United States v. Cooper, Brian W. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1195
United States of America,
Plaintiff-Appellee,
v.
Brian W. Cooper,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 62--John C. Shabaz, Chief Judge.
Argued December 7, 2000--Decided March 21, 2001
Before Bauer, Manion, and Rovner, Circuit Judges.
Bauer, Circuit Judge. Brian W. Cooper appeals
his conviction for knowingly and intentionally
possessing a cocaine base with intent to
distribute. He asks for a new trial, arguing that
the district court committed plain error by
allowing the government both to introduce
testimony regarding the substance of an anonymous
tip implicating Cooper and to make repeated
reference to the substance of the tip throughout
his trial. Because we find that Cooper has waived
any error regarding the admissibility of the
substance of the tip, we affirm.
BACKGROUND
On April 16, 1999, Officer Mark Jaeger of the
Wausau, Wisconsin police department received a
telephone call from Detective Beecher of the Vice
Unit of the Milwaukee police department. Beecher
informed Jaeger that he had just received an
anonymous tip that there was a black man named
Brian Cooper who was traveling to the Wausau area
by Greyhound bus carrying several ounces of
cocaine. According to Beecher, the tipster had
provided several details, specifically that
Cooper was due to arrive in Wausau on a Greyhound
bus at 7:15 p.m., and that he would be wearing
either a gray "FUBU style" jacket or black
leather jacket with some type of writing on it
and carrying a duffel bag.
Relying on this information, officers Jaeger and
Peters drove to the Greyhound bus station and
waited for Cooper’s arrival. At approximately
7:15, they observed a black male wearing a black
leather jacket with writing on it exit the bus,
retrieve a blue duffel bag, and enter the
passenger side door of a waiting Chevy Impala.
They also saw the man place his duffel bag in the
Impala before sitting in the passenger front
seat. After the car drove off, Jaeger and several
other officers followed it for approximately five
to seven minutes until one of the officers
eventually stopped it for a traffic violation. As
the officer was writing up the traffic citation
in his squad car, he watched Cooper and Jemeir
Brown (the driver of the Impala) moving around
inside the vehicle, and he noticed Cooper bend
over at the waist towards the floor of the
vehicle. The officers then ordered both men to
get out of the car, and Jaeger retrieved his
search dog to search for drugs in the car.
While sniffing the outside of the car, the dog
"alerted" to the presence of drugs in the area
around the passenger side door. Jaeger then
allowed the dog inside the car, whereupon it
alerted twice more, this time on the passenger
side front seat and behind the driver’s seat in
the vicinity of Cooper’s duffel bag. Jaeger then
searched the areas of the car where the dog had
alerted. Under the front passenger seat (where
Cooper had been sitting), Jaeger found a pack of
cigarettes with some plastic hanging out of the
flap. When he opened the cigarette pack, Jaeger
found that it contained a brownish, chunky
substance which he believed to be some kind of
cocaine. An on-site Cobalt thicyanate test
confirmed that the substance contained cocaine.
The officers found no other drugs either in
Cooper’s duffel bag or elsewhere in the car.
Subsequent fingerprint tests on the cigarette
pack and on the bag containing the drugs yielded
no identifiable prints. Cooper was arrested and
charged with knowingly and intentionally
possessing, with intent to distribute, cocaine
base, schedule II controlled substance, in
violation of 21 U.S.C. sec. 841(a)(1). Jemeir
Brown was also arrested at the scene, but no
drug-related charges were filed against him.
Before trial, Cooper’s counsel filed a motion
in limine to exclude any reference to the
anonymous tip. The motion sought to bar the
government from making "any direct or indirect
mention whatsoever at trial before the jury of .
