United States v. Durham, Marcus C. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1281
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS C. DURHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 96 CR-40051--William D. Stiehl, Judge.
Argued December 9, 1999--Decided May 1, 2000
Before POSNER, Chief Judge, and COFFEY and MANION,
Circuit Judges.
COFFEY, Circuit Judge. On January 22, 1997, a
federal grand jury returned a one-count
superceding indictment charging Defendant-
Appellant Marcus Durham ("Durham") with
conspiring to distribute and possess with intent
to distribute cocaine and cocaine base, in
violation of 21 U.S.C. sec.sec. 841(a)(1),
846./1 After two mistrials resulting from hung
juries, the third trial commenced on October 21,
1997, and two days later, the jury returned a
verdict of guilty. On January 30, 1998, the court
sentenced the defendant to 420 months’
imprisonment, a supervised release term of 10
years and a $3,500 fine. Five days later, Durham
appealed, claiming that: (1) the prosecutor made
improper remarks during closing argument, thereby
depriving him of a fair trial; and (2) the court
improperly calculated the amount of drugs
attributable to him. We AFFIRM.
I. BACKGROUND
The Cairo, Illinois Police Department, the
Federal Public Housing Drug Task Force and the
Federal Bureau of Investigation commenced an
investigation in 1994 that disclosed that Durham
was a distributor of kilogram quantities of
cocaine and cocaine base (commonly referred to as
"crack") in southern Illinois. As a crack dealer,
the defendant had numerous customers, including
one Ronnie Bridges ("Bridges") and another person
known as Bradley Bigham ("Bigham"), both of whom
later testified against Durham at his third
trial.
The investigation revealed that Durham employed
Michael Bowers ("Bowers"), a child who was but 15
years old at the time he commenced working for
Durham in 1993. In addition to providing Bowers
with cocaine and crack for sale, Durham took him
along on at least two trips to purchase crack in
Charleston, Missouri. At the defendant’s
direction, Bowers hid the purchased crack in his
underwear because, as Durham explained to him, "I
was younger and the police wouldn’t really mess
with me." During the second return drug
transportation trip from Charleston, the
defendant directed Bowers to carry a "brick like
package," which Durham told him contained one
kilogram of crack cocaine. When they arrived in
Illinois from Charleston, Durham paid Bowers $100
for carrying the crack.
On January 22, 1997, a federal grand jury
issued a one-count superceding indictment
charging Durham with conspiring to distribute and
possess with intent to distribute cocaine and
cocaine base./2 On October 21, 1997, a third
trial commenced, with the government presenting
some thirty witnesses consisting of a number of
the defendant’s fellow drug dealers, employees,
former customers, and law enforcement officers,
each testifying that they were either engaged in,
observed or had been told about crack
transactions that directly involved Durham.
When the defense presented its case, the
defendant’s brother, Darcy Durham, testified that
the defendant’s unexplained wealth was
accumulated by "doing odd jobs" and that the
expensive jewelry he wore "could have been
gifts." Darcy Durham also testified that he "had
no idea" who might have given his brother such
gifts and that the most he had ever known his
brother to earn from his jobs was a "couple
hundred dollars."
In his closing argument, the prosecutor
described Darcy Durham as a "dope dealer" himself
and also a "liar." The prosecutor also described
the defendant, who refused to testify, as a
"slick little dope dealer" who "uses kids and
exploits them to peddle poison," and asked the
jury to use some "good midwestern common sense"
in analyzing the evidence. None of these comments
drew an objection from the defendant either
during trial or on post-trial motion.
Nonetheless, at the close of trial, the
district court instructed the jury that
[c]losing arguments are for the purpose of
discussing the evidence. Opening statements,
closing arguments and other statements of counsel
should be disregarded to the extent they are not
supported by the evidence.
On October 23, 1997, the jury returned a guilty
verdict. Prior to sentencing, Durham objected to
the Presentence Investigation Report ("PSR"),
which attributed 1.65 kilograms of crack to him.
