United States v. Nettles, Gale ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1304
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GALE NETTLES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 699—John F. Keenan, Judge,
United States District Court for the Southern District of New York,
Sitting by Designation.
____________
ARGUED OCTOBER 2, 2006—DECIDED FEBRUARY 12, 2007
____________
Before MARTIN, GIBBONS and SUTTON, Circuit Judges.Œ
BOYCE F. MARTIN, JR., Circuit Judge. Gale Nettles was
charged with attempting to destroy the federal courthouse
in Chicago, attempting to provide material support to
terrorism, manufacturing counterfeit money, and distribut-
ing counterfeit money. After a jury trial, he was convicted
on all charges except for attempting to provide material
Œ
Boyce F. Martin, Jr., Julia S. Gibbons, and Jeffrey S. Sutton,
Circuit Judges for the United States Court of Appeals for the
Sixth Circuit, sitting by designation.
2 No. 06-1304
support to terrorism, and sentenced to 160 years. On
appeal, Nettles alleges that the district court erred by
refusing to transfer the proceedings to a different venue,
denying Nettles’s motion to sever the terrorism and
counterfeiting counts, and denying Nettles’s motion to
prohibit introduction of tape-recorded conversations
between himself and a non-testifying individual. For the
reasons that follow, we AFFIRM the convictions.
I
The events leading up to this case began on September
5, 2002, when Gale Nettles was sentenced to a twenty-four
month prison sentence after pleading guilty to the crime of
counterfeiting United States currency. While incarcerated
at the Federal Correctional Institute in Yazoo City,
Mississippi, Nettles met fellow inmate Cecil Brown, a
former rancher and auctioneer who was serving time for
racketeering and fraud convictions. Nettles and Brown
initially discussed the possibility of laundering counterfeit
bills through Brown’s business, but soon thereafter Nettles
revealed that he had other plans in mind. Nettles asked
Brown whether he had ever used ammonium nitrate, the
substance used to blow up the Oklahoma City federal
building, as a fertilizer in his ranching business. Nettles
remarked that a larger bomb “could have brought the
whole . . . building down.”
In August 2003, Nettles and Brown began discussing
Nettles’s intent to bomb the federal courthouse in Chicago,
the Dirksen Federal Building. Nettles told Brown that he
was “[v]ery serious” about his plan, and explained the
details, which included placing the bomb in a tractor-
trailer, driving down a ramp to the building’s dock,
removing the trailer from the tractor, and driving off in the
tractor.
No. 06-1304 3
Brown informed prison officials of Nettles’s plan. These
officials put Brown in touch with the FBI. Under the FBI’s
direction, Brown gave Nettles the phone number of an
individual who was supposedly Brown’s nephew and would
be able to help Nettles obtain ammonium nitrate. This
number was actually an undercover phone number at the
FBI office in Shreveport, Louisiana. Upon his release in
October 2003, Nettles went to Chicago. After calling a few
times, Nettles was eventually put in touch with Gary
Beasley, an undercover officer for the FBI, who was posing
as Brown’s nephew. Beasley claimed to be a Louisiana
farmer with access to ammonium nitrate fertilizer.
On January 14, 2004, Beasley came to Chicago and met
with Nettles. Nettles told Beasley that he wanted to build
a bomb that would bring down the entire Dirksen Federal
Building because he was upset with the federal judicial
system and further, because the building blocked the view
of the lake. During this conversation, Nettles revealed that
he was into “graphic arts” and made money “the old-
fashioned way,” meaning that he manufactured counterfeit
money. Nettles explained that his plan was to generate
counterfeit money and use it to finance his bomb plan.
Nettles also asked Beasley whether he was interested in
buying counterfeit money.
Nettles and Beasley continued their correspondence over
the phone. In March 2004, Beasley sent Nettles a com-
puter and printer so that Nettles could print counterfeit
currency. That same month, an informant hired by the
FBI, Sylvia Anicua (who called herself “Maria”) introduced
herself to Nettles. When Nettles mentioned that he made
counterfeit money, Anicua told Nettles that she knew
someone who would be interested in purchasing it. Be-
tween May and June, Nettles made four deliveries of
counterfeit money (totaling $52,200) to Anicua, in ex-
change for $5,500 in real United States currency which
was supposedly from Anicua’s contact. In July, Nettles
4 No. 06-1304
sent a fifth shipment of $9,000 in counterfeit bills to
Beasley. Beasley later told Nettles that in exchange for the
counterfeit money, Beasley would provide Nettles with any
amount of ammonium nitrate fertilizer that Nettles
wanted.
