Petition for Writ of Certiorari — Tucker v. United States

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94 9% 7 NOV 2 31994

No.

OFFICE Or imc CLERK

In The

Supreme Court of the United States

October Term, 1995

4

BRENDA TUCKER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

4

Petition For Writ of Certiorari

To The United States Court of Appeals

For the Sixth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

WILLIAM D. MASSEY

Counsel of Record for Petitioner

100 N. Main, Suite 3010

Memphis, Tennessee 38103

(901) 525-4357

QUESTIONS PRESENTED FOR REVIEW

Whether the Court of Appeals for the Sixth Circuit was in

error when it determined that no outrageous conduct due

process defense exists to protect the citizens of the United

States from overzealous investigatory conduct which

creates crimes where none would have been committed

absent government intervention?

Whether the Court of Appeals for the Sixth Circuit was in

error when it determined that no outrageous conduct due

process defense should exist to protect the citizens of the

United States from overzealous investigatory conduct

which creates crimes where none would have been

committed absent government intervention?

‘i

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW................ i

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PETITION FOR WRIT OF CERTIORARI. .............. 1

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REASONS RELIED UPON FOR GRANTING THE WRIT OF

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1. The Court of Appeals for the Sixth Circuit erred when it

determined that no outrageous conduct due process

defense exists to protect United States citizens from

overzealous investigatory tactics which create crimes where

none would have been committed absent government

MATURED. » 004.6 ¢5000skesen eee 11

2 The Court of Appeals for the Sixth Circuit erred when it

determined that no outrageous conduct due process

defense should exist to protect United States citizens from

overzealous investigatory tactics which create crimes where

none would have been committed absent government

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APPENDIX A, United States v. Tucker, ___F.3d___, No. 93-6026

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APPENDIX B, Order Denying Petition for Rehearing and

Suggestion for Rehearing En Banc................. 1b

APPENDIX C, Magistrates Report...................... Ic

APPENDIX D, Order of the District Court................ 1d

APPENDIX E, Excerpt from District Court Transcript, pp.5-8. .1e

APPENDIX F, United States v. Solorio, 1994 WL 509047 (9th Cir.

iv

TABLE OF AUTHORITIES

CASES

Hampton v. United States, 425 U.S. 484 (1976). ..... 12,13, 16,22,23

Sherman v. United States, 356 U.S. 369 (1958). ..........--- 19

United States v. Barger, 931 F.2d 359 (6th Cir. 1991). 5,6,7,8,16,20

United States v. Beverly, 723 F.2d 11 (3d Cir. 1983).......... 18

United States v. Bogart, 783 F.2d 1428 (9th Cir.) vacated in part on

other grounds sub nom. United States v. Wingender, 790 F.2d

oe PETS TTT Ter 15,17,18

United States v. Chin, 934 F.2d 393 (2d Cir. 1991)........... 16

United States v. Davis, 15 F.3d 1393 (7th Cir. 1994).......... 16

United States v. Gardner, 658 F.Supp 1573 (W.D. Penn. 1987). .18

United States v. Gillespie, 321 F.2d 518 (6th Cir. 1963)........ 20

United States v. Gonzalez, 927 F.2d 139 (3d Cir. 1991)........ 16

United States v. Huff, 959 F.2d 731 (8th Cir. 1992)........... 21

United States v. Kummer, 15 F.3d 1455 (8th Cir. 1994). ..... 17,21

United States v. Lard, 734 F.2d 1290 (8th Cir. 1984). . . 15,17,23,24

United States v. Michael, 17 F.3d 1383 (11th Cir. 1994)....... 17

EE —_ — = a —— _ EEE — = ae

Vv

United States v. Mosely, 965 F.2d 905 (10th Cir. 1992)........ 17

United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991)....... 18,21

United States v. Osborne, 935 F.2d 32 (4th Cir. 1991)......... 16

United States v. Russell, 411 U.S. 423 (1973)......... 12,17,22,24

United States v. Santana, 6 F.3d 1 (1st Cir. 1993). 13,15,16,18,23,26

United States v. Smith, 7 F.3d 1164 (Sth Cir. 1993)........... 16

United States v. Solorio, 1994 WL 509047

oe Pee ey rrr 13,14,17,18,24,25,28

United States v. Tucker, --- F.3d ---, No. 93-6026

Ger es PL hrc cene eedeeuns 9,10,11,15,18,20,26,27

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978)........ 13,18

MISCELLANEOUS

Kent Greenawalt, Reflections on Holding and Dictum, 39 J. LEGAL

Sg SPR COE hi yh eb OREN w ee ee ee ee een eres 21

SE a BR ois iA ee .20

United States v. Simpson: ’Outrageousness!’ What Does It Really

Mean? -- An examination of the Outrageous Conduct

Defense, 18 Sw. U.L. Rev. 105 (1988).............. 12

1

PETITION FOR WRIT OF CERTIORARI

The petitioner, Brenda Tucker, respectfully prays that a

writ of certiorari issue to review the judgment of the United States

Court of Appeals for the Sixth Circuit, which denied the timely

petition for rehearing in this matter and suggestion for rehearing

en banc on August 26, 1994.

OPINION BELOW

On July 15, 1994, the United States Court of Appeals for

the Sixth Circuit reversed the district court’s ruling affirming the

magistrate’s recommendation for dismissal of the indictment due

to the outrageous conduct of the government in inducing the

defendant to violate the law. The decision of the Sixth Circuit is

included with this petition as Appendix A. The Petitioner’s timely

Petition for Rehearing En Banc pursuant to Fed. R. App. P. 40,

and Suggestion for Rehearing En Banc pursuant to Fed. R. App.

P. 35 were denied on August 26, 1994. A copy of the Order

denying the Petition for Rehearing in the Court of Appeals is

included as Appendix B.

JURISDICTION

The order of the Court of Appeals for the Sixth Circuit

denying Ms. Tucker’s Petition for Rehearing was entered on

August 26, 1994. Appendix B. This Petition for Writ of Certiorari

is filed within ninety days of that date, pursuant to Supreme Court

Rule 13.4. The jurisdiction of this Court is invoked under 28

U.S.C §1254(1).

2

STATEMENT OF THE CASE

The following pertinent facts are found in the magistrate

judge’s report of April 6, 1993, which were adopted by the district

court in its oral ruling of May 28, 1993. See Appendix C,

Magistrate’s Report.

Brenda Tucker was indicted on September 22, 1992, by the

federal grand jury for the Western District of Tennessee for

violations of 7 U.S.C. § 2024(b)(1) and 18 U.S.C. § 2. The grand

jury returned a superseding indictment on February 16, 1993,

charging Brenda Tucker with purchasing, and aiding and abetting

in the purchase of food stamps at less than face value in violation

of the aforementioned provisions. Ms. Tucker filed a motion to

dismiss the indictment due to the outrageous conduct of the

government in inducing her to purchase the stamps. United States

Magistrate Judge Aaron Brown held evidentiary hearings on the

motion and accordingly recommended dismissal of the indictments

on April 6, 1993. Notwithstanding the filing of the government’s

exceptions to this recommendation, United States District Court

Judge Jerome Turner adopted the Magistrate’s report and

dismissed the indictment on June 3, 1993. See Appendix D.

The United States filed a notice of appeal on June 30,

1993, and the Sixth Circuit reversed the district court’s dismissal

on July 15, 1994, and remanded the matter for trial. Ms. Tucker’s

timely petition for Rehearing pursuant to Fed. R. App. P. 40, and

Suggestion for Rehearing En Banc pursuant to Fed. R. App. P. 35

were denied on August 26, 1994. Appendix B.

Pertinent facts:

Linda Hancock was hired by Clifford White, an agent of

the United States Department of Agriculture, as an undercover

operative to sell food stamps. White furnished Hancock with food

stamps issued by the Department of Agriculture and instructed

3

Hancock to sell them. For this service, Hancock was paid 50 cents

for each dollar’s worth of food stamps she was able to sell. She

was also paid mileage for her vehicle regardless of whether she

made any sales. She was given no supervision and no instructions

regarding the targeting of potential buyers, and White in fact told

her that he "[didn’t] care who you sell them to, if you think you

know of anybody that will buy them at 50/50."

The petitioner, Brenda Tucker, owned and operated a

beauty salon in Memphis. Hancock was Ms. Tucker’s former next-

door neighbor of approximately eight years, whom Ms. Tucker

also considered a personal friend. Ms. Tucker and Hancock

continued their friendship after they were no longer neighbors. In

fact, Hancock periodically consulted Ms. Tucker regarding her

personal problems, including work difficulties, health problems,

and even extremely personal marital problems which ended in

divorce. Ms. Tucker often gave Hancock advice, or just listened

to her. Ms. Tucker could empathize with many of Hancock’s

difficulties since Ms. Tucker, too, was a victim of divorce and was

aware of the stress of trying to raise children alone with no

support. Ms. Tucker was aware that due to all of Hancock’s

problems, Hancock was in distress. As a result, Ms. Tucker made

a special effort to be sympathetic with Ms. Hancock.

Tucker had never purchased food stamps before, and her

only criminal history was a shoplifting conviction seventeen years

prior to the November 1990 incident.

In November of 1990, Hancock contacted Tucker by

telephone at the beauty salon and asked if she, Tucker, wanted to

buy some food stamps. Ms. Tucker told Ms. Hancock that she did

not buy food stamps and did not want any. Hancock then told

Ms. Tucker that she had financial problems and wanted some

money to pay her light bill, and asked Tucker if she knew of

anyone else who might purchase the stamps, but Tucker did not.

Ms. Tucker assumed that the stamps which Hancock was

4

attempting to sell belonged to Hancock, and she further did not

know that purchasing food stamps was illegal.

Prior to November 16, 1990, Hancock called Tucker

several times at her business and at home concerning the purchase

of food stamps. Ms. Tucker told Hancock on each occasion she

was uninterested and refused to purchase any stamps. Hancock

continued to tell Tucker that she was having financial problems

and needed assistance paying her utility bill. Finally, after many

calls and pleas, Ms. Tucker relented and stated, "Well, okay, bring

them.” Ms. Tucker then bought food stamps on November 16,

1993.

Shortly after the November 16, 1990 purchase, Hancock

told Tucker that at the time she, Hancock, was in dire financial

straits, and she would be unable to provide her children with a

proper Christmas. Ms. Tucker told Hancock that she was not

interested in any food stamps. A second time, Hancock visited the

salon soliciting food stamps, and Tucker again refused, stating that

she did not have the cash which Hancock required. Hancock

insisted that Ms. Tucker send one of her workers to cash a check

so that Tucker would be able to purchase the stamps. Ms. Tucker

relented because she felt sorry for Hancock’s children who were

friends of her children. Ms. Tucker also felt badly for Hancock

because she knew that Hancock’s husband mistreated her. Ms.

Tucker simply wanted to help Hancock.

After examining this evidence, the magistrate judge

concluded that Hancock played upon Tucker’s sympathy in order

to induce her to purchase food stamps. Specifically, Magistrate

Judge Aaron Brown stated:

Ms. Hancock picked Ms. Tucker out because Ms.

Tucker was a personal friend. There is no

indication that . . . Ms. Tucker [was] even

contemplating the purchase of food stamps prior to

Ms. Hancock’s arrival. Ms. Hancock came, with

5

her tales of woe, and induced [Tucker] to buy the

stamps. See Appendix C.

The magistrate judge considered the four factors in United

States v. Barger, 931 F.2d 359 (6th Cir. 1991), for determination of

whether governmental conduct is so outrageous as to constitute a

violation of the Due Process Clause of the Fifth Amendment. He

then applied his factual findings to the following criteria of Barger:

(1) The need for police conduct as shown by the

type of criminal activity involved, (2) the impetus

for the scheme or whether the criminal enterprise

pre-existed the police involvement, (3) the control

the government exerted over the criminal

enterprise, and (4) the impact of the police activity

on the commission of the crime.

Barger, 931 F.2d at 363.

With respect to the need for the police conduct in light of

the particular criminal activity, the magistrate judge made the

following factual findings in his report:

The record is totally devoid of any evidence

establishing a need for the government to send Ms.

Hancock to sell food stamps to her friends and

acquaintances and thus create crimes. There is no

evidence, or indication, that Ms. Tucker . . . ever

bought any food stamps or engaged in any illegal

activity remotely similar to that. Appendix C.

Although Hancock testified that her knowledge of Ms.

Tucker’s previous shoplifting conviction in the early 1970’s led her

to believe that Ms. Tucker might be inclined to buy food stamps,

| the magistrate judge stated in his report that Hancock had no

| information "concerning a propensity on the part of Ms. Tucker .

. . to purchase food stamps or that [Tucker] engaged in such

activity in the past.” Appendix C.

The district court also distinguished the need for police

6

activity in Barger, which involved the infiltration of a government

agent in a Hell’s Angel motorcycle group, from the need in the

present case:

In the Barger case much more serious

ramifications of criminal conduct were expected by

the government with good cause. And it was

reasonable to believe that those people who were

being interacted with undercover were dangerous

and might respond in injurious and even

murderous ways. In this case, given the record

that was presented to the Magistrate and as he

found those facts to be, there is simply no evidence

that these people were suspected of having been

involved in any trafficking. There were just

ordinary people who were approached by a

confidential informant working on a contingency

fee basis that was a friend . . . who used

sympathetic ruses, . . . about her health and her

children. See Appendix E, Excerpt from District

Court Transcript.

The magistrate judge next considered the second Barger

factor, namely "the impetus for the scheme or whether the

criminal enterprise pre-existed the police involvement,” and he

found:

The impetus for the scheme appears simply to

have been a desire by the government to lure

anyone into committing the crime of buying food

stamps. Neither Ms. Tucker nor [her co-

defendant] were engaged in any criminal enterprise

prior to being approached by Linda Hancock. See

‘ The transcript of the May 29, 1993 report date erroneously reads

"Barter." See Appendix E.

Appendix C.

The district judge also commented on the impetus factor

in light of the controlling facts and Barger:

[T]he totality of those facts reflect a shocking

invasion, in my view, by a hired confidential

informant who was working for the government

apparently on a contingency fee basis, as

determined by the Magistrate, who elected by the

freedom given her by her case agent to delve into

the private lives of ordinary people who were not

otherwise suspected of any wrong doing. And

while I recognize that the police and investigative

agencies have to have great leeway to investigate

crime and to go under cover, I do not think that

the kind of investigatory conduct that took place in

this case is acceptable conduct under the due

process clause. . . . I don’t think we are at a point

in our criminal history where the government

needs to lower itself into targeting sympathetic

ploys on citizens that are not otherwise suspected

of engaging in criminal conduct, particularly when

some of the conduct that the Magistrate found to

be true was used in these sympathetic ploys. See

Appendix E.

The magistrate judge then commented on the control

element of Barger:

The government exercised compete control over

this crime. Ms. Hancock picked Ms. Tucker out

because Ms. Tucker was a personal friend. . . .

There is no indication that [Ms. Tucker was] even

contemplating the purchase of food stamps prior to

Ms. Hancock’s arrival. Ms. Hancock came, with her

8

tales of woe, and induced [Tucker] to buy the

stamps. Ms. Hancock delivered them and received

a cut of the proceeds for inducing her friend . . . to

commit crimes. See Appendix C.

The district court likewise found:

The confidential agent went to a. . . former

neighbor and friend. She used sympathetic reasons

of ill health and deprived children. And she alone

initiated the opportunity for this crime to occur

and initiated it through ruses and with those

friends, who I point out again with some emphasis,

were people that were not suspected by the

government of having been involved in criminal

trafficking for food stamps. See Appendix E.

With respect to the fourth Barger factor, the impact of the

police activity on the commission of the crime, the magistrate

judge said that it was

intricately related to the third factor. It was Ms.

Hancock’s activity on behalf of the Department of

Agriculture that brought about the commission of

the crime. There is no indication that the crimes

would have been committed but for Ms. Hancock’s

activities. See Appendix C.

The magistrate judge noted that courts have permitted an

outrageous conduct/due process defense even though a

defendant’s conduct would preclude an entrapment defense. He

concluded:

I believe that this case is one that should be

dismissed without regard to the defendant’s ability

to mount an entrapment defense. We are not

dealing with an effort by a government agent to

trap someone he suspected of committing a crime.

