United States v. Pitt

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

10-1-1999

United States v Pitt

Precedential or Non-Precedential:

Docket 98-7383, 98-7497

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Recommended Citation

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Filed October 1, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-7383 and 98-7497

UNITED STATES OF AMERICA,

v.

RICHARD LYNN PITT,

Appellant in No. 98-7383

UNITED STATES OF AMERICA,

v.

WILLIAM MICHAEL STRUBE,

also known as Mike Strube,

Appellant in No. 98-7497

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Judge: Honorable Sylvia H. Rambo

(D.C. Crim. No. 97-00108)

Argued May 26, 1999

BEFORE: GREENBERG and ALITO, Circuit Judges,

and DOWD,* District Judge

(Filed: October 1, 1999)

_________________________________________________________________

* Honorable David D. Dowd, Jr., Senior Judge of the United States

District Court for the Northern District of Ohio, sitting by designation.

Bryan S. Walk (argued)

112 Walnut Street

Harrisburg, PA 17101

Attorney for Appellant

Richard L. Pitt

Benjamin S. Waxman (argued)

William R. Tunkey

Robbins, Tunkey, Ross, Amsel

Raben & Waxman

2250 Southwest Third Avenue

4th Floor

Miami, FL 33129

Attorneys for Appellant

William Michael Strube

David M. Barasch

United States Attorney

Eric Pfisterer (argued)

Assistant United States Attorney

Theodore B. Smith, III (argued)

Assistant United States Attorney

Federal Building

P.O. Box 11754

Harrisburg, PA 17108-1754

Attorneys for Appellee

OPINION OF THE COURT

DOWD, District Judge.

I. INTRODUCTION

The appellants, Richard Pitt and William Strube, stand

convicted of the primary charge of engaging in a 1994

conspiracy to possess with intent to distribute 486

kilograms of cocaine. Richard Pitt was, at the time of the

conspiracy, a documented confidential informant for the

2

United States Customs Service. Pitt and Strube defended

their conduct with respect to the 486 kilograms of cocaine

as a necessary predicate to obtaining, in a reverse sting

operation, an enormous quantity of cocaine from the Cali

Cartel in Colombia. In preparation, Pitt and Strube

purchased the Ridgely Warfield, a sea-going vessel which

was to be used to transport the Cali cocaine. Thus the

primary defense advanced by Pitt and Strube was that of

public authority, recognized by Fed. R. Crim. P. 12.3. The

district court's denial of a jury instruction based on the

defense of public authority is the primary error advanced in

the appeals of Pitt and Strube. We affirm the convictions

and sentences.

II. FACTUAL AND PROCEDURAL BACKGROUND

Richard Pitt, a pilot and a smuggler by trade, enlisted as

a documented confidential informant with the U.S.

Customs Service in 1992 after his release from a Mexican

prison based on a sentence arising from flying a load of

cocaine into Mexico from Colombia. In 1993, Pitt brokered

a deal between an undercover Customs agent and a group

of Mexicans to buy $1.3 million worth of cocaine. The

reverse sting was successful and $1.3 million was seized,

with Pitt receiving $350,000 for his efforts.

While still working with U.S. Customs Special Agents

Roger Bower and Chuck Mohle, Pitt conceived a plan to

entice the Cali Cartel to hire him to transport a large

quantity of cocaine by an ocean-going vessel. Pitt enlisted

Strube in that plan and they acquired the Ridgely Warfield

for that avowed purpose. Agents Bower and Mohle were

advised on the Pitt-Strube plan. However, Pitt and Strube

did not advise the Customs agents that, in the summer of

1994, they were receiving and transporting large shipments

of cocaine from Los Angeles to New York. The first shipment

of 150 kilograms took place in mid-July; the second

shipment of 150 kilograms took place in early August of

1994. A California State police officer intercepted the third

shipment of 186 kilograms destined for New York in a

vehicle driven by Pitt. Information about the third shipment

was obtained by an on-going Title III interception; however,

the stop of vehicle was made for the ostensible reason of a

3

traffic violation so as avoid any revelation about the Title III

operation. The traffic stop led to the seizure of the 186

kilograms in the third shipment.

During the government's case in chief, persuasive

960<!>testimony was produced which demonstrated the

culpability of Pitt and Strube relating to the first two

shipments of cocaine to New York, including the testimony

of Pitt's relatives who had been involved in the operation.

The recipient of the cocaine in New York, Gloria Ramirez,

also testified and accounted for the large sums of cash that

were subsequently delivered to Pitt and Strube in payment

for the earlier shipments.

The government produced Customs Agents Bower and

Mohle who offered extensive testimony about their

relationship with Pitt as the documented confidential

informant for Customs. They conceded that Pitt had

outlined his plan to persuade the Cali Cartel to use the sea-

going vessel Ridgely Warfield, to transport cocaine to the

United States for seizure. However, they denied any

advance information about the Pitt-Strube plan to ship the

468 kilograms of cocaine to New York from Los Angeles.

They also insisted that Pitt had been advised by his

separate contacts that he was not authorized to engage in

criminal conduct as a part of his plan. Pitt also testified at

length about his contact with Bower and Mohle and

suggested that they had agreed inferentially with criminal

conduct to bring about the anticipated large shipment of

cocaine by use of sea-going vessel.

