that "duress introduced by an underworld loan shark, through the failure of the government's informant to repay his loan" constitutes outrageous government misconduct. We disagree.
In this case, unlike Greene, Darling did not represent himself to be a member of the syndicate, nor did he threaten Jacobs. The source of Jacobs' pressure or "duress" was Ben, Buck, and their underworld confederates. In agreeing to act as guarantor of Darling's "juice" loan, Jacobs voluntarily undertook the risk of such pressure or duress in the event of Darling's default. Moreover, the Government points out, and Jacobs does not dispute, that Darling defaulted on the loan before he agreed to cooperate with the Government. Given this fact, Jacobs risked pressure from the underworld loan sharks in the event of Darling's default before the Government ever became involved in the situation. Indeed, Jacobs essentially created the risk or "duress" of which he now complains by agreeing to arrange a "juice" loan for Darling in the first instance; he conveniently overlooks the fact that when Darling asked him to do so, he simply could have said no. Because Jacobs has presented no facts which suggest that the Government induced Jacobs to commit the charged offenses through compulsion or duress, we reject this argument.
Jacobs also complains that the Government acted outrageously because it engineered and directed the narcotics offenses from beginning to end. Specifically, Jacobs claims that the Government, through Darling, manufactured the narcotics offenses in two ways: by initiating the offenses with an individual who had no history of engaging in narcotics trafficking and by supplying "much technical know-how." We analyze each of these claims separately.
First, Jacobs claims that Darling initiated the narcotics transaction with Jacobs despite his obvious reluctance to engage in narcotics trafficking and his ignorance of it. The Government, however, vigorously denies that Darling initiated the narcotics transaction with Jacobs. To the contrary, the Government claims that Jacobs introduced the subject of narcotics to Darling, causing the Government to shift the focus of its investigation from the "juice" loan and illegal bookmaking to narcotics.
Because we believe that the issue of initiation is a material issue of fact which is more appropriately decided after all of the evidence has been presented at trial, at this time, we are unable to conclude as a matter of law that the Government acted outrageously by introducing the subject of narcotics to Jacobs. See Richter, 610 F. Supp. at 498 (where the court concluded that similar material factual disputes between the Government and the defendants precluded a finding of outrageous government misconduct). Although Jacobs and Rasmussen argue that the Court should resolve this factual discrepancy by conducting a hearing prior to trial, "[a] trial court need only grant an evidentiary hearing on the issue of outrageous government conduct when the defendant has presented specific facts that are sufficient to raise a significant doubt about the propriety of the Government's actions." Swiatek, 819 F.2d at 725.
In this case, Jacobs has failed to make such a showing. Even if Darling did propose the idea of repaying the "juice" loan by selling narcotics, we do not believe that a government agent's power of suggestion, by itself, necessarily renders the Government's conduct outrageous. This circuit has stated that "the Constitution does not require the government to have a preexisting good faith basis for suspecting criminal activity before initiating an undercover investigation." Miller, 891 F.2d at 1269. Moreover, regardless of who introduced the subject of narcotics, once it was introduced, we find it noteworthy that Jacobs hesitated only long enough to produce Rasmussen as a buyer. In addition, he participated to some extent in the negotiation of price and method of distribution, arranged for the actual exchange of the narcotics, and even volunteered his office for the exchange. Ultimately, of course, Jacobs accepted delivery of the 20 ounces of cocaine.
As an additional basis for urging us to find that the Government engineered the entire narcotics transaction, Jacobs contends that the Government supplied much technical "know-how" to the narcotics transaction. To bolster this argument, Jacobs points to his own ignorance of narcotics trafficking and to his assertion during the course of the undercover investigation that in the past, he had refused others' requests for illicit drugs that he could have obtained as a dentist. Jacobs' ignorance or lack of experience in narcotics trafficking, however, is not the focus of our inquiry here; our inquiry is limited to an objective review of the Government's conduct.
