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United States v. Hamzeh

United States District Court, E.D. Wisconsin

October 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMY M. HAMZEH, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION IN LIMINE VI (DKT. NO. 277 AT 18) PRECLUDING GOVERNMENT FROM SPECULATING AS TO DEFENDANT'S POSITIONAL PREDISPOSITION

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         A little over two months prior to the scheduled October 21, 2019 trial date, the defendant filed a motion in limine seeking leave to present the affirmative defense of entrapment. Dkt. No. 234. The government filed a lengthy response, objecting to the request. Dkt. No. 255. In that objection, the government argued that under the Seventh Circuit's decision in United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994), the Seventh Circuit held that predisposition-one of the elements the government must prove to defeat the entrapment defense-requires a showing that the defendant “was not merely mentally predisposed to commit a crime but also in a position to potentially actually commit that crime or some similar crime.” Id. at 34. The government noted that in asking to present the entrapment defense, the defendant had asserted that he wasn't in a position to obtain a machinegun at the time the government informants started talking with him. Id. The government disagreed. It first asserted that “machineguns are available for street purchase, ” claiming that such weapons “are seized in Milwaukee, Chicago, in Texas, and nationwide all the time.” Id.

         The government made another argument regarding the defendant's “positional disposition, ” however, one that the court informed government counsel at the final pretrial conference it was inclined to reject. The government argued in its opposition to the entrapment defense that

Second, and perhaps even more importantly, aftermarket parts that convert semiautomatic guns that a person can buy at any sporting goods store into automatic weapons, like bump stocks and Glock switches, are gallingly inexpensive and accessible. Contrary to [the defendant's] claim in his motion, he could easily have acquired a simple, fully-automatic converter. These parts are still available for purchase online (not merely on the dark web, but) on websites like wish.com. For $16, [the defendant] could have converted a cheap semiautomatic handgun into precisely the small automatic weapon he wanted. See High Quality Semi Full Auto Switch for Handgun Glock G17 G19 G22 G23 (available at https://www.wish.com/product/high-quality-semi-full-auto-switch-for-handgun-glock-g17-g19-g22-g23-5b0f8e805cfaae22ceaa73fa?&hideloginmodal=true).
At the time of the charged offense, [the defendant] could quite literally have bought one on Amazon.com. Thousands and thousands of them have been shipped into the United States, for under $20 each. See Scott Glover, CNN, ATF On The Hunt For Thousands of Illegal Machine Gun Conversion Devices Smuggled into U.S. (available at https://www.cnn.com/2019/05/23/us/aft-agents-hunting-down-illegal-machine-gun-device-invs/index.html). Just because [the defendant] had not yet available himself of this possibility does not mean he was entrapped under Hollingsworth. You cannot buy a nuclear weapon on Amazon.com for $16.

Id. at 34-35.

         In his reply in support of the request to present an entrapment defense, the defendant characterized the government's “he could've gotten conversion parts online” argument as “troubling.” Dkt. No. 270. The defendant asserted that in both Hollingsworth and United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014), the Seventh Circuit had held that the government had to demonstrate the probability that the defendant was in a position to commit the crime with which he was charged, “not a matter of what other dangerous uses of weapons the government can conjecture about [the defendant] getting . . . .” Id. at 12-13.

         The defense was concerned enough about this argument that it filed its own motion in limine, asking the court to prevent the government from “speculating about [the defendant's] positional predisposition.” Dkt. No. 277 at 18 (motion in limine VI). The defendant asked the court to preclude the government from making arguments “about any steps [the defendant] could have taken-such as acquiring a kit to convert a semi-automatic rifle into a machine gun.” Id. The defendant asked the court to confine the government to presenting evidence that the defendant was positioned to purchase a machinegun, because that was the crime with which he has been charged. Id.

         The government responded by asserting again that “for under $20, anyone with an internet connection could buy a device online that qualifies as a ‘machinegun' under the charging statute in this case at the time of the charged offense.” Dkt. No. 285 at 10. The government recounted that the indictment alleged that the defendant had violated 26 U.S.C. §5861(d); that statute refers the reader to 26 U.S.C. §5845 for the definition of “machinegun.” Id. at 16. The government pointed out that included in §5845's definition of a “machinegun” is “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.” Id. (quoting 26 U.S.C. §5845). The government then repeated-verbatim-its argument from its brief in opposition to the entrapment defense. Id. at 17.

         Next, the government argued that the statutory definition of machineguns includes the conversion parts that the government asserts are “universally accessible for $20 . . . .” Id. For that reason, the government asserted, the defendant was, “as we all disturbingly are, in a position to buy a machinegun.” Id. at 18.

         The government went on to say that

[p]ositional predisposition analysis sometimes focuses on training and experience because those issues are relevant in cases where training and experience are actually necessary to commit an offense (like setting up an international financial transaction, as in Hollingsworth). Buying an item on amazon.com or wish.com, or borrowing one from a friend, or stealing one, does not take any training. [The defendant], an American in his early 20s who had some college education, cannot credibly claim he could not himself, and did not know a single acquaintance who could, buy an item on Amazon.com. The defense asks the Court to extend Hollingsworth very substantially without any guidance from the Seventh Circuit that it should. United States v. Hall, 608 F.3d 340, 345 (7th Cir. 2010).
“In Hollingsworth, [the Seventh Circuit] explained that Jacobson [v. United States,503 U.S. 540 (1992)] did not . . . add an “ability” element to the entrapment formulation. 27 F.3d at 1199. But even if it had, [the defendant] most certainly had the ability to possess a machinegun. A converter is a machinegun. And this is to say nothing of the plain fact that there are fully functional machine guns in Milwaukee at this very second, and it is perfectly plausible that [the defendant] could have bought, ...

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