What we have instead is a government agent hiring

9

a person, on a percentage contract, to go out and

induce anyone she chose, including personal

friends, to violate the law. I believe this conduct

goes far beyond the bounds of propriety and

should not be countenanced. See Appendix C.

The district court recognized the seriousness of the food

stamp offense and the need for legitimate law enforcement

techniques, but agreed with the magistrate judge that this offense

... is nothing like the offense and the possibility of

injury that was involved in Barger. It is not such a

terrible offense that the government, in my view,

should be permitted to use agents under the

totality of the facts in this case. . . . It is the totality

of the facts in this case that have convinced me

that the conduct has gone beyond the due process

limitations. . . . [When [law enforcement

techniques] are employed in totality with people

who are not otherwise suspected of engaging in

crime, it seems to me that the conduct, as the

Magistrate concluded, crosses that boundary. See

Appendix D.

The district court then advised counsel that its remarks

could be used as the court’s opinion in this case. See Appendix D.

On appeal, rather than determining whether the

government’s undercover tactics crossed the line from inventive

thorough investigation to outrageous opprobrious conduct, the

Sixth Circuit Court of Appeals held that the defense of outrageous

government conduct is not available to the petitioner, and thus

rejected "as a matter of law the theory upon which defendants

based their motion to dismiss without regard to the particular facts

of their case and without reaching the issue of whether or not

those facts can properly be characterized as ’outrageous”. See

Appendix A, United States v. Tucker, _ F.3d___, No. 93-6026

10

(6th Cir. 1994).

The court found no authority, Supreme Court, Sixth

Circuit, or otherwise which would require it to recognize such a

defense, save one Third Circuit decision, which has since allegedly

been disavowed by the Third Circuit. See Appendix A, Jd. at 11.

Numerous references to the defense in Supreme Court, Sixth

Circuit, and other appellate court decisions were simply dicta

because, although the courts examined the doctrine of outrageous

conduct, and applied accepted criteria to the facts of each case to

determine whether the defense could be successfully asserted,

none of the facts of these cases rose to the level of outrageous

conduct, and the defense was rejected accordingly. Id. at 8-14.

While devoting the bulk of the opinion to elaborately detailing why

all these inconsistent decisions were merely dicta, the court briefly

recited three reasons why such a defense should not be

recognized:

(1) government conduct which induces a defendant

to commit a crime, even if labelled "outrageous,"

does not violate that defendant’s constitutional

right of due process; (2) the district court lacked

authority to dismiss the indictment for

governmental misconduct where no violation of an

independent constitutional right has been shown;

and (3) continued recognition of this "defense"

stands as an invitation to violate the constitutional

separation of powers, intruding not only on the

province of the Executive Branch but the

Legislative Branch as well.

Id. at 14.

The Sixth Circuit thus reversed the district court’s dismissal

of the indictment and remanded the case for trial.

Boyce F. Martin, Circuit Judge, filed a concurring opinion

in which he stated that he could not agree with the majority’s

11

characterization of some two dozen Sixth Circuit cases which

addressed and ruled on the doctrine of outrageous conduct as

dicta. However, he concurred in the result because he did not

believe that the government’s conduct rose to the level of

outrageous. Jd. at 20-21.

REASONS RELIED UPON FOR GRANTING A WRIT OF

CERTIORARI

1. The Court of Appeals for the Sixth Circuit erred when it

determined that no outrageous conduct due process

defense exists to protect United States citizens from

overzealous investigatory tactics which create crimes

where none would have been committed absent

government intervention.

Supreme Court Rule 10.1(a) provides that this Court may

grant a writ of certiorari "[w]hen a United States court of appeals

has rendered a decision in conflict with the decision of another

United States court of appeals on the same matter;”

The decision of the United States Court of Appeals for the

Sixth Circuit in United States v. Tucker which held that no

outrageous conduct due process defense exists is in direct conflict

with Third and Ninth circuit authority. Further, the decision is, at

least, in apparent conflict with all other circuits including previous

Sixth circuit precedent. The decision is a dangerous aberration,

which, if left unchallenged may succeed in abolishing, in at least

the Sixth Circuit, a doctrine which has been developing for the last

twenty years, and is necessary to insure that people are not

punished for crimes which the government creates.

The genesis of this doctrine in the Supreme Court can be

found in the 1973 decision of United States v. Russell, 411 U.S. 423

12

(1973), where a majority of the Supreme Court approved the

subjective view of entrapment, whereby the conduct of the

particular defendant is examined for evidence of any

predisposition toward committing the crime at hand. Such

predisposition will preclude successful assertion of an entrapment

defense. The Court rejected an objective approach to entrapment,

which would focus, not on the defendant’s conduct, but instead, on

"whether the police conduct revealed in the particular case falls

below standards to which common feelings respond, for the proper

use of governmental power." Russell, 411 U.S. at 440-41 (Stewart,

J. dissenting). However, the Court left the door open for the

existence of such an objective theory founded in due process

concerns of fundamental fairness, which would focus on the

outrageous conduct of the government, when it stated that the

Court "may some day be presented with a situation in which the

conduct of law enforcement agents is so outrageous that due

process principles would absolutely bar the government from

invoking judicial processes to obtain a conviction.”

In Hampton v. United States, five Justices appeared to

agree that even if a defendant was predisposed to commit a

certain crime, the conduct of the government might reach a

"demonstrable level of outrageousness" meriting a bar of a

2 Although the outrageous conduct doctrine is often confused with or

described as an objective entrapment approach, the two actually are quite

different theories. The outrageous conduct defense focuses on whether the

government has violated the defendant’s due process rights with, for instance,

their aggressive detective processes, and thus turns on whether the

government has acted unconstitutionally. Entrapment, on the other hand, is

a common law defense which focuses on whether the defendant had a

predisposition to commit a certain crime, regardless of the tactics employed

by the government in its investigation. Entrapment does not derive its power

from the constitution. See United States v. Simpson: ’Outrageousness!’ What

Does It Really Mean?--An Examination of the Outrageous Conduct Defense, 18

Sw. U.L. REV. 105 (1988).

13

conviction for due process reasons.’ Although Hampton lost the

case due to predisposition, the outrageous conduct issue was again

left open, and this time, garnered a great deal of support. Justice

Powell specifically stated in his concurrence that he could not

agree with the plurality that "no matter what the circumstances,

neither due process principles nor [the Court’s] supervisory power

could support a bar to conviction in any case where the

Government is able to prove disposition" and further stated that

the judiciary should bar a defendant’s conviction "as a matter of

law where the subject of the criminal charge is the sale of

contraband provided to the defendant by Government agent.” Jd.

(Powell, J., concurring). According to United States v. Santana, 6

F.3d 1 (1st Cir. 1993), Hampton legitimated the doctrine of

outrageous conduct.

Since the Hampton decision, every United States Court of

Appeals has been faced with the outrageous conduct defense and

has examined the cases to determine if the convictions should be

judicially barred due to the government’s tactics. Not surprisingly,

government action has rarely been proven to rise to this level.

However, two circuits, the Ninth and the Third, have reversed

convictions due to the government’s overactive involvement in the

creation of the crimes.

In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), the

defendant was convicted by the government’s use of an informant

who contacted the defendant to set up a drug laboratory. The

government provided the informant with the equipment and

chemicals to create the lab, and a building in which to house it.

The informant then controlled the finished lab. In fact, the

informant directed the defendant in all of his actions. The

> 425 US. 484, 495 n.7 (1976) (Powell, J., concurring.) Justices Powell,

Blackmun, Brennan, Marshall, and Stewart expressed their support for a due

process based challenge. See, id. at 495 (Powell, J., concurring); Id. at 496-499

(Brennan, J., dissenting).

14

defendant did not furnish supplies, money, or skills to the scheme;

he simply followed the informant’s suggestions and instructions,

using the informant’s tools and space. The Third Circuit

determined that these circumstances rose to a level of

outrageousness sufficient to reverse the conviction, since the

government’s actions violated concepts of fundamental fairness. Id.

at 381.

Similarly, in United States v. Solorio, 1994 WL 509047 (9th

Cir. 1994) attached hereto as Appendix F, decided shortly after

the Tucker decision, the Ninth Circuit reversed a conviction due

to the overzealous tactics of the government. The government

obtained the conviction for conspiracy to sell methamphetamine

of defendant Bobby Thomas through the use of an informant who

was paid on a contingency basis for every successful conviction.

The informant, Barruetta, was paid depending on the success of

the operation, the amount of drugs involved, and the value of any

assets seized in the operation. Barruetta was paid only minimum

wage for his time spent on unsuccessful operations. For his

services in the Thomas case, he was paid $2000, and in fact earned

more that $50,000 overall in his role as an informant. To say that

Barruetta had great incentive to create convictions for the

government is an understatement. In fact, just prior to the

transaction which led to Thomas’ conviction, Barruetta remarked

to a DEA agent, "We'll see if this goes through, son of a bitch, I

need some cash. I practically don’t have tires left, son of a bitch."

Id. at *1. Barruetta approached a friend of Thomas’, and a known

drug-dealer who was the target of this investigation, and expressed

interest in obtaining methamphetamine. Thomas friend

subsequently approached Thomas, asking him to help find the

requested drugs. Although Thomas at first refused, he eventually

relented. Although offered marijuana and cocaine, he declined

the drugs. He expected to make no money from this deal, but was

attempting to help his friend. When the drugs were delivered to

15

Thomas, he and the others involved were arrested.

The Ninth Circuit found that this conduct was so

outrageous that "due process principles should bar the government

from invoking judicial processes to obtain a conviction." Id. at *7.

The court found that contingent fee arrangements such as the one

employed in this case which depend, not on the amount of

information obtained, but instead on the drug amounts involved

and seized, and the success of the prosecution, [create] perverse

incentives for confidential informants". Jd. at *4. The court

further found that "[hJere, these incentives were compounded by

the fact that the confidential informant was the choreographer of

the crime." Jd. Thus, the court refused to condone the conduct

and reversed the conviction. Id. at *6.‘

Although these two cases are the only courts of appeals

cases to squarely base their holdings on the validity of the doctrine

of outrageous conduct,’ every other circuit has taken the time, the

resources and the effort to examine various cases under the

framework of the outrageous conduct doctrine, although ultimately

determining that the circumstances of each particular case did not

rise to the level of outrageousness required for reversal of

convictions.

In United States v. Santana, 6 F.3d 1 (ist Cir. 1993),

although refusing to apply the outrageous conduct doctrine to the

* Although this case was decided after the Tucker decision, it’s holding

serves to sufficiently rebut Tucker’s assertion that the doctrine of outrageous

conduct only exist in dicta, or a current subject of ridicule.

5 The Sixth Circuit in Tucker correctly lists two other decisions which have

"come close" to finding an outrageous conduct violation: United States v.

Bogart, 783 F.2d 1428, 1438 (9th Cir.) vacated in part on other grounds sub

nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986), which remanded

the case to the district court for determination of the outrageous conduct

issue, and United States v. Lard, 734 F.2d 1290 (8th Cir. 1984), which found an

entrapment violation, but stated, in addition, that the conduct of the

government “approached” outrageousness. Jd. at 1296.

16

facts of that case, the First Circuit Court of Appeals nevertheless

noted that Hampton "succeeded in legitimating the doctrine," and

then devoted twelve pages of thoughtful commentary to the

subject. Jd. at 3. The court concluded its opinion by stating that

the outrageous conduct doctrine, no matter how

cramped its confines, is not entirely mummified.

Should the occasion and the necessity arise, we

continue to believe that the law will prove itself

adequate to the task of preventing the government

from going too far. In the war on crime, as in

conventional warfare, some tactics simply cannot

be tolerated by a civilized society.

Santana, 6 F.3d at 10.

The Second Circuit, in United States v. Chin, 934 F.2d 393

(2d Cir. 1991), stated that finding an outrageous conduct violation

"must turn on whether the governmental conduct, standing alone,

is so offensive that it shocks the conscience." Jd. at 398.

In United States v. Gonzalez, 927 F.2d 139 (3d Cir. 1991),

the Third Circuit left open the possibility that the actions of the

government might t be "so outrageous that due process principles

would absolutely bar the government from invoking judicial

processes to obtain a conviction." Jd. at 144.

In United States v. Osborne, 935 F.2d 32 (4th Cir. 1991), in

order to find a due process violation, the Fourth Circuit required

governmental conduct which is "so outrageous as to shock the

conscience of the court." Id. at 36.

Similarly, the Fifth Circuit, in United States v. Smith,

opined that extremely “outrageous police conduct may afford the

accused a substantive defense to the prosecution." Jd. at 1167.

Prior to the Tucker decision, the Sixth Circuit, in United

States v. Barger, 931 F.2d 359 (6th Cir. 1991), stated that "a

plurality of the United States Supreme Court in Hampton (citation

omitted) indicated that some police conduct might be so egregious

17

as to violate the accused’s due process rights", but that the

"challenged government conduct must violate fundamental fairness

and be ’shocking to the universal sense of justice.” Jd. at 363

(quoting United States v. Russell, 411 U.S. 423, 432). Although

ultimately determining that the conduct in Barger was not sc

shocking, the court did enumerate four factors to use in making

such a determination, and thoroughly considered these factors in

light of the instant facts.

The Seventh Circuit, in United States v. Davis, 15 F.3d 1393

(7th Cir. 1994), noted, as have other circuits that "[t]he outrageous

conduct doctrine presents an extremely narrow opportunity for a

defendant to challenge government conduct violating his due

process rights." Jd. at 1415.

In United States v. Kummer, the Eighth Circuit agreed with

the accused who asserted that "the due process/outrageous

conduct argument was not foreclosed by Hampton" but could not

agree that the government’s conduct, in Kummer’s case, was

"sufficiently unpalatable to require a finding that his due process

rights were violated.” Jd. at 1459-60.

Further, in United States v. Lard, 734 F.2d 1290 (8th Cir.

1984), the court concluded that the government entrapped Lard,

but also noted that "apart from the entrapment defense, [the

government’s conduct] here approached being so outrageous that

due process principles should bar the government from invoking

judicial processes to obtain a conviction. Jd. a 1296 (quoting

United States v. Russell, 411 U.S. at 431-32).

In United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986),

the Ninth Circuit noted that they "have repeatedly held that the

due process outrageous conduct defense survived the [Supreme]

Court’s review." Id. at 1432.°

¢ In 1994, the Ninth Circuit recognized an outrageous conduct violation

in United States v. Solorio, 1994 WL 509047 (9th Cir. 1994).

18

The Tenth Circuit in United States v. Mosely, 965 F.2d 905

(10th Cir. 1992), plainly stated that "outrageous conduct is a viable

defense." The court further noted that "[w]hen the government’s

conduct during an investigation is sufficiently outrageous, the

courts will not allow the government to prosecute offenses

developed through that conduct." Jd. at 908-09.

The Eleventh Circuit, in United States v. Michael, 17 F.3d

1383 (11th Cir. 1994), stated that in egregious cases, "federal

courts possess the authority to dismiss an indictment for

governmental misconduct." Jd. at 1386.

In United States v. Nicely, 922 F.2d 850 (D.C.Cir. 1991), the

District of Columbia Circuit noted that "police overinvolvement”

could "violate due process", but concluded that this was not such

a case. Jd. at 860.

The Sixth Circuit, in Tucker, conceded that in more than

two dozen cases, the court has addressed the outrageous conduct

doctrine, but has rejected the application of the doctrine to the

facts of each case. Thus, the court termed every word uttered

about this doctrine in each of these two dozen cases as merely

dicta, and found no Sixth Circuit authority "which holds that the

government’s conduct in inducing the commission of a crime, if

"outrageous" enough, can bar prosecution of an otherwise

predisposed defendant under the Due Process Clause of the Fifth

Amendment." Tucker, at 10. Likewise, the court defined decisions

of other circuits as dicta because, although the doctrine was

mentioned, discussed, and ruled upon, the courts, with one

exception, found that the doctrine did not apply to the facts of the

cases. The court discounted the one case which it acknowledged

had found a due process outrageous conduct violation, United

States v. Twigg, because other Third Circuit opinions have either

declined to follow the case, or have criticized the reasoning in the

case. See Tucker, at 11 (citing United States v. Beverly, 723 F.2d -

11,12 (3d Cir. 1983). However, other subsequent decisions have

19

followed Twigg, and have found merit in its reasoning. See United

States v. Bogart, 783 F.2d 1428, 1434 n.3 (9th Cir. 1986); United

States v. Gardner, 658 F.Supp. 1573, 1579 (W.D.Penn. 1987).

