UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES R. WINBUSH, JR., Defendant-Appellant.
No. 08-1602
United States Court of Appeals For the Seventh Circuit
Argued April 14, 2009—Decided September 1, 2009
Philip P. Simon, Judge.
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:05 CR 76
KANNE, Circuit Judge. James Winbush is a drug dealer, and he was caught red-handed plying his trade. Police watched as Winbush sold crack cocaine to a confidential informant, after which Winbush brandished a handgun and fled his vehicle. A jury convicted Winbush of five federal crimes, and he now challenges both his conviction and his sentence. Despite the commendable and zealous advocacy of his appointed appellate counsel, we find no merit to Winbush’s challenges.
On December 20, 2004, the Gary Police Department staged a contrоlled purchase of over five grams of crack cocaine from James Winbush. Police followed Kenneth Jones, a police informant, as he parked his vehicle on the 2300 block of Kentucky Street in Gary. Winbush arrived in another vehicle moments later, and police observed what appeared to be a narcotics transaction. Their suspicions were confirmed when Jones returned to the police station with 5.8 grams of cocaine base.
Police tailed Winbush and a passenger after they left the scene and pulled them over approximately two blocks from where the drug deal had occurred. As officers approached the vehicle, they saw a gun in Winbush’s right hand, pointed upward. Winbush shoved his passenger, Timothy Frazier, out the side door, then fled through the same door. Frazier stayed on the ground, as the police had commanded, and was taken into custody. Police found 288 grams of marijuana in a bag on Frazier’s chest. Frazier later testified that Winbush told him, “I might need you to run with this,” and left the bag as he fled.
Police chased Winbush and caught him on the 2300 block of Kentucky Street, near where he had just sold crack to Jones. Officers struggled with Winbush but ultimately subdued and arrested him. Police noticed that he was no longer wearing the stocking cap and distinctive black and white leather jacket that hе had on when he fled his vehicle. Nor did Winbush possess a firearm. Winbush, however, did have $900 in cash, $200 of which
Following footprints in the snow, police retraced their path of pursuit, particularly concerned with finding Winbush’s firearm. They recovered much more. In the 2300 block of Tennessee Street, one block to the east of Kentucky Street, police recovered five clear knotted plastic bags containing what analysis later revealed to be 9.3 grams of crack cocaine (the “Tennessee crack”). In the 2300 block of Kentucky Street, they found Winbush’s leather jacket, which contained a .40-caliber Ruger handgun and a plastic bag holding 20.2 grams of crack cocaine in fifty-two separate baggies (the “Kentucky crack”). Finally, near Winbush’s vehicle, police found the stocking cap that he was wearing when he fled.
The second superseding indictment against Winbush1 charged him with one count of distribution and one count of possession with the intent to distribute five grams or more of cocaine base, see
After various pretrial motions and multiple continuances, the district court scheduled Winbush’s trial for November 13, 2007. On October 3, 2007, the government
At the final pretrial conference on November 2, 2007, the government and Winbush informed the magistrate judge that they would stipulate to Shay’s testimony. The government also discussed the other expert testimony, and Winbush informed the magistrate judge that he would present no expert witnesses at trial.
On November 8, six days after the pretrial conference and only five days before trial, Winbush filed five additional motions. Among these were a Motion for Fingerprint Identification Expert and a Motion to Continue. Winbush requested a fingerprint expert “to examine the submitted itеms of physical evidence, and if no latent fingerprints are present, to testify as to its meaning.” The magistrate judge denied this motion, stating that “on the
At trial, the government introduced testimony from law enforcement involved in Winbush’s investigation and arrest, as well as the expert testimony discussed above. The government read Shay’s stipulated testimony: that “no latent prints of value were detected” on various pieces of physical evidence found at the scene of Winbush’s arrest. The government then called Deputy Commander Reilly, who explained that the ability to recover latent prints often depends on a variety of factors, such as the weather and the surface of the item, and it would be possible for a person to touch something and leave no identifiable prints. Reilly stated that it is “probably more than the norm” to find no identifiable prints on a handgun. Finally, the government called Special Agent Becker, who testified about the methods and practices of drug traffickers. Specifically, Becker, who had no knowledge of the facts of Winbush’s case, opined that possession of, respectively, 288 grams of marijuana, 9.5 grams of crack cocaine, and 20.2 grams of crack cocaine, indicated that the drugs were meant for distribution rather than personal use.
