U.S. v. Love, 02-3834.

• Citation: 336 F.3d 643
• Decision Date: 18 July 2003
• Docket Number: No. 02-3834.,02-3834.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie LOVE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

336 F.3d 643

UNITED STATES of America, Plaintiff-Appellee, v. Willie LOVE, Defendant-Appellant.

No. 02-3834.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2003.

Decided July 18, 2003.

Edmond E. Chang (argued), Office of U.S. Attorney, Chicago, IL, for Plaintiff-appellee.

Susan Kister (argued), Clayton, MO, for Defendant-Appellant.

Before BAUER, POSNER, and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

A jury found Willie Love guilty of conspiracy to possess cocaine base and of three charges related to his possession of a firearm. The court sentenced Love to a total of 295 months' imprisonment. Love appeals, arguing the government's expert testimony exceeded the scope of the pretrial notice and violated Federal Rule of Evidence 704(b), and that the prosecutor made an improper comment during closing arguments. For the reasons stated herein, we affirm.

BACKGROUND

On January 7, 2000, David Johnson met an individual named Pablo to discuss a possible drug transaction. Pablo was actually an undercover FBI agent whose real name was Paul Vina. Johnson agreed to sell one-half kilogram of cocaine base for $11,000. After the deal was made, Johnson began searching for a supplier. Johnson contacted appellant Willie Love and Love agreed to supply one-half kilogram of cocaine base for $10,500. After Love procured the drugs, he met Johnson to give him four 125-gram quantities of crack cocaine. Because Love had not yet received any compensation for the drugs, he accompanied Johnson to the deal.

Johnson and Agent Vina had agreed to meet at a McDonald's restaurant in Berwyn, Illinois. Johnson arrived at the restaurant with Love following close behind. Johnson got into the passenger seat of Agent Vina's car and showed Vina the cocaine. The two men left the car to retrieve the money located in the trunk. At that moment, FBI agents converged on Johnson and placed him under arrest.

Meanwhile, Agent Mark Horton approached Love's car, identified his office, and told Love that he was under arrest and to turn his car off. Love attempted to escape and collided with an FBI agent's car. Undaunted, he continued to drive toward the exit of the parking lot. As FBI agents scrambled to cut off his means of escape, Love tossed a loaded 9mm Lugar pistol with an obliterated serial number out of his vehicle. Love was finally apprehended after he smashed into another agent's car. The agents searched Love's vehicle and found three cellular phones (one which was registered to another individual) and a pager.

Prior to trial, the government notified Love that it would call a drug trafficking expert. The government tendered Agent Wayne Hunter, an investigator with the Drug Enforcement Administration, as an expert under Federal Rule of Evidence 702. The government said that Hunter would testify, inter alia, about "the use of third parties for security and concealment purposes" in drug transactions. The district court accepted Hunter as an expert under FRE 702. At trial, Hunter testified that the amount of base cocaine seized from Johnson was consistent with distribution quantities. He further noted that weapons are common at drug deals and drug dealers often conceal the ownership of their cell phones. Finally, Hunter testified about the presence of third parties at drug sales:

AUSA: Now, based on your training and experience, is it common for persons involved in a drug conspiracy to bring people to a drug deal who do not know what is going on?

Hunter: No, ma'am. The only time that I've seen in sixteen years an individual bring someone else to a drug deal is to fulfill a very specific role, a role similar to what I've described earlier, protection, counter-surveillance, a ruse family. That type of thing.

Love also asserts that the prosecutor made an improper comment during closing arguments when he made reference to "a lawyer's trick." During the cross-examination of co-defendant, David Johnson, Love's counsel attempted to place Johnson's veracity in doubt by questioning Johnson about testimony his girlfriend had given at his bond hearing. Johnson experienced difficulties recalling the details of this subject matter. During closing argument, defense counsel seized upon this line of questioning:

And he lied before your very eyes when he testified. He was on the stand, I think it was Tuesday, I said you remember when the mother of your children got on the witness stand ... and said you worked at this body shop? Do you remember that? No, I have no recollection. It didn't happen.

Here is the mother of your children ... polluting the courtroom with perjury, and you don't remember it. Can you believe that? Can you believe that for one second that you would allow someone close to you to do that and you don't remember it?

And then what I had to do was come back the next day with the transcript. And I show it to him. I said is this the transcript? Is this Ms. Moore's testimony? He says yes it is. Now all the sudden he remembers. He changed his testimony right before your eyes.

In rebuttal, the government pointed out that Johnson's credibility was not damaged because defense counsel asked about specific questions, which Johnson could not possibly remember verbatim:

AUSA: Now, [defense counsel], who is a very skilled questioner, talked to you a moment about his common-law wife's testimony that he asked David Johnson about. And I want to point out a lawyer's trick that you saw.

DEFENSE: Objection to lawyer's tricks, Judge. That's improper.

COURT: Sustained.

AUSA: I will withdraw my comment, your Honor.

The jury found Love guilty of conspiracy to possess 476 grams of cocaine base with the intent to distribute, in violation of 21 U.S.C. § 846; carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); possessing a firearm after previously being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); and possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). The court denied Love's motion for a new trial and sentenced him to 295 months' imprisonment.

ANALYSIS

A. Expert Testimony

Love argues that Agent Wayne Hunter's testimony exceeded the scope of the pretrial notice and also violated Federal Rule of Evidence 704(b) because he testified as to Love's state of mind. The government asserts review is for plain error because Love failed to object to the expert's testimony. We agree. The transcript reveals an absence of any objection from Love when the testimony at issue was elicited, thus, we review the decision to admit such testimony for plain error. United States v. Curtis, 280 F.3d 798, 801 (7th Cir.2002).

Love's first argument centers on a single, specific comment from Hunter, which was elicited in the following colloquy:

AUSA: Now, based on your training and experience, is it common for persons involved in a drug conspiracy to bring people to a drug deal who do not know what is going on?

Agent Hunter: No, ma'am. The only time that I've seen in sixteen years an individual bring someone else to a drug deal is to fulfill a very specific role, a role similar to what I've described earlier, protection, counter-surveillance, a ruse family. That type of thing.

Love argues that this statement exceeded the scope of the government's proffer. His contention is without merit. In the government's final proffer, it notified Love that Hunter would explain "the security measures that are common in transactions including street-level distribution of crack... [and] the use of third parties for security and concealment purposes (for example, to conduct countersurveillance, hold weapons, drugs, or money, or to make the deal appear innocent)." That is precisely what Hunter did at trial. Hunter's...