Even Reverse Stings Hurt

It’s bad enough when a conspirator finds out that his pals have pals who are dealing in hundred kilo quantities of drugs, especially when the defendant is struggling to pay the rent and feed the kids.

But when it turns out that there were never any drugs to begin with, and it was all a reverse sting create by the government to fill a bed at Club Fed for the next 15 years, that’s brutal. But it can get worse.

The 9th Circuit considered this in United States v. Hernandez, via the  California Appellate Report by San Diego Law School prof Shaun Martin. In a variant on the typical reverse sting, an attempt to buy drugs that don’t exist from federal agents pretending to be dealers, this case involved a conspiracy to steal nonexistent drugs from a stash house. While it makes greater sense to attribute quantity of nonexistent drugs to a buyer, does that work when the scheme is to rip off a dealer?

In a unanimous decision by Judge Alfred Goodwin, joined by EDNY Senior Judge Edward Korman sitting by designation on the left coast, the court responds that it has to take a “hard look.”

But what works for fake drug sales doesn’t really work for fake drug thefts.  With a fake drug sale, it is possible for a defendant to prove the he didn’t really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying.  We can’t, however, say the same thing for fake drug thefts.  As Judge Goodwin rightly explains, “once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten.”  (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch.  Remember:  Lift with your legs, not your back.)

Who says lawprofs can’t be a bit snarky?  Bucking the trend, Martin’s discussion of 9th Circuit decisions is both interesting, funny and incisive, and no doubt makes all the other lawprofs hate him, even though it’s precisely the sort of analysis that practicing lawyers would hope that a lawprof offers.

The set up was that a fed pretending to be a courier let the Hernandez group know that the stash house held 20 to 25 kilos of cocaine, and the group decided to steal it.  Hernandez was very much part of the conspiracy, but expected to be paid for his role. He was in it for the cash, not the drugs, and the amount of drugs wasn’t relevant to his participation.

But the Sentencing Guidelines don’t see it that way, and Hernandez was sentenced based upon the pretend weight of the non-existent drugs he was conspiracy to steal. And so the court held that this scenario demanded a “hard look.”

Here’s the problem:  What’s true for Hernandez is almost certainly true for everyone else as well.  A result that makes the “hard look” the Ninth Circuit creates essentially meaningless.  Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan.  That’s equally true for pretty much everyone who joins a plan, right?  If the undercover or C.I. says “We’re going to steal 100 kilos,” and if the defendant agrees, boom.  Intent.  True for Hernandez.  True for Everyone.

To put it another way, the agent could come up with any amount he thinks he can sell, and that becomes the baseline for everybody, regardless of whether they’re in it for the drugs or driving the getaway car for $100 cash.

So, in the end, we’ve got a facially “hard look” test that, in reality, is going to be satisfied over 99% of the time.

Whether the problem here is rooted in the law of conspiracy or that sentencing has become a matter of drug weight, whether real or imagined, or both, the disparity between the conduct and its inherent culpability and the crushing punishment of 15 years for conspiracy to steal drugs that don’t exist it impossible to ignore. 

Defendant’s culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums.  The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.

So the 9th Circuit plans to take a very hard look at this before affirming the conviction and sentence. The only real thing about this case is the time Hernandez will spend in prison.

H/T Dr. Sigmund Droid

2 comments on “Even Reverse Stings Hurt

  1. Nigel Declan

    What I find troubling here is what seems to be the underlying nature of reverse stings: that the government, instead of pursuing alleged criminals for crimes that they have committed, are instead inventing potential crimes in an effort to prosecute people they deem to be “bad” (or, perhaps, IBPO (“Innocent by Presumption Only”)). This allows the officers involved to imagine any manner of crime. Why not suggest that the stash house has 1000 kilos of 17 different types of drugs? Why not give the alleged conspirators fake guns (which the soon-to-be-accused will be led to believe are real guns) “just in case” they have to defend themselves? Why not claim that there is a pretend person in the stash house who might have to be subdued and moved, creating a conspiracy to kidnap and/or murder?

    By contrast, in Canada, as of last time I checked, reverse stings were categorically rejected as inherently entrapment, on the basis that by offering to sell drugs, LEO’s are the authors of the criminal activity, in that there would be no purchasers of the (imaginary) product but for the presence and advertisement of the “dealer”. This is distinguished from regular stings, in which officers approach an individual whom they believe to be already engaged in criminal activity and for whom a market allegedly exists; to wit, they are merely taking the place of a “customer” in an existing market, rather than creating a new, sham market to induce criminal activity.

    I raise the comparison because the disparate legal treatment seems to me to reflect an apparent difference with regards to whether it is appropriate to target “criminals” not for what offenses they have already allegedly committed but for those (real or otherwise) they can be induced to commit. The latter would seem to encourage police to pursue individuals under the theory of “once a criminal, always a criminal”.

  2. SHG

    Exactly right. Predisposition precludes entrapment, and who is more predisposed than someone who has already been convicted?

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