JAMES M. CARTER, Circuit Judge:
This is an appeal by Richard A. Schmidt of his conviction under a two count indictment for importation and conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 and 963, respectively. Schmidt waived his right to a jury and following trial was found by the district judge to be guilty on both counts. He was sentenced to five years imprisonment on each count, the sentences to run concurrently-
Schmidt states three grounds upon which he contends his conviction should be reversed. First, statements made to DEA agents in Peru were allegedly improperly admitted because they were the result of coercive conduct by the Peruvian government. Second, the physical evidence presented at trial is claimed to be the inadmissible product of the coerced statements. Third, the United States government is alleged to have prevented the defense from investigating the crime in Peru. None of these contentions is meritorious. We affirm.
I. FACTS
Appellant Richard A. Schmidt and James Hooker conspired to illegally import approximately five pounds of cocaine from Lima, Peru to Tacoma, Washington. Pursuant to this plan, on the evening of January 6, 1976, Schmidt scuba-dived underneath the freighter “Santa Mercedes” which was moored in the Callao Harbor, Lima, Peru. He attached a metal canister containing the cocaine to the rolling chock of the ship. The ship was leaving that evening for Tacoma.
When he surfaced Schmidt was spotted by Peruvian military guards. Since he was in a restricted area the guards suspected him of espionage or sabotage and after a chase apprehended him. Although the departure of the Santa Mercedes was delayed shortly because of the commotion in the harbor, the ship received clearance and left on route to Tacoma before the Peruvian military could search its hull.
Schmidt was interrogated immediately by the Peruvian navy intelligence police. He had no clothes because he had worn only his wetsuit to dive. He was given a blanket. Schmidt then told the authorities that Commander Petrozzi, a Peruvian military officer, could vouch for him and the commander was summoned. Upon arrival Commander Petrozzi offered his assistance to Schmidt and arranged for Schmidt to be escorted to find his clothes on the beach where he had left them.
At the beach the authorities discovered not only Schmidt’s clothing, but also James Hooker who was hiding in the rocks nearby. Hooker had taken Schmidt to the restricted area of Callao Harbor earlier that evening in a rubber boat. When Schmidt was being chased by the harbor guards Hooker was observed to flee the harbor in the rubber boat. Apparently he was waiting in the rocks to see if Schmidt would return. Hooker was taken into custody. Schmidt’s clothing disappeared unexplainedly, thought by Schmidt to be stolen by some of his guards. He was given other clothes the next day.
A search of the area near where Hooker was caught revealed a car which contained, among other items, Hooker’s passport, some rubber tubing, a motor and a rubber boat. The boat was later determined to have been purchased by Richard Schmidt in Seattle, Washington in December, 1975, under an assumed name.
Other important physical evidence was uncovered by the Peruvian authorities dur[1060]*1060ing their investigation. In James Hooker’s apartment a metal canister with gaskets and a clear plastic plate which sealed its top were found. A search of the apartment of James Hooker’s father, Cecil Hooker, uncovered Richard Schmidt’s passport.1
Schmidt was abusively interrogated by the Peruvian naval authorities. For the first few days he resisted interrogations at which he was slapped and hit for refusing to answer questions.2 Finally, however, after a nighttime interrogation at which he was again slapped and hit and repeatedly had his head dunked in a bucket of water, Schmidt confessed his participation in the cocaine smuggling conspiracy. Throughout the entire ordeal Schmidt asked to see either an attorney or a representative of the American Embassy, but was refused. Once he had confessed Schmidt was returned to his cell, but within a few days he became ill, unable to eat, and was transferred to a hospital for treatment. About a week had elapsed since Schmidt’s capture.
At the hospital custody over Schmidt was conveyed by the navy to the narcotics division of the Peruvian Investigative Police (PIP). Officials of the PIP attempted to obtain a second confession from Schmidt while he was still in the hospital, but Schmidt refused to cooperate. After a two-day recovery period at the hospital Schmidt was removed to the prison at PIP headquarters.
