TEAM ID #R32

______________________________________________________________________________

SUPREME COURT OF THE UNITED STATES

October Term 2014

____

Docket No. 14-1107

_____________________________

Malik Price; Cedrick R. Jones; and Ben Carter,

Petitioners,

v.

United States of America,

Respondent

_______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRTEENTH CIRCUIT

BRIEF FOR RESPONDENT

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

ISSUES PRESENTED................................................................................................................... vi

STATEMENT OF THE CASE ........................................................................................................1

SUMMARY OF THE ARGUMENT ..............................................................................................4

ARGUMENT ...................................................................................................................................6

I. PETITIONER BEN CARTER’S FOURTH AMENDMENT

RIGHTS WERE NOT VIOLATED AND THE

EXCLUSIONARY RULE DOES NOT PRECLUDE

ADMISSION OF HIS BACKPACK CONTENTS .............................................6

A. Petitioner Carter Was Not Seized By Agent Holder Because

His Freedom of Movement Was Not Restrained. ..............................................7

B. Agent Holder Had Probable Cause to Use Deadly Force

Against Petitioner Carter Because Agent Holder Perceived A

Threat of Serious Physical Harm to Himself and Others .................................11

C. The Exclusionary Rule Does Not Preclude Admission of the

Backpack Contents Because the Shooting Was Not the But-For

Cause of the Discovery of the Contents ...........................................................13

II. THE DUE PROCESS RIGHTS OF THE PETITIONERS

WERE NOT VIOLATED BECAUSE THE ACTIONS OF

THE GOVERNMENT WERE NOT OUTRAGEOUS BY ANY

APPLICABLE STANDARDS ............................................................................15

A. The Conduct of the Government Was Not Outrageous Because

the Government Acted Reasonably with Respect to Their

Reverse-Sting Operation ..................................................................................16

ii

1. The government did not manufacture the crime from

beginning to end .........................................................................................16

2. Petitioners played active roles in the charged crimes ...............................17

3. Neither physical nor psychological coercion were used by

the government ...........................................................................................18

4. The government did not furnish any valuable tangible items

to Petitioners ..............................................................................................19

5. The government’s actions were aimed at reducing the

amount of crime in Green Ridge, not at creating new

crimes .........................................................................................................21

B. Even If This Court Utilizes a Factor-Test, Such as the One

Articulated in United States v. Black, the Factors Still Weigh in

Favor of the Government .................................................................................22

1. The government’s pre-initiation contact is permissible in a

reverse-sting operation ..............................................................................22

2. The government’s post-initiation conduct was minimal in

terms of duration, nature, and necessity ....................................................23

3. The necessity of the reverse-sting is favorable to

alternatives, given the violent nature of the crime .....................................24

iii

TABLE OF AUTHORITIES

CASES

Borden v. Paul Revere Life Ins. Co., 935 F.2d 370 (1st Cir. 1993) ..............................................15

Brendlin v. California, 551 U.S. 249 (2007) ....................................................................................7

Brooks v. Gaenzle, 614 F.3d 121 (10th Cir. 2010) ......................................................................7, 9

Brower v. County of Inyo, 489 U.S. 593 (1989) .....................................................................6, 7, 8

California v. Hodari D., 499 U.S. 621 (1991) ..........................................................................6, 7, 8

Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) .........................................................................9

Davis v. United States, 131 S. Ct. 2419 (2011) .............................................................................14

Florida v. Bostick, 501 U.S. 429 (1991) ..........................................................................................7

Graham v. Connor, 490 U.S. 386 (1989) .................................................................................11, 12

Greene v. United States, 454 F.2d 783 (9th Cir. 1971) .........................................15, 17, 19, 20, 23

Hampton v. United States, 425 U.S. 484 (1976) ...........................................................................16

Hudson v. Michigan, 547 U.S. 586 (2006) ..............................................................................13, 14

Manuel v. City of Atlanta, 25 F.3d 990 (11th Cir. 1994) ..............................................................12

Mapp v. Ohio, 367 U.S. 643 (1961) ..............................................................................................14

Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008)..............................................................................9

Nardone v. United States, 308 U.S. 338 (1939).............................................................................13

Rochin v. California, 342 U.S. 165 (1952) ....................................................................................18

Scott v. Harris, 550 U.S. 372 (1997)..............................................................................................11

Segura v. United States, 468 U.S. 796 (1984) ...............................................................................13

Tennessee v. Garner, 471 U.S. 1 (1985) ........................................................................................11

Terry v. Ohio, 392 U.S. 1 (1968) .....................................................................................................7

iv

Thomas v. Durastani, 607 F.3d 655 (10th Cir. 2010). ...............................................................9, 12

United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981) ..............................................................22

United States v. Black, 733 F.3d 294 (9th Cir. 2013) ................................16, 18, 21, 22, 23, 24, 25

United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986) ................................................................16

United States v. Bonanno, 852 F.2d 434 (9th Cir. 1988)...............................................................18

United States v. Bradley, 196 F.3d 762 (7th Cir. 1999) ..................................................................9

United States v. Calandra, 414 U.S. 338 (1974) ............................................................................14

United States v. Clariot, 655 F.3d 550 (6th Cir. 2011) ..................................................................14

United States v. Emmert, 829 F.2d 805 (9th Cir. 1987) ................................................................22

United States v. Dupree, 617 F.3d 724 (3d Cir. 2010) ....................................................................6

United States v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993) ........................................................22

United States v. Gurolla, 333 F.3d 934 (9th Cir. 2003) .................................................................15

United States v. Haimowitz, 725 F.2d 1561 (11th Cir. 1984) .......................................................16

United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994) ............................................................10

United States v. Leja, 563 F.2d 244 (6th Cir. 1977) ......................................................................16

United States v. Mayer, 503 F.3d 740 (9th Cir. 2007)...................................................................22

United States v. Mazella, 768 F.2d 235 (8th Cir. 1985) ................................................................16

United States v. Mendenhall, 446 U.S. 544 (1980) .........................................................................8

United States v. Nations, 764 F.2d 1073 (5th Cir. 1985).........................................................17, 19

United States v. Place, 462 U.S. 696 (1983) ..................................................................................11

United States v. Puett, 735 F.2d 1331 (11th Cir. 1985) .................................................................20

United States v. Ramirez, 476 F.3d 1231 (11th Cir. 2007) .............................................................6

United States v. Russell, 411 U.S. 423 (1973)...............................................................................15

v

United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998) ............................................................20

United States v. Santana, 6 F.3d 1 (1st Cir. 1993) .........................................................................15

