In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2647
United States of America,
Plaintiff-Appellee,
v.
Sergio Estrada,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 46--Suzanne B. Conlon, Judge.
Argued March 30, 2001--Decided June 22, 2001
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
othercriminal 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
admission of Varela’s testimony during
his trial.
Varela during the trial stated that he
was involved in about 60 to 70
investigations and that he testified in
about 10 to 13 trials. He claims to not
have figured out how the DEA pays him,
yet he acknowledged that since 1996 he
has had an agreement with the DEA
providing that they would pay him 25
percent of the cash seized during an
operation. Although Varela said he
expected 25 percent of the money seized
from the Estrada sting, he contended that
he was not sure how much money was
confiscated during the investigation.
Further, Varela was unsure about when he
would be paid the 25 percent, except that
he believed it took up to six months and
perhaps even longer. When questioned
about whether he had to testify to get
paid, his response was "[w]ell, because I
never known it like that, that they pay
me to testify. I just know they only pay
me 25 percent." Just prior to making this
remark, Varela in response to a question
asking whether he must testify and follow
through with a case, said "Well,
whatever--whatever I have to do." It is
apparent from Varela’s testimony that he
was somewhat unclear about the conditions
of his arrangement with the DEA. He was,
however, definitive about his desire to
receive 25 percent of the cash seized
from the Estrada investigation. It is
understandable that this was of concern
to Varela, as it represented a
significant, depending on the case,
source of income for him.
Varela testified that he had received
only $1000 before Estrada’s trial and had
yet to receive his 25 percent commission.
During the trial, the district court
instructed the jury in the following
manner with regard to Varela’s testimony,
and in doing so framed the issue as one
of credibility: "You have heard testimony
from Jose Antonio Varela who received
benefits from the government in
connection with this case, namely
received money and the promise of
additional commission payments. You may
give his testimony such weight as you
feel it deserves, keeping in mind that it
must be considered with caution and great
care." We have stated that "[t]reating
fee arrangements with witness/informants
as a credibility factor for the jury
rather than an outrageous conduct issue
appears to be a more reasoned approach."
United States v. Valona, 834 F.2d 1334,
1344 (7th Cir. 1987); see also United
States v. Febus, 218 F.3d 784, 796 (7th
Cir. 2000) ("And even in cases where the
government pays informants for their
testimony, we have held that such
arrangements are not per se outrageous;
rather the jury may consider [them] as
evidence relating to the informant’s
credibility.") (internal citations and
quotation marks omitted). It appears then
that our general position with regard to
admission of testimony of an informant
who has a contingent fee arrangement with
government is to allow the jury to
consider such an arrangement in its
evaluation of a witness’s credibility.
While this may be our ususal approach,
this case causes us to inquire whether
Varela’s testimony should simply be an
issue of credibility for the jury to
determine. For instance, when an
informant is being paid living expenses,
then the informant’s testimony raises
traditional credibility issues. Varela
was not merely being paid a stipend that
covered his living expenses.
Instead, the instruction underscores
what promotes unease about the
arrangement in this case, which is that
Varela’s fee arrangement was dependent,
in part, on the conviction of Estrada.
The First Circuit has remarked that
"[c]ourts have generally allowed paid
informants to testify as long as the
agreements are not contingent upon the
conviction of particular persons." United
States v. Palow, 777 F.2d 52, 54 (1st
Cir. 1985); United States v. Cresta, 825
F.2d 538, 547 (1st Cir. 1987) (same). The
arrangement between Varela and the DEA
indicates that the conviction of Estrada
and Varela’s payment were interdependent.
