The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT; DENYING MOTION TO SUPPRESS; DENYING MOTION FOR A FRANKS HEARING
Defendant Ryan Wedding moves to dismiss the indictment for outrageous government conduct, to suppress evidence, and for a Franks hearing. The Government opposes all motions. Having carefully considered the record, moving papers, pertinent authorities, the arguments of counsel, and for the reasons set forth below, all motions are denied.
Defendant Wedding, along with co-defendants Michael Krapchan and Hassan Shirani, is charged in a single count indictment with conspiracy to distribute cocaine in violation of 21 U.S.C. §841(a)(1). The Government identifies the following pertinent background.*fn1 On January 3, 2007 CS -1 was contacted by Krapchan and informed that he and his associates were looking for someone to launder money and to traffic in cocaine, ecstasy, and ephedrine. Krapchan later introduced CS-1 to Elmer Akhundov. During recorded conversations on January 20, 2007 and August 31, 2007 Krapchan, Akhundov and CS-1 discussed the details of the money laundering and drug distribution.
In early June 2007 recorded conversations reveal that Krapchan and CS-1 confirmed an order for 24 kilos of cocaine. On June 7, 2008 Krapchan told CS-1, in a recorded conversation, that he would be in San Diego with two other individuals, a "Canadian athlete" and an "Iranian." On June 10, 2008 CS-1 met with Krapchan, Shirani, and Wedding. Krapchan introduced Shirani and Wedding as the sources of supply for the buy money. Without the code words, Wedding stated that it was his intention to pick up one kilo of cocaine and have a look at it. Then he would pick up the other kilos of cocaine.
The parties agreed to meet on June 13, 2008 to complete the first transaction for one kilo of cocaine. On that date, FBI agents observed Krapchan, Shirani, and Wedding arrive together at the San Diego Hampton Inn Hotel driving a 2008 Prius. They entered the hotel together and then a short time later Krapchan left in the Prius. Krapchan then drove to the negotiated location to complete the deal. Krapchan paid $17,000 for one kilo of cocaine. After the exchange, CS-1 asked Krapchan to call and inform Shirani and Wedding that the exchange had taken place. Krapchan placed the call and then Agents arrested Krapchan. As Shirani and Wedding were exiting the Hampton Inn, they were arrested.
During the search of the Prius, agents discovered a vehicle rental agreement in the name of Wedding listing Shirani as an additional driver. Agents also discovered a hotel key card for Room 304 at the Comfort Inn and a real estate magazine for the San Fernando Valley area. The Government obtained a search warrant from the Central District of California, based upon Agent Kalina's affidavit, for the motel room. Upon searching Wedding's room No. 304 at the Comfort Inn, agents discovered $100,000 in cash hidden in the hotel room's furniture.
Motion to Dismiss for Outrageous Government Conduct
Misconduct on the part of law enforcement agents may be so outrageous that "due process principles would absolutely bar the government from invoking the judicial process to obtain a conviction." United States v. Russell, 411 U.S. 423 , 431-21 (1973). Misconduct violates due process where the conduct violates "fundamental fairness, shocking to the universal sense of justice." Id. As explained in USA v. Bogart, 783 F.2d 1428, 1436 (9th Cir.), vacated on other grounds sub nom., USA v. Wingender, 790 F.2d 802 (9th cir. 1986).
We have held that law enforcement conduct also becomes constitutionally unacceptable 'where government agents engineer and direct the criminal enterprise from start to finish,'  or when governmental conduct constitutes "in effect, the generation by police of new crimes merely for the sake of pressing criminal charges against the defendant."
Id. The court also noted that the "precise parameters of such concepts as fundamental fairness and universal sense of justice are probably indefinable. Perhaps because of these very considerable problems of philosophy and semantics, no federal court has defined with any sort of precision the contours of the outrageous conduct defense." Id. at 1435. Bogart also pointed out the distinction between a due process claim for outrageous government conduct, which is determined objectively and without regard to a defendant's predisposition.
Defendant contends that the indictment must be dismissed because (1) the Government was impermissibly involved in the crime; (2) misconduct occurred before the grand jury; (3) the Government has failed to produce CS-1 for an interview; and (4) the Government listened to recorded attorney/client conversations on public telephone lines.
First, the court rejects Defendant's argument that the Government impermissibly created or directed the crime. Here, CS-1 contacted the Government about individuals seeking to launder money and purchase cocaine, among other illegal substances. Pursuant to negotiations with Krapchan and Akhundov, a drug transaction was negotiated. Defendant Wedding voluntary injected himself to the transaction. Prior to June 7, 2008 Wedding had not had any conversations with CS-1 or the Government. On June 7, 2008 Krapchan told CS-1, in a recorded conversation, that he would be in San Diego with two other individuals, a "Canadian athlete" and an "Iranian." On June 10, 2008 CS-1 met with Krapchan, Shirani, and Wedding. Krapchan introduced Shirani and Wedding as the sources of supply for the buy money. During these conversations, Wedding made a reference to the drug deal and the transfer of $100,000 in cash. These circumstances are markedly different from those in Greene v. United States, 454 F.2d 783 (9th Cir. 1971). In Greene , the Government offered to supply the equipment and an operator for the distilling of spirts. The government also supplied the raw materials and encouraged the defendants to resume production. Then, the Government served as the only customer for the illegal spirits. Unlike Greene, where the Government controlled and directed the enterprise, Wedding and his co-defendants controlled their own destiny. Accordingly, the court rejects this misconduct argument.
Second, Defendant contends that misconduct occurred before the grand jury. Defendant contends that "the government knowingly presented misleading testimony to the grand jury in order to get an indictment as to Mr. Wedding." (Motion at p.24:4-5). Defendant, however, makes nothing more than this conclusory statement in support of his argument. Consequently, Defendant fails to raise a colorable challenge. The court also denies Defendant's request for the pretrial production of the Grand ...