UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID GIBSON and JERRY HARRIS, Defendants-Appellants.
Nos. 20-1236 & 20-2234
United States Court of Appeals For the Seventh Circuit
April 30, 2021
Before SYKES, Chief Judge, and MANION and ST. EVE, Circuit Judges.
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:18-cr-33 — Jon E. DeGuilio, Judge. ARGUED JANUARY 21, 2021
The investigation ultimately led officers to two men at the top of the drug-trafficking conspiracy: David Gibson and Jerry Harris. Both defendants were federally indicted for conspiring to distribute heroin. Before trial, the district court denied their motion to suppress evidence obtained through the cellphone tracking. The court treated the state court orders as valid search warrants for the tracking. At trial, officers and cooperators testified to the large-scale drug-trafficking scheme that the defendants had overseen. The jury ultimately convicted both defendants of conspiring to distribute one kilogram or more of heroin. At sentencing, the district court found that the defendants had conspired to distribute a total of 10.5 kilograms of heroin. The defendants now appeal the court‘s denial of their motion to suppress. Harris also challenges the drug-quantity calculations at trial and sentencing, the court‘s limits on his cross-examination of the cooperators at trial, and his sentence. We affirm the district court‘s well-reasoned rulings across the board.
I. Background
A. The Investigation
In late 2016 Ryan Williams was charged in Indiana state court for selling drugs. In March 2017, as an act of cooperation, Williams provided South Bend police the number to a phone (ending in -5822) that, he claimed, drug dealers in the
A few months into the investigation, officers sought to establish surveillance of the phone‘s location. In July 2017, officers submitted an affidavit to an Indiana state court judge requesting an order for Sprint, the phone‘s service provider, to supply 30 days of precise, real-time GPS location data for the phone. The affidavit described two separate controlled buys in which a confidential informant had called the phone and met someone who sold him heroin. One of the controlled buys had occurred two and a half months earlier; the other had occurred the day before. The affidavit did not cite
Based on the affidavit, an Indiana judge signed a “court order” finding probable cause to believe that the user of the -5822 phone had engaged in illegal drug possession and trafficking, and that precise tracking of the phone‘s location would facilitate the user‘s apprehension. Thus, the judge ordered Sprint to supply 30 days of precise, real-time GPS location data for the phone. As authority for the order, the judge
At the end of the 30-day period, officers submitted a second affidavit, requesting 30 more days of real-time cellphone tracking. The affidavit explained that, since obtaining the first court order, officers had carried out several more controlled buys using the same phone number. It described one of them in detail. The affidavit added that “this is a very complex organization with approximately fifteen members who utilize the [phone] to facilitate drug trafficking.” In all other respects, the second affidavit mirrored the first. Based on the affidavit, the state court judge signed another order, essentially identical to the first, authorizing 30 more days of real-time cellphone tracking.
The same series of events happened one more time. At the end of the second 30-day period, officers submitted a third affidavit, requesting 30 more days of GPS tracking data for the phone. This affidavit closely resembled the second one. It described in detail “one of several undercover officer buys” made in the previous 30-day period. The state court judge signed another materially identical order authorizing 30 more days of real-time cellphone tracking.
Officers eventually recovered the -5822 phone in October 2017 when they pulled over a man named Raymond Love for a traffic violation. Love had two “flip phones” on him, including the -5822 phone. Throughout the traffic stop, both phones rang nonstop.
B. Charges and Motion to Suppress
A federal grand jury indicted Gibson and Harris with one count of conspiring to distribute more than one kilogram of heroin between March and October 2017. See
C. Trial
The cases against Gibson and Harris were consolidated for trial. Various law enforcement officers testified, as did a few cooperating witnesses who had participated in the drug-trafficking conspiracy. Two of these cooperators were Williams and Loveless Daniel Naylor. Like Williams, Naylor was one of the street-level dealers who sold drugs directly to calling customers. Before the defendants went to trial, Williams pled guilty to conspiring to distribute one kilogram or more of heroin. Naylor pled guilty to possession with intent to distribute heroin.
Williams testified to the details of the drug-trafficking operation. Gibson ran the operation and Harris was his “right-hand man.” There were 20 to 25 dealers who worked in shifts. Gibson or Harris gave the dealers phones and “packs” of
Over Harris‘s objection, the court forbade defense counsel from cross-examining the cooperating witnesses about the specific sentences they hoped to avoid by testifying for the government. The court explained that defense counsel could ask about mandatory minimums and “substantial sentences” but could not reference specific terms of imprisonment. Otherwise the jury might infer what sentences the defendants themselves would receive if convicted.
