F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee ,

v

.
B R A N D O N H U L L

A B Y , Defendant-Appellant

. N o. 11-10118

D.C. No. 2:09-cr-01406- SRB -3

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee ,

v

.
B R A N D O N H U L L

A B Y , Defendant-Appellant

. N o. 11-10170

D.C. No. 2:09-cr-01406- SRB -3

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Susan R. B olton, District J udg e, Presiding
Arg ued and Submitted March 11, 2013 W ithdrawn F rom Submission Resubmitted November 1, 2013 San F rancisco, CaliforniaU N I T E D S T A T E S V

. H U L L A B Y 2

F iled December 4, 2013

B efore: J . Clifford W allace, M. Marg aret McKeown, and Sandra S. I kuta, Circuit J udg es. Opinion by

J udg e W allace

SUMMARY *

Crim inal Law
Affirming a conviction, the panel rejected the defendant’s contention that the g overnment e ngag ed in outrag eous conduct during th e investig ation that led to the defendant’s arrest.

The p anel ex plained that neither the f a c t t hat a g overnment informant had previously committed crimes, nor that the informant was try ing to reduce his future c ri m i n al liability , satisfies the defendant’s burden of showing that the go v e r n m ent’s use of the informant was so outrag eous as to violate the universal sense of justice.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. H U L L A B Y 3

COUNSEL

J on M. Sands, F ederal Public Defender, District of Ariz o na; Daniel L

. Kaplan (arg ued), Assistant F ederal Public Defender, Phoenix , Ariz ona, for Defendant-Appellant.

J o h n S. L eonardo, United States Attorney , D istrict o f Ariz ona; Mark S. Kokanovich, Deputy Appellate C h i e f; Dominic L a

nz a (arg ued), Assistant United States Attorney , Phoenix , Ariz o na, for Plaintiff-Appellee.

OP INION

W A L L ACE, Circuit J udg e :

B r andon Hullaby appeals from h is judg me n t o f c o n v iction for c on s p i r acy to possess with intent to distribute more than five kilog rams of c ocaine under 21 U.S.C. §§ 8 4 1 ( a )( 1 ) a nd (b)(1)(A)(ii) and possession of a firearm in furtherance of the conspiracy u nd er 18 U.S.C. § 924(c)(1)(A)(i). Hullaby objects to various trial ruling s by the district court. Here, we consider only his contention that the g overnment eng ag e d in outrag eous conduct during the investig ation that led to Hullaby ’s arrest. I n a separate l y f iled unpublished disposition, we consider his remaining arg uments.
Hullaby filed a t i m e l y n otice of appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

. Hullaby ’s outrag eous conduct claim hing es on the character o f a g overnment informant n a med Pablo Cortina.U N I T E D S T A T E S V

. H U L L A B Y 4
According ly , we b eg in by considering Cortina’s criminal history , insofar as it forms the basis of Hullaby ’s claim.

Several y ears before t he g overnment investig ation that led to Hullaby ’s arrest, Co r tina belong ed to a g roup o f criminals who perpetrated a series of home invasions

. The g roup dressed in l a w enforcement uniforms when raiding homes, and used a stolen la w e n forcement battering ram to break down locked front doors. Carry ing AK-47s, shotg uns, and other weapons, they would subdue and b ind any occupan t s present, and then abscond with their possessions. Cortina was named i n a 115-count indictment, a nd he knew that he f aced the possibility of spending the rest of his life in prison. I n hope of reducing his sentence, Cortina informed on his associates. D ue to his cooperation, he w a s a l l owed to plead g uilty to only one felony , and was s e n t enced to four y ears of probation and released from jail.

L ess than a month after his release, Cortina beg an to steal merchandise from his employ er. A supervisor discovered Cortina’s theft and called the p olice, a t w h i c h point Cortina fled. F earful that h is probation violation would send him to prison for an ex tended period, and that h e could face h is old associates there, he contacted the detective with whom he h ad worked previously

and offered to disclose more information about new home invasions in the area.

After meet i n g w ith him, and over the objection o f Cortina’s probation officer, ag ents o f the B ureau of Alcohol, Tobacco, F irearms and Exp losives (ATF ) reg istered Cortina

as a confidential informant

. The ATF then used Cortina in the “ reverse sting ” operation in Phoenix , Ariz ona that caug ht Hullaby

. I n this o p eration, undercover ATF ag ents, w orking

w i t h Cortina, met with Hullaby and others to plan and ca r r yU N I T E D S T A T E S V

. H U L L A B Y 5

out a robbery of a f

i c t i onal cocaine stash house. Hullaby ’s part in the plan was to enter the stash house, along with three others, and subdue the g uards that the ATF ag ents said would be present.

