Petition for Writ of Certiorari — Terrance Chappell, Petitioner v. United States

No.

Jn the Supreme Court of the United States

TERRANCE CHAPPELL,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX

James J. McDonnell Esq. Marisa L. Serrat Esq.

Counsel of Record 55 Public Square

55 Public Square Suite, 2100 Suite 2100

Cleveland, OH 44113 Cleveland, OH 44113

(216) 781-2125 (216) 696-2150

jamesjmcdonnell@sbcglobal.net mserratlaw@gmail.com

April 3, 2018

Case: 15-3988 Document: 57-2 Filed: 10/24/2017 Page:1

NOT RECOMMENDED FOR PUBLICATION

File Name: 17a0585n.06

Nos. 15-3988, 15-3990, 15-3991, 15-4003, 15-4028

UNITED STATES COURT OF APPEALS \

FOR THE SIXTH CIRCUIT FILED

Oct 24, 2017

UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk

) y)

Plaintiff-A ppellee, )

; ON APPEAL FROM THE

) _ UNITED STATES DISTRICT

KENNETH FLOWERS: TERRANCE CHAPPELL; _ ) eo

KALI ALEXANDER; RASHEAM NICHOLS; )

JUSTIN MAXWELL, Sian

)

Defendants-Appellants.

BEFORE: SUTTON and STRANCH, Circuit Judges; STEEH, District Judge

PER CURIAM. This case is one in a long series of elaborate, nearly-identical sting

operations conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). In

these operations, referred to as “stash house stings,” an undercover agent recruits individuals to

steal a large quantity of drugs from a house protected by an armed guard. The house, the drugs,

and the guards, however, are all fictional—and would-be participants are arrested before they

reach the invented location. After such a sting operation, Kali Alexander, Terrance Chappell,

Kenneth Flowers, Justin Maxwell, and Rasheam Nichols were arrested, tried, and convicted of

conspiracy to possess with intent to distribute five or more kilograms of cocaine and using or

carrying a firearm during and in relation to a drug conspiracy. The Defendants appeal their

convictions and their sentences on various grounds. We AFFIRM.

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I. BACKGROUND

The “stash house sting” that led to Defendants’ convictions was orchestrated by ATF

Special Agent Richard Zayas. The ATF has specific protocols for conducting stings on fictional

drug “stash houses,” and Zayas himself has made a career of coordinating the stings, having

worked on or been involved with over 100 similar scenarios across the country. This was his

first stash house sting in Cleveland.

To identify a target for the sting, Zayas directed two informants, referred to as #2302 and

#9097 (working for pay and to reduce a sentence, respectively) to go into the community and

return with general information. Informant #2302 approached Alexander and discussed selling

firearms, but the sale never occurred. Alexander later agreed to sell the informant ten grams of

heroin. The informant brought up the idea of a potential robbery with Alexander, but this

meeting was not recorded and Zayas did not know what was discussed. On the day of the heroin

sale, both informants and Zayas met with Alexander, who sold them approximately 6.5 grams of

heroin for $900 that was provided by the ATF. The meeting occurred in an undercover vehicle

and was recorded.

Zayas then proposed the idea of robbing a cocaine stash house to Alexander, presenting

himself as a disgruntled drug courier who felt he was being treated unfairly. He specified that

the house would have eight to nine kilograms of cocaine and be guarded by two men, one armed

with a gun. Zayas discussed splitting the cocaine 50/50 with Alexander and whoever else

assisted with the robbery.

The following week, Alexander brought Nichols to meet with Zayas, who explained the

scenario to him. Zayas asked if Nichols knew what he was doing, and Nichols indicated that he

did. The next week, Alexander brought Maxwell to meet with Zayas, who again discussed the

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details of the plan and asked if the men needed a car to use on the day of the robbery. They said

that they did.

On the day of the proposed robbery, Alexander, Nichols, and Maxwell met the informant

on the east side of Cleveland, bringing along Chappell and Flowers. The informant drove the

men to meet Zayas at a CVS Pharmacy across town. On the video recording of the drive,

Alexander is sitting in the front seat and the other four defendants are in the back; both Flowers

and Nichols are holding firearms. When the vehicle arrived at the CVS, Zayas entered the car

and took approximately four minutes to describe the robbery to the men This was the first and

only time he spoke with Flowers or Chappell. At trial, Zayas testified that the Defendants spoke

about the plan, asked him questions, and were attentive. He again told them that the house

contained eight to nine kilograms of cocaine and was guarded by two men, one with a gun.

After the discussion, the informant drove the Defendants to a warehouse about three

blocks away where they were arrested after exiting the car. Chappell ran and climbed a fence but

soon surrendered to police at gunpoint. All of the Defendants had firearms except Chappell, but

Special Agent Daniel Forster testified that he heard and saw a firearm drop from Chappell’s

person while he was running.

On September 23, 2014, the Defendants were charged in an eleven-count indictment. All

five Defendants were charged with conspiracy to possess with intent to distribute five or more

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 (Count 2) and

with using or carrying a firearm during and in relation to a drug conspiracy, in violation of

18 U.S.C. § 924(c)(1)(A)(@) (Counts 3-7). Alexander was charged with distributing 5.5 grams of

heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1). Alexander and Nichols

were charged with being felons in possession of ammunition, in violation of 18 U.S.C.

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§ 922(g)(1) (Counts 8-9). Maxwell and Chappell were charged with being felons in possession

of a firearm and ammunition, in violation of 18 U.S.C. § 922(g) (Counts 10-11). Flowers had no

criminal record.

The Defendants moved for separate trials on the basis that a joint trial would compromise

their Sixth Amendment Confrontation Clause rights. Their motion was denied. The Defendants

also filed a pre-trial Motion to Preclude Sentence Enhancement, objecting to the ten year

mandatory minimum sentence because it was the result of sentencing manipulation and thus

violated due process. The district court indicated that this issue would be more appropriately

raised at sentencing. The Defendants were tried together before a jury.

