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Table of Contents
Background.....................................................................199
The Charged Offenses....................................................199
Facts of the Offenses.....................................................199
Defense Evidence........................................................204
Verdicts and Sentencing ..................................................204
Discussion......................................................................204
I. Entrapment.............................................................204
(A) Elements of Entrapment..............................................204
(1) Design ..........................................................206
(2) Time of Predisposition.............................................208
(3) Type of Evidence Relevant to Predisposition .........................208
(B) Entrapment as a Matter of Law........................................209
(1) Cromitie.........................................................210
(a) Inducement...................................................210
(b) Predisposition ................................................212
(2) David Williams, Onta Williams, and Payen ...........................215
(a) Inducement...................................................215
(b) Predisposition ................................................215
(C) Jury Charge on Entrapment...........................................216
II. Outrageous Government Conduct...........................................217
(A) Government’s Role in Planning the Crimes..............................219
(B) Exploiting Religious Views............................................219
(C) Exploiting Professed Love.............................................220
(D) Monetary and Other Benefits..........................................220
(E) Aggregation of Persuasion Techniques..................................221
III. Prosecution’s Knowing Use of Perjured Testimony...........................221
(A) False Statements Unrelated to the $250,000 Offer........................222
(B) False Statements Concerning the $250,000 ..............................223
(1) Falsity of the $250,000 Testimony...................................223
(2) The Prosecution’s Knowledge of the Falsity..........................223
(3) The Prosecution’s Imputed Knowledge ..............................224
(4) Likelihood of Affecting the Jury....................................224
IV. Other Claims............................................................225
(A) Admission of Video Evidence ..........................................225
(B) Vouching for Witness’s Credibility......................................225
(C) Jury’s Exposure to Extra-Record Evidence .............................225
(D) Sentencing..........................................................226
Conclusion......................................................................227
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 (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 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
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 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”
Hussain met with Cromitie three more times in the summer of 2Ó08. 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.” I'd. 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?”
In a conversation recorded on October 29, Cromitie said, “When the call come[s], I’m gonna go, ‘Allahu ákbar,’ 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 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 aré 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 .... 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, “ T 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.
Oh 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
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 1(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 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.”
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
Previously David Williams told Cromitie that he (David) wanted to be armed. On April 30, David Williams purchased a semiautomatic 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 there wás 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 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 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.
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 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, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); see Sherman v. United States, 356 U.S. 369, 376-78, 78 S.Ct. 819, 2 L.Ed.2d 848 (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, 108 S.Ct. 883 (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, 112 S.Ct. 1535, 118 L.Ed.2d 174 (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 (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.
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 eircumstances, 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.”
There is normally little controversy as to what constitutes prior “similar criminal conduct.” See Paul Marcus, The Entrapment Defense § 4.051 (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, 112 S.Ct. 1535. 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.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, 287 U.S. at 445, 53 S.Ct. 210, 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, 112 S.Ct. 1535; United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman, 356 U.S. at 372, 78 S.Ct. 819,
In the context of predisposition, the word “design” is ambiguous.
*207 “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 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 .... ” 727 F.3d at 228, [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 228-29 [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 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 éécond 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 be recruited by A1 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
We detail in Part 1(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); United States v. Rodriguez-Andrade, 62 F.3d 948, 954-955 & 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, 112 S.Ct. 1535. 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 Government’s investigation.” Jacobson, 503 U.S. at 549 n. 2, 112 S.Ct. 1535 (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, 112 S.Ct. 1535, is admissible. Not as clearly admissible is evidence of what a defendant says or does after inducement. Although as a general matter “a defen