United States v. Savage, Henry ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1990
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HENRY SAVAGE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 534—John W. Darrah, Judge.
____________
ARGUED SEPTEMBER 7, 2007—DECIDED OCTOBER 17, 2007
____________
Before BAUER, POSNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Henry Savage was convicted of
possession with the intent to distribute 50 or more grams
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced Savage to 210 months’ imprison-
ment. On appeal, Savage challenges the district court’s
failure to sua sponte order a competency hearing, the
district court’s exclusion of evidence supporting Savage’s
coercion defense, and his sentence. For the following
reasons, we affirm Savage’s conviction and sentence.
2 No. 06-1990
I. Background
On July 29, 2003, Savage purchased over 60 grams of
powder cocaine and over 60 grams of crack cocaine from
his cousin. Following a tip from a confidential source, Drug
Enforcement Agency (“DEA”) agents arrested Savage
and confiscated the drugs. Savage waived his Miranda
rights and admitted to DEA Special Agents David Brazao
and John Morris that he made the drug purchase with
the intent to sell.
Savage agreed to cooperate with the DEA against his
narcotics associates, and testified before a grand jury
about various drug transactions. Savage also agreed to
record phone conversations and meetings with Martin
Valdez, a leader of the Latin Kings street gang, with whom
Savage had a business and personal relationship. From
July 29, 2003 until September 29, 2003, Savage recorded
several phone calls and several hours of meetings with
Valdez. Savage continued to meet with government
agents to provide information about his dealings with
Valdez into 2004.
In July 2004, Savage advised the government that he
was no longer willing to cooperate. The government then
filed a criminal complaint against Savage, and on
August 5, 2004, the grand jury returned a four-count
indictment charging Valdez, Savage, and other defendants
with various narcotics offenses. Count Four charged
Savage with possession with intent to distribute in excess
of 50 grams of mixtures containing cocaine base in viola-
tion of 21 U.S.C. § 841(a)(1). The grand jury later re-
turned a superceding indictment charging Savage with
one count of possession with intent to distribute crack
cocaine. All other co-defendants other than Valdez and
Savage pleaded guilty, and a trial was set for both defen-
dants on February 14, 2005. On February 2, 2005, the
district court granted Savage’s motion for severance.
Savage refused to testify against Valdez at Valdez’s trial.
No. 06-1990 3
At Savage’s trial, the government elicited testimony
from Special Agents Brazao and Morris regarding
Savage’s arrest and admissions. The government called
expert witnesses to establish that the recovered drugs
were cocaine base in the form of crack. Savage’s defense,
as pertinent on appeal, was that Valdez coerced him into
purchasing the drugs under threat of physical violence.
Savage testified that a few hours before the drug pur-
chase, Valdez gave Savage $1,500 and ordered him to
“invest that wisely” or else Valdez would “shoot him like
he shot Eddie Hurt,” another member of the Latin Kings.
Savage testified that he informed both Dr. Bernard Rubin,
a forensic psychiatrist who examined Savage to evaluate
his coercion defense, and Special Agent Brazao about
the threat on the morning of July 29, 2003. Both
Dr. Rubin and Special Agent Brazao denied that they
were informed of this threat. Savage also attempted to
introduce evidence of threats made by Valdez after
July 29, 2003. The district court excluded these post-
conduct threats.
The jury convicted Savage, finding by a special verdict
that the substance recovered from Savage constituted over
50 grams of crack cocaine. The district court sentenced
Savage to 210 months in prison, applying a two-level
enhancement for obstruction of justice under the United
States Sentencing Guidelines Manual § 3C1.1.
II. Discussion
On appeal, Savage argues that (1) the district court
erred by failing to order on its own motion a hearing on
Savage’s competency to stand trial; (2) the district court
erred in excluding evidence of threats made by Valdez
after July 29, 2003, the date Savage purchased the drugs;
(3) the district court failed to make adequate findings to
support a two-level enhancement for obstruction of justice
4 No. 06-1990
in the form of perjury; and (4) under the Supreme Court’s
decision in Cunningham v. California, the district court
impermissibly found facts that enhanced his sentence.
