United States of America v. Cromitie (Williams)

Filing

OPINION, Concurring & Dissenting, by judge DJ, FILED.[1024139] [11-2763, 11-2884, 11-2900, 11-3785]

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DENNIS JACOBS, Chief Judge, concurring in part and

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dissenting in part:

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I concur as to the affirmance of the convictions of

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David Williams, Onta Williams, and Laguerre Payen, and I

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concur in the majority’s rejection of any argument premised

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on outrageous government misconduct, and its rejection of

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other defense arguments.

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because James Cromitie was entrapped as a matter of law.

I respectfully dissent in part

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I

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As to entrapment, it is common ground on this panel

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that the government induced Cromitie to commit the terrorist

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crimes charged, and that it became the government’s burden

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to prove beyond a reasonable doubt that Cromitie was

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“predisposed” to commit them.

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236 F.3d 87, 94 (2d Cir. 2000) (“[If] a defendant presents

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credible evidence of government inducement, then the

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prosecutor must show predisposition beyond a reasonable

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doubt.”).

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three things: “(1) an existing course of criminal conduct

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similar to the crime for which the defendant is charged, (2)

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an already formed design on the part of the accused to

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commit the crime for which he is charged, or (3) a

See United States v. Bala,

The government had to do that by proving any of

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willingness to commit the crime for which he is charged as

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evidenced by the accused’s ready response to the

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inducement.”

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101-02 (2d Cir. 2003) (internal quotation marks and

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alteration omitted).

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background, and since the government informant enlisted him

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only after a dogged and year-long campaign of nagging,

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pursuit, and temptation (with money, a business, and a

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Mercedes-Benz), this panel is in agreement that the

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government had to prove an “already formed design.”

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United States v. Brunshtein, 344 F.3d 91,

Since Cromitie had no similar criminal

In my view, there was no evidence of an “already formed

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design.”

At the outset, Cromitie told of wanting to “do

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something to America” and “die like a martyr,” but this big

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talk does not amount to a design--to do what?--never mind

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one that was “already formed.”

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formed by the government, and fed to Cromitie.

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but he didn’t form it.

The design here was entirely
He liked it,

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II

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The term “already formed design” is defined away by the

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majority: it is “only a rather generalized idea or intent to

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inflict harm on” the interests of the United States.

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Op. at 25.

Maj.

That definition of the term is more its converse

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because an idea or intent does not amount to a design, and

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one that is “generalized” is unformed; the “generalized

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idea” of an act is not a disposition to do it; and

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entrapment is the very process of mobilizing a generalized

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idea that otherwise would remain an idle thought.

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majority opinion renders entrapment untenable as a defense.

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Unsurprisingly, the majority’s definition is incompatible

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with precedent.

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Thus the

“Formed design” is one of the three ways that the

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government may prove predisposition, as set out in United

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States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933) (Hand,

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J.): “an existing course of similar criminal conduct; the

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accused’s already formed design to commit the crime or

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similar crimes; [and] his willingness to do so, as evidenced

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by ready complaisance.”

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catalog was repeated in somewhat different words in United

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States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952) (Hand,

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J.): “The proof of [predisposition] may be by evidence of

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his past offences, of his preparation, even of his ready

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compliance.”1

Id. at 1008.

The same short

Id. (emphasis added) (internal quotation

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As the majority points out, Sherman used the word
“prepared” as well as the word “preparation”; the majority
argues that (given the common root of the words) Judge Hand
meant “prepared” in the same sense as he meant “preparation”
a few lines later. The two words are used in different
senses, to suit distinct contexts. The first, as the
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marks omitted).

So an “already formed design” is one

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sufficiently advanced that (before government solicitation)

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the defendant had already “prepar[ed]” to do the crime.

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Entertaining a “generalized idea” of a crime is several

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critical steps removed from preparing to commit it.

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design that is “already formed” has taken shape, and assumed

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parameters even if particulars remain open.

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already formed is not (as here) inchoate, undirected, and

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open to suggestion and revision in every respect.

A

A design

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The term “already formed design” takes meaning from its

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company, appearing in a series of three related ways to show

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predisposition: commission of the offense in the past, the

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ready willingness to do it then and there, or a formed

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design, which looks to the future.

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design matters only if it cannot be shown that the defendant

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had already done analogous acts or had given ready assent.

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The three can operate as alternatives only if they are

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understood to be of comparable predictive force.

Existence of a formed

There is

majority explains, conveys “the sense of being ready to
commit the offense once the opportunity is presented,” Maj.
Op. 26-27, which bears on whether Cromitie was “ready and
willing”; but proof of being “ready and willing” requires a
showing (beyond a reasonable doubt) of similar prior acts,
quick acceptance, or “preparation” in the sense of an
“already formed design.” The majority opinion thus
conflates predisposition (“ready and willing”) with a way of
proving predisposition (an “already formed design”).
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great predictive force in a showing of past criminal acts

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along the same lines.

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bespeaks a complete absence of qualm or inhibition, and

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likewise shows that the defendant’s will and disposition did

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not run counter to the act and did not need to be overcome.

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Similarly, a ready acceptance

The predictive force of a formed design is sufficient

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on its own only if a course of conduct is already so well

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advanced in the defendant’s mind that one can be sure

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(beyond a reasonable doubt) it was not planted by an agent

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provocateur.

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sufficient evidence to prove that the accused had an already

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formed design without there also being sufficient evidence

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of a relevant criminal history or of ready assent to the

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government’s proposal.

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Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980) (“All of this

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evidence [of the defendants’ prior criminal conduct] could

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support a jury finding either that the [defendants] had been

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engaged in a similar ‘course of criminal conduct,’ or had

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already formed the design to sell cocaine and were merely

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looking for a buyer.”).

