_____________ No. 95-1996

_____________ United States of America, * * Plaintiff - Appellee, * * v. * * Stephanie Cannon, also known as * Stephanie Lynch, * * Defendant - Appellant. * Appeals from the United States District Court for the

_____________ District of North Dakota.
No. 95-1997

_____________ United States of America, * * Plaintiff - Appellee, * * v. * * Keith Anthony Cannon, * * Defendant - Appellant. *

_____________ No. 95-2233

_____________ United States of America, * * Plaintiff - Appellant, * * v. * * Stephanie Cannon, also known as * Stephanie Lynch, * * Defendant - Appellee. *

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_________________________ * * United States of America, * * Plaintiff - Appellant, * * v. * * Keith Anthony Cannon, * * Defendant - Appellee. *

_____________ Submitted: November 14, 1995 Filed: July 10, 1996

_____________ Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

_____________ HANSEN, Circuit Judge. Stephanie Cannon and Keith Anthony Cannon were convicted of various dr ug and firearm offenses. They challenge the validity of thei r convictions, raising a number of issues including entrapment, outrageous govern ment conduct in violation of their due process rights, an d prosecutorial misconduct. The United States cross appeals, contending tha t the district court erroneously sentenced the defendants. We reverse and remand.

I. Viewing t he evidence in the light most favorable to the verdicts, a reasonable jury could have found the following.

Kei th Cannon and Stephanie Cannon (collectively, "Defendants") , residents of Minneapolis, Minnesota, sold cocaine

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base on four occasion s to Special Agent Charles Sherbrooke, an undercover officer w ith the West Central Minnesota Drug Task Force. The firs t transaction was recor ded on audio tape, and the latter three transactions were videotaped.

Defendants met Agent Sherbrooke for the first time in Alexandria , Minnesota, when the parties were introduced by a confidential informant. Defendants sold cocaine base to Agent Sherbrooke and told him they wer e interested in acquiring firearms. The parties made arrangements to meet again in Alexandria within a week.
As planned, Defendants sold more cocaine base to Sherbrooke les s than
a week later. When Sherbrooke asked Defendants whether they were stil l interested in obtaining firearms, Defendants again indicated thei r interest, this time s pecifically stating that they wanted two .38 caliber snub nosed revolvers, two derringers, and one .25 caliber automatic pistol

. Sherbrooke said he had a supplier who could provide those weapons an d offered to get anything else Defendants might wa nt. He explained that the deal would have to ta ke place in North Dakota, however, because there was
an arrest warrant out for his supplier in Minnesota. When Sherbrook e kidded Defendants abo ut their reasons for wanting the weapons, Defendants said they were "despe rate" because they had had drugs stolen from them in the past.

Two days later, the parties met for a third time in Alexandria, and Sherbrooke again purchased cocaine base from Def endants. The conversation immediately turned to the plans for the next transaction. Stephanie Canno n again told Sherbrooke she was interested in obtaining five handguns, and Sherbrooke replied, as he had at the prior meeting, that his supplier coul d get her the handguns and anything else she might want. At three points in the conversation, Sherbrooke stated that Defendants would have a n assortment of about 15 weapons from which to choose. When

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Sherbrook e asked how much a couple of "oz's" of cocaine base would cos t him, Keith Cannon answered and then noted that the parties could trade gun s for drugs. Before parting, the parties agreed to meet in Fargo, Nort h Dakota, the following week.

As sched uled, the fourth and final transaction occurred at a mote l in Fargo. Agent Sherbrooke introduced Defendants to Special Agent Joh n Keating of the Bureau of Alcohol, Tobacco, and Firearms, who posed a s Sherbrooke's firearm supplier. When everyone was introduced, Sherbrooke
ser ved Defendants alcoholic drinks. After some initial small talk, th e parties discussed the terms of sale for the cocaine base Defendants ha d brought. The conversation then turned to the subject of firearms.

Ag ent Keating had with him 10 firearms in a dufflebag, includin g three 9 mm semi-automatic pistols, two .25 calib er semi-automatic pistols, two .38 caliber revol vers, one .357 magnum caliber revolver, and two MACtype machi ne guns -- one a .45 caliber and the other a .380 caliber

. Keat ing removed each weapon from the bag, briefly identifying it an d showing it to Defendants. When Keating described the larger of the machin e guns as capable of ho lding 30 rounds, Sherbrooke called it a "neat item." Keating explained that the smaller machine gun could hold 15 rounds.

Defendant s proceeded to inspect the various firearms. Keith Cannon expressed his concern that the .25 caliber semi- automatic pistol would not inflict e nough damage. Agent Keating disagreed but noted it was not a s powerful as the machine guns. When Keating explained again that the large r machine gun could hold 30 rounds, quite a bit of protection for Defendants ' drug business, Sherbrooke chimed in that that was a "lot of rock and roll. " After some discussion on the various makes of handguns, Defendants selecte d three of them.

### 5 The parties' attention then turned t o a discussion on how Sherbrooke had be en shorted in an earlier deal with the Defendants. After the y resolved that issue, Agent Sherbrooke inquired whether Defendants wanted any of the remaining guns. Keith said no. Keit h stated, however, that he wanted to get together with Keating later to pur chase an "Uzi or some type of automat ic weapon." Stephanie pointed to the machine gun and said , "That's it." Keith explained the dangers the Defendants face on the stree t and said he needed a powerful gun for protection. He concluded he wanted
a machine gun with 50 rounds, because "I get crazy sometimes." Keith tol d the officers he wanted to purchase such a gun at their next meeting.
Sherbrooke asked Keating whether the machine guns would be available for sale in the future. Keating replied that he expected to sell the guns he had brought to this meeting to another buyer if Defendants did no t purchase them. Keith stated he would like to purchase a machine gun at th e next meeting, again stressing the need for protecting the business. H e stated, "I believe in sprayin' everything that's moving." Both Defendants said that, in the meantime, the handguns would h old them over. Sherbrooke picked up one of the machine guns and began examining its features

. Keating noted the gun's rapid rate of fire.
Stephanie then asked whether the Defendants could trade drugs for a machine gun. The agents answered affirmatively, and the parties agreed to barter three ounces o f cocaine base for three handguns, the MAC-type .380 caliber ma chine gun, and $4,600 in United States currency. After th e exchange, Defendants carried their newly acquired weapons out of the motel , where law enforcement officers were waiting.

