                                                                                         December 20 2012


                                           DA 11-0559

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 300


STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

DELAINE MINNIE FITZPATRICK
and MALISA LYNN FITZPATRICK,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Hill, Cause Nos. DC 10-096 and DC 10-097
                        Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Steve Bullock, Montana Attorney General; Tammy A. Hinderman
                        (argued), Assistant Attorney General, Helena, Montana

                        Chad Parker, Assistant Attorney General, Special Deputy County Attorney
                        for Hill County, Helena, Montana

                For Appellees:

                        Jeremy S. Yellin (argued), Attorney at Law, Havre, Montana
                        Marta N. Farmer Yellin (argued), Attorney at Law, Livingston, Montana


                                                                 Argued: September 21, 2012
                                                               Submitted: September 25, 2012
                                                                Decided: December 20, 2012




Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     The State of Montana appeals from the order of the Twelfth Judicial District Court

dismissing all charges against Delaine Fitzpatrick (Delaine) and Malisa Fitzpatrick

(Malisa) (collectively, the Fitzpatricks). We reverse and address the issue:

¶2     Did the District Court err by granting the Fitzpatricks’ motion to dismiss for

outrageous government conduct?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     During the summer of 2010, several police informants independently advised

Agent Peter Federspiel of the Tri-Agency Safe Trails Task Force that the Fitzpatricks

were operating an illicit marijuana business in Havre.             The informants told Agent

Federspiel that the Fitzpatricks were using their medical marijuana business, “Gonja

Gardens,” as a front to sell greater quantities of marijuana than permitted under the

Medical Marijuana Act (the Act).1 Based on this information, Agent Federspiel applied

for a search warrant authorizing Agent Brad Gremaux of the Division of Criminal

Investigation to set up undercover buys of marijuana from the Fitzpatricks and to

electronically monitor and record those transactions. On July 28, 2010, District Court

Judge David Rice issued the search warrant.

¶4     Agent Gremaux was selected as the undercover agent because he already

possessed a qualifying patient medical marijuana registry card (patient card). Under the

Act, a person who obtains a patient card from the Department of Health and Human


1
 The version of the Act applicable to the Fitzpatricks’ conduct is §§ 50-46-101, MCA, to 50-46-210,
MCA (2009).
                                                2
Services (the Department) is authorized to “cultivate, manufacture, possess, and

transport” marijuana in amounts permitted by the Act. Section 50-46-303(1)(b), MCA

(2009). Agent Gremaux had previously obtained a fictitious Montana driver’s license in

the name of his undercover identity. Using his undercover identity, Agent Gremaux had

attended a medical marijuana seminar in Missoula where he completed a form indicating

that he needed medical marijuana because he suffered from a “debilitating medical

condition.” Section 50-46-102(2), MCA. He used his undercover identity in a visit to a

Missoula physician, and did not advise the physician that he was applying for a patient

card for investigative purposes.     The physician signed a form verifying that Agent

Gremaux’s medical condition qualified him for medical marijuana. Agent Gremaux then

completed an application for a patient card, paid the necessary application fee, and sent

the materials to the Department. Agent Gremaux did not indicate in his application

paperwork that he was applying for the patient card as an undercover agent.               The

Department issued Agent Gremaux a patient card in the name of his undercover identity.

¶5     Using his undercover identity, Agent Gremaux contacted Delaine Fitzpatrick on

July 28, 2010.2 He offered that he was passing through town, that he had a patient card,

and that he was sick. Delaine agreed to meet him in the parking lot of a Havre bar, and to

sell him a quarter-ounce of marijuana. When they met, Delaine asked Agent Gremaux

for his identification and patient card.      Satisfied, Delaine sold Agent Gremaux the

marijuana.    Before parting, Agent Gremaux and Delaine made plans for future
2
  All of Agent Gremaux’s conversations with the Fitzpatricks, via telephone and in person, were
electronically monitored and recorded pursuant to search warrants issued by Judge Rice. These
transcribed recordings provide the factual background for Agent Gremaux’s interactions with the
Fitzpatricks.
                                              3
transactions. Delaine provided Agent Gremaux with the phone number of her sister,

Malisa, to contact if Delaine was unavailable.

