718 F.3d 1282 (10th Cir. 2013), 12-3057, United States v. Dyke

Docket Nº:12-3057, 12-3060.
Citation:718 F.3d 1282
Opinion Judge:GORSUCH, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Randy Jay DYKE, Defendant-Appellant, Federal Public Defender for the Offices of the Northern And Eastern Districts Of Oklahoma, Amicus Curiae. United States of America, Plaintiff-Appellee, v. Don Milton Steele, a/k/a Donald Milton Steele, Defendant-Appellant, Federal Public Defender for the Offices o
Attorney:Lumen N. Mulligan, Lawrence, KS, for Defendant-Appellant Randy Jay Dyke. Jonathan Laurans, Kansas City, MI, for Defendant-Appellant Donald Milton Steele. Tristram W. Hunt, Assistant United States Attorney, Kansas City, KS (Barry R. Grissom, United States Attorney, Kansas City, KS, with him on the...
Judge Panel:Before HARTZ, ANDERSON, and GORSUCH, Circuit Judges.
Case Date:June 17, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1282

718 F.3d 1282 (10th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Randy Jay DYKE, Defendant-Appellant,

Federal Public Defender for the Offices of the Northern And Eastern Districts Of Oklahoma, Amicus Curiae.

United States of America, Plaintiff-Appellee,

v.

Don Milton Steele, a/k/a Donald Milton Steele, Defendant-Appellant,

Federal Public Defender for the Offices of the Northern and Eastern Districts of Oklahoma, Amicus Curiae.

Nos. 12-3057, 12-3060.

United States Court of Appeals, Tenth Circuit.

June 17, 2013

Page 1283

[Copyrighted Material Omitted]

Page 1284

Lumen N. Mulligan, Lawrence, KS, for Defendant-Appellant Randy Jay Dyke.

Jonathan Laurans, Kansas City, MI, for Defendant-Appellant Donald Milton Steele.

Tristram W. Hunt, Assistant United States Attorney, Kansas City, KS (Barry R. Grissom, United States Attorney, Kansas City, KS, with him on the brief in Case No. 12-3057; Barry R. Grissom, United States Attorney, Kansas City, KS, James A. Brown, Assistant United States Attorney, Topeka, KS, on the brief in Case No. 12-3060) for Plaintiff-Appellee, and Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Deputy Assistant Attorney General, David M. Lieberman, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Washington, D.C., with them on the supplemental brief for Plaintiff-Appellee.

Julia L. O'Connell, Federal Public Defender, Carl Folsom, III, Research and Writing Specialist, Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa, OK, filed an amicus brief in support of Defendants-Appellants Randy Jay Dyke and Donald Milton Steele.

Before HARTZ, ANDERSON, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Randy Dyke and Donald Steele labored in a small time criminal ring on a Kansas farm. They got by forging checks, peddling pills, and selling marijuana. That is, until the government showed up. Undercover agents sought to convince them to expand their operations, that the road to riches lay in counterfeiting currency and manufacturing methamphetamine, and that the agents had the expertise to help make all this happen.

It didn't prove a hard sale. Mr. Dyke said he'd been " dreaming about" getting into the meth business for years and Mr. Steele replied cagily, " we either get three meals and a cot or we can retire." But by the time the sting operation ended, Mr. Steele's less sanguine prediction proved out. Soon he and his partner were arrested and a jury found them guilty of drug, forgery, and counterfeiting charges, rejecting their entrapment defense along the way.

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Recognizing the heavy burden facing anyone seeking to overturn a jury's factual findings, Mr. Dyke and Mr. Steele apply most of their efforts on appeal in a different direction. They argue the charges against them should've been dismissed as a matter of law, before the jury ever heard them, because the undercover operation amounted to " outrageous governmental conduct."

The so-called " outrageous governmental conduct defense" is something of a curiosity. In United States v. Russell, the Supreme Court held that the entrapment defense is based in statute and " focus[es] on the intent or predisposition of the defendant" rather than on a judgment about the propriety of the conduct of government agents. 411 U.S. 423, 429, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). After holding that much the Court then proceeded in dicta to imagine that it " may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that," quite apart from any statute, " due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 430, 93 S.Ct. 1637.

