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Cuckolded Defendant Can't Get New Trial for 'Outrageous Conduct'

By Robyn Hagan Cain on March 25, 2013 | Last updated on March 21, 2019

Guy Westmoreland may be one of "the bad guys," but he got a pretty rough deal from the government.

First he moved for a new murder trial after learning that an Illinois State Police agent had an affair with his wife while the state was building a case against Westmoreland. Then, the district court waited eight years to deny his motion.

Though the cops and the district court weren't very cool about the case, the Seventh Circuit Court of Appeals declined to offer relief.

Westmoreland was convicted in two trials more than ten years ago for conspiracy to distribute a controlled substance and five additional counts stemming from the murder of the wife of his drug-dealing partner. The Seventh Circuit affirmed those convictions in 2001 and 2002.

But Westmoreland wasn't quite finished.

While his appeal in the murder case was pending, Westmoreland filed a motion for new trial in 2002 under Federal Rule of Criminal Procedure 33. He argued that the affair was outrageous conduct that violated his right to due process, and that he should get a new trial on the murder convictions based on newly-discovered evidence.

Other than granting the government a time extension to file its response, the district court failed to take action on Westmoreland's motion for several years. In December 2010 -- more than eight years later -- the court denied his motion.

While the eight-year delay in the district court's decision raised a few eyebrows on the Seventh Circuit, the appellate court agreed this week that Westmoreland's arguments on the merits didn't warrant overturning his convictions or ordering a new trial.

Westmoreland's "outrageous conduct" argument was based on dictum in U.S. v. Russell. In that case, then-Justice Rehnquist suggested that the Supreme Court "may some day be presented" with government conduct so outrageous that it should bar the government from prosecuting at all.

The problem, however, is that the Court never defined what kind of conduct would be the "outrageous" bar, and the Seventh Circuit has declined to recognize such a defense without Supreme Court guidance.

Furthermore, the appellate court reasoned that if such "outrageous conduct" exists, Westmoreland still wouldn't get a prosecutorial pass. Here, the murder happened long before the police agent met Westmoreland's wife. While the affair tainted the investigation, it didn't play a role in the crime itself and it wasn't a violation of Westmoreland's due process rights.

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