NOT RECOMMENDED FOR PUBLICATION File Name: 17a0585n.06 Nos. 15-3988, 15-3990, 15-3991, 15-4003, 15-4028

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. KENNETH FLOWERS; TERRANCE CHAPPELL; KALI ALEXANDER; RASHEAM NICHOLS; JUSTIN MAXWELL, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO OPINION

BEFORE: SUTTON and STRANCH, Circu it Judges; STEEH, District Judge PER CURIAM. This case is one in a long series of elaborate, nearly -identical sting operations conducted by the Bureau of Alcohol, T obacco, Firearms, and Explosives (“ATF”). In these operations, referred to as “stash house stings ,” an undercover agent recruits individuals to steal a large quantity of drugs from a house prot ected by an armed guard. The house, the drugs, and the guards, however, are all fi ctional—and would-be participan ts are arrested before they reach the invented location. Af ter such a sting operation, Kali Al exander, Terrance Chappell, Kenneth Flowers, Justin Maxwe ll, and Rasheam Nichols were arrested, tried, and convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine and using or carrying a firearm during and in relation to a drug conspiracy. The Defendants appeal their convictions and their senten ces on various grounds. We AFFIRM

.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-2- I. BACKGROUND The “stash house sting” that led to Defenda nts’ convictions was orchestrated by ATF Special Agent Richard Zayas. The ATF has speci fic protocols for conducti ng stings on fictional drug “stash houses,” and Zayas himself has made a career of coordinating the stings, having worked on or been involved with over 100 similar scenarios across the country. This was his first stash house sting in Cleveland. To identify a target for the sting, Zayas dire cted two informants, referred to as #2302 and #9097 (working for pay and to reduce a sentence, respectively) to go into the community and return with general information. Informant #2302 approached Alexander and discussed selling firearms, but the sale never occurred. Alexander later agreed to sell the informant ten grams of heroin. The informant brought up the idea of a potential robbery with Alexander, but this meeting was not recorded and Zayas did not know wh at was discussed. On the day of the heroin sale, both informants and Zayas met with Alexa nder, who sold them approximately 6.5 grams of heroin for $900 that was provided by the ATF. The meeting occurred in an undercover vehicle and was recorded. Zayas then proposed the idea of robbing a cocaine stash hous e to Alexander, presenting himself as a disgruntled drug courier who felt he was being treated unfairly. He specified that the house would have eight to nine kilograms of cocaine and be guardedby two men, one armed with a gun. Zayas discussed splitting the co caine 50/50 with Alexander and whoever else assisted with the robbery. The following week, Alexander brought Nichols to meet with Zayas, who explained the scenario to him. Zayas asked if Nichols knew what he was doing, and Nic hols indicated that he did. The next week, Alexander brought Maxwell to meet with Zayas, who again discussed theNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-3- details of the plan and asked if the men needed a car to use on the day of the robbery. They said that they did. On the day of the proposed robbery, Alexande r, Nichols, and Maxwell met the informant on the east side of Cleveland, bringing along Chappell and Flowers. The informant drove the men to meet Zayas at a CVS Pharmacy across to wn. On the video recording of the drive, Alexander is sitting in the front seat and the other four defendants are in the back; both Flowers and Nichols are holding firearms. When the vehi cle arrived at the CVS, Zayas entered the car and took approximately four minut es to describe the robbery to the men This was the first and only time he spoke with Flowers or Chappell. At trial, Zayas te stified that the Defendants spoke about the plan, asked him questions, and were a ttentive. He again to ld them that the house contained eight to nine kilograms of cocai ne and was guarded by two men, one with a gun. After the discussion, the informant drove the Defendants to a warehouse about three blocks away where they were arrested after exiting the car. Chappell ran and climbed a fence but soon surrendered to police at gunpoint. All of th e Defendants had firearms except Chappell, but Special Agent Daniel Forster testified that he heard and saw a firear m drop from Chappell’s person while he was running. On September 23, 2014, the Defendants were char ged in an eleven-coun t indictment. All five Defendants were charged with conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 (Count 2) and with using or carrying a firearm during and in relation to a drug conspi racy, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Counts 3–7). Alexander was charged with distributing 5.5 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1). Alexander and Nichols were charged with being felons in possession of ammunition, in violation of 18 U.S.C.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-4- § 922(g)(1) (Counts 8–9). Maxwell and Chappell were charged with being felons in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g) (Counts 10–11). Flowers had no criminal record. The Defendants moved for separate trials on th e basis that a joint trial would compromise their Sixth Amendment Confrontat ion Clause rights. Their moti on was denied. The Defendants also filed a pre-trial Motion to Preclude Sentence Enhancement, objecting to the ten year mandatory minimum sentence because it was the re sult of sentencing manipulation and thus violated due process. The district court indicat ed that this issue would be more appropriately raised at sentencing. The Defendants were tried together before a jury. The parties contested the amount of cocaine at issue in the conspiracy; the Defendants argued that their intention and agre ement was to take half of the cocaine and that the arbitrarily selected amount of fictional drugs constituted sentencing manipula tion. Zayas testified that the fictional amount of cocaine originated in a conversation with Special Agent Johnson and the local police department and that it was intended to mimic the av erage quantity in a Cleveland stash house. Zayas ha d not seen any documentation confir ming that number and Johnson was not able to point to any when he testified. During rebuttal closing argument, the prosecutor stated that every time jurors had been asked to consider a lower amount of cocaine, they were being “invi ted to violate [their] oath as jurors.” The Defendants moved for a mistrial, wh ich was denied. At the close of evidence, the Defendants moved for a judgment of acquittal, a nd renewed it after the defense rested. The Defendants were convicted on al l counts and, by Special Verdic t Form, the jury found that the amount of cocaine involved in the conspiracy was more than five kilograms, triggering a mandatory minimum sentence.