United States v. Cordae Black , 733 F.3d 294 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10036
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01040-
MHM-4
CORDAE L. BLACK,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-10037
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01040-
MHM-6
ANGEL MAHON,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-10039
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01040-
MHM-2
KEMFORD J. ALEXANDER,
Defendant-Appellant.
2 UNITED STATES V. BLACK
UNITED STATES OF AMERICA, No. 11-10077
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01040-
MHM-3
TERRANCE L. TIMMONS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
January 16, 2013—San Francisco, California
Filed October 23, 2013
Before: John T. Noonan, Jr., Susan P. Graber,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge Noonan
UNITED STATES V. BLACK 3
SUMMARY*
Criminal Law
The panel affirmed four defendants’ convictions and
sentences for conspiracy to possess cocaine with intent to
distribute and use of a firearm in furtherance of a drug
trafficking offense, arising out of a reverse sting operation in
which an ATF undercover agent recruited the defendants to
carry out an armed robbery of a fictional cocaine stash house.
The panel affirmed the district court’s denial of the
defendants’ motion to dismiss for outrageous government
conduct. The panel explained that although the initiation of
the reverse sting operation raises questions about possible
overreaching, the defendants have not met the extremely high
standard of demonstrating that the facts underlying their
arrest and prosecution are so extreme as to violate
fundamental fairness or are so shocking as to violate the
universal sense of justice.
The panel also affirmed the district court’s rejection of the
defendants’ sentencing entrapment argument.
Dissenting, Judge Noonan wrote that the majority gives
approval to the government tempting persons in the
population at large currently engaged in innocent activity and
leading them into the commission of a serious crime, which
the government will then prosecute.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. BLACK
COUNSEL
Patricia A. Hubbard (argued), Phoenix, Arizona, for
Defendant-Appellant Kemford J. Alexander.
Tara K. Hoveland (argued), South Lake Tahoe, California, for
Defendant-Appellant Cordae L. Black.
Donald W. MacPherson (argued) and Bradley Scott
MacPherson, The MacPherson Group, P.C., Phoenix,
Arizona; Nathaniel K. MacPherson, The MacPherson Group,
P.C., Encinitas, California, for Defendant-Appellant Angel
Mahon.
Florence M. Bruemmer (argued), Anthem, Arizona, for
Defendant-Appellant Terrance Timmons.
Ann Birmingham Scheel, Acting United States Attorney,
Randall M. Howe, Deputy Appellate Chief, and Karla Hotis
Delord (argued), Assistant United States Attorney, Phoenix,
Arizona, for Plaintiff-Appellee (Nos. 11-10036 and 11-
10039).
John S. Leonardo, United States Attorney, and Karla Hotis
Delord (argued), Acting Deputy Appellate Chief, Phoenix,
Arizona, for Plaintiff-Appellee (No. 11-10037).
Ann Birmingham Scheel, Acting United States Attorney,
Randall M. Howe, Deputy Appellate Chief, and Theresa Cole
Rassas, Assistant United States Attorney, Phoenix, Arizona,
for Plaintiff-Appellee (No. 11-10077).
UNITED STATES V. BLACK 5
OPINION
FISHER, Circuit Judge:
Defendants Cordae Black, Kemford Alexander, Angel
Mahon and Terrance Timmons were convicted of conspiracy
to possess cocaine with intent to distribute and use of a
firearm in furtherance of a drug trafficking offense. They
were arrested as part of a reverse sting operation set up in
Phoenix, Arizona by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF).1 An ATF undercover agent,
working with a confidential informant, recruited the
defendants to carry out an armed robbery of a (fictional)
cocaine stash house. The defendants readily agreed, and in
varying degrees participated in planning the robbery over
several days. They were arrested as they were on their way
to rob the supposed stash house.
Before trial, the defendants moved to dismiss the
indictment, contending the fake robbery was the product of
outrageous government conduct. After three days of hearings
on the issue, the district court denied the motions in a
thorough and thoughtful 26-page order, concluding that “[o]n
balance, the government appears to have acted reasonably,”
and its conduct was “plainly not so egregious as to shock the
‘universal sense of justice.’” A jury convicted the defendants
on both counts. Count one, for conspiracy, carried a statutory
minimum sentence of 10 years.
1
A “reverse sting” occurs when the government initiates the criminal
conduct, setting up a fictitious crime and arresting the criminals as they
begin to carry out what they believe is a real crime.
6 UNITED STATES V. BLACK
At sentencing, the defendants argued the government was
guilty of sentencing entrapment because it deliberately set an
amount of cocaine in its fictional robbery to ensure the
defendants would receive at least a mandatory minimum
sentence of 10 years on the conspiracy count. The district
court denied their requests to reduce the quantity of cocaine
in calculating their sentences.
We agree with the district court, and affirm the denial of
the defendants’ motions to dismiss for outrageous
government conduct. Although the initiation of the reverse
sting operation here raises questions about possible
overreaching, as we shall explain, the defendants have not
met the “extremely high standard,” United States v. Garza-
Juarez, 992 F.2d 896, 904 (9th Cir. 1993), of demonstrating
that the facts underlying their arrest and prosecution are so
“extreme” as to “violate[] fundamental fairness” or are “so
grossly shocking . . . as to violate the universal sense of
justice,” United States v. Stinson, 647 F.3d 1196, 1209 (9th
Cir. 2011). We also affirm the district court’s rejection of
sentencing entrapnt.2
BACKGROUND
Several years ago, the Bureau of Alcohol, Tobacco,
Firearms and Explosives implemented Operation Gideon,
conducting a series of undercover sting operations developed
to find and arrest crews engaging in violent robberies of drug
stash houses (which ATF denominates as “home invasions”)
in residential neighborhoods. As an alternative to planting
fake drugs in a stash house and confronting the armed robbers
2
Other issues raised by these consolidated appeals are addressed in a
concurrently filed memorandum disposition.
UNITED STATES V. BLACK 7
once they broke into the house, ATF developed what it
believed was a safer technique. ATF agents, working
undercover, would describe a fictitious cocaine stash house
to suspects, offering them the opportunity to plan and carry
out an armed robbery of the stash house. Once the robbery
plan was developed and the crew members were on their way
to what they believed was a real armed home invasion, they
were arrested. ATF decided to use this investigative
technique in Phoenix, Arizona because of the level of
violence and the number of kidnappings that had become
associated with stash house robberies.
The investigation and arrest of the defendants here
involved a confidential government informant (CI) and Agent
Richard Zayas, an undercover ATF agent. ATF brought the
CI from Miami to Phoenix (where he had never been)
specifically to assist in reverse sting operations. This work
was the CI’s sole source of employment, for which the CI
was paid $100 per day.3
The CI’s role was to “try and find some people that . . .
are willing to go commit a home invasion.” He was to talk to
such individuals, tell them that a friend had all of the
information about the home invasion and then set up a
meeting between the individual and Agent Zayas. He
testified that he found such individuals by “go[ing] to the
bars” and “meet[ing] people” who he then approached about
3
The record underlying the district court’s decision on the claim of
outrageous government conduct was thoroughly developed and included
a three-day hearing in which Zayas and the CI testified and video and
audio transcripts of all of the meetings between the defendants and Zayas
were played for the court. Unless otherwise noted, the facts related here
come from the testimony and recordings played at those hearings and from
the district court’s findings.
8 UNITED STATES V. BLACK
possibly becoming involved in such crimes. In doing so, he
targeted bars in “a bad part of town, a bad bar, you know . . .
bars where you’ve got . . . a lot of criminal activity.” He was
not instructed to look only for particular individuals, such as
those who were already involved in an ongoing criminal
operation or that he knew were about to commit a crime.
Zayas would then meet with interested individuals “to
determine whether or not they are actually involved in that
type of crime” and provide details on the fictitious home
invasion.
In July 2009, the CI went to a bar in Glendale, Arizona to
meet people as part of his work with ATF. He approached a
man named Curtis at the bar to see if he would be interested
in doing a home invasion. Curtis was not interested but said
he knew somebody who would be – Shavor Simpson, aka
“Bullet.” Curtis introduced the CI to Simpson, and the CI
told Simpson he had a friend who “has some information on
a house possibly with some dope in it.” He asked Simpson
whether he would be “interested in putting a crew together”
to rob the house. Simpson agreed that he would do it, and the
CI set up a meeting between Zayas and Simpson.4
On July 16, 2009, Zayas, Simpson and the CI met in a car
outside Simpson’s workplace. Zayas proceeded to tell
Simpson his cover story: He was a cocaine courier who
transported drugs for a group of Mexican drug dealers and
was unhappy with the pay he was receiving. He was
interested in robbing the Mexican drug dealers as retribution
for his low pay. Describing the modus operandi, Zayas told
4
All of Zayas’ conversations with the defendants were recorded on
audio or video; but none of the interactions the CI had with Curtis and
Simpson before they were introduced to Zayas was recorded.
