U.S. v. Dudden

• Decision Date: 13 September 1995
• Docket Number: 93-30390,Nos. 93-30389,s. 93-30389
• Citation: 65 F.3d 1461
• Parties: 95 Cal. Daily Op. Serv. 7234, 95 Daily Journal D.A.R. 12,341 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Lynn DUDDEN, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1461

65 F.3d 1461

95 Cal. Daily Op. Serv. 7234, 95 Daily Journal

D.A.R. 12,341

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Lynn DUDDEN, Defendant-Appellant-Cross-Appellee.

Nos. 93-30389, 93-30390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1995.

Decided Sept. 13, 1995.

Robert L. Stephens, Jr., Billings, MT, for defendant-appellant.

James E. Seykora, Assistant United States Attorney, Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: POOLE, BOOCHEVER, and WIGGINS, Circuit Judges.

BOOCHEVER, Circuit Judge:

Lynn Dudden cooperated with federal authorities in their investigation of cocaine conspiracies in California and Montana. She was later indicted and convicted for conspiracy to distribute methamphetamine on one occasion, involving the same coconspirators who had been the target of the cocaine investigation. On appeal, she claims the district court should have dismissed the indictment because it was based on immunized statements she made to the federal agents. She also cites pre-indictment delay, outrageous government conduct, the district court's failure to give proposed instructions, limitations on cross-examination, and sentencing error. The government cross-appeals the district court's downward departure at sentencing.

FACTS

In 1987, FBI Special Agent Carl Zarndt began an investigation into cocaine activities in Billings, Montana. In 1988, Agent Zarndt conducted a search of the Billings home of Raymond Jacobsen, and found an address book containing telephone numbers for appellant Lynn Dudden and her companion, Charles Hinck. The Montana investigation led to the 1988 arrest of Alton Butler, who cooperated with authorities and provided information against a number of people, including Jacobsen and Jim Fitzhugh. In addition to information about the cocaine conspiracy, in a July 1988 debriefing Butler told Zarndt that in February 1988 Butler flew to California, picked up methamphetamine from Jacobsen near San Jose, and drove it back to Jacobsen's residence in Billings.

During this time, Jacobsen and Fitzhugh also were under investigation in California for cocaine distribution. Dudden, then living in northern California, cooperated with federal authorities in the California investigation, detailing her own illegal activities related to cocaine distribution under an agreement that she would not be prosecuted based on any information she provided in her cooperation. FBI Special Agent Henry Brett was among the agents who spoke with Dudden. Fitzhugh was arrested in California in December of 1988 and tried for cocaine distribution. Fitzhugh's California trial resulted in a hung jury.

Dudden moved to Montana in late 1989. Agent Brett contacted her in March 1990 in connection with the investigation of Fitzhugh's cocaine activities in Montana, again assuring her that her statements would not subject her to prosecution. Agent Brett spoke with Dudden several times, summarizing their conversations in two FBI Form 302 interview reports. Dudden told Brett that she had transported cocaine to Fitzhugh twice.

Jacobsen and Fitzhugh were charged with conspiracy to distribute cocaine in Montana, based in part on Dudden's information. A superseding indictment dated April 20, 1990, included as an overt act the February 1988 delivery of methamphetamine that Butler had described in his 1988 debriefing. The indictment alleged that the profits were to be used to further the cocaine conspiracy.

Agent Zarndt contacted Dudden in July 1990. Although Agent Brett had told Agent Zarndt about Dudden, Agent Zarndt was unaware of any immunity agreement between Agent Brett and Dudden. Dudden told Agent Zarndt about Fitzhugh's cocaine involvement. Although she said she knew Jacobsen, she stated that she did not have first-hand information about Jacobsen's drug dealings. She added that she thought he was involved with methamphetamine.

In August 1990, Dudden went to the United States Attorney's office in Billings to be debriefed. Assistant United States Attorney In March 1992, DEA Agent Gale Williams began an investigation of drug activity at Corporate Air, the employer of Dudden's companion, Charles Hinck. One of Agent William's sources mentioned Hinck. Agent Williams then conferred with AUSA Seykora and with Agent Zarndt, who steered him to FBI debriefings, including Butler's 1988 debriefing and Jacobsen's debriefing following his guilty plea in August 1990, which, like Butler's debriefing, detailed the February 1988 methamphetamine deal. Unlike Butler's statement, Jacobsen's debriefing named Hinck and Dudden.

