Case o' The Week: Ninth Shines Light on on Dark Oakes - Sentencing Manipulation and Sentencing Entrapment
“Tommy’s [Oakes] three-year assignment to NET-5 was a natural fit, and one of the most productive on record. His gift of gab, coupled with his tenacity and ceaseless energy, helped him successfully cultivate more informants and cases than most people in their right minds would take on. Tommy received recognition for two major cases he initiated and helped orchestrate: Operation Triple C, and Operation Showdown. Over 20 individuals were arrested during Triple C, many of whom were subsequently convicted of federal drug charges.”
Yuba County Sheriff’s Department Peace Officer of the Year 2008, available here.
“[T]he Court is deeply troubled by the participation of Detective Oakes, the investigation fell just shy of constituting outrageous government conduct.” United States v. Boykin, 2015 WL 234605 (9th Cir. May 18, 2015), decision available here.
Players: Decision by N.D. Texas Judge Lynn, joined by Judges Hawkins and Rawlinson.
Facts: Local Yuba City and California state law enforcement agencies, and the Feds (including the FBI) conducted a meth investigation with a team dubbed “NET-5”. Id. at *1. Their first confidential source, Rachel Rios, purchased meth from Boykin. Rios was then was deactivated when the government learned she was still selling meth. Id. NET-5’s second confidential source, Crystal Housley, bought more meth from Boykin. Housley was then arrested on federal fraud charges (though she was not deactivated for two months). Id. Turns out that Confidential Source Housley had a close relationship with one of the NET-5 members, Detective Thomas Oakes. Id. at *1. (Detective Oakes gave Housley his home phone number, and got NET-5 to pay for Housley’s apartment and utilities). Id. at *4 & n.5. Detective Oakes gave “inaccurate” testimony at Boykin’s trial, when Oakes incorrectly represented that C.S. Housley was immediately deactivated when she was arrested on federal charges. Id. at *2. In addition, Detective Oakes’ brother was friend of Boykin and Boykin’s brother – yet Oakes continued to be involved in the investigation. Id. Boykin was convicted after trial, and moved for a reduction based on “sentencing entrapment.” Id. at *5. That motion was denied, and Boykin was sentenced to 210 months. Id. at *3. Boykin appealed, “arguing that the district court erred by not granting a downward departure for sentencing manipulation.” Id. at *3.
Issue(s): “To prove sentencing manipulation, a defendant must show that the officers engaged in the later drug transactions solely to enhance his potential sentence . . . Cases from other circuits have granted relief for sentencing manipulation in only the extreme and unusual case involving outrageous governmental conduct.” Id. at *5 (internal quotations and citations omitted).
Held: “Boykin fails to demonstrate that the district court’s findings were clearly erroneous . . . [A]lthough the Court is deeply troubled by the participation of Detective Oakes, the investigation fell just shy of constituting outrageous government conduct.” Id. at *6.
Of Note: This wasn’t “sentencing manipulation,” explains the Court, because the “government extended its investigation to build a stronger case against Boykin.” Id. at *6. Why did the government need to “extend its investigation?” Because “the government’s first two confidential sources . . . . were both convicted of serious offenses during the period they were acting as confidential sources against the Boykins.” Id.
Boykin is a tough decision for the defense. In a nutshell, the opinion’s holding seems to be that law enforcement can stack up drug sale amounts (and sentencing exposure) while it runs through a series of dirty informants until a clean-enough cooperator finally delivers. Though the “deeply troubled” language is welcome, the Court’s ultimate holding provides little disincentive for law enforcement in an investigation that was half keystone cops, half “only in the movies.” Id. at *2 & n.3.
How to Use: Was your client disinclined to sell large amounts, but was pushed to do so by a snitch? That’s “sentencing entrapment:” the focus is on your client and his or her intent.
By contrast, did law enforcement continue a series of drug sales to meet a threshold amount and trigger mandatory minimums? That’s “sentencing manipulation:” the “judicial gaze” should focus primarily “on the government’s conduct and motives.” Id. at *5.
In Boykin, Judge Lynn works through the differences between sentencing entrapment and sentencing manipulation– worth a careful read if either theory is at play in your case.
For Further Reading: Sentencing entrapment, sentencing manipulation, and imperfect entrapment: easily confused, with significantly different tests and remedies. For a helpful memo untangling the trio, see Ass’t Clinical Prof. Katie Tinto, Sentencing Manipulation / Sentencing Entrapment, available here.
Image of California Black Oak from http://www.yosemite.ca.us/library/trees_of_yosemite/images/california_black_oak.png
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org