U.S. v. McMahan

• Decision Date: 20 July 2007
• Docket Number: No. 05-3379.,No. 05-3645.,No. 05-3667.,No. 05-3739.,No. 05-3648.,05-3379.,05-3645.,05-3648.,05-3667.,05-3739.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. DeAngelo McMAHAN, Brian Nelson, Antonio McMahan, Deshun Smith, and Gino McMahan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 410

UNITED STATES of America, Plaintiff-Appellee, v. DeAngelo McMAHAN, Brian Nelson, Antonio McMahan, Deshun Smith, and Gino McMahan, Defendants-Appellants.

No. 05-3379.

No. 05-3645.

No. 05-3648.

No. 05-3667.

No. 05-3739.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 2007.

Decided July 20, 2007.

Michael Donovan (argued), Office of the U.S. Attorney, Chicago, IL, for Plaintiff-Appellee.

Edward M. Genson, Genson & Gillespie, Marc E. Martin (argued), Chicago, IL, for DeAngelo McMahan (Dkt. 05-3379).

Thomas L. Shriner, Jr., Foley & Lardner, Milwaukee, WI, Glen H. Kanwit, Thomas K. Anderson (argued), Foley & Lardner, Chicago, IL, for Brian Nelson (Dkt. 05-3645).

Steven Saltzman (argued), Chicago, IL, for Antonio McMahan (Dkt. 05-3648).

Gerald J. Collins (argued), Chicago, IL, for Deshun Smith (Dkt. 05-3667).

T. Lee Boyd, Jr. (argued), Chicago, IL, for Gino McMahan (Dkt. 05-3739).

Before EASTERBROOK, Chief Judge, and RIPPLE and EVANS, Circuit Judges.

EVANS, Circuit Judge.

The five defendants in this case were part of a long-term, well-established drug business near the corner of Washington and Waller on the west side of Chicago. In particular, they operated out of a clothing store called 600 Collections. They were pretty much a full-service operation, selling heroin, cocaine, cocaine base, and marijuana. The operation began in 1988 and continued until, through wiretaps on cell phones, surveillance of the locations, informants, and other investigative practices, agents of the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Chicago Police Department put them out of business in 2004. They were charged in count 1 of an 11-count second superseding indictment with conspiracy to possess with the intent to distribute narcotics, in violation of 21 U.S.C. § 846. Other charges against them individually and in various combinations include substantive distribution counts, in violation of 21 U.S.C. § 841(a)(1), and using a communication facility to commit a drug trafficking crime, in violation of 21 U.S.C. § 843(b).

Four of the defendants, all except DeAngelo McMahan, were convicted of conspiracy. In addition, Antonio McMahan was convicted of distribution of cocaine, two counts of distributing heroin, and three counts of violating § 843(b). He was acquitted on one distribution count. He was sentenced to a prison term of 324 months. In addition to conspiracy, Deshun Smith was convicted of two counts of § 843(b) violations. He was sentenced to 92 months in prison. Gino McMahan was convicted of conspiracy and a substantive count of distribution of cocaine. He was acquitted of two § 843(b) charges. His prison sentence is 312 months. Brian Nelson was convicted of conspiracy but acquitted of two counts of § 843(b) violations. He was sentenced to 250 months in prison. Finally, DeAngelo McMahan — as we said — was acquitted of the conspiracy charge as well as one count of violating § 843(b). He was convicted of one § 843(b) charge. His sentence is 48 months.

The defendants raise a number of issues on appeal, many of which are applicable to all of them.

The first issue involves testimony about wiretap procedures. Defendants contend that admission of certain testimony of Special Agent Mark Horton of the FBI, the case agent in charge of this investigation, was an abuse of discretion. Part of Horton's testimony set out the procedures used to obtain approval to wiretap a suspect's telephone conversations. Under these procedures, the agents prepare an affidavit in support of a request for a court order allowing the wiretapping. The affidavit is reviewed by the local United State's Attorney's office, after which it is sent to the Department of Justice in Washington for its approval of the request. After DOJ approval is received, the request is presented to the chief judge of the relevant district for consideration. If an order allowing the interceptions is signed, monitoring can begin. Horton went on to explain that every 10 days a report must be prepared for the chief judge's review to see whether the wiretaps reveal criminal activity so that the interception can continue. Horton testified that there were wiretaps on five different cell phones from December 2003 to March 2004.¹ The jury instructions stated that the wiretap conversations "were legally intercepted by the government."

