United States v. Williams, Alfred L. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2722 and 99-2765
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFRED LEONARD WILLIAMS and
DERRICK MITCHELL a/k/a DIRKIE,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 97 CR 30089 - William D. Stiehl, Judge.
ARGUED OCTOBER 31, 2000--DECIDED November 16, 2001
Before BAUER, KANNE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Alfred Williams
was convicted of conspiracy to possess
with intent to distribute cocaine and
cocaine base, in violation of the 21
U.S.C. sec. 841(a)(1). Derrick Mitchell
was acquitted of participating in that
same conspiracy, but was convicted of
four counts of distributing cocaine base
in violation of 21 U.S.C. sec. 841(a)(1).
Williams and Mitchell appeal, claiming a
number of errors in their joint jury
trial. We affirm.
I.
Williams, Mitchell, Michael Andre
Hoffman and James Brown were all charged
with conspiracy to possess with intent to
distribute cocaine and cocaine base.
Mitchell was also charged with five
counts of distributing cocaine base,
although one of these counts was later
dismissed. Several other persons were
named as previously indicted co-
conspirators, including Willie Thomas,
Corea Thomas, Lester Smith, Jr., John
Rayford Stevenson, Terrell Burch, Robert
Hamm, Jerome White, Courtney Hoffman,
Anthony Scruggs, James Hoffman, Erskin
Scruggs, Everett Sakosko II and James
Gurges. Brown pled guilty, and the
remaining defendants went to trial before
a jury. Mitchell and Hoffman were
acquitted of the conspiracy charge,
Williams was found guilty of conspiracy,
and Mitchell was found guilty of the
remaining four counts of distribution.
Williams was sentenced to life
imprisonment, ten years of supervised
release, a $2000 fine and a $100 special
assessment. Mitchell was sentenced to 360
months of imprisonment, three years of
supervised release, a $1500 fine and a
$200 special assessment.
The government established at trial that
Williams, a resident of El Paso, Texas,
regularly supplied cocaine and marijuana
to Courtney Hoffman in the East St.
Louis, Illinois metropolitan area.
Sometime around 1990, Courtney Hoffman
was introduced to Williams in El Paso by
Courtney’s half brother, Michael Andre
Hoffman. Michael Andre was a childhood
friend of Williams. Williams supplied
drugs to Courtney from the time they met
until approximately January 1998.
Initially, Williams used his own couriers
to deliver drugs to Courtney in East St.
Louis. However, in February 1992,
Williams was arrested by agents of the
Drug Enforcement Administration after he
accepted delivery of a kilogram of
cocaine in Belleville, Illinois. He was
consequently charged with possession with
intent to distrib-ute, and entered a
written plea agreement with the
government. This agreement was never
filed with the court, and Williams never
pled guilty because the case was
dismissed when he agreed to cooperate
with authorities in Illinois and Texas.
Following his troubles with law
enforcement, Williams continued to supply
cocaine and marijuana to Courtney Hoffman
but Hoffman had to provide his own
couriers. Courtney recruited a number of
couriers, including his father, James
Hoffman, Freddie Barnes, and Anthony and
Erskin Scruggs. James Hoffman usually
determined which couriers would make a
particular trip. The couriers traveled to
El Paso by plane, train, bus, or by
driving their own cars. They usually
stayed at Michael Andre’s house upon
arrival. They often carried large amounts
of cash, strapped to their bodies, to pay
Williams for drugs. After obtaining
cocaine from Williams, they carried it
back to Illinois either by securing it to
their bodies or by secreting it in the
liners of plastic coolers. Over the
years, law enforcement seized both cash
and drugs from the various couriers as
they traveled between El Paso and East
St. Louis.
Courtney Hoffman distributed the drugs
he received from El Paso to various
customers in the East St. Louis area.
Willie Thomas was one his main
distributors. Thomas obtained cocaine in
powder form from Hoffman and then
converted it to crack before selling it.
On approximately six occasions, Thomas
received three kilograms of cocaine from
Hoffman, and Thomas estimated his total
take from Hoffman to be in the
neighborhood of 20-25 kilograms. Thomas
led a group of family members and close
associates that became known as the "Wolf
Pack." The Wolf Pack distributed cocaine
they obtained from Thomas. Thomas had
other distributors as well, including one
of the defendants here, Derrick Mitchell.
Thomas supplied crack cocaine to Mitchell
beginning in 1991 or 1992, then ceased
for a period of time when he suspected
Mitchell was working for the police, and
then resumed the distributor relationship
by supply-ing powder cocaine to Mitchell
from 1995 through 1997. On three
occasions in 1993 and one occasion in
1995, law enforcement officers, using
informants, made controlled purchases of
crack from Mitchell in the course of
investigating the Wolf Pack. These four
purchases formed the basis for the four
counts of distributing brought against
Mitchell. The jury convicted Mitchell on
all four counts of distribu-tion but
acquitted him of participating in the
conspiracy. The jury convicted Williams
on the conspiracy count, and acquitted
Michael Andre Hoffman. Mitchell and
Williams appeal.
II.
Derrick Mitchell objects to his sentence
on five different grounds. First, he
contends the district court erred in
including as relevant conduct certain
drug sales that did not bear the
necessary relationship to his offense of
conviction. Second, he maintains that the
district court erred in increasing his
base offense level by two levels for
possession of a firearm. Third, he argues
that the court erred in increasing his
criminal history category two levels for
committing the offense of conviction
while under a sentence of probation.
Fourth, he asserts that the court erred
in increasing his criminal history
category an additional level for
committing the offense of conviction less
than two years after being released from
custody exceeding 60 days. Finally, he
complains that the court erred by denying
him a three-level reduction for
acceptance of responsibility when the
court refused to accept his attempt to
plead guilty.
A.
