This seems all very academic to me.
That's not necessarily a slam. I like opinions that go into detail, and that discuss at a low level of generality the relevant legal principles. That's a sign of good work.
I just wonder if this is really the case for it. Or if the doctrine matches the relevant underlying factual settings.
Judge Goodwin's opinion talks about sentencing entrapment. Which is an important topic, to be sure. The police know that a certain quantity of drugs creates enhanced liability, so sets up a sting in which it agrees to "sell" such a quantity even though no drugs (at all) exist. We've got a variety of doctrinal principles designed to deal with this problem, and they work tolerably well.
This case is a variant. What happens when the sting isn't about buying or selling drugs, but rather ripping them off? Drugs that, again, do not actually exist. Do the same principles apply?
I hadn't thought about that before. And I like the way Judge Goodwin addresses it. It's also a very important topic, both for the relevant individuals involved as well as society at large. Defendant's culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums. The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.
But what works for fake drug sales doesn't really work for fake drug thefts. With a fake drug sale, it is possible for a defendant to prove the he didn't really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying. We can't, however, say the same thing for fake drug thefts. As Judge Goodwin rightly explains, "once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten." (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch. Remember: Lift with your legs, not your back.)
So Judge Goodwin recognizes that there's a danger here. And that, as a result, we need to take what he calls a "hard look" at these sorts of cases. So the Ninth Circuit holds that, unlike in fake drug sales cases, in fake drug theft cases, the defendant need only show a lack of intent or capability to deal in the quantity of drugs charged.
Makes some sense.
But then Judge Goodwin applies that principle to Hernandez himself. Holding that Hernandez didn't prove entrapment because he presumptively had both the intent to steal the relevant quantity of drugs (since he did, in fact, join the plot) as well as capability to deal 'em.
That makes facial sense as well.
Here's the problem: What's true for Hernandez is almost certainly true for everyone else as well. A result that makes the "hard look" the Ninth Circuit creates essentially meaningless. Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan. That's equally true for pretty much everyone who joins a plan, right? If the undercover or C.I. says "We're going to steal 100 kilos," and if the defendant agrees, boom. Intent. True for Hernandez. True for Everyone.
Ditto for capability. Sure, the Ninth Circuit's doctrinal test says that you can prove entrapment in the event you can prove that you couldn't possibly have sold the quantity of drugs you intended to steal. But here's what Judge Goodwin says when the Ninth Circuit applies that test to Hernandez himself: "His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine. He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery." True for Hernandez and, presumably, for virtually everyone else as well.
So, in the end, we've got a facially "hard look" test that, in reality, is going to be satisfied over 99% of the time. That'd be my prediction, anyway. Someone else can do the hard empirical work to prove or disprove it.
So neat little case. That may seem to matter more than I think it will.
