United States v. Ralph Dennis

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 14-3561

__________

UNITED STATES OF AMERICA

v.

RALPH DENNIS,

Appellant

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. No. 1-12-cr-00734-001)

District Judge: Honorable Joseph E. Irenas

Argued November 19, 2015

BEFORE: AMBRO, HARDIMAN, and

NYGAARD, Circuit Judges

(Filed: June 24, 2016)

Lawrence S. Lustberg, Esq.

Jillian T. Stein, Esq.

Benjamin Z. Yaster, Esq. [Argued]

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Appellant

Mark E. Coyne, Esq. [Argued]

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Glenn J. Moramarco, Esq.

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street

Camden, NJ 08101

Counsel for Appellee

__________

OPINION

__________

NYGAARD, Circuit Judge.

I.

Ralph Dennis seeks a new trial, asserting that the

District Court erred by denying his request to instruct the jury

on an entrapment defense and by denying his motion for

dismissal asserting outrageous prosecution. He also contends

2

that his sentence violates the Eighth Amendment of the

United States Constitution. Dennis was convicted of

conspiracy to rob a narcotics “stash house,” pursuant to 18

U.S.C. § 1951(a), 21 U.S.C. §841(a)(1), and 21 U.S.C.

§841(b)(1)(A). He was also convicted of carrying a firearm

during the commission of the crime, pursuant to 18 U.S.C. §

924(c)(1)(A)(i). The District Court sentenced Dennis to 180

months’ imprisonment, the statutory minimum.

Dennis maintains that Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) agents induced him, through

a friend, to participate in a reverse sting that was designed to

incriminate him and co-conspirators.1 We agree that the

District Court should have given an entrapment instruction on

the robbery and gun possession charges. Therefore, we will

vacate the judgment of conviction and sentence as to these

charges and remand for a new trial. The judgment is affirmed

on the remaining drug charge.

II.2

1

Dennis was tried with Terrance Hardee who was convicted

for his role in the “stash house” robbery. The United States

separately appealed Hardee’s 92-month sentence, Hardee did

not appeal or cross-appeal. We remanded for resentencing in

that case for reasons that do not change our analysis here.

Another conspirator, John Mitchell, pleaded guilty and

received a 78-month sentence.

2

For purposes of our review of Dennis’ appeal of the District

Court’s denial of his request for an entrapment instruction, we

will resolve all factual conflicts in favor of Dennis “no matter

how improbable we may find the defense version of the

3

In June 2012, ATF agents in Camden, New Jersey met

with Kevin Burk, a convicted felon facing forgery charges

who had been cooperating with local law enforcement as a

confidential informant. The agents were investigating a string

of robberies in Southern New Jersey and Philadelphia

County, Pennsylvania. Upon being questioned about

associates who were involved in robberies or violent crimes,

Burk responded that Dennis had spoken of conducting home

invasions and other robberies. The ATF agents were unaware

of Dennis prior to this. Burk added that Dennis recently had

been detained at the Camden County Jail.

The agents confirmed Dennis’ detention and then

conducted a criminal record search. They discovered that

Dennis had several felony convictions for possession with

intent to distribute small amounts of crack cocaine between

1996 and 1998, burglary of a motor bike in 2003, and for

possessing with intent to sell multiple pounds of marijuana in

2011. Burk then told agents that Dennis had previously

requested his help in robbing a check-cashing operation, but

he had declined. Dennis later testified that this was false. J.A.

1040. 3

facts.” United States v. Watson, 489 F.2d 504, 507 (3d Cir.

1973).

3

Dennis testified that it was Burk who had requested Dennis’

help in these robberies. Dennis testified that he declined three

prior invitations. Burk’s brother later corroborated one of the

incidents that Dennis alleged with eye-witness testimony. For

purposes of our review, we accept Dennis’ version of these

interactions.

4

ATF agents instructed Burk to ask Dennis for his help,

supplying Burk with a fictional back-story: he was to tell

Dennis that he needed his help to carry out a robbery. Dennis

and Burk were friends, and each was acquainted with the

other’s family members. J.A. 1002-03. Together they

engaged in small quantity cocaine purchases and sales.

Additionally, after Burk served a sentence for his drug

activities, he and Dennis became involved in pound-quantity

marijuana sales, traveling to Texas together on more than one

occasion to purchase a supply of marijuana. J.A. 1009.

Dennis was arrested for this activity. He testified that, after

this, he attempted to break free of a life of crime, but admits

he still purchased small quantities of cocaine for Burk.

Eventually, Dennis violated parole and was incarcerated for

60 days in the Camden County jail.

Burk tried, on a number of occasions, to enlist Dennis’

help in various robbery schemes. Dennis said that, three

times, Burk asked for his help to carry out bank robberies.

He declined each time. J.A. 1017-21. On Burk’s third

attempt, Dennis recalls that Burk told him he already had the

guns and the scanner needed for the job. J.A. 1022. Dennis

says that he refused to help Burk. Two weeks later, Burk

approached him to ask for his help in robbing a stash house.

This time, Burk told him that the job was necessary to help

out his mother who had cancer. Burk told him that “Rock,” a

disgruntled drug courier for a Mexican drug cartel, was the

point person for the job. Burk said that the robbery would

yield 30 to 40 kilograms of cocaine with a street-value of $2

million. J.A. 1027-28. Dennis agreed. This was the

beginning of the ATF’s reverse sting operation.

5

During the discussion between Burk and Dennis about

the stash house robbery, John Mitchell (an acquaintance of

Dennis) drove by. He questioned Dennis about his meeting

with Burk. J.A. 1029. Later, Dennis told Mitchell about the

plan, asked him to help, and introduced him to Burk.

