United States v. Tavon Pickett ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50417
Plaintiff-Appellant, D.C. No.
2:16-cr-00468-ODW-1
v.
TAVON DEJUAN PICKETT, AKA Bucket MEMORANDUM*
and ROBERT ENNIS GOREE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted June 7, 2018
Pasadena, California
Before: TALLMAN and NGUYEN, Circuit Judges, and BENNETT,** District
Judge.
The United States appeals the district court’s pretrial dismissal of the
indictment against Tavon Pickett and Robert Goree on the grounds of outrageous
government conduct. This case stems from an undercover operation by the Bureau
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) where a confidential
informant (“CI”) purchased fifty-nine firearms from Pickett, Goree, and other
members of the Mona Park Crips gang in Compton, California. We have
jurisdiction under 28 U.S.C. § 1291. We reverse, vacate the order of dismissal,
and order reassignment to a different district judge.
1. The district court erred in concluding that the government’s conduct
met the “extremely high standard” to dismiss the indictment. United States v.
Garza-Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (quoting United States v. Smith,
924 F.2d 889, 897 (9th Cir. 1991)). The government’s conduct here does not go
beyond the bounds of what we found acceptable in United States v. Black, 733
F.3d 294 (9th Cir. 2013). Each of the six Black factors weighs in favor of finding
that the government’s conduct in Mona Park was not outrageous. Id. at 303.
The CI solicited the purchase of firearms in Mona Park, and Pickett and
Goree “responded with enthusiasm.” Id. at 307. Whether or not Pickett and Goree
had ever dealt in firearms before, they both sold firearms to the CI “willingly and
without pressure.” See Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986). As
in United States v. Pedrin, Pickett and Goree were brought into the crime by co-
conspirators, not the government, and readily agreed to participate in the sale of
firearms. 797 F.3d 792, 797 (9th Cir. 2015). The actions of Pickett and Goree are
sufficient to satisfy the individualized suspicion factor.
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In determining the nature of the government’s involvement, courts look to
the duration, nature of the participation, and necessity of the government’s
participation in the criminal enterprise. Black, 733 F.3d at 308–09. Here, ATF
purchased firearms from Pickett and Goree for less than a year. Cf. Greene v.
United States, 454 F.2d 783, 786 (9th Cir. 1971) (finding an operation that lasted
over two years was “of [an] extremely long duration”).
“The extent to which the government encouraged a defendant to participate
in the charged conduct is important, with mere encouragement being of lesser
concern than pressure or coercion.” Black, 733 F.3d at 308. There is no evidence
of government coercion or pressure here. “[T]he government proposed the
[firearms sales], and the defendants eagerly jumped at the opportunity.” Id.
The government’s involvement after the initial offer was minimal. Pickett
and Goree approached the CI about purchasing their firearms, they found the
source of arms in Arizona, they proposed the prices and available guns, and they
facilitated the purchases at Goree’s house.
Finally, Pickett and Goree had all the skills and expertise necessary to
conduct illegal firearms sales. Goree had a source of firearms in Arizona and
extensive knowledge about guns. Cf. United States v. Twigg, 588 F.2d 373, 376
(3d Cir. 1978) (noting that it was government officials who made the purchasing
arrangements to facilitate the scheme). Pickett claimed he had other purchasers
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waiting in the wings if the CI did not purchase the offered guns. See United States
v. Stenberg, 803 F.2d 422, 430 (9th Cir. 1986).
Any concerns about the government’s role in creating the crime were
ameliorated by the defendants’ unprompted and continuous offers to sell firearms,
admissions recorded on tape that they had previously sold firearms and had other
buyers, and the fact that they were brought into the scheme by other defendants.
See Black, 733 F.3d at 305–07.
Applying the Black factors, the government’s conduct here was not
outrageous. In light of our binding precedent, the government’s conduct in this
case does not violate “fundamental fairness, shocking . . . the universal sense of
justice.” See Shaw, 796 F.2d at 1125 (internal quotation marks omitted); see also
Smith, 924 F.2d at 897; United States v. Simpson, 813 F.2d 1462, 1465–71 (9th
Cir. 1987); United States v. Ramirez, 710 F.2d 535, 539–41 (9th Cir. 1983). The
district court was obligated to follow it.
2. Judge Wright’s statements on the record acknowledged, but strongly
and sharply disagreed with, controlling precedent. A judge has a right, and
perhaps a duty, to disagree with and criticize controlling precedent, but does not
have the option to decline to follow it. The appearance of justice would be better
served by reassigning this case to a different judge. See United States v. Kyle, 734
F.3d 956, 967 (9th Cir. 2013).
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The district court order dismissing the indictment is REVERSED and
VACATED; and the case is remanded to the district court for further proceedings
with instructions to the Chief United States District Judge that this case be
randomly reassigned to a different judge in accordance with the local rules and
general orders of the Central District of California.
REVERSED, VACATED, and REMANDED with instructions.
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