When Can “Outrageous Conduct” Apply as a Defense? II
Posted on: March 6, 2009 by: admin
The Court in Mosely continued its outrageous conduct discussion:
[19] I. Outrageous Conduct
[20] Mosley asserts that the government’s conduct during its investigation of him was so outrageous that it violated his due process rights. Accordingly, he argues, the government should not be allowed to invoke the judicial system in connection with his case, and the charges against him should be dismissed.
[21] A. The existence of the outrageous conduct defense
[22] When the government’s conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct. A defendant may challenge such conduct by means of the outrageous conduct defense, which is predicated on the Due Process Clause of the Fifth Amendment to the United States Constitution.*fn2 The defense of outrageous conduct is distinct from the defense of entrapment in that the entrapment defense looks to the state of mind of the defendant to determine whether he was predisposed to commit the crime for which he is prosecuted. See Jacobson v. United States, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992). The outrageous conduct defense, in contrast, looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984).
[23] The outrageous conduct defense was first enunciated in United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973): “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 . . . .” Id. at 431-32 (citing Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952)). Several years later, in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976), a majority of Justices left open the possibility that an outrageous conduct defense based on the Due Process Clause might be invoked successfully even if the entrapment defense is unavailable because of preDisposition. Id. at 495 (Powell, J., with Blackmun, J., Concurring); id. at 496-97 (Brennan, J., with Stewart & Marshall, JJ., Dissenting).
[24] Notwithstanding the lack of a clear holding on outrageous conduct by the Supreme Court, most of the circuits, including this one, have recognized the viability of the outrageous conduct defense. See, e.g., United States v. Jacobson, 916 F.2d 467, 469 (8th Cir. 1990) (en banc), rev’d on other grounds, 118 L. Ed. 2d 174, 112 S. Ct. 1535 (1992); United States v. Nichols, 877 F.2d 825, 827 (10th Cir. 1989); United States v. Simpson, 813 F.2d 1462, 1464-65 (9th Cir.), cert. denied, 484 U.S. 898, 98 L. Ed. 2d 192, 108 S. Ct. 233 zz (1987); United States v. Arteaga, 807 F.2d 424, 426 (5th Cir. 1986); United States v. Kelly, 707 F.2d 1460, 1468 (D.C. Cir.), cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247, 104 S. Ct. 264 (1983); United States v. Capo, 693 F.2d 1330, 1336 (11th Cir.), cert. denied, 460 U.S. 1092, 76 L. Ed. 2d 359, 103 S. Ct. 1793, modified on other grounds sub nom. United States v. Lisenby, 716 F.2d 1355 (11th Cir. 1983); United States v. Myers, 692 F.2d 823, 837 (2d Cir. 1982), cert. denied, 461 U.S. 961 (1983); United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982); United States v. Johnson, 565 F.2d 179, 182 (1st Cir. 1977), cert. denied, 434 U.S. 1075 (1978); United States v. Quintana, 508 F.2d 867, 878 (7th Cir. 1975). We know of no circuit that has denied the viability of this defense.
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