UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4587

DANIEL JOSEPH BRENNAN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-96-340)

Submitted: August 25, 1998

Decided: September 24, 1998

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randolph Stuart Sergent, VENABLE, BAETJER & HOWARD,

L.L.P., Baltimore, Maryland, for Appellant. Lynne A. Battaglia,

United States Attorney, Maury S. Epner, Assistant United States

Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Daniel Joseph Brennan was convicted by a jury of attempted bank

robbery in violation of 18 U.S.C. § 2113(a) (1994), and soliciting others to commit an armed robbery of an armored car in violation of 18

U.S.C. § 373(a) (1994). The district court sentenced Brennan to

thirty-seven months' imprisonment. Brennan now appeals both his

conviction and sentence. However, finding no error, we affirm.

Federal authorities began their investigation of Brennan after Stephen Passero, Brennan's godson, informed them that Brennan solicited his help in a plan to rob an armored car. According to Passero,

the plan actually involved two robberies: (1) a preliminary robbery of

a commercial establishment, which Brennan claimed would finance

the purchase of bulletproof vests, walkie talkies, scanners, and guns

and (2) the armored car robbery. Passero also informed authorities

Brennan advocated enlistment of a third party for help in these robberies.

Based on this information, FBI agent Alan Carrol arranged with

Passero to be recommended to Brennan for this third position in the

"conspiracy." In addition, Carrol communicated through Passero his

suggestion of a subject for the preliminary robbery: a bank in New

Carrolton, Maryland. Brennan eventually accepted both Carrol and

his suggestion, and the three men agreed to rob the bank. Thereafter,

Brennan, Carrol, and Passero "cased" both the bank and armored car

locations and stole a car for use in robbing the bank.

However, before the robbery of the bank could be carried out, FBI

agents arrested Brennan. Following his arrest, Brennan confessed to

his role in both the initial steps of the robbery of the bank and in the

plan to rob the armored car. As a result of this confession, Brennan

was indicted for attempting the robbery of the bank and for soliciting

others to aid in the robbery of the armored car.

During trial in the district court, there were two occurrences relevant to this appeal. First, during direct examination by the Govern-

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ment, Passero testified about an alleged "falling out" between himself

and Brennan. According to the Government, this testimony was elicited in order to establish Passero's motive in collaborating with the FBI,1

and the record indicates that no details of this"falling out" were

sought. However, on cross-examination, Brennan's counsel asked

Passero about an affidavit Passero signed stating that an attack by

Brennan, allegedly the cause of this "falling out," never occurred.

Therefore, on redirect examination, the Government asked Passero

about details of the attack, which Passero provided, going so far as

to point out the place on his body where he was allegedly shot by

Brennan.

Second, at the close of trial, the district court denied Brennan's

request for a jury instruction on entrapment. The court based this

decision on its determination that Brennan had not produced evidence

sufficient to warrant such an instruction.

Brennan was found guilty of both charges contained in the indictment against him, and the district court sentenced him to thirty-seven

months' imprisonment. In so doing, the district court denied Brennan's request for a downward departure under the Sentencing Guidelines for physical impairment. This appeal followed.

In this appeal, Brennan alleges three errors by the district court:

two regarding trial and one regarding sentencing. We consider each

in turn.

First, Brennan argues that the court erred in allowing Passero to

describe Brennan's alleged attack on him and to point out the location

of the wound he allegedly received in that attack. Brennan contends

that this evidence was irrelevant, prejudicial, and not admissible

under the Federal Rules of Evidence. The Government concedes that,

standing alone, the testimony is not admissible under the Rules,2 but

argues that it was nevertheless properly admitted because Brennan

"opened the door" to the question of whether he attacked Passero. We

agree.

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1 See Appellee's Br. at 22.

2 Id.

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In determining whether Brennan's counsel's cross-examination of

Passero "opened the door" to the Government's questions regarding

the details of the alleged attack, we find our holding in United States

v. Barber instructive.3 In Barber, a criminal defendant testified on

direct examination that "had he been afforded the opportunity," he

would have given a statement to prosecutors regarding the charges

against him before he was indicted.4 As a result of this testimony, we

held that the defendant "opened the door" to cross-examination by the

Government on the subject of the defendant's exercise of his Fifth

Amendment privilege against self-incrimination before the grand jury

--a matter indisputably off-limits to prosecutors in all but exceptional

circumstances.5

Further, we are mindful of our more recent holding in United States

v. Williams.6 In that case, counsel for a defendant charged with distributing drugs cross-examined a DEA agent as to whether the agent

had "personal knowledge" of the defendant's dealings with an

informant.7 We held that this"opened the door" to a redirect question

regarding the informant's out-of-court statement that he had purchased drugs from the defendant.

