10th Cir. Finds No Entrapment Or 'Outrageous Government Conduct'

Despite obvious government participation and what might be construed as extensive involvement, the Tenth Circuit ultimately did not see any applicable entrapment or other defenses.

Defendants Randy Dyke and Don Steele were operating a small crime ring on a Kansas farm, where they forged checks, and dealt pills and marijuana. When undercover government agents showed up, they proposed the idea of counterfeiting currency and manufacturing methamphetamine, the agents claiming that they had the resources to make this plan come to fruition. Steel and Dyke in particular, who said he'd been "dreaming about" getting into meth for years, hopped on this enticing offer right away.

They were then arrested and found guilty of drug, forgery, and counterfeiting charges, and also denied their entrapment defense. On appeal to the Tenth Circuit, Dyke and Steel claimed that the charges should have been dismissed as a matter of law based on a newly raised defense of "outrageous governmental conduct."

The Tenth Circuit, re-assessed both the entrapment defense and discussed "outrageous governmental conduct."

As cited in United States v. Ford, a successful entrapment defense exists when the government 1. induces the defendant to commit an offense that 2. the defendant was not predisposed to commit. The court was quick to shoot this down when applied to our defendants, seeing it as fairly obvious that Dyke and Steele were predisposed to deal in drugs and fraudulent activity already, anyway, making entrapment moot.

They then turned to the current issue of "outrageous governmental conduct." There is some lengthy discussion about how the issue of its definition is not entirely settled, and that various circuits recognized it differently. The defense itself is not rooted in any statute, but based more on case law and the Due Process Clause. The Tenth Circuit recognized this inconsistency and the rather unstable nature of the defense, and approached this issue with a slightly more generalized view.

They did note that existing cases suggest that the defense is usually characterized by either excessive involvement with the creation of the crime, or significant coercion in inducing the crime. They also said that the defendants' predisposition, alongside their past and current conduct was all relevant when weighted against the government's behavior in a "totality of the circumstances" assessment of the situation.

Buying alcohol for the alleged suspects, trading a fuel pump for contraband, and offering resources and connections leading to the illegal activity (essentially what the agents did in this case), was not close to meeting the standard of clearly intolerable behavior that "outrageous governmental conduct" would suggest.

The court also noted that they regularly approved of governmental sting operations that were far more aggressive, and therefore, there was indeed no entrapment, or "outrageous governmental conduct" here. The district court's decision was affirmed, and the convictions were upheld.

Related Resources:

• United States v. Dyke (Tenth Circuit Court of Appeals)
• Where Should the Second Circuit Draw the Entrapment Line? (FindLaw's Second Circuit Blog)
• What Is Entrapment? (FindLaw's Blotter)