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United States v. Andrews

United States Court of Appeals, Sixth Circuit

May 23, 2017

United States of America, Plaintiff-Appellee,
v.
Dominick Andrews, Defendant-Appellant.

          Argued: March 9, 2017

         Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cr-00022-3-Michael R. Barrett, District Judge.

         ARGUED:

          Gregory Charles Sassé, Cleveland, Ohio, for Appellant.

          Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

         ON BRIEF:

          Gregory Charles Sassé, Cleveland, Ohio, for Appellant.

          Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

          Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.

          OPINION

          JULIA SMITH GIBBONS, Circuit Judge.

         After being indicted on drug, robbery, and gun charges, Dominick Andrews sought to have his indictment dismissed on the grounds that the arresting federal agents had engaged in outrageous conduct. When the district court denied his motion to dismiss, Andrews entered into a plea agreement under which he would plead guilty to conspiracy to possess cocaine with intent to distribute and aiding and abetting the possession of a firearm in furtherance of a drug-trafficking crime. After his change-of-plea hearing but prior to sentencing, Andrews sought to withdraw his plea, arguing that he had an absolute right to do so because the court had not yet accepted his plea. The district court refused to allow withdrawal, finding that it had accepted the plea and that Andrews had not shown a "fair and just reason" for doing so. On appeal, Andrews argues that the district court erred in refusing to dismiss the indictment and erred in determining that it had accepted his guilty plea. Because the district court expressly declined to accept the plea, we reverse the denial of the motion to withdraw and remand for further proceedings consistent with this opinion.

         I.

         In February 2014, a federal grand jury in the Southern District of Ohio returned a seven-count indictment against Dominick Andrews and three co-conspirators. Andrews was charged with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count 1), conspiracy to interfere with commerce by robbery and threats of physical violence in violation of 18 U.S.C. § 1951 (Count 2), aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 4), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 7).

         Andrews filed a motion to dismiss the indictment on the grounds that outrageous government conduct violated his constitutional due process rights. He argued that he was recruited to participate in an "all-too-easy stash-house robbery" by undercover agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The ATF agents had posed as "disgruntled drug couriers" for a Mexican drug-trafficking organization, presented a comprehensive plan to steal twelve kilograms of cocaine, and offered to help the defendants prepare for the robbery. DE 43, Page ID 182-84. They arrested Andrews and his co-conspirators when they arrived at the pre-arranged meeting point for the robbery. Id. at 185. Andrews claimed that the agents engineered and directed the criminal activity from start to finish and that he had "no independent role in planning the crime." Id. at 186-87. He also argued that he was targeted only because a confidential informant (CI) identified him as someone who "would buy the fantasy ATF was selling." Id. at 188.

         The district court denied the motion to dismiss. It credited an ATF agent's testimony that one of the defendants first approached the CI to find "drug dealers he could take down in a robbery" and that ATF had provided the defendants with multiple opportunities to withdraw. DE 64, Page ID 336-37. It applied the test for outrageous government conduct established in United States v. Barger, 931 F.2d 359 (6th Cir. 1991), finding that the first and second factors-the need for police conduct and who provided the impetus for the scheme-weighed against defendants when construing all of the evidence in a light most favorable to the prosecution. Considering the similar issue of entrapment, the court concluded that it was more properly raised as a defense at trial because "the undisputed evidence" did not "demonstrate a patently clear absence of predisposition, " as is required to establish ...


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