United States v. Scott Lewis , 641 F.3d 773 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3954, 09-3961 & 10-1204
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S COTT L EWIS, V ERNON W ILLIAMS, and
L AVOYCE B ILLINGSLEY,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cr-00007—Virginia M. Kendall, Judge.
A RGUED D ECEMBER 8, 2010—D ECIDED A PRIL 6, 2011
Before F LAUM and E VANS, Circuit Judges, and
M C C USKEY, District Judge.Œ
E VANS, Circuit Judge. Scott Lewis, Vernon Williams,
and Lavoyce Billingsley were convicted of conspiracy
to possess cocaine with intent to distribute in violation of
21 U.S.C. § 846, and carrying and possessing a firearm
Œ
The Honorable Michael P. McCuskey, United States District
Court for the Central District of Illinois, sitting by designation.
2 Nos. 09-3954, 09-3961 & 10-1204
during and in relation to a drug trafficking offense in
violation of 18 U.S.C. § 924(c). Billingsley was also con-
victed of being a felon in possession of a firearm in vio-
lation of 18 U.S.C. § 922(g). Lewis and Williams were
tried together, while Billingsley was tried separately.
All three now appeal claiming that the evidence was
insufficient to support their convictions under § 924(c).
Lewis and Billingsley also claim insufficient evidence
for their § 846 convictions. Lewis and Billingsley further
appeal various evidentiary rulings, and Lewis and Wil-
liams appeal the imposition of the mandatory consecu-
tive sentence under § 924(c).
In what’s fast becoming a rather shopworn scenario
in this court, Lewis, Williams, and Billingsley, like a host
of (apparently) unrelated defendants before them, were
convicted of conspiring to distribute cocaine that didn’t
exist—cocaine they planned to liberate from a fictional
stash house guarded by members of an imaginary
Mexican cartel. The sting that ensnared the three defen-
dants here was orchestrated by Bureau of Alcohol, Tobacco
and Firearms (“ATF”) Agent David Gomez in his under-
cover role as “Loquito.” We have seen versions of this
sting, which appears a bit tawdry, several times. See
United States v. Blitch, 622 F.3d 658, 661 (7th Cir. 2010);
United States v. Corson, 579 F.3d 804, 806-09 (7th Cir.
2009); United States v. Lewis,1 350 F. App’x 74 (7th Cir.
2009) (nonprecedential order). We use the word “tawdry”
1
The “Lewis” in this case (Demarlon, along with two compa-
triots, Joaquin Tankey and James King) is, as far as we know,
not related to the Scott Lewis in our case.
Nos. 09-3954, 09-3961 & 10-1204 3
because the tired sting operation seems to be directed as
unsophisticated, and perhaps desperate, defendants who
easily snap at the bait put out for them by Agent Gomez.
In our case, the sting was originated after Gomez’s
confidential informant, Rojo, reported information in
December, 2006 concerning an individual known as
“Silk,” who turned out to be Lewis. Under the direction of
the ATF, Rojo placed a recorded call to Lewis to arrange
an introductory meeting with Gomez. The following
day, Rojo, Gomez, and Lewis met (in a recorded meeting)
and Gomez spun Lewis a cover story, namely that he
was a disgruntled drug courier working for a Mexican
cartel, and that once a month he transports cocaine for
the organization. He explained that the day before he
is to transport the cocaine, he gets a call telling him to
be ready, and the next day he gets a call giving him
the location of a secret stash house. He then goes to the
guarded stash house, where on any given day he sees
between 15 and 20 kilograms of cocaine being prepared.
Gomez asked Lewis if he was ready to help knock over
the stash house, and Lewis, who unfortunately did not
have the benefit of reading our yet-to-be-issued opinions
in Corson, Blitch, and Lewis, snapped at the bait. He said
he had a crew of three guys ready to go, as well as
“some pistols.” Gomez, Rojo, and Lewis arranged to
meet with the rest of Lewis’ crew the following week.
