F OR P UBLICATION



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

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

,

v

.

C O R D A E L

. B L

A C K , Defendant-Appellant

. N o. 11-10036

D.C. No. 2:09-cr-01040- MHM-4

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

,

v

.

A N G E L M A H O N ,

Defendant-Appellant

. N o. 11-10037

D.C. No. 2:09-cr-01040- MHM-6

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

,

v

.

K E M F O R

D J

. A L E X

A N D E R , Defendant-Appellant

. N o. 11-10039

D.C. No. 2:09-cr-01040- MHM-2U N I T E D S T A T E S V

. B L

A C K 2

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

,

v

.

T E R R A N C E L

. T I M M O N S , Defendant-Appellant

. N o. 11-10077

D.C. No. 2:09-cr-01040- MHM-3

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Mary H. Murg uia, District J udg e, Presiding

Arg ued and Submitted J anuary 16, 2013—San F rancisco, California

F iled October 23, 2013

B efore: J o h n T. Noonan, J r ., Susan P. Graber, and Ray mond C. F isher, Circuit J udg es.

Opinion by

J udg e F isher; Dissent by

J u dg e NoonanU N I T E D S T A T E S V

. B L

A C K 3

SUMMARY *

Crim inal Law

The panel affirmed four defendants’ convictions a nd

s e ntences for conspiracy to possess cocaine with intent to distribute an d u s e of a f irearm in f

urtherance of a d

rug trafficking offense, arising out of a reverse sting operation in which an ATF undercover ag ent recrui ted the defendants to carry out an armed r obbery of a fictional cocaine stash house.

The pan e l affirmed the district court’s denial of the defendants’ motion to di s m iss for outrag eous g overnment conduct. The panel ex plained that a lthoug h the initiation o f
t h e r everse sting operation r aises questions about possibl e overreaching

, the defendants have not met the ex tremely hig h standard of d emonstrating that the facts underly ing their
arrest and prosecution are so e x t reme a s to violate fundamental fairness or are so shocking as to v i o l ate the universal sense of justice.

The panel also affirmed the district court’s rejection of the defendants’ sentencing

entrapment arg

ument.

Dissenting

, J udg e Noonan wrote that the majority g ives approval to th e government tempting persons in the population a t larg e currently eng ag ed in innocent activity a nd leading them into the commission of a s e rious crime, which the g overnment will then prosecute.

* T h is su m m ary co n stitu

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

co u rt staf

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

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

. B L

A C K 4

COUNSEL

Patricia A. Hubbard ( a r g ued), Phoenix

, Ariz ona, for Defendant-Appellant Kemford J . Alex ander.

Tara K. Hoveland (arg

ued), South L ake Tahoe, California, for Defendant-Appellant Cordae L . B lack.

Donald W

. MacPherson (ar gu ed) a nd B radley Scott MacPherson, The MacPherson Group, P.C., Phoenix

, Ariz ona; Nathaniel K. MacPherson, The MacPherson Group, P.C., Encinitas, California, for Defendant-Appel l a n t Ang el Mahon.

F lorence M. B r

uemmer (ar gu e d ), Anthem, Ariz ona, for Defendant-Appellant Terrance Timmons.

Ann B irming ham Scheel, A cting United States Att o r n ey , Randall M. Howe, Deputy Appellate Chief, and Karla Hotis Delord (arg

ued), Assistant United States Attorney , Phoenix

, Ariz ona, for Plaintiff-Appellee ( Nos. 11-10036 and 11- 10039).

J ohn S. L eonardo, United States Attorney
, and K a r l a Hotis Del ord (arg

ued), A cting D eputy Appellate Chief, Phoenix

, Ariz ona, for Plaintiff-Appellee (No. 11-10037).

Ann B irming ham Scheel, A cting U n i t ed States Attorney
, Randall M. Howe, Deputy Appellate Chief, a nd Theresa Cole Rassas, Assistant United States Attorney , Phoenix

, Ariz ona, for Plaintiff-Appellee (No. 11-10077).U N I T E D S T A T E S V

. B L

A C K 5

OP INION

F I SHER, Circuit J udg e :

Defendants Co r dae B lack, Kemford Alex ander, Ang el Mahon a nd Terrance Timmons were convicted of conspiracy
to possess cocaine with inte n t to distribute and use o f a firearm in further an ce of a drug trafficking offense. They

were arrested as part o f a reverse stin g o p e ration set up in Phoenix

, A riz ona by the B u reau o f Alcohol, Tobacco, F irearms a

nd Ex plosives (ATF ). 1 An A TF undercover ag ent, working with a confidential informant, recruited the defendants to carry out an armed r o b b e r y of a (fictional)

c o c a ine stash house. T he defendants readily ag reed, and in
vary ing deg rees participated in plan n i n g the robbery over several day s. They were arrested a s they were on the i r way to rob the supposed stash house.

B e fore t ri al, the defendants moved to dismiss the indictment, c ontending the fake robbery w a s t h e product o f outrag eous g overnment conduct. After three day s of hearing s

on the issue, the district c ourt d enied the motion s i n a thoroug h and thoug h tful 26-pag e order, concluding that “[ o ] n balance, the g overnment appears to h a v e a cted reasonably

, ” and its conduct was “ plainly not so e g reg ious as to shock the ‘universal sense of justice.’” A jury convicted the defendants

on both counts. Count o ne, for conspiracy

, carried a statutory minimum sentence of 10 y ears.

1 A “ rev erse stin g ” o ccu rs w h en th e g o v ern m en t in itiates th e crim i n a l

co n d u ct, settin g u

p a f ictiti o u s crim e an d arrestin g th e crim in als as th ey b eg in to carry o u t w h at th ey b eliev e is a real crim e.U N I T E D S T A T E S V

. B L

A C K 6

At sentencing

, the defendants arg ued the g overnment was g uilty o f sentencing e ntrapment because it deliberately set an

a mount of cocaine in its fictional r o bbery to ens u r e t h e defendants would receive at l e ast a mandatory minimum
sentence of 10 y ears o n the c o n s piracy count. The district
court denied their reques t s t o reduce the quantity of cocaine in calculating their sentences.

W e ag ree with the district court, and affirm the denial o f the defendants’ motions to dismiss f or outrag eous g overnment conduct. A lthoug h the initiation of the reverse sting operation here raises questions ab o u t possible overreaching

, as we shall ex plain, the d efendan t s h a ve not met the “ ex tremely hig h standard,” United States v. GarzaJuarez , 992 F .2d 896, 904 (9th Cir. 1993), of demonstrating that the facts u n d e rl y i ng their arrest and prosecution are so “ex treme” a s to “violate[ ] fundamental fairness” o r a r e “so
g rossly shocking

. . . as to violate the univer s a l s e n s e o f justice,” United States v. Stinson
, 647 F .3d 1 196
, 1209 (9th Cir. 2011). W e also affirm the district court’s rejection o f sentencing entrapnt. 2

B A C K G R O U N D

Several y ears ag o, the B ureau o f Alcohol, Tobacco, F irearms and E x plosives implemented Operation Gideon, conducting a series of undercover sting operations developed
to find and arrest crews e ng ag ing in violent robberies of d rug stash h ouses ( which ATF denominates a s “home invasions”) in residential neig hborhoods. A s an alternative to pl anting fake d rug s in a stash house a

nd confronting the armed robbers

2 Oth er issu es raise d b y t h e s e c on so l id ated ap p eals are ad dressed in a

co n cu rren t ly

f iled m em o ran d u m

d isp o s itio n

.U N I T E D S T A T E S V

. B L

A C K 7

once they broke into the h ouse, ATF developed w hat it believed w as a safer technique. A T F ag ents, w orking undercover, would describe a f ict i t i o us cocaine stash h ouse to s u spects, offering them the opportunity to plan and carry out an armed robbery o f the stash house. Once the r obb ery plan was d eveloped and the c rew members were on their way t o w hat they b elieved was a real armed home invasion, t h e y

were arres t e d

. ATF d ecided to use this investig ative technique in Phoeni x , A riz ona because of the level o f violence and the number o f kidnapping s t h a t had become associated with stash house robberies.

The investig ation and arrest of the defendants here involved a confidential g overnment informant (CI ) and Ag ent Richard Z ay as, an undercover ATF ag ent. ATF broug ht the CI from Miami to Phoenix (where he had n ever been) specifically to assis t i n reverse sting o perations. This work

was the CI ’s sole source of employ ment , f o r w hich the CI was paid $100 per day

. 3

The CI ’s role was to “try a nd find some pe ople that

. . . are willing to g o commit a h ome invasion.” He was to talk to

s u c h individuals, tell them that a friend had all o f t h e information a

bout the home invasion and then set up a

m eeting b etween the individual and Ag ent Z ay as. He testified that he found s u c h individuals by “g o[ ing ] to the bars” and “meet[ ing ] people” w ho he then approached about

3 T h e reco rd u n d erly in g th e district co u rt’s d e c i sio n on th e claim of

o u trag eo u s g o v ern m en t co n d u ct w as th o ro u g h ly d ev elo p ed an d in clu ded

a th ree- d a y h e a r i n g in w h ich Z ay as an d th e CI testif ied an d v id eo an d

au d io tran s crip ts o f all o f th e m eetin g s betw een t h e d ef en d an ts an d Z ay as

w ere p l ay ed f

o r th e co u rt. Un less o th erw ise n o ted

, th e f acts related h ere

co m e f ro m t h e t estim o n y an d reco rd in g s p l ay ed at th o se h earin g s an d f ro m th e d istrict co u rt’ s f

i n d i n g s.U N I T E D S T A T E S V

. B L

A C K 8

possibly becoming involved in such c rimes. I n doing so, he targ e ted bars in “a bad p art of town, a bad bar, y ou know

. . . bars w here y ou’ve g ot

. . . a lot of criminal activity .” He was not instructed to look only for particular individuals, such a s those who were a lready involved in a n ong oing criminal operation or that he knew were abo u t t o commit a crime. Za y as w ould then meet w ith interested individuals “to determine whether or not they are actually involved in that ty pe of c rime” and provide det a i l s o n the fictitious home invasion.

