United States v. Joost

United States Court of Appeals
For the First Circuit

No. 95-2032

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT M. JOOST,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cummings,* Circuit Judge.

Thomas G. Briody for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, and Kenneth P. Madden,

Assistant United States Attorney, were on brief for appellee.

August 7, 1996

*Of the Seventh Circuit, sitting by designation.

COFFIN, Senior Circuit Judge. Defendant Robert Joost

appeals his conviction for being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. 922(g). He

raises four issues: (1) whether the court erred in refusing to

give an entrapment instruction, (2) whether the felon-in-

possession statute exceeds Congress's Commerce Clause authority,

(3) whether the court properly relied on three convictions as

predicates for application of an enhanced penalty under the Armed

Career Criminal Act, and (4) whether the court erred in

dismissing a challenge to the jury composition and selection

procedures.

Only the first issue merits extended discussion in this

opinion. We discuss briefly our reasons for affirming the

court's handling of the second and third issues, and we uphold

the court's action on the jury challenge for the reasons set

forth in an unpublished opinion issuing simultaneously with the

present one, see United States v. Joost, No. 95-2031 (1st Cir.

July x, 1996). After careful consideration, we conclude that the

evidence merited a jury instruction on entrapment. We therefore

reverse and remand for a new trial.

Entrapment

The Record. Whether an instruction on entrapment should

have been given here presents both a close and an unusual issue.

While most entrapment cases focus on the question whether,

assuming improper inducement, the defendant carried the burden of

showing an unreadiness to commit the crime at issue, the ruling

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here was the threshold one that there had been, as a matter of

law, no showing of improper inducement. Moreover, the conduct of

the law enforcement officers did not involve any single incident

that could be said to be overbearing. And the defendant, while

no stranger to criminal activities, was pursuing them in a field

unrelated to dealing in firearms when this saga begins.

This, therefore, is a case out of the ordinary. Since an

entrapment instruction was refused, we must have before us all of

the significant evidence that the jury heard. While we shall

condense as much as we fairly can, we recognize that sometimes

"the devil is in the details" and that too skeletal a summary

risks overlooking something that could have persuaded a rational

jury. Here is our effort.

(1) The first month - a counterfeiting investigation.

Government efforts in this case occupied a period of four months,

from March 23 to July 24, 1994. One Tracy had been caught

passing counterfeit tokens at the Foxwoods Casino in Connecticut;

he turned informant and volunteered to give information to Rhode

Island authorities about the counterfeiting activities of his

partner, defendant. Tracy introduced defendant to Rhode Island

State Police detectives DelPrete and O'Donnell, who pretended to

be petty thieves, one of them having a cousin strategically

employed in the cashier's cage at the casino.

Defendant had been convicted thirty years earlier of three

breaking and entering felonies and had been imprisoned during

most of the 1970's and 1980's. Since his release in 1987, he had

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held jobs for only short periods. He had commenced his

counterfeiting activity in February 1994. His only current

legitimate source of income, and a poor one at that, was helping

to fabricate costume jewelry components.

His counterfeiting enterprise had suffered a setback when

slot machines at the casino were altered so that they rejected

the fraudulent tokens. When the detectives offered to pay fifty

cents for each dollar token after they supposedly cashed in the

tokens at the cashier's cage, defendant was delighted. Over the

next four months he realized between $5,000 and $6,000 from this

activity.

(2) The Second Month - The Focus Changes. The detectives

began to extend their visits to defendant, in the words of

DelPrete, "because he was bringing up other things for us to do."

Defendant talked of many criminal ventures, some past, and others

future possibilities. They included a vault robbery that

defendant said he had helped plan while in prison, a warehouse-

tractor/trailer job in Pennsylvania, and robberies of

supermarkets, a novelty shop, a Ground Round restaurant, an

armored car, a UPS truck, a VFW hall, and a night club ("Mustang

Sally's").

The detectives said that they had broken into houses, and

defendant spoke of being a safecracker in the 1960's and early

1970's. But, the detectives acknowledged, defendant represented

that he himself did not do armed robberies. Defendant exhibited

considerable criminal know-how as he critiqued various plans the

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detectives brought forward and demonstrated how to use weapons in

a robbery.

Defendant testified that most of the stories he told were

just stories, that they sprang from his imagination, his reading,

or fiction he had written in prison, that he "talked tough"

because he was dealing with "tough people" and wanted to sustain

their interest in him because they were his only means to realize

income from his counterfeiting.

