Petition — Stevens v. United States

Supreme Cou, ps a” 7

FILE ‘

SEP 4 1919

IN ‘THE |

SUPREME COURT’

OF THE UNITED STA

October Term, 1979

no._@9-360

ROBERT LEE STEVENS,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

_ APPEALS FOR THE NINTH CIRCUIT

BROWN AND NEWTON

By CHESTER L. BROWN

433 North Camden Drive, Suite 1200

Beverly Hills, California 90210

(213) 274-8274 |

Attorneys for Petitioner

ROBERT LEE STEVENS

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

ROBERT LEE STEVENS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BROWN AND NEWTON

By CHESTER L. BROWN

433 North Camden Drive, Suite 1200

Beverly Hills, California 90210

(213) 274-8274

Attorneys for Petitioner

ROBERT LEE STEVENS

noes

TOPICAL INDEX

Table Of Authorities

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

CONCLUSION

APPENDIX "A"

Opinion Filed August

Cases

WRIT

3, 4979

Burton v. Wa tmopgton Parkin

6

Authority, 3

sev (1971)

Deriai.yton v. Plummer, 2

922 (Sth Cir. 1966),

U.S. 715 (1961)

Santobello v. New York, 404 U.S.

40 F.2d

cert.

denied, 353 U.S. 924 (1967)

United States v. Carter, 454 F.2d

426 (4th Cir. 1972), cert.

denied, 417 U.S. 933

Landy v. Federal Deposit Insur-

ance Corporation, 486 F.2d

139 (3rd Cir. 1973), cert.

denied, 416 U.S. 960

United States v. Ogden, 485 F.2d

536 (9th Cir. 1973), cert.

denied, 416 U.S. 987

i

~]

11

Table Of Authorities © oa

Page 7 Table Of Authorities

Safeway Portland Employees %

Federal Credit Union v. ; Page

Federal Deposit Insurance 7

Corporation, 506 F.2d 1213, “ Rules

318 (Sth Cir. 1974) 9 iN

12 C.F.R. §326.5(d) 9

United States v. Casada,

527 F.2d 1374 (9th Cir. 1975) ll

United States v. Alessi, 536 F.2d

978 (2nd Cir. 1976) 5

Jones v. Marva Theaters, Inc.,

180 F.Supp. 49 (D. Md. 1960) 7

Adams v. New Orleans, 208 F.Supp.

427 (E.D. La. 1962)

Guillory v. Tulane University,

"203 F.Supp. 855; 207 F.Supp.

554 (E.D. La.), aff'd, 306 ie

F.2d 489 (5th Cir.), on remand &

212 F.Supp. 674 (E.D. La. é i

1962) 10 3

Matter of Doe, 410 F.Supp. 1163 rs

:

Statutes ca

28 U.S.C. §1254(1)

12 U.S.C. §1812

12 U.S.C. §§1817, 1881, 1882

12 U.S.C. §1884

oo oO KF

Mice

ii a

iii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

NO.

ROBERT LEE STEVENS,

Petitioner

Ti

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The Petitioner, ROBERT LEE STEVENS,

respectfully prays that a Writ of Certior-

ari issue to review the judgment and

opinion of the United States Court of Ap-

peals for the Ninth Circuit entered in

this proceeding on August 3, 1979.

OPINION BELOW

The opinion of the Court of Appeals

_appears herein as Appendix "A" hereto.

=j =

ae

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered August 3,

1979. This Court's jurisdiction is in-

voked under Title 28, United States Code,

Section 1254(1).

QUESTION PRESENTED

Was “state action" present when bank

investigators of federally insured banks

promised the Petitioner immunity from

prosecution in exchange for his coopera-

tion?

