United States v. Brenda Tucker and Barbara McDonald

prejudiced performance defective sel’s ease.14

Bryant’s

Ill REVERSE forgoing reasons

For the for a district court to the REMAND

and omissions Moore’s of whether

determination of Strick- requirement prejudice

satisfy the Washington, 466

land 2068. America, STATES

UNITED

Plaintiff-Appellant, Barbara TUCKER

Brenda

McDonald, Defendants-

Appellees. 93-6028.

No. Appeals, Court

United Circuit.

Sixth 17, 1994. Argued March (ar- Gosnell, Atty. Asst. U.S. L. Devon July 1994. Decided Donelson, Atty. Asst. U.S. R. gued), Vivian Rehearing TN, (briefed), for Rehearing Suggestion Memphis, Aug. 1994. Denied En Banc Memphis, TN Massey, D. William

(briefed), Tucker. Brenda Brooks, Public of Federal Office C. Robert (argued W.D.Tenn., TN Defender, Memphis, briefed), McDonald. for Barbara SUHRHEINRICH, MARTIN, Before: Judges. SILER, Circuit SUHRHEINRICH, Judge, Circuit court, in which opinion delivered newly discovered claims of established that well argues Biyant also guilt, evidence, petitioner's casting on the doubt newly established evidence heard discovered corpus.” habeas cognizable in federal "ac supported his claim of his alibi Supreme has affirmed Id. at 1034. argues Biyant that the district tual innocence.” decision, actual in stating “[c]laims our holding his actual innocence court erred in newly evidence discovered based on nocence In Herrera provided basis for relief. claim Collins, no ground for feder Cir.1992), held to state never been have we consid Collins, Herrera v. relief....” al habeas newly discovered affidavits two ered whether - U.S. -, -, L.Ed.2d. actual innocence petitioner's supported claim Thus, merit. (1993). Biyant’s claim is without "is it We capital murder in a case. 1421 stamps MARTIN, willing buy to the below face people joined. SILER, Judge, Circuit secretly the 1429-30), a and record transactions. delivered value Judge (pp. Circuit concurring in the result. opinion separate In Hancock called de- November Tucker, SUHRHEINRICH, Judge. than ten a friend of more Circuit fendant in years. Claiming that she was dire finan- pur indicted were Defendants need, Tucker that cial Hancock told she was abetting pur aiding chasing, and family’s stamps going to to sell her food have of, of 7 stamps in violation U.S.C. food chase provide “proper in order to Christmas” 2024(b)(1). to dismiss moved § Defendants resisting, first Tucker her children. After indictment, claiming govern stamps Hancock finally purchased the when to inducing in conduct defendants ment’s beauty appeared later at her salon dressed “outrageous” crimes was so their commit suggesting a manner her financial distress. rights. The their due that it violated asked who else Tucker When Hancock magis matter to a district court referred might buy stamps, Tucker sent thought some hearings, findings evidentiary judge for trate McDonald, one of Tucker’s em- Hancock to magistrate’s re The recommendations. purchased ployees. McDonald also food dismissal, the district port recommended listening stamps Hancock after to her from accepted recommendation and this need. tales of ill-health financial § pursuant to 18 U.S.C. government, binding author find no appeals. Because magistrate judge’s Report accepting authorizing to this court ity requiring or even Recommendation, the district court stat- purely ed: ease, we decline government’s conduct point in our I don’t think we are at of a “due assertion to do so. Defendants’ history criminal where the upon such an assess based process” defense sympa- into targeting needs to lower itself is, view, nothing than a more in our ment not other- ploys thetic on citizens are and, accordingly, we claim of engaging criminal con- suspected wise trial. and REMAND for REVERSE stamp trafficking] is not ... [Food duct govern- such a terrible offense that I. Facts view, ment, my permitted to should be a “re arose out of Defendants’ indictment totality of the facts agents use under ie., “the operation in sting,” verse [C]ertainly no reason ... there is this case [contraband], up set police pose as sellers undercov- why government cannot use carefully buyers under deals would-be agents, pay cannot undercover er those conditions, purchas and arrest controlled agents agents, cannot have undercover following Owen v. Wain sale.” ers sham friends, ploys. untrue cannot use deal with (11th Cir.1986), wright, things individually are certain- All of those denied, cert. investigation. But techniques for ly useful (1987). operative totality with they employed when case, Hancock, hired Unit was Linda suspected of are not otherwise people who help Department Agriculture ed States crime, me that the it seems to engaging been people “catch ... a lot had concluded, conduct, Magistrate as the stamp] system.” Hancock abusing the [food boundary. constitutional] crosses [the sorts, keeping a “commission” of worked on 169-72). (J.A. at money from her sale half the collected de court’s dismissal the district she We review stamps. not told food She was whom Leja, 563 F.2d United States just find novo.1 See approach, that she should novo, findings factual de findings defense is reviewed magistrate judge’s 1. Several of the clearly accepted to be unless found deception must be relating em amount of fact Hart, 963 F.2d erroneous. See United operative case ployed by the undercover Here, Cir.1992). is no there magistrate judge re hotly disputed. The findings. judge's magistrate reject basis disputes these in favor of defendants solved Taylor, 956 F.2d States v. credibility See United on the basis of witnesses. banc) (lower (6th Cir.) (en find court's factual sufficiency legal While the defendants' entrap- “objective” approach rejeeted the (6th Cir.1977), 244, 245-46 ment, stating: (1978). en- [,Sorrells establish ] Sherman relatively defense. limited

