U.S. v. Easley, s. 92-2591

• Decision Date: 21 May 1993
• Docket Number: 92-2592,Nos. 92-2591,s. 92-2591
• Citation: 994 F.2d 1241
• Parties: 37 Fed. R. Evid. Serv. 1337 UNITED STATES of America, Appellee, v. Lynn Edward EASLEY, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1241

994 F.2d 1241

37 Fed. R. Evid. Serv. 1337

UNITED STATES of America, Appellee, v. Lynn Edward EASLEY, Appellant.

Nos. 92-2591, 92-2592.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1993.

Decided May 21, 1993.

Andrea L. Smith (argued), Office of Federal Public Defender, East St. Louis, IL (Phillip J. Kavanaugh, on the brief), for appellant Easley.

Stephen B. Clark (argued), Asst. U.S. Atty., Fairview Heights, IL (Frederick J. Hess, U.S. Atty., and Ranley R. Killian, Jr., Asst. U.S. Atty., on the brief), for appellee U.S.

Before BAUER, Chief Judge, ROVNER, Circuit Judge, and TIMBERS, Senior Circuit Judge. ^*

TIMBERS, Senior Circuit Judge.

Appellant Easley appeals from a judgment entered in the Southern District of Illinois, James L. Foreman, District Judge, upon a jury verdict convicting him of distributing cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1) (1988). Easley was sentenced under the sentencing guidelines to 180 months imprisonment.

Easley claims that (1) he was denied a fair trial because of the use of the term "plea bargaining" in the prosecution's summation argument; (2) the court erred in not allowing certain photographs in evidence; and (3) the evidence was insufficient to support the jury's guilty verdict.

For the reasons that follow, we affirm.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

On September 25, 1991, Easley was indicted by a grand jury on one count of distributing approximately 3.4 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (1988). On February 11, 1992, a jury returned a verdict of guilty. On June 22, 1992, he was sentenced as stated above.

Several key witnesses testified substantially as follows. Larry Binnon, formerly an inspector with the Southern Illinois Drug Task Force of the Illinois State Police, testified that on March 29, 1991 his office received a telephone call from Billy Claussen, a confidential informant. Inspector Steve Prather spoke with Claussen who informed Prather that Easley was willing to sell Claussen an eighth of an ounce of cocaine for $300 if they met at Randy's Lounge in Mount Vernon, Illinois. The agents established a plan for surveillance and for the purchase of cocaine. Binnon further testified that Prather entered Randy's Lounge and remained for approximately one hour.

Prather testified about events he witnessed while in Randy's Lounge. Claussen was already in the lounge. He identified Easley for Prather and explained that Easley was waiting for another person to bring the cocaine. Approximately 20 minutes later, Lester Baine entered and left the bar. Easley then gestured for Claussen and Prather to follow him toward the pool table area. They stopped at the end of a hallway near a door leading to the men's restroom.

Prather recounted that Easley wished to speak only with Claussen. Prather walked to the end of the hallway leading from the restroom to the bar. He stated that the hallway was lighted and that he had an adequate view of the transaction despite not being able to hear the conversation. Prather saw Easley produce a clear plastic bag of white powder and hand it to Claussen. Easley and Claussen then walked toward Prather. Easley entered the bar area. Claussen and Prather entered the men's restroom. There, Prather took possession of the bag.

Claussen told Prather that Easley wanted Prather to give the money for the cocaine to Claussen. Prather refused. He instructed Claussen to bring Easley into the restroom. Claussen did so. Claussen testified that they discussed the quality and price of the cocaine. Easley told Prather that he required $300. Prather gave Easley $300 in cash and placed the cocaine in his own shirt pocket.

The trio exited the restroom and reentered the bar. Prather and Claussen lingered for approximately 20 minutes. They then left and met the other agents.

Wesley Burns, an investigator from defense counsel's office, testified that photographs he had taken of the restroom at Randy's Lounge accurately represented it. He further testified that the owner of Randy's Lounge told him that the restroom had not changed since March 29, 1991, the day of the transaction. In these photographs, defense counsel was posed in the restroom to emphasize the room's limited space. Burns's photographs were admitted in evidence.