On November 15, 2007, the jury found Winbush guilty on all five counts. Prior to sentencing, a probation officer prepared a presentence investigation report (PSR), which recommended that Winbush be held accountable for 288 grams of marijuana and 35.3 grams of crack
Thе probation officer also assigned Winbush eleven criminal history points, based in part on two prior Indiana drug convictions. In both instances, Winbush was sentenced to work release: in 1999, he received a one-year sentence, and in 2001, he received a three-and-one-half-year sentence. The PSR characterized these as sentences of “imprisonment” under
At sentencing, the district court adopted the PSR’s calculations. Winbush did not object to the quantity of drugs attributable to him, nor to the criminal history calculation. The district court assigned a total offense level of twenty-eight and a criminal history category of V, resulting in a Guideline range of 130-162 months’ imрrisonment. The court sentenced Winbush to 140 months’ imprisonment on the three drug possession and distribution counts, to run concurrently with a 120-month sentence for possessing a firearm as a felon. The court also sentenced Winbush to 84 months’ imprisonment for possessing a firearm in furtherance of a drug trafficking offense, to run consecutively with his other sentences, giving Winbush a total sentence of 224 months.
II. ANALYSIS
Winbush raises three issues on appeal: (1) whether the district court erred by denying his motion to retain a fingerprint expert; (2) whether the court properly admitted Agеnt Becker’s expert testimony; and (3) whether the court erred in calculating Winbush’s base offense and criminal history levels. We address each issue separately.
A. Fingerprint Expert
On November 8, 2007, five days before his trial was set to begin, Winbush filed a motion requesting funds for a fingerprint expert. The magistrate judge denied Winbush’s motion as untimely, a decision that Winbush now claims was improper. We review for an abuse of discretion the district court’s denial of Winbush’s request for expert services, see United States v. Smith, 502 F.3d 680, 686 (7th Cir. 2007); United States v. Daniels, 64 F.3d 311, 315 (7th Cir. 1995), but we review for clear error a trial court’s decision that a pretrial motion was untimely, United States v. Salahuddin, 509 F.3d 858, 860 (7th Cir. 2007). Not only was the court within its authority to deny Winbush’s motion as untimely, but we find that a fingerprint expert was unnecessary for his defense.
To say that our trial courts are busy would be an understatement; we have frequently used the term “overburdened.” See, e.g., United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000); United States v. Wilson, 73 F.3d 675, 701 (7th Cir. 1995) (Coffey, J., dissenting). As a result, “‘[d]istrict court judges, because of the very nature of the duties and responsibilities accompanying their position, possess great authority to manage their caseload.’” United States v. Coronado-Navarro, 128 F.3d 568, 572 (7th Cir. 1997) (quoting United States v. Reed, 2 F.3d 1441, 1447 (7th Cir. 1993)). It is well settled that issues of trial management are left to the district judge, and “we intervene only when it is apparent that the judge has acted unreasonably. The occasions for intervention are rare.” Brooks v. United States, 64 F.3d 251, 256 (7th Cir. 1995) (quotations omitted).
We first note that the district court had already granted Winbush significant leeway before he filed five pretrial motions on November 8, 2007. In his order denying Winbush’s last Motiоn to Continue, the magistrate judge stated that the court had already granted Winbush seven continuances. The magistrate judge informed Winbush in its July 12, 2007, order granting an earlier continuance that “no further continuances [will] be granted in this matter absent extraordinary circumstances.” Nevertheless, the magistrate judge granted another continuance on October 10, 2007, and set his trial date for November 13.
With this as context, a brief timeline reveals that the magistrate judge properly deemed Winbush’s motion to be untimely. On October 3, 2007, the government filed
Winbush presented no good reason for his delay. On appeal, he claims that “the timing of [his] motion may have been a function of his learning, on the eve of trial, that he would not have the opportunity to cross-examine Shay, and therefоre required his own expert.” But Winbush stipulated to Shay’s testimony at the pretrial conference on November 2, something he should not have done if he wanted to cross-examine Shay. Furthermore, Winbush’s primary challenge on appeal is that he was unable to rebut Reilly’s expert testimony, not Shay’s, which merely stated that he found no fingerprints of value on the physical evidence. Winbush received notice of Reilly’s testimony on October 3, more than a month before he filed his pretrial motions, yet he does not explain this delay.
Even more astounding is Winbush’s claim that the government failed to provide adequate notice of the
Winbush had ample time between October 3 and November 8 to request funding for a fingerprint expert. We have no difficulty determining that the magistrate judge properly characterized his motion as “woefully late.” But, even if it were timely, his motion faced a much higher hurdle.
2. Necessity of a Fingerprint Expert
In his motion for expert services, Winbush claimed that a fingerprint expert was necessary to examine the physical evidence, and, “if no latent fingerprints are present, to testify аs to its meaning.” On appeal, he asserts that, without such assistance, he was deprived
Under the Criminal Justice Act, an indigent defendant may request that the court provide him access to expert services that are “necessary for adequate representation.”
