Nathan Ward v. USA

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6845645-1] [6845645] [15-2599]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 15-2599
NATHAN WARD,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 9025 — Harry D. Leinenweber, Judge.

ARGUED JANUARY 12, 2017 — DECIDED JUNE 5, 2017

Before BAUER, SYKES, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Petitioner Nathan Ward and his
codefendants were convicted on several counts arising out of
a stash-house robbery sting. They challenged their convictions

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on direct appeal; Ward’s conviction was affirmed.1 Ward filed
a petition under 28 U.S.C. § 2255, seeking relief on several
grounds, including ineffective assistance of counsel. The
district court denied the petition without holding a hearing.
On appeal, Ward focuses on one issue: whether he received
ineffective assistance of counsel when his trial counsel failed
to raise an entrapment defense and object to the government’s
motion in limine seeking to preclude that defense. We affirm.
I. BACKGROUND
This story begins with codefendant Leslie Mayfield and
Jeffrey Potts, a confidential informant for the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF). Potts
recruited Mayfield to carry out an armed robbery of a cocaine
stash house; Mayfield was unaware that Potts was a confidential informant and that the stash house did not exist.
On July 23, 2009, Potts and Mayfield met with a disgruntled
drug courier. Unbeknownst to Mayfield, this drug courier was
actually undercover ATF Agent David Gomez. Gomez gave
Mayfield an overview of the plan to rob his cocaine supplier’s
stash house, and he instructed Mayfield to recruit others to
join. After maintaining contact for the next couple weeks,
Mayfield and Gomez planned to meet on August 9, 2009.
On August 9, 2009, as planned, they held a meeting at a
strip mall parking lot in Naperville, Illinois, which lasted

1

See United States v. Kindle, 698 F.3d 401, 405–08 (7th Cir. 2012), reh’g en banc
granted, opinion vacated sub nom., United States v. Mayfield, 2013 U.S. App.
LEXIS 1456 (7th Cir. 2013), panel opinion reinstated in part, 771 F.3d 417, 424
n.3 (7th Cir. 2014) (en banc).

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approximately 20 minutes. At that meeting, Mayfield brought
along Montreece Kindle, and Kindle brought Ward and a
person known only as “New York.” Gomez provided the
group details about the plan to rob the stash house, including
the number of armed guards, the amount of cocaine, and how
he would be informed of the location of the cocaine supply.
The group then discussed logistics of their robbery plan.
Ward actively participated in this discussion. For example,
when Gomez proposed that they split the cocaine fifty-fifty,
Ward disagreed, insisting that the cocaine be split evenly five
ways. After fielding several questions, Gomez told them to let
him know if the armed robbery plan was too much for any of
them to handle; no one did so, and Ward responded that he
was only gathering as much information as possible. Further,
Ward mentioned that his only concern was the number of
guards stationed in the stash house. However, he was not
concerned with whether the guards were armed because, as he
asserted, they would enter the stash house with their guns
already drawn.
On August 10, 2009, Ward and Kindle met at Mayfield’s
apartment with a newcomer named Dwayne White; “New
York” was a no-show. In a van, Ward drove Mayfield,
White, and Kindle to a designated parking lot to meet Gomez.
Once they arrived, Mayfield exited Ward’s van and entered
Gomez’s vehicle. Gomez then drove to a nearby storage
facility; Ward, with the others in the van, followed. Soon after
arriving at the storage facility, Gomez asked them if they had
any hesitations with proceeding with the robbery plan. No one
voiced any concerns. Instead, Ward announced that he did not
“come all the way from Milwaukee for nothin’.” Shortly after

