Team R30 - University of San Diego School of Law Appellate Moot

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Team Number: R30
Docket No. 14-1107
In the Supreme Court of the United States
October Term 2014
Malik Price; Cedrik R. Jones; and
Ben Carter,
Petitioners,
v.
UNITED STATES of America
Respondent.
.
ON PETITION FOR WRIT OF CERTIORARI
FROM THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF OF RESPONDENT
THE UNITED STATES OF AMERICA
Oral Argument Requested
i
TABLE OF CONTENTS
Table of Contents ............................................................................................................................ ii
Table of Authorities ....................................................................................................................... iv
Issues Presented ............................................................................................................................ vii
Statement of Facts ............................................................................................................................1
Summary of the Argument...............................................................................................................3
Standard of Review ..........................................................................................................................4
Argument and Authorities................................................................................................................4
I.
THE CONTENTS OF DEFENDANT CARTER’S BACKPACK SHOULD BE ADMITTED
BECAUSE DEFENDANT CARTER WAS NOT SEIZED WHEN SHOT, AGENT HOLDER
HAD PROBABLE CAUSE TO USE DEADLY FORCE, AND DISCOVERY OF THE
BACKPACK WAS NOT A DIRECT RESULT OF AGENT HOLDER’S USE OF FORCE. ......4
A. Defendant Carter Was Not Seized When Agent Holder Shot Him. ................................................5
B. Agent Holder Had Probable Cause To Use Deadly Force Against Defendant Carter Because He
Had An Objectively Reasonable Belief That Carter Posed A Deadly Threat Or Was Involved In
The Commission Of An Inherently Dangerous Crime. ...................................................................8
C. The Exclusionary Rule Should Not Be Applied Because The Discovery Of Defendant Carter’s
Backpack Is Not Sufficiently Causally Related To The Gunshot..................................................12
D. The Court Should Reject The Exclusionary Rule Because It Does Not Deter Police Misconduct,
Thwarts The Interests Of Justice, And Endangers The Public. .....................................................14
II.
POLICE CONDUCT RESPECTED THE DEFENDANTS’ DUE PROCESS RIGHTS .............15
A. ATF Conduct Comported With Due Process Because It Was Not Coercive. ...............................17
1. The Coercion Test is Preferable to the Overinvolvement Test. ...................................17
i. The Coercion Test Is More Consistent with this Court’s Precedent...................18
ii
ii. The Coercion Test Protects Entrapped Innocents And The Public. ...................19
2. ATF Conduct In This Case Did Not Constitute Coercion. ..........................................20
B. ATF Conduct Comported with Due Process Under the Overinvolvement Test. ...........................20
1. The Investigative Targets Themselves as Accomplished Criminals. ..........................21
2. The Investigative Targets Actively Participated In All Stages of the Robbery. ..........22
3. Government Involvement In The Robbery Was Minimal. ..........................................22
4. A Reverse Sting Operation Was Necessary To Protect Public Safety. ........................23
C. Defendants May Not Assert Outrageous Government Conduct Because They Were Active
Participants In The Crimes For Which They Were Charged. ........................................................24
Conclusion and Prayer ...................................................................................................................25
iii
TABLE OF AUTHORITIES
CONSTITUTIONS AND STATUTES
U.S.C.A. Const. Amend. IV ........................................................................................................... 5
U.S.C.A. Const. Amend. V ............................................................................................................16
UNITED STATES SUPREME COURT CASES
Brendlin v. California, 551 U.S. 249 (2007) .......................................................................... 5, 6, 7
Brinegar v. U.S., 338 U.S. 160 (1949)............................................................................................ 9
Brower v. County of Inyo, 489 U.S. 593 (1989) ......................................................................... 4, 6
Brown v. Plata, 131 S. Ct. 1910 (2011) .......................................................................................... 4
California v. Hodari D. 499 U.S. 621 (1991) ......................................................................... 5, 6, 7
Carroll v. United States, 267 U.S. 132 (1925)................................................................................ 8
County of Sacramento v. Lewis, 523 U.S. 833 (1998) ............................................................ 4, 5, 6
Elkins v. U.S., 364 U.S. 206 (1960) .............................................................................................. 15
Graham v. Connor, 490 U.S. 386 (1989) .............................................................................. passim
Hampton v. United States, 425 U.S. 484 (1976)..................................................................... 18, 19
Hudson v. Michigan, 547 U.S. 586 (2006) ............................................................................ passim
Irvine v. California, 347 U.S. 128 (1954) ............................................................................... 17, 18
Nix v. Williams, 467 U.S. 431 (1984) ..................................................................................... 13, 14
Rochin v. California, 342 U.S. 165 (1952) ................................................................................... 18
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) ............................................ 13, 14
Tennessee v. Garner, 471 U.S. 1 (1985) ................................................................................... 8, 10
Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................................ 5, 9
U.S. v. Calandra, 414 U.S. 338 (1974) ......................................................................................... 15
iv
U.S. v. Ceccolini, 435, U.S. 268 (1978)) ...................................................................................... 15
Union Pac. R. Co. v. Botsford, 141 U.S. 250 (1891) ...................................................................... 5
United States v. Leon, 468 U.S. 897 (1984).................................................................................. 14
United States v. Russell, 411 U.S. 423 (1973) ....................................................................... passim
Wong Sun v. U.S., 371 U.S. 471 (1963) .................................................................................... 8, 12
FEDERAL CIRCUIT COURT OF APPEALS CASES
Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010) ....................................................................... 7
Cameron v. City of Pontiac, 813 F.2d 782 (6th Cir. 1987)............................................................. 7
Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003). ....................................................................... 6
Greene v. United States, 454 F.2d 783 (9th Cir. 1971) ................................................................ 16
Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir. 1987)............................................. 9, 10, 11, 12
Terrell v. Smith, 668 F.3d 1244 (11th Cir. 2012) ..................................................................... 9, 11
United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) ................................................. 16, 17, 20
United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) ................................................................. 17
United States v. Arteaga, 807 F.2d 424 (5th Cir. 1986) ............................................................... 24
United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) ............................................................ 22
United States v. Beverly, 723 F.2d 11 (3d Cir. 1983) ................................................................... 16
United States v. Black, 733 F.3d 294 (9th Cir. 2013) ............................................................ passim
United States v. Bradley, 196 F.3d 762 (7th Cir. 1999).................................................................. 7
United States v. Bradley, 820 F.2d 3 (1st Cir. 1987) .................................................................... 24
United States v. Chin, 934 F.2d 393 (2d Cir. 1991)...................................................................... 16
United States v. Citro, 842 F.2d 1149 (9th Cir. 1988) .................................................................. 23
v
United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013). .............................................................. 17
United States v. Emmert, 829 F.2d 805 (9th Cir. 1987)................................................................ 24
United States v. Haas, 141 F.3d 1181 (9th Cir. 1998) .................................................................. 16
United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994) ............................................................. 7
United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983) ................................................... 17, 19, 20
United States v. McKissick, 204 F.3d 1282 (10th Cir. 2000).................................................... 4, 16
United States v. Santana, 6 F.3d 1, (1st Cir. 1993)....................................................................... 17
United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ................................................................... 16
United States v. Williams, 547 F.3d 1187 (9th Cir. 2008). ..................................................... 21, 22
United States v. Yater, 756 F.2d 1058 (5th Cir. 1985)............................................................ 24, 25
United States v. Lacey, 86 F.3d 956 (10th Cir. 1996)................................................................... 15
FEDERAL DISTRICT COURT CASES
U.S. v. Elmore, 692 F. Supp. 2d 915 (E.D. Tenn. 2010) ........................................................ 13, 14
STATE SUPREME COURT CASES
People v. Defore, 150 N.E. 585 (N.Y. 1926) ................................................................................ 15
OTHER AUTHORITIES
Jessica A. Roth, The Anomaly of Entrapment, 91 WASH. U. L. REV. 979, 1026 n. 263 (2014) .. 17,
18
Wigmore, Evidence (3d. Ed. 1940) .............................................................................................. 15
vi
ISSUES PRESENTED
1) The contents of Defendant Carter’s backpack should be admitted because Defendant Carter
was not seized by Agent Holder’s gunshot because he escaped, Agent Holder had probable
cause to use deadly force, and the discovery of the backpack was not sufficiently causally
related to alleged police misconduct to warrant application of the exclusionary rule. Even if
the court finds police misconduct, the contents of the backpack should not be suppressed
because Defendant Carter’s Fourth Amendment interests would not be served by excluding
the evidence, and the exclusionary rule should be abandoned in any case.