On December 18, 2006, Gomez, Rojo, Lewis, Williams,
and an unknown individual identified only as “B” 2 met
in a recorded (audio and visual) meeting in Westmont,
2
“B” was not Billingsley.
4 Nos. 09-3954, 09-3961 & 10-1204
Illinois. Lewis explained that there was one more
member of the crew, but that he couldn’t make it to the
meeting. Lewis, Williams, and “B” then went on to
explain the details of their plan, which was to rush the
stash house just as Gomez was leaving, yelling “Freeze,
Police!” to surprise the occupants, who they expected to
be armed with automatic weapons. They’d then strip
the occupants naked, tie them up, steal the drugs and
guns, and later sell the drugs. They also discussed
various sources for obtaining guns to use in the robbery.
Over the next few weeks, Lewis and “Loquito” a/k/a
Gomez participated in multiple recorded phone con-
versations, during which Lewis reiterated that he and
his gang had guns and were ready to go. This culminated
in a call on January 3, 2007, from Gomez to Lewis,
telling him to have the crew ready to go the next day.
January 4, 2007 was go day. It was also, and interestingly,
the day the recordings died. Gomez called Lewis in
an unrecorded call and asked that Lewis and his
associates meet him in Westmont so they would all be
together when the cartel called with the location of the
stash house. Lewis replied that the associate who was
bringing the guns had been arrested and that he
arranged for another person with a gun to fill in.
Lewis, Williams, and Billingsley subsequently met
Gomez in the arranged parking lot. Lewis and Williams
got out of their car and into Gomez’s vehicle, which was
outfitted with only one recording unit (although, in
keeping with ATF policy, Gomez usually used two de-
vices). Unfortunately, this recording device supposedly
Nos. 09-3954, 09-3961 & 10-1204 5
malfunctioned, so the meeting in the car was not re-
corded. However, Gomez testified that he asked Lewis
who the third guy (who turned out to be Billingsley) was,
and Lewis explained it was his associate with the gun.
Lewis then went back to the other car and spoke to
Billingsley, who got out of the car, retrieved something
from the trunk, tucked it into his waistband, and got
into Gomez’s car.
Once Billingsley was in his car, Gomez explained that
they were going to steal about 20 kilograms of cocaine
from a stash house. Billingsley confirmed that Lewis
had told him about the plan, and he was ready to go.
Gomez asked to see the gun, and Billingsley took it
from his waistband and showed it to everyone in the
car. Gomez then explained that he was going to take the
three of them to the storage facility where they were to
leave his share of the cocaine after the robbery (Gomez,
according to the plan, was to be tied up as if he were one
of the “victims”). Lewis, Williams, and Rojo then rode
with Gomez to the storage facility, while Billingsley
followed in his car.
At the storage facility, Lewis, Williams, and Billingsley
were arrested by waiting law enforcement agents. The
arrest was videotaped. The tape shows Billingsley, imme-
diately prior to his arrest, throwing something under
his car. Agents later recovered a loaded Smith & Wesson
.40 caliber semi-automatic from under Billingsley’s car,
and two partially full boxes of .40 caliber ammunition
from the trunk. Agents also recovered one pair of black
leather gloves and a black doo-rag, or head covering,
6 Nos. 09-3954, 09-3961 & 10-1204
from Lewis, one black doo-rag from Billingsley, and two
pairs of plastic surgical gloves and a blue stocking-
cap from Williams.
Both Lewis and Billingsley made post-arrest state-
ments after being advised of their rights. Lewis admitted
that he believed there would be 15 to 20 kilograms of
cocaine in the stash house, that he told Gomez he had
arranged at least one gun for the robbery but that he
himself did not have a gun, and that he had a pair of
black leather gloves he planned to use in the robbery.
At Billingsley’s trial, ATF Special Agent Christopher
Bayless testified that, in his post-arrest statement,
Billingsley admitted that two days prior to the robbery
he had met with Lewis, who told him about the
planned drug robbery. Billingsley stated that Lewis
wanted him to act as the driver for the robbery, and that
Lewis thought they’d get 15 kilograms of cocaine.
