                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-2308
UNITED STATES   OF   AMERICA,
                                            Plaintiff-Appellee,
                              v.

PAUL A. CHILDS,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
          No. 03 CR 10026—Michael M. Mihm, Judge.
                        ____________
     ARGUED MARCH 31, 2006—DECIDED MAY 15, 2006
                   ____________


  Before ROVNER, EVANS, and SYKES, Circuit Judges.
  EVANS, Circuit Judge. Paul A. Childs is serving a lengthy
prison term following his conviction on five counts of
distributing crack cocaine in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(C), of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g), and of
possession of a firearm in relation to drug trafficking in
violation of 18 U.S.C. § 924(c). He appeals the denial of his
motion to suppress evidence and his motion for a new trial
or dismissal of the indictment.
   As is fairly common in drug cases, a part of the govern-
ment’s evidence against Childs came from codefendants who
flipped on him and confidential informants who
2                                              No. 05-2308

made controlled buys of drugs from him or his cohorts. It is
the deceit of the informants and the government’s failure to
reveal that deceit to Childs’ attorney in a timely manner
that is at the heart of this appeal.
  During an investigation in November and December 2002,
two law enforcement agencies used three confidential
informants to make controlled buys of crack from Elizabeth
Crabtree, Arvie Murphy, and Childs. In mid-December, the
agencies obtained search warrants for the residences of
Crabtree and Childs. After the warrants were executed,
Crabtree, Murphy, and Childs were arrested. Ultimately,
Crabtree and Murphy became government witnesses at
trial.
   The informants—Alan Logston, Kim Franks, and Eliza-
beth “Sissy” Froehlich—-also testified. All three said they
arranged to purchase crack from Childs by calling him on
his cell phone. After the first controlled buys, a McLean
(Illinois) County judge authorized the recording of other
phone calls and transactions.
   Informant Logston had known Childs for about 25 years.
Logston, who had a significant criminal record, was a crack
addict. He bought between $100 and $200 worth of crack a
day from Childs during the summer of 2002. In order to pay
his bills, Logston talked to Inspector Troy Doza of the
Illinois State Police Drug Task Force, with whom he had
previously worked as an informant, and told him that he
could purchase drugs from Childs. On four occasions, Doza
gave Logston money to purchase crack. Logston arranged
for the purchases with Childs over the phone. The first
three times, Logston received the crack from Crabtree, and
the last time, it was delivered by a man in a parking lot.
Doza searched Logston before and after each delivery. For
his services, Logston was paid $400. Although Doza did not
know it at the time, Logston was buying crack from other
dealers and using it during the time he was working as an
informant.
No. 05-2308                                                 3

  On cross-examination during Childs’ trial, Logston
admitted that on three occasions, rather than the one
bag he turned over to Doza, he actually purchased two bags.
His scheme, which we think would certainly turn most
stomachs, was disgustingly simple: he would swallow one of
the bags, give one to Doza, and later, when on his own,
vomit up the swallowed bag and smoke the crack. Logston
told Doza about this deception a week before trial. Doza told
the prosecutors but they did not tell Childs’ attorney, who,
upon learning, during trial, of the deception and the prosecu-
tors’ failure to notify him, promptly moved for dismissal of
the indictment. After much discussion, the presiding judge,
the Honorable Michael M. Mihm, denied the motion.
  As if hiding Logston’s deception weren’t bad enough,
during the discussion preceding Judge Mihm’s ruling, the
prosecutors announced that a second informant, Froehlich,
had admitted the evening before that she had hidden
some of the crack from the investigators on all three
controlled buys she made.
  The story of Froehlich’s involvement in this case begins
after her release from a 4-year prison sentence. Soon after
her release she began using $400 worth of crack a day.
She became an informant and made 18 buys from various
people under the direction of Detective Robert Wall. During
this time she met Childs, was briefly involved with him
sexually, and began buying crack from him almost daily.
   She told Wall that she could buy from Childs and subse-
quently made three controlled buys. Detective Wall
searched her before and after her meetings with Childs.
Despite his searches, on the first buy she bit open the bag of
crack and took out approximately .5 grams of crack and hid
it in a hole in one of her teeth—a trick we have not had
satisfactorily explained to us. Wall questioned her about the
tear in the bag; she told him that Childs opened the bag to
show her that the crack was the correct color. Wall accepted
4                                              No. 05-2308