("AUSA") James Seykora had drafted a letter offering Dudden immunity for her testimony at Fitzhugh's and Jacobsen's upcoming trial for conspiracy to distribute cocaine in Montana. The letter was shown to Dudden at the meeting, but not given to her. Agent Zarndt, who was present at that interview, did not recall discussing the immunity letter with AUSA Seykora, but stated that it would be standard procedure to have discussed any immunity agreement with the prosecuting attorney. Dudden was never called to testify, because before trial Fitzhugh and Jacobsen pled guilty.

Agent Williams interviewed Jacobsen in December 1992. Jacobsen told Williams that Dudden, who worked at the hotel where Jacobsen stayed near San Jose, had arranged for Jacobsen to meet Hinck and obtain the methamphetamine in February 1988. Agent Williams then conducted his own investigation, collecting telephone records, rental car information, tax returns, employment files, and utility bills. Some of the car rental records came from Agent Zarndt's 1990 investigation in which Dudden had cooperated. The records showed, among other things, calls from Jacobsen to Hinck's and Dudden's 1988 residence in Los Gatos, California, near San Jose.

In the process of his investigation, Agent Williams also reviewed Agents Brett's and Zarndt's Form 302s reporting their conversations with Dudden. Agent Williams testified that Dudden took on the stature of a coconspirator in his investigation based not on her Form 302s but on Jacobsen's 1990 debriefings. The only methamphetamine-related information in any of Dudden's Form 302s was her statement in July 1990 that she had the impression that Raymond Jacobsen was involved with methamphetamine. Agent Williams testified that he was not aware of any grant of immunity to Dudden until after the grand jury session.

Agent Williams participated in Dudden's and Hinck's arrest in February 1993. During the arrest, Dudden and Hinck were given a letter to the DEA from AUSA Seykora detailing the sentences they would face and the potential for reduction for substantial assistance in the DEA investigation of Corporate Air.

Dudden and Hinck did not cooperate in the Corporate Air investigation. They pled not guilty to an indictment charging them with one count of distribution of methamphetamine and one count of conspiracy to distribute methamphetamine. Jacobsen, Butler, and Fitzhugh were named as unindicted coconspirators. The indictment alleged that Jacobsen flew to California in February 1988 and met with Dudden near San Jose, where Dudden introduced Jacobsen to Hinck for the purpose of receiving two pounds of methamphetamine to be transported by Butler to Montana.

After a jury trial, Hinck was acquitted. Dudden was found guilty on the conspiracy count, and acquitted of the charge of distribution. She was sentenced to 37 months imprisonment.

Dudden appeals her conviction and her sentence. The government cross-appeals from the district court's decision to depart downward at sentencing.

DISCUSSION

I. Pre-indictment delay

Dudden was not indicted for the February 1988 methamphetamine transaction until January 22, 1993, just barely within the five-year statute of limitations. Dudden filed a pretrial motion to dismiss for pre-indictment delay, claiming that the government could have filed charges against her as early as July 1988, when Butler described the 1988 drug deal, or at least by the summer of 1990 This court reviews for an abuse of discretion the district court's decision not to dismiss an indictment for impermissible delay. United States v. Turner, 926 F.2d 883, 888 (9th Cir.), cert. denied, 502 U.S. 830, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991).

when Jacobsen's debriefing identified Dudden as involved in the methamphetamine transaction. The district judge denied Dudden's motion, finding she had not shown prejudice or intentional delay by the prosecution.

In limited circumstances, due process requires the dismissal of an indictment brought before the end of the limitations period. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir.1992). Preindictment delay violates due process only if the defendant proves actual, nonspeculative prejudice from the delay, and if the length of the delay, when balanced against the reason for it, offends fundamental conceptions of justice. Id.

To demonstrate the actual prejudice required before the second part of the test is triggered, a defendant must show more than the mere loss of testimony, which generally is protected against by the statute of limitations. The defendant must show "by definite and non-speculative evidence how the loss of a witness or evidence is prejudicial to the defendant's case." Id. Findings on the issue of prejudice are reviewed under the clearly erroneous standard, keeping in mind the defendant's heavy burden. Id.

On appeal, Dudden cites lost bank, telephone, and employment records, and hotel registration receipts, "all of which could have been exculpatory and beneficial to her in the presentation of her defense at time of trial" (emphasis added). She does not show how these or the other records would have been exculpatory. Dudden claims the bank records could have shown that she made no unusually large cash deposits during the time of the drug...