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United States v. Rowell

United States District Court, D. Hawaii

January 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFERY ROWELL, aka “Jeffrey D. Rowell, ” aka “Jeffrey D. Stinnette, ” aka “Darnell Stinnette, ” Defendant.

          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 JUDGE.

         Pending 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.

         BACKGROUND

         On 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, [1] Rowell filed the Motion to Dismiss, Dkt. No. 45, which the Government has opposed, Dkt. No. 50.[2]

         On 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. No. 52.[3]

         On 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 decided concurrently.

         On 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.

         LEGAL STANDARD

         I. Motion to Dismiss

         To 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. (quotation omitted).

         II. Motion in Limine

         A court 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.

         DISCUSSION

         In United States v. Cortes, 757 F.3d 850 (9th Cir. 2014), the Ninth Circuit Court of Appeals provided the ...


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