Petition for Writ of Certiorari — Jose Camargo-Alejo, aka Jessica Camargo-Alejo, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JESSICA (JOSE) CAMARGO-ALEJO,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petition for Writ of Certiorari

Harini P. Raghupathi

Federal Defenders of San

Diego, Inc.

225 Broadway Street,

Suite 900

San Diego, California

92101

619.234.8467

Harini_Raghupathi@fd.org

Counsel for Petitioner

QUESTION PRESENTED

Following this Court’s adoption of a subjective theory of entrapment in

Sorrells v. United States, 287 U.S. 435 (1932), and progeny, may a court decline to

instruct a jury on an entrapment defense because the government agents did not

objectively intend to induce a crime?

prefix

TABLE OF CONTENTS

Page

QUESTION PRESENTED 1.00... ..cccccccccccccceeensnseceesesesseeseeccecesecesseseeseseceesusseceeserensas prefix

TABLE OF AUTHORITIES becceseceseeseseceseecsecaeceaeceseceseessceceacessaeesaeteeteceseeseeeeestenseeesatens il

OPINION BELOW... eee eeeeeeeeeees Laseescesseecseeseneesseceneeceacecceeeaeeseeeeeesearecsaeeeseeeaes 1

JURISDICTION... ec cecccceeeneeeesaeeecnaeeeseneecsseeesseecsseesesseseseseessseeeesseecessesesssteessecees 1

PERTINENT STATUTORY PROVISIONS... ceeceeeceeeceesseessseeesseeseeeseeesseeseseesseessaes 1

INTRODUCTION o.oo cece cesecsnecssceeeeeesseecncessaeeseeeeseeensecsseeenseesseeenseeeseeeaesesssenseeaas 1

STATEMENT OF THE CASE... eee ceeceecenecesseeesseeeceseeeesseceesaeeesseeseeeesessseesssesensseeens 3

I. Ms. Camargo sought protection in the United States and was charged with

assault while detained at Barracks 5 .........ccccccccccsccesssessccesscecsscsecsessecsesenseenees 3

IJ. The district court adopted the government’s position that the intent of the

law enforcement agents was dispositive for an entrapment defense. ........... 5

III. The Ninth Circuit affirmed Ms. Camargo’s conviction over her argument

that the district court applied an incorrect, objective theory of

CNEVAPMENL. ooo. ee ceeeceeeeceeeeeeeeeeeeneeeneeceneeeneneeseseseseeaeeeuuseeeaceseeesseceeneeseaecenes 6

REASONS FOR GRANTING THE PETITION ..0..eeceecccecceeccceesceeeneeesseesseeesssesseeeneens 7

I. In permitting an objective theory of entrapment, the Ninth Circuit has

created a conflict with Sorrells and progeny. ........cccccccccccccesssssscccceeeeeessneeeess 7

II. The Ninth Circuit’s decision in Ms. Camargo’s case cannot be squared with

this Court’s precedent. .........cccccccccsssseccesseeceessseecesseesccesescsecesssecessssaseveesssevens 9

III. Ms. Camargo’s case is a good vehicle for resolving an important and

frequently arising question about the entrapment defense. ...........0..cc00c 11

CONCLUSION... ccececcccccccceeccsesssnceeceeeceeseseneeeeeecessssseeeeececseenssansacsseceenssssesesesseueesieess 12

