Unpublished Disposition, 872 F.2d 431 (9th Cir. 1988)

MEMORANDUM^** 

Juergen Stengel appeals his conviction for threatening to assault a U.S. official in violation of 18 U.S.C. § 115. The grounds for reversal Stengel alleges are that (1) the activities of Internal Revenue Service ("IRS") officers were so outrageous as to violate due process rights and (2) Stengel's statement did not constitute a threat. We affirm.

BACKGROUND

In September 1987, Juergen Stengel received an IRS contact notice regarding $6,000 due in back taxes resulting from an audit of his 1983 tax return. Stengel, in compliance with the notice, contacted the IRS at the telephone number provided on the notice. IRS Collection Agent Dale Cobb answered the call. After verifying Stengel's social security number, Cobb began discussing the status of Stengel's delinquent account. (R.T. 20). During the conversation, Stengel became increasingly agitated. Stengel finally told Cobb that " [i]f anyone comes out to try to get my horses, there will be the biggest shootout you have ever seen." (R.T. 20).

Cobb notified his supervisor of Stengel's statement, who in turn notified IRS' Internal Security Division. (R.T. 21-22). On October 8, 1987, ten days after his call to Cobb, Inspectors Tomaw and Richardson went to Stengel's home to determine whether Stengel's statement represented a true threat or whether the statement was simply the result of an emotional outburst ("threat assessment interview"). (R.T. 29-31). During the interview, Stengel admitted he threatened Cobb on the phone. (R.T. 44). When Inspector Tomaw asked if he really meant to threaten Cobb, Stengel said, "Yes. I meant it. I have nothing to lose." (R.T. 44). Inspector Richardson then asked Stengel if he would attempt to harm any IRS agents who might come to seize his property. Stengel replied that he would shoot anyone who did. (R.T. 34).

On December 14, 1987, the grand jury returned a two count indictment against Stengel, alleging two separate violations of 18 U.S.C. § 115, threatening to assault a U.S. officer. At the conclusion of the government's case, Stengel moved for judgment of acquittal on both counts. The court granted the motion for judgment of acquittal on count two, stating that count two did not represent a separate criminal act, but rather part of Stengel's overall conduct as charged in count one of the indictment. (R.T. 52-53). The court also denied a subsequent motion for judgment of acquittal on count one of the indictment made after the defense rested. (R.T. 75-77).

On June 2, 1988, the jury convicted Stengel on count one of the indictment. On July 25, 1988, the court sentenced Stengel to three years probation and fined him $500 and a $50 special assessment fee.

ANALYSIS

I. Whether the district court erred in denying Stengel's motion to dismiss?

The district court denied Stengel's motion to dismiss the indictment on the ground of outrageous government conduct. The district court found that 1) Stengel failed to support his allegations of government misconduct with any evidence; and 2) Stengel failed to demonstrate a causal relationship between the alleged government misconduct and his threat to assault Cobb.

On appeal, Stengel contends that the district court should have granted a motion to dismiss his indictment because the IRS' audit and collection activities were so outrageous as to violate his due process rights.¹  The issue whether the government's conduct was so outrageous as to violate a defendant's due process rights is reviewed de novo. U.S. v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986).

We have recognized outrageous government conduct as a defense. In Greene v. United States, 454 F.2d 783 (9th Cir. 1971), the court reversed a conviction for possession of an unregistered distilling apparatus, sale of distilled spirits without a stamp, and conspiracy, because the government helped the defendants to re-establish and maintain production of bootlegging operations after the defendants had been previously convicted of these crimes. We have also discussed this defense in the context of other criminal conduct. See United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983) (involving convictions for transporting stolen aircraft and the importation and possession of marijuana); see also United States v. Ryan, 548 F.2d 782 (9th Cir. 1976) cert. denied, 430 U.S. 965 (1977) (involving convictions for violating the Travel Act and for aiding and abetting in the commission of a crime against the United States); United States v. So, 755 F.2d 1350 (9th Cir. 1985) (involving seven counts of currency violations and conspiracy in connection with a money laundering operation).

The defense of outrageous government conduct is not often successfully invoked. United States v. Ryan, 548 F.2d 782 (9th Cir. 1976) cert. denied, 430 U.S. 965 (1977) (the defense of outrageous government conduct is applicable "only when the government's conduct is so grossly shocking and outrageous as to violate the universal sense of justice.") Such misconduct is not limited to cases where law enforcement conduct involves extreme physical or mental brutality, but also extends to those situations where the crime is manufactured by the government. United States v. Bogart, 783 F.2d 1428, 1436-1438 (9th Cir. 1986) (recognizing standing to contest defendant's conviction of conspiracy to possess cocaine with intent to distribute on the grounds of outrageous government conduct because government planted informant and engineered an unlawful cocaine transaction). The focus of this defense is not on the state of mind of the defendant, but on the conduct of the government agents. U.S. v. So, 755 F.2d 1350, 1353 (9th Cir. 1983).