¶6      Over the next two weeks, Agent Gremaux purchased quantities of marijuana from

Delaine and Malisa in excess of what was legal under the Act. On August 2, 2010, Agent

Gremaux purchased four ounces of marijuana from Delaine for $1,100. On August 18,

2010, Malisa agreed to sell Agent Gremaux another four ounces. When Agent Gremaux

attempted to arrange a purchase of more than four ounces, Malisa told him that she would

be unable to sell him more than four ounces until he had “cards” underneath him to

“cover” the Fitzpatricks and himself.

¶7      On August 19, 2010, Agent Gremaux called Malisa to arrange the pickup of the

agreed-to four ounces. They agreed to meet in the parking lot of a Havre grocery store.

Law enforcement arrested Malissa on her way to this meeting and Delaine in their home.

Following the arrests, Agent Federspiel executed search warrants for the Fitzpatricks’

vehicles, their residence, and the garage of a house to which he had followed Malisa on

several occasions.      The officers retrieved 211.5 ounces of marijuana and marijuana

preparations. This exceeded by four times the amount of marijuana the Fitzpatricks were

allowed to possess as “caregivers” and “patients” under the Act.3

¶8      The State charged Delaine with two counts of criminal distribution of dangerous

drugs and one count of criminal possession of dangerous drugs with intent to distribute.


3
   Malisa was a registered “caregiver” to 25 patients, and Delaine was a registered “caregiver” to 22
patients. Both were also registered “patients.” Under the Act, a caregiver is permitted to possess 1 ounce
of usable marijuana per patient, and a patient is permitted to possess one ounce of marijuana. Section 50-
46-201(1)(b), MCA (2009). Therefore, as both caregivers and patients, Malisa and Delaine were
authorized to possess a total of 49 ounces of marijuana.
                                                    4
Malisa was charged with two counts of criminal distribution of dangerous drugs, one

count of criminal distribution of dangerous drugs by accountability, and one count of

criminal possession of dangerous drugs with intent to distribute. The Fitzpatricks’ cases

were later consolidated by stipulation of the parties.

¶9     The Fitzpatricks filed a joint motion to suppress and dismiss. They argued, inter

alia, that the charges should be dismissed because the State engaged in “outrageous

government conduct” by obtaining evidence against them in violation of the Due Process

Clause of the federal Constitution. The Fitzpatricks asserted that Agent Gremaux’s

obtaining of a medical marijuana patient card was outrageous conduct because he lied to

the physician about his identity, provided the physician with a fake Montana driver’s

license, lied about needing medical marijuana to treat physical symptoms, and lied on his

application to the Department to obtain his patient card. Because these actions would be

illegal if committed by an ordinary citizen, the Fitzpatricks argued it was outrageous and

violated their due process rights. The Fitzpatricks relied solely on federal law, making no

argument that the conduct violated the Montana Constitution.

¶10    The District Court conducted a hearing and orally granted the Fitzpatricks’ motion

to dismiss. The District Court found the process by which Agent Gremaux had obtained

his medical marijuana patient card “somewhat shocking” in that he broke numerous laws

“under the banner of law enforcement.” The District Court reasoned that the government

should not be allowed to “get right down in the mud of criminal activity” for no other

reason than the “ends justify the means.” The District Court concluded:



                                              5
       [W]hat the state is asserting is that because we thought that there may be a
       crime being committed we then have the authority to do whatever is
       necessary in order to prosecute that crime and in order to attempt to get the
       information necessary to charge them with a crime, and although I certainly
       would agree that undercover operatives have some leeway in regards to
       having to deal with the criminal elements that they’re required to operate
       within, I do not find any authority for the proposition that in order to do so
       they are allowed to conduct themselves in a way in which it would be
       illegal if they were a private citizen, and that’s where I think the problem is
       here, is that if a private citizen did the things that [Agent Gremaux] did here
       they would be susceptible to being charged with criminal offenses. And I
       find nothing in the law that indicates that there is an exception for law
       enforcement to comply with the law, so that’s the basis for the Court’s
       ruling here.

¶11    The State appeals.

                               STANDARD OF REVIEW

¶12    A motion to dismiss in a criminal case “based on outrageous government conduct

is a question of law reviewed de novo.” U.S. v. Citro, 842 F.2d 1149, 1152 (9th Cir.

1988); accord State v. Howard, 2008 MT 173, ¶ 8, 343 Mont. 378, 184 P.3d 344.

                                       DISCUSSION

¶13    Did the District Court err by granting the Fitzpatricks’ motion to dismiss for

outrageous government conduct?

