U.S. v. Breland, 03-1691.

• Decision Date: 30 January 2004
• Docket Number: No. 03-1691.,No. 03-1692.,No. 03-2196.,03-1691.,03-1692.,03-2196.
• Citation: 356 F.3d 787
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter BRELAND, Katrel Thomas, and Andre Vaughn, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

356 F.3d 787

UNITED STATES of America, Plaintiff-Appellee, v. Walter BRELAND, Katrel Thomas, and Andre Vaughn, Defendants-Appellants.

No. 03-1691.

No. 03-1692.

No. 03-2196.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2003.

Decided January 30, 2004.

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Bradley Blackington (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Barbara Coyle Williams (argued), Olsen, Labhart, White & Hambidge, Evansville, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Walter Breland, Katrel Thomas, and Andre Vaughn appeal convictions stemming from their drug distribution activities. Breland challenges the introduction of testimony containing out-of-court statements and the admission of the drugs, money, and weapon seized during his arrest. Thomas and Vaughn challenge the introduction and use of wiretap evidence and the district court's sentencing determination regarding the quantity of drugs for relevant conduct. Thomas also challenges the district court's use of one of his prior convictions at sentencing. Because we find no error with respect to any of defendants' arguments, we affirm.

ANALYSIS

A. Walter Breland

In October 2001, Evansville police officers were conducting surveillance of a residence where they suspected drug dealing was taking place. In the early hours of October 31, 2001, one officer, Philip Luecke, stopped and questioned Trent Ferguson, a known drug trafficker, and found over $1,000 on his person. When Officer Luecke interviewed him, Ferguson stated that a "black male with a bald head" was selling cocaine and marijuana from the same residence that the officers had under surveillance. When Officer Luecke and two other officers spotted Walter Breland, a black male with a bald head, standing in front of the residence, Officer Luecke said to him, "Police, I want to talk to you." Breland immediately ran from the porch area of the residence, across the street and between some houses, where he hid behind a large bush. When Officer Luecke began to pursue Breland, he rose, tossed a plastic bag containing cocaine over a fence, and charged Officer Luecke brandishing a firearm. Officer Luecke struck Breland with a flashlight, which caused Breland to drop the gun, but Breland continued to run from the police. He was caught and arrested minutes later by other officers who conducted a search incident to the arrest and found $2,000.

Breland was charged with conspiracy to possess with intent to distribute and possession with the intent to distribute, carrying a firearm during and in furtherance of a drug trafficking offense, and being a felon in possession of a firearm. He was convicted on all counts except the conspiracy charge. On appeal, he challenges the admission of the evidence seized during his arrest and the introduction of Officer Luecke's testimony about Ferguson's statement.

1. Suppression of the Arrest Evidence

Breland appeals the district court's admission of the drugs, money, and firearm seized at the time of his arrest. He argues that the evidence should have been suppressed because the police seized him within the curtilage of his home and did so without reasonable suspicion or probable cause. When reviewing appeals from denials of motions to suppress, we review legal issues de novo and questions of fact for clear error. United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir.2000). We disagree with Breland's assertions and find his argument to be without merit.

First, when Officer Luecke initially addressed Breland while Breland was on or near his front porch by saying "Police, I want to talk to you," Breland was not seized; if anything, Officer Luecke was attempting to engage in a consensual encounter (remember, Breland immediately started to run). See United States v. Mendenhall, 446 U.S. 544, 552-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Felix-Felix, 275 F.3d 627, 632 (7th Cir.2001). Even if Officer Luecke's actions could be considered an attempted Terry stop,¹ because Breland matched Ferguson's description of a person who was allegedly dealing drugs from the residence where Breland was seen by police, the officers had reasonable suspicion to believe Breland was engaged in criminal activity and were entitled to conduct a Terry stop to briefly investigate. See Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Felix-Felix, 275 F.3d at 634. Once Breland fled from the police, the officers undoubtedly had reasonable suspicion to pursue Breland in order to conduct a Terry stop. Wardlow, 528 U.S. at 124, 120 S.Ct. 673. Finally, after Breland threw the bag of drugs over the fence, and charged Officer Luecke with a firearm in his hand, the police had probable cause to arrest him and search his person. See United States v. Feliciano, 45 F.3d 1070, 1072-73 (7th Cir.1995). Therefore, the district court did not err in denying Breland's motion to suppress the evidence seized at his arrest.