Billingsley also said he later met with Lewis and a man
he knew only as “V” (presumably Vernon Williams) and
showed them both a gun.
Prior to trial, Lewis, Williams, and Billingsley all stipu-
lated that 20 kilograms of cocaine is a distribution
amount, not an amount for personal use. Billingsley
also stipulated that some time prior to January 4, 2007,
he had been convicted of a felony.
At trial, Lewis claimed entrapment. He claimed he
started using cocaine because Rojo hooked him on it. He
also said he eventually ran up a $1000 drug debt with
Rojo. He testified that Rojo made comments which he
took as a threat to himself or his family regarding pay-
ment of this debt, and it was only after this threat that
Nos. 09-3954, 09-3961 & 10-1204 7
he gave in to Rojo’s repeated requests that he meet
Gomez and participate in the robbery of a cartel stash
house. Lewis also acknowledged on cross-examination
that in the video-recorded meetings with Rojo and
Gomez, he did not appear to fear for his safety, he never
attempted to call law enforcement authorities, and he
never tried to move away. He said he was unable to
borrow $1000 from any friend or relative and agreed to
rob the stash house to satisfy this $1000 debt.
To rebut Lewis’ entrapment defense, the government
was allowed to introduce evidence of two prior convic-
tions during its case-in-chief, specifically a 1995 convic-
tion for possession of a firearm by a felon, and a 2000
conviction for theft (pled down from residential bur-
glary). However, the district judge declined to allow in
Lewis’ 1991 conviction for commercial burglary, stating
that it was too far removed in time and type to show a
pattern of significant criminal conduct.
Prior to Billingsley’s trial, Lewis had a recorded jail-
house conversation with his girlfriend, Rachel Roberts.
During the conversation, he explained to Roberts that
he wasn’t guilty because he’d been entrapped by ATF
agents, and that Billingsley was just “giving [him] a ride,
basically,” and had “no idea what was going on.” Al-
though Lewis testified at his own trial, when asked to
testify at Billingsley’s trial he invoked his Fifth Amend-
ment right to remain silent. Billingsley’s counsel moved
to have Lewis’ statement admitted as a hearsay state-
ment against penal interest under Federal Rule of
Evidence 804(b)(3). This motion was denied because the
8 Nos. 09-3954, 09-3961 & 10-1204
district judge felt the statement lacked corroborating
circumstances, rendering it trustworthy in light of the
fact that it conflicted with Lewis’ previous post-arrest
statement.
The judge also denied another of Billingsley’s hearsay
motions. Agent Bayless was called by the government to
testify as to Billingsley’s post-arrest statement. On cross-
examination, Billingsley attempted to ask Bayless about
whether he had mentioned certain people (supposed
original members of Lewis’ crew) in his statement.
Billingsley had not mentioned these people, and the
government objected to the questioning on hearsay
grounds. The judge upheld the objection over
Billingsley’s arguments that the statements were not
hearsay because they were not being offered for the
truth of the matter asserted.
Further, at both the Lewis/Williams and Billingsley
trials, much was made of the actions of Agent Gomez,
and the lack of recordings of the January 4 phone call
and meeting. Gomez claimed that the initial call wasn’t
recorded because he’d made it when he was out to
lunch, at a time when he didn’t have a recording device.
A bigger issue was the lack of recording of the pre-arrest
meeting in Gomez’s car during which Billingsley dis-
played the gun. This meeting was supposed to have
been recorded, but prior to trial the government claimed
that the recording device in the car had failed. The cir-
cumstances surrounding this failure were murky.
Generally, Gomez used two recorders; however, on
this occasion he was only equipped with one. He testified
Nos. 09-3954, 09-3961 & 10-1204 9
that this was because he believed another team of agents
needed the second recorder, although some evidence
was introduced to show that this belief was, at best,
mistaken. Gomez was unable to explain why the
recorder he did have failed, and the defendants were
unable to examine the recorder themselves because
Gomez explained he had sent it off to be repaired, but
couldn’t remember to whom he sent it for repairs, and
had no paperwork relating to the repairs that could be
used to track down its current location.
