United States v. Goodwin, Victor ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3057, 06-3658, 06-3660 & 06-4047
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR GOODWIN, a/k/a BLOCK, a/k/a SKEEZY,
JERMAL PHILLIPS, TIMOTHY DOERR, and LEO BROWN, JR.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
Nos. 04-19-CR-01, 04-19-CR-02, 04-19-CR-014 & 04-19-CR-17—
Richard L. Young, Judge.
____________
ARGUED MAY 4, 2007—DECIDED JULY 23, 2007
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. A jury convicted Victor Goodwin,
Leo Brown, Jr., Timothy Doerr, and Jermal Phillips of
multiple counts of drug trafficking and other related
offenses stemming from a multi-state conspiracy. Follow-
ing their convictions, the four defendants filed a con-
solidated appeal challenging various aspects of their
respective convictions and sentences. We affirm.
2 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
I.
Victor Goodwin, Leo Brown Jr., Timothy Doerr, and
Jermal Phillips (collectively the “Appellants”) were among
twenty-one defendants named in a July 14, 2004, federal
indictment charging drug trafficking and related offenses.
Specifically, the Appellants and seventeen co-defendants
were charged with conspiring to possess with the intent
to distribute and to distribute in excess of fifty grams of
cocaine base, in excess of five kilograms of cocaine, and
in excess of 100 grams of heroin and marijuana (Count
One). Goodwin also was charged with distribution of in
excess of five grams of cocaine base (Counts Five, Six,
Seven, Nine, and Twelve), distribution of in excess of fifty
grams of cocaine base and cocaine (Counts Eleven and
Thirteen), and possession with the intent to distribute in
excess of fifty grams of cocaine base, cocaine, and heroin
(Count Twenty-five). Brown, Doerr, and Phillips addi-
tionally were charged with the use of a telephone to
facilitate the distribution of cocaine and cocaine base
(Count Seventeen). Finally, Phillips also was charged
with distribution of in excess of five grams of cocaine
base (Count Fourteen). The basic facts of the drug conspir-
acy, the object of which was to traffic drugs from Chicago
for sale in southern Indiana, are not challenged on appeal.
In 2003, law enforcement in Evansville, Indiana, first
discovered one tentacle of the conspiracy’s illegal drug
activity, which resulted in a joint federal, state, and local
law enforcement investigation spanning three states. The
investigation began with a series of controlled purchases of
cocaine base and cocaine from several individuals, in-
cluding Goodwin and Phillips. While the controlled buys
allowed law enforcement to discover some of the con-
spiracy’s Evansville-based, lower-level participants, those
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 3
street dealers did not disclose information regarding the
primary source of the drugs and high-level dealers at the
top of the conspiracy’s hierarchy. The results of the in-
itial investigation, however, provided the Drug Enforce-
ment Administration (“DEA”) with a basis to apply for
a warrant authorizing electronic telephone wire surveil-
lance against known members of the conspiracy. On April
29, 2004, the district court authorized the electronic
wire surveillance of two telephones used by Michael
Hardiman and a second individual. During the course of
the electronic telephone wire surveillance, law enforce-
ment authorities intercepted numerous conversations
involving the Appellants, which detailed their distribu-
tion of cocaine base and cocaine.
Based on the information gained from the confidential
informants and the electronic telephone wire surveillance,
the government obtained indictments against the Appel-
lants and their co-conspirators. Many of the Appellants’ co-
conspirators, including Hardiman, pleaded guilty and
testified against the Appellants during their trial, which
began on February 6, 2006, and concluded less than two
weeks later. The jury found the Appellants guilty on all
counts. Goodwin then moved for a new trial, and later
was joined in his motion by the other Appellants. The
district court denied Goodwin’s motion.
Goodwin, Brown, Doerr, and Phillips filed a consolidated
appeal challenging various aspects of their respective
convictions and sentences. Additional details and the facts
underlying the Appellants’ theories and claims are set
forth, as relevant, in the analysis below.
4 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
II.
