U.S.A. v. Cooper

• Decision Date: 21 March 2001
• Docket Number: No. 00-1195,00-1195
• Citation: 243 F.3d 411
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Brian W. Cooper, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

243 F.3d 411 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Brian W. Cooper, Defendant-Appellant.

No. 00-1195

In the United States Court of Appeals For the Seventh Circuit

Argued December 7, 2000

Decided March 21, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 99 CR 62--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]

Before Bauer, Manion, and Rovner, Circuit Judges.

Bauer, Circuit Judge.

Brian W. Cooper appeals his conviction for knowingly and intentionally possessing a cocaine base with intent to distribute. He asks for a new trial, arguing that the district court committed plain error by allowing the government both to introduce testimony regarding the substance of an anonymous tip implicating Cooper and to make repeated reference to the substance of the tip throughout his trial. Because we find that Cooper has waived any error regarding the admissibility of the substance of the tip, we affirm.

BACKGROUND

On April 16, 1999, Officer Mark Jaeger of the Wausau, Wisconsin police department received a telephone call from Detective Beecher of the Vice Unit of the Milwaukee police department. Beecher informed Jaeger that he had just received an anonymous tip that there was a black man named Brian Cooper who was traveling to the Wausau area by Greyhound bus carrying several ounces of cocaine. According to Beecher, the tipster had provided several details, specifically that Cooper was due to arrive in Wausau on a Greyhound bus at 7:15 p.m., and that he would be wearing either a gray "FUBU style" jacket or black leather jacket with some type of writing on it and carrying a duffel bag.

Relying on this information, officers Jaeger and Peters drove to the Greyhound bus station and waited for Cooper's arrival. At approximately 7:15, they observed a black male wearing a black leather jacket with writing on it exit the bus, retrieve a blue duffel bag, and enter the passenger side door of a waiting Chevy Impala. They also saw the man place his duffel bag in the Impala before sitting in the passenger front seat. After the car drove off, Jaeger and several other officers followed it for approximately five to seven minutes until one of the officers eventually stopped it for a traffic violation. As the officer was writing up the traffic citation in his squad car, he watched Cooper and Jemeir Brown (the driver of the Impala) moving around inside the vehicle, and he noticed Cooper bend over at the waist towards the floor of the vehicle. The officers then ordered both men to get out of the car, and Jaeger retrieved his search dog to search for drugs in the car.

While sniffing the outside of the car, the dog "alerted" to the presence of drugs in the area around the passenger side door. Jaeger then allowed the dog inside the car, whereupon it alerted twice more, this time on the passenger side front seat and behind the driver's seat in the vicinity of Cooper's duffel bag. Jaeger then searched the areas of the car where the dog had alerted. Under the front passenger seat (where Cooper had been sitting), Jaeger found a pack of cigarettes with some plastic hanging out of the flap. When he opened the cigarette pack, Jaeger found that it contained a brownish, chunky substance which he believed to be some kind of cocaine. An on-site Cobalt thicyanate test confirmed that the substance contained cocaine. The officers found no other drugs either in Cooper's duffel bag or elsewhere in the car. Subsequent fingerprint tests on the cigarette pack and on the bag containing the drugs yielded no identifiable prints. Cooper was arrested and charged with knowingly and intentionally possessing, with intent to distribute, cocaine base, schedule II controlled substance in violation of 21 U.S.C. sec. 841(a)(1). Jemeir Brown was also arrested at the scene, but no drug-related charges were filed against him.

