United States v. McLee, Rodney ( 2006 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 04-1507 & 04-1535
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    RODNEY MCLEE and
    VICKI MURPH-JACKSON,
    Defendants-Appellants.
    ____________
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 02 CR 635—Charles P. Kocoras, Judge.
    ____________
    ARGUED FEBRUARY 22, 2005—DECIDED FEBRUARY 2, 2006
    ____________
    Before KANNE, WOOD, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. A jury convicted Rodney McLee
    of cocaine conspiracy and related drug-trafficking crimes
    and also two firearms offenses. McLee’s wife and
    codefendant, Vicki Murph-Jackson, was convicted with him
    on the drug charges. Both received lengthy prison sen-
    tences. Their appeals have been consolidated, and numer-
    ous trial and sentencing errors are alleged. McLee argues
    the evidence was insufficient to convict him on the firearms
    charges. Both defendants contend that certain evidence
    predating the conspiracy was erroneously admitted, that
    their right of cross-examination was erroneously restricted,
    and that the government’s wiretap evidence should have
    2                                  Nos. 04-1507 & 04-1535
    been excluded. They also argue that factual findings made
    by the district court at sentencing were clearly erroneous.
    Finally, McLee challenges his sentence under United States
    v. Booker, 
    543 U.S. 220
     (2005). We affirm the defendants’
    convictions and order a limited remand as to both defen-
    dants in accordance with United States v. Paladino, 
    401 F.3d 471
     (7th Cir. 2005).
    I. Background
    Trial evidence established that McLee and Murph-
    Jackson were intimately involved in all aspects of a large-
    scale cocaine distribution operation run from the south side
    of Chicago by a man named Kevin Turner. Turner and other
    subordinate members of the conspiracy were indicted along
    with McLee and Murph-Jackson. Turner pleaded guilty to
    the conspiracy charge and testified against McLee and
    Murph-Jackson under the terms of his plea agreement.
    Others charged in the conspiracy— Steve Brown, Dymica
    Hilt, and Kevin Turner’s brother Prince Turner, Jr.—also
    entered into plea agreements with the government and
    testified for the prosecution.
    Testimony established that upon Turner’s release from
    federal prison on drug-related charges in 1996, he quickly
    resumed his previous occupation as a seller of cocaine.
    Turner enlisted the services of his friend McLee and later
    McLee’s girlfriend and future wife, Murph-Jackson, both of
    whom participated in the operation by delivering drugs to
    customers, packaging and storing drugs for later delivery,
    and collecting money from customers. Specifically, Turner
    testified that he would purchase large quantities of cocaine
    from his suppliers—as much as 50 kilograms a month—and
    store it at the home occupied by McLee and Murph-Jackson.
    McLee and Murph-Jackson, sometimes assisted by others,
    would weigh and divide the cocaine into smaller amounts
    and package it for future sale. McLee also cooked cocaine
    Nos. 04-1507 & 04-1535                                     3
    into crack. When Turner arranged a sale with a purchaser,
    he would contact McLee and either McLee or Murph-
    Jackson would deliver the drugs, collect the money, and
    hold it until arrangements could be made for its trans-
    fer to Turner.
    McLee and Murph-Jackson were paid a salary by Turn-
    er for their services. McLee was originally Turner’s right-
    hand man and the person trusted to have control over the
    cocaine during the period between purchase and sale.
    However, toward the end of 1998, when Turner became
    convinced that McLee was skimming cocaine for sale to
    his own customers, McLee was demoted from his “man-
    agerial” position and replaced in this capacity by Murph-
    Jackson. From this point until the conspirators were
    arrested in 2002, McLee still packaged drugs, made deliver-
    ies, and collected money, but did so under the supervision
    of his wife.
    Two or three times a week from late 1997 to July of 1999,
    Turner sold cocaine in a wholesale fashion to another drug
    dealer named Vernon Everett. Everett testified that on
    some occasions McLee would deliver cocaine he had ordered
    from Turner, often accompanied by Murph-Jackson. On
    other occasions Everett would travel to various locations
    controlled by Turner where Everett would witness McLee
    weighing out the drugs and/or standing guard over the
    process with a handgun tucked in the waistband of his
    pants. On one occasion, Everett and Turner met at a
    designated location and it was Murph-Jackson, unaccompa-
    nied by McLee, who showed up to deliver the kilogram of
    cocaine Everett had ordered.
    In an event not directly related to the drug conspiracy, on
    May 19, 1998, Officer Ramirez of the Chicago Police
    Department was dispatched to a location on the south
    side of the city in response to a complaint of a man wielding
    a handgun. When the officer arrived on the scene, he saw
    4                                   Nos. 04-1507 & 04-1535
    about ten men congregated together on the sidewalk. One
    of the men, later identified as McLee, held what the officer
    described as a .45-caliber, blue steel handgun in his hand.
    When McLee saw the squad car approaching, he put the
    gun into the waistband of his pants and fled through a
    series of residential backyards. McLee was the only one
    of the group to flee upon seeing the police.
    Officer Ramirez drove around the block and caught up
    with McLee less than a minute after he had fled. The officer
    ordered McLee to the ground and searched him but did not
    find a gun. After McLee had been handcuffed and trans-
    ferred to the custody of another officer, Ramirez searched
    the path by which McLee had fled and discovered a loaded
    .45 handgun lying in the grass in one of the yards McLee
    had crossed during his flight. At the time of this incident,
    McLee was a convicted felon. Turner testified that he had
    been with McLee earlier that same day and McLee was
    carrying a black gun with a brown handle that Turner had
    given to him. Turner testified that McLee “often” carried a
    firearm on drug transactions “to secure himself and secure
    me.”
    At some point during 2001, Murph-Jackson and McLee
    separated and McLee moved out of the couple’s home in the
    Chicago suburb of Calumet City, leaving Murph-Jackson
    and her children as the only regular daily residents of the
    home. In the summer of 2001, a confidential informant
    identified Kevin Turner as a drug trafficker to agents
    employed by the Drug Enforcement Administration
    (“DEA”). Using information provided by the informant, the
    DEA made three controlled cocaine buys from Turner in
    2001.
    Agents then applied for and received court authoriza-
    tion to wiretap two telephones used primarily by Turner. A
    total of 1,800 calls were subsequently intercepted, and 51 of
    those calls were presented to the jury at trial, both
    Nos. 04-1507 & 04-1535                                       5
    in transcribed and audio forms. DEA Special Agent
    Wise testified that the intercepted telephone calls were
    monitored by DEA agents and simultaneously recorded onto
    magneto-optical disks located at the DEA offices in down-
    town Chicago. When the period of wiretap authorization
    expired, the disks were placed into an evidence bag, sealed,
    and delivered to the Chief Judge of the District Court for
    the Northern District of Illinois.
    Law enforcement authorities brought an end to Kevin
    Turner’s drug-dealing enterprise on February 21, 2002.
    On that day a Chicago police officer working with the
    DEA in the ongoing investigation was detailed to a team
    maintaining surveillance of McLee. The officer watched
    McLee leave a tavern and enter a waiting vehicle driven
    by Murph-Jackson. The officer then followed that vehicle for
    several blocks until it parked on a city street for a rendez-
    vous with three men in another car. The officer observed
    McLee get out of Murph-Jackson’s car and hand a plastic
    bag to the driver of the second vehicle. McLee then returned
    to his wife’s car and they left the scene. Another officer in
    the surveillance team followed the second car as it, too, left
    the area; a third officer in a marked squad car was eventu-
    ally instructed to pull the second car over. The driver was
    identified as Juan Martinez. Martinez consented to a search
    and police recovered the plastic bag that had been trans-
    ferred by McLee. It contained $47,060 in cash. Turner later
    identified Martinez as his principal supplier of cocaine
    during the latter stages of the conspiracy.
    Officers were then dispatched to Murph-Jackson’s
    Calumet City residence and waited there until she arrived
    home. Murph-Jackson consented to a search of the home. In
    the attic officers found a blue, plastic storage box containing
    37 one-kilogram “bricks” of cocaine and a loaded 9mm
    Beretta handgun. Officers also recovered approximately
    3 kilograms of cocaine and 403 grams of crack from Murph-
    Jackson’s bedroom. At trial Turner testified that he and
    6                                   Nos. 04-1507 & 04-1535
    McLee had delivered the blue storage container to the
    Calumet City home earlier in the month. Murph-Jackson’s
    fifteen-year-old daughter, however, offered conflicting
    testimony on this point; she said that Turner, unaccompa-
    nied by McLee, brought the blue storage box to the home.
    McLee was charged with conspiracy to deliver cocaine and
    crack, possession of cocaine and crack with intent to deliver,
    possession of a firearm in furtherance of a drug-trafficking
    crime, use of a telephone to facilitate a narcotics offense,
    and felon in possession of a firearm, contrary to 
    21 U.S.C. §§ 846
    , 841(a)(1), 843(b), and 
    18 U.S.C. §§ 924
    (c)(1), 922(g).
    Murph-Jackson was charged with the three drug crimes and
    the drug-related firearms offense. McLee was convicted by
    a jury on all counts. Murph-Jackson was convicted of the
    drug charges but acquitted on the § 924(c) drug-related
    firearms offense. McLee was sentenced to a total of 322
    months in prison, and Murph-Jackson received a sentence
    of 262 months.
    II. Discussion
    A. Gun Possession in Furtherance of a Drug Crime
    The jury found McLee guilty of possession of a firearm
    in furtherance of a drug-trafficking offense, contrary to
    
