United States v. McMahan, DeAngelo ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANGELO MCMAHAN, BRIAN NELSON,
ANTONIO MCMAHAN, DESHUN SMITH,
and GINO MCMAHAN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 423—Amy J. St. Eve, Judge.
____________
ARGUED MAY 30, 2007—DECIDED JULY 20, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
EVANS, Circuit Judges.
EVANS, Circuit Judge. The five defendants in this case
were part of a long-term, well-established drug business
near the corner of Washington and Waller on the west side
of Chicago. In particular, they operated out of a clothing
store called 600 Collections. They were pretty much a full-
service operation, selling heroin, cocaine, cocaine base,
and marijuana. The operation began in 1988 and contin-
ued until, through wiretaps on cell phones, surveillance of
the locations, informants, and other investigative prac-
tices, agents of the Federal Bureau of Investigation, the
2 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
Drug Enforcement Administration, and the Chicago Police
Department put them out of business in 2004. They were
charged in count 1 of an 11-count second superseding
indictment with conspiracy to possess with the intent to
distribute narcotics, in violation of 21 U.S.C. § 846. Other
charges against them individually and in various combina-
tions include substantive distribution counts, in violation
of 21 U.S.C. § 841(a)(1), and using a communication
facility to commit a drug trafficking crime, in violation of
21 U.S.C. § 843(b).
Four of the defendants, all except DeAngelo McMahan,
were convicted of conspiracy. In addition, Antonio
McMahan was convicted of distribution of cocaine, two
counts of distributing heroin, and three counts of violat-
ing § 843(b). He was acquitted on one distribution count.
He was sentenced to a prison term of 324 months. In
addition to conspiracy, Deshun Smith was convicted of two
counts of § 843(b) violations. He was sentenced to 92
months in prison. Gino McMahan was convicted of conspir-
acy and a substantive count of distribution of cocaine. He
was acquitted of two § 843(b) charges. His prison sentence
is 312 months. Brian Nelson was convicted of conspiracy
but acquitted of two counts of § 843(b) violations. He was
sentenced to 250 months in prison. Finally, DeAngelo
McMahan—as we said—was acquitted of the conspiracy
charge as well as one count of violating § 843(b). He was
convicted of one § 843(b) charge. His sentence is 48
months.
The defendants raise a number of issues on appeal,
many of which are applicable to all of them.
The first issue involves testimony about wiretap proce-
dures. Defendants contend that admission of certain
testimony of Special Agent Mark Horton of the FBI, the
case agent in charge of this investigation, was an abuse of
discretion. Part of Horton’s testimony set out the proce-
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 3
dures used to obtain approval to wiretap a suspect’s
telephone conversations. Under these procedures, the
agents prepare an affidavit in support of a request for a
court order allowing the wiretapping. The affidavit is
reviewed by the local United State’s Attorney’s office, after
which it is sent to the Department of Justice in Washing-
ton for its approval of the request. After DOJ approval is
received, the request is presented to the chief judge of
the relevant district for consideration. If an order allowing
the interceptions is signed, monitoring can begin. Horton
went on to explain that every 10 days a report must be
prepared for the chief judge’s review to see whether the
wiretaps reveal criminal activity so that the intercep-
tion can continue. Horton testified that there were wire-
taps on five different cell phones from December 2003 to
March 2004.1 The jury instructions stated that the wire-
tap conversations “were legally intercepted by the gov-
ernment.”
Defendants are correct that our decision in United States
v. Cunningham, 462 F.3d 708, 709-10 (7th Cir. 2006),
holds that testimony almost identical to Horton’s was
inadmissible. We said that the testimony
suggested to the jury that a panel of senior govern-
ment lawyers in the Office of the Attorney General
in Washington, D.C. and others in law enforcement
were of the opinion that there was probable cause to
believe the defendants were indeed engaging in crimi-
nal activity. The admission of this irrelevant evidence
had the effect of improperly bolstering the credibility
1
A wiretap order allows monitoring for a maximum of 30 days.
There were several orders in this case running from December
15, 2003, to January 13, 2004; from January 16, 2004, to January
26, 2004; from January 28, 2004, to February 3, 2004; and from
February 9, 2004, to March 9, 2004.
