11-2763(L)
United States of America v. Cromitie (Williams)


                                UNITED STATES COURT OF APPEALS

                                        FOR THE SECOND CIRCUIT

                                              August Term 2012

Heard: November 5, 2012                                    Decided: August 22, 2013

       Docket Nos. 11-2763(L), 11-2884(con), 11-2900(con), 11-
                              3785(con)

- - - - - - - - - - - - - - - - - - - - - -
UNITED STATES of AMERICA,
     Appellee,

                           v.

JAMES CROMITIE, AKA Abdul Rehman, AKA Abdul Rahman, DAVID
WILLIAMS, AKA Daoud, AKA DL, ONTA WILLIAMS, AKA Hamza, LAGUERRE
PAYEN, AKA Amin, AKA Almondo,
     Defendants-Appellants.
- - - - - - - - - - - - - - - - - - - - - -

Before: JACOBS, Chief Judge, and NEWMAN and RAGGI, Circuit
Judges.

        Appeal from the July 8, 2011, judgments of the United States

District Court for the Southern District of New York (Colleen

McMahon, District Judge), sentencing four defendants to terms of

25 years after their convictions by a jury of a terrorism plot

to launch missiles at military airplanes and bomb two synagogues.

        Appellants contend primarily that entrapment was established

as a matter of law, that outrageous government conduct violated

the Due Process Clause, and that the prosecution’s knowing use
of perjured testimony violated the Due Process Clause. The Court

unanimously rejects (1) the claims of David Williams, Onta

Williams, and Laguerre Payen as to entrapment as a matter of law,

(2) all defendants’ claims of outrageous government conduct and

knowing use of perjured testimony in violation of the Due Process

Clause, and (3) all defendants’ other claims; the Court, by a

vote of two to one, rejects the claim of James Cromitie as to

entrapment as a matter of law.

    Affirmed.   Chief Judge Jacobs concurs in part and dissents

in part; he would uphold Cromitie’s claim of entrapment as a

matter of law and reject all of Cromitie’s other claims and

reject all claims of the other defendants.



                          Adam S. Hickey, Asst. U.S. Atty., New
                            York, NY (Preet Bharara, U.S. Atty.,
                            Patrick Ian McGinley, Jason P.W.
                            Halperin, Iris Lan, Asst. U.S.
                            Attys., New York, NY, on the brief),
                            for Appellee.

                          Clinton W. Calhoun, III, White Plains,
                            NY (Calhoun & Lawrence, LLP, White
                            Plains, NY, on the brief), for
                            Appellant James Cromitie.

                          Theodore S. Green, White Plains, NY
                            (Green & Willstatter, White Plains,
                            NY, on the brief), for Appellant
                            David Williams.


                                 -2-
                          David A. Lewis, Federal Defenders of
                            New York, Inc. Appeals Bureau, New
                            York, NY (Mark B. Gombiner, New
                            York, NY, on the brief), for
                            Appellant Onta Williams.

                          Sam Braverman, Bronx, NY (Jennifer B.
                            Arlin, Bronx, NY, on the brief), for
                            Appellant Laguerre Payen.

JON O. NEWMAN, Circuit Judge.

                       Table of Contents

Background ................................................ 5

    The Charged Offenses .................................    5
    Facts of the Offenses ................................    6
    Defense Evidence .....................................    18
    Verdicts and Sentencing ..............................    18


Discussion ................................................ 18

I. Entrapment .............................................   19
     (A) Elements of Entrapment ...........................   19
          (1) Design ......................................   23
          (2) Time of Predisposition ......................   28
          (3) Type of Evidence Relevant to
              Predisposition ..............................   30
     (B) Entrapment as a Matter of Law ...................    33
          (1) Cromitie ....................................   33
               (a) Inducement .............................   33
               (b) Predisposition .........................   38
          (2) David Williams, Onta Williams, and
              Payen .......................................   47
               (a) Inducement .............................   47
               (b) Predisposition .........................   48
     (C) Jury Charge on Entrapment .......................    50

II. Outrageous Government Conduct ........................    53
     (A) Government’s Role in Planning
          the Crimes ......................................   56

                                -3-
    (B)   Exploiting Religious Views ......................   57
    (C)   Exploiting Professed Love .......................   59
    (D)   Monetary and Other Benefits .....................   60
    (E)   Aggregation of Persuasion Techniques ............   62

III. Prosecution’s Knowing Use of Perjured Testimony ....     63
     (A) False Statements Unrelated to the
         $250,000 Offer .................................     64
     (B) False Statements Concerning the $250,000 .......     67
          (1) Falsity of the $250,000 Testimony .........     67
          (2) The Prosecution’s Knowledge of the
              Falsity .....................................   68
          (3) The Prosecution’s Imputed Knowledge ........    70
          (4) Likelihood of Affecting the Jury ...........    71

IV. Other Claims .........................................    72
     (A) Admission of Video Evidence .....................    72
     (B) Vouching for Witness’s Credibility ..............    72
     (C) Jury’s Exposure to Extra-Record Evidence ........    73
     (D) Sentencing ......................................    75

Conclusion ..............................................     78

    This is an appeal by four defendants convicted of planning

and attempting to carry out domestic terrorism offenses involving

a plot to launch missiles at an Air National Guard base at

Stewart Airport in Newburgh, NY, and bomb two synagogues in the

Bronx.    The appeal primarily presents issues concerning the

extent to which a government informant may lawfully urge the

commission of crimes, issues framed as claims of entrapment as

a matter of law and outrageous government conduct in violation

of the Due Process Clause.    The appeal also presents an issue

concerning the falsity of portions of the informant’s trial


                               -4-
testimony.        These issues arise on an appeal by defendants-

appellants James Cromitie, David Williams, Onta Williams, and

Laguerre Payen from the July 8, 2011, judgments of the District

Court for the Southern District of New York (Colleen McMahon,

District Judge).        We reject the defendants’ claims of entrapment

as   a   matter    of    law,    outrageous     government    conduct    in   the

instigation       of    the   offenses,   and    knowing     use   of   perjured

testimony, as well as all other claims raised on appeal.                       We

therefore affirm.

                                   Background

     The charged offenses.            All the charged offenses resulted

from an elaborate sting operation conducted by the FBI using an

undercover informant.           An indictment filed in June 2009, charged

the four defendants with eight offenses: Count One -- conspiracy

to use weapons of mass destruction within the United States (18

U.S.C. § 2332a); Counts Two, Three, and Four -- attempt to use

weapons of mass destruction near or at the Riverdale Temple, in

the Bronx, the Riverdale Jewish Center (a synagogue) in the

Bronx, and the New York Air National Guard Base at Newburgh,

respectively (18 U.S.C. § 2332a); Count Five -- conspiracy to

acquire and use anti-aircraft missiles (18 U.S.C. § 2332(g));

Count Six -- attempt to acquire and use anti-aircraft missiles

                                       -5-
(18 U.S.C. § 2332(g)); Count Seven -- conspiracy to kill officers

and employees of the United States (18 U.S.C. §§ 1114, 1117);

Count Eight -- attempt to kill officers and employees of the

United States (18 U.S.C. §§ 1114, 2).

    Facts    of   the   offenses.    The    facts     are   detailed    in   two

comprehensive     opinions    of   the     District      Court,   denying    the

defendants’ post-trial motions. See United States v. Cromitie,

781 F. Supp. 2d 211 (S.D.N.Y. 2011) (“Cromitie I”), and United

States v. Cromitie, No. 09 Cr. 558(CM), 2011 WL 1842219 (S.D.N.Y.

May 10, 2011) (“Cromitie II”).        We assume familiarity with those

opinions and recount at this point only the salient facts that

the jury was entitled to find with respect to the defendants’

criminal conduct.       We set forth facts concerning the claims of

entrapment as a matter of law, outrageous government conduct, and

knowing use of perjured testimony in the discussion of those

claims.

    A     government    confidential       informant,       Shahed     Hussain,

conducted an undercover investigation for several months in 2008

and 2009. Hussain is a Pakistani national who was granted asylum

by the United States in the mid-1990s based on his claim of

political    persecution     in    Pakistan.        In   2003,    Hussain    was

convicted of fraud based on his misconduct as a translator

                                     -6-
working at the Motor Vehicles Bureau in Albany.              To avoid being

deported, Hussain agreed to cooperate with the Government’s

investigation of another individual.              In the spring of 2007,

Hussain became a paid informant of the FBI and started working

in the lower Hudson Valley.             As the District Court stated,

Hussain’s goal was to “locate disaffected Muslims who might be

harboring terrorist designs on the United States.”             Cromitie II,

2011 WL 1842219, at *2.

    By June 2008, Hussain had been attending services at a

mosque in Newburgh at the direction of the FBI.                  During that

time,    the FBI provided a house for Hussain                that contained

concealed video and audio recording equipment.            In addition, the

FBI provided Hussain with recording devices for his person and

his car.      Hussain presented himself at the mosque as a wealthy

Pakistani     businessman   with   knowledge      of   Islamic    teachings.

During    a   period   of   several     months,    Hussain    cultivated   a

friendship with Cromitie, who subsequently recruited the other

three defendants.

    Cromitie, 42 years old, was, in Judge McMahon’s words, “an

impoverished man,” Cromitie I, 781 F. Supp. 2d at 226, who

sustained himself by committing petty drug offenses for which he

had repeatedly been caught and convicted. In addition, he worked

                                      -7-
a night shift at a local Walmart store, earning less than $14,000

per year.

       On June 13, 2008, Cromitie walked up to Hussain in the

parking lot of the mosque.         Hussain testified that Cromitie, in

an Arabic accent, introduced himself as Abdul Rahman, and claimed

that       his   father   was   from    Afghanistan.   After   a    short

conversation, Hussain drove Cromitie home from the mosque.            On

the way, Cromitie asked Hussain about violence in Afghanistan

that had been reported recently on television.            When Hussain

asked      Cromitie if    he would like to travel to Afghanistan,

Cromitie responded by saying he would love to.         He then said, in

the first indication of his proclivity to terrorism, that he

wanted “to die like a shahid, a martyr”1 and “go to paradise,”

Trial Transcript (“Trial Tr.”) 681, and immediately thereafter

said, “I want to do something to America.” Id. at 682.             As he

said these words, he pointed his right index finger in the air

in a gesture Hussain testified is used by “somebody[] in radical

Islam” to mean “taking an oath in front of Allah to do take part

of [sic] crime or Jihad act they want to do.” Id. at 682.          During



       1
      Hussain testified that a “shahid” was a “person who dies
in Islam as a soldier in jihad or soldier in warfare.” Trial
Transcript 681.
                                       -8-
that first encounter,   Hussain told Cromitie that a lot of

military planes flew from what was later identified as Stewart

Airport to take arms and ammunition to Afghanistan and Iraq.

    Hussain met with Cromitie three more times in the summer of

2008. Hussain testified that during these meetings Cromitie said

that he hated Jews and Americans and that he would kill the

President of the United States “700 times because he’s an

antichrist.” Id. at 686.   After learning of these remarks, the

FBI instructed Hussain to tell Cromitie that he, Hussain, was a

representative of a terrorist group in Pakistan, Jaish-e-Mohammed

(“JeM”). On July 3, 2008, Hussain, following these instructions,

Hussain told Cromitie he was flying to Pakistan to meet with JeM

and asked Cromitie if he wanted to attend.   Cromitie said he did

and then volunteered that he wanted to join JeM.

    Hussain recorded four conversations with Cromitie in the

fall of 2008. In a conversation recorded on October 19, Cromitie

said that American Muslims could do something similar to the

attacks of September 11, 2001, stating:

    “If, if the Muslims was to want the United States down,
    believe me, we can do it.     With the regular Muslims
    here, all somebody has to do is give a good fatwa to
    the brothers and let, make sure they understand. You,
    they taking down our Islamic countries. What do we do
    to make that stop? So, we start taking something down
    here. You understand what I’m saying?”

                               -9-
Joint Appendix (“JA”) 2824.2   In a conversation recorded later

that day, Cromitie said, “I have zero tolerance for people who

disrespect Muslims.” Id. at 2836.

    In a conversation recorded on October 29, Cromitie said,

“When the call come[s], I’m gonna go, ‘Allahu akbar,’ and I’m

gone.   There’s nothing no one can do.   I’m gonna go all the way.

There’s no, no turn back.” Id. at 2903.   On November 14, Hussain

told Cromitie that he could obtain guns and rockets.

    In late November, Hussain drove Cromitie to a conference of

the Muslim Alliance of North America in        Philadelphia.   On

November 28, during the ride to the conference, Cromitie, in a

recorded conversation, boasted that he had stolen three guns from

Walmart, two .25 automatics and a snub nose, and had “stashed”

them. Also during the ride, Cromitie indicated that he could put

“a team together,” id. at 3229, and said he was “gonna try to put

a plan together,” id. at 3240.    Earlier that day, Cromitie for

the first time expressed interest in buying “stuff” from Hussain.

Hussain had previously told Cromitie that he could get “[a]ny


    2
      Verbatim quotations from audio and videotaped recordings
are cited to the Joint Appendix, and those from recorded
telephone   conversations   are   cited  to  the  Government’s
Supplemental Appendix.    Transcripts of these recordings were
introduced as trial exhibits but not read into the trial
transcript.
                               -10-
stuff that you need,” specifically guns and missiles. Id. at

3146.

    On the second day of the conference, November 29, Cromitie’s

talk became more specific after Hussain asked Cromitie if his

“team” had ever “thought about doing something here [in the

United States].” Id. at 3285.   Cromitie responded by saying that

his team never considered doing that, but that he had and that

he had “been wanting to do that since I was 7.” Id. at 3286.

Cromitie claimed that he had bombed a police station in the Bronx

in 1994, id. at 3296, but wanted to do something “a little

bigger,” id. at 3304, because he had “to make some type of noise

to let them know,” id. at 3302.

