32
UNITED STATES V. MOHAMUD
government conduct set out in Black favor dismissal of the
indictment.16 We disagree.
In Cromitie, a comparable Second Circuit case, the
defendant was convicted of planning and attempting to carry
out domestic terrorism offenses. 727 F.3d at 199–204. The
defendant claimed that the government’s conduct in
persuading him to commit the charged offenses violated due
process. Id. at 217. The Second Circuit held that it did not.
Even though the government “invented all of the details of
the scheme,” the defendant’s express desire to “do something
to America” and “die like a martyr” was sufficient to justify
the government’s testing of how far he would go. Id. at 219.
Like Mohamud, Cromitie argued that the government took
advantage of his religious affiliation, but the court explained
that a government agent “is entitled to probe the attitudes” of
an individual who “volunteers that he wants to ‘do something
to America’ . . . to learn whether his religious views have
impelled him toward the violent brand of radical Islam that
poses a dire threat to the United States.” Id. at 219–20.
16
These factors are analyzed collectively in determining whether
government conduct is 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 necessity for
the actions taken in light of the nature of the criminal enterprise at issue.”
Black, 733 F.3d at 303. The first three are relevant to how the government
set up the sting, the fourth and fifth analyze the government’s role in the
sting, and the last relates to the justification for the operation. Id. at
303–04.
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