USA v. Haynes

Decision Date06 December 1999
Docket NumberNos. 98-30221,98-30240,s. 98-30221
Citation216 F.3d 789
Parties(9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. GREGORY HAYNES, Defendant-Appellant-Cross-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. JAMES DENTON, Defendant-Appellant-Cross-Appellee
CourtU.S. Court of Appeals — Ninth Circuit

Allen M. Ressler, Browne & Ressler, Seattle, Washington, for defendant-appellant, cross-appellee Gregory Lee Haynes.

Michael C. Nance, Seattle, Washington, for defendantappellant, cross-appellee James Denton.

Karin B. Hoppmann, United States Department of Justice, Washington, D.C., for plaintiff-appellee, cross-appellant United States.

Appeals from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. Nos. CR-97-00282-TSZ, CR-97-00282-1-TSZ

Before: Thomas M. Reavley,1 Stephen Reinhardt, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge Reinhardt

MCKEOWN, Circuit Judge:

At the conclusion of a three-year investigation, Gregory Haynes ("Haynes") and James Denton ("Denton") were arrested and indicted for manufacturing marijuana, conspiring to manufacture marijuana, and conspiring to commit money laundering. During the investigation, law enforcement relied on information provided by Dale Fairbanks ("Fairbanks"), a private investigator who worked for an attorney who represented Haynes and Denton during the initial phase of the investigation.

Claiming government misconduct based on the government's reliance on Fairbanks as an informant, Haynes and Denton filed a motion to dismiss indictment, or alternatively, to suppress evidence as well as a motion to suppress fruits of searches that were conducted pursuant to search warrants. After the district court refused to dismiss the indictment or to suppress fruits of searches but partially granted their alternative motion to suppress evidence, Haynes and Denton entered conditional guilty pleas to the marijuana conspiracy and money laundering counts of the indictment. They now appeal the denial of their motions to dismiss the indictment and to suppress fruits of searches. The government cross-appeals the sentence calculation, specifically, the court's decision to exclude 2,200 lawfully seized marijuana plants from the statutory minimum calculation.

At issue in this appeal are: 1) whether the government's use of Fairbanks as an informant rises to the level of outrageous government misconduct warranting dismissal of the indictment; 2) whether probable cause supports the issuance of the search warrants; and 3) whether, in order to punish government misconduct, the district court had the authority to exclude lawfully seized marijuana plants from the quantity calculus for purposes of determining the applicable mandatory minimum sentence. We have jurisdiction under 28 U.S.C. S 1291, and we affirm the district court's refusal to dismiss the indictment as well as its denial of the motion to suppress fruits of searches, but reverse on the sentencing issue.

BACKGROUND

To understand the tangled web involving the various marijuana grows; Haynes and Denton and their attorney, Mark Mestel; the investigator-turned-informant, Fairbanks; and the attendant law enforcement investigation, we outline this complex story in some detail.

The Marijuana Grows

Haynes and Denton were involved in two different marijuana grows: one in Stanwood, Washington, and another in Warden, which is in eastern Washington. On May 13, 1994, firefighters discovered some 2,200 marijuana plants at a Stanwood farm, when a fire broke out in the pole barn where the plants were kept. They contacted law enforcement authorities, who obtained a search warrant, seized the plants, and initiated a criminal investigation. One of the vehicles on the farm, a cab cargo van, was traced to a company owned and operated by Haynes. In September 1994, the government instituted civil forfeiture proceedings relating to the Stanwood real property and various items of personal property including the Haynes vehicle.

