U.S. v. Rodgers

• Decision Date: 01 February 1985
• Docket Number: No. 84-1279,84-1279
• Parties: 17 Fed. R. Evid. Serv. 579 UNITED STATES of America, Plaintiff-Appellee, v. Cleveland R. RODGERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 533

755 F.2d 533

17 Fed. R. Evid. Serv. 579

UNITED STATES of America, Plaintiff-Appellee, v. Cleveland R. RODGERS, Defendant-Appellant.

No. 84-1279.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 26, 1984.

Decided Feb. 1, 1985.

Mervyn Hamburg, Washington, D.C., for plaintiff-appellee.

Michael P. Seng, Edward B. Arnolds, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, and POSNER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Cleveland Rodgers was convicted following a jury trial on three counts of violating federal drug laws in connection with a scheme to distribute cocaine to an undercover government agent. On appeal, Rodgers alleges ten separate errors as bases for reversing his convictions. Although some of Rodgers's arguments present difficult questions, we find no reversible error, and therefore affirm the convictions.

I. FACTS

The prosecution of Cleveland Rodgers represents "one part of a large Government investigation into alleged narcotics dealings." Tr. at 14. A central figure in this investigation conducted by the Drug Enforcement Administration ("D.E.A.") is Michael Skeans, an informant who began cooperating with the government after he was arrested on drug charges in February 1983. Skeans introduced Rodgers to Raleigh Lopez, an undercover special agent for the D.E.A., and thereby set in motion the events leading to this prosecution. We summarize these events assuming, as we must, that the jury viewed the evidence in a light most favorable to the government. See United States v. Kaminski, 703 F.2d 1004, 1005 (7th Cir.1983).

Beginning in February 1983, Lopez and Skeans made a series of five telephone calls from Chicago to Rodgers in the Bahamas, Rodgers's home and place of citizenship. During these tape recorded conversations, Lopez, using the undercover name "Gary," acted as a friend of Skeans's who sought to purchase from Rodgers a large quantity (two kilograms) of cocaine. Much of the discussion apparently focused on Lopez's attempts to persuade Rodgers to travel and deliver the cocaine to Chicago personally, and Rodgers's demand that Lopez make a cash deposit before delivery. The last of these recorded calls occurred on May 25, 1983.

On August 16, 1983, Lopez and Skeans, along with law enforcement officers Pamela Laco and Thomas DeCanter, traveled to the O'Hare Hilton Hotel outside Chicago. Lopez, Skeans, and Laco proceeded to a hotel room where they met Patrice Tynes, a woman whom Skeans knew and who identified herself as Rodgers's fiancee. Upon request, Tynes produced from her purse a tinfoil package containing a small sample--later determined to weigh about 9/10 gram--of white powder containing cocaine. Lopez and Laco then escorted Tynes to the hotel lobby, where DeCanter was waiting with a bag containing $20,000 cash. DeCanter showed Tynes the money, and Tynes then returned to the hotel room with Lopez and Laco. Back in the room, Tynes telephoned Rodgers in the Bahamas and told him that she had seen the cash. Lopez also spoke on the phone, and Rodgers tried to persuade him to give the money to Tynes as a deposit. Lopez refused, again insisting that Rodgers travel to Chicago personally in order to receive payment.

Finally, on the morning of August 28, 1983, Lopez received a call from Skeans notifying him of Rodgers's arrival at O'Hare International Airport. Accompanied by officers Laco and Guadelupe Rodriguez, Lopez and Skeans drove to the airport, where they met Rodgers in the terminal. Rodgers told Lopez and Skeans that his source had a kilo of cocaine ready for delivery (although Rodgers himself had none in his possession), and that he wanted to collect the $20,000 from them and fly back to the Bahamas that day. Lopez then introduced Rodriguez to Rodgers as a friend who owned a currency exchange in downtown Chicago, and said that the $20,000 would have to be picked up there. Rodgers thus got into Lopez's car along with Skeans and the other officers, and Lopez began driving downtown.

