(CN) - Federal law enforcement flirted with tyranny in rounding up residents of a poor Arizona neighborhood for a fictional stash-house robbery, two dissenting judges in the 9th Circuit said Friday.
The strong dissent
, which cites dystopian literature and several recent studies of inequality in America, came in response to the appellate court's refusal to reconsider convictions and long prison sentences handed down to Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons in 2010 after they joined an undercover agent in a plan to rob the nonexistent cocaine supply of a fake drug cartel in Phoenix.
"The government verges too close to tyranny when it sends its agents trolling through bars, tempts people to engage in criminal conduct, and locks them up for unconscionable periods of time when they fall for the scheme," Judge Stephen Reinhardt wrote. "Certainly, such tactics create a relationship between government and governed at odds with the premises of our democracy-a relationship more like that depicted in George Orwell's 1984 or Philip K. Dick's The Minority Report."
Chief Judge Alex Kozinski joined the dissent to the court's rejection of four motions for a hearing on whether the government's actions in the case had been illegally "outrageous".
The case involves a confidential informant working for Richard Zayas, an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.
To prevent violent home invasions by finding and arresting crews in advance, the agency had launched Operation Gideon.
Under the plan, the ATF paid the confidential informant $100 a day to frequent bars in "a bad part of town" and look for people who seemed to him like "bad guys."
In the summer of 2009 the informant met Shavor Simpson, aka "Bullet", at one such bar, and the plot moved forward soon after.
Simpson, who claimed to have experience in violent robberies and several felony convictions, brought in the four defendants.
Zayas posed as a disgruntled cartel employee who wanted to rob his bosses, according to briefs
in the case filed
by both sides.
After meetings with Zayas during which he encouraged the crew to obtain firearms, they were all arrested on the way to commit the robbery. Simpson would eventually testify for the government against the others.
The four defendants were eventually convicted for conspiracy to possess with intent to distribute five kg or more of cocaine and use of a firearm in furtherance of a drug-trafficking offense.
After losing on appeal in the 9th Circuit, the defendants sought an en banc hearing before an 11-judge panel.
"It is undisputed that the defendants were not involved in a continuing series of similar crimes or a criminal enterprise already in progress; that the agents did not infiltrate a criminal organization; and the agents did not approach persons already contemplating or engaged in criminal activity," attorney Tara Hoveland wrote in defendant Black's petition
for rehearing, arguing that the government's behavior in the case had gone far beyond the pale.
The 9th Circuit denied all four petitions on Friday, inspiring Reinhardt's dissent.
"What is true of the government's watching is also true of the government's sending undercover agents into certain neighborhoods to see if their inhabitants can be tempted to engage in conduct that leads them to prison," he wrote. "The Due Process Clause forbids the tactics used here not only on grounds of equality and fairness, but also because widespread use of such law enforcement practices would chill the exercise of many of our liberties.
"In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them - people who but for the government's scheme might not have ever entered the world of major felonies," Reinhardt continued. "Of course, the government also controls the (often extraordinarily long) amount of time that its targets spend in prison after reverse sting operations, as it can specify the amount of drugs involved in the fake conspiracies." (Parentheses in original.)
He added that the "the government may not engage in outrageous conduct that violates the Due Process Clause merely because it asserts that doing so will advance law enforcement goals."
"This is a familiar rule in our criminal procedure jurisprudence," Reinhardt wrote. "Our nation has spent decades engaged in a so-called 'War on Drugs' and, for just as long, has struggled mightily to combat narcotics trafficking. Nonetheless, we have never held that the difficulties of preventing narcotics crime justify or excuse constitutional violations - and we should not do so now.
"Inevitably, that logic points the way to a string of government affidavits insisting that one or another hitherto illegal tactic must be upheld as important to the achievement of law enforcement objectives," Reinhardt wrote. "Further, while reverse sting operations may sometimes be a useful tool in the police arsenal, the majority does not explain why these operations would be inadequate if confined to targets known or suspected to be involved in ongoing criminal activity."