UNITED STATES of America, Appellee, v. Terry Lee KUMMER, Appellant.
No. 93-1904
United States Court of Appeals, Eighth Circuit
February 10, 1994
Rehearing Denied March 17, 1994
1455
Furthermore, even assuming the trial judge would find that the negligence of the pilot, when compared with the gross negligence of the government, was such that the pilot would be barred from recovery, there would still be a question of the government having to make contribution in this indemnity action for the loss that the carrier has incurred in payment of the wrongful death claims of the passengers.
Because this case requires further remand and further finding, I respectfully dissent from the majority‘s opinion.
Submitted Oct. 14, 1993.
Decided Feb. 10, 1994.
Rehearing Denied March 17, 1994.
Counsel who presented argument on behalf of the appellee was Keith M. Reisenauer, Assistant United States Attorney, Fargo, North Dakota.
Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.
HEANEY, Senior Circuit Judge.
Terry Lee Kummer was initially convicted by a jury in North Dakota state court of possessing cocaine with intent to deliver. On appeal, the North Dakota Supreme Court overturned his conviction, finding that Kummer had been entrapped as a matter of state law. Kummer was subsequently charged in federal court. After his motions for dismissal and to suppress evidence were denied, Kummer pleaded guilty to violating
BACKGROUND1
During the summer of 1990, law enforcement officers learned from two confidential informants that Kummer had been involved in drug trafficking. The informants had themselves been arrested for drug violations, and they agreed to cooperate with the officers in exchange for a favorable recommendation to the state‘s attorney‘s office on their1 prosecutions. Special Agent Daniel
On September 17, 1990, one of the informants, at the direction of Baumann and Weaver, made a taped telephone call from the police department to Kummer and asked him when he would be in the Fargo area to take advantage of a good deal on cocaine. Kummer expressed an interest, but only if the quality was better than it had been in the past. Four days later, the informant made another taped telephone call to Kummer and discussed the price and quantity of cocaine that Kummer might purchase. Kummer decided to purchase three ounces. Baumann and Weaver planned the amount of cocaine to offer to Kummer and set the price at $1,200 per ounce.
On September 28, the informant made two more taped telephone calls to Kummer to plan a date, time, and place for the sale. The informant and Kummer arranged to meet on the evening of September 30, 1990, at Motel 75 in Fargo.
On September 30, Weaver obtained three ounces of cocaine from the evidence room at the police department. He divided the cocaine into three one-ounce portions and heat-sealed each portion in plastic bags. Later that day, Baumann and the two informants went to one of two rented rooms at Motel 75. Baumann placed a body transmitter on one of the informants and instructed them to tell the front desk personnel to have Kummer, upon his arrival, call before coming to the room. When Kummer called, Baumann gave the three packages of cocaine to the informant who had arranged the transaction, turned on the body transmitter that had been placed on the other informant, and went to the other motel room where officers had set up surveillance equipment. When the officers heard the informants counting the $3,600 Kummer had given them, they went into the hallway and waited for Kummer to leave the room. Upon leaving the room, Kummer was stopped, a pat-down search was conducted, and the three packages of cocaine were retrieved. The money Kummer had given the informants was also retrieved.
Kummer was arrested and taken to the Fargo Police Department where he was charged with possession of a controlled substance with intent to deliver in violation of
Officers Baumann and Weaver questioned Kummer for quite some time. When Kummer refused to answer their questions, Weaver told him that he was facing ten years in prison and a $10,000 fine. The officers told him that they could “help [him],” “make things easier for [him],” and “put in a good word for [him].” Affidavit of Terry Lee Kummer, at 1 (Nov. 9, 1992). Upon hearing these promises, Kummer told the officers of a “Joe South Dakota” (Joe Stack),3 one of several individuals who was to receive the cocaine Kummer purchased in the reverse sting. He also told them of the circumstances surrounding the drug sale and the names of additional people who were to receive the cocaine. Baumann and Weaver then asked Kummer to deliver cocaine to Joe Stack at a prearranged place. When Kummer refused to do so, he was brought to jail. The next morning, Baumann again asked Kummer for his cooperation, and again promised to put in a good word for him.
