United States Court of Appeals
For the First Circuit
No. 08-2101
UNITED STATES OF AMERICA,
Appellee,
v.
FRANTZ DePIERRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Eduardo Masferrer, by appointment of the court, with whom
Masferrer & Associates was on brief for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney, was on brief for
appellee.
March 17, 2010
BOUDIN, Circuit Judge. After selling drugs on two
occasions to a government informant, Frantz DePierre was tried and
convicted of distributing cocaine in powder form (in the first
sale), 21 U.S.C. § 841(a)(1) (2006), and of distributing 50 grams
or more of cocaine base (in the second), id., which carries a ten-
year minimum sentence, id. § 841(b)(1)(A)(iii). In reviewing
DePierre's appeal, we begin with a brief overview of events, adding
details in the discussion of individual claims of error.
In January 2005, a confidential informant ("CI") working
with government agents received a call from DePierre. According to
the CI's later trial testimony, DePierre offered to sell the CI
crack cocaine. The CI, himself a former drug dealer, had been
working with agents to investigate firearm and drug sales in the
Haitian community in and around Boston, and the CI and DePierre had
had earlier contacts. In a follow-up recorded phone call by the
CI, primarily concerning proposed gun purchases, DePierre confirmed
that he had the "cookies," a reference to crack according to the
CI.1
The two men then agreed on a purchase by the CI of a
quantity of powder cocaine, although DePierre confirmed that he
could "[c]hef [it] up," meaning to cook the powder into crack. See
1
See generally Office of National Drug Control Policy, Street
Terms: Drugs and the Drug Trade, Crack Cocaine,
http://www.whitehousedrugpolicy.gov/streetterms/ByType.asp?intTyp
eID=2 (last visited February 25, 2010) (listing "cookies" as a
slang term for crack cocaine).
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United States v. Santiago, 566 F.3d 65, 68 (1st Cir. 2009) (noting
the meaning of "chef it up"). In early February 2005, the powder
sale was completed, but the federal agents decided to invite a
transaction involving crack, and further discussions between the CI
and DePierre ensued, with the CI pressing for crack rather than
powder and DePierre confirming that he could provide crack. In
March, DePierre sold the CI 55.1 grams of crack.
Following indictment, DePierre pled to one firearms
charge, three other firearms charges were dismissed, and trial
followed solely on the two drug charges. Without denying the two
sales, DePierre urged he had been entrapped, principally as to the
sale of cocaine base. The entrapment defense was submitted to the
jury, which after a four-day trial rejected the defense and
convicted DePierre on both charges. The judge sentenced DePierre
to ten years in prison, the statutory minimum for a sale of 50 or
more grams of cocaine base. DePierre now contests only the cocaine
base conviction and the ultimate sentence, albeit on several
different grounds.
DePierre's main contention on appeal relates to the
distinction between crack and cocaine base, critical at sentencing,
but we start with DePierre's conviction. Here, he claims that the
judge misinstructed the jury on his substantive entrapment defense
and, relatedly, that the judge erred at sentencing in rejecting
DePierre's counterpart claim that the government engaged in
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sentencing factor manipulation. Both arguments rest on the premise
that DePierre sought only to sell powder cocaine but was wrongfully
induced to sell crack.
Although DePierre does not say that the evidence
compelled the jury to accept the defense, a description of the
evidence on both sides provides context for the misinstruction
claim. DePierre had in his favor the facts that he initially
delivered powder cocaine and that further contacts had to be made
by the CI before crack was procured. One of the government agents
testified candidly that he sent the CI back to renew his efforts
precisely in order to see whether DePierre could be drawn into a
sale of crack, carrying with it the prospect of a higher sentence.
It may be this express admission that prompted the judge
to submit to the jury the entrapment claim, an obligation that
exists only where there is record evidence that "fairly supports"
the claim. United States v. Rodriguez, 858 F.2d 809, 812-14 (1st
Cir. 1988). Whether this is such a case may be debated--there is
no rule that the agent must stop with the first crime--but it is
hard to fault the trial judge for avoiding the risk that an
appellate court might say later that the issue should have been
left to the jury.
Under the precedents, once the defendant makes a
preliminary showing, the burden shifts to the government to prove
beyond a reasonable doubt one of two things, either of which
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defeats the defense: that the government did not wrongfully induce
the accused to engage in criminal conduct or that the accused had
a predisposition to engage in such conduct absent the inducement.