In the instant case, we are satisfied that defense counsel's questions

about the affidavit regarding the alleged attack"opened the door" to

Passero's testimony. As in Barber, the Government avoided detailed

inquiry into the inadmissible evidence8 until Brennan's counsel put

the subject of that evidence--whether an attack actually occurred--at

issue through detailed questions about the facts upon which the affidavit was based.9 Thereafter, the sort of clarification-oriented redirect

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3 668 F.2d 778 (4th Cir. 1982).

4 United States v. Barber, 668 F.2d 778, 785 (4th Cir. 1982).

5 See id.

6 106 F.3d 1173 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.

3257 (U.S. Oct. 6, 1997) (No. 96-9412).

7 See id. at 1177.

8 See J.A. at 23 (in examining Passero, the Government asked,

"[w]ithout getting into specifics, Mr. Passero what happened to change

that relationship [with Brennan])?"

9 Id. at 97-99.

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allowed in Williams was proper. Thus, we find no abuse of discretion

in the district court's decision to admit this testimony. Accordingly,

we decline to disturb Brennan's conviction on this ground.

We are also unpersuaded by Brennan's contention that the district

court erred in denying his request for a jury instruction on entrapment.

As we explained in United States v. Singh,10 "[i]n order to receive an

entrapment defense instruction, the defendant must produce `sufficient evidence from which a reasonable jury could find' that the government induced him to commit the charged offense."11 After a de

novo review of this issue,12 we agree with the district court's determination that Brennan failed to produce such evidence.

The affirmative defense of entrapment has two elements: (1) government inducement of the crime and (2) lack of predisposition on the

part of the defendant to engage in the criminal conduct.13 Thus, to

receive an entrapment instruction, a defendant must come forward

with evidence from which a reasonable jury could conclude that both

inducement by the Government and lack of predisposition on the part

of the defendant existed in a particular case. Here, the district court

based its denial of Brennan's request for an entrapment instruction on

Brennan's failure to come forward with evidence of a lack of predisposition to rob the bank.14 We agree.

Brennan argues that he made the decision to rob the bank only after

Carrol suggested it. This, Brennan contends, demonstrates that he was

not disposed to rob a bank until after the Government had become

involved. However, in making this argument, Brennan overlooks the

uncontroverted evidence that he was planning some type of robbery

to precede the robbery of the armored car well before Passero

informed the Government of the plan. Indeed, this was part of the

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10 54 F.3d 1182 (4th Cir. 1995).

11 Id. at 1189 (citations omitted).

12 See id.

13 See United States v. Lamarr, 75 F.3d 964, 974 (4th Cir.) (internal

quotations and citations omitted), cert. denied , ___ U.S. ___, 65

U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398).

14 See J.A. at 259.

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information that Passero took to the FBI and was the reason Carrol

suggested the bank as a potential target.

In addition, we have held that "inducement" is more than mere suggestion. Rather, it must be "conduct sufficiently excessive to implant

a criminal design in the mind of an otherwise innocent party."15 We

find no evidence of such behavior on the part of the Government in

this case.

We therefore agree with the district court's determination that

Brennan failed to provide evidence sufficient to warrant an entrapment instruction. Accordingly, we will not disturb his conviction on

this ground.

Finally, Brennan argues that the district court erred in denying his

request for a downward departure under USSG § 5H1.4.16 Brennan

states that this decision was based on the district court's "legal conclusion" that it lacked the authority to make this departure.17 However, as the Government notes, the district court clearly considered

the departure as being within its discretion, but declined to grant it

because Brennan's "primary physical problems appear to be chronic

alcoholism . . . [and] that the Bureau of Prisons would be and is capable of caring for Mr. Brennan's medical problems."18

Thus, we are satisfied that the district court exercised its discretion

under § 5H1.4 and that Brennan presents no evidence that it abused

that discretion. Accordingly, we affirm the district court's decision to

deny the requested downward departure.

Based on the foregoing, we affirm Brennan's conviction and sentence. We deny Brennan's motion to expedite this appeal. We dis-

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15 United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993) (citation

omitted).

16 U.S. Sentencing Guidelines Manual (1995).

17 See Appellant's Br. at 35-36. Brennan contends that the district court

determined that it could not make the requested departure because it was

of the opinion that Brennan's poor health was the result of alcohol use.

18 J.A. at 467.

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pense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid in the decisional process.

AFFIRMED

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