The court specifically states that the defense has been

recently subjected to ridicule in the case of United States v.

Santana, 6 F.3d 1 (ist Cir. 1993), because the First Circuit

characterized the doctrine as the "deathbed child of objective

entrapment, a doctrine long since discarded in the federal courts."

Id. at 3-4. However, and on the contrary, the First Circuit is

colorfully describing how the outrageous conduct doctrine was

born of the death of the objective entrapment theory. Objective

entrapment is dead in the federal courts,’ but outrageous conduct

remains. The true meaning of the court’s statement is glaringly

obvious from the remainder of the court’s opinion. The court

notes that "case after case confirms its continued existence," and

cites a dozen cases in support of this statement. Id. at 4.

Although the court eventually rejects the application of the theory

to the instant facts, it makes clear that the doctrine is not

"mummified", and opines that "[s]hould the occasion and the

necessity arise, we continue to believe that the law will prove itself

adequate to the task of preventing the government from going too

far" because, "[iJn the war on crime. . . some tactics simply cannot

be tolerated by a civilized society." Id. at 12.

The doctrine is not dead, and these decisions are not dicta.

Most of the cases discussed above are extremely recent, not

discarded ancient decisions which have fallen into disfavor. The

most recent, Solorio, is the most vocal champion of the doctrine.

In Solorio, the Ninth Circuit describes the doctrine as a

"prophylactic rule that enables the courts to exercise a supervisory

role over the government’s activities and to ensure that the

executive branch carries out its tasks in a lawful manner." After

7 See Sherman v. United States, 356 U.S. 369, 372 (1958).

20

examining the overzealous sting operation which resulted in

wrongful conviction, the court ruled that "[w]e cannot condone the

government’s actions in this case. Law enforcement agents are

entrusted with awesome power. But with that power also comes

a responsibility to guard against its abuse, a responsibility that the

government has abdicated." These are not words spoken of a

dying, ridiculed doctrine. These are the words spoken of a

doctrine which is a living, suckling infant growing as the courts

fulfill their oversite function.

In addition, describing the hundreds of decisions on this

subject in the courts of appeals as dicta is nothing but a semantical

escape route derogating to every judge on every court which has

expended time, effort, and considerable thought in examining and

ruling upon this issue. The Sixth Circuit held, in United States v.

Gillespie, 321 F.2d 518 (6th Cir. 1963), that a decision is not

dictum if the issue was properly before a court, and was argued

upon, and decided upon. /d at 530. This was the case in the

numerous cases previously cited. In fact, Judge Martin, in his

concurrence to the Tucker opinion agrees:

In Barger and in United States v. Payne, 962 F.2d

1228, 1231-33 (6th Cir.), cert. denied, 113 S.Ct. 306,

and cert. denied, 113 S.Ct. 811 (1992), . . . we

engaged in a lengthy analysis of each factor under

the circumstances of the particular case. This

analysis was undertaken, in both instances, in a

separate section of the opinion devoted solely to

the briefed and argued issue of outrageous

government conduct, and not simply in a passing

statement or cursory, superfluous commentary.

Accordingly, I cannot agree with the majority’s

characterization of this repeated treatment as

dicta. It seems clear to me that this Circuit has

recognized outrageous government conduct as a

— owe

21

valid due process defense, and as the majority

concedes, the Supreme Court has not clearly held

otherwise.

Tucker, at 21 (Martin, J. concurring).

In addition, Black’s Law Dictionary defines "dictum" as "[a]

) statement, remark, or observation. . . which a party is not bound

to make," while "holding" is defined as "the legal principle to be

drawn from the opinion of the court." More succinctly, holding is

what a case establishes, while dictum is "what its opinion may say

that is not established." Kent Greenawalt, Reflections on Holding

and Dictum, 39 J.LEGAL Epuc. 431 (1989).

The statements of all these courts in all these decisiuns

were not merely remarks or observations which the court was not

required to make. These rulings were the courts thorough

attempts to address the question which was properly before them:

whether the government’s conduct rises to a shocking intolerable

level, so as to offend due process. These rulings did constitute

legal principles to be drawn from the opinions of the courts, and

did establish that these actions, that these courses of conduct of

the government, did not rise to the necessary level to legally

constitute outrageous conduct sufficient to bar the prosecutions.

This is abundantly clear from court’s statements regarding

prior decisions rejecting the application of the outrageous conduct

doctrine to specific factual situations. Many courts which have

refused to find a due process violation on the facts before them

have done so by comparing the instant situation with that of

previous cases which found no violation. In United States v.

Kummer, the court cited the previous decision of United States v.

Huff, 959 F.2d 731 (8th Cir. 1992), which was factually similar to

the Kummer situation, and where the Eighth Circuit found no

outrageous conduct due process violation. The Kiwnmer court

stated that "[t}]he relevant facts here are not substantially different

from those in Huff. We therefore do not find that the police

22

conduct in this case was so outrageous as to constitute a violation

of Kummer’s due process rights." Kurnmer, 15 F.3d at 1460. See

also, United States v. Nicely, 922 F.2d 850 (D.C.Cir. 1991). The

decisions of these courts do more than merely assuming that the

doctrine exists while stating that it would not apply to the facts at

issue; these courts hold that the doctrine of outrageous conduct

does not apply to the circumstances before them. These are legal

holdings, and should be regarded as applicable precedent.

2. The Court of Appeals for the Sixth Circuit erred when it

determined that no outrageous conduct due process

defense should exist to protect United States citizens from

overzealous investigatory tactics which create crimes

where none would have been committed absent

government intervention.

According to Supreme Court Rule 10.1(c), a petition for

writ of certiorari may be granted "[w]hen . . .a United States court

of appeals has decided an important question of federal law which

has not been, but should be settled by this Court." The decision

of the United States Court of Appeals for the Sixth Circuit in

Tucker has decided the important issue of the existence of the

doctrine of outrageous conduct. The question of whether this

doctrine should exist to address overzealous government

investigation tactics is ripe for decision of this Court.

As discussed previously, Supreme Court decisions have

refused to foreclose the possibility of the existence of an

outrageous conduct defense. In United States v. Russell, 411 U.S.

423 (1973), the Court stated that it "may some day be presented

with a situation in which the conduct of law enforcement agents

is SO outrageous that due process principles would absolutely bar

the government from invoking judicial processes to obtain a

23

conviction.” Jd. at 423. Further, five justices appeared to agree,

in Hampton, that even if a defendant was predisposed to commit

a certain crime, the conduct of the government might reach a

"demonstrable level of outrageousness" meriting a bar of a

conviction for due process reasons.’ Specifically, Justice Powell

refused to agree with the plurality that "no matter what the

circumstances, neither due process principles nor [the Court’s]

supervisory power could support a bar to conviction in any case

where the Government is able to prove disposition" and further

stated that the judiciary should bar a defendant’s conviction "as a

matter of law where the subject of the criminal charge is the sale

of contraband provided to the defendant by Government agent."

Hampton, 96 S.Ct. at 1646-1654. According to United States v.

Santana, 6 F.3d 1 (ist Cir. 1993), Hampton legitimated the

doctrine of outrageous conduct, which the Sixth Circuit Court of

Appeals has attempted to wholly reject.

The clearest illustrations of the necessity of this doctrine

are the decisions which have embraced it. In United States v.

Twigg, the government procured an indictment and ultimately a

conviction by using an informant who contacted the defendant to

set up a drug laboratory. The informant, through the government,

furnished the equipment and chemicals necessary to create the

lab, and the building in which the lab was housed. The informant

almost single handedly created the lab and then exercised control

over the finished lab. In fact, the informant directed the

defendant in all of his actions. The defendant furnished no

supplies, money, or skills to the enterprise; he simply followed the

informant’s suggestions and instructions using the informant’s

tools, space, and expertise. The Third Circuit stated that

* 425 US. 484, 495 n.7 (1976) (Powell, J., concurring.) Justices Powell,

Blackmun, Brennan, Marshall, and Stewart expressed their support for a due

process based challenge. See, id. at 495 (Powell, J., concurring); Id

at 496-499 (Brennan, J., dissenting).

24

This egregious conduct on the part of government

agents generated new crimes by the defendant

merely for the sake of pressing criminal charges

against him when, as far as the record reveals, he

was peacefully minding his own affairs.

Fundamental fairness does not permit us to

countenance such actions by law enforcement

officials and prosecution for a crime so fomented

by them will be barred.

In United States v. Lard, the defendant was convicted of

conspiring to transfer and transferring a pipe bomb. Lard was

introduced to undercover federal agents by an informant who the

informant claimed were interested in buying guns from Lard.

Lard had absolutely no prior record. He did tell the agents that

he had a shotgun which he refused to sell. Lard then attempted

to sell the agents some shotgun shells and a small detonator, acts

which were not illegal. One of the agents, Anderson, instead

suggested that Lard sell him a "pipe bomb". Lard initially resisted

this idea, but Anderson repeatedly implored him, stating that he

needed something powerful to blow up a car. After numerous

requests, Lard relented, and agreed to make and sell the pipe

bomb. Again, Lard had no criminal record, no history of dealings

in unregistered firearms, did not suggest the sale of the pipe

bomb, and despite Anderson’s "repeated baiting”, was reluctant to

enter into the pipe bomb transaction.

The Court of Appeals for the Eighth Circuit found that

these actions constituted entrapment, and reversed Lard’s

conviction. In addition, the court stated that, entrapment aside,

"Agent Anderson’s overinvolvement in conceiving and contriving

the crimes here approached being ’so outrageous that due process

principles should bar the government from invoking judicial

processes to obtain a conviction.” Jd. at 1296. The government

officials were not trying to discover and punish ongoing crimes,

25

but rather to "[create] new crimes for the sake of bringing criminal

charges against Lard, who, before being induced, was lawfully and

peacefully minding his own affairs." Jd. Further, the court stated

that "[c]oncepts of fundamental fairness preclude us from putting

our imprimatur on law enforcement overreaching conduct

designed to instigate ’a criminal act by persons otherwise innocent

in order to lure them to its commission and to punish them.” Id.

at 1297 (quoting Russell, 411 U.S. at 428-29).

Similarly, in the recent Solorio decision, the Ninth Circuit

reversed a conviction due to the overzealous tactics of the

government. The government obtained the drug conviction of the

defendant Thomas by paying an informant on a contingency basis

for every successful conviction. Payment was _ expressly

conditioned on the success of the operation, the amount of drugs

involved, and the value of any assets seized in the operation, while

if an operation was unsuccessful Barruetta was paid only minimum

wage for his time spent. For his services in the Thomas case, he

was paid $2000, and in fact earned more that $50,000 overall as an

in his role as an informant. The Court of Appeals for the Ninth

Circuit stated that this type of contingent fee arrangement "creates

perverse incentives for confidential informants." Jd. at *6. This

is evident from Barruetta’s remarks just prior to the buy from

Thomas: "We'll see if this goes through, son of a bitch, I need

some cash. I practically don’t have tires left, son of a bitch."

Solorio, at *1.

In response to this incentive, Barruetta constructed the

entire crime. He initially approached the person who put him into

contact with Thomas, and expressed interest in obtaining

methamphetamine; Thomas never approached anyone. Although

Thomas at first refused to provide anyone with drugs, he

eventually relented. Although offered marijuana and cocaine, he

declined the drugs. He expected to make no money from this

deal, but was attempting to help his friend. When the drugs were

26

delivered to Thomas, he and the others involved were arrested.

The Ninth Circuit found this conduct to be "so outrageous

as to violate due process", refused to condone the conduct and

reversed the conviction, particularly because of their concern over

the enormous incentive which the contingent fee arrangement

provided. Jd. at *6.

Equally as illustrative is the instant case. The petitioner,

Ms. Tucker was not a known food stamp purchaser. Prior to this

incident, she was essentially a law-abiding citizen minding her own

business. When asked to purchase food stamps, she continually

refused. This is not a case of a closet criminal who just needed

the bait dangled in front of her; Ms. Tucker obviously was not

interested. The only thing that induced her to purchase food

stamps was her desire to help out her friend, Hancock, the

informant. Ms. Tucker was an ordinary person who was

“approached by a confidential informant working on a contingency

fee basis that was a friend . . . who used sympathetic ruses, . . .

about her health and her children." Appendix E.

These cases make eminently clear the extreme

circumstances under which the doctrine is invoked, and the need

for some type of redress against these actions.

In addition, it is important to note that even those courts

which have not found such egregious actions meriting the

invocation of the doctrine have refused to foreclose the possibility

that those instances may exist, and that the doctrine should be

available to address the resulting unfair convictions. The list of

cases stating this is so extensive that every such case is not

mentioned here. However, the Sixth Circuit listed over a dozen

such cases in its decision in Tucker, and many are listed in the first

part of this petition. 7

The First Circuit in Santana stated this principle best when

it said

Should the occasion and the necessity arise, we

27

continue to believe that the law will prove itself

adequate to the task of preventing the government

from going too far. In the war on crime, as in

conventional warfare, some tactics simply cannot

be tolerated by a civilized society.”

The decisions finding an outrageous conduct violation and

the courts who refuse to deny the existence of the doctrine,

illustrate and explain why the doctrine exists. The power our

society invests in law enforcement officials is enormous. Though

that power is not without certain checks, without the outrageous

conduct doctrine, these instances would slip through the cracks.

People who are lawfully and peacefully minding their own affairs

should not be exposed to unrelenting, persuasive investigatory

tactics designed to create crimes which these people had

absolutely no intent to commit prior to the injection of seedy,

unscrupulous informants who are being paid well to hand the

government convictions. Creating crimes which would not have

existed prior to the prodding by the government does nothing to

remove crime from the streets. It only serves to elicit latent

criminal tendencies from otherwise law-abiding citizens, who,

absent the invitation, the means, and some overwhelming

persuasion, would probably never set foot into the criminal arena.

Nothing is accomplished, and time, resources and efforts of law

enforcement agencies throughout the country are most certainly

better served by investigating ongoing crimes, committed with

criminals’ resources, which are the product of criminal minds.

Policy reasons aside, this doctrine legitimately derives its

power from the Due Process Clause of the Fifth Amendment.

The clause mandates fundamental fairness which cannot be had in

situations such as those mentioned above. Convictions under

indictments which were unconstitutionally procured cannot be

tolerated.

28 |

Although the Sixth Circuit opinion in Tucker gave three

reasons why this doctrine should not exist, none of these reasons

sufficiently justifies allowing the law enforcement authorities free

reign to manufacture crimes and then prosecute the individuals

who were baited and prodded and coerced into committing those

crimes. The first reason stated, that "government conduct which

induces a defendant to commit a crime, even if labelled

"outrageous," does not violate that defendant’s constitutional right

of due process", is incorrect. The Fifth Amendment’s promise of

fundamental fairness is violated by unfair investigations, unfair

indictments and unfair convictions.

The second concern, that "the district court lacked

authority to dismiss the indictment for governmental misconduct

where no violation of an independent constitutional right has been

shown", is also incorrect. As stated before, due process is

implicated in any prosecution in which the indictment was unfairly

procured. The Solorio court stated that "[a]t a minimum, the Due

Process Clause protects against the conviction of individuals on

the basis of evidence that has . . . a high risk of being false."

Solorio, 1994 WL 509047 at *6. The court found this to be the

case with indictments procured through the use of informants paid

contingency fees. In addition, the right to privacy is implicated by

overzealous investigatory techniques such as those used in Tucker.

Using friends and neighbors to induce people to commit crimes

certainly is an invasion of privacy worthy of constitutional

protection.

The third concern articulates precisely the reason why this

doctrine must be recognized. The Sixth Circuit’s last concern is

that the doctrine invades upon the province of the Executive

Branch. When the Executive Branch so overzealously forces the

commission of crimes, the Judicial Branch must not compound

that wrong entertaining these charges. It must perform its oversite

function implicit in the creation of the three separate branches of

t .

29

government.

