United States v. Baker, 18-1663
| Decision Date | 24 May 2019 |
| Docket Number | No. 18-1663,18-1663 |
| Citation | 928 F.3d 291 |
| Parties | UNITED STATES of America v. Tyson BAKER, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Jack J. McMahon, Jr., 139 North Croskey Street, Philadelphia, PA 19103, Counsel for Appellant
William A. Behe, Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-16-cr-00018-001), District Judge: Hon. Sylvia H. Rambo
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.
Tyson Baker appeals his convictions for stealing public property and for related offenses. He complains of the District Court’s denial of his request for a jury instruction on entrapment, the jury instruction that was given on intent, and the exclusion of his wife’s testimony regarding her medical expenses. For the reasons that follow, we will affirm.
Baker was employed as a police officer by the Fairview Township Police Department in York County, Pennsylvania. In 2015, the FBI approached Baker’s fellow officer Michael Bennage to assist in an investigation into allegations that Baker was involved in the theft of drug proceeds. Bennage reluctantly agreed to "keep [his] ear to the ground" and "report back to them what [he] saw or heard." (App. at 45.)
He did so. A few months later, he relayed to the FBI that Baker had suggested to him that "we ... start ripping off drug dealers as a means to help financially with our individual bills and stresses of life." (App. at 48.) An FBI agent then gave Bennage a recording device to capture any future incriminating conversations. In September 2015, Bennage recorded a conversation with Baker during which, in response to Bennage’s statement that he had heard of a drug dealer who would be transporting a large sum of money, Baker said it sounded "like a rip to me, a straight up rip." (App. at 52.)
A few weeks passed without incident. Then, on November 17th, Baker apparently learned from a police report prepared by Bennage that Bennage had found cash on a drug-overdose victim, and Baker indicated he wanted some of the money. He texted, (App. at 57.) Bennage responded that other officers had been watching him, to which Baker texted, (App. at 58.)
Three days afterwards, on November 20, Bennage secured a search warrant for a residence suspected to be used in illegal drug transactions. In the process of executing that warrant, Bennage and other officers discovered multiple stacks of cash amounting to $1,000 each. Baker arrived at the scene hours later, after sending an unexpected text to Bennage saying that he would help with the evidence. Baker told Bennage, "tonight’s the night, don’t get greedy, be smart." (App. at 70.) Later that day, after the drug proceeds had been moved to the conference room, Baker told Bennage the stacks should be "less two[ ]" for the two of them to split. (App. at 82, 472.) Baker ultimately told Bennage to put his share, a single stack, in a toolbox in Baker’s truck.2
Less than a month later, on December 16th, the FBI and Bennage executed an undercover operation in which Bennage and Baker would stop an FBI agent travelling with $15,000 and posing as a drug trafficker. The operation went according to plan: Bennage pulled over the undercover officer, and Baker arrived at the scene shortly thereafter. Bennage then took the ‘trafficker’ in for booking, leaving Baker alone with the vehicle. Once alone, Baker had the car towed to a garage and searched it. He discovered a bag containing the $15,000. Unbeknownst to Baker, the FBI had installed cameras in the vehicle and remotely watched the entire process. Baker took $3,000.3 Baker later described that theft as the result of his "ugly thoughts[.]" (App. at 478.)
He was taken into custody by the FBI two days later, and he confessed to the thefts that took place on November 20th and December 16th. Procedural History
A grand jury returned an eight count indictment against Baker, including a charge for stealing or embezzling public money, in violation of 18 U.S.C. § 641. Baker subsequently entered into a plea agreement, pursuant to which he pled guilty to violating § 641. He was later permitted to withdraw that plea, and he eventually proceeded to trial.
At trial, Baker made three requests that are at issue on this appeal. First, he asked the District Court to give a jury instruction on the defense of entrapment, but he and the government agreed to wait until "the conclusion of testimony" for the Court to "make [its] decision whether ... [he had] fairly raised [the defense]." (App. at 446.) After the close of testimony, the District Court decided that an entrapment instruction was not warranted and did not give the requested instruction.