Mitchell contends that the district
court erred in relying on the Presentence
Investigation Report ("PSR") in
determining the drug amount to be
included as relevant conduct in
calculating his sentence. Mitchell
objects to the unsubstantiated proffer
statements upon which the PSR relied in
assessing relevant conduct. He also
claims the court did not state and
support its findings that the uncharged
conduct bore the necessary relationship
to the offense of conviction. We review
the district court’s fact findings on the
relevant conduct assessment for clear
error. United States v. Cedeno-Rojas, 999
F.2d 1175, 1179 (7th Cir. 1993). We
typically require that a district court
explicitly state and support, either at
the sentencing hearing or preferably in a
written statement of reasons, its finding
that the unconvicted activities bore the
necessary relation to the offense of
conviction. United States v. Patel, 131
F.3d 1195, 1203 (7th Cir. 1997). However,
we have been willing to affirm where the
record reveals that the district court
relied upon the PSR and carefully
considered the government’s theory on the
relationship between the offense of
conviction and the additional conduct.
Patel, 131 F.3d at 1204 (collecting
cases). "[W]here it is clear that the
district judge believed the required
relationship to be present and the
judge’s implicit finding is supported by
the record, we have been reluctant to
remand simply because the judge failed to
invoke the ’magic words’ of section
1B1.3(a)(2)." Id.Our review of the sentencing transcript
shows that the district judge very
carefully considered both the factual and
the legal basis for his findings on
relevant conduct. At the hearing,
Mitchell objected that the uncharged
conduct was not related in time, place or
persons involved to the offense of
conviction. He conceded that the
uncharged conduct involved the same drug
as the charged offense. He points out
that for the charged conduct, he
conducted three sales in 1993 and one in
1995. The uncharged conduct occurred over
a number of years, from the early 1990’s
through late 1997. The court accepted the
government’s portrayal of the evidence in
support of the relevant conduct with one
exception. The court found the testimony
and proffer of Demiko Smith that Mitchell
provided him with cocaine during the
summer of 1996 through December 1996 not
credible because Mitchell was
incarcerated during at least a portion of
that time. The court found that certain
testimony by Smith was credible, but
declined to include the vast majority of
the cocaine that Smith attributed to
Mitchell. As to the other amounts
detailed in the PSR, the court found they
were sufficiently related to the offense
of conviction. These amounts were
provided to Mitchell by Willie Thomas and
James Brown, among others. Moreover, a
confidential source informed law
enforcement about two relatively small
purchases from Mitchell. All in all, the
court added up more than two kilograms of
cocaine as relevant conduct. Our review
of the PSR reveals that it contains an
adequate factual basis for that finding.
The record reveals that Mitchell was
continuously involved in cocaine sales
throughout the 1990’s (except for a
period of time when he was incarcerated),
and that the sales mainly took place in
the East St. Louis, Illinois area.
Mitchell received the cocaine he sold
from members of the conspiracy and
persons associated with those charged
with the conspiracy. The court explicitly
stated how it was calculating the amount,
which testimony it was accepting, which
it was rejecting and why. Although the
court did not expressly state that the
events were related in time, place and
persons involved, its discussion of the
evidence demonstrates that these factors
were well satisfied. Thus, the district
court did not clearly err in finding that
these additional amounts were
attributable to Mitchell as relevant
conduct.
B.
Mitchell next argues that the court
erred in increasing his base offense
level by two levels for possession of a
firearm because there was no evidence
that he possessed a firearm during any of
the offenses of conviction. He cites
United States v. Montgomery, 14 F.3d 1189(7th Cir. 1994), cert. denied, 522 U.S.
1136 (1998), for the proposition that the
firearm must be possessed during the
offense of conviction in order to
increase the sentence under Sentencing
Guideline 2D1.1(b)(1). There was no such
evidence here, according to Mitchell, and
a finding that the firearm was possessed
during relevant conduct is inadequate to
apply the enhancement. Mitchell’s
reliance on Montgomery is inexplicable
because even a quick review of that case
reveals that the court was applying an
older version of the gun enhancement
guideline that has since been replaced.
14 F.3d at 1198-99 n. 9. The court there
explained that at the time of
Montgomery’s offense, section 2D1.1
provided for a two-level enhancement if a
dangerous weapon was possessed during the
commission of the offense. By the time
Montgomery was sentenced, the provision
had been amended to require only that the
weapon be possessed. The district court
applied the older version, the government
did not object, and on appeal, we
therefore analyzed the sentence under the
older guideline. We also noted, however,
that under the amended version of 2D1.1,
the government need no longer prove that
the defendant possessed the weapon during
the offense of conviction. 14 F.3d at1199 n. 10. Rather, the government need
only show that the weapon was possessed
during any relevant conduct. United
States v. Adams, 125 F.3d 586, 596-97
(7th Cir. 1997). As the district court
found here, the government readily met
that burden by presenting credible
witnesses at trial who saw Mitchell in
possession of a gun while selling drugs
on a number of occasions. In light of
that finding, the district committed no
error in enhancing Mitchell’s sentence
two levels for possessing a dangerous
weapon.
C.
Mitchell next objects to two criminal
history points the court assigned him for
committing an offense while under a
sentence of probation for another crime.
Mitchell points put that the offense of
conviction was completed by February 6,
1995, the date of the fourth sale for
which he was convicted. He was not placed
on probation until August 4, 1995, some
six months later, and he argues that the
extra points were therefore inapplicable.
He concedes that under Sentencing
Guideline 4A1.1(d), this addition to the
criminal history subtotal should be
applied if any relevant conduct takes
place while under a criminal sentence.
See U.S.S.G. sec. 4A1.1, Application Note
4. He also conceded at oral argument that
if the district court’s relevant conduct
assessment was correct, then this
addition was appropriate, because he
engaged in some of the relevant conduct
while on probation for another crime.
Because we affirmed the district court’s
relevant conduct assessment, we must
affirm the court’s addition of two
criminal history points pursuant to
section 4A1.1(d).
Mitchell’s final sentencing issue also
rises or falls with the relevant conduct
finding. He complains that the district
court added one criminal history point
for committing the offense less than two
years after having been released from
custody exceeding 60 days. See U.S.S.G.
sec. 4A1.1(e). He was released from
custody in December 1996, and the date of
the final offense of conviction was
February 6, 1995. Because Mitchell’s
relevant conduct included certain acts in
1997, the district court did not clearly
err by adding one criminal history point
pursuant to section 4A1.1(e).
III.
We turn now to Alfred Williams’ appeal.
Williams challenges both his conviction
and his sentence on a number of grounds.
