                              PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 18-1663
                   _____________

          UNITED STATES OF AMERICA

                          v.

                  TYSON BAKER,
                              Appellant
                  _______________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
             (D.C. No. 1-16-cr-00018-001)
        District Judge: Hon. Sylvia H. Rambo
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                  January 25, 2019

Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.

            (Opinion Filed: May 24, 2019)
Jack J. McMahon, Jr.
139 North Croskey Street
Philadelphia, PA 19103
      Counsel for Appellant

William A. Behe
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
      Counsel for Appellee
                      _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Tyson Baker appeals his convictions for stealing public
property and for related offenses. He complains of the District
Court’s denial of his request for a jury instruction on
entrapment, the jury instruction that was given on intent, and




                              2
the exclusion of his wife’s testimony regarding her medical
expenses. For the reasons that follow, we will affirm.

I.     BACKGROUND

       A.     Factual History1

       Baker was employed as a police officer by the Fairview
Township Police Department in York County, Pennsylvania.
In 2015, the FBI approached Baker’s fellow officer Michael
Bennage to assist in an investigation into allegations that Baker
was involved in the theft of drug proceeds. Bennage
reluctantly agreed to “keep [his] ear to the ground” and “report
back to them what [he] saw or heard.” (App. at 45.)

        He did so. A few months later, he relayed to the FBI
that Baker had suggested to him that “we … start ripping off
drug dealers as a means to help financially with our individual
bills and stresses of life.” (App. at 48.) An FBI agent then
gave Bennage a recording device to capture any future
incriminating conversations. In September 2015, Bennage
recorded a conversation with Baker during which, in response
to Bennage’s statement that he had heard of a drug dealer who
would be transporting a large sum of money, Baker said it
sounded “like a rip to me, a straight up rip.” (App. at 52.)




       1
         “Because the jury returned a verdict in favor of [the
government], we must examine the record in a light most
favorable to [the government], giving [it] the benefit of all
reasonable inferences… .” Mancini v. Northampton Cty., 836
F.3d 308, 314 (3d Cir. 2016) (citation omitted).




                               3
       A few weeks passed without incident. Then, on
November 17th, Baker apparently learned from a police report
prepared by Bennage that Bennage had found cash on a drug-
overdose victim, and Baker indicated he wanted some of the
money. He texted, “Where’s mine? LOL.” (App. at 57.)
Bennage responded that other officers had been watching him,
to which Baker texted, “next time. LOL.” (App. at 58.)

        Three days afterwards, on November 20, Bennage
secured a search warrant for a residence suspected to be used
in illegal drug transactions. In the process of executing that
warrant, Bennage and other officers discovered multiple stacks
of cash amounting to $1,000 each. Baker arrived at the scene
hours later, after sending an unexpected text to Bennage saying
that he would help with the evidence. Baker told Bennage,
“tonight’s the night, don’t get greedy, be smart.” (App. at 70.)
Later that day, after the drug proceeds had been moved to the
conference room, Baker told Bennage the stacks should be
“less two[]” for the two of them to split. (App. at 82, 472.)
Baker ultimately told Bennage to put his share, a single stack,
in a toolbox in Baker’s truck.2

        Less than a month later, on December 16th, the FBI and
Bennage executed an undercover operation in which Bennage
and Baker would stop an FBI agent travelling with $15,000 and
posing as a drug trafficker. The operation went according to
plan: Bennage pulled over the undercover officer, and Baker
arrived at the scene shortly thereafter. Bennage then took the
‘trafficker’ in for booking, leaving Baker alone with the

       2
         Baker, however, had driven a different car to work, so,
instead, Baker unlocked his car and Bennage hid the money
under the driver’s side mat.




                               4
vehicle. Once alone, Baker had the car towed to a garage and
searched it. He discovered a bag containing the $15,000.
Unbeknownst to Baker, the FBI had installed cameras in the
vehicle and remotely watched the entire process. Baker took
$3,000.3 Baker later described that theft as the result of his
“ugly thoughts[.]” (App. at 478.)

