United States Court of Appeals

For the First Circuit

No. 03-1470

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT C. LUISI, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Selya, Senior Circuit Judge,

and Howard, Circuit Judge.

John H. LaChance for appellant.

Cynthia A. Young, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief,

for appellee.

April 10, 2007
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LYNCH, Circuit Judge. Defendant Robert C. Luisi, Jr., an

admitted member of the "La Cosa Nostra" (LCN) crime family, appeals

his convictions on three cocaine-related charges. These

convictions stemmed from an FBI investigation that employed a paid

cooperating witness and LCN member, Ronald Previte.

At trial, Luisi testified and admitted his involvement in

the cocaine transactions. His defense was entrapment, on

intertwined theories. He claimed that Previte, acting for the

government along with undercover FBI agent Michael McGowan, had

improperly tried to induce him to commit drug crimes. He further

claimed that when he resisted, Previte persuaded Philadelphia LCN

boss Joseph Merlino to order Luisi to engage in the charged drug

transactions. Merlino was Luisi's superior in the LCN, and the

government was aware of the serious consequences Luisi would face

if he refused to follow Merlino's order.

The district court instructed the jury on the entrapment

defense. However, the court's supplemental instructions -- given

in response to a jury question -- foreclosed the jury from

considering Merlino's role in the asserted government entrapment of

Luisi. We conclude that those instructions were erroneous, and we

vacate the convictions and remand the case.

I.

In July 1999, a grand jury in the District of

Massachusetts indicted Luisi and three co-defendants on three
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charges: one count of conspiracy to possess cocaine with intent to

distribute, see 21 U.S.C. §§ 841(a)(1), 846, and two counts of

possession of cocaine with intent to distribute, see id. § 841(a).

The conspiracy was alleged to have run from February 1999 through

June 28, 1999. The two possession counts stemmed from transactions

on April 30, 1999, and June 3, 1999.

 Pursuant to plea agreements with the government, two of

Luisi's co-defendants pled guilty to the possession counts. The

indictment against the third was dismissed following that

defendant's death, leaving Luisi as the sole defendant at a trial

that commenced on September 9, 2002. We recount the key testimony.

In the late 1990s, the FBI conducted a major

investigation into the operations of the Philadelphia LCN.

Previte, a captain or "capo regime" in the LCN, assisted the FBI

investigation by working as a cooperating witness under a personal

services contract with the FBI. He was paid a substantial sum of

money in return.

The FBI came to learn that Luisi was working for the

Philadelphia LCN as a captain, and that he was supervising the

criminal activity that the organization undertook in Boston. Eager

to get evidence against Luisi, the FBI had Previte introduce Luisi

to McGowan, who posed as a source of illegal money-making

opportunities.
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The introduction took place over January 11th and 12th,

1999. McGowan operated under the pseudonym "Michael O'Sullivan"

and purported to be in the import/export business. He told Luisi

he had previously worked with Capo Previte in Philadelphia, and

said he had now relocated to Boston. McGowan explained to Luisi

that as part of his business he was sometimes presented with

"opportunities" and that sometimes he needed help taking advantage

of these "deals." Luisi agreed that he would look at future deals

with McGowan. Unbeknownst to Luisi, this conversation was being

recorded by the FBI -- as were the vast majority of the future

conversations Luisi would have with McGowan.

The first "opportunity" occurred on February 10, 1999,

when McGowan presented Luisi with several "stolen" furs. Luisi was

not sure if he would be able to sell them, but he stated he would

look into it. He also inquired whether McGowan had other items;

when McGowan mentioned the possibility of obtaining jewelry, Luisi

expressed more interest in that, and particularly in diamonds.

There was no mention of any drugs at this point.

Several days later, Luisi and Previte spoke to each other

at a party in Philadelphia. Merlino was also present at the party.

Luisi testified that Previte proposed a "swap" of cocaine for

diamonds, and that Luisi's response was that he would "try" to get

the deal done. He testified that he gave this response because "at

the party [Merlino] . . . made it very clear to me that he wanted
 We use the term "associate" in its ordinary colloquial 1

meaning. Luisi testified that the word "associate" conveys a

particular status within the LCN; we do not use the term in that

sense.

 McGowan testified that "brick" was code for "cocaine." 2

Luisi disputed that, testifying that his initial understanding was

that a "brick" referred to heroin, and that it took him a few

minutes to realize that McGowan was referring to cocaine.

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these drugs," although Luisi later clarified that he did not at

that time understand Merlino to be giving an "order" to do the

deal, but merely "permission." That would change. In any event,

Luisi testified that at or shortly after the party he chose not to

do the deal.

On March 8, 1999, McGowan again met with Luisi, along

with two of Luisi's associates. McGowan referred to Previte's 1

proposed swap and stated that he (McGowan) knew a guy with

diamonds, and that the guy was looking to exchange them for "three

bricks." Luisi's immediate response was: "I want to get them, I 2

want to bring them to [a jeweler friend of mine], if he likes it,

boom. We'll do the deal and I'll do it that way, whatever

[Previte] wants." McGowan interpreted this to mean that Luisi

wanted to see the diamonds, and that he would be willing to

exchange cocaine for them.

Several minutes later, however, Luisi took McGowan aside

privately. This part of the conversation was not recorded.

According to McGowan, Luisi told him that because Previte had

referred McGowan to him, Luisi would make "every effort" to get the
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cocaine, but it would be difficult and it would take time. Luisi

testified that he did not actually agree to do a drugs-for-diamonds

swap.

Also during the March 8th conversation, McGowan asked

Luisi what items, other than the diamonds, he would be interested

in. Luisi responded that he would be interested in jewelry,

watches, and cigarettes, and some of his associates mentioned film

and razor blades.

