stash house – Techdirt (original) (raw)

Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings

from the more-of-this-please dept

The ATF’s stash house stings are one of the worst things about federal law enforcement. And it’s a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can’t tell a judge how much terrorism to charge defendants with. The ATF stings — involving imaginary drugs hidden in fictitious stash houses — give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos — automatically setting up defendants for 20-year prison terms.

Another victim of the ATF’s stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF’s stash house stings are racially-biased. There’s some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.

Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he’s making isn’t the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996).

This is good news for Sellers. And it’s potentially good news for others roped in by ATF stings. If he obtains information showing discriminatory motivation, minority suspects are going to have another way to fight these charges in court.

But the entire opinion is worth reading past the opening declaration in favor of Sellers. Judge Jacqueline Nguyen tees off on the ATF in her concurring opinion, pointing out biased enforcement is only a small part of stash house sting operations’ problems.

While these operations do “not . . . reduc[e] the actual flow of drugs,”2 the government touts them as an important tool “to catch people inclined to commit home invasions.” United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal. 2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x 619 (9th Cir. 2014). But when the government fails to target known criminal enterprises or people suspected of engaging in serious crimes, the practice is highly questionable and raises troubling questions about race-based targeting.

There is no legitimate dispute that these stings primarily affect people of color, but the government has steadfastly resisted any defense attempt to determine whether enforcement is racially biased.

She goes on to point out the government outsources the target selection to informants — ones who have their own interests to serve and protect. This makes it clear the ATF is searching for dangerous criminals to talk into fake stash house robberies. It’s more than willing to take whoever — which more often than not is a minority with no history of violent crime or armed robbery. From there, the government gets to decide how many years of a suspect’s life it’s willing to try to take away. Invariably, every fake drug stash is large enough to demand 20-year minimum sentences.

Then she gets right to the heart of the matter: of course the ATF’s sting operations are racially-biased. They’re based on a bunch of lies, which gives the ATF the opportunity to pick anyone as its fall guy. But the agency always seems to end up arresting the same sort of people.

Law enforcement agents, on the other hand, do not deal with a closed universe of criminal suspects. When conducting a reverse sting, literally anyone could be a target. See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the population of this country, there is an indefinite number of persons who dream of clever and unlawful schemes to make money. Does their dreamy amorality cast them all as fit candidates for a sting by their government?”). There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law. If law enforcement agents target potential stash house robbers in a race-neutral way, then the racial breakdown of targeted individuals would presumably closely mirror that in the community. If it doesn’t, then that’s potentially indicative that the agents or their informants are using discriminatory procedures.

This is what the ATF does dozens of times a year. It takes fake drugs and fake stash houses and turns them into real prison sentences. And, so far, it’s been getting away with it. But it sounds like courts are beginning to tire of locking people up for unwittingly engaging in the ATF’s charades. At some point, this will all come crashing down on the feds, but until then dangerous criminals will continue to walk the streets while down-on-their-luck nobodies serve their prison terms for them.

Filed Under: atf, bias, daryle lamont sellers, entrapment, jacqueline nguyen, stash house, stings

Federal Judges Says ATF Stash House Stings Are Useless And Ugly

from the in-which-the-ATF-is-informed-its-baby-is-neither-cute-nor-likable dept

A chief federal judge in Chicago has handed down a scathing opinion calling ATF stash house stings an “ends justifies the means” evil that needs to be “relegated to the dark corridors of our past.” The opinion shuts the door on two defendants hoping to show the ATF’s fake robberies of fake stash houses filled with fake drugs were racially-biased, but it does show even without the taint of bias, the sting operations are exploitative and useless. (via Brad Heath)

The opinion [PDF] has nothing good to say about the stash house stings. It opens with numbers that certainly appear to show racial bias and it doesn’t let up from there.

It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District’s adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent White. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law cannot be tolerated during these difficult times. It is time for false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.

[…]

Our society simply cannot accept a “win at all costs” mentality in the delicate world of law enforcement, which is ultimately dependent on proactive citizen involvement.

The judge then goes on to speak about the valuable work of taking firearms off the streets, but says that this job cannot, and should not, be performed through bogus sting operations — even in an era where gun violence is seemingly more prevalent. Even when violence against citizens and (especially) law enforcement was at its peak nearly 100 years ago, the ATF never stooped to using complete bullshit to secure a steady stream of criminal defendants.

