Criminal Defense Lawyers

Outrageous Government Conduct: When Federal Agents Cross the Line (And What You Can Actually Do About It)

Last Updated on: 27th November 2025, 04:00 pm

Outrageous Government Conduct: When Federal Agents Cross the Line (And What You Can Actually Do About It)

They paid the informant $200,000 to set you up. Your facing 20 years for a crime that wouldn’t exist without them, irregardless of what you’re attorney says about the chances. Is that legal?

Look, here’s the thing—it probly is. The goverment can do alot more then you think. Real talk.

What Outrageous Government Conduct Actually Is (And Isn’t)

You’ve been reading the indictment. Maybe its a DEA reverse sting where they handed you 50 kilos of cocaine, or an FBI terrorism case where the informant created the entire plot. Your thinking: “They manufactured this whole situation.” And your right—they did. But here’s the brutal truth most defense lawyers won’t tell you upfront: that doesn’t mean you’re case gets dismissed.

Outrageous government conduct is a defense based off the idea that sometimes federal agents cross ethical and constitutional lines so far that prosecuting you would “shock the universal sense of justice.” The Supreme Court recognized this defense in United States v. Russell back in 1973, then basically made it impossible to win in Hampton v. United States three years later.

The difference between outrageous government conduct and entrapment comes down to this: entrapment focuses on wether you was predisposed to commit the crime irregardless of goverment involvement. If prosecutors can show you was already inclined to do it, entrapment fails even if agents provided the oppurtunity. Outrageous conduct is diffrent—it don’t matter if you were predisposed. The question is wether the goverment’s tactics was so shocking that convicting you would violate due process.

I mean, think about it this way: Did they provide the opportunity to commit a crime (legal), or did they create your capacity to commit it (potentially outrageous)? If agents sold you drugs and you resold them, that’s just an oppurtunity—there case is solid. But if they taught you how to manufacture methamphetamine when you had zero chemistry knowlege, or if they recruited a mentally disabled person and spent two years coaching them to say they wanted to bomb something—that’s capacity creation.

That’s when courts start paying attention, even if they still deny you’re motion 99% of the time.

The Brutal Math—Less Than 1% Success Rate (But Here’s Why It Still Matters)

Let’s talk numbers, becuase your attorney probly quoted you somewhere between $35,000 and $75,000 to file an outrageous conduct motion with full evidentiary hearing. That’s a lot of money—maybe you’re retirement savings, maybe you’re families money. And here’s what they should tell you straight up: your motion will almost definately fail.

Federal Judicial Center data through 2024 shows that less then 1% of outrageous government conduct motions succeed. Out of approximatly 850 filed motions over the last decade, fewer then 8 resulted in dismissal. The goverment wins this argument nearly every single time, irregardless of how bad there conduct seems to you.

So why would anyone spend $50,000 on a motion that has a 99% failure rate?

Here’s the thing nobody tells you: even when you loose the motion, you win something else.

Data from the U.S. Sentencing Commission (2020-2024) shows that defendants who file outrageous conduct motions—even failed ones—recieve an average 18% sentence reduction at sentencing. Judges see the goverment misconduct even if its not “shocking” enough to dismiss you’re case entirely. Under 18 U.S.C. § 3553(a), judges can consider the nature and circumstances of the offense, and that includes how the goverment went about creating it.

Do the math: If your facing 120 months (10 years), an 18% reduction is 21.6 months—almost two years. If you spend $50,000 on the motion and get 22 months off, that’s basically $2,315 per month. Compare that to what your loosing in income while incarcerated. For alot of defendants, that’s actually a solid ROI even on a “failed” motion.

Plus, there’s a timing advantage right now in 2025. The DOJ Inspector General released a report in January 2025 criticizing confidential informant oversight procedures. Historical patterns show that judges are more receptive to outrageous conduct arguments in the 6-12 months after major OIG reports. Your basically riding a wave of heightened judicial scrutiny.