On appeal, the Appellants first collectively challenge the
district court’s orders of April 29, 2004, and May 27, 2004,
that authorized and then re-authorized electronic tele-
phone wire surveillance on certain members of the conspir-
acy. Specifically, the Appellants argue that it was unneces-
sary for the government to use electronic telephone wire
surveillance in its investigation of the conspiracy because
the continued use of confidential informants would have
been more than sufficient to expose the entirety of the
criminal activity and enterprise. This court reviews a
district court’s decision regarding the necessity of elec-
tronic telephone wire surveillance for abuse of discretion,
“giving substantial deference to the determination of the
issuing judge.” United States v. Zambrana, 841 F.2d 1320,
1329-30 (7th Cir. 1988).
While probable cause is all that is needed for the govern-
ment to obtain a search warrant, to obtain a warrant for
electronic telephone wire surveillance under 18 U.S.C.
§ 2518(1)(c), the government must demonstrate a factual
basis for its “ ‘statement as to whether or not other investi-
gative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be
too dangerous.’ ” Zambrana, 841 F.2d at 1329 (quoting 18
U.S.C. § 2518(1)(c)). “In this circuit, we will affirm a district
court’s finding that normal investigative procedures [were]
unlikely to be successful . . . [as long as] there exist[ed] a
factual predicate in the affidavit.” Id. at 1330 (internal
citations and quotations omitted). Accordingly, we look to
the affidavits that the government supplied to support its
two applications for electronic telephone wire surveillance.
Here, the government’s original forty-two-page affidavit
in support of its application, and its sixty-four-page
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 5
affidavit in support of its re-application, reasonably
explained why the continued use of confidential infor-
mants would not accomplish the goals of the investigation
and why a new method of surveillance was necessary. The
government’s affidavits also stated that, while the gov-
ernment initially had success using confidential infor-
mants, that technique likely would yield limited future
results because of the informants’ reluctance to testify, their
inability to identify suppliers within the organization
outside of Evansville, their inability to identify all of the
local distributors within the organization, and their lack of
information concerning locations used by the organization
to store drugs outside of Evansville. Finally, the govern-
ment’s affidavits stated that information gleaned from the
electronic telephone wire surveillance could be used to
recruit future confidential informants who subsequently
could be used instead of relying on future electronic
surveillance. Based upon the information contained in the
government’s affidavit—the validity of which the Appel-
lants have not challenged—we find that the district court
did not abuse its discretion in authorizing the electronic
telephone wire surveillance, which was necessary for the
government’s investigation.
Second, the four Appellants collectively argue that the
district court should have granted the Appellants’ motion
for a new trial.1 The Appellants’ motion for a new trial was
based on a document purporting to be a trial witness’
admission of perjury. This court reviews a district court’s
denial of a motion for a new trial based on the alleged use
of perjured testimony for abuse of discretion. United States
v. Payne, 102 F.3d 289, 291-92 (7th Cir. 1996).
1
Goodwin originally brought the motion for a new trial, and
the other three Appellants subsequently joined.
6 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
The Appellants proffered a document in support of their
motion for a new trial that purported to be a notarized
statement from Seneca Binder, a former informant who
testified against the Appellants. In the document, which
the Appellants appended to their motion, Binder apolo-
gized for “committing an act of perjury in the trial of U.S.
-vs- Goodwin” and for testifying “falsely against Mr.
Goodwin.” On June 1, 2006, the district court held a
hearing on the motion. The Appellants called Binder as a
witness. Binder testified that it was his signature on the
document, but he did not draft or read the document prior
to signing it. He also testified that he felt threatened by
another jail inmate when told to “put your name right
here,” and stated that a notary was not present when he
signed the document. Binder then informed the district
court that the contents of the document were untrue and
reaffirmed the truth of his testimony at trial. Based on
Binder’s testimony during the hearing, the district court
denied the Appellants’ motion for a new trial. On appeal,
the Appellants rely solely on Binder’s alleged recantation
letter to support their argument. In light of Binder’s
testimony regarding the coercive and dubious circum-
stances under which he signed the letter, we find that the
district court did not abuse its discretion in denying the
Appellants’ motion for a new trial.
Third, the Appellants collectively argue that the district
court should not have allowed DEA Special Agent Douglas
Freyberger to testify at trial as an expert witness on drug
code language. Specifically, the Appellants assert that
because Special Agent Freyberger testified at trial on the
government’s behalf as a fact witness based on his role as
a case agent, the district court should have barred him
from also testifying as an expert in interpreting drug code
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 7
language. The Appellants are not challenging the reliability
or relevance of Special Agent Freyberger’s testimony.
