Sunday, November 17, 2013

Stash Houses: The ATF's Crime

Can't say it any better than this:

Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.

That's the spitting outrage (that's why it's in red) from Judge Noonan, unfortunately in a dissent in a Ninth Circuit decision (two strikes), US v. Black,  2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20.  In what the majority politely calls a 'reverse sting operation', an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house. The district court denied both a motion to dismiss for outrageous government misconduct (an impossibly high standard) and also a sentencing entrapment argument. 

Nonetheless, if you have a stash house case, this is worth reading. It was well-litigated (three-day evidentiary hearing), and the majority is mildly critical of the recruitment methods: "The CI’s role was to try and find some people that are willing to go commit a home invasion.” Nothing manufactured about that, huh?

But it is the dissent that provides the framework and the fuel for any such challenge. And it would be good to inject Judge Noonan's outrage into any stash house case.

The also-read: US v. Cortez2013 WL 5539622 (9th Cir. Oct. 9, 2013).

Disclosure: Full credit to Steve Sady's Blog post (from which this is shamelessly lifted).

-- Melody


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