In ruling on the Pitt motion for a new trial, the district

court summarized his testimony as follows:

. . . Defendant himself admitted that no one had told

him he could sell cocaine for profit. (Trial Transcript

("Tr.") at 1218.) He also acknowledged that he knew it

was against U.S. Customs' policy to let drugs "walk"

and, therefore, could not get official approval for his

operation. (Tr. at 869.) In fact, he admitted hesitating

in carrying out his plan once he was requested by the

Cali Cartel to make three test runs because he knew it

was wrong. (Tr. at 1201.) Further, he did not tell

agents Bowers and Mohle the full extent of his plan

4

until after he was arrested. (Tr. at 1181.) Additionally,

there was testimony from the agents that they never

authorized Defendant to distribute cocaine and that

Defendant had been told in the past this could not be

done. . . .

(Supplemental Appendix ("S.A.") at 21).

III. DISCUSSION

A. THE DEFENSE OF PUBLIC AUTHORITY

Defendants Pitt and Strube contend that prejudicial error

resulted from the district court's refusal to give a jury

instruction based on their defense of public authority.

Defendants filed a Notice of Intent to Present the Defense of

Public Authority pursuant to Fed. R. Crim. P. 12.3 and

requested that the district court issue a jury instruction for

that defense. The district court declined reasoning that,

since Pitt did not have actual authority to empower Strube

to move cocaine, Strube was not entitled to an instruction

on that defense. Instead, the district court instructed the

jury on entrapment by estoppel for Pitt and mistake of fact

for Strube.1

The district court's refusal to give a requested jury

instruction is reviewed for an abuse of discretion. United

States v. Gross, 961 F.2d 1097, 1101 (3d Cir.), cert. denied,

506 U.S. 965 (1992). In determining whether the district

court abused its discretion, this Court evaluates whether

the proffered instruction was legally correct, whether or not

it was substantially covered by other instructions, and

whether its omission prejudiced the defendant. Id. However,

inasmuch as we review a "court's refusal to instruct the

jury on a defense theory de novo," United States v. Stewart,

___ F.3d ___, 1999 WL 499881, at *10 (3d Cir. July 16,

1999), it would have been an abuse of discretion if the

defendants were entitled to a public authority charge and

the court refused to give it.

The defense of "public authority" is based in common

_________________________________________________________________

1. Mistake of fact is not a complete defense, but can negate the intent

element necessary for a conviction.

5

law. Under the defense, illegal actions committed by a

public official or an officer of the law in the course of his

duties were not crimes.2 Originally, this defense only

applied to cases where the agency possessed the authority

to permit the actor to engage in the otherwise illegal

conduct and the actor was given permission. Published

decisions pertaining to the defense of actual public

authority are sparse, possibly because reliance on the

defense is rare.

Recognition of the defense of "apparent" public authority

appears in United States v. Barker, 546 F.2d 940 (D.C. Cir.

1976), a case related to the infamous Watergate debacle. A

divided court of the D.C. Circuit decided that the defense

should be extended to an individual who acted at the

behest of a government official and in reasonable reliance

on that official's authority to permit the behavior. Id. at

948-49. Judge Wilkey, writing for the majority, cited two

requirements a defendant must show to excuse his

conduct: 1) there were facts justifying defendant's

reasonable reliance on the official; and 2) there is a legal

theory on which to base a reasonable belief that the official

possessed the authority to permit the conduct. Id. at 949.

This has become known as the defense of "apparent public

authority." This defense differs from actual public authority

because the defendant is not required to establish that the

government official had the authority to sanction the illegal

activity. Instead, the defendant asserts the belief that his

action was condoned by the agency which he believed had

authorized him to engage in the criminal conduct.

After Barker, the number of cases where the defendant

claimed that he was acting under actual or apparent public

authority began to increase.3 As a consequence, Congress

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2. Often the cases involved police officers and their conduct in the

course

of their duties.

3. Many times, defendants claimed they were acting on the authority of

the Central Intelligence Agency ("CIA"). See, United States v. Anderson,

872 F.2d 1508 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United

States v. Rosenthal, 793 F.2d 1214 (11th Cir.), modified on other

grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919

(1987); United States v. Smith, 780 F.2d 1102 (4th Cir. 1985); United

6

became concerned with the increasing number of

defendants attempting to utilize this common law defense,

the problems of surprise the defense created at trial and

the subsequent disclosures of confidential information

which the defense often required.4 Therefore, Congress

proposed an addition to the Federal Rules of Criminal

Procedure requiring a defendant to make a pre-trial

disclosure of his intention to use the defense. The proposed

rule was added to the "Omnibus Intelligence and Security

Improvements Act" (H.R. 1082, 1985) and was entitled

"Title II --Intelligence or Law Enforcement Defense Pretrial

Notification Act."

When the Omnibus Intelligence and Security

Improvements Act was not enacted into law, the Justice

Department submitted the proposed rule to the Criminal

Rules Advisory Committee. The Committee prepared and

circulated a proposed rule in September of 1986 requesting

comment, proposed alterations, and possible concerns.

Before the proposed rule emerged from the rule-making

process, it was adopted as part of the Anti-Drug Abuse Act

of 1988 (Pub. L. No. 100-690, S 6483, 104 Stat. 4181).

