United States v. Henderson, Rodney ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODNEY HENDERSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 1135—Matthew F. Kennelly, Judge.
____________
ARGUED MAY 15, 2003—DECIDED JULY 25, 2003
____________
Before BAUER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
BAUER, Circuit Judge. On December 19, 2001, a grand
jury returned an indictment charging Defendant Rodney
Henderson with one count of distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1) for activities dating back
to August 1998. Prior to trial, Henderson moved to dismiss
the indictment on the basis of prejudicial pre-indictment
delay, but the district court denied that motion. Henderson
was convicted after a three-day jury trial, and his subse-
quent motions for a new trial and a judgment of acquittal
were also denied. The court then sentenced Henderson to
151 months’ imprisonment and five years of supervised
release. Henderson appeals the prosecution’s attempt to
2 No. 02-4195
bolster the credibility of a government informant at trial as
well as the denial of his motion to dismiss for pre-indict-
ment delay. We affirm.
BACKGROUND
In March of 1998, Willie McPhaul, a cocaine dealer, began
providing the government with information on local drug
dealers and arranging undercover buys. McPhaul’s first
deal with Henderson occurred when McPhaul telephoned
Henderson’s place of employment, the What’s Up Bar-
bershop in North Chicago, Illinois, on August 27, 1998, to
arrange for the purchase of four and one-half ounces of
crack cocaine. The conversation, which was recorded by the
government, began with McPhaul asking Henderson how
much he would charge for “four and a half,” referring to
the four and one-half ounce quantity McPhaul sought.
Henderson replied by asking, “Oh, hard?” (meaning crack
cocaine). McPhaul replied, “Yeah,” and Henderson informed
him the cost would be “25,” meaning $2,500.00. McPhaul
agreed to the deal and told Henderson that they would meet
later that day or the next.
McPhaul telephoned Henderson the following day, August
28, 1998, to arrange a meeting time and place. Henderson
instructed McPhaul to meet him at the What’s Up Barber-
shop at one o’clock that afternoon. Prior to the meeting, FBI
agents thoroughly searched McPhaul’s truck, finding no
narcotics, and strapped a body wire to McPhaul to record
the deal. McPhaul then drove to Henderson’s barbershop,
entered the building (at which time surveilling agents could
not see McPhaul), used the restroom, spoke with a few
unidentified patrons, and then exited the barbershop with
Henderson. The two men proceeded to McPhaul’s truck,
wherein Henderson asked McPhaul if he had the money
to pay for the drugs. McPhaul replied that he did, and
Henderson responded that he would be right back.
No. 02-4195 3
Henderson then exited McPhaul’s truck and entered a
nearby residential building. He returned a short time later
and reentered McPhaul’s truck, placing a plastic bag con-
taining approximately 122.3 grams of crack cocaine in
the glove compartment. McPhaul paid Henderson, who
exited the truck and returned to the barbershop, and then
McPhaul drove to a pre-arranged location to meet with FBI
agents. Agents again searched McPhaul’s truck and located
the drugs Henderson left in the glove compartment.
Agents did not immediately arrest Henderson because the
government planned to use McPhaul to conduct investiga-
tions into other dealers and his status as an informant had
not been made public. Over the next three years, McPhaul
arranged undercover drug deals with four other crack
dealers in Illinois and Wisconsin, a Mexican cocaine sup-
plier, and an ecstasy dealer in North Carolina. In the
summer of 2001, the government began plea negotiations
with McPhaul and indicted him in November 2001.
On December 19, 2001, Henderson was indicted. Hender-
son sought to dismiss the indictment on the grounds that
the delay of slightly over three years prejudiced his ability
to present an alibi or identity defense because the barber-
shop had since closed, two former employees could not
recall anything about the day in question, and a possible
third witness (the owner’s daughter) had died. The district
court denied the motion, finding that the claim of prejudice
was speculative because there was no indication that any of
the witnesses or evidence to which Henderson pointed
would have actually been helpful to his defense. The court
also found that the government had not acted with bad
faith or recklessness.
