United States v. Washington
| Decision Date | 17 September 2015 |
| Docket Number | No. 2:13–cr–00054 (KJM).,2:13–cr–00054 (KJM). |
| Citation | 131 F.Supp.3d 1007 |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Marlon WASHINGTON, Defendant. |
Jason Hitt, United States Attorney's Office, Sacramento, CA, for Plaintiff.
Michael E. Hansen, Law Offices of Michael E. Hansen, Sacramento, CA, for Defendant.
KIMBERLY J. MUELLER
, District Judge.
Defendant Marlon Washington was one of nine men arrested and indicted in a reverse sting operation designed to capture drug stash house burglars. The matter is before the court on Washington's motion to dismiss the indictment for outrageous government conduct. Mot., ECF No. 257 at 1–2. The government opposes the motion, ECF No. 265, and Washington has replied, ECF No. 266. As announced from the bench on September 9, 2015, and explained below, the motion is DENIED.
In January 2013, the Bureau of Alcohol, Tobacco, and Firearms (ATF) initiated a reverse sting operation in Stockton, California to apprehend cocaine stash house robbery crews.1 Opp'n Ex. A at A–1, ECF 265–1. As part of the operation, a confidential informant (CI) for the ATF approached a man named Kireston Harper (aka K–Stack) at a Stockton strip club. Gov't Disc. at 1; Mot. at 5; Opp'n at 1.2 The initial contact between the CI and Harper was not recorded with audio or video. Mot. at 5–6; see Opp'n at 1–2. The CI asked about Harper's ability to obtain drugs or guns or both. Gov't Disc. at 1; Mot. at 5; Opp'n at 1. At some point in the conversation, Harper asked if the CI "knew of any ‘licks' he and his associates could execute." Finney Aff. ¶ 5. "Licks" is slang for robberies. Id. The CI told Harper he or she could introduce him to someone, namely, Agent Zayas, the ATF's undercover agent (UC), who had information about a potential robbery. Gov't Disc. at 1; Mot. at 6; see Opp'n at 1–2. In the initial report Agent Zayas filed on the meeting between CI and Harper, he never describes Harper as someone involved with home invasion robberies. Gov't Disc. at 1; Mot. at 6. However, a DEA application for a search warrant drafted by Agent Renee Finney on August 14, 2013 states the CI described Harper to Agent Zayas as someone "involved in home invasion robberies." Finney Aff. ¶ 5.
Agent Zayas arranged meetings on January 28, 29, and 31, 2013, with Harper and a robbery crew Harper assembled. Each meeting was video and audiotaped. Finney Aff. ¶¶ 7, 12, 14. Defendant Washington was present at each meeting. Id. During the meetings, Agent Zayas pretended to be a disgruntled cocaine courier recruiting help to steal cocaine from a stash house controlled by his drug boss. See id.
After hearing the robbery proposal at the first meeting, Harper said, "you ain't got to say no more." Id. ¶ 7. Agent Zayas told Harper he was nervous, and Harper assured him he had "nothing to worry about." Id. Harper told Agent Zayas he was going to take the cocaine with him when he returned to Chicago in two weeks. Id. ¶ 8.
During the meetings, Agent Zayas told Harper's crew two men guarded the stash house, at least one of whom would be armed. Id. During the January 29 meeting, Agent Zayas said he had never seen the second man with a gun, "but he might have a gun on him right now." See Mot. at 8 (quoting Audio File 153); see also Finney Aff. ¶¶ 8–9. Harper said he expected four men would guard the stash house, but "two, that's even better, I'm going to keep it solid, that's even better." Finney Aff. ¶ 8. Agent Zayas said when he previously picked up cocaine from the stash house, he had seen seven to ten kilograms of cocaine. Mot. at 12 (quoting Gov't Disc. at 309–10); Opp'n at 2; see also Finney Aff. ¶ 10. Zayas said the cocaine was pure. Finney Aff. ¶ 10. He offered to split it "50–50" with Harper. Id.
Agent Zayas asked Harper if he needed a car for the robbery, but he said no, "I'm ready, all you got to do is tell me when you ready to go." Mot. at 9 (quoting Audio File 153); Opp'n at 3. Harper told Agent Zayas to leave the door unlocked after he entered the stash house. See id. Harper said he would push Agent Zayas to the floor as his crew entered the house behind him. Finney Aff. ¶ 13. Agent Zayas said, "These guys ain't clowns, they're older cats like me, but I ain't got no love for these guys, you guys do what you're going to do...." Mot. at 9 (quoting Audio File 153). Agent Zayas asked Harper if everything was good, and Harper replied, "Everything good on this half." Finney Aff. ¶ 13.
