State of Minnesota, Respondent, vs. Robert John Verdon, Appellant.

State of Minnesota, Respondent, vs. Robert John Verdon, Appellant. A04-2512, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2512

 

State of Minnesota,
Respondent,
 
vs.
 
Robert John Verdon,
Appellant.

 

Filed April 18, 2006

Affirmed

Peterson, Judge

 

Chippewa County District Court

File No. K5-04-147

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Building, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Dwayne Knutsen, Chippewa County Attorney, P.O. Box 591, Montevideo, MN  56265 (for respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from his conviction of and sentence for first-degree controlled-substance crime, appellant Robert John Verdon argues that because the government's conduct in setting up more than one controlled buy constitutes sentencing manipulation, he is entitled to reversal of the conviction or a reduction of his sentence.  Because appellant failed to demonstrate that setting up a second and a third controlled buy was egregious police conduct that goes beyond legitimate investigative purposes or that the sole purpose of the additional controlled buys was to increase appellant's sentence, we affirm.

FACTS

            As one of the conditions of a plea agreement, a confidential informant (CI) who had been charged with a controlled-substance crime agreed to participate in controlled buys of methamphetamine.  The first controlled buy occurred on March 3, 2004.  Officer Adam Christopher followed the CI to the truck stop where the buy occurred.  Christopher watched as the CI and appellant drove in the CI's car from one side of a parking lot to the other.  Christopher monitored their conversation with an audio transmitting device.  The CI then drove back to the other side of the parking lot and dropped off appellant.  Christopher followed the CI to a pre-arranged meeting location, where the CI gave Christopher two baggies containing a crystal-type substance.  Field tests indicated that the substance was methamphetamine.  The CI identified appellant as the man who was in her car and as the person who gave her the two baggies.  The total weight of the two baggies and their contents was four grams.

The second controlled buy occurred on March 16, 2004.  Christopher again followed the CI to the truck stop and watched as a Pontiac Grand Am drove into the parking lot and parked next to the CI's vehicle.  Christopher monitored a conversation between the CI and a male who was later identified as appellant.  Christopher saw the Grand Am and the CI's vehicle leave the parking lot.  Christopher met the CI at a pre-arranged location, where the CI gave Christopher three packages containing a crystal-type substance and three unused hypodermic needles.  The CI reported that the packages and the needles were given to her by appellant.  Field tests indicated that the substance in the packages was methamphetamine.  The total weight of the packages and their contents was 7.4 grams.

            The third controlled buy occurred on March 30, 2004, in a Wal-Mart parking lot.  Christopher watched as a white van drove into the parking lot and parked next to the CI's truck.  Through binoculars, Christopher saw that appellant was driving the van.  A short time later, the van left, and Christopher met the CI at a pre-arranged location, where the CI gave Christopher a baggie containing a crystal-like substance and told Christopher that she had met with appellant and purchased the substance from him.  Field tests indicated that the substance in the baggie was methamphetamine.  The total weight of the baggie and its contents was 3.7 grams.

            Appellant was charged with one count of fourth-degree controlled-substance crime in violation of Minn. Stat. § 152.024, subd. 1(1) (2002); two counts of second-degree controlled-substance crime in violation of Minn. Stat. § 152.022, subd. 1(1) (2002); and one count of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2002).  Appellant moved to dismiss the first-degree count, arguing that the state allowed the second and third controlled buys to occur solely to make the case against him more serious.  The district court denied the motion to dismiss.  A jury found appellant guilty as charged, and the district court imposed a 115-month sentence for the first-degree controlled-substance crime.  This appeal followed.

D E C I S I O N

Appellant argues that the police violated his right to due process when they waited until after the second and third controlled buys to arrest him.  Appellant contends that by waiting to arrest him, police manipulated the amount of drugs sold, which increased his sentence.  Appellant also contends that the only reason the police waited to arrest him was to manipulate his sentence. 

"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) (citing United States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993)).  In Soto, the supreme court declined to adopt the doctrine of sentencing manipulation "in the absence of egregious police conduct which goes beyond legitimate investigative purposes."  Id.  The supreme court also stated in Soto "that it is reasonable for the police to engage in a chain of transactions with a drug dealer in order to establish that person's guilt or to trace the dealer's supplier" and concluded that

[b]ecause Soto would bear the burden of establishing the presence of sentencing manipulation, his claim must fail because of the absence of any evidence showing that the drug sales were obtained for the sole purpose of increasing his sentence, rather than to establish his guilt or to trace his supplier.