The parties contested the amount of cocaine at issue in the conspiracy; the Defendants

argued that their intention and agreement was to take half of the cocaine and that the arbitrarily

selected amount of fictional drugs constituted sentencing manipulation. Zayas testified that the

fictional amount of cocaine originated in a conversation with Special Agent Johnson and the

local police department and that it was intended to mimic the average quantity in a Cleveland

stash house. Zayas had not seen any documentation confirming that number and Johnson was

not able to point to any when he testified.

During rebuttal closing argument, the prosecutor stated that every time jurors had been

asked to consider a lower amount of cocaine, they were being “invited to violate [their] oath as

jurors.” The Defendants moved for a mistrial, which was denied. At the close of evidence, the

Defendants moved for a judgment of acquittal, and renewed it after the defense rested. The

Defendants were convicted on all counts and, by Special Verdict Form, the jury found that the

amount of cocaine involved in the conspiracy was more than five kilograms, triggering a

mandatory minimum sentence.

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At sentencing, the district court overruled the Defendants’ sentencing manipulation and

due process objections. Alexander was sentenced to concurrent terms of 151 months of

imprisonment on Counts 1 and 2 and 120-months on Count 8, and a consecutive 60-month term

on Count 3. Nichols was sentenced to concurrent terms of 121 months of imprisonment on

Count 2 and 120 months on Count 9, and a consecutive term of 60 months on Count 4. Maxwell

was sentenced to concurrent terms of 121 months on Count 2 and 120 months on Count 10, and a

consecutive term of 60 months on Count 5. Chappell was sentenced to concurrent term of

121 months of imprisonment on Count 2 and 120 months on Count 11, and a consecutive term of

60 months on Count 6. Flowers was sentenced to 120 months on Count 2 and a consecutive term

of 60 months on Count 7.

The Defendants appeal their convictions and their sentences on various grounds.

Il. ANALYSIS

A. The outrageous government conduct defense

Alexander, Chappell, Maxwell, and Nichols challenge the district court’s denial of their

motion to dismiss the indictment based on outrageous government conduct. They argue that the

Government’s conduct “created and encouraged the defendants’ commission of the offense by

luring the impoverished . . . defendants with the promise of a large payoff, making repeated

requests for meetings over a short period of time, making repeated demands for their

commitment to the conspiracy, suggesting and enabling their possession of firearms, by

providing transportation via the confidential informant to a pre-robbery meeting, and by

providing them with a car to use for purposes of the robbery.” In examining whether the

indictment could have been dismissed based on this defense, we review the district court’s

conclusions of law de novo. United States v. Amawi, 695 F.3d 457, 483 (6th Cir. 2012).

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Under the outrageous government conduct defense, government involvement in a crime

may be “so excessive that it violates due process and requires the dismissal of charges against a

defendant even if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108,

121 (2d Cir. 2011). Under the defense, the government’s conduct alone could bar prosecution,

regardless of a defendant’s predisposition. United States v. Tucker, 28 F.3d 1420, 1422, 1424

(6th Cir. 1994). The outrageous government conduct defense is distinct from the defense of

entrapment, which focuses on a defendant’s intent or predisposition to commit the crime.

Sherman v. United States, 356 U.S. 369, 372 (1958) (“To determine whether entrapment has

been established, a line must be drawn between the trap for the unwary innocent and the trap for

the unwary criminal.”); Sorrells v. United States, 287 U.S. 435, 451 (1932).

In Tucker, we stated that “there is no authority in this circuit which holds that the

government’s conduct in inducing the commission of a crime, if ‘outrageous’ enough, can bar

prosecution of an otherwise predisposed defendant under the Due Process Clause of the Fifth

Amendment.” 28 F.3d at 1424. Thus, we have not adopted the due process defense of

inducement. United States v. Warwick, 167 F.3d 965, 974 (6th. Cir. 1999) (“[W]e have

consistently rejected defendants’ attempts to argue that the government’s conduct in inducing

them to commit the crimes charged was so outrageous as to deprive them of their constitutional

rights.”). We therefore affirm the district court’s denial of the motion to dismiss the indictment.

B. The entrapment defense

Flowers argues that his motion to dismiss should have been granted on indirect or

vicarious entrapment grounds, and that his trial counsel was ineffective for failing to seek an

entrapment jury instruction.

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ii Vicarious or indirect entrapment

Flowers argues that he lacked predisposition and that vicarious or indirect entrapment

justifies dismissal because he had no prior record, was employed, and was induced by his cousin.

The Government counters that Flowers was predisposed because he was not recruited by the

Government, brought a loaded firearm the day of the robbery, did not express hesitation, and did

not experience repeated or persistent Government solicitation.

This Court reviews a district court’s refusal to dismiss an indictment for an abuse of

discretion. United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001). The defense of

entrapment requires government inducement and a lack of predisposition to engage in the

criminal activity. United States v. Poulsen, 655 F.3d 492, 502 (6th Cir. 2011). Indirect or

vicarious entrapment occurs when “a person is brought into a criminal scheme after being

informed indirectly of conduct or statements by a government agent which could amount to

inducement.” United States v. McLernon, 746 F.2d 1098, 1108 (6th Cir. 1984) (quoting United

States v. Valencia, 645 F.2d 1158, 1168 (2d Cir. 1980)). In McLernon, we noted the concerns

involved when a private party serves as a third-party agent of the government, or when the

parties have a “special relationship” such that the “governmental pressure upon one member”

can “overcome the will of another member to a greater degree by virtue of that relationship.” Jd.

at 1108-09. The Sixth Circuit has “explicitly chosen not to adopt the doctrine of indirect

entrapment,” Poulson, 655 F.3d at 502; however, we have “upheld the entrapment defense where

the inducement is initiated by government officials or by private citizens acting as their agents

upon their instructions or directions,” McLernon, 746 F.2d at 1109. Here there is no evidence

that the Government used Alexander as a private agent in order to incriminate Flowers.

