Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 Cr 36 -- Frank J. McGarr, Judge.
Before Pell and Wood, Circuit Judges, and Hoffman, Senior District Judge.*fn*
The defendant Willie Horton was convicted after a bench trial on all counts of a four-count indictment charging distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). He was sentenced to eight years on each count with the sentences to run concurrently. In this appeal he argues that the trial court erred in admitting recorded conversations between himself and an informant, that the convictions on Counts II and III of the indictment are multiplicitous, and that the sentences imposed on Counts I, II, and III exceed the statutory maximum.
I. The Recorded Conversations
The recorded conversations admitted and considered by the district court were obtained by Special Agent Kenneth Labik of the Drug Enforcement Administration (DEA) through the cooperation of Marcus Fisher, a confidential informant. Fisher began working as an informant for the DEA on November 1, 1976, in return for certain benefits. That day he called Horton from the DEA office in Chicago to discuss the purchase of narcotics. Agent Labik recorded the conversations with Fisher's permission. Agent Labik then placed a "KEL-set" transmitter on Fisher, with his permission, and Fisher met with the defendant and purchased the controlled substance. This procedure was repeated on December 2, 1976, and on January 12, 1977, resulting in two more narcotics purchases.
Horton challenges the admission of these recorded conversations on several grounds. First, he argues that warrantless recordings with the consent of only one of the parties violates the Fourth Amendment. We cannot agree. The law is well-settled that
there is no interest protectible by the Fourth Amendment in those situations in which one party to a conversation reposes a trust or confidence in the other party who is actually an undisclosed government agent or informant. E. g., Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). . . . Nor is the Fourth Amendment violated because the undisclosed agent simultaneously records the conversation with an electronic recording device on his person, Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963), or because the conversation is electronically transmitted by the undisclosed agent to a remote place where it is overheard by other agents and/or recorded. United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270 (1952).
United States v. Craig, 573 F.2d 455, 474 (7th Cir. 1977), Cert. denied, 439 U.S. 820, 99 S. Ct. 82, 58 L. Ed. 2d 110 (1979). Accord, United States v. Bastone, 526 F.2d 971, 978 (7th Cir. 1975), Cert. denied, 425 U.S. 973, 96 S. Ct. 2172, 48 L. Ed. 2d 797 (1976); United States v. Santillo, 507 F.2d 629 (3d Cir. 1975), Cert. denied, 421 U.S. 968, 95 S. Ct. 1960, 44 L. Ed. 2d 457; United States v. Lippman, 492 F.2d 314 (6th Cir. 1974), Cert. denied, 419 U.S. 1107, 95 S. Ct. 779, 42 L. Ed. 2d 803 (1975); United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), Cert. denied, 421 U.S. 916, 95 S. Ct. 1577, 43 L. Ed. 2d 782 (1975); United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973); United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973), Cert. denied, 414 U.S. 823, 94 S. Ct. 124, 38 L. Ed. 2d 56; Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973), Cert. denied, 414 U.S. 1116, 94 S. Ct. 850, 38 L. Ed. 2d 744; United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), Cert. denied, 409 U.S. 877, 93 S. Ct. 128, 34 L. Ed. 2d 130.*fn1 The only authority offered by the defendant to support his contention are two state court opinions,*fn2 neither of which we find persuasive, especially in light of the overwhelming federal authority to the contrary.
The second ground on which the defendant challenges the admission of the recorded conversations is that the informant, Fisher, did not voluntarily consent to the electronic recording of his conversations with the defendant.*fn3 The defendant argues that Fisher's consent was not voluntary because of the benefits he received for cooperating with the DEA. In September or October of 1976, Fisher called Agent Labik from the Metropolitan Correctional Center and told Labik that he wanted to cooperate with the DEA. At the time Fisher was under indictment for the sale of heroin to which he pled guilty in September 1976. He offered several names, including Horton's, as possible targets of investigation. Labik told him that his cooperation with the Government could not hurt him in regard to his pending indictment, but Labik did not tell him that such cooperation would benefit him. Labik spoke with an Assistant United States Attorney on this matter who agreed to try to delay Fisher's sentencing until the investigation of the defendant was completed so that Fisher's cooperation could be made known to the sentencing court. The sentencing court was informed of Fisher's cooperation and sentenced him to five years probation. Labik also communicated with a Michigan State's Attorney in regard to a matter as to which Fisher had pled guilty. The State's Attorney agreed that Fisher would be released from Michigan custody in consideration of time served. Fisher's cooperation with the DEA began after the occurrence of the Michigan incident. Finally, the Government gave Fisher approximately $4,700 for his work as an informant, approximately $3,500 to $4,000 of which was for his work regarding the defendant's investigation, and promised him safekeeping and protective custody.
At issue is whether these benefits vitiate Fisher's consent to the recording of his conversations with the defendant. The resolution of this issue is significantly simpler once it is understood that the standard for showing that an informer consented to the recording of a conversation is different from the standard for showing that a defendant or a third party consented to a physical search.
In cases involving physical search, the person alleged to have consented is doing something apparently contrary to his own interests or to those of another who often is in some way connected with him. An informer's consent to the monitoring or recording of a telephone conversation is an incident to a course of cooperation with law enforcement officials on which he has ordinarily decided some time previously and entails no unpleasant consequences to him.
United States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973).*fn4 On the basis of this distinction, the Second Circuit announced the standard, applicable to the present case, that "it will normally suffice for the Government to show that the informer went ahead with a call (or other recorded activity) knowing what the law enforcement officials were about." Id.
Generally, any benefits that an informant might receive for cooperating with Government investigations would not vitiate his voluntary consent to the electronic recording of his conversations. For example, in United States v. Franks, 511 F.2d 25, 31 (6th Cir. 1975), Cert. denied, 422 U.S. 1042, 95 S. Ct. 2656, 45 L. Ed. 2d 693, the defendants argued that
Davis (the informant) had a long criminal record and had numerous charges pending against him. The Government placed him under full protective custody, gave him an extremely nice apartment for he (sic) and his girlfriend, provided him with a living allowance, secured for his use a new Cadillac automobile and gave him other special considerations. Additionally, Davis was never tried for or sentenced ...