UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID NEIGHBORS, LAFREDERICK TAYLOR, KAMAL SIMS, AND TREVOR PERRY, Defendants-Appellants.
Nos. 09-1113, 09-1114, 09-1115 & 09-1116
United States Court of Appeals For the Seventh Circuit
Argued September 23, 2009—Decided December 29, 2009
Before FLAUM, WOOD, and SYKES, Circuit Judges.
Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:08-cr-13-RLY/WGH—Richard L. Young, Chief Judge.
I. Background
A jury found that defendants-appellants Neighbors, Taylor, Sims, and Perry participated, at varying levels, in a conspiracy to possess and distribute cocaine base (crack cocaine) that spanned several months in 2007. The majority of the transactions involved in this conspiracy took place at the home of Neighbors, located at 619 Jackson Avenue in Evansville, Indiana. Law enforcement bеcame aware of this conspiracy in April of 2007 when Detective Brock Hensley of the Vanderburgh County Task Force employed a confidential informant, Samuel Curry, to make a controlled purchase of drugs from Neighbors at 619 Jackson. Surveillance of Neighbors and individuals who frequented 619 Jackson continued after this date. Approximately a month after this controlled buy, on May 22, 2007, the Vanderburgh County Task Force obtained a wiretap for Neighbors‘s home phone number at 619 Jackson that ran through August 22, 2007. On July 24, 2007, the Task Force officers obtained a second wiretap for Neighbors‘s cell phone that also ran through August 22, 2007. During the time the Task Force was
On August 30, 2007, the officers executed search warrants for appellants’ various residences. At the residence of Taylor, the officers found a firearm under the mattress in the bedroom and a digital scale in the living room. At the residence of Sims, officers found $918 on Sims‘s person and additional money in the oven. At Perry‘s residence, offiсers found digital scales in the master bedroom. At 619 Jackson, officers found a man by the name of Keshaun Horne who had money, cell phones, and scales on him. Officers also found plastic baggies, a small amount of cocaine, and two documents with Neighbors‘s name on them. Officers located Neighbors later that day and found him with the cell phone attached to the phone number for which they had obtained the second wiretap. Neighbors, Taylor, Sims, and Perry were taken into custody that day.
On May 21, 2008, a federal grand jury returned an eight-count indictment against Neighbors, Taylor, Sims, Perry, and eight other individuals.1 Count One charged Neigh-
After an eight-day trial, the jury convicted all four defendants-appellants. The jury returned a verdict of guilty for all four appellants on Count One, the conspiracy сount. The jury additionally returned guilty verdicts for Neighbors on the other drug counts, and Taylor on the possession of a firearm count. The jury returned a verdict of not guilty for Perry on the possession of a firearm count. On the special verdict form the jury found: (1) Neighbors engaged in a conspiracy to distribute in excess of 50 grams of cocaine base and less than 500 grams of cocaine hydrochloride; (2) Taylor engaged in a conspiracy to distribute in excess of 50 grams of cocaine base; (3) Sims engaged in a conspiracy to
Defendants-appellants appeal various claimed trial and sentencing errors. We recount the facts surrounding these alleged errors in the analysis below.
II. Discussion
A. Jury Selection
The district court assembled the jury panel at random, using voter registration polls from the Evansville area. The panel of prospective jurors contained no African-Americans. During voir dire, two prospective jurors on the panel noticed and commented on the racial make-up of the jury panel. One perspective juror, of his own initiative, said, “If I were sitting in the defendant‘s chair, I might be a little concerned that we‘re all rather light skinned over here, and isn‘t it supposed to be a jury of your peers?” (Trial Tr. 4). Because of the jurors’ comments, the district court asked the jurors whether they felt uncomfortable rendering judgments for African-Americans because they were Caucasian. All of the potential jurors responded that they did not feel uncomfortable. Despite the reassurances of the jurors, defense counsel objected to the make-up of the jury panel and moved for a mistrial. The district court denied this motion.
