U.S. v. Barboa, 84-2611
Decision Date | 29 November 1985 |
Docket Number | No. 84-2611,84-2611 |
Citation | 777 F.2d 1420 |
Parties | The UNITED STATES of America, Plaintiff-Appellee, v. Eddie BARBOA, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Charles Roberts of El Paso, Tex. (James T. Allen and Charles L. Scruggs of Johnson, Allen & Peterson, P.C., El Paso, Tex., on brief), for defendant-appellant.
Stanley Kotovsky, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Don J. Svet, First Asst. U.S. Atty., on brief), Albuquerque, N.M., for plaintiff-appellee.
Before BARRETT and SEYMOUR, Circuit Judges, and GREENE, * District Judge.
Eddie Barboa appeals from the denial by the district court of his motion to vacate sentence and his application for bond pursuant to 28 U.S.C. Sec. 2255 (1982). The questions presented are: (1) whether an uncontroverted sworn allegation that his sole co-conspirator was a government informant warranted an evidentiary hearing; and (2) whether allowing natural gas to escape from an open line constitutes an "explosive" within the meaning of 18 U.S.C. Sec. 844(i) and (j) (1982). We reverse in part and remand to the district court for an evidentiary hearing.
On February 25, 1982, Barboa pled guilty to a one-count information charging conspiracy to damage and destroy by explosives a building used in an activity affecting interstate commerce. See 18 U.S.C. Secs. 371 and 844(i), (j). At his guilty plea, he admitted the following facts:
Rec., vol. I, at 68. The district court determined that the plea was voluntary, found Barboa guilty of conspiracy, and thereafter sentenced him to three years' imprisonment, to run consecutively with an unrelated sentence.
On October 3, 1984, Barboa filed the motions and accompanying memoranda which are the subject of this appeal. The district court issued a summary denial.
This court must conduct a two-step inquiry in reviewing a habeas corpus claim under 28 U.S.C. Sec. 2255. First, we must determine whether the petitioner's allegations, if proved, would entitle him to relief. If they would, we must then decide whether the district court abused its discretion in summarily denying an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 307-09, 318, 83 S.Ct. 745, 754-55, 759, 9 L.Ed.2d 770 (1963).
Barboa has alleged that the man with whom he purportedly conspired was actually a government informant. We have stated in dicta, and we now hold, that there can be no indictable conspiracy involving only the defendant and government agents or informers. 1 See United States v. Newman, 733 F.2d 1395, 1402 (10th Cir.1984). A conspiracy is an agreement between two or more people to commit an unlawful act, and there is no real agreement when one "conspires" to break the law only with government agents or informants. The elements of the offense are not satisfied unless one conspires with at least one true co-conspirator. United States v. Escobar de Bright, 742 F.2d 1196, 1199 (9th Cir.1984). Conspiracy is a crime in part because of the dangers of concerted action, but these risks do not exist when the only co-conspirator is a government agent:
Id. at 1199-1200. This rule also deters the "manufacturing" of crime which might occur if the mere presence of government agents could create indictable conspiracies. Id. at 1200. If it were determined that Barboa "conspired" only with a government agent or informant, the conviction and sentence could not stand. See infra note 3.
Having decided that Barboa's allegations, if proved, would entitle him to relief, we must consider whether the trial judge abused his discretion in summarily denying him an evidentiary hearing. 2
In his motion to vacate sentence, Barboa asserted that the individual with whom he supposedly conspired was in fact a government agent. This allegation was unsupported by facts or information, but it was put forth in a sworn pleading. It is not controverted by anything in the record. 3 On appeal, the government acknowledges that Robert Edwards was an unindicted co-conspirator and responds only that the allegation is "factually inaccurate." Brief of Appellee at 3-4. While it would have been preferable for Barboa to plead facts in support of this assertion, his allegation strikes at the heart of the crime and is so substantial that we believe it was an abuse of discretion for the district court to deny his request for a hearing. Cf. Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759 ( ).
We therefore reverse the dismissal of the district court and remand for an immediate evidentiary hearing to determine whether Robert Edwards was a government agent or informant when he purportedly conspired with Barboa. If he was, the district court must vacate Barboa's conspiracy conviction and sentence.
Barboa argues next that he could not be guilty of conspiring to damage or destroy a building affecting interstate commerce by an explosive or incendiary device, see 18 U.S.C. Sec. 844(i) and (j), because allowing natural gas to escape from an open line does not constitute an "explosive" within the meaning of the statute. The law of this circuit is dispositive of this claim, and we therefore affirm the order of the district court on this issue. See United States v. Ramsey, 726 F.2d 601, 603 (10th Cir.1984) ( ); United States v. Bunney, 705 F.2d 378, 380-81 (10th Cir.1983) ( ); United States v. Poulos, 667 F.2d 939, 942 (10th Cir.1982) ( ).
Because Barboa is presently incarcerated on an unrelated charge, the district court's denial of his application for bond is affirmed. Were it not for his guilty plea to conspiracy, however, he might be eligible for parole. Under these circumstances, the district court should proceed expeditiously to determine whether Barboa's alleged co-conspirator was in fact a government agent.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
* The Honorable J. Thomas Greene, United States District Judge, District of Utah, sitting by designation.
1 This rule has been adopted by every circuit addressing the issue. See, e.g., United States v. Escobar de Bright, 742 F.2d 1196, 1199-1200 (9th Cir.1984); United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73...
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