Petition for Writ of Certiorari — Franz P. Cannet, aka Chico, Petitioner v. United States

Supreme Court briefNov 29, 2017

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NO. _______

IN THE SUPREME COURT OF THE UNITED STATES

_______________________________

FRANZ P. CANNET,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

________________________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________

BENEDICT P. KUEHNE

Counsel of Record

MICHAEL T. DAVIS

KUEHNE DAVIS LAW, P.A.

100 S.E. 2nd St., Suite 3550

Miami, FL 33131-2154

Tel: 305.789.5989

efiling@kuehnelaw.com

Counsel for Petitioner

QUESTION PRESENTED

Whether the disposition to commit the charged criminal act can

develop after government inducement?

PARTIES TO THE PROCEEDING

All parties are listed in the caption.

TABLE OF CONTENTS

QUESTION PRESENTED ......................................................................... i

PARTIES TO THE PROCEEDING ........................................................... i

TABLE OF CONTENTS ...........................................................................ii

TABLE OF AUTHORITIES .................................................................... iii

OPINION BELOW .................................................................................... 1

JURISDICTION ........................................................................................ 1

STATEMENT OF THE CASE .................................................................. 2

Background ......................................................................... 2

II.

Jury Question on Entrapment Defense .............................. 6

III.

The Eleventh Circuit Decision ............................................ 7

REASONS FOR GRANTING THE PETITION ........................................ 8

THIS COURT SHOULD GRANT REVIEW OF THE COURT OF

APPEALS’ DECISION BECAUSE OF THE MATERIAL

CONFLICT WITH JACOBSON V. UNITED STATES, 503 U.S. 540,

548–49 (1992), AND SHERMAN V. UNITED STATES, 356 U.S.

369, 372 (1958), BY APPROVING A DISTRICT COURT

INSTRUCTION THAT INVITED THE JURY TO FIND THAT

PETITIONER BECAME PREDISPOSED AFTER GOVERNMENT

INDUCEMENT. ..................................................................................... 8

CONCLUSION ........................................................................................ 16

APPENDIX .............................................................................................. 17

TABLE OF AUTHORITIES

Page(s)

Cases

Jacobson v. United States,

503 U.S. 540 (1992) ....................................................................... 10, 12

Mathews v. United States,

485 U.S. 58 (1988) ................................................................................. 9

Sherman v. United States,

356 U.S. 369 (1958) ................................................................... 9, 12, 13

Sorrells v. United States,

287 U.S. 435, 53 S. Ct. 210, 77 L.Ed. 413 (1932) ................................. 8

United States v. Cannet,

16-16801, 2017 WL 3774541 (11th Cir. Aug. 31, 2017) ............. 1, 8, 18

United States v. Isnadin,

742 F.3d 1278 (11th Cir. 2014) ............................................................. 8

United States v. Khubani,

791 F.2d 260 (2d Cir.1986) ................................................................. 11

United States v. North,

746 F.2d 627 (9th Cir.1984) ................................................................ 11

United States v. Parr,

716 F.2d 796 (11th Cir. 1983) ............................................................. 10

United States v. Russell,

411 U.S. 423 (1973) ............................................................................... 9

Statutes

18 U.S.C. § 3231 ........................................................................................ 1

iii

18 U.S.C. § 3742 ........................................................................................ 1

18 U.S.C. § 924(c)(1)(A) ............................................................................. 2

18 U.S.C. § 924(o) ...................................................................................... 2

21 U.S.C. § 841(a)(1),(b)(1)(C) ................................................................... 2

21 U.S.C. § 846 .......................................................................................... 2

28 U.S.C. § 1254 ........................................................................................ 1

28 U.S.C. § 1291 ........................................................................................ 1

Other Authorities

Federal Rules of Appellate Procedure Rule 4 ........................................... 1

Supreme Court Rules 10.1(a) & (c) and 13 ............................................... 1

Supreme Court Rules Rule 13.1................................................................ 1

Franz P. Cannet petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eleventh Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals is reported at __

Fed. Appx. __, 2017 WL 3774541 (11th Cir. 2017), and is reprinted at

Appendix, App. 1.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. ' 3231.

Cannet was charged with federal criminal offenses. The Eleventh Circuit

Court of Appeals had jurisdiction over his appeal pursuant to 28 U.S.C.

' 1291 and 18 U.S.C. ' 3742, giving courts of appeals jurisdiction over

final decisions and sentences of United States district courts, and Rule 4

of the Federal Rules of Appellate Procedure. The appellate decision was

entered on August 31, 2017. This petition is filed within 90 days of that

date, as provided in Rule 13.1 of the Supreme Court Rules. This Court’s

jurisdiction rests on 28 U.S.C. ' 1254 and Supreme Court Rules 10.1(a)

& (c) and 13.

