United States v. Vaughn, Robert D. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4033
United States of America,
Plaintiff-Appellee,
v.
Robert D. Vaughn,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CR-30068--Jeanne E. Scott, Judge.
Submitted May 8, 2001/*--Decided October 1, 2001
Before Bauer, Posner, and Coffey, Circuit
Judges.
Coffey, Circuit Judge. On August 6,
1999, Robert Vaughn was charged in a
three-count indictment with conspiracy to
distribute cocaine base, 21 U.S.C. sec.
846, retaliating against an informant, 18
U.S.C. sec. 1513(b)(2), and possessing a
firearm in furtherance of a crime of
violence or drug trafficking offense, 18
U.S.C. sec. 924(c). During Vaughn’s
trial, Illinois State Police Sergeant
Agnes Johnson testified regarding
controlled drug purchases she made from
Vaughn in 1994, which were unrelated to
the charged offenses. The trial court
admitted Johnson’s testimony over
Vaughn’s objection under Fed. R. Evid.
404(b), ruling that Johnson’s testimony
was relevant to establish Vaughn’s
intent, modus operandi, and motive.
Vaughn appeals, arguing that Johnson’s
testimony should not have been admitted
because its probative value was
substantially outweighed by the danger of
unfair prejudice. We affirm.
I. Factual Background
Vaughn began selling crack cocaine in
late 1993 to early 1994, while living at
Eleanor Gaines’s residence in
Springfield, Illinois. Gaines’s grandson,
Dwight Morgan, also lived at the house at
that time and supplied Vaughn with the
crack that he sold. In addition Vaughn’s
girlfriend, Katherine Kantner, also lived
in Gaines’s house.
In July 1994, Sergeant Johnson, was
working undercover with the Illinois
State Police’s Central Enforcement Group
in Springfield investigating drug
trafficking. During her assignment,
Johnson was introduced to Donald Pasquale
by Carol Dougherty, who was assisting the
police as an informant. When Johnson and
Dougherty sought to purchase crack
cocaine from Pasquale, he called his
supplier, Vaughn. Vaughn brought the
crack to Pasquale and told Johnson that
she could buy from him directly in the
future and in furtherance of this
procedure he supplied Johnson with his
pager number.
Sergeant Johnson then made three
controlled buys from Vaughn in August
1994. To initiate each purchase, either
she or Carol Dougherty paged Vaughn. When
Vaughn called them shortly thereafter,
they ordered a quantity of crack, using
coded language to refer to the drugs and
the quantity desired. After receiving the
order, Vaughn gave Johnson and Dougherty
instructions to meet him at a Springfield
grocery store parking lot. On each
occasion, Vaughn drove to meet Johnson
and Dougherty at a transaction location
of his choice. During one of the
purchases, Vaughn made it clear that he
would not make the sale in the presence
of more than one person, telling Johnson
that "[i]t takes two to get indicted." On
that occasion, Vaughn directed Dougherty
to ride briefly as a passenger in his car
before he would make the crack sale.
Vaughn was indicted for his August 1994
drug transactions with Sergeant Johnson
and Carol Dougherty, and pleaded guilty
to the resulting three-count indictment
in July 1996.
In spite of the 1994 indictment, Vaughn
continued to sell drugs in the time
period between the August 1994 sales to
Sergeant Johnson and his July 1996 guilty
plea resulting from those sales, and the
charged offenses result from his conduct
during that period. Vaughn’s nefarious
enterprise was successful. By late 1995,
Vaughn had stashed $100,000 in proceeds
from his drug business at a house where
his mother lived. However, shortly after
Vaughn’s transactions with Sergeant
Johnson, he was forced to enlist the aid
of his girlfriend Kantner as a result of
the suspension of his driving
privileges./1 Unable to deliver the
drugs to his customers, Vaughn had
Kantner make deliveries for him.