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Gomez received assurances from the group, he gave an arrest
signal; ATF agents arrested Ward, Kindle, White, and Mayfield. ATF agents searched the van that Ward was driving
and recovered three masks, several guns each with multiple
rounds of ammunition, two bulletproof vests, latex gloves,
and a large duffle bag.
Ward and the others were charged with four counts:
conspiracy to possess with intent to distribute cocaine, 21
U.S.C. § 846; attempted possession with intent to distribute
cocaine, id.; possession of firearms during and in relation to a
drug trafficking offense, 18 U.S.C. § 924(c)(1)(A); and, unlawful
possession of a firearm by a felon, id. § 922(g). Ward, Mayfield,
and White were tried together in July 2010, while Kindle’s trial
was severed. Prior to trial, the government filed a motion
in limine to preclude the defendants from presenting entrapment defenses. Mayfield objected to the government’s motion,
but Ward and the others did not. The district court granted
the government’s motion.
At trial, Ward elected not to testify, but Mayfield did.
Mayfield testified that he did not know anyone in the Naperville area that would do the armed robbery with him. According to Mayfield, he did not contact anyone about participating
in the armed robbery until August 7, 2009, which is the date
he claimed that he called Kindle. Mayfield testified that
based on his call to Kindle, Ward and “New York” showed
up at his apartment, and that Kindle brought both of them.
Mayfield testified that he was not an acquaintance of Ward
and that he did not contact him. Mayfield testified that, on
August 9, 2009, he briefly talked to Ward, Kindle, and “New

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York” on the drive to meet Gomez, but he did not “lay everything out to them.”
On July 14, 2010, a jury convicted Ward on all counts. The
district court later sentenced him to 270 months’ imprisonment. We affirmed Ward’s conviction on direct appeal. See
Kindle, 698 F.3d at 405–08. The panel’s decision was vacated,
but it was reinstated to the extent that it affirmed all the
convictions with the exception of Mayfield’s. See Mayfield, 771
F.3d at 424 n.3.
On December 18, 2013, Ward filed a pro se § 2255 petition.
The district court denied the petition without holding an
evidentiary hearing; the district court rejected Ward’s claim
that his counsel was ineffective for failing to pursue an
entrapment defense. The district court concluded that Ward’s
counsel’s performance was neither deficient nor prejudicial
to his defense, reasoning that “Ward has not indicated what
evidence, if any, could support the requisite inducement or
lack of predisposition necessary to support an entrapment
defense.” Thereafter, the district court refused to grant Ward
a certificate of appealability, but we granted it. This appeal
followed.
II. DISCUSSION
When reviewing the denial of a § 2255 petition, “we review
the district court’s legal conclusions de novo, its factual findings for clear error, and its decision to forgo holding an
evidentiary hearing for abuse of discretion.” Martin v. United
States, 789 F.3d 703, 705 (7th Cir. 2015).

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A. Strickland Claim

Ward argues that his counsel was constitutionally ineffective for failing to raise an entrapment defense and object to the
government’s motion seeking to preclude that defense. To
establish ineffective assistance of counsel, Ward must satisfy
Strickland’s two-prong test: (1) that his counsel’s performance
fell below an objective standard of reasonableness; and, (2) that
his counsel’s deficient performance prejudiced his case,
meaning “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668,
687–88, 694 (1984). We may approach the inquiry in either
order, and we need not address both prongs “if the defendant
makes an insufficient showing on one.” Id. at 697.
In this case, we need only address Strickland’s prejudice
prong, determining whether the result of Ward’s trial would
have been different had his counsel pursued an entrapment
defense. “Entrapment is a defense to criminal liability when
the defendant was not predisposed to commit the charged
crime before the intervention of the government’s agents and
the government’s conduct induced him to commit it.” Mayfield,
771 F.3d at 420. The entrapment defense consists of two
temporally distinct elements: government inducement and lack
of predisposition. Id. at 442. Where the government has not
“induced” the crime within the meaning of the entrapment
doctrine, then the defense is “unavailable without the need for
a more complex inquiry into the evidence of predisposition.”
Id. at 432.

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We will focus on the government-inducement element of
the entrapment defense. “[I]nducement means government
solicitation of the crime plus some other government conduct
that creates a risk that a person who would not commit the
crime if left to his own devices will do so in response to the
government’s efforts.” Id. at 434–35; see id. at 435 (listing the
“other” government conduct).
Ward argues that he was induced in two ways: (1) vicariously or derivatively induced through Mayfield; and, (2) then
directly induced by Gomez.2 In response, the government
disputes both contentions and points out that Ward was
recruited by Kindle.
First, relying on our decision in United States v. Hollingsworth, 27 F.3d 1196, 1203–04 (7th Cir. 1994) (en banc), Ward
contends he was vicariously or derivatively induced through
Mayfield.3 In Hollingsworth, we reversed two defendants’
convictions on two separate theories of entrapment. Id. In
2

Ward briefed this argument under Strickland’s deficient-performance
prong. However, we find it more appropriate to discuss under the prejudice
prong. Regardless, under either prong, the result is the same.

