*1 report to an im- Bejjani requirement officer.
migration America, STATES of
UNITED
Plaintiff-Appellee, HARRIS, Defendant-
Marcus L.
Appellant.
No. 00-3884. Appeals, Court of
United States
Seventh Circuit. April 2001.
Argued
Decided Nov. 2001. *3 Ehrenberg & (argued), Norris
Scott Frost, IL, Defendant-Appel- Chicago, for lant. (ar- Hulin, Risley David E.
Frances C. Atty., Springfield, gued), Office of U.S. IL, Plaintiff-Appellee. for MANION, COFFEY, Before WOOD, Judges. DIANE P. Circuit COFFEY, Judge. Circuit appeals The defendant Marcus Harris powdered cocaine selling his conviction for Ill., November city Springfield, 11, 1998, in violation of 21 U.S.C. 841(a)(1). guilty § A found Harris and he was sentenced to 360 charged years supervised imprisonment, six months release, special and a assessment. $100 conviction, Harris appeal direct of his On closing argu- argues improper commentary on included ment testify, courtroom behav- his failure to ior, of the burden of and misstatements the trial proof, and he also claims should not have judge importance admitted evidence to Harris that if any one of his uncharged drug transactions. af-We slipped up customers drugs mentioned firm. or failed to system, use the code Harris would terminate the conversation. Young
I. BACKGROUND also testified about Harris’ usual modus In early agents federal and local operandi money transfer of police Ill., in Springfield, received delivery informa- drugs. pay- insisted on tion from several informants confidential sale, ment advance any drug and he that defendant Marcus Harris was in- would not designate a meeting place for cocaine, volved in the sale of resulting the transfer drugs until payment after becoming subject of a drug *4 been had made. investigation. 6, 1998, On November officers, police
Springfield executing while Young’s B. Drugs Purchase from warrant, a search drugs discovered and Harris drug paraphernalia at the home of a wom- (four On November days after an named Jill Berry Nelson. Levannon drug residence), raid at Jill Nelson’s Young, lengthy record, who had a criminal Young reported to the FBI that he had in present was Nelson’s home at the time arranged drug a deal with Harris and he Young of the raid. had known Harris for was wired for voice recordings at years some 15 purchased and had cocaine 11, 1998, time. On November Young re- from Harris on numerous occasions. telephone a ceived call from sug-
Young agreed to assist in the officers their gesting meeting at a convenience store. investigation of Harris agreed and to make Young proceeded to designated loca- purchase controlled of cocaine while tion, but Harris did appear. recording wired with a device and to testi- While Young home, was on way his he fy truthfully prosecution for the at Harris’ phone Harris, received another call from subsequent trial.1 only Young’s and side conversation was recorded. Drug According A. Dealing Young’s Harris’ Past testi- and the mony explaining recording Language Use of of this con- Code versation, Harris stated that his failure to trial, During Young Harris’ testified that at appear was meeting because he Harris mandated a strict set of rules for a government feared that might informant participating those in drug transac- store,2 be at the convenience spite but in tions. Harris insisted that all conversa- they agreed this fear to meet at the same tions, calls, including telephone be conduct- location. ed in a casual manner and that drugs never be mentioned during any transac- After Young returned the store and tion. Harris Harris, also that Young joined insisted use got two men into personal code language when discussing car again engaged a re- drugs. language The code was of such conversation in which corded Harris stat- Young parole prior 1. drug was on for viola- been motivated his desire to avoid a return prison tions at the to the surrounding. time of the and one confines of a raid stipulations parole agreement provided in his Young explained thought 2. that Harris he had he was not to associate known employee seen the car of a store named (i.e. Harris). criminal Jill Nelson or Marcus charged "Sam” who had recently been in a Young's agreement cooperate could have drug federal case. man, currency, bearing or bills deuce, a reference to you what
ed, with a “I workin’ replied, “I Young to which at portraits. Testimony want to do?” presidents’ Eigh- at? ... where we On want ‘em agent an FBI estab- from trial was, “I’ll do response teenth?” Harris’ designated no street lished that there was just ain’t no better you.... that for There Ill., Springfield, “Eighteenth Street” Young testified than the Pres’dents.” (November 11, the date of the offense as of to “a deuce” that Harris’ reference trial 1998). opinion, the author dissenting In the cocaine and for two ounces of was code testimony with this umbrage takes that, Eighteenth?” was we at? On “Where Eighteenth was an suggests that there lingo question asking Young’s drug fact, the offense.3 In at the time of Street he would sell the two ounces whether redesignated was Eighteenth Street $1,800. that Har- explained further (named) King, Martin Luther Dr. you,” that for meant response, ris’ “I’ll do Drive; City Springfield copy Jr. price, agreed that Harris ordinance, effect, follows: which is still in remark about “the Pres’dents” Harris’ nance, opinion, reproduced body of previously held that "matters of 3. We have *5 years prior the date of the occurred over 14 public city ... ... record such as ordinances case, drug involved in this transaction subjects judicial New proper notice." negligent, years prior to the offhand over 16 Brennan, (7th v. 558 F.2d comb McClain, v. remarks made in United States Creek, Cir.1977); see also Matter Waller 01-1740, WL 1231512 on which the No. Cir.1989) Ltd., 238 n. 14 867 F.2d on the evidence. dissent relies for its assault (taking judicial of ordinances not con notice stating thus incorrect in The dissent is court); Svarczkopf, Allred v. sidered district testifying about the two witnesses in this case (10th Cir.1978) (same); designated gave location at Harris’ trial Co., Bryant Liberty Mut. Ins. testimony stating that "inaccurate” when Cir.1969) (same). The name designated "Eighteenth 579-80 no street there is Springfield, Ill. change Springfield ordi Street" in mandated in *6 majority After the clear support made has position failed its with even copy insertion of of the Springfield City a a scintilla evidence in the record. Rath er, Ordinance designating Eighteenth unprec Street has to the dissent resorted as Dr. Luther King Martin Jr. Drive in citing edented tactic of extrinsic materials 1984, replied gleaned websites, dissent with another conflicting as from Internet time, opinion: articles, sertion this “that in newspaper the negligent re parlance common name old has not marks assistant attorneys United States away” died and that the sprinkled wholly separate evidence on this pleadings point overwhelming “was not so wholly separate of a than case one at majority paints it to be.” an attempt In Capital Corp. hand. GE v. Lease Res Cf. verdict, jury’s undermine the Corp., the dissent olution 1084
696
Cir.1997)
(meaning
price
Eighteenth,”
Pub.
