Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 1 of 50

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIM. NO. 4:17-CR-00139-4

:
v. : (JUDGE BRANN)
:
JUSTIN LOUGH : FILED VIA ECF

BRIEF OF THE UNITED STATES IN OPPOSITION TO

DEFENDANT LOUGH’S MOTION TO DISMISS FOR ALLEGED
OUTRAGEOUS GOVERNMENT CONDUCT

Respectfully submitted,

DAVID J. FREED
UNITED STATES ATTORNEY
MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE J. ROCTKASHEL
Assistant United States Attorney
PA ID 44922
Office of the United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701-6465
Telephone: (570) 326-1935
FAX: (570) 326-7916

DATE: March 9, 2018

 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 2 of 50

TABLE OF CONTENTS

PAGE(S)
TABLE OF CONTENTS………………………………………………………i

TABLE OF AUTHORITIES………………………………………………….ii

A. RELEVANT FACTUAL BACKGROUND……………………………1

1. The Aryan Strike Force and Its Members’ Commitment to

Violence and Criminal Activity…………………………………3

2. The Defendants’ History of Violence, Firearms & Drug

Trafficking to Achieve ASF-Combat 18 Goals………………..7

3. Infiltration of ASF by FBI to Neutralize Ongoing Threats

of Violence…………………………………………………………18

B. ARGUMENT……………………………………………………………..32

1. Applicable Legal Standard……………………………………...32

2. The FBI Properly Investigated Ongoing Criminal

Activities Of the ASF and Did Not Create New Crimes for
the Sake of Bringing Charges Against Lough and the Co-
Defendants..............................................................................35

3. Lough and his Co-Defendants Provided Substantial

Logistical Support for Multiple Interstate Transfers of
Contraband……………………………………………………….39

4. Lough and his Co-Defendants Were Predisposed to Commit

the Offenses……………………………………………………….40

C. CONCLUSION…………………………………………………………..46

CERTIFICATE OF SERVICE …………………………………………….. 47

i
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 3 of 50

TABLE OF AUTHORITIES
PAGE(S)

CASES

United States v. Hampton,

425 U.S. 484 (1976)……………………………………………….34,41

United States v. Jannotti,

673 F.2d 578 (3d Cir. 1982)……………………………………37,38,40

United States v. Lakhani,

480 F3d 171 (3d Cir. 2007)…………………32,33,37,38,40,41,42,43

United States v. Nolan-Cooper

155 F.3d 221 (3d Cir. 998)…………………………………33,34,35,40

United States v. Santana,

6 F.3d 1, 4 (1st Cir. 1993)…………………………………………….34

United States v. Twigg,

588 F.2d 373 (3d Cir. 1978)……………………… 34,35,39,41,42,44

ii
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 4 of 50

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIM. NO. 4:CR-16-00139-4

:
v. : (JUDGE BRANN)
:
JUSTIN LOUGH : FILED VIA ECF

BRIEF OF THE UNITED STATES IN OPPOSITION TO

DEFENDANT LOUGH’S MOTION TO DISMISS FOR ALLEGED
OUTRAGEOUS GOVERNMENT CONDUCT

The United States hereby opposes defendant Justin Lough’s

motion to dismiss for alleged outrageous government conduct. (ECF

126; 127) In support of its opposition, the United States submits these

grounds:

A. RELEVANT FACTUAL BACKGROUND

The indictment charges Lough and other members of the Aryan

Strike Force (ASF) and Combat 18 with conspiring and attempting to

transport multiple pounds of methamphetamine, 50 Colt AR-15

receivers, and four Glock sear full-automatic inserts on behalf of other

members of the ASF-Combat 18, who were actually FBI undercover

employees. Consistent with the ASF-Combat 18 mission, Lough and his

1
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 5 of 50

co-defendants engaged in this criminal conduct to generate funds for

the acquisition of firearms and ammunition. While a patched member

of the ASF, Lough participated in each of four separate efforts to

transport 16-pound shipments of methamphetamine from Pennsylvania

to Maryland on December 4, 2016, January 17, 2017, March 12, 2017,

and April 7, 2017. During the April 7, 2017 incident, he also assisted in

transporting 50 AR-15 receivers and Glock sear automatic inserts. In

addition, he conspired with his co-defendants to conduct money

laundering transactions through the purchase of Target gift cards with

cash proceeds of the drug distribution offenses.

Well before the undercover investigation and controlled drug and

firearms transactions resulting in the criminal violations charged in the

indictment, the FBI received information from a number of sources

about ongoing illegal activities involving illegal firearms possession,

drug distribution, and other offenses committed in Potter County and

elsewhere involving members of the Aryan Strike Force (ASF). Those

sources included the Pennsylvania State Police (PSP), confidential

human sources, and reports from other FBI divisions and other law

enforcement sources. The investigation revealed that even before the

2
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 6 of 50

controlled drug and firearms transactions Lough and his co-defendants

were established members of the ASF who had participated in prior

criminal activities involving methamphetamine, and other drugs,

firearms, weapons offenses, and aggravated assaults.

1. The Aryan Strike Force and Its Members’ Commitment to

Violence and Criminal Activities

a. The ASF Mission and Members

Prior to the offenses charged in the indictment, defendants Lough,

Joshua Steever, Henry Baird, Stephen Davis, Jacob Robards, and

Connor Dykes were “patched” members of the ASF. According to the

mission statement posted on its website, the ASF is a “white nationalist

organization” with the “goal to protect the honour of our women,

children, and the future of our race and nation.” The ASF advocates

violence as a necessary tool to achieve their political goals. It reportedly

has members worldwide, who utilize the social media website VK to

communicate with one another. Lough and the other defendants were

members of the Vinland Division of the ASF-Combat 18. Exhibit 1, 1-6

According to former ASF president, Ronald Pulcher, known as

“Dozer”, all recruits in ASF take a blood oath upon joining, a pledge of

loyalty requiring obedience to the group and even the shedding of blood

3
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 7 of 50

on its behalf. The members viewed the ASF as an actual strikeforce, or

group of “street soldiers” ready to undertake violent action in

preservation of the white race.

Social media postings, on VK and other sites, identified Pulcher,

the defendants, and other ASF members as also being members of the

Eastern Service Unit of Combat 18, another white nationalist group.

Combat 18 is a neo-Nazi organization associated with the White

Supremacist “Blood and Honour” Organization started in the United

Kingdom in the 1990s. Combat 18 refers to itself as “the official armed

wing of Blood and Honour” and has been connected to acts of terrorism

and violence including arson attacks throughout the 1990s. It has since

spread internationally with other groups and organizations using the

Combat 18 badge, or insignia. Ex. 1, 4. Combat 18 ascribed to the

concept of “leaderless resistance” similar to lone wolves, or small cell

structures employed by other terrorist organizations, and derived its

name from “A.H.”, the initials of Adolph Hitler, which are the first and

eighth letters of the alphabet. As reported by Pulcher, Combat 18 is the

more violent faction within the White Supremacy Movement, and ASF

was an elite division within Combat 18.