    Hussain asked Cromitie what targets he wanted to hit in the

New York area, and Cromitie said that he wanted to “hit” the

George Washington Bridge. Id. at 3294.    When Hussain said that

bridges are too hard to hit, Cromitie replied, “Hit some small

spots . . . . This had to be a terrorist act.” Id.

    Later, while Hussain and Cromitie were watching television

coverage of a terrorist attack in Mumbai and the funeral of a Jew

who had been killed in that attack, Cromitie said:

    “Look at the Jewish guy. You’re not smiling no more,
    you fucker. I hate those bastards. . . . I hate those
    motherfuckers. Those fucking Jewish bastards . . . .

                                -11-
    I’d like to get one of those.    I’d like to get a
    synagogue. Me. Yeah, personally.”

Id. at 3316.

    Hussain    recorded   conversations   with    Cromitie   on   three

occasions in December 2008.       On December 5, Cromitie, after

quoting a “brother” saying, “‘I think it’s time we make jihad

right here in America,’” id. at 3449, said, “I agree with the

brother. . . . [I]t makes sense to me,” id. at 3450.      On December

17, when Hussain said, “Let’s pick a target,” Cromitie suggested

“Stewart Airport.” Id. at 3536.

    On December 18, Hussain traveled to Pakistan and returned

eight and one-half weeks later.

    In a meeting with Cromitie on February 23, 2009, Hussain

asked, “The synagogue, where is it in Bronx or in Brooklyn?” Id.

at 3623. Cromitie replied, “[T]here’s one in [t]he Bronx, I mean

you got like, uh two or three of them in Brooklyn.” Id.       The next

day, Hussain bought Cromitie a camera and drove him to Stewart

Airport where they conducted surveillance. While there, Cromitie

took photos.   Cromitie was recorded stating, “Imagine if we hit

all the planes in one spot.” Id. at 3845.        He also told Hussain

he was going to speak to another man about being a lookout and

would “talk to some of the guys” and tell them they would receive


                                -12-
$25,000 to “just look out.” Id. at 3655.

     Six weeks passed without any contact between Cromitie and

Hussain.    On April 5, 2009, Cromitie reached out to Hussain.             In

a   recorded    conversation,   he    told   Hussain   of     his   financial

problems and said, “I have to try to make some money brother.”

Id. at 4486.      Hussain responded, “I told you, I can make you

250,000 dollars, but you don’t want it brother.              What can I tell

you?” Id.       At this, Cromitie answered, “Okay, come see me

brother.     Come see me.” Id.        We discuss this conversation in

detail below. See Part I(B)(1)(a).

     On April 7, Hussain told Cromitie that JeM had already taken

significant steps to support the operation, stating, “The missile

was ready.” Id. at 3698.        Later in that conversation Cromitie

said he would “take . . . down” “a whole synagogue of men.” Id.

at 3717.       Cromitie and Hussain then discussed the need for

lookouts.

      On April 10, Hussain picked Cromitie up at Cromitie’s house

and was introduced to a man standing in front of the house.              This

man, known as “Daoud,” was defendant David Williams.                All three

men drove to the Riverdale section of the Bronx, where Cromitie

photographed     the   Riverdale   Jewish    Center    and    the   Riverdale

Temple.     Later that day Cromitie took photographs of airplanes
                                     -13-
at Stewart Airport.

    On April 23, the three met again.       Cromitie asked at what

distance could an IED (improvised explosive device) be detonated.

When Hussain said 100 miles and explained, “You can sit down

here, and it blows up there,” id. at 3846, Cromitie and David

Williams celebrated by bumping fists. When Hussain said he would

train Cromitie how to use a rocket launcher, David Williams said

that he wanted to participate.   The next day, the three drove to

Stewart Airport.   David Williams asked Cromitie for the camera

and took surveillance pictures.       Later, they discussed taking

rooms at a nearby Marriott Hotel to hide out after the planned

attacks. After Hussain outlined the attack plans, David Williams

said the airport attack would be the “tricky one,” compared to

the synagogue attack, which would be “smooth” because the bombs

would be detonated remotely from a hotel. Id. at 3914.

    In less than a week, Cromitie and David Williams recruited

defendants Onta Williams and Laguerre Payen.     On April 25, in a

recorded telephone call David Williams told Cromitie to call

Hussain and “[t]ell him I got the other brother.”3 Govt. Supp.

Appx. 512.    By April 28, when all four defendants met with



    3
        This was most likely Onta Williams.
                               -14-
Hussain, Payen had been recruited.                At   this meeting, when

Cromitie explained that “Yahudi” means “Jews,” Payen said, “Yeah

you told me that,” JA 4079, which permitted the jury to infer

that Cromitie had recruited Payen.

    Bombing two synagogues and launching Stinger surface-to-air

missiles at Stewart Airport was specifically discussed at this

meeting. Payen asked how long every job would take; Hussain told

him ten minutes. Cromitie suggested that all four defendants and

Hussain    identify   themselves   in     phone   calls   by   code   names:

“Charles” for Cromitie, “Manny” for David Williams, “Brooks” for

Onta Williams, “Bond” for Payen, and “Tony” for Hussain.               They

also agreed on other code words: “eggs” for phones, “the pilon”

for the Bronx, “beans” for rockets, “birds” for planes, and

“[t]he trains are coming” for “the police are coming.” Id. at

4090-91.    Payen confirmed that all he had to say was that the

trains are coming.     Cromitie ended the meeting by saying, “This

is going down in history.” Id. at 4104.

    Previously David Williams told Cromitie that he (David)

wanted to be armed.      On April 30, David Williams purchased a

semi-automatic pistol.     Two days before, Onta Williams had tried

to purchase two guns.       On May 1, Payen took Hussain to the

apartment of a person Payen said was willing to sell guns, but

                                   -15-
there was no response to a knock at the door.

    Later on May 1, Hussain and all four defendants drove to

Stewart Airport to conduct more surveillance.    All agreed on the

best spot from which to launch Stinger missiles.        They also

discussed the locations where Onta Williams and Payen would be

stationed as lookouts.   The whole group then drove to Hussain’s

house and discussed plans for the attack.

    On May 6, Hussain drove Cromitie, David Williams, and Payen

to a warehouse in Stamford, CT, where the FBI had stored three

fake bombs and two fake Stinger missiles.       Hussain instructed

them how to launch the missiles and how to wire the detonating

devices for the bombs.    After one missile and the bombs were

loaded into Hussain’s car, the four drove to a storage facility

in New Windsor, NY, where Hussain had rented storage lockers.

Cromitie, David Williams, and Hussain unloaded the weapons and

placed them in the lockers while Payen acted as a lookout. Id.

at 927.   The group then hugged each other and shouted, “Allahu

akbar, God is great.” Id. Later that night, Payen explained to

Onta Williams how the missile operated.   At a meeting on May 8,

Cromitie told the other defendants that there were 25 thousand

balls (ball bearings) in a bomb and that “once them balls go off,

they go anywhere.” Id. at 4281.   At the end of this meeting, the
                              -16-
defendants agreed to carry out the attacks on May 20.

    On May 13, all four defendants drove with Hussain to the

Riverdale   section   of   the   Bronx   to   conduct   surveillance,

specifically of the Riverdale Jewish Center.      The defendants got

out of the car and walked around looking for security cameras on

top of nearby buildings.         On May 19, Hussain and the four

defendants conducted a final surveillance of Stewart Airport,

during which Onta Williams changed the locations of the lookouts

for the Airport. The group returned to Hussain’s house to review

the plans, which were to pick up the bombs at the storage

facility, drive to Riverdale to wire them, leave them in cars

that the FBI had placed in front of the synagogues, drive back

to Newburgh, retrieve the missiles, fire them at the military

planes, and detonate the bombs using their cell phones.

    On May 20, the four defendants drove with Hussain to the New

Windsor storage facility, where they picked up the three bombs

and drove to Riverdale.     Acting according to their plan, they

stopped near where the two cars had been parked by the FBI for

the operation, a Pontiac directly in front of the Riverdale

Temple and a Mazda directly in front of the Riverdale Jewish

Center. Hussain let Onta Williams, David Williams, and Payen out

to take up their positions as lookouts. Cromitie then placed one

                                 -17-
of the fake bombs in the trunk of the Pontiac and two others on

the back seat of the Mazda.      Moments later, FBI agents arrested

all four defendants.

     Defense evidence. Cromitie presented two witnesses.             The

personnel manager of the Walmart store where Cromitie had worked

testified that the store had stopped selling long guns before the

time when Cromitie had told Hussain he had stolen guns for resale

and that Cromitie stopped showing up for work in February 2009

and was subsequently fired.      A neighbor of Cromitie’s testified

that Cromitie had sold him the camera that Hussain had purchased

and had given to Cromitie for surveillance. The other defendants

presented no evidence.

     Verdicts and sentencing.       After eight days of deliberation,

the jury found Cromitie and David Williams guilty on all counts

and found Onta Williams and Payen guilty on all counts except

Count Eight, which charged attempt to kill officers and employees

of   the   United   States.   The    District   Court   sentenced   each

defendant to a 25-year mandatory minimum sentence.

                              Discussion

     The defendants make three principal claims on appeal: (1)

the evidence established entrapment as a matter of law; (2) the

Government’s conduct in persuading Cromitie and, through him, the

                                 -18-
other defendants to participate in the plan was outrageous

conduct in violation of the Due Process Clause; and (3) the

prosecution knowingly presented false testimony of its undercover

informant Hussain in violation of the Due Process Clause.

I. Entrapment

    (A) Elements of Entrapment

    “[A] valid entrapment defense has two related elements:

government inducement of the crime, and a lack of predisposition

on the part of the defendant to engage in criminal conduct.”

Mathews v. United States, 485 U.S. 58, 63 (1988); see Sherman v.

United States, 356 U.S. 369, 376-78 (1958). “Predisposition, the

principal element in the defense of entrapment, focuses upon

whether the defendant was an unwary innocent or, instead, an

unwary criminal who readily availed himself of the opportunity

to perpetrate the crime.” Mathews, 485 U.S. at 63 (citations and

internal quotation marks omitted).         “[T]he fact that officers or

employees   of   the   Government    merely   afford   opportunities   or

facilities for the commission of the offense does not defeat the

prosecution.” Jacobson v. United States, 503 U.S. 540, 548 (1992)

(internal quotation marks omitted). The defendant has the burden

of showing inducement, see United States v. Bala, 236 F.3d 87,

94 (2d Cir. 2000); United States v. Williams, 23 F.3d 629, 635

                                    -19-
(2d Cir. 1994), and, if inducement is shown, the prosecution has

the burden of proving predisposition beyond a reasonable doubt,

see United States v. Al-Moayad, 545 F.3d 139, 153 (2d Cir. 2008);

Bala, 236 F.3d at 94.

    Before 1932, government inducement sufficed to preclude a

valid conviction on the ground of entrapment.4 In that year, the

Supreme   Court’s   first   decision    on   the   entrapment   defense,

Sorrells v. United States, 287 U.S. 435 (1932), began the process

of defining the circumstances under which government inducement

alone would no longer establish the defense of entrapment.

Sorrells focused the entrapment inquiry on a defendant’s state

of mind, rather than on only the government’s inducement: “‘When

the criminal design originates, not with the accused, but is

conceived in the mind of the government officers, and the accused

is by persuasion, deceitful representation, or inducement lured

into the commission of a criminal act, the government is estopped

by sound public policy from prosecution therefor.’” Id. at 445

(emphasis added) (quoting Newman v. United States, 299 F. 128,


    4
       See United States v. Becker, 62 F.2d 1007, 1008 (2d Cir.
1933); Lucadamo v. United States, 280 F. 653, 657-58 (2d Cir.
1922).    The Supreme Court has noted that the first case to
recognize this version of entrapment was Woo Wai v. United
States, 223 F. 412 (9th Cir. 1915). See United States v. Russell,
411 U.S. 423, 428 n.5 (1973).
                                 -20-
131 (4th Cir. 1924)).

    The next year, Judge Learned Hand observed that the Supreme

Court in Sorrells had not spelled out “precise limits” as to when

government inducement alone would no longer suffice to preclude

a valid conviction. See United States v. Becker, 62 F.2d 1007,

1008 (2d Cir. 1933).     Filling the void, he postulated the three

circumstances, any one of which would become the accepted means

in this Circuit of establishing a defendant’s predisposition: “an

existing   course   of   similar   criminal   conduct;   the   accused’s

already formed design to commit the crime or similar crimes; his

willingness to do so, as evinced by ready complaisance.”5 Id.


    5
          A troublesome aspect of two of the three means of
proving predisposition, rarely if ever discussed in reported
opinions, is the inevitable tension between upholding the
entrapment defense when the defendant does not have in his mind
a pre-existing design of criminal conduct and rejecting the
defense when he makes a prompt response to a government
invitation to commit a crime. When a government agent inquires
whether a person is willing to commit a crime (and accompanies
the inquiry with sufficient persuasion to constitute inducement),
a prompt “yes” could be forthcoming either from a person who had
long entertained the idea of committing the proposed or a similar
crime and was only waiting for the opportunity to do so, or from
a person who had never before in his life contemplated the
proposed or a similar crime. The promptness of the “yes” does
not distinguish between the mental states of these two people.