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Accordingly, the district court did not abuse its discretion in denying Flowers’s motion to

dismiss.

2. Ineffective assistance of counsel

Flowers argues that his trial counsel was ineffective for failing to seek an entrapment jury

instruction. This court reviews de novo a criminal defendant’s ineffective assistance of counsel

claim, which is a mixed question of law and fact. Mallett v. United States, 334 F.3d 491, 497

(6th Cir. 2003). We do not address these claims on direct appeal unless the “the existing record

is adequate to assess properly the merits of the claim.” United States v. Hynes, 467 F.3d 951,

969 (6th Cir. 2006) (quoting United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005)).

“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims

of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504 (2003).

Defense counsel for Flowers raised the issue of entrapment in a joint pretrial motion to

dismiss, which was denied. United States v. Alexander, No. 1:14 CR 341, 2015 WL 1523910, at

*3 (N.D. Ohio April 3, 2015). In a chambers conference that was not recorded, his defense

counsel informed the district court that they were not asking for the entrapment defense

instruction. Flowers argues that this constituted deficient and prejudicial performance, as

entrapment was essentially his only defense, especially considering that Flowers was in the

unique position among his co-Defendants of having no previous criminal record. Defense

counsel’s reasons for not requesting the entrapment instruction are not before us and the record is

not adequate to properly address the merits of this claim. This issue is more appropriately

resolved in a post-conviction proceeding.

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ie Confrontation Clause violation

Several Defendants argue that the introduction of a co-Defendant’s statement and

limitations on cross examination of federal agents violated their Sixth Amendment rights.

1. Co-defendant’s statement

Appellants Chappell, Maxwell, and Nichols argue that the introduction of incriminatory

testimonial statements from their co-defendant Alexander violated their rights under the

Confrontation Clause. We ordinarily review a district court's evidentiary rulings for an abuse of

discretion, United States v. Rodriguez—Lopez, 565 F.3d 312, 314 (6th Cir. 2009), but “review de

novo claims that the admission of evidence violated the Confrontation Clause,” United States v.

Johnson, 581 F.3d 320, 325 (6th Cir. 2009). Maxwell objected the second time the statement

was referenced during cross-examination, which is sufficient to preserve the issue.

An out-of-court statement made by a non-testifying co-defendant that inculpates another

defendant violates the Confrontation Clause, even when the court gives a limiting instruction.

Bruton vy. United States, 391 U.S. 123, 128-33 (1968). The Supreme Court has provided

additional guidance on this principle. In Richardson v. Marsh, 481 U.S. 200 (1987), the Court

held that the Confrontation Clause was not violated by the admission of a non-testifying codefendant’s statement with a limiting instruction because there the statement was “redacted to

eliminate not only the defendant’s name, but any reference to his or her existence.” 481 U.S. at

211. In Gray v. Maryland, 523 U.S. 185 (1998), the government redacted the co-defendant’s

confession by substituting a blank space or the word “deleted” for the defendant’s name in the

confession. 523 U.S. at 188. The Court explained that this testimony violated Bruton because it

still referred directly to the existence of the defendant. Jd. at 188, 191.

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A Sixth Amendment violation might be avoided in a joint trial if the defendant’s name is

redacted and a neutral term is substituted. In United States v. Vasilakos, 508 F.3d 401, 408 (6th

Cir. 2007), the government was prosecuting five defendants in “a multifaceted conspiracy in

which several individuals engaged in activities,’ and the non-testifying co-defendant’s

statements “did not ineluctably implicate” the other co-defendants. Jd. at 408. In Stanford v.

Parker, 266 F.3d 442, 456 (6th Cir. 2001), however, two defendants were on trial and the

government read a confession into evidence, replacing the name of the co-defendant with the

phrase “the other person.” Jd. at 457. The district court found a Bruton violation because the

jury would have concluded “the other person” referred to the co-defendant and we affirmed this

principle. Jd.

“Where a Bruton violation occurs, a court must then determine whether that violation is

harmless.” Jd. at 456. This entails determining whether the “minds of an average jury” would

have found the government’s case “significantly less persuasive” without the incriminating part

of the co-defendant’s statement. Jd. (quoting Hodges v. Rose, 570 F.2d 643, 648 (6th Cir.

1978)).

Before trial, all five Defendants moved for separate trials based on their concern that a

joint trial would compromise their Sixth Amendment Confrontation Clause rights. They stated

that all the Defendants gave custodial statements to federal agents or local police that implicated

other Defendants. Jd. The Government conceded that the post-arrest statements implicated

Bruton, but said it would redact the statements to alleviate any Sixth Amendment concerns. Jd.

The district court found this acceptable, noted that it could provide a limiting instruction, and

declined to sever the trials. Alexander, 2015 WL 1523910, at *5.

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None of the Defendants testified at trial. However, Detective Tom Hodous testified on

direct examination about Alexander’s post-arrest statement regarding whether the Defendants

planned to take half or all of the drugs:

Q: Okay. And did [Alexander] indicate that that understanding had changed at

some point?

HODOUS: Yes.

Q: And how had it changed?

HODOUS: He said that [Zayas] would not get any of the portion of the narcotics,

that they would take all of it.

(R. 181, PAGEID# 5477) (emphasis added). And again on redirect:

Q: And [Alexander] indicated to you that the agreement that he had with [Zayas]

was to split these bricks of cocaine half and half, is that fair?

HODOUS: That's correct.

Q: And in his interview, did he indicate whether he had provided that -- the details

of that agreement fo others?

HODOUS: Yes.