The PIP interviewed Schmidt frequently over the next week, at all times of day or night, attempting to corroborate the statements he had made to the naval officials. Again Schmidt was slapped and hit for refusing to cooperate, but continued to insist on seeing an attorney or a representative of the U.S. Embassy. Although his later testimony is inconclusive, apparently Schmidt repeated some of his earlier admissions, but refused to fully corroborate the coerced confession. Nevertheless, based mostly on the information extracted from Schmidt by the Peruvian navy, the PIP typed up a complete statement and made Schmidt sign it. Schmidt refused to sign until he feared another dunking session. Even then he withheld his signature until he was permitted to append the words “forced signature” to two of the three pages of the document.3
On January 16, 1976, during his confinement at PIP headquarters but before he had been forced to sign the statement, Schmidt was visited by two American agents of the Drug Enforcement Administration (DEA). The agents were attempting to ascertain whether the attempt to smuggle cocaine into the United States had been successful and whether any still undisclosed persons had been involved. They first advised Schmidt of his Miranda rights which he said he understood. Then Schmidt admitted his own participation in the conspiracy but refused to implicate any others until he was returned to the United States.
One or two subsequent meetings were held between agents of the DEA and [1061]*1061Schmidt, but at these meetings Schmidt was less willing to discuss even his own involvement. His only further admission occurred when he was criticized for placing the canister on a dangerous part of the ship. Schmidt expressed that he had not intended to endanger anyone by doing so.
The Santa Mercedes arrived on schedule in Tacoma, Washington on January 23, 1976. DEA divers found a metal cylinder identical to the one discovered in Hooker’s apartment in Peru attached to the rolling chock of the ship. The cylinder’s contents were analyzed and found to contain 85 ounces (approximately 2.4 kilograms or 5.3 pounds) of 70% pure cocaine with an estimated street value of over $340,000. The cocaine was wrapped in a plastic bag and sealed with surgical tubing like that found in Hooker’s car at the beach in Peru.
On February 5, 1976, Schmidt escaped from prison in Peru. Four days later charges were filed against him in the United States. He was subsequently arrested in Seattle on June 11, 1976.
Free access — add to your briefcase to read the full text and ask questions with AI
JAMES M. CARTER, Circuit Judge:
This is an appeal by Richard A. Schmidt of his conviction under a two count indictment for importation and conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 and 963, respectively. Schmidt waived his right to a jury and following trial was found by the district judge to be guilty on both counts. He was sentenced to five years imprisonment on each count, the sentences to run concurrently-
Schmidt states three grounds upon which he contends his conviction should be reversed. First, statements made to DEA agents in Peru were allegedly improperly admitted because they were the result of coercive conduct by the Peruvian government. Second, the physical evidence presented at trial is claimed to be the inadmissible product of the coerced statements. Third, the United States government is alleged to have prevented the defense from investigating the crime in Peru. None of these contentions is meritorious. We affirm.
I. FACTS
Appellant Richard A. Schmidt and James Hooker conspired to illegally import approximately five pounds of cocaine from Lima, Peru to Tacoma, Washington. Pursuant to this plan, on the evening of January 6, 1976, Schmidt scuba-dived underneath the freighter “Santa Mercedes” which was moored in the Callao Harbor, Lima, Peru. He attached a metal canister containing the cocaine to the rolling chock of the ship. The ship was leaving that evening for Tacoma.
When he surfaced Schmidt was spotted by Peruvian military guards. Since he was in a restricted area the guards suspected him of espionage or sabotage and after a chase apprehended him. Although the departure of the Santa Mercedes was delayed shortly because of the commotion in the harbor, the ship received clearance and left on route to Tacoma before the Peruvian military could search its hull.
