Unpublished Disposition, 916 F.2d 716 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 916 F.2d 716 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Christian Ernst DeGROOTE, Defendant-Appellant.

No. 89-50658.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 13, 1990.Decided Oct. 17, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.


MEMORANDUM* 

Christian Ernst DeGroote appeals his conviction and sentence for conspiracy to possess cocaine with intent to distribute (21 U.S.C. §§ 841(a) (1) and 846) and possession of cocaine with intent to distribute (21 U.S.C. § 841(a) (1)). DeGroote asserts two main arguments on appeal: first, he contends that outrageous government conduct in the investigation of his crimes denied him due process; and second, he argues that the imposition of a five-year mandatory minimum sentence pursuant to 21 U.S.C. 841(b) (1) (B) constitutes cruel and unusual punishment. He also argues that Congress did not intend the mandatory sentence of five years to apply to "mules." We reject each of these arguments, and affirm the convictions and sentence.

FACTS

On March 14, 1989, Dennis Quarantello, a Drug Enforcement Administration (DEA) informant in Los Angeles, contacted DEA Agent Calice Couchman in San Diego. Quarantello told Agent Couchman that the appellant was a cocaine dealer capable of supplying up to ten kilograms of the drug. Agent Couchman confirmed through the Los Angeles DEA office that DeGroote was a suspected drug dealer.

Over the next two weeks, and with the close assistance of informant Quarantello, Agent Couchman, acting in an undercover capacity, arranged to purchase five kilograms of cocaine from DeGroote. Agent Couchman called Quarantello frequently--as often as two or three times a day--during the course of the investigation; Quarantello, a close acquaintance of the appellant, was usually at DeGroote's home when Couchman called.

On March 29, 1989, Agent Couchman, Quarantello and the appellant met in a parking lot in La Jolla, California to complete the transaction. DeGroote informed Agent Couchman that he only had one kilogram at the time, but assured her that he would be able to provide nine or ten kilograms the following day. After discussing arrangements for the sale of the additional cocaine the next day, the appellant handed the cocaine over to the Agent, and the arrest was made.

At trial, a jury rejected DeGroote's entrapment defense and found him guilty on the possession and conspiracy charges. The trial judge sentenced him to five years in custody, the mandatory minimum sentence for the crime. DeGroote appeals both the conviction and the sentence; we have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

A. Outrageous Government Conduct.

After his conviction, DeGroote moved for a judgment of acquittal and a new trial on the grounds that there was insufficient evidence to support the verdict, and that there was sufficient evidence to require the judge to find entrapment as a matter of law. The trial judge denied both motions.

On appeal, however, the appellant argues for the first time that the trial court should have dismissed the indictment because it was the result of outrageous government conduct that violated DeGroote's right to due process. As a general rule, this circuit will not address arguments that are raised for the first time on appeal. Jovanovich v. United States, 813 F.2d 1035, 1037-38 (9th Cir. 1987); Bolker v. Commissioner of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985). That rule, however, is a discretionary one, and we have recognized exceptions "(1) when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, (2) when a change in law raises a new issue while an appeal is pending, and (3) when the issue is purely one of law." Jovanovich, 813 F.2d at 1037. Because DeGroote's outrageous government conduct argument alleges a violation of his constitutional rights, we will address the merits of his claim.1 

We review the denial of a motion to dismiss based on outrageous government conduct de novo.2  United States v. Slaughter, 891 F.2d 691, 695 (9th Cir. 1989). An indictment will be dismissed for outrageous government conduct only where that conduct is "so grossly shocking and so outrageous as to violate the universal sense of justice." Id. (quoting United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.), cert. denied, 488 U.S. 866 (1988)).

In this case, the appellant argues that the government acted outrageously in relying on the information provided by Quarantello to effect the arrest and conviction. DeGroote contends that the informant is such an unsavory character that the government ought not to be allowed to win a conviction based on information provided by him. Specifically, the appellant identifies four facts that would disqualify Mr. Quarantello as an informant: first, he was a drug dealer and user; second, he was paid by the government for his role as an informant; third, he was not prosecuted for certain crimes as a quid pro quo for testifying against his former criminal accomplices; and last, he was overly persistent in arranging the transaction that led to appellant's arrest.

In fact, Quarantello was once a drug smuggler, and the government did drop the charges against him in exchange for his cooperation in testifying against his cohorts. Moreover, since he left the drug smuggling organization, Quarantello has been paid over $19,000.00 for his work as an informant. None of these facts, however, whether considered singly or in combination, constitutes conduct that could be labelled "grossly shocking" or "so outrageous as to violate the universal sense of justice"; quite the contrary, they describe the daily routine of law enforcement officials in implementing our nation's drug laws.