4
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 8 of 50

According to social media posts and other evidence developed by

the FBI, Joshua Steever was the founder of the ASF. Pulcher, a Potter

County resident served as president of the group, until his arrest by

PSP in October 2016 for growing marihuana and possessing illegal

firearms at his residence. In an August 19, 2016 VK post, Pulcher

discussed his promotion to president of ASF and Steever’s role in

founding the group. Henry Baird eventually succeeded Pulcher as

president, and Stephen Davis served as vice-president and Connor

Dykes as sergeant-at-arms at the time of their arrests in April 2017.

Members of Combat 18 asked Steever to set up “service units” composed

of ASF members, who would take on assignments on behalf of the white

race and were expected to receive weapons training. Lough, Dykes,

Robards, Davis, and Baird agreed to participate in the Combat 18

service unit with Steever. Ex. 1, 1; 5-6.

b. Lough’s Membership in the Aryan Strike Force

As reflected in recorded conversations on March 30, 2017, Lough

considered himself to be an active member of the ASF, who previously

engaged in drug distribution and other criminal activities with his

skinhead “brothers” in Arizona, a group known as the “Hammerskins,”

5
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 9 of 50

and continued those activities with his co-defendants and the ASF in

Pennsylvania and Maryland. Exhibit 7, 5-6; 11-12. His participation in

successive attempts to transport bulk amounts of methamphetamine

and consignments of unregistered firearms parts and to engage in

money laundering transactions with proceeds of those activities flowed

directly from his ongoing and active participation in the ASF-Combat

18, and the criminal activities of its members.

Despite this clear commitment to criminal activities on behalf of

the ASF-Combat 18, in post-arrest statements to FBI investigators on

April 13, 2017 Lough minimized his connection to the ASF. He claimed

that he did not consider himself ASF, even though he had a jacket with

an ASF patch on it and a tattoo of the patch on his person. Apparently

unaware that he had been recorded recounting how he “cooked” and

“slung” methamphetamine with skinhead “brothers”, Lough described

the ASF as a “bunch of retards”, and he denied making any money

through his association with ASF members, or “moving”

methamphetamine for anyone. In spite of expressing dim regard for his

“brothers”, Lough nevertheless refused to identify individuals from the

ASF with whom he associated, and professed not to understand why he

6
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 10 of 50

should have to provide the names of individuals who share the same

ideology as he does. Eventually, however, during the interview he

identified co-defendants Steever and Robards as members of the ASF.

In view of his continuing participation in criminal activities with

ASF members and attempts to conceal those members and activities

during the post-arrest interview, the skinhead tattoos on his hands

referred to by his father at the detention hearing and the swastika

tattoo on his scalp fully reflect Lough’s enduring ties to the ASF-

Combat 18. As Magistrate Judge Arbuckle aptly stated in the order

continuing detention, “The tattoos of the defendant show a commitment

to a lifestyle consistent with the strong evidence of repeated

involvement in crime in this case and inconsistent with his reputation

in the community as evidenced by the exhibits and testimony of his

father.” ECF 104, 2.

2. The Defendants’ History of Violence, Firearms & Drug

Trafficking to Achieve ASF-Combat 18 Goals

a. Bomb Making Discussions

Through the PSP and law enforcement sources, the FBI

determined that ASF members, including the defendants, regularly

traveled to Pulcher’s property in Potter County for meetings to discuss

7
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 11 of 50

ASF-Combat 18 activities. During these gatherings, the defendants

reportedly possessed and discharged firearms and discussed illegal

activities that included the making of an explosive device to detonate at

an event in Harrisburg. Cooperating witnesses reported that in the

Fall of 2016 ASF members discussed a plan to create a bomb concealed

inside the oxygen bottle of an ASF member who had a life-threatening

illness and was willing to blow himself up. The witnesses reported that

Pulcher, Steever and the ASF member discussed the bomb plot whereby

the ill ASF member would blow himself up by detonating one of his

oxygen tanks at a white supremacist rally in Harrisburg. The intended

target of the bombing were ANTIFA demonstrators expected to be

present at the rally.

The FBI debriefed a CHS concerning an ASF gathering on

September 3, 2016 at Pulcher’s residence. The CHS reported that the

ASF held the meeting in Ulysses, Pennsylvania with members of the

National Socialist Movement (NSM). Ex. 1, 2. Pulcher, Steever, Davis,

and ASF members from Buffalo, New York attended the meeting.

During the meeting, Pulcher invited the CHS to join them in weapons

training. The CHS observed that Pulcher and Steever, who are

8
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 12 of 50

convicted felons, and another ASF member convicted of felony offenses

were armed with firearms.

According to the CHS, in response to a question about shooting

firearms, Pulcher advised that we can shoot something today, and “If

you got anything to die, we can get shot today.” During the gathering,

Davis described how the ASF used violence to achieve its goals: “Our

part of it, you can use it, we’re the violent part of it, unfortunately, you

know, it gets done.” Pulcher, the ASF president at the time, also

described funds that the group maintains funds to handle its members’

problems resulting from illegal activities: “We got patches n’ shit, we got

shit we gotta make, we got shit few gotta take care of, plus we got our

funds, everybody pays dues, you know what I mean? We have a fund for

bail for guys that get caught doing shit to be able to take care of it, so if

you want to make a donation, I mean, we’ll definitely take it.”

According to witness reports, Pulcher was growing marihuana and

illegally possessed firearms at his residence, and although the ASF does

not favor drug use, it was acceptable for Pulcher to grow the marihuana

to generate funds, provided he did not use the drugs. Ironically,

following his arrest by the PSP in October 2016 for cultivating

9
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 13 of 50

marihuana, Pulcher himself, was the beneficiary of ASF funds. As

Steever reported in an October 31, 2016 VK post:

Some of you may know this. I will keep it short and sweet.
Our brother Dozer was locked up. They got his wife and
daughter also and took their phones. As of now all matters
with the Vinland Division will be handled by me and
Stephen Dan Davis. All dues will be sent to Stephen Dan
Davis. Message Stephen Dan Davis for the information to
send the dues or money to help Dozer. We will keep everyone
posted of his situation. 8318.

b. Acquisition and Transfer of Firearms by ASF

Members

As Pulcher stated in an August 16, 2016 VK post concerning the

role of the ASF,: “we are the elite…the first to get the call to shed blood

… when shit goes terribly wrong we are usually the first to fix it.” One

of ASF’s stated goals was to procure more firearms and weapons in

preparation for the race war. ASF members actively tried to obtain

firearms through all available sources, including the Internet or direct

sales, even though the majority of its membership could not legally

possess firearms. Witnesses observed defendant Stephen Davis provide

a shotgun to Pulcher during a meeting at Pulcher’s residence in Potter

County. According to witnesses, Davis, a convicted felon “runs guns”,

and Steever also discussed “running” firearms with other ASF

10
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 14 of 50

members. In fact, according to one witness, Davis admitted doing

prison time for selling guns in Virginia.