While enroute, Rodgers had a conversation with Lopez in which he made a number of incriminating statements. Rodgers asked Lopez about the quality of the cocaine sample that had been delivered by Tynes, whom Rodgers said was now his wife. When Lopez complained that the quality wasn't that good, Rodgers said that the kilo to be delivered would be of superior quality. Further, in response to Lopez's questioning about how many kilos of cocaine were available for sale, Rodgers said that he and his associates used to have 100 kilos, but only 49 were left. Rodgers ultimately said that he would sell Lopez 10 kilos of cocaine every two weeks. Finally, Rodgers described his involvement in a number of previous cocaine transactions, along with his 1981 arrest on drug charges in Chicago. Rodgers said that after the 1981 arrest, he gave a fictitious name ("Yaamme Neefie"), posted bond, and fled to the Bahamas.

The car ride ended in front of the federal building in downtown Chicago, where Lopez told Rodgers that he was under arrest. According to Lopez, Rodgers replied: "I should have known." Tr. at 173. While in custody, Rodgers signed a waiver of rights form and gave a handwritten statement confessing that he had arrived in Chicago on August 28, 1983, "to meet my friend, Michael Skeans, to receive a deposit of $20,000 to initiate the purchase of one kilogram of cocaine." Id. at 187. In this statement, Rodgers also admitted that "[o]n August 16th I sent my fiance to meet with Michael Skeans and collect $20,000 for me," but claimed that Tynes "was not familiar with the arrangements, and an associate ... planted a sample on her without her knowledge." Id. at 187-88. Finally, Rodgers's statement named several persons as sources of cocaine in the Bahamas.

Based on the information and events described above, a grand jury returned an eleven-count indictment against Rodgers and Tynes. The majority of these counts were dismissed either before or during trial, however, leaving only three counts which actually went to the jury: Count I, for conspiring with Tynes to distribute, or to possess with intent to distribute, cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982); Count II, for actual distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982); and Count III, for use of a telephone in causing or facilitating the commission of a conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 843(b) (1982).

The government's evidence at trial consisted primarily of Rodgers's written statement, testimony by Lopez and the other officers invovled in the case, testimony by Skeans describing the particular events relating to the indictment as well as Rodgers's involvement in previous cocaine transactions, and the tape recordings and transcripts of the five phone conversations between Rodgers, Skeans, and Lopez. Rodgers's counsel, by his cross-examination of government witnesses and by his jury instruction on the defense's theory of the case, suggested that Rodgers's real intent was not actually to sell cocaine to Lopez, but simply to abscond to the Bahamas with the $20,000. Nevertheless, Rodgers did not testify himself, nor did he call any other witnesses in his defense. After an approximately three-day trial, the jury convicted Rodgers on all three counts. Judge Aspen sentenced him to six years imprisonment followed by a twenty-year special parole term on Count II, and to five years probation on each of Counts I and III. The five years probation on Counts I and III were set to run concurrently, but consecutive to the sentence imposed on Count II.

Rodgers now presents ten bases for reversing his convictions. For purposes of brevity and clarity, however, these alleged errors by the district court can best be discussed in four sections: 1) denial of Rodgers's motion for a continuance, 2) denial of his motion to dismiss Count III based on the alleged unconstitutionality of section 843(b) and the insufficiency of the evidence, ¹ 3) adverse rulings on several evidentiary issues, and 4) refusal to give several jury instructions submitted by the defense. We will discuss each of these points in turn.

II. DENIAL OF A CONTINUANCE

As a result of circumstances beyond his control, the defendant was represented at trial by an attorney who had been appointed by the court approximately two days before jury selection began, and four days before the actual trial commenced. Rodgers's contention that the district court committed reversible error by denying his counsel's motion for a continuance in this situation is perhaps the most serious issue on appeal because of its potential overarching effect on the fairness of the trial as a whole.

An attorney from the Federal Defender's office was appointed by the court to represent the defendant shortly after his arrest. This attorney filed a number of pre-trial motions, and completed most of the preparation for trial, which was ultimately set for Friday, December 2, 1983. On Wednesday, November 30, 1983, however, the Federal Defender's office received Jencks Act files from the government which revealed that the government planned to call as a witness against Rodgers a person whom the office represented as a client. The defendant's attorney therefore moved that very day to withdraw from the case, and Judge Aspen searched the list of private attorneys on the Federal Defender panel for a replacement. Judge Aspen telephoned the first attorney on the alphabetical list, Edward Arnolds, and asked whether he could represent the defendant, explaining that the trial would begin that week. Arnolds accepted the appointment.

Nevertheless, when he appeared in court on Friday afternoon--when jury selection was set to begin--Arnolds moved orally for a continuance. He rested the motion on two grounds: first, that he was generally not adequately prepared for trial, ² and, second, that he needed...