Petition for Writ of Certiorari — Turner v. United States (No. 07-741)

Supreme €

C4 P F I ha -a': toa

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(D 07-741 NOV 29 2007

No. 07- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DAVID A. TURNER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE First CIRCUIT

mr ee a

PETITION FOR A WRIT OF CERTIORARI

Martin G. WEINBERG Rospert M. GOLDSTEIN

Counsel of Record 20 Park Plaza

Martin G. WEINBERG, PC. Suite 903

20 Park Plaza Boston, MA 02116

Suite 905 (617) 742-9015

Boston, MA 02116 rmg@goldstein-lawfirm.com

(617) 227-3700

owlmcb@att.net

Counsel for Petitioner

212593 co

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

QUESTION PRESENTED

Can a Hobbs Act conspiracy, codified at 18 U.S.C.

§ 1951, which does not have an overt act as an element of

proof, serve as the “crime of violence” predicate for a 30

year enhanced sentence pursuant to 18 U.S.C. § 924(c)?

il

TABLE OF CONTENTS

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Table of Cited Authorities ...................

PO nos cnncenesdesd wanee ae Sees

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Constitutional and Statutory Provisions Involved

“see eeeeeneeeneeneneeeeee eee eeeeeeeeeeeeeereeee

mtatementofthe Case .........scsesesencces

Reasons for Granting the Petition ............

1. A Hobbs Act conspiracy is not a “crime of

MO, es ban vad dees eeaseeee eae

A. The charges and relevant statute. ..

B. The Court reserved judgment on the

issue presented herein in its decision

last term in James v. United States.

*eeeevreeeeeeevreeeeeeeeeeeeeeeeeeeee

C. The lower court erred in considering

risks presented by the object of the

conspiracy, which is a crime separate

from the Hobbs Act conspiracy.

D. Legislative History. ..............

PETC E TTT Ee ore

Appendix A — Opinion Of The United States

Court Of Appeals For The First Circuit

Decided August 31, 2007 ...............0..

~]

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lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Bailey v. United States, 516 U.S. 137, 1168. Ct.

501, 133 L. Ed. 2d 472 (1995) .............. 13

Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120,

RBG 1... ik. SO ZG CHIE) nc ce eke enceseses 14

James v. United States, 127 S. Ct. 1586 (2007)

PPPOE Le PO ree er One 6, 9, 10, 11, 14

Leocal v. Asheroft, 1258. Ct. 377 (2004) ....... 13, 14

Shepard v. United States, 125 S. Ct. 1254 (2005)

LACREeL AMS CREED es ee 14

United States v. Booker, 1258S. Ct. 738 (2005) .. 14

United States v. Brawn, 200 F.3d 700 (10th Cir.

| CTT ERET COTTE CECT eC rere ee 12

oS ee ery rrr rere rrr errr 8

United States v. Drougas, 748 F.2d 8 (ist Cir.

Pee Ree DBPL R aN sy Mame naa pei 8

iv

Cited Authorities

Page

United States v. Egemonye, 62 F:3d 425 (1st Cir.

EE 54s oo ee ood cy kc eke OAR es ee ee 12

United States v. Elder, 88 F.3d 127 (2d Cir. 1996)

Sees kyle ee ka ce ee ee ees 5

United States v. Johnson, 399 F.3d 1297 (11th Cir.

EP ern re re pe Se rer eee 14

United States v. King, 979 F.2d 801 (10th Cir.

aria er teak th a ne cat, Steeda 5, 12, 15

United States v. LiCausi, 167 F.3d 36 (1st Cir.

NS Cae eae NEA keane aeenae eed ses 8

United States v. Martinez, 954 F2d 1050 (5th Cir.

I ak rede kas Pl eee aaa eae ees 11

United States v. Mendez, 992 F.2d 1488 (9th Cir.

Ry or ee ain ee way ee ne odie gids 5

United States v. Patterson, 644 F2d 890 (1st Cir.

he ag he na aie na eee ea eee aces 8

United States v. Permenter, 969 F2d 911 (10th

ED o5 cena ee eee ee ees ee es 10

United States v. Phan, 121 F3d 149 (4th Cir. 1997)

oesvveeveteeveeeveeeeeeeerteeeeeeeseeeeeeeee eee © &

On

V

Cited Authorities

Page

United States v. Singleton, 182 F.3d 7 (D.C. Cir.

gs cag ks wa ead 04a os ws 14

United States v. Strahl, 958 F.2d 980 (10th Cir

ee aad esa ck borane 10

United States v. Taylor, 176 F.3d 331 (6th Cir

ES 5,14

United States v. Weekley, 24 F.3d 1125 (9th Cir

a aah aka sis es denne 11

Statutes:

nS 13

ek wks acces aecees’s 8,12

8 3

ee ca ncn snes scensascssece 15

rr 9

LE ES passim

RE ES 8) 1

Wee ECR) 2.5... ow. cece cane 15

Cited Authorities

Page

5B U.E.C. SSRI NET) 2... ccc cccccncces 7

SSR EES occ tn cescanesccccas 2, 4, 7, 8,13

LER Tee SC) | 6 rr 7,8

TB UB.C. SGRMCKENB) 2.2... .c ccc ccc scene. 8,13

18 U.S.C. §924(e)(2)(B)ii) «1.2... eee ee eee 9

eee ew wnkbeesecceessseees i, 2, 3, 7

EE ee kbs dss n000 ke dee sconces i

S.52, 98" Cong., 2d Sess. § 2 (1984) ........... 15

S.1688, 97" Cong., 2d Sess. § 2 (1982) ......... 15

S.155, 109" Cong., 1* Sess. §209 (2005) ........ 15

EE Ore reer eee Terre 12

Other Authorities:

Pattern Jury Instructions, First Circuit,

Criminal Cases, § 4.16, Comment 3 (1998) .. 8

]

Petitioner David A. Turner (“Turner”) respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the First

Circuit in this case.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

First Circuit (App. la-27a) is reported at 501 F3d 59

(1st Cir. 2007). The opinion of the U.S. District Court

for the District of Massachusetts is unreported.

JURISDICTION

The First Circuit entered its judgment on August

31, 2007. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL ANP STATUTORY

PROVISIONS IN OLVED

The relevant portion of Title 18 U.S.C. § 924(c)(1)

provides:

(A) Except to the extent that a greater

minimum sentence is otherwise provided by

this subsection or by any other provision of

law, any person who, during and in relation

to any crime of violence ... for which the

person may be prosecuted in a court of the

United States, wses or carries a firearm, or

who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the

punishment provided for such crime of

2

violence .. . (B) Ifthe firearm possessed by a

person convicted of a violation of this

subsection ... (ii) is a machinegun or a

destructive device ... the person shall be

sentenced to a term of imprisonment of not

less than 30 years.

The relevant portion of Title 18 U.S.C. § 924(c)(3)

provides:

For purposes of this subsection the term

“crime of violence” means an offense that is a

felony and (A) has as an element the use,

attempted use, or threatened use of physical

force against the person or property of

another, or (B) that by its nature, involves a

substantial risk that physical force against the

person or property of another may be used in

the course of committing the offense.

The relevant portion of Title 18 U.S.C. § 1951

provides:

Whoever in any way or degree obstructs,

delays, or affects commerce or the movement

of any article or commodity in commerce, by

robbery or extortion or attempts or conspires

so to do,... shall be fined under this title or

imprisoned not more than twenty years, or

both.

3

STATEMENT OF THE CASE

On March 24, 1999, Turner was named in an

indictment charging him with six counts, including

(1) conspiracy to affect commerce by robbery in violation

of 18 U.S.C. § 1951, referred to as a Hobbs Act conspiracy

(count 1), (2) carrying a firearm (a grenade) in relation

to a “crime of violence” in violation of 18 U.S.C. § 924(c)

(count 3), and (3) carrying a firearm (several specified

firearms) in relation to a “crime of violence” in violation

of 18 U.S.C. § 924(c) (count 4).' For each of these three

charged crimes, the Hobbs Act conspiracy was identified

as the predicate “crime of violence.”