Of the 1.65 kilograms of crack attributed to
Durham as relevant conduct, the PSR attributed
1000 grams (one kilogram) to the defendant based
on statements Bowers made to the police and his
testimony during trial. On January 30, 1998,
Judge Stiehl conducted a sentencing hearing, and
while adopting the PSR’s recommendations in their
entirety, the judge concluded that Durham was
responsible for even more crack than set forth in
the PSR--the court attributed in excess of 2.5
kilograms to his relevant conduct./3 The court
sentenced Durham to 420 months’ imprisonment, a
supervised release term of 10 years and a fine of
$3,500. The defendant appealed.
II. ISSUES
On appeal, the defendant claims that: (1) the
prosecutor made improper remarks during closing
argument, thereby depriving him of a fair trial;
and (2) the trial court improperly calculated the
amount of drugs attributable to him.
III. DISCUSSION
A. The Prosecutor’s Closing Argument
Durham claims that the government’s comments
made during closing argument denied him a fair
trial. We employ a two-part test for assessing
the propriety of remarks made during closing
argument: first, we determine whether the
comments, examined in isolation, were improper.
See United States v. Morgan, 113 F.3d 85, 89 (7th
Cir. 1997). If we determine that when considered
in isolation the remarks were indeed improper, we
then examine the remarks in the light of the
entire record and determine if the defendant was
deprived of a fair trial as a result. See United
States v. Granados, 142 F.3d 1016, 1021 (7th Cir.
1998). Because the defendant failed to object to
the prosecutor’s closing argument statements
during trial, we review these allegedly improper
remarks for plain error. See United States v.
Laurenzana, 113 F.3d 689, 695 (7th Cir. 1997).
Under this standard, our discretion to correct
plain error should be employed only "in those
circumstances in which a miscarriage of justice
would otherwise result, namely, in those cases in
which the error has affected the outcome of the
district court proceedings." See id. (citing
United States v. Olano, 507 U.S. 725, 734-36
(1993)).
The defendant essentially complains that during
closing argument, the prosecutor referred to him
as a "slick little dope dealer" who "uses kids
and exploits them to peddle poison." The
defendant also challenges the prosecutor’s
reference to his brother, Darcy Durham, as a
"dope dealer" himself and a "liar," and the
prosecutor’s plea to the jury’s "good midwestern
common sense" in analyzing the evidence. From our
review of the record, we are convinced that when
looked at in isolation, the prosecutor’s comments
were not improper.
From our review of the record and the
applicable caselaw, we are convinced that there
is nothing objectionable in the prosecutor’s
description of the defendant as a "slick little
dope dealer" who "uses kids and exploits them to
peddle poison" because the remarks were supported
by the evidence. We have held that so long as the
evidence supports the comments, prosecutors may
speak harshly about the actions and conduct of
the accused. See United States v. Aldaco, 201
F.3d 979, 989 (7th Cir. 2000); United States v.
Cook, 432 F.2d 1093, 1096 (7th Cir. 1970).
Indeed, this Court has affirmed similar strongly
worded descriptions of defendants made by
prosecutors. See, e.g., United States v. Spivey,
859 F.2d 461, 466 (7th Cir. 1998) (finding that
the prosecutor’s characterization of the
defendants as "con men" was not improper); United
States v. Fike, 538 F.2d 750, 758-59 (7th Cir.
1976) (finding that the prosecutor’s statement
that the defendant "has committed a dastardly
crime, he should be punished" was not improper).
See also United States v. Catalfo, 64 F.3d 1070,
1080 (7th Cir, 1995) (holding that a prosecutor’s
description of the defendant as a liar was not
improper). It remains the longstanding principle
of this Circuit that:
The district attorney is quite as free to comment
legitimately and speak fully, although harshly,
upon the action and conduct of the accused, if
the evidence supports his comments, as is the
accused’s counsel to comment upon the nature of
the evidence and the character of the witnesses
which the government produces and which is
favorable to him.
