U.S. v. Rollins

• Citation: 862 F.2d 1282
• Decision Date: 10 January 1989
• Docket Number: Nos. 86-2905,87-1176,s. 86-2905
• Parties: 27 Fed. R. Evid. Serv. 218 UNITED STATES of America, Plaintiff-Appellee, v. Kelly ROLLINS and Dan Slaughter, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1282

862 F.2d 1282

27 Fed. R. Evid. Serv. 218

UNITED STATES of America, Plaintiff-Appellee, v. Kelly ROLLINS and Dan Slaughter, Defendants-Appellants.

Nos. 86-2905, 87-1176.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 30, 1987.

Decided Nov. 21, 1988.

Rehearing and Rehearing En Banc Denied Jan. 4, 1989.

As Amended Jan. 10, 1989.

Mark D. DeBofsky, Chicago, Ill., for defendants-appellants.

Bobbie McGee Gregg, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FLAUM, EASTERBROOK and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Defendants-Appellants, Dan Slaughter and Kelly Rollins, were convicted of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1); traveling in interstate commerce with intent to distribute cocaine in violation of 18 U.S.C. Sec. 1952(a)(3); and conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846. Slaughter was also convicted of four additional counts of unlawfully using a communication facility to further the distribution of cocaine in violation of 21 U.S.C. Sec. 843(b). On appeal, the defendants raise numerous alleged errors which they argue require the reversal of their convictions and sentences. While we affirm both convictions, we remand Slaughter's case for a reconsideration of his sentence.

I.

On January 14, 1986, Robert Wright, a Special Agent for the Federal Bureau of Investigation (FBI), met with a government informant named Eddie Wells at the Cook County Jail. At that time, Wells agreed to cooperate with the FBI by attempting to arrange a drug transaction with Dan Slaughter. On January 14, Wells placed the first of a series of six telephone calls to Slaughter to try to set up the drug deal. Agent Wright monitored and taped each of these telephone conversations with Wells' consent.

During the course of these conversations, Wells arranged to buy drugs from Slaughter; Wells and Slaughter used code words to establish the substance, quantity, and price. Agent Wright testified that the final agreement that Wells and Slaughter reached was for Slaughter to sell Wells two ounces of cocaine at $1,500 per ounce. Wells also promised to repay $1,700 that his wife Sharon owed to Slaughter. Slaughter agreed to deliver the cocaine on January 28, 1986, at 4:30 p.m. at the White Castle Restaurant on the corner of North and Central Avenues in Chicago.

On January 28, 1986, several FBI agents staked out Slaughter's and Rollins' residence in Racine, Wisconsin. At 1:23 p.m. Slaughter and a white female left Slaughter's and Rollins' house in a black Chevrolet truck and drove to a warehouse. The FBI agents identified Slaughter as the driver of the truck, but they could not identify his female passenger. At the warehouse, Slaughter went into a storage area, and remained inside for about thirty-five minutes. Slaughter and his passenger then returned to Rollins' and Slaughter's house.

At 2:45 p.m. Slaughter and the same passenger again left the house in a black Chevrolet truck. The agents followed the truck from Wisconsin to Illinois on Interstate 94. The agents dropped their surveillance once the truck reached Gurnee, Illinois. Slaughter and his passenger were later observed by a second group of FBI agents when they reached the White Castle Restaurant on the corner of North and Central Avenues in Chicago. At the restaurant, undercover FBI Agent Terri Beck was able to identify Slaughter's female passenger as Kelly Rollins.

Wells arrived at the White Castle Restaurant with Agent Beck at approximately 4:40 p.m. When Wells and Agent Beck arrived, Slaughter was inside the restaurant and Rollins was seated on the passenger side of the black Chevrolet truck. Agent Beck went inside and told Slaughter that Wells wanted to speak with him in the parking lot. When Slaughter and Agent Beck returned to the parking lot, Wells talked to Slaughter for a few moments; eventually, Slaughter asked Wells if he had the money with him. At that point, Agent Beck indicated that she was carrying the money and opened her purse to show it to Slaughter. Slaughter told her to put the money away and to go to the black truck and talk to "K.R."

