Filed: Mar. 13, 2013
Latest Update: Mar. 28, 2017
Summary: particularly to determine the drug quantity attributable to Mills.OxyContin money.144 F.3d at 106. And, Mills' acts on or around September 11 e.g., his crossing the, border with 109 oxycodone pills in his alimentary canal pretty, much mirrored the drug smuggling routine that the CIs had, described.
United States Court of Appeals
For the First Circuit
No. 11-1249
UNITED STATES,
Appellee,
v.
JAMES MILLS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin* and Thompson, Circuit Judges.
Richard L. Hartley, with whom Law Office of Richard Hartley
was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
March 13, 2013
*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists issue
this opinion pursuant to 28 U.S.C. § 46(d).
THOMPSON, Circuit Judge. Based on tips from three
confidential informants -- we refer to them collectively as CIs,
and individually as CI-1, CI-2, and CI-3 -- federal agents in Maine
suspected that James Mills had been smuggling oxycodone into the
United States from Canada for some time, occasionally hiding the
pills in condoms inserted into his rectum. Armed with this and
other information, agents nabbed a suspiciously-acting Mills at the
border on a return trip from Canada. One thing led to another and
agents ended up handcuffing him to a hospital bed to monitor his
impending bowel movement. Eventually he passed a condom that
contained 104 80-milligram and 5 40-milligram oxycodone pills.
Mills later pled guilty to one count of importing
oxycodone. See 21 U.S.C. § 952(a). At sentencing, the district
court assigned him a drug quantity equivalent to 2,637 80-milligram
oxycodone pills based in part on uncharged conduct described by the
CIs, see U.S.S.G. § 1B1.3(a)(2), after having earlier denied his
motion to force the government to disclose the CIs' names. Relying
on this increased drug quantity rather than simply the 109 pills
found in the condom, the court sentenced Mills to 108 months in
prison, a sentence increase of seven years, Mills complains.
Mills now appeals, arguing that the court erred in
denying his disclosure motion and in calculating the drug quantity.
Having carefully considered his claims, we find no error and
affirm.
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BACKGROUND
A. The Events Surrounding Mills' Arrest
At approximately 6:45 p.m. on September 11, 2009, Mills
entered the Lubec, Maine Port of Entry to the U.S. from Campobello
Island, Canada. Tipped off by a confidential informant, law
enforcement officers were awaiting Mills' arrival at the border.
Upon his entry, Mills was directed for secondary inspection where
Customs and Border Protection (CBP) and Immigration and Customs
Enforcement (ICE) officers noticed he was acting nervous, avoiding
eye contact, and breathing erratically. The officers asked Mills
where he had been earlier; he responded he was on Campobello Island
all day, but later changed his story after store receipts from St.
John, New Brunswick were found in his vehicle. When the agents
questioned him, Mills denied carrying pills, and a pat down and
partial body search revealed none. After he refused to consent to
an x-ray of his body, the agents took Mills to Calais Regional
Hospital for a monitored bowel movement. Mills was handcuffed to
a hospital bed and told he would stay handcuffed until he had to
use the bathroom. Meanwhile, ICE officers sought a warrant and
court order to conduct an x-ray and body cavity search.
The following morning at approximately 8:06 a.m., Mills
agreed to an x-ray and the results indicated he had a foreign
object in his alimentary canal. The ICE officers told Mills about
the x-ray results and he agreed to pass the object; at
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approximately 8:59 a.m. Mills passed a condom that contained 104
80-milligram pills and 5 40-milligram pills. CBP officers
processed the package as evidence and found the pills in Mills'
possession totaled 8.5 grams of Canadian-manufactured OxyContin, a
brand of the prescription drug oxycodone.1 A federal grand jury
returned a one-count indictment charging Mills with knowingly and
intentionally importing oxycodone into the U.S. on September 11,
2009, in violation of 21 U.S.C. § 952(a), and on January 7, 2010,
he plead guilty as charged without a plea agreement.
B. The Recommended Sentence and Accompanying Evidence
At the sentencing stage, the only real issue concerned
the proper quantity of oxycodone for which Mills was to be held
responsible. Consequently, we relate only what is necessary to
place that issue into proper perspective.
