Argued and Submitted January 16, 2013 —San Francisco, California
Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding, D.C. Nos. 2:09-cr-01040-MHM-4, 2:09-cr-01040-MHM-6, 2:09-cr-01040-MHM-2, 2:09-cr-01040-MHM-3
Patricia A. Hubbard (argued), Phoenix, Arizona, for Defendant-Appellant Kemford J. Alexander.
Tara K. Hoveland (argued), South Lake Tahoe, California, for Defendant-Appellant Cordae L. Black.
Donald W. MacPherson (argued) and Bradley Scott MacPherson, The MacPherson Group, P.C., Phoenix, Arizona; Nathaniel K. MacPherson, The MacPherson Group, P.C., Encinitas, California, for Defendant-Appellant Angel Mahon.
Florence M. Bruemmer (argued), Anthem, Arizona, for Defendant-Appellant Terrance Timmons.
Ann Birmingham Scheel, Acting United States Attorney, Randall M. Howe, Deputy Appellate Chief, and Karla Hotis Delord (argued), Assistant United States Attorney, Phoenix, Arizona, for Plaintiff-Appellee (Nos. 11-10036 and 11-10039).
John S. Leonardo, United States Attorney, and Karla Hotis Delord (argued), Acting Deputy Appellate Chief, Phoenix, Arizona, for Plaintiff-Appellee (No. 11-10037).
Ann Birmingham Scheel, Acting United States Attorney, Randall M. Howe, Deputy Appellate Chief, and Theresa Cole Rassas, Assistant United States Attorney, Phoenix, Arizona, for Plaintiff-Appellee (No. 11-10077).
Before: John T. Noonan, Jr., Susan P. Graber, and Raymond C. Fisher, Circuit Judges.
The panel affirmed four defendants' convictions and sentences for conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense, 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.
The panel affirmed the district court's denial of the defendants' motion to dismiss for outrageous government conduct. The panel explained that although the initiation of the reverse sting operation 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 shocking as to violate the universal sense of justice.
The panel also affirmed the district court's rejection of the defendants' sentencing entrapment argument.
Dissenting, Judge Noonan wrote that the majority gives approval 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.
FISHER, Circuit Judge:
Defendants Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons were convicted of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense. They were arrested as part of a reverse sting operation set up in Phoenix, Arizona by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). An ATF undercover agent, working with a confidential informant, recruited the defendants to carry out an armed robbery of a (fictional) cocaine stash house. The defendants readily agreed, and in varying degrees participated in planning the robbery over several days. They were arrested as they were on their way to rob the supposed stash house.
Before trial, the defendants moved to dismiss the indictment, contending the fake robbery was the product of outrageous government conduct. After three days of hearings on the issue, the district court denied the motions in a thorough and thoughtful 26-page order, concluding that "[o]n balance, the government appears to have acted reasonably, " and its conduct was "plainly not so egregious as to shock the 'universal sense of justice.'" A jury convicted the defendants on both counts. Count one, for conspiracy, carried a statutory minimum sentence of 10 years.
At sentencing, the defendants argued the government was guilty of sentencing entrapment because it deliberately set an amount of cocaine in its fictional robbery to ensure the defendants would receive at least a mandatory minimum sentence of 10 years on the conspiracy count. The district court denied their requests to reduce the quantity of cocaine in calculating their sentences.
We agree with the district court, and 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, as we shall explain, the defendants have not met the "extremely high standard, " United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir. 1993), 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 sense of justice, " United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). We also affirm the district court's rejection of sentencing entrapnt.
Several years ago, the Bureau of Alcohol, Tobacco, Firearms and Explosives implemented Operation Gideon, conducting a series of undercover sting operations developed to find and arrest crews engaging in violent robberies of drug stash houses (which ATF denominates as "home invasions") in residential neighborhoods. As an alternative to planting fake drugs in a stash house and confronting the armed robbers once they broke into the house, ATF developed what it believed was a safer technique. ATF agents, working undercover, would describe a fictitious cocaine stash house to suspects, offering them the opportunity to plan and carry out an armed robbery of the stash house. Once the robbery plan was developed and the crew members were on their way to what they believed was a real armed home invasion, they were arrested. ATF decided to use this investigative technique in Phoenix, Arizona because of the level of violence and the number of kidnappings that had become associated with stash house robberies.
