U.S. v. Barrera-Moreno, BARRERA-MORENO and E
| Citation | 951 F.2d 1089 |
| Decision Date | 17 December 1991 |
| Docket Number | 90-10357,Nos. 90-10330,BARRERA-MORENO and E,90-10393,s. 90-10330 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Hector Benjaminugene Benjamin Herndon, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. William Joseph KUNKEL, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Daniel RUIZ, Jr., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joseph Douglas Wilson, U.S. Dept. of Justice, Washington, D.C.; Jerry R. Albert, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellant.
Sean Bruner, Ralls & Bruner, Tucson, Ariz., for defendant-appellee Barrera-Moreno.
Richard B. Jones, Tucson, Ariz., for defendant-appellee Herndon.
John G. Bogart, Tucson, Ariz., for defendant-appellee Kunkel.
Anthony P. Brooklier, Beverly Hills, Cal., for defendant-appellee Ruiz.
Appeals from the United States District Court for the District of Arizona.
Before CANBY and KOZINSKI, Circuit Judges, and NIELSEN, District Judge. *
In each of these cases, the government appeals from the judgment dismissing the indictments on drug charges against appellees on the ground of outrageous government conduct. A jury convicted Kunkel and Ruiz, but the indictment was dismissed before sentencing. The indictment against Barrera and Herndon was dismissed before trial. We reverse.
The issue in the appeals centers on the government's use of a confidential informant instrumental in obtaining the indictments. Evidence at the trial of Ruiz and Kunkel indicated the informant supplied cocaine in ounce lots to Ruiz, with whom the informant had been acquainted since 1987, in exchange for work performed by Ruiz at the informant's business. Ruiz was to sell the cocaine, but instead kept it for his personal use. Sometime in 1989, the informant told Ruiz he could no longer supply cocaine and the two agreed that Ruiz would obtain cocaine in kilo amounts for the informant to sell. Ruiz was to keep two ounces from each kilo as his payment. When the informant failed to pay the person from whom Ruiz obtained the cocaine, Ruiz and Kunkel approached the informant to demand payment. The informant obtained $3000 which he gave to Kunkel. Ruiz and Kunkel were to meet the informant later to deliver another kilo of cocaine and were arrested at that time. Defendants presented an entrapment defense and the court instructed the jury on entrapment.
Ruiz and Kunkel each filed motions to dismiss the indictment because of outrageous government conduct. After the jury returned a guilty verdict, the court questioned the prosecutor on the informant's activity, particularly regarding defense testimony that the informant had used cocaine with Ruiz on several occasions. The prosecutor stated that it was his understanding that the informant was being tested for cocaine use at least once a week. At the sentencing hearing, the court granted the motion with respect to Ruiz, finding the informant was not being tested during the time of his involvement with the defendants and that testing did not begin until August 1989. The informant was tested 15 times over the course of the next four months and tested positive four times. The court denied the motion with respect to Kunkel because the informant's involvement with Kunkel was less than with Ruiz. Kunkel's sentencing was continued but the court dismissed the indictment against Kunkel in a one-sentence order before the rescheduled sentencing date.
Barrera and Herndon were also indicted as a result of the informant's activities. At a hearing on their motion to dismiss prior to trial, the informant admitted to cocaine use. The court dismissed the indictments in another one-sentence order.
Following these developments, the court issued a Memorandum of Decision constituting its findings and the basis for its dismissal of the indictments. The memorandum applied to all four appellees. The court detailed the chronology of events surrounding the informant's arrests, convictions, and subsequent activities as an informant. The court found the informant and Barrera frequently used cocaine together to the point that Barrera became addicted, that Barrera was hospitalized after the informant gave him some sleeping pills, that an attorney did not inform Barrera of the informant's activity even though he had to be aware of them, 1 and that Barrera supplied the informant with cocaine as payment for a favor in getting unrelated charges against Barrera dropped. The court also found that the informant supplied Ruiz with cocaine for personal use "to the point where [the informant] was at least partially responsible for Ruiz becoming addicted." The memorandum also summarized evidence from the records regarding the informant's use of cocaine.
The memorandum then noted the court's requests for information regarding the informant's use of cocaine and stated that the failure of the prosecutor or other government agents to come forward with explanations after it became apparent that the informant was not being tested during the investigations was a "tacit admission that there were misrepresentations made to the court." The court reiterated concerns it had expressed about the informant's activity in a previous trial and concluded that the government must face the consequences of the informant's conduct.
A district court may dismiss an indictment on the ground of outrageous government conduct if the conduct amounts to a due process violation. See e.g., United States v. Simpson, 813 F.2d 1462, 1464-65 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987) (Simpson I ). If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss under its supervisory powers. These powers may be exercised for three reasons: to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct. See, e.g., United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991) (Simpson II ).
Dismissal of an indictment on due process grounds is reviewed de novo; dismissal based on the court's supervisory powers is reviewed for abuse of discretion. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991); Simpson I, 813 F.2d at 1465 n. 2. Findings of fact underlying the dismissal are reviewed under the clearly erroneous standard. Restrepo, 930 F.2d at 712. The district court did not clearly indicate whether it had concluded the conduct violated due process or if it was exercising its supervisory powers. We conclude the dismissals were improper under either theory.
To violate due process, governmental conduct must be " 'so grossly shocking and so outrageous as to violate the universal sense of justice.' " Restrepo, 930 F.2d at 712 (citations omitted). Due process is not violated unless the conduct is attributable to and directed by the government. "[P]assive tolerance ... of a private informant's questionable conduct [is] less egregious than the conscious direction of government agents typically present in outrageous conduct challenges." Simpson I, 813 F.2d at 1468. Here, the district court stated it was not saying that the government condoned the conduct of the informant, but that the government had notice of the informant's activity and must have been aware of it. Absent evidence and a factual finding of government direction, however, we can conclude only that the government was guilty of "passive tolerance."
Even if the government had directed the activities of the informant, the government's conduct must amount to the "engineering and direction of [a] criminal enterprise from start to finish." United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). In Simpson I, the court found no due process violation when the government continued to use a known prostitute even after becoming aware she was engaging in sexual activity with the suspect, who was arrested when the prostitute introduced him to FBI agents for a heroin sale. Simpson I, 813 F.2d 1462, 1465-71. Other examples of conduct that does not violate due process include supplying the contraband at issue in the investigation, Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976), and introduction...
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