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Tuesday, July 07, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re "coercion" to engage in illegal activity

In USA v. John Smith (ND Ind., Simon), an 18-page opinion, Judge Ripple writes:

John Smith was arrested after a sting operation in which the Government had organized two fictional drug transactions. Based on his participation in that operation, a jury convicted Mr. Smith of both conspiring and attempting to possess with intent to distribute more than five kilograms of cocaine, transferring firearms with knowledge that they would be used in a drug trafficking crime, and possessing a firearm in furtherance of a drug trafficking crime. Mr. Smith appeals his conviction, arguing that the Government’s conduct violated his right to due process of law by coercing him to engage in illegal activity. After careful study of the governing case law and of the record, we conclude that no such coercion took place. The district court, therefore, did not plainly err by failing to dismiss Mr. Smith’s indictment. We therefore affirm the judgment of the district court. * * *

Mr. Smith contends that the Government violated his right to due process of law by soliciting him to participate in a fictional drug transaction completely operated by undercover agents. He relies on United States v. Russell, 411 U.S. 423 (1973), and its progeny. He acknowledges that he did not raise this argument before the district court, and therefore we review for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir. 1990). * * *

Our early cases expressed skepticism about the validity of the “outrageous government conduct” defense. See, e.g., Duncan, 896 F.2d at 275, 277 (noting that the doctrine’s validity was questionable and concluding that the district court did not commit plain error in refusing to recognize an “outrageous governmental conduct” defense); United States v. Belzer, 743 F.2d 1213, 1216–20 (7th Cir. 1984) (holding that the Government’s conduct was not outrageous and therefore did not violate due process). More recently, we have said that the defense “does not exist in this circuit.” [25] United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995). In Boyd, we explicitly rejected the “intimations that ‘outrageous governmental misconduct’ is an independent ground for ordering a new trial.” Id. Our rejection of the defense was premised in part on the Supreme Court’s instruction in United States v. Hasting, 461 U.S. 499 (1983), that “we are not to reverse convictions in order to punish prosecutors.”[26] * * *

Although we recognize that the Supreme Court has not closed the door entirely on this matter, this case certainly does not present us with an opportunity to reconsider our position. Instead, this case, in which the Government simply provided the defendant with the opportunity to commit an offense, is governed by the basic principles of entrapment. * * *

Conclusion. Because we do not recognize outrageous government conduct as cause for dismissing an indictment, Mr. Smith’s challenge to his conviction fails. In any event, the evidence reveals that Mr. Smith jumped at the opportunity to make money by providing protection for individuals involved in the illicit drug trade and that he was an active and enthusiastic participant throughout the sting operation. The district court, therefore, did not commit plain error by failing to dismiss Mr. Smith’s indictment on account of the Government’s conduct. The judgment of the district court is affirmed.

Posted by Marcia Oddi on July 7, 2015 04:43 PM
Posted to Ind. (7th Cir.) Decisions