ORDER REJECTING REPORT & RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO DISMISS (DKT. ##59, 108)
ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE
The Government successfully infiltrated the Vagos Motorcycle Club to determine whether it was engaged in illegal conduct. Defendant Jeremy Halgat was a member of the Vagos. At the conclusion of the investigation, Halgat was indicted in this case on four counts of distribution of cocaine and one count of conspiracy to distribute. (Dkt. #1.) Halgat moved to dismiss the indictment, alleging that it was the result of "Outrageous Government Conduct." (Dkt. ##59, 93.) Halgat contends that he was not predisposed to commit the crimes and that the Government's agent created and encouraged the crimes, bullied Halgat into participating, and oversaw the crimes from start to finish. The evidence presented at the hearing on the motion refutes Halgat's allegations and demonstrates both that Halgat was a willing participant in the drug purchases and that the Government's actions were reasonable. Therefore, I deny Halgat's motion.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The Government's "Operation Pure Luck" was designed to infiltrate the Vagos Motorcycle Club and determine whether it was a criminal enterprise and whether its members were engaging in criminal activity. Agostino Brancato was a Los Angeles County Sheriffs Deputy and Bureau of Alcohol, Tobacco, Firearms and Explosives Task Force Officer (TFO). In approximately September of 2011, Brancato joined the Vagos in Las Vegas, acting in an undercover capacity. (Dkt. #168 at 41.) It took him until July 1, 2012 to progress through the Vagos ranks from "Hang Around" status, through "Prospect" status, to become a "Full-Patch Member." (Id. at 41-42.)
Defendant Jeremy Halgat was a Full-Patch Member of Vagos, and he held a leadership role within Vagos. Brancato became friendly with Halgat and his family and regularly interacted with Halgat and other Vagos members. Although Halgat had no documented criminal history (Dkt. #168 at 42-43), he repeatedly bragged to Brancato about his prior criminal exploits, including stomping a Hell's Angels member in Sparks, Nevada (Dkt. #170 at 122-123), attempting to assault members of rival motorcycle clubs (Id. at 119-120), firing a weapon in the backyard of a New Year's Eve party (Dkt. #170 at 121), transporting marijuana and live grenades across the Mexican border (Id. at 125, 129-130), and having $35,000 worth of marijuana stolen from him
(Id.) Halgat claimed that "he had a couple of close calls with law enforcement during his previous work as a drug courier." (Id.) He told Brancato that he could convert assault rifles into fully-automatic weapons. (Id. at 136-137.) Halgat wore Vagos patches signifying that he had committed violence on behalf of both his Vagos chapter and the overall Vagos organization (Dkt. #170 at 116-118, Dkt. #169 at 9-10), thereby corroborating some of his boasts.
Brancato witnessed Halgat committing criminal activity, including the purchase, distribution, and consumption of narcotics. (Dkt. #170 at 109, 111-112, 41-143, 146-152.) Brancato was with Halgat when Halgat purchased cocaine from defendant Udell Wickham. (Dkt. #170 at 109, 141-143.) Brancato ultimately determined that Halgat had a criminal disposition, and Brancato wanted to trace Halgat's drug supply chain higher up past Wickham. (Dkt. #170 at 156; Dkt. #171 at 63-65.)
Brancato asked Halgat how he could purchase a quarter pound of cocaine from Wickham. Halgat expressed concern about actively participating in the transaction, but he agreed to make introductions between Brancato and Wickham and vouch for each of them. (Dkt. #168 at 104-114; see also, Defs. Exh. 619 and 697 (audio tapes); Defs. Demonstrative Exh. 586 at 5-6; Govt. Demonstrative Exh. 5 at 60-61.) Within the next few weeks, Halgat arranged for a meeting with Wickham on September 11, 2012 at the Crowbar. At that meeting, after some small talk between the three men, Halgat and Wickham went to another spot in the Crowbar and negotiated the purchase of a quarter pound of cocaine for $2,800 on a future date. (Dkt. #170 at 157-159.)