STATEMENT OF THE CASE

Petitioner appealed his convictions and sentences on six counts

related to his participation in three successive sham drug transactions

initiated by undercover law enforcement officials. 1

Background

Florida Highway Patrol, operating on a tip that a local biker club

was engaged in national narcotics trafficking, placed two undercover

agents inside the club to find the members selling narcotics. The

Petitioner was not a target of the investigation. Using a confidential

informant who was a life member of the bike club (DE106:170, 199;

DE107:11; DE108:61-62), two undercover state law enforcement officials

infiltrated the club and found the members who were selling narcotics

(DE106:172, 187-88). Within two months of the investigation, the police

Specifically, the jury convicted the Petitioner on Count 1,

conspiracy to possess with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1),(b)(1)(A); Counts 24, attempt to possess with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1),(b)(1)(C); Count 5, conspiracy to use firearm during a

drug trafficking crime, in violation of 18 U.S.C. § 924(o); and Count 6, use

of a firearm during a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A). The jury acquitted him of Count 7, use of a firearm during a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

had conducted several undercover narcotics transactions with the guilty

bike club members (DE106:187-88).

The police then targeted the local club’s Florida state president, the

Petitioner (DE106:180), who had 17 years of experience in providing

security and had been a bodyguard for celebrities and athletes

(DE108:143). The police did not know Petitioner to be a criminal

(DE108:48). And his Pre-Sentence Investigation Report confirmed he had

no prior criminal history beyond numerous traffic-related dispositions

(DE103:8-12). According to the undercover agent, Petitioner Cannet did

not even smoke or drink (DE108:66). The Petitioner was a husband of

five years and father of two small children, ages 2 and 4 (DE108:144).

On July 7, 2011, the detective claimed that he suggested to

Petitioner that he use his security skills to provide security for cocaine

deliveries (DE106:94). Law enforcement did not record this conversation

(DE106:194; DE108:55), even though the pitch was made in the back

office of a store owned by an FBI confidential informant (DE106:200;

DE107:23). At trial, the agent claimed he did not recall the specifics of

the conversation (DE106:202), and that he only remembered the gist of

Petitioner’s response:

He was interested in the security, or bodyguarding as he

called it. At that time was when he told me, I don't need to

know what we are taking, I am here to bodyguard you, to that

effect.

(DE106:204). The Petitioner agreed to charge $1,500 (DE106:204) for the

security, which they discussed would happen on July 20, 2011

(DE106:212).

Four days later on July 11, 2011, the Petitioner backed out during

the planning phase, as the undercover agent attempted to introduce him

to Det. Thomas McInerney, who would also be involved undercover

(DE106:208-10, 212). The Petitioner did not participate in a July 20

transaction (DE107:12-13). After a month’s worth of unsuccessful

attempts to make the Petitioner comfortable with the plan and

McInerney’s involvement (DE106:212-13), the undercover agent told

Petitioner on August 3, 2011, that no one else would be involved if Cannet

agreed to participate (DE106:212). Still, the Petitioner did not participate

in the narcotics transactions, even though the detective conducted other

narcotics transactions with other bike club members in July and August

(DE106:214).

The Petitioner returned to the undercover agent’s proposal in

September (DE107:18; DE108:170). The jury heard the September 15,

2011, recorded conversation, wherein the Petitioner told the undercover

agent he had only 13 cents in the bank and needed work (DE108:170;

Gov’t Ex. 24, 101). The agent hired the Petitioner to secure the September

21, 2011, sale of sham cocaine (DE106:216). Petitioner received $700, and

the transaction went well (DE106:216). Petitioner participated in two

more sham transactions (October 27, 2011 and July 18, 2012) (DE107:4951; DE108:28-29). The subsequent transactions were each the same.

The undercover agent also introduced the idea of Petitioner

participating in a home invasion robbery of a drug dealer (DE107:68).

Cannet expressed an active interest in this plan, but it never happened

(DE107:68-69). Cannet also suggested that Morales send 10 kilograms of

drugs to a buyer in New York, but nothing came of this either (DE107:51).

After these three transactions, Petitioner never spoke with the agent

again, until his arrest three years later (DE108:164).

Throughout the entire year and a half undercover investigation, the

government witnesses all admitted neither of them uncovered any

evidence of the Petitioner ever participating in the transporting,

delivering, or selling of drugs before they presented the idea (DE108:465

47, 51). At trial, the undercover agent explained that they just “picked

[the Petitioner] out of the crowd.” (DE108:47).

II.

Jury Question on Entrapment Defense

After a review of the evidence, the district court concluded the

defense presented sufficient evidence of inducement (DE112:22). It

accordingly instructed the jury on entrapment (DE63). The court defined

“entrapment” as “occur[ing] when a law-enforcement officer persuades a

defendant to commit a crime the defendant had no previous intent to

commit.” (DE63:18). The court explained that “if there is a reasonable

doubt about whether the Defendant was willing to commit the crime

without the persuasion of a Government officer or a person under the

Government's direction, then you must find the Defendant not guilty.”

