Argued March 26, 2014
Petition for certiorari filed at, 12/18/2014
Petition for certiorari filed at, 01/06/2015
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. (3:11-cr-00111-RJC-DSC-1; 3:11-cr-00111-RJC-DSC-2). Robert J. Conrad, Jr., District Judge.
Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; Lawrence W. Hewitt, GUTHRIE DAVIS HENDERSON & STATON, Charlotte, North Carolina, for Appellants.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Henderson Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant Deangelo McLaurin.
Justin N. Davis, GUTHRIE DAVIS HENDERSON & STATON, Charlotte, North Carolina, for Appellant Nicholas Lowery.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and HAMILTON, Senior Circuit Judge. Chief Judge Traxler wrote the majority opinion, in which Senior Judge Hamilton joined. Judge Floyd wrote a separate opinion concurring in part and dissenting in part.
TRAXLER, Chief Judge.
Working with disgruntled drug couriers, defendants Deangelo McLaurin and Nicholas Lowery devised a plan to rob a drug " stash house." As it turned out, the stash house never existed, and the supposed drug couriers were undercover law enforcement officers. McLaurin and Lowery were arrested and ultimately convicted of various conspiracy and firearms charges. Finding no reversible trial error, we affirm their convictions. As to defendant McLaurin, however, we vacate his sentence and remand for resentencing.
On February 23, 2011, a confidential informant introduced defendant McLaurin to undercover police officer Rolando Ortiz-Trinidad of the Charlotte Mecklenburg Police Department. At the meeting, McLaurin sold Officer Ortiz a .38 caliber revolver for $200. At the end of the transaction, McLaurin told Ortiz that he had a shotgun for sale as well. Officer Ortiz and McLaurin then exchanged telephone numbers in order to contact each other about future transactions. Two days later, Ortiz and McLaurin met for a second transaction in which McLaurin sold Ortiz a sawed-off shotgun for $150. Shortly thereafter, McLaurin called Officer Ortiz and offered to sell him a third firearm.
Following the firearms transactions, the confidential informant identified McLaurin as a potential target for a reverse sting operation known as a home-invasion investigation or a stash-house robbery. A home-invasion investigation is a law enforcement technique in which law enforcement officers identify targets who are ready, willing, and able to rob a drug stash house and then provide them with the opportunity to commit the crime. The officers who participate in this type of undercover operation receive specialized training and employ techniques to weed out individuals who are not inclined to commit the robberies, including changing locations and scheduling several meetings in advance of the planned robbery. The purpose of these obstacles is to give targets the " opportunity to not participate in this particular style of robbery." J.A. 144.
On March 9, 2011, the confidential informant introduced McLaurin to two different undercover officers -- ATF Special Agent Shawn Stallo and his partner Task Force Officer Ashley Asbill (referred to together as the " Undercover Officers" ). This meeting
was recorded on audio and video; McLaurin, the confidential informant, and the Undercover Officers were present at all times.
During the meeting, the Undercover Officers posed as disgruntled drug couriers for a Mexican drug trafficking organization (the Organization), and expressed their desire to steal drugs from a stash house belonging to the Organization. Agent Stallo told McLaurin that he regularly picked up cocaine from various rental houses used by the Organization as stash houses, and that he was looking for someone to rob one of these stash houses. According to the cover story that Agent Stallo told McLaurin, each stash house, when stocked, contained between seven to nine kilograms of cocaine and was guarded by two armed men; the Organization constantly changed which stash house held the stock; Stallo picked up two kilograms of cocaine from a stocked stash house about every 30 days, but would not learn the address of such stash house until the day of the pick-up. Stallo proposed to keep two kilograms of the stolen cocaine for himself, while McLaurin and any others he recruited to help in robbing the stash house could keep the balance because they would be responsible for the " heavy lifting." J.A. 148.
In response, McLaurin indicated that he was interested in the robbery, assuring the Undercover Officers that he had committed a similar robbery in the past. McLaurin also told the Undercover Officers that he would have to obtain a firearm before the robbery because he had recently sold his gun. When discussing the type of firearm required for the job, McLaurin indicated that he would need a large-caliber weapon. McLaurin also explained that the job was " real big," J.A. 342, and that it would therefore take him three or four days to recruit others to help him in the robbery.