Using the then-current edition of the federal sentencing
guidelines, the probation office prepared a pre-sentence report
(PSR) that attributed to Mills not only the 8.5 grams of oxycodone
he possessed when arrested but also an additional 295.4 grams of
oxycodone under the guidelines' relevant conduct provision. See
United States v. Marquez, 699 F.3d 556, 558 (1st Cir. 2012)
(explaining that "a defendant is responsible not only for the
wrongdoing to which he pled or of which he was convicted, but also
1
The pills were marked with "CDN," indicating the oxycodone
was of Canadian manufacture.
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for 'all acts and omissions . . . that were part of the same course
of conduct or common scheme or plan as the offense of conviction'")
(alteration in original) (quoting U.S.S.G. § 1B1.3(a)(2)). Here is
how probation reached that number:
Documents offered by the government showed that Mills
crossed the border from Canada into Maine 231 times between January
and September 2009. They also showed that Mills converted $369,203
of U.S. currency into Canadian currency between May 2008 and
September 2009. For each transaction Mills had to disclose where
the cash had come from. And he claimed that the funds were payment
for his work as a sea urchin diver and carpenter, for example. But
the amounts he exchanged were significantly greater and
inconsistent with the "legitimate" earnings he reported to
probation. Also, Mills had given the names of two people who had
supposedly provided him with money on the up and up, and both of
them denied ever doing so, probation noted. Critically, once Mills
learned about the currency exchange records, he changed his story,
saying in a recorded jailhouse conversation with his girlfriend
that he had been exchanging the cash for someone else and getting
free drugs for his trouble. Critically too, one CI reported that
Mills routinely smuggled 100 pills at a time into the U.S. in his
rectum, and another said pretty much the thing.
Using the street value of oxycodone, $100 a pill, and the
$369,203 in currency exchanges, probation then calculated Mills had
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smuggled at least 3,692 80-milligram oxycodone pills or 295.4 grams
of actual oxycodone prior to his arrest. See id. at 561 (noting
that "[e]xtrapolation is a common and permissible way of
attributing drugs to a defendant"). The sentencing guidelines
provide a formula for converting drugs into equivalent units of
marijuana for sentencing purposes: 1 gram of oxycodone is
equivalent to 6,700 grams of marijuana. See U.S.S.G. § 2D1.1 cmt.
n.10(E) (since recodified as cmt. n.8(D)). So 295.4 grams of
oxycodone amounted to 1,979 kilograms of marijuana equivalent,
which, when combined with the 8.5 grams of oxycodone Mills smuggled
on September 11, brought his marijuana equivalent to 2,036
kilograms. The base offense level for at least 1,000 kilograms but
less than 3,000 kilograms of marijuana is 32. See U.S.S.G.
§ 2D1.1(c)(4). Probation suggested a 3-level decrease for
acceptance of responsibility, see U.S.S.G. § 3E1.1, and another 2-
level decrease if he satisfied the test for "safety valve" relief,
see U.S.S.G. § 5C1.2 -- to be eligible a defendant, among other
things, must by the time of sentencing truthfully provide "the
[g]overnment all information and evidence [he] has concerning the
offense or offenses that were part of the same course of conduct,"
id. § 5C1.2(a)(5). That would give him a total offense level of
27, which, when paired with his criminal history category of I,
would yield a sentencing range of 70 to 87 months in prison.
-6-
The government also asked the court to hold Mills
responsible for 295.4 grams of oxycodone under the relevant conduct
rubric, using the same math as probation. To avoid double
counting, the government's drug-quantity estimate did not include
the oxycodone seized from him on September 11. The government
presented six exhibits to back up its argument. Exhibit 1 was a
summary spreadsheet of records obtained from the Royal Canadian
Mounted Police (RCMP) documenting Mills' 108 currency exchanges
involving a total of $369,203, which he made during the 16 months
before his arrest. The last documented transaction in the currency
exchange records was only two days before his capture, and he made
other cash exchanges on September 2, 4, and 7. Exhibit 6 was a
compilation of records that supported Exhibit 1.
Exhibit 2 was the ICE report of CI-1, who reported seeing
Mills with between 50 and 100 oxycodone tablets at least once a
week between spring 2006 and spring 2007. CI-1 stated Mills would
go to St. Andrews, New Brunswick, Canada to purchase the pills and
then smuggle them into the U.S. for sale (other evidence showed) in
Washington County, Maine.