To begin with, not only did Varela
testify, he was the main witness at
trial. He targeted Estrada, set up and
negotiated the deal, and tape recorded
certain conversations between himself and
Estrada. Varela was to receive the bulk
of his payment ($15,000 or $20,000) after
he testified; leading us to conclude that
in order for him to receive his 25
percent commission it was necessary that
his testimony result in Estrada’s
conviction. See Cresta, 825 F.2d at 547
("Montaner received the bulk of his
compensation prior to trial; thus payment
of this sum was not contingent upon the
conviction of any of the defendants.");
Valona, 834 F.2d at 1344 ("In addition,
Rapkin received his fee well before trial
and it was not in any way contingent upon
the trial outcome."); United States v.
Innamorati, 996 F.2d 456, 482 (1st Cir.
1993) ("Finally, the $250,000 payment to
Scott was completed several days prior to
trial, and the payment was thus not
directly dependent upon the result of
Scott’s testimony in court."). As
discussed earlier, Varela’s arrangement
with the DEA was ill-defined. Such lack
of clarity and detail can only further be
construed to suggest that Varela’s
contingent fee was dependent on the
outcome of the case. See United States v.
Dailey, 759 F.2d 192, 200-201 (1st Cir.
1985) (discussing the benefits of a clear
agreement between the government and a
contingent witness in the context of plea
agreements). Finally, it is important to
remember that Varela had incentive to
ensure that his testimony resulted in the
conviction of Estrada, both from a
monetary standpoint, and because he
presumably wanted to show that he still
could remain an important asset to the
DEA in light of his credibility being
called into question before Estrada’s
case. Three months prior to the beginning
of the Estrada investigation, Varela had
failed a lie detector test, so his
veracity was in doubt, and therefore
presumably so was his position with the
DEA. As Varela himself admitted, he was
not under contract with the DEA, so the
DEA could at any point determine that it
no longer required his assistance.
Further, Varela’s sole source of income
was from being an informant, and he acted
in this capacity primarily for the DEA.
At base, the government’s arrangement
with Varela can be characterized as a
problematic means of pursuing a drug
case. During all of the critical
junctures of the case, from the initial
investigatory stage, up to and through
the period in which Varela testified, he
was motivated to convict Estrada so that
he would receive the much sought after
and elusive 25 percent commission. Such
an incentive structure does little to
enhance overall confidence in the
criminal justice system. Notwithstanding,
as will be seen in Section III, there is
such overwhelming evidence of Estrada’s
drug involvement that we conclude his
sentence does not carry with it the
specter of a miscarriage of justice.
II. Admission of Translated
Tape-Recorded Conversations
The government recorded several
conversations between Estrada, his
brother, and Varela. All of these
conversations took place in Spanish.
Prior to trial, the government prepared
transcripts of English translations of
these tapes. However, at trial, the
government did not play any of the tapes.
Estrada argues that the district court
abused its discretion when it allowed the
introduction of the English translations
as substantive evidence.
Estrada concedes that the jury was
properly instructed that "[w]hether a
transcript is an accurate translation, in
whole or in part, is for you to decide."
Estrada nonetheless advances that this
instruction was rendered meaningless
because the tapes were not played. During
the trial, Estrada believes the crucial
issue was his intent to purchase cocaine
from Varela. Accordingly, it is Estrada’s
contention that the tapes became the most
critical item of evidence to show his
lack of intent. The jury heard only
Varela’s version of what was on the tapes
because Estrada did not testify. Estrada
claims that if the government had been
required to play the tapes, then the jury
would have had the opportunity to
evaluate whether Varela’s version of what
transpired was credible. According to
Estrada, allowing the tapes to be played
would have given the jurors an
opportunity to make judgments about the
transcripts. From Estrada’s perspective,
even jurors with no knowledge of the
Spanish language would have been able to
judge the speaker’s particular tone and
inflection, such as whether the speaker
was joking or serious and sincere or
deceitful. Estrada therefore asserts that
the tapes should have been played for the
jury.