Mitchell agreed to assist.4 Dennis portrayed Mitchell as

someone who “robbed . . . young bulls in the neighborhood”

and as someone who often carried a gun. J.A. 1055.

Burk set up the first meeting between the ATF agent,

Dennis and Mitchell for June 21, 2012. Before the meeting,

Burk told Dennis and Mitchell that they needed to impress

Rock because he was “the real thing.” J.A. 1029. Burk asked

them to “play the role” to impress Rock so that they could get

the job. J.A. 1030. Dennis said that he and Mitchell

complied.

The ATF agent posing as Rock (Greg Sheridan) met

with Burk, Dennis, and Mitchell in Pennsauken, New Jersey,

and provided more details about the job.5 Rock explained

that he was seeking revenge because the cartel refused to loan

him money to help his ailing mother. Rock went on to

explain his role as courier, and he shared his observations of

how the cartel’s stash houses operated. Dennis and Mitchell

both asked questions on details about how the stash house

4

Mitchell testified that Dennis met him at a bar and told him

about Burk’s plan to rob a stash house.

5

Most meetings were recorded with audio and video. The

narrative of these meetings in this opinion is drawn both from

trial testimony and from the transcript of the recording shown

to jury.

6

would be guarded. Dennis expressed concern about

retribution directed at Rock, and indicated that the plan had to

insulate Rock from any suspicion of being involved.

J.A.1323-24. Rock also stressed that they had to have a well-

executed plan because the stakes were high. J.A. 1311-12.

Dennis initially stated that they would have to put the guards

down, and that they would “fold” when he put a gun in the

mouth of one of the guards. J.A. 1032, 1312. Later in the

meeting he suggested they only subdue and tie up the guards.

J.A. 1035. Dennis also told Rock that they would bring a .40

caliber gun and a .357 magnum gun. Nonetheless, he testified

that he felt he was in over his head, though he did not show

this to Rock. J.A. 1035. He said that he was saying these

things solely to impress Rock, and to probe his intent. J.A.

1033, 1035, 1037. Dennis testified that he did not own a gun.

He last had a gun when he was fifteen years old. He

explained that the reason for this was that he “wasn’t trying to

go that route, like whatsoever, as far as hurting somebody or

somebody hurting me or anything. So, I just got rid of [the

gun].” J.A. 1013-14.

Rock offered Mitchell and Dennis a chance to back

out. Both declined this opportunity. Burk said that they

needed another meeting to figure out whether Rock was law

enforcement. J.A. 1039. However, he also told Dennis that

Rock had been a good friend ten years earlier and that he was

“the real deal.” J.A. 1041. Dennis suggested that they

needed another man to be part of this plan to have someone

who was physically intimidating enough to handle the guards.

J.A.1041-42. This man was Terrance Hardee.

During two later meetings, on June 27, 2012 and on

July 10, 2012, the group discussed their plan. Rock again

7

expressed his feeling of betrayal toward the cartel for its

refusal to help him. He told the group that there were usually

between 15 and 20 kilograms of cocaine at the stash house,

and that it was guarded by two individuals, one being armed.

The conversation moved on to how they would be

compensated for the job. Rock cautioned them that they

would need to repackage the cocaine they received from the

heist to avoid being tracked by the cartel. Dennis responded

that he had already thought of that, and planned to split the

kilogram packages of cocaine and re-wrap them. J.A. 466-67.

As for the robbery, Rock told the group that he

received only general information one day in advance about

the stash house location. He suggested that Mitchell could

hide in the back of his SUV as they approached the stash

house and characterized the proposed robbery as relatively

easy because the stash house guards were “slippin a little bit.”

J.A. 1366. Dennis suggested that they would use stun guns to

subdue the guards. During the meeting, Mitchell appeared to

assume that Dennis would accompany him into the stash

house, but Dennis made it clear that he would stay parked

outside, and send in someone who was bigger and more

threatening. He told the group he would be listening on a cell

phone. J.A. 1375-77.

Mitchell requested a third meeting to get clarity on the

specific roles each one would play in the robbery and how

they would approach the stash house. Burk called Rock to set

it up. At that July 10, 2012 meeting, they talked through how

Rock, Mitchell, and a third man (Hardee) would enter.

Mitchell and Dennis agreed that those who entered the stash

house behind Rock should present themselves as DEA agents

and subdue with stun guns and zip ties both the armed guard

8

at the door and the unarmed guard watching over the cocaine

bricks in the kitchen. Dennis stated that their objective was to

get in and out quickly with “nobody gettin’ hurt.” J.A. 1400.

He also suggested that he take Rock’s truck after the robbery

to strengthen the perception that Rock was not involved in it.

Dennis testified that he was very nervous at this point and

wrestled with whether he wished to follow through on the job.

J.A. 1057.

After the July 10, 2012 meeting, Burk reminded

Dennis that he told the group he had two guns he would

bring. J.A. 1063. Dennis questioned whether another gun

was needed, since Hardee was going to go into the stash

house with a stun gun. Burk pressed that it was necessary for

Dennis to have a gun in his role as lookout. J.A. 1065. The

next day, Burk stopped by again and gave Dennis a red bag

containing a gun. He asked Dennis to keep the bag at his

residence. J.A. 1066. Dennis testified that this was one of

the guns found when they were arrested. J.A. 1067. A

second gun found at that time belonged to Mitchell.

