Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Melvin Johnson, Jr., appeals his conviction on four counts of conspiracy to steal government property and theft of government property. His principal contention on appeal is that we should reverse because the government was guilty of "outrageous conduct" in engineering the conspiracy leading to his convictions.

The conduct of which appellant complains began in March of 1987 when agents persuaded another employee at the Defense Depo Tracy, Alvin Crosby, to assist in their investigation after discovering that Crosby was carrying pharmaceuticals off the depot in his lunch pail.

The government introduced evidence at Johnson's trial that as early as 1974, a James Henry had asked a government employee, Robert Avery to steal dental supplies from the depot, and that between 1974 and 1983, Avery had taken property and turned it over to James Henry for subsequent sale. In 1983, the plan escalated, and the government introduced evidence that Johnson was one of the employees who helped to load shipments into the truck used in the scheme. For this service, Johnson was paid $200 per carton he loaded. In 1986, the ring temporarily halted its operations when Avery was transferred from swing shift to day shift.

Although Johnson contends that the agent's recruitment of Crosby in March of 1987 began an entirely new conspiracy, the government introduced evidence that Crosby was involved, independent of any reactivation of the conspiracy. Even if the conduct of the co-conspirators may be divided into two time periods, Crosby, the government informant, did no more than "activate" the same illegal activity that had been conducted before his involvement, and which had been interrupted by the mere fortuity of circumstances. See United States v. Pemberton, 853 F.2d 730, 736 (9th Cir. 1988) (mere activation of existing conspiracy does not constitute outrageous conduct). The government in this case engineered no criminal enterprise from start to finish. Contra Greene v. United States, 454 F.2d 783 (9th Cir. 1971) (government contacted suspected bootleggers, supplied them with still and materials and bought the entire output).

Johnson also argues that the district court should not have admitted co-conspirator statements because of the "outrageous" government conduct, and that such conduct also requires reversal of his conviction on count six. Since Johnson's claim of outrageous conduct fails, these contentions must fail as well.

The government did not engage in outrageous conduct. Rather than manufacture a criminal enterprise, the government at most activated a dormant conspiracy.

AFFIRMED.