(citing
v. Alabama
Cofield
Comm’n,
$1,800).
still
Serv.
Cir.1991),
proposition
daily-
for the
trial,
during the
Young
At
testified that
evidentiary
newspapers are not reliable
money
count the
ride he saw Harris
Inc.,
sources);
Jacoby-Bender,
Zell v.
a
Young
(Young)
that he
was short
told
(7th Cir.1976)
(declining to
F.2d
previous drug
deal.
hundred dollars from
companion
in a
documents filed
consider
unpaid
Harris stat-
Referring to the
$100
being
involving
parties
the same
case
ed,
my
me
take
tea-
you
“I see
want
judge). Of
by
heard
the same district
out,
tablespoon,”
Young
to which
spoon
course,
were not submitted
these materials
“Man,
nothing out of it
replied,
don’t take
fail
how the
jury,
and we
to see
dollar,
a ...
...
man.
It ain’t nothin’ but
sufficiency
logically
can
attack
dissent
you
Young
see me.”
and I’ll have it when
presented
by point
at trial
of the evidence
taking
that Harris’ reference to
testified
to information that the
never saw
ing
“teaspoon”
“tablespoon” was a
out a
or
Taylor
Kentucky,
or heard.4 See
(Harris) intended to re-
warning that he
478, 485,
56 L.Ed.2d
98 S.Ct.
U.S.
portion
of the cocaine unless
move
small
(1978).
(referred to in
Young repaid the
debt
$100
short,
question
In
there is no
dollar”).
as “a
conversation
extensively discussed
Young and Harris
where he
Young returned
his home
they were
drug
their
transaction while
was searched
Detective Graham
arriving
riding
together.5
in the car
After
he was clean.
money
drugs and
and/or
house, Young went inside and
Young’s
later,
Approximately
Young
five minutes
$1,800
Springfield
from
Police
obtained
Harris,
phone call from
received another
Detective
Graham while Harris re-
James
that he meet him at a local
requesting
in the car. Detective
ob-
mained
Graham
shop.
arrived at the
barber
After
and enter
served
leave
house
area,
ob-
shop parking
agents
barber
car,
turning
money
him
observed
serving
continuing
the area decided that
($1,800)
Harris,
and saw Harris
over
precarious
visual surveillance would be
be-
money
pocket.
in his
The two
put
they might
cause
believed that
be
departed
during
car and
men
*7
spotted. Young’s conversation with Harris
Young
their
recorded conversation
was
shop parking
again
lot
the barber
was
Harris to sell the cocaine for
asking
heard
recorded.
(“what
$1,200
again”),
about twelve
and
(in code)
tape
played during
This
was also
the
replied
negative
Harris
story
you
for
to meet me on trial and revealed that after some social
“the
is
require
abiding Springfield
4.
we
a determination on
residents in November
"The reason
procedure in
record is that we think fair
the
1998.
resolving disputes
adjudicative
calls
facts
giving
party
for
each
a chance to meet in the
unsupported
5. We
that the dissent's
believe
the
appropriate fashion the facts that come to
argument
helpful
the
is less than
enrich-
[through]
tribunal’s attention ...
rebuttal evi-
law,
nothing
opinion
ment of the
and
in this
dence, cross-examination, usually confronta-
litigants
encourage
their
should
future
base
tion,
(either
argument
written or oral or
appellate argument on materials outside the
201(b)
both).”
advisory
commit-
fed.R.Evid.
presented
record and not
to the district court.
(1972).
eminently
tee notes
It is
clear that
Zell,
(citing Paridy
See
Young, there is no reasonable doubt Young got where those Berry about two ounces. prove don’t have to that We the defen- simply There is no other reasonable only possible place Berry dant was the way explain own defendant’s Young could have obtained two ounces Berry statement context do prove cocaine. What we have to in which it was requested from Berry Young did obtain two those transpired on both. events defendant, beyond ounces from added). (Emphasis reasonable doubt.... trial, During the counsel raised defense Berry Young The issue is did obtain objection prosecutor’s one brought these two ounces which he back However, objected statements now to. six Agent from the defendant? Graham later, unexplained, days for reasons prove beyond If we a reasonable and his counsel must have suffered a doubt, guilty. the defendant is That’s change of heart and filed a motion for a the issue. trial, arguing new *9 added). (Emphasis closing argument comments made in his in prosecutor improper. judge, deny- then turned his attention were The trial motion, tape recordings ing to the content of the intro- ruled that the defendant’s prosecutor’s improper duced at trial: comments were not
699
were,
and,
they
Badger,
1443,
if
error was
ed
even
States v.
