United States v. Banks, Rickey E. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3176
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICKEY EARL BANKS,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 CR 182—Joan B. Gottschall, Judge.
____________
ARGUED SEPTEMBER 15, 2004—DECIDED APRIL 21, 2005
____________
Before FLAUM, Chief Judge, and COFFEY and KANNE,
Circuit Judges.
KANNE, Circuit Judge. In March 2002, a jury convicted
Rickey Earl Banks of possession with intent to distribute
cocaine in federal district court. Banks was sentenced to 97
months in prison pursuant to the Sentencing Guidelines. He
directly appeals the conviction on five different grounds. We
review the sentence sua sponte in light of the
Supreme Court’s recent decision on the constitutionality of
the Sentencing Guidelines. For the reasons stated herein,
2 No. 03-3176
we affirm the conviction and order a limited remand to the
district court to determine whether resentencing is war-
ranted.
I. History
On March 1, 1996, Joliet Police Officer James Reilly
received a tip from a confidential informant that a drug
transaction was going to occur that evening. The informant,
Johnny Banks, was the brother of Rickey Banks (“Banks”)
and had agreed to cooperate with the police in order to
improve his own bargaining position with respect to a
pending charge of cocaine possession. Johnny Banks
advised Reilly that “Rickey and the boys” planned to deliver
two to three kilograms of cocaine to Raymond Jackson at
2132 California Avenue (the home of Rickie Evans) between
9 and 10 P.M.1 Reilly and three other police officers set up
surveillance of the address in two different unmarked cars.
Shortly after 9 P.M., two vehicles arrived on the premises:
a car driven by Jackson, and a Jeep driven by Banks. The
occupants of the vehicles briefly met in the driveway. The
two vehicles then left the address, with Jackson driving the
car and Banks driving the Jeep. Rickie Evans, who had
been standing in the yard, joined Banks and his other
passenger, Michael Poston, in the Jeep. One unmarked
police car followed Jackson’s car and after a few minutes
attempted to stop it. Before Jackson pulled over, he ejected
a package from the window which the police recovered and
1
In voir dire, Johnny Banks testified that he gave the time and
the place of a drug transaction, that it was to take place between
Rickie Evans and Raymond Jackson, and that the time was to be
between 8:00 and 8:30 P.M.
No. 03-3176 3
suspected to be cocaine.2 The officers in this car radioed the
information about the suspected cocaine to the other
unmarked car, which had been following the Jeep. The
police then tried to stop the Jeep, which drove several
blocks before pulling over. Banks, Evans, and Poston were
arrested, and in a subsequent search of the Jeep a handgun
was found under the right rear passenger seat. After being
advised of his Miranda rights, Banks admitted that both
the Jeep and the gun belonged to him.
Later on March 1, Rickie Evans agreed to cooperate with
the police. Based on information received from Evans, a
search warrant for Darlene April’s apartment was obtained
and executed early on March 2. April is the mother of
Banks’s nephew, and Evans had gone with Banks to check
on the nephew on February 29. While the men were in the
apartment, Banks also “checked on” a kilo of cocaine that he
was storing in a kitchen light fixture. April allowed Banks
to store cocaine in her apartment so she could take some of
it for her personal use. The March 2 search led to the
discovery of over 800 grams of cocaine stored in the kitchen
light fixture. The bag in which the cocaine was stored bore
Banks’s fingerprint.
A grand jury indicted Banks on two counts of possession
with intent to distribute cocaine (one count for the 999
grams of cocaine ejected from Jackson’s car and one count
for the 870 grams of cocaine seized from April’s light fix-
ture). Attorney Harvey Bass represented Banks prior to his
trial. Bass filed a motion to quash arrest and suppress
evidence related to the prosecution, which was denied. The
day the trial was scheduled to begin, R. Eugene Pincham
began assisting Bass as defense counsel. The defense team
2
Subsequent laboratory testing showed that the package indeed
contained approximately 999 grams of powder cocaine.
4 No. 03-3176
orally renewed Banks’s motion to suppress evidence, and
after a hearing complete with witnesses and argument, the
motion was again denied.
During trial, Pincham conducted all witness examina-
tions, participated in sidebar conferences, and gave opening
statement and closing argument. After a nine-day trial, the
jury acquitted Banks of count one (the cocaine ejected from
Jackson’s car) and convicted him of count two (the cocaine
seized from April’s apartment).
