United States v. McGee, Keith ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2493, 01-3071, 01-3978, 01-4027, 01-4139,
01-4235, 02-1130, 02-1136, & 02-2153
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH MCGEE, THOMAS KING,
LARONE BRIM, HAROLD MCKINZIE,
TONY BANKS, RABBONI SMITH,
JOHN ECTOR, and FLOZELL MCGEE,
Defendants-Appellants.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 CR 952—Ruben Castillo, Judge.
____________
ARGUED OCTOBER 1, 2004—DECIDED JUNE 3, 2005
____________
Before FLAUM, Chief Judge, and BAUER and POSNER,
Circuit Judges.
BAUER, Circuit Judge. A grand jury indicted the eight
above-named defendants and seven others in 1999 in a
thirty-nine count indictment based on their respective roles
in a drug conspiracy in the Englewood neighborhood on
Chicago’s South Side. The indictment charged the defendants
2 Nos. 01-2493, et al.
with various drug offenses, including conspiracy to distribute
narcotics, possession with intent to distribute narcotics, and
use of a telephone to facilitate the conspiracy. Larone Brim
pleaded guilty and the other seven defendants-appellants
proceeded to trial. After a three-week trial, a jury convicted
Keith McGee, Thomas King, Tony Banks, Rabboni Smith,
John Ector, and Flozell McGee on all counts. The jury
acquitted Harold McKinzie on the conspiracy count, but
convicted him on two telephone facilitation counts. McKinzie
subsequently pleaded guilty to two previously severed
counts of possession with intent to distribute.
The defendants, individually and collectively, appeal
raising numerous issues. For the reasons stated herein, we
affirm the defendants’ convictions, vacate and remand
Ector’s case for resentencing, and order a limited remand
with respect to the sentences of King, Smith, Keith McGee,
Flozell McGee, Brim, and McKinzie pursuant to United States
v. Paladino, 401 F.3d 471 (7th Cir. 2005).
I. Background
A. Investigation and Indictments
In 1997, while investigating Charles Jackson, a suspected
drug dealer in Chicago, the FBI identified Robert Allen as
a cocaine supplier in Chicago’s Englewood neighborhood.
The FBI eventually obtained authorization to monitor Allen’s
land line and cellular telephones from April to June 1998.
During that period, the FBI intercepted over 4,000 tele-
phone calls, many of which involved drug transactions.
In August 1998, based in part on information from the
intercepted phone calls, the FBI arrested Allen, Antwayne
Palmore, Samuel Redding, and Irving Tillman—all of whom
subsequently pleaded guilty to drug conspiracy charges and
agreed to cooperate with the government. Thereafter, and
in part as a result of their cooperation, the grand jury
Nos. 01-2493, et al. 3
returned an indictment against defendants Keith McGee,
King, Banks, Smith, Ector, Flozell McGee, McKinzie, Brim,
and seven others. All defendants were charged with conspir-
ing, between January 1997 and August 1998, to distribute
and possess with intent to distribute more than five
kilograms of cocaine and more than fifty grams of cocaine
base, in violation of 21 U.S.C. § 846. The grand jury further
charged King with possessing with intent to distribute ap-
proximately 123.5 grams of cocaine on or about January 6,
1998, in violation of 21 U.S.C. § 841(a)(1). In addition, the
grand jury charged McKinzie with possessing with intent to
distribute approximately 60.7 grams of cocaine and
92 grams of cocaine base on or about December 8, 1999,
in violation of 21 U.S.C. § 841(a)(1). The grand jury also
charged each defendant with at least one count of using a
telephone to facilitate the conspiracy, in violation of 21
U.S.C. § 843(b).
On September 1, 2000, Brim pleaded guilty to the con-
spiracy count and to four telephone facilitation counts. On
September 8, 2000, the district court severed the possession
with intent to distribute counts against McKinzie from the
trial. The remainder of the case proceeded to trial in
January 2001.
B. Evidence at Trial
Allen, Palmore, Samuel Redding, and Tillman all testified
for the government at trial. According to Allen and Palmore,
Allen, Palmore, Franklin Redding, and King “grouped
together” to sell cocaine in early 1997 due to a “drought” of
cocaine in Chicago. Each had been involved in the drug trade
previously. Allen was in charge of the operation; Palmore
contributed money, suppliers, and customers; Franklin
Redding contributed customers and drugs; and King picked
up kilograms of cocaine from suppliers and sold them to
drug dealers. Although Palmore and Franklin Redding left
4 Nos. 01-2493, et al.
the operation at different points due to disputes over money,
both later resumed buying and selling drugs in connection
with the operation.
The drug operation obtained powder cocaine in kilogram
quantities from various drug suppliers. Before the drugs
were resold, Allen usually “rerocked” the powder cocaine,
adding a mix to it in order to increase the volume of the
cocaine and the operation’s profits. In order to create crack
cocaine, Allen heated a mixture of the “rerocked” cocaine,
baking soda, and water to an oil base and then cooled it into
a hardened substance. The operation then resold the
“rerocked” powder cocaine and crack cocaine to drug dealers
in quantities ranging from 63 grams to multiple kilograms.
From early 1997 to August 1998, the operation sold over
100 kilograms of crack cocaine and over 100 kilograms of
powder cocaine, with a profit of approximately $31,000 on
each kilogram. Allen and Palmore kept most of the profits;
Franklin Redding and King received $1,000 and $500 per
kilogram respectively.
Like many drug dealers, Allen and his cohorts frequently
spoke in code. Allen translated the code for the government
before trial and explained the code to the jury at trial.
Crack cocaine was referred to as “tight” or “hard.” With re-
spect to quantity, “125th street” was code for 125 grams of
drugs, “halfway home” was code for one-half kilogram, and
“all the way home” was code for one kilogram. Although the
operation generally expected payment from customers upon
delivery of the drugs, it “fronted” drugs to certain customers
with the understanding that they would pay the operation
within a reasonable period of time.
In presenting the evidence, the government addressed
each defendant individually, beginning with Banks. Allen
testified that he and Banks grew up together. When Banks
was released from jail in 1998, Allen gave him money,
drugs, and a car. Allen testified that there were numerous
Nos. 01-2493, et al. 5
sales between him and Banks, and that Banks bought a
total of approximately two kilograms of cocaine from Allen
in 1998. Allen fronted Banks drugs if they were “just for
him,” and Banks paid Allen on delivery when he acted as a
middleman. On occasion, Allen cooked crack cocaine for
Banks.
Ector began dealing drugs with Allen in 1998. According
to the evidence presented at trial, Ector purchased a total
of four kilograms of powder cocaine from the drug operation
in 1998. On one occasion, in early 1998, Ector arranged
with Palmore to buy one-eighth of a kilogram of cocaine;
Allen and Samuel Redding met Ector at a gas station to
complete the deal. Samuel Redding also testified about two
additional drug deals between the operation and Ector, with
Ector purchasing 250 grams of cocaine on one occasion and
one-half kilogram of cocaine on another occasion.
King actively worked for the drug operation between 1997
and April 1998. While working for the operation, King
picked up kilograms of cocaine from suppliers and sold it to
drug dealers. On two occasions in 1997, King delivered one-
eighth of a kilogram of cocaine to Samuel Redding. In late
1997, King delivered one-half of a kilogram of cocaine to
Irving Tillman. On two occasions in 1998, King sold Irving
Tillman one-eighth of a kilogram of cocaine. On
both occasions in 1998, King delivered the drugs to Irving
Tillman’s apartment and was present while he cooked the
powder cocaine into crack cocaine.
The McGee brothers, Keith and Flozell, engaged in numer-
ous drug deals with Allen and his associates. Between 1997
and 1998, Keith McGee purchased four kilograms of powder
cocaine and two kilograms of crack cocaine from the
operation. Keith McGee acted as a middleman, selling those
drugs to other customers, including his brother, Flozell.
