U.S. v. Biswell, 81-2341

• Decision Date: 22 February 1983
• Docket Number: No. 81-2341,81-2341
• Citation: 700 F.2d 1310
• Parties: 12 Fed. R. Evid. Serv. 1191 UNITED STATES of America, Plaintiff-Appellee, v. Loran Anthony BISWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1310

700 F.2d 1310

12 Fed. R. Evid. Serv. 1191

UNITED STATES of America, Plaintiff-Appellee, v. Loran Anthony BISWELL, Defendant-Appellant.

No. 81-2341.

United States Court of Appeals Tenth Circuit.

Feb. 22, 1983.

William L. Lutz, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

David L. Norvell, Albuquerque, N.M., for defendant-appellant.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Biswell appeals a jury conviction on Count I of a two count indictment charging him with two offenses of unauthorized use, acquisition and possession of food stamps of a value of $100 or more, respectively on or about June 17 and July 23, 1981, in violation of 7 U.S.C. Sec. 2024(b) (Supp.1981). The jury acquitted Biswell on Count II. This appeal presents only two issues. First, Biswell argues that outrageous governmental conduct during the investigation violated due process principles and bars his prosecution. Second, Biswell contends the district court erroneously admitted evidence of other alleged crimes, wrongs, or acts by him in violation of Rules 403, 404(b) and 609(a)(1), Federal Rules of Evidence. We are not persuaded by the first proposition but are convinced that the challenged evidence was erroneously admitted and prejudicial and that a new trial must be afforded the defendant.

I

The issues require some review of the evidence, which we will now summarize in part.

Special Agent Russell Barrett, of the United States Department of Agriculture (USDA), and Agent Louis Lara, of the Roswell, New Mexico police department, "targeted" several businessmen in Hobbs, New Mexico during the course of an undercover food stamp investigation in the summer of 1981. Biswell, who owns a pawnshop and used car lot in Hobbs, became a target of the investigation. On June 17, 1981, the two agents visited Biswell's pawnshop. According to the agents' testimony, Biswell sold the agents a car in exchange for $200 cash and $850 worth of food stamps. This evidence premised the charge in Count I of the indictment. A similar transaction was said to have occurred on July 23, 1981. It was charged in Count II on which defendant was acquitted.

At the outset of the trial Biswell moved to dismiss the indictment based on a due process defense stemming from the agents' conduct, ¹ arguing that the defense should be decided by the court before trial, outside the presence of the jury. II R. 4-5. The prosecution responded to the motion by contending, inter alia, that "the Court ought to order this matter to go to trial and if matters are raised that are directed toward the discretion of the Court with respect to the conduct of the government, then the jury should be excused, the Court could hear it and proceed from there." Id. at 7. The district court overruled Biswell's motion.

Biswell was permitted to make an offer of proof which counsel believed would show that: (1) federal agents compiled the target list after consultations with local law enforcement agencies; (2) targeting of a particular individual required approval from USDA supervisors; (3) Hobbs police officials named Biswell as a target without any known prior involvement in food stamp violations; (4) the USDA did not consider or approve Biswell's targeted status; (5) federal agents lacked a basis for Biswell's targeting, and; (6) "the agents involved in this transaction ... took it upon themselves, without any supervisory approval or authority, to simply walk the streets of Hobbs and pick and choose [targets] at the front door of these particular businesses...." Id. at 8-10. These actions, Biswell argued were outrageous and amounted to a deprivation of due process.

In the trial before the jury the prosecution's first witness, Agent Barrett, testified about the purchase of the two automobiles with cash and food stamps. The first sale occurred, Barrett stated, on June 17, 1981, after inspection of the vehicle when he and Agent Lara told Biswell they would like the car but that they did not have the purchase price. Barrett said he told Biswell that they had only $200 cash and $1,700 worth of food stamps.

According to Barrett, Biswell replied that one must be careful in handling food stamps. Id. at 56. Barrett said that after a couple of seconds of reflection Biswell offered to sell the car for the $200 cash and $850 in food stamps at their face value. Barrett then related that the transaction was consummated by Biswell counting the food stamps and signing the automobile's title in the name of "L.M. Reyna" as seller. Biswell instructed the agents to have the title notarized nearby, Barrett said. Other prosecution testimony indicated that the negotiating process consumed six minutes. Id. at 159 (testimony of Officer Bogle), 180 (testimony of Officer Scott).

