U.S.A. v. Hatchett

• Decision Date: 26 March 2001
• Docket Number: No. 99-2305,99-2305
• Citation: 245 F.3d 625
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRANNON L. HATCHETT, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 625

245 F.3d 625 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRANNON L. HATCHETT, Defendant-Appellant.

No. 99-2305

In the United States Court of Appeals For the Seventh Circuit

Argued December 7, 1999

Decided March 26, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 CR 117--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted Brannon L. Hatchett of distributing crack cocaine and of aiding and abetting his purchaser's re-sale of the same cocaine to an informant and an undercover officer. Hatchett contends that his concurrent sentence on the aiding and abetting charge amounts to a second punishment for the same offense. He also challenges the admission of evidence concerning a prior narcotics transaction, as well as the district court's refusal to admit certain fingerprint evidence. We conclude that Hatchett's conviction and sentence on the aiding and abetting charge do not amount to an impermissible multiple punishment for a single offense. We also find no abuse of discretion in the admission of testimony concerning the prior drug transaction or in the exclusion of the fingerprint evidence.

I.

In reviewing Hatchett's conviction, we are obligated to credit testimony and indulge inferences that benefit the prosecution. We therefore recount the facts in the light most favorable to the government.

Hatchett met John L. Riley at a Madison, Wisconsin nightclub in October of 1998, and shortly thereafter Hatchett began to sell crack cocaine to Riley. Typically, when Riley wanted to make a purchase, he would contact Hatchett either by paging him or by telephoning him at the apartment of Hatchett's girlfriend, where Hatchett often stayed.

In November 1998, Tracy Panzer, whose brother was married to Riley's sister, telephoned Riley to ask whether he could obtain an ounce of crack cocaine for himself and a friend. Unbeknownst to Riley, Panzer was working as a confidential informant with the Oneida County Sheriff's Department, and his "friend," Dan Hess, was a deputy sheriff working undercover. After a number of telephone calls to Hatchett, Riley told Panzer that he had the cocaine Panzer and his friend wanted.

On November 24, 1998, Riley met Panzer and Hess at a PDQ near Riley's apartment in Madison. Riley did not have the cocaine with him at that time, and explained to Panzer and Hess that he needed to telephone his "guy" in order to get it. Riley borrowed Hess's cellular phone for that purpose and placed a call to the home of Hatchett's girlfriend. After completing the call, Hatchett told the two men that they would have to wait awhile in order to complete the transaction. Panzer and Hess then drove Riley to his apartment complex. Riley invited them in to his apartment to wait for his source to deliver the cocaine. The two men declined, however, and Hess went up to this second-floor apartment alone. There he contacted Hatchett, arranged for delivery of the cocaine, and then telephoned Panzer and Hess to let them know that the narcotic was on its way.

A surveillance officer subsequently observed a car drive into the parking lot of the apartment complex, circle the lot, and then leave. Moments later Hatchett telephoned Riley and said that he thought there was "heat" in the vicinity of the apartment building. Riley assured him that everything was fine and encouraged him to come to his apartment. A short time later the same car that had circled and left the parking lot earlier returned and parked. A man later identified as Hatchett left the vehicle and entered Riley's apartment building. No more than two minutes later, Riley telephoned Panzer and Hess to tell them that he had the cocaine and to name the price ($775) that he wanted. Panzer and Hess, who were waiting at a local shopping mall, drove back to Riley's apartment complex. While they were en route, Riley left Hatchett in his apartment awaiting payment and walked downstairs to the building entryway. He stopped there to collect his mail and to look outside in order to determine whether there might be any "heat" in the parking lot, as Hatchett had suspected. He satisfied himself that there was none. Impatient for Panzer and Hess to arrive, Riley telephoned them again wondering where they were. They assured him that they were on their way. In fact, they arrived almost immediately, parked in front of the apartment building, and spotted Riley waiting for them in the doorway. Riley walked over to Panzer's car, got in the back seat, and handed to Hess a Marlboro cigarette package containing a substance that was later determined to be nearly 10 grams of crack cocaine.

Once Riley had delivered the cocaine, an arrest signal was given and officers moved in to arrest Riley. As they did so, Hess saw Hatchett standing on Riley's second-floor balcony. Hatchett, who was ordered to remain where he was, tried to flee but was unsuccessful.