The district court’s refusal to allow
the Spanish tapes to be played was not an
abuse of discretion. Although Estrada
argued that the "transcript is merely an
impression or an aid to the tape itself,"
the district court responded, "It’s more
than an aid in this case because it’s a
translation from another language." To
which Estrada countered by remarking that
"I know that, but the tape has to be in
evidence for it to be an aid to the
translation, because, clearly, the jury
has to have the right to go back to the
original evidence." The district court
dismissed this point on the practical
grounds that "[w]ell, they can’t. It’s in
Spanish." From this exchange, it becomes
apparent that the district court saw no
value in allowing a presumably English-
speaking jury to hear tapes that were
recorded in Spanish. It is difficult to
second-guess such a decision.
Understandably, the district court may
have doubted whether a jury not
proficient in Spanish would be able to
properly comprehend from the tapes an
individual’s tone or inflection. See
United States v. Grajales-Montoya, 117
F.3d 356, 367 (8th Cir. 1997) ("[T]he
trial court denied the request [to admit
certain tape-recorded conversations in
Spanish], citing the unlikelihood that a
listener who was not proficient in
Spanish (such as a jury member) would be
able to discern relevant inflections and
idiosyncrasies (the trial court’s word)
without knowing the language being
spoken. Mr. Montoya has suggested no
reliable means of enabling people who do
not speak Spanish to interpret
inflections and tone, and we cannot think
of any, either."). We find therefore that
the district court did not abuse its
discretion when it did not admit and play
the Spanish tapes before the jury.
III. Sentencing Entrapment
We now reach Estrada’s last challenge.
Estrada contends that the district court
improperly determined that he was
responsible for five to fifteen kilograms
of cocaine because the court did not make
any findings that Estrada was predisposed
to buy said quantity. The district court
made the following remarks on the matter:
"Well, I find that based on the trial
testimony, that the use of a base offense
level of a 32 is appropriate. That base
offense level incorporates an amount from
5 kilograms to 15 kilograms. So I think
it’s sustained by a preponderance of the
evidence. So that objection is
overruled." The district court apparently
determined that Estrada’s behavior caused
him to fall within sec. 2D1.1 (c)(4) of
the Sentencing Guidelines, which provides
for a base level offense of 32 for "[a]t
least 5KG but less than 15 KG of
Cocaine." The district court’s decision
regarding the quantity of drugs that
Estrada is responsible for is a finding
of fact that we review for clear error.
United States v. Pagan, 196 F.3d 884, 891
(7th Cir. 1999). One can prove clear
error if the "sentencing calculation
rests on an inadequate evidentiary
basis." Id. The record before the court
must be sufficient in nature at
sentencing to support a finding by a
preponderance of the evidence. Id.
Therefore, "if the district court’s
conclusion rests on reliable evidence in
the record, we will not second-guess the
way that the court weighed the evidence,
nor will we upset its credibility
determinations." Id. We will overturn a
factual determination if we are left
"with the definite and firm conviction
that a mistake has been committed."
United States v. Garcia, 69 F.3d 810, 819
(7th Cir. 1995) (internal citations and
quotation marks omitted).
Estrada maintains that the record shows
that he was predisposed to purchase a
much smaller quantity of cocaine and that
Varela used bargain basement pricing and
generous credit terms to induce him to
agree to accept delivery of a larger
quantity of cocaine. Consequently,
Estrada argues that he was the victim of
sentencing entrapment "which occurs when
the government causes a defendant
initially predisposed to commit a lesser
crime to commit a more serious offense."
United States v. Garcia, 79 F.3d 74, 75
(7th Cir. 1996). According to Estrada,
the Sentencing Guidelines recognizes
sentencing entrapment as a possible basis
for a downward departure. See United
States v. Searcy, 233 F.3d 1096, 1099
(8th Cir. 2000). One Circuit has remarked
that "Application Notes 12 and 15,
require the district court to determine
whether sentencing entrapment has
occurred. See U.S.S.G. sec. 2D1.1,
comment. (nn.12, 15)."/2 Id. Estrada
would like us to adopt the aforementioned
position. Further, Estrada points out
that we have stated that even though
"Note [12] does not refer explicitly to
reverse-buy situations, we have
recognized that it theoretically has
applicability to defendants caught in
such a sting." United States v. Cotts, 14
F.3d 300, 307 (7th Cir. 1994). Estrada
urges that it is important when
addressing a sentencing entrapment issue
to focus on the defendant’s
predisposition to commit the crime. See
Searcy, 233 F.3d at 1099.