Upon learning that he would be able to obtain the
fertilizer, Nettles contacted Anicua and asked her if she
knew anyone associated with Hamas or al-Qaeda. Anicua
introduced Nettles to an undercover agent who was posing
as a taxi driver and al-Qaeda member named “Ali.”
Nettles told Ali he would sell him a half-ton of ammonium
nitrate for $10,000 and stated that this was the same
substance used to bomb the Oklahoma City building. He
told Ali that he had the federal courthouse in Chicago in
mind as a target.
On July 26, 2004, Nettles informed Beasley that he had
rented a locker at a storage facility for storing the ammo-
nium nitrate fertilizer and stated that he would probably
use it within the next six weeks. Nettles also told Beasley
that he had met Hamas and al-Qaeda members and could
get five or ten thousand dollars for selling them the
fertilizer. Nettles told Anicua that he could get more
fertilizer and asked her to find out how much Ali wanted.
On July 31, 2006, Nettles, Anicua, and Ali met. Nettles
described to them how to create a time bomb using diesel
fuel and ammonium nitrate, and again mentioned that he
had the Dirksen Federal Building in mind as a target.
Nettles noted the “impact” it would make on the country if
this happened while judges were inside.
On August 2, 2004, Beasley told Nettles that he had
packed a ton of ammonium nitrate on his truck.1 Two days
1
The substance supplied by Beasley was actually urea, not
ammonium nitrate fertilizer.
No. 06-1304 5
later, Beasley picked up Nettles at his home in Chicago
and drove to the locker Nettles had rented. Although
Nettles and Beasley intended to unload a half-ton into the
locker (reserving the other half-ton for sale to Ali), they
were only able to place 537.5 pounds into the locker,
leaving just under 1,500 pounds for Ali. Nettles directed
Beasley to a location in a park where they agreed Beasley
would park the truck the next day. Beasley was to then
walk away and allow Nettles’s al-Qaeda contact to remove
the ammonium nitrate from the truck.
On the morning of August 5, 2004, Nettles met with
Anicua and walked to the park. As planned, Beasley drove
up, parked the truck in the park, and walked away.
Nettles and Anicua observed through binoculars as
undercover agents unloaded the fertilizer from Beasley’s
truck and placed it into another vehicle. After the truck
was unloaded, Nettles and Anicua walked to Ali’s taxi
where Ali was waiting, and Ali paid Nettles $10,000. Soon
thereafter, FBI agents arrested Nettles.
On September 1, 2004, a grand jury returned a nine-
count indictment charging Nettles with attempting to
destroy a federal building by fire and explosive (18 U.S.C.
§ 844(f )(1)), attempting to destroy a building used in
interstate commerce by fire and explosive (18 U.S.C.
§ 844(i)), attempting to provide material support to
terrorism (18 U.S.C. § 2339), manufacturing counterfeit
currency (18 U.S.C. § 471), and five counts of transferring
counterfeit currency (18 U.S.C. § 473).
II
Before trial, Nettles moved for recusal of the district
court judge and transfer to another district. Both motions
were denied. United States v. Nettles, 349 F. Supp. 2d
1085, 1088 (N. D. Ill. 2004). On appeal, the Seventh
Circuit reversed in part, ordering that the district court
6 No. 06-1304
judge recuse himself, but did not rule on Nettles’s motion
to transfer. The Court also decided to recuse all Seventh
Circuit judges from hearing any subsequent appeal. In re
Nettles, 394 F.3d 1001, 1003 (7th Cir. 2005). District Judge
John F. Keenan from the Southern District of New York
was assigned to preside over the trial.
Nettles brought six pretrial motions, three of which are
at issue in this appeal. The district court denied Nettles’s
motion to transfer, finding that there was no showing that
Nettles could not receive a fair and impartial trial in the
Northern District of Illinois. D. Ct. Op., June 29, 2005, at
5-6.
