U.S. v. Rogers
| Citation | 387 F.3d 925 |
| Decision Date | 05 November 2004 |
| Docket Number | No. 03-1870.,No. 02-3578.,02-3578.,03-1870. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Theodore D. ROGERS and Winfred Owens, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeal from the United States District Court for the Northern District of Indiana, James T. Moody, J.
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Dean R. Lanter (argued), Office of U.S. Atty., Hammond, IN, for Plaintiff-Appellee.
Luke A. Casson, Heather A. Wakefield (argued), Andreou & Casson, Chicago, IL, for Defendant-Appellant.
Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
Pursuant to a plea agreement, Theodore Rogers pleaded guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The plea agreement required him to testify at the trial of Winfred Owens. He later filed a motion to withdraw his guilty plea; the district court denied the motion. He now appeals that decision.
Mr. Rogers did testify at Mr. Owens' trial, and based in part on his testimony, Winfred Owens was convicted of multiple drug trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1) and 843(b), and of 18 U.S.C. § 1952. He appeals his conviction.
For the reasons set forth in the following opinion, we affirm the district court's denial of Mr. Rogers' motion to withdraw his plea, and we reverse the judgment of the district court with respect to Mr. Owens' conviction and remand the case for further proceedings.
On the evening of December 2, 2000, Rogers, a crack cocaine addict living in Kentucky, agreed to accompany his supplier, James Moorman, on a trip to Merrillville, Indiana. Rogers received some cocaine from Moorman for agreeing to make the trip. Rogers used the cocaine that night, and the pair set out for Merrillville on the morning of December 3, 2000. During the trip, Moorman made numerous calls on his cellular telephone. The two arrived at their destination, the Burger King parking lot in a Merrillville mall, later in the afternoon.
When the pair pulled into the parking lot, Moorman was on the telephone, and Rogers noticed an African-American male in the same lot, also talking on his cellular telephone. After they parked, Rogers exited the vehicle, and the other man took his place. Moorman and the man then drove away; Rogers ate at the Burger King and looked at some clothing in the mall. After about twenty-five minutes, Rogers returned to the parking lot in time to see Moorman return with the same African-American male. This passenger exited Moorman's vehicle, entered another waiting car, and drove away.
Rogers and Moorman switched places for the return trip, with Rogers driving. About thirty-five minutes later, as they traveled south on Interstate 65, Trooper Jason Carmin of the Indiana State Police observed Rogers' vehicle weave in its lane, cross by one to two feet the white ("fog") line separating the travel lane from the shoulder and then make an abrupt move to return to the correct side of the line. The trooper stopped the car and, as he approached it, noticed an odd, unidentifiable odor coming from the interior of the vehicle. When he asked for Rogers' license and registration, Trooper Carmin became more suspicious because Rogers and Moorman seemed nervous and avoided eye contact with him. Trooper Carmin also learned by radio that Rogers had several charges for possession of and trafficking in controlled substances. The trooper therefore summoned assistance and a drug-sniffing canine unit.
The dog alerted to the presence of drugs in the car, and its handler, Officer Myron Retske, let the dog inside the car. The officer eventually isolated the source of the scent—the vehicle's glove compartment— where he found a brick of cocaine wrapped in plastic and in a week-old Gary, Indiana newspaper. As Officer Retske searched the passenger compartment, other officers discovered two wads of currency, totaling approximately $2000 hidden in a spare tire in the trunk. A search of Moorman yielded an additional $660 from his front shirt pocket. Based on their discoveries, the police arrested Rogers and Moorman and impounded the vehicle.
On December 7, 2000, the police continued their search of the car, and discovered a cellular telephone registered to Moorman. In the phone's internal directory, the officers noticed two numbers with northwestern Indiana's "219" area code and a three-digit prefix for the city of Gary. One number had been programmed with the letters "W I N" identifying the owner. This number was registered to Crystal Bryant, who had purchased the cellular telephone associated with it for Owens; Owens had been in possession of this phone for approximately one year, from the fall of 2000 to the fall of 2001. Telephone records from Owens' phone indicated two calls to Moorman on December 2, and eight calls on December 3. Police subsequently found Owens' fingerprint on the Gary newspaper wrapped around the seized brick of cocaine, along with Moorman's fingerprint and several unidentified prints.
