Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U NITED S TATES OF A MERICA , No. 11-10036 Plaintiff-Appellee , D.C. No.
v. 2:09-cr-01040-MHM-4 C ORDAE L. B LACK ,
Defendant-Appellant . U NITED S TATES OF A MERICA , No. 11-10037 Plaintiff-Appellee , D.C. No.
v. 2:09-cr-01040-MHM-6 A NGEL M AHON ,
Defendant-Appellant . U NITED S TATES OF A MERICA , No. 11-10039 Plaintiff-Appellee , D.C. No.
v. 2:09-cr-01040-MHM-2 K EMFORD J. A LEXANDER ,
Defendant-Appellant . U NITED S TATES OF A MERICA , No. 11-10077 Plaintiff-Appellee D.C. No.
v. 2:09-cr-01040-MHM-3 *2 T ERRANCE L. T IMMONS ORDER DENYING
Defendant-Appellant . PETITIONS FOR PANEL REHEARING AND PETITIONS FOR REHEARING EN BANC
Filed May 2, 2014
Bеfore: John T. Noonan, Jr., Susan P. Graber, and Raymond C. Fisher, Circuit Judges. Order;
Dissent by Judge Reinhardt
SUMMARY [*]
Criminal Law
The panel denied petitions for panel rehearing, and denied petitions for rehearing en banc on behalf of the court, in cases arising out of a reverse sting operation in which an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house.
Judge Noonan voted to grant the petitions for panel rehearing and recommended granting the petitions for rehearing еn banc.
Judge Reinhardt, joined by Chief Judge Kozinski, dissented from the denial of rehearing en banc. He wrote that *3 the majority opinion sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable. [*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ORDER
Judge Noonan has voted to grant the petitions for panel rehearing and recommended grаnting the petitions for rehearing en banc. Judges Graber and Fisher have voted to deny the petitions for panel rehearing. Judge Graber has voted to deny the petitions for rehearing en banc and Judge Fisher has so recommended.
The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f).
Appellant Cordae L. Black’s petition for rehearing en banc (No. 11-10036), filed November 5, 2013, is DENIED .
Appellant Angel Mahon’s petition for panel rehearing and rehearing en banc (No. 11-10037), filed January 6, 2014, is DENIED .
Appellant Kemford J. Alexander’s petition for panel rehearing and rehearing en banc (No. 11-10039), filed January 6, 2014, is DENIED .
Appellant Terrance L. Timmons’ petition for panel rehearing and rehearing en banc (No. 11-10077), filed November 6, 2013, is DENIED .
Judge Reinhardt’s dissent from denial of rehearing en banc is filed concurrently with this Order.
Judge REINHARDT, with whom Chief Judgе KOZINSKI joins, dissenting from the denial of rehearing en banc:
The Black cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values. An undercover government agent in Phoenix sent a paid confidential informant (CI) to randomly recruit “bad guys” in a “bad part of town” to help rob a non-existent stash house. While trolling in a bar, the paid CI successfully tempted a randomly- selected person to participate in the (fictional) crime by offering him the opportunity to оbtain a huge financial benefit. After the CI put the participant in touch with the government agent, the agent urged the participant to bring others into the plot, played the principal role in devising and executing the imaginary crime, and then walked the defendants through a script that ensured lengthy prison sentences for committing a crime that did not exist.
The Black cases require us to address the limits on how our government may treat its citizens. They pose the question whether the government may target poor, minority neighborhoods and sеek to tempt their residents to commit crimes that might well result in their escape from poverty. Equally important, these cases force us to consider the continued vitality of the outrageous government conduct doctrine itself. The majority opinion decides all of these issues incorrectly. Further, despite its claims to the contrary, the majority’s reasoning does virtually nothing to caution the government about overreaching. Instead, it sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable. I therefore dissent from the court’s decision not to rehear these cases en banc. *5 6 U NITED S TATES V . B LACK
I
The facts are undisputed.
See United States v. Black
The entire operation was, of course, a fiction. Agent Zayas had created an elaborate crime-script and the defendants had followed it under his sustained and careful supervision. All Agent Zayas had to do was send his CI to a “bad” part of town in search of “bad” guys, leaving the choice of targets entirely to his CI’s prejudices and intuitions. Sure enough, after testing a number of people to see if they would be willing to commit a crime that would allow them to make a great deal of money, the CI had his first success. From there on the government’s scheme proceeded as planned.
II
The Black cases present important questions about our constitutional values. As we have long recognized, the Due Process Clause requires us to dismiss the indictment in “extreme cases in which the government’s conduct violates fundamental fairness.” United States v. Stinson , 647 F.3d 1196, 1209 (9th Cir. 2011) (citation omitted). In other words, a conviction must fall where “the conduct of law enforcement agents is so outrageous that due proсess principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell , 411 U.S. 423, 431–32 (1973). Here, the government’s conduct ran afoul of several fundamental constitutional principles and, thus, the convictions cannot stand.