Q: Okay. And after having done that, did he indicate how the agreement between

him and others changed?

HODOUS: Yes.

Q: And what did he indicate they had come to the conclusion of as to what the

split would be at that point?

MS. PETTINELLI: Objection.

HODOUS: That they were not --

THE COURT: Overruled. Go ahead.

HODOUS: That there would not be a split and that they would take all the bricks

of cocaine.

(R. 181, PAGEID# 5498-99) (emphasis added). The Government referenced the statements in

closing argument: “The idea of the 50-50 split from Agent Zayas was never intended to happen

according to Kali Alexander.” The court did not give a limiting instruction during cross

examination or at the close of the evidence to indicate that the jury could not consider

Alexander’s post-arrest statements against the other Defendants.

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The Defendants argue that although the statement admitted did not refer to each of them

by name, it was an obvious reference to them. Just a few minutes earlier in his testimony,

Hodous said that Alexander identified “the other individuals that he had been arrested with” as

“Sheam, Terrance, Justin, and Cash.” The Government responds that the statement did not refer

to any Defendant by name, and, citing to Vasilakos, that in a multi-defendant conspiracy, it is

less clear to whom the terms refer. See 508 F.3d at 408.

As in Vasilakos, the statements admitted at trial used neutral terms and did not refer to

any defendants by name. But in Vasilakos, five defendants were on trial and the statement at

issue only referred to one individual. 508 F.3d at 405, 408. Here, the statement referred to an

unspecified number of people—shortly following the identification of the four other

Defendants—making it a likelier reference to the other Defendants who were on trial. The

Government notes that the Court in Gray suggested “[m]e and a few other guys [beat the

victim]” as an alternative to the improper redaction in the phrase “[m]e, deleted, deleted, and a

few other guys [beat the victim].” 523 U.S. at 196. But the language “a few other guys” is less

specific than “others” as stated at trial, especially when coupled with Alexander’s identification

of “the other individuals” as the four other Defendants just a few minutes earlier in Hodous’s

testimony.

Another issue implicates the Confrontation Clause. The analyses in Richardson, Gray,

and Vasilakos assume the presence of a limiting instruction. See, e.g., Richardson, 481 U.S. at

211 (holding that the Clause was not violated by a _ redacted confession

“with a proper limiting instruction”). Here, no limiting instruction was given to the jury at any

point. See Mikesell v. Conley, 51 Fed. App’x 496, 505 (6th Cir. 2002) (“There is a real problem

lurking here, nevertheless—one that removes the case from the permissible practice described in

49.

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Richardson and brings it within the realm of Bruton: the trial court did not instruct the jury that

it was to consider [the co-defendant’s] statement only against her, and not against [the

defendant].”).

The testimony given in this joint trial of five Defendants raises Confrontation Clause

problems. On this record, however, there was sufficient evidence that the total amount of

cocaine involved in the conspiracy was between eight and nine kilograms. See United States v.

Robinson, 547 F.3d 632, 636-37 (6th Cir. 2008); United States v. Watson, 620 Fed. App’x. 493,

508-09, 510 (6th Cir. 2015) (stating that “the relevant quantity of drugs is the quantity involved

in the overall conspiracy”). Given the evidence regarding the quantity of the cocaine involved in

the conspiracy, we cannot say that the average juror would have found the government’s case

“significantly less persuasive” without the incriminating part of the co-defendant’s statement.

Stanford, 266 F.3d at 456 (quoting Hodges, 570 F.2d at 648). Thus, any violation was harmless

error.

a. Limitations on cross examination of federal agents

Maxwell and Chappell further allege that the district court improperly limited their cross

examination of Agents Zayas and Johnson. Exclusion of evidence is examined for an abuse of

discretion, reviewing conclusions of law de novo and factual determinations for clear error.

United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006). “[T]rial judges retain wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . crossexamination.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

The Defendants argue that their right to confrontation was violated by unreasonable

limitations preventing them from: 1) impeaching the credibility of the agents’ claimed reason for

selecting the quantity of cocaine; and 2) cross-examining Zayas on the credibility of his

=) 4.

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testimony that there was an understanding that Defendants would take all the drugs, then

distribute half of the drugs back to him “subsequently.”

The Defendants argue that they were not trying to inform the jury of the potential

sentence, rather they were trying to elicit factual information to support their sentencing

manipulation argument:

Q: The amount of drugs, 4 kilos versus 9 kilos, is significant in Federal Court in

criminal cases, correct?

MS. GALVIN: Your honor, I’m going to object and ask for a sidebar.

THE COURT: Sustained.

(R. 180, PageID# 5258).

Q: ... [A]re you familiar with Title 21 of the United States Code?

A: Yes.

Q: Okay. And so, you’re familiar with the federal laws as it relates to controlled

substance offenses?

MR. FLANNERY: Objection, Judge.

THE COURT: Sustained.

(R. 182, PagelID# 5573).

A jury should “reach its verdict without regard to what sentence might be imposed.”

Shannon v. United States, 512 U.S. 573, 579 (1994) (quoting Rogers v. United States, 422 U.S.

35, 40 (1975)). “[A]s a general matter, jurors are not informed of mandatory minimum or

maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range

accompanying a lesser included offense.” Jd. at 586-87. Upon review of the record, the

Defendants were prevented from continuing their line of questioning when it delved into territory

that might have informed the jury about the potentially increased sentences they were facing.

Additionally, it appears trial counsel for Alexander did cross-examine Zayas regarding his

statements about the agreement and when he would get his half of the cocaine. The district

court’s limitation on cross examination does not rise to the level of an abuse of discretion.

