This dissent from the denial of rehearing en banc begins:
"Th[ese] cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values. An undercover government agent in Phoenix sent a paid confidential informant (CI) to randomly recruit “bad guys” in a “bad part of town” to help rob a non-existent stash house. While trolling in a bar, the paid CI successfully tempted a randomly-selected person to participate in the (fictional) crime by offering him the opportunity to obtain a huge financial benefit. After the CI put the participant in touch with the government agent, the agent urged the participant to bring others into the plot, played the principal role in devising and executing the imaginary crime, and then walked the defendants through a script that ensured lengthy prison sentences for committing a crime that did not exist.
Th[ese] cases require us to address the limits on how our government may treat its citizens. They pose the question whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty. Equally important, these cases force us to consider the continued vitality of the outrageous government conduct doctrine itself. The majority opinion decides all of these issues incorrectly. Further, despite its claims to the contrary,
the majority’s reasoning does virtually nothing to caution the government about overreaching. Instead, it sends a dangerous signal that courts will uphold law enforcement tactics even though their threat to values of equality, fairness, and liberty is unmistakable. I therefore dissent from the court’s decision not to rehear these cases en banc."
When the panel opinion came out, I too found persuasive much of what Justice Noonan said in his dissent. But was ultimately persuaded by the majority opinion.
Not so for the judges who dissent today from the denial of rehearing en banc. Unfortunately for the defendants, you can count those judges on two fingers. Best-buds-for-life -- and somewhat strange (but quite frequent) bedfellows -- Judges Reinhardt and Kozinski.
