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