2:12-cr-00435
D. Nev.Sep 10, 2013Background
- Defendant David Sapper posted an explicit personal ad on Craigslist and arranged to meet someone he believed was a 14-year-old girl; the responder was an undercover Henderson PD detective.
- Sapper was arrested after circling the agreed meeting place and was indicted for coercion and enticement (18 U.S.C. § 2422(b)) and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)).
- Sapper moved to dismiss the indictment, arguing the sting operation constituted outrageous government conduct in violation of due process.
- The Magistrate Judge recommended denying the motion; Sapper objected, arguing (1) Bonanno’s five-part list is conjunctive, (2) police needed indicia of illegality before targeting him, and (3) ancillary firearm charge should be dismissed as fruit of alleged misconduct.
- The district court conducted a de novo review, adopted the Magistrate’s Findings and Recommendation, overruled Sapper’s objections, and denied the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bonanno creates a conjunctive five-part test rendering the sting operation per se invalid | Government: Bonanno’s items are non-exclusive guideposts; totality governs outrageous-conduct analysis | Sapper: Bonanno’s five items are conjunctive; all must be met or government conduct is unacceptable | Court: Bonanno is guidance within a totality-of-the-circumstances test, not a conjunctive checklist; overruled Sapper |
| Whether government must have indicia/reasoned grounds before targeting a suspect with undercover operations | Government: No constitutional requirement for ‘reasoned grounds’ to begin undercover investigations | Sapper: Police should need some indicia of illegality before targeting an apparently lawful actor | Court: Ninth Circuit rejects a reasoned-grounds requirement; Luttrell en banc and subsequent decisions foreclose Sapper’s claim |
| Whether the specific police conduct here was so conscience-shocking as to violate due process | Government: Operation merely presented an opportunity; Sapper initiated and drove criminal conduct | Sapper: Posting lacked outward indication of seeking minors; sting was outrageous to target him | Court: Facts show Sapper actively solicited and escalated sex with a person he believed to be 14; conduct not outrageous under the high due-process standard |
| Whether evidence supporting felon-in-possession charge is subject to exclusion as fruit of alleged outrageous conduct | Government: Because no due-process violation occurred, exclusionary rule does not apply | Sapper: Ancillary firearm charge should be dismissed if underlying sting was unconstitutional | Court: No outrageous conduct found, so exclusionary rule not triggered; firearm-evidence challenge preserved for other non-outrageous-conduct warrant issues |
Key Cases Cited
- United States v. Bonanno, 852 F.2d 434 (9th Cir. 1988) (discusses law-enforcement methods acceptable in undercover operations)
- United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986) (traces outrageous-conduct doctrine and provides non-exhaustive guideposts)
- United States v. Mayer, 503 F.3d 740 (9th Cir. 2007) (outrageous-conduct touchstone: shocking to universal sense of justice)
- United States v. Russell, 411 U.S. 423 (U.S. 1973) (fundamental fairness standard for outrageous government conduct)
- Gurolla v. United States, 333 F.3d 950 (9th Cir. 2003) (due-process analysis for outrageous government conduct)
- United States v. Luttrell (en banc), 923 F.2d 764 (9th Cir. 1991) (rejects a reasoned-grounds requirement for undercover investigations)
- United States v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993) (applies Luttrell to reject targeting-without-reason claim)
- United States v. Driscoll, 852 F.2d 84 (3d Cir. 1988) (investigation commenced without probable cause does not bar convictions of those who rise to bait)
- United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (rejects a ‘‘reasonable basis’’ test for initiating undercover investigations)