The prosecution's testimony concerning the transaction alleged to have occurred on or about July 23 was similar to its evidence concerning Count I. Barrett said that Biswell agreed to the sale of a vehicle for $160 cash and $600 in food stamps. Barrett also testified that, on this occasion, Biswell asked if the food stamps, even though "hot," were like the last ones in that Biswell could get rid of them without problems. Id. at 73.

The evidence produced by the defense tended to show that Biswell refused to take any food stamps and accepted only cash for the transaction charged in Count I, as Olga Fedrick and Helen Biswell testified. Ms. Fedrick said that defendant kept telling the agents he didn't "mess with food stamps." III R. 249. Defense witness Isa Bryant testified that the defendant rejected the stamps in emphatic terms and said he wanted his money during the June incident. II R. 221. The defense witnesses said the agents were "really persistent" in repeatedly trying to purchase the automobile with food stamps and that the agents left the food stamps on Biswell's counter after purchasing the car for cash. Ms. Fedrick testified that the agents did not give defendant any stamps in the July visit. III R. at 252-53.

A notary testified that Biswell said he had authorization to sign for L.M. Reyna as seller and that Biswell had appeared with the food stamps at the notary's office just after the agents left and gave them to the notary to keep in case the agents returned. The food stamps left by the agents were kept in the notary's file cabinet until the trial and were produced by the notary at trial. Agent Barrett admitted that these were the same food stamps used by the agents during the June 17 transaction and that none of the stamps used in the Biswell investigation had been redeemed for cash or credit.

We will cite other evidence as it becomes relevant in treating the issues before us.

II

Biswell contends that "government agents engaged in such outrageous and egregious conduct as to deny the defendant the fundamental fairness required by the due process of law guaranteed him under the Fifth Amendment of the United States Constitution." Appellant's Brief in Chief at 10. Biswell raised this argument at appropriate times before, during and after the presentation of evidence, and the district court rejected the defense on each occasion. We hold that the court did not err in so ruling.

The Supreme Court has stated that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction...." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366. See also Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (Powell, J., concurring); id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). We have considered such a due process defense based on a claim of outrageous governmental conduct several times. E.g., United States v. Spitz, 678 F.2d 878 (10th Cir.); United States v. Simko, 662 F.2d 656 (10th Cir.), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453; United States v. Gentry, 642 F.2d 385 (10th Cir.); United States v. Szycher, 585 F.2d 443 (10th Cir.); United States v. Spivey, 508 F.2d 146 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104. In the Szycher case we held that this issue is one for the court to decide, 585 F.2d at 445, and noted that a majority of the Supreme Court continues to recognize the possibility of a bar to prosecution under due process principles in circumstances of sufficiently offensive conduct by law enforcement authorities. Id. at 447.

Here Biswell relies mainly on United States v. Twigg, 588 F.2d 373 (3d Cir.); United States v. Batres-Santolino, 521 F.Supp. 744 (N.D.Cal.); and United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.), in support of his contention that due process principles prohibit his conviction. Even considering the record in the most favorable light for him, including his offer of proof, II R. 8-10, and all the evidence such as testimony that the agents were "really persistent," we are convinced the conduct was not so outrageous as to bar this prosecution. See United States v. Monaco, 700 F.2d 577, ---- (10th Cir. 1983). ²

The cases do not persuade us that the due process defense was established. For example, in Twigg, the Third Circuit reversed all but one of defendants' convictions based on the overinvolvement of government agents in an illegal drug manufacturing operation. The federal agents, through an informant, suggested the creation of a laboratory to produce methamphetamine. The agents supplied a farmhouse for the laboratory, about 20% of the laboratory glassware, and an essential ingredient required in the manufacturing process. 588 F.2d at 375. The government's informant "was completely in charge of the entire laboratory," id. at 376, and the assistance given by defendants was minimal. Id. at 381. About five months after the...