                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50227

              Plaintiff - Appellant,             D.C. No. 2:13-cr-00751-R-2

  v.
                                                 MEMORANDUM*
RENE FLORES, Reg # 66708-112; et al.,

              Defendants - Appellees.



UNITED STATES OF AMERICA,                        No. 14-50356

              Plaintiff - Appellant,             D.C. No. 2:13-cr-00751-R-1

  v.

JOE ROBERTS, Reg # 66711-112,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                  Submitted May 5, 2016**
                                    Pasadena, California

Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.

      The United States appeals the district court order dismissing indictments

against Rene Flores, Randy Garmon, Arturo Cortez, and Joe Roberts

(“Defendants”) on the basis of outrageous government conduct. Defendants were

arrested as the result of a reverse-sting operation conducted by the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”), in which Defendants

conspired to rob a fictional cocaine stash house. We reverse and remand to a

different district court judge.

1.    The district court erred by sua sponte dismissing the indictments against

Defendants on the basis of outrageous government conduct without first notifying

the parties of its concerns and permitting them an opportunity to submit a written

memorandum on the issue. See Wong v. Bell, 642 F.2d 359, 361–62 (9th Cir.

1981). However, the district court’s error was harmless, because it requested




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.

                                            -2-
additional briefing on two occasions. Each time, the parties voluntarily addressed

outrageous government conduct in their briefing.

2.    The district court erred by 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

continue to question the wisdom of permitting expanded use of these types of

reverse-sting operations. However, we are bound by prior decisions holding that

factually indistinguishable reverse-sting operations were permissible. See id. at

304–10; United States v. Williams, 547 F.3d 1187, 1201 (9th Cir. 2008).

      The government’s conduct here is not more outrageous than what we found

acceptable in Black. As in Black, the government used a confidential informant to

identify individuals who would be interested in committing a stash house robbery.

The confidential informant pitched the idea to Roberts after Roberts mentioned he

had spent time in prison, thus “set[ting] the bait.” Black, 733 F.3d at 306. Roberts

took the bait and compiled a crew “without further inducement by the

government.” See id. at 307 (emphasis omitted) (quoting United States v.

Bagnariol, 665 F.2d 877, 882 (9th Cir. 1981) (per curiam)). Defendants

“responded with enthusiasm,” eagerly planning the details of the robbery based on


                                         -3-
the fictional scenario crafted by the ATF agent. See id. Defendants were arrested in

the possession of guns, a concussion grenade, gloves, and ski masks just moments

before the robbery scheme was to be enacted.

3.    The district court erred by sua sponte vacating Roberts’s guilty plea. A

district court does not have discretion to vacate a guilty plea after the plea has been

accepted by the court. See United States v. Patterson, 381 F.3d 859, 865 (9th Cir.

2004). Only Roberts could withdraw his guilty plea, and Roberts does not appear

to have filed a formal motion requesting withdrawal. Even if Roberts had made

such a motion, we would still find that the district court abused its discretion in

granting withdrawal of the plea, in light of the district court’s clear disregard for

our controlling decision in Black. Thus, the guilty plea stands.

4.    Remand to a different district court judge is proper when, as here, the district

court judge cannot “be expected to follow this court’s dictates” and “reassignment

is advisable to maintain the appearance of justice.” United States v. Kyle, 734 F.3d

956, 966–67 (9th Cir. 2013) (quoting United States v. Lyons, 472 F.3d 1055, 1071

(9th Cir. 2006)). From the beginning, the district court judge expressed strong

opinions regarding the government’s conduct in this case, including accusing the

government of fabricating evidence without any evidence in the record to support




                                           -4-
that accusation. Further, he pointedly disregarded the majority opinion in Black.

Thus, reassignment is warranted.

      REVERSED and REMANDED with instructions to reassign to a different

district court judge.




                                         -5-