In fact, Gomez didn’t even know the recording device
had failed for two weeks, as it took him that long to
attempt to listen to the tape. During the two-week gap
in which Gomez assumed the recording had been suc-
cessful, he did not safeguard the tape by logging it into
storage as evidence. Instead, he kept it at his desk. After
realizing that the recorder had malfunctioned, Gomez
didn’t immediately tell anyone, including his co-case
agent and friend, Timothy Wilson, who sat at the next
desk, despite the fact that Wilson was due to testify in
front of the grand jury. Wilson subsequently testified
inaccurately before the grand jury that the January 4
meeting was recorded, as Gomez had not yet informed
anyone that the device had malfunctioned.
Finally, much was made at trial of inconsistencies
between Gomez’s testimony regarding the January 4
meeting in the car and observations regarding that
meeting made by other members of the team who
were surveilling the meeting. For example, Wilson testi-
fied that he had previously sworn affidavits, based on
10 Nos. 09-3954, 09-3961 & 10-1204
information he’d received from Gomez, that Lewis
did not exit Gomez’s car, re-enter Billingsley’s car, and
then re-enter Gomez’s car with Billingsley. This was
contrary to Gomez’s testimony.
Because of the questionable circumstances regarding
the lack of recording of this meeting—the only meeting
which put all three defendants and a government agent
in proximity with a gun—and because of Gomez’s
overall behavior and testimonial inconsistencies, Lewis
and Williams ask that we declare the evidence insuf-
ficient to support their convictions under § 924(c) as a
matter of law. We review sufficiency of the evidence
claims in the light most favorable to the government.
United States v. Gorman, 613 F.3d 711, 715 (7th Cir. 2010)
(citing United States v. Carrillo, 435 F.3d 767, 775 (7th Cir.
2006)). And we must uphold a jury’s decision if “any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United
States v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005).
Williams and Lewis argue that the evidence was so
thoroughly corrupted by Gomez’s behavior that it was
insufficient to prove them guilty beyond a reasonable.
In re Winship, 397 U.S. 358, 364 (1970). However, as we
mentioned, Gomez was the subject of thorough and
tough cross-examination, and much was made through-
out trial of his inconsistent and questionable testimony.
His testimony presented a classic question of credibility,
and it is well settled that credibility assessments are the
province of the jury. Given that the jury heard extensive
arguments regarding Gomez’s credibility, we decline to
Nos. 09-3954, 09-3961 & 10-1204 11
find Gomez unreliable as a matter of law and so overrule
jury findings on a matter well within the usual sphere
of juror discretion.
Further, the jury could have disbelieved Gomez’s
testimony as to events on January 4 and still have
found Lewis and Williams guilty of the § 924(c) count. To
support a conviction under § 924(c), the government
was required to prove that the defendant: (1) conspired
to possess a controlled substance with intent to distribute;
and (2) either knowingly possessed or carried a firearm
in furtherance of, or during and in relation to this con-
spiracy, or could reasonably foresee that one of his co-
conspirators would carry a firearm. United States v.
McLee, 436 F.3d 751, 758 (7th Cir. 2006). Here, the jury
could have discounted Gomez’s testimony regarding
January 4 and still have found that Williams and Lewis
could reasonably have foreseen that someone would
carry a gun, given the multiple recorded conversations
in which the two discussed plans for a violent robbery
of the stash house and ways to procure weapons for
the robbery. Accordingly, the evidence was sufficient to
convict both Williams and Lewis under § 924(c).