McGowan's next meeting with Luisi and his associates came

on March 11, 1999. McGowan had some "stolen" Polaroid film, and

the participants discussed how it was to be sold. Luisi reported

on his only partially successful attempts to sell fur coats, and

the participants also discussed diamonds and jewelry. Later during

the meeting, McGowan mentioned that Previte was coming up to Boston

in a few days, and Luisi agreed to meet with both Previte and

McGowan then. Luisi and his associates left with the film.

Previte came to Boston, and on March 16, 1999, he met

with McGowan, Luisi, and some of Luisi's associates. The

participants had a cryptic conversation during which, according to

McGowan, Luisi confirmed that he would get the cocaine-for-diamonds

deal done. The following day, McGowan talked to Luisi over the

phone, and again inquired into the status of the cocaine deal with

Previte. Luisi replied that he would work on it, but indicated

that the deal would not happen immediately.
 On the tapes, it is actually McGowan who first refers to 3

"Danny," and he states that he had heard about White from Previte.

However, a jury could conclude that Previte had first heard about

-7-

During this time, Luisi had also been trying to sell the

film that McGowan had given him on March 11th. He was unable to do

so at a price that McGowan was willing to accept, and so on March

19th Luisi returned the film. After Luisi again expressed his

preference for jewelry, and after McGowan again reaffirmed his

ability to get jewelry, the conversation turned back to the

proposed diamonds-for-cocaine deal. Luisi made comments that, if

taken at face value, expressed a reluctance to go ahead with the

deal and indicated that Luisi had "nothing to do with" the cocaine

business. Luisi also explained to McGowan that "in the last . . .

three years I lost over a dozen and a half guys to that. . . . And

I have to make a stern, a firm stand here. . . . I don't wanna have

nothing to do with it."

Luisi then said that he would send a guy named Danny

White, not affiliated with Luisi, to do the deal. Luisi told

McGowan that once White made contact with McGowan, McGowan would

have exactly seven days to complete the transaction. Luisi and

McGowan also discussed cash terms for the deal (even though the

deal had originally been conceived of as a barter for diamonds).

Luisi testified that Danny White actually is a fictitious

person whom Luisi made up in order to pretend that he was

cooperating with McGowan. McGowan testified that he never met 3
Danny White from Luisi.

 McGowan testified that this was due to the fact that Luisi 4

was out of town for one week, and that McGowan had informed Luisi

he would be out of town for the two weeks after that.

-8-

White at any point, that he never had any conversation with him,

and that he did not know whether White was a fictitious person or

not.

Luisi and McGowan had no contact with each other for the

next three weeks. On April 19, 1999, McGowan initiated a phone 4

conversation with Luisi. McGowan turned the discussion to dealings

with Previte, and Luisi responded that "[e]verything's gonna be

okay soon." McGowan understood this to be a reference to the

cocaine transaction.

McGowan initiated another phone conversation with Luisi

on April 23, 1999. McGowan told him that Previte would be coming

to Boston on April 28th, and he asked Luisi to be available then.

Luisi said he would probably be available, and he also said "I'm ah

gonna be calling you ah with my other friend any day." McGowan

interpreted the "other friend" to be a reference to Danny White.

In the same phone conversation, McGowan mentioned that he might

soon have more stolen property coming in.

On April 27, 1999, one day before Previte's planned trip

to Boston, Previte had a conversation with Merlino, his superior in

the LCN. Previte was wearing a wire, and the conversation was

recorded. As revealed by the tape, Previte complained to Merlino
-9-

that Luisi had not yet done the cocaine transaction, despite

Luisi's representations. Previte explained to Merlino that he had

"big money sittin[g] on the line," and that Merlino would also make

money from the transaction. He directly asked Merlino if there was

"any way you could just tell [Luisi] to do what he gotta do."

Merlino agreed to do so. Previte and Merlino then agreed that when

Previte went to Boston the next day, Previte would put Luisi on the

phone with Merlino, at which point Merlino would tell Luisi to do

the cocaine deal. As Merlino put it on the tape: "I'll say [to

Luisi:] whatever [Previte] says to do[,] just do it."

Previte was still cooperating with the FBI at the time he

had the conversation with Merlino, and a jury could conclude that

the FBI had in fact directed Previte's request of Merlino. Previte

did not testify, nor did any of the Philadelphia FBI agents who had

worked with him. But McGowan was asked if the FBI had arranged the

meeting between Previte and Merlino, and his response was that

while he did not know, he "assume[d] so because Previte was

cooperating."

Previte flew to Boston on the morning of April 28th, the

day after his conversation with Merlino. He went to McGowan's

office, and McGowan arranged for Previte to make a three-way call

with LCN boss Merlino and Capo Luisi, Merlino's underling. The

call was recorded in its entirety. It began with Previte calling

Luisi. Once Luisi was on the line, Previte brought Merlino into
 As recorded, the relevant portions of the conversation were 5

as follows:

Merlino: Bob, can that guy, you know, do what

he's got to do over there for him?

Luisi: Oh, yeah.

Merlino: All right.

Luisi: Yeah, that's, that's gonna, ah, that's

gonna be.

Previte: Okay.

Merlino: All right.

Luisi: You know?

Merlino: You got it.

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the conversation. After an exchange of preliminaries, Merlino

(somewhat cryptically) got down to business. Luisi testified that 5

he understood Merlino to be ordering him to get the cocaine deal

done, and that he agreed to do the deal as a result of this.

McGowan, who had been listening in to the conversation,

testified to having a similar understanding. As he put it,

"[a]fter this phone conversation, I expected to receive cocaine."

His hopes were soon realized.

Within an hour after Merlino spoke to Luisi, Luisi met

with Previte and McGowan to confirm details of the drug

transaction. Initially, Previte and Luisi had a private

conversation to work out certain points, and Previte explained that

McGowan wanted to do multiple cocaine deals. Luisi agreed, and the
 Carrozza's exact relationship to Luisi is somewhat unclear, 6

but there was testimony suggesting that Carrozza was in some way

affiliated with the LCN. There was also evidence that Carrozza

worked directly with Luisi and Vetere.