Dennis received a message on July 15, 2012, that the

robbery would take place on the next day. Dennis and

Mitchell purchased zip ties but did not purchase DEA shirts

as planned. J.A. 609. Dennis, Mitchell, and Hardee met that

evening to discuss the plans for the robbery. The next

morning, the group departed for Cherry Hill, New Jersey, in

Burk’s vehicle. At that point, they were in possession of two

guns, one stun gun, gloves, and zip ties. Once in Cherry Hill,

the group traveled in two cars to a storage facility to prepare

for and rehearse the robbery. Once there, Rock told the group

that they could leave his share of the cocaine in the storage

unit. He gave the gate code to enter the storage facility to

Mitchell. Rock talked through the details of how the stash

9

house is set up. The group then walked through the robbery,

rehearsing how it would unfold. After they completed this

walk-through, ATF agents rushed in on the group and

arrested Dennis, Mitchell, and Hardee.

Mitchell pleaded guilty. Hardee and Dennis were tried

together. Dennis first moved to have the indictment

dismissed on the basis of outrageous prosecution. The

District Court ruled that it could not “find anything inherently

outrageous or unfair or something that shocks [the]

conscience.” J.A. 42. The District Court left open, however,

the possibility of revisiting the motion if evidence at trial

warranted. It never did so.

Dennis then proceeded with an entrapment defense.

Dennis testified on his own behalf and called two other

witnesses: Dr. Carol Armstrong and Seth Lawrenson. Dr.

Armstrong, a neuropsychologist who examined Dennis,

concluded that he suffers from neurocognitive impairments,

with an IQ score of 74. She testified that Dennis was

impaired in “[h]is ability to correct his thinking, his ability to

reason or . . . to infer what the consequences are of a thought

that he has.” J.A. 890. She responded in the affirmative

when asked: “Do you believe that Ralph Dennis was more

susceptible to influence than otherwise healthy individuals

would be in this case?” J.A. 889. Lawrenson, Burk’s

brother, testified to witnessing, on one occasion, Dennis

decline Burk’s request to help him rob a bank.

After the defense rested, the District Court considered

Dennis’ request for a jury charge on entrapment. The District

Court concluded that Dennis’ own testimony established a

predilection to commit crimes with Burk as demonstrated by

10

his long association with him and the number of crimes the

two committed together. It also ruled that the record provided

no evidence that Dennis was hesitant to join in the

conspiracy. J.A. 99-100. The District Court said that any

inference drawn from his refusal to participate in previous

crimes with Burk could “cut both ways,” and could show that

Dennis was fully capable of choosing what criminal activity

he wanted to engage in. J.A. 102. Moreover, the District

Court ruled that his words and actions showed a ready

willingness to become involved. This conclusion was

strengthened by his recruiting of Hardee to help carry out the

robbery. J.A. 97. Finally, Dennis’ resolve to participate was

demonstrated by his refusal to sever himself from the group

after the ATF undercover agent explicitly gave him an

opportunity to leave. In the District Court’s assessment, all of

this evidence was “overwhelming” compared to the “small”

evidence Dennis proffered in his testimony: stating that he

was a reluctant participant, that he had not owned a gun, and

that the use of Burk’s mother in persuading him to join the

conspiracy weighed heavily on his decision. J.A. 99.

III.

Entrapment

Dennis first argues that he is entitled to a new trial

because the District Court erred by denying his request for a

jury instruction on entrapment. We give plenary review to a

District Court’s denial of a motion for a jury charge of

entrapment. United States v. Fedroff, 874 F.2d 178, 182 (3d

Cir. 1989). “Entrapment occurs when a defendant who was

not predisposed to commit the crime does so as a result of the

government’s inducement.” United States v. Jannotti, 673

F.2d 578, 597 (3d Cir.) (en banc) (“Jannotti I ”), cert. denied,

11

457 U.S. 1106 (1982). There are two elements of proof:

inducement by the government to commit the crime, and the

defendant’s lack of predisposition to commit the crime.

United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). A

defendant who requests the District Court to instruct the jury

on an entrapment defense has a “burden of production” with

regard to both elements. United States v. El-Gawli, 837 F.2d

142, 145 (3d Cir. 1988).

The defendant must first produce enough evidence to

show inducement by the government. A “mere solicitation”

or request by the government to participate in a criminal

activity, without more, is not inducement. Wright, 921 F.2d

at 45. Likewise, merely opening an opportunity for a crime is

insufficient. Mathews v. United States, 485 U.S. 58, 66

(1988). Rather, the defendant must show that law

enforcement engaged in conduct that takes the form of

‘“persuasion, fraudulent representation, threats, coercive

tactics, harassment, promises of reward or pleas based on

need, sympathy or friendship.’” Wright, 921 F.2d. at 45

(quoting Fedroff, 874 F.2d at 184).

The District Court noted that this was a reverse sting

operation, and it appeared to agree with Dennis that the

inducement prong of the analysis had thus been met. We too

are convinced that the first prong of the analysis has been

met, but we are not so quick to conclude that it is simply

because it was a reverse sting. Rather, there were a number

of elements of this particular operation that lead us to

conclude that Dennis met his burden to raise a question about

inducement.

