                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 02 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30182

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00114-WFN-1

  v.
                                                 MEMORANDUM*
WAYDE LYNN KURT,

              Defendant - Appellant.


                 Appeal from the United States District Court
                    for the Eastern District of Washington
             Wm. Fremming Nielsen, Senior District Judge, Presiding

                       Argued and Submitted April 11, 2013
                               Seattle, Washington

Before: TASHIMA and CALLAHAN, Circuit Judges, and COLLINS, District
Judge.**

       Appellant Wayde Lynn Kurt appeals his conviction for possession of

firearms after a prior felony conviction in violation of 18 U.S.C. §§ 922(g)(1),

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.

                                          1
924. He argues that the district court erred by refusing to give entrapment

instructions, refusing to admit certain photographs and book excerpts, and applying

two sentencing enhancements. We review the district court’s decision on whether

a defendant has presented sufficient evidence to warrant an instruction and the

court’s evidentiary rulings for abuse of discretion. United States v. Spentz, 653

F.3d 815, 818 (9th Cir. 2011), cert. denied, 132 S. Ct. 1600 (2012); United States

v. Waters, 627 F.3d 345, 351-52 (9th Cir. 2010). “We review the district court’s

interpretation of the Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the

district court’s factual findings for clear error.” United States v. May, 706 F.3d

1209, 1212 (9th Cir. 2013) (internal quotation marks omitted). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

                                           I

      The district court found that no reasonable jury could conclude that Kurt was

entrapped and declined to give Kurt’s proposed entrapment instructions.

Generally, a defendant is entitled to an entrapment instruction if he or she presents

sufficient evidence of inducement and lack of predisposition such that a reasonable



      1
        Because the parties are familiar with the facts of the case, we repeat only
those facts necessary to explain our decision.

                                          2
jury could find in his or her favor. Spentz, 653 F.3d at 818. “Only slight evidence

will create the factual issue necessary to get the defense to the jury, even though

the evidence is weak, insufficient, inconsistent, or of doubtful credibility.” Id.

Regardless of whether Kurt presented sufficient evidence of lack of predisposition,

we conclude that he did not present sufficient evidence of inducement to warrant

the entrapment instructions.

      “Inducement is any government conduct creating a substantial risk that an

otherwise law-abiding person would commit a criminal offense.” United States v.

Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir. 2006) (internal quotation marks

omitted). It generally “take[s] the form of persuasion, fraudulent representations,

threats, coercive tactics, harassment, promises of [a non-criminal] reward, or pleas

based on need, sympathy or friendship.” Spentz, 653 F.3d at 820 n.4. Here, Kurt

admitted that the government informant did not induce him to use firearms through

threats, harassment, sympathy, or friendship. Instead, he suggested that the

informant persuaded him to do so by requesting that Kurt become the “armorer” of

a new extremist group and through “inaction” by failing to introduce Kurt to an

existing extremist group.

      In these circumstances, we note that the safer practice may have been to give

the instructions. We nonetheless conclude that even if Kurt’s testimony is credited,

                                           3
the informant’s alleged conduct was not inducement because it essentially

constitutes promises of a criminal reward. See Spentz, 653 F.3d at 820 n.4. Kurt

provided no evidence of government pressure or incentives that would prompt a

law-abiding person to commit the offense. Opportunity, alone, does not constitute

inducement and accordingly, the district court did not abuse its discretion.2

                                          II

      The district court excluded photographs of a victim of an assault by a group

of extremists because the photographs were “not necessary” in light of other

evidence about the assault. Although a defendant is generally entitled to defend

against the government’s accusations by presenting corroborative evidence, see

DePetris v. Kuykendall, 239 F.3d 1057, 1062-63 (9th Cir. 2001), the district court

did not abuse its discretion here. The district court was entitled to exclude the

photographs under Federal Rule of Evidence 403 because they were cumulative of




      2
         We recognize that mere association with members of an extremist group is
not illegal. We part ways with our dissenting colleague because the record here
demonstrates that the purpose of any such association would have been to carry out
illegal acts. Thus, even if we credit Kurt’s narrative, the government was not
attempting to take advantage of a non-criminal motive. The promise of joining a
criminal conspiracy cannot constitute inducement because it would not induce a
law-abiding person to commit a crime. Kurt’s uncommunicated, subjective
intentions once he joined the conspiracy are not relevant to whether the
government’s conduct induced him to possess firearms.

                                           4
the substantial testimony about the assault from both government and defense

witnesses and because any additional probative value was minimal.