983 F.2d
(7th Cir.1993).
in
evi-
harmless
view of
overwhelming
in
guilt
dence of
the record.
applying
When
the harmless error
in assessing
impact
doctrine
of an al
II.
ISSUES
leged improper
prosecutor,
comment
appeal,
argues
On direct
that the
an otherwise valid conviction will not be
portions
prosecutor’s closing argu-
finds,
set aside unless the reviewing court
prejudiced
right
ment referred to
to a
whole,
based on the record as a
1)
fair
by: making
trial
indirect references
error likely affected the outcome of the
2)
testify;
making
to Harris’ failure to
Clark,
570, 576,
trial.
Rose
478 U.S.
(courtroom)
references to Harris’ off-stand
3101,
(1986).
S.Ct.
To [the defendant] likely
must show that it is at least complained the misconduct Comments about a failure affected defendant’s i.e., the outcome of the caused the testify necessarily do not mandate re- trial — guilty to reach a verdict of when versal, however. The issue is whether might otherwise it have reached a ver- beyond the error was harmless reason- guilty. dict of not question able doubt. The of whether depends the error was harmless in turn Morgan, United States v. (7th Cir.1997); Renteria, strength against on the of the evidence see also 766; Cusimano, 831; 148 F.3d at Unit defendant.
700 1416, comments on certain “uncontested Ashford, States v. cutor’s
United
(7th Cir.1991)
added,
(emphasis
inter-
they
1425
and stated that
were im
evidence”
omitted).
quotations
nal
citations
and
proper because the statements would nec
interpreted
a
essarily have been
as
com
prosecutor’s
In our review of the
ment on the defendant’s decision not to
improper
we must also
alleged
comments
testify.
disagree.
We
The law is most
take into consideration that Harris failed
any
commentary
clear that
indirect
contemporaneous
specific
a
to raise
and
testify, including
the defendant’s failure to
objection
alleged improper
to the
remarks.
or “uncon
review,
references
“uncontradieted”
preserve
appellate
To
an issue for
testimony,
improp
tested”
in order to be
party
timely
specific
a
a
and
must make
(1)
er,
in
objection,
might
language
order that he or she
must
consist of
and words
opposing party
alert the court and the
“manifestly
that are
intended”
be
specific grounds
objection
for the
on the
comment
defendant’s decision not
during
Vega,
trial.
States v.
860
stand,
in
ánalyzed
to take the
when
Cir.1988).
779,
failure
F.2d
789
The
(2)
used,
context which
or
be
interpose
timely
specific objection
jury
character that the
.such
reviewing
results
our
the statements
“naturally
necessarily
take it to be a
plain
under
error standard. See Fed. comment on the defendant’s
silence.”
52(b); Renteria,
R.Crim.P.
106 F.3d at
Lyon,
United States v.
In
alleged prosecutori
766.
the context of
(7th Cir.1968)
added),
(emphasis
cert. de
misconduct,
al
standard
an
this
mandates
nied,
U.S.
89 S.Ct.
additional burden for the defendant
117;
Flannigan,
L.Ed.2d
United States v.
prosecutor’s
demonstrate that
com
Cir.1989);
F.2d
Ashford,
“obviously”
“clearly”
ments were
or
im
701
by making the
reaches its view
fo dissent
argument
closing
prosecutor’s
of the
the
Harris was
questionable assertion that
reason
accuracy and
only on
cused
have
who could
rebutted
only person
Viewed
Young’s explanations.
of
ableness
fact,
theory.
In
the dissent
government’s
that the
context, we are convinced
in this
transfer
money
forget
to
seems
argument
during
statements
prosecutor’s
($1,800)
was ob-
from
to Harris
in
naturally be
logically
would more
name-
by
third-party-eyewitness,
a
served
commentary on the
as mere
terpreted
Graham,
the fact that
ly Detective
Young’s explanation
trustworthiness
testimony happened to combo-
Graham’s
conversation, contrary to the
taped
description of the transfer
Young’s
rate
could
the statement
view
dissent’s
alter the fact that he could have
not
does
not to testi
Harris’ decision
only refer to
testimony.
“We have
Young’s
rebutted
out that the
pointed
It needs to be
fy.
references to uncontro-
held that
never
court,
reviewing
must
dissent,
as a
sitting
been
evidence which could have
verted
intends an
prosecutor
“assume that
than the
other
someone
controverted
dam
to
its most
remark
have
ambiguous
error.”
will
reversible
constitute
sitting
jury,
defendant
meaning or that
aging
Thieret,
F.2d
v.
Kurina
exhortation, will draw
through lengthy
added).
Cir.1988)
Thus,
(emphasis
less
meaning
plethora
from
other than the defendant
where a witness
gov
for “the
damaging interpretations,”
not,
have,
does
contradict
but
could
to
not be restricted
should
ernment
references to “uncon-
government’s proof,
facts,”
recitation of uncontroverted
sterile
improper.
Id.
evidence are not
tested”
argu
“make
certainly can
counsel
eye-
applies
equal
force
This rule
the evi
reasonably
ments
from
inferred
by a law en-
testimony provided
witness
Rose,
v.