It is undisputed that the Stanwood plants were lawfully seized and that the seizure had no connection to Fairbanks. At the time that the authorities seized these plants, Fairbanks knew nothing about the case, as it was the discovery of the Stanwood grow that prompted Haynes and Denton to hire Mestel, who then asked Fairbanks to serve as his private investigator on the case. At no time did Haynes or Denton move to suppress the 2,200 plants found at Stanwood.2

The Warden grow was established prior to the Stanwood grow underneath some alfalfa fields on Denton's Warden property; it was dismantled shortly after the discovery of the Stanwood grow because Haynes and Denton were concerned about the possibility of criminal investigation. Authorities first learned that there might be a grow at Warden when, in the summer of 1995, Fairbanks intimated to a county prosecutor that another grow existed in the eastern part of the state. In October 1995, Haynes disclosed the shutdown grow to Fairbanks, specifically requesting that he refrain from telling Mestel anything about the grow. About the same time, Fairbanks, who by then had developed a personal relationship with Haynes, began assisting Haynes and Denton with their marijuana business. For example, Fairbanks scouted possible locations for new marijuana grows, obtained some automatic weapons for Haynes, and purchased supplies for the Warden grow. All this assistance was provided without Mestel's knowledge, and was independent of Fairbanks's work as Mestel's investigator.

In January 1996,3 Fairbanks met with law enforcement officials, provided information about the Warden grow and about purported marijuana deliveries to Mestel, and signed on as an informant, a role he filled until Haynes and Denton were arrested in the summer of 1997. At some point, apparently of his own accord, Fairbanks falsely told Haynes that the criminal investigation sparked by the discovery of the plants at Stanwood had been closed. Haynes thereafter restarted the Warden grow, at least as of April 1997 and possibly some months earlier. Fairbanks informed law enforcement officials of this development in April 1997 and subsequently led them to the area of the Warden property where the underground grow was located, at which point agents detected marijuana. On returning to the property with a search warrant, they discovered some 780 marijuana plants.

Motions to Dismiss or Suppress

Haynes and Denton filed motions seeking dismissal of the indictment or alternatively, suppression of evidence obtained in violation of the attorney-client privilege or the Constitution. In sum, Haynes and Denton charged the government with a "planned and deliberate invasion" of their confidential relationship with Mestel by using Fairbanks as a paid informant. After a five-day evidentiary hearing, the district court made extensive findings and then denied their request to dismiss the indictment. With regard to Stanwood, the court found that Haynes and Denton conspired to obstruct justice in the civil forfeiture action and that related communications with Mestel were not shielded by the attorney-client privilege. The court agreed, however, to suppress evidence of privileged communications about the criminal investigation of the Stanwood grow. Specifically, the court suppressed:

all evidence pertaining to the communications between Mestel and Haynes, or among Mestel, Haynes and Fairbanks, concerning the possible criminal investigation of the Stanwood property which occurred during the period of Mestel's representing Haynes.

The court found that the attorney-client relationship between Haynes and Mestel was over, at the latest, by the end of 1995 and that the relationship between Denton and Mestel had ended even earlier, in July 1995.

Commenting in detail on the government's interaction with Fairbanks, the district court concluded that "the government was vigilant about the attorney-client privilege and established safeguards so as not to learn facts that could be subject to privilege." Recognizing, however, that Fairbanks had relayed certain information to the government in violation of the attorney-client privilege, the court reiterated that Fairbanks's testimony would be suppressed at trial "as it relates to anything he learned from Haynes prior to January 1, 1996 in connection with the criminal investigation of the Stanwood property . . . ."

In another motion to suppress evidence, Haynes and Denton sought to suppress the 780 marijuana plants seized pursuant to a search warrant issued for the Warden property. Denying the motion, the district court found that probable cause supported the warrant "even if all the information provided by Fairbanks . . . involving transactions and communications" subject to suppression were excised.4 The court alternatively held that almost all of the information provided by Fairbanks and offered in support of the warrant requests was covered by the crime-fraud exception to the attorneyclient privilege or obtained after the attorney-client relationship had ended. As the court had found in setting the contours for its ruling on the combined motion to dismiss or suppress, Mestel had ceased representing either Haynes or Denton in connection with the Stanwood criminal investigation by the end of 1995.

Following these rulings, Haynes and Denton pled guilty to the marijuana conspiracy and money laundering counts of the indictment, admitting their involvement in the Stanwood and Warden grows and specifically acknowledging responsibility for a quantity of marijuana plants between 1,000 and 4,000. The plea agreement stated that "[t]he parties agree that the amount of...

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