United States v. Thomas, Vern ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3759
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERN THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 470-3—William J. Hibbler, Judge.
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ARGUED APRIL 8, 2002—DECIDED JUNE 26, 2002
____________
Before BAUER, EASTERBROOK and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. Appellant Vern Thomas and three
co-defendants, Edward Indihar, Salvatore DeLuca and Irvin
Thomas (Appellant’s brother, “Irvin”) were indicted as co-
conspirators and charged with various drug offenses.
Thomas was charged with conspiracy to possess with intent
to distribute cocaine, attempt to possess with intent to
distribute cocaine, and possessing a firearm in furtherance
of a drug trafficking crime. After a bench trial, the trial
court found Thomas guilty on all three charges. Subse-
quently, however, the trial court vacated its finding of
guilty on the possession of a firearm charge and instead,
entered a finding of not guilty. Thomas was sentenced to
2 No. 01-3759
serve 102 months in prison. He appeals his conviction and
sentence on several grounds, but for the following reasons,
we affirm.
BACKGROUND
In early spring of 2000, Edward Indihar contacted Roger
Romano and expressed his interest in purchasing cocaine.
Unbeknownst to Indihar, Romano was an undercover DEA
Task Force Officer. On May 29, 2000, Indihar met Officer
Romano at a restaurant in Norridge, Illinois to negotiate
the details of the drug purchase. Romano informed Indihar
that he had five kilograms of cocaine for sale at a certain
price, and they discussed a time and place to consummate
the deal. Outside the restaurant, Romano and another un-
dercover agent showed Indihar the five kilograms of cocaine
in the trunk of their vehicle. Afterwards, Indihar notified
DeLuca and Thomas of his meeting with Romano and
Thomas responded that he was eager to purchase the drugs.
Over the next several days, Indihar and DeLuca spoke
with both Officer Romano and Thomas in an effort to put
together a deal. On June 1, 2000, Indihar and DeLuca met
with Romano again and agreed to purchase the five kilo-
grams. Thomas agreed to pay $20,000 to Indihar for each
kilo and Indihar planned to purchase the kilos from
Romano at a lower price and share the difference with
DeLuca. Thomas told DeLuca and Indihar that he had
access to the money required to purchase all five kilos. The
three agreed that they would make the purchase later that
night at Chicago’s Rock N’ Roll McDonald’s.
At this meeting, Indihar paged Romano, and when
Romano called back, he spoke with Indihar, DeLuca and
Thomas. During this call, Thomas confirmed to Romano
that he wanted to buy the drugs that night; they then
discussed, at length, the details of the transaction. Thomas
told Romano that he and the others would meet Romano
No. 01-3759 3
at the McDonald’s. Thomas also stated that if the transac-
tion went smoothly, he would be interested in similar busi-
ness in the future. Officer Romano taped this conversation.
That night, Thomas and his brother Irvin arrived at the
McDonald’s in a red Buick. Indihar and DeLuca arrived
separately. Indihar called Romano to tell him that everyone
had arrived, but shortly thereafter, DeLuca noticed several
police vehicles in the area and they decided to change the
meeting place to a nearby parking lot. At the new location,
however, the transaction was again aborted because they
observed police vehicles in the area.
On June 15, 2000, the parties arranged for another meet-
ing at a restaurant. Again, Thomas and Irvin arrived to-
gether in the red Buick but remained in their car. Inside
the restaurant, Romano found Indihar and DeLuca and
requested to see the money. Indihar went outside and found
Thomas in his Buick. Thomas showed Indihar the purchase
money, which was in a brown paper bag on the front seat.
Indihar asked Thomas to bring the money into the res-
taurant, but he refused and instead requested that Romano
come outside to his Buick. Indihar told Thomas that
Romano wanted to see the money inside, but Thomas re-
sponded that “it wasn’t going to happen.”
