# United States v. Curtis Miller

> Court of Appeals for the Seventh Circuit · December 18, 1989 · 891 F.2d 1265

URL: https://www.frixlaw.com/law-library/cases/9479806

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Curtis MILLER, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 18, 1989
- **Citations:** 891 F.2d 1265; 1989 U.S. App. LEXIS 19965; 1989 WL 153114
- **Precedential status:** Published
- **Opinion:** Concurrence by Easterbrook
- **Judges:** Cudahy, Cummings, Easterbrook
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479806

## How later opinions describe it (automated extraction)

- finding that this court has jurisdiction under sec. 3742(a)(2) where defendant argues that the district court’s denial of a downward adjustment resulted from an incorrect application of the Guidelines
- finding that this court has jurisdiction under § 3742(a)(2) where defendant argues that the district court’s denial of a downward adjustment resulted from an incorrect application of the Guidelines
- observing that police-investigative tactics pose a “political problem” only, and that “[w]e deem it enough to support punishment that this person committed this offense, leaving to other institutions the redirection of investigative or prosecutorial resources”
- stating that, despite questions regarding its validity, “the doctrine of outrageous government conduct has not been expressly disavowed by the Supreme Court or by this circuit”
- stating that a bar to prosecution is not the remedy for governmental misconduct

## Opinion text

EASTERBROOK, Circuit Judge,
concurring.
I join the court’s opinion, which observes that Miller loses no matter the state of the “outrageous governmental conduct” defense. Our court has never reversed a conviction on the basis of this defense and has questioned language looking favorably on it. E.g., United States v. Bontkowski, 865 F.2d 129, 131-32 (7th Cir.1989); United States v. Podolsky, 798 F.2d 177, 181 (7th Cir.1986). When push comes to shove, we should reject the contention that the criminal must go free because the constable was too zealous. Why raise false hopes? Why waste litigants’ and judges’ time searching for and rejecting on the facts defenses that ought not exist as a matter of law? Everyone has better things to do. Cf. United States v. Wesson, 889 F.2d 134, 135 (7th Cir.1989).
Justice Rehnquist’s opinion in Hampton v. United States, 425 U.S. 484, 490 , 96 S.Ct. 1646, 1650 , 48 L.Ed.2d 113 (1976), supplies adequate reasons not to recognize a “due process” defense. Any claim to reversal of the conviction must rest on the proposition that the government’s “outrageous” conduct violated a right of the defendant — a personal right secured by the Constitution rather than invented for the occasion. The entrapment defense reflects a conclusion that the statute does not punish conduct that the government has induced the defendant to commit by breaking down his resistance. Sorrels v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958). The “due process defense” does not rest on a claim that the prosecutor seeks to exceed the reach of the statute; it supposes that the defendant committed the crime defined by law. It is more like a claim that the government is violating the community’s moral standards.
Defendants who think that the government went “too far” may make an entrapment defense or say that they lack the mens rea required of the offense. Miller had the necessary mens rea, however, and predisposition was established by earlier sales. So the traditional defenses were unavailable. As he committed the crime, he should stand convicted. If the investigators were too creative or squandered their limited resources, this is a political problem. Congress can hold oversight hearings or pass a law; we shouldn’t apply a chancellor’s foot veto. Dissipating law enforcement resources injures persons who become victims of crime when the deterrent force of the law declines. Reversing convictions of the guilty cannot apply balm to these wounds. Those who protest that social interests would have been served by prosecuting someone else (or some additional, similarly situated persons) routinely lose. E.g., Wayte v. United States, 470 U.S. 598 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985); FTC v. Universal-Rundle Corp., 387 U.S. 244 , 87 S.Ct. 1622 , 18 L.Ed.2d 749 (1967). We deem it enough to support punishment that this person committed this *1272 offense, leaving to other institutions the redirection of investigative or prosecutorial resources. Cf. McCleskey v. Kemp, 481 U.S. 279, 306-12 , 107 S.Ct. 1756, 1774-77 , 95 L.Ed.2d 262 (1987); Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989). So it should be here.