Defendants were arrested and charged in a nine-count indictment , whi chincluded counts of distribution of cocaine base and conspiracy t o distribute and to possess with intent to distribute, in violation of 2 1 U.S.C. §§ 841(a) and 846; of

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knowi nglyusing and carrying firearms during and in relation to a dru g trafficking crime, in violation of 18 U.S.C. § 924(c); and of knowingly an d unlawfullypossessing a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). Keith Cannon was also charged wi th being a felon knowingly in possess ion of firearms, in violation of 18 U.S.C. §§ 922(g)(1) an d 924(a)(2). One count was dismissed by the Government before trial.

The case proceeded to trial in the United States District Court for the District of North Dakota. Defendants filed a pretrial motion t o dismiss the indictment, contending the officers had violated Defendants' due process rights by artificially creating venu e in the District of North Dakota. Defendants a lternatively moved for transfer of venue pursuant to Rule 21(a ) and (b) of the Federal Rules of Criminal Procedure. Th e district court denied these motions. Defendants also moved to dismiss the counts relating to re ceiving and possessing the machine gun on grounds of due process and entrapment as a matter of law. In support of this motion, Defendants referred the court to the video and a udio tapes of the drug and firearms transactions , but did not provide the court copies of the tapes. Finding the evidence before him insufficient to support Defendants' claims , the district judge denied Defendants' motion.

At trial, Defendants presented an entrapment defense, but the jur y rejected it and returned guilty verdicts on all counts. Defendants raised the defense again in posttrial motions for judgment of acquittal and for
a n ew trial. The district court denied the motions and held tha t Defendants were not entrapped as a matter of law . At sentencing, however, the court found that the government had engaged in sentencing entrapment and se ntencing manipulation with regard to the machine gun charges

. Accordingly, the cour t did not impose the mandatory, consecutive, 30-year sentence f or knowingly using and carrying a machine gun during and i n relation to a drug trafficking offense, imposing instead the

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mandat ory, consecutive, 5-year sentence for using or carrying a firear m during and in relation to a drug trafficking offense. See 18 U.S.C

. § 924(c)(1). Defendant Keith Cannon was sentenc ed to 216 months in prison (156 + 60) and a five -year term of supervised release, and fined $17,500. Stephan ie Cannon was sentenced to 181 months in prison (121 + 60) and a five-year term of supervised release, and fined $17,500. Defendants appea l their convictions and sentences on numerous grounds, and the governmen t cross appeals the sentences.

II.

A. VENUE

The first three drug deals occurred in Minnesota, where Defendant s reside, and the fourth transaction took place in North Dakota. Defendants , both o f whom are African-Americans, moved to dismiss the indictment , claimi ng the government had violated their due process rights b y manip ulating the transactions to create venue in North Dakota. In th e alternative, they moved for transfer of venue pursuant to Rule 21(a) and (b) of the Federal Rules of Criminal Procedure. The district court denied Defendants' motions for lack of evidentiary support. Defendants argue that the district court erred in denying thei r motion to dismiss on due process grounds. Relying on Batson v. Kentucky , 476 U.S. 79 (1986), Defendants claim the facts of this case give rise to
an inference that the government officers lured them to North Dakota for the fourth transactio n as a ruse to create venue in a rural district with
a significantly lower minority population than the Minnesota population. Because the government offered no explanation for its actions, see id

. (requiring government to come forward with a neutral explanation to rebut prima facie case of discrimination), Defendants contend the government's conduct was outrageous, and the indictment should have

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been dismissed. See United States v. Russell , 411 U.S. 423, 431-32 (1973)

.

We agree with the district court that Defendants' argument lack s evi dentiarysupport. Defendants cite only the 1990 census, which foun d that African-Americans constitute 2.17 percent o f the Minnesota population and 0.6 percent of the North Dakota population. Defendants did not show what the minority population figures are for the geographic area o f Minnesota from which a jury would have been picked if trial had been held in Minnesota, nor the minority population figures for the division of the district of North Dakota where trial was held. The variance in minority population in the two states is insufficient alone to create an inference that De fendants were purposefully enticed to North Dakota in order t o control intentionally the racial composition of the jury. Cf. Unite d States v. Garcia , 991 F.2d 489, 492 (8th Cir. 1993) (stating that a numerical disparity alone does not establish the systematic exclusion of a group in jury selection process). Because of the insufficient evidence,
we do not believe the first element of a Batson -type analysis has been mad e out in this case, if indeed a Batson -type analysis can be applicable to a motion for a transfer of venue. Defendants therefore have failed to meet th e high threshold for establishing outrageous government conduct i n violation of their due process rights. Cf. Bell v. United States , 48 F.3d 104 2, 1044 (8th Cir. 1995) (holding that failure to offer proof o f impermissible motives for choosing to prosecute in federal forum precludes finding of due process violation).
Defendants also challenge the distri ct court's decisions on the Rule 21 motio ns. As a preliminary matter, we note that venue was proper i n North Dakota under 18 U.S.C. § 3237(a), which creates venue in any distric t where the alleged criminal conduct occurs. If, however, the district cour t believed Defendants would not receive a fair and impartial trial due t o existing prejudice in North Dakota, the district court was required t o transfer the

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trial. Fed. R. Crim. P. 21(a). In addition, the court also could exercis e its discretion and tr ansfer the trial to another district in the interest of justice and for the convenience of the parties. Fed. R. Crim. P. 21(b)

. Defend ants contend the district court abused its discretion in denyin g their Rule 21 motions, because, as African-American defendants from a larg e city, they could not obtain a fair and impartial trial as described in Rul e 21(a), and a transfer of venue was in the intere st of justice, Rule 21(b).

