                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,         No. 11-10036
         Plaintiff-Appellee,
                                      D.C. No.
             v.                2:09-cr-01040-MHM-4

CORDAE L. BLACK,
      Defendant-Appellant.



UNITED STATES OF AMERICA,         No. 11-10037
         Plaintiff-Appellee,
                                      D.C. No.
             v.                2:09-cr-01040-MHM-6

ANGEL MAHON,
      Defendant-Appellant.



UNITED STATES OF AMERICA,         No. 11-10039
         Plaintiff-Appellee,
                                      D.C. No.
             v.                2:09-cr-01040-MHM-2

KEMFORD J. ALEXANDER,
      Defendant-Appellant.
2              UNITED STATES V. BLACK

UNITED STATES OF AMERICA,             No. 11-10077
         Plaintiff-Appellee,
                                       D.C. No.
             v.                 2:09-cr-01040-MHM-3

TERRANCE L. TIMMONS,             ORDER DENYING
      Defendant-Appellant.        PETITIONS FOR
                                PANEL REHEARING
                                AND PETITIONS FOR
                                  REHEARING EN
                                      BANC


                  Filed May 2, 2014

     Before: John T. Noonan, Jr., Susan P. Graber,
        and Raymond C. Fisher, Circuit Judges.

                        Order;
              Dissent by Judge Reinhardt
                    UNITED STATES V. BLACK                            3

                           SUMMARY*


                          Criminal Law

    The panel denied petitions for panel rehearing, and denied
petitions for rehearing en banc on behalf of the court, in cases
arising out of a reverse sting operation in which an ATF
undercover agent recruited the defendants to carry out an
armed robbery of a fictional cocaine stash house.

    Judge Noonan voted to grant the petitions for panel
rehearing and recommended granting the petitions for
rehearing en banc.

    Judge Reinhardt, joined by Chief Judge Kozinski,
dissented from the denial of rehearing en banc. He wrote that
the majority opinion sends a dangerous signal that courts will
uphold law enforcement tactics even though their threat to
values of equality, fairness, and liberty is unmistakable.




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

                          ORDER

    Judge Noonan has voted to grant the petitions for panel
rehearing and recommended granting the petitions for
rehearing en banc. Judges Graber and Fisher have voted to
deny the petitions for panel rehearing. Judge Graber has
voted to deny the petitions for rehearing en banc and Judge
Fisher has so recommended.

    The full court was advised of the petitions for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35(f).

   Appellant Cordae L. Black’s petition for rehearing en
banc (No. 11-10036), filed November 5, 2013, is DENIED.

    Appellant Angel Mahon’s petition for panel rehearing and
rehearing en banc (No. 11-10037), filed January 6, 2014, is
DENIED.

    Appellant Kemford J. Alexander’s petition for panel
rehearing and rehearing en banc (No. 11-10039), filed
January 6, 2014, is DENIED.

    Appellant Terrance L. Timmons’ petition for panel
rehearing and rehearing en banc (No. 11-10077), filed
November 6, 2013, is DENIED.

   Judge Reinhardt’s dissent from denial of rehearing en
banc is filed concurrently with this Order.
                  UNITED STATES V. BLACK                       5

Judge REINHARDT, with whom Chief Judge KOZINSKI
joins, dissenting from the denial of rehearing en banc:

    The Black cases arise from a profoundly disturbing use of
government power that directly imperils some of our most
fundamental constitutional values.             An undercover
government agent in Phoenix sent a paid confidential
informant (CI) to randomly recruit “bad guys” in a “bad part
of town” to help rob a non-existent stash house. While
trolling in a bar, the paid CI successfully tempted a randomly-
selected person to participate in the (fictional) crime by
offering him the opportunity to obtain a huge financial
benefit. After the CI put the participant in touch with the
government agent, the agent urged the participant to bring
others into the plot, played the principal role in devising and
executing the imaginary crime, and then walked the
defendants through a script that ensured lengthy prison
sentences for committing a crime that did not exist.

