United States v. Pedrin, No. 11-10623 (8-17-15)(Fletcher with Christen; dissent by Noonan).  This issue involves government misconduct.  It arises from yet another gov't reverse sting involving a stash house robbery.  The 9th affirmed the conviction, but Noonan has a stinging dissent, lambasting the gov't and arguing that the court should consider entrapment, even though the defense was not presented (!).

To the facts: the agent was working with a CI.  The agent had done "hundreds" of these reverse stings, all following a similar pattern.  Here, the CI told the agent that his nephew called to "ask for work." This meant robbing drug houses. The uncle of course immediately alerted the agent, who arranged for a meeting with the nephew and the defendant.  The plans were hatched, and the defendant agreed.  He continued to go forward, only to be warned on the way to the robbery that it was a sting.  He and others fled, but he was eventually arrested and charged with various drug trafficking counts.  He was convicted at trial and appealed.

The 9th applied the Black test, (United States v. Black, 733 F.3d 294 (9th Cir. 2013)), which identified six facts for outrageous gov't misconduct: (1) criminal character of defendant; (2) individualized suspicion; (3) gov't role; (4) encouragement; (5) nature of gov't conduct; and (6) nature of crime.  The majority stated that the defendant (through the nephew) approached the agent; it was not a case of the agent going into a bar, and asking around.  The other factors all pointed to the defendant wanting to do this offense without much prodding.  In short, the Black test was not met here.

Noonan, in a spirited and anguished dissent, argued that the gov't entrapped.  The concluding paragraph summarizes it well:  "As the case now stands, the ATF enhances its reputation by its successful ruse.  The government...is diminished by its dependence on the duplicity of the agency.  Because of a choice made by Pedrin or his counsel, entrapment was not argued and Jacobson was uncited.  By the rules governing litigation we can affirm Pedrin's conviction.  By our commitment to a humane justice, we are called to dismiss the case made by the entrappers."

The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/17/11-10623.pdf