The Ho norable Ann D. Montgomery, United States District Judge for th e 1 District of Minnesota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1748

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Russell Francis Chevre, * * Appellant. *

___________ Submitted: June 11, 1998 Filed: July 15, 1998

___________ Before BEAM, ROSS, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.

Russell Chevre appeals from his conviction and sentence for possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a). Chevr e argues that the district court erred in refusing to compel the government to identify a 1 confidential informant, refusing to suppre ss an incriminating statement, and refusing to grant a downward departure for acceptance of responsibility. We affirm.-2- I.

In late summer of 1996, Agent Timothy J. Shanley, then a Special Agent for the Minnesota Bureau of Criminal Apprehension (BCA), began investigating Chevre fo r viola tions of Minnesota state law. In early October 1996 a confidential reliabl e informant (CRI) ap proached Shanley and informed him that Chevre had asked the CRI to distribute methamphetamine. On October 11, 1996, the CRI t old Shanley that Chevre intended to deliver between eight ounces and one pound of methamphetamine to th e CRI. Shanley and other state officers then set up surveillance at the proposed meeting site. Although Chevre arrived at the designated location, the CRI did not appear and did not c omplete the drug transaction. As Chevre attempted to leave, Shanley instructe d members the surveillance team to arrest him. Shanley 's team seized approximately eight ounces of methamphetamine and approx imately $5000 in cash from Chevre. They read Chevre his Miranda

rights and transported him to the Ramsey County Jail.

On Oct ober 12, 1996, Shanley visited Chevre at the Ramsey County Jail fo r approximately ten minutes . Shanley did not repeat the Miranda warning, but discussed th e possibility of Chevre cooperating with Shanley in an ongoing investigation. When Shanley left, he gave his business card to Chevre so that Chevre could call him. Chevre was released later that afternoon, pending further investigation.

On October 14, 1996, Chevre called Shanley and met with him at the BCA

. Shanley gave Chevre another Miranda warning and recorded their subsequen t discussion. During this post

- Miranda warning discussion, Chevre admitted that he was carrying approximately eight ounces of meth amphetamine and $5800 in cash at the time of his arr est. Chevre told Shanley that he obtained the methamphetamine from Miguel Navarro, a man that he met at the beginning of the summer of 1996. Chevre admitted that he had p urchased multiple-ounce quantities of methamphetamine from Navarro on eight to ten differ

ent occasions before Chevre's arrest. Navarro charged Chevre $1000-3-

per ounce of methamphetamine, and Chevre al ways resold the methamphetamine on the street. After the discussion concluded, Chevre did not cooperate further with Shanley.

Four months later, in February 1997, Shanley was assigned to a federal Dru g En forcement

Agency Task Force. On August 20, 1997, Chevre was indicted by a federal g rand jury with one count of possessing with intent to distribut e metham phetamine on October 11, 1996. Both prior to and during trial, Chevre moved to compel the government to disclose the identity of the CRI. Ch evre also filed a motion to suppress his statement given to Shanley on October 14, 1996. The district cour t denie d Chevre's motions. At trial, Chevre did not testify, but his counsel argued tha t Chevre was entrapped by the CRI. Thejury ultimately convicted Chevre, and the court
se ntencedhim to ninety-seven months imprisonment. When sentencing Chevre, th e court refus ed to grant him a downward departure under U.S.S.G. § 3E1.1(a) fo r acceptance of responsibility. Chevre now appeals.

II.

