U.S. v. Joost, 95-2032

• Decision Date: 07 May 1996
• Docket Number: No. 95-2032,95-2032
• Citation: 92 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. Robert M. JOOST, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

92 F.3d 7

UNITED STATES of America, Appellee, v. Robert M. JOOST, Defendant, Appellant.

No. 95-2032.

United States Court of Appeals, First Circuit.

Heard May 7, 1996.

Decided Aug. 7, 1996.

Thomas G. Briody, Providence, RI, for appellant.

Margaret E. Curran, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, and Kenneth P. Madden, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Circuit Judge, COFFIN, Senior Circuit Judge, and CUMMINGS, ^* Circuit Judge.

COFFIN, Senior Circuit Judge.

Defendant Robert Joost appeals his conviction for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). He raises four issues: (1) whether the court erred in refusing to give an entrapment instruction, (2) whether the felon-in-possession statute exceeds Congress's Commerce Clause authority, (3) whether the court properly relied on three convictions as predicates for application of an enhanced penalty under the Armed Career Criminal Act, and (4) whether the court erred in dismissing a challenge to the jury composition and selection procedures.

Only the first issue merits extended discussion in this opinion. We discuss briefly our reasons for affirming the court's handling of the second and third issues, and we uphold the court's action on the jury challenge for the reasons set forth in an unpublished opinion issuing simultaneously with the present one, see United States v. Joost, No. 95-2031, 1996 WL 480215 (1st Cir. Aug. 7, 1996). After careful consideration, we conclude that the evidence merited a jury instruction on entrapment. We therefore reverse and remand for a new trial.

Entrapment

The Record. Whether an instruction on entrapment should have been given here presents both a close and an unusual issue. While most entrapment cases focus on the question whether, assuming improper inducement, the defendant carried the burden of showing an unreadiness to commit the crime at issue, the ruling here was the threshold one that there had been, as a matter of law, no showing of improper inducement. Moreover, the conduct of the law enforcement officers did not involve any single incident that could be said to be overbearing. And the defendant, while no stranger to criminal activities, was pursuing them in a field unrelated to dealing in firearms when this saga begins.

This, therefore, is a case out of the ordinary. Since an entrapment instruction was refused, we must have before us all of the significant evidence that the jury heard. While we shall condense as much as we fairly can, we recognize that sometimes "the devil is in the details" and that too skeletal a summary risks overlooking something that could have persuaded a rational jury. Here is our effort.

(1) The First Month--A Counterfeiting Investigation. Government efforts in this case occupied a period of four months, from March 23 to July 24, 1994. One Tracy had been caught passing counterfeit tokens at the Foxwoods Casino in Connecticut; he turned informant and volunteered to give information to Rhode Island authorities about the counterfeiting activities of his partner, defendant. Tracy introduced defendant to Rhode Island State Police detectives DelPrete and O'Donnell, who pretended to be petty thieves, one of them having a cousin strategically employed in the cashier's cage at the casino.

Defendant had been convicted thirty years earlier of three breaking and entering felonies and had been imprisoned during most of the 1970's and 1980's. Since his release in 1987, he had held jobs for only short periods. He had commenced his counterfeiting activity in February 1994. His only current legitimate source of income, and a poor one at that, was helping to fabricate costume jewelry components.

His counterfeiting enterprise had suffered a setback when slot machines at the casino were altered so that they rejected the fraudulent tokens. When the detectives offered to pay fifty cents for each dollar token after they supposedly cashed in the tokens at the cashier's cage, defendant was delighted. Over the next four months he realized between $5,000 and $6,000 from this activity.

(2) The Second Month--The Focus Changes. The detectives began to extend their visits to defendant, in the words of DelPrete, "because he was bringing up other things for us to do." Defendant talked of many criminal ventures, some past, and others future possibilities. They included a vault robbery that defendant said he had helped plan while in prison, a warehouse-tractor/trailer job in Pennsylvania, and robberies of supermarkets, a novelty shop, a Ground Round restaurant, an armored car, a UPS truck, a VFW hall, and a night club ("Mustang Sally's").

