United States v. Shane Hare

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4758

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHANE ELLIOTT HARE, a/k/a Play,

Defendant - Appellant.

No. 14-4770

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY ANTOINE WILLIAMS, a/k/a “J”,

Defendant - Appellant.

No. 14-4832

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO EDWARDS, a/k/a Tank,

Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00650-DKC-1; 8:13-cr-00650-DKC-2; 8:13-cr-
00650-DKC-3)

Argued: January 28, 2016 Decided: April 19, 2016

Before SHEDD and FLOYD, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Shedd and Judge Biggs joined. Judge Shedd wrote
a separate concurring opinion.

ARGUED: Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA,
Columbia, Maryland, for Appellants. Rod J. Rosenstein, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Michael Lawlor, LAWLOR & ENGLERT, LLC,
Greenbelt, Maryland, for Appellant Williams. Jonathan Alan
Gladstone, Annapolis, Maryland; Marta K. Khan, THE LAW OFFICE OF
MARTA K. KHAN, LLC, Baltimore, Maryland, for Appellant Edwards.
Joseph R. Baldwin, Assistant United States Attorney, Jennifer R.
Sykes, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

2
FLOYD, Circuit Judge:

A jury convicted Appellants Shane Hare, Gregory Williams,

and Antonio Edwards of drug, robbery, and firearm offenses based

on their participation in a plan to rob a cocaine “stash house.”

Unbeknownst to Appellants, the stash house did not actually

exist, but was fabricated by undercover federal agents as part

of a sting operation. Appellants challenge the district court’s

denial of their motion for discovery into potential race

discrimination by law enforcement and motion to dismiss the

indictment on due process grounds. They also challenge various

other aspects of their convictions. For the reasons set forth

below, we affirm.

I.

In February 2013, the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF) received information from a confidential

informant identifying Marvin Bowden as an armed drug trafficker

and suspect in several burglaries, armed robberies, and home

invasions in Prince George’s County, Maryland. Based on this

information, ATF and the Prince George’s County Police

Department (PGPD) initiated an undercover operation whereby they

would present Bowden with the opportunity to rob a fictitious

cocaine stash house and, if all went according to plan,

3
ultimately arrest him and any accomplices for conspiring to

traffic drugs and related crimes. 1

On April 19, 2013, PGPD undercover detective William

Weathers met with Bowden to inform him of a potential

opportunity to rob a drug stash house. Detective Weathers

explained that he knew someone involved in drug trafficking who

was looking for a group of people to help him rob a stash house

containing several “bricks” of cocaine. J.A. 42, 246. In

response, Bowden stated “that’s what I do!” several times and

indicated that he usually worked with two or three other people.

J.A. 42. Bowden and Detective Weathers discussed the robbery

further before Bowden left, telling Detective Weathers to let

him know how many people to bring.

On May 3, 2013, Detective Weathers again met with Bowden

and introduced him to ATF Special Agent Christopher Rogers, also

acting undercover. 2 Agent Rogers told Bowden that he was a drug

courier for a Mexican cartel whose job was to transport 5

kilograms of cocaine each month from the cartel’s stash house in

Baltimore to Richmond, Virginia. Agent Rogers explained that he

1 ATF has conducted such investigations, also known as “home
invasion” investigations, across the country in recent years.
See, e.g., United States v. Davis, 793 F.3d 712 (7th Cir.
2015)(en banc); United States v. Black, 733 F.3d 294 (9th Cir.
2013); United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
2 This meeting and the subsequent three meetings between
Agent Rogers, Bowden, and Appellants were recorded and
transcribed.

4
wanted to rob the stash house because he was unhappy with his

pay and needed an experienced crew because the house, which

contained an additional 10 to 15 kilograms of cocaine, was

guarded by three heavily armed men. Bowden agreed to commit the

robbery, stating that he had a crew of three or four people and

“that’s what we do for a living.” J.A. 43. Agent Rogers asked

if Bowden had weapons and Bowden confirmed that he did, again

stating, “that’s all we do!” Id.