However, most importantly, none of these three reasons

kept the majority of this Court in Hampton, nor every other

circuit court of appeal, from determining that such outrageous

violations of due process might one day present themselves which

would be sufficient to merit dismissing the indictments for lack of

fundamental fairness.

The Sixth Circuit is plainly in error in foreclosing a well-

established, extensively litigated doctrine which has been

specifically reserved by the Supreme Court. As such, this question

is an important one in need of review by this Court.

CONCLUSION

For the foregoing reasons, Petitioner prays that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Sixth Circuit.

Respectfully submitted this 23rd day of November, 1994.

Respectfully submitted,

OA NW ase

WituiaM D. Mass

Counsel of Record ia Peti

100 N. Main, Suite 3010

Memphis, Tennessee 38103

(901) 525-4357

APPENDIX A

la

No. 93-6028

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ON APPEAL from the

United States District

Brenda TUCKER and Barbara Court for the Western

McDonald, District of Tennessee

Defendants-Appellees.

Decided and Filed July 15, 1994.

Before: MARTIN, SUHRHEINRICH, and SILER, Circuit

Judges.

SUHRHEINRICH, Circuit Judge, delivered the opinion of the

court, in which SILER, Circuit Judge, joined. MARTIN, Circuit

Judge (pp. 1429-30), delivered a separate opinion concurring in

the result.

SUHRHEINRICH, Circuit Judge.

Defendants were indicted for purchasing, and aiding

and abetting the purchase of, food stamps in violation of 7

U.S.C. s 2024(b)(1). Defendants moved to dismiss the

Pe

2a

indictment, claiming that the government’s conduct in inducing

defendants to commit their crimes was so "outrageous" that it

violated their due process rights. The district court referred

the matter to a magistrate judge for evidentiary hearings,

findings and recommendations. The magistrate’s report

recommended dismissal, the district court accepted this

recommendation and the government, pursuant to 18 U.S.C. s

3731, appeals. Because we find no binding authority requiring

or even authorizing this court to conduct a purely objective

assessment of the government’s conduct in this case, we decline

to do so. Defendants’ assertion of a "due process” defense

based upon such an assessment is, in our view, nothing more

than a claim of entrapment and, accordingly, we REVERSE

and REMAND for trial.

I. Facts

Defendants’ indictment arose out of a "reverse sting,”

i.e., an operation in which "the police pose as sellers of

[contraband], set up deals with would-be buyers under carefully

controlled conditions, and arrest the purchasers following the

sham sale." Owen v. Wainwright, 806 F.2d 1519, 1520 (11th

Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95

L.Ed.2d 875 (1987). The operative in this case, Linda

Hancock, was hired by the United States Department of

Agriculture to help “catch ... a lot of people that had been

abusing the [food stamp] system." Hancock worked on a

"commission" of sorts, keeping half the money collected from

her sale of food stamps. She was not told whom she should

approach, just that she should find people willing to buy the

stamps below face value and secretly record the transactions.

In November of 1990, Hancock called defendant

Tucker, a friend of more than ten years. Claiming that she was

in dire financial need, Hancock told Tucker that she was going

3a

to have to sell her family’s food stamps in order to provide a

"proper Christmas” for her children. After first resisting,

Tucker finally purchased the stamps when Hancock later

appeared at her beauty salon dressed in a manner suggesting

her financial distress. When Hancock asked who else Tucker

thought might buy some stamps, Tucker sent Hancock to

McDonald, one of Tucker’s employees. McDonald also

purchased food stamps from Hancock after listening to her

tales of ill-health and financial need.

In accepting the magistrate judge’s Report and

Recommendation, the district court stated:

I don’t think we are at a point in our criminal

history where the government needs to lower

itself into targeting sympathetic ploys on

citizens that are not otherwise suspected of

engaging in criminal conduct ... [Food stamp

trafficking] is not such a terrible offense that

the government, in my view, should be

permitted to use agents under the totality of the

facts of this case ... [CJertainly there is no

reason why the government cannot use

undercover agents, cannot pay those undercover

agents, cannot have undercover agents deal with

friends, cannot use untrue ploys. All of those

things individually are certainly useful

techniques for investigation. But when they are

employed in totality with people who are not

otherwise suspected of engaging in crime, it

seems to me that the conduct, as the Magistrate

concluded, crosses [the constitutional] boundary.

(J.A. at 169-72).

4a

We review the district court’s dismissal de novo.’ See

United States v. Leja, 563 F.2d 244, 245-46 (6th Cir.1977), cert.

denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978).

Il. The "Due Process" Defense

Defendants argue that this court may, indeed must,

undertake an independent, objective assessment of the

government’s methods in this case and, if we find them to be

"outrageous," affirm the district court’s decision to dismiss.

Before engaging in the highly suspect process of labeling the

conduct of a co- equal branch of our government as either

"outrageous" or "not outrageous," we are compelled to

determine precisely upon what authority we would do so.

A. Entrapment

Any analysis of the so-called "due process" defense

must, in our view, begin with the law of entrapment. The

Supreme Court first recognized an entrapment defense in

Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413

(1932). In doing so, the Court resolved a deep split of

authority as to whether the focus of the defense was "objective"

(looking to the government’s conduct), or "subjective" (looking

1 Several of the magistrate judge’s findings of fact relating to the amount

of deception employed by the undercover operative in this case were hotly

disputed. The magistrate judge resolved these disputes in favor of the

defendants on the basis of the credibility of the witnesses. While the legal

sufficiency of the defendants’ defense is reviewed de novo, the factual

findings must be accepted unless found to be clearly erroneous. See United

States v. Hart, 963 F.2d 1278, 1284 (9th Cir.1992). Here, there is no basis to

reject the magistrate judge's findings. See United States v. Taylor, 956 F.2d

872, 576 (6th Cir.) (en banc) (lower court’s factual findings, if expressly

based upon credibility evaluations, are beyond appellate review), cert.

denied, --- U.S. —, 113 S.Ct. 404, 121 L.Ed. 2d 330 (1992).

Er BN ae.

Sa

to the defendant’s predisposition). The Court, siding squarely

with the subjective theory, held that a "defendant [who] seeks

acquittal by reason of entrapment ... cannot complain of an

appropriate and searching inquiry into his own conduct and

predisposition as bearing upon that issue." Jd. at 451, 53 S.Ct.

at 216.

The Court rejected an invitation to revitalize an

"objective" entrapment defense in Sherman v. United States, 356

U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), holding that

entrapment was the "line ... between the trap for the unwary

innocent and the trap for the unwary criminal." /d. at 372, 78

S.Ct. at 821 (emphasis added). Again, in United States v.

Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the

Court rejected the "objective" approach to entrapment, stating:

[Sorrells and Sherman ] establish that

entrapment is a relatively limited defense. It is

rooted, not in any authority of the Judicial

Branch to dismiss prosecutions for what it feels

to have been ’overzealous law enforcement,’ but

instead in the notion that Congress could not

have intended criminal punishment for a

defendant who has committed all the elements

of a proscribed offense but was induced to

commit them by the Government. Jd. at 435, 93

S.Ct. at 1644 (emphasis added).’

To this point, therefore, it was absolutely clear that a

defendant, whose predisposition to commit a particular crime

2 The dissenters in Russell (Justices Stewart, Brennan, Marshall and

Douglas) joined the dissenters in Sherman (Justices Frankfurter, Douglas,

Harlan and Brennan) and the concurring Justices in Sorrelis (Justices Roberts,

Brandeis and Stone) in support of the ill-fated "objective" defense.

6a

was proved beyond a reasonable doubt, could not defend

against prosecution on the basis that the government induced

him to commit that crime, no matter how strong the

inducement or "outrageous" the government’s conduct.

B. "Outrageous Conduct”

In Russell, the defendant argued that the defense of

entrapment should be founded on constitutional principles

rather than congressional intent. He argued that the

government’s involvement in creating his crime, i.e., the means

and degree of inducement, was so great "that a criminal

prosecution for the [crime] violates the fundamental principles

of due process,” his predisposition to commit the crime

notwithstanding. Russell, 411 U.S. at 430, 93 S.Ct. at 1642.

The defendant argued that, just as with the exclusionary rule

created in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58

L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961), dismissal was an appropriate

means of deterring future police misconduct.

The Court soundly rejected this argument, stating that

"the defense of entrapment ... was not intended to give the

federal judiciary a chancellor’s foot’ veto over law

enforcement practices of which it did not approve.” Russell,

411 US. at 435, 93 S.Ct. at 1644. Rather, the "execution of the

federal laws under our Constitution is confided primarily to the

Executive Branch of the Government, subject to applicable

constitutional and statutory limitations and to judicially

fashioned rules to enforce those limitations." Jd. Because the

defense of entrapment lacks a constitutional foundation, the

Court rejected the defendant’s analogy to Weeks and Mapp

on the ground that, unlike the Fourth Amendment violations

in those cases, "the Government’s conduct here violated no

independent constitutional right of the respondent.” Id. at 430,

Ta

93 S.Ct. at 1642.

The Court, however, went on to note the following:

While we may some day be presented with a

Situation in which the conduct of law

enforcement agents is so Outrageous that due

process principles would absolutely bar the

government from invoking judicial processes to

obtain a conviction, cf. Rochin v. California, 342

U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952), the

instant case is distinctly not of that breed...

The law enforcement conduct here stops far

short of violating that fundamental fairness,

shocking to the universal sense of justice,’

mandated by the Due Process Clause of the

Fifth Amendment. Russell, 411 US. at 431-32,

93 S.Ct. at 1643.

Since this dicta was uttered, Russell has been cited

more than two hundred times as authority for a defense based

solely on an objective assessment of the government’s conduct.

Thus, the Court’s dicta in Russell spawned the very defense

which a majority of Justices in that case sought to foreclose.

Recognizing the internal inconsistency of Russell,

then-Justice (now Chief Justice) Rehnquist, who had penned

the decision in Russell, soon sought to recant its "maybe

someday" dicta. In Hampton v. United States, 425 U.S. 484, 489,

96 S.Ct. 1646, 1649-50, 48 L.Ed2d 113 (1976) (plurality

opinion), Justice Rehnquist rejected the defendant’s

Russell-inspired, "due process" defense on the ground that

permitting such an objective assessment of the government’s

conduct, while ignoring the defendant’s predisposition, "would

run directly contrary to our statement in Russell ....". Justice

Rehnquist elaborated:

8a

The limitations of the Due Process Clause of

the Fifth Amendment come into play only when

the Government activity in question violates

some protected right of the Defendant.... If the

result of the governmental activity is to

"implant in the mind of an innocent person the

disposition to commit the alleged offense and

induce its commission..." Sorrells, supra 287

US. at 442 [53 S.Ct. at 212-13], the defendant

is protected by the defense of entrapment. If

the police engage in illegal activity in concert

with a defendant beyond the scope of their

duties the remedy lies, not in freeing the

equally culpable defendant, but in prosecuting

the police under the applicable provisions of

state or federal law. Jd. at 490, 96 S.Ct. at 1650

(emphasis added).

Thus, "[t]he remedy of the criminal defendant with respect of

the acts of Government agents," Justice Rehnquist concluded,

"lies solely in the defense of entrapment.” Jd. at 490, 96 S.Ct.

at 1650 (emphasis added).

Justice Rehnquist’s recantation of his Russell dicta,

however, failed to gain a majority in Hampton. Justices

Blackmun and Powell, who joined Justice Rehnquist in Russell,

wrote separately to say that, although the facts of Russell and

Hampton did not warrant dismissal under due process, they

were "unwilling to conclude that an analysis other than one

limited to predisposition would never be appropriate under due

process principles." Hampton, 425 U.S. at 493, 96 S.Ct. at

9a

1651-52 (Powell, J., concurring in the judgment).’

Justices Brennan, Stewart and Marshall, steadfastly

adhering to the "objective" theory of entrapment which had

failed to become law in Sorrells, Sherman and Russell,

dissented from Justice Rehnquist’s plurality opinion in

Hampton, in part, to state that courts should be able to dismiss

indictments "where the conduct of law enforcement authorities

is sufficiently offensive, even though the individuals entitled to

invoke such a defense might be predisposed." Hampton, 425

USS. at 497, 96 S.Ct. at 1654 (Brennan, J., dissenting).

Thus, in Hampton, five Justices, two in dicta and three

in dissent, left open the "objective" defense door which Justice

Rehnquist had unlocked in Russell. We note, however, that

just as Justice Rehnquist’s comments in Russell were dicta, so

too were his comments (and those of Justices Powell and

Blackmun) in Hampton.

C. Sixth Circuit Authority

This court first addressed a "due process" defense claim

in United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert.

denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978).

After reviewing the various opinions in Hampton, the court

"conceive[d] the issue to be whether the governmental activity

> Justice Powell did concede, however, that the Court, "in an appropriate

case," "ultimately might reach" Justice Rehnquist’s conclusion that there is "no

(constitutional] source for a doctrine limiting police involvement in crime."

Hampton, 425 U.S. at 494 n. 5, 96 S.Ct. at 1652 n. 5. Justice Powell, writing

for a majority of the Court in United States v. Payner, 447 U.S. 727, 100 S.Ct.

2439, 65 L.Ed.2d 468 (1980) (discussed infra ), seemed to abandon the

position he had taken in Hampton when he held that sanctions are justified

under the Due Process Clause only where the governmental misconduct

"violates some protected right of the defendant.” Id. at 737 n. 9, 100 S.Ct. at

2447 n. 9 (quoting Hampton, 425 U.S. at 490, 96 S.Ct. at 1650 (plurality

opinion) (Rehnquist, J.)).

10a

... So offends our concepts of fundamental fairness as to justify

the extraordinary employment of judicial power to curb it." Id.

at 246. The court then rejected the defendant’s "due process"

defense, reasoning that if the absence of predisposition is

merely a statutory and not a constitutional defense, "it is

difficult indeed to prohibit on constitutional grounds the

prosecution of the defendants ... [who] were clearly predisposed

to commit the acts." Id. at 247. The court also declined to

employ its "supervisory powers" to dismiss the indictment,

holding that to do so in the absence of a constitutional

violation would amount to nothing more than the "chancellor’s

foot" veto against which the Supreme Court had warned in

Russell. Id. (quoting Russell, 411 U.S. at 435, 93 S.Ct. at 1644).

Thus, in Leja, this court rejected the "due process"

defense on very broad grounds and further held that, in the

absence of a constitutional violation, the courts had no

authority to bar a defendant’s prosecution as a means of

deterring law enforcement misconduct. The panel, however,

refused to acknowledge the per se rule to which its analysis

seemed to lead. Instead, in language reminiscent of Justice

Rehnquist’s dicta in Russell, the Leja panel went on to observe:

Like Judge Friendly in United States v. Archer, [486 F.2d

670 (2d Cir.1973) ], and like Justice Powell in Hampton,‘ we

determine never to say "never" as long as the potential for

‘ The Leja panel’s reliance upon Justice Powell’s dicta in Hampton

proved unfounded when Justice Powell abandoned that position in United

States v. Payner, 447 U.S. 727, 737 n. 9, 100 S.Ct. 2439, 2447 n.9, 65 L.Ed.2d

468 (1980). See, supra at note 3. In addition, at least one

court has noted that Payner called into question the continued validity of

Archer, upon which the Leja panel also relied. See United States v. Santana,

6 F.3d 1, 9 (1st Cir.1993).

lla

abuse of individual rights exists in governmental action. Leja,

563 F.2d at 247 (emphasis added).

In more than two dozen cases since Leja, this circuit

| has rejected "on the facts" every attempt to invoke the so-called

"due process" defense. See, e.g., United States v. Barger, 931

| F.2d 359, 363-64 (6th Cir.1991); United States v. Qaoud, 777

F.2d 1105, 1110-11 (6th Cir.1985), cert. denied, 475 U.S. 1098,

106 S.Ct. 1499, 89 L.Ed.2d 899 (1986); United States v. Norton,

) 700 F.2d 1072, 1076 (6th Cir.), cert. denied, 461 U.S. 910, 103

S.Ct. 1885, 76 L.Ed.2d 814 (1983); United States v. Brown, 635

| F.2d 1207, 1213 (6th Cir.1980). In our view, therefore, there is

no authority in this circuit which holds that the government’s

conduct in inducing the commission of a crime, if "outrageous"

enough, can bar prosecution of an otherwise predisposed

defendant under the Due Process Clause of the Fifth

Amendment. Leja and the cases just cited do nothing more

than "assume" the existence of such a defense while "holding"

that it would not apply under the present facts. Because "one

panel of this court is not bound by dicta in a previously

published panel opinion," United States v. Burroughs, 5 F.3d

192, 194 (6th Cir.1993), we hold that the legal existence of

defendants’ asserted "due process" defense is an open question

in this circuit which we are free to address in the first instance.