The detectives said that they had broken into houses, and defendant spoke of being a safecracker in the 1960's and early 1970's. But, the detectives acknowledged, defendant represented that he himself did not do armed robberies. Defendant exhibited considerable criminal know-how as he critiqued various plans the detectives brought forward and demonstrated how to use weapons in a robbery.

Defendant testified that most of the stories he told were just stories, that they sprang from his imagination, his reading, or fiction he had written in prison, that he "talked tough" because he was dealing with "tough people" and wanted to sustain their interest in him because they were his only means to realize income from his counterfeiting.

On April 24, a month after the first meeting, defendant, according to the detectives, introduced the subject of firearms in discussing the possibility of doing an armored car robbery, which might require them to shoot guards. According to defendant, the detectives had been introduced to him as "guys doing stick-ups," but he acknowledged that he was the first to talk about doing a specific robbery. He also mentioned the warehouse-tractor/trailer job possibility.

During the month following this conversation, the detectives visited defendant on May 10 and May 13 and obtained counterfeit tokens. Defendant said there were from twenty to thirty phone calls during the entire four-month period. On May 20, defendant once again mentioned the use of firearms in connection with robbing an armored car facility.

(3) The Third Month--Dialogue and Diversion. The third month of defendant's interactions with the detectives was characterized by a number of unavailing requests by the detectives that defendant procure a gun for use in Fall River, attempted dissuasion on the part of defendant, and numerous trips to look over scenes of possible crimes.

On May 27 the detectives told defendant that one of them had been harassed by a man in Fall River. They wanted defendant to find them a gun so that they could shoot out some windows in the assailant's house. Defendant responded that this was not a good idea; bullets could be traced to firearms. A better idea would be to burn or blow up the person's car. He also advocated use of a shotgun, which would be harder to trace, and said he had one "stashed."

On June 2, O'Donnell reminded defendant of his need for a gun for the Fall River matter; defendant replied that he had seen one person, but that that person did not have a gun. On June 11, DelPrete, sporting a black eye from playing basketball, told defendant that the Fall River assailant had given it to him and again asked for a firearm. The request was repeated on June 16, defendant replying that he had unsuccessfully approached two people. Finally, on June 27, defendant was told that the Fall River project was off; DelPrete told defendant that he had gotten his revenge by smashing his adversary's car with a bat.

Meanwhile, defendant and the detectives took a number of automobile trips. They drove to Pennsylvania to rob a tractor/trailer, defendant having brought along some burglar's tools. The operation was aborted when, as planned by the detectives, they were stopped but not arrested by police. On another occasion they followed a UPS truck but did not stop it. On still another occasion. they drove to southern Rhode Island to look over a VFW hall that supposedly had a safe to be cracked. And on the night of June 29-30, they spent hours in the woods near the Meehan Armored Car facility.

Defendant described the "pattern" that he said he followed in almost any conversation with the detectives:

I would first tell them the story, flush [sic] out the details, then I would find perhaps some fault with it and say, "We would have to go up there and check it out." Ride, stall, talk, stall and then get them off on to something else.

(4) The Fourth Month--Denouement. The record reveals no action or talk about firearms between the end of June and July 21. DelPrete testified that the detectives kept in contact with defendant, who was still producing counterfeit coins, and that he apparently had only limited resources and expected an imminent foreclosure on his house.

On Thursday, July 21, the detectives visited defendant at his home, where he was soldering some costume jewelry. Defendant said he made three dollars an hour but that his supplier, to whom he owed money, was not going to pay him. O'Donnell interjected, "By Monday you could have---we owe you, Bob. We really do." Then the detectives told defendant that their casino contact was quitting the following month, but that he would make one last exchange of money for 2500 counterfeit coins.

The conversation then turned to the detectives' plans to rob a nightclub on Cape Cod, where they expected to get "12 grand easy." Since they understood that the bartender carried a gun, they wanted defendant to obtain a firearm for them.

Then followed lengthy discussion about the planning. Defendant asked when the detectives would accost the bartender and how they would make their getaway. He also suggested a trip to the nightclub. O'Donnell replied that this would delay the heist for...