Opinion on "outrageous government conduct"
Opinion here. There is a defense known as "outrageous government conduct," which (as the opinion notes) requires truly outrageous action. Here, BATF hired an informant to cruise the tougher bars and try to recruit people to stage a home invasion of a mythical drug stash house full of a mythical amount of cocaine. Once he recruited a team, they were arrested for conspiracy to possess cocaine for purpose of sale, and for conspiracy to use a firearm in a drug transaction. They were convicted and appeal.
The court split 2-1. The majority finds this is not sufficiently outrageous. Judge Noonan dissents (p. 36), I think rather persuasively. The stash house and its drugs were a governmentally-created fiction. Defendants were recruited to act out the script. The informant was not told to seek out people who'd done this before or seemed predisposed to do it. The amount of drugs (which increases the sentence under the Sentencing Guidelines) was likewise a fiction.
He cites Judge Posner's observation that a reverse sting like this, to the extent it deters crime, has the paradoxical effect of making it safer to operate drug stash houses, and that drug distributors would probably be willing to pay the government to run these stings.
"Massively involved in the manufacture of the crime, the ATF’s actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court."
UPDATE: As the opinion notes, the informant urged the guy he was dealing with to recruit others. There was probably a reason behind this beyond maximizing the number of defendants. A Federal conspiracy charge requires proof that at least two people genuinely agreed to commit a crime. The informant doesn't count -- he has no intention to commit a crime. So he needs to recruit at least two others, so they can have a conspiracy.