4 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
of the government’s case in the eyes of the jury, and
the error was not harmless.
The difference between that case and this one, however, is
that in Cunningham there was an objection to the testi-
mony, making our review for an abuse of discretion.
Here—though defendants argue otherwise—there was no
objection. For that reason, our review is only for plain
error, a much harder row for the defendants to hoe.
In an attempt to escape plain error review, the defen-
dants argue that (1) a motion in limine the government
filed before trial and (2) an objection on another basis
lodged somewhat late in the testimony require a finding
either that no objection was needed at trial or that, in fact,
an objection was made. We cannot agree with either
proposition.
The government’s motion in limine sought to preclude
testimony challenging the legality of the wiretaps. The
district judge (Amy J. St. Eve) ordered that
[t]he government’s motion to preclude testimony
regarding the legality of the Title III wiretap is
granted. Defendants have not challenged the legality
of the Title III wiretap in court. If they wish to chal-
lenge the legality of the wiretap, the only proper way
to do so is to raise it with the court, not the jury.
The defendants say that this order sufficiently preserves
the issue of Horton’s testimony for appeal. Unfortunately
for them, it does not.
In Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999), we
considered the circumstances under which a pretrial
objection eliminates the need for a simultaneous objection
at trial. The concern surrounding the issue is at least two-
fold—to prevent trapping an unwary attorney who doesn’t
repeat at trial an objection he raised before trial and, at
the same time, to prevent both the judge and the adver-
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 5
sary from being sandbagged and allowing preventable
errors from occurring. We said that only “arguments that
were actually presented to the district court before trial
are preserved for appeal—and then only if the district
judge came to a definitive conclusion.” At 567. We added
that a “ruling on a particular use of evidence does not
preserve an objection to a different and inappropriate use.”
Id.In the present case, the government’s motion in limine,
which sought to preclude testimony regarding the legality
of the wiretap, does not preserve for the defense an
objection to testimony regarding the process for obtaining
a wiretap order. The testimony Horton gave deals with the
wiretap application process, not the ultimate legality of
the wiretaps. The testimony did not delve into the affida-
vits in support of the application and the facts on which
the government claimed it had probable cause for a
warrant. The order the judge issued merely informed the
defendants that if they wished to suppress the wiretap
evidence in this case, they had to do so by filing a motion
to suppress for her consideration. The issue could not be
raised before the jury. The order did not preserve the
issue of the inadmissibility of Horton’s testimony.
The defendants also claim that they did, in fact, object
to the testimony. The best that can be said for this claim
is that there was an objection during the testimony. But it
was not lodged when the testimony began and it was not
on point. What happened was that, in response to ques-
tioning, Horton set out the procedures for obtaining the
wiretap. The prosecutor then asked him about the 10-day
review process:
Q. Now, as the calls are being—began to be recorded
on this wiretap that we’re discussing, did you make a
determination as to the content of the calls in order for
the interception to continue past that ten-day mark or
within that ten-day mark?
6 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
A. Yes.
Q. And what was that determination on the wire-
tap—the first wiretap?
A. That criminal conversations were—
MR. BOYD: Objection.
MR. COLLINS: Objection, Judge.
MR. BOYD: Conclusion, Judge.
THE COURT: Sustained. . . . Rephrase your
question.
The inadequacy of these objections to preserve the issue
before us is self-evident. The objection gives no indication
to the judge that the defense is claiming that the entire
line of questioning is improper. And so, because there
was no proper objection to the testimony, our review is
for plain error. United States v. Gray, 410 F.3d 338 (7th
Cir. 2005).
For us to find plain error, the defendants must show
(1) error, (2) that is plain, (3) that “affects substantial
rights,” and (4) that “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
Gray, at 345; United States v. Olano, 507 U.S. 725 (1993).