The district court sentenced Banks under the federal
Sentencing Guidelines. His total offense level was 29: the
jury’s conviction led to a base offense level of 26, and the
judge added two two-point enhancements (for presence of a
firearm and obstruction of justice) before granting a one-
point reduction for post-offense rehabilitation. U.S.S.G.
§§ 2D1.1(a)(3), 2D1.1(c)(7), 2D1.1(b)(1), 3C1.1, 3E1.1(b).
Banks was placed in Criminal History Category II because
of his three prior convictions for battery, unlawful use of a
weapon, and harassment. As a result, Banks’s sentence was
97 months.
Banks filed his notice of appeal on August 15, 2003, ten
days after being sentenced. His opening appellate brief
indicated that he was challenging his conviction on several
grounds, including ineffective assistance of counsel with
respect to Attorney Bass.3 Approximately two weeks after
filing his opening brief, Banks filed a motion in the district
court to supplement the record with Attorney Registration
and Disciplinary Commission (“ARDC”) proceedings. The
district court granted this motion over the government’s
objection.
3
Attorneys Bass and Pincham, who represented Banks prior to
and during his trial, were replaced by three other attorneys in
succession during post-trial proceedings and sentencing. His two
current attorneys, then, are the sixth and seventh to represent
him in this case.
No. 03-3176 5
II. Analysis
At the outset, we note that the transcripts include many
open court musings of the district judge as she decided the
issues before her. In verbally weighing both sides of each
issue on the record, the judge obviously vocalized points
weighing in favor of Banks’s position on a number of oc-
casions. On appeal, Banks supports many of his arguments
with citations to these musings. We must review the de-
cisions of the district court in the same way as if they were
decisively made with no back and forth commentary: that
is, based on the applicable law and the evidence in the rec-
ord. That said, we will consider in turn each of the grounds
upon which Banks challenges his conviction and then
discuss the sentencing issue.
A. Prosecutorial Misconduct
Banks claims that he was deprived of his right to a fair
trial because of repeated prosecutorial misconduct. This
argument is not well founded; we do not find improper
conduct on the part of the Assistant United States Attorney
(“AUSA”) on any of the four bases discussed by Banks.
1. Brady material
In Brady v. Maryland, the Supreme Court held that an
AUSA’s failure to disclose favorable, material evidence to a
defendant violates due process. 373 U.S. 83, 87 (1963); Fed.
R. Crim. P. 16(a). “Evidence is ‘material’ if there is a ‘reason-
able probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.’ ” United States v. Bastanipour, 41 F.3d 1178, 1181
(7th Cir. 1994) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). The three elements of a Brady violation
are: (1) evidence favorable to the defendant because it is
exculpatory or impeaching; (2) suppression of such evidence
6 No. 03-3176
by the government; and (3) ensuing prejudice. See Strickler
v. Greene, 527 U.S. 263, 281-82 (1999). In this case, Banks
did not raise a Brady issue in the district court, so we
review for plain error. See United States v. Stott, 245 F.3d
890, 900 (7th Cir. 2001).
Banks’s Brady argument revolves around the confidential
informant (his brother, Johnny Banks) whose tip led to the
investigation and conviction at issue here. Banks claims
that the existence of the informant was not disclosed to him
until February 24, 2002, the day before his trial was to
begin, and that he therefore was unable to effectively
challenge probable cause for his arrest and Reilly’s credibil-
ity in obtaining the search warrant of April’s apartment.
Banks also takes issue with the fact that the identity of the
confidential informant was never revealed to him, again
claiming that he was unable to attack the veracity of the
officer (Reilly) preparing the affidavit for the search
warrant.
There is no Brady violation here. First of all, there is no
evidence of suppression: the record shows that Banks knew
a confidential informant existed well before trial. The
government’s written response in opposition to defendant’s
motion to quash arrest and suppress evidence, filed in
December 2001, states that “[o]n or about March 1, 1996,
law enforcement officers received information from a con-
fidential informant that Raymond Jackson, an individual
known to be involved in narcotics trafficking, was going to
pick up a quantity of cocaine at 2132 California, Lockport,
Illinois that evening between 9:00 and 10:00 p.m.” (R. 18 at 1-
2.)4 It is well established that the government may withhold
4
The government notes that, in addition to this written response,
a report containing reference to a confidential informant was
(continued...)