During 1998, members of the drug operation sold a total of
three kilograms of powder cocaine to Flozell McGee in one-
6 Nos. 01-2493, et al.
eighth of a kilogram quantities. The FBI intercepted and
recorded numerous phone calls reflecting the McGee broth-
ers’ involvement in the operation.
Allen met McKinzie in late 1997 when McKinzie began
buying drugs from the operation. According to Allen,
McKinzie bought powder and crack cocaine in quantities of
one-sixteenth to one-eighth of a kilogram. Irving Tillman
testified that he delivered drugs to McKinzie approximately
twenty times between late 1997 and early 1998.
Allen met Rabboni Smith in 1997. In 1997 and 1998,
Smith purchased approximately five kilograms of powder
cocaine and four kilograms of crack cocaine. The operation
fronted drugs to Smith, who paid various members of the
operation after he sold the drugs to his customers. Samuel
Redding sold drugs to Smith on twenty occasions at Allen’s
home. Palmore sold drugs to Smith about twelve times in
spring of 1998. In early 1998, Irving Tillman saw Smith buy
drugs from Allen ten times. The FBI intercepted and
recorded numerous phone calls reflecting Smith’s involve-
ment in the drug operation.
Smith took the stand in his own defense at trial. Smith
admitted that it was his voice on the tape-recorded phone
calls, and he admitted that he sold at least one-quarter of
a kilogram of powder and crack cocaine between February
and July 1998. Smith also admitted that the operation
fronted drugs to him. According to Smith, he was coerced in-
to engaging in the charged conduct under threat of serious
bodily harm or death to himself, his wife, and his daughter
in order to pay a debt to the Black Disciples street gang.
Smith testified that he joined the Black Disciples in
March 1992 and attempted to leave the gang in 1993, but
the gang terrorized and fined him for trying to leave. Smith
eventually left the gang after paying a portion of his fine
and enrolled in an engineering program at the Illinois
Institute of Technology (“IIT”). Smith testified that he was
crossing the IIT campus with a classmate in February 1998
when he was accosted by Palmore, Samuel Redding, and
Nos. 01-2493, et al. 7
another Black Disciple. According to Smith, the men had
come to collect on Smith’s unpaid debt, and they forced him
into their car at gunpoint. Smith was taken to Allen’s
apartment and beaten with a Wiffle Ball bat. According to
Smith, he was ultimately forced to work off the old debt as
well as an additional fine by selling drugs for Allen, whom
Smith insisted had never left the Black Disciples.
The jury convicted all defendants on all counts with the
exception of McKinzie, who was acquitted on the conspiracy
count and convicted on two telephone facilitation counts.
The defendants appeal numerous issues.
II. Discussion
A. Joint Brief
Defendants argue that the district court thwarted their
right to cross-examine the government’s witnesses and, in
the end, denied them a fair trial. Defendants first criticize
the district court for denying their request for the “versions
of offenses” portion of the presentence reports of six govern-
ment witnesses. Next, defendants assail the district court
for putting limitations on their cross-examination of Allen,
primarily with regard to two letters Allen wrote to the
prosecutor in which he offered to cooperate with the
government in exchange for leniency. Finally, defendants
contend that the district court barred ordinary impeach-
ment by prior inconsistent statement and the use of FBI
reports to attempt to refresh a witness’ recollection. We will
address each argument in turn.
1. Jencks Act
We begin with defendants’ contention that the district
court improperly denied them access to the “versions of
offenses” portions of government witnesses’ presentence
8 Nos. 01-2493, et al.
reports, which defendants view as Jencks Act material. The
Jencks Act provides, in relevant part:
After a witness called by the United States has testified
on direct examination, the court shall, on motion of the
defendant, order the United States to produce any
statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the
subject matter as to which the witness has testified.
18 U.S.C. § 3500(b). The Jencks Act defines a statement as
“a written statement made by said witness and signed or
otherwise adopted or approved by him.” 18 U.S.C.
§ 3500(e)(1). Defendants point out that, pursuant to the
local rules, a defendant must submit his own version of the
offense for the presentence report, or approve or adopt the
government’s version. Thus, according to defendants, the
versions of offenses are statements under Jencks, and the
government must produce them upon request after direct
examination, to the extent that they relate to the testimony
of the witness.
We are not persuaded by defendants’ argument. First, we
have long recognized “the critical importance of maintaining
the confidentiality of presentence reports.” United States v.
Cyphers, 553 F.2d 1064, 1069 (7th Cir. 1977). As we noted in
United States v. Corbitt, 879 F.2d 224, 229-30 (7th Cir.
1989), it is essential for district courts to receive full
disclosure of information relevant to sentencing, especially
considering the role presentence reports play in guidelines
sentencing, and the defendant may not be as forthcoming
with information if he knows that his spurned confederates
will have access to the report. Defendants point out that
this “free flow of information” rationale may be less compel-
ling when the witness publicly testifies about information
in the report, but sources other than the defendant contrib-
ute to the report, and those sources may be less willing to
take the risks associated with exposure than the defendant
Nos. 01-2493, et al. 9
who agrees to testify for the government at trial. Moreover,
presentence reports may contain information relevant to
ongoing criminal investigations, and the government has a
strong interest in preventing disclosures that could tip off
unindicted coconspirators or otherwise compromise such
investigations. Corbitt, 879 F.2d at 235. The concern about
compromising investigations is particularly significant with
a cooperating witness like Allen, who pleaded guilty to
offenses based on his central role in a sprawling drug
conspiracy, provided the government with a trove of
information that led to the indictments of dozens of young
men, and testified against his former associates in at least
two trials. United States v. Trennell, 290 F.3d 881 (7th Cir.
2002).
In addition, presentence reports are not statements of the
defendant within the meaning of Jencks. They are reports
prepared by probation officers used primarily as an aid to
district courts at sentencing, and what defendants would
characterize as adoption (within the meaning of Jencks) of
the government’s version of the offense is usually little
more than failing to submit their own version of the offense
or failing to object to the probation officer’s version. Finally,
as noted by the Second Circuit, it is difficult to argue that
Congress intended for the Jencks Act to mandate routine
disclosure of presentence reports to third parties when
defendants did not even have access to their own
presentence reports until 20 years after the enactment of
the Act:
The Jencks Act was enacted in 1957. At that time, dis-
closure of presentence reports was even more restricted
than it is now. Indeed, it was not until 1975 that
defendants were entitled to see their own presentence
reports as a matter of right. It would be ironic to hold
that Congress, almost two decades earlier, intended the
Jencks Act to require the routine release of such reports
to third parties.
10 Nos. 01-2493, et al.
United States v. Moore, 949 F.2d 68, 71 (2d Cir. 1991) (cita-
tion omitted). Accordingly, we join the other circuits that
have considered this issue, United States v. Jackson, 978
F.2d 903, 909 (5th Cir. 1993); United States v. Moore, 949
F.2d 68, 71 (2d Cir. 1991); United States v. Dansker, 537
F.2d 40, 60 (3d Cir. 1976), and conclude that the Jencks Act
does not require routine disclosure of presentence reports to
third parties.
This conclusion does not deprive defendants of access to
cooperating witnesses’ presentence reports in every case. If
a defendant suspects that a presentence report contains
Brady material, he may request that the district court
conduct an in camera review of the report to determine if
his suspicions are warranted. United States v. Anderson,
724 F.2d 596, 598 (7th Cir. 1984). That procedure was
requested by the defendants in this case and performed by
the district court. The district court subsequently released
information on Allen’s financial condition contained in the
report and refused to disclose the remainder of Allen’s re-
port or the other cooperating defendants’ reports because
they did not contain impeachment or exculpatory material.
The district court thus fulfilled its duty and afforded
defendants their rights. Accordingly, we reject defendants’
arguments that their trial rights were compromised by the
district court’s failure to order disclosure of the entirety of
the “versions of offenses” portions of the presentence reports.