The Supreme Court has determined that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528 (1975). Both parties agree that Duren v. Missouri, 439 U.S. 357 (1979), controls when determining whether the jury venire is a representative cross-section of the community. Under Duren, “in order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show: (1) the group allegedly excluded is a distinctive part of the community, (2) thе representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process.” Duren, 439 U.S. at 364. The district court followed the three-part Duren analysis and concluded that appellants did not meet the requirements to warrant a mistrial. Specifically, the district court found that the appellants did not meet their burden of showing a systematic exclusion of African-Americans from the venire.
To support their argument that we should abandon Guy, appellants rely on Batson v. Kentucky, 476 U.S. 79 (1986). They argue that Batson stands for the proposition that issues of race are better resolved by shifting the burden of proof to the government. Applying that principle to the Duren analysis would force the government to show that under-representation, as determined by the district court‘s assessment of the first two prongs of the analysis, is not due to systematic exclusion of the group
B. Identification of Appellants’ Voices on the Wiretap Tapes
Throughout the course of the trial, the government introduced 226 phone conversations intercepted by the wiretaps on Neighbors‘s two phones. The government presented Detective Simpson to identify the voices of the appellants on the tapes of these phone calls. Detective Simpson identified Perry on twenty of the conversations and Sims on fourteen of the conversations. Detective Simpson also testified that Taylor was identified or mentioned in thirteen of the conversations. To lay the foundation for these identifications, Detective Simpson testified to the following facts: he recognized Neighbor‘s voice from a ten- to twenty-minute interview with him on the day of his arrest; he recognized Perry‘s voice from a five- to ten-minute interview with him on the day of his arrest and from hearing him speak in court proceedings; he recognized Sims‘s voice based on a ten-minute
Only Taylor and Sims appeal the district court‘s decision to allow the voice identification testimony. They raise the same challenges on appeal that they raised to the trial court. we take these issues in turn because they require different levels of review. Whether voice identification based on in-court proceedings for a criminal defendant violates his Fifth Amendmеnt right against self-incrimination is a question of law which we review de novo. See United States v. Smith, 308 F.3d 726, 740 (7th Cir. 2002). Whether the government put forth sufficient evidence to lay a proper foundation under
Appellants Taylor and Sims argue that voice identification based on in-court proceedings violated their Fifth Amendment privilege against self-incrimination because the government used their compelled statements. Appellants concede that they have no protected interest in their voices and that the district court could have required them to provide voice samples to the government. See, e.g., United States v. Dionisio, 410 U.S. 1, 7 (1973); Hubanks v. Frank, 392 F.3d 926, 932 (7th Cir. 2004). Instead, Taylor and Sims argue that the government violated their Fifth Amendment rights by not going through the formal procedure of asking the district court to order voice samples from the appellants. Sims and Taylor also advance the policy argument that, in future cases involving wiretaps, criminal defendants will remain silent and risk contempt of court during routine court proceedings when asked if they understand the charges or potential penalties because speaking would mean waiving their constitutional right against self-incrimination.
Appellants’ argument misstates the Fifth Amendment privilege against self-incrimination. The Fifth Amendment only prohibits the compulsion of a witness to testify against himself or otherwise provide the government with evidence of a testimonial nature. Hubanks, 392 F.3d at 932. The Fifth Amendment does not prohibit comрulsion of speech of a non-testimonial nature, nor does it give an individual a privacy interest in the charac-
Appellants Sims аnd Taylor also argue that the government failed to lay a sufficient foundation under
Detective Simpson‘s foundational testimony meets this low bar of minimal familiarity. See Recendiz, 557 F.3d at 527; Mansoori, 304 F.3d at 665. To lay the foundation for his identification of Sims‘s voice, Detective Simpson testified that he had a five- to ten-minute conversation with Sims on the day of his arrest and he heard him speak in previous court proceedings. To lay the foundation for his identification of Taylor‘s voice, Detective Simpson testified that he heard Taylor speak in pervious court hearings. These pieces of testimony provided sufficient foundation for Detective Simpson‘s identification of appellants. Additionally, the government presented circumstantial support of the identification of Taylor. Deputy Marshal Rich Chambers testified that the officers identified Taylor‘s voice on a call in which Taylor and Neighbors discussed meeting at a specific location in thirty minutes. Thirty minutes later, Chambers observed Taylor meet Neighbors at that very location.
