United States v. Eberhart, Ivan , 467 F.3d 659 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2366
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IVAN EBERHART,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 946—James B. Zagel, Judge.
____________
ARGUED SEPTEMBER 6, 2006—DECIDED NOVEMBER 1, 2006
____________
Before FLAUM, Chief Judge, and BAUER, and POSNER,
Circuit Judges.
FLAUM, Chief Judge. On April 3, 2002, a jury con-
victed Ivan Eberhart of conspiracy to possess cocaine
with intent to distribute in violation of 21 U.S.C. § 846
and acquitted him of distributing cocaine in violation of
21 U.S.C. § 841(a)(1). Eberhart appeals his conviction,
arguing that his trial was tainted by prosecutorial mis-
conduct, improperly admitted evidence, and improper
jury instructions. He also claims that the district court
erroneously denied his motion for acquittal. For the follow-
ing reasons, we affirm Eberhart’s conviction and sentence.
2 No. 05-2366
I. Background
On December 16, 1998, DEA Agents Daniel Foley and
Robert Glynn arrested Charles Bolden after he sold two
kilograms of cocaine to a government informant. Once
arrested, Bolden agreed to help apprehend his supply
source, who he identified as “E” and who the agents later
identified as Eberhart.
At the agents’ direction, Bolden made several calls to
Eberhart to arrange for the purchase of two additional
kilograms of cocaine. While Bolden made the calls, Agent
Foley listened to Bolden’s half of the conversations, and the
agents made tape-recordings of both sides of the conversa-
tions. During one of the calls, Bolden said he needed “two
more,” and Eberhart said “okay.” They also agreed to meet
the next day outside a Kentucky Fried Chicken near the
intersection of 83rd Street and Martin Luther King Drive in
Chicago.
Before the meeting, the agents instructed Bolden to
discuss a previous cocaine transaction, to indicate a willing-
ness to pay Eberhart for a previous cocaine-related debt,
and to give them a signal once the conversation occurred so
that they could arrest Eberhart. Agent Glynn placed a
transmitting device and tape recorder underneath Bolden’s
clothing to allow the agents to listen to the conversation as
it occurred and preserve the conversation for later use.
When Eberhart arrived at the previously agreed-upon
location, he expressed (a well-founded) concern that Bolden
was wearing a wire:
EBERHART: I’m talking about what you was talking
about when you was down there at the office down
at DEA. Uh.
....
BOLDEN: All mother fuckers shady, you think I’m
wired or something.
No. 05-2366 3
EBERHART: I’m just wondering, I’m just
wondering . . . . You’d be concerned too (Unintelligible)
I’m just curious.
Govt. Transcript 8A. Once Bolden allayed Eberhart’s fears
that he was acting as a government informant, the men
discussed a $40,000 debt that Bolden owed Eberhart.
Eberhart expressed his general lack of concern about the
debt, and the meeting ended. Bolden exited the car and
signaled the agents, who arrested Eberhart. They dis-
covered no drugs in Eberhart’s possession.
The agents read Eberhart his Miranda rights, and he
confessed that he had distributed between twenty and forty
kilograms of cocaine per month, that Bolden was one of his
customers, and that he had sold Bolden two kilograms of
cocaine on December 15, 1998. Eberhart also agreed to help
the agents arrest his supply source, identified only as
“Tommy.” Eberhart gave the agents a physical description
of Tommy, his cellular and pager phone numbers, and the
location of a “stash house” out of which Tommy operated.
Eberhart explained that he received his drugs from Tommy
on consignment and that he would pick up his cocaine at
the stash house at 6:00 a.m. or 6:00 p.m.
At the agents’ direction, Eberhart then called Tommy
to arrange a purchase. Soon after Eberhart made that
phone call, however, he ceased cooperating, and the agents
never located Tommy. Nevertheless, they followed up on the
information that Eberhart had provided, and a consensual
search of the stash house uncovered two high-speed money
counters, a firearm, and a scale.