Estrada holds steadfast to the notion
that he was not predisposed to engage in
a five kilogram cocaine transaction.
Estrada stresses that he has no prior
convictions or arrests and worked as a
cook at his brother’s restaurant.
Accordingly, Estrada believes that Varela
targeted him because his brother owned a
restaurant and had the ability to raise
the cash necessary for the cocaine
transaction. In essence, Estrada is
contending that his background belies the
suggestion that he was predisposed to
deal in cocaine at all, let alone five
kilograms.
Estrada argues that the record shows
that he had neither the intent nor the
resources to engage in a five kilogram
cocaine transaction. According to
Estrada, Varela admitted that he and his
brother initially only wanted to buy one
kilogram of cocaine, but Varela refused
to sell them such a small quantity.
Further, Estrada contends that the
transcripts of the tape-recorded
conversations reveal that he and his
brother asked Varela to arrange a smaller
deal for one or two kilograms of cocaine.
Varela’s apparent response was that he
did not want to waste his time arranging
a deal for one or two kilograms.
According to Estrada, his brother, who
was going to supply the money for the
deal, asked Varela to sell a smaller
quantity of cocaine to them, and Varela
said, "with two I can’t," and proceeded
to explain to Estrada’s brother that the
price would rise from $16,000 per
kilogram to $18,000 or $19,000 per
kilogram if he bought only one or two
kilograms of cocaine. All of these
exchanges, Estrada argues, demonstrate
that he wanted to purchase only one or
two kilograms from Varela; nevertheless,
he decided to purchase more because
Varela resisted going through with a deal
that was of a smaller magnitude.
Estrada believes that DEA Agent Stanley
M. Grobe’s testimony regarding drug
trafficking bolsters his position. Grobe
testified that the wholesale price of
cocaine in Chicago around January of 2000
was about $18,000 per kilogram and that
$16,000 would be a "rock bottom" price.
Further, Estrada maintains that Grobe
testified that a first time buyer would
pay full price and would not receive any
cocaine on credit. Therefore, Estrada
argues that Varela agreed to sell him
five kilograms at the below wholesale
price of $16,000 per kilogram and to give
him two extra kilograms on credit in
hopes of inducing him to accept a larger
quantity of cocaine.
Finally, Estrada claims that it is clear
that he lacked the predisposition to
engage in a five kilogram transaction
because he had only $35,000 with him at
the time of his arrest. Accordingly,
Estrada claims that this suggests that he
hoped that at the time of delivery, he
would be able to persuade Varela to agree
to a smaller deal for one or two
kilograms. In addition, even if one
considers the cash ($25,000) possessed by
Estrada’s brother in a separate vehicle,
Estrada would have had only enough cash
($60,000 in total) to buy 3.75 kilograms
at the $16,000 price and perhaps even
less if Varela had decided to raise the
price because the deal was going to be
for a smaller amount. Estrada also points
out that Agent Alvarado said that if the
Estrada-Varela arrangement had been a
real cocaine deal, it would not have
taken place because the buyer did not
bring enough money for the transaction.
Despite Estrada’s claim that he was a
victim of entrapment, we find this
argument to be a failing one. In an
entrapment situation, a person’s lack of
predisposition is the critical issue. See
United States v. Theodosopoulos, 48 F.3d
1438, 1444 (7th Cir. 1995) ("The lack of
predisposition is the principal element
in the entrapment defense.").