Since Congress short-circuited the rule-making process

in adding a Rule 12.3 to the Federal Rules of Criminal

Procedure, no Advisory Committee Note ("Note")

accompanies the rule; however, a proposed Note was

submitted in connection with the Criminal Rules Advisory

_________________________________________________________________

States v. Wilson, 732 F.2d 404 (5th Cir.), cert. denied, 469 U.S. 1099

(1984); United States v. Wilson, 750 F.2d 7 (2d Cir. 1984), cert. denied,

479 U.S. 839 (1986); United States v. Wilson, 721 F.2d 967 (4th Cir.

1983); United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980). As a

result, the defense of actual or apparent public authority was often

termed the "CIA Defense."

4. In fact, many of the pre-Rule 12.3 public authority cases involve

defendants/appellants claiming error in both the denial of public

authority jury instructions and in excluding evidence supporting their

public authority defense under the Classified Information and

Procedures Act ("CIPA"). CIPA was enacted to reduce the amount of

classified information divulged by requiring pre-trial hearings to

determine the relevance of the evidence.

7

Committee September 1986 proposal.5 Courts have

subsequently looked to that proposed but unadopted Note

for guidance as to the scope and application of Rule 12.3.

That Note cites two cases as examples of what the Rule

was intended to cover, United States v. Sampol, 636 F.2d

621 (D.C. Cir. 1980) and United States v. Wilson, 721 F.2d

967 (4th Cir. 1983). In Sampol, defendants convicted of

murder for their role in an assassination appealed the

court's refusal to allow their affirmative defense that the

CIA authorized the killing. In Wilson, a former intelligence

agent was convicted of selling weapons to Libya. On appeal,

Wilson claimed he had acted on the good faith belief that

his actions were sanctioned by the CIA. The court refused

to overturn Wilson's conviction because he had been

permitted to introduce evidence of an undercover defense

and the jury had rejected it.6

Once Rule 12.3 was enacted, the public authority defense

required two components: 1) a procedural component,

namely, compliance with the Rule; and 2) a substantive

common law component. Rule 12.3 itself is entirely

procedural in nature. It is similar to Rules 12.1 and 12.2

which require defendants to give notice for defenses of alibi

and insanity. Rule 12.3(a)(1) requires that the defendant

file, at the time of pre-trial motions, a notice of intent to

use the defense of actual or believed public authority. Rule

12.3(a)(2) also includes disclosure requirements pertaining

to witnesses and other evidence. Rule 12.3 does not,

however, include a discussion of substantive requirements

for the defense. Therefore, the Rule does not alter the

common law requirements.

The language of Rule 12.3 enumerates two defenses: 1)

actual public authority; and 2) believed or apparent public

_________________________________________________________________

5. The Proposal is reprinted at 111 F.R.D. 489, 499.

6. Wilson was unsuccessful in raising this defense in two subsequent

trials as well. United States v. Wilson, 732 F.2d 404 (5th Cir. 1984)

(determining that refusal to permit "CIA Defense" and good faith defense

for his selling of plastic explosives to Libya was not error); United

States

v. Wilson, 750 F.2d 7 (2d Cir. 1984) (holding that refusal to allow "CIA

Defense" for charges of attempted murder and witness tampering was

not error).

8

authority. As already discussed, actual public authority

involves a defendant who was authorized to commit the

otherwise illegal act, whereas apparent public authority

occurs when the defendant was not actually permitted to

engage in the criminal activity but believed he was. Just as

for actual public authority, the enactment of Rule 12.3 did

not alter the defense of apparent public authority. 7

Therefore, jurisdictions where actual authority was required

were not altered.

This Court approves and will follow the holding in United

States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994),

which limits the use of the defense of public authority to

those situations where the government agent in fact had

the authority to empower the defendant to perform the acts

in question. As a corollary, Baptista-Rodriguez holds that

where the government agent had no such power, the

defendant may not rest on the "public authority" defense.

In this case, the unrebutted testimony was that neither

Bowers nor Mohle had the authority to empower Pitt to

engage in acts alleged and proven with respect to the

charged conspiracy. To the contrary, the testimony was to

the effect that only the Director of Customs and the

Director of the Drug Enforcement Agency, in conjunction

with the approval of the United States Attorney for the

subject district, could sanction and authorize the type of

conduct in which Pitt and Strube engaged with respect to

the charged 468 kilograms of cocaine.

The district court did charge the jury, as to Pitt only, with

respect to the defense of entrapment by estoppel. This

defense arises when a government official tells a defendant

that certain conduct is legal and the defendant commits

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7. United States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995), aff'd

sub nom United States v. Johnson, 139 F.3d 1359 (11th Cir.), reh'g

denied, 149 F.3d 1197 (11th Cir. 1998) (determining that authority relied

upon must be real and not apparent), cert. denied, ___ U.S. ___, 119

S.Ct. 2365 (1999); United States v. Rosenthal , 793 F.2d 1214, 1235-37

(11th Cir. 1986) (stating that defendant could only be exonerated if he

relied on real and not apparent authority); United States v. Duggan, 743

F.2d 59, 83-84 (2d Cir. 1984) (declining to adopt apparent authority

from Barker and instead requiring actual authority).

