This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Becker County District Court
File No. K202532
Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, Box 476, Detroit Lakes, MN 56502-0476 (for respondent)
John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
Appellant challenges his conviction of and sentence for four counts of second-degree controlled substance offense, arguing that the government’s conduct in setting up an informant-run drug house within a school zone was so outrageous as to give rise to a due process defense. Appellant also challenges evidentiary rulings and argues that the government engaged in sentencing manipulation. Because the government’s acts do not give rise to a due process violation, the district court did not abuse its discretion in evidentiary rulings, and the state did not manipulate sentencing, we affirm.
In the spring of 2000, Detroit Lakes Police Chief Kel Keena became aware of an informant who successfully helped the Little Falls police with a burglary and stolen weapons operation involving 65 defendants. Little Falls law enforcement officials recommended the informant, Michael Felix, to Chief Keena. Chief Keena met with Felix and special agent Pat Johnston from the West Central Minnesota Drug Task Force. It was decided that Detroit Lakes law enforcement would set up an undercover drug operation in Detroit Lakes using Felix as an informant.
In the summer of 2000, Felix looked for a home for his family in Detroit Lakes that had at least three bedrooms, was affordable on his Social Security Disability income, and was located near the police department. Chief Keena assisted Felix in the search for a suitable location, and eventually put Felix in touch with the landlord of 414 Willow Street, a property located within a school zone. The landlord, who was not aware that Felix was renting the property to establish an undercover drug operation, agreed to rent the property to Felix, who moved in with his family in August 2000.
The task force paid Felix’s first month’s rent and relocation expenses and paid for installation of a video camera at the residence. The plan was for Felix to make and record drug buys at the residence. Felix was paid $50 for each marijuana buy and $100 for each cocaine or methamphetamine buy, regardless of the quantity involved. During the course of the nine-month investigation, Felix made approximately $17,000.
Felix was supposed to call Agent Johnston before a sale took place. Felix failed to call Agent Johnston before approximately 50% of the buys due to short notice, or no notice, that a seller was coming to the residence. Felix was to record each buy and keep the controlled substance in view of the video camera. After a seller left the residence, Felix, while still being videotaped, put the drugs in a lock box provided by Agent Johnston. Felix then approached the camera and stated the time, seller’s name, the type of drug purchased, the amount purchased, and the cost. Felix controlled when the camera was turned on and off.
After each buy, Felix contacted Agent Johnston and met with him to give him the videotape and the lock box. Only Agent Johnston had a key to the lock box. Agent Johnston would unlock the lock box, remove the controlled substance and return the box to Felix for the next buy.
Throughout the course of the drug operation, neighbors, who were unaware of police involvement in this operation, complained to the police about the high volume of short-term traffic at the Felix residence. Agent Johnston maintained almost daily contact with Felix during the operation and never observed any indication of controlled substance sales by Felix or substance use in the residence.
According to the state, appellant sold Felix 3.5 grams of methamphetamine at Felix’s residence on November 12, 2000, but the transaction was not recorded. On November 15, appellant sold Felix 3.2 grams of methamphetamine, on November 16, appellant sold Felix 1.4 grams of methamphetamine, on November 19, appellant sold Felix 2.5 grams of methamphetamine, and on November 25, appellant sold Felix 2.8 grams of methamphetamine. These four transactions were recorded. Appellant was charged with five counts of second-degree controlled substance crime under Minn. Stat. § 152.021, subd. 1(6)(ii) – sale of methamphetamine in a school zone, and one count of first-degree controlled substance crime under Minn. Stat. § 152.021, subd. 1(1) – selling one or more mixtures of a total weight of 10 grams or more of methamphetamine, based on the total weight of the combined sales.
Appellant testified that he never sold drugs to Felix. He testified that Felix was always smoking marijuana and people of all ages (teens to thirties and forties) would come to Felix’s house to use drugs. Appellant testified that he observed Felix sell drugs to others and that Felix sold drugs to him on several occasions.
Appellant’s friend, Brandon Haluptzok, testified on appellant’s behalf. At the time of appellant’s trial, Haluptzok was in prison for controlled substance crime in the second degree resulting from the Felix drug operation. Haluptzok testified that he saw Felix sell marijuana and methamphetamine to appellant. The court excluded testimony of three other proposed defense witnesses who would have testified that Felix sold drugs to them and others during the course of the drug operation.
Appellant moved to dismiss the charges, arguing that the conditions of the drug operation were so outrageous that his right to due process was violated. The district court denied the motion. The jury acquitted appellant of the count of second-degree controlled substance crime based on the unrecorded November 12 alleged sale, convicted appellant of four counts of second-degree controlled substance crime for the remaining sales, and acquitted appellant of the first-degree controlled substance crime. The court sentenced appellant to concurrent terms of imprisonment of 58, 68, 88, and 98 months.
