## Facts

- The FBI conducted a sting operation using a paid confidential informant who posed as a member of a foreign terrorist organization.
- The informant approached James Cromitie and, over time, discussions developed into a plan to bomb two synagogues in the Bronx and to attack military aircraft at Stewart Air National Guard Base in Newburgh, New York, using what defendants believed were Stinger missiles.
- Cromitie recruited David Williams, Onta Williams, and Laguerre Payen to participate in the plot.
- The FBI supplied inert explosives and inert missiles and recorded key interactions as the defendants planned and took steps toward carrying out the attacks.
- A federal grand jury charged the defendants with eight terrorism-related counts, including conspiracy and attempt to use weapons of mass destruction, conspiracy and attempt to acquire and use anti-aircraft missiles, and conspiracy and attempt to kill U.S. officers and employees.
- After a jury trial in the Southern District of New York, all four defendants were convicted on all counts and each received a 25-year prison sentence.

## Issues

1. Whether the defendants were entrapped as a matter of law because the government induced the offenses and the defendants lacked predisposition.
2. Whether the government’s conduct in designing and executing the sting operation was so extreme that it violated due process as “outrageous government conduct.”
3. Whether due process was violated because the prosecution knowingly used materially false testimony from the informant (or failed to correct it).
4. Whether any additional evidentiary or sentencing challenges required reversal or resentencing.

## Decision

- The Second Circuit affirmed the convictions and 25-year sentences for all defendants.
- The court unanimously rejected entrapment-as-a-matter-of-law claims by David Williams, Onta Williams, and Payen.
- The court rejected Cromitie’s entrapment-as-a-matter-of-law claim by a 2–1 vote; the dissent would have found Cromitie entrapped as a matter of law.
- The court unanimously rejected the due process claims based on outrageous government conduct and alleged knowing use of perjured testimony.
- The court rejected the remaining appellate challenges.

## Legal Principles

- Entrapment has two elements: (1) government inducement and (2) lack of predisposition to commit the charged crime.
- Entrapment as a matter of law is established only when no reasonable jury could find predisposition beyond a reasonable doubt.
- Predisposition is assessed at the time of the government’s first approach to the defendant; later conduct and statements may be relevant if they support an inference of earlier predisposition.
- Predisposition may be shown by evidence such as a ready response to the criminal opportunity, statements indicating willingness or intent, recruitment of others, and affirmative steps toward completing the offense.
- The “outrageous government conduct” doctrine imposes an exceptionally high bar; due process is violated only when government conduct is so extreme that it bars the government from obtaining a conviction through the courts.
- A due process claim based on false testimony requires a showing of materially false testimony that the prosecution knew or should have known was false, and materiality sufficient to undermine confidence in the verdict; corroborating recordings and other evidence can defeat materiality.

## Conclusion

The Second Circuit held that the jury could reasonably find the defendants predisposed to commit the charged terrorism offenses despite aggressive undercover tactics, and it affirmed the convictions because neither entrapment as a matter of law nor due process violations from government conduct or alleged false testimony were established.


United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013)