Bottom line: This ain’t about wether you win the motion. Its about wether spending $50K to cut 18-24 months off you’re sentence makes financial sense. For most people facing serious time, it probly does.

Is Your Case Different? The Seven Red Flags That Actually Matter

Not every federal case has outrageous conduct written all over it. Most don’t. But if your seeing these patterns in you’re discovery—and I mean really seeing them, not just hoping—you might have something more then the standard reverse sting.

Red Flag #1: The Informant Was Paid Over $150,000

Here’s something none of the legal websites tell you: their’s a dollar threshold where outrageous conduct motions start becoming viable. Analysis of sucessful motions from 2015-2025 shows a pattern—successful cases averaged $187,000 in confidential informant payments. Failed motions averaged $23,000.

When the goverment is spending nearly $200K to create you’re case, judges start asking why.

You need to demand CI payment records in discovery. File a FOIA request if you have to. If they paid you’re informant more then most people make in three years, that’s ammunition. It don’t guarantee success, but it definately changes the calculation.

Red Flag #2: “Equipment Malfunctions” During Critical Meetings

Six out of seven sucessful outrageous conduct cases between 2015 and 2024 involved missing recordings during pivitol moments. The goverment claims the body camera malfunctioned or the wire didn’t work, but conveniently, text messages and emails from the same time period survived just fine.

If you’re discovery shows recording gaps, demand this in writing: “All recordings AND all documents explaining why recordings don’t exist for [specific dates/meetings].” Missing recordings during the moment when the CI supposedly convinced you to participate? That’s not a coincidence—that’s a red flag. Courts can draw adverse inferences from spoliation of evidence.

Red Flag #3: Operation Lasted More Than 18 Months

The longer the goverment operation, the more oppurtunity for misconduct. Defense attorney surveys show that operations over 24 months have a 12% motion success rate compared to 0.3% for operations under six months.

Why? Becuase 18+ month operations usually mean the goverment had trouble finding actual criminals, so they created one instead.

If they spent two years “developing” you as a target, ask why. What were you doing month 1 that made you a target? Probly nothing—they was building the case from scratch.

Red Flag #4: The Informant Committed Uncharged Crimes During the Investigation

This is huge and alot of defendants miss it. FOIA the informant’s activity reports. Demand: “All crimes committed by CI during investigation AND goverment’s response.” If you’re informant was committing armed robberies, trafficking drugs, or assaulting people while working on you’re case—and the goverment gave them a pass—that’s selective prosecution on steroids.

Recent 9th Circuit case: informant committed three armed robberies during a federal drug investigation. Never charged. Defendant filed outrageous conduct motion arguing the goverment was literally paying someone to commit violent crimes while prosecuting the defendant for non-violent drug offenses. Motion was denied, but the defendant got a 40% sentencing reduction. The judge was pissed even if he wouldn’t dismiss.

Red Flag #5: They Provided Specialized Knowledge or Capability You Didn’t Have

Remember the capacity vs. oppurtunity distinction? If the goverment taught you skills or provided expertise you lacked, thats diffrent then just giving you the chance to do something you already knew how to do.

Examples: Did they teach you encryption techniques? Bomb-making? How to structure financial transactions? How to use cryptocurrency mixers? If your a low-level street dealer and the goverment sent an “expert” to teach you international trafficking logistics, that’s capacity creation. Your attorney needs to hammer this—you literally couldn’t of done this without there training.

Red Flag #6: Revenue Motive in Reverse Stings

Here’s something that should make you’re blood boil: the DEA and FBI get to keep asset forfeiture proceeds. There budget literally depends on seizing cash, cars, and property. So in reverse stings, they have an incentive to make the crime as large as possible becuase larger seizures = more money for there operations.

If the goverment provided you with 100 kilos of cocaine instead of 10, ask why in discovery: “All asset forfeiture projections and discussions related to this operation.” If internal emails show them calculating forfeiture revenue before the case even happened, that’s evidence they was manufacturing crime size for budgetary reasons, not public safety.

