United States v. Alex Pedrin, Jr. , 797 F.3d 792 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10623
Plaintiff-Appellee,
D.C. No.
v. 4:09-cr-02073-
CKJ-GEE-2
ALEX JOSEPH PEDRIN, JR., AKA
Alex Pedrin, Jr.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
March 13, 2015—San Francisco, California
Filed August 17, 2015
Before: John T. Noonan, William A. Fletcher,
and Morgan Christen, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Noonan
2 UNITED STATES V. PEDRIN
SUMMARY*
Criminal Law
Affirming a conviction and sentence for conspiracy to
possess with intent to distribute cocaine, the panel held that
the defendant’s prosecution did not result from “outrageous
government conduct.”
The defendant was the target of a drug “stash house”
sting, in which an undercover agent of the Bureau of Alcohol,
Tobacco, and Firearms suggested that he, the defendant, and
a co-conspirator join forces, rob a fictitious stash house, and
split the proceeds. Following United States v. Black, 733
F.3d 294 (9th Cir. 2014), the panel held that this reverse sting
operation was not outrageous government conduct warranting
the dismissal of the indictment where the co-conspirator
reached out to the government, and not vice versa; the
defendant readily agreed to participate in the supposed stash-
house robbery; and the defendant supplied plans and
materials. These circumstances provided a sufficient basis
for the government to infer that the defendant had a
predisposition to take part in the planned robbery.
Dissenting, Judge Noonan wrote that the defendant was
not known to the government to be predisposed to raid a stash
house at the time when an agent of the ATF proposed this
action to him. Accordingly, even though the defendant did
not argue entrapment, the court should hold that he was
entrapped because the ATF originated the criminal design,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PEDRIN 3
implanted it in the defendant’s mind, and induced him to
commit the crime that the government then prosecuted.
COUNSEL
David Lipartito (argued), Tucson, Arizona, for Defendant-
Appellant.
Robert Lally Miskell (argued), Assistant United States
Attorney, and John S. Leonardo, United States Attorney,
Tucson, Arizona, for Plaintiff-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
In this appeal, we again address what constitutes
“outrageous government conduct” in the context of a reverse
sting operation.
I. Background
For several decades, the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) has conducted reverse sting operations in
order to identify and apprehend people who can be enticed
into robbing fictitious drug “stash houses” (houses in which
drugs are “stashed”). In these “stash house stings,” an
undercover agent poses as a disgruntled drug courier with
knowledge about a stash house protected by armed guards
and containing a large amount of cocaine. The agent suggests
to targets of the reverse sting that they join forces, rob the
house, and split the proceeds. Once the targets have taken
4 UNITED STATES V. PEDRIN
steps to rob the fictional house, they are arrested and charged
with conspiracy to violate federal narcotics laws.
The defendant in this case, Alex Pedrin, Jr., was the target
of a stash-house sting in Arizona in August 2009. The sting
was planned by ATF agent Richard Zayas, at the time a 20-
year veteran of the bureau. According to Zayas, he has
planned “hundreds” of stash-house stings, beginning in
Miami, Florida in the 1990s. See, e.g., United States v.
Cortes, 757 F.3d 850, 855 (9th Cir. 2014) (as amended)
(noting Zayas’s involvement); United States v. Black,
733 F.3d 294, 298 (9th Cir. 2013) (same); United States v.
Docampo, 573 F.3d 1091, 1093 (11th Cir. 2009) (same);
United States v. Paisley, 178 F. App’x 955, 957 (11th Cir.
2006) (same). “[T]he ATF has a standard playbook for such
operations, and the facts between cases are frequently nearly
identical.” United States v. Kindle, 698 F.3d 401, 404 (7th
Cir. 2012), rev’d en banc sub nom. United States v. Mayfield,
771 F.3d 417 (7th Cir. 2014) (en banc).
Zayas met Pedrin through a confidential informant, Jesus
Contreras. Contreras was working with Zayas in the ATF’s
Tucson office. Contreras told Zayas that his nephew, Omar
Perez, had called him to “ask[] for work,” which Contreras
understood to mean work stealing drugs. Contreras set up a
meeting between Zayas, Perez, and Pedrin on August 17,
2009. The meeting took place in Zayas’s car. During a
videorecorded conversation in the car, Zayas described
himself to Perez and Pedrin as a disgruntled cocaine courier.
He told the two men that he knew about a local stash house,
guarded by two armed men, that contained between 40 and 50
kilograms of cocaine. Zayas said he was looking for
“someone to go in there and take everything.” He asked the
UNITED STATES V. PEDRIN 5
men, “What do you think? . . . Can that be done?” Each man
assented.
