Sanchez v. U.S.

• Decision Date: 10 February 1995
• Docket Number: No. 93-56315,93-56315
• Citation: 50 F.3d 1448
• Parties: Javier Hincapie SANCHEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1448

50 F.3d 1448

Javier Hincapie SANCHEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 93-56315.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 10, 1995 ^*.

Decided March 21, 1995.

Javier Hincapie Sanchez, Memphis, TN, in pro se, for petitioner-appellant.

Robert T. Scott, Asst. U.S. Atty., Los Angeles, CA, for respondent-appellee.

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

Before: BROWNING, D.W. NELSON, and HAWKINS, Circuit Judges.

D.W. NELSON, Circuit Judge:

Javier Hincapie Sanchez appeals the district court's denial of his motion under 28 U.S.C. Sec. 2255 to vacate his guilty plea and sentence in his criminal conviction for conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1). Hincapie Sanchez argues that (1) the government's actions in this case constituted outrageous government conduct; (2) the prosecution committed a Brady violation by failing to disclose that two men who visited Hincapie Sanchez in prison were government informants;

(3) these government informants coerced Hincapie Sanchez to plead guilty; (4) the visit by the government informants outside the presence of Hincapie Sanchez's attorney violated his Sixth Amendment right to counsel; and (5) Hincapie Sanchez's defense attorney and his attorney for the Sec. 2255 motion provided ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

BACKGROUND

In February 1989, the FBI began an investigation of Hincapie Sanchez after two confidential government informants identified him as a drug dealer. Informant Loukas Christodoulou introduced Hincapie Sanchez to FBI agent Kathleen Carson, who was posing as a wealthy businessperson. After negotiations, Hincapie Sanchez agreed to sell 24 kilograms of cocaine to Carson. On March 10, 1989, after Hincapie Sanchez, Christodoulou, and another individual packed and transported the cocaine to a designated location, Carson and Los Angeles County Sheriff's Department (LASD) officials arrested Hincapie Sanchez.

On May 18, 1989, Hincapie Sanchez pleaded guilty to conspiracy to distribute cocaine and to possession with intent to distribute. During the plea colloquy, Hincapie Sanchez stated that he had not been subject to threats or promises of favors or leniency. On July 31, 1989, the court sentenced him to 235 months' imprisonment, to be followed by five years of supervised release.

On December 12, 1990, Hincapie Sanchez filed a motion under 28 U.S.C. Sec. 2255 to vacate and set aside his guilty plea and the sentence. He argued that the government improperly failed to disclose that Willie and Oscar Murcia, who supplied some of the cocaine for the deal and later persuaded him to plead guilty, had been informants for the LASD. Hincapie Sanchez further argued that had he known that the Murcias were informants, he would have asserted defenses of entrapment and outrageous government conduct rather than plead guilty. He also alleged that his plea was not knowing and voluntary because he pleaded guilty on the understanding that the Murcias would arrange for his release and that his plea would prevent the indictment of his wife.

At an evidentiary hearing on the motion, Hincapie Sanchez testified that Willie Murcia had supplied some of the cocaine for the deal, and this testimony was corroborated by a recording of Willie Murcia. However, the courier who had brought the cocaine to Hincapie Sanchez, an informant named Tony Avila, testified that he had acted under instructions from a dealer named Carlos Enrique Orozco ("Cacique"), with the approval of Avila's government contact, LASD Deputy Sheriff Steve Nichols, who regularly monitored Avila's work for Cacique. Although Avila knew that Murcia was both a drug dealer who was acquainted with Cacique and an informant who worked with Nichols, he did not know that Murcia had supplied the drugs for this deal. The prosecuting attorneys, Agent Carson, and another agent provided statements that although they were aware that Murcia was an informant for the LASD, they had not known that Murcia had supplied the drugs or had induced Hincapie Sanchez to plead guilty.

In addition, several witnesses testified that the Murcias had talked of their ability to secure the release of prisoners through contacts in Washington, D.C., and that the Murcias had told Hincapie Sanchez that they could secure his release if he pleaded guilty. The Murcias also told him that pleading guilty would prevent the indictment of his wife and of the Murcias themselves.