Justice Rehnquist’s opinion in Hampton did not speak for a majority of the Court, and some have read Justice Powell’s concurring opinion, 425 U.S. at 492-95 , 96 S.Ct. at 1651-53 , as adopting an “out-rageousness” defense. Put this together with the dissenting Justices in Hampton and you have five. If Justice Powell opened that door in Hampton , he shut it in United States v. Payner, 447 U.S. 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980), writing for a majority of six. Investigators hired a women to cultivate “friendship” with a bank’s courier. The courier paid a visit to the woman’s apartment; after a time they went to dinner. While they were gone, the agents rifled his briefcase and found documents incriminating the bank’s customers, who were prosecuted. They could not challenge the search under the fourth amendment because they did not have privacy interests in the briefcase. So they contended that the use of the evidence, gathered by “wilfully lawless activities”, 447 U.S. at 734 , 100 S.Ct. at 2445 , should be suppressed under the Due Process Clause and the court’s supervisory power. The Court declined the invitation, reasoning that the rules developed under the fourth amendment fully reflected the interests of society and suspects, and that replacing these rules with ill-defined supervisory or due process standards would undermine a balance properly struck. 447 U.S. at 733-37 , 100 S.Ct. at 2445-47 . And there was another problem:
[Ejven if we assume that the unlawful briefcase search was so outrageous as to offend fundamental “canons of decency and fairness,” the fact remains that “[t]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant, ” Hampton v. United States, supra, 425 U.S. at 490 , 96 S.Ct. at 1650 (plurality opinion).
447 U.S. at 737 n. 9, 100 S.Ct. at 2447 n. 9 (emphasis and ellipsis by the Court; citations and internal quotes omitted). This footnote quotes from and adopts the core of Justice Rehnquist’s assessment in Hampton .
Developments in other parts of the law since Payner reinforce its message that appeals to “fairness” are not satisfactory substitutes for legal rules. Take for example United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), which held that some evidence could be used even though obtained in violation of the defendant’s fourth amendment rights. Although some cases had justified the exclusionary rule on the ground that judges should not sully their hands with evidence got at unlawfully, the Court concluded that exclusion of probative evidence serves instrumental rather than moral ends, a difference with substantial consequences for the rule's scope. 468 U.S. at 907-08 , 104 S.Ct. at 3412-13 . Or consider Graham v. Connor, — U.S. —, 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), eliminating substantive due process as the basis of damages awards for excessive force in arrests, on the ground that legal rules should follow the constitutional provisions directly applicable — in Graham the fourth amendment. See also Gumz v. Morrissette, 772 F.2d 1395, 1404-09 (7th Cir.1985) (concurring opinion). Many more cases could be mined from the same vein.
“Outrageousness” as a defense does more than stretch the bounds of due process. It also creates serious problems of consistency. The circuits that recognize a “due process defense” can’t agree on what it means. How much is “too much”? The nature of the question exposes it as (a) unanswerable, and (b) political. What, if anything, could separate stirring up of crime in unpalatable ways here from the Operation Greylord methods sustained in United States v. Murphy, 768 F.2d 1518, 1528-29 (7th Cir.1985)? From the “creative” endeavors in Abscam? United States v. Jannotti, 673 F.2d 578 (3d Cir.1982) (en banc). From any of the “sting” *1273 operations? From the rest of the sordid drug business, so dependent on caitiff assistants? Any line we draw would be unprincipled and therefore not judicial in nature. More likely there would be no line; judges would vote their lower intestines. Such a meandering, personal approach is the antithesis of justice under law, and we ought not indulge it. Inability to describe in general terms just what makes tactics too outrageous to tolerate suggests that there is no definition — and “I know it when I see it” is not a rule of any kind, let alone a command of the Due Process Clause.
The kinds of prosecutions that trouble me most are not those like Operation Grey-lord or offers of sex in exchange for cocaine, but those that impose costs on the innocent. Take for example a sting in which the FBI sets up a fence and buys stolen goods. The money the government pumps into the business must lead people to steal things to sell to the FBI — with misery for the victims of the burglary and potential violence in the process. Stings have been upheld consistently, however, and we have concluded that the innocent victims cannot recover damages from the government. Powers v. Lightner, 820 F.2d 818 (7th Cir.1987). Methods such as those used to ensnare Miller do not injure bystanders and so do not trouble me. Other judges are offended by immorality (such as sponsoring an informant’s use of sexual favors as currency) or by acts that endanger informants (such as supplying them with drugs for personal use) but not by a traditional sting. This shows the subjective basis of the concern — all the more reason not to have such a doctrine in our law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479806. Public record. Not legal advice.