August 19, 2019

Archives for June 18, 2013

Tenth Circuit: Court Declines to Take Sides on Outrageous Governmental Conduct Defense

The Tenth Circuit Court of Appeals published its opinion in United States v. Dyke on Monday, June 17, 2013.

Randy Dyke and Donald Steele labored in a small time criminal ring on a Kansas farm. They forged checks, peddled pills, and sold marijuana. The government convinced them to expand their operation, and they eventually counterfeited currency and manufactured methamphetamine. A jury found them guilty of drug, forgery, and counterfeiting charges. They appealed, arguing the charges against them should have been dismissed as a matter of law because the undercover operation amounted to outrageous governmental conduct.

A defendant asserting the outrageous governmental conduct defense bears the burden of proving either “(1) excessive government involvement in the creation of the crime, or (2) significant governmental coercion to induce the crime.” United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994).

The Tenth Circuit found that the existing cases suggested that looking to the defendants’ predisposition and his past and current conduct was appropriate because what qualifies as outrageous governmental conduct depends on an appreciation of the totality of the circumstances. After reviewing the record, the Tenth Circuit concluded that a reasonable jury could well have found Mr. Steele predisposed to manufacture methamphetamine and counterfeit currency.

The Tenth Circuit declined to take sides in the debate on the outrageous governmental conduct defense because in this case — as in so many cases before it — the right answers to the hard questions about the doctrine just don’t matter. The Court found defendants’ convictions to be legally sound, and the Tenth Circuit was confident the government had not crossed any boundary line in this case.

AFFIRMED.

Tenth Circuit: Defendant’s Sentence for Cocaine Distribution and Revocation of Supervised Release Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Dunbar on Monday, June 17, 2013.

Defendant appealed his cocaine distribution conviction and the revocation of supervised release. He raised four challenges: (1) that the district court conducted an inadequate inquiry into his request for new counsel and abused its discretion in denying his request; (2) that the district court abused its discretion in failing to construe his pro se pleading and various oral protests as motions to withdraw his plea; (3) that his plea was not knowing and voluntary because his counsel had given him inaccurate information; and (4) that his sentence on revocation of supervised release was procedurally and substantively unreasonable.

The Tenth Circuit held as follows: first, the district court conducted an adequate inquiry into Defendant’s request for new counsel, and did not abuse its discretion in denying the request because defense counsel’s explanation could persuade a reasonable jurist that counsel’s performance had been satisfactory and that any failures of communication had been Defendant’s fault. Second, the court did not err in declining to treat Defendant’s pro se pleading and oral statements as motions to withdraw his plea because Defendant was represented by counsel who did not make a timely motion to permit withdrawal of the plea and Defendant’s statements in any event were unclear or untimely. Third, Defendant did not raise in district court a challenge to the validity of his plea, and there was no plain error because the pertinent facts were not established in the record. And fourth, as to Defendant’s sentence on violation of the terms of supervised release, he failed to show plain error with respect to the procedural reasonableness of his sentence and his sentence was not substantively unreasonable.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 6/17/13

On Monday, June 17, 2013, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Flud v. United States

Wing v. Janecka

United States v. Rivas

Anderson v. Lehman Brothers Bank

United States v. Hopkins

Lowery v. Edmondson

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.