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-5- At sentencing, the district c ourt overruled the Defendants’ sentencing manipulation and due process objections. Alexander was sentenced to concurrent terms of 151 months of imprisonment on Counts 1 and 2 and 120-months on Count 8, and a consecutive 60-month term on Count 3. Nichols was sentenced to concurre nt terms of 121 months of imprisonment on Count 2 and 120 months on Count 9, and a consec utive term of 60 months on Count 4. Maxwell was sentenced to concurrent terms of 121 months on Count 2 and 120 months on Count 10, and a consecutive term of 60 months on Count 5. Ch appell was sentenced to concurrent term of 121 months of imprisonment on Count 2 and 120 months on Count 11, and a consecutive term of 60 months on Count 6. Flowers was sentenced to 120 months on Count 2 and a consecutive term of 60 months on Count 7. The Defendants appeal their convictions and their sentences on various grounds. II. ANALYSIS A. The outrageous government conduct defense Alexander, Chappell, Maxwell, and Nichols chal lenge the district court’s denial of their motion to dismiss the indictment based on outrage ous government conduct. They argue that the Government’s conduct “created and encouraged the defendants’ commission of the offense by luring the impoverished . . . defendants with th e promise of a large payoff, making repeated requests for meetings over a short period of time, making repeated demands for their commitment to the conspiracy, suggesting and enabling their possession of firearms, by providing transportation via th e confidential informant to a pre-robbery meeting, and by providing them with a car to use for purposes of the robbery.” In examining whether the indictment could have been dismissed based on this defense, we review the district court’s conclusions of law de novo. United States v. Amawi , 695 F.3d 457, 483 (6th Cir. 2012).No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-6- Under the outrageous government conduct defe nse, government involvement in a crime may be “so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defe ndant was not entrapped.” United States v. Al Kassar , 660 F.3d 108, 121 (2d Cir. 2011). Under the defense, the gover nment’s conduct alone could bar prosecution, regardless of a defendant’s predisposition. United States v. Tucker , 28 F.3d 1420, 1422, 1424 (6th Cir. 1994). The outrageous government c onduct defense is distinct from the defense of entrapment, which focuses on a defendant’s inte nt or predisposition to commit the crime. Sherman v. United States , 356 U.S. 369, 372 (1958) (“To determine whether entrapment has been established, a line must be drawn between th e trap for the unwary innocent and the trap for the unwary criminal.”); Sorrells v. United States , 287 U.S. 435, 451 (1932).
In Tucker , we stated that “the re is no authority in this circuit which holds that the government’s conduct in inducing the commission of a crime, if ‘outrageous’ enough, can bar prosecution of an otherwise predisposed defenda nt under the Due Process Clause of the Fifth Amendment.” 28 F.3d at 1424. Thus, we have not adopted the due process defense of inducement. United States v. Warwick , 167 F.3d 965, 974 (6th. Cir. 1999) (“[W]e have consistently rejected defendants’ attempts to argue that the government’s conduct in inducing them to commit the crimes charged was so outrage ous as to deprive them of their constitutional rights.”). We therefore affirm the district court’ s denial of the motion to dismiss the indictment. B. The entrapment defense Flowers argues that his motion to dismiss should have been gran ted on indirect or vicarious entrapment grounds, and that his trial counsel was ineffective for failing to seek an entrapment jury instruction.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-7- 1. Vicarious or indirect entrapment Flowers argues that he lacked predisposition and that vicarious or indirect entrapment justifies dismissal because he had no prior reco rd, was employed, and was induced by his cousin. The Government counters that Flowers was pred isposed because he was not recruited by the Government, brought a loaded firearm the day of the robbery, did not expr ess hesitation, and did not experience repeated or persis tent Government solicitation. This Court reviews a district court’s refusal to dismiss an indictment for an abuse of discretion. United States v. Middleton , 246 F.3d 825, 841 (6th Cir. 2001). The defense of entrapment requires government inducement and a lack of predisposition to engage in the criminal activity. United States v. Poulsen , 655 F.3d 492, 502 (6th Cir. 2011). Indirect or vicarious entrapment occurs when “a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement.” United States v. McLernon , 746 F.2d 1098, 1108 (6th Cir. 1984) (quoting United States v. Valencia , 645 F.2d 1158, 1168 (2d Cir. 1980)). In McLernon , we noted the concerns involved when a private party serves as a thir d-party agent of the government, or when the parties have a “special relati onship” such that the “governmental pressure upon one member” can “overcome the will of another member to a greater degree by virtue of that relationship.” Id. at 1108–09. The Sixth Circuit has “explicitly c hosen not to adopt the doctrine of indirect entrapment,” Poulson , 655 F.3d at 502; however, we have “upheld the entrapment defense where the inducement is initiated by government official s or by private citizens acting as their agents upon their instructions or directions,” McLernon , 746 F.2d at 1109. Here there is no evidence that the Government used Alexander as a private agent in order to incriminate Flowers.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-8- Accordingly, the district court did not abuse its discretion in denying Flowers’s motion to dismiss. 2. Ineffective assi stance of counsel Flowers argues that his trial c ounsel was ineffective for failing to seek an entrapment jury instruction. This court reviews de novo a criminal defendant’s ineffective assistance of counsel claim, which is a mixed question of law and fact. Mallett v. United States , 334 F.3d 491, 497 (6th Cir. 2003). We do not addr ess these claims on direct appeal unless the “the existing record is adequate to assess properly the merits of the claim.” United States v. Hynes , 467 F.3d 951, 969 (6th Cir. 2006) (quoting United States v. Franklin , 415 F.3d 537, 555–56 (6th Cir. 2005)). “[I]n most cases a motion brought under § 2255 is pref erable to direct app eal for deciding claims of ineffective assistance.” Massaro v. United States , 538 U.S. 500, 504 (2003). Defense counsel for Flowers raised the issue of entrapment in a joint pretrial motion to dismiss, which was denied. United States v. Alexander , No. 1:14 CR 341, 2015 WL 1523910, at *3 (N.D. Ohio April 3, 2015). In a chambers conference that was not recorded, his defense counsel informed the district court that they were not asking for the entrapment defense instruction. Flowers argues that this constitu ted deficient and prejudicial performance, as entrapment was essentially his only defense, es pecially considering that Flowers was in the unique position among his co-Defe ndants of having no previous criminal record. Defense counsel’s reasons for not requesting the entrapment instruction are not before us and the record is not adequate to properly address the merits of th is claim. This issue is more appropriately resolved in a post-conviction proceeding.