U.S. v. Emmert

• Decision Date: 02 October 1987
• Docket Number: Nos. 85-5231,85-5232,s. 85-5231
• Citation: 829 F.2d 805
• Parties: 23 Fed. R. Evid. Serv. 1097 UNITED STATES of America, Plaintiff/Appellee, v. Walter Douglas EMMERT, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Richard Gail ARRIAGA, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 805

829 F.2d 805

23 Fed. R. Evid. Serv. 1097

UNITED STATES of America, Plaintiff/Appellee, v. Walter Douglas EMMERT, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Richard Gail ARRIAGA, Defendant/Appellant.

Nos. 85-5231, 85-5232.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1986.

Decided Oct. 2, 1987.

Michael J. McCabe, San Diego, Cal., for defendant/appellant Emmert.

Jonathan B. Jordan, San Diego, Cal., for defendant/appellant Arriaga.

Elizabeth A. Hartwig, San Diego, Cal., for plaintiff/appellee.

Appeal from the United States District Court for the Southern District of California.

Before ALARCON, BRUNETTI and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

Walter Douglas Emmert and Richard Gail Arriaga appeal their convictions arising out of a cocaine transaction which involved government informants and agents. Emmert was convicted on two counts of possession of cocaine with intent to distribute (21 U.S.C. Sec. 841(a)(1)), one count of conspiracy (21 U.S.C. Secs. 846 and 841(a)(1)), and four counts of using a telephone to further a narcotics transaction (21 U.S.C. Sec. 843(b)). Arriaga was convicted of possession and conspiracy. Both defendants claimed that the trial court erroneously excluded certain testimony of a co-conspirator as hearsay or as irrelevant to their entrapment defense. They also argue that the government's conduct in the investigation of this case constitutes a violation of their due process rights. We reject these claims and affirm the convictions.

BACKGROUND

Walter Douglas ("Doug") Emmert was 28 years old, an undergraduate at the University of California, San Diego, pursuing a double major in biology and psychology. He became involved in the drug transaction after his friend and roommate Thomas Powell told him about a $200,000 finder's fee offered by Martin Mosteller, a confidential government informant, for locating a substantial supply of cocaine. Mosteller told Powell that he had a buyer for the Mosteller first approached Powell to find a cocaine supplier because he believed Powell attended a party at which cocaine was used. After several inquiries by Mosteller about a supplier of commercial quantities of cocaine, Powell introduced Emmert to Mosteller as a person who might know of someone that could help find a supplier. At this meeting, Mosteller offered Powell and Emmert a $200,000 "finder's fee" for introducing him to someone who could sell him forty kilograms of cocaine. Powell later informed Mosteller that he and Emmert were incapable of putting together the proposed drug transaction.

cocaine in the Detroit area. This "buyer" was Narcotics Task Force undercover agent Joseph Vasquez.

Mosteller arranged a July 24, 1984 meeting between Vasquez and Powell. Powell demanded a $200,000 finder's fee for putting together the transaction. He further demanded that the cash be placed in a safe deposit box which could only be opened with Powell's signature. This was to constitute a "life insurance policy" for Powell and Emmert.

The next day, Powell and Mosteller again met with Vasquez, who was introduced to Emmert. Emmert gave Vasquez a sample of cocaine, quoted a price, and discussed other details of a proposed forty kilogram transaction.

During the first half of August, 1984, Powell and Emmert met with Mosteller, Vasquez, Sherry Ackermann (another undercover agent acting as Vasquez's girlfriend), and Powell's purported suppliers, Dave Emery and Mario Cioe. During these meetings, the "buyers" displayed $100,000 in "flash" money and Emmert, Emery, and Cioe provided additional cocaine samples, stating that it was representative of forty kilograms they had for sale. During these meetings, Powell and Emmert again requested that the $200,000 finder's fee be placed in a safe deposit box accessible only with Powell's signature. The next day, Powell met with Mosteller and Ackermann at a San Diego bank to deposit the money in a safe deposit box. Because both Mosteller and Ackermann signed their names on the account, the box could be opened without Powell's signature, thwarting his "life insurance" plan.