United States v. Savage, 701 F.2d 867 (11th Cir. 1983) ...............................................................15

United States v. Smith, 924 F.2d 889 (9th Cir. 1991) ...................................................................15

United States v. Sneed, 34 F.3d 1570 (10th Cir. 1994) .......................................................6, 18, 21

United States v. Tobias, 662 F.2d 381 (5th Cir. 1981) ............................................................16, 20

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ............................................15, 18, 17, 20, 24

United States v. Williams, 547 F.3d 1187 (9th Cir. 2008) ......................................................23, 25

United States v. Yater, 756 F.2d 1058 (5th Cir.1985) ...................................................................17

Weeks v. United States, 232 U.S. 383 (1914) ...............................................................................13

Wong Sun v. United States, 371 U.S. 471 (1963) .........................................................................13

OTHER AUTHORITY

U.S. CONST. amend. IV .................................................................................................................6

U.S. CONST. amend. V .................................................................................................................15

vi

ISSUES PRESENTED

I. WHETHER PETITIONER CARTER’S FOURTH AMENDMENT RIGHTS

WERE VIOLATED WHEN HE WAS SHOT BY AGENT HOLDER; WHETHER

THE DISCOVERY OF THE BACKPACK CONTENTS WERE A DIRECT

RESULT OF THE SHOOTING.

II. WHETHER THE GOVERNMENT’S REVERSE-STING OPERATION IS

CONSIDERED OUTRAGEOUS GOVERNMENT CONDUCT.

1

STATEMENT OF THE CASE

In May 2009, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) implemented

Operation Gideon to find and arrest people engaging in violent robberies of drug stash-houses in

residential neighborhoods. (R. at 2). ATF developed this reverse-sting operation as a safer

alternative to planting fake drugs. (R. at 2). ATF began Operation Gideon in Green Ridge, Apate,

in response to an increased number of shootings, kidnappings, and other criminal activity during

August 2012. (R. at 3). Over 8,000 gang members in 74 different gangs live in Green Ridge. (R.

at 3). Throughout this past year, reverse-stings in Green Ridge led to a correlative decrease in the

level of violence and kidnappings that became associated with stash house robberies. (R. at 3).

ATF hired a confidential informant (“CI”) to work with Special Agent Antonio Miller.

(R. at 4). The CI’s role was to find people willing to commit the home robbery. (R. at 4). ATF

instructed the CI to talk with individuals and to set up a meeting with Agent Miller. (R. at 4). If

Agent Miller decided the person was actually willing, then he would provide details about the

fictitious robbery, triggering the sting. (R. at 4). The CI was not instructed to look for specific

people; ATF’s goal was to decrease street crime in general, and any person who showed interest

in robbing a stash house was fair game. (R. at 4).

On March 8, 2013, the CI approached Malik Price at a party and asked if he was

interested in a big payday. (R. at 4). He said yes, but walked away when the CI pitched robbing a

stash house. (R. at 4). Ten minutes later, Terrance Price approached the CI about a robbery. (R.

at 4-5). The CI pitched putting a crew together for a robbery. (R. at 5). Unbeknownst to CI

during the block party, Terrance and Malik were brothers. (R. at 5). Terrance agreed to the

robbery, and the CI set a meeting with Agent Miller. (R. at 5).

2

Three meetings were set between the date that the CI approached Malik Price, and the

date of the robbery, which spanned approximately three and one half weeks. (R. at 4-6). During

the first meeting, Agent Miller, the CI, and Terrance Price met. (R. at 5). During the second

meeting, Terrance Price brought an additional person, Cedrick Jones. (R. at 5). Jones proposed

several ways to rob the house. (R. at 5). Agent Miller questioned their ability to carry out a

robbery, but Terrance reassured Agent Miller. (R. at 5). During the third meeting, Agent Miller

provided an address for the stash house to the robbery crew, which included Cedrick Jones. (R.

at 6). All agreed to commit the robbery. (R. at 6).

On the morning of April 4, Agent Miller, the CI, Cedrick Jones, Terrance Price, DeAndre

Ingram, and Malik Price met to commit the robbery. (R. at 6). DeAndre Ingram brought an

unmarked white van. (R. at 6). The crew spent an hour discussing the robbery plan. (R. at 6).

Agent Miller left the crew in the stopped van about 5 miles before they got to the fictitious

address. (R. at 6). Agents approached the van, threw a stun grenade, and a shootout ensued. (R.

at 6-7). ATF found empty duffel bags, and a duffel bag filled with a loaded pistol, two airsoft

guns, an oversized wrench, and a box of red tee shirts and bandanas inside the van. (R. at 7).

After the sting, local police received an anonymous tip about two “suspicious looking”

men loitering near the stash house; one man had a large black backpack and the other fidgeted

with something in his pocket. (R. at 7). ATF Agents Bradley Holder and Brett Martin, wearing

blue jackets with the words “ATF Special Agent” on the front and back, approached the men. (R.

at 7). When Agent Holder asked “what’s going on today gentlemen?” the men almost

immediately started running away from the stash house. (R. at 7). The agents were worried that

someone could get hurt, so they pursued the men on foot. (R. at 7, 59).

3

The man without the backpack stopped and turned to the agents with something pointed

in the air; he yelled, “this is a fake gun, please don’t shoot me!” (R. at 7). The gun looked very

real to Agent Holder. (R. at 59). The agents pulled out their pistols and told the man to drop the

weapon immediately. (R. at 7). The man lowered his weapon, but pointed it at the agents; Agent

Holder reacted and shot the man in the chest. (R. at 8). Even after the man fell to the ground,

Agent Holder was unaware that the man had a fake gun. (R. at 60). Agent Martin instructed

Agent Holder to continue his chase of the second man. (R. at 8).

Agent Holder continued to chase the man with the backpack, who was running in the

direction of a parked car. (R. at 8). The man did not stop, despite Agent Holder identifying

himself and instructing the man to stop. (R. at 8). The man looked over his shoulder to see Agent

Holder, and reached into his pocket to retrieve something. (R. at 8). Agent Holder had reason to

believe that the man was reaching for a gun. (R. at 60). He reacted, and shot the man three times

in an effort to stop the man from shooting the agents or innocent bystanders. (R. at 8, 60). Agent

Holder later expressed that in that moment, “the danger was right there. It was real.” (R. at 60).

The man screamed and began limping, but continued to pull the item - a car key - from

his pocket. (R. at 8). He got into the car and fled before Agent Holder could stop him. (R. at 8).