Consistent with his training, Agent Stallo made clear to McLaurin several times during the meeting that he did not have to go through with the robbery if he did not want to, including telling McLaurin to take a few days to consider whether he wanted to participate. If McLaurin still wanted to participate, he was to call the confidential informant, who would then get in touch with Stallo. McLaurin responded that he was " good with it," J.A. 151, assuring the Undercover Officers that he would be in touch and that they would meet again.
A little over two weeks went by without the case agents being able to contact the confidential informant to learn whether McLaurin had expressed interest in the potential robbery. As a result, Agent Stallo attempted to contact McLaurin by telephone. McLaurin called back within minutes after Stallo left a message, and the two agreed to meet the next day, March 25, 2011, to discuss further plans for the robbery. On the day of the meeting, McLaurin called Stallo and advised him that he would be bringing along an associate -- codefendant Nicholas Lowery -- who would assist in the robbery. The Undercover Officers, McLaurin, and Lowery met in the parking lot of a restaurant; the 45-minute-long meeting was again recorded on audio.
During the meeting, McLaurin and Lowery discussed their specific plans for the robbery. McLaurin stated that upon entering the house, he would demand that everyone " get on the ground, face down." J.A. 193. Lowery added that he would strike anyone who resisted with the butt of his gun or shoot them in the leg if necessary. With respect to the need for firearms, Lowery indicated that he had a gun on him then, see J.A. 177 (Lowery patted himself and stated that he was " strapped
right now" ), and that he had additional handguns at his disposal. According to Lowery, the job potentially called for a " K," referring to an AK-47 rifle, because it was more powerful and could " chop ligaments." J.A. 177. When discussing the cocaine that McLaurin and Lowery planned to steal, Lowery explained in detail how he would distribute it, and he also offered to help sell Agent Stallo's share of the drugs.
During the discussion, Lowery stated that there were " three things you gotta consider . . . when you do stuff. . . . Getting killed, going to prison, or killing another motherf***er." J.A. 360. Lowery continued, " And if you ain't willing to accept those consequences," and McLaurin interjected, " Don't get involved." J.A. 360. At the conclusion of the meeting, Agent Stallo reiterated that if McLaurin and Lowery did not want to go through with the robbery, they should just forget about him and the plan.
On April 6, 2011, the Undercover Officers again met with McLaurin and Lowery and again recorded the meeting. The Undercover Officers went over the details of the planned robbery, and McLaurin and Lowery confirmed their commitment to the plan. Lowery mentioned purchasing an assault rifle for the robbery, characterizing the expenditure as an investment. In discussing the specifics of the robbery, McLaurin reiterated that his plan was to get everyone on the ground.
In the days following the meeting, Agent Stallo corresponded with McLaurin nearly every day in calls or text messages initiated by both parties. During the course of those conversations, Agent Stallo told McLaurin that the robbery would take place on April 11, and that he would call McLaurin to give him the location. The Undercover Officers set up an initial meeting at a gas station to confirm that McLaurin and Lowery had the firearms and other tools necessary for the robbery and to identify any other individuals that McLaurin and Lowery had recruited to participate in the robbery. After the preliminary meeting, the plan was to lead the group to a nearby storage facility that was under law enforcement control so that they could safely make the arrests.
On April 11, McLaurin and Lowery arrived at the gas station as scheduled. When McLaurin and Lowery spoke with the Undercover Officers, Lowery pointed to another vehicle parked nearby and indicated that the individual in the car would join in the robbery. The Undercover Officers then drove to the storage facility, with McLaurin and Lowery following in their car and the other individual trailing in the third car. The Undercover Officers and McLaurin and Lowery entered the parking lot, but the unknown participant drove past the storage facility. When Lowery and McLaurin arrived, Agent Stallo overheard Lowery on the telephone state, " [E]verything looks good here. Everything's looking cool." J.A. 222.