"Predisposition is not a purely mental
state, the state of being willing to
swallow the government’s bait." United
States v. Hollingsworth, 27 F.3d 1196,
1200 (7th Cir. 1994) (en banc). There is
a positional aspect that should be taken
into account along with the dispositional
considerations. For instance, "[a] public
official is in a position to take bribes;
a drug addict to deal drugs; a gun dealer
to engage in illegal gun sales." Id. As a
consequence, "For these and other
traditional targets of stings all that
must be shown to establish predisposition
and thus defeat the defense of entrapment
is willingness to violate the law without
extraordinary inducements; ability can be
presumed." Id. While it may be true that
certain Circuits, see Searcy, 233 F.3d at
1099 and United States v. Naranjo, 52
F.3d 245, 250 (9th Cir. 1995), recognize
that Application Notes 12 and 15 address
the issue of sentencing entrapment, the
Seventh Circuit has not to date adopted
this position. However, we need not
resolve this issue to address Estrada’s
contention because as it will soon become
clear, Estrada possessed the necessary
predisposition to commit the crime in
question, thus he has not successfully
established his entrapment defense.
Estrada was in a position to become
involved in the purchase of drugs and
willingly acted upon his desire to do so.
One must remember that Varela spoke with
Deysi, a woman who worked at the Sin
Frontera bar, and she put Varela in
contact with Estrada. When Estrada
arrived at the bar, he and Varela began
"talking about cocaine." It is rather
clear that Deysi was aware that Estrada
desired a source to supply him with
drugs, and had it not been Varela (the
government) who had done so, it would
have been some other dealer. See
Hollingsworth, 27 F.3d at 1200 ("It is
different when the defendant is not in a
position without the government’s help to
become involved in illegal activity.").
Estrada was also rather eager to obtain
the cocaine, indicating his willingness
to violate the law. For example, Estrada
asked Varela to "give him one [kilogram
of cocaine] right away." Even though
Varela had told Estrada he would be out
of town and could not supply him with the
one kilogram the very same day of their
initial meeting, according to Varela,
during a phone conversation the next day,
Estrada said that he "needed it [cocaine]
very badly." Later in that conversation
with Varela, Estrada said, "[W]ell it’s
urgent for me like right now." Estrada
asked Varela to proceed with the deal
right away after his brother inspected
the cocaine on January 18, but Varela
refused. Estrada was intent upon
purchasing cocaine from Varela and he
wanted the deal to proceed quickly.
Estrada agreed to buy five kilograms and
take two more kilograms on credit and he
did so under no duress. At one point
during the conversations between Estrada
and Varela, Estrada asked, "What do you
think, if, if I go for, for two, but
bring me five. I have here, I’ll bring
you for two . . . ." Later on Estrada
told Varela, "I, right now I have the
five sold." Shortly thereafter, he told
Varela, "Ok, I’ll go for the five, and
you’ll give the two on credit?," to which
Varela said, "Fine, Sergio." It appears
that Estrada needed to receive five
kilograms of cocaine from Varela because
he already had sold this amount to an
individual or several people. Varela
never pressured Estrada to go through
with the deal. In fact, when Estrada told
Varela that he did not want the deal to
take place in Hillside because he was
scared to go there with all the money
necessary to purchase the cocaine, Varela
told him, "Look, if you don’t want to,
there’s no problem, Sergio. For me,
there’s no problem, Sergio . . . and
we’ll remain friends, you know." However,
Estrada did agree to go through with the
deal in Hillside and on the morning of
January 19, the day the deal was to take
place, Estrada asked Varela, "But they’re
going to be seven, right? And five?"
Estrada was fixated upon Varela providing
him with five kilograms of cocaine.
Although Estrada would like us to accept
that he only had enough money ($60,000 if
one includes the $25,000 found in the
vehicle) at the most to purchase 3.75
kilograms of cocaine, this story is not
convincing. From the beginning, Estrada
was anxious to buy cocaine from Varela.