Given the facts of this case, the district court did not abuse its discretion in denying Winbush’s request for a fingerprint expert. Winbush had no plausible defense that would have rendered such an expert necessary. The evidence against him was overwhelming, and he needed no expert to explain that the absence of finger-
Winbush also claims that the government’s case “rest[ed] heavily on a theory most competently addressed by expert testimony,” citing United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006). We disagree. Although the presence of fingerprints is often central to a defendant’s conviction, see, e.g., United States v. Patterson, 724 F.2d 1128, 1130-31 (5th Cir. 1984), in this case Reilly’s testimony explained the absence of fingerprints. This testimony was meаnt to overcome a fact favorable to Winbush and was in no way the crux of the government’s case—a case that rested heavily on overwhelming evidence of Winbush’s guilt, including testimony from multiple eyewitnesses and a glut of physical evidence found at the scene of Winbush’s attempt to flee from police.
Finally, contrary to Winbush’s argument,
B. Special Agent Becker’s Expert Testimony
Next, Winbush asserts that the district court improperly admitted expert testimony from Special Agent Mark Becker. Winbush did not object to Becker’s testimony at trial, and we therefore review the district court’s admission of his testimony for plain error.3 See United States v. Recendiz, 557 F.3d 511, 522 (7th Cir. 2009). We will reverse only if the error compromised the defendant’s substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Blount, 502 F.3d at 678.
1. Federal Rule of Evidence 702
Winbush’s first challenge is that Agent Becker testified about attributes of drug trafficking that were irrelevant to his alleged conduct. Under
We find no error in admitting Becker’s testimony. Winbush is correct that not every piece of Becker’s testimony applied directly to this case. But Becker’s comments were general in nature, and he expressly stated during both direct and cross-examination that he knew nothing about Winbush’s case. Furthermore, much of Becker’s testimony that Winbush now challenges came in response to the government’s foundational questions regarding his professional background and experience. For instance, he testified that he worked with a task force focused on stemming violent and gang-related crime in Gary. Contrary to Winbush’s claims, this testimony came nowhere near the level of “gang affiliation evidence” that we found improper in United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996), in which the government introduced evidence that the defendant was a member of a motorcycle gang to show that he was more likely to have distributed drugs. Here, Becker never testified that Winbush was a member of a gang, nor did his testimony suggest it. In fact, he never mentioned Winbush’s name during his testimony.
Likewise, Becker’s testimony regarding crack cocaine production assisted the jury in understanding the
Of course, we recognize the potential danger of undue prejudice that can result from expert testimony about the practices of drug dealers, see Foster, 939 F.2d at 452, but our independent review of the record assures us that Becker’s testimony stayed within the bounds of Rule 702. And even if Becker strayed slightly into forbidden territory, any error in admitting irrelevant testimony did not prejudice Winbush. As we have already noted, the evidence of Winbush’s guilt was overwhelming.
2. Federal Rule of Evidence 704(b)
Winbush’s argument that Becker’s testimony violated Rule 704(b) suffers a similar fate. He argues that the testimony’s “extreme over-inclusiveness was, for all intents and purposes, tantamount to stating an opinion or inference that Winbush” intended to distribute narcotics. We find nothing in Becker’s testimony to support such a conclusion.
Although an expert may not testify or opine that the defendant actually possessed the requisite mental state, he may testify in general terms about facts or circumstances from which a jury might infer that the defendant intended to distribute drugs. See Mancillas, 183 F.3d at 706; United States v. Lipscomb, 14 F.3d 1236, 1239-40 (7th Cir. 1994); United States v. Brown, 7 F.3d 648, 654 (7th Cir. 1993). Such testimony is properly admitted as long as it is clear “‘that the opinion is based on the expert’s knowledge of common criminal practices, and not on some special knowledge of the defendant’s mental processes.’” Mancillas, 183 F.3d at 706 (quoting Lipscomb, 14 F.3d at 1242). An important factor in determining whether an expert violated Rule 704(b) is the degree to which the expert refers to the specific defendant’s intent, id., and expert testimony is proper as long as it
Becker’s testimony did not violate Rule 704(b). Most importantly, Becker never mentioned, or even alluded to, Winbush’s actual intent to distribute drugs. To the contrary, he told the jury on multiple occasions that he was unfamiliar with this case. His testimony focused exclusively on his knowledge of common criminal practices, and he addressеd facts presented by the government that helped the jury distinguish a drug distributor from a user. For example, he testified, without reference to Winbush, that possession of 9.5 grams of crack cocaine suggests an intent to distribute the drugs: “[I]n my experience, I’ve never come across a user on the street who had almost ten grams of crack cocaine in their possession. That, from my perspective, would be someone who we would want to investigate as a trafficker.” When asked about possession of 20.2 grams of crack, packaged in fifty-two separate bags, he replied, “[T]hat is distribution level. That is not user level.” We have upheld the use of hypothеtical drug quantities during similar expert testimony, see, e.g., Mancillas, 183 F.3d at 705-06 (upholding statement by expert witness that 400 grams of marijuana, found in a plastic bag, was likely being held for distribution), and we see no error in Becker’s testimony.