2) Police conduct was permissible under the Due Process Clause of the Fifth Amendment
because police conduct is not outrageous absent physical or psychological coercion, and the
police did not employ coercion to induce the participation of the Defendants. In the
alternative, police conduct in this case respected the Due Process rights of the Defendants
even if reviewed for “overinvolvement” under a totality of circumstances test. Finally, the
Defendants should be prohibited from asserting the outrageous government conduct defense
because they were active participants in the crimes for which they were charged.
vii
STATEMENT OF FACTS
Beginning in May 2009, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
conducted reverse-sting operations in Green Ridge, Apate to try to eliminate the rampant violent
home robberies and drug related crimes. R. at 2-3. Reverse-sting operations are safer and more
effective than the available alternatives because they avoid innocent people being put in harm’s
way. Id. In such operations, the ATF would use undercover agents to set up a fictitious crime to
catch criminals in the act. Id. ATF operations of this kind have been very successful, imprisoning
more than 1,000 people in twenty-two states in the last five years, and drastically reducing
violent crime rates in major cities including Green Ridge. R. at 3.
During one such operation in Green Ridge, the ATF employed Special Agent Antonio Miller
and a confidential informant (“CI”) to go undercover to set up a robbery at a stash house. R. at 4.
The CI attended a block party in March 2013 where he pitched the robbery plan to Malik Price
(“M. Price”) and Terrance Price (“T. Price”). R. at 4. T. Price eagerly agreed to put together a
crew, and the CI agreed to set up a meeting between T. Price and Agent Miller. R. at 5. During
the next month, Agent Miller and the CI met with T. Price and two other men, Cedrick R. Jones
(“Defendant Jones”) and DeAndre Ingram (“Ingram”) to plan the robbery. R. at 5. T. Price,
Jones, and Ingram not only actively participated in planning the robbery, but boasted of their past
crimes to Agent Miller and the CI to prove their criminal expertise. R. at 37-43. Moreover, when
Agent Miller expressed hesitation in moving forward with the plan, the investigative targets
insisted on following through with it. R. at 40.
On April 4, 2013, Miller and his recruits went to the “stash house” to commit the robbery. R.
at 6. ATF agents attempted to arrest the men, but T. Price opened fire on the officers, hitting and
paralyzing ATF Special Agent Sarah Nelson. Id. Ingram and Defendants M. Price and Jones
1
attempted to escape, but crashed the van after a high speed chase through the neighborhood. R. at
6-7. Ingram was killed in the crash, but ATF was able to arrest Defendants M. Price and Jones
and recover a loaded gun and other evidence from the van. R. at 7.
A few minutes later, Special Agents Bradley Holder and Brett Martin, who were at the scene,
were sent to investigate an anonymous tip reporting two men loitering near the stash house in
hoodies concealing their faces. R. at 7. When the agents approached the men they immediately
fled, but one pulled a gun from his pocket. Id. When ordered to drop the weapon, the man
lowered the gun in the direction of the officers. R. at 7-8. Agent Holder was forced to shoot. R. at
8. While Martin radioed for back up, Agent Holder then pursued the other man, until he also
turned toward Agent Holder and reached into his pocket, causing Agent Holder to shoot him as
well. Id. Agent Holder’s gunshot wounded the man, Ben Carter (“Defendant Carter”), but
Defendant Carter successfully fled in his vehicle. Id.
Hours later, a local police officer discovered the getaway car abandoned in a roadside ditch.
R. at 8. The officer went to investigate and saw, through the open driver’s side door, that the car
was drenched in blood. Id. He discovered Defendant Carter’s backpack in the back seat. Id.
On April 24, 2013, a Grand Jury indicted the Defendants for violations of several federal
laws, which carry a mandatory sentence of at least 15 years in prison. R. at 9. The Defendants
moved to dismiss the indictment under the Fifth Amendment, and Carter moved to suppress the
contents of the backpack under the Fourth Amendment. Id. The District Court suppressed the
contents of the backpack, finding that Defendant Carter’s Fourth Amendment rights were
violated. R. at 23. The court also dismissed the indictment under the Fifth Amendment. Id. The
Thirteenth Circuit reversed and remanded. R. at 31. The Defendants appealed the Thirteenth
Circuit’s ruling; this Court granted certiorari on May 13, 2014. R. at 32.
2
SUMMARY OF THE ARGUMENT
The Thirteenth Circuit correctly held (1) that Defendant Carter’s backpack was not the
product of an unreasonable search and seizure and that its contents are therefore admissible at
trial and (2) that government involvement in the reverse sting operation was not “outrageous
government conduct” violating the Fifth Amendment’s due process guarantee.
The Thirteenth Circuit’s decision with respect to the backpack should be affirmed for three
reasons, each of which is independently sufficient to affirm. First, Defendant Carter was not
“seized” when shot because Agent Holder never gained the required control over him. Second,
even if Defendant Carter was seized when shot, such seizure was reasonable because Agent
Holder had probable cause to use deadly force because of his objectively reasonable beliefs that
Defendant Carter (1) posed a deadly threat, and (2) had committed a violent felony. Third, even
if the seizure of Defendant Carter was unreasonable, the discovery of his backpack was too
attenuated from such seizure for admission of the contents of the backpack to be barred.
