United States v. Cooper, James A. , 224 F. App'x 537 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2007
Decided May 24, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4165
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois
v. No. 4:03CR40059-001 DRH
JAMES A. COOPER, David R. Herndon,
Defendant-Appellant. Judge.
ORDER
James Cooper and his confederates dealt powder and crack cocaine. A jury
found him guilty on drug and gun charges, 21 U.S.C. §§ 846, 841(a)(1); 18 U.S.C.
§ 922(g)(1), and the district court sentenced him within the applicable guidelines
range to a total of 285 months’ imprisonment. Cooper filed a notice of appeal, but
his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S.
738 (1967), because he cannot discern a nonfrivolous issue to pursue. Counsel’s
supporting brief is facially adequate, and Cooper has responded to our invitation
under Circuit Rule 51(b) to comment on counsel’s submission. We limit our review
to the potential issues identified in counsel’s brief and Cooper’s response. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 05-4165 Page 2
Police sent an informant to make three separate controlled buys of crack from
James Golden, who ran drugs for Cooper. At trial Golden testified for the
government that on all three occasions he used the informant’s cell phone to contact
Cooper, who then—outside of the informant’s view—delivered the drugs. Golden
also testified that he acted as the middleman for Cooper in other drug transactions
and that Cooper occasionally fronted him drugs, expecting payment only after he
resold them. The informant corroborated Golden’s account.
Surveillance officers who monitored the controlled buys also testified that
they observed Cooper and Golden meet during all three transactions, and that they
found the marked money from the third purchase in Cooper’s car when they
arrested him. Following his arrest, Cooper disclosed after Miranda warnings the
numbers assigned to his pager and cell phone; those numbers were dialed from the
informant’s cell phone during the controlled buys. Officers also executed a search
warrant of Cooper’s apartment and found roughly 540 grams of crack, 340 grams of
powder cocaine, three firearms, and $8,400 in currency. The police overlooked
another $112,000 in $20 bills that a maintenance man found later. Over trial
counsel’s objection of unfair prejudice, the district court admitted Cooper’s financial
affidavit supporting his request for appointed counsel. In that affidavit he asserted
that he was financially unable to obtain an attorney because he earned only $300
per month.
The government also called nine other witnesses who bought drugs from
Cooper, sometimes through middlemen. One witness explained that Cooper would
usually front him drugs twice a day. He testified that they would split “fifty-fifty”
the proceeds from the ensuing drug sales—the witness sold the crack for twice what
he agreed to pay the defendant.
In the brief supporting his motion to withdraw, counsel identifies a litany of
potential arguments—many requiring no discussion here—but concludes that all of
them would be frivolous. Both counsel and Cooper first consider whether Cooper
could argue that the government failed to present sufficient evidence to convict him
of conspiracy to possess and distribute crack. Although trial counsel moved for a
judgment of acquittal after the government rested, he failed to renew this motion at
the close of all the evidence; our review thus would be for plain error. See United
States v. Owens, 301 F.3d 521, 527-28 (7th Cir. 2002).
To prove the conspiracy count the government had to show not a buyer-seller
relationship between Cooper and those who bought crack from him, but rather that
he worked in concert with others to sell drugs. See United States v. Smith, 393 F.3d
717, 719-20 (7th Cir. 2004). We have held that an established method of
payment—like fronting drugs—and a shared stake in the sale of the drugs can
demonstrate this type of joint effort. Id. At trial one witness testified that Cooper
No. 05-4165 Page 3
typically fronted him drugs twice each day, and that they split the proceeds from
his sales. Golden likewise testified that Cooper fronted him drugs, and that if he
consumed any of those himself—as he often did—he would “work it off by selling
more” drugs for Cooper. Thus, we agree with counsel that arguing that this
evidence is insufficient to support Cooper’s conspiracy conviction would be frivolous.
