Jay Wilson appeals his conviction and sentence in the federal district court for drug charges related to a conspiracy to import, distribute, and possess MDMA (ecstasy). The district court rejected, prior to trial, Wilson’s claim that the government had promised him complete immunity in return for his cooperation in dismantling the international conspiracy in which he was involved; and at his sentencing, the court denied him credit for acceptance of responsibility. Because the district court’s rulings were free of error, we affirm both Wilson’s conviction and his sentence. 1
BACKGROUND
The drug conspiracy for which Wilson was convicted came to the attention of the government in May of 2001, when United States Customs agents in Florida discovered that a box of shampoo bottles arriving from Belgium actually contained hundreds of pills. Investigation revealed that the pills were ecstasy and had been shipped by a main player in the conspiracy, Terrance Fischer.
A task force comprised of agents from various law enforcement agencies delivered the intercepted package to its original addressee, the Tan Machine, a tanning salon in Portland, Oregon, a frequent shipping destination in this conspiracy. The business owner agreed to cooperate with investigators, and he told them that a man named Andre Wegner was scheduled to pick up the package at a storage locker in Portland. Wegner, however, sent Chad Bring to pick up the package. Bring was arrested, and he told investigators about several associates in the drug conspiracy, including Wilson.
During the investigation that followed, agents discovered detailed evidence that placed Wilson in the middle of the conspiracy. Agents discovered that Fischer and Wilson had been close associates for some time prior to the intercepted shipment. When Fischer moved to Amsterdam in January of 2001, Wilson personally helped him rent an apartment and set up a bank account and operations. Fischer shipped load after load of ecstasy pills to the United States, and Wilson bought, sold, and distributed them.
Investigation revealed also that the conspiracy stretched across the country. Wilson distributed ecstasy to others nationwide, selling it at a retail level as well. At one point, Wilson spent more than $20,000 to charter a Lear jet to fly drugs and money across the country. At trial, however, Wilson testified that Fischer and Wegner gave him the money to charter the
Wilson rented a storage locker for the purpose of storing the drugs. When the conspiracy began to unravel and some co-conspirators were arrested, Wilson, in a last ditch effort to shift the operations and avoid detection, cleaned out the storage locker and opened a mailbox in Salem, Oregon. At trial, Wilson conceded that using the mailbox to assist the drug operation was wrong, but he claimed that he had a friend rent it for him — not so that Wilson could do “anything illegal,” — but to communicate with Fischer about the situation in the United States. According to Wilson, Fischer would send to him $1,000 for each container of ecstasy shipped in return for information. The mailbox, however, was used to receive drug shipments from Europe, which Wilson admitted.
Wilson’s attempts to avoid detection failed. On August 13, 2001, agents armed with a search warrant stopped Wilson about a mile from his house, read him Miranda 2 warnings, explained that they had a warrant to search his house, and took Wilson to his abode. There, after obtaining Wilson’s consent to search, they searched Wilson’s person, his house, and his car.
During the search, agents questioned Wilson about the conspiracy, telling him that they wanted his cooperation to expand the investigation, that they did not think he was the “biggest player,” and that they “didn’t want him.” Agents asked Wilson about his relationship with Fischer, as well as his connection to Wegner and the storage locker. Wilson freely admitted to some of his involvement, explaining how he knew Fischer and Wegner, admitting he had been involved in some drug transactions, and admitting he had rented the storage unit. Wilson, however, refused to answer certain questions about past sales and possession of drugs, saying that he did not want to incriminate himself. During the search and questioning, agents told Wilson that 100 ecstasy pills had been found in his briefcase that was in his car. Wilson denied that he had any pills, saying “I haven’t had a large quantity of pills in months,” and he then asserted his right to counsel.
About twenty minutes after Wilson had asserted his right to counsel, Wilson approached Agent Alexander, an agent from the Drug Enforcement Administration, and asked if he could speak with Alexander in private. 3 Wilson told Alexander and Detective Williams, who was also working on the case, that there was a two-day window of opportunity to receive a shipment of ecstasy from Europe and that if Wilson did not make or receive a phone call, the window would close forever. Wilson then gave agents more detailed information about Fischer and Wegner and agreed to cooperate with the agents. In response to Wilson’s willingness to cooperate, agents told Wilson that his help would be brought to the attention of the prosecutor. However, they informed him that the prosecutor who had authority to negotiate a deal with him was out of town. Furthermore, they explained that it would be up to that prosecutor, not the agents, to negotiate any deal with him.
The next day, the agents delivered telephone recording equipment to Wilson’s house. Fischer called Wilson to confirm the drug shipment, and thereafter, Wilson helped law enforcement intercept several shipments of ecstasy from Europe. While Wilson was assisting the agents, he secretly recorded his conversations with them.
