Submitted: January 15, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Combs appeals from his conviction for conspiracy to possess
with intent to distribute cocaine and for possession of a
firearm in furtherance of a drug-trafficking crime. Combs was
arrested following a reverse-sting operation conducted by the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
("ATF") in 2013. Combs contends that the district
court erred by denying his motion to dismiss the
indictment for outrageous government conduct and by refusing
to instruct the jury on entrapment. We affirm.
case arose out of an ATF investigation into Kevin
Nailor's illegal possession and sale of firearms. In June
and July of 2013, ATF conducted controlled purchases of two
handguns from Nailor through a confidential informant. During
these encounters, Nailor told the informant that he led a
crew that was planning to rob a marijuana dealer. In light of
Nailor's criminal history and access to firearms, ATF
decided to expand its investigation into Nailor to include
the planned drug robbery.
informant arranged a meeting on August 20, 2013, to introduce
Nailor to ATF Special Agent Leon Edmond, working undercover.
The purpose of the meeting was to assess whether Nailor
actually had a robbery crew and, if so, to divert the crew to
a sting operation. All of Edmond's meetings with the
suspects were recorded.
presented himself to Nailor as a disgruntled courier for a
Mexican drug cartel, and he described to Nailor a scenario
consistent with other drug operations in the region. He
explained that the cartel was not paying him enough money and
that he was looking to hire a crew to rob a "stash
house" used by the cartel. Edmond told Nailor that the
cartel transported approximately eight kilograms of cocaine
to a stash house in St. Louis every few weeks, and that after
the cocaine arrived, he would be responsible for transporting
up to two kilograms to Memphis, Tennessee. Edmond advised
that he would not learn the location of the stash house until
the morning of the delivery, and he forecast that the house
would be protected by two or three armed guards.
offered to commit the robbery for Edmond in exchange for five
of the eight kilograms of cocaine. Nailor told Edmond that
his crew, which included two others, was experienced with
home-invasion robberies. Nailor also told Edmond that his
crew would be prepared with "heavy shit . . ., some
retarded looking shit, " which Edmond understood to mean
high-powered firearms. Edmond gave Nailor several
opportunities to back out, but he maintained interest in the
plan. Edmond and Nailor remained in contact after their
meeting, and they agreed to meet again.
meeting on September 4, Nailor introduced Edmond to the other
members of his robbery crew: Walter Combs and Shatondi Rice.
Combs arrived first, and Edmond reviewed the robbery scenario
for Combs and Nailor. Combs later told Edmond that the
robbery was "what we've been waiting on." When
Rice arrived, Edmond asked Combs to explain the plan. Edmond
testified that he did so to make sure the suspects knew
exactly what he was asking of them. Combs assured Edmond that
the crew could handle the robbery, telling him "this is
what we do, " "we don't do shit but licks,
" and "we know how to case houses real good."
A "lick" is a common slang term for robbery.
"Casing a house" refers to conducting surveillance
in preparation for a robbery.
and Nailor both recommended tying up the guards, but Combs
proposed to kill them, reasoning that "a dead man
can't talk." While discussing how they would conduct
the robbery and what firearms they would bring, Combs likened
their strategy to that used for a previous robbery in
Wellston, Missouri. Combs then explained that he would sell
his share of the cocaine as small quantities of crack
cocaine. Edmond again gave the men a chance to back out;
Combs rejected this opportunity and promised, "We gonna
be the people you call every time."
met with Combs and Rice a week later. Combs then provided
greater detail on the plan to rob the stash house, kill the
guards, and sell his share of the cocaine. Combs also asked
Edmond to rent a getaway vehicle, and told Edmond that he
would obtain fake license plates so the vehicle could not be
traced back to them. Edmond agreed, reasoning that providing
a vehicle would allow ATF to arrest the suspects more safely
at a remote location. Before leaving, Edmond again gave Combs
and Rice an opportunity to back out, and neither did.
September 17, 2013, Edmond called Nailor and told him the
cocaine had arrived at the stash house. The robbery crew met
again with Edmond to review final details for the robbery.
Nailor, Combs, and Rice then left to pick up their weapons.
The men returned approximately fifteen minutes later and
followed Edmond to the rental vehicle at a nearby scrap yard.
At the scrap yard, Combs removed two firearms from under the
hood of his vehicle and handed them to Rice. Rice placed one
in his waistband and the other inside the rental vehicle.
While the group was supposedly waiting for Edmond to receive
a call from the cartel, ATF agents arrived and arrested
Nailor, Combs, and Rice. During the arrest, a loaded .22
caliber handgun fell out of Rice's waistband, and agents
discovered another loaded .22 caliber handgun inside the
jury charged Combs with several offenses: conspiracy to
possess with intent to distribute more than five kilograms of
cocaine, see 21 U.S.C. §§ 841(a)(1), 846,
and 841(b)(1)(B)(ii); possession of a firearm in furtherance
of a drug-trafficking crime, see 18 U.S.C.
§§ 924(c)(1); and witness tampering, see
18 U.S.C. § 1512(a)(2)(A). The district court denied
Combs's motions to dismiss the indictment for lack of
federal jurisdiction and for outrageous government conduct,
and the case proceeded to trial. After the government
presented evidence of the events described above, Combs
testified in his defense. Combs claimed that Nailor pressured
him into participating in the stash-house robbery, and that