. . [the facts] [t]hat there was an anonymous tip
concerning the Defendant traveling to the Wausau
area with cocaine . . . [t]hat Detective Beecher
of Milwaukee had informed Officer Jaeger that the
defendant would be arriving in Wausau with
cocaine, based on the anonymous tip." The motion
argued that the tip was "unverified and
unsubstantiated," that if admitted it would tend
to show guilt without allowing Cooper to confront
the tipster, that its probative value is
"significantly outweighed by the prejudicial
effect that it might have on . . . the members of
the jury," and that "any objections to such
evidence at trial, even if sustained and/or
curative instructions given, would not remove the
prejudicial effects thereof." During a pre-trial
hearing on the motion before the Magistrate, the
government asserted that it believed that case
law clearly supported the admissibility of the
fact that the tip was received by the police. The
magistrate then stated, "I suppose the question
would be how much detail you are allowed to put
in [regarding the tip]." Cooper’s counsel then
replied, "Since I filed this motion in limine I
have had additional discovery. Quite frankly at
this point if it comes in, I don’t have any
objection." The Magistrate then offered, "If you
want the government to brief it, that’s fine."
Cooper’s counsel responded "No. At this
particular point, first of all, I truthfully
believe that probably it would come in to explain
the officer’s actions as far as the tip. Given,
as I said, the newly discovered evidence, I think
I will withdraw the entire motion. How’s that
sound?" The Magistrate again reminded Cooper’s
counsel that "[i]t’s your choice. You are
certainly entitled to be heard on it." However,
Cooper’s counsel reiterated "[n]o. I just as soon
withdraw it [sic]." During a conference held on
the first day of trial, the government confirmed
with the district court and Cooper’s counsel that
it would be asking Jaeger to testify "as to tip
information that he received," and it explicitly
stated that this information "would normally be
perceived as hearsay." After the government
reasserted its belief that case law supported the
admissibility of the tip and reiterated that it
was "advising the Court up front" that it would
be eliciting Jaeger’s testimony regarding the
tip, the court asked Cooper’s counsel if he had
any response. Cooper’s counsel said "Nothing in
that regard, Your Honor."
At trial, both the government and Cooper’s
counsel referred extensively to the substance of
the anonymous tip. In its opening statement, the
government stated that it anticipated that the
evidence would show that "[o]n April 16, 1999,
law enforcement officers up in Wausau, Wisconsin
received a tip by telephone and in that tip they
learned that an individual would be arriving in
Wausau that evening on the bus and a description
matching Mr. Cooper and that individual would be
carrying a quantity of drugs." Later, through its
direct examinations of officers Jaeger and
Peters, the government brought out more of the
details of the tip, including the tipster’s
prediction that "a black male by the name of
Brian Cooper" was coming to Wausau carrying
several ounces of cocaine, that Cooper would be
wearing either a gray FUBU style jacket or a
black leather jacket with writing on it, that he
would be carrying a duffel bag, and that he
boarded a Greyhound bus which left Milwaukee at
2:30 and which would arrive in Wausau at 7:15. In
its closing statement, the government summarized
Jaeger’s testimony and described the tip as "very
accurate." At no point did Cooper’s counsel
object to any of the government’s references to
either the existence or the substance of the tip,
nor did he request the court to provide any kind
of a limiting instruction regarding the tip.
Cooper’s counsel also made significant use of
the substance of the tip during the trial. In his
opening statement, Cooper’s counsel stated: "But
we have this anonymous tip. This is the link, if
you will, and it’s a call to the Milwaukee
authorities advising, so I understand, that he
[Cooper]’d be traveling by bus, arriving about
7:15, carrying several ounces of cocaine . . .
That he was going to be wearing a gray FUBU
jacket . . . or a black leather jacket . . .
[a]nd that he would be carrying a black duffel
bag." Similarly, in his cross-examination of
Jaeger, Cooper’s counsel asked "But basically the
tip was that Brian Cooper would be arriving from
the Milwaukee area and were you informed that it
would be around 7:15? . . . And that he would be
carrying a black duffel bag, correct?" Trial
Trans. at 59-60. Finally, in his closing
argument, Cooper’s counsel again referred to the
substantive details of the tip, this time using
those details to suggest that Jetaun Brown, the
wife of the car’s driver, Jemeir Brown, was the
only person who could have been the tipster:
"Really there’s only one person, one person who
knew that in fact he was going to Wausau . . .
that’s Jetaun Brown . . . Again, what was the
tip? The trip [sic] was that Brian Cooper would
be arriving, that he in fact would be carrying a
duffel bag . . . and that he would be there
approximately 7:00, 7:15 . . . So who made the
tip? . . . I think the evidence is that Jetaun
Brown made the tip."
