                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 20a0334n.06

                                          No. 19-6176

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                 FILED
                                                                                 Jun 09, 2020
 UNITED STATES OF AMERICA,                              )                    DEBORAH S. HUNT, Clerk
                                                        )
           Plaintiff-Appellee,                          )
                                                        )
                                                               ON APPEAL FROM THE
                  v.                                    )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE WESTERN
 JONATHAN EDWARD WHITE,                                 )
                                                               DISTRICT OF TENNESSEE
                                                        )
           Defendant-Appellant.                         )
                                                        )



BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Jonathan White gave an undercover law enforcement agent a makeshift

explosive device that he created. Afterwards, the government charged him with various offenses

related to unlawfully making, possessing, and transferring a firearm.1        White pursued an

entrapment defense, and to support it, he wanted to present evidence concerning (1) the genesis of

the government’s investigation of him and (2) his grievances against government officials. The

district court, however, excluded the evidence as irrelevant. The jury then convicted White on

each count, and the district court entered judgment against him. On appeal, defendant argues that

the district court’s exclusion of his proposed evidence violated his constitutional right to a



       1
          26 U.S.C. § 5845(a) defines firearms to include “destructive device[s].” Further, the
statutory definition of destructive devices encompasses “any explosive . . . bomb.” 26 U.S.C.
§ 5845(f). Accordingly, “[a] pipe bomb is a firearm under the statute.” United States v. Bidlack,
No. 79-5310, 1980 U.S. App. LEXIS 15434, at *5 (6th Cir. July 24, 1980).
No. 19-6176, United States v. White


meaningful opportunity to present a complete defense. For the reasons expressed below, we

disagree and affirm.

                                                I.

        Vance Dennis—an assistant district attorney for Tennessee’s 24th Judicial District—orally

requested that the Tennessee Bureau of Investigations (the Bureau) investigate White. The Bureau

agreed and sent two agents to a property adjacent to White’s to conduct surveillance. One of the

agents, Joseph Hudgins, “was posing as [an] electrical contractor” and appearing to “work[ ] on

flood light[s].” That afternoon, Hudgins and White struck up a conversation.

        Eventually, Hudgins “b[r]ought up . . . having an issue with beaver dams at a family farm,”

and discussed potentially shooting the beavers to see if White would mention explosive devices as

a way to destroy the dams. After more discussion, White gave the agent an explosive device made

from firecrackers, gun powder, a candle, an end cap, and duct tape. Eventually, White was

arrested.

        The United States indicted White for several firearm offenses that arose out of his

manufacture, possession, and transfer of the explosive device, commonly known as a pipe bomb.

Before trial, defendant issued a subpoena to Assistant District Attorney Dennis. White sought to

have Dennis testify to the origins of the investigation. According to defendant, that testimony

would have been relevant to his entrapment defense. The State of Tennessee moved to quash the

subpoena. The district court granted the motion, concluding that Dennis’s proposed testimony was

irrelevant.




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         During trial, defendant’s attorney told the district court that he anticipated defendant

testifying—in support of his entrapment defense—about various grievances he had filed against

government officials. The district court ruled that White was not permitted to present his grievance

evidence because it was not relevant to his entrapment defense.

         The jury found defendant guilty on all counts in the indictment. The district court

sentenced White to twenty months of imprisonment on each count, to be served concurrently,

followed by three years of supervised release. Defendant timely appeals.

                                                 II.

         We review interpretations of the Constitution de novo. See United States v. Blackwell, 459

F.3d 739, 752 (6th Cir. 2006). And “we review all challenges to district court evidentiary rulings,

including constitutional challenges, under the abuse of discretion standard.” Id. “[T]he abuse of

discretion standard is not at odds with de novo interpretation of the Constitution inasmuch as [the]

district court does not have the discretion to rest its evidentiary decisions on incorrect

interpretations of the Constitution.” Id. (emphasis omitted). “A district court abuses its discretion

when it relies on clearly erroneous findings of fact, improperly applies the law, or uses an

erroneous legal standard.” Bormuth v. Cty. of Jackson, 870 F.3d 494, 502 (6th Cir. 2017) (en

banc).

                                                 III.

                                                 A.

         Defendant contends that the district court denied him his right to “a meaningful opportunity

to present a complete defense” by excluding proposed evidence. Rockwell v. Yukins, 341 F.3d

507, 512 (6th Cir. 2003) (en banc) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).

