“While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit [the court] to conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly”
How later courts described this case
- “While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit [the court] to conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly”
- "[T]he Government's role * * * in the undercover operation * * * had to be kept absolutely secret to preserve the sting's success."
- right must be “clearly established at the time the incidents occurred”
Written by the judges who cited it.
The opinion
WISDOM, Senior Circuit Judge.
I respectfully dissent.
The government’s discretion to conduct undercover investigations, although necessarily broad, is not unlimited. The due process clause protects even criminal defendants against “truly outrageous” government misconduct. 1 As the Supreme Court observed in Stanley v. Illinois, 2 “one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” 3
I would hold that the FBI exceeded the limits of its discretion. Had the FBI not intervened directly, the car in question would not have been sold to an innocent purchaser. This case therefore differs from the more usual case in which the FBI simply participates in an ongoing criminal enterprise without causing additional crime.
The substantive due process right implicated in this case requires a balancing of interests.- On the one hand is the government’s interest in discovering and prosecuting criminals. On the other hand is the citizen’s right not to be the victim of a crime created wholly by the government. Officials of the FBI have long known that their conduct during an. undercover operation may invade the due process rights of citizens involved in the investigation. For example, targets of the investigation may not be entrapped. 4 The FBI knew that civil liability may attach for particularly egregious conduct in entrapment cases.
I am confirmed in my conclusion that the FBI’s handling of Operation Recoupe or Recoup was “truly outrageous” by the criticism it has generated in the public and in Congress. Recoupe and other operations similar to it have been the subject of critical newspaper articles and congressional hearings. 5 The Subcommittee on Civil and Constitutional Rights of the Judicial Committee of the House of Representatives investigated Operation Recoup among other undercover operations. The subcommittee had this to say about the sting operation:
In Operation Recoup a 1981 investigation of stolen car racketeering in the South and Midwest, the Bureau apparently used its own agents to set up a bogus used car business, Le Blanc Motors, in which wrecked cars were sold to “retaggers” who then replaced the motor vehicle identification tags on stolen automobiles with those of the wrecked vehicle. FBI agents also operated as intermediaries in several sales of stolen and retagged automobiles to used car dealers. Those sales were made with the knowledge that the cars would be subsequently resold to innocent purchasers who would ultimately lose title to them. 6
*825 As of October 1982 more than 250 cars had been confiscated from innocent purchasers. 7 In addition, of course, the business reputations of the dealers who sold the automobiles have been irreparably injured. Operation Recoup has spawned a number of lawsuits claiming millions of dollars in damages by innoct sellers and purchasers of stolen automobiles. 8
H.R. Doc. 98-267, 98th Cong., 2nd Sess. (1984), p. 22.
The sad fact is that in Operation Recoupe the FBI victimized innocent citizens by knowingly selling stolen cars and now refuses to reimburse the purchasers. The costs of such an operation should be borne by the United States government, not by the innocent victims.
. United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983).
. 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972).
. Id. at 656 , 92 S.Ct. at 1215 .
. See United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983).
. The Washington Post, August 3, 1985, at A3; The Times-Picayune/The States-Item, June 12, 1986, at A-14; FBI Undercover Operations, H.R. Doc. No. 98-267, 98th Cong., 2nd Sess. (1984).
. "Asked after the investigation whether the operation could not but harm innocent people, the Assistant Special Agent in Charge of the St. Louis FBI office responded affirmatively. *825 Rockford (Ill.) Register Star, p. 1a”. H.R. Doc. 98-267, 98th Cong. 2nd Sess. (1984), p. 22 n. 51.
. Wall Street Journal, October 7, 1982, p. 1.
. Claims in excess of $47 million have been filed against the United States as a result of Operation Recoup, none of which have been settled (see “FBI Undercover Activities,” supra, at 457). Here, too, the Department of Justice has resisted all efforts to disclose through discovery the FBI’s role. (December 22, 1983 telephone conversation with attorney for the defendant, third party defendant in Powers v. Lightner, U.S. District Court, Northern District of Illinois, Western Div. 82 C 20080, and Powers v. Lightner, Court of the Fifteenth Judicial Circuit, Lee County, Illinois, No. 22-LM 16.) H.R. Doc. 98-267, 98th Cong., 2nd Sess. (1984), p. 22 n. 52.