Lewis further argues that the evidence was insufficient
to convict him under either § 846 or § 924(c) because
the government failed to prove beyond a reasonable
doubt that he was neither entrapped nor coerced as a
matter of law. Where a defendant offers a defense of
entrapment, the government must prove either that it
did not induce the defendant to commit the crime, or
that the defendant had a predisposition to commit the
12 Nos. 09-3954, 09-3961 & 10-1204
crime. United States v. Akinsanya, 53 F.3d 852, 858 (7th
Cir. 1995). Some relevant factors for a jury considering
predisposition include: (1) the defendant’s character or
reputation; (2) whether the government suggested the
criminal activity; (3) whether profit was involved;
(4) whether reluctance was expressed which was over-
come by government persuasion; and (5) the nature of
the inducement or persuasion. United States v. Millet,
510 F.3d 668, 676 (7th Cir. 2007); United States v. Casanova,
970 F.2d 371, 375 (7th Cir. 1992). No single factor is
dispositive, and the central question is whether the de-
fendant showed reluctance to participate in the crime.
Millet, 510 F.3d at 676; United States v. Blassingame, 197
F.3d 271, 281 (7th Cir. 1999).
Here, Lewis claimed at trial that he only started doing
cocaine because of Rojo. He further testified that Rojo
asked him repeatedly to participate in a stash house
robbery but that he had declined. Lewis testified that he
only changed his mind and agreed to do the robbery after
Rojo threatened to “send his boys to violate me and
[Rojo] was going to beat me up,” supposedly because
Lewis owed Rojo a $1000 cocaine debt. Lewis’ testimony
was the only evidence that Rojo asked him more than
once to commit the robbery, that he owed Rojo a debt or
that Rojo threatened him. As Lewis acknowledged on
cross-examination, there was videotape of him looking
comfortable and unafraid in the presence of Rojo and
Gomez. There were recordings of him agreeing to par-
ticipate in, and enthusiastically planning, the robbery.
He never tried to go to the police in relation to Rojo’s
Nos. 09-3954, 09-3961 & 10-1204 13
threat. He never tried to move. He could not borrow $1000
from anyone he knew, but instead agreed to rob a stash
house guarded by armed drug cartel members to
satisfy this debt. Further, evidence was introduced of
Lewis’ prior crimes, and Lewis acknowledged that he
believed there to be a large amount of cocaine with a
high cash value in the target stash house. Overall, there
was enough evidence on which a jury could find the
government had proved Lewis was predisposed to
commit the robbery and therefore not entrapped, even
if it believed Lewis’ unsubstantiated testimony that
he was threatened by Rojo.
Lewis’ coercion claim fails on similar grounds. A defen-
dant presenting a defense of coercion must show that:
(1) he reasonably feared immediate death or serious
bodily harm unless he committed the offense; and (2) there
was no reasonable opportunity to refuse to commit the
offense and avoid the threatened injury. United States v.
Jocic, 207 F.3d 889, 892 (7th Cir. 2000). Lewis claimed that
he could not borrow money to pay the debt, that he
did not have enough money to move, and that he was
too frightened to contact the police. Even if the jury
credited his testimony on all of these points, there was
nothing in Rojo’s purported threat that suggested any
immediacy such that it became coercive. For all these
reasons, Lewis has failed to show that the evidence was
insufficient to overcome his defense of entrapment or
coercion.
Billingsley argues that there was insufficient evidence
to sustain his convictions under § 846 and § 924(a) on
14 Nos. 09-3954, 09-3961 & 10-1204
grounds relating to the distribution element of each
charge. As a new argument on appeal, he argues that
although he may have been part of a conspiracy, this
was just a conspiracy to rob a stash house for drugs,
and there was no evidence of his intent to distribute or
knowledge that his co-conspirators were intending to
distribute. Billingsley admits that he stipulated prior to
trial that 20 kilograms of cocaine was a distribution
amount. He also admits that he had been told there
were between 15 and 20 kilograms of cocaine in the stash
house. However, he points out that by special verdict
he was only convicted of possession with intent to dis-
tribute a measurable amount of cocaine less than 500
grams, rather than in excess of 5 kilograms as was origi-
nally charged. Further, he stated at oral argument that
even if he stipulated that 20 kilograms was a distribu-
tion amount, this does not mean that he actually
knew, prior to the robbery, that 15 to 20 kilograms was
a distribution amount.
Even were we to ignore Billingsley’s stipulation as to
distribution amount, there is still sufficient evidence
to support a conviction on the distribution element.
