790 F.2d 802 (9th Cir. 1986), 85-5112, United States v. Wingender

Docket Nº:85-5112.
Citation:790 F.2d 802
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward Elbert WINGENDER, Defendant-Appellant.
Case Date:May 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 802

790 F.2d 802 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward Elbert WINGENDER, Defendant-Appellant.

No. 85-5112.

United States Court of Appeals, Ninth Circuit

May 30, 1986

John Heisner, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before FARRIS, PREGERSON and NORRIS, Circuit Judges.

ORDER GRANTING PETITION FOR REHEARING

Following the filing of our opinion in United States v. Bogart, 783 F.2d 1428 (9th Cir.1986), defendant Wingender petitioned for his case to be reheard under Fed.R.App.P. 40. We grant Wingender's petition for rehearing, vacate our previous order affirming his conviction and awarding costs to the government, and remand the matter to the district court.

In his papers to this court and throughout oral argument, Wingender argued that the government's conduct described in our previous opinion violated his due process rights. In our opinion, we held that, assuming that the alleged governmental conduct occurred, the conduct was targeted at Bogart alone, and that, therefore, Wingender had no standing to raise a constitutional claim based on that conduct. In a petition for rehearing after we had filed our opinion, Wingender argued for the first time on appeal that the government had independently targeted him as well as Bogart. Wingender asserted that government informant LaQuay, acting on Officer Thaxton's instructions, engaged Wingender

Page 803

in incriminating taped conversations and introduced cocaine into conversations between LaQuay and Wingender. Wingender alleged that the government targeted him because he was an informer for state authorities and, as a result, was the object of a "vendetta" by federal officers against certain state officials. The trial transcript confirms that Wingender properly raised these assertions during the district court hearing on his motion to dismiss for outrageous conduct.

While Wingender has no standing to contest governmental conduct aimed at Bogart, he does have standing to raise governmental conduct of which he was the target. As with Bogart's claims...

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