Throughout the negotiation period,
Estrada remained focused on obtaining
five kilograms of cocaine and for good
reason because he had sold this amount to
someone else. Therefore, it is more than
likely that Estrada arrived at Hillside
with the intention of paying Varela for
approximately 3 kilograms of cocaine and
obtaining the other two kilograms. This
would ensure that he would have the
requisite amount he needed for resale.
Varela could have charged Estrada the
higher price of $19,000 per kilogram and
Estrada would have had enough money to
purchase 3 kilograms (total costing
$57,000) and still receive two kilograms
on credit. Unquestionably, Estrada was
predisposed to purchasing the cocaine and
more than capable of buying at least 5
kilograms. See Cotts, 14 F.3d at 306 n.2
("He does not argue that he lacked a
predisposition to buy multiple kilogram
amounts of cocaine and that his will was
overborne by unrelenting government
persistence."). Therefore, no sentencing
entrapment occurred.
Having addressed Estrada’s sentencing
entrapment claim, we still need to
briefly explore whether Application Notes
12 and 15 as stated in the Sentencing
Guidelines (thus we are setting aside the
issue of whether these Notes address
sentencing entrapment) apply to Estrada’s
situation. See U.S.S.G. sec. 2D1.1,
comment. (nn.12, 15). Application Note 15
centers around the issue of whether "the
government agent set a price for the
controlled substance that was
substantially below the market value of
the controlled substance." U.S.S.G. sec.
2D1.1. This was not the case here. Agent
Grobe testified, "It [the price of one
kilogram of cocaine] can go down. But,
generally, I’ve never seen it go down
below 16,000 in this area. That’s usually
the rock bottom." Earlier, he had said
that the wholesale price of a kilogram of
cocaine in the Chicago area around
January of 2000 was "[a]nywhere from 16-
to 20,000, with an average of 18,000."
The clear implications of Agent Grobe’s
testimony is that $16,000 was the lowest
wholesale market price and that paying
less than $16,000 for a kilogram of
cocaine would be below market.
Consequently, Estrada cannot prove that
he was sold cocaine at below market
prices, since Varela offered him the
cocaine at $16,000. As for Application
Note 12, Varela as discussed earlier, was
reasonably capable of paying for five
kilograms of cocaine, so even if the
district court did not consider the
additional two kilograms that originally
Varela intended to give Estrada on
credit, he still would be eligible for
the same sentence. See U.S.S.G. sec.
2D1.1(c)(4). Thus, we affirm the district
court’s decision to find Estrada
accountable for 5 to 15 kilograms of
cocaine.
Conclusion
For the reasons stated herein, we AFFIRM
the decision of the district court.
FOOTNOTES
/1 During oral argument, we learned that the
government recovered $60,000 from the parking lot
at the Hillside Holiday Inn. An additional
$20,000 was recovered from the restaurant owned
by Estrada’s brother, although it is not clear
whether the $20,000 is connected in any way to
this case. Therefore, the government may have
confiscated with regard to this case either
$60,000 or $80,000 and Varela would be due 25
percent of either amount--that is, he would be
due either $15,000 or $20,000.
/2 Application Note 12 states, in relevant part:
If, however, the defendant establishes that he or
she did not intend to provide, or was not
reasonably capable of providing, the agreed-upon
quantity of the controlled substance, the court
shall exclude from the offense level
determination the amount of controlled substance
that the defendant establishes that he or she did
not intend to provide or was not reasonably
capable of providing.
Application Note 15 states, in relevant part:
If, in a reverse sting (an operation in which a
government agent sells or negotiates to sell a
controlled substance to a defendant), the court
finds that the government agent set a price for
the controlled substance that was substantially
below the market value of the controlled
substance, thereby leading to the defendant’s
purchase of a significantly greater quantity of
the controlled substance than his available
resources would have allowed him to purchase
except for the artificially low price set by the
government agent, a downward departure may be
warranted.