[E]ven during the low points of the great violence caused by the alcohol wars of Prohibition, the ATP did not seek to use “false alcohol warehouse” tactics against any ethnic organized crime groups to promote public safety. Instead, the ATP used solid investigative work to garner the great public respect of the Elliot Ness era that still lives today as the gold standard of law enforcement. This type of work inspires great public cooperation with law enforcement, unlike the false drug stash house cases before the Court.

Judge Ruben Castillo notes that many ATF sting cases — like the two before him — operate under the theory that roping in otherwise uninvolved citizens will somehow result in the seizure of illegal weapons. Some cases, obviously, do result in weapons being taken off the streets. Far more often, the only thing taken off the streets are people with little in the way of criminal records or cash, talked into taking down a fake stash house for a cut of a completely fabricated drugs and money. The fake amounts of drugs in the fake stash house are used to determine sentence lengths, with the ATF asserting — without exception — that the quantity of make-believe drugs discussed with sting victims is enough to trigger 20-year minimum sentences.

The judge points out that the government is lucky he’s only considering the issues raised by the defendants: alleged Fifth Amendment violations predicated on the apparent bias in the ATF’s stash house sting operations. Much of the 73-page opinion discussed expert opinions based on studies of the underlying facts of a decade’s-worth of stash house stings. Some evidence of discriminatory selection exists, but it’s undercut by most DEA stings being predicated on tips from confidential informants. In other words, maybe CI’s are bigoted, but the operations themselves are not, despite a large percentage of defendants being minorities.

The trials of these two defendants will continue. But the concerns expressed by the judge suggest the ATF is no longer welcome to bring stash house sting prosecutions into Judge Castillo’s court. This is only one judge of hundreds in the federal system, but it’s another federal judiciary voice to add to those who’ve already expressed concern, if not actual dismay, at the ATF’s sting operations.

Filed Under: atf, entrapment, stash house, stings

Another Stash House Sting Criticized By The Court… But Lengthy Sentences Left Untouched

from the zero-positive-contribution-to-society dept

The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government’s tactics. And not without one judge appending a long rebuke to her reluctant concurrence.

Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house “containing” at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas’ sting operations always include fictitious armed stash house guards, otherwise the ATF’s involvement would be unnecessary.

The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.

Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior — both during the sting and during the trial.

Judge Jane Stranch’s concurrence clearly communicates her displeasure with ATF sting operations in general, even if it’s tempered by her inability to move the dial in the appellants’ favor.

Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.

This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It’s not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.

Stranch goes on to note multiple courts have found the ATF’s actions troubling. But, so far, they’ve been unable to do much to stem the flow of stash house sting cases into the nation’s courts. They’ve also been unable — with rare, rare exceptions — to provide any sort of relief for defendants caught up in the government’s fictitious drug robbery plans.

Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.

[…]

[I]t seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They’re also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF’s insistence on pretending there’s mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.

This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.

Filed Under: 6th circuit, atf, own plots, richard zayas, stash house, sting

Judge Says Stash House Sting Operations Allow Prosecutors To Be Judge, Jury, And Executioner

from the the-fix-is-always-in dept

The question the government doesn’t want to answer is whether we’re better off pursuing fake criminals or capturing the real ones. Law enforcement does both, but sting operations — both of the terrorist and the drug variety — have been increasing over the years, turning officers and agents into actors and stage directors.

The FBI has been crafting “terrorists” from a collection of outcasts, retirees, and the developmentally disabled for years. Canada’s law enforcement is just as willing to score on unguarded nets, traipsing happily over the line between “highly questionable” and “actual entrapment” in its own terrorist “investigations.”

The ATF and DEA have combined forces to drag weapons into drug dealing using elaborate sting operations to entice no small number of people to get prepped to rob a nonexistent stash house of imaginary drugs. This would be bad enough, as it often appears the ATF is willing to bust anyone that engages in speculation about stash house robberies. Adding insult to injury, the federal government recommends sentences based on the fake amount of fake drugs not actually found in the fake stash house suspects talked about robbing.

Judge Otis Wright tore into the government for its willingness to craft imaginary stash house robberies and followed it up by asking for convicted suspects to be locked up for real years, based on nothing more than what the government told defendants would be located in the fake stash house.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The government loves these cases because they’re easy wins. There are no suspects to track down after a robbery. Instead, every suspect is safely housed in an undercover agent’s vehicle, unwittingly waiting to be arrested. The suspects never lay low until the heat dies down, forcing the government to perform actual investigative work. Instead, the suspects are guided through the process of planning for a stash house robbery, including being given weapons to do so if they fail to provide their own. With massive sentences predicated on made-up drug quantities hanging over their heads, plea deals favorable to federal prosecutors are easy to obtain.