At trial, Kummer relied on a defense of entrapment on which the jury was properly instructed. The jury, however, rejected the entrapment defense and returned a verdict of guilty. Kummer appealed his conviction. The Supreme Court of North Dakota reversed Kummer‘s conviction and remanded the case for entry of a judgment of acquittal, finding that Kummer had been entrapped as a matter of state law because of the law enforcement officers’ unlawful conduct. See State v. Kummer, 481 N.W.2d 437 (N.D.1992).
Thereafter, the United States Attorney for the District of North Dakota sought and received approval to prosecute Kummer under the Justice Department‘s “Petite policy”4 relating to successive state-federal prosecutions. Kummer was charged in a four-count indictment with possession of cocaine with intent to deliver, distribution, conspiracy, and aiding and abetting.
DISCUSSION
I. Entrapment
Kummer first argues that he was entrapped as a matter of law. He contends that our court should not countenance illicit conduct by law enforcement officials “by stamping an imprimatur of approval” upon conduct that was condemned by the North Dakota Supreme Court. Appellant‘s Br. at 9. Kummer would have us reject the federal standard applied in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), in which the Supreme Court upheld the applicability of the “subjective” standard of entrapment, which focuses on an individual‘s predisposition to commit an offense, and instead adopt North Dakota‘s per se rule of entrapment, which focuses on the conduct of law enforcement officials (the “objective” approach). We are unable to do so because of prior decisions of the U.S. Supreme Court and this court.
In a case of first impression, the North Dakota Supreme Court held that Kummer was entrapped as a matter of state law because the police had to “create and commit a crime,” e.g., use unlawful means to obtain the drugs for sale to Kummer in violation of a state statute which provides that conduct by a public officer is not justified unless “required or authorized by law.” State v. Kummer, 481 N.W.2d 437, 443 (N.D.1992); see
However appealing North Dakota‘s objective standard may be for public or other policy reasons, it is neither the standard adopted by the Supreme Court nor the standard guiding decisions involving entrapment law in this circuit. See United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); United States v. King, 803 F.2d 387, 390 (8th Cir.1986);
the evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.
United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978). The critical question, therefore, is whether the law enforcement officer caused or induced the defendant to commit a crime he or she was not otherwise predisposed, e.g., willing and ready, to commit. United States v. Richard, 872 F.2d 253, 254 (8th Cir.1989). Determining a defendant‘s predisposition requires examination of the defendant‘s personal background to see “where he sits on the continuum between the naive first offender and the streetwise habitue.” Lard, 734 F.2d at 1293 (quoting United States v. Townsend, 555 F.2d 152, 155 n. 3 (7th Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 184 (1977)). It also requires considering the extent to which the government agent instigated or induced the commission of the criminal act. Id.7
The district court held that the reverse sting did not, of itself, constitute entrapment as a matter of law, and there is nothing in the record that would suggest otherwise. See United States v. Kummer, No. C3-92-67 (D.N.D. Dec. 18, 1992). Viewing the evidence in the light most favorable to the government, as we must,8 we conclude that the evidence, particularly Kummer‘s apparent previous involvement in drug trafficking and his willingness to purchase the cocaine from the informants absent any prodding or inducement on the part of the police, is sufficient to support a finding that Kummer was not entrapped as a matter of law.
Relying on our decision in United States v. Reifsteck, 535 F.2d 1030 (8th Cir.1976), Kummer further argues that the government‘s conduct in setting up the reverse sting was so outrageous as to constitute a violation of his due process rights.9 Specifically, he notes that we read Hampton as not foreclosing the argument that the government‘s over-zealous participation in the crime was so fundamentally unfair as to constitute entrapment as a matter of law. Id. at 1034. Kummer is correct in stating that the due process/outrageous conduct argument was not foreclosed by Hampton.10 He fails, how-
In Hampton, a majority of the Supreme Court agreed that even where a defendant is predisposed to commit an offense, “outrageous police conduct” could conceivably bar the defendant‘s conviction based on due process principles.11 425 U.S. at 492-93, 96 S.Ct. at 1651-52 (Powell, J., concurring); id. at 499, 96 S.Ct. at 1654 (Brennan, J., dissenting). In a case we decided the same year in which Hampton was decided, we noted, however, that
[g]ranting that a person is predisposed to commit an offense, we think that it may safely be said that investigative officers and agents may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process....
