In a case involving a Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) “reverse sting” on an imaginary cocaine stash house, federal prosecutors have requested that an appeals court reinstate charges against two men who had drug conspiracy and robbery conspiracy charges dropped after a district judge ruled the government engaged in outrageous misconduct.
However, Judge William A. Fletcher, who was appointed to the Ninth Circuit Court of Appeals by President Bill Clinton, expressed his disgust with the government’s conduct. “I think the government is wasting resources. I think it is encouraging them to commit crimes they otherwise wouldn’t commit.”
“And you are protecting the stash houses and then, after we imprison these guys, we’ve got to pay for their imprisonment. I think it’s a totally misguided policy. Now, the law is the law and I’m going to follow it. But I think you guys are making a mistake.”
Judge Otis Wright ruled on March 10 of this year [PDF], “The government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the government’s actions outrageous.”
Cedrick Marquet Hudson, Joseph Cornell Whitfield and Antuan Duane Dunlap were arrested while they were waiting in a fake safe house provided by the government with weapons and just before they were to go rob an imaginary stash house that an ATF special agent had claimed had kilograms of cocaine of “pure ass coca” and “no bullshit cocaine.”
Fletcher asked Assistant US Attorney Mark Yohalem, “If the defendant here were able to prove that he had no propensity to commit this crime, would that amount to outrageous conduct on the part of the government?”
“Absolutely not, your honor,” Yohalem replied.
“Would you please turn your attention to United States v. Yuman-Hernandez where the panel wrote, “The act of inducing a defendant to commit a crime he or she is not predisposed to commit is necessarily outrageous.” So, what do you say to that?”
Yohalem replied that Yuman-Hernandez was a sentencing case. Fletcher interrupted him and countered that it was a sentencing case where “deliberate outrageous conduct” had been addressed, which was part of this discussion.
Perhaps, shockingly, Yohalem proceeded to insist that predisposition would not matter in making a finding of “outrageous conduct” in this case. Fletcher reminded Yohalem, “Outrageous conduct doesn’t mean that a crime wasn’t committed. It means the government is foreclosed from prosecuting the crime.”
Additionally, this remarkable exchange took place at the beginning of oral argument between Yohalem, Fletcher and Judge A. Wallace Tashima as Yohalem tried to defend “reverse stings” involving made-up stash houses as “sensible.”
FLETCHER: Judge Posner says that the operators of stash houses should be willing to pay the United States government for what they have done in order to protect stash houses. Why is this sensible?”
YOHALEM: The United States is not merely fighting a war on drugs. It is fighting a war on violent crime…
FLETCHER: It is also trying to protect stash houses.
YOHALEM: No, your honor. It’s trying to protect communities in which stash houses are hidden, which are in residential communities that are often prone to violence.
TASHIMA: There’s no showing here that this was a neighborhood where stash houses were held in, were there?
YOHALEM: To begin with, it’s a fictitious stash house…
TASHIMA: So how can you say they’re trying to protect neighborhoods where stash houses are hidden when all they’re after are imaginary stash houses? That would be an imaginary neighborhood, right?
YOHALEM: It’s protecting an imaginary stash house house from a real robbery crew. That real robbery crew…
TASHIMA: Which in this case, it’s a crew that’s put together by the government…