On April 24, a month after the first meeting, defendant,

according to the detectives, introduced the subject of firearms

in discussing the possibility of doing an armored car robbery,

which might require them to shoot guards. According to

defendant, the detectives had been introduced to him as "guys

doing stick-ups," but he acknowledged that he was the first to

talk about doing a specific robbery. He also mentioned the

warehouse-tractor/trailer job possibility.

During the month following this conversation, the detectives

visited defendant on May 10 and May 13 and obtained counterfeit

tokens. Defendant said there were from twenty to thirty phone

calls during the entire four-month period. On May 20, defendant

once again mentioned the use of firearms in connection with

robbing an armored car facility.

(3) The Third Month - Dialogue and Diversion. The third

month of defendant's interactions with the detectives was

characterized by a number of unavailing requests by the

detectives that defendant procure a gun for use in Fall River,

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attempted dissuasion on the part of defendant, and numerous trips

to look over scenes of possible crimes.

On May 27 the detectives told defendant that one of them had

been harassed by a man in Fall River. They wanted defendant to

find them a gun so that they could shoot out some windows in the

assailant's house. Defendant responded that this was not a good

idea; bullets could be traced to firearms. A better idea would

be to burn or blow up the person's car. He also advocated use of

a shotgun, which would be harder to trace, and said he had one

"stashed."

On June 2, O'Donnell reminded defendant of his need for a

gun for the Fall River matter; defendant replied that he had seen

one person, but that that person did not have a gun. On June 11,

DelPrete, sporting a black eye from playing basketball, told

defendant that the Fall River assailant had given it to him and

again asked for a firearm. The request was repeated on June 16,

defendant replying that he had unsuccessfully approached two

people. Finally, on June 27, defendant was told that the Fall

River project was off; DelPrete told defendant that he had gotten

his revenge by smashing his adversary's car with a bat.

Meanwhile, defendant and the detectives took a number of

automobile trips. They drove to Pennsylvania to rob a

tractor/trailer, defendant having brought along some burglar's

tools. The operation was aborted when, as planned by the

detectives, they were stopped but not arrested by police. On

another occasion they followed a UPS truck but did not stop it.

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On still another occasion. they drove to southern Rhode Island to

look over a VFW hall that supposedly had a safe to be cracked.

And on the night of June 29-30, they spent hours in the woods

near the Meehan Armored Car facility.

Defendant described the "pattern" that he said he followed

in almost any conversation with the detectives:

I would first tell them the story, flush [sic] out
the details, then I would find perhaps some fault with
it and say, "We would have to go up there and check it
out." Ride, stall, talk, stall and then get them off
on to something else.

(4) The Fourth Month - Denouement. The record reveals no

action or talk about firearms between the end of June and July

21. DelPrete testified that the detectives kept in contact with

defendant, who was still producing counterfeit coins, and that he

apparently had only limited resources and expected an imminent

foreclosure on his house.

On Thursday, July 21, the detectives visited defendant at

his home, where he was soldering some costume jewelry. Defendant

said he made three dollars an hour but that his supplier, to whom

he owed money, was not going to pay him. O'Donnell interjected,

"By Monday you could have - - we owe you, Bob. We really do."

Then the detectives told defendant that their casino contact was

quitting the following month, but that he would make one last

exchange of money for 2500 counterfeit coins.

The conversation then turned to the detectives' plans to rob

a nightclub on Cape Cod, where they expected to get "12 grand

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easy." Since they understood that the bartender carried a gun,

they wanted defendant to obtain a firearm for them.

Then followed lengthy discussion about the planning.

Defendant asked when the detectives would accost the bartender

and how they would make their getaway. He also suggested a trip

to the nightclub. O'Donnell replied that this would delay the

heist for two more weeks. They did not want to wait that long

since they needed the money. Defendant then suggested making the

trip the following night. O'Donnell said they would stay down on

the Cape since the robbery would take place only a day or so

after such a trip. They recognized that defendant had to return

and decided to go without him. At this point, after some nine

pages of transcribed taped conversation in which the detectives

mentioned their need for a gun some six times, defendant said

that he could probably obtain a "piece."

