In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3629

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARIUS JEFFERSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-30177-DRH--David R. Herndon, Judge.

ARGUED March 1, 2001--DECIDED June 6, 2001



  Before HARLINGTON WOOD, JR., MANION, and
DIANE P. WOOD, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge.
Defendant-appellant Darius Jefferson was
convicted following a jury trial of five
counts relating to the distribution of
cocaine base, also known as "crack"
cocaine, including conspiracy to
distribute cocaine base (Count 1),
maintaining a place for the purpose of
distributing cocaine base (Count 2),
possession with intent to distribute
cocaine base (Count 3), possession of a
firearm during and in relation to a drug
trafficking offense (Count 4), and being
a felon in possession of a firearm (Count
6). On appeal, Jefferson challenges the
district court’s denial of his motion for
disclosure and production of a
confidential informant, the sufficiency
of the evidence, and his sentence.

I.   BACKGROUND

  On June 28, 1999, a special agent with
the Drug Enforcement Administration
("DEA") applied for and was issued a
search warrant for a residence located at
748 North 55th Street, East St. Louis,
Illinois. The application for the search
warrant relied in part on statements by a
confidential informant who had made three
drug buys from the location within a ten-
day period just prior to the date of the
application. When the warrant was
executed, Jefferson was found in the
bathroom of the residence. Finley McCoy,
Jr. was found running away from the
living room of the residence. Another
individual was found in the bedroom.
During the search of the residence,
police discovered 3.6 grams of crack
cocaine as well as a loaded shotgun and
two loaded revolvers in the living room.
Another loaded shotgun was found in the
bedroom. While searching Jefferson’s
pants pockets, agents discovered
approximately 1.8 grams of crack cocaine
packaged for resale and $77. Other items
connected with drug trafficking,
including a digital scale and numerous
plastic baggies, were found lying around
the house.

  While the search warrant was being
executed, McCoy gave the agents consent
to search a car that was parked in the
driveway of the house. During their
subsequent search of the vehicle, agents
discovered approximately 4.6 grams of
powder cocaine and 18.6 grams of crack
cocaine. Following the search, Jefferson
was taken into custody. The agents
advised him of his Miranda rights and
then interviewed him. Jefferson signed a
written statement, admitting he had been
going to the house on 55th Street since
May 1999 and had been selling $20 rocks
of crack cocaine from the house for
approximately one week. Jefferson stated
that McCoy supplied the crack and that
the guns which were seized had been used
for "protection."

  On July 21, 1999, a federal grand jury
returned a six-count indictment charging
Jefferson and McCoy for conduct relating
to the distribution of crack cocaine.
Jefferson was charged in five of the six
counts. On October 6, 1999, Jefferson
filed a motion seeking the disclosure and
production of the government’s
confidential informant. The government
filed a response to Jefferson’s motion on
October 7. The district judge held a
hearing on the motion that same day and
ruled on the substantive issues involved
in the motion despite his belief that the
motion was untimely because it was filed
less than one week before trial was
scheduled to begin and after the period
set for pretrial discovery motions had
expired. The judge denied the motion,
stating Jefferson had failed to show that
the confidential informant would be
either relevant or helpful as a witness
and, as a result, the disclosure was
"certainly not essential to a fair
determination of th[e] case."

