United States v. Keith Carr , 695 F. App'x 953 ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 17, 2017
Decided June 9, 2017
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1326
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:11-CR-00682
KEITH CARR,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Keith Carr was convicted of conspiracy to distribute more than one kilogram of
heroin and sentenced to twenty years’ imprisonment. On appeal, he challenges the
sufficiency of the evidence presented at trial, the district court’s exclusion of
impeachment evidence against a government witness, and his sentence. Finding his
arguments meritless, we affirm the judgment of the district court.
No. 16-1326 Page 2
I. Background
In the summer of 2009, federal, state, and local law enforcement organizations in
Chicago began an investigation into Keith Carr, who was suspected of operating a large
narcotics trafficking operation. The investigation involved a series of controlled buys of
heroin by a confidential informant as well as more than a year of wiretap and physical
surveillance. Finally, on October 3, 2011, the government filed a single-count criminal
complaint against Carr, charging him with conspiring to distribute in excess of one
kilogram of a mixture and substance containing a detectable amount of heroin, in
violation of 21 U.S.C. §§ 846 & 841(a)(1). On December 6, a grand jury returned an
indictment charging Carr and his co-conspirators with the conspiracy offense and two
less severe narcotics offenses. 1
On December 12, 2011, the government filed an Information pursuant to 21
U.S.C. § 851 stating its intention to seek increased punishment based upon a prior
felony narcotics offense. Upon electronic filing, that Information was served on all
parties of record, including Carr. However, due to a clerical error in the district court
clerk’s office, the docket entry containing the Information was removed from the docket
the next day. The clerk’s office had originally alerted the government that the
Information had been erroneously filed, but the office then said that it taken care of the
issue and no further action by the government would be necessary.
On December 21, 2011, the government produced a certified copy of Carr’s 2002
Illinois conviction for possession of a controlled substance upon which the Information
was based. Thereafter, the government and defense counsel had several conversations
referencing the Information in an attempt to reach a plea agreement. Defense counsel
also acknowledged, in a motion to continue the trial date, that the mandatory minimum
would be twenty years because of the Information.
Trial began on June 3, 2013. The government presented two witnesses who
testified that they were Carr’s co-conspirators and they had mixed, packaged, and dealt
at least five kilograms of heroin at Carr’s direction during the conspiracy. The co-
conspirators testified under the terms of plea agreements that they had signed. The
government supplemented the witness testimony with evidence from surveillance,
1
The other offenses were: (1) ten counts of distributing a mixture and substance containing a detectable
amount of heroin, in violation of 21 U.S.C. §§ 846 & 841(a)(1); and (2) two counts of using a cell phone in
furtherance of a drug trafficking crime, in violation of 21 U.S.C. § 843. Because these offenses carry lesser
sentences than the conspiracy charge, they are not relevant to the appeal.
No. 16-1326 Page 3
wiretapped recordings, and records of controlled buys. The jury found Carr guilty on
all counts and the government moved for detention, citing the twenty-year mandatory
minimum sentence. Carr did not contest the application of the mandatory minimum.
During preparations for sentencing, the government discovered that the
Information was not on the docket despite the clerk’s office’s earlier assurances that the
issue would be resolved. The government so advised the district court, which held a
series of status hearings on the matter. In the end, the district court agreed with the
government that a clerical error had caused the removal. The court concluded that Carr
had proper notice of the Information and that he had not been deprived of due process.
At sentencing, the court found that Carr was responsible for more than three kilograms
of heroin and that the four-level leadership enhancement was applicable, amounting to
a Guidelines range of 210 to 262 months. The court sentenced Carr to the mandatory
minimum of 240 months’ imprisonment. Carr timely appealed.
II. Discussion
Carr makes four arguments: (1) the evidence presented at trial was insufficient
for a reasonable jury to convict him; (2) the district court erred by not permitting him to
impeach one of his co-conspirators by introducing the witness’s 1997 conviction for
attempted murder; (3) the government was not entitled to rely on the Information
because it had been removed from the docket; and (4) the district court’s factual
findings at sentencing regarding the quantity of heroin and the leadership enhancement
were clearly erroneous. We consider each in turn.