Agent Holder provided a description of the man and the car to ATF and local police; they kept a

look-out for several hours but had no sightings and received no leads. (R. at 8).

A local police officer later stumbled across the car, which had crashed in a deep drainage

ditch on the side of the road, approximately one mile away from the stash house. (R. at 8). The

driver was missing, but both front seats were bloody and blood-dried paint rags were scattered

inside of the car. (R. at 8). The officers observed a large black backpack in the backseat of the

car. (R. at 8). The contents the backpack were strewn across the floor. (R. at 8). There were two

4

plastic vodka bottles; a small canister of gasoline; a butane lighter; and plain paint rages. (R. at

8). Almost ten hours later, an ICU nurse reported that a patient matching the description of the

suspect was being prepped for surgery to remove two bullets lodged in his right leg. (R. at 9).

ATF agents arrested the suspect at the hospital after the surgery. (R. at 9).

SUMMARY OF THE ARGUMENT

When analyzing a Fourth Amendment issue, this Court first determines whether a seizure

occurred; whether the seizure was reasonable; and if the seizure was unreasonable, whether the

circumstances of the unreasonable seizure warrant suppression of evidence discovered as a result

of the seizure. A seizure does not occur when an officer’s intentional application of force fails to

interfere with a person’s freedom of movement. An officer’s use of deadly force does not

automatically result in a seizure. If a person is seized by use of deadly force, the use of deadly

force use must be justified by probable cause and reasonable under Fourth Amendment scrutiny.

Petitioner Carter was not seized when shot by Agent Holder, because Petitioner’s

freedom of movement was not restrained. Petitioner continued to flee from officers and therefore

is not protected by the Fourth Amendment. If this Court determines that Petitioner was seized

when shot, Agent Holder’s use of deadly force did not violate Petitioner’s Fourth Amendment

rights, because Agent Holder acted quickly and reasonably when he shot Petitioner in an attempt

to secure the safety of himself, his partner, and innocent bystanders.

When a Fourth Amendment violation occurs, the exclusionary rule precludes the

admission of evidence discovered as a direct result of the violation. The illegal government act

must be at least the “but-for” cause of the discovery of the evidence for the exclusionary rule to

apply. The discovery of the contents of Petitioner’s backpack was not a direct result of the

5

shooting, nor a result of Agent Holder’s effort to find the car. Thus, the “but-for” threshold is not

satisfied. Accordingly, the exclusionary rule does not apply.

Additionally, the conduct of the government was not so outrageous as to violate due

process. The standard for a finding of outrageous government conduct is extremely high. To this

date, only two circuit courts have ever reversed convictions based on this concept. This Court

has never reversed a conviction or dismissed an indictment based on outrageous government

conduct. Only in the rarest situations can this doctrine be used, and it typically involves physical

or psychological coercion. A majority of courts analyze the conduct under a totality of the

circumstances approach, and the Ninth Circuit uses an enumerated six-factor version. The Sixth

and Seventh Circuits do not recognize outrageous government conduct.

Under either applicable test, the conduct of the government does not “shock the

conscience”. The government, through Agent Miller and an experienced CI, carefully

implemented a reverse-sting operation for a stash house robbery. The CI asked one of the

Petitioner Price if he was interested in a “come-up”, but that Petitioner walked away and was not

seen again until he accompanied the robbery crew on the day of the robbery. A different person

approached the CI, and asked if he knew about any “come-ups”. Agent Miller and the CI’s roles

in the follow-up meetings were minimal; Agent Miller even warned the defendants not to go

through with the robbery because people could get shot. The robbery crew continued with the

planning of the robbery and the supplying of the getaway van and weapons. The government has

engaged in these operations many times before, and they have been useful in decreasing the

crime rate. It is better for the community that the government stage fake robberies than attempt

to catch criminals robbing real drug houses, because stash house robberies can lead to violence

and hostage-taking; however, if they do not stage these, there is no deterrence, and the rate of

6

violent robberies will probably increase. Furthermore, these investigations are well-planned

operations enacted by the executive branch of government. Overturning an indictment that does

not meet the outrageousness standard would hinder law enforcement’s ability to fight crime.

ARGUMENT

The denial of a motion to suppress is reviewed as a mixed question of law and fact.

United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007). Factual findings are

reviewed for clear error and legal conclusion are reviewed de novo. Id.; United States v. Dupree,

617 F.3d 724, 726 (3d Cir. 2010). The issue of whether a law enforcement agent's conduct is

outrageous is reviewed de novo. United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994).

I. PETITIONER BEN CARTER’S FOURTH AMENDMENT RIGHTS WERE

NOT VIOLATED AND THE EXCLUSIONARY RULE DOES NOT

PRECLUDE ADMISSION OF HIS BACKPACK CONTENTS.

The Fourth Amendment to the United States Constitution protects “[t]he right of the

people to be secure in their person, houses, papers, and effects, against unreasonable searches

and seizures, . . .” U.S. Const. amend. IV. A Fourth Amendment analysis requires a

determination of whether a seizure occurred; whether the seizure was reasonable; and, if the

seizure was not reasonable, whether the circumstances warrant suppression of the evidence.

Dupree, 617 F.3d at 730.

The language in Brower v. County of Inyo, 489 U.S. 593 (1989), and California v.

Hodari D. 499 U.S. 621 (1991), mandates that a seizure occurs when a person is stopped by

intentionally applied force. An application of that analysis reveals that Petitioner Carter was not

seized for Fourth Amendment purposes when shot by Agent Holder because the shooting did not

stop Petitioner Carter from fleeing. However, even if this Court finds that a seizure occurred, this

Court should affirm the decision of the Thirteenth Circuit because Agent Holder was justified in

7

using deadly force in his attempt to seize Petitioner Carter. The contents of Petitioner Carter’s

backpack were not discovered as a direct result of the seizure, therefore the exclusionary rule

does not preclude admission of this evidence. Accordingly, this Court should affirm.

A. Petitioner Carter Was Not Seized By Agent Holder Because His Freedom Of

Movement Was Not Restrained.

Not every encounter between a police officer and a citizen is a seizure; Fourth

Amendment scrutiny is triggered only at that pivotal moment when a seizure occurs, as defined

by the Supreme Court. Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968); Florida v. Bostick, 501 U.S.

429, 434 (1991). For Fourth Amendment purposes, a seizure occurs when an officer, “’by means

of physical force or show of authority, terminates or restrains a person’s freedom of movement

through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007)1.