In addition, witnesses have observed Steever with a firearm at

Pulcher’s residence in Potter County on several occasions, and Pulcher

and Davis shooting, or “popping off guns” at Pulcher’s Potter County

home. Consistent with the ASF members’ demonstrated affinity for

firearms, Dykes, an ASF member later appointed sergeant-at-arms,

posted images of himself on VK in an ASF uniform holding various

weapons, including a tactical shotgun, a pistol, brass knuckles, and an

ASP baton. Notably, Dykes was later arrested in Maryland for

possessing brass knuckles.

In post-arrest statements in this case, Baird admitted purchasing

the Taurus revolver, recovered at his residence following his arrest in

this case, from an individual in Allentown, Pennsylvania. Steever also

admitted purchasing a shotgun from another individual, and the FBI

recovered a shotgun with a tactical grip from his residence following his

arrest in this case.

11
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 15 of 50

c. Assaults Planned and Committed by ASF Members

In VK messages exchanged on October 10, 2016, Pulcher and an

ASF member calling himself “Eichmann Halcrow” discussed what to do

about a female who has threatened ASF members. During the

discussion, Pulcher agreed that an ASF prospect should “hospitalize her

for his patch.” He also stated in agreeing that the prospect carry out his

violent assignment: “Let him do this for our honor,” and that Steever

will have to “sort this out.”

Consistent with this planned assault by an ASF prospect, Steever

and Baird, Pulcher’s successor as president, participated in an assault

at a bar involving several black bar patrons. According to local police

reports, obtained by the FBI after the incident, on December 4, 2016,

Steever and an ASF member were involved in a fight with racial

overtones at Spanky’s in Easton, Pennsylvania. According to a bouncer

at Spankys, Steever was in the bar and had walked past a group of

black males and called them “niggers.” The bouncer told them to let it

go, but Steever continued to act out and was removed by the bouncer

from the bar. However, Steever came back to the door and pulled a

knife out while the black males exited the bar. A fight ensued in the

12
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 16 of 50

parking lot in which Steever was bludgeoned with a rock. The police

noted that at the time of the incident Steever was wearing his ASF

bomber jacket.

d. Lough’s Prior Criminal Activities Involving Drug

Distribution and Firearms

Consensually monitored conversations obtained during the

undercover investigation directly connected Lough to the criminal

activities charged in the indictment and to similar prior criminal

activities in Arizona. One meeting on March 30, 2017, in particular,

demonstrated Lough’s ongoing commitment to both the ASF-Combat 18

and the criminal activities intended to fund and facilitate its mission.

On that date, Lough met near Harrisburg with his co-conspirators

Henry Baird, Joshua Steever, and an FBI undercover employee (UCE)

purporting to be an ASF affiliate and a wholesale broker of controlled

substances and unregistered firearms. During the meeting, Lough

expressed his ready availability to assist in transporting

methamphetamine: “[Y]ou call me, I’ll be there. . . . [I]t will be very

very rare if I had to turn something down. . . . [T]hat’s why I always

make sure people know, call me, cause I always need the money . . . I’m

always ready to go.” Exhibit 7, 9-10.

13
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 17 of 50

During the same meeting, Lough confirmed his bona fides as an

ASF “brother” who previously participated in methamphetamine

trafficking when he lived in Arizona. As they discussed future

operations over fajitas and beers, he told the UCE, “I’m no stranger to

this work, this is what me and my brothers did in Arizona all the time.

. . . [Y]ou’d be surprised at a lot of the work me and my brother did

when we were in Arizona.” Exhibit 7, 11. When later during the

encounter the UCE asked what he had done in Arizona, Lough

recounted additional criminal activities, including “cooking” and

“slinging” methamphetamine with ASF members: “ . . . steal cars . . .,

poison, and um counterfeit, . . . oh, and uh, cooking . . . yeah, that was a

big thing with a lot of us skinheads out there, we cook and we sling.”

Exhibit 7, 11-2. He acknowledged the opportunity to generate cash

through methamphetamine trafficking: “. . . I mean I could literally go

back, as soon as my brother gets out of prison, we can easily go right

back to it and start making money again. . . . I’m very much

accustomed to, you know, making money any way I can.” Exhibit 7, 12-

13. In fact, Lough advised the UCE that in addition to transporting

bulk amounts of methamphetamine he was available and capable of

14
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 18 of 50

selling drugs, or “product” in Waynesboro, Virginia where he and his

father lived: “I don’t know if you ever have any product, you need uh,

slung, I can definitely get rid of it where I’m at.” Exhibit 7, 12-13.

During the meeting on March 30, 2017, Lough also expressed his

interest in obtaining multiple handguns. He told the wholesale broker

that, rather than a particular kind of gun, he was looking for “more like

quantity” . . . ‘uhh, small handguns.” Exhibit 7, 13. When the UCE

asked, “just anything ? ”, Lough responded “pretty much, if you could

snag a revolver at least one.” Exhibit 7, 13. And, when the UCE asked

what he meant by “quantity,” Lough said, “just as many as you can get

them . . . as many as you can get for what I paid in.” Exhibit 7, 13.

The UCE also clarified whether the guns that Lough was

interested in were stolen or traceable. Lough asked, “what do you mean

clean? They’re not hot.” Exhibit 7, 13. The UCE answered, “no they’re

not coming back to you, they’re not coming back to anybody.” Exhibit 7,

13. Lough advised that he had assumed all the guns were “hot”, or

stolen, and noted that he was “used to . . . dirty guns” and in Arizona

“you can have dirty guns.” Exhibit 7, 13. Lough, Baird, and the UCE

also discussed types of handguns, and Lough expressed an interest in a

15
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 19 of 50

.45 pistol and “something small and compact” like a .380 pistol. Exhibit

7, 14.

e. Prior Arrests and Convictions

Lough and the co-defendants have significant records of prior

criminal activity. Lough has a history of abusing drugs and alcohol. In

his post arrest-statement to the FBI, Lough acknowledged that he has

used a lot of drugs in the past, including methamphetamine. He told

investigators that at the time of the interview he was currently using

drugs and that he “liked to party now and then.” At a bail hearing in

this case, his father recounted bouts of heavy drinking following the

death of Lough’s mother, episodes compelling his father to make him

leave their residence in Waynesboro, Virginia. Bail Hearing, 29-32; 36-

37. At the age of 20, in 2011, Lough was found guilty of a misdemeanor

driving while intoxicated offense, and he received a 60-day suspended

sentence. Pretrial Services Report (PTSR), 2. At age 24, in 2014, he

received a 60-day suspended sentence and served four days in jail on a

petit larceny charge for stealing a case of beer in Waynesboro after just

returning from Arizona. Exhibit 3, 2. PTSR, 3. Bail Hearing, 30-32.

