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United States v. Ammons

United States District Court, W.D. Kentucky, Louisville

September 29, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
DENNIS AMMONS DEFENDANT

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Defendant Dennis Ammons's Motion to Dismiss Count 2 of the Indictment on the grounds of outrageous government conduct. [R. 50.] Plaintiff United States of America responded. [R. 54.] Fully briefed, this matter is ripe for adjudication. For the reasons stated herein, Ammons's Motion to Dismiss [R. 50] is DENIED.

         BACKGROUND

         This matter arises out of Defendant Dennis Ammons's Motion to Dismiss Count 2 of the Indictment, which charged him with knowingly receiving child pornography, in violation of Title 18, United States Code, Sections 2252A(a)(2)(A) and 2252A(b)(1). [R. 9 at 1 (Ammons Indictment).] Ammons argues that the conduct of the Federal Bureau of Investigation (“FBI”) in investigating the website Playpen, of which he was allegedly a registered user, was so outrageous that it violated the Due Process Clause of the Constitution. [See R. 51 (Ammons Memorandum for Motion to Dismiss).] Further detail on this investigation may be found in this Court's Memorandum Opinion and Order denying Ammons's Motion to Suppress. [R. 36.]

         DISCUSSION

         The due process defense asserted by Ammons grew out of dicta in United States v. Russell, in which the Supreme Court speculated: “[W]e 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 from invoking judicial processes to obtain a conviction . . ..” 411 U.S. 423, 431-32 (1973) (citation omitted).[1]

         The Sixth Circuit acknowledged two approaches to this outrageous conduct defense. At first, the Sixth Circuit defined four factors to guide the determination of whether police conduct violated due process principles. “These factors are: (1) the need for the type of government conduct in relationship to the criminal activity; (2) the preexistence of a criminal enterprise; (3) the level of the direction or control of the criminal enterprise by the government; (4) the impact of the government activity to create the commission of the criminal activity.” United States v. Johnson, 855 F.2d 299, 304-305 (6th Cir. 1988) (citing United States v. Robinson, 763 F.2d 778, 785 (6th Cir. 1985); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir. 1983); United States v. Brown, 635 F.2d 1207, 1213 (6th Cir. 1980). “These factors are for guidance only, and therefore, the presence of each factor need not be shown.” United States v. Foster, 835 F.Supp. 360, 365 (E.D. Mich. 1993) (citing United States v. Barger, 931 F.2d 359, 363 (6th Cir. 1991)).[2]

         Fourteen years and many rejections later, the Sixth Circuit decided there was no authority to support this “outrageous conduct” defense when the defendant claims the government induced the commission of the crime: “In our view, therefore, there is no authority in this circuit which holds that the government's conduct in inducing the commission of a crime, if ‘outrageous' enough, can bar prosecution of an otherwise predisposed defendant under the Due Process Clause of the Fifth Amendment.” United States v. Tucker, 28 F.3d 1420, 1424 (6th Cir. 1994); see also United States v. Warwick, 167 F.3d 965, 974 (6th Cir. 1999) (holding that when the defense “sounds in inducement” of the commission of a crime, the Sixth Circuit has held that the defendant “cannot avail himself of the ‘outrageous government conduct' defense”) (quoting Tucker, 28 F.3d at 1421). The Sixth Circuit also stated that the outrageous government conduct defense is not available “on a theory that the ‘undercover officer's involvement in creating [the] crime was so significant that criminal prosecution violates due process.'” United States v. Blood, 435 F.3d 612, 629 (6th Cir. 2006) (quoting Warwick, 167 F.3d at 975). Other circuits join the Sixth Circuit in these sentiments. See United States v. Boyd, 55 F.3d 239, 241 (7th Cir.) (characterizing the doctrine for outrageous governmental conduct as “ ‘stillborn' . . . for it never had any life”); United States v. Santana, 6 F.3d 1, 3-4 (1st Cir. 1993) (“Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.”).

         In this case, Ammons argues two types of government action occurred that are so outrageous as to require dismissal of an indictment: (1) the government supplied or became intimately involved in contraband and (2) the government's conduct resulted in injuries to innocent third parties. [R. 51 at 6.]

         A. Availability of the “Outrageous Government Conduct” Defense

         It is doubtful that the outrageous government conduct defense should apply to the first type of government action asserted by Ammons. As explained earlier, this defense is not available “where the defense is based either on a theory of government inducement or on a theory that the ‘undercover officer's involvement in creating [the] crime was so significant that criminal prosecution violates due process.'” Blood, 435 F.3d at 629 (quoting Warwick, 167 F.3d at 975) (citation omitted). Although Ammons does not claim any inducement occurred, he does suggest that the government's involvement in the website, Playpen, was so significant that a criminal prosecution would violate due process. Specifically, Ammons claims the government engaged in a type of action in which “the Government supplies contraband, or becomes intimately involved in its production.” [R. 51 at 6 (quoting United States v. Thoma, 726 F.2d 1191, 1199 (7th Cir. 1984)).] Ammons implies that by allowing Playpen to stay online, the government became “intimately involved” in the illegal activity that occurred. [See Id. at 6, 8-9.] This type of government involvement is analogous to the facts of Blood, in which the defendants claimed it was outrageous conduct when an FBI informant developed an investment program in order to bring the defendants from California to Nashville so he could collect their counterfeit securities. 435 F.3d at 629-630. In both cases, the government became significantly involved in the illegal activity, be it Playpen or an investment program. Just as the Sixth Circuit concluded in Blood, Ammons's allegation cannot support a claim for outrageous government conduct because it is based on the theory that the government's involvement in Playpen was “so significant that criminal prosecution violates due process.” Id.

         B. Four Factor Determination

         Even if the outrageous government conduct defense is not available for Ammons's first argument, the second argument still remains for the Court to decide. Out of an abundance of caution, the Court will analyze both of Ammons's arguments using the four considerations supplied by the Sixth Circuit. In short, after applying the four factor test, the Court finds that the government's conduct does not rise to the level of egregiousness required to dismiss Count 2 of the Indictment.

         The first factor to be considered is “the need for the type of government conduct in relationship to the criminal activity.” Johnson, 855 F.2d at 304-05. In Johnson, the Sixth Circuit stated that “the transmission of child pornography through the mails occurs within a shroud of secrecy, ” making the government's use of a magazine ad and personal correspondence necessary to catch criminals. Id. at 305. The utilization of “The Onion Router” network (or “Tor, ” for short) to disguise both Internet users and websites in this case creates a “shroud of secrecy” much more opaque and enveloping than the comparatively simple use of the mail in Johnson. [See R. 24-2 at 15-16 (Affidavit in Support of Application for Search Warrant).] Furthermore, the Sixth Circuit previously stated that “[g]overnment undercover operations are severely needed to prevent and deter ...


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