     He was taken into custody by the FBI two days later,
and he confessed to the thefts that took place on
November 20th and December 16th.

       B.      Procedural History

       A grand jury returned an eight count indictment against
Baker, including a charge for stealing or embezzling public
money, in violation of 18 U.S.C. § 641. Baker subsequently
entered into a plea agreement, pursuant to which he pled guilty
to violating § 641. He was later permitted to withdraw that
plea, and he eventually proceeded to trial.

        At trial, Baker made three requests that are at issue on
this appeal. First, he asked the District Court to give a jury
instruction on the defense of entrapment, but he and the
government agreed to wait until “the conclusion of testimony”
for the Court to “make [its] decision whether … [he had] fairly
raised [the defense].” (App. at 446.) After the close of
testimony, the District Court decided that an entrapment
instruction was not warranted and did not give the requested
instruction.


       3
            Baker gave Bennage $1,000 and kept $2,000 for
himself.




                               5
       Second, Baker requested a jury instruction requiring the
government to prove a violation of 18 U.S.C. § 641 with
evidence that he had an intent to permanently deprive the
government of its money, and stating that a temporary
deprivation was insufficient. The District Court disagreed and
instructed the jury that “[t]o steal or knowingly convert [within
the meaning of § 641] means … [to do so] with intent to
deprive the owner of its use or benefit either temporarily or
permanently.” (App. at 557.)

       Third, Baker wanted to present testimony by his wife
about the financial burden created by her cancer-related
medical bills. Baker gave two reasons for offering that
evidence: first, to demonstrate that he did not intend to
permanently deprive the government of its money, and,
second, to respond to the government’s evidence showing his
nice home.4 The District Court concluded that the first purpose
was irrelevant. As to the second purpose, the Court excluded
the proposed testimony, saying there was a risk of unfair
prejudice to the government due to sympathy for a cancer
survivor. The District Court did, however, rule that Baker and
his wife could explain the fine quality of the house, by saying,
for example, that Mrs. Baker’s parents helped pay for it.5 And,
the Court allowed Baker himself to testify about the burdens

       4
          The government presented photographic evidence of
Bakers’ home, which Baker argued would cause the jury to
think that, since he has “this big nice house with a pole barn,
tractors, and all that stuff, therefore he must be stealing
money.” (App. at 442.)
       5
           Baker did not call Mrs. Baker to testify at trial.




                                 6
associated with his wife’s medical bills, though it did not allow
Mrs. Baker to discuss them.

       The jury found Baker guilty of violating § 641 by
stealing or embezzling public funds, and also convicted him of
related offenses in violation of 18 U.S.C. §§ 1001, 1519, and
2232.6 The District Court sentenced him to forty-two months’
imprisonment, to be followed by two years of supervised
release. Baker timely appealed.

II.    DISCUSSION7

       Baker argues on appeal that the District Court erred by
(1) refusing to instruct the jury on entrapment, (2) refusing to
instruct the jury that an intent to permanently deprive, as
opposed to temporarily deprive, the government of property is

       6
         Baker was found guilty of false statements, pursuant
to 18 U.S.C. § 1001, falsification of records in a federal
investigation, pursuant to 18 U.S.C. § 1519, and two counts of
destruction or removal of property to prevent seizure, pursuant
to 18 U.S.C. § 2232.
       7
          The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). We exercise plenary review
over a denial of a request for an entrapment instruction, United
States v. Dennis, 826 F.3d 683, 690 (3d Cir. 2016), and in
assessing whether a jury instruction stated the proper legal
standard, United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir.
1995). We review the District Court’s decision regarding the
admissibility of evidence for abuse of discretion. United States
v. Knight, 700 F.3d 59, 62 (3d Cir. 2012).




                               7
necessary to establish theft under § 641, and (3) excluding
Mrs. Baker’s testimony about her medical expenses. We
disagree with his contentions on all points.

