Government conduct not "outrageous," prior acts admissible

[CASE] The 9th Circuit affirms a conviction for conspiracy to possess cocaine with intent to distribute, discussing jurisdiction, government conduct, and more. U.S. v. Holler, --- F.3d ---, 2005 WL 1384349 (9th Cir. June 13, 2005), Find Result - 2005 WL 1384349.

The investigation of the defendant involved a sting and a confidential informant (CI).

Holler argues that the district court erred by not dismissing his indictment for outrageous government conduct because (1) the CI had a history of misconduct as an informant and the DEA was aware of the prior misconduct, (2) the CI engaged in misconduct in this case, including the theft of drug money, and (3) the government ratified the CI's behavior.

On appeal, the claim is reviewed de novo, using a clearly erroneous standard for the district court's findings of fact.

"Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed ." * * *To meet this high standard, the "governmental conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice." * * * Here, the CI's conduct was neither attributable to the government, nor was it "so excessive, flagrant, scandalous, intolerable, and offensive as to violate due process." * * * Moreover, * * * "[i]t is unrealistic to expect law enforcement officers to ferret out criminals without the help of unsavory characters."

Accordingly, we find that the misconduct complained of in this case, even if proved, does not rise to the level required to establish outrageous government conduct.

(citations omitted).
The court discusses Rule 404(b) and prior act evidence:

According to the four-part test applied in this circuit, prior act evidence is admissible if (1) it proves a material element of the charged offense; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the act; and (4) in cases where knowledge and intent are at issue, the act is similar to the offense charged. * * * Additionally, Federal Rule of Evidence 403 requires the district court to balance the probative value of the evidence against its prejudicial effect. * * *
To knowingly and intentionally possess contraband with the intent to distribute is a specific intent offense. * * * defendant's prior conviction for possession of contraband with the intent to distribute is relevant to a material element of conspiracy to possess contraband with the intent to distribute and attempted possession of contraband with the intent to distribute, "because it tends to show knowledge." * * *
Additionally, any error with respect to the admission of prior act evidence was harmless for two reasons. First, the judge gave a limiting instruction. * * * Second, there was an abundance of substantial and direct evidence against Holler, * * *.

(citations and more omitted).

Filed in: cases, 404(b), prosecutorial-misconduct