U.S. v. Jewel, s. 90-2001

• Decision Date: 21 October 1991
• Docket Number: Nos. 90-2001,90-2262,s. 90-2001
• Citation: 947 F.2d 224
• Parties: 34 Fed. R. Evid. Serv. 474 UNITED STATES of America, Plaintiff-Appellee, v. Harold Benny JEWEL, also known as "Bear," and Arthur S. Jackson, also known as Stevie Jackson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 224

947 F.2d 224

34 Fed. R. Evid. Serv. 474

UNITED STATES of America, Plaintiff-Appellee, v. Harold Benny JEWEL, also known as "Bear," and Arthur S Jackson, also known as Stevie Jackson Defendants-Appellants.

Nos. 90-2001, 90-2262.

United States Court of Appeals Seventh Circuit.

Argued Dec. 11, 1990.

Decided Oct. 21, 1991.

R. Jeffrey Wagner, Asst. U.S. Atty., William J. Lipscomb (argued), Asset Forfeiture Unit, Milwaukee, Wis., for U.S.

James M. Shellow, Robert R. Henak (argued), Shellow, Shellow & Glynn, Milwaukee, Wis., for Harold Benny Jewel.

Dominic Frinzi, Milwaukee, Wis., for Arthur S. Jackson.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Co-defendants Harold Jewel and Arthur Stevie Jackson were tried jointly before a jury. The jury found Mr. Jewel and Mr. Jackson guilty of violating 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine), 18 U.S.C. § 1952 (interstate travel to facilitate unlawful activity), and 21 U.S.C. § 841(a)(1) (possession with intent to distribute cocaine). Mr. Jewel and Mr. Jackson each received concurrent sentences of thirty years, five years, and thirty years, respectively, on the three counts. In this appeal, both challenge their convictions as well as their sentences. For the reasons set forth in this opinion, we affirm their convictions but vacate their sentences and remand for resentencing.

I BACKGROUND

A. Facts

This case involves a complicated set of facts and a large number of participants and witnesses, some of whom frequently are referred to in the transcripts by their aliases. ¹ We present here only those facts the reader will need to understand the case as a whole. Additional facts relevant to specific issues will be introduced when we take up those issues.

From at least April 1987 to September 1989, Mr. Jewel and Mr. Jackson were involved in narcotics trafficking in Milwaukee. One individual who often was involved in their dealings was Everett Pierce. The appellants had known Pierce since childhood. Pierce and Mr. Jackson began purchasing small quantities of cocaine from Mr. Jewel for resale in 1987. Pierce later became a supplier for, rather than only a regular customer of, the appellants. In 1989, Mr. Jackson contacted Pierce and asked him to find a source of cocaine for them. Mr. Jewel and Mr. Jackson later asked Pierce to purchase cocaine for their younger brothers, Ricky Jewel and Michael Jackson. That deal fell through because the younger brothers never showed up with the purchase money. However, on three occasions in 1989, Pierce supplied a total of three kilograms of cocaine to Mr. Jackson.

Meanwhile, in the spring of 1989, Pierce was arrested on drug charges and agreed to serve as a confidential informant for Milwaukee police officers. ² Pierce began to assist in the investigation of the narcotics activities of Mr. Jewel and Mr. Jackson, who were living in Atlanta at the time. Under the supervision of Milwaukee Police Department Detective James Cesar and Drug Enforcement Administration (DEA) Agent Jeanne Tasch, Pierce telephoned the appellants in Atlanta, purportedly to set up a cocaine purchase. He then accompanied Detective Cesar to Atlanta in early September and began working with DEA Agent Regina Bledsoe. On September 11, 1989, Pierce and Agent Bledsoe met Mr. Jackson and a friend, Gilbert Lewis, at the Lion's Den bar. Pierce told Mr. Jackson that he had brought $100,000 to Atlanta and hoped to buy five kilograms of cocaine. Mr. Jackson indicated that he was leaving for Milwaukee the next day, but advised Pierce to contact Mr. Jewel. Pierce and Agent Bledsoe met Mr. Jewel and Lewis the next day at Bucks Underground, another Atlanta bar. Mr. Jewel told Pierce that he was out of cocaine but that he would try to arrange to have five kilograms flown from California to Milwaukee.

Pierce returned to Milwaukee, and Mr. Jewel called Donnell Pickens, a California-based drug dealer, to inform him about the five-kilogram deal. ³ Although Pickens was unable to obtain the entire amount, he flew to Milwaukee with approximately two kilograms of cocaine on September 20, 1989. The next day, Pickens was arrested when he met Pierce to deliver the cocaine. On September 26, Mr. Jewel and Mr. Jackson were arrested at separate locations in Atlanta.

