Case 3:07-cr-00289-M Document 988 Filed 09/20/2009 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA § ECF

§
v. § No. 3:07-CR-289-M
§
D’ANGELO LEE (02) §

GOVERNMENT’S RESPONSE IN OPPOSITION

TO LEE’S REQUEST FOR AN ENTRAPMENT JURY INSTRUCTION

Lee seeks to have the jury instructed on the defense of entrapment. Lee is entitled

to no such instruction and the government objects to inclusion in the jury charge of any

instruction related to the entrapment of Lee.

“Entrapment operates through a burden shifting regime. The defendant must first

make out a prima facie case that the government’s conduct created a substantial risk

entrapment. This requires the defendant to make a prima facie showing of (1) his lack of

predisposition to commit the offense and (2) some governmental involvement or

inducement more substantial than simply providing opportunities or facilities to commit

the offense.” United States v. Theagene, 565 F.3d 911, 918 (5 th Cir. 2009)(internal

citations and quotations omitted). A defendant who meets this burden is entitled to the

entrapment instruction and the government must prove beyond a reasonable doubt that the

defendant was predisposed to commit the offense before the government approached him.

Id. (Citations omitted).

Lee fails to make a prima facie showing as to either requirement. Regarding Lee’s

lack of predisposition to commit the offense of extortion, there is simply no evidence

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from any source, certainly from Lee, that would indicate his lack of predisposition to

engage in extortion. The facts presented by the government clearly show the opposite.

Lee fails to realize that Fisher went the FBI because Fisher was being extorted by Lee.

Fisher was the victim of Lee, Hill and Reagan’s conduct before Fisher ever went to the

FBI and before Fisher ever began working with the FBI.

The record is certainly not void of evidence relative to Lee’s predisposition to seek

and demand things of value from tax credit affordable housing developers – it just proves

the opposite of what is required in the first prong – that Lee was in fact predisposed to

commit the offense in question.

Well before the end of November 2004, when Fisher began cooperating with

authorities, Lee had already been involved in nearly identical conduct with Brian

Potashnik. The difference between Potashnik and Fisher is that Potashnik agreed to pay

while Fisher went to the FBI. There is a total failure on the part of Lee to make the

necessary showing on the first prong.1 Lee was also intricately involved in an elaborate

money laundering scheme designed to cover the bribe payments made by Potashnik.

Lee cannot meet his burden on the second prong either. While Lee is quick to

criticize the actions of Bill Fisher and the FBI here, he again fails to realize that his

conduct started well before Fisher went to the authorities. Lee also ignores the fact that

1
Lee continues his predisposition to engage in bribery, extortion and self dealing in 2005 in at
least three other areas: (1) by marrying an official support letter from the City of Dallas for Herb
Frison’s development to Herb Frison signing a construction management contract with LCG; (2) by
attempting to require Richard Pace to sign a construction management contract with LCG and then later
attempted to charge Pace $2,500.00 a month through the zoning process on a Pace development; and (3)
threatening to use code enforcement against Stanley Spiegel in connection with the sale of the Lancaster-
Kiest Shopping Center.
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he searched Fisher for recording equipment on two occasions. True, Fisher’s words to

Lee were explicit and criminal, but they weren’t designed to induce Lee to engage in

conduct he wouldn’t otherwise engage in. The statements were designed to give Lee the

opportunity to walk away or call the authorities - neither of which he did.

Regarding inducement by the government, “[i]t does not constitute entrapment for

government agents to merely conduct undercover operations or otherwise employ artifice

and stratagem to catch criminals. Nonetheless, courts have identified inducement when

government agents harass or threaten a defendant, or take actions designed specifically to

take advantage of the defendant’s weaknesses. Inducement appears where there is some

governmental involvement and inducement more substantial than simply providing an

opportunity or facilities to commit the offense.” Id. at 922 (internal citations and

quotations omitted).

In United States v. Gendron, 18 F.3d. 955, 961-962 (1 st Cir. 1994), the court listed

some examples of improper inducement which supported a basis for sending the

entrapment issue to the jury. Those case specific examples of when an entrapment

instruction is appropriate are situations where the government:

(1) used “intimidation” and “threats” against a defendant's family, United

States v. Becerra, 992 F.2d 960, 963 (9th Cir.1993); (2) called every day,
“began threatening” the defendant, and were belligerent, United States v.
Groll, 992 F.2d 755, 759 (7th Cir.1993); (3) engaged in “forceful”
solicitation and “dogged insistence until [defendant] capitulated,”
Rodriguez, 858 F.2d at 815; (4) played upon defendant's sympathy for
informant's common narcotics experience and withdrawal symptoms,
Sherman, 356 U.S. at 373, 78 S.Ct. at 821; (5) played upon sentiment of
“one former war buddy ... for another” to get liquor (during prohibition),
Sorrells, 287 U.S. at 440-41, 53 S.Ct. at 212; (6) used “repeated
suggestions” which succeeded only when defendant had lost his job and
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needed money for his family's food and rent, United States v. Kessee, 992
F.2d 1001, 1003 (9th Cir.1993); (7) told *962 defendant that she (the agent)
was suicidal and in desperate need of money, United States v. Sullivan, 919
F.2d 1403, 1419 & n. 21 (10th Cir.1990).

Id.

As numerous cases have noted through the years, the district court should be on the

lookout for traps set for the “unwary innocent” versus traps sets for the “unwary

criminal.” Lee was not the “unwary innocent” in November of 2004. He was, in fact, the

opposite - a wary criminal.

The government’s conduct here merely provided Lee with the opportunity to

continue his ongoing criminal conduct regarding demands made upon developers. The

court should not instruct this jury on entrapment.

Respectfully submitted,

JAMES T. JACKS
UNITED STATES ATTORNEY

/s/ Chad E. Meacham

Chad E. Meacham
Assistant United States Attorney
Texas State Bar No. 00784584
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Telephone: 214.659.8716
Facsimile: 214.659.8727
Email: chad.meacham@usdoj.gov

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Certificate of Service

I hereby certify that on September 20, 2009, I electronically filed the foregoing
document with the clerk of court for the U.S. District Court, Northern District of Texas,
using the electronic case filing system of the court. The electronic case filing system sent
a “Notice of Electronic Filing” to all attorneys of record who have consented in writing to
accept this Notice as service of this document by electronic means.

I hereby certify that I have served the foregoing document by mailing a copy to the
following individuals: N/A

s/ Chad E. Meacham
Chad E. Meacham
Assistant United States Attorney

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