U.S. v. Winslow, s. 91-30043

• Decision Date: 14 May 1992
• Docket Number: Nos. 91-30043,91-30044 and 91-30091,s. 91-30043
• Citation: 962 F.2d 845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert J. WINSLOW, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stephen E. NELSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Procter J. BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 845

962 F.2d 845

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. WINSLOW, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stephen E. NELSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Procter J. BAKER, Defendant-Appellant.

Nos. 91-30043, 91-30044 and 91-30091.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 3, 1992.

Decided April 1, 1992.

As Amended May 14, 1992.

Douglas Vander Boegh, Churchill & Vander Boegh; Gar Hackney, Lyons, Scott, Hackney & Jackson, Boise, Idaho; and Everett D. Hofmeister, Coeur d'Alene, Idaho, for defendants-appellants.

Ronald D. Bowen, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before HUG, NOONAN and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

Appellants Robert J. Winslow and Stephen E. Nelson, members of an organization known as the Aryan Nations, traveled from Hayden Lake, Idaho to Seattle, Washington for the purpose of exploding a bomb in a gay bar. They were arrested in Washington after they had bought the components for the bomb, but before they had assembled it. They had been accompanied on the trip by Rico Valentino, an undercover informant who had penetrated the Aryan Nations organization.

Winslow, Nelson and Procter J. Baker, a coconspirator who had remained in Idaho, were convicted of conspiracy to build a pipe We have jurisdiction of these appeals pursuant to 28 U.S.C. § 1291, and we affirm. The relevant facts are set forth in the discussion of the various issues.

                bomb and travel in interstate commerce to kill, maim, or wound human beings, in violation of 18 U.S.C. § 371;  and possession of unregistered destructive devices, in violation of 26 U.S.C. § 5861(c)(d)(f) and (i).   Winslow and Nelson were also convicted of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952;  and carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)
                

UNDERCOVER AGENT JURY INSTRUCTION

The FBI used undercover informant Rico Valentino to monitor the appellants' criminal activity. Much of the evidence against the appellants at trial was supplied by Valentino. Although an entrapment instruction was not requested, the trial court read to the jury an instruction concerning the role of undercover agents. Directly after this instruction, the court instructed the jurors to "examine Mr. Valentino's testimony with greater caution than that of an ordinary witness," and "consider the extent to which it may have been influenced by the receipt of benefits and compensation from the Government."

The appellants chose not to request an entrapment instruction. Nelson and Winslow contend that it was error for the trial court to read the undercover agent instruction in the absence of an entrapment instruction. We reject this argument.

In his opening statement, Nelson's counsel characterized Valentino as a man who had been paid to lie, warned the jury to be careful in believing his testimony, and likened his actions as an undercover agent to a spider pouncing on its prey. Winslow's counsel stated that Valentino had engaged in lies and deceit, and criticized the fact that he had been paid over $90,000 as an informant. Nelson testified that Valentino bought him a gun, frequently talked about violence, paid for the trip to Seattle, and paid for gunpowder for the bomb.

In light of the appellants' insinuations that the government and Valentino acted improperly, the district court did not abuse its discretion by giving the undercover agent instruction to help the jury understand the nature of undercover police work. See United States v. Hoyt, 879 F.2d 505, 510-11 (9th Cir.) (not plain error to give undercover agent instruction in absence of entrapment instruction), amended on other grds., 888 F.2d 1257 (1989); United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989) (challenges to jury instructions reviewed for abuse of discretion). Furthermore, the trial court's cautionary instruction, with regard to examining Valentino's testimony, neutralized whatever prejudicial effect the undercover agent instruction may have caused. See United States v. Fera, 616 F.2d 590, 597 (1st Cir.) (improper suggestions arising from undercover agent instruction may be neutralized by curative instruction), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980).

NONDISCLOSURE OF INFORMANT RAP SHEET

Winslow and Nelson contend the government violated their due process rights by failing to provide "Brady" evidence favorable to them and material to their guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963).