He first maintains that the indictment
should have been dismissed because it
violated the terms of his 1992 plea
agreement. He contends the court erred
when it allowed the government to
question him at trial about the details
of his 1992 proffer. He argues that
numerous evidentiary errors and improper
prosecutorial misconduct deprived him of
a fair trial. He contends that the
government was improperly allowed to
strike all African-American venirepersons
from the jury pool, depriving him of his
right to trial by an impartial jury. He
complains that the government’s proof at
trial established the existence of
multiple conspiracies and amounted to a
prejudicial variance of the indictment.
He maintains his trial counsel was
ineffective, and that he was entitled to
a new trial on the basis of multiple
errors. Williams challenges his sentence
on two grounds. First, he claims that he
should not have received a two-level
enhancement for obstruction of justice
for lying at trial. Second, he maintains
that the court erred in using two prior
marijuana convictions as predicates for
imposing a life sentence when the conduct
comprising those convictions was relevant
conduct to the offense of conviction. We
will address his challenges to his
conviction first, and then address the
sentencing issues. Williams withdrew his
claim of ineffective assistance of
counsel at oral argument, explaining that
he merely wished to preserve this issue,
and feared waiving the claim to the
extent his attorney’s ineffectiveness was
apparent from the record. We believe
these claims are best brought in a
collateral proceeding where the record
can be fully developed, and not on direct
appeal when most of the pertinent
information is not yet in the record.
United States v. Taglia, 922 F.2d 413,
419 (7th Cir. 1991). We will therefore
treat the claim of ineffective assistance
as withdrawn.
A.
Williams argues first that the
indictment should have been dismissed
because it violates the terms of his 1992
plea agreement. Williams concedes that he
did not raise this problem before the
district court, and that we therefore
review the issue for plain error. Fed. R.
Crim. Pro. 52(b). As we discussed, in
1992, Williams was arrested after accept
ing delivery of a kilogram of cocaine in
Belleville, Illinois. He entered into a
plea agreement which, by its terms,
contemplated that he would enter a guilty
plea relating to the charges arising from
that arrest. Williams agreed to cooperate
with the government in its investigations
and prosecutions in southern Illinois and
elsewhere. In exchange, the government
agreed not to prosecute Williams for any
crimes of which it became aware by virtue
of his cooperation. Subsequently,
Williams agreed to cooperate with law
enforcement in Texas and Illinois, and
the charges were dismissed. Thus,
Williams never pled guilty as
contemplated by the agreement. Williams
now maintains that he did all he was
required to do under the plea agreement,
and that the government breached its duty
by prosecuting him in this case. The
government contends that Williams waived
this argument by failing to raise it in
the district court.
The government mistakes waiver for
forfeiture, and does so for every issue
that Williams raises for the first time
on appeal. This is a common error, and so
we will repeat the rule. Waiver is the
intentional relinquishment or abandonment
of a known right. United States v. Olano,
507 U.S. 725, 733 (1993). It differs from
forfeiture, which is simply the failure
to make a timely assertion of a right.
Id. "Waiv-er extinguishes the error and
precludes appellate review." United
States v. Staples, 202 F.3d 992, 995 (7th
Cir. 2000). Forfeiture permits plain
error review. Id. A common distinction we
draw between waiver and forfeiture is
that waiver comes about intentionally
whereas forfeiture occurs through
neglect. Id. See also Fed. R. Crim. Pro.
52(b) ("Plain errors or defects affecting
substantial rights may be noticed
although they were not brought to the
attention of the court."). On each issue
that the government claims waiver here,
Williams in fact simply neglected to
raise the issue in the district court,
and we will therefore apply plain error
review in each instance.
The government argues that, even if
Williams did not waive the issue, the
district court did not plainly err. The
government maintains that the plea
agreement was never approved by the
court, and Williams never pled guilty as
anticipated, and thus the agreement would
not require dismissal of the superseding
indictment. See United States v.
Whitaker, 127 F.3d 595, 608-09 (7th Cir.
1997). In Whitaker, the defendant entered
into a plea agreement with the
government. At first, the defendant’s
attorney failed to present the plea to
the court because of a scheduling
conflict. The government sent two letters
to the defendant’s counsel, warning that
if the agreement was not presented to the
court by a certain date, the government
would bring the case before a grand jury.
The defendant never presented the plea
agreement to the court, and a grand jury
returned a superseding indictment. The
defendant pled guilty to that indictment
without a plea agreement, but on appeal
sought specific enforcement of the
earlier agreement. We noted that the
original plea agreement was never
presented to court and no judgment was
ever entered on the plea. We held we were
unable to entertain any arguments as to
the benefits the defendant thought he
would receive as a result of the first
negotiations because that deal never came
to fruition. 127 F.3d at 609. We further
held that the reason that agreement was
not reduced to a judgment was beyond the
scope of our review. Id. The same is true
in the instant case. Williams is not
entitled to the benefit of the plea
agreement because he never pled guilty.
The reason the agreement was not reduced
to a judgment is beyond the scope of our
review at this point. Moreover, the
agreement purported only to protect
Williams from prosecution for crimes that
became known to the government by virtue
of his cooperation, and Williams makes no
showing that the crimes of which he was
ultimately convicted became known to the
government in this fashion.
B.
Williams next complains that the
district court erred in allowing the
government to question himself and other
witnesses about the details of his 1992
proffer. He raises two objections to the
government’s use of the proffer. First,
he claims the government agreed in the
proffer not to use any statements or
information given by him in any criminal
case during the government’s case-in-
chief. Second, he contends that, under
the agreement, the government could use
the proffer on cross-examination only if
Williams’ testimony was materially
different from the proffered information.
In his reply brief, Williams abandons the
first claim, conceding that the
government did not raise these issues in
its case- in-chief. The government argues
that we should affirm the district court
outright because Williams does not cite
any authority in support of his theory,
and failed to include the proffer in the
record here or below. Williams counters
that he attached the proffer letter to a
motion in limine before the district
court. This may well be true, but the
parties did not include the motion in
limine in the record on appeal, and we
are therefore left to decide whether
Williams’ testimony differed materially
from a document we do not have before us.