The government introduced only 6.5 grams of heroin at trial. To prove the full quantity of drugs involved in the conspiracy, the government called DEA Task Force Officer Joseph Focosi. Officer Focosi used two different formulas to calculate drug quantity. First, he relied on Williams‘s testimony that he alone could sell up to six “packs” per day, with each pack containing 22 to 24 half-gram bags. Assuming that the dealers sold only one pack per day, and rounding the amount of heroin in a pack down to 10 grams, Officer Focosi testified that
Officer Focosi‘s second formula extrapolated drug quantity from phone calls. A DEA analyst had testified that, from the end of March 2017 through mid-October 2017, there were about 50,000 successful calls to the -5822 phone and 34,000 successful calls to the -9243 phone. Conservatively estimating that each transaction involved six phone calls and half a gram of heroin, Officer Focosi testified that the conspiracy involved 7 kilograms of heroin (84,000 total calls / 6 calls per transaction = 14,000 transactions x .5 grams per transaction = 7,000 grams).
Harris‘s counsel objected that the underlying testimony about calls per transaction had “not been that precise” and that Officer Focosi was offering an opinion based on his “experience and expertise” in deciding what number of calls to use. The district court overruled the objection. The court explained that whether six calls was a precise estimate went to the weight of the testimony, and that Officer Focosi was relying on what he had learned from the investigation rather than “exercising any experience.”
Defense counsel also objected to Officer Focosi‘s assumption that all 84,000 calls were between dealers and customers, when “presumably, there would be calls between a dealer and other people as well.” The court overruled this objection, too, explaining: “I think that‘s true, but that, again, goes to weight, and I think that‘s something you can explore on cross examination.”
On cross-examination, Officer Focosi testified that he chose six calls per transaction because “it was more than one
The jury found both defendants guilty of conspiring to distribute one kilogram or more of heroin.
D. Sentencings
The probation officer calculated each defendant‘s advisory Guideline range as 360 months to life. Both defendants had a criminal history category of VI, but Gibson‘s offense level (38) was one point higher than Harris‘s (37) because Gibson was an “organizer or leader” of the drug-trafficking operation whereas Harris was a “manager or supervisor.” See
Harris objected to the probation officer‘s conclusion that he had conspired to distribute 10.5 kilograms of heroin. See
The court sentenced both defendants well below the low end of the Guidelines range. Specifically, it sentenced Gibson to 240 months’ imprisonment and Harris to 262 months. The court explained the discrepancy at Harris‘s sentencing. At 47, Gibson was a bit older than Harris, who was 38. Moreover, Gibson had recently received a 144-month consecutive sentence in another case for carrying a firearm in relation to a drug-trafficking crime. See
II. Discussion
On appeal the defendants challenge the district court‘s admission of evidence obtained through the cellphone tracking. Harris also challenges the drug-quantity calculations at trial and sentencing, the district court‘s limits on his cross-
A. Cellphone Tracking
The defendants’ first contention is that officers violated the defendants’ Fourth Amendment rights by tracking the location of the -5822 phone without a warrant based on probable cause. They submit that the “court orders” authorizing the tracking were not valid warrants because they cited the Stored Communications Act, which requires a lesser showing than probable cause. See
A Fourth Amendment “search” generally requires a warrant based on probable cause. Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018); Katz v. United States, 389 U.S. 347, 357 (1967). The government does not dispute that the cellphone tracking in this case amounted to a “search” requiring a warrant, and we assume for purposes of this appeal that it did. Nonetheless, the government maintains that the search was lawful because a valid warrant authorized it. The district court agreed and denied the defendants’ motion to suppress. We review the district court‘s legal conclusions de novo and its factual findings for clear error. United States v. Jackson, 962 F.3d 353, 357 (7th Cir. 2020).
The court orders in this case satisfy the requirements for a search warrant. First, the defendants do not contend, and there is no reason to believe, that the state court judge who issued the orders was anything but neutral and detached. Next, the orders cited
We reject the defendants’ contention that the underlying affidavits did not supply probable cause. Probable cause for issuance of a search warrant exists if there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The state court judge‘s finding of probable cause “carries a strong presumption of correctness.” Sanchez-Jara, 889 F.3d at 421. Our task as “a reviewing court is simply to ensure that the [state court judge] had a substantial basis for concluding that probable cause existed.” Gates, 462 U.S. at 238-39 (internal quotations, citation, and alterations omitted).
