Thursday, December 5, 2013

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Ninth Circuit Rules:

Government Use of Violent Felon Informant Not Misconduct

By JUSTIN LEVINE, Staff Writer

The government did not violate a defendant’s due process rights by outrageous conduct in collaborating with a confidential informant who had a history of violent felonies in order to pursue the defendant, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Writing for a unanimous panel, Senior Judge J. Clifford Wallace said that the fact that a confidential informant has engaged in past crimes does not raise due process concerns for a defendant when the government uses the informant in an investigation.

The case stemmed from the conviction of Brandon Hullaby who was charged with conspiracy to possess and distribute over five kilograms of cocaine along with the unlawful possession of a firearm in furtherance of the conspiracy.

Hullaby was arrested in Phoenix by ATF agents involved in a sting operation.

The sting involved a scheme to rob a fictional cocaine stash house. Hullaby had agreed to enter the house with three others in order to subdue various guards that undercover ATF agents said would be present there, according to testimony.

During the operation, agents utilized a government informant named Pablo Cortina, a felon who had previously participated in a string of violent home-invasion robberies. Cortina had belonged to a gang of criminals who raided homes while being dressed in law enforcement uniforms and armed with AK-47s, shotguns, and other weapons.

Using a stolen law enforcement battering ram to break down locked front doors, Cortina and his cohorts would forcibly subdue and bind any residents found in the houses before stealing their possessions.

After being named in a 115-count indictment and facing the possibility of a life sentence, Cortina informed on his associates in return for being able to plead guilty to only one felony that resulted in a four-year probationary sentence by a state court.

Less than a month after his sentence, he was caught stealing from his employer. In order to escape jail time which would potentially put him in close contact with the people he had informed on, Cortina offered to disclose further information concerning new home-invasion robberies in the Phoenix area.

Over the objection of Cortina’s probation officer, ATF agents registered him as one of their confidential informants. He then participated in their sting operation by meeting with Hullaby to help plan the stash house operation.

Hullaby was eventually arrested after gathering with Cortina and undercover agents in a parking lot the day he thought the robbery was supposed to take place.

In attacking his conviction, Hullaby argued that government officials violated his due process rights by collaborating with, in his words, “a repeat violent home-invader whose motivation in spurring the government to create this fictional offense was to continue to avoid accountability for his own heinous crimes.”

He said that the agents’ work with Cortina constituted “outrageous conduct” that amounted to a violation of his rights.

Wallace disagreed.

Quoting United States v. Smith, (9th Cir. 1991) 924 F.2d 889, Wallace said:

“For a due process dismissal, the government’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice.”

Saying the “extremely high standard” is rarely met, Wallace wrote that the fact that the government used an informant with a criminal record is not enough, nor were the specific crimes committed by Cortina so outrageous that the government should have been sanctioned for using him.

He said the government was not required to enlist people with clean records in order to help apprehend other serious criminals, and further explained that Cortina’s criminal background was the very reason that made him useful to the federal agents in their efforts to make the arrest.

Wallace also said that it was irrelevant that Cortina was only cooperating in order to get a lesser punishment for his own misdeeds.

“We do not require the government to recruit solely informants who will work in a spirit of altruism for the good of mankind,” he wrote.

The decision stated that this conclusion was consisted with the Ninth Circuit’s precedent in the case of United States v. Simpson, (9th Cir. 1987) 813 F.2d 1462, which held that the government was not obligated to stop using a confidential informant based solely on the fact that she continued to use heroin and engage in prostitution during a police investigation.

Wallace said that even though “[i]t may be surprising that Cortina was given only four years of probation by the state court after being charged with very serious crimes,” that fact did not help Hullaby since the court was not reviewing Cortina’s sentence for “outrageousness.”

The case is United States v. Hullaby, 11-10118.