CERTIFICATE OF SERVICE

APPENDICES

TABLE OF AUTHORITIES

Federal Cases Page

Hampton v. United States,

425 U.S. 484 (L976) ooo. cccccccccceceeseesnssnenceceseeeeseseseeeceseesesesecessuceueessesersesees 2, 8, 10

Jacobson v. United States,

5038 U.S. 540 (1992) ooo ccecccccccccessescecessucssseececensesceceesvaceceseaucesesecceueaeesesens 2, 7,9

Mathews v. United States,

485 U.S. 58 (1988) oo. ccecccccccssesececccecevsceeecececarececcusueesecessasnecescesaeaneeecs 2, 5, 9, 10

Sherman v. United States,

356 U.S. 869 (1958) oo. .ececccccceeeseeseccccccesceecccssverecsceuvesceceesvateceessaausseeeeeeses 2, 8, 10

Sorrells v. United States,

287 U.S. 485 (1982) ooo c ccc cccccseccccceseeesccecccceacecccucaecesersvsseecessaaaateceseanens passim

United States v. DePierre,

599 F.3d 25 (Ast Cir. 2010) woe. cccecccscsssesececccscceccausnsssseececeescccsceseeauaasenaaerenees 7

United States v. Mayfield,

771 F.8d 417 (7th Cir. 2014) occ ccceseeseececceccccssecsuevavsesseceeccececeeeeeaeaasaaeese 11

United States v. Russell,

A11 U.S. 423 (1978) coc ccccecccssceeececeseseececssetscseecseessessssssssssseresssssneasess 2, 8, 9, 10

Federal Statutes

8 U.S.C. § 12310D)(8) oe cece ceseccereeseneeeesneecesaeeeseaeeeesaeeesnneeceaaeessneeeeseeensateesaees 3

18 U.S.C. § LIL (ay) wee eesecesscecsneeeeseeeceaeersaeeeseeeessaeeeeseeesseeseceeeessseesaeeeaees 1

28 U.S.C. § 1254 (1) cece eeecesseeeseecsaeceseeeceeseeecaeecsaeessaeceseeessseenaeeeseesnatenaeenseeesssenas 1

State Cases

Board of Comm ’rs v. Backus,

29 How. Pr. 33 (N.Y. Gen. Term 1864) 00... ccceccccceeccccceceseeesesssessssessssseeneeees 2

Other

Sup. Ct. R. 1O(C) occ cceesscsssssssssessssssssnsnsceeeeeeeneeseeeeseseseseseeeseeeecesesevesesecsseneenssesssens 2,7

Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare Suspects, USA Today, June

28, 20138

http:// www.usatoday.com/story/news/nation/2013/06/27/atf-stash-houses-stingusa-today-investigation/245 7109 00.0... ..ececccsecessssssssesessenesessracseanececesaseceeeeeseeeseneeterens 11

Human Rights Watch, Illusion of Justice: Human Rights Abuses in US Terrorism

Prosecutions (July 21, 2014), available

at https://www.hrw.org/report/2014/07/2 1l/llusion-justice/human-rights-abuses-us-

CELYOLISIN-PLOSECUTIONS ooo. eceecccccssececesseeeeessesesesseeseeneessennsssnsacaeceeeccesaseeeceeeceseseseesseeeenss 12

Leslie Wayne, Bribery Case Falls Apart, and Tactics are Doubted, The New York

Times, Feb. 23. 2012, https://www.nytimes.com/2012/02/24/business/fbi-briberycase-falls-apart-and-raises-questions. htm]

bec eeceeenecaueceneeeeeeeeeaeeceesaeeseneaeseeeaeeeuseeseseesaeeceetaeesesseeseesaeceeceseeseeceeecsecseenaecteceuceseeseceneees 12

U.S. Dep’t of Justice, Office of the Inspector General, Audit Div., Audit of the

Department of Justice’s Efforts to Address Mortgage Fraud 11 (March 2014),

https://oig.justice.gov/reports/2014/al412.pdf oo... eccccccceecececececeaesaesassseeeeeceeeeeenss 12

il

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jessica (Jose) Camargo-Alejo respectfully requests that a writ of

certiorari be granted to review the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINION BELOW

The unpublished memorandum disposition of the United States Court of

Appeals for the Ninth Circuit is reproduced in Appendix A to this petition.

JURISDICTION

The court of appeals affirmed Ms. Camargo’s conviction on December 21,

2018. See Appendix A. This Court has jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT STATUTORY PROVISIONS

Appendix B contains the following pertinent statutory provision: 18 U.S.C.

§ 111(a)(1).

INTRODUCTION

Even if inducements to commit crime could be assumed to exist in this

case, the allegation of the defendant would be but the repetition of the

plea as ancient as the world, the first interposed in Paradise: “The

serpent beguiled me and I did eat.” That defence was overruled by the

great Lawgiver, and whatever estimate we may form, or whatever

judgment pass upon the character or conduct of the tempter, this plea

has never since availed to shield crime or give indemnity to the culprit,

and it is safe to say that under any code of civilized, not to say

christian ethics, it never will.

