RIPPLE, Circuit Judge.
John Smith was arrested after a sting operation in which the Government had organized two fictional drug transactions. Based on his participation in that operation, a jury convicted Mr. Smith of both conspiring and attempting to possess with intent to distribute more than five kilograms
Prior to his arrest, Mr. Smith was a part-time police officer and the owner of security and towing businesses. In 2009, Detective Shani Anderson began investigating Mr. Smith for employment tax crimes and other offenses.
In the fall of 2010, Mr. Smith told Roberson that he needed money. According to Roberson, Mr. Smith knew that drug dealing was taking place at the apartment complexes where he provided security services, and he asked Roberson to find a drug stash house that he could rob while wearing police gear. He also asked if Roberson knew any Latin Kings that needed security protection while transporting drugs. Roberson relayed this information to Detective Anderson, and she referred the case to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF").
The ATF agent overseeing the investigation continued to use Roberson as a confidential informant. The agent decided to operate in an undercover capacity to determine if Roberson accurately had reported that Mr. Smith was willing to provide security protection for a drug organization. Roberson introduced the agent to Mr. Smith as "Danny," Roberson's longtime friend with ties to New York drug dealers and mobsters. During their first meeting, Danny mentioned that he might need some "security type stuff," to which Mr. Smith replied, "I'll hook you up.... I'm loyal as the day is long. Anything you and I talk about, it's me and you," and, "I'm all about making money."
Five days later, Danny came to Mr. Smith's towing business. Danny told Mr. Smith that he did "runs" for people from New York who "aint no joke."
The next week, Mr. Smith met Danny outside of a Steak `n Shake restaurant. Danny expressed reluctance to deal with Mr. Smith because of Mr. Smith's past participation with an FBI investigation. Mr. Smith told Danny that he was "an open book," that he was "in this for the... money," and that he was a businessman who "provide[s] protection and that's all."
A month later, Mr. Smith met Danny at an Indianapolis gun show where he purchased three firearms for him. Mr. Smith also introduced Danny to a police-officer acquaintance. Mr. Smith and his acquaintance told Danny that they wanted to "make some money."
Danny met Mr. Smith at a Denny's restaurant four days later. Instead of his original acquaintance, Mr. Smith now had recruited Terry Carlyle, a police officer, to assist him in providing security. At the meeting, Mr. Smith acknowledged that the trip was "a protection detail."
Mr. Smith accompanied Danny on two runs, during which they picked up a total of twenty-five kilograms of what Mr. Smith believed to be cocaine. During both trips, Mr. Smith drove Danny's car and carried high-powered firearms. During the first run, Mr. Smith offered to sell pistols to the drug dealer, a second undercover agent, so that the dealer then could smuggle the firearms into Mexico. During the second trip, Mr. Smith showed that same agent photos of an AK-47 and handguns as well as a video of a weapon with a twenty-five-round capacity. The two then discussed prices for the weapons. One week later, Mr. Smith met the purported drug dealer and sold him thirteen firearms for $8,000.
A grand jury indicted Mr. Smith for one count of conspiring to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; two counts of attempting to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; one count of transferring firearms knowing that they would be used in a drug trafficking crime, in violation of 18 U.S.C. § 924(h); and three counts of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Prior to trial, the district court granted the Government's motion to dismiss one count of possessing a firearm in furtherance of a drug trafficking crime.
At trial, Mr. Smith argued that he was entrapped by Roberson and the government agents. He testified that Roberson had begged him incessantly to get involved in the scheme as a way to help pay off Roberson's drug debts and to shield Roberson's children from harm. Roberson denied Mr. Smith's claims. The district court instructed the jury on the elements of an entrapment defense, explaining that the agents "did not persuade or otherwise induce the Defendant to commit the offense," or that "[t]he Defendant was predisposed to commit the offense before he had contact with law enforcement officers."
Mr. Smith contends that the Government violated his right to due process of law by soliciting him to participate in a fictional drug transaction completely operated by undercover agents. He relies on United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and its progeny. He acknowledges that he did not raise this argument before the district court, and therefore we review for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990).
