FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 17, 2013
Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-3057
RANDY JAY DYKE,
Defendant – Appellant, ____________________________
FEDERAL PUBLIC DEFENDER FOR THE OFFICES OF THE NORTHERN AND EASTERN DISTRICTS OF OKLAHOMA,
Amicus Curiae.
_________________________________ UNITED STATES OF AMERICA,
v. No. 12-3060
DON MILTON STEELE, a/k/a Donald Milton Steele,
FEDERAL PUBLIC DEFENDER FOR THE OFFICES OF THE NORTHERN AND EASTERN DISTRICTS OF OKLAHOMA, Amicus Curiae.
Appeals from the United States District Court for the District of Kansas (D.C. Nos. 10-CR-20037-JWL-01 and 10-CR-20037-JWL-02)
Lumen N. Mulligan, Lawrence, Kansas for Defendant-Appellant Randy Jay Dyke.
Jonathan Laurans, Kansas City, Missouri, for Defendant-Appellant Donald Milton Steele.
Tristram W. Hunt, Assistant United States Attorney, Kansas City, Kansas (Barry R. Grissom, United States Attorney, Kansas City, Kansas, with him on the brief in Case No. 12-3057; Barry R. Grissom, United States Attorney, Kansas City, Kansas, James A. Brown, Assistant United States Attorney, Topeka, Kansas, on the brief in Case No. 12- 3060) for Plaintiff-Appellee, and Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Deputy Assistant Attorney General, David M. Lieberman, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Washington, D.C., with them on the supplemental brief for Plaintiff-Appellee.
Julia L. O’Connell, Federal Public Defender, Carl Folsom, III, Research and Writing Specialist, Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa, Oklahoma, filed an amicus brief in support of Defendants-Appellants Randy Jay Dyke and Donald Milton Steele.
Before HARTZ, ANDERSON, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Randy Dyke and Donald Steele labored in a small time criminal ring on a Kansas
farm. They got by forging checks, peddling pills, and selling marijuana. That is, until
the government showed up. Undercover agents sought to convince them to expand their
2 operations, enticing them with the promise that the road to riches lay in counterfeiting
currency and manufacturing methamphetamine, and assuring them that the agents had the
expertise to help make all this happen.
It didn’t prove a hard sale. Mr. Dyke said he’d been “dreaming about” getting into
the meth business for years and Mr. Steele replied cagily, “we either get three meals and
a cot or we can retire.” But by the time the sting operation ended, Mr. Steele’s less
sanguine prediction proved out. Soon he and his partner were arrested and a jury found
them guilty of drug, forgery, and counterfeiting charges, rejecting their entrapment
defense along the way.
Recognizing the heavy burden facing anyone seeking to overturn a jury’s factual
findings, Mr. Dyke and Mr. Steele apply most of their efforts on appeal in a different
direction. They argue the charges against them should’ve been dismissed as a matter of
law, before the jury ever heard them, because the undercover operation amounted to
“outrageous governmental conduct.”
The so-called “outrageous governmental conduct defense” is something of a
curiosity. In United States v. Russell, the Supreme Court held that the entrapment
defense is based in statute and “focus[es] on the intent or predisposition of the defendant”
rather than on a judgment about the propriety of the conduct of government agents. 411
U.S. 423, 429 (1973). After holding that much the Court then proceeded in dicta to
imagine that it “may some day be presented with a situation in which the conduct of law
enforcement agents is so outrageous that,” quite apart from any statute, “due process
3 principles would absolutely bar the government from invoking judicial processes to
obtain a conviction.” Id. at 430.
Within just three years, though, Russell’s author was busy trying to put back in the
bottle the genie he had loosed. Speaking for only a plurality, Justice Rehnquist said that
it is a “misapprehen[sion]” to think some robust outrageous governmental conduct
defense might some day be found inhering in the due process clause. Hampton v. United
States, 425 U.S. 484, 489 (1976). The “execution of the federal laws under our
Constitution,” the Justice reminded us, “is confided primarily to the Executive Branch of
the Government, subject to applicable constitutional and statutory limitations.” Id. at
490. What authority the due process clause does give courts to oversee the execution of
the laws “come[s] into play only when the Government activity in question violates some
protected right of the [d]efendant.” Id. (emphasis added). The fact that officers may
engage in outrageous conduct is not enough: the remedy in those cases lies “not in
freeing the equally culpable defendant, but in prosecuting the police under the applicable
provisions of state or federal law.” Id. Judges, the Hampton plurality said, simply do not
possess a “chancellor’s foot veto over law enforcement practices of which [they do] not
approve.” Id. (internal quotation marks omitted).
