Fantasy Crime League

There’s fantasy football. Why not fantasy crime?  According to the 9th Circuit’s opinion in United States v. Black, there’s nothing wrong with the idea.  The majority opinion, written by Judge Raymond Fisher,  is explained in the case summary:

The panel affirmed four defendants’ convictions and sentences for conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense, arising out of a reverse sting operation in which an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house.

The panel affirmed the district court’s denial of the defendants’ motion to dismiss for outrageous government conduct. The panel explained that although the initiation of the reverse sting operation raises questions about possible overreaching, the defendants have not met the extremely high standard of demonstrating that the facts underlying their arrest and prosecution are so extreme as to violate fundamental fairness or are so shocking as to violate the universal sense of justice.

Sounds fairly pedestrian, but for the fact that there was never a crime, a stash house or targets.  In dissent, Judge John Noonan provides the details the majority glosses over.

“Lead us not into temptation” is part of a prayer familiar to many. But few, I believe, would think of this prayer as addressed to the government of the United States or would think it necessary to address the government with such a request. The present case creates a precedent and sets a framework in which such a prayer addressed to the government becomes comprehensible and probable. 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.

ATF agents had themselves a fine CI, and it would be a shame to waste him. So they brought him from Miami to Phoenix, paid him $100 a day and instructed him to hang around in bars and see if he can find someone willing to commit a crime.  The set up was a stash house ripe for robbing.  It didn’t exist, of course, and was just a story the CI was to sell.

So the confidential informant went to bars in “a bad part of town” to make friends.

The CI selected a seedy bar as a fit place to troll and then trolled for potential defendants. After several tries, the CI was introduced to Simpson, who expressed an interest. The CI brought Simpson to [ATF Agent] Zayas, who himself was undercover, posing as a former courier of a Mexican drug ring anxious to be revenged on his former associates.

Zayas told Simpson of a stash house where once a month there was cocaine awaiting transportation. In a second meeting with Zayas twelve days later, Simpson introduced Black as a recruit to the robbery, adding that no more men would be needed. Zayas suggested Simpson would need more help, and the others agreed to one more. At a third meeting with Zayas, Simpson, and Black, three more persons were recruited.

The next day, Timmons appeared for the first time as the driver. Simpson did not show up, afraid that he was under surveillance. Zayas told the men that he had rented a warehouse to store his portion of the cocaine and asked them to follow him there. Upon reaching the warehouse, the men were arrested by federal agents. Simpson was arrested three months later.

People unfamiliar with the wily ways of the government might wonder, “isn’t there enough actual crime to address that they shouldn’t be trying to create crimes that don’t exist?” Ah, foolish child. Catching actual criminals is hard work. They can be tricky and deceptive. It’s so much easier to create the crime under controlled circumstances.

What makes this case particularly unique, though, is that the government usually has its eye on someone they want to get, already of the belief that there is a bad dude out there who needs arresting. They just need to get evidence to make it happen, and the scam is directed toward manufacturing a crime to get the bad dude off the streets.  This scenario is bad enough, given that if they don’t have evidence of a crime by their “bad dude,” maybe he’s not such a bad dude after all.

But here, the CI had no target. He went into seedy bars to find one. He may have met someone who needed money desperately to fund his kid’s heart transplant, but that wasn’t his problem. He may have found someone who, but for the chance meeting, would never commit a crime in his life, but temptation caused him to slide from law-abiding to “just this one time” with a huge score and what appeared to be little risk.

Even worse, the agents weren’t satisfied with one dupe, but created its own need to more by importuning the recruit to use his good graces to bring in more recruits.  The fiction grew only by the agent’s lies, and he probably could have kept the scam going a while longer and brought in another few defendants who would never have committed a crime but for the government’s scam.

But the 9th Circuit says that it’s cool with the creation of a wholesale fantasy, sending a rat out into the general population to see if he can get anyone, anyone at all, to bite, and then persist in the scam by drawing in as many unsuspecting people subject to temptation until the agent figures he’s got enough paperwork to do and has earned his medal.

All for a crime that only exists in the sentencing guidelines, because it never existed in real life.  And when it comes to divorcing crime from reality, there are no constraints left.  So next time you find yourself hanging around in seedy bars, and a guy with a shiny $100 bill starts chatting you up with a way to make a quick mil, get the hell out of Phoenix.

H/T Spencer Neal

23 comments on “Fantasy Crime League

  1. REvers

    There may be hope. It’s the 9th Circuit, after all, and you know how much the Supremes enjoy reversing that court.

    1. Joshua Snow Kendrick

      It is not just the 9th Circuit. The 4th and 7th Circuits have also approved these cases. I tried one a few months ago and the agent testified that there is an entire school the ATF runs to teach agents how to conduct this “sting.”

      1. SHG Post author

        The reverse sting, by itself, has been going on for a very long time. What stood out here was that there was no target, but rather a CI sent out on his own to drum up whatever business he could find. Where they usually seek to “get” somebody in particular, here they were just fishing in the general population.