We agree with the district court that these motions, like Defen dants' motions to dismiss on due process grounds, are conclusory and lacking in evidentiary support. Defendants support their Rule 21 challenges with no
more evidence than they cited for their due process argument. We therefor e find no abuse of discretion in the denial of the motions to transfer venue

. Rizzo v. United States , 304 F.2d 810, 817 (8th Cir.) (standard of review) , cert. denied , Nafie v. United States , 371 U.S. 890 (1962). B. PROSECUTORIAL MISCONDUCT
During hi s rebuttal closing argument, the prosecutor twice referred to Defendants as "bad people." When defense counsel objected to this as
an improper reference to Defendants' character, the district cour t
over ruled the objection, stating that closing arguments can b e argumentative. The prosecutor then continued, "There are bad people in the world, ladies and gentlemen. We are lucky where we live not to come in contact with as many as there may be in other parts of the country. Bu t there are still some around here." (Tr. of Rebu ttal Closing Arg. by Gov't at 8, Jan. 20, 1995.) The remainder of the clos ing argument did not refer to Defendants' character. Defendants contend the reference to "bad people " constitutes prosecutorial misconduct that deprived them of a fair trial.

### 10 We afford the district court broad d iscretion in controlling closing arguments, overturning the lower court only when it clearly abuses it s discretion. United S tates v. Nelson , 988 F.2d 798, 807 (8th Cir.), cert. denied , 1 14 S. Ct. 302 (1993). We examine prosecutorial remarks t o determine, first, whether the remarks were in fact improper, and if so , whether, in the context of the entire trial, the remarks "`prejudicially aff ected [Defendants'] substantial rights, so as to deprive [them] of a fair trial." United States v. Malone , 49 F.3d 393, 398 (8th Cir.) (quotin g United Sta tes v. Hernandez , 779 F.2d 456, 458 (8th Cir. 1985)), cert
. denied , 116 S. Ct. 20 8 (1995). If we reach the second step, we consider: "(1) the cumulative effect of such misconduct; (2) the strength of th e proper lyadmitted evidence of [Defendants'] guilt; and (3) the curativ e actions t aken by the trial court." United States v. Eldridge , 984 F.2 d 943, 946-47 (8th Cir. 1993).

We have n o doubt that the prosecutor's statements in this case were improp er. Prosecutors must refrain from using methods calculated t o pro duce a wrongful conviction. United States v. Young , 470 U.S. 1, 7 (1985). Although a prosecutor "may strike hard blows, [the prosecutor] is not at liberty to strike foul ones." Id. Refer ring to defendants as "bad people" simply does not further the aims of justice or aid in the search for truth, and is likely to inflame bias in the jury and to result in a verdict based on something other than the evidence. Therefore, the remark s
were high ly improper. Cf. United States v. Singer , 660 F.2d 1295, 130 4 (8th Cir. 1981) (finding prosecutor's reference to "crooks" improper) , cert. denied , 454 U.S. 1156 (1982); Hall v. United States , 419 F.2d 582, 58 7-88 (5th Cir. 1969) (finding prosecutor's reference to "hoodlums " impr oper). We further perceive a thinly veiled appeal to parochia l allegiances in the pr osecutor's remarks. We should not have to remind an Assistant United States Attorney that the Defendants are citizens of the Unit ed States as well, and that it was a court of the United States i n which the proceedings

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were being held. The district court erred by no t sustaining the objection and by failing to take curative action.
Having d etermined the remarks to be improper, we must decide thei r effect on the Defendants' fair trial rights using the three factor tes t fro m Eldridge . While the conduct occurred only during the prosecutor' s final rebuttal argument, "`a single misstep' on the part of the prosecutor may be so d estructive of the right to a fair trial that reversal i s mandated." United St ates v. Solivan , 937 F.2d 1146, 1150 (6th Cir. 1991) (quoted with approval in United States v. Johnson , 968 F.2d 768, 771 (8th Cir. 1992)). Because the remark came during rebuttal arguments, defense counsel was unable to respond except by objection.

We have indicated that an improper argument is less likely to hav e affected the verdict in a case when the evidence is overwhelming than in
a case where the evidence is weak. United States v. Splain , 545 F.2d 1131 , 1135 (8th Cir. 1976). While the government's evidence is probably strong enough o n the drug charges to be called overwhelming, the evidenc e concerning the machin e gun and the Defendants' predisposition to purchase it is not so strong as to be called overwhelming, and indeed th e expe rienced district judge was convinced enough that he found at th e sentencing hearing th at the Defendants had no predisposition to acquire a machine gun. Tr. Sen t. at 45 ("I know from the facts that I heard on two or three different oc casions that the Defendants had no predisposition to acquire a machine gun."); id. at 47 ("My God, fo lks, we cannot permit well meaning, capable law enforcement people to entice people to violate the la w in this way."). Finally, we note that the district judge's failure t o sustain the defense counsel's objection to the remarks (and indicating tha t closin g arguments are argumentative) meant that there was no curativ e instruction given to neutralize the prejudicial effect of the prosecutor's remarks.

### 12 We believe that by twice calling the African-American Defendant s "bad people" and by callin g attention to the fact that the Defendants were not locals, the prosecutor gave the jury an improper and convenient hook o n which to h ang their verdict, and we are not prepared to say that th e evidenc e was so overwhelming that the court's error in permitting th e impro per comments to stand was harmless beyond a reasonable doubt. W e conclude that the Defendants are entitled to a new trial on all counts

. Accordingly, we reverse and remand.

Because we reverse and remand for a new trial, we deem it unnec essary to determine if the district court was correct in its decision that both sent encing entrapment and sentencing manipulation had occurred in thi s case. We do address those issues that may arise again at a second trial.

