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United States v. Combs

United States Court of Appeals, Eighth Circuit

July 5, 2016

United States of America, Plaintiff- Appellee,
v.
Walter Combs, also known as Victor Flenoy, Defendant-Appellant.

          Submitted: January 15, 2016

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

          COLLOTON, Circuit Judge.

         Walter 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[1] erred by denying his motion to dismiss the indictment for outrageous government conduct and by refusing to instruct the jury on entrapment. We affirm.

         I.

         This 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.

         The 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.

         Edmond 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.

         Nailor 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.

         At a 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.

         Edmond 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."

         Edmond 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.

         On 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 rental vehicle.

         A grand 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. ยง 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 he ...


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