Petition for Writ of Certiorari — Simpson v. United States
Supreme Court brief1987
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8 r¢ ea 2 98 Supreme Court, U.S.
FILED
ssi AUG 21 1987
JOSEPH F. SPANIOL, JR:
IN THE CLERK
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1987
DARREL PATERSON SIMPSON,
ROBERT MACRINER ANDERSON,
and JAMES ROY FREEMAN,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA C, NEEDLE
Attorney at Law
1541 Ocean Avenue
Suite 200
Santa Monica, California
Telephone: (213) 393-0520
Counsel for Petitioner
DARREL PATERSON SIMPSON
Publishing and Graphic Electronic Services, Inc. (PAGES) / (213) 474-7855
QUESTIONS PRESENTED
1. Have the moral and ethical boundaries of Due
Process for undercover operations been exceeded by
the activities of the Government in this case?
In United States v. Russell (1973) 411 U.S. 423, 93
S.Ct. 63, 36 L.Ed.2d 366, (Chief) Justice Rehnquist
accurately predicted that “some day” the Court might
be presented with a case wherein “‘the conduct of law
enforcement agents is so outrageous that due proces
principles would absolutely bar the government from
invoking the judicial process to obtain a conviction.”
The District Court held that “‘the conduct here has
lowered itself to that level” and dismissed the case.
Judge Hatter found that, “Indeed, Mr. Justice
Rehnquist’s dictum has come home to roost in this
case.*** It is important that I send a message now to
the government that this kind of activity will not be
tolerated.”
Upon appeal by the Government, the Ninth Circuit
Court of Appeals reversed in a de novo review. Finding
no precedent for the dismissal on moral or ethical
grounds, the Court found that “Although we do not
necessarily condone this investigatory tactic, we hold
that the government’s conduct was not so shocking as
to violate the due process clause.”
This case, wherein the FBI introduced its informant
— a paid, heroin-addicted, professional prostitute — to
a suspect, allowed her to develop and maintain an
intimate sexual reiationship with him, and then involve
him in her criminal activities presents this Court with
an opportunity to establish the parameters of those
“principles of due process” last discussed over a
decade ago.
a
2. Does a dismissal due to “outrageous governmen-
tal conduct” establish an “ultimate” exclusionary rule?
If so, the Court must provide the lower courts with a
new analytical framework for analyzing such claims.
—iii—
TABLE OF CONTENTS
Page
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CONSTITUTIONAL PROVISION
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A. FACTUAL HISTORY OF THE
SIMPSON “INVESTIGATION” ............... 8
B. APPLICATION OF DUE PROCESS
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II. THE DUE PROCESS CLAUSE AS
EXCLUSIONARY RULE: AN
ANALYTICAL FRAMEWORK ............... 21
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TABLE OF AUTHORITIES
Page
Cases
Eisenstadt v. Baird (1972)
IR ING IEE ies GnitnG Aas acstessesmaseaobonnenanemanidudons 20
Elkins v. United States (1960)
ee II MIEN - cubist deities inusicsknhanpibiccleonaseesaiinanans 22
Greene v. United States (1971)
ae IE OP siidieliaxcdichaatnadisiasieteehanaicannioasceriounins 19
Griswold v. Connecticut (1965)
ey EE ca leciespracticicacun sonsascamandossconseias 20
Hampton v. United States (1976)
ee EE TERRIER ncn EIR A TEI 15
International Shoe Co. v. Washington (1945)
TS ie eae A aiken LR een 14
Katz v. United States (1967)
I pa rial i castnsisdaccdabindaniamviiinnteanina 20
Mapp v. Ohio (1961)
CS as ase cnlalcaalltmaines 22
Olmstead v. United States (1928)
ge SE SBR Ab enn ne en ee 20, 22
United States v. Russell (1973)
411 U.S. 423, 93 S.Ct. 63, 36 L.Ed.2d
IEE. sonisrnadabidienapeakitatcotbitinecies ta, 2
Weeks v. United States (1914)
BN I SII sehactiataieeanabdnce Si thinnintatits ee ecrucae: 22
Wolf v. Colorado (1949)
OE A EE Misc anna aecenei eG 14
Statutes
is US.
§ 2518 c.esesssscsessscercnesssseseesesensenenananenesessessnenens 3, 4
§ 3731 cessssssssscscscsenenescesscnenenenensncncncncnsscnssesesenenes 2
28 U.S.C.
§ 1254 (1) cescccsesererersrssssesessseesenersnerenenenesesersnesenens 3
S 1291 recsscesesereesenesesssssssesesencncnsnensssnseceseseeneneeas 2
Title 21, United States Code
Section 841(a)(1) ....ccceseccceseeeserseeeeesereseeteneeeensees 2
Section 846 .........ccccccccccsssscseccscsccceccessseccecosesceees 2
Rules
Revised Rules of the United States
Supreme Court
Berlin DOASM crcrsccsssdiaacrssesnasanessessescnsasasamsassensanss 3
§ 807 ..sssessssescscsesencscncsssceesesessesesenesenenenessssenerens 13
Constitutions
United States Constitution
Fifth Amendment ....... 2, 3, 8, 14, 20, passim
Fourth Amendment .............::ecccseeees 20, 22, 24
IN THE
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1987
DARREL PATERSON SIMPSON,
ROBERT MACRINER ANDERSON,
and JAMES ROY FREEMAN,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
\
Petitioners pray that a writ of certiorari issue to
review the decision of the United States Court of
Appeals for the Ninth Circuit, entered April 3, 1987,
rehearing denied June 23, 1987, reversing the decision
of the United States District Court, the Honorable
Terry J. Hatter, Jr., dismissing these criminal
proceedings upon findings that the government agents
had violated the Due Process Clause in their pursuit of
these individuals.
INTERESTED PARTIES
In addition to the named parties, the following
parties appeared in the Court of Appeals as Amicus
Curiae:
California Attorneys for Criminal Justice
National Association of Criminal Defense
Lawyers
American Civil Liberties Union
OPINION BELOW
On March 1, 1984, Petitioners were indicted with
violations of Sections 841(a)(1) and 846 of Title 21,
United States Code.
Following pretrial proceedings the Indictment was
dismissed by Judge Terry J. Hatter, Jr., District J udge,
Central District of California, on June 21, 1984.
A government motion for reconsideration was
denied on October 11, 1984.
On October 26, 1984, the Government filed its notice
of appeal pursuant to 18 U.S.C. § 3731 and 28 U.S.C.
§ 1291.
On April 3, 1987, the Ninth Circuit Court of
Appeals filed its opinion, affirming in part and
reversing in part the District Court; the opinion has
been published in the official reports at 813 F.2d 1462,
and a true copy is attached hereto as Appendix A. The
Court affirmed the order of the District Court
suppressing certain wiretaps, but reversed the order
dismissing the case upon a finding of outrageous
government conduct in violation of the Due Process
Clause of the Fifth Amendment of the United States
Constitution.
Petitioner seeks review of the reversal of the latter
order.
The indictment having been dismissed, Petitioner
remains at liberty.
JURISDICTION
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1254(1). The opinion of the Ninth Circuit
was filed on April 3, 1987; Petitioner’s petition for
rehearing having been denied on June 23, 1987 (see
Appendix B), this Petition is timely filed within 60 days
thereafter (Rule 20.1/.4, Revised Rules of the United
States Supreme Court, as amended July 5, 1984).
CONSTITUTIONAL PROVISION INVOLVED
Fifth Amendment to the
Constitution of the United States
“No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand
jury ...; nor [shall any person] be deprived
of life, liberty, or property without due
process of law.”
STATEMENT OF THE CASE
Following an eight-day evidentiary hearing on
motions by the defendants on the dual issues of
“Outrageous Government Conduct” under the Fifth
Amendment and suppression of wiretaps, the District
Court, the Honorable Terry J. Hatter, Jr., Judge,
Central District of California, granted both motions. In
suppressing the wiretaps — which is not under review
herein except insofar as the relevant factual findings
support the order dismissing the case — the Court
found, inter alia, that the affidavit pursuant to 18
U.S.C. § 2518 was “artfully drafted with the intent to
mislead the reviewing judge.”
In finding the conduct of the government in this case
“outrageous” and “shocking to the conscience,” Judge
Hatter made a lengthy oral statement of his reasoning,
including the following comments:
I am troubled, I am offended, when I see
someone like Helen Miller take the stand, a
tragic figure. And, indeed, I charge that the
Government has made her even more tragic.
ee
Agent Ross, I found to be almost evasive.
Perhaps that comes from doing too much
undercover work. I don’t know.
Agent Hamer, on the other hand, was also
engaged in undercover work. I did not find
him to be evasive. But I did find, with regard
to him, this deliberate closing of the eyes. It
cannot be tolerated... .
Agent Hamer testified that he was worried
from a moral standpoint and from a legal
standpoint about how these young ladies
would comport themselves, that he didn’t
want to compromise the case. Well, the case
has been compromised.
For the Government to present to this
Court Affidavits of the Agent, Miss Miller,
where they are almost indignant in their
protestations that there was not sexual
intercourse, knowing full well that there was,
quote unquote, “sexual foreplay,” [sic] [is
dishonest]
ahh
There must be protection of the Constitu-
tion and its rights. And as laudable as the
result that was sought here, the means were
intolerable... .
Indeed, Mr. Justice Rehnquist’s dictum has
come home to roost in this case. There are so
many of these kinds of cases in which this
motion is made that it is almost laughed away.
Ree
But it is important that we as judges
continue to listen, as outrageous as sometimes
are the defenses that are raised, because there
may indeed be the time, as here, where there
is some substance to that defense which is
raised. As I say, I am constantly in the
business of sending messages to drug dealers.
It is important I send a message now to the
government that this kind of activity will not
be tolerated.
Following the denial of their motion for reconsider-
ation, the Government appealed the dismissal and the
wiretap suppression order to the United States Court
of Appeals for the Ninth Circuit. The suppression
order was affirmed, but in what that Court deemed a
de novo review, the order dismissing the case was
reversed.
