Whether the government may target poor, minority neighborhoods with undercover agents to tempt residents to commit crimes that might allow them to escape poverty is “a profoundly disturbing use of government power,” an appeals judge wrote Friday.
Judge Stephen Reinhardt’s opinion came in a dissent from a 2013 decision by a three-judge appeals panel to let stand the conviction of four Arizona men, who was part of a government sting operation, Cordae Black, Terrance Timmons, Angel Mahon and Kemford Alexander.
The opinion dissents from the 9th U.S. Circuit Court of Appeals denial Friday of a full 11-judge review of the three cases.
Chief Judge Alex Kozinski joined Reinhardt in the dissent. Judge John Noonan also stated he would have granted review and he wrote the original dissent in the 2013 three-judge decision. Judges Susan Graber and Raymond Fisher wrote the 2013 majority opinion upholding the convictions.
The 9th Circuit does not release its full vote in en banc cases so the three judges were the only one who publicly dissented out of 28 judges.
The cases stem from federal prosecutors’ decision to send a paid informant to Phoenix with instructions to recruit random persons to help rob a non-existent cocaine stash house.
The informant went to bars in “a bad part of town” and looked for people who seemed to him like “bad guys.” The informant was not told to seek out people engaged in crime, according to Reinhardt. Instead he was told to troll for targets in bars offering people a great deal of money until he found Shavor Simpson, who said he was willing to join the robbery, according to Reinhardt.
In addition, the defendants were told to bring guns, thus enhancing the potential sentences if convicted.
Simpson recruited Black and the others in the prosecution that became known as the “Black cases.” Four men were convicted of conspiracy to possess cocaine and use of a firearm to further drug trafficking. Defendants argued they were entrapped by the government, which set the amount of cocaine in the fictional robbery to ensure they would receive a mandatory minimum 10 years in prison each.
“One of the most serious problems with the law enforcement tactics used in the Black cases is that they present a direct threat to the fundamental principle of racial equality,” Reinhardt wrote.
He called it “deeply disturbing” that the agent sent his informant to look for “bad guys’ in a “bad part of town,” in other words a minority neighborhood.
“These concerns of fairness and equality are heightened by the pressing threat that these sorts of extraordinary tactics post to liberty. 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,” he wrote.
The informant was paid $100 a day, according to the court.
The denial of en banc review leaves only an appeal to the U.S. Supreme Court.
Case: U.S. v. Black, No. 11-10036