    18 U.S.C. § 924
    (c)(1) and (2). The gun in question was
    the 9mm Beretta found with the cocaine in the blue storage
    box in the attic of Murph-Jackson’s home. McLee argues
    there was insufficient evidence to prove possession because
    he was not living in the home at the time of the search and
    there was no evidence that he ever had actual physical
    possession of the gun.
    A challenge to the sufficiency of the evidence carries
    a “daunting” burden. United States v. Hicks, 
    368 F.3d 801
    ,
    804 (7th Cir. 2004). The evidence is viewed in the light most
    favorable to the prosecution, and the verdict must be upheld
    Nos. 04-1507 & 04-1535                                     7
    if any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt. 
    Id.
     at 804-
    05. We will overturn a conviction based upon insufficient
    evidence “only if the record is devoid of evidence from which
    a reasonable jury could find guilt beyond a reasonable
    doubt.” United States v. Curtis, 
    324 F.3d 501
    , 505 (7th Cir.
    2003).
    McLee is correct that the government presented no
    evidence that he ever possessed the Beretta on his person
    or that he was living in Murph-Jackson’s Calumet City
    home at the time the gun was found. But neither of these
    facts was necessary to a conviction on this count. Construc-
    tive possession may be established through evidence
    demonstrating that the defendant had the power and
    intention to exercise dominion and control over the firearm,
    either directly or through others. United States v. Walls,
    
