U.S. v. Glover

• Citation: 479 F.3d 511
• Decision Date: 14 March 2007
• Docket Number: No. 06-1695.,06-1695.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy GLOVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

479 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Roy GLOVER, Defendant-Appellant.

No. 06-1695.

United States Court of Appeals, Seventh Circuit.

Argued February 7, 2007.

Decided March 14, 2007.

Michael Donovan (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kent R. Carlson (argued), Carlson & Associates, Chicago, IL, for Defendant-Appellant.

Before FLAUM, ROVNER, and EVANS, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted Roy Glover of two drug offenses and two gun offenses: (1) possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession of heroin and cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a); (3) possession of a firearm in furtherance of, and during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) knowingly possessing a firearm and ammunition, having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g). On February 28, 2006, the district court sentenced Glover to 360 months' imprisonment after determining that he was a career offender. Glover alleges numerous errors related to his conviction and sentence. For the following reasons, we affirm.

I. BACKGROUND

On June 23, 2004, around 10:00 p.m., Chicago police officers were conducting surveillance of street activity in the 4200 block of West Adams Street, an area known for drug crimes. Officers John Killackey and Sean Pickett saw Roy Glover standing across the street from an elementary school and decided to set up surveillance in some nearby bushes. Over the next fifteen minutes, the officers observed four unidentified individuals approach Glover and hand him something that he held up to examine. Each time, Glover walked a few steps away and retrieved a plastic bag from the ground, took out at least one small object, and handed it to the individual.

Killackey and Pickett radioed two other police officers, Daniel Bora and Humberto Munguia, and directed them to arrest Glover for suspected drug dealing. When the two responding officers pulled up in unmarked vehicles, Glover turned and ran. As Bora gave chase, Glover fled down a gangway towards a basement apartment at 4242 W. Adams. Bora saw Glover reach toward his waistband and throw an object away from his body. Bora heard the clink of metal hitting the ground. Glover then entered the basement apartment and closed the door behind him. Bora retrieved a semi-automatic firearm from the ground and arrested Glover in the basement apartment. At the time of arrest, Glover possessed four live rounds and $80 in cash.

While Bora chased and apprehended Glover, Pickett recovered the plastic bag from which Glover had been retrieving items. The plastic bag contained two smaller bags, one of which contained 39 capsules of cocaine base, weighing 3.3 grams in total. The second small bag contained 14 tinfoil packets of heroin mixtures, weighing 2.1 grams altogether.

At trial, in addition to the testimony of the responding officers, the government presented expert testimony from a Chicago Police Department evidence technician, Jane Michalik. Michalik testified that she tested the gun, bullet, and magazine recovered at the scene for fingerprints. Michalik recovered one partial print, but it was not suitable for comparison. Nevertheless, Michalik explained that such an outcome is not unusual—fingerprints are rarely obtained from guns due to various factors like sweating and the weather. On cross examination, Michalik conceded that she was unaware of whether Glover was sweating or what the weather conditions were on the night of Glover's arrest.

The government also presented expert testimony from Robert Coleman, a DEA task force officer. Coleman testified that he had been involved in hundreds of drug investigations, which had honed his expertise on the methods and practices of drug dealers. He said that street level drug dealers typically sell very small quantities of cocaine and heroin, which can be packaged in capsules, bottle caps, corner cut baggies, or foils. Coleman also observed that even small amounts of drugs, as in Glover's case, can be distributed if packaged in small enough quantities. He explained that street dealers often maintain small stashes of drugs nearby for resupply, rather than carrying all of their drugs with them. Finally, Coleman testified that firearms are common "tools of the trade" for drug dealers.

