In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3423, 00-3549, and 00-3694

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VINETTE CROWLEY, JERRY HALLGREN,
and WILLIAM CROWLEY,

Defendants-Appellants.

Appeals from the United States District Court
for the Western District of Wisconsin.
No. 00-CR-0007-C--Barbara B. Crabb, Chief Judge.

Argued March 29, 2001--Decided March 29, 2002



  Before Easterbrook, Rovner, and Diane P.
Wood, Circuit Judges.

  Rovner, Circuit Judge. William Crowley,
his wife Vinette Crowley, and his
brother-in-law Jerry Hallgren were
convicted of drug offenses stemming from
a conspiracy to distribute
methamphetamine in Superior, Wisconsin.
The Crowleys, who pleaded guilty, jointly
challenge on appeal the district court’s
denial of their motion to suppress
evidence. Vinette Crowley also appeals
the district court’s refusal to sentence
her as a "minor participant" in the
conspiracy. Hallgren, who went to trial,
appeals several aspects of his conviction
and sentence. We affirm the district
court’s judgments in all respects.

BACKGROUND

I.   William and Vinette Crowley

  Sometime in 1992, federal authorities in
the Western District of Wisconsin began
to suspect that William and Vinette
Crowley were distributing
methamphetamine. Their home was the
subject of two search warrants; both
searches turned up evidence of
methamphetamine distribution, such as
scales, plastic baggies, and glass vials.
In 1997, authorities obtained a warrant
to seize a suspicious package intercepted
by the U.S. Postal Service that was
addressed to the Crowleys. A search
revealed that the package contained two
ounces of methamphetamine. Police then
notified area delivery services,
including the United Parcel Service
("UPS"), to watch for suspicious packages
addressed to the Crowleys. The police
directed that anyone discovering such a
package should contact authorities.

  On June 30, 1997, UPS driver Cathleen
Champaigne noticed a package addressed to
the Crowleys. Remembering that police
were on the lookout for suspicious
packages sent to the Crowleys, she opened
the package. Inside she found a tobacco-
like substance that she suspected was
marijuana. She flagged down a county
deputy sheriff and asked him to notify
the Superior Police Department. The
deputy sheriff, in turn, contacted
Superior police officers Jerome Koneczy
and Todd Maas, who were assigned to the
narcotics unit.

  Officers Koneczy and Maas caught up with
Champaigne later that day as she was
making a delivery. The three stood in
Champaigne’s truck while the officers
questioned her about the package.
Champaigne told the officers her
suspicions about the package’s contents.
By this time, she had resealed the
package for delivery. The police
inspected the outside of the package and
noted that it was similar to the package
seized by the postal service earlier that
month. Both packages had been addressed
to "Mr. Mrs. Crowley, 726 Winter" with
the state listed as "Wi" with no period,
and both had been sent from California.

  After inspecting the outside of the
package, Officer Koneczy handed it back
to Champaigne. He became momentarily
distracted by a car pulling behind
Champaigne’s truck. Without warning,
Champaigne reopened the package and began
removing its contents. Among the items
inside was a baggie containing what
appeared to Officer Koneczy to be coffee
grounds. From viewing the outside of the
baggie, Officer Koneczy saw a hard, white
substance hidden in the coffee grounds
that he suspected was methamphetamine.
The officers left and obtained a search
warrant; a subsequent search revealed
that the package contained 3.8 ounces of
methamphetamine.

  Federal authorities continued to
investigate the Crowleys’ activities and
in January 2000 obtained a three-
countindictment against the Crowleys and
Jerry Hallgren, Vinette Crowley’s
brother. Count 1 charged all three
defendants with engaging in a conspiracy
to distribute methamphetamine between
November 1994 and February 1998, in
violation of 21 U.S.C. sec. 846 and sec.
841. Counts 2 and 3 charged the Crowleys
with possessing methamphetamine with
intent to distribute, in violation of 21
U.S.C. sec. 841.

