USA v. Nicholas Clark, No. 14-2689 (7th Cir. 2016)

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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 14 1363, 14 1364, 14 1426 & 14 2689 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JERRY BROWN, et al., Defendants Appellants. ____________________ Appeals from the United States District Court for the Central District of Illinois. No. 12 cr 40031 — Sara Darrow, Judge. ____________________ ARGUED NOVEMBER 9, 2015 — DECIDED MAY 13, 2016 ____________________ Before WOOD, Chief Judge, ROVNER, Circuit Judge, and SHAH, District Judge.* WOOD, Chief Judge. This case involves a conspiracy to dis tribute crack cocaine in Kewanee, Illinois, and surrounding areas. Spotting the opportunity for profit, Chicago drug dealer Frederick Coleman and a colleague began to focus on * Of the Northern District of Illinois, sitting by designation. 2 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 Kewanee in late 2008. Eventually, Jerry Brown, Darrion Ca pers, Nicholas Clark, Qubid Coleman, and James Tatum (among others) joined their operation. The police eventually caught up with them, and in 2012 they were charged by a grand jury with conspiracy to distribute and possess with in tent to distribute at least 280 grams of crack cocaine, in viola tion of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Qubid Cole man and Tatum pleaded guilty and are not part of this appeal. Frederick Coleman, Brown, Capers, and Clark were convicted after a jury trial and sentenced to varying terms of imprison ment and supervised release. These four have appealed. Be fore this court, they raise challenges to both their convictions and their sentences. Finding no reversible error, we affirm the judgments of the district court. I Throughout the twelve day trial, the government pre sented evidence that Frederick Coleman and his colleague, Dorian Thompson, had been selling drugs in Chicago for some time. (From this point, our references to “Coleman” mean Frederick unless we specify otherwise.) In 2008, they re alized that there were untapped profit opportunities in Kewanee. They tested the potential new market by jointly purchasing some powder cocaine, cooking it into crack, and selling it there. Pleased with the results, they invited Nicholas Clark to join shortly thereafter; Clark acted as the Kewanee operation’s first “runner,” helping to deliver the drugs to cus tomers and collect money. Coleman ended his alliance with Thompson in early 2009, when he entered into a partnership with Brown. Participating runners included Clark, Capers, Tatum, Qubid Coleman, and others. Nos. 14 1363, 14 1364, 14 1426 & 14 2689 3 The government’s theory was that Coleman and Brown obtained the cocaine in Chicago, cooked it into crack with the help of the runners at different locations in Kewanee and Chi cago, and had various members of the conspiracy transport either the powder or the crack from Chicago to Kewanee. Members of the conspiracy sometimes elicited assistance from customers and sometimes compensated those customers with crack. The conspiracy’s members used Western Union and MoneyGram to circulate money among sellers, purchas ers, and wholesalers, often handing cash to family members, friends, or customers and directing that they conduct a trans fer. Kewanee law enforcement officers became aware of the operation and conducted eight controlled buys with four of the conspiracy’s customers. At trial, the government backed up the controlled buy testimony with audio and video re cordings of the exchanges and call logs from the three cell phones the conspiracy’s members used for drug sales. The government also presented evidence of the Western Union and MoneyGram transactions, along with testimony by some of the people involved in the transactions; jail calls between arrested members of the conspiracy and members not yet ar rested; evidence of drugs and drug money; and extensive tes timony by members of the conspiracy, eleven customers, and various other involved witnesses. After the jury convicted, the court sentenced the four defendants as follows: Coleman and Brown received mandatory life sentences, to be “followed” by ten years of supervised release; Capers was sentenced to 188 months’ imprisonment and five years’ supervised release; and Clark received a 120 month sentence, followed by ten years of supervised release. 4 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 II A The defendants raise a number of challenges to the district court’s handling of the evidence at trial. We review these rul ings for abuse of discretion. United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir. 1990) (“appellants carry a heavy burden in challenging the trial court’s evidentiary rulings on appeal because a reviewing court gives special deference to the evi dentiary rulings of the trial court.” Id. at 1489–90 (internal quotation marks omitted)). They also assert that the cumula tive errors were so serious that they did not receive the due process that is guaranteed by the Constitution; we review this de novo. Finally, Coleman, Brown, and Capers challenge vari ous aspects of their sentences; we review these arguments us ing a mixed standard of review. 