FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORDAE L. BLACK,

Defendant-Appellant.

No. 11-10036

D.C. No.

2:09-cr-01040-

MHM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANGEL MAHON,

Defendant-Appellant.

No. 11-10037

D.C. No.

2:09-cr-01040-

MHM-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEMFORD J. ALEXANDER,

Defendant-Appellant.

No. 11-10039

D.C. No.

2:09-cr-01040-

MHM-2
2 UNITED STATES V. BLACK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE L. TIMMONS,

Defendant-Appellant.

No. 11-10077

D.C. No.

2:09-cr-01040-

MHM-3

OPINION

Appeal from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

January 16, 2013—San Francisco, California

Filed October 23, 2013

Before: John T. Noonan, Jr., Susan P. Graber,

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Noonan
UNITED STATES V. BLACK 3

SUMMARY*

Criminal Law

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.

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

been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. BLACK

COUNSEL

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, DeputyAppellate Chief, and Theresa Cole

Rassas, Assistant United States Attorney, Phoenix, Arizona,

for Plaintiff-Appellee (No. 11-10077).
UNITED STATES V. BLACK 5

OPINION

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).1 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.

1 A “reverse sting” occurs when the government initiates the criminal

conduct, setting up a fictitious crime and arresting the criminals as they

begin to carry out what they believe is a real crime.
6 UNITED STATES V. BLACK

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. GarzaJuarez, 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.2

BACKGROUND

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

2 Other issues raised by these consolidated appeals are addressed in a

concurrently filed memorandum disposition.
UNITED STATES V. BLACK 7

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.

3

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

3 The record underlying the district court’s decision on the claim of

outrageous government conduct was thoroughly developed and included

a three-day hearing in which Zayas and the CI testified and video and

audio transcripts of all of the meetings between the defendants and Zayas

were played for the court. Unless otherwise noted, the facts related here

come fromthe testimony and recordings played at those hearings and from

the district court’s findings.
8 UNITED STATES V. BLACK

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.4

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

4 All of Zayas’ conversations with the defendants were recorded on

audio or video; but none of the interactions the CI had with Curtis and

Simpson before they were introduced to Zayas was recorded.
UNITED STATES V. BLACK 9

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”5the

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

 

5

 Zayas testified that “murc” means “murder.”
10 UNITED STATES V. BLACK

“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.”
UNITED STATES V. BLACK 11

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.

6

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

6 As part of his plea agreement, Simpson cooperated with the

government and testified against his codefendants at trial.
12 UNITED STATES V. BLACK

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.
UNITED STATES V. BLACK 13

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 its sentencing entrapment decision. See United

States v. Ross, 372 F.3d 1097, 1113–14 (9th Cir. 2004).

DISCUSSION

I. Outrageous Government Conduct

Outrageous government conduct occurs when the actions

of law enforcement officers or informants are “so outrageous

that due process principles would absolutely bar the

government from invoking judicial processes to obtain a

conviction.” United States v. Russell, 411 U.S. 423, 431–32

(1973). Dismissing an indictment for outrageous government
14 UNITED STATES V. BLACK

conduct, however, is “limited to extreme cases” in which the

defendant can demonstrate that the government’s conduct

“violates fundamental fairness” and is “so grossly shocking

and so outrageous as to violate the universal sense of justice.”

Stinson, 647 F.3d at 1209 (internal quotation marks omitted). 

This is an “extremely high standard.” United States v. GarzaJuarez, 992 F.2d 896, 904 (9th Cir. 1993) (quoting United

States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991)) (internal

quotation marks omitted). Indeed, there are only two

reported decisions in which federal appellate courts have

reversed convictions under this doctrine. See United States

v. Twigg, 588 F.2d 373 (3d Cir. 1978); Greene v. United

States, 454 F.2d 783 (9th Cir. 1971). See also State v. Lively,

921P.2d 1035 (Wash. 1996) (reversing drug conviction under

state law, but relying on federal cases in finding outrageous

government conduct).

There is no bright line dictating when law enforcement

conduct crosses the line between acceptable and outrageous,

so “every case must be resolved on its own particular facts.” 

United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986),

vacated in part on other grounds sub nom. United States v.

Wingender, 790 F.2d 802 (9th Cir. 1986) (order). In

assessing the reasonableness of various law enforcement

actions and tactics, however, we have set forth ground rules

that provide some guidance. For example, it is outrageous for

government agents to “engineer[] and direct[] a criminal

enterprise from start to finish,” United States v. Williams,

547 F.3d 1187, 1199 (9th Cir. 2008) (internal quotation marks

omitted), or for the government to use “excessive physical or

mental coercion” to convince an individual to commit a

crime, United States v. McClelland, 72 F.3d 717, 721 (9th

Cir. 1995). It is also outrageous for the government to

“generat[e] . . . new crimes merely for the sake of pressing
UNITED STATES V. BLACK 15

criminal charges.” United States v. Emmert, 829 F.2d 805,

812 (9th Cir. 1987). It is not outrageous, however, to

infiltrate a criminal organization, to approach individuals who

are already involved in or contemplating a criminal act, or to

provide necessary items to a conspiracy. See United States v.

So, 755 F.2d 1350, 1353 (9th Cir. 1985). Nor is it outrageous

for the government to “use ‘artifice and stratagem to ferret

out criminal activity.’” Bogart, 783 F.2d at 1438 (quoting

Sorrells v. United States, 287 U.S. 435, 441 (1932)).

The reverse sting employed here largely falls within the

bounds of law enforcement tactics that have been held

reasonable. Once presented with the fictitious stash house

robbery proposal, Simpson, Black (and, later, their cohorts)

readily and actively acted as willing participants with a

professed ability to carry out a dangerous armed robbery. 

Nonetheless, there are two troubling aspects about this

fictional sting and how it came about in the first place.

First is the fiction itself. The crimes of conviction –

conspiracy to possess cocaine with intent to distribute and the

use of firearms in furtherance of drug trafficking – resulted

from an operation created and staged by ATF. Most of the

hard evidence against the defendants consisted of words used

at meetings Zayas set up with help from the CI. Zayas

invented 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 showing up at meetings,

including arriving at the parking lot with four hidden, loaded

weapons and then 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.
16 UNITED STATES V. BLACK

This leads to our second and major concern – how the

government recruited these defendants. ATF was not

infiltrating a suspected crew of home invasion robbers, or

seducing persons known to have actually engaged in such

criminal behavior. Rather, ATF found Simpson by “trolling

for targets.” Lively, 921 P.2d at 1046. The CI provocatively

cast his bait in places defined only by economic and social

conditions: “a bad part of town, a bad bar, you know . . . bars

where you’ve got . . . a lot of criminal activity.” The risk

inherent in targeting such a generalized population is that the

government could create a criminal enterprise that would not

have come into being but for the temptation of a big payday,

a work of fiction spun out by government agents to persons

vulnerable to such a ploy who would not otherwise have

thought of doing such a robbery. See Bogart, 783 F.2d at

1436 (“Criminal sanction is not justified when the state

manufactures crimes that would otherwise not occur. 