    The Black cases require us to address the limits on how
our government may treat its citizens. They pose the question
whether the government may target poor, minority
neighborhoods and seek to tempt their residents to commit
crimes that might well result in their escape from poverty.
Equally important, these cases force us to consider the
continued vitality of the outrageous government conduct
doctrine itself. The majority opinion decides all of these
issues incorrectly. Further, despite its claims to the contrary,
the majority’s reasoning does virtually nothing to caution the
government about overreaching.            Instead, it sends a
dangerous signal that courts will uphold law enforcement
tactics even though their threat to values of equality, fairness,
and liberty is unmistakable. I therefore dissent from the
court’s decision not to rehear these cases en banc.
6                UNITED STATES V. BLACK

                              I

    The facts are undisputed. See United States v. Black,
733 F.3d 294, 297–301 (9th Cir. 2013). The government sent
a paid CI to Phoenix with instructions to recruit random
persons to help rob a non-existent cocaine stash house.
Following orders, the CI went to bars in “a bad part of town”
and looked for people who seemed to him like “bad guys.”
The CI had not been told to seek out people already engaged
in criminal activity or even persons engaged in suspicious
conduct. Rather, as instructed, he trolled for targets in bars
and eventually encountered Shavor Simpson, who expressed
a willingness to join in the robbery. The CI introduced
Simpson to his handler, Agent Zayas, who posed as a
disgruntled former drug courier. Simpson asserted that he
had criminal experience and introduced Zayas to Cordae
Black. Agent Zayas recruited Simpson and Black, fed them
details about the imaginary target (including the number of
kilos of cocaine to be found in the imaginary stash house),
encouraged them to be sure to bring guns along while
performing their government-created mission, and described
“facts” regarding the stash house in order to convince
Simpson to involve more people in their plan (this is how
Defendants Alexander, Mahon, and Timmons got involved).
Agent Zayas told the defendants when to meet and where to
go. Black contributed to the planning of the offense, but the
scheme was of the government’s devising. When the
defendants met with Agent Zayas in preparation for the
robbery, he led them to a warehouse where they were
arrested.

    The entire operation was, of course, a fiction. Agent
Zayas had created an elaborate crime-script and the
defendants had followed it under his sustained and careful
                  UNITED STATES V. BLACK                      7

supervision. All Agent Zayas had to do was send his CI to a
“bad” part of town in search of “bad” guys, leaving the choice
of targets entirely to his CI’s prejudices and intuitions. Sure
enough, after testing a number of people to see if they would
be willing to commit a crime that would allow them to make
a great deal of money, the CI had his first success. From
there on the government’s scheme proceeded as planned.

                              II

    The Black cases present important questions about our
constitutional values. As we have long recognized, the Due
Process Clause requires us to dismiss the indictment in
“extreme cases in which the government’s conduct violates
fundamental fairness.” United States v. Stinson, 647 F.3d
1196, 1209 (9th Cir. 2011) (citation omitted). In other words,
a conviction must fall where “the conduct of law enforcement
agents is so outrageous that due process principles would
absolutely bar the government from invoking judicial
processes to obtain a conviction.” United States v. Russell,
411 U.S. 423, 431–32 (1973). Here, the government’s
conduct ran afoul of several fundamental constitutional
principles and, thus, the convictions cannot stand.

    One of the most serious problems with the law
enforcement tactics used in the Black cases is that they
present a direct threat to the fundamental principle of racial
equality. It is deeply disturbing that Agent Zayas sent his
paid CI to look for “bad guys” in a “bad part of town,” i.e. in
a minority neighborhood. In an age of widely-reported
unequal enforcement of the criminal laws, both at the state
and federal levels, the sort of assignment given to the CI is an
open invitation to racial discrimination—especially given the
complete absence of any effort by Agent Zayas to aim the
8                     UNITED STATES V. BLACK