  The Crowleys moved to suppress the
package seized from the UPS truck,
arguing that Champaigne had been acting
as an "agent" of the police when she
opened the package, and that her
warrantless search violated the Fourth
Amendment. A magistrate judge held an
evidentiary hearing and recommended
denying the motion. The magistrate judge
concluded that Champaigne’s actions could
not be imputed to the police because she
was "acting on her own, without having
received any direction from the police"
when she opened the package. The district
court adopted the magistrate judge’s
recommendation and denied the motion to
suppress.

  Vinette Crowley subsequently entered a
conditional plea of guilty to one count
of attempted possession of
methamphetamine with intent to
distribute. Her plea agreement preserved
her right to appeal the suppression
issue. In the presentence report ("PSR"),
the probation officer estimated that the
conspiracy had involved 4,381 grams of
methamphetamine. The probation officer
recommended that Ms. Crowley be held
responsible for approximately 850 grams
of methamphetamine, representing amounts
that two government witnesses admitted to
shipping to the Crowleys from California
over a period of months. The
probationofficer noted that Ms. Crowley
had handled the details of the shipments,
including wiring money and tracking the
"missing" packages that had been
confiscated by law enforcement.

  Based on her plea agreement, Ms. Crowley
and the government both argued at
sentencing that she should receive a
downward adjustment as a "minor
participant" in the conspiracy. See
U.S.S.G. sec. 3B1.2(b). The district
court rejected this argument, finding
that Ms. Crowley was not a "minor
participant" in the transactions for
which she was being held responsible, but
instead was significantly involved in
acquiring the California shipments. The
court sentenced Ms. Crowley to 97 months’
imprisonment, three years of supervised
release, and a $100 special assessment.

  William Crowley entered a conditional
plea to the conspiracy count, also
preserving the suppression issue for
appeal. The probation officer recommended
that Mr. Crowley be held responsible for
the entire 4,381 grams as the
conspiracy’s leader. The district court
accepted this recommendation and
sentenced Mr. Crowley to 240 months’
imprisonment, three years of supervised
release, and a $100 special assessment.

II.   Jerry Hallgren

  Jerry Hallgren opted to go to trial. The
government called ten witnesses, three of
whom provided direct testimony linking
Hallgren to the conspiracy. Hallgren’s
former live-in girlfriend, Brenda
Johnson, testified that from 1992 to 1995
Hallgren made his living by selling
methamphetamine obtained from William
Crowley. Johnson testified that on one
occasion she saw Hallgren in possession
of a "golf ball"-size rock of
methamphetamine, which he crushed and
packaged into one-ounce plastic bags.
Johnson further testified that following
their break-up in 1998 she began
providing information to the police about
the Crowley’s drug ring. She stated that
sometime the following year Hallgren
threatened her with becoming "another
Daley case," referring to the unsolved
murder of two Superior women.

  Another government witness, Michael
Shopa, testified that he purchased 1/8-
ounce quantities of methamphetamine from
Hallgren once or twice a month during
1996 and 1997. Shopa testified that when
purchasing drugs he observed Hallgren in
possession of four or five other small
plastic bags containing what he presumed
to be methamphetamine. The final witness
linking Hallgren to the conspiracy was
Ken Cowen, who supplied methamphetamine
to Crowley. Cowen testified that Hallgren
was one of Crowley’s dealers, and that
Hallgren frequently owed money to Crowley
for methamphetamine purchases that had
been "fronted" to him for resale. Cowen
further testified that he had packaged
methamphetamine in Hallgren’s attic while
Hallgren was at home.

  The jury returned a guilty verdict. The
probation officer recommended that
Hallgren be held responsible for distrib
uting 1,134 grams of methamphetamine, an
amount derived from trial testimony and
interview reports. The probation officer
estimated that Hallgren received at least
one ounce of methamphetamine per month
from William Crowley during the
conspiracy. The probation officer also
recommended that Hallgren receive a two-
level increase in his offense level for
obstructing justice based on his threat
to Brenda Johnson, which had been made
after the government sent William Crowley
a "target" letter informing him that he
was under investigation. The district
court accepted these recommendations and
sentenced Hallgren to 151 months’
imprisonment, three years of supervised
release, and a $100 special assessment.