Another federal judge has plenty of problems with the government’s stash house stings. Pennsylvania’s Gerald McHugh has just issued a memorandum [PDF] trimming back the sentence handed to Clifton McLean, mainly due to the government’s sentencing recommendation being based on the amount of drugs it said would be found at the fake stash house, rather than on anything tangible. [h/t Brad Heath]

Early last year, the judge took note [PDF] of the government’s willingness to push people into actions they may not otherwise have taken.

Initially, there is no indication that McLean was involved in an ongoing criminal enterprise to commit stash house robberies prior to his initial contact with the government informant, and there is also no indication that the government believed it was infiltrating an already-existing conspiracy to commit such a robbery. Rather, in the best case scenario for the government, a newly created conspiracy was hatched when McLean allegedly approached the CI for the first time, though this initiation is less than certain. This factor weighs in favor of McLean.

[…]

The third factor, and certainly one of the most important, is the nature of government instigation or origination of the crime. The outcome of this inquiry is less clear. The government has asserted that the paid CI in this case was initially approached by McLean, who then inquired about whether the CI knew of any stash houses that McLean could rob. There are many questions surrounding this initial engagement. The encounter was not recorded, which is to be expected since the government asserts that the meeting was not planned, and a CI cannot be expected to wear a wire at all times. However, what this means is that the only person, aside from McLean, who can speak to what occurred at that meeting is the CI, who was not present to testify at the evidentiary hearing. While this is certainly a valid trial strategy, and may reflect government concern over the informant’s safety, I am hesitant simply to adopt this second-hand account of what occurred at this meeting, as told by the agents to whom the CI reported. I certainly do not discredit the testimony of the agents, but all they can testify to is what the CI relayed to them and their impression of his credibility. On top of this, the determination of whether McLean was inquiring about a stash house robbery is based on the CI’s account of slang that McLean used and the CI’s personal interpretation of that slang, with no additional context provided.

Unlike other stings the ATF has run, McLean showed more interest than most in pursuing a stash house robbery. But even though the judge didn’t see enough to indicate entrapment, he’s less pleased with the government’s sentencing recommendations.

The structure of sting operations such as this is highly problematic. In practical terms, “sentencing discretion is delegated all the way down to the individual drug agent operating in the field.” United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994). Although the Government defends the specified amount as necessary to protect its agents, I find that rationale troublesome on several levels. First, law enforcement’s tactical concerns should not control either the severity of charges against a defendant or the range of sentences. To the extent that the Government constructs a crime, its elements should be related to a defendant’s culpability. Here, where the record is clear that McLean was “in for a penny, in for a pound,” specifying such a high amount does not truly bear on his culpability. Once the Government established that McLean was willing to engage in an armed robbery of any quantity large enough to resell, its core law enforcement objective was met.

[…]

The Government clearly had an interest in exposing the scope of his capability and connections, and in seizing as great a quantity of drugs as possible. No similar interest exists where the crime itself is fictional.

But if the objective is really to hit stash house sting suspects with the full force of sentencing guidelines, then the objective is “whatever nets the most years in prison.” The judge here finds the government always conjures up a quantity of fake drugs that will generate the longest minimum sentence.

From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence.

[…]

[B]y the Government’s reasoning, the very nature of this type of undercover operation necessarily requires, for the safety of its operatives, a scenario that automatically triggers mandatory minimum sentences, even if the target of the sting would otherwise have taken the bait, and regardless of whether the suspect had ever before dealt in quantities of this kind.

The government’s “evidence” of its fake drug amounts is nothing more than agents’ testimony. They can swear they told the defendant there would be more than 5 kilos of drugs. It makes little difference that there were never any drugs to be stolen. The government then wraps itself in its “operative safety” blanket and hopes the judge won’t question its inexplicable need to protect its agents by consulting drug sentencing guidelines. Judge McHugh, however, did take a look at it, and doesn’t like what he sees — a government agency pushing judges towards harsher sentences by insinuating anything less would be dangerous for law enforcement agents.

Preliminarily, I have an institutional concern that the Government couches the justification for its techniques in terms of officer safety. Unquestionably, undercover operatives are individuals of great commitment and courage who take risks average citizens would find intolerable. Their safety must be of paramount concern. At the same time, however, tying the physical safety of an agent to a mandatory triggering quantity of drugs is problematic. Such a rationale cannot help but inhibit any judge who must consider the implications of sting operations because no responsible judicial officer would ever want to place agents in harm’s way. But without in any way jeopardizing the safety of any agent, a court can certainly ask why, even if it is necessary for purposes of “credibility” to specify certain amounts as part of an operation, why is it necessary to charge the target of the investigation with such high amounts in every case?

