U.S.A v. Jerme. L. Lee

• Decision Date: 20 August 2010
• Docket Number: No. 09-2698.,09-2698.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jermaine L. LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

618 F.3d 667

UNITED STATES of America, Plaintiff-Appellee,v.Jermaine L. LEE, Defendant-Appellant.

No. 09-2698.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2010.

Decided Aug. 20, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Defendant-Appellant.

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

CUDAHY, Circuit Judge.

On April 4, 2008, Jermaine Lee was arrested on charges of conspiracy to distribute crack cocaine, distribution of crack cocaine and possession with intent to distribute crack cocaine. Approximately six hours after being brought into custody, three police officers, who had just conducted a search of a codefendant's house, interviewed Lee from 12:05 a.m. until 1:28 a.m. The officers began the interview by asking questions from a personal-history report, which consisted of two pages. The first page contained information about Lee's nicknames, recent addresses, height, weight and social-security number. Sergeant Brian Gorsuch, one of the interrogating officers, asked Lee all of the questions from this page and filled in answers for each one. To this first page, Gorsuch also added that Lee was a member of the Gangster Disciples street gang. The second page consisted of questions about marital status, parents, siblings, children, military experience, outstanding loans, as well as prior arrests, drug usage, drugs associates and sources of income. Save for some biographical information on Lee's children, it would seem that the answers on this page were left blank. Having filled out the noted portions of the personal-history report, the officers read Lee his Miranda rights. Lee signed a Miranda waiver and then proceeded largely to cooperate with the officers by answering most of their questions.

During the interview, Lee made several incriminating statements. Having contemplated the prudence of his confession in the minutes following the end of the interview, Lee wrote a letter to Gorsuch. In that note, Lee stated that he had admitted to things he had not done and wished to take back everything he had said. Prior to trial, Lee filed a motion to suppress the incriminating statements, alleging that the statements were made in violation of his constitutional rights. Specifically, Lee alleged that the government failed to show that Lee understood his Miranda rights upon signing the Miranda waiver, that the officers had coerced him into providing incriminating statements and that the officers had conducted an illegal two-step interrogation procedure, which rendered his Miranda rights ineffective. The district court denied Lee's motion to suppress.

Following a bench trial, Lee was found guilty on all counts. Lee appeals his conviction arguing that the district court erred, first, in finding that he had effectively waived his constitutional rights; second, in determining that his statements to the police were voluntary and; third, in refusing to grant his motion to suppress the statements he had made during his interrogation. Lee contends that the district court's alleged errors were not harmless beyond a reasonable doubt.

We affirm. Assuming arguendo that Lee's incriminating statements were obtained in violation of his constitutional rights, the court's failure to suppress those statements was harmless beyond a reasonable doubt. The district judge made clear that his holding stood regardless whether the incriminating statements were suppressed. He was emphatic in insisting that the government had proven its case beyond a reasonable doubt independent of those statements. Since the present case involves a bench trial, and because the district judge's explicit elucidation forecloses any realistic prospect that he would have found Lee not guilty, any error was harmless. In addition, we believe that the district court was correct in holding that Lee's constitutional rights were not violated.

I. BACKGROUND

On April 4, 2008, Lee was arrested on charges of conspiracy to distribute crack cocaine, distribution of crack cocaine and possession with intent to distribute crack cocaine. Evidence supporting these allegations consisted of the testimony of several people who were involved in drug transactions with Lee: Jeffrey Smith (Lee's cousin); Clyde White (one of Lee's co-defendants); and Bernard Murray, Cathy Lewis and Erin Kempker (three of Lee's customers). While working for law enforcement, Cathy Lewis sound- and video-recorded three of the drug transactions that took place between herself and Lee.

In October 2005, Lee arranged for Smith to establish a residence in Macomb, Illinois. The residence was to be used to distribute drugs to several of Lee's customers located in Macomb. For several years, Smith worked on and off for Lee delivering crack cocaine to approximately seven of Lee's customers in Macomb and accompanying Lee to buy powder cocaine from two suppliers, initially a man named Tony and later Lee's brother.