     Why then do we permit a jury to reject the entrapment
offense when a person promptly says “yes” to a government-
suggested crime? Perhaps the answer is that we rely on the jury,
as the conscience of the community, to convict those it believes,
                                   -21-
(emphasis added). Twenty years later, when Judge Hand endeavored

to   quote        verbatim   the    Becker   formulations,     he    changed

“complaisance” to “compliance.”6 See United States v. Sherman,

200 F.2d 880, 882 (2d Cir. 1952).             Although the wording has

slightly changed since Sherman, these three circumstances have

remained     in    this   Circuit   the   three   ways   available   to   the

Government to prove a defendant’s predisposition.7              See United

States v. Al Kassar, 660 F.3d 108, 119 (2d Cir. 2011); Al-Moayad,

545 F.3d at 154; United States v. Salerno, 66 F.3d 544, 547 (2d



based on all the evidence, would (or at least are likely to)
commit the crime if solicited by someone other than a government
agent and acquit those it believes would not (or at least are not
likely to) commit the crime if so solicited. And, of course, as
with all jury decisions (other than an acquittal), a court
retains the authority to police the outer limits of the jury’s
role by ruling in an extreme case, like Jacobson, that entrapment
has been established as a matter of law.
     6
      Although both words signify agreement, they have slightly
different meanings.     “Complaisance” usually means “ready
disposition to please”; “compliance” usually means “yielding to
pressure, demand, or coercion.” See Webster’s Third New
International Dictionary (1993).
     7
       Other circuits have identified additional factors that
might be helpful in determining a defendant’s predisposition.
For example, the Seventh Circuit has added “the character or
reputation of the defendant” and “the nature of the inducement
or persuasion offered by the Government.” United States v.
Navarro, 737 F.2d 625, 635 (7th Cir. 1984); see United States v.
Gamache, 156 F.3d 1, 9-10 (1st Cir. 1986) (multiple factors);
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (same).
                                     -22-
Cir. 1995); United States v. Harvey, 991 F.2d 981, 992 (2d Cir.

1993).

     There is normally little controversy as to what constitutes

prior “similar criminal conduct.” See Paul Marcus, The Entrapment

Defense § 4.05I (4th ed. 2009).             “Ready compliance” is usually

indicated by the promptness of a defendant’s agreement to commit

an offense. See Marcus, supra, § 4.05G.                 Indeed, the Supreme

Court has stated that if the defendant “had promptly availed

himself of the criminal opportunity” presented by government

agents, “it is unlikely that his entrapment defense would have

warranted a jury instruction.”         Jacobson, 503 U.S. at 550.       What

is   meant   by   a   pre-existing    “design”     is    more   problematic.

Because, as far as we have been able to determine, no decision

of our Court has encountered a jury’s rejection of an entrapment

defense where the prosecution’s claim of predisposition rests

solely on the defendant’s already formed “design,” i.e., without

prior criminal conduct or prompt agreement to commit the offense,

we consider the meaning of “design” in some detail.

     (1) Design

     The first federal decision to use “design” to refer to the

pre-existing mental state that defeats an entrapment defense

appears to be Woo Wai v. United States, 223 F. 412 (9th Cir.

                                     -23-
1915), in 1915, which quoted the following passage from 12

Cyclopedia of Law and Procedure 160 (1901): “The fact that a

detective or other person suspected that the defendant was about

to commit a crime, and prepared for his detection, as a result

of which he was entrapped in its commission, is no excuse, if the

defendant alone conceived the original criminal design.” See Woo

Wai, 223 F. at 414 (emphasis added).     Newman, 299 F. at 131,

quoted the “design” phrasing from Woo Wai, and Sorrells, 257 U.S.

at 445, quoted it from Newman.

    Despite the repeated use of “design” to describe the second

means of proving predisposition, see Jacobson, 503 U.S. at 548;

United States v. Russell, 411 U.S. 423, 435-36 (1973); Sherman,

356 U.S. at 372,8 no court has discussed the meaning of the word

in the context of the entrapment defense.

    In the context of predisposition, the word “design” is

ambiguous.9   It can comprehend a continuum of mental states from


    8
       We recently said that to show entrapment as a matter of
law, a defendant must prove that: “(1) the government originated
the criminal design, (2) the government suggested the design to
the defendant and induced him to adopt it, and (3) the defendant
had no predisposition to engage in the criminal design prior to
the government’s inducement.” Al Kassar, 660 F.3d at 119.
    9
       The ambiguity is well illustrated by the differing
interpretations of the word "design" in the majority and
partially dissenting opinions in this case. The Supreme Court
                               -24-
a generalized idea of committing criminal activity, to an intent

to commit a particular crime or crimes, to a precise plan for

committing such a crime or crimes. In ordinary discourse, saying

that someone acted “by design” usually means with a far more

generalized intent than the specific “design” of an architect.

When Judge Hand repeated from Becker the three means of showing

predisposition    in    our   Court’s       first   encounter   with    George

Sherman,10 he said:

    “As we understand the doctrine it comes to this: that
    it is a valid reply to the defence, if the prosecution
    can satisfy the jury that the accused was ready and
    willing to commit the offence charged, whenever the
    opportunity offered.”

Sherman, 200 F.2d at 882 (emphasis added).

    When   used    as     one   of     the     three   means    of     showing

predisposition, we think “design” must take its meaning from the

context of the type of criminal activity comprising the specific



might usefully consider substituting a different word or phrase
when it next discusses predisposition in the context of a claim
of entrapment.
    10
       On Sherman’s first appeal, we reversed and ordered a new
trial because of an error in the jury instructions. See United
States v. Sherman, 200 F.2d at 883. On Sherman’s second appeal,
after his conviction upon the retrial, we affirmed. See United
States v. Sherman, 240 F.2d 949 (2d Cir. 1949).     The Supreme
Court reversed. See United States v. Sherman, 356 U.S. 369
(1958).
                                     -25-
offenses a defendant has committed.    With respect to a category

as varied as terrorist activity, the requisite design in the mind

of a defendant may be broader than the design for other narrower

forms of criminal activity.      In view of the broad range of

activities that can constitute terrorism, especially with respect

to terrorist activities directed against the interests of the

United States, the relevant prior design need be only a rather

generalized idea or intent to inflict harm on such interests.

A person with such an idea or intent can readily be found to be

“ready and willing to commit the offence charged, whenever the

opportunity offered.”

    Our dissenting colleague draws from Judge Hand’s opinion in

the first Sherman appeal a narrower view of “design” than the one

we adopt.    Chief Judge Jacobs quotes Judge Hand’s statement that

the proof of the defendant’s predisposition “may be by evidence

of . . .    his preparation . . . .” __ F.3d at __, [typescript at

3] and contends that a design must be “a course of conduct . . .

already so well advanced in the defendant’s mind that one can be

sure . . . it was not planted by an agent provocateur,” id. at

__ [typescript at 5] In identifying evidence that “may” show

predisposition, we do not think Judge Hand was requiring evidence

that the defendant had taken steps to prepare to commit the

                                -26-
charged offenses.     In the sentences immediately preceding the

sentence with the word “preparation,” Judge Hand stated, as we

quoted above, that a valid defense is shown when the accused is

“ready and willing to commit the offense” when the opportunity

arises, and then significantly added:

    “In that event the inducement which brought about the
    actual offence was no more than one instance of the
    kind of conduct in which the accused was prepared to
    engage; and the prosecution has not seduced an innocent
    person, but has only provided the means for the accused
    to realize his preexisting purpose.”

Sherman, 200 F.2d at 882 (emphases added).

    The first emphasized words convey the thought that the

second   means   of   showing   predisposition,   i.e.,   having   the

requisite “design,” does not mean “prepared” in the sense of

having taken specific preparatory steps to accomplish an offense,

or, in Chief Judge Jacobs’ words, a “well advanced” “course of

conduct”; rather, as the second emphasized word makes clear, it

means “prepared” in the sense of being ready to commit the

offense once the opportunity is presented.        If the accused has

a “preexisting purpose” to commit offenses such as, or similar

to, the charged offenses, then he has the requisite preparedness.

That is enough to have the requisite “design.”

    We doubt that the potential terrorists who are available to


                                 -27-
be recruited by Al Qaeda or similar groups have already “formed”

a “design” to bomb specific targets, as Chief Judge Jacobs

narrowly defines those terms.      Their predisposition is to have

a state of mind that inclines them to inflict harm on the United

States, be willing to die like a martyr, be receptive to a

recruiter’s presentation, whether over the course of a week or

several months, of the specifics on an operational plan, and

welcome an invitation to participate.       The Air Force personnel

at Stewart Airport and the congregants at two synagogues in the

Bronx are fortunate that the person who first approached Cromitie

and suggested an operational plan was only a Government agent.

    We detail in Part I(B)(1)(b), below, the evidence that

permitted the jury to find that Cromitie had the requisite

“design.”    Before outlining that evidence, we first consider at

what point predisposition must be shown and then consider what

types of evidence are available to prove a pre-existing “design.”

    (2) Time of Predisposition

    Before    the   Supreme   Court’s   decision   in   Jacobson,   the

prevailing rule had been that predisposition must be shown to

have existed prior to inducement by a government agent. See

United States v. Williams, 547 F.3d 1187, 1198 (9th Cir. 2008);

United States v. Francis, 131 F.3d 1452, 1456 (11th Cir. 1997);

                                 -28-
United States v. Rodriguez-Andrade, 62 F.3d 948, 954-95 & n.4

(7th Cir. 1995); United States v. Palow, 777 F.2d 52, 55 (1st

Cir. 1985); see also United States v. Williams, 705 F.2d 603, 618

n.9 (2d Cir. 1983) (“Simply cultivating the friendship of a

target preparatory to presenting a criminal opportunity is not

inducement to commit a crime”).

    However, in Jacobson the Court stated that the prosecution

must prove that “the defendant was            disposed to commit the

criminal act prior to first being approached by government

agents.” 503 U.S. at 549.         The Court’s support for this new

standard is curious.       First, the Court cited United States v.

Whoie, 925 F.2d 1481 (D.C. Cir. 1991).        The District of Columbia

Circuit there urged its district judges to follow the model

instruction in the Second Circuit, which the Court correctly

reported as stating that the prosecution’s burden is to prove

that the defendant was ready and willing “before the inducement

to commit the crime.” Id. at 1486 (emphasis added); see L. Hand,

J. Siffert, W. Loughlin & S. Reiss, Model Jury Instructions No.

807, ¶ 8.07, at 8-30 (1990).      Second, the Supreme Court added a

footnote   that   relied   on   the   fact   that   the   Government   had

“conceded” that its evidence was probative “because it indicated

petitioner’s state of mind prior to the commencement of the

                                  -29-
Government’s     investigation.”      Jacobson,      503   U.S.    at    549   n.2

(emphasis in original).

       Whether   Jacobson    should     be    understood      as        requiring

predisposition prior to an agent’s contact, as the text states,

or prior to inducement or investigation, as the Court’s cited

authorities state, we feel obliged to apply the standard stated

in the text, and consider Cromitie’s state of mind prior to the

first contact with Hussain.

       (3) Type of Evidence Relevant to Predisposition

       Obviously any relevant evidence of what a defendant says or

does    before   “first   being   approached      by   Government        agents,”

Jacobson, 503 U.S. at 549, is admissible.                   Not as clearly

admissible is evidence of what a defendant says or does after

inducement.      Although as a general matter “a defendant’s state

of mind . . . can be inferred from his actions and statements,”

United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993), a broad

application of that principle would undermine the entrapment

defense     by    permitting      any      induced     conduct      to      prove

predisposition.     To guard against that risk, the Supreme Court

has required that conduct of a defendant, after contact by

Government agents, offered to prove predisposition, must be

“independent and not the product of the attention that the

                                    -30-
Government had directed at [the defendant].” Jacobson, 503 U.S.

at 550; see United States v. Squillacote, 221 F.3d 542, 565-66

(4th Cir. 2000) (Predisposition may be proved by evidence of

“independently motivated behavior that occurs after government

solicitation begins.”).11    Of course, what a defendant says after

contacted   by   agents     is   generally   admissible     to   prove

predisposition because, although some post-contact conduct might

be the product of inducement, it will be a rare situation where

a defendant can plausibly claim that the inducement caused him

to say something that evidenced predisposition.12         This reality


    11
       The District Court charged the jury, “Although you may
consider evidence relating to a defendant’s conduct after he was
first approached, you may do so only to the extent that it shows
something about the defendant’s state of mind before that point.”
Tr. 3488. This statement was too broad in that it did not limit
consideration of post-contact conduct to “independently motivated
behavior.” Squillacote, 221 F.3d at 565. However, there was no
objection to the wording of this portion of the charge, although
the defendants did object to the omission of language prohibiting
consideration of all post-contact conduct.

     Concerning the Court’s statement of the entrapment standard,
the opinion in Cromitie II contains a typographical error, 2011
WL 1842219, at *3. The word “or” should be “only,” as is evident
from the language in United States v. Myers, 692 F.2d 823, 849
(2d Cir. 1982), which Cromitie II is quoting.
    12
       Judge McMahon was understandably perplexed by the apparent
tension between Jacobson’s implicit approval of the use of a
defendant’s post-contact conduct, as long as it is independent
and not the product of Government attention to the defendant, and
the following sentences in United States v. Brand, 467 F.3d 179,
                                 -31-
informs our subsequent discussion of Cromitie’s post-June 13

statements in assessing his predisposition.

    In considering the defendants’ entrapment defense, we first

discuss their claim of entrapment as a matter of law and then



192 (2d Cir. 2006): “Brand is correct in pointing out that the
government’s reliance on certain evidence of acts that occurred
after Brand’s initial contact with government agents is
misplaced. This evidence would not be probative of ‘petitioner’s
state of mind prior to the commencement of the Government’s
investigation.’” (quoting Jacobson, 503 U.S. at 549 n.2 (internal
quotation omits Jacobson’s emphasis of “prior”)). See Cromitie
II, 2011 WL 1842219, at *13-15.

     She endeavored to reconcile the tension by pointing out that
when courts consider whether predisposition is shown by a
defendant’s prompt response to the Government solicitation, they
necessarily rely on post-contact conduct, from which she properly
reasoned that the language of Brand was overly broad. See id. at
*13. Indeed, she properly characterized the language as dictum,
noting that in Brand the Government had produced (1) abundant
pre-contact evidence about the defendant’s state of mind before
the first contact with the Government’s agents and (2) sufficient
evidence of an immediate response to the Government’s
solicitation such that later indication of such a response was
unnecessary. See id.

     To her well reasoned analysis, we add only that Brand’s
quotation from Jacobson was somewhat extravagantly enlisted. The
words “petitioner’s state of mind prior to the Government’s
investigation” were not said to indicate that all post-contact
conduct was inadmissible to prove predisposition; they were said
to complete the thought that the Government’s valid post-contact
evidence “developed during the course of its investigation” was
“probative because it indicated petitioner’s state of mind prior
to the commencement of the Government’s investigation.” Jacobson,
503 U.S. at 549 n.2 (emphasis in original).