The first two requirements are met: there was error
and it was plain. The problem for the defendants is that
the testimony cannot be said to have affected their sub-
stantial rights, nor did it affect the fairness and integrity
of the trial. The evidence of the defendants’ criminal
activity was substantial. It showed a conspiracy among
Antonio and Gino McMahan, Smith, and Nelson. Gregory
Hudgins, Carlos Cayton, and Melvin Johnson, all of whom
worked with the defendants at one time or another,
provided testimony about the history of the drug spot at
Washington and Waller. Hudgins, Melvin Johnson,
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 7
Demond Williams, and Maurio Young testified to drug
deals or gun deals at 600 Collections. The jury heard
dozens of calls in which the defendants discussed their
drug business—in code, it is true. But the code is decipher-
able. In addition, there was testimony from buyers
about three of the individual distribution counts, wiretap
evidence, and evidence from surveillance agents. Finally,
there were post-arrest statements from each defendant. In
contrast, none of the evidence came from the affidavits
filed in support of the wiretap applications. There was no
further reference to Horton’s testimony regarding the
procedures, other than that made in his cross-examination.
All in all, although it was error to admit the testimony, the
defendants have not met their burden under the plain
error standard.
The defendants also contend that the denial of their
challenge, pursuant to Batson v. Kentucky, 476 U.S. 79(1986), to the prosecution’s striking of an African-American
juror was clearly erroneous.
The jury selection procedure in this case involved the
seating of all prospective jurors in the courtroom. From
that group, 16 were called to the fore and questioned
regarding their background and ability to be impartial.
After they were questioned, the parties could move to
strike jurors for cause. A number of requests were granted.
The parties then exercised peremptory challenges, after
which six jurors remained to be empaneled. The process
was repeated until the jury was chosen.2
2
The jury selection process used requires the attorneys to
exercise peremptory challenges before they know what other
problems might show up in the remainder of the venire. Although
we are not saying that the process is legally infirm, it would
seem to us to place the attorneys in an unnecessarily difficult
(continued...)
8 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
The first peremptory strike exercised by the government
was of a young African-American man. The defense
immediately raised a Batson challenge, and the govern-
ment was asked to state its reasons for the strike:
First and foremost—and, most importantly—he lives
on Chicago’s West Side.
It was reported, although we did ask the follow-up
question with the Zip Code—and, unfortunately, none
of us were able to place that Zip Code—as to whether
or not it was the area of Washington and Waller. We
still had concerns.
Those concerns were, then, seconded by a comment
that was reported to us by Agent Helen Dunne, from
some individuals who appear to be here perhaps
because they are relatives or friends of the defendants;
a comment that was remarked—that she overheard—
where they said, “Oh, that’s a good Zip Code.” That
gave the government some concerns.
Secondly, he has stated that he has a number of
friends who have been arrested; and, while the govern-
ment recognizes that we did not—or we would have
run out of pre-emptories if we had exercised all
arrests—it seemed like there were—the numerous
nature of these individuals that gave the government
concerns.
And, for those reasons, we exercised a pre-emptory
challenge.
In response to this explanation, the defense highlighted a
number of facts and arguments: that the government did
2
(...continued)
position, which could be eliminated by the exercise of peremp-
tory strikes after all the jurors were questioned.
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 9
not strike all people with arrests in their backgrounds;
that living on the west side of Chicago was not a good
basis for a strike; that the Zip Code in which the potential
juror said he lived was not the Zip Code of the site of the
drug dealing in this case; and that another potential
juror, who was white, had a brother in a correctional
institution on a drug charge, yet he was not stricken. The
prosecutor defended the decision not to strike the latter
prospective juror because he seemed to have a distant
relationship with his brother. Judge St. Eve pointed out
that she excused for cause one person whose son had been
nearly fatally beaten over a drug debt. Saying that the
government had offered appropriate race-neutral reasons
for their strike, the judge denied the Batson challenge. In
a later written decision, she explained further, saying
she carefully evaluated the demeanor of both the at-
torney exercising the challenge and of the excused juror.
She concluded:
The government identified a number of race-neutral
factors for exercising a peremptory strike on Mr.
Pryor. The Chicago Police Department (“CPD”) had
arrested Mr. Pryor the prior year for gambling. The
charges were ultimately dropped. Although Mr. Pryor
said that he thought the CPD had treated him fairly,
the Court questioned his veracity when he answered
this question. In addition, several of Mr. Pryor’s
friend[s] had been charged with crimes involving
drugs and weapons. Some of them were also convicted
of these crimes. The charges in this case involve drugs
and weapons. Finally, Mr. Pryor lived on the west
side of Chicago, the same general location where the
Defendants’ activities in question took place. Looking
at the totality of Mr. Pryor’s responses, the Court
found that the government had offered a race-neutral
reason for striking Mr. Pryor.