Accordingly, the Appellants’ challenge is based solely on
their contention that Special Agent Freyberger’s testimony
as both a fact witness and an expert witness was confusing
to the jury and thus unduly prejudicial to them.2 This court
reviews a district court’s decision to admit expert testi-
mony for abuse of discretion. United States v. Ceballos, 302
F.3d 679, 686 (7th Cir. 2002).
We previously have held that while testimony in dual
roles could be confusing, it is permissible provided that the
district court takes precautions to minimize potential
prejudice. United States v. Mansoori, 304 F.3d 635, 654 (7th
Cir. 2002) (“Although we have acknowledged that there is
a greater danger of undue prejudice to the defendants
when a witness testifies as both an expert and a fact
2
At the onset of Special Agent Freyberger’s testimony, the
government asked a series of questions to establish Special
Agent Freyberger’s qualification as an expert in drug code
language. We note that “[t]his Court has recognized that
narcotics code words constitute an appropriate subject for ex-
pert testimony, and that federal agents who have training and
experience in drug-related transactions, crimes and prosecu-
tion are qualified to give expert testimony concerning the
practices of those engaged in this type of activity.” United States
v. Hughes, 970 F.2d 227, 236 (7th Cir. 1992) (internal citations
and quotations omitted). The government’s examination of
Special Agent Freyberger revealed that he had extensive
experience in this area of law enforcement, and in particular the
lingo used in the illegal drug trade. On appeal, the Appellants
do not challenge Special Agent Freyberger’s qualification as an
expert, and concede that he “may have been qualified as an
expert in ‘code talk’ in drug conspiracies.”
8 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
witness, we have also indicated that a police officer may
permissibly testify in both capacities.” (internal citations
omitted)). “The potential for prejudice in this circumstance
can be addressed by means of appropriate cautionary
instructions and by examination of the witness that is
structured in such a way as to make clear when the witness
is testifying to facts and when he is offering his opinion as
an expert.” Id. In this case, to avoid jury confusion and
prejudice to the Appellants, the district court gave a
pattern jury instruction regarding expert testimony and
permitted the Appellants’ respective counsels to cross-
examine Special Agent Freyberger extensively. Further,
Special Agent Freyberger’s testimony was limited to two
subjects: (1) the foundation for the wiretaps (as a fact
witness); and (2) interpretation of code language used (as
a expert witness). While Special Agent Freyberger pro-
vided his testimony in both capacities during a single trip
to the witness stand, the government structured its ques-
tioning to prevent the two discrete subject matters of his
testimony from overlapping. Accordingly, the district court
did not abuse its discretion when it permitted Special
Agent Freyberger to testify both as a fact witness and as an
expert witness.
Fourth, Brown and Doerr (but not the other two Appel-
lants) argue that the district court erred in determining the
amount of drugs for which each was responsible for
purposes of calculating their advisory Guideline sentenc-
ing ranges. Specifically, Brown and Doerr contest the
attribution of their co-conspirators’ drug quantities in the
calculation of the quantity of drugs for which they are
responsible. This court reviews a district court’s factual
findings for purposes of determining the applicable
advisory Guideline range for clear error. United States v.
McLee, 436 F.3d 751, 765 (7th Cir. 2006).
