WASHINGTON – A divided federal appeals court Wednesday let stand the convictions of four men caught in a 2009 “reverse sting” operation in Phoenix, rejecting claims that the sting amounted to “outrageous government conduct.”
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the sting by the Bureau of Alcohol, Tobacco, Firearms and Explosives – in which an undercover agent recruited the men to rob a fake drug stash house – did not “violate fundamental fairness” or “the universal sense of justice.”
But in his dissent, Judge John T. Noonan Jr. called the ATF’s actions “disgraceful.”
“The power exercised by the government is not only to orchestrate the crime, but to control and expand those guilty of it,” Noonan wrote. “I do not see how this power can be rationally exercised. No standard exists to determine the limits of the government’s discretion.”
An official with the ATF’s Phoenix field division welcomed the ruling, but attorneys for at least three of the four defendants who could be reached Wednesday said they expected to appeal.
One of those attorneys, Florence Bruemmer, said she was surprised by the decision, after a January hearing in which Noonan referred to the “imaginary” crime.
“It was taking so long to get a decision that it felt like they had to be reversing” the lower court, Bruemmer said. “So I was surprised that two of the three affirmed it.”
Cordae Black, Angel Mahon, Kemford Alexander and Terrance Timmons were among those caught up in Operation Gideon, which Phoenix ATF Special Agent Thomas Mangan said resulted in 70 arrests.
Mangan said suspects in each of the stings had “ample opportunity to back out,” and some did. But others remained committed to carrying out the robberies until minutes beforehand, when they were arrested. Those were “the worst of the worst,” he said.
The appeals panel conceded that the way the ATF initiated the reverse-sting operation “raises questions about possible overreaching.” But it said those actions did not reach the level of outrageous conduct needed to reverse the convictions.
“There is no bright line dictating when law enforcement conduct crosses the line between acceptable and outrageous,” said Judge Raymond C. Fisher, writing for the majority.
Outrageous conduct, Fisher said, would include government agents engineering and directing a “criminal enterprise from start to finish” or creating new crimes “merely for the sake of pressing criminal charges.”
It would not include infiltrating criminal organizations, approaching people involved in or “contemplating” a crime or supplying “necessary items to a conspiracy.”
“The government’s role in creating the crime of conviction was quite strong, raising concerns that it sought to manufacture a crime that would not have otherwise occurred,” Fisher wrote.
But those concerns were lessened by the fact that Black and another defendant, Shavon Simpson, had boasted about committing similar crimes and “were eager to commit the fictional stash house robbery.”
Simpson, who later testified against the others, was quoted in the ruling as telling the undercover agent, “Drugs, guns, drugs, guns, drugs, guns, guns, drugs … that’s all I been locked up for, bro.”
Despite Simpson’s and Black’s boasts, however, Noonan said none of the defendants had federal crimes on their records before the sting.
“Nothing the government knew and nothing (it) later discovered about their past showed that the defendants were ready to rob a stash house,” Noonan wrote.
The majority also agreed with the lower court’s rejection of the claim that ATF “entrapped” the defendants into committing a crime with a higher penalty than they were predisposed to commit, due to the amount of cocaine they were conspiring to take from the fictional stash house.
“What the ATF is doing is basically targeting low-level criminals for high-level crimes,” said Tara Hoveland, another attorney for the defendants.
But Mangan said ATF tactics weed out those who are not “predisposed” to the types of robberies created in the sting scenarios.
“We’re happy that the majority affirmed our techniques… it affirms that we’re doing it the right way,” Mangan said. “And we’re going to continue to do so.”