United States of America v. Jeremy Fish

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1197
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J EREMY F ISH ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-67—William C. Griesbach, Judge.
____________
A RGUED S EPTEMBER 15, 2004—D ECIDED N OVEMBER 3, 2004
____________
Before E VANS , W ILLIAMS , and S YKES , Circuit Judges.
SYKES, Circuit Judge. Jeremy Fish pled guilty to a charge
of assault with a dangerous weapon and was sentenced to
37 months’ imprisonment. In this appeal, he challenges pre-
trial rulings made by the district court that precluded his
presentation of a defense based on the theory of entrapment
by estoppel. Fish also appeals the district court’s denial of
his motion for a downward departure at sentencing. We find
no merit to either of Fish’s contentions and affirm the
judgment and sentence of the district court.

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2 No. 04-1197
I. Background
Fish is a Native American and a member of the
Menominee tribe. At the time of the incidents giving rise to
this case, he lived on the Menominee Indian Reservation in
northern Wisconsin. On March 20, 2003, Fish and his
brother were involved in a physical altercation on the
reservation that ended when Fish discharged a shotgun at
his brother, striking him just below the left knee and caus-
ing serious injury. On April 1, 2003, a grand jury returned
a one-count indictment charging Fish with assault with a
dangerous weapon pursuant to 18 U.S.C. § 133(a)(3).
Prior to trial Fish filed a motion to dismiss the indictment
based upon the affirmative defense known as entrapment
by estoppel. Such a defense is available when a government
official has actively misled a defendant into a reasonable
belief that his or her charged conduct is legal. United States
v. Neville, 82 F.3d 750, 761 (7th Cir. 1996). In support of his
motion, Fish focused not upon his own personal situation or
the crime he allegedly committed, but rather upon his
analysis of the historical relationship between the Menominee
Indian tribe and the United States government. Fish’s mo-
tion noted that in 1954, the government terminated its official
recognition of the tribe, only to restore official recognition
in 1973 with passage of the Menominee Restoration Act, 25
U.S.C. § 903-903f. Fish argued that the process of ter-
mination followed by restoration of recognition worked an
injury to the collective psyche of the Menominee tribe, the
net result of which was rampant crime and lawlessness on
the reservation. Compounding this problem, in Fish’s view,
was the failure of the Department of the Interior to estab-
lish a democratic form of government on the reservation fol-
lowing the restoration of tribal recognition. Thus, his motion
argued, Fish was born into a culture of pervasive violence
and disrespect for the rule of law that was created and
fostered by flawed governmental policy. In this roundabout
way, Fish argued that the government had “entrapped” him
into shooting his brother.

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No. 04-1197 3
At the pretrial conference held on September 11, 2003,
the district court denied Fish’s motion to dismiss, holding
that his entrapment by estoppel defense failed because he
had produced no evidence demonstrating a link between his
allegedly criminal conduct and any assurances or misrepre-
sentations made by governmental agents. The court went on
to hold that based upon the lack of any evidence tending to
support a defense of entrapment by estoppel, the court
would not permit such a defense to be presented to the jury
at trial.
On October 8, 2003, Fish pled guilty to the charge in the
indictment, while reserving his right to appeal the denial of
his motion to dismiss. Prior to sentencing, Fish filed a mo-
tion for a ten-level downward departure, citing the “totality
of the circumstances” pursuant to U.S.S.G. § 5K2.0. The
circumstances cited in support of the motion concerned the
hardships Fish had endured throughout his life: a history
of physical and psychological abuse suffered at the hands of
his older brother, abandonment by his mother, and the
violent and economically bleak living conditions on the reser-
vation. Fish also argued that despite this troubled upbringing,
he had emerged a peaceful, law-abiding person and that the
crime he committed was a sharp deviation from his normal
pattern of behavior.
At the sentencing hearing, after allowing the parties to
debate the merits of the downward departure motion, the
district court held that: “Downward departures are author-
ized, but for stated purposes. I was unable to find a totality
of the circumstances exception or basis for downward
departure . . . I’m satisfied that the sentencing guidelines
ought to be followed in this case, and the basis for a down-
ward departure is simply not here.” The court proceeded to
sentence Fish to the lowest term of imprisonment available
in his prescribed guideline range, 37 months, to be followed
by a three-year period of supervised release. The court also
ordered Fish to pay $72,717.66 in restitution to the victim.

