U.S. v. Barger, s. 89-5606

• Decision Date: 04 March 1991
• Docket Number: 89-5607,Nos. 89-5606,s. 89-5606
• Citation: 931 F.2d 359
• Parties: 32 Fed. R. Evid. Serv. 183 UNITED STATES of America, Plaintiff-Appellee, v. Ralph Hubert BARGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 359

931 F.2d 359

32 Fed. R. Evid. Serv. 183

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Hubert BARGER, Defendant-Appellant.

Nos. 89-5606, 89-5607.

United States Court of Appeals Sixth Circuit.

Argued Oct. 5, 1990.

Decided Jan. 23, 1991.

Reconsideration Denied March 4, 1991.

Joseph M. Whittle, U.S. Atty., C. Cleveland Gambill, Asst. U.S. Atty., William F. Campbell, Asst. U.S. Atty. (argued), Louisville, Ky., for plaintiff-appellee.

Paul J. Neel, Jr. (argued), Louisville, Ky., for defendant-appellant.

Before NELSON and NORRIS, Circuit Judges; and HIGGINS, District Judge. ^*

HIGGINS, District Judge.

This case involves an appeal by Ralph Hubert Barger from his jury conviction for conspiracy to violate federal explosives, firearms and arson laws and to convert a thing of value of the United States, in violation of 18 U.S.C. Sec. 371, and for knowingly converting a copy of the official law enforcement intelligence manual regarding the identities and personal data on members and associates of the Outlaws Motorcycle Club ("EPIC manual") knowing it to have been stolen, in violation of 18 U.S.C. Sec. 641, a misdemeanor. For the reasons that follow, we affirm the conviction.

I. Background

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. On August 12, 1986, members of the Outlaws Motorcycle Club shot and killed John Cleve Webb, a member of the Anchorage, Alaska chapter of the Hells Angels, in Louisville, Kentucky. Shortly thereafter, Mr. Barger, a member of the Oakland, California chapter of the Hells Angels, said that it was time to start killing Outlaws again. Edwin Hubert, president of the Anchorage, Alaska chapter also expressed retaliatory sentiment. The Outlaws and the Hells Angels have long been rivals. The Oakland chapter of the Hells Angels is considered the leading chapter of the club, and the appellant is the recognized leader of the Hells Angels.

Mr. Webb's funeral was held in Louisville, and a meeting of some Hells Angels members was held in a Louisville motel room to discuss information they had gathered on the killing. Mr. Barger did not attend the funeral, nor did he attend this meeting. After the meeting, the Hells Angels went to the bar where Mr. Webb was shot to "show a presence" and gather information. They talked to the owner of the bar and offered cash rewards for information.

Shortly thereafter, during a regular meeting of the Oakland Hells Angels chapter, the appellant admitted sending a copy of an "EPIC manual," a government document prepared by the United States El Paso Information Center and stamped "DEA Sensitive," to Mr. Webb's sister, and displayed another copy of the manual and explained how to use it. At this meeting, someone suggested calling the Outlaws to see whether the shooting was an isolated incident and Mr. Barger replied, "call them collect." The manual contained information regarding the Outlaws. Mr. Webb's sister received the manual via express mail from Mr. Barger and turned it over to members of the Hells Angels.

In September 1986, Mr. Hubert, the Anchorage chapter president, instructed Anthony Tait, an officer of the Anchorage chapter who also attended Mr. Webb's funeral, to get the EPIC manual from the appellant. Unknown to any Hells Angels members, Mr. Tait had begun acting as a paid FBI informant in 1984 to infiltrate the Hells Angels organization. Mr. Tait told Mr. Barger in a phone conversation that the FBI was investigating the package the appellant had sent to Louisville. Mr. Barger proposed the alibi that the package contained "sympathy cards." Mr. Tait then asked the appellant if he could borrow the EPIC manual. Mr. Barger lent Mr. Tait the manual for photocopying, telling him to be careful with it and that he was not supposed to have it.

On November 30, 1986, Mr. Barger and Michael O'Farrell (also convicted of conspiracy) attended a meeting of the Oakland chapter. At this meeting, the members circulated a photograph of the two Outlaws who killed Mr. Webb. On January 3, 1987, at a West coast officers' meeting, a photo of the two Outlaws who killed Mr. Webb was again circulated. At this time, Mr. Barger stated that Mr. Webb was killed because he was a Hells Angel.

