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 government’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 Elizabeth “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 prosecutors’ 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 subsequently 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 transparent. 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 prosecutors 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 Crabtree, 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 government 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. Gonzalez, 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 suppressed 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. Nevertheless, 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

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.

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 questions 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
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 counsel 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 problem, trying to sort out what it was

we could confirm, whether it was

true or not, whether it even happened 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 counsel. 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. Delaware, 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 information 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 evidence 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 regarding controlled buys made by Kim Franks supports the

issuance of the warrants. Her reliability was not in question. 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