United States v. Doe

FILED
United States Court of Appeals
Tenth Circuit

November 2, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 11-1084
JOHN DOE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

David M. Koppa, Colorado Springs, Colorado, for Appellant.

Barbara S. Skalla, Assistant United States Attorney (John F. Walsh, United States
Attorney, with her on the brief), Office of the United States Attorney, Denver,
Colorado, for Appellee.

Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.
 John Doe pleaded guilty to two drug trafficking charges in a plea bargain. 1

Prior to the plea deal, he filed a motion to dismiss the indictment for breach of an

immunity agreement and outrageous governmental conduct. The district court

denied the motion.

In the plea agreement, Doe did not negotiate a conditional plea in which he

retained the right to appeal the court’s ruling, so he cannot appeal unless he can

establish a basis for us to ignore the appeal waiver. He attempts to do so by

contending (1) the government cannot force the waiver of an immunity agreement

on due process grounds; and (2) even if he could waive immunity, outrageous

government conduct is an implied exception to any appeal waiver. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we find that Doe lacks a basis to bring

the appeal and the facts of the case do not implicate the outrageous governmental

conduct exception. Accordingly, we AFFIRM Doe’s conviction, DISMISS his

appeal, and GRANT his motion to seal the briefs.

I. Background

Doe was incarcerated on unrelated charges at the Weld County jail in

Colorado. He was approached by Stephen Schulz, a detective with the Longmont,

Colorado, Police Department (LPD). Schulz was investigating a local drug

1
Pursuant to appellant’s motion, which we now grant, we will refer to him
as John Doe throughout this opinion. We direct the clerk of court to change the
caption accordingly. We also direct the clerk of the court to seal the entire record
on appeal.

-2-
trafficking organization and believed that Doe could become a confidential

informant (CI) for the LPD for the purpose of providing insider information.

During their first meeting, Doe provided an overall view of the target

trafficking organization and offered information about how well he knew certain

members of the organization. In a subsequent meeting, Doe was taken to the

offices of the LPD, where Schulz laid out the ground rules of a CI relationship.

More specifically, Doe would be required to enter the LPD’s standard form

Working Agreement that it uses with informants.

Provisions of the Agreement required Doe to heed certain rules of conduct.

For instance, he was asked to make the following commitments: “I agree to

strictly abide by and not violate any laws including narcotic and drug laws”; “I

will not sell, deliver, or possess any controlled substances, illegal or illicit drugs,

or any substances . . . at any time”; “I understand that any violations of the code

of conduct, or any violations of law will be fully investigated with an appropriate

action being taken, including criminal prosecution for any criminal violations.”

R., Vol. III at 70–71, 103. Schulz was very specific with Doe, telling him: “you

can’t violate any laws,” id. at 73, and that “participating in the fact of being there

and gaining information . . . is different than participating and gaining

information and then committing crimes on top of that.” Id. at 74. Doe did not

sign the Agreement, ostensibly to protect his identity, but he proceeded to provide

information to Schulz.

-3-
 Doe received his first payment of $160 while he was still in the Weld

County jail, in exchange for information concerning his associates’ phone

numbers, addresses, and automobiles. Once released from jail, Doe was

approached by two members of the organization, who asked him about working

for them distributing cocaine. Doe contacted Schulz about this development. A

few weeks later, in April 2008, Doe provided Schulz with details about an

upcoming three-kilogram cocaine pick-up in New Mexico. On the strength of the

information, one of the members of the organization was arrested. Schulz paid

Doe $500 for this information.

That arrest had consequences. According to Doe, after this arrest, everyone

within the organization “was scared,” and suspicious, since only a handful of

people had known about the cocaine pick-up that led to the arrest. Id. at 22.

After this point, Doe admits that he only passed “bits and pieces” of information

along to Schulz. Id. at 21. Doe also told Schulz that he was going to need to

begin “running ounces of cocaine” in order to alleviate suspicion. Id. at 123.

Schulz testified he told Doe that he “can’t do that,” and that if he did, Doe would

be “on his own.” Id. at 123, 125.

While both Doe and Schulz agree they did not discuss an immunity deal at

this time, Doe claims Schulz told him to “do what you got to do” to “stay in with

these guys,” “[j]ust don’t get in trouble.” Id. at 31. Schulz also told Doe that if

he got pulled over in Longmont to let the local police know that he was working

-4-
with Schulz. Doe later testified he understood this conversation to be an offer of

immunity, but no further discussion was held as to the scope of any immunity

agreement. Schulz testified that he understood the conversation to mean that “he

is not allowed to commit any crimes and if he gets caught doing any crimes he’s

on his own at that point and then we will see where we can go with the DA’s

office . . . depending what the crime is.” Id. at 95.

