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The federal government's "reverse sting" operation on five defendants was not entrapment or a violation of due process, the Fifth Circuit held on Monday, in an unpublished decision.
The defendants' unlucky story began when the group met with a disgruntled cocaine trafficker, Richard Zayas. Zayas was looking for help in robbing a stash house and the crew was happy to provide it.
Even the Best Laid Plans...
The group made extensive plans on how to conduct the robbery. They would get in by dressing as cops, tie up the occupants, including Zayas, and sell the cocaine as their own.
When they gathered together to do the deed, they were arrested by the actual cops. There was no stash house and Zayas was not a disloyal drug courier, but a federal agent. The entire plan had been a "reverse sting." The five were convicted of attempted possession of cocaine and the use of a firearm during a drug trafficking crime, as well as conspiracy to commit both those crimes.
Outrageous Pot, Meet Outrageous Kettle
On appeal, they moved to dismiss the indictment due to the "outrageous conduct" of the government in arranging the reverse sting. Outrageous conduct by law enforcement is a violation of the constitution's guarantee of due process.
As the court noted, for government conduct to be outrageous, it must "shock the most cynical among us." If the defendant is an active and willing participant in the government's activity, then he cannot invoke the defense of outrageous conduct.
Without addressing whether the reverse sting was outrageous, the court found that all the defendants were active and willing participants in the scheme. Through many meetings, they did not express reluctance to proceed and in fact encouraged Zayas to move forward when he brought up misgivings. For similar reasons, their claim that the government entrapped them was also rejected.
Confidential Informant Can Remain Confidential
Three of the defendants also objected to the court's refusal to compel testimony from the government's confidential informant and its refusal to reveal his identity. In determining whether an informant must be revealed, courts examine three "Roviaro factors": The informant's level of activity, the helpfulness of the disclosure to the asserted defense, and the government's interest in nondisclosure. Here, the CI was barely involved, simply making the initial introductions. Therefore, his testimony would have been minimally helpful.
The Fifth Circuit went on to knock down the rest of their objections, from failure to properly explain entrapment to the jury to unreasonableness in their sentencing and insufficiency of the evidence against them. After months of planning, weeks of recorded conversations, and being caught in the act, the defendants were unable to present any successful arguments challenging their convictions.