Agent Stallo then asked McLaurin whether they had the " tools," meaning firearms, for the robbery or whether they had to wait for the third individual. J.A. 223. McLaurin responded that he thought Lowery had them. At that point, rather than wait on the other participant, Agent Stallo initiated the arrests of McLaurin and Lowery, concerned that either one of them could relay a message to the other unknown individual.
Following the arrests, a search of McLaurin and Lowery's vehicle revealed a pair of pants, gloves, a bandana, and a toboggan hat. Concerned that the guns were in the other vehicle, Agent Stallo instructed the surveillance team to be on the lookout for the suspected third participant and told them to arrest him if they
were able to make contact. Despite searching with a helicopter and several additional officers, law enforcement was unable to locate the third participant or his vehicle.
Following their arrests, both McLaurin and Lowery waived their Miranda rights and agreed to speak with law enforcement. McLaurin admitted that he was supposed to meet Agent Stallo that day to " do a job and to make some money." J.A. 416. After providing several explanations of what the " job" entailed, McLaurin eventually admitted that the plan was to go into a house to get five to seven kilos of cocaine that they would then sell. McLaurin also claimed that he did not have a gun, asserting that although he asked Agent Stallo to get him a firearm, he did not plan on using it. According to McLaurin, rather than steal the cocaine, he planned to " go to the house and ask the Mexicans to front him the seven bricks or the 7 kilos." J.A. 429. McLaurin also initially denied possessing and selling guns on February 23 and 25, 2011. Eventually, however, he admitted to his participation in the transactions but said that he found the pistol and sawed-off shotgun in the woods.
In his statements to law enforcement, Lowery denied any involvement in the planned robbery. Lowery acknowledged meeting with Agent Stallo but asserted that he had no intention of going through with the robberies and that he had told Stallo that he would not participate. Lowery claimed that he was only providing McLaurin a ride to the storage facility and denied any knowledge of the other car that the Undercover Officers suspected contained the firearms and the third participant.
McLaurin and Lowery were each ultimately charged with three counts of conspiracy arising directly from the stash-house sting: (1) conspiracy to interfere with commerce by threats of violence, in violation of the Hobbs Act, 18 U.S.C. § 1951(a); (2) conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § § 841(b)(1)(A) and 846; and (3) conspiracy to use or carry a firearm in furtherance of a crime of violence and a drug trafficking offense, in violation of 18 U.S.C. § 924(c). In addition to the conspiracy counts, McLaurin was charged with two counts of possession of a firearm by a convicted felon, and Lowery was charged with one count of possession of a firearm by a convicted felon, all in violation of 18 U.S.C. § 922(g)(1). McLaurin's felon-in-possession counts related to his possession of the .38 caliber pistol and sawed-off shotgun during the undercover transactions with Officer Ortiz on February 23 and 25, 2011. Lowery's felon-in-possession count stemmed from his possession of a .40 caliber pistol on July 28, 2010.
McLaurin and Lowery each moved to sever the felon-in-possession counts from the conspiracy counts, contending that the counts were unrelated. The district court granted the motion with respect to Lowery but denied it with respect to McLaurin. McLaurin and Lowery were tried together before a jury on the remaining counts, and both relied primarily on an entrapment defense. The jury rejected the defense and convicted McLaurin and Lowery on all three conspiracy counts and convicted McLaurin on both felon-in-possession counts. The district court sentenced McLaurin to 151 months in prison and Lowery to 168 months. These appeals followed.
The Defendants first challenge the district court's instructions on their entrapment defense. " Although we review a district court's refusal to give a jury instruction
for abuse of discretion, we conduct a de novo review of any claim that jury instructions incorrectly stated the law." United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012) (citation omitted), cert. denied, 133 S.Ct. 899 (2013).
Entrapment is an affirmative defense consisting of " two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Consistent with Mathews, the district court instructed the jury that the elements of the defense were government inducement and lack of predisposition, see J.A. 615, and the court then explained the manner in which the defense operates:
Thus, where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, that person is a victim of entrapment, and the law as a matter of policy forbids that person's conviction in such a case.
On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment.
For example, it is not entrapment for a government agent to pretend to be someone else and to offer either directly or through an informer or other ...