After the conversation, Schulz and Doe spoke much more infrequently,

with only a handful of conversations between April and November 2008, mostly

for the purpose of “checking on [Doe].” Id. at 110. During this time, Doe

continued working for the organization—picking up and delivering cocaine. But

by then he was being paid in cocaine that he resold for income. By then, Doe also

admitted he was no longer furnishing complete information to Schulz. At the

same time, Schulz began working with the Front Range Drug Task Force, a

federal unit involving the Drug Enforcement Administration (DEA). The task

force was collecting evidence for the purpose of supporting an application for a

wiretap on the organization. The wiretap application was approved, and the

wiretap began in the fall of 2008.

On October 22, 2008, officers overheard Doe on the wiretap trying to

collect money from a drug customer for the organization, and informed Schulz.

Schulz carefully documented his conversations with Doe at this time, ultimately

recording thirteen contacts between November 14, 2008 and January 5, 2009.

-5-
 In December 2008, Doe received his final two payments from Schulz. In

both instances, Doe provided intelligence to Schulz about members of the

organization, receiving $170 and $80 in exchange. The $170 payment was

provided for the purpose of getting Doe’s car out of an impound lot in a

neighboring town. Schulz’s notes reflect that he knew the car was being used by

the organization and that Doe was returning it for the purpose of trying to pay off

a debt.

On December 23, 2008, Schulz was informed that a phone call involving

Doe had been intercepted. He learned that Doe was going to a nearby house and

Schulz was asked to do surveillance on the residence. Doe proceeded to the

house for the purpose of picking up four ounces of cocaine. While there, Doe

thought that he spotted two unmarked police cars nearby, but proceeded to make

the pick-up anyway. After making the pick-up, Doe called Schulz and asked

whether he knew of any undercover vehicles that might be following him. Schulz

was actually driving the car following Doe, but he only told Doe that the gang

unit might be in the area. This evasion was done “to protect the integrity of the

case.” Id. at 95.

Despite knowing that Doe was directly involved in criminal activity, Schulz

continued accepting information from Doe, until Doe’s arrest for an unrelated

matter in February 2009. Once he was arrested, Doe claimed he believed he was

still involved in a CI relationship with Schulz, and continued to provide

-6-
information about the organization, until he was indicted in this case in April

2009.

After his indictment, Doe filed a motion to dismiss the indictment on two

grounds. First, he contended the government breached an immunity agreement,

which arose from his relationship with Schulz. He also argued the government’s

conduct in encouraging his ongoing relationship with the organization and the

crimes he committed to maintain his cover amounted to outrageous conduct,

justifying dismissal of the charges. He asked the district court to dismiss the

indictment to protect the integrity of the judicial process.

The district court held a hearing on the motion and received testimony from

both Doe and Schulz. The district court denied the motion. The court found the

evidence did not support the claim that an immunity agreement had been formed.

Although Schulz should have terminated the confidential relationship once he

knew that Doe was committing crimes, Schulz unambiguously warned Doe not to

commit crimes in his role, and therefore the relationship was “limited to the

exchange of information for money” and did not include either an express or an

implied promise of immunity. R., Vol. II at 82.

As to the outrageous governmental conduct claim, the district court

concluded that, while Schulz “undoubtedly contributed to [Doe’s]

misunderstanding,” id. at 87, Doe failed to sustain his burden of showing

governmental creation of the crime and substantial coercion. In sum, the court

-7-
concluded that while Schulz’s failure to terminate the relationship once he knew

that Doe was committing crimes was “not to be applauded,” it was not unlawful.

Id.

Doe chose to enter unconditional guilty pleas, pursuant to a written

agreement, to two of the counts against him. In exchange, two additional counts

were dismissed. He was sentenced to 48 months’ imprisonment and one year of

supervised release.

II. Discussion

We consider two issues: (1) whether Doe waived his right to challenge the

district court’s rulings when he entered a plea agreement, and (2) whether the

government’s conduct nonetheless provides grounds to vacate the plea agreement

and dismiss the indictment.