10 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
Batson involves a three-step analysis. First, the defen-
dants must establish a prima facie case of discrimination.
Next, the prosecutors must offer a race-neutral explana-
tion for the strike. Finally, the defendants must prove the
reason offered is pretextual. It is not necessary for a
defendant to show an exactly identical white juror who was
not removed. Miller-El v. Dretke, 545 U.S. 231 (2005). Our
review is for clear error. United States v. James, 113 F.3d
721 (7th Cir. 1997).
We agree with the district judge that the prosecution
offered race-neutral reasons for the strike, in fact, quite
convincing explanations for the strike. The defense has
not shown that the reasons were pretextual. That the
reasons are not pretextual is supported as well by the
fact that three black jurors were empaneled as the jury
selection process continued.
Defendants also contend that the government’s closing
argument violated their right not to testify and that their
motion for mistrial was improperly denied. Our review is
for an abuse of discretion. United States v. Aldaco, 201
F.3d 979 (7th Cir. 2000).
During cross-examination of Special Agent Horton,
counsel for defendant Nelson implied that there were
many telephone calls the government failed to present to
the jury. Later, during closing arguments, defense counsel
said that the calls the jury heard were merely a small
number of the 11,000 calls recorded.3 She claimed the
calls were out of context and there were intervening
calls which might entirely change the meaning of the
calls presented. In rebuttal, the prosecutor stated that
the defense had all 11,000 calls and that if they wanted
3
A statement that might merely have made the jury grateful to
the government.
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 11
them played they could play them. At that point, defen-
dants objected, saying the government was shifting the
burden of proof; they moved for a mistrial. Judge St. Eve
denied the motion but instructed the jury on the burden of
proof.
In reviewing a district court’s denial of a motion for a
mistrial based on statements made in closing arguments,
we must determine whether the prosecutor’s arguments,
when viewed in isolation, were improper; and if the
comments are found to be improper, whether in light of the
record the remarks deprived the defendant of a fair trial.
Aldaco.
The prosecutor did not improperly comment upon any
defendant’s failure to testify. While a prosecutor cannot
comment on a defendant’s failure to present evidence
in situations in which the defendant is the only person
who could have supplied the evidence, pointing out the
failure to present evidence other than the defendant’s
testimony does not implicate the privilege against self-
incrimination. United States v. Sblendorio, 830 F.2d 1382(7th Cir. 1987). Here, the comment corrected the implica-
tion in counsel’s closing which might have left the jury
with the impression that defendants were at the govern-
ment’s mercy as to which tapes were played. The govern-
ment is allowed to correct such misinformation. It was not
necessary for a defendant to testify in order to present
the tapes. The fact is that the defense had access to the
tapes and could have played any, assuming they were
relevant, that could have cast doubt on their guilt. The
prosecutor’s comments were not improper.
Neither did the comment shift the burden of proof. The
comment simply rebutted the implication that the govern-
ment was hiding something from the jury. Furthermore,
immediately after the comment, the judge stopped every-
thing and instructed the jury as to the burden of proof.
12 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
When the prosecutor resumed her argument, she repeated
the proper burden of proof. Even if the comment could
somehow be said to be improper, looking at the record as
a whole, we see no basis for saying that the denial of a
motion for a mistrial on this issue was an abuse of dis-
cretion.
Antonio McMahan contends that his constitutional
rights were violated by the admission of post-arrest
statements of Gino McMahan and Nelson. We review such
questions de novo. United States v. Hernandez, 330 F.3d
964 (7th Cir. 2003).
Before trial, Antonio McMahan filed a motion to sever
his trial from the others, raising this issue. The district
judge found that any problem arising in this case under
Bruton v. United States, 391 U.S. 123 (1968), could be
corrected by redacting the statements per our decisions in
United States v. Souffront, 338 F.3d 809 (7th Cir. 2003),
and United States v. Ward, 377 F.3d 671 (7th Cir. 2004).
