UNITED STATES of America, Plaintiff-Appellee, v. Derrick SMITH, Defendant-Appellant.
No. 15-2005.
United States Court of Appeals, Seventh Circuit.
March 11, 2016
816 F.3d 479
Argued Feb. 26, 2016.
...
So in trying to decide on a sufficient sentence, it‘s not too harsh or too extreme, it does seem to me that there‘s some leeway in the guideline range of 360 months up to life to take into account that the way in which you will be serving your sentence, because of your disability, will be harder on you because of the way in which healthcare is provided.
So I will vary from the 360-month low end and impose a sentence of 330 months, which is a variance that I think is warranted under
On this record, we find that the error is harmless. The district court did not rely on the career offender guideline when determining Demond‘s sentence. Additionally, the focus of the district court‘s analysis was the guidelines range of 360 months to life, which was not affected by the error. It is apparent to us that had the guidelines range been properly calculated, the sentence would have been the same. We do note, however, that had the district court relied on Demond‘s career offender status when choosing the appropriate sentence, the error would not have been harmless even though the guideline range would have been the same.
III. CONCLUSION
For the reasons stated, we AFFIRM Brandon Lomax‘s conviction and sentence and Demond Glover‘s conviction and sentence. We VACATE Anthony Lomax‘s conviction and remand for a new trial.
Michael T. Donovan, Marsha A. McClellan, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Derrick Smith, Dolton, IL, pro se.
Samuel E. Adam, Attorney, Victor P. Henderson, Attorney, Henderson Adam, LLC, Chicago, IL, for Defendant-Appellant.
EASTERBROOK, Circuit Judge.
In March 2011 Derrick Smith was appointed to the Illinois House of Representatives to complete an unfinished term. He wanted to be elected in his own right, which meant that he had to campaign in his party‘s primary, set for March 2012. One of his campaign assistants, known to Smith as “Pete,” alerted the FBI that Smith might be corrupt. Pete (whose last name has been kept confidential) began recording some of his conversations with Smith. At the FBI‘s suggestion, Pete told Smith that a woman who lived in his district would provide $7,000 (money that would help Smith pay his campaign staff) if Smith wrote a letter supporting her application for a grant from the state‘s Capital Development Board for the construction of a daycare center. This was a sting; there was no such woman, and the money would come from the FBI.
Letters of recommendation from one public official to another are common and lawful—unless paid for. The exchange of an official act for money violates federal law, no matter how the recipient uses the cash. See, e.g., Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991); United States v. Blagojevich, 794 F.3d 729 (7th Cir.2015). Smith wrote the letter, and Pete handed over $7,000. Smith immediately used some of the money to pay his campaign staff; a search of his home turned up the rest.
At Smith‘s trial for violating
The sole argument Smith makes on appeal is that, with Pete not in court, the use of his recorded statements violated the Confrontation Clause of the
The Confrontation Clause, by contrast, affects only “testimonial” statements. See, e.g., Ohio v. Clark, — U.S. —, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Indeed it covers only a subset of testimonial hearsay. Statements that would have been admissible at common law in 1793 (in other words, statements that are not hearsay or are covered by longstanding exceptions to the hearsay doctrine) are outside the
The district judge admitted Pete‘s recorded statements after concluding that they helped to put Smith‘s recorded statements in context. Smith maintains that Pete‘s statements do more than put his own in context—and that even if just used for context they are inadmissible because Pete said much more on the recordings than Smith did. It is easy to find statements in judicial opinions discussing whether statements have been used for “context” and commenting on the relative length of different speakers’ statements, but those observations must not be understood to displace the legal standards—for hearsay whether the out-of-court statement is offered for truth, and for the Confrontation Clause whether the out-of-court statement is testimonial.
To see this, consider a simple hypothetical. “Pete: I will pay you $7,000 in exchange for a letter my client can use to seek a grant for a daycare center. Do you agree? Smith: Yes.” In this example, Pete utters 25 words to Smith‘s one—but there is no hearsay because Pete‘s statement is not used to show that anyone will pay $7,000. It is used instead to show the meaning of Smith‘s “yes,” which does not depend on whether Pete was speaking truthfully. The “yes” constitutes Smith‘s agreement to exchange money for an official act. Pete‘s statements may put Smith‘s “in context,” but that‘s unimportant. What matters is that, without being used for their truth, they enable the jury to determine the import of Smith‘s own words. Allowing the jury to hear Pete‘s
Now consider a different example, “Pete: Last week I paid you $7,000 for a letter that my client will use to seek a grant for a daycare center. Do you remember? Smith: Yes.” This has the same 25-to-1 ratio of words, and it too could be said to show the context of Smith‘s reply. But this statement would be hearsay, because it would be relevant only if Pete spoke the truth—that he had paid $7,000 in exchange for a letter. Once again it would be best to tackle the dispositive questions directly rather than be sidetracked into word counts or a search for “context.” Even the briefest testimonial out-of-court statement—e.g., “Smith shot Jones“—can violate Rule 801 and the Confrontation Clause, no matter its effect on the context in which to place hearers’ responses.
We looked through the record to determine whether Pete‘s statements (and those of other persons heard on the recordings) were offered for their truth. Here is one exchange that Smith has selected as an example:
[Pete]: The broad is fixin’ to give.
Smith: I got you, mother fucker. I told your ass, I got you.
[Pete]: For real, look. The broad is gonna give seven thousand, with no problem.
Smith: Okay.
Pete‘s statements in this exchange are admissible. They were not offered for their truth—that is, to show that someone was going to pay Smith. The “broad” did not exist, and the FBI did not plan to let Smith keep the money. Instead Pete‘s statements were used to show what Smith himself understood the transaction to entail.
Here‘s another exchange to which Smith objected:
[Pete]: You ready, you ready to write?
Smith: Yeah I got it.
Once again Pete‘s statement was not offered for the truth of anything, though it does tend to show the meaning of Smith‘s “I got it.” No hearsay here.
It would not be helpful to run through all of the other exchanges. They are similar to these. Smith has not been convicted on the basis of hearsay, or of out-of-court testimonial statements. Smith‘s own words and deeds convicted him.
AFFIRMED