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

.

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

.

Case o' The Week: Viva the Apprendi Revolution! (Thirteen Years later . . . ) - Cortes and "Sentencing" Entrapment at Trial

 

Hon. Judge Barry Silverman

  In a welcome and important opinion, Judge Silverman explains the new term for “sentencing entrapment” after Apprendi.

   “Entrapment.”

   United States v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), decision available here.

Players: Decision by Judge Silverman, joined by Judges Thomas and Fisher.

Facts: An undercover agent convinced Cortes to rob a (fake) stash house with “100 kilograms” of cocaine. Id. at *1. The agent bemoaned the (fictitious) cartel’s mistreatment of him, and explained that his drug boss had been sleeping with his wife. Id. at *2. Similarly cuckolded, and therefore sympathetic, Cortes allegedly coordinated a group of men to rob the stash house. Id. at *2. He was arrested, convicted, and sentenced to 20 years. Id. at *3. The district court denied Cortes’ request to instruct the jury on sentencing entrapment. Id. at *7.

Issue(s): “Cortes . . . argues that the district court erred in refusing to instruct the jury on sentencing entrapment, which is a separate affirmative defense to the quantity element of the drug charge under 21 U.S.C. § 841.” Id.

Held: “We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be.” Id. at *8. “A criminal defendant is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range. That is, if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed, the he is entitled to a jury instruction on that defense.” Id. at *9. “'Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.' Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that sentencing entrapment must be tried to a jury where the defendant’s argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences.” Id. at *10.

Of Note: We in the defense bar have been arguing that “sentencing entrapment” should be a defense for the jury since Apprendi – and others felt similarly. (See United States v. Williams, 478 F.App’x 364, 366 (9th Cir. 2012)(Silverman, J., dissenting)). Two regrettable decisions – the Buckland en banc opinion in the Ninth, and the (now-overruled) Harris case in the Supremes – delayed what Judge Silverman now squarely holds is a righteous trial defense. Cortes is a must-read for those who defend federal drug crimes: by endorsing “sentencing entrapment” as a trial defense when mand-mins are involved, it opens up an entirely new realm of possibilities when defending these tough, high-exposure charges. Cortes is a good stash-house decision, but a seminal decision for the defense of federal drug cases.  

How to Use: Sparks from Cortes ignite two immediate and welcome changes. First, because confidential informants are so often central to the claim of sentencing entrapment, Cortes now pushes CI disclosure pretrial, to permit for adequate investigation and preparation for trial. Put differently, the Cortes sentencing entrapment defense now forces the government to deal cases on reasonable terms, or burn their snitches well before trial (while a defendant can still plead and snag two points for acceptance).  

  Cortes also now requires earlier Brady / Giglio disclosure. Dirt on the snitch is material impeachment evidence that goes to a trial defense: sentencing entrapment. Cortes instantly shifted the government’s Brady / Giglio disclosure burden far earlier, to the pretrial context. Modify discovery letters with a cite to Cortes and demands for early CI and Giglio disclosure: this brave new world of Apprendi defenses at trial presents new discovery frontiers ripe for exploration.

                                               

For Further Reading: In Cortes, Judge Silverman astutely observes that “following Apprendi, . . . ‘sentencing entrapment’ is a bit of a misnomer.” Id. at *7. Drug quantity is “an element of the offense,” “not a sentencing enhancement or factor,” so this variety of government coercion or enticement is now a straight-up entrapment theory cognizance at trial. Id. For a useful collection of authority on this defense, see the outline here.  

Image of the Honorable Judge Barry Silverman from http://www.law.asu.edu/News/CollegeofLawNews.aspx?NewsId=2482

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

 .