The mere use of deadly force is not alone enough to form a seizure. Brooks v. Gaenzle,

614 F.3d 121, 122 (10th Cir. 2010) (citing Brower, 489 U.S. at 599). Yet, arrest, the

quintessential ‘seizure of the person’ under Fourth Amendment jurisprudence, requires the

grasping or application of physical force with lawful authority, whether or not this application of

force subdued the arrestee. Brower, 489 U.S. at 624. The finding of a seizure is precluded where

an officer merely desires termination of an individual's freedom of movement. Id. at 596-97.

The application of the word seizure to a seemingly endless list of factual variations

causes the definition to shift slightly with context, subject to the caveat that there is no

continuous seizure during the suspect’s fight. California v. Hodari D., 499 U.S. 621, 625 (1991).

In California v. Hodari D., the defendant ran away when he saw the officer wearing a jacket with

the word “Police” across the front. 499 U.S. at 623. The officer pursued the defendant, who

1 (emphasis supplied) (internal quotations omitted) (citing Florida v. Bostick, 501 U.S. 429, 434

(1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)); Brower v. County of Inyo, 489 U.S. 593,

597 (1989)).

8

turned to see the officer almost upon him and threw a small rock on the ground. Id. at 623. The

officer then tackled the defendant. Id. The defendant argued that the officer seized the defendant

when the officer made a show of authority by running towards the defendant; the defendant

moved to suppress the rock, later determined to be cocaine, as a fruit of that seizure. Id. This

Court rejected that argument, finding that even “assuming that [the officer’s] pursuit . . .

constituted a ‘show of authority,’” the defendant did not comply; therefore, the seizure did not

occur until the officer tackled the defendant. Id. at 629.

The show of authority language mirrored this Court’s previously announced objective

test: a seizure occurs when the officer’s actions would have conveyed a “show of authority” to a

reasonable person, causing the reasonable person to feel that he was not free to leave. Id. at

628(citing United States v. Mendenhall, 446 U.S. 544, 552-53 (1980)). The officer in Hodari D.

displayed a show of authority when he pursued the defendant, but this show of authority did not

result in the defendant’s stop. 499 U.S. at 625-26.

This Court held that with respect to a show of authority as with respect to application of

physical force, a seizure does not occur when the subject does not yield. Hodari D., 499 U.S. at

626. This holding is consistent with this Court’s holding in Brower v. County of Inyo, decided

just three years prior. See 489 U.S. 593. In Brower, this Court found that a seizure occurred

when a roadblock, put in place by police to stop a fleeing suspect, fatally terminated the

suspect’s movement. 499 U.S. at 599. (“We think it enough for a seizure that a person be stopped

by the very instrumentality set in motion . . . in order to achieve that result.”). However, as noted

in Hodari D., the Brower decision did not consider the possibility that a seizure occurred during

the course of a police chase, because the chase considered a show of authority, and did not stop

the suspect. Hodari D., 499 U.S. at 628 (citing Brower, 489 U.S. at 597).

9

This Court’s holding in Hodari D. does not provide Fourth Amendment protection for a

defendant who successfully evades seizure despite being injured by the officer’s show of

authority in the form of shooting the defendant. See Brooks, 614 F.3d 1213. The Eleventh

Circuit misread Hodari D. to place emphasis on the officer’s intent and the physical contact of

the bullet from his gun, rather than the actual submission by the person to the force. Carr v.

Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003) (finding a seizure where the suspect was shot

by an officer but continued to run into a nearby house). This results in a continuous seizure,

lasting from the time of contact until the time of arrest; the suspect’s fleeing is dismissed as a

simple retreat. Id. The Eighth Circuit uses the same flawed analysis. Moore v. Indehar, 514 F.3d

756 (8th Cir. 2008) (holding that the intent of the officer governs Fourth Amendment analysis).

This ignores Brower, which expressly precluded a finding of seizure where the officer merely

desired termination of an individual’s freedom of movement, 489 U.S. at 596-97, and Hodari D.,

finding that a seizure does not occur when the subject does not yield to a show of authority or

application of physical force. 499 U.S. at 626.

The correct application requires an actual restraint of freedom of movement to trigger

Fourth Amendment analysis. See Brooks, 614 F.3d 1213. The Brower language - termination of

freedom of movement through means intentionally applied - requires both the intent to control

the suspect and the actual control of the suspect. 614 F.3d at 1220. This Court explained that

Hodari D. reconciles with Brower to mandate that a seizure requires intentional acquisition of

physical control, and occurs when a person is stopped by the very instrumentality set in motion

or put in place in order to achieve that result. Brooks, 614 F.3d at 1221 (quoting Thomas v.

Durastani, 607 F.3d 655, 663 (10th Cir. 2010)); see also United States v. Bradley, 196 F.3d 762,

768 (7th Cir. 1999) (holding that a person is seized when a show of authority or a use of force . .

10

. caused the fleeing individual to stop attempting escape); United States v. Hernandez, 27 F.3d

1403, 1405-07 (9th Cir. 1994) (holding that no seizure occurs where an officer applies physical

force in an attempt to detain a suspect but such force is ineffective). In Brooks, the suspect

participated in an armed robbery then ran from responding officers. When the suspect attempted

to climb a fence, a responding officer shot him. 614 F.3d at 1215. The suspect continued to climb

over the fence and escaped in a car parked nearby, and police apprehended him three days later.

Id. The court found that because the shooting did not stop the suspect, the shooting did not

constitute a seizure. Id. at 1224-25.

Much like the suspect in Brooks, Petitioner Carter’s freedom of movement was not

terminated or restrained by the means of force intentionally applied by Agent Holder’ s shot. (R.

at 8). A finding of a seizure under these circumstances is precluded, because although Agent

Holder desired to terminate Petitioner Carter’s freedom of movement, the actual termination of

movement was never realized. Agent Holder never laid hands on Petitioner Carter to satisfy an

arrest by grasping or physical force as discussed in Hodari D.

Agent Holder made a show of authority when he pursued Petitioner Carter on foot. (R. at

8). Agent Holder also made a show of authority when Agent Holder identified himself and called

for Petitioner Carter to halt. Agent Holder fired his gun at Petitioner Carter with the intent that

his shots stop Petitioner Carter from shooting himself, Agent Brett Martin, or a bystander. (R. at

8, 60). However, like the shooting in Brooks, Agent Holder’s showings of authority, intent, and

attempts were unsuccessful. Petitioner Carter’s flee continued until hours later, when officers

arrested him at the hospital. (R. at 8-9). Petitioner Carter’s freedom of movement was not

terminated by the means intentionally applied or the intentional application of force.

