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« A few contradictions | Main | patent secrecy orders »

Opinion on "outrageous government conduct"

Posted by David Hardy · 30 October 2013 01:27 PM

Opinion here. There is a defense known as "outrageous government conduct," which (as the opinion notes) requires truly outrageous action. Here, BATF hired an informant to cruise the tougher bars and try to recruit people to stage a home invasion of a mythical drug stash house full of a mythical amount of cocaine. Once he recruited a team, they were arrested for conspiracy to possess cocaine for purpose of sale, and for conspiracy to use a firearm in a drug transaction. They were convicted and appeal.

The court split 2-1. The majority finds this is not sufficiently outrageous. Judge Noonan dissents (p. 36), I think rather persuasively. The stash house and its drugs were a governmentally-created fiction. Defendants were recruited to act out the script. The informant was not told to seek out people who'd done this before or seemed predisposed to do it. The amount of drugs (which increases the sentence under the Sentencing Guidelines) was likewise a fiction.

He cites Judge Posner's observation that a reverse sting like this, to the extent it deters crime, has the paradoxical effect of making it safer to operate drug stash houses, and that drug distributors would probably be willing to pay the government to run these stings.

"Massively involved in the manufacture of the crime, the ATF’s actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court."

UPDATE: As the opinion notes, the informant urged the guy he was dealing with to recruit others. There was probably a reason behind this beyond maximizing the number of defendants. A Federal conspiracy charge requires proof that at least two people genuinely agreed to commit a crime. The informant doesn't count -- he has no intention to commit a crime. So he needs to recruit at least two others, so they can have a conspiracy.

· BATFE

6 Comments | Leave a comment

fwb | October 30, 2013 1:54 PM | Reply

And these charges do not fin any authority in the Constitution. The police powers were left with the states except for roughly 6 areas. 1) counterfeiting coin and securities 2) piracies on the High Seas 3) felonies on the high seas 4) offenses against the Law of Nations 5) securing copyright/patent 6) punishing treason. If the N&P clause carried any weight in implying police powers at the federal level that would negate the explicit grants of the power to punish counterfeiting, the power to secure copyrights/patents, and the powers to punish piracies and felonies on the high Seas, and offenses against the Law of Nations which are granted in the same section as the N&P restriction on lawmaking. All federal criminal laws outside these 6 areas are not part of any legitimate constitutional grant and everyone punished by the fed outside these 6 areas have been unconstitutionally attacked by their government.

If it were any other way, the Framers would not have seen the need to grant the limited police powers they granted.

Harry Schell | October 30, 2013 2:06 PM | Reply

This ought to go to SCOTUS and be reversed, if I were king.

The conspiracy started with BATF(!).

Incomprehensible, but they will get away with Fast + Furious, too.

Scary times.

MRN | October 31, 2013 10:30 AM | Reply

How is it that ALL the government actors are not guilty of the same conspiracy as the dupes they recruited? Are the government folks allowed to have their "finger's crossed"?

Brian | October 31, 2013 12:08 PM | Reply

If this conviction is reversed, then it puts most "foiled terrorist plot" convictions in jeopardy as they are usually fictions created by the government and used to bait the "terrorist" into a conspiracy charge.

Eldon Dickens | October 31, 2013 4:29 PM | Reply

So, why would not "entrapment" be a defense?

Anonymous | November 1, 2013 9:30 PM | Reply

Criminal actions created and dispersed by a criminal government. From the Whitehouse down to the cop on the beat, it`s depressing. From the President and his end around executive orders, to the highest law enforcement official in the country Eric Holder, to the slightly smaller but just as guilty Senators and Congressmen. Criminals ALL. And worse than your average law violators. These are the people ELECTED to their jobs by "the people" They should all be tried, not by a judge because they are just as corrupt, but by "the people", found guilty by "the people" and imprisoned by...you guessed it "the people" Their sentence to be determined by "the people"
Then and only then will I once again get a good nights sleep.

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