Unpublished Disposition, 927 F.2d 611 (9th Cir. 1985)

MEMORANDUM^** 

Robert Ralph D'Agostino appeals his judgment of conviction following a conditional guilty plea. He argues that the district court improperly denied his motion to dismiss the indictment for outrageous government conduct. The court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1982). The district court found excusable neglect in late filing and the appeal is considered timely. We affirm the district court's judgment.

BACKGROUND

On April 2, 1985, FBI undercover agent Robert Hamer met Robert D'Agostino. Kathy Mallory, an undercover Glendale police officer to whom Mr. D'Agostino had made romantic overtures, introduced Mr. D'Agostino to Mr. Hamer over lunch. Mr. Hamer represented himself as a narcotics dealer and businessman who owed money to members of the criminal group suspected of associating with Mr. D'Agostino. He represented that he needed Mr. D'Agostino's help to combat the group's pressure. Mr. D'Agostino indicated a willingness to help for a price. Two days later during further discussions, Mr. Hamer told Mr. D'Agostino that he could get him more money if Mr. D'Agostino could get him a source for cocaine. Mr. D'Agostino willingly responded and had 55.4 grams of cocaine for Mr. Hamer that afternoon. The next month on his own initiative Mr. D'Agostino contacted Mr. Hamer and offered to sell him more cocaine. Later that day, Mr. D'Agostino delivered 27.4 grams of cocaine to Mr. Hamer.

Mr. Hamer did not immediately arrest Mr. D'Agostino as he wanted to remain undercover to complete his investigation of the criminal group associated with him. Mr. D'Agostino was indicted in May 1987 on four counts, two of which were dismissed at sentencing as part of a conditional plea agreement. Mr. D'Agostino pleaded guilty to the two cocaine distribution counts. After an evidentiary hearing in which the district judge listened to the taped conversations between Mr. D'Agostino and Mr. Hamer, read transcripts of the conversations, and listened to testimony from Mr. D'Agostino and Mr. Hamer, the district court denied Mr. D'Agostino's motion to dismiss the indictment for outrageous government conduct in the investigation and entered a judgment of conviction. Mr. D'Agostino appeals, arguing that Mr. Hamer inappropriately "pushed and pressed" him into acquiring cocaine for Mr. Hamer to sell.

DISCUSSION

This court reviews the denial of the motion to dismiss the indictment de novo. United States v. Bogart, 783 F.2d 1428, 1431 (9th Cir. 1986), vacated on other grounds for one defendant, United States v. Wingender, 790 F.2d 802 (9th Cir. 1986). The facts are interpreted in the light most favorable to the government. United States v. Bagnariol, 665 F.2d 877, 880 (9th Cir. 1981), cert. denied sub nom., Walgren v. United States, 456 U.S. 962 (1982).

The outrageous government conduct due process defense is founded on the Supreme Court's language in United States v. Russell:

[W]e 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....

411 U.S. 423, 431-32 (1973). The defense depends only on an evaluation of the government's conduct. The defendant's mental state or conduct is irrelevant. By contrast, the entrapment defense is unavailable to defendants such as Mr. D'Agostino who displayed a predisposition to commit the crime charged. Bogart, 783 F.2d at 1433.

The outrageous government conduct defense "is a most narrow one, to be invoked only when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965 (1977) (threats of prosecution and maximum jail sentence made to secure an informant's assistance did not violate defendant's due process rights). Two circuits have dismissed an indictment for outrageous government conduct. Greene v. United States, 454 F.2d 783 (9th Cir. 1971); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). (For a list of nine Ninth Circuit cases denying the defense, see Bogart, 783 F.2d at 1432.) In Greene, the government investigator continued negotiations, offered encouragement and equipment, and provided two thousand pounds of sugar at wholesale for over two and one-half years before defendants actually engaged in bootlegging. The investigator was the only buyer involved during that time. This court said,

We do not believe the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators.

454 F.2d at 787.

At least one district court in the Ninth Circuit has dismissed an indictment because of outrageous government conduct. In United States v. Batres-Santolino, a government informant persuaded the inexperienced and occasionally reluctant defendants to engage in international drug smuggling for the first time. 521 F. Supp. 744 (N.D. Cal. 1981). The court said that the crime "could not and would not have been committed if [the informant] had not inveigled defendants into it." Id. at 751.

After pointing out in Bogart that the government can use stratagem that may be "neither appealing nor moral if judged by abstract norms of decency" to expose criminal activity, this court described two categories of cases in which the outrageous government conduct defense might prevail: (1) Cases that involve "unwarranted physical, or perhaps mental coercion" and (2) cases "where the crime is fabricated entirely by the police to secure the defendant's conviction...." 783 F.2d at 1438.

The conversations between Mr. D'Agostino and Mr. Hamer, dutifully tape-recorded and transcribed, do not evidence government conduct that meets the narrow requirements described above. Mr. Hamer applied no physical or mental coercion. He did not provide the creative genius behind the crime. He merely suggested to Mr. D'Agostino that he could not come up with more money for him right away unless he could buy and sell some cocaine. Mr. D'Agostino took that ball and ran with it, deftly negotiating the terms of his contribution, and providing the cocaine within the same day. Further, Mr. D'Agostino apparently initiated the second cocaine transfer for his own purposes. Mr. Hamer's conduct nowhere approaches the level of involvement and encouragement denounced in Greene and Batres-Santolino. The district court's denial of the motion to dismiss was proper and the judgment of conviction is AFFIRMED.