A jury trial began on September 24, 2001. Turner

presented an entrapment defense—froin the inception

of this prosecution, Turner contended that two FBI

agents, through their informant, targete 1 and entrapped

him because they believed he could facilitate the return

of the priceless paintings stolen from the Isabella

Stewart Gardner Museum if Turner faced sufficiently

serious criminal charges. The jury rejected the

entrapment defense and found Turner guilty on all

counts.

As for the underlying facts in this case, they were

not seriously in dispute. Through their informant and

several staged events, the government persuaded the

1. Turner was also charged with: (1) attempt to affect

commerce by robbery in violation of 18 U.S.C. § 1951 (count 2),

(2) being a felon in possession of a firearm (the grenade) in

violation of 18 U.S.C. § 922(g)(1) (count 5), and (3) being a felon

in possession of a firearm (several specified firearms) in violation

of 18 U.S.C. § 922(g)(1) (count 6).

4

defendants there was an insider ready to open the doors

to the Loomis Fargo facility located in Easton,

Massachusetts. On the morning the defendants were to

gather for the alleged armed robbery, they were al!

arrested, literally miles away from the object of the

conspiracy (7.e., the Loomis Farge facility). The robbery

was a factual impossibility because there was no insider

and, obviously, no one would be waiting there to let them

inside the building.

Before trial, Turner moved to dismiss counts 3 and

4, contending that a Hobbs Act conspiracy can not qualify

as a “crime of violence” under § 924(c), especially

considering that a Hobbs Act conspiracy does not have

an overt act as an element of proof. Section 924(c) defines

“crime of violence” as a felony that (A) has as an element

the use, attempted use, or threatened use of physical

force against the person or property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

The district court denied the motion. The defendant

moved for a judgment of acquittal on the same grounds,

which too was denied by the district court. On appeal,

the First Circuit rejected the contention as well,

expressing agreement with the following explanation by

the Second Circuit when it confronted the issue:

A conspiracy, by its very nature, is a collective

criminal effort where a common goal unites

two or more criminals. Such a meeting of the

minds enhances the likelihood that the

5

planned crime will be carried out. Thus, when

a conspiracy exists to commit a crime of

violence, ... the conspiracy itself poses a

substantial risk of violence, which qualifies it

under Section 924(c)(1) and Section

924(c)(3)(B) as a crime of violence.

App. 10a, quoting United States v. Elder, 88 F'3d 127,

129 (2d Cir. 1996).

The instant petition seeks an order declaring that a

Hobbs Act conspiracy can not qualify as a crime of

violence under § 924(c), particularly because an overt

act is not an essential element of proof in a Hobbs Act

conspiracy.

REASONS FOR GRANTING THE PETITION

A circuit split exists as to whether a conspiracy that

does not require proof of an overt act can qualify as a

“crime of violence.” The First Circuit joined the majority

in holding that a Hobbs Act conspiracy qualifies as a

“crime of violence.” See United States v. Taylor, 176 F.3d

331, 337-38 (6th Cir. 1999) (Hobbs Act conspiracy is

“erime of violence” under § 924(c)); United States v.

Phan, 121 F3d 149, 152-53 (4th Cir. 1997) (same); United

States v. Elder, 88 F3d 127, 129 (2d Cir. 1996) (same);

United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.

1992) (same). The Tenth Circuit has held, however, that

a conspiracy under New Mexico law, which did not

require proof of an overt act, was not a crime of violence.

See United States v. King, 979 F.2d 801 (10th Cir. 1992).

6

Additionally, the present case presents an issue left

open in the Court’s decision last term in/James v. United

States, 127 S. Ct. 1586 (2007). InJames, the Court ruled

that attempted burglary, as defined by Florida law,

qualified as a “violent felony” for purposes of the Armed

Career Criminal Act. Pivotal to the Court’s ruling,

though, was the fact that the Florida Supreme Court has

considerably narrowed application of attempted

burglary by requiring an “overt act directed toward

entering or remaining in a structure or conveyance,” and

holding that “[mJere preparation is not enough.” James,

127 S. Ct. at 1594.

In so holding, the Court noted that “[t]he only cases

holding to the contrary involved attempt laws that could

be satisfied by preparatory conduct that does not pose

the same risk of violent confrontation and physical harm

posed by an attempt to enter a structure illegally.”

James, 127S. Ct. at 1595-96. The Court further observed

that “[g]jiven that Florida law, as interpreted by that

State’s highest court, requires an overt act directed

toward the entry of a structure, we need not consider

whether the more attenuated conduct encompassed by

such laws presents a potential risk of serious injury

under ACCA.” James, 127 S. Ct. at 1596 (emphasis

added). This case presents the question left open by

James: whether “the more attenuated conduct

encompassed by such laws”—in this case, a Hobbs Act

conspiracy that does not require proof of an overt act—

involves a substantial risk that physical force against the

person or property of another may be used in the course

of committing the offense.

7

Finally, Turner’s conviction under § 924(c)(1)(B)(I1)

carries a mandatory minimum sentence of 30 years.

Hence, there are grave and substantial liberty interests

at stake in the instant petition. While the Court

concluded that an attempted burglary under Florida law

constitutes a violent crime, the instant case presents a

different paradigm—can an offense that requires

nothing more than a mere agreement constitute a “crime

of violence.”

I. A Hobbs Act conspiracy is not a “crime of violence.”

A. Thecharges and relevant statute.

Counts three and four of the indictment charged

Turner with use of a “firearm” during and in relation

to a crime of violence in violation of 18 U.S.C. § 924(c),

In this case, the government chose to charge the Hobbs

Act conspiracy, codified at 18 U.S.C. § 1951, as the

predicate “crime of violence.”

Title 18 U.S.C. § 924(c)(3) provides, in relevant part,

that the term “crime of violence” means an offense that

is afelony and (A) has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or (B) that by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course

of committing the offense. 18 U.S.C. § 924(c)(8).

Clearly, a Hobbs Act conspiracy does not fall within

the definitional prong of § 924(c)(3)(A), as the elements

2. Count three charged possession of the grenade and count

four charged possession of various firearms.

8

of the crime are an intent to agree and the intent to

commit the substantive offense, see United States v.

Drougas, 748 F.2d 8, 15 (1st Cir. 1984) (“The gist of

conspiracy is an agreement to disobey or to disregard

the law”), and it does not have as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, see 18 U.S.C.

§ 924(c)(3)(A).

Hence, a Hobbs Act conspiracy can only qualify as a

“crime of violence” if it satisfies the second prong of

§ 924(c)(3), but a Hobbs Act conspiracy does not, by its

nature, involve a substantial risk that physical force

against the person or property of another may be used

in the course of committing the offense. 18 U.S.C.

§ 924(c)(3)(B). It is axiomatic that a conspiracy is merely

an agreement between two or more persons. United

States v. Patterson, 644 F.2d 890, 893 (1st Cir. 1981)

(Where conspiracy is charged, the essential element to

be proved is agreement.”). Importantly, a Hobbs Act

conspiracy, unlike the so-called general conspiracy

statute (18 U.S.C. § 371), requires xo proof of any overt

act. B.g., United States v. LiCausi, 167 F.3d 36, 46

(1st Cir. 1999) (government need not prove overt act in

prosecution of Hobbs Act conspiracy); Pattern Jury

Instructions, First Circuit, Criminal Cases, § 4.16,

Comment 3 (1998).* A Hobbs Act conspiracy is complete

once the agreement is reached. See United States v.