Exhibit 3 was a report from the RCMP summarizing the
statements of CI-2. CI-2 said Mills would first collect money from
prospective U.S. buyers, convert that money from U.S. currency to
Canadian currency, acquire pills from his supplier, and then return
to Maine by crossing at the Lubec Port of Entry. According to
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CI-2, Mills would smuggle about 100 pills at a time into the U.S.
internally, via his rectum.
Exhibit 4 was an ICE report regarding an investigation
that began in September 2008, after an undercover agent of the
Maine Drug Enforcement Agency purchased OxyContin from CI-3. CI-3,
an admitted oxycodone addict, named Mills as his or her supplier.
According to CI-3, Mills would get money from his clients prior to
purchasing the pills in Canada, and would then smuggle the pills by
taping them to his groin area or having his girlfriend smuggle them
internally. CI-3 further stated Mills would bring the pills into
the U.S. by making two trips each week with 100 to 200 pills per
trip. Exhibit 5 was the proffer report of CI-3, which reiterated
many of the statements CI-3 made in Exhibit 4. In this proffer,
CI-3 noted the pills Mills smuggled were Canadian brand OxyContin
because they were labeled "CDN." CI-3 also said 80-milligram
oxycodone pills sold for $80 to $100 a piece.
Wrapping up, the government stressed how consistent the
CIs' accounts were with each other on the modus operandi of Mills'
criminal endeavors and how the currency exchange records
corroborated all this by showing his access to a large pool of
money to fund his drug-buying sprees. Also, the government
emphasized how Mills' employment records showed he had no
legitimate means of obtaining the amounts of cash he was
exchanging, noting in particular the statements of two persons whom
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Mills said had given him money lawfully, who denied any such
transaction.
Mills' sentencing memorandum argued the appropriate drug
quantity was the 8.5 grams of oxycodone he was caught with. And he
blasted the government for relying on the untested assertions of
CIs in coming up with its proposed drug quantity calculation.
C. The Identities of the CIs
At a pre-sentencing conference in July 2010, Mills'
lawyer contested the use of the CIs' statements and the financial
records as evidence of drug smuggling. Specifically, counsel
explained his concern about the veracity of the CIs, since the
government was offering their statements in support of a drug
quantity that increased the amount attributable to him almost 50-
fold. To bolster his argument, counsel cited a recorded jailhouse
telephone conversation between Mills and his girlfriend in which
they discussed how the currency exchanges were part of a money
laundering scheme, and not, as the CIs' statements suggested, part
of his drug trafficking. Counsel maintained this conversation
called into question the reliability of the CIs' statements,
particularly to determine the drug quantity attributable to Mills.
Expressing concern about the court's reliance on the CIs'
unrebutted claims, counsel requested disclosure of their identities
in order to speak with them and potentially bring them into court.
-9-
The court stated its surprise that Mills could not
determine the CIs' identities based on what had already been
revealed and the presumably limited number of people involved in
dealing OxyContin in Washington County, Maine. In response to
Mills' argument for disclosure, the government noted two troubling
incidents. First, a woman attempting to enter the U.S. from Canada
had a letter from Mills on her that included pages from his PSR.
Mills' letter stated the government was trying to prove additional
drug quantity against him but would have trouble doing so without
someone testifying against him. Second, after the government filed
its sentencing memo, one of the CIs contacted ICE to report that
copies of the redacted CI reports filed with the court had been
published on the Facebook page of Mills and his longtime
girlfriend, Jennifer Smart. The government noted that the lawyer
for another of the CIs made the same complaint and that the CIs
were afraid. Arguing they had an obligation to protect the
informants and their identities, the government asserted that the
potential for Mills to post the CIs' identities on Facebook raised
significant safety concerns.
Even though the government later handed over impeaching
material on the CIs, Mills moved for disclosure of their
identities. Citing to Brady v. Maryland, 373 U.S. 83 (1963), he
asserted he was faced with CIs making statements against him, which
if adopted by the court could be "material to his punishment."
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Brady held, "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment." Id. at 87.
Mills argued the "identity of these informants, then is itself
evidence 'favorable to the accused' where it will allow [him] to
challenge and to test these assertions," which he insisted were
false.