    225 F.3d 858
    , 864 (7th Cir. 2000); United States v. Thomas,
    
    321 F.3d 627
    , 636 (7th Cir. 2003). If there was sufficient
    evidence from which the jury could conclude that McLee
    had the intent to exercise dominion and control over the
    gun, it makes no difference that McLee was no longer living
    in the home and no one testified to seeing him with the gun.
    Viewed in the light most favorable to the verdict, the
    pertinent evidence adduced at trial established that
    McLee and Murph-Jackson played prominent roles in the
    Turner drug conspiracy, storing cocaine purchased by
    Turner, packaging it, delivering the drugs to customers, and
    collecting large sums of money. The evidence further
    established that McLee often carried a gun in the course
    of carrying out these duties as a member of the conspir-
    acy. The Beretta was found in the storage box with
    37 kilograms of cocaine in the attic of the home where much
    of this activity was taking place. McLee, together with
    Turner, had delivered the storage box to the resi-
    8                                      Nos. 04-1507 & 04-1535
    dence before its eventual discovery by police.1 Testimony
    also established that although McLee and Murph-Jackson
    were separated at the time the gun was seized, McLee
    was often observed by surveillance officers coming and
    going from the Calumet City home during the pertinent
    time frame—including earlier in the day on which the
    search was performed.
    A reasonable jury could infer from this evidence that
    the gun belonged to or was controlled by either McLee or
    Turner. Either inference provides a sufficient basis for
    McLee’s conviction. If the jury concluded that the gun
    was McLee’s, or under his control, the government had
    directly proven his constructive possession of the weapon.
    If the jury alternatively concluded that the gun be-
    longed to Turner, or was under his control, McLee’s convic-
    tion is sustainable under the Pinkerton doctrine,2 pursuant
    to which a defendant may be found guilty of violating
    § 924(c) if a coconspirator possessed a gun in furtherance of
    the drug conspiracy and it was reasonably foreseeable to the
    defendant that his accomplice would do so. See United
    States v. Chairez, 
    33 F.3d 823
    , 826-27 (7th Cir. 1994) (“If
    the government proved beyond a reasonable doubt that [the
    defendant] was a member of a conspiracy at the time that
    it was reasonably foreseeable that a member of a conspiracy
    used or carried the firearm in furtherance of the conspiracy,
    then [the defendant] might be found guilty of violating
    § 924(c).”); see also United States v. Goines, 
    988 F.2d 750
    ,
    774 (7th Cir. 1993); United States v. Carson, 
    9 F.3d 576
    , 591
    1
    Drawing inferences in favor of the verdict, and not second-
    guessing the jury’s credibility determinations, we can only assume
    that the jury credited Turner’s testimony that he and McLee
    delivered the box together, rather than the testimony of McLee’s
    stepdaughter that Turner delivered the box alone.
    2
    The doctrine takes its name and derives its authority from
    Pinkerton v. United States, 
    328 U.S. 640
     (1946).
    Nos. 04-1507 & 04-1535                                           9
    (7th Cir. 1993). The jury was instructed as to McLee’s
    potential Pinkerton liability with respect to this count of the
    indictment. We conclude that the evidence was sufficient to
    sustain McLee’s conviction for violating § 924(c).
    B. Felon in Possession of a Firearm
    McLee’s conviction for being a felon in possession of a
    firearm involves a different gun—the one Officer Ramirez
    saw in McLee’s hands on May 19, 1998, and which he
    recovered from a yard McLee traversed during the ensuing
    foot chase. McLee challenges the sufficiency of the evidence
    on this count, arguing that nothing connected him to the
    specific gun recovered by Officer Ramirez.3 McLee relies
    solely on a perceived discrepancy between the characteris-
    tics of the firearm described and found by the officer and
    Turner’s description of the gun he saw in McLee’s posses-
    sion earlier on the same day.
    Turner testified that he was with McLee on the day in
    question and saw McLee in possession of a “black gun with
    a brown handle.” The gun recovered by Officer Ramirez and
    shown to the jury was described by Ramirez as being made
    of “blue steel.” This discrepancy is not enough to disturb the
    jury’s verdict. Evidence is not reweighed on appeal. United
    States v. Bowman, 
    353 F.3d 546
    , 552 (7th Cir. 2003).
    Resolution of this sort of evidentiary inconsistency is
    exclusively for the jury. Even if we indulge the assumption
    that Turner’s recollection was accurate on this specific
    point, there is absolutely nothing preventing a rational fact
    finder from concluding that McLee had his hands on two
    3
    Unlike the § 924(c) charge discussed above, a felon in possession
    charge pursuant to § 922(g) may not be proven by way of
    the Pinkerton doctrine of vicarious coconspirator liability.
    United States v. Walls, 
    225 F.3d 858
    , 864-66 (7th Cir. 2000).
    10                                      Nos. 04-1507 & 04-1535
    guns on the day in question, given the testimony that
    McLee regularly armed himself in connection with his role
    in the drug conspiracy.
    More important is the sufficiency of Officer Ramirez’s
    testimony that he observed McLee with a .45-caliber pistol
    in his hand, saw McLee stick the gun in his pants and run,
    observed the route by which McLee was attempting to
    flee, and within minutes of McLee’s arrest found a .45-
    caliber handgun along the very same route McLee had
    traveled. This evidence is sufficient to sustain McLee’s
    conviction for being a felon in possession of a firearm.
    C. Evidence of Preconspiracy Criminal Conduct
    The indictment concerned itself with the drug-trafficking
    enterprise that Kevin Turner initiated upon his release
    from federal prison in 1996.4 The activity that had origi-
    nally landed Turner in prison was, itself, a drug-trafficking
    operation. Over the defendants’ objection, the district court
    permitted Turner to offer limited testimony that McLee had
    assisted him in drug-dealing activity that predated the time
    frame alleged in the indictment.5 Specifically, as a prelude
    to his testimony concerning the conspiracy charged in the
    indictment, Turner testified that he originally started
    selling cocaine in 1988, and that McLee—his friend since
    childhood—had assisted him by “brokering transactions,”
    “going to get customers,” and delivering money during the
    period 1988-1990.
    4
    Count One of the indictment charged that the conspiracy
    lasted from “in or about 1996, until on or about February 21,
    2002.”
    5
    McLee also complains about the admission of preconspiracy
    testimony offered by witnesses other than Turner, but our re-
    view of the record reveals that only Turner testified to any activity
    by McLee that occurred prior to 1996.
    Nos. 04-1507 & 04-1535                                         11
    Immediately prior to this line of questioning, the court
    instructed the jury as follows: “I will instruct the jury
    that this is prior to the period charged in the indictment.
    But you may consider it as background information. And its
    relevance has to do with the relationship of the parties, but
    it is not directly relevant to the charges in this case.” The
    court also included the following instruction in its closing
    instructions to the jury: “You have heard evidence of acts of
    . . . Rodney McLee other than those charged in the indict-
    ment. You may consider this evidence only on the question
    of the relationship of the participants. You should consider
    this evidence only for this limited purpose.”
    McLee argues that the admission of Turner’s testimony
    was erroneous because it was not “inextricably intertwined”
    with the charged offense and thus should have been
    excluded as impermissible “other crimes” character evidence
    pursuant to FED. R. EVID. 404(b).6 The district court did not
    abuse its discretion in admitting this testimony. United
    States v. Hite, 
    364 F.3d 874
    , 881 (7th Cir. 2004) (evidentiary
    rulings are reviewed for abuse of discretion). Evidence of
    uncharged criminal activity does not implicate the charac-
    ter/propensity prohibition of Rule 404(b) if the evidence is
    “intricately related” to the facts and circumstances of the
    charged offense. United States v. Gougis, Nos. 04-1345, 04-
    1508 & 04-1535, 
    2005 WL 3534195
     (7th Cir. Dec. 27, 2005);
    United States v. Lahey, 
    55 F.3d 1289
    , 1295 (7th Cir. 1995);
    United States v. King, 
    126 F.3d 987
    , 995 (7th Cir. 1997).
    Evidence falls within this doctrine—also referred to as the
    “inextricably intertwined” doctrine—if it helps to complete
    6
    FED. R. EVID. 404(b) provides in pertinent part: “Evidence of
    other crimes, wrongs, or acts is not admissible to prove the
    character of a person in order to show action in conformity
    therewith. It may, however, be admissible for other purposes, such
    as proof of motive, opportunity, intent, preparation, plan, knowl-
    edge, identity, or absence of mistake or accident . . . .”
    12                                   Nos. 04-1507 & 04-1535
    the story of the crime on trial, if its absence would create a
    chronological or conceptual void in the story of the crime, or
    if it is so blended or connected that it incidentally involves,
    explains the circumstances surrounding, or tends to prove
    an element of the charged crime. Gougis, 
    2005 WL 3534195
    ,
    at *5; Hite, 
    364 F.3d at 881
    ; United States v. Ojomo, 
    332 F.3d 485
    , 489 (7th Cir. 2003); United States v. Senffner, 
    280 F.3d 755
    , 764 (7th Cir. 2002).
    Here, Turner’s testimony helped to complete the story
    of how the conspiracy between Turner and McLee began
    and filled what would otherwise have been a chron-
    ological and conceptual void in the jury’s understanding
    of the genesis and nature of their relationship. The evidence
    explained why Turner anointed McLee as the most trusted
    member of his inner circle almost immediately upon being
    released from federal prison and reentering the drug trade.
    The court’s limiting instructions, both before the jury heard
    this testimony and at the close of the case, properly circum-
    scribed the purpose for which the evidence was admitted.
    Admission of this evidence was not error.
    D. Admission of Hearsay from Nonconspirators
    McLee and Murph-Jackson argue that the district court
    erred in admitting testimony under the exception to the
