U.S. v. Long
| Decision Date | 06 June 1975 |
| Docket Number | No. 74--1172,74--1172 |
| Citation | 511 F.2d 878 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Richard Eugene LONG, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Henry A. Schwarz, U.S. Atty., William C. Evers, III, Asst. U.S. Atty., E. St. Louis, Ill., for plaintiff-appellant.
Jerome J. Schlichter, E. St. Louis, Ill., for defendant-appellee.
Before MARIS, * HASTINGS and TONE, Circuit Judges.
The Government has taken this appeal from an order of the district court dismissing an indictment charging the defendant, Richard Eugene Long, with knowing possession of a sawed-off shotgun not registered in the National Firearm Registration and Transfer Record and not identified by a serial number, in violation of section 5861(d) and (i) of the Internal Revenue Code of 1954, as amended by the Gun Control Act of 1968. 26 U.S.C.A. § 5861(d) and (i).
The facts disclosed by the record are that on January 26, 1973 the defendant was arrested for alleged narcotics and firearms violations by agents of the Illinois Bureau of Investigation, herein referred to as IBI, who then filed charges against him for the state narcotics violations only. The defendant was held in state custody in the St. Clair County jail in Belleville, Illinois. Several days thereafter, the defendant's father, Herbert E. Long, presently and for the past 17 years a patrolman employed by the Herrin, Illinois Police Department, and the defendant's brother, Danny Ray Long, met with Ronald Grimming, a special agent of the IBI at the IBI office in Belleville to request permission to see the defendant and to inquire into the charges against him. At this meeting Herbert and Danny Long and Grimming arrived at an agreement, subject to the defendant's acquiescence, which the Longs then communicated to the defendant in the county jail. Later, in the presence of his brother and father, Grimming, another IBI agent, and Lieutenant Robert Vergess, Chief Investigator of the St. Clair County Sheriff's Office, the defendant assented to the deal, the terms of which were, however, not stated at that time. There immediately followed an interview of approximately two hours in which the defendant answered all questions put to him. In the next few weeks the defendant supplied information by telephone to the sheriff's office at the county jail or to Grimming in the IBI office. Subsequently, the defendant was indicted on the state drug offense and the trial is presently pending in the state court.
On August 21, 1973 a federal grand jury handed down an indictment against the defendant for the firearms violations. The defendant filed a motion in the district court to dismiss the indictment as contrary to a grant of immunity and requested a hearing to determine whether a promise had been made and, if so, its scope. The district court granted the defendant's request for a hearing at which it received conflicting testimony concerning the substance of Grimming's promise, the kind of cooperation required of Long and the extent of Long's cooperation following the agreement. The defendant testified that he cooperated fully, telling all he knew. Herbert and Danny Long testified that Grimming, after stating to them that he was in a position to file state and federal charges against the defendant for firearms violations, would instead keep the defendant's sawed-off shotgun, which he then held, locked up in his safe, that no gun charge would ever be made and that the defendant would receive probation for any conviction on the drug charge if he would tell all he knew. Grimming admitted on cross examination that, in fact, he did keep the sawed-off shotgun in his safe until he turned it over to the federal authorities in the spring of 1973; however, Grimming insisted that he agreed only to make a recommendation to and advise the state and United States attorneys of the defendant's cooperation and that, in any event, the answers given by the defendant were evasive or untrue, that mere oral conversation is not 'full cooperation', and that, in fact, the defendant did not cooperate and Grimming did not make the recommendations. Grimming further stated that he did not gain any essential information from Long related to his possession of the shotgun following the agreement made with Long at the county jail. The district court made the finding on the basis of the evidentiary hearing that 'there did exist an agreement between the Defendant and IBI agent Grimming that the Defendant would not be prosecuted for any firearms violation if he cooperated and told what he knew regarding narcotics violations . . .', which cooperation, the court found, the defendant had given. The court concluded that it could properly dismiss the federal indictment which resulted from the breach of the state agent's promise on the grounds of fundamental fairness to the defendant and because, as the court expressed it, 'IBI agents who investigate, arrest, and charge a Defendant with a federal violation are in a functional sense, and in the eyes of the accused, agents of the United States.' The district court accordingly dismissed the indictment and this appeal by the Government followed. The issue primarily presented by the appeal is whether such an agency relationship existed or may be deemed to have existed between IBI agent Grimming and the United States Government as to give state agent Grimming the power to bind the federal government to keep the promise allegedly made by Grimming to the defendant while he was being held in state custody. In our consideration of this issue we are not indifferent to the fundamentally fair treatment which is the defendant's due; however, unless an agency relationship may be deemed under the facts of the case and the established law to have existed, the federal government cannot be held bound by the bargain alleged to have been made by the state agent, regardless of whether or not such a bargain was in fact made by the state officer.
At the outset we note that the district court offered no jurisprudential support for its conclusion that, absent an actual or apparent agency authorization, legal responsibility as principal...
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