trapment authority the rooted, of in Defense Process” It is “Due II. The prosecutions to dismiss Judicial Branch may, in- argue that this Defendants law ‘overzealous have been it to feels what objec- independent, must, an undertake deed notion that enforcement,’ instead but methods government’s of the tive assessment criminal have intended Congress could to be and, them if we find case com- who has a defendant punishment for deci- court’s “outrageous,” affirm proscribed of a all the elements mitted engaging in Before dismiss. to sion them to commit was induced offense but con- labeling suspect process highly by the Government. government of our co-equal branch of a duct 435, (emphasis add- at 1644 at 93 S.Ct. outrageous,” “not “outrageous” or either as ed).2 precisely compelled to determine are we so. authority would do absolutely therefore, upon what it was point, To defendant, predisposition whose that

clear proved Entrapment was crime particular A. to commit doubt, defend could not a reasonable beyond analysis the so-called Any on basis against prosecution view, the law must, begin with our in defense to commit him induced first Supreme Court The entrapment. strong the inducement crime, how no matter in Sorrells entrapment defense recognized an government’s conduct. “outrageous” the or 210, 435, States, 53 S.Ct. 287 U.S. v. United so, (1932). doing the Court In 413 77 L.Ed. “Outrageous Conduct” B. authority to as split of deep resolved Russell, argued “objec- the defendant defense was of the the focus whether conduct), on founded entrapment should be government’s (looking defense to tive” congres- than (looking principles the defendant’s rather “subjective” constitutional govern- argued that Court, siding squarely He intent. The sional predisposition). i.e., crime, creating his “de- theory, held that a involvement subjective ment’s inducement, was so degree acquittal by reason means and [who] seeks fendant appro- prosecution complain of an a criminal great “that entrapment ... cannot principles own the fundamental inquiry into his violates searching [crime] and priate to commit bearing upon predisposition his process,” predisposition Russell, U.S. 451, notwithstanding. 411 53 S.Ct. at crime at issue.” Id. 430, The defendant at 1642. to revital- rejected an invitation The Court exclusionary that, just as with argued “objective” entrapment defense an ize States, 232 v. United created in Weeks rule 369, States, 78 356 U.S. v. United Sherman (1914), 341, 383, L.Ed. 652 34 58 S.Ct. U.S. (1958), holding S.Ct. Ohio, S.Ct. Mapp v. ... between the “line entrapment was (1961), dismissal was 6 L.Ed.2d trap unwary and the innocent trap for the police deterring future means appropriate Id. at unwary criminal.” for the misconduct. Again, rejected argument, soundly Russell, 411 U.S. United States v. ... entrapment stating that “the the Court 36 L.Ed.2d Frankfurter, Doug- (Justices credibility senters las, Sherman upon expressly evalua ings, tions, based if Brennan) concurring review), and the beyond appellate Harlan and Roberts, -, (Justices Brandéis Justices Sorrells - (1992). “objective” Stone) support ill-fated defense. Stewart, (Justices Russell in' 2. The dissenters Brennan, joined dis- Douglas) Marshall States, 484, 489, 96 S.Ct. judiciary 425 U.S. federal give intended was not opinion), 1649-50, (plurality veto over law enforce- foot’ a ‘chancellor’s rejected Rehnquist the defendant’s Justice approve.” of which it did practices ment process” defense i?MsseZl-inspired, “due Russell, at 1644. permitting such an ground that laws Rather, of the federal the “execution conduct, primarily is confided under our Constitution Government, ignoring predisposition, while the defendant’s Branch of the Executive directly contrary to our state statu- “would run subject applicable constitutional ” Rehnquist .... Justice ment Russell judicially fashioned and to tory limitations elaborated: Id. Be- those limitations.” rules to enforce a con- lacks the defense of

