United States v. Hullaby

The government’s use of an informant with a criminal history who chose to cooperate out of self-interest in reducing future criminal liability is not “so grossly shocking and so outrageous” as to violate a defendant’s due process rights.

Brandon Hullaby appealed numerous rulings from the District of Arizona after he was convicted of multiple cocaine and firearm charges. The Ninth Circuit granted review, de novo, only as to whether the government’s use of informant Pablo Cortina in Hullaby’s criminal investigation was outrageous conduct and therefore violated Hullaby’s due process rights. In United States v. Smith, the panel held that “[f]or a due process dismissal, the government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice” and the standard is “extremely high.” Hullaby claimed that the government’s conduct was outrageous because it chose a government informant with a serious criminal history and was only acting out of self-interest to avoid further criminal charges. The panel reasoned, as it did in United States v. Simpson, that “[i]t is unrealistic to expect law enforcement officers to ferret out criminals without help of unsavory characters.” The panel concluded that the government’s conduct in using Cortina as an informant was not outrageous. Further, the due process clause does not give the judiciary power to change “law enforcement practices of which it [does] not approve,” and such power is left “to the political branches to decide whether to regulate law enforcement conduct.” AFFIRMED.