U.S. v. Tanner
| Decision Date | 09 February 2011 |
| Docket Number | No. 09-2370,09-2370 |
| Citation | 628 F.3d 890 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles TANNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel L. Bella (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
Andrea E. Gambino (argued), Gambino & Associates, Chicago, IL, for Defendant-Appellant.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
Appellant Charles Tanner abandoned a promising career in boxing to become a major player in a conspiracy to distribute large amounts of cocaine. Like many other drug dealers, Tanner was caught when his co-conspirators turned on him in an attempt to reduce their own prison time. After a jury convicted him for his role in the conspiracy, Tanner was sentenced to life in prison, in large part because of the significant amount of cocaine he helped distribute. On appeal Tanner argues that the prosecutor violated his Fifth Amendment privilege against self-incrimination by pointing out in closing arguments defense counsel's failure to rebut the government's case. Tanner also argues that the district court improperly admitted certain evidence against him and instructed the jury improperly. Tanner further asserts that the district court miscalculated his advisory sentencing guideline range and that life imprisonment is unreasonable.
None of Tanner's arguments warrant reversal of his conviction or his sentence. A number of individuals other than Tanner could have been in a position to rebut the government's case, so we find no error in the prosecutor's closing argument. Except for certain testimony regarding Tanner's possession of a firearm on one occasion, all of the complained-of evidence was clearly admissible. The one exception was harmless. As for the jury instructions, the district court's only error was in giving an "ostrich" instruction lacking sufficient factual support in the trial record. That error was also harmless. The district court properly calculated Tanner's sentence, and a life sentence was reasonable under these circumstances. Accordingly, we affirm.
During an investigation of two crack houses in Gary, Indiana, a law enforcementtask force learned that a man named Warren Moore was a mid-level dealer of crack cocaine. Moore turned out to be a relatively minor player in a larger drug distribution ring. Law enforcement arrested him on April 20, 2004 and convinced him to become a government informant. As an informant, Moore made a controlled purchase of crack cocaine from Erbey Solis on August 31, 2004, after which Solis was arrested, and he in turn also agreed to become a government informant.
The investigation into Moore revealed that appellant Tanner was a high-level drug dealer, and Solis agreed to help the government investigate Tanner's drug dealing. At the direction of law enforcement, Solis called Tanner and arranged to sell Tanner 15 kilograms of cocaine. The drug deal took place in the parking lot of a drugstore in Gary, Indiana on September 1, 2004. Because it would be unwise (for obvious reasons) to bring such a large amount of real cocaine to the deal, law enforcement provided Solis with 15 kilograms of simulated cocaine. Tanner was arrested when he took possession of the simulated cocaine from Solis.
Once in custody, Tanner quickly provided a full confession implicating himself as a high-level cocaine dealer. In that confession, Tanner identified his main supplier of cocaine, from whom he claimed to have purchased between 10 and 15 kilograms of cocaine on previous occasions. Tanner also named another supplier from whom he had purchased large amounts—between 5 and 10 kilograms at a time. Tanner further admitted that he was attempting to purchase 15 kilograms of cocaine from Solis at the time he was arrested, and he said that he had purchased somewhere between 15 and 25 kilograms of cocaine from Solis in the past.
Tanner was indicted on charges of conspiracy to possess cocaine with intent to distribute, and with attempted possession of 5 kilograms or more of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. Tanner was tried on these charges alongside alleged co-conspirator Lance Foster. Both Moore and Solis testified to Tanner's participation in a multi-state conspiracy to distribute large quantities of crack cocaine. Solis also testified as to his involvement in the sham drug sale that led to Tanner's arrest, and the prosecution played for the jury recordings of Tanner's and Solis's phone calls planning that sale. Particularly damning was the testimony of the two FBI agents who took Tanner's confession after his arrest. Those agents testified that Tanner had admitted that he was part of a large conspiracy to distribute drugs and that he was attempting to purchase cocaine from Solis when he was arrested. Tanner did not testify. He also did not seriously challenge the government's overwhelming evidence of his guilt. Tanner chose instead to call a number of character witnesses. The jury convicted Tanner on both counts against him, and the district court sentenced Tanner to life imprisonment.
Tanner's primary argument on appeal is that the district court should have declared a mistrial sua sponte because the prosecution's closing arguments infringed his Fifth Amendment right to remain silent. We review such allegations of prosecutorial misconduct not in a vacuum, but in the larger context of the parties' closing arguments and the trial itself. See United States v. Holt, 817 F.2d 1264, 1275 (7th Cir.1987), quoting United States v. Buchbinder, 796 F.2d 910 (7th Cir.1986). Our analysis of Tanner's claim starts with the specific parts of the defendant's closingargument that the prosecutor was attempting to rebut.
During Tanner's closing argument, defense counsel stated:
After arguing that the government had failed to rebut Tanner's character witnesses, Tanner's counsel concluded:
Responding in his rebuttal argument, the prosecutor stated:
At this point, Tanner's counsel voiced his belief that these comments came "dangerously close to a certain area of law," but he did not object or state a specific legal basis for an objection. Absent more specific complaints from defense counsel, the court reminded the jury that Tanner "does not have to prove anything." Tanner's counsel voiced his disapproval of this statement but, once again, failed to actually object. Absent any objection, the prosecution continued:
Tanner's counsel finally objected at this point and, at a side-bar, argued that the prosecution "came so close to [saying that] the defendant did not testify." The courtoverruled the objection, and the prosecutor continued:
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