U.S.A. v. Estrada, 00-2647

• Citation: 256 F.3d 466
• Decision Date: 22 June 2001
• Docket Number: No. 00-2647,00-2647
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Sergio Estrada, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 466

256 F.3d 466 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Sergio Estrada, Defendant-Appellant.

No. 00-2647

In the United States Court of Appeals For the Seventh Circuit

Argued March 30, 2001

Decided June 22, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 46--Suzanne B. Conlon, Judge.

Before Flaum, Chief Judge, and Posner and Evans, Circuit Judges.

Flaum, Chief Judge.

Sergio Estrada was convicted of knowingly and intentionally attempting to possess with the intent to distribute mixtures containing cocaine. Estrada now appeals his conviction, arguing that: (1) the government engaged in outrageous conduct through its arrangement with informant Jose Antonio Varela; (2) the district court erred when it allowed the government to introduce into evidence translated transcripts of Spanish conversations without ever playing the tapes of those conversations; and (3) he was the victim of sentencing entrapment. For the reasons stated herein, we affirm.

Background

Sergio Estrada's current legal problems arise out of his coming into contact with Jose Antonio Varela ("Varela"). Unbeknownst to Estrada, Varela worked as a confidential informant for the Drug Enforcement Agency ("DEA"). On January 13, 2000, a woman named Deysi who worked at the Sin Frontera bar, introduced Estrada to Varela. Estrada discussed with Varela the possibility of purchasing cocaine from him. Varela said a kilogram of cocaine would cost Estrada $17,000, but if he purchased more than five kilograms, then the price per kilogram would be reduced to $16,000. Although Estrada desired to buy a kilogram that night, Varela would not accommodate this request. When the two ended their conversation, they exchanged phone numbers. On January 14, Varela spoke with Estrada and told him that he really needed the cocaine right away. Varela, however, was going to be in California and could not supply Estrada with cocaine until he returned. Once again, on January 17, Estrada and Varela spoke and they arranged to meet the next day. Estrada on January 18, accompanied by his brother Otoniel Estrada, who was going to supply the money for the cocaine, met Varela in the parking lot of the Hillside Holiday Inn to inspect the cocaine. Also present was Richard Alvarado, a police officer working undercover and posing as Varela's partner. Otoniel Estrada inspected the cocaine and determined that it was fine. Despite Estrada's desire to go ahead with the deal that day, it was decided that the transaction would be completed the next day. Varela spoke with Estrada on the phone after the meeting at the Hillside Holiday Inn and it was agreed that Estrada would purchase five kilograms of cocaine and take two kilograms on credit. As Estrada arrived in the parking lot of the Hillside Holiday Inn on January 19, undercover officer Alvarado met him and entered Estrada's car. Estrada showed Alvarado a large amount of cash that he was carrying in a fanny pack strapped to his waist, which contained approximately $35,000. After a brief exchange, Alvarado gave a signal and DEA agents arrested Estrada. After the arrest of Estrada, agents recovered an additional $25,000 from a Jeep parked in back of Estrada's car.

Estrada was charged with one count of knowingly and intentionally attempting to possess with the intent to distribute approximately 7 kilograms of mixtures containing cocaine in violation of 21 U.S.C. sec. 846. On May 3, Estrada was convicted by a jury and the district court sentenced him to serve 121 months of imprisonment.

Discussion

I. Outrageous Government Conduct

Estrada contends that the government's employment of Varela as a contingent fee informant constituted outrageous conduct in violation of the Due Process Clause. The origins of the outrageous conduct doctrine can be traced to United States v. Russell, 411 U.S. 423 (1973), in which the Supreme Court stated that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . ." Id. at 431-32; see also United States v. Miller, 891 F.2d 1265, 1267 (7th Cir. 1989). According to Estrada, the DEA acted in an outrageous manner through the particular type of confidential informant arrangement it had with Varela. Between 1987 and 1991 Varela sold approximately three to four hundred kilograms of cocaine. To avoid a possible life sentence after his arrest in 1991, Varela agreed to become a confidential informant. The government has paid Varela more than $400,000 for his services. He has purchased two homes with this money, one of which is in Honduras.

