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Full Opinion
United States Court of Appeals
For the First Circuit
No. 03-1470
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT C. LUISI, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
John H. LaChance for appellant.
Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
April 10, 2007
LYNCH, Circuit Judge. Defendant Robert C. Luisi, Jr., an
admitted member of the "La Cosa Nostra" (LCN) crime family, appeals
his convictions on three cocaine-related charges. These
convictions stemmed from an FBI investigation that employed a paid
cooperating witness and LCN member, Ronald Previte.
At trial, Luisi testified and admitted his involvement in
the cocaine transactions. His defense was entrapment, on
intertwined theories. He claimed that Previte, acting for the
government along with undercover FBI agent Michael McGowan, had
improperly tried to induce him to commit drug crimes. He further
claimed that when he resisted, Previte persuaded Philadelphia LCN
boss Joseph Merlino to order Luisi to engage in the charged drug
transactions. Merlino was Luisi's superior in the LCN, and the
government was aware of the serious consequences Luisi would face
if he refused to follow Merlino's order.
The district court instructed the jury on the entrapment
defense. However, the court's supplemental instructions -- given
in response to a jury question -- foreclosed the jury from
considering Merlino's role in the asserted government entrapment of
Luisi. We conclude that those instructions were erroneous, and we
vacate the convictions and remand the case.
I.
In July 1999, a grand jury in the District of
Massachusetts indicted Luisi and three co-defendants on three
-2-
charges: one count of conspiracy to possess cocaine with intent to
distribute, see 21 U.S.C. §§ 841(a)(1), 846, and two counts of
possession of cocaine with intent to distribute, see id. § 841(a).
The conspiracy was alleged to have run from February 1999 through
June 28, 1999. The two possession counts stemmed from transactions
on April 30, 1999, and June 3, 1999.
Pursuant to plea agreements with the government, two of
Luisi's co-defendants pled guilty to the possession counts. The
indictment against the third was dismissed following that
defendant's death, leaving Luisi as the sole defendant at a trial
that commenced on September 9, 2002. We recount the key testimony.
In the late 1990s, the FBI conducted a major
investigation into the operations of the Philadelphia LCN.
Previte, a captain or "capo regime" in the LCN, assisted the FBI
investigation by working as a cooperating witness under a personal
services contract with the FBI. He was paid a substantial sum of
money in return.
The FBI came to learn that Luisi was working for the
Philadelphia LCN as a captain, and that he was supervising the
criminal activity that the organization undertook in Boston. Eager
to get evidence against Luisi, the FBI had Previte introduce Luisi
to McGowan, who posed as a source of illegal money-making
opportunities.
-3-
The introduction took place over January 11th and 12th,
1999. McGowan operated under the pseudonym "Michael O'Sullivan"
and purported to be in the import/export business. He told Luisi
he had previously worked with Capo Previte in Philadelphia, and
said he had now relocated to Boston. McGowan explained to Luisi
that as part of his business he was sometimes presented with
"opportunities" and that sometimes he needed help taking advantage
of these "deals." Luisi agreed that he would look at future deals
with McGowan. Unbeknownst to Luisi, this conversation was being
recorded by the FBI -- as were the vast majority of the future
conversations Luisi would have with McGowan.
The first "opportunity" occurred on February 10, 1999,
when McGowan presented Luisi with several "stolen" furs. Luisi was
not sure if he would be able to sell them, but he stated he would
look into it. He also inquired whether McGowan had other items;
when McGowan mentioned the possibility of obtaining jewelry, Luisi
expressed more interest in that, and particularly in diamonds.
There was no mention of any drugs at this point.
Several days later, Luisi and Previte spoke to each other
at a party in Philadelphia. Merlino was also present at the party.
Luisi testified that Previte proposed a "swap" of cocaine for
diamonds, and that Luisi's response was that he would "try" to get
the deal done. He testified that he gave this response because "at
the party [Merlino] . . . made it very clear to me that he wanted
-4-
these drugs," although Luisi later clarified that he did not at
that time understand Merlino to be giving an "order" to do the
deal, but merely "permission." That would change. In any event,
Luisi testified that at or shortly after the party he chose not to
do the deal.
On March 8, 1999, McGowan again met with Luisi, along
with two of Luisi's associates.1 McGowan referred to Previte's
proposed swap and stated that he (McGowan) knew a guy with
diamonds, and that the guy was looking to exchange them for "three
bricks."2 Luisi's immediate response was: "I want to get them, I
want to bring them to [a jeweler friend of mine], if he likes it,
boom. We'll do the deal and I'll do it that way, whatever
[Previte] wants." McGowan interpreted this to mean that Luisi
wanted to see the diamonds, and that he would be willing to
exchange cocaine for them.
Several minutes later, however, Luisi took McGowan aside
privately. This part of the conversation was not recorded.
According to McGowan, Luisi told him that because Previte had
referred McGowan to him, Luisi would make "every effort" to get the
1
We use the term "associate" in its ordinary colloquial
meaning. Luisi testified that the word "associate" conveys a
particular status within the LCN; we do not use the term in that
sense.
2
McGowan testified that "brick" was code for "cocaine."
Luisi disputed that, testifying that his initial understanding was
that a "brick" referred to heroin, and that it took him a few
minutes to realize that McGowan was referring to cocaine.
-5-
cocaine, but it would be difficult and it would take time. Luisi
testified that he did not actually agree to do a drugs-for-diamonds
swap.
Also during the March 8th conversation, McGowan asked
Luisi what items, other than the diamonds, he would be interested
in. Luisi responded that he would be interested in jewelry,
watches, and cigarettes, and some of his associates mentioned film
and razor blades.
McGowan's next meeting with Luisi and his associates came
on March 11, 1999. McGowan had some "stolen" Polaroid film, and
the participants discussed how it was to be sold. Luisi reported
on his only partially successful attempts to sell fur coats, and
the participants also discussed diamonds and jewelry. Later during
the meeting, McGowan mentioned that Previte was coming up to Boston
in a few days, and Luisi agreed to meet with both Previte and
McGowan then. Luisi and his associates left with the film.