Schmidt was interrogated immediately by the Peruvian navy intelligence police. He had no clothes because he had worn only his wetsuit to dive. He was given a blanket. Schmidt then told the authorities that Commander Petrozzi, a Peruvian military officer, could vouch for him and the commander was summoned. Upon arrival Commander Petrozzi offered his assistance to Schmidt and arranged for Schmidt to be escorted to find his clothes on the beach where he had left them.
At the beach the authorities discovered not only Schmidt’s clothing, but also James Hooker who was hiding in the rocks nearby. Hooker had taken Schmidt to the restricted area of Callao Harbor earlier that evening in a rubber boat. When Schmidt was being chased by the harbor guards Hooker was observed to flee the harbor in the rubber boat. Apparently he was waiting in the rocks to see if Schmidt would return. Hooker was taken into custody. Schmidt’s clothing disappeared unexplainedly, thought by Schmidt to be stolen by some of his guards. He was given other clothes the next day.
A search of the area near where Hooker was caught revealed a car which contained, among other items, Hooker’s passport, some rubber tubing, a motor and a rubber boat. The boat was later determined to have been purchased by Richard Schmidt in Seattle, Washington in December, 1975, under an assumed name.
Other important physical evidence was uncovered by the Peruvian authorities dur[1060]*1060ing their investigation. In James Hooker’s apartment a metal canister with gaskets and a clear plastic plate which sealed its top were found. A search of the apartment of James Hooker’s father, Cecil Hooker, uncovered Richard Schmidt’s passport.1
Schmidt was abusively interrogated by the Peruvian naval authorities. For the first few days he resisted interrogations at which he was slapped and hit for refusing to answer questions.2 Finally, however, after a nighttime interrogation at which he was again slapped and hit and repeatedly had his head dunked in a bucket of water, Schmidt confessed his participation in the cocaine smuggling conspiracy. Throughout the entire ordeal Schmidt asked to see either an attorney or a representative of the American Embassy, but was refused. Once he had confessed Schmidt was returned to his cell, but within a few days he became ill, unable to eat, and was transferred to a hospital for treatment. About a week had elapsed since Schmidt’s capture.
At the hospital custody over Schmidt was conveyed by the navy to the narcotics division of the Peruvian Investigative Police (PIP). Officials of the PIP attempted to obtain a second confession from Schmidt while he was still in the hospital, but Schmidt refused to cooperate. After a two-day recovery period at the hospital Schmidt was removed to the prison at PIP headquarters.
The PIP interviewed Schmidt frequently over the next week, at all times of day or night, attempting to corroborate the statements he had made to the naval officials. Again Schmidt was slapped and hit for refusing to cooperate, but continued to insist on seeing an attorney or a representative of the U.S. Embassy. Although his later testimony is inconclusive, apparently Schmidt repeated some of his earlier admissions, but refused to fully corroborate the coerced confession. Nevertheless, based mostly on the information extracted from Schmidt by the Peruvian navy, the PIP typed up a complete statement and made Schmidt sign it. Schmidt refused to sign until he feared another dunking session. Even then he withheld his signature until he was permitted to append the words “forced signature” to two of the three pages of the document.3
On January 16, 1976, during his confinement at PIP headquarters but before he had been forced to sign the statement, Schmidt was visited by two American agents of the Drug Enforcement Administration (DEA). The agents were attempting to ascertain whether the attempt to smuggle cocaine into the United States had been successful and whether any still undisclosed persons had been involved. They first advised Schmidt of his Miranda rights which he said he understood. Then Schmidt admitted his own participation in the conspiracy but refused to implicate any others until he was returned to the United States.
One or two subsequent meetings were held between agents of the DEA and [1061]*1061Schmidt, but at these meetings Schmidt was less willing to discuss even his own involvement. His only further admission occurred when he was criticized for placing the canister on a dangerous part of the ship. Schmidt expressed that he had not intended to endanger anyone by doing so.