Punishing a defendant who commits a crime under such

circumstances is not needed to deter misconduct; absent the

government’s involvement, no crime would have been

committed.”). We have previously raised such concerns

about stash house reverse stings in addressing the issue of

sentencing entrapment:

In fictional stash house operations like the one

at issue here, the government has virtually

unfettered ability to inflate the amount of

drugs supposedly in the house and thereby

obtain a greater sentence for the defendant. In

fact, not only is the government free to set the

amount of drugs in a fictional stash house at

an arbitrarily high level, it can also minimize

the obstacles that a defendant must overcome

to obtain the drugs. The ease with which the
UNITED STATES V. BLACK 17

government can manipulate these factors

makes us wary of such operations in general,

and inclined to take a hard look to ensure that

the proposed stash-house robbery was within

the scope of Briggs’ ambition and means.

United States v. Briggs, 623 F.3d 724, 729–30 (9th Cir. 2010)

(citation omitted). For similar reasons, the initiation of this

sting warrants close scrutiny, and places a burden on the

government to show that our concerns are not borne out in

this case.

A. Factors Relevant to Outrageous Government

Conduct

Previous outrageous government conduct cases, viewed

collectively, have identified various factors as relevant to

whether the government’s conduct was outrageous: (1)

known criminal characteristics of the defendants; (2)

individualized suspicion of the defendants; (3) the

government’s role in creating the crime of conviction; (4) the

government’s encouragement of the defendants to commit the

offense conduct; (5) the nature of the government’s

participation in the offense conduct; and (6) the nature of the

crime being pursued and necessity for the actions taken in

light of the nature of the criminal enterprise at issue. In this

case, the first three are most relevant to the way in which the

government set up the sting; the fourth and fifth look to the

propriety of the government’s ongoing role in the sting. The

last focuses on the justification for the particular law

enforcement strategy employed. These do not constitute a
18 UNITED STATES V. BLACK

formalistic checklist, but help focus our analysis of the

totality of circumstances.7

B. Government’s Initiation of the Reverse Sting

Individualized suspicion. The government need not have

individualized suspicion of a defendant’s wrongdoing before

conducting an undercover investigation. See United States v.

Luttrell, 923 F.2d 764, 764 (9th Cir. 1991) (en banc) (order). 

Whether the government had reason to suspect an individual

or identifiable group before initiating a sting operation is an

important consideration, however. See, e.g., United States v.

Bonanno, 852 F.2d 434, 438 (9th Cir. 1988) (noting the

government did not recruit a CI to approach defendants until

an investigation revealed they were already involved in an

illegal scheme); United States v. Pemberton, 853 F.2d 730,

732 (9th Cir. 1988) (noting the reverse sting operation

targeted an individual it “suspected to be a long-time drug

dealer involved in the laundering operation”); United States

v. Stenberg, 803 F.2d 422, 430 (9th Cir. 1986) (“Agent Gavitt

met both Ellison and Fike only after his investigation

indicated they were already involved in continuing illegal

transactions involving wildlife.”), superseded by statute on

7 The parties cite a five-factor “test” from United States v. Bonanno,

852 F.2d 434, 437–38 (9th Cir. 1988) (citing Bogart, 783 F.2d at

1435–38). These factors have not been used consistently, however, nor

as a dispositive test. See, e.g., United States v. Gurolla, 333 F.3d 944, 950

(9th Cir. 2003) (not citing or employing the Bonanno factors and instead

rejecting the defendants’ outrageous government conduct claim on the

more general principle that “the government did not initiate the criminal

activity, but rather sought to crack an ongoing operation”). Because we

are to resolve every case on its own particular facts, we take account of the

Bonanno factors in our analysis but only as part of our consideration of all

the circumstances as a whole.
UNITED STATES V. BLACK 19

other grounds as stated in United States v. Atkinson, 966 F.2d

1270, 1273 n.4 (9th Cir. 1992).

In some cases where the government did not suspect a

particular individual, it has focused on a category of persons

it had reason to believe were involved in the type of illegal

conduct being investigated. An example is Garza-Juarez,

992 F.2d 896, involving an investigation of illegal firearm

trafficking at swap meets. The government received a tip that

a Hispanic male at a swap meet near Casa Grande, Arizona,

had illegally sold an assault-type firearm. On that

information alone, an undercover agent went to the Casa

Grande swap meet looking for Hispanic males and came upon

the defendant, who appeared to be selling firearms in

numbers exceeding those of a professed “gun collector.” The

government then lured him into a faked sale of illegal

weapons. See id. at 899–900. See also Emmert, 829 F.2d at

812 (targeting student who attended a cocaine party as one

likely to know drug dealers); United States v. Bagnariol,

665 F.2d 877, 882 (9th Cir. 1981) (targeting politicians,

political operatives and persons in the gaming business in

investigation of political corruption).

Known criminal characteristics of defendants. Closely

related to the question of individualized suspicion is whether

a defendant had a criminal background or propensity the

government knew about when it initiated its sting operation. 

See, e.g., Williams, 547 F.3d at 1200 (noting that before the

government suggested a stash house robbery, the defendant

was introduced to the government “as a middleman drug

dealer”); United States v. Mayer, 503 F.3d 740, 754 (9th Cir.

2007) (“While Mayer points out there was no ongoing

criminal enterprise that the government was merely trying to

join, Mayer was certainly a willing and experienced
20 UNITED STATES V. BLACK

participant in similar activities [traveling internationally for

sex with boys].” (citation omitted)).

Government’s role in creating the crime. Also relevant

is whether the government approached the defendant initially

or the defendant approached a government agent, and

whether the government proposed the criminal enterprise or

merely attached itself to one that was already established and

ongoing. See Williams, 547 F.3d at 1200 (noting that

government merely persuaded the defendant to substitute a

stash house robbery for the planned bank robbery he had

initially proposed to the government agent); Mayer, 503 F.3d

at 747 (noting that the defendant was the first to broach the

subject of traveling internationally to have sex with boys);

United States v. Winslow, 962 F.2d 845, 849 (9th Cir. 1992)

(“At the time Valentino first targeted the appellants for

investigation, both Winslow and Nelson had already

expressed interest in blowing up establishments frequented by

homosexuals.”); United States v. Wiley, 794 F.2d 514, 516

(9th Cir. 1986) (“The drug distribution scheme between

defendant and Garbiso was in existence before the

government became involved; the government merely

activated it.”).

