_____________

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. *
2

_________________________ *

*

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

drug and firearm offenses. They challenge the validity of their

convictions, raising a number of issues including entrapment, outrageous

government conduct in violation of their due process rights, and

prosecutorial misconduct. The United States cross appeals, contending that

the district court erroneously sentenced the defendants. We reverse and

remand.

I.

Viewing the evidence in the light most favorable to the verdicts, a

reasonable jury could have found the following.

Keith Cannon and Stephanie Cannon (collectively, "Defendants"),

residents of Minneapolis, Minnesota, sold cocaine 
3

base on four occasions to Special Agent Charles Sherbrooke, an undercover

officer with the West Central Minnesota Drug Task Force. The first

transaction was recorded 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 were

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 less than

a week later. When Sherbrooke asked Defendants whether they were still

interested in obtaining firearms, Defendants again indicated their

interest, this time specifically 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 and

offered to get anything else Defendants might want. He explained that the

deal would have to take place in North Dakota, however, because there was

an arrest warrant out for his supplier in Minnesota. When Sherbrooke

kidded Defendants about their reasons for wanting the weapons, Defendants

said they were "desperate" 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 Defendants. The conversation

immediately turned to the plans for the next transaction. Stephanie Cannon

again told Sherbrooke she was interested in obtaining five handguns, and

Sherbrooke replied, as he had at the prior meeting, that his supplier could

get her the handguns and anything else she might want. At three points in

the conversation, Sherbrooke stated that Defendants would have an

assortment of about 15 weapons from which to choose. When 
4

Sherbrooke asked how much a couple of "oz's" of cocaine base would cost

him, Keith Cannon answered and then noted that the parties could trade guns

for drugs. Before parting, the parties agreed to meet in Fargo, North

Dakota, the following week.

As scheduled, the fourth and final transaction occurred at a motel

in Fargo. Agent Sherbrooke introduced Defendants to Special Agent John

Keating of the Bureau of Alcohol, Tobacco, and Firearms, who posed as

Sherbrooke's firearm supplier. When everyone was introduced, Sherbrooke

served Defendants alcoholic drinks. After some initial small talk, the

parties discussed the terms of sale for the cocaine base Defendants had

brought. The conversation then turned to the subject of firearms. 

Agent Keating had with him 10 firearms in a dufflebag, including

three 9 mm semi-automatic pistols, two .25 caliber semi-automatic pistols,

two .38 caliber revolvers, one .357 magnum caliber revolver, and two MACtype machine guns -- one a .45 caliber and the other a .380 caliber.

Keating removed each weapon from the bag, briefly identifying it and

showing it to Defendants. When Keating described the larger of the machine

guns as capable of holding 30 rounds, Sherbrooke called it a "neat item."

Keating explained that the smaller machine gun could hold 15 rounds. 

Defendants proceeded to inspect the various firearms. Keith Cannon

expressed his concern that the .25 caliber semi-automatic pistol would not

inflict enough damage. Agent Keating disagreed but noted it was not as

powerful as the machine guns. When Keating explained again that the larger

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 selected

three of them. 
5

The parties' attention then turned to a discussion on how Sherbrooke

had been shorted in an earlier deal with the Defendants. After they

resolved that issue, Agent Sherbrooke inquired whether Defendants wanted

any of the remaining guns. Keith said no. Keith stated, however, that he

wanted to get together with Keating later to purchase an "Uzi or some type

of automatic weapon." Stephanie pointed to the machine gun and said,

"That's it." Keith explained the dangers the Defendants face on the street

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 told

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 not

purchase them. Keith stated he would like to purchase a machine gun at the

next meeting, again stressing the need for protecting the business. He

stated, "I believe in sprayin' everything that's moving." Both Defendants

said that, in the meantime, the handguns would hold 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 of cocaine base for three handguns, the MAC-type .380

caliber machine gun, and $4,600 in United States currency. After the

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,

which included counts of distribution of cocaine base and conspiracy to

distribute and to possess with intent to distribute, in violation of 21

U.S.C. §§ 841(a) and 846; of 
6

knowingly using and carrying firearms during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c); and of knowingly and

