Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 1 of 24 Page ID #:962 O 1 2 3 4 5 6 7 JS-3 8 United States District Court Central District of California 9 10 11 12 UNITED STATES OF AMERICA, Plaintiff, 13 14 Case No. 2:13-cr-00126-ODW-3 v. ORDER GRANTING MOTION TO 15 CEDRICK MARQUET HUDSON; DISMISS INDICTMENT FOR 16 JOSEPH CORNELL WHITFIELD; OUTRAGEOUS GOVERNMENT 17 ANTUAN DUANE DUNLAP, CONDUCT [92] 18 Defendants. 19 I. INTRODUCTION 20 “‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black, 21 733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has 22 gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its 23 fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool 24 when employed to target or prevent demonstrated criminal enterprises, reverse stings 25 offend the United States Constitution when used solely to obtain convictions. 26 The Court is mindful that fighting crime is undoubtedly an arduous task that the 27 Executive Branch must endure. 28 No. 51, But as James Madison wrote in The Federalist Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 2 of 24 Page ID #:963 1 If angels were to govern men, neither external nor internal controls on 2 government would be necessary. In framing a government which is to be 3 administered by men over men, the great difficulty lies in this: you must 4 first enable the government to control the governed; and in the next place 5 oblige it to control itself. 6 The only way to effectively control the Government in this case and effectuate the due 7 process that the Constitution demands is to dismiss this indictment which the ATF 8 obtained against Defendant Antuan Duane Dunlap through outrageous government 9 conduct. For the reasons discussed below, the Court accordingly GRANTS Dunlap’s 10 Motion to Dismiss the Indictment. (ECF No. 92.) Dunlap shall be RELEASED from 11 custody FORTHWITH barring any other holds. 12 II. FACTUAL BACKGROUND 13 To catch individuals suspected of engaging in home-invasion robberies, Bureau 14 of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Special Agent Dan Thompson 15 masquerades as a “cocaine courier who wishes to steal the cocaine he is expected to 16 deliver” from a location in the Los Angeles area. 17 Thompson, consistent with previous ATF reverse-sting operations, paints a picture of 18 an all-too-easy stash-house robbery. He tells unwitting individuals a tale of bountiful 19 harvests of 20 to 25 kilograms of “pure” cocaine being guarded by just a few 20 individuals. The only problem: it’s all a lie. (Aff. ¶ 4.) Special Agent 21 Special Agent Thompson’s interaction with Defendants began around 22 November 2012 when Los Angeles Police Department Task Force Officer Erik Shear 23 informed ATF Special Agent Jason Moore that Defendant Cedrick Marquet Hudson 24 had asked a confidential informant (“CI”) whether he knew of any good “come ups.” 25 (Id. ¶ 5.) At the hearing on this Motion, the Court questioned the Government 26 whether the term “come ups” refers only to robbery opportunities. The Government 27 conclusorily indicated that Moore and Thompson knew that Hudson meant robbery 28 opportunities based on the context—whatever it was. It still remains a mystery how 2 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 3 of 24 Page ID #:964 1 “come ups” only referred to robberies here—let alone a stash-house robbery. Further, 2 Moore did not provide any background regarding the CI’s interaction with Hudson; 3 rather, Moore’s recount starts with the appearance that Hudson approached the CI out 4 of the blue. 5 After the CI contacted the ATF, the agents told the CI to tell Hudson that 6 Special Agent Thompson wanted to meet with him. (Id. ¶¶ 6–7.) On December 20, 7 2012, the undercover agent met with Hudson and Defendant Joseph Cornell Whitfield 8 at a restaurant in Gardena, California. (Id. ¶ 8.) The undercover agent explained the 9 proposed robbery to Hudson and Whitfield and told them to let him know if they were 10 not interested. (Id. ¶ 8(c).) The undercover agent described the scheme as “a once in 11 a lifetime type thing. . . . [L]ike this is like the one. You know, the come up don’t 12 come around that often . . . .” (Suppl. Opp’n Ex. 6, at 5, 13.) Special Agent 13 Thompson said that he picks up two kilograms of cocaine from the nonexistent stash 14 house, but he always sees 20 to 25 kilograms there. (Aff. ¶ 8(d).) 15 The undercover agent also asked if Hudson and Whitfield if they had “a 16 crew . . . a couple other homies” that could participate in the nonexistent robbery. 17 (Id.; Suppl. Opp’n Ex. 6, at 20.) They said that they did. (Aff. ¶ 8(d).) 18 Special Agent Thompson further explained that there were usually two 19 individuals guarding the fake stash house—one of which always carried a firearm. 20 (Id. ¶ 8(e).) Special Agent Thompson said that he usually picked up cocaine once a 21 month and that he would find out two days before the pick-up where the imaginary 22 stash house was located. (Id.) 23 The undercover agent proposed that he would be inside the nonexistent stash 24 house during the robbery. (Id. ¶ 8(i).) He said that Hudson and Whitfield should 25 empty his pockets and tie him up to make it look like the agent was also a victim. 26 (Id.) 27 Special Agent Thompson asked if Hudson and Whitfield’s associates “could 28 handle it if something happened during the robbery (referring to someone getting 3 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 4 of 24 Page ID #:965 1 shot).” (Id. ¶ 8(m).) They said that they could. (Id.) Thompson then stated that he 2 had “a home girl like got a hook up at a rental car company” and volunteered to 3 procure a getaway car and safe house. (Id. ¶ 8(n); Suppl. Opp’n Ex. 6, at 16.) 4 The undercover agent alluringly described the fictitious cocaine as “pure” and 5 told Hudson and Whitfield that they would need to repackage it before distributing it. 6 (Id. ¶ 8(g), (t).) 7 On January 10, 2013, the undercover agent, Hudson, Whitfield, and the CI met 8 for a second time outside a coffee shop in Carson, California. (Id. ¶ 11.) Special 9 Agent Thompson stated that the cocaine shipment would arrive later in the month. 