¶14    The State argues that the dismissal of the charges was error because federal courts

have concluded that limited government involvement in criminal activities is both

constitutionally acceptable and necessary, particularly during the investigation of illicit

transactions such as those involved here. Because the “outrageous government conduct”

defense and the “entrapment” defense share origins and are often discussed together, an

analysis requires reference to both.

                                             6
¶15       These defenses have their jurisprudential roots in the United States Supreme Court

case of Sorrells v. U.S., 287 U.S. 435, 53 S. Ct. 210 (1932), in which the Court first

recognized the entrapment defense. Sorrells, 287 U.S. at 443, 53 S. Ct. at 213. Prior to

Sorrells, there had been a “deep split of authority” within the lower courts regarding

whether entrapment was a “subjective (looking to the defendant’s predisposition)”

defense or “objective (looking to the government’s conduct)” defense. U.S. v. Tucker, 28

F.3d 1420, 1422 (6th Cir. 1994). The Court chose the subjective approach, under which a

defendant who “seeks acquittal by reason of entrapment . . . cannot complain of an

appropriate and searching inquiry into his own conduct and predisposition as bearing

upon that issue.” Sorrells, 287 U.S. at 451, 53 S. Ct. at 216. Whether the defendant is

predisposed to commit the crime was a question of fact for the jury. Sorrells, 287 U.S. at

452, 53 S. Ct. at 216. The Court reasoned that the legal foundation for the entrapment

defense was statutory construction: Congress did not intend for criminal statutes to apply

to conduct that had been instigated by government officials to lure innocent persons into

committing crimes. Sorrells, 287 U.S. at 448, 53 S. Ct. at 215.

¶16       Justice Roberts concurred with the result in Sorrells but wrote separately to

express his view that the objective approach should be adopted—would the government’s

conduct have induced a reasonable person to commit the crime. Sorrells, 287 U.S. at

453, 53 S. Ct. at 217 (Roberts, J., concurring).4 To Justice Roberts, the subjective

approach was under-inclusive because the “true foundation” of the entrapment doctrine

was not only to protect innocent persons from being ensnared in government traps, but

4
    Justices Brandeis and Stone joined Justice Roberts’ concurrence.
                                                      7
also to protect the “purity of government and its processes.” Sorrells, 287 U.S. at 455, 53

S. Ct. at 217. Under this view, the courts—not juries—would dismiss criminal charges

that the government obtained through the disregard of statutory or common-law rules:

“The protection of its own functions and the preservation of the purity of its own temple

belongs only to the court. It is the province of the court and of the court alone to protect

itself and the government from such prostitution of the criminal law.” Sorrells, 287 U.S.

at 457, 53 S. Ct. at 218. Over the ensuing decades, a robust debate regarding the

subjective approach versus the objective approach to entrapment continued in a series of

Supreme Court cases. In each case, narrow majorities carried the day for the continued

use of the subjective entrapment approach. See Sherman v. U.S., 356 U.S. 369, 372, 78

S. Ct. 819, 822 (1958) (“To determine whether entrapment has been established, a line

must be drawn between the trap for the unwary innocent and the trap for the unwary

criminal.”); see also U.S. v. Russell, 411 U.S. 423, 433 93 S. Ct. 1637, 1643 (1973);

Hampton v. U.S., 425 U.S. 484, 490, 96 S. Ct. 1646, 1650 (1976) (plurality). Eventually,

the subjective entrapment analysis was endorsed by all of the Justices. Jacobson v. U.S.,

503 U.S. 540, 112 S. Ct. 1535 (1992).

¶17    While the objective entrapment analysis espoused by Justice Roberts in Sorrells

never gained the Court’s favor, the outrageous government conduct defense arose to

check excessive government tactics. Like the theory of objective entrapment that was

rejected by the Court, the outrageous government conduct defense focused on the

government’s conduct in obtaining the evidence against the defendant, as opposed to the

defendant’s predisposition to commit the crime. Rochin v. Cal., 342 U.S. 165, 172, 72 S.
                                             8
Ct. 205, 209-10 (1952); Russell, 411 U.S. at 431-32, 93 S. Ct. at 1643. The defense made

its first appearance in Rochin. There, three deputy sheriffs made a warrantless entry into

the defendant’s house, assaulted the defendant, and later ordered a doctor to pump his

stomach in an attempt to retrieve two morphine pills that he had swallowed in their

presence. Rochin, 342 U.S. at 166-67, 72 S. Ct. at 207. After reasoning that judicial

review of law enforcement tactics was reserved only for practices that violate “ ‘those

personal immunities’ ” that are “ ‘so rooted in the traditions and conscience of our people

as to be ranked as fundamental,’ ” Rochin, 342 U.S. at 169, 72 S. Ct. at 208 (quoting

