Argued September 8, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 487--John J. Tharp, Jr., Judge.
For United States of America, Plaintiff - Appellee: Christopher J. Stetler, Attorney, Office of The United States Attorney, Chicago, IL.
For James Barta Defendant - Appellant: Joseph J. Duffy, Attorney, Corey B. Rubenstein, Attorney, Stetler, Duffy & Rotert, Ltd., Chicago, IL.
Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Defendant James Barta has appealed his conviction for conspiracy to commit bribery. He was charged and convicted based on an undercover government sting operation that evolved into an agreement among Barta and his co-defendants to bribe a fictional county official in California to obtain a government contract. We reverse because Barta was entrapped as a matter of law. We ordered his release from prison shortly after hearing argument in this case. This opinion provides the detailed explanation for that decision.
" Entrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government's agents and the government's conduct induced him to commit it." United States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc). There are two elements to the defense of entrapment: the defendant's lack of predisposition and the government's inducement. Here the government made the unusual but appropriate decision to concede that Barta was not predisposed to commit the charged crime. Predisposition is the " principal element in the defense of entrapment." United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). To overcome Barta's entrapment defense, therefore, the government was required to " prove beyond a reasonable doubt ... that there was no government inducement" in this case. Mayfield, 771 F.3d at 443. The government failed to do so.
Inducement " means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government's efforts." Id. at 434-35. Undisputed evidence shows that several " plus factors" signaling inducement were present in this case. In the course of its undercover operation the government employed " repeated attempts at persuasion." Id. at 435. It employed both " fraudulent representations" and " promises of reward beyond that inherent in the customary execution of the crime." Id. It also employed " pleas based on need, sympathy, or friendship." Id. The cumulative effect of these tactics directed at Barta amounted to inducement. Because Barta was induced and the government concedes that he was not predisposed, it follows that he was entrapped as a matter of law. We do not reach the other issues he raises on appeal.
I. Factual Background
Barta became a target of an FBI sting operation through his friendship with Gustavo Buenrostro. Buenrostro was in turn an associate of Ambrosio Medrano, and both are Barta's co-defendants in this conspiracy case. The story begins, though, before Buenrostro and later Barta came on the scene. Medrano had dealings with a man purporting to be a health care consultant named George Castro. Castro told Medrano he could, in return for payment of a bribe to a corrupt county official, obtain contract approval from Los Angeles County for the purchase of medical bandages by its hospital system. In reality the man purporting to be Castro was an undercover FBI agent and there was no corrupt official. But Medrano did not know this, of course, so he approached Castro about making another deal.
At that point, in late 2011, Medrano recruited Buenrostro to join him for this
second deal with Castro. For several months, Castro communicated only with Medrano and Buenrostro. The government had no contact with Barta before March 21, 2012, when Barta's co-defendants first introduced him to Castro. Though this FBI sting stretched out over many months, Barta spoke with Castro four times--in three meetings and one telephone call. These conversations occurred on March 21, May 9, June 12, and June 22. The details of these conversations and the events surrounding each conversation set the stage for the legal analysis below in Section II.
A. March 21 Meeting
The first thing Barta said to Castro at the March 21 meeting, after the two were introduced to each other, was " I'm not trying to sell you anything." Barta told Castro that he was at the meeting because of Buenrostro: " Gus asked me to come and tell you what we do." The " we" in that statement refers to Sav-Rx, which Barta described to Castro as a prescription benefit management business. Barta is a founder and owner of Sav-Rx, though he turned over much of the management of the company to his daughter in 2007. He told Castro that Sav-Rx provided prescription benefit management services primarily for unions, but also for the Cook County hospital system in Chicago.
Castro responded that while his company was not currently involved with pharmaceuticals, he could serve as a " broker" between companies and Los Angeles County because he knew " an individual in the country system." At different points in the meeting Castro described the payment he was seeking in return for the promised contract approval as a " finder's fee," " good faith money," and a " commission." To these various descriptions Barta replied that he understood what Castro was saying, and Barta closed the meeting by saying " I hope we can do some business." Barta spent just twelve minutes at this meeting.
A bit more background about the sting operation provides the context for the March 21 meeting. Medrano was introduced to Castro by a man named Michael DiFoggio, who was a cooperating witness working with the FBI as part of this sting operation. Before the March 21 meeting, DiFoggio repeatedly asked Medrano to send a written proposal for a deal between Sav-Rx and Los Angeles County in advance of the meeting. Medrano did not do so, and Barta himself never provided such a proposal, though he did give Castro some generic Sav-Rx brochures at their first meeting on March 21. DiFoggio also repeatedly asked Medrano for a cash payment from Barta to Castro. DiFoggio asked for this payment to be made at the March 21 meeting. It was not. DiFoggio then asked that the payment be made on May 9, the next time that Barta and Castro met. Barta made no payment at that meeting either.
Nothing in the previous paragraph should be taken to suggest that before the March 21 meeting DiFoggio directly asked Barta for anything. At that time DiFoggio was dealing only with Medrano and Buenrostro. It was they who told DiFoggio that Barta would be willing to provide a proposal and payment. Barta had ...