U.S. v. Swiatek

• Decision Date: 13 May 1987
• Docket Number: No. 86-1872,86-1872
• Citation: 819 F.2d 721
• Parties: 23 Fed. R. Evid. Serv. 156 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. SWIATEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 721

819 F.2d 721

23 Fed. R. Evid. Serv. 156

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. SWIATEK, Defendant-Appellant.

No. 86-1872.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1987.

Decided May 13, 1987.

Allan A. Ackerman, Allan A. Ackerman, P.C., Chicago, Ill., for defendant-appellant.

John L. Burley, U.S. Dept. of Justice Strike Force, Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

Michael Swiatek was sentenced to twenty years imprisonment for dealing in firearms and explosives. He argues on appeal that his conviction should be reversed because the government's conduct during its undercover investigation of his activities was outrageous, and because the district court made numerous errors during his trial which denied him a fair trial. We reject these contentions, and affirm Swiatek's conviction.

I.

The Bureau of Alcohol, Tobacco, and Firearms ("ATF") began to investigate Swiatek in the spring of 1984, after Swiatek's name came up in conversations between ATF agents and Gene Webb. Webb a man with a criminal record of robbery and burglary, had agreed after his release from prison in early 1984 to cooperate with the ATF by introducing Special Agent John Mazzola, who was working undercover, to some of his past associates. In return, the ATF paid Webb a weekly fee and a monthly subsistence allowance, helped him apply for public assistance, and paid his rent and telephone bills.

On June 12, 1984, Webb and Special Agent Mazzola drove to the restaurant Swiatek managed, and Webb introduced Mazzola to Swiatek as Webb's partner, "Johnny." This was the first in a series of meetings between the three men which led to the indictment in this case.

Throughout the summer and fall of 1984, Mazzola and Webb made periodic visits to Swiatek's restaurant. They represented themselves as amateur thieves, and repeatedly asked Swiatek for help and advice concerning the procurement of firearms and explosives. After some initial reluctance, Swiatek agreed to help Mazzola and Webb, and on five occasions he sold them firearms and explosives.

On August 29, 1985, a federal grand jury returned an indictment against Swiatek for the five weapons sales, and for unlicensed dealing in firearms and explosive materials. ¹ Before trial, Swiatek informed the district court that he intended to argue both that he was entrapped and that the government's conduct during its investigation was so outrageous that it had violated his Fifth Amendment due process rights. He moved for a pretrial hearing on the outrageous conduct issue. The district court denied his motion, ruling that there was insufficient evidence of a Fifth Amendment violation.

At trial, the principal evidence against Swiatek consisted of the physical evidence of the guns and bombs he had sold, eighteen tape-recorded conversations with Special Agent Mazzola and Gene Webb concerning these sales, and the testimony of Mazzola and Webb. Swiatek submitted proposed jury instructions on both his entrapment theory and his outrageous conduct theory. The district court rejected Swiatek's proposed instructions on his outrageous conduct theory, finding that the theory was not supported by sufficient evidence. However, the court did instruct the jury on Swiatek's entrapment defense. The jury found Swiatek guilty on all counts but one.

Swiatek moved for a post-trial hearing on the outrageous conduct issue, and the court denied his motion. On May 22, 1986, the district court sentenced Swiatek to twenty years imprisonment, to run concurrently with a five year sentence imposed on Swiatek in an unrelated case, and fined Swiatek $200. This appeal followed.

II.

Swiatek's claims on appeal fall into two categories. First, Swiatek argues that the government's conduct in investigating him was so outrageous that it violated his due process rights, and therefore his indictment should have been dismissed. In connection with this claim, Swiatek argues that the district court should have held a pretrial or post-trial hearing on the question of outrageous government conduct, and that the court should have instructed the jury as to this issue.

Second, Swiatek objects to the way in which his trial was conducted. He argues that the district court made numerous errors which denied him a fair trial, and that his conviction should therefore be overturned. We reject each of these claims and affirm Swiatek's conviction.

A.

