Petition for Writ of Certiorari — Youval Geringer-Ganor, Petitioner v. United States

No.

_______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________

YOUVAL GERINGER-GANOR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent

_______________________________________

On Petition for Writ of Certiorari to the

Ninth Circuit Court of Appeals

_______________________________________

PETITION FOR WRIT OF CERTIORARI

VERNA WEFALD

65 North Raymond Avenue, Suite 320

Pasadena, California 91103

Telephone: 626-577-2658

Facsimile: 626-685-2562

Email: verna@vernawefald.com

Counsel of Record

QUESTION PRESENTED

Whether this Court should decide the important but unsettled question as to

whether government sting operations may constitute outrageous government conduct

warranting dismissal of the charges?

i

TABLE OF CONTENTS

OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THIS COURT SHOULD DECIDE WHETHER STING OPERATIONS MAY

CONSTITUTE OUTRAGEOUS GOVERNMENT CONDUCT . . . . . . . . . . . . . . . . . . . 5

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Appendix A

Memorandum Decision, Filed March 8, 2019

Appendix B

Order Denying Rehearing, Filed March 22, 2019

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TABLE OF AUTHORITIES

CASES

Rochin v. California, 342 U.S. 165 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Sorrels v. United States, 287 U.S. 435 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Black, 733 F.3d 294 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Russell, 411 U.S. 423 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

STATUTES

18 U.S.C. §3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iii

No.

_______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________

YOUVAL GERINGER-GANOR,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent

_______________________________________

PETITION FOR WRIT OF CERTIORARI

Petitioner Youval Geringer-Ganor respectfully prays that a writ of certiorari

issue to review the decision of the United States Court of Appeals for the Ninth Circuit filed

on March 8, 2019. The decision is unpublished.

OPINION BELOW

On March 8, 2019, the Court of Appeals entered its decision affirming

petitioner’s drug trafficking convictions and resulting 180 months sentence. (Appendix A

[memorandum decision].) On March 22, 2019, the petition for rehearing was denied.

(Appendix B.)

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JURISDICTION

On March 22, 2019, the Court of Appeals denied the petition for rehearing.

(Appendix B.) Jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). This petition

is due for filing on June 20, 2019. Supreme Court Rules 13(3). Jurisdiction existed in the

District Court pursuant to 18 U.S.C. §3231 and in the Ninth Circuit Court of Appeals under

28 U.S.C. §1291.

CONSTITUTIONAL PROVISION INVOLVED

Fifth Amendment (pertinent part)

“No person shall ... be deprived of life, liberty, or property without due process

of law ....”

STATEMENT OF THE CASE

Petitioner was convicted of numerous counts related to money

laundering and drug trafficking conspiracy after a DEA sting operation. The

government had no information that Petitioner (a 63 year old Israeli man with no

prior criminal record) was involved in money laundering or drug trafficking. The

government supplied all the cash and the drugs. The government chose the meeting

places. The government decided how the money was to be laundered.

Petitioner repeatedly told undercover agents he would never do any drug

deals. Nevertheless, the government decided Petitioner should be caught with

cocaine just so they could arrest him. A police officer testified before the grand jury

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and at the earlier trial of Petitioner’s codefendant Moshe Matsri, that when Petitioner

arrived at the warehouse (where he was set up to be caught with cocaine), he sent a

text message to Matsri on his Blackberry. In truth and in fact, the text message was

sent to Petitioner. When Petitioner’s counsel was prepared to prove pretrial that the

officer lied -- the Blackberry had been in government custody for a year – the text

message was mysteriously deleted.

Petitioner’s codefendant Matsri was a longtime DEA informant from

Israel who was deactivated for continuing criminal activity. Matsri referred DEA

undercover agents to Petitioner as someone who could help move money. The agents were

the ones who told Petitioner how they wanted the money to be moved, such as by “hawala,”

a transfer system common in the Middle East that is built solely on trust.

Petitioner testified at his trial that he knew the undercover agents were cops

because of the way they conducted himself. He knew Matsri had some kind of dealings with

the government. As a salesman by trade, Petitioner decided to go along with their requests

to make some money. He never believed the money they gave him came from drug

trafficking.