A. Waiver of Claims

Doe first argues that the district court wrongly concluded no immunity

agreement had been reached and as a matter of law he is entitled to its protection

from prosecution. Doe advanced a similar argument in the district court in a

motion to dismiss. Yet Doe then entered an unconditional guilty plea, in which

he admitted: “I know that if I plead guilty, there will be no appellate review of the

question of whether or not I am guilty . . . . [and] that any . . . appellate review

will extend only to the question of whether a proper sentence was imposed.”

-8-
 By entering into an unconditional guilty plea agreement, a defendant

normally waives the right on appeal to attack the district court’s denial of a

motion to dismiss. Generally, once “a criminal defendant has solemnly admitted

in open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v.

Henderson, 411 U.S. 258, 267 (1973). He “may only attack the voluntary and

intelligent character of the guilty plea by showing that the advice he received

from counsel was not within the [applicable] standards.” Id.

Doe makes two arguments to avoid a waiver problem. First, he contends

his claim relates to the subject matter jurisdiction of the district court and

therefore cannot be waived. Second, he argues that an exception to the waiver

rule exists for certain categories of constitutional violations, which cannot be

waived by a guilty plea, and that the violation he suffered fits within this

exception.

Both of these arguments are similar to those we recently addressed in

United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012). In De Vaughn, we

considered claims raised by a defendant who had posted hoax anthrax letters to a

number of public officials and then pleaded guilty to mailing threatening

communications in violation of 18 U.S.C. §§ 871, 875(c), 876(c), and 1038(a)(1).

Id. Despite entering an unconditional guilty plea, the defendant attacked the

-9-
validity of the charges against him by arguing that his conduct did not constitute a

“threat” for purposes of the statute and that the statute, as applied to him, violated

his First Amendment rights. Id.

Similar to Doe, the defendant in De Vaughn attempted to avoid the waiver

problem created by his guilty plea by suggesting that these alleged defects in the

indictment would have deprived the district court of subject matter jurisdiction.

Id. at 1146. Further, just as Doe asks us to consider the jurisdictional import of

his due process claim, in De Vaughn, we analyzed the same issue in the context of

the defendant’s First Amendment challenge. Id. at 1149–50.

Our holding in De Vaughn is fatal to Doe’s attempts to avoid waiver. First,

De Vaughn demonstrates how Doe erroneously characterizes his claim as related

to subject matter jurisdiction and is therefore non-waivable. In support of this

proposition, Doe relies on United States v. Cotton, 535 U.S. 625, 630 (2002).

While the Supreme Court in Cotton did reiterate the uncontroversial proposition

that attacks on subject matter jurisdiction are non-waivable, id. at 630, Doe does

not suggest how subject matter jurisdiction is implicated in his case.

Further, as we noted in De Vaughn, the Court in Cotton also held that

“defects in an indictment do not deprive a court of its power to adjudicate a case.”

535 U.S. at 630; see also De Vaughn, 694 F.3d at 1147. In other words, a defect

in an indictment does not deprive a court of subject matter jurisdiction: any

-10-
allegations that an indictment is defective are non-jurisdictional and waivable. 2

Thus, although it is unclear whether Doe raises this particular claim, to the extent

he suggests that the indictment issued against him is defective because of

problems with the immunity agreement, Cotton is of no aid to his waiver problem.

To be sure, Doe may have assumed that he needed to characterize his claim

as jurisdictional in order to avoid waiver. Such an assumption might have been

warranted before De Vaughn, when we reconsidered our oft-cited holding in

waiver cases that “a voluntary and unconditional guilty plea waives all non-

jurisdictional defenses.” De Vaughn, 694 F.3d at 1145 (emphasis added) (quoting

United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003)). As we noted in De

Vaughn, however, this holding is technically incorrect: the Supreme Court has

recognized two forms of non-jurisdictional claims that are not waived by a guilty

plea. Id.

The first exception, recognized by the Supreme Court in Menna v. New

York, 423 U.S. 61, 61–62 (1975) (per curiam), relates to a double jeopardy claim

that a defendant raises on appeal after pleading guilty. In Menna, the New York

Court of Appeals had held that such a claim was waived as a result of the guilty

2
Though not relevant for purposes of this case, as we noted in De Vaughn,
the Eleventh Circuit has interpreted the Cotton holding to cover only a subset of
cases involving jurisdictional attacks on defective indictments. See 694 F.3d at
1147–49 (citing United States v. Peter, 310 F.3d 709 (11th Cir. 2002)). We
reasoned in De Vaughn that the Eleventh Circuit’s holding cannot be squared with
Cotton. Id.