11

Accordingly, this Court should hold that there was no seizure because Petitioner Carter did not

comply with that show of authority.

B. Agent Holder Had Probable Cause To Use Deadly Force Against Petitioner Carter

Because Agent Holder Perceived A Threat Of Serious Physical Harm To Himself And

Others.

An officer must have probable cause to believe a person committed a crime in order to

effectuate a seizure. Tennessee v. Garner, 471 U.S. 1, 7 (1985). This Court employs the Fourth

Amendment reasonableness standard to scrutinize an officer’s use of deadly force in a seizure or

attempted seizure. Graham v. Connor, 490 U.S. 386, 396 (1989). The reasonableness standard

requires that the totality of the circumstances reveal that the seizure was conducted in a

reasonable manner. Id. 471 U.S. at 9; Garner, 471 U.S. at 8.

This Court did not establish a “magical” on/off switch that triggers rigid preconditions

whenever an officer’s actions constitute deadly force. Scott v. Harris, 550 U.S. 372, 382 (2007)

(“[An] officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of

innocent bystanders [by forcing the fleeing suspect off the road] does not violate the Fourth

Amendment, even which it places the fleeing motorist at risk of serious injury or death.”).

Rather, this is a balancing test, weighing the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental interest at

stake. United States v. Place, 462 U.S. 696, 703 (1983). An officer’s use of deadly force to

prevent escape is not constitutionally unreasonable where the totality of the circumstances

reveals that an officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others. Garner, 471 U.S. at 11.

Rather than analyzing an officer’s use of deadly force with hindsight, the analysis must

come from the perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396. Using

12

this standard and perspective allows for the fact that police officers are often forced to make

split-second judgments in circumstances that are tense, uncertain, and rapidly evolving, about the

amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396-297; Manuel

v. City of Atlanta, 25 F.3d 990, 997 (11th Cir. 1994) (stating that reconsideration will nearly

always reveal that something different could have been done if the officer knew the future before

it occurred). Even if the officer was mistaken in his perception of the circumstances, he acted

reasonably in his use of deadly force. Thomas, 607 F.2d at 666 (holding that an officer acted

reasonably in firing shots into a fleeing car after the car hit the officer, because the officer’s

confusion as to whether the car was moving towards or away from the officer was reasonable).

This Court should affirm the decision of the Court of Appeals for the Thirteenth Circuit,

and by doing so, uphold jurisprudence deferring to officers dealing with situations in which

deadly force is necessary to protect themselves and others. An analysis of Agent Holder’s actions

through the lens of a reasonable officer on the scene reveals that Agent Holder was justified in

his use of deadly force to stop Petitioner Carter. The facts known to Agent Holder at the time

include: an armed robbery was to occur; Petitioner Carter and his accomplice fled when they saw

Agents Martin and Holder; Petitioner Carter’s accomplice waved what the agents perceived to be

a gun, then lowered it in such a way that it was pointed toward the agents; and Petitioner Carter

reached into his pocket when he saw Agent Holder behind him. (R. at 7-9). This Court must give

no weight to the hindsight knowledge that Petitioner Carter was simply looking for his car key.

Under the facts known to Agent Holder at the time, a reasonable officer would perceive a

public safety risk and a danger to himself and other responding officers that justify the use of

deadly force. Agent Holder acted with probable cause in using deadly force to stop what he

reasonably believed was deadly force to be used against him and others around him, and he used

13

a reasonable means of stopping Petitioner Carter from reaching into his pocket to retrieve a gun

and fire on the officers and bystanders. Agent Holder’s shooting was a reasonable means of

accomplishing the goal of preventing severe bodily injury to agents and bystanders. Accordingly,

this Court should affirm.

C. The Exclusionary Rule Does Not Preclude Admission Of The Backpack Contents

Because The Shooting Was Not The But-For Cause Of The Discovery Of The Contents.

If this Court determines that an unlawful seizure occurred when Agent Holder shot

Petitioner Carter, this Court should hold that the facts fail to actuate the exclusionary rule

because law enforcement’s discovery of the backpack’s contents was not a direct result of the

shooting. The exclusionary rule precludes admission of evidence that is discovered in the

violation of a defendant’s Fourth Amendment rights, Weeks v. United States, 232 U.S. 383, 398

(1914), and evidence that is considered the fruit of the unlawful action. Nardone v. United States,

308 U.S. 338, 341 (1939). Evidence obtained as a direct result of an unconstitutional seizure is

plainly subject to exclusion, and evidence obtained as an indirect result of an unconstitutional

seizure may be admissible under certain exceptions to the exclusionary rule. Wong Sun v. United

States, 371 U.S. 471, 484 (1963); Segura v. United States, 468 U.S. 796, 804 (1984). Even with

this rule, evidence should be suppressed as a last resort, and not as a first impulse. Hudson v.

Michigan, 547 U.S. 586, 591 (2006).

Evidence will not be suppressed under the fruit of the poisonous tree doctrine unless the

illegal government conduct is at least the ‘but for’ cause of the discovery of the evidence. Id. at

815 (emphasis added). Thus, the but-for causation is a threshold requirement for suppression of

evidence because suppression is not justified unless it is the produce of illegal government

activity. Id. at 815; see also Hudson, 547 U.S. at 592 (but-for causality is only a necessary, not a

14

sufficient, condition for suppression). But-for causation can even be too attenuated to justify

suppression. Hudson, 547 U.S. at 592.

This approach allows the exclusion of evidence only where the exclusionary rule’s

remedial objectives are thought most efficaciously served. Hudson, 547 U.S. at 591. These

objectives include what this Court has stated as the sole purpose of the exclusionary rule:

deterring officer misconduct. Davis v. United States, 131 S. Ct. 2419, 2426 (2011); United States

v. Calandra, 424 U.S. 338, 348 (1974); Mapp v. Ohio, 367 U.S. 643, 656 (1961). There is little to

deter if the officers' conduct is not the unattenuated causation of the evidentiary discovery.

United States v. Clariot, 655 F.3d 550, 553 (6th Cir. 2011). Thus, this Court promotes a

balancing test: for exclusion to be appropriate, the deterrence value of suppression must

outweigh its heavy costs. Davis, 131 S. Ct. at 2427.

This Court should find that the but-for threshold is not met and preclude suppression,

because the evidence discovered by the officers who found Petitioner Carter’s car in a ditch were

not discovered as a direct result of Agent Holder’s shooting of Petitioner Carter. The car and

evidence contained within the car was not discovered as a result of Agent Holder’s efforts to

identify and locate the car, as those efforts resulted in no leads. (R. at 8). Rather, a local police

officer stumbled across Petitioner Carter’s crashed car, backpack, and backpack contents. (R. at

8).