What a plurality said in Hampton, a majority later repeated in United States v.
Payner, 447 U.S. 727 (1980). There, the Court indicated that “even if we assume [the
government’s conduct] was so outrageous as to offend fundamental ‘canons of decency
and fairness,’ the fact remains that ‘[t]he limitations of the Due Process Clause . . . come
4 into play only when the Government activity in question violates some protected right of
the defendant.’” Id. at 737 n.9 (internal citation omitted). The Supreme Court has since
reminded us — regularly — that we are not to reverse convictions simply to punish bad
behavior by governmental agents, but should do so only when the bad behavior
precipitates serious prejudice to some recognized legal right of the particular defendant
before us. See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 254-56 (1988);
United States v. Mechanik, 475 U.S. 66, 72-73 (1986); United States v. Hasting, 461 U.S.
499, 506-07 (1983); United States v. Morrison, 449 U.S. 361, 365-67 (1981).
In light of all this forthing and backing, one might reasonably ask: what’s left of
the outrageous government conduct defense?
Critics suggest nothing. An individual defendant has no individualized interest in
rooting out offensive governmental conduct, that’s an interest all citizens share alike and
so one better adapted for a legislature to pursue by statute than a defendant by motion.
The plurality’s direction in Hampton, repeated by the majority in Payner, tells us all we
need to know. See, e.g., United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995); United
States v. Tucker, 28 F.3d 1420, 1423-24 (6th Cir. 1994); United States v. Miller, 891 F.2d
1265, 1271 (7th Cir. 1989) (Easterbrook, J., concurring). Besides, to the extent the
defendant’s personal interests might be harmed by outrageous governmental conduct,
other defenses already exist to address the problem. If the conduct of the undercover
government agents was so domineering that the defendant failed to form the necessary
mens rea for an offense, he must be acquitted. Even if the necessary mens rea is present
5 (and actus reus of course), if the government’s conduct forced the defendant to engage in
a crime or induced him to commit a crime he wasn’t predisposed to commit, he will be
able to invoke the duress or entrapment defenses.
Critics suggest still other reasons for burying the outrageous governmental
conduct defense. They say it amounts to “circumvention” of the key limitation the
Supreme Court has placed on the entrapment defense by focusing judicial attention on the
government’s conduct rather than on the defendant’s predisposition, an avenue the
Supreme Court explored and rejected when formulating the entrapment defense. Tucker,
28 F.3d at 1428. They say the defense, though nominally rooted in due process, smacks
of disfavored criminal common law-making by federal courts. They say that the
doctrine’s remedy — exculpation of a defendant who admittedly committed a crime —
sits awkwardly with the Supreme Court’s instruction that such exclusionary-rule like
remedies should be a last resort rather than an immediate impulse. See United States v.
Van Engel, 15 F.3d 623, 631-32 (7th Cir. 1993), abrogated on other grounds by United
States v. Canoy, 38 F.3d 893, 902 (7th Cir. 1994).
Critics worry, too, that the defense isn’t susceptible to judicially manageable
standards. What is “outrageous” enough to warrant relief, in their view, is a question that
can be resolved only by consultation with a judge’s “lower intestines.” Miller, 891 F.2d
at 1273. So, for example, Mr. Dyke and Mr. Steele explained at oral argument that they
aren’t outraged by sting operations directed against public officials. But they also
suggested that they are offended by similar sting operations directed against “low-level”
6 drug dealers (no doubt having themselves in mind). Others might not be troubled by
either of these kinds of operations but might be offended instead by ones that risk
injuring innocent bystanders (say, when the government sets up a fencing operation that
creates demand for criminals to steal). Id. Others still might not be worried by any of
these possibilities but might be upset when the government engages in or encourages
immorality (say, when the government offers access to sexual favors in order to elicit
incriminating information from a target). Id. In the end, any limits that might be
imposed on governmental conduct, critics suggest, are simply indeterminate and so more
rightly the province of legislatures than courts.