Zayas met with Perez and Pedrin again on August 19.
The men agreed that the robbery would take place two days
later, on August 21. Zayas pressed Perez and Pedrin for
details about their plan. Pedrin responded, “We’ll just . . . go
right when you go in so we’re all together, you know what I
mean? . . . Put everybody down. Make them tell us where
everything is at and then we leave and then we go split it up.”
In response to Zayas’s questions, Pedrin said he and Perez
had recruited three other men. Two of them would go into
the house with Pedrin and the other would stay outside with
Perez. Pedrin told Zayas that he had obtained “walkie talkies
and scanners” to facilitate the operation. The details were
planned by the defendants themselves. At no point did Zayas
instruct Pedrin and Perez how to carry out the robbery.
On August 21, the day of the planned robbery, Zayas met
with all five men. Zayas stated again that the stash house
contained between 40 and 50 kilograms of cocaine and that
it was guarded by at least two armed men. Zayas then
instructed Pedrin and the others to follow him to a storage
locker at which they were to drop Zayas’s share of cocaine
after the robbery. On the way to the locker, however, the
men became suspicious and pulled into a nearby trailer park.
One of the men took a different car to the storage locker
location, where he saw ATF agents. He called the others and
warned them that it was a sting. The men fled but were
picked up by federal and state officers shortly afterward.
Pedrin was charged with conspiracy to possess with intent
to distribute 40 to 50 kilograms of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. He was
6 UNITED STATES V. PEDRIN
tried before a jury in February 2011. One of Pedrin’s co-
defendants, Terry Bombard, testified at Pedrin’s trial in
exchange for a lighter sentence. Bombard said that he had
met Pedrin over four years earlier in connection with another
robbery of a drug stash house. Pedrin, he said, had organized
a “gang” of nine men to steal between 200 to 250 pounds of
marijuana. Bombard testified that he had participated in
thirteen or fourteen stash-house robberies, most or all of them
with Pedrin. Pedrin was convicted and sentenced to 210
months in prison.
Pedrin challenges his conviction and sentence on eleven
grounds. We resolve Pedrin’s contention that his prosecution
resulted from “outrageous government conduct” in this
opinion, and the remaining ten contentions in a concurrently
filed memorandum disposition. We have jurisdiction under
28 U.S.C. § 1291. We review the district court’s decision not
to dismiss the indictment for outrageous government
misconduct de novo, viewing the evidence in the light most
favorable to the government. Black, 733 F.3d at 301. We
affirm.
II. Discussion
A prosecution results from outrageous government
conduct when the actions of law enforcement officers or
informants are “so outrageous that due process principles
would absolutely bar the government from invoking judicial
processes to obtain a conviction.” United States v. Russell,
411 U.S. 423, 431–32 (1973). A federal court must dismiss
a prosecution based on such actions. The standard for
dismissal on this ground is “extremely high.” United States
v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). Dismissals are
“limited to extreme cases in which the government’s conduct
UNITED STATES V. PEDRIN 7
violates fundamental fairness.” United States v. Gurolla,
333 F.3d 944, 950 (9th Cir. 2003). An indictment can be
dismissed only where the government’s conduct is “so
grossly shocking and so outrageous as to violate the universal
sense of justice.” United States v. Stinson, 647 F.3d 1196,
1209 (9th Cir. 2011) (quoting United States v. Restrepo,
930 F.2d 705, 712 (9th Cir. 1991)).
Pedrin argues that the reverse sting operation that led to
his conviction was “outrageous government conduct” under
this standard and that his indictment accordingly should be
dismissed. We considered and rejected a similar argument in
Black, 733 F.3d 294. Like Pedrin, the defendants in Black
were the targets of a stash-house sting operation planned by
Agent Zayas. Id. at 298–301. They argued that Zayas, by
initiating contact with the defendants, describing the fictitious
stash house, and suggesting that they rob it — all without any
individualized suspicion about the defendants’ criminal
history — had engaged in “outrageous” conduct, and that
their indictments should be dismissed. See id. at 306. We
expressed “concerns” with the ATF’s tactics, but we
ultimately concluded that they “did not cross the line.” Id. at
307, 310. Black compels the same conclusion here.
In Black, we identified six factors “as relevant to whether
the government’s conduct was outrageous”:
(1) known criminal characteristics of the
defendants; (2) individualized suspicion of the
defendants; (3) the government’s role in
creating the crime of conviction; (4) the
government’s encouragement of the
defendants to commit the offense conduct;
(5) the nature of the government’s
8 UNITED STATES V. PEDRIN
participation in the offense conduct; and
(6) the nature of the crime being pursued and
necessity for the actions taken in light of the
nature of the criminal enterprise at issue.
