United States v. Simpson, Sammie J. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3794, 02-3832 & 02-3901
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMMIE J. SIMPSON, a.k.a. “WESTSIDE,” LEVENCE
SIMPSON, and JERRY E. MCGINNIS, a.k.a. “DOC,”
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 01-10038—Joe B. McDade, Chief Judge.
____________
ARGUED MAY 30, 2003—JULY 24, 2003
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
RIPPLE, Circuit Judges.
FLAUM, Chief Judge. The defendants appeal their con-
victions and sentences for having conspired to distribute
heroin and crack cocaine, in violation of 21 U.S.C. §§ 846and 841(b)(1)(A). We affirm.
I. BACKGROUND
We provide only a brief description of the facts here;
where additional facts are relevant to specific argu-
2 Nos. 02-3794, 02-3832 & 02-3901
ments, we mention them later. From 1997 to 2001, Sammie
Simpson (“Sammie”), his brother LeVence Simpson
(“LeVence”), and Jerry McGinnis were involved in a conspir-
acy that transported heroin and crack cocaine from Chicago
to Peoria, Illinois. All three defendants participated in the
actual transport of the drugs, which were then fronted to
various dealers for sale in Peoria. All told the conspiracy
involved, by conservative estimates, the trafficking of at
least nine kilograms of crack and one kilogram of heroin.
The defendants were charged and convicted after a four-
day jury trial of conspiracy to distribute, with LeVence
being additionally convicted of two counts of possession
with intent to distribute. Sammie and LeVence were then
sentenced within their guidelines range to 262 months and
240 months, respectively. McGinnis, however, received a
much lighter sentence of 60 months. The defendants now
appeal, challenging their convictions and sentences on
numerous grounds.
II. DISCUSSION
We begin with the arguments that are common to all
three defendants, the first being that the district judge
biased the defense by taking an overactive role during trial.
This claim cannot withstand scrutiny. The defendants
specifically complain of twelve instances where the judge
interrupted defense counsel, but in all twelve of those
instances, the judge’s intervention was for the legitimate
purpose of clarifying ambiguous testimony, see United
States v. Martin, 189 F.3d 547, 554 (7th Cir. 1999), or
preventing repetitive or immaterial testimony, see United
States v. Koliboski, 732 F.2d 1328, 1330 (7th Cir. 1984). For
instance, when LeVence’s attorney, Arthur Inman, asked a
witness a number of questions about the conditions of his
prior incarceration, the judge interrupted and said, “Mr.
Inman, can we move on to things relevant to this lawsuit
Nos. 02-3794, 02-3832 & 02-3901 3
and not this gentleman’s past conditions? . . . I guess I don’t
think the detail of which you’ve gone into is relevant. If you
have a point to make, you can make it, but I don’t want to
dwell on his conditions at Tamms or other institutions.” The
defendants also complain of such things as the judge’s
admonitions to counsel not to ask questions that had
already been “asked and answered” and the judge’s request
to have a sidebar. The defendants’ remaining complaints
are along these same lines, so we will not detail them here.
Suffice it to say that none of the judge’s remarks give rise
to any suggestion of bias but rather were clearly designed
to “make the interrogation and presentation effective for the
ascertainment of truth [and to] avoid needless consumption
of time.” Fed. R. Evid. 611(a); see United States v. Reynolds,
189 F.3d 521, 528-29 (7th Cir. 1999). Further, even if the
judge had displayed a bias (and we are not suggesting that
he did), the defendants would still have to show that they
suffered “serious prejudice” as a result, Martin, 189 F.3d at
553, which they have not done.
The defendants next claim that the judge erred in dis-
allowing the use of prior bad acts for purposes of impeach-
ing government witness Heather Wise. In 2000 Wise was
convicted of felony theft, and for purposes of sentencing in
that case, she admitted to the additional offenses of mari-
juana possession and unlawful possession of a converted
vehicle. The defendants now argue that they should have
been allowed, under Federal Rule of Evidence 609(a), to
impeach Wise with those admissions. The short answer to
this argument is that Rule 609(a) applies only to prior
convictions, and Wise was never convicted on the charges in
question.1 Further, the evidence was properly excluded for
the additional reason that it would have been cumulative to
1
The government characterizes the defendants’ claim as one
under Rule 608(b), but we find it clear that they are arguing only
that the evidence was admissible under Rule 609(a).