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 9
It is well settled that “[i]n a drug conspiracy each con-
spirator is responsible not only for drug quantities directly
attributable to him but also for amounts involved in
transactions by coconspirators that were reasonably
foreseeable to him.” Id. (citing United States v. Paters, 16
F.3d 188, 191 (7th Cir. 1994)); U.S.S.G. § 1B1.3(a)(1)(B). A
co-conspirator’s conduct is reasonably foreseeable if the
defendant-conspirator “ ‘demonstrated a substantial degree
of commitment to the conspiracy’s objectives, either
through his words or his conduct.’ ” United States v. Zarnes,
33 F.3d 1454, 1474 (7th Cir. 1994) (quoting United States v.
Edwards, 945 F.2d 1387, 1394 (7th Cir. 1991)). For sentencing
purposes, the Federal Rules of Evidence do not apply,
and the district court may consider a broad range of
information. United States v. Johnson, ___ F.3d ___ , 2007 WL
1583993, at *2 (7th Cir. June 4, 2007) (stating that “a dis-
trict court in determining a sentence is not bound by the
same stringent evidentiary standards as are applicable in
a criminal trial”). Here, the district court considered a
wide array of evidence showing that both Brown and
Doerr were heavily involved in a conspiracy to distribute
kilograms of cocaine and cocaine base. Specifically,
the district court found that the evidence gathered from the
co-conspirators’ testimony and conversations involving
and regarding Brown and Doerr obtained from electronic
telephone wire surveillance confirmed drug amounts
attributable to the conspiracy in excess of 500 grams of
cocaine base and in excess of five kilograms of cocaine. In
particular, the district court considered the quantity of
drugs to which Brown’s and Doerr’s co-conspirator
Hardiman pleaded guilty. Hardiman, who named Brown
as his cocaine and cocaine base supplier, admitted to
distributing at least 500 grams of cocaine base and an
additional one kilogram quantity of cocaine, which, when
10 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
aggregated, converted to 10,000 to 30,000 kilograms of
marijuana and resulted in a base offense level of 36.
Although the jury’s verdict forms could be interpreted to
indicate a finding that the conspiracy was responsible for
lower amounts of cocaine and cocaine base,3 the district
court considered the totality of the evidence and sentenced
3
For each of the four Appellants, the jury was provided with a
separate verdict form. Regarding Count One, the conspiracy
charge, each Appellant’s respective verdict form asked the
jury to find beyond a reasonable doubt whether the Appellant
was guilty or not guilty. After having found each of the Appel-
lants guilty of the offense changed in Count One, each of the
four verdict forms identically instructed the jury to determine
the amount of drugs “involved in the conspiracy.” That query
was divided into two separate questions, one regarding the
amount of cocaine base and one regarding the amount of
cocaine, with four potential ranges from which to select for
each. Despite the fact that these questions asked the jury to
make a finding regarding the total amount of each drug for the
conspiracy, rather than for each individual defendant, the jury
found different amounts of drugs attributable to the con-
spiracy on three of the four verdict forms. On Brown’s verdict
form, the jury found beyond a reasonable doubt a conspiracy
to distribute in excess of 500 grams but less than five kilograms
of cocaine, but no cocaine base. On Doerr’s verdict form the
jury found beyond a reasonable doubt a conspiracy to distribute
and possess with intent to distribute in excess of five grams but
less than fifty grams of cocaine base, but no cocaine. Phillips’
verdict form contained identical quantities as Doerr’s verdict
form. Finally, Goodwin’s verdict form contained the highest
findings of drug quantity, with the jury finding beyond a
reasonable doubt a conspiracy to distribute in excess of fifty
grams of cocaine base and 500 grams but less than five kilo-
grams of cocaine. Neither party addressed these discrepancies
in their briefs or at oral argument.
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 11
Brown and Doerr based on the quantity to which
Hardiman admitted distributing. The district court was not
bound by the jury’s findings regarding drug quantity or
type on the Appellants’ verdict forms, or even by the
evidence that the jury considered. See United States. v. Jones,
371 F.3d 363, 369 (7th Cir. 2004) (stating that “a judge may
consider otherwise inadmissible evidence in calculating
a sentence” provided that the “evidence upon which the
judge relies” has “ ‘sufficient indicia of reliability’ ”).
Further, a district court judge makes findings for sen-
tencing purposes under the preponderance of the evidence
standard of proof, rather than the reasonable doubt
standard of proof used by the jury in determining guilt.
