UNITED STATES of America, Plaintiff-Appellee, v. Curtis MILLER, Defendant-Appellant, 891 F.2d 1265

CUDAHY, Circuit Judge. Curtis Miller was charged and convicted in a bench trial on one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C.

section 841(a)(1) and two counts of distributing cocaine in violation of 21 U.S.C.

section 841(a)(1) and 18 U.S.C.

section 2. He now challenges his conviction and sentence on three grounds. First, Miller argues that the government engaged in “outrageous conduct” by employing a drug addict with whom Miller was romantically involved to induce him to sell drugs. Second, Miller asserts that the district judge relied on insufficient evidence to support a Federal Sentencing Guidelines base offense level of 18. Finally, Miller urges us to find that the district court erred in refusing to grant him a two-level reduction in his base offense level for minor participation in the drug transactions.

We affirm the judgment of the district court on each of these claims. I. Miller was arrested in August 1988 in Knox County, Illinois, after making two sales of cocaine to Agent Randy Squire of the Multi-County Narcotic Enforcement Group (“MEG”). The first sale occurred on March 18, 1988, when Squire purchased 3.5 grams of cocaine from Miller for $275. On April 4,1988, Miller sold Squire another 6.9 grams for $500.

While they were discussing the arrangements for the March 18 deal, Miller told Agent Squire that his source required the money for the drugs up front; Miller said everyone was doing it that way and showed Squire his wallet full of cash. Agent Squire testified that during the April 4 transaction, he asked Miller about buying a full ounce (approximately 28 grams) of cocaine; Miller replied that he could procure up to an ounce, with three days notice, because his Florida source “saved” him an ounce every time he visited town.

At their first meeting prior to the March 18 buy, Miller had informed Agent Squire that his source flew into Galesburg about every three weeks. Two to three weeks after the April 4 transaction, Squire and Miller met again to discuss the ounce purchase. That deal was never consummated because, according to Agent Squire, MEG was unwilling to provide the $1400 up-front money that Miller requested, given the fact that the cocaine would not be delivered until ten days later. Squire had no further communication with Miller.

Squire was introduced to Miller by Linda Zefo (a.k.a. “Lin Ford”), who was also present at the March 18 and April 4 transactions. Zefo first met Miller on New Year’s Eve of 1987 and became intimate with him soon after. They had dated for one and a half to two weeks in January 1988 before their relationship ended. In February 1988, Zefo became a confidential informant for MEG. MEG paid her living expenses while it employed her, and she also received $60 for each drug transaction that she arranged for MEG. At trial, Zefo admitted to being a cocaine addict both before and during her employment with MEG.

Agent Squire and Special Agent Dan Bates knew of Zefo’s drug habit, discouraged her from using cocaine, placed her in a drug treatment program and ultimately discontinued her employment when she failed to abandon her drug habit. Both agents testified that they had never personally witnessed her using drugs. On the two occasions when Agent Squire purchased cocaine from Miller, Zefo never had possession of those drugs outside of Squire’s presence, and each time she immediately handed the cocaine to Squire.

In addition to testifying about the two MEG buys, Zefo also told the court that Miller supplied her with small amounts of cocaine (quarter, half and single grams) and that he would sometimes visit her apartment late at night, saying he had been selling similar amounts in local bars. While Miller occasionally spent the night at Zefo’s apartment during the MEG investigation, both he and she testified that they did not resume a sexual relationship. The trial testimony also established a link between Miller’s roommate, Tim Palmer, and cocaine.

Linda Zefo stated that she met Miller through Palmer, with whom she had been friends for fifteen years and from whom she had frequently procured cocaine. When she began working for MEG, she telephoned Palmer to try to set up a buy, but Palmer said he was no longer dealing and she should speak to Miller. She did speak to Miller several times, finally arranging the March 18 transaction.

Palmer, who testified under an oral grant of immunity at Miller’s sentencing hearing, stated that in the two years that the men had lived together he had never seen Miller with quantities larger than quarter, half and single gram amounts. Having heard all the evidence, the district judge found Miller guilty on all three counts.

Miller filed a post-trial motion for a new trial, claiming that the government’s use of Zefo, Miller’s former girlfriend and a known drug abuser, as an informant against him constituted “outrageous conduct.” The district court denied the motion and imposed concurrent prison terms of 32 months for each of the counts. Miller appeals from these rulings. II. Miller urges us to conclude that the government’s employment of Linda Zefo as a paid informant constituted “outrageous conduct” in violation of the due process clause.

