Asked & Answered: Brad Hall on Outrageous Government Conduct

 By Steve Thorpe

Legal News
Two federal judges have ruled that sting operations designed to ensnare suspects into robbing fictitious drug stash houses were so “outrageous” that they were also unconstitutional. In one case, the judge found the charges so unfair that he threw them out even after three suspects had pled guilty. In the most recent case, U.S. District Court Judge Manuel Real declared that federal agents had “created the fictitious crime from whole cloth” and that their conduct was unconstitutional. Then he dismissed the charges and ordered all three suspect set free. 
Brad Hall is an attorney with the Federal Defender Office in Detroit. He has published articles in the Wisconsin Law Review, Journal of Criminal Law and Criminology, Drake Law Review, and several other publications, and is the principal author and editor of the SADO/CDRC Defender Habeas Book. He frequently lectures on federal criminal procedure, appeals, and habeas corpus.
Thorpe: This is far from the first case like this, but perhaps the most annoyed judge. Tell us about it. 
Hall: Well, it’s actually not that “far from” the first case like this. The doctrine of outrageous government conduct has been around since United States v. Russell, when the Supreme Court said that a court should dismiss a case in which the police conduct is “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain the conviction.” But courts have almost never invoked it, so these two recent cases are pretty remarkable, not just for their holdings but for their unusually strong language. 
In United States v. Hudson, decided in March, Judge Otis Wright found that the Government had “dream[t] up [a] fanciful scheme” involving an “arbitrary amount of drugs and illusory need for weapons and extra associates” in order to impose “a punishment which rests entirely on ATF agents’ whims.” He said, “The time has come to remind the Executive Branch that the Constitution charges it with law enforcement—not crime creation.” And in United States v. Cortez, decided May 30, Judge Manuel Real called “[t]he government’s crime . . . a lie and a falsehood,” and even suggested that he would have liked to see the ATF case agent indicted as the architect and “ringleader” of the entire fictitious crime. 
Thorpe: Tell us about “fake stash houses” and how the government has used them. How does ATF, which has nothing to do with drugs, get involved? 
Hall: In a typical fake stash house case, an undercover ATF agent or informant will pose as a disgruntled drug dealer or courier who has decided to turn on his superiors and rob the stash house from which he normally picks up drugs. The agent or informant will recruit a leader, whose job it is to assemble a crew to help take down the stash house in exchange for a piece of the action. Of course, because the stash house is fictional, the ATF can promise low risk and high reward, both to entice the recruits and to drive up the eventual sentences. In Hudson, for example, the ATF agent “paint[ed] a picture of an all-too-easy stash-house robbery,” telling the suspects “a tale of bountiful harvests of 20 to 25 kilograms of ‘pure’ cocaine being guarded by just a few individuals.” Cortez also involved 20 - 25 kilograms of imaginary cocaine, which was “guarded by two ‘older’ men.”
I assume the ATF justifies its involvement in these activities by getting firearms off the street—the crew is invariably instructed to arrive at the meet location locked and loaded. It sometimes seems like the most important performance metrics must be firearms recovered and months in prison, and these schemes have proven to be surprisingly simple way of generating both statistics. It’s like shooting fish in a barrel, but the problem is that the fish tend to be pretty little. This doesn’t look much like the police work we often see from other agencies. 
Thorpe: When might a defendant or defense attorney raise the defense of entrapment? 
Hall: Certainly an attorney should at least consider it in cases like these, where it looks like the Government might have a difficult time showing predisposition because the defendant has no history of stash house robberies. The law may be changing here, too. In a closely-watched case in the Seventh Circuit, United States v. Mayfield, a panel affirmed the conviction in spite of the trial court’s refusal to give an entrapment instruction, but Judge Richard A. Posner, an influential conservative, wrote a powerful dissent explaining why suspects are particularly susceptible to entrapment in these circumstances, and the case is now pending en banc before the entire Seventh Circuit. 