Finding criticisms like these persuasive, two circuits have disavowed the defense
altogether. See Tucker, 28 F.3d at 1426-27, 1428; Boyd, 55 F.3d at 241. Another has
questioned its only case applying the doctrine to afford a defendant relief. United States
v. Nolan-Cooper, 155 F.3d 221, 230 (3d Cir. 1998) (noting that the defense there is
“hanging by a thread”). Others circuits still, and we find ourselves in this camp,
recognized the doctrine’s potential viability in the immediate aftermath of Russell and
have so far declined to inter it formally, even while they have yet to find a single case
where the defense applies. One might call this the never say never camp — or at least the
don’t-say-never-if-you-don’t-have-to camp. See e.g., United States v. Santana, 6 F.3d 1,
4 (1st Cir. 1993) (declining to bury the defense but calling it “moribund” and refusing to
apply it to the case at hand); United States v. Jones, 13 F.3d 100, 104 (4th Cir. 1993)
(same); United States v. Jayyousi, 657 F.3d 1085, 1111-12 (11th Cir. 2011) (same).
7 That isn’t to suggest the doctrine lacks its defenders. Some commentators suggest
it is a critical safeguard against ever inviting the day when our government finds itself at
liberty to enlist everyone to spy on everyone else, a sort of hedge against a bleak
totalitarian future. See, e.g., John David Buretta, Note, Reconfiguring the Entrapment
and Outrageous Government Conduct Doctrines, 84 Geo. L.J. 1945, 1975 (1996); Paul
Marcus, The Due Process Defense in Entrapment Cases: The Journey Back, 27 Am.
Crim. L. Rev. 457, 465 (1990); Stephen A. Miller, Comment, The Case for Preserving
the Outrageous Government Conduct Defense, 91 Nw. U. L. Rev. 305, 327-28 (1996);
Harris v. United States, 331 U.S. 145, 173 (1947) (Frankfurter, J., dissenting) (“Nothing
less is involved than that which makes for an atmosphere of freedom as against a feeling
of fear and repression for society as a whole.”).
Neither, on this account, is the entrapment defense up to the task. The entrapment
defense has been construed as statutory and so might be legislatively withdrawn anytime.
See Russell, 411 U.S. at 432-33; Miller, supra, at 338. It protects only those who lack
criminal predisposition, allowing governmental conduct to go unchecked in cases where
criminally minded defendants are involved. See Miller, supra, at 328-29, 372. Instead of
offending the separation of powers, defenders suggest the outrageous government
conduct defense protects it. Courts have an interest in preventing their processes from
being used to legitimize and perpetuate offensive executive conduct, in assuring public
confidence in the administration of law. On this view, individuals pursuing the defense
in court are not so much usurpers of legislative authority as guardians of the judicial
8 process. See e.g., Rochin v. California, 342 U.S. 165, 169-70 (1952) (Frankfurter, J.);
United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973) (Friendly, J.).
While it’s admittedly a hard thing to find a federal circuit case using the doctrine
to strike down a conviction, defenders suggest this is only because our society (happily)
hasn’t degenerated to the point where it often needs to be invoked. The significance of
this due process guarantee lies not in how often it is successfully asserted but in the
assurance it gives us all that the law imposes meaningful boundaries on the power of
government. While critics may be right that the boundary lines can be difficult to
discern, defenders reply that the job of policing them is no less important for it. See
Miller, supra, at 339-40.
