U.S. v. Nettles

• Decision Date: 12 February 2007
• Docket Number: No. 06-1304.,06-1304.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gale NETTLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

476 F.3d 508

UNITED STATES of America, Plaintiff-Appellee, v. Gale NETTLES, Defendant-Appellant.

No. 06-1304.

United States Court of Appeals, Seventh Circuit.

Argued October 2, 2006.

Decided February 12, 2007.

Brandon Fox (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

John T. Theis (argued), Chicago, IL, for Defendant-Appellant.

Before BOYCE F. MARTIN, JR., GIBBONS and SUTTON, Circuit Judges.^*

BOYCE F. MARTIN, JR., Circuit Judge.

Gale Nettles was charged with attempting to destroy the federal courthouse in Chicago, attempting to provide material support to terrorism, manufacturing counterfeit money, and distributing counterfeit money. After a jury trial, he was convicted on all charges except for attempting to provide material support to terrorism, and sentenced to 160 years. On appeal, Nettles alleges that the district court erred by refusing to transfer the proceedings to a different venue, denying Nettles's motion to sever the terrorism and counterfeiting counts, and denying Nettles's motion to prohibit introduction of tape-recorded conversations between himself and a non-testifying individual. For the reasons that follow, we AFFIRM the convictions.

I

The events leading up to this case began on September 5, 2002, when Gale Nettles was sentenced to a twenty-four month prison sentence after pleading guilty to the crime of counterfeiting United States currency. While incarcerated at the Federal Correctional Institute in Yazoo City, Mississippi, Nettles met fellow inmate Cecil Brown, a former rancher and auctioneer who was serving time for racketeering and fraud convictions. Nettles and Brown initially discussed the possibility of laundering counterfeit bills through Brown's business, but soon thereafter Nettles revealed that he had other plans in mind. Nettles asked Brown whether he had ever used ammonium nitrate, the substance used to blow up the Oklahoma City federal building, as a fertilizer in his ranching business. Nettles remarked that a larger bomb "could have brought the whole . . . building down."

In August 2003, Nettles and Brown began discussing Nettles's intent to bomb the federal courthouse in Chicago, the Dirksen Federal Building. Nettles told Brown that he was "[v]ery serious" about his plan, and explained the details, which included placing the bomb in a tractor-trailer, driving down a ramp to the building's dock, removing the trailer from the tractor, and driving off in the tractor.

Brown informed prison officials of Nettles's plan. These officials put Brown in touch with the FBI. Under the FBI's direction, Brown gave Nettles the phone number of an individual who was supposedly Brown's nephew and would be able to help Nettles obtain ammonium nitrate. This number was actually an undercover phone number at the FBI office in Shreveport, Louisiana. Upon his release in October 2003, Nettles went to Chicago. After calling a few times, Nettles was eventually put in touch with Gary Beasley, an undercover officer for the FBI, who was posing as Brown's nephew. Beasley claimed to be a Louisiana farmer with access to ammonium nitrate fertilizer.

On January 14, 2004, Beasley came to Chicago and met with Nettles. Nettles told Beasley that he wanted to build a bomb that would bring down the entire Dirksen Federal Building because he was upset with the federal judicial system and further, because the building blocked the view of the lake. During this conversation, Nettles revealed that he was into "graphic arts" and made money "the old-fashioned way," meaning that he manufactured counterfeit money. Nettles explained that his plan was to generate counterfeit money and use it to finance his bomb plan. Nettles also asked Beasley whether he was interested in buying counterfeit money.

Nettles and Beasley continued their correspondence over the phone. In March 2004, Beasley sent Nettles a computer and printer so that Nettles could print counterfeit currency. That same month, an informant hired by the FBI, Sylvia Anicua (who called herself "Maria") introduced herself to Nettles. When Nettles mentioned that he made counterfeit money, Anicua told Nettles that she knew someone who would be interested in purchasing it. Between May and July, Nettles made four deliveries of counterfeit money (totaling $52,200) to Anicua, in exchange for $5,500 in real United States currency which was supposedly from Anicua's contact. In July, Nettles sent a fifth shipment of $9,000 in counterfeit bills to Beasley. Beasley later told Nettles that in exchange for the counterfeit money, Beasley would provide Nettles with any amount of ammonium nitrate fertilizer that Nettles wanted.