On November 7, 1995, Kantner was
arrested for delivering crack to Kim
Ingold, one of Vaughn’s customers who at
the time was acting as an informant for
the Springfield police. Vaughn became
angry that Kantner had been set up by
Ingold because Kantner could no longer
make deliveries for him and he attempted
to hire Needham Davis and Peddie Taylor
to bomb Ingold’s residence. When Davis
and Taylor refused to carry out his
directive to bomb Ingold’s house, Vaughn
stated that he would take care of it
himself. Kantner drove Vaughn to Ingold’s
residence, and at Vaughn’s direction she
placed an explosive device inside
Ingold’s front screen door. The
detonation of the bomb caused extensive
damage to her residence.
The Springfield police suspected Vaughn
as being responsible for the bombing and
questioned him shortly after the
incident. Vaughn denied any involvement
in the bombing, as did Kantner who was
interrogated by the police at the same
time. Despite Vaughn’s and Kantner’s
denials regarding their involvement in
the bombing, the police continued to
suspect that they were responsible for
the bombing of Ingold’s house.
Ultimately in July 1999 (while faced
with other criminal charges), Kantner
admitted her involvement in Vaughn’s drug
enterprise as well as in the bombing
incident. Based upon Kantner’s
confession, Vaughn was indicted and
charged with conspiring with Kantner to
distribute crack cocaine, retaliating
against an informant, and possessing an
explosive device in relation to a drug
trafficking crime.
At a pretrial hearing on April 28, 2000,
the government filed a notice with the
court of its intent to use evidence
related to Vaughn’s 1994 drug sales to
Sergeant Johnson. Vaughn objected to the
use of evidence of his prior
transactions, and the government filed a
response to his objections. At an
evidentiary hearing on May 4, 2000, the
trial judge reserved her ruling on the
government’s notice, instructing the
parties that she would rule on the
admissibility of the evidence at the
trial.
During the trial, the government called
Kantner to testify as to the scope and
nature of the conspiracy with Vaughn to
sell crack cocaine. Kantner testified
that she did not become aware of Vaughn’s
drug-dealing operation until after she
had been living with Vaughn for some
time. Kantner identified Morgan as
Vaughn’s source for the drugs that he
sold and further described Vaughn’s
business practices. According to Kantner,
when a customer was interested in making
a drug purchase, the customer would page
Vaughn who would then contact the
customer and designate a location to
complete the sale. In particular, Kantner
noted that Vaughn was careful to avoid
any transactions that he felt might be
suspicious and/or where he felt that the
customer might be cooperating with law
enforcement authorities. Kantner further
explained that Vaughn believed that he
could not be indicted on the word of one
witness on a one-on-one basis and so was
careful not to complete a delivery unless
the customer was alone.
Finally, Kantner testified that she
became involved in Vaughn’s drug-dealing
scheme after Vaughn lost his driving
privileges. Kantner stated that Vaughn
supplied her with the names of his
customers and a pager in order that his
customers could contact her, as well as
the drugs that she was to deliver.
Kantner also claims that Vaughn
instructed her regarding his procedures
for completing the sales, particularly
directing her to conduct sales only when
she was alone with the customer. Kantner
testified that after completing
deliveries she would turn the proceeds
over to Vaughn who would count the money
on a nightly basis to ensure his profit
in the illicit drug enterprise. Finally,
Kantner testified that, when Vaughn’s
drug-dealing business hit a low point on
November 7, 1995 after Kantner’s arrest
for selling drugs to Ingold, Vaughn
instructed her to bomb Ingold’s
residence.
Vaughn’s counsel vigorously challenged
Kantner’s credibility on cross-
examination, suggesting that Kantner
acted alone both in selling drugs and in
bombing Ingold’s residence. In support
Vaughn pointed to the fact that Kantner
had not told the police of Vaughn’s
involvement in the drug sales when she
was arrested in 1995 for selling drugs to
Ingold. Vaughn’s counsel also pointed out
that Kantner did not implicate Vaughn in
the bombing of Ingold’s residence when
she was questioned shortly after the
bombing occurred. Finally, Vaughn’s
counsel pointed to the fact that Kantner
continued to sell drugs from 1996 to 1998
while Vaughn was incarcerated. Vaughn
argued that these facts demonstrated that
Kantner acted alone and without his
knowledge in both the drug sales and the
bombing.
