Case o' The Week: Another "Black" Eye for ATF, but Conviction Survives -- US v. Black, Outrageous Gov't Conduct, and Stash Houses

The Hon. John T. Noonan, Jr.

“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.”

   The good news? Judge Noonan, an experienced and respected Circuit Judge, correctly calls-out this ATF manufactured-crime scheme as a “disgrace.”

  The bad news? He’s writing in dissent. United States v. Black, 2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20 (Noonan, J., dissenting), decision available here.

Players: Decision by Judge Fisher, joined by Judge Graber. Dissent by Judge Noonan.

Facts: ATF brought a Florida snitch to Arizona (where he had never been), and paid him $100 a day to troll seedy Glendale bars to find someone willing to rob a fake stash house. Id. at *2. This trolling snagged Simpson. The snitch introduced this defendant to an undercover agent. Id. Although Simpson first wanted to do the robbery with one fellow “goon,” the agent convinced Simpson to recruit others (including Black). Id. at *4. Simpson bragged about previous such robberies (though no later evidence ever supported these claims). Id. at *3-*4. Simpson’s “crew” ultimately showed up at a warehouse as directed by the undercover agent, were arrested, and were convicted of conspiring to possess cocaine with intent to distribute, and use of a firearm in furtherance of drug trafficking. Id. at *4. (Then-district) Judge Murguia denied the motion to dismiss the indictment for outrageous government conduct. Id. at *1.

Issue(s): Is it outrageous government conduct for agents to manufacture a crime, when there was no showing that “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 because involved.” Id. at *17 (Noonan, J. dissenting) (citing Bonanno).

Held: “We . . . 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 . . . 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 grossly shocking as to violate the universal sentence of justice.” Id. at *1 (internal quotations and citations omitted) (emphasis in original). 

  “We also affirm the district court’s rejection of sentencing entrapment.” Id.

Of Note: Much of Black is now standard (albeit disappointing) fare. What seems new is the Court’s tolerance of a crime truly scripted by ATF from start to finish, with defendants ensnared by a paid imported snitch trolling bars in “the bad parts of town.” Id. at *15. In a compelling dissent, Judge Noonan wonders why the majority abandons “good law” – the five-part test of Bonanno. Id. at *17. Judge Noonan worries that there is now no standard to control these reverse sting operations, and flatly rejects the majority’s heavy reliance on the defendants’ (unsubstantiated) boasting to the undercover agent as enough assurance to justify this tactic. Id. at *16-*17. Judge Noonan opines that this decision tolerates “ATF . . . actions [that] constitute conduct disgraceful to the federal government.” Id. at *20 (Noonan, J., dissenting).

How to Use: To be fair, author Judge Fisher is sensitive to dissenting Judge Noonan’s “compelling concerns.” Id. at *12 & n. 13. Judge Fisher hints heavily that the defendants’ video and tape-recorded boasts of prior robberies weighed strongly in the government’s favor, as the Court weighed whether the defendants were actually willing to undertake the robbery without the agents’ goading. Id. at *11. A case on similar facts, without those recordings, might be the stash house conviction that finally rings the outrageous conduct bell.

                                               

For Further Reading: Two weeks before Black was decided, Judge Silverman (joined by Judge Fisher) delivered a terrific stash house entrapment decision. UnitedStates v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), blog here. Although Black involved a snitch, manufactured drug amounts, allegations of sentencing entrapment, a stash house robbery, and important new Apprendi rules in this context, Judge Silverman’s great Cortes case earned nary a cite in Judge Fisher’s Black opinion or in the related mem. dispo (that discusses entrapment instructions at the Black trial). See Black, 2013 WL 5738871 (mem.) A curious omission.

Image of the Hon. Judge John T. Noonan from http://www.flickr.com/photos/cmichel67/8964232516/sizes/o/in/photostream/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Solid Gould, New Ninth Circuit Rule on Terry Stops for Misdemeanors, Grigg

Judge Gould accomplishes the rare double-play, with last week's great decision in Yida (featured here) and this week's excellent opinion in United States v. Grigg, __ F.3d. __, 2007 WL 2379615 (9th Cir. Aug. 22, 2007), decision available here. In Grigg, Judge Gould articulates a new rule for the Ninth (and apparently, the first such rule in any circuit): Despite the Supreme Court's decision in Hensley, being wanted for a misdemeanor is not necessarily grounds for a Terry stop.

Players: Great win by AFPD Thomas Monaghan, Fed. Def. E. Wa. & Idaho.

Facts: A citizen complained to the cops that Grigg was “booming” music out of his car. Id. at *1. As the citizen filled out a complaint, Grigg drove by with no music blaring. Id. The police nonetheless pulled Grigg over, blocked the car, ordered him to stay inside, then saw a rifle in the car. Id. at *2. Officers had made no effort to call the car in to dispatch, or identify the driver. Id. at *2. Grigg was charged with possession of an unregistered machine gun and convicted after a trial. Id. at *1.

Issue(s): “[I]n Hensley, the . . . Supreme Court held that ‘if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.’ The Hensley court explicitly confined its analysis to the felony context, leaving open the question whether the rule could be extended to ‘all past crimes, however serious,’ i.e., misdemeanors. . . . Grigg’s challenge to the district court's extension of Hensley raises an issue of first impression for us.” Id. at *4 (citation omitted) (emphasis added).

Held: “[O]ur evaluation of a Terry stop in the context of a completed misdemeanor should tend to give primary weight to a suspect’s interests in personal security, while considering the law enforcement's interest in the immediate detention of a suspect is not paramount.” Id. at *9.

“Despite the misdemeanor-felony distinction . . . we decline to adopt a per se standard that police may not conduct a Terry stop to investigate a person in connection with a past completed misdemeanor simply because of the formal classification of the offense. We think it depends on the nature of the misdemeanor.” Id. at *9.

“We hold that under the balancing test set forth in Hensley, a court reviewing the reasonableness of a stop to investigate a past misdemeanor (or other minor infraction) must assess the potential risk to public safety associated with the nature of the offense. Under the circumstances here, it was unreasonable for the Nampa police to pull over Grigg on suspicion of having played his music too loudly where they did not duly consider the lack of any threat to public safety, especially given the untested alternative means of ascertaining Grigg’s identity. The motion to suppress was erroneously denied.” Id. at *11.

Of Note: This new Ninth rule is an important limitation of Hensley. Hold your breath ‘till the en banc and cert. twins pass by.

How to Use: Is your client’s misdemeanor sufficient to trigger a Hensley stop? Here’s the test:

“”[A] court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation. A practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety. Conversely, the absence of a public safety risk reasonably inferred from an innocuous past misdemeanor suggests the primacy of a suspect’s Fourth Amendment interest in personal security.” Id. at *8.

For Further Reading: Here’s the back story. The trial defense was that Grigg didn’t know the gun was automatic. At trial, Grigg called the gun-seller who testified that it was broken and fired sporadically. See Appellant Brief, 2006 WL 3368590. ATF Agents – unhappy with that exonerating testimony – offered the witness immunity to change his story. Id. at *24-*25. When the witness refused an agent threatened, “someone is going to have to drink from that trough” – meaning the exonerating would be prosecuted if he didn’t play along with the government's theory. Id. At trial, an agent conceded this statement took place. Id.

Stellar investigation by Alcohol Tobacco and Firearms, the crown jewel of federal law enforcement agencies. Think these equities (not mentioned in the decision) weighed in favor of this Fourth Amendment victory?


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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