No. 03-3176 7
the identity of a confidential informant in furtherance of the
public interest in law enforcement unless the identity is
relevant or helpful to the defense or essential to a fair
determination of cause. See Roviaro v. United States, 353
U.S. 53, 59-61 (1957). Banks knew an informant existed and
could have litigated the issue of whether he was entitled to
learn the informant’s identity.
Even without knowledge of the existence or identity of the
informant, Banks would not have been prejudiced. He was
able to discern the identity of the informant based on the
police testimony given in the first suppression hearing, and,
because the district court reopened the hearing on Banks’s
motion to suppress, he was able to examine Johnny Banks.
On the issue of probable cause to arrest, Johnny Banks
actually corroborated Reilly’s testimony. He admitted to
tipping off the police about the drug deal and provided no
exculpatory or impeaching evidence. Regarding the search
of April’s apartment, as Banks’s trial counsel correctly
stated on the record, Banks had “no standing to make a
motion to suppress as to what somebody else had.” (Tr. at
180.) See Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“A
person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured
by a search of a third person’s premises or property has not
had any of his Fourth Amendment rights infringed.”). There
is no probability that, had the AUSA disclosed the existence
and identity of the confidential informant, Banks’s trial
would have ended in a different result.
4
(...continued)
given to the defense in April 2001, and that information regarding
the informant was discussed with defense counsel orally prior to
that. (2/25/02 Tr. at 18-19.)
8 No. 03-3176
2. Evans’s testimony
In her examination of Rickie Evans at trial, the AUSA
elicited testimony regarding the bond hearing at which
Evans, Banks, and Poston were all present:
Q: What happened at the bond hearing?
A: The Judge asked us whose gun it was that they
found in the Jeep.
Q: The Judge asked you?
A: Yes.
Q: And did you answer?
A: No, every—we was waiting on—well, I was waiting
on Mr. Banks to answer.
Q: And did he answer?
A: It took a while.
Q: Did he answer?
A: Eventually, yes.
Q: What did he say?
A: He said it was his.
(Tr. at 1359.) Banks did not object to the testimony on this
subject, but at the end of the direct examination moved for
a mistrial on the ground that the judge at the bond hearing
asked Banks about the gun without a Miranda warning.
Banks now alleges that the AUSA purposely elicited this
testimony in violation of his constitutional rights, and that
his conviction should be reversed because the alleged
misconduct deprived him of a fair trial. See generally United
States v. Badger, 983 F.2d 1443, 1450 (7th Cir. 1993).
No. 03-3176 9
The district court struck the evidence but denied Banks’s
motion for a mistrial.5 We agree with the district court that
there was nothing wrong with the AUSA’s questions, but
that the evidence (Evans’s answers) presented the potential
problem. (See Tr. at 1416.) Finding no prosecutorial miscon-
duct with regard to Evans’s questioning, we review the
court’s decision to strike the challenged evidence and deny
the motion for mistrial for abuse of discretion. United States
v. Smith, 308 F.3d 726, 739-40 (7th Cir. 2002).
The challenged evidence being presented to the jury does
not constitute the type of prejudice to Banks that would
warrant a mistrial. Jurors are presumed to follow limiting
and curative instructions except in unusual cases where the
evidence improperly before them is “so powerfully incrimi-
nating that they cannot reasonably be expected to put it out
of their minds.” Id. at 739. Even if the jury did consider this
allegedly improper admission (or if the judge had not had it
stricken), the error would have been harmless: the evidence
relating to Banks’s ownership of the gun was cumulative, as
Banks’s own admission to police after his arrest and
Miranda warning that the gun was his was admissible. We
also note that Banks was actually acquitted of the count
most closely related to the gun and the drugs ejected from
Jackson’s car. There was no abuse of discretion in denying
a mistrial based on Evans’s testimony.
3. improper impeachment
Banks argues another instance of prosecutorial miscon-
duct with respect to the government’s attempted impeach-
5
Although it did not contest striking the evidence at trial, the
government does not concede that the evidence in question was
unconstitutional. It is not clear from the record whether Banks
was represented by counsel at the bond hearing or whether the
judge in that proceeding issued a proper Miranda warning.