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D. Prosecutorial misconduct

Alexander, Chappell, Maxwell, and Nichols contend that the Government engaged in

misconduct when the prosecutor: 1) told the jury that it would not be at this trial if the ATF had

done something illegal; and 2) said that the jury was being “invited to violate [its] oath” anytime

defense counsel suggested that jurors consider an amount of cocaine less than eight or nine

kilograms. Defendants thus argue that the prosecutor engaged in misconduct by committing

improper vouching and by impugning the integrity of defense counsel, respectively.

Whether a prosecutor's statements at trial amount to misconduct, and whether the

statements render a trial fundamentally unfair, are “mixed questions of law and fact, which we

review de novo.” United States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009). We view the

conduct within the context of the entire trial. United States v. Francis, 170 F.3d 546, 552 (6th

Cir. 1999). In considering this issue, the “relevant question is whether the prosecutors’

comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 644 (1974)). To evaluate a claim of prosecutorial misconduct, we

first determine whether the statements were improper. Carson, 560 F.3d at 574. If so, we

determine if the remarks were flagrant, warranting reversal. Jd. To determine flagrancy, we

look to four factors: “(1) whether the conduct and remarks of the prosecutor tended to mislead

the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or

extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the

evidence against the defendant was strong.” Jd. (quoting United States v. Carter, 236 F.3d 777,

783 (6th Cir. 2001).

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“To reverse a conviction because of an improper non-flagrant statement, a reviewing

court must determine that: 1) the proof of the defendant's guilt is not overwhelming; 2) the

defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to

admonish the jury.” Francis, 170 F.3d at 550.

The Defendants argue that the prosecutor impugned the integrity of defense counsel by

suggesting that the defense invited the jury to violate its oath:

[GOVERNMENT]: After all the argument that you've heard and have been

presented with, I'm going to stick to the law and I'm going to stick to your

common sense, because every single one of you has just been invited to violate

your oath, your oath as jurors, that you would consider the facts of the case, the

evidence and the testimony presented, and the law supplied by the Court.

You have been invited to consider things that you are not allowed to consider.

And the way that you know that you are not allowed to consider them is because

it will be in the jury instructions.

Nowhere in there does it say that a defendant must have agreed to 8 to 9

kilograms. This is one of the most important points. Every single person that

invited you to consider 4 kilograms is asking you to violate your oath as jurors.

MR. DIXON: Objection.

MR. MACK: Objection.

THE COURT: It's argument. Overruled.

[GOVERNMENT]: This is the jury instruction you're going to receive. This is

exactly verbatim. “This does not require proof that the defendant knew that the

drug involved was cocaine. It is enough that the defendant knew that it was some

kind of controlled substance, nor does this require proof that the defendant knew

how much was involved. It is enough that the defendant knew that some quantity

was involved.”

Every time it was suggested that you consider 4 kilograms of cocaine, you were

invited to violate your oath. Your oath requires to you consider these jury

instructions.

MR. FATICA: Objection, Your Honor.

THE COURT: Overruled. It's argument.

(R. 182, PAGEID# 5695-96, 5698-99) (emphasis added).

The Defendants also argue that the prosecutor committed improper vouching in the

rebuttal closing argument, by “suggesting to the jury that the Court had made a pretrial

determination of the propriety of the ATF’s conduct in this case.”

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[GOVERNMENT]: Do you honestly believe anyone of us would be here right

now if they had done something illegal? We wouldn't be here, ladies and

gentlemen. These cases have been conducted across the country. They have been

presented to juries across the country.

MR. MACK: Objection, Your Honor.

THE COURT: Sustained.

[GOVERNMENT]: You would not be here if in this instance this Court had found

that ATF had somehow violated the law.

MR. MACK: Objection again.

THE COURT: Overruled.

(R. 182, PageID#5696). At the close of the Government’s rebuttal argument, all five Defendants

moved for a mistrial based on the prosecutor’s statements, which was denied.

Both challenged statements occurred in the Government’s rebuttal argument. A

prosecutor’s statement to the jury that a defense argument is an invitation for jurors to “violate

their oaths” is the more concerning. In cases charging a conspiracy, it is the province of the jury

to determine if a conspiracy existed, its specific objectives, and who participated in it. Here, in

addition to its general verdict, the jury was given a special interrogatory regarding the quantity of

drugs involved—the issue addressed in the defense argument challenged. We find these

comments improper.

We must next determine whether the prosecutor’s statements were flagrant. The

repetition of the remarks during rebuttal closing argument suggests that it was unlikely that they

were accidental, and, as the statements were the last thing the jury heard from the attorneys and

the Defendants did not have a chance to respond, may have been misleading to the jury. See

Carter, 236 F.3d at 788. Both the test for flagrancy and the test determining whether an

improper but non-flagrant statement should result in reversal of a conviction, however, consider

the total strength of the evidence against the defendant. Francis, 170 F.3d at 550. The evidence

of the Defendants’ participation in the conspiracy to rob a stash house of a significant quantity of

drugs was strong. Defendants, moreover, were not ultimately prejudiced regarding the drug

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amount. See Robinson, 547 F.3d at 636-38; Watson, 620 Fed. App’x. at 508-09, 510. Under the

governing tests, therefore, we decline to reverse the convictions because “proof of the

[Defendants] guilt [was] overwhelming” as it related to the conspiracy. Francis, 170 F.3d at

550.

E. Sentencing issues

1. Sentencing manipulation and sentencing entrapment

The Defendants argue that the Government’s conduct in establishing the quantity of

cocaine constitutes sentencing manipulation or sentencing entrapment in violation of

fundamental fairness and their Fifth Amendment due process rights. We review constitutional

challenges to a sentence de novo. United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010).

Prior to trial, the Defendants filed a joint motion seeking to preclude the enhancement of

their sentences based upon the fictional amount of cocaine involved, alleging that it was selected

specifically to increase their sentences. The trial court deferred ruling on the motion, finding it

more appropriate to address at sentencing. At the sentencing hearing, the court overruled the

objection, reasoning that the Sixth Circuit has not recognized sentencing entrapment or

sentencing enhancement. The Defendants request this court to expressly recognize sentencing

manipulation.

