FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRANDON HULLABY,

Defendant-Appellant.

No. 11-10118

D.C. No.

2:09-cr-01406-

SRB-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRANDON HULLABY,

Defendant-Appellant.

No. 11-10170

D.C. No.

2:09-cr-01406-

SRB-3

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted March 11, 2013

Withdrawn From Submission

Resubmitted November 1, 2013

San Francisco, California
2 UNITED STATES V. HULLABY

Filed December 4, 2013

Before: J. Clifford Wallace, M. Margaret McKeown,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Wallace

SUMMARY*

Criminal Law

Affirming a conviction, the panel rejected the defendant’s

contention that the government engaged in outrageous

conduct during the investigation that led to the defendant’s

arrest.

The panel explained that neither the fact that a

government informant had previously committed crimes, nor

that the informant was trying to reduce his future criminal

liability, satisfies the defendant’s burden of showing that the

government’s use of the informant was so outrageous as to

violate the universal sense of justice.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. HULLABY 3

COUNSEL

Jon M. Sands, Federal Public Defender, District of Arizona;

Daniel L. Kaplan (argued), Assistant Federal Public

Defender, Phoenix, Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, District of

Arizona; Mark S. Kokanovich, Deputy Appellate Chief;

Dominic Lanza (argued), Assistant United States Attorney,

Phoenix, Arizona, for Plaintiff-Appellee.

OPINION

WALLACE, Circuit Judge:

Brandon Hullabyappeals from his judgment of conviction

for conspiracy to possess with intent to distribute more than

five kilograms of cocaine under 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(ii) and possession of a firearm in furtherance of the

conspiracy under 18 U.S.C. § 924(c)(1)(A)(i). Hullaby

objects to various trial rulings by the district court. Here, we

consider only his contention that the government engaged in

outrageous conduct during the investigation that led to

Hullaby’s arrest. In a separately filed unpublished

disposition, we consider his remaining arguments.

Hullaby filed a timely notice of appeal. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Hullaby’s outrageous conduct claim hinges on the

character of a government informant named Pablo Cortina. 
4 UNITED STATES V. HULLABY

Accordingly, we begin by considering Cortina’s criminal

history, insofar as it forms the basis of Hullaby’s claim.

Several years before the government investigation that

led to Hullaby’s arrest, Cortina belonged to a group of

criminals who perpetrated a series of home invasions. The

group dressed in law enforcement uniforms when raiding

homes, and used a stolen law enforcement battering ram to

break down locked front doors. Carrying AK-47s, shotguns,

and other weapons, they would subdue and bind any

occupants present, and then abscond with their possessions. 

Cortina was named in a 115-count indictment, and he knew

that he faced the possibility of spending the rest of his life in

prison. In hope of reducing his sentence, Cortina informed on

his associates. Due to his cooperation, he was allowed to

plead guilty to only one felony, and was sentenced to four

years of probation and released from jail.

Less than a month after his release, Cortina began to steal

merchandise from his employer. A supervisor discovered

Cortina’s theft and called the police, at which point Cortina

fled. Fearful that his probation violation would send him to

prison for an extended period, and that he could face his old

associates there, he contacted the detective with whom he had

worked previously and offered to disclose more information

about new home invasions in the area.

After meeting with him, and over the objection of

Cortina’s probation officer, agents of the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) registered Cortina

as a confidential informant. The ATF then used Cortina in

the “reverse sting” operation in Phoenix, Arizona that caught

Hullaby. In this operation, undercover ATF agents, working

with Cortina, met with Hullaby and others to plan and carry
UNITED STATES V. HULLABY 5

out a robbery of a fictional cocaine stash house. Hullaby’s

part in the plan was to enter the stash house, along with three

others, and subdue the guards that the ATF agents said would

be present.

On the appointed day, the ATF agents, Cortina, and the

other conspirators met in a parking lot from which they were

supposed to proceed to the stash house. As the participants

prepared to leave, one of the agents gave a signal and ATF

personnel arrested the conspirators.

II.

We review de novo the district court’s conclusion that the

government did not violate Hullaby’s due process rights

through outrageous conduct. United States v. Smith, 924 F.2d

889, 897 (9th Cir. 1991). “For a due process dismissal, the

[g]overnment’s conduct must be so grossly shocking and so

outrageous as to violate the universal sense of justice.” Id.

This is “an extremely high standard.” Id. Indeed, as we have

recently observed, there are “only two reported decisions in

which federal appellate courts have reversed convictions

under this doctrine.” United States v. Black, —F.3d —, 2013

WL 5734381, at *5 (9th Cir. Oct. 23, 2013) (citing United

States v. Twigg, 588 F.2d 373 (3d Cir. 1978) and Greene v.

United States, 454 F.2d 783 (9th Cir. 1971)).

Here, Hullaby contends that the government’s conduct

was outrageous, insofar as the government collaborated with

“a repeat violent home-invader [Cortina] whose motivation

in spurring the government to create this fictional offense was

to continue to avoid accountability for his own heinous

crimes.” In United States v. Simpson, 813 F.2d 1462 (9th Cir.

1987), we considered a similar argument. In that case, a
6 UNITED STATES V. HULLABY

confidential informant, while working to help the police, was

also engaging in prostitution and using heroin. Id. at

1469–70. The confidential informant had also been arrested

on “numerous” previous occasions. Id. at 1469. The district

court had dismissed the indictment, in part because the

government knew about these activities and arrests and

nonetheless continued to use the informant. Id. at 1464.

We held that this state of affairs did not “raise[] due

process concerns,” because “[i]t is unrealistic to expect law

enforcement officers to ferret out criminals without the help

of unsavory characters.” Id. at 1470. Thus, we concluded

that the mere fact that a confidential informant “continued to

use heroin and engage in prostitution during [an]

investigation” did not “oblige the [government] to stop using

her as an informant.” Id.

Likewise, here, the fact that Cortina had engaged in past

crimes does not raise due process concerns about the

government’s use of him as a confidential informant in its

investigation. Nor does the nature of Cortina’s past crimes

render the government’s conduct “outrageous.” Indeed, it

was preciselybecause of his past experience as a criminal that

he was useful to the ATF in its efforts to minimize the risks

inherent in apprehending groups who were engaging in home

invasions. We do not require the government to enlist a

person with no criminal experience to help with the

apprehension of a group of hardened criminals.

Similarly, it is not shocking that Cortina was cooperating

out of self-interest. Id. at 1469 (observing that it is “common

practice for the government to reduce or drop charges against

persons who cooperate with law enforcement officials in the

prosecution of others”). We do not require the government
UNITED STATES V. HULLABY 7

to recruit solely informants who will work in a spirit of

altruism for the good of mankind.

It may be surprising that Cortina was given only four

years of probation by the state court after being charged with

very serious crimes. However, we are not reviewing his state

court sentence for “outrageousness” here. Rather, we

consider whether the government’s use of Cortina in

Hullaby’s case was so outrageous as to “violate the universal

sense of justice.” Smith, 924 F.2d at 897. Neither the fact

that Cortina had previously committed crimes, nor that he

was trying to reduce his future criminal liability, satisfies that

heavy burden.

In sum, we reiterate our conclusion in Simpson that

the due process clause does not give the

federal judiciary a chancellor’s foot veto over

law enforcement practices of which it [does]

not approve. Rather, our Constitution leaves

it to the political branches of government to

decide whether to regulate law enforcement

conduct which may offend some fastidious

squeamishness or private sentimentalism

about combatting crime too energetically, but

which is not antithetical to fundamental

notions of due process.

813 F.2d at 1468 (internal citations and quotation marks

omitted).

AFFIRMED.