A. Sufficiency of the Evidence
When we are confronted with a challenge to the sufficiency of the evidence to
maintain a conviction, “[w]e do not weigh the evidence or assess the credibility of
witnesses.” United States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir. 2006). “Instead,
we view the evidence in a light most favorable to the government and reverse only
when there is no evidence, no matter how it is weighed, from which a rational jury
could find guilt beyond a reasonable doubt.” Id. Needless to say, “[i]nsufficiency of the
evidence arguments are hard to win.” Id. We have described the burden for defendants
as a “nearly insurmountable hurdle.” United States v. Moore, 425 F.3d 1061, 1072 (7th Cir.
2005) (quoting United States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000)).
It is plain that Carr cannot clear that hurdle. As described above, the government
presented ample evidence of his guilt, including the testimony of co-conspirators,
No. 16-1326 Page 4
recorded phone conversations, and records of controlled heroin buys. The jury was
entitled to believe this evidence, and we cannot disturb that decision on appeal. See
United States v. Beverly, 913 F.2d 337, 358 (7th Cir. 1990) (a conviction may rest solely on
circumstantial evidence, “even when the evidence at trial is ‘totally uncorroborated and
comes from an admitted liar, convicted felon, large scale drug-dealing, paid
government informant’” (quoting United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.
1989)). Simply put, there was more than enough evidence presented from which a
rational jury could have found Carr guilty of the conspiracy offense. Therefore, we
reject his sufficiency challenge.
B. Impeachment of Co-Conspirator Witness
Carr argues that the district court erred by not permitting him to impeach his co-
conspirator Mokece Lee using Lee’s 1997 conviction for attempted murder. However,
under Federal Rule of Evidence 609(b)(1), a witness’s prior conviction for which he has
been released more than ten years ago is not admissible unless “its probative value,
supported by specific facts and circumstances, substantially outweighs its prejudicial
effect.” And we have cautioned that “impeachment by a conviction falling outside the
rule’s ten-year time limit should be permitted only in rare and exceptional
circumstances.” United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008). Lee was
released from prison in 2002, so the conviction is quite stale. Nor is a conviction for
attempted murder particularly relevant to a witness’s penchant for honesty. See Barber
v. City of Chicago, 725 F.3d 702, 714–15 (7th Cir. 2013) (“A felony conviction for
possession of stolen property ... is not a crime of dishonesty per se, but it is more
probative of dishonesty than other crimes, like murder or assault.” (citations omitted)).
Carr points to no exceptional circumstances that would merit departing from the usual
rule in this case. Therefore, we hold that the district court did not abuse its discretion by
refusing to admit Lee’s attempted murder conviction.
C. Validity of the Information
Carr next argues that the district court erred by permitting the government to
rely on the Information even though it had been removed from the docket. We disagree.
The government satisfied the three requirements of 21 U.S.C. § 851(a) by filing the
Information, serving it upon defense counsel, and identifying the particular conviction
on which it sought to rely. Moreover, Carr was not prejudiced by the clerical error
(which happened through no fault of the government). Both Carr and his counsel knew
about the Information, having referred to it during pretrial plea negotiations and
referenced it in a motion to continue the trial date. Indeed, nobody realized that the
No. 16-1326 Page 5
initial clerical error had not been fixed until the government came across the entry
when preparing for sentencing. In these circumstances, we will not disturb the district
court’s decision to permit the government to rely on the Information. Because Carr does
not contest the use of the underlying conviction, we conclude that the court properly
applied the mandatory minimum in this case.
D. Factual Findings at Sentencing
Lastly, Carr disputes the district court’s factual findings at the sentencing
hearing, which led to Guidelines enhancements for the quantity of heroin and for his
leadership of the conspiracy. We decline to address this argument because any error
committed would necessarily be harmless. Even had Carr not received the contested
enhancements, he would have received the same mandatory minimum sentence. That is
the quintessential example of harmless error. See United States v. Woods, 233 F.3d 482,
485–86 n.5 (7th Cir. 2000). Therefore, we affirm Carr’s sentence on the ground that the
mandatory minimum was properly applied.
III. Conclusion
The evidence presented in this case was plainly sufficient to sustain Carr’s
conviction for conspiracy to distribute heroin, and his prior narcotics offense qualifies
him for a twenty-year mandatory minimum sentence. He cannot avoid that sentence
because of the clerk’s office’s error. Therefore, we AFFIRM the judgment below.