Mathews v. United States, 485 U.S. 58, 63 (1988); Rodriguez, 858
F.2d at 812, 814-15. Given the burden-shifting, the term "defense"
may be thought to understate the government's full burden.
However, in practical terms the defense is difficult for
the defendant because the threshold that must be met to show
wrongful inducement is a high one. By their nature, "stings" and
other such long-permitted operations of law enforcement do "induce"
crimes, if that word is used in its lay sense. But it is settled
that only undue pressure or encouragement are forbidden. United
States v. Rogers, 102 F.3d 641, 645 (1st Cir. 1996); United States
v. Acosta, 67 F.3d 334, 337-38 (1st Cir. 1995). The reasons, see
generally United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir.
1994) (Breyer, C.J.), are too familiar to require repetition.
In this instance, the jury could easily reject the
entrapment defense for lack of impropriety, because of propensity
or both. If the CI were credited, DePierre's initial call was a
proposal to sell crack; DePierre made clear that he could cook the
powder into crack if desired; and although the CI made multiple
phone calls to DePierre to set-up the two drug sales, no evidence
indicates that the agents or the CI applied any undue pressure to
secure the crack or even had to overcome resistance. The
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government's desire to establish the more serious crime may offend
the fastidious, but inviting crime is the essence of sting
operations. Cf. United States v. Terry, 240 F.3d 65, 66-70 (1st
Cir. 2001); United States v. Egemonye, 62 F.3d 425, 427-28 (1st
Cir. 1995).
Still, DePierre was entitled to have any instruction given
be a proper one. He did not object to the original instruction nor
to a summary definition thereafter given at the jury's request; but
when the jury then asked for more guidance, the judge provided a
written summary of the inducement and predisposition criteria.
DePierre objected to the written summary's use of the word
"improperly" to qualify the character of the government conduct
required. The judge's summary said that the government must prove:
One, that the cooperating informant did not
improperly persuade or talk the defendant into
committing the crime. Simply giving someone an
opportunity to commit a crime is not the same
as improperly persuading him, but excessive
pressure by the cooperating informant can be
improper; OR
Two[,] that the defendant was ready and willing
to commit the crime without any improper
persuasion from the cooperating individual.
Courts have had difficulty tailoring a useful abstract
definition of what is wrongful inducement--this is equally true of
"reasonable doubt," see United States v. Whiting, 28 F.3d 1296,
1303-04 (1st Cir. 1994)--and have regularly resorted both to
examples and to adjectives to illuminate the concept. In the
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original instruction in this case, to which no objection was taken,
the district judge said, among other things, that entrapment
requires "some form of excessive pressure or some form of undue
sympathy," and the court gave examples of permissible conduct to
illustrate the difference between what was and was not entrapment.
There was nothing wrong in using the term "improper," and
a number of our own decisions have done so. Thus, in Santiago, we
said that the "inducement" prong requires "a degree of pressure or
. . . other tactics that are improper." 566 F.3d at 58; accord
Acosta, 67 F.3d at 337. Apart from attacking the word "improper,"
DePierre merely complains that the summary did not include examples.
But the court earlier had given examples, and taking the charge on
entrapment as a whole--the usual test, United States v. Taylor, 54
F.3d 967, 976 (1st Cir. 1995)--it fairly explained the concept to
the jury.
This brings us to DePierre's related claim of sentencing
factor manipulation, which occurs when the government "improperly
enlarge[s] the scope or scale of [a] crime" to secure a longer
sentence than would otherwise obtain. United States v. Vasco, 564
F.3d 12, 24 (1st Cir. 2009) (quoting United States v. Fontes, 415
F.3d 174, 180 (1st Cir. 2005) (alterations in original)); accord
United States v. Montoya, 62 F.3d 1, 3-4, (1st Cir. 1995). This
claim and the entrapment defense have evident similarities; the
claims may closely overlap in a single case (as they do here), and,
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confusingly, the term "entrapment" is sometimes used in describing
the manipulation claim. See United States v. Connell, 960 F.2d 191,
194 (1st Cir. 1992) (noting the nomenclature problem).2
But the entrapment defense in federal courts dates back
to the 1930s, see Sorrells v. United States, 287 U.S. 435 (1932);
2 LaFave, Substantive Criminal Law § 9.8(a), at 88-89 (2d ed. 2003),
creates a jury issue and can result in an acquittal, see Acosta, 67
F.3d at 337-38. Sentencing factor manipulation is a more recent
concept in this circuit (and some others) by which the judge, not
the jury, can adjust a sentence downward if the judge concludes that
the government has improperly enlarged the scope or scale of the
crime to secure a higher sentence. See Montoya, 62 F.3d at 3-4;
Connell, 960 F.2d at 194-97. The defendant bears the burden of
making such a showing. Jaca-Nazario, 521 F.3d at 57.