ANALYSIS

I.   Motion to Suppress

  The Crowleys argue on appeal that the
district court should have suppressed the
package seized from UPS because driver
Cathleen Champaigne was acting as an
"agent" of the police when she opened the
package without a warrant. We review the
district court’s factual findings made in
the context of a motion to suppress for
clear error and its legal determinations
de novo. United States v. Angle, 234 F.3d
326, 334 (7th Cir. 2000), cert. denied,
121 S. Ct. 2556 (2001).

  A search or seizure by a private party
does not implicate the Fourth Amendment
unless the party is acting as an
"instrument or agent" of the government.
See United States v. Shahid, 117 F.3d
322, 325 (7th Cir. 1997); United States
v. Koenig, 856 F.2d 843, 847 (7th Cir.
1988). In determining whether a private
party acted as an "instrument or agent"
of the government, we consider several
factors, including whether the government
knew of and acquiesced in the intrusive
conduct; whether the private party’s
purpose in conducting the search was to
assist law enforcement; and whether the
government requested the action or
offered the private actor a reward.
United States v. Hall, 142 F.3d 988, 993
(7th Cir. 1998); Shahid, 117 F.3d at 325.
We conduct this analysis on a case-by-
case basis in light of all the
circumstances. Hall, 142 F.3d at 993. The
defendant bears the burden of proving
that a private party acted as an agent of
the government. United States v. Feffer,
831 F.2d 734, 737 (7th Cir. 1987).

  The first time Champaigne opened the
package, the police were not present, nor
had the officers ever spoken with
Champaigne. The police had merely
notified area delivery services to watch
for suspicious packages and contact
authorities; they did not instruct
anyone, including Champaigne, to open any
packages. The Fourth Amendment is not
triggered when a private party initiates
a search and contacts police after
evidence is discovered. See Hall, 142
F.3d at 993. There is no evidence here
that the police controlled, directed,
condoned, or acquiesced in Champaigne’s
initial decision to open the package. See
Shahid, 117 F.3d at 325. Accordingly, her
actions cannot be imputed to the police.

  Although the police were present when
Champaigne re-opened the package, the
district court found no suggestion that
the officers gave Champaigne a "wink-and-
a-nudge," or otherwise encouraged her to
show them the contents of the package.
Rather, the court credited Officer
Koneczy’s testimony that the officers
were surprised when Champaigne re-opened
the package, and we defer to the court’s
credibility determination. See United
States v. Woods, 233 F.3d 482, 484-85
(7th Cir. 2000). The mere fact that the
police witness a private party’s search
does not transform the private party into
a governmental agent. See United States
v. Smythe, 84 F.3d 1240, 1243 (10th Cir.
1996).

  Champaigne’s motivation to assist law
enforcement does not change the result in
this case. "Concern about the effects of
crime on the public at large is not a
vice which one must assume signifies a
conspiracy with the government, but a
cherished, commonly held, and wholesome
virtue." Koenig, 856 F.2d at 851. The key
here is that the officers did not induce
Champaigne to act. See id. at 850;
Shahid, 117 F.3d at 327. There is no
suggestion that Champaigne expected
either a benefit for opening the package
or a detriment for not opening the
package. See Shahid, 117 F.3d at 327;
Feffer, 831 F.2d at 737. In other words,
Champaigne acted out of her own desire to
help the police and not as their agent.
"Private parties may, of their own
accord, pursue the same objectives they
have set for their elected officials
without acquiring the legal status of
governmental agent." Shahid, 117 F.3d at
326. The district court thus properly
rejected the Crowleys’ Fourth Amendment
claim.

II.   Vinette Crowley’s Sentence

  Vinette Crowley also challenges her
sentence, arguing that the district erred
in refusing to grant her a minor role
reduction pursuant to U.S.S.G. sec.
3B1.2. Section 3B1.2(b) allows a judge to
decrease the offense level by two points
"[i]f the defendant was a minor
participant in any criminal activity."
U.S.S.G. sec. 3B1.2(b); United States v.
Felix-Felix, 275 F.3d 627, 636 (7th Cir.
2001). A defendant seeking a minor role
reduction bears the burden of proving by
a preponderance of the evidence that he
or she was "substantially less culpable"
than the other coconspirators. See
U.S.S.G. sec. 3B1.2, comment (n. 3);
Felix-Felix, 275 F.3d at 636. Because the
district court’s decision to grant a
minor role reduction is heavily dependent
on the facts, we review it only for clear
error. Felix-Felix, 275 F.3d at 636;
United States v. Carrillo, 269 F.3d 761,
770 (7th Cir. 2001). We note that the
reduction is meant to be granted
infrequently. See United States v.
Navarro, 90 F.3d 1245, 1263 (7th Cir.
1996).