Relying almost entirely on incomplete Findings of
Fact and Conclusions of Law rather than on the oral
findings as set forth in the Reporter’s Transcript, that
Court opined that the “three discrete aspects of the
FBI’s investigations of Simpson” (all of which focused
on Ms. Miller’s participation) cited by Judge Hatter
were “‘not so outrageous as to justify dismissal of the
indictment on due process grounds.” In analyzing this
case as one within “‘that slim category of cases in which
the police have been brutal, employing physical or
psychological coercion against the defendant,” the
Court misconstrued the nature of this case entirely:
We acknowledge that Simpson may have
suffered severe emotional trauma and felt
stripped of his dignity upon iearning that
Miller’s apparent affection for him was
contrived and designed to hasien his downfall.
However, because Simpson’s treatment by
Miller falls short of the brutality and coercion
underlying previous successful outrageous
conduct challenges and the government
cannot be assigned responsibility for his
treatment as easily as it could in these
successful challenges, we decline to find a due
process violation on these unique facts.
In reaching this conclusion the Court rejected any
notion that in addition to the due _ process
jurisprudence, Judge Hatter was in any way relying on
his discretionary, supervisory powers in dismissing the
indictment — which would be reviewed only for an
abuse of discretion.
The Court also, in this portion of their decision,
misfocused the concept of psychological coercion on
whether or not Mr. Simpson willingly began an
intimate emotional and sexual relationship with the
government’s informant rather than on whether or not,
given the existence of the government-initiated
relationship, it was exploited in a psychologically
coercive manner to induce Mr. Simpson to get involved
with drugs — which is the truly relevant question.
Finally, the Court overlooked essential and material
facts when it relied on dicta from Judge Hatter to reject
Mr. Simpson’s argument that the Government
“manufactured” the crime underlying this case. At the
time they placed Ms. Miller in Mr. Simpson’s bed, the
government admittedly was relying on nothing more
than “suspicions” and that “the first time that she
[Miller] reported anything that would show his
involvement in narcotics trafficking was mid-Septem-
ber” 1983 — well over a month after her relationship
with him had begun.
Petitions for rehearing or rehearing en banc were
rejected by the Ninth Circuit on June 23, 1987, and this
Petition is being timely filed.
ARGUMENT
I
INTRODUCTION
Due Process inquiries such as those presented in this
case inherently reach this Court without factually
similar precedents upon which to rely; each such case
is inextricably bound to the unique facts of the matter
at hand. Our “Principles of Due Process” are not
subject to being etched in stone, and governmental
behavior that would be acceptable in an emergency
situation may well be intolerable in less exigent
circumstances. But while “bright lines” may be
unavailable to us, the basic parameters of the concept
can and must be established by this Court.
In the dictum that lies at the heart of this litigation,
(Chief) Justice Rehnquist summed up this understand-
ing of the Fifth Amendment in one precise sentence:
‘(W]e may some day be presented with a situation in
which the conduct of law enforcement agents is so
outrageous that due process principles would absolute-
ly bar the government from invoking the judicial
process to obtain a conviction...”
Even the constitutional propriety of a government
agent engaging in intimate sexual activities with a
targeted criminal suspect is not subject to a per se rule
of prohibition, and Petitioner does not seek such a
ruling. It is not difficult to imagine a situation at the
extremes of the philosophical continuum that we know
as Due Process where such activities might be not only
tolerable, but commendable, such as where a brief
sexual liaison could prevent an imminent terrorist
attack.
That, however, is not the sort of situation that was
facing the FBI in their investigation of Darrel Simpson.
A. FACTUAL HISTORY OF THE SIMPSON
“INVESTIGATION”
Sometime in early 1983, FBI Agent Robert Hamer
received a telephone call from a Sergent Neville of the
Royal Canadian Mounted Police. Sergent Neville
wanted to inform the authorities in Los Angeles that an
unidentified informant working with the RCMP had
named a resident of this city, Darrel Simpson, as an
“international heroin trafficker.” No details or
documentation were at any time provided or sought to
support this multiple hearsay statement, and it is
conceded by the government that Mr. Simpson has no
criminal record in either the United States or Canada.
Agent Hamer later agreed that the information was
more accurately described as a “‘suspicion”’ on the part
of the Canadians, and that “up until the latter part of
September [1983] most of the information that we had
gotten was not really enough to warrant indictment,
arrest, whatever...” On August 23, however, he had
placed a unique informant inside Mr. Simpson’s life —
and his bed.
Since the preceding December Agent Hamer had
been working an informant named Helen Miller. Agent
Hamer knew that Ms. Miller was a fugitive from
Canada, a heroin addict and dealer as well as a
professional prostitute. She had been told by Hamer
that she was a target in a major investigation, and when
he and Agent Robert Ross came to her apartment on
the evening of December 22, 1982, she agreed to
become an informant. The agents did not, however, tell
her that the decision not to prosecute her had already
been made.
Throughout her tenure as an informant regarding
this matter, Ms. Miller continued her criminal
behavior. She was arrested for being under the
influence of an opiate, driving while intoxicated and
petty theft; on each occasion the FBI arranged for the
criminal charges to be dropped. She also admitted in
testimony to having continued preying on society as a
prostitute during this investigation. Towards the end of
the operation against Mr. Simpson Ms. Miller was
placed in the Witness Protection Program.
oe
In the Spring of 1983 the FBI first attempted to
involve Ms. Miller in the affairs of Mr. Simpson
through a person named Shackelton in Canada.
Though Miller alleges that Shackelton tried to
introduce her to Simpson for purposes of making a
drug deal, no such introduction, meeting or deal ever
occurred. Shackelton was not called as a witness.
In June of 1983 Agent Hamer compelled production
of Mr. Simpson’s telephone records from the local
phone company. At some point Petitioner Anderson’s
phone records were also supoenaed. There is no
evidence that any of these records revealed any
incident or pattern even remotely connected to
criminality. Likewise following his travel itineraries
had led to no incriminating information.
Agent Hamer agreed that all he had was the
“suspicion” of the Canadians that he had adopted as
his own: He testified that “Other than information
provided by other agencies and other sources,... I
was unaware of his involvement in drug smuggling
activities.”
Further, Agent Ross testified that every single
“‘source’”’ contacted by the FBI — state, local and
federal agencies alike — all came back “negative” to
their inquiries about Mr. Simpson.
In sum, as of August 1983 the government had
nothing but the rank multi-level hearsay from
unknown persons in Canada upon which to justify
their continued investigation of Mr. Simpson. It was
upon this factual basis that Agent Hamer decided to
introduce Helen Miller to Darrel Simpson.
Agent Hamer knew that Mr. Simpson was going to
be arriving at Los Angeles International Airport
S|
during the evening of August 23, 1983 and decided
that it would be a good place for an “accidental”
meeting to take place. They were accompanied by
Karen Eccles, another heroin-user prostitute, who was
a friend of Ms. Miller’s and who had agreed to
cooperate with the FBI in the investigation. According
to Ms. Eccles, Hamer instructed them to “get close” to
Mr. Simpson because he was a “big dealer.” Despite
her earlier attempt to get in touch with him, Ms. Miller
claimed she did not know why she was supposed to
meet Mr. Simpson that evening.
Though the agent claims that both of these ladies
had told him that they knew Mr. Simpson from prior
contacts in Canada, he showed them a photograph of
their target. Nevertheless, he had to direct the women
to him after Mr. Simpson had walked right in front of
them. Claiming to be stranded, the two women
“bumped” into Mr. Simpson and Ms. Miller feigned
having known him from a nightclub in Vancouver some
twenty years earlier. Mr. Simpson agreed to give them
a ride as far as his apartment in West Los Angeles.
There they were joined by Tom Marino, a friend of Mr.
Simpson.
The next day Ms. Miller called Mr. Simpson and
instigated a party for that evening; Ms. Eccles was
going to come along, so Mr. Marino was invited to join.
That night, while Ms. Eccles and Mr. Marino engaged
in sexual relations in one room, Ms. Miller and Mr.
Simpson were behaving in an identical fashion in
another. There was no evidence that the subject of
drugs came up; only sex. With some discrepancies
between the testimony of Miller, Eccles and Hamer,
—_
this was discussed between the three of them when they
met the next day, August 25, 1983.
Between August 24 and Octoberl1, 1983, Mr.
Simpson and Ms. Miller were in constant contact, with
approximately 100 telephone calls between their
residences. They also went to dinner frequently and
socialized on a regular basis. With the knowledge of
the FBI, they also frequently spent their nights
together.
While this was going on, no drug activities of any
sort were reported to the FBI by Ms. Miller. According
to Agent Hamer’s testimony, “The first time that she
reported anything that would show his involvement in
narcotics trafficking was mid-September.” In fact, the
only involvement with drugs on Mr. Simpson’s part are
those transactions that Ms. Miller set up for the FBI
and with the FBI fronting the money, beginning in
October of 1983.
Ms. Miller told Mr. Simpson that she loved him, and
he believed her; he thought he was in love with her too.
When she told him that she was pregnant with his
child, nothing could have made this 60-year old man
happier. When he finally did reluctantly arrange for a
drug transaction, all of the profit — $10,000.00 —
went to her, and Agent Hamer allowed her to keep it.
Helen Miller was a very well paid prostitute for the
FBI.
Days prior to the transaction occurring, Agent Ross,
with the help and approval of the Strike Force
Attorney assigned to the investigation, prepared his
intentionally false and misleading affidavit for the
obviously unnecessary wiretap. While much of that
document is cause for great judicial concern, two items
|)
are of particular note: 1) Agent Ross had Ms. Miller
listed as two separate people, each verifying and
corroborating the other, and 2)months after
“dropping” Ms. Eccles as an informant because they
no longer “trusted” her, she is listed and quoted as a
‘confidential, reliable informant.”
This only summarizes the vast panoply of
information that Judge Hatter was reiying on when he
made his ruling dismissing the case. Additionally, of
course, he had his impressions of the witnesses and
their credibility, and in this case he found the
government’s witnesses lacking in morality and
honesty, while the key witness for the defense, Ms.
Eccles, he found credible and believable.
