2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-5-2012

USA v. Danny Tolentino

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3588

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Danny Tolentino" (2012). 2012 Decisions. Paper 755.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/755
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3588

_____________

UNITED STATES OF AMERICA

v.

DANNY TOLENTINO,

a/k/a Dalmacio Tolentino,

 Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-09-cr-00484-002)

District Judge: Hon. William J. Martini

_____________

Submitted under Third Circuit LAR 34.1(a)

June 22, 2012

Before: AMBRO, VANASKIE and ALDISERT, Circuit Judges

(Filed: July 5, 2012)

_____________

OPINION OF THE COURT

_____________

ALDISERT, Circuit Judge.

In 2011 Dalmacio “Danny” Tolentino was found guilty of four drug trafficking

charges and was sentenced to thirty-eight months‟ incarceration and five years‟
2

supervised release. He appeals from the United States District Court for the District of 

New Jersey‟s final judgment. Tolentino‟s basic contention is that the District Court failed 

to raise the outrageous government conduct defense sua sponte, and that its failure

constituted a violation of Appellant‟s rights assured by the Due Process Clause. 

Because we write primarily for the parties, who are familiar with the facts and the 

proceedings in this case, we will revisit them only briefly. 

In early 2007 Luis Fernando Arcila Fajardo, the government‟s confidential 

informant, introduced himself to Tolentino, the Appellant, at Tolentino‟s barbershop in 

Passaic, New Jersey. Arcila told Tolentino that he could smuggle drugs through the 

Newark airport but that he did not have access to any drugs, soliciting Tolentino‟s help.

The two continued to see each other regularly at the barbershop, but the first time Arcila 

ever recorded one of their conversations was a year-and-a-half later. 

On June 25, 2009, Tolentino was charged with conspiring to distribute and possess 

with intent to distribute five kilograms or more of cocaine, to which he pled guilty on 

November 13, 2009. Tolentino subsequently sought to withdraw his plea. On December 

17, 2010, the District Court granted Tolentino‟s motion to withdraw. The government 

subsequently charged him with conspiring to import over five kilograms of cocaine, 

conspiring to distribute and possess with intent to distribute over five kilograms of 

cocaine, aiding in the importation of cocaine, and knowingly attempting to distribute and 

possess with intent to distribute over five kilograms of cocaine.

Tolentino‟s conviction was based largely on the testimony of, and recordings 

made by Arcila, the government‟s confidential informant. During one of the recorded

conversations, which took place on the same block as the barbershop, Tolentino can be 

heard discussing potential prices and buyers for drugs. Arcila testified also that Tolentino 
3

introduced him to “Willy,” a person involved in the drug trafficking business who was 

able to purchase the drugs and arrange for their transport to the United States.

From 2004 until 2011, Arcila was paid $60,000 as compensation for his work as a 

confidential informant, $12,000 of which was for his work on Tolentino‟s case. Federal 

authorities have deferred Arcila‟s deportation seven times since 2004, and have taken 

steps to prevent his mother and brother from being deported as well. The Department of 

Homeland Security has also sponsored an S-Visa application for Arcila, which will make 

it possible for him to gain permanent resident status in the United States, notwithstanding 

his past felony convictions. 

Tolentino presented a theory of entrapment at trial, which the jury rejected, finding 

him guilty on four drug trafficking counts. Tolentino moved for a judgment of acquittal, 

again arguing that he was entrapped. The Court denied this motion and eventually 

sentenced him to 38 months‟ imprisonment. Tolentino timely appealed.

1

II.

The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on whether 

Tolentino waived the defense of outrageous government conduct at trial. See Rule 12 (e), 

Federal Rules of Criminal Procedure; United States v. Pitt, 193 F.3d 751, 760-761 (3d 

Cir. 1999). We review unraised claims for plain error. See Rule 52(b); Pitt, 193 F.3d at 

760. 

III.

We conclude that Tolentino waived this defense of outrageous government 

conduct by not raising it before his trial began. Because Tolentino‟s claim would have 

 

1

Tolentino did not raise the outrageous government conduct defense before or during his 

trial. 
4

also failed on its merits, the District Court did not err when it failed to raise this defense

sua sponte and dismiss Tolentino‟s charges. We will therefore affirm the District Court‟s 

judgment.

A.

An outrageous government conduct defense “examines whether a defendant‟s due 

process rights have been violated because the government created the crime for the sole 

purpose of obtaining a conviction.” Pitt, 193 F.3d at 759-760. The defense is “based on 

an alleged defect in the institution of the prosecution itself,” and is thus covered under 

Rule 12(b) of the Federal Rules of Criminal Procedure. Id. at 760. A defendant waives 

the ability to raise an outrageous government conduct defense if it is not raised before the 

trial begins. Because it is undisputed that Tolentino failed to raise this defense prior to his 

trial, we hold that he waived his right to bring it before us on appeal. 