We agree. And, in fact, references to McMahan were
redacted from the statements.
McMahan’s argument, though, also is that the govern-
ment “made a mockery of the protections afforded by the
Sixth Amendment . . . in the way they tailored the presen-
tation of their evidence.” His example is that Nelson’s
statement was to the effect that he did not have an
expensive car and that he had been arrested for moving
drugs for other individuals. McMahan says that immedi-
ately after Nelson’s statement was presented, the gov-
ernment showed the jury a photograph of McMahan’s
expensive car and that immediately before Nelson’s
statement was introduced, the government played calls
regarding instructions McMahan was giving Nelson.
Similarly, Gino McMahan’s statement contained references
to Shawanda Dunbar, and immediately after that state-
ment was introduced, calls between Dunbar and Antonio
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 13
were introduced. Antonio McMahan argues that the
government tailored its evidence to do exactly what Bruton
was designed to prevent.
We simply cannot buy into this fanciful argument.
Antonio McMahan does not contend that the photograph of
the car or the calls could not have been introduced at some
point in the trial. It is the timing which he contends skirts
Bruton. We will not analyze the order of the evidence to
see whether it raises unfair inferences of guilt.
Another evidentiary issue involves allegedly hearsay
statements and testimony from law enforcement agents
about their assignments.
Two law enforcement officers were asked what sort of
work they did. Special Agent Horton said he primarily
investigated violent street gangs and that some of his
cases include drug cases. Officer Sal Colello testified that
his past work with the Chicago Police Department was as
a gang crime specialist but that he had been assigned to
the FBI as a task force officer. He said that with the FBI
he participated in gang and narcotics investigations. From
these questions regarding the background of the two
officers, the defendants, relying on United States v. Irvin,
87 F.3d 860, 864 (7th Cir. 1996), argue that here, as in
Irvin, there is a “substantial risk of unfair prejudice
attached to gang affiliation evidence, noting such evidence
‘is likely to be damaging to a defendant in the eyes of the
jury . . . .’ ” What the defendants do not point out is that
Irvin also says that, under “appropriate circumstances,”
gang evidence has probative value, warranting its admis-
sion.
So Irvin does not forbid all gang evidence. But, more
importantly, nothing about Irvin is particularly relevant in
the present case. Irwin dealt, as it says, with “gang
evidence”—that is, the defendant’s membership in a gang,
the Diablos motorcycle gang. The evidence included
14 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
testimony about a large gang tattoo on a defendant’s
back, two rings (one which said Diablos and one with a
devil’s head), a picture of a vest with gang insignia, a
Diablos “greeting card,” a Diablos wallet, and other gang-
related personal effects. One defendant testified that a
motorcycle gang would kill him if he testified. The evidence
in Irvin was found to be prejudicial and not harmless. The
evidence in the present case cannot be compared in any
meaningful way with that in Irvin. Here, the officers said
they did gang investigations; they did not say that is all
they did. They did not say that the defendants were
members of a gang. In total, the testimony lasted a few
minutes in a two-week trial. The evidence was not unfairly
prejudicial, but even were we somehow to find prejudice,
we would also find the admission of the evidence harmless.
The other evidentiary error alleged is the admission of
statements which defendants contend were irrelevant or
were hearsay offered for the truth of the matter asserted.
One statement was that of a cooperating witness, Demond
Williams, who said that in 1999 he talked to Bryant Riddle
who told him that he was dealing drugs with Antonio. The
other statement was from another cooperating witness,
Maurio Young, who testified that a friend of his said that
Gino McMahan charged outrageously high prices for
drugs. In this case, it was not an abuse of discretion to
admit the statements. Such statements are admissible if
they are offered to provide context for the testimony. See
United States v. Van Sach, 458 F.3d 694 (7th Cir. 2006).
And in any case, neither statement could have been said to
affect the result of the trial. In addition, as to Riddle’s
statement, the jury was given a limiting instruction.
Next, the defendants claim they should have been
granted a new trial based on newly discovered evidence.
The evidence involved is subject to the requirements of
Brady v. Maryland, 373 U.S. 83 (1963); consequently, we
must determine whether, if disclosed, the evidence might
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 15
have changed the outcome of the trial. United States v.