In this case, the Government used its informant to gain the confidence of Jacobs and supplied its informant with the narcotics necessary to consummate the transaction with Jacobs and Rasmussen. This, however, is not atypical. However unsavory, the use of an informant and the offer of a reasonable inducement are recognized means of investigating crime. See Kaminski, 703 F.2d at 1009; see also Miller, 891 F.2d at 1268. Indeed, this circuit has repeatedly observed that "the mere offer to supply contraband, or even the supplying thereof, does not in and of itself constitute outrageous governmental conduct." D'Antoni, 874 F.2d at 1220 (citing other cases); see also Hampton v. United States, 425 U.S. 484, 491, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). Unfortunately, the means employed here are often the only effective and practical means of ferreting out drug crime.
Admittedly, the transcripts reveal that Darling was well-versed in the language of narcotics trafficking. So was Rasmussen, the buyer produced by Jacobs. While the transcripts also reveal that Jacobs professed his ignorance and lack of experience in narcotics trafficking, we are not persuaded that the purchase and sale of cocaine requires much technical "know-how" or a high level of sophistication. This especially holds true for someone like Jacobs, who holds an advanced degree and, as a dentist, is capable of prescribing drugs and is undoubtedly somewhat familiar with drug parlance. Thus, this argument, based on the Government's "over-involvement" in the narcotics offenses, fails.
Similarly, Jacobs' attempt to liken the Government's "over-involvement" in this case to that in United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) fails. In Twigg, the government informant initiated contact with the defendants and proposed the idea of establishing a laboratory where they could manufacture narcotics. The Government provided a farmhouse as the location of the illegally operated laboratory, supplied chemicals and glassware, and facilitated the purchase of the bulk of the materials used. In addition, the government informant furnished all of the laboratory expertise and performed the lion's share of the manufacturing while the defendants provided minimal assistance. Under these circumstances, the Third Circuit held that governmental involvement in the criminal activities at issue "reached 'a demonstrable level of outrageousness.'" Twigg, 588 F.2d at 380.
Significantly, however, elsewhere in its opinion, the court in Twigg drew a distinction between an undercover investigation into the sale of illegal drugs and an undercover investigation into an illicit drug manufacturing operation. In distinguishing the two, the court explained:
The sale of an illegal drug [is] a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory. In such a situation the practicalities of combating drug distribution may require more extreme methods of investigation, including the supply of ingredients which the drug ring needs.
Twigg, 588 F.2d at 378.
In contrast to Twigg, this case clearly involved an undercover investigation into the sale of narcotics. Moreover, unlike the defendants in Twigg, Jacobs and Rasmussen offered more than minimal assistance to the narcotics transaction in this case, as more fully discussed above. Thus, the defendants' reliance on Twigg to support their claim of outrageous government misconduct is inapposite.
Finally, we note that this circuit has rejected claims of outrageous government misconduct under circumstances more egregious than those presented here. See, e.g., Miller, 891 F.2d at 1268-69 (where the government informant was employed by government agency on a contingent fee arrangement, continued to use cocaine while in government's employ, and had been sexually intimate with defendant); Williams, 858 F.2d at 1225 (where the government informant was persuaded to thwart the government's investigation and to consider harming witnesses); United States v. Shoffner, 826 F.2d 619, 626 (7th Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 356, 98 L. Ed. 2d 381 (1987) (where government informant had familial and sexual relationships with several of the defendants and received a government-financed abortion). By comparison, the Government's investigative acts in this case do not rise to the level of outrageous misconduct. Instead, they may more properly be the subject of an entrapment defense at trial. See United States v. Valona, 834 F.2d 1334 (7th Cir. 1987).
Accordingly, at this time, the Court denies Jacobs' motion to dismiss the indictment on grounds of outrageous government misconduct.
Having rejected Jacobs' claim of outrageous government misconduct, we must also reject Rasmussen's claim, which is considerably more attenuated for several reasons. First, Rasmussen arguably lacks standing to assert a claim of outrageous government misconduct. See United States v. Bogart, 783 F.2d 1428, 1433 (9th Cir. 1986), vacated on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986) ("A defendant does not have standing to raise a due process violation suffered by a third party"); cf. Twigg, 588 F.2d at 382 ("We are reluctant to establish a per se rule barring the use of [the outrageous government misconduct] defense to anyone who was not directly induced by a government agent"). Notably, Rasmussen states no independent basis for concluding that the Government acted outrageously. Nor does he contend that he was the target of the Government's outrageous conduct. Instead, Rasmussen rides the coattails of Jacobs' claim, and his arguments parallel those of Jacobs.