Board of Comms v. Backus, 29 How. Pr. 33, 42 (N.Y. Gen. Term 1864). Sixty-eight

years after it made its prognostication, this Court proved the Supreme Court of New

York wrong: Sorrells v. United States, 287 U.S. 435 (1932), expressly recognized an

entrapment defense as a way to protect against the government encouraging

otherwise innocent people to commit crimes.

Beyond endorsing an entrapment defense, Sorrells settled a long-standing

dispute within the lower courts between an objective theory of entrapment—

focusing on the reasonableness of the government’s conduct—and a subjective

theory—focusing on the state of mind of the accused. Sorrells sided squarely with

the latter. Over the following sixty years, this Court has repeatedly upheld the

subjective theory of entrapment. See Sherman v. United States, 356 U.S. 369

(1958); United States v. Russell, 411 U.S. 423 (1973); Hampton v. United States,

425 U.S. 484 (1976); Mathews v. United States, 485 U.S. 58 (1988); Jacobson v.

United States, 503 U.S. 540 (1992).

It has been twenty-seven years since this Court’s most recent reaffirmation of

the subjective theory in Jacobson. In that time, the government in Ms. Camargo’s

case has attempted to revitalize the objective theory, and the district court and

Ninth Circuit have, in turn, accepted the government’s invitation. Because the

adoption of an objective theory of entrapment is decidedly inconsistent with Sorrells

and progeny, this Court should grant Ms. Camargo’s petition and reaffirm the

subjective theory of entrapment. See Sup. Ct. R. 10(c).

STATEMENT OF THE CASE

I. Ms. Camargo sought protection in the United States and was charged

with assault while detained at Barracks 5.

Ms. Camargo was indicted for assaulting Border Patrol Agent Monica

Valdovinos, the officer in charge at Barracks 5, a short-term detention facility

located at the Chula Vista, California Border Patrol station. Ms. Camargo found

herself in custody at Barracks 5 because she was seeking refuge in the United

States. For much of her life, Ms. Camargo experienced extreme violence in Mexico

due to her gender identity.

Ms. Camargo was born biologically male but began identifying as female at a

young age. She considers herself a transgender woman and undergoes hormone

therapy to maintain her gender identity and stabilize her mood. During her

childhood, Ms. Camargo’s parents disapproved of her gender identity and were

violent toward her because of it. When she was a teenager, Ms. Camargo’s father

abandoned her at an orphanage in Mexico. From then on, she lived on the streets of

Tijuana, where she suffered repeated physical and sexual assault and gang rape.

When Ms. Camargo sought help from the police in Tijuana, things only got worse:

the police beat and raped her themselves and then continued to harass, surveil, and

arrest her without cause.

Eventually, Ms. Camargo came to the United States-Mexico border for help.

With the assistance of a pro bono immigration attorney, she received withholding of

removal. See generally 8 U.S.C. § 1231(b)() (barring “remov[al] [of] an alien to a

country if the Attorney General decides that the alien’s life or freedom would be

threatened in that country because of the alien’s race, religion, nationality,

membership in a particular social group or political opinion.”). Despite receiving

immigration relief in the United States, Ms. Camargo made a poor choice, due in

part to the trauma and mental-health issues she suffered, and returned to Mexico.

Two years later, Ms. Camargo again feared for her safety in Tijuana and

went to the San Ysidro, California Port of Entry. She expressed a fear of being

harmed in Mexico due to her transgender status, explained her previous grant of

withholding of removal, and asked for protection. A Customs and Border Protection

officer took Ms. Camargo into custody, and she remained detained at the Port of

Entry for about a week. She was then moved to Barracks 5, where the events

giving rise to this case took place.

During her time at Barracks 5, Ms. Camargo and the other women detainees

would spend time on an outdoor patio. One such day, while Ms. Camargo was out

on the patio, Agent Valdovinos was out there too completing some paperwork.