Prior to trial, the government sought to prohibit Hen-
derson from attacking McPhaul’s credibility, provided the
government did not call McPhaul as a witness. Henderson
argued that McPhaul’s credibility was relevant because
4 No. 02-4195
McPhaul had the motive and opportunity to frame Hender-
son (in order to curry favor with the government and help
his own plea deal) and that he would attack McPhaul’s
credibility on those grounds. The district court ruled that
Henderson could introduce evidence regarding McPhaul’s
motive and opportunity to plant the drugs and frame
Henderson. Specifically, the court decided that Henderson
could elicit evidence regarding the existence of McPhaul’s
drug sources prior to his cooperation with the government,
that McPhaul engaged in other drug transactions while
cooperating with the government,1 that McPhaul was not in
the FBI agents’ view the entire time he was inside the
What’s Up Barbershop, and that McPhaul was attempting
to work out a plea deal with the government, which gave
him a motive to plant the drugs.
The government responded by arguing that United States
v. Lindemann, 85 F.3d 1232 (7th Cir. 1996), permitted the
introduction of evidence that McPhaul had cooperated in
cases against approximately twenty other individuals, re-
sulting in guilty pleas in three of the six cases that had
been resolved at that time. The district court agreed with
the government’s position and permitted the government to
question one of the FBI agents on re-direct examination
about McPhaul’s involvement in other cases. Following that
brief testimony, the court issued the following instruction
to the jury:
“You just heard some testimony in which there was a
reference made to guilty pleas that were made by other
people in other cases. The fact that other people may
1
Apparently, McPhaul was arrested for selling drugs while
assisting the government in other cases. Henderson sought to
introduce this evidence in order to show that McPhaul had other
suppliers from whom he could obtain drugs outside of the govern-
ment’s knowledge in order to frame Henderson.
No. 02-4195 5
have pled guilty in other cases cannot be considered by
you as any evidence of the guilt of the defendant in this
case.”
Henderson renewed his motion to dismiss based on pre-
indictment delay following the close of the government’s
case, which was again denied. After the jury returned a
guilty verdict, Henderson moved for a new trial, arguing
that the government improperly bolstered McPhaul’s cred-
ibility as a non-testifying witness. The district court denied
this motion, relying on United States v. Lindemann, and
subsequently sentenced Henderson to 151 months’ impris-
onment and five years of supervised release. This appeal
ensued.
ANALYSIS
A. Bolster of McPhaul’s Credibility
We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Bonner, 302 F.3d 776,
780 (7th Cir. 2002); United States v. Lindemann, 85 F.3d
1232, 1242 (7th Cir. 1996). We employ such deference be-
cause the district court is in the best position to judge the
admissibility of evidence due to the court’s familiarity with
the case as a whole. United States v. Curry, 79 F.3d 1489,
1495 (7th Cir. 1996). Consequently, an abuse of discretion
occurs only when no reasonable person could take the
district court’s view. United States v. Akinrinade, 61 F.3d
1279, 1282 (7th Cir. 1995).
In United States v. Lindemann, this Court discussed at
length the difference between improperly bolstering a
witness’s credibility and rehabilitating that witness follow-
ing an attack on the witness’s bias. Lindemann, 85 F.3d at
1242-44. We noted that bolstering consists of enhancing a
witness’s credibility before that credibility is attacked. Id.
at 1242. When the witness has been attacked, however, his
6 No. 02-4195
credibility may be restored through admissible rehabilita-
tion evidence. Id. We further held that an allegation by the
defendant that a witness falsely implicated him amounts to
an attack on the witness’s bias. Id. at 1243. Such an attack
is an attempt to demonstrate that the witness was moti-
vated by self-interest, an obvious form of bias, rather than
the truth. Id.When rehabilitating a witness in such a situation, it is
permissible to use extrinsic evidence because bias is not a
collateral issue. United States v. Scott, 267 F.3d 729, 735
(7th Cir. 2001); Lindemann, 85 F.3d at 1243. Accordingly,
the admissibility of rehabilitation evidence following an
attack on the witness’s bias is controlled solely by consid-
erations of relevance. Rule 401 of the Federal Rules of
Evidence defines relevant evidence as that which has “any
tendency to make the existence of any fact that is of con-
sequence to the determination of the action more probable
or less probable than it would be without the evidence.”
