evidence on both elements of interrupting his lack of predisposed disposition to commit the offense and government inducement of and that was his word simply to produce evidence on both elements of the traffic court said new united states versus blood that the discretion review to this but happen hasn't this six circuit decided in that case called the nec a public's case in two thousand level that it is abuse of discretion and the court has said that in the united states versus polson as well i'll say that there isn't a distinction between them here the abuse of discretion standard is simply whether the the requested instruction was  yes i mean there's clearly a problem if the district court judge doesn't understand when entrapment means so having trouble just getting what the point of it is i don't think that's going on but don't district judges have discretion in just trying to say ok i've got this  got this jury i'm trying to make sure that they have in front of them the right things to think about and is in the quite appropriate to say no i i think this is a flawed detour this really isn't what this case is about and that's why i'm not going to allow the instruction in that there's some discretion over that choice because it would just be seemed to me really strange to say that court of appeals judges could look at it after the fact and so i guess i would have given it and that's enough to say reverse if there is some discretion it's simply discretion to judge whether they did the evidence the defendant produced was sufficient for any reasonable jury to find entrapment and that's what all been produced here and also meant that  bending the will the one kind of initiating the what turns out to be the illegal conduct and here we have quite a bit of evidence it seems to me that shows that that's a hard case to make two points on th iran i think the average all on presented strong evidence that it was indeed philip she should be the government's asian who first raised the idea of creating these receipts to document the transaction it doesn't get much stronger than she should meeting on the stand i brought it up and that's on page id twelve twenty three but and if that said right he was the first one to have the idea i know he brings it up later but i didn't is that true that he was the first one to have the idea overseas yes your honor and zero five seven and that's by philip shisha the government's agent and that followed she should saying things like i need to have an explanation for these payments i need something to show them all been confirmed that with his testimony that it was she should who brought it up know some form of conspiracy to do bad things and one person is not participating in the conversation a conversation that occurs well before cooperation with the government and it's not even initiated by the government eventually agent will say that you then say that that's entrapment that seems odd to me the whole point was cover up to the point is is is where the criminal intent originated and here to certainly wasn't so with all of the one who was convicted here happened every statement by by all of one occurred after the january nineteenth initial contact which she showed the initial meeting and that's the meeting where she should suggests threads that he's going to commit suicide is life is falling apart that he's that he's going bankrupt and the reason that's so important is because the supreme court has instructed that it's that first contact that's what we look at to determine whether the the defendant was predisposed to commit the crime that's wrong jacobson versus united states prosecution must prove prove beyond reasonable doubt that the defendant was disposed to commit the crime a lot prior to being first approached by the government in this court in the united states personal sweden at a publish decision right on that point  and it's ok do we look at the time of the criminal act or the time the initial approach in the court held that that it's the time of the initial contact with the governor and the reason that's important is because the government's burden a trial on a tr this they to they don't have to prove beyond a reasonable doubt that when all a bond first set foot in that meeting with shisha general nineteen that he was already predisposed to commit the crime of obstruction of justice through the means of false documents and it is that's their burden and that's a tough burden to meet beyond a reasonable doubt with a guy that had no criminal history whatsoever stood to profit nothing from from this transaction  and so the government presented evidence that it was she should that raise this idea the nature of the inducement here was it was pretty extraordinary the threat of suicide and there's been a suggestion that there was a passing criminal activity was made by shisha so all in all it was all gone but there's more than one meeting yes and what they all initiated by our boss i think that's fair to say yes that seems a little troubling well that maybe he was friends with she should he was still friends with with cause me i mean but they weren't you know getting together to talk about a baseball team i mean they were getting together to talk about what to do about this you know he was saying w receipt prepared in order to try to demonstrate that these were loans right all the bond testified that it was she sure was idea the government's agent idea to create the receipts to document the defendant was charged with obstructing justice by helping create a document to try to demonstrate that there was no bribery yes my correct  that went to the jury he testified the jury found him guilty of being an accessory or he challenging that portion