We address each issue in turn.
A. Competency Hearing
Savage on appeal contends that the district court should
have ordered sua sponte a competency hearing. Under
18 U.S.C. § 4241(a), a court may on its own motion order
a hearing on the competency of the defendant “if there is
reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he
is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his
defense.” Where the issue of the defendant’s mental
competency to stand trial is raised for the first time on
appeal, in order to justify a retrospective competency
hearing, the appellant must present facts “sufficient to
positively, unequivocally and clearly generate a real,
substantial and legitimate doubt as to [his] mental compe-
tence.” United States v. Teague, 956 F.2d 1427, 1431-32
(7th Cir. 1992) (citing United States v. Collins, 949 F.2d
921, 927 (7th Cir. 1991)).
Savage argues that the district court had “reasonable
cause” to doubt his competence. During Savage’s case,
Dr. Rubin testified that Savage suffered from post-trau-
matic stress disorder and dependent personality disorder.
The symptoms of these disorders, according to Dr. Rubin,
typically include irrational outbursts of anger and an
inability to take responsibility for one’s actions. Savage
argues that Dr. Rubin’s evaluation should have put the
district court on notice of Savage’s incompetency.
Additionally, during Savage’s testimony, counsel for
Savage informed the district court that during the two
No. 06-1990 5
days prior to his testimony, Savage had neglected to take
his prescribed medication, Prozac. The district court
immediately ordered a recess so that Savage could have
lunch and take his medication. During the recess, the
court spoke with a paramedic in the Metropolitan Cor-
rectional Center, who advised the court that they would
be delivering the medication. The court then spoke with
Savage, and observed:
[W]e’re going to make sure that he gets his medication
and that he’ll be able to participate during the pro-
ceedings this afternoon. If he is not, if I detect that he
is unable to appreciate the nature of the proceedings
that are going on here today, we’ll recess for today
and adjourn and begin again tomorrow. But at this
point when I spoke to him a few minutes ago he
seemed cogent and aware.
Tr. at 164. Counsel for Savage then agreed with the
district court that “he certainly seemed to be aware of
what was going on . . . about him.” Id.
Savage then resumed his testimony. On several occa-
sions, the court ordered Savage to confine his answers
to the questions asked of him. Savage repeatedly ignored
this order, attempting at multiple points to introduce
inadmissible evidence. Near the end of the cross-examina-
tion, Savage became openly frustrated with the prosecu-
tor’s questions. On the stand, Savage accused the gov-
ernment of being angry at him for refusing to testify
against Valdez, and further accused the government, and
apparently the district court, of wanting Savage to be
killed for his testimony. The court promptly ordered a
recess and adjourned until the following day.
Our review of the record shows that the district court
properly found that it had no reasonable cause to doubt
Savage’s competence to stand trial. Regarding the
two mental disorders identified by Dr. Rubin, Savage fails
6 No. 06-1990
to establish why either disorder would necessitate a
finding of incompetence. The mere fact that a criminal
defendant has a personality disorder does not prevent
the defendant from appreciating the proceedings or
assisting in his defense. Teague, 956 F.2d at 1432 (finding
that the defendant “cited no authority and thus failed to
support his view that his alleged mental problems were
of such a nature as to require the holding of a competency
hearing”). The symptoms of the specific disorders identi-
fied by Dr. Rubin suggest that Savage may be prone to
verbal outbursts or antisocial behavior, but they do not
suggest a “real, substantial and legitimate doubt as to
[his] mental competence.” Additionally, we believe that
the district court properly addressed Savage’s failure to
medicate before testifying. The district court observed
Savage and determined that the defendant’s choice to
testify unmedicated did not render him incompetent, and
we defer to the district court’s observations and judgment.