I n J u ly 2009, the CI went to a bar in Glendale, A riz ona to meet people as part of h is 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 w as not interested but said he knew somebody who would b e – Shavo r S impson, aka “B ullet.” Curtis introduced the CI to Simp s o n, and the CI told Simpson he had a friend who “has some information on

a house possibly with some dope in it.” H e asked Simpson whether he would be “interested in puttin g a c r ew tog ether”
to rob the house. Simpson ag reed that he would do it, and the CI set up a meeting between Z ay as and Simpson. 4

On J u ly 16, 2009, Z ay as, Simpson and the CI met in a c ar outside Simpson’s w orkplace. Z a y as proceeded to tell Simpson his c o v e r s t ory : H e was a c ocaine courier w ho transported d

rug s for a g roup of Mex ican drug dealers a nd

was unhappy with the pay h e w as receiving

. He was interested in robbing the Mex ican drug dealers as retribution for h is low pay

. Describing the modus operandi, Z ay as told

4 A ll o f Z ay as’ co n v ersatio n s w ith th e def en d an t s w ere reco r d e d on

au d io o r v id eo ; b u t n o n e o f t h e in teractio n s th e CI h ad w ith Cu rtis an d Sim p so n b ef o re th ey w ere in tro du ced to Z ay as w as reco rd ed

.U N I T E D S T A T E S V

. B L

A C K 9

Simpson that at the beg inning or end of each month, he would receive a c all informing him that the drug s were r e ady for transport a tion at a particular house, and that he would have only 15 minutes to p ick up the drug s or they w ould b e moved
to a new location. W hen he w ould enter the h ouse, he would

see two individuals, at lea s t one of whom would be armed. O n e i n d i v i dual would g o to a back room, obtain 6 to 7 kilog rams of cocaine, g ive the d rug s to Z ay as and te l l h im where to take t h e drug s. Z ay a s also told Simpson that e ach time he did this, he could s e e any where from 22 to 39 kilog rams of cocaine in the living room alone and that he did
not know what mig ht b e in the back room, which contained more cocaine.

Z ay as emphasiz ed sev er al times that he wanted to make

sure the people Simpson involved in the p roposed robbery have the “balls to g o do it b e c ause this ain’t no easy lick.” He testified that, in relating the details reg arding the fictitious stash h ouse, h e purposely chose d e tails that d e m onstrated a particularly hig h potential for dang er and violen c e to ensure that only individuals who “are truly invol v ed in this ty pe o f crime” would ag ree to it and those who were not would back
out.

Simpson told Z ay as that the day before, he had called his “g oons” who wanted to know whether “we g onna murc” 5 the

men inside the stash house or “we g o nna rob” them, to which Z a y as responded that he d id not care. Simpson said that “real nig g e r shoot f

or kill he g otta be down with that shit homey ” and that he and his “g oons” a re “ ready ” and “just waiting on the

. . . say so.” Simpson asked Z ay as numerous times about

5 Z ay as testif

ied th at “ m

u rc” m ean s “ m

u rd er.”U N I T E D S T A T E S V

. B L

A C K 10

“ how many g oons we g onna need.” Each time, Za y a s responded that he did not know and that it was Simpson’s call.

Simpson said that he and one of his “ g oons” “did this shit already ” but his friend “did ten y ears in p rison” because “his home boy snitched.” He told Z ay as that he was “a four time felony dog ” with “17 misdemeanors” consisting of “[ d] r ug s, g uns, drug s, g uns, drug s, g uns, gu n s , d r u g s

. . . that’s all I been locked up for b ro.” He also said that if any one snitched abou t t h e o peration, whether it was one of his g oons o r

someone o n Z a

y as’ side, “we’ll have to murc [ him] .” H e said that his “boy ” h a d every thing necessary to complete the robbery : “He g ot ski masks, he g ot a leather g love and he g ot h i s gu ns. He g ot a AK, he g ot a M16, he g ot a uh, a Des er t Eag le, he g o t a Mac10, g ot a 4 5 G l o c k

. ” H e told Z ay as, “Don’t worry daddy y ou met a real J ama i c a n nig g er, that’s
my family bu s i n e ss, it’s where I work at.” Simpson
sug g ested that they meet a g a i n s oon, after he had a conversation withhis “g oons and whoever g onna ride.”

The seco n d meeting with A g ent Z ay as took place on Sunday

, J uly 26. This time, Z ay a s, the CI and Simpson were joined by Cordae B lack, w hom Simpson introduced as his “rig h t hand soldier.” Z a

y as r e p e ated his cover story about being a disg runtled drug courier and what he knew about the fictitious stash house. B lack proposed several robbery plans. He sug g ested that once Z a y as w as l e t i n t o the stash house, B lack and Simpson would run in r ig ht afterwards to take the occupants by surprise. He also mentioned the possibil ity o f taking an o ccupant to the back room a s a hostag e to obtain the drug s that w ere there. Toward the end of the conversation, he told Z ay a s, “I

g ot this shit down to a science man.”U N I T E D S T A T E S V

. B L

A C K 11

Simpson told Z a

y as that he and B lack needed g uns for the robbery and that they did not have any

. Z ay as said he did not have any either a

nd that if he d i d

, h e w o uld do the robbery himself. B lack eventually said that g e tting “burners” (g u ns) should not be a problem.

W h en B lac k a n d Simpson told Z ay as they intended to perform the robbery without any other crew members, Z ay a s questioned that decision, aski n g if they would be able to handle it or would need more p eople. He said the men in the stash house “ain’t just g onna hand it to y ou.” B lack insisted that having a small crew would be better for taking the stash house by surprise. H e t o l d Z ay as he had “just done this – I just done it a few times.” B lack a n d Simpson eventually said they would probably bring one more crew member.

Z ay as told B lack and Simpson that he would receive the

nex t call about transporting c ocaine in two day s, on Tuesday

, J uly 28. The g roup decided to meet a g ai n o n J u ly 27, a nd Z ay as told Simpson and B lack to bring whoever would be participating in the robbery

. Simpson testifie d at trial that after the J uly 26 meeting with B lack and Ag e nt Z ay as, he met with B lack, Ang el Mahon, K emford Alex ander and Aaron Marsh (who is not involved in this appeal) to further discuss the robbery

. 6

The third meeting with A ge n t Z ay as took place o n J uly 27; B lack, Simpson, Alex ander, Mah o n a n d Marsh were all present. Z ay as asked w hether every one would be d o i n g t h e robbery

, to w hich Alex ander responded, “Yeah.” Z ay as ag ain repeated his cover story and the information he had about the

6 A s p a r t o f h i s p lea ag reem en t , Sim p s o n co o p erated w ith th e g o v ern m en t an d testif

i ed ag ain st h i s co d ef

en d an ts at trial.U N I T E D S T A T E S V

. B L

A C K 12

fictitious stash house. A lex ander asked Z ay as how he wanted the robbery do n e

. Z ay a s responded, “You tell me dude I

mean this is y o ur g ig

, I mean I don’t know about this shit.” Alex a nder asked Z ay as w hat he wanted o ut of the robbery

, to which A g ent Z ay as responded, “[ I ] t’s an even split, bro, even split.” T he g roup made p l ans to meet the nex t d a y at noon. Simpson testified a t trial that after the meeting

, he and the other individuals who had met with Z ay as went to Alex a nder’s h ouse to d iscuss t he robbery

. They d iscussed such items as what each person would do with his portion o f the drug s, who would carry a gu n and how many people would enter the stash house.

The nex t da y , the g roup did not show up to meet Ag ent Z a y as at noon. Z ay as testified that h e felt he was being watched and that the crew was c onducting a surveillance o f him. However, at about 1 2 :25 p.m., as Z ay as was about to leave, B lack, Alex ander, Marsh and Mahon pulled up in two vehicles, along with Terrance Timmons. Simpson did not show up. Z ay as briefly spoke with the i n d i v i d u a ls in e ach vehicle, and A lex ander introduced Timmons as hi s driver. Z a y as told the crew he had rented a w arehou s e unit nearby where they should deliver his portion o f the cocaine from the stash house a

nd asked them to follow him ther e

. Once the
g roup arrived at th e w arehouse location, federal ag ents arrested the robbery crew. A search o f t he vehicles

u n c overed f

our loaded weapons in a hidden compartme n t

. Each of the defendants was c harg e d with and convicted by a jury of conspiracy to possess cocaine with intent to distribute and u se of a firearm in f urtherance of a drug traff i c king offense.U N I T E D S T A T E S V

. B L

A C K 13

S T A N D A R

D O F R E V I E W

W e review de novo the district court’s denial of a motion
to dismiss an indictment d ue to outrag eous g overnment conduct. See Stinson
, 647 F .3d at 1209. I n doing so, we view the evidence in the lig h t m o s t favorable to the g overnment, and we accept the district court’s factual finding s unless they

are c learly erroneous. See United States v. Gurolla

, 333 F .3d 944, 950 ( 9th Cir. 2003); United States v. W illiams

, 547 F .3d 1 187, 1199 n.9 (9th Cir. 2 008). W e review for abuse o f disc r etion the district court’s d ecision n ot to u se its supervisory powers to dismiss an indictment. Se e Stinson
, 647 F .3d at 1209.

W e r eview de novo the district c o urt’s interpretation o f the Sentencing Guidelines. S e e Un i ted States v. Crowe
, 563 F .3d 969, 977 (9th Cir. 2009). W e revi ew f or abuse o f discretion the district court’s rejection of the defen d ants’ sentencing entrapment arg ument. S ee United States v

. Y uman-Hernandez

, 712 F .3d 471, 473 ( 9th Cir. 2013 )

. W e review for clear error the district court’s factual finding s underly ing its sentencing entrapment d e cision. See United States v. Ross , 372 F .3d 1097, 1113–14 (9th Cir. 2004).

D I S C U S S I O N

I. Outrageous G o vernm ent Conduct

Outrag eous g overnment conduct occurs when the actions of law enforcement officers or informants are “so outrag eous that d ue process p rinciples would absolut e ly bar the
go v e r nment from invoking judicial processes to obtain a conviction.” United States v. Russell

, 411 U.S. 423, 431–32 (1973). Dismissing an indictment f or outrag eous g overnmentU N I T E D S T A T E S V

. B L

A C K 14

conduct, however, is “limited to ex treme cases” in which the defendant can d e m o nstrate that the g overnment’s conduct “violates fundamental fairness” and is “ so g rossly shocking and so outrag e ous as to violate the u niversal sense of justice.” Stinson
, 647 F .3d at 1209 (internal quotation marks omitted). This is an “ex tremely hig h standard.” United States v

. GarzaJuarez
, 992 F .2d 896, 904 (9th Cir. 1993) (quoting United States v. S

m i t h

, 924 F .2d 8 89, 897 (9th Cir. 1991)) (internal quotation marks omi t t ed). I ndeed, there are only two reported decisions in which fed e r a l appellate courts have reversed convictions under th i s d octrine. See United States

v. Twigg
, 5 8 8 F .2d 373 (3d Cir. 1978); Greene v. United States
, 454 F .2d 783 (9th Cir. 1971). S ee also State v. Lively

, 9 2 1 P.2d 1035 (W ash. 1996) (reversing d r ug conviction under
state law, but r ely ing on federal cases in finding outrag eous g overnment conduct).

