815 F.3d 347
7th Cir.2016Background
- Freeman and co-defendants were convicted in 2009 for running a drug operation out of Chicago’s Cabrini–Green; convictions included Count 1 (conspiracy), a §924(c) gun count, and several §843(b) phone counts.
- The government knowingly used false testimony by witness Senecca Williams at trial; the district court vacated the conspiracy convictions (Count 1) and this court affirmed in United States v. Freeman.
- The district court left in place convictions on counts that listed the conspiracy as a predicate (gun and phone counts), finding Williams’s false testimony did not materially affect those verdicts.
- At sentencing the court attributed at least 8.4 kg of cocaine base to Freeman based primarily on the trial testimony of Ralph LaSalle (corroborated in part by surveillance, seizures, trash pulls, and other witnesses).
- Freeman submitted an affidavit from David McClinton contradicting LaSalle and sought to call McClinton at the sentencing hearing; the district court declined to credit McClinton over LaSalle and reaffirmed the drug-quantity finding, sentencing Freeman to 164 months.
- On appeal Freeman argued (1) that dismissal of the conspiracy required vacatur of the conspiracy‑based gun and phone convictions, and (2) that the sentencing court violated due process by relying on unreliable testimony and refusing to hear McClinton.
Issues
| Issue | Freeman's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether dismissal of conspiracy (Count 1) required vacatur of related §924(c) gun and §843(b) phone convictions | Dismissal of the conspiracy mandate simultaneous dismissal/acquittal of counts that require the conspiracy as a predicate | Dismissal remedied prosecutorial misconduct but does not automatically negate other convictions if independent evidence supports them | Affirmed: convictions on gun and phone counts stand because ample independent evidence (recordings, surveillance, witnesses, seizures) proved predicate conspiracy beyond reasonable doubt |
| Whether the district court clearly erred in attributing at least 8.4 kg of cocaine to Freeman at sentencing | LaSalle’s testimony was unreliable (convicted felon, self‑interested, vague) so drug‑quantity finding is clearly erroneous | District court credited LaSalle; testimony was specific enough and partially corroborated; district court’s factual finding reviewed for clear error | Affirmed: drug‑quantity finding not clearly erroneous; LaSalle’s testimony bore sufficient indicia of reliability |
| Whether refusal to allow McClinton to testify at sentencing violated due process | McClinton’s testimony was necessary to rebut LaSalle and required an evidentiary hearing | District court considered McClinton’s affidavit and proffer, found his testimony unnecessary given LaSalle’s credible trial testimony; defendant had opportunity to contest | Affirmed: no due process violation; court did not abuse discretion in declining an evidentiary hearing or crediting McClinton over LaSalle |
Key Cases Cited
- United States v. Freeman, 650 F.3d 673 (7th Cir.) (affirming vacatur of conspiracy convictions where prosecution used false testimony)
- United States v. Wilbourn, 799 F.3d 900 (7th Cir. 2015) (explains that vacating a conspiracy count to remedy prosecutorial misconduct does not automatically require vacating related counts absent reliance on the false testimony)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (elements and factfinding principles relevant to sentencing and predicate offenses)
- United States v. Clark, 538 F.3d 803 (7th Cir. 2008) (district court entitled to credit testimony of convicted felons at sentencing for quantity findings)