Upon learning that he would be able to obtain the fertilizer, Nettles contacted Anicua and asked her if she knew anyone associated with Hamas or al-Qaeda. Anicua introduced Nettles to an undercover agent who was posing as a taxi driver and al-Qaeda member named "Ali." Nettles told Ali he would sell him a half-ton of ammonium nitrate for $10,000 and stated that this was the same substance used to bomb the Oklahoma City building. He told Ali that he had the federal courthouse in Chicago in mind as a target.

On July 26, 2004, Nettles informed Beasley that he had rented a locker at a storage facility for storing the ammonium nitrate fertilizer and stated that he would probably use it within the next six weeks. Nettles also told Beasley that he had met Hamas and al-Qaeda members and could get five or ten thousand dollars for selling them the fertilizer. Nettles told Anicua that he could get more fertilizer and asked her to find out how much Ali wanted. On July 31, 2004, Nettles, Anicua, and Ali met. Nettles described to them how to create a time bomb using diesel fuel and ammonium nitrate, and again mentioned that he had the Dirksen Federal Building in mind as a target. Nettles noted the "impact" it would make on the country if this happened while judges were inside.

On August 2, 2004, Beasley told Nettles that he had packed a ton of ammonium nitrate on his truck.¹ Two days later, Beasley picked up Nettles at his home in Chicago and drove to the locker Nettles had rented. Although Nettles and Beasley intended to unload a half-ton into the locker (reserving the other half-ton for sale to Ali), they were only able to place 537.5 pounds into the locker, leaving just under 1,500 pounds for Ali. Nettles directed Beasley to a location in a park where they agreed Beasley would park the truck the next day. Beasley was to then walk away and allow Nettles's al-Qaeda contact to remove the ammonium nitrate from the truck.

On the morning of August 5, 2004, Nettles met with Anicua and walked to the park. As planned, Beasley drove up, parked the truck in the park, and walked away. Nettles and Anicua observed through binoculars as undercover agents unloaded the fertilizer from Beasley's truck and placed it into another vehicle. After the truck was unloaded, Nettles and Anicua walked to Ali's taxi where Ali was waiting, and Ali paid Nettles $10,000. Soon thereafter, FBI agents arrested Nettles.

On September 1, 2004, a grand jury returned a nine-count indictment charging Nettles with attempting to destroy a federal building by fire and explosive (18 U.S.C. § 844(f)(1)), attempting to destroy a building used in interstate commerce by fire and explosive (18 U.S.C. § 844(i)), attempting to provide material support to terrorism (18 U.S.C. § 2339), manufacturing counterfeit currency (18 U.S.C. § 471), and five counts of transferring counterfeit currency (18 U.S.C. § 473).

II

Before trial, Nettles moved for recusal of the district court judge and transfer to another district. Both motions were denied. United States v. Nettles, 349 F.Supp.2d 1085, 1088 (N.D.Ill.2004). On appeal, the Seventh Circuit reversed in part, ordering that the district court judge recuse himself, but did not rule on Nettles's motion to transfer. The Court also decided to recuse all Seventh Circuit judges from hearing any subsequent appeal. In re Nettles, 394 F.3d 1001, 1003 (7th Cir.2005). District Judge John F. Keenan from the Southern District of New York was assigned to preside over the trial.

Nettles brought six pretrial motions, three of which are at issue in this appeal. The district court denied Nettles's motion to transfer, finding that there was no showing that Nettles could not receive a fair and impartial trial in the Northern District of Illinois. D. Ct. Op., June 29, 2005, at 5-6.

The district court also denied Nettles's motion for severance of counts, ruling that Nettles's counterfeiting activity was part of a common scheme and plan to destroy the Dirksen Federal Building, and that there was no unfair prejudice caused by joinder of the offenses. Id. at 5-6. Nettles also moved to preclude the government from playing at trial tape recordings of conversations between Nettles and other participants unless the government called these participants to testify. At the time, he did not know whether all persons on the tapes would be called as witnesses. The district court denied Nettles's motion, ruling that there is no Confrontation Clause violation where the statements are used for purposes other than establishing the truth of the matter asserted. Id. at 7-9. Nettles was convicted by a jury on September 15, 2005, on all counts but the count for attempting to provide material support to terrorism. He was sentenced on January 12, 2006, to eight consecutive terms of 20 years each, for a total of 160 years.

III

Nettles sought a transfer of venue under Fed.R.Crim.P. 21(a), which requires a change of venue "if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there." The district court denied the request, noting that the jurors in Nettles's case would not have been jurors at the time Nettles intended to destroy the courthouse, that the...