This appeal followed.
I. Due process defense
The so-called due-process defense was discussed in Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646 (1976), in which a plurality of the Court recognized the possibility that government conduct may require dismissal of a charge, even where the defendant was predisposed to commit an offense, if the conduct of the government in participating in or inducing the commission of the crime is sufficiently outrageous. State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978); State v. James, 484 N.W.2d 799, 801 (Minn. App. 1992). “This is a legal defense which must be left to the court to apply.” Morris, 272 N.W.2d at 36. Therefore the standard of review is de novo.
In James,this court approved the district court’s use of a four-factor test enunciated by the New York Court of Appeals in People v. Isaacson, 378 N.E.2d 78 (N.Y. 1978), when a defendant raises a due process issue relating to a drug crime. James, 484 N.W.2d at 802. Those factors are:
(1) Whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity;
(2) Whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice;
(3) Whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and
(4) Whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.
Id. (citation omitted).
a. Detroit Lakes law enforcement involved itself in ongoing criminal activity
Testimony at the due process hearing established that illegal drugs are “readily available” in Detroit Lakes and that the purpose of the undercover operation was to get drugs off the street and put drug dealers in jail. Appellant argues that because the residential neighborhood where the drug-buy house was located had no previous history of drug trafficking, the police manufactured the crime. But the purpose of the investigation was to focus on drug traffic in Detroit Lakes, not a specific area or neighborhood of Detroit Lakes. The Detroit Lakes operation involved a police informant in ongoing criminal activity and did not manufacture a crime that otherwise would not likely have occurred.
b. Police were not involved in conduct repugnant to a sense of justice
Appellant argues that law enforcement failed to adequately control or monitor the activities of the informant. But appellant fails to cite any support for the proposition that law enforcement’s failure to monitor an informant is a relevant consideration under this prong of Isaacson. As respondent concedes, the drug operation was not perfect and there is always a risk that an informant may lie, but law enforcement was in daily contact with Felix and regularly collected the tapes and contraband from him over the course of the operation without developing any concern for Felix’s conduct. As Justice Powell stated in Hampton, “Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Hampton 425 U.S. at 495 n. 7, 96 S. Ct. at 1653 n. 7 (Powell, J., concurring). And the Hampton court declined to find entrapment or a due process defense where the government both supplied contraband and bought it from the defendant. Id. at 802 (citing Hampton, 425 U.S. at 489-90, 96 S. Ct. at 1649-50). And, as the United States Supreme Court stated in Hampton, “if the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law.” Hampton, 425 U.S. at 490, 96 S. Ct. at 1650 (citations omitted).
c. Appellant was not reluctant
Appellant did not present any evidence of his reluctance to be involved in drug sales with Felix, or any evidence of actions by Felix to induce his participation. The videotapes of the drug buys portray a non-reluctant appellant selling methamphetamine to Felix.
d. Record evinces police motive to prevent further crime and protect the populace
The fourth factor concerns whether the motive behind the operation involved preventing further crime and protecting citizens. The relevant testimony at the due process hearing was that the focus of the drug operation was to take as much controlled substance and as many drug dealers off of the streets of Detroit Lakes as possible. There is no evidence of an “overriding police desire for a conviction of any individual.” Isaacson, 378 N.E.2d at 84. In this case, the police were properly motivated to reduce illegal drug sales in Detroit Lakes.
Based on the application of the Isaacson factors to the facts of this case, we conclude that the district court correctly determined that the police conduct was not so outrageous as to give rise to a due process defense.
II. Evidentiary rulings
a. Exclusion of defense witnesses who claimed Felix was selling drugs
“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
Appellant sought to introduce the testimony of three witnesses, in addition to his own testimony and the testimony of Haluptzok, to show that the informant was selling controlled substances rather than purchasing them. At the district court, appellant relied on a “reverse Spreigl” theory to argue for the admission of the testimony of these three witnesses, and argued in a memorandum titled “Memorandum of Law for Admission of Reverse Spreigl Evidence” that the testimony “is relevant, material, and appropriately admissible as reverse Spreigl evidence for the defendant.” In his brief, appellant concedes that the reverse Spreigl theory is without merit, and we agree.
Appellant asserts, on appeal, that the proposed testimony is admissible under Minn. R. Evid. 616 as relevant evidence of the bias and motive Felix had to testify the way he did. But this is not the same theory that appellant relied on at trial. See State v. Carroll, 639 N.W.2d 623, 629 n. 3 (Minn. App. 2002) (“party may not obtain review by raising the same issue under a different theory”), review denied (Minn. May 15, 2002). We will only review this issue if exclusion of the testimony constitutes plain error. Minn. R. Crim. P. 31.02 (plain errors affecting substantial rights may be considered on appeal although not brought to attention of trial court).