(DE63:19).

The jury struggled to understand the legal effect of a finding that

the agent entrapped Petitioner with his July 11, 2011 proposal, and

sought further instruction from the district court. By written question,

the jury asked if a finding that Petitioner was entrapped by the agent in

the beginning, before and up to the first transaction, negated his conduct

afterward:

If we think he was possibly a victim of entrapment in the

beginning before and up to Tootsie's, does it negate everything

else that came after?

(DE112:139) (emphasis added). The district court did not answer the

polar question with a “Yes” or “No.” It answered by directing the jury to

independently evaluate each count when deciding whether Petitioner was

willing to commit the charged crime without government persuasion:

The defense of entrapment has been raised as to each count

in the indictment. You should evaluate each count

independently.

(DE112:145). The defense objected because the instruction suggested to

the jury that it could convict Petitioner, even if it concluded the

undercover agent entrapped him with his offer on July 11 (DE112:145).

After deliberating, the jury returned a guilty verdict on six of the

seven counts (DE61). A notice of appeal was timely filed (DE95), and

Petitioner appealed his judgment and sentence, arguing that the

supplemental response was erroneous and that there was insufficient

evidence of his predisposition.

III. The Eleventh Circuit Decision

A panel of the Eleventh Circuit found no error in the district court’s

instruction. United States v. Cannet, 16-16801, 2017 WL 3774541, at *2

(11th Cir. Aug. 31, 2017). Relying on United States v. Isnadin, 742 F.3d

1278, 1286 (11th Cir. 2014), the panel concluded the district court

properly told the jury to consider the defense of entrapment separately

and individually as to each count. Id. The panel further concluded there

was sufficient evidence of Petitioner’s predisposition to commit the

charged offenses. Id. at *2.

REASONS FOR GRANTING THE PETITION

THIS COURT SHOULD GRANT REVIEW OF THE COURT

OF APPEALS’ DECISION BECAUSE OF THE MATERIAL

CONFLICT WITH JACOBSON V. UNITED STATES, 503

U.S. 540, 548–49 (1992), AND SHERMAN V. UNITED

STATES, 356 U.S. 369, 372 (1958), BY APPROVING A

DISTRICT COURT INSTRUCTION THAT INVITED THE

JURY TO FIND THAT PETITIONER BECAME

PREDISPOSED AFTER GOVERNMENT INDUCEMENT.

This “Court has consistently adhered to the view, first enunciated

in Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L.Ed. 413

(1932), that a valid entrapment defense has two related elements:

government inducement of the crime, and a lack of predisposition on the

part of the defendant to engage in the criminal conduct.” Mathews v.

United States, 485 U.S. 58, 62–63 (1988). Predisposition is “the principal

element in the defense of entrapment.” United States v. Russell, 411 U.S.

423, 433 (1973). The predisposition element “focuses upon whether the

defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who

readily availed himself of the opportunity to perpetrate the crime.”

Mathews, 485 U.S. at 63. The police cannot “implant in the mind of an

innocent person the disposition to commit the alleged offense.” Sherman

v. United States, 356 U.S. 369, 372 (1958). This Court has reasoned that

this type of virtue testing is as objectionable as coerced confessions or

unlawful searches. Id. The Court has accordingly required that a line be

drawn between “the trap for the unwary innocent and the trap for the

unwary criminal.” Id.

In this case, once the district court determined that Petitioner

satisfied his burden of establishing government inducement (DE112:2022), the burden shifted to the government to prove beyond a reasonable

doubt Petitioner’s predisposition to provide armed security for drug

transactions. Jacobson v. United States, 503 U.S. 540, 548–49 (1992). The

jury question about whether the Petitioner being entrapped in the

“beginning before and up to Tootsie's [the first transaction]” negated his

actions “after” (DE112:139) established the jury did not fully comprehend

how to apply the entrapment instruction. Yet the district court response

was misleading and confusing.

The district court answered the jury’s polar question 2 with an

answer other than “Yes” or “No,” which was nonresponsive, vague, and

failed “to clear away the jury's confusion and difficulty with concrete

accuracy.” United States v. Parr, 716 F.2d 796, 809 (11th Cir. 1983)

(citing United States v. Carter, 491 F.2d 625, 633 (5th Cir. 1974)).

Still, the substance of the instruction was misleading. The district

court directed the jury to independently analyze Petitioner’s entrapment

defense as to each count, which under the facts of this case was legally

impossible. The three drug transactions were part of the same course of

conduct and the product of the same act of inducement. If the Petitioner

was not predisposed at the point the government invited him to

participate in the drug transactions on July 7, 2011, then his conduct

after, before and up to the first transaction was excused. His

predisposition could not develop after the inducement. Nor could it

2 A polar question is defined as a “Yes” or “No” question.

develop by virtue of his participation in the criminal venture. 3 Yet, the

Eleventh Circuit concluded the district court’s instruction on this point

was accurate.