Previte came to Boston, and on March 16, 1999, he met
with McGowan, Luisi, and some of Luisi's associates. The
participants had a cryptic conversation during which, according to
McGowan, Luisi confirmed that he would get the cocaine-for-diamonds
deal done. The following day, McGowan talked to Luisi over the
phone, and again inquired into the status of the cocaine deal with
Previte. Luisi replied that he would work on it, but indicated
that the deal would not happen immediately.
-6-
During this time, Luisi had also been trying to sell the
film that McGowan had given him on March 11th. He was unable to do
so at a price that McGowan was willing to accept, and so on March
19th Luisi returned the film. After Luisi again expressed his
preference for jewelry, and after McGowan again reaffirmed his
ability to get jewelry, the conversation turned back to the
proposed diamonds-for-cocaine deal. Luisi made comments that, if
taken at face value, expressed a reluctance to go ahead with the
deal and indicated that Luisi had "nothing to do with" the cocaine
business. Luisi also explained to McGowan that "in the last . . .
three years I lost over a dozen and a half guys to that. . . . And
I have to make a stern, a firm stand here. . . . I don't wanna have
nothing to do with it."
Luisi then said that he would send a guy named Danny
White, not affiliated with Luisi, to do the deal. Luisi told
McGowan that once White made contact with McGowan, McGowan would
have exactly seven days to complete the transaction. Luisi and
McGowan also discussed cash terms for the deal (even though the
deal had originally been conceived of as a barter for diamonds).
Luisi testified that Danny White actually is a fictitious
person whom Luisi made up in order to pretend that he was
cooperating with McGowan.3 McGowan testified that he never met
3
On the tapes, it is actually McGowan who first refers to
"Danny," and he states that he had heard about White from Previte.
However, a jury could conclude that Previte had first heard about
-7-
White at any point, that he never had any conversation with him,
and that he did not know whether White was a fictitious person or
not.
Luisi and McGowan had no contact with each other for the
next three weeks.4 On April 19, 1999, McGowan initiated a phone
conversation with Luisi. McGowan turned the discussion to dealings
with Previte, and Luisi responded that "[e]verything's gonna be
okay soon." McGowan understood this to be a reference to the
cocaine transaction.
McGowan initiated another phone conversation with Luisi
on April 23, 1999. McGowan told him that Previte would be coming
to Boston on April 28th, and he asked Luisi to be available then.
Luisi said he would probably be available, and he also said "I'm ah
gonna be calling you ah with my other friend any day." McGowan
interpreted the "other friend" to be a reference to Danny White.
In the same phone conversation, McGowan mentioned that he might
soon have more stolen property coming in.
On April 27, 1999, one day before Previte's planned trip
to Boston, Previte had a conversation with Merlino, his superior in
the LCN. Previte was wearing a wire, and the conversation was
recorded. As revealed by the tape, Previte complained to Merlino
Danny White from Luisi.
4
McGowan testified that this was due to the fact that Luisi
was out of town for one week, and that McGowan had informed Luisi
he would be out of town for the two weeks after that.
-8-
that Luisi had not yet done the cocaine transaction, despite
Luisi's representations. Previte explained to Merlino that he had
"big money sittin[g] on the line," and that Merlino would also make
money from the transaction. He directly asked Merlino if there was
"any way you could just tell [Luisi] to do what he gotta do."
Merlino agreed to do so. Previte and Merlino then agreed that when
Previte went to Boston the next day, Previte would put Luisi on the
phone with Merlino, at which point Merlino would tell Luisi to do
the cocaine deal. As Merlino put it on the tape: "I'll say [to
Luisi:] whatever [Previte] says to do[,] just do it."
Previte was still cooperating with the FBI at the time he
had the conversation with Merlino, and a jury could conclude that
the FBI had in fact directed Previte's request of Merlino. Previte
did not testify, nor did any of the Philadelphia FBI agents who had
worked with him. But McGowan was asked if the FBI had arranged the
meeting between Previte and Merlino, and his response was that
while he did not know, he "assume[d] so because Previte was
cooperating."
Previte flew to Boston on the morning of April 28th, the
day after his conversation with Merlino. He went to McGowan's
office, and McGowan arranged for Previte to make a three-way call
with LCN boss Merlino and Capo Luisi, Merlino's underling. The
call was recorded in its entirety. It began with Previte calling
Luisi. Once Luisi was on the line, Previte brought Merlino into
-9-
the conversation. After an exchange of preliminaries, Merlino
(somewhat cryptically) got down to business.5 Luisi testified that
he understood Merlino to be ordering him to get the cocaine deal
done, and that he agreed to do the deal as a result of this.
McGowan, who had been listening in to the conversation,
testified to having a similar understanding. As he put it,
"[a]fter this phone conversation, I expected to receive cocaine."
His hopes were soon realized.
Within an hour after Merlino spoke to Luisi, Luisi met
with Previte and McGowan to confirm details of the drug
transaction. Initially, Previte and Luisi had a private
conversation to work out certain points, and Previte explained that
McGowan wanted to do multiple cocaine deals. Luisi agreed, and the
5
As recorded, the relevant portions of the conversation were
as follows:
Merlino: Bob, can that guy, you know, do what
he's got to do over there for him?
Luisi: Oh, yeah.
Merlino: All right.
Luisi: Yeah, that's, that's gonna, ah, that's
gonna be.
Previte: Okay.
Merlino: All right.
Luisi: You know?
Merlino: You got it.
