U.S. v. Sanders, 91-2152

• Decision Date: 15 December 1992
• Docket Number: No. 91-2152,91-2152
• Citation: 979 F.2d 87
• Parties: 37 Fed. R. Evid. Serv. 60 UNITED STATES of America, Plaintiff-Appellee, v. Willie Curtis SANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 87

979 F.2d 87

37 Fed. R. Evid. Serv. 60

UNITED STATES of America, Plaintiff-Appellee, v. Willie Curtis SANDERS, Defendant-Appellant.

No. 91-2152.

United States Court of Appeals Seventh Circuit.

Argued June 5, 1992.

Decided Oct. 28, 1992.

Rehearing Denied Dec. 15, 1992.

Barry R. Elden, Asst. U.S. Atty., Mark S. Hersh (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Edward M. Genson, Marc W. Martin, Leonard Goodman (argued), Genson, Steinback, Gillespie & Martin, Chicago, Ill., for defendant-appellant.

Before COFFEY and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

FLAUM, Circuit Judge.

On October 27, 1989, Janet Catledge and Cheryl Davis drove into the parking lot of Mr. Philly's, a restaurant at 165th and Halsted. After examining what they thought was five kilograms of cocaine, they handed nearly ninety thousand dollars to a man they knew as Doc. As it turned out, the "cocaine" was plaster of Paris, and "Doc" was undercover DEA agent Calvin Holliday. Both women were arrested. In April of 1990, Catledge and Davis told a federal grand jury that Willie Curtis Sanders supplied the money for the buy. Sanders maintained his innocence and proceeded to trial where his two co-conspirators, Catledge and Davis, testified against him. He appeals from his conviction and sentence for conspiracy and attempt to possess with intent to distribute cocaine. For the following reasons, we affirm.

I.

In 1989, Ricky King contacted Janet Catledge who did not know that King was cooperating with the DEA in Florida. She agreed to find someone interested in buying kilogram quantities of cocaine. This began what is sometimes called a reverse sting, in which the government catches drug dealers by posing as the seller, instead of as the buyer. Catledge contacted Cheryl Davis, characterized at trial as Sanders' girlfriend, and Davis communicated the terms to Sanders. Over the course of five months, Catledge negotiated the main deal, that Sanders would buy five kilograms of cocaine from King, with delivery in Chicago. Sanders agreed to the deal and brought the money to Davis' apartment. Final arrangements were made among King and the co-conspirators (and the DEA agents), and the women set off in separate cars for the restaurant parking lot.

There were several side agreements to the main deal. King agreed to pay Catledge $2,500 for locating the buyer for him. Catledge and Davis agreed to misrepresent the price to Sanders, as $18,500 instead of $17,500 per kilogram, and split the additional $5000. Sanders agreed to pay Davis $3000 to take the risk of delivering the money to King's courier. King and the DEA agents agreed to misrepresent Agent Holliday as King's driver "Doc". This resulted in neither King nor Sanders being present during the attempted transfer of cash and drugs, although the deal was between them. Nevertheless, none of this tangential wheeling and dealing created a reasonable doubt for the jury that Sanders was the buyer behind Catledge and Davis.

II.

The appellant argues that his conviction should be overturned on four grounds. The first is the trial court's error in admitting the testimony of Catledge and Davis regarding conversations they had with Sanders about cocaine prior to the conspiracy. Catledge testified that she thought Sanders would be interested in purchasing cocaine from King because he had asked her a few years earlier if she knew any suppliers. Specifically, Catledge discussed the price of kilograms of cocaine with Sanders in several conversations at his auto repair shop in 1987. Sanders asked, according to Catledge's testimony, if she knew anyone "[i]n Florida that was handling large quantities of cocaine." Tr. at 100.

Cheryl Davis testified that she asked Sanders what he meant when he mentioned "drywall" during a telephone conversation that she overheard. Sanders told her "drywall" was cocaine. Davis testified that she had heard Sanders use this term "[s]everal times" during telephone calls he placed from her apartment in the spring of 1989. Tr. at 354-55.

The trial court's decision to admit prior bad act evidence under Federal Rule of Evidence 404(b) is reviewed under an abuse of discretion standard. United States v. Cox, 923 F.2d 519, 523 (7th Cir.1991); United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989). Rule 404(b) permits the admission of evidence of other "crimes, wrongs, or acts" not to "prove [a person's] character in order to show action in conformity therewith," but for "proof of motive, opportunity, intent" or related purposes. Fed.R.Evid. 404(b). "The overall, governing criterion of [our] analysis ... is that there 'must have been a principled exercise of discretion' by the district court." Zapata, 871 F.2d at 621 (quoting United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir.1987)).

