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80 Iowa L. Rev. 955 (1994-95)
United States v. Tucker: The Illegitimate Death of the Outrageous Governmental Conduct Defense

handle is hein.journals/ilr80 and id is 969 raw text is: United States v. Tucker. The Illegitimate Death of the Outrageous Governmental Conduct Defense? Conrad F. Meis* For years, government agents in the United States have conducted sting operations' to fight crime.2 In a typical sting operation, a gov- ernment agent seeks to purchase contraband to identify sellers.The agent also secretly records any sales on video or audio tape for use as evidence against the seller.4 More recently, government agents have resorted to reverse sting operations.5 In a reverse sting, government agents pose as dealers of contraband in transactions that they arrange and secretly record for 6 evidentiary purposes. The question arises whether the government may overstep its constitutional bounds in overzealous attempts to curb crime! * Law Student, University of Iowa. 1. A sting is defined as: An undercover police operation in which police pose as criminals to trap law violators. Maureen Duffy, Jacobson v. United State: Do the Ends Justify the Means in Government Stings?, 24 Loy. U. Chi. L.J. 77, 77 n.2 (1992) (citing Black's Law Dictionary 1414 (6th ed. 1990)). 2. Damon D. Camp, Out of the Quagmire AfterJacobson v. United States. Towards a More Balanced Entrapment Standard, 83 J. Crim. L & Criminology 1055, 1057 (1993)(reporting that law enforcement agents have used sting operations for nearly two decades). 3. Doug Nesheim, Criminal Law--Entrapment: Illegal Police Conduct Gets Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L Rev. 969, 989 (1993). 4. See Camp, supra note 2, at 1057-58 (describing a series of early sting operations in which federal agents videotaped transactions in stolen goods, resulting in a 95% conviction rate). 5. Id. at 1058 (explaining that law enforcement officials started using reverse stings for purposes of drug enforcement in the early 1980s). 6. United States v. Tucker, 28 F.3d 1420, 1421 (6th Cir. 1994), cet. denied, 115 S. Ct. 1426, 1426 (1995); see also Nesheim, supra note 3, at 985 (explaining that a sting becomes a reverse sting when a law enforcement official sells contraband instead of purchasing it); Rhonda E. Stringer, The Due Process Defense in Reverse Sting Cases: 'When Do Police Overstep the Bounds of Permissible Conduct?, 22 Stetson L Rev. 1305, 1305 n.1 (1993) (A reverse sting operation is an undercover operation where the police pose as sellers of previously confiscated drugs, set up deals with would-be buyers under carefully controlled conditions, and arrest purchasers following the sham sale.) (quoting Owen v. Wainwright, 806 F.2d 1519, 1520 (11th Cir. 1986)). 7. Although neither stings nor reverse stings are unconstitutional, reverse stings create the opportunity for the government to create the entire crime, entice an individual who otherwise never would have broken the law to participate in the crime, and prosecute the individual for submitting to the government agent's persuasion. Unlike regular sting operations in which the government seeks to convict people who are already trying to commit a crime by selling contraband, in reverse stings the government may create a crime that never