-10-
private conversation ended shortly thereafter. With Luisi looking
on, Previte then informed McGowan that the mysterious Danny White
would not be playing a role in the deal, and that his place would
be taken by Shawn Vetere, one of Luisi's associates. Vetere
promptly put McGowan in touch with Bobby Carrozza.6 McGowan worked
out more details with Carrozza. On April 30, 1999 -- two days
after the call with Merlino -- Carrozza sold two kilograms of
cocaine to McGowan. Carrozza told McGowan that the cocaine came
"right from [Luisi and Vetere]. I wouldn't be able to do it any
other way."
Two weeks later, McGowan gave Luisi a $1,000 "tribute"
payment for arranging the transaction. McGowan and Luisi also
engaged in preliminary discussions about a future cocaine deal, and
Luisi told McGowan to work the rest out with Carrozza. McGowan did
so.
The next cocaine delivery was not immediately
forthcoming, however. On May 24, 1999, McGowan complained to
Luisi, who told him to be patient. On June 1, 1999, Luisi proposed
certain changes to the impending cocaine transaction; McGowan
agreed to the revised cocaine deal the next day, and he paid Luisi
the $24,000 cash price. On June 3, 1999, Carrozza and Tommy Wilson
6
Carrozza's exact relationship to Luisi is somewhat unclear,
but there was testimony suggesting that Carrozza was in some way
affiliated with the LCN. There was also evidence that Carrozza
worked directly with Luisi and Vetere.
-11-
(another of Luisi's associates) came to McGowan's office to deliver
one kilogram of cocaine. McGowan later gave Luisi a $500 "tribute"
payment for arranging the deal.7
Luisi was the sole witness to testify for the defense.
He testified to several additional pertinent points. He admitted
that he had been a captain in the LCN since the fall of 1998, and
he agreed that the LCN was properly described as "the Mafia" and as
"the mob." As a captain, one of his jobs had been to make
"tribute" payments to Merlino, and these payments had come out of
Luisi's earnings from the criminal enterprises conducted by his
"crew" in Boston. Luisi explained that the LCN was extremely
hierarchical, and he stated that when the head of the LCN ordered
him to do the cocaine transaction, he felt that he had no
alternative other than to fulfill the order. He was also asked why
he had engaged in the second cocaine transaction; while he did not
specifically reference Merlino's order, he responded that he had
not wanted to do the drug deal, and he did so because he "had to
bring money to Philadelphia" and so he "was desperate."
Luisi admitted that at one point in his life he had been
involved in drug distribution. However, he testified that he
stopped his involvement in that business when he joined the LCN in
7
A third cocaine transaction was also negotiated, but it was
never fully executed. On June 25, 1999, Luisi informed McGowan
that the supply of cocaine had tightened and that things would be
"dead" for a while. Luisi was arrested three days later.
-12-
mid-1998, and he gave several reasons for this. At the time Luisi
joined, Georgie Borghesi (another LCN captain) and Merlino both
told Luisi that he was not to deal drugs. Additionally, Luisi
testified that around that time he had a "spiritual encounter," and
he realized that his "whole lifestyle was wrong." Because he was
an LCN captain, he found it difficult to realize fully his
spiritual aspirations, but he testified that he was at least
partially able to implement them by ending his involvement with
drugs as of late 1998.8
Luisi also offered an explanation for why he had seemed
receptive to the cocaine deal, even before receiving the order from
Merlino on April 28th. He claimed he had been trying to "pal off"
McGowan and Previte; that is, he politely pretended to be
cooperating with them on the drug deal, while in fact he had no
intention of ever delivering drugs to them.
Before the jury was instructed, Luisi's attorney asked
the district court to dismiss the case on the ground that the
government had engaged in allegedly outrageous conduct, thereby
violating Luisi's due process rights. The court never ruled on
8
On cross-examination, the government attempted to impeach
Luisi by suggesting that the spiritual encounter was not genuine.
Luisi admitted that at least one member of his crew had been
"dabbling" in cocaine even after Luisi claimed to have ceased his
involvement with drugs. Luisi also admitted that he was aware of
this "dabbling," and that he shared in the profits that resulted
from it. Luisi did say that the drug quantities involved in this
"dabbling" where much smaller than the quantities involved in the
deals with McGowan.
-13-
that motion; such a motion is an issue for the judge and not the
jury. See United States v. Bradley, 820 F.2d 3, 7 n.5 (1st Cir.
1987). However, over the government's objection, the district
court did agree that Luisi was entitled to an entrapment
instruction.
The district court's entrapment instructions correctly
informed the jury that the government had the burden to prove,
beyond a reasonable doubt, that Luisi had not been entrapped. See
United States v. Walter, 434 F.3d 30, 37 (1st Cir. 2006). The
district court further explained that the government had to prove,
beyond a reasonable doubt, that at least one of two things was
true: either (1) "no government agent9 or person acting on behalf
[of] or . . . under [the] auspices of the government persuaded or
induced the defendant to commit" the charged crimes; or (2) "the
defendant was ready and willing to commit the [charged] crime[s]
without persuasion from the government." This was also a correct
statement of the law. See United States v. Gamache, 156 F.3d 1, 9
(1st Cir. 1998) (explaining that the two prongs of an entrapment
defense are improper government inducement and lack of
predisposition).
Luisi specifically asked for an instruction indicating
that if the jury found that Previte had induced Merlino, that meant
9
The district court did not provide a definition for the term
"government agent."
-14-
that Merlino's order could be considered government action. The
district court refused, stating that the instruction was improper
because there was a factual dispute over whether the government's
responsibility ended due to the presence of an intermediary.
Shortly after commencing deliberations, the jury sent the
court a question that revealed it was considering Merlino's role
and how it related to the entrapment defense. The jury asked: "Is
Merlino's request of Luisi, if determined to be excessive pressure,
considered to be government persuasion or inducement because the
contact between Merlino and Luisi resulted from the government
agent Previte and Merlino?"
