U.S. v. Fulford

• Decision Date: 02 December 1992
• Docket Number: No. 92-1018,92-1018
• Parties: 37 Fed. R. Evid. Serv. 15 UNITED STATES of America, Plaintiff-Appellee, v. James FULFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1110

980 F.2d 1110

37 Fed. R. Evid. Serv. 15

UNITED STATES of America, Plaintiff-Appellee, v. James FULFORD, Defendant-Appellant.

No. 92-1018.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1992.

Decided Dec. 2, 1992.

Colin S. Bruce, Asst. U.S. Atty. (argued), Springfield, Ill., for plaintiff-appellee.

Paul M. Brayman, Chicago, Ill., Michael B. Metnick, Richard D. Frazier (argued) Metnick, Barewin & Wise, Springfield, Ill., for defendant-appellant.

Before CUMMINGS and MANION, Circuit Judges, and ZAGEL, District Judge. ^*

MANION, Circuit Judge.

James Fulford appeals his conviction for conspiracy to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), contending that the district court erred at trial in allowing the admission of alleged hearsay testimony, as well as other allegedly irrelevant and prejudicial testimony. He also appeals the $5,000 fine imposed during sentencing as improper in light of facts of record indicating his indigence. We affirm.

I. Facts

Sometime in the spring of 1989, Raymond Elmore ("Raymond"), at the request of his brother Richard Elmore ("Richard"), arranged to purchase one pound of methamphetamine from Fulford for $6,000. On their way from their homes in Illinois to Fulford's home in California, where the transaction was to take place, the brothers met Claire "Butch" Wiley, who expressed an interest in buying some of the drug after its acquisition. The brothers and Wiley then proceeded separately to Fulford's house, where the brothers procured the prearranged quantity of methamphetamine.

During the transaction, Fulford increased the purchase price from the agreed-upon $6,000 to $10,000. The brothers paid the $6,000 and promised to pay the remaining $4,000 at an unspecified future date. Richard then took the methamphetamine to his home in Illinois, where he diluted the drug and wrapped it in one-ounce packages. He eventually sold portions of this supply to Wiley, a woman named Bea Roof, and another woman he knew as Laurie, who was actually undercover agent Sharon Sweeney.

Several months after the initial purchase, Wiley and Richard began to discuss the possibility of acquiring more methamphetamine from Fulford. In May 1990, Wiley and Richard travelled to Albuquerque, New Mexico, where they had arranged with Fulford to purchase one kilogram of the drug. On arrival they attempted to contact Fulford by telephone and were told that no delivery would be made until Richard paid the $4,000 still owed from the previous deal. Richard then wired a $4,000 money order to Fulford's wife, Barbara, and awaited delivery. When after several days Fulford had not yet arrived with the drug, Richard and Wiley abandoned their venture and returned to their respective homes in Illinois and Pennsylvania.

In August 1990, Richard was arrested while selling methamphetamine to undercover agent Sharon Sweeney. After being advised of his Miranda rights, Richard agreed to provide information to the arresting officers. He was given no deal or other incentive to provide the information and was told only that his cooperation would be brought to the attention of the United States Attorney. Richard proceeded to disclose to one of the arresting officers, Deputy United States Marshal Bruce Harmening, the pertinent information about his involvement with the distribution of methamphetamine. Among other facts, he revealed that he had purchased $10,000 worth of methamphetamine from Fulford in the spring of 1989, that this purchase had been arranged by a third person, and that he had recently purchased approximately one-half pound of methamphetamine from Wiley.

At his arraignment, Richard pleaded guilty to the charges contained in his indictment and thereafter entered into a cooperation agreement with the government. The agreement guaranteed no special deals for Richard, it simply granted him immunity for all accurate testimony thereafter rendered. In October 1990, Wiley was arrested for an unrelated methamphetamine transaction and entered into a plea agreement which, like Richard's cooperation agreement, granted immunity for all truthful testimony. Even though he was never indicted, Raymond also entered into a cooperation agreement which guaranteed immunity for all truthful testimony.

Fulford was indicted on February 2, 1991, and later arrested. After being advised of his Miranda rights, he stated to arresting officer David Pike that Wiley, Richard and Raymond had approached him to purchase drugs, and that he had agreed to supply drugs to Wiley. Fulford also admitted receiving Richard's $4,000 money order, but denied that the payment was compensation for methamphetamine.

