United States v. Bernard Foster
2012 U.S. App. LEXIS 24410
| 7th Cir. | 2012Background
- Foster sold crack cocaine to a paid confidential informant (CI) across four controlled buys in 2009, all monitored and recorded; CI was a relative and felon.
- Agents provided funds, a scale, and recording devices; surveillance monitored the buys and debriefings followed each transaction.
- Crack cocaine from the CI’s purchases weighed approximately 54.9 g, 57.6 g, 64 g, and 61 g respectively; all were analyzed and confirmed as cocaine base.
- Foster was charged with multiple counts under 21 U.S.C. § 841; a superseding indictment added Count Five (firearm) and targeted counts were tried in November 2009.
- The district court denied defense requests related to the CI’s testimony and later sentenced Foster to concurrent 240-month terms and 10 years’ supervised release; on appeal, Foster challenges evidence admissibility, missing witness instruction, and Fair Sentencing Act handling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause and CI recordings admissibility | Foster contends CI’s out-of-court statements are hearsay and violate Crawford. | Admitting recordings violated the Confrontation Clause and used the CI as a witness via non-testimonial statements. | No Confrontation Clause error; statements framed as context for Foster’s own admissions and accompanying limiting instructions. |
| ATF agents’ testimony tied to CI statements | Agent testimony is equivalent to introducing non-testifying CI statements. | Agents’ testimony is based on personal observations, not hearsay. | Not error; agents’ testimony reflected personal observations and actions, not out-of-court CI statements. |
| Missing witness instruction denial | CI’s likely testimony would be non-cumulative and within government’s power to produce. | District court abused discretion by denying instruction. | District court did not abuse discretion; CI was not peculiarly within government’s power to produce. |
| Fair Sentencing Act (FSA) application | District court erred by not applying FSA penalties to sentencing. | Error harmless; court would have imposed same sentence regardless of FSA. | Harmless error; remand unnecessary because district court explicitly stated it would impose the same sentence under either regime. |
| Overall sufficiency of evidence and procedural posture | Conviction supported by controlled buys and corroborating conduct. | Challenged evidentiary rulings and § 851 enhancement. | Conviction and sentence affirmed. |
Key Cases Cited
- Schalk, 515 F.3d 768 (7th Cir. 2008) (definitive limine ruling preserves issue; waiver principles apply)
- Pittman, 319 F.3d 1010 (7th Cir. 2005) (explicit withdrawal of objection waives appeal)
- Cooper, 243 F.3d 411 (7th Cir. 2001) (withdrawn objections can waive review)
- Bermea-Boone, 563 F.3d 621 (7th Cir. 2009) (Confrontation concerns when statements are not for truth)
- Tolliver, 454 F.3d 660 (7th Cir. 2006) ( Crawford context apply to hearsay issues)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (cores of Confrontation Clause against testimonial statements)
- Van Sach, 458 F.3d 694 (7th Cir. 2006) (contextual use of recordings not hearsay when not offered for truth)
- Gaytan, 649 F.3d 573 (7th Cir. 2011) (CI recordings used for context, not truth)
- Rollins, 862 F.2d 1282 (7th Cir. 1988) (immunization and witness availability considerations)
- Dorsey v. United States, 132 S. Ct. 2321 (S. Ct. 2012) (FSA penalties apply to offenses sentenced after effective date)
- AbbAs, 560 F.3d 660 (7th Cir. 2009) (harmless error when same sentence would be imposed)
- Anderson, 517 F.3d 953 (7th Cir. 2008) (harmless error standard in sentencing)
- Hill, 645 F.3d 900 (7th Cir. 2011) (harmless error analysis in sentencing)
- Zahursky, 580 F.3d 515 (7th Cir. 2009) (parallel results in sentencing)