There is no brig ht line dictating when law enforcement conduct crosses the line between acceptable and outrag eous, so “every case must be resolved on its own particular facts.” United S tates v. Bogart
, 7 83 F .2d 1 428, 1 438 (9th Cir. 1986), vacated in part on other grounds sub nom. United States v

. W inge n d e r , 7 90 F

. 2d 802 (9th Cir. 1986) (order). I n assessing the r easonableness of various law enforcement actions and tactics

, h o w ever, we h ave set forth g round rules that provide some g uidance. F or ex ample, it is outrag eous for
g overnment a g ents to “eng ineer[ ] and direct[ ] a criminal
ente r p rise from start to finish,” U nited States v. W

illiams

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

o r the g overnment to u se “ex cessive phy sical o r mental coercion” to convi n c e a n individual to commit a

c r i m e, United States v. McClelland

, 72 F .3d 717, 721 ( 9 t h Cir. 1995). I t is also out ra g eous for the g overnment to “g enerat[ e]

. . . new crimes merely for the sake of p ressingU N I T E D S T A T E S V

. B L

A C K 15

c r i m i n a l charg es.” United States v. Emmert
, 829 F .2d 805, 812 (9th Cir. 1 9 8 7 )

. I t is not o u trag eous, however, to i n f i l t r a t e a criminal org a

niz ation, to approach individuals who

are already involved in or contemplating a criminal act, or to provide necessary items to a c onspiracy

. See United States v

. So
, 755 F .2d 1350, 1353 (9th Cir. 1 985). Nor is it outrag eous for the g overnment to “use ‘artifice and stratag e m t o ferret
out criminal activity .’” Bogart
, 783 F .2d at 1 438 (quoting Sorrells v. United States , 287 U.S. 435, 441 (1932)).

The reverse sting e m p loy ed here larg ely falls within the bounds of law enforcement tactics that have be en h eld

rea s o n a ble. Once presented with the fictitious stash h ouse robbery propos a l

, S impson, B lack ( and, later, their cohorts) readily and actively acted as willin g p a rticipants with a professed ability to c a

rry out a dange r o us armed r obbery

. Nonetheless, there are two troubli n g aspects about this fictional sting and how it came about in the first place.

F irst is the fiction itself. The crimes of c o n v i ction

– conspiracy to possess cocaine with intent to distribute and the

use of firearms in furtherance of drug trafficking – resulted from a n operation created and stag ed by ATF

. M o s t o f the hard evidence ag ainst the defendants consisted of w o rds used
at meeting s Z ay as set u p w ith help fr o m t he CI

. Z ay a s 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 involv e d s howing up at meeting s, including arriving at the parking lot with four hidden, loaded
weapons and then driving to the storag e ware h o use where they were arrested. Although t h o se actions clearly corroborate the defendants’ intent to carry out an armed robbery

, defendants were responding to the g overnment’s script.U N I T E D S T A T E S V

. B L

A C K 16

This leads to our secon d a nd major concern – how the
g overnme n t recruited these defendants. A TF w as not infiltrating a suspected crew of home invasion r obbers, o r seducing persons known t o have actually eng ag ed in such criminal behavior. Rather, ATF found Simpson by “trolling for targ ets.” Lively

, 921 P.2d at 1 046. The CI provocatively
cast his bait in plac e s d e fined only by economic and social conditions: “a bad part of town, a bad bar, y ou know

. . . bars wher e y o u’ve g ot

. . . a lot of criminal activity .” The risk inherent in targ eting such a g eneraliz ed population is that the
g overnment could create a criminal enterprise that would not have come into being b ut for the temptation of a big pay day

, a work of fiction spun out by g o vernment ag ents to persons vulnerable to s u c h a p loy who would not otherwise have thoug ht o f doing such a robbery

. Se e B o g a r t , 783 F .2d at 1436 (“Criminal sanction is not j u s t i fied when the state

m a nufactures crimes that would otherwise not o ccur

. Pu n i s h ing a defendant who c ommits a crime under such circumstances is not needed to deter miscond u c t ; a b sent the
g ove r nment’s involvement, no crime would have been committed

. ”). W e have previously raised such concerns about stash house reverse sting s in addressing the issue o f sentencing entrapment:

I n fictional stash house operations like the o ne at issue here, the g overnment has virtually unfettered ability to inflate the amo u n t o f drug s supposedly in the house an d thereby obtain a g reater sentence for the defendant. I n fact, not o nly is the g overnment free to set the
amount of drug s in a f

ictional stash house at an arbitrarily hig h level, it can also minimiz e the obstacles that a defendant must overcome to obtain the d

rug s. T he ease with which theU N I T E D S T A T E S V

. B L

A C K 17

g overnment can manipulate these facto rs makes us wary of such operations in g eneral, and inclined to take a hard look to ensure that the p roposed stash-house robbery was within the scope of B rig g s’ ambition and means.

United States v

. Briggs
, 623 F

. 3d 724, 7 29–30 (9th Cir. 2 010) (citation omitted). F o r similar reasons , t h e i nitiation of this sting warrants close scrutiny

, and p laces a b urden on the
g overnment to show that o ur c on c e r n s are not borne o ut in this case.

A. F actors Relevant to Outrageous G overnm ent

Conduct

Previous o utrag eous g o vernment c o n duct cases, viewed collectively

, have identified various factors as relevant to wh e t her the g overnment’s conduct was outrag eous: (1) known criminal c haracteristics of the defendants; (2) individualiz ed suspicion o f the defendants; (3) the
g overnment’s role in creating the crime of conviction; ( 4) the
g overnment’s e ncourag ement of the d efe n d a nts to commit the offense c onduct; (5) the n a t u r e of the g overnment’s participation in the offense conduct; and (6) the nature of the crime being p ursued and n ecessity f o r t h e actions taken in lig ht of the nature of the criminal enterprise at issue. I n this
case, the first three are most relevant to the way in which the
g overnment set up the sting ; the fourth and fifth look to the propriety of the g overnment’s o ng oing r o le in the sting

. The last focuses on th e justification for the particular law enforcement strateg y employ ed. These do n ot constit u t e aU N I T E D S T A T E S V

. B L

A C K 18

formalistic checklist, b u t help focus o ur analy sis of the totality of circumstances. 7

B. G overnm ent’s Initiation of the Reverse Sting

Individualized suspicion

. The g o vernment need n ot have individualiz ed suspicion of a defendant’s wrong doing before conducting an undercover investig a tion. See United States v

. Luttrell

, 923 F .2d 764, 764 (9th Cir. 1991) (en banc) (order). W h ether the g overnment had reason to suspect an individual

or identifiable g roup before initiatin g a sting operation is an important consideration, however. See, e.g. , United States v

. Bonanno
, 8 5 2 F .2d 434, 438 (9th Cir. 1988) (noting the
g overnment did not recruit a CI to approach defendants until

an investig ation revealed they w ere already i n v o l v e d in an illeg al scheme); United S tates v

. P emberton

, 8 53 F .2d 730, 732 (9th Cir. 1988) (noting the re v e rse sting operation targ e ted an individual it “suspected to b e a long -time d rug dealer involved in the laundering operation”); Un i t e d States

v. Stenberg

, 803 F .2d 422, 430 (9th Cir. 1986) (“Ag ent Gavitt
met both El l i son and F ike only after his investig ation indicated they were already involved i n c o ntinuing illeg al transactions involving wildlife.”), superseded by statute on

7 T h e p arties cite a f

iv e- f acto r “ tes t ” fr o m U

n ited S ta tes v. Bo n a n n o , 8 5 2 F

. 2 d 4 3 4
, 4 3 7– 3 8 (9 th Cir. 1 9 88 ) (citin g Bo g a rt , 78 3 F.2 d a t 1 4 3 5

– 3 8 ). T h ese f

acto rs h av e n o t b een u sed co n sisten t ly

, h o w ev er, n or

as a d isp o sitiv e test. S

ee, e.g

. , Un ited S ta tes v. G u ro lla

, 3 3 3 F.3 d 9 4 4
, 9 5 0 (9 th Cir. 2 0 0 3 ) (n o t citin g o r em p lo y in g th e Bo n a n n o f

acto rs an d in stead rej ectin g t

h e d ef en dan ts’ ou trag eo u s g o v ern m en t c o n d u ct claim o n th e

m o re g en eral p rin cip le th at “ th e g o v ern m en t d id n o t in itiate th e crim in al activ ity

, b u

t rath er s o u g h t to crack an o n g o i n g o p eratio n ”). B ecau s e w e

are to reso lv e ev ery case o n its o w n p articu lar f

acts, w e tak e acco u n t o f th e Bo n a n n o f

acto rs in o u r an aly sis b u t o n l y as p art o f o u r co n sid eratio n o f all th e circu m stan ces as a w h o le.U N I T E D S T A T E S V

. B L

A C K 19

other grounds as stated in United States v. Atkinson

, 966 F .2d 1270, 1273 n.4 (9th Cir. 1992).

I n s o m e c a ses where the g overnment did not suspect a particular individual, it has focused o n a categ ory of persons it had reason to believe w ere involved in the ty pe of illeg al condu ct being investig ated. An ex ample is Garza-Juarez
, 992 F .2d 896, invo l v i n g an investig ation of illeg al firearm trafficking at swap meets. T he g overnment received a tip that

a Hispanic male at a swap meet n ear Casa Grande, Ariz ona, had illeg ally sold an assault

- t y p e firearm. On that informati o n a l one, an undercover ag ent went to the Casa Grande swap meet looking for Hispanic males and came upon the d efenda nt, who appeared to be selling firearms in numbers ex ceeding those o f a professed “ g un collector.” The
g overnment then lured him in t o a faked sale of illeg al
weapons. See id. at 8 99–900. See also Emmert , 829 F .2d at 812 ( targ eting student who attended a c ocaine party as o ne likely to know drug dealers); United Sta t e s v. Bagnariol

, 665 F

. 2d 877, 882 (9th Cir. 1981) (targ et i ng politicians, political operatives and persons in the g aming business in investig ation of political corruption).

Known criminal characteristics o f defendants

. Closely related to the question o f individualiz e d suspicion is whether

a defendant h ad a crimin a l b ackg r ound or propensity the
g overnment knew about when it initiated its sting operation. See, e.g. , W

illiams

, 547 F .3d at 1200 (noting that bef o r e the
g overnment sug g ested a stash house robbery

, the de f e n d ant

was introduced to the g overnment “as a middleman d r ug dealer”); United States v. Mayer
, 503 F .3d 740, 754 (9th Cir. 2007) (“W hile May er points out there was n o ong oing criminal enterprise that the g overnment was merely try ing to join, May er was c e r tainly a willing and e x p eriencedU N I T E D S T A T E S V

. B L

A C K 20

par t i c ipant in similar activities [ traveling internationally for

sex with boy s] .” (citation omitted)).