1 Before trial, the defendants learned that the government intended to use the MoneyGram and Western Union records in its case in chief. They filed a motion in limine to prevent this, but they were unsuccessful, and so they objected again at trial. The government had obtained through subpoenas the records of the two companies showing wire transfer transac tions between the defendants and others allegedly involved in the conspiracy. The lead investigator in the case, Inspector Nicholas Welgat, created summary exhibits from the subpoe naed records. The summaries grouped transactions by sender and listed the amount of money sent, the date of the transac tion, the sender’s name and address, the recipient’s name, and the agency from which the funds were sent. The exhibits in cluded the sender’s phone number and recipient’s address for Nos. 14 1363, 14 1364, 14 1426 & 14 2689 5 some transactions. The government witnesses testified that the summary exhibits were generally consistent with their recollections of the drug transactions in which they had en gaged with the defendants, and the government later moved to admit the actual exhibits through Inspector Welgat. The court admitted the exhibits as summaries of records of regularly conducted activity, colloquially known as “busi ness records.” Federal Rule of Evidence 1006 authorizes a pro ponent of evidence to use a “summary, chart, or calculation to prove the content of voluminous writings, recordings, or pho tographs that cannot be conveniently examined in court,” provided that the proponent makes the content available to the other party. Federal Rule of Evidence 803(6) allows admis sion of hearsay documents that record a “regularly conducted activity” where (A) the records are made “at or near the time” of the activity “by—or from information transmitted by— someone with knowledge;” (B) the records are “kept in the course of a regularly conducted activity of a business, organ ization, occupation, or calling;” (C) “making the record [i]s a regular practice of that activity;” (D) “all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification;” and (E) “neither the source of the information nor the method or circumstances of prepara tion indicate a lack of trustworthiness.” Federal Rule of Evi dence 902(11) identifies “certified domestic records of a regu larly conducted activity” as “self authenticating” where the custodian or other qualified person does the certifying in compliance with a federal statute or Supreme Court rule. The defendants maintain that the involvement of a third party in creating the MoneyGram and Western Union rec 6 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 ords—namely, the customer making the wire transfer—re moves those records from the ambit of Rule 803(6). But third party involvement is not inevitably fatal. In United States v. Emenogha, 1 F.3d 473, 484 (7th Cir. 1993), we found that “addi tional sources of corroboration” can “cure the hearsay prob lem” that a third party’s involvement in creating a business record introduces. There, the defendant argued that bank rec ords of drug money transactions purportedly conducted by him were inadmissible because an imposter might have been impersonating him at the bank. We found his argument unavailing because the bank pres ident testified that he recognized the defendant as a customer, and the bank’s regular practice was to request an identifica tion and account number before completing a transaction. Id. We contrasted the situation in Johnson v. Lutz, 170 N.E. 517 (N.Y. 1930), a New York case in which the state court found a police report inadmissible as a business record because it in cluded information provided by a bystander, rather than facts personally known by the officer making the record. It was critical for admissibility in Emenogha that the bank required an ID and had a witness who could confirm the identity. 