C. EVIDENTIARY CHALLENGE
Defendants challenge the admission o f each of the four quantities of cocaine base purchased at each transaction, contending the governmen t failed to prove a proper chain of custody. Spec ifically, Defendants argue the government failed to show what happened to the cocaine base between th e time it was mailed to a DEA laboratory for testi ng and the time when a DEA forensic chemist at the laboratory tested it.

We review a district court's decision to admit evidence over a n objection for an abuse of discretion. United St ates v. Carpenter , 70 F.3d 520, 520 (8th Cir. 1995). A district court may admit physical evidence if the court believes a reasonable probability exists that the evidence has not been changed or altered. United States v. Miller , 994 F.2d 441, 443 (8th Cir. 1993). In making this determination, absent a showing of ba d fai th, ill will, or proof of tampering, the court operates under a presumption of integrity for the physical evidence. Id. Here, the

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onlychange in the cocaine occurred when the DEA chemist pulverized th e rocks of cocaine for testing. Because Defendant s failed to aver any facts rebutting the presump tion of integrity, we find no abuse of discretion in the admission of the cocaine base as evidence in this case.

D. RULE OF LENITY

Def endants also challenge the district court's decisions not t o authorize them to obt ain expert testimony on the chemical compositions of cocain e and cocaine base. Initially, Stephanie filed a pretria l application asking th e district court to authorize the costs of obtaining transcripts from other cases in which experts ha d testified on this issue. She explained that she intended to show that the heightened penalty fo r
coca ine base should be ignored under the rule of lenity, because th e distinction between cocaine and cocaine base is scientifically meaningless

. The district court denied the application, holding the transcripts were no t
necessa ryto Stephanie's defense because our court has overwhelmingl y rejected challenges t o the statutory differences in sentences imposed for convictions involvingcocaine base and cocaine. Stephanie and Keith then filed another application, not only seeking reconsideration of the decisio n regarding the transcripts, but also requesting authorization to employ a chemistryexpert to testify at their trial that cocaine and cocaine base are the same thing. Citing the reasoning previo usly stated in denying the first application, the district court denied Defendants' request. A t sentencing, the court again rejected Defendants' position regarding th e rule of lenity.
Defendants were each represented by appointed counsel pursuant to the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. Under subsection 3006A(a) of the CJA, adequate representation includes, among other things, expert services "necessary for the defense." If a dist rict court finds that such services are necessary and

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beyond a defendant's financial means, the court "shall authorize counsel to obtain the services." Id. at § 3006A(e)(1). We afford the district court wide discretion in deciding whether the ap pointment of experts would aid defendants in preparing and presenting an adequate defense. Unite d States v. Moss , 544 F .2d 954, 961 (8th Cir. 1976), cert. denied , 429 U.S. 1077 (1977).

We find n o abuse in the district court's conclusion that the expert testimony sought here was unnecessary. As the district court observed, ou r court has repeatedly rejected constitutional challenges to the difference in penalties for convictions involving cocaine and cocaine base. See , e.g. , United States v . Johnson , 28 F.3d 1487, 1494 (8th Cir. 1994), cert. denied , 115 S. Ct. 768 (1995), and Scott v. Unit ed States , 115 S. Ct. 1263 (1995); United States v. Maxwell , 25 F.3d 1389, 1396-97 (8th Cir.), cert. denied , 115 S. Ct. 610 (1994); United States v. Buckner , 894 F.2d 975, 978

- 81 (8th Cir. 1990). Furthermore, we recently rejected Defendants' argumen t that 21 U.S.C. § 841(b) is unconstitutionally vague and that we shoul d
cons equentlyignore its heightened penalty provisions for cocaine bas e under t he rule of lenity. United States v. Jackson , 64 F.3d 1213, 121 9 (8th Cir. 1995), cert . denied , 116 S. Ct. 966 (1996). The district court therefore did not abuse its discretion by refusing to authorize Defendants ' requests, and the court's decision not to invoke the rule of lenity a t sentencing was correct.

E. ENTRAPMENT

Def endants challenge their convictions, arguing that the distric t court erred in denying their motions for judgment of acquittal and their motions for a new trial on the grounds of entrapment. We disagree.

The defen se of entrapment stems from a concern that law enforcement officials and agents should not manufacture crime.

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United States v. Lard , 734 F.2d 1290, 1293 (8th Cir. 1984). To be entitle d to jury instructions on an entrapment theory, defendants must show som e evidence that the government agents implanted th e criminal design in their minds and induced them to commit the offense. U nited States v. Eldeeb , 20 F.3d 841, 843 (8th Cir.), cert. denied , 115 S. Ct. 269 (1994). Once a defen dant has made this showing, the government then has the burden o f proving that the defendant was predisposed to co mmit the crime, apart from the government's inducement. Jacobson v. United States , 503 U.S. 540, 553

- 54 (1992). An inquiry concerning predisposition"focuses upon whether the defe ndant was an unwary innocent or, instead, an unwary criminal wh o readil yavailed himself of the opportunity to perpetrate the crime. " Mathews v. United States , 485 U.S. 58, 63 (1988) (internal quotation s
om itted). In other words, "determining a defendant's predispositio n requires examination of the defendant's personal background to see `where he sits on the continuum between the naive first offender and th e streetwise habitue.'" United States v. Kummer , 15 F.3d 1455, 1459 (8t h Cir. 1994) (quoting Lard , 734 F.2d at 1293).