  The comparative roles of conspirators
are an important, but not determinative,
consideration in whether to grant a minor
role reduction. See United States v.
Kerr, 13 F.3d 203, 206 (7th Cir. 1993).
One person might be the "driving force"
behind a criminal scheme, but a defendant
who plays an integral role by assisting
with that scheme is not eligible for a
minor role reduction. See Navarro, 90
F.3d at 1263. The evidence here suggests
that Ms. Crowley was not a minor
participant in the conspiracy, but
instead played an integral role in
assisting her husband’s drug operation.
See id.

  In the PSR, the probation officer noted
that Vinette Crowley "had an active role
and took a number of steps to assist her
husband in the distribution of
methamphetamine." One witness described
her as William Crowley’s "business
partner," who sold drugs out of their
residence. Another witness observed Ms.
Crowley purchase methamphetamine from a
supplier. Two suppliers stated that Ms.
Crowley had handled the details of
several drug shipments they sent from
California by wiring money and tracking
packages. Despite the fact that William
Crowley played a relatively greater role
in the conspiracy, the district court did
not clearly err in denying Vinette
Crowley’s request for a downward
adjustment. See United States v. Cain,
155 F.3d 840, 844 (7th Cir. 1998)
(defendant who provided "necessary
services" to conspiracy, such as driving
passenger to drug deals and renting
apartment used to store drugs, was not
entitled to minor role reduction); United
States v. Brooks, 957 F.2d 1138, 1149
(4th Cir. 1992) (defendant who sells
drugs does not have minor role in drug
conspiracy). Moreover, a minor role
reduction was particularly unnecessary
here because the district court held Ms.
Crowley responsible only for drugs that
she herself obtained. See Felix-Felix,
275 F.3d at 637. Accordingly, we affirm
Ms. Crowley’s sentence.

III.   Jerry Hallgren’s Conviction

  On appeal, Hallgren raises three trial
errors that he argues warrant reversal of
his conviction. He first contends that
the district court should have ordered
the government to produce an alleged
statement from government witness Michael
Shopa pursuant to the Jencks Act, 18
U.S.C. sec. 3500. He next argues that the
court should have allowed him to
introduce bank records belonging to a
"Jerry Obie," which he argues would have
supported a mistaken identity defense. He
last contends that the court abused its
discretion in allowing a transcript of
Michael Shopa’s testimony to be read to
the jury.

  A.   The Jencks Act

  The Jencks Act requires that after a
government witness testifies, and upon
the defendant’s motion, the government
must produce any prior statement the
witness made that relates to the subject
matter of the witness’s testimony. See 18
U.S.C. sec. 3500(b); United States v.
Johnson, 200 F.3d 529, 533 (7th Cir.
2000). The Jencks Act does not obligate
the government to disclose investigative
or trial preparation material; rather, it
requires only the disclosure of pretrial
statements a government witness signed,
adopted, or otherwise approved. Johnson,
200 F.3d at 533.

  Hallgren argues that he did not receive
Jencks material for government witness
Michael Shopa and was therefore "unfairly
surprised" by Shopa’s testimony. There is
no question that counsel made a timely
motion for the disclosure of Jencks
material. However, the government
asserted at trial, and continues to
assert on appeal, that it possessed no
pretrial statement for Shopa, and that
there was therefore nothing to disclose.
The district court accepted this
representation and allowed the trial to
go forward. Defense counsel did not
request a hearing on the existence of any
Jencks material, nor did he question
Shopa on cross-examination about whether
he had given a prior statement to law en
forcement. On redirect examination by the
government, Shopa testified that he was
not subpoenaed until the Friday preceding
trial and that no one had interviewed him
prior to his pretrial meeting with
prosecutors. Hallgren points out on
appeal that when asked by the government
whether "prior to that had you been
contacted or interviewed about this man?"
Shopa replied without elaboration, "Yes,
I had."