After his arraignment, Rogers moved to suppress evidence seized from the car. He asserted that the stop and search violated his rights under the Fourth Amendment to the Constitution of the United States. Before this motion was heard, however, Rogers decided to cooperate with the Government. In September or October of 2001, almost ten months after his arrest, he was shown some photographs and asked if any of them depicted the man who he had seen in the parking lot with Moorman.1 Rogers could not identify any photograph, but he gave a description of the man, along with a statement, and, on October 2, 2001, he petitioned the court to change his plea to guilty of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), in exchange for his cooperation. The district court scheduled a hearing for October 26, 2001, to determine whether to accept the guilty plea.
During the week preceding this hearing, FBI Special Agent Anthony Riedlinger had attempted to arrest Owens with the help of Owens' probation officer, Louis Fuentes, but had to wait until Owens returned from a cruise. Officer Fuentes, employing a ruse, convinced Owens to report to him in person. Officer Fuentes then notified Agent Riedlinger, who arrested Owens when he reported on October 26, 2001. Agent Riedlinger found Owens in possession of a key chain inscribed with the letters "W I N"—the letters programmed in Moorman's telephone.2 Owens was taken to a cell in the same federal courthouse where Rogers' plea hearing was scheduled for that day.
At his plea hearing, Rogers testified to the facts above.3 The district court accepted his guilty plea, and marshals then returned him to the holding cell.4 According to Agent Riedlinger, he told the marshals to ensure that Rogers and Owens were separated; nevertheless, Rogers found himself in the cell with Owens.
Rogers claims that, upon entering the cell, he recognized Owens as the man from the Merrillville parking lot. While the two occupied the cell, a probation officer entered and interviewed Rogers to begin his presentence investigation. At some point Agent Riedlinger arrived to talk with Rogers, saw the two men together in the cell, and immediately told the marshals to separate them.
In March 2002, Rogers moved to vacate his guilty plea. He contended that he did not have time or adequate counsel to make a voluntary decision to plead guilty and that he never received a hearing on his suppression motion. The Government countered that his unconditional guilty plea constituted a waiver of his Fourth Amendment claim, which mooted the suppression motion. The district court nevertheless held an evidentiary hearing, during which Rogers' counsel questioned Trooper Carmin and Officer Retske about the vehicle stop. The district court noted that both the evidence of record and Rogers' statements during the plea hearing indicated that he had adequate access to counsel. Accordingly, the court rejected the voluntariness challenge. The district court further determined his Fourth Amendment challenge to be baseless. Concluding that Rogers did not demonstrate a fair and just reason to change his plea, the district court denied his motion.
Owens was tried the same month. The Government introduced evidence of the facts we have just described, and Rogers testified against Owens. In his testimony, Rogers identified Owens as the man he had seen in the Merrillville parking lot and who drove away with Moorman. On cross examination, Rogers admitted that he remembered Owens better because he had spent time with him in the same cell on October 26. Asked to describe the man he saw on December 3, 2000, Rogers replied only that the man was "a black guy" and that to him "most black guys look alike."5 Tr.VI at 161-62.
Owens unsuccessfully objected to the in-court identification, contending that his placement in the cell with Rogers on October 26 was unduly suggestive. He also unsuccessfully moved for judgment of acquittal. At the end of the two-day bench trial, the court found Owens guilty on all counts. Owens then filed a post-trial motion for acquittal or for a new trial, again attacking Rogers' identification and the sufficiency of the evidence. The district court denied this motion. It determined that the identification procedures were reliable even if Rogers' placement in the same cell had been unduly suggestive. Rogers and Owens were sentenced to 51 and 97 months' imprisonment, respectively.
This court reviews the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir.2003). We review the district court's factual findings for clear error. United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). On Mr. Owens'...
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