The Thirteenth Circuit’s decision that ATF conduct complied with due process should be
affirmed for two reasons, either of which would be sufficient to resolve the case in favor of the
United States. First, the Court should resolve the circuit split on the question of how to measure
outrageous government conduct in favor of a test requiring that a defendant prove government
coercion. Under that test, government conduct comported with due process. Second, the United
States prevails even under the alternative test, in which government “overinvolvement” in a sting
or reverse sting is evaluated based on the totality of the circumstances. Finally, the United States
prevails because the Defendants, as active participants in the crimes for which they have been
charged, are not entitled to the protection of the outrageous government conduct defense.
3
STANDARD OF REVIEW
The Court reviews lower court decisions regarding constitutional criminal procedure with a
bifurcated standard, deferring to the factual determinations of the trial court unless these are
clearly erroneous, but reviewing the legal determinations of the courts below de novo. See Brown
v. Plata, 131 S. Ct. 1910, 1929 (2011), see also United States v. McKissick, 204 F.3d 1282, 1294
(10th Cir. 2000) (referring to appellate courts generally).
ARGUMENT AND AUTHORITIES
I. THE CONTENTS OF DEFENDANT CARTER’S BACKPACK SHOULD BE ADMITTED
BECAUSE DEFENDANT CARTER WAS NOT SEIZED WHEN SHOT, AGENT
HOLDER HAD PROBABLE CAUSE TO USE DEADLY FORCE, AND DISCOVERY OF
THE BACKPACK WAS NOT A DIRECT RESULT OF AGENT HOLDER’S USE OF
FORCE.
The contents of Defendant Carter’s backpack should be admitted, and the Thirteenth Circuit
affirmed, for three independently sufficient reasons. Defendant Carter was not seized under the
Fourth Amendment when he was shot by Agent Holder because Agent Holder’s use of force was
merely an attempted seizure. County of Sacramento v. Lewis, 523 U.S. 833, 844-845 (1998).
Further, a seizure does not occur where the suspect does not submit or where the officer does not
bring the suspect within his control. Brower v. County of Inyo, 489 U.S. 593, 596 (1989).
Second, even if the Court holds that the gunshot represented a seizure, such seizure was not
unreasonable because Agent Holder had probable cause to use deadly force against Defendant
Carter in that he had an objectively reasonable belief that Defendant Carter posed a deadly threat
to the public and that Defendant Carter had committed an inherently dangerous crime. Graham v.
Connor, 490 U.S. 386, 395-396 (1989).
Finally, even if the Court finds that the gunshot constituted an unreasonable seizure, the
discovery of the backpack was too attenuated from such seizure to trigger the exclusionary rule.
Evidence obtained through the exploitation of police misconduct may only be excluded where
4
the alleged illegal conduct is (1) directly related to the discovery of the evidence and (2) the
constitutional right that has been violated would be served by suppression of the evidence.
Hudson v. Michigan, 547 U.S. 586, 593 (2006). Neither is true in the case at bar. Because there
was no police misconduct sufficient to trigger the exclusionary rule, the backpack’s contents
should not be suppressed and the Thirteenth Circuit should be affirmed.
A. Defendant Carter Was Not Seized When Agent Holder Shot Him.
Agent Holder did not “seize” Defendant Carter because the gun shot was an attempted
seizure and did not prevent Defendant Carter from fleeing. The Fourth Amendment protects “the
right of the people to be secure…against unreasonable searches and seizures.” U.S.C.A. Const.
Amend. IV. While “[n]o right is held more sacred,” the Fourth Amendment forbids only
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9 (1968) (citing Union Pac. R.
Co. v. Botsford, 141 U.S. 250, 251 (1891)).
This Court has made clear that a seizure has occurred when the police use force or a show of
authority to terminate or restrain a person’s freedom of movement. Brendlin v. California, 551
U.S. 249, 254 (2007). Where force does not immediately bring a person within the control of the
police, a person is not seized for purposes of the Fourth Amendment if he does not yield to
police control; if a person continues to flee after a show of authority or use of force, there has
been no seizure.1 California v. Hodari D. 499 U.S. 621, 625-626 (1991).
If an officer unsuccessfully uses physical force to attempt to stop a suspect, the initial
physical force is not a seizure; the subsequent physical force that makes the suspect yield is a
seizure. Id. Thus, an attempted seizure is not a seizure at all. Lewis, 523 U.S. at 844-845. This is
1
This Court treats an unsuccessful show of authority and an unsuccessful application of force as essentially the
same. Hodari, 499 U.S. at 626 (“The narrow question before us is whether, with respect to a show of authority as
with respect to application of force, a seizure occurs even though the suspect does not yield. We hold that it does
not.) (emphasis added).
5
consistent with this Court’s holding that seizure requires “an intentional acquisition of physical
control.” Brower, 489 U.S. at 596. Police action does not constitute a seizure absent both
acquisition of and control over the suspect. Lewis, 523 U.S. at 844-845; Brower, 489 U.S. at 596.
This Court’s decision in Hodari has been incorrectly cited for the proposition that an attempted
seizure is a seizure nonetheless. Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003). The
Eleventh Circuit inexplicably found that a fleeing suspect was seized by a gun shot because “in
running away he submitted by retreating,” even though the suspect was apprehended later when
he reached his house. Id. However, in the Hodari case, the Court considered whether a show of
authority constituted a seizure if the arrestee continued to flee, and held that no seizure had
occurred until the officer tackled and restrained the arrestee, and that there was no seizure during
the intervening chase. Hodari, 499 U.S. at 629.
The Eleventh Circuit relied on dicta that “[T]he word ‘seizure’ readily bears the meaning of a
laying on of hands or application of physical force to restrain movement, even when it is
ultimately unsuccessful.” Id. at 626. However, the Court was explaining “seizure” in a colloquial
context, beyond the scope of the Fourth Amendment. Id. In fact, a paragraph earlier, the Court
held that with respect to a show of authority, as well as with respect to application of physical
force, a seizure does not occur if the subject does not yield. Id. The Court explained that its
discussion of attempted seizures in the common law was to explain the meaning of a seizure, but
that “neither usage nor common-law tradition makes an attempted seizure a seizure.” Hodari,
499 U.S. at n.2.
This Court reaffirmed Hodari in Brendlin v. California, reiterating that a seizure occurs when
an officer terminates or restrains a person’s movement. Brendlin, 551 U.S. at 254. In Brendlin,
this Court held that no seizure within the meaning of the Fourth Amendment occurs absent
6
submission of the seized; otherwise, there is only an attempted seizure. Id. (citing Hodari, 499
U.S. at 626).
