U.S. v. McKenzie, s. 89-3177

• Decision Date: 22 January 1991
• Docket Number: 89-3203,89-3204 and 89-3243,Nos. 89-3177,s. 89-3177
• Citation: 922 F.2d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick J. McKENZIE, John L. Wood, Ansel P. Allen, and Garth Stennett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1323

922 F.2d 1323

UNITED STATES of America, Plaintiff-Appellee, v. Patrick J. McKENZIE, John L. Wood, Ansel P. Allen, and Garth

Stennett, Defendants-Appellants.

Nos. 89-3177, 89-3203, 89-3204 and 89-3243.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 1990.

Decided Jan. 22, 1991.

Michael R. Pace, Asst. U.S. Atty., Office of the U.S. Atty., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S.

Nancy B. Murnighan, Office of the Federal Public Defender, Chicago, Ill., Michael B. Mann, Zavislak & Mann, Hillside, Ill., for Patrick McKenzie.

Nathan Diamond-Falk, Nancy B. Murnighan, Office of the Federal Public Defender, Chicago, Ill., for John L. Wood.

George T. Stephenson, Nancy B. Murnighan, Office of the Federal Public Defender, Chicago, Ill., for Ansel P. Allen.

Martin S. Agran, Agran & Agran, Nancy B. Murnighan, Office of the Federal Public Defender, Chicago, Ill., for Garth Stennett.

Before BAUER, Chief Judge, COFFEY, and KANNE, Circuit Judges.

BAUER, Chief Judge.

From 1986 to 1988, Patrick J. McKenzie, John L. Wood, Ansel P. Allen, and Garth Stennett (collectively "Defendants") coordinated a drug importation and distribution network that operated in Miami, Denver, Chicago, and the Bahamas. The network paid female couriers to transport drugs and money to each location. Its members rented "guest houses," apartments, and local hotel rooms in which the couriers would stay during their repeated trips. With Wood's participation, McKenzie ran the Miami territory; Stennett and Allen orchestrated the network's activities from Denver. The drug ring operated in the following manner: One of its members would call a courier when she was needed for a trip. When the courier arrived at one of the targeted cities, someone would pick her up at the airport to transport her to the "guest house," apartment, or hotel room. There the courier would be given a package of cocaine or money to carry on her person. She then would be driven back to the airport to fly to another network city. Once at her destination, the courier again would be picked up and driven to a "guest house" to deliver her package to one of the members of the ring.

The scheme came to the attention of the authorities when agents of the Immigration and Naturalization Service ("INS") arrested Allen on an unrelated immigration matter in May, 1988. Linda Brown, whom Allen had recruited to be a drug courier in early November, 1987, posted his bond. After a special agent from INS questioned Brown about the bond, she decided to cooperate with the government in its investigation of Allen's drug-related activities. The information she provided led to a search of Allen's house that revealed guns, scales and weights, a passport, and false identification. Federal agents arrested Allen for his role in the drug distribution conspiracy on June 24, 1987.

Brown also tipped the government to the fact that McKenzie had contacted her to do a drug run between the Bahamas and Chicago. Agents from the federal Drug Enforcement Agency ("DEA") instructed Brown to contact them upon her return to inform them if she had packages or money. Stennett wired Brown money for her plane ticket, and she made the trip. Per the pre-arranged plan, when Brown returned to Chicago with three packages of cocaine, she contacted the DEA. Agents arrested McKenzie on July 4, 1988, at the hotel where the drug drop was to have been made. The DEA arrested Wood on September 9, 1988, outside the Miami "guest house." Stennett was arrested in Chicago on February 10, 1989.

On February 21, 1989, a grand jury returned an eighteen count superseding indictment charging McKenzie, Wood, Stennett, and Allen with violations of 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute cocaine), Sec. 846 (conspiracy to possess with intent to distribute in excess of 25 kilograms of cocaine), Sec. 952(a) (importation of cocaine), 960(a)(1) (importation of cocaine), and Sec. 963 (conspiracy to import cocaine). The government tried Defendants together in May, 1989, and the jury convicted McKenzie and Stennett on all counts. Wood was found guilty of conspiracy, importation, and possession with intent to distribute cocaine. The jury found Allen guilty of attempt and conspiracy to possess with intent to distribute cocaine, and importation and distribution of controlled substances. In this appeal, McKenzie, Wood, Allen, and Stennett challenge several aspects of their trial. We address each one in turn.