2. Cross-examination of Allen
Defendants’ next argument centers on the limits placed
on their cross-examination of Allen. According to defendants,
the district court viewed the cross-examination of Allen “as
an exercise in futility and a waste of time” and “imposed
blunt-edged, arbitrary limits on defense cross-examination
by forcing defendants to accept the cross-examination of
[Allen] by one defense lawyer.” Def.’s Joint Brief at 17. Speci-
Nos. 01-2493, et al. 11
fically, defendants assail the district court for limiting their
cross-examination of Allen with regard to two handwritten
letters he sent to the prosecutor prior to his sentencing and
prior to his testimony in the instant case. In the letters,
Allen assures the prosecutor that he is “not a bad person,”
that he is “riding with the government 100%,” and that he
knows enough information so that “we can make arrange-
ments for [Allen] to go home.” He also reminds the prosecu-
tor that he has children that need him and that his mother
is sick, and adds that the prosecutor “seems like a very nice,
understanding woman.” The district judge initially per-
mitted Ector’s attorney to question Allen about the letters,
but sustained a subsequent government objection to
questions about the letters because he already had granted
Ector’s counsel “a lot of leeway” and “the subject [was] com-
pletely exhausted.” Tr. 1306, 1317-18. Attorneys for Banks,
Smith, Keith McGee, Flozell McGee, McKinzie, and King
were not permitted to cross-examine Allen about the letters.
According to defendants, that ruling by the district court
denied them their Sixth Amendment right to confront and
cross-examine Allen about his biases and motivations for
testifying. In response, the government asserts that the
letters were inadmissible hearsay evidence and that even if
the letters were not hearsay, any error by the district court
was harmless.
The Confrontation Clause of the Sixth Amendment guar-
antees the right of a criminal defendant “to be confronted
with the witnesses against him.” U.S. CONST. amend. VI.
The clause protects the criminal defendant’s “right physi-
cally to face those who testify against him, and the right to
conduct cross-examination.” Pennsylvania v. Ritchie, 480
U.S. 39, 51, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). The right
to cross-examination is not unlimited; trial courts have wide
latitude “to impose reasonable limits on such cross-exami-
nation based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’
12 Nos. 01-2493, et al.
safety, or interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
We agree with the defendants that the better practice
would have been for the district court to grant each
defendant’s attorney some leeway to cross-examine Allen on
the letters to the prosecutor. Moreover, the government’s
characterization of the letters as hearsay is inaccurate; the
letters are textbook examples of impeachment evidence.
However, even if the court’s ruling amounted to a violation
of the defendants’ Confrontation Clause rights, the ruling
is subject to harmless error review. Van Arsdall, 475 U.S. at
684. The Van Arsdall Court advised courts to consider the
following factors when determining whether a Confrontation
Clause violation is harmless: “the importance of the witness’
testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness
on material points, the extent of cross-examination other-
wise permitted, and of course, the overall strength of the
prosecution’s case.” Id.
After an exhaustive review of the record, we are confident
that even if the district court erred in not allowing each
defendant’s attorney to cross-examine Allen about the let-
ters, the error was harmless beyond a reasonable doubt. Al-
though Allen was an important witness for the prosecution
and that militates in favor of defendants, other relevant
factors demonstrate that the challenged ruling was harm-
less. First, the jury was aware of the gist of the letters due to
Ector’s attorney’s cross-examination of Allen. The district
court allowed Ector’s attorney to ask Allen the following
questions about the letters:
Q. Well, in this letter, you’re saying that you want to
do more to help yourself, don’t you?
A. Exactly.
Nos. 01-2493, et al. 13
Q. And you’re saying that you just want a little time
off for cooperating; you say that, don’t you?
A. Yes, I say that.
Q. And you say you want to do it to go home, right?
A. Yes.
Q. And not do any time, right?
A. Yes.
Q. And you say, “I know you can help me. I’m not ask-
ing for anything free. I can earn mine. I just want
you to be fair, [that is] why I’m making my effort to
earn all the credit I need to go home.” You say that,
right?
A. Yes, I do.
Tr. 1257-58. After some argument over government ob-
jections, Ector’s attorney continued to cross-examine Allen
about the letters:
Q. And by writing this letter, you’re trying to convince
[the prosecutor] to help you get a low sentence so
you can go home, aren’t you? Isn’t that your pur-
pose?
A. Yes.
Q. And you’re telling—you tell her in this letter, or it’s
your feeling at this point that you’ll do anything
that you can do for the government or for her so
that you can go home, isn’t that true?
A. No, I wouldn’t do anything, but I tell the truth as
far as cooperating.
Q. Well, you talk about setting people up, don’t you?
A. Yes.
Q. You’re willing to do that?
14 Nos. 01-2493, et al.
A. Yes, that’s cooperating. That’s not doing anything.
Q. And you’re telling her that you’ll try to get other
people to work for the government, right, friends and
relatives?
A. I was explaining to her that I can get someone to do
something on my behalf to help me get a reduced
sentence.
Q. And that you’ll work as a [confidential informant]
if she lets you out and does that, right?
A. Yes.
Q. You’re really telling her you’d do almost anything to
get out of jail, right?
A. I’m not telling her I do anything [sic], I’m just let-
ting her know that I cooperate.
Q. You tell her that you don’t have a limit on what
you’d do. You tell her that, don’t you?
A. Yes.
Tr. 1260-61. Thus, even though not every attorney was per-
mitted to cross-examine on the letters, the jury heard about
the content of the letters, and Allen admitted that he wrote
the letters and acknowledged his motivations for writing
them, which casts doubt on defendants’ assumption that
further questioning on the letters would have had a devas-
tating effect on Allen’s credibility. Cf. Van Arsdall, 475 U.S.
at 677 (trial court did not allow any cross-examination of
government witness regarding government’s dismissal of an
unrelated charge in exchange for the witness’ cooperation).
Second, Allen was extensively cross-examined on bias and
motive by each defense attorney. Ector’s attorney was the
first defense attorney to cross-examine Allen, and he
hammered Allen’s credibility for approximately three hours.
Among other things, he questioned Allen about the follow-
Nos. 01-2493, et al. 15
ing topics: his practice of diluting cocaine to fool customers
and increase profits; his 1993 arrest on narcotics charges;
his immediate return to dealing drugs in violation of his
bond conditions; his cooperation with the government after
the 1993 arrest that ultimately resulted in a sentence of
40 months instead of 10 to 15 years; his return to drug
dealing about two months after his release from prison in
violation of his supervised release; his monthly bribes to a
probation officer to avoid the consequences of his dirty urine
drops; his bribes to his former employer so that the employer
would issue him paychecks and tell his probation officer
that he was still working there; his bribes to employees at
City Hall in exchange for the transfer of property rights to
him; his involvement with the Black Disciples; his “trap cars”
with secret compartments for hiding cocaine; his 1998 ar-
rest on narcotics charges; his immediate cooperation with
authorities and his willingness to turn on friends, relatives,
and other associates; his deal with the government in which
the government would recommend a 20-year sentence in
exchange for his cooperation; and the Rule 35 motion filed
by the government that could further reduce his sentence
depending on his testimony at trial. King’s attorney cross-
examined Allen about his purchase of two grenade launchers
and grenades; the mix that Allen added to dilute cocaine
and cheat his customers; his deal with government; and the
possibility that he met with the other cooperating defendants
in the Metropolitan Correctional Center (“MCC”) to coordi-
nate their testimony. Keith McGee’s attorney asked Allen
about the details of his plea agreement and his drug dealing.
Counsel for Banks cross-examined Allen on how he laundered
his drug money; the property he forfeited as part of his plea
agreement; the false monthly reports he submitted under
oath to his probation officer; the government’s failure to
prosecute him for perjury; his defrauding of a local Boys
and Girls Club; and the lies that Allen told the government
immediately after his arrest. In addition to impeaching Allen
on many of the areas already covered by other defense
16 Nos. 01-2493, et al.
lawyers, Smith’s attorney cross-examined Allen about his
fights in prison and about the fact that he had met with
prosecutor so many times that he was on a first name basis
with her.1 Flozell McGee’s attorney peppered Allen with
questions about the massive profits he made as a drug
dealer; his failure to pay taxes; and the disappearance of all
the drug money. As the foregoing summary of Allen’s cross-
examination demonstrates, the extent of cross-examination
otherwise permitted was considerable and provided defen-
dants with ample opportunity to paint a reasonably com-
plete picture of Allen from which the jury could assess his
credibility.
