11-2763(L)
United States of America v. Cromitie (Williams)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
Heard: November 5, 2012 Decided: August 22, 2013
Docket Nos. 11-2763(L), 11-2884(con), 11-2900(con), 11-
3785(con)
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UNITED STATES of AMERICA,
Appellee,
v.
JAMES CROMITIE, AKA Abdul Rehman, AKA Abdul Rahman, DAVID
WILLIAMS, AKA Daoud, AKA DL, ONTA WILLIAMS, AKA Hamza, LAGUERRE
PAYEN, AKA Amin, AKA Almondo,
Defendants-Appellants.
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Before: JACOBS, Chief Judge, and NEWMAN and RAGGI, Circuit
Judges.
Appeal from the July 8, 2011, judgments of the United States
District Court for the Southern District of New York (Colleen
McMahon, District Judge), sentencing four defendants to terms of
25 years after their convictions by a jury of a terrorism plot
to launch missiles at military airplanes and bomb two synagogues.
Appellants contend primarily that entrapment was established
as a matter of law, that outrageous government conduct violated
the Due Process Clause, and that the prosecution’s knowing use
of perjured testimony violated the Due Process Clause. The Court
unanimously rejects (1) the claims of David Williams, Onta
Williams, and Laguerre Payen as to entrapment as a matter of law,
(2) all defendants’ claims of outrageous government conduct and
knowing use of perjured testimony in violation of the Due Process
Clause, and (3) all defendants’ other claims; the Court, by a
vote of two to one, rejects the claim of James Cromitie as to
entrapment as a matter of law.
Affirmed. Chief Judge Jacobs concurs in part and dissents
in part; he would uphold Cromitie’s claim of entrapment as a
matter of law and reject all of Cromitie’s other claims and
reject all claims of the other defendants.
Adam S. Hickey, Asst. U.S. Atty., New
York, NY (Preet Bharara, U.S. Atty.,
Patrick Ian McGinley, Jason P.W.
Halperin, Iris Lan, Asst. U.S.
Attys., New York, NY, on the brief),
for Appellee.
Clinton W. Calhoun, III, White Plains,
NY (Calhoun & Lawrence, LLP, White
Plains, NY, on the brief), for
Appellant James Cromitie.
Theodore S. Green, White Plains, NY
(Green & Willstatter, White Plains,
NY, on the brief), for Appellant
David Williams.
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David A. Lewis, Federal Defenders of
New York, Inc. Appeals Bureau, New
York, NY (Mark B. Gombiner, New
York, NY, on the brief), for
Appellant Onta Williams.
Sam Braverman, Bronx, NY (Jennifer B.
Arlin, Bronx, NY, on the brief), for
Appellant Laguerre Payen.
JON O. NEWMAN, Circuit Judge.
Table of Contents
Background ................................................ 5
The Charged Offenses ................................. 5
Facts of the Offenses ................................ 6
Defense Evidence ..................................... 18
Verdicts and Sentencing .............................. 18
Discussion ................................................ 18
I. Entrapment ............................................. 19
(A) Elements of Entrapment ........................... 19
(1) Design ...................................... 23
(2) Time of Predisposition ...................... 28
(3) Type of Evidence Relevant to
Predisposition .............................. 30
(B) Entrapment as a Matter of Law ................... 33
(1) Cromitie .................................... 33
(a) Inducement ............................. 33
(b) Predisposition ......................... 38
(2) David Williams, Onta Williams, and
Payen ....................................... 47
(a) Inducement ............................. 47
(b) Predisposition ......................... 48
(C) Jury Charge on Entrapment ....................... 50
II. Outrageous Government Conduct ........................ 53
(A) Government’s Role in Planning
the Crimes ...................................... 56
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(B) Exploiting Religious Views ...................... 57
(C) Exploiting Professed Love ....................... 59
(D) Monetary and Other Benefits ..................... 60
(E) Aggregation of Persuasion Techniques ............ 62
III. Prosecution’s Knowing Use of Perjured Testimony .... 63
(A) False Statements Unrelated to the
$250,000 Offer ................................. 64
(B) False Statements Concerning the $250,000 ....... 67
(1) Falsity of the $250,000 Testimony ......... 67
(2) The Prosecution’s Knowledge of the
Falsity ..................................... 68
(3) The Prosecution’s Imputed Knowledge ........ 70
(4) Likelihood of Affecting the Jury ........... 71
IV. Other Claims ......................................... 72
(A) Admission of Video Evidence ..................... 72
(B) Vouching for Witness’s Credibility .............. 72
(C) Jury’s Exposure to Extra-Record Evidence ........ 73
(D) Sentencing ...................................... 75
Conclusion .............................................. 78
This is an appeal by four defendants convicted of planning
and attempting to carry out domestic terrorism offenses involving
a plot to launch missiles at an Air National Guard base at
Stewart Airport in Newburgh, NY, and bomb two synagogues in the
Bronx. The appeal primarily presents issues concerning the
extent to which a government informant may lawfully urge the
commission of crimes, issues framed as claims of entrapment as
a matter of law and outrageous government conduct in violation
of the Due Process Clause. The appeal also presents an issue
concerning the falsity of portions of the informant’s trial
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testimony. These issues arise on an appeal by defendants-
appellants James Cromitie, David Williams, Onta Williams, and
Laguerre Payen from the July 8, 2011, judgments of the District
Court for the Southern District of New York (Colleen McMahon,
District Judge). We reject the defendants’ claims of entrapment
as a matter of law, outrageous government conduct in the
instigation of the offenses, and knowing use of perjured
testimony, as well as all other claims raised on appeal. We
therefore affirm.
Background
The charged offenses. All the charged offenses resulted
from an elaborate sting operation conducted by the FBI using an
undercover informant. An indictment filed in June 2009, charged
the four defendants with eight offenses: Count One -- conspiracy
to use weapons of mass destruction within the United States (18
U.S.C. § 2332a); Counts Two, Three, and Four -- attempt to use
weapons of mass destruction near or at the Riverdale Temple, in
the Bronx, the Riverdale Jewish Center (a synagogue) in the
Bronx, and the New York Air National Guard Base at Newburgh,
respectively (18 U.S.C. § 2332a); Count Five -- conspiracy to
acquire and use anti-aircraft missiles (18 U.S.C. § 2332(g));
Count Six -- attempt to acquire and use anti-aircraft missiles
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(18 U.S.C. § 2332(g)); Count Seven -- conspiracy to kill officers
and employees of the United States (18 U.S.C. §§ 1114, 1117);
Count Eight -- attempt to kill officers and employees of the
United States (18 U.S.C. §§ 1114, 2).
Facts of the offenses. The facts are detailed in two
comprehensive opinions of the District Court, denying the
defendants’ post-trial motions. See United States v. Cromitie,
781 F. Supp. 2d 211 (S.D.N.Y. 2011) (“Cromitie I”), and United
States v. Cromitie, No. 09 Cr. 558(CM), 2011 WL 1842219 (S.D.N.Y.
May 10, 2011) (“Cromitie II”). We assume familiarity with those
opinions and recount at this point only the salient facts that
the jury was entitled to find with respect to the defendants’
criminal conduct. We set forth facts concerning the claims of
entrapment as a matter of law, outrageous government conduct, and
knowing use of perjured testimony in the discussion of those
claims.
A government confidential informant, Shahed Hussain,
conducted an undercover investigation for several months in 2008
and 2009. Hussain is a Pakistani national who was granted asylum
by the United States in the mid-1990s based on his claim of
political persecution in Pakistan. In 2003, Hussain was
convicted of fraud based on his misconduct as a translator
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working at the Motor Vehicles Bureau in Albany. To avoid being
deported, Hussain agreed to cooperate with the Government’s
investigation of another individual. In the spring of 2007,
Hussain became a paid informant of the FBI and started working
in the lower Hudson Valley. As the District Court stated,
Hussain’s goal was to “locate disaffected Muslims who might be
harboring terrorist designs on the United States.” Cromitie II,
2011 WL 1842219, at *2.
By June 2008, Hussain had been attending services at a
mosque in Newburgh at the direction of the FBI. During that
time, the FBI provided a house for Hussain that contained
concealed video and audio recording equipment. In addition, the
FBI provided Hussain with recording devices for his person and
his car. Hussain presented himself at the mosque as a wealthy
Pakistani businessman with knowledge of Islamic teachings.
During a period of several months, Hussain cultivated a
friendship with Cromitie, who subsequently recruited the other
three defendants.
Cromitie, 42 years old, was, in Judge McMahon’s words, “an
impoverished man,” Cromitie I, 781 F. Supp. 2d at 226, who
sustained himself by committing petty drug offenses for which he
had repeatedly been caught and convicted. In addition, he worked
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a night shift at a local Walmart store, earning less than $14,000
per year.
On June 13, 2008, Cromitie walked up to Hussain in the
parking lot of the mosque. Hussain testified that Cromitie, in
an Arabic accent, introduced himself as Abdul Rahman, and claimed
that his father was from Afghanistan. After a short
conversation, Hussain drove Cromitie home from the mosque. On
the way, Cromitie asked Hussain about violence in Afghanistan
that had been reported recently on television. When Hussain
asked Cromitie if he would like to travel to Afghanistan,
Cromitie responded by saying he would love to. He then said, in
the first indication of his proclivity to terrorism, that he
wanted “to die like a shahid, a martyr”1 and “go to paradise,”
Trial Transcript (“Trial Tr.”) 681, and immediately thereafter
said, “I want to do something to America.” Id. at 682. As he
said these words, he pointed his right index finger in the air
in a gesture Hussain testified is used by “somebody[] in radical
Islam” to mean “taking an oath in front of Allah to do take part
of [sic] crime or Jihad act they want to do.” Id. at 682. During
1
Hussain testified that a “shahid” was a “person who dies
in Islam as a soldier in jihad or soldier in warfare.” Trial
Transcript 681.
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that first encounter, Hussain told Cromitie that a lot of
military planes flew from what was later identified as Stewart
Airport to take arms and ammunition to Afghanistan and Iraq.
Hussain met with Cromitie three more times in the summer of
2008. Hussain testified that during these meetings Cromitie said
that he hated Jews and Americans and that he would kill the
President of the United States “700 times because he’s an
antichrist.” Id. at 686. After learning of these remarks, the
FBI instructed Hussain to tell Cromitie that he, Hussain, was a
representative of a terrorist group in Pakistan, Jaish-e-Mohammed
(“JeM”). On July 3, 2008, Hussain, following these instructions,
Hussain told Cromitie he was flying to Pakistan to meet with JeM
and asked Cromitie if he wanted to attend. Cromitie said he did
and then volunteered that he wanted to join JeM.
Hussain recorded four conversations with Cromitie in the
fall of 2008. In a conversation recorded on October 19, Cromitie
said that American Muslims could do something similar to the
attacks of September 11, 2001, stating:
“If, if the Muslims was to want the United States down,
believe me, we can do it. With the regular Muslims
here, all somebody has to do is give a good fatwa to
the brothers and let, make sure they understand. You,
they taking down our Islamic countries. What do we do
to make that stop? So, we start taking something down
here. You understand what I’m saying?”
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Joint Appendix (“JA”) 2824.2 In a conversation recorded later
that day, Cromitie said, “I have zero tolerance for people who
disrespect Muslims.” Id. at 2836.
In a conversation recorded on October 29, Cromitie said,
“When the call come[s], I’m gonna go, ‘Allahu akbar,’ and I’m
gone. There’s nothing no one can do. I’m gonna go all the way.
There’s no, no turn back.” Id. at 2903. On November 14, Hussain
told Cromitie that he could obtain guns and rockets.
In late November, Hussain drove Cromitie to a conference of
the Muslim Alliance of North America in Philadelphia. On
November 28, during the ride to the conference, Cromitie, in a
recorded conversation, boasted that he had stolen three guns from
Walmart, two .25 automatics and a snub nose, and had “stashed”
them. Also during the ride, Cromitie indicated that he could put
“a team together,” id. at 3229, and said he was “gonna try to put
a plan together,” id. at 3240. Earlier that day, Cromitie for
the first time expressed interest in buying “stuff” from Hussain.
Hussain had previously told Cromitie that he could get “[a]ny
2
Verbatim quotations from audio and videotaped recordings
are cited to the Joint Appendix, and those from recorded
telephone conversations are cited to the Government’s
Supplemental Appendix. Transcripts of these recordings were
introduced as trial exhibits but not read into the trial
transcript.
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stuff that you need,” specifically guns and missiles. Id. at
3146.
On the second day of the conference, November 29, Cromitie’s
talk became more specific after Hussain asked Cromitie if his
“team” had ever “thought about doing something here [in the
United States].” Id. at 3285. Cromitie responded by saying that
his team never considered doing that, but that he had and that
he had “been wanting to do that since I was 7.” Id. at 3286.
Cromitie claimed that he had bombed a police station in the Bronx
in 1994, id. at 3296, but wanted to do something “a little
bigger,” id. at 3304, because he had “to make some type of noise
to let them know,” id. at 3302.
Hussain asked Cromitie what targets he wanted to hit in the
New York area, and Cromitie said that he wanted to “hit” the
George Washington Bridge. Id. at 3294. When Hussain said that
bridges are too hard to hit, Cromitie replied, “Hit some small
spots . . . . This had to be a terrorist act.” Id.