Chevre first argues that the district court abused its discretion in denying hi s motion to compel disclosure of the CRI's identity. We disagree.
This Court reviews the district court's decision to deny C hevre's motion to compel disclosure of the CRI for an abuse of discretion. See United States v. Fairchild , 12 2 F

. 3d 605, 609 (8th Cir. 1997), cert. denied , 118 S. Ct. 1086 (1998). Chevre bears the burden of demonstrating a need for the disclosure, see United States v. Moore , 129 F.3d 989, 99 2 (8th Cir. 1997), cert. denied , 118 S. Ct. 1402 (1998), and petition for cert

. filed , (Mar. 10, 1998), and disclosure is typically not required when the informan t "mer ely convey[s] information to the government but neither witness[es] no r participat[es] in the offense." United States v. Harrington , 951 F.2d 876, 878 (8th Cir. 1991). To obtain disclos ure, Chevre must show that disclosure "would be relevant and-4-

helpful to the defense or essential to a fair trial." United States v. Hayes , 120 F.3d 739, 743 (8th Cir. 1997) (quotations omitted). Beca use "[m]ere speculation fails to meet this burden ," Fairchild , 122 F.3d at 609, Chevre must make some evidentiary showin g demonstrating that the CRI's disclosure would have aided his defense. See United States v. Sy kes , 977 F.2d 1242, 1246 (8th Cir. 1992); see also United States v. Prescott , 125 F.3d 845, 1997 WL 584304, at *2 (2d Cir. 1997) (unpublished) (stating that a "defendant
mus t, at the very least, make some evidentiary showing demonstrating why th e informant's testimony is significant to determining [his] guilt or inn ocence"), cert. denied , 118 S. Ct. 1377 (1998).
Chevre has not articulated any reasons to explain how the CRI's disclosure would have helped him present

an entrapment defense. Indeed, Chevre did not even testify in an effort to substantiate this defense. See United States v. Gonz ales , 606 F.2d 70, 75-76 (5th Cir. 1979) ("While a defendant's silence is not inherently incons istent with a defense of entra pment, such silence cannot provide the grounds for disclosure." (citatio n omitted)). Chevre merely s peculates that the information obtained from the CRI would have been relevant to a presentation of an entrapment defense, but such speculation is insufficient to require disclosure. See Unite d States v. Grisham , 748 F.2d 460, 464 (8th Cir. 1984) (stating that "more than speculation" is required to compel disclosure of an informant); see also United States v. Sharp , 778 F.2d 1182, 1187 (6th Cir. 1985) (per curiam) (d efendant claiming entrapment must introduce evidence of entrapment before government

will be required to disclose informant); United States v. Kerris , 748 F.2d 610 , 614 (11th Cir. 1984) (per curiam) ("The mere allegation of entrapment, however, is not alone sufficient to justify allowing the appellants access to the informant.") ; Gonzales , 606 F.2d at 75 ("Discl osure based upon mere speculation as to the relevancy of an informant's testimony is inappropriate given defendant's burden of production.").

Moreover, here, as in Gonzales , "the record is replete with evidenc e demonstrating [the defendant's] predisposition and willingness to engage in" theWe also note that Chevre's counsel, during oral argument, admitted that he was 2 aware of the CRI's identity before trial and that he had attempted to subpoena the CRI to attend trial. Accordingly, eve n if we were to conclude that the district court abused its discretion in refusing to compel disclosure, the error would be harmless. See United States v. Cochran , 697 F.2d 600, 607 (5th Cir. 1983) (no reversible error wher e defense counsel knew, prior to trial, the informant’s identity); United States v

. Hargrove , 647 F.2d 411, 414 (4th Cir. 1981) (no error where defendant kne w informant’s identity and had worked with informant). -5- charge d crime. Id . at 76. During the several months preceding his arrest, Chevr e purchase d methamphetamine from Navarro on at least eight different occasions. O n each occasion, Chevre purchased a multiple-ounce qua ntity of methamphetamine so that he c ould resell it on the street for a profit. The CRI did not even contact Shanley until October 1996, after Chevre had already been dealing regularly with Navarro.
In sum, Chevre "has presented no evidence that disclosure of the inf ormant's name would have aided his defense." Sykes , 977 F.2d at 1246. Accord ingly, the district court did not abuse its discretion in refusing to compel disclosure of the CRI. 2

III.

