U.S. v. Lewis, 90-3584

• Decision Date: 27 January 1992
• Docket Number: No. 90-3584,90-3584
• Citation: 954 F.2d 1386
• Parties: 35 Fed. R. Evid. Serv. 1372 UNITED STATES of America, Plaintiff-Appellee, v. Gregory LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1386

954 F.2d 1386

35 Fed. R. Evid. Serv. 1372

UNITED STATES of America, Plaintiff-Appellee, v. Gregory LEWIS, Defendant-Appellant.

No. 90-3584.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1991.

Decided Jan. 27, 1992.

Daniel P. Bach, Asst. U.S. Atty. (argued), Madison, Wis., for plaintiff-appellee.

Howard S. Goldman (argued), Tomlinson, Gillman, Travers, Gregg & Kravat, Madison, Wis., for defendant-appellant.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and WISDOM, Senior Circuit Judge. ¹

BAUER, Chief Judge.

Gregory Lewis was convicted of conspiracy and attempt to distribute cocaine and heroin in violation of 21 U.S.C. § 846 (1988). Lewis appeals his conviction and sentence, contesting several of the district court's evidentiary rulings and its application of the United States Sentencing Guidelines. We affirm.

I.

Lewis was incarcerated at the Federal Correctional Institution in Oxford, Wisconsin (FCI-Oxford) when the events underlying this case occurred. Lewis worked in the prison factory. Richard Chaffee, a correctional officer, was the factory foreman. During the late fall of 1988, Lewis approached Chaffee, and asked Chaffee to bring some narcotics into the prison to "prove that [Chaffee] was [Lewis's] friend." Trial Transcript, 1-A-6 ("Tr."). Shortly thereafter, Chaffee brought a soda container full of alcohol into FCI-Oxford for Lewis, hoping this would be enough to convince Lewis that he was "all right". Tr. at 1-A-8. He left the alcohol for Lewis in a cabinet in Lewis's work area.

Apparently this wasn't enough, and Lewis asked Chaffee to pick up a package for him. The package was delivered to a former inmate, Larry Smith. Chaffee and Lewis knew Smith because Smith worked in the factory while he was incarcerated in FCI-Oxford. Lewis gave Chaffee Smith's address in Madison, Wisconsin, although Chaffee apparently knew where Smith lived because he had visited him after Smith was released. Sometime in December 1988, Smith called Chaffee to let him know the package had arrived. Chaffee drove to Madison the next day and picked up the package. Inside was a small box containing some cotton balls, a small bottle of perfume, and three "little round balloons." Tr. 1-A-10. Although he never tested the contents, Chaffee said he had "no doubt" that the balloons contained narcotics. Tr. at 1-A-12.

Chaffee placed these balloons inside a potato chip bag, and placed the bag in his desk at the prison factory. He told Lewis what he had done with the balloons, and then left the area. When he returned, the bag was gone and Lewis was smiling at him.

In February 1989, Lewis told Chaffee that Lewis's girlfriend, Susan DeMain, was coming to visit him from Texas and that she was bringing him drugs. A prison investigator monitored the calls between Lewis and DeMain and followed DeMain after she arrived at FCI-Oxford. Lewis asked Chaffee to meet DeMain in the FCI-Oxford parking lot, and described her automobile. Chaffee refused to meet her in the parking lot, but he drove to a nearby motel where he thought she was staying. Chaffee couldn't find DeMain's truck, so he went home. The next day DeMain called Chaffee's home (apparently Chaffee had given his number to Lewis, who gave it to DeMain) and set up a meeting. Chaffee drove to a nearby town and met DeMain and Theresa Enna, another inmate's girlfriend. The women followed Chaffee to an isolated area, where they gave him two balloons. Chaffee pocketed the balloons, returned to his van, and followed a somewhat roundabout route home. The next day, February 21, 1989, Chaffee took the balloons with him to work. He was confronted by two Bureau of Prison investigative lieutenants and an FBI agent. The officers searched Chaffee and his car. They found the balloons in Chaffee's glove compartment. Analysis revealed that the balloons contained 4.14 grams of cocaine (an "eightball" in the vernacular) and 3.85 grams of heroin. Both Chaffee and Lewis were indicted for conspiracy and attempt to distribute narcotics. Chaffee pleaded guilty to the conspiracy charges and testified at Lewis's trial. After a two-day trial, a jury convicted Lewis. Lewis appeals.