cause the Due Process Clause The limitations of foundation, rejected the the Court stitutional play come into the Fifth Amendment Mapp on analogy to Weeks defendant’s activity only when the Government in that, Fourth Amend- unlike the ground protected right of some question violates cases, “the Govern- in those ment violations If the result of the the Defendant.... independent no conduct here violated ment’s activity “implant in is to governmental Id. right respondent.” constitutional disposition person the mind of an innocent 430, at 1642. 93 S.Ct. at offense and induce alleged to commit the commission_,” Sorrells, supra however, Court, to note the its on went The 212-13], at the defen- [53 at U.S. following: entrap- by the defense of protected dant is presented with may day be some While illegal police engage in If the activi- ment. of law in the conduct situation which a beyond the ty defendant in concert a outrageous that agents is so enforcement lies, remedy scope of their duties absolutely process principles would due culpable defendant, freeing equally in judicial invoking from bar police prosecuting the under the in but conviction, Ro a processes to obtain cf. provisions of state or federal applicable California, [72 342 U.S. chin law. 205, the instant case L.Ed. 183] The law distinctly that breed.... not of is added). (emphasis 96 S.Ct. at 1650 Id. at stops far short here enforcement Thus, remedy criminal defen- of the “[t]he fairness, violating that ‘fundamental respect of acts of Government dant with justice,’ sense of shocking to the universal concluded, Rehnquist “lies agents,” Justice by the Due Process Clause mandated entrapment.” Id. at solely in the defense Amendment. Fifth at 96 S.Ct. 431-32, Russell, at 1643. at 93 S.Ct. 411 U.S. of his Rus- Rehnquist’s recantation Justice uttered, Russell dicta was Since majority dicta, however, gain failed sell hundred times than two cited more been Powell, Hampton. Blackmun in Justices solely based authority for a defense Russell, Rehnquist in joined Justice who that, although say separately to wrote in Russell Thus, the Court’s dicta conduct. Hampton did not war- Russell and facts of majority very which spawned they process, dismissal under rant sought to foreclose. in that case of Justices analysis that an other “unwilling to conclude predisposition would nev- limited to inconsistency of than one Recognizing the internal then-justice princi- Justice) (now under due appropriate er be Russell, Chief at at 96 S.Ct. Hampton, 425 U.S. ples.” in the decision penned Rehnquist, who had J., judg- (Powell, concurring in the “maybe 1651-52 Russell, sought its to recant soon ment).3 v. United Hampton someday” dicta. ton, n. 5. however, S.Ct. at 1652 concede, n. Powell did 3. Justice Powell, writing majority case,” “ultimately Court, Justice appropriate "in an Payner, 447 U.S. Court in United States Rehnquist’s conclusion might reach” Justice (discussed doctrine for a source “no [constitutional] there position he had infra), Hamp- seemed abandon in crime.” limiting police involvement foot” “chancellor’s Marshall, nothing than more Brennan, Stewart Justices had Supreme Court against which theory veto “objective” adhering to the steadfastly Russell, 411 (quoting in Russell. warned had failed become which at Russell, at Sorrells, dis- Sherman in law Rehnquist’s plurality from Justice sented rejected the “due Thus, Leja, in to state part, Hampton, in in opinion grounds very broad defense on indictments dismiss be able to courts a consti- that, the absence of further au- enforcement lawof the conduct “where authority violation, no had the courts tutional offensive, though even sufficiently thorities means prosecution as a defendant’s to bar a de- to invoke such entitled the individuals misconduct. deterring law enforcement Hampton, might predisposed.” be fense acknowledge refused panel, (Brennan, J., analysis seemed rule to per se which dissenting). Instead, language reminiscent to lead. Justices, two Russell, five Thus, Hampton, Leja Rehnquist’s dicta Justice dissent, open the “ob- left three dicta and to observe: panel went on Rehn- Justice door jective” defense Friendly in United Judge Like note, Russell. We unlocked quist had Cir.1973) ], (2d Archer, 670 F.2d [486 Rehnquist’s however, just as Justice that Hampton,4 we deter- Powell like Justice dicta, were so too were in Russell comments long as the say “never” never to mine Powell (and of Justices those his comments rights ex- of individual potential for abuse Blackmun) Hampton. action. governmental ists Leja, F.2d 247 563 Authority Sixth Circuit C. Leja, cases since than dozen In more two process” a “due first addressed This court every rejected “on the facts” 563 this circuit Leja, v. States in United claim defense process” so-called “due denied, attempt to invoke the Cir.1977), (6th cert. 434 244 F.2d Barger, See, v. (1978). e.g., States United defense. 1263, L.Ed.2d 780 1074, 55 98 S.Ct. (6th Cir.1991); 359, United 363-64 931 F.2d opinions various reviewing the After (6th 1105, Qaoud, F.2d 1110-11 777 States v. to issue court