operation at known or suspected criminals.1 See, e.g., Floyd
v. City of New York, 959 F. Supp. 2d 540, 560 (S.D.N.Y.
2013), appeal dismissed (Sept. 25, 2013) (Scheindlin, J.)
(finding discriminatory enforcement by police of stop and
frisk policies in New York City); Michelle Alexander, The
New Jim Crow: Mass Incarceration in an Age of
Colorblindness 9 (2010); Bruce Western, Punishment and
Inequality in America 3 (2006). The manifest danger of
racial discrimination inherent in the law enforcement tactics
used here is an important part of why “random,” suspicionless
dragnets that test people for their willingness to break the law
are offensive to the Constitution. Cf. United States v.
Armstrong, 517 U.S. 456, 483 (1996) (Stevens, J., dissenting)
(warning against “the danger of arbitrary enforcement” of the
drug laws and invoking “the need for careful scrutiny of any
colorable claim of discriminatory enforcement”). The Due
Process Clause protects many of our rights, including the
right be free from the use of law enforcement tactics that are
inherently racially discriminatory. See Bolling v. Sharpe,
347 U.S. 497, 499 (1954) (“[T]he concepts of equal
protection and due process, both stemming from our
American ideal of fairness, are not mutually exclusive. The
‘equal protection of the laws’ is a more explicit safeguard of
prohibited unfairness than ‘due process of law,’ . . . [b]ut, as
this Court has recognized, discrimination may be so
unjustifiable as to be violative of due process.”).

    A similar analysis also applies to socio-economic
discrimination. Cf. Little v. Streater, 452 U.S. 1 (1981);
Roberts v. LaVallee, 389 U.S. 40 (1967); Harper v. Virginia


    1
   It is not surprising that the record before us reveals that all of the Black
defendants are in all likelihood black, although it is possible that one or
more is Hispanic.
                    UNITED STATES V. BLACK                              9

Bd. of Elections, 383 U.S. 663 (1966); Douglas v. People of
State of Cal., 372 U.S. 353 (1963); Griffin v. Illinois,
351 U.S. 12 (1956).2 The danger of tempting otherwise law-
abiding people into crime through reverse stings is
substantially heightened when the government takes aim at
poor neighborhoods and tempts their residents with the
prospect of making large amounts of money through criminal
activity.3 See Black, 733 F.3d at 313 (Noonan, J., dissenting)
(“‘Lead us not into temptation’ is part of a prayer familiar to
many. But few, I believe, would think of this prayer as
addressed to the government of the United States or would
think it necessary to address the government with such a
request.”). At the right moment and when described in
attractive enough terms, such offers may lead astray
otherwise law abiding young men living in poverty, and
motivate them to make false or exaggerated claims about
their qualifications to serve as participants in the proposed
venture—including claims about prior criminal experience
that lack any substantial basis in truth. But it is not just
individuals without any record with whom we must be
concerned. In poor minority areas, there are many young
men who, during their teenage years, have committed some
non-violent or comparatively minor offenses, and who may
be particularly susceptible to the government’s suggestion
that they engage in more serious criminal conduct. See
generally Paul Butler, Let’s Get Free: A Hip-Hop Theory of

  2
    See also, e.g., United States v. Burgum, 633 F.3d 810, 815 (9th Cir.
2011) (holding that “the Constitution prohibits imposition of a longer
prison term based on the defendant’s poverty”).
  3
   “A ‘reverse sting’ occurs when the government initiates the criminal
conduct, setting up a fictitious crime and arresting the criminals as they
begin to carry out what they believe is a real crime.” Black, 733 F.3d at
313 n.1.
10                UNITED STATES V. BLACK

Justice (2010). These young men may yet become
productive, successful members of society, or their lives may
be forever changed for the worse should they succumb to the
government’s blandishments.

    The latter scenario is particularly likely in these difficult
times of swiftly rising economic inequality and alarming
levels of unemployment. See Joseph Stiglitz, The Price of
Inequality: How Today’s Divided Society Endangers Our
Future (2013). According to one economist, American
income inequality has “been increasing steadily since the
1970s, and now has reached levels not seen since 1928.”
Drew Sesilver, U.S. Income Inequality, On Rise For Decades,
Is Now Highest Since 1928, Pew Research Center (Dec. 5,
2013). Many other studies confirm a vast expansion in
inequality. See, e.g., Estelle Sommeiller & Mark Price, The
Increasingly Unequal States of America, Economic Policy
Institute (2014); Inequality, Growing Apart, Economist (Sept.
21, 2013). That disparity translates into many other
inequalities in American life, including in the criminal justice
system. See, e.g., David Cole, No Equal Justice: Race and
Class in the American Criminal Justice System 8 (1999)
(“Police officers routinely use methods of investigation and
interrogation against members of racial minorities and the
poor that would be deemed unacceptable if applied to more
privileged members of the community.”). Under the present
economic circumstances, it is more important than ever to
recall that reverse sting operations like the one we consider
here are perilous to freedom, especially when they are aimed
at the poorest amongst us and backed by the promise of
immediate wealth. Just as “the Constitution doesn’t prefer
the rich over the poor,” United States v. Pineda-Moreno,
617 F.3d 1120 (9th Cir. 2010) (Kozinski, J., dissenting from
denial of rehearing en banc), it does not leave the
                    UNITED STATES V. BLACK                           11