unlawfully possessing a machine gun, in violation of 18 U.S.C. §§ 922(o)

and 924(a)(2). Keith Cannon was also charged with being a felon knowingly

in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and

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 to

dismiss the indictment, contending the officers had violated Defendants'

due process rights by artificially creating venue in the District of North

Dakota. Defendants alternatively moved for transfer of venue pursuant to

Rule 21(a) and (b) of the Federal Rules of Criminal Procedure. The

district court denied these motions. Defendants also moved to dismiss the

counts relating to receiving 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 audio 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 jury

rejected it and returned guilty verdicts on all counts. Defendants raised

the defense again in posttrial motions for judgment of acquittal and for

a new trial. The district court denied the motions and held that

Defendants were not entrapped as a matter of law. At sentencing, however,

the court found that the government had engaged in sentencing entrapment

and sentencing manipulation with regard to the machine gun charges.

Accordingly, the court did not impose the mandatory, consecutive, 30-year

sentence for knowingly using and carrying a machine gun during and in

relation to a drug trafficking offense, imposing instead the 
7

mandatory, consecutive, 5-year sentence for using or carrying a firearm

during and in relation to a drug trafficking offense. See 18 U.S.C.

§ 924(c)(1). Defendant Keith Cannon was sentenced to 216 months in prison

(156 + 60) and a five-year term of supervised release, and fined $17,500.

Stephanie Cannon was sentenced to 181 months in prison (121 + 60) and a

five-year term of supervised release, and fined $17,500. Defendants appeal

their convictions and sentences on numerous grounds, and the government

cross appeals the sentences.

II.

A. VENUE 

The first three drug deals occurred in Minnesota, where Defendants

reside, and the fourth transaction took place in North Dakota. Defendants,

both of whom are African-Americans, moved to dismiss the indictment,

claiming the government had violated their due process rights by

manipulating the transactions to create venue in North Dakota. In the

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 their

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 transaction 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
8

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

We agree with the district court that Defendants' argument lacks

evidentiary support. Defendants cite only the 1990 census, which found

that African-Americans constitute 2.17 percent of 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 of

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 Defendants were purposefully enticed to North Dakota in order to

control intentionally the racial composition of the jury. Cf. United

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 made

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

the high threshold for establishing outrageous government conduct in

violation of their due process rights. Cf. Bell v. United States, 48 F.3d

1042, 1044 (8th Cir. 1995) (holding that failure to offer proof of

impermissible motives for choosing to prosecute in federal forum precludes

finding of due process violation).

Defendants also challenge the district court's decisions on the Rule

21 motions. As a preliminary matter, we note that venue was proper in

North Dakota under 18 U.S.C. § 3237(a), which creates venue in any district

where the alleged criminal conduct occurs. If, however, the district court

believed Defendants would not receive a fair and impartial trial due to

existing prejudice in North Dakota, the district court was required to

transfer the 
9

trial. Fed. R. Crim. P. 21(a). In addition, the court also could exercise

its discretion and transfer the trial to another district in the interest

of justice and for the convenience of the parties. Fed. R. Crim. P. 21(b).

Defendants contend the district court abused its discretion in denying

their Rule 21 motions, because, as African-American defendants from a large

city, they could not obtain a fair and impartial trial as described in Rule

21(a), and a transfer of venue was in the interest of justice, Rule 21(b).

We agree with the district court that these motions, like Defendants'

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 therefore

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 his 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 court

overruled the objection, stating that closing arguments can be

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. But

there are still some around here." (Tr. of Rebuttal Closing Arg. by Gov't

at 8, Jan. 20, 1995.) The remainder of the closing 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 discretion in controlling closing

arguments, overturning the lower court only when it clearly abuses its

discretion. United States v. Nelson, 988 F.2d 798, 807 (8th Cir.), cert.

denied, 114 S. Ct. 302 (1993). We examine prosecutorial remarks to

determine, first, whether the remarks were in fact improper, and if so,

whether, in the context of the entire trial, the remarks "`prejudicially

affected [Defendants'] substantial rights, so as to deprive [them] of a

fair trial." United States v. Malone, 49 F.3d 393, 398 (8th Cir.) (quoting

United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985)), cert.

denied, 116 S. Ct. 208 (1995). If we reach the second step, we consider:

"(1) the cumulative effect of such misconduct; (2) the strength of the

properly admitted evidence of [Defendants'] guilt; and (3) the curative

actions taken by the trial court." United States v. Eldridge, 984 F.2d

943, 946-47 (8th Cir. 1993).