The panel decision of the Eleventh Circuit is but a representation

of several circuits that have taken the approach that a defendant’s

predisposition can develop after government inducement and during his

participation in the induced criminal venture. See also United States v.

Khubani, 791 F.2d 260, 264 (2d Cir.1986) (“Limiting examination of

defendant's state of mind to the period prior to any governmental contact

ignores the possibility that the defendant could become predisposed to

commit the crime after the government's first contact.”); United States v.

North, 746 F.2d 627, 630 (9th Cir.1984) (“We do not think that, if

[defendant] was not initially disposed to sell drugs, he could not, as a

matter of law, develop such a disposition during the later course of

dealing. He might well have found such dealing so profitable and easy

Facts may develop during the venture that establish his

predisposition (i.e. the police learn the defendant has participated in

prior drug transactions), but his mere participation cannot establish

predisposition.

that he thereafter willingly continued it, regardless of Sesso's original

inducement.”), abrogated on other grounds, United States v. Kent, 649

F.3d 906 (9th Cir. 2011).

These decisions are not in alignment with this Court’s precedent.

This Court has consistently maintained that law enforcement cannot

“implant in the mind of an innocent person the disposition to commit the

alleged offense and induce its commission in order that they may

prosecute.” Jacobson v. United States, 503 U.S. 540, 553 (1992) (quoting

Sorrells, 287

U.S.

442)).

Indeed,

Sherman

materially

indistinguishable from the facts of this case. In Sherman, the defendant,

after being induced to commit a drug crime by the government,

participated in several drug transactions. 356 U.S. at 374. Finding

entrapment as a matter of law, this Court specifically concluded that it

made no “difference that the sales for which petitioner was convicted

occurred after a series of sales.” Id. at 374. “They were not independent

acts subsequent to the inducement but part of a course of conduct which

was the product of the inducement.” Id.

This case is no different. The series of transactions that followed

the government’s July 7, 2011, inducement were not independent acts.

The undercover agent proposed that the Petitioner provide security for

drug transactions. After this inducement, the Petitioner participated in

three identical transactions. The instant instruction ordered the jury to

decide if Petitioner became disposed to participate in the narcotics

transactions after the government presented the idea to him on July 7,

2011, which was a legal impossibility.

This Court should grant the petition for writ of certiorari and hold

that predisposition cannot be developed after government inducement in

cases such as this, where the criminal transactions that follow the

inducement are not independent acts but part of a course of conduct

which was the product of the inducement. There are two primary reasons.

First, the instruction in this case excused the jury from resolving

the factual question of whether Petitioner was ready, willing, and able to

participate in a drug transaction on July 7, 2011. In this case, the jury

had many reasons to conclude that Petitioner would not have provided

armed security for drug transactions before the undercover agent

presented the idea. These reasons include the following:

(a)

Law enforcement, aided by an inside informant and three

undercover operatives, discovered no evidence during its year and a half

investigation of Cannet ever participating in a narcotics transaction

before government inducement (DE108:46-47, 51). Cannet’s PreSentence Investigation Report confirmed his lack of criminal history

(DE103:8-12).

(b) The undercover agent agreed at trial that law enforcement

“came along and picked [the Petitioner] out of the crowd.” (DE108:47).

2011, conversation was not recorded, even though it was had at the

business of the government’s confidential informant. Furthermore, the

undercover agent claimed not to recall the specifics of the conversation,

and there were apparently no other eye witnesses to the conversation.

(d) The Petitioner did not pursue the originally-planned July 20,

2011, transaction (DE106:212).

(e) The Petitioner only participated because he was financially

desperate. Two months later, Cannet called Morales, explaining he had

13 cents in the bank and needed to work (DE108:170; Gov’t Ex. 24, 101).

Cannet was a husband and the father of two young children at the time

(DE108:144).

By ordering the jury to determine if the Petitioner was predisposed

at the time of each transaction, which was after the government

inducement, the district court unfairly eliminated the importance of

these factual issues and credibility determinations. If Petitioner’s

disposition could develop after his inducement, regardless of whether he

was initially entrapped, then these facts became irrelevant to the

analysis of whether the Petitioner was entrapped by the undercover

agent.

Second, the panel’s decision and similar decisions have effectively

eliminated the entrapment defense. If it is true that the defendant’s

disposition can develop after inducement and during his participation in

the drug transactions, then the government can overcome any

entrapment defense by structuring more transactions. The more

transactions the government conducts before arrest, the more likely the

government is to overcome any taint caused by its unlawful inducement.

