Entrapment is as American as cherry pie, the Ninth Circuit Court of Appeals ruled Thursday.
A three judge panel overturned the dismissal of a case against two men named Antuan Duane “Rat Tone” Dunlap and Joseph Cornell “Baby Flip” Whitfield who had been charged with conspiring to rob an entirely imaginary cocaine stash house. The imaginary crime was invented by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
It is a standard technique of the Bureau to entice financially vulnerable men to participate in crimes invented by the ATF. In at least some of these stings, the ATF runs credit checks on potential entrapees to verify their financial vulnerability. Over and over, the men are offered a standard fee of $1,000 for agreeing to a few hours of low risk work. In some cases, men are unaware of what sort of illegal deal they will participate in until literally seconds before the actual crime is underway. Typically the victims of these stings are asked to provide “security” for drug deals or drug robberies. ATF agents or other undercover agents provocateur play the parts of the robbers and the robbery victims, or the drug sellers and the buyers. The ATF supplies the men to be entrapped with guns and body armor. Typically the ATF supplies tens of kilos of cocaine or methamphetamine as theatrical props. During one recent “sting “ in Las Vegas the ATF rented a private airstrip and supplied a private plane and pilot. A federal prosecutor in Los Angeles named Reema El-Amamy once described these stings as “guerilla street theater.”
There Might Go Judge Wright
In 2007, a lawyer named Andrew Carlon coined the term “The Sadistic State” to describe such entrapments. Carlon described the Sadistic State as “a state that has decided that, since its unique function is the power to punish, it must pursue punishment as an intrinsic good, independent of desert (or, indeed, of the other, more consequentialist aims of punishment), transforming itself into a punishment machine.” Undeserved punishment, Carlon argues, “reduces to sadism” and leads to a state “which wields power, most fully realized through the infliction of pain, as an end in itself, the human beings in its power merely means to that awful end.”
Last March, Judge Otis D. Wright, a black, former Los Angeles County Sheriff’s Deputy whose rulings generally favor prosecutors, seemed to have been genuinely touched by the sadism demonstrated in the entrapment of Dunlap and Whitfield and ruled that it amounted to “outrageous government conduct.” Wright wrote that a “reverse-sting operation like this one transcends the bounds of due process and makes the Government the oppressor of its people.”
Three Wise Fools
The appeals court was neither touched nor convinced as Wright had been. Judges Atsushi Wallace Tashima, William A. Fletcher and Jay Bybee ruled that the ATF entrapment did not meet “the extremely high standard necessary to dismiss an indictment for outrageous government conduct.”
The three judges also ruled that because the appeals court had been wrong before it had no choice but to continue to be wrong. “We have previously held that similar reverse-sting operations, if properly conducted, are a permissible law enforcement tactic” the three judges ruled. “While we, like the district court, question the wisdom of the government’s expanding use of fake stash house sting operations, we are bound by our court’s prior decisions holding that when such sting operations are conducted, as in this case, within the guidelines established by our precedent, they do not violate due process and cross the line into outrageous government conduct.”