Indihar had several more conversations with both
Romano and Thomas as to whether the purchase would be
made inside or outside the restaurant. Ultimately, it be-
came clear that Thomas was not coming into the restaurant
with the money and Officer Romano gave the other officers
in the area the arrest signal. DeLuca was arrested first
in the alley outside the restaurant. Upon seeing this,
Indihar told Thomas, “Sonny just got popped.” Thomas and
Irvin immediately sped away in their Buick. Two Task
Force officers blocked off a portion of the street with their
vehicle to stop Thomas’ Buick. The officers got out of
their vehicle, identified themselves as police officers and
4 No. 01-3759
ordered Thomas to stop. Instead, Thomas picked up speed
and drove around the officers, hitting the officers’ vehicle,
running over an officer’s foot and colliding with a parked
vehicle in the process. The officers returned to their vehicle
and pursued Thomas and Irvin, who were traveling at
approximately 40 or 50 miles an hour. Ultimately, Thomas
stopped the car and he and Irvin tried to escape on foot, but
police officers apprehended them.
After the arrest the officers searched Thomas’ Buick and
discovered a hidden compartment, from which they recov-
ered a number of items: 1) a brown paper bag containing
$20,000, 2) a loaded Davis Industry .22 caliber handgun, 3)
a scale commonly used to measure drugs, and 4) plastic
bags and packaging consistent with breaking down a kilo
of cocaine into smaller quantities. A subsequent vacuum
sweep of the car revealed cocaine residue in the compart-
ment as well.
On February 28, 2001, a grand jury returned a three-
count indictment against Thomas and the three co-conspira-
tors. Counts One and Two charged all four defendants with
conspiracy to possess with intent to distribute cocaine and
attempt to possess with intent to distribute cocaine. In
addition, Count Three charged Thomas and Irvin with use
of a firearm during and in relation to a drug trafficking
crime.
Thomas was tried in a three-day bench trial. The district
court admitted into evidence 18 tape-recorded phone con-
versations that Officer Romano had with Thomas and co-
defendants DeLuca and Indihar. Although the tapes were
made by Officer Romano, he was unable to testify at trial
because he had been severely injured in a car accident. In-
stead, the government offered the testimony of Task Force
Officer Edward Farrell to establish the foundation for the
recordings. Officer Farrell testified that Officer Romano
made the recordings in late May and early June, that the
No. 01-3759 5
recordings included conversations with Thomas as well as
co-defendants Indihar and DeLuca, and that Romano used
a cassette recorder and an earpiece in order to record his
own voice and the incoming voice from the telephone.
Farrell testified that after Romano made the recordings, the
tapes were taken into DEA custody. Finally, Farrell tes-
tified that he and the other officers had prepared and
reviewed the transcripts and that they were a true and
accurate transcription of the tapes.
The government also offered the testimony of Indihar to
establish the authenticity of the tape recordings. Indihar
testified that he had listened to each tape, and that he
recognized the voices on the tapes. Indihar was a party to
many of the taped conversations and was present with
Thomas for most of Thomas’ taped conversation with
Romano (although Indihar testified that he walked away
from this conversation briefly). He identified the voices of
Officer Romano, DeLuca, and Thomas, as well as his own
voice. Indihar also explained in detail the content of the
tapes and testified that the transcripts of the tapes accu-
rately reflected the recordings. After this testimony, the
government moved for the admission of the 18 tape record-
ings. Thomas’ counsel objected to the admission of some
of the tapes, arguing that Indihar’s testimony did not es-
tablish a proper foundation because he was not a party
to some of the conversations on the tapes. The district
court overruled the objection, holding that there was a
sufficient foundation for the tapes in which Indihar “was
present, he talked, . . . or he was in the immediate presence
and heard the conversations of the parties to the conversa-
tion or some of it at the time it was being recorded.”
At the conclusion of the trial, the district court found
Thomas guilty on all three counts of the indictment. Later,
however, the court reversed the finding of guilty on Count
Three, the firearm charge, holding that, although there was
evidence that Thomas used a firearm in connection with the
6 No. 01-3759
drug offense, the evidence did not establish proof beyond a
reasonable doubt. The court entered a finding of not guilty
on that count.
