                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50417

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cr-00468-ODW-1
 v.

TAVON DEJUAN PICKETT, AKA Bucket                MEMORANDUM*
and ROBERT ENNIS GOREE,

                Defendants-Appellees.

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

                        Argued and Submitted June 7, 2018
                              Pasadena, California

Before: TALLMAN and NGUYEN, Circuit Judges, and BENNETT,** District
Judge.

      The United States appeals the district court’s pretrial dismissal of the

indictment against Tavon Pickett and Robert Goree on the grounds of outrageous

government conduct. This case stems from an undercover operation by the Bureau


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) where a confidential

informant (“CI”) purchased fifty-nine firearms from Pickett, Goree, and other

members of the Mona Park Crips gang in Compton, California. We have

jurisdiction under 28 U.S.C. § 1291. We reverse, vacate the order of dismissal,

and order reassignment to a different district judge.

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

met the “extremely high standard” to dismiss the indictment. United States v.

Garza-Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (quoting United States v. Smith,

924 F.2d 889, 897 (9th Cir. 1991)). The government’s conduct here does not go

beyond the bounds of what we found acceptable in United States v. Black, 733

F.3d 294 (9th Cir. 2013). Each of the six Black factors weighs in favor of finding

that the government’s conduct in Mona Park was not outrageous. Id. at 303.

      The CI solicited the purchase of firearms in Mona Park, and Pickett and

Goree “responded with enthusiasm.” Id. at 307. Whether or not Pickett and Goree

had ever dealt in firearms before, they both sold firearms to the CI “willingly and

without pressure.” See Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986). As

in United States v. Pedrin, Pickett and Goree were brought into the crime by co-

conspirators, not the government, and readily agreed to participate in the sale of

firearms. 797 F.3d 792, 797 (9th Cir. 2015). The actions of Pickett and Goree are

sufficient to satisfy the individualized suspicion factor.


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      In determining the nature of the government’s involvement, courts look to

the duration, nature of the participation, and necessity of the government’s

participation in the criminal enterprise. Black, 733 F.3d at 308–09. Here, ATF

purchased firearms from Pickett and Goree for less than a year. Cf. Greene v.

United States, 454 F.2d 783, 786 (9th Cir. 1971) (finding an operation that lasted

over two years was “of [an] extremely long duration”).

       “The extent to which the government encouraged a defendant to participate

in the charged conduct is important, with mere encouragement being of lesser

concern than pressure or coercion.” Black, 733 F.3d at 308. There is no evidence

of government coercion or pressure here. “[T]he government proposed the

[firearms sales], and the defendants eagerly jumped at the opportunity.” Id.

      The government’s involvement after the initial offer was minimal. Pickett

and Goree approached the CI about purchasing their firearms, they found the

source of arms in Arizona, they proposed the prices and available guns, and they

facilitated the purchases at Goree’s house.

      Finally, Pickett and Goree had all the skills and expertise necessary to

conduct illegal firearms sales. Goree had a source of firearms in Arizona and

extensive knowledge about guns. Cf. United States v. Twigg, 588 F.2d 373, 376

(3d Cir. 1978) (noting that it was government officials who made the purchasing

arrangements to facilitate the scheme). Pickett claimed he had other purchasers


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waiting in the wings if the CI did not purchase the offered guns. See United States

v. Stenberg, 803 F.2d 422, 430 (9th Cir. 1986).

      Any concerns about the government’s role in creating the crime were

ameliorated by the defendants’ unprompted and continuous offers to sell firearms,

admissions recorded on tape that they had previously sold firearms and had other

buyers, and the fact that they were brought into the scheme by other defendants.

See Black, 733 F.3d at 305–07.

      Applying the Black factors, the government’s conduct here was not

outrageous. In light of our binding precedent, the government’s conduct in this

case does not violate “fundamental fairness, shocking . . . the universal sense of

justice.” See Shaw, 796 F.2d at 1125 (internal quotation marks omitted); see also

Smith, 924 F.2d at 897; United States v. Simpson, 813 F.2d 1462, 1465–71 (9th

Cir. 1987); United States v. Ramirez, 710 F.2d 535, 539–41 (9th Cir. 1983). The

district court was obligated to follow it.

      2.     Judge Wright’s statements on the record acknowledged, but strongly

and sharply disagreed with, controlling precedent. A judge has a right, and

perhaps a duty, to disagree with and criticize controlling precedent, but does not

have the option to decline to follow it. The appearance of justice would be better

served by reassigning this case to a different judge. See United States v. Kyle, 734

F.3d 956, 967 (9th Cir. 2013).


                                             4
      The district court order dismissing the indictment is REVERSED and

VACATED; and the case is remanded to the district court for further proceedings

with instructions to the Chief United States District Judge 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, VACATED, and REMANDED with instructions.




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