-11-

private conversation ended shortly thereafter. With Luisi looking

on, Previte then informed McGowan that the mysterious Danny White

would not be playing a role in the deal, and that his place would

be taken by Shawn Vetere, one of Luisi's associates. Vetere

promptly put McGowan in touch with Bobby Carrozza. McGowan worked 6

out more details with Carrozza. On April 30, 1999 -- two days

after the call with Merlino -- Carrozza sold two kilograms of

cocaine to McGowan. Carrozza told McGowan that the cocaine came

"right from [Luisi and Vetere]. I wouldn't be able to do it any

other way."

Two weeks later, McGowan gave Luisi a $1,000 "tribute"

payment for arranging the transaction. McGowan and Luisi also

engaged in preliminary discussions about a future cocaine deal, and

Luisi told McGowan to work the rest out with Carrozza. McGowan did

so.

The next cocaine delivery was not immediately

forthcoming, however. On May 24, 1999, McGowan complained to

Luisi, who told him to be patient. On June 1, 1999, Luisi proposed

certain changes to the impending cocaine transaction; McGowan

agreed to the revised cocaine deal the next day, and he paid Luisi

the $24,000 cash price. On June 3, 1999, Carrozza and Tommy Wilson
 A third cocaine transaction was also negotiated, but it was 7

never fully executed. On June 25, 1999, Luisi informed McGowan

that the supply of cocaine had tightened and that things would be

"dead" for a while. Luisi was arrested three days later.

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(another of Luisi's associates) came to McGowan's office to deliver

one kilogram of cocaine. McGowan later gave Luisi a $500 "tribute"

payment for arranging the deal.7

Luisi was the sole witness to testify for the defense.

He testified to several additional pertinent points. He admitted

that he had been a captain in the LCN since the fall of 1998, and

he agreed that the LCN was properly described as "the Mafia" and as

"the mob." As a captain, one of his jobs had been to make

"tribute" payments to Merlino, and these payments had come out of

Luisi's earnings from the criminal enterprises conducted by his

"crew" in Boston. Luisi explained that the LCN was extremely

hierarchical, and he stated that when the head of the LCN ordered

him to do the cocaine transaction, he felt that he had no

alternative other than to fulfill the order. He was also asked why

he had engaged in the second cocaine transaction; while he did not

specifically reference Merlino's order, he responded that he had

not wanted to do the drug deal, and he did so because he "had to

bring money to Philadelphia" and so he "was desperate."

Luisi admitted that at one point in his life he had been

involved in drug distribution. However, he testified that he

stopped his involvement in that business when he joined the LCN in
 On cross-examination, the government attempted to impeach 8

Luisi by suggesting that the spiritual encounter was not genuine.

Luisi admitted that at least one member of his crew had been

"dabbling" in cocaine even after Luisi claimed to have ceased his

involvement with drugs. Luisi also admitted that he was aware of

this "dabbling," and that he shared in the profits that resulted

from it. Luisi did say that the drug quantities involved in this

"dabbling" where much smaller than the quantities involved in the

deals with McGowan.

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mid-1998, and he gave several reasons for this. At the time Luisi

joined, Georgie Borghesi (another LCN captain) and Merlino both

told Luisi that he was not to deal drugs. Additionally, Luisi

testified that around that time he had a "spiritual encounter," and

he realized that his "whole lifestyle was wrong." Because he was

an LCN captain, he found it difficult to realize fully his

spiritual aspirations, but he testified that he was at least

partially able to implement them by ending his involvement with

drugs as of late 1998.8

Luisi also offered an explanation for why he had seemed

receptive to the cocaine deal, even before receiving the order from

Merlino on April 28th. He claimed he had been trying to "pal off"

McGowan and Previte; that is, he politely pretended to be

cooperating with them on the drug deal, while in fact he had no

intention of ever delivering drugs to them.

Before the jury was instructed, Luisi's attorney asked

the district court to dismiss the case on the ground that the

government had engaged in allegedly outrageous conduct, thereby

violating Luisi's due process rights. The court never ruled on
The district court did not provide a definition for the term 9

"government agent."

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that motion; such a motion is an issue for the judge and not the

jury. See United States v. Bradley, 820 F.2d 3, 7 n.5 (1st Cir.

1987). However, over the government's objection, the district

court did agree that Luisi was entitled to an entrapment

instruction.

The district court's entrapment instructions correctly

informed the jury that the government had the burden to prove,

beyond a reasonable doubt, that Luisi had not been entrapped. See

United States v. Walter, 434 F.3d 30, 37 (1st Cir. 2006). The

district court further explained that the government had to prove,

beyond a reasonable doubt, that at least one of two things was

true: either (1) "no government agent or person acting on behalf 9

[of] or . . . under [the] auspices of the government persuaded or

induced the defendant to commit" the charged crimes; or (2) "the

defendant was ready and willing to commit the [charged] crime[s]

without persuasion from the government." This was also a correct

statement of the law. See United States v. Gamache, 156 F.3d 1, 9

(1st Cir. 1998) (explaining that the two prongs of an entrapment

defense are improper government inducement and lack of

predisposition).

Luisi specifically asked for an instruction indicating

that if the jury found that Previte had induced Merlino, that meant
-15-

that Merlino's order could be considered government action. The

district court refused, stating that the instruction was improper

because there was a factual dispute over whether the government's

responsibility ended due to the presence of an intermediary.

Shortly after commencing deliberations, the jury sent the

court a question that revealed it was considering Merlino's role

and how it related to the entrapment defense. The jury asked: "Is

Merlino's request of Luisi, if determined to be excessive pressure,

considered to be government persuasion or inducement because the

contact between Merlino and Luisi resulted from the government

agent Previte and Merlino?"