The Santa Mercedes arrived on schedule in Tacoma, Washington on January 23, 1976. DEA divers found a metal cylinder identical to the one discovered in Hooker’s apartment in Peru attached to the rolling chock of the ship. The cylinder’s contents were analyzed and found to contain 85 ounces (approximately 2.4 kilograms or 5.3 pounds) of 70% pure cocaine with an estimated street value of over $340,000. The cocaine was wrapped in a plastic bag and sealed with surgical tubing like that found in Hooker’s car at the beach in Peru.
On February 5, 1976, Schmidt escaped from prison in Peru. Four days later charges were filed against him in the United States. He was subsequently arrested in Seattle on June 11, 1976.
One week prior to trial, counsel for Schmidt sent an attorney, Jeffrey Stein-born, to Lima to investigate the case and take depositions. Steinborn intended to depose all the military personnel in Peru who had participated in the capture or interrogation of Schmidt. In addition he intended to depose several Peruvian lawyers and a reverend who knew of conditions in Peruvian jails.
Upon arrival in Lima, Steinborn was intimidated by what he called the “state of marshal law” existing in Peru.4 He distrusted not only the Peruvian officials, but also the United States officials stationed in Peru, contending that the officials of both countries were seeking to frustrate his investigation. Ultimately Steinborn returned to Seattle having been unable to obtain any depositions.
Schmidt moved to dismiss the indictment because the U.S. government allegedly interfered with the defense investigation in Peru. He also moved to suppress all statements, both oral and written, made to either Peruvian or American authorities in Peru. After a pretrial hearing the trial court found the United States representatives had not interfered with the investigation. The oral and written statements made to the Peruvian naval authorities and the PIP were suppressed as involuntary, but Schmidt’s statements to the American DEA agents were found voluntary and admitted.
At trial Schmidt denied making any incriminating admissions to the DEA in Peru. However, the trial judge made a factual finding that the admissions were made and reaffirmed his determination that they were voluntary. The physical evidence produced by the investigation of the Peruvian officials was admitted over the objection that it was tainted fruit of the illegal confession. Schmidt was convicted by the court sitting without a jury.
II. ISSUES
A. Could the trial court reasonably conclude that Schmidt’s statements to the American DEA agents in Peru were voluntary?
[1062]*1062B. Was the physical evidence of the crime inadmissible as the product of the coerced confession obtained by the Peruvians?
C. Was the trial court’s finding that the United States government in Peru did not interfere with the defense investigation clearly erroneous?
III. DISCUSSION
A. Admissibility of the Statements made to DEA Agents.
When a statement is claimed to be inadmissible as the product of a prior coerced confession the issue is solely one of voluntariness. The fact that an admission was once coerced does not by itself automatically taint any future admissions. The Supreme Court explained:
“Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1946).
See Tanner v. Vincent, 541 F.2d 932, 936-37 (2 Cir. 1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed .2d 782 (1977); United States v. Toral, 536 F.2d 893, 896 (9 Cir. 1976); Knott v. Howard, 511 F.2d 1060 (1 Cir. 1975); United States v. Shea, 436 F.2d 740 (9 Cir. 1970); United States v. Knight, 395 F.2d 971 (2 Cir. 1968), cert. denied, 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed.2d 249 (1969); Cotton v. United States, 371 F.2d 385, 393 (9 Cir. 1967).
Accordingly the inquiry must focus on whether the conditions which caused the first inadmissible admission also caused the later admission. This depends on
“. . . the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances. Lisenba v. California, 314 U.S. 219, 240, 62 S.Ct. 280, 86 L.Ed. 166. The voluntariness or involuntariness of a confession is determined by a conclusion as to whether the accused, at the time he confesses, is in possession of ‘mental freedom’ to confess or deny a suspected participation in a crime.” Lyons v. Oklahoma, 322 U.S. 596, 602, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481 (1944).
By necessity this test requires an ad hoc determination based on the totality of the particular circumstances of each case.
This determination is primarily the responsibility of the trial court. Brulay v. United States, 383 F.2d 345, 349 (9 Cir. 1967), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). Although on appeal we will closely scrutinize the findings of trial judges and juries regarding the ultimate issue of voluntariness of confessions, their decisions on the basis of disputed facts must be upheld unless they are clearly erroneous. United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972).
