United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
before me is the Motion to Dismiss the Superseding Indictment
(Doc. 151) filed by Defendant Lee Crawford
("Crawford"). Crawford argues that the Superseding
Indictment should be dismissed because his due process rights
were violated as the result of outrageous government conduct
and he was entrapped as a matter of law. Because the
Government's conduct was not so outrageous as to amount
to a due process violation and Crawford has not established
his entrapment defense as a matter of law, the motion to
dismiss will be denied.
was indicted by a grand jury on March 12, 2013. (See
Doc. 1, generally). The Superseding Indictment was
returned against Crawford on August 16, 2016. (See
Doc. 105, generally). Crawford was charged in the
Superseding Indictment with: (1) being a convicted felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e); and (2) distribution and
possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1). (See id.).
March 2, 2018, Crawford moved to dismiss the Superseding
Indictment. (See Doc. 151, generally).
Therein, Crawford relates the factual background regarding a
search of the residence he shared with his girlfriend in
Kingston, Pennsylvania in July 2010 by Kingston Police
related to the claim by a confidential source that Crawford
was involved in the sale of crack cocaine. (See Id.
at ¶¶ 4-5). After that search revealed $1, 300.00,
a quantity of ziploc bags, a prescription pill bottle, and a
small amount of marijuana, Crawford was taken to SCI-Dallas
to be lodged pending a violation for his state parole.
(See Id. at ¶¶ 5-6). A second search of
the residence that evening with use of a drug detection
canine uncovered only a small glass pipe containing burnt
marijuana residue. (See Id. at ¶ 7). A criminal
complaint was filed against Crawford charging him with two
counts of misdemeanor possession of a controlled substance
and one count of misdemeanor possession of drug
paraphernalia. (See Id. at ¶ 9). An Information
was subsequently filed against him. (See id.).
the pendency of that case, Crawford was told by a Kingston
detective that if he did not plead guilty his girlfriend
would face marijuana charges. (See Id. at ¶
11). On January 9, 2012, the misdemeanor drug charges were
withdrawn and Crawford pled no contest to summary disorderly
conduct and received a sentence of seventeen (17) days time
served. (See Id. at ¶ 12).
to Crawford, after he was released on bail, Kingston Police
targeted him for criminal activity by way of two (2)
confidential informants that were also engaged in other
illegal activity. (See Id. at ¶¶ 14-18).
Specifically, the confidential informants, a male and female
couple, allegedly inquired to Crawford about acquiring a
firearm for family protection even though he had no
predisposition to deal in firearms. (See Id. at
¶ 20). The couple also sought Crawford's assistance
in obtaining crack cocaine to ease their drug withdrawal
symptoms. (See Id. at ¶ 21). This scheme,
claims Crawford, was devised by Kingston Police to settle the
score against him for his successful defense on his prior
charges. (See Id. at ¶ 22).
opposition, the Government explains that on February 29,
2012, a confidential informant made arrangements to purchase
a firearm from Crawford in exchange for $600.00.
(See Doc. 155, 2). On that day, Crawford was
recorded describing the firearms and bullets. (See
Id. at 3).
on March 8, 2012, investigators used a confidential informant
to purchase approximately 3.5 grams of cocaine from Crawford.
(See Id. at 4). A telephone recording was made of
the call between Crawford and the informant discussing the
details of the drug transaction that was to occur at the
informant's residence. (See Id. at 4-5). After
Crawford arrived, the drug transaction was recorded by way of
a video/recording device. (See id.).
Government also points out that Crawford has been convicted
on seventeen (17) occasions since 1982 for a variety of
crimes, including theft, robbery, public drunkenness, and
drug trafficking. (See Id. at 7-8).
contends that the Superseding Indictment should be dismissed
for two reasons. First, he argues that the case should be
dismissed under the Due Process Clause as a result of
"outrageous government conduct." (Doc. 151,
¶¶ 19-24). Second, Crawford asserts that he was
entrapped as a matter of law. (See Id. at
Outrageous Government Conduct.
Process Clause prohibits a defendant from being
"convicted of a crime in which police conduct was
'outrageous.'" United States v. 7\wgg,
588F.2d373, 379 (3d Cir. 1978). The conduct must be
"shocking, outrageous and clearly intolerable."
United States v. Nolan-Cooper,155 F.3d 221, 231 (3d
Cir. 1998) (citation and quotation omitted). This
"principle is to be invoked only in the face of the most
intolerable government conduct." United States v.
Lakhani,480 F.3d 171, 180 (3d Cir. 2007) (quotation and
citation omitted). "[T]he doctrine of outrageous
government misconduct although often invoked by defendants,
is rarely applied by courts." United States v.
Voigt,89 F.3d 1050, 1065 (3d Cir. 1996). Indeed, there
have been "only two reported court of appeals decisions
- both from the 1970s - that have deemed the government's
conduct so outrageous as to violate due process."
United States v. Combs,827 F.3d 790, 795 (8th Cir.
2016) (citing Twigg, 588 U.S. at 381; Greene v.
United States,454 F.2d 789, 787 (9th Cir. 1971));
United States v. Washington,869 F.3d 193, 209 (3d
Cir. 2017); accord Nolan-Cooper, 155 F.3dat230
("it appears that the viability of the doctrine is
hanging by a thread"). "While continuing to
recognize, in theory, the outrageousness ...