We have no doubt that the prosecutor's statements in this case were

improper. Prosecutors must refrain from using methods calculated to

produce 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. Referring 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 remarks

were highly improper. Cf. United States v. Singer, 660 F.2d 1295, 1304

(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,

587-88 (5th Cir. 1969) (finding prosecutor's reference to "hoodlums"

improper). We further perceive a thinly veiled appeal to parochial

allegiances in the prosecutor's remarks. We should not have to remind an

Assistant United States Attorney that the Defendants are citizens of the

United States as well, and that it was a court of the United States in

which the proceedings 
11

were being held. The district court erred by not sustaining the objection

and by failing to take curative action.

Having determined the remarks to be improper, we must decide their

effect on the Defendants' fair trial rights using the three factor test

from 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 destructive of the right to a fair trial that reversal is

mandated." United States 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 have

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 on the drug charges to be called overwhelming, the evidence

concerning the machine gun and the Defendants' predisposition to purchase

it is not so strong as to be called overwhelming, and indeed the

experienced district judge was convinced enough that he found at the

sentencing hearing that the Defendants had no predisposition to acquire a

machine gun. Tr. Sent. at 45 ("I know from the facts that I heard on two

or three different occasions that the Defendants had no predisposition to

acquire a machine gun."); id. at 47 ("My God, folks, we cannot permit well

meaning, capable law enforcement people to entice people to violate the law

in this way."). Finally, we note that the district judge's failure to

sustain the defense counsel's objection to the remarks (and indicating that

closing arguments are argumentative) meant that there was no curative

instruction given to neutralize the prejudicial effect of the prosecutor's

remarks.
12

We believe that by twice calling the African-American Defendants "bad

people" and by calling attention to the fact that the Defendants were not

locals, the prosecutor gave the jury an improper and convenient hook on

which to hang their verdict, and we are not prepared to say that the

evidence was so overwhelming that the court's error in permitting the

improper comments to stand was harmless beyond a reasonable doubt. We

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 unnecessary

to determine if the district court was correct in its decision that both

sentencing entrapment and sentencing manipulation had occurred in this

case. We do address those issues that may arise again at a second trial.

C. EVIDENTIARY CHALLENGE

Defendants challenge the admission of each of the four quantities of

cocaine base purchased at each transaction, contending the government

failed to prove a proper chain of custody. Specifically, Defendants argue

the government failed to show what happened to the cocaine base between the

time it was mailed to a DEA laboratory for testing and the time when a DEA

forensic chemist at the laboratory tested it. 

We review a district court's decision to admit evidence over an

objection for an abuse of discretion. United States 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 bad

faith, ill will, or proof of tampering, the court operates under a

presumption of integrity for the physical evidence. Id. Here, the
13

only change in the cocaine occurred when the DEA chemist pulverized the

rocks of cocaine for testing. Because Defendants failed to aver any facts

rebutting the presumption of integrity, we find no abuse of discretion in

the admission of the cocaine base as evidence in this case. 

D. RULE OF LENITY

Defendants also challenge the district court's decisions not to

authorize them to obtain expert testimony on the chemical compositions of

cocaine and cocaine base. Initially, Stephanie filed a pretrial

application asking the district court to authorize the costs of obtaining

transcripts from other cases in which experts had testified on this issue.

She explained that she intended to show that the heightened penalty for

cocaine base should be ignored under the rule of lenity, because the

distinction between cocaine and cocaine base is scientifically meaningless.