1 F.3d at 484 (comparing United States v. Lieberman, 637 F.2d 95, 100 (2nd Cir. 1980), where the Second Circuit denied admission of a hotel guest card, part of which was filled out by the guest, because it was not the hotel’s practice to request identification; with United States v. Zapata, 871 F.2d 616, 625–26 (7th Cir. 1989) (abrogated on other grounds) (registration card admissible because the hotel’s practice was to verify identification and witnesses testified that they met the person at the hotel). The First and Tenth Circuits have directly addressed West ern Union records. The Tenth Circuit found Western Union Nos. 14 1363, 14 1364, 14 1426 & 14 2689 7 records inadmissible to prove the identity of the senders of money, because no identification was required to send money, but the records could be used to prove the identity of recipi ents because identification was required to receive the money. United States v. McIntyre, 997 F.2d 687, 701–02 (10th Cir. 1993). The First Circuit similarly concluded that Western Union rec ords provided by the company could not be admitted to prove the identity and address of the sender. United States v. Vigneau, 187 F.3d 70, 77 (1st Cir. 1999). Taking all this into account, we find no abuse of discretion in the district court’s decision to admit the Western Union and MoneyGram records here. We agree with the defendants that certification alone would not be enough: a Rule 902(11) certi fication cannot overcome Rule 803(6)’s requirement that the records must be trustworthy. And a government witness tes tified that Western Union and MoneyGram did not require identification for transfers of less than $1,000, meaning that one of the forms of corroboration used in Emenogha and Za pata was not present for at least some of the transactions. But the record contains more than certifications: we have the tes timony of the witnesses about their recollections of actually conducting the transactions, and that testimony fills any gap left by the certifications. We grant that the records and the testimony were not fully consistent: some witnesses testified that the summaries in cluded some transactions that they recalled conducting and some that they did not. But we need not conduct a case by case inquiry into each transaction. Any inconsistencies go to the weight of the evidence, not its admissibility. See United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985) (“The de terminations whether a proper foundation has been laid for 8 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 application of the business records exception to a particular document and whether the circumstances of the document’s preparation indicate untrustworthiness are within the discre tion of the trial court.”); United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013) (finding no abuse of discretion in admission of pharmacy drug purchase records, noting that a driver’s li cense was required for the purchases and a signature was ob tained for many of them, and “Towns was free to make argu ments at trial that he was not the actual purchaser of the drugs, but accuracy does not control admissibility.”). The gov ernment’s use here of summary charts that were not fully cor roborated by their witnesses may have been sloppy, but the evidence was reliable enough to reach the jury. Any further discounting was for the jury to make. 2 We add that even if the district court’s admission of the summary exhibits was error, that error was harmless. See FED. R. CRIM. P. 52(a). Improper admission of evidence is harmless where the remaining evidence of guilt is overwhelming. United States v. Hanson, 994 F.2d 403, 407 (7th Cir. 1993). Harm results only when there is a “substantial and injurious effect or influence on the jury’s verdict.” Id. (internal quotations marks omitted). The defendants paint the MoneyGram and Western Union records as the “lynchpin” of the government’s case and thus, if admitted improperly, harmful. But the evidence of their guilt was overwhelming. It included testimony from more than a dozen witnesses who purchased crack cocaine or worked with the defendants and knew the day to day opera tions of the conspiracy, eight controlled buys monitored by law enforcement, and phone records and recorded jail calls in Nos. 14 1363, 14 1364, 14 1426 & 14 2689 9 which members of the conspiracy plotted to cover up and maintain the conspiracy after their arrest. This is more than enough to render any error with regard to the summaries harmless. B Defendants raise a separate Confrontation Clause objec tion to the district court’s admission of testimony about the Western Union and MoneyGram records. Because this claim was not raised at trial, we review it only for plain error. See FED. R. CRIM. P. 52(b). Reversal is appropriate only if there was a “clear or obvious error that affected the outcome of the trial.” United States v. Dumeisi, 424 F.3d 566, 576 (7th Cir. 2005). Because the records in question were nontestimonial, there was no error of this type, let alone plain error. The Confrontation Clause applies only to testimonial evi dence. U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Where testimonial evidence is at issue, how ever, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross ex amination.”). Testimonial statements are formal statements to government officers, or formalized testimonial materials such as affidavits, depositions, and the like, that are destined to be used in judicial proceedings. See Crawford, 541 U.S. at 51–52; see also Bullcoming v. New Mexico, 564 U.S. 647 (2011) (blood alcohol report testimonial); Michigan v. Bryant, 562 U.S. 344 (2011) (statements to police during ongoing emergency not testimonial); Melendez Diaz v. Massachusetts, 557 U.S. 305, 309– 10 (2009) (certificates from laboratory analysts identifying a narcotic substance testimonial); Davis v. Washington, 547 U.S. 813, 829–30 (2006) (statements made to 911 operator not testi monial). 