United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S MOTION IN LIMINE VI
(DKT. NO. 277 AT 18) PRECLUDING GOVERNMENT FROM SPECULATING
AS TO DEFENDANT'S POSITIONAL PREDISPOSITION
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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.
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
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
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
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.
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.
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.
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.
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.
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,