Later, while Hussain and Cromitie were watching television
coverage of a terrorist attack in Mumbai and the funeral of a Jew
who had been killed in that attack, Cromitie said:
“Look at the Jewish guy. You’re not smiling no more,
you fucker. I hate those bastards. . . . I hate those
motherfuckers. Those fucking Jewish bastards . . . .
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I’d like to get one of those. I’d like to get a
synagogue. Me. Yeah, personally.”
Id. at 3316.
Hussain recorded conversations with Cromitie on three
occasions in December 2008. On December 5, Cromitie, after
quoting a “brother” saying, “‘I think it’s time we make jihad
right here in America,’” id. at 3449, said, “I agree with the
brother. . . . [I]t makes sense to me,” id. at 3450. On December
17, when Hussain said, “Let’s pick a target,” Cromitie suggested
“Stewart Airport.” Id. at 3536.
On December 18, Hussain traveled to Pakistan and returned
eight and one-half weeks later.
In a meeting with Cromitie on February 23, 2009, Hussain
asked, “The synagogue, where is it in Bronx or in Brooklyn?” Id.
at 3623. Cromitie replied, “[T]here’s one in [t]he Bronx, I mean
you got like, uh two or three of them in Brooklyn.” Id. The next
day, Hussain bought Cromitie a camera and drove him to Stewart
Airport where they conducted surveillance. While there, Cromitie
took photos. Cromitie was recorded stating, “Imagine if we hit
all the planes in one spot.” Id. at 3845. He also told Hussain
he was going to speak to another man about being a lookout and
would “talk to some of the guys” and tell them they would receive
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$25,000 to “just look out.” Id. at 3655.
Six weeks passed without any contact between Cromitie and
Hussain. On April 5, 2009, Cromitie reached out to Hussain. In
a recorded conversation, he told Hussain of his financial
problems and said, “I have to try to make some money brother.”
Id. at 4486. Hussain responded, “I told you, I can make you
250,000 dollars, but you don’t want it brother. What can I tell
you?” Id. At this, Cromitie answered, “Okay, come see me
brother. Come see me.” Id. We discuss this conversation in
detail below. See Part I(B)(1)(a).
On April 7, Hussain told Cromitie that JeM had already taken
significant steps to support the operation, stating, “The missile
was ready.” Id. at 3698. Later in that conversation Cromitie
said he would “take . . . down” “a whole synagogue of men.” Id.
at 3717. Cromitie and Hussain then discussed the need for
lookouts.
On April 10, Hussain picked Cromitie up at Cromitie’s house
and was introduced to a man standing in front of the house. This
man, known as “Daoud,” was defendant David Williams. All three
men drove to the Riverdale section of the Bronx, where Cromitie
photographed the Riverdale Jewish Center and the Riverdale
Temple. Later that day Cromitie took photographs of airplanes
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at Stewart Airport.
On April 23, the three met again. Cromitie asked at what
distance could an IED (improvised explosive device) be detonated.
When Hussain said 100 miles and explained, “You can sit down
here, and it blows up there,” id. at 3846, Cromitie and David
Williams celebrated by bumping fists. When Hussain said he would
train Cromitie how to use a rocket launcher, David Williams said
that he wanted to participate. The next day, the three drove to
Stewart Airport. David Williams asked Cromitie for the camera
and took surveillance pictures. Later, they discussed taking
rooms at a nearby Marriott Hotel to hide out after the planned
attacks. After Hussain outlined the attack plans, David Williams
said the airport attack would be the “tricky one,” compared to
the synagogue attack, which would be “smooth” because the bombs
would be detonated remotely from a hotel. Id. at 3914.
In less than a week, Cromitie and David Williams recruited
defendants Onta Williams and Laguerre Payen. On April 25, in a
recorded telephone call David Williams told Cromitie to call
Hussain and “[t]ell him I got the other brother.”3 Govt. Supp.
Appx. 512. By April 28, when all four defendants met with
3
This was most likely Onta Williams.
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Hussain, Payen had been recruited. At this meeting, when
Cromitie explained that “Yahudi” means “Jews,” Payen said, “Yeah
you told me that,” JA 4079, which permitted the jury to infer
that Cromitie had recruited Payen.
Bombing two synagogues and launching Stinger surface-to-air
missiles at Stewart Airport was specifically discussed at this
meeting. Payen asked how long every job would take; Hussain told
him ten minutes. Cromitie suggested that all four defendants and
Hussain identify themselves in phone calls by code names:
“Charles” for Cromitie, “Manny” for David Williams, “Brooks” for
Onta Williams, “Bond” for Payen, and “Tony” for Hussain. They
also agreed on other code words: “eggs” for phones, “the pilon”
for the Bronx, “beans” for rockets, “birds” for planes, and
“[t]he trains are coming” for “the police are coming.” Id. at
4090-91. Payen confirmed that all he had to say was that the
trains are coming. Cromitie ended the meeting by saying, “This
is going down in history.” Id. at 4104.
Previously David Williams told Cromitie that he (David)
wanted to be armed. On April 30, David Williams purchased a
semi-automatic pistol. Two days before, Onta Williams had tried
to purchase two guns. On May 1, Payen took Hussain to the
apartment of a person Payen said was willing to sell guns, but
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there was no response to a knock at the door.
Later on May 1, Hussain and all four defendants drove to
Stewart Airport to conduct more surveillance. All agreed on the
best spot from which to launch Stinger missiles. They also
discussed the locations where Onta Williams and Payen would be
stationed as lookouts. The whole group then drove to Hussain’s
house and discussed plans for the attack.
On May 6, Hussain drove Cromitie, David Williams, and Payen
to a warehouse in Stamford, CT, where the FBI had stored three
fake bombs and two fake Stinger missiles. Hussain instructed
them how to launch the missiles and how to wire the detonating
devices for the bombs. After one missile and the bombs were
loaded into Hussain’s car, the four drove to a storage facility
in New Windsor, NY, where Hussain had rented storage lockers.
Cromitie, David Williams, and Hussain unloaded the weapons and
placed them in the lockers while Payen acted as a lookout. Id.
at 927. The group then hugged each other and shouted, “Allahu
akbar, God is great.” Id. Later that night, Payen explained to
Onta Williams how the missile operated. At a meeting on May 8,
Cromitie told the other defendants that there were 25 thousand
balls (ball bearings) in a bomb and that “once them balls go off,
they go anywhere.” Id. at 4281. At the end of this meeting, the
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defendants agreed to carry out the attacks on May 20.
On May 13, all four defendants drove with Hussain to the
Riverdale section of the Bronx to conduct surveillance,
specifically of the Riverdale Jewish Center. The defendants got
out of the car and walked around looking for security cameras on
top of nearby buildings. On May 19, Hussain and the four
defendants conducted a final surveillance of Stewart Airport,
during which Onta Williams changed the locations of the lookouts
for the Airport. The group returned to Hussain’s house to review
the plans, which were to pick up the bombs at the storage
facility, drive to Riverdale to wire them, leave them in cars
that the FBI had placed in front of the synagogues, drive back
to Newburgh, retrieve the missiles, fire them at the military
planes, and detonate the bombs using their cell phones.
On May 20, the four defendants drove with Hussain to the New
Windsor storage facility, where they picked up the three bombs
and drove to Riverdale. Acting according to their plan, they
stopped near where the two cars had been parked by the FBI for
the operation, a Pontiac directly in front of the Riverdale
Temple and a Mazda directly in front of the Riverdale Jewish
Center. Hussain let Onta Williams, David Williams, and Payen out
to take up their positions as lookouts. Cromitie then placed one
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of the fake bombs in the trunk of the Pontiac and two others on
the back seat of the Mazda. Moments later, FBI agents arrested
all four defendants.
Defense evidence. Cromitie presented two witnesses. The
personnel manager of the Walmart store where Cromitie had worked
testified that the store had stopped selling long guns before the
time when Cromitie had told Hussain he had stolen guns for resale
and that Cromitie stopped showing up for work in February 2009
and was subsequently fired. A neighbor of Cromitie’s testified
that Cromitie had sold him the camera that Hussain had purchased
and had given to Cromitie for surveillance. The other defendants
presented no evidence.
Verdicts and sentencing. After eight days of deliberation,
the jury found Cromitie and David Williams guilty on all counts
and found Onta Williams and Payen guilty on all counts except
Count Eight, which charged attempt to kill officers and employees
of the United States. The District Court sentenced each
defendant to a 25-year mandatory minimum sentence.
Discussion
The defendants make three principal claims on appeal: (1)
the evidence established entrapment as a matter of law; (2) the
Government’s conduct in persuading Cromitie and, through him, the
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other defendants to participate in the plan was outrageous
conduct in violation of the Due Process Clause; and (3) the
prosecution knowingly presented false testimony of its undercover
informant Hussain in violation of the Due Process Clause.
I. Entrapment
(A) Elements of Entrapment
“[A] valid entrapment defense has two related elements:
government inducement of the crime, and a lack of predisposition
on the part of the defendant to engage in criminal conduct.”
Mathews v. United States, 485 U.S. 58, 63 (1988); see Sherman v.
United States, 356 U.S. 369, 376-78 (1958). “Predisposition, the
principal element in the defense of entrapment, 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, 485 U.S. at 63 (citations and
internal quotation marks omitted). “[T]he fact that officers or
employees of the Government merely afford opportunities or
facilities for the commission of the offense does not defeat the
prosecution.” Jacobson v. United States, 503 U.S. 540, 548 (1992)
(internal quotation marks omitted). The defendant has the burden
of showing inducement, see United States v. Bala, 236 F.3d 87,
94 (2d Cir. 2000); United States v. Williams, 23 F.3d 629, 635
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(2d Cir. 1994), and, if inducement is shown, the prosecution has
the burden of proving predisposition beyond a reasonable doubt,
see United States v. Al-Moayad, 545 F.3d 139, 153 (2d Cir. 2008);
Bala, 236 F.3d at 94.
Before 1932, government inducement sufficed to preclude a
valid conviction on the ground of entrapment.4 In that year, the
Supreme Court’s first decision on the entrapment defense,
Sorrells v. United States, 287 U.S. 435 (1932), began the process
of defining the circumstances under which government inducement
alone would no longer establish the defense of entrapment.
Sorrells focused the entrapment inquiry on a defendant’s state
of mind, rather than on only the government’s inducement: “‘When
the criminal design originates, not with the accused, but is
conceived in the mind of the government officers, and the accused
is by persuasion, deceitful representation, or inducement lured
into the commission of a criminal act, the government is estopped
by sound public policy from prosecution therefor.’” Id. at 445
(emphasis added) (quoting Newman v. United States, 299 F. 128,
4
See United States v. Becker, 62 F.2d 1007, 1008 (2d Cir.
1933); Lucadamo v. United States, 280 F. 653, 657-58 (2d Cir.
1922). The Supreme Court has noted that the first case to
recognize this version of entrapment was Woo Wai v. United
States, 223 F. 412 (9th Cir. 1915). See United States v. Russell,
411 U.S. 423, 428 n.5 (1973).
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131 (4th Cir. 1924)).
The next year, Judge Learned Hand observed that the Supreme
Court in Sorrells had not spelled out “precise limits” as to when
government inducement alone would no longer suffice to preclude
a valid conviction. See United States v. Becker, 62 F.2d 1007,
1008 (2d Cir. 1933). Filling the void, he postulated the three
circumstances, any one of which would become the accepted means
in this Circuit of establishing a defendant’s predisposition: “an
existing course of similar criminal conduct; the accused’s
already formed design to commit the crime or similar crimes; his
willingness to do so, as evinced by ready complaisance.”5 Id.
5
A troublesome aspect of two of the three means of
proving predisposition, rarely if ever discussed in reported
opinions, is the inevitable tension between upholding the
entrapment defense when the defendant does not have in his mind
a pre-existing design of criminal conduct and rejecting the
defense when he makes a prompt response to a government
invitation to commit a crime. When a government agent inquires
whether a person is willing to commit a crime (and accompanies
the inquiry with sufficient persuasion to constitute inducement),
a prompt “yes” could be forthcoming either from a person who had
long entertained the idea of committing the proposed or a similar
crime and was only waiting for the opportunity to do so, or from
a person who had never before in his life contemplated the
proposed or a similar crime. The promptness of the “yes” does
not distinguish between the mental states of these two people.
Why then do we permit a jury to reject the entrapment
offense when a person promptly says “yes” to a government-
suggested crime? Perhaps the answer is that we rely on the jury,
as the conscience of the community, to convict those it believes,
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(emphasis added). Twenty years later, when Judge Hand endeavored
to quote verbatim the Becker formulations, he changed
“complaisance” to “compliance.”6 See United States v. Sherman,
200 F.2d 880, 882 (2d Cir. 1952). Although the wording has
slightly changed since Sherman, these three circumstances have
remained in this Circuit the three ways available to the
Government to prove a defendant’s predisposition.7 See United
States v. Al Kassar, 660 F.3d 108, 119 (2d Cir. 2011); Al-Moayad,
545 F.3d at 154; United States v. Salerno, 66 F.3d 544, 547 (2d
based on all the evidence, would (or at least are likely to)
commit the crime if solicited by someone other than a government
agent and acquit those it believes would not (or at least are not
likely to) commit the crime if so solicited. And, of course, as
with all jury decisions (other than an acquittal), a court
retains the authority to police the outer limits of the jury’s
role by ruling in an extreme case, like Jacobson, that entrapment
has been established as a matter of law.