                              -32-
their challenge to the jury charge on entrapment.

    (B) Entrapment as a Matter of Law

    The defendants presented their defense of entrapment to the

jury through cross-examination and summations.         By its verdicts

of guilty, the jury rejected the defense.              On appeal, the

defendants contend that entrapment was established as a matter

of law, a claim we understand to mean that on the facts of this

case, no reasonable jury could find predisposition beyond a

reasonable doubt.    See Jacobson, 503 U.S. at 553 (entrapment as

a matter of law found where “[r]ational jurors could not say

beyond a reasonable doubt that petitioner possessed the requisite

predisposition prior to the Government’s investigation”).             We

consider this claim first as to Cromitie and then as to the other

defendants.

    (1) Cromitie

    (a) Inducement. Because the conduct of government agents is

the focus of the inducement component of the entrapment defense

and is the entirety of a claim of outrageous government conduct,

the factual predicates of the entrapment and the due process

claims   are   somewhat   related,   although   the   applicable   legal

principles are distinct.     In assessing the inducement component

of Cromitie’s entrapment claim, we will consider only the facts

                                 -33-
sufficient to show inducement, leaving the additional details of

the Government’s alleged misconduct for assessment of the due

process claim below. See Part II(A)-(E).

    The Government initially opposes Cromitie’s entrapment claim

by contending that there was no inducement.         In the Government’s

view, once Cromitie indicated in his first discussion with

Hussain   that   he    wanted   to   “do    something   to   America”    and

thereafter evinced a willingness to act upon that desire, “[a]ny

follow-up remarks by [Hussain] . . . lack the specificity to

constitute   ‘soliciting,       proposing,    initiating,    broaching    or

suggesting the commission of the offense.’” Br. for Government

at 45 (quoting United States v. Dunn, 779 F.2d 157, 158 (2d Cir.

1985)).   Although Hussain’s efforts to persuade Cromitie do not

lack specificity, the Government seems to be arguing that his

efforts are not relevant to inducement because          Cromitie had the

requisite predisposition before their initial meeting on June 13,

2008.   However, in this case, Cromitie’s statements on that date

arguably do not make it clear whether he then had the requisite

predisposition.       We therefore need to consider what he said and

did thereafter, but, as we discuss below, see Part I(B)(1)(b),

the only post-June 13 statements and actions that can be looked

at to give meaning to Cromitie’s June 13 statements are those

                                     -34-
that are independent of any inducement.              Hussain’s efforts to

persuade Cromitie after June 13 are relevant to both inducement

and the ultimate issue of predisposition.

    In   this   case,   Hussain’s    efforts    to     persuade    Cromitie

constituted inducement. As the District Court – with the benefit

of hearing the recorded evidence and seeing the trial witnesses

– forcefully stated, “I believe beyond a shadow of a doubt that

there would have been no crime here except the government

instigated   it,   planned   it,    and    brought    it   to   fruition.”13

Sentencing Transcript 63.      The        record fully supports this

statement.   Hussain’s efforts to persuade Cromitie to commit the

charged offenses persisted throughout the eleven-month period

from their initial meeting until the arrest.               In addition to

proposing specifics of the planned attacks and supplying bombs


    13
       Judge McMahon also said, “[A]fter reviewing the record yet
again, I am left with the firm conviction that if the Government
had simply kept an eye on Cromitie, and moved on to other
investigations, nothing like the events of May 20, 2009 would
ever have occurred.” Cromitie I, 781 F. Supp. 2d at 226.
Forceful as this observation is, we understand it to mean, in
view of Judge McMahon’s subsequent conclusion that the Government
proved Cromitie’s predisposition, that Cromitie on his own would
not have planned and carried out an elaborate bombing attack.
At sentencing, she explicitly described Cromitie as “one who was
incapable of committing an act of terrorism on his own.” Sent.
Tr. 57.    These observations do not in any way preclude a
predisposition to participate in terrorist activities if
approached by a real terrorist recruiter.
                                   -35-
and missiles, Hussain’s inducements included offers of $250,000,

a barber shop at a cost of $70,000, a BMW, and an all-expense-

paid, two-week vacation to Puerto Rico for Cromitie and his

family. One portion of Hussain’s testimony, elicited on redirect

examination, is revealing:

    Q. “[W]hat did the FBI tell you to do?”

    A. “The FBI . . . told me to go a little bit harder on
    him [Cromitie] and put some pressure on him, see where
    he comes out given the opportunity.”

Trial Tr. 2488.

    At trial, the Government disputed that Hussain had offered

$250,000 to Cromitie.      We set forth in detail at this point what

the record reveals on this issue because whether Hussain offered

Cromitie this amount of money is, or might be, pertinent to three

of the defendants’ claims: sufficient inducement to require the

prosecution   to   prove    predisposition,   outrageous   government

conduct in violation of the Due Process Clause, see Part II,

infra, and, because Hussain denied making the cash offer, the

prosecution’s knowing use of perjured testimony in violation of

the Due Process Clause, see Part III, below.

    A recorded conversation on April 5 contained the following:

    Cromitie: “I have to try to make some money brother.”

    Hussain: “I told you, I can make you 250,000 dollars,

                                  -36-
    but you don’t want it brother.”

JA 4486. Hussain testified that he told Cromitie that “he’ll get

a lot of money.” Trial Tr. 892.           In a recorded phone call to

Cromitie on May 1, Hussain said, “I’m going to Florida to pick

up the, the money.” JA 4497.        Later that night, in a recorded

phone call to Payen, Cromitie said, “The cash rolled in,” id. at

4502, and in a recorded phone call to Onta Williams still later

that night, said, “The cash came through,” id. at 4504.

    The Government’s dispute as to whether Cromitie was offered

$250,000   is   based   on   Hussain’s    testimony,    elicited   by   the

prosecution, that “$250,000” was a code word for the cost of the

“equipments.” Trial Tr. 1036.            On cross-examination, Hussain

characterized “$250,000” as a code word for the cost of the

entire operation. Id. at 1797, 1800-01.                On summation, the

Government argued to the jury that “evidence that you saw[]

supports what [Hussain] told you, as crazy as it may sound.”14 Id.

at 3185-86.     Undermining Hussain’s claim that “$250,000” was a

code word, apart from the claim’s inherent implausibility, are

the facts that (1) Hussain never told Cromitie that $250,000 was

a code word, a more-than-curious omission given that the two men



    14
         We discuss this “evidence” at footnote 31.
                                  -37-
agreed on numerous code words for things and people, even using

“sun” to mean “mission,” id. at 1880, (2) Hussain never told the

FBI that he was using “$250,000” as a code word, and (3) Hussain

admitted on direct examination that he told Cromitie “he’ll get

a lot of money.” Id. at 892.          The rule of appellate review after

a conviction that the evidence is to be viewed in the light most

favorable to the prosecution, see United States v. Chavez, 549

F.3d 119, 124 (2d Cir. 2008), does not require us to accept

Hussain’s code word claim where no reasonable juror could believe

the claim was true. Judge McMahon found, in assessing Cromitie’s

outrageous government conduct due process claim (as to which she

was the trier of fact) that Hussain “offered Cromitie as much as

a    quarter      of    a   million   dollars   to    participate     in   a

mission. . . .[T]here can be absolutely no question that such an

offer was made.” Cromitie I, 781 F. Supp. 2d at 219.                 We see

absolutely no basis for rejecting that finding.

      (b) Predisposition.         With respect to the three means of

proving predisposition, it is clear that Cromitie had not engaged

in   a   course    of   similar   conduct    prior   to   the   Government’s

inducement, nor did he readily agree to committing the charged

offenses.      Thus, the issue becomes whether, prior to inducement,

he had an “already formed design to commit the crime or similar

                                      -38-
crimes.” Becker, 62 F.2d at 1008 (emphasis added).

    On the first day that Hussain met Cromitie, Hussain quotes

Cromitie as saying, “I want to do something to America.” Trial

Tr. 682.        The potentially ominous meaning of these words was

considerably       clarified      by    Cromitie’s    immediately     preceding

statement that he wanted “to die like a shahid, a martyr,” id.

at 681, and the fact that, as he said them, he pointed his right

index finger in the air in a gesture Hussain testified is used

“by somebody[] in radical Islam” to “mean[] taking an oath in

front of Allah to do take part of [sic] crime or Jihad act they

want to do.” Id. at 2456.              The jury was entitled to think that

wanting    to    die   like   a   martyr,       coupled   with   wanting   to   do

something to America, meant a willingness to be a suicide bomber,

even though Cromitie never planned to sacrifice his own life.

    Fully       indicating     that     Cromitie’s    initial    statements     to

Hussain revealed a pre-existing design to commit terrorist acts

against the interests of the United States are these later

statements (all words in quotation marks were recorded):

    - As early as July 8, 2008, Cromitie told Hussain that
    he wanted to join JeM, which he believed was a
    terrorist organization in Pakistan.

    - Cromitie expressed an interest in buying “stuff” from
    Hussain, who had previously told Cromitie that “stuff”
    included guns and missiles.

                                         -39-
- When asked, “[H]ave you ever thought about doing
something here?” Cromitie answered, “I have been
wanting to do that since I was 7.” JA 3285-86.

- Also on November 28, Cromitie told Hussain he wanted
to do something “a little bigger” than the bombing of
a police station, id. at 3304, which he claimed to have
done.

- “I’d rather go in and bomb some place . . . .” Id. at
3302.

- “I would actually like to put a fucking bomb in the
back of a cop car while he’s sitting in the
motherfucker and watch him just explode, I would be the
most happiest person in the world.” Id. at 3310.

- “I would like to hit the bridge [to New Jersey].” Id.
at 3294.

- When Hussain said, “Let’s pick a target,” Cromitie
suggested “Stewart Airport.” Id. at 3536.

- “If survival for me is taking out one of these
American planes or whatever, that’s my fight.” Id. at
3287.

- “I’d like to get a synagogue. Me. Yeah, personally.”
Id. at 3316.

- “I don’t care if it’s a whole synagogue of men.” Id.
at 3717.

- “So it doesn’t matter to me what they do to me after
I killed President Bush.” Id. at 2995.

- “When the call come, I’m gonna go, ‘Allahu akbar,’
and I’m gone.   There’s nothing no one can do.   I’m
gonna go all the way. There’s no, no turn back.” Id.
at 2903.

- “I’m a soldier here, though, but not for America.”

                         -40-
    Id. at 3022.

    Cromitie’s recorded words explained his motives for what he

wanted to do:

    - “[T]hey taking down our Islamic countries. What do
    we do to make that stop? So, we start taking something
    down here.” Id. at 2824.

    - “They [air force planes] bringing ’em [troops] over
    there [Afghanistan] to do damage to us. So, if they
    don’t have the planes to carry ’em over there, you
    can’t do too much damage.” Id. at 3660.

    Indeed,       Cromitie’s   recorded   words    admitted      his

predisposition:

    - “You [Hussain] already seen I had some issues with
    this world over here.    So, and you know I would do
    something to get back at them. Yeah, I would. So you
    already knew I was like that. It wasn’t you who was
    talking to me, I talked to you about it. When we first
    met in the parking lot, I talked to you about it.” Id.
    at 3309.

    - “[I]f I’m doing something, it’s because I wanted to
    do that for so long, myself, because I know it a [sic]
    be right. You understand? So, you have nothing to say
    about that.   Before I met you, I already told you
    already.” Id. at 3615.

    - “So you have, you [Hussain] didn’t cause anything.
    When on the day of judgment Allah wanna say, ‘Ah, yes
    Maqsood,[15] you enticed Abdul Rahman[16] to do that.’ No!
    I would be the truth on that day: No! You [Allah] gave


    15
       “Maqsood” is one of the names Cromitie used to refer to
Hussain.
    16
         Cromitie’s name in his terrorist role.
                                -41-
    me my own will.    You [Allah] gave me my own mind
    setting, Allah. I did that on my own.” Id.

    These recorded statements, all of which were independent of

any inducement, gave indisputable meaning to Cromitie’s initial

ominous, though somewhat generalized, words about wanting to “do

something to America” and “die like a shahid, a martyr.”17               The

later statements also gave the jury ample basis for believing

Hussain when he testified about what Cromitie had said to him

during their first unrecorded conversation.

    Chief Judge Jacobs discounts the significance of some of

these    statements,   contending    that   they   were   the   result    of

“badgering” by Hussain. See __ F.3d at __ [typescript at 7] We

disagree.    Cromitie’s statement that he wanted to join JeM was

volunteered and preceded only by the question whether he wanted

to attend a conference in Pakistan with JeM.         His statement that


    17
       Chief Judge Jacobs contends that Cromitie’s statements
made after inducement “might show predisposition, but only if
they refer back to Cromitie’s state of mind prior to inducement.”
__ F.3d at __, [typescript at 6] Although statements after
contact with a government agent must be probative of the
defendant’s state of mind prior to such contact, see Jacobson,
503 U.S. 549, as Cromitie’s statements were, there is no
requirement that the statements “refer back” to prior state of
mind.   As it happens, the first two of the three statements
quoted above explicitly refer back the time when and before
Cromitie met Hussain (“When we first met in the parking lot, I
talked to you about it,” and “Before I met you, I already told
you already.”).
                                    -42-
he wanted to bomb the George Washington Bridge was preceded only

by the question “[W]hat, I mean, in your mind, were your best

targets here? In New York?” JA 3292.        Cromitie’s identification

of Stewart Airport was preceded only by Hussain’s saying, “Let’s

pick a target.” Id. at 3536. Cromitie’s statement that he wanted

to bomb a synagogue was volunteered, without any prior question,

while watching a television report of a bombing in Mumbai.             We

see no badgering eliciting these revealing statements.            Nor do

we agree that these and the other statements set out above fail

to reveal Cromitie’s state of mind prior to the first meeting

with Hussain in June 2008.      On the contrary, they make entirely

clear what Cromitie had in mind when he told Hussain at that

first meeting that he wanted to “do something to America.”