On May 9, 2013, Agent Rogers met with Bowden and his crew,

consisting of Appellants Hare, Williams, and Edwards. Bowden

himself recruited Appellants, none of whom were previously known

to ATF. At the meeting, Agent Rogers repeated his story of

being a disgruntled drug courier looking for a crew to rob his

cartel’s stash house. Agent Rogers stated that he wanted to

keep 2 kilograms of cocaine for himself but the crew could

divide whatever else they were able to seize, emphasizing that

the stash house contained 10 to 15 kilograms of cocaine. He

also cautioned that the stash house guards had a “chopper”

(i.e., an automatic weapon). The crew (led by Edwards)

discussed how to execute the robbery. They decided that the

fastest two, Hare and Williams, would enter first while shouting

“police!” and secure the chopper. Bowden and Edwards would

follow and secure the guards using zip ties and duct tape. If

necessary, Appellants and Bowden would shoot the guards below

5
the waist but would not shoot to kill. When Agent Rogers asked

if Appellants had weapons, Edwards replied “[e]verybody got

their own gun,” and Williams confirmed, “[t]hat ain’t no

problem.” J.A. 780. Edwards also proposed a “Plan B” in case

they were unable to enter the stash house. Under Plan B, Bowden

and Appellants would pretend to rob Agent Rogers of his 5

kilogram shipment, and the group would split the lesser amount.

Agent Rogers stated that he could procure a rental car for their

getaway. Appellants agreed to the plan and gave Agent Rogers

their phone numbers.

Appellants, Bowden, and Agent Rogers next met on May 14,

2013. Agent Rogers informed the group that his next drug pick-

up would be at 1:00 p.m. two days later, on May 16, which is

when the robbery would occur. Edwards confirmed that the group

was “ready.” J.A. 795. Agent Rogers advised that they should

be assembled by 10:00 a.m. on the day of the robbery, and Bowden

proposed staying in a hotel the night before so they would

already be together. The crew (again led by Edwards) reviewed

the plan (i.e., Plan A), including that once Agent Rogers

entered the stash house to pick up his shipment, Bowden and

Appellants would burst in and Agent Rogers would “hit the floor”

to avoid getting shot. J.A. 798. Bowden and Appellants would

also wear gloves and get haircuts to avoid leaving fingerprints

or DNA. When Agent Rogers asked about their weapons, Williams

6
confirmed that they would bring “hand tools” and potentially an

automatic pump shotgun. The group again discussed Plan B if

Appellants and Bowden could not enter the stash house to execute

Plan A.

On May 16, 2013, Bowden and Appellants met Agent Rogers at

a storage facility, which was the predetermined staging location

for the robbery. The crew confirmed that they were ready to

proceed and reviewed both Plan A and Plan B. Williams confirmed

that they would be armed. Agent Rogers then gave the take-down

signal and ATF agents surrounded the group, arresting Bowden and

Appellants. ATF agents recovered a Kimber brand firearm from

inside a locked glove box in Bowden’s vehicle, a Beretta brand

firearm that Hare had thrown under the vehicle, a black mask,

and a pair of gloves.

Appellants were each charged with the same four counts: (1)

conspiracy to interfere with commerce by robbery (i.e., a “Hobbs

Act” robbery), in violation of 18 U.S.C. § 1951(a); (2)

conspiracy to possess with the intent to distribute cocaine, in

violation of 21 U.S.C. § 846; (3) conspiracy to possess a

firearm in furtherance of a drug trafficking crime or a crime of

violence, in violation of 18 U.S.C. § 924(o); and (4) possession

of a firearm in furtherance of a drug trafficking crime or a

7
crime of violence, in violation of 18 U.S.C. § 924(c). 3 Edwards

was additionally charged with being a felon in possession of

ammunition, in violation of 18 U.S.C. § 922(g)(1).

Before trial, Appellants moved for discovery into whether

race played a role in ATF’s decision to target Bowden and

Appellants for a stash house sting operation. The district

court denied the motion, though it ordered the government to

produce to Appellants one page out of ATF’s training materials

for conducting such operations. Appellants also moved to

dismiss the indictment on the ground that the government had

engaged in outrageous conduct that violated their due process

rights. The district court denied this motion as well.

After a seven-day trial, the jury returned a special

verdict finding Appellants guilty on all counts. The district

court sentenced Hare to 132 months of imprisonment, Williams to

150 months, and Edwards to 240 months. Appellants filed this

appeal challenging, among other things, the district court’s

denial of their motion for discovery and motion to dismiss, as

well as their convictions for the firearm offenses in Counts 3

and 4.

3
Bowden entered a plea agreement and ultimately received a
ten-year sentence.

8
 II.

A.

Appellants first contend that the district court erred in

denying their motion for discovery into whether ATF targeted

Bowden and Appellants for a stash house sting operation because

they are black, i.e., whether ATF engaged in selective

enforcement. In support of their motion, Appellants presented

evidence indicating that there had been a total of 5 stash house

sting cases prosecuted in the District of Maryland since 2011

(including this case) and that all 20 defendants in those cases

were black. On appeal, Appellants have revised those figures to

8 prosecutions involving 32 defendants, all of whom are black.

Also on appeal, Appellants identify a “known white ‘crew[]’

involved in robberies and drug distribution” in the District of

Maryland whose members were arrested and prosecuted, but were

“not the subject of a ‘stash house sting’ or other ATF

investigation.” Appellants Br. 36 (citing United States v.