STATEMENT OF THE CASE

Petitioner was convicted of making

various false statements in procuring a

loan from a federally insured bank. In

1975, Petitioner borrowed money from the

United California Bank, pledging as col-

lateral for the loan a certificate of de-

posit from the Bank of America. The

Petitioner thereafter went into default on

the loan with United California Bank, who

attempted to collect on the collateral

only to find that the certificate of de-

posit was a forgery. Petitioner had, prior

to this time, repaid part of the loan.

-2-

In November of 1975, Petitioner was

callec into the United California Bank

where bank investigators asked him ques-

tions concerning the collateral. Peti-

tioner stated he wanted to talk with his

attorney. On November 4, 1975, Petitioner

met with Gerald Caminer, Bank of America

Regional Investigator and Frank Northrop,

United California Bank Loss Investigator.

This meeting occurred at the office of

Petitioner's attorney, Barry Menes.

Caminer and Northrop advised Petitioner

that if he promised to repay United Cali-

fornia Bank the amount due on the loan,

and tell Bank of America how and where he

obtained the certificate of deposit, no

criminal action would be initiated by

either bank. A memorandum, prepared by

Caminer, stated the promise as follows:

"Northrop and the under-

signed concurred with Stevens

that if he signs a repayment

agreement for UCB and dis-

close the Bank of America's

employee's name, there won't

be any criminal action

-3-

initiated either by UCB or

B of A against Stevens if he

meets his payment schedule."

Petitioner agreed to this, and pro-

vided the Bank of America with the em-

ployee's name, and signed a new payment

schedule with United California Bank.

Thereafter, on November 9, 1977, the

United California Bank called the Federal

Bureau of Investigation and advised them

of what Petitioner had told them. The

Government had no information concerning

this transaction prior to this time. On

November 12, 1977, the Government began

its investigation, which subsequently lead

to Petitioner's indictment. At trial, it

was not disputed that the criminal charges

were the fruits of the Petitioner's admis-

sions to the Bank officials.

REASONS FOR GRANTING

THE WRIT

The decision of the Court of Appeals,

in affirming the instant conviction, places

the stamp of approval on a practice of al-

lowing the Government to initiate a

prosecution and obtain a conviction based

ay

upon the broken promises of bank offi-

cials, who themselves are agents of the

Government for purposes of investigating

and reporting bank losses.

It is a fundamental axiom of Consti-

tutional law that the promises or repre-

sentations made by the Government to de-

fendants in criminal cases are binding on

the Government through the Due Process

Clause of the Fifth Amendment. Starting

with Santobello v. New York, 404 U.S. 257

(1971), the Court has stated that these

promises will be enforced by the courts in

the exercise of their supervisorial powers

and the Government will be required to

specifically perform such arrangements.

See, United States v. Alessi, 536 F.2d 978

(2nd Cir. 1976)

The progeny of Santobello has recogni-

zed that this principle is applicable to

all levels of Government. The obvious

reason is that historically, the various

Amendments have been applied to the "Govern-

ment" as limitations on their exercise of

power. CF. Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961). In cases

=

applying the Fifth Amendment to federal

criminal matters, Santobello has been ex-

tended to require enforcement of agree-

ments both of prosecutors and federal

agents. United States v. Carter, 454 F.2d

426 (4th Cir. 1972) cert. denied, 417 U.S.

933; Matter of Doe, 410 F.Supp. 1163 (E.D.

Mich. 1976).

In the Doe case, the Court stated:

"In this limited contract

the government may not rely

upon distinctions between ex-

press, implied, and apparent

authority among its agents in

avoiding the effect of its

promise. These distinctions

have meaning for the legal

technician, not the layman

dealing with the ‘government’

in his negotiations. The

solution to agents who bar-

gain away the government's

rights is tighter adminis-

trative control within the

executive branch. (Citations

omitted) "

-6=

In Doe, an FBI agent promised a defendant

that he would not have to testify as to

certain matters before a grand jury. The

prosecutor, in spite of that representa-

tion nevertheless attempted to question

the defendant about those matters. The

court in Doe enforced the agent's promise.