Rule 12(e) contains an excuse of waiver if the defendant can show “good cause” 

for failing to make a timely 12(b) motion. United States v. Rose, 538 F.3d 175, 184-185. 

For example, we have held that a defendant did not waive his ability to raise an 

outrageous government conduct claim on appeal because “it may have been too late for 

[him] to make a Rule 12(b) motion when [he was] given the information [relating to the 

claim].” United States v. Gonzales, 927 F.2d 139, 144 (3d Cir. 1991). But an excuse of 

waiver should be granted only if “compliance with the procedural requirement [was] 

virtually impossible.” Pitt, 193 F.3d at 760.

Tolentino has asserted no justification as to why he failed to raise this defense in a 

timely manner. Indeed, he provided the same facts here on appeal as he did for his 
5

entrapment defense at trial. Tolentino has not only failed to address why it was 

impossible for him to file a 12(b) motion, but his brief fails to even argue that his wavier 

deserves excuse. Tolentino thus may not now use the waived claim as an end-run around

his failed entrapment defense. 

B.

Even if this defense were not waived, it would nonetheless fail. Although the 

defense of outrageous government conduct is “often invoked by defendants, [it] is rarely 

applied by courts.” United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996) (citation 

omitted). “The pertinent question is whether the government‟s conduct was so outrageous 

or shocking that it amounted to a due process violation.” United States v. Christie, 624 

F.3d 558, 573(3d Cir. 2010) (citation omitted). “[C]ourts have experienced considerable 

difficulty in translating „outrageous misconduct‟ into a defined set of behavioral norms,” 

United States v. Nolan-Cooper, 155 F.3d 221, 230 (3d Cir. 1998) (citation omitted), but it 

is generally “reserved for only the most egregious circumstances,” United States v. 

Mosley, 965 F.2d 906, 910 (3d Cir. 1992). “[T]he challenged conduct must be shocking, 

outrageous, and clearly intolerable,” thus “violat[ing] our sense of fundamental fairness 

or shock[ing] the universal sense of justice.” Pitt, 193 F.3d at 761-762 (citing United 

States v. Russell, 411 U.S. 423, 432 (1973)). “[W]e repeatedly have noted that we are 

„extremely hesitant to find law enforcement conduct so offensive that it violates the Due 

Process Clause.‟” United States v. Hoffecker, 530 F.3d 137, 154 (3d Cir. 2008) (quoting 

Voigt, 89 F.3d at 1065).
6

Tolentino contends that the government‟s conduct was outrageous because it

incentivized its informant without supervising him, thereby allowing Arcila to persuade 

Tolentino to join a drug conspiracy. Even if there may have been something “shocking” 

about the incentives the government gave Arcila, Christie, 624 F.3d at 573, such an 

allegation would impugn the credibility of Arcila, not the behavior of the government,

see Gonzales, 927 F.2d at 144 (“„[T]he method of payment is properly a matter for the 

jury to consider in weighing the credibility of the informant.‟” (quoting United States v. 

Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979))). During his trial, Tolentino had ample 

opportunity to cross-examine both Arcila and his supervisor regarding the informant‟s 

incentives and motivations. Hence, it is not our place to question the jury‟s finding that 

Arcila‟s testimony was credible. 

Tolentino‟s contention that the government acted outrageously by not supervising 

its informant is also without merit. We have held that a lack of informant supervision 

does not constitute outrageous conduct. See Christie, 624 F.3d at 564-565 (holding that 

the government does not act outrageously in its supervision of a confidential informant 

even if that informant violates federal law by running a child pornography website).

Arcila‟s supervisor testified, moreover, that the informant reported back “constantly” 

with status updates. App. 00055. He testified also that he was aware of Arcila‟s contact 

with Tolentino since the “beginning part of the summer of 2007.” Id. Although the lack 

of recordings during the first year-and-a-half of Arcila and Tolentino‟s acquaintanceship 

is troubling, as the District Court noted, the Appellant “points to no evidence showing 
7

that [Arcila] did anything more than provide Defendant with an opportunity to commit a 

crime.” App. 00428.

In United States v. Lakhani, 480 F.3d 171 (3d Cir. 2007), we held that a defendant 

had not met the rigorous standard of outrageous government conduct because he “used 

his own knowledge” of the illegal activity, and because “there [was] much to suggest” 

that the defendant was predisposed to criminal activity. Id. at 182. Unfortunately for 

Tolentino, his introduction of the confidential informant to “Willy,” someone the District 

Court found to be “clearly . . . involved in . . . the illegal business of importing drugs,” 

Supp. App. 458, established both that he used his own knowledge to further the drug 

trafficking conspiracy and suggests that he had a predisposition to commit the crime. 

Because Tolentino could not have met the requirements of the outrageous government 

conduct defense, the District Court did not err when it failed to raise it sua sponte during 

his trial.

* * * * *

We have considered all of the arguments advanced by the parties and conclude 

that no further discussion is necessary. The judgment of the District Court will be 

AFFIRMED.