                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 11-10118
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:09-cr-01406-
                                            SRB-3
BRANDON HULLABY,
            Defendant-Appellant.




UNITED STATES OF AMERICA,                No. 11-10170
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:09-cr-01406-
                                            SRB-3
BRANDON HULLABY,
            Defendant-Appellant.           OPINION


      Appeal from the United States District Court
               for the District of Arizona
       Susan R. Bolton, District Judge, Presiding

        Argued and Submitted March 11, 2013
            Withdrawn From Submission
           Resubmitted November 1, 2013
              San Francisco, California
2                 UNITED STATES V. HULLABY

                     Filed December 4, 2013

    Before: J. Clifford Wallace, M. Margaret McKeown,
            and Sandra S. Ikuta, Circuit Judges.

                    Opinion by Judge Wallace


                           SUMMARY*


                          Criminal Law

    Affirming a conviction, the panel rejected the defendant’s
contention that the government engaged in outrageous
conduct during the investigation that led to the defendant’s
arrest.

    The panel explained that neither the fact that a
government informant had previously committed crimes, nor
that the informant was trying to reduce his future criminal
liability, satisfies the defendant’s burden of showing that the
government’s use of the informant was so outrageous as to
violate the universal sense of justice.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. HULLABY                      3

                         COUNSEL

Jon M. Sands, Federal Public Defender, District of Arizona;
Daniel L. Kaplan (argued), Assistant Federal Public
Defender, Phoenix, Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, District of
Arizona; Mark S. Kokanovich, Deputy Appellate Chief;
Dominic Lanza (argued), Assistant United States Attorney,
Phoenix, Arizona, for Plaintiff-Appellee.


                          OPINION

WALLACE, Circuit Judge:

    Brandon Hullaby appeals from his judgment of conviction
for conspiracy to possess with intent to distribute more than
five kilograms of cocaine under 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(ii) and possession of a firearm in furtherance of the
conspiracy under 18 U.S.C. § 924(c)(1)(A)(i). Hullaby
objects to various trial rulings by the district court. Here, we
consider only his contention that the government engaged in
outrageous conduct during the investigation that led to
Hullaby’s arrest.       In a separately filed unpublished
disposition, we consider his remaining arguments.

    Hullaby filed a timely notice of appeal. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.

                               I.

   Hullaby’s outrageous conduct claim hinges on the
character of a government informant named Pablo Cortina.
4               UNITED STATES V. HULLABY

Accordingly, we begin by considering Cortina’s criminal
history, insofar as it forms the basis of Hullaby’s claim.

     Several years before the government investigation that
led to Hullaby’s arrest, Cortina belonged to a group of
criminals who perpetrated a series of home invasions. The
group dressed in law enforcement uniforms when raiding
homes, and used a stolen law enforcement battering ram to
break down locked front doors. Carrying AK-47s, shotguns,
and other weapons, they would subdue and bind any
occupants present, and then abscond with their possessions.
Cortina was named in a 115-count indictment, and he knew
that he faced the possibility of spending the rest of his life in
prison. In hope of reducing his sentence, Cortina informed on
his associates. Due to his cooperation, he was allowed to
plead guilty to only one felony, and was sentenced to four
years of probation and released from jail.

    Less than a month after his release, Cortina began to steal
merchandise from his employer. A supervisor discovered
Cortina’s theft and called the police, at which point Cortina
fled. Fearful that his probation violation would send him to
prison for an extended period, and that he could face his old
associates there, he contacted the detective with whom he had
worked previously and offered to disclose more information
about new home invasions in the area.

    After meeting with him, and over the objection of
Cortina’s probation officer, agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) registered Cortina
as a confidential informant. The ATF then used Cortina in
the “reverse sting” operation in Phoenix, Arizona that caught
Hullaby. In this operation, undercover ATF agents, working
with Cortina, met with Hullaby and others to plan and carry
                UNITED STATES V. HULLABY                     5

out a robbery of a fictional cocaine stash house. Hullaby’s
part in the plan was to enter the stash house, along with three
others, and subdue the guards that the ATF agents said would
be present.