Paschall, Nos. 13-359, 13-360, 13-361 (D. Md. July 16, 2013)). 4

Appellants argue that this evidence entitles them to discovery

in support of their selective enforcement claim. Broadly

speaking, Appellants seek “discovery concerning the methodology

employed by ATF in these cases, their selection criteria for

4
The government does not dispute Appellants’ statistics or
their characterization of the Paschall case.

9
targets, their use of informants, and any efforts to ensure law

enforcement did not ensnare the otherwise innocent and those

lacking predisposition.” Appellants Br. 22.

The district court denied Appellants’ motion, finding that

their evidence did not satisfy the standard for discovery set

forth in United States v. Armstrong, 517 U.S. 456 (1996).

Nevertheless, the court ordered the government to investigate

whether ATF had a manual or “playbook” related to stash house

sting operations and to provide any such manual to the court for

in camera review. The government produced an ATF operations

manual that was created in July 2013, after the events in this

case. The government indicated, however, that ATF agents in the

District of Maryland had been trained in conducting stash house

stings prior to their investigation of Bowden and Appellants.

The court ordered the government to provide any such training

materials to the court for in camera review. After reviewing

the government’s submission, the court ordered the government to

produce to Appellants one page, which set forth the “procedures

and guidelines for selecting a target.” Suppl. J.A. 5. The

court noted that while “this page is not in any way suggestive

of discriminatory animus, disclosure is warranted insofar as

[Appellants] would otherwise have no way of learning the

government’s criteria for selecting targeted individuals.” Id.

at 5-6. On appeal, Appellants contend that they should not be

10
held to the Armstrong standard as it applies to claims of

selective prosecution rather than selective enforcement, and

that their evidentiary showing entitles them to discovery beyond

what was ordered by the district court. Our review is de novo.

See United States v. Venable, 666 F.3d 893, 900 (4th Cir. 2012).

B.

In Armstrong, the Supreme Court addressed the standards of

proof applicable to a claim of selective prosecution, i.e., a

claim that the “prosecutor has brought the charge for reasons

forbidden by the Constitution,” such as race. 517 U.S. at 463.

The Court explained that the Attorney General and United States

Attorneys, having been designated by the President to help

execute the nation’s laws, enjoy “broad discretion” and a

“presumption of regularity” in their prosecutorial decisions.

Id. at 464 (quotations omitted). “In order to dispel the

presumption that a prosecutor has not violated equal protection,

a criminal defendant must present clear evidence to the

contrary” by demonstrating that a prosecutorial policy “had a

discriminatory effect and . . . was motivated by a

discriminatory purpose.” Id. at 465 (quotation omitted). The

defendant must “establish both (1) that similarly situated

individuals of a different race were not prosecuted, and (2)

that the decision to prosecute was invidious or in bad faith.”

11
United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996)

(quotations omitted).

The standard for obtaining discovery in support of a

selective prosecution claim is only “slightly lower” than for

proving the claim itself. Venable, 666 F.3d at 900. Instead of

presenting “clear evidence,” the “defendant must produce ‘some

evidence’ making a ‘credible showing’ of both discriminatory

effect and discriminatory intent.” Olvis, 97 F.3d at 743.

Because discovery imposes “many of the costs present when the

Government must respond to a prima facie case of selective

prosecution,” the standard for obtaining discovery is

“correspondingly rigorous” and “should itself be a significant

barrier to the litigation of insubstantial claims.” Armstrong,

517 U.S. at 464, 468.

This Court has adopted Armstrong’s standard for proving

selective prosecution as the standard for proving selective

enforcement. See United States v. Bullock, 94 F.3d 896, 899

(4th Cir. 1996). We have not, however, specifically addressed

whether Armstrong’s standard for discovery applies in the

selective enforcement context. Nevertheless, this standard

provides the starting point for our analysis of Appellants’

discovery motion.

Appellants’ statistical evidence, indicating that all 32

defendants prosecuted in stash house sting cases in the District

12
of Maryland have been black, does not meet Armstrong’s discovery

standard. We have explained that “absent an appropriate basis

for comparison, statistical evidence [of racial disparity] alone

cannot establish any element of a discrimination claim.” Olvis,

97 F.3d at 745. In Olvis, the defendants presented evidence

showing that in the Norfolk–Newport News area of Virginia, “more

than 90% of those indicted . . . since 1992 for crack cocaine

trafficking are black.” 97 F.3d at 741, 745. We found this

insufficient to demonstrate a discriminatory effect, as the data

provided “no statistical evidence on the number of blacks who

were actually committing crack cocaine offenses or whether a

greater percentage of whites could have been prosecuted for such

crimes.” Id. at 745. “Without an appropriate basis for

comparison, raw data about the percentage of black crack cocaine

defendants prove[d] nothing.” Id. Similarly, in Venable, we

found that statistics showing that blacks made up approximately

87% of those charged with certain firearm offenses in the

Eastern District of Virginia did not constitute evidence of

discriminatory intent, as the data provided “no statistical

evidence about the number of blacks who were actually committing

firearms offenses or whether a greater percentage of whites

could have been prosecuted for such crimes.” 666 F.3d 903.

