U.S. v. Bowling, 80-3684

• Decision Date: 17 December 1981
• Docket Number: No. 80-3684,80-3684
• Citation: 666 F.2d 1052
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard O. BOWLING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1052

666 F.2d 1052

UNITED STATES of America, Plaintiff-Appellee, v. Leonard O. BOWLING, Defendant-Appellant.

No. 80-3684.

United States Court of Appeals Sixth Circuit.

Argued Oct. 15, 1981.

Decided Dec. 17, 1981.

Arnold Morelli, Cincinnati, Ohio, for defendant-appellant.

James C. Cissell, U. S. Atty., Nicholas J. Pantel, Asst. U. S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

Leonard Bowling appeals from his conviction for interstate transportation of stolen property having a value in excess of $5,000, in violation of 18 U.S.C. §§ 2 and 2314. ¹ Bowling was indicted along with Thomas C. Lawson on October 24, 1979. He allegedly had transported into Ohio over $5,000 worth of sterling silver taken during a burglary of the residence of Mr. and Mrs. Isaac Van Meter in Maysville, Kentucky. Bowling was convicted after a jury trial and sentenced to a prison term of ten years by District Judge S. Arthur Spiegal. We affirm.

I

The record contains substantial evidence from which the jury could have found the defendant guilty on all the essential elements of the crime-that Bowling and Lawson burglarized the Van Meter home on November 17, 1978, stole sterling silver with a value well over $5,000, and transported it from Kentucky to Ohio for the purpose of selling it to a "fence."

According to testimony adduced at trial, the burglars drove to Maysville, Kentucky, in defendant Bowling's car on November 17, 1978. During the daylight hours the burglars "cased" a number of houses in Maysville and selected several, among them the Van Meter home, for robbery later that night. After dark they parked Bowling's automobile near a hospital located at the bottom of a hill, below the houses to be robbed. The burglars then climbed up the hill and proceeded to break into the houses.

Using a screwdriver, they took off a door of the Van Meter home. Defendant Bowling went upstairs to watch out the front window while the other two burglars grabbed some pillowcases from a bedroom and stuffed them with valuables. Between them they took approximately 37 pounds of sterling silver. This silver was "stashed" in the woods while they robbed another house; they then returned and loaded all the stolen goods in the trunk of Bowling's automobile.

Mr. and Mrs. Van Meter were in Florida on vacation at the time of the robbery, but Mrs. Fannie Johnson, whom they employed as their maid, entered the house on the day following the burglary. She testified that the door in the kitchen had been destroyed and that in every room drawers had been forced or thrown open and their unstolen contents tossed and scattered on the floor. The silver had been taken from the kitchen and dining room, with a few stray pieces left amidst the debris on the floor. An old desk in the study and a secretary in the living room had been rifled, and the Van Meters' papers and records thrown on the floor. The upstairs also had been ransacked. Mrs. Johnson testified that the closet had been wrecked, a file cabinet jammed and dresser drawers overturned and emptied.

Mrs. Van Meter also testified at trial, positively identifying the stolen silver as her own. Testimony also established that the value of the silver was well in excess of $5,000.

After they had completed the robberies, defendant and the other burglars drove back into Ohio in defendant's car. They carried the stolen silver to Bowling's home, where, with the assistance of Bowling's wife, they weighed and inventoried it and verified that it was sterling.

They had arranged to sell the silver to a "fence" named "Dick Dalton" for $55 a pound. "Dick Dalton" was the alias of an undercover FBI special agent named Richard Dorton. On November 21, 1978, Special Agent Dorton went to Bowling's residence and paid Bowling $752 in cash for his share of the stolen sterling silver.

Bowling left Ohio for Florida in September 1979, and the indictment against him in the present case was filed on October 24, 1979. He was arrested in Florida on May 23, 1980. On his person at the time of his arrest was a Florida driver's license with his picture, issued in the name of Chester G. Hornbeck, as well as a social security card and an Ohio birth certificate bearing the same fictitious name.

II

Special Agent Dorton's role as a "fence" in this case was part of a larger FBI investigation of an interstate burglary ring based in the Cincinnati area and operating in Ohio, Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the ring.

