Sunday, October 27, 2013

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

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


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