United States v. Harris, 2021 WL 3485907 (11th Cir. 2021)
The FBI created a reverse sting operation to catch corrupt Miami Police Department officers in which a few FBI agents posed as drug dealers. Agents focused on Miami Police Officer Catina Anderson. Eventually, Anderson agreed to act as a confidential informant (CI) and wear a recording device.
Anderson identified fellow Miami Officer Schonton Harris as having previously taken bribes. FBI agents directed Anderson to approach Schonton about providing protection for the delivery of drug proceeds purportedly belonging to drug dealers. Anderson told Schonton her cousin needed protection in delivering drug money to a bank, while carrying Percocet pills in his car. Schonton accepted Anderson’s offer and took part in four protection operations.
Anderson explained to Schonton that the drug trafficking organization was growing and needed to recruit more corrupt cops. Schonton suggested they talk to another Miami officer, Kelvin Harris, who joined the group, initially serving as a lookout while the undercover “drug dealer” deposited drug proceeds at a local bank. Anderson paid Kelvin $1,000 for protecting the dealer the day before.
Anderson introduced Schonton to another undercover FBI agent, “Moe.” Moe claimed to be a high-level member of an East Coast major league cocaine trafficking organization. Moe explained the organization was expanding and needed to move several kilos of cocaine per car to several locations at the same time, so he needed “an army of people” for protection. Moe stressed he would only work with people he could trust. Schonton agreed to be “in charge” and told Moe that Kelvin could be trusted.
When Schonton and Anderson asked Kelvin if he was interested in protecting couriers transporting cocaine, or if he wanted to protect drug money deposits, Kelvin agreed to work for Moe in cocaine operations. Schonton recruited another MPD officer, James Archibald, who was “all in.” Schonton and Kelvin escorted an FBI undercover “dealer” moving cocaine from a bus station to a Miami hotel.
A few days later, Archibald, Anderson, Schonton and Kelvin met with Moe to discuss two 20-kilogram cocaine shipments. The four officers met the “dealers” at a Miami bus station. Kelvin and Anderson escorted one dealer to a hotel, using lights and siren. Archibald and Schonton accompanied the other dealer to a different hotel. Later that night, Archibald and Kelvin met Moe. Moe paid each of them $2,500 in cash for their help. Moe told them they had helped move 40 kilograms of cocaine that day and it was important that he know he could trust them in future operations.
Moe explained: “And so moving forward, I wanna make sure ya’ll are onboard and ya’ll are part of the family. If you’re not part of the family, or not gonna be onboard with making sure this weight gets moved around and this powder gets moved around, then let me know. Forget you ever met me.” Archibald and Kelvin told Moe they wanted to continue.
The FBI arranged another sting operation, but one in which the officers would actually pick up a large load of cocaine at a local marina and deliver it to two separate locations in Miami. The operation was characterized as the “next step.” Later that evening, Moe paid Schonton, Anderson, and Kelvin each $4,000 in cash and gave Anderson $4,000 for Archibald.
A few days later Archibald, Kelvin, and Schonton were arrested. Schonton pled guilty to conspiracy to possess with intent to distribute cocaine. Anderson (the CI Miami PD officer) pled guilty to extortion in another matter. Kelvin and Archibald opted for trial.
“Predisposition is a fact-intensive and subjective inquiry, requiring the jury to consider the defendant’s readiness and willingness to engage in the charged crime absent any contact with the government’s agents”
Both Kelvin and Archibald were convicted of conspiracy to possess with intent to distribute cocaine, attempted possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime. Each claimed to have been entrapped by the undercover FBI agents. The jury didn’t agree. Archibald appealed, arguing the jury got it wrong on his claim of an entrapment defense.
Entrapment is an affirmative defense that is considered in two stages of the trial process. When a defendant claims entrapment, the judge first considers whether the defendant has produced sufficient evidence that government agents “induced” the defendant to commit the crime. If the judge rules the defendant has met this burden, the defendant is entitled to present a defense theory of entrapment to the jury and to have a jury instruction on entrapment. If the judge finds there is sufficient evidence of inducement to commit the crime, the burden shifts to the prosecution to show the defendant’s “predisposition to commit the crime beyond a reasonable doubt.”
“Predisposition is a fact-intensive and subjective inquiry, requiring the jury to consider the defendant’s readiness and willingness to engage in the charged crime absent any contact with the government’s agents” (United States v. Rutgerson, 822 F.3d 1223 (11th Cir. 2016)). 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 (1988)). Courts have listed several non-exclusive factors to consider in weighing whether the defendant was predisposed to commit the crime. These factors include how readily the defendant committed or agreed to commit the crime, whether the defendant was given opportunities to back out of crime but chose not to, the defendant’s post-crime statements, and the jury’s assessment of the defendant’s demeanor and credibility at trial.
Archibald faced a mountain of evidence that he willingly engaged in the drug trafficking operation. Foremost, Archibald accepted the money-making opportunity Schonton offered to him. Archibald admitted none of the other officers forced him to participate. Archibald also had many opportunities to walk away from criminal involvement, but he never did. Archibald’s post-crime conduct also indicated predisposition. He conferred with Anderson and Schonton about how to avoid being caught. He warned that, if problems ever arose, the officers would cut their ties. When Anderson said no one even knew their names, Archibald said, “Yeah. Keep it like that.” Archibald laughingly affirmed that the officers had earned the traffickers’ trust by laying hands on the (fake) bricks of cocaine.
The appellate court held the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that Archibald was predisposed to take part in the crimes for which he was convicted. The court rejected several other claims and affirmed both former officers’ convictions. Kelvin was sentenced to 27 ½ years and Archibald was sentenced to 10 years in prison.
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