United States v. Alex Pedrin, Jr.

Opinion by Judge W. FLETCHER; Dissent by Judge NOONAN.

OPINION

In this appeal, we again address what constitutes “outrageous government conduct” in the context of a reverse sting operation.

I. Background

For several decades, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) has conducted reverse sting operations in order to identify and apprehend people who can be enticed into robbing fictitious drug “stash houses” (houses in which drugs are “stashed”). In these “stash house stings,” an undercover agent poses as a disgruntled drug courier with knowledge about a stash house protected by armed guards and containing a large amount of cocaine. The agent suggests to targets of the reverse sting that they join forces, rob the house, and split the proceeds. Once the targets have taken steps to rob the fictional house, they are arrested and charged with conspiracy to violate federal narcotics laws.

The defendant in this case, Alex Pedrin, Jr., was the target of a stash-house sting in Arizona in August 2009. The sting was planned by ATF agent Richard Zayas, at the time a 20-year veteran of the bureau. According to Zayas, he has planned “hundreds” of stash-house stings, beginning in…

dissenting:

The undisputed and dispositive fact is that Pedrin was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him. The law is settled: “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and induce commission of a crime so that the government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 , 112 S.Ct. 1535 , 118 L.Ed.2d 174 (1992). In this case, the ATF originated the criminal design, implanted it in Pedrin’s mind and induced him to commit the crime that the government then prosecuted.

Who has the burden of proof as to the defendant’s disposition? In Jacobson , the Supreme Court provided the answer: *798 “[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.” Id. at 549 , 112 S.Ct. 1535 . The timing of the defendant’s disposition is critical: “The sole issue is whether the Government met its burden of proving that petitioner was pre disposed to violate the law before the Government…

I. Background

For several decades, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) has conducted reverse sting operations in order to identify and apprehend people who can be enticed into robbing fictitious drug “stash houses” (houses in which drugs are “stashed”). In these “stash house stings,” an undercover agent poses as a disgruntled drug courier with knowledge about a stash house protected by armed guards and containing a large amount of cocaine. The agent suggests to targets of the reverse sting that they join forces, rob the house, and split the proceeds. Once the targets have taken steps to rob the fictional house, they are arrested and charged with conspiracy to violate federal narcotics laws.

The defendant in this case, Alex Pedrin, Jr., was the target of a stash-house sting in Arizona in August 2009. The sting was planned by ATF agent Richard Zayas, at the time a 20- year veteran of the bureau. According to Zayas, he has planned “hundreds” of stash-house stings, beginning in Miami, Florida in the 1990s. See, e.g., United States v. Cortes, 757 F.3d 850, 855 (9th Cir. 2014) (as amended) (noting Zayas’s involvement); United States v. Black, 733 F.3d 294, 298 (9th…