9

what otherwise would be a crime in reasonable reliance on

the official representation. See Baptista-Rodriguez, 17 F.3d

at 1368 n.18 for a comparative analysis of the defenses of

innocent intent, public authority, apparent public authority

and entrapment by estoppel.

In this case, while there was no testimony by Pitt that he

was told by either Bowers or Mohle that he could engage in

the indicted activity, Pitt did offer testimony to the effect

that he believed he had the implicit authority to engage in

whatever criminal activity was necessary in order to entice

the Carli Cartel to eventually use his ship to transport the

large quantity of cocaine to the United States for seizure

and thereby bring about the arrest of persons who would

arrive to take control of the shipment or parts of the

shipment.8

We find no error in the decision of the district court in

refusing to give the public authority defense instruction

and we find that the entrapment by estoppel instruction

was the proper instruction as to Pitt. However, Strube, who

had no contact with Bowers or Mohle prior to his

involvement with the shipments of the cocaine from Los

Angeles to New York was not entitled to a similar

instruction. The assurances of Pitt, his partner in crime, do

not rise to the level of instructions, encouragement, or

advice from a government official.

B. DENIAL OF PITT'S MOTION FOR ACQUITTAL BASED

ON THE DEFENSE OF ENTRAPMENT BY ESTOPPEL

Pitt argues that it was error for the district court to deny

his motion for acquittal because the prosecution failed to

rebut his defense of entrapment by estoppel. Against that

argument the Court is required to view the evidence and

_________________________________________________________________

8. The requirement of pre-trial notice as to a defense based on

government authority, alibi, and insanity entitles the government to be

prepared for such a defense. Curiously, we find no requirement that a

defense based on entrapment by estoppel be the subject of similar pre-

trial notice and accompanying requirements. However, from a conceptual

standpoint, we see little, if any, difference between the defense of

apparent public authority and entrapment by estoppel. Since the issue

of notice prior to use of the entrapment by estoppel defense has not been

briefed, we see no need to rule definitively on that issue at this time.

10

inferences logically deduced therefrom in the light most

favorable to the jury verdict. United States v. Pungitore, 910

F.2d 1084, 1128-29 (3d Cir. 1990), cert. denied, 500 U.S.

915 (1991).

United States v. Brebner, 951 F.2d 1017, 1025 (9th Cir.

1991) teaches that the entrapment by estoppel defense

rests not on the defendant's state of mind, but on a due

process theory that shifts the focus from the conduct of the

defendant to the conduct of the government. Pitt argues

that the facts, as developed in a light most favorable to the

government, were not sufficient to contradict his defense of

entrapment by estoppel. He points to the fact that he was

under contract with Customs to work as a confidential

informant; that the Customs agents were aware that Pitt

would work on cases without a specific contract; and that

they knew of his plan to import approximately 16,000 kilos

of cocaine into the United States from Colombia.

Based on that combination of facts, Pitt argues that it

could be inferred that he was authorized to engage in the

preliminary transactions, i.e., the shipment of the 468

kilograms of cocaine from Los Angeles to New York City, to

gain the confidence of the Colombian cartel. Such an

argument justified the district court's submission of the

defense of entrapment by estoppel, but is insufficient to

support an acquittal as a matter of law.

The defense of entrapment by estoppel turns on

credibility. The jurors apparently believed Customs Agents

Bowers and Mohle when they testified that they did not

know of Pitt's plan to distribute the three shipments of

cocaine from Los Angeles to New York, nor had they

authorized such conduct. Moreover, as indicated in the

district court's summary cited earlier, Pitt clearly testified

that no one authorized him directly or indirectly to commit

the crimes for which he stands convicted.

The district court properly denied Pitt's post-verdict

motion for an acquittal.

C. FAILURE TO DISMISS THE INDICTMENT AGAINST

STRUBE FOR ALLEGED OUTRAGEOUS CONDUCT BY THE

GOVERNMENT

Defendant Strube argues on appeal that, due to

outrageous conduct by the government, it was error for the

11

district court to refuse to dismiss the indictment against

him. Strube, unlike Pitt, did not testify. On appeal, through

counsel, he appears to concede that he engaged in the

charged conspiracy, but argues that from its inception

through its planning, staffing, funding, implementation and

direction, it was a creature of Richard Pitt, who was himself

a creature of the United States Customs Service. While

acknowledging the fact of a dispute between Pitt and the

Customs agents as to whether they had authorized Pitt to

move loads of drugs across the country in aid of the plan

to use the Ridgely Warfield ship to transport the cocaine

from Colombia to the United States, Strube argues that it

is not in dispute that Pitt told his recruits to move loads of

cocaine across the country, that Pitt told them that

Customs had specifically authorized them to do this, and

that the recruits, including Strube, had every reason to

believe what Pitt told them and to do as instructed.

Strube advances the proposition that the government

action by Bowers and Mohle in overseeing the Pitt operation

with the goal of eventual use of the Ridgely Warfield to

make a huge drug bust aimed at discouraging the

continued importation of cocaine by a Colombian cartel,

should require under due process principles a dismissal of

his prosecution. To achieve that desired result, Strube

alleges that the conduct of Bowers and Mohle in their

oversight of Pitt constituted "outrageous government

conduct."

The government argues that Strube failed to raise this

defense at trial and, therefore, it should be considered

waived and Strube should be precluded from raising the

issue on appeal.