Under a set of facts similar to those in the case at bar, the Tenth Circuit found that a suspect
was not seized when an officer attempted to prevent his escape by shooting him. Brooks v.
Gaenzle, 614 F.3d 1213, 1224 (10th Cir. 2010). While the officer certainly intended to seize the
suspect, the gun shot did not “terminate [the suspect’s] movement or otherwise cause the
government to have physical control over him,” because the suspect was able to climb a fence
and evade arrest for three days after he was shot.2 Id.
It is clear, therefore, that in the present case Carter was not seized when Agent Holder shot
him, because Carter did not submit and was not brought within Agent Holder’s control. See
Brendlin, 551 U.S. at 254; see also Brooks, 614 F.3d at 1224. Just as the suspect in Cameron fled
over the top of a fence after officers fired their weapons in a show of authority, Carter “elected to
flee, not to be restrained.” See Cameron, 813 F.2d at 785. Carter was not restrained, slowed or
stopped by the gunshot, and was able to get into a car and escape. See id; see also Brooks, 614
F.3d at 1224; see also R. at 8. As in Hodari, there was no seizure during Carter’s flight. See
Hodari, 499 U.S. at 626. Agent Holder’s gunshot was merely an attempted seizure, and not a
seizure under the Fourth Amendment. See id. Because Carter was not seized, there was no
violation of his Fourth Amendment rights to warrant the application of the exclusionary rule.
Thus, the Thirteenth Circuit should be affirmed.
2
The Tenth Circuit is not alone in its view, as it notes in Brooks. See Brooks, 614 F.3d at 12231224 (citing United States v. Bradley, 196 F.3d 762, 768 (7th Cir. 1999) (fleeing individual must
cease attempting to escape due to either a show of authority or use of force); United States v.
Hernandez, 27 F.3d 1403, 1405, 1406-07 (9th Cir. 1994) (when officer grabbed suspect but
suspect struggled and fled, suspect “was not seized because he never submitted to authority, nor
was…subdued”); Cameron v. City of Pontiac, 813 F.2d 782, 785 (6th Cir. 1987) (use of deadly
force alone does not constitute a seizure)).
7
B. Agent Holder Had Probable Cause To Use Deadly Force Against Defendant Carter
Because He Had An Objectively Reasonable Belief That Carter Posed A Deadly Threat
Or Was Involved In The Commission Of An Inherently Dangerous Crime.
Even if the Court finds that Defendant Carter was seized, Agent Holder reasonably believed
that he posed a deadly threat to the public and that a felony had been committed, and therefore
had probable cause to use deadly force. Probable cause for the use of deadly force is properly
analyzed under the Fourth Amendment’s reasonableness standard. Graham, 490 U.S. at 395.
“The quantum of information which constitutes probable cause…must be measured by the facts
of the particular case.” Wong Sun v. U.S., 371 U.S. 471, 479 (1963) (citing Carroll v. United
States, 267 U.S. 132, 162 (1925)). Moreover, in determining whether the use of deadly force is
reasonable, courts must carefully balance “‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental interests at
stake.” Graham, 490 U.S. at 395 (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)).
An officer has probable cause to use deadly force against a suspect if, under the totality of the
circumstances, an objectively reasonable officer standing in the shoes of the officer at the time of
the incident would have used deadly force. Id. at 396. In other words, if an officer has probable
cause to believe that the suspect poses a threat of serious physical harm—to the officer or
others—the officer may prevent the suspect’s escape with deadly force. Garner, 471 U.S. at 11.
An officer has probable cause to use deadly force when the suspect threatens an officer with a
weapon, or if the officer has an objectively reasonable belief that the suspect has committed or is
involved in a crime involving the infliction or threatened infliction of serious bodily injury or
death. Id. The analysis should also include an examination of the severity of the crime, whether
the threat to the safety of the officers or the public posed by the suspect is immediate, and
whether the suspect is actively resisting arrest or attempting to flee. Graham, 490 U.S. at 396.
8
Each case is judged from the “perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 395 (citing Terry, 392 U.S. at 20-22).
This Court recognizes that “police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Graham, 490 U.S. at 397. Further, probable cause, as its
name suggests, deals in probabilities. Brinegar v. U.S., 338 U.S. 160, 175 (1949). Probable cause
does not require enough evidence to would uphold a conviction: it is based on the balance of
probabilities presented by the facts in the moment. See id.
Demonstrating this, the Eleventh Circuit held that an officer had probable cause to use deadly
force where a suspect posed a deadly threat to officers while in his car, and the suspect did not
comply with officers’ commands to exit the car after he committed a felony. Terrell v. Smith,
668 F.3d 1244, 1252-1253 (11th Cir. 2012). The suspect intentionally struck an officer with his
car, though the court noted that even the threat of using the car as a weapon would have been
enough to give the officers probable cause. Id. at 1253. The court did concede that in some
situations an officer may be able to escape the situation unharmed, but that was a forbidden
question of hindsight; a court must view all of the facts through the eyes of the officer at the time
of the incident. Id. Thus, the court held that the officer was justified in his use of deadly force
because he had a reasonable belief that the suspect posed a deadly threat to the officers at the
scene. Id. at 1252.
The Tenth Circuit similarly found that an officer had probable cause to believe that a fleeing
suspect presented a serious physical threat to the public and to officers. Ryder v. City of Topeka,
814 F.2d 1412 at 1421 (10th Cir. 1987). In Ryder, a witness tipped off officers to an armed
robbery and confirmed that the suspects were armed in the minutes leading up to the incident
9
after receiving a phone call telling him that the suspects would be armed. Id. This belief was
found to be well-grounded, as the suspects tried to stab the officers while fleeing the scene. Id.
The court found that a jury could infer that the officer had probable cause to believe that the
suspect he pursued down a darkened alley was not only armed, but prone to violence as well. Id.
Further, after the officer commanded the suspect to halt and fired a warning shot, the suspect fled
around the corner of the building and put her hand into her pocket, which gave the officer
probable cause that he was in “an ambush situation…in which [his] life was in danger.” Id. at
1422.
An officer may also use deadly force when the officer has probable cause to believe that the
suspect is fleeing after committing an “inherently violent crime.” Ryder, 814 F.2d at 1419,
(citing Garner, 471 U.S. at 7, (holding that a police officer did not have probable cause to use
deadly force to stop an unarmed suspect from fleeing the scene of a non-violent felony)). The
officer’s life does not have to be in danger; instead, the officer may find that the suspect is
“inherently dangerous by the violent nature of the crime.” Id. In Ryder, the court did not find that
the officer had probable cause to believe that an inherently violent crime had been committed
because the crime involved was “against property,” and because the evidence pointed to the
officer’s knowledge that the crime was ultimately non-violent. Id. at 1420. The court
acknowledged that an officer’s reasonable belief that suspects are armed is a persuasive factor,
but found that it is not conclusive in establishing that a violent crime has been committed. Id.