In yet another recorded conversation, Agent Blanchard told Wilson, “If you are charged with anything it’s all going to be stuff that went on before you know[,] this part of the thing.” Wilson responded, “I understand that and that I’m not being charged with anything I’m doing in order to help you guys.” Wilson expressed hope that his earlier conduct would be forgiven as well, to which Agent Blanchard responded, “That is obviously something that you can negotiate with the prosecutors. I’d go ahead and mention it.”
About two weeks after Wilson began assisting the agents, the prosecutor in charge of Wilson’s case returned from vacation, and he met with Wilson and his attorney. At that meeting, the prosecutor acknowledged Wilson’s cooperation and offered him a plea agreement that would include a six-year sentence — a generous offer that would have greatly reduced the duration of Wilson’s possible sentence. Wilson demanded complete immunity and refused to accept the deal. As a result, Wilson was tried, convicted of all but one count, and sentenced to twenty years imprisonment.
DISCUSSION
A. Immunity
1. Standard of Review
Because this is a claimed immunity agreement, ordinary contract principles apply.
United States v. Plummer,
2. Existence of an Agreement
Wilson claims that he is entitled to full immunity because the agents’ conduct and statements created an informal immunity agreement. The government responds that no agreement was ever formed because no one ever offered Wilson immunity.
To support his claim that an offer was made, Wilson points to various statements agents made to him regarding his role in the conspiracy. He was told “we don’t think you’re the biggest player in this”; “you are just a flyspeck in all of this”; “we don’t want you, we just want to take this to the next level”; and “you did a good job.” Wilson claims that these statements led him to believe he would be granted
First, whether Wilson honestly thought he would be granted immunity does not change the character of the agents’ statements. In other words, whatever Wilson may have believed he would be granted, the statements to which Wilson points do not objectively reflect words of offer.
See United States v. Sophie,
Agents repeatedly told Wilson that the agents lacked authority to grant immunity. We do not doubt that Wilson’s active cooperation could have provided the necessary acceptance and consideration had an offer of immunity in exchange for his cooperation ever been made. See Restatement (Second) of Contracts § 50(2) (1981) (“Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.”). But the fatal flaw in Wilson’s claim is elementary — no contract exists without an offer.
The Seventh Circuit faced a set of facts strikingly similar to Wilson’s case in
Sophie.
As in Sophie, Wilson can point to no statement in which anyone offered or promised him immunity. In fact, Sophie was a much closer case. The language the prosecutor used in Sophie at least resembled words of offer, though words ultimately not concrete enough to constitute one. Telling Wilson that he was a small player in a group of conspirators does not even come close. Moreover, in Sophie, no one unequivocally told the defendant that he had, in fact, not been granted immunity. In sharp contrast, Wilson was repeatedly and indisputably told that the agents were powerless to grant it. Agent Blanchard announced, “I sure in hell can’t grant you immunity and you know that.”
Second, to the extent Wilson claims that he subjectively believed that he had been granted immunity, the district court found Wilson’s testimony not credible, for good reason: Wilson’s claim that the agents led him to believe that he would be granted immunity ignores his own statements that demonstrate he knew no one had granted it. When told that he would be charged, if at all, with the crimes he committed before he began to assist the police, he told agents “I understand.” During the course of his cooperation, Wilson told agents that he would not continue to help until he was granted immunity. He expressed his concern to agents that he was “taking a risk” by cooperating and should be granted immunity for all of his conduct. Agents re
B. Acceptance of Responsibility
1. Standard of Review
The district court’s determination of whether a defendant has accepted responsibility is a factual determination we review for clear error.
United States v. Scrivener,
2. No Clear Acceptance of Responsibility
Wilson’s sentencing was governed by the United States Sentencing Guidelines. Under the guidelines, a defendant is entitled to a downward adjustment if he clearly accepts responsibility for all of his relevant conduct.
United States v. Ginn,
In finding that Wilson had not clearly accepted responsibility, the district court stated that Wilson “consistently manipulated facts specifically intended by the defendant to minimize his own involvement. The defendant’s insincere attempts to cooperate with the government did not ‘clearly demonstrate acceptance of responsibility.’ ” The district court’s findings are fully supported by the record, and the court’s determination that Wilson did not clearly accept responsibility was far from clear error; it was entirely appropriate.
Wilson first points out that his going to trial does not preclude him from sincerely accepting responsibility after trial and thus being entitled to the adjustment. Without a doubt, a defendant may assert his right to trial and still be entitled to an acceptance of responsibility adjustment in rare circumstances.
Id.
at 1038-39. But the defendant faces a hurdle when he puts the government to its burden by contesting material factual matters.