The defense of outrageous government conduct examines

whether a defendant's due process rights have been

violated because the government created the crime for the

sole purpose of obtaining a conviction. It emerged from

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

where the Court determined that the entrapment defense

was not available to the defendant because he was

predisposed to committing the crime, but went on to state

that some day there may be a due process defense based

upon outrageous government conduct. Id. at 431. Then, in

12

United States v. Hampton, 425 U.S. 484 (1976), the Court

upheld Hampton's conviction, thereby limiting the defense.9

Although the conviction was upheld by a majority of five,

the concurrence of Justices Powell and Blackmun

demonstrated their hesitancy to foreclose the existence of a

due process challenge.

United States v. Nunez-Rios, 622 F.2d 1093 (2d Cir. 1980)

teaches that the defense of outrageous government conduct

is based on an alleged defect in the institution of the

prosecution itself and, as a consequence, is covered by the

provisions of Fed. R. Crim. P. 12(b) which requires that a

defendant raise in a pretrial motion: (1) defenses and

objections based on defects in the institution of the

prosecution; or (2) defenses and objections based on defects

in the indictment or information. Since Nunez-Rios did not

raise the issue of outrageous government conduct prior to

trial, the court held he had waived the right to assert the

defense on appeal. Id. at 1099. It is well established that

the issue of outrageous government conduct is for the

court, and not the jury, to resolve. Id. at 1098. See also

United States v. Nolan-Cooper, 155 F.3d 221, 234 (3d Cir.

1998). As a consequence, the necessity for the pretrial

motion to dismiss is obvious unless the evidence

supporting the claim of outrageous government conduct is

not known to the defendant prior to trial.

This Circuit addressed failure to plead the defense in

United States v. Gonzales, 927 F.2d 139 (3d Cir. 1991). In

that case, a drug transaction was initiated by an informant.

A government agent was the seller and the defendant was

a buyer. After his conviction, defendant argued that the

contingency fee arrangement between the informant and

the government constituted outrageous governmental

conduct. The Court examined the procedural requirement

outlined in Nunez-Rios, supra, but declined to apply a

procedural bar under the facts of that case because defense

counsel did not receive relevant information until the eve of

_________________________________________________________________

9. In Hampton, a government informant supplied the defendant with the

heroin he sold to an undercover government agent. The defendant stated

that the government's conduct of being both the supplier and buyer

violated his due process rights.

13

trial, making compliance with the procedural requirement

virtually impossible. The Court then evaluated the case

based upon a plain error standard and determined that the

conduct was not outrageous.10

Strube did not raise the defense of outrageous

government conduct in a pretrial motion, and he has

provided no good explanation for failing to do so. Unlike the

defendant in Gonzales, Strube did not discover facts about

government involvement shortly before his trial. Rather,

Strube's main defense at trial was that he was authorized

by a government agent to commit his illegal actions.

Therefore, Strube was always aware of the facts upon which

he now claims this defense. Since Strube offers no reason

for his failure to raise the defense at trial, the Court need

not make an exception to his waiver. See, United States v.

Coppola, 526 F.2d 764, 773 (10th Cir. 1975) (refusing to

grant an exception to waiver on appeal because the

defendant had two years to raise the defense, he failed to

demonstrate good cause for non-compliance with Rule

12(b), and he failed to show any prejudice from the waiver).

Even if Strube had properly raised this defense, it would

fail. Strube claims his case parallels United States v. Twigg,

588 F.2d 373 (3d Cir. 1978), because the government

"created, staffed, directed and implemented a criminal

enterprise which would not have otherwise existed."

(Strube's Op. Br. at 36). In Twigg, the Court addressed

charges of drug production where the government provided

chemical components, glassware, expertise and a location.

Without that assistance, the defendants would not have

had the ability to produce the drug.11 Strube argues that,

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10. The informant in Gonzales had a contingency fee arrangement with

the government that was not fully disclosed until the Friday before a

Monday trial. The informant and the government had set up a "reverse

sting" and the defendant was convicted of drug charges.

11. Strube fails to recognize that, since Twigg, this Court has used

extreme caution in finding due process violations in undercover settings.

United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir.), cert. denied, 519

U.S. 1047 (1996). See also, United States v. Nolan-Cooper, 155 F.3d 221,

229-30 (3d Cir. 1998) (continuing to recognize the existence of the

defense but observing the hesitancy of the judiciary to uphold due

14

as in Twigg, the government created the crime through its

agents, Pitt, Bowers and Mohle.

Assuming, arguendo, that Pitt was an agent of Customs

acting with its authority, Strube's defense would still fail.

There are significant factual differences between the cases

Strube cites and his case. In previous cases, courts have

determined that, in order for the claim of outrageous

government conduct to succeed, a government agent has to

initiate the criminal conduct with the goal of obtaining a

conviction and must draw the defendant into the illegal

activity to bring about that goal. See, United States v. West,

511 F.2d 1083 (3d Cir. 1975) (reversing conviction because

agent contacted defendant, who had no criminal record,

and supplied him with drugs defendant sold to another

agent);12 Twigg, supra (reversing conviction because

informant contacted defendants and initiated drug

production to get them convicted); Nolan-Cooper, supra

(emphasizing defendant's ongoing involvement in criminal

activity before agent approached her); United States v.