I. CONSOLIDATED ARGUMENTS

A. Prosecutor's Statement During Rebuttal

Initially, Defendants claim that the district court erred in denying their motions for a new trial. Defendants argue that a "grievous, fatal, and incurable" statement made by the prosecution at trial violated their fifth amendment privilege against self-incrimination and improperly shifted the burden of proof to them to prove their innocence. The statement came when, after the Government's initial closing argument and four hours of defense closing arguments, the prosecution stated during rebuttal: "At the conclusion of all the defense arguments it should be clear to you that if there is no evidence in support of a person's claim of innocence, then the law is argued. There was no evidence in this case favorable to the Defendants--." Counsel for each defendant objected to this comment. In a sidebar discussion with the judge and defense counsel, the Government apologized to the court for having suggested that the burden of proof was on the Defendants, and indicated that his statement had been "unintentional." The court denied a defense motion for a mistrial and instructed the jury to disregard the comment. In so doing, the court reminded the jury that "the defendants in a criminal case have no obligation to prove anything."

To decide whether a prosecutor's comments during rebuttal argument are so prejudicial as to warrant a new trial, we view the comments in the context of the entire record. United States v. Brantley, 786 F.2d 1322, 1330 (7th Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986). Our primary task is to determine whether the comments " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process,' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1985) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), and whether they affected the jury's ability to adjudge the evidence fairly and objectively. United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985).

We have held that a prosecution reference to the "uncontradicted" or "unrefuted" nature of the government's evidence may violate the defendant's fifth amendment privilege against self-incrimination if the remark has "the natural and necessary effect of calling the attention of the jury to [the defendant's] failure to testify." United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied sub nom. Lysczyk v. United States, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968). For example, if the defendant is the only witness who can rebut the prosecution's evidence, a comment that "there is no evidence in support of his claim of innocence" or "no evidence favorable to defendant" certainly draws the jury's attention to the defendant's absence from the witness box. When there is other evidence that links the defendant to the crime, however, such comments by the prosecutor would not "naturally and necessarily" remind the jury that the defendant had not testified. See United States ex rel. Adkins v. Greer, 791 F.2d 590, 597 (7th Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 586 (1986).

We have here the latter scenario. The overwhelming evidence adduced at trial was that Defendants arranged trips for the couriers, supplied them with drugs and money, transported them to and from airports, and arranged their stays in "guest houses" where money and drugs were exchanged. In total, the jury heard approximately three weeks of testimony and several hours of closing arguments. Thus the prosecutor's one stray remark, however unartful, would not have made much of an impact.

It also is important to keep in mind that the disputed statement was made during the prosecution's rebuttal of Defendants' closing arguments. Defendants' counsels had just reviewed for the jury their theory of the Government's case, including their view that the testimony of the cooperating witnesses ¹ was inherently unreliable and that the evidence linking Defendants to the conspiracy was circumstantial. The context suggests that the Government merely was editorializing on the weaknesses in that argument rather than commenting on Defendants' failure to testify. If a prosecutor's comment is "a fair response" to statements made by defense counsel, then there is no fifth amendment violation, United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 869, 99 L.Ed.2d 23 (1987), nor does the comment alter the burden of proof. United States v. Sblendorio, 830 F.2d 1382, 1393 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988). Moreover, immediately after the Government made the statement, the trial judge instructed the jury to disregard it and reminded them that the burden of proof at all times remained with the Government. In light of the entire record, we find that the comment did not so infect the trial with unfairness to violate due process, nor did it influence the jury verdict to merit the reversal of the convictions.

B. Special Verdict

Defendants join together in one other argument. They allege that the district court committed reversible error in refusing their request for a special verdict. Because sentences imposed under the Sentencing Guidelines factor in the amount of drugs involved in the offense, defense counsel requested that the...