To succeed under a claim of plain error, appellant must show: “(1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citations omitted). “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.
“For the purpose of attacking the credibility of a witness, evidence of bias, prejudice or interest of the witness or against any party to the case is admissible.” Minn. R. Evid. 616. “Bias is a catchall term describing attitudes, feelings, or emotions of a witness that might affect her testimony, leading her to be more or less favorable to the position of a party for reasons other than the merits.” State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (citations omitted). Extrinsic evidence may be admitted to show a witness’s bias, interest, or influence. Id. But “courts may exclude evidence that is only marginally useful for [the purpose of showing bias.] The evidence must not be so attenuated as to be unconvincing because then the evidence is prejudicial and fails to support the argument of the party invoking the bias impeachment method.” Id. (discussing restriction of cross-examination related to witness’s bias).
Proposed witnesses Pam Lederhaus, Jacob Weisser, and Michael Brekke testified at appellant’s due process hearing. Weisser and Brekke testified that they were at the Felix residence in the summer of 2001. Weisser testified that he saw Felix sell and smoke marijuana and that Felix had given him marijuana. Brekke testified that Felix used marijuana, sold marijuana to him and others, sold methamphetamine to Jeremy Dupree, and had threatened Dupree with a gun. Pam Lederhaus, whose ex-husband was convicted of controlled substance crimes resulting from this drug-house operation, testified at appellant’s due process hearing that she saw Felix smoke marijuana twice in her home in November or December of 2000, and she saw him in possession of multiple small baggies of marijuana that he had stored in her home. None of the witnesses claimed to have seen Felix selling drugs to appellant. The testimony of all three witnesses was impeached at the due process hearing and the district court specifically found that “the defense has failed to meet its burden of proof on the issue of whether Felix sold or otherwise provided controlled substances to juveniles or other persons.” Felix reported appellant’s sales to law enforcement in November 2000, so the alleged sales by Felix giving rise to a reason to lie had not even occurred until after Felix had reported appellant’s sales. We conclude that the testimony of these witnesses was so attenuated from the events of the charges against appellant as to be only marginally, if at all, useful for the purpose of showing bias, and the district court did not abuse its discretion by excluding the testimony.
Even if we concluded that the district court plainly erred in not allowing the testimony of Weisser, Brekke, and Lederhaus to show bias by Felix, appellant has failed to show that his substantial rights were affected or that the fairness or integrity of the proceedings was seriously affected. Haluptzok testified that he met Felix in September 2000, bought marijuana from him, and witnessed appellant buying marijuana and methamphetamine from Felix. Appellant also testified that he was buying drugs from Felix rather than selling drugs to him. The jury, therefore, heard evidence of appellant’s theory that Felix, rather than appellant, was selling the drugs during the videotaped transactions, but apparently did not find the evidence credible. See State v. Profit, 591 N.W.2d 451, 467 (Minn. App. 1999) (jury is in the best position to evaluate credibility of witnesses).
b. Evidence of methamphetamine manufacture
During cross-examination of Agent Johnston, appellant’s trial counsel asked about the efficacy of fingerprinting in drug cases and then specifically asked about efforts to fingerprint the plastic baggies in this case. Agent Johnston responded that the “chemicals used to manufacture methamphetamine” make it difficult to lift fingerprints off of the baggies used in appellant’s case. On redirect, the prosecutor elicited testimony from Agent Johnston regarding his training and experience in the manufacture of methamphetamine and had Agent Johnston explain the types of chemicals used in the manufacture of methamphetamine and how those chemicals affect fingerprinting efforts. Appellant’s counsel’s objection to this questioning was overruled on the basis of the district court’s determination that defense questions about failure to fingerprint the baggies opened the door for the state to elicit testimony that the chemicals used in the manufacture of methamphetamine make it hard to get fingerprints. Appellant’s request for a curative instruction at the time of the testimony was denied because the court determined that appellant “will have a curative instruction because the Court informs the jury that they are not to convict [appellant] for any crime for which he is not charged. He’s not charged in this case with manufacture, he is not charged in this case with possession.” Appellant asserts that evidence about methamphetamine manufacturing was irrelevant and prejudicial. But relevant evidence is any evidence that has a tendency to make the existence of a fact of consequence more probable or less probable. Minn. R. Evid. 401. The district court did not abuse its discretion by determining that appellant’s counsel opened the door for the prosecutor to lay a foundation regarding Agent Johnston’s training and expertise in the area of methamphetamine manufacture and to elicit further testimony regarding the chemicals involved and how they affect fingerprinting.