Hampton, the “coneeiveffl 1098, denied, 106 Cir.1985), 475 U.S. cert. activity ... so governmental be whether (1986); United 1499, 899 concepts fundamental fairness offends our Norton, 1072, 1076 F.2d v. 700 extraordinary employment of States justify the as to 910, denied, 103 S.Ct. Cir.), 461 U.S. cert. Id. at curb it.” judicial to power (1983); v. 1885, United States L.Ed.2d 814 pro 76 “due rejected the defendant’s court then (6th Cir.1980). 1207, Brown, 1213 635 F.2d defense, if the reasoning that absence cess” authority therefore, view, there no In statutory and our merely a predisposition govern that holds defense, in this circuit which “it is difficult not a constitutional inducing the commission grounds ment’s prohibit on constitutional indeed to - bar crime, enough, can if “outrageous” [who] defendants ... prosecution de predisposed of an prosecution otherwise acts.” to commit the clearly predisposed Process under the Due Clause employ to fendant declined The court also Id. at 247. just Leja and the cases Amendment. in Fifth powers” to dismiss “supervisory nothing than “assume” cited do more dictment, in the holding that do so absence to “holding” defense while of such existence would amount violation of a constitutional position in United Powell tice abandoned Hampton he held sanctions when taken in 727, 9, only Payner, 737 n. Process Clause v. 447 justified under the Due are States See, (1980). 9, “violates governmental 2439, misconduct where the 468 2447 n. 65 right Id. at the defendant.” protected addition, some at least one court supra at 3. In note Hamp- (quoting n. 9 n. 2447 737 Payner question the called into has noted that ton, (plurality U.S. at Archer, Leja validity upon continued J.)). (Rehnquist, opinion) Santana, 6 panel United States v. also relied. See (1st Cir. F.3d upon Leja panel’s Justice Powell's 4. The reliance Jus Hampton proved unfounded when dicta in (3d Cir.1975), been limited which had present apply under it would other, recent, more Third Cir Hampton this court is panel of “one Because facts. Beverly, v. published United States previously opinions. cuit See in a by dicta bound Cir.1983) (3d Burroughs, (citing v. United F.2d opinion,” United States panel (3d (6th Cir.1998), Jannotti, hold that the n. 17 we 673 F.2d States Cir.1982) (en banc), “due asserted of defendants’ legal existence (1982)). open question in is an process” defense free to address Twigg per which we circuit do consider Accordingly, we first instance. a “due whether or not on the issue of suasive recognized. be process” Authority Circuits’ D. Other have, like our appeals courts of The other binding no there is Having concluded circuit, doggedly applied the Russell own defendants’ asserted authority recognizing fact dicta; rejecting numerous analyzing and defense, to our look sister governmental “over- in search of patterns date, authority. To persuasive circuits for “shocks the conscience” reaching” which has em only appellate one In recent fairness.”6 “fundamental violates prosecution.5 bar ployed Russell increasingly has been years, this defense (3d Twigg, F.2d 373 United ridicule, subjected see United States agent suggested to Cir.1978), government Cir.1993) (de- (1st Santana, 3-4 6 F.3d drug they up a manu set defendant objective en- child of the “deathbed fense is a site for facturing operation, located long since a doctrine discarded trapment, and the know- the materials plant, supplied courts”), at least circuit one the federal busi “go into well as funds how as it be expressly advocated that judge has The court reversed at 380-81. ness.” Id. Miller, v. 891 States See United abandoned. for manufactur convictions the defendant’s Cir.1989) (Easter- (7th 1265, 1272-73 F.2d stating drugs, “[fundamental ing the brook, J., concurring).7 permit us to countenance fairness does by law enforcement officials such actions for any of doctrinal basis The lack sound by them a crime so fomented prosecution for view, has, led to in our process” defense Id. 381. will be barred.” appeals unnecessary in the courts of conflict where, although the courts all-but-unani holding note, has We results, contradictory stan in their mous on by the Third Circuit disavowed been Compare, e.g., United have evolved. re dards improperly Twigg ground court (2d Chin, Cir. F.2d 398 West, v. 934 States 511 F.2d 1083 v. States lied on United Bogart, 783 F.2d v. and United States close. See United have come 5. Two other courts Cir.) Cir.) (9th must be (9th (government conduct 1428 1438 Bogart, F.2d v. 783 States inducement, government must have govern- factfinding regarding the more than (remanding for solely conduct), grounds part "manufactured" crime on other vacated in “created” ment's charges), generating Wingender, purpose 790 F.2d criminal v. of United States for the sub nom. Lard, Cir.1986); (9th grounds v. 734 Unit part States sub nom. United on other 802 vacated Cir.1984) (9th (8th (stating, an Wingender, as 802 Cir. 1296 790 F.2d F.2d v. ed States conviction, reversing ground alternative being suffi- "approached” government conduct process de- outrageous ciently to sustain validity analysis 7.Judge of the Easterbrook's fense). concludes: the "due shove, reject push comes to should When completely appeals not been have 6. The courts of go free criminal that the must the contention process" de regarding "due the so-called docile fense, Why was too zealous. the constable two efforts to There been have however. litigants’ Why hopes? waste false defense, raise though neither has been restrict rejecting searching on the for and judges’ time applied its own circuit consistently within ought exist a matter as defenses that facts by any adopted court expressly been neither has things do.... Everyone has better of law? United circuit. See States its own outside a rule I it” is not (D.C.Cir.) it when see "I know & n. 3 Kelly, 707 F.2d kind, Process of the Due alone a let command (defense physical or extreme be limited to denied, defendant), Clause. psychological abuse of Miller, F.2d at 1272-74. unconstitu power would be supervisory 1991) conduct vio (“whether investigative Id. powers. separation of process can tional violation right to due lates defendant’s