Case No. _________________
MOTION TO DISMISS
COMES NOW the defendant, by and through his undersigned
attorney and asks the Court to dismiss the indictment in this cause pursuant
to Federal Rule of Criminal Procedure 12 and gives as cause therefore the
OUTRAGEOUS GOVERNMENT CONDUCT
That the indictment resulted from outrageous government
conduct constituting a deprivation of due process under the Fifth and Fourteenth
Amendments of the United States Constitution.
That Defendant is charged with one count of possession
with intent to distribute cocaine base. According to the government, an
adult agent of the government purchased the contraband from the defendant
after the government initiated the transaction and under the agent’s own
volition (without being forced or threatened to do so).
Though it is not a per se due process violation to
convict a defendant for a drug offense where it is the government that
initiates the alleged criminal activity and where the government either
purchases or supplies the drug, which party initiates the alleged crime
is relevant and important in assessing the degree of government involvement
in setting up the crime. Hampton v. United States, 425 U.S. at 491,
96 S.Ct. at 1650 (Powell, J., concurring); United States v. Gonzalez-Benitez,
537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323,
50 L.Ed.2d 291 (1976). Cf. United States v. Rueter, 536 F.2d 296 (9th Cir.
The extent of a Defendant's prior criminal involvement,
though not dispositive, is relevant to the issue of outrageous conduct and
whether the defendant or the government should ultimately be held accountable
for the instigation of the crime. United States v. Russell, 411 U.S.
423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Wylie, 625 F.2d
1371, 1374 (9th Cir. 1980), cert. denied, ---- U.S. -----, 101 S.Ct. 863,
66 L.Ed.2d 804 (1981).
In United States v. Russell, 411 U.S. 423, 431-32
(1973), Justice Rehnquist, writing for a majority of the Court, noted that
someday the Court might 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 process to obtain a
conviction." This was the first time the Supreme Court officially recognized
what is now commonly known as a due process defense based on governmental
overreaching and outrageous misconduct. Although Justice Rehnquist's
statement in Russell is essentially dicta, after the Court's decision in
Hampton v. United States, 425 U.S. 484 (1976), it was clear that a majority
of the members of the Court believed that the Due Process Clause could be
invoked as a ground for the dismissal of criminal charges where governmental
involvement in the criminal activities being prosecuted reached "a demonstrable
level of outrageousness."
In Sorrells v. United States, 287 U.S. 435 (1932)
and Sherman v. United States, 356 U.S. 369 (1958), the Court recognized
and sought to delineate the contours of the entrapment defense. In Sorrells,
a government prohibition agent appealed to the sentiments of a "comrade in
arms in the World War" (Sorrells) and successfully induced him to sell illicit
whiskey. Sorrells was promptly arrested and convicted of this offense. Sorrells
was the first case in which the Supreme Court upheld the validity of an
entrapment defense. Later in Sherman, the Court set forth what is now known
as the subjective theory of entrapment. After noting that the Court firmly
recognized the defense of entrapment, Chief Justice Warren, writing for
the majority, stated: "The function of law enforcement is the prevention
of crime and the apprehension of criminals. Manifestly, that function
does not include the manufacturing of crime. Criminal activity is such that
stealth and strategy are necessary weapons in the arsenal of the police
officer. However, a different question is presented when the criminal design
originates with the officials of the Government, and they implant in the
mind of an innocent person the disposition to commit the alleged offense
and induce its commission in order that they may prosecute." Id at 372 (quoting
in part Sorrells, 287 U.S. at 442).
The question of whether the involvement of government
agents rises to the level of outrageous governmental conduct is a question
of law for the court to determine. United States v. Citro, 842 F.2d at 1152-3;
United States v. Bogart, 783 F.2d at 1431; United States v. Ramirez, 710
F.2nd 535, 539 (9th Cir. 1983); United States v. McQuin, 612 F.2d at 1197;
United States v. Prairie, 572 F.2d at 1319. The issue may properly be raised
and decided by a pretrial motion to dismiss the indictment under Fed. R.
Crim. P. 12(b). United States v. Batres-Santolino, 521 F. Supp. 744 (N.D.
Cal. 1981); see also United States v. Duncan, 896 F.2d 271, 274 (7th Cir.
1990) (outrageous government conduct claim must be made by pretrial motion).
In Batres-Santolino, the court conducted an evidentiary hearing after which
it dismissed the indictment on due process grounds. Other courts have decided
to defer ruling on the pretrial motion until after trial. United States
v. Marcello, 537 F. Supp. 402 (C.D. Cal. 1982); Although there has
been some suggestion that the nature of the police conduct could be submitted
to the jury, it appears that the trial court should make the determination.
