United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to dismiss the indictment filed by Defendant Brenton Bahador (ECF No. 118), joined by Defendant Eric Leitzke (ECF No. 119) and Defendant Jessie Gonzalez (ECF No. 122).
The arrests in this case took place on December 4, 2012 after a series of events involving Defendant Bahador and confidential informants which began in November 2012.
On November 16, 2012, a meeting took place with Defendant Bahador, other co-defendants, a confidential informant (CS1), and an undercover DEA agent posing as a cocaine dealer. Defendant Bahador was shown several bricks of cocaine at the meeting. At a second meeting, CS1 attempted to arrange for Defendant Bahador to trade cars and money for cocaine. Prior to a third meeting, CS1 told government agents that Defendant Bahador would pay cash and trade expensive cars for cocaine. Defendant Bahador arrived at the meeting in a vehicle but did not bring cash. Defendant Bahador tried to interest the DEA agent in vehicles he brought to the meeting. Once the undercover DEA agent reviewed the paperwork for the two vehicles, the undercover DEA agent gave an arrest signal and Defendant Brenton Bahador and co-defendants were arrested without incident.
On an unknown date in late 2012 but prior to the meetings described above, a 2008 Bentley owned by Defendant Bahador had been involved in an accident which caused significant damage to the Bentley. Defendant Bahador took the Bentley to a dealership, Symbolic Motors, for repairs.
On December 6, 2012, CS1, without the consent or permission of Defendant Bahador, CS1 arranged to have the 2008 Bentley towed from Symbolic Motors. Government agents were not aware of CS1's intent to take the vehicle at any time. The government agents did not authorize or participate in the alleged theft of the vehicle.
On December 12, 2012, the grand jury for the United States District Court Southern District of California returned an Indictment charging Defendants Brenton Bahador, Eric Leitzke, Jessie Gonzalez, and others with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendants were arraigned and entered pleas of not guilty.
CONTENTIONS OF THE PARTIES
Defendant Bahador contends that he is entitled to dismissal of the indictment on the grounds that the outrageous conduct of the Government violated his rights to due process under the Fifth Amendment to the United States Constitution. Defendant Bahador contends that the Government used CS1 to arrest him, and permitted CS1 to take his property by theft. Defendant Bahador contends that the Court should not allow the Government to proceed with this prosecution on the grounds that CS1 manipulated the Government into arresting him and then used his incarceration to steal from him.
The Government asserts that the actions of CS1 were opportunistic and unacceptable but do not rise to the level of grossly shocking government conduct necessary to support dismissal. The Government contends that the facts of this case do not amount to conduct so outrageous that due process principles would bar the Government from seeking a conviction. The Government contends that CS1 was acting without the knowledge and consent of government agents when the informant took the Bentley without permission. The Government asserts that the alleged vehicle theft by CS1 was not connected to the crimes charged against Defendant Bahador and occurred subsequent to the arrest of Defendant Bahador. The Government contends that the conduct of CS1 after the completion of the criminal conduct which lead to the arrest of Defendant Bahador does not warrant dismissal of the indictment in this case.
RULING OF THE COURT
"To support a dismissal of... [an] indictment on the grounds of outrageous government conduct, ... [the defendant] must prove that the government's conduct was so excessive, flagrant, scandalous, intolerable, and offensive as to violate due process." United States v. Edmonds, 103 F.3d 822, 825 (9th Cir. 1996) (internal quotations and citations omitted). In United States v. Black, 733 F.3d 294 (9th Cir. 2013), the Court of Appeals stated:
Outrageous government conduct occurs when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Dismissing an indictment for outrageous government conduct, however, is "limited to extreme cases" in which the defendant can demonstrate that the government's conduct "violates fundamental fairness" and is "so grossly shocking and so outrageous as to violate the universal sense of justice." Stinson, 647 F.3d at 1209 (internal quotation marks omitted). This is an "extremely high standard." United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir.1993) (quoting United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991)) (internal quotation marks omitted). Indeed, there are only two reported decisions in which federal appellate courts have reversed convictions under this doctrine. See United States v. ...