Government’s role in cre a t i n g the crime

. Also relevant is whether the g overnment approached the defendant initially

or the de f

e n d ant approached a g o v ernment ag ent, a nd whether the g overnment proposed the criminal enterpri s e o r merely attached itself to one that was already established a nd
ong oing

. See W

illi a ms , 5 4 7 F .3d at 1200 (noting that
g overnment merely p ersuaded the defendant to substitute a stas h h o u s e robbery for the planned bank robbery he h ad initially proposed to the g overnment ag ent); Mayer
, 503 F .3d
at 747 (noting that the defendant was t h e f i rst to b roach the subject of tra v e ling internationally to have sex with b oy s); United States v. W

inslow , 962 F

. 2d 845, 849 (9th Cir. 1992) (“At the time Valentino first targ ete d t h e a ppellants for investig a t ion, both W inslow and Nelson had already
exp r e s s e d i n terest in blowing up establishments frequented b y homosex uals.”); United States v. W iley

, 7 9 4 F.2d 514, 516 (9 t h Cir. 1986) (“The d rug distribution scheme b etween defendant and Garbiso was in ex istence b ef o r e the
g overnment became involved; the g overnment merely activated it.”).

I n the case before us, the g overnment does not contend it had any individualiz ed suspicion of any of the defendants a s being involved in stash house robberies when it dispatched the CI into the field to find pe r s o n s w illing to d o such a robbery

. Rather, it k

new nothing about them or their criminal inclinations or ex p eriences until the CI surfaced Simpson throug h Curtis, a strang er at a bar. The only criterion the CI used to select the bar w as that it was in a “ b a d ” a rea where
persons eng ag ed in “criminal activity” were likely to g ather. This is a much wider n et than w e have seen in previous cases.U N I T E D S T A T E S V

. B L

A C K 21

Moreover, the stash house robbery was entir e ly the ATF ’s creation, and it was Z ay as who set the parameters for how it had to be carried out. Th us as to the inception stag e of this sting

, the arg ument for g overnment overreaching has s o m e force.

Perhaps the most an a l o go u s case is Bagnariol

, 665 F .2d 877. 8 An F B I ag ent (Heald), a s part of a two- y e ar

8 T h e d issen t p o in ts o u t th at in m o st o f o u r d ecisio n s rej ectin g claim s of

o u trag eo u s g o v ern m en t co n d u ct th e g o v ern m en t targ eted an ex istin g sch em e o r su s p ected an in d i v id u al o f w ro n g d o in g b e fo re in itiatin g th e stin g o p eratio n

. W e ag ree w ith th e d i ssen t th at t h e ab s en ce o f th ose

co n d itio n s h ere s u

p p o rts th e d ef

en dan ts’ o u t

rag eo u s g o v ern m en t co n d u ct claim

. In lig h t o f o u r p reced en t, h o w ev er, w e c a n n o t say th at th is on e f acto r alo n e estab lish es a d u e p ro cess v io latio n

. In at least tw o cases, w e h av e rej ected o u trag eo u s g ov ern m en t co n d u ct claim s w h ere, as h ere, th e g o v ern m en t in itiated a stin g o p eratio n w ith o u t targ etin g an ex istin g sch e m e o r su sp ectin g an i n d i v id u al o f w ro n g do in g

. In Ba g n a rio l

, th e g o v e rn m en t ap pro ach ed p erso n s in v olv ed w ith law f u l g am b lin g

en terp rises au th o rized u n d er state l aw

. S e e B a g n a r io l

, 6 65 F.2 d at 8 8 0

– 8 1

. In Un ited S t a t e s v. Emmert
, 8 2 9 F.2 d 8 0 5 (9 th Cir. 1 9 8 7 ), a

co n f id en tial in f

orm an t ap p ro ach ed a co lleg e st u d en t ab ou t lo catin g a

su b stan tial su

p p ly o f co cain e f

o r a bu y er i n th e area. T h e g o v ern m en t h ad

n o in d iv id u alized su sp icio n o f th e co lleg e stu d en t as s o m eo n e w h o w as a d ru g u s e r o r d ealer. Rath er, th e in v estig ato rs ap p ro ach ed h im m erely b ecau se th ey believ ed h e atten d ed a p arty at w h ich co cain e w as u sed an d h e in tu rn led t

h em to h i s co lleg e ro o m

m ate, Em m ert

. S ee i d

. at 80 7
, 8 1 2

. W e fo u n d su f

f icien t p ro o f t

h at Em m ert w as co n t em

p latin g crim in a l activ ity sim

ply b y h is ag reem en t to en g ag e in t h e crim in al activ ity
p r o p o sed b y t

h e g o v ern m en t

. S

ee id

. at 8 1 2 (“ W h en t

h e g ov e r nm e n t ag en ts f irst targ eted Em

m ert f o r in v estig atio n , h e h ad ex p ressed in terest in receiv in g a p o rtio n o f t

h e f in d er’ s f ee in ex ch an g e f

o r b ro k erin g co cain e

su p p lied by Cio e. He w as th eref o re co n tem

p latin g crim in al activ ity

an d f u rth er i n v estig atio n w as ap p ro p ria t e

. ” )

. Here, alth o u g h th e in itial targ etin g o f th e d ef

en d an ts is t

ro u b lin g , i t i s co u n terb alan ce d b y t h e d ef en d an t s’ en th u siasti c r e a d in ess to p articip ate in th e stash h o u s e

ro b b ery , b y th eir rep resen t atio n s th at th ey h a d c o m m i tted stash h o u s eU N I T E D S T A T E S V

. B L

A C K 22

investig ation into g ambling and politic a l c o rruption in the
state of W ashing ton, posed as the head o f a fictitious corporation (So-Cal) interested i n meeting p oliticians who, f o r a substantial fee, w ould assure passag e of leg islati o n

ex p anding leg aliz ed cardroom g ambling that So-Cal wanted
t o c o ntrol. Heald made h is interests known to an ex is t i n g cardroom o wner who in turn introduced h im to a lobby ist a nd secretary of the Cardroom Own ers Association (Gallag her). At Gallag her’s sug g estion, H eald h i red him as So-Cal’s liaison with state pol i t i c i a ns. After several meeting s, Heald
ag reed that Gallag her and two of h i s “powerful” political “friends” (including the Speaker of the state House o f Representatives) would assure passag e of the leg islation, SoCal would control the ex panded g ambling business a nd Gallag her’s g roup would g e t a percentag e o f the profits. Gallag her introduced Heald t o the two politicians, w ho already knew about the a rrang ement and ag re e d t o it. F ollowing their convictions under several federal anticorruption statutes, Gallag her and one of the politicians

a r g ued that even if they were predisposed to comm i t t h e crimes, 9 the g overnment’s initiation of the sting operation a nd its active involvement thereafter constituted outrag eous g overnment conduct. W e acknowledg ed that the g overnment mig ht have been “in some r espects overz ealous,” noting h ow

ro b b eries in th e p ast, b y th eir in d ep en d en t ro le i n p lan n in g th e crim e an d b y th e ab s en ce o f

g ov ern m en t co ercio n

o r p ressu re.

9 T h at a d ef

en d an t m ay h av e b een pred isp osed to co m m it a stash h o u s e

ro b b ery d o es n o t p reclu d e a claim o f o u trag eo u s g o v ern m en t co n d u ct,

w h ich lo o ks o n l y to th e actio n s o f th e g o v ern m en t u n d er an o b j ectiv e stan d ard

. See McClella n d

, 7 2 F.3 d at 7 2 1 n .1 (“ [T ]h at th e d ef en d an t w as p red isp o sed to co m

m it a crim e p reclu des a su ccessf u l en trap m en t d ef

en se, b u t n o t a g o v ern m en t co e r c i o n claim o r an y o t h er claim o f o u

trag eo u s g o v ern m en t co n d u ct.”).U N I T E D S T A T E S V

. B L

A C K 23

the F B I had connected with Gallag her: “The g overnment set Heald up as ‘bait’ by spreading word g enerally that So-Cal

was interested in p ro m o t ing g ambling leg islation a nd in meeting politi c ians who shared that interest. This tactic led Heald to Gallag h e r , w h o v o l u n t e e r e d t h e s er v i c e s o f [ th e Speaker and the second politician] .” Id. at 882–83.

The g overn m e n t had created the fictional scheme, made the initial c ontact with perso ns not known to be actually involved in c orrupt political activities, but by b a iting a pool of potential candidates for a bribe surfaced these d e fendants. Any qualms we had about this tactic w ere mitig ated, however, b ecause, “[ o] nce the g overnment had se t i t s bait, appellants res p o n d ed without further inducement by the
g overnment.” Id. at 882.

Here, too, the g overnment created the p roposed crime, initiated contact with the defendants thro u g h the CI ’s
app r o a c h to Curtis at the Glendale b ar, and set the bait – all without any previous individualiz e d suspicion – o r even knowledg e – about the defendants’ criminal history o r activities. I t went bey o nd the g overnment’ s m o r e nuanced approach in B agnariol of targ eting p eople actually k nown to be involved in g ambling and p o l i t i cs, creating a fictitious corporation the crooked p oliticians could approach with their

own illicit scheme to pass a favorable g ambling bill. Here the
g overnment tried to recruit fr o m a more g eneraliz ed population, and for a robbery of the g overnment’s desig n. I n these respects, the g overnment’s role in creating the c rime o f conviction w as quite strong , raising concerns that it soug ht to manufacture a crime that would not have otherwise o ccurred.

Nonetheless, our concerns are mitig ated to a larg e deg r ee because Simpson – and, shortly after, B lack – told Z ay as veryU N I T E D S T A T E S V

. B L

A C K 24

early and often that t h e y had eng ag e d in similar criminal activity in th e past, in conversations that w ere recorded on tape. Simpson represent e d at the very first meeting with Z a y as that he had both th e e x p e r ience and the connections
necessary to carry out another such r obbery with his “g oons.” He brag g ed that he had been convicted of four felonies a nd 17 misdemeanors, all involvi n g drug s or g uns, while B lack said h e h ad “just” p e r formed a stash house robbery

, h ad done

so several times and had stash h ouse robberies “down to a science.” 1 0 Therefore, e v e n thoug h it w e i ghs in the defendants’ favor that the g over n m e n t had no knowledg e o f
any past criminal conduct b y any of the defendants when the CI broug h t Simpson to the first meeting with Z ay a s , Simpson’s a

nd B lack’s repeated representations that they h ad
eng ag ed in r elated criminal a ctivity in the past quickly
supp l ied reasons to suspect they were likely to g et involved in stash house r obberies. 1 1 Moreover, ou r review of the

10 T h e d ef

en d an ts em

p h asize th at b y th ese statem en ts th ey w ere m erely

“ pu f fi n g ,” bu t th e g o v ern m en t w as en titled to rely o n th e d ef en d an ts’

r ep resen tatio n s o f th eir past crim in al co n du ct. Citin g t h e def en d an t s’
p resen t en ce rep orts, th e d issen t po i n ts o u t th at n o n e o f th e def en dan ts h ad
p rev io u sly b een arrested o r c o nv icted f o r co m m i ttin g stash h o u s e

ro b b eries. L aw en f

o rcem en t ag en ts, h o w ev er, d id n o t h av e th e b en ef it of th o se rep o rts at th e t im e o f th e stin g

. Rath er, th e ag en ts reaso n ab l y relied

o n t h e d ef en d an ts’ o w

n , cred ib le rep resen tatio n s th at th ey h ad co m m i tted th ese ro b beries in th e past. In an y ev en t, th e p rese n t e n c e r e p orts d o n o t p ro v e th at th e d ef

en d an ts h ad n ot co m

m itted stash h o u se ro bb eries in th e p ast; th e d ef

en d an ts co u ld h av e co m

m itted th ese crim es w ith o u t b ein g

cau g h t. A s th e d issen t ack n o w led g es, th e p resen ten ce rep o rts in clu d e a

n u m b er o f d ru g

- r e l a ted an d ro b b ery co n v ictio n s. T h o se of f en s es are

co n sisten t w ith

a p erso n ’ s in v olv em en t in stash h o u se ro b b eries.

