Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 410--Charles R. Norgle, Sr., Judge.
Bauer, Chief Judge, Cudahy, and Manion, Circuit Judges.
On May 27, 1987, Elena Bontkowski was arrested after selling a half-kilogram of cocaine to an undercover Drug Enforcement Administration (DEA) agent. She was charged with one count of attempting to distribute cocaine, in violation of 21 U.S.C. § 846, and three counts of distributing cocaine, each in violation of 21 U.S.C. § 841(a)(1). A fifth count, which charged her with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, was dismissed. After a jury trial, Bontkowski was found guilty on all four counts. On appeal, Bontkowski contends that the district court erred in refusing to submit her proposed jury instructions on outrageous governmental conduct. She also contends that she was deprived of a fair trial on the basis of three instances of alleged misconduct by the prosecutor. For the following reasons we affirm Bontkowski's conviction.
In February of 1987, Fermin Gomez called the DEA and offered to provide information about someone he knew who was selling cocaine. After checking Gomez's background, the DEA enrolled him as an informant. On February 25th, Gomez brought undercover agent Tony Greco to Bontkowski's house and introduced them. Greco told Bontkowski he wanted to buy a gram of cocaine. Bontkowski called one of her sources (she said she had two--a Greek and a Latin). When the source failed to return her call, Greco left. On March 12th, Greco returned to Bontkowski's house, unaccompanied by Gomez. He bought twenty-two grams of cocaine and discussed buying larger amounts. At trial, Bontkowski testified that Gomez supplied her with the cocaine which she sold to Greco and that Gomez was upstairs during the sale. On March 26th, Greco bought forty-six grams of cocaine from Bontkowski and discussed buying a kilogram. Greco testified that Bontkowski told him that her ex-husband could supply a half-kilogram to a kilogram of cocaine. Bontkowski testified that, as in the March 12th transaction, Gomez supplied the cocaine for sale to Greco and remained upstairs.
After a two month interlude, the final transaction occurred on May 27th. Through Gomez, Greco had found out that Bontkowski thought he was a police officer, so Greco had ceased calling Bontkowski for a while. When Gomez told him that Bontkowski had obtained cocaine, Greco called her again. This time, Bontkowski sold Greco a half-kilogram of cocaine. As the exchange took place, Greco activated a silent transmitter and DEA agents entered the house and arrested Bontkowski. Once again Bontkowski testified that Gomez had supplied her with the cocaine which she sold to Greco, this time leaving it in the bushes outside her house.
After a jury trial, Bontkowski was found guilty of three counts (Counts II, III, and IV) of distribution of cocaine, each in violation of 21 U.S.C. § 841(a)(1), and one count (Count V) of attempted distribution of cocaine, in violation of 21 U.S.C. § 846. Bontkowski was sentenced to five years in the custody of the Attorney General on Counts II, III, IV, and V, to be followed by a six year period of supervised release. Pursuant to 18 U.S.C. § 3013, Bontkowski was also assessed a sum of $100.00 each on Counts II through V, for a total assessment of $400.00.
Bontkowski's first contention on appeal is that the district court erred as a matter of law in refusing to submit the issue of outrageous governmental conduct to the jury. Her argument has no merit. We have held that it is for the trial court, not the jury, to decide whether government conduct is so outrageous that due process bars the use of the judicial system to obtain a conviction. United States v. Valona, 834 F.2d 1334, 1343 (7th Cir. 1987); United States v. Shoffner, 826 F.2d 619, 626 n.9 (7th Cir. 1987); United States v. Swiatek, 819 F.2d 721, 726 (7th Cir. 1987). Foreseeing this, Bontkowski also asked us to review de novo the district court's conclusion that the government did not engage in outrageous conduct.
As an initial matter, we note that there is some doubt as to the validity of the outrageous-governmental-conduct doctrine. The doctrine stems from a statement in United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1978), in which the Court noted that it might "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 Valona, 834 F.2d at 1343 (quoting Russell, 411 U.S. at 431-32). The import of this statement is not certain, given the holding of the three-justice plurality in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). The Hampton plurality held that "the remedy of the criminal defendant with respect to acts of government agents, which far from being resisted, are encouraged by him, lies solely in the defense of entrapment." Id. at 490. See also United States v. Williams, 858 F.2d 1218, 1225 (7th Cir. 1988) (quoting Hampton, 425 U.S. at 490).
Whatever the current status of this doctrine,
an examination of the post-Hampton cases decided by courts of appeals indicates that due process grants wide leeway to law enforcement agencies in their investigation of crime. Assuming that no independent constitutional right has been violated, governmental conduct must be truly outrageous before due process will prevent conviction of a defendant.
United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir. 1983). On appeal, Bontkowski has not even designated the conduct which she alleges is outrageous. We assume that she is unhappy because Gomez supplied her with the cocaine which she sold to Greco. The government did not supply the cocaine, nor is there any evidence that the government knew that Gomez was supplying the cocaine. (In her conversations with Greco, Bontkowski referred to three different suppliers--a Greek, a Latin, and her ex-husband.) We have found that much more serious allegations do not constitute outrageous conduct. For example, even where the government pre-targets a defendant, furnishes a sample, and provides a contingent fee for the informant, such conduct does "not ...