After Vaughn’s counsel cross-examined
Kantner, the government sought to
buttress her credibility with
thetestimony of Sergeant Johnson who
would testify about Vaughn’s 1994 drug
sales. The government argued that
Johnson’s testimony was relevant to
demonstrate 1) Vaughn’s intent to engage
in the conspiracy to distribute drugs
with Kantner; 2) Vaughn’s method of
operation; and 3) Vaughn’s motive for
entering the conspiracy with Kantner. The
trial court ruled that the government’s
proffered purposes were permissible under
Rule 404(b) and further ruled that the
prejudicial effect of the prior crack
sales did not outweigh its probative
value, especially in light of the fact
that the jury already had knowledge that
Vaughn was in federal custody on another
offense./2 Accordingly, the trial court
allowed Johnson to testify.
Before Johnson testified, the court gave
the jury a limiting instruction regarding
Johnson’s upcoming testimony. The court
instructed the jury that they could:
consider [Johnson’s testimony] only on
the question of the defendant’s motive,
his intent, his preparation, his plan,
his knowledge, his absence of mistake . .
. and his background or relationship
between himself and certain other
witnesses. That evidence is to be
considered only for [those] limited
purposes in accordance with the
instruction I’ve just given you.
Thereafter Johnson testified regarding
her undercover assignment with the
Illinois State Police, during which time
she made three controlled purchases of
crack cocaine from Vaughn in 1994.
Johnson also delineated Vaughn’s method
of operation, including the manner in
which she contacted Vaughn and the manner
in which he arranged the transactions.
Johnson also identified Vaughn’s
customers that were known to her.
Finally, Johnson testified about Vaughn’s
refusal to conduct transactions in the
presence of anyone other than the
customer. At the conclusion of the trial,
the trial judge repeated the limiting
instruction he gave earlier concerning
Johnson’s testimony before the jury. The
jury found Vaughn guilty on all counts
and sentenced him to a term of
imprisonment of 720 months.
II. Issues
Vaughn raises only one issue on appeal:
whether the trial judge abused her
discretion when she admitted, pursuant to
Fed. R. Evid. 404(b), Sergeant Johnson’s
testimony regarding Vaughn’s 1994 drug
sales.
III. Discussion
We review a trial court’s decision to
admit evidence under Fed. R. Evid. 404(b)
for abuse of discretion. United States v.
Denberg, 212 F.3d 987, 992 (7th Cir.
2000); United States v. Moore, 115 F.3d
1348, 1354 (7th Cir. 1997). "’The
district court’s determination of the
admissibility of evidence is treated with
great deference because of the trial
judge’s first-hand exposure to the
witnesses and the evidence as a whole,
and because of [her] familiarity with the
case and ability to gauge the likely
impact of the evidence in the context of
the entire proceeding.’" Denberg, 212 at
987 (internal quotations omitted)
(quoting United States v. Curry, 79 F.3d
1489, 1495 (7th Cir. 1996)). To determine
whether evidence is properly admitted
under Rule 404(b) we use the familiar 4-
prong test. Under this test, we must
determine whether:
(1) the evidence is directed toward
establishing a matter in issue other than
the defendant’s propensity to commit the
crime charged, (2) the evidence shows
that the other act is similar enough and
close enough in time to be relevant to
the matter in issue, (3) the evidence is
sufficient to support a jury finding that
the defendant committed the similar act,
and (4) the evidence has probative value
that is not substantially outweighed by
the danger of unfair prejudice.
United States v. Gibson, 170 F.3d 673,
678 (7th Cir. 1999).
On appeal, Vaughn challenges only the
application of the fourth prong, arguing
that the admitted evidence had little
probative value and that the danger of
unfair prejudice was substantial. Vaughn
argues that Sergeant Johnson’s testimony
had little or no probative value because
Johnson never testified to any
relationship between Vaughn and Kantner.