Counsel next considers whether Cooper could argue that the district court
erred by denying his pro se motion for appointment of substitute counsel. We
review such rulings only for an abuse of discretion, see United States v. Best, 426
F.3d 937, 947 (7th Cir. 2005), and we agree with counsel that it would be frivolous
to argue that there was an abuse of discretion here. The district court conducted a
hearing on the motion—at which Cooper and trial counsel were present—and the
court determined that there had not been an irretrievable breakdown between
them. This conclusion finds support in Cooper’s pretrial motion, which alludes to
letters and meetings between Cooper and his counsel regarding potential motions,
witnesses, and defense theories. Although Cooper disagreed with some of trial
counsel’s tactical decisions, their relationship never reached the point of a total
breakdown that would have warranted substituting another lawyer. See id. at
947-48. After all, counsel, not the defendant, makes these strategic decisions
because they require legal training. See United States v. Babul, 476 F.3d 498, 500
(7th Cir. 2007); United States v. Johnson, 223 F.3d 665, 670 (7th Cir. 2000).
Counsel and Cooper next consider whether Cooper could argue that the
delayed commencement of his trial violated his rights under the Speedy Trial Act,
18 U.S.C. §§ 3161-74. Cooper, though, never moved to dismiss the indictment on
the ground that his statutory right to a speedy trial was violated, so that argument
is waived. See 18 U.S.C. § 3162(a)(2); United States v. Morgan, 384 F.3d 439, 443
(7th Cir. 2004).
In his Rule 51(b) response, Cooper suggests that a police officer lied in an
affidavit for a warrant to search his apartment and contends that the district court
should have conducted a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to
determine whether to suppress the drugs and guns found there. The affiant
represented that the informant who made the controlled buys had fingered Cooper
as the source of the drugs, but, as Cooper notes, the informant could not identify
him at trial. It would be frivolous, however, to raise a Franks argument on appeal.
Cooper forfeited that argument by not moving to suppress. See United States v.
Johnson, 415 F.3d 728, 730 (7th Cir. 2005); United States v. McDonald, 723 F.2d
1288, 1292-93 (7th Cir. 1983). And in any event, Cooper was not entitled to a
Franks hearing because, even after setting aside the allegedly false information,
sufficient content in the affidavit supports a finding of probable cause. See United
States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003). The affiant stated that
No. 05-4165 Page 4
agents observed Cooper meet with Golden during the controlled buys and saw
Cooper stop at his apartment immediately before one of the purchases.
Counsel also questions whether the district court made errors in its multiple
evidentiary rulings during Cooper’s trial. First, counsel considers whether Cooper
could argue that the district court admitted evidence that was unfairly prejudicial.
The court allowed in Cooper’s postarrest statement in which he identified the
numbers assigned to his pager and cell phone. Both numbers appeared on the
informant’s cell phone during the controlled buys, and like any probative evidence
the statement was prejudicial to Cooper. See Souffront, 338 F.3d at 826. But to
argue that it unfairly prejudiced Cooper would be frivolous. See Old Chief v. United
States, 519 U.S. 172, 180 (1997) (“The term ‘unfair prejudice,’ as to a criminal
defendant, speaks to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof specific to the offense
charged.”); United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998). The same is
true for Cooper’s affidavit supporting his request for appointed counsel. In that
affidavit Cooper asserts that he had a meager income, which the court found
relevant in light of the more than $120,000 in cash found in his apartment.
Although it was damaging because it suggests that Cooper had an illicit source of
income, the affidavit did not lure the jury into finding him guilty based on improper
reasons.
Counsel also considers arguing that the witness used to introduce Cooper’s
gambling records from Harrah’s Casino—which reveal that from 1999 to 2004 he
played a total of $334,675 on cash games and lost $44,555—was unqualified to do
so. See Fed. R. Evid. 803(6). We have held that a witness laying the foundation for
business records must have knowledge concerning their creation but doesn’t need
personal knowledge about the specific entries in those records. See United States v.
Lawrence, 934 F.2d 868, 870-71 (7th Cir. 1991). Here, the casino’s regulatory
compliance officer testified that the records were compiled from a regularly
maintained computer tracking system and described in detail the casino’s method of
recording their patrons’ bets. Thus, arguing that she was unqualified to introduce
the evidence would be frivolous.