10 (Id. ¶ 11(f).) He also asked about the third member of the group, and Hudson and 11 Whitfield said he—“Rowdy” or “Baby Rowdy”—was ready. (Id. ¶ 11(h).) Later in 12 the meeting, Special Agent Thompson again referenced the third member of the 13 group, saying that he wanted to meet him. (Id. ¶ 11(j).) 14 The undercover agent then told Hudson and Whitfield that the fictional drug 15 traffickers would be guarding 20 to 25 kilograms of pure cocaine. (Id. ¶ 11(l).) The 16 group discussed the logistics of the robbery, including how Special Agent Thompson 17 should leave the stash-house door unlocked. Special Agent Thompson inquired if 18 Hudson and Whitfield “could get him anything (referring to a firearm)”; Whitfield 19 said that he could. (Id. ¶ 11(u).) 20 On January 21, 2013, the undercover agent informed Hudson via telephone that 21 the drug traffickers were in Mexico and that the cocaine shipment would arrive in 22 early February. (Id. ¶ 12(a).) Hudson said that they were ready. (Id. ¶ 12(b).) 23 On January 30, 2013, Special Agent Thompson called Hudson to arrange a 24 meeting with the third member of Hudson and Whitfield’s crew at an undercover 25 warehouse in Los Angeles, California. (Id. ¶ 14(a).) Hudson and Whitfield arrived 26 and introduced Dunlap—a completely different person from the previously referenced 27 “Rowdy” or “Baby Rowdy.” (Id. ¶ 11(f).) The group then further discussed the 28 details of the fake stash-house robbery. 4 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 5 of 24 Page ID #:966 1 The undercover agent again asked Whitfield if he could get him a little “strap,” 2 meaning a gun, and the agent said that he could pay Whitfield for it. (Id. ¶ 14(o).) 3 Whitfield obliged. (Id.) 4 Hudson bragged to Thompson that Dunlap is a “jack-boy” and “robs banks and 5 all that shit.” (Id. ¶ 14(l), (n).) Dunlap also stated that he had robbed a Western 6 Union by threatening an employee with a Taser and had robbed a Nix check-cashing 7 establishment. (Id. ¶ 14(ss), (tt).) But at no point did Dunlap or the other Defendants 8 indicate that they had previously engaged in home invasions or drug stash-house 9 robberies. 10 On February 5, 2013, Special Agent Thompson again met with Hudson, 11 Whitfield, Dunlap, and the CI at an undercover warehouse that was to serve as the 12 safe house—a safe house provided by the Government. (Id. ¶ 15.) The undercover 13 agent had rented a minivan as a getaway vehicle. (Id. ¶ 15(c).) Hudson placed a rifle 14 bag from his vehicle into the rental van. (Id. ¶ 15(f)–(g).) The bag contained a 15 shotgun and revolver. (Id. ¶ 15(h).) 16 While the crew waited in a breakroom, Special Agent Thompson told them that 17 they were “about to get these birds (meaning kilograms of cocaine)” and described the 18 cocaine as “‘pure[,] pure ass coca . . . this ain’t like no bullshit cocaine, [sic] this is 19 like cocaina.’” (Id. ¶ 15(o).) The agent then left the room, and Defendants were 20 arrested. (Id. ¶ 15(p).) 21 On February 25, 2013, the Grand Jury indicted Defendants for alleged 22 violations of 21 U.S.C. § 846 (conspiracy to possess cocaine with intent to distribute), 23 18 U.S.C. § 1951 (conspiracy to interfere with commerce by robbery), and 18 U.S.C. 24 § 924(c)(1)(A) (using or possessing a firearm in furtherance of a drug-trafficking 25 crime). Hudson was also charged with violating 18 U.S.C. § 922(g)(1) (felon in 26 possession of a firearm). 27 On January 28, 2014, Dunlap moved to dismiss the indictment due to 28 outrageous government conduct. (ECF No. 92.) The Government timely opposed. 5 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 6 of 24 Page ID #:967 1 (ECF No. 96.) On March 3, 2014, the Court held a hearing on the matter and took the 2 Motion under submission. Both parties have since submitted supplemental briefing, 3 which the Court has extensively reviewed. (ECF Nos. 104, 108, 109.) III. 4 LEGAL STANDARD 5 The Fifth Amendment to the Constitution commands that “[n]o person shall . . . 6 be deprived of life, liberty, or property without due process of law.” U.S. Const. 7 amend. V. The Due Process Clause stands as a bar to the Government invoking 8 judicial process to obtain a conviction when its conduct is “outrageous.” United 9 States v. Russell, 411 U.S. 423, 431–32 (1973) (Rehnquist, J.). The outrageous- 10 government-conduct doctrine permits a court to dismiss an indictment when the 11 Government engages in conduct “so grossly shocking and so outrageous as to violate 12 the universal sense of justice.”    United States v. Smith, 924 F.2d 889, 897 (9th Cir. 13 1991). Judicial scrutiny focuses solely on the government’s actions—not the alleged 14 actions of the criminal defendant.    United States v. Restrepo, 930 F.2d 705, 712 (9th 15 Cir. 1991). The outrageous-government-conduct doctrine thus differs in that respect 16 from an entrapment defense. Id. 17 There is no brightline test for determining whether to apply this doctrine. 18 United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013). In United States v. 19 Bonanno, 852 F.2d 434 (9th Cir. 1988), the Ninth Circuit previously developed a 20 multifactor inquiry to determine whether to dismiss an indictment for outrageous 21 government conduct. The court held that the government’s conduct is permissible 22 when, 23 (1) the defendant was already involved in a continuing series of similar 24 crimes, or the charged criminal enterprise was already in progress at the 25 time the government agent became involved; (2) the agent’s participation 26 was not necessary to enable the defendants to continue the criminal 27 activity; (3) the agent used artifice and stratagem to ferret out criminal 28 activity; (4) the agent infiltrated a criminal organization; and (5) the 6 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 7 of 24 Page ID #:968 1 agent approached persons already contemplating or engaged in criminal 2 activity. 3 Id. at 437–38. But in the most recent case on point, the Ninth Circuit disavowed rigid 4 5 application of the Bonanno inquiry and subsumed it within a new multifactor rubric.   