U.S. v. Rutledge, s. 93-1122

• Decision Date: 03 January 1995
• Docket Number: Nos. 93-1122,93-2652 and 93-2653,s. 93-1122
• Citation: 40 F.3d 879
• Parties: 41 Fed. R. Evid. Serv. 402 UNITED STATES of America, Plaintiff-Appellee, v. Tommy L. RUTLEDGE, Shelly Henson, and Richard Hagemaster, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 879

40 F.3d 879

41 Fed. R. Evid. Serv. 402

UNITED STATES of America, Plaintiff-Appellee, v. Tommy L. RUTLEDGE, Shelly Henson, and Richard Hagemaster,

Defendants-Appellants.

Nos. 93-1122, 93-2652 and 93-2653.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1994.

Decided Nov. 10, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

3, 1995 in No. 93-1122.

K. Tate Chambers, Asst. U.S. Atty. (argued), Peoria, IL, for U.S.

Julia M. Gentile (argued), E.P.A., Springfield, IL, for Tommy L. Rutledge.

Spencer L. Daniels (argued), Peoria, IL, for Shelly Henson.

Jeffrey W. DeJoode (argued), March & McMillan, Macomb, IL, for Richard Hagemaster.

Before BAUER and FLAUM, Circuit Judges, and FOREMAN, ^* District Judge.

BAUER, Circuit Judge.

A jury convicted Tommy Lee Rutledge, Shelly Henson, Richard Hagemaster, and Stan Winters of conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846. Additionally, the jury convicted Rutledge of conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), possession of a firearm by a felon in violation of 18 U.S.C. Sec. 922(g), and using or carrying a firearm during the commission of a drug felony in violation of 18 U.S.C. Sec. 924(c). Rutledge, Henson, and Hagemaster appealed citing a surfeit of defects in their collective prosecution. Because we find no merit to their arguments, we affirm.

I. Facts

In November 1986, after his release from prison, Rutledge began dealing cocaine, a formative step that would soon develop into an extensive drug distribution network. From his base in Chicago, Rutledge would travel every two weeks to Astoria, Illinois to deliver up to two ounces of cocaine to Roger Malott. Soon thereafter, Rutledge moved to Youngstown, Illinois and put Malott to work for him, delivering cocaine and collecting debts resulting from drug sales. Rutledge's initial source of cocaine was Juan Gonzalez of Burlington, Iowa, an acquaintance of Rutledge's from prison and a member of the Latin Kings street gang based in Chicago.

Over the next several months, Rutledge convinced several people to join his enterprise, including Shelly Henson, Richard Hagemaster, Rick Bolen, Randy Mustread, Kim Mummert, Tom Crowe, and Stan Winters. At one point, to demonstrate to Bolen that he was a major drug dealer and to convince him to join his outfit, Rutledge showed Bolen fifty pounds of marijuana and one-eighth of a pound of cocaine stored in the trunk of his car.

Rutledge's methods of doing business were in many ways similar to those of his peers in the drug business. Firearms figured prominently in Rutledge's enterprise. Not only did he maintain a cache of weaponry to protect himself, his employees, and his inventory of drugs, Rutledge also trafficked in firearms. He was more than happy to trade firearms for cocaine and receive firearms in payment for cocaine shipments.

As if the constant presence of firearms was not enough, Rutledge used his connections with the Latin Kings (presumably forged during one of his stints in prison) to maintain control over his operation. He frequently invoked the name of the Latin Kings to intimidate employees and customers alike. Rutledge, however, reserved his most ominous invocation of the Latin Kings for his employees to ensure that no employee would implicate him in this drug enterprise. We will expand on Rutledge's use of this tactic shortly.

At some point during the course of his cocaine conspiracy, Rutledge changed the source of his cocaine; he began to buy cocaine from Roberto Laurel, a member of the Latin Kings in Chicago. Consistent with his modus operandi, Rutledge also traded arms with Laurel. To execute his transactions with Laurel, Rutledge would travel with, or send to Chicago in varying combinations, Malott, Mustread, Henson, and Mummert.

From November 1988 through July 1989, Rutledge's base of operations was a trailer he shared with Mummert, Henson, and Hagemaster in Youngstown. Rutledge supported these three and provided them with cocaine. At this time, Rutledge employed Malott and Crowe in addition to his roommates. Henson, however, moved out of the trailer in July 1989 and terminated her association with Rutledge.