6
Although both words signify agreement, they have slightly
different meanings. “Complaisance” usually means “ready
disposition to please”; “compliance” usually means “yielding to
pressure, demand, or coercion.” See Webster’s Third New
International Dictionary (1993).
7
Other circuits have identified additional factors that
might be helpful in determining a defendant’s predisposition.
For example, the Seventh Circuit has added “the character or
reputation of the defendant” and “the nature of the inducement
or persuasion offered by the Government.” United States v.
Navarro, 737 F.2d 625, 635 (7th Cir. 1984); see United States v.
Gamache, 156 F.3d 1, 9-10 (1st Cir. 1986) (multiple factors);
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (same).
-22-
Cir. 1995); United States v. Harvey, 991 F.2d 981, 992 (2d Cir.
1993).
There is normally little controversy as to what constitutes
prior “similar criminal conduct.” See Paul Marcus, The Entrapment
Defense § 4.05I (4th ed. 2009). “Ready compliance” is usually
indicated by the promptness of a defendant’s agreement to commit
an offense. See Marcus, supra, § 4.05G. Indeed, the Supreme
Court has stated that if the defendant “had promptly availed
himself of the criminal opportunity” presented by government
agents, “it is unlikely that his entrapment defense would have
warranted a jury instruction.” Jacobson, 503 U.S. at 550. What
is meant by a pre-existing “design” is more problematic.
Because, as far as we have been able to determine, no decision
of our Court has encountered a jury’s rejection of an entrapment
defense where the prosecution’s claim of predisposition rests
solely on the defendant’s already formed “design,” i.e., without
prior criminal conduct or prompt agreement to commit the offense,
we consider the meaning of “design” in some detail.
(1) Design
The first federal decision to use “design” to refer to the
pre-existing mental state that defeats an entrapment defense
appears to be Woo Wai v. United States, 223 F. 412 (9th Cir.
-23-
1915), in 1915, which quoted the following passage from 12
Cyclopedia of Law and Procedure 160 (1901): “The fact that a
detective or other person suspected that the defendant was about
to commit a crime, and prepared for his detection, as a result
of which he was entrapped in its commission, is no excuse, if the
defendant alone conceived the original criminal design.” See Woo
Wai, 223 F. at 414 (emphasis added). Newman, 299 F. at 131,
quoted the “design” phrasing from Woo Wai, and Sorrells, 257 U.S.
at 445, quoted it from Newman.
Despite the repeated use of “design” to describe the second
means of proving predisposition, see Jacobson, 503 U.S. at 548;
United States v. Russell, 411 U.S. 423, 435-36 (1973); Sherman,
356 U.S. at 372,8 no court has discussed the meaning of the word
in the context of the entrapment defense.
In the context of predisposition, the word “design” is
ambiguous.9 It can comprehend a continuum of mental states from
8
We recently said that to show entrapment as a matter of
law, a defendant must prove that: “(1) the government originated
the criminal design, (2) the government suggested the design to
the defendant and induced him to adopt it, and (3) the defendant
had no predisposition to engage in the criminal design prior to
the government’s inducement.” Al Kassar, 660 F.3d at 119.
9
The ambiguity is well illustrated by the differing
interpretations of the word "design" in the majority and
partially dissenting opinions in this case. The Supreme Court
-24-
a generalized idea of committing criminal activity, to an intent
to commit a particular crime or crimes, to a precise plan for
committing such a crime or crimes. In ordinary discourse, saying
that someone acted “by design” usually means with a far more
generalized intent than the specific “design” of an architect.
When Judge Hand repeated from Becker the three means of showing
predisposition in our Court’s first encounter with George
Sherman,10 he said:
“As we understand the doctrine it comes to this: that
it is a valid reply to the defence, if the prosecution
can satisfy the jury that the accused was ready and
willing to commit the offence charged, whenever the
opportunity offered.”
Sherman, 200 F.2d at 882 (emphasis added).
When used as one of the three means of showing
predisposition, we think “design” must take its meaning from the
context of the type of criminal activity comprising the specific
might usefully consider substituting a different word or phrase
when it next discusses predisposition in the context of a claim
of entrapment.
10
On Sherman’s first appeal, we reversed and ordered a new
trial because of an error in the jury instructions. See United
States v. Sherman, 200 F.2d at 883. On Sherman’s second appeal,
after his conviction upon the retrial, we affirmed. See United
States v. Sherman, 240 F.2d 949 (2d Cir. 1949). The Supreme
Court reversed. See United States v. Sherman, 356 U.S. 369
(1958).
-25-
offenses a defendant has committed. With respect to a category
as varied as terrorist activity, the requisite design in the mind
of a defendant may be broader than the design for other narrower
forms of criminal activity. In view of the broad range of
activities that can constitute terrorism, especially with respect
to terrorist activities directed against the interests of the
United States, the relevant prior design need be only a rather
generalized idea or intent to inflict harm on such interests.
A person with such an idea or intent can readily be found to be
“ready and willing to commit the offence charged, whenever the
opportunity offered.”
Our dissenting colleague draws from Judge Hand’s opinion in
the first Sherman appeal a narrower view of “design” than the one
we adopt. Chief Judge Jacobs quotes Judge Hand’s statement that
the proof of the defendant’s predisposition “may be by evidence
of . . . his preparation . . . .” __ F.3d at __, [typescript at
3] and contends that a design must be “a course of conduct . . .
already so well advanced in the defendant’s mind that one can be
sure . . . it was not planted by an agent provocateur,” id. at
__ [typescript at 5] In identifying evidence that “may” show
predisposition, we do not think Judge Hand was requiring evidence
that the defendant had taken steps to prepare to commit the
-26-
charged offenses. In the sentences immediately preceding the
sentence with the word “preparation,” Judge Hand stated, as we
quoted above, that a valid defense is shown when the accused is
“ready and willing to commit the offense” when the opportunity
arises, and then significantly added:
“In that event the inducement which brought about the
actual offence was no more than one instance of the
kind of conduct in which the accused was prepared to
engage; and the prosecution has not seduced an innocent
person, but has only provided the means for the accused
to realize his preexisting purpose.”
Sherman, 200 F.2d at 882 (emphases added).
The first emphasized words convey the thought that the
second means of showing predisposition, i.e., having the
requisite “design,” does not mean “prepared” in the sense of
having taken specific preparatory steps to accomplish an offense,
or, in Chief Judge Jacobs’ words, a “well advanced” “course of
conduct”; rather, as the second emphasized word makes clear, it
means “prepared” in the sense of being ready to commit the
offense once the opportunity is presented. If the accused has
a “preexisting purpose” to commit offenses such as, or similar
to, the charged offenses, then he has the requisite preparedness.
That is enough to have the requisite “design.”
We doubt that the potential terrorists who are available to
-27-
be recruited by Al Qaeda or similar groups have already “formed”
a “design” to bomb specific targets, as Chief Judge Jacobs
narrowly defines those terms. Their predisposition is to have
a state of mind that inclines them to inflict harm on the United
States, be willing to die like a martyr, be receptive to a
recruiter’s presentation, whether over the course of a week or
several months, of the specifics on an operational plan, and
welcome an invitation to participate. The Air Force personnel
at Stewart Airport and the congregants at two synagogues in the
Bronx are fortunate that the person who first approached Cromitie
and suggested an operational plan was only a Government agent.
We detail in Part I(B)(1)(b), below, the evidence that
permitted the jury to find that Cromitie had the requisite
“design.” Before outlining that evidence, we first consider at
what point predisposition must be shown and then consider what
types of evidence are available to prove a pre-existing “design.”
(2) Time of Predisposition
Before the Supreme Court’s decision in Jacobson, the
prevailing rule had been that predisposition must be shown to
have existed prior to inducement by a government agent. See
United States v. Williams, 547 F.3d 1187, 1198 (9th Cir. 2008);
United States v. Francis, 131 F.3d 1452, 1456 (11th Cir. 1997);
-28-
United States v. Rodriguez-Andrade, 62 F.3d 948, 954-95 & n.4
(7th Cir. 1995); United States v. Palow, 777 F.2d 52, 55 (1st
Cir. 1985); see also United States v. Williams, 705 F.2d 603, 618
n.9 (2d Cir. 1983) (“Simply cultivating the friendship of a
target preparatory to presenting a criminal opportunity is not
inducement to commit a crime”).
However, in Jacobson the Court stated that the prosecution
must prove that “the defendant was disposed to commit the
criminal act prior to first being approached by government
agents.” 503 U.S. at 549. The Court’s support for this new
standard is curious. First, the Court cited United States v.
Whoie, 925 F.2d 1481 (D.C. Cir. 1991). The District of Columbia
Circuit there urged its district judges to follow the model
instruction in the Second Circuit, which the Court correctly
reported as stating that the prosecution’s burden is to prove
that the defendant was ready and willing “before the inducement
to commit the crime.” Id. at 1486 (emphasis added); see L. Hand,
J. Siffert, W. Loughlin & S. Reiss, Model Jury Instructions No.
807, ¶ 8.07, at 8-30 (1990). Second, the Supreme Court added a
footnote that relied on the fact that the Government had
“conceded” that its evidence was probative “because it indicated
petitioner’s state of mind prior to the commencement of the
-29-
Government’s investigation.” Jacobson, 503 U.S. at 549 n.2
(emphasis in original).
Whether Jacobson should be understood as requiring
predisposition prior to an agent’s contact, as the text states,
or prior to inducement or investigation, as the Court’s cited
authorities state, we feel obliged to apply the standard stated
in the text, and consider Cromitie’s state of mind prior to the
first contact with Hussain.
(3) Type of Evidence Relevant to Predisposition
Obviously any relevant evidence of what a defendant says or
does before “first being approached by Government agents,”
Jacobson, 503 U.S. at 549, is admissible. Not as clearly
admissible is evidence of what a defendant says or does after
inducement. Although as a general matter “a defendant’s state
of mind . . . can be inferred from his actions and statements,”
United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993), a broad
application of that principle would undermine the entrapment
defense by permitting any induced conduct to prove
predisposition. To guard against that risk, the Supreme Court
has required that conduct of a defendant, after contact by
Government agents, offered to prove predisposition, must be
“independent and not the product of the attention that the
-30-
Government had directed at [the defendant].” Jacobson, 503 U.S.
at 550; see United States v. Squillacote, 221 F.3d 542, 565-66
(4th Cir. 2000) (Predisposition may be proved by evidence of
“independently motivated behavior that occurs after government
solicitation begins.”).11 Of course, what a defendant says after
contacted by agents is generally admissible to prove
predisposition because, although some post-contact conduct might
be the product of inducement, it will be a rare situation where
a defendant can plausibly claim that the inducement caused him
to say something that evidenced predisposition.12 This reality
11
The District Court charged the jury, “Although you may
consider evidence relating to a defendant’s conduct after he was
first approached, you may do so only to the extent that it shows
something about the defendant’s state of mind before that point.”
Tr. 3488. This statement was too broad in that it did not limit
consideration of post-contact conduct to “independently motivated
behavior.” Squillacote, 221 F.3d at 565. However, there was no
objection to the wording of this portion of the charge, although
the defendants did object to the omission of language prohibiting
consideration of all post-contact conduct.
Concerning the Court’s statement of the entrapment standard,
the opinion in Cromitie II contains a typographical error, 2011
WL 1842219, at *3. The word “or” should be “only,” as is evident
from the language in United States v. Myers, 692 F.2d 823, 849
(2d Cir. 1982), which Cromitie II is quoting.
12
Judge McMahon was understandably perplexed by the apparent
tension between Jacobson’s implicit approval of the use of a
defendant’s post-contact conduct, as long as it is independent
and not the product of Government attention to the defendant, and
the following sentences in United States v. Brand, 467 F.3d 179,
-31-
informs our subsequent discussion of Cromitie’s post-June 13
statements in assessing his predisposition.
In considering the defendants’ entrapment defense, we first
discuss their claim of entrapment as a matter of law and then
192 (2d Cir. 2006): “Brand is correct in pointing out that the
government’s reliance on certain evidence of acts that occurred
after Brand’s initial contact with government agents is
misplaced. This evidence would not be probative of ‘petitioner’s
state of mind prior to the commencement of the Government’s
investigation.’” (quoting Jacobson, 503 U.S. at 549 n.2 (internal
quotation omits Jacobson’s emphasis of “prior”)). See Cromitie
II, 2011 WL 1842219, at *13-15.
She endeavored to reconcile the tension by pointing out that
when courts consider whether predisposition is shown by a
defendant’s prompt response to the Government solicitation, they
necessarily rely on post-contact conduct, from which she properly
reasoned that the language of Brand was overly broad. See id. at
*13. Indeed, she properly characterized the language as dictum,
noting that in Brand the Government had produced (1) abundant
pre-contact evidence about the defendant’s state of mind before
the first contact with the Government’s agents and (2) sufficient
evidence of an immediate response to the Government’s
solicitation such that later indication of such a response was
unnecessary. See id.
To her well reasoned analysis, we add only that Brand’s
quotation from Jacobson was somewhat extravagantly enlisted. The
words “petitioner’s state of mind prior to the Government’s
investigation” were not said to indicate that all post-contact
conduct was inadmissible to prove predisposition; they were said
to complete the thought that the Government’s valid post-contact
evidence “developed during the course of its investigation” was
“probative because it indicated petitioner’s state of mind prior
to the commencement of the Government’s investigation.” Jacobson,
503 U.S. at 549 n.2 (emphasis in original).
-32-
their challenge to the jury charge on entrapment.