6 Black, 733 F.3d 294, 304 n.7 (9th Cir. 2013) (rejecting the Bonanno factors as a 7 “test”). The Ninth Circuit expounded a new, totality-of-the-circumstances standard 8 that a court must consider in assessing the outrageousness of the Government’s 9 conduct: 10 (1) known criminal characteristics of the defendants; (2) individualized 11 suspicion of the defendants; (3) the government’s role in creating the 12 crime of conviction; (4) the government’s encouragement of the 13 defendants to commit the offense conduct; (5) the nature of the 14 government’s participation in the offense conduct; and (6) the nature of 15 the crime being pursued and necessity for the actions taken in light of the 16 nature of the criminal enterprise at issue. 17 Id. at 303. The burden, at least in reverse-sting cases like this one, is on the 18 Government to establish that its conduct does not surpass due-process limitations. Id. IV. 19 DISCUSSION 20 Dunlap moves to dismiss the indictment due to outrageous government conduct, 21 namely, the ATF’s entirely fake stash-house scheme. In response, the Government 22 contends that Dunlap manifested his propensity to commit robberies and admitted to 23 engaging in “similar conduct in the past”—therefore justifying the reverse sting that 24 the ATF employed. But the Court finds that the Government’s extensive involvement 25 in dreaming up this fanciful scheme—including the arbitrary amount of drugs and 26 illusory need for weapons and extra associates—transcends the bounds of due process 27 and renders the Government’s actions outrageous. 28 /// 7 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 8 of 24 Page ID #:969 1 A. Standing 2 Citing to United States v. Emmert, 829 F.2d 805 (9th Cir. 1987), the 3 Government contends that Dunlap lacks standing to challenge the indictment based on 4 outrageous government conduct because he was not the “actual target” of the 5 Government’s operation. The Government asserts that any issues Dunlap has with 6 how he entered into the alleged conspiracy “lie solely with Hudson and Whitfield.” 7 (Suppl. Opp’n 4.) 8 Emmert is entirely distinguishable from this case. In Emmert, the Ninth Circuit 9 affirmed the district court’s denial of defendant Arriaga’s motion to dismiss the 10 indictment based on outrageous government conduct, holding that “Arriaga lacks 11 standing to object to the government’s activities in this case since he was never an 12 actual target of the investigation.” Id. at 811. The court noted that Arriaga had not 13 previously been involved in the negotiations between the undercover agent and 14 Emmert. Id. at 807. Rather, it appears that Emmert simply brought Arriaga into the 15 picture of his own volition. 16 In contrast, the undercover agent in this case repeatedly asked Hudson and 17 Whitfield whether they had “a couple other associates” who could partake in the fake 18 stash-house robbery. (Aff. ¶ 8(d).) As the ruse wore on, the undercover agent 19 continued to ask about the third member of Hudson and Whitfield’s crew, asking 20 several times to meet with him. When Hudson and Whitfield finally introduced 21 Dunlap to the undercover agent, Dunlap was as much the “actual target” of the 22 Government’s dragnet operation as Hudson and Whitfield. Unlike the happenstance 23 that led Arriaga to the Government in Emmert, it was the undercover agent’s continual 24 badgering to include more members in Hudson and Whitfield’s crew that resulted in 25 Dunlap’s five-day involvement in this fictitious plan. 26 It is also curious how the Government argues that “[a]ny issues that [Dunlap] 27 has regarding how he entered into the conspiracy lie solely with Hudson and 28 Whitfield.” (Suppl. Opp’n 4.) It is not clear how the Government believes Hudson 8 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 9 of 24 Page ID #:970 1 and Whitfield would be able to remedy the outrageous government conduct of which 2 Dunlap was a victim. They do not have the power to dismiss the indictment. Neither 3 is it likely that Dunlap has some sort of civil remedy against Hudson and Whitfield. 4 Instead, Dunlap faces real prison time as a result of the Government’s action. It 5 would be a strange result to find that Dunlap could not challenge the actions of the 6 sovereign that put him there. The Court accordingly finds that Dunlap has standing to challenge the 7 8 Government’s conduct through this Motion to Dismiss the Indictment. 9 B. 10 11 Outrageous government conduct All of the factors the Ninth Circuit expounded in Black weigh in favor of dismissing the indictment for outrageous government conduct. 12 1. Defendants’ known criminal characteristics 13 In assessing the outrageousness of the Government’s conduct, the Ninth Circuit 14 has stated that a court should consider “whether a defendant had a criminal 15 background or propensity the government knew about when it initiated its sting 16 operation.” Black, 733 F.3d at 304 (emphasis added). 17 Here, there is no indication that the ATF, Thompson, the LAPD, or the CI had 18 any knowledge of Hudson, Whitfield, or—in particular—Dunlap’s alleged “criminal 19 background or propensity” prior to Thompson inventing the stash-house scheme. In 20 fact, Dunlap did not even come into the picture until January 30, 2013—just five days 21 before his arrest and long after the Government had begun laying out the stash-house 22 ruse. Thompson asked Hudson and Whitfield repeatedly about the third member of 23 their crew, and they initially told him they were bringing a completely different 24 person. Absent a crystal ball, it is therefore impossible for Thompson—or anyone 25 else at the ATF—to have known the slightest details about Dunlap in advance of the 26 January 30, 2013 meeting. 27 In Black, the Ninth Circuit confronted a similar situation where the special 28 agent learned of the Defendants’ alleged criminal backgrounds only after the agent 9 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 10 of 24 Page ID #:971 1 invented the stash-house scheme. After iterating the known-criminal-conduct factor, 2 the court stated that the later-supplied knowledge “mitigated to a large degree” the 3 court’s concerns. Black, 733 F.3d at 307. The court reasoned that the defendants’ 4 “repeated representations that they had engaged in related criminal activity in the past 5 quickly supplied reasons to suspect they were likely to get involved in stash house 6 robberies.” Id. 7 But this Court’s concerns are not so easily “mitigated” to any degree by 8 Dunlap’s braggadocio at the January 30, 2013 meeting. It makes little sense to justify 9 the Government’s capricious, stash-house scheme at its inception by what Thompson 10 later learned about Dunlap. In a situation where an apparently experienced cocaine 11 courier is boasting to some small-time crooks about the chance to hit the mother lode, 12 it is only human nature that the individual is going to try to impress the courier with 13 wild tales of past criminal conduct. In this case, there is no evidence that Dunlap 14 actually robbed a Western Union or Nix. But even if he did, Thompson did not learn 15 about Dunlap’s alleged past crimes until after Dunlap joined the doomed-to-fail crew. 16 The Government cannot bootstrap this post hoc knowledge to justify the scheme from 17 the beginning. 