Second, Baker requested a jury instruction requiring the government to prove a violation of 18 U.S.C. § 641 with evidence that he had an intent to permanently deprive the government of its money, and stating that a temporary deprivation was insufficient. The District Court disagreed and instructed the jury that "[t]o steal or knowingly convert [within the meaning of § 641 ] means ... [to do so] with intent to deprive the owner of its use or benefit either temporarily or permanently." (App. at 557.)
Third, Baker wanted to present testimony by his wife about the financial burden created by her cancer-related medical bills. Baker gave two reasons for offering that evidence: first, to demonstrate that he did not intend to permanently deprive the government of its money, and, second, to respond to the government’s evidence showing his nice home.4 The District Court concluded that the first purpose was irrelevant. As to the second purpose, the Court excluded the proposed testimony, saying there was a risk of unfair prejudice to the government due to sympathy for a cancer survivor. The District Court did, however, rule that Baker and his wife could explain the fine quality of the house, by saying, for example, that Mrs. Baker’s parents helped pay for it.5 And, the Court allowed Baker himself to testify about the burdens associated with his wife’s medical bills, though it did not allow Mrs. Baker to discuss them.
The jury found Baker guilty of violating § 641 by stealing or embezzling public funds, and also convicted him of related offenses in violation of 18 U.S.C. §§ 1001, 1519, and 2232.6 The District Court sentenced him to forty-two months’ imprisonment, to be followed by two years of supervised release. Baker timely appealed.
Baker argues on appeal that the District Court erred by (1) refusing to instruct the jury on entrapment, (2) refusing to instruct the jury that an intent to permanently deprive, as opposed to temporarily deprive, the government of property is necessary to establish theft under § 641, and (3) excluding Mrs. Baker’s testimony about her medical expenses. We disagree with his contentions on all points.
Baker argues that the District Court erred in denying his "request for an entrapment instruction despite there being evidence to support one." (Opening Br. at 13.) An entrapment instruction is warranted when there is "inducement by the government to commit the crime," and "the defendant[ ] lack[s] [the] predisposition to commit the crime." United States v. Dennis , 826 F.3d 683, 690 (3d Cir. 2016). "Under our jurisprudence, to make an entrapment defense a defendant must come forward with some evidence as to both inducement and non-predisposition." United States v. El-Gawli , 837 F.2d 142, 145 (3d Cir. 1988). At the least, Baker failed to carry his burden with respect to inducement, and thus an entrapment instruction was not warranted.
Inducement is not "mere solicitation" or "merely opening an opportunity for a crime[.]" Dennis , 826 F.3d at 690. Rather, "the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship." Id. (internal quotations and citations omitted).
There is, however, no evidence that the government did anything of the sort here. At the outset, the FBI did not instruct Bennage to set up a crime or organize a sting operation. Bennage was simply asked to "keep [his] ear to the ground" regarding Baker.8 (App. at 45.) The first theft, on November 20, 2015, confirms that Baker, not Bennage, was the orchestrator. Baker unexpectedly inserted himself into the processing of a crime scene, texting and offering to help with the evidence. Baker’s own testimony made clear that Bennage did not influence or otherwise motivate the decision to steal on that occasion. Instead, Baker’s motivation was:
Being tired, not sleepy tired. Tired. Tired, tired mentally. Tired – I don’t remember what movie, but it was the Rocky movie that said, Well, I was getting punched in the face, and I was tired.
(App at 473.)
Baker’s second theft, on December 16, 2015, likewise does not present evidence of inducement. While that theft was based on an FBI undercover operation, according to Baker’s own testimony, his motivation was internal, stemming from "ugly" thoughts and being "tired" and "weak." (App. at 478.) Baker testified, moreover, that Bennage did not harass or persuade him to steal:
(App. at 495.) Baker’s actions, according to his testimony, were the result of his own...
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