Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

No. 87-5270.

United States Court of Appeals, Ninth Circuit.

Before PREGERSON and DAVID R. THOMPSON, Circuit Judges, and PAUL G. ROSENBLATT, District Judge^** .

MEMORANDUM^* 

Patricia Martinez appeals her conviction for conspiracy to distribute cocaine and possession with intent to distribute cocaine. Martinez's conviction was entered upon her conditional plea of guilty to two counts of a nine-count superseding indictment. She entered the plea after her motions to suppress evidence and dismiss the indictment were denied following an evidentiary hearing.

On appeal, Martinez contends that statements she made while she was hospitalized in a drug rehabilitation center, together with evidence obtained as a result of those statements, should be suppressed because the government allegedly infringed her right to privacy and violated the fourth amendment. She also argues the government's conduct was outrageous and violated her right to due process under the fifth amendment. Finally, she contends she was the victim of vindictive prosecution. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

The FBI began an investigation of Martinez for narcotics trafficking in December 1986, following the arrest of Marta Simpson who identified Martinez as her cocaine source. Simpson agreed to cooperate with the government. The government learned from Martinez's boyfriend that Martinez was a patient at Cedars Sinai Hospital where she was being treated for a painful back condition. On January 20, 1987 FBI Agent Miller and Marta Simpson met with Martinez at Cedars Sinai. Martinez agreed to provide Agent Miller with a one-ounce sample of cocaine and to arrange a further delivery of a kilogram of cocaine.

Two days later, Martinez paged Miller on his beeper and asked him to come to see her in the hospital where she would supply him with the one-ounce sample. In response to this invitation, Miller visited Martinez in the hospital and bought the sample for $1,000. After this transaction, Miller tried to contact Martinez to arrange the purchase and delivery of the kilogram of cocaine they had discussed during their January 20 meeting. Simpson learned Martinez had been transferred to the Chemical Dependency Unit (drug treatment center) at Cedars Sinai. Miller visited Martinez on January 29 while she was in the center. He met her at the nurse's station. She asked Miller to accompany her to her room. There they discussed the kilogram drug transaction. Martinez stated that it had been arranged and would occur after she left the hospital. Martinez claims she was mentally impaired during this meeting because she was suffering from the effects of her withdrawal from drugs. Her physician stated in a declaration that Martinez was at the peak of withdrawal at the January 29 meeting, when her resistance to enticements from the drug world would have been at its lowest. Miller stated that Martinez appeared coherent and lively. The district court accepted Miller's testimony, and found Martinez was not mentally impaired.

On February 4, 1987 Agent Miller twice spoke with Martinez on the phone. She was still in the drug dependency unit, and said she would remain there for about one more week. She stated she would contact her suppliers to discuss the kilogram transaction. She also stated she wanted to handle the sale herself because she needed the money. Miller told Martinez he would wait to buy the cocaine until Martinez had been released from the hospital. He also told her he did not want her to leave the hospital early.

Martinez left the hospital in February. In March, Miller met with her on two occasions to try to finalize the purchase of the kilogram of cocaine they had been discussing, but no delivery was made. Then on April 13, 1987 Miller and Martinez met again. On this occasion Martinez brought Miller to the parking lot of her apartment building. There they met an individual named "Armando," later identified as Ulises Garcia, who had been with Martinez during one of the earlier meetings in March. Martinez and Garcia directed Miller to a box in some bushes. The box contained approximately one kilogram of cocaine. Martinez and Garcia were then arrested.

Initially, Martinez was indicted on five counts. The counts were for conspiracy (1 count), possession with intent to distribute and distribution of the one-ounce sample on January 22 (2 counts), and possession with intent to distribute and distribution of the kilogram on April 13 (2 counts). The government offered to drop three of these charges if Martinez would plead guilty to the conspiracy count and to one of the counts relating to the April 13 kilogram transaction. The assistant United States attorney told Martinez's counsel that if Martinez did not accept this plea offer, the government would seek a superseding indicting which would add four more counts of possession with intent to distribute and distribution of cocaine pertaining to two 1986 transactions in which, according to the government, Martinez had supplied cocaine to Simpson and to a person named O'Rourke. Martinez did not accept the plea offer, because she believed she had a good defense to the charges based upon her contention that she had been entrapped and that the government's conduct was outrageous. The superseding indictment was then obtained. Four counts relating to the 1986 events were added.¹  The district court concluded that the assistant United States attorney's motivation for seeking the superseding indictment was not to penalize Martinez for not pleading guilty, but, among other things, to enable the government, in its case-in-chief, to offer evidence of the 1986 deliveries of cocaine as part of a criminal scheme by which Martinez had made the 1987 deliveries.