One of the most serious problems with the law
enforcement tactics used in the
Black
cases is that they
present a direct threat to the fundamental principle of racial
equality. It is deeply disturbing that Agent Zayas sent his
paid CI to look for “bad guys” in a “bad part of town,” i.e. in
a minority neighborhood. In an age of widely-reported
unequal enforcement of the criminal laws, both at the state
and federal levels, the sort of assignment given to the CI is an
open invitation to racial discrimination—especially given the
complete absence of any effort by Agent Zayas to aim the
operation at known or suspected criminals.
See, e.g.
,
Floyd
v. City of New York
, 959 F. Supp. 2d 540, 560 (S.D.N.Y.
2013),
appeal dismissed
(Sept. 25, 2013) (Scheindlin, J.)
(finding discriminatory enforcement by police of stop and
frisk policies in New York City); Michelle Alexander,
The
New Jim Crow: Mass Incarcеration in an Age of
Colorblindness
9 (2010); Bruce Western,
Punishment and
Inequality in America
3 (2006). The manifest danger of
racial discrimination inherent in the law enforcement tactics
used here is an important part of why “random,” suspicionless
dragnets that test people for their willingness to break the law
are offensive to the Constitution.
Cf. United States v.
Armstrong
,
A similar analysis also applies to socio-economic
discrimination.
Cf. Little v. Streater
, 452 U.S. 1 (1981);
Roberts v. LaVallee
,
Bd. of Elections
,
conduct, setting up a fictitious crime and arresting the criminals as they begin to carry out what they believe is a real crime.” Black , 733 F.3d at *8 313 n.1.
10 U NITED S TATES V . B LACK Justice (2010). These young men may yet become productive, successful members of society, or their lives may be forever changed for the worse should they succumb to the government’s blandishments.
The latter scenario is particularly likely in these difficult
times of swiftly rising economic inequality and alarming
levels of unemployment.
See
Joseph Stiglitz,
The Price of
Inequality: How Today’s Divided Society Endangers Our
Future
(2013). According to one econоmist, American
income inequality has “been increasing steadily since the
1970s, and now has reached levels not seen since 1928.”
Drew Sesilver,
U.S. Income Inequality, On Rise For Decades,
Is Now Highest Since 1928
, Pew Research Center (Dec. 5,
2013). Many other studies confirm a vast expansion in
inequality.
See, e.g.
, Estelle Sommeiller & Mark Price,
The
Increasingly Unequal States of America
, Economic Policy
Institute (2014);
Inequality, Growing Apart
, Economist (Sept.
21, 2013). That disparity translates into many other
inequalities in American life, including in the criminal justice
system.
See, e.g.
, David Cole,
No Equal Justice: Race and
Class in the American Criminal Justice System
8 (1999)
(“Police officers routinely use methods of investigation and
interrogаtion against members of racial minorities and the
poor that would be deemed unacceptable if applied to more
privileged members of the community.”). Under the present
economic circumstances, it is more important than ever to
recall that reverse sting operations like the one we consider
here are perilous to freedom, especially when they are aimed
at the poorest amongst us and backed by the promise of
immediate wealth. Just as “the Constitution doеsn’t prefer
the rich over the poor,”
United States v. Pineda-Moreno
These concerns of fairness and equality are heightened by
the pressing threat that these sorts of extraordinary tactics
pose to liberty. The government verges too close to tyranny
when it sends its agents trolling through bars, tempts people
to engage in criminal conduct, and locks them up for
unconscionable periods of time when they fall for the scheme.
Certainly, such tactics create a relationship between
government and governed at odds with the premises of our
democracy—a relationship more like that depicted in George
Orwell’s
1984
or Philip K. Dick’s
The Minority Report
.
[4]
As
Justice Sotomayor has warned, “[a]wareness that the
Government may be watching chills associational and
expressive freedoms” and “may alter the relationship between
citizen and government in a way that is inimical to
democratic society.”
United States v. Jones
,
use of such law enforcement practices would chill the exercise of many of our liberties.
In this era of mass incarceration, in which we already lock
up more of our pоpulation than any other nation on Earth, it
is especially curious that the government feels compelled to
invent fake crimes and imprison people for long periods of
time for agreeing to participate in them—people who but for
the government’s scheme might not have ever entered the
world of major felonies. Of course, the government also
controls the (often extraordinarily long) amount of time that
its targets spend in prison after reverse sting operations, as it
*10
can specify the amount of drugs involved in the fake
conspiracies.
See United States v. Kindle
,
Whatever the motivation for the law enforcement conduct
under review here and however effective that conduct may be
at leading to the arrest of actual or potential criminals, the
Constitution dоes not allow the tactics employed by the
government.
Cf. Maryland v. King
,
Fundamental principles of justice place the tactics used by
the government in the
Black
cases squarely out of bounds.
