U.S. v. Williams, s. 84-5177

• Citation: 791 F.2d 1383
• Decision Date: 17 June 1986
• Docket Number: Nos. 84-5177,84-5178 and 84-5184,s. 84-5177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irvin WILLIAMS, Ronald Gene Sears, Morris L. Johnson, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1383

791 F.2d 1383

UNITED STATES of America, Plaintiff-Appellee, v. Irvin WILLIAMS, Ronald Gene Sears, Morris L. Johnson Defendants-Appellants.

Nos. 84-5177, 84-5178 and 84-5184.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1985.

Decided June 17, 1986.

James E. Berliner, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Donald Etra, Sidley & Austin, John P. Gyorgy, Deputy Federal Public Defender, Jay Lichtman, Los Angeles, Cal., for defendants-appellants.

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

Before FLETCHER, PREGERSON, and HALL, Circuit Judges.

PREGERSON, Circuit Judge.

Appellants Williams, Sears, and Johnson entered conditional pleas of guilty to the offense of escape from prison in violation of 18 U.S.C. Sec. 751. ¹ We affirm the district court's pretrial rulings in all but one respect. The district court erred in its pretrial ruling that defendant Johnson's offer of proof was insufficient to support a duress defense. Thus, we reverse appellant Johnson's conviction and remand to the district court for further proceedings to enable Johnson to present his duress defense at trial. We affirm the convictions of appellants Williams and Sears.

FACTS

On October 22, 1983, six inmates, including appellants Williams, Johnson, and Sears, escaped from the United States Penitentiary at Lompoc, California by driving the prison garbage truck through the prison fence. A short distance from the fence, the truck, riddled by heavy gunfire from nearby guard towers, went out of control and collided with security roadblocks. One escapee died in the cab of the truck and the others were taken back into custody.

After arraignment, appellant Johnson filed several pretrial motions including: a Motion to Dismiss the Indictment Based On Unconscionable Government Conduct alleging that prison officials had advance knowledge of, and encouraged or assisted in, his escape; a Motion for Production of Evidence Favorable to Defendant; and a Motion for Disclosure of Informant Information. Appellants Sears and Williams joined in those motions. Sears also filed a separate Motion for Discovery. The district court denied all of these motions.

The government subsequently moved in limine to preclude Johnson from presenting evidence that related to a duress defense. The court granted the government's motion in limine, but accorded On May 17, 1984, each of the appellants pled guilty to a single count of violating 18 U.S.C. Sec. 751 (escape from prison). They pled conditionally, reserving their rights to appeal from the district court's adverse rulings on their pretrial motions. Appellant Johnson also reserved his right to appeal the district court's ruling granting the government's motion in limine to preclude a duress defense.

Johnson the opportunity to make an offer of proof regarding his duress defense.

On July 2, 1984, the district judge sentenced each appellant to five years in prison; the sentences were ordered to run consecutively with sentences appellants already were serving.

DISCUSSION

1. Outrageous Government Conduct.

Appellants contend that the district court erred in denying their pretrial motion to dismiss their indictments due to "outrageous government conduct." In support of this motion, appellants Johnson and Sears filed declarations alleging that: (a) several months before their escape, prison authorities placed them in administrative segregation for planning to escape with the use of a prison truck; (b) prison authorities were aware of the plan to escape and took no steps to prevent it; (c) although prison authorities initially changed Sears' prison employment from the mess hall in order to hinder his access to the escape truck, they later returned him to mess hall duty; and (d) prison authorities assisted in and "perhaps encouraged" the escape attempt. The government refuted the appellants' allegations and supported its position by providing declarations of prison employees and by providing the court in camera with information that related to current inmates and Bureau of Prison security measures. In denying appellants' motion, the district court ruled that, even taking their allegations as true, the alleged conduct of the government fell "fatally short" of the kind of creative, direct and continuous involvement required to sustain the outrageous government conduct defense.