UNITED STATES V. BLACK 9
Simpson that at the beginning or end of each month, he would
receive a call informing him that the drugs were ready for
transportation at a particular house, and that he would have
only 15 minutes to pick up the drugs or they would be moved
to a new location. When he would enter the house, he would
see two individuals, at least one of whom would be armed.
One individual would go to a back room, obtain 6 to 7
kilograms of cocaine, give the drugs to Zayas and tell him
where to take the drugs. Zayas also told Simpson that each
time he did this, he could see anywhere from 22 to 39
kilograms of cocaine in the living room alone and that he did
not know what might be in the back room, which contained
more cocaine.
Zayas emphasized several times that he wanted to make
sure the people Simpson involved in the proposed robbery
have the “balls to go do it because this ain’t no easy lick.” He
testified that, in relating the details regarding the fictitious
stash house, he purposely chose details that demonstrated a
particularly high potential for danger and violence to ensure
that only individuals who “are truly involved in this type of
crime” would agree to it and those who were not would back
out.
Simpson told Zayas that the day before, he had called his
“goons” who wanted to know whether “we gonna murc”5 the
men inside the stash house or “we gonna rob” them, to which
Zayas responded that he did not care. Simpson said that “real
nigger shoot for kill he gotta be down with that shit homey”
and that he and his “goons” are “ready” and “just waiting on
the . . . say so.” Simpson asked Zayas numerous times about
5
Zayas testified that “murc” means “murder.”
10 UNITED STATES V. BLACK
“how many goons we gonna need.” Each time, Zayas
responded that he did not know and that it was Simpson’s
call.
Simpson said that he and one of his “goons” “did this shit
already” but his friend “did ten years in prison” because “his
home boy snitched.” He told Zayas that he was “a four time
felony dog” with “17 misdemeanors” consisting of “[d]rugs,
guns, drugs, guns, drugs, guns, guns, drugs . . . that’s all I
been locked up for bro.” He also said that if anyone snitched
about the operation, whether it was one of his goons or
someone on Zayas’ side, “we’ll have to murc [him].” He said
that his “boy” had everything necessary to complete the
robbery: “He got ski masks, he got a leather glove and he got
his guns. He got a AK, he got a M16, he got a uh, a Desert
Eagle, he got a Mac10, got a 45 Glock.” He told Zayas,
“Don’t worry daddy you met a real Jamaican nigger, that’s
my family business, it’s where I work at.” Simpson
suggested that they meet again soon, after he had a
conversation withhis “goons and whoever gonna ride.”
The second meeting with Agent Zayas took place on
Sunday, July 26. This time, Zayas, the CI and Simpson were
joined by Cordae Black, whom Simpson introduced as his
“right hand soldier.” Zayas repeated his cover story about
being a disgruntled drug courier and what he knew about the
fictitious stash house. Black proposed several robbery plans.
He suggested that once Zayas was let into the stash house,
Black and Simpson would run in right afterwards to take the
occupants by surprise. He also mentioned the possibility of
taking an occupant to the back room as a hostage to obtain the
drugs that were there. Toward the end of the conversation, he
told Zayas, “I got this shit down to a science man.”
UNITED STATES V. BLACK 11
Simpson told Zayas that he and Black needed guns for the
robbery and that they did not have any. Zayas said he did not
have any either and that if he did, he would do the robbery
himself. Black eventually said that getting “burners” (guns)
should not be a problem.
When Black and Simpson told Zayas they intended to
perform the robbery without any other crew members, Zayas
questioned that decision, asking if they would be able to
handle it or would need more people. He said the men in the
stash house “ain’t just gonna hand it to you.” Black insisted
that having a small crew would be better for taking the stash
house by surprise. He told Zayas he had “just done this – I
just done it a few times.” Black and Simpson eventually said
they would probably bring one more crew member.
Zayas told Black and Simpson that he would receive the
next call about transporting cocaine in two days, on Tuesday,
July 28. The group decided to meet again on July 27, and
Zayas told Simpson and Black to bring whoever would be
participating in the robbery. Simpson testified at trial that
after the July 26 meeting with Black and Agent Zayas, he met
with Black, Angel Mahon, Kemford Alexander and Aaron
Marsh (who is not involved in this appeal) to further discuss
the robbery.6
The third meeting with Agent Zayas took place on July
27; Black, Simpson, Alexander, Mahon and Marsh were all
present. Zayas asked whether everyone would be doing the
robbery, to which Alexander responded, “Yeah.” Zayas again
repeated his cover story and the information he had about the
6
As part of his plea agreement, Simpson cooperated with the
government and testified against his codefendants at trial.
12 UNITED STATES V. BLACK
fictitious stash house. Alexander asked Zayas how he wanted
the robbery done. Zayas responded, “You tell me dude I
mean this is your gig, I mean I don’t know about this shit.”
Alexander asked Zayas what he wanted out of the robbery, to
which Agent Zayas responded, “[I]t’s an even split, bro, even
split.” The group made plans to meet the next day at noon.
Simpson testified at trial that after the meeting, he and the
other individuals who had met with Zayas went to
Alexander’s house to discuss the robbery. They discussed
such items as what each person would do with his portion of
the drugs, who would carry a gun and how many people
would enter the stash house.
The next day, the group did not show up to meet Agent
Zayas at noon. Zayas testified that he felt he was being
watched and that the crew was conducting a surveillance of
him. However, at about 12:25 p.m., as Zayas was about to
leave, Black, Alexander, Marsh and Mahon pulled up in two
vehicles, along with Terrance Timmons. Simpson did not
show up. Zayas briefly spoke with the individuals in each
vehicle, and Alexander introduced Timmons as his driver.
Zayas told the crew he had rented a warehouse unit nearby
where they should deliver his portion of the cocaine from the
stash house and asked them to follow him there. Once the
group arrived at the warehouse location, federal agents
arrested the robbery crew. A search of the vehicles
uncovered four loaded weapons in a hidden compartment.
Each of the defendants was charged with and convicted by a
jury of conspiracy to possess cocaine with intent to distribute
and use of a firearm in furtherance of a drug trafficking
offense.
UNITED STATES V. BLACK 13
STANDARD OF REVIEW
We review de novo the district court’s denial of a motion
to dismiss an indictment due to outrageous government
conduct. See Stinson, 647 F.3d at 1209. In doing so, we view
the evidence in the light most favorable to the government,
and we accept the district court’s factual findings unless they
are clearly erroneous. See United States v. Gurolla, 333 F.3d
944, 950 (9th Cir. 2003); United States v. Williams, 547 F.3d
1187, 1199 n.9 (9th Cir. 2008). We review for abuse of
discretion the district court’s decision not to use its
supervisory powers to dismiss an indictment. See Stinson,
647 F.3d at 1209.
We review de novo the district court’s interpretation of
the Sentencing Guidelines. See United States v. Crowe,
563 F.3d 969, 977 (9th Cir. 2009). We review for abuse of
discretion the district court’s rejection of the defendants’
sentencing entrapment argument. See United States v.
Yuman-Hernandez, 712 F.3d 471, 473 (9th Cir. 2013). We
review for clear error the district court’s factual findings
underlying its sentencing entrapment decision. See United
States v. Ross, 372 F.3d 1097, 1113–14 (9th Cir. 2004).
DISCUSSION
I. Outrageous Government Conduct
Outrageous government conduct occurs 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). Dismissing an indictment for outrageous government
14 UNITED STATES V. BLACK
conduct, however, is “limited to extreme cases” in which the
defendant can demonstrate that the government’s conduct
“violates fundamental fairness” and is “so grossly shocking
and so outrageous as to violate the universal sense of justice.”
Stinson, 647 F.3d at 1209 (internal quotation marks omitted).
