538 F.2d 1359 (9th Cir. 1976), 75-2781, United States v. Smith

Docket Nº:75-2781.
Citation:538 F.2d 1359
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Allen K. SMITH, Defendant-Appellant.
Case Date:March 24, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1359

538 F.2d 1359 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Allen K. SMITH, Defendant-Appellant.

No. 75-2781.

United States Court of Appeals, Ninth Circuit

March 24, 1976

Page 1360

Gerald R. Pullen (argued), Portland, Or., for defendant-appellant.

Tommy Hawk, Asst. U. S. Atty. (argued), Portland, Or., for plaintiff-appellee.

OPINION

Before WALLACE and KENNEDY, Circuit Judges, and FERGUSON, [*] District Judge.

WALLACE, Circuit Judge:

Smith was convicted of conspiracy to manufacture and conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He appeals, raising three questions. First he claims that the district court erred in recessing for the day in the middle of his cross-examination of the government's informant. He next

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characterizes the government's conduct during the investigation of the case as so outrageous as to violate his due process rights. Finally, he contends that the government's postarrest conduct requires reversal. We affirm.

I. Recess During Cross-Examination

During the cross-examination of the informant witness, who was obviously a key to the government's case, the district judge recessed until the following morning. At that time, the informant had been on the stand for three hours; the examination continued for one hour the next day. Smith believes that he was on the threshold of destroying the informant's credibility and that the recess allowed the government to counsel with the witness and to prepare him for the final period of the cross-examination.

The recess was called at 4:30 p. m. There is no explanation in the record for this other than that this was a normal time to suspend proceedings for the evening. Although the district judge, after the jury was released, made some strong statements as to how he felt about the credibility of the witness, we fail to see where an abuse of discretion has been demonstrated. Carter v. United States, 373 F.2d 911, 914 (9th Cir. 1967).

II. Involvement of Law Enforcement Agents

Smith next contends that the government informant's involvement in the crime itself was conduct so shocking as to bar prosecution on due process grounds. In United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373 (1973), the Court suggested that involvement of government agents in a crime might bar prosecution if the methods used violate a "fundamental fairness, shocking to the universal sense of justice." As we stated in United States v. Lue, 498 F.2d 531 (9th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974), this is not an entrapment defense and does not involve the subjective issue of predisposition. This defense is founded on due process and is reserved for the extreme case where the government's activity is "outrageous" or "grossly shocking." Id. at 533-34.

In determining the due process question before us, the government's activity must be viewed in light of the limited range of law enforcement techniques available for investigating drug manufacturing enterprises. Russell highlighted this problem and expressly approved infiltration of and limited participation in unlawful drug-related enterprises as proper investigatory strategies which ordinarily do not violate due process. 411 U.S. at 432, 93 S.Ct. at 1643, 36 L.Ed.2d at 373.

But Smith contends that here a different result should obtain. He first points to the preparatory aid the government informant supplied. The informant was argued to have provided 100 grams of mercuric chloride (which is readily available on the open market), some glass tubing and $750, and, on one occasion, to have helped in transporting some phenyl-2-propanone. This conduct clearly falls within the infiltration activities allowed by Russell and Lue.

Smith also alleges that fundamental fairness was violated when the government employed a pharmacist and longtime friend of Smith's as an informant to betray him. The basis of Smith's contention seems to be that the choice of informant was too good. The argument is frivolous.

Smith further contends that the government was improperly involved in having the informer participate in manufacturing the illegal drugs. However, participation in the manufacturing process does not in and of itself equal outrageous conduct. In Russell, the informer had aided in the production of methamphetamine on one occasion, although the Court noted that he "did not otherwise participate in the manufacture of the drug or direct any of the work." 411 U.S. at 426 n. 3, 93 S.Ct. at 1640, 36 L.Ed.2d at 370 (emphasis added). While the informant here participated in setting up and operating the laboratory in

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the motor home with Smith over a time period longer than that involved in Russell, the informant acted at the direction of Smith. The formula followed in the production of the drug was obtained by Smith. Under the initial agreement, Smith was to be responsible for manufacturing the drug and the informant's only role was to take charge in pressing tablets containing methamphetamine. This conduct is similar to that involved in Russell and...

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