The district court does refer to the
proffer document during the trial, and so
it appears the government is mistaken in
its claim that Williams did not produce
the proffer agreement and transcript to
the district court. See Tr. Vol. IX, at
48.
We believe, in these limited
circumstances, we can resolve this issue
without ordering the parties to
supplement the record. The government
does not dispute Williams’
characterization of the proffer
agreement, and thus we will assume that
the agreement allowed the government to
question Williams about the proffer only
if his testimony at trial differed in a
material way from the proffered
information. The parties also seem to
agree about the factual basis for the
district court’s decision to allow
questioning regarding the proffer. During
Williams’ direct testimony, he stated
that, when he was arrested in 1992, he
wanted to tell law enforcement "the truth
about everything." He testified on cross-
examination that he never opened the
package of cocaine he had shipped up to
Belleville, Illinois. The government then
sought to question him regarding what he
told the agents at the time of the
proffer. In particular, quoting from the
proffer at trial, the government pointed
out that Williams admitted opening the
package shortly before his arrest. Thus,
Williams’ testimony at trial did
contradict the information he supplied in
the proffer. The detective who took the
proffer had testified at trial
consistently with the proffer, stating
that Williams admitted opening the
package, and also that a sensor placed in
the package prior to the controlled
delivery indicated the package had been
opened. We may infer from this testimony,
and Williams does not dispute these
facts, that in the proffer he admitted
opening the package and at trial he
denied it. Presumably, the purpose of
this denial is to disclaim knowledge of
the contents of the package, and thus
deny that he knowingly received a
kilogram of cocaine. In the very least,
this discrepancy called his credibility
into question, and the court did not err
in determining that his testimony
differed in a material fashion from his
proffer. The government was therefore
free under the agreement to question
Williams about the particulars of the
proffer at trial. See United States v.
Griffin, 84 F.3d 912, 919 (7th Cir. 1996)
(where a proffer letter allows for
impeachment if the defendant testifies
inconsistently, the statements are
admissible for that purpose).
C.
Williams next attacks three evidentiary
rulings by the district court, addressing
each separately, and then contending that
the cumulative effect of these errors
deprived him of a fair trial. We review
the district court’s evidentiary rulings
for abuse of discretion. United States v.
Wiman, 77 F.3d 981, 985 (7th Cir. 1996).
1.
In the first instance, Williams sought
to introduce probation records from Texas
purportedly demonstrating that he was in
New Jersey cooperating with authorities
in a drug investigation on May 17, 1995.
Several witnesses had testified at trial
that on that same date, Freddie Barnes
and James Hoffman traveled to Texas with
$89,000 strapped to their bodies to buy
drugs from Williams. Williams sought to
contradict this testimony with evidence
that he was not in Texas at the time.
Williams did not obtain the Texas
probation records until after he rested
his case. He then sought to reopen his
case for the limited purpose of admitting
them into the record. He proposed to read
two parts of the document into the record
in the same manner the government had
admitted a death certificate by reading
portions of it into the record.
We have reviewed the documents submitted
and the trial transcript detailing
Williams’ intended use of the documents
and the government’s objections. The
documents consist of a log of contacts
relating to Williams, and a number of
letters purporting to allow him to travel
at certain times to certain places. The
log is not labeled except for Williams’
name, and it is not signed. Several
paragraphs of the five-page log are
blacked out. The five travel letters,
nominally issued by the probation office
in El Paso, Texas, each purport to
authorize Williams to travel to Camden,
New Jersey on five different dates. The
only one relevant to Williams’ defense
authorizes him to travel to Camden, New
Jersey on May 14, 1995 and requires him
to return no later than May 18, 1995.
Williams’ trial counsel initially argued
to the court that the records established
that Williams was in New Jersey on May
17, 1995. The government protested that
the records at most established a time
frame in which Williams may have been in
New Jersey. The government also
complained that the records consisted of
multiple levels of hearsay, and that
Williams had not produced any witness who
could authenticate them. Williams’
counsel wished to rely on the letter
authorizing Williams to travel, and a log
entry detailing a phone call from a
Detective Nuel, dated May 18, 1995,
stating that Williams was in New Jersey
working with Nuel and the state police.
The government pointed out that the May
18 entry did not state when Williams was
in New Jersey, only that he had been
there to appear in court for legal
matters pending against him. Without
objection or correction from Williams’
counsel, the government stated that the
documents did not prove that Williams was
in New Jersey on any particular date, but
rather showed at most that he had been
given permission to be there during that
time. Tr. Vol. XI at 2-5. The government
adds on appeal that the value of the
documents to Williams’ case is
questionable because the drug buyers who
testified at trial admitted that they
often, on arriving in Texas, had to wait
a day or two for Williams to appear with
the goods. Thus the fact that Williams
was not present in Texas when they
arrived with the cash was not
dispositive.
Contrary to the government’s suggestion,
we agree with the district court that the
records had some value and rele-vance to
Williams’ case. However, the district
court did not abuse its discretion by
refusing to admit the records when
Williams was unable to lay a proper
foundation for them. He produced no
witnesses to authenticate the records,
and the court was troubled that the
government would be unable to cross-
examine anyone regarding the meaning of
the various notations. Williams concedes
on appeal that the records were not
certified and thus not admissible under
Federal Rule of Evidence 902. He now
contends they could have been admitted
under Rule 807, the "residual exception."
This rule provides, in relevant part,
that a statement not covered by Rules 803
or 804 but having equivalent
circumstantial guarantees of
trustworthiness is not excluded by the
hearsay rule if the court determines that
certain conditions are met. Williams
claims all of the conditions were met
here, and that he was deprived of his
right to present a defense when the court
refused to admit the records. There are
any number of problems with this
argument, beginning with the fact that
Williams did not raise it below, and thus
has forfeited it. In any case, we will
review it for plain error. The rule
requires that "a statement may not be
admitted under this exception unless the
proponent of it makes known to the
adverse party sufficiently in advance of
the trial or hearing to provide the
adverse party with a fair opportunity to
prepare to meet it, the proponent’s
intention to offer the statement and the
particulars of it, including the name and
address of the declarant." Fed. R. Evid.