gov degree to which The court stated: depend on induc responsible for was action ernmental prejudice with Dismissing an indictment law”) (empha to break the ing the defendant charging prosecutor’s encroaches Gamble, added) States with United sis wag-of- judicial substituting a authority, Cir.1984) (“defendant F.2d nod. Such prosecutorial the-finger for the ... Due Process Clause may not invoke only in cases permitted will be an intrusion acts, how matter no unless prosecutorial misconduct.... flagrant inducing the defen a role outrageous, had fairly attrib- was neither here The conduct (em crime”) in the involved dant to become sufficiently nor prosecutor utable to phasis prejudice. justify dismissal flagrant to separa Moreover, potential violation added). Thus, Ninth Cir- Id. “defense,” powers inherent tion that, Simpson show opinions cuit’s two subjectivity to unavoidable coupled with the process” de- the “due raise when defendants objective assessment any purportedly which illusory and fense, “wrong” it is the devolve, no has must “outrageousness” is, fact, uncon- “remedy” sought which unseemly apparent as been where stitutional. appeals struggle between court power United the district E. Conclusion (9th Cir.1987), cert. Simpson, 813 sum, binding Supreme Court no there is solely based authority recognizing a defense (1987). There, Ninth Cir govern- of the upon an Appeals reversed cuit Court of inducing the commission ment’s conduct indictment, holding dismissal of court’s Court, indi- Nonbinding dicta of the crimes. so “was not government’s conduct8 defense, may cating be such that there in justify dismissal outrageous as to upon rea- by its author based recanted been grounds.” on due dictment majority adopted soning later pro further The court remanded 9,n. Payner, 447 opinion. Id. at ceedings with” “consistent Moreover, this court has n. 9. S.Ct. 1473. availability defense of this recognized the remand, court, promptly on The district because, every in which ease only in dicta again, time as this indictment dismissed the raised, the the issue has been powers.” The “supervisory an exercise of have been held not to has been conduct again reversed. United Ninth Circuit only squarely hold- “outrageous.” The case 1088, Cir. Simpson, 927 F.2d gov- the ing an that, although the The court may case particular in a ernment’s to deter may be invoked supervisory power regard for the defen- without prosecution bar activity, justification a was illegal such future greatly criti- has been predisposition dant’s no viola there been inapplicable had and, recently, disa- cized, distinguished often process rights due tion of the defendant’s circuit. in its vowed own activities of illegal the none of and because request at the done the informant were Analysis III. govern in furtherance government or the binding precedent lack that, Based also held Id. The court mental aims. the Sixth Supreme either Court from the law government if the had broken even Circuit, panel the view (or, due presumably, violated defendant’s process” recognize the “due required not the court’s under process rights), dismissal defendant, and sleeping that she was government a false affida- Simpson, 8. used though government prostitute “manipulated” a even get taps, used that vit to informant wire fugitive continuing from Canadi- drug addict and a heroin and en- who was to use she knew was informant, becoming con- into an Simpson, an authorities at 1465. prostitution. 813 F.2d gage in learning using after that informant even tinued Leja, it. presented to See strong defense Moreover, cess” three there are defense. 247. F.2d at a defense concluding that such reasons (1) con- government not exist: simply does Authority No Has B. The District Court a commit a defendant induces duct which These Indictment on to Dismiss an not “outrageous,” does crime, if labelled even Grounds right of constitutional that defendant’s violate Payner, (2) lacked court In United States the district process; due gov- indictment authority to dismiss con the defendant’s court aside set where no violation misconduct ernmental illegally ruling that evidence after viction right has been independent constitutional party’s briefcase could seized from third of this recognition shown; continued against the defendant. admitted not be to violate as an invitation “defense” stands 730, 100 Acknowledging the 2443. at in- at powers, separation of constitutional Amend on the Fourth “standing” Exec- limitations province only on the truding rule, the district exclusionary ment Branch as Legislative Branch utive but on the the evidence excluded nevertheless well. supervisory process and its grounds of due 730-31, at 2443-44. powers. Id. at Not Does A. Inducement that exclu ground affirmed on This court Due Process Violate of the court’s proper exercise sion was reach powers and did not supervisory underlying the inconsistency logical at at question. Id. appar- process” of a “due assertion Supreme Court reversed. 2444. The con- restating the defendants’ simply in ent be “funda- it would They argue that tention. requirement held that The Court crime, them of to convict mentally unfair” the Fourth Amendment “standing” vis-a-vis they assuming predisposed were even represented a balance exclusionary rule crime, outrageous because of the commit i.e., interests, of soci- the interest competing inducing their conduct of interest of convicting criminals ety above, the Su- As noted actions. Id. at deterring illegal searches. society in the basis for held that preme Court balance, the 2445. This 100 S.Ct. at in- congressional lies entrapment defense case-by-case held, subject to was Due Process and, specifically, not tent by the lower courts second-guessing Russell, Amendment. Fifth Clause pow- “supervisory exercising their guise of 430-31, From 93 S.Ct. at 735-36, 2446-47. Id. at er.” that, Congress if certainly follow it must defendant held that The Court also defense, even reject entrapment chal- a “due prevail under could to commit induced defendants who because, lenge could be predisposed were not crime and who brief- that the unlawful if assume even we If process. violating due convicted without as to offend outrageous so case search was convicting by process not offended is “ decency and of ‘cannons fundamental it priori is predisposed, a are not those who ” California, 342 U.S. fairness,’ Rochin v. are convicting who by those offended not 183] L.Ed. [72 predisposed. York, 324 (1952), v. New quoting Malinski 781, 789, L.Ed. [65 U.S. inconsistency Justice which This is the J.), Frankfurter, (opinion when, Hamp- 1029] sought to avoid Rehnquist limitations “[t]he fact remains pro- ton, “due rejected defendant’s he play into ... come Due Process Clause of induce- that claims cess” defense and activity ques- government only otherwise, when ana- ment, must be outrageous or right of the protected violates some Hamp- tion entrapment. law of lyzed under States, su- defendant,” Hampton v. United It is ton, 1650. 