the explanation, despite the fact that the bag was transpar-
ent. On the other two buys, Froehlich convinced Childs to
give her a free sample when she was purchasing the crack
for Wall. Childs gave her a “fat 20”—about .2 grams. She
hid these amounts in her tooth as well. Wall checked her
mouth after the first two buys but found nothing. He did
not check after the third buy. Froehlich smoked the crack
she hid from Wall and used some of the $7,145 she was paid
as an informant to buy crack from other dealers.
  At trial, Froehlich’s testimony showed that she had
revealed her deception well before the time the pros-
ecutors indicated that she had. (Recall that they said they
found out the night before they informed Judge Mihm.)
    Q: Then you didn’t actually tell the truth about taking
       that crack out of the bag until when?
    A: Within the last few weeks.
    Q: Well, in fact wasn’t it last Tuesday night that you
       told the prosecutors that you had in fact taken
       crack cocaine from that bag?
    A: No. It was prior to that, sir.
    Q: Who did you tell prior to that?
    A: I told the U.S. Attorneys.
    Q: Prior to the beginning of the trial?
    A: Yes.
    Q: Did you tell Detective Wall that prior to trial?
    A: He was aware of that because he was in a meeting.
    Q: He was also present when you told—
    A: Yes.
    Q: —the prosecutors that?
    A: Yes.
No. 05-2308                                                5

    Q: Did you volunteer it or were you questioned about
       it?
    A: I volunteered it, sir.
    Q: Did you tell them at the same time that you had
       taken crack cocaine from the original source of
       the crack before it was packaged and given to you
       on those other two occasions?
    A: Yes.
    Q: Is that the first time you told either the police or
       the prosecutors during your preparation for trial?
    A: Yes.
Detective Wall corroborated Froehlich’s testimony, saying
that he learned Froehlich had lied to him when “we began
to prepare for this trial.” He also said the prosecutors knew
before trial began.
  Kim Franks was also a crack addict who agreed to
cooperate with the police after an arrest on a charge of
delivery of a controlled substance. She told Detective John
Heinlen that she could purchase crack from Childs, whom
she had known from school. At Heinlen’s direction, she
purchased crack from Childs on three occasions.
  Other evidence at trial included the testimony of Crab-
tree, who had been Childs’ girlfriend. She said she sold
drugs for him and that he carried a handgun for protection.
Murphy, Childs’ cousin, also testified. When he was paroled
from prison in the fall of 2002, he began living with Childs
and selling drugs for him. Murphy was the man in the
parking lot who sold drugs to Logston. In addition, when
Childs was arrested, he was in possession of currency used
in purchases Logston and Froehlich had made.
  After the testimony of the informants and the case agents
regarding the deceit, Childs’ counsel made a motion to
suppress evidence. Judge Mihm denied that motion. He also
6                                                No. 05-2308

denied motions to dismiss the indictment and, after Childs
was convicted, a motion for a new trial as well.
  In this appeal, Childs argues that this is a proper case
in which to establish the principle that outrageous gov-
ernment misconduct requires dismissal of criminal
charges and that, in fact, the government misconduct meets
that standard. Although we are dismayed, as was Judge
Mihm, by the conduct of the government, we are
not convinced that dismissal of the indictment or a new
trial is required.
  We review the denial of a motion for a new trial for an
abuse of discretion, viewing the evidence in the light
most favorable to the prevailing party. We will not set aside
a jury verdict if there is a reasonable basis in the record to
support it. United States v. Souffront, 338 F.3d 809 (7th Cir.
2003). The parties here agree that a decision to dismiss
charges against a defendant on the basis of outrageous
government misconduct is also reviewed for an abuse of
discretion. See United States v. Jordan, 316 F.3d 1215 (11th
Cir. 2003).
  The government has an obligation to disclose, prior to
trial, impeaching evidence and evidence favorable to a
defendant, Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.
United States, 405 U.S. 150 (1972); United States v. Gonza-
lez, 93 F.3d 311 (7th Cir. 1996). To prevail on a Brady
claim, the defendant must show (1) that the evidence was
favorable to him because it was exculpatory or impeaching;
(2) that the government willfully or inadvertently sup-
pressed the evidence; and (3) that the defendant suffered
prejudice as a result. United States v. O’Hara, 301 F.3d 563
(7th Cir. 2002). To establish prejudice, a defendant must
establish a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different. Strickler v. Greene, 527 U.S. 263 (1999).
No. 05-2308                                                 7

  Childs meets the first two requirements. This was
impeachment evidence and the government willfully
suppressed it—more about that later. However, Childs
cannot show that he was prejudiced.
  Childs’ inability to show prejudice is, in part, a function
of his having a very skillful defense attorney (Robert
Alvarado, an assistant Federal Defender from Peoria) at his
side. Counsel was able to thoroughly impeach the witnesses
once the information was belatedly made available. Never-
theless, Childs contends that, had he known of the deceit
earlier, he might have offered an entrapment defense. He
does not explain exactly how the information would have
provided him with an entrapment defense he did not have
without it, and we are at a loss to guess. Judge Mihm did
not abuse his discretion in determining that no prejudice
existed.
  Perhaps knowing he cannot show prejudice, Childs
requests that we dismiss the indictment on the basis of
outrageous government conduct. Despite our displeasure at
the conduct of the government lawyers, however, we are not
convinced this is the sort of case where such a bold step is
called for.
  True, the Supreme Court has left open the possibility of
giving Childs the relief he requests. In United States v.
Russell, 411 U.S. 423, 431-32 (1973), the Court stated:
      While 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, the instant case is distinctly not of
    that breed. (Citation omitted.)
But we have never taken what we see to be an extreme step
of dismissing criminal charges against a defendant because
of government misconduct. See United States v. Boyd, 55
F.3d 239 (7th Cir. 1995); United States v. Miller, 891 F.2d
1265 (7th Cir. 1989). Granting such relief in the absence of
8                                                    No. 05-2308