Boyd, 55 F.3d 239 (7th Cir. 1995).
The evidence involves two of the government’s witnesses.
Gregory Hudgins testified about his long-time drug dealing
with some of the defendants. He was vigorously cross-
examined about his past criminal activity. But the defense
claims that it learned after trial about other evidence
implicating Hudgins in the murders of Alvin Pruitt and a
person nicknamed “K-Mart.”
The other witness is Carlos Cayton. The defense learned
that prior to trial the government had offered relocation
assistance to Cayton’s family because of threats made
against them. The family declined. But during the trial, a
few days before Cayton testified, the family decided to
relocate and moved three days after Cayton testified. It
was not until two and one-half months later that the
defense learned of the relocation. Also, Cayton was in
state custody during the trial. After his release from
custody he, too, was provided relocation funds because
of his fear of retaliation for testifying against the defen-
dants.
The government’s duty to disclose evidence favorable to
the defense under Brady includes impeachment evidence.
Strickler v. Greene, 527 U.S. 263 (1999); United States v.
Wilson, 481 F.3d 475 (7th Cir. 2007). The failure to
disclose evidence, however, does not automatically entitle
a defendant to relief. A defendant may obtain relief only if
the nondisclosure deprived him of a fair trial. United
States v. Bagley, 473 U.S. 667 (1985). In order to obtain a
new trial, a defendant must establish that the govern-
ment did, in fact, suppress evidence; that the suppressed
evidence is favorable to the defense; and that the sup-
pressed evidence is material. As to the latter point, the
nondisclosure must be so serious that there is a reason-
able probability that the evidence would have resulted in
16 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
a different verdict. A probability of a different result is
shown where the suppression undermines confidence in
the outcome of the trial. Kyles v. Whitley, 514 U.S. 419(1995).
Looking first to the additional evidence that Hudgins
may have been involved in murders, we concur with the
defense that such evidence is favorable to them in their
attempt to impeach Hudgins. The problem is that they
were able to cross-examine Hudgins at length about the
murder of Pruitt and other acts of violence and drug
dealing. As to the Pruitt murder, the attorney for Antonio
McMahan engaged in the following exchange with
Hudgins:
Q. Didn’t a guy named Alvin Pruitt owe you about
$4,000?
A. Yes.
....
Q. And didn’t you know that you were a suspect in his
murder? He was murdered, right?
A. Yes.
Q. Didn’t you know you were a suspect in his murder?
A. Yes.
Q. And you were real concerned about that, right?
A. Yes, because it wasn’t true.
A few questions later:
Q. Is that your testimony? You were not involved in
the murder of Alvin Pruitt in 2003?
A. That’s correct.
Q. And the people who say you were have made that
up; is that your testimony?
A. I guess so.
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 17
There is much other cross-examination, as well, about
Hudgins’ drug dealing, carrying guns, and violent be-
havior. There was also significant examination about
Hudgins’ plea agreement, entered pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure,
which makes the agreed sentencing range binding on the
district judge once the plea is accepted. Hudgins was
eligible for a life sentence, but as a result of his agreement
to testify, his sentence was to be between 13 and 17 years.
In light of all this fodder for cross-examination, we cannot
find that the failure to inform the defense about other
evidence would have made a difference in the outcome of
this trial. Hudgins was shown to have reaped considerable
benefit from testifying; in addition, he was clearly
shown to be a dangerous, unsavory character. We cannot
conclude the withheld information would have resulted
in a different verdict.
The claim regarding the relocation of Cayton’s family is
even less compelling. It is evidence which, as we say, cuts
both ways. If counsel had cross-examined Cayton regard-
ing the relocation of his family, the government would
likely have been permitted to inquire about why the
relocation was taking place—that is, that the family
feared retaliation by the defendants. It is hard to see
why such information would be beneficial to the defen-
dants or could possibly lead to a different verdict. The
motion for a new trial was properly denied.
Finally, we turn to sentencing issues—two of which are
raised simply to preserve them. The first, raised by
Antonio McMahan and Smith, involves the use of the
preponderance of the evidence standard to make factual
findings in order to determine the appropriate offense
level under the United States Sentencing Guidelines. We
decline to reconsider our decision in United States v.