11 We d eclin e to ex am in e t h e pert i ne n t fa c t o rs w ith resp ect t o each in d iv i d u al d ef

en d an t sep arately

, as th e d ef en d an ts seem to ad v o cate. T h e q u estio n b ef

o re u s i s w h eth er th e go vern m en t’s co n d u ct w as o u trag eo u s in co n d u ctin g th is crim in al in v estig atio n

. A s l o n g as th e g o v ern m en t’ sU N I T E D S T A T E S V

. B L

A C K 25

record persuades us that once Z ay a s set his bait, the defendants “re sponded without further inducement by the government .” Bagnariol

, 665 F

. 2d at 882 (emphasis added). I nstead, they responded with enthusiasm. They were eag er to commit the f

ictional stash house robbery

, and they joined the conspiracy without any g reat inducement or pressure f rom the
g overnment. I

ndeed, the defendants before us in this appeal

were recruited by other defendants, not by Ag ent Z ay as or the CI

. W e the r e fore turn to our review o f the g overnment’s conduct once the sting

g o t underway

.

C. G overnm ent’s P ost-Initiation Conduct

I n reviewin g the g o vernment’s conduct once defendants
ag reed to the scheme and beg an its i mplementation, we a re satisfied that t here is no sig nificant e v idence of g overnment overreaching or c oercion – sig nificant factors in d etermining whether the g overnment acted outrag eously

.

Government’s encouragement of defendants

. The ex tent to which the g o vernment e n courag ed a def e n d ant to participate in the charg ed conduct is i m portant, with mere

in v estig atio n w as in itiated an d p erf orm ed to lerab ly w ith r e s p ect t o th e

o p eratio n as a w

h o l e, it w o u ld u n d erm i n e law en f o rcem en t ’s a b i lity to in v estig ate an d ap p reh en d crim i n al s i f its oth erw ise accep tab le co n d u ct b ecam e ou trag eo u s m erely becau s e an i n d iv id u al w ith n o k n o w n crim in al h isto ry w h o m th e g o v ern m en t d id n o t su sp ect o f crim in al activ ity j o in ed th e crim in al en terp rise at th e last m in u te at th e beh est of co d ef

en d an ts. Cf. Un ited S ta tes v. Th ickstu n , 1 1 0 F.3 d 1 3 9 4
, 1 3 9 9 (9 th Cir. 19 9 7) (d iscu ssin g o u r rej ectio n o f d eriv ativ e en trap m en t). If th ere w ere ev id en ce th at th e g o v ern m en t p u rp o sely an d u n n ecessar i l y co erced ad d itio n al in d iv i d u als to j o in th e o p eratio n (as o p p o s ed t o th o se in d iv id u als j o in in g at th e b eh est o f

co co n sp irato rs), th en

an in d iv id u alized ap p ro ach m ay b e

w arran t ed , b u t th ere is n o ev id en ce o f th at o ccu rrin g h ere.U N I T E D S T A T E S V

. B L

A C K 26

encourag ement b e ing of lesser c o ncern than pressure o r

c oercion. See, e.g. , Mayer
, 503 F .3d at 755 (“There is no evidence in the record that any coercive relationship e x isted b etween May er and H amer.”); McClelland

, 72 F .3d a t 7 2 1 (rejecting outrag eous g ove r n m e nt conduct claim but noting that the g ov e r n m ent ag e nt “did encourag e McClelland at various times”); Shaw v. W inters
, 796 F .2d 1124, 1125 ( 9 t h Cir. 1986) (“W hile there is no evidence that Shaw had dealt in food stamps before, o nce they were available he purchased them willing ly

and without pressure.”).

There is little evidence of g overn ment coercion o r pressure here. Sim p s o n t e stified that he felt pressure from Ag ent Z ay as ur gi n g h i m “to do something real quick” in putting a team tog ether and planning t h e robbery ; and the compressed time line of the operation and Z ay as’ c omments imply ing that B lack a

n d Simpson should involve mor e individuals may have placed subtle pressure on defendants to put a team tog ether and quickly p lan the det a i l s o f the

ro b b e r y

. B ut there is no evidence that the g overnment eng ag ed in inappropriate activity

, threats o r coercion to encourag e defendants to eng ag e in t h e r o bbery

. I nstead, the
g over n m e n t proposed the stash house robbery

, and the defendants eag erly

jumped at the opportunity

.

Government’s participation in the crime

. W e h a v e also considered v arious aspects of the g overnment’s participation in the offen s e c o n duct as relevant. The duration of the
g overnment’s participation in a criminal e nterprise is sig nificant

, with participation of long er duration b eing o f
g reater concern than intermit t e n t or short-term g overnment involvement. See Greene
, 454 F .2d at 786 (finding outrag eous g o vernment conduct where the g overnment’s participation “was of ex tremely long duration, lasting ” aboutU N I T E D S T A T E S V

. B L

A C K 27

three y e a r s )

. W e have also looked to the nature of the
g overnment’s participation

– whether the g overnment acted

as a partner in the criminal a c tivity

, or more as an observer o f the d efendant’s criminal conduct

– including any p a rticularly offensive conduct taken by the g o vernment d u ring the course of the operation. See W

illiams

, 547 F .3d at 1201 n.11 (noting that the g overnment did not eng ineer the operation g iven that the defendant “hatched the bank r obbery scheme entirely on h i s own,

. . . participated in the planning stag es of the st a s h house robbery [ ,]

. . . arrang ed f o r his crew to h elp him, including instruc t i n g H olling sworth to bring a g un and a police scanner to the motel[ and]

. . . sold w e a p o ns to raise
money to rent the car for the robbery ”); S tenberg

, 803 F .2d at 431 (“Here, th e g overnment ag ent was not a p assive participant or simply a purchaser or transmitter of contraband otherwise destined for the market place. To the contrary

, he himself was the p e r

petrator of the m o st serious o ffenses involved – the actual k illing of protected wild l i f e

. Under different circumstances such a c tive crimi n a l behavior by a g overnment a ge n t mig ht well result in our upholding a defense o f outrag eous g o vernment conduct.” ) ; So
, 755 F .2d
at 1353–54 (rejecting

outrag eous g overnment conduct claim where a defendant provided the “creative ins p iration” a nd technical arrang ements for the money laundering scheme a nd the g overnment merely provided “the funds and opportunity
to launder money ”). F inally

, courts have ex a m i ned the necessity o f the g ov e rn ment’s p articipation in the criminal
ente r prise

– whether the defendants would have had the technical ex pe rtise or r esources necessary to commit such a crime without the g overnment’s intervention. S ee, e.g. , United States v. Twigg
, 588 F .2d 373, 3 80–81 (3d Cir. 1 978) (reversing conviction where the g overnment “was completely in charg e and furnished a ll of the labo r a t o r y ex pertise” a ndU N I T E D S T A T E S V

. B L

A C K 28

“[ n] either defendant had the know-how with w hi c h t o actually manufacture methamphetamine”).

Here
, a lthoug h the g overnment took the initiative o f approaching the d efendants and proposing the fictitious stash house robbery

, thereafter i t p l a y e d a minimal role in the crime. A g ent Z ay a s provided no weapons, plans, manpower

or direction a

bout how to perform the robbery

, even when the defendants soug ht his advice. The nature of the g overnment’s involvement therefore is in stark contrast to the g overnment’s role in cases like Twigg and Greene
, in which the g overnment provided difficult-t o

- o btain a nd necessary materials for

c r i m i n al activity

. See Twigg
, 588 F .2d at 380 ( “Th e Government g ratuitously su p p l ied

. . . the indispensable ing redient, pheny l-2-propanone. I t is unclea r w h ether the parties had the means or the money to obtain the chemical on their own.”); Greene
, 454 F .2d at 7 8 6 (n o t ing that the
g overnment “ offered to p rovide a still, a still s ite, still equipment, and an operator” and “provided two tho u s a n d pounds of sug ar at wholesale”).

D . Nature of

Crim e Being Investigated

F inally

, we have considered the need for the investig ative tech n i q u e that was u sed in lig ht of the challeng es o f investig ating a n d prosecuting the ty p e of crime being investig ated. F or ex a mple, in Em m e r t , 8 2 9 F

. 2d at 812, we concluded that the g overnment’s offer of a $200,000 finder’s fee inducement during a

n investig ation was not out r a ge o us because “larg e sums of money are common to narcotics enterprises and neces s a r y t o create a credible cover for undercover a g e nts.” Similarly

, in W iley

, 794 F .2d at 5 15, we app roved of the g overnment’s activation of a prison

s m ug g ling scheme “ [ g ] iven the difficulties of penetrati n gU N I T E D S T A T E S V

. B L

A C K 29

c ontraband networks in p risons.” See also Twigg
, 588 F .2d
at 3 78 n.6 (“[ I ] n evaluating w hether g overnment conduct is outrag eous, the court must consid e r t he nature of the crime and the tools available to law e n forcement ag encies to c ombat it.”).

As the district cou r t noted, stash house robberies a re larg e ly unreported crimes that pose a g reat risk of violence in residential c ommunities. The court permissibly credited Ag ent Z ay as’ testimony that many home invasions related to drug deal s involve disputes between rival g a ng s, and try ing
to arrest one g ang in th e act of robbing another c an lead to shoot-outs and host a g e taking

. The reverse sting tactic was desig ned to a void these r isks to the public and law

e n forcement officers by creating a c o ntrolled scenario t h at unfolds e noug h to capture p ersons willing to commit such an armed robbery without taking the final step of an actual home invasion. That said, the risks we have identified in such a g overnment-created fictional o peration ar e n o t to b e taken lig htly

. The g overnment does not have free l i cense to forg o reasonable alternative investig a tive techniques of identify ing and targ e ting potential suspects b efore app r o aching them. And because the operation is fake, we m u s t remain vig ilant that the g overnment does more than set the “bait” and c reate criminal c onvictions by o utrag eous means. W e emphasiz e that in this case, the ex istence o f tape and video recording s to prove what was actually said and done has weig he d h e a v i ly in our review of the record. We would b e faced with a much different c ase if all we had to rely o n w a s the credibility o f the conflicting after-the-fact testimony of the g overnment a nd defense witnesses.