10 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 Business records are generally nontestimonial. Crawford, 541 U.S. at 56. Logically, if they are made in the ordinary course of business, then they are not made for the purpose of later prosecution. Id. In United States v. Ellis, 460 F.3d 920, 926, 927 (7th Cir. 2006), we held that hospital blood and urine test records were admissible as business records because they were made “in the ordinary course of business,” were “rou tine,” and were “too far removed from the principal evil at which the Confrontation Clause was directed to be consid ered testimonial.” Id. (internal quotation marks omitted). The same can be said about the Western Union and MoneyGram records. They were routine and prepared in the ordinary course of business, not in anticipation of prosecution. The rec ords were therefore nontestimonial, and the defendants were not entitled under the Sixth Amendment to confront the per sons who created them. C The defendants also raised claims under Brady v. Mary land, 373 U.S. 83 (1963), in their motion for a new trial under Federal Rule of Criminal Procedure 33—a motion that the dis trict court denied. We review this ruling for abuse of discre tion. United States v. Stallworth, 656 F.3d 721, 731 (7th Cir. 2011). To prevail, defendants need to show “(1) that the pros ecution suppressed evidence; (2) that the evidence was favor able to the defendant; and (3) that it [was] material to an issue at trial.” Id. Material evidence is that which creates a “reason able probability that, had [it] been disclosed to the defense, the result of the proceeding would have been different.” Id. Even when evidence material to the credibility of government witnesses is made available as late as during trial, there is still no Brady violation as long as the defense has “an appropriate Nos. 14 1363, 14 1364, 14 1426 & 14 2689 11 opportunity to incorporate that information into their cross examination … .” United States v. Knight, 342 F.3d 697, 706 (7th Cir. 2003). Defendants allege several Brady violations: the sup pression of information related to witness John Hart, the fail ure to inform the defense that government witness Ed Kolata had suffered a brain injury, and the suppression of infor mation about inconsistent grand jury testimony by witnesses Heather Murphey and Jennifer Ince. After being found with crack paraphernalia, Hart agreed to become a confidential source for the government. As a re sult of his cooperation, he was not charged. Defendants were notified of this fact in a September 29, 2012, letter; Hart testi fied at trial on May 20, 2013. There he denied that he had been arrested and that he had received any benefit in exchange for being a confidential informant. The district court decided that he had not perjured himself. Defendants argue that the gov ernment violated Brady by misleading defense counsel about who would be the best witness to impeach Hart. But the de fendants knew that Hart had lied, and the prosecution has no obligation to assist the defense in crafting a trial strategy. Be cause the government did not suppress information about Hart’s arrest, there was no Brady violation. Neither did the government suppress information about Kolata’s brain injury: it was not aware of the injury until Ko lata’s questioning on cross examination. The defendants have pointed to no evidence that would suggest that the govern ment became aware of the injury any earlier than the defense did. Additionally, defense counsel was able to cross examine Kolata fully about the details of his injury. The defendants next allege that the government sup pressed the fact that Murphey and Ince lied to the grand jury 12 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 about when and how often they purchased crack from the de fendants. The defendants point to testimony during Welgat’s cross examination that reveals that he was aware of what the two witnesses had said to the grand jury. There is no evidence, however, indicating that Welgat knew that the women in tended to tell a different story at trial. Without that, there is no suppression and no Brady violation. Once again, the de fendants were able to explore these witnesses’ inconsistencies on cross