Ch evre also contends that the district court should have suppressed hi s incr iminating statement made to Shanley on October 14, 1996. Chevre argues tha t S h anley violated 18 U.S.C. § 3501(c) and Federal Rule of Criminal Procedure 5(a) by failing to timely present him to a federal magistrate judge for an initial appearance after his arrest. This argument is meritless. Chevre was arrested by state officers fo r violations of state law. No federal officers or agents participated in Chevre's arrest or in Shan ley's investigation of Chevre. Therefore, neither Rule 5(a) nor 18 U.S.C. § 3501(c) apply to Chev re's October 1996 arrest and subsequent confession. See United States v. Alvarez-Sanchez , 511 U.S. 350, 358 (1994) (18 U.S.C. § 3501(c)); Unite d S t ates v. Pugh , 25 F.3d 669, 674 (8th Cir. 1994) (18 U.S.C. § 3501(c) and Rule 5(a)).In Newson , the district cour t made a specific finding of fact that the defendant, 3 by presenting the entrapment defense, contended "that 'he committed the offense . . . only for the reason [that] somebody else tricked him into doing it.'" 46 F.3d at 73 4
-6- Moreover, because Chevre's statement was clear ly voluntary, suppressing it would have consti tutederror. See United States v. Clarke , 110 F.3d 612, 615 (8th Cir. 1997)

. Accordingly, the district court did not err in refusing to suppress Chevre's incriminating statement.

IV.

Chevre also argues that the district court erred in refusing to grant a downwar d departure under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. Chevre urges this Court t o ignore his assertion of entrapment, and contends that he should receive thi s departure solely because he admitted to Shanley that he engaged in the conduc t underlying his conviction. We reject this contention.

A defen dant may receive a reduction for acceptance of responsibility if h e "demo nstrates a recognition and affirmative responsibility for the offense and sincer e remorse." U nited States v. Clair , 934 F.2d 943, 946 (8th Cir. 1991) (quotation s omitte d). "Whether to grant a reduction for acceptance of responsibility is for the trial judge to de cide. The district court is in a unique position to evaluate a defendant' s acceptanc e of responsibility." United States v. Newson , 46 F.3d 730, 734 (8th Cir

. 1995). "For this reason, the determination of the sentencing judge is entitled to grea t deference on review . . . ." United States v. Johnson , 879 F.2d 331, 335 (8th Cir. 1989) (quotations omitted).
We have previous ly upheld a district court's refusal to reduce a sentence offense level for acceptance of responsibility when the defendant has argued entrapment. See Newson , 46 F.3d at 734. Despite the fact that Chevre admitted to Shanley that he 3(alteration in original). In this case, the district court did not make any such finding of

fact. -7- possessed with intent to distribute methamphetamine, Chevre's election to argue a n ent rapment

defense--even though dubious and ultimately unsuccessful--clearly show s that h e did not accept responsibility for the crime of conviction. See United States v

. Kirkl and , 104 F.3d 1403, 1405-06 (D.C. Cir.) (defendant alleging entrapment canno t receiv e downward departure for acceptance of responsibility on the sole basis that h e admitted committing the conduct leading to conviction), cert. denied , 117 S. Ct. 185 7 (19 97). We believe that "[w]here a defendant persists in asserting entrapment, sh e cannot also claim acceptance of responsibility." United States v. Simpson , 995 F.2 d 109, 11 2 (7th Cir. 1993); see also Kirkland , 104 F.3d at 1405-06 (when defendan t presents an entrapment defen se, a downward departure for acceptance of responsibility may not rest solely on the basis that defendant admitted perfo rming the acts in question); United States v. Hansen , 964 F.2d 1017, 1021-22 (10th Cir. 1992) ("It is difficult for this Court to envision how the defendant argues th at he affirmatively accepted responsibility for his criminal action w hen throughout the proceedings he maintained that his criminal action was not his fault, but rather, it was the result of government inducement.")

. Because Chevre claimed entrapment, he failed to "demonstrate[] a recognition an d affirmative responsibility for the offense and sincere remorse." Clair , 934 F.2d at 946 (quotati ons omitted). Accordingly, the district court did not err in refusing to gran t Chevre a downward departure for acceptance of responsibility.

V.
For the foregoing reasons, the district court is AFFIRMED in all respects.-8-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.