On February 1, 2013, the CI called Harper and told him to meet at the Home Depot in Stockton. Id. ¶ 16. The call and the meeting were recorded. Id. ¶¶ 7, 20. The robbery crew arrived in three cars: a Toyota, Chevy, and Honda. Id. ¶ 18. Harper was in the Toyota. Id. Defendant Washington stayed in his car, the Honda, for the duration of the meeting, until he was arrested later that day. Mot. at 11 (citing Gov't Disc. at 22); see also Finney Aff. ¶ 25. The CI asked whether the crew was "in or out." Id. ¶ 19. Several unidentified voices confirmed they were "in." Id. The group left for another location, where they would meet Agent Zayas. See id. ¶¶ 19–20.
When the group arrived at the Royce Farms BBQ in Stockton, Harper and three others exited the Toyota, and Agent Zayas reviewed the robbery plan with them. Id. ¶¶ 20–21. He asked twice if they were prepared to follow through with it. Id. ¶ 21. The four men said they were ready and understood the deal. See, e.g., id. ( ). Agent Zayas said he wanted them to take his half of the cocaine to a nearby storage unit after the robbery and asked them to follow him there. Id.
All three cars, including defendant's Honda, left the BBQ with Agent Zayas. Id. When they arrived at Morada Self–Storage in Stockton, the Toyota followed Zayas inside. Id. The other two cars, including the defendant's, continued to a nearby bar. Id. The occupants of the Toyota, including Harper, left their cars, and Agent Zayas told Harper to leave the cocaine in his storage unit. Mot. at 13 (quoting Video File 165); Opp'n at 5–6. Harper asked, 3 but Agent Zayas cut Harper short and pretended to answer a phone call in Spanish. Mot. at 13 (quoting Video File 165). ATF agents then stormed in from a nearby storage unit and arrested Harper and the two others with him. Finney Aff. ¶ 22.
Soon afterwards, the defendant and the rest of the robbery crew were arrested where they had parked at the bar. Id. ¶¶ 23–26. No weapons were found on the defendant, but he was wearing a hooded sweatshirt and black knit hat, and had a black glove in his pocket. Id. ¶ 33. No items of evidence were recovered from the car the defendant was driving. Id. ¶ 35. However, agents seized items from the two other cars and from the other members of the robbery crew, including several guns, two knives, two bullet proof vests, gloves, black hoodies, and black beanies converted to face masks. Id. ¶¶ 27–36. In codefendant Frank's Mirandized statement, in which Frank admitted he met other members of the crew at Harper's house just before the Home Depot meeting, Frank said the bulletproof vests, masks, gloves, and guns had been handed out to the members of the robbery crew there. Id. ¶ 39.
On February 14, 2013, defendant Washington and eight others were indicted for conspiracy to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §§ 846
, 841(a)(1) and conspiracy to commit a robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a). Indictment, ECF No. 28. On January 28, 2015, defendant filed the instant motion to dismiss the indictment. He contests the reverse sting as a violation of his Fifth Amendment right to due process under the doctrine of outrageous government conduct.
On April 15, 2015, the court heard argument on the motion and after hearing granted defendant leave to file a request to supplement his motion. ECF No. 279. The defendant did not file a request, and his motion to dismiss was submitted on May 27, 2015. ECF No. 289. On August 18, 2015, the government filed a notice of supplemental authority, identifying United States v. Pedrin,
797 F.3d 792 (9th Cir.2015), which the court has now considered.
Under Federal Rule of Criminal Procedure 12(b)
, "a party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed.R.Crim.P. 12(b). The court may consider extrinsic evidence on a motion to dismiss the indictment, United States v. Jones, 542 F.2d 661, 664 (6th Cir.1976), and "may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact," United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986) (quoting Jones, 542 F.2d at 664 ). On appeal these findings are reviewed for clear error. United States v. Black, 733 F.3d 294, 301 (9th Cir.2013).
A dismissal for outrageous government conduct is rooted in the Due Process Clause of the Fifth Amendment, which provides no person shall "be deprived of life, liberty, or property without due process of law." U.S. Const. amend. V
. The Supreme Court has found outrageous government conduct occurs when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."...
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