Finally, defendants’ arguments about the limits placed on
cross-examination run headlong into the overall strength of
the government’s case. The government supported its case
with what may be the most powerful and reliable evidence
in a drug conspiracy prosecution: tape recordings of numer-
ous phone calls between the defendants that evidenced their
extensive involvement in the illegal drug trade. Palmore,
Redding, and Tillman all provided testimony at trial that
largely corroborated the material aspects of the wiretap
evidence and Allen’s testimony. Smith took the stand in his
own defense and admitted that it was his voice on the tape
recordings. As a result, we think that the not-fully-im-
peached evidence had little or no effect on the reliability of
the factfinding process at trial.
In sum, due to Ector’s cross-examination of Allen on the
letters, Allen’s admissions about the contents of the letters,
the otherwise extensive cross-examination of Allen by all
1
In his individual brief, Smith also challenges the limitations
that the district judge imposed on his cross-examination of
Palmore and Redding. After reviewing the record, we conclude
that the limitations placed on Smith’s cross-examination of
Palmore and Redding were reasonable and did not violate Smith’s
rights under the Sixth Amendment.
Nos. 01-2493, et al. 17
defense attorneys, and the overall strength of the prose-
cution’s case, we doubt that further cross-examination on
the letters would have had an appreciable effect on the
jury’s assessment of Allen’s credibility or the outcome of the
case and conclude that any error by the district court was
harmless beyond a reasonable doubt.
3. Other Objections
Defendants raise a number of other objections to the
district court’s rulings, mainly about their attempts to re-
fresh the recollection of government witnesses and impeach
government witnesses with prior inconsistent statements.
After a careful review of the objections, we conclude that
the issues do not warrant extended discussion because the
challenged rulings, to the extent that they are erroneous, do
not individually or collectively amount to reversible error.
B. Smith’s Brief
1. Testimony from Gang Expert
Smith first challenges the district court’s denial of his
request to appoint Dr. John Hagedorn under 18 U.S.C.
§ 3006A(e), which authorizes trial courts to appoint experts for
indigent defendants if the services are “necessary for ade-
quate representation.” Smith argues that Dr. Hagedorn’s
testimony, which would have explained gang life and drug
trafficking to the jury, was necessary because it would have
independently corroborated his coercion defense and
undermined the government’s theory that Smith was dealing
drugs for the money. The district court refused to appoint
Dr. Hagedorn in a pre-trial ruling, opining that his testimony
was neither helpful nor admissible. When Smith renewed
his request to appoint Dr. Hagedorn at trial, the district
court reaffirmed its ruling, reasoning that “Dr. Hagedorn’s
testimony is just not necessary under the 700 series of the
18 Nos. 01-2493, et al.
rules of evidence, was not necessary for this jury’s consider-
ation [and] there’s been plenty of testimony about what gangs
do and what they don’t do in Chicago on the South Side.”
We review the district court’s decision for abuse of discre-
tion. United States v. Daniels, 64 F.3d 311, 315 (7th Cir.
1995).
Dr. Hagedorn, a criminal justice professor at the
University of Illinois-Chicago who has focused his scholar-
ship on inner-city youth gangs, would have testified that the
Black Disciples operate within a highly structured hier-
archy where failure to follow gang rules often results in
swift and violent penalties, including death. Leaving the
gang can be a hazardous undertaking, involving beatings
and fines. A gang member that cooperates with law en-
forcement puts himself and his family at risk of death or
serious injury. Furthermore, gangs are driven by profits
from drugs sales, and debts are taken seriously and seldom
forgiven.
Smith sought to introduce the above-recited testimony to
bolster his own testimony that he was kidnaped, beaten,
and threatened by the Black Disciples in early 1998 over a
debt he incurred by leaving the gang in 1993, effectively
coercing him to return to dealing drugs. Smith asserts that
Dr. Hagedorn’s testimony also would have explained why
Smith did not go to the police after the Black Disciples kid-
naped and threatened him. In addition, Smith maintains
that gang life and drug trafficking are beyond the ken of the
average juror. In response, the government argues that Dr.
Hagedorn’s testimony was unnecessary under 18 U.S.C.
§ 3006A(e) because the jury already had heard similar tes-
timony from a number of witnesses. We agree with the
government.
First, we doubt that the substance of Dr. Hagedorn’s testi-
mony was beyond the ken of the average juror. Most jurors
are aware that gang members deal drugs, commit violent
Nos. 01-2493, et al. 19
acts, and react unfavorably when their misdeeds are re-
ported to authorities. Second, Dr. Hagedorn’s description of
gang life in Chicago would have been a needless rehashing
of ground covered by prior witnesses. For example, FBI
Agent Yun, the first witness called by the government,
testified that Black Disciple gang leaders may punish a
member’s violation of a gang rule by ordering that member
to be beaten, or even murdered. Allen acknowledged his
past membership and role in the Black Disciples, testified
about the violent nature of drug trafficking, and stated that
there were consequences if people owed him money. Samuel
Redding admitted that he was affiliated with the Black
Disciples and that the gang pressured him to participate in
illegal activity. Palmore acknowledged participation in the
beatings of other Black Disciple members on multiple
occasions and said that a Black Disciple gang member could
not go to the police because it could cost him his life. Smith
himself testified extensively about the modus operandi of
the Black Disciples. In light of the testimony of Agent Yun,
Allen, Redding, Palmore, and Smith about the violent and
coercive nature of the Black Disciples, Dr. Hagedorn’s
testimony was cumulative and unnecessary. The district
court did not abuse its discretion by denying Smith’s
requests to appoint Dr. Hagedorn.
2. New and Previously Undisclosed Evidence
Smith next argues that the district court erred in denying
his motion for a new trial based on newly discovered evi-
dence. This evidence consists of: (1) a statement by Larone
Brim that Allen asked Brim to “touch up” Smith for failure
to pay a debt; (2) a statement from Black Disciple Will
Carthan that Allen and his associates conducted surveil-
lance of Smith to ensure that he sold narcotics; (3) grand
jury testimony from a Black Disciple member in a related
investigation that a Chicago police officer received protec-
20 Nos. 01-2493, et al.
tion money from the gang; and (4) a statement by Charles
Jackson that he heard from Antwayne Palmore, who had
heard from a third-party, that Smith had been beaten with
a baseball bat for failing to pay a debt.
Under Rule 33 of the Federal Rules of Criminal Procedure,
a district court “may vacate any judgement and grant a new
trial if the interest of justice so requires.” To carry his
burden of showing that the interest of justice requires a
new trial, a defendant must establish that the evidence: (1)
came to his knowledge only after trial; (2) could not have
been discovered sooner had due diligence been exercised; (3)
is material and not merely impeaching or cumulative; and
(4) would probably lead to an acquittal in the event of a
retrial. United States v. Ryan, 213 F.3d 347, 352 (7th Cir.
2000). “[W]e approach such motions with great caution and
are wary of second-guessing the determinations of both
judge and jury.” United States v. DePriest, 6 F.3d 1201, 1216
(7th Cir. 1993). Accordingly, we will reverse the denial of a
motion for a new trial only upon a showing of abuse of dis-
cretion. United States v. Reed, 986 F.2d 191, 193 (7th Cir.
1993).
Every piece of evidence offered by Smith fails at least one
prong of the above-recited test. With respect to Larone
Brim’s statement that Allen asked him to “touch up” Smith
for failure to pay a debt and Will Carthan’s statement about
the Black Disciples’ surveillance of Smith’s house, Smith
fails to address why this evidence could not have been
discovered before trial. The grand jury testimony about
Black Disciple members paying protection money to the
police would have corroborated a largely unchallenged and
unsurprising portion of Smith’s testimony—that gang
members seek to mitigate the risks associated with their
unlawful behavior by bribing unscrupulous police officers.