  McCoy pleaded guilty pursuant to a plea
agreement and testified as a government
witness at Jefferson’s trial. Jefferson’s
jury trial began on October 13, 1999.
During the trial, McCoy testified that
he, Jefferson, and two other men
contributed to pay the rent for the 55th
Street house which they used as a drug
house. McCoy stated that Jefferson had
been selling drugs from the house since
May 1999 and that he had seen Jefferson
sell approximately three ounces of crack
cocaine in small quantities ranging in
value from $20 to $50. McCoy’s trial
testimony was consistent with statements
he made at the time of his arrest.
However, following his first appearance,
while he was being housed in the St.
Clair County Jail, McCoy wrote a letter
to Magistrate Judge Proud who had
conducted his first appearance. In the
letter, McCoy informed the judge that he
had made a false statement when he
implicated others in the drug dealing.
McCoy stated that he was the only one
selling drugs out of the 55th Street
house and he had lied about the other
individuals’ involvement because he was
scared. However, McCoy wrote, he now
realized his untruths had caused
"heartache" to many people. The letter
went on to state that Jefferson was "just
visiting" the house at the time the
warrant was executed and that McCoy knew
that Jefferson did not sell drugs. At
trial, McCoy testified the letter was a
lie and he had written it with the help
of Jefferson, who was his cellmate at the
time. McCoy explained he had written the
letter because Jefferson and another
individual involved in the drug dealing
had informed him that if McCoy took full
responsibility for the drug dealing the
government would be forced to drop the
conspiracy charges. McCoy testified that,
after consulting with his attorney, he
realized writing the letter was not the
correct thing to do, so he then contacted
the United States Attorney’s Office and
told them the truth about the matter.

  On October 15, the jury returned guilty
verdicts against Jefferson on all five
counts charged. At sentencing, the
district court determined that Jefferson
had a base offense level of 32 under
U.S.S.G. sec. 2D1.1. The judge then
increased Jefferson’s offense level by
two for obstruction of justice under
U.S.S.G. sec. 3C1.1, which resulted in a
total offense level of 34. Jefferson had
a criminal history category of II. The
district judge sentenced Jefferson to 270
months imprisonment followed by five
years supervised release. Specifically,
Jefferson was sentenced to 210 months
imprisonment for Counts 1, 2, and 3, a
consecutive term of 60 months on Count 4,
and a concurrent term of 120 months on
Count 6. The district judge also imposed
a fine of $5,000 and a special assessment
of $500. Jefferson filed this timely
appeal.

II.   ANALYSIS

  A. Disclosure and Production of the
Confidential Informant

  Jefferson contends the district court
erred in denying his motion for
disclosure and production of the
confidential informant, arguing that the
informant’s testimony would have
supported his assertion that he was
merely a customer at the residence at the
time the warrant was executed. We review
a district court’s denial of a motion for
disclosure of the identity of a
confidential informant for abuse of
discretion and will affirm if any
reasonable person could agree with the
district court’s decision. United States
v. Valles, 

, 358 (7th Cir.
1994).

  The government has a limited privilege
to withhold the identity of a
confidential informant from a criminal
defendant. Roviaro v. United States, 

, 60 (1957). As the Supreme Court
has recognized, citizens have an
obligation to communicate their knowledge
of the commission of crimes to law
enforcement officials. 

By
preserving anonymity, this privilege
encourages citizens to perform that
obligation. 

whether to
disclose a confidential informant’s
identity, a court must balance "the
public interest in protecting the flow of
information against the individual’s
right to prepare his defense." 

Therefore, in order to overcome the
limited privilege, a defendant must
establish that the disclosure of the
informant’s identity is either "relevant
and helpful" to his defense or "essential
to a fair determination of a cause." 

  Jefferson points out that the police
reports indicate the informant had been
at the scene just five minutes before the
execution of the search warrant./1
Jefferson contends that the informant
would testify that Jefferson was the
person who opened the door for him when
he visited the residence on June 28 and
that the informant had never seen
Jefferson before that time. Jefferson
also asserts that, based on the three
drug purchases, the confidential
informant "arguably had extensive
knowledge of the activities of those
conducting business in this drug house."
Jefferson believes the fact that the
informant never dealt directly with him
and never saw Jefferson before Jefferson
opened the door of the residence on June
28 completely exonerates him.

  We examined a similar claim in United
States v. Bender, 

(7th Cir.
1993). In Bender, the defendant was
charged with possession of crack cocaine
with intent to distribute after being
found in possession of crack cocaine when
a "no knock" search warrant was executed
at a townhouse. 