The record does not reflect that Petitioner Carter crashed his car because of the shooting.

Indeed, Petitioner Carter could have crashed his car due to careless driving in a desperate attempt

to flee the pursuing officers. Petitioner Carter survived a car accident after Agent Holder shot

him, fled from the crashed vehicle, and survived without medical attention for ten hours after

Agent Holder shot him. (R. at 8-9). The suppression of the backpack contents would not serve

15

the remedial purpose of the exclusionary clause because the evidence was not discovered as a

result of Agent Holder’s actions, and Petitioner Carter successfully evaded police without being

effected by the discovery of the evidence. Accordingly, this Court should affirm.

II. THE DUE PROCESS RIGHTS OF THE PETITIONERS WERE NOT

VIOLATED BECAUSE THE ACTIONS OF THE GOVERNMENT WERE NOT

OUTRAGEOUS BY ANY APPLICABLE STANDARDS.

There is no universal litmus test that a court can utilize to determine whether behavior is

extreme and outrageous. United States v. Santana, 6 F.3d 1, 6 (1st Cir. 1993) (citing Borden v.

Paul Revere Life Ins. Co., 935 F.2d 370, 380 (1st Cir. 1993))2. Outrageous government conduct

occurs when the actions of law enforcement officers or informants are “so outrageous that due

process principles would absolutely bar the government from invoking judicial processes to

obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32 (1973). The claim of

outrageous government conduct is limited to extreme cases in which the government’s conduct

violates fundamental fairness and is “shocking” to the universal sense of justice mandated by the

Due Process Clause of the Fifth Amendment. United States v. Gurolla, 333 F.3d 934, 950 (9th

Cir. 2003). The standard is an extremely high standard, and police conduct must be repugnant to

the American system of justice. United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). This

Court has never held that an indictment should be dismissed for outrageous government conduct,

and only two federal circuits have reversed convictions on these grounds. See United States v.

Twigg, 588 F.2d 373 (3rd Cir. 1978); Greene v. United States, 454 F.2d 783 (9th Cir. 1971).

Courts have been extremely reluctant to strike down law enforcement techniques as a violation

of due process. United States v. Savage, 701 F.2d 867, 869 (11th Cir. 1983).

2 Discussing outrageousness in the context of tort liability.

16

A majority of federal appellate court decisions apply a totality of the circumstances

approach to assess the fairness of the government’s involvement in crime-related activity.3

United States v. Mazella, 768 F.2d 235, 238 (8th Cir. 1985). There is no bright line dictating

when law enforcement conduct crosses the line between acceptable and outrageous, so every

case must be resolved on its own particular facts. United States v. Black, 733 F.3d 294, 302 (9th

Cir. 2013) (citing United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986)). Applying a fact-

based totality of the circumstances test, the conduct of the government does not rise to the level

of outrageousness required to mandate dismissal of the indictment.

A. The Conduct Of The Government Was Not Outrageous, Because The Government Acted

Reasonably With Respect To Their Reverse-Sting Operation.

1. The government did not manufacture the crime from beginning to end.

The government did not engineer the crime from beginning to end, but rather afforded an

opportunity and maintained an undercover status. A prosecution cannot be defeated merely

because a government agent has provided the accused with the opportunities or facilities for the

commission of the crime. United States v. Tobias, 662 F.2d 381, 384-85 (5th Cir. 1981). In

Tobias, the Government created a fictitious chemical supply company, maintained a business

location, placed an advertisement in a magazine, and communicated with the defendant multiple

times as undercover agents. Id. at 383. After the defendant attempted to cancel an order for

supplies to manufacture cocaine, the government agent empathized with the defendant and

suggested that “making PCP was as easy as baking a cake”, so the defendant purchased supplies

for PCP. Id. In Hampton v. United States, a government agent supplied an illegal drug to

Petitioner, and this Court upheld the conviction, stating that the government agent was just acting

3 See United States v. Twigg, 588 F.2d 373 (3d Cir.1978); United States v. Tobias, 662 F.2d 381

(5th Cir.1981); United States v. Leja, 563 F.2d 244 (6th Cir.1977); United States v. Black, 733

F.3d 294 (9th Cir. 2013); United States v. Haimowitz, 725 F.2d 1561 (11th Cir. 1984).

17

in concert with the defendant. 425 U.S. 484, 489-90 (1976). Conversely, in United States v.

Twigg, the government agent suggested an establishment of a speed agency, provided 20% of

glassware and the indispensable ingredient required for the manufacture of speed, provided all

supplies, a farmhouse location, provided the laboratory expertise, and was completely in charge

as defendants had no idea how to manufacture methamphetamine.588 F.2d 373, 380-82 (3d Cir.

1978). In that case, the government controlled the crime from start to finish, and did not merely

offer an opportunity or act in concert with defendants.

In this case, the Government did not control the crime from start to finish, an important

finding by courts in the cases which have reversed convictions. See Id.; Greene v. United States,

454 F.2d 783 (9th Cir. 1971). The CI initially approached Petitioner Malik Price, but he walked

away, and his brother returned to ask about any “good come-ups”. (R. at 4-5). The robbery crew

involved in the sting manufactured the robbery plans and tactics. (R. at 5-6). They also brought

in other people, as well as the getaway vehicle and bags of robbery-like equipment. (R. at 4-6).

The government may have created the fictitious robbery plan initially, but Petitioners took the

lead, only receiving general critiques from Agent Miller during the brief meetings. (R. at 5-6).

The government suggested the type of crime, but Petitioners engineered the plan.

2. Petitioners played active roles in the operation.

Outrageous government conduct requires not only over-involvement by the government,

but also a passive role by the defendant. United States v. Nations, 764 F.2d 1073, 1076-77 (5th

Cir. 1985). A defendant cannot avail himself of the defense where he has been an active

participant in the criminal activity which gave rise to his arrest. United States v. Yater, 756 F.2d

1058, 1066. (5th Cir.1985). In Nations, the Court found no outrageous government conduct when

the defendant actively participated in an effort to sell stolen automobiles. 764 F.2d at 1077. In

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United States v. Sneed, the court found that the defendant played a direct, active, and primary

role in organizing and planning fraud. 34 F.3d 1570, 1578 (10th Cir. 1994). In that case, the FBI

initiated contact with the defendant and outlined a basic plan, but the defendant readily adapted

and refined the plan, adding crucial details to make the plan work smoothly. Id. In United States

v. Black, the government agent created a reverse-sting stash house robbery through a CI, and the

defendants were told to generate better robbery plans and provide equipment. 733 F.3d 294, 300-

01 (9th Cir. 2013). They actively participated, and the conviction was upheld. See Id.