Agent Beck walked over to the truck, got inside and had a brief conversation with Rollins; however, no drug sale took place. After a few moments had passed, Wells and Slaughter motioned to Agent Beck to return to the car, and she did so. A few minutes later Beck returned to the truck and this time she opened her purse to show Rollins the money. Agent Beck counted out $1,700 which Rollins confirmed was in payment of Sharon Wells' debt to Slaughter. Agent Beck counted out an additional $3,000 and asked Rollins whether the price for the cocaine was still $1,500 per ounce. Rollins confirmed that the correct price was $1,500 per ounce, took the money, and then placed two plastic bags on the front seat of the truck for Agent Beck to take. Each bag was later found to contain one ounce of cocaine.

Wells and Slaughter had several more telephone conversations after the White Castle meeting. During these conversations, which Agent Wright also monitored and taped with Wells' consent, Slaughter asked Wells whether the cocaine had been acceptable and they made arrangements for a second cocaine sale. Once again, Slaughter and Wells used code words to establish the substance, quantity, and price. Agent Wright testified that Slaughter agreed to sell Wells half a kilogram of cocaine for $22,000; Slaughter was to deliver the cocaine at 2:30 p.m. on January 29, 1986, at a gas station on Dempster Avenue in Skokie, Illinois. On January 29, before the second transaction took place, Rollins and Slaughter were arrested by FBI agents near Zion, Illinois. At the time of their arrest, Rollins and Slaughter were in a black Chevrolet truck. The arresting FBI agents seized two telephone beepers from the truck which were admitted into evidence at trial over the defendants' objection. ¹

On February 28, 1986, a grand jury returned a seven count indictment against Rollins and Slaughter. On August 13, 1986, a jury convicted Rollins on all three counts of the indictment with which she was charged, and convicted Slaughter on all seven counts of the indictment. On November 7, 1986, Judge Holderman sentenced Rollins to six months' imprisonment, a special parole term of five years, and five years' probation. The special parole term and probation run concurrently with one another, but consecutive to the six months' imprisonment. On January 16, 1987, Judge Holderman sentenced Slaughter to several separate, but concurrent terms of incarceration, the longest of which was ten years; ordered him to pay a $125,000 fine; and sentenced him to five years' probation consecutive to his jail terms.

Judge Holderman also imposed a special parole term for life on Slaughter. One condition of Slaughter's special life parole prohibits him from associating with any person known to possess firearms or narcotics or known to be a convicted felon. As a result, Slaughter is forbidden to see or marry Rollins, to whom he was engaged at the time of trial, because she is known to be a convicted felon.

Rollins challenges her conviction on three grounds. She contends that: (1) the district court erred in denying her motion to sever her trial from Slaughter's trial; (2) the court erred when it allowed Special Agent Wright to testify as an expert witness; and (3) there was insufficient evidence to establish her guilt beyond a reasonable doubt. We affirm.

Slaughter challenges his conviction on the grounds that the district court erred when it: (1) permitted the introduction into evidence of tape recorded conversations that Slaughter had with Wells, an available out-of-court declarant, in violation of Slaughter's sixth amendment right to confront the witnesses against him, and in violation of the rule against hearsay; (2) allowed Special Agent Wright to testify as an expert witness; (3) admitted into evidence proof of other crimes, wrongs, or acts in violation of Federal Rule of Evidence 404(b); (4) denied Slaughter's request for a missing witness instruction; (5) failed to hold an evidentiary hearing on Slaughter's motion to suppress certain evidence; and (6) sentenced him to a special parole term for life that effectively prohibits him from marrying Rollins. We affirm Slaughter's conviction, but remand his case to the district court for a reconsideration of his sentence.

II.

Rollins' first argument on appeal is that the evidence presented against her at trial was insufficient to establish her guilt beyond a reasonable doubt. She contends that the evidence was insufficient on the cocaine distribution counts because Agent Beck's in-court identification of Rollins was not definite. Rollins claims that the evidence was insufficient on the charge that she traveled in interstate commerce with intent to distribute cocaine because the government failed to introduce any evidence to establish that she actually traveled from Wisconsin to Illinois. We disagree with both contentions.

When reviewing a claim that the evidence at trial was insufficient to establish guilt beyond a reasonable doubt, we must determine whether, "viewing the evidence and all reasonable inferences in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Goudy, 792 F.2d 664, 674 (7th Cir.1986) (quoting United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985)). "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there was substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see also Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); United States v....