16
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 20 of 50

While his criminal history is not exceptionally serious, it has some

troubling features reflecting negatively on his ability to comply with

conditions of supervision when viewed against his abuse of alcohol and

drugs. He was found guilty of contempt in Waynesboro in 2011 and was

fined $100. PTSR, 2. Moreover, his sentence of probation and the

suspended sentence on the petit larceny conviction were revoked. PTSR

3. As stated above, Lough recounted for FBI undercover employees

(UCE) his prior activities in Arizona “cooking” and “slinging”

methamphetamine and his ability and interest in “slinging” drugs in his

hometown of Waynesboro, Virginia.

Lough’s co-defendants also have had significant prior experience

with the criminal justice system. Steever has been convicted of

possession of weapons and terroristic threats. Henry Baird has three

convictions for assault with intent to cause injury, including one case

where he beat the black male victim with a baseball bat. He also has

two convictions for unauthorized use of a vehicle and convictions for

criminal trespass and unlawful possession of marihuana. Robards has

been convicted three times for possession of heroin and also for illegal

possession of a firearm by a convicted felon. Stephen Davis has been

17
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 21 of 50

convicted for receiving stolen property, forgery, and possession of

firearms by a convicted felon. And as recounted above, Dykes has been

charged with DUI and illegal possession of brass knuckles. Ronald

Purcher is presently serving a state prison sentence for cultivation of

marihuana, and he has a prior felony conviction for aggravated assault

involving firearms, simple assault, and retail theft.

3. Infiltration of ASF by FBI to Neutralize Ongoing Threats of

Violence

In response to CHS and witness reports that the ASF was actively

engaged in discussions of bomb-making and drug and firearms

trafficking, the FBI used several UCE’s, to identify members of the

ASF-Combat 18 chapter organized by Pulcher and Steever and its

ongoing criminal activities. The UCE’s posed as members of Combat 18

and affiliates of the ASF who brokered wholesale firearms and drug

transactions. During the undercover investigation, the FBI staged a

series of scenarios involving the controlled transfer of purported crystal

methamphetamine and AR-15 receiver and machine gun parts.

Through various meetings and cell phone exchanges, the undercover

operatives advised the defendants of the opportunity to make money to

18
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 22 of 50

buy guns by serving as security or “muscle” during the transportation of

drugs and firearms parts.

As reflected in recorded conversations, Lough and his confederates

eagerly participated in the controlled drug and firearms transfers, fully

knowing that they were engaged in criminal activities. Lough, like

Steever who notified and mobilized the co-defendants for each transfer,

traveled from Virginia to Pennsylvania to participate in all four

controlled transactions, and even used his own vehicle to assist in

transporting the purported contraband across state lines.

a. December 4, 2016 Controlled Transaction

On November 19, 2016, Lough, Steever, Dykes, an ASF member,

and an ASF affiliate, met with a UCE at a Cracker Barrel restaurant in

Staunton, Virginia near Lough’s residence following a series of phone

calls and texts setting up the meeting. In a text exchange the day

before, on November 18, 2016, Lough confirmed the meeting time and

location. Exhibit 8, 16-17. The purpose of the meeting was to discuss a

job available for the ASF service unit involving the transportation of

guns and crystal methamphetamine. The UCE advised the ASF

members that they would be acting as “muscle” with an additional

19
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 23 of 50

vehicle to provide security for the transportation of some

methamphetamine. The UCE emphasized that it was not an issue if

the defendants did not want to assist in the job, and, because of the risk

of jail time, they needed to be sure that they wanted to be involved. The

UCE advised Steever that he should check with the members of the

service unit and advise whether they were interested. Exhibit 2, 3.

During the meeting, Lough expressed concern about whether he

could be provided with a “piece,” or firearm to carry during the job. The

UCE advised him that a “piece” was not needed, and it would be bad

enough if the police stopped the defendants while transporting the

material, and a gun would only increase the amount of jail time they

faced. Exhibit 2, 1-2. Lough said that he was able to assist the UCE in

the transport of the drugs, and he had a small Ford SUV and could act

as the driver. Exhibit 2, 2. The UCE advised the defendants that they

would each receive $1,000 for participating in the job, and $500 of the

payment could be contributed toward planned purchases of firearms.

Exhibit 2, 2-3.

In a text exchange with Steever on November 19, 2016, following

the meeting, Lough expressed enthusiasm for Dyke’s participation in

20
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 24 of 50

the service unit’s activities: “I like that Connor [Dykes] kid. I think he

will make a good boot. He’s a fucking trooper for sure.” Exhibit 8, 17.

The UCE confirmed with Steever by cell phone that the

defendants and other ASF members were interested in the job. Exhibit

3, 1-2. On December 4, 2016, Steever, Lough, Dykes, and an ASF

member drove in Lough’s vehicle to meet the UCE at an exit off I-84

near Lord’s Valley, Pennsylvania. Steever joined the UCE in the UCE’s

vehicle and Lough drove Dykes and the ASF member and ASF affiliate

to a shopping mall near Dickson City where they met a second UCE

posing as the recipient of methamphetamine. The UCE’s exchanged a

package of U.S. Currency, and the UCE who had driven to the mall

with Steever, then asked Steever to carry over a duffel bag containing

approximately 20 pounds of methamphetamine. Steever handed the

duffel bag to the second UCE. Exhibit 3, 1-2.

Steever and the UCE then left the location and parked. The UCE

provided Steever with $4,000 of the $10,000 received for the duffel bag

of methamphetamine. Steever and the UCE then arranged to meet

Lough, Dykes and the ASF member and ASF affiliate in a Walmart

parking lot, where Steever gave $1,000 each to Dykes, Lough and the

21
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 25 of 50

other ASF member. The UCE then suggested that the defendants and

the ASF member use a portion of their payments to purchase pre-paid

VISA cards to make a deposit with a gun supplier for a future gun

purchase through the UCE. After some discussion with Steever, Lough,

Dykes and the ASF member decided to keep their $1,000 shares.

Exhibit 3, 2-3.