Such conduct weakens this Court’s admonishment in Jacobson, that “In

their zeal to enforce the law . . . Government agents may not originate a

criminal design, implant in an innocent person's mind the disposition to

commit a criminal act, and then induce commission of the crime so that

the Government may prosecute.” 503 U.S. at 548–49. Certiorari review is

needed to restore uniformity to application of the entrapment defense

throughout the United States.

CONCLUSION

For all these reasons, this Court should grant the petition.

Respectfully submitted,

S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

Florida Bar No. 233293

MICHAEL T. DAVIS

Florida Bar No. 63374

KUEHNE DAVIS, P.A.

100 S.E. 2nd St., Suite 3550

Miami, FL 33131-2154

Tel: 305.789.5989

Fax: 305.789.5987

ben.kuehne@kuehnelaw.com

efiling@kuehnelaw.com

APPENDIX

TABLE OF CONTENTS

Opinion, U.S. Court of Appeals for the Eleventh

Circuit, United States v. Cannet,

__ Fed. Appx. __, 2017 WL 3774541 (11th Cir. 2017) ............ App. 1

Jury Note (DE65) ............................................................................. App. 7

Transcript of Jury Trial, Vol. 4 (DE112)………………………………App. 8

Excerpt of Argument on Response to Jury Note (Pages 139-148)

Case: 16-16801

Date Filed:

(1 of 7)

08/31/2017

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-16801

Non-Argument Calendar

________________________

D.C. Docket No. 0:15-cr-60117-DTKH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANZ P. CANNET,

a.k.a. Chico,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 31, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

App. 1

Case: 16-16801

Date Filed:

(2 of 7)

08/31/2017

Page: 2 of 6

Franz P. Cannet was charged with multiple drug and firearms offenses after

he assisted an undercover agent with three drug transactions. Cannet served as a

bodyguard for the agent during the transactions. At trial, Cannet unsuccessfully

raised an entrapment defense; the jury found him guilty of conspiracy with intent

to distribute five kilograms or more of cocaine, three counts of attempt to possess

with intent to distribute cocaine, conspiracy to use a firearm during a drugtrafficking crime, and use of a firearm. The district court sentenced him to 180

months’ imprisonment. This is Cannet’s appeal.

Cannet argues that (1) the trial evidence was insufficient to support his

convictions, (2) the district court erred in denying his motion for mistrial, (3) the

district court provided an improper supplemental jury instruction, and (4) the

district court violated Apprendi v. New Jersey1 in sentencing him. After carefully

considering these arguments, we find no reversible error. Therefore, we affirm.

I. SUFFICIENCY OF THE EVIDENCE

Cannet asserts that, in light of his entrapment defense, the trial evidence was

insufficient to support his convictions. “The entrapment defense involves two

separate elements: (1) [g]overnment inducement of the crime, and (2) lack of

predisposition on the part of the defendant.” United States v. Isnadin, 742 F.3d

1278, 1297 (11th Cir. 2014) (emphasis omitted). “The defendant bears an initial

530 U.S. 466, 120 S. Ct. 2348 (2000).

App. 2

Case: 16-16801

Date Filed:

(3 of 7)

08/31/2017

Page: 3 of 6

burden of production to show that the first element . . . is met.” Id. (emphasis

omitted). “Once the defendant makes this initial showing, the burden shifts to the

[g]overnment to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime.” Id. Cannet contends that, although he made an

initial showing of inducement, the government failed to prove that he was

predisposed to commit his offenses. But taking the trial evidence “in the light most

favorable to the [g]overnment,” the evidence was sufficient to establish that Cannet

was predisposed to commit the offenses. See id. at 1303.

First, the evidence indicates that Cannet readily agreed to serve as a

bodyguard for the undercover agent during drug transactions. See id. at 1298

(“Predisposition may be demonstrated simply by a defendant’s ready commission

of the charged crime.” (quoting United States v. Brown, 43 F.3d 618, 625

(11th Cir. 1995)). When Cannet and the agent first discussed Cannet serving as a

bodyguard, the agent informed Cannet that drugs would be involved, and

according to testimony from the agent, Cannet responded: “I don’t need to know

what we are taking, I am here to bodyguard you.” Cannet also quoted a price for

his services.

Second, Cannet had ample opportunity to back out of his arrangement with

the undercover agent, but he failed to do so. See id. (“A predisposition finding is

also supported by evidence that the defendant was given opportunities to back out

App. 3

Case: 16-16801

Date Filed:

(4 of 7)

08/31/2017

Page: 4 of 6

of illegal transactions but failed to do so.” (quoting Brown, 43 F.3d at 625). After

Cannet’s initial discussion with the agent, a few months went by before Cannet

actually served as a bodyguard for a drug transaction. And before that transaction,

the agent attempted to renegotiate Cannet’s payment, thus providing Cannet a

chance to back out. However, Cannet decided to proceed—he agreed to work for

less pay.

