Argued January 20, 2015
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:11-cr-00053-PPS-APR-1 -- Philip P. Simon, Chief Judge.
For United States of America, Plaintiff - Appellee: Gary Bell, Daniel L. Bella, Attorney, Office of The United States Attorney, Hammond, IN.
For John D. Smith, Defendant - Appellant: Defendant - Appellant, Latham & Watkins Llp, Chicago, IL.
Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge.[*]
Ripple, Circuit Judge.
John Smith was arrested after a sting operation in
which the Government had organized two fictional drug transactions. Based on his
participation in that operation, a jury convicted Mr. Smith of both conspiring
and attempting to possess with intent to distribute more than five kilograms of
cocaine, transferring firearms with knowledge that they would be used in a drug
trafficking crime, and possessing a firearm in furtherance of a drug trafficking
crime. Mr. Smith appeals his conviction, arguing that the Government's conduct
violated his right to due process of law by coercing him to engage in illegal
activity. After careful study of the governing case law and of the record, we
conclude that no such coercion took place. The district court, therefore, did
not plainly err by failing to dismiss Mr. Smith's indictment. We therefore
affirm the judgment of the district court.
Prior to his arrest, Mr. Smith was a part-time police officer and the owner of security and towing businesses. In 2009, Detective Shani Anderson began investigating Mr. Smith for employment tax crimes and other offenses. She eventually enlisted Jon Roberson, one of Mr. Smith's employees, as an informant. Mr. Smith had become close friends with Roberson, who previously had been a member of the Latin Kings street gang and had been convicted of selling drugs and of shooting a rival drug dealer. Roberson told Detective Anderson that Mr. Smith had committed insurance fraud and arson and that he had extorted money from undocumented immigrants.
In the fall of 2010, Mr. Smith told Roberson that he needed money. According to Roberson, Mr. Smith knew that drug dealing was taking place at the apartment complexes where he provided security services, and he asked Roberson to find a drug stash house that he could rob while wearing police gear. He also asked if Roberson knew any Latin Kings that needed security protection while transporting drugs. Roberson relayed this information to Detective Anderson, and she referred the case to the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ).
The ATF agent overseeing the investigation continued to use Roberson as a confidential informant. The agent decided to operate in an undercover capacity to determine if Roberson accurately had reported that Mr. Smith was willing to provide security protection for a drug organization. Roberson introduced the agent to Mr. Smith as " Danny," Roberson's longtime friend with ties to New York drug dealers and mobsters. During their first meeting, Danny mentioned that he might need some " security type stuff," to which Mr. Smith replied, " I'll hook you up. ...I'm loyal as the day is long. Anything you and I talk about, it's me and you," and, " I'm all about making money."  Mr. Smith also suggested that he could help " [c]lean" money for Danny. Mr. Smith described how others had asked him to make a drug run using his police car, but he had declined because he wanted to " make several trips" and make more money. Mr. Smith told Danny that he carried assault weapons and that he absolutely would watch Danny's back. Near the end of the meeting, Mr. Smith explained that he would use his badge to get out of trouble if they were pulled over. Danny asked if Mr. Smith knew anyone else who could assist them, and Mr. Smith stated that he knew another police officer who, like him, was " all about money."  Before parting ways, Mr. Smith asked Danny to give him a call.
Five days later, Danny came to Mr. Smith's towing business. Danny told Mr. Smith that he did " runs" for people from New York who " aint no joke."  Mr. Smith responded, " It's all good," and told Danny that he could " transport or move or whatever...you want to do to whatever. I don't care. ...I'll just watch your back."  Mr. Smith then asked how much money he would make and suggested that they take his car on any runs because the police would be less suspicious if they ran his plate. He reassured Danny that he was willing to kill. Mr. Smith also told Danny that he was " a ...