The district court's denial of a motion to dismiss an indictment based on outrageous government conduct involves a question of law. United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). As such, we review it de novo. See United States v. McConney, 728 F.2d 1195, 1200-04 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The due process clause of the Fifth Amendment may bar a conviction where the government's involvement in a criminal enterprise grossly outrages and shocks the universal sense of justice. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973); United States v. Bagnariol, 665 F.2d 877, 881-82 (9th Cir 1981) (per curiam), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). The involvement of the government must be "malum in se" or the government must have "engineered and directed the criminal enterprise from start to finish." United States v. Gonzales, 539 F.2d 1238, 1239-40 (9th Cir.1976) (per curiam). Only such egregious conduct constitutes a due process violation.

The few convictions that courts have reversed on the ground of outrageous government involvement have resulted from government conduct that rises to a level of "creative activity." See Greene v. United States, 454 F.2d 783, 787 (9th Cir.1971) (government agent helped establish and then sustained criminal operations and was the only customer of the illegal bootlegging operation he helped create).

In the present case, the outrageous government conduct defense fails. The government did not "create" the offense charged, see Greene, 454 F.2d at 787, nor did it "engineer and direct the criminal enterprise from start to finish." See Gonzales, 539 F.2d at 1239-40. The prison authorities neither devised the plan to escape nor provided the weapons used in the escape. They did not facilitate access to the truck nor did they authorize its use. We therefore find that the district court was correct in ruling, as a matter of law, that the conduct of the prison authorities was insufficient to constitute grounds for dismissal because of outrageous government conduct.

2. Discovery Requests.

The district court denied three discovery requests of appellants Johnson and Sears for material to be used to support their motion to dismiss. The requests were for the identity of a government informant, the substance of any communication of such confidential informant, the identity of persons to whom such information was relayed, records concerning prison security measures, and other information regarding prison authorities' prior knowledge of the escape plan.

The district court took appellants' discovery motions under submission. The government responded to these motions and provided the court, in camera, with security-sensitive information concerning Bureau of Prison security procedures and informant information. The government only opposed appellants' requests for informant information and prison security measures. The district court found that the informant information and the security-sensitive information about escape prevention measures were not sufficiently material to the appellants' case to warrant putting inmate safety and prison security in jeopardy. Appellants contend that the district court erred in denying their discovery motions.

The scope of discovery is within the discretion of the district court. We review a district court's discovery ruling for abuse of discretion. United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984); United States v. Duncan, 693 F.2d 971, 979 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983).

The district court correctly balanced the competing interests in reaching its discovery ruling in the present case. See United States v. Mills, 641 F.2d 785, 790 (9th Cir.), cert. denied, 454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d 221 (1981); United States v. Lanci, 669 F.2d 391, 393 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982). After reviewing the disputed evidence in camera, the court concluded that the information sought to be discovered was not sufficiently material to overcome the government's compelling interests in inmate safety and prison security. The district court, therefore, properly exercised its discretion by considering the competing interests and denying the discovery requests here at issue.

3. Duress Defense.

Appellant Johnson indicated to the government that he contemplated presenting a duress defense to the escape charge. The government moved in limine to preclude the defense unless Johnson could make a minimal showing of a valid duress defense. ² After considering Johnson's offers of proof, the district court granted the government's motion in limine.

Johnson contends that his offers of proof were sufficient to raise a factual dispute as to each element of the duress defense, and that, therefore, his defense should have been heard at trial.

Johnson submitted oral and written offers of proof. At a pretrial hearing, he testified in camera, under oath, that when he initially declined to participate in the planned escape, another inmate threatened him by putting a knife to his neck and chest. He further stated that appellant Sears told him that if he refused to drive the escape truck, he would be killed. Once forced inside the truck, Johnson testified that he "tried to jam the gears on the truck, tried to stop the truck from running, and [appellant Sears] hit [him] in the back of the...