This court on two prior occasions upheld convictions arising out of the investigative work of Dorton and Miller. See United States v. Reed, 647 F.2d 678 (6th Cir. 1981); United States v. Brown, 635 F.2d 1207 (6th Cir. 1980). In Reed, supra, we described the arrangement between Dorton and Miller:

(T)he government's prosecution of the substantive offenses proceeded on the theory that the defendants were participants in a burglary and fencing operation which centered in Middletown, Ohio. The operation was broken when a convicted Middletown burglar, one Robert Miller, agreed to cooperate with federal authorities in exchange for possible lenient treatment on a number of outstanding charges against him. FBI special agent Richard Dorton, using the name Dick Dalton and posing as a Floridian dealer in stolen property, was brought in as an undercover agent to work with Miller and infiltrate the Middletown burglary and fencing ring. 647 F.2d at 680.

In the instant case, Miller, in cooperation with the FBI, won the confidence of Bowling and Lawson and was invited to accompany them on their burglaries. He entered the Van Meter home with Bowling and Lawson and assisted in its burglary. The record contains testimony to the effect that Miller was asked by Bowling and Lawson to suggest a place to go to on their burglarizing expedition, and Miller mentioned there were "a lot of nice houses" in Maysville, Kentucky. Bowling adopted this suggestion because he had seen the houses on top of the hill in Maysville when driving to and from his job every day.

Bowling contends in his brief that Miller's behavior and the Government's use of his cooperation during the investigation of Bowling was conduct "so outrageous that due process principles bar his (Bowling's) conviction for interstate transportation of stolen property."

We hold that Bowling has not shown that the challenged Government conduct amounts to "a denial of fundamental fairness, shocking to the universal sense of justice," Betts v. Brady, 361 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960), which would then be a violation of the Due Process Clause. See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973).

Our conclusion is consistent with our previous decision, United States v. Brown, supra, involving similar alleged improper conduct of the same Government informant, Robert Miller. In that decision we said:

The facts of this case involve the government's investigation, designated by the code name HAMFAT, of an interstate burglary ring. The ring operated, with a base in the Cincinnati area, in Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the interstate burglary ring. His job was to identify the individuals involved in the burglary ring, and to identify the "fences" who purchased the property stolen by the ring. In addition, Miller was to help Richard Dorton, an undercover FBI agent posing as an out-of-state buyer of stolen property, to gain the confidence of the ring.

Miller remained on the job, reporting to the FBI daily, for almost seventeen months.

Thus, we begin our analysis with the basic proposition that the use of paid informants to infiltrate criminal enterprises is a "recognized and permissible means of investigation." Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. See also, e.g., United States v. McQuin, 612 F.2d 1193, 1195 (9th Cir.), cert. denied, 445 U.S. 954, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980) (infiltration of criminal ranks by government long recognized as permissible); United States v. Twigg, 588 F.2d 373, 380 (3rd Cir. 1978) (infiltration of criminal operations is an "accepted and necessary practice"); and United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978), and cases cited therein.

This proposition remains true even though the informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise. The informant or government agent must be allowed to further the interests of the criminal enterprise in some manner to gain the confidence of the criminal elements with which he must deal. See Russell, supra, at 432, 93 S.Ct. at 1643; McQuin, supra, 612 F.2d at 1196; United States v. Corcione, 592 F.2d 111, 114-15 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 794 (1979). 635 F.2d at 1208-09, 1212-13.

In the context of the facts of the present case, the Government did not instigate the burglary of the Van Meter home on November 17. Miller, the Government informant, did not organize the burglary trip in question or even select the date for the trip. Miller did not recruit either Bowling or Lawson to burglarize homes. His activities were consistent with the necessity of keeping his credibility established with the burglars in order to maintain his effectiveness as an informer.

Applying to the present case the factors discussed in Brown, supra, 635 F.2d at 1211-14, the Government did not initiate the criminal activity here in question. To the contrary, it merely infiltrated a preexisting criminal enterprise. Robert Miller did not direct or control the activities of the...