The court and the parties researched the issue overnight,
and returned in the morning to discuss the proper response. Luisi
contended that because Previte had spoken to Merlino about the
cocaine transaction, and because Merlino's order had been
facilitated by Previte and McGowan (the latter of whom had actually
placed the three-way call to Merlino), the actions of Merlino,
Previte, and McGowan together could be attributed to the
government. The government disagreed, and based its argument on a
case from outside this circuit, United States v. Washington, 106
F.3d 983 (D.C. Cir. 1997). The government described Luisi's
asserted defense as "derivative entrapment," and it claimed that
Washington was the only case it could find recognizing the defense.
-15-
As the government read Washington, Luisi's claim was foreclosed on
the facts presented.
The court took a different route, and it ultimately
concluded that a case from this circuit, United States v. Bradley,
was controlling. In Bradley a prison inmate named Constanza, who
could have been deemed to have been acting as a government agent,
directly threatened an intermediary named Brenner to do a drug deal
on pain of physical harm. 820 F.2d at 5-6. The intermediary was
unable to do the deal on his own, and he in turn pressured his
friend -- the defendant Bradley -- to assist him. See id. at 7-8.
We found the evidence sufficient to support an entrapment
instruction for the intermediary Brenner, as the government agent
had directly threatened him. Id. But we held that Brenner's
friend, defendant Bradley, was not entitled to an entrapment
instruction: while Brenner could claim duress, Bradley had "only an
appeal to sympathy, which he was free to reject." Id. at 7. We
stated that we "would not extend the [entrapment] defense to a
remote defendant without, at least, a showing that pressure had
been put upon him by the intermediary at the instruction of the
government agent." Id. at 8.
Thus in Bradley this court rejected defendant Bradley's
argument that the government's improper inducement of Brenner could
be an indirect entrapment of Bradley, as the agent (Constanza) had
neither ordered nor expected Brenner to entrap other persons. See
-16-
id. at 7. We said that a "quite different case would be presented
if Constanza had targeted a putative seller and had instructed
Brenner to put the arm on him." Id. We then added a footnote to
"suggest that such a case, though argued to be a third-party case,
is not really a third-party case at all. The intermediary in such
instance is really acting under instructions, as a government
subagent -- a quite different situation." Id. at 7 n.6.
The district court focused upon Bradley's use of the word
"instructions," and it read that case as concerned with whether the
government agent (Previte) had "instructed" the intermediary
(Merlino) to pressure Luisi. The court concluded that because
Previte ranked below Merlino in the LCN hierarchy, Previte was in
no position to "instruct" Merlino to do anything.
Although Luisi argued for a broader reading of the word
"instruct," the district court rejected such a reading of Bradley.
In the alternative, Luisi asked that the jury be allowed to
determine whether Merlino had been "instructed," but the court
rejected that option as well.
The district court then called the jury back into the
courtroom and answered the jury's question as follows:
[I]n your consideration of the entrapment
question, you should focus your attention on
the relationship -- the direct relationship
between Mr. Previte . . . and Mr. McGowan on
the one hand, and Mr. Luisi on the other hand.
You should consider evidence as [it] relates
to the direct contact between and among those
people.
-17-
Because the district court omitted Merlino from this statement,
while simultaneously mentioning other individuals, the jury likely
concluded that it could not consider Merlino's role in any
inducement of Luisi. This was particularly so since the jury's
question specifically asked about Merlino, and the court told the
jury to focus on individuals other than Merlino. As a result, and
as the government has not disputed, the jury was precluded from
finding that Merlino's order to Luisi could be deemed improper
governmental inducement.
Later that day, the jury convicted Luisi on all three
counts of the indictment.
II.
Luisi's primary contention on appeal is that the district
court's jury instructions, as supplemented by its answer to the
jury's question, were incorrect as a matter of law. We review that
issue de novo here. See United States v. Buttrick, 432 F.3d 373,
376 (1st Cir. 2005).
We agree with Luisi that the district court's
instructions were erroneous. We begin by explaining the nature and
policies behind the entrapment defense generally. We address
Bradley, and conclude that it supports Luisi's claim of error. We
also reject the government's alternative argument, which we review
de novo, that there was no reversible error on the facts presented
because Luisi was not entitled to any entrapment instruction
-18-
whatsoever. See United States v. Nishnianidze, 342 F.3d 6, 17 (1st
Cir. 2003) (stating that a defendant is entitled to a jury
instruction so long as his legal theory is valid and there is
evidence in the record to support it).
A. Understanding the Entrapment Defense
In federal criminal cases, the entrapment defense is
neither a doctrine of constitutional dimension, nor a defense
specifically granted by statute. See United States v. Russell, 411
U.S. 423, 432-33 (1973). Rather, the defense has its origins in an
inference about congressional intent. Sherman v. United States,
356 U.S. 369, 372 (1958); see also United States v. Gendron, 18
F.3d 955, 961 (1st Cir. 1994). The Supreme Court has explained
that the "function of law enforcement is the prevention of crime
and the apprehension of criminals. Manifestly, that function does
not include the manufacturing of crime. . . . Congress could not
have intended that its statutes were to be enforced by tempting
innocent persons into violations." Sherman, 356 U.S. at 372. A
successful entrapment defense requires that there be a reasonable
doubt on both prongs of a two-pronged test.
The first prong necessitates a showing of improper
government inducement. See Gamache, 156 F.3d at 9. This aspect of
the defense plainly seeks to deter improper government conduct.
Gendron, 18 F.3d at 961. Indeed, a defendant cannot claim
entrapment when government conduct played no causal role in the
-19-
defendant's inducement. See Sherman, 356 U.S. at 372.
Nevertheless, the entrapment defense only deters government
misbehavior in cases where the defendant would otherwise be law-
abiding. Gendron, 18 F.3d at 962. That is because the second
prong requires that the defendant have a lack of predisposition to
commit the charged offense. See id.; see also Sorrells v. United
States, 287 U.S. 435, 448 (1932).