On the app o i n t ed day , the ATF ag ents, Cortina, a nd the other conspirators met in a parking lot from which they were supposed to proc e e d t o the stash h ouse. As the participants prepared to leave, o ne of the ag e n ts g ave a sig na l a n d ATF personnel arrested the conspirators.

I I

.
W e review de novo the district court’s conclusion that the g overnment d id not vio l a t e Hullaby ’s due process rig hts throug h o utrag eous conduct. United States v. Smith , 9 24 F .2d 8 8 9 , 897 (9th Cir. 1991). “F or a due process dismissal, t h e [ g ] overnment’s conduct must be so g r o s s l y shocking and so
o u t r a g eous as to violate the universal sense of justice.” Id. This is “ an ex tremely hig h standard.” Id. I ndeed, as we have recently observed, there are “only tw o reported decisions in which f ederal appellate courts have r eversed con v ictions under this doctrine.” U

nited States v. Black , — F .3d —, 2013 W L 5734381, at *5 (9th Cir. Oct. 23, 2013) (c i t i ng United States v. Twigg , 588 F

. 2d 373 (3d C ir. 1978) and Greene v

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

Here, Hullaby contends that the g overnment’s conduct

was outrag eous, insofar as the g overnment collaborated with “a repeat violent home-invader [Cortina] whose motivation in spurring the g overnment to create this fictional offense was t o c ontinue to avoid accountability for his own hein o u s crimes.” I n United S

tates v

. S impson , 8 13 F .2d 1462 ( 9th Cir. 1987), w e c onsidered a similar arg ument. I n that case, aU N I T E D S T A T E S V

. H U L L A B Y 6

confidential informant, while working to help the p olice, was also eng ag in g in prostitution and u sing heroin. I d. at 1469–70. The confidential informant had also been arrested

on “numerous” previous occasions. Id. at 1469. The district court had dismissed the ind i c tment, in part because the g overnment knew about these a ctivities and a rrests a nd nonetheless continued to use the informant. Id. at 1464.

W e held that this state of affairs did not “rai s e [ ] d ue process concerns,” because “ [i] t is unrealistic to ex pec t l a w enforcement officers to ferret out criminals without the h elp of unsavory characters.” I d. at 1 470. Thus, w e c o ncluded that the mere fact that a confidential informant “continued to
use h eroin and en g a g e in prostitution during [an] investig ation” did not “oblig e the [ g overnment] to stop using her as an informant.” Id.

L ikewise, here, the fact that Cortina had eng ag ed in past crimes does n o t raise d u e process concerns about the g overnment’s use of him as a confident i a l informant in its investig ation. Nor does the nature o f C o r t ina’s past crimes render the g overnment’s conduct “outrag eo us.” I ndeed, it

was precisely because of h is past e x perience as a criminal that he was useful to th e AT F in its efforts to minimiz e the risks inherent in apprehending g r oups who were eng ag ing in home inva sions. W e do n ot r equire the g overnment to enlist a person with no criminal e x p e r ience to help with the apprehension of a g

roup of hardened criminals.
Similarly , it is not shocking that Cortina w as cooperating out of self-interest. Id. a t 1469 (observing that it is “common practice for the g overnment to reduce o r drop charg es ag ainst persons who c ooperate with law enforcement officials in the prosecution of others”). W e do not require the g overnmentU N I T E D S T A T E S V

. H U L L A B Y 7

to recruit solely in f

o r m an t s who will work in a spirit o f altruism for the g ood of mankind.

I t may be surprising that Cortina was g iven only four y ears o f probation by the state court after being charg e d with very serious crimes. However, we are not reviewing his state
c ourt sentence for “outrag eousness” here. Rather, w e consider whether the g o vernment’s use of Cortina in Hullaby ’s c ase was so outrag eous a s to “violate the universal

s e n s e of justice.” Smith , 924 F .2d a t 897. Neither the f a ct that Cortina h ad previously co m m itted crimes, nor that he

was try ing to reduce h is future criminal liability , satisfies that heavy burden.

I n sum, we reiterate our conclusion in Simpson that

the d ue process cl a u se d oes n ot g ive the federal judiciary a chancellor’s foot veto over law enforcement practic e s of which it [ does] not a pprove. Rather, our Constitution leaves it to the p olitical branches of g over nment to decide whether to reg ulate l a w enforcement conduct w hich may offend some fastidious squeamishness or private sentimentalism about combatting c rime too e nerg etically , but which is not antithetical to fundamental notions of due process.

813 F .2d at 1 4 6 8 (internal citations and quotation marks omitted).

AF F IRMED.