807. Of course, Williams gave the
government no notice at all, and did not
even obtain the documents until the trial
was well under way. Moreover, he has
never identified the proponent of the log
pages he submitted. The district court
did not plainly err in refusing to admit
the documents under these circumstances.
2.
Williams next objects that the court
erred in admitting hearsay statements of
testifying co-conspirators, and hearsay
statements of co-conspirators that were
not in furtherance of the conspiracy. In
particular, he complains that the court
allowed the government to read aloud a
letter and affidavit from Anthony
Scruggs, stating that Scruggs had never
seen Williams with any drugs and that he
had never heard Courtney Hoffman talk
about any drug deals with Williams.
Scruggs testified at trial that he lied
in the affidavit. Williams also objects
to the admission of hearsay testimony (1)
from Willie Thomas, stating at trial that
Courtney Hoffman told Thomas that Hoffman
got his cocaine from "his little
brother’s people" in El Paso; (2) from
Willie Thomas, testifying that Courtney
Hoffman told him the couriers sometimes
were apprehended by law enforcement while
en route to the East St. Louis area, and
that they lost the drugs or money they
were carrying on these occasions; (3)
from Freddie Barnes, testifying that
James Hoffman told him Williams was the
person supplying the drugs; (4) from
Detective Robert Thompson of the St.
Louis County Police Department, who
stated at trial that he interviewed James
Hoffman at the airport, that Hoffman
denied he was traveling with Barnes, that
the bundles of money found strapped to
his body during a consensual search were
intended as an investment in a grocery
store with his son; (5) from Detective
Thompson, who testified that Barnes
admitted at that same interview that the
cash found strapped to Barnes’ body in
another consensual search was obtained
from Hoffman and was drug money; (6) from
Sergeant Sean Moore of the Missouri State
Highway Patrol, who testified that he
stopped Hoffman and Barnes on the
highway, that he discovered two kilograms
of cocaine in the car during a consensual
search, and that Hoffman told him they
were returning from a trip to El Paso,
Texas; (7) from Corea Thomas, who stated
at trial that his brother (Willie Thomas)
told him he was obtaining cocaine from
Courtney Hoffman, and that Hoffman was
obtaining it from Texas; (8) from Corea
Thomas, who testified that his brother
told him he had supplied cocaine to
Demiko Smith; and finally (9) from Lester
Smith, Jr., who testified that Willie
Thomas complained that Courtney Hoffman
and a man named Bob each allowed some of
his money to be seized, and that Willie
Thomas told him that Hoffman got his
cocaine in Texas and Mexico. Williams
objected at trial to just one of the
statements he now argues are inadmissable
hearsay. He objected to Detective
Thompson’s testimony that Barnes admitted
the cash strapped to his body was drug
money and that they were heading to El
Paso to meet with Hoffman’s son. He
objected on the ground that Barnes was no
longer acting as a member of the
conspiracy when he made these admissions
to the police. The court overruled the
objection.
We will review for plain error the
admission of the statements to which
Williams did not object at trial. "Plain"
in this context is synonymous with clear
or obvious. At a minimum, this means the
error must be clear under current law.
Olano, 507 U.S. at 734. Moreover, the
error must affect substantial rights. In
other words, it must be prejudicial and
must have affected the outcome of the
district court proceedings. Id. We begin
with the affidavit. The government
contends the affidavit was admissible
under Federal Rule of Evidence
801(d)(1)(A). That rule excludes from the
definition of hearsay any statement made
by a declarant who testifies at trial and
is subject to cross-examination, but only
if the statement is inconsistent with the
declarant’s testimony, and was given
under oath subject to the penalty of
perjury at a trial, hearing or other
proceeding, or in a deposition. We have
held that, even when an affidavit is
taken under an oath administered by an
IRS special agent, the investigative
interview that generated the affidavit
was not shown to be a "proceeding" for
the purposes of the rule, and the
affidavit was therefore not admissible
under this rule. United States v. Micke,
859 F.2d 473, 477 (7th Cir. 1988). There
is no indication in this record that
Anthony Scruggs wrote the affidavit in
conjunction with a "proceeding" as
contemplated by Rule 801(d)(1)(A), and so
that rationale does not support its
admission.
The other theory proposed by the
government in support of admitting the
document is that the affidavit tended to
impeach the witness, and the government
sought, for strategic reasons, to reveal
its own witness’ lie to the jury before
the defendant had an opportunity to do
so. As such, the government argues that
the affidavit was admissible under Rule
801(d)(1)(B). In other words, the
government sought to reveal the
conflicting affidavit to the jury in
order to soften the blow when the jury
discovered the government’s witness had
lied before. But Rule 801(d)(1)(B), which
excludes from the definition of hearsay
prior consistent statements offered to
rebut an express or implied charge of
recent fabrication, does not support the
admission either. As the government
concedes, the affidavit contained
statements that were contrary to Scruggs’
testimony at trial.
Although the government’s arguments do
not carry the day here, we find the
district court did not plainly err in al
lowing admission of the affidavit because
it was not hearsay at all. Rule 801(c)
defines hearsay as a "statement, other
than one made by the declarant while
testifying at the trial or hearing,
offered in evidence to prove the truth of
the matter asserted." The affidavit
clearly was not introduced to prove the
truth of the matter asserted. In the
affidavit, Scruggs stated that he had
never seen Williams with any drugs and
that he had never heard Courtney Hoffman
talk about any drug deals with Williams.
If true, the affidavit would tend to
exonerate Williams, and so the government
hardly sought to introduce it for the
truth of its contents. See United States
v. Limehouse, 950 F.2d 501, 503 (7th Cir.
1991). To the contrary, the government
sought to introduce the affidavit in
order to have Scruggs explain why it was
not true, and why he lied at that time.
The letter came in for the same purpose,
and thus the court did not plainly err in
admitting the letter as well.