                                          III

      The district court also excluded excerpts from extremist books because they

were irrelevant to entrapment, which was the sole issue in dispute. We agree with

the district court because the book excerpts did not make Kurt’s narrative any more

probable than the government’s narrative. Kurt may have referenced the ideas in

the books because – as he claimed – he was playing along with the informant to

obtain information about extremists so that he could protect the assault victim from

them. It is equally plausible, however, that Kurt was referring to those ideas

because – as the government claimed – he agreed with them and wished to carry

out some of the acts described in the books. Thus, the excerpts did not make any

consequential fact more or less probable than it would be in their absence, and the

district court did not abuse its discretion. See Fed. R. Evid. 401.

                                          IV

      The district court applied a four-level enhancement to Kurt’s base offense

level for possessing a firearm in connection with another felony under U.S.S.G. §

2K2.1(b)(6)(B). It found that although Kurt had no “specific plan as to exactly




                                           5
what was going to be done,” he had made so many references to violent or terrorist

acts that it was clear that he was making preparations to commit such an act.

       In United States v. Jimison, 493 F.3d 1148, 1149 (9th Cir. 2007) (citing

United States v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995)), we indicated that in

order for the enhancement to apply, the defendant “must have formed a firm intent

to use the gun for a felonious purpose.” In doing so, we cited the Second Circuit’s

decision in Dodge with approval. Id. (citing 61 F.3d at 146). In Dodge, 61 F.3d at

146-47, the Second Circuit affirmed the district court’s imposition of the

enhancement based on the defendant’s statements indicating that he intended to

blow up a structure with a bomb. In doing so, the district court rejected the

defendant’s suggestion that he merely intended to detonate the bomb “in the woods

for fun.” Id. at 147. Similarly, the district court did not abuse its discretion here

where Kurt made numerous statements indicating that he had a firm intent to

commit terrorist acts – any one of which would have been a felony – despite the

fact that they did not all relate to one, specific plan.

                                             V

       The district court also imposed a two-level enhancement for obstruction of

justice under U.S.S.G. § 3C1.1, finding that Kurt attempted to influence the

informant and provided false testimony. We have previously upheld a district

                                             6
court’s imposition of the enhancement where a defendant distributed an

informant’s cooperating agreement to third parties with the words “rat” and

“snitch” written on it. United States v. Jackson, 974 F.2d 104, 106 (9th Cir. 1992).

Here, Kurt attempted to contact a third party and urge him to “expose” the

informant and “derail the government agenda at every turn.” Without considering

whether Kurt provided false testimony, we find that the district court did not abuse

its discretion when it imposed the enhancement based on Kurt’s attempt to

influence the informant through a third party.

      AFFIRMED.




                                          7
                                                                            FILED
United States v. Kurt, No. 12-30182                                           JUL 02 2013

                                                                         MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring in part and dissenting in part:         U.S. COURT OF APPEALS



      I concur in the majority’s resolution of the evidentiary and sentencing issues,

but I disagree with its ruling on the defendant’s entitlement to an entrapment

instruction. In reaching its conclusion that Kurt was not entitled to an entrapment

instruction, the majority – like the trial court – improperly weighs the evidence and

makes credibility determinations, assessments which should be reserved for the

jury. I therefore respectfully dissent from Part I of the majority’s Memorandum.

      1.     Kurt’s only defense was entrapment. He testified that he had been a

white supremacist for several years but that, after witnessing the brutal beating of

an acquaintance, he renounced his allegiance to the movement. He then decided to

use his connections to monitor the activities and threat level of supremacist groups

in the region. Kurt became particularly concerned about an offshoot of the

Northwest Front, a leading white supremacist organization, after speaking with the

government informant. He testified that his primary motivation was to keep tabs

on the Northwest Front out of concern for Anthony Johnson, the man who had

been severely beaten. Kurt argued that he was eventually entrapped by the

informant into obtaining weapons.

      2.     The majority first concludes that any government inducement was

legally insufficient because it “essentially constitute[d] promises of a criminal
reward.” Memo. at 4.1 This conclusion misreads the record and draws an

impermissible factual inference. There is nothing illegal about joining a white

supremacy organization. More importantly, Kurt repeatedly testified that he never

intended to commit criminal acts with the Northwest Front.2 For example, Kurt

testified that he obtained a reloader3 so that he could “appear to be” part of the

group, but that he “had no inclination, [and] was playing a game.” He went on to

explain that the only reason he wanted to meet members of the group was to

“assess the threat that they would be to Anthony.” In short, under Kurt’s version

of the story, he was not motivated by the promise of further criminal activity.