Pretrial, Petitioner moved to dismiss the charges for outrageous government

conduct. The government contended that the DEA agents were just investigating a money

laundering operation already in existence. DEA Agent Rojas testified that this investigation

grew out of a previous investigation into the Sinaloa Mexican drug cartel (Operation Rush

3

Hour I). Through that investigation agents were led to codefendant Yaron Cohen who was

allegedly a drug dealer and money launderer connected to the cartel and based in Amsterdam.

After agents met with Cohen in Europe they were led to codefendant Matsri in Los Angeles,

who in turn referred them to Petitioner. Petitioner’s counsel asserted that the government’s

story was farfetched and agents were more likely focused on Matsri from the very beginning.

The parties’ sentencing pleadings in Cohen’s case, however, belied the

government’s claim that Cohen was a known drug trafficker/money launderer. In truth and

in fact, Cohen was just an alcoholic with money problems. He was living in Amsterdam with

his family. The government did not allege that Cohen had any connection to the Sinaloa

cartel or Mexican drug traffickers.

On direct appeal, the Ninth Circuit rejected Petitioner’s outrageous conduct

claims. The court held that infiltration of an existing money laundering operation did not

amount to outrageous government misconduct. (Appendix A at 2.) The court did not address

the inconsistency with Agent Rojas’ testimony about Cohen and the prosecutor’s failure to

allege that Cohen was linked to Mexican drug dealers. Petitioner’s rehearing petition on

grounds that the court had overlooked material facts was denied. (Appendix B.)

4

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD DECIDE WHETHER STING OPERATIONS MAY

CONSTITUTE OUTRAGEOUS GOVERNMENT CONDUCT

In Rochin v. California, 342 U.S. 165 (1952), this Court threw out a drug

conviction on due process grounds after the police forced the defendant to vomit drugs in

order to prosecute him.

[W]e are compelled to conclude that the proceedings by which this conviction

was obtained do more than offend some fastidious squeamishness or private

sentimentalism about combating crime too energetically. This is conduct that

shocks the conscience.

Rochin, 342 U.S. at 172.

In United States v. Russell, 411 U.S. 423 (1973), this Court reaffirmed that:

The function of law enforcement is the prevention of crime and the

apprehension of criminals. Manifestly that function does not include the

manufacturing of crime. Criminal activity is such that stealth and strategy are

necessary weapons in the arsenal of the police officer. However, ‘a different

question is presented 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.

Russell, 411 U.S. at 434-35, quoting Sorrels v. United States, 287 U.S. 435 (1932) (first

Supreme Court case to recognize and apply entrapment defense).

Russell also reaffirmed that the “conduct of law enforcement agents” could be

“so outrageous that due process principles would absolutely bar the government from

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invoking judicial processes to obtain a conviction.”1 Russell, 411 U.S. at 431-32, citing

Rochin, supra, 342 U.S. 165. In Russell, this Court did not find outrageous governmental

conduct in that case because the defendants’ “criminal enterprise” of manufacturing

methamphetamine “was already in process.” 411 U.S. at 432. The agent had supplied an

essential chemical of propanone to make methamphetamine, but this chemical was “by itself

a harmless substance and its possession [was] legal.” Ibid. The defendants also admitted

having “made the drug both before and after” the government agent supplied the propanone.

Id. at 431.

In United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986) the Ninth Circuit

recognized that outrageous governmental conduct may warrant dismissal of an indictment

when the government devises "vindictive and deliberate schemes" to secure the defendant's

"conviction at any cost." It is “constitutionally unacceptable’” when the “crime is fabricated

entirely by the police to secure the defendant’s conviction rather than to protect the public

from the defendant’s continuing criminal behavior.” Id. at 1438.