It is not the sort of evidence that warrants a new trial.
Finally, we doubt that Jackson’s statement that Smith was
beaten with a bat would lead to an acquittal in the event of
Nos. 01-2493, et al. 21
a retrial. Even though the evidence would corroborate a
portion of Smith’s testimony, a jury would probably still re-
ject his coercion defense because of his admittedly extensive
involvement with Allen’s drug group and because of his
failure to permanently flee the area or seek the assistance
of authorities. The district court did not abuse its discretion
in denying Smith’s motion for a new trial.
3. MCC Phone Call Recording
Smith also challenges the trial court’s ruling allowing the
government to play the recording of a phone call that Smith
made to his employer while he was in federal custody at the
MCC. Smith telephoned his supervisor at the Illinois
Department of Transportation to explain his sudden absence
from work and told him that a relative from out of state had
been murdered and that Smith had to retrieve the children
and deal with DCFS because they were taking guardianship
of the children. Smith also called his wife from the MCC
and joked about the elaborate lie he told his boss. Consis-
tent with MCC policy, the phone calls were recorded. The
prosecution played the tape of Smith’s call to his supervisor
at the beginning of his cross-examination after the following
colloquy:
BY THE PROSECUTOR:
Q. Mr. Smith, you tell stories. You make things up on
occasion. Correct?
A. As I’m sure everyone does. People make things up
on occasion. Yes.
Q. Is that a yes, Mr. Smith?
A. Yes.
Q. And you do that, [sic] in many times, to get out of a
jam, to get out of a bind. Correct?
22 Nos. 01-2493, et al.
A. No.
Q. You don’t do it to get out of a jam?
A. No. Now, you said “many times,” sir. I’m saying
“no” to many times.
Q. Mr. Smith, we’ll start here. Have you ever made up
stories to get out of a jam?
A. Yes.
DEFENSE COUNSEL:
Judge, I’m going to object for lack of foundation.
THE COURT:
Okay. The objection—the objection is overruled.
BY THE PROSECUTOR:
Q. Have you, in fact, made up stories regarding your
situation in this case to get out a jam, Mr. Smith?
A. No.
Q. Have you ever made up a story regarding your
situation in this case to get out of a jam, Mr. Smith?
A. No.
Q. Now, Mr. Smith, after you were arrested in Decem-
ber of 1999, you placed several phone calls from the
Metropolitan Correctional Center, didn’t you?
A. Yes, I did.
Q. And you knew those calls were being recorded,
didn’t you?
A. No. I did not.
Q. You saw that big sign over the phone that told you
that those calls were being recorded, didn’t you,
Mr. Smith?
Nos. 01-2493, et al. 23
A. The phone was in the middle of a desk, sir, and
there was no sign there at all.
Q. Mr. Smith, one of the people you called was your
wife. Correct?
A. Yes.
Q. And one of the stories you told was to your em-
ployer, isn’t that correct, Mr. Smith?
DEFENSE COUNSEL:
Objection. Foundation.
THE COURT:
Overruled.
BY THE WITNESS:
A. I’m not sure what you’re talking about.
BY THE PROSECUTOR:
Q. You’re not sure what I’m talking about. Well, let me
refresh your recollection.
DEFENSE COUNSEL:
Judge, I’ve never received this. I’ve never heard it. May
we take a break for me to hear it?
THE COURT:
No. You can proceed.
Smith later moved unsuccessfully for a mistrial based on
the playing of the tape and then objected unsuccessfully
during the government’s closing when the prosecutor argued
that Smith’s coercion defense was just another story “he’d
made up to get out of a jam.” During rebuttal, the prosecutor
likened Smith’s defense to a “made-for-TV-movie,”and ar-
gued that his coercion story was “strikingly similar to the
same lie he told his boss.”
24 Nos. 01-2493, et al.
Citing Rule 608(b) of the Federal Rules of Evidence, Smith
asserts that the MCC tape was inadmissible extrinsic evi-
dence of a specific instance of conduct bearing on his char-
acter for truthfulness. Smith argues that playing the tape
devastated his credibility, and that the only remedy was a
mistrial because Smith’s defense rested on his credibility.
In response, the government maintains that the tape was
admissible extrinsic evidence of a prior inconsistent state-
ment under Fed. R. Evid. 613. The government also notes
that even if the tape was inadmissible extrinsic evidence,
Rule 608(b) does not bar questioning about the conduct, and
Smith eventually admitted that he told this story to his
employer.
We review the district court’s evidentiary rulings for abuse
of discretion. United States v. Hernandez, 330 F.3d 964, 969
(7th Cir. 2003). If we identify an error that amounts to an
abuse of discretion and a timely objection to the error was
raised at trial, we must determine if the error was harmless
under Fed. R. Crim. P. 52(a). United States v. Olano, 507
U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 508 (1993). If no
timely objection was raised at trial, we review the error
under the Fed. R. Crim. P. 52(b)’s plain error standard. Id.
In the instant case, the government argues that the playing
of the MCC tape should be reviewed for plain error because
Smith’s counsel failed to note the specific ground for her
objection. In the context of this case, we disagree with the
government’s position. Smith’s counsel objected twice for
lack of foundation and then objected to the prosecutor’s
suggestion to “refresh the witness’ recollection” with the
tape by saying, “Judge, I’ve never received this. I’ve never
heard it. May we take a break for me to hear it?” If the
government actually wanted to use the tape to refresh
Smith’s recollection, the proper course would have been to
play the tape for Smith outside the presence of the jury, and
Smith’s request to excuse the jury before playing the tape
would have been appropriate. United States v. Meza-Urtado,
351 F.3d 301, 303-04 (7th Cir. 2003). But the record shows
Nos. 01-2493, et al. 25
that the government used the tape to impugn Smith’s
credibility rather than refresh his recollection, which makes
the prosecutor’s “refresh the recollection” comment puz-
zling. Considering that Smith was in the dark about the
contents of the tape and that he was led astray by the
prosecutor’s “refresh the recollection” foundation, we con-
clude that Smith’s objection was sufficient and that any error
is subject to harmless error review.
Rule 608(b) provides, in relevant part:
(b) Specific instances of conduct. Specific instances
of the conduct of a witness, for the purpose of attacking
or supporting the witness’ character for truthfulness,
other than conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness’
character for truthfulness or untruthfulness . . . .
Although Rule 608(b) bars extrinsic evidence of specific
instances of conduct bearing on a witness’ character for truth-
fulness, the extrinsic evidence may still be admissible for
another reason, such as impeachment for bias, contradic-
tion, or prior inconsistent statement. United States v. Abel,
469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984). The
government argues that the tape was admissible because it
was extrinsic evidence of a prior inconsistent statement.
Under Rule 613(b), extrinsic evidence of a witness’ prior
inconsistent statement is admissible as long as the witness
is given an opportunity to explain the statement and op-
posing counsel is afforded an opportunity to question the
witness about it.
In some instances, it is difficult to distinguish between
Rule 608(b) evidence and Rule 613(b) evidence. In this case,
however, the government’s attempt to characterize the MCC
tape as Rule 613(b) evidence is unconvincing and would
amount to an end-run around Rule 608(b)’s bar on extrinsic
26 Nos. 01-2493, et al.
evidence. The First Circuit’s discussion in United States v.