D. Other Circuits’ Authority

Having concluded that there is no binding authority

recognizing defendants’ asserted "due process" defense, we look

to our sister circuits for persuasive authority. To date,

however, only one appellate court has employed Russell to bar

12a

a prosecution.” In United States v. Twigg, 588 F.2d 373 (3d

Cir.1978), a government agent suggested to the defendant that

they set up a drug manufacturing operation, located a site for

the plant, supplied the materials and the know-how as well as

the funds to "go into business." Jd. at 380-81. The court

reversed the defendant’s convictions for manufacturing the

drugs, stating that "[f]undamental fairness does not permit us

to countenance such actions by law enforcement officials and

prosecution for a crime so fomented by them will be barred."

Id. at 381.

We note, however, that this holding has been disavowed

by the Third Circuit on the ground that the Twigg court

improperly relied on United States v. West, 511 F.2d 1083 (3d

Cir.1975), which had been limited by Hampton and other, more

recent, Third Circuit opinions. See United States v. Beverly, 723

F.2d 11, 12 (3d Cir.1983) (citing United States v. Jannotti, 673

F.2d 578, 610 n. 17 (3d Cir.1982) (en banc), cert. denied, 457

US. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982)).

Accordingly, we do not consider Twigg persuasive on the issue

of whether or not a "due process" defense should be

recognized.

The other courts of appeals have, like our own circuit,

doggedly applied the Russell dicta; analyzing and rejecting

numerous fact patterns in search of governmental

’ Two other courts have come close. See United States v. Bogart,783

F.2d 1428, 1438 (9th Cir.) (remanding for factfinding regarding the

government’s conduct), vacated in part on other grounds sub nom. United

States v. Wingender, 790 F.2d 802 (9th Cir.1986); United States v. Lard, 734

F.2d 1290, 1296 (8th Cir.1984) (stating, as an alternative ground for reversing

conviction, that government conduct "approached" being sufficiently

Outrageous to sustain due process defense).

13a

"overreaching" which "shocks the conscience" or violates

"fundamental fairness.” In recent years, this defense

increasingly has been subjected to ridicule, see United States v.

Santana, 6 F.3d 1, 3-4 (1st Cir.1993) (defense is the "deathbed

child of objective entrapment, a doctrine long since discarded

in the federal courts"), and at least one circuit judge has

expressly advocated that it be abandoned. See United States

v. Miller, 891 F.2d 1265, 1272-73 (7th Cir.1989) (Easterbrook,

J., concurring).’

The lack of any sound doctrinal basis for a "due

process" defense has, in our view, led to unnecessary conflict in

the courts of appeals where, although the courts are

all-but-unanimous in their results, contradictory standards have

evolved. Compare, e.g., United States v. Chin, 934 F.2d 393, 398

(2d Cir. 1991) ("whether investigative conduct violates a

* The courts of appeals have not been completely docile regarding the

so-called "due process" defense, however. There have been two efforts to

restrict the defense, though neither has been consistently applied within its

own circuit and neither has been expressly adopted by any court outside its

own circuit. See United States v. Kelly, 707 F.2d 1460, 1476 & n.3 (D.C.Cir.)

(defense should be limited to physical or extreme Psychological abuse of

defendant), cert. denied, 464 U.S. 908, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983),

and United States v. Bogart, 783 F.2d 1428 (9th Cir.) (government conduct

must be more than inducement, government must have "created" or

"manufactured" the crime solely for the purpose of generating criminal

charges), vacated in part on other grounds sub nom. United States v.

Wingender, 790 F.2d 802 (9th Cir.1986).

” Judge Easterbrook’s analysis of the validity of the "due process"defense

concludes: 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... "I know it when I see it" is not a rule of any kind, let

alone a command of the Due Process Clause. Miller, 891 F.2d at 1272-74.

14a

defendant’s right to due process cannot depend on the degree

to which the governmental action was responsible for inducing

the defendant to break the law") (emphasis added) with United

States v. Gamble, 737 F.2d 853, 858 (10th Cir.1984) ("defendant

may not invoke the Due Process Clause ... unless the

government’s acts, no matter how outrageous, had a role in

inducing the defendant to become involved in the crime")

(emphasis added).

Moreover, the potential violation of separation of

powers inherent in this "defense," coupled with the

unavoidable subjectivity to which any purportedly objective

assessment of "outrageousness" must devolve, has nowhere

been as apparent as in the unseemly power struggle between

the court of appeals and the district court in United States v.

Simpson, 813 F.2d 1462 (9th Cir.1987), cert. denied, 484 U.S.

898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987). There, the Ninth

Circuit Court of Appeals reversed the district court’s dismissal

of the indictment, holding that the government’s conduct* "was

not so outrageous as to justify dismissal of the indictment on

due process grounds." Jd. at 1465. The court remanded for

further proceedings "consistent with" its opinion. Jd. at 1473.

The district court, on remand, promptly dismissed the

indictment again, this time as an exercise of its "supervisory

powers." The Ninth Circuit again reversed. United States v.

* In Simpson, the government used a false affidavit to get wiretaps,

"manipulated" a prostitute who was drug addict and a fugitive from Canadian

authorities into becoming an informant, continued using that informant even

after learning that she was sleeping with the defendant, and used that

informant even though the government knew she was continuing to use heroin

and engage in prostitution. Simpson, 813 F.2d at 1465.

15a

Simpson, 927 F.2d 1088, 1091 (9th Cir.1991). The court held

that, although the supervisory power may be invoked to deter

future illegal activity, such a justification was inapplicable

because there had been no violation of the defendant’s due

process rights and because none of the illegal activities of the

informant were done at the request of the government or in

furtherance of governmental aims. Jd. The court also held that,

even if the government had broken the law (or, presumably,

violated the defendant’s due process rights), dismissal under

the court’s supervisory power would be an unconstitutional

violation of separation of powers. Id. The court stated:

Dismissing an indictment with prejudice encroaches on

the prosecutor’s charging authority, substituting a judicial

wag-of-the-finger for the prosecutorial nod. Such an intrusion

will be permitted only in cases of flagrant prosecutorial

misconduct.... The conduct here was neither fairly attributable

to the prosecutor nor sufficiently flagrant to justify dismissal

with prejudice. Jd. (emphasis added). Thus, the Ninth Circuit’s

two opinions in Simpson show that, when defendants raise the

"due process" defense, it is the "wrong" which is illusory and the

“remedy” sought which is, in fact, unconstitutional.

E. Conclusion

In sum, there is no binding Supreme Court authority

recognizing a defense based solely upon an _ objective

assessment of the government’s conduct in inducing the

commission of crimes. Nonbinding dicta of the Court,

indicating that there may be such a defense, has been recanted

by its author based upon reasoning later adopted by a majority

of the Court in Payner, 447 U.S. at 737 n. 9, 100 S.Ct. at 2447

n. 9. Moreover, this court has recognized the availability of this

defense only in dicta because, in every case in which the issue

has been raised, the government’s conduct has been held not to

16a

have been “outrageous.” The only case squarely holding that

an objective assessment of the government’s conduct in a

particular case may bar prosecution without regard for the

defendant’s predisposition has been greatly criticized, often

distinguished and, recently, disavowed in its own circuit.

Il. Analysis

Based on the lack of binding precedent from either the

Supreme Court or the Sixth Circuit, we are of the view that

this panel is not required to recognize the “due process”

(PAGE 1427 BEGINS) defense. Moreover, there are three

strong reasons for concluding that such a defense simply does

not exist: (1) government conduct which induces a defendant

to commit a crime, even if labelled "outrageous," does not

violate that defendant’s constitutional right of due process; (2)

the district court lacked authority to dismiss the indictment for

governmental misconduct where no violation of an independent

constitutional right has been shown; and (3) continued

recognition of this "defense" stands as an invitation to violate

the constitutional separation of powers, intruding not only on

the province of the Executive Branch but the Legislative

Branch as well.

A. Inducement Does Not Violate Due Process

The logical inconsistency underlying the assertion of a

"due process" defense is apparent simply in restating the

defendants’ contention. They argue that it would be

"fundamentally unfair" to convict them of a crime, even

assuming that they were predisposed to commit that crime,

because of the outrageous conduct of the government in

inducing their actions. As noted above, however, the Supreme

Court has held that the basis for the entrapment defense lies

in congressional intent and, specifically, not in the Due Process

Clause of the Fifth Amendment. Russell, 411 U.S. at 430-31, 93

17a

S.Ct. at 1642. From this it must certainly follow that, if

Congress were to reject entrapment as a defense, even

defendants who were induced to commit a crime and who were

not predisposed could be convicted without violating due

process. If due process is not offended by convicting those who

are not predisposed, a priori it is not offended by convicting

those who are predisposed.

This is the inconsistency which Justice Rehnquist sought

to avoid when, in Hampton, he rejected the defendant’s "due

process" defense and held that claims of inducement,

outrageous or otherwise, must be analyzed under the law of

entrapment. Hampton, 425 U.S. at 490, 96 S.Ct. at 1650. It is

also the inconsistency which prompted this court to reject

outright the first "due process" defense presented to it. See

Leja, 563 F.2d at 247.

B. The District Court Has No Authority to Dismiss an

Indictment on These Grounds

In United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439,

65 L.Ed.2d 468 (1980), the district court set aside the

defendant’s conviction after ruling that evidence illegally seized

from a third party’s briefcase could not be admitted against the

defendant. /d. at 730, 100 S.Ct. at 2443. Acknowledging the

“standing” limitations on the Fourth Amendment exclusionary

rule, the district court nevertheless excluded the evidence on

the grounds of due process and its supervisory powers. Jd. at

730-31, 100 S.Ct. at 2443-44. This court affirmed on the ground

that exclusion was a proper exercise of the court’s supervisory

powers and did not reach the due process question. /d. at 731,

100 S.Ct. at 2444. The Supreme Court reversed.

The Court held that the requirement of "standing"

vis-a-vis the Fourth Amendment exclusionary rule represented

a balance of competing interests, i.e., the interest of society in

18a

convicting criminals and the interest of society in deterring

illegal searches. Jd. at 733, 100 S.Ct. at 2445. This balance, the

Court held, was not subject to case-by-case second-guessing by

the lower courts in the guise of exercising their "supervisory

power." Id. at 735-36, 100 S.Ct. at 2446-47.

The Court also held that the defendant could not

prevail under a "due process" challenge because, even if we

assume that the unlawful briefcase search was so outrageous as

to offend fundamental " ’cannons of decency and fairness,’ "

Rochin v. California, 342 U.S. 165, 169 [72 S.Ct. 205, 208, 96

L.Ed. 183] (1952), quoting Malinski v. New York, 324 U.S. 401,

417 [65 S.Ct. 781, 789, 89 L.Ed. 1029] (1945) (opinion of

Frankfurter, J.), 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 US.,

at 490 [96 S.Ct., at 1650] (plurality opinion). Id. at 737 n. 9, 100

S.Ct. at 2447 n. 9. This clear statement rejecting any "objective"

assessment of the government’s conduct, we believe, lays to rest

whatever modicum of Russell ’s dicta may have survived

Hampton.

As discussed, defendants in the present case have not

demonstrated a violation of their due process rights.

Moreover, the Supreme Court, by repeated majority decision,

has held that the balance between the desire to curb

government inducement and the need to convict criminals is

drawn at predisposition, not "“outrageousness." The district

court’s dismissal in this case flaunts that balance.

C. "Due Process" Defense Violates Separation of Powers

It is not difficult to label as "outrageous" any conduct of

the Executive Branch that "creates" or induces more crime than

that with which society must already contend. That is not the

19a

issue. The issue has always been: What to do about this

conduct and which branch of the government should do it?

Clearly, the Executive Branch is primarily responsible for, and

answerable to the electorate for, its own conduct. In addition,

the Executive Branch is constrained by "applicable

constitutional and statutory limitations and [by] judicially

fashioned rules to enforce those limitations." Russell, 411 U.S.

at 435, 93 S.Ct. at 1644.

With regard to acts of inducement, the Legislative

Branch has implicitly curbed the Executive Branch by

intending, as an implied part of each criminal statute, that no

conviction may be had against one who was induced by the

government to commit a crime unless the government proves,

beyond a reasonable doubt, that the defendant was predisposed

to commit that crime. Jacobson v. United States, --- U.S. ----,

---, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). Thus, a

defendant’s subjective predisposition marks the point at which

society’s interest in preventing governmental overreaching is

outweighed by society’s interest in punishing those who commit

crimes, not the objective character of the government’s conduct.

This line, established by Congress and articulated by the

Supreme Court beginning in Sorrells, is not subject to

circumvention on a case-by-case basis. The mere invocation of

the phrase "due process" does not give the courts license to

conduct its own "oversight" of police practices. Where no law

has been broken and none of the defendants’ constitutional

rights have been violated, the court’s focus must remain where

Congress has directed it, i.e, on the defendants’ subjective

predisposition.

Finally, because entrapment and predisposition are

ordinarily questions for the jury, Mathews v. United States, 485

US. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54 (1988), the line

20a

drawn by Congress and articulated by the

Supreme Court ensures that the jury, as the traditional

"defense against arbitrary law enforcement," Duncan v.

Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d

491 (1968), operates as the ultimate check on abuses of

executive power.

For the reasons just discussed, therefore, we hold that

a defendant whose defense sounds in inducement is, by

congressional intent and Supreme Court precedent, limited to

the defense of entrapment and its key element of

predisposition. Defendants may not circumvent this restriction

by couching their defense in terms of "due process" or

"supervisory powers." Thus, we reject as a matter of law the

theory upon which defendants based their motion to dismiss

without regard to the particular facts of their case and without

reaching the issue of whether or not those facts can properly be

characterized as "outrageous."

IV. Entrapment as a Matter of Law

To ensure that nothing we have said above is taken as

having expressed an opinion as to defendants’ claim of

entrapment, we address that issue now. The defendants’

motions to dismiss raise both the "due process" defense and

entrapment as a matter of law. To warrant dismissal before

trial on the ground that the defendant was entrapped as a

matter of law, this court has held that "the undisputed

evidence must demonstrate a ’patently clear’ absence of

predisposition." United States v. Harris, 9 F.3d 493, 498 (6th

Cir.1993) (quoting Barger, 931 F.2d at 366).

In the present case, although it was not necessary to

reach the issue because of the disposition of the "due process"

defense, the magistrate judge stated that because of the

defendants’ "willingness to participate in this scheme, it is not

2la

likely that the defendants would be able to mount a successful

entrapment defense." (J.A. at 59.) The district court further

noted that "but for the finding of the Magistrate [regarding the

"due process" defense] and the concurrence of this Court in

that finding, it is doubtful that any defense of entrapment

would prevent you from being found guilty on those offenses."

(J.A. at 172.) The district court concluded, however, that

entrapment “is something that a jury would have had to

determine." Jd. (emphasis added).

We believe the district court and the magistrate judge

were correct to conclude that the question of entrapment in

this case should be left to the jury. The evidence in the record

before us, taken in the light most favorable to the government,

is neither "undisputed" nor "patently clear" regarding whether

these defendants were predisposed to commit their crimes.

Therefore, the question must be resolved by the jury.

V.

The district court’s dismissal of the defendants’

indictment is, for the reasons discussed above, REVERSED

and this case is REMANDED for trial.

BOYCE F. MARTIN, JR., Circuit Judge, concurring in

the result.

While I agree in principle with much of the majority’s

analysis, I believe that this panel is bound by prior Sixth Circuit

decisions recognizing the existence of an “outrageous

government conduct" defense, under the Due Process Clause

of the Fifth Amendment, to criminal prosecution. I concur in

the result, nevertheless, because the government’s conduct in

the present case was not outrageous.