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-9- C. Confrontation Clause violation Several Defendants argue that the introduc tion of a co-Defendant’s statement and limitations on cross examination of federal ag ents violated their Sixth Amendment rights. 1. Co-defendant’s statement Appellants Chappell, Maxwell, and Nichols ar gue that the introduction of incriminatory testimonial statements from their co-defendant Alexander violatedtheir rights under the Confrontation Clause. We ordinarily review a district court's evidentiary rulings for an abuse of discretion, United States v. Rodriguez–Lopez , 565 F.3d 312, 314 (6th Cir. 2009), but “review de novo claims that the admission of evidence violated the Confrontation Clause,” United States v. Johnson , 581 F.3d 320, 325 (6th Cir. 2009). Maxwell objected th e second time the statement was referenced during cross-examination, whic h is sufficient to preserve the issue. An out-of-court statement made by a non-testif ying co-defendant that inculpates another defendant violates the Confrontation Clause, ev en when the court gives a limiting instruction. Bruton v. United States , 391 U.S. 123, 128–33 (1968). The Supreme Court has provided additional guidance on this principle. In Richardson v. Marsh , 481 U.S. 200 (1987), the Court held that the Confrontation Cl ause was not violated by the admission of a non-testifying codefendant’s statement with a limiting instruction because there the statement was “redacted to eliminate not only the defendant’s name, but any reference to his or he r existence.” 481 U.S. at 211. In Gray v. Maryland , 523 U.S. 185 (1998), the governmentredacted the co-defendant’s confession by substituting a blank space or the wo rd “deleted” for the defendant’s name in the confession. 523 U.S. at 188. The Court ex plained that this testimony violated Bruton because it still referred directly to the existence of the defendant. Id. at 188, 191.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-10- A Sixth Amendment violation might be avoided in a joint trial if the defendant’s name is redacted and a neutral term is substituted. In United States v. Vasilakos , 508 F.3d 401, 408 (6th Cir. 2007), the government was prosecuting five de fendants in “a multifac eted conspiracy in which several individuals engaged in activ ities,” and the non-tes tifying co-defendant’s statements “did not ineluctably im plicate” the other co-defendants. Id. at 408. In Stanford v. Parker, 266 F.3d 442, 456 (6th Cir. 2001), however, two defendants were on trial and the government read a confession into evidence, replacing the name of the co-defendant with the phrase “the other person.” Id. at 457. The district court found a Bruton violation because the jury would have concluded “the other person” referred to the co-d efendant and we affirmed this principle. Id. “Where a Bruton violation occurs, a court must then determine whether that violation is harmless.” Id . at 456. This entails determining whethe r the “minds of an average jury” would have found the government’s case “s ignificantly less persuasive” wi thout the incriminating part of the co-defendant’s statement. Id. (quoting Hodges v. Rose , 570 F.2d 643, 648 (6th Cir. 1978)). Before trial, all five Defendants moved for se parate trials based on their concern that a joint trial would compromise their Sixth Amendmen t Confrontation Clause rights. They stated that all the Defendants gave custodi al statements to federal agents or local police that implicated other Defendants. Id. The Government conceded that the post-arrest statements implicated
Bruton , but said it would redact th e statements to alleviate any Sixth Amendment concerns. Id. The district court found this acceptable, noted that it could provide a limiting instruction, and declined to sever the trials. Alexander , 2015 WL 1523910, at *5.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-11- None of the Defendants testif ied at trial. However, De tective Tom Hodous testified on direct examination about Alexander’s post-arre st statement regarding whether the Defendants planned to take half or all of the drugs: Q: Okay. And did [Alexander] indicate that that understanding had changed at some point? HODOUS: Yes. Q: And how had it changed? HODOUS: He said that [Zayas] would not get any of the portion of the narcotics, that they would take all of it

. (R. 181, PAGEID# 5477) (emphasis a dded). And again on redirect: Q: And [Alexander] indicated to you that the agreement that he had with [Zayas] was to split these bricks of cocai ne half and half, is that fair? HODOUS: That's correct. Q: And in his interview, did he indicate whether he had provided that -- the details of that agreement to others ? HODOUS: Yes. Q: Okay. And after having done that, did he indicate how the agreement between him and others changed ? HODOUS: Yes. Q: And what did he indicate they had come to the conclusion of as to what the split would be at that point? MS. PETTINELLI: Objection. HODOUS: That they were not -- THE COURT: Overruled. Go ahead. HODOUS: That there would not be a split and that they would take all the bricks of cocaine. (R. 181, PAGEID# 5498–99) (emphasis added). The Government referenced the statements in closing argument: “The idea of the 50-50 split from Agent Zaya s was never intended to happen according to Kali Alexander.” The court did not give a limiting instruction during cross examination or at the close of the evidence to indicate that the jury could not consider Alexander’s post-arrest statements against the other Defendants.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-12- The Defendants argue that although the statement admitted did not refer to each of them by name, it was an obvious reference to them. Just a few minutes earlier in his testimony, Hodous said that Alexande r identified “the other i ndividuals that he had been arrested with” as “Sheam, Terrance, Justin, and Cash.” The Govern ment responds that the statement did not refer to any Defendant by name, and, citing to Vasilakos , that in a multi-defendant conspiracy, it is less clear to whom the terms refer. See 508 F.3d at 408. As in Vasilakos , the statements admitted at trial used neutral terms and did not refer to any defendants by name. But in Vasilakos , five defendants were on trial and the statement at issue only referred to one individual. 508 F.3d at 405, 408. Here, the statement referred to an unspecified number of people—shortly followi ng the identification of the four other Defendants—making it a likelier reference to the other Defendants who were on trial. The Government notes that the Court in Gray suggested “[m]e and a few other guys [beat the victim]” as an alternative to the improper redaction in the phra se “[m]e, deleted, deleted, and a few other guys [beat the victim].” 