UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4798
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DON ERWIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Joseph F. Anderson, Jr., District
Judge. (1:11-cr-00111-JFA-2)
Submitted: April 19, 2013 Decided: April 30, 2013
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jason P. Peavy, LAW OFFICE OF JASON P. PEAVY, LLC, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, T. DeWayne Pearson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Gary Don Erwin was convicted of
one court of conspiracy to embezzle money from the United States
and one count of embezzling money in excess of $1000 from the
United States, both in violation of 18 U.S.C. § 641 (2006). On
appeal, Erwin claims that law enforcement engaged in outrageous
conduct during the course of the criminal investigation to such
an extent that it violated his right to due process. The
district court rejected this claim and we affirm.
In United States v. Russell, 411 U.S. 423, 431-32
(1973), the Supreme Court acknowledged that there may be “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[.]” Whether law enforcement’s conduct is so
outrageous as to call for the dismissal of the indictment is a
question of law reviewed de novo. United States v. McClelland,
72 F.3d 717, 721 (9th Cir. 1995). In United States v. Jones, 13
F.3d 100, 104 (4th Cir. 1993), we noted that a “generalized
claim” of outrageous government conduct during the course of a
criminal investigation is difficult to make out. We quoted
United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993) for the
proposition that “the doctrine is moribund; in practice, courts
have rejected its application with almost monotonous
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regularity[.]” We further noted that as a practical matter,
“only those claims alleging violation of particular
constitutional guarantees are likely to succeed.” Jones, 13
F.3d at 104. This court has a “high shock threshold” when there
is a claim of outrageous government conduct. United States v.
Osborne, 935 F.2d 32, 36 (4th Cir. 1991).
We have reviewed the record and conclude that Erwin
has failed to show that law enforcement’s conduct in this case
was so outrageous as to shock the conscience and violate his
right to due process. There is no indication that law
enforcement manufactured evidence or directed a third party to
manufacture evidence. There is also no indication that law
enforcement engaged in unlawful conduct in order to complete the
investigation.
Because we find no outrageous conduct on the part of
law enforcement, we affirm the convictions and sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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