This is an “extremely high standard.” United States v. Garza-
Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (quoting United
States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991)) (internal
quotation marks omitted). Indeed, there are only two
reported decisions in which federal appellate courts have
reversed convictions under this doctrine. See United States
v. Twigg, 588 F.2d 373 (3d Cir. 1978); Greene v. United
States, 454 F.2d 783 (9th Cir. 1971). See also State v. Lively,
921 P.2d 1035 (Wash. 1996) (reversing drug conviction under
state law, but relying on federal cases in finding outrageous
government conduct).
There is no bright line dictating when law enforcement
conduct crosses the line between acceptable and outrageous,
so “every case must be resolved on its own particular facts.”
United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986),
vacated in part on other grounds sub nom. United States v.
Wingender, 790 F.2d 802 (9th Cir. 1986) (order). In
assessing the reasonableness of various law enforcement
actions and tactics, however, we have set forth ground rules
that provide some guidance. For example, it is outrageous for
government agents to “engineer[] and direct[] a criminal
enterprise from start to finish,” United States v. Williams,
547 F.3d 1187, 1199 (9th Cir. 2008) (internal quotation marks
omitted), or for the government to use “excessive physical or
mental coercion” to convince an individual to commit a
crime, United States v. McClelland, 72 F.3d 717, 721 (9th
Cir. 1995). It is also outrageous for the government to
“generat[e] . . . new crimes merely for the sake of pressing
UNITED STATES V. BLACK 15
criminal charges.” United States v. Emmert, 829 F.2d 805,
812 (9th Cir. 1987). It is not outrageous, however, to
infiltrate a criminal organization, to approach individuals who
are already involved in or contemplating a criminal act, or to
provide necessary items to a conspiracy. See United States v.
So, 755 F.2d 1350, 1353 (9th Cir. 1985). Nor is it outrageous
for the government to “use ‘artifice and stratagem to ferret
out criminal activity.’” Bogart, 783 F.2d at 1438 (quoting
Sorrells v. United States, 287 U.S. 435, 441 (1932)).
The reverse sting employed here largely falls within the
bounds of law enforcement tactics that have been held
reasonable. Once presented with the fictitious stash house
robbery proposal, Simpson, Black (and, later, their cohorts)
readily and actively acted as willing participants with a
professed ability to carry out a dangerous armed robbery.
Nonetheless, there are two troubling aspects about this
fictional sting and how it came about in the first place.
First is the fiction itself. The crimes of conviction –
conspiracy to possess cocaine with intent to distribute and the
use of firearms in furtherance of drug trafficking – resulted
from an operation created and staged by ATF. Most of the
hard evidence against the defendants consisted of words used
at meetings Zayas set up with help from the CI. Zayas
invented the scenario, including the need for weapons and for
a crew, and the amount of cocaine involved. The only overt
actions by the defendants involved showing up at meetings,
including arriving at the parking lot with four hidden, loaded
weapons and then driving to the storage warehouse where
they were arrested. Although those actions clearly
corroborate the defendants’ intent to carry out an armed
robbery, defendants were responding to the government’s
script.
16 UNITED STATES V. BLACK
This leads to our second and major concern – how the
government recruited these defendants. ATF was not
infiltrating a suspected crew of home invasion robbers, or
seducing persons known to have actually engaged in such
criminal behavior. Rather, ATF found Simpson by “trolling
for targets.” Lively, 921 P.2d at 1046. The CI provocatively
cast his bait in places defined only by economic and social
conditions: “a bad part of town, a bad bar, you know . . . bars
where you’ve got . . . a lot of criminal activity.” 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,
a work of fiction spun out by government agents to persons
vulnerable to such a ploy who would not otherwise have
thought of doing such a robbery. See Bogart, 783 F.2d at
1436 (“Criminal sanction is not justified when the state
manufactures crimes that would otherwise not occur.
Punishing a defendant who commits a crime under such
circumstances is not needed to deter misconduct; absent the
government’s involvement, no crime would have been
committed.”). We have previously raised such concerns
about stash house reverse stings in addressing the issue of
sentencing entrapment:
In fictional stash house operations like the one
at issue here, the government has virtually
unfettered ability to inflate the amount of
drugs supposedly in the house and thereby
obtain a greater sentence for the defendant. In
fact, not only is the government free to set the
amount of drugs in a fictional stash house at
an arbitrarily high level, it can also minimize
the obstacles that a defendant must overcome
to obtain the drugs. The ease with which the
UNITED STATES V. BLACK 17
government can manipulate these factors
makes us wary of such operations in general,
and inclined to take a hard look to ensure that
the proposed stash-house robbery was within
the scope of Briggs’ ambition and means.
United States v. Briggs, 623 F.3d 724, 729–30 (9th Cir. 2010)
(citation omitted). For similar reasons, the initiation of this
sting warrants close scrutiny, and places a burden on the
government to show that our concerns are not borne out in
this case.
A. Factors Relevant to Outrageous Government
Conduct
Previous outrageous government conduct cases, viewed
collectively, have identified various 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
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. In this
case, the first three are most relevant to the way in which the
government set up the sting; the fourth and fifth look to the
propriety of the government’s ongoing role in the sting. The
last focuses on the justification for the particular law
enforcement strategy employed. These do not constitute a
18 UNITED STATES V. BLACK
formalistic checklist, but help focus our analysis of the
totality of circumstances.7
B. Government’s Initiation of the Reverse Sting
Individualized suspicion. The government need not have
individualized suspicion of a defendant’s wrongdoing before
conducting an undercover investigation. See United States v.
Luttrell, 923 F.2d 764, 764 (9th Cir. 1991) (en banc) (order).
Whether the government had reason to suspect an individual
or identifiable group before initiating a sting operation is an
important consideration, however. See, e.g., United States v.
Bonanno, 852 F.2d 434, 438 (9th Cir. 1988) (noting the
government did not recruit a CI to approach defendants until
an investigation revealed they were already involved in an
illegal scheme); United States v. Pemberton, 853 F.2d 730,
732 (9th Cir. 1988) (noting the reverse sting operation
targeted an individual it “suspected to be a long-time drug
dealer involved in the laundering operation”); United States
v. Stenberg, 803 F.2d 422, 430 (9th Cir. 1986) (“Agent Gavitt
met both Ellison and Fike only after his investigation
indicated they were already involved in continuing illegal
transactions involving wildlife.”), superseded by statute on
7
The parties cite a five-factor “test” from United States v. Bonanno,
852 F.2d 434, 437–38 (9th Cir. 1988) (citing Bogart, 783 F.2d at
1435–38). These factors have not been used consistently, however, nor
as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950
(9th Cir. 2003) (not citing or employing the Bonanno factors and instead
rejecting the defendants’ outrageous government conduct claim on the
more general principle that “the government did not initiate the criminal
activity, but rather sought to crack an ongoing operation”). Because we
are to resolve every case on its own particular facts, we take account of the
Bonanno factors in our analysis but only as part of our consideration of all
the circumstances as a whole.
UNITED STATES V. BLACK 19
other grounds as stated in United States v. Atkinson, 966 F.2d
1270, 1273 n.4 (9th Cir. 1992).
In some cases where the government did not suspect a
particular individual, it has focused on a category of persons
it had reason to believe were involved in the type of illegal
conduct being investigated. An example is Garza-Juarez,
992 F.2d 896, involving an investigation of illegal firearm
trafficking at swap meets. The government received a tip that
a Hispanic male at a swap meet near Casa Grande, Arizona,
had illegally sold an assault-type firearm. On that
information alone, an undercover agent went to the Casa
Grande swap meet looking for Hispanic males and came upon
the defendant, who appeared to be selling firearms in
numbers exceeding those of a professed “gun collector.” The
government then lured him into a faked sale of illegal
weapons. See id. at 899–900. See also Emmert, 829 F.2d at
812 (targeting student who attended a cocaine party as one
likely to know drug dealers); United States v. Bagnariol,
665 F.2d 877, 882 (9th Cir. 1981) (targeting politicians,
political operatives and persons in the gaming business in
investigation of political corruption).
Known criminal characteristics of defendants. Closely
related to the question of individualized suspicion is whether
a defendant had a criminal background or propensity the
government knew about when it initiated its sting operation.
See, e.g., Williams, 547 F.3d at 1200 (noting that before the
government suggested a stash house robbery, the defendant
was introduced to the government “as a middleman drug
dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.
2007) (“While Mayer points out there was no ongoing
criminal enterprise that the government was merely trying to
join, Mayer was certainly a willing and experienced
20 UNITED STATES V. BLACK
participant in similar activities [traveling internationally for
sex with boys].” (citation omitted)).