At sentencing, the district court increased Thomas’ base
offense level two points, pursuant to section 3C2.1 of the
Sentencing Guidelines, based on a finding that Thomas
recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing law
enforcement. In addition, the court determined that Thomas
possessed a firearm during the drug offense, and accord-
ingly increased his offense level two points under section
2D1.1(b)(1) of the Guidelines. Thomas was sentenced to 102
months on each of Counts One and Two, to run concur-
rently. He appeals his conviction and sentence.
ANALYSIS
A. Admissibility of Tapes
Thomas first argues that the district court erroneously
admitted tape recordings, specifically Tape Recording 9,
into evidence at trial without proper foundation or authenti-
cation. We generally review a district court’s evidentiary
rulings for an abuse of discretion. United States v. Hunt,
272 F.3d 488, 494 (7th Cir. 2001). Because of the great
deference we give to a trial judge’s evidentiary rulings, we
will not reverse unless the record contains no evidence on
which the trial judge rationally could have based its
decision. United States v. Gajo, 290 F.3d 922 (7th Cir.
2002).
Tape Recording 9 contains a conversation between
Thomas and Romano, in which Thomas is heard setting
up a location to meet Officer Romano for the purchase of
the cocaine, as well as a discussion of the terms under
which Thomas will be permitted to test the quality of the
cocaine. Thomas first contends that the district court erred
No. 01-3759 7
in admitting the tape because Indihar, the government’s
primary foundation witness, was not a participant in the
recorded conversations. Moreover, Thomas argues that
Indihar was only present for part of the conversation with
Romano and the government, therefore, failed to establish
that the tape recording was a true, accurate and authentic
verison of the actual conversation between Thomas and
Romano. We disagree.
Under Rule 104(a) of the Federal Rules of Evidence,
“[p]reliminary questions concerning the admissibility of evi-
dence shall be determined by the court,” and such matters
must be established by a preponderance of proof. FED. R.
EVID. 104(a); Bourjaily v. United States, 483 U.S. 171, 175-
76 (1987). See also United States v. Martinez De Ortiz, 907
F.2d 629, 631 (7th Cir. 1990) (en banc). It is well-settled
that a party offering a tape recording into evidence must
prove that the tape is a true, accurate and authentic rec-
ording of the conversation between the parties involved.
Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001).
This standard can be established in two ways: a chain of
custody showing that the tapes are in the same condition as
when recorded, or other testimony to demonstrate the
accuracy and trustworthiness of the evidence. United States
v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998). In this circuit,
the authenticity and accuracy of a tape recording can be
established through eyewitness testimony of the events in
question. United States v. Brown, 136 F.3d 1176, 1182 (7th
Cir. 1998).
In this case, Indihar listened to the tapes, identified the
voices of Thomas and Officer Romano, as well as his own,
and testified that the tapes did, in fact, accurately reflect
the recorded conversation. It is undisputed that Indihar
was sufficiently familiar with the voices of Thomas and
Romano to enable him to authenticate the recorded con-
versations. Moreover, during the conversation, Indihar
stepped away from Thomas only briefly but remained in the
8 No. 01-3759
immediate vicinity. Thus, Indihar served as a competent
witness for the authentication of the tape.
Thomas argues that the government did not prove that
the tape was not altered, but “merely raising the possibility
(however hypothetical) of tampering is not sufficient to
render evidence inadmissible.” Brown, 136 F.3d at 1182.
Further, Officer Farrell testified as to the manner in which
the tapes were recorded and stored. The district court
was satisfied that the government put forth the proper
foundation for the admissibility of the tapes. We are sat-
isfied as well that no extraordinary circumstances exist to
disturb the district court’s decision to admit the tapes into
evidence.