* * *U N I T E D S T A T E S V

. B L

A C K 30

“L aw enforcement conduct becomes constitutionally unacceptable where g overnment ag e nts eng ineer a n d direct the crimi n al e n terprise from start to finish

. Generation o f new crimes merely

for the sake of pressing criminal charg e s

a ga i n s t t h e d e f

e n d a n t a l s o c o n s t i t u t e s o u t r a ge o u s g overnment,” at least “where the go vernment essentially manufactured the crime .” E mmert , 829 F .2d a t 812–13 (emphasi s ad ded) (citations and internal quotation marks omitted). Nearly three d ecades ag o , w e acknowledg ed that it is d ifficult to d iscern “[ t] he point of division a t the marg ins between police conduct that is just acceptable and that which
g oes a fraction too far.” B o gart , 783 F .2d at 1 438. That remains true today

. W e, however, are satisfied t he
g overnment did not cross the line here. 1 2 W e cannot say that the g overnment’s conduct was “so g rossly shocking and so outrag eous a s to v iolate the universa l s e nse of justice.” Stinson , 647 F .3d at 1209. 1 3

1 2 W e rej ect B lack ’ s arg u m en t th at th e d istrict co u rt erred in f ailin g t o

u se its su

p erv i so ry p o w er to d ism iss t h e in di c t m e n t

. B ecau se th is
arg u m en t w as n o t raised b ef ore th e d istrict co u rt, w e rev i e w fo r p lain

erro r, an d Black ad v an ces n o arg u m en t w h y a n y erro r w as p l ain

. A s d iscu ssed

, t

h e g o v ern m en t d id n ot v io late th e d ef en d an ts’ reco g n ized rig h ts o r en g ag e in illeg al co n d u ct th at m u st b e d eterred , n o r is th ere an y

ev id en ce th at th e j u ry ’ s v erd ict rested o n i n a p pro p riate co n sid eratio n s. S ee Un i ted S ta tes v. Ra mirez
, 7 10 F.2 d 5 3 5
, 5 4 1 (9 th Cir. 19 8 3) (articu l atin g g ro u n ds f

or ex ercisin g su

perv iso ry p o w er to dism i ss in d ictm en t).

13 Ou r d issen tin g co lleag u e r a i ses co m p ellin g co n cern s ab ou t th e risk s

o f g ov ern m en t ov erreach in g in h eren t in fi c t itio u s stash h o u se stin g

o p eratio n s. We resp ectf

u lly d isag ree th at, in v iew o f ex istin g p reced en ts

an d th e reco rd in t h i s case, w e can h o ld th e g o v ern m en t to h av e acted

o u trag eo u s ly

h ere.U N I T E D S T A T E S V

. B L

A C K 31

II. Sentencing Entrapm ent

T h e d efendants also contend that the reverse stin g

s c enario employ ed an amount of cocaine desig ned to p l ac e t h e defendants above the amount trig g ering the statutor y minimum sent e nce of 10 y ears for conspiracy to possess cocaine with intent to distribute. Sentencing e ntrapment is an available defense in fictitio u s stash h ouse reverse sting operations and, as n oted at the outset of this opinion, we have

c a utioned a bout the risk o f the g overnment’s manipulating t h e sting ope r a t ion and drug amount to increase the defendant’s penalt y

. S

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

“Sentencing entrapment o ccurs when a d e f endant is predisposed to commit a lesser crime, but is entrapped by the
g overnment into committing a crime subject to more severe punishment.” United States v. Mejia
, 5 59 F .3d 1113, 1118 (9th Cir. 2009). Sentencing entrapment usually arises in the
contex t of drug transaction crimes, whereby the g overnment pressures a defendant to purchase or sell more drug s 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). I n the contex t of a fictional drug stash house robbery , a defendant can show sentencing entrapment by demonstrating that he l a c k ed predisposition – either throug h a lack of intent o r a lack of capability – to conspire with others to ta k e b y f

orce the a mount of cocaine charg ed. See United States v. Y

uman-Hernandez

, 7 1 2 F .3d 471, 475 (9th Cir. 2013). The defendant has the burden of p r o v i ng sentencing entrapment by a preponderance of the e vid e n c e

. See id. at 4 73–74. I f the defendant succeeds, the district court may ex clude f

rom its drug q u an tity calculation the ex tra amount caused by the g overnment’s entrapment. See UnitedU N I T E D S T A T E S V

. B L

A C K 32

States v. Naranjo
, 52 F. 3 d 2 4 5, 250 (9th Cir. 1995). Sentencing e nt r apment thus permits a downward departure for purpo s es of calculating the base offense level under the Sent e n c ing G uidelines; it a lso permits a court to sentence a defendant b elow the otherwise

- applicable mandatory minimum wher e t h e n ewly c alculated drug quantity f alls below the amount trig g ering a mandatory minimum.

At sentencing

, the d e f

endants all asserted sentencing entrapment and encourag ed the court to lower the a mount o f cocaine u s e d t o determine the base o ffense level (below the level 3 4 otherwise applicable under U

. S

. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1) and that g overns the application of the mandatory minimum on count o n e

. 1 4 I n rejecting the defendants’ arg ument, the district court made the following factual finding s:

• The defendants ag reed to participate in this crime for the purpose of making

a profit.

• The defendants did not show any relucta nce about participating in the crime.

• The g overnment’s inducement was not overly burdensome.

• The g o vernment sug g ested the criminal activity

.

14 T h e 1 0- y ear m an d ato ry m in im u m o f 2 1 U.S.C. § 8 4 1 (b ), ap p l i c ab le
to d ef en d an ts’ § 8 4 6 co n s p iracy co n v ictio n , ap p l ies w h en 5 k ilo g ram s or

m o re o f co cain e are in v o l v ed

.U N I T E D S T A T E S V

. B L

A C K 33

• The defendants were “ u nable to d emonstrate that they

were predisposed to st e al less than the 23 kilog rams ag ents told them was at the stash house.”

• The d efendants were a ble to org aniz e and plan a nd

came within minutes of actually a ttempting to commit the h ome invasion, a

n d they had the capacity to d o so.

• There is no evidence sug g e sting that the g overnment acted improperly in inflating the quantity of drug s in the stash house. I n s tead, the a mount reflected the
amount of drug s n ormally found at stash h ouses in the

area.

• The g overnment did not minimiz e the o b stacles o r make the robbery overly easy

. I t involved an armed robbery

, d

uring the day

time, of a stash house g u arded by armed men.

The d istrict court concluded that none o f the defendants
met his burden of proving lack of predisposition and declined
to reduce the a mount of drug s used in c a l c u l a t ing his base offense level as permitted by Application Notes 12 a nd 14 o f U.S.S.G. § 2D1.1 (now Application Notes 5 and 26(A)) and Naranjo
, 52 F

. 3 d at 2 50. The district court also declined to depart downward under U.S.S.G. § 5 K2.12, which permits a downward departure if a defendant c a n demonstrat e that he committed the charg e d offense due to coercion not amounting
to a complete d e f

e n s e. The court found that “other than presenting the scenario to them, the Government did not take
any act ions to induce these defendants’ participation” and that “other than the hurried nature of the operation,” there was no pressure or coercion by

the g overnment.U N I T E D S T A T E S V

. B L

A C K 34

B lack, Mahon and T immons arg u e on appeal th a t the district court erred in rejecting their sentencing en t r a p ment

a rg uments. They first a

rg ue that they adequately proved a lack o f predisposition, because they had no prior convictions for robbery or drug trafficking

, nor d id they own g u ns. The district court p roperly rejected this arg ument in lig ht of its finding s that the defendants showed n o r e l uctance about participating in the crime, the g overnment did not induce the defendants’ p articipation in the fictitious robbery but simply presented the opportunity to them, and the defendants jumped
at the opportunity to rob a stash h ouse supposedly c ontaining 23 or more kilog rams o f c o c a ine for purposes of making a profit. According ly

, they have not shown that they lacked the intent or capability of taking 22–39 kilog rams of cocaine b y force. See Y

uman-Hernandez , 712 F .3d at 475.

Alternatively

, the defendants arg ue that even if they may have been predisposed to commit a crim e o f lesser
mag nitude, the g overnment induced them to commit a g reater crime subject to g reater punishment. Th e y fail to e x plain how the district c ourt’s d etailed factual f i n d ing s to the contrary are clearly e rroneous, n or d o they ex plain how, in lig ht of these factual findin g s , the district court abused its discretion b y declining to lo w er t h e amount of cocaine used
to d etermine the base offense level and mandatory minimum
on count one. See id. at 473–74; Mejia , 559 F .3d at 1118.

I mportan t l y , neither of the policy concerns noted in Briggs is pres e n t h e r e. T h e amount of cocaine selected for the robbery scenario was based on a review of the amounts o f drug s used in stash h o uses in the Phoenix area. T h u s , there is no evidence that the go v e r n m ent acted to “inflate the amount of drug s supposedly in the house and thereby

obtain

a g reater sentence f

or the defendant[ s] .” Briggs
, 623 F .3d atU N I T E D S T A T E S V

. B L

A C K 35

729. There is also no e vidence that the g over n m e n t “minimiz e [ d] the o bstac les that [ the] d efendant[ s had to]

overcome t o o btain the drug s.” Id. a t 730. As the district
court found, Ag ent Z ay as p roposed a particularly d ang ero u s robbery

, which w as to take p l a ce during day lig ht hours a t a stash house g uarded by

armed men.

I n any event, any error was harmless. The district court, having rejected the sentencing entrapme n t defense, nonetheless, at the g overnme n t ’s sug g estion, departed downward u nder U.S.S.G. § 5K2.0(a)(2) from a base offense level of 34 to a b a se of

fe n se level of 32. The court did so because it f

ound that althoug h the d efendants were willing to commit this crime for the 23 or more k ilog rams of cocaine
p u rported to be in the stash house (corresponding to a b a s e offense level o f 34), they likely would have committed the crime for an amount b etween 5 a n d 15 kilog rams, which corresponds t o a base offense level o f 32. 1 5 I t declined to dep a r t further, however, finding that the defendants would not have been willing to risk their lives and take th e r i s k o f an armed robbery for few e r t h a n 5 kilog rams. Given this finding

, even if the district court ha d concluded that the defendants established sentencing e n trapment, the applicable base offense level still w ould have b e en 32, and the court would have had no discretion to sentence d efen d ants below the 10-y e ar mandatory minimum. See 2 1 U.S.C. §§ 841, 846.