18 Those commercial robberies also bear little upon the fictitious stash-house 19 scheme or the home invasions the ATF sought to eliminate. In fact, when Dunlap was 20 bragging about this past exploits, he disavowed any connection to drugs: 21 [Dunlap]: Keep my ass clean. I never touch dope. I’m just saying 22 though. 23 [Whitfield]: He’s a jack boy, he don’t know nothing about no drugs. 24 (Opp’n Ex. 2 at 55.) So contrary to the Government’s contention, Dunlap’s 25 “admissions” only served to demonstrate that he had no propensity to commit drug 26 crimes—the entire subject of the reverse sting. 27 Allowing after-the-fact knowledge to mitigate the Court’s concerns in a 28 situation like this also creates a perverse incentive for the Government. It encourages 10 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 11 of 24 Page ID #:972 1 the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden 2 areas—all without an iota of suspicion that any particular person has committed 3 similar conduct in the past. And if the Government happens to get it right and catch 4 someone who previously engaged in crime, the courts will place their imprimatur on 5 the whole fishing expedition. 6 The Court declines the invitation to endorse this nab-first-ask-questions-later 7 approach. While this situation is a win-win for the Government, it is really only lose- 8 lose for the unwitting individuals unlucky enough to fall into the Government’s net. If 9 they have never committed criminal activity in the past but agree to participate in the 10 fake robbery, they go to prison—unless they can surmount the Everest-like hurdle to 11 establish an entrapment defense. And if they have criminal backgrounds, entrapment 12 is likely off the table. See United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 13 1995) (“If the defendant is found to be predisposed to commit a crime, an entrapment 14 defense is unavailable regardless of the inducement.”). 15 If the Government were to actually have knowledge that a particular person had 16 engaged in similar conduct in the past—or at least had suspicion based on identifiable 17 facts—then the Government should and does have free rein, consistent with 18 constitutional restrictions, to go after those individuals. That’s all that the first Black 19 factor appears to ask for. See 733 F.3d at 304. But that advance knowledge is wholly 20 lacking here, thus weighing in favor of an outrageous-government-conduct finding. 21 2. Individual suspicion of the defendants 22 The Ninth Circuit does not require that the Government have “individualized 23 suspicion of a defendant’s wrongdoing before conducting an undercover 24 investigation.” 25 identifiable group before launching a reverse sting, that is a relevant consideration. Id. 26 Dunlap points out that there is no evidence that he or the other Defendants were 27 previously involved—or even suspected of being involved—in stash-house robberies. 28 /// Id. But if the Government has reason to suspect a person or 11 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 12 of 24 Page ID #:973 1 But the Government argues that Dunlap’s admission that he had participated in other 2 alleged robberies manifested a propensity to commit more robberies. 3 When the Eleventh Circuit considered a similar fictitious, stash-house-robbery 4 scenario, the court confronted a situation where “ATF agents contacted individuals 5 suspected of being involved in home invasions.”    United States v. Sanchez, 138 F.3d 6 1410, 1413-14 (11th Cir. 1998). The court found that factor persuasive in finding no 7 outrageous government conduct. 8 Here, too, the ATF sought to “investigate individuals suspected of being 9 involved in home invasion robberies.” (Aff. ¶ 4.) But not once did the ATF indicate 10 that it suspected any Defendant of being associated with home invasions—even after 11 Dunlap and the others started boasting about their past criminal conduct. At best, the 12 ATF operated off a hunch that Dunlap and the others were up to no good. But 13 something more is required before the Government can ensnare individuals in an all- 14 too-tempting, made-up robbery and take 15-plus years away from their lives. 15 While the Government contends that this case lacks the troubling factor of the 16 informant trolling for targets in a bad part of town as occurred in Black, there is little 17 evidence about what the informant actually did in this case. Moore only states in his 18 affidavit that Hudson approached the CI. But Moore does not elaborate on how 19 Hudson and the CI came into contact with each other, such as whether the CI initiated 20 any contact or suggested that he might be a source for good “come ups.” Dunlap 21 proffers that there was a disagreement between Hudson and the CI, which led the CI 22 to furnish this opportunity as a peace offering. In any event, the Government’s lack of 23 individualized suspicion is therefore not allayed by this missing page in the 24 Government’s story. 25 3. Government’s role in creating the crime of conviction 26 The United States Supreme Court has drawn a line between infiltrating an 27 ongoing criminal enterprise on one hand and manufacturing crime on the other. The 28 Court stated that the “function of law enforcement is the prevention of crime and the 12 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 13 of 24 Page ID #:974 1 apprehension of criminals. Manifestly, that function does not include the 2 manufacturing of crime.”  