Government’s role in creating the crime. Also relevant
is whether the government approached the defendant initially
or the defendant approached a government agent, and
whether the government proposed the criminal enterprise or
merely attached itself to one that was already established and
ongoing. See Williams, 547 F.3d at 1200 (noting that
government merely persuaded the defendant to substitute a
stash house robbery for the planned bank robbery he had
initially proposed to the government agent); Mayer, 503 F.3d
at 747 (noting that the defendant was the first to broach the
subject of traveling internationally to have sex with boys);
United States v. Winslow, 962 F.2d 845, 849 (9th Cir. 1992)
(“At the time Valentino first targeted the appellants for
investigation, both Winslow and Nelson had already
expressed interest in blowing up establishments frequented by
homosexuals.”); United States v. Wiley, 794 F.2d 514, 516
(9th Cir. 1986) (“The drug distribution scheme between
defendant and Garbiso was in existence before the
government became involved; the government merely
activated it.”).
In the case before us, the government does not contend it
had any individualized suspicion of any of the defendants as
being involved in stash house robberies when it dispatched
the CI into the field to find persons willing to do such a
robbery. Rather, it knew nothing about them or their criminal
inclinations or experiences until the CI surfaced Simpson
through Curtis, a stranger at a bar. The only criterion the CI
used to select the bar was that it was in a “bad” area where
persons engaged in “criminal activity” were likely to gather.
This is a much wider net than we have seen in previous cases.
UNITED STATES V. BLACK 21
Moreover, the stash house robbery was entirely the ATF’s
creation, and it was Zayas who set the parameters for how it
had to be carried out. Thus as to the inception stage of this
sting, the argument for government overreaching has some
force.
Perhaps the most analogous case is Bagnariol, 665 F.2d
877.8 An FBI agent (Heald), as part of a two-year
8
The dissent points out that in most of our decisions rejecting claims of
outrageous government conduct the government targeted an existing
scheme or suspected an individual of wrongdoing before initiating the
sting operation. We agree with the dissent that the absence of those
conditions here supports the defendants’ outrageous government conduct
claim. In light of our precedent, however, we cannot say that this one
factor alone establishes a due process violation. In at least two cases, we
have rejected outrageous government conduct claims where, as here, the
government initiated a sting operation without targeting an existing
scheme or suspecting an individual of wrongdoing. In Bagnariol, the
government approached persons involved with lawful gambling
enterprises authorized under state law. See Bagnariol, 665 F.2d at
880–81. In United States v. Emmert, 829 F.2d 805 (9th Cir. 1987), a
confidential informant approached a college student about locating a
substantial supply of cocaine for a buyer in the area. The government had
no individualized suspicion of the college student as someone who was a
drug user or dealer. Rather, the investigators approached him merely
because they believed he attended a party at which cocaine was used and
he in turn led them to his college roommate, Emmert. See id. at 807, 812.
We found sufficient proof that Emmert was contemplating criminal
activity simply by his agreement to engage in the criminal activity
proposed by the government. See id. at 812 (“When the government
agents first targeted Emmert for investigation, he had expressed interest
in receiving a portion of the finder’s fee in exchange for brokering cocaine
supplied by Cioe. He was therefore contemplating criminal activity and
further investigation was appropriate.”). Here, although the initial
targeting of the defendants is troubling, it is counterbalanced by the
defendants’ enthusiastic readiness to participate in the stash house
robbery, by their representations that they had committed stash house
22 UNITED STATES V. BLACK
investigation into gambling and political corruption in the
state of Washington, posed as the head of a fictitious
corporation (So-Cal) interested in meeting politicians who,
for a substantial fee, would assure passage of legislation
expanding legalized cardroom gambling that So-Cal wanted
to control. Heald made his interests known to an existing
cardroom owner who in turn introduced him to a lobbyist and
secretary of the Cardroom Owners Association (Gallagher).
At Gallagher’s suggestion, Heald hired him as So-Cal’s
liaison with state politicians. After several meetings, Heald
agreed that Gallagher and two of his “powerful” political
“friends” (including the Speaker of the state House of
Representatives) would assure passage of the legislation, So-
Cal would control the expanded gambling business and
Gallagher’s group would get a percentage of the profits.
Gallagher introduced Heald to the two politicians, who
already knew about the arrangement and agreed to it.
Following their convictions under several federal anti-
corruption statutes, Gallagher and one of the politicians
argued that even if they were predisposed to commit the
crimes,9 the government’s initiation of the sting operation and
its active involvement thereafter constituted outrageous
government conduct. We acknowledged that the government
might have been “in some respects overzealous,” noting how
robberies in the past, by their independent role in planning the crime and
by the absence of government coercion or pressure.
9
That a defendant may have been predisposed to commit a stash house
robbery does not preclude a claim of outrageous government conduct,
which looks only to the actions of the government under an objective
standard. See McClelland, 72 F.3d at 721 n.1 (“[T]hat the defendant was
predisposed to commit a crime precludes a successful entrapment defense,
but not a government coercion claim or any other claim of outrageous
government conduct.”).
UNITED STATES V. BLACK 23
the FBI had connected with Gallagher: “The government set
Heald up as ‘bait’ by spreading word generally that So-Cal
was interested in promoting gambling legislation and in
meeting politicians who shared that interest. This tactic led
Heald to Gallagh er, who volunteered the services of [the
Speaker and the second politician].” Id. at 882–83.
The government had created the fictional scheme, made
the initial contact with persons not known to be actually
involved in corrupt political activities, but by baiting a pool
of potential candidates for a bribe surfaced these defendants.
Any qualms we had about this tactic were mitigated,
however, because, “[o]nce the government had set its bait,
appellants responded without further inducement by the
government.” Id. at 882.
Here, too, the government created the proposed crime,
initiated contact with the defendants through the CI’s
approach to Curtis at the Glendale bar, and set the bait – all
without any previous individualized suspicion – or even
knowledge – about the defendants’ criminal history or
activities. It went beyond the government’s more nuanced
approach in Bagnariol of targeting people actually known to
be involved in gambling and politics, creating a fictitious
corporation the crooked politicians could approach with their
own illicit scheme to pass a favorable gambling bill. Here the
government tried to recruit from a more generalized
population, and for a robbery of the government’s design. In
these respects, the government’s role in creating the crime of
conviction was quite strong, raising concerns that it sought to
manufacture a crime that would not have otherwise occurred.
Nonetheless, our concerns are mitigated to a large degree
because Simpson – and, shortly after, Black – told Zayas very
24 UNITED STATES V. BLACK
early and often that they had engaged in similar criminal
activity in the past, in conversations that were recorded on
tape. Simpson represented at the very first meeting with
Zayas that he had both the experience and the connections
necessary to carry out another such robbery with his “goons.”
He bragged that he had been convicted of four felonies and
17 misdemeanors, all involving drugs or guns, while Black
said he had “just” performed a stash house robbery, had done
so several times and had stash house robberies “down to a
science.”10 Therefore, even though it weighs in the
defendants’ favor that the government had no knowledge of
any past criminal conduct by any of the defendants when the
CI brought Simpson to the first meeting with Zayas,
Simpson’s and Black’s repeated representations that they had
engaged in related criminal activity in the past quickly
supplied reasons to suspect they were likely to get involved
in stash house robberies.11 Moreover, our review of the
10
The defendants emphasize that by these statements they were merely
“puffing,” but the government was entitled to rely on the defendants’
representations of their past criminal conduct. Citing the defendants’
presentence reports, the dissent points out that none of the defendants had
previously been arrested or convicted for committing stash house
robberies. Law enforcement agents, however, did not have the benefit of
those reports at the time of the sting. Rather, the agents reasonably relied
on the defendants’ own, credible representations that they had committed
these robberies in the past. In any event, the presentence reports do not
prove that the defendants had not committed stash house robberies in the
past; the defendants could have committed these crimes without being
caught. As the dissent acknowledges, the presentence reports include a
number of drug-related and robbery convictions. Those offenses are
consistent with a person’s involvement in stash house robberies.
11
We decline to examine the pertinent factors with respect to each
individual defendant separately, as the defendants seem to advocate. The
question before us is whether the government’s conduct was outrageous
in conducting this criminal investigation. As long as the government’s
UNITED STATES V. BLACK 25
record persuades us that once Zayas set his bait, the
defendants “responded without further inducement by the
government.” Bagnariol, 665 F.2d at 882 (emphasis added).