15 T h e co u rt ex p lain ed : “ T h e G o v ern m en t req u ested at t h e last h earin g th at th e Co u rt g iv e a d o w n w ard d ep artu re o f t

w o lev els th at w o u ld b e

c o n s isten t w i th th e f

iv e to 1 5 k ilo g ram ran g e. [Co u n sel f or t h e g o v ern m en t] ex p lain ed th at th e G o v ern m en t w an t ed to m ak e it clear it w as

n ev er tr y i n g t o artif

icially in f late th e ran g e. A n d I in d icated th en , an d I

w a n t t o restate it n o w , th at I ap p reciate th e Go v ern m en t’ s sen sitiv ity to th is su b j ect an d ag ree th at a d ep artu r e i s w arran ted u n d er Sectio n 5 K2 .0 (a)(2 ).”U N I T E D S T A T E S V

. B L

A C K 36

I n sum, the district court p roperly rejected Bl a ck, Timmons and Mahon’s sentencing ent r apment arg uments. Any error would not have affected their sentences.

CONCLUSION

The district court properly d enied the defendants’ motion
to dismiss the indictment for outrag eous g overnment conduct and did not abuse its discretion in rejecting the defendants’ sentencing entrapment arg uments

. W e therefore affirm the defendants’ convictions and sentences.

AF F IRMED.

NOONAN, Circuit J udg e, dissenting :

“L ead us not into temptation” is part of a pray er familiar
to many

. B ut few, I believe, w ould think of this p ray e r a s

a d dressed to the g overnment of the United States or would think it n e ce ssary to address the g overnment with such a

re q u e s t

. The present case creates a precedent and sets a framewor k in w hich such a pray er addressed to the
go v ernment becomes c omprehensible and probable. Tod a y

our court g ives our approval to the g ov e r nment tempting
persons in the population at larg e currently eng ag ed in innocent activity and leading them into the commission of a serious crime, which the g overnment will then prosecute.

The g over n ment of the United States paid a confidential informant (CI ) $100 a day to recruit random persons willing
to r ob a cocaine stash house. B roug ht from Miami to Phoenix by Ag ent Richard Z ay as of the B ureau of Alcohol, Tobacco,U N I T E D S T A T E S V

. B L

A C K 37

F irearms, and E x plosives (ATF ), the CI testified that h e went to b ars in “a bad part of town” and that he was not instructed
to look f or particular individuals who were already involved in an ong oing criminal operation, but simply to recruit any o ne who showed an interest in his conversation.

The CI described his modus operandi in these words:

Q. All rig ht. A nd in y our efforts to recr uit these robbers, what instructions, w hat specific instructions were y ou g iven b y Ag ent Z ay as?

A. W h at instructions? J ust to g o out and, y ou k n o w , say – just try ing to see what I ca n meet back – y ou know, meet p e o ple. M e e t people, see if they know bad g uy s , y ou know.

Q. Any one off the street. I s that basically it?

A. Pretty much. N o, n o t – y eah. I mean, y eah, I g o to the bars.

Q. Rig ht. Now, how do y ou det e r m i ne if a person is a bad p erson wi thout knowing them or without observing them being
eng ag ed in a crime?

A. W e ll, it’s hard to determine.

. . .U N I T E D S T A T E S V

. B L

A C K 38

Q. Does [ Ag e nt Z ay a s] tell y ou [ to] look only

for pers ons who y ou know are about to commit a crime?

A. No.

Q. No. And, in fact, y ou have approached people at restaur an ts randomly and have raised potential criminal act i v ity

, have
y ou not?

A. Yes.

The CI selected a seedy bar as a fit place to troll and then trolled for potential defendants. Afte r several tries, the CI

was introduced to Simpson, w ho ex p ressed an interest. The CI broug ht Simpson to Z ay a s, who himself was undercover, posing as a former courier of a Mex ican drug ring anx ious to be reveng ed on his former associates. Z ay as told Simpson o f

a stash house where once a month there was cocaine awaiting transportation. I n a second meeting w i t h Z ay as twelve day s later, Simpson introduced B lack as a r e c r uit to the r obbery

, adding that no more men would b e needed. Z ay as sug g ested Simpson w ould need more help, and the others ag reed to o ne

more. At a third meeting with Z a y as, Simpson, and B lack, three more persons were recruited. The nex t d a y , Ti m mons appeared for the fir s t time as the d r iver. Simpson did not show up, afraid t h a t h e w as under surveillance. Z ay as told the men that he had rented a warehouse to store his portion o f the cocaine and asked them to f ollow him there. Upon reaching the warehous e , t h e men were arrested b y federal
ag ents. Simpson was arrested three months later.U N I T E D S T A T E S V

. B L

A C K 39

These facts are not disputed. They establi s h t hat Z ay a s and the CI

, acting f

or the ATF , recruited Simpson to rob the stash house a

nd that Z ay a s encourag ed Simpson to increase
t h e number of robbers; that all o f the defendants w e r e informed of the plan to r ob a stash house; that unknown to t h e m , the stash house itself d id n ot ex ist; and that Za y a s p r o posed its robbery as the purpose of the plan. F ro m t h e start when the CI contacted S i m p s on to the e nd when Z ay a s told the crew t o f

o llow him to the warehouse, the ag ents o f the g overnment wrote the crime-script and conducted th e defendants in the ex e cution of it.

Th e opinion of the majority does not hesitate to say , “Moreover, the stash house r obbery w a s entirely the ATF ’s creation, and it was Z ay as 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 cr e at e d a nd stag ed by ATF

. . . . Z ay as invented the scenario including the need for weapons and for a crew, and the amount of cocaine involved.” Id. at 15. As the majority a c k n o w ledg es, the
g overnment had no p a rticular information about the defendants that would have made them plausible targ ets o f an investig ation. There was a “risk inherent,” t h e majority
ag rees, “that th e g overnment could create a criminal enterprise that would not h ave come into being but f or the temptation of a big p ay day

, a work of fiction s p u n o u t b y g overnment ag ents to persons vulnerable to such a ploy w ho would not otherwise have thoug ht of doing such a robbery

. ” Id. at 16.

The majority opinion does not g ive full weig ht to Z ay as’s
sug g esting an increase in the numbers of the conspirators nor to Z ay as’s directing the conspirators t o the location of the i m a g inary stash house. These omissions apart, the majorit yU N I T E D S T A T E S V

. B L

A C K 40

opinion lay s out in c o nvincing detail how, from beg inning to end, the g overnment wrote the script, f ound those who would
act in it, and broug ht its dupes tog ether so that they could be arrested.

The majority opinion shift s its g round to a rg u e that precedent justifies its a

bsolution of the ATF

. T h e m ajority finds “the most analog ous case” to be United States v

. Bagnariol

, 665 F .2d 877 (9th C i r. 1 9 8 1 )

. Op. at 21. The majority o pinion relies on Ba g n ariol to show that the
g overnment may trap persons not currently eng ag ed in crime. B ut in that case in prov i n g t h a t the defendants had v iolated RI C O
, the g o vernment showed that they were part o f an

“ e n terprise” for the p urpose of “leg aliz ing and controlling certain unlawful g ambling

. . . all throug h a c t s i nvolving

ex tortion, bribery

, mail f

raud

. . . .” Bagna r iol

, 665 F .2d at 891 ( q uotation marks omitted). These criminal a cts were charg ed as acts the d efendants were cur r e n t l y eng ag ed in. The court concluded: “The g overnment adequately p r o v e d these activities.” Id

. The defendants were not c o n v i c t ed o r punished for past lawful activities.

The majority finds its concerns “mitig a ted to a larg e d e gr e e ” by the c laims of Simpson a nd B lack that they h ad
eng ag ed in similar criminal activity in the past. Op. at 23–24. W ith this arg ument, the majority opens a new g round f or the
g overnment to justif

y s e t t i ng u

p a defendant. Taking B lack and Simpson’ s boasts as true, why do the boasts make the boasters fair g ame for a g overnment plo y ? I n fact, the presentence reports on these defendants in this case show no stash h ouse activity by either of t h e m. I n the population o f this country , there is an in d e fi nite number of persons w ho dream of clever and unlawful schemes to make money

. Does their d reamy a morality cast them a l l a s fit candidates for aU N I T E D S T A T E S V

. B L

A C K 41

sting b y their g overnment? Depraved as a person’s imag ination and hopes may be, what is imag ined a n d hoped

are n ot the subjects o f criminal justice. The majority ’s rationale for permitting

the g overnment to tempt the g eneral population to crime imposes n o limits upon the imag inat i o n of ag ents of the g overnment.

B e sides Bagnariol

, the g overnment searches among i t s previous sting s to find a precedent for what the g overnment did h ere. The search h as not been productive. The
g overnment cites cases where the d efendants ass e r t e d a d e f e n se of outrag eous g overnment conduct and failed to establish the defense. I n United States v. Stenberg

, 803 F .2d 422 ( 9th Cir. 1986), the defendants were already e ng ag ed in the ty pe of illeg al transactions the g overnment soug ht to shut down, id

. at 430. I n United States v. B onanno , 852 F

. 2d 434 (9th Cir. 1 988), the defendants w ere already invol v e d i n an illeg al purchase order scheme, id

. at 438. I n United States v

. Pemberton

, 853 F .2d 7 3 0 (9th Cir. 1988), the defendant was

a long -time drug dealer a lready involved in money laundering

, id

. a t 732. I n United Stat e s v. Garza-Juarez
, 992 F .2d 896 (9th Cir. 1 993), the defendant s w e re already known to take part in a pre-ex isting illeg al firearm trafficking scheme, id

. at 900. I n United States v

. Gurolla

, 333 F

. 3 d 944 (9th Cir. 2003), on e of the larg e st undercover operations in history

, the defendants were already part of a massive money laundering scheme in which Mex ican banks laundered money to various drug cartels, id

. at 948. I n United States v

. W illiams

, 547 F .3d 1 1 87 (9th Ci r

. 2 0 08), the defendant was already wanted for a prior bank robbery ; had eng a g ed in several drug deals with a g o vernment informant; a n d h ad planned his second bank r o b b e ry in detail and on his o wn accord, g oing so fa r a s t o identify a targ et bank and recruit

someone on t he inside of the bank to help. I t was o nly a fterU N I T E D S T A T E S V

. B L

A C K 42

the defen d ant enlisted a g overnment informant to b e his
g etaway driver that the ATF pitched the fictitious drug stash house as a safer alternative to robbing a bank. I d

. at 1192. I n

e a ch o f these cases, the g overnment targ eted an ex is t i n g schem e o r suspected an individual o f wrong doing before initiating a sting operation.