In the conference of counsel the next day, Mills' lawyer
explained disclosure was necessary for the defense to determine the
accuracy of the drug quantity the government attributed to him. He
argued the large amounts of money represented in the currency
exchange records were attributable to his money laundering for
someone in Canada, so to the extent the court was relying on the
CIs' statements to determine the source of that money, the veracity
of the statements would be important for the court. The court
again noted its disbelief that Mills could not determine the
identities of the CIs himself, based on the descriptions of their
statements, and Mills' lawyer countered his client would only know
who the CIs were if the statements they made were true. The
government again discussed how the CIs' statements were consistent
with one another and with the currency exchange records and how
Mills' posting of CI information on Facebook put them at great
risk. And the court warned Mills he was running the risk of not
getting any adjustment for acceptance of responsibility as it
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seemed what he truly wanted was the CIs' identities in order to
declare them snitches to his compatriots, and have retribution
taken against them.
Ultimately, the court denied the motion. The court found
the CIs' statements were corroborated by other reliable evidence.
Comparing Mills' need for access to the CIs with the physical
danger to them, and with the danger of compromising other
government investigations, as required under United States v.
Tzannos, 460 F.3d 128, 139 (1st Cir. 2006), the court stressed
Mills had given "no concrete reason to override the [g]overnment's
interest in keeping [their] identities" under wraps. And as for
Brady, the court found that case distinguishable from Mills': Mills
sought disclosure at sentencing, not during trial, and Mills "made
no showing that disclosure of the CIs' identities would be either
material or favorable."
At the next conference of counsel, Mills' lawyer said his
client would not seek safety valve relief. He also said Mills had
hired a private investigator to determine the CIs' identities.
And, he added, he intended to have the investigator testify at the
upcoming sentencing hearing so that the court could hear what the
investigator learned after talking with some suspected CIs. The
court said that was okay and then ticked off the evidence that it
already had: (a) Mills' admission that September 11, 2009 was not
his first time smuggling OxyContin into the U.S.; (b) documents
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showing "enormous amounts of cash, in excess of $300,000," that
Mills had converted from U.S. to Canadian dollars; and (c) evidence
showing that Mills' legitimate sources of income "don't begin to
generate the kind of money" he had exchanged. Adding everything
together, the court suggested it mattered not what the CIs might
say. "[T]he fact that confidential informants say what I think I
can infer anyway," the court stressed, "is icing on the cake."
D. The Sentencing Hearing
Mills' sentencing hearing went forward with the
identities of the CIs still secret. Conceding September 11, 2009
was not his client's first time smuggling oxycodone into the U.S.,
Mills' lawyer focused on the currency exchange records and argued
the bulk of the money had come from an illegal source, but not from
Mills' drug smuggling. Mills' private investigator explained in
testimony at the hearing how Mills had hooked up with a Canadian
marijuana dealer who sometimes got paid in U.S. currency and how
the dealer would pay Mills in Oxycontin if he (Mills) converted
that cash into Canadian currency -- at least that is what Mills'
investigator claimed Mills had told him. That story squared with
the recorded jailhouse telephone call between Mills and his
girlfriend in which they talked about how the currency exchanges
were part of a money laundering venture, Mills' investigator added.
And he also testified that he questioned possible CIs, all of whom
denied providing any information to law enforcement about Mills'
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drug trafficking, and that he was unable to find anyone who
admitted providing information about Mills to the authorities.
Cross-examined by the government, Mills' investigator
noted that when he asked Mills to reveal the marijuana dealer's
name, Mills said, "I'd rather not disclose that." Ultimately, the
government argued nothing in the investigator's testimony
necessarily undermined the evidence as to drug quantity. "[T]here
is no weed dealer," the government insisted. "This is all
OxyContin money." So the government urged the court to rely on
Mills' admission concerning his prior smuggling and the CIs'
statements describing his drug dealing history. Recognizing some
differences in the CIs' stories, the government explained it was
not asking the court to adopt the specific drug quantities cited in
the CIs' statements, but instead to use the border patrol and
currency exchange records to determine the total drug quantity.
After considering the evidence and hearing counsel's
arguments, the court made a number of critical findings. For
openers, the court found that Mills had crossed the border from
Canada into Maine 231 times in the 8 months before his arrest.