impoverished defenseless against outrageous and unnecessary
law enforcement tactics designed to prey on their unique
vulnerabilities.

    These concerns of fairness and equality are heightened by
the pressing threat that these sorts of extraordinary tactics
pose to liberty. The government verges too close to tyranny
when it sends its agents trolling through bars, tempts people
to engage in criminal conduct, and locks them up for
unconscionable periods of time when they fall for the scheme.
Certainly, such tactics create a relationship between
government and governed at odds with the premises of our
democracy—a relationship more like that depicted in George
Orwell’s 1984 or Philip K. Dick’s The Minority Report.4 As
Justice Sotomayor has warned, “[a]wareness that the
Government may be watching chills associational and
expressive freedoms” and “may alter the relationship between
citizen and government in a way that is inimical to
democratic society.” United States v. Jones, 132 S. Ct. 945,
956 (2012) (Sotomayor, J., concurring) (quotation marks and
citation omitted). What is true of the government’s watching
is also true of the government’s sending undercover agents
into certain neighborhoods to see if their inhabitants can be
tempted to engage in conduct that leads them to prison. The
Due Process Clause forbids the tactics used here not only on
grounds of equality and fairness, but also because widespread



  4
     As the majority concedes, “The risk inherent in targeting such a
generalized population is that the government could create a criminal
enterprise that would not have come into being but for the temptation of
a big payday, a work of fiction spun out by government agents to persons
vulnerable to such a ploy who would not otherwise have thought of doing
such a robbery.” Black, 733 F.3d at 303.
12                   UNITED STATES V. BLACK

use of such law enforcement practices would chill the
exercise of many of our liberties.

     In this era of mass incarceration, in which we already lock
up more of our population than any other nation on Earth, it
is especially curious that the government feels compelled to
invent fake crimes and imprison people for long periods of
time for agreeing to participate in them—people who but for
the government’s scheme might not have ever entered the
world of major felonies.5 Of course, the government also
controls the (often extraordinarily long) amount of time that
its targets spend in prison after reverse sting operations, as it
can specify the amount of drugs involved in the fake
conspiracies. See United States v. Kindle, 698 F.3d 401, 414
(7th Cir. 2012) (Posner, J., concurring and dissenting),
reheard en banc sub nom United States v. Mayfield (7th Cir.
Apr. 16, 2013) (condemning fictitious stash house stings as
a “disreputable tactic” because “[l]aw enforcement uses them
to increase the amount of drugs that can be attributed to the
persons stung, so as to jack up their sentences”). Do we
really need to add to the extraordinary number of our youth
whom we now imprison those our government can induce to
commit fictious crimes? Do we really need to make felons
out of those who are susceptible but have not yet committed
serious offenses (and might not ever do so)? Wouldn’t it be
more consistent with our constitutional values for the
government to provide positive social programs, such as
education, anti-drug, job-training, and housing services, that
help prevent crime rather than to conjure up plots that
encourage disadvantaged minority youth to join the large
number of their cohort who are already serving long periods
of incarceration? See, e.g., Jonathan Simon, Governing

 5
     On mass incarceration, see generally Alexander, The New Jim Crow.
                 UNITED STATES V. BLACK                     13

Through Crime (2007). Reverse sting operations of the sort
used in this case, aimed at people who look “bad” in “bad
parts of town,” are one of the most extreme and chilling
manifestations of an overzealous criminal system that too
often fails to respect the boundaries of law, good public
policy, and simple decency. See William J. Stuntz, The
Collapse of American Criminal Justice (2011).