Martinez contends the government acted outrageously and violated her fifth amendment due process rights by entering the drug treatment center to arrange a narcotics transaction. Whether the government engaged in outrageous conduct in violation of Martinez's due process rights is a question of law, reviewable de novo. United States v. Bogart, 783 F.2d 1428, 1431 (9th Cir. 1986); United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983).

An outrageous conduct defense focuses on the acts of law enforcement officials. A constitutional violation occurs if the government's conduct is so outrageous that it "shocks the conscience." Bogart, 783 F.2d at 1438; United States v. So, 755 F.2d 1350, 1353 (9th Cir. 1985); Ramirez, 710 F.2d at 539; United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965 (1977). Conduct is outrageous when the government completely fabricates a crime, United States v. O'Connor, 737 F.2d 814, 818 (9th Cir. 1984), cert. denied, 469 U.S. 1218 (1985), or uses unwarranted mental or physical coercion. Bogart, 783 F.2d at 1438; see also Rochin v. California, 342 U.S. 165 (1952); Greene v. United States, 454 F.2d 783 (9th Cir. 1971); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). However, the government may use "artifice and stratagem to ferret out criminal activity." Bogart, 783 F.2d at 1438 (quoting Sorrells v. United States, 287 U.S. 435, 441 (1932)). It is also acceptable for a government agent to approach a person already engaged in or contemplating criminal activity. Bogart, 783 F.2d at 1438; O'Connor, 737 F.2d at 817-18. We have stated that the outrageous conduct defense is narrow. United States v. Stenberg, 803 F.2d 422, 429 (9th Cir. 1986); United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982); Ryan, 548 F.2d at 789.

The government's conduct in this case was not outrageous. While Martinez was at Cedars Sinai in the regular part of the hospital being treated for back pain, she willingly discussed making a drug deal with Miller. It was Martinez who contacted Miller and asked him to come to the hospital to buy the one-ounce sample. While this occurred before Martinez was transferred to the drug treatment center, it was part of a series of continuing discussions leading to the sale of the kilogram of cocaine. When Miller visited Martinez in the drug treatment center, he did so to carry on these ongoing discussions. He met Martinez at the nurse's station. She invited him to her room where they discussed the kilogram transaction further. Miller did not try to make the buy of cocaine from Martinez while she was in the treatment center. Nor did he try to cut short her treatment there. He told her to stay until her treatment was concluded. She left the treatment center in February, met with Miller twice during March concerning the delivery of the kilogram of cocaine, and finally made the delivery in April.

There is no evidence in this case which suggests that Miller fabricated the crime, O'Connor, 737 F.2d at 818, or used undue mental or physical coercion. Bogart, 783 F.2d at 1438. Nor is there any evidence that the government's conduct shocks the conscience. Id.; So, 755 F.2d at 1353.

The district court properly rejected Martinez's outrageous government conduct claim.

Martinez contends that federal regulations require written authorization for all visitors to the drug treatment center. 42 C.F.R. Secs. 2.1-2.67.1 (1986). She maintains that oral consent to a visit is insufficient under the regulations, and therefore her oral consent to Miller's presence on January 29, 1987 was invalid. Thus, she argues, her privacy was invaded and her fourth amendment rights were violated when Miller met with her in the drug treatment center. This violation, she contends, requires suppression of the statements she made at the January 29 meeting, as well as all evidence obtained thereafter as the "fruits" of these statements.

We review denial of a motion to suppress evidence de novo. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Evidence will be suppressed when it is gathered in violation of an individual's fourth amendment rights. Wong Sun v. United States, 371 U.S. 471 (1963); Weeks v. United States, 232 U.S. 383 (1914). Verbal statements, as well as physical evidence, can be suppressed as fruits of illegal action. Wong Sun, 371 U.S. at 485-86. A search performed pursuant to valid consent, however, complies with constitutional requirements, and evidence gathered during the search is admissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1972); see also Lewis v. United States, 385 U.S. 206 (1966).

Federal regulations dictate that a patient's records at a drug treatment center must remain confidential, unless the patient consents in writing to their disclosure, or a court order is obtained. 42 U.S.C. § 290ee-3 (West Supp.1988). The purpose of the regulations is to enhance the quality of treatment systems and to protect the patient's right to privacy. 42 C.F.R. Sec. 2.4 (1986). The regulations facilitate the work of the treatment centers by assuring patients their history of drug abuse will not become public knowledge. Joint Explanatory Statement of the Committee of Conference on Pub. L. No. 92-255, Drug Abuse Office and Treatment Act of 1972, 1972 U.S.Code Cong. & Admin.News 2072.

