U.S. v. Millet
| Decision Date | 14 December 2007 |
| Docket Number | No. 06-2893.,No. 06-2678.,06-2678.,06-2893. |
| Citation | 510 F.3d 668 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Christopher MILLET, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Benjamin F. Langner (argued), Office Of The United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Sarah O'Rourke Schrup (argued), Matthew Ford, David Rontal, Northwestern University School of Law, Chicago, IL, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.
In August 2004, Harvey Gooden, a police informant, invited an attorney, Christopher Millet, to participate in a robbery of a drug dealer. Millet, who claimed to be well versed in the art of robbing drug dealers, readily accepted Gooden's offer. After the robbery, Gooden asked Millet for a gun, purportedly to protect himself from the dealer they had robbed, and after some prodding, Millet obliged. For his actions, Millet was charged with conspiracy to distribute cocaine, attempting to distribute a controlled substance, and knowingly disposing of a firearm to a known felon. The jury returned a conviction on the drug distribution counts, finding that the offenses involved over 500 grams of cocaine; however, Millet was acquitted on the firearm charge.
Millet appeals the district court's refusal to provide an entrapment instruction on the drug distribution counts, contending that there was insufficient evidence to show that he intended to join a conspiracy to steal drugs (in addition to cash) or that he conspired with anyone other than Gooden. Millet has failed, however, to demonstrate a lack of predisposition to commit the charged crimes, so he was not entitled to an entrapment instruction, and the evidence was sufficient to show that Millet and his coconspirators expected to recover drugs during the robbery and to give those drugs to a known dealer. Millet also contests the district court's assignment of a four-level enhancement for his role in the offense, the court's denial of safety-valve relief, and the adequacy of the court's explanation for its within-Guidelines sentence. The record is clear that Millet was a leader of a conspiracy having five or more participants so he was not eligible for safety-valve relief, and the role enhancement was proper. The court also gave an adequate statement of reasons for its within-Guidelines sentence.
Finally, the government cross-appeals, claiming the court erred in failing to sentence Millet based on the total quantity of fake drugs stolen from the fictitious dealer. This argument has merit because the district court did not make an independent factual determination as to the amount of drugs Millet conspired to steal. Thus, we affirm in part and reverse in part the judgment of the district court, and remand for re-sentencing.
After more than a decade of sobriety during which he obtained a law degree, Christopher Millet relapsed in 2003 and again became addicted to heroin. That year, Millet met and began purchasing heroin and cocaine from Harvey Gooden. In August 2003, Gooden was arrested by Chicago Police. After that arrest led to federal firearms and drug distribution charges, Gooden agreed to cooperate with investigations by the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the Federal Bureau of Investigation ("FBI") to obtain a reduced sentence. In his role as informant, Gooden told federal authorities of Millet's illegal activities.
On June 29, 2004, Gooden told FBI Agent Patrick Smith that Millet engaged in a scheme to rob drug dealers of cash. Gooden claimed that Millet had contacts capable of identifying the bagmen of dealers, knew police officers who could perpetrate the robberies under color of law, and invited Gooden to join the scheme. On one occasion, Millet asked Gooden's help in robbing a participant in an earlier robbery of a drug dealer. Millet offered Gooden $5000 if he could locate a security specialist to deactivate the target's home alarm system. In his account of Millet's activities, Gooden never accused Millet of selling drugs or robbing dealers of drugs.
When the FBI decided to launch an operation centered on Millet, Gooden agreed to be the inside man. On August 3, 2004, Gooden, while wearing an audio recording device, told Millet that a Mexican drug dealer would be coming to Chicago to sell twenty kilograms of cocaine and two hundred pounds of marijuana. Gooden said he intended to buy two kilograms of cocaine, which he called "birds," for $13,000 a piece. Gooden remarked that a kilogram of cocaine would sell for $18,000 to $20,000 in Chicago. Millet agreed, "Right, 20 at least." Gooden again mentioned the amount of drugs the dealer would have and said "I wanna take it." He then invited Millet to participate, saying "we can go in up there. . .," but vowed to "sting `em regardless," meaning with or without Millet's help. At that point, Millet interjected the idea of using police in the rip off, affirming that the "Harvey Police [could] do it." Several minutes later, Gooden brought the heist up again, emphasizing that he needed a gun, not Millet's participation in the robbery.
Millet proceeded to explain how he wished to carry out the robbery. He said, he wanted to "go in proper," meaning with police, and he agreed to contact his "people" before his next conversation with Gooden. So, by the end of that first conversation, Millet had unequivocally agreed to participate in the robbery but not to provide Gooden a gun.
The next day, Gooden informed Millet that the dealer had arrived in Chicago and would be in town for four days. Millet said he had just gotten off the phone with his contact and that his folks were on "standby." Gooden said they would do the robbery the next day unless Millet needed more time. Millet said his guys were ready, "on standby," but then suggested that it would be better to wait.
. . .
Although Gooden agreed that it would be best to wait for the dealer to convert his drugs to cash, Gooden asked Millet about the obvious possibility that the dealer might still have drugs at the time of the robbery.
. . .
With that, Millet agreed to include drugs in the take, and moments later, he recognized that the drugs would translate to cash.
. . .
On Thursday, August 5, Gooden called Millet to say that the second half of the dealer's shipment would arrive the next day, and that the dealer would not be leaving Chicago until the following Wednesday. Millet commented that the dealer would be a "cash cow." Gooden agreed, and he added that the dealer probably would not have "many" leftover kilograms of cocaine at the time of the robbery. Gooden said, "remember I want, I want, the uh, the uh, the girl," meaning cocaine. The callers were disconnected before Millet could respond. When Gooden and Millet spoke later that day at Millet's law office, they discussed the benefits of partnering with police in a robbery of dealers. Millet said, "It's always better to go with this lick man." He said, "I done did this both ways man," with and without police, "and [was] willing to do it both ways . . . ." But he and Gooden agreed, working with police minimized resistance. Millet then called his police contact, in Gooden's presence, to confirm that the robbery would take place Sunday or Monday because they were waiting on the second shipment. After the call, Millet told Gooden there would be a total of four conspirators (for a four-way split) and that Millet and the other two conspirators would complete the robbery.
The next recordings occurred on Monday, August 9, 2004, the day of the robbery. That morning, the government parked a gray Cadillac STS in the parking lot of the Chicago Park Hotel in Harvey, Illinois. Before parking the car, federal agents placed a duffel bag containing $20,000 in cash and two fake kilograms of cocaine in the trunk of the car. Gooden made four calls to Millet between 10:41 a.m. and...
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