  This apparent contradiction
notwithstanding, we find no error in the
district court’s acceptance of the
government’s representation that no
Jencks material existed. If Hallgren
wished to pursue this claim, he should
have informed the district court about
the potential contradiction created by
Shopa’s testimony. See Johnson, 200 F.3d
at 536. Because there is nothing in the
record to definitively show that Shopa
gave a prior statement covered by the
Jencks Act, we will not speculate about
the existence of such a statement on
appeal. See id.; cf. United States v.
Starnes, 644 F.2d 673, 680 (7th Cir.
1981) (holding that defendants forfeited
their argument that the prosecutor failed
to provide exculpatory evidence under
Brady v. Maryland, 373 U.S. 83 (1963), by
failing to explore the issue on cross-
examination of government agents or by
seeking a hearing in the district court).
Hallgren did not properly develop the
record on this point below, and we can
find no error in the district court’s
handling of this issue.


  B.   Other alleged trial errors

  We need not tarry with Hallgren’s
remaining challenges to his conviction.
He first asserts that the trial court
erred in refusing to admit bank records
pertaining to a "Jerry Obie," which he
argues would have supported a mistaken
identity defense. Hallgren asserts that
it was Jerry Obie and not he who was
William Crowley’s "right hand man"; the
bank records purportedly showed that Obie
had lived with the Crowleys during the
conspiracy. We cannot conclude that the
district court abused its discretion in
refusing to admit these records. See
Angle, 234 F.3d at 343. As the court
observed, whether some other person was
also involved in the conspiracy in no way
related to Hallgren’s guilt. See United
States v. Krankel, 164 F.3d 1046, 1048
(7th Cir. 1998) (district court properly
excluded evidence that did not tend to
prove or disprove an element of the crime
charged). Moreover, the witnesses who
testified to Hallgren’s direct
involvement in the conspiracy knew him
well and were not likely to be mistaken
about his identity: Brenda Johnson was
his live-in girlfriend for three years
and the mother of his child; Michael
Shopa testified that he knew Hallgren
since 1989; and Kenneth Cowen testified
that he and Hallgren had been friends
since 1986. Accordingly, the district
court’s refusal to admit the bank records
was proper.

  Hallgren also contends that the court
should not have allowed a transcript of
Michael Shopa’s testimony to be read to
the jury. We have held that such a
determination is uniquely committed to
the discretion of the trial court. United
States v. Berry, 133 F.3d 1020, 1023-24
(7th Cir. 1998); United States v. Guy,
924 F.2d 702, 708 (7th Cir. 1991). The
trial judge should consider the
"reasonableness of the request, the ease
or difficulty in compliance, and what is
likely to be gained or lost." United
States v. Aubin, 961 F.2d 980, 983 (1st
Cir. 1992) (citations and internal
quotations omitted). Having reviewed the
record, we cannot see how the court
abused its discretion on this point. The
court allowed the testimony to be read
only after the jury, for the second time,
raised a question about a critical aspect
of Shopa’s testimony--his drug purchases
from Hallgren. See Berry, 133 F.3d at
1023-24. The reading took less than 20
minutes, and the court instructed the
jury not to give Shopa’s testimony undue
weight. See Aubin, 961 F.2d at 983.
Accordingly, we reject Hallgren’s
argument.

IV.   Hallgren’s Sentence

  Hallgren next challenges his sentence,
arguing that the district court erred in
calculating drug quantity and in
assessing him a two-point upward
adjustment for obstruction of justice. We
review both determinations for clear
error. See United States v. Johnson, 227
F.3d 807, 813 (7th Cir. 2000), cert.
denied, 532 U.S. 1024 (2001).

