United States v. Douglas, Edward M. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2566
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD M. DOUGLAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 CR 20040—Michael P. McCuskey, Chief Judge.
____________
ARGUED JANUARY 6, 2005—DECIDED MAY 25, 2005
____________
Before MANION, WOOD, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Edward Douglas was monitored
selling a quantity of drugs to a cooperating government
informant. A jury convicted him of distributing cocaine base
(crack) in violation of 21 U.S.C. § 841(a)(1). The district court
determined that Douglas was a career offender and imposed
the sentence of mandatory life in prison. On appeal Douglas
challenges two evidentiary rulings and his sentence. We
affirm.
2 No. 03-2566
I.
Douglas’s conviction stems from his sale, on two occa-
sions, of crack to Carl Williams, a government informant.
Following his arrest on a state drug charge in July 2000,
Williams served as an informant for the Kankakee Area
Metropolitan Enforcement Group (“KAMEG”), a multi-
jurisdictional drug task force in Kankakee County, Illinois.
In return for sentencing consideration, Williams agreed to
cooperate with KAMEG.
Williams informed KAMEG agents that he could purchase
crack from Douglas, and the agents monitored a series of
telephone conversations between Williams and Douglas.
During these conversations, Williams and Douglas dis-
cussed the price for different amounts of crack and finally
agreed to the sale of an ounce. These telephone conversa-
tions were recorded.
The date arranged for the first sale was April 30, 2001.
Immediately prior to the sale, two KAMEG agents, Scott
Monferdini and Bill Backus, met with Williams and fitted
him with a “wire” so that they could monitor his conversa-
tion with Douglas. Before sending Williams to the sale, the
agents also thoroughly searched him and his car and found
no drugs or money. The agents then provided Williams
with $750 to purchase the crack.
Williams drove to the sale location, a restaurant parking
lot, followed by the two agents, who maintained constant
visual surveillance of him. The agents also observed the en-
tire transaction. The agents observed Williams and Douglas
briefly sitting in Douglas’s car and before Williams got out
and retrieved a Tylenol bottle from the trunk. The entire sale
was recorded on video.
After the sale, the agents followed Williams to a pre-ar-
ranged meeting place where Williams handed the agents the
No. 03-2566 3
bottle which contained 27.8 grams of crack. The agents
again searched Williams and his car and found no drugs or
money.
The second sale took place in much the same fashion.
Williams called Douglas to arrange a sale of four and one-
half ounces of crack. Monferdini and Backus again searched
Williams and his car prior to the sale for drugs and money.
Williams was again outfitted with a wire. The sale took
place in the same parking lot on May 18, 2001. Williams was
followed to the sale location and the entire sale was re-
corded on video. The serial numbers on the cash ($2,750)
used for the sale were recorded.
After the sale was completed, Williams was followed by
Backus to a prearranged location. Williams turned over two
cans containing 113.8 grams of crack. Backus again searched
Williams and his car and found no money or drugs.
At the same time, other KAMEG agents continued to
watch Douglas as he left the restaurant and drove to a
nearby store. When Backus’s meeting with Williams was
completed, the agents arrested Douglas. The $2,750 used for
the sale was found in Douglas’s possession.
Douglas was questioned about the sale and, when con-
fronted with the audio and video recordings of the sale, ad-
mitted to selling crack to Williams. Douglas told the agents
he obtained the crack from two people and that the drugs
had been packaged in the Tylenol bottle and cans when he
received the drugs from these sources. Douglas also told the
agents that he, too, would like to cooperate with the agents
in return for consideration of his charges.
Douglas apparently later decided against cooperating
with the government and in May 2003, a federal grand jury
returned a two-count indictment charging him with dis-
tributing crack in violation of 21 U.S.C. § 841(a)(1). The first
4 No. 03-2566
count charged Douglas with distributing more than five
grams of crack, and the second count charged him with
distributing more than 50 grams of crack.