Snyder v. Mass., 291 U.S. 97, 105, 54 S. Ct. 330, 332 (1934)), the Rochin Court held that

the deputy sheriffs’ actions had crossed that line:

       [W]e are compelled to conclude that the proceedings by which this
       conviction was obtained do more than offend some fastidious
       squeamishness or private sentimentalism about combatting crime too
       energetically. This is conduct that shocks the conscience. Illegally
       breaking into the privacy of the [defendant], the struggle to open his mouth
       and remove what was there, the forcible extraction of his stomach’s
       contents—this course of proceedings by agents of the government to obtain
       evidence is bound to offend even hardened sensibilities. They are methods
       too close to the rack and the screw to permit of constitutional
       differentiation.

Rochin, 342 U.S. at 172, 72 S. Ct. at 210. The Court reversed the defendant’s conviction

as a matter of law, reasoning, like Justice Robert’s objective entrapment analysis in

Sorrells, that the determination of whether the government’s conduct violated due

process was for the courts, not juries. Rochin, 342 U.S. at 174, 72 S. Ct. at 210.

¶18    Although the Court has not applied Rochin’s shocks-the-conscience test to reverse

a conviction in the succeeding 60 years, neither has the test been overruled. In Russell,

                                              9
the Court rejected the defendant’s entrapment argument and analyzed, under the Rochin

test, the undercover federal agent’s conduct of providing the chemical necessary for the

defendant’s production of methamphetamine. Russell, 411 U.S. at 432, 93 S. Ct. at 1643.

The Court concluded that the defense was inapplicable under the facts of the case, but in

dicta stated the door was open to future challenges based thereon:

      While we may someday 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, cf. Rochin v. California, 342 U.S. 165 (1952), the
      instant case is distinctly not of that breed. [The undercover federal agent’s]
      contribution of propanone to the criminal enterprise in process was scarcely
      objectionable. . . . The law enforcement conduct here stops far short of
      violating that “fundamental fairness, shocking to the universal sense of
      justice,” mandated by the Due Process Clause . . . .

Russell, 411 U.S. at 431-32, 93 S. Ct. at 1643 (citation omitted). The Court reasoned that

the undercover agent’s actions were “scarcely objectionable” because they were likely

the only way for law enforcement to infiltrate the on-going methamphetamine operation:

      The illicit manufacture of drugs is not a sporadic, isolated criminal incident,
      but a continuing, though illegal, business enterprise. In order to obtain
      convictions for illegally manufacturing drugs, the gathering of evidence of
      past unlawful conduct frequently proves to be an all but impossible task.
      Thus in drug-related offenses, law enforcement personnel have turned to
      one of the only practicable means of detection: the infiltration of drug rings
      and a limited participation in their unlawful present practices. Such
      infiltration is a recognized and permissible means of investigation; if that
      be so, then the supply of some item of value that the drug ring requires
      must, as a general rule, also be permissible. For an agent will not be taken
      into the confidence of the illegal entrepreneurs unless he has something of
      value to offer them. Law enforcement tactics such as this can hardly be
      said to violate “fundamental fairness” or “shocking to the universal sense of
      justice.”




                                            10
Russell, 411 U.S. at 432, 93 S. Ct. at 1643 (citation omitted). The Court thus illustrated

that the determination of whether conduct is “outrageous” is analyzed within the context

of the particular illegal activity under investigation.

¶19    Three years later, the Court revisited the outrageous government conduct defense

in Hampton. The defendant was convicted of selling heroin to undercover DEA agents,

even though a government informant supplied the heroin to the defendant. Hampton, 425

U.S. at 485-87.      Citing Russell’s “someday” dicta, the defendant argued that the

government’s actions in both supplying him with the heroin and purchasing it were so

outrageous that it violated his right to due process. Hampton, 484 U.S. at 489-90, 96 S.

Ct. at 1649-50. The decision produced three separate opinions, with no opinion receiving

the vote of a majority of the Justices. Writing for a three-justice plurality, then-Justice

Rehnquist proffered that the defense of entrapment was available only if (1) the

defendant was not predisposed to commit the crime, and (2) the defendant did not

encourage the government’s illegal actions. Hampton, 425 U.S. at 489, 96 S. Ct. at 1649.