examination. The defendants raise one last perplexing Brady theory: that the government failed to disclose statements by defendants that it intended to use at trial involving threats to witnesses. But Brady material must be exculpatory. See United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001). These statements are about as far from exculpatory as one can imagine. They are not covered by Brady. D Cumulative trial error that is so serious that the proceed ing violated the defendant’s due process rights can be demon strated by (1) identifying at least two errors committed during trial and (2) establishing that the errors considered together, along with the record, so infected the jury’s deliberation that they denied the appellants a fundamentally fair trial. United States v. Avila, 557 F.3d 809, 821–22 (7th Cir. 2009). Even if this standard is met, reversal is not warranted if the error was harmless “beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). Because the defendants have demon strated at most one colorable trial error—improper admission of summary exhibits of MoneyGram and Western Union transfer records—we have no “cumulative” error to consider. Furthermore, the evidence of guilt was strong enough that Nos. 14 1363, 14 1364, 14 1426 & 14 2689 13 even if the defendants were correct about all their alleged er rors, they cannot prevail: any error was harmless beyond a reasonable doubt. III We now turn to Brown, Coleman, and Capers’s challenges to their sentences. We review the district court’s determina tion of facts at sentencing for clear error, and its interpretation of the guidelines and other statutory enhancements de novo. United States v. Hinds, 770 F.3d 658, 662 (7th Cir. 2014); United States v. Reeves, 695 F.3d 637, 639 (7th Cir. 2012). A Brown and Coleman argue that their sentences—manda tory life terms because of prior drug felonies pursuant to 21 U.S.C. § 841—are improper because a jury did not find the ex istence of their prior felonies. This argument is foreclosed by Almendarez Torres v. United States, 523 U.S. 224 (1998) (reject ing petitioner’s claim that commission of a prior crime is an element of the offense that a jury must find beyond a reason able doubt.). Almendarez Torres remains good law after Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that all facts that increase a mandatory minimum sentence must be found by jury), and so we are bound to follow it. B Capers was sentenced to 188 months, based on an offense level of 34 and a criminal history category of III, which yields a Sentencing Guidelines range of 188 to 235 months. His of fense level was based on his conviction of conspiracy and the court’s calculation that he was responsible for the sale of be tween 840 grams and 2.8 kilograms of cocaine base. Capers 14 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 argues that the district court made two errors. First, he con tends that it miscalculated the quantity of cocaine base at tributable to him as a member of the conspiracy. Second, he maintains that because he was a member of the conspiracy for only about four months, his sentence should not be longer than the 120 month sentence given to Clark, who was in volved in the conspiracy for more time. Although the jury convicted Capers of a crime involving only a named quantity of “at least 280 grams” of crack co caine, the district court was required at sentencing to estimate the actual quantity of drugs attributable to him. United States v. Booker, 543 U.S. 220 (2005). The court may use trial testi mony, testimony at sentencing, and other evidence to make the determination; we review the calculation for clear error. See, e.g., United States v. Bautista, 532 F.3d 667, 674 (7th Cir. 2008). The court held all four defendants responsible for the same quantity of cocaine base. The court was purposefully conservative, basing its calculation on one year of the three year conspiracy. It estimated that the defendants sold approx imately $30,000 worth of crack cocaine each week, in $500 bundles that contained at a minimum 2.5 grams of crack. This amounted to 150 grams of crack per week. Based on Capers’s 16 week involvement in the conspiracy, the court attributed 2.4 kilograms of crack cocaine to him. The Sentencing Guidelines commentary provides that a defendant is liable for all of the drugs being sold for which he is directly involved, as well as all other sales which are rea sonably foreseeable and within the scope of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B) cmt. n.2 (2012). For Capers’s sentence to stand, there must be sufficient evidence to support not only Nos. 14 1363, 14 1364, 14 1426 & 14 2689 15 the district court’s finding of the quantity of drugs being sold by the whole operation every week, but also its assessment of Capers’s role in the operation. Capers