After this transaction, Conner Dykes provided a wish list to the

UCE of firearms that he wanted to purchase for the ASF-Combat 18,

including Beretta and Glock handguns and an Uzi firearm.

b. The January 17, 2017 Controlled Transaction

On January 17, 2017, Steever, Lough, Dykes, and Jacob Robards

traveled in Lough’s vehicle to the outlet stores in Tannersville,

Pennsylvania where they met with a UCE and an ASF affiliate.

Exhibit 4, 1-2. Steever traveled with the UCE to a meeting location,

and Lough and the other defendants followed in Lough’s vehicle.

Steever delivered a bag containing methamphetamine to a second UCE,

who then provided the other UCE with a bag of cash. Exhibit 4.

Steever, the UCE he had driven with, and the ASF affiliate traveled to

an arranged location where they met with Lough, Robards, and Dykes.

22
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 26 of 50

The UCE provided Steever with $4,000 in cash, and Steever provided

$1,000 each to Lough, Robards, and Dykes. The UCE discussed using a

portion of the cash payments to put money down on the purchase of

firearms through the UCE. Lough, Dykes, and Robards agreed, and

they each purchased a $400 gift card at Target and provided the cards

to the UCE as a payment toward future firearms purchases. Exhibit 3,

4-5.

Following the methamphetamine transfer, on February 11, 2017,

in a text exchange with Steever, Lough asked Steever to ask one of the

UCE’s when “we are going again,” referring to future activities of the

ASF-Combat 18 service unit. Exhibit 8, 17.

On February 15, 2017, two UCE’s met at Steever’s residence in

New Jersey with Steever, Dykes, Robards, and an ASF affiliate to

discuss additional “work” to be performed by the ASF-Combat 18

service unit. Exhibit 5, 2-3. The UCE’s initially met with Steever only

to discuss the availability of the service unit for additional jobs. Steever

advised that he and the defendants would be available. When asked by

the UCE’s what kind of work he and the defendants would feel

comfortable doing, Steever responded “anything.” One of the UCE’s

23
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 27 of 50

mentioned the danger of transporting “crystal” methamphetamine.

Exhibit 5, 2-3. When Steever and the UCE’s rejoined the other

defendants, the UCE’s again advised the group concerning the risks

associated with transporting “meth.” Steever, Lough, Dykes and

Robards acknowledged the potential consequences of transporting meth

and ways to avoid detection by the police. Exhibit 5, 3.

During the meeting, Robards also remarked how he had been a

skinhead for 26 years and will be a skinhead until the day he dies. He

also discussed the January 17, 2017 transfer of methamphetamine.

Robards acknowledged what will happen if they get stopped with

methamphetamine, stating, “we’re fucked.” Exhibit 5, 1. He also

expressed his role in the last transfer of drugs: “I sat there solid, I had

my eyes on point . . . . I understood exactly what was going on, you

have to be aware.” Exhibit 5, 1.

c. The March 12, 2017 Transaction

On March 6, 2017, Steever received a text from one of the UCE’s

about needing the assistance of Steever and the service unit members

in the coming weeks. Steever confirmed that he and the defendants

would be available, and the UCE advised him that one of the UCE’s

24
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 28 of 50

would provide additional details later in the week. In a text exchange

with Steever on March 8, 2017, Lough discussed the availability of ASF

members and stated, “Connor [Dykes] is 100% sure he’s not going. So

I’ll just head straight there after work. See if we can raise the wages

since we will be down a worker.” Exhibit 8, 17. In another text

exchange on March 10, 2017, Lough confirmed that the service unit

would be working on Sunday morning, March 12, 2017, and he stated,

“Also I got a boot down to go to replace Connor.” Steever replied,

“Awesome brother.” Exhibit 8, 17.

On March 12, 2017, Lough, Steever, and Henry Baird traveled in

Lough’s vehicle to a meeting location in the Harrisburg area. Steever

then entered a vehicle driven by a UCE, and another UCE entered

Lough’s vehicle. They then traveled to a shopping mall near

Hagerstown, Maryland, where they met another UCE. Steever

provided a suitcase containing purported methamphetamine to the

UCE who was waiting there. The UCE told Steever that he made a

mistake in substituting service unit members without getting approval

from the UCE. The UCE then provided Steever with $8,000 in cash.

Exhibit 6, 1-2.

25
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 29 of 50

Steever provided the cash to the UCE with whom he had driven

from Harrisburg, and the UCE then gave Steever $3,000. Steever gave

a $1,000 each to Lough and Baird. The UCE then drove them to a

Target store where Steever and Lough each purchased a $400 gift card

and Baird bought a $200 card, which they provided to the UCE as

payment toward the purchase of firearms. Exhibit 6, 3-4.

d. March 30, 2017 Meeting in Harrisburg

On March 19, 2017, an FBI UCE contacted Steever, who was with

Henry Baird at the time. The UCE explained that the UCE was going

to be in Pennsylvania and wanted to meet with Steever and the

members of the service unit, because there was additional work for the

group. Steever advised that Baird lived in the local area and Robards

would participate when no one else was available due to health issues.

He also mentioned another individual who lived near Canada, but it

was difficult for that person to get to Pennsylvania. Exhibit 7, 1. The

UCE said that it was up to Steever to select the individuals he was

going to work with, and the UCE wanted to meet with the members of

the service unit. The UCE advised that another reason for meeting was

26
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 30 of 50

to make sure that the group was comfortable with the kind of work that

the service unit might be asked to perform. Exhibit 7, 1.

On March 24, 2017, Steever texted Lough about a visit by one of

the UCE’s and the need to get ready for another service unit operation.

Lough advised that he needed to see what was going on with his

employment that weekend, and Steever responded, “It’s very important.

. . . You definitely need to be here now to do security.” Exhibit 8, 17-18.

In a text exchange on March 28, 2017 concerning the meeting of the

service unit, Steever advised Lough, “I need you here Thursday [March

30, 2017] it’s about work.” Exhibit 8, 18. In text exchanges with

Steever on March 29 and 30, 2017, Lough confirmed that prior to the

meeting of the service unit he was heading to Steever’s residence in

Phillipsburg, New Jersey, and not Henry Baird’s residence. Exhibit 8,

18.

On March 30, 2017, Lough drove Steever and Baird to a meeting

at the El Rodeo restaurant in Harrisburg where they met with two

UCE’s. Exhibit 7, 4-5. The day before, Steever confirmed with one of

the UCE’s by phone that Lough and Baird would be attending the

meeting. Exhibit 7, 2. Steever acknowledged again that the reason for

27
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 31 of 50

the meeting was to make sure the members of the service unit

understood and were comfortable with the planned activities. During

the meeting, the UCE’s discussed the fact that the service unit had been

assisting in the transportation of multiple pounds of

methamphetamine. Lough, Baird, and Steever stated that they

understood and had no concerns or issues with continuing those illegal

activities. Exhibit 7, 4. The UCE’s repeated that the activities had

criminal consequences and that no one needed to participate if he felt

uncomfortable. Exhibit 7, 5. Henry Baird advised that he was not

afraid to get his hands dirty, and Lough said it would be extremely rare

if he had to turn something down. Exhibit 7, 7; 9-10. Lough stated

that he engaged in activities in Arizona that were more significant

compared to anything the UCE would likely ask him to do. Exhibit 7,

11-12.