Even Winbush cannot point to a direct statement of his intent in Becker’s testimony; instead, he argues that Becker’s testimony “created the impression that Winbush was a drug dealer.” Of course Becker’s testimony created
C. Sentencing Challenges
Finally, Winbush challenges his sentence on two separate grounds: that the district court improperly calculated (1) the quantities of drugs attributable to him, and (2) his criminal history level. We review the court’s factual determinations, including the amount of drugs attributable to the defendant, for clear error. United States v. Strode, 552 F.3d 630, 633 (7th Cir. 2009); United States v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008). A factual finding is clearly erroneous if “we are left with a definite and firm conviction that a mistake has been committed.” United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008) (quotations omitted). We review de novo the district court’s application of the United States Sentencing Guidelines. Id. at 837. We find both of Winbush’s arguments unpersuasive.
1. Drug Quantity Calculation
We can dismiss Winbush’s first argument relatively quickly. The district court accepted the PSR’s recommendation that Winbush be held responsible for 288 grams of marijuana and 35.3 net grams of cocaine base—the sum
First, Winbush did not object to the probation officer’s drug quantity calculations, nor did he challenge the base offense level imposed by the district court. In the absence of an objection, a district court may typically rely on a probation officer’s recommendations in a PSR. See United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007) (“When the court relies on information contained in the PSR at sentencing, it is the defendant’s burden to show that the PSR is inaccurate or unreliable. When a defendant has failed to produce any evidence calling the report’s accuracy into question, a district court may rely entirely on the PSR.” (citations and quotations omitted)).
Second, Winbush characterizes his challenge as one involving “uncharged or unconvicted relevant conduct,” but, unlike the cases he cites, he was charged for possessing, with the intent to distribute, the drugs that formed the basis of his sentence. Specifically, the indictment included a separate count charging Winbush with possessing with the intent to distribute marijuana, which covers the 288 grams the district cоurt attributed to him. The indictment also charged him with possessing with the intent to distribute more than five grams of crack cocaine,
Winbush now argues that either quantity of crack, alone, would have satisfied the charge in the indictment, and it is therefore impossible to determine which amount formed the basis of his conviction. Even if we accept his contention, however, the “Tennessee crack” would have qualified as related conduct. See
It was clear from the facts of this case, including those articulated in the PSR and adopted by the district court,
2. Criminal History Calculation
Winbush also claims that the district court erred in calculating his criminal history level. The court adopted the probation officer’s recommendation that Winbush receive eleven criminal history points. This included two points for a 1999 state conviction for possession of cocaine, for which Winbush was sentenced to one year of work release, and threе points for a 2001 state conviction for possession of controlled substances, for which he was sentenced to three-and-one-half years of work release. Winbush claims that neither of the prior work release sentences was “imprisonment” under
The Sentencing Guidelines assign three criminal history points for a prior sentence of imprisonment exceeding one year and one month,
We have noted that an important factor in determining whether a sentence is one “of imprisonment” is the extеnt to which the defendant was physically confined. See United States v. Timbrook, 290 F.3d 957, 959 (7th Cir. 2002); see also United States v. Morgan, 390 F.3d 1072, 1074 (8th Cir. 2004) (“Physical confinement without being free to leave is a key factor in determining whether a sentence is one of incarceration.”). In Timbrook, we held that a prior sentence of work release in a county jail was a “sentence of imprisonment” under
In 1999, Winbush was sentenced to one year of work release with the Lake County Sheriff’s Work Release Program. Winbush relies on a description of the Program found on Lake County’s website and a newspaper article indicating that the Program is housed in a former hospital—neither of which are in the record itself. This is well short of what would be necessary to establish that a defendant sentenced to this Program is free to leave, that the facility is not secure, or that the Program is more akin to a halfway house than a prison.5 Winbush has not established that the district court clearly erred by assigning two points for his 1999 sentenсe.
Because the district court properly calculated Winbush’s base offense level and his criminal history level, its sentence was proper and must stand.
III. CONCLUSION
We find no errоr in Winbush’s conviction or sentence, and we AFFIRM both.
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