                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0021n.06

                                          No. 13-3882
                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                        Jan 07, 2015
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
                                                               ON APPEAL FROM THE
v.                                                         )
                                                               UNITED STATES DISTRICT
                                                           )
                                                               COURT FOR THE
DONTE BOOKER                                               )
                                                               NORTHERN DISTRICT OF
                                                           )
                                                               OHIO
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: MCKEAGUE and KETHLEDGE, Circuit Judges; HOOD, District Judge.*

       KETHLEDGE, Circuit Judge. Cleveland police officers and an ATF agent tricked Donte

Booker into attempting to possess cocaine with the intent to sell it, in violation of 21 U.S.C.

§§ 841 and 846. Booker appeals his conviction, arguing that the government entrapped him as a

matter of law. Booker also argues that the district court should have allowed the jury to hear

evidence about his wrongful conviction for an unrelated rape. We affirm.

                                                      I.

       Booker served 17 years in prison for a 1987 rape he did not commit. After his release, a

DNA test proved his innocence and the convictions were vacated. Ohio later paid Booker

$618,000 to settle his wrongful-conviction lawsuit.




*
 The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
United States v. Booker
No. 13-3882

       The sting operation at issue here took place several years later. In October 2012 an

informant, Daisetta Harris, told Cleveland Detective Todd Clark that Booker had asked her to

help him rob drugs and money from stash houses. Detective Clark set up a sting operation to

catch Booker. At Detective Clark’s behest, Harris told Booker that she knew two people who

might be willing to help with a robbery: a woman named Angelique, and Angelique’s drug-

courier boyfriend, Andre.

       Harris later introduced Booker to “Angelique” (an undercover policewoman) at a meeting

in a dark parking lot outside of a local Burger King. Booker told the officer and Harris “that he

was a professional,” and that he “didn’t want to deal with any amateurs.” R. 70 at 10-11.

Booker’s “profession,” he said, was robbing drug dealers.          Booker later met “Andre” (an

undercover ATF agent). Andre agreed to tell Booker where he was delivering drugs. Booker

proposed to follow Andre to a hotel and rob him. Booker told Andre that, during the robbery,

Booker would pistol whip him, duct tape him, and put him in the trunk of Booker’s car, so that

Andre’s boss would not suspect him of involvement in the heist. R. 69 at 187. Booker also said

that, if necessary, he “would kill anybody up in this bitch.” R. 70 at 14.

       Andre’s real bosses at the ATF were concerned about his safety, so Detective Clark

arranged a new plan to avoid potential violence. Harris and Angelique met with Booker again;

this time Angelique told Booker that Andre would leave ten kilograms of cocaine in an unlocked

car in a hotel parking lot. Then, Booker could simply walk up to the car and take the drugs.

Booker agreed to the new plan. He also told Angelique that he already had a buyer lined up for

the cocaine, so selling it would be no problem. R. 70 at 16-17.

       The police set up surveillance at a La Quinta Inn parking lot, and put a duffel bag with

ten kilograms of fake cocaine in a black Chevy Avalanche. Harris called Booker and told him


                                                 2
United States v. Booker
No. 13-3882

everything was ready. After darkness fell, Booker drove to the hotel and scouted the lot. He

parked, ran to the Avalanche, took out the bag of fake drugs, and ran back to his car. Then, a

SWAT team moved in. Booker tried to escape, but he crashed his car into a snow bank. He then

fled on foot onto a busy freeway, but a policeman caught up with him, moved him off the

freeway, and arrested him.

       Booker was indicted for attempted possession of cocaine with intent to distribute. Before

trial, the government moved to exclude evidence about Booker’s exoneration in the 1987 rape

case. R. 22. The district court granted the motion, but said that its ruling was “interim.” R. 69

at 2. The court added that it would revisit the issue if Booker could convince the court that the

exoneration was relevant to the drug charge. Id.

       At trial, the prosecution played audio and video recordings of Booker’s meetings with the

undercover agents. Booker testified that he was merely acting out scenes from one of his

favorite movies. R. 51 at 22, 27-28. Booker also testified that the robbery was Harris’s idea, and

that she had repeatedly called him and urged him to participate. Id. at 20-21, 25-30. The jury

ultimately convicted Booker, and he was sentenced to 200 months’ imprisonment. This appeal

followed.

                                                    II.

                                                    A.