The parties failed to complete the transaction. On August 15, 1984, Emmert and Emery met with Vasquez and Ackermann. Emery wanted $40,000 up front and aired his concern that Vasquez might be a policeman. The agents then expressed anger that they had money ready to buy the cocaine, but that the sellers were unable to consummate the sale. Vasquez testified that he told Emery "Maybe we'll do the deal in an airplane and if something goes wrong, we'd have one parachute and guess who'd come down without one." Ackermann told Emmert that she had three words for Powell, "R.I.P." The next day, Vasquez told Emmert on the telephone that Vasquez was losing credibility with his associates because of his inability to buy the drugs as planned and that he was returning to Detroit.

Emmert and Powell had no more contact with Vasquez or other agents until September 20, 1984. During this hiatus, however, Mosteller spoke with Powell and tried to put the cocaine deal back together. On September 6, Mosteller threatened Powell that he and Emmert had one week to make the sale they previously discussed "or else." Mosteller did not make good on his threat and negotiations between the parties continued.

Finally, the parties arranged and executed the sale. On October 23 Vasquez met Emmert and Mario Cioe in a parking lot. Another undercover agent produced money and Cioe counted it. One of Cioe's men, Hyatt, then delivered an envelope of cocaine to Vasquez. Appellant Arriaga, who had not previously been involved in negotiations or other meetings between the parties, delivered more cocaine. The agents immediately arrested Emmert and Cioe, and captured Arriaga after a brief chase. Police arrested Powell several days later.

After his arrest, Emmert implicated Powell and said that he thought Vasquez was with the "mob." Arriaga, whose name had never come up in the negotiations, explained that he had been paid $100 to deliver the cocaine.

At the trial, the defense presented an entrapment theory, and characterized the government agents as intimidating individuals who represented themselves as members of a Detroit Mafia crime family. Powell, who pled guilty to one count of using the telephone in a narcotics transaction, testified that he and Emmert were afraid after meeting Vasquez and felt compelled to complete the sale. Emmert gave similar testimony. Emmert's brother and cousin testified that Emmert told them that he was being forced into a drug deal by the Mafia, and was very afraid. The jury was instructed on entrapment and rejected the defense.

Emmert contends on appeal that the trial court erred in excluding Powell's testimony that, during the hiatus between the August 16 meeting and Vasquez's September 20 telephone call to Emmert, Mosteller threatened Powell to proceed with the transaction. The district court excluded the testimony as tending to raise a "derivative entrapment" issue because Mosteller did not communicate the threats directly to Emmert. Emmert contends that, for purposes of entrapment, Powell was a mere conduit for the transmission of Mosteller's threats to Emmert. (Appellant Arriaga essentially adopted Emmert's appellate issues and arguments without explaining how the exclusion of this testimony affects his conviction.) Appellants Emmert and Arriaga also maintain that the government's conduct in the investigation of this case is so outrageous so as to deprive them of their due process rights. We reject these arguments and affirm.

EXCLUSION OF POWELL'S TESTIMONY

A. Threats from Informant

The defense sought to introduce Powell's testimony recounting threats made to Powell in Emmert's absence. The district court excluded the testimony as tending to raise the "derivative entrapment" defense, which has been rejected in this circuit. See e.g. United States v. North, 746 F.2d 627, 630 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985). Appellants contend on appeal that the exclusion of this evidence related to their entrapment defense deprives them of due process. ¹ We reverse evidentiary rulings for an abuse of discretion, United States v. McClintock, 748 F.2d 1278, 1291 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985), only if that non-constitutional error would have been more likely than not to affect the verdict. United States v. Owens, 789 F.2d 750, 757 (9th Cir.1986); United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir.1984).

The entrapment defense is only available to defendants who were directly induced by government agents. United States v. North, 746 F.2d 627 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985). The North rule clearly precludes appellant Arriaga from complaining of the exclusion of Powell's testimony since the government agents had no contact with him or even knowledge of him until he delivered the cocaine. Appellant Emmert insists that Powell was merely a "conduit" for the agent's efforts to entrap him because Mosteller made representations, inducements and threats to Powell which Mosteller intended Powell to pass on to Emmert so that Emmert would complete the narcotics transaction. Inducement by a private party is not entrapment. United States v. Cruz, 783 F.2d 1470 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 2902, 90 L.Ed.2d Appellants contend that this case is different than the "derivative entrapment" cases because the government agents specifically intended that Powell communicate threats to Emmert, making Powell an "unwitting agent" of the government. We have previously stated that an approach to a defendant by a private citizen before he was cooperating with the government, did not constitute governmental solicitation or inducement for purposes of the entrapment defense. United States v. Brandon, 633...