(B) Entrapment as a Matter of Law
The defendants presented their defense of entrapment to the
jury through cross-examination and summations. By its verdicts
of guilty, the jury rejected the defense. On appeal, the
defendants contend that entrapment was established as a matter
of law, a claim we understand to mean that on the facts of this
case, no reasonable jury could find predisposition beyond a
reasonable doubt. See Jacobson, 503 U.S. at 553 (entrapment as
a matter of law found where “[r]ational jurors could not say
beyond a reasonable doubt that petitioner possessed the requisite
predisposition prior to the Government’s investigation”). We
consider this claim first as to Cromitie and then as to the other
defendants.
(1) Cromitie
(a) Inducement. Because the conduct of government agents is
the focus of the inducement component of the entrapment defense
and is the entirety of a claim of outrageous government conduct,
the factual predicates of the entrapment and the due process
claims are somewhat related, although the applicable legal
principles are distinct. In assessing the inducement component
of Cromitie’s entrapment claim, we will consider only the facts
-33-
sufficient to show inducement, leaving the additional details of
the Government’s alleged misconduct for assessment of the due
process claim below. See Part II(A)-(E).
The Government initially opposes Cromitie’s entrapment claim
by contending that there was no inducement. In the Government’s
view, once Cromitie indicated in his first discussion with
Hussain that he wanted to “do something to America” and
thereafter evinced a willingness to act upon that desire, “[a]ny
follow-up remarks by [Hussain] . . . lack the specificity to
constitute ‘soliciting, proposing, initiating, broaching or
suggesting the commission of the offense.’” Br. for Government
at 45 (quoting United States v. Dunn, 779 F.2d 157, 158 (2d Cir.
1985)). Although Hussain’s efforts to persuade Cromitie do not
lack specificity, the Government seems to be arguing that his
efforts are not relevant to inducement because Cromitie had the
requisite predisposition before their initial meeting on June 13,
2008. However, in this case, Cromitie’s statements on that date
arguably do not make it clear whether he then had the requisite
predisposition. We therefore need to consider what he said and
did thereafter, but, as we discuss below, see Part I(B)(1)(b),
the only post-June 13 statements and actions that can be looked
at to give meaning to Cromitie’s June 13 statements are those
-34-
that are independent of any inducement. Hussain’s efforts to
persuade Cromitie after June 13 are relevant to both inducement
and the ultimate issue of predisposition.
In this case, Hussain’s efforts to persuade Cromitie
constituted inducement. As the District Court – with the benefit
of hearing the recorded evidence and seeing the trial witnesses
– forcefully stated, “I believe beyond a shadow of a doubt that
there would have been no crime here except the government
instigated it, planned it, and brought it to fruition.”13
Sentencing Transcript 63. The record fully supports this
statement. Hussain’s efforts to persuade Cromitie to commit the
charged offenses persisted throughout the eleven-month period
from their initial meeting until the arrest. In addition to
proposing specifics of the planned attacks and supplying bombs
13
Judge McMahon also said, “[A]fter reviewing the record yet
again, I am left with the firm conviction that if the Government
had simply kept an eye on Cromitie, and moved on to other
investigations, nothing like the events of May 20, 2009 would
ever have occurred.” Cromitie I, 781 F. Supp. 2d at 226.
Forceful as this observation is, we understand it to mean, in
view of Judge McMahon’s subsequent conclusion that the Government
proved Cromitie’s predisposition, that Cromitie on his own would
not have planned and carried out an elaborate bombing attack.
At sentencing, she explicitly described Cromitie as “one who was
incapable of committing an act of terrorism on his own.” Sent.
Tr. 57. These observations do not in any way preclude a
predisposition to participate in terrorist activities if
approached by a real terrorist recruiter.
-35-
and missiles, Hussain’s inducements included offers of $250,000,
a barber shop at a cost of $70,000, a BMW, and an all-expense-
paid, two-week vacation to Puerto Rico for Cromitie and his
family. One portion of Hussain’s testimony, elicited on redirect
examination, is revealing:
Q. “[W]hat did the FBI tell you to do?”
A. “The FBI . . . told me to go a little bit harder on
him [Cromitie] and put some pressure on him, see where
he comes out given the opportunity.”
Trial Tr. 2488.
At trial, the Government disputed that Hussain had offered
$250,000 to Cromitie. We set forth in detail at this point what
the record reveals on this issue because whether Hussain offered
Cromitie this amount of money is, or might be, pertinent to three
of the defendants’ claims: sufficient inducement to require the
prosecution to prove predisposition, outrageous government
conduct in violation of the Due Process Clause, see Part II,
infra, and, because Hussain denied making the cash offer, the
prosecution’s knowing use of perjured testimony in violation of
the Due Process Clause, see Part III, below.
A recorded conversation on April 5 contained the following:
Cromitie: “I have to try to make some money brother.”
Hussain: “I told you, I can make you 250,000 dollars,
-36-
but you don’t want it brother.”
JA 4486. Hussain testified that he told Cromitie that “he’ll get
a lot of money.” Trial Tr. 892. In a recorded phone call to
Cromitie on May 1, Hussain said, “I’m going to Florida to pick
up the, the money.” JA 4497. Later that night, in a recorded
phone call to Payen, Cromitie said, “The cash rolled in,” id. at
4502, and in a recorded phone call to Onta Williams still later
that night, said, “The cash came through,” id. at 4504.
The Government’s dispute as to whether Cromitie was offered
$250,000 is based on Hussain’s testimony, elicited by the
prosecution, that “$250,000” was a code word for the cost of the
“equipments.” Trial Tr. 1036. On cross-examination, Hussain
characterized “$250,000” as a code word for the cost of the
entire operation. Id. at 1797, 1800-01. On summation, the
Government argued to the jury that “evidence that you saw[]
supports what [Hussain] told you, as crazy as it may sound.”14 Id.
at 3185-86. Undermining Hussain’s claim that “$250,000” was a
code word, apart from the claim’s inherent implausibility, are
the facts that (1) Hussain never told Cromitie that $250,000 was
a code word, a more-than-curious omission given that the two men
14
We discuss this “evidence” at footnote 31.
-37-
agreed on numerous code words for things and people, even using
“sun” to mean “mission,” id. at 1880, (2) Hussain never told the
FBI that he was using “$250,000” as a code word, and (3) Hussain
admitted on direct examination that he told Cromitie “he’ll get
a lot of money.” Id. at 892. The rule of appellate review after
a conviction that the evidence is to be viewed in the light most
favorable to the prosecution, see United States v. Chavez, 549
F.3d 119, 124 (2d Cir. 2008), does not require us to accept
Hussain’s code word claim where no reasonable juror could believe
the claim was true. Judge McMahon found, in assessing Cromitie’s
outrageous government conduct due process claim (as to which she
was the trier of fact) that Hussain “offered Cromitie as much as
a quarter of a million dollars to participate in a
mission. . . .[T]here can be absolutely no question that such an
offer was made.” Cromitie I, 781 F. Supp. 2d at 219. We see
absolutely no basis for rejecting that finding.
(b) Predisposition. With respect to the three means of
proving predisposition, it is clear that Cromitie had not engaged
in a course of similar conduct prior to the Government’s
inducement, nor did he readily agree to committing the charged
offenses. Thus, the issue becomes whether, prior to inducement,
he had an “already formed design to commit the crime or similar
-38-
crimes.” Becker, 62 F.2d at 1008 (emphasis added).
On the first day that Hussain met Cromitie, Hussain quotes
Cromitie as saying, “I want to do something to America.” Trial
Tr. 682. The potentially ominous meaning of these words was
considerably clarified by Cromitie’s immediately preceding
statement that he wanted “to die like a shahid, a martyr,” id.
at 681, and the fact that, as he said them, he pointed his right
index finger in the air in a gesture Hussain testified is used
“by somebody[] in radical Islam” to “mean[] taking an oath in
front of Allah to do take part of [sic] crime or Jihad act they
want to do.” Id. at 2456. The jury was entitled to think that
wanting to die like a martyr, coupled with wanting to do
something to America, meant a willingness to be a suicide bomber,
even though Cromitie never planned to sacrifice his own life.
Fully indicating that Cromitie’s initial statements to
Hussain revealed a pre-existing design to commit terrorist acts
against the interests of the United States are these later
statements (all words in quotation marks were recorded):
- As early as July 8, 2008, Cromitie told Hussain that
he wanted to join JeM, which he believed was a
terrorist organization in Pakistan.
- Cromitie expressed an interest in buying “stuff” from
Hussain, who had previously told Cromitie that “stuff”
included guns and missiles.
-39-
- When asked, “[H]ave you ever thought about doing
something here?” Cromitie answered, “I have been
wanting to do that since I was 7.” JA 3285-86.
- Also on November 28, Cromitie told Hussain he wanted
to do something “a little bigger” than the bombing of
a police station, id. at 3304, which he claimed to have
done.
- “I’d rather go in and bomb some place . . . .” Id. at
3302.
- “I would actually like to put a fucking bomb in the
back of a cop car while he’s sitting in the
motherfucker and watch him just explode, I would be the
most happiest person in the world.” Id. at 3310.
- “I would like to hit the bridge [to New Jersey].” Id.
at 3294.
- When Hussain said, “Let’s pick a target,” Cromitie
suggested “Stewart Airport.” Id. at 3536.
- “If survival for me is taking out one of these
American planes or whatever, that’s my fight.” Id. at
3287.
- “I’d like to get a synagogue. Me. Yeah, personally.”
Id. at 3316.
- “I don’t care if it’s a whole synagogue of men.” Id.
at 3717.
- “So it doesn’t matter to me what they do to me after
I killed President Bush.” Id. at 2995.
- “When the call come, I’m gonna go, ‘Allahu akbar,’
and I’m gone. There’s nothing no one can do. I’m
gonna go all the way. There’s no, no turn back.” Id.
at 2903.
- “I’m a soldier here, though, but not for America.”
-40-
Id. at 3022.
Cromitie’s recorded words explained his motives for what he
wanted to do:
- “[T]hey taking down our Islamic countries. What do
we do to make that stop? So, we start taking something
down here.” Id. at 2824.
- “They [air force planes] bringing ’em [troops] over
there [Afghanistan] to do damage to us. So, if they
don’t have the planes to carry ’em over there, you
can’t do too much damage.” Id. at 3660.
Indeed, Cromitie’s recorded words admitted his
predisposition:
- “You [Hussain] already seen I had some issues with
this world over here. So, and you know I would do
something to get back at them. Yeah, I would. So you
already knew I was like that. It wasn’t you who was
talking to me, I talked to you about it. When we first
met in the parking lot, I talked to you about it.” Id.
at 3309.
- “[I]f I’m doing something, it’s because I wanted to
do that for so long, myself, because I know it a [sic]
be right. You understand? So, you have nothing to say
about that. Before I met you, I already told you
already.” Id. at 3615.
- “So you have, you [Hussain] didn’t cause anything.
When on the day of judgment Allah wanna say, ‘Ah, yes
Maqsood,[15] you enticed Abdul Rahman[16] to do that.’ No!
I would be the truth on that day: No! You [Allah] gave
15
“Maqsood” is one of the names Cromitie used to refer to
Hussain.
16
Cromitie’s name in his terrorist role.
-41-
me my own will. You [Allah] gave me my own mind
setting, Allah. I did that on my own.” Id.
These recorded statements, all of which were independent of
any inducement, gave indisputable meaning to Cromitie’s initial
ominous, though somewhat generalized, words about wanting to “do
something to America” and “die like a shahid, a martyr.”17 The
later statements also gave the jury ample basis for believing
Hussain when he testified about what Cromitie had said to him
during their first unrecorded conversation.
Chief Judge Jacobs discounts the significance of some of
these statements, contending that they were the result of
“badgering” by Hussain. See __ F.3d at __ [typescript at 7] We
disagree. Cromitie’s statement that he wanted to join JeM was
volunteered and preceded only by the question whether he wanted
to attend a conference in Pakistan with JeM. His statement that
17
Chief Judge Jacobs contends that Cromitie’s statements
made after inducement “might show predisposition, but only if
they refer back to Cromitie’s state of mind prior to inducement.”
__ F.3d at __, [typescript at 6] Although statements after
contact with a government agent must be probative of the
defendant’s state of mind prior to such contact, see Jacobson,
503 U.S. 549, as Cromitie’s statements were, there is no
requirement that the statements “refer back” to prior state of
mind. As it happens, the first two of the three statements
quoted above explicitly refer back the time when and before
Cromitie met Hussain (“When we first met in the parking lot, I
talked to you about it,” and “Before I met you, I already told
you already.”).
-42-
he wanted to bomb the George Washington Bridge was preceded only
by the question “[W]hat, I mean, in your mind, were your best
targets here? In New York?” JA 3292. Cromitie’s identification
of Stewart Airport was preceded only by Hussain’s saying, “Let’s
pick a target.” Id. at 3536. Cromitie’s statement that he wanted
to bomb a synagogue was volunteered, without any prior question,
while watching a television report of a bombing in Mumbai. We
see no badgering eliciting these revealing statements. Nor do
we agree that these and the other statements set out above fail
to reveal Cromitie’s state of mind prior to the first meeting
with Hussain in June 2008. On the contrary, they make entirely
clear what Cromitie had in mind when he told Hussain at that
first meeting that he wanted to “do something to America.”