In United States v. Simpson, 813 F.2d 1462, 1470 (9th Cir.), cert. denied, 484 U.S. 898 (1987), this court expressly rejected DeGroote's claim that the government may not rely on informants who have engaged in criminal activity: "It is unrealistic to expect law enforcement officers to ferret out criminals without the help of unsavory characters.... [T]he mere fact that [the informant] continued to use heroin and engage in prostitution during the investigation of Simpson did not oblige the FBI to stop using her as an informant." Id. Also in Simpson, we held that " [i]t is beyond cavil that government agents 'may rely on paid informants in order to locate and arrest criminals.' " Id. at 1469 (citing United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955 (1980)); accord United States v. Wylie, 625 F.2d 1371, 1378 (9th Cir. 1980), cert. denied sub nom. Perluss v. United States, 449 U.S. 1080 (1981). Too, in Simpson, we rejected the notion that the government may not offer an informant leniency or outright clemency in exchange for cooperation with enforcement officials: " [T]he fact that the agents offered to back off their investigation into [the informant's] own narcotics activities raises no due process concerns. It is common practice for the government to reduce or drop charges against persons who cooperate with law enforcement officials in prosecution of others...." 813 F.2d at 1469.

Finally, this court has recognized that "repeated and persistent" attempts by undercover agents to arrange an arrest describe "conduct typical of an undercover operation," United States v. Scott, 859 F.2d 792, 794 (9th Cir. 1988); there is absolutely no support for the claim that such typical conduct meets the standard of outrageous government conduct.

DeGroote's two arguments against the sentence imposed by the district court judge likewise have been rejected by this court. He argues, first, that the imposition of a five-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b) (1) (B) constitutes cruel and unusual punishment. That same claim was carefully considered by a panel of this court in United States v. Klein, 860 F.2d 1489, 1495-99 (9th Cir. 1988), a case where the defendant received precisely the same sentence that the appellant contests here. Employing the proportionality analysis established in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), we held that "application of the Solem factors ... compels the conclusion that appellant's sentence does not violate the eighth amendment." Klein, 860 F.2d at 1499; accord United States v. Kidder, 869 F.2d 1328, 1333-34 (9th Cir. 1989).

In the course of applying the Solem analysis in Klein, we also rejected DeGroote's second argument against the sentence, which is that Congress did not intend the mandatory minimum sentence to apply to "mules" in a drug ring. The term "mule" refers to a member of a drug ring who serves in a low-level capacity, most often as a drug courier. While conceding that "there is no ambiguity on the face of the minimum mandatory sentencing [statute]," the appellant nonetheless argues that " [i]t is obvious that the intent of Congress was to incarcerate the 'dealers,' not mere 'mules.' " App.Brief at 11.

The language of Sec. 841(b) (1) (B), however, does not so much as hint at such a distinction; that being the case, we find wholly without merit the argument that Congress' intent somehow modifies or contravenes the words it chose to express that intent. A drug conspiracy requires participants at all levels to be effective; whatever role the appellant played, it is clear that the jury found him to be part of the conspiracy.3  That being the case, the judge merely followed the statutory directive in sentencing him to the five-year mandatory minimum term. As we held in Klein, " [t]he fact that appellant may have had 'the lowest possible role' in the narcotics conspiracy does not diminish the level of culpability which attended his own acts." Id. at 1497.

CONCLUSION

We conclude that the government's use of informant Quarantello to effect DeGroote's arrest and conviction did not violate the appellant's due process rights. Furthermore, the imposition of the statutorily-prescribed five-year mandatory minimum sentence did not constitute cruel and unusual punishment, and the application of that sentence to one in the appellant's position in a conspiracy is wholly consistent with the statute. The appellant's conviction and sentence are affirmed.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

See United States v. Phelps, 877 F.2d 28, 31 (9th Cir. 1989) (dismissing as meritless a claim of outrageous government conduct raised for the first time on appeal); Prantil v. State of California, 843 F.2d 314, 319 n. 5 (9th Cir.), cert. denied, 488 U.S. 861 (1988) ("Because a claim that a district court violated a party's due process rights questions the integrity of the federal judicial system, we review [appellant's] claim despite his failure to raise it below.")

 2

Because the appellant raised this issue for the first time on appeal, there was no actual denial of such a motion by the district court. Nonetheless, having decided to address the issue, we apply the same standard that would apply had the issue been raised

 3

It is not at all clear that DeGroote was a "mere mule" in the transaction that led to his arrest. Indeed, based on the record, it appears that he was much more than a courier. As this discussion makes clear, however, a proper characterization of a defendant's precise role in the conspiracy is irrelevant to the sentencing decision under Sec. 841(b) (1) (B)