The Tenth Circuit, however, distinguished Ryder from Garner, where the officer could
clearly see that the fleeing suspect had no gun, was reasonably sure the suspect was unarmed,
and had no reason to believe that a violent crime had been committed. Id. at 1423. The officer in
Garner had no reason to believe that the suspect was dangerous as he pursued him, and the crime
10
committed, burglary, was a non-violent felony. Ryder, 814 F.2d at 1423. In contrast, the officer
in Ryder had a reasonable belief that “the suspect he was pursuing was indeed armed and
dangerous, and that at the time of the shooting, he was in immediate fear of bodily injury.” Id.
Similarly, in the case at bar Agent Holder had probable cause to believe both that a violent
crime had been committed, and that Defendant Carter posed a threat to his life, each of which
was sufficient to justify his use of deadly force. Agent Holder was at the collision site, where one
of the suspects fired multiple shots at officers, when they received the information regarding men
loitering near the stash house. R. at 6-7. Due to his proximity to the crime scene and how long
the suspects had been there, it was reasonable for him to believe that the men were with the
suspects at the crime scene. Id. The suspects immediately fled when they saw the agents, and did
not stop when the agents commanded them to, until one man turned toward the officers with a
gun in his hand. R. at 7. This placed Agent Holder in a far graver scenario even than the officer
in Ryder, where the officer never even saw a weapon, and in a situation as grave as that of the
officer in Terrell whose life was clearly in danger. See Ryder, 814 F.2d at 1422; see also Terrell,
668 F.3d at 1252-1253. While Defendant Carter may argue that the officers were in no danger
because the weapon was only a pellet gun, the situation must be examined from the view of a
reasonable officer in the moment; a weapon pointed at an officer that appears to be real would
give any officer a reasonable belief that his life was in danger. R. at 8; see also Graham, 490
U.S. at 395; see also Terrell, 668 F.3d at 1253. Moreover, even as the suspect lowered the
weapon, he continued to point the gun at the agents. R. at 8.
Agent Holder’s reasonable belief that Defendant Carter had participated in an inherently
violent crime, as well as his fears for his safety gave him probable cause to use deadly force in
his pursuit of Defendant Carter. Like the officer in Ryder, Agent Holder reasonably believed that
11
Carter was reaching into his pocket for a weapon, and that Agent Holder was in an “ambush
situation.” Compare R. at 8 with Ryder, 814 F.2d at 1422. Agent Holder made “split-second
judgment,” and his actions must be viewed without the benefit of hindsight from the perspective
of a reasonable officer in a “tense, uncertain, and rapidly evolving” situation. See Graham, 490
U.S. at 396-397. Because Agent Holder had probable cause to use deadly force, seizure of
Carter’s backpack was reasonable. Its contents should not be suppressed and the Thirteenth
Circuit should be affirmed.
C. The Exclusionary Rule Should Not Be Applied Because The Discovery Of Defendant
Carter’s Backpack Is Not Sufficiently Causally Related To The Gunshot.
Even if the Court finds that Defendant Carter was seized when he was shot and that Officer
Holder did not have probable cause to use deadly force, Defendant Carter’s backpack should not
be suppressed because its discovery was not sufficiently causally related to the gunshot in order
to trigger the exclusionary rule. Evidence obtained through illegal police conduct is excludable
from evidence per the exclusionary rule, the goal of which is to prevent officers from illegally
collecting evidence. Wong Sun, 371 U.S. at 487. The test, however, is not whether the evidence
would not have been discovered “but for” the illegal police conduct, but whether the evidence
“was come at by exploitation of that illegality or instead by means sufficiently distinguishable to
be purged of the primary taint.” Id. at 488; Hudson, 547 U.S. at 591-592 (2006) (affirming the
test from Wong Sun). Use of the exclusionary rule is inappropriate where the alleged police
misconduct is only remotely related to discovery of the evidence, or even when the conduct and
discovery is directly connected but the constitutional right that has been violated would not be
12
served by suppression of the evidence.3 Hudson, 547 U.S. at 593.
For example, the Eastern District of Tennessee held in U.S. v. Elmore that suppression of a
handgun found during an illegal traffic stop was improper, even though the officer would not
have found the gun but for the illegal stop, because the officer did not actively seek out the gun,
but noticed it on the ground. U.S. v. Elmore, 692 F. Supp. 2d 915, 920-921 (E.D. Tenn. 2010). In
that case, evidence found inside the vehicle was properly excluded because it was found as a
direct consequence of the officer’s illegal traffic stop and deliberate search. Id. at 921. The gun,
however, was discovered outside the vehicle through the officer’s “passive observation,” and
thus was not obtained as a result of any misconduct. Id. Furthermore, the court found that the
discovery of the gun was too attenuated from the officer’s conduct, and that suppression of the
gun would not serve the suspect’s Fourth Amendment interests, namely, his personal privacy in
his vehicle and freedom of movement. Id. (citing Hudson, 547 U.S. at 593).
Nor does the exclusionary rule apply if the discovery of the evidence is made by “an
independent source,” such as another officer not connected with the alleged misconduct.
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). Nor does the rule apply if
the evidence would inevitably have been discovered by lawful means. Nix v. Williams, 467 U.S.
431, 444 (1984).
For each of these reasons, the contents of Defendant Carter’s backpack should be admitted.
First, even if this court finds Carter was unreasonably seized when shot, this act was not directly
causally related to a local officer’s later discovery of the vehicle. The officer did not “exploit”
Agent Holder’s alleged misconduct when he “stumbled upon” the wrecked vehicle in the ditch.
3
The United States would like to bring to this Court’s attention its articulation that “whether the
exclusionary sanction is appropriately imposed in a particular case is an issue separate from the
question whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.” Hudson, 547 U.S. at 591-592.
13
See Hudson, 547 U.S. at 591-592. The local officer “passively observed” the vehicle and, like
any officer in that situation, investigated the scene. See Elmore, 692 F.Supp.2d at 921. Moreover
Defendant Carter’s Fourth Amendment interests in being free from an unreasonable seizure
would not be served by suppressing a backpack found in his car hours later—any violation was
due to seizure of his person, which cannot be remedied by suppression of his property. See
Hudson, 547 U.S. 591-992; see also Elmore, 692 F.Supp.2d at 921.
Alternatively, the evidence should not be excluded because it was discovered by an
independent source, not by any agent whose conduct is in question, and because the car
containing the evidence would inevitably have been discovered. See Silverthorne, 251 U.S. at
392; see also Nix, 467 U.S. at 444. The wrecked car was visible on the side of the road with its
doors open. See R. at 8. Any passing officer would have stopped to investigate the crash site, and
the backpack would inevitably have been found as no effort had been made to conceal it. See
Nix, 467 U.S. at 444; see also R. at 8. Therefore, even if the Court finds that the gunshot “seized”
Carter and that Agent Holder did not have probable cause to use deadly force, the backpack’s
discovery is too attenuated to the alleged misconduct to apply the exclusionary rule.
