PHOENIX — A “reverse sting” operation to collar those who might be interested in robbing stash houses is “troubling” but not illegal, a federal appeals court ruled Wednesday.
In a divided decision, the three judge panel of the 9th U.S. Circuit Court of Appeals said it appears that the Bureau of Alcohol, Tobacco, Firearms and Explosives had essentially “recruited these defendants” not by infiltrating a suspected crew of home invasion robbers but instead by simply “trolling for targets” in what a confidential informant called “a bad part of town.”
“The risk inherent in targeting such a generalized population is that the government could create a criminal enterprises that would not have come into being but for the temptation of a big payday, a work of fiction spun out by government agents to persons vulnerable to such a ploy who would not otherwise have thought of doing such a robbery,” wrote Judge Raymond Fisher.
But Fisher said it appears that those caught were “eager to commit the fictional stash house robbery” and joined in the conspiracy “without any great inducement or pressure from the government.” He said while the ATF agents took the initiative of approaching the defendants and proposing the robbery, it subsequently played “a minimal role in the crime.”
None of that convinced appellate Judge John Noonan who said he fears the implications of Wednesday's ruling
“Today our court gives our approval to the government tempting persons in the population at large currently engaged in innocent activity and leading them into the commission of a serious crime, which the government will then prosecute,” he wrote in his dissent.
Noonan pointed out that the confidential informant used by ATF said he was never told by agents to look only for those who are about to commit a crime. And the informant admitted approaching people randomly at restaurants and raising the issue of a robbery — a robbery of a stash house that did not even exist.
“Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government,” Noonan wrote. He said what occurred amount to letting ATF “collect conspirators to carry out a script written by the government.”
And Noonan said since the administration will not disavow the conduct “it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case filed in federal court.”
The four arrests here from 2009 are part of Operation Gideon, an undercover ATF reverse sting operation to find and arrest crews engaging in violent robberies of drug stash houses in residential neighborhoods. ATF agents would describe a fictitious cocaine stash house to suspects, offering them the opportunity to plan and carry out an armed robbery.
ATF used a confidential informant they brought in from Miami to Phoenix specifically to assist, paying that person $100 a day.
Crew members were arrested once the plan was developed and suspects on their way. When police found loaded weapons in their vehicle, each was charged with and convicted of conspiracy with intent to possess cocaine with intent to distribute it as well as use of a firearm in furtherance of drug trafficking.
That conspiracy count, given the amount of fictitious cocaine they were supposed to be getting, carries a mandatory minimum sentence of 10 years.
Fisher acknowledged that the initiation of the reverse sting operation raises “troubling'' questions.” He said the ATF agent, who met with the suspects, invented the scenario, including the need for weapons and a crew.
“The only overt actions by the defendants involved showing up at meetings, including arriving at the parking lot with four hidden, loaded weapons and then driving to the storage warehouse where they were arrested,” Fisher wrote. But he said that, overall, the conduct of the ATF agents was not so outrageous as to make it illegal or improper.