United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976). Similarly, in Gunderson v. Schlueter, 904 F.2d 407 (8th Cir.1990), we found that the level of “outrageousness” needed to prove a due process violation is “quite high.” Id. at 410. Whether law enforcement officers may go as far as selling drugs to a targeted individual (a reverse sting) is a question we recently addressed in United States v. Huff, in which we held that “[w]hen a defendant is predisposed to committing [a] crime... a reverse sting will not ordinarily rise to the level of a due process violation.” 959 F.2d 731, 734 (8th Cir.), cert. denied, U.S., 113 S.Ct. 162, 121 L.Ed.2d 110 (1992). The relevant facts here are not substantially different from those in Huff. We therefore do not find that the police conduct in this case was so outrageous as to constitute a violation of Kummer‘s due process rights.
II. Successive Prosecution
Kummer next raises three separate arguments that concern the common theme of his successive state-federal prosecutions. We address each individually.
1. Double Jeopardy.
Kummer first argues that Count Four of his indictment, charging him with possession of cocaine with intent to distribute, is a violation of the double jeopardy clause of the Fifth Amendment. Specifically, he argues that the federal government‘s reliance on criminal activity stemming from the state officers’ sale of drugs that resulted in his conviction in state court is tantamount to being “prosecuted a second time for the same actions by the same people.” Appellant‘s Br. at 20. His contention seems to be that since his charges arose out of an operation the state alone planned and executed, the state in effect had too great a hand in the defendant‘s ultimate federal prosecution (leaving the government with the minimalist role of deciding only whether to exercise its prosecutory discretion). Id. at 19.12
It is well-established that the “same acts” in a state proceeding may be the basis for a federal prosecution. Abbate v. United States, 359 U.S. 187, 193-96, 79 S.Ct. 666, 669-71, 3 L.Ed.2d 729 (1959). Under the doctrine of dual sovereignty, prosecution by both the state and federal authorities for the
2. Res Judicata/Collateral Estoppel.
Kummer next maintains that his conviction should be barred under the doctrine of res judicata since his innocence was affirmed by the North Dakota Supreme Court. We reject this argument for the same reasons that we rejected Kummer‘s double jeopardy argument. The collateral estoppel and res judicata doctrines do not apply when different sovereigns and, thus, different parties are involved in criminal litigation. See United States v. Brown, 604 F.2d 557, 559 (8th Cir.1979); Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978).
3. Petite Policy.
Kummer lastly contends that the government violated its “self-induced proscription” against successive state-federal prosecutions under the Justice Department‘s Petite policy. Appellant‘s Br. at 22. Under the Petite policy, first recognized in Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960),
United States Attorneys are forbidden to prosecute any person for allegedly criminal behavior if the alleged criminality was an ingredient of a previous state prosecution against that person. An exception is made only if the federal prosecution is specifically authorized in advance by the Department [of Justice] itself, upon a finding that the prosecution will serve “compelling interests of federal law enforcement.”
Thompson v. United States, 444 U.S. 248, 100 S.Ct. 512, 62 L.Ed.2d 457 (1980) (emphasis added).
Kummer argues that the government violated the Petite policy because it had no “compelling” federal interest in prosecuting him. The government does not identify the compelling interests it had for prosecuting Kummer, and we decline to venture a guess at what they may be given our court‘s refusal to speculate what interests or other administrative concerns the government may have for prosecuting a defendant under the Petite policy. See United States v. Wallace, 578 F.2d 735, 740 (8th Cir.1978). As a general matter, because the Petite policy is an internal administrative policy, we lack the power to review decisions by the Department of Justice to waive it. Id.; United States v. Woodard, 927 F.2d 433, 435 (8th Cir.1991). Moreover, although the Petite policy “serves the... important purpose of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct,” we have found that the policy does not generally confer substantive rights. United States v. Bartlett, 856 F.2d 1071, 1075 (8th Cir.1988) (quoting Rinaldi v. United States, 434 U.S. 22, 27-28, 98 S.Ct. 81, 84-85, 54 L.Ed.2d 207 (1977) (per curiam)). Thus, the policy cannot form the basis of a claim that the subsequent prosecution was improper. Id.