Instead, they responded with enthusiasm. They were eager to
commit the fictional stash house robbery, and they joined the
conspiracy without any great inducement or pressure from the
government. Indeed, the defendants before us in this appeal
were recruited by other defendants, not by Agent Zayas or the
CI. We therefore turn to our review of the government’s
conduct once the sting got underway.
C. Government’s Post-Initiation Conduct
In reviewing the government’s conduct once defendants
agreed to the scheme and began its implementation, we are
satisfied that there is no significant evidence of government
overreaching or coercion – significant factors in determining
whether the government acted outrageously.
Government’s encouragement of defendants. The extent
to which the government encouraged a defendant to
participate in the charged conduct is important, with mere
investigation was initiated and performed tolerably with respect to the
operation as a whole, it would undermine law enforcement’s ability to
investigate and apprehend criminals if its otherwise acceptable conduct
became outrageous merely because an individual with no known criminal
history whom the government did not suspect of criminal activity joined
the criminal enterprise at the last minute at the behest of codefendants. Cf.
United States v. Thickstun, 110 F.3d 1394, 1399 (9th Cir. 1997)
(discussing our rejection of derivative entrapment). If there were evidence
that the government purposely and unnecessarily coerced additional
individuals to join the operation (as opposed to those individuals joining
at the behest of coconspirators), then an individualized approach may be
warranted, but there is no evidence of that occurring here.
26 UNITED STATES V. BLACK
encouragement being of lesser concern than pressure or
coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no
evidence in the record that any coercive relationship existed
between Mayer and Hamer.”); McClelland, 72 F.3d at 721
(rejecting outrageous government conduct claim but noting
that the government agent “did encourage McClelland at
various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th
Cir. 1986) (“While there is no evidence that Shaw had dealt
in food stamps before, once they were available he purchased
them willingly and without pressure.”).
There is little evidence of government coercion or
pressure here. Simpson testified that he felt pressure from
Agent Zayas urging him “to do something real quick” in
putting a team together and planning the robbery; and the
compressed time line of the operation and Zayas’ comments
implying that Black and Simpson should involve more
individuals may have placed subtle pressure on defendants to
put a team together and quickly plan the details of the
robbery. But there is no evidence that the government
engaged in inappropriate activity, threats or coercion to
encourage defendants to engage in the robbery. Instead, the
government proposed the stash house robbery, and the
defendants eagerly jumped at the opportunity.
Government’s participation in the crime. We have also
considered various aspects of the government’s participation
in the offense conduct as relevant. The duration of the
government’s participation in a criminal enterprise is
significant, with participation of longer duration being of
greater concern than intermittent or short-term government
involvement. See Greene, 454 F.2d at 786 (finding
outrageous government conduct where the government’s
participation “was of extremely long duration, lasting” about
UNITED STATES V. BLACK 27
three years). We have also looked to the nature of the
government’s participation – whether the government acted
as a partner in the criminal activity, or more as an observer of
the defendant’s criminal conduct – including any particularly
offensive conduct taken by the government during the course
of the operation. See Williams, 547 F.3d at 1201 n.11 (noting
that the government did not engineer the operation given that
the defendant “hatched the bank robbery scheme entirely on
his own, . . . participated in the planning stages of the stash
house robbery[,] . . . arranged for his crew to help him,
including instructing Hollingsworth to bring a gun and a
police scanner to the motel[ and] . . . sold weapons to raise
money to rent the car for the robbery”); Stenberg, 803 F.2d at
431 (“Here, the government agent was not a passive
participant or simply a purchaser or transmitter of contraband
otherwise destined for the market place. To the contrary, he
himself was the perpetrator of the most serious offenses
involved – the actual killing of protected wildlife. Under
different circumstances such active criminal behavior by a
government agent might well result in our upholding a
defense of outrageous government conduct.”); So, 755 F.2d
at 1353–54 (rejecting outrageous government conduct claim
where a defendant provided the “creative inspiration” and
technical arrangements for the money laundering scheme and
the government merely provided “the funds and opportunity
to launder money”). Finally, courts have examined the
necessity of the government’s participation in the criminal
enterprise – whether the defendants would have had the
technical expertise or resources necessary to commit such a
crime without the government’s intervention. See, e.g.,
United States v. Twigg, 588 F.2d 373, 380–81 (3d Cir. 1978)
(reversing conviction where the government “was completely
in charge and furnished all of the laboratory expertise” and
28 UNITED STATES V. BLACK
“[n]either defendant had the know-how with which to
actually manufacture methamphetamine”).
Here, although the government took the initiative of
approaching the defendants and proposing the fictitious stash
house robbery, thereafter it played a minimal role in the
crime. Agent Zayas provided no weapons, plans, manpower
or direction about how to perform the robbery, even when the
defendants sought his advice. The nature of the government’s
involvement therefore is in stark contrast to the government’s
role in cases like Twigg and Greene, in which the government
provided difficult-to-obtain and necessary materials for
criminal activity. See Twigg, 588 F.2d at 380 (“The
Government gratuitously supplied . . . the indispensable
ingredient, phenyl-2-propanone. It is unclear whether the
parties had the means or the money to obtain the chemical on
their own.”); Greene, 454 F.2d at 786 (noting that the
government “offered to provide a still, a still site, still
equipment, and an operator” and “provided two thousand
pounds of sugar at wholesale”).
D. Nature of Crime Being Investigated
Finally, we have considered the need for the investigative
technique that was used in light of the challenges of
investigating and prosecuting the type of crime being
investigated. For example, in Emmert, 829 F.2d at 812, we
concluded that the government’s offer of a $200,000 finder’s
fee inducement during an investigation was not outrageous
because “large sums of money are common to narcotics
enterprises and necessary to create a credible cover for
undercover agents.” Similarly, in Wiley, 794 F.2d at 515, we
approved of the government’s activation of a prison
smuggling scheme “[g]iven the difficulties of penetrating
UNITED STATES V. BLACK 29
contraband networks in prisons.” See also Twigg, 588 F.2d
at 378 n.6 (“[I]n evaluating whether government conduct is
outrageous, the court must consider the nature of the crime
and the tools available to law enforcement agencies to combat
it.”).
As the district court noted, stash house robberies are
largely unreported crimes that pose a great risk of violence in
residential communities. The court permissibly credited
Agent Zayas’ testimony that many home invasions related to
drug deals involve disputes between rival gangs, and trying
to arrest one gang in the act of robbing another can lead to
shoot-outs and hostage taking. The reverse sting tactic was
designed to avoid these risks to the public and law
enforcement officers by creating a controlled scenario that
unfolds enough to capture persons willing to commit such an
armed robbery without taking the final step of an actual home
invasion. That said, the risks we have identified in such a
government-created fictional operation are not to be taken
lightly. The government does not have free license to forgo
reasonable alternative investigative techniques of identifying
and targeting potential suspects before approaching them.
And because the operation is fake, we must remain vigilant
that the government does more than set the “bait” and create
criminal convictions by outrageous means. We emphasize
that in this case, the existence of tape and video recordings to
prove what was actually said and done has weighed heavily
in our review of the record. We would be faced with a much
different case if all we had to rely on was the credibility of
the conflicting after-the-fact testimony of the government and
defense witnesses.
***
30 UNITED STATES V. BLACK
“Law enforcement conduct becomes constitutionally
unacceptable where government agents engineer and direct
the criminal enterprise from start to finish. Generation of
new crimes merely for the sake of pressing criminal charges
against the defendant also constitutes outrageous
government,” at least “where the government essentially
manufactured the crime.” Emmert, 829 F.2d at 812–13
(emphasis added) (citations and internal quotation marks
omitted). Nearly three decades ago, we acknowledged that it
is difficult to discern “[t]he point of division at the margins
between police conduct that is just acceptable and that which
goes a fraction too far.” Bogart, 783 F.2d at 1438. That
remains true today. We, however, are satisfied the
government did not cross the line here.12 We cannot say that
the government’s conduct was “so grossly shocking and so
outrageous as to violate the universal sense of justice.”
Stinson, 647 F.3d at 1209.13
12
We reject Black’s argument that the district court erred in failing to
use its supervisory power to dismiss the indictment. Because this
argument was not raised before the district court, we review for plain
error, and Black advances no argument why any error was plain. As
discussed, the government did not violate the defendants’ recognized
rights or engage in illegal conduct that must be deterred, nor is there any
evidence that the jury’s verdict rested on inappropriate considerations.