In addition, Thomas asserts that the government failed
to present adequate evidence of chain of custody, but so
long as other evidence is sufficient to establish the accuracy
and authenticity of the tapes, lack of proof regarding a
chain of custody does not render tapes inadmissible. United
States v. Craig, 573 F.2d 455, 478 (7th Cir. 1977). When
chain of custody is called into question without any evi-
dence of tampering, and if the tapes were in official custody
at all times, a presumption arises that the tapes were
handled properly. United States v. Scott, 19 F.3d 1238, 1245
(7th Cir. 1994). We believe that the testimony of both
Officer Farrell and Indihar gave the district court ample
evidence to find that the government provided an adequate
foundation for the admission of the tape recordings.
B. Firearm Enhancement
Thomas next submits that the district court erroneously
enhanced his sentence for possessing a firearm during
a drug offense. Section 2D1.1 states that the offense level
for a drug crime must be enhanced by two levels “if a
dangerous weapon including a firearm was possessed.”
U.S.S.G. § 2D1.1(b)(1). Thomas was acquitted of the charge
No. 01-3759 9
of possession of a firearm during and in relation to a drug
transaction crime in violation of 18 U.S.C. § 924(c). Thomas
asserts that because he was acquitted of the gun possession
charge, it was improper for the district court to punish him
for this conduct by enhancing his sentence. We review for
clear error. United States v. Watson, 189 F.3d 496, 501 (7th
Cir. 1999); United States v. Covarrubias, 65 F.3d 1362, 1370
(7th Cir. 1995).
At the outset, it is clear that an acquittal on a firearms
charge does not bar the imposition of a sentence enhance-
ment based on the same conduct. See United States v.
Watts, 519 U.S. 148, 157 (1997) (holding that a sentencing
court can consider conduct of which a defendant has been
acquitted as long as that conduct has been proven by a
preponderance of the evidence); United States v. Booker, 115
F.3d 442, 444 (7th Cir. 1997) (holding that acquittal of us-
ing or carrying a firearm in connection with drug offense
did not “acquit” defendant of sentencing enhancement in
connection with drug crime); United States v. Pollard, 72
F.3d 66, 68 (7th Cir. 1995) (holding that the acquittal on a
§ 924(c) charge does not prohibit invoking the weapon
enhancement under § 2D1.1(b)(1) of the Guidelines). The
acquittal only means that the government “failed to estab-
lish culpability beyond a reasonable doubt,” not that the
defendant did not commit the act. United States v. Fonner,
920 F.2d 1330, 1332 (7th Cir. 1990). In order to impose
the firearm enhancement, the sentencing judge need on-
ly be convinced by a preponderance of the evidence that
the defendant engaged in the conduct. By contrast, to es-
tablish a criminal conviction, the government must prove
the use of the firearm beyond a reasonable doubt. Booker,
115 F.3d at 444 (stating that the standards of proof and
persuasion differ for 18 U.S.C. § 924(c) and section 2D1.1(b)
of the Guidelines); United State v. Chandler, 12 F.3d 1427,
1434 (7th Cir. 1994) (holding that the burden of proof for
the sentencing enhancement is less stringent than for a
10 No. 01-3759
conviction). Accordingly, it is well within the discretion of
the district court to consider this conduct and the acquittal
on the criminal charge is irrelevant.
Having established that the acquittal does not preclude
the enhancement, we still must review for clear error the
district court’s factual finding that the defendant possessed
a firearm in connection with these drug offenses. Chandler,
12 F.3d at 1435. Application Note Three to section 2D1.1(b)
states, “the adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1(b), cmt. n.3.
Actual possession of the firearm need not be established in
order to trigger the enhancement. Covarrubias, 65 F.3d at
1371. Instead, proof of constructive possession, that is, that
the defendant had the power and the intention to exercise
dominion or control of the firearm, is sufficient to war-
rant the enhancement. Id. An enhancement under section
2D1.1(b)(1) can be imposed even for “simple, and entirely
passive, possession” of a firearm. Booker, 15 F.3d at 443.