The court and the parties researched the issue overnight,

and returned in the morning to discuss the proper response. Luisi

contended that because Previte had spoken to Merlino about the

cocaine transaction, and because Merlino's order had been

facilitated by Previte and McGowan (the latter of whom had actually

placed the three-way call to Merlino), the actions of Merlino,

Previte, and McGowan together could be attributed to the

government. The government disagreed, and based its argument on a

case from outside this circuit, United States v. Washington, 106

F.3d 983 (D.C. Cir. 1997). The government described Luisi's

asserted defense as "derivative entrapment," and it claimed that

Washington was the only case it could find recognizing the defense.
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As the government read Washington, Luisi's claim was foreclosed on

the facts presented.

The court took a different route, and it ultimately

concluded that a case from this circuit, United States v. Bradley,

was controlling. In Bradley a prison inmate named Constanza, who

could have been deemed to have been acting as a government agent,

directly threatened an intermediary named Brenner to do a drug deal

on pain of physical harm. 820 F.2d at 5-6. The intermediary was

unable to do the deal on his own, and he in turn pressured his

friend -- the defendant Bradley -- to assist him. See id. at 7-8.

We found the evidence sufficient to support an entrapment

instruction for the intermediary Brenner, as the government agent

had directly threatened him. Id. But we held that Brenner's

friend, defendant Bradley, was not entitled to an entrapment

instruction: while Brenner could claim duress, Bradley had "only an

appeal to sympathy, which he was free to reject." Id. at 7. We

stated that we "would not extend the [entrapment] defense to a

remote defendant without, at least, a showing that pressure had

been put upon him by the intermediary at the instruction of the

government agent." Id. at 8.

Thus in Bradley this court rejected defendant Bradley's

argument that the government's improper inducement of Brenner could

be an indirect entrapment of Bradley, as the agent (Constanza) had

neither ordered nor expected Brenner to entrap other persons. See
-17-

id. at 7. We said that a "quite different case would be presented

if Constanza had targeted a putative seller and had instructed

Brenner to put the arm on him." Id. We then added a footnote to

"suggest that such a case, though argued to be a third-party case,

is not really a third-party case at all. The intermediary in such

instance is really acting under instructions, as a government

subagent -- a quite different situation." Id. at 7 n.6.

The district court focused upon Bradley's use of the word

"instructions," and it read that case as concerned with whether the

government agent (Previte) had "instructed" the intermediary

(Merlino) to pressure Luisi. The court concluded that because

Previte ranked below Merlino in the LCN hierarchy, Previte was in

no position to "instruct" Merlino to do anything.

Although Luisi argued for a broader reading of the word

"instruct," the district court rejected such a reading of Bradley.

In the alternative, Luisi asked that the jury be allowed to

determine whether Merlino had been "instructed," but the court

rejected that option as well.

The district court then called the jury back into the

courtroom and answered the jury's question as follows:

[I]n your consideration of the entrapment

question, you should focus your attention on

the relationship -- the direct relationship

between Mr. Previte . . . and Mr. McGowan on

the one hand, and Mr. Luisi on the other hand.

You should consider evidence as [it] relates

to the direct contact between and among those

people.
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Because the district court omitted Merlino from this statement,

while simultaneously mentioning other individuals, the jury likely

concluded that it could not consider Merlino's role in any

inducement of Luisi. This was particularly so since the jury's

question specifically asked about Merlino, and the court told the

jury to focus on individuals other than Merlino. As a result, and

as the government has not disputed, the jury was precluded from

finding that Merlino's order to Luisi could be deemed improper

governmental inducement.

Later that day, the jury convicted Luisi on all three

counts of the indictment.

II.

Luisi's primary contention on appeal is that the district

court's jury instructions, as supplemented by its answer to the

jury's question, were incorrect as a matter of law. We review that

issue de novo here. See United States v. Buttrick, 432 F.3d 373,

376 (1st Cir. 2005).

We agree with Luisi that the district court's

instructions were erroneous. We begin by explaining the nature and

policies behind the entrapment defense generally. We address

Bradley, and conclude that it supports Luisi's claim of error. We

also reject the government's alternative argument, which we review

de novo, that there was no reversible error on the facts presented

because Luisi was not entitled to any entrapment instruction
-19-

whatsoever. See United States v. Nishnianidze, 342 F.3d 6, 17 (1st

Cir. 2003) (stating that a defendant is entitled to a jury

instruction so long as his legal theory is valid and there is

evidence in the record to support it).

A. Understanding the Entrapment Defense

In federal criminal cases, the entrapment defense is

neither a doctrine of constitutional dimension, nor a defense

specifically granted by statute. See United States v. Russell, 411

U.S. 423, 432-33 (1973). Rather, the defense has its origins in an

inference about congressional intent. Sherman v. United States,

356 U.S. 369, 372 (1958); see also United States v. Gendron, 18

F.3d 955, 961 (1st Cir. 1994). The Supreme Court has explained

that the "function of law enforcement is the prevention of crime

and the apprehension of criminals. Manifestly, that function does

not include the manufacturing of crime. . . . Congress could not

have intended that its statutes were to be enforced by tempting

innocent persons into violations." Sherman, 356 U.S. at 372. A

successful entrapment defense requires that there be a reasonable

doubt on both prongs of a two-pronged test.

The first prong necessitates a showing of improper

government inducement. See Gamache, 156 F.3d at 9. This aspect of

the defense plainly seeks to deter improper government conduct.

Gendron, 18 F.3d at 961. Indeed, a defendant cannot claim

entrapment when government conduct played no causal role in the
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defendant's inducement. See Sherman, 356 U.S. at 372.

Nevertheless, the entrapment defense only deters government

misbehavior in cases where the defendant would otherwise be lawabiding. Gendron, 18 F.3d at 962. That is because the second

prong requires that the defendant have a lack of predisposition to

commit the charged offense. See id.; see also Sorrells v. United

States, 287 U.S. 435, 448 (1932).

