U.S.A. v. Cavender et al, C-M

• Decision Date: 03 October 2000
• Docket Number: 98-3841,00-1047,98-3640,Nos. 98-3449,98-3639,C-M,s. 98-3449
• Citation: 228 F.3d 792
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Desmond Cavender, a/k/a Grip, Demetrius Campbell, a/k/a Ill, Solomon Montague, a/k/a &#34;C,&#34; a/k/aan, a/k/a Chinaman, and Milton Buchanan, a/k/a Romie, a/k/a Romeo, Defendants-Appellants. <A HREF="#fr1-*" name="fn1-*">*
• Court: U.S. Court of Appeals — Seventh Circuit

Page 792

228 F.3d 792 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Desmond Cavender, a/k/a Grip, Demetrius Campbell, a/k/a Ill, Solomon Montague, a/k/a "C," a/k/a C-Man, a/k/a Chinaman, and Milton Buchanan, a/k/a Romie, a/k/a Romeo, Defendants-Appellants.

Nos. 98-3449, 98-3639, 98-3640, 98-3841, 00-1047^*

In the United States Court of Appeals For the Seventh Circuit

Argued November 1, 1999

Decided October 3, 2000

Appeals from the United States District Court for the Northern District of Illinois, Western Division. No. 97 CR 50026--Philip G. Reinhard, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Easterbrook, Ripple, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

This case arose from a major cocaine bust in Rockford, Illinois. Appellants Milton Buchanan, Solomon Montague, Desmond Cavender, and Demetrius Campbell were, along with several others, indicted in December of 1997 for their role in the conspiracy. Cavender and Buchanan pleaded guilty to particular charges, while Montague and Campbell went to trial and were convicted by the jury. All four have appealed, raising a variety of points related to their convictions and sentences. One serious evidentiary error has persuaded us that we must reverse Campbell's conviction; we find the remainder of the arguments raised either without merit, harmless, or waived, and we therefore affirm the judgments entered against Buchanan, Montague, and Cavender.

I

The defendants were involved in a sophisticated business arrangement for the sale of crack cocaine (more formally known to the law as cocaine base) in the Rockford area. Along with Bennie Griffith, who later turned state's evidence, they were the key players. According to the grand jury's indictment, the conspiracy began as early as June 1994 and continued through July 1997, and it involved the distribution of multiple kilograms of cocaine base. Some participants purchased large quantities of the drug, some cut and bagged it for distribution, and others sold it from designated "spots" run by the conspirators.

At Campbell and Montague's trial, the government presented Griffith as its star witness. Griffith explained that he began selling drugs with Cavender and Buchanan in late 1994, and that Montague joined the group in 1996. Griffith testified that they all, at various points in time, purchased large amounts of cocaine, and hired workers to bag and sell it. He said that he sold crack to Campbell beginning in 1996, and that Campbell had told him that he was reselling the drugs on the west side. Griffith identified, through photos, several spots that the conspiracy controlled and used as sales locations, including various residences and the area around the Jane Addams housing project. The government also introduced 118 tapes of conversations into evidence. The recorded conversations were all in code and street slang, but Griffith deciphered them for the jury (which otherwise would have had little to no idea of what the people were talking about).

Two other cooperating government witnesses who were former members of the conspiracy also testified at trial. The first, James Perkins, said that he engaged in several drug transactions with Montague and Buchanan. Noah Miller, the other, said that he worked mainly with Montague dealing drugs, but he knew that others were working with Montague. Miller offered his own explanations of the recorded conversations for 11 of the 118 tapes. His definitions were in many instances different from those Griffith had used- -a discrepancy Griffith explained by saying that the code he used in conversing with the conspirators was his special language, not general street slang. Miller identified his own voice in all 11 tapes, and identified Montague's voice in some of them.

The remaining testimony came from various FBI and police officers, who reported that they had seen Montague, Buchanan, Cavender, and sometimes Campbell in vehicles together at different times driving to and from what Griffith had described as the conspiracy's drug spots. Three Rockford police officers also testified that they found some bags of crack in Montague's pants one evening near the Jane Addams housing project.

