965 F.2d 906 (10th Cir. 1992), 90-8100, United States v. Mosley

Docket Nº:90-8100.
Citation:965 F.2d 906
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bobby Ray MOSLEY, Defendant-Appellant.
Case Date:May 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 906

965 F.2d 906 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Bobby Ray MOSLEY, Defendant-Appellant.

No. 90-8100.

United States Court of Appeals, Tenth Circuit

May 28, 1992

Page 907

Ronald G. Pretty, Cheyenne, Wyo., for defendant-appellant.

John R. Green, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Cheyenne, Wyo., and John R. Barksdale, Asst. U.S. Atty., Casper, Wyo., on the brief), for plaintiff-appellee.

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, District Judge. [*]

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EBEL, Circuit Judge.

This appeal addresses whether conduct by the Wyoming Division of Criminal Investigation ("DCI") was so outrageous as to violate the Defendant's due process rights and thus bar prosecution. We hold that the DCI's conduct was not sufficiently outrageous to warrant dismissal. Additionally, we hold that the district court's reading of the indictment to the jury, during which it added a comment pertaining to one of the words in the indictment, did not amount to a substantial amendment of the indictment so as to require a retrial. Finally, we hold that the district court correctly held that it did not have discretion to depart below the minimum sentence required by statute. Accordingly, we affirm the Defendant's conviction and sentence.


The DCI, upon receiving complaints of drug trafficking from citizens in Wheatland, Wyoming, assigned Special Agent Mike Arter to conduct an undercover investigation in the area. As part of this investigation, Arter frequented the Commodore Bar in Wheatland posing as a high-stakes drug dealer in an attempt to attract the attention of anyone involved in drug trafficking in the area.

After the operation had continued for approximately three months without success, the Defendant, Bobby Ray Mosley, approached Arter and asked Arter to sell him some marijuana. Arter first told Mosley that he would try to find some marijuana, but later informed him that he could not find any. Instead, Arter suggested that he could sell Mosley a pound of cocaine at what Arter admitted was a "good price" of $10,000. R., Vol. II, at 29. Mosley indicated that he wanted to buy a lesser quantity, and Arter eventually agreed to sell him four ounces of cocaine for $3,200. After they reached this agreement, Arter offered to "front" an additional four ounces of cocaine to Mosley--i.e., to provide additional drugs on credit with the understanding that Mosley would pay for the drugs five days after receiving them--and Mosley agreed.

At one point during the course of their negotiations, Mosley failed to show up for a meeting that he and Arter had scheduled at the Commodore. Arter had a barmaid who was friendly with Mosley, and with whom Arter had been sexually involved, telephone Mosley to remind Mosley of his appointment with Arter. Thereupon, Mosley met with Arter and the two struck their deal.

At an arranged meeting, Mosley gave Arter $3,200 and Arter gave Mosley eight ounces of cocaine, four sold outright and four on credit. Immediately thereafter, Mosley was arrested. He was tried, convicted, and sentenced in federal court for possession of with intent to distribute eight ounces of cocaine under 21 U.S.C. § 841(a)(1), conspiracy to distribute the same under 21 U.S.C. § 846, 1 and carrying a firearm during a drug trafficking offense under 18 U.S.C. § 924(c).


I. Outrageous Conduct

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.

  1. The existence of the outrageous conduct defense

    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

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    Constitution. 2 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, --- U.S. ----, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 147 (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).

    The outrageous conduct defense was first enunciated in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973): "[W]e 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, 93 S.Ct. at 1643 (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). Several years later, in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (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, 96 S.Ct. at 1653 (Powell, J., with Blackmun, J., concurring); id. at 496-97, 96 S.Ct. at 1653 (Brennan, J., with Stewart & Marshall, JJ., dissenting).

    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, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (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, 108 S.Ct. 233, 98 L.Ed.2d 192 (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, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983); United States v. Capo, 693 F.2d 1330, 1336 (11th Cir.), cert. denied, 460 U.S. 1092, 103 S.Ct. 1793, 76 L.Ed.2d 359, 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, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983); United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Johnson, 565 F.2d 179, 182 (1st Cir.1977), cert. denied, 434 U.S. 1075, 98 S.Ct. 1264, 55 L.Ed.2d 780 (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.

    Thus, outrageous conduct is a viable defense. 3 However, we conclude as a matter of law that the government's conduct in its investigation of Mosley was not sufficiently outrageous to provide Mosley with a defense to this prosecution. Accordingly,

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    we affirm the district court's denial of Mosley's motions to dismiss for outrageous conduct.

  2. The standard for outrageous conduct

    No federal court has defined the requirements of the outrageous conduct defense with any degree of precision. 4 Rather, the inquiry appears to revolve around the totality of the circumstances in any given case. See United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir.) ("Ultimately, every [outrageous conduct] case must be resolved on its own particular facts."), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). However, as the name of the defense implies, to warrant dismissal of an indictment, the government's conduct with respect to that indictment must be outrageous. Outrageousness must be determined by reference to " 'the universal sense of justice.' " See Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)).

    Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. See, e.g., Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (conduct must violate " 'fundamental fairness' " or " 'shock[ ] the universal sense of justice,' ") (quoting Kinsella, 361 U.S. at 246, 80 S.Ct. at 304); Nichols, 877 F.2d at 827 (conduct must be "shocking and outrageous and reach[ ] an 'intolerable level' ") (quoting Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643); United States v. Ryan, 548 F.2d 782, 789 (9th Cir.) (conduct must be "so grossly shocking and so outrageous as to violate the universal sense of justice"), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977).

    The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating. Nor is it intended merely as a device to circumvent the predisposition test in the entrapment defense. See United States v. Warren, 747 F.2d 1339, 1341-42 (10th Cir.1984) ("The outrageous governmental conduct defense is manifestly reserved for only 'the most intolerable government conduct,' ") (quoting Jannotti, 673 F.2d at 608); Ryan, 548 F.2d at 789 ("the due process channel...

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