523 U.S. at 196. But the language “a few other guys” is less specific than “others” as stated at trial, especi ally when coupled with Alexander’s identification of “the other individuals” as the four other Defendants just a few mi nutes earlier in Hodous’s testimony. Another issue implicates the Confrontation Clause. The analyses in Richardson , Gray , and Vasilakos assume the presence of a limiting instruction. See, e.g., Richardson , 481 U.S. at 211 (holding that the Clause was not vi olated by a redacted confession “with a proper limiting instruction”). Here, no limiting instruction was given to the jury at any point. See Mikesell v. Conley , 51 Fed. App’x 496, 505 (6th Cir. 2002) (“There is a real problem lurking here, nevertheless—one that removes the case from the permissible practice described inNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-13- Richardson and brings it within the realm of Bruton : the trial court did not instruct the jury that it was to consider [the co-defendant’s] stat ement only against her, and not against [the defendant].”). The testimony given in this joint trial of fi ve Defendants raises Confrontation Clause problems. On this record, however, there wa s sufficient evidence that the total amount of cocaine involved in the conspiracy wa s between eight and nine kilograms. See United States v. Robinson , 547 F.3d 632, 636–37 (6th Cir. 2008); United States v. Watson , 620 Fed. App’x. 493, 508–09, 510 (6th Cir. 2015) (stating th at “the relevant quantity of drugs is the quantity involved in the overall conspiracy”). Given the evidence regarding the quantity of the cocaine involved in the conspiracy, we cannot say that the averag e juror would have found the government’s case “significantly less persuasive” without the incrimin ating part of the co-defendant’s statement. Stanford, 266 F.3d at 456 (quoting Hodges , 570 F.2d at 648). Thus, an y violation was harmless

error. 2. Limitations on cross exami nation of federal agents Maxwell and Chappell further allege that the district court improperly limited their cross examination of Agents Zayas and Johnson. Exclusion of evidence is examined for an abuse of discretion, reviewing conclusions of law de novo and factual dete rminations for clear error. United States v. Ganier , 468 F.3d 920, 925 (6th Cir. 2006). “[T]ri al judges retain wide latitudeinsofar as the Confrontation Clause is concerned to impose reasonable limits on . . . crossexamination.” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986). The Defendants argue that their right to confrontation was violated by unreasonable limitations preventing them from: 1) impeaching the credibility of the agents’ claimed reason for selecting the quantity of cocaine; and 2) cross-examining Zayas on the credibility of hisNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-14- testimony that there was an understanding that Defendants would take all the drugs, then distribute half of the drugs back to him “subsequently.” The Defendants argue that they were not trying to inform the jury of the potential sentence, rather they were tryi ng to elicit factual informa tion to support th eir sentencing manipulation argument: Q: The amount of drugs, 4 kilos versus 9 kilos, is significant in Federal Court in criminal cases, correct? MS. GALVIN: Your honor, I’m going to object and ask for a sidebar. THE COURT: Sustained. (R. 180, PageID# 5258). Q: ... [A]re you familiar with Title 21 of the United States Code? A: Yes. Q: Okay. And so, you’re familiar with the fe deral laws as it re lates to controlled substance offenses? MR. FLANNERY: Objection, Judge. THE COURT: Sustained. (R. 182, PageID# 5573). A jury should “reach its verdict without rega rd to what sentence might be imposed.” Shannon v. United States , 512 U.S. 573, 579 (1994) (quoting Rogers v. United States , 422 U.S. 35, 40 (1975)). “[A]s a general matter, jurors are not inform ed of mandatory minimum or maximum sentences, nor are they instructed rega rding probation, parole, or the sentencing range accompanying a lesser included offense.” Id. at 586–87. Upon review of the record, the Defendants were prevented from con tinuing their line of questioning when it delved into territory that might have informed the jury about the pot entially increased sentences they were facing. Additionally, it appears trial c ounsel for Alexander did cross- examine Zayas regarding his statements about the agreement and when he woul d get his half of the cocaine. The district court’s limitation on cross examination does not ri se to the level of an abuse of discretion.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-15- D. Prosecutorial misconduct Alexander, Chappell, Maxwell, and Nichols contend that the Government engaged in misconduct when the prosecutor: 1) told the jury th at it would not be at th is trial if the ATF had done something illegal; and 2) saidthat the jury was being “invite d to violate [its] oath” anytime defense counsel suggested that jurors consider an amount of cocaine less than eight or nine kilograms. Defendants thus argue that th e prosecutor engaged in misconduct by committing improper vouching and by impugning the integr ity of defense counsel, respectively. Whether a prosecutor's statements at trial amount to misconduct, and whether the statements render a trial fundamentally unfair, ar e “mixed questions of law and fact, which we review de novo.” United States v. Carson , 560 F.3d 566, 574 (6th Cir. 2009). We view the conduct within the context of the entire trial. United States v. Francis , 170 F.3d 546, 552 (6th Cir. 1999). In considering this issue, the “relevant question is whether the prosecutors’ comments ‘so infected the trial wi th unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright , 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 644 (1974)). To evaluate a claim of prosecutorial misconduct, we first determine whether the st atements were improper. Carson , 560 F.3d at 574. If so, we determine if the remarks were flagrant, warranting reversal. Id. To determine flagrancy, we look to four factors: “(1) whether the conduct a nd remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliber ately or accidentally made; and (4) whether the evidence against the defendant was strong.” Id. (quoting United States v. Carter , 236 F.3d 777, 783 (6th Cir. 2001)).No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-16- “To reverse a conviction because of an im proper non-flagrant statement, a reviewing court must determine that: 1) the proof of the defendant's guilt is not overwhelming; 2) the defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish the jury.” Francis , 170 F.3d at 550. The Defendants argue that the prosecutor im pugned the integrity of defense counsel by suggesting that the defense invite d the jury to violate its oath: [GOVERNMENT]: After all the argument that you've heard and have been presented with, I'm going to stick to the law and I'm going to stick to your common sense, because every single one of you has just been invited to violate your oath, your oath as jurors , that you would consider th e facts of the case, the evidence and the testimony presented, a nd the law supplied by the Court.

. . . You have been invited to consider thi ngs that you are not allowed to consider. And the way that you know that you are not allowed to consider them is because it will be in the jury instructions.