B. District Court Proceedings

On September 26, 1989, Mr. Jewel, Mr. Jackson, Ricky Jewel, and Pickens were named in a four-count indictment. Count One charged them with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. The period of the charged conspiracy was January 1, 1987 to September 26, 1989. Count Two charged them with interstate travel to facilitate the attempted cocaine transaction of September 21, 1989, in violation of 18 U.S.C. § 1952. In Count Three, the four men were charged with possession with intent to distribute approximately 2.3 kilograms of cocaine on September 21, in violation of 21 U.S.C. § 841(a)(1). Count Four charged Pickens with possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Each count also expressly charged violation of 18 U.S.C. § 2 (aiding and abetting).

Pickens agreed to plead guilty to Counts Three and Four and to testify against his coconspirators. Ricky Jewel was not arrested. In February 1990, Harold Jewel and Mr. Jackson were jointly tried in a jury trial that resulted in guilty verdicts on all three counts. Mr. Jewel and Mr. Jackson were sentenced on April 24, 1990 pursuant to the United States Sentencing Guidelines (U.S.S.G. or the guidelines). ⁴ Although Count One of the indictment indicated that the conspiracy had started on or about January 1, 1987, the district court concluded that the evidence did not support a finding that the conspiracy had started before April 13, 1987. Each defendant received concurrent prison terms of thirty years on each of Counts One and Three and five years on Count Two, to be followed by five years of supervised release. Mr. Jewel filed a timely appeal. The district court granted Mr. Jackson's motion to file his notice of appeal on June 1, 1990. See Fed.R.App.P. 4(b) (on showing of excusable neglect, district court may extend time for filing notice of appeal for up to thirty days).

II ANALYSIS

A. Challenges to Convictions

1. Admission of audiotape

Mr. Jewel and Mr. Jackson contend that the district court abused its discretion in admitting into evidence a partially inaudible copy of a tape recording of a conversation involving Mr. Jewel, Everett Pierce, and DEA Agent Regina Bledsoe. Even though the tape was never played in open court, the appellants submit that the tape's authenticity was never established adequately and that its admission unfairly bolstered the credibility of Agent Bledsoe's testimony.

The conversation took place on September 12, 1989 at Bucks Underground, a bar located in the Atlanta Omni Hotel. Apparently because of background noise at the bar, much of the tape was inaudible. Nonetheless, Agent Bledsoe, who secretly had recorded the conversation, testified that, to the extent the tape was audible, it accurately reflected the Bucks Underground discussion. See Tr. at 261. Furthermore, Pierce testified that he had listened to the tape and could hear parts of it. See id. at 169-70. On cross-examination by Mr. Jewel's counsel, Pierce insisted that "you can hear it where I spoke to him [Mr. Jewel] about five keys [kilograms of cocaine] and he said he would call me." Id. at 240. Over defense objections, the district court admitted the tape into evidence.

This court reviews district court evidentiary rulings under an abuse of discretion standard. See, e.g., United States v. Degaglia, 913 F.2d 372, 375 (7th Cir.1990). As we explained in Degaglia:

With specific regard to the admissibility of tape recordings, this court has noted that "the trial judge exercises broad discretion in determining whether [the government has satisfied its burden of authenticating a tape recording]. Accordingly, the trial judge's ruling on the admissibility of the tape will not be overturned on appeal absent 'extraordinary circumstances.' "

Id. (quoting United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984) (citations omitted)). There is no doubt that the testimony of Agent Bledsoe, a participant in the Bucks Underground discussion, normally would provide an adequate foundation for the admission of the tape. See id. at 375-76. In this case, however, the focus of the appeal regarding the disputed tape is the contention that so much of it was inaudible that the tape as a whole was unreliable. On this specific issue, the abuse of discretion standard again applies: "We have noted that, '[g]enerally, tape recordings which are only partially unintelligible are admissible unless the recording as a whole is rendered untrustworthy by the unintelligible portions.' " Id. at 378 (quoting United States v. Camargo, 908 F.2d 179, 183 (7th Cir.1990)).

We have reviewed the tape and the colloquy between the district court and counsel with respect to its admissibility. We cannot say that the district court abused its discretion in admitting the tape. There was ample testimony that the tape, inasmuch as it is audible, accurately reflected the conversation in the bar on the night in question. Moreover, on the basis of our own review of the tape, we believe it is somewhat corroborative of the testimony of Agent Bledsoe. ⁵

2. Prosecutor's closing argument

Both appellants contend that the prosecution's rebuttal argument unfairly prejudiced their right to a fair trial by presenting facts not in evidence. The challenged statement proposed an explanation of an apparent discrepancy between testimony about a critical three-way telephone call that Mr. Jewel allegedly had placed and telephone toll records that showed no such call. The date of the call was September 21, 1989. At that time, Mr. Jewel was in Atlanta,...