Appellants’ statistical evidence similarly provides no

appropriate basis for comparison, as it contains no data on

13
similarly situated white individuals who could have been

targeted for stash house sting investigations but were not.

Instead, Appellants point to one white crew “involved in

robberies and drug distribution” in the District of Maryland.

Appellants Br. 36. It is far from clear, however, that this

crew is “similarly situated,” in the sense that “their

circumstances present no distinguishable legitimate

[enforcement] factors that might justify making different

[enforcement] decisions with respect to them.” See Venable, 666

F.3d at 900-01. While a Department of Justice press release

indicates that the Paschall defendants were involved in drug

trafficking and armed home invasions, it is not known, for

example, whether the crew members’ criminal histories indicated

that they would be receptive to a stash house robbery scenario,

or whether ATF had the means of infiltrating this crew

undercover. 5 Furthermore, this isolated example is more

“anecdotal evidence,” Armstrong, 517 U.S. at 470, than it is

5
See U.S. Atty’s Office, Dist. of Md., Dept. of Justice, 16
Defendants Charged In A Commercial Burglary Ring and Drug
Conspiracy (July 18, 2013), https://www.justice.gov/usao-
md/pr/16-defendants-charged-commercial-burglary-ringand-drug-
conspiracy (describing defendants as committing “commercial
burglaries, home invasion armed robberies, arsons and other
crimes at convenience stores, gas stations, financial
institutions, restaurants[,] homes and liquor stores,” in which
“[s]afes and ATMs are primarily targeted and taken,” and
“[l]ottery tickets and cigarettes are also taken along with
other valuables”) (saved as ECF opinion attachment).

14
“statistical evidence” demonstrating that “a greater percentage

of whites could have been [investigated].” See Venable, 666

F.3d at 903.

Even if we assumed that Appellants’ statistical evidence

“had a basis for comparison that showed discriminatory effect,

it would not necessarily prove discriminatory intent.” Olvis,

97 F.3d at 746. As a general matter, “in cases involving

discretionary judgments ‘essential to the criminal justice

process,’ statistical evidence of racial disparity is

insufficient to infer . . . a discriminatory purpose.” Id.

(quoting McCleskey v. Kemp, 481 U.S. 279, 297 (1987)).

Appellants’ statistical evidence, with its relatively small

sample size and weak basis for comparison, is clearly

insufficient. See id. at 745. Because Appellants offer no

other evidence that ATF’s actions were “invidious or in bad

faith,” they have not shown discriminatory intent. 6 Thus,

6Appellants allege that ATF was “willfully blind” to the
racially disparate impact of its stash house sting operations;
however, willful blindness does not evince discriminatory
intent, as “discriminatory intent implies that the government
‘selected or reaffirmed a particular course of action at least
in part because of, not merely in spite of, its adverse effects
upon an identifiable group.’” Venable, 666 F.3d at 903 (quoting
Wayte v. United States, 470 U.S. 598, 610 (1985)).
Appellants also suggest that ATF deviated from its protocol
by failing to investigate Appellants’ criminal backgrounds to
ensure that they were violent offenders, and that such deviation
is “evidence that improper purposes are playing a role.” Vill.
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
(Continued)
15
Appellants have not put forth “some evidence” making a “credible

showing” of the elements of a discrimination claim.

Appellants argue, however, that their selective enforcement

claim should not be held to the discovery standard articulated

in Armstrong for claims of selective prosecution. Appellants

highlight important differences in proving the two types of

claims. First, Appellants note that it is considerably harder

to demonstrate that a law enforcement action has a

discriminatory effect, as there are less likely to be records of

similarly situated individuals who were never investigated or

arrested. As the Seventh Circuit has explained, in a case

involving racial profiling in traffic stops:

In a meritorious selective prosecution claim, a
criminal defendant would be able to name others
arrested for the same offense who were not prosecuted
by the arresting law enforcement agency; conversely,
plaintiffs who allege that they were stopped due to
racial profiling would not, barring some type of test
operation, be able to provide the names of other
similarly situated motorists who were not stopped.