For our part, we avoid taking sides in this debate today. This isn’t to say we are
entirely convinced that our prior cases, cases discussing the doctrine but never using it to
grant relief, necessarily bind us to accept the doctrine’s viability after Hampton and
Payner. Some claim, with some degree of plausibility, that discussions of the defense in
cases like these are no more than “speculative” (Appellee Supp. Br. at 3.), or “dicta”
(Tucker, 28 F.3d at 1424-25), or both (Jayyousi, 657 F.3d at 1111), given that relief is
never granted. Neither in declining to take up sides do we mean to suggest we are more
or less persuaded by the critics or defenders of the doctrine. Rather, we decline to take
sides only because in this case — as in so many cases before it — the right answers to the
hard questions about the doctrine just don’t matter. Even spotting (without granting) the
defendants before us their claimed defense’s bona fides, we can offer them the assurance
9 that their convictions are legally sound and they are entitled to no relief. However vital
the doctrine may or may not be, we are confident the government has not crossed any
boundary line here.
As articulated by this circuit, a defendant asserting the outrageous governmental
conduct defense bears the burden of proving either “(1) excessive government
involvement in the creation of the crime, or (2) significant governmental coercion to
induce the crime.” United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994).
Admittedly, it’s unclear what analytically additive work the second of these two options
plays, separate from the duress or entrapment defenses. But the defendants in this case
stop short of alleging coercion and, in any event, we consider the question of entrapment
shortly, so we may lay that complication aside.
The remaining question, what constitutes “excessive governmental involvement in
the creation of the crime,” is, of course, hardly a self-defining inquiry. But our cases
suggest at least a few guiding principles and they prove more than enough to allow us to
resolve this case with confidence.
In the first place, we naturally examine the government’s conduct. We have said,
however, that cause to worry exists only when the government “engineer[s] and direct[s]
the criminal enterprise from start to finish.” Id. at 1521 (alterations in original). By
contrast, we have indicated that the government is free “to infiltrate an ongoing criminal
enterprise,” and “to induce a defendant to repeat or continue a crime or even to induce
him to expand or extend previous criminal activity.” United States v. Mosley, 965 F.2d
10 906, 911 (10th Cir. 1992). As part of its effort to induce a suspect to “repeat, continue, or
expand criminal activity,” moreover, we have said “the government can suggest the
illegal activity,” “can provide supplies and expertise for the illegal activity,” and “can act
as both supplier and buyer in sales of illegal goods.” Id. at 911-12. Now, admittedly,
trying to discern where inducing the expansion of an ongoing criminal enterprise ends
and engineering and directing a criminal enterprise from start to finish begins may be a
tricky business. But it is the business our cases suggest, and we can at least be sure of
this: the fact the government induces a defendant who is already engaged in a criminal
enterprise to commit a new “crime” subject to some additional criminal sanction is not by
itself enough to warrant relief. Neither is it enough that the government offers supplies
and expertise necessary to facilitate the new crime.
Our cases also take into consideration the past and current criminal activities of
the defendant. Because the inquiry, we have said, turns in part “on the connection
between the crime prosecuted and the defendant’s prior conduct,” id. at 913 (emphasis
added), more aggressive law enforcement techniques are permissible against those who
already have a history of engaging in related crimes than those without. Compare
Pedraza, 27 F.3d at 1522 (although “government was heavily involved in the cocaine-
smuggling plan,” defendants “had an extensive drug trafficking history”), with United
States v. Sandia, 188 F.3d 1215, 1219-20 (10th Cir. 1999) (no evidence of prior criminal
history). Neither have we examined only the defendant’s prior conduct before the
government’s intervention. Our cases have often looked as well to how eagerly and
11 actively the defendant himself participated in the current crime charged, often if not
always finding this an important and decisive factor. Indeed, in some ways this inquiry
seems a necessary corollary, perhaps even the flip side, of our inquiry into whether the
government engineered and directed the charged crime from start to finish. See Mosley,
965 F.2d at 913 (emphasizing that the defendant “had several days to decide voluntarily
whether to” participate in the crime); Pedraza, 27 F.3d at 1522 (emphasizing degree of
defendant’s involvement in the crime in question); United States v. Diaz, 189 F.3d 1239,
1245-46 (10th Cir. 1999) (refusing to find outrageous governmental conduct because of
defendant’s predisposition to commit the charged crime).