        1. the other alan

          This appears to be part of a trend. Recently, an ongoing Sunrise, FL reverse sting operation was shut down after the local paper did an expose on the practice – with some asset forfeiture abuse thrown in. Here too, they were fishing for suspects, but from all over the country, not just local seedy bars.
          [Ed. Note: Link deleted per rules.]

          1. Ultraviolet admin

            I read about those as well. That one as bad as it was left the guys mostly out of Prison and wanted their cash. Scummy and horrible, but this one is just dangerous. You recruit guys to do a robbery, now maybe these guys were boyscouts led astray, maybe they were scumbags. But you have a situation where likely both sides are armed and anticipating trouble.

            I honestly think we’re lucky no one ended up dead.

            And again, I think these reverse stings, like many parts of criminal law, are something no one complains about when it’s a drug lord or Mafia don. Tell the Don there’s a truck of coke to hijack, and well, you found a way to catch him. But to actively recruit random people sounds like an evil version of the Man from U.N.C.L.E…

            1. SHG Post author

              Asset forfeiture gives rise to all sorts of mischief. Reverse stings like this are one. Another is cops stopping cars driving to, instead of from, Mexico, because they’re the ones bringing the money back. It is a horrible incentive under the “take the profit out of crime” rubric. No matter who the money goes to (and it’s usually law enforcement, at least in part), it creates compels government to engage in a great many wrongs.

            2. Ultraviolet admin

              Amen. The thing that really upsets me is how they do it, either its ‘oh give us the money and we won’t press charges’ which is little more than a shakedown, or ‘you’re under arrest and we’re taking all your money because it could of been from a crime, so good luck with a pd’.

              PD’s are good, but overworked, and critically don’t have a lot of resources for investigation. Many people get screwed because they can’t afford a lawyer of their choice or to put on a good defense, or they can’t afford the time it takes to go to trial. Ironically, the drug dealers who these laws were made to cover know about them, and thus usually have money hidden somewhere so they can pay for attorney and accept the lost money as an expense.

            3. SHG Post author

              You misunderstand how it happens in jurisdictions that are in the forfeiture industry. They get a consent search or dog hit, find assets but no drugs. There is no arrest, just a seizure and in rem forfeiture. Nothing to it. Read up on Tenaha, Texas.

              They don’t want drugs and arrests. Those are hassles. They just want the money. Sunrise might have been different, but the norm is a quick buck, nothing more.

            4. Ultraviolet admin

              I failed at expanding properly. Sunrise is by all accounts another town/county doing the quick cash grab forfeiture, albeit by reverse stings.

              I was mentioning more pre-trial asset seizure like in Kaley case now at SCOTUS, where the state seized the assets of the couple accused of gray market medical device sales which left them without a dime to get an attorney. (although that one has procedural issues beyond the seizure as well)

            5. SHG Post author

              One of the differences when you do criminal defense is that experience supplements the small handful of cases that make the big time. I’m kinda familiar with Kaley, having written about it a couple of times, but it’s a very difference situation.

              One of the things I try to do in comments is keep the focus on the subject of the post, rather than tangents. You’ve wandered a bit in the past. If you want to discuss Kaley, do it at a Kaley post. This is not a Kaley post.

  2. John Barleycorn

    Hey, rumor has it …

    $100 dollar bill has new threads.

    Nothing cynical about it. One eyebrow twords logo tomato. Hill your potatoes.

    It’s to stay legitimate even if legislated correct?

    Ok fuck your rules twice.

    Will yield until mid winter.

    Just another day. Bill Hicks is dead.

    Even his mother didn’t bake fresh bread everyday.

    You could be 17 in Cleveland pondering running away to Detroit.

    Shhh…..don’t tell anyone.

    High after 50 is starting to look like wishful thinking. I think “they” will, I think they will,


    I own part of this.

      1. John Barleycorn

        Peace and enjoy. Thanks for rolling with the trespass.

        Will check in again sometime under blankets in the year 2014.

        Looking at it everyday.

        Whatever it is don’t let go, don’t hold on.

      1. Jake DiMare

        “Upon reaching the warehouse, the men were arrested by federal agents.”

        Suppose in the warehouse a shootout ensues…And maybe in the process a couple of innocents in a nearby building catch some lead. Could it be argued, in such an instance, that the Government was the sponsor of the whole thing and therefore liable for the outcome?

  3. Mark Draughn

    This is probably a naive question, but I remember hearing that criminal conspiracy requires an overt act in furtherance of the conspiracy. That seems like a good idea — otherwise you’re just busting people for bar talk. Is that just a myth? Or does it only matter in special cases? If not, what would the overt act be in a case like this? Traveling to the warehouse? Recruiting others?

    1. SHG Post author

      Exception for drug conspiracies, no overt act needed. But here, there was an overt act. They gathered at the final meeting to go pull off the robbery. Boom.

  4. Rick Horowitz

    The most bizarre aspect — which has always been there, but is made even more bizarre with this “fishing in the general population” thing — is that one of the conspirators here is the government. They’re the shot-callers.

    In cases I handle, the shot-callers are always treated more severely.

    Here, no one even stops to think that, “Hey, the government agents are the shot-callers, without whom this conspiracy almost certainly would not have ever come to exist.”

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