However, “the Supreme Court has made it perfectly clear that the right to present a ‘complete’



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defense is not an unlimited right to ride roughshod over reasonable evidentiary restrictions.” Id.

“A defendant ‘does not have an unfettered right to offer testimony that is incompetent, privileged,

or otherwise inadmissible under standard rules of evidence.’” Id. (quoting Taylor v. Illinois, 484

U.S. 400, 410 (1988)).

       Defendant claims that the district court abused its discretion by improperly applying the

law when it excluded evidence that he wanted to use for his entrapment defense as irrelevant. The

initial question, therefore, is whether the district court misapplied the Federal Rules of Evidence

and therefore abused its discretion by excluding the proposed evidence as irrelevant. As we

explain below, we hold that it did not.

                                                B.

       “A valid entrapment defense requires proof of two elements: (1) government inducement

of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal

activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002); see also Mathews v. United

States, 485 U.S. 58, 63 (1988).

       An improper inducement occurs when the government “repeated[ly] and persistent[ly]

solicit[s]” a person to commit a crime. Sorrells v. United States, 287 U.S. 435, 441 (1932); see

also United States v. Dixon, 396 F. App’x 183, 186 (6th Cir. 2010) (“An ‘inducement’ consists of

an ‘opportunity’ plus something else—typically, excessive pressure by the government upon the

defendant or the government’s taking advantage of an alternative, non-criminal type of motive.”

(quoting United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994))). The predisposition inquiry

involves assessing whether a defendant was “inclin[ed] to commit the crime with which he is

charged.” United States v. Kussmaul, 987 F.2d 345, 349 (6th Cir. 1993); Predisposition, Black’s

Law Dictionary (11th ed. 2019) (“A person’s inclination to engage in a particular activity; esp., an


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No. 19-6176, United States v. White


inclination that vitiates a criminal defendant’s claim of entrapment.”). To determine whether the

defendant was predisposed to commit the charged crimes, the following factors are pertinent:

       (1) the character or reputation of the defendant; (2) whether the suggestion of the
       criminal activity was originally made by the government; (3) whether the defendant
       was engaged in criminal activity for a profit; (4) whether the defendant evidenced
       reluctance to commit the offense but was overcome by government persuasion; and
       (5) the nature of the inducement or persuasion offered by the government.

United States v. Nelson, 922 F.2d 311, 317 (6th Cir. 1990).

                                                 IV.

                                                  A.

       Defendant contends that the district court abused its discretion when it excluded his

grievance evidence. We disagree.

       “Evidence 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.”

Fed. R. Evid. 401; United States v. Chalhoub, 946 F.3d 897, 905 (6th Cir. 2020). The fact of

consequence here is whether defendant was predisposed to commit the crimes with which he was

charged. See United States v. Clark, 957 F.2d 248, 250 (6th Cir. 1992) (“The question of

entrapment is generally one of fact . . . .”). Therefore, for the grievance evidence to be relevant, it

would have to have a tendency to make it more or less probable that defendant was inclined to

commit the offenses with which he was charged. Kussmaul, 987 F.2d at 349 (observing that in the

entrapment context, predisposition is the defendant’s “inclination to commit the crime with which

he is charged”). White’s criticisms of government officials, however, say nothing about whether

he was more or less likely to be inclined to build, possess, or transfer pipe bombs. Thus, the

grievance evidence was irrelevant, and the district court did not abuse its discretion by excluding

it.



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No. 19-6176, United States v. White


        White argues that the grievance evidence bears on the character and reputation factor. But

even if there were some relationship between defendant’s criticisms of government officials and

his character, he has not explained how that relationship, in turn, suggests that it is more or less

likely that he was inclined to commit the crimes with which he was charged. That lack of a causal

connection renders defendant’s argument unpersuasive.

                                                  B.

        Defendant also contends that the district court abused its discretion when it excluded the

investigation evidence. We are not persuaded.

        For the investigation evidence to be relevant, it would have to have a tendency to make it

more or less probable that White was inclined to commit the offenses with which he was charged.

Id. The reason the government began its investigation of White, however, is unrelated to White’s

inclination to build, possess, or transfer pipe bombs; therefore, it is irrelevant. Cf. United States v.

Robinson, 763 F.2d 778, 783 (6th Cir. 1985) (“In our view, the government’s motive is irrelevant

to [the predisposition] issue . . . because even assuming that the government wanted to entrap

[defendant], this motive would not affect [defendant’s] ‘readiness and willingness’ to commit the

crime.” (citations omitted)). White argues that the investigation evidence is pertinent to the nature-

of-the-inducement factor, but his arguments are unavailing.

