United States of Am., Appellant/cross-Appellee v. Michael Floyd Barth, Appellee/cross-Appellant, 990 F.2d 422 (8th Cir. 1993). · Go Syfert
United States of Am., Appellant/cross-Appellee v. Michael Floyd Barth, Appellee/cross-Appellant, 990 F.2d 422 (8th Cir. 1993). Cases Citing This Book View Copy Cite
Treatment trajectory · 1993 → 2026 · click a year to view as-of
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At page 424 Analyzing sentencing entrapment and downward departures50 citing cases“outrageous official conduct which overcomes the will of an individual predisposed only to dealing in small quantities' for the purpose of increasing the amount of drugs and the resulting sentence of the entrapped defendant.”5 citing courts quote it · 1 cautionary
  • United States v. Mark William Paul Staufer, 38 F.3d 1103 (9th Cir. 1994).published Cited "but see"
    “the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment”
  • State of Tennessee v. Jordan Thomas Peters - concurring, No. E2014-02322-CCA-R3-CD (Tenn. Crim. App. Nov. 5, 2015).published
    ([S]entencing entrapment [is] outrageous conduct which overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs and the resulting sentencing o…)
  • United States v. Robert John Michael Baber, 161 F.3d 531 (8th Cir. 1998).published
    (‘courts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties’)
  • United States v. Reginald A. Noble, 8 F.3d 822 (4th Cir. 1993).unpublished
    ([W]e hold that sentencing entrapment may be legally relied upon to depart under the sentencing guidelines, but factually was not present in this case....)
  • United States v. McLean, 199 F. Supp. 3d 926 (E.D. Pa. 2016).published 2 cites
    As stated by the Eighth Circuit in a decision from the early 1990s, “the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment.” United States v. Barth, 990 F.2d 422, 424 (8th Cir.1993).
  • United States v. Horacio Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013).published
    Its origin can be traced to the Eighth Circuit, which described the doctrine of sentencing entrapment as “outrageous official conduct [which] overcomes the will of an individual predisposed only to dealing in small quantities for the purpo…
  • People v. Claypool, 684 N.W.2d 278 (Mich. 2004).published
    See United States v. Lenfesty, 923 F.2d 1293, 1300 (C.A.8, 1991) ("We are not prepared to say there is no such animal as `sentencing entrapment.' *288 Where outrageous official conduct overcomes the will of an individual predisposed only t…
  • United States v. Abdul Majid Bala, Also Known as Sealed 2, Kantilal Patel, Also Known as Sealed 1, 236 F.3d 87 (2d Cir. 2000).published
    (recognizing that sentencing entrapment generally is a valid departure ground but not on facts of that case)
  • United States v. Adrian F. Searcy, 233 F.3d 1096 (8th Cir. 2000).published 6 cites
    United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) (internal quotations omitted).
  • United States v. Delaine F. Berg, 178 F.3d 976 (8th Cir. 1999).published 10 cites
    Id. at 424 (quotation omitted).
Show 40 more citing cases
At page 425 Evaluating government conduct in drug investigations and sentencing25 citing casesnoting that pagers are tools of the drug trade1 citing court put it this way · 22 listed here
  • Flowers v. City of Minneapolis, Minn., 558 F.3d 794 (8th Cir. 2009).published 2 cites
    We have recognized that “courts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.” United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993) (internal…
  • Leech v. State, 2003 OK CR 4, 66 P.3d 987.published 2 cites
    See United States v. Scavetti, 1999 WL 80368 (E.D.Pa.1999) (not for publication). [9] Searcy, 233 F.3d at 1099 ; United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993); Staufer, 38 F.3d at 1108 . [10] Sanchez, 138 F.3d at 1414 . [11] Wal…
  • United States v. Mitchell, 9 F. App'x 485 (6th Cir. 2001).unpublished
    He cited cases from other circuits recognizing sentencing entrapment or manipulation as a valid basis for downward departure, e.g., United States v. Staufer, 38 F.3d 1103, 1108 (9th Cir. 1994); United States v. Barth, 990 F.2d 422, 425 (8t…
  • United States v. Domingo Pena, No. 98-4656 (4th Cir. Apr. 27, 2000).unpublished
    (noting that pagers are tools of the drug trade)
  • United States v. Crawford, No. 98-7045 (10th Cir. Mar. 23, 1999).unpublished
