Jury Instructions/Entrapment – A defendant meets the “light” standard of proving government inducement for an entrapment defense where they present some evidence of “persuasion or mild coercion” by the government or its agents, such as the government promising them more money, promising to cover a defendant’s expenses or help them financially, minimizing the defendant’s chances of getting caught, and where there is some initial hesitation by the defendant.
Jury Instructions/Hobbs Act Extortion – A trial court does not have to use the definition of “official act” from McDonnell in a Hobbs Act extortion case but it must provide a definition for “official act” in its jury instructions that limits the type of conduct that can be considered an official act.
Four defendants, corrections officers in Georgia, appealed their convictions for Hobbs Act extortion and attempted distribution of meth and cocaine. The defendants all argued that the trial court erred in refusing to allow them to argue entrapment or instruct the jury on entrapment and that the trial court erred in failing to instruct the jury on the meaning of an “official act” for Hobbs Act extortion.
The case arose out of allegations that several corrections officers had been helping an FBI informant transport illegal narcotics. The informant, at the request of the FBI, would recruit the corrections officers for transporting the drugs and would direct them to wear their official uniforms while driving so as to avoid being pulled over by police officers. The trial court granted the government’s motion in limine to preclude any discussion of an entrapment defense, and when a juror submitted a note stating they had an issue with the way the government conducted its investigation, the trial court instructed the jury that it could not consider the manner in which the government conducted the investigation “because entrapment is not a defense in this case.”
On appeal, the Court held that the trial court erred in preventing two of the defendants from raising the entrapment defense and in failing to instruct the jury on entrapment for those two defendants. The Court held that these defendants had produced sufficient evidence of “government inducement” to merit an instruction on entrapment, given evidence of the FBI informant’s “persuasion or mild coercion” on the defendants, noting that the burden of production for presenting an entrapment defense to a jury is “light.”
Regarding the first defendant, the Court noted that the informant had initiated contact with the defendant after the defendant declined to call the informant first, had made unsolicited offers to the defendant, had told him he could be making more money with him, promised to cover the defendant’s expenses, and repeatedly minimized the chances of the defendant getting caught. The Court also emphasized the first defendant’s initial hesitance.
Regarding the second defendant, the Court noted that the informant had repeatedly told the defendant he would “look out” for him, help him out with financial issues or traffic tickets, and that this was sufficient to meet the “light burden of presenting ‘any evidence’ to raise the issue of government inducement.” The informant also repeatedly assured the defendant that there would be no firearms or dangerous conduct. The Court explained– “Merely describing a criminal job, of course, is not inducement—but offering a job, explaining how easy the job is, and attempting to persuade the listeners that a federal crime is the same
as simply riding along in a car is not “merely providing an opportunity.”
Conversely, the other two defendants had not met their burden of showing sufficient evidence of government inducement. Regarding the first of these two, the Court noted that the informant gave the defendant an opportunity to back out and did not put any pressure on him or try to persuade him. “There was simply no ‘plus’ that the government presented to Tucker beyond the ‘opportunity’ to commit a crime.” Regarding the second defendant, there was no evidence that the informant pressured her or manipulated her by appealing to “non-criminal motives.”
The Court also considered whether the trial court erred in its jury instructions regarding the elements of Hobbs Act extortion, specifically the definition of an “official act” that was added to the 11th Circuit pattern jury instructions after the Supreme Court’s decision in McDonnell v. United States. The trial court had declined to define “official act” in its instructions.
The Court first held that the trial court did not abuse its discretion in declining to use the definition from the pattern jury instructions because the instructions would have been misleading in this case due to its references to lawsuits and hearings to illustrate the concept of an “official act.” Here, the Government’s theory was that the “official act” was the officers wearing their official uniforms while engaged in the offense in an attempt to conceal their conduct from police officers. The Court agreed with the Government that the definition of “official act” in McDonnell did not fit the facts of this case.
While the trial court did not err in declining to use the definition from McDonnell, the Court held that the trial court did err in failing to provide a definition at all. The Court recited the Supreme Court’s constitutional concerns in McDonnell that “official act” must be limited to a specific type of conduct, and found that those concerns were especially relevant here based on the Government’s theory of the case, that the officers accepted a quid, money, for a quo, wearing their uniforms. The Court expressed skepticism that wearing a uniform alone is an “official act” since prison guards’ official authority is generally limited to a prison facility, and “simply wearing a GDC uniform outside the bounds where the GDC employee has lawful authority to act is not an official act.” The Court left open the possibility that the officers, by wearing their uniforms, were attempting to influence the actions of police officers they encountered during transports. The Court reversed the convictions for Hobbs Act extortion and remanded for a new trial.
Appeal from the Northern District of Georgia
Opinion by Branch, joined by Tjoflat and E. Carnes
Click here to read the opinion.