-11-
plea. The Supreme Court reversed, holding that while there were circumstances

under which a double jeopardy claim could be waived with a guilty plea, such

circumstances did not apply for a charge that “judged on its face . . . the state may

not constitutionally prosecute.” Id.

The Court clarified the Menna holding in United States v. Broce, 488 U.S.

563 (1989). In Broce, defendants who pleaded guilty to two separate counts of

conspiracy relied in part on Menna in an attempt to vacate their sentences. Id. at

565-67. They argued that the schemes alleged in their indictments constituted

only a single conspiracy and thus they had not waived their claim that double

jeopardy applied. Id. Yet the Court in Broce denied the relief the defendants

sought, reasoning that while Menna involved an indictment that was “facially

duplicative of the earlier offense of which the defendant had been convicted,” the

defendants’ claim related to “indictments that on their face . . . described separate

conspiracies.” Id. at 575–76.

The Supreme Court recognized a second exception to the waiver rule in

Blackledge v. Perry, 417 U.S. 21 (1974), where a prosecutor indicted a defendant

on a felony charge after the defendant had exercised his right to appeal a

conviction to a misdemeanor charge arising from the same conduct. Id. at 22–23.

Although the defendant pleaded guilty to the second charge, the Court held that

“it was not constitutionally permissible for the State to respond to [the

defendant’s] invocation of his statutory right to appeal by bringing a more serious

-12-
charge against him . . . .” Id. at 28–29. Under such circumstances, the Court

reasoned, “[t]he very initiation of the proceedings against [the defendant] . . .

operated to deny him due process of law.” Id. at 30–31. The Court held that in

this context, the guilty plea did not foreclose the defendant’s attack on his

conviction through a federal writ of habeas corpus. Id. at 31.

In short, then, as we noted in De Vaughn, we are normally required to

accord a guilty plea preclusive effect. Id. at *3. Yet Blackledge and Menna

create “[a] narrow exception . . . for two constitutional claims – due process

claims for vindictive prosecution and double jeopardy claims that are evident

from the face of the indictment.” Id. (citing Blackledge, 417 U.S. at 30–31, and

Menna, 423 U.S. at 62 n. 2). 3

Doe suggests that his circumstances are similar to those of the defendants

in Blackledge and Menna and that a non-jurisdictional exception to the waiver

rule should therefore apply here. Yet the unique factual circumstances and

3
There might be some tension between our holding in De Vaughn and the
Supreme Court’s holding in Broce. In Broce, the Court seems to have suggested
that a defendant challenging his guilty plea on double-jeopardy grounds could
rely not only on the face of the indictment but rather on the “indictment[] and the
existing record.” 488 U.S. at 576 (emphasis added); see also Broce, 488 U.S. at
582 (Blackmun, J., dissenting) (“nothing in Blackledge or Menna indicates that the
general constitutional rule announced in those cases was dependent on the fortuity that
the defendants’ double jeopardy claims were apparent from the records below without
resort to an evidentiary hearing”) (emphasis added). Doe also suggests that Broce
allows this court to consider both the indictment and the record. As discussed below,
however, Doe is not raising a double jeopardy claim in this instance; thus, we do
not need to determine the precise scope of the authorities that a defendant can
rely upon in mounting such a challenge to the constitutionality of a guilty plea.

-13-
narrow holdings of these cases are easily distinguished from Doe’s case.

First, Doe argues that Blackledge stands for the broad proposition “that due

process claims that implicate the Defendant’s right to be brought in [sic] court are

not waived.” Aplt. Br. at 2. Yet such a broad rule would allow any defendant to

manufacture any sort of due process violation as a means of undermining the

finality of a guilty plea. This reading of Blackledge also ignores the fact that the

Court in that case based its holding on the violation of the defendant’s right to

appeal, a right not implicated here. See 417 U.S. at 25–27. Rather than creating

a broad means of circumventing the finality of a guilty plea for any alleged

violation of due process, the Court in Blackledge “held that the potential for

prosecutorial vindictiveness against those who seek to exercise their right to

appeal raised sufficiently serious due process concerns to require a rule

forbidding the State to bring more serious charges against defendants in that

position.” Broce, 488 U.S. at 574.

Doe’s reliance on Menna is similarly unpersuasive, as nothing in the record

or indictment here suggest that Doe is being placed in jeopardy twice for the same

offense. Doe attempts to extend the holding of Menna beyond the double

jeopardy context, yet he cites no authority for such a proposition and we can find

none. Thus, this case implicates neither of the non-jurisdictional exceptions to

the general waiver rule recognized by the Supreme Court in Blackledge and

Menna.