D. The Court Should Reject The Exclusionary Rule Because It Does Not Deter Police
Misconduct, Thwarts The Interests Of Justice, And Endangers The Public.
Even if the Court finds that Defendant Carter was unreasonably seized when shot and that the
discovery of the backpack was a result of the exploitation of this police misconduct, the
backpack still should not be suppressed. While the goal of the exclusionary rule is to deter illegal
police conduct, it is a measure of “last resort” because it “generates ‘substantial social costs,’
which sometimes include setting the guilty free and the dangerous at large.” Hudson, 547 U.S. at
591 (quoting United States v. Leon, 468 U.S. 8897, 907 (1984)). Therefore, “the penalties
leveled upon the government, and in turn upon the public, because its officers have violated the
14
law must bear some relation to the purposes which the law is to serve.” Hudson, 547 U.S. at 593
(quoting U.S. v. Ceccolini, 435, U.S. 268, 279 (1978)).
This Court has expressed its concerns regarding the exclusionary rule, “reject[ing]
indiscriminate application of the rule,” and stating that it is applicable only where its ‘remedial
objectives’ are actually served.” Id. at 591. The aim is to deter police conduct, not to “redress the
injury to the privacy of the search victim.” U.S. v. Calandra, 414 U.S. 338, 347 (1974). Too
often the exclusionary rule’s purpose is twisted from deterrence to punishment. Id. The public
should not be punished by allowing “a criminal…to go free because the constable has
blundered.” Elkins v. U.S., 364 U.S. 206, 216 (1960) (quoting People v. Defore, 150 N.E. 585,
587 (N.Y. 1926)).
Even when the rule is properly applied, its deterrent effect is very much in doubt; it is not
logical to “strike at the man who breaks [the Constitution], but to let off somebody else who
broke something else.” Id. (quoting Wigmore, Evidence (3d. Ed. 1940)). Therefore, the
exclusionary rule should be eliminated in favor of policies which will actually deter police
misconduct, such as criminal penalties or contempt of court sanctions for officer misconduct,
thereby preserving the protections of the Fourth Amendment without freeing dangerous
criminals to continue to harm the public. The exclusionary rule should not be applied to suppress
the contents of Carter’s backpack and the Thirteenth Circuit should be affirmed.
II. POLICE CONDUCT RESPECTED THE DEFENDANTS’ DUE PROCESS RIGHTS.
Two defenses protect defendants charged with crimes in which government agents were also
involved. The first, classic entrapment, is a question for the jury, and as such is only available at
trial. See, e.g., United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996). As the proceedings
15
below have not yet reached trial, and as indicated by this Court’s grant of certiorari, this defense
is not at issue today. See R. at 4, 32.
The second defense is an elusive, uncertain, and rarely applied doctrine this Court has only
speculated about. It holds that sufficiently outrageous government conduct might violate the due
process guarantee of the Fifth Amendment so as to “absolutely bar” prosecution even where
criminal defendants cannot allege entrapment. Id. at 4, 31-32; see also U.S.C.A. Const. Amend.
V. Defendants bear the burden of proving that government conduct was so outrageous as to
violate due process. United States v. McKissick, 204 F.3d 1282, 1294 (10th Cir. 2000); see also
United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011). This is a “very heavy” burden,
given the deference courts afford to police investigative methods. Al Kassar, 660 F.3d at 121. To
meet this bar, the Defendants must show that the conduct in this case violated “fundamental
fairness” and was “shocking to the universal sense of justice.” United States v. Russell, 411 U.S.
423, 432 (1973). This bar is so high that only two Federal Courts of Appeal have ever found
government involvement in a criminal enterprise so outrageous as to bar prosecution, and both of
those decisions have since been disavowed by their own circuits.4
The Circuit Courts of Appeal are split with respect to the appropriate legal test for outrageous
government conduct. Compare United States v. Chin, 934 F.2d 393, 399 (2d Cir. 1991)
(requiring a showing of coercion to establish outrageous government conduct) (hereinafter the
“coercion test”) with United States v. Black, 733 F.3d 294, 304 (9th Cir. 2013) (applying a
4
See Greene v. United States, 454 F.2d 783, 787 (9th Cir. 1971); United States v. Twigg, 588
F.2d 373, 380 (3d Cir. 1978). Greene “may be an entrapment, rather than an outrageous
government conduct case” and it “predates Russell and Hampton, [and] so does not reflect the
current law of the circuit on outrageous government conduct.” United States v. Haas, 141 F.3d
1181 (9th Cir. 1998). Twigg “relied on United States v. West, which, in our view, has been
limited by Hampton v. United States[.]” United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983)
(internal citations omitted).
16
totality of circumstances test with respect to the extent of government involvement) (hereinafter
the “overinvolvement” test).5 While the United States argues that the Court should adopt the
coercion test and hold that government involvement in a criminal enterprise is only outrageous
where the government coerces the participation of investigative targets, ATF conduct in the case
at bar respected the due process rights of the Defendants under either test. Finally, the
Defendants may not assert the defense of outrageous government conduct because they were
active participants in the crimes for which they were charged.
A. ATF Conduct Comported With Due Process Because It Was Not Coercive.
Under the test followed in the D.C. and Second Circuits, government involvement in a
criminal enterprise is not outrageous unless it involves “coercion, violence or brutality to the
person.” United States v. Kelly, 707 F.2d 1460, 1476 (D.C. Cir. 1983) (quoting Irvine v.
California, 347 U.S. 128, 132-33 (1954)); see also Al Kassar, 660 F.3d at 121 (“coercion or
violation of a defendant’s person”); see also United States v. Cromitie, 727 F.3d 194, 219 (2d
Cir. 2013). Precedent and public policy considerations suggest (1) that this Court should adopt
the coercion test for outrageous government conduct, and (2) that the ATF’s conduct was not
coercive under that test.
1. The Coercion Test is Preferable to the Overinvolvement Test.
As the First Circuit and some commentators have noted, the circuit courts fall generally into
two camps with respect to the outrageous government conduct defense; those who adhere to the
coercion test, and those who follow the overinvolvement test. See United States v. Santana, 6
F.3d 1, 5 (1st Cir. 1993); Jessica A. Roth, The Anomaly of Entrapment, 91 WASH. U. L. REV.
5
This summary excludes the approach of the Sixth Circuit, which does not acknowledge the
outrageous government conduct defense in this context, viewing this Court’s discussions of it as
dicta. See United States v. Amawi, 695 F.3d 457, 483 (6th Cir. 2012).
