Free Order on Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

Document 1072

Filed 03/26/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB-06 UNITED STATES OF AMERICA, Plaintiff, v. 6. MICHAEL SMITH, Defendant. _____________________________________________________________________ ORDER DENYING DEFENDANT'S MOTION TO DISMISS CASE ON GROUNDS OF OUTRAGEOUS CONDUCT Blackburn, J The matter before me is defendant's Motion To Dismiss Case on Grounds of Outrageous Conduct, For Discovery, and For Pretrial Evidentiary Hearing; To Suppress Evidence, and to Notice Evidence of Reverse Bad Acts [#440], filed May 25, 2005. I deny the motion both on procedural and substantive grounds. When considered as a motion to dismiss, the motion is inexplicably and inexcusably filed woefully out of time. My initial Scheduling Order [#96] was entered April 30, 2004. It required, inter alia, that motions to dismiss the indictment be filed by September 27, 2004, see Order at 2, ¶ 1, and that motions to suppress be filed by November 30, 2004, see id. at ¶ 6. Defendant did not file a motion to dismiss and did not request an extension of time to file a motion to dismiss by the stated deadline. Instead, on April 8, 2005, defendant filed a Motion For Expansion of Time To File Motions To Suppress Evidence, see [#396], in which defendant requested expressly the opportunity to file a "Motion to Suppress," see Motion [#396] at 2, by May 26, 2005,

Case 1:04-cr-00103-REB-MEH

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which motion was granted, see Minute order [#417] entered April 21, 2005. Therefore, that portion of defendant's motion seeking dismissal of the indictment and concomitant charges is ultra vires and untimely. Substantively, when considered as a motion to suppress, application of the exclusionary rule on these putative facts is impermissible and inappropriate. See United States v. Payner, 447 U.S. 727, 733-34 (1980) (Application of a suppression remedy is an improper extension of the court's supervisory powers to apply the exclusionary rule.) Substantively, when considered as a motion to dismiss , defendant's asserted facts are insufficient as a matter of law to state and circumstantiate a claim for outrageous conduct. Defendant claims that the government's outrageous conduct during the course of the investigation of this matter warrants dismissal of the Indictment. No hearing is necessary to resolve the issues presented by the motion. See United States v. Cuervelo, 949 F.2d 559, 567(10th Cir. 1991) (noting that hearing on allegations of outrageous government conduct "is the preferred course of action in cases where disputed factual issues exist") (emphasis added). However, even assuming the truth of all facts averred in the motion, it does state a viable claim for outrageous government conduct. In limited circumstances the actions of law enforcement agents may be so outrageous as to violate a defendant's right to due process under the Fifth Amendment. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960). However, the circumstances in which the defense has

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been successfully mounted are exceedingly limited. See United States v. Mosley, 965 F.2d 906, 910 & 911 (10th Cir. 1992) (characterizing outrageous conduct as "an extraordinary defense reserved for only the most egregious circumstances" and noting that "in only a small handful of those cases [in which the defense is raised] has the government's conduct actually been held to be outrageous"). To assert a viable defense under this theory, defendant must show that the government both created the crime and substantially coerced defendant to participate therein. Id. at 911; see also United States v. Diaz, 189 F.3d 1239, 1245 (10th Cir. 1999) (noting that burden is on defendant to prove outrageous government conduct), cert. denied, 120 S.Ct. 1448 (2000). Assuming arguendo the truth of all putative factual averments contained in defendant's motion, those facts do not establish either of these essential elements of the defense. There is no evidence to suggest that the government created the criminal scheme in which defendant involved himself, nor do any of the alleged facts establish that the government substantially coerced defendant's alleged participation. Rather, defendant's argument is quintessentially that the government's inaction in delaying indictment of the principal players in the scheme until March, 2003, allowed defendant to become embroiled in the scheme. Stated differently, defendant maintains that if the government had acted sooner to bring charges, he would not have had an opportunity to become involved in the scheme. The government's failure to save defendant from himself by sooner indicting others does not constitute outrageous conduct. Therefore,

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Case 1:04-cr-00103-REB-MEH

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defendant's motion should be denied without evidentiary hearing.1 THEREFORE, IT IS ORDERED that defendant's Motion To Dismiss Case on Grounds of Outrageous Conduct, For Discovery, and For Pretrial Evidentiary Hearing; To Suppress Evidence, and to Notice Evidence of Reverse Bad Acts [#440], filed May 25, 2005, is DENIED without evidentiary hearing.2 Dated March 26, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

I do not address that portion of defendant's paper that focuses on reverse bad acts ­ ostensibly im plicating Fed.R.Evid 404(b) ­ because I disposed of defendant's proposed use of reverse 404(b) evidence in m y Order Denying Defendant's Request To Present Reverse 404(b) Evidence [#1065] entered March 23, 2007. In further support of m y ruling, I approve, adopt, and incorporate the reasons stated, argum ents advanced, and authorities cited by the governm ent in its response, see Response [#449] filed June 3, 2005.
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