Agent Valdovinos noticed Ms. Camargo cough and knew Ms. Camargo had been

previously given a face mask to prevent the spread of germs. Agent Valdovinos

asked Ms. Camargo to put on the face mask. Ms. Camargo, however, refused and

began to yell and swear.

Given Ms. Camargo’s reaction, Agent Valdovinos decided it was safest to

separate her from the other women and ordered her to stand up and head inside.

Ms. Camargo complied, but as she walked, she continued to turn around and yell in

Agent Valdovinos’s face. Once they reached the entrance to the building, Agent

Valdovinos placed her hand on Ms. Camargo’s shoulder. Ms. Camargo turned back

toward Agent Valdovinos and sized her up, so Agent Valdovinos pushed

Ms. Camargo forward to create more space. That is when the assault occurred:

Ms. Camargo swung and made contact with Agent Valdovinos’s face.

II. The district court adopted the government’s position that the intent

of the law enforcement agents was dispositive for an entrapment

defense.

Once she was charged with assault, Ms. Camargo sought to pursue an

entrapment defense—an “affirmative defense” that “presupposes the commission of

a crime” but excuses that commission because the defendant was induced by the

government. Mathews v. United States, 485 U.S. 58, 63 (1988). In other words,

Ms. Camargo attempted to defend herself on the grounds that she committed the

assault, but only because the agents at Barracks 5 provoked a fight with her. In

support of that defense, Ms. Camargo proffered that she was induced into the

assault because the agents treated her differently from the other women detainees:

they held her in degrading conditions of confinement; harassed her and used slurs

directed toward her transgender status; withheld medical care from her; subjected

her to baseless punishment; and physically bullied her.

The government, in turn, opposed an entrapment defense, noting that it

would be unprecedented in this type of case. In the government’s view,

Ms. Camargo’s proffer was “insufficient for any reasonable juror to find the

government agents induced the assault ... [and] implant[ed] the criminal design in

the mind of the defendant.” The government further argued that “[o]bviously, no

government agent wanted the defendant to assault Agent Valdovinos.”

5

The district court ultimately agreed with the government and declined to

instruct the jury on entrapment:

The Court does not believe that there’s even slight evidence that at any

time the officers or anyone involved in this was attempting to get

Ms. Camargo to hit them to commit the crime, and so I think the two

prongs that are necessary for the inducement are lacking and that

there’s not even slight evidence of that.

Denied an entrapment instruction, Ms. Camargo defended herself on two

alternative grounds: (1) her reaction to Agent Valdovinos’s push was an

unintentional or involuntary response and so insufficient to meet the general intent

to commit a forcible assault, and (2) the government failed to prove beyond a

reasonable doubt that she made physical contact with Agent Valdovinos. The jury

rejected both theories and convicted her.

Ill. The Ninth Circuit affirmed Ms. Camargo’s conviction over her

argument that the district court applied an incorrect, objective

theory of entrapment.

Ms. Camargo appealed her conviction to the United States Court of Appeals

for the Ninth Circuit. She argued, in part, that the government’s and district

court’s view of inducement was legally erroneous. Both the government and district

court focused on the agents’ intent or purpose to cause her to commit the assault,

but this focus was misplaced. Rather, Ms. Camargo maintained, consistent with the

subjective theory of entrapment, the focus should have been directed toward her

own mental state. The Ninth Circuit ultimately declined to address Ms. Camargo’s

argument and affirmed her conviction in an unpublished memorandum. See

Appendix A.

REASONS FOR GRANTING THE PETITION

This Court last grappled with the entrapment defense twenty-seven years

ago in Jacobson v. United States, 503 U.S. 540 (1992). In those intervening years,

the lower courts have struggled to hew to a definition of “inducement” that is

consistent with the Court’s adoption of a subjective theory of entrapment—one that

focuses on the mental state of the accused. See United States v. DePierre, 599 F.3d

25, 28 (Ist Cir. 2010) (Courts have had difficulty tailoring a useful abstract

definition of what is wrongful inducement... .”). This Court should grant certiorari

in Ms. Camargo’s case to provide guidance to the lower courts on the meaning of

wrongful inducement and reaffirm the vitality of the subjective theory of

entrapment. See Sup. Ct. R. 10(c).