See Cook, 432 F.2d at 1106-07.
During trial, substantial evidence was presented
that established Durham’s drug activity and his
employment of the child Bowers, who started
selling drugs for him in 1993 at the young age of
15 years. Obviously, "the prosecutor’s statements
were simply a permissible comment upon what the
evidence showed," see United States v. Auerbach,
913 F.2d 407, 418 (7th Cir. 1990) (holding that
it was not improper for the prosecutor to comment
that a defendant "is guilty" and "has done what
he is charged with"), and, hence, were not
improper.
Likewise, with regard to the reference to Darcy
Durham as a "dope dealer" himself and a "liar,"
the prosecutor was commenting on the credibility
of one of the defendant’s witnesses. The record
reflects several material inconsistencies in
Darcy Durham’s testimony; for example, on cross
examination, Darcy Durham was unable to account
for the defendant’s wealth. In fact, when asked
about his brother’s expensive jewelry, he
testified that they "could have been gifts," but
the most he had ever known his brother to earn
from his jobs was only a "couple hundred
dollars." Commenting on his own wealth, Darcy
Durham testified that he made a living by selling
cars, but could neither identify nor remember
what type of cars he sold other than a single
Ford Mustang. Also, Thomas Spiller, a Cairo,
Illinois police officer in 1995, testified that
he had observed on one occasion Darcy Durham and
the defendant with what appeared to be a large
quantity of crack cocaine and money in plain view
inside Darcy Durham’s residence. Each of these
facts and inconsistencies affected Darcy Durham’s
credibility as a witness and were properly
brought out by the prosecutor during his
summation. As we have previously held, a
prosecutor may remark on a witness’ credibility
"as long as the comment reflects reasonable
inferences from the evidence adduced at trial."
United States v. Morgan, 113 F.3d 85, 89 (7th
Cir. 1997) (quoting United States v. Goodapple,
958 F.2d 1402, 1409-10 (7th Cir. 1992)); see also
United States v. Catalfo, 64 F.3d 1070, 1080 (7th
Cir. 1995) (stating that where a defendant’s
version of the facts conflicts with that of the
government witnesses’, a prosecutor may argue
that the jury should believe the government
witness and not the defendant). Because of his
inconsistent trial testimony and evidence of his
drug activity, we conclude that the prosecutor’s
comment describing Darcy Durham as a "liar" and
a "dope dealer" himself were reasonably inferable
from the evidence presented at trial and thus,
were not improper.
Lastly, the prosecution’s plea for the jury to
use its "good midwestern common sense," hardly
constitutes misconduct because it could have
easily benefitted the defendant, a fellow
"midwesterner" himself, as much as the
prosecution. Morever, it is well established that
"juries are allowed to draw upon their own
experience in life as well as their common sense
in reaching their verdict. . . . While common
sense is no substitute for evidence, . . . common
sense should be used to evaluate what reasonably
may be inferred from circumstantial evidence."
United States v. Magana, 118 F.3d 1173, 1201 (7th
Cir. 1997) (citation omitted). Accordingly, we
conclude that the prosecutor’s appeal to the
jury’s "good midwestern common sense" also was
not improper.
But even if we were to assume only for the
purposes of this review that all these comments
were improper, we would still conclude that the
allegedly improper comments did not deprive the
defendant of a fair trial because "it is not
enough that the prosecutors’ remarks were
undesirable or even universally condemned. The
relevant question is whether the prosecutors’
comments so infected the trial with unfairness as
to make the resulting conviction a denial of due
process." Darden v. Wainwright, 477 U.S. 168, 181
(1986) (emphasis added). To determine whether the
remarks denied the defendant a fair trial, we
consider five factors: (1) the nature and
seriousness of the prosecutorial misconduct; (2)
whether the conduct of the defense counsel
invited the prosecutor’s remarks; (3) whether the
trial court’s instructions to the jury were
adequate; (4) whether the defense was able to
counter the improper arguments through rebuttal;
and (5) the weight of the evidence against the
defendant. See Grandos, 142 F.3d at 1022.
