U.S.A. v. Scott

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before COFFEY, RIPPLE and EVANS; RIPPLE
• Citation: U.S.A. v. Scott, 267 F.3d 729 (7th Cir. 2001)
• Decision Date: 04 October 2001
• Docket Number: Nos. 00-3130,00-3149,00-3150,s. 00-3130
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID SCOTT, CARL BUCHHOLZ, and GREGORY SUMPTER, Defendants-Appellants

Page 729

267 F.3d 729 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID SCOTT, CARL BUCHHOLZ, and GREGORY SUMPTER, Defendants-Appellants.

Nos. 00-3130, 00-3149, 00-3150

In the United States Court of Appeals For the Seventh Circuit

ARGUED FEBRUARY 27, 2001

DECIDED October 4, 2001

Appeals from the United States District Court for the Central District of Illinois, Springfield Division. No. 99-CR-30014--Jeanne E. Scott, Judge. [Copyrighted Material Omitted]

Before COFFEY, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

A jury convicted the defendants, David Scott, Carl Buchholz and Gregory Sumpter, of possession with intent to distribute marijuana in violation of 21 U.S.C. sec. 841. Scott and Buchholz also were charged with, and convicted of, carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. sec. 924(c). The defendants now appeal their convictions on numerous grounds. For the reasons set forth in the following opinion, we affirm the judgments of the district court.

I BACKGROUND

A. Facts

In the summer of 1996, Chad Little and friends, Tommy Smith and David Scott, discussed the difficulty of obtaining marijuana in the St. Louis area. Little agreed to contact a college friend who might be able to assist them in procuring marijuana for their own use and for resale. Little's college friend, unbeknownst to Little, was cooperating with law enforcement agents and put Little in touch with undercover officer Kelly Cain of the Drug Enforcement Administration. Little then engaged in ongoing negotiations with Cain to obtain up to 300 pounds of marijuana for redistribution in the St. Louis area.

To fund the venture, Little enlisted the assistance of Scott, Sumpter and Buchholz. For his part, Little contributed $500 and a motorcycle toward the purchase. The remainder of the purchase price was supplied by Scott ($500), Sumpter ($20,000) and Scott Carver ($3,000). Also, as part of the purchase arrangements, Little, Scott and Buchholz were to carry firearms to protect both the collateral and the contraband. On May 6, 1997, Little, Scott, Buchholz and Sumpter traveled from St. Louis, to Lincoln, Illinois to purchase the marijuana. Upon arriving in Lincoln and presenting the money and other items, all were arrested.

After their arrest, both Buchholz and Sumpter made statements concerning the nature of the arrangement. Specifically, Buchholz stated that he had assisted Little in renting a trailer to transport Little's motorcycle and that he knew that Little was going to use the motorcycle as partial payment for a marijuana deal. Buchholz, however, did not indicate when he had learned that the motorcycle would be used to purchase marijuana. According to the interviewing officers' testimony, Buchholz also said that Little had told him that he (Buchholz) might be needed to drive Little's vehicle and that his role was to provide security.

Sumpter told the interviewing officers that Little had been talking about the marijuana deal for about a week, that the deal was for a few hundred pounds, and that the motorcycle and cash were to be traded for marijuana. Sumpter stated that his role was to inspect the marijuana. Although Sumpter was unsure of his compensation for these efforts, he understood that Little would "take care of him." Tr. 766.

All of the defendants subsequently were charged with possession with intent to distribute marijuana; Buchholz and Scott also were charged with carrying a firearm during a drug trafficking offense. Little pleaded guilty to the charge, as well as federal money laundering charges pending in Missouri. The remaining defendants, Scott, Buchholz and Sumpter, pleaded not guilty and proceeded to trial.

B. District Court Proceedings

1. Voir dire

It came to the attention of the district court that Juror 99 had expressed concern that the defendants had access to the information provided on the juror questionnaires. Counsel for the defendants requested that the court ques tion Juror 99 about her comments, outside the presence of the other jurors. The district court granted the defendants' request. During the questioning, Juror 99 stated that she did not "think concern is the right word," but rather was curious as to "[w]hy the defendants were able to look through our questionnaires." Tr. 190. She further stated that the court had satisfied her concern or curiosity, and she believed that she could be fair and impartial.