As the majority correctly observes, this Circuit has

decided more than two dozen cases involving an "outrageous

22a

government conduct" defense, rejecting it in each instance on

the facts. In United States v. Barger, 931 F.2d 359, 363-64 (6th

Cir.1991), we reiterated four factors that must be weighed in

determining whether governmental conduct is outrageous:

(1) the need for the police conduct as shown by the

type of criminal activity involved, (2) the impetus for the

scheme or whether the criminal enterprise preexisted the police

involvement, (3) the control the government exerted over the

criminal enterprise, and (4) the impact of the police activity on

the commission of the crime.

In Barger and United States v. Payne, 962 F.2d 1228,

1231-33 (6th Cir.), cert. denied, --- US. ----, 113 S.Ct. 306, 121

L.Ed.2d 229, and cert. denied, --- U.S. ----, 113 S.Ct. 811, 121

L.Ed.2d 684 (1992), our most recent published opinions

involving this defense, we engaged in a lengthy analysis of each

factor under the circumstances of the particular case. This

analysis was undertaken, in both instances, in a separate section

of the opinion devoted solely to the briefed and argued issue

of outrageous government conduct, and not simply in a passing

statement or cursory, superfluous commentary. Accordingly, I

cannot agree with the maijority’s characterization of this

repeated treatment as dicta.” It seems clear to me that this

*Black’s Law Dictionary defines dictum as follows:

The word is generally used as an abbreviated form of

obiter dictum, "a remark by the way;" that is, an

observation or remark made by a judge in pronouncing an

opinion upon a cause, concerning some rule, principle, or

application of law, or the solution of a question suggested

by the case at bar, but not necessarily involved in the case

or essential to its determination; any statement of the law

enunciated by the court merely by way of illustration,

argument, analogy, or suggestion. Statements and

comments in an opinion concerning some rule of law or

legal proposition not necessarily involved nor essential to

aa arttnhkd wt) 108 7S Rachel

1S hie wal, an a an ahi eh

23a

Circuit has recognized outrageous government conduct as a

valid due process defense, and, as the majority concedes, the

Supreme Court has not clearly held otherwise. My

disagreement with the majority opinion on this point

notwithstanding, I concur in the remand for trial on the

entrapment issue because I believe that the government’s

conduct in the present case was not outrageous.

determination of the case in hand are obiter dicta, and lack

the force of an adjudication. Dicta are opinions of a judge

which do not embody the resolution or determination of

the court, and made without argument, or full

consideration of the point, are not the professed deliberate

determinations of the judge himself. Black’s Law Dictionary

409 (Sth ed.1979) (emphasis added) (internal citation

omitted).

APPENDIX B

1b

No. 93-6028

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ORDER

BRENDA TUCKER; BARBARA MCDONALD,

Defendants-Appellees.

(Filed August 26, 1994)

BEFORE: MARTIN, SUHRENREICH, and SILER,

Circuit Judges.

The court having received a petition for rehearing

en banc, and the petition having been circulated not only

to the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing had been referred to the original

hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submission

and decision of the case. Accordingly, the petition is

2b

denied.

ENTERED BY ORDER OF THE

COURT

Leonard Green, Clerk

APPENDIX C

lc

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. No. 92-20259-TU-BRO

BRENDA TUCKER, AND

BARBARA McDONALD,

Defendants.

REPORT

(Filed April 6, 1993)

The defendants in this case are charged with

acquiring food stamps in a manner not authorized by the

Food Stamps Act. Both Ms. Tucker and Ms. McDonald

ar charged with receiving $400 in food stamps in exchange

for $200 in cash on or about November 16, 1990. Ms.

McDonald is charged with another defendant, Jean Chism,

with receiving $200 in food stamps in exchange for $100 in

cash, also on November 16, 1990. Ms. McDonald is

charged with another transaction on the same day

involving the receipt of 5100 in food stamps for $40 in

cash. She is charged with receiving $50 in food stamps for

$25 in cash on December 7, 1990. Finally, the defendant

2c

Brenda Tucker is charged with receiving $130 in food

stamps in exchange for a $60 personal check on December

7, 1990.

Both Defendants have filed motions to dismiss,

claiming that the government engaged in such outrageous

conduct as to deny them due process of law.

Alternatively, they maintain that they were entrapped as

a matter of law. I held an evidentiary hearing on these

motions on January 27, 1993. The matter was held in

abeyance for counsel to undertake to agree on a transcript

of certain taped conversations between the defendants and

a government agent. No such transcript was produced,

and both sides have announced that they do not wish to

file such a transcript. On the defendants’ motions, I

conducted a supplemental hearing on March 30, 1993. A

transcript of the January 27th hearing has been prepared,

and a transcript of the March 30th hearing has been

ordered. From the hearings, I find the following facts.

Linda Hancock was hired by Clifford White, an

agent of the United States Department of Agriculture, as

an undercover operative to sell food stamps. Ms. Hancock

had previously worked for the Shelby County Criminal

Justice Center and was put in contact with Mr. White by

a police officer relative of her. White furnished Hancock

food stamps issued by the Department of Agriculture and

instructed Ms. Hancock to sell them. Ms. Hancock was to

be paid half the amount she sold the stamps for. If she

sold stamps for $200, she was to receive $100. She was to

be paid for her mileage incurred in trying to sell stamps

5s TRG TS A ERED ATS ESOS EE

3c

even if she did not sell any. Ms. Hancock was to find the

buyers of the food stamps on her own and record

conversations between the buyers and herself. She was

given no instructions as to how to find buyers for the

Stamps. Ms. Hancock did testify that she was told by Mr.

White not to force individuals to buy food stamps. (Tr.

63-64). Mr. White did not testify.

The defendant Brenda Tucker owned and operated

a beauty salon in Memphis. The defendant Barbara

McDonald was an employee of hers. Linda Hancock and

Brenda Tucker were personal friends. They were next

door neighbors from around 1982 until the late 80’s. After

that, they maintained contact with one another and

remained friends. Ms. Hancock had some health,

domestic, and employment problems that she shared with

Ms. Tucker. In November of 1990, Ms. Hancock

contacted Ms. Tucker at Tucker’s beauty salon and told

Tucker that she, Hancock, was in such dire financial need

that her children would not have a proper Christmas.

When she came to Ms. Tucker’s shop, Ms. Hancock was

dressed in a manner that indicated she was in serious

financial need. Using this ruse, she persuaded Ms. Tucker

to buy food stamps that had been furnished to her by Mr.

White. These are the transactions that Ms. Tucker is

charged with in this case.

Most of the facts are not in dispute. However,

there is a dispute as to whether Ms. Hancock played on

Ms. Tucker’s sympathy, as stated above, to get Tucker to

buy the food stamps. Hancock said that she presented

4c

herself in a normal manner and did not represent to Ms.

Tucker that she was in financial need. I believe Ms.

Tucker’s version. This is in part based on the demeanor

of the witnesses at trial, including the demeanor of Ms.

Hancock. Further, at the supplemental hearing, Renee

Sumler, who has pled guilty to purchasing food stamps,

testified credibly that, when she was approached by Ms.

Hancock, Ms. Hancock was dressed in a manner that

made it appear as though she was in financial straits.

Ms. Tucker purchased the food stamps from Ms.

Hancock and put Hancock in touch with the defendant,

Barbara McDonald. Ms. Hancock made representations

to Ms. McDonald that she, Hancock, was sick and that she

and her family had some food stamps she was going to

have to sell in order to provide for her children’s

Christmas. I believe Ms. McDonald’s testimony in that

regard. Ms. McDonald likewise bought food stamps from

Ms. Hancock.

As the Court noted in United States v. Barger, 931

F.2d 359 (6th Cir. 1991),

[t]he Sixth Circuit has articulated four

factors for determining if governmental

conduct is outrageous: (1) The need for

police conduct as shown by the type of

criminal activity involved, (2) the impetus

for the scheme or whether the criminal

enterprise pre-existed the police

involvement, (3) the control the government

exerted over the criminal enterprise, and (4)

Sc

the impact of the police activity on the

commission of the crime. United States v.

Robinson, 763 F.2d 778, 785 (6th Cir. 1985);

Norton [United States vs. Norton, 700 F.2d

1075 (6th Cir.), cert. den. 461 U.S. 910.

(1983)], 700 F.2d at 1075; Brown [United

States v. Brown, 635 F.2d 1207 (6th Cir.

1980)}, 635 F.2d at 1212-13. Since these are

factors for consideration, not mandatory

prongs in a test, every one need not be

shown.

931 F.2d at 363. I will attempt to analyze the facts of this

case in relation to this test.

The first factor the Court must consider is the need

for the government conduct in light of the type of criminal

activity involved. The record is totally devoid of any

evidence establishing a need for the government to send

Ms. Hancock to sell food stamps to her friends and

acquaintances and thus create crimes. There is no

evidence, or indication, that Ms. Tucker or Ms. McDonald

ever bought any food stamps or engaged in any illegal

activity remotely similar to that.

Ms. Hancock testified that she thought Ms. Tucker

would be a good subject because Ms. Tucker had had a

shoplifting conviction several years before. She also said

that she thought that Ms. Tucker had possessed some

stolen coats in her house at one time. Ms. Tucker’s

shoplifting conviction was some sixteen years before these

offenses. She testified credibly at the hearing that she ran

6c

a legitimate merchandising operation at one time in which

she sold coats. In any event, there is no evidence that Ms.

Hancock or any government agent had any information

concerning a propensity on the part of Ms. Tucker or Ms.

McDonald to purchase food stamps or that the defendants

had engaged in such activity in the past. Counsel for the

United States stated in her memorandum that, "the

investigative operative [Linda Hancock] had knowledge

that the defendant had purchased food stamps in the past."

The evidence does not support that statement.

The second factor to consider is the impetus for the

scheme or whether the criminal enterprise pre-existed the

police involvement." The impetus for the scheme appears

simply to have been a desire by the government to lure

anyone into committing the crime of buying food stamps.

Neither Ms. Tucker nor Ms. McDonald were engaged in

any criminal enterprise prior to being approached by

Linda Hancock.

The third factor the court must consider is the

control the government exerted over the defendants’

purchase of the food stamps. The government exercised

compete control over this crime. Ms. Hancock picked Ms.

Tucker out because Ms. Tucker was a personal friend. Ms.

McDonald was drawn into the scheme because of her

relationship with Ms. Tucker. There is no indication that

either Ms. Tucker or Ms. McDonald were even

contemplating the purchase of food stamps prior to Ms.

Hancock’s arrival. Ms. Hancock came, with her tales of

woe, and induced both women to buy the stamps. Ms.

Tc

Hancock delivered them and received a cut of the

proceeds for inducing her friend and neighbor and her

friend’s employee to commit crimes.

The fourth factor--impact of the police activity on

the commission of the crime--is intricately related to the

third factor. It was Ms. Hancock’s activity on behalf of

the Department of Agriculture that brought about the

commission of the crime of purchasing food stamps.

There is no indication that the crimes would have been

committed but for Ms. Hancock’s activities.

Because of their willingness to participate in this

scheme, it is not likely that the defendants would be able

to mount a successful entrapment defense. See, United

States vs. Kussmaul, F.2d _, 1993 WL 38100 (6th

Cir. Docket No. 92-3314, decided Feb. 18, 1993). There

are cases, however, in which the government conduct is so

opprobrious that they should not be permitted to proceed

without regard to the question of entrapment. That is

apparently the reason why courts have, from time to time,

permitted an outrageous conduct/due process defense

even though a defendant’s conduct would preclude an

entrapment defense. See, Gail M. Greaney, Note,

Crossing the Constitutional Line: Due Process and the

Law Enforcement Justification, 67 Notre Dame L. Rev.

745 (1992).

I believe that this case is one that should be

dismissed without regard to the defendants’ ability to

mount an entrapment defense. We are not here dealing

with an effort by a government agent to trap someone he

8c

suspected of committing a crime. What we have instead

is a government agent hiring a person, on a percentage

contract, to go out and induce anyone she chose, including

personal friends, to violated the law. I believe this

conduct goes far beyond the bounds of propriety and

should not be countenanced.

I, therefore, recommend that the defendants’

motions to dismiss be granted.

This the 6th day of April, 1993.

/s/ Aaron Brown, Jr.

AARON BROWN, JR.

MAGISTRATE

JUDGE

NOTICE

ANY OBJECTIONS OR EXCEPTIONS TO THIS

REPORT MUST BE FILED WITHIN TEN DAYS

FROM THE DATE OF THE REPORT. FAILURE TO

FILE THEM WITHIN TEN DAYS MAY CONSTITUTE

A WAIVER OF OBJECTIONS, EXCEPTIONS AND

FURTHER APPEAL.

[illegible]

/s/ M, Thomas

DEPUTY

APPENDIX D

1d

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS. No. 92-20259-TU

BRENDA TUCKER, AND

BARBARA McDONALD,

Defendants.

JUDGMENT

(Filed June 24, 1993, 3:24 p.m.)

Decision by Court. This action came for

consideration before the Court. The issues have been duly

considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that this

action is dismissed as to defendants Brenda Tucker and

Barbara McDonald in accordance with the Order On

Exception to Magistrate Judge’s Report On Motions To

Dismiss Indictment docketed on June 3, 1993.

APPROVED

/s/ Jerome Turner [illegible]

JEROME TURNER BY: /s/ M.

Thomas

2d

UNITED STATES DISTRICT JUDGE

DEPUTY CLERK

6-24-93 ROBERT DITROLIO

DATE CLERK

/s/ Earline Grayer

APPENDIX E

le

TRANSCRIPT EXCERPT

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS. No. 92-20259-TU

BRENDA TUCKER, AND

BARBARA McDONALD,

Defendants.

Before the Honorable Jerome Turner

For the plaintiff: Ms. Vivian Donelson

For the defendant Tucker: Mr. William D. Massey

For the defendant McDonald: Mr. Robert C. Brooks

believe the case agent’s testimony would offer much on

the really pertinent facts. The credibility differences

turned in large part on the testimony of the tow

defendants and the confidential informant. And without

second guessing the magistrate, it is pretty obvious that he

didn’t accept many of the conclusions and some of the

testimony offered by the case agent.

2e

I have aiso concluded that non, no one of the facts

that were hotly contested, and some of which were not

contested, when taken singularly, is sufficient to hold that

the conduct of the case agent -- that particular piece of

conduct -- shocking to the universal sense of justice that

seems to be a standard measure of whether or not a

motion of this type should be granted. But given the facts

as they were found by the Magistrate Judge who held the

hearings in this case, when taken in their totality and

measured by the Barter (sic) standard, which both of you

have argued, or all three of you have argued to the Court

in some detail, the totality of those facts reflect a shocking

invasion, in my view, by a hired confidential informant

who was working for the government apparently on a

contingency fee basis, as determined by the Magistrate,

who elected by reason of the freedom given to her by her

case agent to delve into the private lives of ordinary

people who were not otherwise suspected of any wrong

doing. And while I recognize that the police and

investigative agencies have to have great leeway to

investigate crime and to go undercover, I do not think that

the kind of investigatory conduct that took place in this

case is acceptable conduct under the due process clause.

The confidential agent went to a neighbors -- a

former neighbor and friend. She used, given the findings

of the Magistrate, sympathetic reasons of ill health and

deprived children. And she alone initiated the opportunity

for this crime to occur and initiated it through ruses and

with those friends, who I point out again with some

3e

emphasis, were people that were not suspected by the

government of having been involved in criminal trafficking

for food stamps.

In the Barter (sic) case much more serious

ramifications of criminal conduct were expected by the

government with good cause. And it was reasonable to

believe that those people who were being interacted with

undercover were dangerous and might respond in injurious

and even murderous ways. In this case, given the record

that was presented to the Magistrate and as he found

those facts to be, there is simply no evidence that these

people were suspected of having been involved in any

trafficking. They were just ordinary people who were

approached by a confidential informant working on a

contingency fee basis that was a friend of --in Mrs.

Tucker’s case was a friend and who used sympathetic

ruses, as I said, about her health and her children.

I don’t think we are at a point in our criminal

history where the government needs to lower itself into

targeting sympathetic ploys on citizens that are not

otherwise suspected of engaging in criminal conduct,

particularly when some of the conduct that the Magistrate

found to be true was used in sympathetic ploys. It is true

that drug trafficking -- excuse me -- food stamp trafficking

is a serious offense. But it is nothing like the offense and

the possibility of injury that was involved in Barter (sic).

