Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Ali Akbar Shamsian appeals his conviction, following a jury trial, for possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a) (1). Shamsian contends the district court erred by (1) denying his motion to dismiss the indictment without an evidentiary hearing on grounds of alleged vindictive prosecution; (2) denying his motion to dismiss the indictment on grounds of alleged outrageous governmental conduct; (3) denying his motion to suppress a bag containing heroin seized at the time of arrest; and (4) excluding the admission of evidence and surrebuttal testimony at trial. We affirm.

The district court properly denied Shamsian's motion to dismiss the indictment without an evidentiary hearing because there was an insufficient showing of vindictive prosecution as a matter of law. A prosecutor's broad discretion to charge has only two limitations: (1) selective enforcement of the law based on the race or religion of the defendant, and (2) threats of charges which the prosecutor has no probable cause to believe are warranted. People of the Territory of Guam v. Fegurgur, 800 F.2d 1470, 1473 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987). In this case, Shamsian has not alleged that the decision to file federal charges was based on his race or religion. Shamsian also has not claimed that he would not be subject to the federal drug charge under section 841(a) (1). Moreover, we conclude that the allegations of vindictive prosecution asserted in this case--that Los Angeles Police Detective Charles Uribe sought to coerce Shamsian into becoming a police informant by threatening to file more severe charges in federal court--are substantively indistinguishable from the allegations of vindictive prosecution we rejected in Fegurgur. See id. at 1472-73. See also United States v. Goodwin, 457 U.S. 368, 381-83 (1982) (no presumption of vindictive prosecution when government increases charges before trial after plea bargaining fails); Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978) (same); United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir. 1984) (same).

The district court also properly denied Shamsian's motion to dismiss the indictment on grounds of outrageous governmental conduct. We have previously declined to find a violation of due process when confronted with allegations of police intimidation and coercion similar to the allegations raised in this case. See United States v. Ramirez, 710 F.2d 535, 540-41 (9th Cir. 1983). Moreover, the allegations of police misconduct, including the alleged filing of a false declaration by Detective Uribe, are undisputedly alleged to have occurred subsequent to Shamsian's arrest and, therefore, after he became involved in the commission of the criminal offense. Under these circumstances, we decline to conclude that the governmental misconduct alleged in this case amounted to a due process violation. See United States v. Stenberg, 803 F.2d 422, 429 (9th Cir. 1986).

The district court did not err by denying Shamsian's motion to suppress a plastic bag containing heroin seized at the time of his arrest. Evidence presented at the suppression hearing revealed that experienced law enforcement officers not only had evidence at the scene of the heroin transaction which was consistent with illegal activity, but also possessed detailed information from an informant who had previously purchased heroin from Shamsian at the exact time and location of the transaction that occurred in this case. This information was derived from an investigation that had been in place for several weeks, had involved prior negotiations for the heroin, and had entailed corroborated information from the informant. The existence of probable cause to arrest Shamsian under these circumstances, and to therefore effectuate a valid search incident to an arrest, was overwhelming. See, e.g., New York v. Belton, 453 U.S. 454, 460-61 (1981).

Finally, we conclude that the district court acted well within its discretion in excluding the introduction of Shamsian's Iranian passport, and by refusing to allow two witnesses to testify during surrebuttal.

AFFIRMED.