States
presented.”
dence
officer:
forcement
Cir.1994)
(empha
that a reference
court has held
[T]his
added). Furthermore,
wish to
we
sis
improper
testimony is not
unrebutted
only
not the
clear that Harris was
make
the ar-
present at
police
where
officers
have rebutted
person who could
govern-
rest could have contradicted
be
taped conversations
explanation of the
theory.
ment’s
desired, he
so
had the defendant
cause
Mietus,
“expert” to United States
own
presented
could
added).
(7th Cir.2001)
(emphasis
We
possi
testimony and
challenge Young’s
in
is mistaken
that the dissent
for the
convinced
explanations
bly offer alternative
stating that
when
application
law
its
conversation
language and other
code
who could have
only person
was the
unex
reasons
tapes,
for
used on
theory con-
government’s
contradicted
not to call
record he chose
plained
money.
the transfer
cerning
because he was
expert, probably
an
such
no avail. Harris
it
be of
convinced
Error
the Harmless
Application of
2.
permitting
failed to demonstrate
has
Doctrine
evi
“uncontested
to hear the
assume, arguendo,
if
were to
Even we
erroneous.
plainly
statements was
dence”
challenged comments
prosecutor’s
not satis-
Harris’ claims do
improper,
with the dis
disagree
were
We also
prong of the
“impact”
improper
fy
Renteria/Cu-
that it was
conclusion
sent’s
errors made
any alleged
test and
testimony con
simano
refer
prosecutor to
were
this record
prosecutor
by the
money
from
cerning the transfer
considering
clearly harmless. After
being “not contested.”
comments taken
the con-
allege any problem with the jury’s ability
*12
whole,
text of the
record as
we are
to understand the instructions.
convinced that the comments did not have
earlier,
weAs
have stated
the weight of
injurious
“substantial and
effect or influ-
the evidence is
in favor of
overwhelmingly
ence
determining
jury’s
on
the
ver-
establishing
guilt beyond
Harris’
a reason-
"Brecht,
dict
When ef negotiations Harris, between himself and improper fect of remarks the overall the exchange money, and the eventual trial, place fairness of a we considerable transfer of cocaine. testimony His also (1) emphasis on the curative effect jury detailed the history of his drug dealings instructions, including those instructions Harris, with as well as Harris’ use of code regarding government’s burden to es language during drug all transactions. It tablish every each and element of the is well known that drug commonly dealers charged beyond doubt, crime a reasonable use code language out of fear that their as well as the trial court’s direct admoni will intercepted: conversations be tion that the arguments attorneys of the Conversations regarding drug transac- (2) evidence, are not to be considered and tions are rarely clear. A fact-finder weight of the guilt evidence of con always must draw inferences from veiled tained in the entire record. United States allusions and code words. In this case Cornett, Cir. jury was confronted with conversa- 2000). that, tions which contained “code words” isolation, respect when might
With to the considered first factor seem (the instructions), unclear, jury nonsensical, reviewing after veiled and almost jury instructions we are but analyzed convinced that when properly, in the con- they proper. were In particular, totality evidence, we note text of the can that the trial court’s instructions clearly on the be seen to be “code words” for government’s proof burden of proper that, were drugs.... It is true advisedly, no jury furthermore the was clearly explicit in mention was ever made of co- formed that arguments of the attor caine drugs or other in any Vega’s neys are not evidence. “Absent evidence conversations with the Zambranas. contrary, presume However, we jury made, a case was which was understood and followed the district than strong more enough to convince the Cornett, court’s instructions.” jury, 232 F.3d at Vega used terms like “chick- believe, ens,” 574. We have no reason to nor “roosters” and “it” as code words reflect, does the jury record for drugs. only Not are code words left with a law, misunderstanding of the always by used drug conspirators when nor how it apply realize, was to the law they to the facts in today’s drug do presented. culture, It is interesting also to note telephone their conversa- jury before, had no questions frequently tions are intercepted, such deliberations, during, or after obviously defense term were by used the con- objection counsel made no in spirators in this case.... [W]e have fre- trial, structions appeal at nor on upheld does he quently conspiracy determina- Harris, juries which turned it who was observed by judges and made over tions money “code upon receiving placing inferences that it relied were meant language pocket. Shortly or obscure after from his returning words” drugs. Harris, meeting refer final turned ounces of over two cocaine to the officers (citations Vega, Springfield Department. from the Police omitted). marks quotation internal Furthermore, Young’s testimony was important piece Another of evi tape recorded conver- corroborated *13 against Harris the fact that dence was As himself and Harris. sations between Young’s testimony detailing oath the under or “co- example, “drugs” an the words transfer of actual cocaine was corroborated any in of the caine” are not contained tape in recorded of the the conversation Furthermore, recorded conversations. The meeting. recording containing crucial tape one to a of the recorded listening glove instructions “look in the Harris’ necessarily come conversations box,” comment, “you Young’s followed many com- the that of Harris’ conclusion man,” and spooked, Harris’ direction to no un- make little or sense unless ments it,” particularly probative is evi “peep derstood, explained, a code Young as through when the guilt dence of viewed Young’s testimony in- lingo drugs. for describing the Young’s testimony lens of of code lan- explanation his the cluded If, sug transfer of cocaine. as the dissent tapes, how reference guage on the Harris’s gests, Young “Harris could have told of to “a was code for two ounces deuce” glove any box for number of look story that ‘You the is cocaine and know reasons,” the why did two men deliberate you Eighteenth?” for to meet me on the the ly glove fail to discuss content of the two code Harris’ refusal to sell for in any in manner other than code box $1,800. amount than any ounces for less drug referring directly to the language once make clear again (examine it)
And let us
“peep it”
“it’s on
transaction:
prerogative
not the
of a federal
(the
it is
exactly two
quantity
knob”
is
appellate
jury’s
second-guess
court to
ounces)?
is ob
The recorded conversation
Young’s testimony—the deter
weighing of
viously
Young
evidence
received the
exclusively
credibility
his
is
mination
manner
from Harris in the
cocaine
of
v. Mutha
jury.