III. Violation of Rule 11
Kummer next challenges the admissibility of oral statements he made to the police he alleges were made in the course of plea negotiations. Specifically, he claims that the inculpatory statements he made to the state authorities after his arrest were in the nature of plea negotiations, and therefore are inadmissible pursuant to
The record is void of any evidence that Kummer‘s inculpatory statements to the officers were made in the course of plea negotiations, or that the officers had express authority from a government attorney to enter into such negotiations. The detectives’ statements to the effect that they could “put in a good word” for Kummer can neither reasonably be construed to mean that their discussions with Kummer amounted to plea negotiations nor that they had express authority to enter into such negotiations. In Lawrence, we similarly held that promises made by police to inform the prosecuting authorities of a defendant‘s cooperation do not amount to plea negotiations. 952 F.2d at 1036.
IV. Fruit of the Poisonous Tree
Finally, Kummer argues that all evidence obtained as a result of his unlawful arrest is “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He contends that because he was entrapped as a matter of law, his arrest was illegal; therefore, all evidence obtained as a result of his unlawful arrest is inadmissible. Because we believe that the record is clear that Kummer was not entrapped as a matter of law, we find this argument to be unpersuasive.
CONCLUSION
For the foregoing reasons, we find that the district court did not commit error in denying Kummer‘s motions for dismissal and to suppress evidence. We therefore affirm the district court‘s judgment.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
The North Dakota Supreme Court has decided that the very act with which Mr. Kummer was charged here resulted from the illegal activity of agents of the state, because their possession of contraband was contrary to law. State v. Kummer, 481 N.W.2d 437, 443 (N.D.1992). On this question of state law, of course, the Supreme Court of North Dakota has the final say, and we are unauthorized to deviate from its determination. That court went on to hold that the use of unlawfully obtained drugs to induce the commission of a crime was entrapment as a matter of law. This holding, as the court today correctly concludes, is not binding on the federal courts; and, moreover, our cases require the application of different (indeed, contrary) principles in deciding whether an entrapment defense has been made out. I agree that the jury was free to conclude that the defendant did not establish entrapment in this case.
What I am unable to accede to is the court‘s conclusion that “the government‘s participation in the reverse sting was [not] sufficiently unpalatable to require a finding that [defendant‘s] due process rights were violated.” With respect, I disagree that the relevant facts here are not substantially different from those present in United States v. Huff, 959 F.2d 731 (8th Cir.1992) and other cases in which we have upheld so-called reverse stings. The distinguishing fact is that in none of those cases did it appear that the police operation was put in motion by acts that violated state law.
The court today evidently holds that it is not outrageous for sworn officers of the state to break the law. For me, official illegality must almost always be outrageous, for if the government will not obey the law, how can it
Finally, I concede that there is no indication that federal officers acted in an outrageous fashion in this case, because the original operation was under the direction of state authorities. But I do not know of any analogues of the bona fide purchase doctrine that would somehow cleanse this sting of its equities. But for outrageous official conduct this prosecution could not have occurred. I can think of no reason for a federal court to pass over its illicit origins.
MORRIS SHEPPARD ARNOLD
CIRCUIT JUDGE
Notes
In all actions accruing before February 8, 1992, brought to recover damages for injuries to a person or to property caused by the negligence or act or omission giving rise to strict liability in tort of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence or act or omission giving rise to strict liability in tort of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff, and all questions of negligence or act or omission giving rise to strict liability in tort and contributory negligence shall be for the jury.
Kummer‘s reliance on Abbate might be appropriate but for the fact that there was no evidence of either federal participation in the state proceedings, or of state participation in the federal proceedings. Indeed, Kummer conceded at oral argument that the investigation of him was not a joint state-federal investigation, but rather a “state operation from the beginning.”
If a plea discussion does not result in a plea of guilty... any statement made in connection with and relevant to the plea discussion or any resulting agreement, plea, or judgment is not admissible in any criminal or civil action or administrative proceeding against the person who made the plea offer.