On January 7, 1987, the appellant and Mr. Tait again discussed retaliation against the Outlaws, as they had on several earlier occasions. Mr. Tait encouraged Mr. Barger to travel to Alaska to provide guidance to that Hells Angels chapter about retaliation. During this time, Mr. Tait was flying all over the country at government expense to meet with various members of the Hells Angels.

On September 18, 1987, Kenny Yates, the president of the Cleveland chapter of the Hells Angels, was shot in Joliet, Illinois, allegedly by Outlaws. Shortly thereafter, Mr. Tait told the appellant that he had been to Chicago and Milwaukee, and that Mr. Tait would need an alibi if he was going to do something in retaliation. Mr. Barger said that "would be no problem."

On October 18, 1987, Mr. Tait told the appellant about a fictional plan he had to blow up the Outlaws' clubhouse in Chicago. They also discussed a potential alibi plan. Mr. Tait showed Mr. Barger some photos of the clubhouse, indicated where he would allegedly place the bombs and explained that the potential explosion would probably kill five or six people. The appellant replied: "That'll be really nice after that Joliet thing." Later in the conversation, Mr. Barger discussed his role in providing an alibi for Mr. Tait, including taking the hotel key and writing down the license plate number of Mr. Tait's rental car and other information. Mr. Barger also told Mr. Tait to call him one way or the other after the alleged bombing.

During October 20-23, 1987, Mr. O'Farrell stayed periodically in Mr. Tait's hotel room and drove Mr. Tait's rental car. On October 23, Mr. Tait called the hotel room and told Mr. O'Farrell to return the car, and that something had taken place. Mr. O'Farrell told Mr. Tait that he was "covered." When Mr. Tait said everything went well, Mr. O'Farrell expressed pleasure and said he would relay the message.

On November 9, 1987, Mr. Tait called the appellant and reported that the mission was accomplished. Mr. Barger responded, "All right." The next day, federal officers searched the appellant's residence, finding two EPIC manuals and a homemade bomb. At Mr. O'Farrell's residence federal officers found a Hyatt hotel room key and a handwritten note (evaluated at trial by a handwriting expert to be Mr. Barger's writing) listing Mr. Tait's hotel room number and rental car license plate number.

The appellant was one of twenty-one defendants originally indicted on December 15, 1987. The Superseding Indictment was returned on June 20, 1988. After a three-month trial, the jury found the appellant guilty of conspiracy and conversion (a misdemeanor) and Mr. O'Farrell guilty of conspiracy. The appellant was sentenced according to the federal sentencing guidelines and the Sentencing Reform Act of 1984. This appeal followed, raising numerous issues ¹ that will be addressed separately.

II. Outrageous Government Conduct

The first issue on appeal is whether the United States' investigative conduct was so outrageous as to deprive the appellant of his Fifth Amendment right to due process. Mr. Barger claims that the government's conduct so offended Fifth Amendment notions of fairness that his convictions should be reversed. The government insists that its conduct was not outrageous, but was commensurate with the risk of retaliation presented by the Hells Angels. The district court did not find that the government's conduct was so outrageous as to deny the appellant his right to due process.

Fundamental fairness is a core component of the Due Process Clause of the Fifth Amendment. United States v. Brown, 635 F.2d 1207, 1212 (6th Cir.1980). A plurality of the United States Supreme Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), indicated that some police conduct might be so egregious as to violate the accused's due process rights. In fact, Justice Powell noted that "[p]olice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction." Id., 425 U.S. at 495, n. 7, 96 S.Ct. at 1653, n. 7, 48 L.Ed.2d at 122, n. 7.

This court has said that the challenged government conduct must violate fundamental fairness and be "shocking to the universal sense of justice." Brown, 635 F.2d at 1212 (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373 (1973)). As such, this circuit has been reluctant to grant the sanctions that the appellant seeks, since "to do so would greatly intrude into the law enforcement functions of the executive branches of federal and state governments." United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983); see also United States v. Bowling, 666 F.2d 1052 (6th Cir.1981), cert. denied, 455 U.S. 960, 102 S.Ct. 1475, 71 L.Ed.2d 680 (1982); United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978).

The Sixth Circuit has articulated four factors for determining if governmental conduct is outrageous: (1) the need for the police conduct as shown by the type of criminal activity involved, (2) the impetus for the scheme or whether the criminal enterprise preexisted the police involvement, (3) the control the government exerted over the criminal enterprise, and (4) the impact of the police activity on the commission of the crime. United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); Norton, 700 F.2d at 1075; Brown, 635 F.2d at 1212-13. Since these are factors for consideration, not mandatory prongs in a test, every one need not be shown.

Consideration of the need for the police conduct...