See United States
described, and we fail to understand and
(7th Cir.1995) (“As
na,
1217, 1223
disagree with the dissent’s statement
must
credibility
a matter
sessing witness’
jury “could
determined that
province
jury,
inherently
of
within
[regarding
glove
box]
the conversation
credibility
arguments concerning
expla
Young’s
In
of
light
was innocuous.”
court.”) (internal
appellate
an
wasted on
are con
the code
we
language,
nation of
omitted);
States
quotation marks
nothing
view is
vinced that
dissent’s
Ramirez,
v.
Cir.
in
speculation unsupported
but mere
1986) (“An
not
...
appellate court will
We are a
to understand the
record.
loss
witnesses.”)
credibility
assess
claim
Harris’ direction to
dissent’s
was in
glove
to “look
box”
tape recordings
In
addition
way ambiguous, for the dissent has
intro-
testimony,
government
any explanation
reasoning
or
failed to offer
testimony
further
corroborative
duced
interpretation
an
support
alternative
According to
through Detective Graham.
account,
law is clear that
Young of those five words. The
eye-witness
the detective’s
all
$1,800
need not answer
police
money
prosecution’s
and the
case
obtained
bait
questions and remove all
ny
“because
that the men had made a deal for two
doubts
ounces,
“deuce,”
(4)
impossible;
proof
cocaine,
would be
need
or a
only satisfy
Vega,
Young’s explanation
reasonable doubt.”
of the sound recorded
F.2d at 794.
government’s proof
The
when the cocaine
hit
bags
the recorder in
(5)
every
“need not exclude
hy
pocket,
readily
reasonable
understand-
pothesis
long
innocence so
as the total
able “coded” conversations discussing the
permits
guilt
cocaine,
evidence
a conclusion
be
sale of the
very power-
amount to
yond a reasonable
doubt.
trier of fact
ful evidence of
guilt.
among
is free to choose
various reasonable
We are aware that the trial was
(em
constructions of the evidence.” Id.
perfect,
not
as is the case most trials.
added). Further,
phasis
“the existence of
But
point
let us
out that the United States
an
explanation
innocent
does
foreclose
guarantee
perfect
Constitution does not
a jury
guilt beyond
from finding
a'reason
trial, only
Tucker,
Michigan
fair trial.
able doubt. The
[is] entitled to draw
417 U.S.
S.Ct.
L.Ed.2d 182
*14
reasonable inferences from the conversa
(1974).
review,
Based on our
we
con
Vega,
tions.”
to have obtained the cocaine from some ror, and having prejudicial fell short of source, phantom other he would have had effect on jury. to obtain drugs in an almost instanta frame, neous time in a secretive transac Uncharged B. Drug Admission Moreover, tion. the officers did a thor Transactions ough Young search of money drugs for Harris also claims that the tri very shortly receipt before his of the co judge al improperly permitted prosecu found, caine and none making it highly tion to prior, introduce evidence of un unlikely that purchased he the cocaine charged drug transactions between himself anyone from other than Harris. and Young. We review a district court’s The recorded conversation evidentiary re rulings for abuse of discretion.6 garding Harris’ Menzer, instructions to look in the United States v. 29 F.3d box, (1) glove (7th Cir.1994). when combined Young’s A determination first-hand testimony of the leading events made regarding the admissibility of evi up to and including the transfer by of the dence judge the trial “is treated with (2) drugs, the transfer of cash to great deference because of the judge’s trial (3) Graham, witnessed Detective exposure first-hand to the witnesses and Young fact that turned over exactly whole, almost the evidence as a and because of his two ounces of shortly cocaine familiarity after the with the case ability crucial meeting, corroborating his gauge likely impact testimo- of the evidence judge's Williams, 6. ruling (7th Given the Cir.1999) definitive on Har- issue, concerning ris’ motion in (en limine banc) ("a ruling pre- definitive in limine there was no need for the defendant to renew appellate serves an issue for review—without objection at preserve trial order to objection.”). need for later appellate issue for review. Wilson v.