In the case before us, the government does not contend it

had any individualized suspicion of any of the defendants as

being involved in stash house robberies when it dispatched

the CI into the field to find persons willing to do such a

robbery. Rather, it knew nothing about them or their criminal

inclinations or experiences until the CI surfaced Simpson

through Curtis, a stranger at a bar. The only criterion the CI

used to select the bar was that it was in a “bad” area where

persons engaged in “criminal activity” were likely to gather. 

This is a much wider net than we have seen in previous cases. 
UNITED STATES V. BLACK 21

Moreover, the stash house robbery was entirely the ATF’s

creation, and it was Zayas who set the parameters for how it

had to be carried out. Thus as to the inception stage of this

sting, the argument for government overreaching has some

force.

Perhaps the most analogous case is Bagnariol, 665 F.2d

877.8 An FBI agent (Heald), as part of a two-year

8 The dissent points out that in most of our decisions rejecting claims of

outrageous government conduct the government targeted an existing

scheme or suspected an individual of wrongdoing before initiating the

sting operation. We agree with the dissent that the absence of those

conditions here supports the defendants’ outrageous government conduct

claim. In light of our precedent, however, we cannot say that this one

factor alone establishes a due process violation. In at least two cases, we

have rejected outrageous government conduct claims where, as here, the

government initiated a sting operation without targeting an existing

scheme or suspecting an individual of wrongdoing. In Bagnariol, the

government approached persons involved with lawful gambling

enterprises authorized under state law. See Bagnariol, 665 F.2d at

880–81. In United States v. Emmert, 829 F.2d 805 (9th Cir. 1987), a

confidential informant approached a college student about locating a

substantial supply of cocaine for a buyer in the area. The government had

no individualized suspicion of the college student as someone who was a

drug user or dealer. Rather, the investigators approached him merely

because they believed he attended a party at which cocaine was used and

he in turn led them to his college roommate, Emmert. See id. at 807, 812. 

We found sufficient proof that Emmert was contemplating criminal

activity simply by his agreement to engage in the criminal activity

proposed by the government. See id. at 812 (“When the government

agents first targeted Emmert for investigation, he had expressed interest

in receiving a portion of the finder’s fee in exchange for brokering cocaine

supplied by Cioe. He was therefore contemplating criminal activity and

further investigation was appropriate.”). Here, although the initial

targeting of the defendants is troubling, it is counterbalanced by the

defendants’ enthusiastic readiness to participate in the stash house

robbery, by their representations that they had committed stash house
22 UNITED STATES V. BLACK

investigation into gambling and political corruption in the

state of Washington, posed as the head of a fictitious

corporation (So-Cal) interested in meeting politicians who,

for a substantial fee, would assure passage of legislation

expanding legalized cardroom gambling that So-Cal wanted

to control. Heald made his interests known to an existing

cardroom owner who in turn introduced him to a lobbyist and

secretary of the Cardroom Owners Association (Gallagher). 

At Gallagher’s suggestion, Heald hired him as So-Cal’s

liaison with state politicians. After several meetings, Heald

agreed that Gallagher and two of his “powerful” political

“friends” (including the Speaker of the state House of

Representatives) would assure passage of the legislation, SoCal would control the expanded gambling business and

Gallagher’s group would get a percentage of the profits. 

Gallagher introduced Heald to the two politicians, who

already knew about the arrangement and agreed to it. 

Following their convictions under several federal anticorruption statutes, Gallagher and one of the politicians

argued that even if they were predisposed to commit the

crimes,9the government’s initiation of the sting operation and

its active involvement thereafter constituted outrageous

government conduct. We acknowledged that the government

might have been “in some respects overzealous,” noting how

robberies in the past, by their independent role in planning the crime and

by the absence of government coercion or pressure.

9 That a defendant may have been predisposed to commit a stash house

robbery does not preclude a claim of outrageous government conduct,

which looks only to the actions of the government under an objective

standard. See McClelland, 72 F.3d at 721 n.1 (“[T]hat the defendant was

predisposed to commit a crime precludes a successful entrapment defense,

but not a government coercion claim or any other claim of outrageous

government conduct.”).
UNITED STATES V. BLACK 23

the FBI had connected with Gallagher: “The government set

Heald up as ‘bait’ by spreading word generally that So-Cal

was interested in promoting gambling legislation and in

meeting politicians who shared that interest. This tactic led

Heald to Gallagh er, who volunteered the services of [the

Speaker and the second politician].” Id. at 882–83.

The government had created the fictional scheme, made

the initial contact with persons not known to be actually

involved in corrupt political activities, but by baiting a pool

of potential candidates for a bribe surfaced these defendants. 

Any qualms we had about this tactic were mitigated,

however, because, “[o]nce the government had set its bait,

appellants responded without further inducement by the

government.” Id. at 882.

Here, too, the government created the proposed crime,

initiated contact with the defendants through the CI’s

approach to Curtis at the Glendale bar, and set the bait – all

without any previous individualized suspicion – or even

knowledge – about the defendants’ criminal history or

activities. It went beyond the government’s more nuanced

approach in Bagnariol of targeting people actually known to

be involved in gambling and politics, creating a fictitious

corporation the crooked politicians could approach with their

own illicit scheme to pass a favorable gambling bill. Here the

government tried to recruit from a more generalized

population, and for a robbery of the government’s design. In

these respects, the government’s role in creating the crime of

conviction was quite strong, raising concerns that it sought to

manufacture a crime that would not have otherwise occurred.

Nonetheless, our concerns are mitigated to a large degree

because Simpson – and, shortly after, Black – told Zayas very
24 UNITED STATES V. BLACK

early and often that they had engaged in similar criminal

activity in the past, in conversations that were recorded on

tape. Simpson represented at the very first meeting with

Zayas that he had both the experience and the connections

necessary to carry out another such robbery with his “goons.” 

He bragged that he had been convicted of four felonies and

17 misdemeanors, all involving drugs or guns, while Black

said he had “just” performed a stash house robbery, had done

so several times and had stash house robberies “down to a

science.”10 Therefore, even though it weighs in the

defendants’ favor that the government had no knowledge of

any past criminal conduct by any of the defendants when the

CI brought Simpson to the first meeting with Zayas,

Simpson’s and Black’s repeated representations that they had

engaged in related criminal activity in the past quickly

supplied reasons to suspect they were likely to get involved

in stash house robberies.11 Moreover, our review of the

10 The defendants emphasize that by these statements they were merely

“puffing,” but the government was entitled to rely on the defendants’

representations of their past criminal conduct. Citing the defendants’

presentence reports, the dissent points out that none of the defendants had

previously been arrested or convicted for committing stash house

robberies. Law enforcement agents, however, did not have the benefit of

those reports at the time of the sting. Rather, the agents reasonably relied

on the defendants’ own, credible representations that they had committed

these robberies in the past. In any event, the presentence reports do not

prove that the defendants had not committed stash house robberies in the

past; the defendants could have committed these crimes without being

caught. As the dissent acknowledges, the presentence reports include a

number of drug-related and robbery convictions. Those offenses are

consistent with a person’s involvement in stash house robberies.