The search
warrant in Bender was issued based on the
fact that a confidential informant had
made three purchases of crack cocaine
from the townhouse from individuals other
than the defendant. 

Bender
claimed he did not own the drugs he had
been holding and was in the townhouse for
the first time on a social visit when the
warrant was executed. 

The
panel in Bender affirmed the denial of
Bender’s motion to disclose the identity
of the confidential informant,
characterizing the informant as a
"tipster" rather than a transactional
witness. 

The panel recognized
that the charges against Bender were not
based on criminal activity the informant
had witnessed and, therefore, the
informant’s testimony had "no particular
significance to Bender’s defense." 

The panel further noted that Bender
had available other witnesses who,
because of their closer involvement,
could have "easily and perhaps more
convincingly" corroborated his story. 

  Even assuming the confidential informant
would testify as Jefferson claims he
would, Jefferson has not shown that such
testimony would be particularly
significant to his defense. Unlike the
defendant in Bender, Jefferson’s charges
included charges of conspiracy. However,
the charges against Jefferson were based
on evidence which was obtained when the
search warrant was executed and
statements made by Jefferson and McCoy at
the time of their arrests, not on any
criminal activity the confidential
informant had witnessed. The confidential
informant was a mere "tipster," who
provided law enforcement officials with
information which led to the acquisition
of the search warrant. Although the
informant had been present at the
residence shortly before the warrant was
executed, his role ended at the
conclusion of the third drug buy, and he
was not present when the warrant was
executed and the search was conducted or
when the post-arrest statements were
made. As the panel in Bender recognized,
the public has a strong interest in
protecting the free flow of information
in cases such as these and "not many
people want to become police informants
in light of the violence within the drug
subculture." 

. The
district court did not abuse its
discretion in denying Jefferson’s motion
for disclosure and production of the
confidential informant.


  B. Sufficiency of the Evidence

  Jefferson claims the district court
erred in denying his motion for judgment
of acquittal because the evidence was
insufficient to support a guilty verdict
on any of the charges alleged in the
indictment. In reviewing sufficiency of
the evidence claims, we must view the
evidence in the light most favorable to
the government and will "reverse only if
the record contains no evidence from
which the jury could find guilt beyond a
reasonable doubt." United States v.
Combs, 

, 362 (7th Cir. 2000).
Jefferson first challenges McCoy’s
testimony, characterizing it as "self-
serving and unreliable" and completely
refuted by Jefferson’s own testimony.
Jefferson further asserts that the
evidence is insufficient because he was
not listed as a tenant of the house with
the housing authority, his name was not
on the utilities, and the government did
not produce physical evidence linking him
to the guns and drugs in the house. In
United States v. Williams, 

,
613-14 (7th Cir. 2000), we examined, and
rejected, similar arguments, recognizing
that, absent exceptional circumstances
not alleged in this case, credibility
determinations are within the province of
the jury and will not be disturbed on
appeal. Jefferson had the opportunity to
impeach McCoy with the prior inconsistent
statements contained in the letter to
Judge Proud. McCoy’s testimony, viewed in
the light most favorable to the
government, supports a finding that
Jefferson contributed to the rent and
sold drugs out of the house. In
challenging the sufficiency of the
evidence, Jefferson ignores his own
statement to police at the time he was
arrested that McCoy had been supplying
him with crack cocaine which he
(Jefferson) had been reselling in $20
quantities. Additionally, both Jefferson
and McCoy stated that the guns in the
residence were for "protection."
Jefferson’s challenge to the sufficiency
of the evidence is without merit.


