DOJ-OGR-00003066.jpg

Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 132 of 239 government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (internal quotation marks omitted); Albright v. Oliver, 510 U.S. 266, 272 (1993) (“[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.”’). The defendant bears the “‘very heavy’ burden of establishing a due process violation.” United States v. Walters, 910 F.3d 11, 27 (2d Cir. 2018). “To succeed on a claim that the government’s conduct in pursuit of evidence violates a defendant’s Fifth Amendment due process rights, the government’s method of acquiring the evidence must be so egregious that it ‘shocks the conscience.’”” United States v. Loera, 333 F. Supp. 3d 172, 184 (E.D.N.Y. 2018) (internal quotation marks and citations omitted). “The concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice, or conduct that is ‘so outrageous’ that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction against the accused.” United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997) (internal quotation marks and citations omitted). “Such outrageous or conscience shocking behavior involves egregious invasions of individual rights, or coercion.” United States v. Coke, No. 07 Cr. 971 (RPP), 2011 WL 3738969, at *5 (S.D.N.Y. Aug. 22, 2011) (internal quotation marks and citations omitted). The Second Circuit has explained: The paradigm examples of conscience-shocking conduct are egregious invasions of individual rights. See, e.g., Rochin, 342 U.S. at 172, 72 S. Ct. 205 (breaking into suspect’s bedroom, forcibly attempting to pull capsules from his throat, and pumping his stomach without his consent). Especially in view of the courts’ well-established deference to the Government’s choice of investigatory methods, see United States v. Myers, 692 F.2d 823, 843 (2d Cir. 1982), the burden of establishing outrageous 105 DOJ-OGR-00003066