At trial, the government introduced evidence of the
investigation as described above. They played recordings of
Eberhart and Bolden’s conversations on the phone and in
the car and provided the jury with transcripts of these
conversations prepared by Agent Foley. The defense offered
evidence that on December 15, 1998, the date that Eberhart
4 No. 05-2366
allegedly sold two kilograms of cocaine to Bolden, Eberhart
was at home—from 2:00 p.m. until midnight— dealing with
the aftermath of a residential burglary at his home. Several
witnesses testified that Eberhart was at his residence
during this time fixing a broken window, speaking with
police, and installing burglar bars. This testimony was
problematic for the prosecution, because Bolden claimed
that Eberhart had sold him drugs on the afternoon of
December 15, 1998.
At trial, Eberhart made evidentiary objections and
requested a number of jury instructions. He made a general
objection, which the court overruled, that the government
transcripts of the tape recordings were inaccurate. He also
objected to the agents’ testimony concerning the recorded
conversations between Bolden and Eberhart, claiming they
were hearsay. The court overruled the objection, concluding
that the government was offering the statements, not for
the truth of the matter asserted, but to explain the course
of their investigation.
Eberhart also requested a missing witness instruction,
which would have allowed the jury to draw a negative
inference based on the government’s decision not to call
Bolden. The government objected, arguing that Bolden had
pleaded guilty without a plea agreement and that the
witness was not particularly within its power to produce.
The court refused to give the instruction. Eberhart also
sought a Sears instruction, which would have informed the
jury that it could not consider Bolden a co-conspirator based
on actions he took after December 16, 1998, the day he
began cooperating with the government. The court refused
this request as well, stating, “I’m satisfied [if] the govern-
ment makes it clear in its argument that it does not regard
Bolden as a conspirator after the time of the arrest.” R. 478.
The prosecutor responded, “Yes, correct.” Id. Defense
counsel then stated, “If they make that plain to the jury, I
think that goes a long way.” Id. During closing argument,
No. 05-2366 5
the government did not tell the jury that it should not
consider Bolden a conspirator after the time of his arrest.
On April 3, 2002, the jury convicted Eberhart of conspir-
ing to distribute or possess more than five kilograms
of cocaine but acquitted him of distributing cocaine. On May
15, 2002, Eberhart filed a motion for a new trial, arguing,
among other things, that one of the transcripts of the tape
recordings, Transcript 7A, wrongly indicated that Eberhart
requested to meet Bolden “face to face.” In a supplemental
brief filed on October 30, 2002, Eberhart also argued that
the district court erred by allowing Agent Foley to testify
about his conversations with Bolden and by not instructing
the jury that a buyer-seller relationship cannot form the
basis of a conspiracy conviction.
In a post-trial hearing on his motion for a new trial,
Eberhart offered evidence that Bolden was willing to
cooperate with the government at the time of Eberhart’s
trial. Bolden’s attorney, Jonathon Minkus, testified that
Bolden’s sentencing was delayed for over a year and a half
“in part” because of his desire to earn a lower sentence
in exchange for cooperation. Minkus claimed that the
government was reluctant to use Bolden, however, because
of repeated and irreconcilable conflicts in his proffers.
Eberhart also offered expert testimony that he never
requested to meet Bolden “face to face” as indicated in
Transcript 7A.
On March 21, 2003, the district court denied Eberhart’s
motion for judgment of acquittal but granted his motion
for a new trial. It reasoned that “the possibility that
[Transcript 7A] is not supported by the tape, the absence of
a buyer-seller instruction[,] and . . . the testimony that
Bolden gave the name ‘E’ as his supplier all together
persuade me that the interests of justice require a new
trial.” United States v. Eberhart, No. 98 CR 946, 2003
WL 1340047, at *3 (N.D. Ill. March 19, 2003). The court
6 No. 05-2366
stated that “none of these concerns standing alone or in
pairing would cause me to grant a new trial[, but] the
combination of all three causes me to grant the motion.” Id.
On appeal, we reversed the district court’s decision,
concluding that the district court did not err by admit-
ting Transcript 7A and that we had no jurisdiction to con-
sider arguments that Eberhart had raised for the first
time in an untimely filed supplemental memorandum.
United States v. Eberhart, 388 F.3d 1043, 1049-50 (7th Cir.