Defendants are correct that our decision in United States v. Cunningham, 462 F.3d 708, 709-10 (7th Cir.2006), holds that testimony almost identical to Horton's was inadmissible. We said that the testimony

suggested to the jury that a panel of senior government lawyers in the Office of the Attorney General in Washington, D.C. and others in law enforcement were of the opinion that there was probable cause to believe the defendants were indeed engaging in criminal activity. The admission of this irrelevant evidence had the effect of improperly bolstering the credibility of the government's case in the eyes of the jury, and the error was not harmless.

The difference between that case and this one, however, is that in Cunningham there was an objection to the testimony, making our review for an abuse of discretion. Here — though defendants argue otherwise — there was no objection. For that reason, our review is only for plain error, a much harder row for the defendants to hoe.

In an attempt to escape plain error review, the defendants argue that (1) a motion in limine the government filed before trial and (2) an objection on another basis lodged somewhat late in the testimony require a finding either that no objection was needed at trial or that, in fact, an objection was made. We cannot agree with either proposition.

The government's motion in limine sought to preclude testimony challenging the legality of the wiretaps. The district judge (Amy J. St. Eve) ordered that

[t]he government's motion to preclude testimony regarding the legality of the Title III wiretap is granted. Defendants have not challenged the legality of the Title III wiretap in court. If they wish to challenge the legality of the wiretap, the only proper way to do so is to raise it with the court, not the jury.

The defendants say that this order sufficiently preserves the issue of Horton's testimony for appeal. Unfortunately for them, it does not.

In Wilson v. Williams, 182 F.3d 562 (7th Cir.1999), we considered the circumstances under which a pretrial objection eliminates the need for a simultaneous objection at trial. The concern surrounding the issue is at least two-fold — to prevent trapping an unwary attorney who doesn't repeat at trial an objection he raised before trial and, at the same time, to prevent both the judge and the adversary from being sandbagged and allowing preventable errors from occurring. We said that only "arguments that were actually presented to the district court before trial are preserved for appeal — and then only if the district judge came to a definitive conclusion." At 567. We added that a "ruling on a particular use of evidence does not preserve an objection to a different and inappropriate use." Id.

In the present case, the government's motion in limine, which sought to preclude testimony regarding the legality of the wiretap, does not preserve for the defense an objection to testimony regarding the process for obtaining a wiretap order. The testimony Horton gave deals with the wiretap application process, not the ultimate legality of the wiretaps. The testimony did not delve into the affidavits in support of the application and the facts on which the government claimed it had probable cause for a warrant. The order the judge issued merely informed the defendants that if they wished to suppress the wiretap evidence in this case, they had to do so by filing a motion to suppress for her consideration. The issue could not be raised before the jury. The order did not preserve the issue of the inadmissibility of Horton's testimony.

The defendants also claim that they did, in fact, object to the testimony. The best that can be said for this claim is that there was an objection during the testimony. But it was not lodged when the testimony began and it was not on point. What happened was that, in response to questioning, Horton set out the procedures for obtaining the wiretap. The prosecutor then asked him about the 10-day review process:

Q. Now, as the calls are being — began to be recorded on this wiretap that we're discussing, did you make a determination as to the content of the calls in order for the interception to continue past that ten-day mark or within that ten-day mark?

A. Yes.

Q. And what was that determination on the wiretap — the first wiretap?

A. That criminal conversations were —

MR. BOYD: Objection.

MR. COLLINS: Objection, Judge.

MR. BOYD: Conclusion, Judge.

THE COURT: Sustained. . . . Rephrase your question.

The inadequacy of these objections to preserve the issue before us is self-evident. The objection gives no indication to the judge that the defense is claiming that the entire line of questioning is improper. And so, because there was no proper objection to the testimony, our review is for plain error. United States v. Gray, 410 F.3d 338 (7th Cir.2005).

For us to find plain error, the defendants must show (1) error, (2) that is plain, (3) that "affects substantial rights," and (4) that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Gray, at 345; United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

The first two requirements are met: there was error and it was plain. The problem for the defendants is that the testimony cannot be said to have affected their substantial rights, nor did it affect the fairness and integrity of the trial. The evidence of the defendants' criminal activity was substantial. It showed a conspiracy among Antonio and Gino McMahan, Smith, and Nelson. Gregory Hudgins, ...