Appeal from the United States District Court For the Central District of California. D.C. No. CV-90-06671-RMT. Robert M. Takasugi, District Judge, Presiding.
Before: James R. Browning, Dorothy W. Nelson, and Michael Daly Hawkins, Circuit Judges. Opinion by Judge D.w. Nelson.
D.W. NELSON, Circuit Judge:
Javier Hincapie Sanchez appeals the district court's denial of his motion under 28 U.S.C. § 2255 to vacate his guilty plea and sentence in his criminal conviction for conspiracy to distribute cocaine, 21 U.S.C. § 846, and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Hincapie Sanchez argues that (1) the government's actions in this case constituted outrageous government conduct; (2) the prosecution committed a Brady violation by failing to disclose that two men who visited Hincapie Sanchez in prison were government informants; (3) these government informants coerced Hincapie Sanchez to plead guilty; (4) the visit by the government informants outside the presence of Hincapie Sanchez's attorney violated his Sixth Amendment right to counsel; and (5) Hincapie Sanchez's defense attorney and his attorney for the § 2255 motion provided ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In February 1989, the FBI began an investigation of Hincapie Sanchez after two confidential government informants identified him as a drug dealer. Informant Loukas Christodoulou introduced Hincapie Sanchez to FBI agent Kathleen Carson, who was posing as a wealthy businessperson. After negotiations, Hincapie Sanchez agreed to sell 24 kilograms of cocaine to Carson. On March 10, 1989, after Hincapie Sanchez, Christodoulou, and another individual packed and transported the cocaine to a designated location, Carson and Los Angeles County Sheriff's Department (LASD) officials arrested Hincapie Sanchez.
On May 18, 1989, Hincapie Sanchez pleaded guilty to conspiracy to distribute cocaine and to possession with intent to distribute. During the plea colloquy, Hincapie Sanchez stated that he had not been subject to threats or promises of favors or leniency. On July 31, 1989, the court sentenced him to 235 months' imprisonment, to be followed by five years of supervised release.
On December 12, 1990, Hincapie Sanchez filed a motion under 28 U.S.C. § 2255 to vacate and set aside his guilty plea and the sentence. He argued that the government improperly failed to disclose that Willie and Oscar Murcia, who supplied some of the cocaine for the deal and later persuaded him to plead guilty, had been informants for the LASD. Hincapie Sanchez further argued that had he known that the Murcias were informants, he would have asserted defenses of entrapment and outrageous government conduct rather than plead guilty. He also alleged that his plea was not knowing and voluntary because he pleaded guilty on the understanding that the Murcias would arrange for his release and that his plea would prevent the indictment of his wife.
At an evidentiary hearing on the motion, Hincapie Sanchez testified that Willie Murcia had supplied some of the cocaine for the deal, and this testimony was corroborated by a recording of Willie Murcia. However, the courier who had brought the cocaine to Hincapie Sanchez, an informant named Tony Avila, testified that he had acted under instructions from a dealer named Carlos Enrique Orozco ("Cacique"), with the approval of Avila's government contact, LASD Deputy Sheriff Steve Nichols, who regularly monitored Avila's work for Cacique. Although Avila knew that Murcia was both a drug dealer who was acquainted with Cacique and an informant who worked with Nichols, he did not know that Murcia had supplied the drugs for this deal. The prosecuting attorneys, Agent Carson, and another agent provided statements that although they were aware that Murcia was an informant for the LASD, they had not known that Murcia had supplied the drugs or had induced Hincapie Sanchez to plead guilty.
In addition, several witnesses testified that the Murcias had talked of their ability to secure the release of prisoners through contacts in Washington, D.C., and that the Murcias had told Hincapie Sanchez that they could secure his release if he pleaded guilty. The Murcias also told him that pleading guilty would prevent the indictment of his wife and of the Murcias themselves.
Based on this evidence, the magistrate Judge recommended denial of the section 2255 motion on the grounds that (1) even though Willie Murcia had both supplied the drugs and persuaded Hincapie Sanchez to plead guilty, the prosecutors had no knowledge of this involvement, and (2) the plea resulted not from coercion, but from Hincapie Sanchez's expectation that the Murcias would secure his release from prison by illegal means. The district court adopted the magistrate Judge's findings of fact and Conclusions.
This court reviews a denial of a section 2255 motion de novo. Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). The district court's findings of fact are reviewed for clear error. Campbell v. Wood, 18 F.3d 662, 681 ...