     Whatever the motivation for the law enforcement conduct
under review here and however effective that conduct may be
at leading to the arrest of actual or potential criminals, the
Constitution does not allow the tactics employed by the
government. Cf. Maryland v. King, 133 S. Ct. 1958, 1989
(Scalia, J., dissenting) (“Solving unsolved crimes is a noble
objective, but it occupies a lower place in the American
pantheon of noble objectives than the protection of our people
from suspicionless law-enforcement searches.”).           The
outrageous government conduct doctrine is thus like the many
other constitutional rules meant to protect liberty that limit
law enforcement and require us to invalidate improper
government conduct even when it has led to a
conviction—even when it has been “bad people” whose rights
have been violated. See, e.g., Miranda v. Arizona, 384 U.S.
436 (1966); Rogers v. Richmond, 365 U.S. 534 (1961); Mapp
v. Ohio, 367 U.S. 643 (1961). When the government decides
to troll through poverty-stricken neighborhoods, ordering its
agents to seek out people who look “bad” and test them at
random for willingness to break the law in order to obtain
large sums of money, its conduct is unacceptable.

    Fundamental principles of justice place the tactics used by
the government in the Black cases squarely out of bounds.
See Greene v. United States, 454 F.2d 783 (9th Cir. 1971).
Accordingly, the indictment should be dismissed.
14                  UNITED STATES V. BLACK

                                   III

    Pre-Black precedent construed the constitutional
command regarding outrageous government conduct in a
wholly different manner than does the majority. In case after
case, we remarked that the government violates the
Constitution when it uses artifice to cause a crime and to
shape the nature and planning of that crime while targeting
people who are not already known to be involved in a
continuing series of similar crimes. See, e.g., United States
v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008); United
States v. Bonanno, 852 F.2d 434, 437–38 (9th Cir. 1988). As
Judge Noonan explains in his thorough and persuasive
dissent, application of that rule requires dismissal of the
indictment in these cases.

    The majority, recognizing the force of these arguments,
repeatedly concedes that the government’s conduct was, at
best, of doubtful validity under our precedents. It nonetheless
upholds the law enforcement tactics by inventing a new,
nebulous six-factor test for outrageous government conduct.
In its analysis, the majority places seemingly controlling
weight on two factors that have never before played a
significant role in our doctrine: (1) boasting by the defendants
about their prior criminal activity, none of which was ever
confirmed by the government during the reverse sting
operation; and (2) unsupported assertions by the government
that it deemed this kind of operation to be more effective at
fighting stash house robberies than the traditional means of
doing so.6 While purporting to adhere to precedent, this


  6
    The majority also suggests that the government’s conduct was not
outrageous because Agent Zayas did not exercise complete control over
every aspect of the reverse sting. Our cases, however, have never required
                     UNITED STATES V. BLACK                            15

reasoning takes a significant step beyond the limits on
government conduct that we have previously described,
opening the door to conduct that the Constitution does not
allow.

    The panel first errs by asserting that what may have been
pure puffery by Simpson and Black about experience with
crime justified the government’s conduct. Before the Black
cases, we insisted that the government use such tactics only
against known or suspected criminals, persons for whom, at
the very least, there is reasonable cause for suspicion. See,
e.g., United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.
2003) (placing decisive weight on the fact that “the
government did not initiate the criminal activity, but rather
sought to crack an ongoing operation”). That limit on
purportedly “random” police dragnets in vulnerable
communities helped to prevent abuses forbidden by the
Constitution.7 See supra Part II. Here, by emphasizing some


total control or outright coercion. Here, the government created the
scenario, described the kind of robbery it wanted of the defendants, urged
Simpson and Black to involve more of their colleagues, and worked with
the defendants to shape the details of the planned operation. This level of
influence and control is more than enough to demonstrate intimate
government involvement in the development of the criminal scheme. See
Greene, 454 F.2d at 787 (“We do not believe the Government may
involve itself so directly and continuously over such a long period of time
in the creation and maintenance of criminal operations, and yet prosecute
its collaborators.”).
  7
    The majority thus takes a substantial step beyond our precedent in
upholding police conduct where, by its own description, “the government
created the proposed crime, initiated contact with the defendants through
the CI’s approach at the Glendale bar, and set the bait—all without any
previous individual suspicion—or even knowledge—about the defendants’
criminal history or activities.” Black, 733 F.3d at 306.
16                UNITED STATES V. BLACK