11 We decline to examine the pertinent factors with respect to each

individual defendant separately, as the defendants seem to advocate. The

question before us is whether the government’s conduct was outrageous

in conducting this criminal investigation. As long as the government’s
UNITED STATES V. BLACK 25

record persuades us that once Zayas set his bait, the

defendants “responded without further inducement by the

government.” Bagnariol, 665 F.2d at 882 (emphasis added). 

Instead, they responded with enthusiasm. They were eager to

commit the fictional stash house robbery, and they joined the

conspiracywithout any great inducement or pressure from the

government. Indeed, the defendants before us in this appeal

were recruited by other defendants, not by Agent Zayas or the

CI. We therefore turn to our review of the government’s

conduct once the sting got underway.

C. Government’s Post-Initiation Conduct

In reviewing the government’s conduct once defendants

agreed to the scheme and began its implementation, we are

satisfied that there is no significant evidence of government

overreaching or coercion – significant factors in determining

whether the government acted outrageously.

Government’s encouragement of defendants. The extent

to which the government encouraged a defendant to

participate in the charged conduct is important, with mere

investigation was initiated and performed tolerably with respect to the

operation as a whole, it would undermine law enforcement’s ability to

investigate and apprehend criminals if its otherwise acceptable conduct

became outrageous merely because an individual with no known criminal

history whom the government did not suspect of criminal activity joined

the criminal enterprise at the last minute at the behest of codefendants. Cf.

United States v. Thickstun, 110 F.3d 1394, 1399 (9th Cir. 1997)

(discussing our rejection of derivative entrapment). Ifthere were evidence

that the government purposely and unnecessarily coerced additional

individuals to join the operation (as opposed to those individuals joining

at the behest of coconspirators), then an individualized approach may be

warranted, but there is no evidence of that occurring here.
26 UNITED STATES V. BLACK

encouragement being of lesser concern than pressure or

coercion. See, e.g., Mayer, 503 F.3d at 755 (“There is no

evidence in the record that any coercive relationship existed

between Mayer and Hamer.”); McClelland, 72 F.3d at 721

(rejecting outrageous government conduct claim but noting

that the government agent “did encourage McClelland at

various times”); Shaw v. Winters, 796 F.2d 1124, 1125 (9th

Cir. 1986) (“While there is no evidence that Shaw had dealt

in food stamps before, once they were available he purchased

them willingly and without pressure.”).

There is little evidence of government coercion or

pressure here. Simpson testified that he felt pressure from

Agent Zayas urging him “to do something real quick” in

putting a team together and planning the robbery; and the

compressed time line of the operation and Zayas’ comments

implying that Black and Simpson should involve more

individuals may have placed subtle pressure on defendants to

put a team together and quickly plan the details of the

robbery. But there is no evidence that the government

engaged in inappropriate activity, threats or coercion to

encourage defendants to engage in the robbery. Instead, the

government proposed the stash house robbery, and the

defendants eagerly jumped at the opportunity.

Government’s participation in the crime. We have also

considered various aspects of the government’s participation

in the offense conduct as relevant. The duration of the

government’s participation in a criminal enterprise is

significant, with participation of longer duration being of

greater concern than intermittent or short-term government

involvement. See Greene, 454 F.2d at 786 (finding

outrageous government conduct where the government’s

participation “was of extremely long duration, lasting” about
UNITED STATES V. BLACK 27

three years). We have also looked to the nature of the

government’s participation – whether the government acted

as a partner in the criminal activity, or more as an observer of

the defendant’s criminal conduct – including any particularly

offensive conduct taken by the government during the course

of the operation. See Williams, 547 F.3d at 1201 n.11 (noting

that the government did not engineer the operation given that

the defendant “hatched the bank robbery scheme entirely on

his own, . . . participated in the planning stages of the stash

house robbery[,] . . . arranged for his crew to help him,

including instructing Hollingsworth to bring a gun and a

police scanner to the motel[ and] . . . sold weapons to raise

money to rent the car for the robbery”); Stenberg, 803 F.2d at

431 (“Here, the government agent was not a passive

participant or simply a purchaser or transmitter of contraband

otherwise destined for the market place. To the contrary, he

himself was the perpetrator of the most serious offenses

involved – the actual killing of protected wildlife. Under

different circumstances such active criminal behavior by a

government agent might well result in our upholding a

defense of outrageous government conduct.”); So, 755 F.2d

at 1353–54 (rejecting outrageous government conduct claim

where a defendant provided the “creative inspiration” and

technical arrangements for the money laundering scheme and

the government merely provided “the funds and opportunity

to launder money”). Finally, courts have examined the

necessity of the government’s participation in the criminal

enterprise – whether the defendants would have had the

technical expertise or resources necessary to commit such a

crime without the government’s intervention. See, e.g.,

United States v. Twigg, 588 F.2d 373, 380–81 (3d Cir. 1978)

(reversing conviction where the government “was completely

in charge and furnished all of the laboratory expertise” and
28 UNITED STATES V. BLACK

“[n]either defendant had the know-how with which to

actually manufacture methamphetamine”).

Here, although the government took the initiative of

approaching the defendants and proposing the fictitious stash

house robbery, thereafter it played a minimal role in the

crime. Agent Zayas provided no weapons, plans, manpower

or direction about how to perform the robbery, even when the

defendants sought his advice. The nature of the government’s

involvement therefore is in stark contrast to the government’s

role in cases like Twigg and Greene, in which the government

provided difficult-to-obtain and necessary materials for

criminal activity. See Twigg, 588 F.2d at 380 (“The

Government gratuitously supplied . . . the indispensable

ingredient, phenyl-2-propanone. It is unclear whether the

parties had the means or the money to obtain the chemical on

their own.”); Greene, 454 F.2d at 786 (noting that the

government “offered to provide a still, a still site, still

equipment, and an operator” and “provided two thousand

pounds of sugar at wholesale”).

D. Nature of Crime Being Investigated

Finally, we have considered the need for the investigative

technique that was used in light of the challenges of

investigating and prosecuting the type of crime being

investigated. For example, in Emmert, 829 F.2d at 812, we

concluded that the government’s offer of a $200,000 finder’s

fee inducement during an investigation was not outrageous

because “large sums of money are common to narcotics

enterprises and necessary to create a credible cover for

undercover agents.” Similarly, in Wiley, 794 F.2d at 515, we

approved of the government’s activation of a prison

smuggling scheme “[g]iven the difficulties of penetrating
UNITED STATES V. BLACK 29

contraband networks in prisons.” See also Twigg, 588 F.2d

at 378 n.6 (“[I]n evaluating whether government conduct is

outrageous, the court must consider the nature of the crime

and the tools available to law enforcement agencies to combat

it.”).