Sims and Taylor argue that Detective Simpson‘s testimony was inherently unreliable because a significant amount of time elapsed between when he initially listened to the tapes and when he made the voice identifications. They try to bolster their argument by pointing to the fact that the identifications occurred in preparation for trial and that the officers listened tо
C. Transcript Books of the Wiretap Tapes
When the government played recorded phone conversations to the jury, the district court allowed the jurors to follow along on government created transcripts with marginal notations of who was speaking at any given time. All of the appellants objected to the marginal notations identifying the speaker on the same grounds as their objection to Detective Simpson‘s testimony identifying the speakers. In response to the appellants’ objection the court did not directly rule, but rather admonished the jury that the transcripts were not evidence but simply were an aid to assist in understanding the tapes. However, the district court allowed the jury to look at the transcripts, thereby implicitly overruling appellants’ objection.
After closing arguments the appellants objected to the jurors taking the transcript books back to the jury room during deliberations. The district court retrieved the transcript books from the jurors and informed them that while they could not rely on the transcripts, they could listen to the tapes of the calls that had been admitted into evidence. During deliberations the jurors asked to
Members of the jury, I‘ve discussed the matter with the attorneys. There‘s really no way that we can compile a list as to identify the alleged speakers in the conversations, so the only way I think we can addrеss your request it to send the transcript book back to the jury room with you and allow you then to identify those phone calls you wish to hear. . . . Now, you may recall my instructions to you—I‘ve said it over and over—that these transcripts are not evidence; they are only an aid to help you understand what is being said in the phone call. And the reason I‘m sending the transcript book back to you is really the only way I can think of that would allow you to identify those phone calls you wish to hear.
(Trial Tr. 1107-08).
All appellants argue that the district court erred by allowing the jury to take the transcript books back to the jury room during deliberations. We review a district court‘s decision to allow the introduction of transcripts as аn aid under an abuse of discretion standard. United States v. Nunez, 532 F.3d 645, 650 (7th Cir. 2008).
In United States v. Breland, cited by both parties, we stated, “district courts have wide discretion in deter-
Appellants attempt to distinguish Breland on the ground that the district court in Breland admitted the transcripts as evidence. In this case, the district court did not admit the transcripts as actual evidence. Rather, the district court only allowed their admission as an aid, to help the jury undеrstand the wiretap tapes. Therefore, appellants argue, it was improper for the district court to allow the jury to consider these transcripts during deliberations. Appellants point to the actions of the district court in United States v. Zambrana, 841 F.2d 1320 (7th Cir. 1988), as the proper procedure for dealing with transcripts of wiretaps. In Zambrana, the district court allowed the jurors to use the transcripts as aids in listening to the audio tape during the trial but did not allow the transcripts to go to the jury room for the jury to consider them as substantive evidence. 841 F.2d at 1335. Additionally, the district court in Zambrana instructed the jury to resolve any discrepancies between the tapes and the transcripts in favor of the tapes, and to not consider the names in the margins as evidence оf the identities of the speakers. Id.
D. The Cross-examination of Kareem Davidovic
Kareem Davidovic testified as a cooperating witness for the government. On direct examination, Davidovic
On cross-examination, Neighbors‘s attorney asked Davidovic, “Have you ever told anyone that you either have lied in this particular case or intended to lie in this particular case?” (Trial Tr. 180). Davidovic denied ever telling anyone he lied in this case or intended to lie in this case. At that time, Neighbors‘s attorney attempted to introduce a number of letters Davidovic admitted to writing. One of the letters stated, “I did lie on that Haitian N*****. I said he used to serve me my blow. You know I never F*** with him.” The government objected on the grounds that this letter was impermissible extrinsic evidence of a specific instance of untruthfulness. Appellants advanced two arguments to the district court for why the court should admit this evidence. First, appellants argued that this letter directly contradicted Davidovic‘s statement that he never told anyone that he liеd in this case or intended to lie in this case because the Haitian referred to Selmo Cadet, another party arrested in this case. Appellants also argued, “[I]t goes straight to the issue of his truthfulness, veracity, or lack thereof.”