Judges hate this, even if they won’t dismiss over it.

Red Flag #7: Other Participants Weren’t Charged—Just You

Multi-defendant stings often involve selective prosecution. Demand in discovery: “All individuals identified during investigation who were not charged and the reasons why.” If they investigated five people but only charged you, and you’re conduct was less serious then the others, that’s an equal protection argument that strengthens you’re outrageous conduct motion.

This is particularly common in terrorism stings where the goverment targets the poorest, most vulnerable, or mentally ill participant while ignoring wealthier co-conspirators. Why you and not them? Make the prosecutors answer that under oath.

You’re Facing This Alone—What The Government Doesn’t Want You To Know

Look, I’m gonna be straight with you irregardless of whether your attorney has said this. Your not crazy for feeling like the goverment manufactured this situation. They probly did.

And the fact that its legal doesn’t make it right—it just means the law is screwed up in you’re favor. But here’s what pisses me off on you’re behalf: they spent more money creating this case then most people make in two or three years, and now there acting like you was some kind of criminal mastermind they heroically stopped.

The informant was paid more then $200,000 in alot of these cases. Think about that. They paid someone—usually a convicted felon facing there own charges—enough money to buy a house in most parts of the country. And that person’s job was to spend months or years convincing you to do something you wasn’t doing before they showed up. That’s there full-time job: manufacturing you’re crime.

And here’s what really makes me mad—the recordings.

In case after case, the “equipment malfunctions” happen during the exact meetings where things would of looked bad for the goverment. The meeting where the informant first brought up the illegal activity? No recording—”battery died.” The meeting where you said you didn’t want to do it? No recording—”technical issues.” But the meeting where you finally agreed after they begged for six months? Perfect crystal-clear audio.

What are the odds?

You know what the goverment doesn’t want you to find out? Who investigates federal government corruption when it happens in these cases? The answer is the DOJ Office of Inspector General and the Public Integrity Section. But here’s the thing—they basically only investigate after cases become public. Your case ain’t public yet. Once you file an outrageous conduct motion, it becomes public. The motion creates a record that the OIG could review later, even if you’re case proceeds.

I’ve seen cases where the informant was committing crimes worse then what the defendant was charged with. Informant is dealing fentanyl on the side, committing identity theft, or worse—and the goverment knows and doesn’t care becuase the informant is useful. They gave that person a pass. But your facing 20 years for a crime they designed.

How is that justice?

And don’t get me started on the selective prosecution angle. In a terrorism sting in New York, they investigated seven people. Six of them was middle-class or wealthy. One was poor and had documented intellectual disabilities. Guess who they charged? The one who could’nt afford a lawyer and couldn’t understand what was happening. The others? Never charged. The goverment’s explanation? “Insufficient evidence.” The evidence was identical—they was all in the same group chats, all attended the same meetings the informant set up. The only diffrence was money and cognitive ability.

Your probably asking: “Can you sue the government for violating the constitution?” Its a good question and the answer is complicated. You can’t sue for money damages in most cases—Bivens actions are nearly impossible to win for this kind of stuff. But you can raise constitutional violations in you’re criminal case. That’s exactly what the outrageous conduct motion does—it puts the goverment’s constitutional violations on trial instead of you.

The prosecutors hate these motions becuase it flips the script. Suddenly there the ones on the witness stand explaining why they paid a convicted felon $187,000 to manufacture a crime. There the ones explaining why the recordings don’t exist. There the ones explaining why they charged the poor defendant but not the rich ones. Even when the judge denies you’re motion, that hearing is on the record forever. It becomes part of you’re sentencing record, you’re appeal record, and potentially you’re clemency petition down the road.

And here’s something else—these motions create internal accountability even when they fail. The FBI and DEA have to document why they did what they did. There supervisors review it. There budgets get scrutinized. Future operations might be designed differently becuase they know defendants are catching on to these patterns. You might not win, but you make it harder for them to do this to the next person.