Second, assuming, without deciding, that Rasmussen has standing to pursue such a claim, his outrageous misconduct claim necessarily falls not only for the same reasons we rejected Jacobs' claim, but also for the additional reason that Rasmussen's relationship with Darling and the Government was appreciably more tangential than Jacobs' relationship with Darling and the Government. For the record, we note that Rasmussen had absolutely no interaction with Darling until Jacobs solicited Rasmussen's assistance. At that point, the Government's narcotics investigation was underway. In addition, the parties do not dispute that Rasmussen initiated contact with Darling at Jacobs' request. Furthermore, the record abounds with evidence that Rasmussen voluntarily participated in the narcotics transaction. Unlike Jacobs, Rasmussen had no involvement with the underworld loan sharks. Thus, Rasmussen cannot even argue that he participated in the narcotics transaction under any sort of pressure, compulsion, or duress. On the contrary, Rasmussen displayed expertise in narcotics trafficking, claimed that he had several different potential customers, and expressed little, if any, reluctance to become involved in the narcotics transaction.
Finally, Rasmussen's outrageous misconduct claim appears to be a thinly disguised claim of private or vicarious entrapment, a defense which the Seventh Circuit has clearly rejected. See United States v. Manzella, 791 F.2d 1263, 1269-70 (7th Cir. 1986). For these reasons, we deny Rasmussen's motion to dismiss the indictment on grounds of outrageous government misconduct.
B. Pre-Indictment Delay
As an additional ground for dismissing the indictment, Jacobs and Rasmussen argue that the Government's pre-indictment delay violated their due process rights. This circuit has adopted a two-part test for evaluating the merits of a due process claim based on pre-indictment delay. First, a defendant must establish that he has suffered actual and substantial prejudice. United States v. Valona, 834 F.2d 1334, 1337 (citing United States v. Lovasco, 431 U.S. 783, 789-90, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977)). Second, if a defendant satisfies the first step, then the court must balance the prejudice to the defendant against the Government's reasons for the delay. Valona, 834 F.2d at 1338 (citing Lovasco, 431 U.S. at 790). Generally, the statute of limitations constitutes a defendant's primary source of protection from pre-indictment delay. See Valona, 834 F.2d at 1337.
Here, however, Jacobs and Rasmussen have not disputed that the Government returned the indictment against them within the applicable statute of limitation. Nor has either of them satisfied the first step of this circuit's two-part test. Although the Government admits that there was a delay of approximately five years in returning the indictment, Jacobs has failed to make any showing of prejudice resulting from that delay. Jacobs merely contends that the indictment should be dismissed because the Government "has never given a valid excuse for [the] delay." It is not the Government's burden, however, to demonstrate a valid excuse for the delay; rather, "it is the defendant's burden to prove that he was prejudiced by the delay." United States v. Eckhardt, 843 F.2d 989, 994 (7th Cir.), cert. denied, 488 U.S. 839, 109 S. Ct. 106, 102 L. Ed. 2d 81 (1988). Jacobs has woefully failed to overcome that burden.
Rasmussen has likewise failed to establish actual prejudice resulting from the Government's delay. Rasmussen argues that dismissal is warranted "because of the deliberate conduct of the government in inducing and misleading these defendants to divest themselves of specific recall, and of such tangible evidence as might have existed and could have been preserved some five years ago." Curiously enough, Rasmussen cites no authority to support the proposition that a defendant's memory lapse constitutes actual prejudice. Nor does he specify what type of tangible evidence he will be precluded from presenting because of the Government's delay.
Furthermore, neither Jacobs nor Rasmussen has pointed to any witnesses who have died or are unavailable as a result of the delay. Nor have they otherwise demonstrated actual or substantial prejudice. Absent such a showing, the defendants' respective motions to dismiss the indictment based on the Government's pre-indictment delay must be dismissed.
For the reasons outlined, at this time, the Court denies both defendants' motions to dismiss the indictment.