The district court also denied Nettles’s motion for
severance of counts, ruling that Nettles’s counterfeiting
activity was part of a common scheme and plan to de-
stroy the Dirksen Federal Building, and that there was
no unfair prejudice caused by joinder of the offenses. Id. at
5-6. Nettles also moved to preclude the government
from playing at trial tape recordings of conversations
between Nettles and other participants unless the govern-
ment called these participants to testify. At the time, he
did not know whether all persons on the tapes would be
called as witnesses. The district court denied Nettles’s
motion, ruling that there is no Confrontation Clause
violation where the statements are used for purposes
other than establishing the truth of the matter asserted.
Id. at 7-9. Nettles was convicted by a jury on September 1,
2004, on all counts but the count for attempting to pro-
vide material support to terrorism. He was sentenced on
January 12, 2006, to eight consecutive terms of 20 years
each, for a total of 160 years.
III
Nettles sought a transfer of venue under Fed. R. Crim.
P. 21(a), which requires a change of venue “if the court is
No. 06-1304 7
satisfied that so great a prejudice against the defendant
exists in the transferring district that the defendant
cannot obtain a fair and impartial trial there.” The district
court denied the request, noting that the jurors in Nettles’s
case would not have been jurors at the time Nettles
intended to destroy the courthouse, that the pretrial
publicity had been less pervasive in Nettles’s case than in
other cases from the Northern District of Illinois that were
not transferred, and that “[n]othing has been presented to
the Court to demonstrate that defendant cannot receive a
fair and impartial trial in the Northern District of Illinois
with a jury from the district.” D. Ct. Op., June 29, 2005, at
5-7. Nettles challenges this ruling on appeal, asserting
that jurors sitting in the very building he was accused of
attempting to destroy could not realistically be asked to
put out of mind the potential death and destruction his
acts would have caused.
We review a denial of a request for change of venue
under Rule 21(a) for abuse of discretion. United States v.
Garza, 664 F.2d 135, 139 (7th Cir. 1981). Abuse of discre-
tion will not be found unless the facts compel—and not
merely support—a finding that a change in venue is
necessary. United States v. Morrison, 946 F.2d 484, 489
(7th Cir. 1991).
Courts have typically analyzed whether there is preju-
dice under Rule 21 by looking to pretrial publicity. Preju-
dice can be established by either a showing of actual
prejudice, for example, when jurors can be shown to have
exposure to pretrial publicity that prevents them from
judging the case impartially, or by presumed prejudice,
which occurs in cases surrounded by a “carnival atmo-
sphere,” where “pervasive and inflammatory pretrial
publicity” makes juror bias inevitable. United States v.
Peters, 791 F.2d 1270, 1296 (7th Cir. 1986) (superseded on
other grounds, as stated in United States v. Guerrero, 894
F.2d 261, 267 (7th Cir. 1990)) (citations omitted). In
reviewing denials of requests to change venue, we have
8 No. 06-1304
stated that the “ultimate question is whether it is possible
to select a fair and impartial jury, and in most situations
the voir dire examination adequately supplies the facts
upon which to base that determination.” Id. (quoting
United States v. Daddano, 432 F.2d 1119, 1126 (7th Cir.
1970)).
In his brief, Nettles does not point to any actual preju-
dice, as he does not identify anything in the record that
would indicate any given juror had been exposed to
pretrial publicity. Further, he acknowledges that the
pretrial publicity in this case was not nearly as pervasive
as in other cases in which motions for transfer were
denied. Instead, he seems to rely on the idea of presumed
prejudice, stating that “juror[s] sitting for a week or more
in a building which the government argued was intended
to be destroyed by a huge explosion and fire, killing most
or all of the persons who worked therein, including jurors,
would inevitably have their judgment clouded by that
fact.” Appellant’s Br. at 14.
The district court conducted a careful voir dire process to
prevent the presence of juror bias. As we have noted, this
approach usually satisfies the “ultimate question” of
whether particular jurors can be fair and impartial.2
However, Nettles argues that the effectiveness of voir dire
is irrelevant, because it can only eliminate the taint of
pretrial publicity, and here, “the prejudice of the jurors is
based on a state of mind which is not nearly as easy to
quantify and articulate as a submission of a volume of
press clippings would be.” Appellant’s Reply Br. at 3-4. In
other words, unlike in the case of pretrial publicity, here,
the “anxiety” of the jurors concerning a potential threat to
their own safety made them unable to assess their ability
to fairly deliberate and assess the evidence. Nettles argues
2
Only one venire member indicated that he had heard of the
case. He was eventually dismissed.