Chief Judge Jacobs also discounts Cromitie’s statement that
he wanted “to die like a martyr” as “boastful piety.” __ F.3d at
__ typescript at 8] We see nothing pious in wanting “to die like
a martyr” when said in the same breath with wanting “to do
something to America,” especially when the statement is followed
in a month with a volunteered desire to join what Cromitie
believed was a Pakistani terrorist organization.
It is true that during the many months of Hussain’s
persuasion, Cromitie’s commitment to the terrorism plot was not
-43-
unwavering. For example, a recorded conversation on December 10
included the following:
Cromitie: “I’m gonna try one more move, Hak[18]. If the
move don’t work, it doesn’t matter, I’m gonna leave it.
Is that okay with you?” JA 3525.
Hussain: “That’s perfectly fine, brother.” Id.
But moments later, Cromitie said:
“’Cause some things just don’t work out. But let me
try something else. I got something else planned.
There’s always a plan ‘B.’ You understand? There’s
always a plan ‘B.’ So don’t worry. Just be easy.
Okay?” Id.
After Hussain returned from a two-month trip to Pakistan, in
a recorded conversation on February 23, 2009, this colloquy
occurred:
Hussain: “You talked about synagogues, remember?”
Cromitie: “Yeah.”
Hussain: “You still wanna do it?”
Cromitie: “I’m thinking about it. I have to think
about it. I got so much, you know what, it’s not that
I don’t wanna do it. It’s just that, since you been
gone, I been, like, okay I guess everything’s down the
drain now.”
. . . .
Hussain: “[T]here’s some things that you were supposed
to do while I was gone.”
18
Another name Cromitie used to refer to Hussain.
-44-
Cromitie: “I just dropped everything.”
Id. at 3595-96. But Cromitie then continued:
“I didn’t forget everything, though. I remember
everything. I remember the codes, the words,
whatever. . . . I think I need to, I wanna do it.
Because everything I been watching I been wanting to do
everything. Ever since you been gone.”
Id. at 3596.
On February 24, Cromitie told Hussain that he would be going
to North Carolina, a trip he apparently did not make. There was
no contact between them for the next six weeks despite Hussain’s
efforts to reach Cromitie by phone. Then on April 5, Cromitie
resumed contact by phoning Hussain. This was the call in which
Hussain offered Cromitie $250,000. Cromitie asked for a
meeting. When they met on April 7, Hussain pressed Cromitie as
to where he stood:
“So you have to tell, you have to tell me yeah. Can we
do it, or can we not do it?” Id. at 3716.
Cromitie initially replied, “I’m thinking,” and then, warming to
the plan, said:
“I’m gonna tell you I don’t care if it’s a whole
synagogue full of men. . . . I would take ’em down, I
don’t even care. ’Cause I know they are the ones. . . .
[S]ee, I’m not worried about nothing. Ya know? What
I’m worried about is my safety.”
Id. at 3717. Continuing with their plans, they discussed
-45-
lookouts. On April 10, Hussain and Cromitie picked up David
Williams and conducted surveillance of the synagogues. From that
point on, events moved rapidly to the May 20 finale.
Despite moments of wavering, which do not preclude a finding
of predisposition, see United States v. Davila-Nieves, 670 F.3d
1, 4 (1st Cir. 2012) (predisposition despite seven-month interval
between informant’s contacts with defendant); United States v.
Evans, 924 F.2d 714, 716 (7th Cir. 1991) (“second thoughts
following initial enthusiasm do not establish entrapment”),
Cromitie revealed his willingness, indeed his eagerness, to
commit acts of terrorism through his own recorded statements.
Two examples stand out. Referring to the initial conversation
with Hussain, Cromitie recalled in a recorded conversation,
“[Y]ou already knew I was like that. It wasn’t you who was
talking to me, I talked to you about it. When we first met in
the parking lot, I talked to you about it.” JA 3309. And
contemplating that “on the day of judgment” Allah would say that
Hussain had enticed him, Cromitie said he would answer, “No! You
[Allah] gave me my own will. . . . I did that on my own.” Id. at
3615.
From everything that Cromitie said, the jury was entitled to
find that he had a pre-existing “design” and hence a
-46-
predisposition to inflict serious harm on interests of the United
States, even though Government officers afforded him the
opportunity and the pseudo weapons for striking at specific
targets. “[T]he fact that officers or employees of the
Government merely afford opportunities or facilities for the
commission of the offense does not defeat the prosecution.”
Jacobson, 503 U.S. at 548 (internal quotation marks omitted).
“It is sufficient if the defendant is of a frame of mind such
that once his attention is called to the criminal opportunity,
his decision to commit the crime is the product of his own
preference and not the product of government persuasion.”
Williams, 705 F.2d at 618.
(2) David Williams, Onta Williams, and Payen
(a) Inducement. We will assume for the argument that the
Government’s inducement of Cromitie, some of which was
undoubtedly relayed by him to the other three defendants,
sufficed to show that they too were induced. See United States
v. Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988) (“derivative
entrapment defense available ‘where government agents act through
private citizens’”) (quoting United States v. Buie, 407 F.2d 905,
908 (2d Cir. 1969), aff’d without consideration of this point sub
nom. Minor v. United Sates, 396 U.S. 87 (1969)); United States
-47-
v. Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980) (government
inducement via third party), amended, 669 F.2d 37 (2d Cir. 1981),
aff’d after remand, 677 F.2d 191 (2d Cir. 1982). We note that
only Cromitie was offered $250,000; the other defendants were
each offered $5,000. Trial Tr. 1035.
(b) Predisposition. The Government does not contend that
the predisposition of David Williams, Onta Williams, and Payen
was shown by prior similar conduct or a pre-existing design.
Instead, the Government contends that their predisposition,
sufficient to defeat an entrapment defense, is shown by their
“‘ready response to [any] inducement.’” Br. for Government at
46 (quoting Al-Moayad, 545 F.3d at 154). See United States v.
Viviano, 437 F.2d 295, 299 (2d Cir. 1971) (Predisposition may be
shown by “a willingness to commit the crime for which [the
defendant] is charged as evidenced by [his] ready response to the
inducement.”).
The District Court acknowledged that there was “no direct
evidence of when or how these [three] defendants were solicited.”
Cromitie II, 2011 WL 1842219, at *15. Nevertheless, after a
meticulous review of the evidence, see id. at *16-23, Judge
McMahon concluded that circumstantial evidence of what the three
defendants said and did shortly after they had been recruited
-48-
sufficed to permit the jury to find a “ready response” that
defeated their entrapment defense, see id. at *23. As she noted,
“[N]o more than a few days[] passed” between the time that
Cromitie first talked to David Williams and the time when David
Williams “showed himself to be fully committed” to the plan, id.
at *19, and “Onta Williams and Payen agreed to become involved
‘promptly’ after they were first approached” and “were willing
to join in a terrorism plot without any hesitation or
reservation,” id. at *22. We fully agree with her analysis and
conclusions.19
Although all three defendants were recruited just to be
lookouts, they not only agreed to the entire plan promptly but
expressed enthusiasm for it. Among their statements, most of
which were recorded, are these:
- David Williams: “The ones that should be hit is the
ones that’s the cargo planes.” JA 3853. “[The attacks
would] be a hell of a story though. Tell your
grandkids.” JA 4267.
- Onta Williams: “[Blowing up the planes is] gonna be
19
Judge McMahon was careful to note that her analysis
depended on a reading of Brand that permits post-inducement
conduct to prove the “ready response” that defeats entrapment.
See Cromitie II, 2011 WL 1842219, at *23. We agree that Brand
does so. What we question in Brand is only the dictum that some
post-inducement conduct is not also relevant to prove a
defendant’s pre-existing design. See footnote 12, supra.
-49-
a double whammy.” Id. at 4275. “So if we kill them
here, it would all be equal [to U.S. military
operations abroad].” Trial Tr. 2528.
- Payen: (responding to Hussain’s caution that the plot
was “secret”) “Insha’ Allah. I know what time it is.
There’s a lot of things I’ve done in my lifetime,
Hakim.[20]” JA 4117. “I’m doing this for the sake of
Allah.” Id. at 4314.
Although, as Judge McMahon stated, “It is beyond question
that the Government created the crime here,” Cromitie II, 2011
WL 1842219, at *23, the evidence sufficed to permit the jury to
find predisposition and reject the entrapment defense. That
defense was not established as a matter of law.
(C) Jury Charge on Entrapment
The defendants challenge the jury charge on entrapment on
the ground that the charge did not instruct the jury in
accordance with the Seventh Circuit’s decision in United States
v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994) (in banc). In
that decision, a closely divided (6-5) in banc court ruled that
an entrapment defense succeeds as a matter of law unless a
defendant, whom government agents have induced to commit an
offense, is “in a position without the government’s help to
become involved in illegal activity.” Id. at 1200. As then-Chief
20
“Hakim” was another name the defendants called Hussain.
-50-
Judge Posner contended, predisposition “has positional as well
as dispositional force.” Id. He amplified this “positional” view
of predisposition as follows: “The defendant must be so situated
by reason of previous training or experience or occupation or
acquaintances that it is likely that if the government had not
induced him to commit the crime[,] some criminal would have done
so . . . .” Id. He offered as examples a public official in a
position to accept a bribe, a drug addict to sell drugs, and a
gun dealer to make illegal gun sales. Urging us to adopt the
Seventh Circuit’s view, the defendants argue that none of them
was in a position to acquire Stinger missiles or bombs to carry
out the proposed attacks.
We reject the Seventh Circuit’s expansion of the entrapment
defense to permit an induced defendant, predisposed under
existing standards to commit a crime, to establish the defense
of entrapment simply because, prior to the unfolding of a
government sting, he was not in a position where it was likely
that he would have figured out how to commit the offense and how
to acquire necessary devices. The principal dissent in
Hollingsworth has forcefully set forth the shortcomings of this
ill-advised expansion, see 27 F.3d at 1213 (Ripple J., with whom
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Bauer, Coffey, Kanne, and (in part) Easterbrook join,21
dissenting),22 and the Ninth Circuit has rejected it, see United
States v. Thickstun, 110 F.3d 1394, 1398 (9th Cir. 1997). A
person who has a pre-existing design to commit terrorist acts
against United States interests or who promptly agrees to play
a part in such activity should not escape punishment just because
he was not in a position to obtain Stinger missiles and launch
them at United States airplanes. The Government need not leave
him at large until a real terrorist suggests such action and
21
Judge Easterbrook concurred fully in the portions of Judge
Ripple’s dissent rejecting the “positional” approach to
predisposition. He concurred partially only to disagree with
Judge Ripple on an unrelated point.
22
To their dissenting opinions, we add only that the
“positional” test does not explain why a prompt “yes” to a
solicitation to commit a crime is indicative of a pre-existing
interest in committing a crime depending on the defendant’s
position. In the several Abscam cases in which convictions were
affirmed by this Court, see United States v. Silvestri, 719 F.2d
577 (2d Cir. 1983); United States v. Murphy, 715 F.2d 39 (2d Cir.
1983); United States v. Thompson, 710 F.2d 915 (2d Cir. 1983);
Williams, 705 F.2d 603; United States v. Myers, 692 F.2d 823 (2d
Cir. 1982), the prompt agreement by a Senator and many
Representatives to accept a bribe after it was offered told us
only that they were willing to commit the crime of bribery, but
it left us unenlightened as to whether they had entertained the
thought of accepting a bribe before one was offered or simply
jumped at the first opportunity. Nor did their position as
members of Congress answer that question. What their positions
provided was the ability to take the actions (introduce bills)
for which the bribes were offered, not an indication that doing
so was previously in their minds.
-52-
supplies real missiles.
The defendants’ challenge to the jury charge is rejected.
II. Outrageous Government Conduct
As a claim distinct from their claim of entrapment as a
matter of law, the defendants contend that their convictions
should be reversed because the Government’s conduct in persuading
Cromitie, and the others through Cromitie, to commit the charged
offenses was so outrageous as to violate the Due Process Clause.
In Hampton v. United States, 425 U.S. 484 (1976), the Supreme
Court, by a vote of 5 to 3, ruled that, even as to a defendant
predisposed to commit an offense, outrageous government conduct
could invalidate a conviction.23 The conduct of the law
23
See Hampton, 425 U.S. at 492-93 (Powell, J., with whom
Blackmun, J., joins, concurring in the judgment); id. at 497
(Brennan, J., with whom Stewart and Marshall, JJ., join,
dissenting). Justice Stevens did not participate. See id. at
491.
Criticizing the three-member plurality (Rehnquist, J., with
whom Burger, C.J., and White, J., join, 425 U.S. at 485-91),
Justice Powell wrote: “The plurality thus says that the concept
of fundamental fairness inherent in the guarantee of due process
would never prevent the conviction of a predisposed defendant,
regardless of the outrageousness of police behavior in light of
surrounding circumstances. I do not understand Russell[, 411
U.S. 423 (1973),] or earlier cases delineating the
predisposition-focused defense of entrapment to have gone so
far . . . .” Hampton, 425 U.S. at 492-93 (footnote omitted).
