UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4587

DANIEL JOSEPH BRENNAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-340)

Submitted: August 25, 1998

Decided: September 24, 1998

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randolph Stuart Sergent, VENABLE, BAETJER & HOWARD,
L.L.P., Baltimore, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Maury S. Epner, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Daniel Joseph Brennan was convicted by a jury of attempted bank
robbery in violation of 18 U.S.C. § 2113(a) (1994), and soliciting oth-
ers to commit an armed robbery of an armored car in violation of 18
U.S.C. § 373(a) (1994). The district court sentenced Brennan to
thirty-seven months' imprisonment. Brennan now appeals both his
conviction and sentence. However, finding no error, we affirm.

Federal authorities began their investigation of Brennan after Ste-
phen Passero, Brennan's godson, informed them that Brennan solic-
ited his help in a plan to rob an armored car. According to Passero,
the plan actually involved two robberies: (1) a preliminary robbery of
a commercial establishment, which Brennan claimed would finance
the purchase of bulletproof vests, walkie talkies, scanners, and guns
and (2) the armored car robbery. Passero also informed authorities
Brennan advocated enlistment of a third party for help in these rob-
beries.

Based on this information, FBI agent Alan Carrol arranged with
Passero to be recommended to Brennan for this third position in the
"conspiracy." In addition, Carrol communicated through Passero his
suggestion of a subject for the preliminary robbery: a bank in New
Carrolton, Maryland. Brennan eventually accepted both Carrol and
his suggestion, and the three men agreed to rob the bank. Thereafter,
Brennan, Carrol, and Passero "cased" both the bank and armored car
locations and stole a car for use in robbing the bank.

However, before the robbery of the bank could be carried out, FBI
agents arrested Brennan. Following his arrest, Brennan confessed to
his role in both the initial steps of the robbery of the bank and in the
plan to rob the armored car. As a result of this confession, Brennan
was indicted for attempting the robbery of the bank and for soliciting
others to aid in the robbery of the armored car.

During trial in the district court, there were two occurrences rele-
vant to this appeal. First, during direct examination by the Govern-

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ment, Passero testified about an alleged "falling out" between himself
and Brennan. According to the Government, this testimony was elic-
ited in order to establish Passero's motive in collaborating with the FBI,1
and the record indicates that no details of this"falling out" were
sought. However, on cross-examination, Brennan's counsel asked
Passero about an affidavit Passero signed stating that an attack by
Brennan, allegedly the cause of this "falling out," never occurred.
Therefore, on redirect examination, the Government asked Passero
about details of the attack, which Passero provided, going so far as
to point out the place on his body where he was allegedly shot by
Brennan.

Second, at the close of trial, the district court denied Brennan's
request for a jury instruction on entrapment. The court based this
decision on its determination that Brennan had not produced evidence
sufficient to warrant such an instruction.

Brennan was found guilty of both charges contained in the indict-
ment against him, and the district court sentenced him to thirty-seven
months' imprisonment. In so doing, the district court denied Bren-
nan's request for a downward departure under the Sentencing Guide-
lines for physical impairment. This appeal followed.

In this appeal, Brennan alleges three errors by the district court:
two regarding trial and one regarding sentencing. We consider each
in turn.

First, Brennan argues that the court erred in allowing Passero to
describe Brennan's alleged attack on him and to point out the location
of the wound he allegedly received in that attack. Brennan contends
that this evidence was irrelevant, prejudicial, and not admissible
under the Federal Rules of Evidence. The Government concedes that,
standing alone, the testimony is not admissible under the Rules,2 but
argues that it was nevertheless properly admitted because Brennan
"opened the door" to the question of whether he attacked Passero. We
agree.
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1 See Appellee's Br. at 22.

2 Id.

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In determining whether Brennan's counsel's cross-examination of
Passero "opened the door" to the Government's questions regarding
the details of the alleged attack, we find our holding in United States
v. Barber instructive.3 In Barber, a criminal defendant testified on
direct examination that "had he been afforded the opportunity," he
would have given a statement to prosecutors regarding the charges
against him before he was indicted.4 As a result of this testimony, we
held that the defendant "opened the door" to cross-examination by the
Government on the subject of the defendant's exercise of his Fifth
Amendment privilege against self-incrimination before the grand jury
--a matter indisputably off-limits to prosecutors in all but exceptional
circumstances.5

Further, we are mindful of our more recent holding in United States
v. Williams.6 In that case, counsel for a defendant charged with dis-
tributing drugs cross-examined a DEA agent as to whether the agent
had "personal knowledge" of the defendant's dealings with an
informant.7 We held that this"opened the door" to a redirect question
regarding the informant's out-of-court statement that he had pur-
chased drugs from the defendant.

