U.S. v. Smith
| Decision Date | 21 July 2006 |
| Docket Number | No. 04-3581.,04-3581. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marvin SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mel S. Johnson (argued), Christian R. Larsen, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Scott A. Srebnick (argued), Hy Shapiro, Quinon & Strafer, Miami, FL, for Defendant-Appellant.
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
In 1990, a jury found Marvin Smith guilty of one count of conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. The court allowed Smith to remain free on bond pending his sentencing. Smith never appeared for his sentencing hearing and remained at large for fourteen years. In 2004, the long arm of the law caught up with Smith and the district court sentenced him to thirty years' imprisonment. Smith appeals his conviction and sentence. We affirm his conviction but vacate his sentence and remand for resentencing.
Darryl Carter and Todd Thompson were Milwaukee-based drug dealers in the late 1980s. In the summer of 1987, when Thompson needed a new source for cocaine, Carter took him to Los Angeles to meet Kevin Diggs. Diggs was the cousin of Carter's common law wife. Carter knew Diggs well; he had lived in Los Angeles for many years and had previously purchased cocaine from Diggs for his personal use. On that first trip to Los Angeles, Thompson purchased a half kilogram of cocaine from Diggs for resale in Milwaukee. In the months that followed, Carter and Thompson returned to Los Angeles between four and eight times to purchase more cocaine. On some of these trips, Thompson purchased as much as two kilograms of cocaine from Diggs and one of his associates, Gwain Collins. In late summer 1987, Diggs told Carter and Thompson that they could obtain cocaine from a man known as "June" in Cleveland. Carter, Thompson and a third man, Terry Wynn, subsequently traveled to Cleveland to meet June. June fronted three kilograms of cocaine to Thompson and his associates. In the drug business, "fronting" involves providing drugs at no cost with the understanding that the purchase price will be paid later from the proceeds of sales to third parties.
Approximately one week after June fronted three kilograms to Thompson, Diggs came to Milwaukee to collect money that Thompson owed him from prior deals. Carter attempted to set up meetings between Thompson and Diggs but Thompson failed to show up for the meetings. Diggs was unconcerned about this turn of events until Vince Wynn, an associate of Carter, told him that June had been seen in Milwaukee visiting Thompson. Diggs became concerned that Thompson now had a new source and would not pay his debt to Diggs. Diggs called Thompson to demand payment immediately. Diggs then met with Collins, Carter and Wynn at a Milwaukee hotel to discuss Thompson's debt to Diggs. As a result of this discussion, Diggs became very angry and said he was going to call his uncle in Detroit for help in collecting the debt. The uncle, Marvin Smith, the defendant here, arrived the next morning. Smith was not actually Diggs' uncle; Smith and Diggs' father were close friends and Diggs had come to refer to Smith as his uncle. Smith, Carter and Diggs subsequently went to Thompson's house to discuss the debt. Following this visit, Carter delivered approximately $80,000 in cash to Diggs on behalf of Thompson. Later that fall, Carter delivered another $80,000 from Thompson to Diggs, in payment of this same debt.
In February 1988, Wynn brokered two thirty-kilogram cocaine sales from Diggs to a Milwaukee buyer named Jerome Mann. The next month, Wynn paged Diggs to set up another thirty kilogram purchase from Mann. Diggs called Wynn from Chicago and said he was on his way to Milwaukee to pick up the money for this transaction. Wynn obtained the money from Mann and delivered it to Diggs, Collins and Carter in Milwaukee. Once the money was paid, Wynn traveled to Chicago with Diggs, Collins, Carter and Anthony Heard, where they all checked in to a hotel. After checking in, Diggs told Wynn the cocaine had been sold to another party and they would have to travel to Detroit to pick up the thirty kilograms. The entire entourage drove to Detroit where, the next day, they visited Smith at his home. The money for the deal was delivered to Smith and counted in the presence of Diggs, Collins, Carter, Heard, Wynn and Smith. The meeting stayed in the mind of at least one of the participants because Smith was apparently very particular about the way he wanted the money stacked as it was counted. After the counting, Diggs and Collins gave Carter a suitcase filled with thirty-seven kilograms of cocaine. In addition to the bargained-for thirty kilograms, Diggs was fronting an extra seven kilograms to Wynn on credit. Carter and Heard then delivered the thirty kilograms to Mann in Milwaukee. Telephone records from this time period show dozens of calls between the parties from the various hotel phones, cell phones and Smith's home phone.
A few weeks later, Diggs called Wynn, ready to complete another deal. Wynn and Heard drove to Chicago and met with Mann's associates to pick up the money for the deal. The money was counted and delivered to Diggs and Collins. All the parties involved proceeded to a restaurant where Diggs delivered a suitcase full of cocaine to Wynn and Heard. Again a trail of telephone and hotel records showed connections among Mann, Heard, Collins, Wynn and Smith during this time period.
In 1989, Wynn was arrested and agreed to cooperate with authorities in setting up an undercover transaction with Diggs. At this point, Wynn did not have a current number for Diggs but was able to obtain Diggs' pager number from Collins. After paging Diggs, Wynn had a series of taperecorded telephone calls with Diggs, setting up a twenty-kilogram cocaine sale. Some of the calls were handled for Diggs by June. Although the location of the transaction changed many times, Diggs ultimately settled on Chicago. In August 1989, Diggs and June arranged for two men to deliver five kilograms of cocaine to Wynn's hotel room in Chicago. Authorities seized the cocaine and arrests ensued.
Smith testified at trial on his own behalf. He conceded that he had traveled to Milwaukee to help Diggs collect a debt but denied knowing that the debt was related to the sale of illegal drugs. He also conceded a passing acquaintance with some of the persons involved in these transactions but denied that he took part in any drug trafficking. The jury convicted Smith, the court allowed him to remain free on bond pending his sentencing and, as we noted earlier, he disappeared for fourteen years. On his return to custody, the district court sentenced him to thirty years' imprisonment. Smith's sentencing hearing occurred after this court's decision in United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (hereafter Booker I), but before the Supreme Court's final resolution of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (hereafter Booker II). The district court declined to use the Sentencing Guidelines in fashioning the sentence, instead turning to the relevant statutes in arriving at the final term of imprisonment. Smith appeals both his conviction and his sentence.
On appeal, Smith challenges the district court's limitations on his counsel's cross-examination of Darryl Carter, one of the witnesses against him. He contends that the district court violated his Sixth Amendment right to confront Carter by allowing the prosecutor to invoke Carter's already-waived attorney-client privilege in order to limit cross-examination. He also argues that the district court abused its discretion in allowing the prosecutor to impeach Smith with the nature of a nearly ten-year old conviction for possession with intent to deliver controlled substances. Finally, Smith challenges the district court's sentence, which failed to use the Guidelines as advisory and which exceeded the recommended Guidelines sentence without any justification.
A.
Among the people to testify against Smith was Darryl Carter, who had struck a very favorable deal with prosecutors in exchange for his testimony. On cross-examination, Smith's attorney pointed out that Carter was charged with distributing 103 grams (less than four ounces) of cocaine when in fact he admitted to distributing vastly greater quantities. During the defense counsel's questioning of Carter on the extent of his plea deal, the government objected to questions related to Carter's conversations with Carter's own lawyer. The court sustained the objections and restricted the cross-examination:1
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