In United States v. Harris, No. 19-13692 (Aug. 9, 2021) (Jill Pryor, Newsom, Marcus), the Court affirmed the defendants’ drug and firearm convictions stemming from a reverse sting police corruption investigation.
First, there was sufficient evidence to support the defendants’ convictions based on the evidence at trial.
Second, while there was sufficient defense evidence of inducement to permit an entrapment defense to go to the jury, there was nonetheless sufficient evidence that the defendant was predisposed to take part in the conspiracy. In addition, the defendant challenge the court’s response to the jury’s question about whether the definition of entrapment applied to each count or if it was a single determination. The court responded that the jury should consider each crime and the evidence relating to each separately. That was not an abuse of discretion because the evidence of predisposition was not the same for each count.
Third, the defendant was not entitled to a duress instruction because he did not show that he had no reasonable opportunity to escape or inform the police.
Fourth, the district court did not abuse by dismissing the indictment sua sponte based on prosecutorial misconduct because the prosecutor did not knowingly used perjured testimony or fail to correct material false testimony. The Court found no misconduct at all.
Fifth, with regard to the defendants’ Batson challenge, they failed to make a prima facie case of discrimination. The defendants argued only that the stricken jury was African American, and they did not believe there was any reason to disqualify him other than race. Those arguments alone, however, were insufficient to raise an inference of racial discrimination. The government only struck one African American out of the seven peremptory challenges, it made no objection to the other three African Americans on the panel, and the final jury included two African American jurors. In any event, there was no error in the district court’s ultimate determination that the defendants failed to establish that the government’s race-neutral reason was pretextual.
Sixth, the prosecutor did not improperly shift the burden of proof or commit misconduct at closing.
Finally, the district court did not commit plain error by failing to sua sponte advise the jury that a read-back of trial testimony was available because there was no precedential decision so holding. Nor did the defendant show any prejudice from the failure.