The jury convicted Cooper as charged. He asks
us to vacate his conviction and to remand for a
new trial, arguing that even though he forfeited
objections to the admission of the substance of
the tip by failing to object at trial, the
district court plainly erred by allowing repeated
reference to, and testimony regarding, the
substance of the anonymous tip implicating
Cooper. Cooper contends that the government’s
references to the substance of the tip-- which
included a specific charge of criminality against
Cooper--violated his rights to confront the
witnesses against him and prejudiced the outcome
of his trial, and that whatever probative value
such statements had was substantially outweighed
by their prejudicial effect. The government
argues that we lack jurisdiction to review any
such "error," because by withdrawing his motion
in limine and using the substance of the tip in
his theory of the case, Cooper waived (rather
than forfeited) the issue.
DISCUSSION
Federal Rule of Criminal Procedure 52(b)
provides a court of appeals "a limited power to
correct errors that were forfeited because not
timely raised in district court." United States
v. Olano, 507 U.S. 725, 731 (1993). In such
cases, the reviewing appellate court may correct
an error committed by the district court provided
that the error is "plain" and that it "affects
substantial rights."/1 Id. at 732. However, Fed.
R. Crim. Pro. 52(b) does not authorize an appellate
court to review errors that have been waived,
rather than forfeited. This is because when a
party performs a valid waiver, technically there
can be no "error" to correct regarding the right
or issue waived, so all appellate review of the
issue is extinguished. See United States v.
Newman, 148 F.3d 871, 879 (7th Cir. 1998)
(citations omitted). Therefore, as the parties
recognize, the threshold issue in this case is
whether Cooper waived or merely forfeited any
objection to the admission of the substance of
the anonymous tip at trial.
Forfeiture is "the failure to make the timely
assertion of a right," while waiver is "the
’intentional relinquishment or abandonment of a
known right.’" Olano, 507 U.S. at 733 (citations
omitted). Put another way, a forfeiture is an
accidental or negligent omission (or an
apparently inadvertent failure to assert a right
in timely fashion), while a waiver is the
manifestation of an intentional choice not to
assert the right. We have found waiver where
either a defendant or his attorney expressly
declined to press a right or to make an
objection. See, e.g., United States v.
Richardson, No. 99-4309, slip op. at 5-6 (7th
Cir. Jan. 25, 2001) (holding that a defendant
waived an objection to a sentencing enhancement
where at sentencing the court asked the
defendant’s lawyer whether he had an objection to
the enhancement and the lawyer said "no"); United
States v. Scanga, 225 F.3d 780, 783 (7th Cir.
2000); United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000).
Applying these standards, we find that Cooper
waived any objection to the admission of the
tip’s substance at trial. In withdrawing his
original motion in limine, Cooper’s counsel
repeatedly stated that he had no objection to the
tip’s admission, despite the magistrate’s offer
to require the government to brief the issue, and
its reminder that he "certainly had a right to be
heard" on the matter. Even more significantly,
Cooper’s counsel referred to the details of the
tip during his opening statement and his cross-
examination of Jaeger, and then reiterated them
during his closing argument to bolster his theory
of the case (by suggesting that Jetaun Brown was
the only person who could have made the tip, and
that she had done so perhaps out of frustration
with both her husband and Cooper and because of
her belief that they had plans to be with other
women). Tr. Vol. 2 at 17-20. This was clearly a
strategic decision rather than a mere oversight.
Cooper argues that, while his counsel waived
any objection to the existence of the tip by
withdrawing the motion in limine and failing to
object at trial, he merely forfeited an objection
to the admission of its substantive details. In
support of this argument, Cooper notes that his
counsel told the district court that he had no
objection to the tip coming in "to explain the
officer’s actions." Cooper contends that this
statement can be read as waiving an objection to
the government’s admission of the fact that the
police had received an anonymous tip in order to
explain why they had set up surveillance on
Cooper, but not as waiving an objection to the
substantive details of the tip. Noting that we
must construe waiver principles liberally in
Cooper’s favor, see United States v. Perry, 223
F.3d 431, 433 (7th Cir. 2000), Cooper argues that
we must find that he merely forfeited an
objection to the admission of (or reference to)
the tip’s substance.
We reject this argument for several reasons.