David, 940 F.2d 722, 733 (1st Cir. 1991) (“When all is

said and done, a conspiracy is merely an agreement,

express or implied”). It therefore is not appropriately

3. As such, the trial court’s instructions to the jury in this

ease did not include an “overt act” as an element of the charged

conspiracy.

9

classified as a “crime of violence” because an

“agreement” does not present a substantial risk that

physical force against the person or property of another

may be used in the course of committing the conspiracy.

B. The Court reserved judgment on the issue

presented herein in its decision last term in

James v. United States.

Because a Hobbs Act conspiracy does not require proof

of any overt act, it does not qualify as a crime of violence,

an issue left open in James v. United States. In that case,

the Court confronted the issue “whether attempted

burglary, as defined by Florida law, is a ‘violent felony,”

which is defined in the Armed Career Criminal Act as:

“any crime punishable by imprisonment for a

term exceeding one year... that — (i) has as an

element the use, attempted use, or threatened

use of physical force against the person of

another; or (ii) is burglary, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.”

18 U.S.C. § 924(2)(B).

In James, the question before the Court was

“whether attempted burglary, as defined by Florida law,”

fell within ACCA’s residual provision for crimes that

“otherwise involv[e] conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii). Because under Florida law “[mJere

preparation is not enough,” given the Florida Supreme

Court’s holding that attempted burglary requires an

“overt act directed toward entering or remaining in a

structure or conveyance,” the “pivotal question” in

10

James was “whether overt conduct directed toward

unlawfully entering or remaining in a dwelling, with the

intent to commit a felony therein, is ‘conduct that

presents a serious potential risk of physical injury to

another.’” James, 127 S. Ct. at 1594. Responding in the

affirmative, the Court held that the main risk of burglary

arises from the possibility that an innocent person might

appear while the crime is in progress, which is the same

risk posed by attempted burglary as defined by Florida

law. James, 127 S. Ct. at 1600.

To support its conclusion that attempted burglary

presents a risk that is comparable to the risk posed by

the completed offense, the Court noted “every Court of

Appeals that has construed an attempted burglary law

similar in scope to Florida’s has held that the offense

qualifies as a ‘violent felony’ under clause (ii)’s residual

provision.” James, 1278S. Ct. at 1595 (emphasis added).

The Court specifically noted, however, that “[t]he only

cases holding to the contrary involved attempt laws that

could be satisfied by preparatory conduct that does not

pose the same risk of violent confrontation and physical

harm posed by an attempt to enter a structure illegally.”

James, 127 S. Ct. at 1595-96 (emphasis added).‘ Critical

4. In United States v. Strahl, 958 F.2d 980, 986 (10th Cir.

1992), the Tenth Circuit held that attempted burglary under Utah

law did not qualify as an ACCA predicate offense because a

conviction could be “based upon conduct such as making a

duplicate key, ‘casing’ the targeted building, obtaining floor plans

of a structure, or possessing burglary tools.” United States v.

Permenter, 969 F.2d 911, 913 (10th Cir. 1992), similarly excluded

a conviction under an Oklahoma statute that could be satisfied

by the defendant’s “merely ‘casing’ the targeted structure.”

(Cont'd)

11

to the case at bar, the Court noted that “[g]iven that

Florida law, as interpreted by that State’s highest court,

requires an overt act directed toward the entry of a

structure, we need not consider whether the more

attenuated conduct encompassed by such laws presents

a potential risk of serious injury under ACCA.” James,

127 S. Ct. at 1596; see id. at 1597-98 (Court reiterating

that “[aJttempted burglary under Florida law—as

construed in Jones to require an overt act directed

toward entry of a structure—satisfies Taylor’s

categorical approach).

C. The lower court erred in considering risks

presented by the object of the conspiracy,

which is a crime separate from the Hobbs Act

conspiracy.

For at least four distinct reasons, the court below

erred in considering the object of the conspiracy to

conclude that a Hobbs Act conspiracy constitutes a crime

of violence. First, not all conspirators follow through on

the objective of the conspiratorial agreement—many

individuals simply come to their senses and abandon the

conspiracy. It is precisely this reason that the Federal

(Cont’d)

In United States v. Martinez, 954 F.2d 1050, 1054 (5th Cir. 1992),

the Fifth Circuit came to the same conclusion as to a Texas

attempted burglary statute that did not require that the

defendant be “in the vicinity of any building.” And in United

States v. Weekley, 24 F.3d 1125, 1127 (9th Cir. 1994), the Court of

Appeals concluded that ACCA was not satisfied by a conviction

under a Washington law that covered “relatively unrisky”

conduct such as casing the neighborhood, selecting a house to

burgle, and possessing neckties to be used in the burglary.

12

sentencing guidelines provides a reduction for those who

abandon their conspiratorial objective. See United States

v. Egemonye, 62 F3d 425, 430 (1st Cir. 1995) (reduction

under U.S.S.G. § 2X1.1 recognizes what is “obvious” with

any conspiratorial agreement—the defendants may never

act upon the agreement: “the defendant has started down

the road toward the substantive crime but has not gotten

there yet and, whatever his intention, might still turn back

before crossing the line.”). While there are no effective

means to quantify the number of conspiracies de jwre that

are never detected because they are abandoned (with little

or no effort to achieve their objective) when their architects

come to their senses, an agreement to rob a bank is

prosecutable and punishable by the Hobbs Act, whether

or not the conspirators ever take another step towards

commission of the crime.

Second, because a Hobbs Act conspiracy requires no

overt act, there is no basis to consider the underlying

substantive offense to determine if a substantial risk exists

that force will be used in committing the conspiracy offense.

At least one circuit has already found this unique feature

controlling. See United States v. Brown, 200 F3d 700 (10th

Cir. 1999) (concluding that conspiracy to commit carjacking

was a crime of violence within § 924(c), but only because

the conspiracy statute at issue, 18 U.S.C. § 371, required

an overt act as an element of conviction, thereby finding

that United States v. King, 979 F:2d 801, 802 (10th Cir. 1992)

was “easily distinguishable” because the “King panel

applied New Mexico law which focuses solely on the

unlawful agreement and does not require an overt act,

thus, the underlying substantive offense could not be

considered.”) (emphasis added).

13

Third, § 924(c) is very precise regarding where the

substantial risk must exist—it must exist “in the course

of committing the offense.” 18 U.S.C. § 924(c)(3)

(emphasis added). In Leocal v. Ashcroft, 125 S. Ct. 377

(2004), the Court focused strongly on this limiting

language, which is also included in 18 U.S.C. § 16(b), to

conclude that the defendant’s DUI offense was not a

crime of violence under that statute. Leocal, 125 S. Ct.

at 383; 18 U.S.C. § 16(b) (requiring that the substantial

risk be a risk of using physical force against another

person “in the course of committing the offense.”). The

Court ruled that “[i]n no ‘ordinary or natural’ sense can

it be said that a person risks having to ‘use’ physical force

against another person in the course of operating a

vehicle while intoxicated and causing injury.” Leocal, 125

S. Ct. at 383.

Just as § 16(b) did not encompass the risk that force

would be used in committing the offense of OUI and

causing serious bodily injury, § 924(c)(3)(B) does not

encompass the non-active, passive crime of a Hobbs Act

conspiracy, which does not belong within “a category of

violent, active crimes” because a substantial risk exists

that physical force might be used to commit a separate

and independent crime—7.e., the object of the conspiracy.

See Leocal, 1258S. Ct. at 383. In interpreting the statute

at hand, this Court must assume that Congress inserted

the limiting language—“in the course of committing the

offense”—into the statute “to have a particular, non

superfluous meaning.” Bailey v. United States, 516 U.S.

137, 145, 1168. Ct. 501, 133 L. Ed. 2d 472 (1995) (“Judges

should hesitate to treat as surplusage statutory terms

in any setting, and resistance should be heightened when

the words describe an element of a criminal offense.”);

14

James, 127 S. Ct at 1606 (Scalia, J., dissenting) (“It is

our duty to give effect, if possible, to every clause and

word of a statute.””) (quoting Duncan v. Walker, 533 U.S.