Sherman v. United States, 356 U.S. 369, 372 (1958). While 3 the Government may not create crime, the Court has accepted that “infiltration is a 4 recognized and permissible means of investigation.”  Russell, 411 U.S. at 432; see also 5 Black, 733 F.3d at 305 (“Also relevant is whether the government approached the 6 defendant initially or the defendant approached a government agent, and whether the 7 government proposed the criminal enterprise or merely attached itself to one that was 8 already established and ongoing.”). 9 But for the undercover agent’s imagination in this case there would be no 10 crime. The undercover agent invented his drug-courier persona, the stash house, the 11 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals 12 supposedly guarding the stash, the need to use weapons, and the idea of robbing the 13 stash house. He even provided the putative safe house and getaway van. Dunlap 14 brought little to the table besides his sheer presence and perhaps the hope of being 15 able to obtain some quick cash. He hardly took an “independent role in planning the 16 crime” like the defendants did in Black. 733 F.3d at 306 n.8. Rather, the most it 17 appears he did was say, “I’m straight.” (Aff. ¶ 14(cc).) 18 Despite the Supreme Court’s admonition, the ATF manufactured this entire 19 crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that 20 Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them. 21 In fact, before the CI informed Thompson that Hudson was interested in “come ups,” 22 Defendants were not even on the ATF’s radar. Total falsity concocted by the ATF 23 was precisely one of the Ninth Circuit’s concerns in Black. 24 (“Although [the defendants’ actions in participating in the plan] clearly corroborate 25 the defendants’ intent to carry out an armed robbery, defendants were responding to 26 the government’s script.”). That fiction is likewise one of this Court’s misgivings and 27 weighs in favor of dismissing the indictment. 28 /// 13 733 F.3d at 303 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 14 of 24 Page ID #:975 1 4. Government’s encouragement of the defendants to the commit the crime 2 A court must also consider the extent to which the Government encouraged the 3 defendant to commit the crime charged, “with mere encouragement being of lesser 4 concern than pressure or coercion.” Id. at 308. 5 At the hearing on the Motion, the Government argued that in United States v. 6 Shapiro, 669 F.2d 593 (9th Cir. 1982), the Ninth Circuit established that a defendant 7 must offer “some evidence or persuasion by someone who was a government agent” in 8 order for a court to give an entrapment instruction. Id. at 598 (emphasis added). The 9 Government also contends that just like the defendants in Black, once the agent set his 10 bait, Hudson and Whitfield responded without any further inducement—thereby 11 demonstrating the Government’s minimal role in the scheme. 12 The Government’s reliance on Shapiro is misplaced. In that case, the court 13 dealt with whether a district court should have given the jury an entrapment 14 instruction. But Dunlap has not reached trial yet; the jury-instruction issue is therefore 15 premature. 16 government conduct—not entrapment. And rightfully so. Entrapment is a jury issue, 17 whereas outrageous government conduct is an issue for the Court. Compare Sorrells 18 v. United States, 287 U.S. 435, 452 (1932), with United States v. Williams, 547 F.3d 19 1187, 1199 (9th Cir. 2008). Further, he moves to dismiss the indictment based on outrageous 20 While there may be no indication that the undercover agent or the CI threatened 21 or otherwise coerced Defendants to enter into the conspiracy, one cannot turn a blind 22 eye to the economic coercion inherent in a fake stash-house case like this. The 23 Government essentially targets people who are poor and have distorted moral 24 compasses. As Hudson commented in a postarrest interview, “[I]f you ‘tell 3 broke 25 dudes there’s 20 birds [kilograms of cocaine], what do you think’s gonna happen?’” 26 (Mot. Ex. B.) Dunlap’s “willingness” to participate is just as consistent with Dunlap 27 being “broke” and in need of cash as it is with his “propensity to commit robberies”— 28 /// 14 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 15 of 24 Page ID #:976 1 let alone his propensity to commit home-invasion or stash-house robberies. (See 2 Opp’n 8–9.) 3 An exchange between the undercover agent and Defendants on January 30, 4 2013, compellingly demonstrates the economic pressures Defendants faced, 5 exacerbated by the Government: 6 [Agent]: Yep, what do you always say, you ain’t afraid of no money, 7 right? 8 [CI]: Yeah, I ain’t afraid of no money. 9 [Agent]: You ain’t afraid of no cocaina are you? . . . 10 Male: Hell yeah, it will change my life. . . . 11 [Whitfield]: Sure, I’ll never be broke again. 12 straight. . . . 13 [Whitfield]: I’m gonna buy property and everything, probably like five or 14 ten years down the line, but it will be right. My kid’s gonna be 15 (Opp’n Ex. 2 at 45.) With the Government dangling over $600,000 in front of clearly 16 impoverished individuals, it is no surprise that they took the bait. 17 In a recent scholarly article, Professor Eda Katharine Tinto echoes the Court’s 18 concerns. She writes, “The inducements used to persuade suspects to commit, or 19 simply to agree to commit, a serious and severely sentenced set of crimes elicits 20 significant questions regarding the extent of the defendants’ blameworthiness and the 21 possibility that the mandatory sentence will be disproportional to any determination of 22 culpability.” Undercover Policing, Overstated Culpability, 34 Cardozo L. Rev. 1401, 23 1451 (2013). Professor Tinto’s point is well taken. It is difficult to comprehend how 24 a person like Dunlap deserves a 15-plus-year sentence for being part of an entirely 25 fake robbery scheme for a mere five days—especially when the extent of his 26 involvement was merely to say, “I’m straight.” (Aff. ¶ 14(cc).) 27 So while arm-twisting and extortionate threats would easily satisfy the 28 government-coercion factor, so too should the Government hitting individuals like 15 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 16 of 24 Page ID #:977 1 Dunlap where they are most vulnerable: their depressed economic circumstances. The 2 Court consequently finds that this factor weighs in favor of an outrageous- 3 government-conduct determination. 