The Supreme Court introduced the concept of outrageous governmental conduct and distinguished it from the defense of entrapment in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In that case, the Court found neither entrapment nor outrageous government conduct, but it left open the possibility that “we may 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, 93 S.Ct. at 1643.

In order to preclude prosecution, the government’s conduct must “violat[e] that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” Id. at 432, 93 S.Ct. at 1643 (citing Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303-04, 4 L.Ed.2d 268 (1960)). Following Russell, this circuit has declared that “government conduct must be truly outrageous before due process will prevent conviction of the defendant.” United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983).

While several criminal appellants have charged the government with outrageous conduct in their eases, this court has yet to overturn a conviction on that basis. See United States v. Valona, 834 F.2d 1334 (7th Cir.1987); United States v. Shoffner, 826 F.2d 619 (7th Cir.), cert. denied sub nom. Stange v. United States, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987); United States v. Swiatek, 819 F.2d 721 (7th Cir.), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Bruun, 809 F.2d 397 (7th Cir.1987); United States v. Podolsky, 798 F.2d 177 (7th Cir.1986); United States v.

Belzer, 743 F.2d 1213 (7th Cir.1984), cert. denied sub nom. Clements v. United States, 469 U.S. 1110, 105 S.Ct. 788, 83 L.Ed.2d 781 (1985); United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). Like those before him, Miller has failed to demonstrate that the government’s conduct leading to his arrest and indictment was sufficiently outrageous to preclude his prosecution and conviction.

Miller attempts to convince us otherwise by pointing to MEG’s contingent fee arrangement with Linda Zefo, her continued use of cocaine while in MEG’s employ and her sexual relationship with Miller. Neither separately nor combined, however, do these facts amount here to “truly outrageous” government conduct. This court has concluded that contingent fee payments to government informants are not per se outrageous; rather, the jury may consider such arrangements as evidence relating to the informant’s credibility.

Val-ona, 834 F.2d at 1344 (government recruited and transported informant into state and agreed to pay him 10% of value of any contraband, fruits or instrumentalities of criminal activity recovered with his assistance). Nor do we consider outrageous per se the government’s employment of former drug users and dealers as informants in undercover narcotics investigations. The use of such persons, while perhaps unfortunate and certainly unappealing, does contribute to undercover agents’ ability to penetrate criminal associations and root out crime at its source.

See Kaminski, 703 F.2d at 1007, 1010 (use of “unsavory” characters in undercover police investigations is “an unattractive business, but that is the nature of the beast_”). MEG did not act improperly in hiring Linda Zefo as an informant. There is no evidence whatsoever that MEG supplied Zefo with cocaine or knowingly supported her continued use of the drug. To the contrary, Agents Squire and Bates terminated Zefo’s employment when she refused to remain in the drug rehabilitation program in which they had placed her. Neither do we find it “truly outrageous” that Linda Zefo had been sexually intimate with Miller.

Both Zefo and Miller testified that their sexual relationship had ended some time in January — before Zefo began her employment as an informant for MEG. They never resumed their former intimacy, and MEG apparently did not even know about their prior relationship during Zefo’s employment. Even if Agents Squire and Bates had known of the relationship, there is no suggestion that they ever encouraged Zefo to use sex as a weapon in their investigation of Miller’s drug activities.

We also note that in Shoffner, this court upheld a conviction where the government’s key informant and witness in an auto theft conspiracy case had familial and sexual relationships with several of the defendants. See also United States v. Fadel, 844 F.2d 1425 (10th Cir.1988) (finding no outrageous government conduct where confidential informant in cocaine conspiracy case had sexual relationship with defendant while in government’s employ and repeatedly asked defendant for cocaine to sell); United States v.

Simpson, 813 F.2d 1462 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987) (FBI’s employment of informant known to be prostitute, heroin user and fugitive from Canadian drug charges was not outrageous, despite informant’s sexual intimacy with defendant heroin dealer). Given these decisions and the facts of this case, we are dubious whether MEG’s behavior was improper, let alone “truly outrageous.” Most importantly, Miller has failed to refute the government’s substantial evidence of his predisposition to distribute cocaine.

The government was minimally involved in Miller’s criminal activity; its informant introduced Miller to Agent Squire and set up two drug sales. The Constitution does not bar prosecution when the government or its employees “merely afford opportunities or facilities for the commission of the offense....” Russell, 411 U.S. at 435, 93 S.Ct. at 1644 (citing Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848 (1958)).