2004) (Eberhart I ). The Supreme Court reversed our
decision, holding that Federal Rule of Criminal Procedure
33(a) is not a jurisdictional limitation. Eberhart v. United
States, ___ U.S. ___, 126 S. Ct. 403, 407 (2005). On remand,
we considered the arguments in Eberhart’s supplemental
memorandum but found, once again, that the district court
erred by granting a new trial. United States v. Eberhart,
434 F.3d 935, 940 (7th Cir. 2006) (Eberhart II), cert. denied,
No. 06-5233, ___ S. Ct. ___, 2006 WL 1981739 (Oct. 2, 2006).
The district court then sentenced Eberhart to 135 months
in prison. At the sentencing hearing, the defense argued
that the jury’s conclusion that the conspiracy involved more
than five kilograms of cocaine was contrary to the weight of
the evidence and should be set aside. The district court
rejected the argument.
No. 05-2366 7
II. Discussion
In this appeal, Eberhart makes three new arguments.
He contends that the district court erred by refusing
a missing witness instruction and a Sears instruction;
the government did not properly authenticate its tape
recordings before offering them into evidence; and the
government did not offer sufficient evidence to support
a conviction.
A. Missing Witness Instruction
Eberhart first argues that the government violated his
due process rights by misrepresenting to the district
court that Bolden was not cooperating with the government.
Had the government been more forthright, Eberhart
contends, he would have been entitled to a missing wit-
ness instruction, which would have allowed the jury to
conclude that Bolden’s testimony would have been unfavor-
able to the prosecution. See Graves v. United States, 150
U.S. 118, 120-21 (1893).
This argument fails for two reasons. First, Eberhart has
not pointed out any misrepresentation made by the govern-
ment. We noted as much in our first two rulings. Eberhart
II, 434 F.3d at 939-40; Eberhart I, 388 F.3d at 1051. He
maintains that the government dishonestly stated that
Bolden was not cooperating, but in the portion of the trial
transcript he cites, the government only asserts that Bolden
received no benefit for his cooperation and that Bolden
“turned the other way at some time.” R. 471-72. The record
demonstrates that both of these statements were true.
Bolden never entered a cooperation agreement with the
government, and for a period of time in 1999, he stopped
cooperating altogether (though after he was convicted at
trial, he began making proffers again).
Second, even if the government had advised the district
court that Bolden was willing to testify for the government,
8 No. 05-2366
Eberhart would not have been entitled to a missing witness
instruction. To obtain that instruction, a defendant must
prove that “the absent witness was peculiarly within the
government’s power to produce” and that “the testimony
would have elucidated issues in the case and would not
merely have been cumulative.” See United States v. Brock,
417 F.3d 692, 699 (7th Cir. 2005). Eberhart has not estab-
lished, or even argued, that the government was in a better
position than he was to produce Bolden at trial. Indeed, at
oral argument Eberhart’s attorney acknowledged that he
could have called Bolden but chose not to do so. Under these
circumstances, the district court did not err by refusing to
give a missing witness instruction. See United States v.
Rollins, 862 F.2d 1282, 1298 (7th Cir. 1988) (holding that
the district court did not err in concluding that an incarcer-
ated government informant was not particularly within the
government’s power to produce); United States v. Torres,
845 F.2d 1165, 1169-70 (2d Cir. 1988).
Eberhart also argues, citing United States v. Kojayan,
8 F.3d 1315 (9th Cir. 1993), that by not disclosing Bolden’s
willingness to cooperate, the government violated his rights
under Brady v. Maryland, 373 U.S. 83 (1963). In Kojayan,
the government accused Kojayan of conspiracy to possess
heroin with intent to distribute. An undercover police officer
testified on behalf of the government and recited state-
ments made by one of Kojayan’s alleged co-conspirators
named Nourian. Before trial, Kojayan had attempted to
discover Nourian’s whereabouts and whether he had agreed
to cooperate with the government, but the government
refused to provide Kojayan with this information. It did
provide her with the name of Nourian’s attorney, but the
attorney only said that if called, Nourian would invoke his
Fifth Amendment privilege against self-incrimination.
