Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Carlos Amor Soler moved to dismiss his indictment due to what he contended was outrageous government conduct which he alleged precipitated the crimes with which he was charged. The district court denied the motion. Thereafter Soler entered a conditional guilty plea to distributing cocaine, in violation of 21 U.S.C. § 841(a) (1). A conviction was entered on this plea. Soler appeals. We affirm.

FACTS

Soler sold cocaine on at least two separate occasions to Robert Maeder, a government informant. Maeder had a contingency fee arrangement with the government pursuant to which he was paid only if drugs were seized. According to several witnesses, including Soler, Maeder smoked cocaine on numerous occasions, sometimes in front of Maeder's children. Meader also encouraged Soler to sell drugs to him. Soler contends the government's and Maeder's conduct was so outrageous that his indictment should have been dismissed.¹ 

DISCUSSION

Denial of a motion to dismiss an indictment based charges of outrageous governmental conduct is a question of law to be reviewed de novo, with factual findings reviewed under the clearly erroneous standard. United States v. Bonanno, 852 F.2d 434, 437 (9th Cir. 1988), cert. denied, 109 S. Ct. 812 (1989).

A criminal indictment will be dismissed if the conduct of law enforcement officers connected with the case is so grossly shocking as to violate the universal sense of justice. Bonanno, 852 F.2d at 437; United States v. Simpson, 813 F.2d 1462, 1464 (9th Cir.), cert. denied, 108 S. Ct. 233 (1987). Law enforcement conduct becomes constitutionally unacceptable either when government agents act brutally by using physical or psychological coercion or the agents engineer and direct the criminal enterprise from start to finish. Bonanno, 852 F.2d at 437; United States v. Emmert, 829 F.2d 805, 811 (9th Cir. 1987).

Here, there is no evidence that Soler was coerced into selling drugs to Maeder. Soler testified that Maeder had "talked him into" selling drugs but Soler also stated that his primary motivation for reentering the drug business was his recent unemployment. Neither did Maeder or any other government agent engineer the crimes for which Soler was indicted.

The government will not be found to have fabricated the crime of selling drugs where its role is only that of purchaser. See Emmert, 829 F.2d at 813 (government did not fabricate crime where government only on purchasing side of drug transaction). Here, the record indicates that government agent Maeder was nothing more than a particularly insistent purchaser of the cocaine Soler had available.

Soler argues that the fact Maeder smoked cocaine, particularly in the presence of small children, is shocking enough in and of itself to require dismissal of the indictment. However, courts have declined to dismiss criminal indictments because of a government agent's commission of nonviolent crimes performed without governmental approval or urging. Simpson, 813 F.2d at 1470 (government informant's activities of heroin dealing and prostitution while collecting evidence for FBI does not require reversal). See also United States v. Warren, 747 F.2d 1339, 1340-44 (10th Cir. 1984) (no reversal necessary where government inspector fabricated accidents and entered guilty pleas under false names in undercover operation aimed at insurance fraud by doctors and lawyers). Cf. United States v. Stenberg, 803 F.2d 422, 430-31 (9th Cir. 1986) (government agents' acts of illegally killing game while gathering evidence against poachers might require dismissal of charges under some circumstances, situation distinguishable from a government agent's purchase of contraband otherwise designed for the marketplace). Even if we assume the truth of Soler's allegations regarding the government's and Maeder's conduct, the district court did not err in refusing to dismiss the indictment.

AFFIRMED.