United States District Court, D. Nebraska
M. Gerrard United States District Judge
defendants, Lafi Jafari and Marylou Gruttemeyer, have
objected (filing 85, filing 87) to the Magistrate Judge's
Findings and Recommendation and Order (filing 80)
recommending that the defendants' Motions to Suppress
(filing 38; filing 44), Motions to Dismiss Count 7 of the
Indictment (filing 40; filing 42), Motions to Dismiss for
Outrageous Government Conduct (filing 36; filing 43), and
Gruttemeyer's Motion to Sever (filing 34), be denied. The
Court has conducted a de novo review of the motions
pursuant to 28 U.S.C. § 636(b)(1). The Court concurs in
the Magistrate Judge's factual findings, analysis, and
conclusions of law. The Court therefore finds the
defendants' objections to be without merit, and will
adopt the Magistrate Judge's findings and recommendation.
support for their objections, the defendants, generally, rely
on two cases: United States v. Brooks, 215 F.3d 842
(8th Cir. 2000) and United States v. Dyke, 718 F.3d
1282 (10th Cir. 2013). Those cases, however, are
distinguishable from the facts at issue here.
instance, the defendants cite Brooks to suggest that
the government's "coercive tactics" amounted to
outrageous government conduct. See filing 86 at 17.
But that reliance is misplaced. Indeed, Brooks is an
entrapment case, not an outrageous government conduct case.
See id.And although entrapment and outrageous
government conduct are related, they are not the same. In
particular, the defense of entrapment focuses on the
predisposition of the defendant to commit the crime,
whereas the defense of outrageous government conduct focuses
on the government's actions. United States
v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999).
outrageous government conduct warrants dismissal only when
the conduct "falls within the narrow band of the most
intolerable government conduct." United States v.
Bugh, 701 F.3d 888, 894 (8th Cir. 2012). That is, the
government's conduct "must shock the conscience of
the court." United States v. King, 351 F.3d
859, 867 (8th Cir. 2003). But because Brooks is not
an outrageous government conduct case, it does not address
any of these principles. Stated another way, Brooks
does not discuss how, if at all, the government's actions
"shock[ed] the conscience" of the court.
Id. Nor does it address whether the government's
conduct fell "within the narrow band of the most
intolerable government conduct" warranting dismissal.
See Bugh, 701 F.3d at 894.
even if it did, the facts at issue in Brooks are
distinguishable from those at issue here. In Brooks,
a confidential informant for the government sold the
defendant drugs. Brooks, 215 F.3d at 847. The
confidential informant then induced the defendant to sell
those same drugs back to a different government agent.
Id.In order to convince the defendant to sell the
drugs, the informant resorted to "accosting [the
defendant] time and again demanding that [the defendant]
return some heroin[.]" Id. The informant even
threatened to cut off the defendant's heroin supply if he
failed to give a portion of the drugs back. Id. That
level of government pressure, the Court of Appeals said, is
here, as the Magistrate Judge correctly points out, the
government did not pressure the defendants into paying the
government's informant. To the contrary, the defendants
provided the informant with envelopes of cash on at least
three occasions before the government ever
encouraged the informant to ask the defendants for money.
Filing 74 at 12, 14, 22-23, 139; see also filing 80
at 11. And even once the government did take a more
"active" role in the informant's interactions
with the defendants, the government's conduct still did
not rise to the level of outrageous government
conduct.Filing 74 at 139.
brings the Court to the second case relied on by the
defendants, Dyke, 718 F.3d 1282. But the Tenth
Circuit's decision in Dyke does not help the
defendant either. In fact, Dyke actually undermines
the defendants' claim of outrageous government conduct.
Specifically, the Court of Appeals concluded that buying the
defendants beer, offering to exchange items for contraband,
claiming they needed the defendants' expertise to expand
their own criminal enterprise, and providing the defendants
with drugs and equipment, were neither "inherently
impermissible" nor outrageous government conduct.
Id. And the Court of Appeals bolstered that
conclusion by noting that it had previously upheld government
sting operations involving conduct equally, if not more,
oppressive. See e.g., United States v.
Pedraza, 27 F.3d 1515, 1517-19 (10th Cir. 1994)
(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).
end, if staging phony accidents, preparing false accident
reports, entering pleas of guilty to the falsified charges,
Warren, 747 F.2d at 1343, providing the defendants
with drugs and equipment, Dyke, 718 F.3d at 1290,
and setting up various fraudulent schemes, Sneed, 34
F.3d at 1574-78, does not amount to outrageous government
conduct, neither does the government's conduct in this
case. Indeed, the bulk of the government's involvement
here included directing its informant to "do acts that
 might be favorable in Ms. Gruttemeyer's eyes and then
request money, " filing 74 at 139, asking the informant
to set up various meetings with the defendants, directing the
informant to tell the defendants various misstatements, and
recording the informant's interactions with the
defendants. See filing 74 at 29-37, 139. That
conduct is "pretty prosaic stuff for undercover sting
operations." Dyke, 718 F.3d at 1289-90; see
also Bugh, 701 F.3d at 894 (informants are "the
nature of the beast in police investigations" and such
realities do not rise to the level of outrageousness needed
to support a claim of outrageous government conduct). As
such, the Court finds the defendants' objections to be
respect to the defendants' other arguments, the Court
agrees with the Magistrate Judge's findings and will
adopt those findings, which are determinative of the
remaining issues. Therefore, the Court will adopt the
Magistrate Judge's findings and recommendation in their
Magistrate Judge's Findings and Recommendation and Order
(filing 80) are adopted.
defendants' objections (filing 85 and filing ...