10 No. 03-3176
ment of him with statements he allegedly made to Darlene
April. During cross-examination, the government asked
Banks whether he had admitted to April that the gun found
in the Jeep was his, to which he replied that he had not.
The government did not recall April in its rebuttal to
perfect impeachment. Although Banks now asserts that an
AUSA has a duty to complete impeachment when a witness
denies making a prior inconsistent statement, the defense
did not object to the failure of the government to recall
April at trial. As a result, we review for plain error. See
United States v. Jungles, 903 F.2d 468, 478 (7th Cir. 1990).
Banks cites United States v. Mackey, 571 F.2d 376 (7th
Cir. 1978), for the proposition that the government was
duty-bound to perfect the impeachment of Banks by re-
calling April. It is true that “[i]t is improper conduct for the
Government to ask a question which implies a factual
predicate which the examiner knows he cannot support by
evidence or for which he has no reason to believe that there
is a foundation of truth.” United States v. Harris, 542 F.2d
1283, 1307 (7th Cir. 1976). Neither Mackey nor Jungles,
however, mandates a duty to perfect impeachment. See
Mackey, 571 F.2d at 386 (expressing reservation that there
is ever a duty to complete an impeachment); Jungles, 903
F.2d at 478 (“[T]he government does not have a duty in
every case to introduce the factual predicate for a poten-
tially prejudicial question posed on cross-examination.”).
The AUSA in this case might have had reason to believe
that Banks had told April that the gun was his. In any case,
the failure to perfect Banks’s impeachment was harmless
and could not constitute plain error, which may be found
only when the exclusion of the evidence probably would
have resulted in an acquittal. United States v. Krankel, 164
F.3d 1046, 1052 (7th Cir. 1998). As discussed above, any
evidence of Banks’s ownership of the gun was cumulative,
as his admission to the arresting officer was clearly admis-
No. 03-3176 11
sible. Moreover, the district judge advised the jury that
“questions and objections by the lawyers are not evidence.”
(Tr. at 1998.)
4. closing remarks
Finally, Banks contends that the AUSA, in her closing
argument, argued facts not in evidence linking Banks to the
cocaine found in April’s apartment. Because Banks did not
object to the government’s closing argument in the district
court, we review for plain error. See United States v.
Sandoval, 347 F.3d 627, 631 (7th Cir. 2003).
The statements in the closing argument with which
Banks takes issue were not improper. The AUSA stated
that Banks admitted to both Evans and April that the
cocaine was his, and the record supports this statement.
Evans testified that when he and Banks were at April’s
apartment prior to their arrest, Banks said he had to “check
on something,” proceeded to pull the cocaine down from the
light fixture, and said, “Darlene would be dipping.” (Tr. at
1346-47.) April testified that she spoke with Banks after the
cocaine had been seized from her apartment and that Banks
complained of not knowing who told the police about “[h]is
drugs being in [April’s] house.” (Tr. at 1128.) It is a reason-
able inference that Banks’s words and conduct, reflected in
this testimony, constituted admissions that he was the
owner of the cocaine stored in April’s apartment. Because
the AUSA’s statements were proper, there is no plain error
in the closing argument.
We do not find prosecutorial misconduct in this case.
Even if the AUSA had acted improperly in any of the situ-
ations Banks challenges—in the disclosure of the informant,
testimony elicited from Evans, impeachment of Banks, and
closing remarks—Banks’s conviction would not rightly be
reversed based on deprivation of a fair trial. See Badger,
983 F.2d at 1453-54. The informant’s testimony was not
12 No. 03-3176
favorable to Banks, the testimony and questions linking
Banks to the gun found in his Jeep were cumulative, and
the AUSA’s closing remarks were supported by evidence in
the record.
B. Ineffective Assistance of Counsel
Before evaluating Attorney Bass’s representation under
Strickland v. Washington, 466 U.S. 668 (1984), we must
decide whether the ARDC materials in the supplemental
record are properly before this court.6 The district court
allowed these materials to be added to the record on April
21, 2004, despite some apparent reservations that, because
the ineffective assistance claim “appears to be limited to
counsel’s performance at trial rather than obviously ex-
trinsic matters,” it “could arguably be resolved based only
on a review of the trial record.” (R. 105.)