Finally, Savage’s outbursts at trial were clearly disrup-
tive. But rather than suggest that he was unable to
understand the nature and consequences of the proceed-
ings, Savage’s conduct manifested an intent to intro-
duce inadmissible evidence, his reluctance to answer
questions on cross-examination, and his frustration with
the prosecutor and the progress of his trial.
Ultimately, Savage has not offered enough evidence to
suggest that his mental problems were of such a nature
that they prevented him from understanding the proceed-
ings against him and interfered with his ability to consult
with his attorney. Savage’s attorney did not ask for a
competency hearing and at one point agreed with the
district court that Savage “certainly seemed to be aware
of what was going on . . . about him.” Significant weight
is given to counsel’s representations concerning his
client’s competence and counsel’s failure to raise the
competency issue. See, e.g., United States v. Downs, 123
No. 06-1990 7
F.3d 637, 641 (7th Cir 1997); United States v. Morgano, 39
F.3d 1358, 1374 (7th Cir. 1994). The district court is
always in the best position to determine the need for a
competency hearing. Downs, 123 F.3d at 642. The dis-
trict court observed Savage’s conduct and appropriately
gauged whether reasonable cause existed to doubt
Savage’s competency. Accordingly, we find no error in the
district court’s decision not to order a mental examination.
B. Evidence of Post-July 29, 2003 Threats
Savage also challenges the district court’s exclusion of
letters that Valdez sent to Savage after July 29, 2003, the
date of the drug purchase. Savage argues that the letters,
which included threats of physical violence, would lend
credibility to Savage’s version of events and support his
defense of coercion.
The district court found that post-conduct threats would
be irrelevant for Savage’s coercion defense, because they
would have no bearing on Savage’s state of mind on
July 29, 2003. The court further held that the evidence
would only be offered for the inadmissible purpose of
showing Valdez’s propensity for violent behavior.1 The
1
In the course of the deliberations on this matter, the district
court inadvertently referred to Valdez as Savage:
I’ve ruled . . . that any post July 29th, 2003, statements are
not relevant insofar as they could have had any bearing on
Mr. Savage’s state of mind. I’m talking about statements by
Mr. Savage or people associated with Mr. Savage. If it’s
being offered to show that Mr. Savage was somehow a per-
son of violent behavior. I think there’s evidence of that
already and his propensity in that regard. I’m not going to
let further evidence after the occurrence be admitted before
the jury.
(continued...)
8 No. 06-1990
court also noted that evidence of Valdez’s violent char-
acter had already been introduced, and that additional
evidence would be confusing to the jury. Later, the district
court further discussed why it excluded the evidence:
Let me also say that I kept that out because I thought
that it would just raise unnecessary issues that would
confuse the jury, and, secondly, the probative value of
the threats from Valdez and his wife are more proba-
tive of threatening Mr. Savage to deter him from
persisting in prosecuting Mr. Valdez, which at one
point appeared to be the case, and really aren’t proba-
tive of any pre-crime threats towards—any pre-crime
coercion of Mr. Savage.
Tr. at 319-20.
We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Luster, 480 F.3d 551,
556 (7th Cir. 2007). Because we give great deference to
the trial judge’s evidentiary rulings, we will not reverse
unless the record contains no evidence upon which the
trial judge rationally could have based his decision. United
States v. Gajo, 290 F.3d 922, 926 (7th Cir. 2002).
Typically, federal prosecutors employ Rule 404(b) of the
Federal Rules of Evidence to introduce evidence of a
criminal defendant’s prior convictions or other miscon-
duct as proof of that defendant’s “motive, opportunity,
intent, preparation, plan, knowledge, or identity” with
regard to a different crime for which the defendant is
being prosecuted. United States v. Reed, 259 F.3d 631, 634
(7th Cir. 2001). However, “[e]vidence regarding other
1
(...continued)
Tr. at 234-35. It is clear from the context of the discussion that
the court was discussing Valdez’s propensity for violence, not
Savage’s.