Finally, the government offered evidence showing that Cannet, throughout

his interactions with the undercover agent, made statements underscoring his

willingness to assist the agent in drug transactions. See id. (“Post-crime statements

will support a jury’s rejection of an entrapment defense.” (quoting Brown, 43 F.3d

at 625). Cannet, for example, told the agent that he knew individuals who would

buy drugs from the agent.

II. MOTION FOR MISTRIAL

Cannet next argues that the district court erred in denying his motion for

mistrial. He moved for mistrial after the undercover agent testified that he

shoplifted once while he was with the agent. That testimony, Cannet contended,

was “gratuitous, unnecessary, and unsubstantiated.” Cannet reiterates this

argument on appeal. But even assuming that the testimony was improper, reversal

is not warranted because the testimony did not “prejudicially affect[]” Cannet’s

“substantial rights.” See United States v. Newsome, 475 F.3d 1221, 1227

App. 4

Case: 16-16801

Date Filed:

(5 of 7)

08/31/2017

Page: 5 of 6

(11th Cir. 2007) (per curiam). Cannet asserts that the testimony prejudiced him

because it suggested that he is predisposed to criminal activity. However, “the

record contains sufficient independent evidence” establishing Cannet’s

predisposition. See id. (“[W]hen the record contains sufficient independent

evidence of guilt, any error was harmless.”).

III. JURY INSTRUCTIONS

Cannet also argues that the district court erred because it provided an

improper supplemental jury instruction. This challenge fails, however, because the

supplemental jury instruction neither inaccurately presented the law nor improperly

guided the jury in a substantial way. See Isnadin, 742 F.3d at 1296 (“We will not

reverse a conviction on the basis of a [supplemental jury instruction] unless the

issues of law were presented inaccurately, or the [instruction] improperly guided

the jury in such a substantial way as to violate due process.” (internal quotation

marks omitted)). The jury asked the district court: “If we think [Cannet] was

possibly a victim of entrapment [when he served as a bodyguard during the first

drug transaction,] does it negate everything else that came after?” And the court

responded: “The defense of entrapment has been raised as to each count in the

indictment. As indicated in the jury instructions, you should evaluate each count

independently.” That instruction accurately presented the law. See id. at 1297

(finding no error where the district court “instructed [the jury] to consider the

App. 5

Case: 16-16801

Date Filed:

(6 of 7)

08/31/2017

Page: 6 of 6

defense of entrapment separately and individually as to each defendant and each

count charged in the indictment”). Further, when we review the instruction “as

part of the entire jury charge [and] in light of the . . . evidence presented,” the

instruction did not improperly guide the jury in a substantial way. See id. at 1296.

IV. APPRENDI CHALLENGE

Lastly, Cannet argues that the district court violated Apprendi because, in

determining his advisory Sentencing Guidelines range, the court relied on facts that

it, rather than the jury, found. We disagree. Apprendi is implicated only when a

defendant is sentenced above the statutory maximum. See United States v. Dudley,

463 F.3d 1221, 1228 (11th Cir. 2006) (“[The defendant] was not sentenced beyond

the statutory maximum, so there is no Apprendi error.”). And the district court

sentenced Cannet below the statutory maximum.

V. CONCLUSION

In sum, the trial evidence was sufficient to support Cannet’s convictions, the

district court did not err in denying Cannet’s motion for mistrial, the district court

did not commit reversible error in providing the supplemental jury instruction, and

the district court did not violate Apprendi in sentencing Cannet.

AFFIRMED.

App. 6

Case 0:15-cr-60117-DTKH Document 65 Entered on FLSD Docket 05/10/2016 Page 1 of 3

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139

Could I, before we break, ask you to meet

THE COURT:

with the courtroom deputy.

I want to thank everyone on both sides.

One thing

that is apparent is the cooperation between the two parties.

It is wonderful to have you both here and I want the

parties on both sides to know I don't think they could have any

more effective lawyers representing them than they have had in

this case.

You have done a marvelous job.

It is an interesting

case in terms of how it originated and everything else, and I

think your arguments crystallized all of that.

Let's see what the jury does.

MR. BROWN:

Thank you very much.

MR. LEHR:

Thank you.

THE COURT:

We will be in recess pending the call of

the jury.

(Thereupon, a recess was taken.)

THE COURT:

Let the record reflect that counsel for

both parties are present and Mr. Cannet is present.

We have a question from the jury.

Let me read it to

you.

It says:

If we think he -- meaning Mr. Cannet -- was

possibly a victim of entrapment in the beginning, does it

negate everything else that came after, before and up to

Tootsie's?

Pauline A. Stipes, Official Federal Reporter

App. 8

140

I think the answer to that is yes.

MR. LEHR:

Yes, sir.

THE COURT:

Does anyone disagree?

MR. BROWN:

Read that again.

