Unpublished Disposition, 855 F.2d 863 (9th Cir. 1986)

MEMORANDUM^** 

OVERVIEW

Daniel Emerson Smith appeals his conviction, following a jury trial, for possession with intent to distribute cocaine. Smith contends (1) the district court erred in refusing to instruct the jury on the defense of abandonment; (2) the prosecutor improperly commented on Smith's exercise of his right not to testify at trial and on his partial silence during interrogation; (3) the agents' activities constituted outrageous government conduct; and (4) his trial counsel rendered ineffective assistance by failing to raise the outrageous government conduct defense. We affirm.

FACTS

On July 5, 1986, FBI agent Ahles received an anonymous telephone call at his California office from a male who said he could "make a large drug case for the FBI." When Ahles pressured the caller for his name, the caller read a list of conditions, which he said the FBI would have to sign before he would give any information. Ahles told the caller he would not sign anything.

Because the caller sounded paranoid and agitated, Ahles asked him if he was high. The caller said he had taken cocaine. He told Ahles there was a two-way mirror in his motel room and that he feared that narcotics agents in the adjoining room were going to arrest him. He told Ahles he had been talking to the agents (who he claimed were visible in the mirror) to get them to contact him; that they refused to contact him; and that was why he called the FBI. Ahles, thinking he had "a nut on [his] hands," hung up on the caller after twenty to thirty minutes.

Shortly thereafter, Ahles received a call from Wenger, a New York FBI agent. Wenger told Ahles he had just received a call from someone he had known previously. The caller had told Wenger he had just called Ahles. After the two agents compared their conversations with the caller, Wenger gave Ahles the caller's name, Daniel Emerson Smith, and the address where he could be found, the Hollywoodland Motel on Ventura Boulevard. Wenger suggested that Ahles should contact Smith. Subsequently, Ahles called Smith at the motel, identified himself, and asked if Smith was still interested in talking to the FBI about a drug case. Smith said he was interested. Ahles told Smith he could not go to the motel that evening, but that he would call the next day.

The following day, Ahles called Smith again. Smith reiterated his interest in talking with the FBI. Ahles, accompanied by Agent Thatcher, then went to Smith's motel, where he met Smith in room 28. Smith showed Ahles a mirror, insisting he could still see people on the other side. Ahles saw no one. Smith handed Ahles two pieces of lined white tablet paper which listed Smith's conditions for giving the FBI information on narcotics. Ahles refused to sign and asked Smith if he was still interested in talking. Smith said yes. Ahles asked Smith if there were drugs in the room. Smith gave Ahles five packages which he said were five kilograms of cocaine. A white powdery substance could be seen in an open package. Ahles was not certain it was actually cocaine.

Ahles and Smith went to Ahles' car. Ahles asked Smith if they could stop by the Los Angeles Police Department to have the powdery substance tested, and Smith agreed. After the substance tested positive for cocaine, Smith agreed to accompany Ahles to the FBI office to discuss the information he had on narcotics. At that time, Ahles had no intention of arresting Smith.

At Ahles' office, Smith told Ahles how he obtained the cocaine as part of a scheme with others. He wanted the FBI to purchase the five kilograms from him for $140,000 so he could set up another buy. He claimed there was a stash house somewhere in Los Angeles with 400 kilograms of cocaine, which he would help the FBI find if they would buy the five kilograms.

During this interview, agent Thatcher discovered the Hermosa Beach Police Department had an outstanding warrant for Smith's arrest. Ahles immediately placed Smith under arrest. He ended the interview, transported Smith to Hermosa Beach, and turned him over to the commander on duty.

The next day, Ahles received a call from Smith. Smith wished to discuss with Ahles again whether the FBI would purchase the five kilograms in Ahles' custody. The next day, Ahles went to see Smith in Hermosa Beach. He gave Smith a copy of a form advising Smith of his Miranda rights. Smith read the form and signed it. Then, Ahles interviewed Smith. Smith told Ahles how he obtained the cocaine and planned to distribute it in Dallas, Texas. The two discussed Smith's offer to cooperate, subject to Smith's conditions.

The government ultimately declined to accept Smith's offer. He was tried and convicted of possession with intent to distribute cocaine and sentenced to an eight-year term of imprisonment.

STANDARD OF REVIEW

This court reviews de novo a district court's refusal to give a jury instruction on a defendant's theory of defense. United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir. 1986), cert. denied, 107 S. Ct. 1628 (1987). The district court's ruling as to the propriety of a prosecutor's comments raises mixed questions of law and fact involving constitutional rights, and is reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.), cert. denied, 469 U.S. 824 (1984). This court reviews de novo whether particular government conduct as a matter of law constitutes a due process violation. United States v. Bogart, 783 F.2d 1428, 1434 (9th Cir. 1986). An ineffective assistance of counsel claim is also reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir. 1985).