96 S.Ct. at 425 U.S. at S.Ct., 1650] at U.S., [96 pra, inconsistency prompted which also opinion). (plurality pro- “due reject outright the first court to line, by Congress and ar- This established 2447 n. 9. This S.Ct. at n. Id. at 737 beginning by Supreme Court “objective” ticulated any as- rejecting clear statement Sorrells, on a subject to circumvention conduct, is not we sessment case-by-case The mere invocation basis. believe, modicum lays to rest whatever give the process” does not phrase Hampton. may have survived dicta Russell’s “oversight” its own license to conduct courts discussed, present defendants As has been practices. no law police Where a violation not demonstrated case have constitu- of the defendants’ and none broken Moreover, rights. the Su- their due violated, court’s rights have been tional decision, majority Court, repeated by preme Congress has di- remain where focus must the desire between held that the balance i.e., subjective it, the defendants’ rected and the need government inducement to curb predisposition. predisposi- convict criminals drawn predispo Finally, entrapment and tion, The district “outrageousness.” jury, ordinarily questions for the sition case flaunts that court’s dismissal States, 58, 63, Mathews United balance. (1988), 883, 887, 99 L.Ed.2d by by Congress and articulated line drawn “Due Process” Defense Violates C. jury, as Supreme ensures that Court Separation of Powers arbitrary against law “defense the traditional Louisiana, enforcement,” Duncan v. “outrageous” as difficult to label It is not 1444, 1451, 145, 156, Branch that of the Executive check on operates as the ultimate more crime than or induces “creates” power. abuses of executive society already contend. must always discussed, therefore, the issue. The issue has just That is not For the reasons conduct and to do about this whose defense been: What hold that a defendant we is, do government by congressional in inducement which branch sounds primar- precedent, Branch limited Clearly, Supreme the Executive it? intent key for, to the responsible and answerable defense of ily to the addition, may for, Defendants predisposition. conduct. its own element electorate couching by by “ap- circumvent this restriction Branch is constrained the Executive process” or statutory limita- defense in terms of “due their plicable constitutional Thus, reject as a “supervisory powers.” we judicially rules to [by] fashioned tions Russell, theory upon which defen- matter of law the limitations.” enforce those without based their motion dismiss dants 93 S.Ct. at facts of their case regard particular to the inducement, regard to acts of With reaching the issue of and without whether implicitly curbed the Legislative Branch has be characterized properly those facts can by intending, implied Branch as Executive “outrageous.” as statute, that no convic part each criminal induced may against tion be had one who was Entrapment a Matter of Law IV. a crime unless government to commit nothing have said above To ensure that proves, beyond a reasonable opinion having expressed an as to doubt, taken as predisposed to that the defendant was entrapment, of we address defendants’ claim crime. v. United commit that Jacobson — The defendants’ motions to States, U.S. -, -, that issue now. (1992). Thus, process” the “due 1540, 118 dismiss raise both a defen To entrapment a matter of law. as subjective predisposition marks the dant’s ground on the before trial society’s preventing in warrant dismissal point interest at which entrapped as a mat- by defendant was overreaching outweighed that the governmental law, held that “the this court has punishing those who ter society’s interest a demonstrate undisputed evidence must crimes, objective character of commit not the predisposition.” clear’ absence of ‘patently the conduct. (6th by Harris, prior Sixth Circuit decisions F.3d is bound United States Cir.1993) recognizing “outrageous the existence of an Barger, 931 F.2d at (quoting defense, government under the Due conduct” case, although not it was present In the Amendment, the Process Clause of Fifth of the reach the issue because necessary to result, prosecution. I in the criminal concur defense, the the “due disposition of nevertheless, the government’s con- of the judge that because magistrate stated present outrageous. in the case was not duct in this “willingness participate defendants’ scheme, likely the that defendants it is observes, majority correctly As the this entrap- to mount a successful would be able more than two Circuit decided dozen 69.) (J.A. at The district ment defense.” involving “outrageous an cases finding noted that “but for the court further defense, rejecting it in each in- conduct” pro- the Magistrate [regarding of the In facts. stance the United States this and the concurrence of defense] cess” (6th Cir.1991), Barger, 931 F.2d 363-64 finding, it is doubtful that reiterated four factors that must be we prevent you entrapment would defense of determining governmen- weighed in whether guilty on those offenses.” being from found outrageous: tal conduct is 172.) concluded, (J.A. The (1) police the the need for entrapment something “is by type activity in- criminal shown jury have had to determine.” a would (2) volved, impetus for the scheme or preexisted enterprise criminal whether the involvement, (3) police and the control the district court

