United States v. Black

• Decision Date: 02 May 2014
• Docket Number: 11–10039,11–10037,Nos. 11–10036,11–10077.,s. 11–10036
• Citation: 750 F.3d 1053
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cordae L. BLACK, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Angel Mahon, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Kemford J. Alexander, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Terrance L. Timmons, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

750 F.3d 1053

UNITED STATES of America, Plaintiff–Appellee,

v.Cordae L. BLACK, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Angel Mahon, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Kemford J. Alexander, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Terrance L. Timmons, Defendant–Appellant.

Nos. 11–10036, 11–10037, 11–10039, 11–10077.

United States Court of Appeals, Ninth Circuit.

May 2, 2014.

John Zachary Boyle, Karla Delord, USPX—Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff–Appellee.

Tara Kristine Hoveland, South Lake Tahoe, CA, for Defendant–Appellant.

Before: JOHN T. NOONAN, JR., SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.

ORDER

Judge Noonan has voted to grant the petitions for panel rehearing and recommended granting the petitions for rehearing en banc. Judges Graber and Fisher have voted to deny the petitions for panel rehearing. Judge Graber has voted to deny the petitions for rehearing en banc and Judge Fisher has so recommended.

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35(f).

Appellant Cordae L. Black's petition for rehearing en banc (No. 11–10036), filed November 5, 2013, is DENIED.

Appellant Angel Mahon's petition for panel rehearing and rehearing en banc (No. 11–10037), filed January 6, 2014, is DENIED.

Appellant Kemford J. Alexander's petition for panel rehearing and rehearing en banc (No. 11–10039), filed January 6, 2014, is DENIED.

Appellant Terrance L. Timmons' petition for panel rehearing and rehearing en banc (No. 11–10077), filed November 6, 2013, is DENIED.

Judge REINHARDT'S dissent from denial of rehearing en banc is filed concurrently with this Order.

Judge REINHARDT, with whom Chief Judge KOZINSKI joins, dissenting from the denial of rehearing en banc:

The Black cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values. An undercover government agent in Phoenix sent a paid confidential informant (CI) to randomly recruit “bad guys” in a “bad part of town” to help rob a non-existent stash house. While trolling in a bar, the paid CI successfully tempted a randomly-selected person to participate in the (fictional) crime by offering him the opportunity to obtain a huge financial benefit. After the CI put the participant in touch with the government agent, the agent urged the participant to bring others into the plot, played the principal role in devising and executing the imaginary crime, and then walked the defendants through a script that ensured lengthy prison sentences for committing a crime that did not exist.

The Black cases require us to address the limits on how our government may treat its citizens. They pose the question whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty. Equally important, these cases force us to consider the continued vitality of the outrageous government conduct doctrine itself. The majority opinion decides all of these issues incorrectly. Further, despite its claims to the contrary, the majority's reasoning does virtually nothing to caution the government about overreaching. Instead, it sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable. I therefore dissent from the court's decision not to rehear these cases en banc.

I

The facts are undisputed. See United States v. Black, 733 F.3d 294, 297–301 (9th Cir.2013). The government sent a paid CI to Phoenix with instructions to recruit random persons to help rob a non-existent cocaine stash house. Following orders, the CI went to bars in “a bad part of town” and looked for people who seemed to him like “bad guys.” The CI had not been told to seek out people already engagedin criminal activity or even persons engaged in suspicious conduct. Rather, as instructed, he trolled for targets in bars and eventually encountered Shavor Simpson, who expressed a willingness to join in the robbery. The CI introduced Simpson to his handler, Agent Zayas, who posed as a disgruntled former drug courier. Simpson asserted that he had criminal experience and introduced Zayas to Cordae Black. Agent Zayas recruited Simpson and Black, fed them details about the imaginary target (including the number of kilos of cocaine to be found in the imaginary stash house), encouraged them to be sure to bring guns along while performing their government-created mission, and described “facts” regarding the stash house in order to convince Simpson to involve more people in their plan (this is how Defendants Alexander, Mahon, and Timmons got involved). Agent Zayas told the defendants when to meet and where to go. Black contributed to the planning of the offense, but the scheme was of the government's devising. When the defendants met with Agent Zayas in preparation for the robbery, he led them to a warehouse where they were arrested.

The entire operation was, of course, a fiction. Agent Zayas had created an elaborate crime-script and the defendants had followed it under his sustained and careful supervision. All Agent Zayas had to do was send his CI to a “bad” part of town in search of “bad” guys, leaving the choice of targets entirely to his CI's prejudices and intuitions. Sure enough, after testing a number of people to see if they would be willing to commit a crime that would allow them to make a great deal of money, the CI had his first success. From there on the government's scheme proceeded as planned.

II

The Black cases present important questions about our constitutional values. As we have long recognized, the Due Process Clause requires us to dismiss the indictment in “extreme cases in which the government's conduct violates fundamental fairness.” United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.2011) (citation omitted). In other words, a conviction must fall where “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Here, the government's conduct ran afoul of several fundamental constitutional principles and, thus, the convictions cannot stand.

One of the most serious problems with the law enforcement tactics used in the Black cases is that they present a direct threat to the fundamental principle of racial equality. It is deeply disturbing that Agent Zayas sent his paid CI to look for “bad guys” in a “bad part of town,” i.e. in a minority neighborhood. In an age of widely-reported unequal enforcement of the criminal laws, both at the state and federal levels, the sort of assignment given to the CI is an open invitation to racial discrimination—especially given the complete absence of any effort by Agent Zayas to aim the operation at known or suspected criminals.¹See, e.g., Floyd v. City of New York, 959 F.Supp.2d 540, 560 (S.D.N.Y.2013), appeal dismissed (Sept. 25, 2013) (Scheindlin, J.) (finding discriminatory enforcement by police of stop and frisk policies in New York City); Michelle Alexander, The New Jim Crow: Mass Incarceration in an Age of Colorblindness 9 (2010); Bruce Western, Punishment and Inequality in America 3 (2006). The manifest danger of racial discrimination inherent in the law enforcement tactics used here is an important part of why “random,” suspicionless dragnets that test people for their willingness to break the law are offensive to the Constitution. Cf. United States v. Armstrong, 517 U.S. 456, 483, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (Stevens, J., dissenting) (warning against “the danger of arbitrary enforcement” of the drug laws and invoking “the need for careful scrutiny of any colorable claim of discriminatory enforcement”). The Due Process Clause protects many of our rights, including the right be free from the use of law enforcement tactics that are inherently racially discriminatory. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ( “[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws' is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ ... [b]ut, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”).

A similar analysis also applies to socio-economic discrimination. Cf. Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Douglas v. People of State of Cal., 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).² The danger of tempting otherwise law-abiding people into crime through reverse stings is substantially heightened when the government takes aim at poor neighborhoods and tempts their residents with the prospect of making large amounts of money through criminal activity.³See Black, 733 F.3d at 313 (Noonan, J., dissenting) (“ ‘Lead us not into temptation’ is part of a prayer familiar to many. But few, I believe, would think of this prayer as addressed to the government of the United States or would think it necessary to address the government with such a request.”). At the right moment and when described in attractive enough terms, such offers may lead astray otherwise law abiding young men living in poverty, and...