Winchenbach, 197 F.3d 548 (1st Cir. 1999) helps clarify the
distinction between these rules and illustrates why the
government’s position is without merit:
In our view, Rule 613(b) applies when two statements,
one made at trial and one made previously, are irrecon-
cilably at odds. In such an event, the cross-examiner is
permitted to show the discrepancy by extrinsic evidence
if necessary—not to demonstrate which of the two is
true but, rather, to show that the two do not jibe (thus
calling the declarant’s credibility into question). In short,
comparison and contradiction are the hallmarks of Rule
613(b). . . . In contrast, Rule 608(b) addresses situations
in which a witness’ prior activity, whether exemplified
by conduct or by a statement, in and of itself casts
significant doubt upon his veracity. . . . So viewed, Rule
608(b) applies to a statement, as long as the statement
in and of itself stands as an independent means of
impeachment without any need to compare it to contra-
dictory trial testimony.
Id. at 558 (citations omitted). The force of the MCC phone
call recording was not due to a comparison of Smith’s state-
ments on the tape and his equivocations at trial. Rather,
Smith’s elaborate lie to his supervisor, in and of itself, cast
significant doubt on Smith’s character for truthfulness. For
this reason, the MCC tape falls squarely within the ambit
of Rule 608(b), and it was error for the district court to
allow the government to play the tape.
Nevertheless, we decline to reverse Smith’s conviction
because the error was harmless. United States v. Jarrett,
133 F.3d 519, 529 (7th Cir. 1998) (noting that courts do not
reverse convictions for evidentiary error unless the error
had a substantial or injurious effect on the jury’s verdict).
Smith, who was charged with and convicted of conspiracy to
distribute narcotics and the use of a telephone to facilitate
the conspiracy, took the stand in his own defense, admitted
that the government properly identified his voice on the phone
Nos. 01-2493, et al. 27
call recordings and acknowledged that he dealt cocaine and
crack with Allen from February 1998 until July 1998 (Allen
was arrested in August 1998), but maintained that he was
coerced into dealing drugs in February 1998 to pay off a
debt to the Black Disciples. Even if the government had not
played the MCC tape and the jury credited Smith’s testi-
mony that the Black Disciples pushed him back into drug
dealing in February 1998 to pay off a debt, we think that
his coercion defense is deficient as a matter of law. The
government intercepted and recorded dozens of phone calls
between Smith and Allen discussing drug transactions.
Based on our review of the record, there is neither a hint of
coercion on the tapes nor any discussion of payment of a
debt to the Black Disciples (though Allen and Smith often
discuss payment for drugs that Allen had fronted Smith).
Instead, in the tapes played to the jury and interpreted by
Allen, Smith arranges to purchase large quantities of co-
caine and crack, Tr. 1035, bickers with Allen about the
prices of the drugs, Tr. 1033-35, 1096, complains about the
quality of the drugs, Tr. 1084-85, complains that he is losing
business and profits because Allen cannot always deliver
the cocaine when the customers want it, Tr. 1099-1100, 1106,
and informs Allen that he was renting a house to “open up
shop there.” Tr. 1080. On one occasion, Smith tells Allen
that some of his customers claim that they were robbed and
that he is holding the customers at gunpoint until they pay
him. Tr. 1056-62. Although we do not foreclose the pos-
sibility of a viable coercion defense to federal narcotics
charges, we are dubious of the defense in circumstances
where the defendant engaged in numerous drug transactions
over an extended period of time, accepted the proceeds from
the drug sales, and made no effort to contact authorities or
permanently flee the area. Even if Smith’s initial step into
the drug conspiracy in 1998 was not voluntary, the only
reasonable conclusion supported by the evidence is that
Smith persisted in the illegal activity after any immediate
danger had passed and failed to permanently flee or seek
protection despite having the opportunity to do so, and this
28 Nos. 01-2493, et al.
dooms his coercion theory. United States v. Bailey, 444 U.S.
394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980) (“Under any
definition of these defenses [coercion/duress and necessity]
one principle remains constant: if there was a reasonable,
legal alternative to violating the law, ‘a chance both to re-
fuse to do the criminal act and also to avoid the threatened
harm,’ the defenses will fail.”). Consequently, we reject
Smith’s invitation to reverse his conviction on the basis of
a Rule 608(b) error.
4. Prosecutorial Misconduct
Smith next argues that he is entitled to a new trial because
the prosecutors engaged in a pattern of misconduct that
compromised the fairness of his trial. Though he provides
us with a long list of instances of prosecutorial misconduct,
he only develops arguments with regard to two of them: (1)
the government’s failure to disclose the MCC tape prior to
trial; and (2) an FBI agent’s use of sealed recordings of two
intercepted phone calls in an interview with Smith’s neigh-
bors.2 Smith moved for a mistrial based on the government’s
failure to disclose the MCC tape and moved to suppress all
of the wiretap evidence based on the FBI agent’s use of the
two sealed recordings, and the district court denied both
motions. We will defer to the district court’s judgment on
these rulings unless either decision amounted to an abuse
of discretion. United States v. Boyd, 55 F.3d 239, 242 (7th
Cir. 1995). When assessing allegations of prosecutorial mis-
conduct, we must first decide whether the government’s
2
Smith’s failure to develop arguments with respect to the other
alleged instances of misconduct results in waiver of those claims.
United States v. Andreas, 150 F.3d 766, 769 (7th Cir. 1998).
Notwithstanding the waiver problem, many of the actions that
Smith challenges, such as the prosecutor’s facial expressions when
cross-examining Smith, fall far short of prosecutorial misconduct
and had no appreciable effect on the outcome of the trial.
Nos. 01-2493, et al. 29
conduct was proper. United States v. White, 222 F.3d 363,
369-70 (7th Cir. 2000). If we conclude that the conduct was
improper, we must consider the conduct in light of the en-
tire record to determine if Smith was so prejudiced by the
improprieties that he was deprived of a fair trial. Id.
We agree with Smith that the government’s failure to dis-
close the MCC tape was improper. Smith filed a pre-trial
motion to require the government to disclose its intention
to use any Rule 404(b) or Rule 608(b) evidence at trial, and
the district court granted the motion. As explained above,
the MCC tape was Rule 608(b) evidence. Consequently, the
government should have disclosed its intention to use the
tape prior to trial. The FBI agent’s use of sealed wiretap
evidence was also ill-advised. During an interview with the
agent, Smith’s neighbors expressed doubt about the charges
against Smith because he seemed “too nice.” The agent
cleared up their doubts by playing two phone call recordings
that left no question as to Smith’s involvement in the drug
trade. The district court had previously issued an order pur-
suant to Title III that sealed the recordings and permitted
the recordings to be disclosed by court order “or to other law
enforcement agencies.” The government’s justification for
the disclosure—that the agent played the tapes in order to
develop witnesses that could identify Smith’s voice on the
recordings—strikes us as an unpersuasive, post hoc ration-
alization for the disclosure.
However, we do not punish prosecutors for government
misconduct by reversing convictions. Boyd, 55 F.3d at 241.
The appropriate focus is on whether the improprieties im-
pacted the outcome of the trial, and we will reverse only
if there is a reasonable probability that, in the absence of
the improprieties, the defendant would have been acquitted.
Id. More precisely, we will reverse only if the district court’s
answer to the question posed above was an abuse of dis-
cretion. Id. In the instant case, the improprieties identified
by Smith do not require a new trial. While the pre-trial
disclosure of the tape recordings may have hurt Smith’s
30 Nos. 01-2493, et al.
reputation with his neighbors, we fail to see how the dis-
closure had any effect at all on the outcome of Smith’s case,
considering that the neighbors did not testify at trial or
provide the government with incriminating evidence about
Smith after the disclosure. Smith does not provide the
missing prejudice link in his brief. The failure to disclose
the MCC tape, on the other hand, had some potential for
prejudice. Had the government disclosed the tape before
trial, Smith would have had the opportunity to file a motion
in limine to exclude the tape and, with the benefit of a
briefed motion, the district court may have excluded the
tape. As it turned out, the government did not disclose its
intention to use the tape, Smith objected at trial based on
limited information, and the court allowed the government
to play the tape. Nevertheless, the evidence against Smith
was overwhelming and his coercion defense was flawed. There
is no reasonable probability that pre-trial disclosure of the
tape would have led to an acquittal. The district court did
not abuse its discretion when it denied Smith’s motion to
suppress the wiretap evidence or when it denied Smith’s
motion for a mistrial based on the government’s failure to
disclose the MCC tape.