    Chief Judge Jacobs also discounts Cromitie’s statement that

he wanted “to die like a martyr” as “boastful piety.” __ F.3d at

__ typescript at 8] We see nothing pious in wanting “to die like

a martyr” when said in the same breath with wanting “to do

something to America,” especially when the statement is followed

in a month with a volunteered desire to join what Cromitie

believed was a Pakistani terrorist organization.

    It   is   true   that   during   the   many   months   of   Hussain’s

persuasion, Cromitie’s commitment to the terrorism plot was not

                                 -43-
unwavering.   For example, a recorded conversation on December 10

included the following:

    Cromitie: “I’m gonna try one more move, Hak[18]. If the
    move don’t work, it doesn’t matter, I’m gonna leave it.
    Is that okay with you?” JA 3525.

    Hussain: “That’s perfectly fine, brother.” Id.

But moments later, Cromitie said:

    “’Cause some things just don’t work out. But let me
    try something else.   I got something else planned.
    There’s always a plan ‘B.’   You understand? There’s
    always a plan ‘B.’   So don’t worry.   Just be easy.
    Okay?” Id.

    After Hussain returned from a two-month trip to Pakistan, in

a recorded conversation on February 23, 2009, this colloquy

occurred:

    Hussain: “You talked about synagogues, remember?”

    Cromitie: “Yeah.”

    Hussain: “You still wanna do it?”

    Cromitie: “I’m thinking about it.     I have    to think
    about it. I got so much, you know what, it’s    not that
    I don’t wanna do it. It’s just that, since      you been
    gone, I been, like, okay I guess everything’s   down the
    drain now.”

    . . . .

    Hussain: “[T]here’s some things that you were supposed
    to do while I was gone.”


    18
         Another name Cromitie used to refer to Hussain.
                               -44-
    Cromitie: “I just dropped everything.”

Id. at 3595-96.      But Cromitie then continued:

    “I didn’t forget everything, though.        I remember
    everything.     I remember the codes, the words,
    whatever. . . . I think I need to, I wanna do it.
    Because everything I been watching I been wanting to do
    everything. Ever since you been gone.”

Id. at 3596.

    On February 24, Cromitie told Hussain that he would be going

to North Carolina, a trip he apparently did not make.         There was

no contact between them for the next six weeks despite Hussain’s

efforts to reach Cromitie by phone.          Then on April 5, Cromitie

resumed contact by phoning Hussain.          This was the call in which

Hussain    offered    Cromitie   $250,000.      Cromitie   asked   for   a

meeting.    When they met on April 7, Hussain pressed Cromitie as

to where he stood:

    “So you have to tell, you have to tell me yeah.          Can we
    do it, or can we not do it?” Id. at 3716.

Cromitie initially replied, “I’m thinking,” and then, warming to

the plan, said:

    “I’m gonna tell you I don’t care if it’s a whole
    synagogue full of men. . . . I would take ’em down, I
    don’t even care. ’Cause I know they are the ones. . . .
    [S]ee, I’m not worried about nothing. Ya know? What
    I’m worried about is my safety.”

Id. at 3717.         Continuing with their plans,       they discussed


                                   -45-
lookouts.      On April 10, Hussain and Cromitie picked up David

Williams and conducted surveillance of the synagogues. From that

point on, events moved rapidly to the May 20 finale.

       Despite moments of wavering, which do not preclude a finding

of predisposition, see United States v. Davila-Nieves, 670 F.3d

1, 4 (1st Cir. 2012) (predisposition despite seven-month interval

between informant’s contacts with defendant); United States v.

Evans, 924 F.2d 714, 716 (7th Cir. 1991) (“second thoughts

following initial enthusiasm do not establish entrapment”),

Cromitie revealed his willingness, indeed his eagerness, to

commit acts of terrorism through his own recorded statements.

Two examples stand out.       Referring to the initial conversation

with Hussain, Cromitie recalled in a recorded conversation,

“[Y]ou already knew I was like that.          It wasn’t you who was

talking to me, I talked to you about it.        When we first met in

the parking lot, I talked to you about it.” JA 3309.                  And

contemplating that “on the day of judgment” Allah would say that

Hussain had enticed him, Cromitie said he would answer, “No! You

[Allah] gave me my own will. . . . I did that on my own.” Id. at

3615.

       From everything that Cromitie said, the jury was entitled to

find    that   he   had   a   pre-existing   “design”   and   hence    a

                                  -46-
predisposition to inflict serious harm on interests of the United

States,    even     though    Government          officers     afforded    him   the

opportunity and the pseudo weapons for striking at specific

targets.      “[T]he    fact       that    officers      or    employees    of   the

Government merely afford opportunities or facilities for the

commission of the offense does not defeat the prosecution.”

Jacobson, 503 U.S. at 548 (internal quotation marks omitted).

“It is sufficient if the defendant is of a frame of mind such

that once his attention is called to the criminal opportunity,

his decision to commit the crime is the product of his own

preference    and    not     the    product       of   government      persuasion.”

Williams, 705 F.2d at 618.

    (2) David Williams, Onta Williams, and Payen

    (a) Inducement.          We will assume for the argument that the

Government’s      inducement        of     Cromitie,      some    of    which    was

undoubtedly    relayed       by    him    to     the   other   three   defendants,

sufficed to show that they too were induced. See United States

v. Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988) (“derivative

entrapment defense available ‘where government agents act through

private citizens’”) (quoting United States v. Buie, 407 F.2d 905,

908 (2d Cir. 1969), aff’d without consideration of this point sub

nom. Minor v. United Sates, 396 U.S. 87 (1969)); United States

                                          -47-
v. Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980) (government

inducement via third party), amended, 669 F.2d 37 (2d Cir. 1981),

aff’d after remand, 677 F.2d 191 (2d Cir. 1982).    We note that

only Cromitie was offered $250,000; the other defendants were

each offered $5,000. Trial Tr. 1035.

    (b) Predisposition.   The Government does not contend that

the predisposition of David Williams, Onta Williams, and Payen

was shown by prior similar conduct or a pre-existing design.

Instead, the Government contends that their predisposition,

sufficient to defeat an entrapment defense, is shown by their

“‘ready response to [any] inducement.’” Br. for Government at

46 (quoting Al-Moayad, 545 F.3d at 154). See United States v.

Viviano, 437 F.2d 295, 299 (2d Cir. 1971) (Predisposition may be

shown by “a willingness to commit the crime for which [the

defendant] is charged as evidenced by [his] ready response to the

inducement.”).

    The District Court acknowledged that there was “no direct

evidence of when or how these [three] defendants were solicited.”

Cromitie II, 2011 WL 1842219, at *15.     Nevertheless, after a

meticulous review of the evidence, see id. at *16-23, Judge

McMahon concluded that circumstantial evidence of what the three

defendants said and did shortly after they had been recruited

                              -48-
sufficed to permit the jury to find a “ready response” that

defeated their entrapment defense, see id. at *23. As she noted,

“[N]o more than a few days[] passed” between the time that

Cromitie first talked to David Williams and the time when David

Williams “showed himself to be fully committed” to the plan, id.

at *19, and “Onta Williams and Payen agreed to become involved

‘promptly’ after they were first approached” and “were willing

to   join   in   a   terrorism    plot    without   any   hesitation   or

reservation,” id. at *22.        We fully agree with her analysis and

conclusions.19

     Although all three defendants were recruited just to be

lookouts, they not only agreed to the entire plan promptly but

expressed enthusiasm for it. Among their statements, most of

which were recorded, are these:

     - David Williams: “The ones that should be hit is the
     ones that’s the cargo planes.” JA 3853. “[The attacks
     would] be a hell of a story though.        Tell your
     grandkids.” JA 4267.

     - Onta Williams: “[Blowing up the planes is] gonna be


     19
       Judge McMahon was careful to note that her analysis
depended on a reading of Brand that permits post-inducement
conduct to prove the “ready response” that defeats entrapment.
See Cromitie II, 2011 WL 1842219, at *23. We agree that Brand
does so. What we question in Brand is only the dictum that some
post-inducement conduct is not also relevant to prove a
defendant’s pre-existing design. See footnote 12, supra.
                                   -49-
      a double whammy.” Id. at 4275.    “So if we kill them
      here, it would all be equal [to U.S. military
      operations abroad].” Trial Tr. 2528.

      - Payen: (responding to Hussain’s caution that the plot
      was “secret”) “Insha’ Allah. I know what time it is.
      There’s a lot of things I’ve done in my lifetime,
      Hakim.[20]” JA 4117. “I’m doing this for the sake of
      Allah.” Id. at 4314.

      Although, as Judge McMahon stated, “It is beyond question

that the Government created the crime here,” Cromitie II, 2011

WL 1842219, at *23, the evidence sufficed to permit the jury to

find predisposition and reject the entrapment defense.                 That

defense was not established as a matter of law.

      (C) Jury Charge on Entrapment

      The defendants challenge the jury charge on entrapment on

the   ground    that   the   charge    did   not   instruct   the   jury   in

accordance with the Seventh Circuit’s decision in United States

v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994) (in banc).                  In

that decision, a closely divided (6-5) in banc court ruled that

an entrapment defense succeeds as a matter of law unless a

defendant, whom government agents have induced to commit an

offense, is “in a position without the government’s help to

become involved in illegal activity.” Id. at 1200. As then-Chief



      20
           “Hakim” was another name the defendants called Hussain.
                                      -50-
Judge Posner contended, predisposition “has positional as well

as dispositional force.” Id. He amplified this “positional” view

of predisposition as follows: “The defendant must be so situated

by reason of previous training or experience or occupation or

acquaintances that it is likely that if the government had not

induced him to commit the crime[,] some criminal would have done

so . . . .” Id.    He offered as examples a public official in a

position to accept a bribe, a drug addict to sell drugs, and a

gun dealer to make illegal gun sales.           Urging us to adopt the

Seventh Circuit’s view, the defendants argue that none of them

was in a position to acquire Stinger missiles or bombs to carry

out the proposed attacks.

     We reject the Seventh Circuit’s expansion of the entrapment

defense   to   permit   an   induced    defendant,   predisposed   under

existing standards to commit a crime, to establish the defense

of entrapment simply because, prior to the unfolding               of a

government sting, he was not in a position where it was likely

that he would have figured out how to commit the offense and how

to   acquire   necessary     devices.     The   principal   dissent   in

Hollingsworth has forcefully set forth the shortcomings of this

ill-advised expansion, see 27 F.3d at 1213 (Ripple J., with whom



                                  -51-
Bauer,   Coffey,   Kanne,   and    (in     part)   Easterbrook   join,21

dissenting),22 and the Ninth Circuit has rejected it, see United

States v. Thickstun, 110 F.3d 1394, 1398 (9th Cir. 1997).             A

person who has a pre-existing design to commit terrorist acts

against United States interests or who promptly agrees to play

a part in such activity should not escape punishment just because

he was not in a position to obtain Stinger missiles and launch

them at United States airplanes.         The Government need not leave

him at large until a real terrorist suggests such action and


    21
       Judge Easterbrook concurred fully in the portions of Judge
Ripple’s dissent rejecting the “positional” approach to
predisposition. He concurred partially only to disagree with
Judge Ripple on an unrelated point.
    22
        To their dissenting opinions, we add only that the
“positional” test does not explain why a prompt “yes” to a
solicitation to commit a crime is indicative of a pre-existing
interest in committing a crime depending on the defendant’s
position. In the several Abscam cases in which convictions were
affirmed by this Court, see United States v. Silvestri, 719 F.2d
577 (2d Cir. 1983); United States v. Murphy, 715 F.2d 39 (2d Cir.
1983); United States v. Thompson, 710 F.2d 915 (2d Cir. 1983);
Williams, 705 F.2d 603; United States v. Myers, 692 F.2d 823 (2d
Cir. 1982), the prompt agreement by a Senator and many
Representatives to accept a bribe after it was offered told us
only that they were willing to commit the crime of bribery, but
it left us unenlightened as to whether they had entertained the
thought of accepting a bribe before one was offered or simply
jumped at the first opportunity.      Nor did their position as
members of Congress answer that question. What their positions
provided was the ability to take the actions (introduce bills)
for which the bribes were offered, not an indication that doing
so was previously in their minds.
                                  -52-
supplies real missiles.

    The defendants’ challenge to the jury charge is rejected.

II. Outrageous Government Conduct

    As a claim distinct from their claim of entrapment as a

matter of law, the defendants contend that their convictions

should be reversed because the Government’s conduct in persuading

Cromitie, and the others through Cromitie, to commit the charged

offenses was so outrageous as to violate the Due Process Clause.

In Hampton v. United States, 425 U.S. 484 (1976), the Supreme

Court, by a vote of 5 to 3, ruled that, even as to a defendant

predisposed to commit an offense, outrageous government conduct

could    invalidate   a   conviction.23   The   conduct   of   the   law


    23
       See Hampton, 425 U.S. at 492-93 (Powell, J., with whom
Blackmun, J., joins, concurring in the judgment); id. at 497
(Brennan, J., with whom Stewart and Marshall, JJ., join,
dissenting). Justice Stevens did not participate. See id. at
491.

     Criticizing the three-member plurality (Rehnquist, J., with
whom Burger, C.J., and White, J., join, 425 U.S. at 485-91),
Justice Powell wrote: “The plurality thus says that the concept
of fundamental fairness inherent in the guarantee of due process
would never prevent the conviction of a predisposed defendant,
regardless of the outrageousness of police behavior in light of
surrounding circumstances. I do not understand Russell[, 411
U.S.   423   (1973),]   or   earlier   cases   delineating   the
predisposition-focused defense of entrapment to have gone so
far . . . .” Hampton, 425 U.S. at 492-93 (footnote omitted).