Baird and Lough discussed the kinds of guns that they wanted to

obtain. Baird said he had a Taurus revolver and wanted to upgrade to

a Glock pistol. Exhibit 7, 5; 9-10. As described above, Lough discussed

his interest in obtaining an AK-47 rifle and a .380 pistol, and he

described the kinds of criminal activities that he committed while living

28
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 32 of 50

in Arizona. Exhibit 7, 5-7; 13-14. As described above, Lough told the

UCE that he had stolen cars and cooked and distributed

methamphetamine, and he even expressed a willingness and ability to

sell methamphetamine in his hometown in Virginia. Exhibit 7, 12-13.

e. The April 7, 2017 Controlled Transaction

On April 4, 2017, Steever text messaged one of the FBI UCE’s and

asked, “Are we still working this weekend?” The UCE called Steever

and advised that the UCE would be in touch with Steever to let him

know. Exhibit 8, 1. On April 5, 2017, Steever and the UCE spoke by

phone to confirm the activities of the service unit. Exhibit 8, 2-3.

Steever also discussed a pump action shotgun that he recently

purchased from a friend of Henry Baird who had a vehicle and was

willing to help with “jobs”, referring to the service unit activities.

Exhibit 8, 2-3. According to Steever, Baird had been in prison with the

individual. Steever also texted a photograph of the shotgun with a

tactical pistol grip to the UCE. Exhibit 8, 2-3.

In an April 6, 2017 text exchange with Lough, Steever advised

him: “Come to my house after work. We work tomorrow morning.” In a

reply text message, Lough discussed arrangements to get gas money

29
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 33 of 50

from Robards for the trip, because he would not be able to pick up his

paycheck. Exhibit 8, 18.

On April 7, 2017 Lough, Baird, and Steever traveled in Lough’s

vehicle to a Dunkin Donuts in Harrisburg, where they met a UCE. The

UCE and Steever put a cardboard box and a duffel bag in Lough’s

vehicle. The UCE confirmed that the box contained four sear clips and

50 AR-15 lower receivers. Exhibit 8, 5-6. Lough, Baird, Steever, and

the UCE traveled to Hagerstown, Maryland where they met with

another UCE in the parking lot of a shopping center. Exhibit 8, 5-6.

Steever rode in the UCE’s rental vehicle to Maryland. During the

trip, Steever told the UCE that Baird had been in an altercation with

two black males the day before in which he had used brass knuckles.

Exhibit 8, 12-13. According to Steever, Baird had also attempted to

shoot a white male who had been hanging around the group, held the

gun to the victim’s head, and discharged the gun when the victim

pushed Baird’s hand away. Exhibit 8, 12-13. As they neared the

delivery location, the UCE switched to Lough’s vehicle and spoke to

Baird, who confirmed the shooting incident described by Steever. Baird

30
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 34 of 50

admitted that he tried to shoot the victim, but the round went past the

victim’s head and through the floor. Exhibit 8, 12-13.

After arriving in Hagerstown, Lough and Steever transferred the

firearms parts and the methamphetamine to the UCE vehicle. The

UCE provided $1,200 apiece to Lough, Baird, and Steever, and

explained that they were receiving more money because they also

helped transport guns and firearms parts in addition to

methamphetamine. Steever asked if they were going to get gift cards,

and the UCE said yes. Exhibit 8, 6. However, Steever advised that

Baird needed the money for restitution in a pending case and could not

get a gift card. Steever and Lough each bought $200 gift cards at a

Target store and provided them to the UCE. Exhibit 8, 6.

Six days later, On April 13, 2017, the FBI arrested Lough,

Steever, Robards, and Baird on criminal complaints and executed

search warrants at their residences, where they recovered firearms

from Baird and Steever. On May 5, 2017, the FBI arrested Stephen

Davis and Dykes following the return of the indictment on April 27,

2017.

31
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 35 of 50

B. ARGUMENT

Lough invokes the extraordinary defense of outrageous

government conduct and claims that law enforcement created new

crimes simply for the sake of bringing charges against him and

persuaded him to participate in the wrongdoing. However, the evidence

shows that FBI investigators successfully infiltrated the ASF-Combat

18 chapter in which Lough and his co-defendants were active members

and simply provided them with the opportunity to generate funds for

ASF operations by providing security and logistical support during the

transport of crystal methamphetamine and gun parts. Moreover, Lough

and his conspirators eagerly joined the criminal conspiracy, a venture

that was fully consistent with his admitted past involvement in a

skinhead group and methamphetamine trafficking in Arizona,

possession of firearms, and demonstrated commitment to the violent

and racist activities of the ASF-Combat 18,

1. Applicable Legal Standard

In United States v. Lakhani, the Third Circuit distinguished the

due process defense of outrageous government conduct from

entrapment, noting that unlike entrapment, which focuses on the

32
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 36 of 50

defendant’s predisposition to commit the crime, “the defense of due

process focuses exclusively on the conduct of the Government. If that

conduct is “so outrageous” as to be “shocking to the universal sense of

justice,” then the Due Process Clause can function as an “absolut[e] bar

[on] the [G]overnment from invoking judicial processes to obtain a

conviction.” 480 F.3d 171, 177-178 (3d Cir. 2007) (quoting United States

v. Russell, 411 U.S. 423, 431-32 (1973). “Although the requirement of

outrageousness has been stated in several ways by various courts, the

thrust of each of these formulations is that the challenged conduct must

be shocking, outrageous, and clearly intolerable ... . The cases make it

clear that this is an extraordinary defense reserved for only for the most

egregious circumstances.” United States v. Nolan-Cooper, 155 F.3d

221, 230-31 (3d Cir. 1998) (alteration in original) (quoting United States

v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992).

In fact, decisions have often questioned whether any due process

defense of outrageous government conduct exists at all, independent of

the entrapment defense. See Nolan-Cooper, 155 F.3d 221, 229-31 (3d

Cir. 1998) (based on the Supreme Court’s seeming disavowal of earlier

dicta on which due process theory rests and refusal of many circuits to

33
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 37 of 50

recognize the doctrine, “it appears that the viability of the doctrine is

hanging by a thread”); United States v. Santana, 6 F.3d 1, 4 (1st

Cir.1993) (declaring the outrageous government misconduct doctrine

“moribund” in light of the fact that, in practice, “courts have rejected its

application with almost monotonous regularity”). In the words of the

First Circuit, “The banner of outrageous misconduct is often raised but

seldom saluted.” Santana, 6 F.3d at 4.