Justice Brennan wrote: “The focus of the view espoused by
-53-
enforcement officials must reach a “demonstrable level of
outrageousness before it could bar conviction.” Id. at 495 n.7
(Powell, J., concurring in the judgment). We have recognized the
same principle. “Government involvement in a crime may in theory
become so excessive that it violates due process and requires the
dismissal of charges against a defendant even if the defendant
was not entrapped.” Al Kassar, 660 F.3d at 121. We also
recognized this possibility in United States v. Rahman, 189 F.3d
88, 131 (2d Cir. 1999), although cautioning that the alleged
misconduct must “shock the conscience” in the sense contemplated
by Rochin v. California, 342 U.S. 165, 172 (1952) (forced stomach
pumping). See also United States v. Myers, 692 F.2d 823, 836 (2d
Cir. 1982) (“Unlike the entrapment defense, which focuses on the
defendant’s predisposition, th[e] due process claim focuses on
the conduct of the government agents.”). Only a divided panel
Mr. Justice Roberts [in Sorrells, 287 U.S. at 453], Mr. Justice
Frankfurter [in Sherman, 356 U.S. at 378], and my Brother Stewart
[in Russell, 411 U.S. at 439] is not on the propensities and
predisposition of a specific defendant, but on whether the police
conduct revealed in the particular case falls below standards,
to which common feelings respond, for the proper use of
governmental power. . . . Under this approach, the determination
of the lawfulness of the Government’s conduct must be made as it
is on all questions involving the legality of law enforcement
methods by the trial judge, not the jury.” Hampton, 425 U.S. at
496-97 (internal quotation marks omitted) (ellipsis in original).
-54-
of the Third Circuit has ruled that government conduct violated
due process limits, see United States v. Twigg, 588 F.2d 373 (3d
Cir. 1978),24 and that Circuit has since ruled that the rationale
of Twigg had been limited by Hampton. See United States v.
Beverly, 723 F.2d 11, 12 (3d Cir. 1983).
Courts acknowledging the possibility of dismissal for
outrageous government conduct have said little about what conduct
would be considered constitutionally “outrageous.” Indeed, this
Court has said that this type of claim is “an issue frequently
raised that seldom succeeds.” United States v. Schmidt, 105 F.3d
82, 91 (2d Cir. 1997). In Al Kassar, we said, “Generally, to be
‘outrageous,’ the government’s involvement in a crime must
involve either coercion or a violation of the defendant’s
person.” 660 F.3d at 121. We have also stated:
“[W]hether investigative conduct violates a defendant’s
right to due process cannot depend on the degree to
which the government action was responsible for
inducing the defendant to break the law. Rather, the
existence of a due process violation must turn on
whether the governmental conduct, standing alone, is so
offensive that it ‘shocks the conscience’ regardless of
the extent to which it led the defendant to commit his
24
Cromitie argues that the outrageous conduct claim was also
upheld in United States v. Lard, 734 F.2d 1290 (8th Cir. 1984),
see Br. for Cromitie at 46 n.9, but that decision reversed a
conviction after ruling that entrapment was established as a
matter of law, see Lard, 734 F.3d at 1294.
-55-
crime.”
United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (citation
omitted). The D.C. Circuit has said that due process limits are
violated only where government misconduct includes “coercion,
violence or brutality to the person.” United States v. Kelly, 707
F.2d 1460, 1476 (D.C. Cir. 1983) (internal quotation marks
omitted).
As to what does not exceed due process limits, we have said,
“It does not suffice to show that the government created the
opportunity for the offense, even if the government’s ploy is
elaborate and the engagement with the defendant is
extensive. . . . [F]eigned friendship, cash inducement, and
coaching in how to commit the crime do not constitute outrageous
conduct.” Al Kassar, 660 F.3d at 121.
In asserting their claim of outrageous conduct, all four
defendants focus on the Government’s role in the planning of, and
preparing for, the aborted attacks; Cromitie cites in addition
Hussain’s suggesting that he had a religious obligation to commit
the crimes, exploiting professed love for Hussain, and offering
him large financial benefits.
(A) Government’s Role in Planning the Crimes
There is no doubt that Government agents planned the entire
-56-
operation with respect to launching missiles to destroy airplanes
at Stewart Airport. The idea of bombing synagogues appears to
have originated with Cromitie, although Government agents
supplied the fake bombs and instructed the defendants how to
detonate them. In Judge McMahon’s words, “The Government invented
all of the details of the scheme . . . .” Cromitie I, 781 F.
Supp. 2d at 220.
But as with all sting operations, government creation of the
opportunity to commit an offense, even to the point of supplying
defendants with materials essential to commit crimes, does not
exceed due process limits. See Russell, 411 U.S. at 431-32;
Rahman, 189 F.3d at 131. Once the FBI learned that Cromitie, in
his very first encounter with Hussain, had expressed a desire to
“do something to America” and had given an ominous meaning to
this statement by saying he wanted to die like a martyr, the FBI
agents would have been derelict in their duties if they did not
test how far Cromitie would go to carry out his desires.
Determining whether Cromitie would go so far as to launch
missiles at military aircraft was not outrageous government
conduct.
(B) Exploiting Religious Views
Cromitie amplifies the outrageous conduct claim by arguing
-57-
that Hussain “engaged in proselytizing [him] to convert him from
a moderate if angry, Muslim, to one committed to violent
terrorism in the name of religion.”25 Br. for Onta Williams at 62-
63. As Cromitie explained to the other defendants at a meeting
a few days before the planned attacks, Hussain had told him,
“[D]on’t do it just for the money. But do it . . . in the name
of Allah.” JA 4159.
It is an unfortunate aspect of the modern world of Islam
that within the ranks of the hundreds of millions of law-abiding
Muslims exists a small number of jihadists who have the distorted
view that acts of violence serve Allah. When a government agent
encounters a Muslim who volunteers that he wants to “do something
to America” and “die like a shahid,” the agent is entitled to
probe the attitudes of that person to learn whether his religious
views have impelled him toward the violent brand of radical Islam
that poses a dire threat to the United States. Such probing does
not remotely implicate the religion clauses of the First
Amendment, as Cromitie argues, see Br. for Onta Williams at 64-
65, nor constitute outrageous government conduct.
25
These words appear in the brief for Onta Williams at 62-
63; Cromitie has adopted all of his co-defendants’ arguments. See
Br. for Cromitie at 3.
-58-
(C) Exploiting Professed Love
Cromitie further argues that Hussain exploited Cromitie’s
professed love for Hussain by reciprocating with expressions of
feigned love, thereby using their relationship to manipulate
Cromitie into agreeing to the planned attacks. See Br. for Onta
Williams at 68-72. On numerous occasions Cromitie told Hussain,
“I love you brother,” e.g., JA 2809, 3095, 3153, and Hussain
often replied, “I love you too, brother.” e.g. id. at 2809, 3095,
3153. On at least one occasion, Hussain flirted with Cromitie:
“Tell me how much you love me.” Id. at 3192.
Cromitie argues that Hussain’s exploitation of their
relationship is outrageous conduct on a par with the sexual
intercourse that a government agent allegedly engaged in to
seduce a suspect, conduct that our Court has indicated might,
depending on the circumstances, violate due process limitations.
See United States v. Cuervelo, 949 F.2d 559, 567-69 (2d Cir.
1991). We disagree. Although we need not determine where the
outer limits of permissible sexual involvement with a suspect
might be, we fully agree with the Ninth Circuit that the
“illusory cultivation of emotional intimacy” does not exceed due
process limits. United States v. Simpson, 813 F.2d 1462, 1467
(9th Cir. 1987). “To win a suspect’s confidence, an informant
-59-
must make overtures of friendship and trust and must enjoy a
great deal of freedom in deciding how best to establish a rapport
with the suspect.” Id. at 1466.
(D) Monetary and Other Benefits
Finally, Cromitie argues that the monetary and other
benefits Hussain offered him were so large as to exceed due
process limits on government conduct. The principal benefit, as
we have discussed above, see Part I(B)(1)(a), was a cash offer
of $250,000, and in addition a barbershop, a new BMW, and a two-
week vacation.
Our Court has not encountered a government-offered cash
inducement as large as $250,000. The Abscam cases in this
Circuit involved bribe payments of $50,000, and we found no due
process violation. See, e.g., Myers, 692 F.2d at 827.26 In Al
Kassar, we ruled that a cash inducement of €125,000 did not
constitute outrageous conduct. See 660 F.3d at 116, 121. The
D.C. Circuit has ruled in another Abscam case that an offer of
$100,000 to a congressman did not violate due process, see United
26
In Myers, the inducement also included offering to bring
multi-million dollar projects to districts of members of
Congress. We ruled that such offers did not violate due process
limits because it is a “normal part of [the members’] public
responsibilities to promote business activity for the benefit of
their constituents.” 692 F.2d at 838.
-60-
States v. Jenrette, 744 F.2d 817, 823-24 (D.C. Cir. 1984), and
the Ninth Circuit has ruled that a finder’s fee of $200,000 to
a potential supplier of large quantities of cocaine did not cross
the due process line, see United States v. Emmert, 829 F.2d 805,
812 (9th Cir. 1987).27
Even if we were to accept the premise that an offer of money
might, in some unlikely circumstances, be so large as to
constitute outrageous government conduct, we do not believe a
line should be drawn at a fixed dollar amount. Such an absolute
line would be inconsistent with the flexible standards usually
informing due process limitations. See Morrisey v. Brewer, 408
U.S. 471, 481 (1972). An amount of money that might constitute
a due process violation should be measured in relation to the
inducement available for a particular criminal act from non-
governmental sources and the nature of the act itself. A large
sum reflecting the going rate for a murder-for-hire might exceed
due process limits if offered to induce the sale of a small
quantity of marijuana.
27
In Williams, the Ninth Circuit, considering a defendant’s
claim that the Government had offered him hundreds of thousands
to perhaps more than a million dollars in potential cocaine
sales, assumed that such an offer constituted inducement, but had
no occasion to assess the offer against due process limitations.
547 F.3d at 1198.
-61-
With respect to the outrageous government conduct claim,
the burden of proof rested with the defendants, and they
presented no evidence to indicate that $250,000 (plus assorted
other benefits) was more than might plausibly be required to
purchase the services of a person willing to recruit and lead a
team to launch Stinger missiles at an air force base and bomb
synagogues. Whatever the going rate for such terrorist
activities, only an offer significantly higher would require us
to consider whether due process limits had been exceeded. The
monetary benefits offered to Cromitie did not violate the Due
Process Clause.
(E) Aggregation of Persuasion Techniques
Although Judge McMahon candidly acknowledged that she was
“not familiar with a case in which so many different tactics were
used on a single individual,” she concluded that “Cromitie
justified the Government’s persistence when he proved to be ready
and willing to commit terrorist acts. . . . [T]here was no
coercion of any sort, no suggestion of duress and no physical
deprivation.” Cromitie I, 781 F. Supp. 2d at 223. We agree.
None of the techniques Hussain used to persuade Cromitie or the
other defendants to participate in the government-devised plan,
whether considered in isolation or cumulatively, violated the Due
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Process Clause.
III. Prosecution’s Knowing Use of Perjured Testimony
“[A] conviction obtained by the knowing use of perjured
testimony is fundamentally unfair, and must be set aside if there
is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 427
U.S. 97, 103 (1976) (footnotes omitted); see Giglio v. United
States, 405 U.S. 150, 153 (1972); Drake v. Portuondo, 553 F.3d
230, 240 (2d Cir. 2009); Perkins v. LeFevre 642 F.2d 37, 40 (2d
Cir. 1981).
“In order to be granted a new trial on the ground that a
witness committed perjury, the defendant must show that (i) the
witness actually committed perjury; (ii) the alleged perjury was
material; (iii) the government knew or should have known of the
perjury at [the] time of trial; and (iv) the perjured testimony
remained undisclosed during trial.” United States v. Josephberg,
562 F.3d 478, 494 (2d Cir. 2009) (internal quotation marks and
alterations omitted).
The perjury is “material” if there is any “reasonable
likelihood that the false testimony could have affected the
judgment of the jury,” Agurs, 427 U.S. at 103, and the
prosecutor’s knowing use of perjured testimony can violate the
-63-
Due Process Clause even if it only undermines a witness’s
credibility, see Napue v. Illinois, 360 U.S. 264, 269-70 (1959)
(“A lie is a lie, no matter what its subject, and, if it is in
any way relevant to the case, the district attorney has the
responsibility and duty to correct what he knows to be false and
[to] elicit the truth.”).
The defendants mount a vigorous attack on Hussain’s
credibility, claiming that he had told numerous lies prior to the
trial, he testified falsely during the trial, and such falsity
was known or should have been known to the prosecution. This
claim arises in a context quite different from that of most of
the relevant cases. Typically the fact that the prosecution was
aware of a witness’s trial perjury comes to light only after the
trial. That was the situation, for example, in Wallach, where
the prosecution became aware of the perjury of its principal
witness six months after the trial, see United States v. Wallach,
935 F.2d 445, 456 (2d Cir. 1991). In the pending case, however,
the evidence that Hussain had lied was presented to the jury
during the trial. We consider first the false statements
unrelated to the $250,000 offer and then the $250,000 testimony
itself.
(A) False Statements Unrelated to the $250,000 Offer
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Most of Hussain’s lies unrelated to the $250,000 offer were
told years before the trial. They occurred in various contexts:
his asylum application,28 his financial statement in connection
with the presentence report in Albany for his prior conviction,29
his statements in a bankruptcy proceeding,30 and his statements
28
Hussain falsely said on his asylum application that
Pakistani police and army officials had given him permission to
leave the country, see JA 1006-07; claimed he had been arrested
in Pakistan for many crimes, but in fact the arrest was for
kidnapping, see id. at 2330-31; and made what he called “a
mistake” in denying on an application for citizenship that he had
never committed any crimes for which he had not been arrested,
see id. at 2290-92.