Billingsley knowingly agreed to rob a stash house
guarded by armed cartel members. There was no
evidence presented that he expected any money to be
present. He admitted that he expected to steal 15 to 20
kilograms of cocaine from the stash house. A jury could
reasonably believe that Billingsley, who had stipulated
to a felony background, was aware that such a large
amount of cocaine was optimal for distribution. A jury
Nos. 09-3954, 09-3961 & 10-1204 15
could equally reasonably believe that no sane person
would rob a stash house guarded by armed gang
members to score some recreational drugs for personal
use. For a jury to reach such a conclusion hardly
requires the impermissible piling of inference upon
inference, but rather is the sort of rational result from
circumstantial evidence we ask juries to determine
every day. United States v. Sullivan, 903 F.2d 1093, 1099 (7th
Cir. 1990). There was sufficient evidence to support
Billingsley’s convictions.
Having determined that there was sufficient evidence
for the convictions of Williams, Lewis, and Billingsley,
we must now turn to specific evidentiary arguments
made by Lewis and Billingsley. Lewis argued that
evidence of his prior convictions should not have been
admitted. Billingsley argues that Lewis’ jailhouse state-
ment regarding Billingsley’s involvement should have
been admitted, and that the hearsay objection relating to
his cross-examination of Bayless should not have been
sustained. We review these matters under an abuse
of discretion standard. United States v. Smith, 454 F.3d
707, 716 (7th Cir. 2006); United States v. Souffront, 338
F.3d 809, 825 (7th Cir. 2003).
Lewis argues that the district judge abused her discre-
tion by allowing the government to mention his 1995
and 2000 convictions during its case-in-chief. Under Fed.
R. Evid. 404(b), evidence of a defendant’s prior bad acts
is not admissible “to prove the character of a person
in order to show action in conformity therewith.” How-
ever, when a defendant employs an entrapment de-
16 Nos. 09-3954, 09-3961 & 10-1204
fense, evidence of prior bad acts is admissible to prove
predisposition “because in such a case the defendant’s
predisposition to commit the charged crime is legitimately
at issue.” United States v. Swiatek, 819 F.2d 721, 728 (7th
Cir. 1987). To be admissible however, this evidence
must show an act that is similar enough and close
enough in time to be relevant to the matter at issue, and
its probative value must not be substantially out-
weighed by the danger of unfair prejudice. Id. at 727-28.
In admitting the convictions, the district judge
explained that they showed “a pattern of behavior of
someone who has an intent, first, to use a firearm unlaw-
fully, and, secondly, to enter into a residence and
commit theft.” In its case-in-chief the government intro-
duced merely the titles, dates and dispositions of Lewis’
prior allowable convictions. Although Lewis argues
that his 2000 theft conviction was far removed from his
current conviction because it was for theft, not burglary,
and because his current accomplices were not involved,
the judge recognized that the charge underlying the
theft plea was residential burglary, and so the conviction
and the facts surrounding it could in fact show a pattern.
Lewis’ 1995 conviction was admitted into evidence
as “possession of a weapon by a felon,” and Lewis
argues now that the title of this conviction should have
been sanitized to avoid unfair prejudice. Lewis was a
felon in 1995 as the result of a conviction in 1991. At
Lewis’ request, the judge excluded this 1991 conviction
from the government’s case-in-chief because it was too
far removed in time and circumstance. Lewis argues
Nos. 09-3954, 09-3961 & 10-1204 17
that because the jury did not know what his prior
felony conviction was for, it might assume some-
thing worse or more related to his current crime. The
law in this circuit is well settled that for purposes of
impeachment by prior conviction, it is appropriate to
reveal the title, date, and disposition of the offense. See,
e.g., Smith, 454 F.3d at 716; United States v. White, 222
F.3d 363, 370 (7th Cir. 2000); United States v. Smith, 131
F.3d 685, 687 (7th Cir. 1997). Given this, we find that it
was within the discretion of the district judge to allow
the titles, dates, and dispositions of Lewis’ 1995 and
2000 convictions into evidence.