of the judgment we are your honor based on not a sufficiency of the the idea of creating these receipts is by shisha and after these emotional inducements the threats of suicide is that it and that his life was falling apart and all of one testified that i mean that's the reason he agreed to get sort of in the middle of this was that he was friends with both of them they were both saying the laws are falling apart took his threats of suicide very seriously and he wanted to his testimony was i wanted to get at get them out of that crazy mode  of trying to kill themselves and and move on down was all a balance to be enough for you to get the entrapment instruction if the sole evidence you had was this  you know got up on the stand it said it was the government's idea all along had never even want to consider buying drugs the government pointed to evidence that on the tape itself the defendant had referred to his previous drug dealing he had a drug dealing so that the short answer question judges it would meet your tos burden of policing elements evidence of what predisposition unless it was entirely inconsistent with the the rust somebody else here cause me it it's the ideas initiated to this person who eventually not then but eventually becomes a government cooperate or then that person mentions a third party so all three were part of the conspiracy that the the focus of predisposition always focuses on the defendant and as with respect to did to the defendant all of on where did the current of the criminal intent originate the idea of creating receipts not all of them with w idea of receipt is not it is not him to bring it up showing that he was the originator of the criminal intent which is the issue which is the question did the criminal intent originate with with all of one or did it originate with somebody else and it was somebody else and if there's a factual dispute on this point that it's a jury question but you're saying that the un rebutted testimony that the first time hears of the receipt was not alibi and saying days later general twenty second and that's just she should all of on but still no receipts have been created that point puzzled by this theory that the you're right it's about predisposition but i mean if you if the conversations even bond show that it was causing these idea i mean it's not following that that that somehow establishes entrapment you don't you don't you don't look at predisposition in the abstract you look at predisposition in connection with whether the government is the one that bent the will and created the disposition to do something that's the that's the point of the pre you don't you're just ask yourself in the abstract with this person of committed this crime you know you have a se these idea so you can't i just i'm blanking on the connection the question here is whether beyond reasonable doubt all of bond was already predisposed to commit this specific crime of obstruction of justice by means of false documents and did on january nineteenth the day before this when he walked in was she sure and that's from from jacobson and it has to be the specific affair let me let me put isolate the point this way think if of the case sheesha involved but the idea of doing receipts only comes from cause me to alibi you would never think at that point no we have to ask ourselves before cause we mentioned was predisposed to make up false receipts to cover their tracks because it would have come from someone who wasn't a government witness at the time on a right you know even if it if even if  have an attractant defense when two defendants neither one cooperate with the government there coconspirators and only one person gets to originate ideas and so they have five ideas for covering their tracks one idea comes from cause me and now we say you get an entrapment defense because you have to ask yourself would have done this without the suggestion from cause me you could and the reason is what say that caused me to originated the the received ok and there's no government foreman anywhere in the let's say because she sure is involved in this but he's not the first one i brought up but it was she shows extraordinary inducements you know saying i'm going to you know i'm going to kill myself and i'll be on testifies look at the reason i want to long with this idea of creating the receipts were over it came from is because the government agent played to my emotions played my sympathies and so and so i was convinced after michael initial contact with the government agent to ultimately go along with this and create a receipt so i do think you could other trouble and you certainly could have it where there's a factual dispute about where this none so whether or not house me and shisha talked about creating recedes ahead of time is not really relevant to the question of whether it's predisposed to creating reseeds at the time that she should have their discussions absolutely correct or not so so we can hypothesize different things but based on the evidence here the only evidence is that she  question i'll note that when they met when they first met the second time they met alone on general twenty second the shisha says again according to to dol van i know you had nothing to do with it it was not something did done for you  whatever but the problem is if i need to be faced with an issue going with the attorney and all that i have to have a good explanation so then he follows that that is your honor i don't have the page idea for that but i'll find it  good morning to us we're pleased the court my name is sheldon lloyd i represent the united states in this case i think the court has got one of the essential problems with the serious difference