vs.
Case No. _________________
DEFENDANT
___________________________/
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
following:
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. 1976).
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
room.
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.
Respectfully submitted,
_____________________________
Rex Curry,
Attorney for Defendant
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