One may wonder whether examining the defendant’s past and current conduct
reintroduces the question of predisposition, and in this way leads the outrageous conduct
defense to overlap (again) at least in part with entrapment. But our existing cases suggest
that looking to the defendant’s predisposition, his past and current conduct, as well as the
government’s behavior, is appropriate because what qualifies as outrageous governmental
conduct depends on an appreciation of the “totality of the circumstances” and is reserved
“for only the most egregious circumstances,” triggered only when the circumstances are,
when viewed in whole, “shocking, outrageous, and clearly intolerable.” Mosley, 965
F.2d at 910. On this view, predisposition is a reasonable consideration because it “speaks
to the proportionality of the government’s conduct.” Buretta, supra, at 1982. What’s
outrageous conduct by the government depends in part on who the government is dealing
with: “[e]xtreme government inducement is more troubling when it targets the
12 nonpredisposed . . . [s]imilarly, if the defendant is already involved in criminal activity
similar to the type of crime the government is attempting to induce him to commit, then
the government’s conduct is a less important consideration.” Id. The partial overlap with
the entrapment doctrine might be said to be unremarkable, too, given that the defenses
have separate sources — one statutory, the other due process — and it is hardly unknown
for due process inquiries both to be context sensitive and to duplicate in part work done
by statutes. See, e.g., Russell, 411 U.S. at 431-33; Cafeteria & Rest. Workers Union,
Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961) (Due process “is not a
technical conception with a fixed content unrelated to time, place and circumstances.”).
If, as we have said many times, any due process defense in this arena sets the outermost
bounds of acceptable executive conduct, it would seem sensible as well that it would take
account of all facts potentially bearing on a fair assessment of that conduct. Even so, the
overlap between the doctrines remains incomplete and some additional work might be
done by the outrageous government conduct defense: the defense may take account of
predisposition even as it leaves open at least the possibility of relief in the presence of
predisposition, something entrapment does not.
With these guiding principles distilled from our existing case law we return to Mr.
Dyke and Mr. Steele and quickly find they preclude relief.
To begin, the government’s conduct here was pretty prosaic stuff for undercover
sting operations. The agents sometimes brought the defendants beer. They offered to
exchange items like antifreeze or a fuel pump for contraband. They provided
13 counterfeiting equipment and the initial batch of methamphetamine. They claimed the
expertise needed to help the defendants expand their preexisting criminal enterprise. We
don’t doubt all this had the effect of inducing the defendants to commit new crimes and
incur additional criminal exposure. But that, we’ve seen, is not inherently impermissible.
Indeed, this court has regularly approved governmental sting operations involving
governmental conduct equally (and considerably more) aggressive than anything that
took place in this case. See, e.g., Pedraza, 27 F.3d at 1517-19 (government pushed a plan
to smuggle 707 kilograms of cocaine); United States v. Sneed, 34 F.3d 1570, 1574-78
(10th Cir. 1994) (government set up scheme to manipulate penny stock market, netting
$900,000); United States v. Warren, 747 F.2d 1339, 1343 (10th Cir. 1984) (government
“staged phony accidents, prepared false accident reports and traffic tickets, and entered
pleas of guilty to the falsified charges” to convince defendant to falsify medical reports).
Examining “the connection between the crime prosecuted and the defendant[s’]
prior conduct,” Mosley, 965 F.2d at 913, only underscores the problem the defendants
face. The crimes the government promoted are but cousins to ones the defendants were
already busy committing — making meth rather than selling pills and marijuana,
counterfeiting currency rather than forging checks. No doubt the new crimes represented
a notch up in seriousness but neither were they exactly bolts from the blue. Indeed, this
court has already approved a sting operation in which the government encouraged the
defendant, very much as here, to extend his drug trafficking operations from one drug
14 (marijuana) to another more severely regulated one (cocaine). Pedraza, 27 F.3d at 1522.1
Looking to the defendants’ actions and predisposition with respect to the new
crimes only makes an already bad situation worse still. The district court found that Mr.