ANALYSIS

Jury Instruction on Abandonment Defense

Smith contends the district court erred by refusing to instruct the jury on his abandonment theory of defense. Smith insists his defense of abandonment is proper because he called Ahles as part of a decision to get out of the drug business, thus negating his intent to distribute cocaine.

The district court properly refused to instruct the jury on Smith's abandonment defense because the law does not support it. See United States v. Sommerstedt, 752 F.2d 1494, 1496 (9th Cir.), modified in part on other grounds, 760 F.2d 999, cert. denied, 474 U.S. 851 (1985); Doubleday, 804 F.2d at 1095. Abandonment is considered only as a defense to charges involving attempt. See, e.g., United States v. McDowell, 705 F.2d 426, 428 (11th Cir. 1983); United States v. Jackson, 560 F.2d 112, 117-21 (2d Cir.), cert. denied, 434 U.S. 941 (1977); United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974). Consequently, the abandonment defense has never been applied to possession of cocaine with intent to distribute, because the possession offense is complete once drugs are possessed with the intent to distribute. See United States v. Jewell, 532 F.2d 697, 698 (9th Cir.) (elements of crime), cert. denied, 426 U.S. 951 (1976). Here, Smith possessed cocaine with intent to distribute, even if he later changed his mind.

Prosecutor's Comments

Smith contends the prosecutor improperly commented during closing argument on Smith's exercise of his right not to testify at trial. However, there was no improper comment because the comments referred only to Smith's behavior during the interviews with Ahles, not at trial. See United States v. Pimentel, 654 F.2d 538, 543 (9th Cir. 1981).

Smith also insists the prosecutor improperly commented on his partial silence during pretrial interrogations. During the prosecutor's closing argument, he commented:

When he picked up the cocaine, did he have any intention to surrender or go to the authorities or get out of the business? The same as to when he possessed it for a few days and when he gave it to the prostitute. Were these intentions around at that time? No. And it's significant that not once during any of his interviews with the FBI, not on the phone calls, not on the meetings, not once has he ever said that all along he intended to go forward to the authorities, that all along he intended to turn that in and cooperate and get out of the business. He never told that to Agent Ahles.

(Emphasis added.)

A prosecutor is barred from impeaching a defendant by commenting on his silence during interrogation after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 619 (1976). This rule has been applied in this circuit when a defendant has waived his right to remain silent, but said nothing regarding a defense later used at trial. See United States v. Lopez, 575 F.2d 681, 684-86 (9th Cir. 1978) (prosecutor improperly commented on failure of accused during interrogation to say that shooting was an accident).

The government and Smith have argued on appeal as if Doyle and other cases on post-arrest interrogation apply. However, this situation does not involve a typical interrogation. Here, Smith initiated contact with the FBI in the first instance, and again at the Hermosa Beach jail after his arrest. At his insistence, he spoke with the FBI on six separate occasions: when he first called Ahles, when he called Wenger to persuade him the FBI should talk with him, when Ahles called him and he agreed to be interviewed the next day, when Ahles went to his motel room and he talked, even though Ahles refused to sign his conditions, when he went to Ahles' office for an interview, and finally, when he called the FBI to have them interview him in jail to discuss his "deal." In line with his intense desire to strike a deal with the FBI, he spoke freely before and after he was given a Miranda warning.

When a defendant initiates and insists upon interviews with government agents, it is not error for the prosecutor to comment on inconsistencies in the defendant's version of events during interviews and at trial.

Outrageous Government Conduct

Smith contends that the activities of the agents surrounding his arrest constituted outrageous government conduct and therefore, the indictment against him should be dismissed.

An indictment will be dismissed as violative of due process "only when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965 (1977)). From the few cases in which this defense has succeeded, it is apparent that the conduct of the government rises to an unacceptable level when agents act brutally by employing physical or psychological coercion against the defendant, or where the agents engineered and directed the criminal enterprise from start to finish. See Bogart, 783 F.2d at 1435-36.

Here, the government's conduct leading to Smith's arrest was not outrageous because the evidence demonstrates that Smith initiated the contacts with the government and that he was not coerced by the agents.

Ineffective Assistance of Counsel

Smith contends in the alternative that his trial counsel's failure to raise an outrageous government conduct defense constituted ineffective assistance. To show ineffective assistance, a defendant must prove a deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Smith was not prejudiced by his counsel's failure to raise a meritless defense. See Strickland, 466 U.S. at 687. Therefore, Smith did not receive ineffective assistance of counsel.

The judgment is AFFIRMED.