783 F.2d 1428 (9th Cir. 1986), 85-5110, United States v. Bogart

Docket Nº:85-5110, 85-5112 and 85-5115.
Citation:783 F.2d 1428
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lynn Dale BOGART, Edward Elbert Wingender, Teodaro Risquez, Defendants- Appellants.
Case Date:March 04, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1428

783 F.2d 1428 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lynn Dale BOGART, Edward Elbert Wingender, Teodaro Risquez,

Defendants- Appellants.

Nos. 85-5110, 85-5112 and 85-5115.

United States Court of Appeals, Ninth Circuit

March 4, 1986

Argued and Submitted Jan. 6, 1986.

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John Heisner, Special Asst. U.S. Atty., argued; Peter K. Nunez, U.S. Atty., John Heisner, Special Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

John S. Moot, Federal Defender, Michael McCabe, San Diego, Cal., Michael S. Meza, Cerritos, Cal., for defendants-appellants.

Appeal From United States District Court for the Southern District of California.

Before FARRIS, PREGERSON, and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge.

Lynn Dale Bogart and Edward Elbert Wingender pled guilty to conspiring to possess cocaine with intent to distribute and to the unlawful use of a communications facility. Teodaro Risquez pled guilty to attempting to possess cocaine.

Bogart and Wingender contend that the government's conduct was so outrageous that it violated their due process rights. The district court held an evidentiary hearing and rejected the defendants' outrageous governmental conduct claim, but made no findings of fact. Bogart and Wingender also argue that the district court, in denying their outrageous governmental conduct claim, erred by using a subjective rather than an objective standard. Risquez appeals the district court's refusal to sentence him to probation on a narcotics "diversion" program.

We remand Bogart's case to the district court for findings of fact on the nature of, and motivation for, the government's conduct. Without the benefit of clear findings of fact, we do not have an adequate record upon which to decide the merits of Bogart's appeal in this particularly fact-oriented area of the law.

We affirm the convictions of Wingender and Risquez because they do not have standing to contest the constitutionality of the governmental conduct directed towards Bogart. However, we remand Risquez' case to the district court for re-sentencing.

FACTS

From a careful review of the undisputed assertions in the briefs submitted to us, we have been able to construct the following chronology of the essential events that produced the prosecution.

Kathleen Thaxton, a San Diego police officer and specially designated United States Marshal, investigated Lynn Dale Bogart in relation to an alleged real estate fraud scheme. Steven Bartlett, a criminal investigator with the County Attorney's office in Salt Lake County, in Utah, also investigated Bogart in relation to a similar fraudulent real estate scheme in Salt Lake City, Utah. After May 1983, Thaxton and Bartlett exchanged information on Bogart. At this time, Bogart and Ralph LaQuay

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were involved in several joint business ventures in Southern California, notably a venture to market posters of past presidential election campaigns.

Between September 20, 1983 and March 1, 1984, Salt Lake County authorities arrested Bogart on four occasions on charges whose merits are open to question. Except for two days, Bogart remained in custody in Salt Lake City awaiting trial on these various charges from October 25, 1983 until March 16, 1984 when a federal grand jury in San Diego indicted Bogart, Wingender, and Risquez on the narcotics conspiracy charges at issue in this appeal. Throughout this period, Bogart was unable to post bail that, at different times depending on the charges pending, varied from $50,000 to $400,000.

During a concededly unlawful search of Bogart's hotel room in Salt Lake City, Investigator Bartlett first encountered LaQuay. Later in San Diego, Officer Thaxton spoke to LaQuay who then decided to become a paid police informant. Beginning on November 15, 1983, Thaxton taped a series of calls between LaQuay and Bogart and between LaQuay and Wingender. LaQuay, acting on Thaxton's instructions, informed Bogart that he had secured an order for a substantial number of posters, and requested Bogart to arrange with the source of the posters to deliver the necessary quantity to LaQuay in San Diego. Later, when the posters necessary to meet the requirements of the fictitious customer were about to be delivered, LaQuay, again acting on Thaxton's instructions, told Bogart that he, LaQuay, could not pay the posters' supplier. At this time, LaQuay, at Thaxton's instruction, told Bogart, untruthfully, that all of LaQuay's money was tied up in eight ounces of cocaine.