We have held that a properly executed controlled buy is generally “a reliable indicator as to the presence of illegal drug activity.” United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006); see also United States v. Bacon, 991 F.3d 835, 839 (7th Cir. 2021) (“[C]ontrolled buys ordinarily go a long way toward establishing probable cause.“). Here, the affidavits described several controlled buys in detail, including the arrangement of the buys through calls to the -5822 phone. The first affidavit described two controlled buys involving the same confidential informant, whom officers searched, wired, and closely monitored. On two separate occasions, the confidential informant called the -5822 phone and successfully bought heroin, which he then turned over to the police. The second and third affidavits referenced the earlier orders and described additional, more recent controlled buys in which
The defendants do not contest the method or execution of the controlled buys. Instead, they complain that one of the controlled buys in the first affidavit was two and a half months old. That is true, but the other controlled buy in the first affidavit took place the day before the state court judge signed the first order. So, to the extent that the first controlled buy might have been “stale,” the “more recent” controlled buy mitigated that issue by showing that “the same kind of criminal activity continued” through the present day. United States v. Rees, 957 F.3d 761, 769-70 (7th Cir. 2020).
The defendants also suggest that the affidavits did not supply probable cause to track them, given that the affidavits did not mention them by name. But probable cause for a search warrant need not be tied to any particular person. See Gates, 462 U.S. at 238 (requiring “a fair probability that contraband or evidence of a crime will be found in a particular place“) (emphasis added); see also Bacon, 991 F.3d at 841. In this case, officers knew that the users of the -5822 phone were selling drugs, but they did not know who the users were. That is why they wanted to track the phone — to apprehend the users for drug trafficking. In line with that mission, the state court judge found probable cause to believe that the cellphone tracking would facilitate the apprehension of drug traffickers. This finding was enough for probable cause, even though the judge did not identify Gibson or Harris by name. See Dalia, 441 U.S. at 255 (“[T]hose seeking the warrant must
We therefore conclude that officers had a valid warrant to track the -5822 phone. The district court correctly denied the defendants’ motion to suppress. We need not address the government‘s alternative arguments that the good-faith exception applies, see United States v. Leon, 468 U.S. 897, 922 (1984), and that the defendants lack “standing” to challenge the cellphone tracking, see Byrd v. United States, 138 S. Ct. 1518, 1530 (2018). We note, however, that an officer‘s reliance on a warrant presumptively establishes that the officer acted in good faith in carrying out a search. Leon, 468 U.S. at 922; United States v. Lickers, 928 F.3d 609, 618 (7th Cir. 2019). Moreover, we are skeptical that either defendant has standing to challenge the cellphone tracking. There was no evidence at the suppression hearing that either defendant personally possessed or used the -5822 phone during the 90-day tracking period. The defendants maintain that the government conceded the defendants’ possession of the phone. But even if that is true, the evidence from trial suggests that the defendants had, at most, on-and-off possession of this cellphone that approximately two dozen drug dealers shared to sell drugs. And there is no evidence that either defendant ever used the phone for personal, rather than commercial, purposes. Just as drug dealers who briefly occupy stash houses while packaging drugs lack a legitimate expectation of privacy in the stash houses, the defendants here would seem to lack a legitimate expectation of privacy in the whereabouts of a shared drug phone. See Minnesota v. Carter, 525 U.S. 83, 90-91 (1998); United States v. Gray, 491 F.3d 138, 147 (4th Cir. 2007); H. Hunter
B. Drug-Quantity Calculations
Apart from the cellphone tracking, Harris takes issue with the drug-quantity calculations at trial and at his sentencing.
1. Trial
Harris submits that Officer Focosi‘s trial testimony was unreliable and ran afoul of the rules governing expert testimony. See
Harris did not move for a judgment of acquittal, so we review the jury‘s drug-quantity determination only for a “manifest miscarriage of justice.” United States v. Chaparro, 956 F.3d 462, 468 (7th Cir. 2020) (internal quotations and citation omitted). This means that the jury‘s verdict stands unless “the record is devoid of evidence pointing to guilt, or ... the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” Id. (internal quotations and citation omitted).
Harris‘s challenge to the jury‘s drug-quantity determination goes nowhere because the government offered the jury
2. Sentencing
Harris also challenges the district court‘s calculation of the drug quantity at sentencing. Whereas the government asked the jury to find that Harris conspired to distribute one
A defendant attacking a district court‘s factual findings at sentencing has “a steep hill to climb.” United States v. Ranjel, 872 F.3d 815, 818 (7th Cir. 2017). We “will not disturb a sentencing court‘s factual findings unless they are clearly erroneous.” Id. The government must prove drug quantity by a preponderance of the evidence. United States v. Medina, 728 F.3d 701, 705 (7th Cir. 2013).