Entrapmen t is generally a jury question. United States v. Pfeffer , 901 F.2d 654, 656 (8th Cir. 1990). The trial court may enter a judgment of acquittal, however , when the evidence clearly establishes the elements of entrapment as a matter of law. Id . The elements of entrapment as a matter of law are: "(1) that a government agent originated the crimina l design; (2) that the agent implanted in the mindof an innocent person the disposition to commit the offense; and (3) that the defendant committed th e criminal act at the urging of the government agent." Id. We view the fact s in the lig ht most favorable to the government, reversing only when n o reasonable jury could have reached the guilty verdict. Id

.
Consideri ng the evidence in this case, we can easily dispose o f Defendants' contention that they were entitled to a judgment as

### "Among the factors lower courts have looked to in 1 

### determining whether a defendant was predisposed are: (1) whether the defendant readily responded to the inducement offered; (2) the circumstances surrounding the illegal conduct; (3) whether the defendant was engaged in an existing course of conduct similar to the crime for which he is charged; (4) the defendant's reputation; and (5) the conduct of the defendant during the negotiations with the undercover agent." Id. (citing United States v. Dion , 762 F.2d 674, 687-88 (8th Cir. 1985), rev'd on other grounds , 476 U.S. 734, (1986)).
16 a matter of law on the drug charges. The evidence overwhelmingly proves their predisposition to traffick drugs, and their own recorded statements about having been robbed of a sizeable quantity of drugs in the past revea l their already established criminal drug-dealing proclivity prior to th e government's sting operation. We also have no difficulty disposing of Defendants' argument as t o the handgun verdicts on the § 924(c) charges. Within the first minute of the first transaction, the Defendants indicated their interest in acquirin g specific firearms. T hey reiterated their interest at subsequent meetings and even ordered particular types of handguns. They agreed to a meeting in North Dakota, and drove there, for the specific purpose of purchasing handguns in conjuncti on with a drug transaction. Under these facts, they were not entitled to a judgment as a matter of law.

Defendants argue that even if they were predisposed to purchas e firearms, there is no evidence that they were predisposed to purchase a machine gun prior to the government's bringing of the machine guns to the Fargo meeting. We believe the circumstantial evidence in this case i s sufficient for a reas onable jury to conclude Defendants were predisposed, independent of any government inducement, to possess a machine gun. See United States v. Kummer , 15 F.3d 1455, 1457 n.7 (8th Cir. 1994) (listing facto rs, some of which involve circumstantial evidence, courts hav e considered in determining whether a defendant is predisposed to commit a crime). Defendants were clearly engaged in closely related criminal

1

### Defendants were also convicted of count seven, unlawfully 2 

### possessing a machine gun, in violation of 18 U.S.C. § 922(o). This provision does not contain a mandatory prison term, however, so our discussion focuses on the 18 U.S.C. § 924(c) charge.
17 activi ty, i.e., they came to Fargo specifically to purchase firearm s illegally and to engage in established and ongoi ng drug trafficking, where firearms are tools of the trade. The record in this case contains evidenc e that a machine gun is a drug dealer's most prized possession. A reasonabl e jury could therefore conclude Defendants are much closer on the continuum to a streetwise habit ue than a naive first offender. Additionally, Keith Cannon' s comments during the negotiations of the firearm transaction , stress ing the need to protect Defendants' drug operation and indicatin g theywanted even more fire power (a weapon capable of holding 50 rounds) than t he available firearms offered, reveal the Defendants' interest i n possessing a machine gun and the intent to obtain one. Considering this circum stantial evidence, a reasonable jury could indeed take the smal l inferential step of concluding that Defendants were predisposed t o obtaining a machine gun independent of any government inducement.

F. OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

De fendants also frame their challenge to the convictions involvin g the machine gun as a violation of due process, contending that th e off icers' conduct was so outrageous that the district court should hav e dismissed counts six and seven of the indictment. According to Defendants , selling t hem a machine gun when they had not specifically asked for on e violated their due process rights, because the o fficers' conduct was aimed solely at increasing Defendants' sent ence for count six by 25 years. See 2 18 U.S.C. § 924(c) (30-year mandatory consecutive sentence for using o r carrying a machine gu n in relation to a crime of drug trafficking; 5-year sentence for handguns); see Russell , 411 U.S. at 431-32 (acknowledging the possibility of government conduct so outrageous

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and fu ndamentally unfair that due process principles would bar th e conviction of a defendant); Hampton v. United States , 425 U.S. 484, 491-50 0 (1976) (majority of S upreme Court, in concurring and dissenting opinions, agreei ng that outrageous government conduct defense may exist for a defendant predisposed to commit a crime). The government, on the other hand, argues that no due proces s violation occurred inthis case. The government further urges this court not to unduly constra in law enforcement officials by limiting them to buy
or sell only what defendants specifically request or by placing a burden
on the go vernment to set forth motives for each and every step of la w enforcement activities. The district court denied Defendants' motion to dismiss counts six and seven of the indictment o n due process grounds. We review this question of law de novo. United Sta tes v. Dougherty , 810 F.2d 763, 770 (8th Cir. 1987).

The defense of outrageous government conduct is similar to, thoug h distinct from, the de fense of entrapment. Both defenses frequently arise in prosecutions resulting from sting and reverse -sting operations. Unlike the entrapment defense, however, which focuses on the Defendant' s predisp osition to commit the crime, the outrageous government conduc t defense focuses on the government's conduct. Kummer , 15 F.3d at 1459 n.9.

The vexin g question before us is where the line lies between covert invest igative conduct by law enforcement officers that is withi n constitutional bounds, and which is inherent in every sting and reversesting operation, and conduct that is "`so outrageous and shocking that it exceed[s] the bounds of fundamental fairness.'" United States v. Huff , 95 9 F.2d 731, 734 (8th Cir.) (quoting United States v. Johnson, 767 F.2d 1259, 127 5 (8th Cir. 1985)) , cert. denied , 506 U.S. 855 (1992), and Love v
. United States , 506 U.S. 855 (1992). In finding that line, we must keep in mind that "`[t]he level of outrageousness needed to prove a due

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process violation is quite high, and the government's conduct must shock the conscience of the court.'" United States v. Jensen , 69 F.3d 906, 911 (8thCir. 1995) (quoting United States v. Pardue , 983 F.2d 843, 847 (8th Cir. 1993)), cert. denied , 1996 WL 163952, 64 USLW 3722, 64 USLW 3726 (U.S