During closing argument, Kojayan’s attorneys asked the
jury to infer that Nourian’s testimony would have undercut
the government’s case. In response, the government falsely
No. 05-2366 9
claimed that it was not capable of calling Nourian. In truth,
the government had a cooperation agreement with Nourian
but decided against calling him. The court held that the
government violated Brady by not disclosing the coopera-
tion agreement, which might have convinced the district
court to give the jury a missing witness instruction.
Kojayan, 8 F.3d at 1322.
In this case, unlike Kojayan, the government did not
make any misrepresentations to the jury or to the district
court and did not refuse to disclose the existence of a
cooperation agreement (indeed, none existed). In addition,
as discussed above, even if the government had disclosed
Bolden’s willingness to cooperate, Eberhart would not
have been entitled to a missing witness instruction because
he could have called Bolden himself. For these reasons,
Kojayan is distinguishable; no Brady violation occurred
here.
B. Sears Instruction
Eberhart next argues that the district court erred by
refusing a Sears instruction, which states that an agree-
ment with a government informant cannot constitute a
criminal conspiracy. See Sears v. United States, 343 F.2d
139 (5th Cir. 1965). The court reviews a district court’s
refusal to give a theory of defense instruction de novo.
United States v. Buchmeier, 255 F.3d 415, 426 (7th Cir.
2001).
[A] defendant is entitled to a jury instruction as to his
or her particular theory of defense provided: ‘(1) the
instruction represents an accurate statement of the law;
(2) the instruction reflects a theory that is supported by
the evidence; (3) the instruction reflects a theory which
is not already part of the charge; and (4) the failure to
include the instruction would deny the appellant a fair
trial.’
10 No. 05-2366
Id. (quoting United States v. Swanquist, 161 F.3d 1064,
1075 (7th Cir. 1998)).
The government argues that Eberhart was not entitled to
a Sears instruction because it was inconsistent with his
defense at trial. A jury instruction, however, does not
have to completely track the defense presented; it need only
represent “a theory that is supported by the evidence.”
Buchmeier, 255 F.3d at 426. Because the jury could have
inferred a continuing conspiracy between Bolden and
Eberhart based on the December 16 and 17, 1998 conversa-
tions, a Sears instruction was proper. See Duff v. United
States, 76 F.3d 122, 127 (7th Cir. 1996) (holding that a
Sears instruction was proper where the indictment was
worded in a manner that allowed the jury to believe that
the conspiracy with the confidential informant was enough
to convict the defendant and the confidential informant’s
drug transactions with the defendant played a prominent
role in the trial).
The error was harmless, however, because based on the
special verdict, the jury must have concluded that Eberhart
conspired to distribute cocaine before December 16, 1998.
The transaction that Bolden and Eberhart contemplated on
December 16 and 17 only involved two kilograms of cocaine,
but the special verdict stated that Eberhart conspired to
distribute five or more kilograms of cocaine. Consequently,
the jury necessarily found that Eberhart conspired to
distribute drugs sometime before December 16, and the
district court’s decision not to provide a Sears instruction
was not prejudicial.
It is possible, of course, that the decision not to give a
Sears instruction affected the jury’s drug quantity deter-
mination. For instance, the jury may have concluded
that Eberhart conspired to distribute three kilograms of
cocaine before December 16 and two kilograms afterwards.
That possible error has no bearing, however, on the validity
No. 05-2366 11
of the conspiracy conviction, which is the only concern we
have here. Ultimately, the drug quantity determination was
one for the district court to make at sentencing, and, as
discussed below, it did not err in concluding that the
conspiracy involved more than five kilograms of cocaine.
C. Authentication of Tapes
Eberhart next argues that the district court erred by
admitting Government Exhibits 6, 7, 8, and 10, a number of
tape recorded conversations between Eberhart and Bolden
and between Eberhart and Tommy. Eberhart contends that
the government did not properly authenticate the tapes and
that the tapes contain inadmissible hearsay. Eberhart
concedes that he made no objection to Exhibits 7 and 10 and
that, as a result, we should review their admission for plain
error. He does maintain, however, that he properly objected
to the improper authentication of Exhibits 6 and 8. The
government disagrees.