As the district court noted, stash house robberies are

largely unreported crimes that pose a great risk of violence in

residential communities. The court permissibly credited

Agent Zayas’ testimony that many home invasions related to

drug deals involve disputes between rival gangs, and trying

to arrest one gang in the act of robbing another can lead to

shoot-outs and hostage taking. The reverse sting tactic was

designed to avoid these risks to the public and law

enforcement officers by creating a controlled scenario that

unfolds enough to capture persons willing to commit such an

armed robberywithout taking the final step of an actual home

invasion. That said, the risks we have identified in such a

government-created fictional operation are not to be taken

lightly. The government does not have free license to forgo

reasonable alternative investigative techniques of identifying

and targeting potential suspects before approaching them. 

And because the operation is fake, we must remain vigilant

that the government does more than set the “bait” and create

criminal convictions by outrageous means. We emphasize

that in this case, the existence of tape and video recordings to

prove what was actually said and done has weighed heavily

in our review of the record. We would be faced with a much

different case if all we had to rely on was the credibility of

the conflicting after-the-fact testimonyof the government and

defense witnesses.

* * *
30 UNITED STATES V. BLACK

“Law enforcement conduct becomes constitutionally

unacceptable where government agents engineer and direct

the criminal enterprise from start to finish. Generation of

new crimes merely for the sake of pressing criminal charges

against the defendant also constitutes outrageous

government,” at least “where the government essentially

manufactured the crime.” Emmert, 829 F.2d at 812–13

(emphasis added) (citations and internal quotation marks

omitted). Nearly three decades ago, we acknowledged that it

is difficult to discern “[t]he point of division at the margins

between police conduct that is just acceptable and that which

goes a fraction too far.” Bogart, 783 F.2d at 1438. That

remains true today. We, however, are satisfied the

government did not cross the line here.12 We cannot say that

the government’s conduct was “so grossly shocking and so

outrageous as to violate the universal sense of justice.” 

Stinson, 647 F.3d at 1209.13

12 We reject Black’s argument that the district court erred in failing to

use its supervisory power to dismiss the indictment. Because this

argument was not raised before the district court, we review for plain

error, and Black advances no argument why any error was plain. As

discussed, the government did not violate the defendants’ recognized

rights or engage in illegal conduct that must be deterred, nor is there any

evidence that the jury’s verdict rested on inappropriate considerations. 

See United States v. Ramirez, 710 F.2d 535, 541 (9th Cir. 1983)

(articulating grounds for exercising supervisory power to dismiss

indictment).

13 Our dissenting colleague raises compelling concerns about the risks

of government overreaching inherent in fictitious stash house sting

operations. We respectfully disagree that, in view of existing precedents

and the record in this case, we can hold the government to have acted

outrageously here.
UNITED STATES V. BLACK 31

II. Sentencing Entrapment

The defendants also contend that the reverse sting

scenario employed an amount of cocaine designed to place

the defendants above the amount triggering the statutory

minimum sentence of 10 years for conspiracy to possess

cocaine with intent to distribute. Sentencing entrapment is an

available defense in fictitious stash house reverse sting

operations and, as noted at the outset of this opinion, we have

cautioned about the risk ofthe government’s manipulating the

sting operation and drug amount to increase the defendant’s

penalty. See United States v. Briggs, 623 F.3d 724, 729–30

(9th Cir. 2010).

“Sentencing entrapment occurs when a defendant is

predisposed to commit a lesser crime, but is entrapped by the

government into committing a crime subject to more severe

punishment.” United States v. Mejia, 559 F.3d 1113, 1118

(9th Cir. 2009). Sentencing entrapment usually arises in the

context of drug transaction crimes, whereby the government

pressures a defendant to purchase or sell more drugs than he

otherwise would, for the purpose of increasing the applicable

sentence. See, e.g., United States v. Staufer, 38 F.3d 1103,

1108 (9th Cir. 1994). In the context of a fictional drug stash

house robbery, a defendant can show sentencing entrapment

by demonstrating that he lacked predisposition – either

through a lack of intent or a lack of capability – to conspire

with others to take by force the amount of cocaine charged. 

See United States v. Yuman-Hernandez, 712 F.3d 471, 475

(9th Cir. 2013). The defendant has the burden of proving

sentencing entrapment by a preponderance of the evidence. 

See id. at 473–74. If the defendant succeeds, the district court

may exclude from its drug quantity calculation the extra

amount caused by the government’s entrapment. See United
32 UNITED STATES V. BLACK

States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995). 

Sentencing entrapment thus permits a downward departure

for purposes of calculating the base offense level under the

Sentencing Guidelines; it also permits a court to sentence a

defendant below the otherwise-applicable mandatory

minimum where the newly calculated drug quantity falls

below the amount triggering a mandatory minimum.

At sentencing, the defendants all asserted sentencing

entrapment and encouraged the court to lower the amount of

cocaine used to determine the base offense level (below the

level 34 otherwise applicable under U.S. Sentencing

Guidelines Manual (U.S.S.G.) § 2D1.1) and that governs the

application of the mandatory minimum on count one.

14

In

rejecting the defendants’ argument, the district court made the

following factual findings:

• The defendants agreed to participate in this crime for

the purpose of making a profit.

• The defendants did not show any reluctance about

participating in the crime.

• The government’s inducement was not overly

burdensome.

• The government suggested the criminal activity.

14 The 10-year mandatory minimum of 21 U.S.C. § 841(b), applicable

to defendants’ § 846 conspiracy conviction, applies when 5 kilograms or

more of cocaine are involved.
UNITED STATES V. BLACK 33

• The defendants were “unable to demonstrate that they

were predisposed to steal less than the 23 kilograms

agents told them was at the stash house.”

• The defendants were able to organize and plan and

came within minutes of actuallyattempting to commit

the home invasion, and they had the capacity to do so.

• There is no evidence suggesting that the government

acted improperly in inflating the quantity of drugs in

the stash house. Instead, the amount reflected the

amount of drugs normally found at stash houses in the

area.

• The government did not minimize the obstacles or

make the robbery overly easy. It involved an armed

robbery, during the daytime, of a stash house guarded

by armed men.