B. APPLICATION OF DUE PROCESS PRIN-
CIPLES
As noted, etching our “Principles of Due Process” in
stone is an impossible task; in this area of constitutional
jurisprudence there can be no “bright line” rule. ““The
difficulty of defining the phrase ‘due process of law’
has been repeatedly recognized. It has been said that it
would be very difficult, if not impossible, to frame a
definition of the term which would be accurate,
complete, and appropriate under all circumstances,
and would embrace every permissible exertion of
power affecting private rights and exclude such as are
forbidden. That which may, in one setting, constitute a
denial of fundamental fairness, shocking to the
universal sense of justice, and thus violative of due
process, may, in other circumstances and in the light of
other considerations, fall short of such denial.” (16A
Am Jur 2d § 807, citations omitted) In this case,
tm
however, it seems obvious that the means used in
asserting the power of the State were unjustified by the
circumstances at hand, far beyond the moral and
ethical boundaries of what is proper under our
fundamental concepts of fairness and justice.
Every application of due process principles is
particular to the factual situation presented. As in this
case, the facts underlying the constitutional claim are
unique and without precedent. The beauty of the
amendment is in its adaptability: While its exact
boundaries are undefinable, its content varies accord-
ing to specific factual contexts. As Justice Frankfurter
once said, “It is of the very nature of a free society to
advance in its standards of what is deemed reasonable
and right. Representing as it does a living principle,
due process is not confined within a permanent
catalogue of what may at a given time be deemed the
limits or essentials of fundamental rights.” (Wolf v.
Colorado (1949) 338 U.S. 25, 27)
Perhaps the most universal formulation of the
meaning and parameters of the due process clause
appeared in the context of a State’s assertion of its
jurisdiction in a civil case, International Shoe Co. v.
Washington (1945) 326 U.S. 310. The state of
Washington claimed the power to reach beyond her
border to adjudicate the rights of a non-resident
corporation. This Court found that such an assertion of
governmental power, in that case, was factually
justified by the quantity and quality of the contacts
that the non-resident had with the state, and thus the
assertion of power was not violative of the due process
clause, to wit: the traditional notions of fair play and
substantial justice embodied in Fifth Amendment.
—_etos
In the criminal law context there is little precedent
for applying these principles of due process. In United
States v. Russell (1973) 411 U.S. 423, (Chief) Justice
Rehnquist affirmed that a sufficiently outrageous
exercise of power by the government in investigating
and/or generating criminal conduct in violation of
those principles “‘would absolutely bar the government
from invoking the judicial process to obtain a
conviction.” This was confirmed by the Court in
Hampton vy. United States (1976) 425 U.S. 484: A
criminal indictment should be dismissed when the
conduct of government agents has reached a
“demonstrable level of outrageousness.” Judge Hatter,
of course, specifically found that such an intolerable
level of behavior had been reached and amply
demonstrated in this case. The Court of Appeals did
not dispute the outrageousness of the behavior, they
simply found no precedent for such a dismissal on
moral or ethical gounds and refused to create that
precedent.
It is for this Court to now declare whether Judge
Hatter correctly applied his constitutional authority to
bar this prosecution from proceeding, or whether the
Court of Appeals correctly reversed him because no
such factual setting has ever before arisen. If
“pimping”’ a prostitute who is also an intravenous drug
addict (the two groups of persons at the highest risk of
having AIDS!) into the life of a mere suspect is not
below the standards that we demand of our
government’s agents, what behavior would be beyond
the pale in our undercover operations? Petitioner
believes that this sort of tawdry, immoral and
dangerous scheming by zealots within our law
—)
enforcement agencies will not be tolerated by this
Court or this nation.
The boundaries of covert, undercover operations y
our police agents is a subject of great importance that
this Court has not addressed in many years. Congress
examined this area, and in 1984 the Subcommittee on
Civil and Constitutional Rights of the Committee on
the Judiciary of the House of Representatives (98th
Congress, Second Session) issued an “Executive
Summary of [the] Report on FBI Undercover
Operations” which reveals a great concern for the
methodologies being increasingly utilized by the
agency. Their review demonstrated that “many if not
all of the potential dangers inherent in undercover
operations are being realized.””’ Among other findings,
the Congressional investigation revealed the following
activities and attitudes:
In principle, the safeguards and [Guidelines
on FBI Undercover Operations, effective
January 5, 1981] should afford protection
against these dangers, and the sincerity and
good faith of the top Department of Justice
and FBI officials responsible for their
promulgation are not in doubt. Yet, the
guidelines and safeguards [have] proven to be
ineffective because they have ‘come to be
applied largely ritualistically with acquies-
cence to whatever is asked for, within broad
extremes.’
The approval process in practice is con-
ducted without a critical review of the
evidence; with no tolerance for internal
dissent; and with little or no sensitivity to the
=, =
concerns which prompted the promulgation
of the safeguards and guidelines. While the
field may be closest to the evidence, the lesson
of [Operation] Corkscrew is that that proxim-
ity to an investigation may render the
investigators and prosecutors blind to its
short-comings.
nae
The desire to protect the reputation of the
Bureau and individual agents also has created
a ‘stonewalling’ attitude, which conflicts with
the public’s right to assess whether or not the
letter and spirit of the safeguards and
guidelines are being honored.
eee
Evidence of the Bureau’s insensitivity, if
not hostility, to the purposes of the guidelines
is also evident in the process of redefinition,
both formal and informal, which has occurred
in interpreting the guidelines. These institu-
tional actions have the effect of broadening
field discretion at the expense of the rules’
requirements.
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The result of this process of redefinition
and word substitution is to avoid compliance
with guidelines or other officially promulgat-
ed standards in precisely those situations in
which they are most needed, eg., for
informants whose credibility or reliability
cannot be demonstrated and who therefore
would not meet the requirements.
— oo
Because the technique on occasion pro-
duces an impressive array of arrests and
convictions, it is viewed both by the public and
law enforcement community as_ highly
effective. The publicity and prestige accorded
successful undercover operations provide
powerful incentives for all involved to extend
the technique into new areas and to continue
to plan and recommend additional operations.
These incentives, coupled with the sincere
suspicion of the agents that criminal activity
is occurring and belief that “they are on the
right track,” together with the need for
vindication, not only compel them to continue
the operation, but provide powerful disincen-
tives for supervisors or others to terminate the
operation. No one wants to stand in the way
of or impede the investigation; no one wants
to be characterized as “soft” on law
enforcement.
It is precisely because of this enthusiasm
for the technique, however, that it is
unrealistic to expect the FBI and the
Department of Justice to meaningfully regu-
late the conduct of undercover operations in a
manner which will alleviate the dangers
outlined in this report and observed by the
Subcommittee. (Summary at pages 23-25)
The “investigation” of Darrel Simpson was occur-
ring at the same time that this report was being written,
and the subcommittee was obviously correct in its
concern that this sort of operation might indeed be
going on. It should also be noted that in the face of the
|
instant challenge to their operation the Government
did not produce any evidence that they had either
sought or obtained any of the approvals called for in
the guidelines. It is beyond belief that any of the
supervisors in the Department of Justice would have
approved of Helen Miller, particularly when, after a
month of sleeping with him and being his constant
companion, not a shred of evidence had appeared to
support the suspicion that Darrel Simpson had
anything to do with narcotics trafficking.
Petitioner does not take umbrage with the proposi-
tion that faced with the false suspicions voiced by the
Canadian authorities, the FBI undertook an investiga-
tion of his activites. As the pre-Helen Miller
investigation revealed, he had nothing to hide or be
concerned about. Even the doubts expressed by Judge
Hatter and the Court of Appeals about his past do not
shake his faith in both himself and the essential fairness
of our system of justice, although it should be noted
that “predisposition” plays a minor role in a due
process challenge such as put forward herein; if this
case were to ever be placed before a jury that concept
would obviously be the heart of the entrapment defense
proffered.
Due Process was violated in several ways in this
proceeding. As stated by the Ninth Circuit in Greene vy.
United States (1971) 454 F.2d 783, “[T]he government
may [not] involve itself so directly and continuously
over such a long period of time in the creation and
maintenance of criminal operations, and yet prosecute
its collaborators.” Only after an excessive amount of
involvement in the life of Mr. Simpson was Ms. Miller
able, using the FBI’s “front money,” to involve him in
—<
her schemes to make some quick money in the drug
trade.
The unwarranted invasion of a person’s zone of
privacy is equally a violation of the Fifth Amendment
as it is the Fourth Amendment (Katz v. United States
(1967) 389 U.S. 347), and in this case the invasion was
not only of a person’s home, the government actuaily
planted a “‘bug”’ in his bed! Both Griswold v. Connecticut
(1965) 381 U.S. 479, and Eisenstadt v. Baird (1972) 405
U.S. 438, firmly established for all time, one would
have thought, that the government had no business
inside the bedrooms of the American People. Without
preper judicial authorization, a more repugnant
violation of Justice Brandeis’ vision, that “‘decency,
security and liberty alike demand that government
officials shall be subjected to the same rules of conduct
that are commands to the citizen” is beyond the
imagination. (Olmstead v. United States (1928) 227 U.S.
436)
Finally, though specifically addressed to issues not
now before the Court, it must be stressed that Judge
Hatter made findings that in their zeal to “get their
man” the federal agents in this case, sworn to uphold
the Constitution and the laws of the land, presented a
federal Judge with an affidavit “artfully drafted with
the intent to mislead” him and gain authorization that
they were not entitled to, their purpose being to further
invade the privacy rights of Mr. Simpson without
justification.
This course of conduct by the government is
outrageous by definition.
When the bounds of propriety, morality and ethics
are sO arrogantly exceeded by fieid agents in a
rcs, |
misguided attempt to “get” someone that they have
targeted, all Americans must become concerned
indeed.
The bounds of Due Process of Law were egregiously
exceeded in this case, and it must become a concern of
this Honorable Court.