Chavez v. Illinois State Police, 251 F.3d 612, 640 (7th Cir.

2001). In the stash house sting context, a defendant would face

267 (1977). However, ATF protocol requires investigation of the
target, in this case Bowden. The record indicates that ATF
investigated Bowden and that he satisfied ATF’s criteria for a
stash house sting target. Finally, that ATF presented
Appellants with a lucrative opportunity involving more than 10
to 15 kilograms of cocaine does not suggest a discriminatory
motive.

16
considerable difficulty obtaining credible evidence of similarly

situated individuals who were not investigated by ATF. Even if

a defendant could, for example, use state or federal

prosecutions to identify white individuals involved in drug

offenses or armed robberies, without discovery into what ATF

knew about these individuals, the defendant would be hard

pressed to demonstrate that there were no distinguishing factors

that would justify different enforcement treatment.

Second, Appellants note that Armstrong was primarily

concerned with respecting the province of federal prosecutors,

who are “designated by statute as the President’s delegates to

help him” execute the nation’s laws, and thus enjoy a

“presum[ption] that they have properly discharged their official

duties.” Armstrong, 517 U.S. at 464. Law enforcement officers,

however, are not accorded equal deference. Again, the Seventh

Circuit offers cogent analysis:

Agents of the ATF and FBI are not protected by a
powerful privilege or covered by a presumption of
constitutional behavior. Unlike prosecutors, agents
regularly testify in criminal cases, and their
credibility may be relentlessly attacked by defense
counsel. They also may have to testify in pretrial
proceedings, such as hearings on motions to suppress
evidence, and again their honesty is open to
challenge. Statements that agents make in affidavits
for search or arrest warrants may be contested, and
the court may need their testimony to decide whether
if shorn of untruthful statements the affidavits would
have established probable cause. . . . Before holding
hearings (or civil trials) district judges regularly,
and properly, allow discovery into nonprivileged
aspects of what agents have said or done. In sum, the
17
 sort of considerations that led to the outcome in
Armstrong do not apply to a contention that agents of
the FBI or ATF engaged in racial discrimination when
selecting targets for sting operations, or when
deciding which suspects to refer for prosecution.

United States v. Davis, 793 F.3d 712, 720-21 (7th Cir. 2015) (en

banc) (finding evidence that the “overwhelming majority” of

defendants prosecuted in stash house sting cases in the Northern

District of Illinois were black or Hispanic sufficient to

warrant discovery on an incremental basis).

Appellants’ arguments are well taken. However, even if we

assume that their evidentiary showing is sufficient to warrant

discovery into selective enforcement, Appellants have not shown

that they are entitled to discovery beyond what the government

has already produced. The government has already provided

Appellants with ATF’s criteria for choosing a stash house sting

target, and the district court reviewed an even broader set of

ATF documents for information relevant to Appellants’ selective

enforcement claim. ATF’s selection criteria do not suggest any

discriminatory motive. Instead, they indicate that ATF followed

its protocol in selecting Bowden as a target, and Bowden, not

ATF, recruited Appellants. We conclude that Appellants have

received all the discovery to which they are entitled, and

affirm the district court’s denial of their motion for

discovery.

18
 III.

Appellants next challenge the district court's denial of

their motion to dismiss the indictment on due process grounds.

Because the relevant facts are not in dispute, our review is de

novo. See United States v. Hatcher, 560 F.3d 222, 224 (4th Cir.

2009).

Appellants claim that ATF’s conduct in this case was so

egregious as to violate their Fifth Amendment due process rights

and thus preclude prosecution. They invoke the theory, first

articulated in United States v. Russell, 411 U.S. 423 (1973),

that there may be “a situation in which the conduct of law

enforcement agents is so outrageous that due process principles

would absolutely bar the government from invoking judicial

processes to obtain a conviction.” Id. at 431-32. We have

previously observed that the “outrageous conduct” doctrine is

“highly circumscribed,” United States v. Hasan, 718 F.3d 338,

343 (4th Cir. 2013), and applies “only in rare cases.” United

States v. Jones, 18 F.3d 1145, 1154 (4th Cir. 1994). The

government’s actions “must be ‘shocking’ or ‘offensive to

traditional notions of fundamental fairness.’” Hasan, 718 F.3d

at 343 (quoting United States v. Osborne, 935 F.2d 32, 37 (4th

Cir. 1991)). See also Osborne, 935 F.2d at 36 (noting the “high

shock threshold” of appellate courts faced with “extremely

unsavory government conduct”). “As a practical matter, only

19
those claims alleging violation of particular constitutional

guarantees are likely to succeed.” United States v. Jones, 13

F.3d 100, 104 (4th Cir. 1993).

