United States v. Black

To meet the high standard required to demonstrate outrageous government conduct, defendants must show that 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.”

Cordae Black, Kemford Alexander, Angel Mahon, and Terrance Timmons (collectively, “Defendants”) 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 Defendants to rob a fictional cocaine stash house, and they were arrested on their way to the house with armed weapons. At trial, 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 that 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. Subsequently, Defendants were “convicted of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of the drug trafficking offense.” On appeal, the Ninth Circuit looked at factors to determine whether the government’s conduct was outrageous. The panel first found that there was no individualized suspicion about Defendants’ criminal history. Also, although the government played a large role in creating the proposed crime, Defendants bragged about their past criminal behavior, which provided reasons that they would engage in such behavior again. Additionally, the panel found no significant government coercion because the government did not pressure Defendants to engage in the robbery. Ultimately, 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 held that the district court correctly rejected the sentencing entrapment arguments. AFFIRMED.