Outrageous Government Conduct as a Federal Crimes Defense in Texas

In most cases, the courts presume that the government is acting reasonably when they pursue criminal charges against an individual. As long as the federal government's intentions are good, the courts will not prevent a case from moving forward. However, some conduct by the federal government is so outrageous that moving forward with a criminal prosecution violates a defendant's due process rights. This is a high bar to prove, as it must involve acts so fundamentally unfair that justice would prevent a criminal prosecution. This is known as the outrageous government conduct defense.

This defense is available even in cases where the state could prove all of the elements of a crime. Despite this evidence, the successful use of this defense can bar prosecution and lead to the dismissal of all charges.

If you believe that you have been treated unfairly as part of a federal investigation, you might be entitled to relief. The outrageous government conduct defense is complex, however. This makes it vital that you seek the guidance of an experienced attorney immediately. Let attorney Doug Murphy review your case and determine if your due process rights were violated by an out of control government entity.

Understanding Outrageous Government Conduct

The conduct of a government and its agents is central to this defense. This defense operates entirely outside of whether or not a defendant intended to commit a criminal act. This defense differs from entrapment. While entrapment often centers around whether or not the defendant was otherwise predisposed to commit a crime had the government not provided an avenue to do so, outrageous government conduct is different. This defense instead focuses on the degree of unreasonableness the state's behavior represents. There are two elements for a claim of outrageous government conduct, which include:

  • Government overinvolvement in a charged crime, and
  • The defendant having a passive role in the government-orchestrated criminal activity.
  • In other words, this defense is not available to a defendant that took an active role in the criminal act, even if it was ultimately government-orchestrated.

The courts have made clear that this defense is intended for only the most outrageous of conduct. When reviewing this conduct, the court must consider the totality of the circumstances to determine how extreme the government agent's behavior was.

Often, the defense boils down to whether the defendant was an active or passive participant in a crime initiated by law enforcement. This can be a difficult issue to prove, but it is vital to the successful use of this defense.

There are special considerations when using this defense in cases where a government agent involved in the scheme has a sexual relationship with the defendant. To establish outrageous government conduct under these circumstances, the defendant must prove three elements.

  • First, the defendant must show that a government agent set out to use sex as an investigatory tool. This can also include the government acquiescing to use sex for these purposes after learning of the sexual relationship.
  • Second, the defendant must show the government agent initiated the sexual relationship or allowed it to continue to achieve governmental ends. Third, the defendant must establish that the sexual relationship occurred at approximately the same time as the conduct covered by the indictment and must have been related to the events covered by the charging documents.

Making Use of this Defense Strategy at Trial

Given the rarity in which this defense is available, it should not surprise you that the defendant holds the burden of proving this defense. It is a high burden, as well. To be successful, the defendant bears “an extremely high burden of proof,” according to prior court decisions. This falls outside the normal burdens of proof used in most criminal cases.

Outrageous government conduct is a notice defense, meaning the failure to properly notify the government will prevent you from making use of it. It is also considered a pre-trial defense given the remedy is to bar prosecution altogether. In fact, whether or not the conduct of the government is outrageous is not a question for the jury whatsoever. If the defense is raised in a timely manner before trial, the court will determine whether the conduct merits a bar to prosecution as a matter of law. Either the court will side with the government and allow the prosecution to continue, or they will agree with the defendant, dismiss the charges, and bar further prosecution. For these reasons, this defense has no application at trial.

It is imperative that you take appropriate steps to raise this defense prior to trial. This defense may only be raised through a pre-trial motion to dismiss, and failing to raise the issue will result in a waiver of the defendant's ability to bring the defense at a later date.


This defense is complex. Given its rarity, it can be difficult to understand when the use of this defense might be appropriate. Consider the examples below.

Example #1

Jeff is an aspiring cocaine producer that sees an ad in a trade publication for equipment to produce your own chemicals. Recognizing this equipment as part of the necessary steps to manufacture cocaine, Jeff calls to inquire about purchasing them. The trade advertisement was a ruse from the FBI, however. When Jeff speaks with the FBI posing as the manufacturer, he determines that the process is too complex for him to handle. The FBI agent convinces him that he can help him make the drugs, and Jeff purchases the equipment. Jeff relies on the FBI agent but also takes other active steps in preparing the drugs. Jeff is then arrested for drug manufacturing. While the actions of the government are extreme, Jeff arguably took an active role in the process and could not rely on the outrageous conduct defense.

Example #2

Consider the following example. This time, Jeff is so put off on the idea he refuses to participate. The agent not only offers to help but takes an active role in delivering the equipment, setting it up in Jeff's house, and creating the drugs himself. In this case, Jeff might make use of the defense.

Let a Houston Board Certified Criminal Law Expert Help

Due to its complexity, always discuss the use of this defense with a skilled Houston criminal defense attorney. Call the Doug Murphy Law Firm, P.C. to discuss your options.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.