12

A major factor in our conclusion is the central role that

Burk, the ATF’s confidential informant, played in getting

Dennis to participate in the scheme. Dennis had no known

connections to the crimes the ATF was investigating at that

time and was only targeted after Burk produced Dennis’ name

in response to the ATF’s general inquiry about people he

knew who were involved in robberies. Moreover, Burk’s

personal relationship to Dennis contributed to the operation

by allowing Burk to appeal to Dennis’ sympathies based on

the story of Burk’s sick mother whom Dennis had met on a

number of occasions.6 We also note that Burk: recruited

6

The Government argues that Dennis never explicitly said

that Burk’s friendship, nor the story of Burk’s ailing mother,

influenced his decision. We disagree. On cross examination,

Dennis was asked if anything other than personal risks and

rewards motivated his involvement in the robbery. J.A. 1138.

He responded that there was more to why he agreed to join

the scheme. Id. The prosecutor immediately followed up by

asking why he never said anything along the lines of “gee,

[Burk], this is really gonna help your mother.” Id. Dennis

responded that he had done so, but his statements were not

caught on the ATF’s recordings and that many of his

conversations with Burk took place outside the presence of

ATF agents and their equipment. J.A. 1138–39. This

exchange indicates that Burk’s plea affected Dennis’ decision

to join the scheme. And this is unsurprising—a friend whom

he had known for years asked for help to pay for his mother’s

cancer treatment. While it is true that Dennis never uttered

the words that “friendship motivated his participation” in the

stash house scheme, we find a plea of friendship to lie at the

basis of Burk’s plea for help. Indeed, the entirety of Burk and

Dennis’ conversation seems predicated on friendship. This

13

Dennis, set up the first meeting with the ATF agent, drove

Dennis to the meeting, and asked that Dennis “play the role”

of a seasoned robber.7

Each of Burk’s assists, by themselves, would not

necessarily be enough to tip the scales to constitute

inducement. However, collectively, they carry great weight.

When this is added to the substantial financial payoff that was

pitched to Dennis ($1.5 million to $2 million), we are

convinced that the Government’s efforts properly can be

classified as inducement. The Government’s action exceeded

a situation in which it merely opened up an opportunity for

committing a crime.8 Here, the Government targeted an

view is only strengthened by the fact that we are required to

interpret the record in a manner favorable to Dennis.

Additionally, Dennis’ testimony about all of Burk’s appeals

to him to assist in various schemes is consistent with the

proposition that their friendship played a role. See J.A.

1017- 22 (describing the nature of Burk’s unsuccessful

appeals for his help in robbery schemes); J.A. 1022- 27

(describing the nature of Burk’s successful appeal for help

with the stash house scheme).

7

Later, Burk convinced Dennis of the need for Dennis to

have a gun during the robbery, and then he supplied the gun

to Dennis. This evidence, though occurring well after Dennis

was induced, is relevant to the charge for gun possession.

8

The Government’s actions “exceeded the typical sting in

which the government merely offers an ordinary opportunity

to commit a crime, without more.” United States v. Blitch,

773 F.3d 837, 845 (7th Cir. 2014), as amended on denial of

reh’g and reh’g en banc (Jan. 27, 2015), cert. denied sub

14

individual previously unknown to it and, with the help and

persuasion of an informant who was a friend of the target,

actively led him into the commission of a crime. This

satisfies Dennis’ burden on inducement.

We next examine whether there was sufficient

evidence to raise a reasonable doubt about Dennis’

predisposition to commit the crime. United States v. Jannotti,

729 F.2d 213, 225 (3d Cir. 1984) (“Jannotti II”); United

States v. Bocra, 623 F.2d 281, 285 (3d Cir.), cert. denied, 449

U.S. 875 (1980) (“[K]ey to the successful establishment of an

entrapment defense is proof that the defendant was not

predisposed to commit the crime and that the criminal intent

in fact originated with the Government.”). “The basic

question in an alleged entrapment case is whether the accused

was ready and willing to commit the crime if any opportunity

should be presented, or whether a person not otherwise

disposed to wrongdoing was corrupted by some overreaching

or special inducement, often amounting to reprehensible

conduct.” Watson, 489 F.2d at 509. “In general,

predisposition may be defined as the defendant’s inclination

to engage in the crime for which he was charged, measured

before his initial exposure to government agents.” Fedroff,

874 F.2d at 182 (citations and footnote omitted).

Dennis argues that the record contained more than

sufficient evidence to meet his burden of showing that he

lacked a predisposition to commit this crime. He focuses on

nom. Carwell v. United States, 135 S. Ct. 2371 (2015)

(quoting United States v. Mayfield, 771 F.3d 417, 434 (7th

Cir. 2014) (en banc)).

15

the following facts: the absence of robbery or violent crimes

in his criminal history; his partially corroborated testimony of

turning away three prior opportunities to join Burk in

robberies; his disavowal of violence on the stand; his

testimony that he has not owned a gun in many years; and the

expert testimony of his vulnerability to being persuaded due

to his low IQ.

Even with all of this evidence, the District Court still

concluded that he did not produce enough evidence to ground

a jury instruction on entrapment, stating that there is “almost

no evidence of an absence of predilection and overwhelming

evidence of a predisposition or predilection to commit the

crime.” J.A. 101. The District Court was convinced that the

recordings of the meetings between Dennis and the others

showed him to be an “eager participant” despite testimony

that Dennis was told to “play the role” to impress Rock. J.A.

100, 1030. The District Court regarded Dennis’ long

association with Burk in previous drug crimes as strong

evidence of predilection. It also recognized that Dennis had,

on three previous occasions, declined to join Burk in robbery

plans. It acknowledged that a positive inference could be

drawn from this information, giving significance to Burk’s

use of an ailing mother as an important factor in Dennis’

decision to accept Burk’s solicitation in this case. However,

the District Court reasoned that this inference could “cut both

ways” and that the stronger inference from this testimony was

that Dennis felt free to accept or decline Burk’s solicitations

at will. J.A. 102.