The most recent Ninth Circuit case with an extensive discussion of outrageous

government conduct vis-a-vis sting operations is United States v. Black, 733 F.3d 294 (9th

1

"Egregious wrongdoing by the government" not only mandates reversal, but also

permits dismissal of charges for "outrageous government conduct." United States v. BernalObeso, 989 F.2d 331, 336 (9th Cir. 1993) (prosecutor withheld critical evidence about

informant's criminal background. The "judiciary ... may exercise its supervisory power [to

dismiss charges] to make it clear that the misconduct was serious, that the government's

unwillingness to own up to it was more serious still and that steps must be taken to avoid a

recurrence of this chain of events.")

6

Cir. 2013). There, the ATF recruited an informant to carry out the armed robbery of a fake

cocaine stash house. The defendants agreed and planned the robbery over several days.

They were arrested on their way to the fake stash house. Id. at 298. Although a divided court

ultimately affirmed the convictions, it set out some guidelines to evaluate outrageous conduct

motions. Ibid.

The Ninth Circuit observed that there is no “bright line” rule to determine

when government agents have crossed the line and emphasized that each case must be

resolved on its particular facts.” Black, 733 F.3d at 302 (citations omitted). Nevertheless,

it is outrageous for government agents to, e.g. engineer and direct a criminal enterprise from

start to finish or to generate new crimes merely the sake of pressing criminal charges. Ibid.

(citations omitted). By contrast, it is not outrageous for government agents to infiltrate a

criminal organization, to approach individuals who are already involved or contemplating

a criminal act, or to provide necessary items to a conspiracy. Ibid. (citations omitted).

The conduct in Black was held not to be outrageous because the defendants

“readily and actively acted as willing participants with a professed ability to carry out a

dangerous armed robbery.” 733 F.3d at 302. There were, however, troubling aspects to the

case. First was the “fiction itself.” Ibid. The whole operation was created and staged by the

ATF. The only overt actions by the defendants were showing up at meetings and arriving

at the fake stash house with hidden loaded weapons. Id. at 303.

7

The Ninth Circuit’s second concern was the fact that the ATF was not

infiltrating a crew of suspected home invasion robbers but went out “trolling for targets” in

a “bad part of town” where the temptation of a “big payday” was too much to resist. Black,

733 F.3d at 303. The court was also concerned that reverse stash house stings raise the issue

of sentencing entrapment because the government can, for example, inflate the amount of

drugs to obtain a greater sentence. Ibid. (citation omitted).

Although not dispositive, Black set out six factors as relevant to determining

whether the government’s conduct was outrageous: (1) known criminal characteristics of the

defendants; (2) individualized suspicion of the defendants; (3) the government’s role in

creating the crime of conviction; (4) the government’s encouragement of the defendants to

commit the offense conduct; (5) the nature of the government’s participation in the offense

conduct; and (6) the nature of the crime being pursued and the necessity for the actions taken

in light of the nature of the criminal enterprise at issue. While not a “formalistic checklist,”

these factors “focus our analysis of the totality of circumstances.” Black, 733 F.3d at 303304.

Petitioner’s case easily passes Black’s six part test. Other than Agent Rojas’

bald assertion that it had stumbled on a money laundering operation already in existence –

and which was completely contradicted by the government’s prosecution of codefendant

Cohen – there was no evidence of any existing money laundering operation.

8

This Court has never addressed whether government sting operations could

constitute outrageous government conduct warranting dismissal of the charges. It is widely

known that the government has been increasingly resorting to sting operations at the cost of

ensnaring innocent people along with the guilty.

See e.g. Grame Newman, “Sting

Operations,” US Department of Justice, Office of Community Oriented Policing Services,

October 2007; Bruce Hay, “Sting Operations, Undercover Agents, and Entrapment,” 70 Mo.

L. Rev. (2005).

This Court should decide this “important question of federal law that has not

been, but should be, settled by this Court.” Rule 10, Supreme Court Rules. The lower courts

and practitioners are in need of much guidance as to whether and how to evaluate claims of

outrageous conduct vis-a-vis sting operations. Petitioner’s case is the perfect case to settle

this issue.

CONCLUSION

For the reasons expressed above, Petitioner respectfully requests that a writ of

certiorari issue to review the judgment of the Ninth Circuit Court of Appeals.

Date: June 15, 2019

Respectfully submitted,

VERNA WEFALD

Counsel of Record

9