United States District Court, D. Hawaii
ORDER (1) DENYING DEFENDANT JEFFREY ROWELL'S
MOTION TO DISMISS, AND (2) GRANTING THE UNITED STATES OF
AMERICA'S MOTION IN LIMINE TO PRECLUDE USE OF AN
ENTRAPMENT DEFENSE WITHOUT PREJUDICE
DERRICK K. WATSON, UNITED STATES DISTRICT
before the Court are, among other things, Defendant Jeffrey
Rowell's Motion to Dismiss, Dkt. No. 45, and Plaintiff
the United States of America's Motion in Limine to
Preclude Use of the Entrapment Defense (“the Motion in
Limine”), Dkt. No. 62. Both motions, either principally
or in toto, concern the propriety of an entrapment defense in
this case. Having reviewed the parties' papers, the
record, and the relevant legal authorities, the Court DENIES
the Motion to Dismiss and GRANTS the Motion in Limine without
prejudice to Defendant requesting a jury instruction on
entrapment at trial should the evidence presented support
such a defense.
August 22, 2018, Rowell was charged in a one-count indictment
with distributing cocaine within 1, 000 feet of Aala Park, a
playground, on June 13, 2018. Dkt. No. 1. On December 7,
2018, while pro se,  Rowell filed the Motion to Dismiss, Dkt.
No. 45, which the Government has opposed, Dkt. No.
December 19, 2018, the grand jury returned a superseding
indictment against Rowell, charging him with two offenses:
(1) distributing cocaine within 1, 000 feet of Aala Park on
June 13, 2018; and (2) possessing with the intent to
distribute 5 grams or more of methamphetamine, its salts,
isomers, and salts of its isomers on August 28, 2018. Dkt.
January 8, 2019, the Court held a hearing on the Motion to
Dismiss. Dkt. No. 60. At the conclusion of the hearing, the
Court took the Motion to Dismiss under advisement but invited
both sides to file supplemental materials by January 11,
2019. In addition, after the Government indicated at the
hearing that it might file a motion in limine specific to the
entrapment defense that would overlap with one of the
arguments presented in the Motion to Dismiss, the Court
advised that a briefing schedule would be promptly set upon
the filing of that motion so that both motions could be
January 11, 2019, the Government filed the Motion in Limine.
Dkt. No. 62. On the same day, the Government filed a
supplemental response to the Motion to Dismiss, attaching,
among other things, video and audio CDs relating to Count One
of the superseding indictment. Dkt. Nos. 61, 61-2, 61-3.
Although the Court directed Defendant to file a response to
the Motion in Limine by January 16, 2019, Dkt. No. 64, no
response has been filed.
Motion to Dismiss
succeed on a motion to dismiss that is based on entrapment, a
defendant must show that he is entitled to such a defense as
a matter of law. United States v. Schafer, 625 F.3d
629, 636-637 (9th Cir. 2010). There is no such entitlement
when there are “definite conflicts” in the
evidence. See id. at 637 (quotation omitted)
(mentioning conflicts in testimony on the issue of how the
defendant began selling drugs). That is because any such
conflicts must be resolved by the jury. Id.
Motion in Limine
may preclude a defense “if the defendant fails to make
a prima facie showing that he is eligible for the
defense.” Id. However, “[o]nly slight
evidence will create the factual issue necessary to get the
[entrapment] defense to the jury.” United States v.
Becerra, 992 F.2d 960, 963 (9th Cir. 1993) (quotation
and internal quotation omitted). That is true even where
“the evidence is weak, insufficient, inconsistent, or
of doubtful credibility.” Id.
United States v. Cortes, 757 F.3d 850 (9th Cir.
2014), the Ninth Circuit Court of Appeals provided the