No. 06-1990 9
crimes is admissible for defensive purposes if it tends,
alone or with other evidence, to negate the defendant’s
guilt of the crime charged against him.” Id. In determining
whether to allow a criminal defendant to admit such
evidence, known as “reverse 404(b) evidence,” a district
court must balance “the evidence’s probative value under
Rule 401 against considerations such as prejudice, undue
waste of time, and confusion of the issues under Rule 403.”
United States v. Seals, 419 F.3d 600, 606 (7th Cir. 2005).
The evidence Savage sought to introduce at his trial,
demonstrating that Valdez threatened Savage after
July 29, 2003, fits into the category of “reverse 404(b)”
evidence. First, we must determine whether the evidence
is probative—i.e., whether it makes it more likely than not
that Valdez coerced Savage into purchasing the drugs—
and, if so, whether its probative value is trumped by
Rule 403.
In analyzing the probative value of the proffered evi-
dence, the district court focused heavily on the fact that
the threats occurred after July 29, 2003. We note that
this fact does not ipso facto render the evidence inad-
missible under Rule 404(b). We have recognized that
Rule 404(b) does not restrict the evidence concerning other
acts to events which took place before the alleged crime.
See United States v. Anifowoshe, 307 F.3d 643, 646-47 (7th
Cir. 2002) (observing that “by its very terms, 404(b) does
not distinguish between ‘prior’ and ‘subsequent’ acts”);
United States v. Betts, 16 F.3d 748, 757 (7th Cir. 1994),
abrogated on other grounds by United States v. Mills, 122
F.3d 346 (7th Cir. 1997); 22 Charles A. Wright & Kenneth
W. Graham, Jr., Federal Practice and Procedure: Evidence
§ 5239 (1978 ed. & 2007 supp.). That said, the “chronologi-
cal relationship between the charged offense and the other
act” may play an important role in determining the
probative value of such evidence. Anifowoshe, 307 F.3d
at 647.
10 No. 06-1990
In this case, we agree with the district court’s underly-
ing conclusion that the probative value of post-conduct
threats is somewhat limited. The text of threatening
letters—two containing the word “REDRUM,” or “murder”
backwards, and a third with a threat to “come down there
right now and kid napp you and beat you for a weak
[sic]”—do not reference the drug deals that Savage argues
Valdez coerced him into doing. The threats occurred
well after the drug deal, which, though not a dispositive
factor, lessens the probative value of the letters. The
probability that a jury would view these letters as fur-
ther support of Savage’s coercion defense is slight.
The district court properly weighed this limited value
against other important considerations under Rule 403.
Because the threats were made at a time when Savage
was cooperating with the government against Valdez, the
jury may have confused the issue of whether Valdez
coerced Savage into ending his cooperation with the
government with the issue of whether Valdez coerced
Savage into dealing drugs. In addition, at the point in the
trial when Savage proffered the post-conduct threats,
substantial evidence of Valdez’s violent character had
already been introduced in Savage’s case in chief, as
well as the government’s. Any further evidence on this
point, especially considering its low probative value, seems
unnecessary. We find that the court properly exercised
its discretion in finding that concerns for confusion of
the issues and presentation of cumulative evidence
outweighed the limited probative value of the letters.
Even if the evidence involving Valdez’s other threats
should have been admitted, its exclusion was harmless in
light of the overwhelming evidence presented by the
government at trial. We will only reverse a defendant’s
conviction if the erroneous decision by the district court
to exclude evidence “had a substantial influence over the
jury and the result reached was inconsistent with sub-
No. 06-1990 11
stantial justice.” Seals, 419 F.3d at 607. In assessing the
harmlessness of the district court’s evidentiary ruling, we
consider the “overall strength of the prosecution’s case
against the defendant.” Id.
The government introduced Savage’s admission to
Special Agent Morris that he had purchased the powder
and crack cocaine with the intent to sell it. This ad-
mission was corroborated by Savage’s own testimony to the
grand jury.