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Perhaps this is why we have never before found

Cf., e.g., United States v.

It therefore is not enough to infer a formed design to

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commit an act of terror from a sense of grievance or an

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impulse to lash out.

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most people will never combust.

These disquiets are common, and in

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With this in mind, there is scarce evidence of any

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“already formed design” on the part of Cromitie.

As the

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majority opinion explains, evidence of predisposition must

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be independent of the government’s inducement.

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v. United States, 503 U.S. 540, 550 (1992).

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statements at his initial meeting with Hussain therefore

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would be probative only if they showed Cromitie’s thinking

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prior to inducement.

See Jacobson

Cromitie’s

And I agree that Jacobson allows

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consideration of certain acts or statements that follow

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government inducement.

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179, 192 (2d Cir. 2006).

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long after the inducement process began might show

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predisposition, but only if they refer back to Cromitie’s

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state of mind prior to inducement or if they tend to show

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that Cromitie came up with the criminal design on his own.

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Cromitie’s statement that he had been thinking about

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attacking America “since [he] was [seven]” is a backward-

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looking statement, but it is well short of a formed design,

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and shows only that any such ideation was permanently

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postponed.2

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one who first approached Hussain the day they met also

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See United States v. Brand, 467 F.3d
Thus statements that Cromitie made

Likewise, Cromitie’s statement that he was the

When I was seven, I wanted to be a fireman.
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refers back to Cromitie’s state of mind prior to the

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inducement.

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Cromitie might have had; it might perhaps bear on whether

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there was inducement, except that it is common ground that

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inducement was offered.

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But it proves nothing about any “design”

The majority opinion relies heavily and passim on post-

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inducement acts and statements that do not reflect the

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defendant’s state of mind before the initial inducement, and

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therefore do not bear on predisposition.

See Jacobson, 503

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U.S. at 551-52.

Cromitie did what he was induced to do, and

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seemed happy doing it, but that cannot suffice; otherwise

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the induced act would always evidence the predisposition to

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do it.

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majority’s opinion, Maj. Op. 39-40, regarding specifics of

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the attack--such as targets--were made in direct response to

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Hussain’s badgering Cromitie to form a design or make a

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plan.

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the bridge” was a direct response to Hussain’s asking

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“[w]hat is the, what, I mean, in your mind, were your best

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targets here?

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“get[ting] a synagogue” occurred later in that same

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conversation and context.

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months after the first meeting in June 2008, cannot be used

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to prove predisposition under Jacobson.

All of Cromitie’s statements listed in the

For example, Cromitie’s statement about “hit[ting]

In New York?”

And Cromitie’s statement about

These statements, which occurred

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Hussain’s

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industrious labor to convince Cromitie to join a terrorist

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plot--including Hussain’s exploitation of Cromitie’s “love”

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of and respect for Hussain and Hussain’s offers of large

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sums of money to the impoverished Cromitie--colors these

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statements, along with many others cited by the majority3;

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they show the government’s successful inducement, not

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Cromitie’s predisposition.

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No reasonable jury weighing only the evidence of

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predisposition admissible under Jacobson could conclude that

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Cromitie had an “already formed design” to commit an act of

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terror.

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America” is not a formed design, and certainly not

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“preparation,” Sherman, 200 F.2d at 882.

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not designs.

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of a foolish man; the other could be banter in any faculty

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lounge.

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Wanting to “die like a martyr” and “do something to

These are wishes,

One amounts to no more than the boastful piety

It is clear that Cromitie in his unmolested state of

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grievance would (for all the evidence shows, and as the

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district court found) have continued to stew in his rage and

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For instance, Cromitie’s statement regarding Allah
giving him his “own will,” and “if I’m doing something, it’s
because I wanted to do that for so long,” Maj. Op. 40-41,
were made during a long conversation in February 2009,
months after Hussain’s concerted inducement had begun.
During that same conversation, Hussain pushed Cromitie to
scout targets and recruit other members from the mosque.
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ignorance indefinitely, and had no formed design about what

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to do.

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form, so that the agent rather than the defendant inspired

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the crime, provoked it, planned it, financed it, equipped

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it, and furnished the time and targets.

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Cromitie was comically incompetent, possibly the last

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candidate one would pick as the agent of a conspiracy.4

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There simply was no evidence of predisposition under our

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settled definition of that term.

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The government agent supplied a design and gave it

He had to, because

I would therefore reverse Cromitie’s conviction as the

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product of entrapment.

At the same time, I agree with the

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majority that the other defendants were not entrapped, and I

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therefore concur in the affirmance of their convictions.5

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En route to the terror site, the government agent
directed Cromitie to assemble the bombs; but he couldn’t
figure it out, and had to be shown how to do it. At the
site, the government agent directed him to hide the bombs in
the trunk of the car; but he couldn’t get the trunk open, so
he put them in the back seat. The government agent then
directed him to arm the bombs, but as they drove away from
the supposed car-bomb parked in front of the synagogue,
Cromitie exclaimed “holy s***, I forgot to turn it on.”
The majority opinion argues that competence is not a
consideration in the entrapment defense. I agree, up to a
point; but Cromitie’s bumbling compelled the exasperated
government agent to treat him as a puppet. Certainly, it
shows how little danger Cromitie posed to the community.
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As the majority points out, the district court has
conscientiously demonstrated with telling circumstantial
evidence that each defendant (other that Cromitie) readily
responded to Cromitie’s offer to join the plot. I would
affirm based on the district court’s reasoning.
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