29
Hussain falsely told the Probation Department that he
owned six restaurants when in fact his family owned them, see JA
1047-48, and that his house was worth $160,000, although it was
assessed five months later for $125,000, see id. at 1050-51; he
did not list loans on his financial affidavit prepared for his
presentence report, see id. at 2309, and he lied about the scope
of his fraud violation, see id. at 2278.
30
Hussain did not tell the bankruptcy court about the
receipt of trust funds from Pakistan, see JA 1258-60, and omitted
from his bankruptcy petition three cars that he owned and
$100,000 of family business stock, see JA 1128.
Hussain also omitted mention of a prior arrest when he
applied for a liquor license; see JA 1099-1100, misled a school
district as to where he lived; see id. at 1284, admitted that a
judgment was entered against him for fraudulent
misrepresentations with respect to a hotel he owned; see id. at
1269, and admitted that he wrote a false name for his father, see
id. at 2154, and for his own place of birth when he applied for
a passport in Montreal, see id., but claimed he did this to avoid
detection by terrorists, see id. at 2404.
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in a job application, among others.
Hussain’s lies at trial, with the exception of his denial of
the $250,000 offer and his code word claim, also concerned events
occurring long before the sting operation. He testified that in
the Albany criminal case he had met his lawyer for the first time
at sentencing and had met him only once, see Trial Tr. 1265-66,
but one of the defense counsel in the pending case reported that
the Albany lawyer told him he had met with Hussain many times
starting two years before sentencing, see id. at 1910.
Hussain testified about his receipt of funds from a family
trust in Pakistan. This testimony, if not false, was certainly
inconsistent. There is no doubt that he received large sums of
money from Pakistan, but it is not clear whether these were loans
or trust income to which he was entitled. At one point he
claimed that all of the money was a loan from the trust that had
to be returned. See id. at 2349-50, 2854.
Hussain testified that he paid taxes on the $50,000 he
earned as an informant, see id. at 1633, but also admitted that
he did not pay taxes on this money, see id. at 2936.
Hussain testified that someone other than himself wrote the
word “died” on his asylum application (referring to his mother),
but in later testimony admitted that he did write the word
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“died.” See id. at 2953-54.
None of Hussain’s lies before trial or in his trial
testimony, except for those concerning the $250,000 offer to
Cromitie, related to the defendants’ offense conduct.
Furthermore, they had only minimal relevance to Hussain’s
credibility in recounting the defendants’ offense conduct in view
of his admission of almost all of them in his trial testimony and
the fact that the principal evidence of such conduct was the
recorded words of the defendants themselves. There is thus no
“reasonable likelihood” that these lies “could have affected the
judgment of the jury.” Agurs, 427 U.S. at 103, to the defendants’
detriment.
(B) False Statements Concerning the $250,000
The defendants’ claim that Hussain testified falsely
concerning the $250,000 offer presents more substantial issues.
These are whether the testimony was false, whether the
prosecution knew of the falsity, whether the prosecution should
have known of the falsity, and whether there was any reasonable
likelihood that the false testimony would have affected the jury.
(1) Falsity of the $250,000 Testimony
As we have recounted, Hussain testified that he did not
offer Cromitie $250,000 and that “$250,000” was a code word for
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the cost of the mission. Trial Tr. 1797, 1800-01. His denial of
the offer was shown to be false by the April 5 recorded telephone
call in which he responded to Cromitie’s expressed need for money
by explicitly stating, “I can make you 250,000 dollars.” JA 4486.
In addition, Hussain admitted that he told Cromitie that he would
“get a lot of money.” Trial Tr. 892. The falsity of the code
word claim, apart from its inherent implausibility, was shown by
the facts that Hussain never told Cromitie that “$250,000” was
a code word, he testified that he “thought Cromitie would
understand,” he never told the FBI that he was using “$250,000”
as a code word, he admitted that “$250,000” did not appear on his
list of code words, and he admitted that the list did contain
“sun” as a code word for “mission.” Id. at 1880.
These facts clearly showed that Hussain’s testimony was
false.
(2) The Prosecution’s Knowledge of the Falsity
The Government has maintained that the prosecution did not
believe Cromitie was lying. On rebuttal summation, the
prosecutor flatly declared, “There is no evidence that [Hussain]
offered anything more than $5,000,” id. at 3337, and on
summation, the prosecutor urged the jury to believe that
“$250,000” was a code word, id. at 3185. Although conceding that
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“anybody looking at those words [from the April 5 recorded phone
call] on the page would know that Cromitie, easily, could have
took [sic] that as an offer for $250,000,” the prosecutor
continued, “[b]ut the evidence, other evidence that you saw,
supports what [Hussain] told you, as crazy as it may sound.”31 Id.
In its appellate brief, the Government recounts Hussain’s claim
that “$250,000” was a code word for the operation, see Br. for
United States at 89, and asserts that “the Government . . .
‘formed a good-faith belief that the [alleged lies] referr[ed]
only to . . . inconsistencies . . . that were aired at trial,’”
id. at 107 (quoting Morris, 447 F.3d at 744).32
Although given some pause by the prosecutor’s jury argument
in support of the code word claim, we cannot say that the
prosecution knew the claim was false. The prosecutor might have
31
The “evidence” the prosecutor then outlined was: (1) the
$250,000 was never mentioned again, (2) the fact that Cromitie
resumed contact with Hussain after the six-week absence and then
heard the $250,000 figure shows that Cromitie could not have
anticipated such an offer, and (3) Cromitie had finally found his
lieutenant. See Trial Tr. 3186. The first item casts at least
some doubt about a bona fide offer; the other two prove nothing.
32
In redirect examination of Hussain, the prosecutor asked
questions that could be interpreted to indicate skepticism about
the code word claim. The prosecutor asked, “How is that possibly
a code?” and had Hussain concede that “$250,000” was not on a
list of code words. Trial Tr. 2513-14.
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subjectively believed that the code word claim was true, even
though in the District Court’s view, and in ours, there was not
a reasonable basis for such a belief. We note that Hussain’s
testimony about the $250,000 was not the sort of assertion that
could be verified by investigation.33 Cf. Wallach, 935 F.2d at 456
(witness’s denial of gambling refuted by third-party
observations). Most important, the District Court, as the trier
of fact for the due process claims, made no finding that the
prosecutor knew that Hussain’s code word testimony was false.
On the contrary, the Court stated, “The Government . . . ‘formed
a good-faith belief that the [alleged lies] referr[ed] only to
the already-known inconsistencies in [the witness’s] testimony
that were aired at trial.’” Cromitie II, 2011 WL 1842219, at *26
(quoting Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006))
(brackets in Cromitie II).
(3) The Prosecution’s Imputed Knowledge
33
In discussing with counsel Hussain’s apparently false
testimony about matters other than the $250,000 offer, the
District Court warned the prosecution that it acted at “its
peril” if it failed to observe its obligations. Trial Tr. 2019.
With respect to Hussain’s false testimony about the $250,000,
there is no reason to believe the prosecution could have
determined from third parties whether the testimony was false,
and the examination of Hussain on this topic, both by the
prosecution and the defense, thoroughly probed his claim that the
offer was made and that “$250,000” was a code word.
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The evidence undermining Hussain’s testimony about the
$250,000 was not only clear enough to show its falsity; it was
so forceful that no reasonable person could fail to recognize its
falsity. As Judge McMahon found, “[T]here can be absolutely no
question that [the $250,000] offer was made.” Cromitie I, 781 F.
Supp. 2d at 219. Thus, even if the prosecution in good faith
subjectively believed that Hussain’s testimony about the $250,000
was true, the prosecution “should have known,” Josephberg, 562
F.3d at 494, that it was false.
(4) Likelihood of Affecting the Jury
The very force of the evidence that shows that no reasonable
person could believe Hussain’s testimony about the $250,000, is
sufficient not only to charge the prosecution with imputed
knowledge, but also to show that the jury had to recognize that
the testimony was false. Furthermore, the jury heard Hussain
admit that he gave Cromitie the “impression” that he would “make
a lot of money.” Trial Tr. 1869. There is thus no “reasonable
likelihood that the false testimony could have affected the
judgment of the jury.” Agurs, 427 U.S. at 103. Indeed, we see
no likelihood at all.
The defendants’ claim of knowing use of perjured testimony,
though substantial, does not warrant reversal.
-71-
IV. Other Claims
The defendants’ remaining claims do not require extended
discussion. They challenge (1) the admission of video evidence,
(2) the prosecutor’s alleged vouching for Hussain’s credibility,
(3) the denial of a mistrial because the jury saw two portions
of recorded statements that were not in evidence, and (4) the
imposition of mandatory minimum sentences.
(A) Admission of Video Evidence
The defendants argue that the District Court abused its
discretion by admitting a 20-second video of a demonstration
explosion set off by a bomb placed on the back seat of a car and
constructed with the type and amount of material that the
defendants thought was in the fake devices they were planning to
use in the operation. Br. for David Williams at 37. The
Government introduced the video to establish that the fake bombs,
if real, would have qualified as “destructive devices” under 18
U.S.C. § 2332(c)(2)(A) and 18 U.S.C. § 921(a)(4). The evidence
was plainly relevant and not unfairly prejudicial, see Fed. R.
Evid. 403, and its admission was well within the District Court’s
discretion.
(B) Vouching for Witness’s Credibility
The defendants argue that the prosecutor improperly vouched
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for Hussain’s credibility by pointing out in his closing
summation that Hussain had a reason to be truthful because he
knew that he faced possible deportation if he committed perjury.
Because no defendant objected at trial, we review this claim only
for plain error.
Although a prosecutor should not vouch for a witness’s
truthfulness, see United States v. Carr, 424 F.3d 213, 227 (2d
Cir. 2005), it is not improper to point to evidence indicating
a witness’s awareness of a particular adverse consequence of
testifying falsely, beyond the risk of perjury applicable to all
witnesses. See, e.g., United States v. Arroyo-Angulo, 580 F.2d
1137, 1147 (2d Cir. 1978) (lying risked loss of sentence
reduction in cooperation agreement). Hussain had testified that
he feared he would be deported if he was convicted of perjury,
and the prosecutor was entitled to remind the jury of that
testimony.
(C) Jury’s Exposure to Extra-Record Evidence
The defendants argue that their rights were violated because
the jury briefly had access to transcripts of two recorded phone
conversations that had not been admitted in evidence. The jurors
had binders that included transcripts of conversations that they
were instructed to use as aids when listening to recordings
-73-
admitted into evidence. The transcript of a phone call between
defendant David Williams and his father (“David Williams
transcript”) was inadvertently included in one juror’s binder
although the recording of that call was not in evidence. The
transcript of a phone call between defendant Onta Williams and
a female friend (“Onta Williams transcript”) was inadvertently
included in each juror’s binder although the recording of that
call was not in evidence. David Williams was recorded telling
his father that his entrapment defense was “dead” because he had
agreed to participate in the operation the first time it was
proposed to him. See JA 4516. Onta Williams was recorded saying
that he was offered $10,000 to participate in the operation. See
JA 4512-13.
After the jury discovered and informed the District Court
that these transcripts were included in its binders, the District
Court questioned each of the jurors to determine the extent of
their exposure to the transcripts and whether they could continue
to deliberate without considering this extra-record information.
All of the jurors except the juror whose binder contained the
David Williams transcript statement agreed, and that juror was
excused.
Based on the remaining jurors’ responses, Judge McMahon
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concluded that none of them had reached the page of the David
Williams transcript on which the “dead” remark appeared, the Onta
Williams transcript was actually favorable to the defense (as
contradicting Hussain’s testimony that he had offered only
$5,000), and the jurors’ ability to disregard the episode and
decide the case fairly was entirely credible. The District Court
gave an emphatic curative instruction.
After carefully reviewing all of the circumstances, the
District Court, correctly applying applicable standards, denied
the defendants’ motion for a mistrial. We see no basis for
disturbing that ruling.
(D) Sentencing
The defendants argue that their 25-year mandatory minimum
sentences are invalid because of sentencing entrapment or
sentencing manipulation. Specifically, they point out that their
mandatory minimum sentences resulted from convictions on Counts
5 and 6, punishing conspiring and attempting, respectively, to
acquire and use anti-aircraft missiles (18 U.S.C. § 2332g), and
that the idea of planning the use of such missiles originated
with the Government. Indeed, although the District Court
rejected the defendants’ sentencing argument, see United States
v. Cromitie, No. 09 Cr. 558(CM), 2011 WL 2693297, at *4 (S.D.N.Y.
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June 29, 2011) (“Cromitie III”), the Court found that the
Government created the fake Stinger missiles “for the sole
purpose” of subjecting the defendants to 25-year mandatory
minimum sentences, id. at *2.
Sentencing entrapment, a concept we have said has not yet
been recognized in this Circuit, see United States v. Gomez, 103
F.3d 249, 256 (2d Cir. 1997), would, if applicable, preclude a
sentence where “outrageous official conduct” has “overcome[] the
[defendant’s] will,” id. (internal quotation marks omitted). The
District Court ruled there was no basis for such a finding in
this case, see Cromitie III, 2011 WL 2693297, at *1. We agree.