On September 19, 2012, Halgat informed Brancato that Wickham required the entire $2,800 purchase price paid in advance. (Dkt. #170 at 158-166.) Brancato was unwilling to front that much cash, so he asked to purchase a smaller amount that day. (Id.) Halgat relayed the message to Wickham and Wickham agreed. (Id.) Later that evening, Brancato and Halgat drove together to a Hooters restaurant where Halgat had arranged with Wickham to conduct the sale. (Id. at 166-167.) While driving to the restaurant, Brancato gave $800 to Halgat for the purchase. At the restaurant, the three discussed purchasing a quarter pound of cocaine in the future, and Wickham agreed to sell an ounce for $700 that day. (Id.; see also Exh. 620 (audio recording).) Eventually, Halgat and Wickham went to the restroom and exchanged the money for an ounce of cocaine. (Id.) Halgat gave Brancato the cocaine during the drive home. (Dkt. #168 at 134-137.)
Halgat and Brancato made three more one-ounce purchases of cocaine from Wickham on October 11, 12, and 26, 2012. Each time, Halgat was an active participant in the transactions, handing over the money and/or accepting the cocaine. During this time, Brancato repeatedly asked Halgat if he could deal directly with Wickham. (Dkt. #171 at 63-65.) Halgat never allowed that to happen, so Halgat was directly involved in all four purchases. (Id.)
Operation Pure Luck continued for months after these four purchases and resulted in several indictments. In this case, Halgat and Wickham were indicted on four counts of distribution of cocaine and one count of conspiracy to distribute. Wickham pleaded guilty to all five counts without the benefit of a plea agreement with the Government. (Dkt. #80.) Halgat moved to dismiss the indictment, alleging "Outrageous Government Conduct." After the motion was fully-briefed, Magistrate Judge Ferenbach recommended that the motion be granted. (Dkt #108.) The Government objected to that recommendation. (Dkt. #114.)
Pursuant to Local Rule IB 3-2,1 have conducted a de novo review of the issues set forth in Magistrate Judge Ferenbach's Report & Recommendation and the related briefs. In connection with that review, I and Judge Dorsey convened a joint evidentiary hearing on the motions filed in this case and in the related Case No. 2:13-cr-00239-JAD-PAL. For the reasons set forth herein, Magistrate Judge Ferenbach's Report & Recommendation is rejected, and Halgat's Motion to Dismiss is denied.
1. The Bases for Magistrate Judge Ferenbach's Recommendation
Magistrate Judge Ferenbach's recommendation of dismissal is based in large measure on his findings that (1) Halgat had repudiated his prior drug-dealing activities and refused to participate in the drug transactions, (2) Brancato unduly pressured Halgat into participating, and (3) Brancato lied in at least one Report of Investigation. (Dkt. #108 at 6-10 & 21, n. 15.) Magistrate Judge Ferenbach's findings were made without the benefit of an evidentiary hearing. He initially scheduled a hearing but canceled it after the Government-apparently overly optimistic about its position-stated in its response to the motion that "arguments raised in [Halgat's] motion do not rise to the level of necessitating an evidentiary hearing as there is no contested issue of fact." (Dkt. #103 at 36:5-7.) Magistrate Judge Ferenbach interpreted the facts and allegations differently than the Government, and he believed the Government conceded that "Halgat's refusal to traffic cocaine [with Brancato] was real." (Dkt. #108 at 30, n. 20.)
Instead of an evidentiary hearing, Magistrate Judge Ferenbach relied on transcripts of video and audio tapes that were submitted by Halgat's expert. The Government submitted transcripts that differed from Halgat's, but Magistrate Judge Ferenbach accepted Halgat's versions as correct and that affected his decision. Magistrate Judge Ferenbach found that Halgat initially refused to help Brancato purchase cocaine because Halgat had unequivocally repudiated his prior drug dealing activities. (Id. at 7-9 & 20.) Magistrate ...