Within just three years, though, Russell 's author was busy trying to put back in the bottle the genie he had loosed. Speaking for only a plurality, Justice Rehnquist said that it is a " misapprehen[sion]" to think some robust outrageous governmental conduct defense might some day be found inhering in the due process clause. Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The " execution of the federal laws under our Constitution," the Justice reminded us, " is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations." Id. at 490, 96 S.Ct. 1646. What authority the due process clause does give courts to oversee the execution of the laws " come[s] into play only when the Government activity in question violates some protected right of the[d] efendant. " Id. (emphasis added). The fact that officers may engage in outrageous conduct is not enough: the remedy in those cases lies " not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law." Id. Judges, the Hampton plurality said, simply do not possess a " chancellor's foot veto over law enforcement practices of which [they do] not approve." Id. (internal quotation marks omitted).

What a plurality said in Hampton, a majority later repeated in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). There, the Court indicated that " even if we assume [the government's conduct] was so outrageous as to offend fundamental ‘ canons of decency and fairness,’ 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. ’ " Id. at 737 n. 9, 100 S.Ct. 2439 (internal citation omitted). The Supreme Court has since reminded us— regularly— that we are not to reverse convictions simply to punish bad behavior by governmental agents, but should do so only when the bad behavior precipitates serious prejudice to some recognized legal right of the particular defendant before us. See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 254-56, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); United States v. Mechanik, 475 U.S. 66, 72-73, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); United States v. Hasting, 461 U.S. 499, 506-07, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); United States v. Morrison, 449 U.S. 361, 365-67, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981).

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In light of all this forthing and backing, one might reasonably ask: what's left of the outrageous government conduct defense?

Critics suggest nothing. An individual defendant has no individualized interest in rooting out offensive governmental conduct, that's an interest all citizens share alike and so one better adapted for a legislature to pursue by statute than a defendant by motion. The plurality's direction in Hampton, repeated by the majority in Payner, tells us all we need to know. See, e.g., United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995); United States v. Tucker, 28 F.3d 1420, 1423-24 (6th Cir.1994); United States v. Miller, 891 F.2d 1265, 1271 (7th Cir.1989) (Easterbrook, J., concurring). Besides, to the extent the defendant's personal interests might be harmed by outrageous governmental conduct, other defenses exist to address the problem. If the conduct of the undercover government agents was so domineering that the defendant failed to form the necessary mens rea for an offense, he must be acquitted. Even if the necessary mens rea is present (and actus reus of course), if the government's conduct forced the defendant to engage in a crime or induced him to commit a crime he wasn't predisposed to commit, he will be able to invoke the duress or entrapment defenses.

Critics suggest still other reasons for burying the outrageous governmental conduct defense. They say it amounts to " circumvention" of the key limitation the Supreme Court has placed on the entrapment defense by focusing judicial attention on the government's conduct rather than on the defendant's predisposition, an avenue the Supreme Court explored and rejected when formulating the entrapment defense. Tucker, 28 F.3d at 1428. They say the defense, though nominally rooted in due process, smacks of disfavored criminal common lawmaking by federal courts. They say that the doctrine's remedy— exculpation of a defendant who admittedly committed a crime— sits awkwardly with the Supreme Court's instruction that such exclusionary-rule like remedies should be a last resort rather than an immediate impulse. See United States v. Van Engel, 15 F.3d 623, 631-32 (7th Cir.1993), abrogated on other grounds by United States v. Canoy, 38 F.3d 893, 902 (7th Cir.1994).

Critics worry, too, that the defense isn't susceptible to judicially manageable standards. What is " outrageous" enough to warrant relief, in their view, is a question that can be resolved only by consultation with a judge's " lower intestines." Miller, 891 F.2d at 1273. So, for example, Mr. Dyke and Mr. Steele explained at oral argument that they aren't outraged by sting operations directed against public officials. But they also suggested that they are offended by similar sting operations directed against " low-level" drug dealers (no doubt having themselves in mind). Others might not be troubled by either of these kinds of operations but might be offended instead by ones that risk injuring innocent bystanders (say, when the government sets up a fencing operation that creates demand for criminals to steal). Id. Others still might not be worried by any of these possibilities but might be upset when the government engages in or encourages immorality (say, when the government offers access to sexual favors in order to elicit incriminating information from a target). Id. In the end, any limits that might be imposed on...

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