Similarly we find that, although we might have
ruled differently, the district judge did not abuse her
discretion by denying Billingsley’s request to receive in
evidence Lewis’ statement to his girlfriend, Ms. Roberts.
Billingsley sought to have this statement admitted under
Fed. R. Evid. 804(b)(3), which permits out-of-court state-
ments made by an unavailable witness that are against
the declarant’s penal interest, provided corroborating
circumstances clearly suggest that the hearsay statement
is trustworthy. United States v. Garcia, 897 F.2d 1413,
1420 (7th Cir. 1990). In denying Billingsley’s motion, the
district judge stated,
The Court assumes that Lewis and Roberts are unavail-
able to testify. Additionally, because the defense
has not provided the statements to the Court for
review, the Court also assumes that Lewis makes
statements against his penal interest. To corroborate
the truthfulness of the statement, Billingsley points
18 Nos. 09-3954, 09-3961 & 10-1204
out that Lewis made the statement during an un-
prompted conversation with his girlfriend. Nonethe-
less, the statements contradict Lewis’ post-arrest
statement that Billingsley agreed to assist in the rob-
bery after Lewis told him about the details of the
planned robbery and that he expected to acquire
approximately fifteen kilograms of cocaine. Lewis’
statement in the recorded phone call contradicts
his post-arrest statement and lacks corroborating
circumstances that would render it trustworthy.
Billingsley argues that the fact that Lewis made these
statements in a private setting, to his girlfriend, and
about a man he barely knew, corroborates the veracity
of his statement. The government counters that the
fact that the statements were made in the larger context
of a conversation telling his girlfriend he’d been
entrapped actually undermines the veracity of his state-
ments to her, as he could be expected to curry favor
by pleading his innocence to her. Also, the government
contends that, technically, statements about Billingsley
not knowing the plan are not inherently against Lewis’
penal interest, especially when taken in the larger
context of a conversation about entrapment. Regardless,
and although we might have been inclined at a district
level to allow Lewis’ statement into evidence, given that
the statement directly contradicted Lewis’ post-arrest
statement, and the context in which the statement was
made, we don’t believe the district judge abused her
discretion by disallowing the introduction of this state-
ment.
Nos. 09-3954, 09-3961 & 10-1204 19
Next, we reach Billingsley’s argument regarding cross-
examination of Agent Bayless. Billingsley argues that by
sustaining the government’s hearsay objections during
his cross-examination of Bayless, the district judge
abused her discretion and violated the doctrine of com-
pleteness as codified in Fed. R. Evid. 106 and applied
to oral statements by Fed. R. Evid. 611(a). United States
v. Li, 55 F.3d 325, 329 (7th Cir. 1995). He also argues
that this ruling denied him his Sixth Amendment right
to confront and cross-examine witnesses against him, as
well as his Fifth Amendment right to be free from
penalty for refusing to take the stand in his own defense.
Agent Bayless was allowed to testify about Billingsley’s
post-arrest statement under Fed. R. Evid. 801(d)(2)(A),
which provides that a party’s own statement is not
hearsay if the statement is offered against the party.
However, on cross-examination, Billingsley attempted
to question Bayless as to whether or not Billingsley had
made certain statements not previously addressed by
Bayless in his testimony. Apparently, Billingsley’s
strategy was to show a lack of connection with Lewis’
gang, and one way he hoped to do so was by eliciting
statements from Bayless that he had never mentioned
certain members of the gang, such as “B” and “PJ,” in his
post-arrest statement. Billingsley’s own out-of-court
statements (or lack thereof) offered in support of himself
are hearsay and the government objected to this line of
questioning. Billingsley, unable to proffer a hearsay
exception under which these statements would be ad-
missible, suggested that they were not being admitted
for the truth of the matter asserted, and were therefore
20 Nos. 09-3954, 09-3961 & 10-1204
not hearsay. The judge upheld the government’s objec-
tion, and pointed out that if Billingsley wanted to
advance a defense theory about what he knew or didn’t
know at the time, he was certainly welcome to do so
by taking the stand.