Gardner, 658 F. Supp. 1573 (W.D. Pa. 1987) (reversing

conviction because informant pursued defendant even after

defendant refused to find cocaine for him and tried to give

informant's money back).13 In this case, various Colombian

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process violation claims); United States v. Gambino, 788 F.2d 938, 945

n.6 (3d Cir.), cert. denied, 479 U.S. 825 (1986) (same). See also, United

States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106

(1982); United States v. Beverly, 723 F.2d 11 (3d Cir. 1983); United

States v. DeRewal, 10 F.3d 100 (3d Cir. 1993), cert. denied, 511 U.S.

1033 (1994) (all calling Twigg into doubt).

12. Called into doubt by United States v. Beverly, 723 F.2d 11,12 (3d Cir.

1983).

13. See also, Greene v. United States, 454 F.2d 783 (9th Cir. 1971)

(reversing bootleggers' convictions because they had ceased criminal

activity until an agent contacted them and provided supplies for

production); United States v. Batres-Santolino, 521 F. Supp. 744 (N.D.

Cal. 1981) (reversing conviction because informant induced defendants

into cocaine deal so his DEA friends could arrest them; defendants

lacked prior criminal involvement and wanted to back out); United States

v. Mosely, 965 F.2d 906 (10th Cir. 1992) (upholding conviction even

though seller was a government agent); United States v. Pedraza, 27 F.3d

1515 (10th Cir.) (upholding the conviction because defendants originally

contacted the undercover agent rather than being induced into criminal

activity), cert. denied, 513 U.S. 941 (1994).

15

drug cartels were the target for criminal prosecution. So

while this operation was intended to secure a conviction, it

was not the conviction of Strube. The defense of outrageous

government conduct is not applicable.

Even if the operation had been orchestrated to convict

Strube, the conduct would still not rise to the level of

violating Strube's right to due process. To meet that

standard, the challenged conduct must be shocking,

outrageous, and clearly intolerable. Mosely, 965 F.2d at

910. It must violate our sense of fundamental fairness or

shock the universal sense of justice. Russell, 411 U.S. at

432. There is nothing so shocking here.

In sum, Strube waived the issue of outrageous

government conduct by failing to move to dismiss prior to

trial. In any event, the claim of outrageous government

conduct is totally lacking in merit.

D. THE POST-CONVICTION CHALLENGE TO THE LACK

OF VENUE

Both Pitt and Strube argue that the government failed to

meet its burden of proving the venue of the alleged offenses.

Neither defendant challenged the absence of venue until

after their convictions. The government asserts that the

proof established venue. We need not address the issue of

venue in this case given the time of the initial objection.

United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999)14

is dispositive in its holding that the issue of improper

venue, at the very latest, must be raised in every possible

scenario before the jury reaches its verdict.

E. ADMISSION OF TAPE RECORDINGS BY STRUBE

ALLEGEDLY RELATED TO SUBSEQUENT UNCHARGED

NARCOTICS TRANSACTIONS

Over objection, the district court permitted the

government to introduce the May 22, 1995 recorded

conversation between Strube and George Morales, a

government informant. The conversation was nine months

after the intercepted third shipment of cocaine. 15 It is

_________________________________________________________________

14. A petition for certiorari was filed on June 4, 1999 (No. 98-9669).

15. A transcript of the audio tape is found in the Supplemental

Appendix. (S.A. at 12-18).

16

apparent from a reading of the conversation that the jury

could find that Strube is discussing cocaine and, by

inference, his involvement in the first shipment of 150

kilograms of cocaine. The district court found the statement

admissible against the background of the defense anchored

in public authority. To the extent the statements of Strube

alluded to subsequent cocaine transactions, they were

admissible under the teachings of Fed. R. Evid. 404(b) on

the issue of intention. We find no error.

F. SUFFICIENCY OF EVIDENCE OF CONSPIRACY TO

LAUNDER DRUG TRAFFICKING PROCEEDS

United States v. Reed, 77 F.3d 139, 142 (6th Cir.), cert.

denied, 517 U.S. 1246 (1996), teaches that mere

transportation of drug proceeds is insufficient proof of a

violation of 18 U.S.C. SS 1956 (a)(1)(A)(i) and (a)(2) for

laundering drug trafficking proceeds. However, the evidence

viewed in a light most favorable to the government

demonstrates that in excess of $1 million in drug trafficking

proceeds was collected in New York and transported, either

to Colombia, South America or to Pennsylvania. The

proceeds were used by both Pitt and Strube to pay

individuals like Wallace Pitt and others for their assistance

in flying and driving the cocaine across the country. The

monies were also used to pay the credit card bills of Pitt

which included travel charges related to his drug trafficking

activities. We find the claim of insufficient evidence as to

the laundering of the drug trafficking proceeds to be

without merit.

G. DENIAL OF STRUBE'S MOTION FOR A MISTRIAL

At closing argument, in response to a defense claim that

the government had strong-armed its witness, Wallace Pitt,

into a guilty plea, the government countered with the

following statement:

I will be brief. There has been a lot of speculation as to

why some people are here and some aren't. I could

spend a whole lot of time explaining to you all of that,

but it's not important. Because what the Judge is going

to instruct you is you have to consider whether these

men did these acts, not why or what happened to

everybody else.