The Government has maintained through-

out this case that the actions of Caminer

and Northrop were the actions of "private"

persons, and hence not binding on the

Government. However, the actions of pri-

vate persons have on many occasions been

held to constitute governmental action,

especially so when the question of segre-

gation has been in issue. Burton v.

Wilmington Parking Authority, supra; Der-

rington v. Plummer, 240 F.2d 922 (5th Cir.

1966), cert. denied, 353 U.S. 924 (1967).

See aiso, Adams v. New Orleans, 208 F.Supp.

427 (E.D. La. 1962); Jones v. Marva Thea-

ters, Inc., 180 F.Supp. 49 (D. Md. 1960).

The Petitioner respectfully contends

that due to the amount of public control

involved with federally insured banks, the

actions of its agents should be considered

x,

Tere tegctmece

to be governmental action. It is unlikely

that any other business activity is more

heavily regulated by the Federal Govern-

ment than banks. Each of these two banks,

and more specifically their employees,

come under rules and regulations of the

Federal Deposit Insurance Corporation.

Title 12, United States Code, et seq.,

governs the relationship between the FDIC

and the various banks. The FDIC is a

federal corporation, managed by those

directors, *' cluding the Comptroller of

the Currency and two persons appointed by

the President. Title 12, United States

-Code, Section 1812. Under the statutes

and regulations, insured banks are subject

to strenuous operating requirements with

respect to the maintenance of security.

Title 12, United States Code, Section 1817,

1881, 1882. Failure to comply with these

statutes and the regulations promulgated

thereunder subjects the banks to civil

penalties enforceable by the Department

of Justice. Title 12, United States Code,

Section 1884.

One of the reporting requirements has

to do with non-bank employee larceny.

Banks, such as these, must report such

incidents to the Regional Director of the

FDIC. 12 CFR Section 326.5(d). A report

is made on Form P-2, which is forwarded

to the Regional Director's office. The

Regional Director's office, in turn re-

views these forms. If the bank has not

notified the FBI prior to the receipt of

this form, the Regional Director's office

will report the incident to the appropri-

ate United States Attorney.

In sum, pursuant to both statutory

compulsion and practice, all incidents of

wrongdoing involving a bank, its employees

and its insured deposits are brought to

the attention of federal law enforcement

officials. The party or parties making

this report, fall under the ambit of the

FDIC. That agency is a federal agency and

an arm of the Government. See, Safeway

Portland Employees Federal Credit Union v.

Federal Deposit Insurance Corporation, 506

F.2d 1213, 1215 (9th Cir. 1974); Landy v.

Federal Deposit Insurance Corporation, 486

ae

F.2d 139 (3rd Cir. 1973), cert. denied,

416 U.S. 960. And, of course, the inter-

view in question here was initiated and

concerned itself with a bank employee of

the Bank of America.

Being an arm of the federal govern-

ment, and being required to report wrong-

doing to the United States Attorney, dif-

ferentiates Messrs. Caminer and Northrop

from other "private" persons. Due to the

amount of public control, See, e.g. Guil-

lory v. Tulane University, 203 F.Supp. 855,

207 F.Supp. 554 (E.D. La.), aff'd. 306 F.

2d 489 (5th Cir.), on remancl, 212 F.Supp.

674 (E.D. La. 1962), both Caminer and

Northrop should be viewed as governmental

agents.

The Ninth Circuit has previously held

that the actions of private persons are

tantamount to governmental action. In the

sky-jacking cases, the Federal Aviation

Administration promulgated regulations and

procedures to be followed by the airlines

in screening and searching boarding pas-

sengers. Following such searches, the

argument was made that the Fourth Amendment

-10-

did not apply, as the actions involved

"private" persons. This Court disagreed

in several cases. United States v.

Casada, 527 F.2d 1374 (9th Cir. 1975);

United States v. Ogden, 485 F.2d 536 (9th

Cir. 1973), cert. denied, 416 U.S. 987.