[…]

In short, nothing about the actual record in this case validates the proposition advanced by the Government that substantial amounts of cocaine are fundamental to the success of its operation.

This not only prevents judges from exercising discretion, it also prevents the jury from doing its job properly.

Absent some constitutional prohibition, because the jury found McLean guilty of conspiring to possess 5 kilograms or more of cocaine, I am bound to sentence him accordingly. This underscores the due process concerns at the heart of sting operations. Since no drugs existed, McLean was charged with conspiring and attempting to possess the amount of drugs the Government decided to offer him, after he had agreed to participate in a fictional robbery. The Government made a deliberate choice concerning which offenses and quantities to charge, a choice that then constrains the jury.

The judge goes on to note the government even cited a decision finding against mandatory minimum sentences to support its argument for a mandatory minimum sentence. On top of that, it used the fake drug quantity to ensure it got the sentence it sought, leaving no room for meddling from troublesome judges or jurors.

It is certainly true that the jury “found” the defendant guilty of a conspiracy to possess greater than 5 kg of cocaine, but the Government assured such a result in advance by the script that it wrote and the charges that it brought. In that sense, a stash house sting operation is the “perfect” crime, at least from the standpoint of the prosecution, in that it predetermines both verdict and sentence.

In the end, Judge McHugh does what he can… which isn’t much. He boots the government’s mandatory minimum-triggering claim of five kilograms and uses a lower amount. In total, it only takes away five years of McLean’s 19-year sentence. But McHugh shows his courtroom won’t be a place where the government can expect easy wins with prosecutions where the fix is in from the moment the indictment drops.

Some courts have suggested that so long as there is a “reasonable” explanation for the amount of drugs specified in an undercover operation the Government’s conduct will pass constitutional muster. I am not prepared to adopt such an approach where the Government’s premise cannot be tested in any meaningful way and is refuted by specific evidence of record…

To the extent that principles of Due Process are meant to be a check on government power, there is no more fundamental interest than liberty. A sting operation that constructs a crime implicates liberty interests in a unique way, in that the Government seeks out its citizens for the purpose of testing their willingness to commit a criminal act. There can be no greater manifestation of the coercive power of Government than creating what is, in effect, a morality test, while specifying the penalty for failing that test in advance.

A check on government power is what’s needed. Very few courts have been willing to place themselves between defendants and law enforcement agencies that would rather create criminals than go after those already in circulation.

Filed Under: clifton mclean, dea, drug raids, entrapment, fake criminals, fbi, gerald mchugh, law enforcement, own plots, stash house

Appeals Court Sees Nothing Wrong With The ATF Busting People For Thinking About Robbing Fake Stash Houses

from the fake-criminals...-because-real-criminals-are-just-too-wily dept

The FBI continues to handcraft its own terrorists, ensuring a steady stream of prosecutions, press releases and counterterrorism funding. Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and (more recently) Explosives (ATF) is busy turning unsuspecting males into would-be Omar Littles.

Last year, Mike Masnick covered federal Judge Otis Wright’s scathing critique of the ATF’s “made-up plot” to turn three people into drug house robbers. Only there was no drug house, no drugs or cash to rob and the ATF had to work overtime just to get the three defendants to agree to carry out this completely fabricated criminal act.

In his dismissal, Wright took aim at the ATF’s beyond-questionable tactics.

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

…Despite the Supreme Court’s admonition, the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

He also pointed out that, because the criminal enterprise was completely made up, the ATF could say whatever it wanted to in order to maximize the future “wrongdoing” of the men it arrested.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The ATF deployed similar tactics against Alex Pedrin. Twenty-year ATF veteran Richard Zayas — who has carried out “hundreds” of stash house stings — turned Pedrin into an aspiring stash home invader. Unfortunately for Pedrin, the Ninth Circuit Court of Appeals wasn’t as appalled by the ATF’s actions as Judge Otis Wright.

Again, a fictitious drug house was presented as a robbery target by Zayas, watched over by “armed guards” and “containing” 40 to 50 kilos of cocaine. Pedrin never got a chance to take down the stash house. The other participants became suspicious it might be a setup. Everyone split up after spotting ATF agents, but were captured shortly thereafter. Pedrin — who never actually participated in a robbery, much less obtained any drugs — was charged with “conspiracy to possess with intent to distribute.” Another “successful” sting by Agent Zayas, and not a single actual criminal was harmed.

