United States v. Smith

817 F. Supp. 1366, 1993 WL 98663
CourtDistrict Court, E.D. Kentucky
DecidedFebruary 12, 1993
DocketCrim. A. No. 92-38
StatusPublished
Cited by1 cases

This text of 817 F. Supp. 1366 (United States v. Smith) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smith, 817 F. Supp. 1366, 1993 WL 98663 (E.D. Ky. 1993).

Opinion

OPINION AND ORDER

FORESTER, District Judge.

This matter is before the Court upon the motion of the defendant, Thomas Anthony Smith, to dismiss the indictment for a denial of due process rights, and the motions in limine of the plaintiff, United States of Amer-ica, concerning post-crime cooperation and regarding an internal FBI operations manual.

On January 29, 1993, this Court conducted a hearing on the motions in limine of the United States. At the conclusion of that hearing,, the Court deferred ruling on the motions in limine pending a hearing on Smith’s motion to dismiss the indictment. On February 8,1993, at the conclusion of the hearing on the motion to dismiss, the Court [1367]*1367denied the portion of Smith’s motion to dismiss the indictment relating to an alleged breach of an agreement not to prosecute the defendant. The Court took the portion of the motion relating to an alleged denial of due process rights under advisement.

I

Smith argues that the Court should dismiss the indictment because he contends that the United States violated his fifth amendment due process rights by engaging in “outrageous” conduct that offends “fundamental fairness.” He alleges that FBI agents led him to believe that he would not be indicted if hé cooperated. The United States responds that it did nothing to mislead Smith. Whether the government’s conduct violates due process is an issue that the Court must determine. See United States v. Payne, 962 F.2d 1228, 1232 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992).

At the conclusion of the hearing on February 8, 1993, this Court found that Smith had not established by a preponderance of the evidence that the United States entered into an agreement not to prosecute him in exchange for his cooperation in an investigation of possible corruption in state government. The Court explained that the government witnesses consistently testified that they informed Smith that the United States would prosecute him but that it could move for a reduced sentence if he cooperated.

In light of the finding that Smith did not establish the existence of an agreement not to prosecute him, this Court cannot find that the government engaged in outrageous conduct. Cf. United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973) (“The law enforcement conduct here stops far short of violating that fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.”); United States v. Weaver, 905 F.2d 1466, 1474 (11th Cir.1990) (“[T]his is not a case in which promises made in bad faith may constitute trickery so flagrant as to violate a defendant’s constitutional rights.”), cert. denied, - U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991).

II

The United States argues in its motion in limine concerning post-crime .cooperation that the Court should not permit Smith to present evidence at trial of his cooperation with the FBI in the ongoing investigation of the Kentucky General Assembly. Smith contends that evidence concerning his cooperation is relevant to prove that FBI agents entrapped him. ■ Specifically, he argues that his cooperation proves that FBI agents wanted to entrap him so that they would gain his cooperation in the investigation of the Kentucky General Assembly. The United States contends that the evidence is not relevant.

Rule 401 -of the Federal Rules of Evidence provides:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Thérefore, the issue is whether Smith’s cooperation “is of consequence” to the entrapment defense. The United States Supreme Court recently explained this defense:

Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.

Jacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992).

The commentary to the Sixth Circuit Pattern Criminal Jury Instructions, citing relevant authority, provides:

No instruction on entrapment need be given unless there is some evidence of both government inducement and lack of predisposition. It is the duty of the trial judge to determine whether there is sufficient evidence of entrapment to allow the issue to go before the jury. If there is, then the burden shifts to the government to prove predisposition. The government must [1368]*1368prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

The entrapment instruction, Instruction 6.03, requires the jury to find the defendant not guilty unless the government proves beyond a reasonable doubt “that the defendant was already willing to commit the crime.”

According to Smith, evidence of his cooperation proves that the FBI agents had a motive to entrap him and proves that they induced him to engage in the alleged criminal activity. In United States v. Robinson, 763 F.2d 778 (6th Cir.1985), however, the district court excluded evidence that the defendant contended was relevant to show a motive for the FBI to entrap him. The defendant argued that the government needed to obtain federal charges to induce him to aid in another investigation. The Sixth Circuit Court of Appeals held that the district court did not abuse its discretion in excluding the evidence. First, the court explained that the particular evidence was not even probative of the FBI agents’ motive. Second, the court stated that the government’s motive is not relevant:

In addition, the principal issue in an entrapment defense is whether the defendant was predisposed to commit the offense. In our view, the government’s motive is irrelevant to this issue because even assuming that the government wanted to entrap [the defendant], this motive would not affect [the defendant’s] “readiness and willingness” to commit the crime.

■Id. at 782-83 (citations omitted).

In United States v. Frost, 431 F.2d 1249 (1st Cir.1970), cert. denied, 401 U.S. 916, 91 S.Ct. 896, 27 L.Ed.2d 817 (1971), the First Circuit Court of Appeals held that the district court properly excluded conversations that occurred after the. defendant’s arrest. The court explained:

The requisite elements of entrapment must necessarily precede the criminal acts.

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Related

United States v. Thomas Anthony Smith
23 F.3d 409 (Sixth Circuit, 1994)

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Bluebook (online)
817 F. Supp. 1366, 1993 WL 98663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-kyed-1993.