. . . Nowhere in there does it say that a defendant must have agreed to 8 to 9 kilograms. This is one of the most important points. Every single person that invited you to consider 4 kilograms is asking you to violate your oath as jurors. MR. DIXON: Objection. MR. MACK: Objection. THE COURT: It's argument. Overruled. [GOVERNMENT]: This is the jury instru ction you're going to receive. This is exactly verbatim. “This does not require proof that th e defendant knew that the drug involved was cocaine. It is enough that the defendant knew that it was some kind of controlled substance, nor does this require pr oof that the defendant knew how much was involved. It is enough that the defendant knew that some quantity was involved.” Every time it was suggested that you consider 4 kilograms of cocaine, you were invited to violate your oath . Your oath requires to you consider these jury instructions. MR. FATICA: Objection, Your Honor. THE COURT: Overruled. It's argument. (R. 182, PAGEID# 5695–96, 5698–99) (emphasis added). The Defendants also argue that the prosecutor committed improper vouching in the rebuttal closing argument, by “su ggesting to the jury that th e Court had made a pretrial determination of the propriety of the ATF’s conduct in this case.”No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-17- [GOVERNMENT]: Do you honestly believe anyone of us would be here right now if they had done something illegal? We wouldn't be here, ladies and gentlemen. These cases have been conducted across the country. They have been presented to juries across the country. MR. MACK: Objection, Your Honor. THE COURT: Sustained. [GOVERNMENT]: You would not be here if in this inst ance this Court had found that ATF had somehow violated the law. MR. MACK: Objection again. THE COURT: Overruled. (R. 182, PageID#5696). At the close of the Government’s rebuttal argument, all five Defendants moved for a mistrial based on the pros ecutor’s statements, which was denied. Both challenged statements occurred in the Government’s rebuttal argument. A prosecutor’s statement to the jury that a defense ar gument is an invitation for jurors to “violate their oaths” is the more concerning. In cases char ging a conspiracy, it is the province of the jury to determine if a conspiracy existed, its specific objectives, and who particip ated in it. Here, in addition to its general verdict, th e jury was given a special interr ogatory regarding the quantity of drugs involved—the issue addressed in the defense argument challenged. We find these comments improper. We must next determine whether the prosec utor’s statements were flagrant. The repetition of the remarks during re buttal closing argument suggests th at it was unlikely that they were accidental, and, as the statem ents were the last thing the ju ry heard from the attorneys and the Defendants did not have a chance to respon d, may have been misleading to the jury. See Carter , 236 F.3d at 788. Both the test for flag rancy and the test determining whether an improper but non-flagrant statement should result inreversal of a conviction, however, consider the total strength of the evid ence against the defendant. Francis , 170 F.3d at 550. The evidence of the Defendants’ participation in the conspiracy to rob a stas h house of a significant quantity of drugs was strong. Defendants, moreover, were not ultimately prejudiced regarding the drugNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-18- amount. See Robinson , 547 F.3d at 636–38; Watson , 620 Fed. App’x. at 508–09, 510. Under the governing tests, therefore, we decline to re verse the convictions be cause “proof of the [Defendants’] guilt [was] overwhelming” as it related to the conspiracy. Francis , 170 F.3d at 550. E. Sentencing issues 1. Sentencing manipulation and sentencing entrapment The Defendants argue that the Government ’s conduct in establishing the quantity of cocaine constitutes sentencing manipulation or sentencing entrapment in violation of fundamental fairness and their Fifth Amendment due process rights. We review constitutional challenges to a sentence de novo. United States v. Graham , 622 F.3d 445, 452 (6th Cir. 2010). Prior to trial, the Defendants filed a joint motion seeking to preclude the enhancement of their sentences based upon the fictional amount of cocaine involved, alleging that it was selected specifically to increase their sentences. The trial court deferred ruling on the motion, finding it more appropriate to address at sentencing. At the sentencing hearing, the court overruled the objection, reasoning that the Si xth Circuit has not recognizedsentencing entrapment or sentencing enhancement. The Defendants request this court to expressly recognize sentencing manipulation. “Sentencing entrapment is similar to the subjective theory of entrapment and ‘focuses on the defendant’s lack of predispositi on to commit the greater offense.’” United States v. Hammadi , 737 F.3d 1043, 1048 (6th Cir. 2013) (citing United States v. Strickland , 342 Fed. App’x 103, 107 (6th Cir. 2009)). On the othe r hand, sentencing manipulation “tracks the objective theory of entrapment, and ‘foc uses on the [g]overnment’s conduct.’” Id. (citing Strickland , 342 Fed. App’x at 107). The Sixth Circuit has not yet recognized either sentenceNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-19- manipulation or sentence entrapment. Hammadi , 737 F.3d at 1048 (6th Ci r. 2013) (noting that under the facts of the case, it “neednot decide whether to adopt or reject these doctrines”). We decline to resolve that question here and leave it for another day. 2. Consideration of § 3553(a) factors Alexander argues that his sentence was proce durally unreasonable because the district court failed to consider his request for a dow nward departure under the sentencing manipulation argument and because the district court did not adequately discuss or apply the 18 U.S.C. § 3553(a) factors. The sentence itself is re viewed for reasonableness, under an abuse of discretion standard. See Gall v. United States , 552 U.S. 38, 46, (2007). Th e sentence ultimately chosen by the court may be unreasonable if the court committed significant procedural error, “such as failing to calculate (or improperly cal culating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or fa iling to adequately explain th e chosen sentence—including an explanation for any deviation from the Guidelines range.” Id . at 51. “[T]he question is whether ‘[t]he record makes clear that the sentencing ju dge listened to each argu ment,’ ‘considered the supporting evidence,’ was ‘fully aw are’ of the defendant's circumstances and took ‘them into account’ in sentencing him.” United States v. Vonner , 516 F.3d 382, 387 (6th Cir. 2008) (en banc) (quoting Rita v. United States , 551 U.S. 338, 358 (2007)). Alexander first argues that the district court should ha ve considered sentencing entrapment when determining his sentence. This issue was briefed, and the district court heard argument at the sentencing hearing but overruled the objection because “the Sixth Circuit has repeatedly noted that it has never recognized sent encing entrapment or sentencing enhancement.” As noted, we decline to resolve those issu es here and leave th em for another day.