United States v. Black

There is an extremely high standard required to demonstrate the facts underlying an arrest and prosecution are so extreme as “to violate fundamental fairness” or are “so grossly shocking as to violate the universal sense of justice” and the court will decide on a case by case basis using the following factors: (1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

Defendants Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons were convicted of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of the drug trafficking offense. They were arrested as part of a reverse sting operation set up by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). An ATF undercover agent recruited the defendants to rob a fictional cocaine stash house, they agreed, and they were arrested on their way to the house with armed weapons. Defendants moved to dismiss, arguing that the fake robbery was from outrageous government conduct. The district court denied the motions, concluding that on balance, the government acted reasonably and the conduct was not “so egregious as to shock the universal sense of justice.” Defendants contended the government was guilty of sentencing entrapment because the fictional amount of cocaine ensured a mandatory minimum of ten years, but the district court was not persuaded. Outrageous government conduct occurs when the actions of officers or informants are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Factors used to determine whether the government’s conduct was outrageous include: (1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue. The panel held that the conduct was not “so grossly shocking and so outrageous as to violate the universal sense of justice.” The panel also rejected the sentencing entrapment arguments. AFFIRMED.