" United States v. Berkery, 889 F.2d 1281, 1283 (3d Cir. 1989). But see United States v. Pervez, 871 F.2d 310, 317 (3d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989) (holding evidence of inducement insufficient to warrant entrapment charge). In Fedroff, we stated that predisposition "may be defined as the defendant's inclination to engage in the crime for which he was charged, . . . measured before his initial exposure to government agents."
Gaito's Initiation of Contact With Sabol In United States v. Pervez, 871 F.2d 310 (3d Cir.), cert. denied, 492 U.S. 925, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989), the defendant was convicted on charges of conspiracy to defraud the Government, attempted exportation of beryllium in violation of export laws and submission of false statements to the department of Commerce. The defendant argued on appeal that he was entitled to an acquittal, as a matter of law, based on an entrapment defense.
Fed. R. Crim. P. 52(b) (permitting "[a] plain error that affects substantial rights [to] be considered" on appeal "even though it was not brought to the [trial] court's attention."); see also Henderson, 568 U.S. at 270; United States v. Pervez, 871 F.2d 310, 314 (3d Cir. 1989). Courts may provide remedies under Rule 52(b) only if there is (1) an "error[,]" that is (2) "plain" and (3) "affect[s] substantial rights."
However, while the new rule applies, Federal Rule of Criminal Procedure 52(b) limits our review to plain errors. Henderson , 568 U.S. at 270, 133 S.Ct. 1121 ; United States v. Pervez , 871 F.2d 310, 314 (3d Cir. 1989). Here, although we had rendered our decision in Johnson’s appeal before Alleyne was decided, the case remained on direct review because our mandate had not yet issued.
The government, of course, may, in its discretion, retry Retos on Count 4, inasmuch as our vacatur of Retos' structuring conviction did not result from a finding of insufficient evidence. United States v. Beros, 833 F.2d 455, 467 n. 13 (3d Cir. 1987); United States v. Pervez, 871 F.2d 310, 319 (3d Cir. 1989). We will affirm Retos' convictions on Counts 2, 3, and 6 through 11, but we will remand to the district court for resentencing.
Skerianz argues that the government failed to meet its burden of proving beyond a reasonable doubt that he was not entrapped because it did not expressly deny involvement before January 5. Our review of Skerianz's entrapment claim is plenary. United States v. Pervez, 871 F.2d 310, 314 (3d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). In making this argument, Skerianz skips over the requirement that a defendant must produce evidence from which entrapment could be inferred before the burden of persuading the fact-finder that there was no entrapment falls on the government.
108 S.Ct. at 886-88. See also United States v. Pervez, 871 F.2d 310, 316 (3d Cir. 1989) (plain error standard used to review "because the change in the law affects the defendant's substantial right to plead inconsistent defenses"). Third, the seriousness of the error in this case results from the admissions of all elements of the conspiracy which, by its nature, is so intertwined with the substantive offenses such that the admission of one count results in the admission of virtually all. Finally, we note that since the defense of entrapment is a judicially created defense, any judicial modification or alteration must be applied even-handedly or the very nature of the judiciary would be called to question.
Similarly, we will apply Mathews to this appeal. Our review of the effect of Mathews is also a question of law subject to plenary review. United States v. Pervez, 871 F.2d 310, 314 (3d Cir. 1989). IV.
Plain error or defect is demonstrated only if the claimed error affects a substantial right and had an unfair impact on jury deliberations. United States v. Pervez, 871 F.2d 310, 315 (3d Cir.), cert. denied, 492 U.S. 925 (1989) quoting United States v. Young, 470 U.S. 1 at 16-17 (1985). The standard is implemented to remedy potential miscarriages of justice, and is sparingly applied.
Plain error or defect is demonstrated only if the claimed error affects a substantial right and had an unfair impact on jury deliberations. United States v. Parvis, 871 F.2d 310, 315 (3d Cir.), cert. denied, 492 U.S. 925 (1989) ( quoting United States v. Young, 470 U.S. 1 at 16-17 (1985)). Plain error review is available to remedy potential miscarriages of justice, and is sparingly applied.