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-20- Alexander’s second contention is that the court failed to meaningfully apply the § 3553(a) factors. The court st ated that it thoroughly reviewed the pre-sentence investigation report, the sentencing memorandum, and the res ponse to the memorandum. At the sentencing hearing, Alexander’s trial counsel brought up hi s background, drug addiction, and poverty. The district court discussed the na ture of the conduct, § 3553(a)(1), and the need for a harsher punishment in light of the crime and the intention to use firearms in the home, § 3553(a)(2). It noted the need to send a message to the community about this kind of activity, and that this “very significant sentence” reflected th e seriousness of the crime. § 3553(a)(2). The court did not discuss directly the kinds of sent ences available, but did instruct Alexander to participate in drug treatment and work toward a GED after release. § 3553(a)(3). It discu ssed the sentencing range based on the guidelines. Additionally, the court heard argument and ruled that Alexander should not be afforded acceptance of responsibility, but al so ruled that he would not receive the fourlevel enhancement for his role as an organi zer/leader in the offense, pursuant to USSG §3B1.1(a). § 3553(a)(4). The district court did not mention the f actors by name, though it appeared to hear argument or consider many of them. Clearer refere nce to the factors is pr eferable, and the court also might have addressed the guideline policy st atements and the need to avoid unwarranted sentencing disparities, § 3553(a)(5) & (6). Our cas es do not require a “ritu alistic incantation of the § 3553(a) factors.” See United States v. Chandler , 419 F.3d 484, 488 (6th Cir. 2005). Here the court’s review of the factors was adequa te. Alexander’s sentence was procedurally reasonable.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-21- F. Sufficiency of the evidence 1. Drug quantity Maxwell, Nichols, and Chappell argue that there was insufficient evidence supporting the jury’s drug quantity determinati on. They contend that becaus e the agreement was to rob the stash house and split the eight to nine kilograms of cocaine e qually between the Defendants and Zayas, they could only be found re sponsible for between four and four and a half kilograms of cocaine. We review de novo the di strict court's denial of the Defendants’ motions for judgment of acquittal challenging the sufficiency of the evidence. United States v. Tocco , 200 F.3d 401, 424 (6th Cir. 2000). We view the evidence in th e light most favorable to the Government and then consider whether a ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id . (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). “[W]e do not weigh the evidence, assess the cred ibility of the witnesses, or substitute our judgment for that of the jury.” United States v. Wright , 16 F.3d 1429, 1440 (6th Cir. 1994). Instead, we resolve all credibility issues in favor of the verdict and draw every reasonable inference in favor of the prosecution. United States v. Salgado , 250 F.3d 438, 446 (6th Cir. 2001). “[A]ny fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013). Zayas testified that his understanding of the plan was that the Defendants would distribute half of the drugs to him “subseque nt” to robbing the entire amount. There was evidence in the record showing that the amount of cocaine i nvolved in the conspiracy was between eight and nine kilograms. See Robinson , 547 F.3d at 636–37; Watson , 620 Fed. App’x. at 508–09, 510 (6th Cir. 2015) (stati ng that “the relevant quantit y of drugs is the quantityNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-22- involved in the overall conspiracy ”). Taken in the light most fa vorable to the Government, there was sufficient evidence to support the jury’s drug amount determination. 2. Chappell’s convictions Chappell also asserts that the evidence admitted at trial was not sufficient to establish beyond a reasonable doubt that he jo ined the conspiracy to possess with intent to distribute five kilograms or more of cocaine or that he carri ed a firearm during, and in relation to, a drug trafficking crime. In support, Chappell argue s that he knew Alexande r for only a few days, Zayas spent only a brief time with him, Ch appell was not paying attention during the conversation in the car, and he di d not walk towards the vehicle th at was going to be used in the robbery when the men exited the car. The Gove rnment responds that Chappell was in the car carrying a loaded firearm, Zayas explained the de tails of the plan and Chappell participated in that conversation, and that Za yas offered Chappell a chance to withdraw and he did not. Chappell also argues that there was insufficient ev idence to show that he carried a firearm in relation to the conspiracy, sta ting that the gun was for his prot ection. The Government responds that Chappell brought his weapon, knew that there would be an armed guard at the house, and did not surrender his weapon when asked if he wanted to back out of the plan. Taken in the light most favorable to the G overnment, we find that there was sufficient evidence for a rational jury to find that Chappell committed the charged offenses. See Tocco , 200 F.3d at 424. G. Motion to sever felon in possession charge Chappell argues that the court improperly de nied his motion to sever his felon in possession of a firearm and ammunition charge fro m his drug conspiracy and knowingly using or carrying a firearm during a nd in relation to a drug conspiracy charges.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-23- The denial of a motion to sever is reviewed for abuse of discretion. United States v. Anderson , 89 F.3d 1306, 1312 (6th Cir. 1996). Because Chappell failed to renew his motion to sever at the close of evidence, we review for plain error. United States v. Lopez , 309 F.3d 966, 971 (6th Cir. 2002). Plain error re quires: (1) an error; (2) thatwas plain; an d (3) affected substantial rights. See United States v. Richards , 659 F.3d 527, 546 (6th Cir. 2011). If these three conditions are met, we may exercise our disc retion only if the error “s eriously affect[s] the fairness, integrity, or public reputa tion of judicial proceedings.” Id . (citations omitted). Chappell’s argument centers around language in the district c ourt’s order denying severance, which uses the incorrect standard “i n furtherance of” the drug conspiracy, instead of the correct standard “during, and in relation to” a drug conspiracy. The jury did not read this order and the proper language was used at trial. There was a sufficient connection for the offenses to be tried together, in light of the preference for joint trials of defendants who are indicted together in the federal system. Zafiro v. United States , 506 U.S. 534, 537 (1993). We affirm the district court’s denial of Chappell’s motion to sever. H. Jury verdict form Chappell argues that Count 6 of the jury verdict form failed to specify that the predicate drug trafficking offense must be the one alleged in the indictment. Because Chappell failed to object to the verdict form in district court, we review for plain error. Lopez , 309 F.3d at 971. Chappell’s concern is that because the verdict form failed to sp ecifically list the drug conspiracy that he was charged with in C ount 2, the jury could have been misled and convicted him for using or carrying a firearm in order to comm it a home invasion robbery. Chappell was never charged with robbery, however, only with drug cons piracy. There was no plain error in the jury verdict form.