The public interest in security of

the airlines dictated the application of

the Fourth Amendment to airline security

personnei. The public interest in the

security of banks should likewise dictate

the application of the Fifth Amendment to

bank examiners. The Petitioner justifi-

ably relied on a promise not to institute

criminal action. He agreed to repay a

large loan, and provided information

against a bank employee. The bank exami-

ners intentionally lied to the Petitioner

as evidenced by their memorandum, wherein

they stated that they would contact the

FBI as soon as the Petitioner signed a

stipulated judgment for repayment of the

money.

The banks in this case have used the

federal government to turn a civil matter

«li-@

into a criminal prosecution. They met

with the Petitioner obstensibly to collect

a loan in default, while all the time in-

tending to turn the matter over for crimi-

nal prosecution. They acted as federal

criminal agents, in part because the law

does impose this requirement upon them.

They want, to use the venacular, to have

their cake and eat it too. The Petitioner

relied on their representations, as did

his attorney. As in Doe, the Petitioner

thought he was dealing at arms length with

the Government. This Court should enforce

their promise, lest the term due process

loses all meaning.

The decision of the Court below was

basically a policy decision. The Court

was reluctant to promulgate a rule allow-

ing bank officials the power to grant im-

munity. However, policy consideration

should weigh in favor of the Petitioner,

to prevent the conduct here engaged in.

The Government can prevent further abuses

in this area by stricter control over bank

officials. This approach is far more de-

Sirable than granting to those same

-12-

. officials a license to lie.

CONCLUSION

For the foregoing reasons, the Peti-

tion for a Writ of Certiorari should be

granted.

Respectfully submitted,

CHESTER L. BROWN

Attorney For Petitioner

at

BROWN AND NEWTON

Attorneys at Law

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) NO. 78-1884

Appellee,

Vv. ) OPINION

ROBERT LEE STEVENS, .

Appellant. )

)

Filed: Aug. 3, 1979

Emil E. Melfi, Jr., Clerk

U. S. Court of Appeals

Appeal from the United States Di i

istrict

Court for the Central District of Cali-

fornia

Before: ELY and TRASK, Circuit Judges,

and EAST,* District Judge

TRASK, Circuit Judge:

Robert Lee Stevens appeals from his

conviction for making false statements to

banks insured by the Federal Deposit In-

surance Corporation in violation of

18 U.S.C. §1005. We affirm.

*Honorable William G. East, Senior United

States District Judge, for the District of.

_Oregon, sitting by designation.

A-1

ee tn ats, NL coated + deni

ann eerie

I

Appellant was found guilty after a

jury-waived trial on stipulated facts.

He admitted that on January 9, 1975, he

applied for a loan of $225,000 from the

United California Bank and presented a _

stolen and forged Bank of America time

certificate of deposit in the amount of

$225,000 as security for that loan. The

certificate had been stolen with the as-

sistance of a Bank of America employee.

Stevens signed the employee's name to the

certificate and to a letter acknowledging

that the certificate had been posted as

security for the United California Bank

loan. Stevens renewed the loan on Febru-

ary 2, 1976, again pledging the stolen and

forged certificate as collateral. On

March 10, 1975, he applied for a $125,000

loan fro Gibraltar Savings and Loan; on

January 20, 1976, he applied for a $5,000

loan from Lloyds Bank; on November 18,

1976, he applied for a $5,000 loan from

Manufacturers Bank. In each instance the

loan application failed to disclose

Stevens' liability to United California

A-2

Bank.

Stevens made no payments on the

United California Bank loan after February

1976. United California Bank presented

the $250,000 certificate of deposit it held

as collateral to the Bank of America on

October 23, 1976, and learned the certifi-

cate was invalid. On November 4, 1976,

United California Bank investigator Frank

Northrup and Bank of America investigator

Gerald E. Caminer met with Stevens' at-

torney, Barry Menes. Menes told the in-

vestigators that Stevens had informed him

that two former employees of United Cali-

fornia Bank and Bank of America had been

involved in the theft and forgery of the

certificate. Menes said Stevens might re-

fuse to identify the employees because of

the risk of self-incrimination. However,

Menes indicated that his client might be

willing to sign a repayment agreement.

