U.S. v. Stevens

• Decision Date: 03 August 1979
• Docket Number: No. 78-1884,78-1884
• Citation: 601 F.2d 1075
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Robert Lee STEVENS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1075

601 F.2d 1075

UNITED STATES of America, Plaintiff-Appellant, v. Robert Lee STEVENS, Defendant-Appellee.

No. 78-1884.

United States Court of Appeals, Ninth Circuit.

Aug. 3, 1979.

Chester L. Brown (argued), Brown & Newton, Beverly Hills, Cal., for defendant-appellee.

John D. Vandevelde, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellant.

Appeal from the United States District Court for the Central District of California

Before ELY and TRASK, Circuit Judges, and EAST, ^* District Judge.

TRASK, Circuit Judge:

Robert Lee Stevens appeals from his conviction for making false statements to banks insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C. § 1014, and for making a certificate of deposit without authority and with intent to defraud in violation of 18 U.S.C. § 1005. We affirm.

I

Appellant was found guilty after a jury-waived trial on stipulated facts. He admitted that on January 9, 1975, he applied for a loan of $225,000 from the United California Bank and presented a stolen and forged Bank of America time certificate of deposit in the amount of $250,000 as security for that loan. The certificate had been stolen with the assistance of a Bank of America employee. Stevens signed the employee's name to the certificate and to a letter acknowledging that the certificate had been posted as security for the United California Bank loan. Stevens renewed the loan on February 2, 1976, again pledging the stolen and forged certificate as collateral. On March 10, 1975, he applied for a $125,000 loan from Gibraltar Savings and Loan; on January 20, 1976, he applied for a $5,000 loan from Lloyds Bank; on November 18, 1976, he applied for a $5,000 loan from Manufacturers Bank. In each instance the loan application failed to disclose Stevens' liability to United California Bank.

Stevens made no payments on the United California Bank loan after February 1976. United California Bank presented the $250,000 certificate of deposit it held as collateral to the Bank of America on October 23, 1976, and learned the certificate was invalid. On November 4, 1976, United California Bank investigator Frank Northrup and Bank of America investigator Gerald E. Caminer met with Stevens' attorney, Barry Menes. Menes told the investigators that Stevens had informed him that two former employees of United California Bank and Bank of America had been involved in the theft and forgery of the certificate. Menes said Stevens might refuse to identify the employees because of the risk of self-incrimination. However, Menes indicated that his client might be willing to sign a repayment agreement.

Later that afternoon Stevens joined the meeting. Stevens' and Menes' version of what was said contrasts sharply with Northrup's and Caminer's account. According to Stevens and his lawyer, the bank investigators promised that if Stevens signed a repayment agreement and disclosed the identity of the bank employees who helped him obtain the stolen certificate of deposit, the banks would not notify the FBI or otherwise initiate criminal proceedings against him. Relying on this so-called "promise of immunity from prosecution," Stevens said he would sign the repayment agreement, and he gave the investigators a detailed account of the theft and forgery of the certificate of deposit. At the conclusion of the meeting, Caminer prepared a memorandum which said the banks' representatives had orally promised not to initiate a prosecution against Stevens if he performed his part of the bargain. Northrup and Caminer later claimed the memorandum was inaccurate.

Five days after the meeting of November 4, 1976, a United California Bank official reported Stevens' incriminating statements to the FBI. A federal investigation resulted, and on September 19, 1977, a federal grand jury for the Central District of California indicted appellant on seven counts of making false statements to banks insured by the Federal Deposit Insurance Corporation and making a certificate of deposit without authority and with intent to defraud.

In a pretrial motion, Stevens argued that the bank investigators were De facto government agents, and he asked the district court either to decree specific performance of the alleged promise of immunity by dismissing the indictment or to suppress the confession and its fruits because they were obtained by means of a false promise. It is from the denial of this motion that Stevens now appeals. The district judge made no findings of fact regarding what, if any, promises were made. He reasoned that even if all of Stevens' allegations were true, the government was not bound by the investigators' promise of immunity because, as a matter of law, they were not government agents. We agree with the district court's analysis and likewise see no reason to resolve the factual dispute over what was said at the November 4, 1976 meeting.

II

Under certain circumstances private actors are transformed into government agents by virtue of their involvement in a federally regulated crime prevention program. This doctrine is best illustrated by the airplane passenger search cases. In United States v. Canada, 527 F.2d 1374 (9th Cir. 1975), Cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976), and United States v. Davis, 482 F.2d 893 (9th Cir. 1973) this court held that because federal regulations require privately employed airline security personnel to search passengers' carry-on luggage, such searches constitute state action for Fourth Amendment purposes. However, where the regulations do not specifically mandate the particular type of search engaged in, the airline employees' actions are deemed private in nature. See United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979) (en banc) (search of airfreight shipment held private); United States v. Ogden, 485 F.2d 536 (9th Cir.), Cert. denied, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1973) (search of checked baggage held private).

Appellant analogizes his interrogation by bank investigators to the search of airplane passengers in Canada and Davis. According to Stevens, the interrogation and concomitant promise of immunity were mandated by federal regulations and were therefore government actions. Appellant points out that banks insured by the Federal Deposit Insurance Corporation are required to report wrongdoing to federal authorities. He says banks cannot discharge their duties without conducting investigations and interviews. To secure an interviewee's cooperation, promises of immunity are sometimes necessary, Stevens claims. Under appellant's theory, the federal regulatory scheme cloaks bank investigators with apparent authority to make such promises. In effect, bank investigators have been deputized as De facto government agents. And when government agents make promises to a person in order to induce him to incriminate himself, the government must honor those promises. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Rodman, 519 F.2d 1058 (1st Cir. 1975); United States v. Carter, 454 F.2d 426 (4th Cir.) (en banc), Cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1972). Appellant would have us hold that the bank investigators' promises bind the United States, just as the Securities and Exchange Commission investigator's promises bound the government in Rodman and the prosecutors' promises bound the government in Santobello and Carter.

We reject Stevens' arguments for two reasons. First, it requires an unreasonable stretch of the imagination to read into the banking regulations a provision granting private investigators, who are answerable to no one save their own employers, the power to confer immunity from prosecution. Second, in light of the fact that the investigators possessed sufficient information to comply with federal reporting requirements Before they questioned Stevens, the interrogation and promise of immunity can only be regarded as gratuitous private acts rather than as deeds...