                                                               NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 11-3588
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                DANNY TOLENTINO,
                               a/k/a Dalmacio Tolentino,

                                                Appellant

                                    _____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. No. 2-09-cr-00484-002)
                        District Judge: Hon. William J. Martini
                                    _____________

                       Submitted under Third Circuit LAR 34.1(a)
                                    June 22, 2012

            Before: AMBRO, VANASKIE and ALDISERT, Circuit Judges

                                  (Filed: July 5, 2012)
                                    _____________

                              OPINION OF THE COURT
                                  _____________

ALDISERT, Circuit Judge.

      In 2011 Dalmacio “Danny” Tolentino was found guilty of four drug trafficking

charges and was sentenced to thirty-eight months‟ incarceration and five years‟


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supervised release. He appeals from the United States District Court for the District of

New Jersey‟s final judgment. Tolentino‟s basic contention is that the District Court failed

to raise the outrageous government conduct defense sua sponte, and that its failure

constituted a violation of Appellant‟s rights assured by the Due Process Clause.

       Because we write primarily for the parties, who are familiar with the facts and the

proceedings in this case, we will revisit them only briefly.

       In early 2007 Luis Fernando Arcila Fajardo, the government‟s confidential

informant, introduced himself to Tolentino, the Appellant, at Tolentino‟s barbershop in

Passaic, New Jersey. Arcila told Tolentino that he could smuggle drugs through the

Newark airport but that he did not have access to any drugs, soliciting Tolentino‟s help.

The two continued to see each other regularly at the barbershop, but the first time Arcila

ever recorded one of their conversations was a year-and-a-half later.

       On June 25, 2009, Tolentino was charged with conspiring to distribute and possess

with intent to distribute five kilograms or more of cocaine, to which he pled guilty on

November 13, 2009. Tolentino subsequently sought to withdraw his plea. On December

17, 2010, the District Court granted Tolentino‟s motion to withdraw. The government

subsequently charged him with conspiring to import over five kilograms of cocaine,
conspiring to distribute and possess with intent to distribute over five kilograms of

cocaine, aiding in the importation of cocaine, and knowingly attempting to distribute and

possess with intent to distribute over five kilograms of cocaine.

       Tolentino‟s conviction was based largely on the testimony of, and recordings

made by Arcila, the government‟s confidential informant. During one of the recorded

conversations, which took place on the same block as the barbershop, Tolentino can be

heard discussing potential prices and buyers for drugs. Arcila testified also that Tolentino



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introduced him to “Willy,” a person involved in the drug trafficking business who was

able to purchase the drugs and arrange for their transport to the United States.

       From 2004 until 2011, Arcila was paid $60,000 as compensation for his work as a

confidential informant, $12,000 of which was for his work on Tolentino‟s case. Federal

authorities have deferred Arcila‟s deportation seven times since 2004, and have taken

steps to prevent his mother and brother from being deported as well. The Department of

Homeland Security has also sponsored an S-Visa application for Arcila, which will make

it possible for him to gain permanent resident status in the United States, notwithstanding

his past felony convictions.

       Tolentino presented a theory of entrapment at trial, which the jury rejected, finding

him guilty on four drug trafficking counts. Tolentino moved for a judgment of acquittal,

again arguing that he was entrapped. The Court denied this motion and eventually

sentenced him to 38 months‟ imprisonment. Tolentino timely appealed.1

                                             II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on whether

Tolentino waived the defense of outrageous government conduct at trial. See Rule 12 (e),
Federal Rules of Criminal Procedure; United States v. Pitt, 193 F.3d 751, 760-761 (3d

Cir. 1999). We review unraised claims for plain error. See Rule 52(b); Pitt, 193 F.3d at

760.
                                            III.

       We conclude that Tolentino waived this defense of outrageous government

conduct by not raising it before his trial began. Because Tolentino‟s claim would have

1
  Tolentino did not raise the outrageous government conduct defense before or during his
trial.

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also failed on its merits, the District Court did not err when it failed to raise this defense

sua sponte and dismiss Tolentino‟s charges. We will therefore affirm the District Court‟s

judgment.

                                                A.

       An outrageous government conduct defense “examines whether a defendant‟s due

process rights have been violated because the government created the crime for the sole

purpose of obtaining a conviction.” Pitt, 193 F.3d at 759-760. The defense is “based on

an alleged defect in the institution of the prosecution itself,” and is thus covered under

Rule 12(b) of the Federal Rules of Criminal Procedure. Id. at 760. A defendant waives

the ability to raise an outrageous government conduct defense if it is not raised before the

trial begins. Because it is undisputed that Tolentino failed to raise this defense prior to his

trial, we hold that he waived his right to bring it before us on appeal.

