Sunday, July 31, 2011

Case o' The Week: Real Loss for Fake Stash House Defense - Spentz and Entrapment

Believe in a fake six foot rabbit and you get sent to the psych ward.

Believe in a fake stash house and you get years in federal prison. United States v. Spentz, 2011 WL 3195708 (9th Cir. July 28, 2011), decision available here.

Decision by Judge Clifton, joined by Judges Wallace and Fernandez.

Facts: ATF set up a functioning tattoo shop to catch “violent criminals” by offering opportunities to commit crime. Id. at *1. Spentz and others came into the shop and met an undercover ATF agent, pretending to be a disgruntled drug courier. Id. The agent proposed that he, Spentz, and other men rob a stash house in which was stored $2.5 million worth of cocaine. Id. The agent warned the men the house was typically protected by two guards, one of them armed. Id.

No such stash house actually existed.

The agent, Spentz, and other defendants rendezvoused for the (fake) robbery, were promptly arrested, and then tried for a bevy of crimes including 18 USC § 1951(a), conspiracy to interfere with commerce through robbery, 21 USC § 846, conspiracy to possess with intent to distribute cocaine [which, by the way, didn’t exist], and § 924(c), use of a gun in the furtherance of another felony. Id.

The district court rejected the defense request for an entrapment instruction, holding there was insufficient evidence to merit the instruction and the instruction was inconsistent with the alternative defense strategy of claiming innocence. Id. at *2. The defendants were convicted. Id.

Issue(s): “This appeal presents the issue as to when, in a criminal trial, a district court must give the jury instructions requested by a defendant regarding an entrapment defense . . . . Defendants argue that the district court erred in refusing to provide an entrapment instruction to the jury.” Id. at *1.

Held: “There was . . . insufficient evidence presented at trial to support a finding by the jury that defendants were induced by the government to commit the crimes, one of the two necessary elements of an entrapment defense. As a result, we conclude that the district court did not err by refusing to give the entrapment instruction, and we affirm.” Id. at *1.

Of Note: To earn the entrapment defense, there must be evidence of inducement of inducement “plus something else – typically excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, non-criminal type of motive.” Id. at *3. In this case, the defense argued that the motive offered by the undercover agent was so overwhelming – $2.5 million at stake – and the risk so minor, that this incentive met the “something else” prong of inducement. Id. Judge Clifton is unpersuaded: “When the motivation presented by the government is the typical benefit from engaging in the proposed criminal act, there is no reason to be concerned that an innocent person is being entrapped.” Id. Spentz is a blow to one of the few hoped-for defenses in these hated fake stash-house cases, and foreshadows a grim future of fake federal crimes with huge promised fake payoffs used to lure our very real clients into an easy prosecution.

How to Use: A silver lining, if there is one, is that the Court in Spentz rejects one basis relied upon by the district court in refusing to give the entrapment instruction requested by the defense. “[A] criminal defendant may assert innocence and, in the alternative, entrapment.” Id. at *3 & n.2. Moreover, a defendant can assert an entrapment defense based solely on evidence arising from the government’s case. Id.

How, exactly, the defense can credibly run alternative theories of entrapment and straight innocence isn’t exactly clear from the opinion – but worth noting that it is at least theoretically possible.

For Further Reading: Spentz is not the only defendant snared in the Las Vegas fake tattoo parlor scheme run by ATF. The Nevada USAO boasts of a number of other convictions arising out ATF’s “Hustler’s” tattoo shop, with sentences up to fifteen years for real prosecutions of attempted robberies of fake stash houses. See press release here.

A number of federal districts (including the ND Cal) are plagued with these bureaucratically-created criminal conspiracies spawned by ATF – and while the agency has been busy inventing fake stash houses, it has simultaneously allowed a known criminal network funnel thousand of assault weapons to Mexican drug cartels (including weapons found where a Border agent was killed in 2010). See NYT article here.

Image of Harvey and James Stewart, and movie poster, from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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