United States of America v. Alex Joseph Pedrin, Jr. a/k/a Alex Pedrin, Jr.

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

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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 Cir. 2013) (same); United States v.

Docampo, 573 F.3d 1091, 1093 (11th Cir. 2009) (same);

United States v. Paisley, 178 F. App’x 955, 957 (11th Cir.

2006) (same). “[T]he ATF has a standard playbook for such

operations, and the facts between cases are frequently nearly

identical.” United States v. Kindle, 698 F.3d 401, 404 (7th

Cir. 2012), rev’d en banc sub nom. United States v. Mayfield,

771 F.3d 417 (7th Cir. 2014) (en banc).

Zayas met Pedrin through a confidential informant, Jesus

Contreras. Contreras was working with Zayas in the ATF’s

Tucson office. Contreras told Zayas that his nephew, Omar

Perez, had called him to “ask[] for work,” which Contreras

understood to mean work stealing drugs. Contreras set up a

meeting between Zayas, Perez, and Pedrin on August 17,

2009. The meeting took place in Zayas’s car. During a

videorecorded conversation in the car, Zayas described

himself to Perez and Pedrin as a disgruntled cocaine courier.

He told the two men that he knew about a local stash house,

guarded by two armed men, that contained between 40 and 50

kilograms of cocaine. Zayas said he was looking for

“someone to go in there and take everything.” He asked the

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men, “What do you think? . . . Can that be done?” Each man

assented.

Zayas met with Perez and Pedrin again on August 19.

The men agreed that the robbery would take place two days

later, on August 21. Zayas pressed Perez and Pedrin for

details about their plan. Pedrin responded, “We’ll just . . . go

right when you go in so we’re all together, you know what I

mean? . . . Put everybody down. Make them tell us where

everything is at and then we leave and then we go split it up.”

In response to Zayas’s questions, Pedrin said he and Perez

had recruited three other men. Two of them would go into

the house with Pedrin and the other would stay outside with

Perez. Pedrin told Zayas that he had obtained “walkie talkies

and scanners” to facilitate the operation. The details were

planned by the defendants themselves. At no point did Zayas

instruct Pedrin and Perez how to carry out the robbery.

On August 21, the day of the planned robbery, Zayas met

with all five men. Zayas stated again that the stash house

contained between 40 and 50 kilograms of cocaine and that

it was guarded by at least two armed men. Zayas then

instructed Pedrin and the others to follow him to a storage

locker at which they were to drop Zayas’s share of cocaine

after the robbery. On the way to the locker, however, the

men became suspicious and pulled into a nearby trailer park.

One of the men took a different car to the storage locker

location, where he saw ATF agents. He called the others and

warned them that it was a sting. The men fled but were

picked up by federal and state officers shortly afterward.

Pedrin was charged with conspiracy to possess with intent

to distribute 40 to 50 kilograms of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. He was

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tried before a jury in February 2011. One of Pedrin’s codefendants,

Terry Bombard, testified at Pedrin’s trial in

exchange for a lighter sentence. Bombard said that he had

met Pedrin over four years earlier in connection with another

robbery of a drug stash house. Pedrin, he said, had organized

a “gang” of nine men to steal between 200 to 250 pounds of

marijuana. Bombard testified that he had participated in

thirteen or fourteen stash-house robberies, most or all of them

with Pedrin. Pedrin was convicted and sentenced to 210

months in prison.

Pedrin challenges his conviction and sentence on eleven

grounds. We resolve Pedrin’s contention that his prosecution

resulted from “outrageous government conduct” in this

opinion, and the remaining ten contentions in a concurrently

filed memorandum disposition. We have jurisdiction under

28 U.S.C. § 1291. We review the district court’s decision not

to dismiss the indictment for outrageous government

misconduct de novo, viewing the evidence in the light most

favorable to the government. Black, 733 F.3d at 301. We

affirm.

II. Discussion

A prosecution results from outrageous government

conduct 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). A federal court must dismiss

a prosecution based on such actions. The standard for

dismissal on this ground is “extremely high.” United States

v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). Dismissals are

“limited to extreme cases in which the government’s conduct

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violates fundamental fairness.” United States v. Gurolla,