       Booker first argues that the district court should have granted his motion for acquittal

because he was entrapped as a matter of law. Booker made the motion after the close of the

government’s case, but he failed to renew the motion at the end of the trial. Thus, we will

reverse the district court only if necessary to correct a “manifest miscarriage of justice.” United




                                                3
United States v. Booker
No. 13-3882

States v. Damra, 621 F.3d 474, 494 (6th Cir. 2010) (quotation marks omitted). Under this

standard, we affirm unless “the record is devoid of evidence pointing to guilt.” Id.

       To prove entrapment, a defendant must show both that the government induced the crime

and that he lacked the predisposition to commit it. United States v. Al-Cholan, 610 F.3d 945,

950 (6th Cir. 2010). If a defendant shows inducement, the burden shifts to the government to

prove predisposition beyond a reasonable doubt. See Jacobson v. United States, 503 U.S. 540,

548-49 (1992).     The ultimate question is whether the government implanted a criminal

disposition in the mind of an “unwary innocent,” or instead merely tricked an “unwary criminal.”

United States v. Harris, 9 F.3d 493, 497 (6th Cir. 1993). Entrapment is usually a jury question:

a defendant is entrapped as a matter of law only when the facts are “undisputed” and demonstrate

a “patently clear absence of predisposition.” Id. at 497-98 (quotation marks omitted).

       Here, setting aside the question of inducement, we ask whether Booker was predisposed

to possess and distribute cocaine. Booker told Harris and the undercover officers that he robbed

stash houses for a living, and that he would have no problem selling the stolen drugs. R. 69 at

128, R. 70 at 10-11. Harris testified that, in her first meeting with Booker—which was supposed

to concern identity theft—Booker first brought up the idea of robbing a drug house. R. 69 at

128-29. The undercover officer who posed as Angelique testified that Booker was impatient to

carry out the robbery and frustrated by delays. R. 70 at 17. In short, a great deal of evidence at

trial suggested that Booker was predisposed to possess and sell cocaine. Thus, the district court

properly denied Booker’s motion for acquittal. Harris, 9 F.3d at 497-98.

                                                    B.

       Booker also argues that the district court should have denied the government’s motion to

exclude evidence of his exoneration in the rape case. Normally, we review a district court’s


                                                4
United States v. Booker
No. 13-3882

evidentiary rulings for an abuse of discretion. United States v. Poulsen, 655 F.3d 492, 510 (6th

Cir. 2011). If before the trial a district court excludes evidence on a temporary or conditional

basis, however, the losing party must attempt to introduce that evidence at trial to preserve the

issue for appeal. Poulsen, 655 F.3d at 510 (losing party must object at trial after conditional

denial of motion in limine); Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003). Here, the

district court said that its ruling was “interim,” and invited Booker to “approach the bench and

try to get a different ruling” during trial if Booker still believed the evidence was relevant. R. 69

at 2. Booker never accepted the district court’s invitation, so he forfeited this argument. Thus,

we review only for plain error. See Crowe, 334 F.3d at 133. The exclusion was plain error if,

among other requirements; the alleged error was clear and affected the outcome of the trial.

United States v. Lawrence, 735 F.3d 385, 401 (6th Cir. 2013).

       The district court held that evidence of Booker’s exoneration for the 1987 rape charge

was not relevant to any issue in his trial. Under Federal Rule of Evidence 401, evidence is

relevant if “it has any tendency to make a fact more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Irrelevant evidence is inadmissible under Rule 402. Id. at 402.

       Here, Booker contends that his exoneration was relevant to the predisposition element of

his entrapment defense. Specifically, he says that the large sum of money he received as a result

of the exoneration is relevant to the question whether he was motivated by profit. The amount of

money Booker had is indeed relevant to that question; but the source of the money is not. And

nothing in the district court’s ruling prevented Booker from presenting evidence about the

amount of money he had. As for the exoneration itself, it establishes only that Booker was

innocent of a rape in 1987; it says nothing about his predisposition to commit a drug crime in




                                                 5
United States v. Booker
No. 13-3882

2013. Thus, the exoneration was inadmissible, and the district court did not plainly err in

excluding it.

       Finally, Booker argues that excluding the exoneration violated his constitutional right to

present a meaningful defense. See United States v. Blackwell, 459 F.3d 739, 752-53 (6th Cir.

2006). But a defendant’s right to present a meaningful defense does not include a right to

present evidence that is “inadmissible under standard rules of evidence.” Id. at 753 (quotation

marks omitted). Here, as shown above, Booker’s exoneration was inadmissible under Rule 402,

so this argument is meritless as well.

       The district court’s judgment is affirmed.




                                                6
