United States v. Cordae Black

Opinion by Judge FISHER; Dissent by Judge NOONAN.

OPINION

Defendants Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons were convicted of conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense. They were arrested as part of a reverse sting operation set up in Phoenix, Arizona by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 1 An ATF undercover agent, working with a *298 confidential informant, recruited the defendants to carry out an armed robbery of a (fictional) cocaine stash house. The defendants readily agreed, and in varying degrees participated in planning the robbery over several days. They were arrested as they were on their way to rob the supposed stash house.

Before trial, the defendants moved to dismiss the indictment, contending the fake robbery was the product of outrageous government conduct. After three days of hearings on the issue, the district court denied the motions in a thorough and thoughtful 26-page order, concluding that “[o]n balance, the government appears to have acted reasonably,” and its conduct was “plainly not so egregious as to shock the ‘universal…

dissenting:

“Lead us not into temptation” is part of a prayer familiar to many. But few, I believe, would think of this prayer as addressed to the government of the United States or would think it necessary to address the government with such a request. The present case creates a precedent and sets a framework in which such a prayer addressed to the government becomes comprehensible and probable. Today our court gives our approval to the government tempting persons in the population at large currently engaged in innocent activity and leading them into the commission of a serious crime, which the government will then prosecute.

The government of the United States paid a confidential informant (Cl) $100 a day to recruit random persons willing to rob a cocaine stash house. Brought from Miami to Phoenix by Agent Richard Zayas of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the Cl testified that he went to bars in “a bad part of town” and that he was not instructed to look for particular individuals who were already involved in an ongoing criminal operation, but simply to recruit anyone who showed an interest in his conversation.

The Cl described his modus…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10036 Plaintiff-Appellee, D.C. No. v. 2:09-cr-01040-

MHM-

CORDAE L. BLACK,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-10037 Plaintiff-Appellee, D.C. No. v. 2:09-cr-01040-

MHM-

ANGEL MAHON,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 11-10039 Plaintiff-Appellee, D.C. No. v. 2:09-cr-01040-

MHM-

KEMFORD J. ALEXANDER,

Defendant-Appellant. UNITED STATES OF AMERICA, No. 11-10077 Plaintiff-Appellee, D.C. No. v. 2:09-cr-01040-

MHM-

TERRANCE L. TIMMONS,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding

Argued and Submitted January 16, 2013—San Francisco, California

Filed October 23, 2013

Before: John T. Noonan, Jr., Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher; Dissent by Judge Noonan

UNITED STATES V. BLACK

SUMMARY*

Criminal Law

The panel affirmed…