No. 06-1304 9
that it was impossible for these jurors “to put out of their
mind the inevitable and natural human thought, ‘that
could have been me working in this building on that
day.’ ” Appellant’s Br. at 14. He makes the bold assertion
that as a matter of law, it would be impossible for him to
be tried by an impartial jury in the Dirksen Federal
Building.
Although Nettles effectively distinguishes this type of
case from those involving pretrial publicity, it does not
necessarily follow that voir dire is a less valuable tool to
screen for juror prejudice in this context. The questioning
of jurors regarding their ability to be impartial need not be
limited to their prior knowledge of the case. Nettles also
could have requested that the jurors be asked about their
ability to fairly assess evidence pertaining to a threat to
the courthouse within which they were sitting, and yet he
failed to do so. We find Nettles’s full scale attack on our
reliance on the voir dire process, based simply on the
possibility of “juror anxiety,” to be unconvincing.
Nettles relies on the case of United States v. McVeigh,
918 F. Supp. 1467 (W.D. Okla. 1996), in support of his
claim for a transfer. There are some key distinctions
between this case and McVeigh that make it inapposite
here. First and foremost, McVeigh actually executed his
plan to destroy the federal building in Oklahoma City,
which, as the district court noted, caused “the deaths of
168 identified men, women and children, injuries to
hundreds of other people, the complete destruction of the
Alfred P. Murrah Federal Office Building and collateral
damage to other buildings, including the United States
Courthouse . . . [as well as] immeasurable effects on the
hearts and minds of the people of Oklahoma from the blast
and its consequences.” Id. at 1469. In addition to the fact
that Nettles was unsuccessful in carrying out his plan, we
note that it was entirely impossible for Nettles to destroy
the Dirksen Federal Building because (1) every person
involved in his plot was an FBI informant, and (2) he was
10 No. 06-1304
actually given urea, which does not have the explosive
attributes of ammonium nitrate. Perhaps more signifi-
cantly, McVeigh is a district court case, and only repre-
sents an example of a district court judge exercising his
discretion to grant a change of venue. It offers no support
for a reviewing court to reverse a denial of a motion to
transfer. Therefore, we do not believe the McVeigh case is
of much relevance here.
To be sure, the argument that jurors’ impartiality would
be affected by the fact they sit in the very building that
was targeted would indeed be compelling in some in-
stances. However, in this particular case, the alleged facts
simply do not compel a finding that, as a matter of law,
jurors were prejudiced. As noted above, Nettles’s at-
tempted crime was a failure and had a zero percent
chance of success given the FBI’s involvement. Further,
given the improbability of this crime ever coming to
fruition, we find that the potential of a juror thinking “it
could have been me,” would have been just as likely for
any juror in any federal courthouse. Admittedly, the facts
of this case were enough to convince the prior panel that
neither a judge from the Northern District of Illinois, nor
a judge from the Seventh Circuit, should hear this case.
However, as recorded statements by Nettles reveal,
Nettles admitted his desire to kill judges, but not jurors,
inside the courthouse. Had Nettles stated that he wished
to kill jurors, perhaps our decision would be different.
We reject Nettles’s argument that the jury was preju-
diced and hold that the district court did not abuse its
discretion.3
3
Additionally, although this does not affect our determination,
we note that Nettles merely moved to transfer to a different
district, without suggesting the logical solution of simply
transferring his case to the Western Division of the Northern
(continued...)
No. 06-1304 11
IV
The district court also denied Nettles’s motion to sever
the counts in the indictment requesting he be tried
separately for the charges of attempting to destroy the
federal building (Counts 1-3) and the charges related to
counterfeiting (Counts 4-9). The district court denied this
request, finding that “Defendant’s counterfeiting activity
was part of a common scheme and plan to destroy the
Dirksen building with a truck bomb. Defendant allegedly
made clear that counterfeiting would finance his bomb
plot.” D. Ct. Op., June 29, 2005, at 4. Nettles challenges
this ruling on appeal, claiming that the charges regarding
the violent crime of attacking the federal building preju-
diced him with respect to the charges of the non-violent act
of counterfeiting. He also claimed that prejudice occurred
in the reverse direction, because he had a prior counter-
feiting conviction,4 and that the jury could have found him
(...continued)
District of Illinois. This would have allowed Nettles to be tried in
the courthouse in Rockford, Illinois, rather than the Dirksen
Federal Building, without having to transfer to another district.
