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Media Alerts - USA v. Ralph Dennis - Third Circuit
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July 22, 2016
  USA v. Ralph Dennis - Third Circuit
Headline: Defendant entitled to jury instruction on the entrapment defense in reverse sting operation.

Area of Law: Criminal Law

Issue(s) Presented: Was defendant entitled to a jury instruction on an entrapment defense, where he produced evidence that ATF agents induced him to participate in a reverse sting designed to incriminate him?

Brief Summary:

The Third Circuit reversed defendant's conviction for conspiracy to rob a drug stash house and for carrying a gun in the commission of a crime. Defendant argued that Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents induced him, through a friend, to participate in a reverse sting that was designed to incriminate him and co-conspirators. Dennis's friend induced him to cooperate in the robbery by claiming that he needed to conduct the robbery in order to help his ailing mother. Dennis did not have any previous charges or convictions for robbery or violent crimes. The Court held that the District Court should have given an entrapment instruction on the robbery and gun possession charges, and thus vacated the judgment of conviction and sentence and remanded for a new trial.

Extended Summary:

Defendant Dennis asserted that the district court erred by denying his request to instruct the jury on an entrapment defense and by denying his motion for dismissal asserting outrageous prosecution. Dennis was convicted of conspiracy to rob a narcotics "stash house" and was also convicted of carrying a firearm during the commission of the crime.

Dennis alleged that agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), induced him through a friend, to participate in a reverse sting that was designed to incriminate him and co-conspirators. In June 2012, ATF agents in Camden, New Jersey met with Kevin Burk. Burk is a convicted felon who was facing forgery charges and who was cooperating with law enforcement as a confidential informant. Burk told the agents about the defendant and their long history of committing crimes together. Dennis had many prior arrests.

The ATF instructed Burk to enlist Dennis's help in carrying out a robbery and provided him with a backstory. Dennis initially declined Burk's repeated efforts to enlist Dennis but he finally agreed to help Burk rob a cocaine stash house when Burk told him that the job was necessary to help Burk's mother who had cancer. Burk advised Dennis that the robbery was planned by "Rock," a Mexican drug cartel courier, and that it would yield a street value of $2 million. Later on, Mitchell and Hardee, both acquaintances of Dennis, also agreed to assist in the robbery.

Burk set up the first meeting between the ATF agents, Mitchell and Dennis. Before the meeting Burk advised them that they needed to "play the role" to impress Rock, so that they would be able get the job. During the meeting, Dennis stated that they would have to put down the guards in the stash house and that he would bring two guns. Dennis later testified that he was saying these things solely to impress Rock. He also testified that he did not own a gun.
Rock offered Mitchell and Dennis a chance to back out, which they both declined. During two later meetings, Dennis suggested that they use stun guns to subdue the guards and made it clear that he would not enter the stash house. Rather, Dennis would stay parked outside and would be listening on a cell phone. During the last meeting before the robbery, Burke pressed that it was necessary for Dennis to have a gun in his role as lookout and then provided Dennis with a gun.

On the day of the robbery, the group traveled to a storage facility to prepare for and rehearse the robbery. Rock talked through the details of how the stash house is set up. The group then walked through the robbery and rehearsed how it would unfold. After they had completed the walk-though, ATF agents rushed into the scene and arrested Dennis, Mitchell, and Hardee.

At Dennis's trial, the District Court refused his request for a jury instruction on entrapment. Dennis appealed this denial after his conviction. The Third Circuit concluded that entrapment occurs when a defendant who is not predisposed to commit the crimes does so as a result of the government's inducement. The defendant has the burden of production on two elements: inducement by the government to commit the crime and the defendant's lack of predisposition to commit the crime.

The Court concluded that Dennis met his burden to raise a question about inducement based on the central role that Burk played in getting Dennis to participate in the scheme. Dennis had no known connections to the crimes that the ATF was investigating, and was only targeted after Burk produced his name. In addition, Burk's personal relationship to Dennis contributed to his involvement as it allowed Burk to appeal to Dennis's sympathies based on the story of Burk's sick mother. The Court thus concluded that Burk's efforts combined with the substantial financial payoff that was offered to Dennis exceeded a situation in which the government merely opened up an opportunity for committing a crime.

The Court also found Dennis met his burden of production for the second element, predisposition. Dennis argued that the record contained sufficient evidence to meet his burden that he lacked a predisposition to commit this crime. He focused on the absence of robbery or violent crimes in his criminal history, his testimony of turning away previous opportunities to join Burk in robberies, and expert testimony presented during his trial of his vulnerability to being persuaded due to his low IQ.

The Court held that the timing of the motion did not alter the need for the District Court to refrain from invading the jury's territory. The District Court erred by weighing evidence and by improperly drawing inferences against Dennis on the robbery and firearm charges and that Dennis had presented sufficient evidence to create reasonable doubt about his predisposition to commit these crimes.

The Court also reject the government's harmless error argument, hat because Dennis was still able to proffer all of his evidence on entrapment, the jury was able to weigh the evidence, and it still convicted Dennis. The Court rejected this argument, stating that if Dennis's motion for an entrapment instruction had been granted, the government would have had the burden of disapproving entrapment beyond a reasonable doubt. Therefore, the jury weighed the evidence without considering whether the government carried its burden of proving beyond a reasonable doubt that it did not entrap Dennis.

However, the Court affirmed Dennis's conviction for conspiracy to distribute and possess with intent to distribute. It concluded that his criminal history of convictions for possession and distribution of cocaine and marijuana contradicted Dennis's assertion that he was not predisposed to commit this crime.

The Court further rejected Dennis's argument that the indictment against him should be dismissed on the basis of outrageous prosecution that violated his right to due process. The Court stated that Dennis failed to meet the higher evidentiary burden of showing that the government essentially "created the crime for the sole purpose of obtaining a conviction."

The full opinion can be found at

Panel: Ambro, Hardiman, and Nygaard, Circuit Judges

Argument Date: November 19, 2015

Date of Issued Opinion: June 24, 2016

Docket Number: No. 14-3561

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

Counsel: Lawrence S. Lustberg, Jillian T. Stein, Benjamin z. Yaster, Counsel for Appellant; Mark E. Coyne, Glenn J. Moramarco, Counsel for Appellee.

Author of Opinion: Circuit Judge Nygaard

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/22/2016 03:15 PM     3rd Circuit  

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