710 F.2d 535 (9th Cir. 1983), 81-1728, United States v. Ramirez

Docket Nº:81-1728, 81-1729.
Citation:710 F.2d 535
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roy Moreno RAMIREZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert H. REYNOLDS, Defendant-Appellant.
Case Date:July 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 535

710 F.2d 535 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Roy Moreno RAMIREZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert H. REYNOLDS, Defendant-Appellant.

Nos. 81-1728, 81-1729.

United States Court of Appeals, Ninth Circuit

July 12, 1983

Argued and Submitted Oct. 4, 1982.

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Kendra S. McNally, Asst. U.S. Atty., Los Angeles, Cal., for United states.

Kenneth Rodman, Encino, Cal., for Ramirez.

Michael Levine, Federal Public Defender, Honolulu, Hawaii, for Reynolds.

Appeal from the United States District Court for the Central District of California.

Before ELY, SNEED and ALARCON, Circuit Judges.

SNEED, Circuit Judge:

Appellants Ramirez and Reynolds, along with codefendants Peterson, Miller, and Baerenwald, were indicted for conspiracy to transport stolen aircraft, import marijuana, and distribute marijuana, in violation of 18

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U.S.C. Sec. 371 (Count I); foreign transportation of stolen aircraft, in violation of 18 U.S.C. Sec. 2312 (Counts II & III); importation of marijuana, in violation of 21 U.S.C. Sec. 960(a)(1) (Counts IV & VI); and possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) (Counts V & VII). 1 Appellants were tried before a jury in a joint trial. 2 Ramirez was convicted on all counts and was sentenced to a twelve year prison term. Reynolds was convicted on Count II and was sentenced to a four year prison term; he was acquitted on Count III and a mistrial was declared on all remaining counts when the jury was unable to reach verdicts on those counts. We affirm.

I.

FACTS

This case arises out of the theft of two airplanes, a Cessna 404 Titan Courier and an Aero Commander 500 Shrike, from the Long Beach, California airport, and the use of these planes to import approximately 1,000 pounds of marijuana into the United States from Mexico. Evidence introduced at trial described a series of meetings and transactions that transpired between five primary participants during the period from February to May of 1981. Two of the five persons indicted, William Miller and Gary Baerenwald, entered into plea agreements and testified for the government. Miller testified that he stole the two aircraft and piloted the planes to and from Mexico. Baerenwald testified that he introduced appellants Reynolds and Ramirez, and that he participated in the effort to find planes that could be stolen as well as in the search for suitable "clandestine" airfields in the United States. Robert Peterson, charged with off-loading and delivering shipments of marijuana once they reached the United States, was tried with appellants but was acquitted.

Ramirez, however, was convicted as the instigator and financier of the criminal scheme. The government's evidence against Ramirez was designed to show only that Ramirez directed the criminal scheme from behind the scenes. He played a minor role in actually implementing the scheme through the theft of airplanes and the delivery of marijuana. His defense rested on the alleged weakness of the government's evidence of his connection to the conspiracy.

Reynolds' part was considerably more complex. Before February of 1981, the approximate time when the charged conspiracy was formed, Reynolds had been working as an informer for the Los Angeles Police Department (LAPD). The relationship was not a happy one. Reynolds admits compromising one narcotics investigation by warning the suspect, a friend of Reynolds. Other attempts by the LAPD to set up drug arrests through Reynolds were likewise unsuccessful. Sergeant Fred McNight of the LAPD testified at the trial below that by January 1981, the LAPD had decided that Reynolds was not trustworthy and that he would be regarded as a double agent.

One month later, the activities charged in the present indictment commenced. Unlike Ramirez, Reynolds freely admitted at trial that he participated fully in the overt acts taken to implement the goals of the conspiracy. Also between February and June of 1981 Reynolds informed the LAPD of impending meetings so that the police could observe. It is this latter activity that makes this case somewhat unique. Reynolds' principle defense at trial was that at all times during the admitted criminal scheme he was acting as a police informer and that as such he did not have the specific criminal intent necessary for conviction.