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4 No. 04-1197
II. Discussion
A. Entrapment by Estoppel
Fish’s first contention on appeal is that the district court
erred in denying his motion to dismiss and/or precluding
him from introducing evidence at trial to support a defense
of entrapment by estoppel. As noted briefly above, the de-
fense is available to those defendants proving that a gov-
ernment official, acting with actual or apparent authority,
affirmatively assured or actively misled the defendant into
a reasonable belief that certain conduct was legal. Neville,
82 F.3d at 761. The defendant must actually rely upon the
official’s assurances in choosing his or her course of conduct,
and such reliance must be reasonable in light of “the
identity of the agent, the point of law represented, and the
substance of the misrepresentation.” Id. In short, the
defendant must have a reasonable belief that he is acting
“pursuant to official authorization” to commit the crime or
crimes with which he has been charged. Id. Given this rigor-
ous standard, we have characterized entrapment by estoppel
as a defense that is “rarely available.” Id.
As a prerequisite for presenting an entrapment defense to
the jury, the defendant must produce sufficient evidence
from which a rational jury could infer that he was en-
trapped into committing the crime charged. United States
v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). Where
the evidence proffered is insufficient as a matter of law to
support the defense, a district court does not err in making
a pretrial ruling precluding the presentation of the defense
at trial. Id. A district court’s ruling in this regard is re-
viewed de novo. Id. at 726.
Fish argues on appeal, as he did to the district court, that
his entrapment by estoppel defense is supported by the
pervasive environment of lawlessness and violence existing
on the reservation that was fostered by inconsistent govern-
ment policies concerning the recognition of the Menominee
tribe and the form of government existing there.

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No. 04-1197 5
We need not debate or discuss the merits of Fish’s his-
torical, sociological, and psychological analysis because his
argument misses the point entirely. In order for the defense
of entrapment by estoppel to arguably apply, Fish must iden-
tify a person or persons, cloaked with the actual or apparent
authority of a governmental entity, who actively assured
him that shooting his brother in the leg with a shotgun was
a legal activity. It will not suffice to allege (or even prove)
that “the government,” in the abstract, has pursued policies
that have unintentionally contributed to an inordinately high
crime rate in a given community. One can easily imagine
the disastrous results that would flow from an extension of
the entrapment defense to such an extreme. Contrary to
Fish’s position, the defense is specific to the state of mind
of the defendant and the crime with which he has been
charged. Fish has not identified a government official with
whom he had contact, he has not identified the substance of
a misrepresentation of the law made by such an official, nor
has he even suggested that he mistakenly believed his
conduct to have been lawful. As a result, the district court
did not err in concluding that the evidence was insufficient
as a matter of law to support the affirmative defense, and
the court properly denied Fish’s motion to dismiss and
precluded the presentation of the entrapment defense at
trial.
B. Downward Departure
Fish contends that the district court erred in denying his
motion for a downward departure, but the substance of his
argument is difficult to track. As we understand his posi-
tion, Fish is contending that by virtue of the district court’s
pretrial ruling barring presentation of his entrapment de-
fense, he was de facto prohibited from arguing at sentencing
that his “cultural heritage” was a factor to be considered as