The district court concluded that none of the defendants

met his burden of proving lack of predisposition and declined

to reduce the amount of drugs used in calculating his base

offense level as permitted by Application Notes 12 and 14 of

U.S.S.G. § 2D1.1 (now Application Notes 5 and 26(A)) and

Naranjo, 52 F.3d at 250. The district court also declined to

depart downward under U.S.S.G. § 5K2.12, which permits a

downward departure if a defendant can demonstrate that he

committed the charged offense due to coercion not amounting

to a complete defense. The court found that “other than

presenting the scenario to them, the Government did not take

anyactions to induce these defendants’ participation” and that

“other than the hurried nature of the operation,” there was no

pressure or coercion by the government.
34 UNITED STATES V. BLACK

Black, Mahon and Timmons argue on appeal that the

district court erred in rejecting their sentencing entrapment

arguments. They first argue that they adequately proved a

lack of predisposition, because they had no prior convictions

for robbery or drug trafficking, nor did they own guns. The

district court properly rejected this argument in light of its

findings that the defendants showed no reluctance about

participating in the crime, the government did not induce the

defendants’ participation in the fictitious robbery but simply

presented the opportunity to them, and the defendants jumped

at the opportunity to rob a stash house supposedly containing

23 or more kilograms of cocaine for purposes of making a

profit. Accordingly, they have not shown that they lacked the

intent or capability of taking 22–39 kilograms of cocaine by

force. See Yuman-Hernandez, 712 F.3d at 475.

Alternatively, the defendants argue that even if they may

have been predisposed to commit a crime of lesser

magnitude, the government induced them to commit a greater

crime subject to greater punishment. They fail to explain

how the district court’s detailed factual findings to the

contrary are clearly erroneous, nor do they explain how, in

light of these factual findings, the district court abused its

discretion by declining to lower the amount of cocaine used

to determine the base offense level and mandatory minimum

on count one. See id. at 473–74; Mejia, 559 F.3d at 1118.

Importantly, neither of the policy concerns noted in

Briggs is present here. The amount of cocaine selected for

the robbery scenario was based on a review of the amounts of

drugs used in stash houses in the Phoenix area. Thus, there

is no evidence that the government acted to “inflate the

amount of drugs supposedly in the house and thereby obtain

a greater sentence for the defendant[s].” Briggs, 623 F.3d at
UNITED STATES V. BLACK 35

729. There is also no evidence that the government

“minimize[d] the obstacles that [the] defendant[s had to]

overcome to obtain the drugs.” Id. at 730. As the district

court found, Agent Zayas proposed a particularly dangerous

robbery, which was to take place during daylight hours at a

stash house guarded by armed men.

In any event, any error was harmless. The district court,

having rejected the sentencing entrapment defense,

nonetheless, at the government’s suggestion, departed

downward under U.S.S.G. § 5K2.0(a)(2) from a base offense

level of 34 to a base offense level of 32. The court did so

because it found that although the defendants were willing to

commit this crime for the 23 or more kilograms of cocaine

purported to be in the stash house (corresponding to a base

offense level of 34), they likely would have committed the

crime for an amount between 5 and 15 kilograms, which

corresponds to a base offense level of 32.15It declined to

depart further, however, finding that the defendants would not

have been willing to risk their lives and take the risk of an

armed robbery for fewer than 5 kilograms. Given this

finding, even if the district court had concluded that the

defendants established sentencing entrapment, the applicable

base offense level still would have been 32, and the court

would have had no discretion to sentence defendants below

the 10-year mandatoryminimum. See 21 U.S.C. §§ 841, 846.

 

15 The court explained: “The Government requested at the last hearing

that the Court give a downward departure of two levels that would be

consistent with the five to 15 kilogram range. [Counsel for the

government] explained that the Government wanted to make it clear it was

never trying to artificially inflate the range. And I indicated then, and I

want to restate it now, that I appreciate the Government’s sensitivity to

this subject and agree that a departure is warranted under Section

5K2.0(a)(2).”
36 UNITED STATES V. BLACK

In sum, the district court properly rejected Black,

Timmons and Mahon’s sentencing entrapment arguments. 

Any error would not have affected their sentences.

CONCLUSION

The district court properly denied the defendants’ motion

to dismiss the indictment for outrageous government conduct

and did not abuse its discretion in rejecting the defendants’

sentencing entrapment arguments. We therefore affirm the

defendants’ convictions and sentences.

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

“Lead us not into temptation” is part of a prayer familiar

to many. But few, I believe, would think of this prayer as

addressed to the government of the United States or would

think it necessary to address the government with such a

request. The present case creates a precedent and sets a

framework in which such a prayer addressed to the

government becomes comprehensible and probable. Today

our court gives our 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.

The government of the United States paid a confidential

informant (CI) $100 a day to recruit random persons willing

to rob a cocaine stash house. Brought from Miami to Phoenix

by Agent Richard Zayas of the Bureau of Alcohol, Tobacco,
UNITED STATES V. BLACK 37

Firearms, and Explosives (ATF), the CI testified that he went

to bars in “a bad part of town” and that he was not instructed

to look for particular individuals who were already involved

in an ongoing criminal operation, but simply to recruit anyone

who showed an interest in his conversation.

The CI described his modus operandi in these words:

Q. All right. And in your efforts to recruit

these robbers, what instructions, what

specific instructions were you given by

Agent Zayas?

A. What instructions? Just to go out and, you

know, say – just trying to see what I can

meet back – you know, meet people. 

Meet people, see if they know bad guys,

you know.

Q. Anyone off the street. Is that basically it?

A. Pretty much. No, not – yeah. I mean,

yeah, I go to the bars.

Q. Right. Now, how do you determine if a

person is a bad person without knowing

them or without observing them being

engaged in a crime?

A. Well, it’s hard to determine.

. . .
38 UNITED STATES V. BLACK

Q. Does [Agent Zayas] tell you [to] look only

for persons who you know are about to

commit a crime?

A. No.

Q. No. And, in fact, you have approached

people at restaurants randomly and have

raised potential criminal activity, have

you not?

A. Yes.

The CI selected a seedy bar as a fit place to troll and then

trolled for potential defendants. After several tries, the CI

was introduced to Simpson, who expressed an interest. The

CI brought Simpson to Zayas, who himself was undercover,

posing as a former courier of a Mexican drug ring anxious to

be revenged on his former associates. Zayas told Simpson of

a stash house where once a month there was cocaine awaiting

transportation. In a second meeting with Zayas twelve days

later, Simpson introduced Black as a recruit to the robbery,

adding that no more men would be needed. Zayas suggested

Simpson would need more help, and the others agreed to one

more. At a third meeting with Zayas, Simpson, and Black,

three more persons were recruited. The next day, Timmons

appeared for the first time as the driver. Simpson did not

show up, afraid that he was under surveillance. Zayas told

the men that he had rented a warehouse to store his portion of

the cocaine and asked them to follow him there. Upon

reaching the warehouse, the men were arrested by federal

agents. Simpson was arrested three months later.
UNITED STATES V. BLACK 39

These facts are not disputed. They establish that Zayas

and the CI, acting for the ATF, recruited Simpson to rob the

stash house and that Zayas encouraged Simpson to increase

the number of robbers; that all of the defendants were

informed of the plan to rob a stash house; that unknown to

them, the stash house itself did not exist; and that Zayas

proposed its robbery as the purpose of the plan. From the

start when the CI contacted Simpson to the end when Zayas

told the crew to follow him to the warehouse, the agents of

the government wrote the crime-script and conducted the

defendants in the execution of it.