Sentencing manipulation, which we have also not yet
recognized, see United States v. Gagliardi, 506 F.3d 140, 148 (2d
Cir. 2007), would, if applicable, require a showing of
“outrageous” misconduct, see Bala, 236 F.3d at 93.
The Government urged the District Court to reject the claim
of sentencing manipulation by analogy to narcotics cases in which
undercover agents frequently probe what quantities of drugs a
suspect will sell, an inquiry that can expose the suspect to a
range of increasing sentences based on drug quantities. See
United States Sentencing Guidelines § 2D1.1(c). The District
Court rejected the Government’s analogy to narcotics cases
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because, unlike the defendants in this case, the suspects in
those cases had previously been identified as participants in the
type of criminal conduct with which they were charged. See
Cromitie III, 2011 WL 2693297, at *3. Whether or not the analogy
applies to all sentencings, we deem it applicable in this case
where the principal defendant expressed early on an inclination
to commit acts of terrorism and his co-defendants promptly and
enthusiastically joined the plot with full awareness that it
included launching anti-aircraft missiles. The Government did
nothing improper by testing to see just how far these defendants
would go in committing acts of terrorism.
We note that the District Judge determined that, even if
the missiles had not been part of the plot, the terrorist
activities directed at the Riverdale synagogues would have
authorized a life sentence under the advisory Sentencing
Guidelines, see id. at *2, and, as she told Cromitie at
sentencing, she would have “no mind to sentence you to less than
25 years.” JA 2713.
Ultimately, the District Court concluded that it lacked
authority to sentence below the statutory 25-year mandatory
minimum. See id. at *5. Whether or not that is so, there was no
error in imposing mandatory minimum sentences in this case.
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Conclusion
Judge McMahon skillfully conducted a difficult trial,
dealing meticulously in several carefully written opinions with
issues that arose in extraordinary circumstances. The resulting
judgments of convictions and sentences of all four defendants are
affirmed.
-78-
1 DENNIS JACOBS, Chief Judge, concurring in part and
2 dissenting in part:
3 I concur as to the affirmance of the convictions of
4 David Williams, Onta Williams, and Laguerre Payen, and I
5 concur in the majority’s rejection of any argument premised
6 on outrageous government misconduct, and its rejection of
7 other defense arguments. I respectfully dissent in part
8 because James Cromitie was entrapped as a matter of law.
9
10 I
11 As to entrapment, it is common ground on this panel
12 that the government induced Cromitie to commit the terrorist
13 crimes charged, and that it became the government’s burden
14 to prove beyond a reasonable doubt that Cromitie was
15 “predisposed” to commit them. See United States v. Bala,
16 236 F.3d 87, 94 (2d Cir. 2000) (“[If] a defendant presents
17 credible evidence of government inducement, then the
18 prosecutor must show predisposition beyond a reasonable
19 doubt.”). The government had to do that by proving any of
20 three things: “(1) an existing course of criminal conduct
21 similar to the crime for which the defendant is charged, (2)
22 an already formed design on the part of the accused to
23 commit the crime for which he is charged, or (3) a
1 willingness to commit the crime for which he is charged as
2 evidenced by the accused’s ready response to the
3 inducement.” United States v. Brunshtein, 344 F.3d 91,
4 101-02 (2d Cir. 2003) (internal quotation marks and
5 alteration omitted). Since Cromitie had no similar criminal
6 background, and since the government informant enlisted him
7 only after a dogged and year-long campaign of nagging,
8 pursuit, and temptation (with money, a business, and a
9 Mercedes-Benz), this panel is in agreement that the
10 government had to prove an “already formed design.”
11 In my view, there was no evidence of an “already formed
12 design.” At the outset, Cromitie told of wanting to “do
13 something to America” and “die like a martyr,” but this big
14 talk does not amount to a design--to do what?--never mind
15 one that was “already formed.” The design here was entirely
16 formed by the government, and fed to Cromitie. He liked it,
17 but he didn’t form it.
18
19 II
20 The term “already formed design” is defined away by the
21 majority: it is “only a rather generalized idea or intent to
22 inflict harm on” the interests of the United States. Maj.
23 Op. at 25. That definition of the term is more its converse
2
1 because an idea or intent does not amount to a design, and
2 one that is “generalized” is unformed; the “generalized
3 idea” of an act is not a disposition to do it; and
4 entrapment is the very process of mobilizing a generalized
5 idea that otherwise would remain an idle thought. Thus the
6 majority opinion renders entrapment untenable as a defense.
7 Unsurprisingly, the majority’s definition is incompatible
8 with precedent.
9 “Formed design” is one of the three ways that the
10 government may prove predisposition, as set out in United
11 States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933) (Hand,
12 J.): “an existing course of similar criminal conduct; the
13 accused’s already formed design to commit the crime or
14 similar crimes; [and] his willingness to do so, as evidenced
15 by ready complaisance.” Id. at 1008. The same short
16 catalog was repeated in somewhat different words in United
17 States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952) (Hand,
18 J.): “The proof of [predisposition] may be by evidence of
19 his past offences, of his preparation, even of his ready
20 compliance.”1 Id. (emphasis added) (internal quotation
1
As the majority points out, Sherman used the word
“prepared” as well as the word “preparation”; the majority
argues that (given the common root of the words) Judge Hand
meant “prepared” in the same sense as he meant “preparation”
a few lines later. The two words are used in different
senses, to suit distinct contexts. The first, as the
3
1 marks omitted). So an “already formed design” is one
2 sufficiently advanced that (before government solicitation)
3 the defendant had already “prepar[ed]” to do the crime.
4 Entertaining a “generalized idea” of a crime is several
5 critical steps removed from preparing to commit it. A
6 design that is “already formed” has taken shape, and assumed
7 parameters even if particulars remain open. A design
8 already formed is not (as here) inchoate, undirected, and
9 open to suggestion and revision in every respect.
10 The term “already formed design” takes meaning from its
11 company, appearing in a series of three related ways to show
12 predisposition: commission of the offense in the past, the
13 ready willingness to do it then and there, or a formed
14 design, which looks to the future. Existence of a formed
15 design matters only if it cannot be shown that the defendant
16 had already done analogous acts or had given ready assent.
17 The three can operate as alternatives only if they are
18 understood to be of comparable predictive force. There is
majority explains, conveys “the sense of being ready to
commit the offense once the opportunity is presented,” Maj.
Op. 26-27, which bears on whether Cromitie was “ready and
willing”; but proof of being “ready and willing” requires a
showing (beyond a reasonable doubt) of similar prior acts,
quick acceptance, or “preparation” in the sense of an
“already formed design.” The majority opinion thus
conflates predisposition (“ready and willing”) with a way of
proving predisposition (an “already formed design”).
4
1 great predictive force in a showing of past criminal acts
2 along the same lines. Similarly, a ready acceptance
3 bespeaks a complete absence of qualm or inhibition, and
4 likewise shows that the defendant’s will and disposition did
5 not run counter to the act and did not need to be overcome.
6 The predictive force of a formed design is sufficient
7 on its own only if a course of conduct is already so well
8 advanced in the defendant’s mind that one can be sure
9 (beyond a reasonable doubt) it was not planted by an agent
10 provocateur. Perhaps this is why we have never before found
11 sufficient evidence to prove that the accused had an already
12 formed design without there also being sufficient evidence
13 of a relevant criminal history or of ready assent to the
14 government’s proposal. Cf., e.g., United States v.
15 Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980) (“All of this
16 evidence [of the defendants’ prior criminal conduct] could
17 support a jury finding either that the [defendants] had been
18 engaged in a similar ‘course of criminal conduct,’ or had
19 already formed the design to sell cocaine and were merely
20 looking for a buyer.”).
21 It therefore is not enough to infer a formed design to
22 commit an act of terror from a sense of grievance or an
23 impulse to lash out. These disquiets are common, and in
24 most people will never combust.
5
1 III
2 With this in mind, there is scarce evidence of any
3 “already formed design” on the part of Cromitie. As the
4 majority opinion explains, evidence of predisposition must
5 be independent of the government’s inducement. See Jacobson
6 v. United States, 503 U.S. 540, 550 (1992). Cromitie’s
7 statements at his initial meeting with Hussain therefore
8 would be probative only if they showed Cromitie’s thinking
9 prior to inducement. And I agree that Jacobson allows
10 consideration of certain acts or statements that follow
11 government inducement. See United States v. Brand, 467 F.3d
12 179, 192 (2d Cir. 2006). Thus statements that Cromitie made
13 long after the inducement process began might show
14 predisposition, but only if they refer back to Cromitie’s
15 state of mind prior to inducement or if they tend to show
16 that Cromitie came up with the criminal design on his own.
17 Cromitie’s statement that he had been thinking about
18 attacking America “since [he] was [seven]” is a backward-
19 looking statement, but it is well short of a formed design,
20 and shows only that any such ideation was permanently
21 postponed.2 Likewise, Cromitie’s statement that he was the
22 one who first approached Hussain the day they met also
2
When I was seven, I wanted to be a fireman.
6
1 refers back to Cromitie’s state of mind prior to the
2 inducement. But it proves nothing about any “design”
3 Cromitie might have had; it might perhaps bear on whether
4 there was inducement, except that it is common ground that
5 inducement was offered.
6 The majority opinion relies heavily and passim on post-
7 inducement acts and statements that do not reflect the
8 defendant’s state of mind before the initial inducement, and
9 therefore do not bear on predisposition. See Jacobson, 503
10 U.S. at 551-52. Cromitie did what he was induced to do, and
11 seemed happy doing it, but that cannot suffice; otherwise
12 the induced act would always evidence the predisposition to
13 do it. All of Cromitie’s statements listed in the
14 majority’s opinion, Maj. Op. 39-40, regarding specifics of
15 the attack--such as targets--were made in direct response to
16 Hussain’s badgering Cromitie to form a design or make a
17 plan. For example, Cromitie’s statement about “hit[ting]
18 the bridge” was a direct response to Hussain’s asking
19 “[w]hat is the, what, I mean, in your mind, were your best
20 targets here? In New York?” And Cromitie’s statement about
21 “get[ting] a synagogue” occurred later in that same
22 conversation and context. These statements, which occurred
23 months after the first meeting in June 2008, cannot be used
24 to prove predisposition under Jacobson. Hussain’s
7
1 industrious labor to convince Cromitie to join a terrorist
2 plot--including Hussain’s exploitation of Cromitie’s “love”
3 of and respect for Hussain and Hussain’s offers of large
4 sums of money to the impoverished Cromitie--colors these
5 statements, along with many others cited by the majority3;
6 they show the government’s successful inducement, not
7 Cromitie’s predisposition.
8 No reasonable jury weighing only the evidence of
9 predisposition admissible under Jacobson could conclude that
10 Cromitie had an “already formed design” to commit an act of
11 terror. Wanting to “die like a martyr” and “do something to
12 America” is not a formed design, and certainly not
13 “preparation,” Sherman, 200 F.2d at 882. These are wishes,
14 not designs. One amounts to no more than the boastful piety
15 of a foolish man; the other could be banter in any faculty
16 lounge.
17 It is clear that Cromitie in his unmolested state of
18 grievance would (for all the evidence shows, and as the
19 district court found) have continued to stew in his rage and
3
For instance, Cromitie’s statement regarding Allah
giving him his “own will,” and “if I’m doing something, it’s
because I wanted to do that for so long,” Maj. Op. 40-41,
were made during a long conversation in February 2009,
months after Hussain’s concerted inducement had begun.
During that same conversation, Hussain pushed Cromitie to
scout targets and recruit other members from the mosque.
8
1 ignorance indefinitely, and had no formed design about what
2 to do. The government agent supplied a design and gave it
3 form, so that the agent rather than the defendant inspired
4 the crime, provoked it, planned it, financed it, equipped
5 it, and furnished the time and targets. He had to, because
6 Cromitie was comically incompetent, possibly the last
7 candidate one would pick as the agent of a conspiracy.4
8 There simply was no evidence of predisposition under our
9 settled definition of that term.
10 I would therefore reverse Cromitie’s conviction as the
11 product of entrapment. At the same time, I agree with the
12 majority that the other defendants were not entrapped, and I
13 therefore concur in the affirmance of their convictions.5
4
En route to the terror site, the government agent
directed Cromitie to assemble the bombs; but he couldn’t
figure it out, and had to be shown how to do it. At the
site, the government agent directed him to hide the bombs in
the trunk of the car; but he couldn’t get the trunk open, so
he put them in the back seat. The government agent then
directed him to arm the bombs, but as they drove away from
the supposed car-bomb parked in front of the synagogue,
Cromitie exclaimed “holy s***, I forgot to turn it on.”
The majority opinion argues that competence is not a
consideration in the entrapment defense. I agree, up to a
point; but Cromitie’s bumbling compelled the exasperated
government agent to treat him as a puppet. Certainly, it
shows how little danger Cromitie posed to the community.
5
As the majority points out, the district court has
conscientiously demonstrated with telling circumstantial
evidence that each defendant (other that Cromitie) readily
responded to Cromitie’s offer to join the plot. I would
affirm based on the district court’s reasoning.
9
United States v. Cromitie (Williams)
Court: Court of Appeals for the Second Circuit
Date filed: 2013-08-23
Citations: 727 F.3d 194
Copy CitationsCombined Opinion