U.S. v. Owen, 78-1273

• Decision Date: 18 August 1978
• Docket Number: No. 78-1273,78-1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Estel OWEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 365

580 F.2d 365

UNITED STATES of America, Plaintiff-Appellee, v. David Estel OWEN, Defendant-Appellant.

No. 78-1273.

United States Court of Appeals Ninth Circuit.

Aug. 18, 1978.

J. Bradford Shiley, Jr., Portland, Or., for defendant-appellant.

Kenneth A. Bauman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

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

Before DUNIWAY and CHOY, Circuit Judges, and GRANT, ^* District Judge.

GRANT, District Judge:

This appeal follows the denial of a motion to dismiss an indictment charging the distribution of cocaine. The dismissal was sought as a punitive measure against the government for alleged misconduct on the part of an agent of the Drug Enforcement Administration (DEA). Defendant Owen was arrested in April 1977 for the sale of cocaine as the result of the cooperation of a DEA informant. On 28 April 1977 a grand jury returned a four-count indictment charging Owen in Counts I, II, and III, with distribution of cocaine. Count IV charged Owen with possession with intent to distribute cocaine, all in violation of 21 U.S.C. § 841(a)(1). Owen originally pleaded not guilty but later, on 14 June 1977, changed his plea to guilty to Count I of the indictment pursuant to a plea bargain agreement wherein the government recommended that the defendant should not receive a sentence in excess of five years. On 1 August 1977 the trial court sentenced Owen to five years, a $12,500 fine, and a special parole term of three years, following which the court dismissed Counts II, III, and IV.

On 22 September 1977, four days prior to the date he was to report to the federal prison, defendant filed a motion to dismiss the indictment, together with a supporting affidavit alleging gross governmental misconduct, or in the alternative, to reduce his sentence. In support of the motion, Owen alleged certain contacts with DEA Agent Richard Horn, during the time period between his change of plea and the date of sentencing. Defendant contended that Horn interfered with his right to counsel by pressuring him to supply incriminating information against one of Owen's lawyers, a D. Lawrence Olstad. The "pressure" consisted of alleged promises that if Owen complied, he would not have to go to prison and that if Owen failed to cooperate, the plea bargain would be voided. On 3 October 1977, after defendant started serving his sentence, defendant's counsel requested the court to issue a writ of Habeas corpus ad testificandum calling for defendant's presence at an upcoming hearing on his motion to dismiss the indictment. That request was denied and defendant asserts this as reversible error. On 11 October 1977 a hearing on the motion to dismiss resulted in its denial and the present appeal. At this hearing Owen's other counsel, J. Bradford Shiley, testified that he had not known of the DEA action at the time the plea bargain was negotiated, that he had not brought up any alleged improprieties at the sentencing even though he knew of their existence, and that "No man who has ever appeared here deserves five years more than Owen does". Furthermore, it was shown that Olstad allowed the DEA to meet with his client and that the U. S. Attorney had not engaged in any impropriety.

The issues this court faces are whether the defendant established a level of governmental misconduct such that it was trial court error to deny a motion to dismiss the indictment and, secondly, whether the trial court abused its discretion in denying a writ of Habeas corpus ad testificandum, thereby preventing defendant from testifying at the hearing on his motion to dismiss.

1. Gross Governmental Misconduct

Under its inherent supervisory powers, a federal court is empowered to dismiss an indictment on the basis of governmental misconduct. See generally United States v. Baskes, 433 F.Supp. 799, 804-07 (N.D.Ill.1967). As such, dismissal is used as a prophylactic tool for discouraging future deliberate governmental impropriety of a similar nature. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Houghton, 554 F.2d 1219, 1224 (1st Cir. 1977), Cert. den., 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). However, these supervisory powers "remain a harsh, ultimate sanction (which) are more often referred to than invoked." United States v. Baskes, 433 F.Supp. at 806. Cf. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973) ("(W)e may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction").

Owen does not quarrel with the general proposition that the dismissal of an indictment on the basis of governmental misconduct is an extreme sanction which should be infrequently utilized; however, he argues that the significant misconduct of the DEA justifies such relief. This court notes the seriousness of the charge that a DEA agent was interfering with the defense of an alleged drug violator. However, in the case at bar, defendant has failed to substantiate that charge.

Owen is unable to show any prejudice resulting from this misconduct. His opening brief candidly admits that he is guilty of the crime alleged and that the misconduct was directed at individuals other than Owen....