    hearsay rule for statements made by coconspirators. FED. R.
    EVID. 801(d)(2)(E).7 This argument is woefully undeveloped.
    McLee cites numerous pages of the trial transcript and then
    baldly asserts that somewhere on these pages we may find
    hearsay that either predates the conspiracy or that came
    7
    The entirety of the argument section of Murph-Jackson’s brief
    states: “All issues raised and arguments presented in his brief
    by co-defendant, Rodney McLee, applicable to this co-defen-
    dant, Vicki Murph-Jackson are hereby adopted.”
    Nos. 04-1507 & 04-1535                                       13
    from witnesses who were not coconspirators. He makes no
    attempt to identify the particular statements he would like
    to put at issue or how any particular statement was prejudi-
    cial to his defense. He wraps up his one-page argument by
    acknowledging that standing alone, admission of this
    supposed hearsay was harmless, but that when viewed in
    combination with Turner’s preconspiracy testimony dis-
    cussed above, the hearsay created “a false image about the
    amount of drugs McLee was involved in.”
    The weakness of this argument is difficult to over-
    state. First, “it is not the obligation of this court to research
    and construct the legal arguments open to parties, espe-
    cially when they are represented by counsel.” United States
    v. Holm, 
    326 F.3d 872
    , 877 (7th Cir. 2003). In any event,
    our cursory examination of the transcript pages cited by
    McLee reveals that on none of these pages is any witness
    testifying about either McLee or Murph-Jackson. Nor was
    there any objection, leaving only plain error review. We
    decline to undertake that analysis on so undeveloped an
    argument.
    E. Limitation on Cross-Examination
    One of those originally charged in the indictment was
    Prince Turner, Sr., father of Kevin and Prince Turner, Jr.
    Approximately five weeks prior to trial, the government
    dropped all charges against Prince Turner, Sr. Two weeks
    later, the government moved in limine to preclude the
    defendants from “making any arguments based on the
    government’s decisions not to charge other individuals
    who conceivably could have been charged and to dismiss the
    indictment as to Prince Turner, Sr.” The defendants
    apparently did not respond to this motion. Based on events
    that transpired during the trial, it appears that the motion
    was granted, although the parties have not provided us
    with any record of the court’s ruling. During cross-examina-
    14                                   Nos. 04-1507 & 04-1535
    tion of Prince Turner, Jr.—who, like his brother Kevin,
    pleaded guilty and testified pursuant to a plea agree-
    ment—the district judge made the following statement at a
    sidebar conference:
    And I want to make it plain now to everybody if there
    is any mention before this jury about his father’s
    charges and later dismissal, I will hold that lawyer in
    contempt. That is off limits based on a pretrial ruling.
    We are not going to deviate from that. And these
    questions do not elicit any additional probative value as
    to his motive and bias and court the danger that we are
    going to get into his father’s case. It is entirely proper
    to ask, as has been asked by counsel, about his father’s
    participation and did he do this and do that. There is
    nothing wrong with that. But the charges that were
    dismissed are decisions by the U.S. Attorney’s office and
    do not add anything to this case and are not properly
    before this jury.
    McLee and Murph-Jackson argue on appeal that the
    district court inhibited their right to confront the witnesses
    against them about a possible motivation for their testi-
    mony—specifically, they suggest that Kevin and Prince
    Turner, Jr., agreed to plead guilty and testify in exchange
    for the dismissal of charges against their father. The
    government responds that the charges against Prince
    Turner, Sr., were dismissed before the Turner brothers
    decided to plead guilty and cooperate with the prosecution,
    and there is not a shred of evidence from which to infer any
    connection between the dismissal of the charges and their
    agreement to testify.
    The Sixth Amendment guarantees a defendant the
    right to cross-examine witnesses, and “the exposure of a
    witness’ motivation in testifying is an important function of
    the constitutionally protected right of cross-examination.”
    Delaware v. Van Arsdall, 
    475 U.S. 673
    , 678-79 (1986).
    Nos. 04-1507 & 04-1535                                   15
    However, the right of cross-examination is not unfettered,
    and trial judges have broad discretion to impose reasonable
    limits on cross-examination based on concerns about
    “harassment, prejudice, confusion of the issues, the wit-
    nesses’ safety, or interrogation that is repetitive or only
    marginally relevant.” United States v. Cameron, 
    814 F.2d 403
    , 406 (7th Cir. 1987) (quoting Van Arsdall, 
    475 U.S. at 679
    ). Moreover, we have held that once a witness has been
    exposed through cross-examination as having a motive to
    lie, a district court enjoys greater freedom to limit cross-
    examination that merely seeks to add additional layers of
    motivation to those already established:
    [O]nce this core function [of the Sixth Amendment] is
    satisfied by allowing cross-examination to expose a
    motive to lie, it is of peripheral concern to the Sixth
    Amendment how much opportunity defense counsel gets
    to hammer that point home to the jury. The trial court
    may preclude “cumulative and confusing cross-examina-
    tion into areas already sufficiently explored to permit
    the defense to argue personal bias and testimonial
    unreliability.”
    ....
    “When reviewing the adequacy of a cross-examination,
    the question is whether the jury had sufficient infor-
    mation to make a discriminating appraisal of the
    witness’s motives and bias.”
    United States v. Nelson, 
    39 F.3d 705
    , 708 (7th Cir. 1994)
    (quoting United States v. Robinson, 
    832 F.2d 366
    , 373 (7th
    Cir. 1987) and United States v. DeGudino, 
    722 F.2d 1351
    ,
    1354 (7th Cir. 1983)).
    Here, there was no shortage of cross-examination expos-
    ing the Turner brothers’ motive to lie. The jury heard
    exhaustive detail about the brothers’ plea agreements and
    knew that those plea bargains could have influenced them
    to testify for the prosecution in an effort to obtain more
    16                                  Nos. 04-1507 & 04-1535
    favorable sentencing recommendations. Kevin Turner was
    questioned about his agreement to plead guilty and testify
    in order to avoid a possible life sentence. The defense was
    permitted great leeway to ask, repeatedly and in various
    ways, whether Turner would “do anything”—including give
    false testimony—to avoid the possibility of life in prison.
    The same testimony was elicited from Prince Turner,
    Jr.—that he struck a deal to testify as a means of eliminat-
    ing the possibility of life imprisonment. The jury had more
    than enough information to make a “discriminating ap-
    praisal” of the Turner brothers’ motives for testifying
    against McLee and Murph-Jackson.
    Given that the possible biases of Kevin and Prince
    Turner, Jr., were exposed and explored, the district court
    was within its discretion to exclude evidence of the
    U.S. Attorney’s charging decisions regarding their father.
    There is no evidence suggesting a link between the dis-
    missal of the charges against the father and the plea
    agreements of the sons; any inference of bias on this basis
    would have been entirely speculative. If the defense had
    been permitted to invite such speculation by the jury, the
    prosecution may well have felt compelled to present evi-
    dence explaining its decision to dismiss the charges against
    Prince Turner, Sr.—a potentially misleading diversion the
    district court justifiably chose to avoid.
    F. Necessity of Wiretaps
    Prior to trial, McLee and Murph-Jackson moved to
    suppress the evidence obtained from wiretaps on Kevin
    Turner’s telephones on the ground that the govern-
    ment failed to show, when applying for judicial authoriza-
    tion to conduct the surveillance, that the wiretaps were
    “necessary” pursuant to 
    18 U.S.C. § 2518
    (1)(c). Specifically,
    the defendants argued that the government had amassed
    “more than enough” evidence to indict them prior to
    Nos. 04-1507 & 04-1535                                        17
    obtaining the wiretap order, thus rendering the wire-
    tap unnecessary to the prosecution. The motion was
    denied and they challenge the denial on appeal.
    The statute in question provides a checklist of informa-
    tion that must be included in an application for an order
    authorizing the interception of telephonic communica-
    tions. Subsection (1)(c) requires: “[A] full and complete
    statement as to whether or not other investigative proce-
    dures have been tried and failed or why they reason-
    ably appear to be unlikely to succeed if tried or to be too
    dangerous.”8
    This section of the statute was not intended to ensure
    that wiretaps are used only as a last resort in an inves-
    tigation, but rather that they are “not to be routinely
    employed as the initial step” in a criminal investigation.
    United States v. Thompson, 
    944 F.2d 1331
    , 1340 (7th Cir.
    1991) (quoting United States v. Giordano, 
    416 U.S. 505
    , 515
    (1974)). The rule in this circuit is that the government’s
    burden of establishing compliance with § 2518(1)(c) “is not
    great,” and that the requirement of exhausting “other
    investigative procedures” prior to obtaining a wiretap is
    “reviewed in a practical and common-sense fashion.” United
    States v. Plescia, 
    48 F.3d 1452
    , 1463 (7th Cir. 1995); United
    States v. Zambrana, 
    841 F.2d 1320
    , 1329 (7th Cir. 1988);
    United States v. Anderson, 
    542 F.2d 428
    , 430 (7th Cir.
    1976). To receive a wiretap order, the government need not
    demonstrate that prosecution would be impossible without
    it or that evidence possibly sufficient for indictment could
    not conceivably be obtained through other means. Plescia,
    8
    The statute goes on to state that a judge may enter an ex parte
    order authorizing the interception of wire, oral, or electronic
    communications if he or she finds, among other things, that
    “normal investigative procedures have been tried and have
    failed or reasonably appear to be unlikely to succeed if tried or
    to be too dangerous.” 
    18 U.S.C. § 2518
    (3)(c).
    18                                  Nos. 04-1507 & 04-1535
    