FED. R. EVID. 401 (2003).
Relevant evidence is admissible under Rule 402, but
admissibility can be limited by Rule 403. FED. R. EVID. 402,
403 (2003). The parameters of Rule 403 preclude the ad-
mission of otherwise relevant evidence “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” FED. R. EVID. 403.
In this case, Henderson first argues that McPhaul’s cred-
ibility was not attacked because McPhaul did not testify at
trial and the government solicited evidence of his prior
deals from one of the FBI agents. Lindemann deals square-
ly with the issue of whether McPhaul’s credibility was
attacked by Henderson and, though McPhaul did not testify
at trial, we find no reason to create an exception to Linde-
mann. Henderson’s argument that McPhaul framed him
No. 02-4195 7
was an attack on McPhaul’s credibility and the government
was entitled to introduce admissible rehabilitation evi-
dence.
That result leaves us with the question of whether evi-
dence of McPhaul’s cooperation was relevant and not
unfairly prejudicial to Henderson. On this issue, Henderson
argues that evidence of McPhaul’s cooperation in other
cases was not relevant because McPhaul did not yet have
other “bargaining chips” with which to negotiate a lesser
sentence, thereby giving McPhaul a greater motive to frame
him. We do not agree. McPhaul’s cooperation in other cases
made it less probable that he framed Henderson because
Henderson was the first of several “bargaining chips” with
which McPhaul could work. Lindemann, 85 F.3d at 1243.
The fact that Henderson was McPhaul’s first deal does not
remove this case from the Lindemann rationale. By the
time he arranged the deal with Henderson, McPhaul had
given other names to the government and eventually
assisted with investigations of those people. McPhaul knew
that he would have multiple bargaining chips, beginning
with Henderson, and the evidence of his further cooperation
casts doubt on Henderson’s argument that McPhaul had a
greater motive to falsely implicate Henderson.
Further, Henderson’s argument speaks only to the proper
weight to be given the evidence, not its admissibility. As
noted above, Rule 401 defines relevant evidence as that
which makes an assertion more probable or less probable.
We do not find error in the district court’s decision that this
evidence was relevant, nor did the district court err in
finding that the probative value of evidence of McPhaul’s
cooperation with other government cases was not out-
weighed by the danger of unfair prejudice. Without this
evidence, the jury might have believed that McPhaul’s plea
deal rested solely on the Henderson case, thereby making
a motive to frame Henderson all the more reasonable. It
was not unduly prejudicial to Henderson to present the jury
8 No. 02-4195
with an accurate understanding of the situation and allow
the jury to conclude which argument was more plausible.
Finally, immediately following the admission of this evi-
dence, the district court appropriately instructed the jury
not to infer Henderson’s guilt from evidence of McPhaul’s
cooperation in other cases that resulted in guilty pleas.
Lindemann, 85 F.3d at 1243-44.
B. Pre-Indictment Delay
Henderson next argues that the district court erred by not
dismissing his indictment because the prosecution severely
prejudiced his defense by waiting three years to charge him.
In the interim, Henderson contends, witnesses’ memories
faded, a potential witness died, and employment records
were destroyed, any of which might have supported his
defense. The prosecution counters that Henderson was not
prejudiced in the presentation of his defense and that the
delay occurred because McPhaul’s cooperation was not
complete following his drug deal with Henderson and the
government did not want to expose his informant status.
Again, we review the district court’s decision not to dis-
miss for pre-indictment delay for an abuse of discretion.
United States v. McMutuary, 217 F.3d 477, 481 (7th Cir.