In the instant case, we are satisfied that defense counsel's questions
about the affidavit regarding the alleged attack"opened the door" to
Passero's testimony. As in Barber, the Government avoided detailed
inquiry into the inadmissible evidence8 until Brennan's counsel put
the subject of that evidence--whether an attack actually occurred--at
issue through detailed questions about the facts upon which the affi-
davit was based.9 Thereafter, the sort of clarification-oriented redirect
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3 668 F.2d 778 (4th Cir. 1982).
4 United States v. Barber, 668 F.2d 778, 785 (4th Cir. 1982).
5 See id.
6 106 F.3d 1173 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3257 (U.S. Oct. 6, 1997) (No. 96-9412).
7 See id. at 1177.
8 See J.A. at 23 (in examining Passero, the Government asked,
"[w]ithout getting into specifics, Mr. Passero what happened to change
that relationship [with Brennan])?"
9 Id. at 97-99.

                    4
allowed in Williams was proper. Thus, we find no abuse of discretion
in the district court's decision to admit this testimony. Accordingly,
we decline to disturb Brennan's conviction on this ground.

We are also unpersuaded by Brennan's contention that the district
court erred in denying his request for a jury instruction on entrapment.
As we explained in United States v. Singh,10 "[i]n order to receive an
entrapment defense instruction, the defendant must produce `suffi-
cient evidence from which a reasonable jury could find' that the gov-
ernment induced him to commit the charged offense."11 After a de
novo review of this issue,12 we agree with the district court's determi-
nation that Brennan failed to produce such evidence.

The affirmative defense of entrapment has two elements: (1) gov-
ernment inducement of the crime and (2) lack of predisposition on the
part of the defendant to engage in the criminal conduct.13 Thus, to
receive an entrapment instruction, a defendant must come forward
with evidence from which a reasonable jury could conclude that both
inducement by the Government and lack of predisposition on the part
of the defendant existed in a particular case. Here, the district court
based its denial of Brennan's request for an entrapment instruction on
Brennan's failure to come forward with evidence of a lack of predis-
position to rob the bank.14 We agree.

Brennan argues that he made the decision to rob the bank only after
Carrol suggested it. This, Brennan contends, demonstrates that he was
not disposed to rob a bank until after the Government had become
involved. However, in making this argument, Brennan overlooks the
uncontroverted evidence that he was planning some type of robbery
to precede the robbery of the armored car well before Passero
informed the Government of the plan. Indeed, this was part of the
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10 54 F.3d 1182 (4th Cir. 1995).
11 Id. at 1189 (citations omitted).
12 See id.
13 See United States v. Lamarr, 75 F.3d 964, 974 (4th Cir.) (internal
quotations and citations omitted), cert. denied , ___ U.S. ___, 65
U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398).
14 See J.A. at 259.

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information that Passero took to the FBI and was the reason Carrol
suggested the bank as a potential target.

In addition, we have held that "inducement" is more than mere sug-
gestion. Rather, it must be "conduct sufficiently excessive to implant
a criminal design in the mind of an otherwise innocent party."15 We
find no evidence of such behavior on the part of the Government in
this case.

We therefore agree with the district court's determination that
Brennan failed to provide evidence sufficient to warrant an entrap-
ment instruction. Accordingly, we will not disturb his conviction on
this ground.

Finally, Brennan argues that the district court erred in denying his
request for a downward departure under USSG § 5H1.4.16 Brennan
states that this decision was based on the district court's "legal con-
clusion" that it lacked the authority to make this departure.17 How-
ever, as the Government notes, the district court clearly considered
the departure as being within its discretion, but declined to grant it
because Brennan's "primary physical problems appear to be chronic
alcoholism . . . [and] that the Bureau of Prisons would be and is capa-
ble of caring for Mr. Brennan's medical problems."18

Thus, we are satisfied that the district court exercised its discretion
under § 5H1.4 and that Brennan presents no evidence that it abused
that discretion. Accordingly, we affirm the district court's decision to
deny the requested downward departure.

Based on the foregoing, we affirm Brennan's conviction and sen-
tence. We deny Brennan's motion to expedite this appeal. We dis-
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15 United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993) (citation
omitted).
16 U.S. Sentencing Guidelines Manual (1995).
17 See Appellant's Br. at 35-36. Brennan contends that the district court
determined that it could not make the requested departure because it was
of the opinion that Brennan's poor health was the result of alcohol use.

18 J.A. at 467.

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pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.

AFFIRMED

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