It is not such a terrible offense that the government, in my

view, should be permitted to use agents under the totality

of the facts of this case. And I emphasis (sic) that too. It

4e

is the totality of the facts in this case that have convinced

me that the conduct has gone beyond the due process

limitations. It is not any one of the facts, as I have said.

And certainly there is no reason why the government

cannot use undercover agents, cannot pay those

undercover agents, cannot have undercover agents deal

with friends, cannot use untrue ploys. All of those things

individually are certainly useful techniques for

investigation. But when they are employed in totality with

people who are not otherwise suspected of engaging in

crime, it seems to me that the conduct, as the Magistrate

concluded, crosses that boundary.

I will add that the facts in the case show that both

of you violated the law without much question, insofar as

I have gained the facts from the transcript presented to

the Magistrate. And but for the finding of the Magistrate

and the concurrence of this Court in that finding, it is

doubtful that any defense of entrapment would prevent

you from being found guilty on those offenses. That is

something that a jury would have had to determine. But

the government’s conduct does not justify what you did.

It merely gives you some protection in this one single

instant (sic). And It may be that the government doesn’t

agree with that and will take it to the Sixth Circuit and see

whether that stands or not.

In short, I am going to grant the motion to dismiss.

MR. BROOKS: Thank you, Your Honor.

MR. MASSEY: Thank you, Your Honor.

THE COURT: Any questions?

Se

MS. DONELSON: I assume the Court is going to

enter a written order.?

THE COURT: I will enter a written order. I do

not intend to write an opinion, simply a matter of time.

You can have these remarks written up as the Court’s. ..

APPENDIX F

if

WESTLAW: CTA

1994 WL 509047

1994 WL 509047 (9th Cir.(Cal.)), 63 USLW 2190

UNITED STATES of America,

Plaintiff-Appellee,

v.

Jose Teofilo SOLORIO,

Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Bourne Bobby THOMAS,

Defendant-Appellant.

Nos. 93-50507, 93-50508.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 2, 1994.

Decided Sept. 20, 1994.

Defendants were convicted of conspiracy to sell

methamphetamine, in the United States District Court for

the Southern District of California, Irma E. Gonzalez, J.

Defendants appealed. The Court of Appeals, D.W.

Nelson, J., held that: (1) conviction of one defendant was

required to be reversed, as government had used

outrageous conduct in setting up drug purchase; (2)

evidence was sufficient to convict another defendant who

2f

lacked standing to raise outrageous conduct point; and (3)

prosecutorial misconduct did not require reversal of

conviction of second defendant.

Reversed in part, affirmed in part.

USS. v. Solorio

(1)

110 CRIMINAL LAW

110XXIV Review

110XXIV(L) Scope of Review in General

110k1139 k. Additional proofs and trial de novo.

C.A.9 (Cal.), 1994.

Court of Appeals reviews de novo district court’s refusal

to dismiss indictment on basis of outrageous government

conduct.

USS. v. Solorio

[2]

110 CRIMINAL LAW

11011 Defenses in General

110k36.5 Official Action, Inaction, Representation,

Misconduct, or Bad

Faith

110k36.6 k. In general.

C.A.9 (Cal.),1994.

Member of conspiracy, whose sole role was to transport

controlled substance to point where sale would take place,

_ lacked standing to claim that government’s conduct in

bringing about sale was outrageous.

3f

US. v. Solorio

[3]

110 CRIMINAL LAW

11011 Defenses in General

110k36.5 Official Action, Inaction, Representation,

Misconduct, or Bad

Faith

110k36.6 k. In general.

C.A.9 (Cal.),1994.

Allegation of "outrageous government conduct" differs

from entrapment defense in that (1) technically,

outrageous conduct claim is not defense, and if successful

results in dismissal of indictment, and (2) if government’s

conduct is found to be outrageous, defendant’s

predisposition to commit crime is irrelevant.

See publication Words and Phrases for other judicial

constructions and definitions.

US. v. Solorio

[4]

110 CRIMINAL LAW

11011 Defenses in General

110k36.5 Official Action, Inaction, Representation,

Misconduct, or Bad

Faith

110k36.6 k. In general.

C.A.9 (Cal.),1994.

Government engaged in outrageous conduct, requiring

4f

reversal of convictions for drug selling; government had

recruited childhood friend of one member of drug

conspiracy to ask for drugs, promising friend compensation

based upon number of convictions and amount of drugs

obtained, rather than upon information provided, and had

then provided assistance in development of "sting"

operation. U.S.C.A. Const.Amend. 14.

U.S. v. Solorio

[5]

91 CONSPIRACY

9111 Criminal Responsibility

9101(B) Prosecution

91k44 Evidence

91k47 Weight and Sufficiency

91k47(3) Particular Conspiracies

91k47(12) k. Narcotics and dangerous drugs.

C.A.9 (Cal.),1994.

Evidence supported conviction of defendant for conspiracy

to participate in drug transaction, as driver of truck which

had been used to transport methamphetamine to point of

sale, even though he was not observed exiting vehicle in

which drugs were found; at time of his arrest at nearby

drug store defendant smelled of methamphetamine and

was carrying keys to truck.

US. v. Solorio

(6)

110 CRIMINAL LAW

110XXIV Review

Sf

110XXIV(Q) Harmless and Reversible Error

110k1171 Arguments and Conduct of Counsel

110k1171.8 Presentation of Evidence

110k1171.8(1) k. In general.

C.A.9 (Cal.),1994.

Defendant drug sale conspirator was not entitled to

reversal of conviction, even though he claimed that

prosecutor had engaged in misconduct by misrepresenting

evidence, instructed jury on legal theory on which district

court had refused to instruct, asked leading questions to

most of government witnesses, misrepresented postarrest

statement and impermissibly referred to postarrest silence

in closing argument, and repeatedly asked defense

witnesses argumentative and prejudicial questions; it was

more probable than not that misconduct had not

materially affected verdict.

Thor O. Emblem, Escondido, CA, for defendant-appellant

Bourne Bobby Thomas.

Russell S. Babcock, San Diego, CA, for

defendant-appellant Jose Teofilo Solorio.

Sherri L. Walker, Asst. U.S. Atty., San Diego, CA, for

plaintiff-appellee U.S.

Appeal from the United States District Court for the

Southern District of California.

Before: D.W. NELSON and NOONAN, Circuit Judges,

and KING, [FN*] District Judge.

wr vite S VEY west es Ww Tite «© PP eee? 68S? ee TY

6f

D.W. NELSON, Circuit Judge:

OVERVIEW

*1 Defendants-Appellants Jose Teofilo Solorio and

Bourne Bobby Thomas were convicted of conspiring to

sell methamphetamine and were sentenced to 121 months

in prison. Their appeals were consolidated. Both Thomas

and Solorio maintain that the government’s conduct in this

case was SO outrageous as to violate due process. We

agree. Accordingly, we reverse Thomas’s conviction.

Solorio, however, lacks standing to raise the outrageous

government conduct claim and his other claims lack merit.

Therefore, we affirm Solorio’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Cristobal Crosthwaite-Villa’s car had been seized by

immigration officials as he was trying to cross the Mexican

border illegally. Shortly thereafter, while Crosthwaite was

in Tijuana trying to get his car back, he ran into his

childhood friend, Albert Barruetta, a Mexican national

living in Tijuana. Unbeknownst to him, Barruetta had

become a professional informer for American DEA

agents. Barruetta told Crosthwaite that for $1,000 he

could get the seized car back and that he also could get

him, illegally, a permit to live in the U.S. Crosthwaite

accepted the offer and gave Barruetta $400 as a down

- payment.

During the following weeks, Crosthwaite repeatedly

contacted Barruetta to talk about the car and his

immigration problem. In the course of these

conversations, Barruetta learned that Crosthwaite was a

Tf

drug user. At trial, Barruetta testified that he could not

recall discussing whether Crosthwaite had ever been

involved in drug dealing or whether he would be willing to

do so in the future. On several occasions, Barruetta

illegally crossed the border to the United States in order

to purchase rock cocaine to smoke with Crosthwaite.

On November 5, 1992, 3arruetta met with DEA Agent

Bruce Goldberg and told him that he knew an individual

who was a major drug dealer and who could arrange for

the purchase of methamphetamine. Without verifying the

accuracy of the information, Agent Goldberg formally

enlisted Barruetta as a confidential informant and directed

him to pursue his lead. As in the past, Barrmetta’s

financial agreement with the government was on a

contingency basis. Under the agreement, the amount of

money Barruetta would be paid depended on whether the

operation resulted in conviction, on the amount of drugs

involved, and on the value of the assets seized. If,

however, the operation was “unsuccessful,” Barruetta

would be paid only the minimum wage for his services.

Barruetta eventually was paid $2,000 for his contribution

in this case, and thus far has earned more than $50,000 for

his services as an informant. Just before the drug

transaction occurred, Barruetta told Gilbert Hinojosa, one

of the DEA Agents involved in this deal: "We'll see if this

goes through, son of a bitch, I need some cash. I |

practically don’t have tires left, son of a bitch." [2 AM

R.T. at 326].

When Crosthwaite agreed to obtain methamphetamine

eee

8f

for Barruetta, he contacted Bobby Thomas for help.

Although Crosthwaite did not consider Thomas to be a

drug dealer, he knew that Thomas was a drug user and

that in the past he occasionally had sold Crosthwaite $20

dosages of methamphetamine. Crosthwaite asked Thomas

to help him find two or three’ pounds of

methamphetamine. Barruetta met with Thomas on

several occasions. As an incentive to participate in the

drug deal, Barruetta offered Thomas some marijuana and

cocaine, which Thomas did not accept. After some

reluctance, Thomas agreed to participate in the drug sale.

Thomas was not expecting to make any money from this

transaction, but agreed to go along with Barruetta’s plan

in order to help his friend Crosthwaite. Thomas made

clear that he did not want to speak with Barruetta unless

Crosthwaite was present, and insisted that he would not

participate in the transaction unless accompanied by

Crosthwaite.

*2 Finally, a deal was arranged for December 2, 1992.

Barruetta informed the DEA agents that Thomas and

Crosthwaite would sell three pounds of methamphetamine

in exchange for $25,000. On December 2, 1992, the deal

did not take place. Thomas and Crosthwaite had told

Barruetta that the drugs were supposed to be delivered by

a third party who was driving in from Escondido. On

December 2, 1992, after waiting for about two hours,

Agent Hinojosa decided to postpone the deal to the next

day. It is undisputed that, until December 3, 1992, the day

the deal actually took place, no one had mentioned

Of

Solorio’s name.

Although there is a factual dispute regarding the events

that took place on December 3, 1992, as soon as the drugs

were delivered to Thomas, the DEA Agents arrested

Thomas and Crosthwaite and, subsequently, Solorio, who

had delivered the drugs to Thomas.

DISCUSSION

I, Outrageous Government Conduct

[1] Thomas and Solorio contend that the government’s

activities were so outrageous as to violate due process.

We review de novo the district court’s refusal to dismiss

the indictment on the basis that the government’s conduct

was not outrageous. United States v. Garza-Juarez, 992

F.2d 896, 903 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct.

724, 126 LEd.2d 688 (1993). All underlying factual

findings must be accepted as true unless clearly erroneous.

United States v. Bogart, 783 F.2d 1428, 1434 (9th

Cir.1986). [FN1]

[2] At the outset, we must determine whether Solorio has

Standing to raise the outrageous government conduct

claim. The government claims that the district court erred

in concluding that, as a member of the conspiracy, Solorio

has standing to bring this claim. We agree.

In United States v. Emmert, 829 F.2d 805 (9th Cir.1987),

the court held that one of the conspirators in that case

"lacked standing to object to the government's activities ...

[because] he was never an actual target in the conspiracy.”

Id. at 811. Thus, it is not true, as the district court

assumed, that all members of a conspiracy have standing

10f

to object to government activities targeted at the

conspiracy. Solorio concedes that during the three months

of discussions between Crosthwaite, Barruetta, the federal

agents and Thomas, Jose Solorio’s name was never

mentioned, nor was he seen by the agents before

December 3, 1992. In light of Solorio’s concession and the

holding in Emmert, 829 F.2d at 811, we conclude that

Solorio lacks standing to raise the outrageous government

conduct claim. It is undisputed, however, that Thomas has

standing to raise the claim and, accordingly, we proceed to

the merits.

The prohibition against outrageous government conduct

is a prophylactic rule that enables the courts to exercise a

supervisory role over the government’s activities and to

ensure that the executive branch carries out its tasks in a

lawful manner. What activity amounts to outrageous

conduct, of course, is not easily defined. As the Bogart

court explained, the Supreme Court’s attempts to give a

more definite meaning to the term "outrageous conduct,"

using terms such as "fundamentally unfair" or "shocking to

the universal sense of justice," United States v. Russell,

411 US. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d

366 (1973), only highlight the fact that what constitutes

outrageous conduct is "indefinable." 783 F.2d at 1435.

However, it is also important to recognize that "[t}he

faculties of the Due Process Clause may be indefinite and

vague, but the mode of their ascertainment is not

self-willed.". Rochin v. California, 342 U.S. 165, 172, 72

S.Ct. 205, 209, 96 L.Ed. 183 (1952). Thus, our inquiry

———e mC. le COCO

11f

must not be "ad hoc and episodic but duly mindful of

reconciling the needs both of continuity and of change in

a progressive society." Id.

*3 Exercise of this supervision is not some Olympian task,

performed by those remote from the process being

supervised. That process has as its point and purpose the

obtaining of a conviction before a federal judge and a

sentence imposed by a federal judge. The judge is

indispensable, a necessary co- operator if the informer’s

plan is to work. The judge cannot pretend to be

uninvolved. The judge must either repudiate the

unwholesome scheme or ratify it by participating in its

climax.

[3] An allegation of outrageous government conduct is

different from an entrapment defense in at least two

respects: (1) technically, it is not a defense and, if

successful, results in the dismissal of the indictment,

Bogart, 783 F.2d at 1432, n. 2, and (2) if the government’s

conduct is found to be outrageous, the defendant’s

predisposition to commit the crime is irrelevant. Id. at

1433. The reason that the defendant’s predisposition is

not relevant to a determination of whether the

government's conduct was outrageous, is that the purpose

of the doctrine is to punish and deter government abuse

of power. In Greene v. United States, 454 F.2d 783 (9th

Cir.1971), the Ninth Circuit established that when the

government engages in outrageous conduct, the resulting

conviction must be reversed. See also Bogart, 783 F.2d

at 1432 ("[w]e have repeatedly held that the due process

12f

outrageous conduct defense ’survived the Court’s review’

") (citing cases); United States v. Batres-Santolino, 521

F.Supp. 744

(N.D.Cal.1981) (dismissing indictment on the basis ot

outrageous government conduct); United States v. Twigg,

588 F.2d 373 (3d Cir.1978) (same); United States v. Lard,

734 F.2d 1290 (8th Cir.1984) (dismissing the indictment on

the ground of entrapment, but suggesting that the

government’s conduct would have satisfied the higher

outrageous conduct standard).

[4] To determine whether the kind of activity engaged in

by the government in this case is_ sufficiently

unconscionable to require the court’s intervention, we

must balance the government’s need to engage in this type

of operation in order to stop drug trafficking, the benefits

of the activity, and the costs both to the individual and to

society at large of the operation.

As the Supreme Court explained in Rochin, although the

determination of what constitutes outrageous government

conduct necessarily requires courts to make a normative

judgment, it is also important that we not apply our

"merely personal and private notions and disregard the

limits that bind judges in their judicial function." 342 U.S.

at 170, 72 S.Ct. at 208. Instead, we must explain how the

conduct at issue raises due process concerns. See, ¢.g.,

Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1,

28-40, 111 S.Ct. 1032, 1048-55, 113 LEd.2d 1 (1990)

(Scalia J. concurring); see also Stanford v. Kentucky, 492

U.S. 361, 370, 109 S.Ct. 2969, 2975, 106 L.Ed.2d 306

13f

(1989). Finally, "[e]ven though the concept of due process

of law is not final and fixed, these limits are derived from

considerations that are fused in the whole nature of our

judicial process." Id. The Ninth Circuit

repeatedly has recognized this constraint in applying the

outrageous government conduct doctrine. United States

v. Simpson, 813 F.2d 1462 (9th Cir.), cert. denied, 484 U.S.

