U.S. v. Bruce

• Decision Date: 18 December 2008
• Docket Number: No. 07-3675.,07-3675.
• Citation: 550 F.3d 668
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin BRUCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

550 F.3d 668

UNITED STATES of America, Plaintiff-Appellee, v. Calvin BRUCE, Defendant-Appellant.

No. 07-3675.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2008.

Decided December 18, 2008.

Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Brian J. Murray (argued), Jones Day, Chicago, IL, Lauren Robel, Indiana University, Bloomington, IN, for Defendant-Appellant.

Before POSNER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

Calvin Bruce was charged by indictment with one count of possession with intent to distribute fifty grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). He entered a plea of not guilty, but was convicted after a jury trial. The district court sentenced him to 360 months' imprisonment followed by 10 years of supervised release. Mr. Bruce appeals both his conviction and his sentence. For the reasons set forth in this opinion, we affirm Mr. Bruce's conviction and remand this case for resentencing in light of the Supreme Court's decision in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

I BACKGROUND

A. Facts

On the afternoon of March 28, 2007, Calvin Bruce was a passenger in a car that was stopped by officers of the Dane County (Wisconsin) Narcotics and Gang Task Force. During the stop, the police discovered an outstanding warrant for Mr. Bruce's arrest and took him into custody. Mr. Bruce used his cell phone to call his girlfriend, Endia Matthews, who drove to the scene of the traffic stop. After Matthews arrived, the police learned that she was on probation and had driven to the scene on a revoked driver's license. The police did not arrest her, but asked for consent to search her house. Matthews consented. The police obtained the keys to the house from Mr. Bruce, who was then taken to a police station for questioning.

Madison Police Detective Dorothy Rietzler, Officer Denise Markham and Officer Jason Baumgart went to Matthews' house to conduct the search and to interview Matthews. At the house, they found $2,580 in cash in a jacket belonging to Mr. Bruce. They also found a bag containing crack cocaine and pepper in the engine compartment of a van parked in the garage. Other drug paraphernalia were found throughout the house. Matthews denied any knowledge about the drugs or the money.

After completing the search, the police officers went to the station to interview Mr. Bruce. Detective Rietzler led the interview, portions of which also were attended by Officers Markham and Baumgart. Before the interview began, Detective Rietzler turned on an audio recorder. Mr. Bruce initially denied any knowledge about the drugs and the money. Eventually, however, he admitted that the money belonged to him and also admitted that there were "about two ounces" of crack in the van. R.75 at 26. Detective Rietzler offered Mr. Bruce "a chance to help [him]self" by working with police to incriminate "the big fish"—that is, other drug dealers who sold larger amounts of drugs. R.75 at 20, 21. Mr. Bruce agreed to assist the police and began by telling them the name and location of one of the dealers from whom he bought drugs. Detective Rietzler then turned off the audio recorder but continued the interview for twenty more minutes.

Mr. Bruce was released from custody after the interview. He ultimately failed to make good on his promise of cooperation, however, and, in April 2007, he was indicted in the United States District Court for the Western District of Wisconsin on one count of possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1).

B. Trial

Mr. Bruce's jury trial was held in August 2007. At a pretrial hearing, Mr. Bruce alleged that Detective Rietzler had violated Wisconsin law by continuing to interrogate him after turning off the audio recorder. Wisconsin Statute § 968.073 provides, in relevant part: "It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless ... good cause is shown." Wis. Stat. § 968.073(2). Mr. Bruce requested a jury instruction stating that the law requires recording of interrogations by police and instructing the jury that "unrecorded oral statements made by a defendant out of court to a law enforcement officer should be viewed with caution." R.60 at 2. The district court declined to give the proposed instruction because it agreed with the prosecution that any violation of state law by the police was irrelevant to Mr. Bruce's guilt or innocence under federal law.

At trial, the Government presented the recovered money, the crack cocaine found in the van, the drug paraphernalia found in the house and garage, and mail addressed to Mr. Bruce at Matthews' address. Detective Rietzler, Officer Markham and Officer Baumgart testified about the recorded part of the interview, portions of which were played for the jury. Detective Rietzler and Officer Markham testified that, after the recorder was turned off, Mr. Bruce continued to be relaxed and cooperative. They also testified that Mr. Bruce dated and initialed a photo of another dealer from whom he had purchased crack in the past. This photo was admitted as evidence.