United States v. Twigg, 588 F.2d at 379 n.8; United States v. Johnson, 565
F.2d 179,181 (lst Cir. 1977), cert. denied, 434 U.S. 1075 (1978).
On appeal, the issue of whether the government's
conduct violated the defendant's due process rights is reviewed de novo
because the issue presents a question of law. United States v. Emmert, 829
F.2d at 810; United States v. Stenberg, 803 F.2d at 428 n.6 (citing Bogart,
783 F.2d at 1431). The court will view the evidence in the light most favorable
to the government, and will accept the district court's factual findings
unless they are clearly erroneous. Emmert, 829 F.2d at 810-11 (citing Bagnariol,
665 F.2d at 880).
The targeting of a defendant is sometimes an issue.
In United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991) (en banc), an
en banc panel of the Ninth Circuit vacated that part of a three-judge panel
ruling which had held that the government must have "reasoned grounds" based
on the due process clause to investigate an individual. It joined four sister
circuits which also rejected such a test. Id. at 764 (citing the District
of Columbia Circuit and the Tenth, Third, and Second Circuits). The Eighth
Circuit, in United States v. Jacobson, 893 F.2d 999 (8th Cir. 1990), rev'd
on other grounds, 112 S.Ct. 1535 (1992) held to the contrary, requiring
that the government show reasonable suspicion, based on articulable facts,
to justify targeting an individual for an undercover sting operation.
The government has always argued that it has the
right to lie and commit crimes in order to prosecute honest people engaged
in non-violent intercourse with consenting adults. The courts have
generally agreed. However, cases opposing outrageous government
conduct and/or entrapment may have a new vitality in light of Lawrence
v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W.
4574 (2003). According to Lawrence, U.S. adults have a privacy
right to engage in certain consensual nonviolent intercourse. In this
case the allegation involves economic intercourse in the privacy of a motel
According to the U.S. Supreme Court, it would
be unconstitutional for a defendant to be arrested for committing (or agreeing
to commit) sodomy with an undercover law enforcement officer (LEO).
According to Lawrence, it is no business of the U.S. government or any government
whether U.S. citizens do engage in sodomy. How can Lawrence deny
that U.S. citizens also have the right to recreate with drugs? Perhaps
at the same time as having sex. If the officer had performed a sodomy
“sting” operation (similar to a prostitution sting but for the sake of argument
let’s say it was non-commercial) and the officer had gone to a hotel room
and tempted a defendant into engaging in sodomy with the officer, and at
the same time had used drugs, and then before leaving the officer had purchased
some drugs to take, then that scenario showcase the legal arguments presented
here. Before Lawrence, LEO’s probably could have attempted to make
sting arrests for sodomy (and why they didn’t try it is an odd question itself.
Would they have tried a reverse-sting or a regular sting?). After
Lawrence, sodomy with a LEO in the privacy of a hotel room is no longer
prosecutable (whether the act is merely agreed to or completed). The
same argument should apply regarding drug charges under the same circumstances.
Attorney for Defendant
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KopBusters is a new reality show produced by NeverGetBusted.com.
In it, Barry and Candi along with their detectives set up stings across
America to catch crooked Kops.
KopBusters rented a house in Odessa, Texas and began growing two small
Christmas trees under a grow light similar to those used for growing marijuana.
When faced with a suspected marijuana grow, the police usually use illegal
FLIR cameras and/or lie on the search warrant affidavit claiming they have
probable cause to raid the house. Instead of conducting a proper investigation
which usually leads to no probable cause, the Kops lie on the affidavit
claiming a confidential informant saw the plants and/or the police could
smell marijuana coming from the suspected house.
The trap was set and less than 24 hours later, the Odessa narcotics unit
raided the house only to find KopBuster's attorney waiting under a system
of complex gadgetry and spy cameras that streamed online to the KopBuster's
secret mobile office nearby.
The attorney was handcuffed and later released when eleven KopBuster detectives
arrived with the media in tow to question the illegal raid. The police refused
to give KopBusters the search warrant affidavit which is suspected to contain
the lies regarding the probable cause.
The team of eleven freedom fighters clashed with the police demanding
answers for the illegal raid and the drug plant. The police would not comment
but later stated they were trying to charge KopBusters with a crime.
It is not illegal to grow plants under a light in your home but it is
illegal to lie on an affidavit and plant drugs on a citizen. This operation
was the first of its kind in the history of America. Police sometimes have
other police investigating their crimes but the American court system has
never dealt with a group of citizens stinging the police. Will the police
file charges on the team who took down the corrupt cops? We will keep you