    48 F.3d at 1463
    . We have upheld the “necessity” of wiretap
    orders on the basis that investigators were “having trouble
    fingering other members of the conspiracy,” United States
    v. Farmer, 
    924 F.2d 647
    , 652 (7th Cir. 1991), and that the
    wiretaps “allowed the government to ascertain the extent
    and structure of the conspiracy.” Plescia, 
    48 F.3d at 1463
    .
    A finding of necessity is reviewed for abuse of discretion,
    with great deference given to the determination made
    by the issuing judge. Zambrana, 
    841 F.2d at 1329-30
    .
    The affidavit supporting the issuance of the wiretap order
    in this case stated that traditional investigative techniques
    had met with “some success” but that tapping Turner’s
    telephones had become necessary because investigators had
    been unable, through the use of traditional techniques, to
    establish the identities of all those participating in the
    conspiracy. The truth of this assertion was borne out by
    subsequent events—the identity of Juan Martinez, Turner’s
    primary supplier of cocaine and an indicted coconspirator,
    was learned only through the intercepted telephone commu-
    nications. Further, the record demonstrates that the roles
    played by Murph-Jackson and Steve Brown in the conspir-
    acy were revealed to investigators only after they listened
    in on Turner’s telephone calls. Despite McLee’s assertion to
    the contrary, the fact that the government may have been
    able to indict him in the absence of evidence obtained
    through the use of a wiretap does not preclude a finding of
    necessity under § 2518(1)(c). The government’s demon-
    strated need for a wiretap as a means of identifying all
    coconspirators and the roles they occupied in the structure
    of the conspiracy is sufficient for a finding of “necessity”
    under the statute.
    G. Admissibility of Wiretap Evidence
    In another pretrial motion, McLee and Murph-Jackson
    sought to suppress the evidence obtained through the taps
    Nos. 04-1507 & 04-1535                                      19
    on Turner’s telephones on the basis that the government
    failed to seal the original recordings of the intercepted calls,
    which they claim is required by 
    18 U.S.C. § 2518
    (8)(a). The
    motion was denied by the district court and the argument
    is renewed on appeal.
    The statute on which the defendants’ argument is pre-
    mised provides as follows:
    The contents of any wire, oral, or electronic communica-
    tion intercepted by any means authorized by this
    chapter shall, if possible, be recorded on tape or wire or
    other comparable device. The recording of the contents
    of any wire, oral, or electronic communication under
    this subsection shall be done in such way as will protect
    the recording from editing or other alterations. Immedi-
    ately upon the expiration of the period of the order, or
    extensions thereof, such recordings shall be made
    available to the judge issuing such order and sealed
    under his directions.
    ....
    Duplicate recordings may be made for use or disclo-
    sure pursuant to the provisions of subsections (1) and
    (2) of section 2517 of this chapter for investigations.
    
