June 24, 2019

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.


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