Reuter, 463 F.3d 792 (7th Cir. 2006). Antonio and
DeAngelo McMahan, Smith, and Nelson also seek to
18 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
preserve an argument regarding the different treatment
under the guidelines of crack cocaine and powder co-
caine—the 100-to-one ratio. The Supreme Court has
granted certiorari in Kimbrough v. United States, No. 06-
6330 (U.S. June 11, 2007), which presents the question
whether district judges must continue to use the 100-to-1
ratio, even if, as in United States v. Miller, 450 F.3d 270(7th Cir. 2006), the judge prefers a different approach. The
district judge in this case did not express dissatisfac-
tion with the statutory ratio, so the appeal need not be
held for Kimbrough, as appellants cannot benefit unless
the Supreme Court were to hold that district judges must
use a different ratio, and no such argument was ad-
vanced in the Kimbrough petition.
DeAngelo McMahan raises other issues regarding his
sentencing. First, he alleges that his sentence should be
vacated because the only count on which he was con-
victed was a telephone count in which the conversation
related to a pound of marijuana, but nevertheless he
was sentenced on the basis of 255 grams of cocaine base,
an amount which depends on his involvement in the drug
distribution conspiracy, of which he was acquitted. We
review the district court’s factual findings at sentencing
for clear error and the application of the facts to the
sentencing guidelines de novo. United States v. Haddad,
462 F.3d 783 (7th Cir. 2006).
The question is whether the distribution of crack cocaine
is relevant conduct to the offense of conviction. Relevant
conduct can be used to enhance a defendant’s sentence if
it is part of the same course of action or common scheme or
plan that gave rise to his conviction. Relevant conduct
must be established by a preponderance of the evidence.
United States v. Johnson, 342 F.3d 731 (7th Cir. 2003). We
look for a “strong relationship between the uncharged
conduct and the convicted offense, focusing on whether the
government has demonstrated a significant ‘similarity,
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 19
regularity, and temporal proximity.’ ” United States v.
Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005) (citations
omitted).
During trial, Judge St. Eve of course heard evidence as
to DeAngelo McMahan’s involvement in the conspiracy.
Despite hearing all the trial evidence, in considering
the issue of whether McMahan could be held responsible
for the distribution of crack, she also entertained extensive
argument. She then made findings regarding McMahan’s
involvement in the distribution, saying she believed FBI
Special Agent Jay Darin, who testified regarding the
admissions made by McMahan. In addition, there were
recorded conversations which showed McMahan’s in-
volvement in the distribution of crack. There is no basis
for us to say that the finding—by a preponderance of the
evidence—that McMahan was responsible for 255 grams
of crack cocaine was clearly erroneous.
Neither is there error in the finding that DeAngelo
McMahan’s involvement with crack was relevant to his
conviction on the telephone count. Two incidents can be
considered part of a common scheme if they are connected
by at least one common factor, such as “common victims,
common accomplices, common purpose, or similar modus
operandi.” U.S.S.G. § 1B1.3(a)(2), App. Note 9. To assess
whether two or more offenses are part of the same course
of conduct, we look for a strong relationship between the
two by examining “whether the government has demon-
strated a significant ‘similarity, regularity, and temporal
proximity [between] the uncharged acts and the offense of
conviction.’ ” United States v. Acosta, 85 F.3d 275, 281 (7th
Cir. 1996). In this case, the telephone call on December 23,
2003, which provides the basis for his conviction, was
temporally proximate to other calls relating to crack and
to his cooking cocaine into crack. It was not error for the
judge to find that there was a common course of conduct
20 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
on that night, which included the telephone conversation
about marijuana and the cooking of crack.
DeAngelo McMahan also argues that sentencing him to
the statutory maximum for his offense of conviction
because of conduct of which he was acquitted violates his
constitutional rights. We reject the contention. A sentence
at the top of the statutory range does not punish a defen-
dant for a crime he did not commit. United States v.
Masters, 978 F.2d 281 (7th Cir. 1992).