The district court denied the application, holding the transcripts were not

necessary to Stephanie's defense because our court has overwhelmingly

rejected challenges to the statutory differences in sentences imposed for

convictions involving cocaine base and cocaine. Stephanie and Keith then

filed another application, not only seeking reconsideration of the decision

regarding the transcripts, but also requesting authorization to employ a

chemistry expert to testify at their trial that cocaine and cocaine base

are the same thing. Citing the reasoning previously stated in denying the

first application, the district court denied Defendants' request. At

sentencing, the court again rejected Defendants' position regarding the

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 district court finds that such

services are necessary and 
14

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 appointment of experts would

aid defendants in preparing and presenting an adequate defense. United

States v. Moss, 544 F.2d 954, 961 (8th Cir. 1976), cert. denied, 429 U.S.

1077 (1977). 

We find no abuse in the district court's conclusion that the expert

testimony sought here was unnecessary. As the district court observed, our

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. United 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' argument

that 21 U.S.C. § 841(b) is unconstitutionally vague and that we should

consequently ignore its heightened penalty provisions for cocaine base

under the rule of lenity. United States v. Jackson, 64 F.3d 1213, 1219

(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 at

sentencing was correct.

E. ENTRAPMENT

Defendants challenge their convictions, arguing that the district

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 defense of entrapment stems from a concern that law enforcement

officials and agents should not manufacture crime. 
15

United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984). To be entitled

to jury instructions on an entrapment theory, defendants must show some

evidence that the government agents implanted the criminal design in their

minds and induced them to commit the offense. United States v. Eldeeb, 20

F.3d 841, 843 (8th Cir.), cert. denied, 115 S. Ct. 269 (1994). Once a

defendant has made this showing, the government then has the burden of

proving that the defendant was predisposed to commit 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

defendant was an unwary innocent or, instead, an unwary criminal who

readily availed himself of the opportunity to perpetrate the crime."

Mathews v. United States, 485 U.S. 58, 63 (1988) (internal quotations

omitted). In other words, "determining a defendant's predisposition

requires examination of the defendant's personal background to see `where

he sits on the continuum between the naive first offender and the

streetwise habitue.'" United States v. Kummer, 15 F.3d 1455, 1459 (8th

Cir. 1994) (quoting Lard, 734 F.2d at 1293). 

Entrapment 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 criminal

design; (2) that the agent implanted in the mind of an innocent person the

disposition to commit the offense; and (3) that the defendant committed the

criminal act at the urging of the government agent." Id. We view the facts

in the light most favorable to the government, reversing only when no

reasonable jury could have reached the guilty verdict. Id. 

Considering the evidence in this case, we can easily dispose of

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 reveal

their already established criminal drug-dealing proclivity prior to the

government's sting operation. 

We also have no difficulty disposing of Defendants' argument as to

the handgun verdicts on the § 924(c) charges. Within the first minute of

the first transaction, the Defendants indicated their interest in acquiring

specific firearms. They 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 conjunction 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 purchase

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 is

sufficient for a reasonable 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

factors, some of which involve circumstantial evidence, courts have

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

activity, i.e., they came to Fargo specifically to purchase firearms

illegally and to engage in established and ongoing drug trafficking, where

firearms are tools of the trade. The record in this case contains evidence

that a machine gun is a drug dealer's most prized possession. A reasonable

jury could therefore conclude Defendants are much closer on the continuum

to a streetwise habitue than a naive first offender. Additionally, Keith

Cannon's comments during the negotiations of the firearm transaction,

stressing the need to protect Defendants' drug operation and indicating

they wanted even more fire power (a weapon capable of holding 50 rounds)

than the available firearms offered, reveal the Defendants' interest in

possessing a machine gun and the intent to obtain one. Considering this

circumstantial evidence, a reasonable jury could indeed take the small

inferential step of concluding that Defendants were predisposed to

obtaining a machine gun independent of any government inducement. 

F. OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

Defendants also frame their challenge to the convictions involving

the machine gun as a violation of due process, contending that the

officers' conduct was so outrageous that the district court should have

dismissed counts six and seven of the indictment. According to Defendants,

selling them a machine gun when they had not specifically asked for one

violated their due process rights, because the officers' conduct was aimed

solely at increasing Defendants' sentence for count six by 25 years. See 2

18 U.S.C. § 924(c) (30-year mandatory consecutive sentence for using or

carrying a machine gun 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 
18

and fundamentally unfair that due process principles would bar the

conviction of a defendant); Hampton v. United States, 425 U.S. 484, 491-500

(1976) (majority of Supreme Court, in concurring and dissenting opinions,

agreeing 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 process

violation occurred in this case. The government further urges this court

not to unduly constrain law enforcement officials by limiting them to buy

or sell only what defendants specifically request or by placing a burden

on the government to set forth motives for each and every step of law

enforcement activities. The district court denied Defendants' motion to

dismiss counts six and seven of the indictment on due process grounds. We

review this question of law de novo. United States v. Dougherty, 810 F.2d

763, 770 (8th Cir. 1987).

The defense of outrageous government conduct is similar to, though

distinct from, the defense 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

predisposition to commit the crime, the outrageous government conduct

defense focuses on the government's conduct. Kummer, 15 F.3d at 1459 n.9.

The vexing question before us is where the line lies between covert

investigative conduct by law enforcement officers that is within

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, 959

F.2d 731, 734 (8th Cir.) (quoting United States v. Johnson, 767 F.2d 1259,

1275 (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 
19

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

(8th Cir. 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. 95-1582). Further, we have noted that we "`should go

very slowly before staking out rules that will deter government agents from

the proper performance 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 "that

investigative officers and agents may go a long way in concert with the

individual in question without being deemed to have acted so outrageously

as to violate due process . . . ." Kummer, 15 F.3d at 1460 (quoting United

States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976)). After thorough review

of the record and the briefs, and keeping in mind the above principles, we

conclude the officers' conduct in this case was not so shocking that it

crossed over the constitutional line, violating Defendants' due process

rights. We are fortunate in this case not to have to work from a cold

record. We have availed ourselves of the opportunity to view the video

tape of the actual drugs-for-guns transaction and have studied it

carefully.

We look first at the agents' act of offering a selection of firearms

other than the type Defendants had requested. This conduct is neither

outrageous nor shocking. Defendants had told the officers on numerous

occasions that they wanted to obtain firearms. Although Defendants had

requested particular weapons, Officer Sherbrooke thrice told Defendants

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 these

circumstances, we find nothing shocking, outrageous, or even surprising in

the officers' providing a selection of weapons to willing buyers. We

believe the officers were permitted to test the
20

limits of the Defendants' willingness to acquire firearms illegally in

general and were not limited just to filling the customers' order. 

 

 Having literally looked at the officers' salesmanship techniques, we

again conclude that no due process violation occurred. The Defendants

displayed their interest in the two machine guns by their comments: They

first indicated an intent to buy a machine gun in the future; they

explained their need for one to help protect their drug enterprise; and

Keith Cannon indicated he wanted to purchase a machine 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 then

noting the positive attributes of the guns -- is shocking or outrageous.

The officers did not coerce or use hard-sell tactics to persuade Defendants

to purchase a machine gun. The district court described the officers'

effort as "soft-sell." (R. at 329.) Nor did the officers misrepresent the

nature or the price of the machine guns or any of the other weapons. The

officers simply kept the conversation going and responded to Keith Cannon's

expressed concern about having enough fire power to adequately protect

Defendants' drug business. The officers provided Defendants an opportunity

to purchase a more powerful weapon. We do note the officers responded to

Keith's indication that he would like to purchase a machine gun with a 50-

round capacity at the next meeting by indicating that a machine gun may not

be available then; however, in the context of the conversation, this

conduct was not so outrageous that it violated Defendants' due process

rights. It seems to us to be a technique commonly used by salespersons,

viz., buy this product now before someone else does. Like the district

court, we believe that if the defendants had decided not to buy a machine

gun, the officers "would have politely acquiesced." (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 conduct leading to the sale was

not, in itself, outrageous.