We believe en- government exerted over the criminal magistrate judge were correct to conclude terprise, impact police case question that the activity on the commission of the crime. jury. The evidence left to should be us, light most taken the record before Payne, Barger and United States v. “un government, is neither favorable to Cir.), de 1231-33 “patently regarding disputed” nor clear” — -, nied, 306, 121 predisposed these defendants were whether — U.S. -, L.Ed.2d and cert. Therefore, ques to commit their crimes. our by jury. tion must be resolved opinions involving this published recent most defense, analysis lengthy in a engaged V. each factor under circumstances the defen- district court’s dismissal analysis particular case. This was undertak is, for the reasons dis- dants’ indictment instances, en, separate in a section of in both above, case is cussed REVERSED this solely opinion to the briefed and devoted REMANDED trial. outrageous government con argued issue of duct, simply passing a statement JR., MARTIN, Judge, Circuit F. BOYCE commentary. eursory, Ac superfluous or concurring in the result. majority’s cordingly, agree I cannot treatment repeated of this agree principle I with much of the characterization While clear to me that analysis, panel as dicta.1 It seems majority’s I believe analogy, suggestion. com- Dictionary fol- or Statements and Law defines dictum as Black's concerning opinion lows: some ments in an rule legal proposition necessarily generally in- as an law or The word is used abbreviated dictum, way;” by "a remark form of obiter determination of volved nor essential is, dicta, or made an observation remark are obiter lack case hand cause, judge pronouncing opinion upon opinions adjudication. force of an Dicta rule, concerning principle, application some or embody judge or do not the resolution law, question suggested solution of court, and made without determination bar, by necessarily the case at but not involved point, argument, consideration of full determination; in the case or essential to professed deliberate determinations not the by statement the law enunciated judge himself. illustration, merely by argument. way Johnson, NIEVES, Al Linda Co outrageous govern- Wilfredo recognized Circuit Rush, Garcia, ronado, Bobby Rev. Jesus defense, a valid due ment conduct Boria, Barrow, Miguel Del Rafael Willie concedes, Supreme and, majority as the Lucas, Finney, Valle, D. Leon Robert L. My clearly otherwise. has not Evans, Gardner, Clay Joseph Jr., Rev. majority opinion on disagreement with Suarez, Gutierrez, Regner Jo Luis V. notwithstanding, I concur point Berrios, Santiago, Miguel seph A. issue trial on remand for Hernandez, Plaintiffs-Appel Neomi government’s con- I that the believe lants, outrageous. present case was duct in the v. ELEC BOARD OF ILLINOIS STATE COMMISSIONERS, Lani John J. TION Petrone, Richard A. gan, Theresa M. Huisman, Cowen, Lawrence Hannelore Murray, Langdon Johnson, David E. E. Rednour, T. Defen D. Neal and Wanda dants-Appellees. LEAGUE, Craig URBAN CHICAGO Allen, Collins, Mark and Nikolas C. R. Fawell, HASTERT, Harris John