. Apr. 29, 1996) (No. 9 5-1582). Further, we have noted that we "`should go very slowly before staking out rules that will deter government agents fro m the proper performanc e of their investigative duties.'" United States v. Barth , 990 F.2d 422, 425 (8th Cir. 1993) (quoting United States v. Connell , 960 F.2d 191, 196 (1st Cir. 1992)). We have also stated "tha t investiga tive officers and agents may go a long way in concert with th e individual in questio n without being deemed to have acted so outrageously
as to violate due process . . . ." Kummer , 15 F.3d at 1460 (quoting Unite d States v. Quinn , 543 F.2d 640, 648 (8th Cir. 1976)). After thorough revie w of the record and the briefs, and keeping in min d the above principles, we conclude the officers' conduct in this case was not so shocking that i t crossed over the constitutional line, violating Defendants' due proces s rights. We are fortunate in this case not to have to work from a col d record. We have availed ourselves of the opportunity to view the vide o tape o f the actual drugs-for-guns transaction and have studied i t carefully.
We look first at the agents' act of offering a selection of firearms other than the type Defendants had requested. This conduct is neithe r outrageous nor shocking. Defendants had told the officers on numerou s
occ asions that they wanted to obtain firearms. Although Defendants ha d reque sted particular weapons, Officer Sherbrooke thrice told Defendant s that his supplier would bring a selection of about 15 weapons from which Defendants could make their final choices. Defendants did not object to this procedure and at least tacitly agreed to it. Under thes e circumstances, we find nothing shocking, outrage ous, or even surprising in the office rs' providing a selection of weapons to willing buyers. W e believe the officers were permitted to test the

### 20

limits of the Defendants' willingness to acquire firearms illegally i n general and were not limited just to filling the customers' order.
Having literally looked at the offic ers' salesmanship techniques, we again conclude that no due process violation occurred. The Defendant s displayed their inter est in the two machine guns by their comments: They first indicated an intent to buy a machine gun in the future; the y explained their need for one to help protect their drug enterprise; an d Keith Cannon indicated he wanted to purchase a m achine gun with a 50-round magazine at the next deal. In light of these comments, we do not believe the officers' conduct -- initially describing the machine guns and the n noting the positive attributes of the guns -- is shocking or outrageous. The officers did not coerce or use hard-sell tactics to persuade Defendant s to pu rchase a machine gun. The district court described the officers ' effort as "soft-sell." (R. at 329.) Nor did the officers misrepresent th e nature or the price o f the machine guns or any of the other weapons. The officers simply kept the conversation going and responded to Keith Cannon' s expres sed concern about having enough fire power to adequately protec t Defendants' drug business. The officers provided Defendants an opportunit y to purchase a more po werful weapon. We do note the officers responded to Keith's indication that he would like to purchas e a machine gun with a 50- round capacity at the next meeting by indicating that a machine gun may no t be a vailable then; however, in the context of the conversation, thi s conduct was not so outrageous that it violated Defendants' due proces s rights. It seems to us to be a technique commonly used by salespersons, viz., buy this product now before someone else does. Like the distric t court, we believe tha t if the defendants had decided not to buy a machine gun, the officers "would have politely acquiesce d." (R. at 328.) Because "the mere sale by the government of contraband to one predisposed to buy it" does not amount to a due process

### We recently reiterated our discomfort with reverse-sting 3 

### operations, which have great potential for abuse. United States v. Stavig , 80 F.3d 1241, 1247 (8th Cir. 1996). This troubling case is no exception. Drawing the line between constitutional, zealous law enforcement in the "war against crime" and outrageous, unconstitutional conduct that offends the fundamental fairness of our system is no easy task. Because of the great potential for abuse in these situations, we urge district courts to continue giving them the most careful scrutiny and probing examination. Id.
21 violation, Dougherty , 810 F.2d at 710, the condu ct leading to the sale was not, in itself, outrageous.
If bringi ng the selection of firearms to the meeting and conducting themselves as the off icers did do not violate the Defendants' due process rights , the question then becomes whether the difference in punishmen t between the consecutive penalty for using or carrying the handguns th e Defendants did reques t (imprisonment for 5 years) and the heavier penalty for using or carrying the machine gun (imprisonment for 30 years) makes th e officers' conduct outrageous. See 18 U.S.C. § 924(c)(1). Defendants argu e that it does. They would have us decide this case using a sliding scale that measures the constitutionality of government conduct by the penalty Congress has deemed a ppropriate for a particular crime. We decline to do
so. Ou r judicial role in analyzing the alleged outrageous governmen t conduc t is to measure the officers' actions against the constitutiona l limits of the Due Process Clause, not as the case plays out under th e penalties prescribed by Congress. Because the agents ' conduct itself 3

was no t unconstitutional, we conclude that the district court properl y refused to dismiss counts six and seven of the indictment on due process grounds.

G. JURY INSTRUCTIONS
1. Jury Instruction No. 4: Entrapment

### Jury Instruction No. 4 reads as follows: 4 

### If either defendant did not have any previous intent or disposition to commit the crime charged, and was induced or persuaded by law enforcement officers or their agents to commit that crime, then that defendant was entrapped. On the other hand, if a defendant did have a previous intention or disposition to commit the crime charged, then that defendant was not entrapped, even though law enforcement officers or other agents provided a favorable opportunity to commit the crime, or made committing the crime easier, or even participated in acts essential to the crime. If a defendant was entrapped, he or she must be found not guilty. The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.
22 Defendant s next argue that the district court erroneously submitted the i ssue of inducement to the jury in the jury instructions. Althoug h 4

a defendant who has produced evidence of inducement is entitled to jur y instruc tions accurately stating as a whole the law of entrapment, th e defendant has no right to particularly worded in structions. United States v. Parker , 32 F.3d 395, 400 (8th Cir. 1994). Th e jury instruction in this case, which was based on the Eighth Circuit Mode l Criminal Instruction No. 9.01, correctly states the law of our circuit. U nited States v. Aikens , 64 F.3d 372, 375 (8th Cir. 1995), vacated and reman ded for reconsideration in light of Bailey v. United States, 116 S. Ct 501 (1995) , 116 S. Ct. 136 4 (1995). The instructions, when viewed as a whole, properly focus on the questi on of Defendants' predisposition and place the burden on th e government to prove that element beyond a reasonable doubt.
2. Jury Instruction No. 21: Use of Firearm

