by Dana M. Grimes, Esq.
Trickery is not Entrapment
ATF agents in Phoenix paid a confidential informant to find potential armed robbers, and offered them the opportunity rob a stash house. The plan involved overcoming armed guards to steal a large amount of cocaine. The catch was something out of a Joseph Heller novel – there were no armed guards, there was no stash house, and there was no cocaine, but when the defendants agreed to the plan and showed up to commit the robbery, they were arrested by a team of agents, on charges including conspiracy to possess cocaine for the purpose of distribution and conspiracy to commit robbery, in violation of the Hobbs Act. Convicted at trial, the defendants received long prison sentences.
The defendants argued at sentencing, among other things, that 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. On May 2, 2014, the Ninth Circuit declined to have a rehearing en banc in United States v. Black (2013) 9th Cir. 733 F.3d *294, the case out of which these facts arose.
Outrageous Government Conduct?
The facts of Black were similar to other ATF fake stash house sting cases, which have resulted in more than 600 arrests of “would-be” robbers in the past several years. Opponents of these stings argue that they entice defendants, (usually minorities from low income neighborhoods), to commit crimes that would never have otherwise existed. As noted in Black, these defendants were recruited:
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.
Black, supra, *303.
Supporters of these stings argue they are the most effective way of combating a wave of home invasion robberies. They argue that the only people who will agree to arm themselves with firearms to steal drugs from armed traffickers are dangerous people, predisposed to violent acts.
Some judges feel uneasy with these cases, and there have been rulings in some cases that similar conduct by ATF violates due process, and can constitute outrageous government conduct. However the majority of the Ninth Circuit has demonstrated, by declining an en banc rehearing in Black, that in this circuit these sting cases will be allowed.
Of course, these cases will still have to be examined on a case-by-case basis, and in some instances a court might still find that an informant or an agent has gone too far in enticing a suspect who was not predisposed to commit a violent crime. 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 (1973) 411 U.S. 423, *431–32. Dismissing an indictment for outrageous government 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.” United States v. Stinson (2011) 9th Cir. 647 F.3d *1196, 1209 (internal quotation marks omitted).
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 (1986) 9th Cir. 783 F.2d *1428, 1438, vacated in part on other grounds sub nom. “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.” Bogart, 783 F.2d at *1436.
The ATF says it has policies in place to prevent such abuses, and that some of these sting cases have been cancelled, when an informant goes too far to entice suspects, or the target suspects do not show an adequate willingness to commit a violent home invasion robbery.
Lead Us Not into Temptation
There were vigorous dissents in Black by Justices Noonan and Fisher. Justice Fisher quoted a dissent from eminent Justice Posner, of the Seventh Circuit, stating that fictitious stash house stings are a disreputable tactic in which law enforcement jacks up sentences, by setting a high amount of fictitious drugs to dramatically increase the sentences of these defendants.
Justice Posner also made an interesting broader-picture policy observation regarding the role of such stings in the so-called war on drugs. Is the ATF actually protecting drug dealers and manufactures?
Are [stash house stings] likely to reduce 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.
Black, 733 F.3d *294, 317, quoting U.S. v. Kindle (2012) 7th Cir. 698 F.3d *401, 416 (Posner, J., dissenting).
Thus, at the end of the day, drug dealing may be a more profitable activity in the Ninth Circuit.
San Diego Stash House Sting History
From 1976 through 1978, the San Diego Police Department ran a program targeting real violent robbers, without the necessity of recruiting “would-be” defendants, creating a make-believe stash house, or selecting arbitrarily high amounts of non-existent contraband. At that time, undocumented immigrants crossing from Mexico into San Diego County, many carrying their life savings on them, were frequently the victims of robberies, rapes, and sometimes murders, at the hands Mexican bandits. The Border Alien Robbery Force (BARF) consisted of SDPD officers of Mexican American Ancestry, who walked around the hills in the area of the border pretending to be immigrants. Robbers frequently attacked them, and shootouts were common.
The program resulted in the arrests of many violent robbers, and when the word got around the Tijuana underworld that armed San Diego officers were posing as undocumented immigrants, fewer bandits were willing to come into United States territory to rob their countrymen. No officer was seriously injured in the shootouts, but the program was cancelled because with bullets flying through the dark night after night, it was just too dangerous for the officers. Joseph Wambaugh’s book Lines and Shadows is an account of the BARF actions, and also gives an idea of the dangers faced by immigrants crossing through the hills into the Unites States. It is now arguably more dangerous for the immigrants, who are at the mercy of violent cartels in Mexico before they even reach the United States border, and who now try to cross in remote areas, to avoid stronger border patrol presence.