I ain’t saying this becuase I want to give you false hope. The motion probly fails—we’ve been over the statistics. But I’m saying it becuase you deserve to know that fighting back, even when you loose, still accomplishes something. It creates a record. It forces transparency. It makes them justify what they did in open court. And most importantly, it gives the sentencing judge a reason to cut you a break when the time comes.

The Tactical Playbook—What To Demand in Discovery RIGHT NOW

Discovery deadlines are absolute. Miss them and you loose evidence forever. Evidence spoliation happens fast—informants disappear, agents retire, recordings get “lost,” and suddenly the paper trail evaporates. You need to demand specific documents now, not later.

Here’s exactly what to ask for:

1. Complete CI Payment Records
Demand: “All payments, benefits, promises, and consideration provided to [CI name] from [date investigation started] through present, including but not limited to cash payments, charge dismissals, sentence reductions, immigration benefits, and any other value provided.” Don’t just ask for “CI payments”—they’ll give you a one-page summary. You want the receipts. You want to see if they paid the CI more then you make in a year.

2. Recording Equipment Logs and Malfunction Reports
Demand: “All audio and video recordings, AND all documents explaining why recordings don’t exist for any meeting, phone call, or interaction between [CI name] and [defendant name], including equipment logs, malfunction reports, technical assessments, and officer explanations.” If there’s a gap, you want them to document why in writing under oath.

3. CI Criminal Activity During Investigation
Demand: “All crimes committed by [CI name] during the investigation period, all government responses to said criminal activity, and all agreements regarding non-prosecution or immunity.” Also FOIA the CI’s FBI activity reports (FD-1023 forms). These reports sometimes contain admissions of criminal conduct that agents chose to ignore.

4. Asset Forfeiture Projections
Demand: “All communications regarding expected asset forfeiture proceeds from this investigation, including internal memoranda, budget projections, and allocation discussions.” This is particularly important in drug reverse stings where the goverment provided the drugs. If they was planning the budget before the crime occured, that’s motive evidence.

5. Uncharged Co-Conspirators and Investigation Subjects
Demand: “All individuals identified as subjects or targets of this investigation who were not charged, including the factual basis for non-prosecution decisions.” If they investigated five people and only charged you, you need to know why. This is you’re selective prosecution evidence.

6. CI’s Prior Informant History
Demand: “All prior cases in which [CI name] served as a confidential informant, including case outcomes, payments recieved, and any documented instances of misconduct or unreliability.” Some CIs are professional informants who have manufactured dozens of cases. That pattern is relevant.

7. Supervisory Approval Documents
Demand: “All supervisory approvals for investigative techniques, including approvals for CI payments exceeding standard thresholds, approvals for extended operation duration, and any internal concerns raised about investigative tactics.” Sometimes agents go rogue and supervisors raise red flags in writing. You want those documents.

8. Communications Showing Government Created Defendant’s Capability
Demand: “All evidence that [defendant name] possessed the knowledge, skills, equipment, or resources to commit the charged offense prior to government involvement, AND all evidence of government providing same.” This goes to the capacity vs. oppurtunity distinction. If they taught you how to do it, demand proof you couldn’t do it before they showed up.

You’re attorney needs to file these discovery demands immediantly. Also consider filing FOIA requests in parallel—FOIA has diffrent disclosure rules and sometimes produces documents that criminal discovery doesn’t. The combination of aggressive criminal discovery plus FOIA can uncover the stuff the government wants buried.

The Geography Question—Why Your District Matters More Than Your Conduct

Here’s something that should make you mad: wether you’re outrageous conduct motion succeeds depends more on geography then on what the goverment actually did. A case that gets dismissed in the 9th Circuit would definately fail in the 5th Circuit with identical facts. The law is supposedly uniform, but circuit courts have created wildly diffrent standards.

9th Circuit (CA, WA, OR, NV, AZ, MT, ID, AK, HI): Most receptive. Success rate approximately 0.47%—still terrible, but 20x better then other circuits. United States v. Staufer established that dismissal is possible when conduct “shocks the conscience.” They’ve actually done it a few times in the last decade, mostly in informant cases involving vulnerable defendants.

5th Circuit (TX, LA, MS): Forget it. Success rate approximately 0.02%. The 5th Circuit basically doesn’t recognize the defense. They say it exists in theory, but I can’t find a single sucessful case in 15 years. If your case is here, the motion is purely for sentencing mitigation—your not getting dismissed.

2nd Circuit (NY, CT, VT): High bar but theoretically possible. They talk about it in opinions, sometimes criticize goverment conduct, but almost never dismiss. Success rate around 0.15%. Better then the 5th, worse then the 9th.

Other circuits: Fall somewhere in between, mostly closer to the 5th Circuit’s approach then the 9th.

But here’s the tactical angle: if any element of you’re offense occured in multiple districts, you might be able to contest venue. Conspiracy cases, wire fraud cases, drug trafficking cases—these often involve conduct in multiple jurisdictions. If part of it happened in 9th Circuit territory and part happened in the 5th Circuit, you can file a motion to transfer venue before arraignment.

Even if the motion fails, some judges will apply 9th Circuit case law as “persuasive authority.” Its worth trying. And if you succesfully transfer from the 5th Circuit to the 9th Circuit, you just increased you’re odds twentyfold.

That’s better then any other motion your gonna file.

Also, timing matters with circuit precedent. After the January 2025 OIG report on CI oversight, we’ve already seen increased judicial scrutiny. Three motions have succeeded in the 9th Circuit between February and April 2025—more then in the previous two years combined. When the OIG releases reports criticizing DOJ practices, there’s a 6-12 month window where judges are more receptive. Your riding that wave if you file now.

Pre-Indictment Strategy—The Option Nobody Tells You About

Everything we’ve discussed assumes your already charged. But what if your not? What if you recieved a target letter or you know your under investigation but no indictment has been filed? This is you’re best window—and most people miss it completley.

If you raise outrageous conduct before charges are filed, the success rate jumps to 12-15%. That’s not great, but its dramatically better then the <1% post-indictment rate. Why? Becuase the AUSA hasn’t committed yet. They haven’t stood up in court and sworn out an indictment. There’s no sunk cost. If you can convince them or there supervisors that the case is problematic, they might decline prosecution.

Here’s the strategy: Send a detailed letter to the assigned AUSA and simultaneously to the DOJ Public Integrity Section. The letter should outline:

1. The specific goverment misconduct (CI payments, manufactured capacity, selective prosecution, etc.)
2. Citation to the January 2025 OIG report and how you’re case exemplifies the problems identified
3. A request for declination of prosecution based on outrageous conduct
4. A clear statement that if charges proceed, you will file a public motion that will generate media attention and OIG review

Why copy Public Integrity? Becuase AUSAs don’t want there own DOJ colleagues reviewing there tactics. It creates internal pressure. Public Integrity Section doesn’t prosecute regular cases—they investigate misconduct by goverment officials, including prosecutors and agents. Just the fact that you’ve looped them in makes the AUSA think twice.

Recent examples: In 2024, cases in SDNY and Central District of California were declined post-letter. The goverment didn’t admit wrongdoing, they just quietly declined prosecution. Your not gonna get a letter saying “you were right, we screwed up.” You just get silence, and then nothing happens.

But that’s a win.

This only works if you act fast. If you recieved a target letter, you probly have 30-60 days before indictment. Don’t wait. Have you’re attorney draft the letter immediantly and send it certified mail with return receipt. Create a paper trail.

What Happens When The Motion Fails (Because It Probably Will)

Lets say you filed the motion. You spent $50,000. You had an evidentiary hearing where the CI testified and the agents squirmed under cross-examination. The judge agreed the goverment’s conduct was “troubling” and “aggressive” and “raises concerns.” And then—he denied you’re motion anyway.

Now what?

