625 F.2d 1371 (9th Cir. 1980), 79-1362, United States v. Wylie

Docket Nº:79-1362, 79-1363 and 79-1431.
Citation:625 F.2d 1371
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter WYLIE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sheldon PERLUSS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David BACHRACH, Defendant-Appellant.
Case Date:July 16, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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625 F.2d 1371 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter WYLIE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sheldon PERLUSS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

David BACHRACH, Defendant-Appellant.

Nos. 79-1362, 79-1363 and 79-1431.

United States Court of Appeals, Ninth Circuit

July 16, 1980

Submitted Feb. 14, 1980.

Rehearing Denied in No. 79-1363 Sept. 8, 1980.

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Harry Hellerstein, Asst. Federal Defender, David Weitzman (on brief), Anne Flower Cumings (on brief), San Francisco, Cal., for defendant-appellant.

Robert Mueller, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Northern District of California.

Before THORNBERRY, [*] ANDERSON and SKOPIL, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The defendants (Wylie, Perluss, and Bachrach) bring this appeal from their convictions on a seven-count indictment charging a large scale LSD manufacturing and distribution operation. They raise several arguments on appeal which fall into three general categories: (1) the adequacy of the government's denial of electronic surveillance; (2) the outrageousness of the government's involvement in the criminal enterprise; and (3) various challenges to the length of sentences which were imposed. We find no reversible error and affirm their convictions. For the reasons stated hereinafter, the sentences are vacated and we remand for resentencing.

I. BACKGROUND

This criminal enterprise had its origin with the defendant Bachrach's dreams of great wealth. Bachrach, a sometime college teacher, talked with his friend Alfred Bloch about one such scheme for making large amounts of money. The two men discussed the possibility of obtaining ergotamine tartrate (ET) which is used for manufacturing LSD, and the possibility of selling LSD itself. The discussion eventually took concrete form when Bachrach paid $2,000 to send Bloch to Poland in an unsuccessful attempt to obtain LSD crystals.

For reasons which are less than clear, Bloch approached the authorities and agreed to work for them in setting up his friend Bachrach. On instructions from DEA agents, Bloch told Bachrach that he could obtain ET from a source in San Francisco.

On November 24, 1978, Bachrach flew to San Francisco and met two undercover DEA agents who posed as Bloch's "source." Bachrach told the agents that he wanted to obtain one-half to one full kilogram of ET each month for a clandestine LSD lab in Berkeley. In turn, the agents explained to Bachrach that they would supply him with ET in exchange for LSD. Three days later, Bachrach met with the DEA agents and gave them 400 units of LSD, as well as a price list of the different types of LSD which could be supplied. (The list was in the defendant Wylie's handwriting.)

On November 30, Bachrach and Wylie both met with the DEA agents and Wylie bragged about the size of the LSD operation. The parties agreed to exchange 30,000 units of LSD for 100 grams of ET. The next meeting was on December 1, at which time Bachrach gave 30,000 units of LSD to the agents for a bottle of ET pursuant to the earlier agreement.

This was followed by Bachrach's sale of 2,000 tablets of LSD to the agents on December 7 in exchange for $900. A week later, Bachrach gave the agents a shopping list (handwritten by Wylie) of additional chemicals which were needed. These chemicals

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were given to Bachrach on January 2, 1979. Bachrach turned these chemicals over to Donald Goetz 1 the next day. Goetz then gave them to Wylie. In turn, Wylie transferred the chemicals to Perluss on the following day.

Meanwhile, on January 3, Bachrach and Wylie exchanged 54,000 units of LSD for 100 grams of ET. The final exchange took place on January 18 when Bachrach gave 226,400 units of LSD to the agents in exchange for more ET. The defendants were all arrested on January 18. The residence of Perluss was searched and a number of chemicals and formulas used for manufacturing LSD were found.

