United States v. Valdovinois-Valdovinois

• Citation: 588 F. Supp. 551
• Decision Date: 15 February 1984
• Docket Number: No. CR-83-0711 RFP.,CR-83-0711 RFP.
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Clemente VALDOVINOIS-VALDOVINOIS, Defendant.

588 F. Supp. 551

UNITED STATES of America, Plaintiff, v. Clemente VALDOVINOIS-VALDOVINOIS, Defendant.

No. CR-83-0711 RFP.

United States District Court, N.D. California.

February 15, 1984.

Larry Gallagher, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Carlo Andreani, San Francisco, Cal., for defendant.

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

The motion before the court raises two distinct but related questions: (1) Did the government engage in "outrageous conduct" by advising Mexican citizens — through the use of an undercover telephone operation known as a "cold line" — that it was appropriate to enter the United States without immigration papers, for the sole purpose of tracking these Mexican citizens in hopes of arresting their transporters; and (2) if this conduct was "outrageous", were the defendant's due process rights violated when his arrest for transporting illegal aliens occurred solely as a result of information obtained through the "outrageous" conduct.

The court concludes that the government's conduct was indeed outrageous in advising Mexican citizens to enter the United States illegally. The court also concludes that the government is not entitled to benefit in any way from such conduct. Thus, the defendant's arrest, which was a direct result of this impermissible conduct, is derivatively barred. Consequently, the indictment in this case must be dismissed.

I. FACTS

The defendant, Clemente Valdovinos-Valdovinos ("Valdovinos") has been indicted on three counts: (1) transporting illegal aliens, 8 U.S.C. § 1324(a)(2); aiding and abetting, 18 U.S.C. § 2; and conspiracy, 18 U.S.C. § 371. He moves to dismiss the indictment against him on the sole ground that the government's conduct in this case was so outrageous that his constitutional right to due process was violated.

The government conduct at issue commenced long before there was any direct government contact with Valdovinos. The direct government activity in this case began at approximately 8:00 AM on October 31, 1983 when the San Francisco District Anti-Smuggling Office of the Immigration and Naturalization Service ("INS") received a collect telephone call from Tijuana, Mexico. The caller identified himself to Agent Steven Abla as "Elmor Rodriquez."¹

Rodriquez did not call the normal or publicly published telephone number of the San Francisco INS office. Instead, the INS received his call on what is known as a "cold line", an undercover telephone operation set up and staffed by INS agents. These undercover INS agents pose as American employers seeking to hire illegal aliens. The purpose of this cold line, according to testimony offered by Agent Abla, is to make contact with persons who may want to enter the United States illegally. After this initial contact is made, the undercover INS agents offer to reimburse the smuggling expenses incurred by the aliens and to supply them with employment. Once the individuals enter the United States and rendevous with the undercover agents to claim their expenses and jobs, the agents arrest those in charge of transporting the aliens and the aliens themselves are deported.

There is apparently little dispute over the general operations of the cold line itself. Agent Abla conceded that there are no written guidelines or procedures established by the INS that structure the use of the cold line. No tape recordings of the incoming calls are made; no transcripts of the conversations are ever compiled. Apparently, the INS does not even keep a formal log of all the calls it receives. Abla also testified that the INS has no coherent policy as to when or how it disseminates the telephone number of the cold line. Abla's testimony demonstrated that the use of this cold line has simply "evolved" over recent years without any formal policy guidance.

The substance of the October 31 call between Rodriquez and Abla is disputed, although the court is able to make factual findings as to what transpired. Abla's recollection of the call is that Rodriquez first stated that he planned to enter the United States illegally and only then were there any discussions about the reimbursement of smuggling expenses. His testimony, although internally contradictory in places, essentially maintained that he agreed to pay the fees only after Rodriquez expressly stated his intent to enter the United States illegally.