    Justice Brennan wrote: “The focus of the view espoused by
                                  -53-
enforcement   officials   must   reach   a   “demonstrable   level   of

outrageousness before it could bar conviction.” Id. at 495 n.7

(Powell, J., concurring in the judgment). We have recognized the

same principle. “Government involvement in a crime may in theory

become so excessive that it violates due process and requires the

dismissal of charges against a defendant even if the defendant

was not entrapped.” Al Kassar, 660 F.3d at 121.               We also

recognized this possibility in United States v. Rahman, 189 F.3d

88, 131 (2d Cir. 1999), although cautioning that the alleged

misconduct must “shock the conscience” in the sense contemplated

by Rochin v. California, 342 U.S. 165, 172 (1952) (forced stomach

pumping). See also United States v. Myers, 692 F.2d 823, 836 (2d

Cir. 1982) (“Unlike the entrapment defense, which focuses on the

defendant’s predisposition, th[e] due process claim focuses on

the conduct of the government agents.”).        Only a divided panel



Mr. Justice Roberts [in Sorrells, 287 U.S. at 453], Mr. Justice
Frankfurter [in Sherman, 356 U.S. at 378], and my Brother Stewart
[in Russell, 411 U.S. at 439] is not on the propensities and
predisposition of a specific defendant, but on whether the police
conduct revealed in the particular case falls below standards,
to which common feelings respond, for the proper use of
governmental power. . . . Under this approach, the determination
of the lawfulness of the Government’s conduct must be made as it
is on all questions involving the legality of law enforcement
methods by the trial judge, not the jury.” Hampton, 425 U.S. at
496-97 (internal quotation marks omitted) (ellipsis in original).
                                 -54-
of the Third Circuit has ruled that government conduct violated

due process limits, see United States v. Twigg, 588 F.2d 373 (3d

Cir. 1978),24 and that Circuit has since ruled that the rationale

of Twigg had been limited by Hampton. See United States v.

Beverly, 723 F.2d 11, 12 (3d Cir. 1983).

    Courts   acknowledging     the     possibility    of       dismissal     for

outrageous government conduct have said little about what conduct

would be considered constitutionally “outrageous.”                 Indeed, this

Court has said that this type of claim is “an issue frequently

raised that seldom succeeds.” United States v. Schmidt, 105 F.3d

82, 91 (2d Cir. 1997).    In Al Kassar, we said, “Generally, to be

‘outrageous,’   the   government’s     involvement        in   a    crime   must

involve   either   coercion   or   a   violation     of    the     defendant’s

person.” 660 F.3d at 121.     We have also stated:

    “[W]hether investigative conduct violates a defendant’s
    right to due process cannot depend on the degree to
    which the government action was responsible for
    inducing the defendant to break the law. Rather, the
    existence of a due process violation must turn on
    whether the governmental conduct, standing alone, is so
    offensive that it ‘shocks the conscience’ regardless of
    the extent to which it led the defendant to commit his


    24
       Cromitie argues that the outrageous conduct claim was also
upheld in United States v. Lard, 734 F.2d 1290 (8th Cir. 1984),
see Br. for Cromitie at 46 n.9, but that decision reversed a
conviction after ruling that entrapment was established as a
matter of law, see Lard, 734 F.3d at 1294.
                                   -55-
    crime.”

United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (citation

omitted).   The D.C. Circuit has said that due process limits are

violated only where government misconduct includes “coercion,

violence or brutality to the person.” United States v. Kelly, 707

F.2d 1460, 1476 (D.C. Cir. 1983) (internal quotation marks

omitted).

    As to what does not exceed due process limits, we have said,

“It does not suffice to show that the government created the

opportunity for the offense, even if the government’s ploy is

elaborate     and   the   engagement   with   the   defendant   is

extensive. . . . [F]eigned friendship, cash inducement, and

coaching in how to commit the crime do not constitute outrageous

conduct.” Al Kassar, 660 F.3d at 121.

    In asserting their claim of outrageous conduct, all four

defendants focus on the Government’s role in the planning of, and

preparing for, the aborted attacks; Cromitie cites in addition

Hussain’s suggesting that he had a religious obligation to commit

the crimes, exploiting professed love for Hussain, and offering

him large financial benefits.

    (A) Government’s Role in Planning the Crimes

    There is no doubt that Government agents planned the entire

                                -56-
operation with respect to launching missiles to destroy airplanes

at Stewart Airport.       The idea of bombing synagogues appears to

have    originated    with     Cromitie,    although     Government    agents

supplied the fake bombs and instructed the defendants how to

detonate them. In Judge McMahon’s words, “The Government invented

all of the details of the scheme . . . .” Cromitie I, 781 F.

Supp. 2d at 220.

       But as with all sting operations, government creation of the

opportunity to commit an offense, even to the point of supplying

defendants with materials essential to commit crimes, does not

exceed due process limits. See Russell, 411 U.S. at 431-32;

Rahman, 189 F.3d at 131.        Once the FBI learned that Cromitie, in

his very first encounter with Hussain, had expressed a desire to

“do something to America” and had given an ominous meaning to

this statement by saying he wanted to die like a martyr, the FBI

agents would have been derelict in their duties if they did not

test    how   far   Cromitie   would   go   to   carry   out   his   desires.

Determining     whether Cromitie would go so far as to launch

missiles at military aircraft was not outrageous government

conduct.

       (B) Exploiting Religious Views

       Cromitie amplifies the outrageous conduct claim by arguing

                                    -57-
that Hussain “engaged in proselytizing [him] to convert him from

a   moderate   if    angry,     Muslim,   to   one    committed     to   violent

terrorism in the name of religion.”25 Br. for Onta Williams at 62-

63.   As Cromitie explained to the other defendants at a meeting

a few days before the planned attacks, Hussain had told him,

“[D]on’t do it just for the money.             But do it . . . in the name

of Allah.” JA 4159.

      It is an unfortunate aspect of the modern world of Islam

that within the ranks of the hundreds of millions of law-abiding

Muslims exists a small number of jihadists who have the distorted

view that acts of violence serve Allah.              When a government agent

encounters a Muslim who volunteers that he wants to “do something

to America” and “die like a shahid,” the agent is entitled to

probe the attitudes of that person to learn whether his religious

views have impelled him toward the violent brand of radical Islam

that poses a dire threat to the United States.             Such probing does

not   remotely      implicate    the   religion      clauses   of   the    First

Amendment, as Cromitie argues, see Br. for Onta Williams at 64-

65, nor constitute outrageous government conduct.



      25
       These words appear in the brief for Onta Williams at 62-
63; Cromitie has adopted all of his co-defendants’ arguments. See
Br. for Cromitie at 3.
                                       -58-
    (C) Exploiting Professed Love

    Cromitie further argues that Hussain exploited Cromitie’s

professed love for Hussain by reciprocating with expressions of

feigned love, thereby using their relationship to manipulate

Cromitie into agreeing to the planned attacks. See Br. for Onta

Williams at 68-72.      On numerous occasions Cromitie told Hussain,

“I love you brother,” e.g., JA 2809, 3095, 3153, and Hussain

often replied, “I love you too, brother.” e.g. id. at 2809, 3095,

3153.    On at least one occasion, Hussain flirted with Cromitie:

“Tell me how much you love me.” Id. at 3192.

    Cromitie        argues   that    Hussain’s     exploitation      of   their

relationship is outrageous conduct on a par with the sexual

intercourse that a government agent allegedly engaged in to

seduce a suspect, conduct that our Court has indicated might,

depending on the circumstances, violate due process limitations.

See United States v. Cuervelo, 949 F.2d 559, 567-69 (2d Cir.

1991).    We disagree.       Although we need not determine where the

outer limits of permissible sexual involvement with a suspect

might    be,   we   fully    agree   with    the   Ninth   Circuit   that   the

“illusory cultivation of emotional intimacy” does not exceed due

process limits. United States v. Simpson, 813 F.2d 1462, 1467

(9th Cir. 1987).       “To win a suspect’s confidence, an informant

                                      -59-
must make overtures of friendship and trust and must enjoy a

great deal of freedom in deciding how best to establish a rapport

with the suspect.” Id. at 1466.

    (D) Monetary and Other Benefits

    Finally,     Cromitie   argues   that    the   monetary   and   other

benefits Hussain offered him were so large as to exceed due

process limits on government conduct.        The principal benefit, as

we have discussed above, see Part I(B)(1)(a), was a cash offer

of $250,000, and in addition a barbershop, a new BMW, and a two-

week vacation.

    Our Court has not encountered a government-offered cash

inducement as large as $250,000.            The Abscam cases in this

Circuit involved    bribe payments of $50,000, and we found no due

process violation. See, e.g., Myers, 692 F.2d at 827.26             In Al

Kassar, we ruled that a cash inducement of €125,000 did not

constitute outrageous conduct. See 660 F.3d at 116, 121.              The

D.C. Circuit has ruled in another Abscam case that an offer of

$100,000 to a congressman did not violate due process, see United


    26
       In Myers, the inducement also included offering to bring
multi-million dollar projects to districts of members of
Congress. We ruled that such offers did not violate due process
limits because it is a “normal part of [the members’] public
responsibilities to promote business activity for the benefit of
their constituents.” 692 F.2d at 838.
                                 -60-
States v. Jenrette, 744 F.2d 817, 823-24 (D.C. Cir. 1984), and

the Ninth Circuit has ruled that a finder’s fee of $200,000 to

a potential supplier of large quantities of cocaine did not cross

the due process line, see United States v. Emmert, 829 F.2d 805,

812 (9th Cir. 1987).27

    Even if we were to accept the premise that an offer of money

might,   in   some   unlikely   circumstances,   be   so   large    as   to

constitute outrageous government conduct, we do not believe a

line should be drawn at a fixed dollar amount.        Such an absolute

line would be inconsistent with the flexible standards usually

informing due process limitations. See Morrisey v. Brewer, 408

U.S. 471, 481 (1972).     An amount of money that might constitute

a due process violation should be measured in relation to the

inducement available for a particular criminal act from non-

governmental sources and the nature of the act itself.             A large

sum reflecting the going rate for a murder-for-hire might exceed

due process limits if offered to induce the sale of a small

quantity of marijuana.


    27
       In Williams, the Ninth Circuit, considering a defendant’s
claim that the Government had offered him hundreds of thousands
to perhaps more than a million dollars in potential cocaine
sales, assumed that such an offer constituted inducement, but had
no occasion to assess the offer against due process limitations.
547 F.3d at 1198.
                                  -61-
      With respect to the outrageous government conduct claim,

the   burden   of    proof     rested    with   the    defendants,   and   they

presented no evidence to indicate that $250,000 (plus assorted

other benefits) was more than might plausibly be required to

purchase the services of a person willing to recruit and lead a

team to launch Stinger missiles at an air force base and bomb

synagogues.         Whatever    the     going   rate    for   such   terrorist

activities, only an offer significantly higher would require us

to consider whether due process limits had been exceeded.                   The

monetary benefits offered to Cromitie did not violate the Due

Process Clause.

      (E) Aggregation of Persuasion Techniques

      Although Judge McMahon candidly acknowledged that she was

“not familiar with a case in which so many different tactics were

used on a single individual,” she concluded that “Cromitie

justified the Government’s persistence when he proved to be ready

and willing to commit terrorist acts. . . . [T]here was no

coercion of any sort, no suggestion of duress and no physical

deprivation.” Cromitie I, 781 F. Supp. 2d at 223.                    We agree.

None of the techniques Hussain used to persuade Cromitie or the

other defendants to participate in the government-devised plan,

whether considered in isolation or cumulatively, violated the Due

                                        -62-
Process Clause.

III. Prosecution’s Knowing Use of Perjured Testimony

    “[A] conviction obtained by the knowing use of perjured

testimony is fundamentally unfair, and must be set aside if there

is any reasonable likelihood that the false testimony could have

affected the judgment of the jury.” United States v. Agurs, 427

U.S. 97, 103 (1976) (footnotes omitted); see Giglio v. United

States, 405 U.S. 150, 153 (1972); Drake v. Portuondo, 553 F.3d

230, 240 (2d Cir. 2009);       Perkins v. LeFevre 642 F.2d 37, 40 (2d

Cir. 1981).

    “In order to be granted a new trial on the ground that a

witness committed perjury, the defendant must show that (i) the

witness actually committed perjury; (ii) the alleged perjury was

material; (iii) the government knew or should have known of the

perjury at [the] time of trial; and (iv) the perjured testimony

remained undisclosed during trial.” United States v. Josephberg,

562 F.3d 478, 494 (2d Cir. 2009) (internal quotation marks and

alterations omitted).

    The    perjury is “material” if there is any “reasonable

likelihood that the false testimony could have affected the

judgment   of   the   jury,”    Agurs,    427   U.S.   at   103,   and   the

prosecutor’s knowing use of perjured testimony can violate the

                                   -63-
Due Process Clause even if it           only undermines a witness’s

credibility, see Napue v. Illinois, 360 U.S. 264, 269-70 (1959)

(“A lie is a lie, no matter what its subject, and, if it is in

any way relevant to the case, the district attorney has the

responsibility and duty to correct what he knows to be false and

[to] elicit the truth.”).

    The    defendants    mount   a   vigorous   attack   on   Hussain’s

credibility, claiming that he had told numerous lies prior to the

trial, he testified falsely during the trial, and such falsity

was known or should have been known to the prosecution.            This

claim arises in a context quite different from that of most of

the relevant cases.     Typically the fact that the prosecution was

aware of a witness’s trial perjury comes to light only after the

trial.    That was the situation, for example, in Wallach, where

the prosecution became aware of the perjury of its principal

witness six months after the trial, see United States v. Wallach,

935 F.2d 445, 456 (2d Cir. 1991).       In the pending case, however,

the evidence that Hussain had lied was presented to the jury

during the    trial.     We consider first the false statements

unrelated to the $250,000 offer and then the $250,000 testimony

itself.