In January 2003, more than a month before trial, the
United States informed the district court and defense
counsel that it did not intend to call Williams as a witness at
trial. In response, Douglas’s counsel informed the court and
the government that he intended to call Williams as a
witness. Concerned that Douglas sought to call Williams for
improper reasons, the government filed a motion in limine
and requested a hearing to determine the contours and rel-
evancy of Williams’s testimony.
At the hearing, Williams testified as to his recollection
of the drug sales, as well as his own criminal history. Spe-
cifically, in 1994, Williams had been arrested on drug
charges along with Douglas’s grandfather. After his arrest,
Williams was released on bond and fled to avoid prosecu-
tion. He spent the next six years as a fugitive. During this
time (and apparently at the time of his 1994 arrest, as well)
Williams used a series of aliases supported by false driver’s
licenses and identification cards he had obtained from
someone in the Illinois Secretary of State’s Office.
Williams was arrested on a warrant in 2000. Following his
arrest he began to cooperate with KAMEG in hopes of sen-
tencing consideration for the 1994 charges. As a result of the
arrest of Douglas, Williams’s charges were reduced and he
was sentenced to a conditional discharge. He served only a
few days in jail. At the time of the hearing, Williams was in
jail, however, for another reason—he had been indicted for
bank fraud in the Northern District of Illinois.
Douglas argued that he should be able to call Williams
to the stand and impeach his credibility with his criminal
history. The district court disagreed and granted the gov-
No. 03-2566 5
ernment’s motion in limine. The district court ruled that
Williams’s credibility was not at issue and that, therefore,
his criminal history was irrelevant. The court also held, how-
ever, that Douglas could call Williams as a transactional
witness and could impeach his credibility with prior in-
consistent statements concerning the circumstances of the
sales.
The case then proceeded to trial. The government’s case
consisted of the testimony of Monferdini and Backus sup-
ported by, among other evidence, audio recordings of calls
between Williams and Douglas and the sale, video record-
ings of the sale, the $2,750 recovered from Douglas on his
arrest, and the drugs Williams turned over to Monferdini
and Backus.
Douglas called two witnesses, Williams and Douglas’s
girlfriend, and also took the stand in his own defense. On
direct examination, Douglas testified that he did, in fact,
meet with Williams on April 30 and May 18, and that he
took money from Williams. Douglas insisted, however, that
he did not deliver drugs to Williams on those dates. Instead,
Douglas claimed he took money from Williams for a
promise to later supply Williams with drugs—a promise
Douglas did not intend to keep. Douglas testified that he
intended to swindle Williams because he bore resentment
towards Williams over the arrest of his grandfather who
had died in prison.
Douglas also denied that he confessed to selling Williams
drugs. He admitted to asking the agents if he could serve as
an informant but said he did so because he was intimidated
after his arrest and the grilling by KAMEG agents. Douglas
claimed that he had “never been through nothing like that”
before.
At the conclusion of his direct examination, the govern-
ment argued to the district court that Douglas’s statement
6 No. 03-2566
that he had “never been through nothing like that” opened
the door to inquiry about his prior drug convictions. The
district court agreed and permitted the government to in-
quire into Douglas’s 1989 and 1993 convictions. At the close
of the case, the district court instructed the jury that these
convictions could be considered only in assessing Douglas’s
credibility.
The jury found Douglas guilty on both counts of the
indictment. Because Douglas had two previous felony drug
convictions, and because of the quantity of the drugs in-
volved in the transactions, Douglas was subject to, and ac-
cordingly sentenced to, mandatory life imprisonment. 21
U.S.C. § 841(b)(1)(A)(iii). This appeal followed.
II.
Douglas raises three issues on appeal. First, he argues that
the district court erred when it limited his ability to “cross-
examine” a “government witness,” namely Williams. Second,
Douglas argues that the district court erred when it permit-
ted the government to inquire into his previous drug
convictions. Third, Douglas argues that the imposition of
mandatory life imprisonment because of two previous drug
convictions was unconstitutional in light of the Supreme
Court’s recent decisions concerning sentencing. We address
each argument in turn.