17

But you do know some of that. I think it has been

slightly misportrayed to you. Wally Pitt wasn't beaten

into submission. Wally Pitt is a man. He admitted that

he did something wrong. He realized after the fact that

when you take 150 kilos across the country even

though your brother lied to you -- [Defense objection].

(J.A. at 1357).

Strube's counsel moved for a mistrial on the basis that

this statement by the government constituted an

impermissible reference to the fact that Strube had not

testified.

We find no error in the denial of the motion. Wefind the

statement to come within the "invited reply" doctrine

enunciated in United States v. Young, 470 U.S. 1, 11

(1985). In any event, the district court gave a curative

instruction.16

_________________________________________________________________

16. The district court's jury charge included the following instruction:

If you find that any government witness was an accomplice to the

commission of the crimes involved in this indictment, you should

consider such testimony with greater caution than that of a witness

who is not an accomplice.

You should also consider the extent to which such testimony may

have been influenced by the hope or expectation of favorable

treatment from law enforcement authorities.

Now you have heard testimony from government witnesses who

have pled guilty to charges arising out of the same facts in this

case.

You are instructed that you are to draw no conclusions or inference

of any kind about the guilt of these defendants on trial from the

fact

that a prosecution witness pled guilty to similar charges.

That witness's decision to plead guilty was a personal decision

about his own guilt. It may not be used by you in any way as

evidence against or unfavorable to the defendants on trial here.

By that very fact, ladies and gentlemen, you may not draw any

adverse inference to any defendant in this case who has not

testified.

Mr. Strube did not testify in this case. A defendant in a criminal

case has the absolute right under our constitution not to testify.

The

fact that defendant Strube did not testify must not be discussed or

considered by you in any way when deliberating or in arriving at

your verdict. No inference of any kind may be drawn from the fact

that Mr. Strube decided to exercise his privilege under the

constitution not to testify.

18

H. THE TWO-LEVEL ENHANCEMENT OF STRUBE'S

OFFENSE LEVEL FOR POSSESSION OF A FIREARM

The district court found the total offense level for Strube

to be 41 with a criminal history of III providing for a

sentencing range of 360 months to life. Strube received a

sentence of 360 months in contrast to the life sentence

imposed on Pitt. The total offense level included a two level

enhancement for the .357 caliber revolver displayed to

Wallace Pitt.

The district court addressed the issue of weapon

enhancement at the sentencing hearing as follows:

Good morning. The Court will address the objections

that have been filed. The first objection was to the

enhancement for firearms possessions.

I am fully aware of the defendant's argument. As I

review the evidence, there was a delivery of cocaine at

the residence of the defendant, and that Wallace Pitt

was present at Mr. Strube's residence and was escorted

through the house and shown the firearms.

As I recall, was not Wallace Pitt a collector himself?

[By counsel]: I believe that he had a firearms license,

yes, Your Honor.

[The Court]: But in any event, he recalled only a few of

those being antique items or collector items and that

the balance were operable weapons. And I believe that

under the U.S. Sentencing Guidelines that those facts

support an enhancement.

(J.A. at 1520).

The district judge permitted counsel to make their

respective arguments regarding the objection to thefirearm

enhancement and then concluded:

. . . With regard to the objections, I believe that there

is sufficient argument made by the defendants as to

the role in the offense and will delete that two point

enhancement.

In all other respects, the Court adopts the factual

findings and the guideline application as set forth in

19

the first and second addendum to the presentence

report in support of the enhancements.

(J.A. at 1543). The Presentence Report, describing the

offense conduct, stated that Wallace Pitt, half-brother of

Strube's co-defendant, Richard Pitt, drove a quantity of

cocaine from Utah to Strube's home in Pennsylvania, where

he met up with Richard Pitt, who had flown another

quantity of cocaine from Utah to Pennsylvania. The report

continues:

Wallace Pitt told investigators that Mr. Strube took the

bags of cocaine from his car and later took him on a

tour of his house. Wallace Pitt said the defendant

[Strube] showed him several firearms including a .357

caliber revolver. While at the defendant's house,

Richard Pitt paid Wallace Pitt $5,000.

"We review the district court's factual findings in relation

to sentencing issues for clear error." United States v. Felton,

55 F.3d 861, 864 (3d Cir. 1995) (citing United States v.

Fields, 39 F.3d 439, 447 (3d Cir. 1994)); United States v.

Miele, 989 F.2d 659, 663 (3d Cir. 1993); United States v.

Belletiere, 971 F.2d 961, 964 (3d Cir. 1992))."Our review

with respect to the court's application and interpretation of

the Sentencing Guidelines is plenary." Felton, 55 F.3d at

864 (citing cases).

Application note 3 to USSG S2D1.1 states that

. . . The enhancement for weapon possession reflects

the increased danger of violence when drug traffickers

possess weapons. The adjustment should be applied if

the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense. . . .

In United States v. Price, 13 F.3d 711, 734 (3d Cir.), cert.

denied, 514 U.S. 1023 (1995), this Court noted that "it was

the risk of violence caused by the combination offirearms

and drugs that merited an increase in sentence."