These two prongs, and the policy concerns behind them,

play important roles in delimiting the scope of the entrapment

defense. But they are not the only considerations that matter.

This court and the Supreme Court have taken account of the

practical problems facing law enforcement, particularly in the

prosecution of "victimless" crimes where "significant governmental

involvement in illegal activities" is often required. Bradley, 820

F.2d at 6-8; see also Hampton v. United States, 425 U.S. 484, 494-5

& n.7 (1976) (Powell, J., concurring in the judgment); Russell, 411

U.S. at 432; Gendron, 18 F.3d at 961. We must be mindful that "the

defense of entrapment . . . [does] not . . . give the federal

judiciary a 'chancellor's foot' veto over law enforcement practices

of which it [does] not approve." Russell, 411 U.S. at 435.

These various considerations are sometimes in tension

with one another, and we have treated the resolution of questions

about the scope of the entrapment defense as essentially exercises

in balancing. Indeed, in Bradley we weighed the competing factors
-21-

and realized that we ultimately faced "a question of social

policy." 820 F.2d at 8. Cf. United States v. Hollingsworth, 27

F.3d 1196, 1198 (7th Cir. 1994) (en banc) (characterizing

entrapment as a "common law doctrine").

We synthesize the key facts on which we must balance

competing concerns in this case. It is beyond dispute that an

individual like Previte, hired by the government as an informant,

is a "government agent" for entrapment purposes. See Sherman, 356

U.S. at 373-75. Nor can there be any dispute that Merlino's order

to Luisi, with its implied threat of physical harm or other serious

retribution, could be found by a jury to be improper inducement if

attributed to the government. See Gendron, 18 F.3d at 961;

Bradley, 820 F.2d at 7.

It is also clear that Luisi's case does not fit the

pattern of what has come to be known as "vicarious entrapment." In

"vicarious entrapment" an unknowing middleman merely tells the

defendant about an inducement that the government had used to

target the middleman. See United States v. Valencia, 645 F.2d

1158, 1168-69 (2d Cir. 1980) (recognizing the vicarious entrapment

defense). Here, the target was not the middleman Merlino, but the

defendant Luisi. Further, a jury could find that Merlino had

himself threatened Luisi. This was not a case where Merlino

repeated to Luisi a threat that Previte had made against Merlino.

Indeed, Previte did not threaten Merlino at all.
 Some circuits have used a different meaning of "derivative 10

entrapment." For example, the Seventh Circuit has used it to refer

exclusively to situations in which the middleman is himself

entrapped. See Hollingsworth, 27 F.3d at 1204. By contrast, the

Fourth Circuit has used it to refer to all third-party entrapment

cases. See United States v. Squillacote, 221 F.3d 542, 573-74 &

n.19 (4th Cir. 2000). The definition we use, which comes from a

leading criminal law treatise, is a broad definition that is useful

in distinguishing "derivative entrapment" from "vicarious

entrapment."

-22-

Instead, this case is much closer to what has been called

"derivative entrapment," a situation in which a government agent

"uses the unsuspecting middleman as a means of passing on an

inducement" to the defendant. 2 W. LaFave, Substantive Criminal

Law, § 9.8(a), at 93 (2d ed. 2003). Yet even within this 10

category, further refinement is required.

We have before us a situation in which a jury could find

that Previte specifically targeted Luisi, and then "induced"

Merlino to give an order to Luisi when Merlino might not have

otherwise done so. But Previte's inducement of Merlino does not

appear to have itself been improper. Previte simply helped set up

a drug transaction, explained to Merlino that Merlino would profit

from the transaction's execution, and then encouraged Merlino to

order Luisi's assistance. Cf. Gendron, 18 F.3d at 961-62

(explaining that improper inducement "goes beyond providing an

ordinary 'opportunity to commit a crime,'" and providing examples

(quoting Jacobson v. United States, 503 U.S. 540, 550 (1992))). A

jury would presumably find that Previte merely provided an
-23-

"ordinary" inducement to Merlino; it was Merlino's inducement of

Luisi that a jury could find improper.

This is an unusual entrapment situation. Under the

original, correct instructions given, it is evident that the jury

was considering the possibility that Merlino had put excessive

pressure on Luisi, and that the jurors were unsure whether

Merlino's order could be considered "government persuasion or

inducement because the contact between Merlino and Luisi resulted

from the government agent Previte." The effect of the court's

response was the same as if it had instructed the jury, as a matter

of law, that Merlino's order could not be considered government

inducement or persuasion. We must decide whether the issue was

correctly removed from the jury's consideration.

B. Third-Party Entrapment After Bradley

In this circuit, Bradley is the leading case on thirdparty entrapment. Like the district court, the government now

believes that Bradley controls this case. We examine Bradley's

facts and reasoning in greater detail.

The government agent in Bradley was a prison inmate named

Constanza. In exchange for a reduced sentence, Constanza agreed to

identify drug dealers for the government to assist in undercover

operations and prosecutions. See Bradley, 820 F.2d at 5.

Constanza told the government about an individual named Brenner,

and then he threatened Brenner with physical harm if Brenner did
-24-

not engage in a cocaine deal with an undercover agent. Id. at 5.

Brenner in turn appealed to his friend, defendant Bradley, for

assistance in obtaining the cocaine. Id. at 6. Though Bradley

initially refused, Brenner explained that his physical safety was

in jeopardy. Id. Upon hearing this, Bradley decided to assist

Brenner. Id.

It should now be clear that Bradley presented a narrow

fact pattern: it was a case of vicarious entrapment. That is,

Brenner merely informed Bradley of a threat that had been made

against Brenner, not one that had been made against Bradley.

Although the Second Circuit's Valencia opinion had recognized that

such a vicarious entrapment defense could be viable, we considered

and rejected that position. See id. at 8. At the same time,

however, we rejected the government's argument that a defendant can

never be entrapped by a third party. See id. at 6-8. 