Based on this evidence, the magistrate judge recommended denial of the section 2255 motion on the grounds that (1) even though Willie Murcia had both supplied the drugs and persuaded Hincapie Sanchez to plead guilty, the prosecutors had no knowledge of this involvement, and (2) the plea resulted not from coercion, but from Hincapie Sanchez's expectation that the Murcias would secure his release from prison by illegal means. The district court adopted the magistrate judge's findings of fact and conclusions.

STANDARD OF REVIEW

This court reviews a denial of a section 2255 motion de novo. Frazer v. United

States, 18 F.3d 778, 781 (9th Cir.1994). The district court's findings of fact are reviewed for clear error. Campbell v. Wood, 18 F.3d 662, 681 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994).

DISCUSSION

I. Outrageous Government Conduct

Hincapie Sanchez argues that the totality of the government's activity in this case constituted outrageous government conduct, in violation of the Fifth Amendment Due Process Clause. This court reviews the issue of outrageous government conduct de novo. United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). We reject this argument.

To prevail on an outrageous government conduct claim under the facts in this case, Hincapie Sanchez would need to show that the government's conduct amounted to the "engineering and direction of [a] criminal enterprise from start to finish." United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir.1991) (quoting Smith, 924 F.2d at 897), cert. denied, --- U.S. ----, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). In this instance, it is undisputed that the government acted as the buyer in this transaction. However, Hincapie Sanchez's claim that the government was also the supplier requires a finding not only that Willie Murcia supplied drugs for this deal, but that he was acting as a government agent at the time. See United States v. Simpson, 813 F.2d 1462, 1467 (9th Cir.) (noting that actions of informants can only constitute outrageous government conduct if attributable to the government itself), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.1978).

We find that the district court's conclusion that Willie Murcia was not a government agent at the time of the sale was not clearly erroneous. Willie and Oscar Murcia were known government informants for the LASD, had worked previously with Deputy Steve Nichols, and had been linked to Cacique, the drug dealer whom Tony Avila (the courier) claimed had provided the drugs in this case. However, these facts do not prove that they were agents for the government in this particular instance, absent a showing that the government directed or supervised the conduct in question. See United States v. Fontenot, 14 F.3d 1364, 1369 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 431, 130 L.Ed.2d 343 (1994); United States v. Busby, 780 F.2d 804, 807 (9th Cir.1986) (stating that prior service as an informant does not establish agency for later actions when the government was "wholly unaware" of those activities). Agent Carson specifically denied any knowledge of the supplier of the cocaine or of the Murcias' involvement in the drug transaction. Although Hincapie Sanchez testified that Willie Murcia had supplied some of the drugs for the deal, he admitted that he had negotiated with Murcia alone, outside the presence of other informants and agents. Moreover, Avila testified that he did not know that Murcia was involved in this deal. Since Avila assumed that Cacique was the only supplier, it is reasonable to conclude that Nichols, who was informed of the transaction by Avila, did not know that the Murcias were involved. The district court's factual finding, therefore, was not clearly erroneous.

Hincapie Sanchez's outrageous government conduct claim also relies on the premise that the government, through the Murcias, induced him to plead guilty. We find, however, that the district court's conclusion that the Murcias were not government agents at the time that they visited Hincapie Sanchez in prison was not clearly erroneous. Although Nichols and Christodolou had been asked to monitor the Murcias' drug-related activities, there is no evidence that the government monitored the substance of their jailhouse conversations with Hincapie Sanchez. Nor is there any evidence that they were acting under instructions from the government. Aside from Agent Carson's admission that she was aware that the Murcias had visited Hincapie Sanchez, the only evidence on this point is the testimony by Agent Carson and the prosecuting attorneys that they had no knowledge of promises made by the Murcias to Hincapie Sanchez to induce him to plead guilty. Because the Murcias' visit to prison was not attributable to the government, it could not constitute outrageous government With our findings that the Murcias were not acting as government agents in this case, Hincapie Sanchez's outrageous government conduct claim rests solely upon the facts that a government informant, Christodolou, introduced Hincapie Sanchez to an undercover agent/buyer and that Christodolou helped package the drugs. These facts do not constitute outrageous government conduct. See Sm...