    See id. ; see also, e.g. , Baker , 63 F.3d at 1500 ; United States v. Barth , 990 F.2d 422, 425 (8th Cir. 1993). -7- The judgment of the United States District Court for the Eastern District of Oklahoma is, therefore, AFFIRMED.
  • United States v. Anthony E. Anderson, 114 F.3d 1059 (10th Cir. 1997).published 2 cites
    (observing that a pager is a “tool of the drug trade)
  • United States v. Sage Appel, AKA Neal Evan Dry, 105 F.3d 667 (9th Cir. 1996).unpublished
    See United States v. Okey, 47 F.3d 238, 240 (7th Cir.1995) (rejecting defendant's claim of sentencing entrapment because he failed to show that government improperly prolonged investigation to increase his sentence); United States v. Barth…
  • United States v. James Turner, 93 F.3d 1422 (8th Cir. 1996).published 2 cites
    (repeated buys may be necessary to gain drug dealer's confidence)
  • United States v. Stephanie Cannon, Also Known as Stephanie Lynch, United States of Am. v. Keith Anthony Cannon, United States of Am. v. Stephanie Cannon, Also Known as Stephanie Lynch, United States of Am. v. Keith Anthony Cannon, 88 F.3d 1495 (8th Cir. 1996).published
    Further, we have noted that we " 'should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.' " United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993) (quot…
  • United States v. Stephanie Cannon, 88 F.3d 1495 (8th Cir. 1996).published 2 cites
    Further, we have noted that we “ ‘should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.’ ” United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993) (quot…
Show 12 more citing cases
  • United States v. Donald T. Atkinson, 85 F.3d 376 (8th Cir. 1996).published
    We note that in certain circumstances the Guidelines, U.S.S.G § 2D1.1, comment, (nn. 12 & 15) (Nov.1995), provide "[w]hen sentencing entrapment occurs, 'the sentencing court may deal with the situation by excluding the tainted transaction…
  • Jackson v. State, 914 S.W.2d 317 (Ark. Ct. App. 1996).published
    Indeed, our supreme court has held that possession of a large sum of money is relevant to the question of delivery of a controlled substance, see Pyle v. State, supra, and the Eighth Circuit Court of Appeals has recently stated that a page…
  • Commonwealth v. Garcia, 659 N.E.2d 741 (Mass. 1996).published 2 cites
    In order to pursue such work, an undercover officer must often develop a relationship of trust with a drug dealer by purchasing small quantities of narcotics over a long period of time. “[A]n established drug dealer will not readily sell l…
  • Elmer Velasquez v. United States, 48 F.3d 1222 (7th Cir. 1995).unpublished 2 cites
    See, e.g., United States v. Staufer, 38 F.3d 1003 (9th Cir.1994); United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993); United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.) ("we are not prepared to say there is no such animal as '…
  • United States v. Jerry Washington & Herbert Edward James, 44 F.3d 1271 (5th Cir. 1995).published 2 cites
    The Eighth Circuit appears to have adopted the theory, United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993), and the Eleventh Circuit has expressly rejected it, United States v. Williams, 954 F.2d 668, 672-73 (11th Cir.1993).
  • United States v. Mark Robert Merical, 32 F.3d 571 (8th Cir. 1994).unpublished
    See United States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993), cert. denied, 114 S. Ct. 1322 (1994); United States v. Barth, 990 F.2d 422, 425 (8th Cir. 1993). 7 Accordingly, the sentence imposed by the district court is affirmed. 1 The H…
  • United States v. Donald K. Shephard, 4 F.3d 647 (8th Cir. 1993).published
  • United States v. Gregory B. Bloomfield, Also Known as Earl Marcum Johnson, 24 F.3d 1043 (8th Cir. 1994).published
  • United States v. Gregory B. Bloomfield, Also Known as Earl Marcum Johnson, 40 F.3d 910 (8th Cir. 1994).published
  • United States v. Shawn Lamont Pettiford, 51 F.3d 269 (4th Cir. 1995).unpublished
  • United States v. Willie M. Aikens, 64 F.3d 372 (8th Cir. 1995).published
  • United States v. Donald Atkinson, No. 95-3504 (8th Cir. June 5, 1996).published
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellant/Cross-appellee,
v.
Michael Floyd BARTH, Appellee/Cross-appellant
92-2152, 92-2180.
Court of Appeals for the Eighth Circuit.
May 25, 1993.
Published opinion
990 F.2d 422
Jeffrey S. Paulsen, Minneapolis, MN, argued, for appellant/cross-appellee., Michael McGlennen, Minneapolis, MN, argued, for appellee/cross-appellant.
Arnold, Friedman, McMILLIAN, Morris, Sheppard.
Cited by 94 opinions  |  Published
McMILLIAN, Circuit Judge.