The Supreme Court has left open the possibility that there are limits to the Government's authority to create illegal activity in the course of an investigation. In Russell, the Court addressed whether government conduct, standing alone, can violate a defendant's right to due process of law. In that case, the defendant argued that the Government's "involvement in the manufacture of the methamphetamine was so high that a criminal prosecution for the drug's manufacture violates the fundamental principles of due process." Russell, 411 U.S. at 430, 93 S.Ct. 1637. The Supreme Court rejected that contention, holding that, under the facts of the case, the Government's conduct was not objectionable. See id. at 431-32, 93 S.Ct. 1637. The Court noted that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," but concluded that "the instant case [was] distinctly not of that breed." Id. The Government's conduct stopped "far short of violating that fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause." Id. at 432, 93 S.Ct. 1637 (internal quotation marks omitted).
The Court revisited the issue in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), and a plurality of the Court suggested that a defendant's remedy for improper government conduct lies either in the entrapment defense or in state and federal statutes, and not in the Due Process Clause. See id. at 489-90, 96 S.Ct. 1646 (plurality opinion). The plurality explained:
Id. at 490, 96 S.Ct. 1646 (alteration omitted) (citation omitted) (internal quotation marks omitted). However, in a concurring opinion joined by Justice Blackmun, Justice Powell stated that he was "unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles."
Our early cases expressed skepticism about the validity of the "outrageous government conduct" defense. See, e.g., Duncan, 896 F.2d at 275, 277 (noting that the doctrine's validity was questionable and concluding that the district court did not commit plain error in refusing to recognize an "outrageous governmental conduct" defense); United States v. Belzer, 743 F.2d 1213, 1216-20 (7th Cir.1984) (holding that the Government's conduct was not outrageous and therefore did not violate due process). More recently, we have said that the defense "does not exist in this circuit."
The evidence presented at trial clearly demonstrates that the Government did not induce Mr. Smith to commit the crime, see Mayfield, 771 F.3d at 434-35 (defining inducement as "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"
Instead, the evidence demonstrates that Mr. Smith actively sought out the criminal activity. See Mayfield, 771 F.3d at 438 (holding that "a defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government's intervention, or actively wanted to but hadn't yet found the means"). Roberson testified that, prior to the ATF's investigation, Mr. Smith told him that he needed money and asked Roberson whether he knew anyone who was "doing big time drug dealing, or transporting" and discussed the possibility of providing security for them.
The remaining evidence reveals that, when presented with the opportunity, Mr. Smith jumped at the prospect of regularly providing security for large-quantity drug transactions. See Blitch, 773 F.3d at 845 ("Carwell's predisposition is aptly demonstrated by his overwhelming enthusiasm for the venture."); Stallworth, 656 F.3d at 726 (rejecting the defendant's entrapment defense because he "showed no reluctance in participating and profiting from the deal"). During Mr. Smith's first meeting with the undercover ATF agent, Mr. Smith repeatedly expressed his interest in making money and attempted to gain the agent's trust. Mr. Smith then suggested that he, Roberson, and the undercover agent "ought to sit down and talk about how we can — how we can best make some... money between the three of us."
During their subsequent meetings, Mr. Smith continually expressed his interest in making money by providing security for the agent. When first asked about providing security for the agent during a specific trip, Mr. Smith expressed his enthusiasm by responding, "Tell me where you want to go and when."
Because we do not recognize outrageous government conduct as cause for dismissing an indictment, Mr. Smith's challenge to his conviction fails. In any event, the evidence reveals that Mr. Smith jumped at the opportunity to make money by providing protection for individuals involved in the illicit drug trade and that he was an active and enthusiastic participant throughout the sting operation. The district court, therefore, did not commit plain error by failing to dismiss Mr. Smith's indictment on account of the Government's conduct. The judgment of the district court is affirmed.
AFFIRMED.
Hampton v. United States, 425 U.S. 484, 493 n. 4, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (alterations in original) (quoting United States v. Archer, 486 F.2d 670, 676-77 (2d Cir.1973) (footnote omitted)).