On appeal, Reynolds and Ramirez both allege instances of reversible error on the

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part of the district court, and that the evidence was insufficient to sustain their convictions. We shall consider Reynolds' appeal first.

II.

APPELLANT REYNOLDS

Reynolds advances six grounds for reversing his conviction for foreign transportation of stolen aircraft (Count II). He contends that the district court erred by: (1) denying a motion to dismiss the indictment for outrageous police misconduct; (2) improperly admitting appellant's confession into evidence; (3) failing to give jury instructions requested by appellant; (4) denying appellant's motion for mistrial on grounds of improper jury coercion; (5) refusing to strike "prejudicial surplusage" from the indictment; and (6) failing to direct that he be acquitted on the ground of insufficient evidence to sustain the verdict. We hold that none of the claims of error justifies reversal.

  1. Denial Of Motion To Dismiss Indictment For "Outrageous Police Misconduct"

    Appellant filed a pretrial motion to dismiss the indictment because of "outrageous police conduct" which the district court took under submission. At the close of testimony appellant renewed the motion and it was denied. Appellant advances two theories to justify dismissal of his indictment. One is that the conduct of the police violated the Due Process Clause. The second, and alternative theory, is that the police conduct justifies an invocation of the inherent supervisory power of the district court to dismiss indictments or take other remedial action. Under both theories the alleged misconduct is that police coerced Reynolds into acting as an informer, played an active role in the resulting criminal enterprise, and then prosecuted Reynolds for doing only what the police had instructed him to do. We reject both of appellant's theories because the police conduct in this case was within permissible limits.

    1. Due Process.

    The existence of police misconduct that contravenes the constitutional due process is a question of law. United States v. Wylie, 625 F.2d 1371, 1378 (9th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 84 (1981); United States v. McQuin, 612 F.2d 1193, 1196 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). As a defense it is a close relative of entrapment and has been applied where the involvement of undercover agents and informers in contraband offenses reaches "such proportions as to bar conviction of a predisposed defendant as a matter of due process." Hampton v. United States, 425 U.S. 484, 493, 96 S.Ct. 1646, 1651, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); see United States v. McQuin, 612 F.2d at 1196. An example is where government agents engineer and direct the criminal enterprise from start to finish.

    The due process defense, while potentially broad, has in fact been severely restricted. See United States v. Bagnariol, 665 F.2d 877, 881-83 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982) (tracing development of the defense both in this circuit and in the Supreme Court). Prosecution is barred "only when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). The Supreme Court has never reversed a criminal conviction on this ground. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). 3 Only twice have

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    federal circuit courts done so. 4 In both cases the outrageous misconduct was, in effect, the generation by police of new crimes merely for the sake of pressing criminal charges against the defendant.

    That did not happen in this case. The government did not create the crime--Reynolds and his associates did that. Reynolds informed the agents of the criminal enterprise, but that did not enmesh the government in the criminal activity in an unconstitutional manner. Nonetheless, appellant contends that pervasive misuse of police authority here implicates due process concerns and points to dictum in our cases which suggests that indictments might be dismissed where police conduct constitutes "action malum in se." See United States v. Gonzales, 539 F.2d 1238, 1239-40 (9th Cir.1976). While we do not preclude the possibility that police involvement in crime that falls short of sharing in the creative act might violate the due process clause, the police conduct here meets constitutional standards.

    We acknowledge that the relationship between the police and Reynolds was not shiny-bright. Reynolds asserts that the police illegally bribed and coerced him into working as an informer, with specific instructions to enter into a criminal conspiracy in order to set up a narcotics bust. There is some support for this allegation in the record. In June of 1980, Sergeant McNight of the LAPD arrested Reynolds, who was then on federal parole, in an unrelated case. Reynolds testified at trial that McNight threatened to report parole violations to Reynolds' parole officer unless Reynolds agreed to work as a police informant...

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