The jury convicted Campbell on Count 1 (conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. sec. 846), and Montague on Counts 1 and 16 (possession of cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1)). Campbell received a life sentence, to be followed by 10 years of supervised release, and Montague received a life sentence along with a concurrent 30 years of imprisonment on Count 16, also to be followed by 10 years of supervised release. Cavender, who pleaded guilty to Count 1, was sentenced to 312 months' imprisonment followed by eight years of supervised release. Buchanan's guilty plea covered both Count 1 (conspiracy), Counts 8, 9, 11, and 15 (distribution of cocaine base), and Count 17 (possession with intent to distribute cocaine base). His sentence was for 420 months' imprisonment followed by eight years of supervised release.

II

A. Impeachment of Griffith: Evidentiary rulings

Griffith, as we have already noted, was the linchpin of the government's case at the trial. Naturally, this meant that Campbell and Montague had a strong interest in undermining him in front of the jury, and the government had an equally strong interest in demonstrating his credibility. Toward the latter end, on direct examination Griffith was asked about his drug use before he left Chicago for Rockford and joined the conspiracy. He insisted that he had neither used nor sold any drugs during that time period

Q: [Government's attorney]: And when you were in Chicago did you sell drugs?

A: No.

Q: Never?

A: No.

Q: Did you use drugs?

A: No.

On cross examination, he stuck to that story and added that he had not dealt in drugs while he was living in Chicago, in the following exchange

Q: [Montague's attorney]: Bennie, you testified earlier you lived in Chicago, right?

A: That is correct.

Q: But in Chicago you didn't deal any drugs, right?

A: That is correct.

At least with respect to Griffith's testimony on direct examination about use (rather than dealing), it is almost certain that he was lying. In fact, Griffith had been convicted of a felony in Chicago in 1994 for possession of a controlled substance. After the exchange we have just noted, Montague's attorney attempted to impeach Griffith by introducing evidence of that 1994 Chicago drug possession conviction. The district court sustained the government's objection to the evidence, and it was excluded from the trial. Both Montague and Campbell objected.

On appeal, Campbell and Montague argue that this ruling was in error. Montague argued that it violated his Sixth Amendment confrontation rights, and both claim that it misapplied Federal Rules of Evidence 609(a) and 403. Normally, we review a restriction on cross-examination only for abuse of discretion. See United States v. Graffia, 120 F.3d 706, 712 (7th Cir. 1997). The exception arises when the restriction implicates the criminal defendant's Sixth Amendment right to confront witnesses against her, in which case the standard of review is de novo. See United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995).

Under the Sixth Amendment, a criminal defendant has the right to confront the witnesses against her. U.S. Const. amend. VI. The exposure of a witness's motivations to lie is a proper and important function of the constitutionally protected right of cross-examination. See Sasson, 62 F.3d at 882. The right to cross-examine adverse witnesses, however, is not absolute. See id. The Confrontation Clause guarantees only an opportunity to conduct a thorough and effective cross-examination during which the defense has a chance to discredit the witness, "not cross- examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). The district court retains wide latitude to impose reasonable limits on the scope and extent of cross-examination based on concerns about things like harassment, prejudice, confusion of the issues, or interrogation that is repetitive or only marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

In this case, the district court's decision not to allow the defense to impeach Griffith did not rise to the level of a Sixth Amendment violation. The defense was allowed to put into evidence the fact that Griffith had a conviction of some crime on his record, and it was allowed to explain that Griffith was profiting as a result of his testimony by getting a lower sentence under his plea agreement. Because the defense was able to question Griffith about some of his potential biases, and thus to introduce the idea that Griffith might not be a reliable witness, this situation differs from that in Van Arsdall, where the defense was completely foreclosed from presenting any evidence of a witness's bias. See id.

This does not mean, however, that the exclusion of the felony drug possession conviction was inconsequential. To the contrary, Rule 609(a)(1) of the Federal Rules of Evidence states that "evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403," if it was punishable by imprisonment in excess of one year. (Emphasis added.) Rule 403 codifies the court's power to exclude otherwise relevant evidence whose probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Thus, unless Rule 403 justified its exclusion, the evidence of Griffith's former conviction should have been...