At oral argument, Nettles’s counsel conceded that this would
have been a viable alternative which would have eliminated the
need to appeal on this issue. Despite his failure to craft a more
particularized motion to transfer, because we find that Nettles
was in no way prejudiced by having his trial held in the Dirksen
Federal Building, we need not address whether an intradistrict
transfer would have been a more appropriate solution.
4
Although Nettles does not develop this argument with any
additional specificity, he seems to be suggesting that evidence of
his past convictions for counterfeiting was admissible under Fed.
R. Evid. 404(b) with regard to the counterfeiting charges but not
to the bombing charges. The government argues that the prior
convictions would have been admissible for both offenses,
because its theory of the case (supported by statements from
(continued...)
12 No. 06-1304
to be more likely to have committed the violent offenses
because he was a repeat offender. Nettles’s argument
consists of two separate legal challenges: first, that joinder
was improper under Fed. R. Crim. P. 8(a) because the two
alleged crimes were not sufficiently related, and second,
that the joinder of the offenses caused him undue prejudice
under Fed. R. Crim. P. 14(a).
Rule 8(a) provides that “[t]he indictment or information
may charge a defendant in separate counts with 2 or more
offenses if the offenses charged . . . are of the same or
similar character, or are based on the same act or transac-
tion, or are connected with or constitute parts of a common
scheme or plan.” We have broadly construed Rule 8(a) “to
allow liberal joinder in order to enhance judicial effi-
ciency.” United States v. Stillo, 57 F.3d 553, 556 (7th Cir.
1995). The question of whether joinder was appropriate
under Rule 8(a) is reviewed de novo. United States v.
Archer, 843 F.2d 1019, 1021 (7th Cir. 1988).
Rule 14(a) states that “[i]f the joinder of offenses or
defendants . . . appears to prejudice a defendant or the
government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief
that justice requires.” We have held that a “district court’s
(...continued)
Nettles) was that Nettles wanted to blow up the courthouse as
revenge for his prior counterfeiting convictions. The government
is correct, as evidence of past bad acts is admissible under Rule
404(b) to show “proof of motive [or] intent,” among other things.
Here, Nettles’s prior counterfeiting conviction goes directly to his
motive. The district court also informed the jury before the trial
that the evidence of the prior convictions was only relevant to
show “motive, intent, and predisposition,” and that it would be
“grossly improper to find him guilty in this case because he was
found guilty in another case.” We find that this was sufficient to
eliminate the risk of juror prejudice.
No. 06-1304 13
ruling on a Rule 14 severance motion will be reversed only
upon an abuse of discretion, [and a defendant] must show
that without severance, he was denied a fair trial.” Archer,
843 F.2d at 1021.
The joinder of Nettles’s offenses does not appear to have
been improper here. The government’s theory of the case
was that Nettles’s counterfeiting scheme was conducted to
financially support his plan to attack the federal building.
This theory was backed by evidence that Nettles planned
to use counterfeit money or the proceeds from passing
counterfeit money to purchase the van and the fertilizer.
There was certainly a showing that the separate offenses
were “connected with or constitute[d] parts of a common
scheme or plan,” as required for joinder under Rule 8(a).
Nor does it appear that the district court abused its
discretion in determining that Nettles was not signifi-
cantly prejudiced by the joinder. As Nettles’s attorney
conceded at oral argument, the offenses were sufficiently
intertwined so that the evidence of each offense would
have been admissible in a separate trial for the other
offense. United States v. Hogan, 886 F.2d 1497, 1506 (7th
Cir. 1989) (“In determining whether joinder caused the
defendant actual prejudice, we determine whether evi-
dence supporting one count could also have been admitted
in a trial solely on the other count.”). Further, the jury
instructions limited any potential prejudice by informing
the jury that they could not consider the evidence of prior
bad acts for anything other than motive, intent, or predis-
position, that the jury should consider the evidence on each
count separately, and that a verdict for one offense should
not affect a verdict on any of the other charges. There is
little basis to conclude that the district court’s determina-
tion that Nettles would not be prejudiced by the joinder
was an abuse of discretion.
Nettles also argues that he suffered sufficient prejudice
from joinder because he would have wanted to testify
14 No. 06-1304
regarding one alleged offense but not the other.5 Although
in the past we have found a defendant’s desire to testify to
one offense but not another to be relevant in analyzing a
potentially prejudicial joinder, we have held that the “need
for severance does not arise ‘until the defendant makes a
convincing showing that he has both important testimony
to give concerning one count and strong need to refrain
from testifying on the other.’ ” Archer, 843 F.2d at 1022.