Likewise, the defense of outrageous government conduct was not available unless these

conditions were met. Hampton, 425 U.S. at 489, 96 S. Ct. at 1649 (“The remedy of the

criminal defendant with respect to the acts of Government agents, which, far from being

resisted, are encouraged by him, lies solely in the defense of entrapment. But, as noted,

[the defendant’s] conceded predisposition rendered this defense unavailable to him.”)

(Emphasis added). Analyzing the defendant’s outrageous government conduct defense,

Justice Rehnquist wrote that the trickery used by the undercover agents to sell heroin to



                                              11
the defendant and to later purchase the same heroin from him did not implicate the

defendant’s legal rights:

          The limitations of the Due Process Clause of the Fifth Amendment come
          into play only when the Government activity in question violates some
          protected right of the Defendant. . . . If 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.

Hampton, 425 U.S. at 490, 96 S. Ct. at 1650. Justice Powell concurred but wrote

separately to voice his disagreement with Justice Rehnquist’s bright-lined rule that barred

defendants from asserting an outrageous government conduct defense if they were

predisposed to commit the crime and encouraged the government’s illegal conduct.

Hampton, 425 U.S. at 492-93, 96 S. Ct. at 1651 (Powell, J., concurring). 5 To Justice

Powell, such a rule was premature, given that the Court had previously only had the

opportunity to address government involvement in contraband offenses. Hampton, 425

U.S. at 493, 96 S. Ct. at 1651. With such a narrow survey of cases, he was unwilling to

foreclose future scenarios where due process could be implicated by egregious

government conduct regardless of the defendant’s predisposition or the level of the

government involvement in the crime:

          “There is certainly a constitutional limit to allowing governmental
          involvement in crime. It would be unthinkable, for example, to permit
          government agents to instigate robberies and beatings merely to gather
          evidence to convict other members of a gang of hoodlums. Governmental
          ‘investigation’ involving participation in activities that result in injury to
          the rights of its citizens is a course that courts should be extremely reluctant
          to sanction.”

5
    Justice Blackmun joined Justice Powell’s concurrence.

                                                    12
Hampton, 425 U.S. at 492 & n. 4, 96 S. Ct. at 1651-52 (quoting U.S. v. Archer, 486 F.2d

670, 676-77 (2d Cir. 1973) (Friendly, J.) (brackets omitted)). Justice Powell emphasized

that government conduct rising to the level of a due process violation would be “rare” in

the context of contraband offenses: “Police overinvolvement in crime would have to

reach a demonstrable level of outrageousness before it could bar conviction. This would

be especially difficult to show with respect to contraband offenses, which are so difficult

to detect in the absence of undercover Government involvement.” Hampton, 425 U.S. at

495 & n. 7, 96 S. Ct. at 1653. Justice Brennan dissented.6 He advocated the rebirth of

objective entrapment and sided with Justice Powell’s concurrence that the outrageous

government conduct defense should be permitted regardless of the defendant’s

predisposition. Hampton, 425 U.S. at 496-97, 96 S. Ct. at 1653 (Brennan, J., dissenting).

¶20       Thus, while Hampton had no majority opinion, five members of the Court—two in

Justice Powell’s concurrence and three in Justice Brennan’s dissent—approved the

continued viability of the “outrageous government conduct” defense. See Hampton, 425

U.S. at 493-94, 96 S. Ct. at 1652-53 (Powell & Blackmun, JJ., concurring in judgment);

Hampton, 425 U.S. at 497, 96 S. Ct. at 1653-64 (Brennan, Stewart, & Marshall, JJ.,

dissenting). The defense has thus survived in the jurisprudence of the United States




6
    Justices Stewart and Marshall joined the dissent. Justice Stevens did not participate.

                                                   13
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 “[p]rosecution 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 F.2d 896, 904 (9th Cir. 1993) (internal quotation

marks and brackets omitted). That court has explained that “grossly shocking” and

“outrageous” is an “extremely high standard,”8 requiring, at a minimum, that the

government’s involvement: (1) “be malum in se” or (2) “amount to the engineering and




7
  Two Circuit Courts of Appeal have rejected the outrageous government conduct defense
altogether. See 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 non-judiciable political question that invites
judges not to apply legal rules but to instead determine whether the “government is violating the
community’s moral standards.”). Another Circuit has openly called for its demise. See U.S. v.
Santana, 6 F.3d 1, 3-4 (1st Cir. 1991) (outrageous government conduct defense is the “deathbed
child of objective entrapment, a doctrine long since discarded in the federal courts”). Further,
the United States Supreme Court has commented that because Rochin was decided before Mapp
v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961), the issue would now be “treated under the Fourth
Amendment, albeit with the same result.” Co. of Sacramento v. Lewis, 523 U.S. 833, 849 n. 9,
118 S. Ct. 1708, 1718 n. 9 (1998). However, the majority of the Courts of Appeal, including the
Ninth Circuit, continue to recognize the defense. See e.g. U.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. Ariz. April 20, 2010).

