Criminal Procedure

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Criminal Procedure

Where the government presented no evidence the defendant was predisposed to commit a crime, and indisputably induced him to commit it, the defendant was entitled to raise an entrapment defense.

“It is not surprising that the government spends no time arguing that Lara was predisposed to commit the crime charged, since even a cursory review of the record shows no hint of such a predisposition. Indeed, this is a case where we need not mechanically consider each factor before concluding that a reasonable jury could infer that Lara was not predisposed to commit the crime. Only a few facts require mention: Lara was tending to his landscaping equipment when Agent Warran and his companion arrived with a truck chock-full of marijuana and insisted that he unload it; Lara was not affiliated with the cartel that shipped the marijuana, nor was he acquainted with his co-defendants in this appeal prior to the government’s involvement; when Lara learned the truck contained marijuana, he initially resisted the request to help with the unloading and acquiesced only after government’s persistent efforts; and when the job was done he promptly walked away empty-handed without payment in drugs or money. Even the district court noted Lara’s “initial reluctance” to unload the container (as a way to draw a contrast between Lara and Gonzalez, who the court concluded was predisposed to commit the crime). We recognize that Lara possessed a pistol when he was arrested, but on these facts that detail does not significantly alter our analysis of whether he was predisposed to distributing the marijuana. (We note that gun ownership is common in our society.) We might view this fact differently if Lara was apprehended in the midst of a drug transaction. But here he was simply unloading a truck near his workplace. We are confident that Lara has easily met the threshold requirements for a chance to give the predisposition issue to the jury.”

“As for the element of government inducement, the facts are sufficient for a jury to infer that the government induced Lara to unload the truck. Agent Warran did more than simply drive the truck to the River Road address and patiently wait to see who volunteered to unload it. He insisted that Gonzalez round up others to help (hoping to get a bigger haul of criminals), and the only one who took part in the so-called controlled delivery who was eager to get involved was Gonzalez. As we noted, once Lara realized the truck was full of marijuana, he again hesitated to participate. During this time, Warran yelled obscenities urging the men to unload and fraudulently claimed that he could not leave the property until the cargo was unloaded. The court concluded that Warran’s verbal efforts to hasten the unloading were directed at Gonzalez, not Lara, but we think that this shaves the facts too finely. Government counsel conceded that the statements were made in the presence of Gonzalez, Lara, and the other men who were standing around; it is unrealistic to think that Warran’s performance had no effect on Lara. We note one final point that the district court appears to have discounted. Government agents had previously contacted Doc Roberts, Lara’s landlord, about the controlled delivery. Roberts was paid $1,000 for his cooperation in the affair; this payment, government counsel conceded at oral argument, makes him a government agent. In an effort to secure Lara’s participation in the unloading, Warran again contacted Doc Roberts to persuade Lara to unload. Warran then told Lara that Doc Roberts said it was all right to unload the shipment and he would take responsibility for whatever happened. Based on these facts, we conclude that Lara has identified enough evidence in the record from which a jury could conclude that the government induced him to commit the crime.”

Affirmed in part, and Reversed in part.

10-1081, 10-1083, & 10-1202 U.S. v. Pillado

Appeals from the United States District Court for the Northern District of Illinois, Kapala, J., Wood, J.

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