U.S. v. Green, 91-50325

• Decision Date: 24 April 1992
• Docket Number: No. 91-50325,91-50325
• Citation: 962 F.2d 938
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Anthony GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 938

962 F.2d 938

UNITED STATES of America, Plaintiff-Appellee, v. John Anthony GREEN, Defendant-Appellant.

No. 91-50325.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1992.

Decided April 24, 1992.

Lisa J. Damiani, San Diego, Cal., for defendant-appellant.

Kimberly D. Allan, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before: WALLACE, Chief Judge, BROWNING and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

John Anthony Green appeals his conviction of knowingly making photographs of United States currency in violation of 18 U.S.C. § 474 (1988). He contends: (1) the indictment failed to allege essential elements of the crime; (2) the government wrongly interfered with defense counsel's pretrial investigation; (3) the trial court failed to suppress unlawfully seized evidence; (4) the court failed to properly instruct the jury on the elements of the crime; and (5) the trial court erroneously gave a supplemental instruction after learning the jury's numerical division. He also challenges his sentence, contending that the trial court erred by increasing his base offense level for the use of a "special skill" in committing the crime. We affirm the conviction, vacate the sentence and remand for resentencing.

FACTS AND PROCEEDINGS BELOW

The investigation leading to Green's arrest and conviction commenced on November 29, 1989 when Secret Service agents responded to a call from an employee at Zellerbach Paper Company in Los Angeles. The employee reported that an individual ordered a special type of paper frequently used by counterfeiters, had no account with the company, seemed unfamiliar with the paper business, and wanted to pay cash that afternoon for a minimum order. Secret Service agents checked the individual's business name and phone number and concluded that no such business existed. The agents decided to survey the purchase.

Green arrived at Zellerbach in a converted school bus, purchased the paper with cash, and loaded the paper on the bus. Agents testified that they followed Green's bus and watched him stop a short distance away, turn off all lights except the interior and examine what appeared to be a $5 reserve note with a magnifying glass. When Green continued driving, he stopped frequently, drove in circles, finally entered the freeway and drove to San Diego.

The next day agents followed Green to the Midway Continuing Education Center in San Diego. Agents tracked him into the school and determined that he was enrolled there in graphic design classes. Agents interviewed one of Green's instructors who stated that Green had inquired about high quality paper for stationery. The instructor had told Green about Zellerbach's special premium paper and also had answered Green's questions about making "clean cuts" on multiple pieces of paper and whether different paper had "signatures" or identifying marks.

With the above information, agents secured a federal warrant to search Green's bus. Before the agents could execute the warrant, Green left the bus carrying a file folder. Agents stopped him and seized the folder, which contained numerous photographic negatives of $100 reserve notes. Green was arrested, advised of his rights and searched. Envelopes in his pockets contained negatives of $20 and $100 notes. The original $100 note was found in Green's wallet. The agents searched the van and found the paper purchased from Zellerbach. On the way to Secret Service offices, Green admitted that he purchased the Zellerbach paper with a fictitious name and company, and that he had produced the negatives. Green later consented to a search of his school locker which contained books and brochures on printing.

Green was charged with one count of violating 18 U.S.C. § 474. Pretrial motions to dismiss the indictment and to suppress the statements and evidence were denied. After a jury trial, the court sentenced Green under the Sentencing Guidelines to a term of six months' imprisonment.

DISCUSSION

I. Sufficiency of the Indictment

Green was charged under paragraph 6 of section 474, providing that:

Whoever prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such obligation or other security, or any part thereof, ... [s]hall be fined ... or imprisoned....

18 U.S.C. § 474. He contends that the indictment is insufficient because it fails to allege exceptions to criminal liability created by 18 U.S.C. § 504 (1988). We disagree. "The well-established rule is that a defendant who relies upon an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has the burden of establishing and showing that he comes within the exception." United States v. Guess, 629 F.2d 573, 576 (9th Cir.1980) (internal quotation omitted). The government has neither the obligation to allege an exception in the indictment nor the burden of going forward on the issue. United States v. Hester, 719 F.2d 1041, 1043 (9th Cir.1983).

II. Interference with Defense Investigation

Two months prior to Green's trial, Secret Service agents were notified by an employee of Unisource Paper Corporation that Unisource had received an inquiry concerning the type of paper involved in this case. Agents identified the return phone number given as the law office of Lisa J. Damiani, Green's attorney. Agents directed the informant at Unisource to return the call so that the conversation could be recorded. After several attempts, the employee reached Damiani's law clerk, who inquired about the price, specifications and quality of the type of paper that Green purchased. The clerk explained that she worked for an attorney who had a client accused of counterfeiting money and that they were seeking to determine the differences between the type of paper the client had purchased and the type used to produce currency.

The agent who taped the conversation testified that he concluded that the law clerk was not involved in counterfeiting money but rather she was conducting an investigation on Green's behalf. Accordingly, he closed his investigation. The tape of the conversation was nevertheless turned over to the prosecutor in this case. The prosecutor subsequently notified Green's attorney of the incident and produced the Secret Service's report and a copy of the recorded call.

Green contends that pursuant to the Sixth Amendment, the government's intrusion mandates dismissal of the indictment. We have repeatedly held in similar circumstances that the Sixth Amendment is violated only when the government's action "substantially prejudices the defendant." Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1474, 89 L.Ed.2d 729 (1986); see also United States v. Hernandez, 937 F.2d 1490, 1493 (9th Cir.1991) (government's invasion of attorney-client privilege by itself does not violate Sixth Amendment; defendant must have been prejudiced); United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985) (indictment may not be dismissed for government interference with the attorney-client relationship absent prejudice to defendant). Green does not expressly argue that he was prejudiced. Although a defense strategy was revealed to the prosecutor, there is no indication that Green's ability to defend himself was impaired or that the government was able to utilize the information in any way. See United States v. Irwin, 612 F.2d 1182, 1189 (9th Cir.1980) (government's discovery of defense strategies affected neither the prosecution nor the defense of the case). Accordingly we reject Green's claim of a Sixth Amendment violation.

Green also argues that the government's actions violated his Fifth Amendment due process rights. To violate due process, governmental conduct must be "so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir.1991) (internal quotations That is not the case here, and we agree with the district court that dismissal of the indictment was not required. The Secret Service responded to an informant's call that an individual inquired about paper frequently used by counterfeiters. Once the agent determined that the caller was not seeking to purchase paper but was gathering information for a client, the investigation ceased. Although the agent could have used better discretion in deciding to record the clerk's conversation, "less than exemplary official performance" will not justify "the extreme measure of dismissing the indictment[ ]." Barrera-Moreno, 951 F.2d at 1093.

                omitted).   The argument is usually raised in situations where law enforcement conduct involves extreme physical or mental brutality or where the crime is "manufactured by the government from whole cloth."  United States v. Smith, 802 F.2d 1119, 1125 (9th Cir.1986) (internal quotation omitted)
                

III. Motion to Suppress

Green contends that his arrest was unlawful and accordingly the district court erred by not suppressing statements made and evidence seized incident to the arrest. The government concedes that Green was arrested rather than merely detained. Thus, the arrest must be supported by probable cause. See United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990).

"The test for probable cause is whether the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990). The experience and expertise of the officers involved may be considered in determining probable cause. Id. Probable cause may be based on the collective knowledge of the officers...