For sentencing factor manipulation, impropriety is the
main focus, although predisposition is sometimes described as
negating the claim, Jaca-Nazario, 521 F.3d at 58-59; United States
v. Gibbens, 25 F.3d 28, 31 & n.3 (1st Cir. 1994), and in this
circuit the threshold is very high, e.g., United States v.
2
Adding to confusion, this circuit uses the phrases
"sentencing factor manipulation" and "sentencing entrapment"
interchangeably, United States v. Jaca-Nazario, 521 F.3d 50, 57
(1st Cir. 2008), but other circuits vary, e.g., United States v.
Garcia, 79 F.3d 74, 75 (7th Cir. 1996) (distinguishing between
government inducement of a more serious crime and conduct merely
increasing the defendant's sentence); United States v. Jones, 18
F.3d 1145, 1152-53 (4th Cir. 1994) (sentencing entrapment
implicates defendant's predisposition but manipulation does not).
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Richardson, 515 F.3d 74, 86 n.8 (1st Cir. 2008) (requiring "an
extreme and unusual case" such as "'outrageous and intolerable
pressure' or 'illegitimate motive on the part of the agents'"
(quoting Montoya, 62 F.3d at 4)); Jaca-Nazario, 521 F.3d at 58
(requiring "extraordinary misconduct").
This comparatively high threshold owed something to
concerns about undermining detailed statutory and guideline
provisions designed to control variations in sentencing and,
conversely, perhaps to a perception that ordinary entrapment
doctrine has a close relationship to drawing the line between guilt
and innocence, where courts are especially protective. Montoya, 62
F.3d at 4; 2 LaFave, supra § 9.8(b), at 95 n.48 (discussing circuit
case law). Under our precedents, the adjectives are part of the
doctrine.
In all events, there was no wrongful manipulation here
under any phrasing of the standard. This is patent if the trial
judge believed the CI's statement that DePierre himself offered
crack in the first conversation; but in all events, the evidence
already discussed shows that the CI exerted no real pressure, let
alone undue pressure, to secure the sale of crack, which DePierre
showed no hesitation in providing. We add that manipulation
decisions by the sentencing judge are reviewed with deference, Jaca-
Nazario, 521 F.3d at 57, but given the evidence, no deference is
needed to sustain the decision here.
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This brings us to DePierre's main claim. The drug statute
requires that to generate the mandatory minimum ten-year sentence,
the sale or sales comprise 50 grams or more of "cocaine base." 21
U.S.C. § 841(b)(1)(A)(iii). The jury was instructed to determine
the nature and amount of the drug sold because these facts raise the
statutory maximum for drug distribution and trigger the requirements
of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). DePierre's
contention, which was preserved in the district court, is that the
statute should be read to apply only to that form of cocaine base
called crack, a position that some circuits have accepted.3
The statutory offense is defined as the sale (or other
defined acts) of any amount of any drug comprising "a controlled
substance," 21 U.S.C. § 841(a), and the distinctions as to the type
of controlled substance and the amount are primarily a concern of
the statutory provisions defining "[p]enalties," id. § 841(b);
United States v. Goodine, 326 F.3d 26, 31-32 (1st Cir. 2003).
Because the sale of any form of cocaine in any amount permits a
maximum sentence of 20 years, 21 U.S.C. § 841(b)(1)(C), DePierre's
sentence would not have been an Apprendi violation regardless of
3
Circuits limiting "cocaine base" to only crack (or to crack
and other types of smokable cocaine base) include United States v.
Higgins, 557 F.3d 381, 394-96 (6th Cir. 2009); United States v.
Edwards, 397 F.3d 570, 575-77 (7th Cir. 2005); United States v.