       A.     The District Court did not err in refusing to
              instruct the jury on entrapment.

       Baker argues that the District Court erred in denying his
“request for an entrapment instruction despite there being
evidence to support one.” (Opening Br. at 13.) An entrapment
instruction is warranted when there is “inducement by the
government to commit the crime,” and “the defendant[] lack[s]
[the] predisposition to commit the crime.” United States v.
Dennis, 826 F.3d 683, 690 (3d Cir. 2016). “Under our
jurisprudence, to make an entrapment defense a defendant
must come forward with some evidence as to both inducement
and non-predisposition.” United States v. El-Gawli, 837 F.2d
142, 145 (3d Cir. 1988). At the least, Baker failed to carry his
burden with respect to inducement, and thus an entrapment
instruction was not warranted.

       Inducement is not “mere solicitation” or “merely
opening an opportunity for a crime[.]” Dennis, 826 F.3d at
690. Rather, “the defendant must show that law enforcement
engaged in conduct that takes the form of persuasion,
fraudulent representation, threats, coercive tactics, harassment,
promises of reward or pleas based on need, sympathy or
friendship.” Id. (internal quotations and citations omitted).

       There is, however, no evidence that the government did
anything of the sort here. At the outset, the FBI did not instruct
Bennage to set up a crime or organize a sting operation.
Bennage was simply asked to “keep [his] ear to the ground”




                                8
regarding Baker.8 (App. at 45.) The first theft, on
November 20, 2015, confirms that Baker, not Bennage, was
the orchestrator. Baker unexpectedly inserted himself into the
processing of a crime scene, texting and offering to help with
the evidence. Baker’s own testimony made clear that Bennage
did not influence or otherwise motivate the decision to steal on
that occasion. Instead, Baker’s motivation was:

       Being tired, not sleepy tired. Tired. Tired, tired
       mentally. Tired – I don’t remember what movie,
       but it was the Rocky movie that said, “Did you
       ever get punched in the face a thousand times? It
       starts to sting after a while.” Well, I was getting
       punched in the face, and I was tired.

(App. at 473.)

      Baker’s second theft, on December 16, 2015, likewise
does not present evidence of inducement. While that theft was
based on an FBI undercover operation, according to Baker’s
own testimony, his motivation was internal, stemming from
“ugly” thoughts and being “tired” and “weak.” (App. at 478.)


       8
            Moreover, according to Bennage, the FBI only
provided Bennage with a recording device after Baker had
expressed interest in “ripping off drug dealers.” (App. at 48.)
Baker offered a conflicting account at trial, claiming that his
recorded exchange with Bennage in September 2015 was the
first time they had discussed the idea to steal from drug dealers,
and that the suggestion to do so originated with Bennage. But
even if we disregarded the evidence indicating otherwise,
Baker’s testimony reveals no action taken by Bennage that
went beyond “mere solicitation[.]” Dennis, 826 F.3d at 690.




                                9
Baker testified, moreover, that Bennage did not harass or
persuade him to steal:

       Q: Officer Bennage wasn’t there with you
          saying, take that money, take that money,
          was he?
       A: No, sir.
       Q: That was your personal decision, correct?
       A: Yes, sir.

(App. at 495.) Baker’s actions, according to his testimony,
were the result of his own decision-making, and that decision-
making was, by his own admission, motivated by his mental
state, not inducement by the government. Cf. United States v.
Fedroff, 874 F.2d 178, 181 (3d Cir. 1989) (“Entrapment is a
relatively limited defense that may defeat a prosecution only
when the Government’s deception actually implants the
criminal design in the mind of the defendant.” (citations and
quotations omitted)).

       Baker thus failed to meet his burden of production with
respect to entrapment, and the District Court properly refused
his request for an entrapment instruction.

       B.     The District Court did not err in its
              instruction to the jury regarding specific
              intent.