    18 U.S.C. § 2518
    (8)(a). McLee and Murph-Jackson con-
    tend that this statute requires the government to present
    the district court with the “original” recordings for seal-
    ing and that the recordings that were sealed in this case
    run afoul of the statutory requirements because they
    were not the “originals.”
    The record reflects that the intercepted phone calls in this
    case were processed in the following manner: Telephone
    calls being monitored by the DEA’s Chicago office—from all
    ongoing wiretap investigations, not just this one—are
    initially directed to a single computer hard drive located in
    that office. This hard drive, according to the government’s
    20                                  Nos. 04-1507 & 04-1535
    terminology, is a “buffer” or “temporary holding site” for all
    intercepted communications. Although the storage capacity
    of the hard drive buffer is “relatively large and thus typi-
    cally would not fill to capacity,” the system is designed to
    overwrite previously stored audio with new audio in the
    event the drive becomes filled to capacity.
    When a telephone call enters this system, the buffer: 1)
    stores the actual audio of the telephone call in an encoded
    form; 2) generates “session data” comprised of a session
    number, date, start time, and end time; and 3) generates
    “pointers” for the call, described by the government as “a
    decoding map that the system can later use to decode
    the encoded audio portion on the hard drive buffer.” The
    hard drive buffer initially stores the session data and
    pointers separately from the audio but then merges the
    three pieces of information by automatically writing from
    the buffer onto a magneto-optical disk. The information
    on the disk is thus comprised of the encoded audio, session
    data, and the pointers necessary to decode the audio. There
    is no “editing or alteration function” in this system.
    The magneto-optical disks relevant to the wiretap or-
    der in this investigation were presented to the district court
    for sealing pursuant to the statute. McLee and Murph-
    Jackson argue that § 2518(8)(a) required the government to
    deliver the hard drive buffer to the court for sealing because
    the buffer is the true “original recording” of the intercepted
    call.
    The primary purposes of § 2518(8)(a) are to “ensure the
    reliability and integrity of evidence obtained by means
    of electronic surveillance” and “limit[ ] the Government’s
    opportunity to alter the recordings.” United States v. Ojeda-
    Rios, 
    495 U.S. 257
    , 263 (1990). As applicable to this case,
    the statute requires that intercepted communications be
    recorded “on tape or wire or other comparable device” in
    such a way “as will protect the recording from editing or
    other alterations,” and that “such recordings” be made
    Nos. 04-1507 & 04-1535                                    21
    available to the judge issuing the surveillance order and
    sealed under his direction. Despite the strenuous efforts of
    McLee and Murph-Jackson to convince us otherwise, the
    word “original” appears nowhere in the statute. Moreover,
    their argument ignores every detail of the procedure used
    by the government for recording the intercepted calls.
    McLee argues that “anyone familiar with computers
    knows that a computer hard drive leaves lasting records
    that can allow a technician to decipher any alterations
    or tampering” and “anyone with editing software and a
    CD burner knows that alteration of a CD’s content can be
    done seamlessly and with little or no trail of alteration.”
    McLee presented no evidence to this effect in the district
    court, and these suppositions conflict with the record
    evidence regarding the sophisticated capture and pres-
    ervation system used by the government. This unsupported
    attempt to equate the government’s wiretap recording
    system with the functions commonly used on home comput-
    ers is unpersuasive. In the complete absence of any counter-
    vailing evidence, we must accept the accuracy of the govern-
    ment’s description of the attributes of its computer system,
    including the absence of any editing or alteration function.
    McLee and Murph-Jackson assert that because the
    intercepted calls are routed to the buffer prior to being
    written onto the magneto-optical disk, it is the buffer, and
    not the disk, that constitutes the “device” on which the
    communications are recorded and must be sealed pursu-
    ant to § 2518(8)(a).9 This argument ignores the fact that the
    buffer is a temporary holding site for the audio portion of
    the call and generates the “session data” and the “pointers”
    that identify and decode the encoded audio. The magneto-
    9
    The defendants do not argue that the sealed disks contained
    recordings that differed in any way from the data that was
    initially stored on the hard drive buffer.
    22                                     Nos. 04-1507 & 04-1535
    optical disk is therefore the first storage medium from
    which a comprehensible call can be replayed to a listener.
    In other words, even if it were possible for the hard drive
    buffer to be removed from the system and sealed by the
    court (a topic on which the parties do not comment), it is not
    apparent that the object being sealed would be capable of
    reproducing any recognizable human voices without
    transfer to another medium.
    Finally, the fact that the government’s interception
    system is designed to overwrite existing audio from the
    buffer in the event it fills to capacity makes it clear that the
    disk, not the buffer, is the secure storage medium for
    intercepted recordings that must be submitted for seal-
    ing under § 2518(8)(a). The motion to suppress the wire-
    tap evidence was properly denied.
    H. Drug Quantity Determination
    McLee argues that the district court committed clear
    error when it found, for purposes of sentencing, that he was
    responsible for more than 150 kilograms of cocaine and 1.5
    kilograms of crack.10 Post-Booker, the clear error standard
    of review continues to apply to factual findings made by the
    district court for purposes of determining the applicable
    advisory sentencing guidelines range. United States v.
    Julian, 
    427 F.3d 471
    , 489 (7th Cir. 2005). In a drug conspir-
    acy each conspirator is responsible not only for drug
    10
    With respect to this issue, Murph-Jackson’s brief once again
    states only that she “adopts” the arguments made by McLee to the
    extent that they apply to her. The trouble here is that McLee
    makes no arguments applicable to Murph-Jackson, and he ar-
    gues only that the evidence against him was insufficient to
    sustain the court’s drug quantity attribution. Murph-Jackson
    has therefore not properly raised any argument on appeal
    with respect to factual findings made in the course of sentencing.
    Nos. 04-1507 & 04-1535                                     23
    quantities directly attributable to him but also for amounts
    involved in transactions by coconspirators that were
    reasonably foreseeable to him. United States v. Paters,
    