Mr. Bruce's counsel was permitted to cross-examine the officers about the content of the interview and the circumstances surrounding it, including the fact that Detective Rietzler had stopped the recording. His counsel was not, however, allowed to mention the Wisconsin statute regarding the recording of custodial interrogations.

At the end of the trial, the court gave a model jury instruction instead of Mr. Bruce's proposed instruction on the recording of interrogations. The jury convicted Mr. Bruce on the sole count of the indictment.

C. Sentencing

Mr. Bruce was sentenced on October 31, 2007. The court determined that Mr. Bruce's past criminal record qualified him as a career offender under Section 4B1.1 of the United States Sentencing Guidelines. Accordingly, the court calculated his base offense level under both the drug quantity table Guideline, § 2D1.1(c), and the career offender Guideline, § 4B1.1(b). The court found that Mr. Bruce's offense, including relevant conduct, involved 3.28 kilograms of crack cocaine, resulting in a base offense level of 38 under Section 2D1.1(c). Mr. Bruce's base offense level under Section 4B1.1(b) was 37 because the maximum statutory sentence for his offense was life in prison. Because the drug quantity table's offense level of 38 was the higher of the two, the court used this latter offense level to determine Mr. Bruce's sentencing range under the Guidelines. The court also determined that Mr. Bruce's prior convictions placed him in Criminal History Category VI. The Guidelines sentencing range for level 38 in Category VI is 360 months to life.

Mr. Bruce's counsel pointed out to the court that amended Guidelines were expected to take effect the next day (November 1, 2007) that would reduce the offense level for someone in Mr. Bruce's position from 38 to 36. Counsel acknowledged, however, that this reduction would have no effect on Mr. Bruce's sentencing range because he then would be sentenced at the career offender offense level of 37, which also prescribes a range of 360 months to life for offenders in Criminal History Category VI. The court sentenced Mr. Bruce to 360 months' imprisonment, to be followed by 10 years of supervised release.

The next day, the 2007 Sentencing Guidelines took effect. The new Guidelines reduced the Section 2D1.1 offense level by two levels for all crack offenses. The United States Sentencing Commission subsequently decided that this reduction should be retroactive.

Mr. Bruce timely appealed his conviction and sentence.

II DISCUSSION

Mr. Bruce submits that the district court's exclusion of any mention of the Wisconsin recording statute violated his right to a fair trial. He also contends that the Supreme Court's decision in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), entitles him to a remand for resentencing. We consider these arguments in turn.

A. Jury Instruction

Mr. Bruce's first basis for appeal is that he was deprived of the right to a fair trial by the district court's refusal to give his proposed jury instruction, which stated that the police violated Wisconsin law by failing to record the entirety of his interrogation.¹ The district court instead gave a model jury instruction that directed the jurors to consider all of the evidence when weighing Mr. Bruce's statements to the police.² Mr. Bruce submits that the court's refusal to give his instruction hindered his ability to present his theory of defense, which was lack of proof. We review de novo a district court's decision not to give a requested jury instruction. United States v. Prude, 489 F.3d 873, 882 (7th Cir.2007).

Mr. Bruce contends that he was entitled to have his proposed instruction read to the jury because it satisfied the four requirements that we have set forth for instructions on a defendant's theory of defense. We have said:

A defendant is entitled to a jury instruction as to his or her particular theory of defense provided: (1) the instruction represents an accurate statement of the law; (2) the instruction reflects a theory that is supported by the evidence; (3) the instruction reflects a theory which is not already part of the charge; and (4) the failure to include the instruction would deny the appellant a fair trial.

United States v. Eberhart, 467 F.3d 659, 666 (7th Cir.2006) (quoting United States v. Buchmeier, 255 F.3d 415, 426 (7th Cir. 2001)). Mr. Bruce submits that his proposed instruction satisfied each of these requirements and that therefore it was error for the court to refuse to give it.

Mr. Bruce's theory of...