The Sentencing Guidelines tie a defendant‘s offense level to the quantity of drugs involved in the offense. See
Drug-quantity calculations are “not an exact science.” United States v. Sewell, 780 F.3d 839, 849 (7th Cir. 2015). “Determining drug quantities under the Sentencing Guidelines is often difficult, and district courts may make reasonable though imprecise estimates based on information that has indicia of reliability.” United States v. Bozovich, 782 F.3d 814, 818 (7th Cir. 2015). The Guidelines do not permit “‘nebulous eyeballing,‘” but “some amount of reasoned ‘speculation and reasonable estimation‘” is permissible. United States v. Hollins, 498 F.3d 622, 631 (7th Cir. 2007) (quoting United States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998)).
Here, the district court properly relied on the evidence in the record to conservatively calculate the drug quantity. Its calculation was not clear error. All three numbers that the court plugged into Officer Focosi‘s second formula (84,000 total calls / 4 calls per transaction = 21,000 transactions x .5 grams per transaction = 10,500 grams) had a firm basis in the record. Harris does not challenge the half-gram-per-transaction figure, nor could he. Williams, Naylor, and an officer involved in the controlled buys testified that the heroin was prepackaged and sold in half-gram increments. Most customers bought between one and ten half-gram bags at a time, though some bought as many as fifteen. One half-gram bag per transaction was thus an extremely conservative estimate.
Harris directs most of his criticism to the third figure — 84,000 total calls. But this number, too, had a firm basis in the record. A DEA analyst reviewed phone records and testified that there were 84,000 successful calls to the two drug phones during the conspiracy. Harris insists that any number of these calls could have been unrelated to drugs. And to be sure, Officer Focosi conceded at trial that he could not rule out the possibility that some of the calls were unrelated to drug
Harris relies heavily on United States v. Howard, 80 F.3d 1194 (7th Cir. 1996). But the problem in Howard was the probation officer‘s failure to explain the evidentiary basis for the drug-quantity calculation. As we said: “Where either the probation officer or the prosecution offers an estimate of the drug quantities for which the defendant should be held responsible, the defendant ought to be on notice of all assumptions, rationale, and methodology underlying the calculation.” Id. at 1204. Here, the government‘s methodology was transparent. It derived from specific testimony that the government offered at trial. Harris tested the reliability of that testimony through cross-examination. Indeed, he bases his challenge to the court‘s drug-quantity calculation primarily on concessions that he obtained from Officer Focosi at trial. Unlike the defendant in Howard, Harris could, and did, challenge the government‘s methodology because he knew the evidentiary basis for it. A disputed evidentiary basis is not the same thing as no evidentiary basis. This distinction renders Harris‘s out-of-circuit citations equally inapposite. See United States v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993); United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993); United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992).
For these reasons, the district court did not clearly err in calculating the drug quantity at Harris‘s sentencing. And even if it did, any error was harmless. At Harris‘s sentencing, the court said on the record that, even if it had calculated the Guidelines range differently, it would vary to the same range and impose the same sentence based on its independent consideration of the sentencing factors under
C. Cross-Examination of Cooperators
Harris argues next that the district court improperly constrained his cross-examination of cooperating witnesses. He says he should have been allowed to question Williams and Naylor about the specific sentences they hoped to avoid by testifying for the government.
The Sixth Amendment guarantees a criminal defendant the opportunity to effectively cross-examine witnesses against him. United States v. Trent, 863 F.3d 699, 704 (7th Cir. 2017). But this right is not absolute: “a district court has discretion to place reasonable limits on cross-examination, especially when necessary to prevent irrelevant or confusing evidence from being presented to the jury.” Id. Such irrelevant or confusing evidence includes “information from which [the jury] could infer defendants’ potential sentences.” Id. at 705.