Also, the court found that the CIs' accounts fit together nicely on
a number of fronts: e.g., that Mills had been smuggling OxyContin
for a long time; that he would first get money from U.S. customers
and then head to Canada to buy pills to smuggle back to Maine,
often hiding the pills in his rectum; and that he would sneak in
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about 100 pills or so each time. "All of that," the court found,
was "remarkably consistent with what we know happened on September
11, 2009." On top of that, the court found that the frequency and
amount of Mills' currency exchanges suggest the $369,203 was tied
to his drug dealings.
Taking up Mills' claim that the currency exchange report
reflected other sources of money besides his oxycodone trafficking,
the court rejected his uncorroborated explanations. "I do not
believe the story about the major marijuana dealer using [Mills] to
convert currency," the court said. "I just don't believe it,"
particularly since Mills had refused to give up the dealer's name,
leaving no way to verify his claim. "We don't know the CIs' names,
the court noted, but "we know what [they] have said" and so "we can
compare them." As for Mills' theory that some of the currency was
payment for his work as a sea urchin diver and carpenter, the court
found no proof of that, since Mills had failed to file income taxes
with the federal government and his alleged employers denied paying
him any cash.
Applying the correct version of the guidelines (the
parties do not say otherwise), the court then took the $369,203 and
Mills' preferred $140 per-pill value and arrived at a drug quantity
of 1,374.4 kilograms of marijuana equivalent. The court's math was
off just a bit, though. $369,203 divided by $140 equals 2,637.16
pills, which, at 80-milligrams each, produces 210.97 grams of
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oxycodone. Multiplying 210.97 grams by 6,700 yields a marijuana
equivalent of 1,413.52 kilograms, not 1,374.4 kilograms. But that
mistake makes no difference to Mills, given that both numbers fall
within the 1,000 to 3,000 kilograms range, which put him in base
offense level 32 regardless. See U.S.S.G. § 2D1.1(c)(4). Next,
the court granted Mills a 3-level acceptance of responsibility
reduction. With no safety valve adjustment, Mills' total offense
level was 29. That offense level, combined with his criminal
history category of I, resulted in a sentencing range of 87 to 108
months. And after working its way through the factors listed in 18
U.S.C. § 3553(a), the court imposed a top-of-the-range prison
sentence of 108 months.
DISCUSSION
Training his sights on the CIs, Mills attacks his
sentence on two fronts. First, he faults the court for denying his
motion for disclosure, arguing that he needed to know the CIs'
identities so that he could defend against the government's
sentencing arguments. Second, he criticizes the court for
attributing to him a drug quantity beyond the amount involved in
the charged offense, contending that if the court had required
disclosure of the CIs' names, he could have shown that what they
had said was too unreliable for calculating relevant conduct under
the sentencing guidelines. Neither persuades.
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A. Disclosure of the CIS' Identities
Police use confidential informants all the time,
particularly in the murky world of drug dealings. See United
States v. Perez, 299 F.3d 1, 2-3 (1st Cir. 2002). But snitching is
dangerous work, and informants literally put their lives on the
line by doing what they do. See id. at 3. With so much at stake,
confidentiality is key. See id. And that is where the "tattler's
privilege" comes in -- that is, the government's privilege to keep
secret the names of persons who give law enforcement information
about crimes. United States v. Robinson,
144 F.3d 104, 106 (1st
Cir. 1998) (discussing Roviaro v. United States,
353 U.S. 53
(1957)).
But important as that privilege is, it is not absolute;
where the disclosure of an informant's identity is "relevant and
helpful to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way." Roviaro,
353 U.S. at 60-61. One should not go overboard when reading that
quote, however. The high Court could not have meant "that the
privilege covers only irrelevant and unhelpful" or nonessential
"evidence." See United States v. Gaston, 357 F.3d 77, 84 (D.C.
Cir. 2004) (explaining why that must be so).
A disclosure inquiry is case-specific -- there is no
"mechanical solution[]." Perez, 299 F.3d at 4. Starting with a
presumption in favor of confidentiality, see Robinson, 144 F.3d at
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106, a trial court must "balanc[e] the accused's right to prepare
and present his defense against the public interest in acquiring
needed information and the informant's stake in confidentiality,"
Perez, 299 F.3d at 4. Other factors that typically go into the mix
include "the nature of the crime charged, the contours of the
defenses asserted, the available means of proving the charges and
defenses, and the significance of the informant's role." Robinson,
144 F.3d at 106.
The burden is squarely on the defendant to show that
disclosure is essential for an adequate defense -- and it is a
"heavy" one; it is not met by speculating about how useful an
informant's testimony might be, for example. United States v.