The opinion of the majority does not hesitate to say,

“Moreover, the stash house robbery was entirely the ATF’s

creation, and it was Zayas who set the parameters for how it

had to be carried out.” Op. at 21. The crimes of conviction,

the opinion states, “resulted from an operation created and

staged by ATF . . . . Zayas invented the scenario including the

need for weapons and for a crew, and the amount of cocaine

involved.” Id. at 15. As the majority acknowledges, the

government had no particular information about the

defendants that would have made them plausible targets of an

investigation. There was a “risk inherent,” the majority

agrees, “that the government could create a criminal

enterprise that would not have come into being but for the

temptation of a big payday, a work of fiction spun out by

government agents to persons vulnerable to such a ploy who

would not otherwise have thought of doing such a robbery.” 

Id. at 16.

The majority opinion does not give full weight to Zayas’s

suggesting an increase in the numbers of the conspirators nor

to Zayas’s directing the conspirators to the location of the

imaginary stash house. These omissions apart, the majority
40 UNITED STATES V. BLACK

opinion lays out in convincing detail how, from beginning to

end, the government wrote the script, found those who would

act in it, and brought its dupes together so that they could be

arrested.

The majority opinion shifts its ground to argue that

precedent justifies its absolution of the ATF. The majority

finds “the most analogous case” to be United States v.

Bagnariol, 665 F.2d 877 (9th Cir. 1981). Op. at 21. The

majority opinion relies on Bagnariol to show that the

government may trap persons not currently engaged in crime. 

But in that case in proving that the defendants had violated

RICO, the government showed that they were part of an

“enterprise” for the purpose of “legalizing and controlling

certain unlawful gambling . . . all through acts involving

extortion, bribery, mail fraud . . . .” Bagnariol, 665 F.2d at

891 (quotation marks omitted). These criminal acts were

charged as acts the defendants were currently engaged in. 

The court concluded: “The government adequately proved

these activities.” Id. The defendants were not convicted or

punished for past lawful activities.

The majority finds its concerns “mitigated to a large

degree” by the claims of Simpson and Black that they had

engaged in similar criminal activity in the past. Op. at 23–24. 

With this argument, the majority opens a new ground for the

government to justify setting up a defendant. Taking Black

and Simpson’s boasts as true, why do the boasts make the

boasters fair game for a government ploy? In fact, the

presentence reports on these defendants in this case show no

stash house activity by either of them. In the population of

this country, there is an indefinite number of persons who

dream of clever and unlawful schemes to make money. Does

their dreamy amorality cast them all as fit candidates for a
UNITED STATES V. BLACK 41

sting by their government? Depraved as a person’s

imagination and hopes may be, what is imagined and hoped

are not the subjects of criminal justice. The majority’s

rationale for permitting the government to tempt the general

population to crime imposes no limits upon the imagination

of agents of the government.

Besides Bagnariol, the government searches among its

previous stings to find a precedent for what the government

did here. The search has not been productive. The

government cites cases where the defendants asserted a

defense of outrageous government conduct and failed to

establish the defense. In United States v. Stenberg, 803 F.2d

422 (9th Cir. 1986), the defendants were already engaged in

the type of illegal transactions the government sought to shut

down, id. at 430. In United States v. Bonanno, 852 F.2d 434

(9th Cir. 1988), the defendants were already involved in an

illegal purchase order scheme, id. at 438. In United States v.

Pemberton, 853 F.2d 730 (9th Cir. 1988), the defendant was

a long-time drug dealer already involved in money

laundering, id. at 732. In United States v. Garza-Juarez,

992 F.2d 896 (9th Cir. 1993), the defendants were already

known to take part in a pre-existing illegal firearm trafficking

scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944

(9th Cir. 2003), one of the largest undercover operations in

history, the defendants were already part of a massive money

laundering scheme in which Mexican banks laundered money

to various drug cartels, id. at 948. In United States v.

Williams, 547 F.3d 1187 (9th Cir. 2008), the defendant was

already wanted for a prior bank robbery; had engaged in

several drug deals with a government informant; and had

planned his second bank robbery in detail and on his own

accord, going so far as to identify a target bank and recruit

someone on the inside of the bank to help. It was only after
42 UNITED STATES V. BLACK

the defendant enlisted a government informant to be his

getaway driver that the ATF pitched the fictitious drug stash

house as a safer alternative to robbing a bank. Id. at 1192. In

each of these cases, the government targeted an existing

scheme or suspected an individual of wrongdoing before

initiating a sting operation.

An Alternative Approach

The majority opinion scarcely offers an explanation for

why it has declined to use the Bonanno test. The test is good

law. Under the Bonanno test, the government’s conduct is

not outrageous when:

(1) the defendant was already involved in a

continuing series of similar crimes, or the

charged criminal enterprise was already in

progress at the time the government agent

became involved; (2) the agent’s participation

was not necessary to enable the defendants to

continue the criminal activity; (3) the agent

used artifice and stratagem to ferret out

criminal activity; (4) the agent infiltrated a

criminal organization; and (5) the agent

approached persons already contemplating or

engaged in criminal activity.

Williams, 547 F.3d at 1199–1200 (quotingBonanno, 852 F.2d

at 437–48 and evaluating whether the government’s conduct

is outrageous by methodically considering each of the five

factors). The origin of the test lay in United States v. Bogart,

783 F.2d 1428 (9th Cir.), vacated in part on reh’g sub nom.

United States v. Wingender, 890 F.2d 802 (9th Cir. 1986). 

Systematically evaluating a number of outrageous
UNITED STATES V. BLACK 43

government conduct cases, Bogart concluded that

“constitutionally unacceptable” are cases where the “crime is

fabricated entirely by the police to secure the defendant’s

conviction rather than to protect the public from the

defendant’s continuing criminal behavior.” Id. at 1438.

The majority opinion concedes that the government here

fails the first, fourth, and fifth factors of the Bonanno test. 

Op. at 18–25. It is undisputed that the defendants were not

involved in a continuing series of similar crimes or a criminal

enterprise alreadyin progress; that the agents did not infiltrate

a criminal organization; and the agents did not approach

persons already contemplating or engaged in criminal

activity.

The cases that decline to use the Bonanno test articulate

a guiding principle. In United States v. Gurolla, 333 F.3d 944

(9th Cir. 2003), for instance, a case that the majority notes as

declining to use the Bonanno test, see Op. at 18 n.7, this court

stated that our lodestar in determining whether the

government conduct is outrageous is whether “the

government did not initiate the criminal activity, but rather

sought to crack an ongoing operation,” Gurolla, 333 F.3d at

950. Plainly, no ongoing operation existed here. Plainly the

government here did initiate the criminal activity.