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6 No. 04-1197
1 Although it is not immediately clear from the appellate briefs,
we assume that the “cultural heritage” Fish wished the district
court consider was the same history of government policy con-
cerning the Menominee tribe that he had advanced as the basis
for his entrapment defense.
2 For a discussion of this circuit’s view on the appropriateness
of considering “cultural heritage” in connection with sentencing
proceedings, see United States v. Guzman, 236 F.3d 830 (7th Cir.
2001). As indicated in Guzman, whether a defendant’s “cultural
heritage” is a permissible consideration under the Sentencing
Guidelines is an unsettled question. Id. at 833. Here, as in Guzman,
we need not decide this question in the context of the present
dispute. Id.
a basis for downward departure. 1 Fish, in reference to the
court’s ruling at the pretrial conference, states in his brief:
“from this point on, counsel for Appellant was disallowed to
submit to the court any information concerning Appellant’s
cultural heritage.” Fish chooses not to elaborate exactly how
the district court’s pretrial ruling effectively “disallowed” any
such argument in connection with sentencing proceedings.
In fact, the district court made no such ruling.
At the pretrial conference, the court held that Fish had
proffered insufficient evidence to permit the presentation of
his entrapment by estoppel defense at trial. This holding
was, in turn, based upon the court’s conclusion that Fish’s
evidence had failed, as a matter of law, to meet several nec-
essary elements of the defense. Whether Fish’s historical
and sociological analysis concerning the collective psyche of
the Menominee tribe met the criteria for establishing a
defense of entrapment by estoppel is unrelated to the ques-
tion of whether the district court would later consider this
factor at sentencing. 2 The district court’s pretrial ruling
simply cannot be construed as a preemptive limitation on
the arguments that Fish could raise, or that the court would
consider, in support of a motion for a downward departure

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No. 04-1197 7
at sentencing. Obviously, at the time of the pretrial con-
ference, Fish had not yet been convicted of any crime, and
any discussion of sentencing factors would have been inap-
propriate and premature. The district court most certainly
did not forbid Fish from attempting to raise the issue of
“cultural heritage” in support of a request for downward
departure.
An examination of Fish’s brief in support of his motion for
downward departure and the transcript of the sentencing
hearing reveals that Fish did not, in fact, make his “cultural
heritage” argument to the district court at sentencing. In
fact, the phrase “cultural heritage” appears nowhere in the
district court record and was utilized for the first time in
Fish’s appellate brief. Arguments that are not raised before
the sentencing court are waived for purposes of appeal.
United States v. Macias, 930 F.2d 567, 569-70 (7th Cir. 1991).
Fish may not argue on appeal that the district court failed
to consider sentencing factors that it was never asked to
consider.
The arguments that Fish actually did raise in support of
his motion for downward departure were the physical abuse
inflicted by his brother, abandonment by his mother, the
bleak living conditions on the reservation, and the behav-
ioral anomaly of Fish’s criminal conduct in light of his gen-
erally law-abiding and peaceful nature. In his motion for a
downward departure, Fish argued that these factors, viewed
together, comprised a “totality of the circumstances” that
should entitle him to a ten-level downward departure from
the prescribed sentencing range. The district court consid-
ered these arguments and declined to downwardly depart,
holding that it “was unable to find a totality of the circum-
stances exception or basis for downward departure . . . and
the basis for a downward departure is simply not here.”
A district court’s refusal to grant a downward departure
is unreviewable as long as the sentencing judge understood

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8 No. 04-1197
his authority to depart and exercised his discretion in refus-
ing to do so. United States v. Payton, 198 F.3d 980, 984 (7th
Cir. 1999). Where “the district court recognizes its authority
to depart under the guidelines but in an exercise of its dis-
cretion chooses not to do so, an appellate court lacks juris-
diction to review that decision.” United States v. Johnson,
289 F.3d 1034, 1043 (7th Cir. 2002). There is no indication in
this record that the district court was acting with a mistaken
understanding that it was unable to downwardly depart from
the guidelines or precluded from giving consideration to
Fish’s arguments. Rather, the court considered and ulti-
mately chose to reject Fish’s position that a downward
departure was appropriate in his case. As a result, we lack
jurisdiction to consider the merits of any claim regarding
the appropriateness of a downward departure, and we
affirm the district court’s sentence.
For the foregoing reasons, we A FFIRM the judgment of
conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-04

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