Cartagena, 593 F.3d 104, 113 (1st Cir. 2010) (quoting United States
v. Lewis,
40 F.3d 1325, 1335 (1st Cir. 1994)). But heavy is not
code for impossible. See Robinson, 144 F.3d at 106. Suppose the
informant is the only person other than the defendant who has
firsthand knowledge of the acts underlying the crime charged. Or
suppose the informant is the only one able to amplify or contradict
the testimony of a government witness. Either situation may
justify disclosure, we have said. Id. (relying on Roviaro).
Simplifying things somewhat, Mills has not shown how his case fits
one of these scenarios. Or any other equally compelling scenario,
as we shall see after applying abuse of discretion review. See id.
(stressing how that standard "is quite deferential: the district
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court's resolution of a disclosure request should be upheld as long
as it comports with some reasonable rendition of the record").
A moment ago we noted that Mills says that knowing the
CIs' names was necessary for the court's calculation of his drug
quantity. The problem for him is that he does not tell us why this
is so. Obviously, a defendant must spell out how an informer's
testimony would help whatever defense theory he pins his hopes on.
See United States v. Martinez, 922 F.2d 914, 921 (1st Cir. 1991).
Mills' story seemed to change like the weather. But the one he ran
with at sentencing suggested that the cash reflected in the all-
important currency exchange records came either from a money
laundering conspiracy involving a major-league Canadian marijuana
dealer or from his work as a sea urchin diver and carpenter -- or
perhaps both. Yet, devastating to his position, he whispers not
even a hint that the CIs could have shed any light on this late-
emerging defense. See id. (putting the onus on defendants "to
provide at least some explanation of how the informant's testimony
would have supported their alleged defenses").
The "heart" of the court's drug quantity analysis is the
CIs' statements, Mills protests a little later in his brief. Not
so. Even a quick review of the record shows that what principally
drove the court's decision were (a) the 108 currency exchanges
totaling $369,203 that Mills had made during the 16-month stretch
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before his arrest and (b) his requested $140 per-pill price.2
Other considerations that factored into the court's calculus
included (c) Mills' agreeing that this was not the only time that
he had smuggled oxycodone into the U.S.; (d) his having entered the
U.S. from Canada 231 times in the 9-month period before his
capture; (e) his offering no evidence that he had been legitimately
employed when it mattered; and (f) his marijuana dealer tale
holding no sway with the court. For simplicity we refer to all
this as the "(a)-(f) factors." As for the CIs, true, their
accounts about Mills' drug smuggling differed a bit. But they were
remarkably in sync on the duration, method, and volume of his
misadventures, and their accounts were perfectly consistent both
with what had gone down on September 11 and with the full $369,203
being tied to his drug dealing ways -- as the court supportably
found. Anyway, and as the court also credibly found, one could
reasonably work out the drug quantity numbers using the (a)-(f)
factors, without touching the CIs' narratives -- meaning their
statements were merely "icing on the cake," as the court colorfully
put it. In other words, the CIs' comments played a peripheral
rather than a starring role in the court's drug quantity analysis,
2
Remember how CI-1 said he had seen Mills with 50-100 pills
every week for a year, which, using the higher number, works out to
52,000 pills -- the court did not use that figure, or the figures
offered by the other CIs. Instead the court opted to divide
$369,203 by $140 to get 2,637 pills -- a much smaller number than
if it had used CI-1's figures, for example.
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which also counts against Mills in the disclosure balancing. See
Robinson, 144 F.3d at 107.
Again, on the other side of the scale is the public
interest in encouraging needed information and the informants'
private interest in their safety. See Tzannos, 460 F.3d at 139.
And here the record supports the court's finding that revealing the
CIs' identities posed an obvious risk to their safety. Recall the
prior publication of the CIs' reports on Mills and Smart's Facebook
page. Recall too the veiled threat Mills sent in a letter along
with copies of his PSR. The "feds" wanted to hold him culpable for
additional drug quantity, he wrote, but "[t]hey will have a hard
time" doing that "without someone testifying against me."