United States v. Sliman, 449 F.3d 797, 800 (7th Cir. 2006)
(stating that “the district court is to use the preponderance
of evidence standard of proof when finding facts that
affect a defendant’s sentence”). Thus, so long as the dis-
trict court’s sentence did not exceed the statutory maxi-
mum allowed based on the jury’s findings as to the
amounts attributable to the conspiracy, the district court is
not bound by the jury’s finding. See United States v. Macedo,
371 F.3d 957, 963 (7th Cir. 2004) (citing United States v.
Hernandez, 330 F.3d 964, 981 (7th Cir. 2003) (reasoning
that Apprendi is inapplicable when the defendant is sen-
tenced below the statutory maximum for the charged
offense)); see also United States v. Booker, 543 U.S. 220, 244
(2005) (stating that “[a]ny fact (other than a prior con-
viction) which is necessary to support a sentence exceed-
ing the maximum authorized by the facts established by . . .
a jury verdict must be admitted by the defendant or
proved to the jury beyond a reasonable doubt”). In this
case, Brown and Doerr do not claim that their sentences
exceeded the statutory maximum allowable based on the
jury’s findings. Therefore, based on the totality of the
12 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
evidence presented against Brown and Doerr at trial and
during the sentencing hearing regarding the total quantity
of drugs involved in the conspiracy, as well as their di-
rect involvement with significant quantities of those
drugs, we find that the district court did not clearly err
in calculating the applicable advisory Guideline ranges
for Brown and Doerr.
Finally, Doerr alone argues that the district court erred by
denying his motion for severance. This court reviews a
district court’s refusal to grant a motion for severance for
abuse of discretion. United States v. Donovan, 24 F.3d 908,
915 (7th Cir. 1994). It is well settled that co-conspirators
who are charged together generally should be tried to-
gether. United States v. Carrillo, 435 F.3d 767, 778 (7th Cir.
2006) (citing Zafiro v. United States, 506 U.S. 534, 537 (1993)).
“The district court is given wide discretion in determin-
ing when the prejudice of joinder outweighs the benefits
of a single trial.” Id. (citing Fed. R. Crim. P. 14). “In all but
the most unusual circumstances, the risk of prejudice
arising from a joint trial is outweighed by the economies of
a single trial in which all facets of the crime can be ex-
plored once and for all.” Id. (internal citations and quota-
tions omitted). In short, “[s]everance should be granted
‘only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about
guilt or innocence.’ ” Id. (quoting Zafiro, 506 U.S. at 539).
Here, Doerr based his motion for severance upon his
intent to employ at trial the affirmative defense of reliance
on public authority based on his prior status as a confiden-
tial informant for the government. The district court,
however, found that Doerr was not entitled to assert the
public authority defense because the electronic telephone
wire surveillance revealed that Doerr engaged in freelance
Nos. 06-3057, 06-3658, 06-3660 & 06-4047 13
drug dealing distinct from the controlled deals that he
made at the government’s instruction as a then-confidential
informant. In other words, the district court found that
Doerr was attempting to play both sides of the street by
continuing to deal drugs independently while making
separate controlled buys for the government. Doerr does
not challenge the district court’s ruling, and thus the
public authority defense cannot serve as the basis for his
challenge to the district court’s denial of his motion for
severance. Moreover, even if Doerr could have asserted the
public authority defense, his assertion of that affirmative
defense would not have required severance because
mutually antagonistic defenses mandate severance only
if acceptance of one defendant’s defense precludes the
acquittal of another defendant, and Doerr’s affirmative
defense did not. Id. (“The mere presentation of mutually
antagonistic defenses does not require severance.” (citing
Zafiro, 506 U.S. at 538)). Further, the district court did not
prevent Doerr from introducing evidence of his past
cooperation with the government, and it allowed Doerr to
cross-examine the government’s witnesses regarding his
service as a confidential informant. Accordingly, Doerr has
failed to demonstrate that he was unduly prejudiced from
being tried jointly with his co-conspirators, and we find
that the district court did not abuse its discretion by
denying Doerr’s motion for severance.
III.
The district court did not err in authorizing and then re-
authorizing electronic telephone wire surveillance on
certain members of the conspiracy, denying the Appellants’
motion for a new trial, allowing DEA Special Agent
Douglas Freyberger to testify at trial as an expert witness,
14 Nos. 06-3057, 06-3658, 06-3660 & 06-4047
determining the amount of drugs for which Brown and
Doerr each were responsible for purposes of calculating
their advisory Guideline sentencing ranges, or denying
Doerr’s motion for severance. Accordingly, we AFFIRM
the Appellants’ convictions and sentences.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-23-07