II. Evidentiary Challenges

A. Chaffee's Testimony

Lewis objects to several of the district court's evidentiary rulings. The Assistant United States Attorney ("AUSA") questioned Chaffee about the first set of balloons--the ones Chaffee obtained from Smith in Madison. Chaffee never looked inside these balloons, and did not test the contents. The AUSA asked Chaffee what he believed was in these balloons. Lewis's counsel objected because the question called for speculation. To clarify his line of questioning, the AUSA attempted to lay a foundation for Chaffee's expertise on smuggling drugs into federal prisons:

Q. Mr. Chaffee, during your employment as a correctional officer at Oxford, were you familiar with any methods by which narcotics were say frequently smuggled into the prison?

A. Very much so.

Q. Did you ever hear of an occasion or know of an occasion in which drugs were smuggled into the institution packaged in balloons?

Mr. Goldman (counsel for Lewis). Objection. Leading.

The Court. Sustained

Q. What in your opinion, based on your knowledge would you say is the most frequent means for smuggling drugs into a federal institution?

Goldman. Objection. I don't know that we got a foundation for this witness to tell us about that yet.

The Court. Overruled.

A. The most common means of introducing narcotics into an institution is rolled up in balloons.

Q. Based on your experience and knowledge in that regard, did you have an opinion or belief as to what was in the balloons that you obtained in the package at Larry Smith's house?

Goldman. Objection. He's not an expert on this issue.

The Court. Overruled.

A. There was no doubt in my mind that it had narcotics of a sort in them.

Tr. at 1-A-11, -12.

Lewis contends that there was no foundation for Chaffee's expertise on smuggling drugs into prisons. Therefore, Lewis argues that Chaffee should not have been certified as an expert, or permitted to testify regarding drug smuggling. Chaffee never testified that based upon his training, or knowledge of any events other than the ones in which he participated, that he knew of a single case in which drugs were smuggled in balloons. It seems unlikely that, as a factory foreman, Chaffee would have been trained in such matters, or would have first hand knowledge of them.

Under Rule 702 of the Federal Rules of Evidence, ² a trial court has broad discretion to admit or exclude expert testimony, and its determination will be affirmed unless it is "manifestly erroneous." See Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990); United States v. Davis, 772 F.2d 1339, 1344 (7th Cir.), cert. denied, 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985). "Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." Carroll, 896 F.2d at 212. The trial judge failed to make this comparison. Although Chaffee knew how he smuggled drugs into the institution, the AUSA failed to lay a proper foundation for his knowledge of how others did so. Therefore, we believe the district court erred when it certified Chaffee as a drug smuggling expert.

Nevertheless, even if a district court has erred, reversal is required only if the error has affected "substantial rights." Fed.R.Crim.P. 52(a). United States v. Foster, 939 F.2d 445, 450 (7th Cir.1991) (reversal warranted only if error represented miscarriage of justice such that defendant probably would have been acquitted but for the erroneously admitted evidence). In the instant case, the error did not affect Lewis's "substantial rights." The contents of the first set of balloons were not pivotal to the government's case. Lewis was charged only with a single count of conspiracy and attempt to distribute narcotics based upon the second set of balloons. The evidence regarding the first set of balloons was introduced to show the defendants' modus operandi and plan. Moreover Chaffee and Lewis were charged with conspiracy. In order to prove a conspiracy, the government must establish that there is an agreement or meeting of the minds between the members of the alleged conspiracy. See United States v. Butz, 784 F.2d 239, 240-41 (7th Cir.1986). That Chaffee believed the first balloons contained narcotics is all the government needed to establish to show that Chaffee thought he was smuggling in drugs for Lewis in the balloons. It is irrelevant, therefore, what the first balloons actually contained, if Chaffee believed they contained narcotics. Chaffee was caught red-handed with the second set of balloons, which were tested, and contained narcotics. Thus, the effect of Chaffee's testimony about the first balloons on the jury would have been slight. Lewis's remaining challenges to Chaffee's testimony are without merit.

B. Lewis's Post-Arrest Statement

Next, Lewis complains that the trial court erroneously barred his introduction of his prior, consistent, out-of-court statement. We find that Lewis fails to satisfy the heavy burden imposed on parties seeking to overturn a trial judge's evidentiary rulings on appeal. "The admission of evidence generally is left to the sound discretion of the district court, and, therefore, we will reverse the court's decision only for an abuse of that discretion." Goetz v. Cappelen, 946 F.2d 511, 515 (7th Cir.1991) (citing United States v. Byrd, 771 F.2d 215, 219 (7th Cir.1985)).

The AUSA questioned Lewis at trial about a post-arrest interview.

Q. Do you recall being asked by the agents about whether or not you had ever received drugs from a correctional officer named Roger Chaffee?

A. Yes.

Q. Do you recall telling the agents at that time that you hadn't obtained any drugs from Roger...