Here, the prosecutor’s characterization of
Durham’s brother, the chief defense witness, as
a "dope dealer" himself and a "liar" appears to
have been in response to the defense counsel’s
similar attack against the government’s
witnesses: "Members of the jury, these people are
thieves, burglars, drug dealers, crack addicts,
and now suddenly they are going to be truthful
people. Suddenly now they gain character and they
are going to be honest. Come on, they are lying
to get a deal."
It is also evident from the record that the
court’s instructions adequately informed the jury
that:
Closing arguments are for the purpose of
discussing the evidence. Opening statements,
closing arguments and other statements of counsel
should be disregarded to the extent they are not
supported by the evidence. . . . You may draw
such reasonable inferences as you believe to be
justified from proven facts. . . . You should not
be influenced by sympathy, prejudice, fear or
public opinion.
(emphasis added). Cf. United States v. Stillo, 57
F.3d 553, 557 (7th Cir. 1995) (holding that a
criminal defendant "must rebut the dual
presumption that a jury will (1) capably sort
through the evidence and (2) follow limiting
instructions from the court").
Further, the comments describing the defendant
as a drug dealer and the plea to the jury’s
"midwestern common sense" were initially made
during the prosecution’s opening summation, thus
affording the defendant’s counsel an opportunity
to respond. Finally, the overwhelming weight of
the evidence against the defendant more than
adequately supports his conviction. Some thirty
witnesses, consisting of former employees and
customers, as well as law enforcement agents,
testified with specificity and detail about
Durham’s dealings in cocaine and crack.
But as previously discussed, because Durham
failed to object to the prosecutor’s comments at
the time they were made, we also rule that he has
waived the issue on appeal and, thus, any review
comes under the plain error standard.
Accordingly, Durham must establish "not only that
the remarks denied him a fair trial, but also
that the outcome of the proceedings would have
been different absent the remarks." See Granados,
142 F.3d at 1022. We are convinced that the
prosecutor’s comments describing the defendant as
a "slick little dope dealer" who "uses kids and
exploits them to peddle poison," as well at the
comments attacking Darcy Durham’s credibility and
appealing to the jury’s "midwestern common sense"
had little to do with the outcome of the
proceedings. Thus, in light of the overwhelming
and extensive evidence that implicated him in the
offense charged, Durham has failed to persuade us
"not only that the remarks denied him a fair
trial, but also that the outcome of the
proceedings would have been different absent the
remarks." Id. We therefore decline to vacate his
conviction on account of these remarks.
B. Durham’s Challenge to the Court’s Drug Quantity
Calculations
The defendant also claims that the court
improperly calculated the amount of crack
attributable to him. We review a district court’s
determination of the amount of narcotics
attributable to a defendant for sentencing
purposes under the clear error standard. See
United States v. Johnson, 200 F.3d 529, 537 (7th
Cir. 2000). "’The factual findings of the
district court will not be overturned unless they
are clearly erroneous . . . . Thus, we will
reverse the district court’s conclusion as to
quantity of cocaine attributable to [a]
defendant[ ] only if we have a definite and firm
conviction that the district court made a clear
error in sentencing.’" United States v. Taylor,
72 F.3d 533, 542 (7th Cir. 1995) (quoting United
States v. Mumford, 25 F.3d 461, 465 (7th Cir.
1994)).
The reasons for this deferential standard of
review are well-established. Congress has
mandated this standard of review in sentencing
and stated that "the court of appeals shall give
due regard to the opportunity of the district
court to judge the credibility of the witnesses,
and shall accept the findings of fact of the
district court unless they are clearly erroneous
and shall give due deference to the district
court’s application of the guidelines to the
facts." 18 U.S.C. sec. 3742(e) (emphasis added).
