Defendant Beals is charged by indictment with being a felon in possession of a firearm. Defendant has moved to dismiss the indictment based on outrageous government conduct, and has requested an evidentiary hearing in connection with the motion. This case was on calendar most recently on March 28, 2012, for a status hearing, at which Robert M. Holley appeared for defendant Kenneth Beals, who was present in custody in court; William Wong, Assistant United States Attorney, appeared for the government. The court noted at the hearing that it would issue an order in the near future resolving the motion to dismiss. That order follows. For the reasons addressed below, and after careful consideration, the court denies defendant's motion and request for an evidentiary hearing.
Defendant is charged with one count of possession of a firearm by an ex-felon, in violation of 18 U.S.C. § 922(g)(1). ECF No. 1. On February 3, 2011, defendant filed a motion to suppress the gun, which was seized during a search of his Dodge van. He relied on the description of the October 19, 2009 incident contained in a police report prepared by Sacramento Police Officer Harshbarger and argued that Harshbarger and the other arresting officer did not have reasonable suspicion to approach the van, which was parked in front of a liquor store, much less probable cause to conduct a warrantless search. ECF No. 13. In the report, Officer Harshbarger said that he approached the van because he knew "this model of Caravan is commonly stolen," and that when defendant said he was on probation and the passenger said he was on parole, Harshbarger and his partner ordered the van's occupants detained. ECF No. 13-1 at 1. A warrants check showed active Lake County warrants for defendant. Id. The officers searched the van and found a gun in the area where defendant had been sitting. Id.
The government submitted Officer Harshbarger's declaration as part of its opposition to the motion to suppress. Officer Harshbarger averred that on October 19, 2009, he was looking for this particular 1994 Dodge Caravan because he "had been given information from a confidential informant that Kenneth Beals was a convicted felon and was possibly armed with a handgun" and was driving such a van. ECF No. 19-1 at 2 ¶ 4. Harshbarger had followed up after his contact with the informant by requesting defendant's criminal history and driving record from dispatch; approximately two hours after submitting the request, Harshbarger received information that defendant's driver's license was suspended, that he was wanted on the two outstanding warrants from Lake County, and that defendant was on probation. Id. ¶ 6. About a half hour after receiving this information, Harshbarger found the van parked in front of a liquor store. Id. at 3 ¶ 7. Harshbarger recognized defendant from a prior contact and ordered him out of the van. Id. ¶ 10. He averred that "in order to maintain the confidentiality of the identity of my informant, I used a ruse to explain my presence at the scene." Id. ¶ 11. During the encounter, Jennifer Critchfield, who had been a passenger in the van, came out of the liquor store. She was detained but then released. At defendant's request, Harshbarger gave Critchfield defendant's keys and she was allowed to drive the van away so it would not be impounded. Id.
¶ 14. Defendant later acknowledged that the gun the officers found was his. Id. ¶ 16. Harshbarger concluded his declaration by saying, "I omitted from my report any mention of the fact that I had received information from a confidential informant . . .. because I wanted to protect the identity of the confidential informant for the informant's safety." Id. at 4-5 ¶ 17.
On June 6, 2011, defendant suspended litigation of his motion to suppress and filed a motion to dismiss for outrageous government conduct and a motion for disclosure of the informant's identity and several categories of information about the informant. In the briefing on the motion to disclose and in the motion to dismiss, defendant asserts, without evidentiary support, that the officers told him the van, which belonged to his uncle, could be impounded for his uncle to retrieve later or that "maybe the woman passenger could drive it back to the uncle's house for him." ECF No. 31 at 7; ECF No. 30 at 9. Defendant continues, that "Ms. Critchfield, the uncle's van, and thousands of dollars of personal property taken from the uncle's residence, disappeared that night, never to return." ECF No. 31 at 7; ECF No. 30 at 9. In his motions, defendant theorizes that Critchfield, who had been texting shortly before the arrest, was the informant and that had he known, he would not have authorized giving his uncle's keys to her. ECF No. 31 at 7; ECF No. 30 at 9.
In considering defendant's motions to disclose and to dismiss, the court conducted an in camera examination of Officer Harshbarger, later releasing the transcript to the parties. During the examination, Harshbarger identified Critchfield as the informant, said he was aware she was on probation for non-violent offenses, and explained that she had been exchanging money for information for approximately three years. ECF No. 52 at 4-5. The officer said he had heard that Critchfield was currently in prison. Id. at 21.
Harshbarger testified that after arresting defendant, he tried to reach defendant's uncle, the registered owner of the van, but when he could not, he followed usual police practice by giving defendant the option of having a responsible party take the van rather than having it towed and impounded; defendant opted to have Critchfield take the van. Id. at 12, 14-15. Harshbarger did not look at the key ring he gave Critchfield, and did not realize there was a house key on the ring. Id. at 12-13. Defendant did not volunteer that the ring contained a house key. Id.
In preparing for the court's in camera examination, Officer Harshbarger learned that there were no reported crimes from the uncle's address, from the date of defendant's arrest until a month or two before the examination. Id. at 16.
Officer Harshbarger did not tell the U.S. Attorney's Office about the existence of the informant until three months before the in camera hearing, nearly two years after the grand jury indicted defendant. Harshbarger testified he was acting to protect the informant. Id. at 16. His desire to protect Critchfield's identity also prompted him to omit any mention of her from the police report and to claim instead as a "ruse" that he approached the van because it was a commonly stolen model and was improperly parked. Id. at 18.
After the in camera hearing and the court's release of the transcript, defendant filed a supplemental memorandum of points and authorities, which attached an investigator's report of an interview with one Adam Susko, an inmate at Deuel Vocational Center. Susko identified a picture of Critchfield as someone who was "kind of like family" to him "when he was out on the streets." ECF No. 46-1 at 1. Sometime in October 2009, Susko called Critchfield for a ride. She reportedly arrived in a white van, drove him to a house on Greenholm Street and asked for Susko's assistance in "robbing the house," but he refused. Id. at 2. Despite having obtained this report, defendant has never submitted a declaration from Susko, or defendant's uncle, or a police report or insurance claim or any other documentary evidence supporting his contention that the uncle's house was burglarized after Harshbarger gave Critchfield defendant's keys. Nor has defendant suggested that Susko would be willing to testify about this incident, or offered to make Susko available for examination.
Upon review of defendant's supplemental memorandum, the court ordered the government to provide a transcript of the grand jury proceedings related to defendant's indictment. After in camera review, the court released this transcript to defendant. That transcript of the proceeding, held on November 12, 2009, shows that the case was presented through the testimony of an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives. The agent based her testimony on a review of the police reports and responded affirmatively when the Assistant United States Attorney asked, "did the officers indicate that they had observed Mr. Beals commit some type of parking violation?" ECF No. 54 at 3.
In his most recent supplemental memorandum of points and authorities, defendant argues that Officer Harshbarger's actions in allowing defendant to authorize giving his keys to Critchfield, who was the cause of defendant's arrest, coupled with the officer's falsification of his police ...