That leads us to the various statements
made by co-conspirators. The government
contends that these statements are not
hearsay under Rule 801(d)(2)(E). That
rule excludes from the definition of
hearsay a statement by a co-conspirator
during the course and in furtherance of
the conspiracy. That rule applies to
nearly all of the statements cited by
Williams, and so we find that the court
did not err in admitting those
statements. The only possible exception
is the one statement to which Williams
objected at trial. Williams objected to
Detective Thompson’s testimony that
Barnes admitted that the cash found
strapped to Barnes’ body in a consensual
search was obtained from Hoffman and was
drug money. Williams maintained at trial
that Barnes was not speaking in
furtherance of the conspiracy because he
was talking to law enforcement at the
time of the statement. We agree with the
defendant that Barnes’ admissions to law
enforcement that the money was "drug
money" were not made in furtherance of
the conspiracy and thus were not
admissible against Williams under Rule
801(d)(2)(E). See United States v.
Santos, 20 F.3d 280, 286 (7th Cir. 1994).
However, we believe in light of the other
overwhelming evidence that this money was
drug money destined for Texas, that this
error was at worst harmless. Id. Because
we find that the district court did not
err, with the exception just stated, in
its various evidentiary rulings, we also
reject Williams’ contention that the
cumulative effect of any evidentiary
errors deprived him of a fair trial.
D.
Williams testified in his own defense,
and he complains that much of the
government’s cross-examination of him
consisted of improper material relating
to prior bad acts and prior convictions.
He concedes that he did not object to
these questions at trial, but maintains
that the district court had an
independent duty under Rules 403, 404(b)
and 609 to weigh the probative value of
this evidence against its prejudicial
effect, and exclude it if the prejudice
outweighed the probative value. He also
maintains that the court erred in
refusing him a Rule 404(b) jury
instruction, limiting the use of this
information by the jury. The government
replies that Williams opened the door to
this cross-examination when he testified
about his prior convictions during his
lawyer’s direct examination of him.
Because Williams did not object to this
questioning at trial, we will review for
plain error only. United States v. White,
222 F.3d 363, 369 (7th Cir. 2000).
A survey of Williams’ direct examination
demonstrates that the government is
correct that Williams raised each of
these prior convictions himself in his
case-in-chief. Williams first admitted
that in 1992 he signed for a package
while staying at the home of Craig
Hoffman’s mother, and that he was
arrested as a result of that incident.
Tr. Vol. IX, at 12. He conceded he had
also "got in trouble in El Paso," that he
had been "set up" and was caught selling
drugs to an undercover police officer.
Tr. Vol IX, at 13. He also told the jury
he was charged in a marijuana conspiracy
in Arizona, to which he pled guilty.
Finally, he conceded that while he was on
probation for the Arizona conviction, he
was arrested in New Jersey for another
marijuana conspiracy. Tr. Vol IX, at 19-
20. As with the El Paso incident,
Williams claimed to have been "set up" in
New Jersey. In describing each incident,
Williams revealed only selected details,
tried to distance himself from
responsibility, and claimed to be cooper
ating with the police whenever
cooperation was requested of him
following an arrest. Under these
circumstances, it was not erroneous for
the district court to allow the
government to cross-examine Williams
regarding each incident. White, 222 F.3d
at 370. Ordinarily, on cross-examination,
the details of the prior convictions
should not be exposed to the jury. Id.However, "where a defendant attempts to
explain away the prior conviction during
direct examination by giving his own
version of events, he has ’opened the
door’ to impeachment by the prosecution
on the details of the conviction." Id.The prosecution here tailored its
questions to Williams’ statements on
direct, and we see no error in the
district court allowing this questioning,
much less plain error./1 Nor do we find
any error in the district court’s fail-
ure to give a Rule 404(b) instruction to
the jury regarding this evidence.
E.
Williams next contends that the
government engaged in racial
discrimination in the jury selection
process, impermissibly striking all
African-American venire persons from the
panel. Although the government struck all
four African-American members of the jury
pool, Williams challenges only the ouster
of Juror P, maintaining that the
government’s reason for striking him was
based entirely on speculation and is
therefore suspect./2 Although Williams
claims that striking the other three
African-American venire persons
established a pattern of racial
discrimination, he seems to concede that
the government established adequate-race-
neutral explanations for its exercise of
peremptories in those three cases./3
Our review of the record shows that
government struck the first because two
of her children had been prosecuted for
drug offenses, the second because her
brother had been prosecuted by the very
Assistant United States Attorney who was
prosecuting the instant case, and the
third because he was extremely nervous
and knew some of the witnesses. These are
adequate race-neutral explanations for
the strikes. We turn then to the reasons
given for Juror P. Juror P revealed that
he was single, a high school graduate,
and was a security officer residing in
East St. Louis. The government did not
ask Juror P any more spe-cific follow-up
questions. Tr. Vol. I, at 9. In its
general questions to the jury, the court
inquired whether anyone in the pool was
acquainted with any witnesses and Juror P
indicated that he was not.
The government told the trial court that
it had tried to obtain more information
about Juror P because the police officers
in the case had indicated that a family
sharing Juror P’s last name was notorious
for its involvement in drugs in East St.
Louis and Centreville. Because the
government obtained Centreville addresses
for Juror P and for the company that
employed him, and because Centreville was
a close community where many of the
witnesses were notorious, the government
believed that Juror P might be acquainted
with the witnesses or would recognize
them when he saw them. Tr. Vol. I at 125-
26. Williams’ counsel objected to the
"extraneous information brought in on
[Juror P] that we have no idea about."
Tr. Vol. I at 126. The court disagreed
that the government was required to file
some sort of discovery protocol in order
to strike a juror, and found that the
reasons given were adequate and non-
discriminatory. The court therefore
denied Williams Batson challenge. See
Batson v. Kentucky, 476 U.S. 79, 85-86
(1986).
Because the government excluded all four
African-American members of the jury
pool, the district court did not err in
requiring the government to state a race-
neutral explanation for its exercise of
peremptories for these jurors. See
Mahaffey v. Page, 162 F.3d 481, 485 (7th
Cir. 1998) (inference of discrimination
may arise when one party uses its
peremptories to strike each and every
African-American from the venire). The
government’s reasons "need not rise to
the level justifying exclusion for cause,
[but] must be clear and reasonably
specific, presenting legitimate reasons
that are related to the particular case."
United States v. Mojica, 984 F.2d 1426,
1449 (7th Cir. 1993) (citation omitted).
