United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
On October 14, 2014, defendant Louis Borrero ("defendant" or "Borrero"), through his counsel, filed a motion to dismiss the indictment on the ground that the Government engaged in "outrageous government conduct" during its investigation of defendant and his robbery crew. (Letter Memorandum in Support of a Motion to Dismiss the Indictment for Outrageous Governmental Conduct and Mr. Borrero's Position on Sentencing at 2-3, ECF No. 478 ("Def.'s Mem.").) Although the deadlines to make pre-trial and post-trial motions have long passed,  the Court has carefully considered the issues raised in Borrero's motion.
For the reasons set forth below, Borrero's motion is DENIED.
On January 23, 2014, a federal grand jury returned Indictment 13 Cr. 58 against seventeen defendants, including Borrero. (ECF No. 24.) On September 3, 2013, the Government filed Superseding Indictment Sl 13 Cr. 58 (KBF) (the "Superseding Indictment") against Borrero and two others. (ECF No. 107.) The Superseding Indictment charged Borrero in three counts. Count One charged him with a conspiracy to distribute, or possess with the intent to distribute, one kilogram and more of heroin, in violation of 21 U.S.C. §§ 841(a), 841(b)(l)(A), and 846. Count Two charged Borrero with a conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Count Three charged that, in connection with the crimes charged in Counts One and Two, Borrero carried or possessed a firearm, or aided and abetted the same, in violation of 18 U.S.C. §§ 924(c)(l)(A)(ii) and (2).
The charges in the Superseding Indictment arose from defendant's participation in a robbery and drug crew (the "Crew"), which, among other things, impersonated police officers and robbed drug dealers. Borrero and other members of the Crew were arrested on January 9, 2013 during a Drug Enforcement Administration ("DEA") sting operation. The arrest occurred as Borrero and other Crew members were attempting to rob what they believed was a heroin stash house.
Borrero's trial commenced on November 4, 2013. On November 12, 2013, a jury convicted Borrero on all counts. On December 3, 2013, Borrero submitted a pro se motion to set aside the verdict, for entry of judgment of acquittal, and for a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. (ECF No. 265.) In that motion, Borrero asserted, first, that that the evidence admitted against him at trial was legally insufficient, and, second, that he received constitutionally ineffective assistance from his trial counsel.
On February 14, 2014, the Court granted counsel's request to extend the deadline to submit post-trial motions until March 31, 2014. (ECF No. 341.) On March 31, 2014, counsel advised the Court that he "d[id] not have any additional or supplement issues to present to the Court, " and requested that the Court adjudicate Borrero's previously filed pro se motion. (ECF No. 380.) On May 12, 2014, the Court denied Borrero's motion on the merits. (ECF No. 399.) On June 19, 2014, the Court denied Borrero's motion for reconsideration of the May 12, 2014 decision. (ECF No. 434.)
On October 14, 2014, as part of his sentencing submission, Borrero moved, for the first time, to dismiss the Superseding Indictment for outrageous government conduct. (ECF No. 478.) That motion is the subject of this Opinion & Order.
II. LEGAL STANDARD
"[C]ourts have long recognized that [sting] operations are permissible, often necessary for effective law enforcement." United States v. Jenkins , 876 F.2d 1085, 1087 (2d Cir. 1989) (per curiam) (citing United States v. Russell , 411 U.S. 423, 432 (1973)); see also Russell , 411 U.S. at 432 (explaining that in drug-related offenses, "the infiltration of drug rings and a limited participation in their unlawful present practices" is "one of the only practicable means of detection"); United States v. Malachowski, 415 F.Appx. 307, 310 (2d Cir. 2011) ("[T]he use of an undercover agent, a cooperating witness, and a sting' operation... is well within the realm of standard investigatory techniques.").
The Second Circuit has, however, recognized the principle that "[g]overnment involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped." United States v. Al Kassar , 660 F.3d 108, 121 (2d Cir. 2011) (citations omitted). "Unlike entrapment, which focuses on the defendant's predisposition, outrageous government conduct focuses on the conduct of the government agents." Id . (citation omitted).
The burden of establishing outrageous government conduct rests with the defendant. United States v. Cromitie , 727 F.3d 194, 221 (2d Cir. 2013). This burden is "very heavy" in light of "the courts' well-established deference to the Government's choice of investigatory methods." United States v. Rahman , 189 F.3d 88, 131 (2d Cir. 1999) (citations omitted); cf. United States v. Ming He , 94 F.3d 782, 792 (2d Cir. 1996) (citing United States v. Lau Tung Lam , 714 F.2d 209, 210 (2d Cir. 1983) for the proposition that "supervisory power over DEA conduct in a sting operation is extremely limited'"). Government misconduct is "an issue frequently raised that seldom succeeds." United States v. Schmidt , 105 F.3d 82, 91 (2d Cir. 1997) (citation omitted); see also United States v. LaPorta , 46 F.3d 152, 160 (2d Cir. 1994) (similar).
To prevail on a claim of outrageous government conduct, a defendant must demonstrate that the conduct was "so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction." United States v. Bout , 731 F.3d 233, 238 (2d Cir. 2013) (quoting Schmidt. 105 F.3d at 91) (internal quotation marks omitted). In other words, the Government's conduct must "shock the conscience." Cromitie , 727 F.3d at 218 (citing Rahman , 189 F.3d at 131). "Generally, to be outrageous, ' the government's involvement in a crime must involve either coercion or a violation of the defendant's person." Al Kassar , 660 F.3d at 121 (citations omitted); accord United States v. Kelly , 707 F.2d 1460, 1476 (D.C. Cir. 1983) (explaining that due process ...