The majority declares that its “concerns that [the

government] sought to manufacture a crime that would not

have otherwise occurred” are “mitigated to a large degree.” 

Op. at 23–24. This mitigation is due to Simpson and Black

telling Zayas that they had done similar stash house robberies. 

These repeated assurances “quickly supplied,” the majority

says, “reasons to suspect they were likely to get involved in

stash house robberies.” Id. at 24.
44 UNITED STATES V. BLACK

Nothing in the presentence reports on Black and Simpson

shows that they had ever engaged in a stash house robbery.

At least as far as the government knew, they were simply

boasting. For the government agents to believe the boasts

may have been reasonable. But the boasts did not show them

to be currently engaged in this kind of crime. As far as the

government agents knew or believed, Black and Simpson

were neither committing a crime nor engaged in planning a

crime.

According to the presentence reports on the defendants

submitted by the government, Black as an adult of 18 had

been convicted of auto theft and at age 23 had been sentenced

to 90 days in jail for bank robbery. His criminal history

points totaled 7. Mahon as an adult of 21 had been convicted

of criminal possession of a weapon and sentenced to six

months in jail and had at age 24 been sentenced to six months

for possessingmarijuana,with criminal historypoints totaling

5. Alexander as an adult was fined three times for driving on

a suspended license. His criminal points totaled zero. 

Timmons at age 15 was convicted as an adult for robbery in

taking another person’s automobile by force, sentenced to jail

for 5 months, and thereafter returned to jail on several

occasions for violation of probation. He also has several

domestic violence convictions, and he twice has been

convicted of the felony of possessing marijuana. His criminal

history points totaled 16.

No federal crimes are attributed to any of these four

defendants. One defendant has no criminal history points in

his record. Another has only five. Even Timmons’ more

checkered past reflects no major criminal activity. Nothing

the government knew and nothing that the government later
UNITED STATES V. BLACK 45

discovered about their past showed that the defendants were

ready to rob a stash house.

The Amount Of Drugs Was Invented By The ATF

More than 600 persons have been prosecuted for

attempting to rob stash houses which were fictitious. See

Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare

Suspects, USA Today, June 28, 2013, at 1A. According to

ATF’s special operations chief, the sentence that the ATF

seeks is fifteen years. Id.

Our court has voiced concerns at least twice over the

government’s “unfettered ability” to set the sentence by

inflating the fictitious amount of drugs in the fictitious drug

house: United States v. Yuman-Hernandez, 712 F.3d 471, 474

(9th Cir. 2013); United States v. Briggs, 623 F.3d 724,

729–30 (9th Cir. 2010). See also United States v. Caban,

173 F.3d 89, 93 (2d Cir. 1999). In none of these cases have

the courts disapproved the government’s power.

Fictitious stash house stings “are a disreputable tactic,”

Judge Posner has written, because “[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 sentences.” United

States v. Kindle, 698 F.3d 401, 414 (7th Cir. 2012) (Posner,

J., dissenting), cert. denied, 133 S. Ct. 1743 (2013), reheard

en banc sub nom. United States v. Mayfield (7th Cir. Apr. 16,

2013).

Judge Posner observes:

And now consider the role of such stings in

the “war on drugs.” Are they likely to reduce
46 UNITED STATES V. BLACK

the sale and use of illegal drugs? No; they are

likely to have the opposite effect. Stash house

robbers do not increase the amount of drugs in

circulation, since they steal their drugs instead

of making or importing them. The effect of a

fictitious stash house sting, when the person

stung is, unlike [Defendant], a real stash

house robber, is therefore to make stash

houses more secure by reducing the likelihood

of their being robbed. A sting both eliminates

one potential stash house robber . . . and

deters other criminals from joining stash

house robberies, since they may turn out to be

stings. The greater security that fictitious

stash house stings confer on real stash

houses—security obtained at no cost to the

operators of stash houses—reduces their cost

of self-protection, which is a principal cost of

the illegal-drug business. The lower a

business’s costs, the lower the prices charged

consumers, and so the greater the demand for

illegal drugs and the more sales and

consumption of them. The operators of stash

houses would pay law enforcement to sting

potential stash house robbers.

Id. at 416.

Not only are Judge Posner’s observations well taken, it is

a denial of due process for sentences to be at the arbitrary

discretion of the ATF. The agency creating the fictitious

stash house can place any amount of imaginary drugs within

it. The amount must, no doubt, be plausible; this limit aside,

the ATF may make the object of the robbery as large as it
UNITED STATES V. BLACK 47

chooses, thereby effectively choosing the criminal penalties

the defendants will incur. The ATF has free rein to amplify

these penalties and influence the number of defendants by, as

in our case, inventing armed guardians of the imaginary

drugs. In other cases, nothing stops the government from

filing additional charges and obtaining sentencing

enhancements where the defendants, at the government’s

insistence, are found carrying explosives, body armor, or

machine guns.

Conclusion

To sum up, use of an imaginary stash house has no effect

on the actual circulation of illegal drugs but may make actual

stash houses more secure; the imaginary stash house also

gives the government essentially unchecked power to

increase the number of persons drawn in as robbers by

supplying the number of imaginary guards for the drugs and

by supplying the amount of imaginary drugs that are

supposed to be present. The power exercised by the

government is not only to orchestrate the crime but to control

and expand those guilty of it. I do not see how this power can

be rationally exercised. No standard exists to determine the

limits of the government’s discretion.

The four defendants were a portion of the population of

Phoenix unknown by the government to harbor any specific

criminal plans. Never in their past had they been convicted

of a crime of such proportions or a federal crime of any kind. 

They were inveigled by the ATF to agree to commit a crime

which in fact was impossible to commit because the stash

house they agreed to rob did not exist. Besides providing this

imaginary target for their crime, the ATF brought the CIfrom

Miami to recruit them, fed them Zayas’s cover story as to his
48 UNITED STATES V. BLACK

own motivation, told them of the target to be robbed with

detail as to its contents and guards, coached them as to the

number of persons needed for the job, and directed them to

where they would be arrested. The ATF wrote the script, cast

the defendants as the actors, and directed the action to its

denouement.

The United States has enormous resources that could be

used to tempt and trap criminals. If these resources are

deployed to bring an ongoing criminal enterprise to justice,

the country is well served. If these resources are deployed to

fire the imaginations of dreamers of easy wealth and turn

them to conspiring to commit a crime, our government has

been the oppressor of its people.

Massively involved in the manufacture of the crime, the

ATF’s actions constitute conduct disgraceful to the federal

government. It is not a function of our government to entice

into criminal activity unsuspecting people engaged in lawful

conduct; not a function to invent a fiction in order to bait a

trap for the innocent; not a function to collect conspirators to

carry out a script written by the government. As the

executive branch of our government has failed to disavow

this conduct, it becomes the duty of the judicial branch to

refuse to accept these actions as legitimate elements of a

criminal case in a federal court.