Dennis says that the District Court erred by weighing

this evidence and by drawing inferences against him. He

goes on to assert that these defects in the District Court’s

16

deliberation of his motion for an entrapment instruction

pertain to all of the counts on which he was convicted since

the drug conviction was inextricably entwined with the

robbery conspiracy.

The Government suggests that the favorable review

standard that Dennis applies is proper only for motions

considered pretrial. Citing to Marino, it contends that, since

Dennis was permitted to present his evidence in support of an

entrapment defense, the District Court was permitted to weigh

the evidence to decide Dennis’ motion. United States v.

Marino, 868 F.2d 549, 554 (3d Cir. 1989). However, Marino

is distinguished because it was focused on the need for a

separate evidentiary hearing. It held that a separate hearing

was not necessary to rule on the entrapment motion because

all of the defendant’s evidence relevant to entrapment was

presented at trial, and it was insufficient to justify an

instruction. Id. The timing of the motion does not alter the

necessity of the District Court to refrain from invading the

province of the jury. Here, it was not for the District Court to

decide the evidence “cut both ways” and draw a conclusion

against Dennis. Similarly, it was impermissible for the Court

to credit the Government’s evidence when Dennis presented

evidence to the contrary. Therefore, we conclude that the

District Court did err by weighing evidence and by

improperly drawing inferences against Dennis on the robbery

and firearm charges. However, as we will explain further

below, there is no such error as to Dennis’ conviction on the

drug conspiracy charge.

The Government argues in the alternative that, even if

the District Court did commit such errors, Dennis is not

entitled to a new trial because the errors were harmless. It

17

notes that—in spite of the District Court’s denial of his

motion for an instruction—Dennis was still able to proffer all

of his evidence on entrapment. Therefore, even though the

District Court may have erred in its deliberation of evidence

supporting the motion, our harmless error review—like the

jury’s—encompasses the entire record. As a result, it asserts,

the District Court’s review of the entire record is ultimately

excusable because the jury was able to weigh all of the

evidence and it still convicted Dennis on the strength of the

evidence the Government presented.

“Unless the appellate court believes it highly probable

that the error did not affect the judgment, it should reverse.”

Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d

Cir. 1974); Jannotti II, 729 F.2d at 225. As the Government

acknowledges, if Dennis’ motion for an entrapment

instruction had been granted, “the government [would have]

had the entire burden of disproving entrapment beyond a

reasonable doubt.” El-Gawli, 837 F.2d at 146. Therefore,

although it is true that the jury was able to weigh all of the

evidence—including Dennis’ entrapment evidence—it did so

without considering whether the Government carried its

burden of proving beyond a reasonable doubt that it did not

entrap Dennis to commit the crimes of conspiracy to commit

robbery and gun possession. Given that we have already

ruled that Dennis presented sufficient evidence to create

reasonable doubt about inducement and his predisposition to

commit these crimes, we cannot conclude that it is highly

probable that the District Court’s error did not affect the

judgment as to these crimes.

Nonetheless, Dennis’ reliance on his criminal record to

make his case for a lack of predisposition for committing

18

robbery and possessing a gun does not help him show that he

was not predisposed to commit drug crimes. His history of

convictions for possession and distribution of cocaine and

marijuana contradicts Dennis’ assertion that he was not

predisposed to commit the crime of possessing and

distributing cocaine. Dennis’ attempt to distinguish his

record of dealing in small quantities of cocaine from the large

quantity of cocaine at issue here is unavailing. See, e.g.,

United States v. Blitch, 773 F.3d 837, 845 (7th Cir. 2014)

(finding that a prior conviction for delivering nine grams of

cocaine “demonstrate[d] that [the defendant] was predisposed

to join a drug trafficking conspiracy” that dealt in kilogram

quantities of cocaine), as amended on denial of reh’g and

reh’g en banc (Jan. 27, 2015), cert. denied sub nom. Carwell

v. United States, 135 S. Ct. 2371 (2015). Similarly, we are

not convinced that his marijuana conviction has little

relevance because this case involved cocaine—both involve

the distribution of large quantities of illegal drugs. See United

States v. Gambino, 788 F.2d 938, 945–46 (3d Cir. 1986)

(stating that evidence of trafficking cocaine was relevant for

determining whether the defendant was predisposed to

distribute heroin); United States v. Simtob, 901 F.23d 799,

807 (9th Cir. 1990) (“Where entrapment is in issue . . . prior

drug offenses [can be relevant] if the earlier conviction tends

to prove that defendant was engaged in illegal operations in

some way similar to those charged in the indictment, even if

the drugs involved may be different.”). Putting all of this

evidence together leads us to conclude Dennis had a

predisposition to distribute kilograms of cocaine.

Finally, we are not persuaded by Dennis’ suggestion

that the drug conviction should be reversed solely because it

is entwined with the robbery and firearm convictions. As we

19

have previously discussed, a defendant must produce

evidence that he lacked the predisposition to commit the

crime for which he is charged to receive an entrapment

instruction. The fact that a defendant is charged with multiple

counts arising from the same course of conduct does not

vitiate the burden to do so for each count for which the

defendant seeks an instruction. As the Eleventh Circuit Court

of Appeals persuasively reasoned when faced with a similar

question:

[E]ven if the counts charged in the

Indictment formed part of the

same course of conduct, and even

if [the defendant was] induced as

to all counts, there is still the

question of whether [he was]

predisposed to commit each of the

crimes at issue. Because of the

subjective, fact-intensive nature of

the predisposition inquiry, it may

well be that the facts of a given

case indicate that an individual

defendant is predisposed to

commit some crimes, but not

others.