333 F.3d 944, 950 (9th Cir. 2003). An indictment can be

dismissed only where the government’s conduct is “so

grossly shocking and so outrageous as to violate the universal

sense of justice.” United States v. Stinson, 647 F.3d 1196,

1209 (9th Cir. 2011) (quoting United States v. Restrepo,

930 F.2d 705, 712 (9th Cir. 1991)).

Pedrin argues that the reverse sting operation that led to

his conviction was “outrageous government conduct” under

this standard and that his indictment accordingly should be

dismissed. We considered and rejected a similar argument in

Black, 733 F.3d 294. Like Pedrin, the defendants in Black

were the targets of a stash-house sting operation planned by

Agent Zayas. Id. at 298–301. They argued that Zayas, by

initiating contact with the defendants, describing the fictitious

stash house, and suggesting that they rob it — all without any

individualized suspicion about the defendants’ criminal

history — had engaged in “outrageous” conduct, and that

their indictments should be dismissed. See id. at 306. We

expressed “concerns” with the ATF’s tactics, but we

ultimately concluded that they “did not cross the line.” Id. at

307, 310. Black compels the same conclusion here.

In Black, we identified six factors “as relevant to whether

the government’s conduct was outrageous”:

(1) known criminal characteristics of the

defendants; (2) individualized suspicion of the

defendants; (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

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participation in the offense conduct; and

(6) the nature of the crime being pursued and

necessity for the actions taken in light of the

nature of the criminal enterprise at issue.

Id. at 303. We noted that “the first three are most relevant to

the way in which the government set up the sting,” while “the

fourth and fifth look to the propriety of the government’s

ongoing role in the sting,” and the last focuses on the

justification for the operation. Id. at 303–04. Attempting to

distinguish this case from the facts of Black, Pedrin focuses

on the first three factors. He contends that Zayas knew less

about the defendants’ propensity to commit crimes in this

case than he knew about the defendants’ similar propensities

in Black. We disagree.

First, the “major” concern present in Black — that the

government found the defendants in that case by “trolling for

targets,” id. at 303 — is not present here. In Black, the

confidential informant visited “a bad part of town, a bad bar,

you know . . . bars where you’ve got . . . a lot of criminal

activity” in order to identify and recruit targets. Id.

(alterations in original). We wrote in Black, “The risk

inherent in targeting such a generalized population is that the

government could create a criminal enterprise that would not

have come into being but for the temptation of a big payday

. . . .” Id. Here, by contrast, one of the defendants — Omar

Perez, Pedrin’s co-conspirator — approached the informant

to look for work stealing drugs. The government thus had

little reason to suspect that Pedrin and Perez were

“vulnerable” persons “who would not otherwise have thought

of doing such a robbery.” Id.

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Second, as in Black, the government’s subsequent

inquiries “mitigated” any concerns it might have had that the

defendants were reluctant participants in the operation. See

id. at 307. On August 17, when they first met with Zayas,

Pedrin and Perez readily agreed to carry out the robbery.

Two days later, they had recruited three other men; had

obtained “walkie talkies and scanners” to facilitate the

robbery; and had assigned roles and responsibilities during

the robbery. Although Pedrin and Perez were less voluble

than the defendants in Black, who boasted loudly of their

criminal records, their conduct — like the conduct of the

Black defendants — gave rise to an inference that they had

previously committed similar crimes. See id. at 300, 307.

We note that in assessing whether the government’s

conduct was “outrageous,” the relevant question is what the

government knew when it was setting up the sting, not what

it learned later. On appeal, the government argues that

Pedrin’s criminal record shows that Zayas “infiltrated [a]

home invasion gang that was already engaged in criminal

activity.” But the government admits that Zayas was not

aware, as he was setting up the sting, that Pedrin had

previously robbed other stash houses. Instead, the

government learned of Pedrin’s alleged prior involvement in

stash house robberies only after it had apprehended and

interviewed Bombard, one of the co-conspirators. As we

suggested in Black, the question is not whether a defendant in

fact “may have been predisposed to commit a stash house

robbery.” Id. at 306 n.9. Rather, it is whether the

government had reason to believe, in light of what it knew as

it was setting up the sting, that a defendant was so

predisposed. If Black was less than clear on this point, we

make it clear today: What the government learns only after

the fact cannot supply the individualized suspicion that is

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necessary to justify the sting if the government had little or no

basis for such individualized suspicion when it was setting up

the sting.

In this case, however, the government knew enough about

Pedrin as it was setting up the sting to eliminate the

possibility that “it sought to manufacture a crime that would

not have otherwise occurred.” Id. at 307. One of Pedrin’s

co-conspirators, Perez, reached out to the government, and

not vice versa; Pedrin readily agreed to participate in the

supposed stash-house robbery; and Pedrin supplied plans and

materials. This provided a sufficient basis for the

government to infer that Pedrin had a predisposition to take

part in the planned robbery. Like the majority in Black, we

do not lightly dismiss the “concerns about the risks of

government overreaching inherent in fictitious stash house

sting operations.” Id. at 310 n.13. But we are compelled by

Black to conclude that the government’s conduct here was not

“so grossly shocking and so outrageous as to violate the

universal sense of justice.” Stinson, 647 F.3d at 1209

(quoting Restrepo, 930 F.2d at 712). The district court

therefore correctly denied Pedrin’s motion to dismiss the

indictment.