See United States v. Ramirez, 710 F.2d 535, 541 (9th Cir. 1983)
(articulating grounds for exercising supervisory power to dismiss
indictment).
13
Our dissenting colleague raises compelling concerns about the risks
of government overreaching inherent in fictitious stash house sting
operations. We respectfully disagree that, in view of existing precedents
and the record in this case, we can hold the government to have acted
outrageously here.
UNITED STATES V. BLACK 31
II. Sentencing Entrapment
The defendants also contend that the reverse sting
scenario employed an amount of cocaine designed to place
the defendants above the amount triggering the statutory
minimum sentence of 10 years for conspiracy to possess
cocaine with intent to distribute. Sentencing entrapment is an
available defense in fictitious stash house reverse sting
operations and, as noted at the outset of this opinion, we have
cautioned about the risk of the government’s manipulating the
sting operation and drug amount to increase the defendant’s
penalty. See United States v. Briggs, 623 F.3d 724, 729–30
(9th Cir. 2010).
“Sentencing entrapment occurs when a defendant is
predisposed to commit a lesser crime, but is entrapped by the
government into committing a crime subject to more severe
punishment.” United States v. Mejia, 559 F.3d 1113, 1118
(9th Cir. 2009). Sentencing entrapment usually arises in the
context of drug transaction crimes, whereby the government
pressures a defendant to purchase or sell more drugs than he
otherwise would, for the purpose of increasing the applicable
sentence. See, e.g., United States v. Staufer, 38 F.3d 1103,
1108 (9th Cir. 1994). In the context of a fictional drug stash
house robbery, a defendant can show sentencing entrapment
by demonstrating that he lacked predisposition – either
through a lack of intent or a lack of capability – to conspire
with others to take by force the amount of cocaine charged.
See United States v. Yuman-Hernandez, 712 F.3d 471, 475
(9th Cir. 2013). The defendant has the burden of proving
sentencing entrapment by a preponderance of the evidence.
See id. at 473–74. If the defendant succeeds, the district court
may exclude from its drug quantity calculation the extra
amount caused by the government’s entrapment. See United
32 UNITED STATES V. BLACK
States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995).
Sentencing entrapment thus permits a downward departure
for purposes of calculating the base offense level under the
Sentencing Guidelines; it also permits a court to sentence a
defendant below the otherwise-applicable mandatory
minimum where the newly calculated drug quantity falls
below the amount triggering a mandatory minimum.
At sentencing, the defendants all asserted sentencing
entrapment and encouraged the court to lower the amount of
cocaine used to determine the base offense level (below the
level 34 otherwise applicable under U.S. Sentencing
Guidelines Manual (U.S.S.G.) § 2D1.1) and that governs the
application of the mandatory minimum on count one.14 In
rejecting the defendants’ argument, the district court made the
following factual findings:
• The defendants agreed to participate in this crime for
the purpose of making a profit.
• The defendants did not show any reluctance about
participating in the crime.
• The government’s inducement was not overly
burdensome.
• The government suggested the criminal activity.
14
The 10-year mandatory minimum of 21 U.S.C. § 841(b), applicable
to defendants’ § 846 conspiracy conviction, applies when 5 kilograms or
more of cocaine are involved.
UNITED STATES V. BLACK 33
• The defendants were “unable to demonstrate that they
were predisposed to steal less than the 23 kilograms
agents told them was at the stash house.”
• The defendants were able to organize and plan and
came within minutes of actually attempting to commit
the home invasion, and they had the capacity to do so.
• There is no evidence suggesting that the government
acted improperly in inflating the quantity of drugs in
the stash house. Instead, the amount reflected the
amount of drugs normally found at stash houses in the
area.
• The government did not minimize the obstacles or
make the robbery overly easy. It involved an armed
robbery, during the daytime, of a stash house guarded
by armed men.
The district court concluded that none of the defendants
met his burden of proving lack of predisposition and declined
to reduce the amount of drugs used in calculating his base
offense level as permitted by Application Notes 12 and 14 of
U.S.S.G. § 2D1.1 (now Application Notes 5 and 26(A)) and
Naranjo, 52 F.3d at 250. The district court also declined to
depart downward under U.S.S.G. § 5K2.12, which permits a
downward departure if a defendant can demonstrate that he
committed the charged offense due to coercion not amounting
to a complete defense. The court found that “other than
presenting the scenario to them, the Government did not take
any actions to induce these defendants’ participation” and that
“other than the hurried nature of the operation,” there was no
pressure or coercion by the government.
34 UNITED STATES V. BLACK
Black, Mahon and Timmons argue on appeal that the
district court erred in rejecting their sentencing entrapment
arguments. They first argue that they adequately proved a
lack of predisposition, because they had no prior convictions
for robbery or drug trafficking, nor did they own guns. The
district court properly rejected this argument in light of its
findings that the defendants showed no reluctance about
participating in the crime, the government did not induce the
defendants’ participation in the fictitious robbery but simply
presented the opportunity to them, and the defendants jumped
at the opportunity to rob a stash house supposedly containing
23 or more kilograms of cocaine for purposes of making a
profit. Accordingly, they have not shown that they lacked the
intent or capability of taking 22–39 kilograms of cocaine by
force. See Yuman-Hernandez, 712 F.3d at 475.
Alternatively, the defendants argue that even if they may
have been predisposed to commit a crime of lesser
magnitude, the government induced them to commit a greater
crime subject to greater punishment. They fail to explain
how the district court’s detailed factual findings to the
contrary are clearly erroneous, nor do they explain how, in
light of these factual findings, the district court abused its
discretion by declining to lower the amount of cocaine used
to determine the base offense level and mandatory minimum
on count one. See id. at 473–74; Mejia, 559 F.3d at 1118.
Importantly, neither of the policy concerns noted in
Briggs is present here. The amount of cocaine selected for
the robbery scenario was based on a review of the amounts of
drugs used in stash houses in the Phoenix area. Thus, there
is no evidence that the government acted to “inflate the
amount of drugs supposedly in the house and thereby obtain
a greater sentence for the defendant[s].” Briggs, 623 F.3d at
UNITED STATES V. BLACK 35
729. There is also no evidence that the government
“minimize[d] the obstacles that [the] defendant[s had to]
overcome to obtain the drugs.” Id. at 730. As the district
court found, Agent Zayas proposed a particularly dangerous
robbery, which was to take place during daylight hours at a
stash house guarded by armed men.
In any event, any error was harmless. The district court,
having rejected the sentencing entrapment defense,
nonetheless, at the government’s suggestion, departed
downward under U.S.S.G. § 5K2.0(a)(2) from a base offense
level of 34 to a base offense level of 32. The court did so
because it found that although the defendants were willing to
commit this crime for the 23 or more kilograms of cocaine
purported to be in the stash house (corresponding to a base
offense level of 34), they likely would have committed the
crime for an amount between 5 and 15 kilograms, which
corresponds to a base offense level of 32.15 It declined to
depart further, however, finding that the defendants would not
have been willing to risk their lives and take the risk of an
armed robbery for fewer than 5 kilograms. Given this
finding, even if the district court had concluded that the
defendants established sentencing entrapment, the applicable
base offense level still would have been 32, and the court
would have had no discretion to sentence defendants below
the 10-year mandatory minimum. See 21 U.S.C. §§ 841, 846.
15
The court explained: “The Government requested at the last hearing
that the Court give a downward departure of two levels that would be
consistent with the five to 15 kilogram range. [Counsel for the
government] explained that the Government wanted to make it clear it was
never trying to artificially inflate the range. And I indicated then, and I
want to restate it now, that I appreciate the Government’s sensitivity to
this subject and agree that a departure is warranted under Section
5K2.0(a)(2).”
36 UNITED STATES V. BLACK
In sum, the district court properly rejected Black,
Timmons and Mahon’s sentencing entrapment arguments.
Any error would not have affected their sentences.
CONCLUSION
The district court properly denied the defendants’ motion
to dismiss the indictment for outrageous government conduct
and did not abuse its discretion in rejecting the defendants’
sentencing entrapment arguments. We therefore affirm the
defendants’ convictions and sentences.
AFFIRMED.