A. Williams’s Testimony
Douglas first argues that the district court’s ruling con-
cerning the limits of his examination of Williams prevented
him from establishing his theory of defense. Douglas sought
to suggest that Williams actually brought the crack with him
to the two sales and that he intended to frame Douglas by
No. 03-2566 7
claiming that he received the drugs from Douglas. Douglas
argues that he should have been able to inquire into Wil-
liams’s criminal history and impeach Williams’s credibility.
In his briefs, Douglas characterizes the issue at hand as
interference with his right to “cross-examine” Williams,
whom he describes as a “government witness.” But Douglas
was not limited in cross-examining Williams. Williams was
not a government witness. Williams was Douglas’s witness.
The district court limited Douglas’s direct examination of
Williams by refusing to allow Douglas to impeach William’s
credibility through references to Williams’s criminal history.
Douglas argues that his constitutional rights were violated
by the district court’s decision. Where appropriate, a party
is free to impeach the credibility of his own witness, see
Fed. R. Evid. § 607 (“The credibility of a witness may be
attacked by any party, including the party calling the wit-
ness.”) (emphasis added). However, where such testimony
is irrelevant, a party may properly be prevented from
eliciting the testimony. That is the foundation of the rules of
evidence. Fed. R. Evid. § 402.
The so-called impeachment evidence was not relevant. The
government announced it did not intend to call Williams
and, from the government’s point of view, Williams was not
an essential witness—every element of the factual narrative
necessary to convince the jury of Douglas’s guilt could be
offered without Williams’s testimony. Backus and
Monferdini testified that they searched Williams and found
no drugs on him or in his car. Then they followed him to the
scene of his meeting with Douglas. They maintained visual
contact with Williams from the time of the search through
the sale and until at least one of them met up with Williams
again and Williams handed over drugs. Assuming the jury
believed Monferdini and Backus, their testimony was
8 No. 03-2566
enough to secure a conviction. Given that Douglas was the
only person Williams met with between the time he was
searched and the time he returned from the sale, a rational
jury surely could infer that the Douglas was the source of
the drugs Williams handed over after the sale.
Williams’s credibility was not at issue. Because Monferdini
and Backus claimed they kept visual contact with Williams
from start to finish, the government’s case rested on their
credibility (supported by audio and visual recordings of the
sales). Consequently, any evidence introduced to impeach
Williams’s credibility would be irrelevant and inadmissible.
United States v. Silva, 71 F.3d 667, 670-71 (7th Cir. 1995). A
party is not free to impeach the credibility of a witness
simply for the sake of doing so. The district court did not
err, therefore, in limiting Douglas’s examination of Wil-
liams.
Douglas also argues that even if the limitation was ap-
propriate initially, the government “opened the door” to a
full “cross-examination” of Williams as a result of a ques-
tion by the government to Monferdini and his response
thereto. Specifically, Douglas cites the following exchange:
Q: And have you reviewed Government Exhibit 4 [the
audio recording of the April 30 sale]?
Q: —on April 30?
A: Yes.
Q: And is it an accurate recording of what took place
while Mr. Williams was wearing that recording
device?
A: Yes.
Q: Is there anything significant in listening to that
recording—was there anything significant that you
noticed while listening to it?
No. 03-2566 9
A: Just I think at the end Mr. Williams asked Mr. Douglas
if it was, if was good stuff and if there’s a money-back
guarantee.
Q: Are there portions that are inaudible?
A: Yes.
Q: And are there—does the remainder of that tape re-
flect a conversation that does not appear to relate to
a drug transaction, just general conversation?
A: Yes. Most of it’s general conversation.
Appellee Br. 21-22 (emphasis added).
Douglas argues that Monferdini’s recitation of Williams’s
question to Douglas was the equivalent of Williams testi-
fying that he asked that question. Accordingly, Douglas
argues, he then should have been able to fully cross-ex-
amine Williams as to his criminal history.
Douglas’s argument on this point has no merit.
