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​Federal Agent's Use of a Prohibited Person as a Confidential Informant to solicit purchase and possess firearm from the Defendant constitutes outrageous conduct requiring dismissal of the indictment


The first indictment charging Defendant established that a prior felony record rendered him a prohibited person and thus subject him to the federal Brady restrictions per 18 U.S.C. 922(g)(1). Ironically, the very statute used to charge Defendant equally prohibits the government's primary witness, from also possessing a firearm. Such restrictions, however, did not prevent the government's witness from attempting to possess firearms after her self-imposed and self-serving five year time. Defendant avers that it is not only outrageous for federal agents to fail to properly vet their informant, but it's even more egregious for the named informant to make excuses and assign blame for her conduct on others. The goal of the investigation should never obviate the proper procedures or protocols, neither should the end result include an excuse for the failings or short-cuts taken by federal law enforcement.
Dismissal of an indictment on the ground that the government engaged in outrageous conduct requires that defendant show that given the totality of the circumstances the government's conduct violated fundamental fairness, appealing to the universal sense of justice, safeguarded by the Due Process Clause of the Fifth Amendment. see United States v. Russell, 411 U.S. 423, 432 (1973). Outrageous government conduct occurs when the actions of law enforcement officers or informants are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32. Now as to whether defendant showed outrageous governmental conduct existed turns upon his showing of the totality of the circumstances as in no single factor controls and the government's defense “can only be invoked in the rarest and most outrageous circumstances.” United States v. Tobias, 662 F.2d at 387 (5th Cir. 1981, cert. denied, 457 U.S. 1108 (1982). Previous courts are silent as to the existence of outrageous government conduct doctrine, instead only discussing it in various dicta. See United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011).
Defendant recognizes the high hurdle that must be cleared to demonstrate such conduct. Further, there is no bright line dictating when federal law enforcement conduct crosses the line between acceptable and outrageous, so every case should be evaluated based on the particular facts. In the present case, there are two primary areas driving the concern: first, law enforcements failure to properly vet their informant's criminal history thereby allowing a convicted felon to possess a firearm; and second, the informant's failure to acknowledge their felony conviction to multiple law enforcement agencies. Had it been known, defendant avers it would have directly altered the investigation and caused law enforcement to, find an alternate informant without prohibitions, or seek proper approval to use a convicted felon in a sting operation to purchase firearms.
It is often said that the ends do not justify the means. The most destructive of ideas is that extraordinary times justify extraordinary measures. The government relies on the notion that society faces violence and social destruction so it must deal with these enemies by whatever means and that our high aims, and future historians will justify and forgive. To the contrary, defendant avers his arrest and conviction do not justify the failure by law enforcement, the lack of procedure, the shortcut to the finish line, i.e. the means of attaining it.
It tramples on our rights under the Fourth Amendment that protect us against unreasonable search and seizure. We put as much stock into the Fifth Amendment Due Process right of citizens to fundamental fairness within the executive and judicial process. Law Enforcement and their paid informants should not be free to make Machiavellian choices to abide by whatever principles they determine necessary in order to reach their goal, no matter how worthy. To allow such conduct is outrageous. The reason the means are important, maybe even more important than the ends, is because how we get to a goal is indicative of our ethics, morals, and adherence to the rule of law. Only then will respect for the process be lauded.
The combination of these circumstances rise to the level of outrageous conduct and since the misconduct was brought to the attention of the court by defendant's motion and Rule 29 motion for judgment of acquittal, it ought be considered in the context of the entire trial, as to whether the conduct may have prejudiced his substantial rights. United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982). Given the above discussion, both verdicts should be reversed.

Darick Dewayne DILLARD, Defendant-Appellant, v. UNITED STATES OF AMERICA, Plaintiff-Appellee., 2022 WL 4182811, at *10–14