                                               14
direction of the criminal enterprise from start to finish.” U.S. v. Smith, 924 F.2d 889, 897

(9th Cir. 1991).9

¶22    Malum in se is defined as a “[c]rime or act that is inherently immoral, such as

murder, arson, or rape.” Black’s Law Dictionary 1045 (Bryan A. Garner ed., 9th ed.,

West 2009). Malum prohibitum on the other hand is “[a]n act that is a crime merely

because it is prohibited by statute, although the act itself is not necessarily immoral.”

Black’s Law Dictionary at 1045. Our Court and other courts have likewise recognized

that there is a “well-recognized” distinction between these types of crimes. State v.

Smith, 190 P. 107, 112, 57 Mont. 563, 578-79 (1920). In the context of the outrageous

government conduct defense, this distinction reflects the reality that malum in se crimes

such as rape or murder directly affect individuals, whereas malum prohibitum crimes

generally affect only the administration of public order. See Archer, 486 F.2d at 676-77.

Drawing the line between malum in se and malum prohibitum thus attempts to strike a

balance between protecting individual citizens from government conduct that injures

another and judicial deference to the executive branch to aggressively ferret out crime.

Archer, 486 F.2d at 677-78.

¶23    Here, Agent Gremaux’s conduct of obtaining a fictitious Montana driver’s license,

visiting a doctor and obtaining a prescription for medical marijuana using his false


9
 This disjunctive test is derived primarily from Justice Powell’s concurrence in Hampton. See
U.S. v. Gonzales, 539 F.2d 1238, 1239 (9th Cir. 1976) (per curiam). Justice Powell reasoned that
courts may have a constitutional duty to dismiss prosecutions when government activities have
directly injured the rights of others (malum in se conduct) or when the government has
engineered and directed a criminal enterprise from start to finish. Hampton, 425 U.S. at 493 nn.
3, 4, 6, & 7, 96 S. Ct. at 1652 nn. 3, 4, 6, & 7.

                                              15
identity and under the pretense of needing medical marijuana for an ailment, and using

his fictitious Montana driver’s license and the prescription to apply for a patient card

from the Department, are malum prohibitum offenses. 10 This type of law enforcement

subterfuge does not constitute “inherently immoral” crimes such as rape or murder;

rather, these offenses committed by Agent Gremaux are crimes “merely” because they

are prohibited by statute. Because Agent Gremaux’s undercover involvement did not

include malum in se acts, the defense of outrageous government conduct is not implicated

under Ninth Circuit precedent. See Smith, 924 F.2d at 897. A survey of Ninth Circuit

precedent confirms our conclusion. The Ninth Circuit has upheld against due process

challenges the following illegal conduct by law enforcement: the use of false identities by

undercover agents, Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986), the

introduction of drugs into a prison to identify a distribution network, U.S. v. Wiley, 794

F.2d 514, 515 (9th Cir. 1986), and the commission of equally serious offenses by an

undercover agent as part of the investigation, U.S. v. Stenberg, 803 F.2d 422, 430-31 (9th

Cir. 1986); accord U.S. v. Hugs, 109 F.3d 1375, 1379 (9th Cir. 1997).

¶24    Further, Agent Gremaux’s malum prohibitum conduct did not injure the

Fitzpatricks. While his conduct technically violated Montana statutes, these crimes did

not affect the Fitzpatricks’ due process rights. In Rivera v. Wyoming, 846 P.2d 1, 7

(Wyo. 1993), the Wyoming Supreme Court held that an undercover agent’s failure to


10
  The District Court named the following crimes that Agent Gremaux committed in obtaining his
fictitious driver’s license and patient card: “Tampering with public records or information” § 45-
2-207, “False Swearing” § 45-2-202, “Official Misconduct” § 45-7-401, “Fraudulently obtaining
dangerous drugs” § 45-9-104, and “Unlawful use of license or identification card” § 61-5-302.
                                               16
register 100 pounds of marijuana—as required by Wyoming law—did not implicate the

defendant’s legal rights. While recognizing the officer’s actions were technically illegal,

the court reasoned that they did not infringe on any of the defendant’s protected rights.