t- o lo. doctrine, admissibility cately related” proceeding.” entire of the the context activity uncharged criminal Wash, F.3d 371 of Harris’ v. States United Cir.2000). turns on: permitted properly judge the evidence is admit- whether period preced year five complete that in the with a testify provide ted to four three trial, sold trial, ing ... whether the crime story [on] different or nine eight cocaine ounces of chronological would create its absence testimony regarding Young’s occasions. story conceptual void or a de drug sales included uncharged these crime, it so blended or ... or whether for commu procedures scription of Harris’ involves, incidentally it connected that and the nication, money, exchange surrounding, explains circumstances According to the drugs. delivery of, the prove any element or tends judge: trial charged crime. case, has the Government instant In the 350, quoting Ryan, audio it will seek to admit indicated Ramirez, F.3d States Defen- between conversations tapes of omitted). Cir.1995) (citations Young. In these conversa- dant highly tions, allegedly uses Defendant opinion testi- are of the We prices to refer language veiled the defendant Harris’ mony concerning co- two charges for ounces he which the sale of operandi usual modus *15 notes, the As the Government caine. in evidence. properly admitted drugs was explain the Government to only way for to allow the If the court had declined lan- of this jury significance the to the explanation of Har- detailed receipt of this testify that to to allow is guage transactions, including negoti- the drug ris’ language this veiled he understood of ations, the transfer the purchase, the he because drug transactions refer to cocaine, language, of code the and the use drug transactions involved has been with a somewhat been left jury would have such, As past. Defendant with incomplete picture. confusing drug prior the evidence Defendant’s prior un- testimony regarding the Young completes with transactions activity qualified drug criminal charged crime with which story the Defendant Ramirez three sce- the admission under and is so connected charged has been story “completes the narios. The circumstances sur- evidence explains the that it crime, crime,” would create (emphasis its absence charged rounding void,” is “so added). and the evidence “conceptual it charged offense that blended” judge’s trial with the agree We surrounding circumstances. explains the was admissible evidence ruling prong un- satisfy one only Evidence need doctrine. related” “intricately under admissible, to be order Ramirez in der line a well-established has “This Circuit satisfies in this case evidence the contested un evidence of allows precedent which are convinced prongs. We all three the evi introduced if charged acts to be in- under the admissible evidence was acts related’ to the ‘intricately dence is tricately related doctrine. United States in the indictment.” charged (7th Cir.2000), 347, 350 213 F.3d Ryan, and sentence Harris’s conviction Gibson, 170 F.3d States v. quoting United Cir.1999). “intri- 673, Under the Affirmed.
o WOOD, 1997),
DIANE P.
Judge,
Circuit
to which the majority refers ante dissenting.
699: first we consider whether the chal
lenged
improper;
remarks were
if they
Marcus Harris stood trial on a single
were, we then consider them in context
charge
unlawfully
distributing cocaine—
ask whether
denied the defen
cocaine,
not
conspiring
distribute
Renteria,
dant a fair trial.
The statements Harris challenges
“uncontested,”
are
or
person
and if the only
set out in
majority opinion.
the
myAs
who could reasonably
expected
be
to rebut
colleagues essentially acknowledge,
the
himself,
the evidence is the defendant
then
government has conceded that at
least
such
naturally
comments
necessarily
and
some
Ante at 700.
improper.
of them were
call the jury’s attention to the defendant’s
Nevertheless, both because this court has
Mietus,
e.g.,
testify. See,
failure to
237
an independent obligation
871; Aldaco,
to assess the
987;
F.3d at
201
at
F.3d
propriety
any
error,
such
Cotnam,
United States v.
487,
confession of
497
and because
Cir.1996)
affirmance
required
cases).
would be
(collecting
Essen-
if the statements
improper,
were not
I
tially, these cases carve out a narrow class
first,
consider the propriety question
and
of comments
indirectly
that refer
then
question
the
impact
of the
defendant’s
failure
testify
—remarks
improprieties on the trial as a whole. This
testimony
that
is
only
unrebutted when
the
is in keeping with the usual test
that is
supplied
defendant could have
a rebuttal—
applied
plain
error
prosecuto-
review of
and hold
type
that this
always
comment
rial misconduct under cases like
United
naturally
necessarily
involves a com-
Renteria,
States v.
707 only person who was Because Harris the Harris chal- the statements Both evi- both the “Sam” first have rebutted The could rule. of this ran afoul lenges evidence, the Young’s and the fund transfer Berry dence back referred statement the evidence that out of statements prosecutor’s Harris backed testimony that “not Harris “unrebutted” points was was or Citgo because on at the these drug deal “Sam,” man who had improper. that were contested” concerned selling drugs arrested for recently been Next, challenges with cooperating might be who At demeanor. his courtroom references pros- closing, the his there. In police, closing argument, initial end of his given explanation “[t]he that argued ecutor “What’s been jury: asked prosecutor backed why Harris Berry Young [for trial? during this manner the defendant’s unrebutted absolutely deal] of the out catch You’ll never joke. it’s a Cocky, like could prosecutor But here this case.” But not careful careful. I’m too me. Harris’s talking about only have been not discuss majority does The enough.” mind, because frame thoughts or statements, but of these propriety go not why Harris decided question was they were has conceded government how rea- No matter the deal. ahead area caselaw this review of the error. A been may have Young’s guess sonable the correctness amply demonstrates the fact processes, mental about Harris’s Supreme of that concession. wisdom an including party, no third remains of a “one accused held that has Court reasonably could have drug lingo, expert in or inno guilt entitled to have crime is except testimony rebutted solely on the basis cence determined Harris himself. trial, and not introduced evidence the in- Second, prosecutor described ad ... circumstances basis of] [the agent government in which cident Taylor Ken at trial.” v. proof duced as and con- Young give Harris $1800 watched 1930, 56 98 S.Ct. U.S. tucky, 436 “not testimony was con- cluded that (1978). Several circuits L.Ed.2d govern- according to But tested.” prosecutorial rule to applied