The investigation and arrest of the defendants here involved a confidential government informant (CI) and Agent Richard Zayas, an undercover ATF agent. ATF brought the CI from Miami to Phoenix (where he had never been) specifically to assist in reverse sting operations. This work was the CI's sole source of employment, for which the CI was paid $100 per day.
The CI's role was to "try and find some people that . . . are willing to go commit a home invasion." He was to talk to such individuals, tell them that a friend had all of the information about the home invasion and then set up a meeting between the individual and Agent Zayas. He testified that he found such individuals by "go[ing] to the bars" and "meet[ing] people" who he then approached about possibly becoming involved in such crimes. In doing so, he targeted bars in "a bad part of town, a bad bar, you know . . . bars where you've got . . . a lot of criminal activity." He was not instructed to look only for particular individuals, such as those who were already involved in an ongoing criminal operation or that he knew were about to commit a crime. Zayas would then meet with interested individuals "to determine whether or not they are actually involved in that type of crime" and provide details on the fictitious home invasion.
In July 2009, the CI went to a bar in Glendale, Arizona to meet people as part of his work with ATF. He approached a man named Curtis at the bar to see if he would be interested in doing a home invasion. Curtis was not interested but said he knew somebody who would be – Shavor Simpson, aka "Bullet." Curtis introduced the CI to Simpson, and the CI told Simpson he had a friend who "has some information on a house possibly with some dope in it." He asked Simpson whether he would be "interested in putting a crew together" to rob the house. Simpson agreed that he would do it, and the CI set up a meeting between Zayas and Simpson.
On July 16, 2009, Zayas, Simpson and the CI met in a car outside Simpson's workplace. Zayas proceeded to tell Simpson his cover story: He was a cocaine courier who transported drugs for a group of Mexican drug dealers and was unhappy with the pay he was receiving. He was interested in robbing the Mexican drug dealers as retribution for his low pay. Describing the modus operandi, Zayas told Simpson that at the beginning or end of each month, he would receive a call informing him that the drugs were ready for transportation at a particular house, and that he would have only 15 minutes to pick up the drugs or they would be moved to a new location. When he would enter the house, he would see two individuals, at least one of whom would be armed. One individual would go to a back room, obtain 6 to 7 kilograms of cocaine, give the drugs to Zayas and tell him where to take the drugs. Zayas also told Simpson that each time he did this, he could see anywhere from 22 to 39 kilograms of cocaine in the living room alone and that he did not know what might be in the back room, which contained more cocaine.
Zayas emphasized several times that he wanted to make sure the people Simpson involved in the proposed robbery have the "balls to go do it because this ain't no easy lick." He testified that, in relating the details regarding the fictitious stash house, he purposely chose details that demonstrated a particularly high potential for danger and violence to ensure that only individuals who "are truly involved in this type of crime" would agree to it and those who were not would back out.
Simpson told Zayas that the day before, he had called his "goons" who wanted to know whether "we gonna murc" the men inside the stash house or "we gonna rob" them, to which Zayas responded that he did not care. Simpson said that "real nigger shoot for kill he gotta be down with that shit homey" and that he and his "goons" are "ready" and "just waiting on the . . . say so." Simpson asked Zayas numerous times about "how many goons we gonna need." Each time, Zayas responded that he did not know and that it was Simpson's call.
Simpson said that he and one of his "goons" "did this shit already" but his friend "did ten years in prison" because "his home boy snitched." He told Zayas that he was "a four time felony dog" with "17 misdemeanors" consisting of "[d]rugs, guns, drugs, guns, drugs, guns, guns, drugs . . . that's all I been locked up for bro." He also said that if anyone snitched about the operation, whether it was one of his goons or someone on Zayas' side, "we'll have to murc [him]." He said that his "boy" had everything necessary to complete the robbery: "He got ski masks, he got a leather glove and he got his guns. He got a AK, he got a M16, he got a uh, a Desert Eagle, he got a Mac10, got a 45 Glock." He told Zayas, "Don't worry daddy you met a real Jamaican nigger, that's my family business, it's where I work at." Simpson suggested that they meet again soon, after he had a conversation withhis "goons and whoever gonna ride."