4 5. Nature of the government’s participation in the offense conduct 5 In assessing the Government’s participation in the crime alleged, the Ninth 6 Circuit considers the duration, nature, and necessity of the Government’s actions. 7 Black, 733 F.3d at 308–09. 8 At the hearing, the Government repeatedly argued that it was Defendants who 9 dragged the plan out for two months through their continued excitement to participate 10 and contact with Thompson. But Moore’s affidavit reveals a very different story. On 11 January 7, 2013, Hudson called the CI’s cell phone, but the CI ignored the call. (Aff. 12 ¶ 10.) Rather, the CI sent Hudson a text message stating, “I’ll be back in two days ill 13 call u.” (Id.) On January 21, 2013, speaking to Hudson on the telephone, Thompson 14 “conveyed to HUDSON that the drug traffickers were still in Mexico and the 15 shipment (of cocaine) would probably be coming sometime early in February.” (Id. 16 ¶ 12(a).) These statements demonstrate that Defendants did not call the shots when it 17 came to timing; instead, they simply followed the undercover agent’s lead and met 18 him when he asked. The Government’s drawn-out, two-month involvement in this 19 fictitious stash-house scheme thus only weighs in favoring of dismissing the 20 indictment. See Black, 733 F.3d at 308 (observing that Government participation of 21 longer duration is “of greater concern” than short-term involvement). 22 The Government also misapprehends the law. In assessing whether the 23 Government has engaged in outrageous conduct, the focus is solely on the its 24 actions—not the defendants. Restrepo, 930 F.2d at 712. It is therefore erroneous to 25 justify this fake stash-house scheme based on what Defendants did or did not do. 26 The nature of the ATF’s conduct similarly tips the scales against the 27 Government. In Black, the court noted that the undercover agent “provided no 28 weapons, plans, manpower or direction about how to perform the robbery, even when 16 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 17 of 24 Page ID #:978 1 the defendants sought his advice.” Id. at 309. But here, the undercover agent 2 provided a getaway van, putative safe house, and—most important of all—the entire 3 scheme and its fictitious components. He also alleviated Defendants’ logistical and 4 safety concerns when he “proposed that he would be inside the stash house at the time 5 of the robbery . . . .” (Aff. ¶ 8(i).) 6 Thompson also goaded Defendants to acquire weapons. He repeated several 7 times over the course of the two-month ruse that “at least one of the individuals 8 [guarding the nonexistent stash house] always carried a firearm.” (Id. ¶ 8(e); 8(m) 9 (“SA Thompson asked if HUDSON and WHITFIELD’s associates could handle it if 10 something happened during the robbery (referring to someone getting shot).”); 11(u) 11 (“SA Thompson asked if they could get him something (referring to a firearm), and 12 WHITFIELD indicated he could get SA Thompson a little .380.”); 14(o) (“SA 13 Thompson asked about WHITFIELD getting him a little ‘strap’ (referring to a firearm 14 that was previously discussed) and SA Thompson offered to cash him out (meaning 15 pay him for the firearm). WHITFIELD indicted [sic] he could get SA Thompson 16 something.”); 14(u) (“SA Thompson next mentioned that there was always two 17 individuals in the stash house and at least one of them was always armed, but as far as 18 he knew, both could be armed.”); 14(ll) (“SA Thompson later indicated that the 19 occupants of the stash house may not go down very easy.”); Opp’n Ex. 2 at 28 (“Like 20 I said the one fool he is always strapped, but the other dude I think he might be, I just 21 don’t know.”).) 22 surprising that Defendants showed up to the final meeting with two weapons. With Thompson continually sounding the war horn, it is not 23 The undercover agent’s continued participation, assurances, and suggestions 24 over the course of the two-month period made him “a partner in the criminal activity” 25 rather than a mere “observer.” See Black, 733 F.3d at 308. His input was likewise 26 “necessary” for Defendants to carry out their doomed plan, since but for Thompson’s 27 imagination, there would have been no fictitious stash-house robbery to begin with— 28 let alone the need for guns and extra associates. See id. at 309. 17 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 18 of 24 Page ID #:979 1 In these stash-house cases, the Government’s “participation in the offense 2 conduct” is what makes them particularly repugnant to the Constitution. Everything 3 about the scheme—and therefore almost everything bearing upon a defendant’s 4 ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 5 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly 6 armed—necessitating that Defendants bring weapons along with them? All of these 7 factors came down to the ATF and the undercover agent alone. 8 arbitrariness offends the Constitution’s due-process demands. See Collins v. City of 9 Harker Heights, Tex., 503 U.S. 115, 127 n.10 (1992) (“[T]he Due Process Clause, like 10 its forebear in the Magna Carta, was intended to secure the individual from the 11 arbitrary exercise of the powers of government . . . .” (citation omitted) (internal 12 quotation marks omitted)); Black, 733 F.3d at 317 (Noonan, J., dissenting) (“[I]t is a 13 violation of due process for sentences to be at the arbitrary discretion of the ATF.”). That sort of 14 The Ninth Circuit has also remarked that these fake stash-house cases draw 15 dangerously close to another criminal-justice issue: sentencing entrapment. The court 16 stated, 17 In fictional stash house operations like the one at issue here, the 18 government has virtually unfettered ability to inflate the amount of drugs 19 supposedly in the house and thereby obtain a greater sentence for the 20 defendant. In fact, not only is the government free to set the amount of 21 drugs in a fictional stash house at an arbitrarily high level, it can also 22 minimize the obstacles that a defendant must overcome to obtain the 23 drugs. The ease with which the government can manipulate these factors 24 makes us wary of such operations in general, and inclined to take a hard 25 look to ensure that the proposed stash-house robbery was within the 26 scope of [the defendant’s] ambition and means. 