Lee also sold crack cocaine directly to several individuals including Murray, White and Lewis. In spring 2006, Lewis began working for law enforcement as a confidential informant. In that role, Lewis recorded three drug sales between herself and Lee occurring on August 29, 2006, September 27, 2006 and December 4, 2007.¹

Lee's arrest, which led to the conviction from which he presently appeals, occurred on April 4, 2008. That day, White and Kempker bought crack cocaine from Lee. The three then drove to Good Hope, Illinois, so Lee could purchase drugs from Terrance Guyton-Whitler. Guyton-Whitler, while driving alone and having just sold drugs to Lee, was pulled over by the police. The police found $1,083 on Guyton-Whitler, as well as $8,000, a digital scale, 6.3 grams of powder cocaine and 15.3 grams of crack cocaine in his glove compartment. While Guyton-Whitler was at the Sheriff's office, Kempker and White smoked the crack that Guyton-Whitler had sold to Lee. They found that the crack was bad. Not knowing that Guyton-Whitler was at the Sheriff's office, Lee called Guyton-Whitler to fix the problem. Cooperating with the police, Guyton-Whitler arranged to meet Lee back in Good Hope. Kempker agreed to drive him to Good Hope, but before leaving Kempker's home, Lee went into a child's bedroom alone and exited shortly after. On their way to Good Hope, Lee and Kempker were pulled over by police officers and arrested. According to an officer's testimony, Lee was advised of his Miranda rights upon his arrest, and when asked if he understood those rights, Lee responded that he did. After questioning Kempker back at the police station, police officers obtained a warrant to search her home. There they discovered baking soda, numerous plastic baggies and a plate with a powdery white substance in the kitchen. They also found 20.5 grams of crack cocaine in the closet of a child's bedroom.

Lee waited in a jail cell until the police officers were done searching Kempker's home. At about midnight, the officers returned and interviewed Lee. To begin the interview, Lee was asked questions from a two-page “Personal History Report”-his responses were recorded in writing by the officers. Apparently, it was typical procedure for the officers to ask questions from the personal-history report before giving a Miranda warning. The first page, which sought information regarding the suspect's nicknames, recent addresses, height, weight, and social-security number, was completed in its entirety by Sergeant Gorsuch. The officer also wrote in Lee's gang affiliation. The second page contained questions about marital status, siblings, children, military experience, outstanding loans, prior arrests, drug usage, drug associates and various sources of money. Although this page is not part of the record presently before us, Lee's attorney announced in a hearing that the page was left blank except for biographical information concerning Lee's children.

Having filled out the noted portions of the personal-history report, Gorsuch read Lee his Miranda rights. The officer did not recall reading aloud the line on the form that states: “I understand my rights and am willing to answer questions.” Gorsuch then filled in Lee's name, marked an “X” where Lee needed to sign and asked Lee if he would sign the waiver. Lee took the waiver form from the officers. According to Gorsuch's testimony, it appeared that Lee read the waiver line before signing the waiver and handing it back to him.

After signing the Miranda form, Gorsuch began to ask Lee questions about events leading up to his arrest. Several minutes into this discussion, Gorsuch asked Lee if he could record the interview. Lee consented. At the start of the recording, Gorsuch stated that Lee had consented to the recording, had been advised of his Miranda rights and had admitted that he had been bringing an ounce of crack from Chicago each week since 2005 and had been selling it to several customers in Macomb. Lee immediately retorted that he had only sold powder cocaine, never crack. Gorsuch said that he knew Lee was lying and reminded him that he had two children and needed to think about his future. He also told Lee that he knew he had sold crack because Lee had been recorded on video and audio selling it. Lee continued to deny selling crack. Gorsuch again accused Lee of lying and informed him that whether he would face additional charges depended on his cooperation. Gorsuch also informed Lee that the additional charges he faced would be worth three years in state court and five years in federal court, and suggested that Lee's arrest could “either stay in state court or the U.S. Attorney's office may be interested in it.” The officers further informed Lee of the crack they had found in the children's room at Kempker's home, and stated that they had seized the money they had found on Guyton-Whitler and that the...