See Greene v. United States
,
III
Pre-
Black
precedent construed
the constitutional
command regarding outrageous government conduct in a
wholly different manner than does the majority. In case after
case, we remarked that the government violates the
Constitution when it uses artifice to cause a crime and to
shape the nature and planning of that crime while targeting
people who are not already known to be involved in a
continuing series of similar crimes.
See, e.g.
,
United States
v. Williams
, 547 F.3d 1187, 1199 (9th Cir. 2008);
United
States v. Bonanno
,
The majority, recognizing the force of these arguments, repeatedly concedes that the government’s conduct was, at best, of doubtful validity under our precedents. It nonetheless upholds the law enforcement tactics by inventing a new, nebulous six-factor test for outrageous government conduct. In its analysis, the majority places seemingly controlling weight on two factors that have never before played a significant role in our doctrine: (1) boasting by the defendants abоut their prior criminal activity, none of which was ever confirmed by the government during the reverse sting operation; and (2) unsupported assertions by the government that it deemed this kind of operation to be more effective at fighting stash house robberies than the traditional means of doing so. [6] While purporting to adhere to precedent, this The majority also suggests that the government’s conduct was not outrageous because Agent Zayas did not exercise complete control over every aspeсt of the reverse sting. Our cases, however, have never required
U NITED S TATES V . B LACK 15 reasoning takes a significant step beyond the limits on government conduct that we have previously described, opening the door to conduct that the Constitution does not allow.
The panel first errs by asserting that what may have been
pure puffery by Simpson and Black about experience with
crime justified the government’s conduct. Before the
Black
cases, we insisted that the government use such tactics only
against known or suspected criminals, pеrsons for whom, at
the very least, there is reasonable cause for suspicion.
See,
e.g.
,
United States v. Gurolla
,
upholding police conduct where, by its own description, “the government
created the proposed crime, initiated contact with the defendants through
the CI’s approach at the Glendale bar, and set the bait—all without any
previous individual suspicion—or even knowledge—about the defendants’
criminal history or activities.”
Black
,
The panel majority also errs in relying uncritically on the government’s professed need for the use of its tactic. The government may not engage in outrageous conduct that violates the Due Process Clause merely because it asserts that doing so will advance law enforcement goals. This is a familiar rule in our criminal procedure jurisprudence. Our nation has spent decades engaged in a so-called “War on Drugs” and, for just as long, has struggled mightily to combat narcotics trafficking. Nonetheless, we have never held that the difficulties of preventing narcotics crime justify or excuse constitutional violations—and we should not do so now. Inevitably, that logic points the way to a string of government affidavits insisting that one or another hitherto illegal tactic must be upheld as important tо the achievement of law enforcement objectives. Further, while reverse sting operations may sometimes be a useful tool in the police arsenal, the majority does not explain why these operations would be inadequate if confined to targets known or suspected to be involved in ongoing criminal activity. It is both extreme and implausible to assert that the only solution to narcotics related crime is random good-citizenship tests of people who look like “bad guys” in a “bad part of tоwn.”
Ultimately, the most dangerous aspect of the majority opinion is that it virtually eliminates constitutional limits on outrageous government conduct. The majority reports that it is “troubled” and “concerned,” that “the risks we have identified in such a government-created fictional operation are not to be taken lightly,” but that other considerations play some unspecified role in helping to “mitigate[]” those worries. It justifies this result by emphasizing that it is looking to the totality of the circumstances. If ‘totality of the circumstancеs’ is to have any meaning at all, however, we cannot let each panel select its own “factors,” whether listed in prior cases or not, and then conclude that in light of the factors it has chosen the totality of the circumstances is not *14 enough to render the government’s conduct outrageous. That is particularly true where, as here, on an objective analysis of the six factors distilled from our prior cases by the panel, the first five support a finding of a constitutional violation and the sixth simply misstates our prior law. Under the panel’s approach there would never be limits established on the government’s flouting of the fundamental rights of its citizens. In fact, its reasoning could easily be invoked in support of similar reverse stings that result in the conviction of individuals who do not brag of prior criminal experience and who lack any criminal history at all. Thus, while the defendants here may truly be bad guys, the tactics and doctrine the majority endorses pose a threat to constitutional values that extend far beyond the facts of this particular reverse sting.
The true lesson of the Black cases is that judges may express concern about shocking police tactics, but will ultimately uphold them—and that the outrageous government conduct doctrine has little or no continued vitality in this Circuit. We should therefore have reheard this case en banc to make clear what our pre- Black precedent already states: the law enforcement tactics used here are unacceptable under the Constitution.
IV
As Judge Noonan warns in his dissent, “Today, our court
gives our apрroval to the government tempting persons in the
population at large currently engaged in innocent activity and
leading them into the commission of a serious crime, which
the government will then prosecute.”
See Black
,