The district court imposed the two-point enhancement
reasoning that “it is quite often the case that where drug
transactions take place there are also weapons and other
forms of security to . . . protect both the participants and
the product” and, in this case, the weapon was found “in
such close proximity to the money and the place where
drugs had been transported before.” As a result, the court
held it was not clearly improbable that the weapon was
connected to the offense. This finding by the district court
was not clearly erroneous. Before he fled from his car,
Thomas was in the driver’s seat. After Thomas was ar-
rested, officers recovered from a hidden compartment in his
car a loaded handgun, $20,000, a scale for measuring drugs
and plastic bags for breaking cocaine into smaller measure-
ments. A further sweep of the compartment also revealed
cocaine residue. The record clearly supports the district
court’s conclusion that Thomas had knowledge of and
No. 01-3759 11
control over the firearm in the car in the process of commit-
ting a drug offense. Chandler, 12 F.3d at 1435 (upholding
firearm enhancement where police found pistol on front
seat of defendant’s car shortly after defendant sold crack
cocaine to detective). Moreover, the weapon was recovered
from the same compartment as the money for the drug
purchase. The “proximity of a weapon to drug proceeds
provides a sufficient nexus to conclude that it was not
clearly improbable that the gun was connected with the
offense.” United States v. Johnson, 227 F.3d 807, 814 (7th
Cir. 2000) (internal quotations omitted). Accordingly, it was
not clear error for the district court to impose the enhance-
ment. Id.
C. Reckless Endangerment Enhancement
Finally, Thomas argues that the district court erroneously
enhanced his sentence for reckless endangerment pursu-
ant to section 3C1.2 of the Guidelines. Again, we review for
clear error. Watson, 189 F.3d at 501.
To establish that a defendant’s sentence should be en-
hanced for reckless endangerment, the government must
show that the defendant (1) recklessly, (2) created a sub-
stantial risk of death or serious bodily injury, (3) to another
person, (4) in the course of fleeing from a law enforcement
officer. U.S.S.G. § 3C1.2; Watson, 189 F.3d at 502. The
Guidelines define recklessness as “a situation in which the
defendant was aware of the risk created by his conduct and
the risk was of such a nature and degree that to disregard
that risk constituted a gross deviation from the standard
of care that a reasonable person would exercise in such a
situation.” U.S.S.G. §§ 2A1.4 cmt. n.1, 3C1.2, cmt n.2.
Section 3C1.2 does not require that the defendant’s acts
cause actual injury, only that the defendant’s behavior
posed the risk for injury to others. U.S.S.G. § 3C1.2, cmt.
n.6.
12 No. 01-3759
Thomas’ flight from the officers satisfies this legal stan-
dard. After becoming aware that DeLuca was arrested,
Thomas immediately sped off in his car in a clear attempt
to avoid being apprehended. The officers identified them-
selves to Thomas and demanded that he stop his vehicle.
Instead, Thomas picked up speed, traveling through a res-
idential neighborhood at a speed of up to 50 miles an
hour. He led police on a high-speed chase and in the proc-
ess, his vehicle hit a police vehicle, ran over an officer’s
foot and collided with another car on a residential street.
These acts posed a danger to the officers and innocent by-
standers, and fall squarely within the scope of section
3C1.2. See Watson, 189 F.3d at 502; United States v. Woody,
55 F.3d 1257, 1274 (7th Cir. 1995) (holding that flight
from police and high-speed chase is sufficient to warrant
a section 3C1.2 enhancement); United States v. Velasquez,
67 F.3d 650, 655 (7th Cir. 1995) (holding that flight from
the scene at a high rate of speed on a residential street is
enough to support an enhancement under section 3C1.2).
Thomas created a substantial risk of serious bodily injury
in his attempt to avoid arrest and flee the officers. The
district court’s imposition of a two-point enhancement un-
der section 3C1.2 was not clear error.
CONCLUSION
We AFFIRM Thomas’ conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-26-02