Monferdini’s statement did not put Williams’s credibility at
issue. The jury was told of the limited value of Williams’s
statements on the audio recordings. The district court
instructed the jury twice (at the time of the audio record-
ing’s introduction into evidence and following Monferdini’s
testimony on direct) that Williams’s statements or questions
on the recordings were hearsay and could not be considered
for the truth of the matter asserted. The district court did not
err in refusing to lift its limits on Douglas’s inquiry into
Williams’s past.
B. Douglas’s Testimony
Douglas’s conviction in this case was not his first felony
conviction. Douglas had previously been convicted in
Illinois courts for possession of drugs in 1989 and 1993. In
10 No. 03-2566
both cases, he received probation. Prior to trial, Douglas
sought to prevent the government from eliciting informa-
tion concerning these previous convictions for the purpose
of impeaching Douglas. The district court ruled that the
government could not make mention of the 1989 convic-
tion—it fell outside the ten-year time period set forth in
Federal Rule of Evidence 609(b). The district court ruled that
the government could use the fact of Douglas’s 1993
conviction but could not mention the name or nature of the
conviction. The district court specifically cautioned Douglas
that he might “open the door” and permit the government
to explore “the nature of both of his prior convictions if,
for example, he testifies in a manner suggesting lack of
knowledge of controlled substances. . . .”
As recounted above, the district court later found that
Douglas had indeed opened the door when he testified that
he had offered to cooperate with the police despite his inno-
cence because he had “never been through nothing like
that.” By “that” Douglas was referring to the police inter-
rogation process he was the subject of subsequent to his
arrest in this case. The government proceeded to question
Douglas concerning his two previous convictions:
Q: Mr. Douglas, I heard you testify—I believe you tes-
tified that when Mr. Alvarado asked you about why
you agreed to cooperate with law enforcement
agents and why you spoke to them, you said that
you were scared and—quote—never been through
any—nothing like that before. Do you recall making
that statement in response to a question that, of
Mr. Alvarado?
A: Exactly.
Q: But that’s not true, is it?
A: Pertaining—what’s not true?
No. 03-2566 11
Q: You had been through something like that before,
right?
A: No, not no questions. That’s what I was talking
about, the questioning that they had put me
through.
Q: In 1993, you were convicted of unlawful possession
of a controlled substance, correct?
A: Oh, yes, I was.
Q: You were arrested for that offense; were you not?
A: Exactly.
Q: And you were questioned at the time of your arrest?
A: Yeah. I was questioned.
Q: So you had been through being arrested and being
questioned by law enforcement?
A: Yeah. I had been questioned by law enforcement.
Q: And that wasn’t the only time you’d been arrested
and convicted of a drug offense. In fact, four years
earlier, in 1999, you were charged and convicted of
unlawful possession of marijuana; isn’t that right?
A: 1999? No.
Q: 1989.
A: Oh, ‘89, yes. ‘89.
Q: And you were arrested for that offense?
A: Yes. I was arrested for marijuana.
Q: And you were questioned at the time of your arrest?
A: No.
Q: But you were arrested?
12 No. 03-2566
A: Right. I was arrested.
Q: And you had been through—on at least two occa-
sions where you ultimately were convicted of felony
drug offenses, you had been arrested; and on at least
one of those occasions, you had been questioned by
law enforcement officers, correct?
A: Right. But I wasn’t questioned vigorously like I was
with the two gentlemen.
Q: You wasn’t—you weren’t questioned how?
A: I wasn’t questioned like they had, you know, they
was giving me some ultimatums and et cetera that
particular day.
Appellant Br. 37-38.
Under Rule of Evidence 609, it can be proper for the gov-
ernment to impeach a criminal defendant with evidence of
the defendant’s prior convictions. Fed. R. Evid. § 609(a)(1);
United States v. White, 222 F.3d 363, 370 (7th Cir. 2000). Gen-
erally, “ ‘the details of the prior conviction should not [be]
exposed to the jury.’ ” Id. (quoting United States v. Robinson,
8 F.3d 398, 409 (7th Cir. 1993)). When a defendant “opens
the door,” however, by offering testimony that explains
away an earlier conviction or offers testimony inconsistent
with the facts underlying an earlier conviction, the govern-
ment may inquire into the details of the conviction. Id. We
have cautioned that an open door is not a “license to dwell
on the details of the prior conviction and shift the focus of
the current trial to the defendants’s prior bad acts.” Id.