Rule 10(e) allows for correction or modification of the rec-
ord “[i]f any difference arises about whether the record truly
discloses what occurred in the district court[.]” Fed. R. App.
P. 10(e)(1). “[T]he difference must be submitted to and
settled by [the district] court and the record conformed
accordingly.” Id. This rule is meant to ensure that the
record reflects what really happened in the district court,
but “not to enable the losing party to add new material to
the record in order to collaterally attack the trial court’s
judgment.” United States v. Elizalde-Adame, 262 F.3d 637,
6
The materials include: (a) a May 1998 petition to impose
discipline on consent for conversion of client funds that occurred
in 1993; (b) an August 2002 ARDC complaint alleging neglect and
deceit with respect to client matters, deception in the lease and
purchase of three cars, and failure to cooperate with the ARDC;
(c) a 2003 petition and order of guardianship; (d) a 2003 psychiat-
ric summary; and (e) a 2003 order granting Bass’s motion for
transfer to inactive disability status.
No. 03-3176 13
641 (7th Cir. 2001). In this case, Bass’s ARDC proceedings
were neither relied upon by the district court nor relevant
to its decisions; they cannot be added to the record pursuant
to Rule 10(e).
Case law does not help Banks’s argument to supplement
the record any more than the rules of appellate procedure
do. We have repeatedly stated that extrinsic evidence may
not properly be introduced in connection with an ineffective
assistance claim on direct appeal. See, e.g., Galbraith v.
United States, 313 F.3d 1001, 1007-08 (7th Cir. 2002) (“A
reviewing court on direct appeal is limited to the record of
trial and cannot consider any extrinsic evidence that may
be necessary to support the ineffective counsel claim.”);
United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991)
(“[T]he defendant can in his direct appeal . . . ask the court
of appeals to hold that the unadorned trial record demon-
strates that he was denied his right to effective assistance
of counsel; such a challenge is necessarily limited to the
trial record, since a court of appeals does not take evi-
dence.”) (citations omitted). Where the district court has
erroneously granted a motion to supplement the record with
evidence that it has not relied upon, we have refused to
consider it. See United States v. Noble, 299 F.3d 907, 911
(7th Cir. 2002) (declining to consider evidence added to the
record in response to the government’s motion to supple-
ment the appellate record after the appeal was filed).
We therefore evaluate Bass’s representation of Banks in
the court below based only on the unsupplemented record.
Banks points to three errors made by Bass: his failure to
demand discovery of the confidential informant, his failure
to prosecute a motion to suppress evidence, and his failure
to move for a new trial. Under Strickland, Banks must
show both that his attorney’s performance was outside the
range of professionally competent assistance and that the
deficient performance denied him a fair trial. See 466 U.S.
at 687-88, 694. We reverse “only when it has been shown
14 No. 03-3176
with a reasonable probability that, but for counsel’s un-
professional errors, the result of the proceeding would have
been different.” Lowery v. Anderson, 225 F.3d 833, 843 (7th
Cir. 2000) (citation omitted).
There is a strong presumption for finding counsel effec-
tive, and Banks bears the burden of proving otherwise. See
United Sates v. Pergler, 233 F.3d 1005, 1008-09 (7th Cir.
2000). In cases such as this, where counsel has succeeded in
having his client acquitted of at least one of the charges
brought, the presumption is likely to be even more difficult
to rebut. Because it is easier to dispose of this ineffective-
ness claim on the ground of lack of sufficient prejudice,
though, we will follow that course. See Strickland, 466 U.S.
at 697.
Bass’s initial failure to demand information regarding the
identity of the confidential informant was immaterial
because, as we have already discussed, Banks was able to
examine the informant before trial and, in the end, the
informant corroborated the government witness’s testimony
and was not helpful to Banks. Likewise, any errors Bass
made with respect to his motion to suppress (including
failure to file a memorandum in support of that motion) did
not result in prejudice; the district judge reopened the sup-
pression issue and denied the motion after a full hearing
with argument and witnesses in which both Bass and
Pincham represented Banks. Banks was not entitled to
suppression of any evidence, so nothing his counsel could
have done with respect to this motion could have resulted
in prejudice.
Finally, we consider Bass’s failure to timely move for a
new trial. At a hearing on the government’s motion to re-
voke bond, the district judge found that there was a sub-
stantial likelihood that a new trial motion would be
No. 03-3176 15
granted.7 Banks claims that this statement satisfies the
prejudice prong of Strickland.