this hold witnesses, people three only ment’s own courtroom on the comments defendant’s exchange of mon- alleged witnessed the See, e.g., United improper. demeanor Harris, Agent Graham. ey Young, — (3d Gatto, F.2d v. States testified both Agent Graham Young and Schuler, Cir.1993); United States money. The Young gave (9th Cir.1987); States F.2d could have who person only conceivable *17 (11th 787, Cir. Pearson, 796 746 F.2d v. prosecutor “contest” supplied the is 1984). this outcome that I am convinced Harris him- again missing was claimed was in circuits sister join our and correct v. on Kurina majority’s The reliance self. Ahitow, Gomez holding. See also this Cir.1988) (7th is Thieret, F.2d 1409 Cir.1994) (7th (citing 1128, 1136 other wit- in case since that misplaced, de although reasoning approval, this party, nesses, could by called either not grounds). on other ciding case testimony prosecu- of countered prosecu- seriously, and most Finally, no It Id. at 1416. makes tion witnesses. during his rebuttal a statement tor made three wit- were there difference whether distorted improperly that argument thirty; if or transaction drug nesses pas- In the case. proof burden prose- testify for the the defendant all but prosecu- objects, the which sage to credi- who can cution, only person then tor stated: defendant. is the in rebuttal bly testify
Absent Cir.2000); reasonable alternative ex- United v.Vargas, States planation for Cir.1978). defendant’s comments F.2d The state Berry Young that the government quoted ment just created above a such says related to if that is the drugs, only it, distortion. According to there unless explanation reasonable was that Berry was a reasonable explanation alternative Young asked' —the defendant said he had the meaning conversations, of the recorded deuce, two, a Berry Young says will there could be no reasonable doubt as to you 18,1800, sell it to me for Eighteenth whether Harris distributed drugs. Street, and the says, defendant “I’ll do true; But plainly this is it assumes that you, for I’ll do that you,” and in that evidence negotiations and evidence Berry fact Young is seen Detective of final delivery are one and same giving defendant, Graham $1800 thing, are not. strong Harris’s and then the defendant —and then after that, est argument tapes even if the meeting with the defendant the next showed that he negotiat were time Berry after that Young comes back deal, ing drug there was proof no ounces, with two if there is no other actually delivered the drugs rather explanation reasonable for those state- than backing out at the last minute. Fur ments given by than that Berry Young, thermore, I explain as below in more de there is no doubt reasonable about tail, government way had no of show Berry where Young got those two ing for certain that Harris was the source ounces. of whatever drugs Young got. For the government Statements suggest jury tell the incorrectly that it had to what the must find in order to reach convict unless it could find an innocent certain verdict distort proof explanation the burden of for the negotiating conversa and are therefore improper. See tions United was misstatement of the govern Cornett, States v. ment’s proof.1 burden of 1. majority comments April reference trol on 2000 near the intersection of to 18th Street Springfield must have been 18th Street Springfield, and Cook Street in transaction, because, drug for a code says, it Illinois, fighting observed two men on the "[tjestimony at trial from and an FBI side the road.” Argument Brief and Agent established that no [is] there street des- Later, Defendant-Appellant at 6. it says "[a]s ignated 'Eighteenth Springfield, Street’ in approached stop Jackson sign 18th fact, Illinois.” Ante at n. 3. In the situa- Edwards, he Appellant.” saw Defendant Id. simple. tion not so As the ordinance the at 8. While consulting someone the Internet clear, majority supplies makes there is no map MapQuest source (http:// longer a Springfield street in that bears the www.mapquest.com) only would find South But, "Eighteenth formal name Street.” as is King, Martin Luther Jr. Drive between South often the renamings, case with street it turns Street, 17th Street and South 19th the alter- that in out common parlance the old name native map source MapBlast! away. has not died striking It is (http://www.mapblast.com) shows exact court, appeal another filed in this same street as newspapers 18th Street. Local McClain, 01-1740, States v. No. 2001 WL appear also to refer to the street as 18th 1231512, the brief for the United States con- *18 See, Beat, e.g., Street at times. Police State following tains the respect with assertion to 9, Register 2001, Journal (Springfield), July at Springfield, streets in Illinois: "Eric Jackson 16, available at WL 23495817 (reporting stopped stop sign at a at the Eigh- corner of Springfield that a police resident "told Satur- teenth and Edwards Street.” Brief of Plain- man, day night Appellee 27-year-old that a tiff at 3. The whose brief for the defendant- know, appellant in that name he case didn’t Eigh- twice refers to an crawled onto the front First, porch teenth Street in Springfield. reports it of his home in the 1000 block of South Anderson, that "Officer pa- while on routine 18th Street 27-year-old after had been the govern- If the drugs. the ating for sale short, not one made prosecutor, The negoti- prove to that Harris only remarks had improper ment seriously but several it nec- affirmance again once drugs, This makes to sell ated closing argument. question the me consider in order. essary for would be light remarks, in the viewed these whether however, that Where, the evidence is whole, Harris deprived aas the record the ounces of two actually delivered Harris correctly majority the a fair trial. As point, this critical Young? On cocaine whether notes, inquiry is of this the focus was scant. We evidence government’s the was so defendant against the evidence the testimony that own from know he would clear that that it is overwhelming and selling drugs about was skittish Harris im- the absent convicted even been have if he deal typically abandoned a he that States remarks. See proper We also was amiss. anything sensed 510-11, S.Ct. Hasting, 461 U.S. know, interpreta- Young’s own again from (1983). answer, I The 1974, L.Ed.2d 96 conversations, that Harris taped tion cer- believe, government the no: while with him out of a deal already pulled had Harris against evidence enough had tainly back- day. Against that in the earlier conviction, that is again once to sustain to a Young that went we ground, know instead must consider issue. the We not Harris, at Harris’s shop to meet barber possible other conclusion no whether accompanied agents request. Government look at a close point, jury. On for