These two prongs, and the policy concerns behind them,
play important roles in delimiting the scope of the entrapment
defense. But they are not the only considerations that matter.
This court and the Supreme Court have taken account of the
practical problems facing law enforcement, particularly in the
prosecution of "victimless" crimes where "significant governmental
involvement in illegal activities" is often required. Bradley, 820
F.2d at 6-8; see also Hampton v. United States, 425 U.S. 484, 494-5
& n.7 (1976) (Powell, J., concurring in the judgment); Russell, 411
U.S. at 432; Gendron, 18 F.3d at 961. We must be mindful that "the
defense of entrapment . . . [does] not . . . give the federal
judiciary a 'chancellor's foot' veto over law enforcement practices
of which it [does] not approve." Russell, 411 U.S. at 435.
These various considerations are sometimes in tension
with one another, and we have treated the resolution of questions
about the scope of the entrapment defense as essentially exercises
in balancing. Indeed, in Bradley we weighed the competing factors
-20-
and realized that we ultimately faced "a question of social
policy." 820 F.2d at 8. Cf. United States v. Hollingsworth, 27
F.3d 1196, 1198 (7th Cir. 1994) (en banc) (characterizing
entrapment as a "common law doctrine").
We synthesize the key facts on which we must balance
competing concerns in this case. It is beyond dispute that an
individual like Previte, hired by the government as an informant,
is a "government agent" for entrapment purposes. See Sherman, 356
U.S. at 373-75. Nor can there be any dispute that Merlino's order
to Luisi, with its implied threat of physical harm or other serious
retribution, could be found by a jury to be improper inducement if
attributed to the government. See Gendron, 18 F.3d at 961;
Bradley, 820 F.2d at 7.
It is also clear that Luisi's case does not fit the
pattern of what has come to be known as "vicarious entrapment." In
"vicarious entrapment" an unknowing middleman merely tells the
defendant about an inducement that the government had used to
target the middleman. See United States v. Valencia, 645 F.2d
1158, 1168-69 (2d Cir. 1980) (recognizing the vicarious entrapment
defense). Here, the target was not the middleman Merlino, but the
defendant Luisi. Further, a jury could find that Merlino had
himself threatened Luisi. This was not a case where Merlino
repeated to Luisi a threat that Previte had made against Merlino.
Indeed, Previte did not threaten Merlino at all.
-21-
Instead, this case is much closer to what has been called
"derivative entrapment," a situation in which a government agent
"uses the unsuspecting middleman as a means of passing on an
inducement" to the defendant. 2 W. LaFave, Substantive Criminal
Law, § 9.8(a), at 93 (2d ed. 2003).10 Yet even within this
category, further refinement is required.
We have before us a situation in which a jury could find
that Previte specifically targeted Luisi, and then "induced"
Merlino to give an order to Luisi when Merlino might not have
otherwise done so. But Previte's inducement of Merlino does not
appear to have itself been improper. Previte simply helped set up
a drug transaction, explained to Merlino that Merlino would profit
from the transaction's execution, and then encouraged Merlino to
order Luisi's assistance. Cf. Gendron, 18 F.3d at 961-62
(explaining that improper inducement "goes beyond providing an
ordinary 'opportunity to commit a crime,'" and providing examples
(quoting Jacobson v. United States, 503 U.S. 540, 550 (1992))). A
jury would presumably find that Previte merely provided an
10
Some circuits have used a different meaning of "derivative
entrapment." For example, the Seventh Circuit has used it to refer
exclusively to situations in which the middleman is himself
entrapped. See Hollingsworth, 27 F.3d at 1204. By contrast, the
Fourth Circuit has used it to refer to all third-party entrapment
cases. See United States v. Squillacote, 221 F.3d 542, 573-74 &
n.19 (4th Cir. 2000). The definition we use, which comes from a
leading criminal law treatise, is a broad definition that is useful
in distinguishing "derivative entrapment" from "vicarious
entrapment."
-22-
"ordinary" inducement to Merlino; it was Merlino's inducement of
Luisi that a jury could find improper.
This is an unusual entrapment situation. Under the
original, correct instructions given, it is evident that the jury
was considering the possibility that Merlino had put excessive
pressure on Luisi, and that the jurors were unsure whether
Merlino's order could be considered "government persuasion or
inducement because the contact between Merlino and Luisi resulted
from the government agent Previte." The effect of the court's
response was the same as if it had instructed the jury, as a matter
of law, that Merlino's order could not be considered government
inducement or persuasion. We must decide whether the issue was
correctly removed from the jury's consideration.
B. Third-Party Entrapment After Bradley
In this circuit, Bradley is the leading case on third-
party entrapment. Like the district court, the government now
believes that Bradley controls this case. We examine Bradley's
facts and reasoning in greater detail.
The government agent in Bradley was a prison inmate named
Constanza. In exchange for a reduced sentence, Constanza agreed to
identify drug dealers for the government to assist in undercover
operations and prosecutions. See Bradley, 820 F.2d at 5.
Constanza told the government about an individual named Brenner,
and then he threatened Brenner with physical harm if Brenner did
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not engage in a cocaine deal with an undercover agent. Id. at 5.
Brenner in turn appealed to his friend, defendant Bradley, for
assistance in obtaining the cocaine. Id. at 6. Though Bradley
initially refused, Brenner explained that his physical safety was
in jeopardy. Id. Upon hearing this, Bradley decided to assist
Brenner. Id.
It should now be clear that Bradley presented a narrow
fact pattern: it was a case of vicarious entrapment. That is,
Brenner merely informed Bradley of a threat that had been made
against Brenner, not one that had been made against Bradley.
Although the Second Circuit's Valencia opinion had recognized that
such a vicarious entrapment defense could be viable, we considered
and rejected that position. See id. at 8. At the same time,
however, we rejected the government's argument that a defendant can
never be entrapped by a third party. See id. at 6-8.