“Sentencing entrapment is similar to the subjective theory of entrapment and ‘focuses on

the defendant’s lack of predisposition to commit the greater offense.’” United States v.

Hammadi, 737 F.3d 1043, 1048 (6th Cir. 2013) (citing United States v. Strickland, 342 Fed.

App’x 103, 107 (6th Cir. 2009)). On the other hand, sentencing manipulation “tracks the

objective theory of entrapment, and ‘focuses on the [g]lovernment’s conduct.’” Jd. (citing

Strickland, 342 Fed. App’x at 107). The Sixth Circuit has not yet recognized either sentence

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manipulation or sentence entrapment. Hammadi, 737 F.3d at 1048 (6th Cir. 2013) (noting that

under the facts of the case, it “need not decide whether to adopt or reject these doctrines”). We

decline to resolve that question here and leave it for another day.

2. Consideration of § 3553(a) factors

Alexander argues that his sentence was procedurally unreasonable because the district

court failed to consider his request for a downward departure under the sentencing manipulation

argument and because the district court did not adequately discuss or apply the 18 U.S.C.

§ 3553(a) factors. The sentence itself is reviewed for reasonableness, under an abuse of

discretion standard. See Gall v. United States, 552 U.S. 38, 46, (2007). The sentence ultimately

chosen by the court may be unreasonable if the court committed significant procedural error,

“such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Jd. at 51. “[T]he question is whether

[t]he record makes clear that the sentencing judge listened to each argument,’ ‘considered the

supporting evidence,’ was ‘fully aware’ of the defendant's circumstances and took ‘them into

account’ in sentencing him.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en

banc) (quoting Rita v. United States, 551 U.S. 338, 358 (2007)).

Alexander first argues that the district court should have considered sentencing

entrapment when determining his sentence. This issue was briefed, and the district court heard

argument at the sentencing hearing but overruled the objection because “the Sixth Circuit has

repeatedly noted that it has never recognized sentencing entrapment or sentencing enhancement.”

As noted, we decline to resolve those issues here and leave them for another day.

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Alexander’s second contention is that the court failed to meaningfully apply the

§ 3553(a) factors. The court stated that it thoroughly reviewed the pre-sentence investigation

report, the sentencing memorandum, and the response to the memorandum. At the sentencing

hearing, Alexander’s trial counsel brought up his background, drug addiction, and poverty. The

district court discussed the nature of the conduct, § 3553(a)(1), and the need for a harsher

punishment in light of the crime and the intention to use firearms in the home, § 3553(a)(2). It

noted the need to send a message to the community about this kind of activity, and that this “very

significant sentence” reflected the seriousness of the crime. § 3553(a)(2). The court did not

discuss directly the kinds of sentences available, but did instruct Alexander to participate in drug

treatment and work toward a GED after release. § 3553(a)(3). It discussed the sentencing range

based on the guidelines. Additionally, the court heard argument and ruled that Alexander should

not be afforded acceptance of responsibility, but also ruled that he would not receive the fourlevel enhancement for his role as an organizer/leader in the offense, pursuant to USSG

§3B1.1(a). § 3553(a)(4).

The district court did not mention the factors by name, though it appeared to hear

argument or consider many of them. Clearer reference to the factors is preferable, and the court

also might have addressed the guideline policy statements and the need to avoid unwarranted

sentencing disparities, § 3553(a)(5) & (6). Our cases do not require a “ritualistic incantation of

the § 3553(a) factors.” See United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005). Here

the court’s review of the factors was adequate. Alexander’s sentence was procedurally

reasonable.

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F. Sufficiency of the evidence

1. Drug quantity

Maxwell, Nichols, and Chappell argue that there was insufficient evidence supporting the

jury’s drug quantity determination. They contend that because the agreement was to rob the

stash house and split the eight to nine kilograms of cocaine equally between the Defendants and

Zayas, they could only be found responsible for between four and four and a half kilograms of

cocaine. We review de novo the district court's denial of the Defendants’ motions for judgment

of acquittal challenging the sufficiency of the evidence. United States v. Tocco, 200 F.3d 401,

424 (6th Cir. 2000). We view the evidence in the light most favorable to the Government and

then consider whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jd. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

“[W]e do not weigh the evidence, assess the credibility of the witnesses, or substitute our

judgment for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994),

Instead, we resolve all credibility issues in favor of the verdict and draw every reasonable

inference in favor of the prosecution. United States v. Salgado, 250 F.3d 438, 446 (6th Cir.

2001). “[A]ny fact that increases the mandatory minimum is an ‘element’ that must be submitted

to the jury.” Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).

Zayas testified that his understanding of the plan was that the Defendants would

distribute half of the drugs to him “subsequent” to robbing the entire amount. There was

evidence in the record showing that the amount of cocaine involved in the conspiracy was

between eight and nine kilograms. See Robinson, 547 F.3d at 636-37; Watson, 620 Fed. App’x.

at 508-09, 510 (6th Cir. 2015) (stating that “the relevant quantity of drugs is the quantity

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involved in the overall conspiracy”). Taken in the light most favorable to the Government, there

was sufficient evidence to support the jury’s drug amount determination.

bs Chappell’s convictions

Chappell also asserts that the evidence admitted at trial was not sufficient to establish

beyond a reasonable doubt that he joined the conspiracy to possess with intent to distribute five

kilograms or more of cocaine or that he carried a firearm during, and in relation to, a drug

trafficking crime. In support, Chappell argues that he knew Alexander for only a few days,

Zayas spent only a brief time with him, Chappell was not paying attention during the

conversation in the car, and he did not walk towards the vehicle that was going to be used in the

robbery when the men exited the car. The Government responds that Chappell was in the car

carrying a loaded firearm, Zayas explained the details of the plan and Chappell participated in

that conversation, and that Zayas offered Chappell a chance to withdraw and he did not.