We do not agree that the district judge’s comments in the
bond hearing are sufficient to establish a reasonable prob-
ability that, had Bass made a timely motion for a new trial,
Banks would have obtained a different result. None of the
grounds on which Banks challenges his conviction in this
appeal have merit, and the basis on which the judge made
her finding is unclear. The judge also made post-trial
comments that cut against Banks’s position that a new trial
would have been granted; at sentencing, for example, she
overruled Banks’s objections to an enhancement for the gun
and indicated that there was no merit to the allegations of
arrest without probable cause. We do not find prejudice
based on a judge’s out-of-context comment but rather look
at the substantive record as a whole. Finding nothing
warranting a new trial, we do not believe that Banks was
prejudiced by his counsel’s failure to file the motion.
By making this claim on direct appeal, Banks has waived
the right to raise an ineffective assistance claim in a col-
lateral attack under 28 U.S.C. § 2255. At oral argument,
Banks’s counsel indicated that he wished to pursue the inef-
fective assistance claim in this appeal regardless of whether
the ARDC materials were considered, knowing that this
course of action precluded him from raising the issue of
Bass’s representation again in a future appeal.
C. Insufficient Evidence
Banks’s claim that the government produced insufficient
evidence of cocaine possession with intent to distribute is
without merit. Because he did not renew his motion for a
7
Such a finding was necessary to avoid taking Banks into
immediate custody under 18 U.S.C. § 3143.
16 No. 03-3176
judgment of acquittal at the close of all the evidence or
within seven days of the verdict, Banks is entitled to rever-
sal based on insufficient evidence only if he demonstrates
a “manifest miscarriage of justice.” See United States v.
Taylor, 226 F.3d 593, 596 (7th Cir. 2000). Banks now folds
this claim into his ineffective assistance claim, asserting
that his counsel’s incompetence is to blame for its forfeiture
and that reversal is warranted if, viewing the evidence in
the light most favorable to the government, no rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. See United States v. Pritchard,
745 F.2d 1112, 1122 (7th Cir. 1984) (setting out insufficient
evidence standard when claim has not been forfeited). The
evidence in this case is sufficient to withstand scrutiny
under either standard.
The three elements necessary for conviction under 21
U.S.C. § 841 are (1) knowing or intentional possession of
cocaine, (2) possession of cocaine with the intent to distri-
bute it, and (3) knowledge that the material is a controlled
substance. United States v. Kitchen, 57 F.3d 516, 521 (7th
Cir. 1995). At issue here is the first element. Banks says
that the only evidence linking him to the cocaine found in
April’s apartment was one fingerprint, and that this is
inadequate for conviction. See United States v. Beverly, 750
F.2d 34, 37 (6th Cir. 1984) (fingerprint on gun in wastebas-
ket near where defendant was standing but in someone
else’s apartment insufficient to prove constructive posses-
sion); United States v. Chesher, 678 F.2d 1353, 1358 (9th
Cir. 1982) (fingerprint on methamphetamine manufacturing
equipment and access to equipment insufficient to prove
possession). But cf. United States v. Wilson, 922 F.2d 1336,
1338-39 (7th Cir. 1991) (fingerprint on gun found at defen-
dant’s girlfriend’s apartment sufficient to prove possession).
We can set aside the question of whether the fingerprint
alone is sufficient evidence of possession, because Banks’s
No. 03-3176 17
account of the government’s evidence leaves out testimony
from two important witnesses. Evans testified that Banks
had gone to April’s apartment and checked on the cocaine
to see if April had been “dipping in it,” revealing Banks’s
control over and interest in the cocaine. Furthermore, April
testified that she allowed Banks to store cocaine in her
apartment. Clearly, this testimony (along with the finger-
print) constitutes evidence more than sufficient for a
reasonable jury to find that Banks was in constructive
possession of the cocaine in April’s apartment.
D. Probable Cause for Arrest
Banks next argues that the district court erred in denying
his motion to suppress evidence, claiming that the police
lacked probable cause to arrest him and that his arrest thus
violated the Fourth Amendment. Banks makes this claim
based on allegedly inconsistent testimony from the police
officers involved in his arrest and the search of April’s
apartment. When evaluating a district court’s ruling on a
motion to suppress, we review questions of law de novo and
findings of fact for clear error. United States v. Yang, 286
F.3d 940, 944 (7th Cir. 2002).