Bradley reached these conclusions by weighing a variety
of policy considerations as applied to the facts of the case. On
the one hand was the fact that the crime would not have happened
but for the government's involvement. See id. at 6. On the other
hand were several factors. First, the government's role in
ensnaring Bradley was "attenuated" because the agent's threat
neither ordered Brenner to seek assistance nor expected it. Id. at
7. Second, Bradley acknowledged the practical difficulties for the
prosecution when it is forced to refute a defendant's claim of
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entrapment in a scenario where the only two witnesses -- the
defendant and the intermediary -- are likely to be hostile to the
government.11 See id. Third, Bradley observed that the defendant
did commit a crime, exhibiting socially inappropriate behavior.
See id. at 6. Finally, Bradley noted the fact that undercover
investigations are often needed to prosecute drug crimes. See id.
The Bradley court ultimately held that it "would not
extend the [entrapment] defense to a remote defendant without, at
least, a showing that pressure had been put upon him by the
intermediary at the instruction of the government agent." Id. at
8. The government reads "instruct" to mean "command," such that
Previte is not responsible for Merlino's threats against Luisi
unless Previte had commanded Merlino to order Luisi into the
cocaine deal. Luisi reads "instruct" to mean "convince" or
"inform." But the dispute about the use of particular language in
Bradley is largely beside the point. Bradley was a case in which
the government agent neither "commanded," "convinced," nor
"informed" the middleman (Brenner) to target Bradley. Indeed, it
was the lack of any government targeting of Bradley whatsoever on
which Bradley relied. See id. at 7. Here, unlike in Bradley, the
11
The case at hand does not present that concern. There is
a tape recording of the conversation in which the middleman
pressured Luisi. Moreover, the government agent (Previte) in fact
participated in that conversation, while another government agent
(McGowan) listened in. Consequently, the government faced fewer
practical difficulties in refuting Luisi's entrapment claim.
-25-
government's actions were specifically designed to pressure Luisi,
and the government in fact expected that Luisi would be pressured.
Bradley thus had no occasion to consider the fact pattern at hand.12
In United States v. Rogers, 102 F.3d 641 (1st Cir. 1996),
we considered a fact pattern that was more on point. In Rogers,
the defendant did not move quickly to complete a drug transaction
that an undercover agent had attempted to facilitate. Id. at 645.
In an isolated statement, the government agent "told" the middleman
to "put some heat on [the defendant]." Id. The agent had thus
specifically targeted the defendant to receive an inducement, and
Rogers relied on Bradley to conclude that the government would have
been responsible if the agent had "told" the middleman "to apply
the pressure or inducement later deemed improper." Id. (emphasis
added) (italics removed). However, Rogers factually did not
involve an agent's suggestion that improper pressure be applied to
12
We also had no occasion to consider such a fact pattern in
United States v. Murphy, 852 F.2d 1 (1st Cir. 1988). In that case,
after we rejected the defendants' entrapment arguments, we relied
on Bradley to explain why one defendant's claim to an entrapment
instruction was "foreclosed for an additional reason." Id. at 6.
We noted that to allow the claim "we would have [had] to create the
fiction that [the government agent] forced [the intermediary] into
dealing with" the defendant. Id. (emphasis added). To the extent
that our use of the word "forced" can be taken to imply a
requirement of coercion, such an implication was dicta, as the
government agent in the case never encouraged the middleman to
bring anyone into the scheme, let alone the defendant. See id.
We similarly did not deal with a pertinent fact pattern in
United States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993).
Like Bradley and Murphy, the case involved no government targeting
of the individual defendant. See id.
-26-
the defendant because "putting on some heat" was not improper.
Rogers distinguished the more sinister suggestion of putting "the
arm" on someone, a phrase that implied threatened force. Id. at
645-46.
Thus after Rogers, the law in this circuit permits an
entrapment instruction involving a middleman when there is evidence
that (1) a government agent specifically targeted the defendant in
order to induce him to commit illegal conduct; (2) the agent acted
through the middleman after other government attempts at inducing
the defendant had failed; (3) the government agent requested,
encouraged, or instructed the middleman to employ a specified
inducement, which could be found improper, against the targeted
defendant; (4) the agent's actions led the middleman to do what the
government sought, even if the government did not use improper
means to influence the middleman; and (5) as a result of the
middleman's inducement, the targeted defendant in fact engaged in
the illegal conduct.13
13
Contrary to our precedent, several circuits categorically
deny the entrapment defense in all third-party situations where the
middleman is unaware that he is helping the government. See
Squillacote, 221 F.3d at 574; United States v. Thickstun, 110 F.3d
1394, 1398 (9th Cir. 1997); United States v. Martinez, 979 F.2d
1424, 1432 (10th Cir. 1992). The Third Circuit's law varies.
Compare United States v. Klosterman, 248 F.2d 191, 195-96 (3d Cir.
1957) (concluding that the third-party entrapment defense was
available in a case where the defendant was specifically targeted
and the middleman was unwitting), with United States v. Beverly,
723 F.2d 11, 12 (3d Cir. 1983) (per curiam) (failing to cite
Klosterman and claiming that the third-party entrapment defense is
categorically unavailable when the middleman is unwitting). With
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The government reads Rogers differently. It contends
that the word "told" in Rogers must mean an imperative equivalent
to the government's interpretation of "instruct" in Bradley. It
also reads Rogers to state a requirement that the agent have
improperly induced the middleman.