Conclusion

Pedrin’s prosecution did not result from “outrageous

government conduct.” For that reason, and for the reasons

stated in our concurrently filed memorandum disposition, we

AFFIRM his conviction and sentence.

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NOONAN, Circuit Judge, 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

(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: “[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. The timing of the defendant’s disposition is

critical: “The sole issue is whether the Government met its

burden of proving that petitioner was predisposed to violate

the law before the Government intervened.” Id. at 549 n.2.

(italics in original).

No showing has been made that Pedrin was known to be

predisposed to commit this crime prior to being approached

by the agents of ATF. The ATF laid out the entire stash

house scheme to him before he had said a single word. The

prosecution of his case should be dismissed.

The majority addresses Pedrin’s claim of outrageous

government conduct – a defense that the Supreme Court has

never found to be applicable. See United States v. Russell,

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411 U.S. 423, 431 (1973). The majority does not address

entrapment for what would appear to be a good reason:

entrapment was not argued by Pedrin. It is within our power

to hold that the argument was waived. It is also within our

power to notice a meritorious argument unmentioned by

counsel. See Hormel v. Helvering, 312 U.S. 552, 557 (1941)

(“There may always be exceptional cases or particular

circumstances which will prompt a reviewing or appellate

court, where injustice might otherwise result, to consider

questions of law which were neither pressed nor passed upon

by the court or administrative agency below.”); see also

Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 540 (1999). As

a court, we are more than referees tallying scores. We have

a live concern that human beings caught in the legal process

be treated fairly.

Entrapment is not a defense created by the Constitution or

by statute. It is judge-created. It was first recognized by a

federal court in a decision of the Ninth Circuit. Woo Wai v.

United States, 223 F. 412 (9th Cir. 1915). It was first

recognized by the Supreme Court in Sorrells v. United States,

287 U.S. 435 (1932).

Entrapment as a defense is the creation of a collaboration

between a court and Congress. What Chief Justice Hughes

said in Sorrells was that Congress could not have intended to

punish a man trapped into buying bootleg liquor. Chief

Justice Hughes did not cite the legislative history of the

National Prohibition Act. What he did was to attribute

sensible motivation to the authors of the prohibition law. In

his reading they did not intend to criminalize the purchase of

the liquor when the purchase was induced by a prohibition

agent.

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This kind of collaboration – the judicial reading of

legislative purpose without reference to specific legislative

evidence – has a history commanding respect, as Chief

Justice Hughes demonstrated beginning with the statement

that the literal interpretation of statutes “has frequently been

condemned.” Id. at 446. He continued with the invocation of

a decision by Chief Justice John Marshall. Sorrells, 287 U.S.

at 446.

In Marshall’s decision, United States v. Palmer, 16 U.S.

1610 (1818), John Palmer and Thomas Wilson of Boston and

Barney Colloghan of Newburyport were charged by a federal

grand jury with attacking and looting a Spanish ship during

the rebellion against Spain in South America. The New

England privateers had taken gold and silver worth $60,000

plus a rich cargo of commodities including honey, rum, and

sugar. The circuit court divided one–one on the application

of the federal piracy statute, and the case was certified to the

Supreme Court. No counsel appeared for the prisoners. The

government earnestly argued for their conviction. Chief

Justice Marshall delivered the opinion of the Court.

In so many words, the statute applied to “any person or

persons” who committed piracy. No exceptions were

specified. Anyone in the world who committed piracy fell

within the law. But had Congress meant to include every

person? No, Marshall answered, Congress must have

intended only crimes that were against the United States.

Palmer, 16 U.S. at 624–35. The prisoners were free.

Analogously, in United States v. Kirby, the defendant was

indicted for obstructing the mail. 74 U.S. 482 (1868). He had

acted on a state warrant and arrested a mail carrier on a

charge of murder. Speaking for a unanimous court, Justice

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Stephen Field reversed. His brief opinion appealed to “the

common sense of man.” Id. at 487. As Puffendorf had noted,

a Bolognese statute that forbad the drawing of blood in the

street did not apply to a surgeon who treated a person who

fell in the street. Again, as Plowden said, a statute against a

jail break would not apply to a prisoner whose life was

endangered by fire in the prison. It was “always . . . to be

presumed” that the legislature intended exceptions that would

avoid “injustice, oppression, or absurd consequences.” Id. at

486–87.

