Criminal Practice – Defendants Convicted in Stash-House Sting

U.S. v. McLaurin (Lawyers Weekly No. 14-01-0834, 50 pp.) (Traxler, J.) No. 13-4138, Aug. 22, 2014; USDC at Charlotte, N.C. (Conrad, J.) 4^th Cir.

Holding: In this prosecution of defendants Deangelo McLaurin and Nicholas Lowery for planning to rob a drug “stash house” described by undercover police officers, the district court did not err in its jury instructions on the entrapment defense or in admitting prior bad acts evidence, but the 4^th Circuit vacates one defendant’s 151-month sentence and remands for resentencing.

Defendants do not challenge the district court’s initial jury instructions on entrapment; instead they challenge the supplemental instruction given after the jury requested clarification of the term “inducement.” The district court said “inducement requires more than mere solicitation by the government. Inducement is a term of art necessitating government overreaching and conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party.” (emphasis added).

We find no error in the district court instruction. The unobjected-to general entrapment instructions made it clear to the jury that an entrapment defense consists of two elements and that the defense could be rejected on either the inducement prong or the predisposition prong. The supplemental “inducement” instruction did not remove the predisposition element from the jury’s consideration any more than the agreed-upon general instructions did. The supplemental instruction simply elaborated on the circumstances that can be considered inducement and did so in a manner consistent with the law of this circuit. We reject defendants’ challenge to the jury instructions.

The district court also did not violate Fed. R. Evid. 404(b) when it admitted evidence that

McLaurin had been convicted of common law robbery in 2004 and Lowery possessed a firearm on July 28, 2010.

Lowery argued that he lacked both the predisposition to commit such a robbery and the intent to actually carry it out. Evidence tending to prove that Lowery had the ability to bring a necessary tool, such as a firearm, to conduct the proposed stash-house robbery was relevant to the question of Lowery’s predisposition to commit the robbery, and his prior possession of a firearm showed his familiarity with and access to weapons. We believe the bad act at issue here is similar enough to establish predisposition because it involved Lowery’s knowing possession of a firearm. Further, Lowery opened the door to admission of the evidence. We cannot say the district court abused its discretion in admitting the firearm evidence.

The district court initially excluded all of the government’s proposed 404(b) evidence against McLaurin, but the district court later agreed with the government that his lawyer’s cross-examination of a government agent left the jury with the misimpression that there was no proof McLaurin had previously committed a robbery. The district court said McLaurin should not get the benefit of excluded proof and then be allowed to convey to the jury that there is no proof. We again find no error in the district court’s ruling.

The district court did not err in denying McLaurin’s motion to sever his felon-in-possession counts from his conspiracy counts on the ground that such counts were improperly joined under Fed. R. Crim. P. 8, or in denying severance under Rule 14. We agree with the government that the conspiracy offenses and felon-in-possession offenses are logically related. Further, any misjoinder caused no actual prejudice to McLaurin. In our view, the evidence of McLaurin’s two firearm sales would have been admissible under Rule 404(b) in a separate trial of the conspiracy charges.

On plain error review, the court vacates McLaurin’s sentence and remands for resentencing. The government concedes there was error in the calculation of McLaurin’s criminal history that increased his advisory sentencing range, and it does not dispute that the error was plain. The transcript of the sentencing hearing provides a non-speculative basis for us to conclude that the district court would have given McLaurin a lower sentence than 151 months’ imprisonment had it known that his correctly calculated sentencing range under the advisory guidelines was 121 to 151 months’ imprisonment, instead of 151 to 188 months’ imprisonment. The district court made it clear that it was very troubled by the 151-188 guidelines range, in that the sentencing range was driven by the fictitious weight of the fictitious drugs in the fictitious stash house.

Concurrence & Dissent

Floyd, J.: I agree with the majority opinion except as to part IV, in which it concludes the district court did not err in joining McLaurin’s felon-in-possession counts with his conspiracy counts. Because I believe the district court overstepped Rule 8(a)’s boundaries, I respectfully dissent.