We disagree. First, we think that the government's
argument is contrary to the plain meaning of "told," and we see
nothing in the context of Rogers that overrides this. Indeed, in
concluding that the agent had not "told" the middleman to
improperly induce the defendant, Rogers pointed out that "nothing
in the record show[ed] that [the agent] urged, suggested or was
even aware of" the middleman's improper inducement. See 102 F.3d
at 645 (emphases added). Urging and suggesting are hardly
equivalent to ordering, nor do they by themselves necessarily
constitute improper inducement. Second, if the Rogers court had in
fact read Bradley the same way as the government does, we do not
see how the Rogers court could have considered it an open question
whether the government can be responsible for an agent's mere
knowing tolerance of improper inducement by a middleman.14 See id.
the possible exception of the Ninth Circuit's opinion in United
States v. Emmert, 829 F.2d 805 (9th Cir. 1987), we are unaware of
any cases in which these circuits have rejected the third-party
defense when confronted with the kind of fact pattern we face here.
As for Emmert, we respectfully disagree with the Ninth Circuit's
conclusions.
14
Mere knowing tolerance is not presented by the facts here,
and we do not reach that issue.
-28-
Moreover, the policy concerns discussed in Bradley
support our reading of Rogers. Bradley thought it important that
the government's role was "attenuated" in that case because the
agent had not attempted to ensnare the defendant. Bradley, 820
F.2d at 7. But in a case where the government agent specifically
targets the defendant, and then causes the middleman to take a
specifically contemplated action (that is arguably improper
pressure) with the goal of ensnaring the defendant, the
government's role is hardly attenuated. Additionally, Bradley
worried about the fact that the government had turned a potentially
innocent person into a criminal, see id. at 6, though it ultimately
decided that this concern was outweighed by other issues. But in
Bradley the government had never attempted to induce defendant
Bradley directly. Bradley's concern for potential innocents weighs
heavier when the government has tried -- and failed -- to induce
the defendant without the use of a middleman.
In light of our understanding of the law, we think a
properly instructed jury could conclude that the government was
responsible for Merlino's order to Luisi. Indeed, such a jury
could decide that: (1) Previte specifically requested that Merlino
order Luisi to engage in the cocaine deal; (2) Previte's request
came after earlier government efforts to ensnare Luisi, without a
middleman, had not been fruitful; (3) Previte, as an LCN captain,
understood that the order he requested from Merlino would contain
-29-
an implied threat of death, physical harm, or serious retribution
if Luisi failed to comply; (4) Merlino's order to Luisi was exactly
what Previte had requested; and (5) Merlino would not have given
the order if Previte had not encouraged him to do so.15 As a
result, we think that the district court incorrectly answered the
jury's question.
This result is supported by a Fifth Circuit case. In
United States v. Anderton, 629 F.2d 1044 (5th Cir. 1980), the Fifth
Circuit allowed the entrapment defense in a case where law
enforcement officers specifically targeted the defendant, and then
put unspecified "pressure" on the unwitting middleman to bring the
defendant into a pre-designed criminal scheme. Id. at 1045, 1047.
Without discussing whether the middleman had been improperly
induced, the court found it important that the criminal design
originated from the government itself. See id. at 1046-47.
Our conclusion is also supported by the D.C. Circuit's
analysis in Washington. In Washington, an undercover FBI agent
posed as a drug lord and recruited a corrupt police officer to help
him. See 106 F.3d 990-91. After paying the officer for his
15
Indeed, the jury's question was premised on the idea that
the government had caused Merlino to give the order. While the
government observes that there was no evidence introduced at trial
as to Merlino's lack of predisposition, none was needed. The
premise of the jury's question was perfectly consistent with a
finding that Merlino was predisposed to be involved in a cocaine
transaction. See Gendron, 18 F.3d at 962 (distinguishing lack of
predisposition from simple causation).
-30-
services, the agent "asked [the officer] . . . to recruit as many
new officers as he could." Id. at 991. The corrupt officer
agreed, see id., but then recruited the defendants with an
inducement not contemplated by the undercover agent. See id. at
992, 994-95. The Washington court rejected the derivative
entrapment instruction on the facts of the case. Id. at 995.
Importantly, however, it held that the entrapment defense is
available where the government does contemplate the improper
inducement given to the defendant, and causes the middleman to give
that inducement as a result of a government agent's "'instruction
or direction.'" Id. at 993 (quoting United States v. Layeni, 90
F.3d 514, 520 (D.C. Cir. 1996)); see also id. at 995.16
The government cites to other cases, but none presented
the fact pattern at issue here. See, e.g., Hollingsworth, 27 F.3d
at 1200-02, 1204-05; United States v. Hodges, 936 F.2d 371, 371-72
(8th Cir. 1991); United States v. Pilarinos, 864 F.2d 253, 254-56
16
The government reads Washington differently, concluding that
Washington requires the actual inducement applied to the
intermediary to be the same kind of inducement applied to the
defendant. This reading seems premised on an assumption that the
FBI agent in Washington had improperly induced the middleman. Yet
the court merely described the agent as "asking" for the
middleman's assistance. Washington, 106 F.3d at 991. Washington
contains no explanation of how this inducement was improper, and
the court's logic suggests that any inquiry into the propriety of
the agent's request would be irrelevant. Moreover, Washington
cited an earlier D.C. Circuit case -- Layeni -- for its rule. See
id. at 993-95. Layeni had in turn implied that the derivative
entrapment defense is available if a government agent merely
"suggests" to an intermediary that he apply particular inducements
to a defendant. See Layeni, 90 F.3d at 518.
-31-
(2d Cir. 1988).17 The Seventh Circuit has even intimated that the
defense might be available when a government agent specifically
targets the defendant, and then encourages the middleman to induce
that defendant. See Hollingsworth, 27 F.3d at 1204 (citing, inter
alia, Bradley).
Thus we conclude that the district court erred in
answering the jury's question in a way that excluded Merlino's
order from the jury's consideration. We do not suggest that a jury
would necessarily have concluded that Luisi was entrapped through
Merlino. We hold only that the defendant was entitled to have a
properly instructed jury consider the issue.
C. Predisposition
As a fallback argument, the government contends that
Luisi failed to present sufficient evidence of his lack of
predisposition, and thus was not entitled to any entrapment
instruction at all. We readily dispose of this argument.