In Holy Trinity Church v. United States, a federal statute

made it unlawful to prepay the transportation of any aliens

who were under contract to perform “service of any kind” in

the United States. 143 U.S. 457 (1892). An Episcopal church

had paid the way from England of a minister who would be

its pastor. The United States sued to collect a penalty. The

circuit upheld the fine. The Supreme Court unanimously

reversed. The reason for the law, Justice Brewer wrote, was

to be found in its legislative history that showed that its

purpose was to prevent employers importing “an ignorant and

servile class of foreign laborers.” Id. at 463. The statute

expressly exempted the importation of actors, artists,

lecturers, singers, and domestic servants. The existence of

these exemptions made by the legislature did not deter the

court from adding its own. No purpose against religion could

be found in the statute because “this is a religious people.”

Id. at 465. The legislature could not have meant to penalize

the importation of priests, ministers, or rabbis. Ecumenical

within the orbit of religious belief then active in America, the

court’s opinion met with acceptance.

Invoking these and other precedents showing the latitude

the court enjoyed in creating exceptions to federal law, Chief

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Justice Hughes in Sorrells turned to the case at hand.

Congress could not have meant the prohibition law should be

enforced “by the instigation by government officials of an act

on the part of persons otherwise innocent in order to lure

them by its commission and to punish them.” Sorrells,

287 U.S. at 448. Prosecution in such a case was “outside the

purview” of the statute and was “abhorrent to the sense of

justice.” Id. at 449. The judgment of conviction was

reversed.

In 1958, the Supreme Court explicitly reaffirmed Sorrells’

teaching on entrapment. Sherman v. United States, 356 U.S.

369 (1958). Sherman, seeking to overcome an addiction to

narcotics, encountered Kalchinian, already active as an

informer, who asked Sherman if he knew a good source of

narcotics. After several repetitions of the question, Sherman

obtained narcotics which he shared with Kalchinian, charging

him $15 per delivery. Kalchinian then tipped off a narcotics

agent, who observed further sales by Sherman to Kalchinian.

At trial, the question was whether Sherman was “already

predisposed” to sell the narcotics or whether the informer

“had caused an otherwise unwilling person” to sell the drugs.

Id. at 371. The district court and the Second Circuit

confirmed Sherman’s conviction. Chief Justice Warren,

writing for the Supreme Court, reversed, holding it to be

“patently clear” that Sherman had been induced by

Kalchinian. Id. at 373. The sales to the narcotics agent were

not independent acts, but part of a course of conduct by

Sherman which was the product of the informer’s

inducement. Sherman’s four-year old conviction for selling

drugs and his five-year old conviction for buying drugs were

not evidence of Sherman’s predisposition when Kalchinian

approached him.

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Sorrells is a live and controlling precedent. The case has

been cited 28 times by the Supreme Court, 102 times by this

circuit, and 23 times by district courts within the circuit.

Sorrells has never been overruled or treated as irrelevant. Its

central holding has not been challenged. Sorrells is an apt

precedent for holding the ATF’s stash house trick to be

entrapment. In fact, the ATF has exceeded the prohibition

agent in Sorrells. He sold actual liquor. The ATF sponsored

the theft of imaginary drugs.

The majority correctly concedes that “[w]hat the

government learns only after the fact cannot supply the

individualized suspicion that is necessary to justify the sting.”

Maj. Op. at 9–10. What did the ATF know about Pedrin

before it approached him? The majority does not say. The

record says that the ATF knew nothing. It was a shot in the

dark when the ATF enlisted Pedrin as a co-conspirator. The

majority speaks of a different defendant, Omar Perez, when

at page 8 it addresses the question. What the ATF knew of

Perez establishes nothing as to what the ATF knew about

Pedrin.

Once enlisted, Pedrin recruited others, sketched a scenario

for the robbery, and obtained walkie-talkies and scanners. As

the ATF had already selected Pedrin as a player in its

imagined robbery, none of this activity had any significance.

The ATF was already at work with Pedrin cast by the agency

as a co-conspirator.

As the case now stands, the ATF enhances its reputation

by its successful ruse. The government of the United States

is diminished by its dependence on the duplicity of the

agency. Because of a choice made by Pedrin or his counsel,

entrapment was not argued and Jacobson was uncited. By

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the rules governing litigation we can affirm Pedrin’s

conviction. By our commitment to a humane justice, we are

called to dismiss the case made by the entrappers.

Affirmed