  In calculating Hallgren’s sentence, the
district court counted as relevant
conduct 1,134 grams of methamphetamine.
The court based its calculation on the
trial testimony of Brenda Johnson and
Michael Shopa, as well as a statement
given to law enforcement by Natasja
Brech, another former girlfriend of
Hallgren’s. In particular, Johnson
testified that for three years Hallgren
made his living by selling drugs for
Crowley, and that she witnessed him in
possession of a "golf ball"-size rock of
methamphetamine, which he crushed and
packaged for resale. Michael Shopa
testified that he purchased 1/8-ounce
amounts of drugs from Hallgren once or
twice a month during a two-year period,
and that on those occasions he witnessed
Hallgren in possession of several other
1/8-ounce bags of methamphetamine.
Natasja Brech told law enforcement that
she had obtained a little more than an
ounce of methamphetamine from Hallgren
during a six-week period in 1995. Based
on this evidence, the district court
estimated that Hallgren was responsible
for selling approximately one ounce of
methamphetamine per month during each
month of the conspiracy.

  Hallgren asserts that the court’s
calculation was clearly erroneous because
"no witness testified that he [sold
drugs] for every single month during the
conspiracy." Hallgren misunderstands the
nature of the district court’s task. No
one disputes that the 1,134-gram figure
was an estimate of the amount of
methamphetamine Hallgren sold. But
district judges calculating drug
quantities "are not required to act like
agents of the Bureau of Weights and
Measures." Berry, 133 F.3d at 1024.
Estimates are permissible, so long as
they represent reasonable assumptions
based on reasonably accurate information.
Id. Here the district court made a
reasonable assumption regarding the
amount of methamphetamine Hallgren sold
based on the evidence in the record. See
Johnson, 200 F.3d at 537. Accordingly, we
decline to find the court’s drug-quantity
calculation clearly erroneous.

  Hallgren next argues that the government
did not meet its burden of proving by a
preponderance of the evidence that he
obstructed justice. See United States v.
Noble, 246 F.3d 946, 953 (7th Cir. 2001).
At sentencing, the government argued that
Hallgren threatened Brenda Johnson
shortly after authorities sent William
Crowley a "target" letter informing him
that he had become the focus of a federal
criminal investigation. The government
argued that Hallgren knew Johnson had
witnessed his drug-dealing and that he
must have surmised--correctly, it turns
out--that Johnson was providing
information to the government.

  Hallgren does not dispute that
threatening a witness amounts to
obstruction of justice. See U.S.S.G. sec.
3C1.1, comment 4(a); United States v.
Johnson, 227 F.3d 807, 814 (7th Cir.
2000), cert. denied, 532 U.S. 1024
(2001). Nor does he deny threatening
Johnson; instead he claims that the
government failed to prove a sufficient
"nexus" between his threat and Johnson’s
statements to police. Hallgren argues
that he threatened Johnson in 1997 during
an unrelated dispute, long before the
Crowleys knew that they were under
federal investigation. In support
Hallgren cites his wife’s testimony that
she witnessed an altercation between
Johnson and Hallgren in 1997. His father-
in-law also testified that he recalled
Hallgren telling him that same year about
an altercation he had with Johnson.

  In contrast, the government cites
Johnson’s testimony that she ran into
Hallgren at a gas station in 1999,
shortly after she had been interviewed by
the police. She stated that Hallgren
approached her and threatened to make her
"another Daley case." Johnson was aware
that the "Daley case" referred to the
unsolved murder of two Superior women,
and his threat frightened her. She was
also aware that Hallgren’s sister,
Vinette Crowley, had been charged with
but not convicted of the Daley murders.

  Johnson’s testimony was not inherently
implausible, nor was it necessarily
contradicted by the defense witnesses who
testified about an altercation between
Hallgren and Johnson in 1997. Hallgren
points to nothing in the record to
suggest that the district court’s
decision to credit Johnson’s testimony
constituted clear error. See Johnson, 227
F.3d at 815; see also Noble, 246 F.3d at
953 ("In the absence of inconsistency in
a witness’s story, we defer to the
district court’s determination of witness
credibility, which can virtually never be
clear error.") (citations and internal
quotations omitted). This is not the rare
case where we are left with the firm
belief that an error has been made, and,
accordingly, we affirm the upward
adjustment for obstructing justice. See
Johnson, 227 F.3d at 815.

  For all of the foregoing reasons, the
judgments of the district court are
AFFIRMED.
