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Court Stands Strong Behind Sharp Tactics

The Ninth Circuit Court of Appeals has once again stood behind prosecutors’ tactics of fueling minimums in drugs cases in which defendants refuse to snitch. The court upheld, for the second time, the conviction of a drug dealer who refused to act as a government informant and was therefore subject to a higher minimum. The panel of three judges unanimously upheld this conviction.


Convicted drug dealer Jay Kent refused to act as a government informant after being caught with crack in July, 2008. The Assistant Federal Public Defender tried entering into a guilty plea for his client before the government filed the 851 information, triggering steeper penalties based on prior drug convictions. However, the guilty plea had to be withdrawn after the Assistant U.S. Attorney revealed the copies of the bolstered charges and the Court accepted the 851 information. This raised the exposure from five to forty to ten to life.

The appeals court later held that there was no evidence to support the claim that the government acted vindictively and also held that the court was right to accept the new charge information under federal and local rules governing proper filing procedure. Furthermore, the court held that it is reasonable for prosecutors to carry out threats of increased charges from failed plea negotiations. Kent's defense attorney criticized the opinion by stressing that he believed the judges did not see the clear evidence of vindictiveness and for its definition of plea bargaining. A rehearing is still uncertain.

The case is: United States v. Kent, 9th Cir, February 8, 2011; 10-10011

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