Defendants also argue the district court erred in overruling thei r objecti ons to Jury Instruction No. 21 concerning the charges under 1 8 U.S.C. § 924(c), which prohibits the using and carrying of a firearm durin g and in relation to a drug trafficking crime. The

### 23

court correctly instructed the jury on the elements of the crime charged in count six (using and carrying firearms duringand in relation to a drug trafficking crime) in Instruction No. 20. The jury was told that the crim e ha d two elements: " One : that a defendant committed the crime o f distribution of a con trolled substance, as defined in these instructions,
a dru g trafficking crime; and Two : that a defendant knowingly used an d carri ed firearms during and in relation to the commission of either o f those crimes." The jury was further told that t he government had to prove both e lements beyond a reasonable doubt and also had to prove that a defend ant was not entrapped. The court then defined for the jury i n Instruction No. 21 one meaning for "use." Instr uction No. 21 stated: "An individual who exchanges a controlled substance for a firearm `uses' the firearmduring and in relation to a drug trafficking crime." Defendants challenge this instruction on two grounds.
First, Defendants contend that Instruction No. 21 improperly re quired the jury to find "use" if the jury found the parties had bartered drugs fo r fire arms. To support their argument, Defendants rely on the Suprem e Court's u se of the word "may" in Smith v. United States , 508 U.S. 22 3 (1993). Defendants specifically quote from Smith : "[U]sing a firearm in
a guns-for-drugs trade may constitute `us[ing] a firearm within the meanin g of § 924(c)(1).'" Id. at 237 (emphasis added). Defendants contend this language means that not every trade of a gun for drugs or drugs for guns is necessarily a use of the firearm within the meaning of § 924(c), and th e jury must decide whether or not "use" has occurred.

We believe the Defendants overlook the Supreme Court's holding i n Smith : "We therefore hold that a criminal who trades his firearm for drug s `uses' it during and in relation to a drug trafficking offense within the meaning of § 924(c)(1)." Id. at 239. Furthermore, the Court recentl y revisited the issue of "use" under 18 U.S.C. 924(c) in Bailey v. Unite d States , 116 S. Ct. 501

### 24

(1995), and stated th at the barter of a gun for drugs is "use" within the meani ng of § 924(c). Bailey , 116 S. Ct. at 505. After explaining tha t "use" requires some showing of active employment, the Court reiterated tha t this understanding of the term includes bartering a firearm. Id. at 508. Defe ndants err in their analysis by failing to distinguish between a factual finding and a legal conclusion; the factual finding of whether a firearmbecame an item of barter in a particular drug transaction is a matter for the jury, but the effect of that finding is a legal question, one that Smith

resolv ed. According to the Court's explanation in Bailey , Smith stands for the legal proposition (not mere factual possibility) that bartering a firearm is "use" under § 924(c).

We not e that this case differs from Smith in that Smith involved a defendant trading a g un for drugs, whereas Defendants in this case traded the ir drugs for guns. We believe this is a distinction without a difference. Section 924(c) prohibits using or carrying a firearm during and in relation to "a crime of drug trafficking. " Because selling cocaine base is as much a crime of drug trafficking as buying cocaine base, an d "`use' certainly incl udes . . . bartering," Bailey , 116 S. Ct. at 508, we believe that § 924(c) and the Smith holding apply with equal force to the facts of this case. The Defendants "used" the machine gun when the y proposed to the agents that the Defendants' drugs be traded for th e weapons, and then obtained the weapons in trade.

In Smith , the Supreme Court looked to § 924(d) to help define th e scope of the term "uses" in § 924(c). We do the same and note that on e "uses" a firearm under § 924(d)(1) when one "receives" a firearm i n violat ion of § 922(a)(3) (generally prohibiting the transport into o r receipt of a firearm in the state of the person' s residence if the firearm
was obtained outside that state by an unlicensed person). Hence, we are of the view that a pe rson can "use" a firearm in violation of § 924(c) by "receiving" the firearm

### 25

in a drugs for weapon exchange as well as by tendering a weapon as one's consideration in a gun for drugs trade ala Smith

.

In their second challenge to Jury Instruction No. 21, Defendant s similarly contend that the instruction erroneous ly removed from the jury's consider ation the "during and in relation to" element of § 924(c)

. Defendants correctly state that the government in this case had to prove not only the "use" el ement, but also the "during and in relation to . . . a crime of . . . drugtrafficking" element. Smith , 508 U.S. 237-38. The "during and in relation to" element was element two of the district court' s marshaling instructio n No. 20. The Supreme Court held in Smith , however, that contemporaneous bartering of weapons and firearms is use during and in relation to the drug trafficking crime, becau se the firearms are traded during and are an integral part of the transaction. Id. at 238.

The dis trict court here submitted to the jury the issue of whethe r the Defendants traded drugs for weapons and also instructed the jury on th e legal effect, under Smith , if the jury found suc h a trade had taken place. Under these facts, we find no error in the district court's instructio n concerning the elements of 18 U.S.C. § 924(c).

This case differs from United States v. Gaudin , 115 S. Ct. 231 0 (1995), where an element of the crime itself was entirely withdrawn from the jury and decided by the court. Here, all the trial judge did wa s define the term "uses " to mean just what the Supreme Court said it meant, in much the same way the court defined terms for the jury like "machin e gun," "possession," or "induced and persuaded." The jury still had th e responsibility to decide whether or not each and all of the elements of th e crime had been proven beyond a reasonable doubt. It still had to decide what actually happened in the motel room between the Defendants and the

### 26

officers, and whether or not either Defendant used a firearm in violation of the statute.

