813 F.2d 1462 (9th Cir. 1987), 84-5301, United States v. Simpson

Docket Nº:84-5301.
Citation:813 F.2d 1462
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Darrel Paterson SIMPSON, Robert Macriner Anderson, and James Roy Freeman, Defendants-Appellees.
Case Date:April 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1462

813 F.2d 1462 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellant,

v.

Darrel Paterson SIMPSON, Robert Macriner Anderson, and James

Roy Freeman, Defendants-Appellees.

No. 84-5301.

United States Court of Appeals, Ninth Circuit

April 3, 1987

Argued and Submitted April 11, 1986.

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J. Brendan O'Neill and Joshua C. Needle, Santa Monica, Cal., and Donald Etra, Charles Pereyra-Suarez, Joan Howarth, Paul Hoffman, Los Angeles, Cal., for defendants-appellees.

James D. Henderson and D. Blair Watson, Los Angeles, Cal., for plaintiff-appellant.

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Luis S. Katz, San Diego, Cal., Ephraim Margolin, Los Angeles, Cal., for the amicus.

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

Before HUG, NORRIS and HALL, Circuit Judges.

NORRIS, Circuit Judge:

In 1983 the FBI employed Helen Miller as an informant in an investigation of defendant Darrel Simpson, then a suspected heroin dealer. At that time, Miller was known by the FBI to be a prostitute, a heroin user, and a fugitive from Canadian drug charges. Posing as stranded travelers at the Los Angeles International Airport, Miller and a fellow informant, Karen Eccles, enticed Simpson into giving them a ride into town. They ended up at Simpson's apartment where they partied with Simpson and a friend, Tom Marino. Shortly thereafter Miller and Simpson became sexually intimate. In due course Miller introduced Simpson to "friends" who she said were interested in buying heroin. The "friends" were in fact FBI undercover agents. After a deal went down, Simpson and his two co-defendants, Robert Anderson and James Freeman, were arrested and indicted on various drug charges.

After an eight-day evidentiary hearing, the district court dismissed the indictment on the ground that the FBI's conduct in recruiting and using Miller as an informant was so offensive that it violated the due process clause of the Fifth Amendment. In his ruling, Judge Hatter relied upon Chief Justice Rehnquist's oft-quoted dictum in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973), that the Supreme Court "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction...." Judge Hatter found that the following conduct, taken as a whole, was outrageous: first, "the Government's manipulation of Helen Miller into becoming an informant;" second, "the Government's continued employment of Miller despite her known status as a heroin addict and prostitute, and despite her numerous arrests;" and third, "the Government's continued use of Miller as an informant after learning of her sexual involvement with Darrel Simpson." Findings of Fact and Conclusions of Law Dismissing the Indictment on Due Process Grounds ("Findings "), at 3. Judge Hatter concluded that the "Government cannot be permitted to stoop to these depths to investigate suspected criminal offenders" and that the government must be "den[ied] the fruits of its heinous acts." Id. at 4.

Judge Hatter also suppressed evidence obtained from FBI wiretaps of Simpson's home telephone and several public telephones he regularly used. Judge Hatter found that the affidavit supporting the wiretap application contained both material misrepresentations and omissions and that, when corrected, the affidavit failed to indicate that wiretapping was "necessary" as required by 18 U.S.C. Sec. 2518.

The dismissal of the indictment is a final decision appealable under 28 U.S.C. Sec. 1291. 1 We reverse the order dismissing the indictment, but we affirm the order suppressing the wiretap evidence.

I

THE DUE PROCESS ISSUE

We agree with Judge Hatter that Chief Justice Rehnquist's dictum in Russell left the door open to a due process claim when the conduct of law enforcement officers is " 'so grossly shocking and so outrageous as to violate the universal sense of justice.' " United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)). See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1147, 89 L.Ed.2d 410 (1986) ("We do not

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question that [in certain circumstances] ... police deception might rise to a level of a due process violation."). Our circuit has continued to entertain complaints by defendants that their outrageous treatment by law enforcement officers warrants dismissal of their indictment. See, e.g., United States v. Bogart, 783 F.2d 1428, 1431-33 (9th Cir.) (discussing history of the doctrine's evolution and application in the Ninth Circuit), vacated on other grounds with respect to one defendant sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986). However, we have acknowledged that "the due process channel which Russell kept open is a most narrow one." Ryan, 548 F.2d at 789.