The United States appeals from the district court’s downward departure from the applicable sentencing guidelines range in sentencing Michael Floyd Barth. 18 U.S.C. § 3742(b). Barth was found guilty by a jury of six counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Barth was sentenced to 72 months imprisonment, four years of supervised release, and a special assessment of $350.00. Barth cross-appeals and argues the district court abused its discretion in denying his motion for a new trial on the basis of newly discovered evidence. For reasons discussed below, we affirm Barth’s conviction, but we vacate his sentence and remand for resen-tencing.

I.

Beginning in April 1991, Barth sold crack cocaine to undercover officer John Cich. The first sale was set up by a paid government informant named Charles “Chuckie” Smith; Smith introduced Barth to the undercover officer. Over a five-week period, Barth made seven sales of crack cocaine to the undercover officer. Barth was arrested after the seventh sale. Law enforcement officers searched his residence following his arrest and found 2.4 grams of crack cocaine and drug paraphernalia. Barth was charged with seven counts of distribution and one count of possession with intent to distribute crack cocaine.

Barth’s defense at trial was entrapment. He testified he had been introduced to crack cocaine by his friend Chuckie Smith, the government informant. Barth testified that he became a crack cocaine addict and sold crack for Smith in exchange for his own crack cocaine supplies. The government presented evidence that Barth was predisposed to distribute drugs — he used appropriate language and precautionary gestures and he was not hesitant to sell drugs. The government also disputed Barth’s claim of addiction, because he did not appear under the influence of drugs during the deals and no user paraphernalia was found in his residence. Barth was acquitted of the first distribution count, but convicted of the other counts.

In the presentence investigation report, the probation officer excluded the drugs involved in the first distribution count and calculated a total drug quantity of 50.4 grams on which Barth’s sentence would be based. The sentencing guideline range for 50.4 grams based on Barth’s total offense level of 30 and a criminal history category of I is 121 to 151 months, including a 10-year mandatory minimum penalty because the offense involved more than 50 grams of crack cocaine. 21 U.S.C. § 841(a)(1). At sentencing, the district court reduced the quantity to 49.8 grams because of a dispute over the quantity of crack cocaine involved in count 7. The government does not appeal the reduction of the total drug quantity to less than 50 grams. The guideline sentencing range for 49.8 grams of crack is 97 to 121 months based on a total offense level of 30 and a criminal history category[*424] of I, including a five-year mandatory minimum sentence for amounts from five to less than 50 grams. 21 U.S.C. § 841(b)(1)(B).

The district court departed downward pursuant to 18 U.S.C. § 3553(b), which allows the sentencing court to take into account a circumstance not adequately taken into consideration by the sentencing commission. The district court found “sentencing entrapment” and ruled that none of the drugs following the fourth undercover buy would count toward Barth’s sentence because, after that transaction, the investigatory objective was no longer focused on Barth but on his source. The district court found the sentencing commission failed to consider “the terrifying capacity for escalation of a defendant’s sentence based on the investigating officer’s determination of when to make an arrest.” United States v. Barth, 788 F.Supp. 1055, 1057 (D.Minn.1992). The district court stated it was “not at all fortuitous that the agent arrested [Barth] only after he had arranged enough successive buys to reach the magic number (referring to 50 grams, the quantity that triggers the application of the 10-year mandatory minimum sentence).” Id. In reaching its decision, the district court found the issue before it to be “whether or not the circumstances under which these transactions occurred constitute a mitigating factor for sentencing purposes,” and found that they did. Id. While noting that undercover investigations require “the orchestration of locations, timing, and methods of investigation,” the district court stated “[investigators] cannot be permitted to orchestrate a defendant’s sentence." Id. at 1058. The district court sentenced Barth to 72 months imprisonment, four years of supervised release, and a special assessment of $350.00.

II.

The government argues the district court had no authority to depart downward by arbitrarily disregarding the quantity of drugs involved in counts five through eight of which Barth was convicted. The government asserts there is no legal basis for the concept of sentencing entrapment, but argues that, even if there were, in the present case there was no outrageous conduct by the government.

