U.S. v. Ward, s. 85-1632

• Decision Date: 04 June 1986
• Docket Number: Nos. 85-1632,85-1637,s. 85-1632
• Citation: 793 F.2d 551
• Parties: 21 Fed. R. Evid. Serv. 44 UNITED STATES of America v. John WARD Appellant in 85-1632 and Steven Keiper a/k/a "Butch" Appellant in 85-1637. . Submitted Under the Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 551

793 F.2d 551

21 Fed. R. Evid. Serv. 44

UNITED STATES of America v. John WARD Appellant in 85-1632 and Steven Keiper a/k/a "Butch" Appellant in 85-1637.

Nos. 85-1632, 85-1637.

United States Court of Appeals Third Circuit.

Submitted Under the Third Circuit Rule 12(6)

June 4, 1986

Decided June 20, 1986.

Rehearing and Rehearing In Banc in No. 85-1632 Denied July 14, 1986.

Michael J. Weintraub, Lambertville, N.J., for appellant Ward.

John J. Kerrigan, Jr., Stuckert & Yates, Newtown, Pa., for appellant Keiper.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., John P. Pucci, Asst. U.S. Atty., Ronald A. Sarachan, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, WEIS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The primary question presented in these consolidated criminal appeals is whether the government's involvement in the commission of the offenses for which defendants were convicted was so outrageous as to violate their right to due process.

Defendants John Ward, Steven Keiper and John Bedekovic were charged with conspiracy to possess with intent to distribute 20,000 pounds of marijuana. 21 U.S.C. Secs. 841(a)(1), 846 (1982). In addition, Ward was charged with two counts and Keiper with one count of interstate travel to facilitate unlawful activity, 18 U.S.C. Sec. 1952 (1982), and Ward was charged with three counts of illegal use of a communications facility to execute the unlawful conspiracy, 21 U.S.C. Sec. 843(b) (1982). Bedekovic pleaded guilty on the first day of trial and testified on behalf of the government. Ward and Keiper admitted all elements of the offenses charged, but asserted an entrapment defense. The jury rejected this defense and convicted Ward and Keiper on all charges.

On appeal, Ward and Keiper do not contest the jury's verdict regarding entrapment. Rather, they insist that the district court erred in refusing to dismiss the indictment on the ground that law enforcement conduct in this case violated due process as a matter of law. Defendants also assert objections to certain evidence introduced at trial. Since we do not find these contentions meritorious, we will affirm.

I.

The evidence produced at trial demonstrated that the marijuana distribution scheme originated in December 1984, when Bedekovic was an inmate at the federal prison in Allenwood, Pennsylvania. A fellow prisoner, Jack Goepfert, was an FBI informant. According to Bedekovic, Goepfert approached him and proposed to finance a marijuana distribution endeavor, to be operated by friends of Bedekovic who were not incarcerated. Informant Goepfert testified that Bedekovic, not he, initiated the discussion of illegal activities.

Goepfert explained without contradiction that Bedekovic told him that Bedekovic's associates could handle the distribution of up to 3,000 pounds of marijuana per week. Goepfert imparted this information to an FBI special agent, and on January 24, 1985, the agent, posing as a drug dealer, met at Allenwood with Goepfert, Bedekovic, and Bedekovic's friend, defendant Ward. The special agent later turned the case over to Drug Enforcement Administration (DEA) personnel, who continued the negotiations.

After numerous telephone calls, Bedekovic induced another friend to join the conspiracy- : defendant Keiper. Keiper's role would be to drive a truck containing the marijuana from Panama City, Florida to a "safehouse" in western Pennsylvania.

Over subsequent months, Ward paid the DEA agents $30,000 in requested seed money to finance the smuggling operation, made many trips to Allenwood to talk to Bedekovic, and, along with Keiper, travelled in Ward's plane to inspect the safehouse where the marijuana was to be stored. Defendants also inspected the location in Florida, used by the DEA, which included landing strips, docking facilities, and other accoutrements of an organized smuggling operation.

The final plan called for the DEA agents to sell 20,000 pounds of marijuana to the defendants, in return for $5.8 million to be paid over a two-week period. On March 24, 1985, Ward and Keiper met the putative drug suppliers in Florida to consummate the transaction. After Ward sampled and expressed his satisfaction with the contraband, he and Keiper were arrested.