4 Nos. 02-3794, 02-3832 & 02-3901
the information that the jury already had. See United States
v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994). The defendants
took advantage of their numerous other avenues to prove
that Wise had reason to lie, pointing out for instance her
drug addiction, prior felony theft conviction, and her motive
for cooperating. The judge also permitted the defendants to
impeach Wise with her admission to unlawful use of a
credit card, finding the act to be arguably probative of her
character for untruthfulness. See Fed. R. Evid. 608(b).
Turning to the defendants’ individual claims: LeVence
contends that he is entitled to a new trial because the judge
“denounced” the closing argument of his attorney (Inman).
Four times during his argument, Inman told the jury that
it could not credit the testimony of the government’s
witnesses unless it believed each of them “beyond a reason-
able doubt.” Eventually, the district judge interrupted the
argument and stated,
Mr. Inman, that’s the fourth time you’ve told the jury
that they have to believe someone beyond a reasonable
doubt. I will tell the jury now, that will not be one of my
instructions to you. My instruction to you will be that
the government has the burden of proving the Defen-
dant’s guilt beyond a reasonable doubt.
LeVence asserts that these comments unfairly prejudiced
his defense because they suggested that “Mr. Inman had
1) done something improper four times, 2) had misstated
the law, and 3) had misled the jury.” This is a meritless, if
not frivolous, argument. Comments made by a trial judge
during closing argument can only warrant reversal if it
appears that the judge’s conduct was “clearly prejudicial to
the rights of the party.” United States v. Briggs, 700 F.2d
408, 414 (7th Cir. 1983). Here, LeVence fails to explain how
the judge’s remarks, which were obviously intended to
correct Inman’s misstatement of the law, caused him clear
prejudice. In fact the judge “has the right, and often the
Nos. 02-3794, 02-3832 & 02-3901 5
obligation, to interrupt the presentations of counsel in order
to clarify misunderstandings or otherwise insure that the
trial proceeds efficiently and fairly.” Id. (emphasis added).
Sammie challenges his sentence, claiming that the judge
was under the mistaken impression that he did not have
the authority to depart downward from the guidelines
range. The sentencing transcript belies Sammie’s assertion,
however; the judge made clear that he was declining to
downward depart because the circumstances of the case
did not warrant departure. Sammie and LeVence also
complain that their respective sentences of 262 months and
240 months are unreasonably disparate from McGinnis’s
“illegal” sentence of 60 months. We have been over this
ground many times before. As we have said on numerous
occasions, “a disparity among co-defendants’ sentences is
not a valid basis to challenge a guideline sentence otherwise
correctly calculated.” United States v. Simmons, 218 F.3d
692, 696 (7th Cir. 2000). This is true even though Sammie
and LeVence are correct that McGinnis’s sentence was not
arrived at appropriately. The judge purported to grant
McGinnis a downward departure because of his age and
infirmity, see U.S.S.G. § 5H1.1, but the judge had no auth-
ority to take this action because the mandatory sentence by
statute was life imprisonment. (McGinnis has four prior
felony drug convictions.) See 21 U.S.C. § 841(b)(1)(A). The
only provisions allowing for departure from a statutory
minimum are 18 U.S.C. §§ 3553(e) and (f), neither of which
are applicable here. But the government has not appealed
McGinnis’s sentence, and the fact that his punishment is
unjustifiably lenient does not affect Sammie and LeVence’s
sentences in any event. As we held in United States v.
McMutuary, 217 F.3d 477 (7th Cir. 2000), an unjustified
disparity between sentences of codefendants should only be
considered as a factor for departure if it “actually creates a
disparity between the length of the [appellant defendant’s]
sentence and all other similar sentences imposed nation-
6 Nos. 02-3794, 02-3832 & 02-3901
wide.” Id. at 490. Neither Sammie nor LeVence has pre-
sented any evidence that that is the case here. Their sen-
tences are therefore proper, even though McGinnis’s is not.
The defendants’ final claims—that the judge erred in
disallowing inquiry into “the specifics of violations of
probation by certain Government witnesses” and in denying
the defense’s request for a multiple conspiracy instruc-
tion—are waived for lack of development in the appeal
briefs. United States v. Hook, 195 F.3d 299, 310 (7th Cir.
1999).
III. CONCLUSION
The convictions and sentences are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-24-03