NOONAN, Circuit Judge, dissenting:
“Lead us not into temptation” is part of a prayer familiar
to many. But few, I believe, would think of this prayer as
addressed to the government of the United States or would
think it necessary to address the government with such a
request. The present case creates a precedent and sets a
framework in which such a prayer addressed to the
government becomes comprehensible and probable. Today
our court gives our approval to the government tempting
persons in the population at large currently engaged in
innocent activity and leading them into the commission of a
serious crime, which the government will then prosecute.
The government of the United States paid a confidential
informant (CI) $100 a day to recruit random persons willing
to rob a cocaine stash house. Brought from Miami to Phoenix
by Agent Richard Zayas of the Bureau of Alcohol, Tobacco,
UNITED STATES V. BLACK 37
Firearms, and Explosives (ATF), the CI testified that he went
to bars in “a bad part of town” and that he was not instructed
to look for particular individuals who were already involved
in an ongoing criminal operation, but simply to recruit anyone
who showed an interest in his conversation.
The CI described his modus operandi in these words:
Q. All right. And in your efforts to recruit
these robbers, what instructions, what
specific instructions were you given by
Agent Zayas?
A. What instructions? Just to go out and, you
know, say – just trying to see what I can
meet back – you know, meet people.
Meet people, see if they know bad guys,
you know.
Q. Anyone off the street. Is that basically it?
A. Pretty much. No, not – yeah. I mean,
yeah, I go to the bars.
Q. Right. Now, how do you determine if a
person is a bad person without knowing
them or without observing them being
engaged in a crime?
A. Well, it’s hard to determine.
...
38 UNITED STATES V. BLACK
Q. Does [Agent Zayas] tell you [to] look only
for persons who you know are about to
commit a crime?
A. No.
Q. No. And, in fact, you have approached
people at restaurants randomly and have
raised potential criminal activity, have
you not?
A. Yes.
The CI selected a seedy bar as a fit place to troll and then
trolled for potential defendants. After several tries, the CI
was introduced to Simpson, who expressed an interest. The
CI brought Simpson to Zayas, who himself was undercover,
posing as a former courier of a Mexican drug ring anxious to
be revenged on his former associates. Zayas told Simpson of
a stash house where once a month there was cocaine awaiting
transportation. In a second meeting with Zayas twelve days
later, Simpson introduced Black as a recruit to the robbery,
adding that no more men would be needed. Zayas suggested
Simpson would need more help, and the others agreed to one
more. At a third meeting with Zayas, Simpson, and Black,
three more persons were recruited. The next day, Timmons
appeared for the first time as the driver. Simpson did not
show up, afraid that he was under surveillance. Zayas told
the men that he had rented a warehouse to store his portion of
the cocaine and asked them to follow him there. Upon
reaching the warehouse, the men were arrested by federal
agents. Simpson was arrested three months later.
UNITED STATES V. BLACK 39
These facts are not disputed. They establish that Zayas
and the CI, acting for the ATF, recruited Simpson to rob the
stash house and that Zayas encouraged Simpson to increase
the number of robbers; that all of the defendants were
informed of the plan to rob a stash house; that unknown to
them, the stash house itself did not exist; and that Zayas
proposed its robbery as the purpose of the plan. From the
start when the CI contacted Simpson to the end when Zayas
told the crew to follow him to the warehouse, the agents of
the government wrote the crime-script and conducted the
defendants in the execution of it.
The opinion of the majority does not hesitate to say,
“Moreover, the stash house robbery was entirely the ATF’s
creation, and it was Zayas who set the parameters for how it
had to be carried out.” Op. at 21. The crimes of conviction,
the opinion states, “resulted from an operation created and
staged by ATF . . . . Zayas invented the scenario including the
need for weapons and for a crew, and the amount of cocaine
involved.” Id. at 15. As the majority acknowledges, the
government had no particular information about the
defendants that would have made them plausible targets of an
investigation. There was a “risk inherent,” the majority
agrees, “that the government could create a criminal
enterprise that would not have come into being but for the
temptation of a big payday, a work of fiction spun out by
government agents to persons vulnerable to such a ploy who
would not otherwise have thought of doing such a robbery.”
Id. at 16.
The majority opinion does not give full weight to Zayas’s
suggesting an increase in the numbers of the conspirators nor
to Zayas’s directing the conspirators to the location of the
imaginary stash house. These omissions apart, the majority
40 UNITED STATES V. BLACK
opinion lays out in convincing detail how, from beginning to
end, the government wrote the script, found those who would
act in it, and brought its dupes together so that they could be
arrested.
The majority opinion shifts its ground to argue that
precedent justifies its absolution of the ATF. The majority
finds “the most analogous case” to be United States v.
Bagnariol, 665 F.2d 877 (9th Cir. 1981). Op. at 21. The
majority opinion relies on Bagnariol to show that the
government may trap persons not currently engaged in crime.
But in that case in proving that the defendants had violated
RICO, the government showed that they were part of an
“enterprise” for the purpose of “legalizing and controlling
certain unlawful gambling . . . all through acts involving
extortion, bribery, mail fraud . . . .” Bagnariol, 665 F.2d at
891 (quotation marks omitted). These criminal acts were
charged as acts the defendants were currently engaged in.
The court concluded: “The government adequately proved
these activities.” Id. The defendants were not convicted or
punished for past lawful activities.
The majority finds its concerns “mitigated to a large
degree” by the claims of Simpson and Black that they had
engaged in similar criminal activity in the past. Op. at 23–24.
With this argument, the majority opens a new ground for the
government to justify setting up a defendant. Taking Black
and Simpson’s boasts as true, why do the boasts make the
boasters fair game for a government ploy? In fact, the
presentence reports on these defendants in this case show no
stash house activity by either of them. In the population of
this country, there is an indefinite number of persons who
dream of clever and unlawful schemes to make money. Does
their dreamy amorality cast them all as fit candidates for a
UNITED STATES V. BLACK 41
sting by their government? Depraved as a person’s
imagination and hopes may be, what is imagined and hoped
are not the subjects of criminal justice. The majority’s
rationale for permitting the government to tempt the general
population to crime imposes no limits upon the imagination
of agents of the government.
Besides Bagnariol, the government searches among its
previous stings to find a precedent for what the government
did here. The search has not been productive. The
government cites cases where the defendants asserted a
defense of outrageous government conduct and failed to
establish the defense. In United States v. Stenberg, 803 F.2d
422 (9th Cir. 1986), the defendants were already engaged in
the type of illegal transactions the government sought to shut
down, id. at 430. In United States v. Bonanno, 852 F.2d 434(9th Cir. 1988), the defendants were already involved in an
illegal purchase order scheme, id. at 438. In United States v.
Pemberton, 853 F.2d 730 (9th Cir. 1988), the defendant was
a long-time drug dealer already involved in money
laundering, id. at 732. In United States v. Garza-Juarez,
992 F.2d 896 (9th Cir. 1993), the defendants were already
known to take part in a pre-existing illegal firearm trafficking
scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944(9th Cir. 2003), one of the largest undercover operations in
history, the defendants were already part of a massive money
laundering scheme in which Mexican banks laundered money
to various drug cartels, id. at 948. In United States v.
Williams, 547 F.3d 1187 (9th Cir. 2008), the defendant was
already wanted for a prior bank robbery; had engaged in
several drug deals with a government informant; and had
planned his second bank robbery in detail and on his own
accord, going so far as to identify a target bank and recruit
someone on the inside of the bank to help. It was only after
42 UNITED STATES V. BLACK
the defendant enlisted a government informant to be his
getaway driver that the ATF pitched the fictitious drug stash
house as a safer alternative to robbing a bank. Id. at 1192. In
each of these cases, the government targeted an existing
scheme or suspected an individual of wrongdoing before
initiating a sting operation.
An Alternative Approach
The majority opinion scarcely offers an explanation for
why it has declined to use the Bonanno test. The test is good
law. Under the Bonanno test, the government’s conduct is
not outrageous when:
(1) the defendant was already involved in a
continuing series of similar crimes, or the
charged criminal enterprise was already in
progress at the time the government agent
became involved; (2) the agent’s participation
was not necessary to enable the defendants to
continue the criminal activity; (3) the agent
used artifice and stratagem to ferret out
criminal activity; (4) the agent infiltrated a
criminal organization; and (5) the agent
approached persons already contemplating or
engaged in criminal activity.
