U.S. v. Eberhart
| Decision Date | 28 October 2004 |
| Docket Number | No. 03-2068.,No. 04-1377.,03-2068.,04-1377. |
| Citation | 388 F.3d 1043 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Ivan EBERHART, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, James B. Zagel, J.
COPYRIGHT MATERIAL OMITTED
Amarjeet Singh Bhachu (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Leonard C. Goodman (argued), Chicago, IL, for Defendant-Appellee and Defendant-Appellant.
Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.
Ivan Eberhart was convicted by a jury of conspiring to distribute cocaine. Eberhart subsequently moved for a judgment of acquittal or in the alternative for a new trial. The district court denied the motion for judgment of acquittal, but granted the motion for a new trial. The government appeals the grant of a new trial, and Eberhart cross-appeals the denial of the judgment of acquittal. For the reasons stated herein, we reverse the grant of a new trial, remand for sentencing, and dismiss the cross-appeal for lack of jurisdiction.
On December 16, 1998, Drug Enforcement Agency ("DEA") Task Force Officer Daniel Foley and DEA Agent Robert Glynn arrested Charles Bolden for distributing cocaine. After being arrested, Bolden agreed to help the DEA apprehend his drug source, then identified only as "E." Officer Foley and Agent Glynn directed Bolden to telephone his source, order two kilograms of cocaine, and attempt to arrange a meeting in person. Bolden then called Eberhart:
After several additional phone calls, the two men agreed to meet at 5:15 P.M. on December 17, 1998, "where we met at last time [ ] by the state trooper place." Before the meeting, Foley and Glynn fitted Bolden with an electronic recording and transmitting device. They then followed in a separate car as Bolden drove to a parking lot outside a Kentucky Fried Chicken at the intersection of East 83rd Street and South Martin Luther King Drive in Chicago.2 At 5:15 P.M., Eberhart arrived. Bolden got into Eberhart's car and the two drove out of the parking lot. As they drove, Eberhart repeatedly asked Bolden what had happened to him while in DEA custody the day before.3 After talking for several minutes, the men returned to the parking lot. When Bolden got out of the car, DEA agents arrested Eberhart.
Although no drugs were found on Eberhart, he confessed that he had been distributing 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 DEA arrest his source of supply, identified only as "Tommy." Defendant gave Foley and Glynn a physical description of Tommy, his cellular and pager phone numbers, and the location of a "stash house" out of which Tommy operated. Eberhart also explained that his standard procedure for obtaining additional cocaine was to call Tommy, schedule a pick up, and arrive at the stash house at either 6:00 A.M. or 6:00 P.M. to blend in with ordinary commuters.
At the direction of Foley and Glynn, Eberhart called Tommy to attempt to arrange a cocaine sale. On December 19, 1998, however, Eberhart terminated his cooperation with the DEA. The sale fell through, and Tommy was never apprehended. Despite these setbacks, Foley and Glynn searched the stash house identified by Eberhart, discovering a scale, a firearm, and two high-speed money counters.
On March 16, 1999, the grand jury for the Northern District of Illinois indicted Eberhart on one count of conspiring to distribute cocaine, and one count of distributing cocaine. At trial, the government introduced evidence of its investigation as described above.
On April 3, 2002, a jury acquitted Eberhart of the distribution charge, but convicted him of the conspiracy charge. The district court set May 15, 2002 as the deadline for post-trial motions. On May 15, 2002, Eberhart moved for judgment of acquittal or, in the alternative, a new trial. On October 30, 2002, Eberhart filed a supplemental memorandum in support of his motions for judgment of acquittal or a new trial.
On March 21, 2003, the district court denied the motion for judgment of acquittal, but granted the motion for a new trial. It cited three reasons justifying a new trial. First, the court explained that it was concerned about the accuracy of a transcript of one of the phone conversations between Eberhart and Bolden that had been published to the jury. The transcript at issue (Transcript 7A) reflects the following exchange:
BOLDEN: Okay, so, [unintelligible] we
gonna take care of them
people? How you wanna do
that
EBERHART: I'm gonna, I'm gonna
talk to you face to face
BOLDEN: Okay. Alright, I'll see you
then.4
In closing argument, the government repeatedly emphasized Eberhart's desire for a "face to face" meeting, asserting that this was consistent with the actions of a drug dealer attempting to avoid having his conversations recorded by law enforcement.
After trial, however, a defense expert opined that Transcript 7A incorrectly quoted Eberhart as calling for a "face to face" meeting. The expert asserted that,
The second reason cited by the district court as justifying a new trial was its belief that it might have erred in allowing potential hearsay testimony into evidence. During the government's case-in-chief, Foley testified about his post-arrest interview with Bolden, despite the fact that Bolden was not called as a witness. The government asked Foley who Bolden had identified as his source of supply. Over defense counsel's objection, the district court permitted Foley to answer, instructing the jurors that they should consider the testimony only to explain the course of the investigation, not for its truth. Foley then testified that Bolden "agreed to make a phone call to `E,' his source of supply, to obtain two more kilograms of cocaine." Defense counsel again objected, and asked that the court strike the testimony "about his source of supply, with reference to Ivan Eberhart." The district court overruled the objection. In granting the motion for a new trial, the district court reflected that "[w]ere I to rule on this issue again, I might rule differently."
Finally, the district court granted a new trial because it believed that it had erred by failing to give a buyer-seller instruction to the jury.5 Defense counsel did not request the instruction, nor did he argue to the jury that Eberhart was innocent of the conspiracy charge because he and Bolden had a mere buyer-seller relationship.
In granting the motion, the district court explained: "none of these concerns standing alone or in pairing would cause me to grant a new trial," but the three issues cumulatively "persuade me that the interests of justice require a new trial." The court also noted, "I believe a new trial will quite likely lead to another conviction."
Of the three grounds cited by the district court, Eberhart's initial motion pointed only to the alleged flaw in Transcript 7A as justifying a new trial. The admission of Bolden's statement and the lack of a buyer-seller instruction were first raised in defendant's untimely supplemental memorandum. The government, however, did not argue to the district court that it lacked jurisdiction to consider the assertions raised in the supplemental memorandum.
We have jurisdiction to hear an appeal from the grant of a motion for a new trial under 18 U.S.C. § 3731, and review the district court's decision for abuse of discretion. United States v. Woolfolk, 197 F.3d 900, 904-05 (7th Cir. 1999); United States v. Boyd, 55 F.3d 239, 242 (7th Cir.1995).
Federal Rule of Criminal Procedure 33 provides, in relevant part, that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." "[C]ourts have interpreted [Rule 33] to require a new trial `in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). "A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly." United States v. Santos, 20 F.3d 280, 285 (7th Cir.1994) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.1990), amended on other grounds, 910 F.2d 467 (7th Cir.1990)). "Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Fed.R.Crim.P. 33(b)(2).
The government contends that the district court abused its discretion by basing its decision to grant a new trial on arguments that were not timely raised by Eberhart. The government correctly points out that Eberhart's initial motion did not argue that the district court erred by admitting Bolden's statement or failing to give a buyer-seller instruction. Eberhart counters that the government forfeited its challenge to the timeliness of his supplemental memorandum by not raising the issue before the district court. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (); EEOC v. Ind. Bell Tel. Co.,...
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