Rivera, 846 P.2d at 7; accord People v. Welsey, 224 Cal. App. 3d 1130, 1141, 274 Cal.

Rptr. 326 (1990) (“[W]e fail to perceive in what manner the source of the cocaine, or [the

undercover officer’s] illegal possession of the contraband would have affected

defendant’s criminal conduct or had a bearing on his due process rights.”). The United

States Supreme Court has similarly voiced support for the requirement that a defendant

may only challenge actions which infringe on his rights. See U.S. v. Payner, 447 U.S.

727, 737 n. 9, 100 S. Ct. 2439, 2447 n. 9 (1980) (rejecting defendant’s argument that the

government’s unconstitutional search of third-party’s briefcase amounted to outrageous

government conduct because “the fact remains that ‘the limitations of the Due Process

Clause . . . come into play only when the Government activity in question violates some

protected right of the defendant’ ”) (quoting Hampton, 425 U.S. at 490, 96 S. Ct. at 1650

(plurality opinion) (emphasis in Payner)); accord U.S. v. Valdovinos-Valdovinos, 743

F.2d 1436, 1437 (9th Cir. 1984). Under this reasoning, Agent Gremaux’s violations of

Montana law in obtaining his medical patient card do not implicate—let alone violate—a

right individual to the Fitzpatricks.

¶25    The Ninth Circuit case of U.S. v. Hugs illustrates this point.         A Montana

undercover wildlife agent posed as a “semiretired contractor interested in hunting,

fishing, and purchasing trophy big game heads” and hired the defendants as guides to

hunt on the Crow Reservation. Hugs, 109 F.3d at 1377. During two guided hunting
                                            17
trips, the undercover agent illegally killed game out of season and illegally brought

alcoholic beverages onto the reservation. Hugs, 109 F.3d at 1379. The defendants were

prosecuted for shooting at, killing, and purchasing eagles in violation of the Bald and

Golden Eagle Protection Act. Hugs, 109 F.3d at 1377. The defendants moved to dismiss

the prosecution, alleging that the undercover agent committed “outrageous conduct”

during his investigation. Hugs, 109 F.3d at 1377. The District Court denied the motion,

and the Ninth Circuit affirmed. Hugs, 109 F.3d at 1377. The Ninth Circuit rejected the

defendants’ argument because the undercover agent’s actions of killing animals did not

“impair[] their due process rights.” Hugs, 109 F.3d at 1379. As in Russell and Justice

Powell’s Hampton concurrence, which reasoned that common sense required that law

enforcement enjoy greater leeway in infiltrating and investigating secretive groups such

as those involved in drug enterprises, the Ninth Circuit reasoned that the undercover

agent’s conduct was necessary to keep his cover as a supposed hunter. Hugs, 109 F.3d at

1379 (“Agent Long testified that he occasionally shot an animal, but only when necessary

to maintain his credibility as a supposed hunter . . . .”).

¶26    Agent Gremaux’s conduct was necessary to infiltrate the Fitzpatricks’ illegal

marijuana enterprise and to maintain his credibility as a medical marijuana patient. From

May through July of 2010, police informants reported to Agent Federspiel that the

Fitzpatricks, under the guise of operating a legal medical marijuana operation, were

selling marijuana in amounts exceeding that permitted by law. It was logical and sensible

for Agent Federspiel to deduce that the Fitzpatricks were selling only to individuals with

patient cards in order to shield themselves from criminal liability. When Agent Gremaux
                                               18
met Delaine for the first time in the bar parking lot, she inspected his Montana driver’s

license and his patient card.      The process through which he obtained his medical

marijuana card was technically illegal, but it was the type of illegal conduct necessary for

him to infiltrate the criminal enterprise as approved by the Supreme Court in Russell and

Hampton, and by the Ninth Circuit in Hugs, Shaw, Wiley, and Stenberg.

¶27    The second circumstance for which the Ninth Circuit has held that a defendant can

raise the outrageous government conduct defense is when the government’s involvement

amounts “to the engineering and direction of the criminal enterprise from start to finish.”

