Beauregard v. Wingard

• Decision Date: 20 June 1966
• Docket Number: No. 20332.,20332.
• Citation: 362 F.2d 901
• Parties: Maurice Emile BEAUREGARD, Appellant, v. William H. WINGARD and Ernest C. Michael, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.2d 901 (1966)

Maurice Emile BEAUREGARD, Appellant, v. William H. WINGARD and Ernest C. Michael, Appellees.

No. 20332.

United States Court of Appeals Ninth Circuit.

June 20, 1966.

James Schwartz, Encino, Cal., for appellant.

James L. Focht, McInnis, Focht & Fitzgerald, San Diego, Cal., for appellees.

Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges.

MERRILL, Circuit Judge:

This is an appeal from judgment in favor of the police in a suit under the Civil Rights Act, Rev.Stat. § 1979 (1875), 42 U.S.C. 1983 (1964).¹ Appellant, Beauregard, was arrested, detained in jail and prosecuted for the crime of bookmaking, Calif.Penal Code 337a(1) and (3).² After trial, before court without jury, appellant was acquitted.³ Now appellant claims that this arrest, jail detention, and prosecution violated his civil rights.

Appellant is a citizen of Oceanside, California, engaged in the tile business. Appellee Wingard is the Oceanside Chief of Police. Appellee Michael is an Oceanside police lieutenant. Appellant was arrested outside his store by Michael. Michael and an undercover agent named Cowley (brought in from San Diego) had been instructed by Wingard to attempt to place a bet on a horse race with appellant. While Michael waited outside, Cowley entered appellant's store.

According to Cowley's testimony the following transpired. Cowley told appellant that he was a friend of Jimmy Cusenza and that Jimmy had told him about the "set up." (Jimmy Cusenza, according to the record, was at one time the owner of a bar in Oceanside which required special police surveillance. Cusenza also had been convicted of gambling and had been denied a bail bond broker's license because of his poor character.) Cowley then told Beauregard he was interested in betting on "Old Snuggler." Beauregard then called to a woman in the front of the store with whom Cowley had, on first entering, spoken. "Hey, Tony, that is the same Caliente pig you are betting on." Cowley then asked Beauregard who the lady was. On learning she was Beauregard's wife, Cowley said that he hadn't said anything to her because he didn't know if she knew about the "set up." Cowley then placed a ten dollar bet with Beauregard, who remarked, "Boy, when Belmont opens, I will really make book."⁴ Beauregard then left the store headed for the racetrack. Cowley followed, signalling Michael that Beauregard had taken the bet. Michael arrested Beauregard and took him to the police station, where he was booked. His prosecution and acquittal in the state court followed.

In the instant action Beauregard contends that the arrest by Michael violated his civil rights. He also contends that Wingard instituted his investigation without reasonable grounds upon which to base a suspicion that appellant was engaged in bookmaking; that the investigation was motivated by malice because of certain political attacks by Beauregard on Wingard; that the arrest and prosecution under these circumstances violated his civil rights.

After a full trial certain issues were submitted to the jury for special verdict. Although that verdict did not favor Wingard, it completely exonerated Michael. The jury found that: (1) Prior to the arrest appellee Wingard did not have reasonable grounds upon which to base a suspicion that appellant was engaged in bookmaking. (2) Wingard was motivated by malice and personal bias against appellant when he directed Cowley and Michael to attempt to place a bet with appellant and did not act in the interests of law enforcement.⁵ (3) Michael was unaware of Wingard's motivation and was not so motivated himself and did not arrest appellant for any reason other than in the interests of law enforcement. (4) In making the arrest Michael did have reasonable grounds to believe that appellant had violated the bookmaking statute. (5) Michael made a full and fair disclosure to the prosecuting attorney of material events leading up to the arrest. (6) In signing the prosecution complaint Michael did not do so on orders from Wingard.

The District Judge supplemented the special verdict with certain findings of fact and rendered judgment in favor of appellees. The principal assignment of error challenges the judgment of the District Court as being not in accordance with the jury's special verdict. It is contended that the verdict required judgment for appellant. We do not agree.

Although the circumstances under which an arrest without probable cause gives rise to a claim under the Civil Rights Act may not yet be clearly established, see, e. g., Note; The Civil Rights Act of 1871: Continuing Vitality, 40 Notre Dame Law., 70, 80-84 (1964), it should in any event be clear that where probable cause does exist civil rights are not violated by an arrest even though innocence may subsequently be established.

The jury's findings do not establish that appellant was arrested without probable cause. Quite to the contrary, it was expressly found that Michael had probable cause for the arrest. As for Wingard's involvement, it may simply be said that if an investigation succeeds in producing evidence of crime, probable cause for arrest is not nullified by the fact that the otherwise successful investigation was maliciously inspired.

Even under appellant's version of what occurred there is no question but that he committed the acts forbidden by California Penal Code, § 337a(3): He accepted money from Cowley to take to the racetrack and bet for Cowley.

Appellant argues that the jury's findings establish as matter of law that he was entrapped into commission of his crime⁶ and that such entrapment destroys probable cause for arrest. Assuming arguendo that such would be the result, the same argument was made to the trial court and was rejected,⁷ the court concluding on the basis of its own findings that "plaintiff was neither entrapped nor induced to accept the bet."

Appellant contends that the record establishes that the District Court's findings were clearly erroneous and that entrapment had been established as a matter of law. We do not agree.

Traditional formulations of entrapment emphasize two considerations: the criminal predisposition of the arrested person; overreaching by the arresting officer in pressure or persuasion to secure the performance of the forbidden acts by the arrested person.⁸

Thus whether appellant was entrapped would depend not on the motive of Wingard in initiating the investigation but on what took place between appellant and Cowley at the time that the bet transaction occurred and on the evidence of criminal predisposition there disclosed. By his testimony, which the District Judge credited, Cowley was not guilty of any overreaching. Further he was justified in believing that appellant was not innocent of criminal intent but had a predisposition to engage in bookmaking; was, indeed, already so engaged and eagerly looking forward to an opportunity to enlarge the scope of his unlawful operations.

Upon this record we cannot say that the court's findings with respect to entrapment were clearly erroneous; that appellant had not given Cowley and...