    16 F.3d 188
    , 191 (7th Cir. 1994).
    McLee’s attack on the district judge’s factual findings
    is specious. The judge presided over a two-week trial in
    which no fewer than four members of the conspiracy and
    one major purchaser of cocaine testified at length regarding
    McLee’s complete and total immersion in all aspects of a
    drug-trafficking operation that purchased and distributed
    between 10 and 50 kilograms of cocaine a month for a
    period of approximately six years. According to
    Kevin Turner, McLee was “involved in every drug trans-
    action,” either in the capacity of delivering drugs, storing
    drugs, packaging drugs, collecting money from customers,
    delivering money to Turner, or acting as Turner’s body-
    guard. Other testimony established McLee as the bag
    man for the $47,060 delivery to the conspiracy’s cocaine
    supplier and as a participant in the delivery of the 37
    kilograms of cocaine discovered in Murph-Jackson’s attic,
    the final transactions before the conspiracy was interrupted
    by arrests.
    With respect to the crack amounts, Turner and Steve
    Brown, another member of the conspiracy, testified that
    Brown would purchase an eighth or a quarter kilogram of
    cocaine per week from Turner, often delivered to Brown
    by McLee, and cook the cocaine into crack. Brown testified
    that in the first half of 2001 he began purchasing his
    cocaine directly from McLee in quantities of a half ounce to
    an ounce at a time. Turner also testified that he recalled six
    or seven occasions in 1998 when he was present
    and witnessed McLee cooking an eighth of a kilogram of
    cocaine into crack. The evidence also established the seizure
    of 400 grams of crack from Murph-Jackson’s home.
    At sentencing the district court found that McLee “was so
    intricately related to the conspiracy and to the main
    24                                  Nos. 04-1507 & 04-1535
    conspirator, if you will, that it would be unreasonable not to
    saddle him or charge him with the drugs that the evidence
    suggested this conspiracy was responsible for.” This was not
    clear error.
    I. Mandatory Guidelines Application
    McLee and Murph-Jackson were sentenced under the now
    unconstitutional mandatory sentencing guidelines system.
    Booker, 
    543 U.S. 220
    . In supplemental briefing McLee
    requested resentencing; Murph-Jackson did not file a
    supplemental brief after the Supreme Court’s decision in
    Booker. Neither preserved the issue in the district court, so
    review is for plain error. Paladino, 
    401 F.3d at 481
    .
    Whether the error is plain in this context depends on
    whether the district court would have imposed a more
    lenient sentence had the court not believed it was bound by
    the guidelines. 
    Id. at 483
    . Where the record is unclear on
    this point, we retain jurisdiction and remand for a state-
    ment of the district court’s views. 
    Id. at 484
    .
    The sentences imposed in this case were at the low end of
    very high guidelines ranges, and the judge made sev-
    eral comments at sentencing explaining that he was
    inhibited by the sentencing guidelines from imposing lesser
    sentences. Regarding Murph-Jackson, the judge said: “I just
    tell the family members of Ms. Murph-Jackson that what-
    ever my thoughts [on sentencing] would be, if we had a
    different sentencing scheme or structure, do not really
    matter because I am bound to the guidelines. And there is
    nothing I can do to change that.” Regarding both defen-
    dants, he said: “I do not have a free hand, as I told everyone
    here, and especially his family, in either Rodney’s case or
    Vicki’s case. I have virtually no hand at all, if you want to
    know the truth.” The court also characterized the sentences
    imposed as being very long, and stated, with respect to
    McLee, “I do not even pretend I am being merciful by giving
    Nos. 04-1507 & 04-1535                                    25
    the low end of the guideline range.” Although Murph-
    Jackson did not specifically request resentencing in light of
    Booker, we will order a limited remand pursuant to
    Paladino for both defendants. See United States v. Murphy,
    