"Adequate explanations for exercising a
peremptory strike may include a
prosecutor’s ’intuitive assumptions that
are not fairly quantifiable.’" Dunham v.
Frank’s Nursery & Crafts, Inc., 967 F.2d
1121, 1125 (7th Cir. 1992). The trial
court must then determine whether the
defendant has established that the
exclusion of jurors was based on
discriminatory criteria, and we will
uphold that credibility-based
determination unless it is clearly
erroneous. Mojica, 984 F.2d at 1449. The
district court here found the
government’s reasons to be adequate and
race-neutral. We agree that the reason
stated is clear, specific and related to
the case. The government had some
information that Juror P could be related
to a family known to the local police for
its drug activities. Juror P resided in a
relatively small town, and the government
was concerned that, although he claimed
not to recognize any of the names on the
witness list, he might recognize
witnesses once he saw them. In the middle
of the jury selection process, the
government obviously had no time to
investigate and verify this suspicion
regarding Juror P. The district court
believed the government’s stated reasons
to be its real reasons, and we see no
reason to second guess that judgment. We
therefore affirm the district court’s
ruling on the Batson challenge.
F.
Williams next claims a fatal variance
between the indictment and the proof at
trial. In particular, he complains that
only one conspiracy was charged but that
multiple conspiracies were proved at
trial. Because no limiting instruction
was given, Williams believes that he was
prejudiced. We note first that Williams
did not proffer any limiting instruction
at trial, and so we review that component
of his argument for plain error. Even on
appeal, Williams fails to specify what
instruction he believes the district
court was required to give. He complains
of possible jury confusion caused by a
failure to instruct the jury regarding
the limited use of evidence relating to
other defendants, and confusion caused by
the number of conspirators charged and
the number of conspiracies proved.
A conspiracy variance claim is really "a
challenge to the sufficiency of the
evidence supporting the jury’s finding
that each defendant was the member of the
same conspiracy." United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir.
1991). Whether a single conspiracy exists
is a question of fact and hence is a
question for the jury. Id. Even if the
evidence arguably established multiple
conspiracies, there is no material
variance from an indictment charging a
single conspiracy if a reasonable trier
of fact could have found beyond a
reasonable doubt the existence of the
single conspiracy charged in the
indictment. Id. See also United States v.
McAllister, 29 F.3d 1180, 1186 (7th Cir.
1994). Even if we were to find a
variance, Williams would also have to
show that he was prejudiced by the
variance. United States v. Curtis, 37
F.3d 301, 305 (7th Cir. 1994).
Williams argues that it would be almost
impossible to determine how many
conspiracies were proved here. He names
as separate conspiracies the Wolf Pack
organization, Willie Thomas’ multiple
suppliers, Courtney Hoffman’s suppliers
in Fort Worth, Dallas and Mexico, and
Maurice Williamson’s connections in
California. He points out that both of
Williams’ co-defendants at trial were
acquitted of the conspiracy charges. We
do not review the evidence de novo when
we review a claim of variance. Because
the question of a variance is factual, we
must determine, viewing the evidence in a
light most favorable to the government,
whether the evidence is sufficient to
support the jury’s determination. United
States v. Magana, 118 F.3d 1173, 1186
(7th Cir. 1997). With that standard in
mind, we turn to the indictment first and
then to the proof at trial. The
indictment alleged that Williams,
together with Mitchell, James Brown,
Michael Andre Hoffman and a host of
previously indicted co-conspirators,
conspired to possess and distribute
cocaine and crack cocaine in the Southern
District of Illinois from approximately
1990 to 1998. R. 288. Mitchell and
Michael Andre Hoffman were acquitted of
the conspiracy charge. Brown pled guilty
to conspiracy, as did a number of the
previously indicted co-conspirators. At
trial, the government showed that
Williams and Courtney Hoffman had a
distributor/supplier relationship from
1990 to January 1998. Williams initially
used his own couriers to deliver
marijuana and cocaine to Hoffman in the
East St. Louis area, but after Williams
was arrested in 1992, Hoffman had to
supply his own couriers to transport the
drugs from Texas to Illinois. Hoffman’s
couriers traveled to Texas by various
modes of transportation, with cash
strapped to their bodies to use as
payment to Williams for the drugs.
Hoffman distributed the drugs in Illinois
through a number of distributors. One of
his main distributors was Willie Thomas,
who led a group known as the "Wolf Pack."
The Wolf Pack and others distributed the
drugs further, to street level customers.
The government posits that this evidence
established a single conspiracy to
distribute cocaine, extending from the
supplier in Texas, in this case Williams,
to mid-level distributors in the East St.
Louis area, to street level dealers. We
are inclined to agree with the government
that, although the evidence may have
shown a number of subgroups involved in
the conspiracy, that fact is not
dispositive. "The crime of conspiracy
focuses on agreements, not groups."
Townsend, 924 F.2d at 1389. The
government need not prove that Williams
conspired with all of his co-defendants
or all of the previously indicted co-
conspirators, but only that he joined the
agreement. Id. There was enough here for
the jury to conclude that a number
ofpeople had an agreement to distribute
drugs in East St. Louis, and that
Williams joined that agreement. A jury
instruction regarding multiple
conspiracies might have been helpful and
appropriate here but it was not necessary
because Williams has not shown he was
prejudiced by the absence of the
instruction.
G.
After the verdict, Williams moved for a
new trial on the basis of nine asserted
errors, four of which we have already
addressed above and will not revisit
here. On appeal, he abandons four of the
remaining five issues, and claims only
one additional problem entitling him to a
new trial. He maintains that the
government was obligated to provide the
Texas probation records to him pursuant
to its obligation under Brady v.
Maryland, 373 U.S. 83 (1963). He
complains that once he subpoenaed the
records, the Marshall’s office in Texas
took four days to walk a subpoena down
the hallway to serve it. By then it was
too late for him to put the records to
good use. We review the district court’s
denial of Williams’ motion for a new
trial for abuse of discretion. United
States v. Linwood, 142 F.3d 418, 422 (7th
Cir. 1998). A Brady violation occurs only
if material evidence is withheld by the
prosecution. United States v. Stott, 245
F.3d 890, 901 (7th Cir. 2001). Evidence
is material if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of
the proceeding would have been different.