Glover's neighbor and girlfriend testified on his behalf. The neighbor attempted to discredit the officers' version of events by casting doubt on whether the officers had conducted surveillance from the yard as they had claimed. The neighbor testified that he owned two dogs that barked loudly whenever anyone entered his yard. Although the neighbor specifically recalled the night of Glover's arrest, he did not remember hearing his dogs bark. Glover's girlfriend testified about the officers' entry into the apartment she shared with Glover on the night of his arrest. She also testified about Glover's employment history, noting that he had worked for their landlord and for Comcast Cable.

During closing arguments, the prosecutor remarked on Glover's employment history. Specifically, he pointed out that Glover had subpoena power and could have obtained documents related to his employment at Comcast rather than relying on his girlfriend's testimony. Glover objected to the remark, and the judge sustained the objection. The prosecutor continued, noting that no one from Comcast had testified. Glover again objected, and the judge again sustained the objection. The judge then instructed the jury to disregard the remarks, emphasizing that the government retained the burden of proof.

After closing arguments, the judge provided the jury with instructions. Glover requested a "mere presence" instruction, which would have informed the jury that a defendant's knowledge that a crime is being committed in his presence is insufficient to support a conviction. However, the judge refused to tender the instruction, concluding that the evidence presented did not warrant it. The jury returned a guilty verdict on all four counts contained in the indictment.

Between Glover's trial and sentencing, the probation office prepared a presentence investigation report ("PSR") which concluded that Glover was a career offender under U.S.S.G. § 4B1.1(a). The probation office based its conclusion on two prior convictions: a 1984 murder conviction when Glover was 17 and a 1991 conviction for the unlawful possession of a weapon by a person in prison. Glover objected to the PSR's conclusion that he was a career offender, but the district court agreed with the PSR. Consequently, Glover's criminal history level increased from a 4 to a 6, yielding an offense level of 28 and a recommended sentence range of 360 months to life in prison. The district court sentenced Glover to 360 months in prison. Glover appeals his conviction and sentence.

II. DISCUSSION

Glover raises multiple issues related to both his conviction and sentence. First, he contends that the trial court improperly admitted Michalik's and Coleman's expert testimony. Second, he claims that the district court erred in refusing to provide the jury with a mere presence instruction. Third, he asserts that the prosecutor's improper remarks during closing argument warranted a new trial. As to his sentence, Glover argues that he should not have been classified as a career offender, that this Court should revisit its presumption that guidelines sentences are reasonable, and that his sentence was unreasonable in any case.

A. Expert Testimony on Practices of Street Level Drug Dealers

Glover asks this Court to reverse his conviction because the trial court improperly allowed Officer Coleman to testify as an expert on the practices of street level drug dealers. Glover argues that Coleman's testimony was irrelevant because the jury did not need an expert to conclude that the drugs were packaged for distribution. Furthermore, Glover continues, Coleman's testimony violated Federal Rule of Evidence 704(b) because he made a final conclusion or inference about Glover's mental state, i.e., what Glover intended to do with the drugs. We review the trial court's admission of Coleman's expert testimony for an abuse of discretion. See United States v. Parra, 402 F.3d 752, 758 (7th Cir.2005).

This Circuit repeatedly has approved expert police testimony about the characteristics of drug dealers. See, e.g., United States v. Love, 336 F.3d 643, 646-48 (7th Cir.2003); United States v. Cruz-Velasco, 224 F.3d 654, 659-61 (7th Cir.2000) (collecting cases); United States v. Lipscomb, 14 F.3d 1236, 1239-40 (7th Cir.1994) (collecting cases). Given that Glover was being tried for selling drugs on the street, testimony regarding the practices of street level drug dealers was unquestionably relevant. See, e.g., United States v. Sanchez-Galvez, 33 F.3d 829, 832 (7th Cir.1994) ("[B]ecause the clandestine nature of narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers may testify as experts in order to assist the jury in understanding these transactions.").

Glover's next claim—that Coleman improperly opined on Glover's mental state—is governed by our decision in Lipscomb:

[W]hen a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of defendant's mental processes. Relevant in this regard, though not determinative, is the degree to which the expert refers specifically to the `inten...