in this case  and that is whether under the circumstances of this case there was any evidence much less sufficient evidence of the government being involved in to sing mr alabama to commit the obstruction of justice that he did in a plane i want to make with respect to that is that much of the case law regarding entrapment  goes to situations where it is some sort of government sting operation where the government puts an informant in play for the purpose of either buying myself if i can get out of this problem would that be enough to allow him to get instruction i don't think that would be enough because there is  no linkage between the statement of going to kill myself and saying i want you to do something criminal and falls and i would go back to the record in this case the statement that  the defense has focused on as being him first bringing up the issue of receipts doesn't even contain the word receipts shisha says and this is a page id twenty fifty two but i need to have something for me to show what should i tell them that's not an inducement that's not a suggestion of what to do what is the record show happened next what happened next is cast mate a few lines later says well actually she says i have to show if you paid me back off you remember in the theater you said to pay cash and unintelligible who are arranged the meeting once he got into contact with shisha he arranged a meeting of the three of them cast me alabama and she show and that's the meeting that started with al a band meeting shisha at a ni stein bakery and asking him if he's wearing a wire and then when he says he's not they join with kat as me who was in the starbucks next door and they go to alabama car and drive and this is near the beginning of that conversation the logical thing in the course of an to geisha which is what i have to do we're under investigation i'm worried what should i do and then the conversation turns to prior conversation the cast me had with at the theater a great lakes mind introduced how was that introduced how was the topic introduced so i mean the conversation turns to the prior conversation between cause how much is it tell me that how much it is so it's cast me saying how much money do i need to give you and what should we put on the receipt and then has a nice conversation with show and later on on twenty money is not been repaid from all of the money that she should give them to cast me over the ages you know maybe this this whole point neutralizes a little bit this question of who initiates the receipt idea but what about th independent point that council makes that well you can still bend someone's will by threats or you know playing to emotions and saying you want to kill yourself and so forth so isn't that possibly an independent reason for th goes to a separate element there are two elements as to which the defense must bring sufficient evidence that a reasonable jury would find both of the elements and the first one is induce by the government improper inducement by the government and here the scheme doesn't even initiate with the government in fact to get back to the point i was making earlier at this point she shoes role was not to seek to induce or to cause anything to happen this was a broader investigation and the investigation was really focused on kaz me and the payments that he had extorted or received from shisha and to see whether additional evidence would be developed through these conversations to support the case against kaz me and and she should was said in under the circumstances because he was cooperating he had provided information about all of these payments he probably had provided documentation to support what he said about those payments and he was seeking to see what cast me and possibly alabama would say that would support an investigation of the bribe slash extortion scheme that had taken place there was no objective here to induce anything the objective was to see what cast me to say i would say and then as cast me backed out and used alabama as his middle man to see what alabama would say so there was not a government  inducement and ice would submit there was not sufficient evidence with regard to predisposition either because predisposition revolves largely around fact legal three of them really relate to inducement to do scheme originate with the government did the defendant display reluctance to carry on with the scheme and i submit there was no reluctance to carry on this scheme the defendant thanks to a point in the transcript where mr aliments says i'm not comfortable but then he goes forward he's not comfortable that's reflecting his knowledge that what he's doing is wrong but his statement that i'm not comfortable is not hesitation the defendant thanks to the fact that later on alabama throws away the five separate receipts that he had created at the fed ex store in favor of a single document that says everything's even as of august sixteenth two thousand and eleven again that is not reluctance to go forward that is a decision th five receipts were awkward and were not a good way of accomplishing what he wanted to accomplish and a single document would be able or effective way of doing it the nature of the inducement if there was  there how many meetings there were a total of five meetings four of which were recorded the first meeting was not recorded the second meeting was the meeting the cast me was present for and then there were three additional meetings that were recorded and does alibi initiated machine not really initiate by anybody i think the record will reflect that they were either initiated by alabama or they were jointly initiated it was not a matter of like in the middle gill case that was recently