United States v. Isnadin, 742 F.3d 1278, 1302 (11th Cir.

2014) (upholding an instruction that allowed a jury to

evaluate entrapment on a count by count basis); see also

United States v. Millet, 510 F.3d 668, 674–78 (7th Cir. 2007)

(upholding a district court’s decision to instruct the jury on

entrapment related to a gun charge, while refusing an

entrapment instruction pertaining to related drug charges), as

amended on denial of reh’g en banc (June 27, 2008). Here,

20

Dennis failed to show a lack of predisposition for his drug

conviction, but was successful in doing so for his conspiracy

to commit robbery and firearm possession convictions. Thus,

he was entitled to an entrapment instruction as to the latter,

but not the former. As each conviction exists independently;

so, too, must the justifications for an accompanying

entrapment instruction.

IV.

Outrageous Prosecution

Dennis contends not only that he is deserving of a new

trial, he also asserts that the indictment against him should be

dismissed on the basis of an outrageous prosecution that

violated his constitutional right to due process.9 The

evidentiary burden is exceedingly great, requiring the

defendant to show that the government essentially “created

the crime for the sole purpose of obtaining a conviction.”

United States v. Pitt, 193 F.3d 751, 759-60 (3d Cir. 1999).

Accordingly, dismissal under this circumstance is rare,

occurring only where the government’s conduct is “shocking,

outrageous, and clearly intolerable.” United States v. Nolan-

Cooper, 155 F.3d 221, 231 (3d Cir. 1998). This

constitutional claim “should be accepted by a court only to

‘curb the most intolerable government conduct.’” United

States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983) (quoting

Jannotti, 673 F.2d at 608).

9

We review the District Court’s factual findings for clear

error, and give plenary review to its legal conclusions.

United States v. Christie, 624 F.3d 558, 572 (3d Cir. 2010).

21

Much of Dennis’ argument supporting his assertion of

outrageous prosecution reiterates claims he made in the

context of his appeal regarding entrapment. 10 Dennis

contends that the Government created the crimes; that it had

no credible basis for asserting that he was supporting himself

and his family with criminal activity, nor any basis for

suspecting Dennis would participate in the crimes; that the

Government actively encouraged Dennis to participate in the

crimes; and finally, that it provided the necessary information

and implements for the crime. However, “a successful due

process defense must be predicated on intolerable government

conduct which goes beyond that necessary to sustain an

entrapment defense.” Jannotti, 673 F.2d at 607. Dennis must

do more than merely show enough to convince a judge that a

reasonable juror could doubt his predisposition or intent to

commit the crime.

We dismissed a claim of outrageous prosecution in

Beverly even though the entrapment defense was raised and

instructed. Beverly, 723 F.2d at 12-13. Similar to the instant

case (if we accept Dennis’ testimony as true), the ATF agent

in Beverly: induced a person introduced by an informant to

10

Dennis argues for the first time on appeal that the

Government structured the crime to maximize Dennis’

punishment, and that the ATF’s reverse sting operations

disproportionately target men of color, like Dennis. We are

not persuaded by Dennis that good cause exists for us to

exercise our discretion to review them or, alternatively, to

remand the issue to the District Court for further fact finding.

The record provides no indicia of an outrageous abuse of the

Government’s prosecutorial authority here.

22

commit a crime, supplied him with items necessary to carry it

out, and transported him to the location where the crime was

to be committed. Id. In our dismissal, we noted the Supreme

Court’s admonishment to refrain from exercising ‘“a

Chancellor’s foot’ veto over law enforcement practices of

which it [does] not approve.’” Id. at 13 (alteration in original)

(quoting United States v. Russell, 411 U.S. 423, 435 (1973)).

The same rationale applies here.11

V.

Conclusion

For all of the reasons stated above, we will reverse the

judgment of conviction and sentence only on Count I,

conspiracy to commit robbery pursuant to 18 U.S.C. §

1951(a), and Count III, using and carrying a firearm during

and in relation to a crime of violence pursuant to 18 U.S.C. §

924(c)(1)(A)(i). We will remand to the District Court for a

new trial. The judgment of conviction and sentence is

affirmed on Count II, conspiracy to distribute and possess

with intent to distribute cocaine in violation of 21 U.S.C.

§841(a)(1) and 21 U.S.C. §841(b)(1)(A).

11

Because we are reversing and remanding for a new trial on

the robbery and firearm counts of the indictment, we will not

address Dennis’ remaining claim that his sentence of fifteen

years violated the Eighth Amendment.

23

AMBRO, Circuit Judge, dissenting in part and concurring in

part

Offered the chance to participate in a stash house

robbery, Ralph Dennis agreed without hesitation. This case is

thus a straightforward application of the Supreme Court’s rule

that a defendant is not entitled to an entrapment instruction

when the evidence shows, at most, that the Government

“merely afforded an opportunity or facilities for the

commission of the crime.” Mathews v. United States, 485

U.S. 58, 66 (1988). Despite Dennis’ eager participation, the

majority concludes that the District Court was required to

instruct the jury on entrapment. Because I believe that

conclusion fails to follow Mathews, I respectfully dissent

from that portion of the opinion. Meanwhile, I join the

majority’s due process analysis but write separately to

express some concerns about the practice of stash house

reverse stings.