Counsel next raises two potential issues regarding the jury. He first
addresses whether Cooper could argue that the district court improperly excused a
juror on the third day of trial based on her representation that she could not
concentrate because she had been kicked out of her home. Cooper, however, waived
this argument by agreeing with the district court’s proposal to excuse the juror and
replace her with an alternate. See United States v. Olano, 507 U.S. 725, 733 (1993);
United States v. Cunningham, 405 F.3d 497, 502 (7th Cir. 2005); Johnson, 223 F.3d
at 669-70. Counsel also considers asking whether the district court erred by
refusing to grant a motion for mistrial after two jurors overheard a nervous
No. 05-4165 Page 5
government witness complain that she had not received money for lunch as
promised by the government. We would review the court’s denial of this motion for
abuse of discretion. United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir.
1998). Outside of the presence of the other jurors, the court held a hearing where
both jurors explained what they observed and asserted that they would assess the
witness’ credibility from what transpired during the trial alone. Cf. Schaff v.
Snyder, 190 F.3d 513, 534 (7th Cir. 1999) (“[The] unintended receipt of extraneous
information by the juror was an outside unauthorized communication, but it
certainly was not a purposeful intrusion into the sanctity of the juror’s domain.”).
On this record it would be frivolous to argue that the court abused its discretion by
refusing to grant a mistrial.
Counsel also raises three potential arguments regarding Cooper’s overall
prison sentence. First, counsel and Cooper consider whether Cooper could argue
that the district court miscalucated the drug quantity, which largely controlled his
offense level under the guidelines. We agree with counsel that this argument would
be frivolous; Cooper’s base offense level of 36 was justified simply by the 540 grams
of crack found in his apartment. See 2D1.1(c)(2).
Both counsel and Cooper also question whether the district court properly
increased Cooper’s offense level based on the firearms found in his apartment. See
U.S.S.G. § 2D1.1(b)(1). This adjustment applies “unless it is clearly improbable
that the weapon was connected with the offense.” Id. cmt. n.3; United States v.
Cashman, 216 F.3d 582, 587 (7th Cir. 2000). Here, officers testified that they found
the firearms at Cooper’s residence, where he also stored large amounts of drugs,
and Cooper offered no evidence that they were unconnected with his offense. Thus,
it would be frivolous to argue that the court erred by applying this adjustment.
Counsel also considers whether Cooper could argue that his prison sentence
is unreasonable because one of his co-conspirators, Golden, was sentenced to 70
months’ imprisonment, while he was sentenced to 235 months’ imprisonment.
Cooper’s sentence was within the properly calculated guidelines range and is thus
entitled to a presumption of reasonableness. See United States v. Gama-Gonzalez,
469 F.3d 1109, 1110 (7th Cir. 2006). Although the Supreme Court recently granted
a writ of certiorari to consider whether it is consistent with United States v. Booker,
543 U.S. 220 (2005), to afford a presumption of reasonableness to a sentence within
the guidelines range, see United States v. Rita, No. 05-4674, 177 F. App’x 357 (4th
Cir. May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), the
resolution of that question would not affect our conclusion that challenging the term
imposed here would be frivolous. Sentencing courts are required to avoid
“unwarranted sentencing disparities among defendants . . . found guilty of similar
conduct,” 18 U.S.C. § 3553(a)(6), but that requirement means that courts must
avoid “an unjustified difference across judges (or districts) rather than among
No. 05-4165 Page 6
defendants to a single case.” United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006). And in any event, Cooper and Golden were not found guilty of similar
conduct. Officers found over 540 grams of crack cocaine, 340 grams of powder
cocaine, and three firearms at Cooper’s apartment, while Golden was found with a
single rock of crack.
Finally, we are in agreement with counsel that if Cooper wishes to argue that
trial counsel was ineffective for refusing to file requested motions and call certain
witnesses, he would be better served by bringing that claim through a collateral
proceeding under 28 U.S.C. § 2255. See, e.g., Massaro v. United States, 538 U.S.
500, 504-05 (2003); United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.