Id. at 303. We noted that “the first three are most relevant to
the way in which the government set up the sting,” while “the
fourth and fifth look to the propriety of the government’s
ongoing role in the sting,” and the last focuses on the
justification for the operation. Id. at 303–04. Attempting to
distinguish this case from the facts of Black, Pedrin focuses
on the first three factors. He contends that Zayas knew less
about the defendants’ propensity to commit crimes in this
case than he knew about the defendants’ similar propensities
in Black. We disagree.
First, the “major” concern present in Black — that the
government found the defendants in that case by “trolling for
targets,” id. at 303 — is not present here. In Black, the
confidential informant visited “a bad part of town, a bad bar,
you know . . . bars where you’ve got . . . a lot of criminal
activity” in order to identify and recruit targets. Id.
(alterations in original). We wrote in Black, “The risk
inherent in targeting such a generalized population is that the
government could create a criminal enterprise that would not
have come into being but for the temptation of a big payday
. . . .” Id. Here, by contrast, one of the defendants — Omar
Perez, Pedrin’s co-conspirator — approached the informant
to look for work stealing drugs. The government thus had
little reason to suspect that Pedrin and Perez were
“vulnerable” persons “who would not otherwise have thought
of doing such a robbery.” Id.
UNITED STATES V. PEDRIN 9
Second, as in Black, the government’s subsequent
inquiries “mitigated” any concerns it might have had that the
defendants were reluctant participants in the operation. See
id. at 307. On August 17, when they first met with Zayas,
Pedrin and Perez readily agreed to carry out the robbery.
Two days later, they had recruited three other men; had
obtained “walkie talkies and scanners” to facilitate the
robbery; and had assigned roles and responsibilities during
the robbery. Although Pedrin and Perez were less voluble
than the defendants in Black, who boasted loudly of their
criminal records, their conduct — like the conduct of the
Black defendants — gave rise to an inference that they had
previously committed similar crimes. See id. at 300, 307.
We note that in assessing whether the government’s
conduct was “outrageous,” the relevant question is what the
government knew when it was setting up the sting, not what
it learned later. On appeal, the government argues that
Pedrin’s criminal record shows that Zayas “infiltrated [a]
home invasion gang that was already engaged in criminal
activity.” But the government admits that Zayas was not
aware, as he was setting up the sting, that Pedrin had
previously robbed other stash houses. Instead, the
government learned of Pedrin’s alleged prior involvement in
stash house robberies only after it had apprehended and
interviewed Bombard, one of the co-conspirators. As we
suggested in Black, the question is not whether a defendant in
fact “may have been predisposed to commit a stash house
robbery.” Id. at 306 n.9. Rather, it is whether the
government had reason to believe, in light of what it knew as
it was setting up the sting, that a defendant was so
predisposed. If Black was less than clear on this point, we
make it clear today: What the government learns only after
the fact cannot supply the individualized suspicion that is
10 UNITED STATES V. PEDRIN
necessary to justify the sting if the government had little or no
basis for such individualized suspicion when it was setting up
the sting.
In this case, however, the government knew enough about
Pedrin as it was setting up the sting to eliminate the
possibility that “it sought to manufacture a crime that would
not have otherwise occurred.” Id. at 307. One of Pedrin’s
co-conspirators, Perez, reached out to the government, and
not vice versa; Pedrin readily agreed to participate in the
supposed stash-house robbery; and Pedrin supplied plans and
materials. This provided a sufficient basis for the
government to infer that Pedrin had a predisposition to take
part in the planned robbery. Like the majority in Black, we
do not lightly dismiss the “concerns about the risks of
government overreaching inherent in fictitious stash house
sting operations.” Id. at 310 n.13. But we are compelled by
Black to conclude that the government’s conduct here was not
“so grossly shocking and so outrageous as to violate the
universal sense of justice.” Stinson, 647 F.3d at 1209
(quoting Restrepo, 930 F.2d at 712). The district court
therefore correctly denied Pedrin’s motion to dismiss the
indictment.
Conclusion
Pedrin’s prosecution did not result from “outrageous
government conduct.” For that reason, and for the reasons
stated in our concurrently filed memorandum disposition, we
AFFIRM his conviction and sentence.
UNITED STATES V. PEDRIN 11
NOONAN, Circuit Judge, dissenting:
The undisputed and dispositive fact is that Pedrin was not
known to the government to be predisposed to raid a stash
house at the time when an agent of the ATF proposed this
action to him. The law is settled: “Government agents may
not originate a criminal design, implant in an innocent
person’s mind the disposition to commit a criminal act, and
induce commission of a crime so that the government may
prosecute.” Jacobson v. United States, 503 U.S. 540, 548
(1992). In this case, the ATF originated the criminal design,
implanted it in Pedrin’s mind and induced him to commit the
crime that the government then prosecuted.