We have held, based on Mathews, that “evidence of

mere solicitation, as a matter of law, is not germane to the

jury’s determination of entrapment.” United States v. Marino,

868 F.2d 549, 552 n.6 (3d Cir. 1989). In Marino, a

Government informant asked an attorney to deal in stolen

securities. Id. at 550. The attorney agreed and thereafter

became an active participant, initiating communication with

the informant and attending secretive meetings. Id. at 550–51.

We held that the District Court “correctly refused to instruct

the jury on entrapment” because the informant “merely

offered [the defendant] the opportunity to commit the

offense” and because, after receiving the offer, he “exhibited

no reluctance.” Id. at 554.

Same here. As the District Court explained, the record

lacks “even the slightest indication of reluctance . . . to

1

participate in this crime.” App. 96.1 And once Dennis joined

the conspiracy, he contributed enthusiastically. For instance,

he brought in two other co-conspirators (John Mitchell and

Terrance Hardee) and helped choreograph the planned

robbery by suggesting that the crew should tie up the guards

in the stash house.

Recognizing that mere solicitation is not enough, we

have set out a non-exhaustive list of ways that a defendant

can demonstrate entitlement to an entrapment instruction.

These avenues include showing “persuasion, fraudulent

representation, coercive tactics, [or] pleas based on need,

sympathy, or friendship.” United States v. Fedroff, 874 F.2d

178, 185 (3d Cir. 1989). The majority rests its analysis

primarily on the last item in the list—“pleas based on need,

sympathy, or friendship.” It contends that “Burk’s personal

relationship to Dennis contributed to the operation by

allowing Burk to appeal to Dennis’ sympathies based on the

story of Burk’s sick mother whom Dennis had met on a

number of occasions.” Maj. Op. at 13.

1

As the majority notes, Dennis testified that he had

previously turned down other requests from Kevin Burk, the

confidential informant, to commit similar crimes. The

majority properly avoids suggesting that these incidents bear

on inducement. Rather, it correctly contains its discussion of

them to the predisposition prong. The stash house robbery

was the first crime that Burk proposed to Dennis on behalf of

the Government. Entrapment is concerned with inducement

by the Government, not with requests made by private parties

with their own agendas. See, e.g., United States v.

Squillacote, 221 F.3d 542, 573 (4th Cir. 2000) (noting that a

“defendant who was induced to commit a crime by a private

party, without any government involvement, cannot claim

that he was entrapped”).

2

Though there is a low bar for getting a jury instruction

on entrapment, doing so based on personal relationships is

relatively difficult. See, e.g., United States v. Evans, 216 F.3d

80, 90 (D.C. Cir. 2000) (“Although we have in the past

indicated that [such pleas] can satisfy the inducement prong

of an entrapment defense, we have never found such a plea

sufficiently strong to do so.”). But here the problem runs

deeper. Though Dennis testified at length, he never said that

sympathy for Burk’s mother had anything to do with his

decision to join the conspiracy to rob the stash house.

The majority acknowledges this problem. It concedes

that it is “true that Dennis never uttered the words that

‘friendship motivated his participation’ in the stash house

scheme,” but it nonetheless finds “a plea of friendship to lie at

the basis of Burk’s plea for help.” Maj. Op. at 14 n.6. My

colleagues base this conclusion on Dennis’ testimony that he

told Burk that the money from the robbery “is really gonna

help your mother.” Id. (quoting App. 1138). But Dennis’

recognition that the money would help Burk’s mother does

not mean that this caused him to agree to the robbery. Our

duty to interpret the record in Dennis’ favor does not include

an obligation (or, for that matter, a license) to put words in his

mouth. If Dennis had said he perceived an obligation to help

Burk’s mother, the majority would be on stronger footing.

But he did not, and we should not proceed as though he had.

Apart from the sympathy theory, the majority also

emphasizes that the ATF did not have Dennis on its radar

prior to the sting. However, it never explains how this relates

to inducement. As discussed below, the Government’s

selection of targets might bear on a due process analysis. But

the question for our purposes is not how the Government

found Dennis, but rather the methods it employed to secure

his willingness to commit a crime. Ultimately, the evidence

3

shows that Dennis did not take much (or even any)

convincing.

None of this should suggest that entrapment

instructions are unavailable in the context of stash house

reverse stings. In fact, they frequently are required. For

instance, the Seventh Circuit, sitting en banc, determined that

a defendant had a right to an instruction because the

Government engaged in a “concerted effort” to get him to

agree to rob a stash house. United States v. Mayfield, 771

F.3d 417, 421 (7th Cir. 2014) (en banc). The defendant

declined all of the initial offers, but the Government’s

informant persisted by bringing up the subject “[e]ach day”

over an extended period. Id. This is classic evidence of

inducement.

But less than a month later, a panel of the Seventh

Circuit decided another stash house reverse sting case that

looks a lot more like ours, and it concluded that no

entrapment instruction was required. My colleagues suggest

that this second case, United States v. Blitch, 773 F.3d 837

(7th Cir. 2014), as amended on denial of reh’g and reh’g en

banc (Jan. 27, 2015), is helpful to their approach. I disagree,

as it is difficult to imagine a more factually similar example

of why an entrapment instruction is not required here.

Let’s start with the facts of Blitch. There, as here, an

ATF agent played the role of a disgruntled courier for a cartel

and recruited a confidential informant to find individuals

willing to rob a large quantity of drugs. Id. at 840. If

anything, the informant’s incentives were more of a problem

in Blitch than they were here. That is because the Blitch

informant had agreed, as part of a plea, to assist in the arrest

and indictment of a specific number of individuals (ten), and

he was applying the stash house robbery participants toward

that quota. Id. Like Rock did here, the agent in Blitch offered

4

the defendants a way out if they had cold feet, but (as Dennis

did) they remained enthusiastically committed. Id. at 842.