Appellants’ theory as to a due process violation is less

than clear. However, their primary arguments appear to be that

ATF behaved outrageously by failing to investigate whether

Appellants were predisposed to committing stash house robberies

or similar crimes, and by providing an inducement so lucrative

as to be unreasonable. 7 Appellants also appear to object

generally to ATF’s use of the stash house robbery scenario as an

investigative tool. We address these arguments in turn.

The government does not deny that ATF had no knowledge of

Appellants before Bowden introduced them to Agent Rogers, and

7Government inducement and a defendant’s lack of
predisposition are the elements of an entrapment defense. See
United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998).
Appellants acknowledge that the district court allowed them to
argue entrapment and gave the entrapment jury instruction they
requested. On appeal, Appellants assert that they are not
raising an entrapment claim. Thus, we evaluate their arguments
under the outrageous government conduct standard.
Nevertheless, we note that we would reject an entrapment
claim, were Appellants raising one. When the issue of
entrapment is submitted to the jury, a guilty verdict
“comprehends a finding of no entrapment” and “an appellate court
may overturn this determination only if no rational trier of
fact could have found predisposition beyond a reasonable doubt,
viewing the evidence in the light most favorable to the
prosecution.” United States v. Jones, 976 F.2d 176, 180 (4th
Cir. 1992). Under the predisposition principles explained
herein, a reasonable juror could have found predisposition on
the part of Appellants.

20
that ATF subsequently undertook no investigation to determine

whether they had violent criminal histories and were therefore

appropriate targets for a stash house sting. Indeed, it appears

that Hare and Williams have only minimal criminal records and no

record of violent crimes. See J.A. 176, 180. While this is

troubling, particularly since Appellants now each face more than

10 years of imprisonment, it does not rise to the level of

outrageous conduct.

Appellants were not targeted by ATF but recruited by

Bowden, whom ATF targeted based on information that he was an

active, armed drug trafficker. “[I]t would undermine law

enforcement’s ability to investigate and apprehend criminals if

its otherwise acceptable conduct became outrageous merely

because an individual with no known criminal history whom the

government did not suspect of criminal activity joined the

criminal enterprise at the last minute at the behest of

codefendants.” United States v. Black, 733 F.3d 294, 308 n.11

(9th Cir. 2013). Furthermore, it was not outrageous for the

government to infer that Bowden would recruit people who were

willing and had the requisite experience to rob an armed stash

house. This inference was bolstered by Appellants’ ready

response to Agent Rogers’s proposal. They assented to the

proposal at their first meeting with Rogers, planned how to

execute the robbery, and at no point attempted to withdraw.

21
“[T]he ready commission of the criminal act amply demonstrates

the defendant’s predisposition.” Jacobson v. United States, 503

U.S. 540, 550 (1992); see also Osborne, 935 F.2d at 37-38

(“[T]he fact that a defendant has not previously committed any

related crime is not proof of lack of predisposition. Rather,

predisposition is found from the defendant’s ready response to

the inducement offered.”).

We also do not find outrageous the size of the inducement,

15 to 20 kilograms of cocaine in total. 8 This amount is

considerably less than the quantity of cocaine at issue in other

stash house sting cases. See, e.g., Black, 733 F.3d at 299

(finding no outrageous government conduct where sting involved

28 to 46 total kilograms of cocaine); United States v. Mayfield,

771 F.3d 417, 422, 441 (7th Cir. 2014) (en banc) (describing

sting that involved 26 to 38 total kilograms of cocaine as a

“typical stash-house robbery” that would not, by itself,

“qualify as an illegitimate inducement”). Appellants assert

that a typical stash house in Maryland contains less than 15 to

20 kilograms of cocaine. However, even assuming that 15 to 20

kilograms is a large quantity by Maryland standards, that would

8 “Inducement” for purposes of entrapment means
“solicitation plus some overreaching or improper conduct on the
part of the government.” United States v. Hsu, 364 F.3d 192,
200 (4th Cir. 2004). As entrapment is not before us, we express
no view on whether the amount of cocaine at issue qualifies as
an “inducement” in the entrapment sense of the word.

22
not render ATF’s conduct outrageous, particularly since Agent

Rogers concocted various obstacles to executing the robbery,

including that the stash house had three armed guards and the

robbery would take place during the day. Cf. United States v.

Kindle, 698 F.3d 401, 414-15 (7th Cir. 2012) (Posner, J.,

dissenting) (explaining that stash house stings are “a

disreputable tactic” in part because “the police can convince a

suspect that the stash house robbery would be a shockingly

simple and easy crime to commit”), vacated en banc sub nom.

United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014).