-14-
 Because Doe does not raise any jurisdictional challenge and cannot rely

upon Blackledge or Menna, we agree with the government that this case is similar

to United States v. Wright, 43 F.3d 491 (10th Cir. 1994). In that case, the

defendant pleaded guilty to drug charges even though he had entered into an

informal immunity agreement with the government. Id. at 493. He later filed a

petition for a Writ of Error Corum Nobis, claiming that his due process rights

were violated by the government’s breach of the agreement. Id. In rejecting the

defendant’s claim, we noted:

In this case, appellant was fully cognizant of the alleged
governmental misconduct when he entered his plea. Instead of
pursuing these claims further, he decided to accept the prosecution’s
plea bargain. By doing so, appellant waived any claim that the
government breached its non-prosecution agreement with him. While
appellant’s allegations, if true, demonstrate troublesome conduct by
the prosecution, they do not call into question the knowing and
voluntary nature of his plea. Appellant is therefore barred from
raising such a claim in his section 2255 petition.

Id. at 494. Wright is on point and controls this case: just as in Wright we must

give preclusive effect to Doe’s guilty plea. 4

Finally, even if Doe’s claim was not precluded by his guilty plea, it would

4
Doe tries to distinguish Wright, on the ground that, unlike Wright, there
was no “bargained-for consideration,” in exchange for his guilty plea. Aplt.
Reply at 4. This distinction is inaccurate. In exchange for his guilty plea, the
government agreed to dismiss two additional counts of the indictment and to
allow Doe to plead guilty to only two counts. Further, Doe does not dispute that
he made a counseled, strategic decision to plead guilty instead of proceeding to
trial. This choice, which was Doe’s to make, prevents him from rehabilitating his
claim on appeal.

-15-
still fail. The district court found as a factual matter that no express or implied

immunity agreement had been formed, nor could Doe reasonably rely on Schulz’s

representations about his criminal conduct. The district court thoroughly

investigated the factual allegations, considered the implications for the case as a

whole, and found that, while some of Schulz’s behavior was troublesome, he at no

point communicated an offer of immunity to Doe or reasonably induced Doe to

believe one existed. 5 Thus, Doe cannot even sustain the factual predicate for a

constitutional challenge, even if those cases more broadly applied to implied

immunity arrangements.

Accordingly, Doe has no basis to challenge the waiver of appeal in his plea

agreement.

B. Outrageous Government Conduct

In the alternative, Doe argues that even if he waived his right to appeal, the

government’s conduct here was so egregious, we should exercise our discretion to

ignore the appeal waiver and dismiss the indictment. Again, we disagree.

As an initial matter, a defendant can waive claims that even implicate a

charge of government misconduct. For example, a defendant can plead guilty to

charges where he believes the facts would support an entrapment defense or,

5
For the same reasons, we would reject Doe’s multiple contract
claims—estoppel, unjust enrichment, ratification—because the district court
found insufficient facts to support reasonable reliance since Schulz continuously
cautioned Doe against engaging in criminal activity.

-16-
alternatively, choose to proceed to trial, despite a good argument for entrapment.

Additionally, this is merely a defense with factually complex requirements, rather

than a matter of jurisdiction or due process that cannot be waived. See United

States v. Mosley, 965 F.2d 906, 909–10 (10th Cir. 1992). Thus, we conclude that

Doe’s guilty plea waives his right to independently challenge his claims of

government misconduct.

But even if we reached the merits, his claim would still fail. We have

recognized in certain circumstances that outrageous government conduct can be

grounds for dismissal of criminal charges. The outrageous conduct defense is an

outgrowth of the entrapment doctrine and shares some similarities. United States

v. Russell, 411 U.S. 423, 428–30 (1973). While entrapment focuses on the

defendant’s readiness to commit crimes, the outrageous conduct defense focuses

on the government’s conduct. Mosley, 965 F.2d at 909.