At trial, Eberhart explained his objection to Exhibit 6,
a tape recording of four December 16, 1998 phone calls
between Bolden and Eberhart, as follows, “The objection
to the tape is based on the fact that there was no ade-
quate foundation in terms of showing that the tape-record-
ing equipment had been tested and functioning properly.”
R. 63. With regard to Exhibit 8, a recording of Eberhart and
Bolden’s conversation outside Kentucky Fried Chicken,
Eberhart made a general foundation objection. Neither of
these objections sufficiently advised the district court and
the government that Eberhart was contesting the authenti-
cation of the tapes. A “foundation” objection is “simply a
loose term for preliminary questions designed to establish
that evidence is admissible” and is not usually specific
enough to preserve an alleged error on appeal. See A.I.
Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637-38 (7th
Cir. 2001); United States v. Barker, 27 F.3d 1287, 1292 (7th
12 No. 05-2366
Cir. 1994). Moreover, an objection concerning whether the
recording equipment was functioning properly would not
have alerted the district court to Eberhart’s current objec-
tion that the tapes were not true and accurate recordings of
the December 16 and 17, 1998 conversations between
Bolden and Eberhart. See United States v. Westmoreland,
312 F.3d 302, 311 (7th Cir. 2002). Consequently, we review
the admission of Government Exhibits 6, 7, 8, and 10 for
plain error, which requires Eberhart to demonstrate an
error that was obvious, affected his substantial rights, and
seriously affected the fairness, integrity, or public reputa-
tion of the judicial proceedings. United States v. Montgom-
ery, 390 F.3d 1013, 1017 (7th Cir. 2004).
Before a tape recording may be properly admitted at trial,
Federal Rule of Evidence 901(a) requires the government to
offer “evidence sufficient to support a finding that the [tape]
in question is what its proponent claims.” We have said that
this requires the government to show by clear and convinc-
ing evidence that the proffered tape is a true, accurate, and
authentic recording of the conversation between the parties.
Westmoreland, 312 F.3d at 311. It may do so by establishing
the chain of custody or by offering testimony of an eyewit-
ness that the recording accurately reflects the conversation
he or she witnessed. See United States v. Carrasco, 887 F.2d
794, 802 (7th Cir. 1989). District courts are given wide
latitude to determine whether the government has met its
burden, as is generally the case with evidentiary rulings.
Id.
The district court did not err by admitting Government
Exhibits 6 and 7. Agent Foley testified that he listened to
Bolden’s half of the December 16 and 17 conversations as
they occurred and that the recordings accurately por-
trayed what Bolden said during those conversations. He
also testified that he recognized the second voice on the
recordings as Eberhart’s. Though Agent Foley did not listen
to Eberhart’s half of the conversations as they occurred, his
No. 05-2366 13
testimony sufficiently established the tapes’ authenticity by
clear and convincing evidence. Just as a court may admit a
tape recording despite a gap in the chain of custody, see
United States v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998),
a court may admit a recording where a witness testifies
that he only heard half of the recorded conversation. What
the witness did not hear goes to the evidentiary weight of
the recording, not to its admissibility. Id.; United States v.
Brown, 136 F.3d 1176, 1182 (7th Cir. 1998) (“Merely raising
the possibility (however hypothetical) of tampering is not
sufficient to render evidence inadmissible.”).
The same reasoning requires us to conclude that the
district court did not err by admitting Government Ex-
hibit 10, which was a tape recording of a number of tele-
phone conversations between Eberhart and a person the
government claimed was his supplier. Agent Foley testified
that he listened to Eberhart’s half of the conversations as
they occurred and that the recordings accurately portrayed
what Eberhart said during those conversations. This
testimony sufficiently supported the district court’s admis-
sion of this exhibit.
The admission of Exhibit 8, however, is more problematic.
The government offered scant evidence that the tape played
at trial was the one that recorded Bolden and Eberhart’s
conversation outside the Kentucky Fried Chicken. Because
of an equipment malfunction, the agents only heard “a very
short” portion of the conversation as it occurred, and none
of the agents testified about the tape’s chain of custody. The
only evidence concerning the tape’s authenticity was Agent
Glynn’s testimony that he equipped Bolden with a recording
device before the conversation with Eberhart, that he
removed the recording device after the conversation, and
that the voices on the tape were Bolden’s and Eberhart’s.