A grand jury indicted Hatchett on two charges. R. 11. As elucidated by the government's subsequent bill of particulars (R. 31 at 2-3), Count One alleged that Hatchett knowingly and intentionally distributed crack cocaine to Riley, in violation of 21 U.S.C. sec. 841(a)(1), while Count Two alleged that he aided and abetted Riley's subsequent delivery of that same cocaine to Hess, in violation of 18 U.S.C. sec. 2 and 21 U.S.C. sec. 841(a)(1). Before trial, Hatchett moved to dismiss Count Two as multiplicitous, asserting that the indictment effectively charged him twice for the same crime. R. 22, 32. On the recommendation of the magistrate judge (R. 41), the district court denied the motion (R. 52). The court emphasized that the indictment charged Hatchett with participating in two distinct criminal transactions, his own initial distribution of cocaine to Riley, and Riley's subsequent distribution of the cocaine to Hess. In order to prove Hatchett's guilt on Count Two, the court pointed out, the government would have to establish that the second distribution from Riley to Hess took place, and that Hatchett knowingly associated himself with that second transaction, that he participated in it, and that he tried to make it succeed. R. 41 at 7, R. 52 at 3. Therefore, the court reasoned, the indictment did not charge Hatchett twice for the same offense.

The case proceeded to trial. Hatchett's defense was that he was not Riley's source of cocaine. Riley was a goldsmith, and Hatchett maintained that he associated with Riley solely because he believed he might be able to get jewelry at a discounted price. Indeed, Hatchett had introduced his cousin to Riley, and according to the defense, Riley was in the process of making some jewelry for his cousin in late November 1998. That was Hatchett's explanation for his presence in Riley's apartment on the evening of November 24, when he and Riley were arrested. (The police found no narcotics, no large sums of cash, and no drug paraphernalia either on Riley's person or in his car.)

It turned out, however that there had been a prior cocaine transaction that brought Hatchett, Riley, and Tracy Panzer's brother Robert together. In late October, 1998 (one month prior to the events culminating in Hatchett's indictment), Riley had mentioned to Robert that he had a new source for crack cocaine. Robert expressed interest in obtaining some of the illicit drug from Riley's source and asked Riley to make appropriate arrangements. Robert drove to Riley's apartment in Madison in order to retrieve the cocaine. After he arrived, Riley made a number of telephone calls to his source. After a three-hour wait, Hatchett arrived at Riley's apartment. After Robert was introduced to Hatchett and the two had shaken hands, Riley and Hatchett went into a bathroom together. When they emerged, Riley turned over an "eight-ball" quantity of crack cocaine to Robert and kept a similar amount for himself. Hatchett then left the apartment. Over Hatchett's objection, the district court permitted the government to elicit testimony from Robert about this October transaction, reasoning that the evidence was admissible under Fed. R. Evid. 404(b) in order to establish plan or preparation, knowledge, and opportunity. R. 79 at 14-19.

At the close of the defense case, Hatchett's counsel offered an uncertified copy of a fingerprint analysis report issued by the Wisconsin Crime Laboratory. R. 80 at 268. That report indicated that the laboratory was unable to match to either Riley or Hatchett a latent fingerprint found on a metal cigar box in which Hatchett had delivered the cocaine to Riley on November 24. Def. Ex. 4. Judge Shabaz declined to admit the report into evidence without an appropriate foundation. R. 80 at 269-72.

The jury convicted Hatchett on both counts of the indictment. Judge Shabaz ordered him to serve a prison term of 90 months, to be followed by a five-year term of supervised release. The judge did not impose a fine or any restitution obligation, but he did order Hatchett to pay a special assessment of $100 on each count of conviction.

II.

A.

The Double Jeopardy Clause of the Fifth Amendment provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. Three separate guarantees inhere in this constitutional provision: (1) once acquitted of a charge, a person shall not be prosecuted again for the same offense; (2) once convicted of a crime, a person shall not be prosecuted again for that same crime; and (3) one shall not be punished twice for the same offense. E.g., Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264 (1980). It is the third guarantee, if any, that would potentially apply to Hatchett, to the extent that his sentence reflects multiple punishments for what he argues is one offense.¹ The Supreme Court has made clear, however, that the Double Jeopardy...