Chappell also argues that there was insufficient evidence to show that he carried a firearm in

relation to the conspiracy, stating that the gun was for his protection. The Government responds

that Chappell brought his weapon, knew that there would be an armed guard at the house, and

did not surrender his weapon when asked if he wanted to back out of the plan.

Taken in the light most favorable to the Government, we find that there was sufficient

evidence for a rational jury to find that Chappell committed the charged offenses. See Tocco,

200 F.3d at 424.

G. Motion to sever felon in possession charge

Chappell argues that the court improperly denied his motion to sever his felon in

possession of a firearm and ammunition charge from his drug conspiracy and knowingly using or

carrying a firearm during and in relation to a drug conspiracy charges.

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The denial of a motion to sever is reviewed for abuse of discretion. United States v.

Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996). Because Chappell failed to renew his motion to

sever at the close of evidence, we review for plain error. United States v. Lopez, 309 F.3d 966,

971 (6th Cir. 2002). Plain error requires: (1) an error; (2) that was plain; and (3) affected

substantial rights. See United States v. Richards, 659 F.3d 527, 546 (6th Cir. 2011). If these

three conditions are met, we may exercise our discretion only if the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Jd. (citations omitted).

Chappell’s argument centers around language in the district court’s order denying

severance, which uses the incorrect standard “in furtherance of” the drug conspiracy, instead of

the correct standard “during, and in relation to” a drug conspiracy. The jury did not read this

order and the proper language was used at trial. There was a sufficient connection for the

offenses to be tried together, in light of the preference for joint trials of defendants who are

indicted together in the federal system. Zafiro v. United States, 506 U.S. 534, 537 (1993). We

affirm the district court’s denial of Chappell’s motion to sever.

H. Jury verdict form

Chappell argues that Count 6 of the jury verdict form failed to specify that the predicate

drug trafficking offense must be the one alleged in the indictment. Because Chappell failed to

object to the verdict form in district court, we review for plain error. Lopez, 309 F.3d at 971.

Chappell’s concern is that because the verdict form failed to specifically list the drug conspiracy

that he was charged with in Count 2, the jury could have been misled and convicted him for

using or carrying a firearm in order to commit a home invasion robbery. Chappell was never

charged with robbery, however, only with drug conspiracy. There was no plain error in the jury

verdict form.

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I. Confidential informants

Nichols argues that the statements of confidential informants were hearsay, the court

should have disclosed the identity of the informants, and the jury instructions regarding the

confidential informants were defective.

1. Hearsay

We review a district court’s evidentiary rulings for abuse of discretion. United States v.

Wright, 343 F.3d 849, 865 (6th Cir. 2003). “We have . . . sanctioned the use of . . . out-of-court

[informant] statements to the extent that they are ‘only offered to construct the sequence of

events leading up to the drug transaction.’” United States v. Aguwa, 123 F.3d 418, 421 (6th Cir.

1997) (citing United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989)).

Nichols does not point us to any specific hearsay statements in the record. He argues

generally that the informants’ statements were hearsay because they were testimonial out-ofcourt statements offered against an accused to establish the truth of the matter asserted. The

Government responds that the statements were offered to provide background information and

were not for the truth of the matter asserted. In light of the generality of this claim and the

standard of review, the district court did not abuse its discretion in admitting these statements.

2. Disclosure of confidential informants’ identities

Nichols also argues that the court should have ordered disclosure of the identities of the

confidential informants. The decision whether to disclose the identity of confidential informants

is generally left to the discretion of the trial court. United States v. Cummins, 912 F.2d 98, 103

(6th Cir. 1990). A court must balance public interest against the defendant’s “right to prepare his

defense,” “the particular circumstances of each case, taking into consideration the crime charged,

the possible defenses, the possible significance of the informer’s testimony, and other relevant

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factors.” Roviaro v. United States, 353 U.S. 53, 62 (1957). “[D]anger to the informant’s life

must be given significant weight in striking the Roviaro balance.” United States v. Straughter,

950 F.2d 1223, 1232 (6th Cir. 1991). The defendant has the burden “to show how disclosure of

the informant would substantively assist his defense.” United States v. Moore, 954 F.2d 379,

381 (6th Cir. 1992).

Nichols argues that the confidential informants directly engaged in the illegal activity and

had contact with Nichols and other Defendants outside the presence of law enforcement. He

alleges that these witnesses are the only people who could “controvert, explain, or amplify

Zayas’s and Johnson’s report of these important conversations” in the car and that their evidence

would have been helpful to the defense. The court found that the Defendants failed to provide

specifics on how disclosure would assist their defense. It also reviewed documents from the

Government in camera that showed disclosure would pose “grave danger” to the informants’

safety. In balancing the factors, we find that the district court did not abuse its discretion.

a Jury instructions

Nichols argues that the jury instructions regarding evidence from the confidential

informants were defective. We review a decision not to give a requested instruction for abuse of

discretion, United States v. Henderson, 626 F.3d 326, 342 (6th Cir. 2010), but because Nichols

failed to object to the instructions or to request specific instructions on informant testimony, we

review for plain error.

Nichols argues that the jury should have been instructed to view the evidence about what

the informants did or said with great caution, considering the benefits the informants expected to

receive from the Government. The Government responds that any instruction would have been

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confusing because the informants did not testify at the trial. The district court generally

instructed the jury on witness credibility in the following way:

Ask yourself if the witness had any relationship to the government or any of the

defendants or anything to gain or lose from the case that might influence the

witness’s testimony. Ask yourself if the witness had any bias or prejudice or

reason for testifying that might cause the witness to lie or to slant the testimony in

favor of one side or the other.

(R. 182, PAGEID# 5714).