Instead, Vaughn contends that "the
powerful evidence by Sergeant Johnson
became the focal point of the trial . .
. and acted to convey to the jury that
[he] was a bad person and [that] because
he had engaged in prior drug transactions
and had admitted guilt to same, he must
be equally culpable for the crimes in the
instant offense." We disagree.
Vaughn’s contention that Sergeant
Johnson’s testimony had little or no
probative value because she never
testified to any relationship between
Vaughn and Kantner is misguided at best.
The government specified not just one,
but three, permissible purposes for the
presentation of Sergeant Johnson’s
testimony, none of which depended upon
Johnson testifying to a relationship
between Vaughn and Kantner. Our review of
the record satisfies us that the
Johnson’s testimony was highly probative.
First, the government suggested that
Sergeant Johnson’s testimony was relevant
to demonstrate Vaughn’s intent to
distribute crack cocaine. Vaughn offers
only a weak and unconvincing attempt
(unsupported by any citation to Seventh
Circuit case law) to downplay this
purpose, claiming that "the mere fact
that a defendant engages in a drug
transaction in the past . . . does not in
all cases show his intent to distribute
crack cocaine at all future dates."
Vaughn was charged with a specific intent
crime (conspiracy to distribute crack
cocaine). See United States v. Irorere,
228 F.3d 816, 823 (7th Cir. 2000). We
have repeatedly held that it is proper to
use other acts evidence to establish
intent where the defendant is charged
with a specific intent crime. Den-berg,
212 F.3d at 993; United States v. Lewis,
110 F.3d 417, 420 (7th Cir. 1997); United
States v. Long, 86 F.3d 81, 84 (7th Cir.
1996); United States v. Harvey, 959 F.2d
1371, 1374 (7th Cir. 1992); United States
v. Chiamson, 760 F.2d 798, 808 (7th Cir.
1985). Further, we have held in the past
that proof of uncharged acts of drug
trafficking are relevant and probative of
whether a defendant had the intent
todistribute drugs in his possession. See
United States v. Allison, 120 F.3d 71, 75
(7th Cir. 1997); United States v.
Hernandez, 84 F.3d 931, 935 (7th Cir.
1996). Consequently the evidence of
Vaughn’s 1994 drug transactions was
highly probative of his intent to enter
into a conspiracy to distribute drugs
with his girlfriend, Katherine Kantner,
and Vaughn’s argument to the contrary is
without merit.
The government also suggested that
Johnson’s testimony was probative of his
method of operation. Modus operandi
evidence must bear "a singular strong
resemblance to the pattern of the offense
charged and that the similarities between
crimes be sufficiently idiosyncratic to
permit an inference of pattern for
purposes of proof." Moore, 115 F.3d at
1354-55 (internal citations and
quotations omitted). We have previously
approved of the admission of testimony
under Rule 404(b) to establish a drug
dealer’s method of operation. See United
States v. Williams, 216 F.3d 611, 613-15
(7th Cir. 2000). In this case, Sergeant
Johnson corroborated Vaughn’s modus
operandi as testified to by Kantner,
which was challenged during counsel’s
cross-examination of Kantner. Sergeant
Johnson’s testimony confirmed several
distinct characteristics of Vaughn’s
method of operation: (1) Vaughn’s method
of arranging a drug transaction; (2)
Vaughn’s desire to avoid suspicious
transactions; (3) Vaughn’s customers; and
(4) Vaughn’s preferred location for
completing the drug transactions.
Vaughn claims that the evidence of his
1994 drug transactions cannot serve as
modus operandi evidence because in 1994
he did not use Kantner as a delivery
person, as he was alleged to have done in
the charged offenses. However, in
determining whether evidence is
admissible as modus operandi, we focus
"not on the dissimilarities between the
charged offense and the other acts
evidence, but on their common
characteristics." Id. at 1355. After
reviewing the record we are convinced
that the numerous commonalities in this
case between Vaughn’s 1994 drug sales and
his acts in the charged offense are
sufficiently similar to convince us that
Sergeant Johnson’s testimony was
probative of Vaughn’s method of
operation.
