Undercover Law Enforcement Operations

On October 23, 2013, the 9th Circuit Court of Appeals in the case of UNITED STATES vs. BLACK, #11-10036, held a reverse sting operation by the government was not so outrageous and shocking to be barred by elementary principles of due process and fairness and, therefore, affirmed the U.S. District Court conviction of multiple defendants.

In the underlying case, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used a confidential informant (CI) to obtain potential suspects to engage in a pre-planned robbery at a staged and fictitious residence as part of an ongoing sting operation. Thereafter, under the pretense of a robbery several individuals were arrested after being enticed to go to the fake stash house (a phrase used to refer to a house where weapons and drugs are hidden). One of the individuals, Cordae Black, was charged with, a jury found him guilty and he was convicted of using a loaded firearm as part of a drug trafficking offense along with conspiracy to possess cocaine with the intent to distribute. The 9th Circuit Court found the conduct of the government to be reasonable and affirmed the lower court ruling.

What is seriously problematic is the effort by the government to employ undercover operations to seduce and entice through deceit and persuasion potential suspects when there is enough criminal activity to stop through the use of clearly orthodox and universally accepted methodologies. Criminal defense attorneys often argue that law enforcement should not be permitted to induce others to engage in illegal conduct that is based upon a mere suspicion of prior criminal activity. Against this argument are court cases that have allowed law enforcement to use undercover investigations without suspicion to believe a person has already engaged in criminal activity at the time the police afford a suspect an opportunity to commit a related offense. Before it is prohibited, they maintain there must be an undue amount of coercion, threats and/or inducements made to another to break the law. It is still up to the defendant to prove he was not predisposed to commit the crime in question.

The role of defense counsel in this and other cases is to articulate and distinguish the precise facts in order to establish a truly compelling legal argument. As such, each case will rest on the exact facts and individual circumstances, and why the art of persuasion is a primary tool of a winning lawyer.

The above reported Decision can be found at the following link: https://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/23/11-10036.pdf