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Outrageous Government Conduct

Outrageous government conduct occurs when the actions of law enforcement officers or informants are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–432 (1973).

“[T]he [g]overnment’s conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013), quoting United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).

This is “an extremely high standard.” Smith, 924 F.2d at 897. In fact, there have been only two reported federal appellate decisions in the entire country that have reversed convictions because of “outrageous government conduct.” Hullaby, 736 F.3d at 1262 (citations omitted).

The issue in these cases is whether the agents’ conduct was “so grossly shocking and so outrageous as to violate the universal sense of justice,” see Hullaby, 736 F.3d at 1262.

Where outrageous government conduct is alleged, every case must be resolved on its own particular facts and circumstances. The courts have developed no bright lines dictating when law enforcement crosses the line between what is acceptable and what is outrageous. Id.
The courts have, however, identified various factors that are relevant to whether the government’s conduct was outrageous:
  1. known criminal characteristics of the defendant;
  2. individualized suspicion of the defendant;
  3. the government’s role in creating the crime of conviction;
  4. the government’s encouragement of the defendant to commit the offense conduct;
  5. the nature of the government’s participation in the offense conduct; and
  6. the nature of the crime being pursued and the necessity for the actions taken in light of the nature of the criminal enterprise at issue.
United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013).
The factors identified above stem from cases where the alleged outrageous government conduct often involve entrapment-type behavior, such as:
  • engineering and directing a criminal enterprise from start to finish;
  • using excessive physical or mental coercion to convince an individual to commit a crime; and
  • generating new crimes merely for the sake of pressing charges.

In these cases, the courts use an “extremely high standard” for establishing outrageous government conduct warranting a due process dismissal of an indictment.

This article was last updated on Friday, December 28, 2019.

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