                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 11-10623
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:09-cr-02073-
                                          CKJ-GEE-2
ALEX JOSEPH PEDRIN, JR., AKA
Alex Pedrin, Jr.,
                Defendant-Appellant.        ORDER


               Filed November 23, 2015

     Before: John T. Noonan, William A. Fletcher,
         and Morgan Christen, Circuit Judges.

                        Order;
              Statement by Judge Noonan
2                   UNITED STATES V. PEDRIN

                           SUMMARY*


                          Criminal Law

    The panel denied on behalf of the court a petition for
rehearing en banc in a case in which the panel, affirming a
conviction and sentence for conspiracy to possess with intent
to distribute cocaine, held that the defendant’s prosecution
did not result from outrageous government conduct.

    Judge Noonan wrote separately to recommend granting
the petition for rehearing en banc. He wrote that because the
government employed psychological pressure in luring the
defendant into planning to commit the crime and the
government could not prove the defendant’s disposition to
commit such a crime beyond a reasonable doubt, the petition
for rehearing en banc should be granted to consider whether
the defendant was entrapped.


                              ORDER

    The panel has voted to deny the petition for rehearing
en banc. Judges W. Fletcher and Christen have voted to
deny the petition for rehearing en banc. Judge Noonan
recommends that the petition be granted.

    The full court has been advised of the petition for
rehearing en banc and no judge of the court has requested a


  *
    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. PEDRIN                      3

vote on whether to rehear the matter en banc. Fed. R. App. P.
35.

   The petition for rehearing en banc, filed October 15,
2015, is DENIED.



NOONAN, Circuit Judge, writing separately to recommend
granting the petition for rehearing en banc:

    Pedrin argues in his petition for rehearing en banc that the
government entrapped him; as set forth in my dissent, United
States v. Pedrin, 797 F.3d 792, 797–800 (9th Cir. 2015), I
agree. Additional factors further support Pedrin’s claim and
I bring them to the forefront here.

    The government is guilty of entrapment when it lures a
person into committing a crime that he was not predisposed
to commit. Sorrells v. United States, 287 U.S. 435, 445
(1932). The United States Supreme Court has recognized that
when officers of the law engage in this conduct it is
“unconscionable, contrary to public policy, and to the
established law of the land . . . .” Id. at 444–45 (1932).

    Pedrin asserts that the government lured him into a plan
to rob a fictitious stash house by dangling before him a
scheme that was “rich in pay off,” and involved little work or
risk. He further asserts that the government could not
establish beyond a reasonable doubt that he was predisposed
to participate in the scheme because at the time the
government approached him, it had no evidence supporting
such a predisposition. Jacobson v. United States, 503 U.S.
540, 549 (1992) (holding that the government must prove
4                 UNITED STATES V. PEDRIN

predisposition beyond a reasonable doubt prior to the
government’s having approached defendant).

    When the government puts psychological pressure on
persons to commit a crime this pressure militates towards a
finding of entrapment. In Sorrells, for example, the Court
focused on the fact that the government agent was, like
Sorrells, a war veteran who relied on this status in order to
pressure Sorrells into getting him liquor. 287 U.S. 435,
440–41 (1932). In Sherman v. United States, the Court
emphasized the psychological pressure the government put on
Sherman by relying on an informant who was, like Sherman,
a recovering drug addict and who “resort[ed] to sympathy” to
persuade Sherman to buy drugs. 356 U.S. 369, 373 (1958). In
Jacobson, the Court focused on the psychological pressure
the government put on Jacobson by repeatedly sending him
mailings tempting him to purchase the illegal materials.
503 U.S. at 550.

     Here, the government similarly relied on psychological
tricks to persuade Pedrin to participate in the crime. First, the
confidential informant was co-defendant Omar Perez’s uncle,
and therefore someone to whom Perez and Pedrin, a close
friend of Perez’s, were more likely to succumb than they
otherwise might. Second, the informant-uncle peer pressured
Pedrin and Perez by telling them that the government agent
was “very cool people,” that he, the informant, “want[ed] to
do the job,” and that if they could not do it, he would find
people who could. Third, the government put time pressure
on defendants by telling them the opportunity was available
to them for only a limited period. Finally, the government
agent eliminated some of the moral qualms defendants may
have had about the drug dealers they were planning to rob by
telling them that he had “no love” for the dealers and that
                 UNITED STATES V. PEDRIN                      5

they were cheating him out of his fair share of the profits
from their business. These psychological tactics no less
induced defendants to participate in the reverse sting than did
the tactics employed by the government in Sorrells, Sherman,
or Jacobson.

    Regarding Pedrin’s predisposition to participate in the
scheme, not only did the government know nothing about him
when they approached him, nothing in his record suggests
that he was apt to commit a crime like this one. Pedrin was in
and out of the juvenile system, and as an adult served time in
jail for several misdemeanors. Pedrin had two felony
convictions, one for being “belligerent to officers while being
booked into jail,” and another for the crime of endangerment
for which he served a prison sentence of a little over one year.

    Pedrin’s record contains no crimes related to dealing
cocaine, robberies, or home invasions. The only evidence
supporting that Pedrin previously committed a stash house
robbery is the testimony of co-defendant Terry Bombard who
was more than ten years older than twenty-four-year-old
Pedrin and who testified against him in exchange for a deal
of ten years instead of a life sentence. The government
offered no evidence independently corroborating Bombard’s
testimony. On these facts, Bombard’s assertions that Pedrin
previously committed stash house robberies would likely not
be proven beyond a reasonable doubt.

    Because the government employed psychological
pressure in luring Pedrin into planning to commit the crime,
and because the government could not prove his disposition
to commit such a crime beyond a reasonable doubt, I
recommend granting the petition for rehearing en banc to
consider whether Pedrin was entrapped.