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-24- I. Confidential informants Nichols argues that the statements of conf idential informants were hearsay, the court should have disclosed the identity of the inform ants, and the jury instructions regarding the confidential informants were defective. 1. Hearsay We review a district court’s evidenti ary rulings for abuse of discretion. United States v. Wright , 343 F.3d 849, 865 (6th Cir. 2003). “We have . . . sanctioned the use of . . . out-of-court [informant] statements to the extent that they are ‘only offered to construct the sequence of events leading up to th e drug transaction.’” United States v. Aguwa , 123 F.3d 418, 421 (6th Cir. 1997) (citing United States v. Evans , 883 F.2d 496, 501 (6th Cir. 1989)). Nichols does not point us to any specific hearsay statements in the record. He argues generally that the informants’ statements were hearsay because they were testimonial out-ofcourt statements offered against an accused to es tablish the truth of the matter asserted. The Government responds that the statements were offered to provide background information and were not for the truth of the matter asserted. Inlight of the generality of this claim and the standard of review, the district court did not abuse its discretion in admitting these statements. 2. Disclosure of confidential informants’ identities Nichols also argues that the co urt should have ordered disclosu re of the identities of the confidential informants. The decision whether to disclose the identity of confidential informants is generally left to the disc retion of the trial court. United States v. Cummins , 912 F.2d 98, 103 (6th Cir. 1990). A court must balance public interest against the de fendant’s “right to prepare his defense,” “the particular circumstances of each ca se, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevantNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-25- factors.” Roviaro v. United States , 353 U.S. 53, 62 (1957). “[D]a nger to the informant’s life must be given significant weight in striking the Roviaro balance.” United States v. Straughter , 950 F.2d 1223, 1232 (6th Cir. 1991). The defendant has the burden “to show how disclosure of the informant would substantively assist his defense.” United States v. Moore , 954 F.2d 379, 381 (6th Cir. 1992). Nichols argues that the confidential informants directly engaged in the illegal activity and had contact with Nichols and other Defendants outside the presen ce of law enforcement. He alleges that these witnesses are the only peopl e who could “controvert, explain, or amplify Zayas’s and Johnson’s report of these important conve rsations” in the car a nd that their evidence would have been helpful to the defense. The court found that the Defenda nts failed to provide specifics on how disclosure woul d assist their defense. It al so reviewed documents from the Government in camera that showed disclosure would pose “grave dang er” to the informants’ safety. In balancing the factors, we find thatthe district court did not abuse its discretion. 3. Jury instructions Nichols argues that the jury instructions regarding evidence from the confidential informants were defective. We review a decisionnot to give a requested instruction for abuse of discretion, United States v. Henderson , 626 F.3d 326, 342 (6th Cir. 2010), but because Nichols failed to object to the in structions or to reques t specific instructions oninformant testimony, we review for plain error. Nichols argues that the jury should have beeninstructed to view the evidence about what the informants did or said with great caution, considering the benefi ts the informants expected to receive from the Government. The Government responds that any instru ction would have beenNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-26- confusing because the informants did not testify at the trial. The district court generally instructed the jury on witness cr edibility in the following way: Ask yourself if the witness had any relati onship to the government or any of the defendants or anything to gain or lose from the case that might influence the witness’s testimony. Ask yourself if the witness had any bias or prejudice or reason for testifying that might cause the w itness to lie or to slant the testimony in favor of one side or the other. (R. 182, PAGEID# 5714).
In United States v. Wheaton , 517 F.3d 350, 362 (6th Cir. 2008), the court found no plain error when the jury was given a similar instruct ion regarding witness bias and credibility, though no specific instruction was give n in regard to informant testimony. We find no plain error occurred here. J. Cumulative effe ct of errors Nichols contends that even if each individual error did not constitute reversible error, the cumulative effect of the errors re ndered the trial fundament ally unfair in viola tion of due process. This court reviews the cumulative effect of harmless errors for whether they were “so prejudicial” as to render the trial “fundamentally unfair.” Walker v. Engle , 703 F.2d 959, 963 (6th Cir. 1983). We cannot say that the harmle ss errors here, even if accumulated, rendered the trial fundamentally unfair. III. CONCLUSION For the foregoing reasons, we AFFIRM the Defendants’ convictions and sentence.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-27- JANE B. STRANCH, Circuit Judge, concurring. I write separately to express my discomfort with the governmental operation known as a “stash house sting.” The sting that targeted these Defendants is one in a long list of nearly identical operations conducted by the ATF across the country. Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare Suspects , USA Today (June 28, 2013, 11:26 AM), https://www.us atoday.com/story/news/nation/2013/06/27/atfstash-houses-sting-usa-today-inve stigation/2457109/ ( noting that more than 600 individuals have been prosecuted following similar “stash house stings”). Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized rewardis also made to look easy—the agent is a disgruntled insider who knows when and how to st age these “rip-and-runs” and offers to provide all needed assistance, from manpower to tr ansportation. The unseemly nature of the Government’s activity is emphasi zed by its failure to achieve its declared goals of jailing dangerous criminals and making ourstreets safer. Evidence show ing that these hurry-up set-ups achieve the stated goals was not proffered a nd the facts here demonstrate why: no known dangerous individuals or criminal enterprises we re researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record. We have this result because informants were simply sent out into the community to gather information and find someone who would bite at the opportunity to make loads of money quickly. And, in line with sting statistics, the men recruited here were all African American and all from impoverished areas—as are the overwhelming number of stash-house- sting targets across the nation.