See United States v. Bonanno,
To be sure, some facts weighed in favor of a finding that Wilson accepted responsibility. Wilson admitted some, though not all, of his conduct to police when they searched his house, and he cooperated with police after he was caught. Wilson admitted to selling ecstasy. He conceded that he traveled to Europe to help Fischer, and he admitted to renting the storage locker and mailbox.
Nonetheless, four facts weighed heavily against a finding that Wilson clearly accepted responsibility for all of the relevant conduct: (1) his confessions were incomplete and vague; (2) his testimony was
First, as to Wilson’s confessions, Wilson was never completely forthcoming. For example, when Wilson admitted that he helped Fischer move to Europe, he maintained that he did not know why Fischer was moving there. Indeed, he claimed he had no intention of setting up drug operations with Fischer there because, at that time, Wilson thought Fischer was finished with the ecstasy business. Only later, Wilson testified, did he realize that he knew in his heart that Fischer would never get out of the drug business. Days after the move, however, Wilson was receiving shipments of drugs from Fischer. The record belies Wilson’s claim of no knowledge of Fischer’s activities.
Similarly, in describing his early actions in the conspiracy, Wilson testified, “Well, I was involved in early January of 2001 but probably not to the extent that they believe.” In discussing one early transaction at a hotel, Wilson testified that he and Wegner went to the hotel room to sell ecstasy to a man named Scott Graber. According to Wilson, Wegner carried the backpack containing the pills, and Graber rented the hotel room. Wilson, while admitting that he knew a drug deal was happening, tried to minimize his role by admitting to no more than being the driver in that transaction. Graber’s testimony was contrary — Wilson handed Graber the pills.
In connection with a different transaction involving Graber, Graber testified that Wilson sold him 500 pills. Wilson contested that fact at trial, claiming it had been 5, not 500 pills. When he testified about the Lear jet charter, Wilson claimed that he did not know he was transporting pills, only that he knew he was transporting drug money.
These incomplete admissions support the district court’s finding that Wilson consistently attempted to minimize his involvement in the conspiracy. Such attempts to minimize and disclaim responsibility more than support the district court’s determination that Wilson did not accept responsibility.
Scrivener,
The district court’s finding, however, is further supported by Wilson’s unconvincing denial of guilt. Not only did Wilson attempt to minimize his role, but Wilson outright denied conduct for which he was convicted. He claimed at trial and afterward that the police planted 100 ecstasy pills in his briefcase. In fact, he “adamantly denied” that he had those 100 pills, and referred at trial to the pills as the ones “they had planted in my briefcase.” The jury found otherwise, despite his adamant denials, and Wilson was convicted of this conduct.
Second, in addition to minimizing his conduct and denying his guilt, Wilson offered trial testimony that the district court found not credible. As a result, the district court found, and we agree, that Wilson’s testimony was far from a complete acceptance of responsibility. Rather, Wilson’s testimony was a strained attempt to minimize his role in the conspiracy, put the government to its burden of proving factual allegations, and escape prosecution altogether. A defendant, such as Wilson, who takes the stand to claim his complete innocence of some of the charges and offers testimony on his behalf that is not credible does not accept responsibility for his conduct.
Finally, the district court determined that Wilson’s attempts to help law enforcement were not motivated by sincere contrition. This finding is manifestly reasonable; indeed, it seems Wilson’s efforts were an attempt to secure immunity and to
avoid
taking responsibility for any of his conduct, not to accept responsibility for his behavior. Moreover, we have consistently held that where a defendant refuses to admit all of his guilt, his cooperation notwithstanding, a district court may properly deny a downward adjustment.
Id.; United States v. Dhingra,
In both
Mohrbacher
and
Dhingra,
the defendants cooperated extensively with authorities, and neither defendant presented any witnesses at trial.
Mohrbacher,
We note also that Wilson’s cooperation did not go unnoticed, but he refused the fourteen-year reward that was handed to him. As a result of his cooperation, the government offered Wilson a greatly reduced sentence of six years. Wilson refused to accept the offer, demanded complete immunity that the prosecutor would not give, went to trial, and bought himself a twenty-year sentence. His fate at the hands of the government was of his own choice.
CONCLUSION
Because the district court correctly concluded that Wilson had no immunity agreement with the government, we affirm his conviction. We likewise affirm the sentence because Wilson failed to clearly accept responsibility for all of the conduct for which he was convicted.
AFFIRMED.
Notes
. Wilson claims in this appeal that the district court erred when it determined that Wilson was not entitled to a downward adjustment for a minor role in the offense under U.S.S.G. § 3B1.2. This contention does not merit lengthy discussion, and reviewing for clear error, we affirm the district court’s determination that Wilson was not entitled to a minor role adjustment.
.
Miranda v. Arizona,
. In this appeal, Wilson does not claim that his rights under Miranda were violated.