580 F.2d 365 (9th Cir. 1978), 78-1273, United States v. Owen

Docket Nº:78-1273.
Citation:580 F.2d 365
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Estel OWEN, Defendant-Appellant.
Case Date:August 18, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 365

580 F.2d 365 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Estel OWEN, Defendant-Appellant.

No. 78-1273.

United States Court of Appeals, Ninth Circuit

August 18, 1978

Page 366

J. Bradford Shiley, Jr., Portland, Or., for defendant-appellant.

Kenneth A. Bauman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before DUNIWAY and CHOY, Circuit Judges, and GRANT, [*] District Judge.

GRANT, District Judge:

This appeal follows the denial of a motion to dismiss an indictment charging the distribution of cocaine. The dismissal was sought as a punitive measure against the government for alleged misconduct on the part of an agent of the Drug Enforcement Administration (DEA). Defendant Owen was arrested in April 1977 for the sale of cocaine as the result of the cooperation of a DEA informant. On 28 April 1977 a grand jury returned a four-count indictment charging Owen in Counts I, II, and III, with distribution of cocaine. Count IV charged Owen with possession with intent to distribute cocaine, all in violation of 21 U.S.C. § 841(a)(1). Owen originally pleaded not guilty but later, on 14 June 1977, changed his plea to guilty to Count I of the indictment pursuant to a plea bargain agreement wherein the government recommended that the defendant should not receive a sentence in excess of five years. On 1 August 1977 the trial court sentenced Owen to five years, a $12,500 fine, and a special parole term of three years, following which the court dismissed Counts II, III, and IV.

On 22 September 1977, four days prior to the date he was to report to the federal prison, defendant filed a motion to dismiss the indictment, together with a supporting affidavit alleging gross governmental misconduct, or in the alternative, to reduce his sentence. In support of the motion, Owen alleged certain contacts with DEA Agent Richard Horn, during the time period between his change of plea and the date of sentencing. Defendant contended that Horn interfered with his right to counsel by pressuring him to supply incriminating information against one of Owen's lawyers, a D. Lawrence Olstad. The "pressure" consisted of alleged promises that if Owen complied, he would not have to go to prison and that if Owen failed to cooperate, the plea bargain would be voided. On 3 October...

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