Specifically we must determine whether the trial court could reasonably conclude that the oppressive treatment given Schmidt by the Peruvian authorities did not cause his subsequent willingness to make limited admissions to the American DEA agents. From this perspective it is evident that different inferences can be drawn fairly from the facts and the trial judge’s decision to infer that the admissions to the DEA were voluntary is controlling.
Furthermore, our review of the record convinces us that the trial court's inference was correct. Schmidt’s statement to the DEA agents was the result of his own free will. Similarly, the existence of the confession itself did not cause Schmidt to forgo the assertion of his constitutional rights.
[1063]*1063The defendant would have us conclude that because the DEA and the PIP occasionally shared information on cases of importance to both and because the United States has given financial assistance to the PIP through the DEA to assist in the control of drug traffic to the United States, the investigation in this case was a “joint” operation. The trial transcript does not bear this contention out. Rather it is evident from the record that each agency — the DEA and the PIP — undertook essentially separate investigations. The minimal interaction that did occur cannot support the contention that the conduct of the PIP should be attributed to the American DEA on an agency rationale.
Schmidt is shown by the record to be an extremely strong-willed individual. Upon his capture by a foreign power and his incarceration in deplorable conditions he staged a nearly successful escape attempt within one day. Subjected to very abusive treatment by the Peruvians, Schmidt continually refused to respond to questions and demanded his rights under American law. Only after a coercive, all-night interrogation session did he confess. Even then, when faced with renewed attempts to elicit incriminating statements by a different arm of the Peruvian government, Schmidt refused to repeat his confession. Not until faced with what he thought would be a second exposure to the dunking treatment did he agree to sign the typed confession. At the conclusion of this entire ordeal, when Schmidt was being forced to sign the papers, he still asserted his will by including the words “forced signature”. Speaking of this event, Schmidt testified at trial, “. .1 was still there and I was still— still had the capacity to resist.” R.T. 274. This record of continual defiance belies the notion that Schmidt had lost his will to resist.
More importantly, however, the circumstances of the DEA interrogation of Schmidt show that neither the earlier coercive treatment he received from the Peruvian government nor the existence of the prior confession itself can be properly considered the cause of his choice to reveal to the Americans the general details of his part in the criminal scheme. Schmidt testified at trial that the agents were honest and friendly and that he was not intimidated by them. R.T. 290-304. Although he denied making any incriminating admissions, Schmidt admitted that any statements he did make were not coerced.5 R.T. 315.
A critical distinction between the conditions which gave rise to the coerced confession and those in which Schmidt chose to talk to the DEA relates to the sovereign law which controlled the interrogation. In the earlier interrogations Schmidt was subject to the protection or lack of protection provided by Peruvian law. In the latter interrogation by the DEA Schmidt was protected by American law, specifically the [1064]*1064United States Constitution. Schmidt recognized this distinction. At trial when he testified about the DEA interrogation he admitted:
“. . .1 knew some time, somebody from the United States was going to be talking to me and they are going to be asking me the same questions that I had been asked for twelve days now, and I knew what I — that I didn’t want to say anything to anybody, and although I couldn’t stop from saying anything to the Peruvians because of the methods they used, I figured that with the same — the same thing couldn’t be done to me by anybody from the United States . .” R.T. 558-59 (Emphasis added).
Schmidt knew he would not be subjected to any oppressive treatment by the DEA agents.
Furthermore, Schmidt knew he had the constitutional right to refuse to talk to the Americans and he had the right to an attorney before he permitted them to interrogate him. He had been trained for two years in competent American law schools.6 During that training he took at least one course on criminal law. Additionally, the agents informed him of his Miranda rights in detail each time they met with him.7 That he was well aware of his Miranda rights is further attested by Schmidt’s repeated attempts to convince his Peruvian interrogators to afford him these rights as an American citizen.
