891 F.2d 1265 (7th Cir. 1989), 89-1615, United States v. Miller

Docket Nº:89-1615.
Citation:891 F.2d 1265
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Curtis MILLER, Defendant-Appellant.
Case Date:December 18, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1265

891 F.2d 1265 (7th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Curtis MILLER, Defendant-Appellant.

No. 89-1615.

United States Court of Appeals, Seventh Circuit

December 18, 1989

Argued Sept. 18, 1989.

K. Tate Chambers, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Michael E. Brandt (argued), Peoria, Ill., for defendant-appellant.

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Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Curtis Miller was charged and convicted in a bench trial on one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. section 841(a)(1) and two counts of distributing cocaine in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2. He now challenges his conviction and sentence on three grounds. First, Miller argues that the government engaged in "outrageous conduct" by employing a drug addict with whom Miller was romantically involved to induce him to sell drugs. Second, Miller asserts that the district judge relied on insufficient evidence to support a Federal Sentencing Guidelines base offense level of 18. Finally, Miller urges us to find that the district court erred in refusing to grant him a two-level reduction in his base offense level for minor participation in the drug transactions. We affirm the judgment of the district court on each of these claims.

I.

Miller was arrested in August 1988 in Knox County, Illinois, after making two sales of cocaine to Agent Randy Squire of the Multi-County Narcotic Enforcement Group ("MEG"). The first sale occurred on March 18, 1988, when Squire purchased 3.5 grams of cocaine from Miller for $275. On April 4, 1988, Miller sold Squire another 6.9 grams for $500. While they were discussing the arrangements for the March 18 deal, Miller told Agent Squire that his source required the money for the drugs up front; Miller said everyone was doing it that way and showed Squire his wallet full of cash. Agent Squire testified that during the April 4 transaction, he asked Miller about buying a full ounce (approximately 28 grams) of cocaine; Miller replied that he could procure up to an ounce, with three days notice, because his Florida source "saved" him an ounce every time he visited town. At their first meeting prior to the March 18 buy, Miller had informed Agent Squire that his source flew into Galesburg about every three weeks. 1 Two to three weeks after the April 4 transaction, Squire and Miller met again to discuss the ounce purchase. That deal was never consummated because, according to Agent Squire, MEG was unwilling to provide the $1400 up-front money that Miller requested, given the fact that the cocaine would not be delivered until ten days later. Squire had no further communication with Miller.

Squire was introduced to Miller by Linda Zefo (a.k.a. "Lin Ford"), who was also present at the March 18 and April 4 transactions. Zefo first met Miller on New Year's Eve of 1987 and became intimate with him soon after. They had dated for one and a half to two weeks in January 1988 before their relationship ended. In February 1988, Zefo became a confidential informant for MEG. MEG paid her living expenses while it employed her, and she also received $60 for each drug transaction that she arranged for MEG. At trial, Zefo admitted to being a cocaine addict both before and during her employment with MEG. Agent Squire and Special Agent Dan Bates knew of Zefo's drug habit, discouraged her from using cocaine, placed her in a drug treatment program and ultimately discontinued her employment when she failed to abandon her drug habit. Both agents testified that they had never personally witnessed her using drugs. On the two occasions when Agent Squire purchased cocaine from Miller, Zefo never had possession of those drugs outside of Squire's presence, and each time she immediately handed the cocaine to Squire. In addition to testifying about the two MEG buys, Zefo also told the court that Miller supplied her with small amounts of cocaine (quarter, half and single grams) and that he would sometimes visit her apartment late at night, saying he had been selling similar amounts in local bars. While Miller occasionally spent the night at Zefo's apartment during the MEG investigation, both

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he and she testified that they did not resume a sexual relationship.