Other evidence introduced at trial showed that the Allenwood arrangement was not the only participation in drug trafficking by the defendants. It was established, through Ward's own admissions taped during the course of the conspiracy as well as through other testimony, that he had engaged in major drug deals regularly for at least ten years. Keiper admitted at trial that he had arranged or participated in the transportation of large amounts of marijuana in 1979 and 1983.

II.

Both defendants allege that the government's involvement in and creation of the drug smuggling operation was so "outrageous" that it violated fundamental fairness and due process.

The outrageous conduct doctrine finds support in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The Supreme Court had held previously that the entrapment defense focuses on the predisposition of the defendant, and not the government's objectively improper conduct. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Hampton, however, five Justices intimated that certain government conduct may be so offensive to notions of due process that it violates the defendant's constitutional rights, regardless of the defendant's predisposition. Although a majority in Hampton affirmed the defendant's conviction, three Justices dissented and declared that the government's conduct violated due process, 425 U.S. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting), and two concurring Justices strongly indicated their agreement that such a defense exists, id. at 493, 96 S.Ct. at 1651 (Powell, J., concurring). Justice Powell added:

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic....

Id. 425 U.S. at 495-96 n. 7, 96 S.Ct. 1653 n. 7.

Accepting the existence of the due process defense, this Court in United States v. Twigg, 588 F.2d 373 (3d Cir.1978), determined that there was a "demonstrable level of outrageousness" in the degree of official participation in the illegal manufacture of methamphetamine hydrochloride ("speed") and related offenses by the defendants in that case. Accordingly, the defendants' convictions for these crimes were vacated. In Twigg, Kubica, a government informant, contacted Neville, a long-time acquaintance, and they agreed to manufacture and distribute speed. Neville provided $1,500 and was to be primarily responsible for distributing the product; defendant Twigg had a minor role. Kubica, meanwhile, undertook to supply the necessary equipment raw materials, and laboratory location, and also directed the manufacturing operation. The Court, in a 2-to-1 decision, and without delineating a specific test, found on these facts a lack of fundamental fairness in defendants' convictions.

To date, Twigg remains the only post-Hampton appellate court decision to reverse a conviction because of law enforcement conduct characterized as "outrageous." But see United States v. Lard, 734 F.2d 1290, 1296 (8th Cir.1984) (reversing conviction on the basis of entrapment, but also noting that the government conduct "approached" outrageousness). "Despite the holding in Twigg, this court and other appellate courts have since exercised extreme caution in finding due process violations in undercover settings." United States v. Gambino, 788 F.2d 938, 945 n. 6 (3d Cir.1986). An example of such caution is our decision in United States v. Beverly, 723 F.2d 11 (3d Cir.1983) (per curiam).

In Beverly, a government informant introduced defendant Adams to a federal agent. Adams boasted--he later claimed falsely--that he was an experienced arsonist, and the agent offered Adams $3,000 to burn a building. A government-owned building was used as the target, and a Philadelphia police officer posed as the owner of the building seeking the arson. Adams then recruited Beverly, who said he had never been involved in any previous arsons. The agent purchased a gasoline can, gasoline and disguises, and drove the defendants to the building. At the building, defendants were arrested.

The facts in Beverly are quite similar to those in Twigg in a number of respects--both criminal activities relied at every stage on the initiation, participation and expertise of the government representative. Nevertheless, the Beverly Court declared: "We are not prepared to conclude that the police conduct in this case shocked the conscience of the Court or reached that 'demonstrable level of outrageousness' necessary to compel acquittal so as to protect the Constitution." Id. at 13. The Court was reluctant to exercise " 'a Chancellor's foot' veto over law enforcement practices of which it [does] not approve." Id. (quoting Russell, 411 U.S. at 435, 93 S.Ct. at 1644).

Thus far the precise nature of the Twigg defense remains unclear. United States v. Jannotti, 673 F.2d 578, 606 (3d Cir.) (in banc), cert denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). The present case, however, does not offer an appropriate opportunity to assay a clear definition, inasmuch as it presents facts hardly comparable to the egregious circumstances found in Twigg and to a lesser extent in Beverly.

Since here the government alleges that it aimed to...