They then discussed how to share the proceeds of the

robbery. They asked what defendant thought was fair. Defendant

said they did not have to give him anything, then said "I think I

can get a 38, 38." O'Donnell said that they would give him "a

piece of it" but if he came along he would get "33" [i.e., a

third]. Defendant replied that he was so broke that he couldn't

pay his bills and would take something. Once again, however,

defendant suggested driving down to look at the nightclub. Once

again the detectives refused, saying that the bartender was "ripe

for the picking." After more speculation from defendant about

what could go wrong, O'Donnell finally reaffirmed their intent to

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do the job on Sunday. Defendant then said he could "get you a

piece." O'Donnell wondered if defendant were "serious about it."

Defendant at this point spoke without any qualification, "I'll

get you a piece."

All of the above discussion was recorded on tape. Defendant

testified at trial that, on learning of the imminent departure of

the casino contact, he "panicked" at the prospect of losing the

only income he could get. He said that he wanted to delay so

that he could "talk [the detectives] back into trying to talk

this guy out of leaving the casino until we could do something

else." He added, "I was afraid I was going to lose them and lose

the opportunity to get some more money out of them."

Defendant testified that the next day, Friday, July 22, he

"ran into someone and mentioned to him that [he] was looking for

a gun." The "person," who turned out to be informant Tracy,

supplied defendant with a gun. On the same day the detectives

called defendant, who said, "All set. No problem." The

detectives called again on Saturday and defendant said he had the

weapon. On Sunday, the day of the supposed robbery, the

detectives went to defendant's house, where he handed them a 25-

caliber Barretta, which he said he had borrowed, together with a

clip and seven rounds of ammunition.

Defendant was arrested and subsequently indicted and tried

before a jury.

The Court's Rulings. At the end of the case, defendant

moved for an entrapment instruction. The court orally and

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succinctly summarized the evidence, not failing to identify five

occasions on which the government initiated discussion of

firearms. It did not, however, make mention of any financial

difficulty facing defendant or defendant's testimony as to his

"pattern" or strategy in dealing with the detectives.

The gist of her ruling is as follows:

Even if I were to take into account the cumulative
effect of the four contacts between May 27th and June
16th and the fifth contact on July 21st, I do not
believe that those conversations, those promptings,
those fabrications as stated by the detectives, rise to
the level of an improper inducement. That is not what
the case law stands for.

I think I cited [United States v.] Gendron[, 18

F.3d 955, 960 (1st Cir. 1994),] wherein then Judge, now
Justice Brier [sic] enumerates the types of things that
the First Circuit considers to be improper Government
inducement. I do not see the sort of urgency. I do
not see the insistence. I do not see intimidation or
threats, even taking all of those statements in the
light most favorable to the defendant.

In short, given the Defendant's criminal
proclivities which were announced by him and admitted
to by him as being in place even prior to the May 27th
initiation by the detectives, of discussion of guns and
given my finding that the Government's through the
state troopers['] actions in this case do not amount to
improper or undue influence, I do not believe that the
evidence in this case shows anything more [than] that
the Government created an opportunity for Mr. Joost to
become criminally involved and to possess the weapon in
question.1

The court made a second ruling in response to a jury

request. The jury had left the courtroom at 2:40 p.m. At 3:10

1 In fairness, we must acknowledge the anomalous situation
confronting the judge, who had previously presided over United

States v. Joost, No. 95-2031 (1st Cir. July xx, 1996), in which

defendant consistently invoked the Fifth Amendment in refusing to
answer questions about the statements that he was now saying were
merely "stories."

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it returned with a note saying, "Is entrapment a legal defense in

this case? And if so, could you please define it?" This

request, as the court acknowledged, was entirely understandable.

Counsel for defendant had devoted his entire opening to picturing

the defendant as concededly a felon who had knowingly possessed a

firearm but who had been led into the crime by the blandishments

of the detectives. He had concluded his remarks with the

statement that he would ask for an instruction on entrapment.

The court again refused to instruct on entrapment and simply

notified the jury that that defense did not apply in this case.

The jury finally reported its verdict at 4:30 p.m. In view of

the stipulation and concessions of defendant, made in conjunction

with his entrapment defense strategy, it is a matter of some

wonder what the jury had to consider after receiving the court's

ruling.

Legal Discussion. The principles governing entitlement to

an entrapment instruction are well known. The standard of review

is plenary. United States v. Rodriguez, 858 F.2d 809, 812 (1st

Cir. 1988). The policy behind the entrapment defense seeks to

deter the government from such zeal in pursuing a conviction that

its efforts result in the commission of a crime that likely would

not have occurred if the suspect had been left to his own

devices. Jacobson v. United States, 503 U.S. 540, 553-54 (1992).