       Baker argues that the District Court erred in refusing to
include a jury instruction that an “inten[t] to permanently
deprive another of their property [is necessary to demonstrate
a theft] and that [a] temporary deprivation [is] not
sufficient… .” (Opening Br. at 20.) That argument fails




                              10
because intent to permanently deprive is not an element of the
offense, and its absence is not a defense.

        Section 641 of Title 18 of the United States Code
prohibits the stealing of public money.9 “The Supreme Court
has made clear that … § 641 was designed to apply to not only
larceny and embezzlement but all instances … under which
one may obtain wrongful advantages from another’s property.”
United States v. Crutchley, 502 F.2d 1195, 1201 (3d Cir. 1974)
(citations and internal quotations omitted); see also Morissette
v. United States, 342 U.S. 246, 266 n.28, 266-67 (1952)
(describing the scope of § 641, and noting “that it was to apply
to acts which constituted larceny or embezzlement at common
law and also acts which shade into those crimes but which,
most strictly considered, might not be found to fit their fixed
definitions”). Accordingly, courts have followed that guidance
and concluded that intent to temporarily or permanently
deprive the government of its money satisfies the intent
element of § 641. See United States v. Dowl, 619 F.3d 494,


       9
         18 U.S.C. § 641 provides, in relevant part: “Whoever
embezzles, steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing of value of
the United States or of any department or agency thereof, or
any property made or being made under contract for the United
States or any department or agency thereof; or Whoever
receives, conceals, or retains the same with intent to convert it
to his use or gain, knowing it to have been embezzled, stolen,
purloined or converted… [s]hall be fined under this title or
imprisoned not more than ten years[.]”




                               11
500-01 (5th Cir. 2010) (collecting cases from the Fifth,
Seventh, Eighth, and Eleventh Circuits).10

       We have addressed the same issue with respect to a
similar statute, 18 U.S.C. § 661, and determined that “intent to
steal” does not require an intent that there be a permanent
deprivation.11 United States v. Henry, 447 F.2d 283, 284-86


       10
          To support his argument, Baker cites two cases. Both
are inapposite. The first merely re-states the statutory language
of 18 U.S.C. § 641. United States v. Dupee, 569 F.2d 1061,
1062 n.2 (9th Cir. 1978). Moreover, that case rejected an
argument similar to the one Baker now makes, that failing to
return government funds amounts to a temporary deprivation
or a “debtor-creditor relationship[,]” as opposed to
embezzlement. Id. at 1064. The second case does not support
Baker’s proposed characterization of intent either. On the
contrary, the court said, “[w]hen one wrongfully and
intentionally embezzles or misappropriates the property of
another … the offense is complete. The mere fact [that the
defendant] intends subsequently to return the property or to
make restitution to the rightful owner does not relieve his
wrongful act … . Hence, the mere fact that [a] defendant at a
subsequent date made restitution of the amount of the shortage
does not wipe out the offense.” United States v. Powell, 294
F. Supp. 1353, 1355 (E.D. Va. 1968), aff’d, 413 F.2d 1037 (4th
Cir. 1969).
       11
         18 U.S.C. § 661 provides, in relevant part: “Whoever,
within the special maritime and territorial jurisdiction of the
United States, takes and carries away, with intent to steal or
purloin, any personal property of another shall be
punished… .” That statute criminalizes the taking and carrying




                               12
(3d Cir. 1971). Following the Supreme Court’s lead, we said
that in “various federal statutes the word ‘stolen’ or ‘steal’ has
been given a meaning broader than larceny at common law.”
Id. at 285 (citation omitted); accord Morissette, 342 U.S. at
266 n.28, 266-67. We thus rejected the defendant’s argument
that the statute required “the intent to permanently deprive an
owner of his property” and held that a jury instruction requiring
simply “intent to deprive the owner of the benefit of
ownership” was appropriate. Henry, 447 F.2d at 284, 286.

