U.S. v. Farmer

• Decision Date: 09 September 2008
• Docket Number: No. 07-2505.,No. 07-3313.,No. 07-2507.,No. 07-2506.,07-2505.,07-2506.,07-2507.,07-3313.
• Citation: 543 F.3d 363
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas FARMER, James Ellis, Josiah Compton, and Gerald Howliet, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

543 F.3d 363

UNITED STATES of America, Plaintiff-Appellee, v. Douglas FARMER, James Ellis, Josiah Compton, and Gerald Howliet, Defendants-Appellants.

No. 07-2505.

No. 07-2506.

No. 07-2507.

No. 07-3313.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2008.

Decided September 9, 2008.

Donald S. Boyce (argued), Office of the United States Attorney, Fairview Heights, IL, Plaintiff-Appellee.

Daniel P. Reardon, Jr. (argued), Fabbri & Zotos, Paul E. Sims (argued), Stokely Group, St. Louis, MO, Hannah V. Garst (argued), Hannah V. Garst, Chicago, IL, David W. Dugan (argued), Dugan & Diaz, East Alton, IL, for Defendants-Appellants.

Before BAUER, RIPPLE and MANION, Circuit Judges.

BAUER, Circuit Judge.

This is a consolidated appeal from the convictions of four out of fourteen defendants for various offenses stemming from a drug distribution ring in the East St. Louis, Illinois area.

The government began investigating Defendants-Appellants Douglas Farmer, James Ellis, Josiah Compton, and Gerald Howliet in 2003 after learning of their involvement in the distribution of crack, powder cocaine, and marijuana. The investigation included the review of police reports, telephone records, and pen registers, as well as law enforcement surveillance, wire communications interception, and intelligence provided by confidential informants. Through the execution of search warrants, agents eventually seized more than 11.6 kilograms of powder cocaine, 536 grams of crack cocaine, 6.1 grams of heroin, 14.8 kilograms of marijuana, $120,640.00 in U.S. currency, and numerous firearms. A jury convicted Defendants-Appellants on various drug-related charges, which they now appeal. We address each Defendant-Appellant's respective arguments in turn.

I. Douglas Farmer

On November 18, 2004, Farmer was indicted for conspiracy to distribute and possess with the intent to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. § 2; thirteen others were named in the indictment on conspiracy and/or various other drug-related offenses. The last defendant was arraigned on January 13, 2005.

On December 1, 2004, one of the co-defendants filed a motion to suppress. While that was pending, another motion was filed, then another, then another; in fact, a series of overlapping motions continued pending throughout the duration of the case.

On February 22, 2007, Farmer filed a motion to dismiss the indictment, alleging a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Farmer acknowledged that "excludable days of delay ha[d] occurred," but argued that "the delay that has been experienced herein exceeds any permissible exception visualized by the Speedy Trial Act." The district court denied Farmer's motion, finding that seventy days of non-excludable time had not passed between the last co-defendant's arraignment and Farmer's trial because of the filing of several motions by Farmer and his co-defendants. Farmer re-asserts the same argument on appeal, and like the district court, we reject it.

We review the district court's denial of Farmer's Speedy Trial motion de novo. See United States v. Parker, 508 F.3d 434, 438 (7th Cir.2007) (citing United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.1995)). The Speedy Trial Act provides that no more than seventy days may elapse between a defendant's initial appearance in court and the commencement of trial. 18 U.S.C. § 3161(c)(1); Parker, 508 F.3d at 438. When more than one defendant is charged in an indictment, the Speedy Trial clock begins to run on the date of the last co-defendant's initial appearance, which is usually arraignment. Parker, 508 F.3d at 439; United States v. Garrett, 45 F.3d 1135, 1138 (7th Cir.1995). In calculating the Speedy Trial clock, the Act specifically excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). Furthermore, the Act excludes any reasonable time lapse occurring "when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161(h)(7); see Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (noting that in multi-defendant cases, the seventy-day clock does not begin until the last co-defendant has been arraigned).

