U.S. v. Powers

• Decision Date: 08 February 1996
• Docket Number: No. 94-3745,94-3745
• Citation: 75 F.3d 335
• Parties: 43 Fed. R. Evid. Serv. 1103 UNITED STATES of America, Plaintiff-Appellee, v. Troy POWERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 335

75 F.3d 335

43 Fed. R. Evid. Serv. 1103

UNITED STATES of America, Plaintiff-Appellee, v. Troy POWERS, Defendant-Appellant.

No. 94-3745.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1995.

Decided Feb. 8, 1996.

Appeal from the United States District Court for the Central District of Illinois, Springfield Division; Michael M. Mihm, Chief Judge, No. 93 CR 30057.

Patricia A. Tomaw (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Michael B. Metnick, Richard D. Frazier, Fred Schlosser (argued), Metnick, Wise, Cherry & Frazier, Springfield, IL, for Defendant-Appellant.

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

A jury convicted Troy Powers of conspiring with Harrison Richard King, Aaron Pearl, and others to distribute controlled substances, including cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The district court sentenced him to 128 months imprisonment followed by five years supervised release. Powers appeals his conviction and sentence. We affirm.

Witness Testimony

At trial, the government called several witnesses to testify about their involvement with King's drug distribution business and about statements made by King incriminating Powers. Powers asserts various claims of error regarding that testimony.

a. Relevancy

The district court allowed Donnell Hill, Frank Stephenson, Michael Tate, Patrick Wallace, Dorothy Gragg, and Kent Wallace to testify about their involvement in a separate drug conspiracy with King. (The government conceded at trial that Powers was involved in a separate conspiracy with King, that Powers "did tend to compartmentalize himself from King's other distributors," and that he was not involved in King's "overall" conspiracy with these witnesses.) Each testified about his or her involvement in King's well-established drug business, including how King would pool his money with other distributors to buy larger drug quantities at a cheaper price, how King's associates (in particular Dorothy Gragg) would drive to Chicago to purchase cocaine from King's source, and how King and his associates would divide the cocaine among those who had contributed money.

In addition, the witnesses testified about how they came to know Powers through their involvement with King. For example, Hill, Tate, and Stephenson delivered to Powers cocaine that King had brought back from Chicago. At other times, they were present when King delivered cocaine to Powers. Powers helped King, Hill, Tate, and Stephenson divide large quantities of cocaine into smaller amounts. Hill picked up money from Powers and delivered it to King. Both Hill and Tate were present when King stopped at Powers' home to pick up money with which to purchase cocaine in Chicago. Gragg testified that she saw Powers give King money on two occasions. Further, Kent Wallace testified that he spoke with Powers and Pearl soon after federal agents conducted a seizure in Decatur, Illinois, and that Pearl and Powers told him that they lost $15,000 in that seizure.

Powers contends that the witnesses' testimony about their separate conspiracy with King was not relevant to Powers' conspiracy with King and Pearl. We generally review a challenge to the relevancy of evidence admitted by the district court for abuse of discretion. United States v. Robinson, 8 F.3d 398, 414 (7th Cir.1993). After reviewing the transcript, we have determined that defense counsel asserted foundation objections to parts of Hill's and Tate's testimony because they had not provided specific times for certain events or statements to which they testified, as well as several objections to the government's allegedly leading questions. However, the defense made no objections on relevancy grounds. Furthermore, much of the now challenged testimony occurred without any objection at all from the defense. Where, as here, no proper objection is made at trial, we review for plain error. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993); United States v. Mitchell, 64 F.3d 1105, 1111 (7th Cir.1995).