Further, this court has concluded that “[t]he use of informants and the offer of a reasonable inducement are proper means of investigating crimes.” Kaminski, 703 F.2d at 1009. With these guidelines in mind, we reject, as did the court below, Miller’s contention that Zefo “manufactured” the crimes of which he was convicted. She did no more than ask him to supply her with drugs, as he had apparently done quite willingly before, according to her testimony and as attested by Miller's request in Agent Squire's presence that Zefo repay him a $25 drug debt.

In this case, sufficient credible evidence established that Miller expressed no reluctance to procure the amounts of cocaine he eventually sold to Agent Squire and that he hesitated only long enough to acquire the necessary supply of drugs from his source. Miller's wallet bulging with currency, which he voluntarily showed to Squire at their first meeting, supplied further evidence of Miller's predisposition to sell cocaine. Certainly, the government had no involvement at all in the continuing conspiracy between Miller and his source to distribute cocaine.

Miller's own admission to Agent Squire and Linda Zefo revealed the existence of that conspiracy to the government. It is irrelevant that MEG did not begin an investigation of Miller until informed by Linda Zefo of his drug-related activities. The Constitution does not require the government to have a preexisting good faith basis for suspecting criminal activity before initiating an undercover investigation, Thoma, 726 at F.2d 1198-99, nor does any law command the police to focus their investigative efforts only on "big dealers," as Miller's brief implies.

In any event, MEG did have a good faith basis for investigating Miller once informed by Zefo that Miller was selling cocaine. By dealing drugs, Miller took the risk that one of his clients would report his activities to the police. We are unmoved by the fact that it was his former girlfriend who squealed. III. Miller challenges the district court's application of the Federal Sentencing Guidelines to his case. Specifically, he asserts that the court lacked sufficient evidence from which to determine the amount of cocaine associated with the conspiracy conviction.

Therefore, Miller urges, the appropriate sentence should have been based on the total amount of cocaine involved in the two distribution counts-1O.1 grams. As an initial matter, we note that we review the district court's findings of fact at a sentencing hearing only for clear error. United States v. Agyemang, 876 F.2d 1264, 1271 (7th Cir.1989). This rule of appellate review is especially important where, as here, the district court has had an opportunity to observe witnesses firsthand and judge their credibility.

After considering Miller's challenge to the district court's stated reasons for imposing its sentence, we cannot say that the district court's findings of fact were clearly erroneous, or that the district court erred as a matter of law in applying the Guidelines to Miller's case. At Miller's sentencing hearing, the district court listened to further testimony from Miller and his former roommate, Tim Palmer.

However, the court based its calculation of the amount of cocaine involved in the conspiracy charge on Miller's own admission to Agent Squire that he received approximately one ounce of cocaine every three weeks from his source. The court found that the conspiracy lasted from January 1, 1988-the day Linda Zefo met Miller-until April 4, 1988. The court chose April 4 (the day of the second buy) as the concluding date because it found insuffi-nt evidence to indicate the continuing existence of the conspiracy after that date. Record at 31, pp. 61-62, 63.

The court calculated that Miller had received a total of 122.85 grams during the thirteen weeks between January 1 and April 4. The district court proceeded reasonably, and its findings are not clearly erroneous. Despite the changes that the Guidelines have imposed on the sentencing process, it remains our rule that “so long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into account in passing sentence.” United States v.

Marshall, 519 F.Supp. 751, 754 (D.Wis.1981), aff'd, 719 F.2d 887 (7th Cir.1983); see also Sentencing Guidelines § 6A1.3 (adopting Marshall rule). The district court in this case found that Agent Squire’s testimony concerning Miller’s admission, together with other credible evidence, supported a finding beyond a reasonable doubt of Miller’s involvement in a conspiracy to distribute cocaine. Consequently, the district court was unquestionably permitted to consider that same evidence in determining Miller’s base sentencing level.

Miller essentially complains that the district court credited the testimony of Agent Squire and disregarded the conflicting testimony given by him and his roommate, Tim Palmer. Inasmuch as Miller and Palmer disagreed with each other, and given the trial court’s superior capacity to assess the credibility of the witnesses, we will not overturn the district court’s findings of fact on this matter. IV. We are also asked to review the district court’s application of the Sentencing Guidelines to the facts in this case. Again, we see no reason to disturb the decision below. Consulting

section 2Dl.l(

c) of the Guidelines, the court determined that Miller’s appropriate base offense level was 18. Because Miller had no prior convictions, the court assigned him a criminal history category of I. Thus, the prescribed sentencing range was 27-33 months imprisonment, and the district court set Miller’s sentence at a concurrent term of 32 months on each count. Record at 32, p. 110. The court refused a two-level reduction for Miller’s allegedly minor role in the conspiracy. Miller claims that this refusal constituted error.