Also, Schmidt knew his prior confession to the Peruvian naval authorities and the forced signature on the statement prepared by the PIP were inadmissible in any American prosecution. His legal training was more than adequate to impute this knowledge to him. The Miranda warnings he received also carry the implicit statement oí this fact.
Finally, Schmidt’s own conduct at the DEA interrogation suggests the voluntariness of his decision to give a statement. After willingly discussing his own part in the conspiracy he chose to assert his Miranda rights and refused to further implicate any other persons until he was returned to the United States. At subsequent meetings Schmidt refused even to discuss his own involvement in the crime.
Schmidt had not lost his will to resist. He did not fear coercive treatment by the American DEA agents. He knew well his constitutional rights to remain silent and to have an attorney present at questioning. He even chose at one point to assert his right to remain silent. He knew his prior confession and the forced signature could not be used against him in an American prosecution. The totality of the circumstances strongly support the trial court’s finding that Schmidt’s limited statement to the DEA was freely made. It was not the product of the earlier abusive treatment by the Peruvian government or of the coerced confession itself.
B. Admissibility of the Physical Evidence.
The government’s proof at trial included the rubber boat, surgical tubing and Hook[1065]*1065er’s passport found in the ear on the beach, the metal canister found in James Hooker’s apartment, Richard Schmidt’s passport found in Cecil Hooker’s apartment, and the metal canister with the cocaine found underneath the Santa Mercedes in Tacoma. Schmidt recognizes that physical evidence will not be suppressed because of illegal conduct by foreign officials which violates the Fourth Amendment. Stonehill v. United States, 405 F.2d 738, 742-44 (9 Cir. 1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969), reh. denied, 396 U.S. 870, 90 S.Ct. 39, 24 L.Ed.2d 125 (1969). Rather, he contends the physical evidence was a product of his coerced confession making its introduction at trial a violation of his Fifth Amendment right against self-incrimination.
This argument depends on (1) a legal showing that the exclusionary rule under the Fifth Amendment applies to physical evidence which is the product of statements illegally obtained by foreign officials, and (2) a factual showing that the disputed physical evidence was a product of Schmidt’s coerced statements. The legal issue is apparently one of first impression which presents the interesting question of the applicability of the exclusionary rule in Fifth Amendment cases involving illegal conduct by foreign officials. However, we do not resolve that issue because the physical evidence in dispute has not been shown to be the product of any illegally coerced statements made by Richard Schmidt.
The rubber boat, surgical tubing and passport were discovered in the car at the beach before Schmidt had been subjected to abusive treatment and before he made any coerced statements. Soon after his apprehension Schmidt was assisted by his friend, Commander Petrozzi, who interceded on Schmidt’s behalf to help him find his clothing at the beach. There the navy police found Hooker and the car. Schmidt had voluntarily led the police to this location to find his clothing.8 See generally Agius v. United States, 413 F.2d 915, 919-20 (5 Cir. 1969), cert. denied, 397 U.S. 992, 90 S.Ct. 1116, 25 L.Ed.2d 399 (1970) (Suspect willingly led police to his car where incriminating evidence was in plain view.). This evidence was discovered at least an entire day before any incriminating statements were forced from Schmidt.
Likewise, the search of the apartments of James and Cecil Hooker cannot be tied to any statements coerced from Schmidt. The record does not explain what actually motivated these searches. This alone is fatal to Schmidt’s contention, particularly since the searches can be easily explained without reference to any of Schmidt’s statements. Once James Hooker was discovered at the beach it would be normal investigative procedure to search his apartment. Hooker’s father was suspected of assisting an attempted escape from the PIP prison. The search of his apartment was related to this suspicion, not Schmidt’s statements.