THE COURT:

It says:

I'm sorry.

If we think he was possibly a

victim of entrapment in the beginning, does it negate

everything else that came after, before and up to Tootsie's?

MR. BROWN:

I am not sure that is a yes.

THE COURT:

Let me tell you what I think the answer

is.

I think the answer is this:

Entrapment is a complete

Defense to each charge in the indictment, so you should

consider the Defense as it applies to each charge in the

indictment.

MR. LEHR:

I have a problem with that.

Once you are

entrapped and onboard a criminal enterprise, everything else is

negated by the fact that you were brought in by entrapment.

The answer you gave, respectfully, is to apply

entrapment for each one, and see if he is entrapped with each

one.

MR. BROWN:

No, I disagree.

THE COURT:

Let's think about that.

So, let's say you are persuaded to commit the crime,

and you succumb to police inducement to do it.

Your view is it flows all the way through.

Pauline A. Stipes, Official Federal Reporter

App. 9

141

You have been induced to be a drug

MR. LEHR:

trafficker by entrapment.

MR. BROWN:

Judge, I have had juries come back and

acquitted on Count 1 and convicted of counts later, and in

speaking with them, they felt they were entrapped early and not

entrapped later, and expressed his interest to become involved.

This is not like fruit of the poisonous tree, at every

stage of the proceedings, the charges that he is accused of,

each of those have to be evaluated.

Just like you told the jury in your instructions, your

decision as to one count should not and does not -- and does

not affect the decision as to each count.

defenses as well as the Government's proof of the elements.

MR. LEHR:

That applies to

That instruction says can you find him

guilty of one and not the other.

entrapped to do the first deal or entrapped to become a drug

trafficker or entrapped to do what the policeman said.

As far as entrapment, was he

There's no way to quantify it.

He was a law-abiding

citizen and then entrapped into trafficking in drugs, and once

he was entrapped, he talked, but never did any other

criminality.

THE COURT:

Okay, thank you.

Give me a second.

MR. BROWN:

I was --

THE COURT:

That is okay, everybody, thank you.

I am going to respond by telling the jury:

Entrapment

Pauline A. Stipes, Official Federal Reporter

App. 10

142

is a Defense raised as to each count of the indictment, and the

jury should find each count individually.

You may be right, Mr. Lehr, I am not sure.

We have

told the jury that they should decide one count and then the

other.

This is the better way to respond to this.

If I am in error on that, I will hear you later on a

motion for new trial.

MR. LEHR:

As long as the record reflects the

objection.

Absolutely.

No question about it.

THE COURT:

So, let me craft what I am going to say and give you

an opportunity if anybody has any objection.

I would say that the defense of entrapment has been

raised as to each and every count in the indictment and the

jury should consider it with respect to each and every count,

or evaluate it as to each count.

MR. LEHR:

To me, that is an invitation to not guilty

on the first drug deal and guilty on the second and third, or

the third.

It is not something I researched.

The only reason he

would have gone from law-abiding to drug deals was entrapment.

I made the record clear on my position.

MR. BROWN:

I would ask you add the word independently

or individually.

Pauline A. Stipes, Official Federal Reporter

App. 11

143

The defense of entrapment has been raised

THE COURT:

as to each count in the indictment.

You should consider the

evidence and the defense as to each count separately.

MR. BROWN:

That is fine.

MR. LEHR:

Separately or independently is what I find

extra objectionable.

THE COURT:

How about I say this?

How about:

You

should evaluate each count separately and independently.

is what I said to the jury already.

MR. BROWN:

That is consistent, Your Honor.

MR. LEHR:

I disagree with its accuracy.

That

I think that

instruction means how you find on one has nothing to do with

how you find on the other.

It is a legal issue.

If his first for aiding and

abetting into criminality was caused by the police officer, and

the police officer comes back and says, okay, we are going to

do two more, why isn't that covered by the entrapment?

THE COURT:

I think it would be.

on one, he is entrapped on two.

look at it individually.

If he is entrapped

We are just saying you need to

MR. LEHR:

I would say look at the logic of it.

THE COURT:

We probably need to do research.

I think what I am going to say at this juncture is the

defense of entrapment has been raised as to each count in the

indictment.

As indicated in the jury instructions, you should

Pauline A. Stipes, Official Federal Reporter

App. 12

144

evaluate each count independently.

MR. LEHR:

Can we in some way work into that if there

was duress, the duress was throughout?

THE COURT:

There is no duress.

I already ruled there

is no instruction on duress because of the lack of the third

element.

The issue is entrapment.

You are raising a very good, interesting issue.

say to the jury, consider each count by itself, and your

verdict on one does not affect the verdict on the other.

What you are saying is, yes, but we raised, if you

will, the blanket defense of entrapment as to all, or across

the board, and you really can't sever that out.

I will do research on that.

Here is what I am going

to give the jury at this point.

