’s conduct created a substantial risk entrapment. This requires the defendant to make a prima facie showing of (1) his lack of predisposition to commit the offense and (2) some governmental involvement or inducement more substantial than simply providing opportunities or facilities to commit the offense.” United States v. Theagene, 565 F.3d 911, 918 (5 th Cir. 2009)(internal citations and quotations omitted). A defendant who meets this burden is entitled to the entrapment instruction and the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the offense before the government approached him. Id. (Citations omitted). Lee fails to make a prima facie showing as to either requirement. Regarding Lee’s lack of predisposition to commit the offense of extortion, there is simply no evidence Response - Page 1

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from any source, certainly from Lee, that would indicate his lack of predisposition to engage in extortion. The facts presented by the government clearly show the opposite. Lee fails to realize that Fisher went the FBI because Fisher was being extorted by Lee. Fisher was the victim of Lee, Hill and Reagan’s conduct before Fisher ever went to the FBI and before Fisher ever began working with the FBI. The record is certainly not void of evidence relative to Lee’s predisposition to seek and demand things of value from tax credit affordable housing developers – it just proves the opposite of what is required in the first prong – that Lee was in fact predisposed to commit the offense in question. Well before the end of November 2004, when Fisher began cooperating with authorities, Lee had already been involved in nearly identical conduct with Brian Potashnik. The difference between Potashnik and Fisher is that Potashnik agreed to pay while Fisher went to the FBI. There is a total failure on the part of Lee to make the necessary showing on the first prong.1 Lee was also intricately involved in an elaborate money laundering scheme designed to cover the bribe payments made by Potashnik. Lee cannot meet his burden on the second prong either. While Lee is quick to criticize the actions of Bill Fisher and the FBI here, he again fails to realize that his conduct started well before Fisher went to the authorities. Lee also ignores the fact that

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Lee continues his predisposition to engage in bribery, extortion and self dealing in 2005 in at least three other areas: (1) by marrying an official support letter from the City of Dallas for Herb Frison’s development to Herb Frison signing a construction management contract with LCG; (2) by attempting to require Richard Pace to sign a construction management contract with LCG and then later attempted to charge Pace $2,500.00 a month through the zoning process on a Pace development; and (3) threatening to use code enforcement against Stanley Spiegel in connection with the sale of the LancasterKiest Shopping Center. Response - Page 2

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he searched Fisher for recording equipment on two occasions. True, Fisher’s words to Lee were explicit and criminal, but they weren’t designed to induce Lee to engage in conduct he wouldn’t otherwise engage in. The statements were designed to give Lee the opportunity to walk away or call the authorities - neither of which he did. Regarding inducement by the government, “[i]t does not constitute entrapment for government agents to merely conduct undercover operations or otherwise employ artifice and stratagem to catch criminals. Nonetheless, courts have identified inducement when government agents harass or threaten a defendant, or take actions designed specifically to take advantage of the defendant’s weaknesses. Inducement appears where there is some governmental involvement and inducement more substantial than simply providing an opportunity or facilities to commit the offense.” Id. at 922 (internal citations and quotations omitted). In United States v. Gendron, 18 F.3d. 955, 961-962 (1 st Cir. 1994), the court listed some examples of improper inducement which supported a basis for sending the entrapment issue to the jury. Those case specific examples of when an entrapment instruction is appropriate are situations where the government: (1) used “intimidation” and “threats” against a defendant's family, United States v. Becerra, 992 F.2d 960, 963 (9th Cir.1993); (2) called every day, “began threatening” the defendant, and were belligerent, United States v. Groll, 992 F.2d 755, 759 (7th Cir.1993); (3) engaged in “forceful” solicitation and “dogged insistence until [defendant] capitulated,” Rodriguez, 858 F.2d at 815; (4) played upon defendant's sympathy for informant's common narcotics experience and withdrawal symptoms, Sherman, 356 U.S. at 373, 78 S.Ct. at 821; (5) played upon sentiment of “one former war buddy ... for another” to get liquor (during prohibition), Sorrells, 287 U.S. at 440-41, 53 S.Ct. at 212; (6) used “repeated suggestions” which succeeded only when defendant had lost his job and Response - Page 3

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needed money for his family's food and rent, United States v. Kessee, 992 F.2d 1001, 1003 (9th Cir.1993); (7) told *962 defendant that she (the agent) was suicidal and in desperate need of money, United States v. Sullivan, 919 F.2d 1403, 1419 & n. 21 (10th Cir.1990). Id. As numerous cases have noted through the years, the district court should be on the lookout for traps set for the “unwary innocent” versus traps sets for the “unwary criminal.” Lee was not the “unwary innocent” in November of 2004. He was, in fact, the opposite - a wary criminal. The government’s conduct here merely provided Lee with the opportunity to continue his ongoing criminal conduct regarding demands made upon developers. The court should not instruct this jury on entrapment. Respectfully submitted, JAMES T. JACKS UNITED STATES ATTORNEY /s/ Chad E. Meacham Chad E. Meacham Assistant United States Attorney Texas State Bar No. 00784584 1100 Commerce Street, Third Floor Dallas, Texas 75242 Telephone: 214.659.8716 Facsimile: 214.659.8727 Email: [email protected]

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Certificate of Service I hereby certify that on September 20, 2009, I electronically filed the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to all attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. I hereby certify that I have served the foregoing document by mailing a copy to the following individuals: N/A s/ Chad E. Meacham Chad E. Meacham Assistant United States Attorney

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