As a matter of sound jurisprudence, we do not
second-guess the sentencing judge because he or
she has had "the best ’opportunity to observe the
verbal and non-verbal behavior of the witnesses
focusing on the subject’s reactions and responses
to the interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture
and body movements,’ as well as confused or
nervous speech patterns in contrast with merely
looking at the cold pages of an appellate
record."
United States v. Garcia, 66 F.3d 851, 856 (7th
Cir. 1995) (emphasis added).
Thus, because "the district court, as the trier
of fact, not only has the authority but is in the
best position to determine the amount of
narcotics attributable to the [defendant]," the
clearly erroneous standard applies to estimates
of drug quantities made for sentencing purposes.
Id. (alteration in original).
Based on the PSR and the trial testimony, the
sentencing judge attributed "in excess of 2 and
a half kilograms of crack cocaine" to Durham’s
relevant conduct, well above the amount required
for the maximum base offense level of 38.
U.S.S.G. sec. 2D1.1(c)(1) (requiring only "1.5 KG
or more of Cocaine Base" for the maximum base
offense level of 38). Although Durham challenges
the testimony of four of the government’s
witnesses, his most significant challenge is to
Bowers’ testimony which was used by the
sentencing judge to attribute 2,040 grams (2.04
kilograms) of crack to Durham. Therefore, because
Bowers’ testimony represents the bulk of the
total amount of crack cocaine attributed to the
defendant, we initially address the defendant’s
challenge to this testimony./4
At the conclusion of the sentencing hearing,
the judge found that:
Michael Bowers, when he testified at trial,
stated that he started dealing in crack for the
defendant in the summer of 1993 and that he got
fronted by the defendant 5 grams two or three
times a week. He didn’t sell during the summer of
1994, nor in the colder time of 1995, so a
conservative analysis of that would show that he
sold 5 grams twice a week, or 10 grams a week,
over a period of, if we only count two years, 52
weeks times two years makes it 1,040 grams. One
time he went with the defendant to Charleston to
pick up the crack and another time he went--the
defendant said that the package he received from
the source in Charleston was one brick or one
kilogram of crack cocaine, so the total that Mr.
Bowers was involved with [Durham] was 2,040
grams.
(emphasis added). Durham argues that the court
failed to make an explicit finding as to how it
arrived at its conclusion that he fronted "5
grams [of crack] two or three times a week." We
have held that "estimates of drug quantity are
acceptable if they are based on evidence
possessing a sufficient indicia of reliability
and not nebulous eyeballing." United States v.
Pigee, 197 F.3d 879, 889 (7th Cir. 1999)
(quotations omitted). In fact, it is also
permissible for a court to take witness’
estimates of the amount of drugs they purchased
and multiply that by the minimum quantity sold on
each occasion, as well as extrapolate drug
quantities from the amount of money used to
purchase the drugs. See United States v. Howard,
80 F.3d 1194, 1204 (7th Cir. 1996). At trial,
Bowers testified that he received $500 worth of
crack (made up of approximately 25 $20 crack
rocks) twice a week from the defendant.
Incorporating the PSR’s conclusion that "[w]ithin
this conspiracy, a $20 rock consisted of
approximately 0.2 gram," it seems evident that
the court’s calculations accurately reflected the
evidence presented at trial./5 Thus, we conclude
that the sentencing judge’s calculations are
supported by the record and based on evidence
that revealed a sufficient "indicia of
reliability." See id.
Durham also argues that Bowers’ testimony in
relation to the weight of the brick of crack that
Bowers transported from Missouri to Illinois is
unreliable because he provided contradictory
statements to federal drug agents. The defendant
points out that during the third trial, Bowers
described the crack that the defendant gave him
to bring back to Illinois as a "brick like
package," but was unable to testify as to its
weight. Durham claims that this testimony
contradicts the statement Bowers gave to federal
drug agents on April 16, 1997, when he stated
that "Durham told [him] the package contained one
kilogram of crack cocaine."
