# Petition for Writ of Certiorari — Tucker v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0911%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1049 ## Text ’ we we 'S 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 THRE GP CRITE eee ccc enwdeseeneesweta dans il TAs GP RR 6 eh ANG ia eee oieinnss4 iv PETITION FOR WRIT OF CERTIORARI. .............. 1 ee Es) MPT e er re te eee 1 err rr rr es 1 STATES GU Cees GOR 6c ws deena eke ar eee skies 2 REASONS RELIED UPON FOR GRANTING THE WRIT OF ogg tS eee ree trey yee ee 11 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 er rer te ee .22 tl, ll ss. = ws wa IS C8 GCS bce WG Ws bs dwes ceca conces 29 APPENDIX A, United States v. Tucker, ___F.3d___, No. 93-6026 gg au os 4 5» w 0's wo Xoo ©. 0'e ao we la 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 vi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0911%3A1. Public record. Not legal advice.