First, the motion in limine had sought to prevent
the government from referring to either the
existence or the substance of the tip. Cooper’s
counsel deliberately withdrew the motion, stating
that he was doing so not only because he believed
the tip could come in to explain the officer’s
actions, but also because discovery that he had
conducted since he had filed the motion had
uncovered new evidence. This suggests both that
Cooper’s counsel knew he was withdrawing an
objection to the admission of the tip’s
substantive details, and that he was doing so (at
least in part) for strategic reasons./2
Moreover, at no point did Cooper’s counsel
indicate that he was preserving an objection to
the substance as opposed to the details of the
tip, despite having several opportunities to do
so both before and during trial. This alone might
well justify a finding of waiver. See United
States v. Valenzuela, 150 F.3d 664, 667-68 (7th
Cir. 1998) (holding that defendant waived his
right to appeal the issue of whether he had dealt
crack cocaine as opposed to some other form of
cocaine base where the defendant’s counsel
"carelessly" conceded at sentencing that the
defendant had dealt crack and did not include any
limiting language in his concession). However,
Cooper’s counsel did much more than this. First,
he brought the tip’s substantive details out on
his cross-examination of Jaeger and expressly
referred to those details himself during both his
opening statement and his closing argument./3
Moreover, he never asked for any kind of limiting
instruction to mitigate the potential harm of the
admission of the substantive details./4
Together, these actions demonstrate that Cooper’s
counsel deliberately chose to abandon any
objection to the admission of the tip’s
substance.
We recently stated: "It is one thing to require
judges to be alert to oversights that may affect
substantial rights, and another to require them
to override the clearly expressed wish of a party
or his lawyer, which may be backed by excellent
strategic reasons, not to invoke a particular
right. The law has not taken the second step."
Richardson, No. 99-4309, slip op. at 6. This
principle applies with equal force here. Cooper’s
counsel made a clear strategic choice to use the
substantive content of the tip. Even construing
waiver principles liberally in Cooper’s favor, we
cannot characterize this as anything but a
waiver.
One final point bears mentioning. "Whether a
particular right is waivable; whether the
defendant must participate personally in the
waiver; whether certain procedures are required
for waiver; and whether the defendant’s choice
must be particularly informed or voluntary, all
depend on the right at stake." Olano, 507 U.S. at
733 (citations omitted). In this case, Cooper has
argued that the admission of (and the
government’s repeated reference to) the anonymous
tip’s substance violated his Sixth Amendment
right to confront the witnesses against him.
Constitutional rights, including the right to
confrontation, can be waived. See United States
v. Hamilton, 107 F.3d 499, 506 (7th Cir. 1997).
However, "’courts indulge every reasonable
presumption against waiver’ of fundamental
constitutional rights and . . . ’do not presume
acquiescence in the loss of fundamental rights.’"
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(quotation omitted). We have decided that
Cooper’s counsel waived any objection to the
admission of the tip’s substance by strategically
using it and by failing to object to its
admission both before and during trial. However,
the government has not asserted that Cooper
personally waived his right to make the
objection. Therefore, assuming arguendo that the
government’s references to the tip’s substance
implicated Cooper’s rights under the
Confrontation Clause, we must determine whether
Cooper’s counsel could have effectively waived
Cooper’s right to make the objection on Cooper’s
behalf, notwithstanding the general presumption
against a defendant’s acquiescence in the waiver
of his constitutional rights.
The majority of circuits that have addressed
this question have held or stated that a
defendant’s attorney can waive his client’s Sixth
Amendment confrontation right "so long as the
defendant does not dissent from his attorney’s
decision, and so long as it can be said that the
attorney’s decision was a legitimate trial tactic
or part of a prudent trial strategy." United
States v. Reveles, 190 F.3d 678, 683 n.6 (5th
Cir. 1999) (internal quotation omitted). See
United States v. Plitman, 194 F.3d 59, 64 (2d
Cir. 1999); Hawkins v. Hannigan, 185 F.3d 1146,
1155-56 (10th Cir. 1999); cf. Sahagian v. Murphy,
871 F.2d 714, 716 (7th Cir. 1989) (holding that
defendant waived his right to confront a witness
where his counsel objected to the government’s
request to delay the trial until the witness
would be available for cross-examination and
where there was some indication that the
defendant had concurred in the objection, and no
indication that he dissented); but see Carter v.