2. Admission of Out-of-Court Statement

Breland also appeals the introduction of Officer Luecke's testimony concerning his conversation with Ferguson, in which Officer Luecke relayed that Ferguson told him about a "black male with a bald head" dealing drugs from the residence under surveillance. Breland argues that this testimony was inadmissible hearsay that should have been excluded at trial, and, alternatively, claims error in the district court's failure to give a limiting instruction regarding the jury's permissible use of the statement.

"Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted." United States v. Linwood, 142 F.3d 418, 424-25 (7th Cir.1998) (citing Fed.R.Evid. 801(c)). "Whether a statement is hearsay and, in turn, inadmissible, will most often hinge on the purpose for which it is offered." Id. "`If ... an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply.'" Lee v. McCaughtry, 892 F.2d 1318, 1324 (7th Cir. 1990) (emphasis omitted) (quoting 6 J.H. WIGMORE, EVIDENCE § 1766, at 250 (1976)). We review district court rulings on hearsay objections for an abuse of discretion. United States v. Amerson, 185 F.3d 676, 681 (7th Cir.1999).

This court has repeatedly upheld the introduction of out-of-court statements when offered as background information to put an officer's actions in context because they are not being offered for the truth of the matter asserted. See United States v. Linwood, 142 F.3d at 424-25; United States v. Sanchez, 32 F.3d 1002, 1005 (7th Cir.1994); United States v. Martinez, 939 F.2d 412, 415 (7th Cir.1991). Here, Officer Luecke's testimony about Ferguson's statement was not offered to prove the truth of the matter asserted — that a "black male with a bald head ... [was] selling cocaine and marijuana" from the relevant residence — but rather was offered to explain why Officer Luecke approached Breland since he was standing outside of the residence and matched Ferguson's description. "The case law of this Circuit leaves no doubt that this is a nonhearsay purpose." Linwood, 142 F.3d at 425 (citing Sanchez, 32 F.3d at 1005).

With respect to Breland's challenge regarding the necessity of a limiting instruction, Breland's defense counsel never actually requested an instruction at trial, nor did she submit a proposed instruction on this issue or otherwise object to the district court's final instructions.² Therefore, plain error review applies. United States v. Irorere, 228 F.3d 816, 825 (7th Cir.2000); Linwood, 142 F.3d at 422. Because there was substantial evidence to support Breland's conviction for possession with intent to distribute — namely, the quantity of drugs seized at his arrest³ coupled with the amount of money found on his person — the district court's failure to provide a limiting instruction regarding the jury's permissible use of Ferguson's statement did not amount to plain error.⁴

B. Katrel Thomas and Andre Vaughn

Around the same time as the Evansville Police were conducting surveillance on Breland's residence, the Drug Enforcement Agency (DEA) became interested in a certain cellular telephone number that was subscribed to by Breland. On October 26, 2001, the district court granted the government's application to conduct wiretap surveillance of communications involving that phone number. The wiretap surveillance ultimately revealed evidence which incriminated Katrel Thomas and Andre Vaughn. They were charged and convicted of conspiracy to possess with intent to distribute and possession with the intent to distribute. Before the district court and now on appeal, defendants challenge the introduction and use of the wiretap evidence and the district court's sentencing determination regarding the quantity of drugs for relevant conduct. Thomas also challenges the district court's use at sentencing of one of his prior convictions.

1. Suppression of the Wiretap Surveillance Evidence

In approving the government's application to conduct wiretap surveillance, the district court exercised its discretion to require the government to submit progress reports to the court detailing its progress and need for further surveillance.⁵ The district court's order required the government to submit progress reports "on or about the tenth, twentieth, and thirtieth days following the Date of this Order ... showing what progress has been made toward achievement of the authorized objectives and the need for continued interception." The government's wiretap surveillance ran from October 26 until November 14, with the last recorded phone calls on November 10. The government filed its tenth day progress report on November 5, the tenth day after ...