17
979, 1026 n. 263 (2014). This Court should adopt the coercion test because it is more consistent
with its precedent than the alternative, and because it increases public safety.
i. The Coercion Test Is More Consistent with this Court’s Precedent.
The overinvolvement test has a very shaky basis in the jurisprudence of this Court. This
Court has had several opportunities to find or hold that government initiation of, aid to, or
direction of a criminal enterprise violates the due process rights of criminal defendants, but has
never done so. See e.g. Russell, 411 U.S. at 436; see also Hampton v. United States, 425 U.S.
484, 490-91 (1976). Supporters of the overinvolvement test justify their position on the basis of
an uncareful reading of Justice Powell’s concurrence in Hampton, in which he opines in a
footnote that “[p]olice overinvolvement in crime would have to reach a demonstrable level of
outrageousness before it could bar conviction.” Hampton, 425 U.S. 484 (1976).6
By contrast, the jurisprudential basis for the coercion test derives from the only hard example
the Court has ever given of outrageous government conduct. In Russell, Justice Rehnquist,
writing for the majority, pointed directly to the kind of police conduct the Court would find
outrageous by citing Rochin v. California. See Russell, 411 U.S. at 432. In Rochin the Court held
that the due process rights of a criminal defendant had been violated when police illegally
entered his home, tried to remove drug capsules from his throat, and forcibly pumped his
stomach to acquire evidence of a drug crime. Rochin v. California, 342 U.S. 165, 172 (1952).
The Court has opined that what truly distinguishes the facts of Rochin as violative of due process
is the element of coercion. See Irvine, 347 U.S. at 133.
6
This is not Powell’s only endorsement of a hypothetical “overinvolvement” metric in his
concurrence, but it is the one that Circuit Courts tend to cite. See, e.g., United States v. Diaz, 189
F.3d 1239, 1246 (10th Cir. 1999).
18
The D.C. Circuit has followed this chain of reasoning to its logical conclusion: the
outrageous government conduct defense outlined in Russell and Hampton is not available
“absent coercion, violence or brutality to the person.” Kelly, 707 F.2d at 1476 (internal
quotations omitted). This is more than merely a reasonable extrapolation. As Justice Powell
warned in Hampton, cases in which outrageous government conduct will preclude prosecution
will be rare at best. See Hampton, 425 U.S. at 495 n. 7 (J. Powell concurring). Given the Court’s
decision in Russell to point only to Rochin, and the high bar the Court meant to impose, the
Court should now clarify that the D.C. Circuit and the Second Circuit have correctly interpreted
its precedent. The question is not the degree of government involvement, but whether the nature
of such involvement coerces participation of the defendants.
ii. The Coercion Test Protects Entrapped Innocents And The Public.
The coercion test is also superior to the overinvolvement test for two public policy reasons.
First, the coercion test will protect entrapped innocents in the limited circumstances in which
superior remedies are not already available. As Justice Rehnquist pointed out in Hampton, where
the allegation is that the government has implanted the idea of a crime in an otherwise innocent
mind, the proper defense is entrapment. Hampton, 425 U.S. at 490. Moreover, where the defense
complains that government participation in criminal activities exceeds the bounds permitted for
sting operations, “the remedy lies, not in freeing the equally culpable defendant, but in
prosecuting the police under the applicable provisions of state or federal law.” Id. at 490.
Ultimately, the outrageous government conduct defense exists to protect the “unwary innocent,”
not the “unwary criminal.” Russell, 411 U.S. at 436.
Second, the coercion test avoids freeing the criminally disposed, who have actually
committed crimes, merely because the role the government played in the criminal activity
19
exceeded a certain threshold of involvement. By limiting the scope of the exception to those
whose participation has been provably coerced, the innocent will be protected, while the public
will be protected from those disposed to commit violent crimes.
2. ATF Conduct In This Case Did Not Constitute Coercion.
Should the Court adopt the coercion test, it will also find that ATF conduct in this case did not
rise to the level of coercion, and therefore was not outrageous. Under the coercion test,
government conduct will generally not be outrageous absent “the infliction of pain or physical or
psychological coercion.” Kelly, 707 F.2d at 1477. “Feigned friendship, cash inducement, and
coaching in how to commit the crime” do not meet the threshold for a finding of coercion. Al
Kassar, 660 F.3d at 121. Beyond the promise of a large take, R. at 58, the record in the case at
bar discloses no evidence of pressure to commit the crimes for which the Defendants have been
charged. Because the coercion test is the proper legal test for outrageous police conduct, and
because ATF conduct in the case at bar was not coercive, the decision of the Thirteenth Circuit
should be affirmed.
B. ATF Conduct Comported with Due Process Under the Overinvolvement Test.
Even if this Court prefers the overinvolvement test followed by the Ninth, Tenth, and other
circuits, ATF conduct in this case still respected the limits of due process. In United States v.
Black the Ninth Circuit enunciated several factors for determining, under the totality of the
circumstances, whether government involvement in a particular criminal enterprise exceeded due
process. Black, 733 F.3d at 303-04. The Thirteenth Circuit did not consider all of the Black
factors, but ultimately applied the same standard: reasonableness under the circumstances. R. at
30. The Defendants have not met “extremely high standard” for proving outrageous government
conduct under this test either. Black, 733 F.3d at 298.
20
1. The Investigative Targets Represented Themselves as Accomplished Criminals.
Individualized suspicion of investigative targets is not necessary for a reverse sting operation
to fall within the bounds of due process. See id. at 304. Nevertheless, government suspicion or
knowledge of the criminal characteristics, histories, or predispositions of defendants will weigh
in favor of the appropriateness of a reverse sting operation. See, e.g., United States v. Williams,
547 F.3d 1187, 1198 (9th Cir. 2008). Moreover, it is sufficient for such knowledge to arise in the
course of the sting operation—the criminal disposition of the defendants need not be apparent at
inception. See Black, 733 F.3d at 307-08. It is enough that the court is assured that the
investigation has ensnared the unwary criminal, without entrapping the unwary innocent. Russell,
411 U.S. at 436.
In Black, government agents did not have any knowledge of the criminal histories or
dispositions of the defendants when they were recruited for the stash house robbery, but quickly
learned that the defendants had participated in drug-related crimes. See Black, 733 F.3d at 307308. Similarly, in the case at bar, Agent Miller and the CI proceeded to set the “bait” without any
specific targets or knowledge regarding the Defendants or their compatriots. See R. at 4.
Nonetheless, once on board the investigative targets volunteered their criminal histories at nearly
every opportunity. See R. at 37 (T. Price recounts his history of drug arrests and weapons
charges, and describing the resources and experience of his group), R. at 38 (T. Price alludes to
an earlier, similar incident in February in which he or his group participated), R. at 39
(Defendant Jones indicates he has committed robberies before), R. at 42 (T. Price represents
Ingram as an accomplished robber, car thief, and murderer), R. at 43 (Ingram refers to himself as
21
a “professional” in the context of the stash house robbery).7 Any fear that the breadth of the
government’s operation could have swept up the “unwary innocent” is assuaged by the very
words of the investigative targets themselves.