Smith, 924 F.2d at 897. The Ninth Circuit has dismissed charges under this standard only

once. See Greene v. U.S., 454 F.2d 783 (9th Cir. 1971). Because Greene is clearly

distinguishable from the facts at hand, it is of no help to the Fitzpatricks.

¶28    In Greene, an undercover federal agent convinced two defendants who had

recently been charged with manufacturing “bootleg” whiskey to restart their operation.

Greene, 454 F.2d at 785. The agent convinced the defendants that he worked for a

“syndicate,” and pressured the defendants into restarting operations over an eight month

period. Greene, 454 F.2d at 785. In “an effort to spur production” the agent also made

what the court construed as a “veiled threat” that whiskey needed to be made for the

syndicate because “the boss [was] on [his] back.” Greene, 454 F.2d at 784-85, 787. The

agent became a “substantial” partner in the bootlegging operation, offering to provide the

defendants with a “still, a still site, still equipment, and an operator” and actually

providing two thousand pounds of sugar. Greene, 454 F.2d at 786. Before being

arrested, the defendants produced whiskey for over a year and a half, all of which was
                                              19
sold to the agent who paid for it with government funds. Greene, 454 F.2d at 787. The

Ninth Circuit dismissed the charges, asserting that it did “not believe the Government

may involve itself so directly and continuously over such a long period of time in the

creation and maintenance of criminal operations, and yet prosecute its collaborators.”

Greene, 454 F.2d at 787. The Ninth Circuit explained that the circumstances of the

government’s total immersion in the bootlegging operation “from beginning to end” was

“repugnant to American criminal justice.” Greene, 454 F.2d at 786-87. Particularly

troubling to the court was the fact that the undercover operation only served to punish the

same individuals who were already facing identical bootlegging charges:

       [T]he Government, through its [undercover agent], did not simply attach
       itself to an on-going bootlegging operation for the purpose of closing it
       down and prosecuting the operators. Any continuing operation had been
       terminated with the [defendants’ first arrest]. We think, rather, that the
       procedure followed by [the undercover agent] in this case helped first to
       reestablish, and then to sustain, criminal operations which had ceased with
       the first convictions.

Greene, 454 F.2d at 787.

¶29    Greene is not helpful to the Fitzpatricks because none of the circumstances are

present here.11 Agent Gremaux did not pressure the Fitzpatricks into starting up the

illegal part of their marijuana operation. Indeed, the reports that Gonja Gardens was

operating as a front for on-going illegal sales prompted the investigation. Further, Agent

Gremaux never became a partner, let alone a “substantial” partner, in the illegal

11
  The Fitzpatricks invite us to adopt the four factor test articulated by the federal district court in
U.S. v. Batres-Santolino, 521 F. Supp. 744 (N.D. Cal. 1981) to determine if the government’s
over-involvement in a criminal enterprise crosses the line articulated in Greene. To the extent
that Batres-Santolino articulates such a test, we decline their invitation and opt instead to use
Greene itself, as it is more authoritative and provides clearer reasoning.
                                                  20
operations of Gonja Gardens—he did not provide any help to the Fitzpatricks. Unlike

Greene, Agent Gremaux was not Gonja Gardens’ only client. Finally, unlike the punitive

actions of the government in seeking to reactivate an illegal operation to punish the

defendants, who had recently been charged, the Fitzpatricks had not been shut down prior

to their arrests. Agent Gremaux was collecting evidence to shut down Gonja Gardens for

the first time. There are no facts to establish that the government’s investigation of Gonja

Gardens constituted “engineering and direction of the criminal enterprise from start to

finish.” Smith, 924 F.2d at 897.

¶30    Because Agent Gremaux’s conduct was not either “malum in se or engineering

and direction of the criminal enterprise from start to finish,” Smith, 924 F.2d at 897,

“[t]he law enforcement conduct here stops far short of violating that ‘fundamental

fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause

. . . .” Russell, 411 U.S. at 432, 93 S. Ct. at 1643 (citation omitted). The District Court

thus erred in dismissing the Fitzpatricks’ charges based on the outrageous government

conduct defense.

¶31    We reverse the dismissal of the charges and remand for further proceedings.



                                                 /S/ JIM RICE

We Concur:



/S/ PATRICIA COTTER
/S/ JAMES C. NELSON

                                            21
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS

/S/ INGRID G. GUSTAFSON
District Court Judge Ingrid G. Gustafson
sitting for Chief Justice Mike McGrath




                                           22
