Federal agents who lured suspects into plotting a robbery of a fictitious drug stash house did not commit “outrageous” misconduct, a federal appellate panel ruled Thursday, reversing a district court judge’s finding that the two men’s due process rights were violated when they were nabbed in a sting.

The decision by the U.S. 9th Circuit Court of Appeals reinstates the criminal cases of the Los Angeles-area men -- Antuan Dunlap and Joseph Whitfield -- who had their cases thrown out earlier this year in a rare ruling by Judge Otis D. Wright.

The judge had strongly rebuked the tactics used by the Bureau of Alcohol, Tobacco, Firearms and Explosives to entice the suspects to rob a non-existent house, writing that the sting tempted poor individuals with the promise of a quick payday and that agents had goaded defendants into acquiring weapons for the job.

The three-judge panel of the 9th Circuit wrote that they, like Wright “question[ed] the wisdom” of widely utilizing such sting operations, which often result in hefty sentences triggered by the amounts of drugs the suspects are told are stashed in the fictitious home. But the judges concluded the actions of the agents did not meet the “extremely high standard” required for dismissing the case outright. They said they were bound by previous decisions by the 9th Circuit upholding similar cases.


“The ATF targeted individuals who had already demonstrated an interest in committing robberies, and did little more than ‘set the “bait”’ by inventing a fictitious cocaine stash house they could rob,” the judges wrote.

Thursday’s unpublished decision comes as a growing number of judges around the country have castigated ATF stash house cases. Another district court judge in Los Angeles, Manuel Real, threw out the cases of four men who had already pleaded guilty, finding that the government’s conduct had been “outrageous.”

Three 9th Circuit judges have also been critical in dissenting opinions, writing that the ATF practice verges “close to tyranny” and makes the government “the oppressor of its people.”

The panel, in Thursday’s ruling, also granted prosecutors’ request that the case be reassigned to a different judge. Wright, the appellate judges wrote, indicated that he had made up his mind about what kind of a sentence the defendants should receive when he remarked: “I have it on pretty good terms and from a pretty good source [that the defendant] probably isn’t looking at a lot of time.” He has sentenced a third defendant in the case to 72 months, far lower than the legal guidelines for such an offense.


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