Here, Nettles not only failed to make a convincing showing
in the trial court that he wanted to testify with regard to
the charges relating to destruction of the building, but he
failed to raise the issue in the district court at all. Thus,
we can disregard Nettles’s claim on appeal that he would
have wanted to testify in a trial on the bombing counts
alone as a basis for finding prejudice.
V
We review de novo a district court ruling that affects a
defendant’s Sixth Amendment rights. United States v.
Danford, 435 F.3d 682, 687 (7th Cir. 2005). Nettles argues
that he was convicted in part upon the audio and video
recordings of his conversations with Anicua and “Ali.”
Nettles contends that because he was not given the
opportunity to cross-examine Ali, his Sixth Amendment
right to confrontation was violated.6 He alleges that this
prevented him from effectively presenting his entrapment
defense. In response, the government contends that there
5
Nettles suggests that he might have wanted to testify with
regard to a potential entrapment defense, which he believes
would have been more convincing with respect to the terrorism
and bombing charges than to the counterfeiting charges.
6
Nettles concedes that his own taped statements are admissible
as party admissions and Anicua’s statements are admissible
because she was subject to cross-examination.
No. 06-1304 15
was no Confrontation Clause violation because Ali’s
statements were not used “to establish the truth of the
matter asserted,” and that Ali was not a “witness” for
Sixth Amendment purposes. Rather, Ali’s statements were
merely used as “context” for Nettles’s otherwise admissible
statements.
Crawford v. Washington provides that “[t]he [Confronta-
tion] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth
of the matter asserted.” 541 U.S. 36, 59 n.9 (2004) (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)). We have
read this language to mean that when statements are
merely offered to show context, they are not being offered
for the truth of the matter asserted, and therefore,
Crawford does not require confrontation. United States v.
Tolliver, 454 F.3d 660, 666 (7th Cir. 2006). In Tolliver, we
examined a nearly identical issue to the one presented in
the case at bar: whether the defendant’s right to confronta-
tion was violated when the government introduced audio-
tapes of conversations between the defendant and a
confidential informant who did not testify at trial. Id. at
664. We ruled that the informant’s “statements were
admissible to put [the defendant]’s admissions on the tapes
into context, making the admissions intelligible for the
jury.” Id. at 666. Applying this rule to Nettles’s case, Ali’s
recorded statements are admissible if they were merely
used to provide context to Nettles’s admissions.
Despite our holding in Tolliver, we implied that our
ruling may have been different had the defendant made a
showing that the government offered the declarant’s
statements for the truth of the matter asserted. Id. at 666
n.3 (“[The defendant] has not challenged the government’s
characterization of this evidence, nor has he given us any
indication that the government used [the declarant]’s
statements for any reason other than to place [the defen-
dant]’s admissions into context.”). We note that there is a
16 No. 06-1304
concern that the government may, in future cases, seek to
admit based on “context” statements that are, in fact,
being offered for their truth. Here, however, the record
shows that Ali’s statements were carefully presented as to
only provide context for Nettles’s admissions.
Ali presented himself as an individual who had trouble
speaking and understanding English, and often asked
Nettles to repeat what he said or better explain himself. In
many of their discussions, Nettles would do most of the
talking while Ali said nothing but “okay” in response.
Sometimes, Ali asked questions (presumably in order to
elicit more incriminating information from Nettles), such
as Nettles’s target, or how to make a bomb. However, Ali
does not appear to say anything of substance. He does not
put words into Nettles’s mouth or try to persuade Nettles
to commit more crimes in addition to those that Nettles
had already decided to commit. In other words, Ali did not
actually “testify against” Nettles. See Crawford, 541 U.S.
at 51 (explaining that the Confrontation Clause “applies to
‘witnesses’ against the accused—in other words, those who
‘bear testimony.’ ”). Ali was not a “witness” for Sixth
Amendment purposes. See United States v. McClain, 934
F.2d 822, 832 (7th Cir. 1991). Thus, in this case, the
government’s characterization of Ali’s statements is
correct, and they can only be considered contextual. We
hold that there was no violation of Nettles’s right to
confrontation.
VI
For the reasons above, we AFFIRM Nettles’s convictions.
No. 06-1304 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-12-07