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Federal Appeals Court Rules ATF ‘Reverse Stings’ Do Not Constitute ‘Outrageous Government Conduct’

A federal appeals court has ruled, despite its previously expressed objections, that a district court was wrong to rule that a Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) “reverse sting” operation involving an imaginary cocaine stash house did not involve or constitute “outrageous government conduct.”

“We have previously held that similar reverse-sting operations, if properly conducted, are a permissible law enforcement tactic,” the Ninth Circuit Court of Appeals ruled [PDF].  The government’s conduct did not “go beyond the bounds” of what has been considered acceptable in previous cases involving similar “reverse stings.”

“The ATF targeted individuals who had already demonstrated an interest in committing robberies, and did little more than ‘set the ‘bait’’ by inventing a fictitious cocaine stash house they could rob. Once the bait was set, Defendants ‘responded with enthusiasm.'”

“They planned nearly every detail of the robbery without assistance, including how many men they would bring, what weapons they would use, how they would dress, how they would break into the stash house, how they would restrain any guards, where they would hide after the robbery, and where they would sell the stolen cocaine,” the court added.

It also declared that defendants had “provided the guns, disguises, and zip ties necessary for them to carry out the robbery according to the plans they made. The government’s conduct here did not ‘violate fundamental fairness or shock the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.'”

However, the court stated, “like the district court,” it questions “the wisdom of the government’s expanding use of fake stash house sting operations.” But it believed the court was bound by previous decisions holding that sting operations of this nature “do not violate due process and cross the line into outrageous government conduct.”

The ruling stemmed from a request by federal prosecutors to reinstate charges against two men who had drug conspiracy and robbery conspiracy charges dropped after a district judge ruled the government engaged in outrageous government conduct.

Judge Otis Wright ruled on March 10 of this year [PDF], “The government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the government’s actions outrageous.”

Cedrick Marquet Hudson, Joseph Cornell Whitfield and Antuan Duane Dunlap were arrested while they were waiting in a fake safe house provided by the government with weapons. Just before they were to go rob an imaginary stash house that an ATF special agent had claimed had kilograms of cocaine of “pure ass coca” and “no bullshit cocaine.”

During oral argument, Judge William Fletcher said to Assistant US Attorney Mark Yohalem, “I think the government is wasting resources. I think it is encouraging them to commit crimes they otherwise wouldn’t commit.”

“And you are protecting the stash houses and then, after we imprison these guys, we’ve got to pay for their imprisonment. I think it’s a totally misguided policy. Now, the law is the law and I’m going to follow it. But I think you guys are making a mistake.”

One of the main issues raised in Wright’s decision stemmed from how economic coercion is used in these “reverse sting” operations.

“One cannot turn a blind eye to the economic coercion inherent in a fake stash house case like this. The government essentially targets people who are poor and have distorted moral compasses. As Hudson commented in a postarrest interview, “If you tell 3 broke dudes there’s 20 birds [kilograms of cocaine], what do you think’s gonna happen?” Dunlap’s ‘willingness’ to participate is just as consistent with Dunlap being ‘broke’ and in need of cash as it is with his ‘propensity to commit robberies’—let alone his propensity to commit home invasion or stash house robberies.”

Fletcher seemed to agree with Wright. “You guys are dragging a half million dollars through a poor neighborhood,” he said.

Sonia Chahin, Whitfield’s attorney, argued, “Because the government sets the parameters of the crime, they have the ability to remove the obstacles that usually face defendants in these types of cases and we end up in a situation where a defendant is facing a sentence, which really is grossly disproportionate to his own culpability or the types of crimes that he has the ability to commit.”

Also, during oral argument, Judge A. Wallace Tashima questioned the fact that the government is protecting an imaginary stash house from a robbery crew, which is put together by the government.

Unfortunately, for Dunlap and Wright who were subjected to this corrupt law enforcement practice, the appeals court judges felt there was nothing they could do, given previous cases. They shared their objections but threw up their hands believing they had to allow the charges against the men to be reinstated. They did not think it was their role to issue a decision that would force the ATF to stop using these type of stings.

CommunityFDL Main BlogThe Dissenter

Federal Appeals Court Rules ATF ‘Reverse Stings’ Do Not Constitute ‘Outrageous Government Conduct’

A federal appeals court has ruled, despite its previously expressed objections, that a district court was wrong to rule that a Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) “reverse sting” operation involving an imaginary cocaine stash house did not involve or constitute “outrageous government conduct.”

“We have previously held that similar reverse-sting operations, if properly conducted, are a permissible law enforcement tactic,” the Ninth Circuit Court of Appeals ruled [PDF].  The government’s conduct did not “go beyond the bounds” of what has been considered acceptable in previous cases involving similar “reverse stings.”

“The ATF targeted individuals who had already demonstrated an interest in committing robberies, and did little more than ‘set the ‘bait’’ by inventing a fictitious cocaine stash house they could rob. Once the bait was set, Defendants ‘responded with enthusiasm.'”

“They planned nearly every detail of the robbery without assistance, including how many men they would bring, what weapons they would use, how they would dress, how they would break into the stash house, how they would restrain any guards, where they would hide after the robbery, and where they would sell the stolen cocaine,” the court added.

It also declared that defendants had “provided the guns, disguises, and zip ties necessary for them to carry out the robbery according to the plans they made. The government’s conduct here did not ‘violate fundamental fairness or shock the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment.'”

However, the court stated, “like the district court,” it questions “the wisdom of the government’s expanding use of fake stash house sting operations.” But it believed the court was bound by previous decisions holding that sting operations of this nature “do not violate due process and cross the line into outrageous government conduct.”

The ruling stemmed from a request by federal prosecutors to reinstate charges against two men who had drug conspiracy and robbery conspiracy charges dropped after a district judge ruled the government engaged in outrageous government conduct.

Judge Otis Wright ruled on March 10 of this year [PDF], “The government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the government’s actions outrageous.”

Cedrick Marquet Hudson, Joseph Cornell Whitfield and Antuan Duane Dunlap were arrested while they were waiting in a fake safe house provided by the government with weapons. Just before they were to go rob an imaginary stash house that an ATF special agent had claimed had kilograms of cocaine of “pure ass coca” and “no bullshit cocaine.”

During oral argument, Judge William Fletcher said to Assistant US Attorney Mark Yohalem, “I think the government is wasting resources. I think it is encouraging them to commit crimes they otherwise wouldn’t commit.” (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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