Later that afternoon Stevens joined

the meeting. Stevens' and Menes' version

of what was said contrasts sharply with

Northrup's and Caminer's account. Accord-

ing to Stevens and his lawyer, the bank

A-3

investigators promised that if Stevens

signed a repayment agreement and disclosed

the identity of the bank employees who

helped him obtain the stolen certificate

of deposit, the banks would not notify the

FBI or otherwise initiate criminal proceed-

ings against him. Relying on this so-

called "promise of immunity from prosecu-

tion", Stevens said he would sign the re-

payment agreement, and he gave the investi-

gators a detailed account of the theft and

forgery of the certificate of deposit. At

the conclusion of the meeting, Caminer pre-

pared a memorandum which said the banks'

representatives had orally promised not to

initiate a prosecution against Stevens if

he performed his part of the bargain.

Northrup and Caminer later claimed the

memorandum was inaccurate.

Five days after the meeting of Novem-

ber 4, 1976, a United California Bank of-

ficial reported Stevens' incriminating

statements to the FBI. A federal investi-

gation resulted, and on September 19, 1977,

a federal grand jury for the Central

District of California indicted Appellant

A-4 ~*

on seven counts of making false statements

to banks insured by the Federal Deposit

Insurance Corporation and making a certi-

ficate of deposit without authority and

with intent to defraud.

In a pretrial motion, Stevens argued

that the bank investigators were de facto

government agents, and he asked the

district court either to decree specific

performance of the alleged promise of im-

munity by dismissing the indictment or to

suppress the confession and its fruits be-

cause they were obtained by means of a

false promise. It is from the denial of

this motion that Stevens now appeals. The

district judge made no findings of fact

regarding what, if any, promises were

made. He reasoned that even if all of

Stevens' allegations were true, the govern-

ment was not bound by the investigators'

‘promise of immunity because, as a matter

ef law, they were not government agents.

We agree with the district court's

analysis and likewise see no reason to

resolve the factual dispute over what was

A-5

said at the November 4, 1976 meeting.

II

Under certain circumstances private

actors are transformed into government

agents by virtue of their involvement in

a federally regulated crime prevention

program. This doctrine is best illustrat-

ed by the airplane passenger search cases.

In United States v. Canada, 527 F.2d 1374

(9th Cir. 1975), cert. denied, 429 U.S.

867 (1976), and United States v. Davis,

482 F.2d 893 (9th Cir. 1973), this court

held that because federal regulations re-

quire privately employed airline security

personnel to search passengers’ carry-on

luggage, such searches constitute state

action for Fourth Amendment purposes.

However, where the regulations do not

specifically mandate the particular type

of search engaged in, the airline em-

ployees' actions are deemed private in

nature. See United States v. Gumerlock,

590 F.2d 794 (9th Cir. 1979) (en banc)

(search of airfreight shipment held priv-

ate); United States v. Ogden, 485 F.2d

A-6

536 (9th Cir.), cert. denied, 416 U.S. 987

(1973) (search of checked baggage held priv-

ate). ,

Appellant analogizes his interroga-

tion by bank investigators to the search

of airplane passengers in Canada and Davis.

According to Stevens, the interrogation

and concomitant promise of immunity were

mandated by federal regulations and were

therefore government actions. Appellant

points out that banks insured by the

Federal Deposit Insurance Corporation are

required to report wrongdoing to federal

authorities. He says banks cannot dis-

charge their duties without conducting in-

vestigations and interviews. To secure an

interviewee's cooperation, promises of im-

munity are sometimes necessary, Stevens

claims. Under appellant's theory, the

federal regulatory scheme cloaks bank in-

vestigators with apparent authority to

make such promises. In effect, bank in-

vestigators have been deputized as de

facto government agents. And when govern-

ment agents make promises to a person in

order to induce him to incriminate himself,

A-7

eT ine

the government must honor those promises.

