outrageous government conduct defense in Montana

2026The outrageous government conduct defense is limited to “extreme cases in which the government has essentially manufactured the crime or has generated new crimes merely for the sake of pressing criminal charges against the defendant.” Williams-Rusch, 279 Mont. at 445 , 928 P.2d at 174 (citations omitted). ¶26 In Williams-Rusch, the defendant challenged her conviction on the basis law enforcement viewing home videos depicting private sexual activity seized during an investigation into a marijuana grow operation constituted outrageous government conduct.

2026The outrageous government conduct defense is limited to “extreme cases in which the government has essentially manufactured the crime or has generated new crimes merely for the sake of pressing criminal charges against the defendant.” Williams-Rusch, 279 Mont. at 445 , 928 P.2d at 174 (citations omitted). ¶26 In Williams-Rusch, the defendant challenged her conviction on the basis law enforcement viewing home videos depicting private sexual activity seized during an investigation into a marijuana grow operation constituted outrageous government conduct.

2026Plain error review is warranted in situations where, considering the totality of the circumstances of the case, the defendant has (1) demonstrated the “claimed error implicates a fundamental right and (2) firmly convinced this Court that the failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled 10 the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” Favel, ¶ 23 (quotation omitted). ¶25 The doctrine of outrageous government conduct applies to “a situation in which the conduct

2026Plain error review is warranted in situations where, considering the totality of the circumstances of the case, the defendant has (1) demonstrated the “claimed error implicates a fundamental right and (2) firmly convinced this Court that the failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled 10 the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” Favel, ¶ 23 (quotation omitted). ¶25 The doctrine of outrageous government conduct applies to “a situation in which the conduct

1996Bogart, 783 F.2d at 1433 (this opinion was later vacated and remanded when one of the parties, Wingender, petitioned for rehearing on the basis that the government had targeted him along with Bogart, thus giving Win-gender standing to raise an outrageous government conduct claim); United States v. Emmert (9th Cir. 1987), 829 F.2d 805 (holding that co-defendant lacked standing to object to the government’s activities in this case since he was never an actual target of the investigation).

1996Bogart, 783 F.2d at 1433 (this opinion was later vacated and remanded when one of the parties, Wingender, petitioned for rehearing on the basis that the government had targeted him along with Bogart, thus giving Wingender standing to raise an outrageous government conduct claim); United States v. Emmert (9th Cir.1987), 829 F.2d 805 (holding that co-defendant lacked standing to object to the government's activities in this case since he was never an actual target of the investigation).

1999State v. Williams-Rusch (1996), 279 Mont. 437, 445 , 928 P.2d 169, 174 (citing State v. DeAngelo (Or. 1992), 830 P.2d 630, 632-33 ; United States v. Stenberg (9th Cir. 1986), 803 F.2d 422, 429 ; United States v. Bogart (9th Cir. 1986), 783 F.2d 1428, 1436 , vacated on other grounds sub nom.

1996State v. DeAngelo (Or.App. 1992), 830 P.2d 630, 632-33 (citing State v. McArdle/Harrelson (Or.App. 1988), 754 P.2d 918 ); United States v. Stenberg (9th Cir. 1986), 803 F.2d 422 ; United States v. Bogart (9th Cir. 1986), 783 F.2d 1428 vacated on other grounds sub nom.

1999State v. Williams-Rusch (1996), 279 Mont. 437, 445 , 928 P.2d 169, 174 (citing State v. DeAngelo (Or. 1992), 830 P.2d 630, 632-33 ; United States v. Stenberg (9th Cir. 1986), 803 F.2d 422, 429 ; United States v. Bogart (9th Cir. 1986), 783 F.2d 1428, 1436 , vacated on other grounds sub nom.

1996State v. DeAngelo (Or.App. 1992), 830 P.2d 630, 632-33 (citing State v. McArdle/Harrelson (Or.App. 1988), 754 P.2d 918 ); United States v. Stenberg (9th Cir. 1986), 803 F.2d 422 ; United States v. Bogart (9th Cir. 1986), 783 F.2d 1428 vacated on other grounds sub nom.

2012See U.S. v. Tucker, 28 F.3d 1420, 1428 (6th Cir. 1994) (reasoning that outrageous government conduct analysis violates separation of powers because it allows the Judicial Branch to infringe on the Executive Branch’s zone of responsibility); U.S. v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995) (reasoning that “outrageousness” is a nonjudiciable political question that invites judges not to apply legal rules but to instead determine whether the “government is violating the community’s moral standards.”).

2012See U.S. v. Tucker, 28 F.3d 1420, 1428 (6th Cir. 1994) (reasoning that outrageous government conduct analysis violates separation of powers because it allows the Judicial Branch to infringe on the Executive Branch’s zone of responsibility); U.S. v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995) (reasoning that “outrageousness” is a nonjudiciable political question that invites judges not to apply legal rules but to instead determine whether the “government is violating the community’s moral standards.”).

2012Rochin v. Cal., 342 U.S. 165, 172 , 72 S. Ct. 205, 209-10 (1952); Russell, 411 U.S. at 431-32 , 93 S. Ct. at 1643 .

2012Rochin v. Cal., 342 U.S. 165, 172 , 72 S. Ct. 205, 209-10 (1952); Russell, 411 U.S. at 431-32 , 93 S. Ct. at 1643 .

2012U.S. v. Simpson, 813 F.2d 1462, 1465 (9th Cir. 1987). 8 Out of the hundreds of cases in which the defendant asserted the outrageous government conduct defense, “[i]t appears that the defense has only been raised successfully once in the Ninth Circuit, in Greene v. United States, 454 F.2d 783 (9th Cir. 1971).” U.S. v. Simpson, 2010 WL 1611483 , *6 (D.

2012If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law. *394 Hampton, 425 U.S. at 490 , 96 S. Ct. at 1650 .

2012If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law. *394 Hampton, 425 U.S. at 490 , 96 S. Ct. at 1650 .

2012The defense has thus survived in the jurisprudence of the United States Supreme Court on this tenuous footing, and the lower courts have been called upon to flesh out what actions constitute “outrageous government conduct.” 7 ¶21 Drawing upon Rochin, Russell, and Justice Powell’s concurrence in Hampton , the Ninth Circuit Court of Appeals formulated an outrageous government conduct defense that “[pjrosecution is barred for violation of due process only when the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” U.S. v. Garza-Juarez, 992

2012See Archer, 486 F.2d at 676-77 .

1999State v. Briner (1992), 253 Mont. 158, 164 , 831 P.2d 1365, 1369 (quoting United States v. Ryan (9th Cir. 1976), 548 F.2d 782, 789 , cert. denied, 429 U.S. 939 , 97 S.Ct. 354 , 50 L.Ed.2d 308 ).

1999State v. Briner (1992), 253 Mont. 158, 164 , 831 P.2d 1365, 1369 (quoting United States v. Ryan (9th Cir. 1976), 548 F.2d 782, 789 , cert. denied, 429 U.S. 939 , 97 S.Ct. 354 , 50 L.Ed.2d 308 ).