US v. Black, No. 11-10036 (10-23-13) (Fisher with Graber; dissent by Noonan).

It’s not as if there isn't enough crime for the ATF; they decided to invent and construct a "home invasion" offense, and then recruit (entrap) home invaders. That is what happened here -- the ATF brought in a CI to troll for those willing to invade a home for drugs. It wasn't long before the CI got some willing participants, who eventually showed up, with some pushing, at a designated spot, armed of course. They were arrested. The 9th affirmed the convictions and sentences. The 9th stated they were concerned with the ATF creating this offense, and recruiting, but found it wasn't "outrageous gov’t misconduct." The defendants took steps, and boasted about past activities. The 9th also found that the court did not err in finding failure to prove sentencing entrapment beyond a preponderance. Dissenting, Noonan decried the govt’s activities in creating the offense, and then going out and recruiting participants, none of whom were presently or in the past involved in home invasions or in concerted actions. Noonan found the gov’t testing the morals of citizens objectionable. He also took issue with the misconduct test, arguing that the focus should be on whether the defendants were presently engaged in such conduct. Noonan also argued that the gov’t had engaged in sentencing entrapment.

This case is a good starting point for an explanation of gov't misconduct: (1) known criminal characteristics of defendants; (2) individualized suspicion of defendants; (3) the govt's role in creating the crime of conviction; (4) gov’t encouragement; (5) the nature of the gov’t participation in the crime; and (6) the nature of the crime being pursued and necessity. The opinion sets out the test, and goes through the facts and policies. Dissenting, Noonan argues for a different emphasis but also uses the facts, demonstrating that the majority makes too much of the past inclinations of the defendants and their history.