Rodriquez recalled the conversation differently.² He testified that he told Abla (whom he believed to be an American employer) that he wanted to come to the United States, but that he and an unnamed accomplice had no immigration papers.³ After telling Abla that he had no immigration papers, Rodriquez stated that he asked Abla whether he could enter the United States without them. According to Rodriquez, Abla assured him that the lack of papers was not a problem. Rodriquez also testified that had Abla not made this statement, neither he nor his compatriot would have entered the United States illegally.

Rodriquez also testified that after Abla affirmed that the lack of immigration papers posed no problem, Abla stated that he would be willing to pay $700 in smuggling fees once Rodriquez and his friend reached San Francisco. At this point in the conversation, Abla told Rodriquez to contact him at the cold line telephone number after entering the United States.

On November 2, 1983, at approximately 8:00 in the morning, an individual claiming to be calling on behalf of Rodriquez placed a collect call to the cold line number. This call originated in Los Angeles. The caller told Abla that he had smuggled two individuals into the United States and would transport them to San Francisco for $700. Abla apparently agreed to this arrangement and instructed the caller to contact him again at the cold line upon arrival in San Francisco.

Later that same morning, Abla received another call from Rodriquez. Rodriquez stated that there were now three illegal aliens and inquired whether Abla would pay an additional $350 smuggling fee for the third individual.⁴ Abla told Rodriquez to tell the man who made the second call — the man acting as the transporter — to telephone the cold line himself.

Approximately thirty minutes later, this individual called the cold line. Abla and the caller discussed the third alien and Abla agreed to pay the additional smuggling fee. Further plans were made regarding delivery in San Francisco.

The next morning, November 3, the final call was received on the cold line. The caller informed Abla that he had arrived in San Francisco with the aliens. Abla arranged to meet the caller in Mission Dolores Park in San Francisco. Accompanied by other INS agents, Abla went to Mission Dolores Park where he made contact with the aliens (now four in number) and the two men transporting them. After a brief conversation during which Abla offered, and the two transporters accepted, $350 as partial payment for the smuggling expenses, the INS agents arrested the defendant and another man (Jorge Nunez-Ceja) for transporting illegal aliens. The INS also took the four illegal aliens being transported by Valdovinos and Nunez-Ceja into custody.

II. OUTRAGEOUS GOVERNMENT CONDUCT

The Supreme Court first raised the concept of police conduct so outrageous as to void any conviction derived from it in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973):

We may 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. at 1642-43.

Although a plurality of the Supreme Court expressed some disapproval of this concept in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Ninth Circuit has explicitly held that the concept still survives. United States v. Prairie, 572 F.2d 1316, 1319 n. 2 (9th Cir.1978). See also United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983). Thus, for the purposes of this motion, the court must assume that no government prosecution can be maintained if it is established that the government engaged in outrageous conduct.

A motion to dismiss based on outrageous government conduct is not the same as an entrapment defense.⁵ Although frequently classified as "close relatives", they do differ in important ways. United States v. Wylie, 625 F.2d 1371, 1377 (9th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). Outrageous government conduct is a question of law. As such, it is an issue reserved for decision by the court, while entrapment must be presented to the jury. Id. at 1378. See also United States v. McQuin, 612 F.2d 1193, 1196 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980); United States v. Prairie, 572 F.2d at 1319; United States v. Gonzales, 539 F.2d 1238, 1240 n. 1 (9th Cir.1976).⁶

Furthermore, unlike entrapment, indicia of a defendant's predisposition are irrelevant to the issue of outrageous government conduct. As the Ninth Circuit concluded in United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976), "U.S. v. Hampton 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 left open the possibility that the conviction of a predisposed defendant may be reversed when the government's involvement in the criminal scheme reaches such an outrageous level as to violate due process." As the Ninth Circuit recently stated, "a defendant barred from claiming entrapment may still invoke the outrageous government conduct defense if he was subjected to police conduct repugnant to the American system of criminal justice." United States v. Lomas, 706 F.2d at 891. Thus, an analysis of outrageous government conduct focuses solely on the behavior of the government, not on the activities of ...