The evidence sought was Valentino's unedited FBI rap sheet. The government did not turn over the rap sheet because it felt disclosure would jeopardize Valentino's security. Instead, the government produced a summary of the information contained in the rap sheet. The district court ordered this summary and the underlying rap sheet turned over to the magistrate judge for his determination whether the summary was accurate. The appellants agreed to this procedure, and did not pursue their request for the rap sheet thereafter. In this appeal they contend that a Brady error occurred because Valentino's rap sheet was not turned over to them.

The appellants' reliance on Brady is misplaced. No Brady issue exists in this case, among other reasons, because "the defense was not, in fact, prevented from examining undisclosed statements." United States v. Brown, 562 F.2d 1144, 1151 (9th Cir.1977). Defense counsel never sought disclosure of the rap sheet after they agreed the magistrate judge should compare it with the summary. Defense counsel also failed to request a ruling as to whether the summary was accurate. Under these circumstances, they may not now complain that the rap sheet, which they did not receive, should have been turned over as well as the summary, which they did receive. See id.

OUTRAGEOUS GOVERNMENT CONDUCT

On appeal, all three appellants argue for the first time that the trial court should have dismissed the indictment because it resulted from outrageous government conduct that violated their rights to due process.

As a general rule, we will not address arguments raised for the first time on appeal. Jovanovich v. United States, 813 F.2d 1035, 1037-38 (9th Cir.1987). This rule, however, is a discretionary one, and we have recognized exceptions "(1) when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, (2) when a change in law raises a new issue while an appeal is pending, and (3) when the issue is purely one of law." Id. at 1037.

Here, the issue has been fully briefed and argued on both sides. The facts are not in dispute on this question. Accordingly, we exercise our discretion and consider the issue. See United States v. Phelps, 877 F.2d 28, 31 (9th Cir.1989) (reaching the merits of an outrageous government conduct claim raised for the first time on appeal).

The outrageous government conduct defense is available only when "the government is so involved in the criminal endeavor that it shocks our sense of justice." United States v. So, 755 F.2d 1350, 1353 (9th Cir.1985). Law enforcement conduct becomes constitutionally unacceptable when "the police completely fabricate the crime solely to secure the defendant's conviction." United States v. Emmert, 829 F.2d 805, 811 (9th Cir.1987).

The facts of the present case do not support a claim of outrageous government conduct. At the time Valentino first targeted the appellants for investigation, both Winslow and Nelson had already expressed interest in blowing up establishments frequented by homosexuals. Valentino's acts of supplying Winslow with beer and food, and paying for the trip to Seattle and the bomb components, did not constitute outrageous government conduct. See United States v. Citro, 842 F.2d 1149, 1152-53 (9th Cir.) (undercover agent's conduct in proposing and explaining details of credit card scheme to defendant and in supplying him with counterfeit credit cards did not constitute a due process violation), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). Valentino did not suggest or set up the plan from which the conspiracy evolved. See United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986) (supplying opportunity for defendant to arrange drug sale was not outrageous government conduct because informant did not set up the source from which the defendant would purchase the drugs).

While it is true that Valentino was paid $90,000 by the FBI as compensation for his undercover activity, "the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals." United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980).

Nor did the arrests of Nelson and Winslow before the intended Seattle bomb was assembled, but after its components had been purchased, amount to outrageous government conduct. "Police are not required to delay arrest until innocent bystanders are imperiled." United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990).

MOTION FOR MISTRIAL AND EVIDENTIARY OBJECTIONS

A. Motion for Mistrial

Nelson, Winslow and Baker argue that their convictions should be reversed on all counts because the district court erred in denying their motions for a mistrial. The decision of a district court to deny a motion for a mistrial is reviewed for abuse of discretion. United States v. Davis, 932 F.2d 752, 761 (9th Cir.1991).

On the tenth day of trial, Nelson and Baker moved for a mistrial because the prosecutor referred to the term "Aryan Warrior" when questioning Nelson. They argued at trial, and in this appeal, that the...