  C.Jefferson’s Sentence

  Jefferson raises two challenges to the
sentence imposed by the district court.
First, Jefferson contends the district
court erred in increasing his offense
level by two levels for obstruction of
justice under U.S.S.G. sec. 3C1.1 based
on a finding that Jefferson committed
perjury when he testified at trial.
Jefferson further asserts that the
district court erred in sentencing him to
the highest possible sentence within the
applicable range. With respect to the
sec. 3C1.1 enhancement, Jefferson argues
that the district court erred in applying
the enhancement without first making
specific findings of perjury. We review
for clear error. United States v.
Webster, 

, 1037 (7th Cir.
1997). An enhancement under sec. 3C1.1 is
appropriate when "[a] witness testifying
under oath or affirmation . . . gives
false testimony concerning a material
matter with the willful intent to provide
false testimony, rather than as a result
of confusion, mistake, or faulty memory."
United States v. Dunnigan, 

,
94 (1993). If a defendant objects to a
sec. 3C1.1 enhancement resulting from his
testimony at trial, the "district court
must review the evidence and make
independent findings necessary to
establish a willful impediment to, or
obstruction of, justice, or an attempt to
do the same, under the perjury
definition" as set forth above. 

"[N]ot every accused who testifies at
trial and is convicted will incur an
enhanced sentence under sec. 3C1.1 for
committing perjury." 

denial
of guilt . . . is not a basis for an
obstruction-of-justice enhancement."
United States v. Godinez, 

,
456 (7th Cir. 1997).

  Jefferson filed a timely objection to
the presentence report’s recommended two-
level enhancement under sec. 3C1.1. At
the sentencing hearing, the district
court, after citing to several portions
of the record in which Jefferson denied
selling crack cocaine, made the following
finding:

  It’s the Court’s finding that in light
of all the testimony in this case that
the denial of selling crack is a complete
and utter falsehood that amounts to
perjury, because quite clearly, as well,
it’s willful. I have no recollection,
make no finding that Mr. Jefferson was at
all confused or had any sort of bad
memory in light of that testimony,
particularly when we think about the
testimony about the statement immediately
after the arrest.

  So, he clearly was willful in his
presenting false testimony to the jury.

Clearly, Jefferson’s contention that the
district court did not find he willfully
intended to provide false testimony
fails. Furthermore, the district court
found that the testimony concerned a
material matter, stating

this type of falsehoods, and in this
particular case, goes directly to issues
of Relevant Conduct, which is central to
his sentence. And I believe that in light
of Mr. Jefferson’s obvious effort to
impact the sentencing in this case, that
the finding of the probation officer on
this issue and the enhancement of two
levels for obstruction of justice is
appropriate.

These findings are sufficient to satisfy
the standards set out in Dunnigan, and
the district court’s two-level
enhancement for obstruction of justice
under sec. 3C1.1 is affirmed.

  We lack jurisdiction to examine
Jefferson’s second sentencing challenge.
Jefferson concedes his sentence was
within the applicable range under the
United States Sentencing Guidelines.
"Absent an error of law or a
misapplication of the guidelines, this
court lacks jurisdiction to review
sentences within the applicable
guidelines range." United States v.
Solis, 

, 551 (7th Cir. 1991).
In the present case, there was no such
error or misapplication.

III.   CONCLUSION

  Jefferson’s conviction and sentence are
AFFIRMED.

FOOTNOTE

/1 There is a discrepancy as to the time line
surrounding the warrant’s execution. The warrant
shows that Magistrate Judge Proud issued the
warrant at 10:51 a.m. on June 28, 1999. However,
the return of the warrant, which was signed and
certified by DEA Agent Christopher Hoyt, shows
that the warrant was executed at 10:40 a.m. on
June 28, eleven minutes before it was issued. At
trial, Agent Hoyt testified that, on the morning
of June 28, he was notified by officers on the
scene that the confidential informant had com-
pleted a third drug buy at the 55th Street house.
Hoyt included this information in the application
for the warrant which he then presented to Judge
Proud. After the judge signed the warrant, Hoyt
phoned officers in the vicinity of the 55th
Street house to let them know the warrant had
been signed and could be executed. On cross-
examination, Hoyt stated he made a mistake when
he recorded the time on the warrant return and
the return should have read 11:40 a.m. instead of
10:40 a.m.