167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001))

(interna! quotation marks omitted). There is no

principled basis to conclude that a substantial risk of

force exists during the commission of an agreement. Cf

United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999)

(felon-in-possession case) (concluding that “in the course

of committing the offense” requirement was not simply

a temporal limitation, but required a direct relationship

between the offense and the risk of violence; any

connection between possession of a firearm and a risk

of violence was too attenuated); United States v. Doe,

960 Fi2d 221, 224-25 (1st Cir. 1992).

Fourth, in determining whether a Hobbs Act

conspiracy constitutes a crime of violence, the statute

must be examined in categorical terms, focused on “the

elements and the nature of the offense of conviction,”

without regard for the particular facts of the case.

See James, 127 S. Ct. at 1593-94 (employing Taylor’s

categorical approach); Leocal, 1258S. Ct. at 381; United

States v. Johnson, 399 F.3d 1297 (11th Cir. 2005)

(“teaching of Leocal requires us to ask whether the

offense of possession of a firearm by a felon categorically

presents a substantial risk of violence”); cf Shepard

v. United States, 125 S. Ct. 1254, 1262 (2005).°

The conduct encompassed by the elements of a Hobbs

Act conspiracy—an agreement—does not present a

5. If not treated categorically, but instead was treated

factually, the elements of “crime of violence” should have been

submitted to the jury for its determination. See United States v.

Booker, 125 S. Ct. 738, 748 (2005).

15

substantial risk of physical force. As a category, an

agreement does not naturally involve a person acting in

disregard of the risk that physical force might be used

against another. While there are innumerable potential

fact patterns that could emerge from an agreement, an

agreement considered in categorical terms does not pose

a substantial risk of physical force.

For all of these reasons, the lower court erred in

considering the risk presented by the object of the

conspiracy to conclude that a Hobbs Act conspiracy

constitutes a “crime of violence.”

D. Legislative History.

Finally, the legislative history of the statute supports

Turner’s position herein. Unenacted drafts of § 924

specifically included “conspiracy” as a predicate offense,

see United States v. King, 979 F.2d 801, 804 (10th Cir.

1992), citing S.52, 98" Cong., 2d Sess. § 2 (1984) and

S.1688, 97" Cong., 2d Sess. § 2 (1982), but no reference

to conspiracy was included in the version ultimately

enacted. Moreover, Congress recently considered

amending § 924(c) to specifically include “conspiracy”

as a predicate crime of violence. See S.155, 109" Cong.,

1* Sess. § 209 (2005) (amending § 924(c)(1)(A) of title 18

“by striking ‘shall’ and inserting ‘or conspires to commit

any of the above acts, shall, for each instance in which

the firearm was used, carried, or possessed’”).

16

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Rosert M. GOLDSTEIN MaRrrTIN G. WEINBERG

20 Park Plaza Counsel of Record

Suite 903 MartTIN G. WEINBERG, PC.

Boston, MA 02116 20 Park Plaza

(617) 742-9015 Suite 905

rmg@goldstein-lawfirm.com Boston, MA 02116

(617) 227-3700

owlmcb@att.net

Counsel for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT DECIDED AUGUST 31, 2007

UNITED STATES COURT OF APPEALS

FIRST CIRCUIT

No. 03-2608

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID TURNER,

Defendant, Appellant.

Heard Sept. 15, 2006.

Decided Aug. 31, 2007.

Before TORRUELLA, Circuit Judge, SILER, Senior

Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Defendant David Turner and three codefendants

were convicted of several Hobbs Act and firearms

offenses based upon their attempt to rob an armored

ear facility. Turner appeals his conviction and sentence

* Of the Sixth Circuit, sitting by designation.

2a

Appendix A

I.

We recount the facts in the light most favorable to

the verdict, see United States v. Isler, 429 F3d 19, 22

(1st Cir.2005), reserving a discussion of additional facts

for our analysis.

Turner and his fellow conspirators Carmello Merlino

(Merlino), Stephen Rosetti, and William Merlino were

arrested on February 7, 1999, as they converged upon

their designated rallying point-TRC Auto Electric

(TRC). From there, the conspirators had intended to go

to the Loomis Fargo armored car facility in Easton,

Massachusetts and rob it of over $50 million. To carry

out this plan, the conspirators had acquired an arsenal

of several handguns, an assault rifle, and a hand grenade,

as well as masks, bullet proof vests, police scanners, a

radio frequency detector, large duffle bags for the money,

and vehicles that they intended to use during the robbery

and subsequent escape. The planned heist was an FBI

sting, however, and a purported fifth coconspirator,

Anthony Romano, was an F'BI informant who had worn

a wire during the planning of the robbery.

At trial, Turner claimed entrapment based upon the

FBI’s tactics in conducting the sting. His claim focused

upon two FBI agents, David Nadolski and William

Cronin, and Romano. Turner asserted that the FBI

agents induced him to participate in the crime so that

they could pressure him to provide information

regarding the 1990 robbery of the Isabella Stewart

3a

Appendix A

Gardener Museum in Boston, about which they thought

he had knowledge.'

In 1996, Romano, then incarcerated, had contacted

Nadolski and provided information regarding the

robbery of the John Quincy Adams Library that led to

the conviction of the perpetrator and the recovery of

stolen rare books. Romano remained in periodic contact

with Nadolski thereafter. In October 1997, Romano was

released from prison and obtained employment at TRC

from his friend, Merlino. Romano then contacted

Nadolski with two pieces of information: (1) that Romano

believed that Merlino and his associate, Turner, had been

involved in the Gardener robbery; and (2) that Merlino

was planning to rob the Loomis Fargo facility. Nadolski

informed Cronin, who already believed that Merlino and

Turner (who was believed to be a member of Merlino’s

crew) were somehow involved in the Gardener robbery.

Romano was told to “keep his ears open.” Cronin

ultimately met with Merlino three times between

January and late April 1998, to negotiate for the return

of the paintings. The negotiations ended after the third

meeting, with Cronin expressing frustration that

Merlino could not return the paintings and would not

voluntarily provide information about them.

Between April and November 1998, Romano

continued to provide information about the Gardener

1. The Gardener robbery was one of the largest art thefts

in history and resulted in the loss of several priceless paintings.

Despite the offer of a $5 million reward, the thieves have not

been apprehended nor have the paintings been recovered.

‘

4a

Appendix A

robbery and the Loomis Fargo plans-notably, that

Merlino wished Romano to arrange for an insider at

Loomis Fargo to provide them with information about

the interior of the facility. Nadolski, the case agent on

the Loomis Fargo matter, decided to proceed with a sting

operation, with an FBI agent acting as the insider.

In November, Romano agreed to become a “cooperating

witness” for the FBI and to record various conversations.

At this time, Romano told Merlino that he had finally

procured an “insider.” With the assistance of Loomis

Fargo’s security personnel, the FBI provided Romano

with information about the facility and a purported

diagram of the interior that he could forward to Merlino.

When Romano was directed by Merlino to steal a vehicle

and license plates, the FBI provided Romano with them.

Merlino and Romano discussed possible accomplices

for the heist, and Merlino suggested Turner, making

various comments about Turner’s criminal experience.

Merlino’s initial attempts to contact Turner were

unsuccessful, and Romano periodically inquired about

Turner’s status, even suggesting that William Merlino

be sent to look for him. Turner ultimately responded.

Turner and Rosetti joined the conspiracy on January

13, 1999, after Merlino presented his plan to them at a

restaurant. Thereafter, matters sped ahead, with the

conspirators discussing weapons, tactics, vehicles, the

advisability of taking hostages, and the need to evade

the police if stopped, as well as engaging in “dry runs”

Sa

Appendix A

with the insider.” They selected February 7, 1999 as the

robbery date, agreeing to rendezvous at TRC in the early

morning.