Here, the indictment charged Powers with knowingly conspiring with others, including King and Pearl, to distribute controlled substances. The government had to prove that the charged conspiracy existed, that Powers was aware of the common purpose of the conspiracy, and that he participated willingly. United States v. Monroe, 73 F.3d 129 (7th Cir.1995). The testimony elicited from the witnesses involved in King's drug distribution network provided background information that was relevant to proving Powers' knowing and willing participation in the charged conspiracy. For example, testimony about King's drug distribution organization at the time Powers asked for his assistance in establishing a drug business showed that Powers knew what King did and why Powers approached King. In addition, all of the witnesses (except Kent Wallace) testified that they saw Powers participate in specific drug activity, such as providing money to King or dividing large drug quantities into smaller amounts. Testimony about their involvement with King demonstrated how those witnesses came to see Powers participate in that specific drug-related activity. Defense counsel conceded at oral argument that some background information was necessary to prove the government's case, but that the extent of such testimony amounted to error. Even if we were to assume, for the sake of argument, that Powers had raised a proper objection, we nevertheless conclude that the district court did not commit error, let alone plain error.

b. King's Statements Incriminating Powers

Next, Powers challenges as inadmissible hearsay the admission of incriminating statements made about him by King. These statements generally involved either King's directions to his associates to deliver drugs to or pick up money from Powers, or King's descriptions of the drug activity between him and Powers. After reviewing the record, we conclude that Powers did not preserve this issue for appeal. ¹ We therefore review for plain error. United States v. Olano, 507 U.S. at 732-34, 113 S.Ct. at 1777.

In order for a statement made by a member of a conspiracy to be admissible against other members of the conspiracy under Federal Rule of Evidence 801(d)(2)(E), the government must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the statement was made during the course and in furtherance of the conspiracy. United States v. Stephenson, 53 F.3d 836, 842 (7th Cir.1995). King's directions to deliver drugs to or pick up money from Powers were admissible co-conspirator statements because a conspiracy between Powers and King existed and because those statements were made during the course and in furtherance of the conspiracy--they enabled King to carry out the drug distribution objective of his conspiracy with Powers. As for King's statements about his involvement with Powers, even if those statements were merely historical statements or idle chatter rather than admissible co-conspirator statements made in furtherance of King's conspiracy with Powers, see United States v. Doerr, 886 F.2d 944, 951 (7th Cir.1989), their admission nonetheless did not amount to plain error because it did not affect substantial rights. United States v. Haywood, 70 F.3d 507, 511 (7th Cir.1995). Exclusion of those statements would not have made a difference in the judgment. We need not disturb the district court's ruling.

c. Other Claims of Error

Powers also contends that the district court erred in allowing Kent Wallace to testify, over objection, that he spoke to Powers and Pearl after federal agents seized $69,000 in Decatur, Illinois. King and several others had pooled this money in order to buy cocaine. Unbeknownst to them, the drug source worked as an informant for the Drug Enforcement Agency (DEA). When King went to Decatur to purchase the cocaine, the DEA seized the $69,000. Wallace testified that on the day after the seizure, Powers and Pearl approached him and asked whether King had lost money in the sting operation. They then told Wallace that $15,000 of the $69,000 seized belonged to them. ² Powers contends that the district court erred in allowing Wallace to testify to this statement because it was inadmissible hearsay. The district court allowed Wallace to testify about the statement because it concluded that the statement was a co-conspirator statement made during the course and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). We review the district court's admission of co-conspirator statements pursuant to Rule 801(d)(2)(E) for clear error. United States v. Perez, 28 F.3d 673, 677 (7th Cir.1994).

The challenged statement occurred in April 1992, during the time that Pearl and Powers were involved in their conspiracy with King (their conspiracy ended in May 1992). Whether a particular statement tends to advance the objectives of the conspiracy must be determined by the context in which it is made. Garlington v. O'Leary, 879 F.2d 277, 284 (7th Cir.1989) (citation omitted). The statement need not have been made exclusively, or even primarily, to further the conspiracy. Id. Here, the statement that $15,000 of the $69,000 belonged to them came in the context of Pearl's and Powers' attempt to get more information about the Decatur seizure. They approached Wallace on the day after the seizure because they wanted to know if King had lost $69,000 in the Decatur sting. Given the context of the challenged statement, a reasonable basis exists for concluding that the statement furthered the conspiracy. Id. The district court did not clearly err in finding the statement satisfied the elements of Rule 801(d)(2)(E).

Powers finally argues that Tate's testimony lacked sufficient foundation because he could not give...