Sowders, 5 F.3d 975, 981-82 (6th Cir. 1993)
(holding that evidence that the defendant
consented to not attend the video deposition of
an adverse witness was required in order to bind
him to his attorney’s waiver of his confrontation
rights). We agree with this conclusion. Since
Cooper does not argue that he dissented from his
attorney’s decision to use the tip’s substantive
details and to refrain from objecting to the
government’s use of those details, and since
Cooper has not presented any persuasive argument
as to why the waiver could not have been a
"legitimate trial tactic or part of a prudent
trial strategy," we hold that his attorney
effectively waived Cooper’s right to object to
the admission of the tip’s substance, even if
that right was guaranteed by the Sixth Amendment.
See Reveles, 190 F.3d at 683 n.6.
CONCLUSION
We find that Cooper has waived any objection to
the admission of or reference to the substantive
details of the anonymous tip. Therefore, because
there is no error to correct here, we decline to
address Cooper’s other arguments regarding plain
error, and we AFFIRM his conviction.
/1 However, a court should exercise its
discretionary authority to correct such an error
only if it "seriously affects the fairness,
integrity, or public reputation of judicial
proceedings." Olano, 507 U.S. at 732 (citations
omitted).
/2 In his reply brief, Cooper notes that the fact
that his counsel stated that he was withdrawing
the motion in limine because he thought that it
would come in to explain the officer’s actions
suggests that he thought that the content of the
tip was admissible, and did not realize that he
could object to its admission. Therefore, Cooper
argues that his failure to object to the
admission of the tip’s substance was a neglectful
error rather than a deliberate tactical decision,
and that his use of the tip’s substance at trial
was merely an attempt to explain the tip away
(and to minimize its harmful effects) in light of
his mistaken conclusion that it was admissible.
However, as we have noted, Cooper’s counsel
stated that he wanted to withdraw the motion in
limine at least in part because he had "obtained
additional discovery." This suggests that
Cooper’s counsel thought that he could use the
substantive details of the tip to his advantage
at trial, and casts doubt on Cooper’s claim that
he referred to the tip’s substance at trial only
as a desperate attempt to repair the damage
caused by its admission. Moreover, the claim that
Cooper’s counsel was not aware that he could
object to the admission of the tip’s substance
seems implausible given that the district court
expressly gave him more chances to object after
he announced his initial intent to abandon the
motion, and told him that he was "certainly
entitled to be heard" on the motion.
/3 We find that Cooper’s counsel’s repeated
reference to the substance of the tip at trial
distinguishes this case from United States v.
Krankel, 164 F.3d 1046 (7th Cir. 1998), which
Cooper relies on for the proposition that we
should apply the plain error analysis in this
case. In Krankel, the defendant’s counsel
initially moved to exclude portions of a
videotaped conversation to which the defendant
was a party. However, on the morning of trial,
the defendant’s counsel withdrew the motion for
tactical reasons, and thereafter failed to make
any objection to the introduction of the
unredacted tape at trial. While we used the
language of "waiver," we analyzed the defendant
counsel’s actions under principles of forfeiture,
and concluded that because the failure to object
to the admission of the tape was a tactical
decision, its admission was not plain error. Id.
at 1053. ("’[W]here a defendant fails to object
to the admission of evidence at trial because of
a tactical decision, we are even more reluctant
to find plain error.’" Id. (quotation omitted)).
Cooper argues that Krankel dictates that we
review his counsel’s actions for plain error as
well. However, whereas Krankel’s counsel merely
withdrew and withheld objections to the admission
of certain evidence for tactical reasons,
Cooper’s counsel affirmatively used the evidence
to which he now objects as part of his theory of
the case. We are hard-pressed to interpret this
as a forfeiture, and Krankel does not hold that
we must do so.
/4 In addition, because the motion in limine stated
that "[a]nd objection to such evidence at trial,
even if sustained and/or curative instructions
given, would not remove the prejudicial effects
thereof," it is clear that Cooper’s counsel was
aware even before withdrawing the motion in
limine that he could ask for a limiting
instruction.