U.S. v. Luttrell, s. 87-5303

• Decision Date: 23 January 1991
• Docket Number: 87-5310,Nos. 87-5303,s. 87-5303
• Citation: 923 F.2d 764
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laurie Jane LUTTRELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Dale KEGLEY, aka: Bill Kegley, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 764

923 F.2d 764

UNITED STATES of America, Plaintiff-Appellee, v. Laurie Jane LUTTRELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Dale KEGLEY, aka: Bill Kegley, Defendant-Appellant.

Nos. 87-5303, 87-5310.

United States Court of Appeals, Ninth Circuit.

Jan. 23, 1991.

Donald B. Marks, Beverly Hills, Cal., for defendant-appellant, Luttrell.

Anthony P. Brooklier, Beverly Hills, Cal., for defendant-appellant, Kegley.

Maurice A. Leiter, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before GOODWIN, Chief Judge, WALLACE, PREGERSON, ALARCON, CANBY, NORRIS, WIGGINS, BRUNETTI, NOONAN, O'SCANNLAIN, and LEAVY, Circuit Judges.

ORDER

This case was taken en banc on July 19, 1990 and submitted on briefs without oral argument on September 27, 1990. The court now being fully advised, we vacate that part of the three-judge court's opinion which addresses whether the government need have "reasoned grounds" to investigate a particular individual. See United States v. Luttrell, 889 F.2d 806, 812-14 (9th Cir.1989). Specifically, that opinion is hereby amended as follows:

On page 807, right column, first paragraph of text of opinion, last sentence, delete "in part, and remand in part." Delete from page 812, right column, the first full paragraph, beginning "In an effort to introduce ..." through page 814, first full paragraph, left column, at the sentence ending "In any event...." On page 814, left column, second full paragraph, delete the sentence beginning "On remand...." On page 814, right column, delete the words "IN PART and REMANDED IN PART."

In partially vacating the three-judge court's opinion, we follow four of our sister circuits in explicitly rejecting a "reasoned grounds" requirement for investigation of an individual under the due process clause. See United States v. Jenrette, 744 F.2d 817, 824 (D.C.Cir.) (no constitutional violation where FBI targeted defendant without "reasonable suspicion" of wrongdoing), cert. denied, 471 U.S. 1099, 105 S.Ct. 2321, 85 L.Ed.2d 840 (1984); United States v. Gamble, 737 F.2d 853, 860 (10th Cir.1984) ("government need not have reasonable suspicion of wrongdoing in order to conduct an undercover investigation"); United States v. Jannotti, 673 F.2d 578, 608-09 (3d Cir.1982) (en banc) (rejecting "reasonable basis" test), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984); United States v. Myers, 635 F.2d 932, 941 (2d Cir.) (rejecting "reasonable suspicion" requirement), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980).

We have no reason to review the other parts of the three-judge court's opinion.

PREGERSON, Circuit Judge, dissenting:

I dissent from the order vacating the part of the original panel's opinion that requires the government to have reasoned grounds to investigate a particular individual. It is well established that constitutional protection of due process is violated when the government engages in outrageous investigatory conduct. See United States v. Bogart, 783 F.2d 1428, 1432 (9th Cir.1986), and cases cited therein. I believe that the category of outrageous government conduct includes instances when the government targets an individual for undercover investigation without reasoned grounds to believe that the particular individual is...