The principle protects both citizens who are completely law

abiding and those who have violated laws but whose unreadiness to

commit a particular type of crime was overcome by excessive

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governmental efforts. The question is whether the government

"induced the defendant to perform a criminal act that he was not

predisposed to commit." Rodriguez, 858 F.2d at 814.

There are two elements to the entrapment defense: improper

government inducement to commit the offense and a lack of

predisposition on the part of defendant to commit such an

offense. United States v. Gendron, 18 F.3d 955, 960 (1st Cir.

1994). In order to be entitled to an entrapment instruction, the

defendant has the burden of producing "some evidence" on both

elements "sufficient to raise a reasonable doubt as to whether he

`was an "unwary innocent" rather than an "unwary criminal."'"

United States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993)

(citations omitted).

A court assessing the sufficiency of a defendant's showing

must be able to find more than a scintilla of evidence, more than

mere creation of an opportunity for criminal activity. See United

States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987). A "sting"

operation is not improper inducement if it merely provides an

opportunity to commit a crime, but proof of opportunity plus

"something else" may be adequate to meet a defendant's burden.

Examples found sufficient by courts include threats, forceful

solicitation and dogged insistence, playing upon sympathies or

the past relationship of a war buddy, and repeated suggestions at

a time when defendant had lost his job and needed money.

Gendron, 18 F.3d at 961.

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Moreover, while conclusory and self-serving statements by a

defendant are not sufficient, Rodriguez, 858 F.2d at 813, a

defendant's account, though self serving, may have weight if it

"is interlaced with considerable detail and has some

circumstantial corroboration in the record." Id. at 815.

Indeed, as we stated in Rodriguez, "[W]e recognize that

Rodriguez's soliloquy was self-serving -- but realistically, how

better than through his own testimony can a defendant meet his

entry-level burden?" Id.

In applying the above principles to this case, we emphasize

that we are not considering the sufficiency of a verdict for the

government on this record, if an entrapment instruction had been

given, but the closer question whether a rational jury could have

found entrapment if allowed to consider that defense. We first

review the most relevant precedents in this circuit.

In Rodriguez, 858 F.2d at 811, 815-16, a government agent

had designed a lucrative drug deal, made the initial approach to

defendant, and solicited forcefully with "dogged insistence,"

making four calls in one day. The defendant had testified in

what the court characterized as a self-serving soliloquy, but one

in considerable detail and with some corroboration. We held it

error for the district court to have refused to give an

entrapment charge. A year later, in United States v. Campbell,

874 F.2d 838, 845 (1st Cir. 1989), where the government had set

up a drug deal through an informant who had been befriended by

defendant, we upheld the language of the entrapment charge and

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rejected the government's suggestion that the charge need not

have been given.

In Gendron, 18 F.3d at 961, then Chief Judge Breyer listed

the various examples of improper inducement we have mentioned

above, including a reference to Rodriguez's "dogged insistence,"

and also noted United States v. Kessee, 992 F.2d 1001, 1003 (9th

Cir. 1993). In Kessee, defendant, after initially refusing an

informant's request to enter an illegal drug deal, yielded to

further requests after he lost two jobs and needed money for food

and rent. Defendant had initiated several calls and had proposed

selling drugs to the informant, and had claimed to have engaged

in over fifty drug deals. He testified that he lied to obtain a

sentence reduction for cooperation, that he carried a gun because

of fear, and that he had tried to impress the informant. The

court reversed the trial court, holding that an entrapment

instruction should have been given, because only the jury should

have assessed the truth of defendant's testimony. Id. at 1003-4.

Most recently, in United States v. Acosta, 67 F.3d 334, 338

(1st Cir. 1995), an informant, seeking to obtain a firearm from

defendant, engaged in "a campaign of persistent calls . . .

before [defendant] responded, apparently several weeks later."

There were no threats, appeals to sympathy, relentless trickery,

or extravagant rewards. While we held the evidence withstood a

challenge to sufficiency, we observed that the facts occupied the

"middle ground between what is plainly proper and what is plainly

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improper." We said that if the issue had not been submitted to

the jury, we would have reversed.

In the light of these precedents, we now consider some of

the evidence favorable to an entrapment defense. First, there is

the extended period of time, three months, before the defendant

produced a firearm, the latter two months consisting of active

solicitation by the detectives following their requests for a

weapon. A jury might have believed that what began as an

investigation of counterfeiting was transformed into an effort at

entrapment once the detectives perceived that possibility. When

defendant failed to take the bait the first time, they repeated

their effort with even more urgency.