II
THE DUE PROCESS CLAUSE AS EXCLU-
SIONARY RULE: AN ANALYTICAL FRAME-
WORK
A Defendant’s allegations of “Outrageous Govern-
mental Conduct” address violations of Constitutional
principles and seek the exclusion of matters from our
courtrooms, yet the existing jurisprudence on the
subject speaks in terms of a “defense,” not an
“exclusionary rule.” The apparent reason for this is
that unlike the typical exclusionary rule, this rule of
exclusion does not address individual items of
evidence, it excludes the entirety of a case sought to be
presented to a court. It transforms the Due Process
Clause into an “ultimate” exclusionary rule and
“bar(s) the Government from invoking the judicial
process to obtain a conviction.” (Russell, supra, 411 US.
423) The instant case presents this Court with an
opportunity to provide a framework within which such
motions are to be presented and analyzed.
Insofar as the governmental misconduct concept
prevents a conviction in a criminal case, it is indeed a
“constitutional defense”’ available to a defendant. Yet it
is not a traditional “defense,” like entrapment, which is
presented to a finder of fact at trial. These cases are
presented through pretrial motions wherein a Court is
obligated to apply “principles of due process” to a
given set of factual circumstances.
When the Court established the use of an
exclusionary rule to enforce the commands of the
Fourth Amendment (Weeks v. United States, 232 U.S.
383 (1914)) it did so to condemn the illegal practices of
government agents, because “To sustain [unlawful
governmental activities] would be to affirm by judicial
decision a manifest neglect, if not an open defiance, of
the prohibitions of the Constitution, intended for the
protection of the people against such unauthorized
action.” The District Court condemned the behavior of
the government in this case for precisely the same
reasons: “‘There must be protection of the Constitution
and its rights.” Egregious constitutional violations by
government agents are not to be tolerated, and as a
matter “judicial integrity” (Elkins v. United States 364
U.S. 206 (1960)), the fruits must be excluded from the
Court.
Mapp v. Ohio 367 U.S. 643 (1961) made clear that the
rule was also a “deterrent safeguard without insistance
upon which the Fourth Amendment would have been
reduced to a ‘form of words’.” Similarly, in making his
ruling in this case Judge Hatter intended to send a
“‘message to the government that this kind of activity
will not be tolerated.”
Justice Brandeis, in his famous dissent in Olmstead v.
United States (227 U.S. 436 (1928)), argued that the
exclusionary rule of the Fourth Amendment should be
enforced against government wiretaps because
a.
Decency, security and liberty alike demand
that government officials shall be subjected to
the same rules of conduct that are commands
to the citizen. In a government of laws,
existence of the government will be imperilled
if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent
teacher. For good or ill, it teaches the whole
people by its example. Crime is contagious. If
the government becomes a law breaker, it
breeds contempt for law; it invites every man
to become a law unto himself; it invites
anarchy. To declare that in the administration
of the criminal law the end justifies the means
— to declare that the government may
commit crimes in order to secure the
conviction of a private criminal — would
being a terrible retribution. Against that
pernicious doctrine this Court should reso-
lutely set its face.
This sentiment has, of course, since been accepted by
a majority of the Court, and the American People, as a
fundamental principle of our law. It is precisely why
the case against Messers Simpson, Anderson and
Freeman was excluded from the courtroom of the
Honorable Terry J. Hatter.
That the Fifth Amendment can be used as the basis
of an exclusionary rule is beyond dispute: The
Amendment’s clause guaranteeing the fundamental
right against self-incrimination (“No person... shall
be compelled in any criminal case to be a witness
against himself”) has long been held to establish such a
rule of exclusion: Any siatements obtained by the
a an
government in violation of the guarantee, as well as
any “fruits” arising from the initial illegality, are
excluded. That the same reasoning should apply to the
very next phrase of the same amendment is nothing
less than to be expected.
An integral part of this analysis is that the problems
of “‘standing” are obviated. Though some lower courts
have stated that, like in Fourth Amendment jurispru-
dence, only the direct targets of outrageous govern-
mental misconduct have “standing” to object to its
fruits, this analysis makes clear that the entire
prosecution is infected and excluded from the courts.
Firmly based in_- established Constitutional
precedent, therefore, it is suggested that the Fifth
Amendment “defense” of “outrageous government
conduct” be considered and analyzed as a rule of
exclusion: When allegations of criminai behavior are
generated by government agents through behavior
found to be violative of the fundamental principles
inherent in the due process clause, the resulting
prosecution shall, in its entirety, be excluded from the
Courts to give meaning to the guarantee and to protect
the integrity of the judiciary.
CONCLUSION
This case presents several questions of broad public
policy that are ripe for consideration by this Honorable
Court. Of particular concern, and in particular need,
are directions to law enforcement agents about the
parameters of Due Process that cannot and shall not be
transgressed in their zealous pursuit of crime and
suspected criminals. Even as he comes before this
a,
Court, Darrel Simpson is a presumptively innocent
individual, and before the government strips another
individual of his inocence, dignity and privacy as they
did to him, this Court must give guidance. As a bonus,
since this case arises directly from pre-trial motions,
the Court has an opportunity to clearly give directions
to the lower courts on how to proceed with and analyze
the rare case such as is presented by these proceedings.
Our traditional notions of fair play and substantial
justice have been trampled by the obnoxious, unwar-
ranted and dangerous activities of the government in
this case, and Petitioner urges this Honorable Court to
grant the instant Petition for a Writ of Certiorari to
review the opinion of the Ninth Circuit Court of
Appeals.
Respectfully submitted,
Pa AL.
Aoshua C. Needle
Attorney for
Darrel Paterson Simpson
an, aan
JOINDER IN PETITION
Robert Macriner Anderson, by and through his
counsel of record, hereby joins in requesting that the
instant Petition filed by Darrel Simpson be accepted
and the writ of certiorari be issued.
PL ea
J. Brendan O’Neill
Attorney for
Robert Macriner Anderson
APPENDIX A
=
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 84-5301
Vv. D.C. No.
DARREL PATERSON SIMPSON, r — CR-84-0145-TJH
ROBERT MACRINER ANDERSON, and OPINION
JAMES ROY FREEMAN,
Defendants-Appellees.
Argued and Submitted
April 11, 1986—Pasadena, California
Filed April 3, 1987
Before: Procter Hug, Jr., William A. Norris and
Cynthia Holcomb Hall, Circuit Judges.
Opinion by Judge Norris
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
SUMMARY
Criminal Procedure
Appeal from a district court’s orders suppressing wiretap
evidence and dismissing an indictment on due process
grounds. Affirmed in part and reversed in part.
In 1983 the FBI employed Helen Miller as an informant in
an investigation of Darrell Simpson (Simpson), who was sus-
initiaited
poe, ean
UNITED STATES v. SIMPSON
pected of being a heroin dealer. Miller was known to the FBI
as a prostitute, a heroin user, and a fugitive from Canadian
drug charges. Miller and a fellow informant posed as stranded
travelers at the Los Angeles Airport, and enticed Simpson
into giving them a ride. They ended up at Simpson’s apart-
ment where they partied with Simpson and a friend. Miller
and Simpson became sexually intimate. Miller introduced
Simpson to FBI undercover agents who she said were inter-
ested in buying heroin. After a deal was consummated, Simp-
son and two co-defendants were arrested and indicted on
various drug charges. After an evidentiary hearing, the dis-
trict court dismissed the indictment on the ground that the
FBI’s conduct in recruiting and using Miller as an informant
was so Offensive that it violated the due process clause of the
Fifth Amendment, in that the conduct, taken as a whole. was
outrageous.
He cited (1) the government’s manipulation of Miller into
becoming an informant, (2) the government’s continued
employment of Miller despite her known status as a heroin
addict and prostitute, and despite her numerous arrests, and
(3) the government’s continued use of Miller as an informant
after learning of her sexual involvement with Simpson. The
judge also suppressed evidence obtained from FBI wiretaps
of Simpson’s home and public telephones he regularly used
because the supporting affidavit contained both material mis-
representations and omissions.
[1] Dicta in United States v. Russell, 411 U.S. 423 (1973),
left the door open to a due process claim when the conduct of
law enforcement officers is so grossly shocking and so outra-
geous as to violate the universal sense of justice. The due pro-
cess channel which Russell kept open is a most narrow one,
however. [2] The government’s conduct in continuing to use
Miller as an informant after learning of her sexual involve-
ment with Simpson was not so shocking as to violate the due
process clause. [3] The outrageous conduct doctrine bars
prosecution of defendants in that slim category of cases in
poe,
UNITED STATES v. SIMPSON
which the police have been brutal, employing physical or psy-
chological coercion against the defendant. [4] Simpson may
have suffered severe emotional trauma and felt stripped of his
dignity upon learning that Miller’s apparent affection for him
was contrived, but because Miller’s treatment falls short of
the brutality and coercion underlying previous successful out-
rageous conduct chailenges, and the government cannot be
assigned responsibilit, .or his treatment as easily as it could
other cases, a due process violation is not found on these
unique facts. [5] The deceptive creation and/or exploitation
of an intimate relationship does not exceed the boundary of
permissible law enforcement tactics.
[6] Simpson’s theory that the use of sex in creating the
deceptive relationship rendered his treatment outrageous as
a matter of law presents great difficulties. In winning a sus-
pect’s confidence, an informant must make overtures of
friendship and trust and must enjoy a great deal of freedom
in deciding how best to establish a rapport with the suspect,
and there is no principled way to identify a fixed point along
the continuum from casual physical contact to intense physi-
cal bonding beyond which the relationship becomes
“shocking” when entertained by an informant. [7] The court
declines the invitation of Simpson and amicus curiae to inter-
pret the due process clause as prohibiting the government
from using informants who establish emotionally intimate, as
distinguished from purely physical, sexual relationships with
their suspects. [8] Also, in applying the outrageous conduct
doctrine to the facts here, it is concluded that any outrage at
Miller’s deportment must be tempered by the fact that it is
not as readily attributable to the government as the conduct
held to violate due process in previous cases. [9] While the
FBi’s hands were not entirely clean, [10] the government’s
passive tolerance here of a private informant’s questionable
conduct is less egregious than the conscious direction of gov-
ernment agents typically present in outrageous conduct chal-
lenges.