    (A) False Statements Unrelated to the $250,000 Offer

                                 -64-
    Most of Hussain’s lies unrelated to the $250,000 offer were

told years before the trial.   They occurred in various contexts:

his asylum application,28 his financial statement in connection

with the presentence report in Albany for his prior conviction,29

his statements in a bankruptcy proceeding,30 and his statements



    28
       Hussain falsely said on his asylum application that
Pakistani police and army officials had given him permission to
leave the country, see JA 1006-07; claimed he had been arrested
in Pakistan for many crimes, but in fact the arrest was for
kidnapping, see id. at 2330-31; and made what he called “a
mistake” in denying on an application for citizenship that he had
never committed any crimes for which he had not been arrested,
see id. at 2290-92.
    29
       Hussain falsely told the Probation Department that he
owned six restaurants when in fact his family owned them, see JA
1047-48, and that his house was worth $160,000, although it was
assessed five months later for $125,000, see id. at 1050-51; he
did not list loans on his financial affidavit prepared for his
presentence report, see id. at 2309, and he lied about the scope
of his fraud violation, see id. at 2278.
    30
       Hussain did not tell the bankruptcy court about the
receipt of trust funds from Pakistan, see JA 1258-60, and omitted
from his bankruptcy petition three cars that he owned and
$100,000 of family business stock, see JA 1128.

     Hussain also omitted mention of a prior arrest when he
applied for a liquor license; see JA 1099-1100, misled a school
district as to where he lived; see id. at 1284, admitted that a
judgment    was    entered    against    him    for    fraudulent
misrepresentations with respect to a hotel he owned; see id. at
1269, and admitted that he wrote a false name for his father, see
id. at 2154, and for his own place of birth when he applied for
a passport in Montreal, see id., but claimed he did this to avoid
detection by terrorists, see id. at 2404.
                               -65-
in a job application, among others.

    Hussain’s lies at trial, with the exception of his denial of

the $250,000 offer and his code word claim, also concerned events

occurring long before the sting operation.   He testified that in

the Albany criminal case he had met his lawyer for the first time

at sentencing and had met him only once, see Trial Tr. 1265-66,

but one of the defense counsel in the pending case reported that

the Albany lawyer told him he had met with Hussain many times

starting two years before sentencing, see id. at 1910.

    Hussain testified about his receipt of funds from a family

trust in Pakistan.   This testimony, if not false, was certainly

inconsistent.   There is no doubt that he received large sums of

money from Pakistan, but it is not clear whether these were loans

or trust income to which he was entitled.       At one point he

claimed that all of the money was a loan from the trust that had

to be returned. See id. at 2349-50, 2854.

    Hussain testified that he paid taxes on the $50,000 he

earned as an informant, see id. at 1633, but also admitted that

he did not pay taxes on this money, see id. at 2936.

    Hussain testified that someone other than himself wrote the

word “died” on his asylum application (referring to his mother),

but in later testimony admitted that he did write the word

                              -66-
“died.” See id. at 2953-54.

    None      of   Hussain’s      lies    before    trial   or    in   his   trial

testimony, except for those concerning the $250,000 offer to

Cromitie,      related     to      the     defendants’      offense      conduct.

Furthermore,       they   had    only    minimal    relevance     to    Hussain’s

credibility in recounting the defendants’ offense conduct in view

of his admission of almost all of them in his trial testimony and

the fact that the principal evidence of such conduct was the

recorded words of the defendants themselves.                 There is thus no

“reasonable likelihood” that these lies “could have affected the

judgment of the jury.” Agurs, 427 U.S. at 103, to the defendants’

detriment.

    (B) False Statements Concerning the $250,000

    The     defendants’         claim    that   Hussain     testified     falsely

concerning the $250,000 offer presents more substantial issues.

These   are    whether     the     testimony       was   false,    whether     the

prosecution knew of the falsity, whether the prosecution should

have known of the falsity, and whether there was any reasonable

likelihood that the false testimony would have affected the jury.

    (1) Falsity of the $250,000 Testimony

    As we have recounted, Hussain testified that he did not

offer Cromitie $250,000 and that “$250,000” was a code word for

                                         -67-
the cost of the mission. Trial Tr. 1797, 1800-01.               His denial of

the offer was shown to be false by the April 5 recorded telephone

call in which he responded to Cromitie’s expressed need for money

by explicitly stating, “I can make you 250,000 dollars.” JA 4486.

In addition, Hussain admitted that he told Cromitie that he would

“get a lot of money.” Trial Tr. 892.             The falsity of the code

word claim, apart from its inherent implausibility, was shown by

the facts that Hussain never told Cromitie that “$250,000” was

a code    word, he testified that he “thought Cromitie would

understand,” he never told the FBI that he was using “$250,000”

as a code word, he admitted that “$250,000” did not appear on his

list of code words, and he admitted that the list did contain

“sun” as a code word for “mission.” Id. at 1880.

    These facts clearly showed that Hussain’s testimony was

false.

    (2) The Prosecution’s Knowledge of the Falsity

    The Government has maintained that the prosecution did not

believe   Cromitie   was    lying.        On   rebuttal       summation,     the

prosecutor flatly declared, “There is no evidence that [Hussain]

offered   anything   more   than     $5,000,”     id.    at    3337,   and   on

summation,   the   prosecutor   urged      the    jury    to    believe    that

“$250,000” was a code word, id. at 3185. Although conceding that

                                   -68-
“anybody looking at those words [from the April 5 recorded phone

call] on the page would know that Cromitie, easily, could have

took [sic] that as an offer for $250,000,”        the prosecutor

continued, “[b]ut the evidence, other evidence that you saw,

supports what [Hussain] told you, as crazy as it may sound.”31 Id.

In its appellate brief, the Government recounts Hussain’s claim

that “$250,000” was a code word for the operation, see Br. for

United States at 89, and asserts that “the Government . . .

‘formed a good-faith belief that the [alleged lies] referr[ed]

only to . . . inconsistencies . . . that were aired at trial,’”

id. at 107 (quoting Morris, 447 F.3d at 744).32

    Although given some pause by the prosecutor’s jury argument

in support of the code word claim, we cannot say that the

prosecution knew the claim was false.   The prosecutor might have



    31
       The “evidence” the prosecutor then outlined was: (1) the
$250,000 was never mentioned again, (2) the fact that Cromitie
resumed contact with Hussain after the six-week absence and then
heard the $250,000 figure shows that Cromitie could not have
anticipated such an offer, and (3) Cromitie had finally found his
lieutenant. See Trial Tr. 3186. The first item casts at least
some doubt about a bona fide offer; the other two prove nothing.
    32
       In redirect examination of Hussain, the prosecutor asked
questions that could be interpreted to indicate skepticism about
the code word claim. The prosecutor asked, “How is that possibly
a code?” and had Hussain concede that “$250,000” was not on a
list of code words. Trial Tr. 2513-14.
                               -69-
subjectively believed that the code word claim was true, even

though in the District Court’s view, and in ours, there was not

a reasonable basis for such a belief.      We note that Hussain’s

testimony about the $250,000 was not the sort of assertion that

could be verified by investigation.33 Cf. Wallach, 935 F.2d at 456

(witness’s   denial   of     gambling   refuted   by   third-party

observations).   Most important, the District Court, as the trier

of fact for the due process claims, made no finding that the

prosecutor knew that Hussain’s code word testimony was false.

On the contrary, the Court stated, “The Government . . . ‘formed

a good-faith belief that the [alleged lies] referr[ed] only to

the already-known inconsistencies in [the witness’s] testimony

that were aired at trial.’” Cromitie II, 2011 WL 1842219, at *26

(quoting Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006))

(brackets in Cromitie II).

    (3) The Prosecution’s Imputed Knowledge


    33
       In discussing with counsel Hussain’s apparently false
testimony about matters other than the $250,000 offer, the
District Court warned the prosecution that it acted at “its
peril” if it failed to observe its obligations. Trial Tr. 2019.
With respect to Hussain’s false testimony about the $250,000,
there is no reason to believe the prosecution could have
determined from third parties whether the testimony was false,
and the examination of Hussain on this topic, both by the
prosecution and the defense, thoroughly probed his claim that the
offer was made and that “$250,000” was a code word.
                                -70-
    The    evidence    undermining   Hussain’s   testimony   about   the

$250,000 was not only clear enough to show its falsity; it was

so forceful that no reasonable person could fail to recognize its

falsity.   As Judge McMahon found, “[T]here can be absolutely no

question that [the $250,000] offer was made.” Cromitie I, 781 F.

Supp. 2d at 219.      Thus, even if the prosecution in good faith

subjectively believed that Hussain’s testimony about the $250,000

was true, the prosecution “should have known,” Josephberg, 562

F.3d at 494, that it was false.

    (4) Likelihood of Affecting the Jury

    The very force of the evidence that shows that no reasonable

person could believe Hussain’s testimony about the $250,000, is

sufficient not only to charge the prosecution with imputed

knowledge, but also to show that the jury had to recognize that

the testimony was false.       Furthermore, the jury heard Hussain

admit that he gave Cromitie the “impression” that he would “make

a lot of money.”      Trial Tr. 1869.   There is thus no “reasonable

likelihood that the false testimony could have affected the

judgment of the jury.” Agurs, 427 U.S. at 103.         Indeed, we see

no likelihood at all.

    The defendants’ claim of knowing use of perjured testimony,

though substantial, does not warrant reversal.

                                 -71-
IV. Other Claims

      The defendants’ remaining claims do not require extended

discussion.      They challenge (1) the admission of video evidence,

(2) the prosecutor’s alleged vouching for Hussain’s credibility,

(3) the denial of a mistrial because the jury saw two portions

of recorded statements that were not in evidence, and (4) the

imposition of mandatory minimum sentences.

      (A) Admission of Video Evidence

      The defendants argue that the District Court abused its

discretion by admitting a 20-second video of a demonstration

explosion set off by a bomb placed on the back seat of a car and

constructed with      the   type and amount of material that the

defendants thought was in the fake devices they were planning to

use   in   the   operation.   Br.   for    David   Williams   at   37.   The

Government introduced the video to establish that the fake bombs,

if real, would have qualified as “destructive devices” under 18

U.S.C. § 2332(c)(2)(A) and 18 U.S.C. § 921(a)(4).             The evidence

was plainly relevant and not unfairly prejudicial, see Fed. R.

Evid. 403, and its admission was well within the District Court’s

discretion.

      (B) Vouching for Witness’s Credibility

      The defendants argue that the prosecutor improperly vouched

                                    -72-
for   Hussain’s      credibility     by   pointing   out   in   his    closing

summation that Hussain had a reason to be truthful because he

knew that he faced possible deportation if he committed perjury.

Because no defendant objected at trial, we review this claim only

for plain error.

      Although a prosecutor should not vouch for a witness’s

truthfulness, see United States v. Carr, 424 F.3d 213, 227 (2d

Cir. 2005), it is not improper to point to evidence indicating

a witness’s awareness of a particular adverse consequence of

testifying falsely, beyond the risk of perjury applicable to all

witnesses. See, e.g., United States v. Arroyo-Angulo, 580 F.2d

1137,   1147   (2d    Cir.   1978)    (lying   risked   loss    of    sentence

reduction in cooperation agreement).           Hussain had testified that

he feared he would be deported if he was convicted of perjury,

and the prosecutor was entitled to remind the jury of that

testimony.

      (C) Jury’s Exposure to Extra-Record Evidence

      The defendants argue that their rights were violated because

the jury briefly had access to transcripts of two recorded phone

conversations that had not been admitted in evidence. The jurors

had binders that included transcripts of conversations that they

were instructed to use as aids when listening to recordings

                                      -73-
admitted into evidence.   The transcript of a phone call between

defendant   David   Williams   and   his   father   (“David   Williams

transcript”) was inadvertently included in one juror’s binder

although the recording of that call was not in evidence.          The

transcript of a phone call between defendant Onta Williams and

a female friend (“Onta Williams transcript”) was inadvertently

included in each juror’s binder although the recording of that

call was not in evidence.      David Williams was recorded telling

his father that his entrapment defense was “dead” because he had

agreed to participate in the operation the first time it was

proposed to him. See JA 4516.    Onta Williams was recorded saying

that he was offered $10,000 to participate in the operation. See

JA 4512-13.

    After the jury discovered and informed the District Court

that these transcripts were included in its binders, the District

Court questioned each of the jurors to determine the extent of

their exposure to the transcripts and whether they could continue

to deliberate without considering this extra-record information.

All of the jurors except the juror whose binder contained the

David Williams transcript statement agreed, and that juror was

excused.

    Based on the remaining jurors’ responses, Judge McMahon

                                 -74-
concluded that none of them had reached the page of the David

Williams transcript on which the “dead” remark appeared, the Onta

Williams transcript was actually favorable to the defense (as

contradicting       Hussain’s   testimony        that   he   had    offered    only

$5,000), and the jurors’ ability to disregard the episode and

decide the case fairly was entirely credible. The District Court

gave an emphatic curative instruction.

       After carefully reviewing all of the circumstances, the

District Court, correctly applying applicable standards, denied

the defendants’ motion for a mistrial.                  We see no basis for

disturbing that ruling.

       (D) Sentencing

       The defendants argue that their 25-year mandatory minimum

sentences     are   invalid     because     of    sentencing       entrapment    or

sentencing manipulation. Specifically, they point out that their

mandatory minimum sentences resulted from convictions on Counts

5 and 6, punishing conspiring and attempting, respectively, to

acquire and use anti-aircraft missiles (18 U.S.C. § 2332g), and

that the idea of planning the use of such missiles originated

with    the   Government.       Indeed,     although     the   District       Court

rejected the defendants’ sentencing argument, see United States

v. Cromitie, No. 09 Cr. 558(CM), 2011 WL 2693297, at *4 (S.D.N.Y.

                                     -75-
June 29, 2011) (“Cromitie III”),              the    Court found that the

Government created the fake Stinger missiles “for the sole

purpose”    of   subjecting     the   defendants     to    25-year     mandatory

minimum sentences, id. at *2.

       Sentencing entrapment, a concept we have said has not yet

been recognized in this Circuit, see United States v. Gomez, 103

F.3d 249, 256 (2d Cir. 1997), would, if applicable, preclude a

sentence where “outrageous official conduct” has “overcome[] the

[defendant’s] will,” id. (internal quotation marks omitted). The

District Court ruled there was no basis for such a finding in

this case, see Cromitie III, 2011 WL 2693297, at *1.                   We agree.