In his defense, Savage testified that Valdez had forced
him to carry out the drug transaction with the threat of
physical violence on numerous occasions. However, his
testimony regarding the threats was contradicted by
Special Agent Brazao and Savage’s own expert, Dr. Rubin.
Other elements of Savage’s testimony, including his
denial that he knew that the drugs were crack and his
denial of his intent to sell the drugs, contradicted his
own grand jury testimony. In toto, the evidence against
Savage overcomes any doubt that the exclusion of
Valdez’s other threats led to a result “inconsistent with
substantial justice.”
Savage argues that the exclusion of the evidence de-
prived him of his right to present a complete defense. We
have held that the “[e]xclusion of evidence which is the
only or the primary evidence in support of a defense is
deemed to have had a substantial effect on the jury.” Seals,
419 F.3d at 608. This is not the case here. Savage testified
to the existence of the other threats, so the post-conduct
threats were not the only evidence in support of his
defense. Nor were the post-conduct threats, which were
both remote and vague in their meaning, the primary
evidence of coercion. Savage’s detailed description of the
threats on the morning of July 29, 2003 was the primary
evidence. The exclusion of Valdez’s subsequent threats
was not so fundamental to Savage’s defense that it had a
substantial effect on the jury.
12 No. 06-1990
C. Obstruction of Justice Enhancement
Savage’s third challenge involves the district court’s
decision to enhance his sentence by two levels for obstruc-
tion of justice. We review de novo the adequacy of the
district court’s obstruction of justice findings and any
underlying factual findings for clear error. United States
v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005).
A court may impose a two-level enhancement under
U.S.S.G. § 3C1.1 if “the defendant willfully obstructed
or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investi-
gation, prosecution, or sentencing of the instant offense
of conviction.” Perjury is the sort of conduct that may
warrant an obstruction of justice enhancement. See United
States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 122
L. Ed. 2d 445 (1993); see also U.S.S.G. § 3C1.1, cmt. n. 4.
Perjury, for enhancement purposes, is defined as giving
under oath false testimony concerning a material matter
with the willful intent to provide such testimony, rather
than as a result of confusion, mistake, or faulty memory.
Dunnigan, 507 U.S. at 94, 113 S. Ct. 1111 (relying on the
definition in the federal criminal perjury statute, 18 U.S.C.
§ 1621). In order to impose the obstruction enhancement,
the district court must make independent findings neces-
sary to establish all of three factual predicates for a
finding of perjury (false testimony, materiality, and willful
intent). Id. at 95, 113 S. Ct. 1111. It is preferable, though
not absolutely required, for the court to address each
element of the alleged perjury in a separate and clear
finding. Id. If the court fails to address each element
clearly, the enhancement will withstand scrutiny if
the court makes a finding that “encompasses all of the
factual predicates for the finding of perjury.” Id.; United
States v. Bass, 325 F.3d 847, 850 (7th Cir. 2003).
No. 06-1990 13
As a threshold matter, the district court did not specifi-
cally identify which of the Savage’s statements at trial
were, in fact, perjurious. We have remanded for
resentencing when the district court failed to identify
specific statements as perjury. United States v. McGiffen,
267 F.3d 581, 591 (7th Cir. 2001); United States v. Seward,
272 F.3d 831, 838-39 (7th Cir. 2001). At the sentencing
hearing, the government identified two statements as
perjury requiring an obstruction enhancement: first,
Savage’s testimony that on the morning of July 29, 2003,
Valdez threatened to shoot Savage if he did not carry out
the drug deal; and second, Savage’s testimony that he
told Dr. Rubin and government agents about this threat.