If bringing the selection of firearms to the meeting and conducting

themselves as the officers did do not violate the Defendants' due process

rights, the question then becomes whether the difference in punishment

between the consecutive penalty for using or carrying the handguns the

Defendants did request (imprisonment for 5 years) and the heavier penalty

for using or carrying the machine gun (imprisonment for 30 years) makes the

officers' conduct outrageous. See 18 U.S.C. § 924(c)(1). Defendants argue

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 appropriate for a particular crime. We decline to do

so. Our judicial role in analyzing the alleged outrageous government

conduct is to measure the officers' actions against the constitutional

limits of the Due Process Clause, not as the case plays out under the

penalties prescribed by Congress. Because the agents' conduct itself 3

was not unconstitutional, we conclude that the district court properly

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

Defendants next argue that the district court erroneously submitted

the issue of inducement to the jury in the jury instructions. Although

4

a defendant who has produced evidence of inducement is entitled to jury

instructions accurately stating as a whole the law of entrapment, the

defendant has no right to particularly worded instructions. United States

v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). The jury instruction in this

case, which was based on the Eighth Circuit Model Criminal Instruction No.

9.01, correctly states the law of our circuit. United States v. Aikens, 64

F.3d 372, 375 (8th Cir. 1995), vacated and remanded for reconsideration in

light of Bailey v. United States, 116 S. Ct 501 (1995), 116 S. Ct. 1364

(1995). The instructions, when viewed as a whole, properly focus on the

question of Defendants' predisposition and place the burden on the

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 their

objections to Jury Instruction No. 21 concerning the charges under 18

U.S.C. § 924(c), which prohibits the using and carrying of a firearm during

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 during and in relation to a drug

trafficking crime) in Instruction No. 20. The jury was told that the crime

had two elements: "One: that a defendant committed the crime of

distribution of a controlled substance, as defined in these instructions,

a drug trafficking crime; and Two: that a defendant knowingly used and

carried firearms during and in relation to the commission of either of

those crimes." The jury was further told that the government had to prove

both elements beyond a reasonable doubt and also had to prove that a

defendant was not entrapped. The court then defined for the jury in

Instruction No. 21 one meaning for "use." Instruction No. 21 stated: "An

individual who exchanges a controlled substance for a firearm `uses' the

firearm during and in relation to a drug trafficking crime." Defendants

challenge this instruction on two grounds.

 

First, Defendants contend that Instruction No. 21 improperly required

the jury to find "use" if the jury found the parties had bartered drugs for

firearms. To support their argument, Defendants rely on the Supreme

Court's use of the word "may" in Smith v. United States, 508 U.S. 223

(1993). Defendants specifically quote from Smith: "[U]sing a firearm in

a guns-for-drugs trade may constitute `us[ing] a firearm within the meaning

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 the

jury must decide whether or not "use" has occurred.

We believe the Defendants overlook the Supreme Court's holding in

Smith: "We therefore hold that a criminal who trades his firearm for drugs

`uses' it during and in relation to a drug trafficking offense within the

meaning of § 924(c)(1)." Id. at 239. Furthermore, the Court recently

revisited the issue of "use" under 18 U.S.C. 924(c) in Bailey v. United

States, 116 S. Ct. 501 
24

(1995), and stated that the barter of a gun for drugs is "use" within the

meaning of § 924(c). Bailey, 116 S. Ct. at 505. After explaining that

"use" requires some showing of active employment, the Court reiterated that

this understanding of the term includes bartering a firearm. Id. at 508.

Defendants err in their analysis by failing to distinguish between a

factual finding and a legal conclusion; the factual finding of whether a

firearm became 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 resolved. 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 note that this case differs from Smith in that Smith involved a

defendant trading a gun for drugs, whereas Defendants in this case traded

their 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, and

"`use' certainly includes . . . 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 they

proposed to the agents that the Defendants' drugs be traded for the

weapons, and then obtained the weapons in trade.

