Tenth Circuit US v. Dyke 12-3057

Decision here.

   Dyke and Steele were ran a small drug dealing and forgery operation in Kansas.  Undercover government agents convinced them to expand into counterfeiting currency and selling meth, something which Dyke said he'd been dreaming of for years.  Reach for the stars, I guess.

   Anyway, Dyke and Steele went for it, with the assistance of the undercover agents who provided the expertise, some counterfeiting equipment, and the initial batch of meth.  What with the government being in on the operation from the beginning, they were unsurprisingly arrested.

   They argued entrapment at their trial, but the jury didn't see it that way and they were convicted.  On appeal, they argued that the agents' behavior was outrageous governmental conduct.

   The Tenth Circuit explains entrapment and outrageous conduct in this decision.  Entrapment is when the government induces a defendant  to commit a crime that he would not otherwise be predisposed to commit (that's according to federal statutes.  Colorado statutes put forth a similar sentiment using different terms, so the effect on state charges might not quite be identical).  Obviously, Dyke and Steele were predisposed to deal drugs and commit fraud, so entrapment did not apply.

   Outrageous governmental conduct is a little weirder.  This defense isn't based on statute, but rather on court decisions related to the due process clause.  And it isn't even entirely settled whether the Tenth Circuit recognizes it or not (Judge  Gorsuch describes the circuit's position on this defense as being in the never say never camp, or at least the don't-say-never-if-you-don't-have-to camp).  With that instability in mind, this defense is characterized by either excessive government involvement in the creation of the crime, or significant government coercion to induce the crime.

   Things like buying the suspects beer, trading a fuel pump for contraband, and offering expertise and equipment (which is the sort of thing the agents in this case did) don't meet this standard.  The court talks about how a person's prior criminal conduct helps determine what sort of investigative techniques would be outrageous (setting up someone with no criminal history is a little different than setting up a drug dealer by convincing them to sell different drugs).

   In any event, if there is an outrageous governmental conduct affirmative defense in this circuit, it doesn't apply to this case.  Nor does entrapment.  The convictions were affirmed.