this shop, they parted but Young to the barber drugs the delivery of actual evidence of him there and left they got ways before was not case government’s reveals (They explained unattended. entirely claims it majority as nearly airtight to maintain visual dangerous was too it below, contrary, as I indicate To is. key mo- during Young surveillance and a reason- gaps, significant there were provided allegedly when Harris ments the case jury viewing without able him.) story, Young told As drugs to by these errors introduced distortions lot to parking Harris walked he govern- that the have also concluded could truck. After discuss- new at Harris’s look that Harris trans- prove failed ment minutes, Harris a few truck for ing the Young. drugs to ferred the glove in the Young to “look instructed pre- government agree all We for a little two talked compartment.” overwhelming evidence that sented job, paint truck’s longer about while Young sever- Young to sell negotiated said, “Peep man. It’s it then Although par- both of cocaine. al ounces about I’m thinkin’ knob. it’s on the tight, lan- much of the made “veiled” have ties returned to later it.” sellin’ to conduct used Harris and guage cocaine, testify- ounces of with two agents lan- I find the coded negotiations, their drugs he found ing at trial that transparent, and rather tapes on the guage the refer- and that compartment, glove any ration- believing that I have no trouble “on “tight” and something being ences tapes, those hearing jury, al weighed that the cocaine meant the knob” negoti- two were indeed concluded plainly issue with did take beaten”); if Harris January al Weekly, UIS at tri- Street http://www.uis.edu/week- about 18th statement available inaccurate Day Unity ly/jan08.pdf (reporting al, on Annual court appellate an that we as is little there particular go to a directing marchers sug- further do here. But it could or should proceed west to Pil- staging area "then overwhelm- was not so gests that the evidence Church, Baptist Missionary grim Rest paints it to be. majority ing as the Street, Naturally, Springfield”). *19 South 18th two exactly. Furthermore, ounces Although this testi- despite the officers’ testimo- believed, mony, if certainly was sufficient ny Young that had drugs neither nor mon- Harris, to convict portion this of the case ey him, at the time of their search of ultimately entirely rests on Young’s word. Young testified that later in the day he The references to something being “tight” bought spicy wings chicken at Citgo. the and “on the knob” easily could have re- testimony This suggests that the officers ferred to drugs, did, as Young they said had, either missed money some Young or but they were ambiguous enough they that he managed acquire to money after their could also have described something else. inspection. way, Either if he could have Similarly, could Harris have told Young to (in acquired money a “secretive” transac- glove look the compartment to retrieve tion not recorded on tapes), then he any legal number of people items that acquired could also have drugs. commonly there, store such as the car’s of this say None is to that Young neces- short, title and registration. In although sarily acquired drugs provided he to the recorded easily conversation could be agents anywhere other than from Har- interpreted as Young suggested, jury ris, he as said he It only did. illustrates reasonably also could have determined that Young ample had opportunity to ac- that the conversation was innocuous. quire drugs elsewhere if he had want- majority’s suggestion quite that it is ed set up. Young also had am- unlikely that Young could acquired have ple so, motive to do agreed he had drugs in any way other opinion the—as cooperate with government in- its it, puts “from phantom some other source vestigation of Harris government after the ... in an almost frame, instantaneous time caught Young drugs. himself with Young in a ante secretive transaction” was pressure, under some because he had important parts overlooks of the record. been unsuccessful in purchasing drugs The trial testimony apparent makes it from Harris in of their first few meet- ample had opportunity and time to ings. Harris’s argued that, counsel at trial obtain the two ounces of cocaine from although may negotiated have someone other than Harris. When the sell drugs to Young, he ultimately did not officers and Young began operation this do Although so. the jury obviously was the morning of November the officers accept bound to story, the evi- searched Young and his car and found no dence record supported could have money drugs. that, (and or After however it. assuming that this search accurately re- Against vealed this backdrop, government’s Young had no money or drugs time), improper at that closing argument elapsed may well several hours before prejudiced Young finally First, returned to Harris. officers with the drugs that statement afternoon. that “if During there is no other reason- time, Young explanation able frequently for [the out of the recorded conver- officers’ visual sations] surveillance. other than Although given by Berry officers searched person Young, there is no again, reasonable doubt about again never searched Berry Young got ounces,” car. where those two had recording devices him directly for much addressed the central weakness time, of that but not all of it. At the government’s least case instructed the once, Young the recording left device in ignore that weakness. That error car, when he left it go into Citgo alone might be enough to warrant rever- station where he was to meet Harris. sal. But there is prose- much more. The *20 de- defendant’s statements eutor’s “cocky, like trial was during the
meanor thought the defendant and that joke”
it’s him catch never government very are also “too careful” he was
because Young tes- given
troubling, especially drug history as to in detail
tified refer- prosecutor’s with Harris.
deals invited the Harris’s demeanor
ence that he on the fact Harris based
to convict dealer, than rather sneaky drug cocky,
is a had government on whether
focusing actually dis- proved that
sufficiently these case. in this When drugs
tributed re-
errors, along with references improper
peated taped interpretation
“unrebutted” I can-
conversations, together, viewed weight of combined say that the improperly influence did not
errors Harris, despite convict
jury’s decision to burden instructions generic court’s and remand I reverse proof. would trial, respectfully I therefore
a new
dissent. INSURANCE
GRE GROUP/TOWER COMPANY, INC., a
INSURANCE Appellee,
Corporation, Plaintiff - MUSIC, INC., Nebraska
COMPLETE
Corporation, Appellant. Defendant - 00-3982.
No. of Appeals, Court
United States Circuit.
Eighth 18, 2001. Oct.
Submitted: Nov. 2001.
Filed: