## Facts

- A federal prison warden directed an inmate informant to investigate drug use and smuggling within the prison.
- The informant learned from inmate conversations that Wiley could arrange for marijuana to be smuggled into the institution.
- After multiple meetings, Wiley agreed to help bring approximately one pound of marijuana into the prison in exchange for receiving an ounce.
- Wiley stated that a prison cook, Garbiso, had previously served as his courier and could smuggle drugs into the facility again.
- Wiley indicated that delivery would be easier if the courier believed the outside supplier was connected to Wiley; he referenced his girlfriend “Lee,” but said the real Lee could not be used due to their relationship.
- The informant proposed finding someone to pose as Lee; the plan was negotiated among the informant, Wiley, and Garbiso.
- The FBI supplied the marijuana, and an undercover agent posed as “Lee” and delivered the marijuana to Garbiso, who carried it into the prison.
- The marijuana was not recovered after it entered the prison.
- Wiley was convicted in federal district court of conspiracy to possess and distribute marijuana; he appealed solely on due process grounds, arguing outrageous government conduct.

## Issues

1. Whether the government’s conduct in a prison sting—using an inmate informant, supplying marijuana, and using an undercover agent posing as the defendant’s girlfriend to deliver drugs through a prison employee—was so outrageous that it violated Fifth Amendment due process and required dismissal of the indictment.

## Decision

- The Ninth Circuit affirmed the conviction.
- The court held the government’s conduct did not “shock the conscience” and therefore did not violate due process.
- The court concluded the operation reflected aggressive but generally permissible undercover techniques in the prison context, not the creation and control of a criminal enterprise.

## Legal Principles

- Dismissal for “outrageous government conduct” is an exceptional due process remedy, limited to conduct that “shocks the conscience” or is “so grossly shocking and so outrageous” as to offend fundamental fairness.
- The doctrine is not satisfied by negligence, poor execution, deception, or routine undercover tactics, even if forceful.
- A key consideration is whether the government manufactured and dominated the criminal activity (originating and running the enterprise) versus infiltrating or participating in an existing pattern of illegal conduct.
- Government provision of contraband and use of false identities, without more extreme governmental creation and long-term control of the criminal operation, generally do not establish a due process violation.

## Conclusion

The court held that the government’s prison smuggling sting—though involving government-supplied marijuana, an informant, and an undercover delivery that resulted in unrecovered contraband—did not meet the narrow “outrageous conduct” standard required to bar prosecution on due process grounds, and Wiley’s conspiracy conviction was affirmed.


United States v. Wiley, 794 F.2d 514 (9th Cir. 1986)