“While continuing to recognize, in theory, the outrageousness

defense,” the Third Circuit has “nonetheless observed that because of

the extraordinary nature of the doctrine, the judiciary has been

‘extremely hesitant’ to uphold claims that law enforcement conduct

violates the Due Process clause.” Nolan Cooper, at 230 (quoting United

States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996)). Indeed, since the

Supreme Court’s plurality decision in United States v. Hampton, 425

U.S. 484 (1976), narrowly maintaining the viability of the

outrageousness defense, the only opinion upholding the application of

the defense is the Third Circuit’s opinion for a divided panel in United

States v. Twigg, 588 F.2d 373 (3d Cir. 1978). While Lough depends

heavily on Twigg in asserting the outrageousness defense here, the

34
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 38 of 50

facts in that case are markedly different from the FBI investigation in

this one.

2. The FBI Properly Investigated Ongoing Criminal Activities

of the ASF and Did Not Create New Crimes for the Sake of
Bringing Charges Against Lough and the Co-Defendants.

In United States v. Twigg, the Third Circuit found that the

subjects of the DEA investigation there were not involved in any

ongoing methamphetamine laboratory, or otherwise engaged in any

illicit drug activity independent of the drug production facility set up by

an informant with supplies and materials provided by government

agents. 588 F.2d at 381. Unlike Lough and his co-conspirators, the

defendants Twigg and Neville were not members of an organized group

committed to violent extremism, but instead, as described by the Third

Circuit, were “lawfully and peacefully minding” their “own affairs.” Id.

at 381.

In this case, FBI investigators did not create new crimes simply

for the sake of bringing charges against a suspect that the government

itself has persuaded into participating in wrongdoing. See Nolan-

Cooper, 155 F.2d at 23; Twigg, at 379. Instead, the FBI independently

developed information concerning the suspected criminal activities of

35
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 39 of 50

the ASF-Combat 18 in Potter County through a number of investigative

sources, including the PSP, a CHS who attended meetings of the ASF,

and social media postings. As early as September 2016, the FBI

developed additional information that ASF and Combat 18 members

were meeting in Potter County to conduct weapons training, discuss

bomb-making, and engage in illegal firearms possession and trafficking,

and the distribution and cultivation of marihuana.

The FBI initially identified a number of ASF members, including

Steever, Stephen Davis, Ronald Pulcher, and ASF members from New

Jersey, Virginia, and New York who attended the ASF meetings in

Potter County. Through further review of social media posts, CHS

debriefing, and undercover investigation, the FBI identified Lough,

Baird, Robards, and Dykes who were active members of the ASF and

Combat 18, a white supremacist, neo-Nazi group whose members were

committed to using weapons and violence to promote the white race.

Through the ongoing investigation, the FBI learned that Steever and

Pulcher formed an ASF-Combat 18 service unit to obtain firearms and

other weapons to carry out their violent activities, and recruited other

36
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 40 of 50

active ASF members, including Lough, Baird, Robards, Dykes, and

Davis to participate in the service group activities.

The defense of outrageous government conduct applies only to the

most intolerable government conduct, and not to each time the

government acts deceptively or participates in a crime that it is

investigating. Lakhani, 480 F.3d at180. Thus the fact that the

government “is on all sides of a transaction – both buyer and seller –

does not a due process violation make.” Lakhani, 480 F.3d at 182;

United States v. Jannotti, 673 F.2d 578, 608 (3d Cir. 1982).

Investigations of crimes that are “ ‘difficult to uncover’ because ‘both

parties to the transaction have an interest in concealment’ ” are

afforded “greater latitude.” Id. at 183 (quoting Jannotti, 673 F.2d at

609).

In this case, the FBI was investigating active members of an

extremist group engaged in ongoing weapons violations and committed

to obtaining additional firearms, planning criminal activities, and

taking violent action to advance its racist, neo-Nazi agenda. The group

held meetings in rural locations where surveillance and other less

intrusive investigative techniques would have been difficult to conduct

37
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 41 of 50

without detection, and communicated about its activities through small

networks of individuals via the Internet. The illegal activities of the

defendants and other ASF and Combat 18 members involving firearms,

drug trafficking, and bomb-making posed a serious potential risk to

public safety and required the FBI to use undercover investigative

techniques to identify the members and activities of the criminal group

and to neutralize that risk.

Given the tight-knit nature of the ASF-Combat 18, its intense,

disciplined, and violent ideology, and its preference for meeting in

remote areas and communicating through an insular membership

network via social media, it is less likely that the FBI investigators

would have been able to detect its ongoing criminal activities, absent

the undercover investigation. For that reason, the defendants and their

criminal activities in the ASF-Combat 18 represent the kind of “fleeting

and elusive” and “difficult to detect crimes” requiring broader, and more

intensive methods of investigation. Lakhani, 480 F.3d at 182-83;

Twigg, 588 F.2d at 378;, Jannotti, 673 F.2d at 609. Accordingly, the

investigative conduct in this case was commensurate with the nature of

38
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 42 of 50

the criminal group and activities charged in the indictment, and

therefore does not rise to the level of a due process violation.

3. Lough and his Co-Defendants Provided Substantial

Logistical Support for Multiple Interstate Transfers of
Contraband.
In considering the application of the outrageousness defense, the

Third Circuit has examined the level of knowledge, skills and abilities

contributed by defendants to an illegal scheme. In Twigg, the Third

Circuit determined that neither defendant had the skills, expertise, or

“know-how with which to actually manufacture methamphetamine.”

588 F.2d at 381-82. In that case, the DEA informant furnished all the

laboratory expertise and received all the chemicals, glassware, and

equipment necessary to make methamphetamine from the DEA agents.

Id. In fact, defendant Twigg “contributed nothing in terms of expertise,

money, supplies, or ideas,” and would not even have shared in the

proceeds from the sale of the drug.” Id.

Here, in marked contrast, Lough, Steever, Baird, Dykes, and

Robards collaborated and coordinated to provide security and logistical

support for four separate transfers of methamphetamine and one

transfer of machine gun parts across state lines. Lough and Steever

39
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 43 of 50

participated in all four of the operations, and Lough supplied his own

vehicle on each of those occasions in support of the criminal activities.

Lough traveled a substantial distance from Virginia to New Jersey,

Pennsylvania, and Maryland to attend meetings to discuss the

operations and to participate in the transport of crystal

methamphetamine and machine gun parts. Moreover, Lough and his

confederates fully expected to be paid for their efforts, and they jointly

obtained gift cards with the criminal proceeds to fund the purchase of a

wide variety of firearms, including pistols and assault-style rifles.