       Sentencing   manipulation,       which   we     have     also    not    yet

recognized, see United States v. Gagliardi, 506 F.3d 140, 148 (2d

Cir.    2007),   would,    if    applicable,        require     a    showing    of

“outrageous” misconduct, see Bala, 236 F.3d at 93.

       The Government urged the District Court to reject the claim

of sentencing manipulation by analogy to narcotics cases in which

undercover agents frequently probe what quantities of drugs a

suspect will sell, an inquiry that can expose the suspect to a

range of increasing sentences based on drug quantities.                        See

United States Sentencing Guidelines § 2D1.1(c).                     The District

Court    rejected   the   Government’s       analogy      to   narcotics      cases

                                      -76-
because, unlike the defendants in this case, the suspects in

those cases had previously been identified as participants in the

type of criminal conduct with which they were charged. See

Cromitie III, 2011 WL 2693297, at *3.            Whether or not the analogy

applies to all sentencings, we deem it applicable in this case

where the principal defendant expressed early on an inclination

to commit acts of terrorism and his co-defendants promptly and

enthusiastically joined the plot with full awareness that it

included launching anti-aircraft missiles.                  The Government did

nothing improper by testing to see just how far these defendants

would go in committing acts of terrorism.

     We note that the District Judge determined that, even if

the missiles had not been part of the plot, the terrorist

activities    directed     at    the    Riverdale     synagogues    would   have

authorized    a   life     sentence      under    the   advisory    Sentencing

Guidelines,    see   id.    at    *2,    and,    as   she   told   Cromitie   at

sentencing, she would have “no mind to sentence you to less than

25 years.” JA 2713.

    Ultimately, the District Court concluded that it lacked

authority to sentence below the statutory 25-year mandatory

minimum. See id. at *5.          Whether or not that is so, there was no

error in imposing mandatory minimum sentences in this case.

                                        -77-
                            Conclusion

    Judge   McMahon   skillfully   conducted   a   difficult   trial,

dealing meticulously in several carefully written opinions with

issues that arose in extraordinary circumstances.      The resulting

judgments of convictions and sentences of all four defendants are

affirmed.




                               -78-
 1   DENNIS JACOBS, Chief Judge, concurring in part and

 2   dissenting in part:

 3       I concur as to the affirmance of the convictions of

 4   David Williams, Onta Williams, and Laguerre Payen, and I

 5   concur in the majority’s rejection of any argument premised

 6   on outrageous government misconduct, and its rejection of

 7   other defense arguments.   I respectfully dissent in part

 8   because James Cromitie was entrapped as a matter of law.

 9

10                                   I

11       As to entrapment, it is common ground on this panel

12   that the government induced Cromitie to commit the terrorist

13   crimes charged, and that it became the government’s burden

14   to prove beyond a reasonable doubt that Cromitie was

15   “predisposed” to commit them.       See United States v. Bala,

16   236 F.3d 87, 94 (2d Cir. 2000) (“[If] a defendant presents

17   credible evidence of government inducement, then the

18   prosecutor must show predisposition beyond a reasonable

19   doubt.”).   The government had to do that by proving any of

20   three things: “(1) an existing course of criminal conduct

21   similar to the crime for which the defendant is charged, (2)

22   an already formed design on the part of the accused to

23   commit the crime for which he is charged, or (3) a
 1   willingness to commit the crime for which he is charged as

 2   evidenced by the accused’s ready response to the

 3   inducement.”     United States v. Brunshtein, 344 F.3d 91,

 4   101-02 (2d Cir. 2003) (internal quotation marks and

 5   alteration omitted).     Since Cromitie had no similar criminal

 6   background, and since the government informant enlisted him

 7   only after a dogged and year-long campaign of nagging,

 8   pursuit, and temptation (with money, a business, and a

 9   Mercedes-Benz), this panel is in agreement that the

10   government had to prove an “already formed design.”

11       In my view, there was no evidence of an “already formed

12   design.”     At the outset, Cromitie told of wanting to “do

13   something to America” and “die like a martyr,” but this big

14   talk does not amount to a design--to do what?--never mind

15   one that was “already formed.”       The design here was entirely

16   formed by the government, and fed to Cromitie.       He liked it,

17   but he didn’t form it.

18

19                                   II

20       The term “already formed design” is defined away by the

21   majority: it is “only a rather generalized idea or intent to

22   inflict harm on” the interests of the United States.       Maj.

23   Op. at 25.     That definition of the term is more its converse


                                     2
 1   because an idea or intent does not amount to a design, and

 2   one that is “generalized” is unformed; the “generalized

 3   idea” of an act is not a disposition to do it; and

 4   entrapment is the very process of mobilizing a generalized

 5   idea that otherwise would remain an idle thought.    Thus the

 6   majority opinion renders entrapment untenable as a defense.

 7   Unsurprisingly, the majority’s definition is incompatible

 8   with precedent.

 9       “Formed design” is one of the three ways that the

10   government may prove predisposition, as set out in United

11   States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933) (Hand,

12   J.): “an existing course of similar criminal conduct; the

13   accused’s already formed design to commit the crime or

14   similar crimes; [and] his willingness to do so, as evidenced

15   by ready complaisance.”   Id. at 1008.   The same short

16   catalog was repeated in somewhat different words in United

17   States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952) (Hand,

18   J.): “The proof of [predisposition] may be by evidence of

19   his past offences, of his preparation, even of his ready

20   compliance.”1   Id. (emphasis added) (internal quotation


         1
              As the majority points out, Sherman used the word
     “prepared” as well as the word “preparation”; the majority
     argues that (given the common root of the words) Judge Hand
     meant “prepared” in the same sense as he meant “preparation”
     a few lines later. The two words are used in different
     senses, to suit distinct contexts. The first, as the
                                   3
 1   marks omitted).   So an “already formed design” is one

 2   sufficiently advanced that (before government solicitation)

 3   the defendant had already “prepar[ed]” to do the crime.

 4   Entertaining a “generalized idea” of a crime is several

 5   critical steps removed from preparing to commit it.      A

 6   design that is “already formed” has taken shape, and assumed

 7   parameters even if particulars remain open.   A design

 8   already formed is not (as here) inchoate, undirected, and

 9   open to suggestion and revision in every respect.

10       The term “already formed design” takes meaning from its

11   company, appearing in a series of three related ways to show

12   predisposition: commission of the offense in the past, the

13   ready willingness to do it then and there, or a formed

14   design, which looks to the future.   Existence of a formed

15   design matters only if it cannot be shown that the defendant

16   had already done analogous acts or had given ready assent.

17   The three can operate as alternatives only if they are

18   understood to be of comparable predictive force.    There is



     majority explains, conveys “the sense of being ready to
     commit the offense once the opportunity is presented,” Maj.
     Op. 26-27, which bears on whether Cromitie was “ready and
     willing”; but proof of being “ready and willing” requires a
     showing (beyond a reasonable doubt) of similar prior acts,
     quick acceptance, or “preparation” in the sense of an
     “already formed design.” The majority opinion thus
     conflates predisposition (“ready and willing”) with a way of
     proving predisposition (an “already formed design”).
                                   4
 1   great predictive force in a showing of past criminal acts

 2   along the same lines.     Similarly, a ready acceptance

 3   bespeaks a complete absence of qualm or inhibition, and

 4   likewise shows that the defendant’s will and disposition did

 5   not run counter to the act and did not need to be overcome.

 6       The predictive force of a formed design is sufficient

 7   on its own only if a course of conduct is already so well

 8   advanced in the defendant’s mind that one can be sure

 9   (beyond a reasonable doubt) it was not planted by an agent

10   provocateur.   Perhaps this is why we have never before found

11   sufficient evidence to prove that the accused had an already

12   formed design without there also being sufficient evidence

13   of a relevant criminal history or of ready assent to the

14   government’s proposal.     Cf., e.g., United States v.

15   Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980) (“All of this

16   evidence [of the defendants’ prior criminal conduct] could

17   support a jury finding either that the [defendants] had been

18   engaged in a similar ‘course of criminal conduct,’ or had

19   already formed the design to sell cocaine and were merely

20   looking for a buyer.”).

21       It therefore is not enough to infer a formed design to

22   commit an act of terror from a sense of grievance or an

23   impulse to lash out.     These disquiets are common, and in

24   most people will never combust.

                                     5
 1                                  III

 2       With this in mind, there is scarce evidence of any

 3   “already formed design” on the part of Cromitie.     As the

 4   majority opinion explains, evidence of predisposition must

 5   be independent of the government’s inducement.     See Jacobson

 6   v. United States, 503 U.S. 540, 550 (1992).     Cromitie’s

 7   statements at his initial meeting with Hussain therefore

 8   would be probative only if they showed Cromitie’s thinking

 9   prior to inducement.     And I agree that Jacobson allows

10   consideration of certain acts or statements that follow

11   government inducement.     See United States v. Brand, 467 F.3d

12   179, 192 (2d Cir. 2006).     Thus statements that Cromitie made

13   long after the inducement process began might show

14   predisposition, but only if they refer back to Cromitie’s

15   state of mind prior to inducement or if they tend to show

16   that Cromitie came up with the criminal design on his own.

17   Cromitie’s statement that he had been thinking about

18   attacking America “since [he] was [seven]” is a backward-

19   looking statement, but it is well short of a formed design,

20   and shows only that any such ideation was permanently

21   postponed.2   Likewise, Cromitie’s statement that he was the

22   one who first approached Hussain the day they met also


         2
              When I was seven, I wanted to be a fireman.
                                     6
 1   refers back to Cromitie’s state of mind prior to the

 2   inducement.     But it proves nothing about any “design”

 3   Cromitie might have had; it might perhaps bear on whether

 4   there was inducement, except that it is common ground that

 5   inducement was offered.

 6       The majority opinion relies heavily and passim on post-

 7   inducement acts and statements that do not reflect the

 8   defendant’s state of mind before the initial inducement, and

 9   therefore do not bear on predisposition.     See Jacobson, 503

10   U.S. at 551-52.    Cromitie did what he was induced to do, and

11   seemed happy doing it, but that cannot suffice; otherwise

12   the induced act would always evidence the predisposition to

13   do it.    All of Cromitie’s statements listed in the

14   majority’s opinion, Maj. Op. 39-40, regarding specifics of

15   the attack--such as targets--were made in direct response to

16   Hussain’s badgering Cromitie to form a design or make a

17   plan.    For example, Cromitie’s statement about “hit[ting]

18   the bridge” was a direct response to Hussain’s asking

19   “[w]hat is the, what, I mean, in your mind, were your best

20   targets here?     In New York?”   And Cromitie’s statement about

21   “get[ting] a synagogue” occurred later in that same

22   conversation and context.     These statements, which occurred

23   months after the first meeting in June 2008, cannot be used

24   to prove predisposition under Jacobson.      Hussain’s

                                       7
 1   industrious labor to convince Cromitie to join a terrorist

 2   plot--including Hussain’s exploitation of Cromitie’s “love”

 3   of and respect for Hussain and Hussain’s offers of large

 4   sums of money to the impoverished Cromitie--colors these

 5   statements, along with many others cited by the majority3;

 6   they show the government’s successful inducement, not

 7   Cromitie’s predisposition.

 8       No reasonable jury weighing only the evidence of

 9   predisposition admissible under Jacobson could conclude that

10   Cromitie had an “already formed design” to commit an act of

11   terror.   Wanting to “die like a martyr” and “do something to

12   America” is not a formed design, and certainly not

13   “preparation,” Sherman, 200 F.2d at 882.   These are wishes,

14   not designs.   One amounts to no more than the boastful piety

15   of a foolish man; the other could be banter in any faculty

16   lounge.

17       It is clear that Cromitie in his unmolested state of

18   grievance would (for all the evidence shows, and as the

19   district court found) have continued to stew in his rage and



         3
              For instance, Cromitie’s statement regarding Allah
     giving him his “own will,” and “if I’m doing something, it’s
     because I wanted to do that for so long,” Maj. Op. 40-41,
     were made during a long conversation in February 2009,
     months after Hussain’s concerted inducement had begun.
     During that same conversation, Hussain pushed Cromitie to
     scout targets and recruit other members from the mosque.
                                   8
 1   ignorance indefinitely, and had no formed design about what

 2   to do.   The government agent supplied a design and gave it

 3   form, so that the agent rather than the defendant inspired

 4   the crime, provoked it, planned it, financed it, equipped

 5   it, and furnished the time and targets.   He had to, because

 6   Cromitie was comically incompetent, possibly the last

 7   candidate one would pick as the agent of a conspiracy.4

 8   There simply was no evidence of predisposition under our

 9   settled definition of that term.

10       I would therefore reverse Cromitie’s conviction as the

11   product of entrapment.   At the same time, I agree with the

12   majority that the other defendants were not entrapped, and I

13   therefore concur in the affirmance of their convictions.5


         4
               En route to the terror site, the government agent
     directed Cromitie to assemble the bombs; but he couldn’t
     figure it out, and had to be shown how to do it. At the
     site, the government agent directed him to hide the bombs in
     the trunk of the car; but he couldn’t get the trunk open, so
     he put them in the back seat. The government agent then
     directed him to arm the bombs, but as they drove away from
     the supposed car-bomb parked in front of the synagogue,
     Cromitie exclaimed “holy s***, I forgot to turn it on.”
          The majority opinion argues that competence is not a
     consideration in the entrapment defense. I agree, up to a
     point; but Cromitie’s bumbling compelled the exasperated
     government agent to treat him as a puppet. Certainly, it
     shows how little danger Cromitie posed to the community.
         5
              As the majority points out, the district court has
     conscientiously demonstrated with telling circumstantial
     evidence that each defendant (other that Cromitie) readily
     responded to Cromitie’s offer to join the plot. I would
     affirm based on the district court’s reasoning.
                                   9