       In short, “[a]n intent to return the property does not
exculpate the defendant.” United States v. Faulkner, 638 F.2d
129, 130 (9th Cir. 1981) (discussing 18 U.S.C. § 659); see also
Henry, 447 F.3d at 286. The crime is complete when the theft
or embezzlement of funds occurs. See United States v.
Duncan, 598 F.2d 839, 858 (4th Cir. 1979), cert. denied, 444
U.S. 871 (1979) (discussing 18 U.S.C. § 656, and stating that
“it is sufficient that the defendant at least temporarily
deprive[d] the [government] of the possession, control or use
of its funds” and that “[s]ubsequent restitution … is not a
defense since the crime [of embezzlement or theft] is complete
when the misapplication occurs”).

      Whether Baker told himself he was just borrowing the
government’s money is not relevant to his guilt. The jury was
appropriately instructed with respect to § 641.




away of personal property with the “intent to steal or purloin.”
Id.




                               13
       C.     The District Court did not err in refusing to
              allow Mrs. Baker’s testimony regarding her
              breast cancer and medical expenses.

        Finally, Baker argues that the District Court abused its
discretion by excluding the testimony of his wife regarding her
prior medical expenses. Baker sought to use that evidence for
two purposes. First, he said “it was evidence of [his] lack of
intent to permanently deprive the government of its property.”
(Opening Br. at 15.) Second, he thought it would rebut “the
false impression that he had stolen money to improve his
property[,]” an impression he feared was created by the
government’s introduction of pictures of his house.12 (Opening
Br. at 16.) But the District Court did not abuse its discretion in
excluding that evidence.

        Federal Rule of Evidence 401 provides that “[e]vidence
is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Thus, with
respect to Baker’s first stated purpose, because intent to
permanently deprive is not an element of the offense and an
intent to return is not a defense, evidence offered to prove those
points would be irrelevant. And, even if Mrs. Baker’s
testimony regarding her medical expenses were relevant, the


       12
           To the extent that Baker argues that Mrs. Baker’s
testimony about her medical expenses would have “supported
his defense” of entrapment, we are similarly unpersuaded.
(Opening Br. at 16.) Baker was not entitled to a jury instruction
of entrapment (even if that evidence had been offered to that
effect), so Mrs. Baker’s testimony for that purpose would have
been irrelevant and was rightly excluded.




                               14
District Court was within its discretion in deciding that the
probative value of such testimony was substantially
outweighed by danger that the testimony regarding her cancer
and medical expenses could mislead the jury due to
“sympathy” for her status as a cancer survivor. Fed. R. Evid.
403. (App. at 443.)

       Nor did the District Court err in excluding that
testimony despite the second proffered purpose, i.e., to rebut
the “insinuati[on] or … impression that [Baker] has this giant
house and all these luxury items in the house, [and that]
therefore he must be stealing.” (App. at 443.) Baker is correct
that his second purpose might be relevant to explaining or
otherwise providing context behind the improvements to his
home. Again, however, Federal Rule of Evidence 403
provides that a court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” In a Rule 403
analysis, we may take into account “the availability of other
means of proof” when considering whether such evidence
should be excluded. Old Chief v. United States, 519 U.S. 172,
184-85 (1997).

       Here, less prejudicial evidence was available to support
the same purpose. The District Court made clear that Mrs.
Baker could testify to “how they obtained the house, the whole
history with her mother and father … and how they got things
up until the relevant time here when those pictures were taken.”
(App. at 444.) Moreover, it also provided that Baker himself
could testify about his wife’s parents, their history with the
house, and his wife’s medical expenses. Given that Baker and




                              15
his wife were permitted to testify about their financial
difficulties, and Baker was able to testify about the medical
expense burden, the District Court provided him ample
opportunity to rebut whatever impression the Government’s
evidence may have given about Baker’s spending. The District
Court was within its discretion in deciding that any particular
benefit of Mrs. Baker’s testimony about her cancer-related
medical expenses was substantially outweighed by the risk of
understandable but irrelevant sympathy.

III.   CONCLUSION

      For the foregoing reasons, we will affirm the judgment
of conviction.




                              16