On appeal, Billingsley argues that the doctrine of com-
pleteness, as codified in Fed. R. Evid. 106 and applied
to oral statements in Fed. R. Evid. 611(a) required the
judge to overrule the government’s objection. Under this
doctrine, a complete statement is required to be read
or heard when “it is necessary to (1) explain the
admitted portion, (2) place the admitted portion in
context, (3) avoid misleading the trier of fact, or
(4) insure a fair and impartial understanding.” United
States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987).
“The completeness doctrine does not, however, require
introduction of portions of a statement that are neither
explanatory of nor relevant to the admitted passages.”
United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). Here,
there was no suggestion during direct examination of
Agent Bayless that Billingsley had interaction with or
knowledge of “B” or “PJ.” Nonetheless, Billingsley
claimed that the testimony of Bayless regarding certain
things (such as a cell phone picture Gomez showed
Billingsley of guns), was misleading because the jury
might assume a connection to “B” or “PJ” and therefore
a greater involvement for Billingsley in the conspiracy.
We don’t believe Bayless’ testimony was confusing or
misleading, nor do we believe the testimony Billingsley
wished to pursue was explanatory of or relevant to
Nos. 09-3954, 09-3961 & 10-1204 21
the admitted testimony. Rather, what Billingsley wished
to have admitted was merely explanatory of his theory
of the case. Therefore, we disagree that the doctrine
of completeness should have been invoked here, and
believe that the district judge was well within her
discretion in finding that Billingsley’s proposed cross-
examination of Bayless was an attempt to bring imper-
missible hearsay before the jury.
As regards to his Sixth Amendment argument,
Billingsley was given the opportunity to cross-examine
and confront Bayless; he was just required to do so
within the rules of evidence. Billingsley has provided
no case law to support the theory that he must be
allowed to ask any and all questions he desires, regard-
less of the evidentiary or other trial rules.
As for his Fifth Amendment argument, Billingsley
was not penalized for declining to take the stand. He
was provided a full and fair trial, governed by legitimate
trial rules. Just because he would have had to take
the stand to present his theory of the defense does not
mean he was penalized for not doing so. What theory
of defense to adopt, and whether or not to take the
stand, are strategic choices made by defendants every
day. At issue here were not exculpatory statements that
implicated Billingsley’s Fifth Amendment rights. Marin,
669 F.2d at 85 n.6. Nor, as we explained, was this a situ-
ation where selective testimony by the witness dis-
torted the full picture or misled the jury such that
the adequacy of repair work necessary to correct a mis-
leading impression became a consideration. United States
22 Nos. 09-3954, 09-3961 & 10-1204
v. Walker, 652 F.2d 708, 713 (7th Cir. 1981). For these
reasons, Billingsley’s constitutional rights were not vio-
lated by requiring him to comply with hearsay rules
during Bayless’ cross-examination.
Finally, Lewis and Williams argue that the district
judge erred in imposing a mandatory consecutive
sentence under § 924(c). In support of this argument,
they cite cases from the Second and Sixth Circuits
holding that a district court may not impose an addi-
tional consecutive term of imprisonment for violating
§ 924(c) where a defendant is also subject to a longer
mandatory minimum sentence based on another count
of conviction. See United States v. Williams, 558 F.3d 166,
168 (2d Cir. 2009); United States v. Almany, 598 F.3d 238,
239 (6th Cir. 2010).
However, as Lewis and Williams acknowledge, we
have rejected the approach taken by the Second and
Sixth Circuits, and have instead joined the majority of
circuits in upholding the imposition of a mandatory
consecutive sentence under § 924(c), regardless of any
other mandatory minimum sentences imposed. United
States v. Easter, 553 F.3d 519, 525-26 (7th Cir. 2009). Lewis
and Williams offer no basis for revising this law, but
wish to preserve this argument for appeal. Therefore,
we find that the district judge did not err in imposing
mandatory consecutive sentences under § 924(c).
For the foregoing reasons, the judgments of the
district court are A FFIRMED.
4-6-11