U.S. v. Tolliver

• Citation: 454 F.3d 660
• Decision Date: 19 July 2006
• Docket Number: No. 05-2962.,No. 05-2910.,05-2910.,05-2962.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. TOLLIVER and Archie Dunklin, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.3d 660

UNITED STATES of America, Plaintiff-Appellee, v. John L. TOLLIVER and Archie Dunklin, Jr., Defendants-Appellants.

No. 05-2910.

No. 05-2962.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2006.

Decided July 19, 2006.

COPYRIGHT MATERIAL OMITTED

George A. Norwood (argued), Office of U.S. Attorney, Benton, IL, Michael Thompson, Office of U.S. Attorney Criminal Division, for Plaintiff-Appellee.

Daniel F. Goggin (argued), Greenville, IL, for Defendant-Appellant.

John R. Abell (argued), Troy, IL, for Archie Dunklin, Jr.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury convicted John Tolliver and Archie Dunklin of conspiring to distribute and possess with intent to distribute 50 grams or more of crack cocaine. The district court sentenced Tolliver and Dunklin to 240 and 360 months of imprisonment, respectively. The defendants appeal, raising two evidentiary arguments and challenging portions of the jury instructions. We affirm in all respects.

I.

The grand jury in this matter issued a superseding indictment (hereinafter "the indictment"), charging John Tolliver and Archie Dunklin with one count of conspiring to distribute and possess with intent to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. According to the indictment, Tolliver and Dunklin perpetrated this conspiracy with someone named Reginald Walls and other unnamed persons from January 2002 to March 2004. The conspiracy primarily entailed purchasing crack cocaine in St. Louis, Missouri and selling it in DuQuoin, Illinois.

The cases against Tolliver and Dunklin were tried jointly in March 2005. In a three-day trial, the government called more than a dozen witnesses, including Walls, to show that during the relevant period Tolliver and Dunklin each made numerous trips with an assortment of people to St. Louis to purchase varying quantities of crack cocaine. This evidence further showed that they transported the crack cocaine back to DuQuoin, where they sold it. These witnesses included those who traveled with the two to St. Louis as part of the conspiracy, others who sold crack cocaine to the conspiracy, and still others who purchased crack cocaine from the conspiracy. According to these witnesses, the conspiracy trafficked in well over 50 grams of crack cocaine. Also, according to the trial testimony, Dunklin once purchased powder cocaine in Memphis, Tennessee, and, upon returning to DuQuoin, converted it into more than 170 grams of crack cocaine.

Beyond this general background, three segments of the trial are pertinent to this appeal. First, in addition to the aforementioned testimony and other evidence, the government played two audiotapes for the jury concerning Dunklin. Each tape contained a recorded conversation between Dunklin and a confidential informant named Charles Shye. During the conversations, Shye made controlled purchases of crack cocaine from Dunklin. Shye did not testify at trial, but the government authenticated the tapes through the testimony of a police detective named Jamie Ellermeyer, who worked with Shye on the controlled buys and the recordings. Additionally, the government introduced the crack cocaine that Dunklin sold to Shye during each conversation.

Second, Tolliver (unlike Dunklin) took the stand in his own defense. Tolliver was the only defense witness at trial. On direct examination, Tolliver confessed to being a "crack addict" but denied the conspiracy charge against him, attempting to paint himself as anything other than a drug dealer. To further his claim of innocence, Tolliver asserted that he had no reason to sell drugs because he earned a legitimate income as a mechanic. At one point, for instance, he stated: "I have no reason to sell crack. I worked all my life." During his direct examination, Tolliver also attempted to blunt the testimony of Walls, the co-conspirator named in the indictment. Tolliver flatly rejected Walls's statements that, during the relevant period, Tolliver purchased crack cocaine in St. Louis and resold it in DuQuoin. Tolliver further denied that he had "ever conducted any drug business with" Walls.

On cross-examination, the government probed the veracity of these denials. Specifically, the government, after the district court overruled Tolliver's objection at sidebar, asked Tolliver about his prior drug dealings, including a conviction from 1992. Before trial, the district court had ruled that the government could not raise matters related to that conviction, but, after hearing Tolliver testify, the district court allowed the government to bring up those matters in response to Tolliver's testimony. Through this questioning, Tolliver admitted selling one crack-cocaine-laced marijuana cigarette in 1991 and acknowledged pleading guilty in 1992 to a corresponding state felony charge. The government then inquired if, in relation to that episode, Tolliver had spoken with the police about becoming a confidential source against Walls. In that regard, Tolliver denied ever telling the police that he could obtain crack cocaine from Walls. He also denied informing the police, in the context of that 1991-1992 investigation, that he had been with Walls when Walls had brought crack cocaine back from East St. Louis, Illinois to DuQuoin.

The government then called a retired DuQuoin police officer named Gary Darnell as a rebuttal witness. Darnell worked on the aforementioned 1991-92 case, and his testimony refuted key points of Tolliver's testimony. Darnell reported that Tolliver had sold, not one, but four crack-cocaine-laced marijuana cigarettes to undercover officers in 1991. Darnell also stated that, during the follow-up investigation, he had spoken to Tolliver about becoming a confidential source. In that context, according to Darnell, Tolliver styled himself as a drug trafficker, stating that he could obtain crack cocaine from Walls for Darnell's investigation. According to Darnell during that investigation, Tolliver also stated that he had been with Walls in East St. Louis and brought crack cocaine back to DuQuoin.

Third, after each side rested, attention turned to jury instructions. Three instructions are important to this appeal. The district court's Instruction 6 introduced the indictment as the relevant charging document, cautioning that it was not evidence of guilt. Instruction 11 defined the elements of the crime and told the jury that, to convict, the government had to prove "that the conspiracy as charged in the Superseding Indictment existed." In turn, the indictment, as is customary in the post-Apprendi¹ world, referenced the necessary drug quantity for sentencing purposes: alleging that the defendants "conspire[d] . . . to knowingly and intentionally distribute and possess with intent to distribute 50 grams or more of. . . `crack cocaine' . . ." Additionally, Instruction 12, in keeping with Apprendi, told the jurors that, "if" they arrived at a guilty verdict, they "then" had to determine the quantity of drugs involved in the conspiracy. Verdict and special verdict forms reiterated these points.

In their deliberations, the jurors found each defendant guilty of the charged conspiracy and further determined that the conspiracy was responsible for 50 grams or more of crack cocaine. Thereafter, the district court sentenced Tolliver and Dunklin to 240 and 360 months of imprisonment, respectively. The defendants appeal.

II.

In this appeal, we confront three independent issues. First, Dunklin challenges the admission of the audiotapes that recorded two of his conversations with a confidential informant. Second, Tolliver contests the government's inquiry into his 1991 drug sale to undercover police officers, his corresponding conviction, and related matters. Finally, the defendants argue that portions of the jury instructions referencing the indictment and drug quantity confused the jury and led to erroneous convictions. We address each issue in turn.

A.

We begin with Dunklin's challenge to the audiotapes that recounted Dunklin selling crack cocaine to the confidential informant, Shye. Dunklin concedes that this evidentiary matter was not properly preserved and that, as a consequence, our review is limited to plain error. See United States v. Hodges, 315 F.3d 794, 800 (7th Cir.2003). "Under the plain error standard, we will not reverse a decision unless the defendant demonstrates that (1) there was error; (2) the error was plain; and (3) the error affected the defendant's substantial rights. If the defendant meets these three requirements, we may correct the error if in our discretion, we find the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Trennell, 290 F.3d 881, 887 (7th Cir.2002) (quotations and citations omitted).

Relying exclusively upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Dunklin argues for a new trial, contending that the admission of the tapes violated his constitutional right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Crawford addressed the admission of testimonial hearsay in criminal trials, holding that the Sixth Amendment's Confrontation Clause bars the admission of such testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354; see also United States v. Kelley, 446 F.3d 688, 691 & n. 2 (7th Cir.2006); United States v. Price, 418 F.3d 771, 780 (7th Cir.2005). While Crawford did not firmly define the word "testimonial" for every situation, see 541 U.S. at 68, 124 S.Ct. 1354, examples and other guidance from the Supreme Court indicate that the term pertains to statements that a declarant makes in anticipation of or with an eye toward a criminal prosecution. See Davis v. Washington, ___ U.S. ___, ___, ___, ___, 126...