The excludable delay of Farmer's co-defendants is ascribed to him, since Farmer was not severed, nor did he seek severance, from those co-defendants for trial. See United States v. Baker, 40 F.3d 154, 159 (7th Cir.1994). As Farmer acknowledges, overlapping motions filed by himself and his co-defendants remained before the district court throughout the time between his last codefendant's arraignment on January 13, 2005, and the start of his trial on March 6, 2007. Farmer properly concedes that seventy days of non-excludable time did not lapse. So despite over two years passing between Farmer's indictment and the commencement of his trial, no Speedy Trial Act violation occurred. (In fact, although no mention was made of it in this appeal, on February 21, 2005, Farmer filed a Waiver of Speedy Trial.) We disagree with Farmer that such a delay "makes a mockery of [the Act's] statutory protection"; to the contrary, we find the delay necessary to ensure that the defendants's pre-trial motions were adequately considered as to minimize the effect of any infringement on their rights resulting from an improper indictment, illegally seized evidence, or any other impropriety.¹ Accordingly, we affirm Farmer's conviction.

II. James Ellis

Ellis was convicted of conspiracy to distribute and to possess with the intent to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. § 2. At trial, the government played recorded telephone calls obtained through court-authorized wire taps. The government introduced these tapes through Drug Enforcement Agency (DEA) Special Agent Michael Rehg. Agent Rehg testified as a fact witness regarding the investigation's progress and events, and as an expert witness to assist the jury in understanding the coded drug language contained in the recorded conversations.

Agent Rehg testified that he had been a DEA agent for eight years, and was a Deputy U.S. Marshal for nine years before that (three years of which he was assigned to the DEA). He further testified that he was the lead case agent in this case and that he had overseen the process of obtaining the court-authorized wire taps. Agent Rehg also stated that he had participated in hundreds of drug cases, he had listened to thousands of calls in this case, and his experience gave him knowledge of the meanings of certain coded drug language.

Ellis repeatedly objected to Agent Rehg's testimony, claiming that Agent Rehg was not a qualified expert and that he was unfairly prejudiced by the district court's decision to allow Agent Rehg to testify both as a fact and expert witness. The district court allowed Agent Rehg to testify in both capacities, but gave the jury cautionary instructions regarding expert testimony.

The jury found Ellis guilty of the conspiracy charged, and the United States Probation Department prepared a Pre-Sentence Report (PSR). The PSR determined that Ellis had a total offense level of thirty-eight and a criminal history category of IV, resulting in an advisory Guidelines range of 324 to 405 months' imprisonment. This calculation included a two-level offense increase based on Ellis's possession of a firearm during the commission of the offense, pursuant to U.S.S.G. § 2D1.1(b)(1). The evidence of Ellis's possession of a firearm came from the proffer of a co-conspirator, Elvin Pawnell, who stated that he had been with Ellis and Farmer on fifteen to twenty occasions in 2005 when they were providing him with cocaine. Pawnell said that Ellis carried a .45-caliber handgun during these meetings; once, Ellis showed him the gun, and on other occasions, Pawnell saw the gun in Ellis's waistband.

Ellis filed written objections to the two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1), arguing that his possession of a firearm had not been proven beyond a reasonable doubt, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court rejected Ellis's argument and applied the two-level enhancement. The district court subsequently sentenced Ellis to 288 months' imprisonment, which was below his advisory Guidelines range.

On appeal, Ellis contends that the district court erred in allowing Agent Rehg to testify as both a fact and expert witness. Specifically, Ellis claims that the district court failed to properly apply Federal Rule of Evidence 702 because it did not conduct a hearing to consider Agent Rehg's qualifications. Ellis further argues that allowing Agent Rehg to testify in both capacities unfairly prejudiced him. In addition, Ellis argues that the district court improperly applied the two-level enhancement.

We review the district court's decision to admit expert testimony for an abuse of discretion. United States v. Goodwin, 496 F.3d 636, 641 (7th Cir.2007) (citing United States v. Ceballos, 302 F.3d 679, 686 (7th Cir.2002)). Although Ellis appeals under Rule 702, neither Ellis nor the government specifically requested that the district court evaluate Agent Rehg's qualifications as an expert under Rule 702. See United States v. Moore, 521 F.3d 681, 685 (7th Cir.2008) (noting that when neither party specifically asks the district court to engage in the analysis under Rule 702, the district court is not required to do so and does not err in admitting the testimony). Thus, the district court did not err by not inquiring further into Agent Rehg's qualifications.

Regardless, Agent Rehg was undoubtedly...