Carmello Merlino was arrested upon his arrival;

William Merlino was arrested at a nearby gas station

after he attempted to enter TRC. Turner and Rosetti

arrived at TRC in Rosetti’s Honda, and they proceeded

to “square the block”-check for following vehicles and

surveil the area for law enforcement personnel.

Apparently sensing something was amiss, they left the

area and drove to Turner’s Chevrolet Tahoe that had

been parked in a nearby condominium complex parking

lot. There they removed several large duffle bags from

the Honda and placed them in the Tahoe. Thereafter,

they returned in the Honda to TRC and again began

squaring the block. Law enforcement personnel arrested

them after a brief chase. A search of the Tahoe revealed

weapons, ammunition, masks, bullet proof vests,

scanners, a radio frequency detector, the box for the cell

phone provided to the insider, and other equipment.

A search of TRC revealed the van that was to be used in

the heist, which contained other robbery equipment.

2.. The “insider” would be called via a special cell phone,

then leave the facility for the parking lot, ostensibly to get

something from his car. The conspirators intended to pretend to

take the insider hostage with a gun to his head and enter the

facility. On these dry runs an undercover FBI agent, acting as

the inside man, responded to the calls and went to his car in the

parking lot as arranged (while the conspirators observed him

from a distance).

6a

Appendix A

Turner was indicted for six offenses: conspiracy to

affect commerce by robbery in violation of 18 U.S.C.

§ 1951 (Hobbs Act) (Count 1), attempt to affect commerce

by robbery in violation of 18 U.S.C. § 1951 (Count 2),

carrying a firearm (grenade) in relation to a crime of

violence in violation of 18 U.S.C. § 924(c) (Count 3),

carrying a firearm (handguns and an assault rifle) in

relation to a crime of violence in violation of 18 U.S.C.

§ 924(c) (Count 4), being a felon in possession of a firearm

(grenade) in violation of 18 U.S.C. § 922(g)(1) (Count 5),

and being a felon in possession of a firearm (handguns

and an assault rifle) in violation of 18 U.S.C. § 922(g)(1)

(Count 6).

All defendants were tried together.* In addition to

the tapes and physical evidence, the government

presented the testimony of Romano, Nadolski, and a host

of other agents who had participated in the sting. The

government also presented a stipulation that Turner was

a convicted felon.

Turner’s defense presented a theory of “vicarious

entrapment”-that the FBI, through Romano, coerced an

unsuspecting third party (Merlino) into inducing Turner

to join the conspiracy so that the FBI could use the

prosecution as leverage on Turner to cooperate in the

Gardener robbery investigation. Turner called FBI

special agent Cronin as his only witness. Cronin

acknowledged that he was provided information by

3. Their motion to continue the trial in light of the

September 11, 2001 terrorist attacks upon the United States was

denied.

Ta

Appendix A

Romano about the Gardener robbery throughout the

conspiracy, and that he believed Turner would be more

likely to cooperate if he were facing serious criminal

charges. He also acknowledged that he visited both

Turner and Merlino immediately after their arrest in

hopes that they would provide information about the

Gardner robbery in exchange for possible assistance in

this case.’ But he claimed that his interest had been

primarily in Merlino, not Turner, and that his interest

in both diminished after April 1998 because he concluded

that they could not facilitate the return of the Gardener

paintings. To rebut Turner’s entrapment theory, the

government presented evidence that Turner had been

convicted in 1989 and 1990 of two firearm offenses and

one larceny/breaking and entering offense, which the

government used to argue that he was predisposed to

commit the instant offense. Although the court gave an

entrapment instruction, the jury found Turner guilty on

all counts.

Between conviction and sentencing, Turner filed a

motion for a new trial pursuant to Fed.R.Crim.P. 33.

Turner argued that a new trial was warranted due to

the government’s improper failure to produce significant

exculpatory evidence, in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The

evidence consisted of several FBI investigative reports

(302s) regarding a second FBI informant who had

provided information about Merlino’s and Turner’s

4. Nadolski provided similar testimony on cross-

examination during the government’s case-in-chief.

8a

Appendix A

possible involvement in the Gardener robbery.° Turner

argued that the 302s would have constituted powerful

evidence supporting his entrapment defense and would

have eviscerated Cronin’s testimony that he had a

reduced interest in Merlino and Turner after April 1998.

The district court denied the motion and sentenced

Turner to 460 months’ imprisonment.

Il.

Turner raises several challenges to his conviction and

sentence, including: (A.) a Hobbs Act conspiracy is not

a “crime of violence” for purposes of 18 U.S.C. § 924;

(B.) the evidence was insufficient to support a conviction

for attempted robbery under the Hobbs Act; (C.) the

district court improperly instructed the jury on the

elements of vicarious entrapment and the necessary

impact on interstate commerce for a Hobbs Act violation;

(D.) the court erred in admitting Merlino’s taped

statements regarding Turner’s criminal past; (E.) the

court erred in admitting evidence of Turner’s prior

convictions and the radio frequency detector; (F) the

court erred in denying Turner’s motion to sever his trial

from Merlino’s and to sever the felon-in-possession

counts from the rest of the charges; (G.) the court erred

in denying his motion for a new trial; (H.) Turner was

entitled to a sentence reduction for acceptance of

responsibility; and (I.) Turner is entitled to remand for

resentencing pursuant to United States v. Booker, 543

5. Turner’s motion was also based upon certain other law

enforcement reports, but his presentation here focuses on the

302s related to the second informant.

9a

Appendix A

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).°®

Concluding that none of these challenges succeed, we

affirm Turner’s conviction and sentence.

A. Hobbs Act Conspiracy as Crime of Violence

Turner argues that he is entitled to a judgment of

acquittal on the Section 924(c) counts because conspiracy

under the Hobbs Act is not a predicate “crime of

violence.” Turner reasons that, because an overt act is

not required for a conspiracy conviction under the Hobbs

Act, the crime is complete with the making of the

6. Turner raises certain other challenges that do not

warrant significant discussion. First, he argues that the trial

should have been postponed based upon the terrorist attacks

upon the United States on September 11, 2001. This contention

fails as this case did not concern terrorism and Turner presents

no basis for believing that the denial of a continuance in any way

prejudiced him. Second, he argues that he should have been

permitted to question Nadolski about his knowledge of the

penalty for possession of a grenade. This contention aiso fails,

as Turner presents no coherent claim of sentencing entrapment

and the evidence made it clear that Merlino (rather than Nadolski

through Romano) brought up the matter of grenades.

7. Section 924(c) provides an enhanced penalty for anyone

who uses or carries a firearm in relation to a “crime of violence.”

“Crime of violence” is defined as “an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use

of physical force against the person or property of another, or

(B) that by its very nature involves a substantial risk that

physical force against the person or property of another may be

used in the course of committing the offense.” 18 U.S.C.

§ 924(c)(3).

10a

Appendix A

agreement (which is not a violent act). Turner relies upon

Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d

271 (2004) and United States v. King, 979 F2d 801 (10th

Cir.1992), in pressing this claim.

We review questions of statutory interpretation de

novo. See United States v. Frechette, 456 F3d 1, 7 (1st

Cir.2006). The overwhelming weight of authority holds

that a Hobbs Act conspiracy is a “crime of violence” for

purposes of Section 924(c). See United States v. Taylor,

176 F.3d 331, 337-38 (6th Cir.1999); United States v.

Phan, 121 F3d 149, 152-53 (4th Cir.1997); United States

v. Elder, 88 F:3d 127, 129 (2d Cir.1996); United States v.