A judge may only instruct the jury on entrapment if the
defendant meets his entry-level burden of production. United
17
The Sixth and Eleventh Circuits have, in somewhat limited
fashion, also rejected unwitting intermediary claims on the facts
presented. See, e.g., United States v. McLernon, 746 F.2d 1098,
1109 (6th Cir. 1984); United States v. Mers, 701 F.2d 1321, 1340
(11th Cir. 1983). With one exception, we are not aware of any
cases in which these circuits have faced facts similar to those in
this case. The one exception would be the Fifth Circuit's 1980
decision in Anderton -- which is binding precedent in the Eleventh
Circuit, see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc) -- and Anderton supports our reasoning in this
case.
-32-
States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994). That is, a
defendant is entitled to an entrapment instruction only if there is
"some evidence," on both elements of the entrapment defense,
sufficient to raise a reasonable doubt that the defendant was
merely an unwary innocent. See United States v. Joost, 92 F.3d 7,
12 (1st Cir. 1996). The defendant must show "more than a scintilla
of evidence, more than mere creation of an opportunity for criminal
activity." Id. Nonetheless, even a defendant's self-serving
testimony can suffice, especially when it has some circumstantial
corroboration. See id.
Luisi made the requisite entry-level showing. We have
already explained why a jury could find improper governmental
inducement. Additionally, Luisi introduced "some evidence" of his
lack of predisposition. He testified that sometime before he met
McGowan, he experienced a "spiritual encounter," and that as a
result of this spiritual encounter he resolved to stop dealing
drugs. This story was consistent with evidence that Luisi had
deliberately stalled the drug transaction for several months to
"pal off" McGowan, thereby indefinitely delaying a drug deal to
which Luisi was opposed. Indeed, a jury could find that this two-
month delay stood in stark contrast to the two-day lag between when
Merlino gave Luisi the order, and when McGowan received drugs from
Luisi's colleagues.
-33-
The government suggests that Luisi's "spiritual
encounter" was not credible, and that there was "overwhelming"
evidence of Luisi's predisposition, including the fact that he
previously had been a cocaine dealer, and the fact that Luisi
continued to receive profits from small drug deals undertaken by
one of his associates.
In this procedural posture, however, our job is not "to
weigh the evidence, make credibility determinations, or resolve
conflicts in the proof." Gamache, 156 F.3d at 9. Accordingly, we
find that Luisi introduced sufficient evidence of his lack of
predisposition to entitle him to an entrapment instruction.
III.
Luisi further argues that the charges against him in fact
should have been dismissed because the government engaged in
outrageous conduct that violated his due process rights.
Outrageous government conduct is an issue of law, and it is the
province of the district court -- and not the jury -- to rule on a
defendant's motion to dismiss on that ground. See Bradley, 820
F.2d at 7 n.5. When a district court rules on such a motion, its
ultimate conclusion is subject to de novo review, while its factual
findings are reviewed for clear error. See United States v.
Guzman, 282 F.3d 56, 58 (1st Cir. 2002).
In this case, the district court never ruled on Luisi's
motion, and thus we have no factual findings in the record to
-34-
assist us.18 Nonetheless, we think that the basic facts needed to
rule on this matter are clear enough, and that we are able to reach
the necessary legal conclusions. Luisi has asked us to find that
the government's conduct was outrageous, and the government has
also asked us to resolve the issue.
The outrageousness doctrine permits dismissal of criminal
charges only in those very rare instances when the government's
misconduct is so appalling and egregious as to violate due process
by "shocking . . . the universal sense of justice." Russell, 411
U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton,
361 U.S. 234, 246 (1960))(internal quotation marks omitted); see
also United States v. Nunez, 146 F.3d 36, 38 (1st Cir. 1998).
While the doctrine is often invoked by criminal defendants, it has
never yet been successful in this circuit. See United States v.
Santana, 6 F.3d 1, 4 (1st Cir. 1993) (collecting First Circuit
cases rejecting the argument); United States v. Panitz, 907 F.2d
1267, 1272-73 (1st Cir. 1990) (collecting additional First Circuit
cases rejecting the argument); see also, e.g., United States v.
Capelton, 350 F.3d 231, 243 n.5 (1st Cir. 2003) (rejecting the
argument on the facts presented); Nunez, 146 F.3d at 38-39 (same);
18
It is not clear to us whether the district court implicitly
denied the motion or not, but in any event we are left with no
findings of fact and no reasoning.
-35-
United States v. Matiz, 14 F.3d 79, 82-83 (1st Cir. 1994) (same).
This case is no exception.19
Luisi's argument for dismissal of the charges relies
heavily on dicta in Bradley that "outrageous conduct . . . might
well be found in a threat of serious physical harm." 820 F.2d at
7. But at the same time, Bradley acknowledged that an
outrageousness claim might be defeated if a defendant has been "too
active himself." Id. Moreover, defendant Bradley himself had not
been threatened, and we declined to consider the matter further.
See id.
Whatever fact situation Bradley had in mind, it was not
this one. Here, even though the government's actions have risked
giving the defendant a viable entrapment claim, it is another thing
entirely to say that the conduct was "outrageous." After
considering the totality of the circumstances in this case, we
think the government's actions fell well short of shocking the
"universal sense of justice."
19
In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), the
Third Circuit did find outrageous misconduct. As our court has
recognized, however, the Third Circuit has subsequently questioned
its own holding in Twigg. See United States v. Porter, 764 F.2d 1,
9 n.4 (1st Cir. 1985) (citing Beverly, 723 F.2d at 12). In any
event, the factual background of Twigg makes it readily
distinguishable.
-36-
IV.
The judgments of conviction are vacated and the case is
remanded for further proceedings consistent with this opinion.20
20
In light of our disposition, we have no need to address
Luisi's claim that he was sentenced improperly in light of United
States v. Booker, 543 U.S. 220 (2005).
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