U.S. v. Beck, 94-3046
| Decision Date | 26 October 1995 |
| Docket Number | No. 94-3046,94-3046 |
| Citation | 69 F.3d 540 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. Ryan BECK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, ESCHBACH and ROVNER, Circuit Judges.
On December 6, 1993, Ryan Beck was arrested for possessing a gun and 8.1 grams of cocaine base in six individually wrapped smaller bags. A jury subsequently convicted Beck of one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 841(b)(1)(B), one count of possession of a firearm in connection with drug trafficking in violation of 18 U.S.C. Sec. 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). The district court sentenced him to 150 months imprisonment on counts one and three to run concurrently, 60 months imprisonment on count two to run consecutively, four years supervised release on count one, three years supervised release on counts two and three to run concurrently, and ordered Beck to pay a special assessment of $150.00. On direct appeal, Beck challenges the admission of certain testimonies, contends that his trial counsel was ineffective, and argues that the district court erred in sentencing him disproportionately for trafficking cocaine base rather than cocaine. We affirm.
A. Expert Testimony regarding the cocaine bse being packaged for resale
Beck first argues the district court erred by permitting FBI Agent David Hirtz to testify whether the cocaine base recovered from Beck was packaged for resale. The government asked:
Beck contends that the government's insertion of the clause, "and absent and not and completely avoiding any, if any, specific knowledge of the defendant," allowed the jury impermissibly to infer that Hirtz was commenting on Beck's mental state in violation of Fed.R.Evid. 704(b). Because Beck did not object to these questions, we will reverse only for plain error. United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1778-79 (1993).
Rule 704(b) limits "expert testimony on medical or psychological analysis of a defendant's mental processes, but not law enforcement testimony that does not depend on such analysis." United States v. Willis, 61 F.3d 526, 533 (7th Cir.1995).
[W]hen a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of the defendant's mental processes.
United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir.1994).
Beck argues that the negative used in the last question implied that Hirtz was allowed to base his opinion on special knowledge of Beck, and thus confused the jury. However, in reading the question, the more logical inference is that the prosecution asked Hirtz to base his opinion on his general knowledge and not on any special knowledge of Beck's intent. Hirtz testified as an expert on drug trade practices. Beck did not challenge his expertise. The record does not suggest that Hirtz had any special knowledge of Beck outside of the arrest reports. Further, the prosecution's question and Hirtz's answer avoided any express reference to Beck's "intent." Lipscomb, 14 F.3d at 1242-43 ().
Beck next argues that prejudicial statements made by government witnesses during their testimonies denied him a fair trial. However, Beck did not object to almost all of the complained testimonies, and fails to cite legal authority exemplifying how admitting most of these testimonies were plain error. See United States v. Schimmel, 950 F.2d 432, 434 n. 1 (7th Cir, 1991) (). Beck's argument seems to contend that the testimonies were impermissible under Fed.R.Evid. 402 (relevance) or Fed.R.Evid. 403 (). We generally defer questions regarding the admissibility of testimony to trial judges who are better positioned to assess the likely value and probable effects of the testimony. United States v. Brown, 34 F.3d 569, 574 (7th Cir, 1994), cert. denied, 115 S.Ct. 1136 (1995).
Beck first suggests that testimonies by Officer Eddlemon that the Warner Homes area was a "hot spot" of violent activity and by Agent Hirtz that linked gang membership to drug dealing was prejudicial and denied Beck a fair trial. However, these testimonies were invited by the defense during cross examination, and therefore admitting the testimony did not prejudice Beck. United States v. Johnson-Dix, 54 F.3d 1295, 1304 (7th Cir, 1995).
Beck next argues that the vivid analogies by Officer Mercer regarding the high demand for crack cocaine and by Agent Hirtz regarding the addictive effects of crack cocaine constituted prejudice. Beck does not argue that these analogies allowed the jury to infer false notions. Moreover, graphic analogies alone do not constitute plain error....
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