                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 14-50129

              Plaintiff - Appellant,             D.C. No. 2:13 cr-0126 ODW-3

  v.
                                                 MEMORANDUM*
ANTUAN DUANE DUNLAP, AKA
Antuan Dunlap, AKA Rat Tone,

              Defendant - Appellee.



UNITED STATES OF AMERICA,                        No. 14-50285

              Plaintiff - Appellant,             D.C. No. 2:13 cr-0126 ODW-2

  v.

JOSEPH CORNELL WHITFIELD, AKA
Baby Flip, AKA Flip, AKA Joseph
Whitfield,

              Defendant - Appellee.


                   Appeals from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Argued and Submitted November 20, 2014
                              Pasadena, California

Before:     TASHIMA, W. FLETCHER, and BYBEE, Circuit Judges.

      The United States appeals from the district court’s orders dismissing an

indictment against Defendants Antuan Dunlap and Joseph Whitfield on the ground

of outrageous government conduct. See United States v. Hudson, 3 F. Supp. 3d

772 (C.D. Cal. 2014); United States v. Whitfield, 2014 WL 2761408 (C.D. Cal.

June 18, 2014). Both Defendants were arrested as part of the same reverse-sting

operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”), in which Defendants planned to rob an imaginary cocaine stash house

invented by ATF agents. The government also moves that the case be reassigned

to a different judge for any further proceedings. We have jurisdiction under 28

U.S.C. § 1291. We reverse and order reassignment.

      1.    The district court erred in concluding that the government’s conduct

met the “extremely high standard” necessary to dismiss an indictment for

outrageous government conduct. United States v. Black, 733 F.3d 294, 302 (9th

Cir. 2013) (quoting United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir.

1993)). We have previously held that similar reverse-sting operations, if properly

conducted, are a permissible law enforcement tactic. See id. at 309-10; United



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States v. Williams, 547 F.3d 1187, 1201 (9th Cir. 2008). The government’s

conduct here does not go beyond the bounds of what we found acceptable in Black.

The ATF targeted individuals who had already demonstrated an interest in

committing robberies, and did little more than “set the ‘bait’” by inventing a

fictitious cocaine stash house they could rob. Black, 733 F.3d at 310. Once the

bait was set, Defendants “responded with enthusiasm.” Id. at 307. They planned

nearly every detail of the robbery without assistance, including how many men

they would bring, what weapons they would use, how they would dress, how they

would break into the stash house, how they would restrain any guards, where they

would hide after the robbery, and where they would sell the stolen cocaine.

Defendants themselves also provided the guns, disguises, and zip ties necessary for

them to carry out the robbery according to the plans they made. The government’s

conduct here did not “violate fundamental fairness or shock the universal sense of

justice mandated by the Due Process Clause of the Fifth Amendment.” Williams,

547 F.3d at 1200 (internal quotation marks and alterations omitted).

      While we, like the district court, question the wisdom of the government’s

expanding use of fake stash house sting operations, we are bound by our court’s

prior decisions holding that when such sting operations are conducted, as in this

case, within the guidelines established by our precedent, they do not violate due


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process and cross the line into outrageous government conduct. The district court

was also so bound.

      2.     Because the district judge made statements indicating that he had

already decided how he would sentence Defendants, we also conclude that the

appearance of justice would be better served by remanding this case to a different

judge. “We may remand to a different district judge if a party can show personal

biases or unusual circumstances, based on an assessment of three factors: (1)

whether on remand the district judge can be expected to follow this court’s

dictates; (2) whether reassignment is advisable to maintain the appearance of

justice; and (3) whether reassignment risks undue waste and duplication.” United

States v. Kyle, 734 F.3d 956, 966-67 (9th Cir. 2013) (citation and internal quotation

marks omitted). “Because factors one and two are of equal importance, a finding

of either factor supports remand to a different district court judge.” Id. at 967

(quoting United States v. Atondo–Santos, 385 F.3d 1199, 1201 (9th Cir. 2004)).

Here, the district judge made a number of statements which reasonably could be

understood as indicating that he had pre-judged sentencing and intended to impose

a lenient sentence. Most notably, during Dunlap’s bail hearing, the district judge

stated, “I have it on pretty good terms and from a pretty good source [that Dunlap]

probably isn’t looking at a lot of time.” In view of these circumstances, the


                                          4
appearance of justice would be better served by reassigning this case to a different

judge. See id. at 960, 967 (reassigning case, to preserve the appearance of justice,

where judge had stated prior to trial that he was “prepared to impose a life

sentence”).

                                        • ! •

      For the forgoing reasons, the orders of the district court dismissing the

indictment are reversed and this case is remanded to the district court for further

proceedings with instructions that this case be randomly reassigned to a different

judge in accordance with the local rules and general orders of the Central District

of California.

      REVERSED and REMANDED with instructions.




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