Finally, we do not find it outrageous for ATF to utilize

stash house stings as an investigative tool. We have noted that

“[o]utrageous is not a label properly applied to conduct because

it is a sting or reverse sting operation involving contraband.”

United States v. Goodwin, 854 F.2d 33, 37 (4th Cir. 1988).

Concededly, a stash house sting entails considerable government

involvement—including direct solicitation of the target and

total control over the parameters of the robbery, particularly

the quantity of cocaine held in the fictitious stash house—and

appears highly susceptible to abuse. We may further question

the propriety of using such a tool to prosecute individuals with

no violent criminal histories and who demonstrated an

23
inclination to pursue the less violent Plan B. 9 However, the

standard for outrageous government conduct is high, and we

cannot say that ATF’s conduct in this case was “so outrageous as

to shock the conscience of the court.” Osborne, 935 F.2d at 36.

We know of no court of appeals to hold otherwise, while several

have found no due process violation even when ATF’s conduct was

more objectionable than it was here. See Black, 733 F.3d at 299

(finding no outrageous conduct where ATF “trolled” for targets

by paying a confidential informant to “try and find some people”

willing to commit a home invasion, which the informant did by

“going to the bars” in a “bad part of town” to try and “meet

people”); see also United States v. Rodriguez, 603 F. App’x 306

(5th Cir. 2015); United States v. Sanchez, 138 F.3d 1410 (11th

Cir. 1998). Appellants’ arguments, whether considered alone or

collectively, do not establish outrageous government conduct.

We affirm the district court’s denial of Appellants’ motion to

dismiss the indictment.

IV.

Appellants next challenge their convictions for possessing

a firearm in furtherance of a drug trafficking crime or a crime

9 Indeed, in Count 2 the jury found Appellants guilty of
conspiring to traffic “500 grams but less than 5 kilograms” of
cocaine, J.A. 977-78, consistent with the plan to stage a
robbery of Agent Rogers’s 5 kilogram shipment.

24
of violence, in violation of 18 U.S.C. § 924(c) (Count 4).

Appellants contend that the district court’s instructions on

aiding and abetting liability were erroneous under Rosemond v.

United States, 134 S. Ct. 1240 (2014). Appellants also contend

that under Johnson v. United States, 135 S. Ct. 2551 (2015), a

Hobbs Act robbery does not constitute a crime of violence and

therefore cannot serve as the predicate crime for a conviction

under § 924(c), or the related conspiracy charge in Count 3.

These arguments are unavailing.

A.

In Rosemond, the Supreme Court held that to establish a

violation of § 924(c) based on the theory that the defendant

aided and abetted the offense, the government must prove “that

the defendant actively participated in the underlying drug

trafficking or violent crime with advance knowledge that a

confederate would use or carry a gun during the crime’s

commission.” 134 S. Ct. at 1243. This is because “[w]hen an

accomplice knows beforehand of a confederate’s design to carry a

gun, he can attempt to alter that plan or . . . withdraw from

the enterprise.” Id. at 1249. However, “when an accomplice

knows nothing of a gun until it appears at the scene, he may

already have completed his acts of assistance . . . [or] may at

that late point have no realistic opportunity to quit the

25
crime.” Id. In such case, “the defendant has not shown the

requisite intent to assist a crime involving a gun.” Id.

Appellants contend that the district court’s aiding and

abetting instructions were erroneous because they did not

require Appellants to know in advance that guns would be

involved in the robbery. Because Appellants did not object to

the instructions below, plain error review applies. United

States v. Robinson, 627 F.3d 941, 953 (4th Cir. 2010).

Appellants must show that “an error occurred, that the error was

plain, and that the error affected [their] substantial rights,”

meaning that it “actually affected the outcome of the

proceedings.” United States v. Hastings, 134 F.3d 235, 239-40

(4th Cir. 1998). Even then, the Court “should not exercise [its

discretion to correct the error] unless the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 239 (quotation omitted).

Assuming that the district court’s instructions were

erroneous and the error was plain, we find that the error did

not affect Appellants’ substantial rights. Hare admitted to

possessing the Beretta firearm, and the verdicts against

Williams and Edwards may be sustained under the Pinkerton theory

of liability. “The Pinkerton doctrine makes a person liable for

substantive offenses committed by a co-conspirator when their

commission is reasonably foreseeable and in furtherance of the

26
conspiracy.” United States v. Ashley, 606 F.3d 135, 142-43 (4th

Cir. 2010). The jury was properly instructed on Pinkerton

liability and the evidence amply demonstrates that it was

reasonably foreseeable to Williams and Edwards that a co-

conspirator would possess a firearm. At each meeting, Williams

and Edwards discussed the firearms the crew would bring and the

possibility of shooting the stash house guards. At no point was

it suggested that the crew would proceed without firearms, even

in the context of Plan B. Thus, any error in the aiding and

abetting instruction does not satisfy the plain error standard.

