What is outrageous government conduct?

Although the government may infiltrate existing criminal enterprises without running afoul of the Due Process Clause of the 5th Amendment, it may not create new crimes solely to catch a particular defendant. The government engages in outrageous conduct when it, among other things, creates a criminal enterprise solely for the purpose of ensnaring an otherwise law abiding citizen in the scheme or artifice.

Outrageous government conduct (OGC) under the “creation” test.

The concept of OGC was born in 1973. In United States v. Russell, the United States Supreme Court said, “We may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government for invoking judicial processes to obtain a conviction.” 411 U.S. 423, 431-32 (1973). Such conduct, to rise to the level of OGC, must violate “fundamental fairness, shocking to the universal sense of justice.” Id. at 432. Although OGC is a pliable concept, the Ninth Circuit recognizes two situations wherein OGC is present.

First, government conduct rises to the level of OGC when the government encourages criminal conduct by engaging in brutal physical or psychological coercion. United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986), vacated on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986)(vacating only as to other defendant). Second, government conduct rises to the level of OGC when government agents “engineer and direct the criminal enterprise from start to finish” so that the “conduct constitutes, in effect, the generation by police of new crimes for the sake of pressing criminal charges against the defendant.” Bogart, 783 F.2d at 1436. See also, United States v. So, 755 F.2d 1350 (9th Cir. 1985).

In United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), the Third Circuit reversed Twigg’s conviction from charges stemming from illegal manufacture of methamphetamines because the police had created the meth lab, provided all the supplies to create the meth, and then themselves created the meth. It was constitutionally outrageous to prosecute Twigg when the government itself had created the drug scheme under which they sought to prosecute Twigg.

Outrageous government conduct under the Ninth Circuit’s 6-part test.

Another way a court may found OGC is by applying the 6-Part Green test.
The Ninth Circuit applies a 6-part test in determining whether government conduct rises to the level of outrageousness.

In Green v. United States, 454 F.2d 783, 787-787 (9th Cir. 1972), the Ninth Circuit found outrageous government conduct where the informant (1) contacted the defendant; (2) engaged in prolonged criminal activity with the defendant; (3) was substantially involved with the criminal enterprise; (4) applied pressure against the defendant; (5) established the criminal enterprise; and (6) acted as the only customer of the criminal enterprise. “None of the factors we pointed to as significant would necessarily require reversal of a conviction. In our view it is the combination that is important.” Id. at 787.