Mendez, 992 F.2d 1488, 1491 (9th Cir.1992). These courts

reason: :

A conspiracy, by its very nature, is a collective

criminal effort where a common goal unites

two or more criminals. Such a meeting of the

minds enhances the likelihood that the

planned crime will be carried out. Thus, when

a conspiracy exists to commit a crime of

violence, ... the conspiracy itself poses a

substantial risk of violence, which qualifies it

under Section 924(c)(1) and Section

924(c)(3)(B) as a crime of violence.

Elder, 88 F.3d at 129 (internal citation and quotation

omitted). This authority is consistent with our rationale

for concluding that a conspiracy to commit a crime of

violence is a crime of violence under the Bail Reform

Act (which is worded identically to Section 924(c)).

lla

Appendix A

See United States v. Mitchell, 23 F3d 1, 3 (1st Cir.1994)

(collecting cases reaching same result under the criminal

code). The absence of an overt act requirement does not

alter our view. See United States v. Fiore, 983 F2d 1, 4

n. 4 (1st Cir.1992)(state conspiracy offense was “crime

of violence” for purposes of career offender guideline,

even though no act was required); cf. United States v.

McKenney, 450 F3d 39, 45 (1st Cir.), cert. dented, _ US.

__,127S.Ct. 537, 166 L.Ed.2d 398 (2006)(drug conspiracy

as predicate offense under Armed Career Criminal Act).

Indeed, in Fiore, we stated that the key inquiry in

assessing the nature of a conspiracy is to ask “conspiracy

to do what?”—as the object of the conspiracy is the critical

determinant of its nature. Jd. at 3.

Turner counters that this authority has been

undermined by the Supreme Court’s decision in Leocal.

In that case the Court concluded that the offense of

driving while intoxicated which causes serious bodily

injury (under Florida law) was not a “crime of violence”

(as defined in 18 U.S.C. § 16). 543 U.S. at 10-13, 125 S.Ct.

377. Leocal is inapposite for at least two reasons. First,

the Court’s rationale was that the Florida statute

criminalized conduct that was merely accidental or

negligent and thus not inherently “violent.” Jd. at 8-10,

125 S.Ct. 377 (noting that 18 U.S.C. § 16 has higher mens

rea requirement). This is not the case with a Hobbs Act

violation. Second, the Court was not dealing with

inchoate offenses. Jd. at 8-9, 125 S.Ct. 377 (“We do not

here deal with an attempted or threatened use of force.”).

Leocal thus has not undermined the conclusion that a

conspiracy may qualify as a crime of violence.

i2a

Appendix A

Turner also contends that the Tenth Circuit’s

decision in King properly acknowledges the significance

of the absence of an overt act requirement in a parallel

context. In King, 979 F2d at 803. The Tenth Circuit

concluded that conspiracy under New Mexico law, which

did not require proof of an overt act, was not a crime of

violence. The court held that because the crime of

conspiracy was complete upon “formation of the intent

to commit a felony, and does not require that any action

be taken on that intent, the elements of conspiracy to

commit a violent felony do not include the threatened

use of physical force.” /d.

We are unpersuaded by King, which, aside from

being at odds with our authority and the great weight of

authority from other circuits, does not consider the

importance of the object of the conspiracy, which under

our case law is a critical inquiry. See Fiore, 983 F.2d

at 3.2 We conclude that conspiracy under the Hobbs Act

constitutes a “crime of violence” for purposes of

18 U.S.C. § 924(c).

8. We note that the Tenth Circuit has more recently moved

toward the majority position. In United States v. Brown, the

court observed that, despite the fact that conspiracy punishes

the agreement rather than the substantive offense, “at minimum,

an agreement to accomplish the statutory elements of [a violent

felony] necessarily involves a substantial risk of physical force

against the person or property of the victim.” 200 F.3d 700, 706

(10th Cir.1999).

13a

Appendix A

B. Sufficiency of the Evidence of Attempted

Robbery

Turner next argues that the evidence does not

Support a conviction for attempted robbery.

He maintains that, at the time of the arrest, his actions

could at best be characterized as “mere preparation”

because he was far from the designated target, Loomis

Fargo, and was driving away from the rallying point

when apprehended. To his view, the arrest should have

been made after the group arrived at Loomis Fargo or,

at the earliest, when they had assembled, prepared, and:

left TRC in their vehicles.

We assess a challenge to the sufficiency of the

evidence by determining whether the evidence, taken

in the light most favorable to the government, supports

the guilty verdict. United States v. Burgos, 254 F3d &,

11 (Ist Cir.2001). “To prove attempt, the government

must establish both an intent to commit the substantive

offense and a substantial step towards its commission.”

Id. at 12 (internal citation omitted). While “mere

preparation” does not constitute a substantial step, a

defendant “does not have to get very far along the line

toward ultimate commission of the object crime in order

to commit the attempt offense.” United States v. Doyon,

194 F3d 207, 211 (1st Cir.1999).

Under this standard, the evidence was sufficient to

support the verdict. Turner and his compatriots planned

the offense in great detail, assembled weapons and other

robbery equipment, prepared vehicles, surveiled the

l4a

Appendix A

target, practiced dry-runs, and gathered at the

designated assembly point on the day scheduled for the

robbery. No more is required. See generally United

States v. LiCausi, 167 F3d 36, 48 (1st Cir.1999); United

States v. Chapdelaine, 989 F.2d 28, 30-33 (1st Cir.1993).

Indeed, the facts in both LiCausi and Chapdelaine are

strikingly similar to the conduct of Turner and his

cohorts in this case. The LiCausi and Chapdelaine

defendants surveiled the target, assembled weapons,

utilized disguises/robbery clothes, stole and positioned

vehicles for use in the robbery and subsequent escape,

and used a radio scanner to monitor police activity.

See id. As in each of those cases, the evidence here

suffices to support a conviction for attempted armed

robbery. Moreover, there is no requirement that the

actions constituting the attempt have a particular

geographic proximity to the object of the substantive

offense. See generally Doyon, 194 F3d at 212 (drug

dealer’s payment of past drug debt to supplier

constituted a substantial step in his attempt to make a

future narcotics purchase). And the fact that Turner may

have detected the FBI’s surveillance and tried to

abandon the attempt at the last moment is irrelevant.

See LiCausi, 167 F.3d at 48 (that defendants abandoned

the attempt after seeing a large number of people in front

of the target and intercepting a police call on a radio

scanner was inconsequential as they had already taken

a substantial step toward the robbery); United States v.

Del Carmen Ramirez, 823 F2d 1, 1-2 (1st Cir.1987)(that

defendants hid guns in grass and attempted to leave area

15a

Appendix A

when they spotted police is irrelevant because

defendants had already completed a substantial step).

C. Jury Instructions

Turner raises two challenges to the jury instructions.

He first argues that the instructions were inadequate in

their description of the required impact on interstate

commerce necessary for a Hobbs Act conviction. Turner

posits that the Supreme Court, in United States v. Lopez,

514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995),

raised the impact on interstate commerce required under

the Hobbs Act from “any impact” to a “substantial

impact.” Further, Turner asserts that the factual

impossibility of the robbery forecloses as a matter of

law the possibility that his crime had a substantial impact

on interstate commerce. He also argues that the court

erred in instructing the jury regarding the vicarious

entrapment defense. Turner says that the court should

not have told the jury that the government agent must

“specifically target” the defendant and “specifically

instruct” the intermediary to pressure the defendant.

In assessing a challenge to jury instructions, our task is

to determine if the instructions, taken as a whole, fairly

and adequately submitted the issues in the case to the

jury. See United States v. Glaum, 356 F3d 169, 178 (1st

9. We note a final flaw with Turner’s position. In light of

the defendants’ formidable arsenal and stated intent to “have it

out” with the police, waiting to make the arrest until the

defendants left TRC (with bullet proof vests on and weapons at

ready) or arrived at Loomis Fargo would have exposed law

enforcement personnel and the public to unnecessary risk.

l6a

Appendix A

Cir.2004), vacated on other grounds, 543 U.S. 1099, 125

S.Ct. 1030, 160 L.Ed.2d 994 (2005) (Booker).