The “fake stash house” isn’t the only way that the ATF designs and escalates criminal activity in order to drive up punishments. We often see “reverse stings” in drug cases, where instead of buying actual drugs from actual drug dealers, the ATF will offer to sell imaginary drugs (at bargain prices) to anyone willing to buy them. Or sometimes the ATF will insist that a drug transaction take place in a school zone, where penalties are more severe. I once had a case in which my client, a felon, went looking to buy a 9mm handgun with cash, but the ATF instead sold him an M-16 assault rifle—and would only accept crack cocaine as payment. In all of these types of transactions, the ATF is controlling sentencing before the crime even takes place. But a traditional entrapment defense might not be feasible because the defendant was obviously predisposed to commit some sort of crime. 
Under the doctrine of “sentencing entrapment,” however, a defendant may be able to argue that although he intended to commit a crime, he was entrapped as to a particular fact (or quantity) that increases his sentencing exposure. This has traditionally been viewed as purely a sentencing argument (and not a very promising one, at least in the Sixth Circuit), but a recent case in the Ninth Circuit, United States v. Cortes, says that when sentencing facts are really elements under Apprendi, a defendant should be permitted to argue sentencing entrapment to the jury, meaning “a lack of intent or lack of capability to deal in the quantity of drugs charged.” 
Lastly, a defendant might consider a “jurisdictional entrapment” defense or motion. I once represented a client who repeatedly refused to travel to Toledo, Ohio, in order to carry out a hit on a fictional target, so the ATF agent handed him several cartons of cigarettes (manufactured outside of Michigan) and a Google Maps printout (generated using the Internet) in order to bring the conspiracy to murder charge within federal commerce clause jurisdiction. 
Courts in the past have been relatively unreceptive to the notion of sentencing entrapment (my case was resolved on other charges, mooting the issue), but in light of the growing skepticism about ATF tactics, this type of argument might find more favor in the future. 
Thorpe: How does the fake stash house tactic affect sentencing? 
Hall: Fake stash house cases and other reverse stings typically involve charges of intent or conspiracy to possess fictional drugs. Because the sentences for these charges will be based on the amount of fictional drugs that the defendants intended or conspired to possess, the ATF has immense power to dictate sentences—before any crime has even been committed. The ATF’s decisions about how much of a fictional drug to build into a case will typically expose a defendant to higher statutory mandatory minimum sentences as well as his advisory guideline ranges under the United States Sentencing Guidelines. In fact, by devising a fictional scheme that runs up a suspect’s statutory sentencing range, an ATF agent can have far more sentencing power than the federal judge who ultimately must impose the sentence. 
Thorpe: Judge Richard Posner has said that the tactic actually makes it safer to operate a real drug operation. How? 
Hall: Judge Posner can bring an economic analysis to just about any problem. In United States v. Kindle (the precursor to the Mayfield case), he says that a fake stash house sting “both eliminates one potential stash house robber . . . and deters other criminals from joining stash house robberies”—all while failing to get any real drugs off the street. He explains, “The lower a business’s costs, the lower the prices charged consumers, and so the greater the demand for illegal drugs and the more sales and consumption of them. The operators of stash houses would pay law enforcement to sting potential stash house robbers.” Put differently, fake stash house stings are not only outrageous—or, in Judge Posner’s words, “a disreputable tactic”—they are actually counterproductive in the war on drugs. 
Thorpe: Judges on the 9th Circuit Court of Appeals granted a temporary order blocking the release of Cortez, Garmon and Flores. The court will hear the Justice Department's appeal in the fall. What do you expect to see then? 
Hall: These sharply worded opinions have gotten a lot of attention already. And there is another series of criminal cases in the Northern District of Illinois in which some highly respected judges, including Chief Judge Reuben Castillo, have ordered the ATF to provide discovery regarding whether it unconstitutionally targets minorities in these operations. I believe we are seeing a pretty significant trend. 
I don’t know what to expect in the future. It is my sincere hope that, as more federal judges express their discomfort with these types of investigations and prosecutions, the ATF will reconsider its use of these practices.