Randy J. Dyke was defiant when he addressed a federal judge in February before he was sentenced to nearly 20 years in prison for counterfeiting money and manufacturing methamphetamine.
The 52-year-old Lawrence man called the trial in the case “a joke.” His attorneys have accused undercover officers of planting the idea of methamphetamine manufacturing as a way to convict Dyke and co-defendant Donald Milton Steele of more serious charges related to an investigation that included a 2010 raid on Steele’s house east of Lawrence, 1706 N. 1500 Road.
“These gentlemen behind us, they are the criminals. They set this up,” Dyke said, according to a transcript of the Feb. 29 sentencing. “I am convicted of manufacturing. I am innocent of manufacturing. They are guilty. They manufactured this whole case for the reason to convict us.”
Now an attorney for Dyke, who is in federal prison in El Reno, Okla., is asking the U.S. 10th Circuit Court of Appeals to acquit him of the most serious charges on grounds U.S. District Judge John Lungstrum should have thrown out Dyke’s conviction of charges related to meth manufacturing and counterfeiting based on “outrageous government conduct.”
“A motion to acquit for outrageous government conduct focuses solely upon the government’s conduct, not the proclivity or eagerness of the defendant to commit a crime,” Dyke’s attorney Lumen N. Mulligan wrote in a brief also asking for oral argument in the appeal.
Steele, whose attorney is making a similar appeal, was sentenced to serve 25 years in prison, and both men after a trial last summer were convicted of six counts in all, including possession with intent to distribute more than 50 grams of methamphetamine. Dyke’s convictions were conspiracy to counterfeit money, conspiracy to manufacture meth, distribution of hydrocodone, two counts of distribution of methadone and possession with intent to distribute more than 50 grams of meth.
Federal prosecutors accused Steele of developing a plan in 2009 to pay for a large shipment of marijuana with counterfeit money, and the government said he and Dyke set up a house he owned in Topeka for a counterfeiting operation.
Prosecutors also said that in February 2010, Steele directed Dyke and another man to retrieve $10,000 in counterfeit money and more than 50 grams of meth they had conspired to have manufactured from the Topeka house. On Feb. 17, 2010, authorities raided the house east of Lawrence that also was home to All Seasons Tree Service.
Dyke’s defense attorney criticizes how investigators handled an undercover operation in the case, especially based on the initial tip they received from Kelly Findley, who spent about nine months in prison for conspiracy to related to counterfeiting investigation.
Instead of any meth operation, Findley initially only predicted investigators would find evidence of marijuana distribution, a scheme to buy marijuana with counterfeit money and the passing of bad checks. Dyke and his attorneys throughout the case have criticized how the mention of manufacturing meth came into play based on a conversation Findley and an undercover officer had with Steele.
Dyke’s side has also criticized investigators for providing instructions about how to produce meth and funds to buy manufacturing supplies.
Before and after Dyke’s trial, Lungstrum ruled against motions alleging outrageous government conduct saying there was evidence Steele first mentioned the idea of manufacturing meth.
But Mulligan argues the government is not allowed to “induce a defendant to become involved in a new criminal activity merely to create a new opportunity for prosecution.”
“Prior to the sting operation, moreover, Mr. Dyke had no criminal history relating to methamphetamine,” Mulligan wrote in his appellate brief.
Federal prosecutors have until later this month to respond to appeals from Dyke and Steele, but at Dyke’s sentencing, they had stressed how defendants in the case “jumped in with both feet” relating to the meth charges.
Dyke’s attorney is asking the appeals court to throw out the charges related to meth and counterfeiting, which carry the steepest prison sentence, and to order Dyke to be resentenced on the less serious charges.
Mulligan, who is also a Kansas University law professor, is also requesting that the appeals court grant Dyke a new trial that would include a jury instruction related to “voluntary intoxication” based on Dyke’s extensive drinking at the time of the investigation.