All of the defendants were charged with conspiracy to manufacture and distribute LSD in violation of 21 U.S.C. § 846 (Count 1). Wylie and Bachrach were charged with four counts for the actual distribution of LSD in violation of 21 U.S.C. § 841(a)(1) (Counts 2 through 5). These substantive counts were based on the four different exchanges which occurred on November 27, December 1, December 7, and January 3. The sixth count charged Wylie, Bachrach, and Perluss with distribution (21 U.S.C. § 841(a)(1)) based on the exchange of the 226,400 units of LSD on January 18. And finally, the seventh count, charged Wylie and Bachrach with the use of a telephone to facilitate distribution of LSD in violation of 21 U.S.C. § 843(b). After a six-day trial, on April 4, 1979, a jury found the defendants guilty on all counts.

Bachrach, who was found guilty on all seven counts, was sentenced to a total of fifteen years. 2 Wylie, who was also convicted on all seven counts, was sentenced to twenty years. 3 And Perluss, who was found guilty on the two counts charged against him, was sentenced to a total of seven years. 4

After sentencing, the defendants all filed timely notices of appeal. This court has jurisdiction under 28 U.S.C. § 1291 to consider their claims of error.

II. DISCUSSION

1. Electronic Surveillance

Prior to trial, counsel for Perluss filed a claim under 18 U.S.C. § 3504 asserting that she had been the subject of illegal electronic surveillance in connection with her representation of Perluss. The government made a general denial of any such electronic surveillance. Perluss' counsel then filed a supplemental affidavit in support of the § 3504 claim. The government responded by filing a more detailed denial of electronic surveillance. On appeal, Perluss argues that the government's denial was inadequate and asks this court to remand to the district court for an evidentiary hearing on the electronic surveillance claim.

When a defendant makes a prima facie showing that he or his attorney was

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subjected to electronic surveillance, the burden then shifts to the government to "unequivocally affirm or deny the use of such surveillance." United States v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980); United States v. See, 505 F.2d 845, 855-856 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673. United States v. Alter, 482 F.2d 1016, 1026-1027 (9th Cir. 1973). Because this could place an awesome burden on the government to respond to frivolous claims, we have established specific requirements for the defendant to satisfy in order to make out a colorable claim. See, supra, 505 F.2d at 856. 5 In addition, the "specificity of the prosecution's denial and the comprehensiveness of the search on which the denial is predicated must be measured against the specificity of the allegations of unlawful electronic surveillance and the strength of the support for those allegations." Gardner, supra, 611 F.2d at 774. And finally, the task of striking a balance between "the conflicting and sensitive interests at stake" when this type of question arises, "properly lies with the district court." Alter, supra, 482 F.2d at 1026.

In the supplemental affidavit submitted by Perluss' counsel, she stated that on March 19, 1979, she held a conference with Perluss between eleven and noon. Before, during and after the conference, her cousin was in her house and used her phone. Her cousin informed her that the use of the phone was normal before and after the conference with Perluss. However, the use of the phone during the time of the conference "consistently had a conversation in the background between two persons." Based on the events related to her by her cousin, Perluss' attorney stated that she believed "there was an unauthorized, governmental interception of wire and/or oral communications during the attorney-client conference at her home on March 19, 1979, between the hours of eleven and noon."

The district court found that this affidavit raised a question of electronic surveillance and ordered the government to make a check of the relevant agencies to determine if there had been any illegal electronic surveillance. The government attorney who was in charge of the prosecution of this case responded with a declaration which denied any such electronic surveillance of Perluss or his attorney. The government attorney stated that he was unaware of any electronic surveillance except for that which had already been disclosed to the defendants (and was not at issue). Incorporated into the declaration was the summary of the Justice Department's search of the records from the different government agencies. 6 The search disclosed no evidence that on March 19, 1979, either Perluss or his attorney was subjected to surveillance by electronic, mechanical, or other reception device. And lastly, the government offered the statement by the agent who was in charge of the investigation into this case. The agent stated unequivocally that at no time was any type of wiretap or area bug ever used during the investigation of the case. The only electronic surveillance

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which had been utilized involved the use of body recorders worn by the undercover agents during their meetings with the defendants, and the undercover agents' recording of their telephone conversations with the defendants (as mentioned earlier, these had been disclosed and were not at issue).

We believe that the district court struck the proper balance between the conflicting and sensitive interests which...

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