We first address Swiatek's claim that the court erred in declining to hold an evidentiary hearing on the question of outrageous government conduct. Because we conclude, as did the district court, that there was insufficient evidence to justify even a hearing on this issue, we need not consider whether Swiatek's indictment should have been dismissed because of outrageous government conduct.

The doctrine of outrageous government conduct stems from a statement in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), a case involving the entrapment defense. The Supreme Court found that the defendant in Russell was predisposed to commit the crime at issue, and therefore was not entrapped. However, the Court noted that it might "some day 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." Id. at 431-32, 93 S.Ct. 1643. This circuit has also left the possibility open, although we have never reversed a conviction on this ground. United States v. Bruun, 809 F.2d 397, 409 (7th Cir.1987).

A trial court need only grant an evidentiary hearing on the issue of outrageous government conduct when the defendant has presented specific facts that are sufficient to raise a significant doubt about the propriety of the government's actions. See Owen v. Wainwright, 806 F.2d 1519, 1523 (11th Cir.1986); cf. United States v. Hamm, 786 F.2d 804, 807 (7th Cir.1986) (to justify a suppression hearing, defendant must present facts that are "definite, specific, detailed and nonconjectural."). In this case, the district court's denial of a hearing on the question of outrageous government conduct was not error.

Swiatek moved for an evidentiary hearing twice: once before trial, and again after the trial. Both motions were based on the same allegations of government misconduct. Even after extensive pretrial discovery and a full trial, these allegations were not supported by sufficient facts to raise a significant doubt about the government's behavior.

Swiatek's first and strongest allegation on appeal is that he was "pre-targeted"--that is, vindictively singled out--by the ATF Strike Force, because of its failure to convict Swiatek in an earlier Strike Force prosecution. However, the only evidence to support this theory is the bare fact of a previous acquittal.

Second, Swiatek alleges that Webb, a "lifelong criminal," was paid on a contingent basis. However, there is no evidence in the record that the money Webb received from the ATF was contingent on Swiatek's conviction, or on Webb's testimony at trial. ²

Third, Swiatek emphasizes the fact that Webb and Mazzola showed him jewelry and a car that they claimed they had stolen in an effort to get him to re-enter a life of crime. But there is nothing outrageous in the fact that Webb and Mazzola, while pretending to be thieves, exhibited these objects to Swiatek. "It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932).

Finally, Swiatek alleges that Webb was largely unsupervised, and calls our attention to testimony that Webb and Swiatek had both telephone and face-to-face contact in Special Agent Mazzola's absence. However, even if there were unsupervised meetings between Webb and Swiatek, the government did not utilize them in making its case against Swiatek.

Because Swiatek's allegations did not raise a significant doubt about the government's conduct, the district court did not err in denying Swiatek's motions for an evidentiary hearing.

B.

Swiatek offered two instructions for submission to the jury concerning his theory of outrageous government conduct. The court did not instruct the jury at all on this theory, because it believed that the theory was supported by insufficient evidence. Swiatek challenges this failure to instruct as prejudicial error. We affirm the trial court's decision, on the broader ground that the issue of outrageous government conduct is not an issue for the jury.

All of the circuits that have considered the question have held that the issue of outrageous government conduct is not a jury question. See, e.g., United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir.1980); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.1978); United States v. Johnson, 565 F.2d 179, 181-82 (1st Cir.1977), cert. denied, 434 U.S. 1075, 98 S.Ct. 1264, 55 L.Ed.2d 780 (1978); United States v. Graves, 556 F.2d 1319, 1322 (5th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978); United States v. Quinn, 543 F.2d 640, 647-48 (8th Cir.1976). We agree with the conclusion of these cases. Whether the government has stepped beyond permissible constitutional bounds in attempting to enforce the law is a legal question, not a factual one. See Johnson, 565 F.2d at 181-82; see also Hampton v. United States, 425 U.S. 484, 497, 96 S.Ct. 1646, 1653, 48 L.Ed.2d 113 (1976) ...