Finally, the search of the Santa Mercedes was the product of Schmidt’s freely given statements to the DEA. Schmidt had voluntarily disclosed the smuggling scheme to the American agents seven days before the Santa Mercedes arrived in the United States. It was this disclosure which was relayed to Seattle and which eventuated in the search of the hull of the Santa Mercedes, not Schmidt’s coerced disclosures to the Peruvian authorities.9
[1066]*1066The disputed physical evidence was obtained independently of the statements coerced from Schmidt by the Peruvian authorities. Its introduction at trial was not error.
C. Alleged United States Government Interference with the Defense Investigation.
In conjunction with his pretrial motion to suppress Schmidt also argued the indictment should be dismissed because the U. S. representatives in Peru interfered with his investigator. After a lengthy pretrial hearing the trial judge made the specific finding that the United States government in Peru "did not interfere with the defense investigation.10 On appeal defendant’s assertion that his investigator’s efforts were obstructed must be construed to be a challenge of the sufficiency of the evidence to support the trial court’s finding.
The resolution of conflicting facts or conflicting inferences at a pretrial hearing is another responsibility which is primarily one for the trial judge. Findings of fact made by the trial court in pretrial proceedings are conclusive unless clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1962); United States v. Hart, 546 F.2d 798, 801-02 (9 Cir. 1976) (en banc) cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); United States v. Welp, 469 F.2d 688 (9 Cir. 1972); United States v. Page, 302 F.2d 81, 84-85 (9 Cir. 1962) (en banc). See Green v. United States, 128 U.S.App.D.C. 408, 411, 389 F.2d 949, 952 (1967); Jackson v. United States, 122 U.S.App.D.C. 324, 326-327, 353 F.2d 862, 864-65 (1965). See also Wright, Federal Practice & Procedure; Criminal § 375 at 18. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1947).
The evidence adduced at the pretrial hearing and the trial, particularly the testimony of the defense investigator, Jeffrey Steinborn, reveals more than adequate support for the findings of the trial court. Steinborn contends the U.S. Consul General denied him the right to take depositions. But he admits this information was secondhand from a lower embassy official and that after receiving this information he received instructions as to whom he should contact to set the dates and times for his intended depositions. The DEA agent who was to represent the U.S. Attorney at the depositions met Steinborn and offered his assistance, but was told no depositions were yet scheduled.
[1067]*1067No depositions ever were scheduled, but not because the Consul General prohibited them. Steinborn admitted he personally chose not to take the risk of trying to depose any Peruvian military personnel. The only other person he actively sought to depose was a Peruvian attorney who ultimately refused to cooperate.
Steinborn also contends that during his initial meeting wtth_the Consul General he was intimidated into restricting his investigation. Yet he can point to nothing other than the “atmosphere” of the discussion to support his contention. At this meeting the Consul General explained the political and legal situation in Peru to Steinborn, warning him that his investigation might upset the Peruvian authorities. Steinborn was also told that because the U.S. Embassy’s position in Peru was “not very strong”, it would not be able to help him much if he got into serious trouble. This information must have been disconcerting, but was not an act of interference by United States officials.
Not only did the U.S. Embassy refrain from interfering with the investigation, it assisted where possible. In addition to warning Steinborn to be cautious in his dealings with the Peruvian government, the Embassy assigned a specific DEA agent to be available to assist Steinborn upon request. No request for assistance was ever made. Twice the Embassy helped Stein-born obtain entrance to Lurigancho Prison to interview prisoners. Although the Embassy stood ready to help depose them, the prisoners would communicate to Steinborn only in private, so could not be deposed. Still, Steinborn took unofficial statements from some of the prisoners which the U.S. Consul General offered to mark with an official stamp. Steinborn refused because he did not want the Consul General to read the statements. At one point Steinborn even rejected an offer of assistance from the U.S. Attorney in Seattle.
Steinborn unjustifiedly considered the U.S. officials in Peru to be his adversaries and refused their assistance. Although conditions in Peru made his investigation difficult, responsibility for Steinborn’s failure to obtain relevant depositions cannot be placed on the United States.
IV. CONCLUSION
The judgment of the district court is affirmed.