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: 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

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Case o' The Week: Bad Facts Make Good Law -- Yuman-Hernandez and Sentencing Entrapment

 The Ninth delivers an opinion that has everything we could want: thoughtful clarification of a defense theory that helps ease our burden, rejection of a government approach that would make a defense functionally impossible, and a stern warning that the Circuit takes a “hard look” at a particularly troubling category of cases.

A win across the board (except, sadly, for the defendant himself). United States v. Yuman-Hernandez, 2013 WL 1395811(9th Cir. Apr. 8, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judge Fletcher and visiting District Judge

Korman.

Facts: Yuman-Hernandez was convicted of conspiracy to rob a stash house and use of a firearm. Id. at *1. An agent, pretending to be a courier, met with the heavy and his “crew” – including Yuman-Hernandez – and planned a robbery of a (fake) stash house “containing” over 20 kg. of cocaine. Id. Yuman-Hernandez had an opportunity to withdraw, and didn’t. Id. He recruited a co-defendant. Id. He also drove the heavy, to get marijuana to trade for an assault rifle for the robbery. Id. A co-defendant testified the heavy told Yuman-Hernandez he’d get paid when the cocaine was sold. Id. At sentencing, the district court found Yuman-Hernandez had not met his burden to prove sentencing entrapment argument, and imposed the mand-min sentence of 180 months.

Issue(s): “Yuman–Hernandez appeals his . . . mandatory-minimum sentence, assigning error to the district court's rejection of his sentencing entrapment argument. He argued a lack of predisposition to commit an offense involving the amount of cocaine charged, and was thus entrapped.” Id. at *1.

Held: “Yuman–Hernandez takes issue with what he perceives to be a lack of evidence showing an affirmative predisposition to commit a crime involving twenty to twenty-five kilograms of cocaine. But Yuman–Hernandez ignores the fact that it was his burden to show a lack of predisposition. The district court's finding was reasonable in light of this burden. Yuman–Hernandez complains most forcefully that he was not financially capable of purchasing the amount of cocaine at issue. But his ability to purchase any given amount of cocaine is not relevant. Instead, the predisposition-capability concerned here is that to conspire with others to take the amount of cocaine involved by force. His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine. He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery. Testimony showed [the heavy] intended to sell the cocaine himself and distribute the proceeds — Yuman-Hernandez needed only provide muscle. While the question of his capability to steal twenty to twenty-five kilograms as opposed to some smaller amount is less enlightening in this context, the cumulative evidence tended to not only rebut any argument that he lacked intent, but in fact show the affirmative existence of intent. Further, Yuman–Hernandez offered no evidence to suggest otherwise—a fatal error in light of his burden. Thus, the district court did not abuse its discretion in rejecting the sentencing entrapment argument.” Id. at *3.

Of Note: Loss for this defendant, but this great opinion is a defense win. Judge Goodwin untangles the confusion surrounding sentencing entrapment. He clarifies that in the context of fake stash house robberies, it is not the defendant’s burden to establish both a lack of intent and a lack of capability. Id. at *3. [I]n the case of fictitious stash house robberies, the defendant need only show a lack of intent or lack of capability to deal in the quantity of drugs charged.” Id. at *3.

   Judge Goodwin also explains that “outrageousness is not itself an independent prong of sentencing entrapment.” Id. Very important holding: a case needn’t be “outrageous” for sentencing entrapment to be a viable defense theory.      

How to Use: The Ninth gives sting operations with stash houses a “hard look.” Id. at *3. You should give Yuman-Hernandez a hard look if you have such a case, or any sentencing entrapment issue: it is a lead decision.

                                               

For Further Reading: Did you hear about the new Speedy Trial Act exclusion? Continue the trial, because we don’t have money to mount a defense? For a remarkable tale of sequestration’s impact on the biggest active terrorism case on American soil, see the New York Times article here. 

Image of “Stash House” from http://ffilms.org/wp-content/uploads/2012/06/Stash-House.jpg

Image of Uncle Sam and sequestration scissors from http://www.rand.org/blog/2013/02/the-state-of-the-union-2013.html

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

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