Dennis J. Theodore, Plaintiffs-Appellants, Crane, Henry Porter, Philip J. M. E. v. Michel, Hyde, and Thomas Robert H. W. ELECTIONS, John J. STATE BOARD OF Ewing, Plaintiffs-Appellants, Petrone, Lanigan, M. Richard Theresa Johnson, Cowen, David A. Lawrence E. Murray, Langdon D. Neal and Wanda E. Rednour, Defendants-Appellees. T. Howard, Johnny and Ben Scott Barklow, ROSEBROOK, Daryl Amiel Ann Plaintiffs-Intervenors- Mark, Norman, Cueto, Richard Jeanelle Appellants, Babcock, Raymond Carolyn Toney, Lee Oliver, Poshard, Mat Barbara William Savala, thews, Hawkins, and Eva Gerald Plaintiffs-Appellants, OF ELEC BOARD ILLINOIS STATE COMMISSIONERS, Lani John J. TION Petrone, gan, Richard A. Theresa M. ELECTIONS, John J. STATE BOARD OF Huisman, Cowen, Hannelore Lawrence Petrone, Lanigan, M. Richard Theresa Johnson, Murray, Langdon E. David Huisman, E. Cowen, Law A. Hannelore Rednour, Murray, Johnson, T. Defen David E. D. Neal and Wanda rence E. Langdon T. Redn D. Neal and Wanda dants-Appellees. our, Defendants-Appellees. 92-1399, 92- Nos. 92-1397 HASTERT, Fawell, Harris John Dennis J. 1402 and 92-1403. Crane, Henry Porter, Philip M. J. E. Michel, Hyde, Appeals, Robert H. and Thomas W. United States Court Seventh Circuit. Ewing, Plaintiffs-Appellants, Argued Jan. 17, 1993. Decided Dec. ELECTIONS, John J. STATE BOARD OF Rehearing Opinion Granted and Petrone, Lanigan, M. Richard Theresa Amended June 1994.* Johnson, Cowen, E. David A. Lawrence Neal, Murray, Langdon T.

E. D. Wanda Huisman, Hannelore De

Rednour and

fendants-Appellees. * (em- (5th ed.1979) petition rehearing Dictionary On consideration Black's Law added) omitted). rehearing (internal suggestion en banc filed phasis citation

Case Details

Case Name: United States v. Brenda Tucker and Barbara McDonald

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 26, 1994

Citation: 28 F.3d 1420

Docket Number: 93-6028

Court Abbreviation: 6th Cir.