It is well settled that probable cause can be established by
an informant’s tip along with corroboration by police work.
See, e.g., Illinois v. Gates, 462 U.S. 213, 241-45 (1983);
United States v. McClinton, 135 F.3d 1178, 1183-84 (7th
Cir. 1998). In this case, the confidential informant’s testi-
mony plus Banks’s own admissions are enough to establish
probable cause based on the tip-plus-corroboration formula.
Johnny Banks testified that he informed Reilly that a drug
deal was going to take place at 2132 California Avenue on
the evening of March 1. The police set up surveillance based
on this information. Banks admits that, on that evening, he
arrived at the California Avenue address and met briefly
18 No. 03-3176
with Jackson in the driveway before all four men involved
left the residence. Banks concedes that Jackson ejected
cocaine from his car after leaving the premises and never
questioned that the officers who arrested him were aware
of that fact. All of this corroborates the tip from Johnny
Banks and suggests that a drug transaction did occur. We
affirm the district court’s determination of probable cause
for Banks’s arrest, and need not go into any discrepancies
in police testimony.
E. District Court Errors
Finally, Banks claims that he was denied a fair trial due
to cumulative errors of the district court. District court er-
rors must be considered in the aggregate on appeal; while
individual errors might be considered harmless, there are
some cases in which the cumulative harm done is no longer
insignificant. United States v. Santos, 201 F.3d 953, 965
(7th Cir. 2000). This, however, is not such a case. We find
no error in most of the decisions with which Banks takes
issue. The error that might have been made with respect to
a dog alert was clearly harmless; corrective jury instruc-
tions were given, and Banks was ultimately acquitted of the
charge related to the cocaine ejected from Jackson’s car,
which was the only charge to which the dog sniff would
have been relevant.
1. evidence of prior drug activities
The district court allowed testimony from April about
Banks’s history of storing cocaine in her apartment to be
admitted. Banks argues that this was an impermissible use
of character evidence. See Fed. R. Evid. 404(b) (prohibiting
evidence of other crimes, wrongs, or acts from being used to
prove the character of a person in order to show action in
conformity therewith). We review the district court’s
No. 03-3176 19
evidentiary rulings for abuse of discretion. United States v.
Rangel, 350 F.3d 648, 650 (7th Cir. 2003).
The government elicited the testimony regarding Banks’s
prior practice of storing cocaine in her apartment on re-
direct examination, after the defense questioned April about
where she obtained all of the cocaine she used. We agree
with the district judge that the cross-examination opened
the door for testimony on the cocaine Banks had stored in
her apartment prior to this incident. Rather than being
impermissible character evidence, the testimony was
properly admitted as evidence to show that Banks had op-
portunity, knowledge, and intent to store drugs in April’s
apartment. See Fed. R. Evid. 404(b). All four prongs of the
test for admissibility set forth in United States v.
Anifowoshe are met: (1) the evidence is directed to April’s
reason for believing the cocaine seized belonged to Banks
and absence of mistake rather than to his propensity to
commit the crime; (2) Banks’s use of April’s apartment for
cocaine storage occurred within five years of the charged
offense, making it close enough in time to be relevant; (3)
April’s testimony was corroborated by Evans and by
Banks’s fingerprint, making it sufficient to support a jury
finding that Banks committed a similar act; and (4) the
evidence was highly probative of the central issues of
whether Banks intentionally and knowingly possessed the
cocaine in April’s apartment and was not unfairly prejudi-
cial. See 307 F.3d 643, 646 (7th Cir. 2002).
2. gun evidence
The district court allowed the government to introduce
evidence of the gun found in Banks’s Jeep the night of his
arrest. After a proper Miranda warning, Banks admitted to
the arresting officer that he owned the gun. Banks now
argues that the district court erred in admitting evidence of
the gun because it was unfairly prejudicial and its probative
value was outweighed by the prejudice. See Fed. R. Evid.
20 No. 03-3176
403. Again, we review the district court’s ruling on ad-
missibility for abuse of discretion. See Rangel, 350 F.3d at
650.