27 United States v. Briggs, 623 F.3d 724, 729–30 (9th Cir. 2010) (citation omitted). In 28 fact, the Ninth Circuit was so concerned with sentencing entrapment in stash-house 18 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 19 of 24 Page ID #:980 1 cases that the court formulated a specific test to apply in these scenarios: “in the case 2 of fictitious stash house robberies, the defendant need only show a lack of intent or 3 lack of capability to deal in the quantity of drugs charged” to establish sentencing 4 entrapment. United States v. Yuman-Hernandez, 712 F.3d 471, 474–75 (9th Cir. 5 2013), cert. denied, 134 S. Ct. 261 (2013). 6 While case law has thus made it slightly easier for a defendant to establish a 7 sentencing-entrapment defense, the defense only comes into play if a defendant rolls 8 the dice and goes to trial. In this Court’s own experience with these fictitious stash- 9 house cases, that is not a likely scenario. With the capriciously selected amount of 10 drugs, a defendant has the proverbial Sword of Damocles hanging over his head. He 11 is not likely to let it fall and face the considerable prison time that surely awaits him if 12 he loses at trial—especially when the Government has spent, like in this case, months 13 recording conversations inculpating him in the trumped-up conspiracy. 14 It is also no accident that the ATF selects the amount of drugs that it does. If a 15 defendant is convicted of possessing five kilograms or more of cocaine with intent to 16 distribute, he faces a 10-year mandatory-minimum sentence. 17 § 841(b)(1)(A). 18 possessing a firearm in connection with a drug-trafficking offense. 19 § 924(c)(1)(A). Twenty to twenty-five kilograms in the fake stash house puts the 20 defendant at a base offense level of 34, U.S.S.G. § 2D1.1(5), (c), with an upward 21 adjustment of two for possessing a dangerous weapon in connection with the offense, 22 id. § 2D1.1(b)(1). A fake stash-house defendant with a criminal-history category of 23 one—a very unlikely scenario—therefore faces about 15 to 20 years’ imprisonment 24 for a crime entirely dreamed up by the Government. 25 21 U.S.C. The defendant also faces another five years imprisonment for 18 U.S.C. At the hearing on the Motion, the Government proffered a rather curious 26 justification for the arbitrary drug amount the undercover agent selected. 27 Government argued that based on Special Agents Moore and Thompson’s training and 28 experience, the 20 to 25 kilograms at issue is commensurate with real stash houses in 19 The Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 20 of 24 Page ID #:981 1 the Southern California area. Thompson had to select this amount in order to establish 2 his credibility as a purported drug courier—the amount being within the “realm of 3 reality” for people “in this line of work” per the Government. 4 But the Government’s rationalization is hopelessly circular. The Government 5 seeks to prosecute Dunlap for a fake crime it cut from whole cloth. To justify the 6 serious sentence Dunlap faces as the result of its imagination, the Government 7 attempts to use its creation of the crime, including the need to establish the undercover 8 agent’s credibility, as the validation for the amount of drugs. The amount of drugs 9 then justifies the sentence. But since the Government created each necessity and 10 justification, the sentence no longer bears a proportional relationship to the 11 defendant’s culpability—just the Government’s imagination. Something more than 12 mere bootstrapping is needed for the Government to take 15-plus years away from 13 Dunlap’s life. 14 The Government’s argument also proves the problem with this whole scheme. 15 The Government asserts that it dreams up these stash-house robberies to catch people 16 inclined to commit home invasions. But the Government must make the robbery 17 scheme tempting enough to nab a potential criminal. The Government thus sets the 18 drug amount at a level apparently it knows that no poverty-ridden individual could 19 pass up. So the Government essentially admits that this ruse is not meant to simply 20 skim off those individuals likely to commit similar crimes; rather, it is designed to 21 never fail. And the high number of fake stash-house convictions the Government has 22 attained confirms this strategy. 23 The Court thus finds that the Government’s extensive, essential participation in 24 the offense conduct in this case tips the scales of justice in Dunlap’s favor. Society 25 does not win when the Government stoops to the same level as the defendants it seeks 26 to prosecute—especially when the Government has acted solely to achieve a 27 conviction for a made-up crime. 28 /// 20 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 21 of 24 Page ID #:982 6. 1 Nature of the crime being pursued and necessity for government’s actions 2 3 Zero. That’s the amount of drugs that the Government has taken off the streets 4 as the result of this case and the hundreds of other fake stash-house cases around the 5 country. That’s the problem with creating crime: the Government is not making the 6 country any safer or reducing the actual flow of drugs. But for the Government’s 7 action, the fake stash house would still be fake, the nonexistent drugs would still be 8 nonexistent, and the fictional armed guards would still be fictional. See Black, 733 9 F.3d at 302–03 (finding the Government’s entire fiction to be “troubling”). Instead, 10 the Government comes close to imprisoning people solely because of their thoughts 11 and economic circumstances rather than their criminal actions. Reverse stings actually serve to benefit real stash-house operators. As the 12 13 famed Law and Economics jurist Judge Richard Posner observed, 14 The effect of a fictitious stash house sting, when the person stung is . . . a 15 real stash house robber, is therefore to make stash houses more secure by 16 reducing the likelihood of their being robbed. A sting both eliminates 17 one potential stash house robber (unless the defendant was entrapped) 18 and deters other criminals from joining stash house robberies, since they 19 may turn out to be stings. The greater security that fictitious stash house 20 stings confer on real stash houses—security obtained at no cost to the 21 operators of stash houses—reduces their cost of self-protection, which is 22 a principal cost of the illegal-drug business. The lower a business’s 23 costs, the lower the prices charged consumers, and so the greater the 24 demand for illegal drugs and the more sales and consumption of them. 25 The operators of stash houses would pay law enforcement to sting 26 potential stash house robbers. 