March 23, 2019

Colorado Court of Appeals: Trial Court Erred in Finding Outrageous Government Conduct and Dismissing Case

The Colorado Court of Appeals issued its opinion in People v. Burlingame on Thursday, February 7, 2019.

Attempting to Influence a Public Servant—False Reporting—Outrageous Governmental Conduct—Work Product Privilege.

Defendant alleged that she went out drinking one night with a coworker and then went with him to his home. She reported that later that evening the coworker’s roommate raped her.

DNA evidence conclusively showed that it could not have been the roommate who had sexual contact with defendant; rather, the coworker had had sexual contact with defendant. Two prosecutors, a prosecutor’s office investigator, and a police detective interviewed defendant about these results at her home. The interview was conducted in the presence of family members and friends and was recorded on video. During the interview, defendant became upset and told the investigators and prosecutors to leave, and they did. Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

At a hearing, defendant argued that the videotape of the interview should be suppressed and the case should be dismissed because the government’s conduct was outrageous. Prosecutors repeatedly used the work product privilege to block evidence showing why they chose to videotape the interview or that might explain their decision making process in filing the charges. The trial court dismissed the case against defendant based on a finding of outrageous government conduct.

On appeal, the People asserted that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. Outrageous governmental conduct is conduct that violates fundamental fairness and shocks the universal sense of justice. Here, the trial court concluded, without evidentiary support, that videotaping the defendant was improper. Further, the prosecutor’s proper use of the work product privilege cannot from the basis for a finding of outrageous conduct. In addition, the trial court found a violation of the Victim Rights Act without identifying the specific section violated, and the videotape shows that defendant was treated with respect and was not harassed or abused. While the government’s behavior might be considered poor judgment or even legal error, the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous. Because the trial court’s findings of fact are not supported by the record, they were arbitrary and thus an abuse of discretion.

The order dismissing the case was reversed and the case was remanded with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

Summary provided courtesy of Colorado Lawyer.

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.