prejudice to a defendant would be to confer an unearned
windfall.
  That said, as is also surely clear by now, we are convinced
that the conduct of government was designed to deliberately
mislead the court and defense counsel. The transcript of the
proceedings speaks for itself. It shows the stonewalling the
prosecution engaged in. Detective Wall’s answer to ques-
tions about the timing of the discovery of the deception was
all too often, “I do not recall.” Judge Mihm had the following
exchange with the prosecutors:1
    MR. CAMPBELL: That was approximately a week
                  or so ago.
    THE COURT:            Was it before—
    MR. CAMPBELL: A week or so before trial.
    THE COURT:            Well, why wasn’t that information
                          conveyed prior to trial?
    MR. CAMPBELL: We had to confront her about it and
                  try to figure out what it was she
                  had done and how she had done it.
    THE COURT:            I don’t understand that. I mean
                          how did you learn about it? She
                          says she told you.
    MR. CAMPBELL: Well, I think that that may not be
                  quite how it happened because
                  I think she was confronted by us


1
  The prosecutors in this case were Assistant United States
Attorneys Bradley Murphy and John Campbell from the Central
District of Illinois. Judge Mihm indicated on the record that he
had never previously known either attorney to fail to act in
good faith. That said, he expressed dismay at their handling of the
problems that arose in this case.
No. 05-2308                                                9

                        with the transcript information,
                        actual words in which she said—
    THE COURT:          Did you confront her with this prior
                        to trial?
    MR. CAMPBELL: Yes, we did.
    THE COURT:          Why didn’t you tell defense coun-
                        sel about it prior to trial?
    MR. CAMPBELL: We talked to her last night again
                  and reviewed it with her and we
                  did tell him, defense counsel.
    THE COURT:          He didn’t learn this until last
                        Tuesday or Wednesday.
    MR. CAMPBELL: I believe that’s the first time we
                  told him.
    THE COURT:          Why didn’t you tell him?
    MR. CAMPBELL: I’m not sure, Your Honor, why we
                  didn’t. There was a transcript. The
                  transcription was part of the prob-
                  lem, trying to sort out what it was
                  we could confirm, whether it was
                  true or not, whether it even hap-
                  pened or not, so it was in that rush
                  to get to trial that we didn’t do that
                  apparently.
Campbell’s explanation is weak and unconvincing and
makes it appear, at least, that there was a deliberate
effort to hide the facts from the court and defense coun-
sel. After this fiasco, one would hope that the office of the
United States Attorney is bending over backwards to regain
the good opinion of Judge Mihm and this court.
  The final issue is whether the motion to suppress
evidence—made following the revelations at trial about
the shenanigans of Logston and Froehlich—should have
10                                              No. 05-2308

been granted. Judge Mihm denied the motion as well as
Childs’ request for a hearing pursuant to Franks v. Dela-
ware, 438 U.S. 154 (1978). On the final day of trial, when
Childs renewed his request for suppression of the evidence,
he conceded that the trial, in essence, constituted a full
Franks hearing. Our review, then, is that appropriate for a
denial of a motion following a Franks hearing—that is, for
clear error. United States v. Whitley, 249 F.3d 614 (7th Cir.
2001).
  Warrants are presumed to be valid. Under Franks, two
levels of inquiry are required: first, was the false infor-
mation included intentionally or recklessly, and, next, was
the affidavit, when stricken of the false information,
nevertheless sufficient to establish probable cause for
the issuance of the warrant. At bottom, Judge Mihm
concluded that, when the officers applied for the warrant,
they did not know about Logston’s or Froehlich’s theft of
some of the drug evidence. We agree. Shortly before trial,
but after the application for the warrant, it became clear
that the informants were unreliable, but there is no evi-
dence that the officers had that information at the
time they applied for the warrants.
  Furthermore, even were the evidence provided by Logston
and Froehlich set aside, the information regard-
ing controlled buys made by Kim Franks supports the
issuance of the warrants. Her reliability was not in ques-
tion. We cannot find clear error in the denial of the motion
to suppress evidence.
 Accordingly, Mr. Childs’ judgment of conviction is
AFFIRMED.
No. 05-2308                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-15-06