2. The Investigative Targets Actively Participated In All Stages of the Robbery.
The concern of the district court that the “broad” targeting of Green Ridge might have swept
up innocent individuals, R. at 19, is wholly answered by the active participation of the
investigative targets in all stages of the planning and execution of the robbery. The willingness of
suspects to pursue and further a criminal enterprise with little or no additional government
inducement is a significant factor in determining whether government conduct has violated due
process. See Black, 733 F.3d at 308; United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.
1981).
In Black, once the undercover agent had set the bait, the defendants responded with
enthusiasm without much additional government prompting. See Black, 733 F.3d at 308. So too
in the case at bar, in which the investigative targets proposed and amended plans (R. at 39-40,
43), planned who would provide weapons, transportation, and additional support (R. at 37-38,
40, 42), and investigated the layout of the supposed stash house via Google Maps when the
undercover agent was not forthcoming with details (R. at 43).
Nor was this active participation the result of any significant government pressure or
coercion, as the district court apparently fears. R. at 20-21. Not only did Agent Miller refuse to
provide weapons, he also refused to suggest any plan, even when prompted, except to criticize
7
The district court essentially dismissed all of these claims as bluster, R. at 19, arguing that the
government should not be entitled to use unsubstantiated claims as evidence of criminal
predisposition. This contravenes not only Black, but also other cases on the subject like United
States v. Williams, in which police knowledge of the criminal history of a defendant was based
on his introduction to them as a middleman drug dealer. See Williams, 547 F.3d at 1198.
22
Defendant Jones’s proposal. R. at 38, 40. At one point, Agent Miller even threatened to cancel
the operation. R. at 40. Any reticent participants had ample opportunity to back out. If the mere
promise of a possible $500,000 was sufficient on its own to encourage these men to commit
violent crime, as the district court appears to concede (R. at 20-21) then it is hard to see how
their continued incarceration shocks the “universal sense of justice.”
3. Government Involvement In The Robbery Was Minimal.
Moreover, ATF post-initiation involvement in the robbery was minimal. Such involvement is
important in determining whether the government has “engineer[ed] and direct[ed] the criminal
enterprise from beginning to end.” United States v. Citro, 842 F.2d 1149, 1153 (9th Cir. 1988).
The district court argues that the case at bar is significantly different from that in Black. See R. at
21. To the contrary. In Black the agents provided no weapons, no material, little direction, and no
manpower. See Black, 733 F.3d at 309. So too in the case at bar. See R. at 38-40. Judge O’Neill
suggests that the offer of a getaway car and a safe house, and the provision of the address of the
stash house by Agent Miller together represent a substantial divergence from the facts in Black.
R. at 21. But the car was refused, R. at 38, and the district court does not explain why the
provision of a safe house was significant. R. at 21. Moreover, in Black the government agents did
far more than provide an address—they actually directed the investigative targets to the location.
Black, 733 F.3d at 314. If the conduct in Black did not cross the line, then neither did the conduct
in the case at bar.
4. A Reverse Sting Operation Was Necessary To Protect Public Safety.
Another factor demonstrating that the ATF’s conduct in this case fell within the boundaries
of due process is the nature of the crime the government was attempting to investigate and
prevent. This is an important consideration in outrageous conduct cases in overinvolvement
23
jurisdictions. See, e.g., United States v. Emmert, 829 F.2d 805, 812 (9th Cir. 1987) (bargaining
tactics of undercover operative judged reasonable because of the requirements of interaction with
drug criminals). Stash house robberies “are largely unreported crimes that pose a great risk of
violence in residential communities[,]” and so reverse sting operations, which prevent and
control such violence, are a good strategy for combatting them. Black, 733 F.3d at 309-10.
Moreover, the determination of tactics in a criminal investigation is ultimately for the
Executive Branch, and entrapment and the outrageous conduct defense are not intended to give
the courts a “chancellor’s foot” veto over criminal enforcement tactics they find distasteful. See
Russell, 411 U.S. at 435. The implication that the ATF’s actions in this case were motivated by,
or at least insensitive toward, racial and class considerations—an implication which pervades the
district court’s opinion (see, e.g., R. at 20-21)—is odious. The district court brushes by the
reduced levels of violence ATF’s project has achieved in a predominantly poor, racially diverse
community. See R. at 3. In so doing, the district court fails to credit the ATF’s purpose: to focus
its efforts where the crimes were happening. See R. at 57. The desire of the district court to
disastrously expand the rights of violent criminals does not trump the rights of the people of
Green Ridge to live their lives free from the threat of criminal violence.
C. Defendants May Not Assert Outrageous Government Conduct Because They Were
Active Participants In The Crimes For Which They Were Charged.
The outrageous government conduct defense “requires not only government overinvolvement
in the charged crime but a passive role by the defendant as well.” United States v. Arteaga, 807
F.2d 424, 427 (5th Cir. 1986). Defendants may not assert the outrageous government conduct
defense for crimes in which they were active participants. See United States v. Yater, 756 F.2d
1058, 1066 (5th Cir. 1985); see also United States v. Bradley, 820 F.2d 3, 7 (1st Cir. 1987).
24
In Yater, government involvement in a drug trafficking sting operation was found to fall
within the bounds of due process because the defendant had actively participated in the drug
transactions. See Yater, 756 F.2d at 1066. Similarly, in the case at bar, Defendant Jones was
deeply involved in the planning and coordination of the robbery, as well as its (abortive)
execution. See R. at 39-40, 45. Defendant M. Price was also an active participant in the robbery,
and was prepared, along with the other investigative targets, to execute the criminal plan. See R.
at 45. Finally, as the United States will show at trial, and as the evidence lawfully recovered from
Defendant Carter’s backpack demonstrates, Defendant Carter too was an active participant in
these crimes. See R. at 55. The Defendants knowingly chose to participate in a violent crime, and
both precedent and the “universal sense of justice” confirm that they should not be allowed to
escape justice because of some arbitrary quantum of government participation.
CONCLUSION AND PRAYER
Defendant Carter was not seized when shot, and if he was such seizure was reasonable
because Agent Holder had probable cause to use deadly force. Moreover, the discovery of the
backpack was sufficiently removed from any seizure so as to preclude application of the
exclusionary rule, which rule should be abandoned in any case. Finally, the ATF’s conduct in
this case, whether analyzed under the coercion test or the overinvolvement test, fell well within
the bounds of due process. The Defendants have not met their exceptionally difficult burden of
showing otherwise, and their active participation in the charged crimes prevents them from doing
so. The United States therefore requests that the Thirteenth Circuit’s decision, with respect to
both of the questions certified, be affirmed.
25
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