Bradley reached these conclusions by weighing a variety

of policy considerations as applied to the facts of the case. On

the one hand was the fact that the crime would not have happened

but for the government's involvement. See id. at 6. On the other

hand were several factors. First, the government's role in

ensnaring Bradley was "attenuated" because the agent's threat

neither ordered Brenner to seek assistance nor expected it. Id. at

7. Second, Bradley acknowledged the practical difficulties for the

prosecution when it is forced to refute a defendant's claim of
 The case at hand does not present that concern. There is 11

a tape recording of the conversation in which the middleman

pressured Luisi. Moreover, the government agent (Previte) in fact

participated in that conversation, while another government agent

(McGowan) listened in. Consequently, the government faced fewer

practical difficulties in refuting Luisi's entrapment claim.

-25-

entrapment in a scenario where the only two witnesses -- the

defendant and the intermediary -- are likely to be hostile to the

government. See id. Third, Bradley observed that the defendant 11

did commit a crime, exhibiting socially inappropriate behavior.

See id. at 6. Finally, Bradley noted the fact that undercover

investigations are often needed to prosecute drug crimes. See id.

The Bradley court ultimately held that it "would not

extend the [entrapment] defense to a remote defendant without, at

least, a showing that pressure had been put upon him by the

intermediary at the instruction of the government agent." Id. at

8. The government reads "instruct" to mean "command," such that

Previte is not responsible for Merlino's threats against Luisi

unless Previte had commanded Merlino to order Luisi into the

cocaine deal. Luisi reads "instruct" to mean "convince" or

"inform." But the dispute about the use of particular language in

Bradley is largely beside the point. Bradley was a case in which

the government agent neither "commanded," "convinced," nor

"informed" the middleman (Brenner) to target Bradley. Indeed, it

was the lack of any government targeting of Bradley whatsoever on

which Bradley relied. See id. at 7. Here, unlike in Bradley, the
 We also had no occasion to consider such a fact pattern in 12

United States v. Murphy, 852 F.2d 1 (1st Cir. 1988). In that case,

after we rejected the defendants' entrapment arguments, we relied

on Bradley to explain why one defendant's claim to an entrapment

instruction was "foreclosed for an additional reason." Id. at 6.

We noted that to allow the claim "we would have [had] to create the

fiction that [the government agent] forced [the intermediary] into

dealing with" the defendant. Id. (emphasis added). To the extent

that our use of the word "forced" can be taken to imply a

requirement of coercion, such an implication was dicta, as the

government agent in the case never encouraged the middleman to

bring anyone into the scheme, let alone the defendant. See id.

We similarly did not deal with a pertinent fact pattern in

United States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993).

Like Bradley and Murphy, the case involved no government targeting

of the individual defendant. See id.

-26-

government's actions were specifically designed to pressure Luisi,

and the government in fact expected that Luisi would be pressured.

Bradley thus had no occasion to consider the fact pattern at hand.12

In United States v. Rogers, 102 F.3d 641 (1st Cir. 1996),

we considered a fact pattern that was more on point. In Rogers,

the defendant did not move quickly to complete a drug transaction

that an undercover agent had attempted to facilitate. Id. at 645.

In an isolated statement, the government agent "told" the middleman

to "put some heat on [the defendant]." Id. The agent had thus

specifically targeted the defendant to receive an inducement, and

Rogers relied on Bradley to conclude that the government would have

been responsible if the agent had "told" the middleman "to apply

the pressure or inducement later deemed improper." Id. (emphasis

added) (italics removed). However, Rogers factually did not

involve an agent's suggestion that improper pressure be applied to
Contrary to our precedent, several circuits categorically 13

deny the entrapment defense in all third-party situations where the

middleman is unaware that he is helping the government. See

Squillacote, 221 F.3d at 574; United States v. Thickstun, 110 F.3d

1394, 1398 (9th Cir. 1997); United States v. Martinez, 979 F.2d

1424, 1432 (10th Cir. 1992). The Third Circuit's law varies.

Compare United States v. Klosterman, 248 F.2d 191, 195-96 (3d Cir.

1957) (concluding that the third-party entrapment defense was

available in a case where the defendant was specifically targeted

and the middleman was unwitting), with United States v. Beverly,

723 F.2d 11, 12 (3d Cir. 1983) (per curiam) (failing to cite

Klosterman and claiming that the third-party entrapment defense is

categorically unavailable when the middleman is unwitting). With

-27-

the defendant because "putting on some heat" was not improper.

Rogers distinguished the more sinister suggestion of putting "the

arm" on someone, a phrase that implied threatened force. Id. at

645-46.

Thus after Rogers, the law in this circuit permits an

entrapment instruction involving a middleman when there is evidence

that (1) a government agent specifically targeted the defendant in

order to induce him to commit illegal conduct; (2) the agent acted

through the middleman after other government attempts at inducing

the defendant had failed; (3) the government agent requested,

encouraged, or instructed the middleman to employ a specified

inducement, which could be found improper, against the targeted

defendant; (4) the agent's actions led the middleman to do what the

government sought, even if the government did not use improper

means to influence the middleman; and (5) as a result of the

middleman's inducement, the targeted defendant in fact engaged in

the illegal conduct.13
the possible exception of the Ninth Circuit's opinion in United

States v. Emmert, 829 F.2d 805 (9th Cir. 1987), we are unaware of

any cases in which these circuits have rejected the third-party

defense when confronted with the kind of fact pattern we face here.

As for Emmert, we respectfully disagree with the Ninth Circuit's

conclusions.

 Mere knowing tolerance is not presented by the facts here, 14

and we do not reach that issue.

-28-

The government reads Rogers differently. It contends

that the word "told" in Rogers must mean an imperative equivalent

to the government's interpretation of "instruct" in Bradley. It

also reads Rogers to state a requirement that the agent have

improperly induced the middleman.