And, as was true here, the informant in Blitch was actively

involved in the sting. For instance, he asked one of the

defendants to find another participant, discussed how the

robbers would split the haul, set up a meeting with the

undercover agent, and called the crew the night before the

would-be heist to provide details. Id. at 840–42.

The panel in Blitch contrasted its facts with those in

Mayfield. Whereas the latter involved a drawn-out courtship

between the Government and a reluctant participant, Blitch

featured a “take-it-or-leave-it proposition” where the

Government merely presented a crime without extensively

lobbying the defendants to participate. Id. at 845. The Court

concluded that the defendants “were not subject to anything

that would transform the government’s solicitation into

something more than an ordinary opportunity to commit a

crime,” and it rejected the argument that the “promise of

obtaining a large amount of drugs, in addition to hundreds of

thousands of dollars of actual cash on hand, qualifies as

improper inducement.” Id. at 844–45 (internal quotation

marks omitted). Thus, far from helping the majority, Blitch

rejects its reasoning.

Because there is not sufficient evidence of inducement,

Dennis is not entitled to a jury instruction even if he could

establish a lack of predisposition. See Marino, 868 F.2d at

551 n.3 (“Consequently, if the defendant does not produce

sufficient evidence of inducement, his evidence of non-

predisposition alone would not warrant an entrapment

charge.”). The threshold that a defendant must cross to get an

instruction is not high, but Dennis has failed to meet his

burden. I would therefore affirm the District Court’s ruling on

the entrapment instruction.

5

Dennis also raises a due process challenge. My

determination that he was not entitled to an entrapment

instruction does not foreclose concluding that the indictment

should be quashed due to egregious conduct by the

Government. See, e.g., United States v. Jannotti, 673 F.2d

578, 608 (3d Cir. 1982) (en banc) (noting that “a finding of

no entrapment does not preclude the availability of a due

process defense”). As the majority notes, however, this claim

falls short. I write nonetheless on this point to express my

concern about the constitutional implications of stash house

reverse stings.

The Government wields tremendous power in

investigating crimes. Here it exercised that authority to create

from whole cloth a fictitious crime and to prosecute someone

for a robbery that could not have been committed. There was

no stash house, no cartel, and no cocaine. This is not an

isolated occurrence. According to a 2013 article, over 1,000

people have been arrested (and at least 600 have been

prosecuted) in connection with attempting to rob fictitious

stash houses. See Brad Heath, ATF Uses Fake Drugs, Big

Bucks to Snare Suspects, USA Today, June 28, 2013, at 1A.

The Constitution affords great deference to the Government’s

investigative choices, but it does draw a line: indictments

based on outrageous conduct cannot stand. No court of

appeals has found that the Government has crossed that line

in setting up a stash house reverse sting. But it appears that

the Government has been tiptoeing near the line.

For instance, in United States v. Black, 733 F.3d 294

(9th Cir. 2013), the Government sent an informant into “a bad

part of town” to look for strangers willing to rob a stash

house. Id. at 299 (internal quotation marks omitted). The

targeting was not based on any suspicion that the people

approached were in any way predisposed to commit the

6

crime. The majority concluded that there was not a due

process violation. Judge Noonan dissented, writing:

[T]he imaginary stash house . . . gives the

government essentially unchecked power to

increase the number of persons drawn in as

robbers by supplying the number of imaginary

guards for the drugs and by supplying the

amount of imaginary drugs that are supposed to

be present. The power exercised by the

government is not only to orchestrate the crime

but to control and expand those guilty of it. I do

not see how this power can be rationally

exercised. No standard exists to determine the

limits of the government’s discretion.

Id. at 318 (Noonan, J., dissenting). And when the Ninth

Circuit declined to rehear the case en banc, Judge Reinhardt,

joined by then-Chief Judge Kozinski, dissented. They wrote

that the majority opinion sent “a dangerous signal that courts

will uphold law enforcement tactics even though their threat

to values of equality, fairness, and liberty is unmistakable.”

United States v. Black, 750 F.3d 1053, 1054 (9th Cir. 2014)

(Reinhardt, J., dissenting from denial of rehearing en banc).

Black is a cautionary tale about what can result if the

power to create crimes is employed without constraints. Our

facts are not nearly as severe. The Government did not, as it

did in Black, select a defendant at random. Rather, a

confidential informant provided information about Dennis’

criminal past, much of which the Government was able to

corroborate, before the sting was approved. But that does not

make the critique wholly inapplicable. Unlike Judge Noonan,

I do not find it impossible for the Government to exercise its

discretion rationally to set up stash house reverse stings. But I

7

share the concern that this practice, if not properly checked,

eventually will find itself on the wrong side of the line.

Until then, courts can only play a limited role in

policing investigative priorities. We are judges and not

policymakers, and our lodestar is outrageousness and not

imprudence. But what we can do is distinguish our narrow

constitutional analysis from a broad stamp of approval. As we

explained in an analogous context, “[t]his conclusion . . .

should not be construed as an approval of the government’s

conduct. To the contrary, we have grave doubts about the

propriety of such tactics. Although we cannot say that such

conduct in and of itself violates the Constitution, it may

illustrate the necessity for greater oversight so that

questionable police practices can be curbed before they

violate our most fundamental laws.” United States v. Beverly,

723 F.2d 11, 13 (3d Cir. 1983). I echo these sentiments here.

8