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Can I get my charges dismissed based on outrageous government conduct?


Yes, it's possible, to get your charges dismissed, especially if you're in federal court. Reverse sting operations are all the rage these days (think police posing as underage girls on- line in order to get people to agree to meet with them for sex). The police are always coming up with ingenious ways to ensnare people who normally wouldn't be inclined to commit crimes. Of course, sometimes they go too far. As a Jacksonville criminal attorney, I have witnessed the various police agencies engage in what I believed to be outrageous government conduct.

In the case of U.S. v. Hudson, a federal judge in California recently dismissed an indictment against three individuals who were induced by ATF agents to engage in a home invasion robbery of a fake drug stash house. The tale is almost to much to believe. An ATF agent, along with an LAPD cop and a confidential informant painted a picture of a poorly guarded stash house that contained 20 to 25 kilos of pure cocaine. The entire story was a lie and the stash house nonexistent. The agent set up the robbery and convinced the three defendants to participate. The agent asked one of the defendants to supply some guns for the job, which he did. The ATF agent then had all three defendants meet him at a "safe house" before committing the robbery. The defendants met the agent there, were promptly arrested and later charged with conspiracy to possess cocaine with intent to distribute and using or possessing a firearm in furtherance of a drug trafficking crime, along with other crimes. The defendant's lawyers moved to dismiss the indictment due to outrageous government conduct. Good idea!

The court granted the motion and dismissed the indictment. In a great opinion, the court wrote that "The outrageous -government-conduct doctrine permits a court to dismiss an indictment when the Government engages in conduct so grossly shocking and so outrageous as to violate the universal sense of justice". The court will focus on the actions of the government and not the actions of the defendant. In this way, it differs from (and is better) than an entrapment defense.

The court must consider a number of factors, including (1) the known criminal characteristics of the defendants; (2) the individualized suspicion of the defendants; (3) the government's role in creating the crime of conviction; (4) the government's encouragement of the defendants to commit the offense conduct; (5) the nature of the government's participation in the offense conduct and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

What does all this mean? In this case, it means "...the Court finds that the Government's extensive involvement in dreaming up this fanciful scheme-including the arbitrary amount of drugs and illusory need for weapons and extra associates-transcends the bounds of due process and renders the Government's actions outrageous."

Lesson Learned:

It's one thing to infiltrate a criminal organization; it's quite another to invent a criminal scheme out of whole cloth. This one just didn't smell right and went too far. As the court wrote, "The United States Supreme Court has drawn a line between infiltrating an ongoing criminal enterprise on one hand and manufacturing crime on the other". It noted, "But for the undercover agent's imagination in this case there would be no crime". In my opinion, this can be said for many reverse-sting operations. Unsuspecting individuals are preyed upon by cops and ensnared into schemes they would never have engaged in, but for the government's conduct. So if you find yourself caught in one of these government-created fake crimes, give me a call.

Cops love reverse stings; these are especially popular:

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