Though we question whether this is clear and convinc-
ing evidence that Government Exhibit 8 truly and accu-
14 No. 05-2366
rately recorded the conversation that occurred between
Eberhart and Bolden, the plain error doctrine requires
Eberhart to show that the error was obvious and that
it affected his substantial rights. See United States v.
Olano, 507 U.S. 725, 734 (1993); United States v. McGee, 60
F.3d 1266, 1272 (7th Cir. 1995) (“The error must be clear
under current law.”). He has not satisfied either require-
ment. Indeed, he has not cited (and we have not found) any
decision in which we have held that a tape recording was
not properly authenticated at trial. In addition, our previ-
ous rulings indicate that district courts have broad discre-
tion in determining whether tape recordings have been
authenticated. See United States v. Welch, 945 F.2d 1378,
1383 (7th Cir. 1991). Consequently, the error was not
obvious.
Nor has Eberhart established that the admission of
Government Exhibit 8 affected the outcome of the proceed-
ings. See Olano, 507 U.S. at 734. Even without the contents
of this recording, the government had strong evidence that
Eberhart conspired to possess cocaine. It offered the phone
calls between Bolden and Eberhart, Eberhart’s presence at
the meeting with Bolden outside Kentucky Fried Chicken,
Eberhart’s confession, phone calls between Tommy and
Eberhart, and tools of drug-dealing found in the garage
where Eberhart said that Tommy stored his drugs. Given
this evidence, the admission of Government Exhibit 8 was
not plain error.
Eberhart also argues that the statements on the tapes
were inadmissible hearsay. The Court rejects the argument.
Eberhart’s statements were admissions, which the district
court properly admitted under Federal Rule of Evidence
801(d)(2). Bolden and Tommy’s statements were not
hearsay because they were admitted, not for the truth of the
matter asserted, but to place Eberhart’s statements in
context. See United States v. Gajo, 290 F.3d 922, 929-30
(7th Cir. 2002) (collecting cases).
No. 05-2366 15
D. Sufficiency of the Evidence
Eberhart’s last argument is that the government did not
offer sufficient evidence to support Eberhart’s conviction for
conspiracy or to support the district court’s sentencing
determination that the conspiracy involved more that five
kilograms of cocaine. To prove a conspiracy between
Eberhart and Bolden, the government needed to show more
than a series of spot sales, because buying and selling
drugs, without more, does not constitute a conspiracy. See
United States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002).
Rather, the government had to prove “an understand-
ing—explicit or implicit—among co-conspirators to work
together to commit the offense.” United States v. Medina,
430 F.3d 869, 881 (7th Cir. 2005). Factors indicating a drug
conspiracy include transactions that involve large quanti-
ties of drugs, prolonged cooperation between parties,
standardized dealings, and sales on credit. United States v.
Berry, 133 F.3d 1020, 1023 (7th Cir. 1998).
In this case, the government presented ample evidence
that Eberhart dealt in large quantities of drugs, bought and
sold drugs on credit, and cooperated with Bolden over a
significant period of time. First and foremost, Eberhart
confessed to dealing forty kilograms of cocaine per month
for a period of one year and to receiving drugs from Tommy
on credit. Though Eberhart disputes the reliability of his
confession, it was corroborated—at least in part—by the
money counting machine, gun, and scales found at the stash
house where Eberhart said that Tommy stored his drugs. In
any event, the reliability of the confession was a determina-
tion for the jury to make. Additionally, Eberhart’s taped
conversations suggested that he provided Bolden with
$40,000 worth of drugs on credit, and phone records
established that Eberhart had called Bolden 196 times in
the six months prior to his arrest. This evidence amply
supported Eberhart’s conviction for conspiracy to distribute
or possess cocaine. It also supported the district court’s
16 No. 05-2366
conclusion that Eberhart was responsible for distributing
five or more kilograms of cocaine.1
III. Conclusion
For the reasons stated above, we AFFIRM the judgment of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
1
Eberhart makes three additional arguments which he con-
cedes we previously rejected. Def. Reply at 6. We decline to revisit
those issues.
USCA-02-C-0072—11-1-06