Santobello v. New York, 404 U.S. 257 (1971);

United States v. Rodman, 519 F.2d 1058

(lst Cir. 1975); United States v. Carter,

454 F.2d 426 (4th Cir.) (en banc), cert.

denied, 417 U.S. 933 (1972). Appellant

would have us hold that the bank investi-

gators' promises bind the United States,

just as the Securities and Exchange Com-

mission investigator's promises bound the

government in Rodman and the prosecutors’

promises bound the government in Santobello

and Carter.

We reject Stevens' arguments for two

reasons. First, it requires an unreason-

able stretch of the imagination to read

into the banking regulations a provision

granting private investigators, who are

answerable to no one save their own em-

ployers, the power to confer immunity from

prosecution. Second, in light of the fact

that the investigators possessed sufficient

information to comply with federal report-

ing requirements before they questioned

Stevens, the interrogation and promise of

immunity can only be regarded as gratuitous

A-8 @ Ss

Ss

——

=

private acts rather than as deeds perform-

ed at the government's behest.

As Judge Friendly, writing for the

court in United States v. Solomon, 509 F.

2d 863 (2nd Cir. 1975), has observed,

courts should be extremely reluctant to

interpret a federal regulatory scheme as

implicitly authorizing a private party to

confer immunity from prosecution. In

Solomon the court rejected the defendant's

argument that interrogation by New York

Stock Exchange officials were tantamount

to questioning by federal agents. The

court held that notwithstanding federal

regulation of the Exchange, its investiga-

tory functions were essentially private.

In so holding, the Second Circuit noted

that the consequence of deeming Exchange

officials government agents would be to

vest them "and many other similar bodies

- « - with the power to grant use immunity."

That would be highly injurious to justice,

the court said, because the private groups

could grant immunity "without any weighing

of the need for the evidence against the

undesirability of conferring an immunity

A-9

which goes beyond the testimony or infor-

mation itself, and without the supervision

of the Attorney General to which even

government agencies are subjected." 509

F.2d at 870. Similar considerations

militate against adoption of appellant's

theory in the case at bar.

Even if Stevens' theory did have

merit, his appeal would still fail because

it is based upon a false premise. It

simply is not true that the bank investi-

gators had to interrogate Stevens in order

to secure enough information to comply

with federal banking regulations. To ex-

pose the fallacy in appellant's argument,

we must first examine the statutes and re-

gulations on which he relies.

12 U.S.C. §1881(3) describes the

Federal Deposit Insurance Corporation as

a "Federal supervisory agency." 12 U.S.C.

§1882(a) requires each Federal supervisory

agency to promulgate rules establishing

minimum standards for banks "with respect

to the installation, maintenance, and

operation of security devices and pro-

cedures, reasonable in cost, to discourage

A-10

robberies, burglaries, and larcenies and

to assist in the identification and ap-

prehension of persons who commit such

acts." 12 U.S.C. §1884 imposes a civil

penalty of $100 a day for violations of

the rules. 12 C.F.R. §326 prescribes the

kinds of security devices banks must in-

stall and mandates certain reports. Ap-

pellant places particular emphasis on

§326.5(d) which reads:

"(d) External crime reports.

Each time a robbery, burglary

or nonbank employee larceny is

perpetrated or attempted at a

banking office operated by an

insured state nonmember bank,

the bank shall, within a rea-

sonable time, file a report in

conformity with the requirements

of Form P-2. One copy of such

report shall be filed with the

appropriate state supervisory

authority and three copies of

such report shall be filed with

the Regional Director of the

Federal Deposit Insurance

A-11

Region in which the main of-

fice of the reporting bank is

located."