C. McKinzie’s Brief
McKinzie was charged with conspiracy to distribute co-
caine, two counts of possession with intent to distribute
specific amounts of cocaine, and two counts of using a tele-
phone to facilitate the drug conspiracy. After the district
court severed the two possession with intent to distribute
cocaine counts from the trial, McKinzie went to trial on the
conspiracy and facilitation counts. McKinzie advanced a
buyer-seller defense at trial, and the jury found him not
guilty on the conspiracy count and guilty on the two tele-
phone facilitation counts. Thereafter, McKinzie pleaded
guilty to the possession with intent to distribute counts.
Nos. 01-2493, et al. 31
McKinzie now challenges the sufficiency of the evidence
supporting the telephone facilitation convictions. Because
the government must prove the commission of the underly-
ing offense to obtain a conviction on a charge of telephone
facilitation, United States v. Iennaco, 893 F.2d 394, 396-97
(D.C. Cir. 1990) (Ginsburg, J.), and because he was acquitted
on the underlying conspiracy charge, McKinzie argues that
we must vacate his conviction on the telephone facilitation
counts. McKinzie also maintains that the government
offered no evidence that the April 11, 1998, telephone call
resulted in a drug transaction and little evidence that the
June 7, 1998, conversation led to a drug deal. United States
v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991).
To the extent that McKinzie rests his sufficiency chal-
lenge on the fact that the jury acquitted him of the underly-
ing conspiracy charge and convicted him of the compound
offense (use of a telephone to facilitate the conspiracy), his
position is foreclosed by the Supreme Court’s decision in
United States v. Powell, 469 U.S. 57 (1984). In Powell, a
case that also involved a conviction on a telephone facili-
tation count and an acquittal on an underlying conspiracy
count, the Court held that an acquittal on one count, even
if inconsistent with conviction on another count, does not
invalidate the conviction. Id. at 64-65. The Court explained
that an inconsistent verdict presents a situation where error
has occurred, but that “it is unclear whose ox has been
gored.” Id. at 65. In such situations, the defendant should
not receive a reversal as a matter of course, especially con-
sidering that the acquittal may have been the result of juror
mistake, compromise, or lenity. Id. The Court also stressed
that its holding did not leave criminal defendants like
Powell without a remedy:
[A] criminal defendant already is afforded protection
against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken by
the trial and appellate courts. This review should not be
32 Nos. 01-2493, et al.
confused with the problems caused by inconsistent
verdicts . . . . This review should be independent of the
jury’s determination that evidence on another count
was insufficient.
Id. at 67. Thus, under Powell, we review the sufficiency of
the evidence on McKinzie’s telephone facilitation conviction
independent of the jury’s acquittal on the conspiracy count.
On a sufficiency challenge, the “evidence and all reasonable
inferences that can be drawn from it must be viewed in the
light most favorable to the government.” United States v.
Gardner, 238 F.3d 878, 879 (7th Cir. 2001) (citation omitted).
“The test is whether, after viewing the evidence, ‘any ra-
tional trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” United States v.
Jackson, 300 F.3d 740, 747 (7th Cir. 2002) (quoting Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979)) (emphasis in original).
Section 843(b) prohibits the knowing or intentional use of
a telephone “in committing or in causing or facilitating the
commission of any act or acts constituting a felony [under
subchapter I or II of the Comprehensive Drug Abuse
Prevention and Control Act].” 21 U.S.C. § 843(b). McKinzie’s
sufficiency challenge centers on whether his phone con-
versations with Allen on April 11, 1998, and June 7, 1998,
facilitated the commission of the conspiracy, the charged
underlying offense. We give the term “facilitate” its ordinary
meaning: “to make easier.” United States v. Binkley, 903 F.2d
1130, 1134-36 (7th Cir. 1990). Viewing the evidence in the
light most favorable to the government, we believe that the
jury was entitled to conclude that both phone conversations
facilitated drug transactions and the drug conspiracy.3 Dur
3
We reach this conclusion despite our agreement with McKinzie
that the government’s evidence against him on the conspiracy
count was very weak. A customer like McKinzie can facilitate a
(continued...)
Nos. 01-2493, et al. 33
ing the April 11 conversation, McKinzie told Allen, “I need
to get, uh, two and a quarter,” which Allen understood to
mean two and one-quarter ounces of cocaine. Tr. 1003. Al-
though the usual price for that quantity of drugs was $1200,
Allen agreed to lower the price to $950 to keep McKinzie as
a customer. Tr. 1003-06. Allen told McKinzie, “All right . . . .
You gonna be standing on the block. . . . I’m fitting to ride
through there.” Tr. 1003. McKinzie responded, “[o]kay, I’ll be
right there.” Tr. 1004. Allen understood that he would drive
to Normal Avenue to meet McKinzie and consummate the
drug deal. Id. A rational jury could infer that this phone
conversation, during which Allen and McKinzie discussed drug
type, quantity, price, and the location of the deal, facilitated
a drug transaction. The June 7, 1998, telephone conversa-
tion was similar. Allen asked McKinzie, “For the dollar, or
you trying to go to 125th?” McKinzie replied, “Yeah, for the
dollar,” which Allen understood as a request for two and
one-quarter ounces of crack cocaine for $1,000. Tr. 1008.
McKinzie and Allen set a location for the transaction, and
Allen called Tillman to ask him to take care of the deal.
Tr. 1927-28. Allen later testified that a drug transaction
followed the June 7 conversation with McKinzie. Tr. 1009.
Given the recorded phone conversation and Allen’s inter-
pretation of it, a rational trier of fact could have found that
the June 7 conversation facilitated a drug transaction and
the drug conspiracy. Accordingly, we reject McKinzie’s suffi-
3
(...continued)
drug conspiracy by purchasing drugs from it. United States v.
Dotson, 871 F.2d 1318, 1327 n.3 (6th Cir. 1989) (Guy, J., concur-
ring) (“[N]o court has required the government to prove that the
defendant charged with the ‘facilitating’ offense must be the one
that committed the substantive offense.”); Iennaco, 893 F.2d at
396 (“[T]o obtain a conviction on a charge of telephone facilitation,
the government must prove actual commission (by the defendant
or another person) of the alleged underlying offense”) (emphasis
added).
34 Nos. 01-2493, et al.
ciency of the evidence challenge with respect to the tele-
phone facilitation convictions.
D. Sentencing
The jury’s special verdict in this case attributed at least
5 kilograms of cocaine or 50 grams of cocaine base to the
conspiracy, which yields a base offense level of 32 under
U.S.S.G. § 2D1.1(c)(4) and qualifies defendants for a life
sentence pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and (iii).4
Brim, who pleaded guilty, admitted to responsibility for pow-
der cocaine but denied responsibility for any crack cocaine.
At sentencing, the district court enhanced the defendants’
sentences based on factual findings regarding drug quan-
tities and obstruction of justice. Ector, King, Smith, Keith
McGee, Flozell McGee, and Brim all were assigned base
offense levels of at least 34, and their corresponding sen-
tences were all longer than they would have been based
solely on the jury verdict or their admissions. As we now
know, the district court’s factual findings violated the Sixth
Amendment. United States v. Booker, 125 S. Ct. 738 (2005).
Ector was the only defendant that raised an Apprendi
objection below, and the government has not explained how
the Sixth Amendment error in his sentencing was harmless.
Consequently, we will remand Ector’s case for resentencing.
United States v. Macedo & Contreras, 2005 WL 851501, at *6
(7th Cir. Apr. 14, 2005). Due to the forfeited Sixth Amendment
errors that increased the sentences of King, Smith, Keith
4
Ector objected to the special verdict form on the basis of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000), arguing that the jury must make a defendant-
specific rather than an offense-specific determination as to drug
quantity. We have rejected similar arguments in the past, see, e.g.,
United States v. Smith, 308 F.3d 726, 740-41 (7th Cir. 2002), and
we decline to reconsider those decisions at this time.