Burns also testified about a diagram he prepared, representing the dimensions of the restroom and adjoining hallway of Randy's Lounge. He said that more than two adult men would have difficulty fitting into the restroom at the same time because of space limitations. He also testified about the restroom's dimensions and that it contained a toilet, a sink, a metal paper dispenser on the wall, and a trash can. He stated that the door to the restroom hits the sink when open, leaving even less free space.

The government cross-examined Burns. It used Burns's diagram and suggested that some of the photographs in evidence were "staged" because of defense counsel's presence in them. The alleged staging of the photographs also was mentioned in the government's summation.

On redirect of Burns, in an attempt to counter the government's suggestion that the photographs already in evidence were "staged", defense counsel attempted to have admitted additional photographs of the doorway to the restroom which did not show defense counsel. The court sustained an objection to the admission of the photographs on the ground that they were improper on redirect examination.

Easley testified that he possessed the cocaine but denied distributing it. He stated that prior to March 29, 1991 Claussen had asked him if he wanted to buy cocaine. Easley claimed that on March 29, while at Randy's Lounge, he and Claussen agreed to a deal in which Claussen would purchase a quarter ounce of cocaine for $450. Easley would put up all of the money for Claussen's purchase and then would receive half of the cocaine for $225. Easley testified that Claussen returned to Randy's Lounge with the quarter ounce of cocaine. Claussen was said to have instructed Easley to go to Lee Ann Morton's house where he would find scales among Claussen's possessions. Easley testified that he did this and that he divided the cocaine in half. He returned to Randy's Lounge with Claussen's half of the cocaine. Easley testified that he told Claussen to go to the restroom with him. There, Easley gave Claussen half of the cocaine in return for $300. Easley testified that Claussen returned to the bar and recovered $75 from Easley, in accordance with their agreement for Claussen to purchase the cocaine for $225.

In his summation, the government prosecutor stated:

"The evidence presented has proven beyond a reasonable doubt that the defendant, Lynn Easley, distributed cocaine on March 29, 1991. He possessed it, but he also distributed it. The defendant has come in. He's now admitting possession to you. He's plea bargaining with you, ladies and gentlemen. He's plea bargaining."

The court sustained defense counsel's objection and immediately instructed the jury to disregard the prosecutor's comments set forth above. The court later instructed the jury that it could find Easley guilty of the lesser offense of possession, rather than distribution, of cocaine.

The jury found Easley guilty of distribution. Later, he was sentenced as stated above.

On appeal, Easley claims that (1) the prosecutor's use of the term "plea bargaining" during summation deprived him of a fair trial; (2) the court committed reversible error in not allowing the additional photographs in evidence to rebut the government's charge of "staging;" and (3) the evidence was insufficient to support the jury's guilty verdict.

II.

(A) Denial of Fair Trial Claim

Easley claims that the prosecutor's reference to his admission of possession, but denial of distribution, as "plea bargaining" with the jury was not supported by the record. He contends that it was improper, predisposing the jury to avoid consideration of a lesser offense, and infecting the jury with a level of prejudice warranting a new trial.

The government counters that the court erred in sustaining the objection because Federal Rule of Evidence 410 bars only comment on plea negotiations between the government and a defendant. The prosecutor's comments, so the government's argument goes, were not made with reference to that type of negotiation. Moreover, the government contends that the statements did not constitute error, especially in light of the court's instruction to disregard them, the weight of evidence presented against Easley, and the fact that defense counsel did not move for a mistrial.

"We will not lightly overturn a criminal conviction 'on the basis of a prosecutor's comments standing alone.' " United States v. Neely, 980 F.2d 1074, 1083 (7th Cir.1992) (quoting United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1049, 84 L.Ed.2d 1 (1985)). A prosecutor's statements or conduct must be viewed in the context of the entire trial. Neely, supra, 980 F.2d at 1083. Easley would not be entitled to a new trial unless the prosecutor's references to a plea bargain were improper and prejudiced his right to a fair trial. Neely, supra, 980 F.2d at 1084 (citing United States v. Stillwell, 900 F.2d 1104, 1112 (7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990).

We analyze Easley's claim by considering two questions: (1) whether the prosecutor's comments were improper; and (2) if improper, whether, in light of the entire trial, they deprived Easley of a fair trial. Neely, supra, 980 F.2d at 1083-84. The Supreme Court has set forth these factors to be considered in answering these questions: (1) the nature and seriousness of the prosecutor's misconduct; (2) whether the comments were invited by impermissible conduct of defense counsel; (3) whether the trial court...