Before trial, Cooper's counsel filed a motion in limine to exclude any reference to the anonymous tip. The motion sought to bar the government from making "any direct or indirect mention whatsoever at trial before the jury of . . . [the facts] [t]hat there was an anonymous tip concerning the Defendant traveling to the Wausau area with cocaine . . . [t]hat Detective Beecher of Milwaukee had informed Officer Jaeger that the defendant would be arriving in Wausau with cocaine, based on the anonymous tip." The motion argued that the tip was "unverified and unsubstantiated," that if admitted it would tend to show guilt without allowing Cooper to confront the tipster, that its probative value is "significantly outweighed by the prejudicial effect that it might have on . . . the members of the jury," and that "any objections to such evidence at trial, even if sustained and/or curative instructions given, would not remove the prejudicial effects thereof." During a pre-trial hearing on the motion before the Magistrate, the government asserted that it believed that case law clearly supported the admissibility of the fact that the tip was received by the police. The magistrate then stated, "I suppose the question would be how much detail you are allowed to put in [regarding the tip]." Cooper's counsel then replied, "Since I filed this motion in limine I have had additional discovery. Quite frankly at this point if it comes in, I don't have any objection." The Magistrate then offered, "If you want the government to brief it, that's fine." Cooper's counsel responded "No. At this particular point, first of all, I truthfully believe that probably it would come in to explain the officer's actions as far as the tip. Given, as I said, the newly discovered evidence, I think I will withdraw the entire motion. How's that sound?" The Magistrate again reminded Cooper's counsel that "[i]t's your choice. You are certainly entitled to be heard on it." However, Cooper's counsel reiterated "[n]o. I just as soon withdraw it [sic]." During a conference held on the first day of trial, the government confirmed with the district court and Cooper's counsel that it would be asking Jaeger to testify "as to tip information that he received," and it explicitly stated that this information "would normally be perceived as hearsay." After the government reasserted its belief that case law supported the admissibility of the tip and reiterated that it was "advising the Court up front" that it would be eliciting Jaeger's testimony regarding the tip, the court asked Cooper's counsel if he had any response. Cooper's counsel said "Nothing in that regard, Your Honor."

At trial, both the government and Cooper's counsel referred extensively to the substance of the anonymous tip. In its opening statement, the government stated that it anticipated that the evidence would show that "[o]n April 16, 1999, law enforcement officers up in Wausau, Wisconsin received a tip by telephone and in that tip they learned that an individual would be arriving in Wausau that evening on the bus and a description matching Mr. Cooper and that individual would be carrying a quantity of drugs." Later, through its direct examinations of officers Jaeger and Peters, the government brought out more of the details of the tip, including the tipster's prediction that "a black male by the name of Brian Cooper" was coming to Wausau carrying several ounces of cocaine, that Cooper would be wearing either a gray FUBU style jacket or a black leather jacket with writing on it, that he would be carrying a duffel bag, and that he boarded a Greyhound bus which left Milwaukee at 2:30 and which would arrive in Wausau at 7:15. In its closing statement, the government summarized Jaeger's testimony and described the tip as "very accurate." At no point did Cooper's counsel object to any of the government's references to either the existence or the substance of the tip, nor did he request the court to provide any kind of a limiting instruction regarding the tip.

Cooper's counsel also made significant use of the substance of the tip during the trial. In his opening statement, Cooper's counsel stated: "But we have this anonymous tip. This is the link, if you will, and it's a call to the Milwaukee authorities advising, so I understand, that he [Cooper]'d be traveling by bus, arriving about 7:15, carrying several ounces of cocaine . . . That he was going to be wearing a gray FUBU jacket . . . or a black leather jacket . . . [a]nd that he would be carrying a black duffel bag." Similarly, in his cross-examination of Jaeger, Cooper's counsel asked "But basically the tip was that Brian Cooper would be arriving from the Milwaukee area and were you informed that it would be around 7:15? . . . And that he would be carrying a black duffel bag, correct?" Trial Trans. at 59-60. Finally, in his closing argument, Cooper's counsel again referred to the substantive details of the tip, this time using those details to suggest that Jetaun Brown, the wife of the car's driver, Jemeir Brown, was the only person who could have been the tipster: "Really there's only one person, one person who knew that in fact he was going to Wausau . . . that's Jetaun Brown . . . Again, what was the tip? The trip [sic] was that Brian Cooper would be arriving, that he in fact would be carrying a duffel bag . . . and that he would be there approximately 7:00, 7:15 . . . So who made the tip? . . . I think the evidence is that Jetaun Brown made the tip."

The jury convicted Cooper as charged. He asks us to vacate his conviction and to remand for a new trial, arguing that even though he forfeited objections to the admission of the substance of the tip by failing to object at trial, the district court plainly erred by allowing repeated reference to, and testimony regarding, the substance of the anonymous tip implicating Cooper. Cooper contends that the government's references to the substance of the tip-- which included a specific charge of criminality against Cooper--violated his rights to...