Following the juror's questioning, counsel for the defense, who had exhausted their allotment of peremptory challenges, requested that the juror be removed for cause. The district court first intimated that it might grant the request if the defendants would agree to a trial by eleven as the jury pool had been exhausted. However, on reexamination, the district court determined that juror curiosity did not support a "for cause" challenge. Consequently, the court denied the request.

2. Witness testimony

During the trial, the key evidence was provided by Little and several drug enforcement agents. As a result, the primary defense strategy was to attack the credibility of Little and the agents to whom Buchholz and Sumpter had made their statements.

To counter the attacks on Little's credibility and the suggestions that he was biased in favor of the Government, the Government introduced the testimony of Special Agent William Scheitlin of the Internal Revenue Service concerning Little's cooperation in an unrelated drug and money laundering investigation in St. Louis, Missouri ("the St. Louis case").¹ Special Agent Scheitlin testified, over objection, that Little had cooperated in the prior case and that, due in part to Little's cooperation, several persons were indicted and one of the main targets of the investigation had pleaded guilty to various criminal offenses. Immediately following Special Agent Scheitlin's testimony, the district court gave the following instruction:

Ladies and gentlemen of the jury, the testimony of this officer that as a result of Mr. Little's assistance certain individuals entered pleas of guilty in the Missouri investigation does not give any rise to any inference that these Defendants here on trial are guilty. [T]he testimony is merely admitted to substantiate some of what Mr. Little has testified to. Again, it does not give rise to any inference that these defendants are, in fact, guilty.

Tr. 724-25.

The defendants also mounted an attack on the credibility of the arresting officers. Specifically, the defense suggested that the substance of the statements allegedly made by Buchholz and Sumpter came from information that the arresting officers had received in an earlier briefing about the transaction, and that the statements were not the words of the defendants. The defense also focused on the officers' questioning methods, their motivation in failing to use audio or visual recording devices, and their intent in discarding their original notes after completing the final report.

3. Instructions

At the instruction conference, the defendants tendered Pattern Federal Jury Instruction for the Seventh Circuit 5.11 ("Pattern Instruction 5.11"). Pattern Instruction 5.11 states:

(a)

A defendant's presence at the scene of a crime and knowledge that a crime is being committed is not alone sufficient to establish the defendant's guilt.

[A defendant's association with conspirators [or persons involved in a criminal enterprise] is not by itself sufficient to prove his/her participation or membership in a conspiracy [criminal enterprise].]

(b)

If a defendant performed acts that advanced a criminal activity but had no knowledge that a crime was being committed or was about to be committed, those acts alone are not sufficient to establish the defendant's guilt.

Pattern Fed. Jury Instruction for the 7th Cir. 5.11. The court believed that either the first or second paragraph of (a) was appropriate, but not both. As a compromise position, the district court gave as its instruction the first paragraph of (a) and all of (b).

4. Closing arguments

Prior to closing argument, the Government sought permission from the district court to argue to the jury that Buchholz's and Sumpter's statements to law enforcement agents were confessions. The defendants objected, but the district court allowed the Government to make the argument to the jury. The defendants, stated the court, were free to argue the opposite. During closing arguments, therefore, the Government's attorney attempted to characterize the statements as confessions.

The Government also spent some time during closing argument addressing the defendants' attack on the credibility of Little and of the law enforcement officers who testified. With respect to the officers, the Government argued:

You can take--certainly take all three of the defense closings that you've heard today, lump them in to two areas: incessant reference to Mr. Little, and out and out perjury by four law enforcement officers who testified before you. Those are the two areas that have been referred to over and over and over and over again.

. . .

The clear implication from [Sumpter's counsel's] closing, which has stemmed from the very beginning, from the opening, before any of these witnesses even testified, was that Inspector Eck and Officer Burke came in here, committed crimes by perjuring themselves.

Tr. 1322. The defense did not object to any of these statements.

The jury subsequently found the defendants guilty as charged on all counts.

II DISCUSSION

A. Testimony of Special Agent Scheitlin

On appeal, the defendants first argue that the district court allowed the Government to engage in impermissible "bolstering" of Little's testimony that deprived them of a fair trial. Specifically, the defendants' question the district court's admission of testimony by Special Agent Scheitlin concerning Little's cooperation in the St. Louis case; according to the agent's testimony, Little's...