2000). We first note that the statute of limitations for a
particular crime generally serves as a safeguard for defen-
dants against unreasonable prosecutorial delay. Id. So long
as the indictment is sought within the applicable time
frame, and notwithstanding the possible loss of evidence or
faded memories, the defendant will normally be able to
defend himself adequately. United States v. Baker, 40 F.3d
154, 157 (7th Cir. 1994). The applicable statute of limita-
tions was five years. 18 U.S.C. § 3282 (2003). The drug deal
between McPhaul and Henderson occurred on August 27-
28, 1998, and the indictment was returned on December 19,
2001, well within the statute of limitations.
No. 02-4195 9
Yet, the statute of limitations is not the only safeguard
afforded a defendant. The defendant may establish a due
process violation if the prosecutorial delay caused actual
and substantial prejudice to the defendant’s right to a fair
trial. McMutuary, 217 F.3d at 481-82. A defendant must
first show more than mere speculative harm but instead
must establish prejudice with facts that are specific,
concrete, and supported by evidence. Id. at 482. If a defen-
dant makes the proper showing, the burden shifts to
the government to demonstrate that the “‘purpose of the
delay was not to gain a tactical advantage over the de-
fendant or for some other impermissible reason.’” Id. The
government’s reasons are then balanced against the prej-
udice to a defendant to determine whether a due process
violation occurred. United States v. Canoy, 38 F.3d 893, 902
(7th Cir. 1994).
We have previously held that the death of a potential
witness alone is insufficient to establish actual and sub-
stantial prejudice. United States v. Koller, 956 F.2d 1408,
1414 (7th Cir. 1992); United States v. Valona, 834 F.2d
1334, 1338-39 (7th Cir. 1987); United States v. Solomon,
688 F.2d 1171, 1179 (7th Cir. 1982). The same holds true
with regard to witnesses’ memories that have faded, United
States v. The Honorable Judges of the Circuit Court of Cook
County, 138 F.3d 302, 310 (7th Cir. 1998) (“It is not enough
simply to speculate . . . that witnesses’ memories might
have faded because of the passage of time.”), and the loss of
possible physical evidence, such as employment records,
United States v. Spears, 159 F.3d 1081, 1085 (7th Cir.
1998); Canoy, 38 F.3d at 902-03.
Henderson’s argument that his defense was prejudiced is
based on these facts: Following his indictment, he inter-
viewed two former barbershop employees who remembered
him working there but did not remember anything about
August 28, 1998. What a clear recollection might have
uncovered to aid Henderson is unsaid. Likewise, the death
10 No. 02-4195
of a potential, third witness (the owner’s daughter), without
some evidence of what she might have supplied to aid
Henderson, does not meet the requirement to show preju-
dice.
Finally, Henderson argues that his defense was hampered
because the owner had destroyed all employment records
after closing the shop well before Henderson was indicted.
We fail to see how the possible existence of business records
would have supported Henderson’s particular defense.
When McPhaul called Henderson on August 28, 1998,
Henderson chose the time and location for their meeting.
McPhaul did not know prior to their telephone conversation
that Henderson would chose to complete the drug deal at
his place of employment. As a result, it is pure speculation
to conclude that McPhaul could have planted the drugs
prior to that day and that any barbershop witnesses or
business records would have placed him in the store for that
supposed purpose.2 FBI agents kept McPhaul under sur-
veillance (except for his brief detour into the barbershop)
making it highly unlikely for him to have obtained the
drugs from anyone other than Henderson.
Having determined that Henderson failed to establish
anything beyond speculation, we note briefly that the
government demonstrated that the delay was not used to
gain a tactical advantage over Henderson or for some other
impermissible reason. To the contrary, the government
established that the delay was occasioned by the timing of
McPhaul’s cooperation, in that he had not yet completed
assisting the government with other investigations. Quite
2
Henderson believes an appointment log or transaction receipt
would have shown McPhaul was in the barbershop prior to August
28, 1998, at which time McPhaul might have foreseen that Hen-
derson would choose to complete the deal at the barbershop and
stashed the drugs inside so that he could retrieve them in order
to frame Henderson.
No. 02-4195 11
reasonably, the government did not want to expose his
status as an informant and sacrifice those investigations.
Henderson failed to demonstrate that the district court
abused its discretion by not dismissing the indictment for
prosecutorial delay.
Accordingly, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-03