In this case, Petitioners played an active role in the robbery plan. If the CI’s suggestion to

Petitioner Price was the reason Terrance Price asked about the robbery, then this shows that

Malik did actively participate in the robbery. (R. at 4-5). However, even if Malik did not tell

Terrance about the robbery, and Terrance approached the CI on his own, Malik still accompanied

Terrance and the others to the robbery. (R. at 6). There is no evidence on the record that Malik

was forced by duress or necessity. Cedrick Jones actively participated in the robbery, as he

bragged about committing other robberies before and formulated several robbery plans. (R. at

39-40). Circumstantial evidence implicated Ben Carter as an associate in the robbery, as he was

found near the fictitious stash-house location. (R. at 7). Petitioners played active roles in the

crimes that were charged.

3. Neither physical nor psychological coercion were used by the government.

At no point in its reverse-sting operation did the government physically or

psychologically coerce Petitioners into committing the charged crimes. Unacceptable

governmental conduct occurs when the government agents act brutally by using physical or

psychological coercion against the defendant. United States v. Bonanno, 852 F.2d 434, 437-38

(9th Cir. 1988). In Rochin v. California, this Court held that illegally breaking into the privacy of

19

Petitioner, struggling to open his mouth and remove what was there, and then forcibly extracting

his stomach’s contents was conduct that actually “shocked the conscience” by physical means.

342 U.S. 165, 209-210 (1952). Similarly, in Greene v. United States, the Ninth Circuit found

psychological coercion when Government agents made veiled threats to the defendant to induce

him to continue a bootlegging operation. 454 F.2d 783, 787 (1971). In United States v. Nations,

the court found no psychological coercion when the government’s agent claimed to have cancer

to gain the sympathy and cooperation of the defendant to persuade her into the sale of stolen

automobiles. 764 F.2d 1073, 1077 (5th Cir. 1985). Not only did that court find no psychological

coercion, but stated that those techniques were “not even improper”, let alone outrageous. Id.

Neither physical nor psychological coercive tactics were used to induce Petitioners to

commit the dangerous federal crimes. There is no proof in the record that Agent Miller or the CI

ever touched Petitioners. Also, there is no evidence in the record that the CI or Agent Miller used

threats as psychological coercion to induce the defendants to committing the charged crimes.

Malik Price knew from the moment the CI approached him that this operation involved robbing a

stash house. (R. at 4). Cedrick Jones was told that his robbery proposals were not good, and

Agent Miller questioned his ability to carry out an armed robbery, but these were not threats or

proof of psychological coercion. (R. at 5). Furthermore, Agent Miller even tried to warn

Terrance Price, before he brought anyone else, if he and his robbery crew could handle riding

into a firefight and getting shot. (R. at 37). According to the record, no threats nor any physical

violence were used to coerce the robbery crew into committing federal crimes.

4. The government did not furnish any valuable tangible items to Petitioners.

The government did not furnish any items to Petitioners. Government infiltration of

criminal activity is a recognized and permissible means of investigation, and frequently requires

20

that the government furnish something of value to the criminal. United States v. Sanchez, 138

F.3d 1410, 1413 (11th Cir. 1998) (citing United States v. Puett, 735 F.2d 1331, 1335 (11th Cir.

1984)). Even so, government agents who supply or sell illegal drugs or provide other essential

services does not necessarily constitute misconduct. Sanchez, 138 F.3d at 1413. The government

may not instigate the criminal activity by suggesting the establishment of an illegal drug

laboratory, provide the place, equipment, supplies and know-how, and run the entire operation

with only meager assistance from the defendants without violating fundamental fairness. See

United States v. Twigg, 588 F.2d 373 (3d Cir.1978). However, those cases are rare, and any

furnishings from the government in this case do not even come close to the level reached in

United States v. Tobias. See 662 F.2d 381, 383 (5th Cir. 1981).

Nothing used by petitioners during the planning of the robbery was provided for by the

government. In the circuit court cases overturned for outrageous government conduct, the

government provided too many items to the defendants to constitute acceptable law enforcement.

See generally United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); Greene v. United States, 454

F.2d 783 (9th Cir. 1971). In this case, the Government did not provide chemicals, illegal drugs,

firearms, services, or armed robbery techniques. During the meetings, the conspirators brought

on their own members for the robbery crew. (R. at 4-5). When the conspirators met on the day of

the robbery, Ingram brought the getaway vehicle in which several bags with robbery-like

equipment were found. (R. at 6-7). The only “things” the government provided were the initial

idea to commit the robbery and the address of a house. (R. at 4-6). However, these were

necessary components of the sting, especially when Ingram demanded an address. (R. at 6).

21

5. The government’s actions were not aimed at creating new crimes, but rather at

reducing the amount of crime in Green Ridge.

Stash house robberies are largely unreported crimes that pose a great risk of violence in

residential communities. U.S. v. Black, 733 F.3d 294, 309 (9th Cir. 2013); stash house robbery

reverse-stings were created to combat that. See Id. In Black, the government agent testified that

actual stash house robberies lead to shoot-outs and hostage-taking, so the reverse-sting was

aimed to catch those willing to commit violent crimes before they could actually do so. Id. In

Sneed, the FBI and SEC designed an investigation to uncover ongoing criminal behavior, even

though the two agencies created a fake company with a fake president, so the defendant would

engage in manipulation of the price of worthless stock. 34 F.3d 1570, 1574 (10th Cir. 1994). No

outrageous government conduct was found in either Sneed or Black. Id.; 733 F.3d 294 (9th Cir.

2013).

Operation Gideon was strategically designed to find and arrest people engaging in violent

home robberies of drug stash houses in residential neighborhoods, and ATF considered this a

safer technique than planting actual drugs. (R. at 2). ATF implemented the operation in Green

Ridge in response to an increased number of shootings, kidnappings, and other criminal activity

that recently occurred. (R. at 3). Green Ridge is home to over 8,000 gang members, in 74

separate gangs. Over the past year, the reverse-stings have led to a correlative decrease in the

level of violence and kidnappings associated with stash house robberies. (R. at 3). The

government was not attempting to create new crime, because the crime was already occurring;

these are legitimate reasons to use the reverse-sting operation, and it appears to serve as a

deterrence to violence and kidnappings.