The district court in this case explained its reasons for admitting the evidence in some detail, referring to Cox specifically, addressing the appellant-defendant's challenges, and eliciting further argument from both sides. Catledge's testimony showed the context of her relationship with Sanders prior to the conspiracy and why she would seek out Sanders as a potential cocaine buyer. Davis' testimony, which concerned a specific conversation just weeks before the indicted activity, explained to the jury why she also considered Sanders a prospective cocaine buyer. ¹ In both cases, the relevance to the charged conspiracy and the timing of the conversations convinced the trial court that the probative value outweighed any prejudicial impact. In addition, the trial court exercised its discretion in keeping out testimony regarding alleged petty drug transactions between Catledge and Sanders in the early 1980s, ruling that the time gap caused the prejudicial impact to outweigh the probative value of the evidence. The record shows a principled and canny exercise of discretion by the district court in admitting the testimonial 404(b) evidence.

The appellant's second argument concerns testimony that Sanders' former lawyer visited Catledge and Davis at the Metropolitan Correctional Center. Davis testified that a lawyer named Flader, ² claiming to represent Sanders, asked them if they had made statements to the police. The appellant objected at the time, and the admissibility was discussed at sidebar. Later, outside of the jury's presence, the government offered an appearance form filed by Flader on Sanders' behalf, and the appellant withdrew his objection to the testimony in order to prevent the admission of the form. The record shows that the government also wanted to offer the form to refute the implication, brought out on recross, that Flader knew both Sanders and another friend of Catledge and Davis whom the defense theorized as the true co-conspirator. The next day, the appellant moved to strike Davis' testimony regarding Flader.

The district court initially admitted the testimony after finding that it had probative value because it tended to prove Sanders' involvement in the conspiracy, especially on the heels of Davis' cross during which the defendant attempted to implicate another man as the third conspirator. The court considered the government's representations that Flader had filed an appearance on behalf of Sanders and had appeared at preliminary proceedings before concluding that the out of court statements were admissible under the party's agent exception to the hearsay rule. Fed.R.Evid. 801(d)(2)(D). When the district court later denied the motion to strike the testimony, it specifically considered United States v. Harris, 914 F.2d 927 (7th Cir.1990). Remarking on the sensitivity with which the attorney/client relationship should be handled, the district court refused to admit the appearance form as long as the defendant did not contest the fact that Flader had been Sanders' lawyer.

In many ways, the situation in this case parallels the facts in the Harris case. In both cases, the lawyer spoke to the witness in order to develop a defense strategy. Both lawyers took a calculated risk in approaching an individual who might well testify against his client. The fact that the strategy backfired does not mean that advocacy will be chilled; lawyers constantly make tactical decisions in preparation for trial, weighing the risks and benefits of each. Importantly, in both cases the defendant's trial counsel was not the lawyer about whose statements or actions the witness testified. Therefore, the effectiveness of the defendant's representation at trial was not compromised by the admission of the evidence. Moreover, the testimony did not impair the defendant's privilege against self-incrimination in either case; it simply "force[d the] defendant to present a competing explanation to the jury." Harris, 914 F.2d at 931. In this case, the defendant's explanation fit in neatly with the defense theory that the other man who knew Catledge and Davis also knew Flader and was the true co-conspirator.

On the other hand, one important fact distinguishes this case from Harris: Sanders had no need for a lawyer when Flader visited Davis, unless he conspired with the women. While the defendant in Harris had been arrested and charged before his lawyer visited the witness, Sanders would not be indicted until months later. Flader filed an appearance on his behalf in April, approximately five and a half months after Flader spoke with Davis at the MCC. The fact of Flader's representation, therefore, arguably "reveal[§ Sanders'] motive for seeking legal advice." Matter of Grand Jury Proceedings, Cherney, 898 F.2d 565, 568 (7th Cir.1990). ³ As this circuit has held, where disclosure of a client's identity would "convey the substance of a confidential communication," the attorney/client privilege may be invoked to prevent such disclosure. Id. at 569.

The first prong of the appellant's argument, that the government presented no evidence to...