Who has the burden of proof as to the defendant’s
disposition? In Jacobson, the Supreme Court provided the
answer: “[T]he prosecution must prove beyond reasonable
doubt that the defendant was disposed to commit the criminal
act prior to first being approached by government agents.”
Id. at 549. The timing of the defendant’s disposition is
critical: “The sole issue is whether the Government met its
burden of proving that petitioner was predisposed to violate
the law before the Government intervened.” Id. at 549 n.2.
(italics in original).
No showing has been made that Pedrin was known to be
predisposed to commit this crime prior to being approached
by the agents of ATF. The ATF laid out the entire stash
house scheme to him before he had said a single word. The
prosecution of his case should be dismissed.
The majority addresses Pedrin’s claim of outrageous
government conduct – a defense that the Supreme Court has
never found to be applicable. See United States v. Russell,
12 UNITED STATES V. PEDRIN
411 U.S. 423, 431 (1973). The majority does not address
entrapment for what would appear to be a good reason:
entrapment was not argued by Pedrin. It is within our power
to hold that the argument was waived. It is also within our
power to notice a meritorious argument unmentioned by
counsel. See Hormel v. Helvering, 312 U.S. 552, 557 (1941)
(“There may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate
court, where injustice might otherwise result, to consider
questions of law which were neither pressed nor passed upon
by the court or administrative agency below.”); see also
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 540 (1999). As
a court, we are more than referees tallying scores. We have
a live concern that human beings caught in the legal process
be treated fairly.
Entrapment is not a defense created by the Constitution or
by statute. It is judge-created. It was first recognized by a
federal court in a decision of the Ninth Circuit. Woo Wai v.
United States, 223 F. 412 (9th Cir. 1915). It was first
recognized by the Supreme Court in Sorrells v. United States,
287 U.S. 435 (1932).
Entrapment as a defense is the creation of a collaboration
between a court and Congress. What Chief Justice Hughes
said in Sorrells was that Congress could not have intended to
punish a man trapped into buying bootleg liquor. Chief
Justice Hughes did not cite the legislative history of the
National Prohibition Act. What he did was to attribute
sensible motivation to the authors of the prohibition law. In
his reading they did not intend to criminalize the purchase of
the liquor when the purchase was induced by a prohibition
agent.
UNITED STATES V. PEDRIN 13
This kind of collaboration – the judicial reading of
legislative purpose without reference to specific legislative
evidence – has a history commanding respect, as Chief
Justice Hughes demonstrated beginning with the statement
that the literal interpretation of statutes “has frequently been
condemned.” Id. at 446. He continued with the invocation of
a decision by Chief Justice John Marshall. Sorrells, 287 U.S.
at 446.
In Marshall’s decision, United States v. Palmer, 16 U.S.
1610 (1818), John Palmer and Thomas Wilson of Boston and
Barney Colloghan of Newburyport were charged by a federal
grand jury with attacking and looting a Spanish ship during
the rebellion against Spain in South America. The New
England privateers had taken gold and silver worth $60,000
plus a rich cargo of commodities including honey, rum, and
sugar. The circuit court divided one–one on the application
of the federal piracy statute, and the case was certified to the
Supreme Court. No counsel appeared for the prisoners. The
government earnestly argued for their conviction. Chief
Justice Marshall delivered the opinion of the Court.
In so many words, the statute applied to “any person or
persons” who committed piracy. No exceptions were
specified. Anyone in the world who committed piracy fell
within the law. But had Congress meant to include every
person? No, Marshall answered, Congress must have
intended only crimes that were against the United States.
Palmer, 16 U.S. at 624–35. The prisoners were free.
Analogously, in United States v. Kirby, the defendant was
indicted for obstructing the mail. 74 U.S. 482 (1868). He had
acted on a state warrant and arrested a mail carrier on a
charge of murder. Speaking for a unanimous court, Justice
14 UNITED STATES V. PEDRIN
Stephen Field reversed. His brief opinion appealed to “the
common sense of man.” Id. at 487. As Puffendorf had noted,
a Bolognese statute that forbad the drawing of blood in the
street did not apply to a surgeon who treated a person who
fell in the street. Again, as Plowden said, a statute against a
jail break would not apply to a prisoner whose life was
endangered by fire in the prison. It was “always . . . to be
presumed” that the legislature intended exceptions that would
avoid “injustice, oppression, or absurd consequences.” Id. at
486–87.