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-28- This concerning ATF tactic has rightly draw n criticism in news reporting, scholarly writing, and from the judiciary. An investigative report from US A Today explored the risks and high costs associated with the stings, and the assurance that defendants involved would receive lengthy sentences. Heath, supra (“USA TODAY reviewed thousands of pages of court records and agency files, plus hours of undercover recordings. Those r ecords—many of which had never been made public—tell the story of how an ATF strategy meant to target armed and violent criminals has regularly used ri sky and expensive undercover stings to ensnare low-level crooks who jump at the bait of a criminal windfall.”) Scholarly writing has also criticized the s tings, noting that the gove rnment does not have to “target existing criminal enterprises or have pr ior suspicion of potential targets,” that it has “full control over the amount of time its targets spend in prison because it can specify the amount of drugs involved in the fictiona l conspiracies,” and that the tact ic has a disproportionate effect on poor minority defendants. See Marc D. Esterow, Note, Lead Us Not into Temptation: Stash House Stings and the Outrageous Government Conduct Defense , 8 Drexel L. Rev. 1, 28–31 (2016); United States v. Kindle , 698 F.3d 401, 414 (7th Cir. 2012) (Posner., J, concurring and dissenting) ( citing Katherine Tinto, Undercover Policing, Overstated Culpability , 34 Cardozo L. Rev. 1401 (2013)) (referring to these stings as a “disreputable t actic” and noting that “[l]aw enforcement uses them to increase the amount of drugs that can be attributed to the persons stung, so as to jack up their sent ences”). The effect on poor minority communities is the subject of litigation in the United States District Court for the Northern District of Illinois, where a recently filed expert report concludes that there wa s a clear pattern of racial disparities in Illinois sting cases, and finds that the disparities are ine xplicable on grounds other than race. Report ofNo. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-29- Jeffrey Fagan, Ph.D., 1:12-cr-00632 , R. 510-2. A motion to dismi ss based on racially selective law enforcement is currently pending in that court. R. 518. Despite increasing awareness of the problems a nd inequities inherent in fictitious stash house stings, at issue here is whether an appr opriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have r ecognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges. See United States v. Guzman , 282 F.3d 56, 59 (1st Cir. 2002); United States v. Al Kassar , 660 F.3d 108, 121 (2d Cir. 2011); United States v. Twigg , 588 F.2d 373, 377 (3d Cir. 1978); United States v. Hasan , 718 F.3d 338, 343 (4th Cir. 2013); United States v. Gutierrez , 343 F.3d 415, 421 (5th Cir. 2003); United States v. Boone , 437 F.3d 829, 841 (8th Cir. 2006); United States v. Black , 733 F.3d 294, 303–04 (9th Cir. 2013); United States v. Dyke , 718 F.3d 1282, 1287 (10th Cir. 2013); United States v. Augustin , 661 F.3d 1105, 1122–23 (11th Cir. 2011); United States v. Hsia , 81 F. Supp. 2d 7, 19 (D.D.C. 2000).
In United States v. Black , the Ninth Circuit examined a stash house sting and, despite reservations, affirmed the distri ct court’s determination that the operation did not constitute outrageous government conduct becau se the defense is “limited to extreme cases” where the government’s conduct is “so grossly shocking and so outrageous as to violate the universal sense of justice.” 733 F.3d at 298, 302. There, the same ATF agent, Richard Zayas, orchestrated a sting, telling a familiar story: he was a di sgruntled drug courier who suggested robbing a cocaine stash house guarded by two men, at least one of whom would be armed. Id. at 298–301. The day of the proposed robbery, the defendants arrived at the agreedupon location and were arrested, then convicted of cons piracy to possess cocaine with in tent to distribute and use of a firearm in furtherance of a drug trafficking offense. Id. at 297–98.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-30- Despite affirming, the court was troubled: The crimes of conviction . . . resulted from an operation created and staged by ATF. Most of the hard evidence agains t the defendants consisted of words used at meetings Zayas set up . . . . Zayas i nvented the scenario, including the need for weapons and for a crew, and the amount of cocaine involved. The only overt actions by the defendants involved showi ng up at meetings, including arriving at the parking lot with four hi dden, loaded weapons and th en driving to the storage warehouse where they were arrested. Although those actions clearly corroborate the defendants’ intent to carry out an armed robbery, defendants were responding to the government’s script. Id. at 302–03. The court was also concerned with how the government recruited the defendants. The ATF was not “infiltrating a suspected crew of home invasion robbers, or seducing persons known to have actually engaged in such criminal behavior.” Id. at 303. Rather, the ATF found the defendant by “trolling for targets,” sending th e informant to “cast his bait in places defined only by economic and social conditions.” Id. Also as here, the court re cognized that agents can guarantee long sentences for defendants: In fictional stash house operations like th e one at issue here, the government has virtually unfettered ability to inflate th e amount of drugs supposedly in the house and thereby obtain a greater se ntence for the defendant . . . . The ease with which the government can manipulate these factors makes us wary of such operations in general . . . . Id . at 303 (citing United States v. Briggs , 623 F.3d 724, 729–30 (9th Cir. 2010)); see also Heath,

supra . I find the concept of th ese “stash house sting” operations at odds with th e pride we take in presenting American criminal justice as a sy stem that treats defendants fairly and equally under the law. I am heartened th at judges increasingly ar e objecting to these sting operations and prosecutors are responding. See, e.g. United States v. McLean , 199 F.Supp.3d 926 (E.D. Penn. 2016); Michael Tarm, Federal prosecutors drop dozens of stash house sting charges , AP (Jan.No. 15-3988/3990/3991/4003/4028, United States v. Flowers, et al.

-31- 30, 2015), available at http://www.msn.com/en-us /news/crime/federal-prosecutors-drop-dozensof-stash-house-sting-charges/ar-AA8Lxuy. As noted, multiple disciplines have proposed methods to address the injustices that appear to be an integral part of stash house sting operations, particularly those relating to sentences. 1 Yet it seems we remain without an established vehicle in the law to define a divi ding line between law enfo rcement practices that are honorable and those that are not. In the inte rim, these questionable schemes continue to use significant government resources and to adve rsely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. Thes e costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

1 See, e.g. , Sensenbrenner-Scott SAFE Justice Reinvestment Act, H.R. 2944 (114th Cong., 1st Sess. (2015)) (would perm it a sentencing court to disreg ard the quantity and type of drug that was determined by an agent soliciting the defendant to participate in a stash-house robbery).