An Alternative Approach

T h e majority opinion scarcely offers an ex p lanation fo r why it has declined to u se the Bonanno test. The test is g ood law. Under the Bonanno test, the government’s conduct is not outrag e ous when:

(1) the defendant w as already involved in a continuing series o f similar c r imes, or the

c h a rg ed criminal enterprise w as already i n prog r ess at the time the g over n ment ag ent became involved; (2) the ag ent’s participation

was not necessary to enable the defendants to continue the c r iminal activity ; (3) the ag ent

u s e d artifice a

nd stratag em to ferret o u t

c ri m i n al activity ; (4) the a g ent infiltrated a crim i n a l org aniz ation; and (5) the ag ent approached persons already contemplating o r eng ag ed in criminal activity

.

W illiams

, 547 F .3d at 1199–1200 ( q u o t ing Bonanno
, 8 5 2 F .2d
at 4 37–48 and evaluating whether the g overnment’s conduct is o utrag eous by methodically c onsidering e ach of the five factors). The orig in of the test lay in United States v. Bogart
, 783 F. 2 d 1428 (9th Cir.), vacated in p art on reh’g sub nom. United States v. W

ingender

, 8 90 F .2d 802 (9th Cir. 198 6). S y s t e m atically evaluat i n g a n u m b e r o f o u t r a ge o u sU N I T E D S T A T E S V

. B L

A C K 43

go v e r n m e n t c o n d u c t c a s e s , Bo g a r t concluded t h at “constitutionally unacceptable” are c ases where the “crime is fabricated entirely by the police t o s ecure the defendant’s conviction r ather than to p r o tect the public from the defendant’s continuing

criminal behavior.” Id . at 1438.

The majority opinion concedes that the g overnment here fails th e f irst, fourth, and fifth factors o f the Bonanno test. Op. at 18–25. I t is undisputed that th e d e f e n dants were not involved in a c ontinuing series of similar crimes or a criminal enterprise already in prog ress; that the ag ents did not infiltrate

a criminal org aniz at i o n; a nd the ag ents did not approach
p ersons already contemplating or eng ag ed in crimina l activity

.

The c ases that decline to use the Bonanno test articulate

a g uiding principle. I n United States v. Gurolla

, 333 F

. 3d 944 (9th Cir. 2003), for instance, a case that the majority notes a s declining to use the Bonanno test, see Op. at 18 n.7, this court stated that our lodestar in determinin g w h ether the
g overnment cond u c t is outrag e ous is whether “the
g overnment did not initiate the cri m i n al activity

, but rather
soug h t to crack an ong o ing operation,” G urolla

, 333 F

. 3d at 950. Plainly

, no ong oing operation ex isted here. Plainly the
g overnment here did initiate the criminal activity

.

The major ity declares that its “concerns that [ the
g overnment] soug ht to manufacture a c rime that would not have o therwise o c c urred” are “mitig a ted to a larg e deg ree.” Op. at 23–24. This mitig ation i s due to Simpson and B lack telling Z ay as that they had d one similar stash house robberies. These r epeated assurances “quickly supplied,” the majority
say s, “reasons to s u s p e c t they were likely to g et involved in stash house robberies.” Id. at 24.U N I T E D S T A T E S V

. B L

A C K 44

Nothing in the presentence reports on B lack and Simpson

s h o ws t h at they had ever eng ag ed in a stash h ouse robbery

. At least as far as the g o vernment knew, they were simply b oasting

. F or the g o vernment ag ents to believe the boas t s may h ave been reasonable. B ut the boasts did not show them
to be currently eng ag ed i n this kind o f crime. As f ar as the government a g ents knew or believed, B lack and Simpson

were n either committing a cri m e nor eng ag ed in planning a crime.

According to the presentence reports on the def e n d ants submitted by the g o v e r n m e n t , B lack as an adult of 18 h ad been convicted of a

uto theft and a t ag e 23 had been sentenced
to 90 day s in jail for bank robbery

. His crim i n a l h istory points totaled 7

. Mahon as an a d u lt of 21 had been convicted of criminal possession of a w e a p o n and sentenced to six months in jail and h ad a t ag e 24 been sentenced to six months for possessing marijuana

, w i t h c r iminal history points totaling 5. Alex ander as an adult was fined three times for driving on

a suspended license. His criminal points totaled z e ro. Timmons at ag e 15 was c onvicted as a n adult for r obbery in taking another person’s automobile by force, sentenced to jail for 5 months, and thereafter r eturned to jail on seve ral occasions for violation of probation

. H e also has several domestic violence convictio n s , a n d h e twice h as been convicted of the felony of possessing marijuana. His criminal history points totaled 16.

No federal crimes are attributed to any o f 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 ac t i v ity

. Nothing
t he g overnment knew and nothing that the g overnment la t e rU N I T E D S T A T E S V

. B L

A C K 45

discovered about their past showed that the defendants were ready to rob a stash house.

The Amount Of Drugs W

as Invented By The ATF

More than 600 persons h ave been prosecuted for attempting to rob stash houses which w ere fictitious. See B rad Heath, ATF Uses Fake D rugs, Bi g B u cks to S

nare Suspects
, U S A Today

, J une 28, 2013, at 1A. According to ATF ’ s special operations chief, the sentence that the ATF seeks is fifteen y ears. Id

.

Ou r c o u rt has voiced concerns at least twice over the
g overnment’s “unfettered a b i l i t y ” to set the sentence b y i n flating the fictitious a mount of drug s in the fictitiou s d ru g house: United States v. Y

uman-Hernandez

, 712 F .3d 471, 474 (9th Cir. 2013); United States v. B r i g g s , 623 F .3d 724, 729–30 (9th Cir. 2010). See also Unite d S tates v. Caban

, 173 F .3d 89, 93 ( 2d Cir. 1999). I n n one of these cases have the courts disapproved the g overnment’s power.

F ictitious stash house sting s “are a disreputable tactic,” J udg e Posner has w ritten, because “[ l] aw enf o r cement u ses them to increase the amount o f drug s that can be a ttributed to the persons st u ng , so as to jack up their sentences.” United States v. Kind l e , 6 9 8 F .3d 401, 4 14 (7th Cir. 2012) (Posner, J
., dissenting ), cert. denied , 133 S. Ct. 1743 (2013), reheard

en banc sub nom. United States v. M ayfield (7th Cir. Apr. 16, 2013).

J udg e Posner observes:

And now consider the role of such sting s in the “war on drug s.” Are they likely to reduceU N I T E D S T A T E S V

. B L

A C K 46

the sale and use of illeg al drug s? No; they a re likely to have the opposite effect. Stash house robbers do not increase the amount of drug s in circulation, since they steal their drug s instead of making o r importing them. The effect of a fictitious stash house s t ing

, when the person stung is, unlike [ Defenda n t ]
, a real stash hous e robber, is therefore to make stash houses more secure by reducing the likelihood of their being robbed. A sting both eliminates

one potential stash hou s e robber

. . . a nd deters other c riminals from joining s t ash house robberies, since they may turn out to be

s t i n g s. The g reater security that fictitiou s stash hou s e s ting s c onfer on real stash houses—sec u r i ty obtained at no cost to the operators of stash houses—reduces their cost of self-protection, which is a principal cost o f
t h e illeg al-drug business. The lower a business’s costs, the lower the prices charg ed
consumers, and so the g reater the demand for illeg al dr u gs and the more sales a nd consumption of them. The operators o f stash houses would p ay law en f o r cement to sting potential stash house robbers.

Id. at 416.

Not only a

re J udg e Posner’s observations well taken, it is

a denial of due p rocess for sentences to be at the a rb i t r a r y discretion of the ATF

. The age n c y creating the fictitious stash house can place any amount of imag inary drug s within it. The amount must, no doubt, b e plausible; this limit aside,
t h e A T F m ay make the object of the robbery as larg e as i tU N I T E D S T A T E S V

. B L

A C K 47

chooses, thereby ef

f ectively choosing the criminal penalties the defendants w ill incur. The ATF has free rein to a mplify these penalties and influence the number of defendants by

, a s in our case, inventing a r m ed g uardians of the imag inary drug s. I n other cases, no t h i n g stops the g overnment from f i l i n g a d d i t i o n al c h a r ge s a n d obtaining sent en c i n g enhancements where the defendants, at the g overnment’s insistence, are found carry ing ex plosives, body armor, o r machine g uns.

Conclusion

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

on the a ctual c irculation of illeg al d rug s but may make actual stash houses more secure; the i m ag inary stash h ouse also
g ives the g overnment essentially unchecked p ower to increase the number o f persons drawn i n as robbers b y supply ing the number of imag inary g u ards for the drug s a

nd by supply ing the a mount o f imag inary drug s that a re supposed to b e present. The power ex e r c ised by the
g overnment is not only to orchestrate the crime but to control and ex pand those g uilty of it. I do n ot see how this power can be rationally ex ercised. No standard e x ists to determine the limits of the g overnment’s discretion.

The four defendants were a p ortion of the population o f Phoenix u n k n o w n by the g overnment to harbor any specific crim i n al p lans. Never in their past had they been convicted of a crime o f such proportions or a federal crime of any kind. They were inveig led by the ATF to ag ree to commit a crime which in fact was imp o s s ible to commit b ecause the stash house they ag reed to rob did n ot ex ist. B esides providing this imag inary targ et for their crime, the A TF broug ht the CI from Miami to recruit them, fed them Z ay a s’s cover story a s to hisU N I T E D S T A T E S V

. B L

A C K 48

own motivation, told t h e m of the targ et to be robbed with detail as to i t s c ontents a n d g uards, coached them a s to the number of persons needed for the job, a nd d irected them t o where they would be a

r rested. The ATF wrote the script, cast t h e defendants as the actors, and directed the action to it s denouement.

The United States h as e nor m o u s r esources that could be used to tempt and trap crimina l s

. I f these resources a re deploy ed to bring an ong oing crimi n a l en terprise to justice, the country is well served. I f these resources are deploy ed to fire the imag inations of dreamers o f easy wealth and turn them to conspiring to c ommit a crime, our g overnment has been the oppressor of its people.

Massively involved in the man u f a ct u re of the crime, the ATF ’ s actions constitute conduct disg raceful to th e federal
g overnment. I t is not a function of our g overnment to entice into criminal activity unsuspecting people eng ag ed in lawful

c o n d uct; not a function to invent a f iction in order to b a i t a trap for the innocent; not a function to collect conspirators to carry o ut a script w ritten by t h e g o v e rnment. As the

ex e c utive branch of our g overnment has failed to d isa v o w this conduct, it becomes the d u t y o f the judicial branch to refuse to accept these actions as l egi timate elements of a criminal case in a federal court.