Estrada claims that several aspects of Varela's involvement in procuring his arrest raise questions about the government's behavior. To begin with, Varela testified that he receives 25 percent of whatever money the DEA seizes during a sting. Estrada argues that such a compensation arrangement is contrary to the agency's alleged goal of reducing the supply of narcotics. Estrada contends that Varela had total discretion to select his target, and as a consequence, he selects a target based upon the amount of money that he believes can be seized from that person. Accordingly, Estrada advances that when Varela decides to select a particular target, he does not take into account the more traditional law enforcement factors, like a target's prior criminal history. Estrada asserts this is evidenced by the fact he had no history of drug trafficking or other criminal activity. He believes that Varela targeted him because he knew that Estrada worked as a cook at the restaurant that his brother owned and so Varela determined that Estrada's brother would be able to raise the cash necessary for the deal, thus ensuring that he would receive 25 percent of the cash seized. Estrada suggests that not only was Varela allowed to select his targets, but he also was authorized to assume the lead role of seller in the sting operation. According to Estrada, typically informants are used to introduce the target to an undercover agent who then assumes control of the transaction and ensures that the deal furthers legitimate law enforcement concerns. In this particular case, Estrada argues that Varela was given complete discretion to negotiate the deal to serve his own interests, which was to induce him to agree to a purchase that involved the greatest amount of cash so that he maximized his commission. Estrada warns that one must remember that Varela was given such extensive discretion even after he failed a polygraph examination just three months before he targeted Estrada. Further, Varela's discretion was not limited to selection of a target. Estrada claims that Varela had complete control over what conversations he chose to tape record when dealing with him and so he was able to limit the amount of exculpatory evidence available after the sting operation; thus, ensuring that the government would be able to successfully prosecute Estrada and that Varela would receive his commission.

Estrada finally notes that Varela's involvement with his case did not end when he was arrested. During the trial, Estrada argues that Varela was the star prosecution witness despite the fact Varela had a history of deception and incentive to perjure himself to assure a conviction and his own commission. In support of this position, Estrada points out that Judge Wiggins in United States v. Cuellar, 96 F.3d 1179, 1189 (9th Cir. 1996) (concurring) said that certain factors, not present in that case, should be given consideration when attempting to assess whether the government has engaged in outrageous conduct in violation of an individual's due process rights. Estrada asserts that those factors are present in this case, including that: (1) Varela was "instrumental" in building the case against him; and (2) Varela was given discretion to develop the case against him. Id. Estrada thus argues that when one considers Varela's arrangement with the DEA in its totality, it becomes clear that the government acted in an outrageous manner.

The government contends that Estrada's claim of outrageous government conduct cannot be sustained in light of this Circuit's refusal to recognize the existence of such a doctrine. In United States v. Boyd, 55 F.3d 239 (7th Cir. 1995), the doctrine was specifically disavowed: "Today we let the other shoe drop, and hold that the doctrine [of out rageous governmental misconduct] does not exist in this circuit. The gravity of the prosecutors' misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants' rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted." Id. at 241. The government claims that Estrada's outrageous conduct argument has been foreclosed by this Circuit's case law.

During oral argument, we opined that in some situations the government uses either money or promises of lenience to induce testimony, which is commonplace and permitted. Varela's arrangement does not seem to quite fit within the aforementioned scenario. Varela was paid prior to testifying at Estrada's trial $1000 and at the time of the trial he was still expecting to receive 25 percent of the cash seized from the sting operation. This type of arrangement we suggested at argument can appear to make the witness's compensation uniquely dependent on the outcome of the case. Apparently, if Varela testified truthfully, but Estrada was not convicted, he would not receive 25 percent of the money seized, which amounted to $15,000 or $20,000.¹ While Estrada has framed the issue as one of outrageous government conduct, what appears to be his true concern is the...