Id., citing United States v. Bagley, 473
U.S. 667, 682 (1985). In section II.C.1.
above, we found that, although the
records had some relevance to Williams’
defense, the district court did not err
in refusing to admit them because
Williams was unable to lay a proper
foundation for them. The records
documented periods of time when Williams
was given permission to travel, facts
known to Williams well in advance of the
trial. In light of the district court’s
proper exclusion of the records, and
because nothing in the records would have
otherwise aided Williams in the
preparation of his defense, we cannot
find that the probation records were
material to Williams’ defense. We
therefore hold that Williams was not
entitled to a new trial on the basis of
a Brady violation or on the basis of any
of the arguments he raised earlier.
H.
That brings us to Williams’ objections
to his sentence. He maintains first that
the court erred in enhancing his offense
level two points for obstruction of
justice. He contends that it was clear
error to find that he lied at trial when
his testimony was substantially the same
as his co-defendant Michael Andre
Hoffman, who was acquitted. He also
faults the court for relying on two prior
controlled substance convictions in other
jurisdictions as predicates for a life
sentence under 21 U.S.C. sec.
841(b)(1)(A) because the conduct involved
in these convictions was part of the same
conspiracy for which he was convicted
here. We will consider the obstruction of
justice enhancement first.
Section 3C1.1 of the Sentencing
Guidelines authorizes the trial court to
enhance the defendant’s offense level by
two levels if it finds by a preponderance
of the evidence that the defendant
willfully obstructed or impeded the
administration of justice during the
prosecution of the offense of conviction.
United States v. Godinez, 110 F.3d 448,
456 (7th Cir. 1997). The notes to that
Guideline list "committing, suborning, or
attempting to suborn perjury" as examples
of conduct warranting the enhancement.
Id. Consequently, when a defendant
testifies falsely at his own trial
concerning a material matter with the
willful intent to provide false testimony
rather than as a result of confusion,
mistake or faulty memory, the court may
apply the enhancement. Id. A simple
denial of guilt is not a sufficient basis
for the enhancement, nor is a guilty
verdict following the defendant’s
testimony on his own behalf. Id.; United
States v. Lozoya-Morales, 931 F.2d 1216,
1219 (7th Cir. 1991). When the defendant
challenges the application of the
enhancement, the district court must
review the evidence and make an
independent finding that the defendant
committed conduct, such as perjury,
warranting the enhancement. Godinez, 110
F.3d at 456. "We review de novo the
district court’s application of the
[G]uidelines, and we review factual
findings in the sentencing phase for
clear error." United States v. Macillas,
183 F.3d 682, 709 (7th Cir. 1999).
Williams did challenge the district
court’s application of the obstruction
enhancement, and the district court made
findings to support its decision:
All right, I have had an opportunity to
glance at a couple of the things I wanted
to. I believe that in Mr. Williams’
testimony, by his denial of the code that
was obviously being used in the tapes to
arrange the purchase of 5 or 6 kilograms
of cocaine, by the detailed denial of the
testimony of a number of his co-
conspirators affecting his participation,
and testimony about his participation in
the conspiracy, and by his claim, the
defendant’s claim, that his only
involvement in drugs with this conspiracy
during the life of this conspiracy, other
than the one kilogram in the 1992
Belleville delivery to which he has
admitted, his only involvement was done
in cooperation with law enforcement
officials, that through his testimony on
all of those subjects he provided
materially false information that if
believed could tend to and would tend to
influence or affect the issues under
determination, and I find that the
probation officer’s assessment of the 2
level enhancement for obstruction of
justice is proper and I overrule the
defendant’s objection number 2.
Tr. July 6, 1999 at 32-33. These findings
are sufficient to apply the enhancement.
The court was not simply relying on the
jury’s guilty verdict to find that
Williams perjured himself. Nor was the
court applying the enhancement because of
a simple denial of guilt. Rather, the
court applied the enhancement because the
court found that Williams provided
intentionally false information on
several material matters. Namely,
Williams lied about transactions
occurring outside his cooperation with
law enforcement, and lied about the code
he used on the telephone to communicate
with other conspirators about drug sales.
He also lied about his participation in
the conspiracy. All of these were
material to the charge of conspiring to
possess with intent to distribute
cocaine, and the court did not err in
applying the obstruction of justice
enhancement.
Finally, Williams challenges the court’s
use of two state court felony convictions
for marijuana offense as predicate
offenses for establishing that he is a
career offender under Sentencing
Guideline sec. 4B1.1. In 1994, Williams
pled guilty to conspiracy to possess with
intent to deliver marijuana in Arizona.
He was sentenced to probation with
special conditions, and eventually his
probation was revoked based on a new drug
conviction in New Jersey. Williams pled
guilty to the New Jersey offense,
possession with intent to distribute a
dangerous controlled substance, in 1995.
He now argues that the conduct comprising
these convictions occurred during the
same time period as the charged
conspiracy, and were part of the same
scheme. As such, he contends the court
erred in using these offenses as
predicates for career offender status.
Williams concedes that this Court has de
cided this issue against him, and raises
it merely to preserve it for further
appeal. See United States v. Garcia, 32
F.3d 1017 (7th Cir. 1994). Given this
concession, and because Williams offers
no reason for us to reconsider our prior
ruling, we will not consider the issue
further.
IV.
For all the reasons stated above, we
affirm the convictions and sentences of
both Alfred Williams and Derrick
Mitchell.
AFFIRMED.
FOOTNOTES
/1 Williams also complains that the government
improperly questioned him regarding his communi-
cations with his attorney, a car loan from his
brother, his involvement in a conspiracy, and a
not guilty plea he entered in 1992. We have
considered Williams’ other complaints about
improper cross-examination and find them equally
unavailing. We find no reversible error.
/2 We will refer to this juror as Juror P given the
nature of the government’s reasons for excluding
him.
/3 Williams did object at trial that two or three of
the excluded witnesses had specifically indicated
that they would not be biased in their judgments
based on the factors enumerated by the govern-
ment. He does not raise that objection on appeal,
and we will therefore give it no further consid-
eration.