898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987). See also,

United States v. Penn, 647 F.2d 876, 880-84 (9th Cir.) (en

banc), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66

L.Ed.2d 134 (1980).

*4 Thomas contends that the government’s exploitation of

the friendship between Barruetta and Crosthwaite and that

between Crosthwaite and himself amounted to outrageous

government conduct. This argument has some merit. As

noted above, however, the Ninth Circuit has held that the

government is permitted to exploit intimate relationships.

Therefore, if that were the only basis for Thomas’

outrageous conduct claim, we would have to reject it.

Thomas’s central contention, however, is that the

confidential informant, who essentially developed the

crime, was paid a fee contingent upon conviction. The

amount of Barruetta’s fee was based on the rate of

conviction, the amount of drugs involved, and the value of

the assets seized. It was not based on the amount of

information provided. This type of arrangement creates

perverse incentives for confidential informants. Here,

these incentives were compounded by the fact that the

confidential informant was the choreographer of the

14f

crime. In such circumstances, there is too great an

incentive for informants to fabricate evidence and to

maximize the amount of drugs involved. When an

informant is given the authority to develop the crime and

his remuneration depends on whether the defendants are

convicted and on the quantity of the drugs involved, it is

extremely likely that innocent people will be prosecuted

and convicted, and that informants will induce defendants

to sell greater quantities of drugs than they are

predisposed to sell.

It is undisputed that the government has a strong interest

in controlling illegal drug trafficking. It also has been

established that, in achieving this legitimate goal, the

government may engage in "sting operations" and may use

informants. Within certain limits, it is permissible for the

government to accord benefits, including monetary

rewards, to informants in exchange for information

regarding drug trafficking and other crimes. See, e¢.g.,

U.S.S.G. s 5K1.1 (providing that a departure may be

warranted when a defendant provides “substantial

assistance in the investigation or prosecution of another"

defendant) (emphasis supplied).

This case is different. Here the informant’s contingency

fee agreement was based not on how much information he

would provide, but on whether the people targeted would

be convicted, on the quantity of the drugs involved, and on

the value of the assets seized. It is hard to understand

why the government would enter into an agreement in

which the informant’s remuneration is based on the

15f

number of convictions obtained. The government has a

legitimate interest in discovering information regarding

drug trafficking. Sometimes, that information will be

inculpatory and thus lead to a conviction. Convicting

individuals who engage in criminal activities, however, is

the means by which the government controls crime. The

government has an equally strong interest in ensuring that

the innocent are not convicted. See, e.g., Patterson v. New

York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d

281 (it is "a fundamental determination of our society that

it is far worse to convict an innocent man than to let a

guilty man go free.") (quoting In re Winship, 397 U.S. 358,

372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan J.,

concurring). By creating a monetary incentive for

informants to maximize convictions, the government

appears to have made the means to a legitimate end the

end itself. This is impermissible.

*5 "Our cases reflect ’continual insistence upon respect

for the teachings of history [and] solid recognition of the

basic values that underlie our society.’ " Michael H. v.

Gerald D., 491 U.S. 110, 122-23, 109 S.Ct. 2333, 2342, 105

L.Ed.2d 91 (1989) (citing Griswald v. Connecticut, 381

U.S. 479, 501, 85 S.Ct. 1678, 1690-91, 14 L.Ed.2d 510

(1965)). The Supreme Court repeatedly has stated that

the Due Process Clause affords protections "so rooted in

the traditions and conscience of our people as to be

ranked as fundamental." Snyder v. Massachusetts 291 U.S.

97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Thus, to

determine whether the government’s conduct in this case

ELAR Type ay ate Oe Oe

16f

violated the Due Process Clause, we begin with an inquiry

into whether the government transgressed fundamental

principles "traditionally protected by our society." Id. at

122, 54 S.Ct. at 338.

The government’s conduct in this case is reminiscent of

the infamous "Reward Statutes," enacted by the English

Parliament in 1692, which promised monetary rewards--so

called "blood money certificates"--to those who would

provide information leading to the conviction of criminals.

This perverse incentive structure was sharply criticized,

and eventually abandoned, when, in 1754, it was

discovered that a group of career informants had framed

innocent individuals in order to collect the monetary

reward and had provided false information which led to

their executions. [FN2] In his Commentaries, Blackstone

discusses a similar practice whereby convicted felons

received monetary rewards and in some cases a pardon of

all capital offenses for providing information leading to

the conviction of another. According to Blackstone, this

practice of so called "“approvements" was eventually

abandoned: "For the truth was, as Sir Matthew Hale

observes, that more mischief hath arisen to good men by

these kind of approvements, upon false and malicious

accusations of desperate villains, than benefit to the public

by the discovery and conviction of real offenders."

William Blackstone, Commentaries on the Laws of

England, vol. 4, p. 325 (1765). As these examples show,

there is historical precedent, rooted in the common law,

that supports the conclusion that the government’s conduct

17f

in this case "offend{[s] the notions of justice of

English-Speaking peoples even toward those charged with

the most heinous offenses." Rochin, 342 U.S. at 169, 72

S.Ct. at 208 (citation omitted).

When, as in this case, the government gives a confidential

informant the authority to develop the crime and his

monetary reward depends on getting people convicted and

on the magnitude of the drug transaction, the informant

has too great an incentive to fabricate evidence and distort

the truth. As the consequences of the "Reward Statutes"

reveal, under these circumstances, there is too high a risk

that a criminal defendant will be tried on the basis of false

information and that the informant, although working for

the government, will fail to disclose exculpatory facts.

The inherent danger of basing a paid informant’s

compensation on the rate of conviction and the quantity

of the drugs is exacerbated when the government engages

in "sting operations," which accord the government almost

exclusive control over the information relating to the

criminal activity. The danger is further exacerbated where

the party with the financial incentive is the person

orchestrating the crime. Unlike cases in which the paid

informant merely provides information regarding ongoing

criminal activities, in a "sting operation" of this kind the

paid informant who structures the crime decides whether

or not and at what time there will be witnesses present,

which conversations will be recorded, whether to reveal

any evidence of the defendant’s reluctance to engage in

the deal, and the like. Complete control over the "crime"

—

18f

makes "sting operations" an efficient law enforcement

technique. However, this same feature creates enormous

potential for abuse. When, as here, "sting operations" are

combined with contingency fees designed to maximize the

conviction rate and the amount of drugs, it is likely that

this potential will become actual.

*6 At a minimum, the Due Process Clause protects

against the conviction of individuals on the basis of

evidence that has such a high risk of being false. See, e.g.,

Mathews v. Eldridge, 424 U.S. 319, 347-49, 96 S.Ct. 893,

908-10, 47 L.Ed.2d 18 (1976); see also Goldberg v. Kelly,

397 U.S. 254, 270, 90 S.Ct. 1011, 1021-22, 25 L.Ed.2d 287

(1970). The likelihood that the government’s actions will

lead to the conviction of innocent people thus

distinguishes this case from cases such as Simpson, 813

F.2d at 1466, and Penn, 647 F.2d at 880. The

government’s exploitation of intimate

relationships at issue in those cases may be offensive, but

it does not undermine the reliability of the evidence

obtained. Similarly, in all other cases in which courts have

declined to apply the outrageous government conduct

doctrine, there was not a high a risk of convicting innocent

people on the basis of false information. See, e.g.,

Emmert, 829 F.2d 805 (no dismissal although the

government intimidated college student and offered him

large sum of money to provide cocaine for government

agent); United States v. Smith, 924 F.2d 889 (9th

Cir.1991) (not outrageous for government to get 18 year

old drug rehabilitation patient to deal drugs); see also

19f

United States v. Luttrell, 889 F.2d 806 (9th Cir.1989),

amended, 923 F.2d 764 (en banc) (9th Cir.1991) (not

outrageous conduct where government offered money to

defendants to act illegally and resisted one defendant’s

attempt to withdraw from the plan); United States v.

Sternberg, 803 F.2d 422, 430 (9th Cir.1986) (upholding

conviction although informant had acted v-iawfully);

United States v. Wiley, 794 F.2d 514, 515 (9th Cir.1986)

(permissible to introduce drugs in prison to identify

distribution network).

The totality of the circumstances in this case makes clear

that from the beginning to the end, this operation was

conducted in an outrageous manner. The government

brought a foreign national to the United States in order to

create a crime. The confidential informant accepted a

bribe from Crosthwaite and in return promised to get him

an illegal visa and his car back. When Barruetta realized

that Thomas was reluctant to participate in the drug sale,

he offered Thomas cocaine and marijuana. which Thomas

did not accept, as an incentive for engaging in the criminal

activity. In fact, in light of Barruetta’s direct incentives to

get the defendants convicted, his testimony should have

been considered inherently unreliable. When looking at

this operation as a whole and at the behavior of the

government agent, which ranged from improper conduct

to outright criminal acts, it is undeniable that the

government’s conduct was outrageous.

The government's conduct here was at least as disturbing

as it was in prior cases in which the courts reversed

20f

convictions based on outrageous government conduct.

See, e.g., Greene, 454 F.2d 783 (holding that outrageous

conduct exists when the government manufactures the

criminal activity and initiates contact with defendants);

see also Twigg, 588 F.2d 373 (holding that it was

outrageous conduct for the government to supply a hard

to find an essential ingredient of the crime);

Batres-Santolino, 521 F.Supp. 744 (holding that outrageous

conduct exists when the government supplies all the drugs

and defendants were not involved in drug-related crime

until the government came on the scene); Lard, 734 F.2d

at 1296 (stating that it was outrageous for the government

to manufacture a crime).

*7 We cannot condone the government’s actions in this

case. Law enforcement agents are entrusted with

awesome power. But with that power also comes a

responsibility to guard against its abuse, a responsibility

that the government in this case has abdicated. Were we

to tolerate the government’s conduct in this case, we

would participate in that abuse. “However, this [c]ourt

too has its responsibility.". Rochin, 342 U.S. at 169, 72

S.Ct. at

208. As the Supreme Court stated in Russell, 411 U.S. at

431, 93 S.Ct. at 1642, the government’s activities here were

such that “due process principles should bar the

government from invoking judicial processes to obtain a

conviction”. Accordingly, we reverse.

II. Solorio’s Other Claims

1. Sufficiency of the Evidence

21f

Solorio contends that there was insufficient evidence of

his involvement with the conspiracy. In resolving this

issue, we must determine “whether after viewing the

evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also United

States v. Mares, 940 F.2d 455, 560 (9th Cir.1991).

[5] There is a factual dispute regarding the events that

took place on December 3, 1992. According to the

government, Barruetta, Crosthwaite, and the DEA Agents

met at the "Big Bear” parking lot. Thomas, driving a

motor home, arrived at an adjacent lot, referred to as the

Long’s drug store parking lot. Shortly thereafter, Solorio,

who at the time lived in Escondido, arrived at the Long’s

parking lot driving a brown truck. The government

contends that Solorio delivered the methamphetamine

wrapped in newspaper to Thomas’s motor home, then

drove off, re-parking the brown truck in an adjacent lot.

None of the officers, however, actually saw the person who

delivered the drugs. Solorio eventually was arrested at the

drug store after he re-parked the truck. Officer Perry

Bryant, one of the arresting officers, testified that Solorio

smelled of methamphetamine as did the brown truck he

had been driving. At the time of arrest, Solorio was in

possession of keys to the brown truck.

Agent Goldberg testified in front of the Grand Jury that

he had seen Solorio deliver the drugs to Thomas, but at

22f

trial he admitted that his Grand Jury testimony was false

and that Officer Bryant’s version of the facts was accurate.

Officer Bryant testified that he saw someone get out of the

brown truck carrying an object wrapped in newspaper,

which he delivered to Thomas. Officer Bryant, however,

testified that he could not actually see the object covered

by the newspaper. Solorio contends that the newspapers

that were found in the motor home belonged to Barruetta.

Finally, the one fingerprint found on the box containing

the drugs did not match Solorio’s fingerprints.

It is undisputed that there was a conspiracy. Once the

existence of a conspiracy has been established, "evidence

of only a slight connection to the conspiracy” is sufficient

to convict for participation in the conspiracy. United

States v. Taylor, 802 F.2d 1108, 1116 (9th Cir.1986), cert.

denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164

(1987). Circumstantial evidence that Solorio was a

member of the conspiracy is sufficient to support his

conviction. United States v. Castro, 972 F.2d 1107, 1110

(9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1350,

122 L.Ed.2d 731 (1993). Viewed in the light most

favorable to the prosecution, the circumstantial evidence

presented here showed that Solorio drove the brown truck

to the parking lot, transferred the drugs to the mobile

home driven by Thomas, walked to the Long’s Drug Store

and was later arrested. At the time of arrest, Solorio

smelled of methamphetamine and was carrying the keys to

the brown truck. Based on this evidence, the jury

reasonably could have concluded that he was the person

23f

who delivered the drugs. Accordingly, we conclude that

there was sufficient evidence that Solorio was a member

of the conspiracy.

2. Prosecutorial Misconduct

*8 [6] Solorio makes several claims of prosecutorial

misconduct.

According to Solorio, the prosecutor: (1) misrepresented

the evidence; (2) instructed the jury on a legal theory on

which the district court had refused to instruct the jury;

(3) asked leading questions to most of the government’s

witnesses; (4) misrepresented his post-arrest statement

and impermissibly referred to his post-arrest silence in her

closing argument; (5) ignoring the court’s admonitions,

she repeatedly asked the defense’s witnesses

"argumentative and prejudicial" questions. The

government maintains that there was no misconduct, and

even if there were, that any error was harmless.

Solorio’s trial attorney failed to object to the prosecutor’s

comments during closing argument. The defense’s failure

to raise a timely objection requires the appellate court to

review the issue for plain error. See United States v.

Tarazon, 989 F.2d 1045, 1051 (9th Cir.), cert. denied, ---

U.S. ---, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993) (citing

cases); see also United States v. Beiry, 627 F.2d 193, 199

(9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925,

66 L.Ed.2d 843 (1981). However, Solorio’s other claims

are based on statements and actions of the prosecutor to

which his attorney did object and, thus, reversal is

warranted if the misconduct, viewed in the context of the

24f

whole trial, more likely than not prejudiced Solorio. See

United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th

Cir.1987).

After carefully reviewing the record, we conclude that in

light of the government’s duty to ensure that criminal

defendants receive a fair trial, the prosecutor probably

acted improperly. However, "[e]ven if misconduct

occurred, reversal is warranted only if it is more probable

than not that the misconduct materially affected the

verdict.” United States v. Christophe, 833 F.2d

1296, 1301 (9th Cir.1987). With regard to Solorio’s

principal claim, we must apply an even more stringent

standard of review because of defense counsel’s failure to

object to the prosecutor’s comments. Accordingly, viewing

the record as a whole, we conclude that any impropriety

did not result in a miscarriage of justice. United States v.

Olano, --- U.S. ----, ----, 113

S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993).

CONCLUSION

We hold that the government’s conduct in this case was

outrageous and a violation of due process. Therefore, we

reverse Thomas’s conviction. However, we affirm

Solorio’s conviction because he lacks standing to raise the

outrageous government conduct claim and because his

other claims lack merit.

REVERSED IN PART. AFFIRMED IN PART.

FN* The Honorable Samuel P. King, United States

District Judge for the District of Hawaii, sitting by

25f

designation.

FN1. The court in Bogart subsequently vacated the

part of the opinion in which it affirmed one of the

co-defendant’s convictions on the ground that he lacked

Standing to raise the outrageous government conduct

claim.

See United States v. Wingender, 790 F.2d 802 (9th

Cir.1986).

FN2. See John H. Langbein, Shaping the

Eighteenth-Century Criminal Trial:

A View from the Ryder Sources, 50 Univ. of Chicago

L.Rev. 1, 106-14 (1983) (discussing the Macdaniel scandal

and its repercussions for our concept of a criminal trial).

See also Sir William Holdsworth, A History of the English

Law, vol. 13, p. 395 (1952) (discussing the repeal of the

reward statutes).

End of Document