Nos. 01-2493, et al. 35
McGee, Flozell McGee, and Brim, we will direct a limited
Paladino remand with respect to their sentences. Banks has
not appealed his sentence. McKinzie’s sentence was based
on the district court’s determination that he qualified as a
career offender, and we discuss below McKinzie’s challenge
to that determination.
King, Keith McGee, and Smith also argue that the district
court erred by denying them two-level reductions for being
minor participants under U.S.S.G. § 3B1.2. This is not a
Booker issue because a role in the offense adjustment would
reduce a defendant’s sentence, not enhance it. United States
v. Miller, 2005 WL 949086, at *5 (7th Cir. Apr. 20, 2005). To
show that a role adjustment is warranted, a defendant must
establish that he was substantially less culpable than the
average participant. U.S.S.G. § 3B1.2, Application Note 3.
We review a district court’s decision to deny a defendant a
downward adjustment for a minor role in an offense for
clear error. United States v. Rodriguez-Cardenas, 362 F.3d
958, 959 (7th Cir. 2004).
This was an unusual case in the sense that the principal
conspirators cooperated with the government and testified
against their underlings, a reverse of the more typical si-
tuation where the subordinates turn on the principals. In
addition, the principals—Allen, Palmore, Samuel Redding,
and Irving Tillman—were prosecuted in a separate indict-
ment. King, Keith McGee, and Smith were undoubtedly less
culpable than Allen, Palmore, Redding, and Tillman. King,
for example, was described by Allen as a “gofer” who
received about $500 per kilogram sold when the operation
was clearing a profit of approximately $31,000 per kilo-
gram. Keith McGee was a middleman, buying drugs from
the operation, selling drugs to customers, and delivering the
customer’s money to the operation. Smith engaged in
numerous drug transactions with Allen for relatively large
quantities of cocaine and crack, and probably has the weakest
argument for a minor role adjustment among the three
36 Nos. 01-2493, et al.
defendants. Unfortunately for King, Keith McGee, and Smith,
the fact that they were less culpable than people like Allen
and Palmore does not establish that they are entitled to a
minor role adjustment. Defendants must be substantially
less culpable than the average participants in the conspir-
acy, not substantially less culpable than the leaders of the
conspiracy. This was a wide-ranging drug conspiracy, and
King, Keith McGee, and Smith all played roles that could be
fairly described as average. Moreover, the role in the
offense adjustment is a fact-intensive inquiry that the
district court is best suited to address in the first instance,
especially after becoming intimately acquainted with the
roles of the members of a drug conspiracy during a three-
week trial. United States v. Mojica, 185 F.3d 780, 790-91
(7th Cir. 1999). Because the record does not convince us that
the district court clearly erred when it found that King,
Keith McGee, and Smith were not substantially less culp-
able than the average participants in the conspiracy, we
affirm the finding.
In his sentencing brief, King maintains that other
defendants with similar roles in the conspiracy fared better
with their ultimate sentences than he did, undercutting the
guidelines’ goal of uniformity in sentencing. This is a credible
argument, given that King, Allen’s “gofer,” was sentenced
to 360 months, which is more than ten years longer than
the highest sentence of the other defendants that went to
trial, and the same sentence that a high-ranking conspirator
received in a related prosecution. United States v. Trennell,
290 F.3d 881 (7th Cir. 2002) (affirming 360-month sentence
of defendant after jury conviction on basis of Allen’s testi-
mony; defendant had withdrawn guilty plea after govern-
ment recommended doubling his sentence compared to other
conspirators); 18 U.S.C. § 3553(a)(6) (directing district
judge’s to consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who
have been found guilty of similar conduct.”). Nonetheless,
Nos. 01-2493, et al. 37
we think that this argument is best directed to the district
court on limited remand, particularly considering that
King’s sentence was at the bottom of the applicable sentenc-
ing range and the district judge may have imposed a
different sentence had he known the guidelines were merely
advisory.
McKinzie’s 210-month sentence was driven by the district
court’s determination that three prior state court drug con-
victions qualified him as a career offender under U.S.S.G.
§ 4B1.1. Without the career offender enhancement, McKinzie
would have had an adjusted offense level of 30 and a
category III criminal history for a sentencing range of 121-
151 months. McKinzie argues that he cannot be considered
a career offender because his state court convictions are re-
lated to his federal convictions. United States v. Garecht,
183 F.3d 671, 675 (7th Cir. 1999). The district court rejected
his argument and sentenced him as a career offender. As-
suming that the court relied on appropriate sources in making
the determination, we see no error in the district court’s
conclusion that the state court convictions were unrelated to
the federal convictions and qualify McKinzie as a career
offender. The caveat about the sources is important after
the Supreme Court’s recent decision in Shepard v.
United States, 125 S. Ct. 1254 (2005), where the Court held
that sentencing courts may not look to police reports or com-
plaint applications to determine whether an earlier guilty
plea for burglary amounted to a “generic burglary” that
counts as a “violent felony” under the Armed Career
Criminal Act. See 18 U.S.C. § 924(e) (mandating a minimum
15-year sentence for anyone possessing a firearm after three
prior drug offenses or violent felonies). According to the
Shepard Court, later courts considering such questions are
“generally limited to examining the statutory definition,
charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard, 125 S. Ct.
38 Nos. 01-2493, et al.
at 1257. The Court’s holding applies with equal force to the
guidelines’ career offender provision, which increases a
defendant’s offense level and corresponding sentence if the
defendant, among other requirements not at issue here, has
“at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.” U.S.S.G. § 4B1.1.
See also United States v. Ngo, 2005 WL 1023034 (7th Cir.
May 3, 2005) (ordering a limited remand where district
court considered sources that were not authorized under
Shepard in finding that defendant was a career offender).
In the instant case, it is unclear what sources the district
judge relied on to determine that McKinzie’s state convic-
tions and federal convictions were unrelated. At McKinzie’s
sentencing, the district court listened to the parties’ argu-
ments and then stated, “I reluctantly conclude that the
government is absolutely correct and that the career offender
provision needs to be applied . . . . I think it would be over-
inclusive to conclude that these other convictions . . . are
part of this relevant conduct.” McKinzie Sentencing Tr. at 22.
McKinzie attached the state court plea transcripts to his
sentencing memorandum, which are sources of “conclusive
significance” under Shepard, and those transcripts may be
enough to establish that McKinzie’s state convictions were
unrelated to his federal convictions. R. 509; Shepard, 125
S. Ct. at 1262. However, we do not know if the district court
relied on the state court plea transcripts. Moreover, the
government referred to a police report at sentencing, which
is a source that may not be considered under Shepard.
McKinzie Sentencing Tr. at 18. Because of our uncertainty
about the sources relied on by the district court, we will
order a limited Paladino-style remand so that the district
judge can inform us if he reached his conclusion about
McKinize’s career offender status based on sources of “con-
clusive significance” under Shepard and whether he would
reimpose his original sentence had he known that the
guidelines were not mandatory. See United States v. White,
Nos. 01-2493, et al. 39
2005 WL 1023032, at *7 (7th Cir. May 3, 2005) (“[T]he mere
mandatory application of the Guidelines—the district
court’s belief that it was required to impose a Guidelines
sentence—constitutes error.”). If the judge states that he
relied on police reports or other sources that are improper
under Shepard or that he would have imposed a different
sentence had he known that the guidelines were advisory,
then we will vacate the original sentence and remand for
resentencing.
III. Conclusion
For the reasons stated herein, we AFFIRM the defendants’
convictions, VACATE and REMAND Ector’s sentence, and
order a LIMITED REMAND with regard to the sentences of
King, Smith, Keith McGee, Flozell McGee, Brim, and
McKinzie pursuant to the procedure set forth in Paladino.
40 Nos. 01-2493, et al.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-3-05