cited what's it mean to be jointly initiated how does that somebody send someone a text message him says shall we get together and there's a response so those came from and she shipped first some of the text messages were for she said well let me back off that was a hypothetical on my part i can't say for sure you know whether there was a specific initiation or not i would have to look to the beginning of each conversation to say for sure who initiated it but it certainly was not something quite sure was pestering alabama repeatedly to meet again to meet again in fact it was alabama at the third meeting who suggested we need to write a receipt and the fourth meeting was the meeting at the fed ex where a series of five receipts were created by using a computer and alabama was the moving force for that to happen finally the clerk raised at the very beginning of  defendants argument the issue of the weather what's the standard of review in a case like this and the six circuit cases that have addressed the standard of review in deciding whether or not evidence well the standard is not whether there is some evidence the standard as stated in mathews versus the united states the supreme court case is whether or not there is sufficient evidence for a reasonable jury to find both elements of the defense it's not whether there is some evidence or and in any evidence it's whether there is sufficient evidence for reasonable jury to find the defense and with regard to the standard of review the defendant suggests that no other circuit has adopted an abuse of discretion standard i didn't go to great detail into this issue in my appellate brief but on some further research i found two reported eight circuit cases dealing directly with the issue of whether or not to give an entrapment instruction which said to the extent that the district court's legal conclusion whether the defendant's theory of defense accurately reflected the norm was based on factual findings we review for clear error or and that's in accord with with my thoughts about it it's essentially a fact belan determination based upon an appreciation of the entire record the context of the entire record the inflections involved in the conversations and all of the details that are not directly available for the court of appeals that goes into the determination whether or not to give the instruction based upon the record as a whole new two cases i'm referring to are united states versus our dri and united states first is chase and they are at seven third eleven eighty nine and seven seventeen fed third six fifty one both from the a circus thank you government argued that the reason to an objective to induce on the part and she says behalf what i think is especially extraordinary about this case is she should made it on the stand that it was his express purpose to manipulate  through these emotional pleas and he said page eighty one zero zero one showed mr obama that i'm worried so he could be helpful to give me the information i needed i was on a mission or giving information for the investigation when asked whether he had to lie about his emotional state humidity did want to make sure that i gave the government all the information i'm supposed to so he was laying out this you know threatening suicide saying he was you know his life was falling apart for the specific purpose of drawing  meetings on you know on i'm showing him that my life is falling apart so that i can you know so i can provide information with government and and save my own either which your response to mr lights point at the beginning when he was talking about the receipt idea and the first time it came it was an explicitly recy that if i'm understanding the record conversations when it gets more explicit it sounded like all three people were participating conversation first with just she should almost enter nineteen meeting is not recorded i want testifies that she she said that he she she said i need to give them some kind of explanation for that and they leave it at that next day all three of them meet first mention of receipt his body i mentioned that caused me was that it was a clear reference point to cause me having had the idea there's it oh don't dispute the clear reference point it sort of comes out of nowhere of she's not some supported in the record that is the these the standard united states versus board judge moore's opinion quote a district court must charge the jury with an instruction and it was it in a tribal destruction in the case on the defense theory of the case if the theory has some support of the evidence and the law but not when it's based on mere speculation and so if there is some support in the in the record for an instruction then it has to be given and that's what that means to really a difference between some support and sufficient for a reasonable juror to accept that i mean no i think that it's kind of the same thing it is acquittal and the government has to prove beyond a reasonable doubt that the defendant was already predisposed to commit this specific crime when he first made contact with the the government's agent and it is that that fine and the supreme court in jacobson the the defended look at de dead to rights criminal already he possessed child pornography and the supreme court said well that may be true he may have been predisposed to possess real pornography but he was convicted of distributing and so government you have to prove that he was already predisposed to distribute when he has initiated these these meetings and so the government has to prove beyond a reasonable doubt that all bon who had no criminal history whatsoever had nothing to gain from any of this was already predisposed twenty first not