—
UNITED STATES v. SiMPSON
[11] Even accepting the Judge’s conclusion that the FBI
manipulated Miller into becoming an informant, this pro-
vides no justification for ruling that this raises due process
concerns about the investigation of Simpson, and provides no
basis for dismissing the indictment on due process grounds.
[12] The court found no authority supporting the defendants’
claim that the continued use of an informant known to be
committing unrelated crimes without the government’s urg-
ing Or approval raises due process concerns. [13] Simpson’s
contention that the FBI’s conduct violated due process as
measured by the “government-manufactured crime” test is
also rejected. {14] The district court’s order dismissing the
indictment on due process grounds is reversed.
[15] Given the emphasis on Simpson’s insulation from
potential informants in the affidavit in support of a wiretap.
and the affidavit’s portrayal of Miller as an innocent, unin-
volved eavesdropper, the court concluded that the omissions
created the illusion of necessity for the wiretap. [16] If the full
details about Miller’s penetration into Simpson’s activities
were known to the issuing judge, a reasonable district court
judge could have denied the application because necessity
had not been shown. [17] The order suppressing the wiretap
evidence is affirmed.
COUNSEL
J. Brendan O’Neill and Joshua C. Needle, Santa Monica, Cal-
ifornia; and Donald Etra, Charles Pereyra-Suarez. Joan
Howarth, Paul Hoffman, Los Angeles, California, for the
appellees.
James D. Henderson and D. Blair Watson, Los Angeles, Cali-
fornia, for the appellant.
Luis S. Katz, San Diego, California, Ephraim Margolin. Los
Angeles, California, for the amicus.
— { a
UNITED STATES v. SIMPSON
OPINION
NORRIS, Circuit Judge:
In 1983 the FBI employed Helen Miller as an informant in
an investigation of defendant Darrel Simpson, then a sus-
pected heroin dealer. At that time, Miller was known by the
FBI to be a prostitute, a heroin user, and a fugitive from
Canadian drug charges. Posing as stranded travelers at the
Los Angeles International Airport, Miller and a fellow infor-
mant, Karen Eccles, enticed Simpson into giving them a ride
into town. They ended up at Simpson’s apartment where they
partied with Simpson and a friend, Tom Marino. Shortly
thereafter Miller and Simpson became sexually intimate. In
due course Miller introduced Simpson to “friends” who she
said were interested in buying heroin. The “friends” were in
fact FBI undercover agents. After a deal went down, Simpson
and his two co-defendants, Robert Anderson and James Free-
man, were arrested and indicted on various drug charges.
After an eight-day evidentiary hearing, the district court
dismissed the indictment on the ground that the FBI's con-
duct in recruiting and using Miller as an informant was so
offensive that it violated the due process clause of the Fifth
Amendment. In his ruling, Judge Hatter relied upon Chief
Justice Rehnquist’s oft-quoted dictum in United Staies y.
Russell, 411 U.S. 423, 431-32 (1973), that the Supreme Court
“may some day be presented with a situation in which the
conduct of law enforcement agents is so outrageous that due
process principles would absolutely bar the government from
invoking judicial processes to obtain aconviction....” Judge
Hatter found that the following conduct, taken as a whole.
was Outrageous: first, “the Government’s manipulation of
Helen Miller into becoming an informant;” second, “the
Government’s continued employment of Miller despite her
known status as a heroin addict and prostitute, and despite
EE Se
|
UNITED STATES v. SIMPSON
her numerous arrests;” and third, “the Government’s contin-
ued use of Miller as an informant after learning of her sexual
involvement with Darrel Simpson.” Findings of Fact and
Conclusions of Law Dismissing the Indictment on Due Process
Grounds (“Findings”), at 3. Judge Hatter concluded that the
“Government cannot be permitted to stoop to these depths to
investigate suspected criminal offenders” and that the gov-
ernment must be “den[ied] the fruits of its heinous acts.” /d.
at 4.
Judge Hatter also suppressed evidence obtained from FBI
wiretaps of Simpson’s home telephone and several public
telephones he regularly used. Judge Hatter found that the aff-
davit supporting the wiretap application contained both
material misrepresentations and omissions and that, when
corrected, the affidavit failed to indicate that wiretapping was
“necessary” as required by 18 U.S.C. § 2518.
The dismissal of the indictment is a final decision appeal-
able under 28 U.S.C. § 1291.’ We reverse the order dismiss-
ing the indictment, but we affirm the order suppressing the
wiretap evidence.
THE DUE PROCESS ISSUE
[1] We agree with Judge Hatter that Chief Justice Rehn-
quist’s dictum in Russell left the door open to a due process
claim when the conduct of law enforcement officers is “ ‘so
grossly shocking and so outrageous as to violate the universal
sense of justice.’ ” United States v. Ramirez, 710 F.2d 535,
1We reject the defendants’ argument that this court lacks jurisdiction
because the government’s notice of appeal was not timely. The government
filed a timely motion for reconsideration which tolls the time period for fil-
ing a notice of appeal. 18 U.S.C. § 3731 (1982); see United States v. Jones,
608 F.2d 386, 390 (9th Cir. 1979).
yt, on
UNITED STATES v. SIMPSON
539 (9th Cir. 1983) ( quoting United States v. Ryan, 548 F.2d
782, 789 (9th Cir.), cert. denied, 430 U.S. 965 (1977)). See
Moran v. Burbine, 106 S. Ct. 1135, 1147 (1986) (“We do not
question that [in certain circumstances] ... police deception
might rise to a level of a due process violation.”). Our circuit
has continued to entertain complaints by defendants that
their outrageous treatment by law enforcement officers war-
rants dismissal of their indictment. See, e.g., United States v.
Bogart, 783 F.2d 1428, 1431-33 (9th Cir.) (discussing history
of the doctrine’s evolution and application in the Ninth Cir-
cuit), vacated on other grounds with respect to one defendant
sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.
1986). However, we have acknowledged that “the due process
channel which Russell] kept open is a most narrow one.”
Ryan, 548 F.2d at 789.
Three discrete aspects of the FBI’s investigation of Simp-
son prompted Judge Hatter to conclude that when “taken as
a whole” the FBI conduct here violated due process: (1) the
FBI's “manipulation” of Miller into becoming an informant;
(2) the FBI’s continued use of Miller as an informant after
learning that she had become sexually involved with Simp-
son; and (3) the FBI’s continued use of her after learning that
she was still involved in unrelated criminal activity. After
reviewing each of these aspects of the FBI’s conduct. we con-
clude that the conduct was not so outrageous as to justify dis-
missal of the indictment on due process grounds.’
We review the dismissal of an indictment on due process grounds de
novo. United v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 107
S. Ct. 233 (1986). Defendants suggest that “[t]o the extent that Judge Hat-
ter’s dismissal was based on the court’s inherent supervisory powers, the
standard of review is abuse of discretion.” Appellees’ Joint Brief, at 32. If
Judge Hatter had invoked the supervisory power to dismiss the indictment,
then abuse of discretion would indeed be the applicable standard of review.
See United States v. Sears, Roebuck and Co., 719 F.2d 1386, 1395 n.2 (9th
Cir. 1983) (Norris, J., dissenting in part), cert. denied, 465 U.S. 1079
(1984); cf In re Kiefaber, 774 F.2d 969, 974 (9th Cir. 1985) (exercise of
supervisory power to quash grand jury subpoena reviewed for abuse of dis-
cretion). However, Judge Hatter did not invoke the court’s supervisory
power; rather, he explicitly predicated dismissal upon the due process
clause. Findings, at 1.
meer
UNITED STATES v. SIMPSON
A
THE CONTINUED USE OF AN INFORMANT WHO
HAS SEX WITH THE SUSPECT
[2] We consider first whether the FBI’s continued use of
Miller as an informant after learning of her sexual involve-
ment with Simpson raises due process concerns. Judge Hatter
found that Miller, acting on instruction by the FBI, pretended
to be a close personal friend of Simpson’s for a period of over
five months. During that time Miller had sex with him on a
regular basis.’ Findings, at 2-3. Simpson argues that Miller's
use of sex to deceive him into believing she was an intimate
friend just so she could lure him into selling heroin to under-
cover FBI agents constituted an outrageous invasion of his
constitutionally protected realms of privacy and autonomy.
Aithough we do not necessarily condone this investigatory
tactic, we hold that the government’s conduct was not so
shocking as to violate the due process clause.
[3] We recognized in Bogart that the outrageous conduct
doctrine bars prosecution of defendants in “that slim cate-
gory of cases in which the police have been brutal, emploving
physical or psychological coercion against the defendant.”
783 F.2d at 1435; see also United States v. Kelly, 707 F.2d
1460, 1476 n.13 (D.C. Cir) (per curiam) (citing cases), cert.
denied, 464 U.S. 908 (1983). This case law evolved from the
Russell Court’s citation to Rochin v. California, 342 U.S. 165
(1952), as an example of activity which shocks the con-
science. 411 U.S. at 432. In Rochin, police officers broke into
the defendant’s bedroom, attempted to pull drug capsules
from his throat, and finally forcibly pumped his stomach to
3Both Miller and Simpson admit that they engaged in sexual foreplay,
but the testimony is in conflict as to whether they also engaged in sexual
intercourse. Judge Hatter found it unnecessary to resolve this question in
the testimony, and we too find the precise details of their sexual relation-
ship immaterial to our holding.
—
UNITED STATES v. SIMPSON
retrieve the capsules. The Supreme Court found these law
enforcement methods “too close to the rack and the screw to
permit of constitutional differentiation.” 342 U.S. at 172.