See Robinson, 627 F.3d at 954 (explaining that under the plain

error prejudice requirement, “where a defendant was indicted

under multiple [theories] of an offense but subjected to

erroneous jury instructions on one of those [theories,]” the

defendant “must demonstrate that the erroneous instruction given

resulted in his conviction, not merely that it was impossible to

tell under which [theory] the jury convicted”). See also United

States v. Saunders, 605 F. App’x 285, 288-89 (5th Cir. 2015)

(finding that Rosemond error in aiding and abetting instruction

did not affect defendant’s substantial rights “because the jury

was given a correct Pinkerton instruction” and it was

“reasonably foreseeable that [defendant’s co-conspirator] would

carry a gun to a bank robbery”); United States v. Young, 561 F.

App’x 85, 92 (2d Cir. 2014) (explaining that “even if there had

27
been error regarding aiding and abetting” in light of Rosemond,

“it was harmless because ample evidence supported [defendant’s]

liability under Pinkerton”).

B.

Appellants also challenge their firearm convictions on the

ground that, after the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015), a Hobbs Act robbery no

longer qualifies as a crime of violence. Thus, Appellants

claim, their convictions in Count 1 for committing a Hobbs Act

robbery cannot support their convictions in Count 4 for

possessing a firearm in furtherance of a drug trafficking crime

or a crime of violence, or the related conspiracy offense in

Count 3.

We need not reach the merits of this argument. 10 Section

924(c) prohibits the possession of a firearm in furtherance of a

10In Johnson, the Supreme Court held that the definition of
“violent felony” found in the residual clause of the Armed
Career Criminal Act is unconstitutionally vague. 135 S. Ct. at
2557. That clause defines a “violent felony” as any felony that
“involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Section 924(c) similarly contains a residual clause that defines
a “crime of violence” as any felony that “by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(B). Appellants
argue that by extension of the logic in Johnson, the residual
clause in § 924(c) is also unconstitutionally vague. Appellants
further argue that a Hobbs Act robbery does not otherwise
(Continued)
28
crime of violence or a drug trafficking crime. As the district

court explained to the jury, Appellants could be found liable if

they possessed a gun either in furtherance of the crime of

violence charged in Count 1 or in furtherance of the drug

trafficking crime charged in Count 2. The special verdict form

clearly shows that the jury found Appellants guilty of

possessing a firearm in furtherance of both crimes. See J.A.

978-81. Thus, even assuming that a Hobbs Act robbery is not a

crime of violence, Appellants’ verdicts may be sustained because

the jury found Appellants guilty of possessing, and conspiring

to possess, a firearm in furtherance of the drug trafficking

crime of which they were convicted in Count 2. See United

States v. Najjar, 300 F.3d 466, 480 n.3 (4th Cir. 2002)

(explaining that while “[a] general verdict . . . should be set

aside in cases where the verdict is supportable on one ground,

but not another, and it is impossible to tell which ground the

jury selected[,] [s]pecial verdicts obviate this problem by

allowing a court to determine upon what factual and legal basis

the jury decided a given question” (quotation omitted)).

Accordingly, we uphold Appellants’ convictions.

qualify as a crime of violence, and thus cannot be the basis for
a conviction under § 924(c).

29
 V.

Appellants raise various other challenges to their

conviction and sentences. We have reviewed Appellants’

arguments and find them to be without merit. Thus, we affirm

the district court. 11

AFFIRMED

11 Because Appellant Edwards is represented by counsel, we
deny his motions for leave to file pro se supplemental briefs.
See United States v. Penniegraft, 641 F.3d 566, 569 n.1 (4th
Cir. 2011).

30
SHEDD, Circuit Judge, concurring:

I agree completely with the legal analysis of the majority.

I write separately to note that, unlike the majority, I am not

troubled by the investigation and prosecution of these

defendants. The evidence presented in this case shows that these

defendants were willing to undertake criminal acts—including

violent acts—in connection with the armed robbery of illegal

drugs. Law enforcement did not independently recruit these

defendants; rather, they were part of a “crew” who were willing

to be involved in the armed robbery at the behest of their

leader, Bowden, who enlisted their involvement. Moreover, the

defendants had the opportunity to present their theory of

entrapment to the jury but, not surprisingly under the facts of

this case, the jury believed these defendants were predisposed

to be involved in the charged offenses.

In short, as the majority correctly holds, the Government

conducted itself lawfully, and these defendants were properly

convicted and sentenced. There is nothing troubling in that.

31