Although the majority purports fully to credit Kurt’s testimony, it does just the




      1
             The majority assumes, as I do, that Kurt’s evidence was sufficient
under the second element required for an entrapment instruction, i.e., lack of
predisposition.
      2
              The majority parts way with this dissent “because the record here
demonstrates that the purpose of any such association would have been to carry out
illegal acts.” Memo at 4 n.2. But the majority can reach that conclusion only by
discrediting Kurt’s testimony to the contrary. It is not the court’s function to make
such credibility determinations when deciding whether an entrapment instruction is
warranted. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir. 2011) (holding
that “[o]nly slight evidence,” even “of doubtful credibility,” is “necessary to get the
defense to the jury”), cert. denied, 132 S. Ct. 1600 (2012).
      3
             A reloader is a machine for manufacturing ammunition.

                                          -2-
opposite when it discredits his alleged motives.4

      3.     The majority also concludes that there was “no evidence of

government pressure or incentives.” Memo. at 4. But this assertion ignores

substantial evidence in the record. As an initial matter, Kurt stated that the

informant repeatedly encouraged him to join the Northwest Front. More

importantly, he testified that the informant asked him to be the armorer5 for a

Northwest Front offshoot, to obtain a reloader, and to obtain firearms. Indeed,

Kurt testified that he had told the informant “on several occasions” that he was not

permitted to possess firearms, but that the informant nevertheless “continued to

encourage [him] to obtain weapons . . . on several occasions.” The informant had

also proposed – at the direction of the FBI – most of the meetings with Kurt, and



      4
              The majority’s error compounds the district court’s improper
credibility determinations. Prior to denying the entrapment instruction, the district
court engaged in a lengthy weighing of the evidence that included numerous
credibility determinations. For example, the district court stated that “it seems that
the ruse or the story that he now says he made up when he was talking to the
confidential informant really isn’t credible,” and generally described Kurt’s story
as “not credible.” By applying the wrong legal standard, the district court
necessarily abused its discretion. See United States v. Gurolla, 333 F.3d 944, 956
(9th Cir. 2003) (“The credibility of the defendant’s explanations is a matter for the
jury to determine.”); United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013)
(holding that the district court abused its discretion when it applied the wrong legal
standard to determine if the requested instruction was warranted).
      5
             There is nothing illegal in being an “armorer.”

                                          -3-
had proposed the target shooting trip that led to Kurt’s arrest.

      The majority might not think this evidence amounts to “pressure” or

“persuasion,” but that question was for the jury to decide. As the majority

recognizes (but fails to heed), “[o]nly slight evidence will create the factual issue

necessary to get the defense to the jury, even though the evidence is weak,

insufficient, inconsistent, or of doubtful credibility.” United States v. Spentz, 653

F.3d 815, 818 (9th Cir. 2011). Finally, although the informant denied having

encouraged Kurt to obtain firearms, this contradiction simply creates a dispute of

fact.6 See United States v. Kessee, 992 F.2d 1001, 1004 (9th Cir. 1993) (“[S]ince

Kessee testified under oath to an account which, if true, could justify a finding of

entrapment, he established a genuine issue of fact.”).

                                         •!•

      Where a defendant, such as Kurt, raises only a single defense, the district

court should be especially vigilant about protecting the due process right to present

that defense. Rather than safeguarding this right, the district court effectively

      6
              Kurt’s defense was plausible in part because his first two meetings
with the informant were not recorded. During the subsequent recorded
conversations, Kurt spoke freely about obtaining firearms and other criminal
activity. But the crux of his defense was that the informant had persuaded him,
during the first two unrecorded conversations, to engage in criminal conduct. Thus
his defense turned, in part, on a credibility contest between him and the informant
about what was said during the first two conversations.

                                          -4-
entered a directed verdict for the government. See Bradley v. Duncan, 315 F.3d

1091, 1099 (9th Cir. 2002) (“[T]he refusal to instruct on entrapment deprived

Bradley of his only defense and, as a result, of due process.”); see also United

States v. Wuliger, 981 F.2d 1497, 1503 (6th Cir. 1992) (failing to instruct on only

defense was plain error, and “tantamount to directing a verdict against the

defendant”). In light of the evidence summarized above, the district court abused

its discretion in refusing to give an entrapment instruction.

      Because I would reverse the judgment of the district court and remand for a

new trial, I respectfully dissent.




                                          -5-