Although the district court here made no actualfindings

on the record, the court's statements quoted above

implicitly recognize that the weapons shown to Wallace Pitt

were "connected with the offense" and were certainly

intended to indicate a potential for violence. It takes no

20

imagination whatsoever to conclude that Strube displayed

his weapons to Pitt, not so Pitt, the gun collector, could

admire them, but so Pitt, the drug courier, would clearly

understand that Strube was never to be crossed. As this

Court has concluded: "[the defendant's] `arsenal' created a

strong inference that he possessed these weapons in order

to further the drug transaction." United States v. Demes,

941 F.2d 220, 223 (3d Cir.), cert. denied, 502 U.S. 949

(1991).

We find no error in the enhancement for possession of a

weapon.

I. THE SUA SPONTE MOLDING OF THE JURY'S SPECIAL

FORFEITURE VERDICT

Count V of the Indictment sought the forfeiture of

property owned by Strube in Columbia, Pennsylvania and

also $1,081,400.00 in U.S. currency, pursuant to

provisions of 21 U.S.C. S 853(a) and 18 U.S.C.S 982(a)(1).

The jury returned a special verdict forfeiting $826,400.00

in U.S. currency from Pitt and an additional $255,000.00 in

currency from Strube along with the Strube residence.

Thereafter, the district court entered a judgment with joint

and several liability against both Pitt and Strube for the

total forfeited sum of $1,081,400.00. Strube challenges the

molding of the verdict as contrary to his right to have the

jury determine the issue and amount of forfeiture. The

government, building on the conviction of both Pitt and

Strube on Count IV, the money laundering count,

interprets the jury findings of the two sums of $826,400

and $255,000 as its determination that the entire sum the

government sought to forfeit, $1,081,400, was involved in

the money laundering offense and was therefore forfeitable

under a joint responsibility analysis.

Fed. R. Crim. P. 31(e) provides that a special verdict shall

be returned by the jury as to the extent of the interest or

property subject to forfeiture where the indictment alleges

such interest or property are subject to criminal forfeiture.

Strube contends that the district court erred in molding the

verdict to impose a forfeiture upon him in the sum of

$1,081,400 rather than the sum of $255,000 set forth in

the jury's verdict.

21

Congress has provided that, in imposing sentence on a

person convicted of, among other things, an offense in

violation of the money laundering statute, 18 U.S.C.S 1956,

a court "shall order that the person forfeit to the United

States any property . . . involved in such offense." 18 U.S.C.

S 982(a)(1). Pitt and Strube were both convicted as co-

conspirators under S 1956(h) (Count IV of the indictment).

We interpret S 982(a)(1) as imposing a rule of joint and

several liability in the case of a money laundering

conspiracy. The statute does not say that each conspirator

shall forfeit only such property involved in the offense

which is or has ever been in that conspirator's possession.

Rather, the statute recognizes that the amount of property

involved in a money laundering conspiracy cannot be

different for different conspirators.

In view of the above discussion, there is no need to reach

21 U.S.C. S 853(a)(1); however, it leads to the same

conclusion with respect to forfeiture of property involved in

drug-related crimes. Section 853(a)(1) provides for the

forfeiture of "any property constituting, or derived from, any

proceeds the person obtained, directly or indirectly, as a

result of [a qualifying drug offense]." 17 In imposing sentence

on such person, the court "shall order[ ] . . . that the person

forfeit to the United States all property described in this

subsection." 21 U.S.C. S 853(a)(1) (emphasis added). Like

18 U.S.C. S 982(a)(1), 21 U.S.C. S 853(a)(1) imposes joint

and several liability with respect to forfeiture. See United

States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996)

(concluding that S 853(a)(1) "is not limited to property that

the defendant acquired individually but includes all

property that the defendant derived indirectly from those

who acted in concert with him in furthering the criminal

enterprise"), cert. denied, 520 U.S. 1281 (1997).18

_________________________________________________________________

17. Included among such offenses are those set forth in 21 U.S.C. SS 841

and 846. Section 841(a)(1) makes it unlawful for any person to

knowingly or intentionally distribute a controlled substance. Section 846

makes it unlawful for a person to conspire to distribute a controlled

substance. Pitt and Strube were both convicted of such offenses.

18. McHan also points to cases involving the RICO forfeiture statute,

where "courts have unanimously concluded that conspirators are jointly

and severally liable for amounts received pursuant to their illicit

agreement." McHan, 101 F.3d at 1043 (citing cases).

22

Thus, whether under 18 U.S.C. S 982(a)(1) or 21 U.S.C.

S 853(a)(1), Pitt and Strube were liable in forfeiture for the

full amount of cash received by the conspiracy. The jury's

special verdicts can be harmonized by interpreting them to

refer to the amount that each defendant personally

received. It was, therefore, proper for the trial judge to

harmonize the verdicts in this manner, to apply the strict

rule of joint and several liability that governs under both

forfeiture statutes, and to enter an appropriate judgment

based on this understanding.

IV. CONCLUSION

Based on the foregoing analysis, the convictions and

sentences of both appellants, Richard L. Pitt and William

Michael Strube, are AFFIRMED.19

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

19. We reject without discussion the claim that the district court erred

in refusing the requests of the defendants to play, in their entirety, 25

taped conversations between Pitt and the Customs Agents Bowers and

Mohle, and the claim that the government failed to comply with both the

Jencks Act and Brady v. Maryland, 373 U.S. 83 (1963), finding both

claims to be without merit.

23