Relying on Rochin, we similarly found that the government's
conduct violated due process when border patrol officers forc-
ibly removed narcotics packets from a defendant’s rectum
while he was handcuffed and held spreadeagled across the
table by other officers. Huguez v. United States, 406 F.2d 366,
381 (9th Cir. 1968). In contrast to these cases, we have
rejected due process challenges to highly intrusive searches
for contraband secreted in body cavities and to forced physi-
cal treatment to recover swallowed contraband in contexts
where these actions were undertaken without “coercion, vio-
lence, or brutality to the person.” /rvine v. California, 347
U.S. 128, 133 (1954) (distinguishing Rochin); see, e.g., Blefare
v. United States, 362 F.2d 870 (9th Cir. 1966) (rejecting outra-
geous conduct challenge to insertion of tube into defendant’s
stomach to force him to vomit swallowed drug capsules when
pain was limited and procedure was performed by licensed
physician); see also Kelly, 707 F.2d at 1476 (“The requisite
level of outrageousness ... is not established merely upon a
showing of obnoxious behavior or even flagrant misconduct
on the part of the police; [due process] is not transgressed
absent ‘coercion, violence or brutality to the person.” ”) (quot-
ing /rvine, 347 U.S. at 132-33).
[4] We acknowledge that Simpson may have suffered severe
emotional trauma and felt stripped of his dignity upon learn-
ing that Miller’s apparent affection for him was contrived and
designed to hasten his downfall. However, because Simpson's
treatment by Miller falls short of the brutality and coercion
underlying previous successful outrageous conduct chal-
lenges and the government cannot be assigned responsibility
for his treatment as easily as it could in these successful chal-
lenges, we decline to find a due process violation on these
unique facts.
[5] First, the deceptive creation and/or exploitation of an
intimate relationship does not exceed the boundary of per-
—A10—
UNITED STATES Vv. SIMPSON
missible law enforcement tactics. We have recognized that
“the government may use artifice and strategem to ferret out
criminal activity,” Ramirez, 710 F.2d at 541, and to that end
informants must be permitted to use deceit by “assum[ing]
identities that will be convincing to the criminal elements
they have to deal with.” United States v. Marcello, 731 F.2d
1354, 1357 (9th Cir. 1984). The betrayed suspect might feel
foolish or insulted but cannot complain of government
impropriety based on the use of deception alone. And, Simp-
son does not claim that he was physically or psychologically
coerced into developing a close relationship with her. Indeed,
as evidenced by the ease with which Miller befriended Simp-
son upon his arrival at the airport, Simpson seems to have
been quite willing to become sexually and emotionally
involved with her. The due process clause does not protect
Simpson from voluntarily reposing his trust in one who turns
Out to be unworthy of it.
[6] Second, we have great difficulty with Simpson’s theory
that Miller’s use of sex in creating the deceptive relationship
rendered his treatment outrageous as a matter of law. To win
a suspect’s confidence, an informant must make overtures of
friendship and trust and must enjoy a great deal of freedom
in deciding how best to establish a rapport with the suspect.
In a particular case the informant might perceive a need to
establish a physical as well as emotional bond with the
suspect. We see no principled way to identify a fixed point
along the continuum from casual physical contact to intense
physical bonding beyond which the relationship becomes
“shocking” when entertained by an informant. Rather, any
attempt to distinguish between holding hands, hugging, kiss-
ing, engaging in sexual foreplay, and having sexual inter-
course On a regular basis in order to decide when an
informant has “gone too far” would require us to draw upon
our peculiarly personal notions of human sexuality and social
mores. The Supreme Court has rightly indicated that the out-
rageous conduct doctrine ought not be applied in so subjec-
tive a manner, admonishing us not to condemn or condone
—Ali—
UNITED STATES v. SIMPSON
government behavior by “draw[ing] on our merely personal
and private notions and disregard[ing] the limits that bind
judges in their judicial function.” Rochin, 342 U.S. at 170.
[7] Simpson and amicus curiae American Civil Liberties
Union suggest that even if Miller’s deceptive use of sex is not
shocking by itself, her illusory cultivation of emotional inti-
macy coupled with her sexual charade so magnified the inva-
sion of Simpson’s privacy and autonomy interests that
prosecution should be barred. See Separate Brief of Appellee
Simpson, at 6; Brief of Amicus Curiae, The American Civil
Liberties Union, at 34-37 & n.25. However, we refuse to draw
fine lines based on the level of emotional intimacy inhering in
a particular informant-suspect relationship. First, we note
that law enforcement agents may recruit family members as
informants to help investigate their relatives without violat-
ing the due process clause. See, e.g., United States v. Penn, 647
F.2d 876, 880-84 (9th Cir. 1980) (en banc) (due process does
not bar conviction based upon evidence seized when agent
offered five-year-old boy five dollars to indicate where boy’s
mother had hidden cache of heroin). Exploiting an emotion-
ally intimate relationship between lovers seems no more egre-
gious than exploiting an emotionally intimate relationship
between family members. Second, courts are not well
equipped to assess the degree of intimacy perceived by partic-
ular suspects. The proposed focus on intimacy would there-
fore exacerbate the line-drawing difficulties discussed
previously, such that individual judicial determinations that
sexual relationships were sufficiently intimate to bar prosecu-
tion would lack the “universality” of condemnation required
by the due process clause. Accordingly, we decline the invita-
tion to interpret the due process clause as prohibiting the gov-
ernment from using informants who establish emotionally
intimate, as distinguished from purely physical, sexual rela-
tionships with their suspects.
[8] In applying the outrageous conduct doctrine to the facts
of this case, we must focus not only on the acceptability of
—A12—
UNITED STATES v. SIMPSON
Miller’s sexual activity but also on the degree of government
culpability for Simpson’s treatment. We conclude that any
outrage at Miller’s deportment must be tempered by the fact
that it is not as readily attributable to the government as the
conduct held to violate due process in previous cases. First,
Simpson cannot contend that Miller’s status as a paid infor-
mant makes her every decision about how to establish rap-
port with the suspect attributable to the FBI. This argument
is squarely foreclosed by United States v. Prairie, 572 F.2d
1316 (9th Cir. 1978), in which we held there was no due pro-
cess violation when, unbeknownst to the government, a paid
informant had sex with her suspect. In Prairie, the informant
was a known prostitute, but she “was neither paid nor asked
by the agents to establish any particular relationship with [the
suspect] and, in any event, her official role was limited to that
of introducing a willing seller of narcotics to a willing
purchaser.” 572 F.2d at 1319. We heid on these facts that
there could be no due process violation because the infor-
mant’s use of sex in dealing with her suspect was not attribut-
able to the government. Jd. See aiso Ryan, 548 F.2d at 791
(private informant’s interference with a suspect’s attorney-
client relationship was not attributable to government where
there was no “evidence that [the informant] consulted with
state agents before [interfering] or that the state was in any
manner involved in this [interference]”). As in Prairie, the
facts as found by Judge Hatter indicate that the FBI did noth-
ing to encourage the informant to use sex in carrying out her
assignment. Indeed, Judge Hatter explicitly found that agent
Hamer repeatedly “instructed Miller ... not to get sexually
involved.” 10 Reporter’s Transcript (“R.T.”) at 47. Therefore
Miller’s initial decision to establish a deceptive sexual and
emotional relationship cannot be used to characterize the
government’s conduct in this case as outrageous.
[9] To be sure, Judge Hatter found that the FBI’s hands
were not entirely clean. At some point the FBI became aware
of Miller’s sexual involvement with Simpson, and though
agent Hamer continued to warn her to refrain from further
—A13—
UNITED STATES v. SIMPSON
sexual activity, Judge Hatter found that Hamer probably
expected her to continue. 10 R.T. at 47. The FBI deliberately
closed its eyes to Miller’s ongoing conduct, 10 R.T. at 46, and
did not terminate her involvement in the investigation.
[10] Nevertheless, we consider the government’s passive
tolerance here of a private informant’s questionable conduct
to be less egregious than the conscious direction of govern-
ment agents typically present in outrageous conduct chal-
lenges. Requiring the FBI to pull out just as an informant’s
efforts are coming to fruition merely because she engages in
sexual activity on her own initiative would seriously under-
mine the FBI’s ability to sustain a carefully planned long-
term investigation into secretive criminal enterprises. We
hold that on the unique facts before us, taking into account
both our reluctance to conclude that Miller’s actions were so
out of step with universal contemporary sexual norms that
they “shocked the conscience” and the FBI’s somewhat
diminished culpability for Miller’s sexual activity, the gov-
ernment’s conduct was not so outrageous as to bar prosecu-
tion of the defendants.‘
We recognize that many people in our society may find the
deceptive use of sex in law enforcement to be morally offen-
sive. Nonetheless, “in order to apprehend those engaged in
serious crime, government agents may lawfully use methods
“We need not decide at this time whether the use of sex as a law enforce-
ment tool would “shock the conscience” under circumstances where the
government is clearly responsible, as would be the case if Miller had been
a law enforcement officer rather than a paid informant. We note, however,
that state courts have permitted law enforcement officers to use sex deceit-
fully to gather information when the suspected crime was prostitution. See,
e.g., State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985) (rejecting an outra-
geous conduct challenge to deceitful use of sex by a civilian volunteer acting
at behest of police investigating a prostitution ring); Anchorage v. Flana-
gan, 649 P.2d 957 (Alaska Ct. App. 1982) (same for use of sex by under-
cover officer); State v. Putnam, 31 Wash. App. 156, 639 P.2d 858 (1982)
(same for use of sex by civilian authorized by police to turn tricks to gather
evidence).
—Al4—
UNITED STATES v. SIMPSON
that are neither appealing nor moral if judged by abstract
norms of decency,” Bogart, 783 F.2d at 1438, and therefore
the due process clause does not “give the federal judiciary a
‘chancellor’s foot’ veto over law enforcement practices of
which it [does] not approve.” Russell, 411 U.S. at 435.
Rather, our Constitution leaves it to the political branches of
government to decide whether to regulate law enforcement
conduct which may “offend some fastidious squeamishness
or private sentimentalism about combatting crime too
energetically,” Rochin, 342 U.S. at 172, but which is not anti-
thetical to fundamental notions of due process.