unsupported boasting by two of the defendants as a
significant factor in its analysis, the majority takes a long and
unjustified step away from our precedent. Mere puffery by
a person who has been approached at random in a bar is not
the same as evidence that the target is involved in criminal
activity—especially where the government has suggested to
him that he join in unlawful conduct that would free him from
his economic bonds. The fact that some people questioned at
random may show interest and then make statements
designed to enhance their credibility as potential conspirators
does not make the underlying government conduct any less
outrageous, especially where there is no evidence that these
boasts are true and where the government makes no effort to
check them.

    The panel majority also errs in relying uncritically on the
government’s professed need for the use of its tactic. The
government may not engage in outrageous conduct that
violates the Due Process Clause merely because it asserts that
doing so will advance law enforcement goals. This is a
familiar rule in our criminal procedure jurisprudence. Our
nation has spent decades engaged in a so-called “War on
Drugs” and, for just as long, has struggled mightily to combat
narcotics trafficking. Nonetheless, we have never held that
the difficulties of preventing narcotics crime justify or excuse
constitutional violations—and we should not do so now.
Inevitably, that logic points the way to a string of government
affidavits insisting that one or another hitherto illegal tactic
must be upheld as important to the achievement of law
enforcement objectives. Further, while reverse sting
operations may sometimes be a useful tool in the police
arsenal, the majority does not explain why these operations
would be inadequate if confined to targets known or
suspected to be involved in ongoing criminal activity. It is
                  UNITED STATES V. BLACK                      17

both extreme and implausible to assert that the only solution
to narcotics related crime is random good-citizenship tests of
people who look like “bad guys” in a “bad part of town.”

     Ultimately, the most dangerous aspect of the majority
opinion is that it virtually eliminates constitutional limits on
outrageous government conduct. The majority reports that it
is “troubled” and “concerned,” that “the risks we have
identified in such a government-created fictional operation
are not to be taken lightly,” but that other considerations play
some unspecified role in helping to “mitigate[]” those
worries. It justifies this result by emphasizing that it is
looking to the totality of the circumstances. If ‘totality of the
circumstances’ is to have any meaning at all, however, we
cannot let each panel select its own “factors,” whether listed
in prior cases or not, and then conclude that in light of the
factors it has chosen the totality of the circumstances is not
enough to render the government’s conduct outrageous. That
is particularly true where, as here, on an objective analysis of
the six factors distilled from our prior cases by the panel, the
first five support a finding of a constitutional violation and
the sixth simply misstates our prior law. Under the panel’s
approach there would never be limits established on the
government’s flouting of the fundamental rights of its
citizens. In fact, its reasoning could easily be invoked in
support of similar reverse stings that result in the conviction
of individuals who do not brag of prior criminal experience
and who lack any criminal history at all. Thus, while the
defendants here may truly be bad guys, the tactics and
doctrine the majority endorses pose a threat to constitutional
values that extend far beyond the facts of this particular
reverse sting.
18               UNITED STATES V. BLACK

    The true lesson of the Black cases is that judges may
express concern about shocking police tactics, but will
ultimately uphold them—and that the outrageous government
conduct doctrine has little or no continued vitality in this
Circuit. We should therefore have reheard this case en banc
to make clear what our pre-Black precedent already states: the
law enforcement tactics used here are unacceptable under the
Constitution.

                             IV

    As Judge Noonan warns in his dissent, “Today, our court
gives our approval to the government tempting persons in the
population at large currently engaged in innocent activity and
leading them into the commission of a serious crime, which
the government will then prosecute.” See Black, 733 F.3d at
313 (Noonan, J., dissenting). These cases demonstrate the
government’s willingness to infringe upon values of equality,
fairness, and liberty in its reverse sting operations, and to
employ law enforcement tactics that cross the line established
by the Due Process Clause. The panel majority erred in
upholding the conduct in which the government engaged
here, both in light of our precedent and as a matter of
constitutional principle. I therefore dissent.