In United States v. Wheaton, 517 F.3d 350, 362 (6th Cir. 2008), the court found no plain

error when the jury was given a similar instruction regarding witness bias and credibility, though

no specific instruction was given in regard to informant testimony. We find no plain error

occurred here.

J. Cumulative effect of errors

Nichols contends that even if each individual error did not constitute reversible error, the

cumulative effect of the errors rendered the trial fundamentally unfair in violation of due process.

This court reviews the cumulative effect of harmless errors for whether they were “so

prejudicial” as to render the trial “fundamentally unfair.” Walker v. Engle, 703 F.2d 959, 963

(6th Cir. 1983). We cannot say that the harmless errors here, even if accumulated, rendered the

trial fundamentally unfair.

Ill. CONCLUSION

For the foregoing reasons, we AFFIRM the Defendants’ convictions and sentence.

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JANE B. STRANCH, Circuit Judge, concurring. I write separately to express my

discomfort with the governmental operation known as a “stash house sting.” The sting that

targeted these Defendants is one in a long list of nearly identical operations conducted by the

ATF across the country. Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare Suspects, USA

Today (June 28, 2013, 11:26 AM), https://www.usatoday.com/story/news/nation/2013/06/27/atfstash-houses-sting-usa-today-investigation/2457109/ (noting that more than 600 individuals

have been prosecuted following similar “stash house stings”). Because these stings are wholly

inventions of law enforcement agents, they can and do include powerful inducements to

participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory

minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a

disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide

all needed assistance, from manpower to transportation. The unseemly nature of the

Government’s activity is emphasized by its failure to achieve its declared goals of jailing

dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups

achieve the stated goals was not proffered and the facts here demonstrate why: no known

dangerous individuals or criminal enterprises were researched or targeted and no pre-existing

drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully

employed young man with no criminal record. We have this result because informants were

simply sent out into the community to gather information and find someone who would bite at

the opportunity to make loads of money quickly. And, in line with sting statistics, the men

recruited here were all African American and all from impoverished areas—as are the

overwhelming number of stash-house-sting targets across the nation.

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This concerning ATF tactic has rightly drawn criticism in news reporting, scholarly

writing, and from the judiciary. An investigative report from USA Today explored the risks and

high costs associated with the stings, and the assurance that defendants involved would receive

lengthy sentences. Heath, supra (“USA TODAY reviewed thousands of pages of court records

and agency files, plus hours of undercover recordings. Those records—many of which had never

been made public—tell the story of how an ATF strategy meant to target armed and violent

criminals has regularly used risky and expensive undercover stings to ensnare low-level crooks

who jump at the bait of a criminal windfall.”)

Scholarly writing has also criticized the stings, noting that the government does not have

to “target existing criminal enterprises or have prior suspicion of potential targets,” that it has

“full control over the amount of time its targets spend in prison because it can specify the amount

of drugs involved in the fictional conspiracies,” and that the tactic has a disproportionate effect

on poor minority defendants. See Marc D. Esterow, Note, Lead Us Not into Temptation: Stash

House Stings and the Outrageous Government Conduct Defense, 8 Drexel L. Rev. 1, 28-31

(2016); United States v. Kindle, 698 F.3d 401, 414 (7th Cir. 2012) (Posner., J, concurring and

dissenting) (citing Katherine Tinto, Undercover Policing, Overstated Culpability, 34 Cardozo L.

Rev. 1401 (2013)) (referring to these stings as a “disreputable tactic” and noting that “[l]Jaw

enforcement uses them to increase the amount of drugs that can be attributed to the persons

stung, so as to jack up their sentences”). The effect on poor minority communities is the subject

of litigation in the United States District Court for the Northern District of Illinois, where a

recently filed expert report concludes that there was a clear pattern of racial disparities in Illinois

sting cases, and finds that the disparities are inexplicable on grounds other than race. Report of

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Jeffrey Fagan, Ph.D., 1:12-cr-00632, R. 510-2. A motion to dismiss based on racially selective

law enforcement is currently pending in that court. R. 518.

Despite increasing awareness of the problems and inequities inherent in fictitious stash

house stings, at issue here is whether an appropriate legal path exists for a defendant to

successfully challenge the stings. A majority of circuits have recognized the outrageous

government defense, but impose such a high burden on defendants that the defense rarely results

in dismissal of charges. See United States v. Guzman, 282 F.3d 56, 59 (1st Cir. 2002); United

States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011); United States v. Twigg, 588 F.2d 373, 377

(3d Cir. 1978); United States v. Hasan, 718 F.3d 338, 343 (4th Cir. 2013); United States v.

Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003); United States v. Boone, 437 F.3d 829, 841 (8th Cir.

2006); United States v. Black, 733 F.3d 294, 303-04 (9th Cir. 2013); United States v. Dyke, 718

F.3d 1282, 1287 (10th Cir. 2013); United States v. Augustin, 661 F.3d 1105, 1122-23 (11th Cir.

2011); United States v. Hsia, 81 F. Supp. 2d 7, 19 (D.D.C. 2000).

In United States v. Black, the Ninth Circuit examined a stash house sting and, despite

reservations, affirmed the district court’s determination that the operation did not constitute

outrageous government conduct because the defense is “limited to extreme cases” where the

government’s conduct is “so grossly shocking and so outrageous as to violate the universal sense

of justice.” 733 F.3d at 298, 302. There, the same ATF agent, Richard Zayas, orchestrated a

sting, telling a familiar story: he was a disgruntled drug courier who suggested robbing a

cocaine stash house guarded by two men, at least one of whom would be armed. Jd. at 298-301.

The day of the proposed robbery, the defendants arrived at the agreed upon location and were

arrested, then convicted of conspiracy to possess cocaine with intent to distribute and use of a

firearm in furtherance of a drug trafficking offense. Jd. at 297-98.

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