The second meeting with Agent Zayas took place on Sunday, July 26. This time, Zayas, the CI and Simpson were joined by Cordae Black, whom Simpson introduced as his "right hand soldier." Zayas repeated his cover story about being a disgruntled drug courier and what he knew about the fictitious stash house. Black proposed several robbery plans. He suggested that once Zayas was let into the stash house, Black and Simpson would run in right afterwards to take the occupants by surprise. He also mentioned the possibility of taking an occupant to the back room as a hostage to obtain the drugs that were there. Toward the end of the conversation, he told Zayas, "I got this shit down to a science man."
Simpson told Zayas that he and Black needed guns for the robbery and that they did not have any. Zayas said he did not have any either and that if he did, he would do the robbery himself. Black eventually said that getting "burners" (guns) should not be a problem.
When Black and Simpson told Zayas they intended to perform the robbery without any other crew members, Zayas questioned that decision, asking if they would be able to handle it or would need more people. He said the men in the stash house "ain't just gonna hand it to you." Black insisted that having a small crew would be better for taking the stash house by surprise. He told Zayas he had "just done this – I just done it a few times." Black and Simpson eventually said they would probably bring one more crew member.
Zayas told Black and Simpson that he would receive the next call about transporting cocaine in two days, on Tuesday, July 28. The group decided to meet again on July 27, and Zayas told Simpson and Black to bring whoever would be participating in the robbery. Simpson testified at trial that after the July 26 meeting with Black and Agent Zayas, he met with Black, Angel Mahon, Kemford Alexander and Aaron Marsh (who is not involved in this appeal) to further discuss the robbery.
The third meeting with Agent Zayas took place on July 27; Black, Simpson, Alexander, Mahon and Marsh were all present. Zayas asked whether everyone would be doing the robbery, to which Alexander responded, "Yeah." Zayas again repeated his cover story and the information he had about the fictitious stash house. Alexander asked Zayas how he wanted the robbery done. Zayas responded, "You tell me dude I mean this is your gig, I mean I don't know about this shit." Alexander asked Zayas what he wanted out of the robbery, to which Agent Zayas responded, "[I]t's an even split, bro, even split." The group made plans to meet the next day at noon. Simpson testified at trial that after the meeting, he and the other individuals who had met with Zayas went to Alexander's house to discuss the robbery. They discussed such items as what each person would do with his portion of the drugs, who would carry a gun and how many people would enter the stash house.
The next day, the group did not show up to meet Agent Zayas at noon. Zayas testified that he felt he was being watched and that the crew was conducting a surveillance of him. However, at about 12:25 p.m., as Zayas was about to leave, Black, Alexander, Marsh and Mahon pulled up in two vehicles, along with Terrance Timmons. Simpson did not show up. Zayas briefly spoke with the individuals in each vehicle, and Alexander introduced Timmons as his driver. Zayas told the crew he had rented a warehouse unit nearby where they should deliver his portion of the cocaine from the stash house and asked them to follow him there. Once the group arrived at the warehouse location, federal agents arrested the robbery crew. A search of the vehicles uncovered four loaded weapons in a hidden compartment. Each of the defendants was charged with and convicted by a jury of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense.
Standard of Review
We review de novo the district court's denial of a motion to dismiss an indictment due to outrageous government conduct. See Stinson, 647 F.3d at 1209. In doing so, we view the evidence in the light most favorable to the government, and we accept the district court's factual findings unless they are clearly erroneous. See United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003); United States v. Williams, 547 F.3d 1187, 1199 n.9 (9th Cir. 2008). We review for abuse of discretion the district court's decision not to use its supervisory powers to dismiss an indictment. See Stinson, 647 F.3d at 1209.
We review de novo the district court's interpretation of the Sentencing Guidelines. See United States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009). We review for abuse of discretion the district court's rejection of the defendants' sentencing entrapment argument. See United States v. Yuman-Hernandez, 712 F.3d 471, 473 (9th Cir. 2013). We review for clear error the district court's factual findings underlying ...