Vesey, 330 F.3d 1070, 1073 (8th Cir. 2003); United States v.
Hollis, 490 F.3d 1149, 1155-57 (9th Cir. 2007); United States v.
Munoz-Realpe, 21 F.3d 375, 377-78 (11th Cir. 1994); and United
States v. Brisbane, 367 F.3d 910, 912-14 (D.C. Cir. 2004).
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whether the drug were crack or some other form of cocaine. United
States v. Lizardo, 445 F.3d 73, 89-90 (1st Cir. 2006).
However, the character of the drug could affect the
judge's choice of sentences and, if the judge had wrongly classified
the drug here at issue as one for which Congress had aimed at higher
sentences, there might still be an error prejudicial to the
defendant. But the instruction given by the judge accords with how
this circuit has read the statutory term "cocaine base," so there
was no error in the instruction or in the verdict confirming that
the drug was cocaine base within the meaning of the statute.
Given the background supplied by United States v.
Robinson, 144 F.3d 104, 108 (1st Cir. 1998), it is enough to say
here that the rock-like substance known as crack is the most
familiar form of cocaine base, while powder cocaine is not cocaine
base but rather is a salt, most commonly cocaine hydrochloride. Id.
Although chemically similar (crack is made by cooking the powder
form), Congress deemed crack far more dangerous in its effects on
users and prescribed higher mandatory minimum and maximum sentences
for sale of cocaine base than for other forms of cocaine. United
States v. Manzueta, 167 F.3d 92, 94 (1st Cir. 1999).
DePierre, like others before him, argues that the statute
although referring explicitly to "cocaine base" should be judicially
restricted to only the specific form of cocaine base known as crack,
which (admittedly) was the main focus of Congress' concern. As it
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happens, some evidence indicates the substance here was crack and
at sentencing the judge repeatedly referred to it as crack; but to
rely on that would needlessly raise an evidentiary issue that
DePierre contests and also raise doubts about the continued vitality
of binding circuit precedent as to the meaning of the statute.
This circuit (along with a number of others) has read the
statute according to its terms and held that "cocaine base" refers
to "all forms of cocaine base, including but not limited to crack
cocaine." United States v. Anderson, 452 F.3d 66, 86-87 (1st Cir.
2006).4 Thus, the district court's instructions and the jury
verdict accorded with our precedent, and the mandatory minimum
sentence was properly imposed. This panel cannot overrule settled
circuit precedent absent supervening authority or some other
singular event. Anderson, 452 F.3d at 86.
DePierre says that Kimbrough v. United States, 552 U.S.
85 (2007), discussing the disparity between powered cocaine and
crack sentences, requires us to reconsider our view. But Kimbrough
was concerned with sentencing guidelines that do use the term
4
In this circuit, see United States v. Medina, 427 F.3d 88, 92
(1st Cir. 2005); United States v. Richardson, 225 F.3d 46, 49 (1st
Cir. 2000); and United States v. Lopez-Gil, 965 F.2d 1124, 1134-35
(1st Cir. 1992) (opinion on rehearing). For other circuits of the
same view, see United States v. Jackson, 968 F.2d 158, 162-63 (2d
Cir. 1992); United States v. Barbosa, 271 F.3d 438, 466-67 (3d Cir.
2001); United States v. Ramos, 462 F.3d 329, 333-34 (4th Cir.
2006); United States v. Butler, 988 F.2d 537, 542-43 (5th Cir.
1993); and United States v. Easter, 981 F.2d 1549, 1558 & n.7 (10th
Cir. 1992).
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"crack," and nothing it said involved a construction of the phrase
"cocaine base" that triggers the statutory minimum sentence.
Kimbrough uses the term "cocaine base" only once, calling "[c]rack
cocaine . . . a type of cocaine base." Id. at 94.
Kimbrough does also say that the statutory mandatory
minimums under 21 U.S.C. § 841 that are at issue here apply to
crack, 552 U.S. at 96, and that the statute "criminaliz[es] the
manufacture and distribution of crack cocaine," id. at 91, but these
correct observations do not resolve the question whether the
statutory minimums apply only to crack or rather to all forms of
cocaine base. Because of the circuit split this issue does need
resolution by the Supreme Court (at least in a case where its
resolution matters); but Kimbrough does not address the issue, let
alone decide it in DePierre's favor.
Affirmed.
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