United States v. Richard Lee Wiley , 794 F.2d 514 ( 1986 )

KENNEDY, Circuit Judge:

Appellant Richard Lee Wiley appeals his conviction for conspiracy to possess and distribute marijuana in violation of 21 U.S.C. § 846. He argues that the district court erred in denying his motion to dismiss his indictment on the ground of outrageous government conduct. We affirm.

The essence of appellant’s outrageous conduct claim is that the government was too active in suggesting a marijuana transaction and providing both an undercover courier and the contraband itself. We find nothing improper in the government’s activation of the smuggling scheme. Given the difficulties of penetrating contraband networks in prisons, we cannot with confidence say the government’s conduct here warrants dismissal of the indictment.

In the fall of 1982, an inmate informant at the Federal Correctional Institute at Lompoc gave prison authorities information on escapes, weapons, and drug trafficking. In early 1983, an associate warden asked the informant to find out about drug use at the prison. By telling inmates that he had access to a pound of marijuana and needed someone to smuggle the contraband inside the prison, the informant learned that Wiley could arrange the delivery. The informant met with Wiley various times to engage his participation in the drug transaction and further offered to finance the deal. After sampling some of the marijuana, Wiley agreed to help bring it into the prison in exchange for being allowed to keep one ounce himself.

As originally conceived, the plan was to deliver the marijuana to a courier who would transfer it in turn to Wiley’s longtime contact, Garbiso, the prison cook. Garbiso would be responsible for smuggling the marijuana into the prison itself. Wiley suggested to the informant that Gar-biso knew Wiley had a girlfriend called Lee who could be trusted as the courier. The problem was that Lee and Wiley were not on good terms, so the informant suggested someone simply pose as Lee in arranging delivery of the marijuana to Garbiso. Wiley agreed and, unknown to him, the informant used the government to choose an FBI agent for Lee’s impersonator. The transaction went forward, with the agent and Garbiso speaking by telephone at various times. In the course of these conversations, Garbiso talked of “doing the deal for Rico Wiley” and explained that the arrangement was for Garbiso to keep half the marijuana for himself and deliver the other half to Wiley. Garbiso said Wiley would not deceive him.

Some two months after these conversations began, the agent delivered the marijuana to Garbiso. An embarrassment arises, for at this point the government lost control over the contraband. Based on subsequent statements of Garbiso and others, it appears the marijuana, or ,at least Wiley’s half of it, was smuggled into the prison and smoked by members of the prison population at the Sunday night movie. A tawdry ending to an investigation, however, does not mean that the courts are required, or indeed authorized, to overlook the serious criminal enterprise that preceded it.

We may dismiss a criminal indictment when government conduct is so outrageous that it violates due process. United States v. Bogart, 783 F.2d 1428, 1433 (9th Cir.1986); see United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). Because the conduct must shock the conscience, however, outrageous government conduct is not to be equated with negligence or poor judgment. Even such lesser charges are not established on this record; and even assuming we were to accept the dissent’s criticisms of the government, the government’s conduct can be described in no harsher terms.

The two principal cases in the courts of appeals that dismiss indictments for outrageous conduct have only limited application. In Greene v. United States, 454 F.2d 783, 786-87 (9th Cir.1971), we found that a number of factors, acting in combination, constituted outrageous government conduct. There, a special investigator initiated contact with the defendants for the purpose of running an illegal bootlegging operation. For two-and-one-half years, the investigator supplied the equipment needed for the still, urged the defendants to produce the liquor, and was their only customer. The Greene case, moreover, was decided prior to the Supreme Court’s decision in Russell, which held that entrapment is not of constitutional dimension, leaving only the most shocking and extreme conduct, of undefined specificity, open to constitutional inquiry. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), an informant set up a speed laboratory, which he financed and operated, and convinced the defendants, who had no background in chemistry, to provide minimal assistance.

The government’s steps to activate the smuggling plan in the case before us do not present a case of misconduct at all, much less conduct that is outrageous. The drug distribution scheme between defendant and Garbiso was in existence before the government became involved; the government merely activated it. See United States v. O’Connor, 737 F.2d 814, 817-18 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1198, 84 L.Ed.2d 343 (1985) (government approached persons already involved in criminal activity); United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.) (per curiam) (government infiltrated criminal organization), cert. denied, 445 U.S. 955,100 S.Ct. 1608, 63 L.Ed.2d 791 (1980). When the investigation commenced, the associate warden learned from the informant that Garbiso may have been involved in smuggling drugs into the prison; the informant also confirmed that Garbiso was Wiley’s courier. The established relation between Wiley and Garbiso is further illustrated by the latter’s conversations with the undercover FBI agent. Gar-biso spoke of “doing the deal for Rico Wiley” and made it clear that he trusted Wiley in drug transactions. By using the informant and the FBI agent posing as a courier, the government merely provided an impetus to Wiley and Garbiso to attempt once again to smuggle drugs into the prison. See United States v. Marcello, 731 F.2d 1354, 1359 (9th Cir.1984) (informant merely “tempted” defendants to “[take] the bait”).

Under these circumstances, providing the drugs for the transaction did not constitute government misconduct either. United States v. Lomas, 706 F.2d 886, 890 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984); see United States v. So, 755 F.2d 1350, 1354 (9th Cir.1985) (providing funds and opportunity to launder money). That the smuggling was successful leads equally as well to the argument that a highly efficient scheme had to be broken as it does to the argument that the government blundered its investigation. The law is not displaced simply because some enforcement attempts go awry.

The result we reach is fully consistent with our earlier rejection of similar claims by Garbiso. See United States v. Garbiso, 782 F.2d 1054 (9th Cir.1986).

Defendant’s conviction is AFFIRMED.