        The nature-of-the-inducement factor concerns the means the government used to persuade

its target to violate the law. See United States v. Barger, 931 F.2d 359, 361, 367 (6th Cir. 1991)

(observing that the “nature of the government’s inducement was” how the government encouraged

its target to violate the law, i.e., an FBI informant told the target about a fictional plan “to blow up

the Outlaws[ ] [Motorcycle Club’s] clubhouse”); United States v. Wilson, 653 F. App’x 433, 439–

40 (6th Cir. 2016) (analyzing the nature-of-the-inducement factor by considering the methods the


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No. 19-6176, United States v. White


government used to encourage the target to break the law). White, however, does not adequately

connect the investigation evidence to how the government attempted to persuade him to commit

crimes. First, he suggests that “the proffered evidence might have helped explain” why the agent

was “investigating threats about the use of explosive devices.” But the government’s motive for

investigating White would not have revealed anything about the means the government used to

persuade him to break the law; therefore, it is not a pathway to relevance. Second, defendant

claims that the “[t]estimony regarding the request for investigation could have helped explain why

Hudgins chose a story of sympathy due to beaver dam damage to induce Mr. White.” Why the

government’s agent chose one type of story is not a germane question. Whether and how the agent

induced a criminal act are pertinent questions, but the investigation evidence would not have shed

light on them. Accordingly, the district court properly applied the law by excluding the irrelevant

investigation evidence, and we discern no abuse of discretion.

                                                  V.

        A criminal defendant has a constitutional right to “a meaningful opportunity to present a

complete defense.” Rockwell, 341 F.3d at 512 (quoting Crane, 476 U.S. at 690). But that does

not confer “an unfettered right to offer testimony that is . . . inadmissible under standard rules of

evidence.” Id. (quoting Taylor, 484 U.S. at 410). Here, White’s desired evidence was inadmissible

(because it was irrelevant), so the district court did not violate his constitutional rights by excluding

it.

                                                  VI.

        For these reasons, we affirm the district court’s judgment.




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No. 19-6176, United States v. White


       KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree with

the majority that the district court’s evidentiary rulings did not constitute an abuse of discretion.

I write separately to note that White’s appeal does not fail based on any bright-line rule holding

that evidence of the government’s motive is, by definition, irrelevant to the entrapment defense.

Although the district court did not abuse its discretion in excluding such evidence in this case,

I explain below why evidence of the government’s improper motive could be relevant to a

defendant asserting the entrapment defense.

       In most cases, without question, evidence of the government’s motive will be irrelevant to

an entrapment defense. See United States v. Webster, 649 F.2d 346, 351 (5th Cir. 1981) (en banc)

(“[I]n the run-of-the-mill entrapment case where no such special circumstances are present,

evidence of good faith, motive and reasonableness of the government is . . . of little if any

significance and the prejudice will outweigh any probative value.”). As the Supreme Court

explained in Hampton v. United States, 425 U.S. 484 (1976), “We [have] ruled out the possibility

that the defense of entrapment could ever be based upon governmental misconduct in a case, such

as this one, where the predisposition of the defendant to commit the crime was established.” Id. at

488–89 (emphasis added). That the government’s motive will usually be irrelevant to the

entrapment defense makes sense for two reasons. First, regardless of its motive, the government

may not have, in fact, induced the defendant. Second, a defendant’s predisposition to commit the

offense will usually exist independently from the government’s conduct, let alone its motive.

       This leaves open, however, the possibility that evidence of the government’s motive could

theoretically be relevant to an entrapment defense when the defendant’s predisposition has not

been established and there is evidence of improper inducement. Cf. Rossetti v. United States,

773 F.3d 322, 331 (1st Cir. 2014) (“[T]he FBI’s possible motive to entrap a person is of no moment


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No. 19-6176, United States v. White


in a case such as this one where there is predisposition and no evidence of improper inducement.”)

(emphasis added). Put simply, evidence of the government’s improper motive could make it more

likely that the government engaged in improper inducement, which itself could make it more likely

that the defendant lacked predisposition.

