United States v. Campa

474 F. Supp. 507, 1979 U.S. Dist. LEXIS 10316
CourtDistrict Court, S.D. Florida
DecidedAugust 17, 1979
DocketNo. 78-321-Cr-CA
StatusPublished
Cited by2 cases

This text of 474 F. Supp. 507 (United States v. Campa) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Campa, 474 F. Supp. 507, 1979 U.S. Dist. LEXIS 10316 (S.D. Fla. 1979).

Opinion

MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS

ATKINS, Chief Judge.

Defendant, Cesar Campa, moves this Court to dismiss the indictment and enter judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The defendant bases his motion on two grounds. First, he argues that the conduct of the law enforcement agents in this case was so outrageous as to violate the Due Process Clause of the United States Constitution. In accordance therewith, he prays a judgment of acquittal be entered by this Court. Alternatively, defendant contends that he was entrapped as a matter of law and a judgment of acquittal should be entered on those grounds. For the following reasons, the motions are DENIED.

The indictment against Campa alleges a conspiracy to possess with intent to distribute cocaine. The defendant correctly states that the evidence produced at trial shows Campa was not involved in an ongoing conspiracy at the time of the Drug Enforcement Agent’s “infiltration.” Campa argues that his conversations with the DEA agent and his lifelong friend, a paid informant, enticed him into believing that he would make millions of dollars; that the Government knowingly distributed cocaine which it made no attempt to recover; and that the case agent perjured himself and the Government knowingly used his false testimony at trial. The defendant suggests that these and other facts mandate the entry of a judgment of acquittal on his behalf.

I. DUE PROCESS

The record before this Court reflects no outrageous conduct on the part of the Government or its’ agent that could rise to the level of a due process violation. In Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1951), the Supreme Court stated that the Due Process Clause prohibits government action “that shocks the conscience.” None of the factors cited by the defendant or their cumulative weight in this case approaches that standard.

Defendant’s assertion involving the distribution of cocaine by the DEA agent is not particularly relevant to due process considerations. The fact that cocaine was pro[509]*509vided by the agents and was not subsequently recovered, thereby making it hypothetically available on the streets, does not violate any right of this defendant under the United States Constitution. See United States v. Graves, 556 F.2d 1319, 1325 (5th Cir. 1977).

The defendant also argues .Govern:ment misconduct based on the assertion that DEA agent Fernandez perjured himself. This contention stems from a supposed conflict between his sworn affidavit and his testimony at trial, his failure to testify in the Government’s case about two allegedly important meetings with defendant about which no DEA reports exist, a supposed mistranslation from Spanish to English of an important statement of defendant by Fernandez, and the failure of the Government tape recordings to corroborate the agent’s testimony before the grand jury relating to a statement made by Campa at a meeting with Fernandez and the paid informer. The defendant also alleges additional misconduct on the part of the Government in failing to record or produce recordings of those two controversial meetings about which Fernandez testified before the grand jury.

Accepting arguendo that these discrepancies do exist, there is no indication that they reflect anything more than omissions or contradictions based on Fernandez’s faulty memory and, therefore, should be properly handled through normal impeachment procedures. The idea that Fernandez wilfully perjured himself is unfounded speculation. Agent Fernandez was not a paid informant or a key witness promised leniency as in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971), or United States v. Brown, 462 F.Supp. 184 (S.D.N.Y. 1978). There is no indication that the agent is an amoral individual who presented uncorroborated testimony against a defendant with a self-serving motive. See United States v. Brown, supra at 188-89. Therefore, unlike the cases cited by defendant, the use of Fernandez’s uncorroborated testimony did not unacceptably compromise the integrity of defendant’s trial. Nor is this a case where the prosecutor knew the chief witness perjured himself before the grand jury as in United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974).

It is not this Court’s duty to decide whether the prosecution should have put on evidence of two controversial meetings in the Government’s main case. Defense counsel had knowledge of those meetings and did freely inquire about them. The defense clearly had the evidence based on Fernandez’s earlier testimony. This Court is, therefore, not faced with the problem of prosecutional suppression of material evidence as in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1975). Moreover, nothing produced at trial shows the failure of the Government to record, or produce recordings of certain meetings was wilfull, or that undisclosed evidence was material in a constitutional sense. See United States v. Agurs, supra, at 109-10, 96 S.Ct. 2392; Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

A relevant consideration in dealing with defendant’s enticement contention is that Campa stands accused of a contraband offense. It has been persuasively suggested that courts should show greater flexibility in their toleration of police conduct when dealing with criminal activity of this kind. See Hampton v. United States, 425 U.S. 484, 493, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1975), n.7 (Powell, J., concurring); United States v. Twigg, 588 F.2d 373, 378 (3d Cir. 1978), n.6.

Defendant cites the Hampton case and particularly the concurring opinion of Justice Powell in support of his motion. In Hampton, Justice Powell was unwilling, to join the plurality in concluding that under no set of circumstances neither due process nor the Supreme Court’s supervisory power “could support a bar to conviction in any case where the Government is able to prove predisposition.” 425 U.S. at 495, 96 S.Ct. at 1653. However, in a footnote Justice Powell further elucidated the narrow range of cases to which the “outrageous conduct” defense would be applicable:

[510]*510“I emphasize that the cases, if any, in which proof of predisposition is not dis-positive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it would bar conviction.

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Bluebook (online)
474 F. Supp. 507, 1979 U.S. Dist. LEXIS 10316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-campa-flsd-1979.