MR. LEHR:

You would give that same, each count is

independent, if there is no affirmative defense.

you that instruction doesn't go to applying the affirmative

defense.

THE COURT:

I am not suggesting that instruction

mandates where we are.

you raise it to a particular charge.

to every single charge.

That shows

If you raise an affirmative defense,

You raised entrapment as

The defense is raised as to every charge and look at

each charge by itself.

Pauline A. Stipes, Official Federal Reporter

App. 13

145

MR. LEHR:

Your Honor says if it agrees on one, it

flows, telling them the opposite of that.

Look at one, see if

there is entrapment, look at two, three.

You are agreeing with

me, once he was entrapped and went to the dark side, he is on

the dark side.

THE COURT:

I am saying if I were on the jury and I

found entrapment the first time, that would end the discussion

for me.

I will respond at this point to the jury and tell them

they need to look at every count independently, but the defense

of entrapment has been raised as to each count in the

indictment.

The defense of entrapment has been raised as to each

count in the indictment.

independently.

MR. LEHR:

You should evaluate each count

To me, that is highly objectionable.

can say he was entrapped for the first, and the second

voluntarily and the third voluntarily.

That invites the other counts.

THE COURT:

Does the Government have any objection to that

All right.

You

We will see where we are.

instruction?

MR. BROWN:

That is as good as it would get.

MR. LEHR:

Judge, my client would like to address the

Court.

Pauline A. Stipes, Official Federal Reporter

App. 14

146

No.

You are his lawyer.

THE COURT:

Mr. Cannet, it is important that Mr. Lehr speak for

you.

He needs to be the person to speak.

MR. LEHR:

Could we have a moment?

THE COURT:

Sure you can.

MR. BROWN:

Judge, while we are waiting, Mr.

Morris

is going to stand in for me today and tomorrow.

THE COURT:

Let me go back to Mr. Lehr.

MR. LEHR:

My client's comment went to the duress.

THE COURT:

That is in the record.

in that, Mr. Lehr has addressed it across the board on that.

I will do more research on this.

MR. LEHR:

THE COURT:

Believe it or not, there is a case that

says you do it as to each count.

We will be in recess on this matter.

(Thereupon, a short recess was taken.)

I will call my office and get someone on

the computer.

Let me see what we

can find out and I will call you back.

If there is error

MR. MORRIS:

That makes sense to me, because you could

find as --

THE COURT:

In a matter of first impression, the

Defendants were not entitled -- if they were entrapped as to

the first count, they were not necessarily entrapped for the

others.

Pauline A. Stipes, Official Federal Reporter

App. 15

147

(Thereupon, a brief recess was taken.)

THE COURT:

Ladies and gentlemen, we have a note from

the jury indicating that the jury has arrived at their

verdicts.

Are we ready to receive the verdicts?

MR. MORRIS:

We are, Your Honor.

THE COURT:

Why don't I turn to Mr. Lehr.

MR. LEHR:

The case that you presented, which is the

same case I was walking in with, on page 13, the top paragraph

on the right talks about it is important for purposes of our

analysis to know whether the District Court did so based on the

finding there was a course of conduct or, alternatively,

analyzing inducement evidence as to each count.

The Court shifted the burden to the Government to

produce beyond a reasonable doubt that Sia and Gustam were

predisposed to commit the crime that is charged, not core of

conduct.

I will not argue core of conduct.

This talks about a shift of the burden which I don't

think has been conveyed, it is not in the standard instruction

13.2.

to show there wasn't entrapment, and that has not been conveyed

to the jury.

Once we reach that point, there is a shift of the burden

THE COURT:

I think it has been in the general jury

instruction.

The general jury instruction says the Government

Pauline A. Stipes, Official Federal Reporter

App. 16

148

always bears the burden of negating the Defendant's assertion

that he was essentially pushed into this by the Government, and

what the jury has been told is that the Government's burden

applies to every single count because the defense applies to

every single count.

It is an interesting point.

I think we are beyond that right now and what we ought

to do is receive the jury's verdict.

academic.

It may make this

MR. LEHR:

May I return this?

THE COURT:

Yes, thank you very much.

Are we all set to receive the jury's verdict?

MR. LEHR:

MR. MORRIS:

Yes.

THE COURT:

Madam Deputy and Mr. Marshal, would you

bring in the jury, please.

Yes, Your Honor.

There is a process for receiving the verdict.

Each

count will be read, and I ask everybody to maintain proper

decorum and we will get that information.

There is a process for affirming whatever the verdict

is, whether it is unanimous.

We need to go through all of that if it is requested.

(Thereupon, the jury returned to the courtroom).

THE COURT:

Mr. Foreperson, has the jury arrived at its verdicts?

Ladies and gentlemen, please be seated.

Pauline A. Stipes, Official Federal Reporter

App. 17

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.