This court has often said that guns are “tools of the trade”
for drug dealing. See, e.g., United States v. Wyatt, 102 F.3d
241, 248 (7th Cir. 1996). It seems obvious, then, that the
gun found in Banks’s Jeep immediately after he met with
Jackson would be relevant to the question of whether Banks
had sold Jackson the cocaine ejected from his (Jackson’s)
car as charged. Banks argues that the gun evidence was
unfairly prejudicial, and that the district judge’s comment
that “[the gun evidence] is tremendously prejudicial” shows
she did not know she had the discretion to exclude evidence
of the gun. (Tr. at 1421.) We think it much more likely that
the district court judge understood the rules of evidence and
admitted the gun evidence because, although it was unques-
tionably prejudicial, it was not so unfairly prejudicial as to
substantially outweigh its probative value. Admitting
evidence of the gun was not an abuse of discretion.
3. dog alert
In its rebuttal, the government offered evidence that
Banks’s Jeep was inspected by a narcotics-trained dog and
that the dog alerted to the driver’s seat of the vehicle. The
district court conducted a hearing and voir dire of the dog’s
handler, and initially allowed the evidence to be presented
to the jury. After the dog handler’s testimony, though, and
after court had been adjourned for a weekend, the district
court decided to strike the evidence. Banks claims that the
district court’s error of allowing the evidence to be pre-
sented prejudiced him, and that the subsequent jury in-
structions to disregard the dog handler’s testimony were
insufficient.
Banks offers nothing to show how the weekend lapse
between the introduction of the dog alert evidence and the
No. 03-3176 21
instructions to disregard that evidence was prejudicial to
him. We find it implausible that the jury considered this
testimony in convicting Banks of possessing the cocaine
found in April’s apartment. On the contrary, it appears that
the jury was able to put the testimony out of their minds,
since they acquitted Banks of the charge of selling cocaine
to Jackson the night of the dog inspection. See Smith, 308
F.3d at 739-740.
F. Sentencing
The Supreme Court’s decision in United States v. Booker,
125 S. Ct. 738 (2005), significantly changed sentencing in
federal courts. The Court held that, in order to comply with
the Sixth Amendment, “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence ex-
ceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”
Id. at 756. As a remedy, the Court severed the statutory
provisions making the Guidelines mandatory and gave
district courts the discretion to sentence outside the
Guideline range so long as the sentence is “reasonable.” Id.
at 764, 765-66.
Banks was sentenced to 97 months of imprisonment. The
sentence he would have received based purely on the jury’s
conviction would have been 70-87 months. The district
court’s sentencing findings of the presence of a firearm and
obstruction of justice, made by the preponderance of the
evidence standard, led to enhancements that mandated the
higher sentence. Thus, under Booker, the sentence was
imposed in violation of the Sixth Amendment.
Banks did not argue that the Guidelines were unconstitu-
tional in the district court, so we review his sentence for
plain error. Id. at 769. Under this standard, we may exer-
cise our discretion to correct error if it is plain, it affects
22 No. 03-3176
substantial rights, and it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997). The last
prong of this test is “usually equated to causing a ‘miscar-
riage of justice.’ ”United States v. Paladino, 401 F.3d 471, 481
(7th Cir. 2005) (citing United States v. Frady, 456 U.S. 152,
163 n.14 (1982)). We stated in Paladino that a miscarriage
of justice occurs if a sentencing judge, in having thought
herself bound by the Guidelines, imposes a longer sentence
than she would have if she had thought herself able to
exercise discretion. See id. at 483. If, however, the sen-
tencing judge would have imposed the same sentence re-
gardless of whether or not the Guidelines were mandatory,
the defendant would not suffer prejudice by being sentenced
under the mandatory Guideline regime and his sentence
would be affirmed provided that it is reasonable. Id. at 484.
We therefore retain jurisdiction over this case and order
a limited remand to the district court to determine whether
the sentencing judge, were she required to resentence,
would reimpose the same 97-month sentence that Banks
originally received. See id. Only if she would not will we
vacate Banks’s sentence and remand for resentencing in
accord with Booker. See id.
III. Conclusion
Based on the reasoning above, we AFFIRM Banks’s
conviction as to count two. We REMAND to the district court
for the limited purpose of determining whether vacatur of
Banks’s original sentence is necessary so that he may be
resentenced in accordance with Booker.
No. 03-3176 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-21-05