In Smith, the Supreme Court looked to § 924(d) to help define the

scope of the term "uses" in § 924(c). We do the same and note that one

"uses" a firearm under § 924(d)(1) when one "receives" a firearm in

violation of § 922(a)(3) (generally prohibiting the transport into or

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 person 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, Defendants

similarly contend that the instruction erroneously removed from the jury's

consideration 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" element, but also the "during and in relation to . . .

a crime of . . . drug trafficking" element. Smith, 508 U.S. 237-38. The

"during and in relation to" element was element two of the district court's

marshaling instruction 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, because the firearms are traded

during and are an integral part of the transaction. Id. at 238. 

The district court here submitted to the jury the issue of whether

the Defendants traded drugs for weapons and also instructed the jury on the

legal effect, under Smith, if the jury found such a trade had taken place.

Under these facts, we find no error in the district court's instruction

concerning the elements of 18 U.S.C. § 924(c).

This case differs from United States v. Gaudin, 115 S. Ct. 2310

(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 was

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 "machine

gun," "possession," or "induced and persuaded." The jury still had the

responsibility to decide whether or not each and all of the elements of the

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 the

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 considered 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 prosecutor

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 in

accordance with this opinion. 

JOHN R. GIBSON, Circuit 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 who

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 Supreme

Court's holdings in Smith v. United States, 508 U.S. 223 (1993), and Bailey

v. United States, 116 S. Ct. 501 (1995), and neglecting the distinction

between using a firearm to obtain drugs and using drugs to obtain a

firearm. In its opinion, the court states that trading drugs for guns

instead of trading guns for drugs, as was the case in Smith, amounts to a

distinction without a difference. Slip op. at 24. The court concludes

that the Cannons used the guns within the meaning of the statute "when they

proposed to the agents that the Defendants' drugs be traded for the

weapons, and then obtained the weapons in trade." Id. I believe this

conclusion goes beyond the "`ordinary or natural' meaning" of the term

"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 prohibited by the Supreme Court's recent interpretation

of the term "use" in section 924(c). Id.

Looking to Smith for guidance, the Supreme Court recently reiterated

that "[t]he word `use' in the statute must be given its `ordinary or

natural' 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 action by means of.'" Bailey, ll6 S. Ct. at 506 (quoting Smith, 508

U.S. at 229 (citing Webster's New International Dictionary of English

Language 2806 (2d ed. 1949) and Black's Law Dictionary 1541 (6th ed.

1990))). The central holding of Bailey, 116 S. Ct. at 506-509, is that the

government must show active employment of the firearm so as to establish

use under section 924(c). The Court stated that Smith faced the question

of "whether the barter 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, was

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, 508 U.S. at 237, held that trading a firearm for drugs was

using the firearm within the meaning of section 924(c). In drawing this

conclusion, the Court turned to section 924(d) for assistance in

interpreting section 924(c). Id. at 234-36. The Court noted that "one who

transports, exports, sells, or trades a firearm `uses' it within the

meaning of section 924(d)(1)--even though those actions do not involve

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 addition, forfeiture may also

occur when one receives stolen firearms in violation of section 922(j).

See Smith, 508 U.S. at 234 n.*. Certainly, one who receives an illegal

firearm must forfeit that weapon under section 924(d). This, however,

offers no support for concluding that a person receiving a firearm in

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 was

not the question decided in Smith, and such a conclusion cannot withstand

scrutiny in light of the Court's ruling in Bailey.

Smith, 508 U.S. at 234-35, examined all of section 924(d) in

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 "active

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

Bailey constrains the holding in Smith and prohibits the broad

interpretation used by the court today. Smith and Bailey can only be

reconciled by limiting Smith to its express holding: When a person who has

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 converse

of this proposition.

The Cannons here possessed drugs that they traded for firearms.

After receiving the firearms, they were promptly arrested leaving the motel

with the firearms in hand. While the Cannons actively employed the drugs

in order to obtain the firearms, there was no "evidence sufficient to show

an active employment of the firearm by the defendant." 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 instructing the jury 6

that exchanging a controlled 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.