Nothing of the sort happened here. The government did
not dwell on the prior convictions. In fact, the government
identified the specific crimes (possession of an unlawful
controlled substance and possession of marijuana) briefly
and the focus of the government’s inquiry was not to draw
No. 03-2566 13
out details of the crimes but to show that Douglas had twice
been in situations where police interrogation was
likely—thus shedding doubt on Douglas’s claim that he had
“never been through nothing like that.” The brief mention
of the previous convictions did not “shift the focus of the
current trial” to Douglas’s two previous convictions. The
mentions of Douglas’s prior criminal record take up approx-
imately one and one-half transcript pages of the thirty-six
pages that record the government’s cross-examination of
Douglas.
Douglas’s only complaint can be that the crimes at issue
were drug crimes and that the mention of that might have
poisoned the jury against him in the present drug case.
Douglas’s involvement with illegal drugs, however, was not
alien to the jurors. On direct, Douglas had already admitted
to having previously been involved in the “drug world.”
Even if we were inclined to consider the district court’s
ruling erroneous, such an error would be harmless. The
evidence against Douglas was overwhelming and included,
as we have noted, audio and video recordings of the sales,
the testimony of two agents who watched both transactions,
and Douglas’s own confession. In light of such evidence, we
do not believe brief references to the types of crimes
Douglas had previously been convicted of (assuming the
references were impermissible) “had a substantial and in-
jurious effect or influence on the jury’s verdict.” United States
v. Sutton, 337 F.3d 792, 797 (7th Cir.), cert. denied, 124 S. Ct.
845 (2003).
C. Douglas’s Sentence
Douglas’s final argument concerns the use of his prior
convictions to increase his sentence to a mandatory sentence
of life imprisonment. Douglas argues that his prior convic-
14 No. 03-2566
tions should have had to have been proven to a jury beyond
a reasonable doubt. This argument is without merit. In its
recent opinions concerning sentencing, Blakely v. Washing-
ton, ___ U.S. ___, 124 S. Ct. 2531 (2004), and United States v.
Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), the Supreme Court
reaffirmed its holding in Almendarez-Torres v. United States,
523 U.S. 224, 244 (1998), that the fact of a prior conviction
need not be proven to a jury beyond a reasonable doubt.
Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”) (emphasis
added); Booker, 125 S. Ct. At 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence exceed-
ing 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.”)
(emphasis added); see also United States v. Rosas, 401 F.3d 843,
1
846 (7th Cir. 2005) (per curiam).
1
As we have noted, Douglas was sentenced to life imprisonment
pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). Douglas’s sentence is not
affected, therefore, by the Supreme Court’s decision in Booker v.
United States, ___ U.S. ___, 125 S. Ct. 738 (2005), which holds that
the federal sentencing guidelines are not mandatory. Nor is it
affected by this court’s subsequent decision in United States v.
Paladino, 401 F.3d 471, 483-85 (7th Cir. 2005), to remand cases to
the district court when it is necessary to determine what sentence
the district court would have imposed knowing it had the
discretion it did not have pre-Booker. See also United States v.
Castillo, Nos. 02-3584 & 02-4344, slip op. at 31 (7th Cir. May 3,
2005). Douglas’s sentence is not a product of the guidelines; it is
the result of an independent statute. Life sentences imposed
pursuant to § 841 remain mandatory.
No. 03-2566 15
III.
The district court did not err in prohibiting Douglas from
impeaching Williams’s credibility. The district court also
did not err in permitting the government to inquire into
Douglas’s criminal history for the purpose of impeaching
him. Douglas’s sentence was not constitutionally invalid.
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—5-25-05