United States v. Lynn Dale Bogart, Edward Elbert Wingender, Teodaro Risquez, Defendants

Lynn Dale Bogart and Edward Elbert Wingender pled guilty to conspiring to possess cocaine with intent to distribute and to the unlawful use of a communications facility. Teodaro Risquez pled guilty to attempting to possess cocaine.

Bogart and Wingender contend that the government’s conduct was so outrageous that it violated their due process rights. The district court held an evidentiary hearing and rejected the defendants’ outrageous governmental conduct claim, but made no findings of fact. Bogart and Win-gender also argue that the district court, in denying their outrageous governmental conduct claim, erred by using a subjective rather than an objective standard. Risquez appeals the district court’s refusal to sentence him to probation on a narcotics “diversion” program.

We remand Bogart’s case to the district court for findings of fact on the nature of, and motivation for, the government’s conduct. Without the benefit of clear findings of fact, we do not have an adequate record upon which to decide the merits of Bogart’s appeal in this particularly fact-oriented area of the law.

We affirm the convictions of Wingender and Risquez because they do not have standing to contest…