3

What makes this task difficult for Ward is that, in Hollingsworth, we never
coined a name for the inducement that occurs between the first entrapee
and the derivatively-entrapped entrapee. See 27 F.3d at 1203–04. We
attempted to do so—we alluded to out-of-circuit authorities’ use of the term
“vicarious inducement,” see id at 1204 (collecting cases), but the defendant
in Hollingsworth was not vicariously induced as defined by those out-ofcircuit authorities, see id. Instead, we decided that what occurred between
the codefendants was “enough” for a derivative entrapment defense. See id.
For now, we will assume that Ward is invoking the “inducements” as
mentioned in Hollingsworth.

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doing so, we concluded that the entrapped codefendant, or
first entrapee, “transmitted [the government agent’s] inducements” to the codefendant, who we then determined to be
derivatively entrapped. Id. at 1203.4 What is important here is
that the first entrapee directly involved and solicited the crime
to the then derivatively-entrapped codefendant. See id. at
1203–04. As formulated in Hollingsworth, it is clear that the
derivative entrapment defense is limited to accomplices
“induced” through the first entrapee only. See id.
Hollingsworth is readily distinguishable. Unlike the
derivatively-entrapped codefendant that was induced through
the first entrapee in Hollingsworth, here Ward was not induced
through the first entrapee. Ward glosses over the fact that he
was recruited by Kindle, not by Mayfield.5 Indeed, Mayfield
testified that he did not contact or know Ward, and that Kindle
brought Ward. Because Ward was not induced through a first
entrapee, he cannot benefit from a derivative entrapment
defense. See United States v. Morris, 549 F.3d 548, 551 (7th Cir.
4

We need not delve into the two Hollingsworth defendants’ dealings, nor
could we. See 27 F.3d at 1212 (Easterbrook, J. dissenting) (noting the absence
of the discussion on “whether the evidence show[ed] that [entrapped
codefendant] acted as the government’s agent, and in this role entrapped
[the derivatively-entrapped codefendant]”).

5

Another shortcoming in Ward’s argument is that it is premised on the
assumption that Mayfield, like the entrapped codefendant in Hollingsworth,
was entrapped as a matter of law. Mayfield has received a new trial, but
the proceedings have not yet concluded and thus the determination of
whether he was entrapped as a matter of law has not been made. As a
result, Ward is unable to definitively establish that he was induced through
an entrapped codefendant, or first entrapee, as occurred in Hollingsworth.

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2008) (“Individuals tempted, induced or set up by anyone
besides a state agent cannot raise an entrapment defense to
criminal charges.”). Thus, Ward’s argument that he was
vicariously or derivatively induced through Mayfield fails.
Second, Ward argues that he was also induced by Gomez.
But this argument fails because Ward is unable to show any
evidence that Gomez subjected him to unlawful inducements.
Gomez furnished Ward—at the very most—an opportunity to
commit the crime on its customary terms. Indeed, we have
already determined that, on these facts, this was “an opportunity to participate in what was apparently a typical stash-house
robbery … .” Mayfield, 771 F.3d at 441. We have considered
Ward’s other arguments concerning Gomez’s role, but none
merit discussion.
Because Ward has provided no evidence of unlawful
inducement, we need not go through the predisposition
inquiry. As a result, an entrapment defense would not have
been successful, and thus Ward was not prejudiced by his
counsel’s failure to raise it. Accordingly, Ward did not receive
ineffective assistance of counsel.
B. Evidentiary Hearing
Ward contends that the district court erred in summarily
dismissing his petition without holding an evidentiary hearing.
An evidentiary hearing is unnecessary when the district court
is able to conclusively determine from the record that the
prisoner is not entitled to any relief. 28 U.S.C. § 2255(b); see
Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016) (“Not
every petitioner who seeks relief pursuant to § 2255 is entitled
to an evidentiary hearing.”). As shown above, the record

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conclusively demonstrates that Ward is not entitled to any
relief. See 28 U.S.C. § 2255(b). Accordingly, the district court
did not abuse its discretion in dismissing Ward’s petition
without holding an evidentiary hearing.
III. CONCLUSION
The district court’s judgment is AFFIRMED.