H. CONGRESS'S POWER UNDER COMMERCE CLAUSE

Defendants next argue that Congress exceeded its power under th e Commerce Clause when it enacted 21 U.S.C. §§ 841 and 924(c). This argument is foreclosed by United States v. Brown , 72 F.3d 96, 96 (8th Cir. 1995), petition for cert. filed , (Mar. 27, 1996) (No. 95-8470).

We have c onsidered Defendants' remaining arguments and find them to be either without merit or moot by the reversal.

III.
We reverse the judgments of the district court because the pros ecutor engaged in misconduct, depriving the Defendants of their right to a fair trial. We remand the case for a new trial as to both Defendants i n accordance with this opinion.

JOHN R. GIBSON, Circu it Judge, concurring in part and dissenting in part.

I concur in the holding that prosecutorial misconduct compels a new trial in this case. I respectfully dissent from that part of the court's opinion regarding the "use" of firearms under 18 U.S.C. § 924(c) (1994).

The district court instructed the jury that "[a]n individual wh o exchanges a controlled substance for a firearm `uses' the firearm during and in relation to a drug trafficking offense." I believe this materially misstates the law, and directs a verdict on the firearm charges.

### 27 The court today approves this instruction by expanding the Suprem e Court's holdings in Smith v. United States , 508 U.S. 223 (1993), and Baile y
v. United States , 116 S. Ct. 501 (1995), and neglecting the distinctio n between u sing a firearm to obtain drugs and using drugs to obtain a firearm. In its opinion, the court states that trading drugs for gun s instead of trading gu ns for drugs, as was the case in Smith , amounts to a distincti on without a difference. Slip op. at 24. The court conclude s that the Cannons used the guns within the meaning of the statute "when the y proposed to the agents that the Defendants' drugs be traded for th e weapons, and then obtained the weapons in trade." Id. I believe thi s conclusion goes beyond the "`ordinary or natural' meaning" of the ter m "use" and allows for a conviction under section 924(c)(1) without "active employment of the firearm" by the defendant. Bailey , 116 S. Ct. at 506. Such a holding is pro hibited by the Supreme Court's recent interpretation of the term "use" in section 924(c). Id.
Looking to Smith

for guidance, the S upreme Court recently reiterated that " [t]he word `use' in the statute must be given its `ordinary o r nat ural' meaning, a meaning variously defined as `[t]o convert to one' s service,' `to employ, ' `to avail oneself of,' and `to carry out a purpose
or ac tion by means of.'" Bailey , ll6 S. Ct. at 506 (quoting Smith , 50 8 U.S. a t 229 (citing Webster's New International Dictionary of Englis h Lang uage 2806 (2d ed. 1949) and Black's Law Dictionary1541 (6th ed

. 1990))). The central holding of Bailey , 116 S. Ct. at 506-509, is that th e government must show active employment of the firearm so as to establish use under section 924 (c). The Court stated that Smithfaced the question of "whether the barte r of a gun for drugs was a `use,' and concluded that it was." Bailey , 116 S. Ct. at 505. The Court then referred specifically to bartering "with a firearm," id. at 507, and "bartering" a firearm, id. at 508, which language denotes that the object bartered, and thus used, wa s the firearm.

### Unlicensed receipt of weapons from outside the state and 5 

### receipt of stolen firearms were only two of the numerous weapon offenses resulting in forfeiture and considered by the Court in Smith , 508 U.S. at 234 n.*.
28 Smith , 50 8 U.S. at 237, held that trading a firearm for drugs wa s using the firearm within the meaning of section 924(c). In drawing this conclu sion, the Court turned to section 924(d) for assistance i n interpreting section 924(c). Id. at 234-36. The Court noted that "one wh o tran sports, exports, sells, or trades a firearm `uses' it within th e meanin g of section 924(d)(1)--even though those actions do not involv e using the firearm as a weapon." Id. at 235. Further, "using a firearm" must mean the same thing in both section 924(c)(1) and section 924(d). Id

.

The court today relies on the fact that section 924(d) provides for forfeiture when "unlicensed receipt of a weapon from outside the State, in violation of section 922(a)(3)," occurs. In add ition, forfeiture may also
occ ur when one receives stolen firearms in violation of section 922(j)

. See Smi th , 508 U.S. at 234 n.*. Certainly, one who receives an illega l firearmmust forfeit that weapon under section 924(d). This, however , offers no support for concluding that a person receiving a firearm i n exchange for drugs "used" the firearm within the meaning of section 924(c) , so as to require a mandatory minimum sentence, here thirty years. This wa s not the question deci ded in Smith , and such a conclusion cannot withstand scrutiny in light of the Court's ruling in Bailey

.
Smit h , 508 U.S. at 234-35, examined all of section 924(d) i n 5 deciding that transporting, exporting, selling, and trading were all "use" within the meaning of section 924(d)(1). This is consistent with Bailey , 116 S. Ct. at 506-07, as each of these activities involves the "activ e employment" of a firearm.

### I also believe that it cannot be said that the Cannons used 6 

### or carried the firearms "during and in relation to" a drug trafficking offense. I do not treat this issue in detail because the court's direction that a person exchanging drugs for a firearm uses it during and in relation to the drug trafficking offense essentially directs a verdict for the government, which is plainly error.

29 Baileyconstrains the holding in Smithand prohibits the broa d int erpretation used by the court today. Smithand Baileycan only b e reconciled by limiting Smith to its express holding: When a person who ha s a firearm trades that firearm in exchange for drugs, that person has used the firearm to obtain drugs. The case simply cannot stand for the convers e of this proposition.

The Cannons here possessed drugs that they traded for firearms

. After receiving the firearms, they were promptly arrested leaving the mote l with the firearms in hand. While the Cannons actively employed the drugs in order to obtain the firearms, there was no "e vidence sufficient to show
an active employment of the firearm by the defen dant." Bailey , 116 S. Ct. at 506. Thus, the Cannons did not "use" the firearms within the meaning of section 924(c)(1), and the district court erred in instruct ing the jury 6 that exchanging a con trolled substance for a firearm constituted "use" of a firearm.

I would reverse and remand on this issue as well.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.