Turner’s first challenge fails. We have held

specifically that Lopez did not change the interstate

commerce requirement for a Hobbs Act conviction,

stating that “the government must show only that the

...conduct created a realistic probability of a de minimis

effect on interstate commerce.” United States v. Capozzi,

347 F3d 327, 334-36 (1st Cir.2003) (internal citation and

quotation omitted). The planned theft of over $50 million

from a national armored car company more than

qualifies. See, e.g., United States v. Jimenez-Torres, 435

F:3d 3, 7 (1st Cir.2006). Turner’s impossibility contention

also fails. “While the substantive crime that is the object

of the conspiracy may be impossible to achieve, the

conspiracy nonetheless qualifies as an offense for which

a person may be prosecuted” under federal law. United

States v. Sanchez-Berrios, 424 F.3d 65, 78 (1st

Cir.2005)(government sting operation); see also United

States v. Nguyen, 246 F.3d 52, 54 (1st Cir.2001) (“All that

matters is that [defendant] entered a conspiracy whose

objective was to steal the assets of an entity in interstate

commerce. That the conspiracy failed to accomplish such

objective is irrelevant.”).

7a

Appendix A

We also reject Turner’s challenge to the “vicarious

entrapment instruction.” The district court’s instruction

stated:

Inducement by a codefendant constitutes

some vicarious entrapment by the government

if the following three elements are met:

First, that a government agent svecifically

identified the defendant as the desixd target

of the inducement or pressure;

second, that the government agent

encouraged the codefendant to induce or

pressure the defendant to commit the crime,

or his government agent’s handlers condoned

the use of coercive inducements or pressure

by the codefendant; and

third, the codefendant, in fact, applied

pressure or an improper inducement to

overcome the defendant’s reluctance to

become involved.

Turner’s claim that the second part of the instruction

included a requisite that the government agent must

“specifically instruct” the codefendant to induce the

defendant to participate in the crime is baseless. The

instruction explicitly allows for situations where the

codefendant, on his own, coerces the defendant into

joining the criminal enterprise, and the government

merely condones the action. This instruction is consistent

18a

Appendix A

with our case law on the third-party entrapment defense.

See United States v. Luisi, 482 F.8d 48, 54-56

(1st Cir.2007) United States v. Rogers, 102 F3d 641, 645

(1st Cir.1996); United States v. Bradley, 820 F2d 3, 7-8

(1st Cir.1987).

Turner’s alternative claim, that the instruction

improperly informed the jury that the government agent

must initially “target” the defendant may have more

traction, as such a requirement does not explicitly appear

in Luisi, Rogers or Bradley, and it makes the defense

somewhat harder for a defendant to establish. But even

if there was error, and we are not saying that there was,

the error was harmless. To prevail on an entrapment

claim, the defendant must show that he was improperly

induced by the government to engage in criminal conduct

and that he was not predisposed to engage in the conduct.

Sanchez-Berrios, 424 F.3d at 76. Improper inducement

consists of more than providing an opportunity to a

commit a crime; the inducement must create “a risk of

causing an otherwise unwilling person to commit the

crime.” United States v. Walter, 434 F.3d 30, 36 (1st

Cir.2006)(internal citation and quotation omitted).

The something “more” generally consists of excessive

pressure by the government agent on the defendant or

the exploitation of a defendant’s noncriminal motive, for

example, sympathy. Jd. Failure to establish either

improper inducement or lack of predisposition defeats

the defense. Jd. at 35-36.

The evidence is strong that there was no improper

inducement and that Turner was predisposed to commit

19a

Appendix A

the crime. Despite making several phone calls and pages

to Turner, Merlino made it clear that he was making an

offer to participate which Turner could readily decline.

There was no hint of threats or any other undue

pressure-simply the opportunity for a big score.

See Sanchez-Berrios, 424 F38d at 76-77 (neither mere

solicitation nor the prospect of illicit gain constitutes

improper inducement). Moreover, Turner’s own

statements, either on tape or attributed to him by

Romano, and conduct clearly paint him as an experienced

criminal and an eager participant. Turner engaged in

additional surveillance of the target, ran an additional

dry run with the “insider,” stated that the group should

shoot it out with police if stopped, expressed concern

that his Tahoe was bugged, commiserated with Rosetti

about the intense impatience one feels while waiting to

begin a planned robbery, and expressed concern that he

and Merlino should not be seen together because people

know that when they are together something illegal is

going to happen. See generally Walter, 434 F.3d at 37

(predisposition may be inferred from the defendant’s

statements showing experience with criminal activity).

On this record, Turner’s entrapment defense could not

prevail.

D. Merlino’s Statements

Turner raises three challenges to the admission of

Carmello Merlino’s taped statements about Turner’s

criminal past: that his entrapment defense was fatally

prejudiced by the admission of the statements, that the

admission of Merlino’s statements constituted error

20a

Appendix A

under Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968), and that admission of the

statements violated his right of confrontation under

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177 (2004).

We begin with common ground. Both sides agree that

the statements are admissible against Merlino. Further,

both sides agree that statements in furtherance of the

conspiracy, made by Merlino after Turner joined the

conspiracy, are admissible against Turner. See generally

LiCausi, 167 F.3d at 46. At issue are statements made

by Merlino before the January 13, 1999 meeting, which

the jury could understand to mean that Turner was

proficient with firearms (e.g., “good with these”), could

obtain them (e.g., “they got one or two”), and had

participated in other robberies (e.g., “knows how to do

these”).

Again here, any error with respect to the entrapment

defense was harmiess. “The admission of improper

testimony is harmless if it is highly probable that the

error did not influence the verdict.” /sler, 429 F.3d at 26

(internal citation omitted). Factors to consider in this

calculus include the importance of the evidence, its

uniqueness, how it was used, and the relative strength

of the opposing case. /d.

In our view, the statements in question were merely

cumulative, as Merlino made nearly identical comments

about Turner after January 13th. Moreover, as we have

noted, Turner’s own comments were to the same effect.

21a

Appendix A

Finally, as we have also noted, the evidence that Turner

was not entrapped was strong, and the pre-January 13th

comments were not emphasized by the government in

its argument.

The Sixth Amendment challenges are aiso flawed.

Merlino’s statements implying past criminal behavior on

Turner’s part did not directly implicate Turner in the

charged conspiracy. Therefore, the admission of the

statements could not constitute Bruton error. See United

States v. Smith, 46 F.3d 1223, 1227-28 (1st Cir.1995) (no

Bruton error where the codefendant’s statement does

not expressly implicate the defendant). Similarly, there

is no Crawford error, as Merlino’s secretly recorded

statements were not “testimonial,” within the meaning

of Crawford. See generally United States v. Brito, 427

F3d 53, 58-59 (1st Cir.2005); see also Horton v. Allen,

370 F3d 75, 83-85 (1st Cir.2004) (conspirator’s statement

to witness during private conversation was not

testimonial).

E. Other Evidentiary Claims

Turner raises two other challenges to the district

court’s evidentiary rulings. First, he argues that the

court erred in admitting evidence of two prior convictions

that were remote in time and of dubious relevance.

Second, he contends that the court erred in admitting

evidence of the radio frequency detector’® found in his

10. A radio frequency detector is a device for detecting

hidden listening devices.

22a

Appendix A

vehicle, which Turner maintains served no function other

than to prejudice the jury. We review a district court’s

evidentiary rulings for abuse of discretion. United States

v. Mercado Irizarry, 404 F3d 497, 500 (1st Cir.2005).

There was no abuse of discretion.

The prior convictions were highly probative to rebut

Turner’s entrapment defense and not too remote in time.