Federal juries do not decide sentences in noncapital cases, so specific sentencing information “might confuse or mislead the juries in their true task: deciding defendants’ guilt or innocence.” Id. The risk is that “the reality of a serious sentence could prejudice the jury and cause it to acquit the defendants of crimes they actually committed.” United States v. Hunter, 932 F.3d 610, 619 (7th Cir. 2019). For these reasons, we have
Our standard for reviewing a district court‘s limit on cross-examination “depends on whether the court‘s limit ‘directly implicates the core values of the Confrontation Clause.‘” Trent, 863 F.3d at 704 (quoting United States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009)). If it does, our review is de novo; if it does not, we review for abuse of discretion. Id. The core values of the Confrontation Clause include allowing the defendant “to expose a witness‘s motivation for testifying, his bias, or his possible incentives to lie.” Id. at 705 (quoting Recendiz, 557 F.3d at 530). “But that value is only offended when ‘the defense is completely forbidden from exposing the witness‘s bias.‘” Id. (quoting United States v. Sanders, 708 F.3d 976, 990 (7th Cir. 2013)). When the defense has “a reasonable opportunity to question witnesses about their biases, the Sixth Amendment is not implicated.” Id.
The district court‘s limits on Harris‘s cross-examination of Williams and Naylor did not implicate the core values of the Sixth Amendment. The court imposed a limited restriction on Harris‘s cross-examination. It only forbade Harris from questioning Williams and Naylor about the exact sentences they hoped to avoid. It otherwise gave Harris free reign to ask the witnesses about mandatory minimums and “substantial sentences.” See Trent, 863 F.3d at 705-06.
And Harris took full advantage. Williams testified on cross-examination that, although he was a felon with two guns on him at the time of his arrest, the government never charged him with being a felon in possession of a firearm. See
For his part, Naylor testified on cross-examination that the government agreed to dismiss a
This testimony shows that Harris could, and did, question the cooperators at length about their potential biases and motives to lie. As such, we review for abuse of discretion. Trent, 863 F.3d at 704. To decide if the court abused its discretion, we ask “whether the jury had sufficient information to make a discriminating appraisal of the witness‘s motives and biases.” Id. at 706 (quoting Sanders, 708 F.3d at 991). The district court gave Harris wide latitude to cross-examine the cooperators
Harris counters that Trent and Hunter should not apply here because Williams and Naylor were not codefendants in the defendants’ case. But what matters under Trent and Hunter is that the jury might infer the defendants’ potential sentences from the cooperators’ potential sentences. See Trent, 863 F.3d at 705; Hunter, 932 F.3d at 619. Here, Williams was charged separately, but he faced the same exact charge as the defendants: conspiracy to distribute at least a kilogram of heroin. See
Naylor, on the other hand, pled guilty to possession with intent to distribute heroin, see
While it‘s not the exact same charge, it is under the same statute. I believe the offense to which he pled
guilty to constitutes one of the lesser includeds that the Court intends to give, and the plea agreement does, in fact, state that there‘s a mandatory minimum of five years, which I think would give some insight into what these defendants might be looking at if convicted of these charges.
The court carefully and permissibly exercised its discretion. We acknowledge, as we did in Hunter, that sharing specific sentencing information with the jury is of concern when the cooperators and defendants face the same or similar charges. Hunter, 932 F.3d at 619. Here, though, the court reasonably concluded that the charge to which Naylor pled guilty was similar enough to the defendants’ charges that the jury might try to “deduce or infer the sentences facing the similarly-charged defendants” from information about Naylor‘s sentence. Id. On these facts, we see no abuse of discretion.
We thus affirm the district court‘s limits on Harris‘s cross-examination of Williams and Naylor. Harris‘s only other argument on this score is a perfunctory and conclusory plea for us to overrule Trent and Hunter. This argument is waived. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (“[E]ven arguments that have been raised may still be waived on appeal if they are underdeveloped, conclusory, or unsupported by law.“).
D. Harris‘s Sentence
Finally, Harris argues that his sentence of 262 months’ imprisonment is substantively unreasonable because it is 22 months longer than Gibson‘s, even though Gibson was an “organizer or leader” of the drug-trafficking scheme whereas
We review the reasonableness of a sentence for abuse of discretion. Castro-Aguirre, 983 F.3d at 943. A below-Guidelines sentence is presumptively reasonable. Id. at 944. “Indeed, we have never ‘deemed a below-range sentence to be unreasonably high.‘” Id. (quoting United States v. Brown, 932 F.3d 1011, 1019 (7th Cir. 2019)).
The district court did not abuse its discretion in sentencing Harris to 262 months’ imprisonment — a sentence that fell nearly 100 months below the low end of the advisory Guidelines range of 360 months to life. As Harris points out, the district court had to consider, among other sentencing factors, “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
III. Conclusion
For these reasons, we affirm the defendants’ convictions and sentences.