THE “MANIPULATION” OF MILLER INTO
BECOMING AN INFORMANT
Judge Hatter also focused upon “the Government’s manip-
ulation of Helen Miller into becoming an informant” in rul-
ing that the government’s conduct towards Simpson was so
Outrageous as to violate due process.* Findings, at 3. Although
he remarked that he was “offended” by the sight of Helen Mil-
ler, “a tragic figure,” and that “the Government has made her
even more tragic” by “plac{ing] herin...aset of factual situ-
ations that would bring even more stress to bear [on her],” 10
R.T. at 45-46, Judge Hatter made no detailed findings in sup-
port of his “manipulation” conclusion. The defendants and
the American Civil Liberties Union suggest that Judge Hat-
ter’s “manipulation” conclusion was based on evidence that
the FBI promised to ease off its investigation into her own
narcotics activities in exchange for her help and that the FBI
“made her continually dependent on them through their ini-
‘Judge Hatter made no finding or suggestion that the government manip-
ulated or coerced Miller into having sex with Simpson or that she was paid
for doing so. Rather, Judge Hatter focused solely on the means used to
recruit Miller as an informant, well before the FBI asked her to participate
in its investigation of Simpson.
—A15—
UNITED STATES v. SIMPSON
tial and continued concern and support for her, both mone-
tarily and emotionally.” Brief of Amicus Curiae American
Civil Liberties Union, at 26.
[11] Even accepting the defendants’ explanation of Judge
Hatter’s conclusion,® we find no justification for ruling that
the FBI’s treatment of Miller raises due process concerns
about the investigation of Simpson.’ It is beyond cavil that
government agents “may rely on paid informants in order to
*The FBI's conduct with respect to Miller was the subject of conflicting
evidence during the pre-trial hearing. Judge Hatter’s only explicit finding of
fact concerning this issue stated simply that “On December 23, 1982, Helen
Miller agreed to become a paid FBI informant.” Findings, at 1. However,
we can infer that Judge Hatter found the facts necessary to support his con-
clusion that Miller was “manipulated.” See South-Western Publishing v.
Simons, 651 F.2d 653, 656 n.2 (9th Cir. 1981) (“failure to make an express
finding of fact by the district court ‘does not require remand if a complete
understanding of the issues may be had without the aid of separate
findings’ ”) (citation omitted), cert. denied, 455 U.S. 1018 (1982).
’We reject the government's suggestion that, because the “limitations of
the Due Process Clause of the Fifth Amendment come into play only when
the Government activity in question violates some protected mght of the
defendant,” Hampton v. United States, 425 U.S. 484, 490 (1976) (plurality
opinion), the defendants here have no standing to complain about the FBI’s
treatment of an informant. While a “defendant does not have standing to
raise a due process violation suffered by a third party,” Bogart, 783 F.2d at
1433, we have held that because “the target of the government’s activity”
is a direct victim of the government’s conduct, the target “has standing to
contest his conviction on the grounds that the government’s conduct ...
violated Ais due process rights.” /d. (emphasis added). As the direct target
of the FBI’s investigation, therefore, Simpson has standing to complain
about any outrageous conduct occurring during the investigation. That the
informant may also be characterized as a “victim” of the government’s con-
duct in no way undermines Simpson’s status as a targeted victim with
standing under Bogart. See Ryan, 548 F.2d at 788-91 (considering defen-
dant’s due process challenge to indictment based on the allegedly coercive
manner in which government officials recruited a private informant for his
investigation).
Since we reach and reject Simpson’s challenge on the merits, we need not
decide whether defendants Anderson and Freeman, who may not have
been direct targets of Miller’s activities as an informant, also have standing.
—A1l6—
UNITED STATES v. SIMPSON
locate and arrest criminals.” United States v. McQuin, 612
F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955
(1980). Surely Miller was not rendered ineligible to serve as
a paid informant because she was poor and because she was
vulnerable to becoming emotionally dependent upon her case
agents. And, the fact that the agents offered to back off their
investigation into Miller’s own narcotics activities raises no
due process concerns.® It is common practice for the govern-
ment to reduce or drop charges against persons who cooper-
ate with law enforcement officials in the prosecution of
others, and we find no constitutionally significant distinction
between the use of such a carrot at the prosecution stage and
at the investigation stage. See Ryan, 548 F.2d at 788-89 (no
due process violation when government encouraged one sus-
pect to inform against a friend by threatening suspect with
criminal prosecution and warning him that his health would
be irreparably damaged by imprisonment). Hence, the gov-
ernment’s “manipulation” of Miller into becoming an infor-
mant provides no basis for dismissing the indictment on due
process grounds.
C
THE CONTINUED USE OF AN INFORMANT WHO
ENGAGES IN UNRELATED CRIMINAL ACTIVITY
The third aspect of the FBI’s conduct cited by Judge Hatter
in dismissing the indictment was “the Government’s contin-
ued employment of Miller despite her known status as a her-
oin addict and prostitute, and despite her numerous arrests.”
Findings, at 3. Judge Hatter found that the FBI agents knew
Miller was a prostitute and a heroin addict at the time they
recruited her and that Miller told the agents during the inves-
tigation that she continued to engage in these criminal activi-
ties.
®As far as the record shows, Miller was perfectly competent to decide
whether it was in her own self-interest to serve as an informant in exchange
for money and a chance to escape prosecution on drug charges.
2S Lar ge Sl Ubi
—
UNITED STATES v. SIMPSON
[12] We find no authority supporting the defendants’ claim
that the continued use of an informant known to be commit-
ting unrelated crimes without the government’s urging or
approval raises due process concerns. It is unrealistic to
expect law enforcement officers to ferret out criminals with-
out the help of unsavory characters. This court has held that
“[g]overnment agents may approach people already engaged
in or contemplating criminal activity” to employ them as
informants. Bogart, 783 F.2d at 1438; see Ryan, 548 F.2d 782
(government agents used suspect in bribery scheme as infor-
mant to catch co-conspirators). Thus the mere fact that Miller
continued to use heroin and engage in prostitution during the
investigation of Simpson did not oblige the FBI to stop using
her as an informant. Indeed, government agents can go so far
as to direct an informant to participate in the very criminal
enterprise that is under investigation. See, e.g., United States
v. O'Connor, 737 F.2d 814, 817-18 (9th Cir. 1984) (use of
informant to sell cocaine provided by government was not
outrageous), cert. denied, 469 U.S. 1218 (1985); see also
United States v. Bowling, 666 F.2d 1052, 1054-55 (6th Cir.
1981) (informant’s participation in nonviolent property
crimes held not to be outrageous), cert. denied, 455 U.S. 960
(1982); United States v. Brown, 635 F.2d 1207, 1213 (6th Cir.
1980) (same).?
We recognize that there are constitutional limits on the type and extent
of criminai activity, germane to the investigation or not, in which the gov-
ernment can become involved:
It would be unthinkable, for example, to permit government
agents to instigate robberies and beatings merely to gather evi-
dence to convict other members of a gang of hoodlums. Govern-
mental ‘investigation’ involving participation in activities that
result in injury to the rights of its citizens is a course that courts
should be extremely reluctant to sanction.
Hampton, 425 U.S. at 493 n.4 (Powell, J., concurring) (quoting United
States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973)). Miller’s nonviolent
criminal activity that was neither encouraged nor condoned by the govern-
ment falls far short of this limitation.
—A18—
UNITED STATES v. SIMPSON
D
THE GOVERNMENT’S INVOLVEMENT IN
“MANUFACTURING” THE DEFENDANTS’ CRIME
[13] Finally, although Judge Hatter did not rely on this
argument in dismissing the indictment, Simpson contends on
appeal that the FBI’s conduct was outrageous because the
agents essentially “manufactured” his crime by supplying
him with a willing purchaser and by using Miller to persuade
him to sell the drugs in the first place. Simpson correctly notes
that the outrageous conduct doctrine bars prosecution of
defendants when government agents have “ ‘engineer[ed] and
direct[ed] the criminal enterprise from start to finish’” or
“ ‘senerat([ed] ... new crimes merely for the sake of pressing
criminal charges against the defendant.’ ” Bogart, 783 F.2d at
1436 (quoting Ramirez, 710 F.2d at 539, 540). However, we
reject Simpson’s contention that the FBI’s conduct in this
case violated due process as measured by this “government-
manufactured crime” test.’® Judge Hatter’s findings contain
no suggestion that the FBI created the criminal enterprise. To
the contrary, he found that the FBI agents already had a
“tremendous amount of knowledge with regard to [Simp-
son's] activit!2s” when they targeted him for investigation, so
much so that “the Government would be remiss if it did not
1°We know of only two federal cases where prosecution was barred
because the government “involve{d] itself so directly and continuously over
such a long period of time in the creation and maintenance of criminal
operations” as to make prosecution “repugnant to American criminal
justice.” Greene v. United States, 454 F.2d 783, 787 (9th Cir. 1971). In
Greene, government agents collaborated with a suspected criminal to estab-
lish an illegal bootlegging operation and then sustained the operation, act-
ing as both the supplier and sole customer of the illegal operation it had
created. In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), government
agents established and supplied a narcotics laboratory in order to arrest a
suspect who was at the time “lawfully and peacefully minding his own
affairs.” /d. at 381; see also Bogart, 783 F.2d at 1438 (remanding to district
court for further findings of fact relevant to the government's alleged role
in creating criminal activity).
SP eee eye ae nee
—A19—
UNITED STATES v. SIMPSON
conduct an intensive investigation of this individual.” 10
R.T. at 44. Rather than creating and directing the criminal
enterprise from beginning to end, the FBI simply used an
informant to infiltrate a preexisting criminal enterprise. The
due process clause does not bar prosecution when an infor-
mant’s “official role was limited to that of introducing a will-
ing seller of narcotics to a willing purchaser.” Prairie, 572
F.2d at 1319; see also Bogart, 783 F.2d at 1437-38 (courts
have consistently rejected outrageous conduct challenges
when the targeted criminal enterprise was underway before
the government agent became involved).