Three discrete aspects of the FBI's investigation of Simpson prompted Judge Hatter to conclude that when "taken as a whole" the FBI conduct here violated due process: (1) the FBI's "manipulation" of Miller into becoming an informant; (2) the FBI's continued use of Miller as an informant after learning that she had become sexually involved with Simpson; and (3) the FBI's continued use of her after learning that she was still involved in unrelated criminal activity. After reviewing each of these aspects of the FBI's conduct, we conclude that the conduct was not so outrageous as to justify dismissal of the indictment on due process grounds. 2

A

THE CONTINUED USE OF AN INFORMANT WHO HAS SEX WITH THE SUSPECT

We consider first whether the FBI's continued use of Miller as an informant after learning of her sexual involvement with Simpson raises due process concerns. Judge Hatter found that Miller, acting on instruction by the FBI, pretended to be a close personal friend of Simpson's for a period of over five months. During that time Miller had sex with him on a regular basis. 3 Findings, at 2-3. Simpson argues that Miller's use of sex to deceive him into believing she was an intimate friend just so she could lure him into selling heroin to undercover FBI agents constituted an outrageous invasion of his constitutionally protected realms of privacy and autonomy. Although we do not necessarily condone this investigatory tactic, we hold that the government's conduct was not so shocking as to violate the due process clause.

We recognized in Bogart that the outrageous conduct doctrine bars prosecution of defendants in "that slim category of cases in which the police have been brutal, employing physical or psychological coercion against the defendant." 783 F.2d at 1435; see also United States v. Kelly, 707 F.2d 1460, 1476 n. 13 (D.C.Cir.) (per curiam) (citing cases), cert. denied, 464 U.S. 908, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). This case law evolved from the Russell Court's citation to Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), as an example of activity which shocks the conscience. 411 U.S. at 432, 93 S.Ct. at 1643. In Rochin, police officers broke into the defendant's bedroom, attempted to pull drug capsules from his throat, and finally forcibly pumped his stomach to retrieve the capsules. The Supreme Court found these

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law enforcement methods "too close to the rack and the screw to permit of constitutional differentiation." 342 U.S. at 172, 72 S.Ct. at 209. Relying on Rochin, we similarly found that the government's conduct violated due process when border patrol officers forcibly removed narcotics packets from a defendant's rectum while he was handcuffed and held spreadeagled across the table by other officers. Huguez v. United States, 406 F.2d 366, 381 (9th Cir.1968). In contrast to these cases, we have rejected due process challenges to highly intrusive searches for contraband secreted in body cavities and to forced physical treatment to recover swallowed contraband in contexts where these actions were undertaken without "coercion, violence, or brutality to the person." Irvine v. California, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1954) (distinguishing Rochin); see, e.g., Blefare v. United States, 362 F.2d 870 (9th Cir.1966) (rejecting outrageous conduct challenge to insertion of tube into defendant's stomach to force him to vomit swallowed drug capsules when pain was limited and procedure was performed by licensed physician); see also Kelly, 707 F.2d at 1476 ("The requisite level of outrageousness ... is not established merely upon a showing of obnoxious behavior or even flagrant misconduct on the part of the police; [due process] is not transgressed absent 'coercion, violence or brutality to the person.' ") (quoting Irvine, 347 U.S. at 133, 74 S.Ct. at 383).

We acknowledge that Simpson may have suffered severe emotional trauma and felt stripped of his dignity upon learning that Miller's apparent affection for him was contrived and designed to hasten his downfall. However, because Simpson's treatment by Miller falls short of the brutality and coercion underlying previous successful outrageous conduct challenges and the government cannot be assigned responsibility for his treatment as easily as it could in these successful challenges, we decline to find a due process violation on these unique facts.

First, the deceptive creation and/or exploitation of an intimate relationship does not exceed the boundary of permissible law enforcement tactics. We have recognized that "the government may use artifice and strategem to ferret out criminal activity," Ramirez, 710 F.2d at 541, and to that end informants must be permitted to use deceit by...

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