We disagree. First, we think that the government's

argument is contrary to the plain meaning of "told," and we see

nothing in the context of Rogers that overrides this. Indeed, in

concluding that the agent had not "told" the middleman to

improperly induce the defendant, Rogers pointed out that "nothing

in the record show[ed] that [the agent] urged, suggested or was

even aware of" the middleman's improper inducement. See 102 F.3d

at 645 (emphases added). Urging and suggesting are hardly

equivalent to ordering, nor do they by themselves necessarily

constitute improper inducement. Second, if the Rogers court had in

fact read Bradley the same way as the government does, we do not

see how the Rogers court could have considered it an open question

whether the government can be responsible for an agent's mere

knowing tolerance of improper inducement by a middleman. See id. 14
-29-

Moreover, the policy concerns discussed in Bradley

support our reading of Rogers. Bradley thought it important that

the government's role was "attenuated" in that case because the

agent had not attempted to ensnare the defendant. Bradley, 820

F.2d at 7. But in a case where the government agent specifically

targets the defendant, and then causes the middleman to take a

specifically contemplated action (that is arguably improper

pressure) with the goal of ensnaring the defendant, the

government's role is hardly attenuated. Additionally, Bradley

worried about the fact that the government had turned a potentially

innocent person into a criminal, see id. at 6, though it ultimately

decided that this concern was outweighed by other issues. But in

Bradley the government had never attempted to induce defendant

Bradley directly. Bradley's concern for potential innocents weighs

heavier when the government has tried -- and failed -- to induce

the defendant without the use of a middleman.

In light of our understanding of the law, we think a

properly instructed jury could conclude that the government was

responsible for Merlino's order to Luisi. Indeed, such a jury

could decide that: (1) Previte specifically requested that Merlino

order Luisi to engage in the cocaine deal; (2) Previte's request

came after earlier government efforts to ensnare Luisi, without a

middleman, had not been fruitful; (3) Previte, as an LCN captain,

understood that the order he requested from Merlino would contain
 Indeed, the jury's question was premised on the idea that 15

the government had caused Merlino to give the order. While the

government observes that there was no evidence introduced at trial

as to Merlino's lack of predisposition, none was needed. The

premise of the jury's question was perfectly consistent with a

finding that Merlino was predisposed to be involved in a cocaine

transaction. See Gendron, 18 F.3d at 962 (distinguishing lack of

predisposition from simple causation).

-30-

an implied threat of death, physical harm, or serious retribution

if Luisi failed to comply; (4) Merlino's order to Luisi was exactly

what Previte had requested; and (5) Merlino would not have given

the order if Previte had not encouraged him to do so. As a 15

result, we think that the district court incorrectly answered the

jury's question.

This result is supported by a Fifth Circuit case. In

United States v. Anderton, 629 F.2d 1044 (5th Cir. 1980), the Fifth

Circuit allowed the entrapment defense in a case where law

enforcement officers specifically targeted the defendant, and then

put unspecified "pressure" on the unwitting middleman to bring the

defendant into a pre-designed criminal scheme. Id. at 1045, 1047.

Without discussing whether the middleman had been improperly

induced, the court found it important that the criminal design

originated from the government itself. See id. at 1046-47.

Our conclusion is also supported by the D.C. Circuit's

analysis in Washington. In Washington, an undercover FBI agent

posed as a drug lord and recruited a corrupt police officer to help

him. See 106 F.3d 990-91. After paying the officer for his
 The government reads Washington differently, concluding that 16

Washington requires the actual inducement applied to the

intermediary to be the same kind of inducement applied to the

defendant. This reading seems premised on an assumption that the

FBI agent in Washington had improperly induced the middleman. Yet

the court merely described the agent as "asking" for the

middleman's assistance. Washington, 106 F.3d at 991. Washington

contains no explanation of how this inducement was improper, and

the court's logic suggests that any inquiry into the propriety of

the agent's request would be irrelevant. Moreover, Washington

cited an earlier D.C. Circuit case -- Layeni -- for its rule. See

id. at 993-95. Layeni had in turn implied that the derivative

entrapment defense is available if a government agent merely

"suggests" to an intermediary that he apply particular inducements

to a defendant. See Layeni, 90 F.3d at 518.

-31-

services, the agent "asked [the officer] . . . to recruit as many

new officers as he could." Id. at 991. The corrupt officer

agreed, see id., but then recruited the defendants with an

inducement not contemplated by the undercover agent. See id. at

992, 994-95. The Washington court rejected the derivative

entrapment instruction on the facts of the case. Id. at 995.

Importantly, however, it held that the entrapment defense is

available where the government does contemplate the improper

inducement given to the defendant, and causes the middleman to give

that inducement as a result of a government agent's "'instruction

or direction.'" Id. at 993 (quoting United States v. Layeni, 90

F.3d 514, 520 (D.C. Cir. 1996)); see also id. at 995.16

The government cites to other cases, but none presented

the fact pattern at issue here. See, e.g., Hollingsworth, 27 F.3d

at 1200-02, 1204-05; United States v. Hodges, 936 F.2d 371, 371-72

(8th Cir. 1991); United States v. Pilarinos, 864 F.2d 253, 254-56
 The Sixth and Eleventh Circuits have, in somewhat limited 17

fashion, also rejected unwitting intermediary claims on the facts

presented. See, e.g., United States v. McLernon, 746 F.2d 1098,

1109 (6th Cir. 1984); United States v. Mers, 701 F.2d 1321, 1340

(11th Cir. 1983). With one exception, we are not aware of any

cases in which these circuits have faced facts similar to those in

this case. The one exception would be the Fifth Circuit's 1980

decision in Anderton -- which is binding precedent in the Eleventh

Circuit, see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc) -- and Anderton supports our reasoning in this

case.

-32-

(2d Cir. 1988). The Seventh Circuit has even intimated that the 17

defense might be available when a government agent specifically

targets the defendant, and then encourages the middleman to induce

that defendant. See Hollingsworth, 27 F.3d at 1204 (citing, inter

alia, Bradley).