And even if the district court erred in admitting the evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn. 1994). Only if there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, is the error prejudicial. Id. Here, there is not a reasonable possibility that this evidence affected the verdict. Appellant was not charged with the manufacture of methamphetamine, and the jury was instructed not to convict appellant for any crime with which he was not charged. We assume jurors follow the instructions of the court. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).
c. Exclusion of evidence of Felix’s 19-year-old burglary conviction
Appellant claims that the state opened the door to impeachment of Felix with his 19-year-old conviction for burglary or more specifically, Felix’s failure to disclose the stale conviction to law enforcement. We disagree. The questions the state asked Johnston did not focus on Felix’s credibility, but on assessing the credibility of informants generally. Appellant’s trial counsel did not object to the prosecutor’s question regarding whether Johnston thought Felix “would be good” at this job and Johnston’s response was that Felix performed reliably in other operations in different counties and that his appearance was appropriate for the drug world because of his various tattoos and piercings. The district court did not abuse its discretion by concluding that the state did not open the door to questioning about Felix’s non-disclosure of a stale felony conviction.
Even if the court erred in ruling that the state did not open the door to impeachment of Felix’s credibility, any error was harmless. On cross-examination of Felix, appellant’s trial counsel asked Felix about his life of deception, being a “professional snitch,” and having the ability and opportunity to change the padlock on the lock box or have drugs in his pockets during transactions or have drugs in his house. Substantial evidence of Felix’s ability to deceive was before the jury such that, even if error occurred, there was no likelihood it significantly affected the verdict.
“A district court’s exercise of discretion relating to sentencing will be reversed on appeal only if the ‘discretion is not properly exercised and the sentence is unauthorized by law.’” State v. Noggle, 657 N.W.2d 890, 893 (Minn. App. 2003) (citations omitted). Appellant challenges his sentences for four counts of selling methamphetamine in a school zone. See Minn. Stat. § 152.01, subd. 14a(2) (2000) (defining school zone as within 300 feet of school property); Minn. Stat. § 152.022, subd. 6(ii) (2000) (sale of any amount of methamphetamine is a second-degree substance crime if done within school zone). Appellant claims that the government engaged in sentencing manipulation by locating the undercover drug operation in a school zone, which resulted in appellant being charged with second-degree controlled substance crimes rather than third-degree controlled substance crimes.
“Sentencing manipulation is outrageous government conduct aimed only at increasing a person’s sentence.” State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997) (citations omitted). In Soto, the court declined to adopt the doctrine of sentencing manipulation “in the absence of egregious police conduct which goes beyond legitimate investigative purposes.” Id. Therefore, the doctrine of sentencing manipulation has yet to be recognized in Minnesota.
Appellant argues that it was “unconscionable” for law enforcement to locate an undercover drug operation in a school zone and thereby increase his sentence and invites this court, for the first time, to recognize the doctrine of sentencing manipulation in Minnesota. On the facts of this case, we decline the invitation.
Even if we were inclined to adopt the doctrine of sentencing manipulation, the facts of this case do not establish conduct aimed only at increasing appellant’s sentence that would give rise to application of the doctrine. The issue of the location of the drug-house operation was the subject of extensive testimony at the due process hearing. The district court specifically found that the location of the school played no role in the selection of the home, and the record supports that finding with ample evidence that the location of this undercover operation was based on legitimate factors that had nothing to do with enhancing the sentences of individuals who chose to sell drugs to the police informant.
Appellant also asserts that his sentence, although permissible under the sentencing guidelines, must be reduced because he was acquitted of the more serious first-degree offense for which his presumed guideline sentence would have been 98 months in prison, but by sentencing appellant to concurrent sentences using the Hernandez method of calculating appellant’s criminal history score, the district court was able to impose the same sentence as if he had been convicted of the more serious offense, unduly exaggerating his criminality. When a criminal defendant raises an issue of fairness in sentencing on appeal, the reviewing court has the discretion to modify the sentence. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988) (modifying consecutive sentences of 60 months each for aggravated assault added to a sentence of life imprisonment as unfairly exaggerating the criminality of defendant’s conduct). Appellant cites no authority for his proposition that because he was acquitted of the first-degree offense his sentence for the remaining offenses must be less than the presumptive sentence for that offense. And appellant has not argued that his sentence is disproportionate to sentences imposed on others similarly situated. Id. (stating that to achieve fairness the court will compare a challenged sentence with those of other offenders). Appellant has not presented any evidence that the district court was trying to manipulate his sentence to achieve a substantive result that the sentencing guidelines did not intend.
 Appellant was also convicted of and sentenced for one count of sale of 3.2 grams of methamphetamine, a second-degree offense regardless of location, and he does not challenge his sentence on this charge.