U.S. v. Felton
| Decision Date | 21 August 1990 |
| Docket Number | No. 89-2783,89-2783 |
| Citation | 908 F.2d 186 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fred FELTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ava M. Gould, Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Gary J. Ravitz, Chicago, Ill., for defendant-appellant.
Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
Fred Felton's defense at trial was that he didn't do it, but if he did do it, the devil (disguised as an undercover DEA agent) made him do it. The jury, however, chose a third option and convicted him of one count of conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846, and one count of attempting to possess heroin with intent to distribute in violation of 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1) and 846. Felton appeals his conviction, claiming that the district court erroneously admitted certain hearsay testimony which deprived him of a fair trial. Because the admission of the hearsay statement was not plain error, we affirm.
In early October 1988, the Drug Enforcement Agency ("the DEA") leased an apartment in Presidential Towers, a residential complex located just west of downtown Chicago, and furnished it with electronic surveillance equipment. Agent Sherod Jones posed as a drug dealer and occupant of the premises. Agents William Maloney and John Riley monitored the surveillance equipment. Alvin Cargill, Felton's long-time friend and current roommate, was Maloney's confidential informant.
On October 12, 1988, informant Cargill and defendant Felton arrived at Jones' apartment. 1 While Cargill was on the telephone, Jones asked Felton whether he brought "the thing" with him. Felton replied no, and then asked Cargill to "run it down" to Jones--to tell him what was going on. Cargill said that "the Karachi heroin would cost six." Felton asked if Jones had "dealt Karachi" before and later added that "Karachi really sells." When Jones expressed concern about their late arrival without the heroin, Felton replied that they were delayed because he was not able to "get with his people." When Jones asked how long it would take to get the heroin, Cargill said 45 minutes. Felton corrected him, saying that they would need an hour but that it would be a "straight move." Jones went to the bedroom, returned with $6000, and handed it to Felton, who then left with Cargill.
Cargill and Felton drove to Felton's house. Twenty minutes later, they left and drove to the Blue Room Lounge at 79th Street and King Drive. From there, they went across the street and into a small business. Two other men exited with them: Kenji Stewart (one of the other defendants indicted with Felton) and an unidentified man. After a brief conversation, Cargill and Felton returned to their car and followed Stewart and his companion to 61st Street and King Drive. Cargill and Felton got out of their car, spoke briefly with Stewart and the unidentified man and left. They returned to Presidential Towers. Felton stayed in the car and Cargill went to return the money to Jones. Jones testified that Cargill told him the deal did not go down because "surveillance was made."
The next day, Cargill and Stewart went to see Jones, sold him cocaine and arranged for the next deal. A few days later, another co-defendant, Byron Drew, delivered cocaine to Jones.
The next transaction occurred on November 1, 1988. Jones drove to Felton's house where he was to meet Eddie Bankroll, the targeted ringleader of the drug distribution conspiracy. Bankroll and Cargill emerged from Felton's house, walked over to Jones' car, delivered 26.39 grams of cut heroin and returned to the house. Although Jones did not observe Felton during this transaction, two other agents placed him at the house immediately before and after the sale.
Jones later bought more cocaine from Stewart and another co-defendant, Carl Taylor.
Subsequently, a federal grand jury indicted Felton, Stewart, Drew and Taylor for the above narcotics activity. Felton was charged in two counts of the six count indictment, conspiracy to attempt to distribute cocaine and heroin, in violation of 21 U.S.C. Sec. 846, and attempt to possess heroin with intent to distribute, in violation of 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1) and 846. Felton was tried alone and the jury convicted him of both counts. The district court entered a judgment on the verdict and sentenced Felton to 41 months imprisonment, recommending that he be placed in a drug treatment program for his heroin addiction, and a five year term of supervised release, including participation in a drug abuse program. Felton filed a timely notice of appeal.
On appeal, Felton contends that a portion of Agent Jones' testimony was inadmissible hearsay, 2 and that the admission of this evidence constitutes reversible error. Agent Jones testified that Cargill told him that the October 12 deal did not go through because "surveillance was made." Although this statement was hearsay, 3 defense counsel failed to object to its admission into evidence. The failure to object at trial constitutes waiver at the appellate level. United States v. Gironda, 758 F.2d 1201, 1216 (7th Cir.1985). Under these circumstances, our review of the alleged error is limited to the plain error rule of Fed.R.Crim.P. 52(b). "For an error to be plain it must 'be an error that probably changed the outcome of the trial.' " United States v. Troop, 890 F.2d 1393, 1396 (7th Cir.1989) (quoting United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984)). Our review of the record demonstrates that the admission of Agent Jones' testimony with respect to the reason why the heroin sale was not consummated on October 12 clearly did not change the outcome of Felton's trial. 4
Felton argues that there were three possible explanations for his behavior on October 12. First, as contended by the government, Felton intended to go through with the deal, and would have, except that the surveillance agents were spotted. Second, his conduct amounted to nothing more than mere preparation for which he could not be convicted. Third, given the relationship between Cargill and Felton, and Cargill and...
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U.S. v. Nichols, 90-2398
...There is plain error where a conviction results when, but for the error, the defendant would have been acquitted. United States v. Felton, 908 F.2d 186, 188 (7th Cir.1990). Although a statute of limitations is the primary guarantee against prosecutorial delay, the due process clause also pl......
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...analogous federal rule, a confidential informant is not a co-conspirator for purposes of Evid.R. 801(D)(2)(e). See United States v. Felton, 908 F.2d 186, 188 (7th Cir.1990) ("Because Cargill was a confidential informant, not a co-conspirator, his statement was not admissible as an admission......
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...argue that the photograph was self-authenticating before the district court and therefore the argument was waived. United States v. Felton, 908 F.2d 186, 188 (7th Cir.1990). As we have found, the photograph was properly excluded, therefore there was no plain error. Id.; FED.R.CRIM.P. other ......
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...trial to the asserted error if convinced that but for the asserted error the defendant would have been acquitted. United States v. Felton, 908 F.2d 186, 188 (7th Cir. 1990); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984). See also United States v. Balistrieri, 577 F.Supp.......