Second, the jury could have found that the detectives, with

full knowledge of the dire financial straits in which defendant

found himself, deliberately created a dependency relationship in

their continuing practice of paying substantial sums for his

counterfeit tokens. The lure of continuing payment could be

looked on as more than the "`greed or . . . lure of easy money'"

found unpersuasive as evidence of entrapment in United States v.

Panet-Collazo, 960 F.2d 256, 259 (1st Cir. 1992) (citing Coady,

809 F.2d at 121).

A third factor that the jury could consider as evidence of

"urgency" and "insistence," contrary to the district court's

reaction, is the number, frequency, and immediacy of the

detectives' contacts, involving both personal visits and phone

calls. A fourth factor, which might well have been considered

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the "plus" added to "opportunity," was the detectives' renewal,

in a context of urgency (the insistence on robbing the nightclub

on Cape Cod within several days' time), of their request for a

firearm, conjoined with the jolting news of the imminent

departure of their casino contact source of funds. In denying

the request for an entrapment charge, the district court made no

mention of defendant's financial stringency or the arguable

impact of the news of this formidable threat to continued income.

A fifth factor entering our assessment is defendant's

testimony about his motive, strategy, and "pattern" of "stall,

talk, ride, and change the subject." The district court included

defendant's "discussion of guns" in her reasons for finding no

basis for a rational conclusion of improper inducement. But

defendant's story of inventing escapades, finding holes in them,

suggesting exploratory trips, and inventing excuses for not

producing a gun is both detailed and corroborated by the

evidence. It may well be that a jury would dismiss all of this

as a pack of lies, but it seems to us that this was a task for

the jury, not the judge.

We therefore conclude that enough evidence of inducement was

introduced to meet defendant's burden on this first prong of the

entrapment defense. As for the absence of predisposition prong,

much of what we have pointed to is relevant. We must acknowledge

that defendant was certainly predisposed to commit the crime of

counterfeiting, but the question is whether he was predisposed to

commit the crime of procuring and possessing a firearm before the

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government intervened. See Jacobson, 503 U.S. at 549. The span

of time that elapsed before a gun was produced, the excuses,

delays, and defendant's explanation of his strategy persuade us

that defendant met his burden on this prong as well. He

therefore must be retried.

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Remaining Issues

Constitutionality. Defendant challenges the district

court's denial of his pretrial motion to dismiss the indictment

on the ground that 18 U.S.C. 922(g) exceeded Congress's

Commerce Clause authority under the reasoning of United States v.

Lopez, 115 S. Ct. 1624 (1995). This issue is no longer open in

this circuit. See United States v. Abernathy, 83 F.3d 17, 20

(1st Cir. 1996); United States v. Bennett, 75 F.3d 40, 49 (1st

Cir. 1996). The district court ruled correctly.

Validity of predicate convictions. Defendant challenges the

court's imposition of an enhanced thirty-year sentence under the

authority of 18 U.S.C. 924(e), claiming error in its holding

valid three 1964 Rhode Island convictions for breaking and

entering. Although discussion of sentencing at this time is

unnecessary in light of our conclusion that defendant's

conviction must be vacated, we briefly respond.

Defendant offered his own signed, but unsworn, statement

that he did not have counsel when he entered nolo contendere

pleas on the three state convictions. The government, however,

introduced docket cards maintained by the Attorney General, each

indicating, following the printed word "Counsel," the name of Leo

McGowan, now deceased, then a part-time public defender. Police

records also showed representation by McGowan in the complaints

and warrants. In addition, the face sheets accompanying the

convictions bore, in pencil, the name "Bevilacqua," then a

prominent criminal defense lawyer.

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The district court found nothing in the records to hint of

invalidity and viewed defendant's statement to be completely

incredible. The court noted, as well, that the convictions had

been entered more than a year after Gideon v. Wainwright, 372

U.S. 335 (1963), had required counsel in felony cases and that

Rhode Island had, for more than twenty years before the

convictions, followed the practice of appointing counsel in such

cases. We detect no error in the court's ruling that defendant

failed to produce sufficient credible evidence to rebut the

presumption of constitutional validity that arose from

introduction of certified copies of the convictions. See United

States v. Tracy, 36 F.3d 187, 197 (1st Cir. 1994).

For reasons stated, the judgment is reversed and the case is

remanded for a new trial.

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