Thus we conclude that the district court erred in

answering the jury's question in a way that excluded Merlino's

order from the jury's consideration. We do not suggest that a jury

would necessarily have concluded that Luisi was entrapped through

Merlino. We hold only that the defendant was entitled to have a

properly instructed jury consider the issue.

C. Predisposition

As a fallback argument, the government contends that

Luisi failed to present sufficient evidence of his lack of

predisposition, and thus was not entitled to any entrapment

instruction at all. We readily dispose of this argument.

A judge may only instruct the jury on entrapment if the

defendant meets his entry-level burden of production. United
-33-

States v. Gifford, 17 F.3d 462, 467 (1st Cir. 1994). That is, a

defendant is entitled to an entrapment instruction only if there is

"some evidence," on both elements of the entrapment defense,

sufficient to raise a reasonable doubt that the defendant was

merely an unwary innocent. See United States v. Joost, 92 F.3d 7,

12 (1st Cir. 1996). The defendant must show "more than a scintilla

of evidence, more than mere creation of an opportunity for criminal

activity." Id. Nonetheless, even a defendant's self-serving

testimony can suffice, especially when it has some circumstantial

corroboration. See id.

Luisi made the requisite entry-level showing. We have

already explained why a jury could find improper governmental

inducement. Additionally, Luisi introduced "some evidence" of his

lack of predisposition. He testified that sometime before he met

McGowan, he experienced a "spiritual encounter," and that as a

result of this spiritual encounter he resolved to stop dealing

drugs. This story was consistent with evidence that Luisi had

deliberately stalled the drug transaction for several months to

"pal off" McGowan, thereby indefinitely delaying a drug deal to

which Luisi was opposed. Indeed, a jury could find that this twomonth delay stood in stark contrast to the two-day lag between when

Merlino gave Luisi the order, and when McGowan received drugs from

Luisi's colleagues.
-34-

The government suggests that Luisi's "spiritual

encounter" was not credible, and that there was "overwhelming"

evidence of Luisi's predisposition, including the fact that he

previously had been a cocaine dealer, and the fact that Luisi

continued to receive profits from small drug deals undertaken by

one of his associates.

In this procedural posture, however, our job is not "to

weigh the evidence, make credibility determinations, or resolve

conflicts in the proof." Gamache, 156 F.3d at 9. Accordingly, we

find that Luisi introduced sufficient evidence of his lack of

predisposition to entitle him to an entrapment instruction.

III.

Luisi further argues that the charges against him in fact

should have been dismissed because the government engaged in

outrageous conduct that violated his due process rights.

Outrageous government conduct is an issue of law, and it is the

province of the district court -- and not the jury -- to rule on a

defendant's motion to dismiss on that ground. See Bradley, 820

F.2d at 7 n.5. When a district court rules on such a motion, its

ultimate conclusion is subject to de novo review, while its factual

findings are reviewed for clear error. See United States v.

Guzman, 282 F.3d 56, 58 (1st Cir. 2002).

In this case, the district court never ruled on Luisi's

motion, and thus we have no factual findings in the record to
 It is not clear to us whether the district court implicitly 18

denied the motion or not, but in any event we are left with no

findings of fact and no reasoning.

-35-

assist us. Nonetheless, we think that the basic facts needed to 18

rule on this matter are clear enough, and that we are able to reach

the necessary legal conclusions. Luisi has asked us to find that

the government's conduct was outrageous, and the government has

also asked us to resolve the issue.

The outrageousness doctrine permits dismissal of criminal

charges only in those very rare instances when the government's

misconduct is so appalling and egregious as to violate due process

by "shocking . . . the universal sense of justice." Russell, 411

U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton,

361 U.S. 234, 246 (1960))(internal quotation marks omitted); see

also United States v. Nunez, 146 F.3d 36, 38 (1st Cir. 1998).

While the doctrine is often invoked by criminal defendants, it has

never yet been successful in this circuit. See United States v.

Santana, 6 F.3d 1, 4 (1st Cir. 1993) (collecting First Circuit

cases rejecting the argument); United States v. Panitz, 907 F.2d

1267, 1272-73 (1st Cir. 1990) (collecting additional First Circuit

cases rejecting the argument); see also, e.g., United States v.

Capelton, 350 F.3d 231, 243 n.5 (1st Cir. 2003) (rejecting the

argument on the facts presented); Nunez, 146 F.3d at 38-39 (same);
In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), the 19

Third Circuit did find outrageous misconduct. As our court has

recognized, however, the Third Circuit has subsequently questioned

its own holding in Twigg. See United States v. Porter, 764 F.2d 1,

9 n.4 (1st Cir. 1985) (citing Beverly, 723 F.2d at 12). In any

event, the factual background of Twigg makes it readily

distinguishable.

-36-

United States v. Matiz, 14 F.3d 79, 82-83 (1st Cir. 1994) (same).

This case is no exception.19

Luisi's argument for dismissal of the charges relies

heavily on dicta in Bradley that "outrageous conduct . . . might

well be found in a threat of serious physical harm." 820 F.2d at

7. But at the same time, Bradley acknowledged that an

outrageousness claim might be defeated if a defendant has been "too

active himself." Id. Moreover, defendant Bradley himself had not

been threatened, and we declined to consider the matter further.

See id.

Whatever fact situation Bradley had in mind, it was not

this one. Here, even though the government's actions have risked

giving the defendant a viable entrapment claim, it is another thing

entirely to say that the conduct was "outrageous." After

considering the totality of the circumstances in this case, we

think the government's actions fell well short of shocking the

"universal sense of justice."
 In light of our disposition, we have no need to address 20

Luisi's claim that he was sentenced improperly in light of United

States v. Booker, 543 U.S. 220 (2005).

-37-

IV.

The judgments of conviction are vacated and the case is

remanded for further proceedings consistent with this opinion.20