Wednesday, August 10, 2016

Sentence-manipulating stash-house stings violate due process

How about this for a non-cooperator sentencing outcome:

Guideline sentence = 35 years.
Mandatory minimum = 25 years.
Sentence imposed = 14 years.

Those are the numbers from this stash-house-sting defendant's sentencing, during which Judge Gerald Austin McHugh of the Eastern District of Pennsylvania declared that enforcing the mandatory minimum where investigating agents preordained the sentence during the sting operation would violate due process.

The facts:

A CI trolling for work reported a random encounter with Clifton McLean, during which McLean allegedly said he was "looking for something to take." At the direction of ATF agents, the CI proposed to McLean that they rob a stash house containing an unspecified number of kilos of cocaine. It was not until several communications later that an undercover ATF agent mentioned 8-10 kilos to McLean. As the district court would later note, McLean did what anyone would do: He embraced the serendipity of the situation. "Indeed, any defendant who would suddenly opine that he was willing to rob the stash house so long as the take did not exceed 4.9 kilograms would obviously be astute enough to withdraw altogether."

Some golden opinion nuggets (but don't stop here—read the whole opinion):

"From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence."

"By . . . proceeding to raise the stakes with an inflated amount of drugs, the Government confuses responsibility with reward."

"[I]t is the following combination of factors that leads me to conclude that enforcing [the 25-year] mandatory minimum would offend due process: the inherently arbitrary way in which stash house sting cases first ensnare suspects; the immense power delegated to case agents who can pre-ordain a sentence at the outset of the operation; the lack of any meaningful way to test the validity of the Government’s justification for the amount of narcotics built into the sting; the lack of a genuine nexus between the amount of narcotics proposed and the defendant’s culpability; the lack of sufficient evidence here that McLean ever sought to deal at the level proposed by the Government; the lack of a criminal record that unambiguously demonstrates McLean had a propensity for violence, aside from his braggadocio; the risk that the sheer immensity of the sentences that follow from such operations compels guilty pleas; and the disparities in sentencing that are seemingly endemic to all of these prosecutions because the structure of the sting mandates lengthy imprisonment for any non-cooperator."

But what about officer safety?

Judge McHugh was skeptical of the government's argument that agents must invoke high quantities in fictional stash houses to protect their credibility and safety in the field.

First, "[d]efendants have little ability to challenge or verify evidence of undercover operations that is presented solely in the form of testimony by a Government agent. Courts should exercise caution before automatically adopting ‘expert’ opinion from law enforcement about the essential elements of undercover operations, where accepting such opinions has the effect of controlling sentencing. * * * There are no peer-reviewed journals within the narcotics trade. There is no way to test the premises on which these sting operations are based. None of the traditional means by which expert testimony can be tested in a systematic way apply here, yet courts are expected to accept such opinion as the justification for undercover operations that inexorably and indiscriminately give rise to large mandatory minimum sentences."

Second, "tying the physical safety of an agent to a mandatory triggering quantity of drugs is problematic. Such a rationale cannot help but inhibit any judge who must consider the implications of sting operations because no responsible judicial officer would ever want to place agents in harm’s way."

Third, assuming that officer safety does, in fact, hinge on proposing that the target steal a large quantity of drugs, "why is it necessary to charge the target of the investigation with such high amounts in every case?"

Ultimately it is the government’s charging decision that rankles the court: "[E]ven if one were to accept the validity of the Government’s premise, or err on the side of caution so as not to put undercover agents at risk, that operational imperative should not become the basis for charges against the defendant where the defendant’s assent to the amount of narcotics does not accurately reflect culpability."

"I decide here that the statute is unconstitutional as applied in the circumstances of this case, because McLean was not properly charged with a crime involving 5 kilograms of cocaine. Stated differently, the branch of government with which I take issue in not the legislative, but the Case executive, and its use of mandatory minimum sentences in a manner which I have no reason to believe Congress contemplated."

Cool, but can my client get in on this?

Judge McHugh suggests that stash-house stings inherently violate due process:
"[I]n my view, a concentration of power that allows the Government to define both crime and punishment, with no possibility for judicial review of the facts of the individual case, amounts to a structural violation of substantive due process violations."

But he also finds a due process violation based on the facts at hand. The safest route is to argue that stings like this violate due process both facially and as applied to your client.

What does the Tenth Circuit have to say about this?

The Tenth Circuit is ahead of some other circuits by recognizing that courts may vary or depart because of sentencing entrapment (also called sentencing manipulation). See United States v. Beltran, 571 F.3d 1013 (2009). Check out Beltran and make sure your argument is couched in the standards it adopts (or explain why you don't have to meet those standards, whether because McLean is better reasoned or otherwise).

One last note: Some courts (including the Tenth Circuit) have offhandedly stated that district courts may not depart below a statutory mandatory minimum based on sentencing entrapment. But sentencing entrapment is a due-process argument. It is a constitutional argument. And just as rock always defeats scissors, in every battle between the constitution and a statute, the constitution by definition wins.

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