4. Lough and his Co-defendants Were Predisposed to Commit

the Offenses.

While distinguishing between the defense of entrapment from a

due process claim of outrageous government conduct, the Third Circuit

also has cautioned that due process should not be used merely as a

device to circumvent the predisposition test of the entrapment defense.

Lakhani, 480 at 180; Nolan-Cooper, 155 F.3d at 231; Jannotti, 673 F.2d

at 608. Notwithstanding whether criminal predisposition should

preclude a due process defense, as a practical matter, the question of

the defendant’s predisposition to commit the crime is inherently related

to the alleged outrageousness of the government conduct while

40
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 44 of 50

investigating the crime. As Justice Powell emphasized in Hampton v.

United States, “the cases, if any, in which proof of predisposition is not

dispositive will be rare. Police overinvolvement in crime would have to

reach a demonstrable level of outrageousness before it could bar

conviction. This would be especially difficult to show with respect to

contraband offenses, which are so difficult to detect in the absence of

undercover Government involvement.” 425 U.S. 484, 495 n. 7 (1976)

(concurring in the judgment).

Consistent with Justice Powell’s point about the dispositive effect

of criminal predisposition (or the lack thereof), the Third Circuit in

Twigg , upheld a claim of outrageousness where there was little

evidence that the defendants were predisposed to commit the crime, or

even aware of the ultimate illegal purpose of the errand they performed.

588 F.2d at 381-82. In contrast, the Third Circuit in Lakhani found

substantial evidence of predisposition, and as a result the Court of

Appeals had no difficulty holding that the government conduct did not

rise to the level of a due process violation. 480 F.3d at 182-83. In

rejecting the due process defense in Lakhani, the Third Circuit

distinguished Twigg, the only case in which the Third Circuit has held

41
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 45 of 50

that the government’s conduct offended due process. In Twigg, the

government agent proposed to the defendants setting up a

methamphetamine lab, acquired the production site and all the

equipment and raw materials, and was in complete charge of the lab,

while the defendants’ assistance was minor and at the specific direction

of the government agent. Lakhani, on the other hand, involved an

international terrorism investigation in which the government agent

solicited the defendant to acquire a missile, but the defendant eagerly

agreed, made several trips to the Ukraine in search of the missile, relied

on his own experience in the arms trade, communicated with three

separate arms companies, falsified shipping documents, and deployed

his own money laundering network. 480 F.3d at 182.

Here, the proof of Lough’s and his co-conspirators’ criminal

predisposition effectively disposes of his claim that the investigative

efforts were outrageous. Like the defendant weapons trader in

Lakhani, Lough, Steever, Baird, and Dykes responded readily and

eagerly to the project proposals presented by the UCE’s to generate

funds to acquire firearms to carry out the ASF-Combat 18 program. Id.

at 179-80 (predisposition reflected in “ready response” to government-

42
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 46 of 50

initiated arms deal). In fact, Lough and his confederates told the UCE’s

that they were available anytime for service unit assignments. As

Lough assured the UCE, “. . . that’s why I always make sure people …

call me, cause I always need the money . . . I’m always ready to go.”

Exhibit 7, 9-10.

Moreover, although he did not travel overseas multiple times like

the arms trader in Lakhani, Lough and his conspirators traveled

considerable distances from New Jersey, Virginia, Maryland, and

Pennsylvania both to attend planning sessions for ASF-Combat 18

service unit activities and to actually transport drugs and machine gun

parts and conduct financial transactions with cash proceeds from the

criminal activity. Cf. id. at 180 (multiple self-funded overseas trips

revealed defendant’s predisposition to commit criminal offense). Lough

and Steever conferred via text message concerning ASF-Combat 18

members who were available to participate in the service unit projects,

meeting times and locations, and other logistical aspects of their

criminal activities. In addition, they contributed a portion of their

earnings from providing security and transportation of contraband

43
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 47 of 50

toward a pool of gift cards to be used in acquiring firearms for the ASF-

Combat 18 service unit.

Moreover, unlike the defendant in Twigg who was unaware of the

ultimate purpose of their efforts until it was explained by an informant,

Lough and his conspirators fully understood that they were

transporting crystal methamphetamine and machine gun parts. In fact,

Lough described for the UCE his past experience in Arizona making

and “slinging” meth. And, in contrast to the Twigg defendants who

“contributed nothing in terms of expertise, money, supplies, or ideas” to

the criminal activity, Lough, Steever, Baird, Dykes, and Robards offered

their access to a network of ASF-Combat 18 members to assist in the

criminal activities and provided direct logistical support and security

for multiple transfers of contraband.

Finally, it is highly likely that given their demonstrated

predisposition for acquiring weapons and firearms, ranging from

assault-style rifles to brass knuckles, Lough and his co-defendants and

defendants would have obtained firearms through illegal means,

regardless of their participation in the service unit opportunities

developed through the undercover investigation. Lough and the

44
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 48 of 50

codefendants were involved in ongoing criminal activities with other

ASF-Combat 18 members before the UCE’s ever proposed the

opportunity to participate in the transportation of crystal

methamphetamine and machine gun parts. They readily responded to

the illicit proposal presented by the UCE’s, with full knowledge it was

illegal, and applied their prior criminal experience and mobilized their

existing network of ASF-Combat 18 members to carry out the offenses.

45
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 49 of 50

C. CONCLUSION

For the foregoing reasons, the United States respectfully requests

the Court to deny Lough’s motion to dismiss for alleged outrageous

government misconduct.

Respectfully submitted,

DAVID J. FREED
United States Attorney

s/George J. Rocktashel
GEORGE J. ROCKTASHEL
Assistant United States Attorney
Attorney I.D. No. PA 44922
United States Attorney’s Office
240 West Third Street, Suite 316
Williamsport, PA 17701
Telephone: 570-326-1935
Facsimile: 570-326-7916
Email: [email protected]

Date: March 9, 2018

46
 Case 4:17-cr-00139-MWB Document 142 Filed 03/09/18 Page 50 of 50

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIM. NO. 4:17-00139-4

:
v. : (JUDGE BRANN)
:
JUSTIN LOUGH : FILED VIA ECF

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this Friday, March 9,

2018, he served a true and correct copy of the foregoing

BRIEF OF THE UNITED STATES IN OPPOSITION TO

DEFENDANT JUSTIN LOUGH’S MOTION FOR
REVOCATION OF DETENTION ORDER

by ECF to:

Addressee: D. Toni Byrd, Esquire

[email protected]

s/George J. Rocktashel
GEORGE J. ROCKTASHEL
Assistant United States Attorney
Attorney I.D. No. PA44922

47