The government elicited testimony from Special Agent
Brazao and Dr. Rubin that Savage never mentioned
this threat during their discussions with Savage, and
Savage did not produce any witnesses to corroborate his
testimony. After hearing argument from Savage on the
enhancement, the district court found that the adjust-
ment was warranted:
[C]onsidering his testimony as it was presented on the
witness stand and considering his testimony against
the other evidence here in the presentence investiga-
tion report, it’s clear that Mr. Savage did not testify
truthfully. . . . He cannot avoid, it seems to me, an
adjustment of two levels upward because he has
obstructed or attempted to obstruct justice in this
case.
Sent. Tr. at 21. After this finding, Savage continued to
object to the application of the obstruction enhancement,
arguing that a report prepared by Dr. Rubin corroborated
Savage’s statements. In response, the district court made
the following observations:
I heard what Mr. Savage just said regarding the
doctor’s statement, but [the government’s] points are
14 No. 06-1990
well-taken as well. Not even the doctor fully corrobo-
rates or effectively corroborates Mr. Savage’s in-court
testimony. I also note that despite ample opportunity
to discuss the facts of this case with the government
prior—while he was cooperating, this issue was never
raised in any regard at all. Now, he says that he told
an agent, but that’s not supported anywhere in this
material by the agent’s notes or otherwise. So, unfortu-
nately, the testimony is—his statement is not corrobo-
rated, and I’m going to persist in my assessment of his
in-court testimony regarding obstruction.
Sent. Tr. at 22-23.
The record is not entirely clear as to whether the district
court found that Savage’s testimony that Valdez threat-
ened him on July 29, 2003 was a lie, or that Savage’s
testimony that he later told the government agents
and Dr. Rubin about Valdez’s threat was a lie, or both.
While the government points out that the Assistant
United States Attorney at the sentencing hearing argued
that all of these statements were perjury, our inquiry
focuses on the district court’s findings, and the district
court did not adopt the government’s position in its
entirety. However, the context of the colloquy between
counsel for Savage, the government, and the district court
strongly suggests that the court examined both sets of
statements—i.e., concerning the existence of the July 29,
2003 threat and the later reporting of that threat—
in making its enhancement determinations.
Accepting that the court reviewed these statements, the
court still did not make separate and clear findings as
to each element of perjury. The court clearly found por-
tions of Savage’s testimony to be false, but it failed to
discuss the issues of materiality or specific intent to
obstruct justice. Under Dunnigan, an obstruction en-
hancement that fails to make separate findings for each
No. 06-1990 15
element of perjury will still succeed if the court makes
a finding that “encompasses” each element. 507 U.S. at
95, 113 S. Ct. 1111; United States v. Sheikh, 367 F.3d 683,
687 (7th Cir. 2004). Arguably, the court’s finding that
Savage “obstructed or attempted to obstruct justice in this
case” encompasses the willful element. The testimony
clearly related to the central issue at the trial—whether
Savage carried out the drug deal as a response to Valdez’s
threats—and therefore was material.
The district court’s findings on this matter were regret-
tably slim. However, any error is harmless. The record
is clear that Savage willfully lied about material
matters when he stated that Savage threatened him on
July 29, 2003 and when he stated that he told Dr. Rubin
and the government agents about the threats. These
statements were contradicted by government witnesses
and, more damningly, by Savage’s own expert. The lack of
more precise findings on the enhancement does not
warrant remand for resentencing. See United States v.
Saunders, 359 F.3d 874, 878-79 (7th Cir. 2004).
D. Resentencing Based on Cunningham
Savage finally contends, in an argument raised for the
first time in his reply brief, that Cunnningham v. Califor-
nia, ___ U.S. ___, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007),
precludes district judges from finding facts that may
enhance sentences. Regardless of whether Savage for-
feited this argument, we rejected this same argument
earlier this year. United States v. Roti, 484 F.3d 934, 937
(7th. Cir. 2007). Savage acknowledges Roti in his brief,
but nonetheless asks us to overturn it. We decline to do so.
16 No. 06-1990
III. Conclusion
For the foregoing reasons, we AFFIRM Savage’s convic-
tion and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-17-07