Another contention involves a 2-level obstruction of
justice enhancement. DeAngelo McMahan says there were
insufficient facts on which to base the enhancement. We
cannot agree. The findings on the issue were sufficient
under United States v. Dunnigan, 507 U.S. 87 (1993). The
judge compared the credibility of McMahan and Special
Agent Darin and, as we said, specifically found the agent
credible. Conversely, she found that DeAngelo McMahan
testified untruthfully in that his testimony contradicted
his earlier post-arrest statements; for that reason she
found he made willful false statements. Further, she found
that his version of events was diametrically opposed to
that of other witnesses so that “one version had to be a
lie.” Continuing with the Dunnigan factors, she found
that the false statements were material and were made
under oath. It was not clearly erroneous to impose the
obstruction of justice enhancement.
Brian Nelson also contends that he must be resentenced,
both because of errors in the calculation of his criminal
history and of drug quantities attributable to him. We
agree.
And, in fact, as to the criminal history category, the
government also agrees and concedes that the calculations
were erroneous. The government does not concede, how-
ever, that an error occurred in the drug calculation.
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 21
Nelson was convicted on the conspiracy count. The jury
found that he was responsible for less than 500 grams of
cocaine, less than 5 grams of cocaine base, and less than
100 grams of heroin. The presentence report stated that he
was responsible for 52.55 grams of crack, no cocaine, and
16.1 grams of heroin. At sentencing, the government urged
that Nelson be held responsible for 1.5 kilograms of crack
cocaine and 3 kilograms of heroin. The district court
followed the recommendations in the presentence report.
The record is a bit hard to follow as to how the calcula-
tions were made. At one point at sentencing, Judge St. Eve
said that “52.55 grams of crack cocaine can be attributed
to Mr. Nelson, based on the arrests during the five occa-
sions set forth in the Presentence Investigation
Report . . . .” At first it appears that those arrests were
the ones listed in the report on December 17, 1997,
February 15, 1999, March 18, 1999, June 18, 1999, and
March 26, 2003. Taken at face value, the amounts relevant
to those arrests add up to about 41 grams of crack. But the
judge upheld an objection to the June 18, 1999, amount
on the basis that the drug seized was heroin, not crack,
thus subtracting 2.4 grams. Then the report says on
February 20, 2004, Nelson was arrested for possessing and
selling crack cocaine. The amount on that day was 13.9
grams, bringing the total to 52.55 grams—or the amount
relied on for determining the offense level. So the five
arrests must include the one on February 20, 2004.
Nelson objects to the calculations on two grounds: one,
that the amounts are gleaned from arrest reports which,
relying on United States v. Robinson, 164 F.3d 1068 (7th
Cir. 1999), he says are inherently unreliable. Then, as to
the February 20, 2004, arrest, there is, he says, no evi-
dence connecting these drugs to the conspiracy.
We are not convinced that these arguments were ade-
quately addressed by the district judge, who seemed to
22 Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739
think that United States v. Booker, 543 U.S. 220 (2005),
gave her more leeway in calculating the guideline range
than she would have had prior to Booker. Her finding
merely was:
It is this Court’s position, because the guidelines are
not mandatory and are merely advisory, that I can
look to arrest reports in determining and calculating
drug quantities.
There is no basis, however, to conclude that something
that may not have been reliable prior to Booker is suddenly
an acceptable basis for a finding after Booker. To the
contrary, we have made clear that the first step in post-
Booker sentencing is a properly calculated guideline range.
United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005);
see also Rita v. United States, 2007 WL 1772146 (June 4,
2007). The method for that calculation has not changed or
become less demanding. See United States v. Cunningham,
429 F.3d 673 (7th Cir. 2005). It still requires “sufficient
indicia of reliability” to support its “probable accuracy.”
United States v. Taylor, 72 F.3d 533, 543 (7th Cir. 1995);
see Shepard v. United States, 544 U.S. 13 (2005). The
basis for thinking the information is reliable needs to be
explained. Accordingly, Brian Nelson must be resentenced.
In sum, except as to the sentence of Brian Nelson, the
judgments of the district court are AFFIRMED. The sentence
imposed on Brian Nelson is VACATED and his case is
REMANDED for resentencing.
Nos. 05-3379, 05-3645, 05-3648, 05-3667 & 05-3739 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-20-07