U.S. v. Belzer
| Decision Date | 07 January 1985 |
| Docket Number | Nos. 83-2130,83-2146 and 83-2175,s. 83-2130 |
| Citation | 743 F.2d 1213 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John A. BELZER, Jr., John M. Evans and Richard Clements, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John C. Hamilton, Parker, Brunner & Hamilton, Charles W. Lahey, South Bend, Ind., Kelly Leeman, Kelly Leeman & Assoc., Logansport, Ind., for defendants-appellants.
Evan M. Spangler, Asst. U.S. Atty., R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., for plaintiff-appellee.
Before POSNER and FLAUM, Circuit Judges, and GORDON, Senior District Judge. *
This is an appeal following a jury trial in which the defendants were convicted of violating federal counterfeiting laws. The defendants' main argument on this appeal is that the government's undercover operation leading to their arrests was so outrageous as to violate fundamental principles of due process. We disagree, and we affirm the convictions.
During the summer of 1982, James Farthing traveled from Indiana to Florida to purchase counterfeit currency from the defendants John Evans and John Belzer. He did not make the purchase, however, because the quality of the bills was poor. Later that summer, Farthing, Evans, and Belzer decided to make counterfeit currency together. They bought a printing press from an Indiana company, as well as an arc light plate burner, a vacuum table, a platemaker, paper, and various printing supplies. Shortly thereafter, they determined that they needed $5,000 more to finance their counterfeiting operation, and began to search for someone to provide them with this amount.
At the same time, the defendant Richard "Pete" Clements was looking for a source of counterfeit currency. Through mutual acquaintances, it was arranged for Clements to provide Farthing, Evans, and Belzer with $5,000. Clements supplied the money, requesting that in return he get as much counterfeit currency as he could. 1
Evans, Belzer and Farthing then began to attempt to produce counterfeit currency in a garage in Indiana. However, they had difficulty operating the printing press and were unable to produce bills of high quality. After several weeks they abandoned the project. At this point, sometime in November 1982, Evans and Belzer returned to Florida, and Clements had the equipment hauled away and stored in a trailer.
In early December 1982, Clements contacted Farthing about the possibility of renewing the counterfeiting effort. During December and January, the two had several more discussions about this subject. During these discussions, Clements expressed an interest in having Belzer and Evans return to Indiana to resume the counterfeiting.
In late January 1983, Farthing was contacted by United States Secret Service Special Agent Lawrence D. Haas Jr. The Secret Service had received a tip from a confidential informant several months earlier, informing it that Farthing was involved in a counterfeiting operation. In December 1982, the Secret Service had learned that Farthing had been arrested on drug charges in Indiana. Thus, in late January 1983, Haas and Farthing discussed the possibility of Farthing assisting the Secret Service in an undercover investigation of Belzer, Evans, and Clements. Farthing agreed to assist the Secret Service, and in return Haas promised to make Farthing's cooperation known to the Indiana authorities involved in Farthing's drug prosecution. Haas supplied Farthing with equipment for tape recording phone conversations, and requested that he contact Clements, Belzer, and Evans about resuming their counterfeiting operation.
On February 1, 1983, Farthing made the first of many tape recorded phone calls to the defendants. In a conversation with Clements, he suggested that they plan another attempt at counterfeiting, and Clements agreed. The two men then began to discuss the details of the operation. At this time, Clements indicated that he would be willing to travel to Florida to pick up Belzer and Evans and bring them back to Indiana.
On February 2, Evans phoned Farthing, returning a call Farthing had made to him earlier. They discussed the counterfeiting operation. Farthing told Evans that they would be purchasing additional equipment and thus would be able to make counterfeit bills of better quality than those they had made previously. Evans then indicated that he could make counterfeit money, and that he would be willing to try again. During the next few days, Evans and Farthing had several more phone conversations in which they discussed counterfeiting. During one of these discussions, Evans stated that he and Belzer in the past had made counterfeit currency that was not high quality, but that had "passed." Tr. at 571.
During several other phone conversations with Farthing, Evans showed some resistance to traveling to Indiana. He stated that he and Belzer would prefer to run the counterfeiting operation in Florida. At several points, Evans indicated that they might withdraw from the scheme altogether. Farthing also spoke with Belzer, who also stated that he did not want to leave Florida. Ultimately, however, Farthing was able to persuade Evans and Belzer to travel to Indiana. In so doing, he promised them that they would receive $500 each up front, that all the money to finance the operation would be supplied by Clements, and that Clements would travel to Florida and drive them back to Indiana.
On February 10, Clements met Belzer and Evans in Florida and the three men set out for Indiana. While they were traveling, the Secret Service rented a graphic arts camera and brought it to a slaughterhouse located on a farm that was owned by Clements's brother, which is where the counterfeiting operation was to take place. This camera is used to make photographic negatives which are then used to make offset printing plates, and it is available commercially. The other counterfeiting equipment had already been set up in the slaughterhouse.
Clements, Evans, and Belzer arrived at the farm on February 11, and the counterfeiting operation began the following day. Throughout the next week, Belzer and Evans worked on producing the counterfeit currency, with Belzer primarily responsible for making the printing plates and Evans primarily responsible for operating the printing press. Farthing was not actively involved in the day-to-day operation, though he did visit the slaughterhouse nearly every day. In addition, Farthing instructed Evans and Belzer on operating the graphic arts camera, and he supplied them with some light sensitive tape used in platemaking.
During this time, Farthing was supplying the Secret Service with daily status reports on the counterfeiting operation. On February 14, the Secret Service sought and received a search warrant for the slaughterhouse. On February 16, before the warrant was executed, Farthing purchased additional printing supplies that had been requested by Evans and Belzer, and delivered them to the defendants. On February 18, pursuant to the warrant issued several days earlier, the Secret Service entered the slaughterhouse and arrested the defendants.
The defendants were charged with five counts of violating federal counterfeiting laws, 18 U.S.C. Secs. 471, 474 (1982), and with conspiracy to violate federal law, 18 U.S.C. Sec. 371 (1982). The case proceeded to a trial before a jury on April 18, 1983. The defendants' primary defense was that they had been entrapped or that they had been denied due process of law because of governmental misconduct. The jury returned guilty verdicts against Belzer and Evans on all five counts, and against Clements on three of the counts, acquitting him on the other two. The defendants' post-trial motions were denied, and each was sentenced to prison, Evans for five years and Belzer and Clements for three. This appeal followed.
The defendants have not argued entrapment on this appeal, conceding that there was sufficient evidence of their predisposition to counterfeit to support the jury's verdict. Thus, their primary argument is that the government undercover operation leading to their arrests violated their rights to due process of law and that therefore their convictions should be vacated. In addition, they contend that the government's four-day delay in executing its search warrant violated their constitutional rights, and that this is another reason that their convictions should be vacated. 2 As an alternative to their contention that their rights were violated, the defendants argue that the government's conduct in this case compels us to vacate the defendants' convictions in the exercise of our supervisory powers over the administration of criminal justice.
In United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973), the Supreme Court stated that "we may some day be presented with a situation in which the conduct of the law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Several years later, in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), five justices of the Supreme Court reaffirmed the principle that criminal defendants may present a defense based on outrageous governmental misconduct, regardless of the defendant's predisposition to commit the crime charged. This circuit also has recognized the existence of such a defense. See, e.g., United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983).
The due process defense, however, has been invoked successfully only on a few occasions. As this court has noted:
[A]n examination of the post-Hampton cases decided by the courts of appeals indicates that due process grants wide leeway to law...
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