We have recently held that we lack appellate jurisdiction to review a district court’s refusal to depart from the prescribed sentencing range. United States v. Franz, 886 F.2d 973 (7th Cir.1989). Miller, however, essentially argues that his sentence resulted from an incorrect application of the Guidelines. We therefore have jurisdiction over this appeal pursuant to 18 U.S.C.

section 3742(a). Miller relies on

section 3B1.2(

b) of the Guidelines, which instructs the sentencing judge to decrease the base offense level by two if the defendant was a minor participant in any criminal activity. The commentary to that section, however, observes that the decision whether to apply this reduction “involves a determination that is heavily dependent upon the facts of the particular case.” United States Sentencing Commission, Guidelines Manual § 3B1.2 (Nov. 1989).

Because of the critical importance of factual findings to a district court’s decision whether to allow a two-level reduction under this section, the standard of review for such a decision must be clear error. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), reh’g denied, 873 F.2d 297 (whether defendant was “minor” or “minimal” participant in crime under

section 3B1.2 is factual finding); cf. United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989) (whether defendant was “organizer” within meaning of

section 3Bl.l(

c) was question of fact). Miller was involved in a conspiracy to possess with intent to distribute cocaine over a period of at least four months. The district court calculated that during that time Miller received over 100 grams of cocaine, which he then sold. The fact that his unidentified co-conspirator may have been “more guilty” than he does not inevitably lead to a conclusion that Miller was, therefore, only a minor participant in the crime. Applying the proper standard of review and giving due deference to the district court’s application of the Guidelines to Miller, as we must under 18 U.S.C.

section 3742(e), we do not find clear error in the court’s refusal to grant Miller a two-level reduction for minor participation. The judgment of the district court is AFFIRMED. . Miller withheld the name of his source until he declared at the sentencing hearing following his conviction that the source was his roommate, Tim Palmer. Palmer denied this accusation, and no other evidence supported Miller’s eleventh-hour confession. . A panel of this court recently questioned the validity of the Russell dictum on outrageous government conduct because a three-justice plurality in Hampton v.

United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976), suggested that the remedy of a criminal defendant who actively participates with government agents in the commission of a crime is limited to the entrapment defense. See United States v. Bontkowski, 865 F.2d 129, 131-32 (7th Cir.1989); see also United States v. Williams, 858 F.2d 1218, 1225 (7th Cir.1988), cert. denied sub nom. Froschauer v. United States, — U.S. —, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989) (pointing to same language in Hampton).

At this point, however, the doctrine of outrageous government conduct has not been expressly disavowed by the Supreme Court or by this circuit. . Miller makes much of Tim Palmer's testimony during the sentencing hearing that Linda Zefo was "bugging" Miller to obtain cocaine for her. However, it was Miller's own defense counsel who supplied the word "bugging" in his cross-examination of Palmer. Palmer actually testified that Zefo "kept asking" Miller to obtain cocaine for her. Record at 31, p. 58.

In our view, such requests, even though repeated, were not an unreasonable inducement "shocking to the universal sense of justice." Russell, 411 U.S. at 432, 93 S.Ct. at 1643. . We have previously intimated that a court may recognize a defense of outrageous government conduct even where the defendant was predisposed to commit a crime if, for example, the government's a4ents or employees were to make a credible threat of physical violence to a defendant or a defendant's family. See Belzer, 743 F.2d at 1217 & n. 3. But no such extreme circumstances are present in this case. .

We have had unnecessary difficulty in discovering the district court's reasons for imposing Miller’s sentence. While the district court did complete a computerized form entitled "Report of Statement of Reasons for Imposing Sentence,” Record at 28, that document merely indicates that the court adopted the findings of the presentence report, but it does not state precisely what those findings were. We reiterate the requirement, recently established in United States v.

White, 888 F.2d 490, 495-96 (7th Cir.1989), that counsel provide this court with the district judge's specific findings of fact relevant to sentencing, and we ask district courts, for their part, to attempt to consolidate their specific findings into some readily accessible form. . The court also rejected Miller’s request for a two-level reduction for acceptance of responsibility, finding that Miller had attempted throughout the trial and sentencing hearing to shift the blame for his actions to other people. Record at 31, pp. 38-39. Miller does not challenge that decision here.