See United States v. Van Horn, 277 F.3d 48, 57-58 (1st

Cir.2002). Moreover, given the nature of the conspiracy

and Turner’s role in providing the firearms, the prior

convictions were clearly relevant. Similarly, the radio

frequency detector was probative of the sophisticated

nature of the conspiracy and, thus, the merits of the

entrapment defense. Moreover, the admission of the

radio frequency detector is no more prejudicial than the

admission of the police scanners, which Turner does not

challenge.

FE Severance

Turner next argues that the district court erred in

-efusing to sever his felon-in-possession counts and in

failing to sever his trial from Merlino’s. As to the former,

Turner asserts that the felon-in-possession counts

prejudiced his entrapment defense. As to the latter,

Turner argues that a severance was necessary to obtain

Merlino’s testimony that (1) Romano raised Turner’s

name and pressured Merlino to recruit him, (2) Turner

initially rejected Merlino’s overtures and Merlino

continued to apply pressure on him, and (3) Turner had

23a

Appendix A

received Merlino’s repeated pages and telephone

messages.

We begin with the refusal to sever felon-in-

possession counts, assessing the district court’s ruling

for manifest abuse of discretion. See Burgos, 254 F.3d at

13. To prevail on this claim, Turner must show that the

“improper joinder likely deprived him of a fair trial.”

Td. at 14 (internal citation and quotation omitted).

There was no abuse of discretion in the district

court’s refusal to sever these counts. The felon-in-

possession counts were properly tried with the other

counts because they arose out of the same conduct.

See United States v. Rose, 104 F3d 1408, 1416 (1st

Cir.1997). In addition, any possible prejudice was limited

by Turner’s stipulation to his status as a convicted felon.

See id. Moreover, and in any event, as discussed above,

his prior convictions were properly a part of the

government’s rebuttal of his entrapment defense.

See Van Horn, 277 F.3d at 57-58.

As to the severance of Merlino and Turner’s trials,

we start by noting that individuals who are indicted

together generally should be tried together. United

States v. Pena-Lora, 225 F3d 17, 33 (1st Cir.2000).

Moreover, severance is particularly disfavored in

conspiracy cases. Jd. To be entitled to severance, the

defendant must show “prejudice so pervasive that a

miscarriage of justice looms.” LiCausi, 167 F3d at 49.

To obtain a severance based upon the need for a

codefendant’s testimony, the defendant must show

24a

Appendix A

“(1) a bona fide need for the testimony; (2) the substance

of the testimony; (3) its exculpatory nature and effect;

and (4) that the codefendant will in fact testify if the cases

are severed.” Smith, 46 F.3d at 1231.

Under this standard, there was no manifest abuse

of discretion in denying the motion. The proffered

testimony was of limited, if any significance to Turner’s

entrapment defense because it did not tend to refute the

overwhelming evidence of predisposition nor indicate

improper inducement.”

G. Motion for a New Trial

Turner argues that he is entitled to a new trial

because the government violated its obligations under

Brady in improperly suppressing the FBI 302 reports

regarding a second informant-the so-called “Chicofsky

materials.” Turner asserts that the suppressed materials

would have provided invaluable support for his

entrapment defense, and that the evidence would have

enabled him to impeach Cronin’s testimony that his

interest in Merlino and Turner waned after April.

Under Brady, the government is required to turn

over exculpatory or impeachment evidence in its

possession to the defendant. United States v. Rivera-

Rangel, 396 F3d 476, 485 (1st Cir.2005). A new trial is

warranted based upon a Brady violation if the defendant

11. Furthermore, any suggestion of improper inducement

would be refuted by Merlino’s taped statements to the contrary.

25a

Appendix A

establishes that (1) the evidence is material and favorable

to the defense, (2) the prosecution suppressed the

evidence, and (3) the defendant was prejudiced because

there is a reasonable probability that the result of the

proceeding would have been different had the evidence

been disclosed to the defense. Jd. Suppressed evidence

that is merely cumulative of evidence already in the

defendant’s possession does not justify a new trial.

Conley v. United States, 415 F.3d 183, 189 (1st Cir.2005).

We review the district court’s decision for manifest abuse

of discretion. Rivera Rangel, 396 F.3d at 485-86.

Turner’s Brady claim fails because the Chicofsky

materials, and related documents, are not nearly as

beneficial as Turner claims. All but two of the thirty-

eight Chicofsky 302s precede May 1, 1998, and the other

two reports did not mention Turner; this is consistent

with Cronin’s testimony that his belief that Merlino

would or could return the paintings waned after April

1998. Further, Turner was mentioned in only five of the

302s, and Merlino’s attempts to return the paintings, as

recounted in the 302s, focused entirely on other

individuals. Moreover, all this evidence was merely

cumulative of stronger evidence presented at trial

suggestive of the FBI’s potential motivation to entrap

Turner. Indeed, Cronin’s own testimony made it clear

that he was in active negotiations with Merlino in April

1998, that he was well aware of Turner’s connection to

Merlino, that he had received reports from Romano

regarding the Gardener robbery throughout the

conspiracy, and that he visited Turner on the day of his

arrest in a last attempt to secure information regarding

26a

Appendix A

the Gardener robbery. Most significantly, Turner’s

presentation continues to focus on the FBI’s potential

motive to entrap him, while ignoring the more significant

issues of inducement and predisposition. On those issues,

the Chicofsky materials contribute nothing.” There is

nothing about the suppressed materials that suggests a

reasonable probability of a different result.

H. Sentencing

Finally, Turner raises two issues regarding his

sentence. He first claims that he was entitled to a

reduction for acceptance of responsibility, claiming that

he did not deny the “essential factual elements of guilt”

but simply challenged the government’s conduct with

his entrapment defense. While it is remotely conceivable,

in some rare circumstance, that a defendant who goes

to trial with an entrapment defense might still be entitled

to such a reduction, Turner’s decision to defend himself

at trial through a weak claim of entrapment in no way

places him in this narrow theoretical category.

See Sanchez-Berrios, 424 F3d at 79; see also Glaum, 356

F'3d at 180.

Turner next claims that he is entitled to a remand

for resentencing under Booker, as he has met the four-

12. Turner’s other arguments regarding Chicofsky-that

Chicofsky should not have been permitted to invoke the Fifth

Amendment at the hearing and that Turner should have been

permitted to examine him question by question-are too

perfunctorily presented to merit review. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir.1990).

Zia

Appendix A

part plain error test discussed in United States v.

Antonakopoulos, 399 F.3d 68, 78-79 (1st Cir.2005) (there

was error, the error was plain, the error affected

substantial rights of the defendant, and the error

undermined the fairness or integrity of the judicial

proceedings). Turner meets the first two parts, because

the district court treated the guidelines as mandatory.

See Isler, 429 F3d at 29. However, to satisfy parts three

and four, Turner “must show a reasonable probability

that the district court would impose a different sc tence

more favorable to the defendant under the new advisory

guidelines.” See United States v. McLean, 409 F3d 492,

505 (1st Cir.2005)(internal citation and quotation

omitted). Turner cannot carry this burden. The district

court rejected his request to be sentenced at the bottom

of the guideline range, and such a refusal “speaks

volumes” about the defendant’s chances on remand. /d.

Moreover, a review of the sentencing materials reveals

no indication that the district judge would be inclined to

impose a lower sentence. See id.”

Il.

For the reasons stated above, Turner’s conviction

and sentence are affirmed.

13. Turner also argues that the district court erred in

applying U.S.S.G. § 2X1.1 instead of § 2B3.1, and, alternatively,

that the district court erred in failing to grant a reduction under

U.S.S.G. § 2X1.1(b)(2). Both of these arguments are presented

without authority and in such a perfunctory manner that we deem

them waived. See Zannino, 895 F.2d at 17.