Steele devised the counterfeiting scheme and hatched the idea to make
methamphetamine.2 Mr. Dyke said he had been “dreaming about” making the drug for
years. The pair offered an undercover agent forged checks and identification documents
so the agent could buy counterfeiting equipment. They sought to buy ingredients for
producing methamphetamine and traded a firearm for needed equipment. They
volunteered the use of a property Mr. Steele owned to house the planned new criminal
operations. Now, to be sure, the defendants argue that they were not the most
sophisticated of criminals, but even accepting that much the actions and words they freely
1 Mr. Dyke seeks to distinguish Pedraza on the basis that a co-defendant in that case did have prior experience distributing cocaine, the drug the government urged the defendants in that case to distribute, while he and Mr. Steele had no prior experience distributing methamphetamine. See Appellant Dyke Reply Br. at 10-11. The difficulty with Mr. Dyke’s argument is that none of the three defendants in Pedraza who alleged outrageous governmental conduct was mentioned to have any prior background with cocaine. 2 Mr. Steele disputes these factual findings. But to overturn the district court’s findings, Mr. Steele must show them to be clearly erroneous — that is, “more than possibly or even probably wrong but pellucidly so.” United States v. Ludwig, 641 F.3d 1243, 1247 (10th Cir. 2011). And this he fails to do. Take by way of example the methamphetamine question. On undercover audio recordings, a government agent said in Mr. Steele’s presence that Mr. Steele came up with the idea. The district court found it significant that Mr. Steele did not attempt to refute the assertion. Before us, Mr. Steele argues that he didn’t say anything because he wasn’t paying attention at the time. We don’t doubt this bare assertion might be credited by a fact-finder. But neither do we doubt that a fact-finder could reasonably discredit the claim, as the district court did.
15 chose do little to help and much to hurt their cause. Indeed, we have found similar facts
about a defendant’s conduct and predisposition distinctly unhelpful to claims of
outrageous governmental conduct. See Pedraza, 27 F.3d at 1522-23 (refusing to find
outrageous governmental conduct where, among other things, the defendant was eager to
participate in the government’s proposed expansion of his drug trafficking operation);
Mosley, 965 F.2d at 913 (same); Diaz, 189 F.3d at 1246 (same).
To all this, the defendants respond by pointing us to a few cases from other
circuits that, they say, help their cause. But we’ve examined those cases and find them
unpersuasive on their own terms. By way of example, the defendants cite United States
v. Twigg, 588 F.2d 373 (3d Cir. 1978). That case, however, has been criticized in its own
circuit. See United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983); United States v.
Jannotti, 673 F.2d 578, 610 n.17 (3d Cir. 1982) (en banc). Even more to the point, it
involved a very different set of circumstances from our own. The idea for the new illegal
activity there came from the government while here, the district court found, it came from
the defendants. The government’s confidential informant there controlled the operation
with minor assistance from the defendants, while here the defendants were well and
eagerly engaged. Prior to the government’s involvement, the defendants there had no
history with illegal drugs, while the same cannot be said of the defendants here. Indeed,
the Third Circuit itself has recently explained that Twigg “distinguished its facts from the
situation where an undercover agent becomes involved in the operation after the criminal
scheme has been created” and found that, for that reason it was “of little help” to
16 defendants (like those before us) who already had a criminal scheme up and running.
Nolan-Cooper, 155 F.3d at 230. We freely acknowledge that the various circuits have
proposed many and various tests for the outrageous governmental conduct defense. One
(otherwise generally sympathetic) commentator has gone so far as to call the situation
“mayhem.” See Buretta, supra, at 1967. But Mr. Dyke and Mr. Steele not only fail
under the test this court has suggested, they have also failed to persuade us that they
might prevail under any other test any other court has suggested.
Without help from their outrageous governmental conduct defense, Mr. Dyke and
Mr. Steele suggest we direct our attention to a few other questions.
Mr. Steele argues he was entrapped. As we’ve alluded to already, a successful
entrapment defense exists when the government (1) induces the defendant to commit an
offense that (2) the defendant was not predisposed to commit. United States v. Ford, 550
F.3d 975, 982 (10th Cir. 2008). Because the jury rejected any entrapment defense at trial,
we may overturn its decision “only if no reasonable jury could have disallowed the
defense,” a daunting standard indeed. United States v. Mendoza-Salgado, 964 F.2d 993,
1002 (10th Cir. 1992).
Neither can we say so much here. A reasonable jury could well have found Mr.