Sentencing entrapment has' been described by this court as “ ‘outrageous official conduct [which] overcomes the will of an individual predisposed only to dealing in small quantities’ for the purpose of increasing the amount of drugs ... and the resulting sentence of the entrapped defendant.” United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir.1993), quoting United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991). Although courts have not generally adopted the concept of sentencing entrapment, the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment. See, e.g., United States v. Williams, 954 F.2d 668, 673 (11th Cir.1992) (rejecting the theory of sentence entrapment); United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992) (refusing to apply sentencing entrapment). This court has declined “to say there is no such animal as ‘sentencing entrapment,’ ” Lenfesty, 923 F.2d at 1300, yet has so far failed to apply sentencing entrapment. In United States v. Stuart, 923 F.2d 607, 613-14 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991), this court explained that adopting a sentencing entrapment theory would require us to “abandon [our] long-established rule of entrapment which focuses on the predisposition of the defendant to commit crime.”

This court has held that, in determining whether a departure is maintainable, we must consider several issues, including whether the circumstance relied upon in departing may be legally relied upon; whether, as a matter of fact, the circumstance is present in the record; and finally whether the magnitude of the departure is reasonable. United States v. Tucker, 986 F.2d 278, 279 (8th Cir.1993), citing United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990). Under our standard of review, we hold that sentencing entrapment may be legally relied upon[*425] to depart under the sentencing guidelines, but factually was not present in this case, making the district court’s departure unreasonable. While we are concerned with the government conduct in this case, Barth has failed to demonstrate that the government’s conduct was outrageous or that the undercover officer’s conduct overcame his predisposition to sell small quantities of crack cocaine. Barth argues he was introduced to crack by the government informant and was not predisposed to dealing crack cocaine. However, Barth’s predisposition was exhibited by his skillful methods of effecting drug deals — he used the appropriate language, he “palmed” [1] the crack to the undercover officer during the first transaction, he owned a pager — a tool of the drug trade, and he was sophisticated enough to use a “runner” [2] on one occasion.

Assuming for purposes of analysis that sentencing entrapment is a valid basis for downward departure under the sentencing guidelines, we do not agree with the district court that the undercover officer continued to purchase drugs merely to enhance Barth’s potential sentence. As noted in United States v. Calva, 979 F.2d 119, 123 (8th Cir.1992), the sentencing guidelines’ “mechanism of boosting sentences based on the cumulation of additional drug sales has the potential for abuse by police;” however, the present case is not such a case. The undercover officer arranged buys from Barth according to standard undercover procedure. The government’s evidence showed that an established drug dealer will not readily sell large quantities of drugs to a new customer and that repeated buys are necessary to gain the dealer’s confidence. Moreover, the fact that the undercover officer was a sheriff’s deputy in a state where the threshold for invoking the most serious penalty is ten grams of crack strongly suggests that triggering the 50-gram threshold was not a motivating factor in continuing the investigation. Based on these considerations, we agree with the advice given in United States v. Connell that “courts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.” 960 F.2d at 196. [3]

We do not attempt to determine in the abstract what is permissible and impermissible conduct on the part of government agents. We share the confidence of the First Circuit that when a sufficiently egregious case arises, the sentencing court may deal with the situation by excluding the tainted transaction or departing from the sentencing guidelines. Id. While recognizing that sentencing entrapment may occur, we hold the record in the present case does not support the existence of sentencing entrapment and vacate the sentence and remand for resentencing.

III.

Barth cross-appeals and argues the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence. We hold the district court did not abuse its discretion in denying Barth’s motion for a new trial. Following the trial, Chuckie Smith, the government informant, signed a statement that he had involved Barth in drugs. This affidavit tended to corroborate Barth’s entrapment defense theory; however, the[*426] government produced a counter-affidavit in which Smith recanted his first statement, claiming the first affidavit had been the product of harassment by Barth who at that time was not in custody.

IV.

Accordingly, Barth’s conviction is affirmed but his sentence is vacated and the case remanded to the district court for re-sentencing.

1

. "Palming" is a method of transferring drugs during a handshake. It requires experience to be able to smoothly "palm” drugs without being noticed.

2

. A “runner” is one who serves to distract police by fleeing on foot if the dealer’s car is stopped.

3

. While the government acknowledges the potential for improperly inflating sentences by delaying arrests, it argues that two checks in undercover operations provide adequate safeguards. First, an undercover officer who buys drugs from a dealer is aware the dealer has other customers he or she is supplying. Because the ultimate law enforcement goal is to get drug dealers off the streets, law enforcement agents have a strong incentive not to delay an arrest. Second, law enforcement agencies have limited resources and it is unlikely that an officer would make excessive purchases because the officer must account for every dollar expended to apprehend drug dealers. The government warns that adopting a sentencing enhancement theory would seriously hamper law enforcement efforts by unduly' rewarding those drug dealers who are savvy enough to "go slow” with new customers.