I. In permitting an objective theory of entrapment, the Ninth Circuit

has created a conflict with Sorrells and progeny.

This Court has repeatedly recognized that an entrapment defense turns on

the mental state of the accused, not the conduct of law enforcement agents. The

Court first recognized the validity of an entrapment defense in Sorrells v. United

States, 287 U.S. 435 (1928). In doing so, the Court resolved a deep split of authority

as to whether the focus of entrapment was objective—looking to the government’s

conduct—or subjective—looking to the defendant’s conduct. The Court ultimately

chose the latter, explaining that the need for an entrapment defense arises when

“the criminal design originates with the officials of the Government, and they

implant in the mind of an innocent person the disposition to commit the alleged

offense and induce its commission in order that they may prosecute.” Sorrells, 287

U.S. at 442 (emphasis added). The Court went on to hold that a “defendant [who]

seeks acquittal by reason of entrapment [] cannot complain of an appropriate and

searching inquiry into his own conduct and predisposition as bearing upon that

issue.” Id. at 451.

Thirty years later, in Sherman v. United States, 356 U.S. 369 (1958), the

Court took on the issue of entrapment again and rejected an invitation to resurrect

an objective theory of the defense. Sherman reiterated that entrapment drew a

“line ... between the trap for the unwary innocent and the trap for the unwary

criminal.” Sherman, 356 U.S. at 372.

Then again, twenty years later, this Court once again declined to construe

entrapment as an objective defense:

[Sorrells and Sherman] establish that entrapment is a relatively

limited defense. It is rooted, not in any authority of the Judicial

Branch to dismiss prosecutions for what it feels to have been

‘overzealous law enforcement,’ but instead in the notion that Congress

could not have intended criminal punishment for a defendant who has

committed all the elements of a proscribed offense but was induced to

commit them by the Government.

United States v. Russell, 411 U.S. 423, 485 (1973); see also Hampton v. United

States, 425 U.S. 484, 488-89 (1976) (Russell “ruled out the possibility that the

defense of entrapment could ever be based upon governmental misconduct in a case,

such as this one, where the predisposition of the defendant to commit the crime was

established.”).

This Court further solidified its preference for the subjective theory of

entrapment in Matthews v. United States, 485 U.S. 58 (1988). There, the Court

reiterated that a defendant’s predisposition to commit a crime is the primary

element of an entrapment defense, which “focuses upon whether the defendant was

an unwary innocent or, instead, an unwary criminal who readily availed himself of

the opportunity to perpetrate the crime.” Matthews, 485 U.S. at 63 (internal

quotations omitted).

Finally, this Court most recently addressed the entrapment defense in

Jacobson v. United States, 503 U.S. at 540. Jacobson made clear that when an

entrapment defense is at play, “the prosecution must prove beyond a reasonable

doubt that the defendant was disposed to commit the criminal act prior to being

first approached by Government agents.” Jd. at 549. In other words, Jacobson

reaffirmed that entrapment is principally concerned with the defendant’s state of

mind.

Il. The Ninth Circuit's decision in Ms. Camargo’s case cannot be

squared with this Court’s precedent.

As explained supra at Part I, in a series of cases starting with Sorrells and

ending with Jacobson, this Court has rebuffed efforts to shift the focus of the

entrapment defense to the reasonableness of the government’s actions. Before

Jacobson, several Justices argued for a different formulation of the entrapment

defense—one that focused on “whether the Government’s conduct in inducing the

crime was beyond judicial toleration.” Russell, 411 U.S. at 443 (Stewart, J.,

dissenting); see also Hampton,425 U.S. at 496 (Brennan, J.,

dissenting); Sherman, 356 U.S. at 378 (Frankfurter, J., concurring in the

result); Sorrells, 287 U.S. at 453 (Roberts, J., concurring in the result). This Court

rejected that approach, which would have “focus[ed] on the conduct of the

governmental agents, rather than on whether the defendant was ‘predisposed’ or

‘otherwise innocent,’ ” (Russell, 411 U.S. at 441) (Stewart, J., dissenting)), because

“the defense of entrapment ... was not intended to give the federal judiciary a

‘chancellor’s foot’ veto over law enforcement practices of which it did not approve.”