Martinez contends that written consent for visitors is required under the statute and/or the CFR regulations. We disagree. The rules focus exclusively on patient records. Martinez has a protected interest in the confidentiality of her records, not in her person. Miller did not rely on any records in his investigation of Martinez. There is no law restricting the access of government agents to the premises of a treatment center to conduct an investigation, so long as they do not pose as employees or patients. See 42 C.F.R. Sec. 2.19-1 (1986). A treatment center is not meant to provide a safe haven for criminals who wish to avoid investigation by law enforcement officials. Here, Martinez consented to meet with Miller when she invited him to her room at the drug treatment center. The issue, therefore, is whether Martinez's oral consent was valid. Martinez contends her oral consent was invalid because she was mentally incapacitated on January 29 due to her withdrawal from drugs.

Consent must be voluntary, in light of all the surrounding circumstances, in order to be effective. Schneckloth, 412 U.S. at 227. The trial court's finding of voluntary consent will not be overturned unless it is clearly erroneous. United States v. Al-Azzawy, 784 F.2d 890, 895 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986); United States v. Faherty, 692 F.2d 1258, 1260 (9th Cir. 1982).

The district court found that at the January 29 meeting "Martinez appeared coherent and lively, although bored." She was able to discuss the kilogram sale. The court "fully accept [ed] the testimony of the government witness that [Martinez's] mental faculties were not impaired" during this meeting. These findings are not clearly erroneous. Martinez's consent was voluntary and valid. The motion to suppress her statements at the January 29 meeting and the fruits of those statements was properly denied.

Martinez argues that the superseding indictment filed after she refused to accept the government's plea offer constitutes vindictive prosecution. The standard of review for vindictive prosecution is unsettled. United States v. Martinez, 785 F.2d 663, 665 (9th Cir. 1986); United States v. Gann, 732 F.2d 714, 724 (9th Cir.), cert. denied, 469 U.S. 1034 (1984). Some courts apply the abuse of discretion standard, and others the clearly erroneous standard. Gann, 732 F.2d at 724. Still others apply de novo review. Martinez, 785 F.2d at 666. Even applying de novo review, we conclude the district court did not err in denying the motion to dismiss.

Vindictive prosecution occurs when a defendant exercises a constitutional right, and the government responds by increasing the severity of the charges. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); United States v. Shaw, 655 F.2d 168, 171 (9th Cir. 1981); United States v. Wilson, 639 F.2d 500, 502 (9th Cir. 1981). The defendant has the initial burden to show an appearance of vindictiveness. United States v. DeTar, 832 F.2d 1110, 1112 (9th Cir. 1987); Gann, 732 F.2d at 724; Shaw, 655 F.2d at 171. An improper vindictive motive is presumed when the government increases charges after a legal right is exercised. United States v. Goodwin, 457 U.S. 368, 373 (1982). There is no presumption of vindictive prosecution, however, when the government increases charges before trial when plea bargaining fails. Goodwin, 457 U.S. at 381-83; Bordenkircher, 434 U.S. at 363-65; United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir. 1984).

In Bordenkircher, the Court held there was no constitutional violation when the prosecutor threatened during plea bargaining to bring more serious charges if the defendant did not plead guilty. Bordenkircher, 434 U.S. at 364-65. The Court stated the prosecutor was merely doing his job by encouraging the defendant to plead guilty. Id. Furthermore, the Court has noted there is no presumption of vindictiveness when the prosecutor acts before trial, because he may uncover new evidence, or reassess the extent of the charges available. Goodwin, 457 U.S. at 381.

Under Bordenkircher and Goodwin, Martinez was not the victim of vindictive prosecution. The Assistant U.S. Attorney used the additional charges as a bargaining tool to encourage Martinez to plead guilty, as occurred in Bordenkircher. We refuse to presume that vindictive prosecution is present in cases where additional charges are filed before trial. United States v. Stewart, 770 F.2d 825 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986); Heldt, 745 F.2d 1275; United States v. Gallegos-Curiel, 681 F.2d 1164 (9th Cir. 1982); United States v. Allsup, 573 F.2d 1141 (9th Cir.), cert. denied, 436 U.S. 961 (1978).

AFFIRMED.