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Note - Lead Us Not Into Temptation: Stash House Stings and the Outrageous Government Conduct Defense


Over the past two decades, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") has helped convict hundreds of individuals by enticing them to commit fictional crimes. These operations, known as "stash house stings," involve the recruitment by undercover agents of suspects to rob a residential house containing large amounts of drugs and money. Every detail of the robbery, however, is a product of the government’s imagination—the stash house itself, the amount of drugs supposedly inside the house, the gang members guarding the house, and of course, the idea to commit the robbery. Although the ATF’s purported focus is on targeting dangerous criminals, in practice these stings often trap poor, minority, low-level offenders with no propensity to commit major drug offenses. Moreover, while the stash house stings draw close to entrapment, in most cases an entrapment defense is unavailable because courts consider willingness to commit the robbery as evidence of predisposition. In recent years, however, an alternative defense has begun to take hold. The “outrageous government conduct” defense is based upon the theory that, regardless of a defendant’s predisposition, certain law enforcement tactics are so inherently shocking that due process principles would bar the government from obtaining a conviction. The Supreme Court, despite its creation of the defense, has failed to establish a set of guidelines for lower courts to use in determining what conduct of law enforcement would be so "outrageous" as to warrant dismissal of an indictment. Accordingly, application of the defense in the lower courts has been unclear. In a series of recent cases arising out of ATF stash house sting indictments, the Ninth Circuit became the first appellate court in the country to specifically identify a set of factors to be used in evaluating a claim of outrageous government conduct. Utilizing these cases as an illustrative tool, this Note proposes an analysis of the outrageous government conduct defense based upon the Ninth Circuit’s six-factor test and suggests that the Supreme Court grant certiorari to articulate an outrageous government conduct defense guided by these factors.