U.S. v. Nicksion

• Citation: 628 F.3d 368
• Decision Date: 08 April 2011
• Docket Number: Nos. 09-3755,Nos. 09-3732,s. 09-3732,s. 09-3755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlandes NICKSION and Mark Cubie, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

628 F.3d 368

UNITED STATES of America, Plaintiff-Appellee,

v.Orlandes NICKSION and Mark Cubie, Defendants-Appellants.

Nos. 09-3732, 09-3755.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 20, 2010.

Decided Dec. 9, 2010.

Rehearing and Rehearing En Banc Denied April 8, 2011.

Michelle L. Jacobs (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Jeffrey W. Jensen, Sr. (argued), Milwaukee, WI, for Defendant-Appellant in No. 09-3732.

Andrea E. Gambino (argued), Gambino & Associates, Chicago, IL, for Defendant-Appellant in No. 09-3755.

Before FLAUM, RIPPLE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Orlandes Nicksion and Mark Cubie, along with several others including Nicksion's cousin, Ronald Terry,¹ were charged with drug trafficking conspiracy and various drug and gun offenses. After withdrawing his guilty plea,² Nicksion proceeded to trial. A jury subsequently convicted him of drug trafficking conspiracy, in violation of 21 U.S.C. § 846, aiding the discharge of a firearm during the drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to a total term of 480 months' imprisonment. Cubie pled guilty—and did not seek to withdraw his plea—to drug trafficking conspiracy, in violation of 21 U.S.C. § 846, and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), while preserving pretrial issues for appeal. He was sentenced to a total term of 295 months' imprisonment.

Both men now appeal but challenge different rulings. Nicksion argues that his confrontation clause rights were violated at trial when the district judge admitted out-of-court statements implicating Nicksion in the homicide of Earl Benion, which was used to prove the firearm offense under § 924. Cubie, on the other hand, argues that his pretrial motion to suppress evidence seized from his car during a traffic stop was improperly denied. He also contends that the district judge should have granted his request for a pretrial proffer or hearing regarding the admissibility of co-conspirator statements and that the judge made multiple errors at sentencing. We begin with Nicksion and the facts as established at his trial.

The trial consisted of two main components: the drug trafficking conspiracy and the Benion homicide. Nicksion's arguments on appeal only concern the latter. To briefly summarize the former, the evidence showed that, from 2002 to 2005, Nicksion, Cubie, Terry, and others were involved in procuring large quantities of cocaine, crack, and marijuana from Chicago sources for distribution in Milwaukee, Wisconsin. In general, Nicksion and Cubie would obtain the drugs and provide Terry with a supply to sell. The conspirators used an apartment in a duplex owned by Nicksion's great-uncle, Robert Bridges, and his wife for drug trafficking. At times, Bridges also assisted with drug sales.

The evidence of the homicide showed that, on September 18, 2002, Benion's son, Sirus (age twelve at the time), saw Nicksion and Terry repeatedly drive by his home in a silver Monte Carlo with Illinois plates, while his father was outside. At one point, Nicksion blew Benion a kiss. Terry shot Benion that night, and Benion died the next day.

Immediately after the shooting, Terry, Cubie, Nicksion, Nicksion's father, and Bridges all met in Bridges' apartment. (Nicksion had previously told Bridges, during a meeting with Terry and Cubie, that they intended to hurt Benion if he did not pay a drug debt.) Over Nicksion's hearsay and confrontation objections, Bridges testified that Terry then confessed to shooting Benion because of the debt owed to Cubie, Nicksion, and Terry. Nicksion was quiet during the meeting. But later, when Benion's obituary appeared in the newspaper, Nicksion told Bridges that Benion "should have paid us our money."

Later that month, Terry got rid of the murder weapon by selling it to Frederick Bonds. (Bonds, a drug dealer by trade, had previously seen Terry with the same gun and had learned from Terry that Benion owed money to Nicksion.) Terry told Bonds that he (Terry) needed to get rid of the gun because it was "hot." Over Nicksion's hearsay and confrontation objections, Bonds testified that Terry said that Nicksion and he went looking for Benion, there was an argument over money, and he (Terry) shot Benion. The gun was later recovered from Bonds and traced to the homicide.