       The potential relevance of such evidence is apparent even in White’s case, because it

involved a dispute over whether he was induced and whether he was predisposed to committing

the crime. As to the dispute over inducement, Agent Hudgins testified that after he mentioned

problems with a beaver dam, White immediately offered to help him and returned minutes later

with a bomb. See Appellee Br. at 6. In sharp contrast, White testified that Hudgins repeatedly

appealed to White’s sympathies by lying about the devastation Hudgins’s farm would face if White

did not help him, and that White relented only after Hudgins asked him for help four times. See

Appellant Br. at 3–5. The jury was left to decide whose story to believe. If White had been

permitted to introduce compelling evidence of the government’s desire to retaliate against him,

this could have made it more likely that the government agent overstepped his bounds and

unlawfully induced White to commit a crime. There is, of course, a rejoinder to this line of

reasoning: Wouldn’t Agent Hudgins have been just as likely to overstep his authority and

unlawfully induce the crime if he were simply an overzealous agent pursuing legitimate law-

enforcement objectives? Why would a retaliatory motive make it more likely that he would

unlawfully induce White’s commission of the crime? These are fair objections, but a district court

could, within its broad discretion, reasonably conclude that an agent motivated by an illicit

objective (i.e. retaliation) is more likely to engage in illicit inducement than an agent motivated by

a legitimate objective. The opposite conclusion by a district court may be acceptable, too. But no

bright-line rule prohibits a district court from concluding that improper motive may make improper


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No. 19-6176, United States v. White


inducement more likely. This means that evidence of the government’s motive may be relevant

to proving government inducement of the crime.

       Moving to lack of predisposition, if White had been able to demonstrate—based in part on

evidence of the government’s retaliatory motive—that inducement had occurred, this could have

made it more likely that he lacked predisposition to commit the crime. This proposition has a clear

basis in entrapment doctrine, including in our own caselaw. We have explicitly regarded “the

nature of the inducement or persuasion supplied by the Government” as one factor to consider in

“determining a defendant’s prior disposition.” United States v. McLernon, 746 F.2d 1098, 1112

(6th Cir. 1984) (quoting United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir. 1983)). As the

Eighth Circuit has explained, “[t]he two inquiries are often closely linked, because the need for

greater inducement may suggest that the defendant was not predisposed to commit the crime; and

conversely, a ready response to minimal inducement indicates criminal predisposition.” United

States v. Myers, 575 F.3d 801, 805 (8th Cir. 2009). Here, for example, if the government had to

go to such extreme lengths to persuade White, the jury may have been more likely to conclude that

White was not predisposed to committing the crime.

       Given that entrapment deals with the government’s objective conduct and the defendant’s

subjective state, evidence of the government’s motive may seem irrelevant to this defense on an

intuitive level. But relevant evidence “has any tendency to make a fact more or less probable than

it would be without the evidence.” Fed. R. Evid. 401. Evidence of an improper motive could have

a tendency to make improper inducement more probable than it would be without such evidence.

And such inducement could make it more probable that the defendant lacked predisposition to

commit the crime. Neither the Supreme Court nor this court has deemed evidence of the




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No. 19-6176, United States v. White


government’s motive to be irrelevant as a matter of law,1 and other courts have at least suggested

the potential relevance of such evidence. See, e.g., United States v. Disla, 358 F. App’x 121, 133

(11th Cir. 2009) (“[T]he district court adequately allowed Disla to present evidence of the

government’s alleged bias and retaliatory motive in connection with his entrapment defense.”).

       To be clear, the resolution of this case does not turn on this issue. The district court acted

within its discretion in concluding that the evidence that White wished to present would present a

confusing “side issue.” R. 50 (Trial Tr. I at 54) (Page ID #286). And even if the district court

erred in excluding the evidence, its error was harmless in light of ample evidence demonstrating

White’s predisposition to commit the offense. But it should be emphasized that White’s appeal

fails for these reasons, not due to any bright-line rule that evidence of the government’s improper

motive is per se irrelevant to the entrapment defense.




       1
         The line in United States v. Robinson, 763 F.2d 778 (6th Cir. 1985), quoted by the
majority, see Maj. Op. at 6, does not establish a bright-line rule that, in all cases, evidence of the
government’s motive must be regarded as irrelevant to entrapment. Since its issuance in 1985,
Robinson has never been cited in a published decision as having established a bright-line rule
excluding evidence of the government’s motive as irrelevant to entrapment. Instead, the quoted
sentence explains why in Robinson’s factual context, the government’s motive did not affect the
defendant’s predisposition. Furthermore, even if one construed Robinson as applying more
broadly, the panel did not consider the possibility that government motive may make a showing
of inducement—not lack of predisposition—more likely. See Robinson, 763 F.2d at 783 (“[T]he
government’s motive is irrelevant to this issue [predisposition].”).
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