Accordingly, “[t]he cases on outrageous conduct suggest two factors that

form the underpinnings for most cases where the outrageous conduct defense has

been upheld: government creation of the crime and substantial coercion.” Id. at

911. While “no specific rule has been formulated to determine when the

involvement of the government in a criminal enterprise becomes excessive,” id.,

“[t]he outrageous conduct defense . . . is an extraordinary defense that will only

be applied in the most egregious circumstances. In order to prevail, the defendant

must show that the challenged conduct violated notions of fundamental fairness

-17-
and is shocking to the universal sense of justice.” United States v. McKissick,

204 F.3d 1282, 1294 (10th Cir. 2000) (internal quotation omitted).

As to governmental crime creation, we have held “it is not outrageous for

the government to induce a defendant to repeat or continue a crime or even to

induce him to expand or extend previous criminal activity.” Mosley, 965 F.2d at

911; see also United States v. Biswell, 700 F.2d 1310, 1313 (10th Cir. 1983)

(permitting the act of an agent suggesting that the defendant illegally sell food

stamps). In fact, the government can provide supplies and expertise, see United

States v. Belzer, 743 F.2d 1213, 1218 (7th Cir. 1984), or act as both supplier and

buyer in sales of illegal goods. See Hampton v. United States, 425 U.S. 484, 485

(1976).

In this case, Schulz persuaded Doe to serve as a CI because he was already

involved with the organization—clearly not an inducement to create crime. It

was at most an inducement to extend criminal activity, which is not prohibited.

See United States v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994) (finding that it is

an extraordinary defense reserved for only the most egregious circumstances; it is

not to be invoked each time the government acts deceptively or participates in a

crime that it is investigating); see also United States v. Nichols, 877 F.2d 825,

827 (10th Cir. 1989) (finding it is not outrageous for the government to infiltrate

an ongoing criminal enterprise).

Likewise, to establish governmental coercion, a defendant must show

-18-
conduct that “must be particularly egregious before it will sustain an outrageous

conduct defense.” Mosley, 965 F.2d at 912. We have previously rejected

defendant theories premised on governmental coercion when a financial

inducement was offered to someone with little annual income, United States v.

Sandia, 188 F.3d 1215, 1220 (10th Cir. 1999), when narcotics were offered at a

“shockingly cheap” price, Mosley, 965 F.2d at 912–13, or when narcotics were

distributed to a known addict, United States v. Harris, 997 F.2d 812, 816 (10th

Cir. 1993), among others. The hallmark of governmental coercion is only when

the government “engineers and directs the criminal enterprise from start to

finish.” United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). In fact,

the defense has only been successful a few times, and never in this circuit. See

Harris, 997 F.2d at 816 n.3 (detailing two successful applications; in both cases

the government agent engineered the crime and provided indispensable resources

for the crime to be successful, see United States v. Twigg, 588 F.2d 373, 380–81

(3d Cir. 1978); Greene v. United States, 454 F.2d 783, 786–87 (9th Cir. 1971)).

The conduct Doe complains of here does not approach this level of

government coercion. Doe points to United States v. Gardner, 658 F. Supp. 1573

(W.D. Pa. 1987), in which an informant repeatedly asked the defendant to assist

him in obtaining cocaine. The defendant had no criminal record and had never

been involved in the use or distribution of drugs. While he initially refused, the

defendant eventually assisted the informant in obtaining quantities of drugs, but

-19-
did not profit from any of the transactions. The court found that the defendant

“had no prior involvement with drugs,” and the government was the defendant’s

“only client.” Gardner, 658 F. Supp. at 1575–76. The court concluded that the

informant “undeniably badgered, cajoled, induced, inveigled and utilized his

position as a postal employee to acquire [the defendant’s] friendship and utilized

promises of assisting him in repairing his car to induce [the defendant’s]

cooperation in . . . obtaining drugs for [the informant’s] personal use.” Id. at

1576.

Nothing of the sort was going on here. Doe was already involved with a

criminal organization and had been arrested on other charges many times. As we

have previously held, “[i]t is not outrageous for the. government to infiltrate an

ongoing criminal enterprise or to induce a defendant to repeat, continue or even

expand previous criminal activity. . . . it is permissible for the government to

suggest the illegal activity, provide supplies and expertise, and act as both a

supplier and buyer of illegal goods.” Pedraza, 27 F.3d at 1521. “This court has

recognized the defense of outrageous government conduct, but has never rendered

a decision upholding such a claim.” United States v. Worthon, 520 F.3d 1173,

1181 (10th Cir. 2008). The facts of this case do not warrant a departure from our

prior cases.

Accordingly, even if it were not waived, the outrageous government

conduct exception does not apply.

-20-
 III. Conclusion

Based on the foregoing analysis, we AFFIRM Doe’s conviction, DISMISS

his appeal, and GRANT his motion to seal the briefs.

-21-