Form P-2 contains 38 questions. First

the bank must describe where and when the

crime was perpetrated, state whether it

was a robbery, a burglary, or a non-

employee larceny, and estimate the bank's

losses. Then it must answer the questions

set forth in the applicable subsection.

If a robbery was committed, the bank must

answer a series of questions about the

robber's modus operandi, his appearance,

his weapons, etc. If a burglary was

perpetrated, the bank has to describe how

the burglars gained entrance to the pre-

mises, what they broke into, and so forth.

If the crime consisted of a non-employee

larceny, the bank has to answer only one

question:

"32. Modus operandi of lar-

ceny (check one):

a. (60) |_| Money or

valuables where thief had

access. Explain. | |

b. (61) i £Theft by

trick or pretext;

A-12

Explain

c. (62) __—‘— Other,

specify

In addition, all banks must state how long

it took the police to respond, whether

the perpetrators were arrested, and what

types of security measures might prevent

future crimes.

The record plainly shows that before

Caminer and Northrup spoke with Stevens on

November 4, 1976, they had in their pos-

session all of the information they needed

to answer every applicable question on

Form P-2. They had learned from Menes

that bank employees had stolen the certi-

ficates of deposit. Stevens' knowledge of

the employees' criminality plus his use of

the stolen instrument as collateral for a

loan suggested that he, a non-employee, was

somehow involved in the larceny. These

were essentially the only facts the bank

officials needed to know. They did not

have to discover and disclose the dis-

honest employees' names or the exact means

by which Stevens and his accomplices

A-13

committed the crimes. To comply with fed-

eral regulations, all the bank officials

had to do was report Stevens' probable in-

volvement and give a general indication of

his modus operandi (i.e., state that

Stevens did not steal the certificate him-

self but rather obtained it from a dis-

honest employee). The task of ferreting

out Stevens' confederates from among the

various employees who had access to certi-

ficates of deposit should have been left

to the FBI.

United States v. Ogden, supra, and

United States v. Gumerlock, supra, stand

for the propesition that if federal regu-

lations authorize a private party to con-

duct a specific kind of investigation and

employees of the regulated entity take the

enquiry one step further than the regula-

tions require, the employees lose their

status as federal agents vis-a-vis the

ultra vires acts. Like the airline per-

- fam + 7nd Oe

he AIMEE TILE 7 IY on

sonnel who checked baggage and airfreight

shipments, Caminer and Northrup went

further than federal regulations told them

to go. Consequently their acts were purely

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private in character.

"A private person cannot act unilater-

ally as an agent or instrument of the state;

there must be some degree of governmental

knowledge and acquiescence." United

States v. Sherwin, 539 F.2d l, 6 (9th

Cir. 1976) (en banc). There is not the

slightest evidence that federal authorities

encouraged or even knew about the banks'

investigatory activities until several days

after the November 4, 1976 meeting at

which Stevens was interrogated and promised

immunity. It is obvious that the investi-

gators' foremost goal was not to serve the

government but rather to protect their em-

ployers' financial interests; significant-

ly, they made their promise of immunity

conditional upon Stevens' signing a repay-

ment agreement. Even if one of their ob-

jectives was to secure evidence for use

against appellant in a criminal prosecu-

tion, Caminer and Northrup still cannot be

considered de facto government agents. A

mere purpose to assist the government is

not sufficient in and of itself to convert

a private actor into a government actor.

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United States v. Gumerlock, supra, 590 F.2d

at 800; United States v. Newton, 510 F.2d

1149, 1153 (7th Cir. 1975).

We hold that the bank investigators

were acting in a private capacity when

they questioned appellant, and therefore

the government is not obligated to honor

any promises of immunity they may have

made. The district court's denial of ap-

pellant's motion to dismiss the indictment

or to suppress the confession and its

fruits was proper. Appellant's conviction

is hereby AFFIRMED.

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