27 /// 28 /// 21 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 22 of 24 Page ID #:983 1 United States v. Kindle, 698 F.3d 401, 416 (7th Cir. 2012) (Posner, J., concurring and 2 dissenting), reh’g en banc granted, opinion vacated (Jan. 16, 2013), cert. denied, 133 3 S. Ct. 1743 (2013). 4 But these stash-house cases do cost someone money: federal taxpayers. As of 5 the date of this Order, there are 215,566 inmates in federal detention. Statistics, 6 Federal 7 statistics.jsp (last visited Mar. 10, 2014). According to the Bureau of Prisons, the 8 average cost to incarcerate a federal inmate in 2011 was $28,893.40. 9 Determination of Average Cost of Incarceration, 78 Fed. Reg. 16711, 16711 (Mar. 18, 10 2013). In fictitious stash-house cases, the ATF usually seeks a 15-year sentence. 11 Black, 733 F.3d at 317 (Noonan, J., dissenting). These fake robberies therefore cost 12 federal taxpayers approximately $433,401 per defendant in incarceration costs 13 alone—not to mention investigative, prosecutorial, defense, and judicial resources. 14 That number only continues to skyrocket if a defendant is subject to a higher criminal- 15 history category and aggravating factors. Bureau of Prisons, http://www.bop.gov/about/statistics/population_ Annual 16 Society must question whether the astronomical cost associated with 17 prosecuting fake crime is worth it. In a recent Wall Street Journal article, United 18 States District Judge Michael A. Ponsor remarked, “Today, we imprison more of our 19 people than any other country in the world. . . . Either our fellow Americans are far 20 more dangerous than the citizens of any other country, or something is seriously out of 21 whack in the criminal-justice system.” Hon. Michael A. Ponsor, The Prisoners I Lose 22 Sleep Over, The Wall Street Journal, Feb. 12, 2014. When the nation imprisons 23 people solely because the Government dreams up a too-good-to-turn-down robbery 24 and then targets people it knows are eager to make an easy buck, Judge Ponsor’s 25 concerns are only further borne out. 26 The Court in no way decries all reverse-sting operations as a matter of law. 27 Used properly, they can be a powerful tool for law enforcement to catch dangerous 28 individuals plotting serious crime before they succeed and harm others. But when the 22 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 23 of 24 Page ID #:984 1 goal of the reverse sting becomes landing convictions alone, the Government loses the 2 justification for employing this crime-fighting tool. Wherever the line is drawn, this 3 case falls on Dunlap’s side. Due process demands that much. 4 C. Inherent supervisory power 5 In his Motion, Dunlap also mentions another, alternative basis for the Court 6 dismissing the indictment: the Court’s inherent supervisory power. The Court may 7 exercise this power for three reasons: “to remedy a constitutional or statutory 8 violation; to protect judicial integrity by ensuring that a conviction rests on 9 appropriate considerations validly before a jury; or to deter future illegal conduct.” 10 United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991); see also 11 United States v. Hasting, 461 U.S. 499, 505 (1983). But neither Dunlap nor the 12 Government fully briefed this issue, so the Court declines to opine whether its 13 supervisory powers likewise warrant dismissing the indictment in this case. V. 14 CONCLUSION 15 The Court is mindful of the Supreme Court’s admonition in Russell: the federal 16 judiciary does not have “a ‘chancellor’s foot’ veto over law enforcement practices of 17 which it did not approve. The execution of the federal laws under our Constitution is 18 confided primarily to the Executive Branch of the Government, subject to applicable 19 constitutional and statutory limitations and to judicially fashioned rules to enforce 20 those limitations.” 411 U.S. at 435. The Executive Branch’s enforcement obligation 21 is certainly a difficult one, as people will always find new ways of evading law- 22 enforcement detection and carrying out their criminal enterprises. This ever-shifting 23 landscape demands that law-enforcement agencies employ creative tactics to ferret out 24 crime and keep society safe. 25 But it is not the role of the Judicial Branch to merely rubberstamp whatever 26 imaginative device the ATF and other agencies dream up. Rather, it is the duty of the 27 courts “to declare all acts contrary to the manifest tenor of the Constitution void. 28 /// 23 Case 2:13-cr-00126-ODW Document 112 Filed 03/10/14 Page 24 of 24 Page ID #:985 1 Without this, all the reservations of particular rights or privileges would amount to 2 nothing.” The Federalist No. 78 (Alexander Hamilton). 3 The time has come to remind the Executive Branch that the Constitution 4 charges it with law enforcement—not crime creation. A reverse-sting operation like 5 this one transcends the bounds of due process and makes the Government “the 6 oppressor of its people.” 733 F.3d at 318 (Noonan, J., dissenting). In this case, the 7 Constitution will not tolerate subjecting an individual to prosecution for an imaginary 8 crime subject to a very real punishment—a punishment which rests entirely on ATF 9 agents’ whims. Since it is the Court’s sworn duty to uphold the Constitution, the 10 Court GRANTS Dunlap’s Motion to Dismiss the Indictment. (ECF No. 92.) Dunlap 11 shall be RELEASED from custody FORTHWITH barring any other holds. 12 IT IS SO ORDERED. 13 14 March 10, 2014 15 16 17 Cc: USM ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 24