       Rule 12(e) contains an excuse of waiver if the defendant can show “good cause”

for failing to make a timely 12(b) motion. United States v. Rose, 538 F.3d 175, 184-185.

For example, we have held that a defendant did not waive his ability to raise an

outrageous government conduct claim on appeal because “it may have been too late for

[him] to make a Rule 12(b) motion when [he was] given the information [relating to the

claim].” United States v. Gonzales, 927 F.2d 139, 144 (3d Cir. 1991). But an excuse of

waiver should be granted only if “compliance with the procedural requirement [was]

virtually impossible.” Pitt, 193 F.3d at 760.

       Tolentino has asserted no justification as to why he failed to raise this defense in a

timely manner. Indeed, he provided the same facts here on appeal as he did for his


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entrapment defense at trial. Tolentino has not only failed to address why it was

impossible for him to file a 12(b) motion, but his brief fails to even argue that his wavier

deserves excuse. Tolentino thus may not now use the waived claim as an end-run around

his failed entrapment defense.

                                             B.

       Even if this defense were not waived, it would nonetheless fail. Although the

defense of outrageous government conduct is “often invoked by defendants, [it] is rarely

applied by courts.” United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996) (citation

omitted). “The pertinent question is whether the government‟s conduct was so outrageous

or shocking that it amounted to a due process violation.” United States v. Christie, 624

F.3d 558, 573(3d Cir. 2010) (citation omitted). “[C]ourts have experienced considerable

difficulty in translating „outrageous misconduct‟ into a defined set of behavioral norms,”

United States v. Nolan-Cooper, 155 F.3d 221, 230 (3d Cir. 1998) (citation omitted), but it

is generally “reserved for only the most egregious circumstances,” United States v.

Mosley, 965 F.2d 906, 910 (3d Cir. 1992). “[T]he challenged conduct must be shocking,

outrageous, and clearly intolerable,” thus “violat[ing] our sense of fundamental fairness

or shock[ing] the universal sense of justice.” Pitt, 193 F.3d at 761-762 (citing United

States v. Russell, 411 U.S. 423, 432 (1973)). “[W]e repeatedly have noted that we are

„extremely hesitant to find law enforcement conduct so offensive that it violates the Due

Process Clause.‟” United States v. Hoffecker, 530 F.3d 137, 154 (3d Cir. 2008) (quoting

Voigt, 89 F.3d at 1065).




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       Tolentino contends that the government‟s conduct was outrageous because it

incentivized its informant without supervising him, thereby allowing Arcila to persuade

Tolentino to join a drug conspiracy. Even if there may have been something “shocking”

about the incentives the government gave Arcila, Christie, 624 F.3d at 573, such an

allegation would impugn the credibility of Arcila, not the behavior of the government,

see Gonzales, 927 F.2d at 144 (“„[T]he method of payment is properly a matter for the

jury to consider in weighing the credibility of the informant.‟” (quoting United States v.

Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979))). During his trial, Tolentino had ample

opportunity to cross-examine both Arcila and his supervisor regarding the informant‟s

incentives and motivations. Hence, it is not our place to question the jury‟s finding that

Arcila‟s testimony was credible.

       Tolentino‟s contention that the government acted outrageously by not supervising

its informant is also without merit. We have held that a lack of informant supervision

does not constitute outrageous conduct. See Christie, 624 F.3d at 564-565 (holding that

the government does not act outrageously in its supervision of a confidential informant

even if that informant violates federal law by running a child pornography website).

Arcila‟s supervisor testified, moreover, that the informant reported back “constantly”

with status updates. App. 00055. He testified also that he was aware of Arcila‟s contact

with Tolentino since the “beginning part of the summer of 2007.” Id. Although the lack

of recordings during the first year-and-a-half of Arcila and Tolentino‟s acquaintanceship

is troubling, as the District Court noted, the Appellant “points to no evidence showing




                                             6
that [Arcila] did anything more than provide Defendant with an opportunity to commit a

crime.” App. 00428.

        In United States v. Lakhani, 480 F.3d 171 (3d Cir. 2007), we held that a defendant

had not met the rigorous standard of outrageous government conduct because he “used

his own knowledge” of the illegal activity, and because “there [was] much to suggest”

that the defendant was predisposed to criminal activity. Id. at 182. Unfortunately for

Tolentino, his introduction of the confidential informant to “Willy,” someone the District

Court found to be “clearly . . . involved in . . . the illegal business of importing drugs,”

Supp. App. 458, established both that he used his own knowledge to further the drug

trafficking conspiracy and suggests that he had a predisposition to commit the crime.

Because Tolentino could not have met the requirements of the outrageous government

conduct defense, the District Court did not err when it failed to raise it sua sponte during

his trial.

                                           *****

        We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be
AFFIRMED.




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