Henson's departure was likely hastened when Rutledge was arrested in the trailer in July 1989 by the Illinois State Police on the basis of statements made by Malott that Rutledge was involved with drugs and guns. The arresting officers discovered Rutledge's cache of weapons, but apparently found no drugs. When he learned of Malott's statement to the police, Rutledge threatened Malott with serious harm if Malott testified against him in court. Rutledge made similar threats to Mummert. Rutledge's intimidation succeeded; both Malott and Mummert testified before a state grand jury that Rutledge was not involved with drugs or guns. Rutledge was subsequently released.

Rutledge continued his drug operation until he was arrested by federal authorities in December 1990. Rutledge, Henson, Hagemaster, and Winters were indicted in February 1991. Malott, Mummert, Mustread, and a frequent customer of Rutledge's, Michael Wright, cooperated with the government and testified as to their experiences with Rutledge and his drug ring.

II. Analysis

A. Tommy Lee Rutledge

Rutledge's first argument is that he was denied a fair trial because two or three jurors encountered Rutledge in handcuffs outside the courtroom during the course of the trial. He contends that the trial court should have voir dire 'd those jurors to determine whether Rutledge was prejudiced by this incident. As we shall explain, Rutledge received a trial as fair as possible given his own conduct, and the trial court handled the situation perfectly.

On the first afternoon of the trial, Rutledge made a statement to the Deputy United States Marshals to the effect of "what if I take off now?" ¹ While the deputies believed that Rutledge was not serious in his threat, they discussed the situation and decided that Rutledge must be handcuffed going to and from the courtroom. On the morning of the second day of the trial, the prosecutor brought this incident to the attention of the trial judge, who approved handcuffing Rutledge.

To ensure that no jurors saw Rutledge being taken out of the courtroom in handcuffs, the deputies adopted certain procedures for bringing Rutledge in and out of the courtroom. Prior to taking Rutledge out of the courtroom, one deputy would check the outer hallway to ascertain whether any jurors were present. If the hallway was clear, the deputies would then lead Rutledge out of the courtroom into that outer hallway. Unfortunately, these measures were not foolproof.

At one point during the trial, two or three jurors briefly saw Rutledge in handcuffs. The deputies followed the procedures they had adopted for Rutledge, but the jurors entered the hallway just after it was checked. It is unclear whether at first glance the jurors necessarily knew that Rutledge was handcuffed; just to make sure that none of the jurors missed it, Rutledge raised his handcuffed hands in an exaggerated manner to show the jurors his handcuffs. Rutledge was immediately led away so that no additional jurors were treated to a similar demonstration.

The parties immediately brought this incident to the attention of the trial judge. The trial judge then offered to give the jury a cautioning instruction regarding the incident. He continued:

What I would suggest is that I simply make a statement to the jury that it has come to my attention that some of the jurors may have become aware of the fact that he is in custody and that's a reality in this case and I will caution them that the fact that he is in custody should not in any way be considered by them as any evidence or suggestion of guilt. Is that how you want to handle it or would you suggest something else?

After conferring with his client, Rutledge's counsel stated: "We would like to just skip it, your Honor."

Rutledge claims that such a sighting by jurors of a defendant in handcuffs is inherently prejudicial. Therefore, he argues that a curative instruction from the trial judge is obviously insufficient and that, in this case, the trial judge, sua sponte, should have voir dire 'd the jurors in question. Rutledge did not request such a voir dire from the judge at the time it happened. We believe this omission combined with Rutledge's failure to present any evidence from which we might find that he suffered actual prejudice resulting from this incident demonstrates that this argument lacks merit.

While we believe that this may be the first time that we have been squarely presented with this issue, we recently noted that "[c]ourts have generally found inadvertent sightings of shackles by the jury to be insufficient to demonstrate prejudice." Woods v. Thieret, 5 F.3d 244, 248 n. 5 (7th Cir.1993) (citing Harrell v. Israel, 672 F.2d 632, 637 (7th Cir.1982) (citations omitted)). We therefore categorically reject Rutledge's argument that prejudice automatically inheres in a trial when a juror inadvertently sees a defendant in handcuffs. Our position is in accord with other circuits that have addressed this issue. See, e.g., United States v. Ware, 897 F.2d 1538, 1542 (10th Cir.), cert. denied, 496 U.S. 930, 110 S.Ct. 2629, 110 L.Ed.2d 649 (1990); United States v. Garcia-Rosa, 876 F.2d 209, 236 (1st Cir.1989); United States v. Halliburton, 870 F.2d 557, 561 (9th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 575 (1989). In situations such as this one, we hold that the defendant bears the burden of proving that he has suffered actual prejudice. See, e.g., Garcia-Rosa, 876 F.2d at 236. Here, neither Rutledge nor the record indicate that Rutledge has suffered actual prejudice.

The trial judge, in the best position to evaluate such things, stated on the record that he believed that Rutledge...