argues that the only di rect evidence implicating him involves a maximum of ap proximately 8.5 grams of cocaine—the sum of the drugs in volved in a controlled buy in which he participated and the drugs and cash later found on him at arrest. He urges that the evidence does not show that the extent of the sales operation was foreseeable to him. The government tried to bolster the trial record with testi mony at sentencing from Qubid Coleman, who pleaded guilty to his involvement in the conspiracy, to demonstrate Capers’s role. But the court found that Qubid lacked credibil ity and declared that it would not rely on his account. Rather, the court chose to rely on Tatum’s trial testimony about the quantity of drugs sold. Tatum testified that he had not “necessarily conspired with” Capers and had not met him before to their arrest. Ac cording to the Presentence Investigation Report (PSR), Qubid Coleman, Tatum, Clark, and Capers were all “runners” in the conspiracy. They slept at customers’ homes and sometimes cooked powder into crack cocaine and stored it with the cus tomers as well. But Tatum and Capers were never “runners” at the same time: Capers filled the position Tatum left open. The PSR stated that “[a] role reduction [for Capers] is not war ranted because the defendant was an essential part of the dis tribution network and had complete knowledge of the scope of the conspiracy.” At sentencing, the district court judge resolved the quan tity issue with these comments: 16 Nos. 14 1363, 14 1364, 14 1426 & 14 2689 I think that there’s a few different theories to ar gue why the full weight of the conspiracy would be appropriate to attribute to Mr. Capers, but I don’t think it’s necessary. I still think he’s appro priately at a level 34 because if you take 150 grams per week times 16 weeks, that’s 2.4 kilos which falls squarely within offense level of 34. So, based on that, the Court takes the proba tion’s position … and the appropriate level is 34. The court declined to attribute the whole length of the con spiracy to Capers, but it did attribute the full drug amounts involved during the 16 weeks of his involvement. The court otherwise adopted the PSR, but neither the court nor the PSR identified a specific evidentiary basis for attrib uting the whole scope of the conspiracy to Capers. Nonethe less, there is sufficient evidence in the record to conclude that Capers was aware of the scope of the conspiracy, and the dis trict court did not commit clear error by adopting the PSR’s conclusion to that effect. Tatum testified at trial that he and “Money” (Qubid Coleman) sold about $10,000 of crack co caine per day at the height of his involvement in the conspir acy. Tatum received drugs directly from the leaders—“Black” (Frederick Coleman) and “Jake” (Jerry Brown)—or picked them up from a stash house. Frederick Coleman and Brown would put customers in touch with Tatum and Qubid Cole man through Tatum’s personal cell phone or through a sepa rate phone that was just for the drug sales. It was reasonable for the district court to adopt the PSR’s finding that Capers was a participant and that Capers’s involvement resembled Tatum’s; this in turn supports the finding that Capers was aware of the full scope of the conspiracy. Nos. 14 1363, 14 1364, 14 1426 & 14 2689 17 Capers also contends that his sentence is unreasonably long as a substantive matter, because it exceeds the term that Clark received. A sentencing court must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Some sentencing disparities are reasonable, and others are not. United States v. Meza, 127 F.3d 545, 549 (7th Cir. 1996). Disparities between co defend ants that result from use of the Guidelines are reasonable. Id. An unreasonable disparity is “a disparity in sentences that cannot be explained by a comparison of each defendant against the Guidelines as a set of rules.” Id. at 550. The district court found Capers and Clark responsible for the same quantity of crack cocaine: between 840 grams and 2.4 kilograms. Clark’s sentence was lower because his crimi nal history score was lower and he was eligible for U.S.S.G. § 5C1.2(a)’s “safety valve” provision. The court also found that Clark was involved in the conspiracy “to a lesser degree” than Capers. A sentence “within a properly ascertained range … cannot be treated as unreasonable by reference to 3553(a)(6).” United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Because the district court did not commit clear er ror in calculating the drug quantity attributable to Capers, and the resulting Guidelines range differed for Capers and Clark because of the other factors, we reject Capers’s argu ment that his sentence was unreasonably long. IV We AFFIRM the judgments of the district court in each de fendant’s case.

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