During a week of taped telephone conversations, Bogart indicated his pressing need for the proceeds of the posters' sale to pay his bail. He indicated an unwillingness to bring narcotics into what he considered to be a legitimate business transaction, but also represented to LaQuay that, through sources in Salt Lake City, he could dispose of the cocaine to produce the money necessary to fund the posters' transaction. LaQuay, on Thaxton's instructions, resisted any delivery of the cocaine to Salt Lake City. Eventually, LaQuay and Bogart agreed to swap 3500 posters directly for five ounces of cocaine. Whether Bogart or LaQuay proposed the swap is a matter of sharp contention between the defendants and the government.

Acting on Bogart's instructions, Wingender arranged for LaQuay to give the cocaine to Risquez in exchange for the posters at a restaurant in Encinitas, California. After completing the exchange, Risquez was arrested as he left the restaurant with the package containing what he believed to be cocaine.

Bogart and Wingender argue that the government's conduct was so outrageous that it violated their due process rights. Their argument runs as follows: Officer Thaxton and Investigator Bartlett enlisted LaQuay's assistance to obtain information against Bogart on the real estate fraud. To place pressure on Bogart, Thaxton and Bartlett collusively engineered a series of meritless arrests and excessive bail requests that kept Bogart in continuous custody for an extended period. Unable to obtain any incriminating evidence against Bogart relating to real estate fraud, Thaxton determined to secure Bogart's conviction by manufacturing a narcotics transaction. Using LaQuay, Thaxton invented a fictitious poster customer to provide Bogart with the potential means to meet his enormous bail. Thaxton then introduced cocaine into the scheme as the only way in which LaQuay could consummate the fictitious posters' sale. Thaxton instructed LaQuay to propose the direct switch of the posters for the cocaine, and to resist Bogart's attempts to dispose of the cocaine in any other way. Thus, the defendants argue, the prosecutions are entirely the product of Thaxton's vindictive and deliberate scheme to secure Bogart's conviction at any cost.

The government denies that Thaxton and Bartlett acted collusively. The government

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argues that the charges against Bogart were the result of the independent activities of Salt Lake County authorities and that the high bail requests were either proper or the result of "clerical mistake." The fictitious posters' customer was introduced to assure Bogart that LaQuay was actively pursuing their joint business interests and to alleviate any suspicion Bogart might have that LaQuay was assisting the authorities. The cocaine scheme, according to the government, was not designed originally to catch Bogart but to trap a corrupt prison guard at Salt Lake County Jail with whom Bogart had struck up a relationship. The government expected Bogart to send the guard to pick up the cocaine. Instead, Bogart insisted on involving Wingender, and the government had to go along with this arrangement or risk exposing its stratagem. The proposal to swap the posters directly for the cocaine came from Bogart, and the actual exchange was planned by Bogart and executed by Wingender and Risquez.

At trial, Bogart and Wingender moved to dismiss their indictments on the ground that the government's conduct was so outrageous that prosecuting the crime violated their due process rights. The district court conducted an evidentiary hearing on the defendants' motion to dismiss. The court made no findings of fact. Denying the motion, the district court concluded:

I was prepared, Mr. Moot, [Federal Public Defender] to deny your motion out of hand, but you came as close to convincing me, or much closer to convincing me that your motion ought to be granted than any motion of that type that I've heard in fourteen years.... I really am concerned, Mr. Heisner [U.S. Attorney]; I think probably, and it's probably the way I am going to go, is that it is not to the extent that it's dismissible at this time, but certainly there is an enormous issue of entrapment, and if it were not for what I understand Mr. Bogart's background to be and the admissibility of all that criminal background, I suspect the jury would walk him out in a minute on the entrapment defense ... I really do not approve of the conduct of the government in this case, but I do not feel that it rose to the level of outrageous conduct. My problem with the government as far as Mr. LaQuay is concerned starts with the mention of cocaine, the eight ounces of cocaine on the 20th of February, or the 24th, whichever it was, but I say, I do not approve of the government's conduct in that regard, but deny the motion.

The defendants entered conditional guilty pleas under Fed.R.Crim.P. 11(a)(2). Bogart and Wingender pled guilty to violations of 21 U.S.C. Secs. 846 and 841(a)(1) (possession with intent to distribute controlled substances), and seven violations of 21 U.S.C. Sec. 843(b) (unlawful use of communications facility). Risquez pled guilty to attempting to possess a controlled substance in violation of 21...

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