 

Id.

In denying appellant's motion to dismiss, the district court concluded that, as in Soto, appellant did not produce evidence of egregious police conduct or that the sole purpose of the multiple sales was to increase appellant's sentence.

Appellant contends that Meeker County Deputy Brian Cruze's testimony at the omnibus hearing is an admission that by allowing the second and third controlled buys, the police "were simply inducing [appellant] to cross the threshold to a first degree controlled substance crime."  During cross examination, Cruze testified as follows:

Q. Whose decision was to not arrest him on that occasion?

A. Ah, that would be, ah, Agent Christopher

Q. Okay.  Is that, was the logic or the reasoning discussed with you at all?

A. The, ah

Q. For not arresting him on that first occasion?

A. My understanding for the reason for that is that, um, the information received is that [appellant] ah, ah, made regular sales, ah, of this quantity and if after three sales, you would have a quantity that would be, that aggravates to a first degree case.  Ah, it was determined that based on the history of what we knew that we would make the arrest after that, ah, threshold was met.

 

Although this testimony indicates that the police considered the severity level of appellant's offense, it does not demonstrate that allowing the second and third buys to occur was egregious police conduct that goes beyond legitimate investigative purposes or that the police allowed the second and third buys to occur for the sole purpose of increasing appellant's sentence, rather than to establish his guilt.

Under Minn. Stat. § 152.021, subd. 1(1) (2002), "[a] person is guilty of controlled substance crime in the first degree if: (1) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing . . . methamphetamine."  The plain language of this statute describes the offense in terms of a person's conduct "on one or more occasions within a 90-day period."  Because the statutory definition of first-degree controlled-substance crime specifically includes conduct on one or more occasions within a 90-day period, allowing the second and third controlled buys to occur is not egregious police conduct that goes beyond legitimate investigative purposes. 

Cruze's omnibus testimony indicates that police had information that appellant made regular sales in quantities less than ten grams.  Regular sales in quantities less than ten grams would be a first-degree offense if the total quantity sold reached ten grams within a 90-day period.  But a police investigation could not discover what appellant's conduct would be on more than one occasion within a 90-day period if police arrested appellant after the first controlled buy.  Because the statute defines the first-degree offense in terms of recurring conduct, allowing more than one buy to occur was legitimately directed to establishing appellant's violation of the statute.  Cruze's statement that police intended to arrest appellant when the ten-gram threshold was met reflects the fact that at that point, appellant's guilt of the first-degree offense could be established.

In United States v. Shephard, the defendant made a sentencing manipulation argument that attacked the government's investigation of his drug dealing, claiming that the investigation, which involved 12 drug purchases during an eight-month period, was too long and involved too many buys.  4 F.3d at 648-49.  In considering the point at which leading on even a willing criminal becomes unfair to the point of being unconstitutional, the court observed that

[o]bviously, any transaction in a sting after the first violation of law, however minor, will be subject to such attacks.  Yet, we have established that it is legitimate for police to continue to deal with someone with whom they have already engaged in illicit transactions in order to establish that person's guilt beyond a reasonable doubt or to probe the depth and extent of a criminal enterprise, . . . and to trace the drug deeper into the distribution hierarchy.

 

Id. at 649 (quotation omitted).  The court then concluded that "[t]he course of the transactions in this case shows a legitimate pattern of increasing amounts of drugs culminating with the final 218 grams sale, which indicates that police did no more than persist in ascertaining what quantity Shephard was willing and able to deal."  Id.

            Like the investigation in Shephard, the investigation of appellant's sales did no more than ascertain whether appellant was willing and able to sell ten or more grams of methamphetamine in a 90-day period.  Appellant has not shown that allowing additional buys to occur after he participated in the first controlled buy was egregious police conduct that went beyond legitimate investigative purposes or that the sole purpose of the additional buys was to increase his sentence.  Therefore, appellant has not established the presence of sentencing manipulation, and under Soto, appellant's claim that he is entitled to reversal of his conviction on the first-degree offense or a reduction of his sentence must fail.

            Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.