Stengel contends that the IRS' actions constitute "grossly shocking" government misconduct. He argues that the IRS agents acted brutally by cajoling, harassing, and badgering Stengel to make payment on a tax debt that he contends he does not owe. This brutality allegedly caused him to become so exasperated that he said some harsh words. As evidence of the IRS's brutality, Stengel produces a mailed IRS collection notice and offers his testimony regarding the phone conversation between Cobb and Stengel. During the conversation, Cobb asked when $6,000 in back taxes would be received. Stengel also offers his testimony regarding the threat assessment interview by the two IRS agents.

Stengel's evidence falls short of extreme misconduct required by our case law. The mailed IRS notice and the IRS agents' conduct during the telephone conversation and threat assessment interview fall well within the scope of proper IRS procedure. Cobb, a trained incoming call officer in the IRS' past due accounts department, responded accurately to Stengel's inquiries regarding his past due notice. Cobb also demanded payment on Stengel's balance due, conduct not only within IRS procedure, but required of his position as a past due accounts officer. (R.T. 16-17). In regard to the threat assessment interview, both IRS officials, who are trained Internal Security officers, appeared to act in accordance with IRS procedures. Inspector Tomaw, who also serves as an instructor in the IRS training classrooms, explained to Stengel the reason for their visit and communicated the alleged statements made by Stengel to Cobb. (R.T. 44). The officers then asked for and received a confirmation of the statements made by Stengel. (R.T. 44). The threat assessment interview also took place after Stengel made his threat to Cobb. Therefore, the interview could not have caused Stengel to threaten Cobb.

In the present case, Stengel's indictment derives from a statement he made during a procedurally correct conversation with an IRS official regarding payments due from an IRS audit. Stengel provides no evidence of government misconduct and shows no causal connection between any alleged extreme government misconduct and his remarks to Cobb.

II. Whether the district court erred in denying Stengel's motion for acquittal?

The district court denied Stengel's motion for judgment of acquittal on count one of the indictment for threatening to assault a United States official. The court held that "the evidence supported an inference that the statements that were made, if believed, were made with the intent to intimidate Cobb, who was engaged in the performance of his duty, namely to collect unpaid taxes."

Stengel argues that the district court improperly denied motions for judgment of acquittal because his statement to Cobb does not meet two of the elements of 18 U.S.C. § 115 (1988) (threatening to assault a U.S. official). Stengel states that the government failed to prove that 1) Stengel made a specific threat during the September 28, 1987 phone conversation between Stengel and IRS official Cobb; and 2) that Stengel's threat was directed specifically to Cobb. Stengel argues that, at best, the government established that Stengel expressed a vague threat which was directed against no one in particular.

We will affirm a denial of a motion for acquittal if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The elements necessary to prove a violation of section Sec. 115, threatening to assault agents and employees of the IRS, are 1) a threat to assault, 2) a United States official, 3) with the intent to impede, intimidate or interfere with such official while engaged in or on account of the performance of official duties.

Stengel contends that his threat was vague and did not, therefore, meet the threat element necessary for conviction under 18 U.S.C. § 115. Stengel cites United States v. Merrill as an example of a true threat. 746 F.2d 458 (9th Cir. 1983) (Defendant mailed letters which contained bloody depictions of President Reagan, the words "Kill Reagan," and live bullets that were glued to the letters and pointed at the pictures of President Reagan; convicted for violation of 18 U.S.C. § 278, threatening to assault or kill the President). Stengel's contention, however, is without merit. Stengel threatened that " [i]f anyone comes out to try to get my horses, there will be the biggest shooting spree you have ever seen." A reasonable trier of fact could conclude that the terms of Stengel's threat were sufficiently clear. See Roy v. United States, 416 F.2d 874, 876-877 (9th Cir. 1971) (Defendant's statement that he was going to "get" the President was found to be a sufficient threat; interpreting 18 U.S.C. § 278, threatening to assault or kill the President).

Stengel also contends that the threat was not directed to anyone specifically and therefore does not satisfy the second element of section 115. A reasonable trier of fact would likely believe, however, that the threat was directed toward Cobb. Stengel made his threat, " [i]f anyone comes out to try to get my horses, there will be the biggest shooting spree you have ever seen" to Cobb over the phone. The term "anyone" covers any IRS agent and therefore includes IRS agent Cobb.

In addition, Stengel's own statements contradict his contention that he did not direct the threat to Cobb. Inspectors Tomaw and Richardson both testified that during the threat assessment interview, they questioned Stengel as to whether he meant to threaten Cobb. Stengel said "Yes, I meant it. I have nothing to lose." (R.T. 44). The government also argues that although Stengel presumably did not know which IRS official he would speak to when he called regarding his payment notice, Stengel directed his threat toward Cobb only after Cobb demanded payment of Stengel's unpaid taxes. The evidence leads a reasonable trier of fact to believe that Stengel directed his threat toward Cobb.

AFFIRMED.