In Holy Trinity Church v. United States, a federal statute
made it unlawful to prepay the transportation of any aliens
who were under contract to perform “service of any kind” in
the United States. 143 U.S. 457 (1892). An Episcopal church
had paid the way from England of a minister who would be
its pastor. The United States sued to collect a penalty. The
circuit upheld the fine. The Supreme Court unanimously
reversed. The reason for the law, Justice Brewer wrote, was
to be found in its legislative history that showed that its
purpose was to prevent employers importing “an ignorant and
servile class of foreign laborers.” Id. at 463. The statute
expressly exempted the importation of actors, artists,
lecturers, singers, and domestic servants. The existence of
these exemptions made by the legislature did not deter the
court from adding its own. No purpose against religion could
be found in the statute because “this is a religious people.”
Id. at 465. The legislature could not have meant to penalize
the importation of priests, ministers, or rabbis. Ecumenical
within the orbit of religious belief then active in America, the
court’s opinion met with acceptance.
Invoking these and other precedents showing the latitude
the court enjoyed in creating exceptions to federal law, Chief
UNITED STATES V. PEDRIN 15
Justice Hughes in Sorrells turned to the case at hand.
Congress could not have meant the prohibition law should be
enforced “by the instigation by government officials of an act
on the part of persons otherwise innocent in order to lure
them by its commission and to punish them.” Sorrells,
287 U.S. at 448. Prosecution in such a case was “outside the
purview” of the statute and was “abhorrent to the sense of
justice.” Id. at 449. The judgment of conviction was
reversed.
In 1958, the Supreme Court explicitly reaffirmed Sorrells’
teaching on entrapment. Sherman v. United States, 356 U.S.
369 (1958). Sherman, seeking to overcome an addiction to
narcotics, encountered Kalchinian, already active as an
informer, who asked Sherman if he knew a good source of
narcotics. After several repetitions of the question, Sherman
obtained narcotics which he shared with Kalchinian, charging
him $15 per delivery. Kalchinian then tipped off a narcotics
agent, who observed further sales by Sherman to Kalchinian.
At trial, the question was whether Sherman was “already
predisposed” to sell the narcotics or whether the informer
“had caused an otherwise unwilling person” to sell the drugs.
Id. at 371. The district court and the Second Circuit
confirmed Sherman’s conviction. Chief Justice Warren,
writing for the Supreme Court, reversed, holding it to be
“patently clear” that Sherman had been induced by
Kalchinian. Id. at 373. The sales to the narcotics agent were
not independent acts, but part of a course of conduct by
Sherman which was the product of the informer’s
inducement. Sherman’s four-year old conviction for selling
drugs and his five-year old conviction for buying drugs were
not evidence of Sherman’s predisposition when Kalchinian
approached him.
16 UNITED STATES V. PEDRIN
Sorrells is a live and controlling precedent. The case has
been cited 28 times by the Supreme Court, 102 times by this
circuit, and 23 times by district courts within the circuit.
Sorrells has never been overruled or treated as irrelevant. Its
central holding has not been challenged. Sorrells is an apt
precedent for holding the ATF’s stash house trick to be
entrapment. In fact, the ATF has exceeded the prohibition
agent in Sorrells. He sold actual liquor. The ATF sponsored
the theft of imaginary drugs.
The majority correctly concedes that “[w]hat the
government learns only after the fact cannot supply the
individualized suspicion that is necessary to justify the sting.”
Maj. Op. at 9–10. What did the ATF know about Pedrin
before it approached him? The majority does not say. The
record says that the ATF knew nothing. It was a shot in the
dark when the ATF enlisted Pedrin as a co-conspirator. The
majority speaks of a different defendant, Omar Perez, when
at page 8 it addresses the question. What the ATF knew of
Perez establishes nothing as to what the ATF knew about
Pedrin.
Once enlisted, Pedrin recruited others, sketched a scenario
for the robbery, and obtained walkie-talkies and scanners. As
the ATF had already selected Pedrin as a player in its
imagined robbery, none of this activity had any significance.
The ATF was already at work with Pedrin cast by the agency
as a co-conspirator.
As the case now stands, the ATF enhances its reputation
by its successful ruse. The government of the United States
is diminished by its dependence on the duplicity of the
agency. Because of a choice made by Pedrin or his counsel,
entrapment was not argued and Jacobson was uncited. By
UNITED STATES V. PEDRIN 17
the rules governing litigation we can affirm Pedrin’s
conviction. By our commitment to a humane justice, we are
called to dismiss the case made by the entrappers.