The trial testimony also established a link between Miller's roommate, Tim Palmer, and cocaine. Linda Zefo stated that she met Miller through Palmer, with whom she had been friends for fifteen years and from whom she had frequently procured cocaine. When she began working for MEG, she telephoned Palmer to try to set up a buy, but Palmer said he was no longer dealing and she should speak to Miller. She did speak to Miller several times, finally arranging the March 18 transaction. Palmer, who testified under an oral grant of immunity at Miller's sentencing hearing, stated that in the two years that the men had lived together he had never seen Miller with quantities larger than quarter, half and single gram amounts.

Having heard all the evidence, the district judge found Miller guilty on all three counts. Miller filed a post-trial motion for a new trial, claiming that the government's use of Zefo, Miller's former girlfriend and a known drug abuser, as an informant against him constituted "outrageous conduct." The district court denied the motion and imposed concurrent prison terms of 32 months for each of the counts. Miller appeals from these rulings.

II.

Miller urges us to conclude that the government's employment of Linda Zefo as a paid informant constituted "outrageous conduct" in violation of the due process clause. The Supreme Court introduced the concept of outrageous government conduct and distinguished it from the defense of entrapment in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In that case, the Court found neither entrapment nor outrageous governmental conduct, but it left open the possibility that "we 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, 93 S.Ct. at 1643.

In order to preclude prosecution, the government's conduct must "violat[e] that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Id. at 432, 93 S.Ct. at 1643 (citing Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303-04, 4 L.Ed.2d 268 (1960)). Following Russell, this circuit has declared that "government conduct must be truly outrageous before due process will prevent conviction of the defendant." United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). 2 While several criminal appellants have charged the government with outrageous conduct in their cases, this court has yet to overturn a conviction on that basis. See United States v. Valona, 834 F.2d 1334 (7th Cir.1987); United States v. Shoffner, 826 F.2d 619 (7th Cir.), cert. denied sub nom. Stange v. United States, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987); United States v. Swiatek, 819 F.2d 721 (7th Cir.), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Bruun, 809 F.2d 397 (7th Cir.1987); United States v. Podolsky, 798 F.2d 177 (7th Cir.1986); United States v. Belzer, 743 F.2d 1213 (7th Cir.1984), cert. denied sub nom. Clements v. United States, 469 U.S. 1110, 105 S.Ct. 788, 83 L.Ed.2d 781 (1985); United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). Like those before him, Miller has failed to demonstrate that the government's conduct leading

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to his arrest and indictment was sufficiently outrageous to preclude his prosecution and conviction.

Miller attempts to convince us otherwise by pointing to MEG's contingent fee arrangement with Linda Zefo, her continued use of cocaine while in MEG's employ and her sexual relationship with Miller. Neither separately nor combined, however, do these facts amount here to "truly outrageous" government conduct. This court has concluded that contingent fee payments to government informants are not per se outrageous; rather, the jury may consider such arrangements as evidence relating to the informant's credibility. Valona, 834 F.2d at 1344 (government recruited and transported informant into state and agreed to pay him 10% of value of any contraband, fruits or instrumentalities of criminal activity recovered with his assistance).

Nor do we consider outrageous per se the government's employment of former drug users and dealers as informants in undercover narcotics investigations. The use of such persons, while perhaps unfortunate and certainly unappealing, does contribute to undercover agents' ability to penetrate criminal associations and root out crime at its source. See Kaminski, 703 F.2d at 1007, 1010 (use of "unsavory" characters in undercover police investigations is "an unattractive business, but that is the nature of the beast...."). MEG did not act improperly in hiring Linda Zefo as an informant. There is no evidence whatsoever that MEG supplied Zefo with cocaine or knowingly supported her continued use of the drug. To the contrary, Agents Squire and Bates terminated Zefo's employment when she refused to remain in the drug rehabilitation program in which they had placed her.

Neither do we find it "truly outrageous" that Linda Zefo had been sexually intimate with Miller. Both Zefo and Miller testified that their sexual relationship had ended some time in January--before Zefo began her employment as an informant for MEG. They never resumed their former intimacy, and MEG apparently did not even know about their prior...

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