Appellants argue that the district court еrred by not allowing them to introduce the letters written by Kareem Davidovic. We review the district court‘s evidentiary rulings for abuse of discretion. United States v. McGee, 408 F.3d 966, 981 (7th Cir. 2005). If we identify an error that amounts to an abuse of discretion and a timely objection to the error was raised at trial, we must determine if the error was harmless. Id.
As a preliminary matter we must determine if this evidence falls within the ambit of
We specifically addressed the tension between
the force of the MCC phone call recording was not due to a comparison of Smith‘s statements and his equivocations at trial. Rather, Smith‘s elaborate lie to his supervisor, in and of itself, cast significant doubt on Smith‘s character for truthfulness. For this reason, the MCC tape falls squarely within the ambit of
Rule 608(b) , and it was error for the district court to allоw the government to play the tape.
Based on our reasoning in McGee and the arguments of appellants on the record, Davidovic‘s letters fall within
Moreover, even if we found that
Finally, even if this evidence were admissible as contradiction evidence and the district court erred in excluding it, the error was harmless. Davidovic‘s testimony was only a small piece of a much larger case. Davidovic‘s testimony did not inculpate Perry in any manner and only addressed one of the counts for Neighbors, Sims, and Taylor. Additionally, had this evidence beеn admissible, it would have been admissible for the limited probative value of showing a contradiction between Davidovic‘s testimony on the stand and his earlier statement in the letter. It would not have been admissible as a sweeping admission by Davidovic that “he is able to lie and use deceit to achieve his own goals,” as appellants argued. In light of this limited probative value and the plethora of evidence other than Davidovic‘s testimony, the exclusion of this evidence, if an error, was harmless.
E. Motion for Directed Verdict
The indictment charged all appellants with a conspiracy to possess and distribute both crack cocaine and powder cocaine. After the trial, the jury returned a special verdict form finding: (1) Neighbors engaged in a conspiracy to distribute in excess of 50 grams of cocaine base and less than 500 grams of cocaine hydrochloride; (2) Taylor engaged in a conspiracy to distribute in excess of 50 grams of cocaine base; (3) Sims engaged in a conspiracy to distribute in excess of 50 grams of cocaine base; and (4) Perry engaged in a conspiracy to distribute
On appeal, appellants Taylor, Sims, and Perry argue that the district court erred when it did not grant the motion for a directed verdict. We grant great deference to the jury verdict when reviewing a denial of a motion for a judgment notwithstanding the verdict. United States v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005). We evaluate a conspiracy variance claim to determine, viewing the evidence in a light most favorable to the government, whether the evidence is sufficient to support the existence of the single conspiracy charged in the indictment. United States v. Williams, 272 F.3d 845, 862 (7th Cir. 2001).
Although the special verdict form does vary from the indiсtment, this variance is not fatal. The general rule that allegations and proof must correspond serves the purpose of ensuring that the accused is informed of the charges against him so that he can prepare his defense and so he may be protected against a second prosecution for the same offense. United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971). However, if these ends are met, a variance between the allegations and proof is not fatal. Id. When the government proves a subset of the
F. Sentencing
At sentencing, the district court sentenced Neighbors to a life sentence, Perry to 327 months, and Sims and Taylor to 240 months each. Appellant Perry challenges his sentence of 327 months as an abuse of discretion by the district court. We review a district court‘s sentencing decision for reasonableness, using an abuse of discretion standard. United States v. Omole, 523 F.3d 691, 696 (7th Cir. 2008). A sentence that falls within a properly calculated guideline range carries a presumption of reasonableness. Id.
Perry admits that the district court correctly calculated the sentencing range to be between zero and thirty years.
III. Conclusion
For the foregoing reasons, we AFFIRM all appellants’ convictions and appellant Perry‘s sentence.
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