Terry also confessed to Darin Palmer, a childhood friend who worked drug houses with Terry. In the fall of 2003, Palmer learned that Terry's drug source was Nicksion. Over Nicksion's hearsay and confrontation objections, Palmer testified that, about a year later, while in a drug house, Terry said that he killed Benion over a drug debt and had been compensated for the shooting.

Milwaukee police detective Chad Wagner investigated the Benion homicide. Wagner eventually contacted Avis Rent-A-Car after learning of a vehicle that he "believe[d]" was linked to the homicide. Over Nicksion's hearsay objection (he later objected to similar testimony on confrontation grounds as well), Wagner testified that an Avis employee told him that, on August 18, 2002, Melissa Zaragoza rented a silver Monte Carlo with Illinois plates. Officers followed up with Zaragoza, who admitted to knowing Nicksion's wife, Nicksion, Benion, and Terry but denied renting the car in question. Eventually, the car was found, but it yielded no evidence regarding the murder or Nicksion.

Prior to his trial, Nicksion was detained for several months with inmate Trenton Gray. Nicksion eventually told Gray that Terry had been involved in the Benion shooting. Nicksion further explained that Terry and he had gone to collect a drug debt from Benion, when Terry shot and killed him.

Nicksion argues that the district judge should not have admitted the testimony of Bonds, Bridges, Palmer, and Wagner. This testimony, Nicksion asserts, was the only evidence linking him to the Benion homicide, which, to repeat, supported his firearm conviction under § 924. In his opening brief, Nicksion only appears to invoke the confrontation clause of the Sixth Amendment, making our review de novo. United States v. Turner, 591 F.3d 928, 932 (7th Cir.2010). In his reply brief, however, Nicksion claims that he also raised a hearsay argument. That issue, if properly preserved, is reviewed for an abuse of discretion. United States v. Harris, 585 F.3d 394, 398 (7th Cir.2009).

Bonds, Bridges, and Palmer all testified that Terry confessed to shooting Benion while Nicksion and Terry were trying to collect on a drug debt. As Nicksion concedes, there is no confrontation clause problem here because Terry's statements were not testimonial. See Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding that, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the confrontation clause applies only to testimonial hearsay); see also Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 2536, 174 L.Ed.2d 314 (2009) (explaining that Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), was overruled by Crawford). The government argues that this resolves the matter because Nicksion did not preserve a hearsay argument in his opening brief. See United States v. Dabney, 498 F.3d 455, 460 (7th Cir.2007) (stating that arguments not raised in the opening brief are waived).

Even giving Nicksion the benefit of the doubt on the preservation issue, Terry's statements were made in furtherance of the conspiracy and therefore admissible under Federal Rule of Evidence 801(d)(2)(E). Terry's statement to Bonds was made in an attempt to get rid of the murder weapon. He made his statement to explain why he needed to sell the gun—namely, because it was "hot." Terry's statement to Bridges occurred immediately after the shooting, while he and his co-conspirators, including Nicksion, were discussing how to handle it.³ The statement to Palmer was more attenuated from the homicide but still furthered the conspiracy. Specifically, Terry confessed at a drug house, while he was working for Nicksion and Cubie, in an effort to explain his relationship with them to a fellow drug dealer.

Detective Wagner's testimony is a little trickier because it implicates the confrontation clause. The government's first argument on this issue is that Nicksion is now challenging testimony to which he did not object at trial. Nicksion's complaint on appeal is with Wagner's statement that he "believe[d]" that an Avis rental car was linked to the homicide. And, in fact, there was no objection to this testimony at trial. Later, when Wagner said that an Avis supervisor told him that, shortly before the murder, Melissa Zaragoza rented a silver Monte Carlo with Illinois plates, Nicksion finally lodged an objection. As that statement was clearly not offered for the truth of the matter asserted—that is, the government was not trying to prove that Zaragoza rented the car in question—it is not surprising that Nicksion has abandoned the argument. We may still review the admission of Wagner's preceding testimony regarding his "belief," but only for plain error. See United States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir.1995).

Even assuming an "error" that was "plain" (a stretch, considering that Wagner never recounted statements that he solicited to form his "belief" and simply appeared to be explaining the course of his investigation), the testimony clearly did not affect Nicksion's "substantial rights." See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). First, other evidence supported a connection between the car and the homicide. Zaragoza, in whose name the car was rented, admitted to knowing Nicksion's wife, Nicksion, Benion, and Terry. And Sirus Benion, the 12-year-old boy you'll recall,...