    On the appointed day, the ATF agents, Cortina, and the
other conspirators met in a parking lot from which they were
supposed to proceed to the stash house. As the participants
prepared to leave, one of the agents gave a signal and ATF
personnel arrested the conspirators.

                              II.

    We review de novo the district court’s conclusion that the
government did not violate Hullaby’s due process rights
through outrageous conduct. United States v. Smith, 924 F.2d
889, 897 (9th Cir. 1991). “For a due process dismissal, the
[g]overnment’s conduct must be so grossly shocking and so
outrageous as to violate the universal sense of justice.” Id.
This is “an extremely high standard.” Id. Indeed, as we have
recently observed, there are “only two reported decisions in
which federal appellate courts have reversed convictions
under this doctrine.” United States v. Black, — F.3d —, 2013
WL 5734381, at *5 (9th Cir. Oct. 23, 2013) (citing United
States v. Twigg, 588 F.2d 373 (3d Cir. 1978) and Greene v.
United States, 454 F.2d 783 (9th Cir. 1971)).

    Here, Hullaby contends that the government’s conduct
was outrageous, insofar as the government collaborated with
“a repeat violent home-invader [Cortina] whose motivation
in spurring the government to create this fictional offense was
to continue to avoid accountability for his own heinous
crimes.” In United States v. Simpson, 813 F.2d 1462 (9th Cir.
1987), we considered a similar argument. In that case, a
6               UNITED STATES V. HULLABY

confidential informant, while working to help the police, was
also engaging in prostitution and using heroin. Id. at
1469–70. The confidential informant had also been arrested
on “numerous” previous occasions. Id. at 1469. The district
court had dismissed the indictment, in part because the
government knew about these activities and arrests and
nonetheless continued to use the informant. Id. at 1464.

    We held that this state of affairs did not “raise[] due
process concerns,” because “[i]t is unrealistic to expect law
enforcement officers to ferret out criminals without the help
of unsavory characters.” Id. at 1470. Thus, we concluded
that the mere fact that a confidential informant “continued to
use heroin and engage in prostitution during [an]
investigation” did not “oblige the [government] to stop using
her as an informant.” Id.

    Likewise, here, the fact that Cortina had engaged in past
crimes does not raise due process concerns about the
government’s use of him as a confidential informant in its
investigation. Nor does the nature of Cortina’s past crimes
render the government’s conduct “outrageous.” Indeed, it
was precisely because of his past experience as a criminal that
he was useful to the ATF in its efforts to minimize the risks
inherent in apprehending groups who were engaging in home
invasions. We do not require the government to enlist a
person with no criminal experience to help with the
apprehension of a group of hardened criminals.

    Similarly, it is not shocking that Cortina was cooperating
out of self-interest. Id. at 1469 (observing that it is “common
practice for the government to reduce or drop charges against
persons who cooperate with law enforcement officials in the
prosecution of others”). We do not require the government
                 UNITED STATES V. HULLABY                       7

to recruit solely informants who will work in a spirit of
altruism for the good of mankind.

    It may be surprising that Cortina was given only four
years of probation by the state court after being charged with
very serious crimes. However, we are not reviewing his state
court sentence for “outrageousness” here. Rather, we
consider whether the government’s use of Cortina in
Hullaby’s case was so outrageous as to “violate the universal
sense of justice.” Smith, 924 F.2d at 897. Neither the fact
that Cortina had previously committed crimes, nor that he
was trying to reduce his future criminal liability, satisfies that
heavy burden.

    In sum, we reiterate our conclusion in Simpson that

        the due process clause does not give the
        federal judiciary a chancellor’s foot veto over
        law enforcement practices of which it [does]
        not approve. Rather, our Constitution leaves
        it to the political branches of government to
        decide whether to regulate law enforcement
        conduct which may offend some fastidious
        squeamishness or private sentimentalism
        about combatting crime too energetically, but
        which is not antithetical to fundamental
        notions of due process.

813 F.2d at 1468 (internal citations and quotation marks
omitted).

    AFFIRMED.