22

B. Even If This Court Utilizes A Factor-Test, Such As The One Articulated In United States

V. Black, The Factors Still Weigh In Favor Of The Government.

The Ninth Circuit enumerated six factors to focus on whether the government’s conduct

was so outrageous as to violate a defendant’s fundamental rights. See United States v. Black, 733

F.3d 294 (9th Cir. 2013). The factors are as follows: (1) known criminal characteristics of the

defendant; (2) individualized suspicion of the defendant; (3) the government’s role in creating

the crime of conviction; (4) the government’s encouragement of the defendants to commit the

offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6)

the nature of the crime being pursued and the necessity for the actions taken in light of the nature

of the criminal enterprise at issue. Id. The district court correctly grouped the first three factors

into pre-initiation contact by the government, the next two factors into post-initiation conduct by

the government, and the final factor the overall necessity of the government’s actions. (R. at 17).

1. The government’s pre-initiation contact is permissible in a reverse-sting operation.

The actions of the government prior to initiating contact with the defendants are

permissible for reverse-sting operations. See generally United States v. Black, 733 F.3d 294 (9th

Cir. 2013). It is fundamentally fair for the government to focus on a particular category of people

who may later expose criminal characteristics. See United States v. Garza-Juarez, 992 F.2d 896

(9th Cir. 1993). In that case, the government targeted Hispanic males near a particular location to

lure one into the faked the sale of illegal weapons. Id. at 899-900. See also United States v.

Emmert, 829 F.2d 805,812 (9th Cir. 1987) (targeting a student who attended a cocaine party as

one likely to know drug dealers); United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981)

(targeting politicians in the gaming business for investigation of political corruption).

Additionally, it is permissible for undercover law enforcement to have no individualized

suspicion of the defendants. See United States v. Mayer, 503 F.3d 740 (9th Cir. 2007). In Mayer,

23

the Ninth Circuit upheld a conviction in which the government noted that there was no ongoing

criminal enterprise, but that the defendant was a willing and experienced participant in similar

activities. Id. at 754. With regard to the government’s creation of the crime, the Ninth Circuit

also upheld convictions in United States v. Black, in which a fictitious stash house robbery was

entirely the creation of the Bureau of Alcohol, Tobacco, and Firearms, and the government knew

of no criminal characteristics or individualized suspicion of the defendants. 733 F.3d 294, 307

(9th Cir. 2013). The facts in this case regarding the pre-initiation contact are virtually identical to

those in Black.

In this case, the government knew of no criminal history or individualized suspicion of

Petitioners, and it created the crime, but it did not manufacture stash house robberies in Green

Ridge generally. (R. at 2). Though there was no individualized suspicion of Petitioners prior to

the initiation of the sting, the conspirators later described to Agent Miller their participation in

previous armed robberies, and they were all willing commit the crime. (R. at 4-6, 39-40). Similar

to Black, the government in this case created the stash-house robbery operation without knowing

any specific characteristics of the conspirators.

2. The government’s post-initiation conduct was minimal in terms of duration, nature,

and necessity.

The Government’s post-initiation conduct in Operation Gideon was minimal in this case,

and includes duration, nature, and necessity of government involvement. Duration of the

government’s participation in a criminal enterprise is significant, with participation of longer

duration being of greater concern than intermittent or short-government involvement. See United

States v. Greene, 454 F.2d 783, 786 (9th Cir. 1971) (finding outrageous government conduct for

a three-year operation). The nature of the participation of the government is also important.

United States v. Williams, 547 F.3d 1187, at 1201 n. 11 (9th Cir. 2008) (noting that the

24

government did not engineer the crime from start to finish, as the defendant participated in the

planning stages, arranged for his crew to help him, instructed the government agent to bring a

gun, and even raised money to rent a car for the robbery). The necessity of the government’s

involvement is defined as whether the defendants would have had the technical expertise or

resources necessary to commit such a crime without the government’s intervention. United

States v. Twigg, 588 F.2d 373, 380-81 (3d Cir. 1978). In Twigg, the court reversed a conviction

in which defendants did not know how to manufacture methamphetamine but for the help of the

government. See Id. Conversely, in Black, the government agent provided no weapons, plans,

manpower, or direction about how to commit the robbery, even when defendants sought his

advice. 733 F.3d 294, 309 (9th Cir. 2013).

Not only was the government’s role minimal in post-initiation conduct, but Agent Miller

even discouraged the defendants from actually committing the crime, because it was so

dangerous that people could get shot. (R. at 37). Regarding duration, the span of the reverse-sting

in this case only lasted about three weeks from beginning to end. (R. at 4-7). Additionally, Agent

Miller scheduled the meeting times, but the robbery crew themselves planned the robbery,

arranged for others to help, and provided tools to commit the robbery on the day of the planned

event. (R. at 5-7). Similar to Black, in terms of necessity, some of the conspirators bragged about

how they had committed robberies and other violent crimes before, and they came up with the

robbery proposals. (R. at 4-6, 39-40).

3. The necessity of the reverse-sting is favorable to alternatives given the violent nature

of the crime.

This final factor weighs heavily in favor of the government, because real stash-house

robberies are violent in nature, and the alternative to the government creating a reverse-sting

operation is to let the violent felony occur first. In United States v. Black, the court credited the

25

government agent’s testimony that many home invasions involve disputes between rival gangs,

and trying to arrest one gang in the act of robbing another can lead to shoot-outs and hostage

taking. 733 F.3d 294, 300 (9th Cir. 2013). Similarly, in United States v. Williams, the court

stated that the government’s decision to use a sting operation to apprehend this group of

criminals reduced the risk of violence to the public and was to be “commended, not condemned.”

547 F.3d 1187, 1201 (9th Cir. 2008).

The instant case is extremely similar to Black and Williams. It is undisputed that there

was a spike in violent crimes in the Green Ridge area over the past year, and that these stings

have led to a correlative decrease in them. (R. at 3). The government was concerned about this

increase in violence, and they chose to implement Operation Gideon in Green Ridge. (R. at 3).

Operation Gideon had been previously successful in five other states, as well. (R. at 3). Just as in

Williams, the law enforcement techniques of the government in this case should be commended.

The conduct of the government with respect to Operation Gideon in Green Ridge was not

outrageous, under a totality of the circumstances test or under an enumerated factor-test.

CONCLUSION

For the forgoing reasons, the order of the Court of Appeals for the Thirteenth Circuit

should be affirmed.