These statements, however, are not
contradictory; Bowers’ description of the crack
as a "brick like package," but not knowing how
much it weighed, is entirely consistent with
having been told by Durham that the package
contained one kilogram of crack. Also, it is
important to keep in mind that many of these
witnesses, including Bowers, were former
associates and friends of the defendant and their
testimony, although truthful, can at best be
described as reluctant. Nonetheless, it is clear
from the record that Bowers’ statements to
federal drug agents and during trial,
consistently identified the crack that he
transported for Durham from Charleston, Missouri
to Illinois as "a brick like package," and
nothing in his trial testimony contradicts his
statement to federal drug agents that he was told
by Durham that the package contained one kilogram
of crack. Further, the defendant is essentially
questioning Bowers’ credibility, which is plainly
a waste of our time in light of our strong
preference to defer to the trier of fact on such
matters. See United States v. Mancillas, 183 F.3d
682, 701 n.22 (7th Cir. 1999) ("We do not second-
guess the [sentencing] judge’s credibility
determinations. . . .") (alteration in original);
Garcia, 66 F.3d at 856. As we have previously
stated, "arguments which simply urge a
reassessment of a district court’s credibility
determinations are wasted on an appellate court."
United States v. House, 110 F.3d 1281, 1286 (7th
Cir. 1997).
Thus, "[i]n the absence of actual evidence
controverting the information in the PSR" and the
evidence presented at trial, we conclude that the
sentencing judge’s finding that based on Bowers’
testimony to federal drug agents and at trial,
the defendant’s relevant conduct involved 2.04
kilograms of crack, was not clearly erroneous.
See United States v. Taylor, 72 F.3d 533, 547
(7th Cir. 1995). Because this amount of crack is
well in excess of the 1.5 kilograms required
under the sentencing guidelines for the maximum
base offense level of 38, which Durham was
assessed, we need not address his remaining
challenges to the court’s drug calculations.
IV. CONCLUSION
We AFFIRM the defendant’s conviction and
sentence.
/1 The indictment charged Durham with engaging in
this conspiracy from February 17, 1993,
continuing until on or about April 30, 1996.
/2 The government’s initial attempts to prosecute
Durham were unsuccessful--at the conclusion of
the trials, the juries were deadlocked and the
judge declared mistrials.
/3 The judge increased the quantity of crack
attributed to the defendant from what was
recommended in the PSR, and held that Durham was
responsible for in excess of 2.5 kilograms of
crack (as opposed to the 1.65 kilograms
recommended in the PSR). The court’s finding,
however, did not alter the defendant’s resulting
offense level because under U.S.S.G. sec.
2D1.1(c)(1), "1.5 KG or more of Cocaine Base"
attributed to a defendant results in a base
offense level of 38.
/4 Durham also attacks the testimony of three other
witnesses: Bridges, Bigham and Cameron Shaw
("Shaw"). The court attributed 255.15 grams of
crack to the defendant based on Bridges’
testimony, 56.7 grams of crack based on Bigham’s
testimony and 113.4 grams of crack based on
Shaw’s testimony, for a total of 425.25 grams.
Bowers’ testimony, however, was used by the court
to attribute 2.04 kilograms of crack to the
defendant. Thus, even if we were to accept as
true, which we emphatically do not, the
defendant’s challenges to the drug quantity
calculations based on the testimony of Bridges,
Bigham, and Shaw, it could not possibly affect
his sentence because the total amount of crack
attributable to Durham would still be well in
excess of the 1.5 kilograms required for the
maximum base offense level.
/5 It appears that the defendant bases his argument
that the court was inconsistent in its drug
calculations, in part, on what appears to be a
single typo in the sentencing hearing transcript.
(Tr. 1/30/98, at I-23) (stating incorrectly that
a $20 rock equals "another .12 grams"). From our
review of the record and each of the judge’s
calculations, we conclude that the judge
consistently applied the PSR’s conclusion that "a
$20 rock consisted of approximately 0.2 gram" in
calculating the quantity of drugs attributable to
the defendant’s relevant conduct.