United States v. Sabulon Cardenas Cuellar

96 F.3d 1179 65 USLW 2213 , 96 Cal. Daily Op. Serv. 6946 , 96 Daily Journal D.A.R. 11 ,358 UNITED STATES of America, Plaintiff-Appellee, v. Sabulon Cardenas CUELLAR, Defendant-Appellant. No. 95-50118. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 7, 1996. Decided Sept. 17, 1996. Joseph F. Walsh, Los Angeles, California, for defendant-appellant. Duane R. Lyons, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California, James M. Ideman, District Judge, Presiding. D.C. No. CR-94-00588-JMI. Before: POOLE, WIGGINS, and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 This appeal requires us to decide whether a contract to pay an undercover informant a percentage of funds laundered through organizations he penetrated is outrageous government conduct. 2 Sabulon Cardenas Cuellar was convicted on charges of distribution of 200 kilograms of cocaine and possession of one kilogram of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). He complains of a number of errors, but principally contends that his due process rights were…

concurring:

Civil and criminal forfeitures of assets have become one of the most prominent methods of enforcing drug-related and racketeering laws. The range of assets forfeited encompasses not only contraband and articles put to unlawful use, but also proceeds traceable to unlawful activity or intended for unlawful use, which can include homes, bank accounts, boats, planes, and cars. The billions of dollars in forfeitures in turn finance *1184 the law enforcement efforts to investigate and prosecute more wrongdoers. The drastic increase in civil and criminal forfeitures, however, has required consideration of numerous constitutional problems with such a sweeping approach-what to do about innocent owners of property, whether forfeitures are subject to the Excessive Fines Clause, and most recently, whether forfeitures constitute punishment for the purpose of the Double Jeopardy Clause. This case presents us with yet another problem created by the federal government’s current approach to enforcing drug-related laws by focusing on the forfeiture of assets or funds somehow connected to the violation of such laws.

I write separately to emphasize the dangers of permitting a government…

This appeal requires us to decide whether a contract to pay an undercover informant a percentage of funds laundered through organizations he penetrated is outrageous government conduct.

Sabulon Cardenas Cuellar was convicted on charges of distribution of 200 kilograms of cocaine and possession of one kilogram of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). He complains of a number of errors, but principally contends that his due process rights were violated based upon the government’s paying an informant a percentage of money seized in undercover operations, and making additional payments depend on the outcome of trial. We hold that a contingent fee arrangement is not by itself outrageous government conduct, and that in the circumstances of this ease the district court did not err in finding that additional payments were not dependent on the outcome of Cuellar’s trial. As there was no other reversible error, and we have jurisdiction over this timely appeal, 28 U.S.C. § 1291 , we affirm.

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“Operation Costa Del Oro” was a complex money-laundering investigation by the United States Customs Service (USCS) and a number of municipal law enforcement…