Steele predisposed to manufacture methamphetamine and counterfeit currency. In asking
whether a defendant was “predisposed” to a certain crime, we ask about his “inclination
to engage in the illegal activity . . . [his] read[iness] and willing[ness] to commit the
crime.” United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992). The necessary
17 inclination, this court has said, may be suggested by evidence of the “defendant’s desire
for profit, his eagerness to participate in the transaction, his ready response to the
government’s inducement offer, or his demonstrated knowledge or experience in the
criminal activity under investigation.” United States v. Fadel, 844 F.2d 1425, 1433 (10th
Cir. 1988).
All of this, as we have seen, was present here. Mr. Steele raised the idea of using
counterfeit currency in a large marijuana deal. He was eager to make methamphetamine
and all too aware of the risk and reward calculus, wryly observing that it was either his
path to riches and retirement or a cot and three squares. And he readily agreed to trade a
firearm for ingredients to make the drug. Admittedly, as Mr. Steele emphasizes, he never
personally possessed counterfeiting equipment and he wasn’t personally involved in the
manufacturing or trafficking of methamphetamine. But a reasonable jury could well have
found from the facts presented at trial that he delegated responsibility for day-to-day
operations to Mr. Dyke on these matters, as he did on many others, and thus that he was
not exactly the “‘unwary innocent’” he claimed to be. United States v. Ortiz, 804 F.2d
1161, 1166 (10th Cir. 1986).
Mr. Steele also says the district court erred at sentencing. In 21 U.S.C.
§ 841(b)(1)(A), Congress has directed that anyone who engages in a second controlled
substance offense “after a prior conviction for a felony drug offense” is subject to a
mandatory minimum term of 20 years in prison. The district court found this mandatory
minimum triggered because of Mr. Steele’s 1995 conviction in Kansas state court for
18 conspiring to sell yet another controlled substance, this time cocaine. Mr. Steele says the
court’s use of the 1995 Kansas conviction to enhance his sentence in this case amounted
to legal error because that state court conviction was long ago expunged from his
criminal record as a matter of state law.
Once again, we cannot agree. It is surely true that Mr. Steele’s earlier conviction
was expunged as a matter of state law, just as he says. But as a matter of plain statutory
meaning there’s also no question Mr. Steele has now engaged in a second drug offense
“after a conviction” for a first one. “[E]xpunction under state law,” after all, “does not
alter the historical fact of the conviction.” Dickerson v. New Banner Institute, Inc., 460
U.S. 103, 115 (1983), superseded by statute, Firearms Owners’ Protection Act of 1986,
Pub. L. No. 99-308, 100 Stat. 449, as recognized in Logan v. United States, 552 U.S. 23,
27 (2007). Neither, of course, does state law normally dictate the meaning of a federal
statute, at least absent some evidence Congress sought to defer to and incorporate state
law, and here there is no such evidence before us. Id. at 112; cf. State v. Edmondson, 818
P.2d 855, 859-60 (N.M. Ct. App. 1991) (state refusing to defer to another state’s
expunction when interpreting its own law). Were the rule otherwise, the variance among
state laws would risk disrupting the uniformity of the federal sentencing structure.
Dickerson, 460 U.S. at 121-22; see also United States v. Norbury, 492 F.3d 1012, 1015
(9th Cir. 2007); United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995). Congress
clearly knows, too, how to ensure that expunged convictions are disregarded in later
judicial proceedings: in other statutes it has done just that (e.g., 18 U.S.C. § 921(a)(20)),
19 even as it made no similar effort here.
It is hardly insensible, moreover, to think Congress could have wished to account
for expunged sentences in this particular statutory scheme. If expunging a conviction
from a defendant’s criminal record is designed to offer him the benefit of a fresh start and
yet the defendant returns again into the same very sort of criminal activity, it’s unclear
why a statute aimed at punishing recidivism (as § 841(b)(1)(A) is) would afford the
defendant the benefit of an offer he so manifestly rejected by his own conduct. Usually a
defendant is said to “forfeit the benefits of the expungement for purposes of recidivist
sentencing provisions, at least unless Congress provides otherwise.” United States v.