Finally, the government also suggested
to the trial court that Sergeant
Johnson’s testimony would establish, in
part, the motive for Vaughn to conspire
with Kantner to distribute drugs. Vaughn
argues that because Johnson never did
mention Kantner in her testimony, that
her testimony could not establish
Vaughn’s conspiracy with her. Vaughn’s
argument, however, mischaracterizes the
purpose for which the government used
Johnson’s testimony. The government did
not use Johnson’s testimony to establish
that Vaughn did in fact join in a
conspiracy with Kantner, but instead used
Johnson’s testimony to establish the
motive for Vaughn to enter that
conspiracy. Among other things, Johnson
testified that Vaughn drove to meet his
customers. Johnson further testified that
Vaughn’s driving privileges were
suspended in October 1994. When coupled
with Kantner’s earlier testimony that
Vaughn had enlisted her to help his drug-
selling scheme shortly after his driving
privileges were suspended, Johnson’s
testimony was relevant: (1) to establish
his need to enlist Kantner in his drug-
selling scheme to deliver the drugs for
him; and (2) to rebut Vaughn’s suggestion
that Kantner had been acting alone when
she was delivering drugs. We agree with
the trial court that Johnson’s testimony
was probative of Vaughn’s intent to enter
into the conspiracy with Kantner, his
method of operation, and his motive to
enter the conspiracy, all of which are
permissible purposes under Rule 404(b).
Vaughn also argues unconvincingly that
the danger of unfair prejudice warranted
the exclusion of Sergeant Johnson’s
testimony despite its probative value.
Vaughn claims and speculates that
Johnson’s testimony regarding his 1994
drug sales would cause the jury to
presume, regardless of the sufficiency of
the government’s case, that Vaughn had
committed the charged offense. But Vaughn
ignores the fact that the prejudicial
impact of Johnson’s testimony had already
been lessened because the jury knew that
he was incarcerated for having committed
a federal offense.
Moreover, the trial judge gave the jury
limiting instructions (not once, but
twice) instructing them that they should
consider Sergeant Johnson’s testimony
only as it related to Vaughn’s motive,
intent, and method of operation. We have
held many times that limiting
instructions are effective and proper in
reducing or eliminating any possible
unfair prejudice from the introduction of
Rule 404(b) evidence. Denberg, 212 F.3d
at 994; United States v. Brooks, 125 F.3d
484, 500 (7th Cir. 1997); Moore, 115 F.3d
at 1355. Vaughn offered no evidence
suggesting that the trial judge’s
instructions were insufficient or that
the jury failed to follow them, and we
assume that the jury obeyed the
instructions of the court.
IV. Conclusion
We agree with the district court that
Sergeant Johnson’s testimony served three
permissible purposes in that it was
probative of: (1) Vaughn’s intent to
engage in the conspiracy to distribute
drugs; (2) Vaughn’s method of operation;
and (3) Vaughn’s motive to enter the
conspiracy with Kantner. We further hold
that the alleged danger of any
conceivable unfair prejudice flowing from
Sergeant Johnson’s testimony was slight,
and, if any existed, it was cured by the
trial judge’s limiting instructions.
Moreover, even if any prejudice flowing
from Johnson’s testimony remained uncured
by the limiting instruction, it did not
outweigh the substantial probative value
of the testimony. Consequently, the trial
judge did not abuse her discretion in
admitting Johnson’s testimony. AFFIRMED.
FOOTNOTES
/* After examining the briefs and the record, we
have concluded that oral argument is unnecessary.
Accordingly, the appeal is submitted on the
briefs and the record. Fed. R. App. P. 34(a)(2).
/1 Vaughn’s driving privileges were suspended be-
cause of conduct not related to his drug traf-
ficking.
/2 Vaughn’s counsel brought out this fact on voir
dire for strategic reasons.