planned. No sale of drugs took place at that time. Wilson returned to the station house within an hour of the attempted transaction.
There was no further contact between Investigator Wilson and Mr. Budd, until Budd was arrested on September 5, 1991. During the debriefing, Wilson's true identity was revealed to the defendant. Captain Miller testified that Budd stated at that time, "Oh, You (Wilson) know that I loved you so much." There was no accusation that Wilson had a sexual affair with the Defendant until he testified at the trial.
The defendant has made a motion for a Judgement of Acquittal N.O.V. or in the alternative to Dismiss the Indictment because of "Outrageous Government Conduct". A motion to Dismiss an Indictment because of Outrageous Government Conduct is usually required to be made before a trial. However, where allegations of Outrageous Government Conduct arise during the course of a trial, a Court can consider those allegations post-conviction. See, United States v. Dyman, 739 F.2d 762, 768-69 (2d Cir. 1983). Here the gravity of the defendant's accusations, namely inappropriate conduct by the government investigator, compelled this Court to hold such a hearing.
The defendant asserts that the Investigating Police Officer exceeded the bounds of the propriety by 1) engaging in sexual relations with Budd several days after the date that Budd sold drugs to him; 2) smoking cocaine-laced marijuana on the date of the second cocaine sale to the officer; and, 3) giving crack cocaine to a bartender at the "Brass Rail".
The Supreme Court has recognized that there may be situations "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." United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). The task for this Court, therefore, is to determine if the allegations made by the defendant are true, and if so whether such inappropriate conduct of the government agent is so egregious that the case must be dismissed.
This Court does not believe that the defendant has sustained his burden to grant a dismissal of the indictment. The Court credits the testimony of Wilson, that he did not engage in the conduct alleged by defendant. The Court finds that Wilson's testimony is in every way credible, and accurately portrayed his actions during the conduct of a very difficult assignment. Indeed with respect to the alleged incident on March 21, 1991, Wilson's actions were observed by a back-up Police Officer, who did not see what the defendant stated in his testimony.
In addition, the testimony of Captain Miller showed that Wilson carried out his duties in compliance with Metropolitan Police procedures. Since the allegations of Governmental misconduct has not been sustained the defendant's motion for a Judgement of Acquittal N.O.V. or in the alternative to dismiss the indictment is denied.
United States District Court
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 814 F. Supp. 4.
ORDER - February 23, 1993, Filed
Having considered the Defendant's motion for Judgement of Acquittal, N.O.V. and or for a dismissal of the indictment, the government's opposition thereto, the testimony at trial, and the evidence and testimony adduced in the post-conviction hearing; the defendant's motion is hereby DENIED.
United States District Court