Law, 528 F.3d 888, 911 (D.C. Cir. 2008); see also United States v. Campbell, 980 F.2d
245, 251 (4th Cir. 1992). And (again) we see no evidence suggesting Congress provided
otherwise here. To the contrary, as best we can tell every circuit to have addressed
§ 841(b)(1)(A)’s meaning agrees it did not. See Law, 528 F.3d at 911 (collecting cases
from Second, Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits).
Mr. Steele rejoins that some of these cases from other circuits permit the
consideration of deferred adjudications or convictions set aside or satisfied in some way,
not ones expunged by state law. But, as it happens, other cases do address convictions
expunged under state law and count them for purposes of § 841(b)(1)(A). See, e.g.,
United States v. Rivera-Rodriguez, 617 F.3d 581, 609-10 (1st Cir. 2010). Besides, the
distinction makes no difference. The question posed by § 841(b)(1)(A) is whether the
defendant was previously convicted, not the particulars of how state law later might have,
20 as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set
aside. To be certain, this isn’t to suggest that the term “conviction” admits no subtleties
of any kind. One might well ask, for example, whether as a matter of federal law itself a
conviction vacated or reversed due the defendant’s innocence or an error of law fairly
qualifies as a “conviction” at all. See, e.g., Dickerson, 460 U.S. at 115; Norbury, 492
F.3d at 1015. But nothing like that complication is present here. Even now, Mr. Steele
does not challenge the lawfulness of his 1995 state conviction. For purposes of federal
law, then, we can be sure that an expunged state conviction is a conviction.
Separately, Mr. Dyke says the court erred by failing to read to the jury a voluntary
intoxication instruction he requested. Voluntary intoxication can be used, of course, as a
mens rea defense to specific intent crimes, and Mr. Dyke was charged with several. See
United States v. Jackson, 213 F.3d 1269, 1291 (10th Cir. 2000), vacated on other
grounds sub nom. Jackson v. United States, 531 U.S. 1033 (2000). Of course, as well, a
defendant is entitled to instructions on defenses supported by sufficient evidence for a
jury to find in his favor. United States v. Davis, 953 F.2d 1482, 1492 (10th Cir. 1992).
The problem is that Mr. Dyke failed to present sufficient evidence to create a
triable question of voluntary intoxication, just as the district court held. Mr. Dyke
pointed only to the fact that undercover agents regularly brought beer to the farm and the
atmosphere felt like a constant party to him. But be that as it may, Mr. Dyke’s evidence
is legally insufficient to warrant a voluntary intoxication instruction, and “insufficient not
because it falls short of the quantum of evidence necessary, but because it is not evidence
21 of the right thing.” United States v. Boyles, 57 F.3d 535, 542 (7th Cir. 1995). In order to
merit an intoxication instruction, a defendant must point to evidence of mental
impairment, impairment to the point that he could not form the mens rea necessary to
commit the crime in question. Id.; see also Jackson, 213 F.3d at 1294; United States v.
Briseno-Mendez, 153 F.3d 728, at *11 (10th Cir. July 17, 1998) (unpublished). Now, no
one doubts that drinking beer in a convivial atmosphere (or any other) can lead to severe
mental impairments. But it’s equally true that drinking beer doesn’t automatically and
always render a person unable to form the mens rea necessary to commit a crime,
rendering him immune to conviction. And problematically for him, Mr. Dyke presented
no expert testimony or facts of any kind before the district court suggesting that his
consumption of alcohol was so great that he could not have formed the mens rea required
to commit the crimes in question. If anything, the evidence at trial ran in just the
opposite direction: surveillance tapes failed to suggest any of the usual signs of
impairment and audio recordings existed in which Mr. Dyke spoke all too coherently and
clearly about his criminal plans. In these circumstances, we simply cannot fault the
district court for holding that Mr. Dyke failed to present sufficient facts to warrant the
instruction he sought.3
Affirmed.
3 Mr. Dyke also brings a claim for ineffective assistance of counsel. Generally, however, claims of this sort should be brought on collateral review rather than direct appeal, see United States v. Hahn, 359 F.3d 1315, 1327 n.13 (10th Cir. 2004) (en banc), and we see no reason to think this case presents an exception.