The short of it is that the court did its job under the
Roviaro line of cases, weighing the right factors, and it
defensibly found that -- given Mills' weak showing on one side, and
the government's interest in preserving the CIs' anonymity on the
other -- the scale tipped decidedly against disclosure.
Consequently, we see nothing remotely resembling an abuse of
discretion in the court's decision to deny Mills' disclosure
motion.
B. Calculation of the Drug Quantity Attributable to Mills
Mills' second argument is a slight variation on the one
we just rejected. It goes something like this: The court, he says
again, should have compelled the government to disclose the CIs'
names. Because the court did not, he quickly adds, it did not get
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to see for itself how unreliable they were for the relevant-conduct
calculation. Yet, he concludes, the CIs were unreliable, and
taking them out of the equation means that the amount of oxycodone
attributed to him should have been limited to what was in his
possession at his arrest.
The law in this area is straightforward. A sentencing
court can make reasonable estimates of drug quantities, provided
they are supported by a preponderance of the evidence, and we
review those findings deferentially, reversing only for clear
error. See United States v. Bernier, 660 F.3d 543, 545-46 (1st
Cir. 2011). Also, the court can consider all kinds of relevant
information regardless of admissibility at trial (including hearsay
that has never been tested by cross-examination), provided it has
"sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3(a); United States v. Cintrón-
Echautegui,
604 F.3d 1, 6 (1st Cir. 2010); United States v.
Brewster,
127 F.3d 22, 27-28 (1st Cir. 1997). Last but not least,
the court has considerable leeway in deciding whether particular
evidence is reliable enough for sentencing purposes, and we review
only for abuse of discretion. See Cintrón-Echautegui, 604 F.3d at
6; United States v. Green,
426 F.3d 64, 66 (1st Cir. 2005).
With these background rules in mind, we can make quick
work of Mills' argument. For one thing, the court acted well
within its discretion in denying Mills' disclosure motion, as we
just saw. For another, the CIs' statements regarding Mills' modus
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operandi were detailed, mutually corroborative on key points, and
compatible with the events surrounding his arrest3 -- and were
therefore sufficiently reliable. See Green, 426 F.3d at 67
(concluding that statements of confidential informants that were
sufficiently detailed, internally consistent, mutually
corroborative, and compatible with other information presented were
sufficiently reliable); see also United States v. Ventura, 353 F.3d
84, 88 (1st Cir. 2003) (similar). On top of all this, the (a)-(f)
factors arrayed above gave the court more than enough to make a
reasonable drug quantity estimate.4 See United States v. Hall,
434
F.3d 42, 61-62 (1st Cir. 2006) (holding that the court did not err
in using the defendant's total drug profits as a basis for
3
As a memory refresher for the reader, we again point out the
commonalities the court supportably found among the CIs' accounts:
Mills had been smuggling OxyContin for an extended time, at least
since 2007; and he would collect cash from U.S. customers, exchange
the money in Canada, buy pills there, and smuggle 100 or so pills
back across the border by concealing them on or in his body. And
Mills' acts on or around September 11 -- e.g., his crossing the
border with 109 oxycodone pills in his alimentary canal -- pretty
much mirrored the drug smuggling routine that the CIs had
described.
4
Mills talks a lot about how he could have shown the CIs'
unreliability if only he had had the chance to ask them questions
like these: "How does he [CI-1] arrive at an estimate of 50-100
pills? Does this same estimate apply for each time?"; "How can he
[CI-2] possibly estimate the number of pills that Mills had"; "Upon
what does he [CI-3] base his specific claims of the number of pills
Mills was moving across the border? If it was two trips a week at
up to 200 pills, then how can it have been up to 500 pills? For
how many weeks was it 500 pills?" But contrary to Mills'
intimations, the court did not need answers to any of this: it
suffices to say that the (a)-(f) factors gave the court an adequate
way to calculate drug quantity, regardless of how the CIs
responded.
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estimating drug quantity under the relevant conduct guideline).
Ultimately, then, we see no clear error or abuse of discretion
here.
CONCLUSION
Having found no basis for disturbing the sentence imposed
by the district court, we affirm.
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