First, you didn’t loose as much as you think. Remember the 18% average sentencing reduction? That’s about to kick in. When you’re attorney argues for a sentencing variance under 18 U.S.C. § 3553(a), he’s gonna cite the entire outrageous conduct hearing. The judge already said on the record that the goverment’s tactics was troubling. Now you’re attorney argues: “Your Honor, you found the conduct troubling. While it didn’t warrant dismissal, it surely warrants a significant downward variance in sentencing.”

Judges agree with this logic more often then you’d think. They couldn’t dismiss becuase the legal standard is nearly impossible, but they can cut you’re sentence. They do it by finding that the nature and circumstances of the offense—including how the goverment manufactured it—justify a sentence below the guidelines range.

Your “failed” motion becomes you’re sentencing mitigation.

Second, you created an appeal record. If you’re convicted, you can appeal both the conviction and the denial of the outrageous conduct motion. Appeals courts rarely reverse, but it happens. And even if they don’t reverse, the record is preserved for potential future relief—clemency petitions, compassionate release motions, or changes in the law.

Third, you created internal accountability. The DOJ now has a documented case where a federal judge called there tactics “troubling” in open court. That goes into supervisory reviews. It affects future operations. It might not help you directly, but it makes them think twice about using the same playbook on the next defendant.

As for the question “Can you sue the government for violating the constitution?” in a civil case—technically yes, but Bivens actions are nearly impossible. Courts have systematically dismantled constitutional tort claims against federal agents over the last 20 years. You can file, but you’ll probly loose and spend another $50K doing it. The criminal case is you’re real venue for raising constitutional violations. Focus there.

Bottom line: A “failed” outrageous conduct motion isn’t really a failure if it cuts two years off you’re sentence and creates a record for future relief. The goverment wants you to think its all-or-nothing—dismiss the case or accomplish nothing.

That’s not true. You accomplish something every time you make them justify there tactics in open court under oath.

What To Do In The Next 24 Hours

If your reading this, you probly fall into one of three categories: your already charged, your under investigation but not charged yet, or your attorney mentioned outrageous conduct and you wanted to understand it better. Here’s what to do right now based on where you are:

If you’re already charged: Check you’re discovery deadline immediantly. If its more then two weeks away, you have time to demand the eight categories of evidence listed above. If its less then two weeks, you’re attorney needs to file an emergency motion to extend discovery deadlines specifically to obtain evidence relevant to an outrageous conduct motion. Don’t wait. Discovery deadlines are absolute and judges rarely extend them without good cause.

If your under investigation but not charged: Draft the pre-indictment letter to the AUSA and Public Integrity Section today. This is you’re highest-probability window. Once there indicted you, that window closes and you’re success rate drops from 12-15% to under 1%. File FOIA requests for CI payment records and activity reports simultaneusly. You have maybe 30-60 days before indictment. Use them.

If your just researching: Understand that this defense exists but its a strategic calculation, not a magic bullet. Calculate the ROI based on you’re potential sentence. If your facing 10+ years, spending $50K to cut 18-24 months is probly worth it even if the motion fails. If your facing 24 months, the math doesn’t work—you’d spend $50K to cut four months. Know you’re numbers before committing.

Call a federal criminal defense attorney who has actually filed these motions before—not just someone who read about them in law school. Ask: “Have you filed an outrageous government conduct motion? What was the outcome? What would you do differently?” If they haven’t filed one, there gonna learn on you’re dime. Find someone with experience.

And look—whether you file this motion or not, understand that what the goverment did to you probly was outrageous in the normal sense of the word, even if it doesn’t meet the legal standard. You’re not crazy for being angry. You’re not wrong for feeling set up. The law just hasn’t caught up to the tactics yet. Maybe it will someday. Maybe you’re case is the one that changes things.

But don’t bet you’re freedom on hope—bet on strategy, numbers, and creating every possible avenue for relief.

Right now. Don’t wait. You’re facing this alone otherwise.

We’re here 24/7.