[14] In conclusion, we hold that the FBI’s conduct in
recruiting and using Helen Miller as an informant is not
“shocking to the universal sense of justice.” Russell, 411 U.S.
at 432 (quoting Kinsella v. United States ex rel. Singleton, 361
U.S. 234, 246 (1960)). Accordingly, we reverse the district
court’s order dismissing the indictment on due process
grounds.
il
THE WIRETAP ISSUE
Judge Hatter also granted the defendants’ motion to sup-
press evidence obtained from wiretapping Simpson’s home
phone and several public phones.’ Following an evidentiary
hearing, Judge Hatter found that the affidavit submitted by
agent Robert Ross (“Ross Affidavit’) to satisfy the statutory
‘'Simpson has standing to move for suppression of the wiretap evidence
as an “aggrieved person” under 18 U.S.C. 2518(c)(10)(a) both because he
was a party to an intercepted conversation and because a conversation was
intercepted on his premises. See United States v. Jabara, 618 F.2d 1319,
1326 (9th Cir.), cert. denied, 449 U.S. 856 (1980). it is not clear from the
record whether Anderson or Freeman were parties to intercepted conversa-
tions or enjoyed a privacy interest in the wiretapped premises, but the gov-
ernment does not contest their standing to move for suppression of the
wiretap evidence.
—A20—
UNITED STATES v. SIMPSON
requirement that wiretapping be authorized only when
necessary” was “artfully drafted with the intent to mislead
the reviewing judge.” Findings of Fact and Conclusions of
Law Suppressing Wiretap Evidence (“Wiretap Findings”), at
5. The affidavit stressed the need for wiretapping to identify
all of the members of Simpson’s suspected narcotics enter-
prise. In it Ross claimed that adequate evidence could not be
obtained through other investigative avenues because Simp-
son and his co-conspirators had “insulated themselves and
their high echelon accomplices from all but a small circle of
associates” such that “[u]ndercover agents, confidential infor-
mants, and witnesses cannot penetrate the organization to the
highest levels because of insulation tactics utilized.” Ross
Affidavit, at 47. With respect to the FBI’s plan to set Simpson
up for a drug bust, the affidavit claimed that “there is no rea-
son to believe that such a purchase would identify the source
and storage place for the heroin, nor the identities of other
conspirators.” /d. at 50.
[15] Given the affidavit’s emphasis on Simpson’s insulation
from potential informants to justify the need for wiretapping,
Judge Hatter found particularly misleading the affidavit's
failure to disclose the true depth of Miller’s involvement in
Simpson’s activities. The affidavit “portrayed Helen Miller «1s
an innocent, uninvolved eavesdropper to Darrel Simpson's
activities,” thus obscuring the fact that she “was deeply
involved.” Wiretap Findings, at 4. Moreover, the affidavit
“created the illusion that Source Two and Individual A were
different people.” when in fact both were Helen Miller. and
Ross’ failure *o so inform the reviewing judge “reflects a con-
scious effort to mislead.” /d. Finally, the affidavit failed to
124 n application for a court-authorized wiretap must include “a full and
complete statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(1)(c), and it must
also recite facts indicating that “normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to succeed if tried
or to be too dangerous.” 18 U.S.C. § 2518(3)(c).
» nate ine,
DLS AE RE RES
Mitlatse eeu «
—A21—
UNITED STATES v. SIMPSON
report that within two months of meeting Simpson Miller had
twice arranged for him to sell heroin to undercover agents
and had also introduced him to Agent Hamer. /d. at 5.
Because of these material misrepresentations and omissions,
Judge Hatter found that the affidavit “was not a complete
statement as required by Title 18 United States Code. Section
2518(1)(b)(i)” and that “the omissions create the illusion of
necessity for the wiretap.” Wiretap Findings, at 4-5. He con-
cluded that the affidavit, when corrected for the misleading
statements and omissions, failed to establish the necessity of
wiretapping as required by law. See generally United States v.
Ippolito, 774 F.2d 1482, 1487 (9th Cir. 1985).
[16] The government argues on appeal that the details of
Miller’s involvement in the investigation of Simpson were
immaterial to the issuing judge’s finding of necessity. In other
words, the government contends that even when “corrected”
for the omissions cited by Judge Hatter, the affidavit still
established the “reasonable unlikelihood of a successful total
penetration of the drug organization under investigation by
undercover techniques.” Appellant's Opening Brief, at 33.
After reviewing the affidavit in light of the evidence adduced
at the evidentiary hearing and the findings of fact made by
Judge Hatter, however, we reject the government’s claim of
immateriality.'* The government’s assertion that traditional
law enforcement methods could not discover the identity of
all members of the alleged drug ring assumes that Miller had
no potential to win Simpson's confidence enough to learn the
3Judge Hatter apparently found that suppression was independently
required because the affidavit failed to satisfy other statutory requirements
of section 2518. Because we affirm his order based on the government’s fail-
ure to show necessity, we need not review the other grounds upon which
Judge Hatter based his suppression order.
Underlying factual findings of the district court concerning misleading
statements and omissions are reviewed under the clearly erroneous stan-
dard. See Ippolito, 774 F.2d at 1484. The ultimate question whether any
misstatements or omissions were material is a mixed question of law and
fact and is reviewed de novo. Id.
—A22—
UNITED STATES v. SIMPSON
details of the drug enterprise. In fact, however, Judge Hatter
found that Miller had become “deeply involved” with the
enterprise. Wiretap Findings, at 4. Miller had obviously
established a close friendship with Simpson, had been present
on several occasions while Simpson conducted business with
other members of the alleged drug ring, Ross Affidavit, at 27-
33, and had become trusted enough to be permitted to iden-
tify potential drug purchasers for Simpson. In Jppolito, we
rejected the government’s claim that wiretapping was needed
to discover the identities of unknown cohorts when in fact an
informant “was both willing to testify and had great potential
for uncovering the entirety of the conspiracy under
investigation.” 774 F.2d at 1486-87. Following [ppolito, we
conclude that if the full details about Miller’s penetration into
Simpson’s activities were known to the issuing judge. “a rea-
sonable district court judge could have denied the application
because necessity for the wiretap order had not been shown.”
Ippolito, 774 F.2d at 1487.
[17] To be sure, we have under certain circumstances found
wiretapping necessary when traditional investigatory tech-
niques alone could lead to the apprehension and prosecution
of only the main conspirators but not the “satellite” conspira-
tors higher up in the drug distribution scheme. See, e.g..
United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986);
United States v. Sandoval, 550 F.2d 427, 430 (9th Cir. 1976),
cert. denied, 434 U.S. 879 (1977). However, we have required
the government in each wiretap application to identify
specific circumstances indicating that traditional techniques
cannot reveai the broader picture. As we noted in /ppolito.
“we must be careful not to permit the government merely to
characterize a case as a ‘drug conspiracy’... that is therefore
inherently difficult to investigate. The affidavit must show
with specificity why in ‘Als particular investigation ordinary
means of investigation will fail.” 774 F.2d at 1486 (emphasis
in original) (quoting United States v. Robinson, 698 F.2d 448,
453 (D.C. Cir. 1983) (per curiam)). Here, the specific facts
withheld from the issuing judge about this particular investi-
—A23—
UNITED STATES v. SIMPSON
gation reveal that traditional techniques could have led to the
successful infiltration of the entire enterprise. Accordingly,
we afirm Judge Hatter’s order suppressing the wiretap evi-
dence.
CONCLUSION
The district court’s order suppressing wiretap evidence is
affirmed. The order dismissing the indictment on due process
grounds is reversed, and the case is remanded for further pro-
ceedings consistent with this opinion.
APPENDIX B
en
APPENDIX B
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES
OF AMERICA,
No. 84-5301
Plaintiff/Appellant,
vs.
SIMPSON, ROBERT
MACRINER ANDERSON,
and JAMES ROY
FREEMAN,
)
)
)
)
)
)
)
DARREL PATERSON ) ORDER
)
)
)
)
)
Defendants/Appellees. )
)
Before: HUG, NORRIS, and HALL, Circuit Judges
The panel, as constituted above, has unanimously
voted to deny the petitions for rehearing and to reject
the suggestions for rehearing en banc.
The full court has been advised of the suggestions
for en banc rehearing and no judge of the court has
requested a vote on the suggestions for rehearing en
banc. Fed.R.App. P. 35(b).
The petitions for rehearing are DENIED, and the
suggestions for rehearing en banc are REJECTED.
PROOF OF SERVICE BY MAIL
State of California
County of Los Angeles
I, the undersigned, say: I am and was at ail times herein
mentioned, a citizen of the United States and a resident of the
County of Los Angeles, over the age of eighteen (18) years and
not a party to the within action or proceeding; that my business
address is 10835 Santa Monica Boulevard, Los Angeles,
California 90025; that on August 20, 1987, I served the within
Petition for Writ of Certiorari in said action or proceeding by
depositing three (3) true copies thereof, enclosed in a sealed
envelope with postage thereon fully prepaid, in the United
States mail at Los Angeles, California, addressed to the parties
as follows:
Clerk, United States
Supreme Court
One First Street, NE.
Washington, D.C. 20543
(Original + 40 Copies)
Clerk, District Court
United States District Court
For Hon: Terry J. Hatter
312 No. Spring Street
Los Angeles, CA 90012
James Henderson
Dept. of Justice
Room 2311, Federal Bldg.
300 No. Los Angeles Street
Los Angeles, CA 90012
Joan Howarth, Esq.
ACLU of Southern California
633 South Shatto Place
Los Angeles, Ca 90005
(1 Courtesy Copy)
Ephraim Margolin, Esq.
240 Stockton, Third Floor
San Francisco, CA 94108
(1 Courtesy Copy)
Donald Etra, Esq.
Sidley & Austin
2049 Century Park East
Suite 3500
Los Angeles, CA 90067
Louis S. Katz, Esq.
2437 Second Street
San Diego, CA 92101
(1 Courtesy Copy)
J. Brendan O'Neill, Esq.
1337 Ocean Ave., Suite A
Santa Monica, CA 90401
Diane E. Wright, Esq.
Charles Pereyra-Suarez, Esq.
811 W. Seventh Street
Suite 1100
Los Angeles, CA 90017
(1 Courtesy Copy)
Solicitor General
Department of Justice
Washington, D.C. 20530
I declare under penalty of perjury that the foregoing is true
and correct. Executed on August 20, 193 , at Los Angeles,
California.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.