At trial, the government presented co-conspirators Raymond, Richard and Wiley, as well as a host of additional witnesses and other evidence, detailing Fulford's involvement in the methamphetamine trade. Fulford took the witness stand in an unsuccessful attempt to refute the government's evidence. The jury found Fulford guilty of both conspiracy to distribute and distribution of methamphetamine. The district judge sentenced him to twelve years in prison, followed by five years of supervised release, and assessed a $5,000 fine. Fulford appeals his conviction contending that the district court committed reversible error in allowing the admission of certain testimony. Specifically, he challenges the testimony of Deputy Harmening which was introduced to rehabilitate Richard. He also challenges as prejudicial both the admission of testimony regarding his cooperation, and the admission of testimony regarding his half-brother's possible involvement with the Hell's Angels. Finally, he appeals a $5,000 fine imposed as part of his sentence.

II. Analysis

A. Richard's Testimony

Richard's considerable involvement in both the conspiracy and the actual distribution of the methamphetamine made him a valuable government witness. The defense cross-examined Richard extensively about his reasons for cooperating with the government. In the context of general questioning about the cooperation agreement, Fulford's attorney asked "(i)sn't it true" that Richard expected his cooperation would help lessen his pending sentence. Richard answered that he was unsure how the sentencing judge would regard his cooperation. Fulford's attorney then asked "isn't it true" that Richard hoped his cooperation would also help his brother Raymond. Richard denied that he cooperated in order to help his brother. Later on re-cross examination, the defense attorney attempted to show a contradiction in Richard's testimony by comparing his post-arrest statement that he purchased the drug from Wiley with his later testimony that he purchased it from Fulford.

On re-direct examination the government was able to clarify that after Richard's arrest, he made statements about two methamphetamine transactions, one in which he purchased the drug from Fulford, and the second in which he purchased the drug from Wiley. Even with this clarification, however, the defense attorney had successfully raised the question that Richard's post-arrest statements contradicted his testimony that he had purchased methamphetamine from Fulford. The defense attorney's questioning thus raised an inference that Richard fabricated his trial testimony for the purpose of obtaining a favorable sentence and to help his brother. The government proceeded to call Deputy Harmening to the witness stand to rehabilitate the testimony of Richard.

B. Rehabilitation Testimony

1. Hearsay Objection

During the government's direct examination of Deputy Harmening, the following exchange took place:

Q. At the time of his [Richard Elmore's] arrest what statements did he give to you?

THE COURT: What was that? What statements?

MR. BRUCE: At the time of his arrest, what statements did Richard Elmore give to Deputy Harmening?

A. He told us that approximately a year ago he purchased one pound--

MR. CASPER: Your Honor, I'm going to object at this time based upon the hearsay nature of the testimony.

THE COURT: No, I think that this is permissible under the rules in a criminal case, investigating officer, part of the team. No, I think this is permissible.

MR. BRUCE: Thank you, Judge.

A. He told us that approximately one year prior to that he purchased one pound of methamphetamine from Jim Fulford in California for $10,000 dollars. He said he was introduced to Mr. Fulford through a third person. He stated to me that he sold approximately half of the methamphetamine to Laurie, who is Sharon Sweeny, the undercover agent. He stated that he sold several ounces to Butch Wiley, and that he sold--I don't remember the amount--it was a smaller amount to Bea. He also said that approximately one month prior to his arrest he purchased approximately one-half pound of methamphetamine from Butch Wiley in Pennsylvania and I think it was Pocono, Pennsylvania.

(Vol. II, R. 340-341)

Fulford contends that the trial judge committed reversible error in overruling his hearsay objection and allowing Deputy Harmening to testify as to the prior consistent statements of Richard. We give special deference to the evidentiary rulings of the trial judge and overrule such rulings only when we find that the trial judge abused his discretion in admitting testimony. United States v. Kramer, 955 F.2d 479, 491 (7th Cir.1992). "Generally, an abuse of discretion only occurs where no reasonable person could take the view adopted by the trial court. If reasonable persons could differ, no abuse of discretion can be found." United States v. Manos, 848 F.2d 1427, 1429 (7th Cir.1988) (quoting Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982)).

Federal Rule of Evidence 801(d)(1)(B) allows the admission of prior consistent statements to rehabilitate a witness if the following criteria are met: 1) the declarant testifies at trial and is...