Pedrin didn’t raise the entrapment defense, but did challenge his prosecution as being the result of “outrageous government conduct.” The court didn’t buy it, but Judge John T. Noonan dissented from the majority opinion.

The undisputed and dispositive fact is that Pedrin was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him. The law is settled: “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and induce commission of a crime so that the government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992). In this case, the ATF originated the criminal design, implanted it in Pedrin’s mind and induced him to commit the crime that the government then prosecuted.

Who has the burden of proof as to the defendant’s disposition? In Jacobson, the Supreme Court provided the answer: “[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.” The timing of the defendant’s disposition is critical: “The sole issue is whether the Government met its burden of proving that petitioner was predisposed to violate the law before the Government intervened.” No showing has been made that Pedrin was known to be predisposed to commit this crime prior to being approached by the agents of ATF. The ATF laid out the entire stash house scheme to him before he had said a single word. The prosecution of his case should be dismissed.

Noonan finishes off his dissent by pointing out what the ATF’s long history of “reverse stings” has done for it, and the government it serves. Not content to take down actual criminals engaged in actual criminal activity, the ATF has continually manufactured criminals and criminal activity. Maybe it finds this process generates better results. Maybe it just finds it easier than investigating criminals currently engaged in criminal activity. Whatever the case, Noonan doesn’t care for the ATF’s takedown of Pedrin and his co-defendants.

As the case now stands, the ATF enhances its reputation by its successful ruse. The government of the United States 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.

Pedrin perhaps saw Noonan as a wedge against the appeals court’s decision. An en banc hearing was requested to rehear the decision upholding his conviction. The court has declined this opportunity to further examine the ATF’s fake drug house operations. Once again, it’s Noonan who has a few words to say about the subject.

When the government puts psychological pressure on persons to commit a crime this pressure militates towards a finding of entrapment…

Here, the government […] relied on psychological tricks to persuade Pedrin to participate in the crime. First, the confidential informant was co-defendant Omar Perez’s uncle, and therefore someone to whom Perez and Pedrin, a close friend of Perez’s, were more likely to succumb than they otherwise might. Second, the informant-uncle peer pressured Pedrin and Perez by telling them that the government agent was “very cool people,” that he, the informant, “want[ed] to do the job,” and that if they could not do it, he would find people who could. Third, the government put time pressure on defendants by telling them the opportunity was available to them for only a limited period. Finally, the government agent eliminated some of the moral qualms defendants may have had about the drug dealers they were planning to rob by telling them that he had “no love” for the dealers and that they were cheating him out of his fair share of the profits from their business. These psychological tactics no less induced defendants to participate in the reverse sting than did the tactics employed by the government in Sorrells, Sherman, or Jacobson.

As to the government’s claims that Pedrin was predisposed to commit criminal acts like a stash house robbery, Noonan finds them weak and unsupported by the evidence presented.

Regarding Pedrin’s predisposition to participate in the scheme, not only did the government know nothing about him when they approached him, nothing in his record suggests that he was apt to commit a crime like this one. Pedrin was in and out of the juvenile system, and as an adult served time in jail for several misdemeanors. Pedrin had two felony convictions, one for being “belligerent to officers while being booked into jail,” and another for the crime of endangerment for which he served a prison sentence of a little over one year. Pedrin’s record contains no crimes related to dealing cocaine, robberies, or home invasions.

The only evidence supporting that Pedrin previously committed a stash house robbery is the testimony of co-defendant Terry Bombard who was more than ten years older than twenty-four-year-old Pedrin and who testified against him in exchange for a deal of ten years instead of a life sentence. The government offered no evidence independently corroborating Bombard’s testimony. On these facts, Bombard’s assertions that Pedrin previously committed stash house robberies would likely not be proven beyond a reasonable doubt.

The conviction holds, for something as ethereal as a conspiracy to possess drugs. Apparently, this is the way the ATF fights the Drug War. (And who knows why it’s even decided to “enlist,” other than the weapons connection…) It steers people not currently engaged in criminal behavior towards criminal acts predicated on nonexistent locations and contraband. Then it serves them up to the justice system and issues press releases. Apparently, the DEA is supposed to catch the actual criminals, even if it seems to be far more interested in lifting cash from the recreational marijuana users it finds traversing the drug corridor known as the United States of America.

Filed Under: 9th circuit, alex pedrin, atf, entrapment, own plot, pre-crime, richard zayas, stash house, thought crime