Williams, 547 F.3d at 1199–1200 (quoting Bonanno, 852 F.2d
at 437–48 and evaluating whether the government’s conduct
is outrageous by methodically considering each of the five
factors). The origin of the test lay in United States v. Bogart,
783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom.
United States v. Wingender, 890 F.2d 802 (9th Cir. 1986).
Systematically evaluating a number of outrageous
UNITED STATES V. BLACK 43
government conduct cases, Bogart concluded that
“constitutionally unacceptable” are cases where the “crime is
fabricated entirely by the police to secure the defendant’s
conviction rather than to protect the public from the
defendant’s continuing criminal behavior.” Id. at 1438.
The majority opinion concedes that the government here
fails the first, fourth, and fifth factors of the Bonanno test.
Op. at 18–25. It is undisputed that the defendants were not
involved in a continuing series of similar crimes or a criminal
enterprise already in progress; that the agents did not infiltrate
a criminal organization; and the agents did not approach
persons already contemplating or engaged in criminal
activity.
The cases that decline to use the Bonanno test articulate
a guiding principle. In United States v. Gurolla, 333 F.3d 944(9th Cir. 2003), for instance, a case that the majority notes as
declining to use the Bonanno test, see Op. at 18 n.7, this court
stated that our lodestar in determining whether the
government conduct is outrageous is whether “the
government did not initiate the criminal activity, but rather
sought to crack an ongoing operation,” Gurolla, 333 F.3d at
950. Plainly, no ongoing operation existed here. Plainly the
government here did initiate the criminal activity.
The majority declares that its “concerns that [the
government] sought to manufacture a crime that would not
have otherwise occurred” are “mitigated to a large degree.”
Op. at 23–24. This mitigation is due to Simpson and Black
telling Zayas that they had done similar stash house robberies.
These repeated assurances “quickly supplied,” the majority
says, “reasons to suspect they were likely to get involved in
stash house robberies.” Id. at 24.
44 UNITED STATES V. BLACK
Nothing in the presentence reports on Black and Simpson
shows that they had ever engaged in a stash house robbery.
At least as far as the government knew, they were simply
boasting. For the government agents to believe the boasts
may have been reasonable. But the boasts did not show them
to be currently engaged in this kind of crime. As far as the
government agents knew or believed, Black and Simpson
were neither committing a crime nor engaged in planning a
crime.
According to the presentence reports on the defendants
submitted by the government, Black as an adult of 18 had
been convicted of auto theft and at age 23 had been sentenced
to 90 days in jail for bank robbery. His criminal history
points totaled 7. Mahon as an adult of 21 had been convicted
of criminal possession of a weapon and sentenced to six
months in jail and had at age 24 been sentenced to six months
for possessing marijuana, with criminal history points totaling
5. Alexander as an adult was fined three times for driving on
a suspended license. His criminal points totaled zero.
Timmons at age 15 was convicted as an adult for robbery in
taking another person’s automobile by force, sentenced to jail
for 5 months, and thereafter returned to jail on several
occasions for violation of probation. He also has several
domestic violence convictions, and he twice has been
convicted of the felony of possessing marijuana. His criminal
history points totaled 16.
No federal crimes are attributed to any of these four
defendants. One defendant has no criminal history points in
his record. Another has only five. Even Timmons’ more
checkered past reflects no major criminal activity. Nothing
the government knew and nothing that the government later
UNITED STATES V. BLACK 45
discovered about their past showed that the defendants were
ready to rob a stash house.
The Amount Of Drugs Was Invented By The ATF
More than 600 persons have been prosecuted for
attempting to rob stash houses which were fictitious. See
Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare
Suspects, USA Today, June 28, 2013, at 1A. According to
ATF’s special operations chief, the sentence that the ATF
seeks is fifteen years. Id.
Our court has voiced concerns at least twice over the
government’s “unfettered ability” to set the sentence by
inflating the fictitious amount of drugs in the fictitious drug
house: United States v. Yuman-Hernandez, 712 F.3d 471, 474
(9th Cir. 2013); United States v. Briggs, 623 F.3d 724,
729–30 (9th Cir. 2010). See also United States v. Caban,
173 F.3d 89, 93 (2d Cir. 1999). In none of these cases have
the courts disapproved the government’s power.
Fictitious stash house stings “are a disreputable tactic,”
Judge Posner has written, because “[l]aw enforcement uses
them to increase the amount of drugs that can be attributed to
the persons stung, so as to jack up their sentences.” United
States v. Kindle, 698 F.3d 401, 414 (7th Cir. 2012) (Posner,
J., dissenting), cert. denied, 133 S. Ct. 1743 (2013), reheard
en banc sub nom. United States v. Mayfield (7th Cir. Apr. 16,
2013).
Judge Posner observes:
And now consider the role of such stings in
the “war on drugs.” Are they likely to reduce
46 UNITED STATES V. BLACK
the sale and use of illegal drugs? No; they are
likely to have the opposite effect. Stash house
robbers do not increase the amount of drugs in
circulation, since they steal their drugs instead
of making or importing them. The effect of a
fictitious stash house sting, when the person
stung is, unlike [Defendant], a real stash
house robber, is therefore to make stash
houses more secure by reducing the likelihood
of their being robbed. A sting both eliminates
one potential stash house robber . . . and
deters other criminals from joining stash
house robberies, since they may turn out to be
stings. The greater security that fictitious
stash house stings confer on real stash
houses—security obtained at no cost to the
operators of stash houses—reduces their cost
of self-protection, which is a principal cost of
the illegal-drug business. The lower a
business’s costs, the lower the prices charged
consumers, and so the greater the demand for
illegal drugs and the more sales and
consumption of them. The operators of stash
houses would pay law enforcement to sting
potential stash house robbers.
Id. at 416.
Not only are Judge Posner’s observations well taken, it is
a denial of due process for sentences to be at the arbitrary
discretion of the ATF. The agency creating the fictitious
stash house can place any amount of imaginary drugs within
it. The amount must, no doubt, be plausible; this limit aside,
the ATF may make the object of the robbery as large as it
UNITED STATES V. BLACK 47
chooses, thereby effectively choosing the criminal penalties
the defendants will incur. The ATF has free rein to amplify
these penalties and influence the number of defendants by, as
in our case, inventing armed guardians of the imaginary
drugs. In other cases, nothing stops the government from
filing additional charges and obtaining sentencing
enhancements where the defendants, at the government’s
insistence, are found carrying explosives, body armor, or
machine guns.
Conclusion
To sum up, use of an imaginary stash house has no effect
on the actual circulation of illegal drugs but may make actual
stash houses more secure; the imaginary stash house also
gives the government essentially unchecked power to
increase the number of persons drawn in as robbers by
supplying the number of imaginary guards for the drugs and
by supplying the amount of imaginary drugs that are
supposed to be present. The power exercised by the
government is not only to orchestrate the crime but to control
and expand those guilty of it. I do not see how this power can
be rationally exercised. No standard exists to determine the
limits of the government’s discretion.
The four defendants were a portion of the population of
Phoenix unknown by the government to harbor any specific
criminal plans. Never in their past had they been convicted
of a crime of such proportions or a federal crime of any kind.
They were inveigled by the ATF to agree to commit a crime
which in fact was impossible to commit because the stash
house they agreed to rob did not exist. Besides providing this
imaginary target for their crime, the ATF brought the CI from
Miami to recruit them, fed them Zayas’s cover story as to his
48 UNITED STATES V. BLACK
own motivation, told them of the target to be robbed with
detail as to its contents and guards, coached them as to the
number of persons needed for the job, and directed them to
where they would be arrested. The ATF wrote the script, cast
the defendants as the actors, and directed the action to its
denouement.
The United States has enormous resources that could be
used to tempt and trap criminals. If these resources are
deployed to bring an ongoing criminal enterprise to justice,
the country is well served. If these resources are deployed to
fire the imaginations of dreamers of easy wealth and turn
them to conspiring to commit a crime, our government has
been the oppressor of its people.
Massively involved in the manufacture of the crime, the
ATF’s actions constitute conduct disgraceful to the federal
government. It is not a function of our government to entice
into criminal activity unsuspecting people engaged in lawful
conduct; not a function to invent a fiction in order to bait a
trap for the innocent; not a function to collect conspirators to
carry out a script written by the government. As the
executive branch of our government has failed to disavow
this conduct, it becomes the duty of the judicial branch to
refuse to accept these actions as legitimate elements of a
criminal case in a federal court.