    406 F.3d 857
    , 862 (7th Cir. 2005).
    The defendants’ convictions are AFFIRMED. We retain
    jurisdiction and order a limited REMAND in accordance with
    the procedure outlined in Paladino.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-2-06
    

Document Info

Docket Number: 04-1507

Judges: Per Curiam

Filed Date: 2/2/2006

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (30)

United States v. Larry D. Cameron , 814 F.2d 403 ( 1987 )

United States v. Randolph Thompson, Terrius Wynn, Alcus ... , 944 F.2d 1331 ( 1991 )

United States v. Jesus Zambrana, Sr., Charles Cole and Jay ... , 841 F.2d 1320 ( 1988 )

United States v. Timothy J. Julian , 427 F.3d 471 ( 2005 )

United States v. William B. Hite , 364 F.3d 874 ( 2004 )

United States v. Wesley Bowman , 353 F.3d 546 ( 2003 )

United States v. Ronald A. King , 126 F.3d 987 ( 1997 )

united-states-v-robert-d-paladino-united-states-of-america-v-randy , 401 F.3d 471 ( 2005 )

United States v. Delbert R. Holm , 326 F.3d 872 ( 2003 )

United States v. Robert J. Paters , 16 F.3d 188 ( 1994 )

United States v. Daisy E. Walls and Sharee S. Williams , 225 F.3d 858 ( 2000 )

United States v. Kenneth M. Senffner , 280 F.3d 755 ( 2002 )

United States v. Joseph B. Carson, John K. Lanter, Wilbert ... , 9 F.3d 576 ( 1993 )

united-states-v-bernard-goines-ellen-j-moreland-sterling-daniels , 988 F.2d 750 ( 1993 )

United States v. Darron J. Murphy, Sr., Cross-Appellee, and ... , 406 F.3d 857 ( 2005 )

United States v. Herman Hicks, Radar Tyler, and Driefus ... , 368 F.3d 801 ( 2004 )

united-states-v-victor-plescia-frank-bonavolante-camillio-grossi-aka , 48 F.3d 1452 ( 1995 )

United States v. Charles W. Lahey and John P. Currens , 55 F.3d 1289 ( 1995 )

United States v. Armand W. Robinson, Sr. , 832 F.2d 366 ( 1987 )

United States v. Lamont B. Nelson and Delano C. Nelson , 39 F.3d 705 ( 1994 )

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