Id. at 435.

By 1988, Justice Brennan—the most vocal proponent of an objective theory of

entrapment—conceded that “the Court has spoken definitively” in rejecting his

“view that the entrapment defense should focus exclusively on the Government’s

conduct.” Mathews, 485 U.S. at 66-67 (Brennan J., concurring). He “bow[ed] to stare

decisis” and concurred in Mathews, 485 U.S. at 67, a case in which the Court

affirmed that entrapment focuses on the defendant’s lack of predisposition. Id. at

63.

Here, by affirming Ms. Camargo’s conviction despite the district court’s

improper focus on whether “the officers or anyone involved in this was attempting

to get Ms. Camargo to hit them to commit the crime,” the Ninth Circuit has

essentially resurrected Justice Brennan’s now-defunct view that entrapment

focuses on the objective reasonableness of the government’s conduct. Such a view

runs directly contrary to this Court’s precedent.

10

III. Ms. Camargo’s case is a good vehicle for resolving an important and

frequently arising question about the entrapment defense.

The Seventh Circuit recently threw up its hands and decided that “[c]larity

and consistency would be served if [it] made a fresh start with a definition

of inducement.” United States v. Mayfield, 771 F.3d 417, 484 (7th Cir. 2014). Those

values would be served on a national scale if this Court resolved the confusion

surrounding entrapment that has arisen since Jacobson.

Ms. Camargo’s case is a good vehicle for providing such resolution. That is

because there is no factual dispute here: both the government (“[o]bviously, no

government agent wanted the defendant to assault Agent Valdovinos.”) and the

district court (not “even slight evidence that at any time the officers or anyone

involved in this was attempting to get Ms. Camargo to hit them to commit the

crime”) undoubtedly adopted a view of inducement that focused on the conduct of

law enforcement.

Moreover, the issue is not just teed up neatly; it is also incredibly important.

Ms. Camargo’s case involves assault, but entrapment most frequently arises in the

context of the government using sting operations. And the government’s practice

shows no signs of abating. Since 2003, “[t]he ATF has more than quadrupled its use

of such drug house operations ... and officials say [that] it intends to conduct even

more” going forward. Brad Heath, ATF Uses Fake Drugs, Big Bucks to Snare

Suspects, USA Today, June 28, 2018, available at http://

www.usatoday.com/story/news/nation/2013/06/27/atf-stash-houses-sting-usa-today-

investigation/2457109 (In 2012, “the ATF said it arrested 208 people in drug-house

11

operations, compared with 41 a decade earlier”). Likewise, the FBI has ratcheted up

its use of stings in a variety of other fields, including terrorism,! foreign

corruption,? and mortgage fraud. Given the government’s increasing reliance on

sting operations, guidance from this Court is critical. Otherwise, questions about

the scope of the entrapment defense will continue to percolate.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

March 21, 2019 o/- Plow km

HARINI P. RAGHUPATHI

1 Human Rights Watch, Illusion of Justice: Human Rights Abuses in US Terrorism

Prosecutions (July 21, 2014), available

at https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-usterrorism-prosecutions (“According to multiple studies, nearly 50 percent of the

more than 500 federal counterterrorism convictions [since September 11, 2001]

resulted from informant-based cases; almost 30 percent of those cases were sting

operations in which the informant played an active role in the underlying plot.”).

2 Leslie Wayne, Bribery Case Falls Apart, and Tactics are Doubted, The New York

Times, Feb. 23. 2012, https:/Awww.nytimes.com/2012/02/24/business/fbi-briberycase-falls-apart-and-raises-questions. htm] (questioning undercover tactics in an FBI

foreign corruption case).

3 U.S. Dep’t of Justice, Office of the Inspector General, Audit Div., Audit of the

Department of Justice’s Efforts to Address Mortgage Fraud 11 (March 2014),

https://oig.justice.gov/reports/2014/al412.pdf (“According to the FBI’s Financial

Institution Fraud Policy Implementation Guide, some mortgage fraud

investigations can be more effective with the use of proactive undercover operations

..’).

12