U.S. v. Thomas, 01-3759.

• Decision Date: 26 June 2002
• Docket Number: No. 01-3759.,01-3759.
• Citation: 294 F.3d 899
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vern THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

294 F.3d 899

UNITED STATES of America, Plaintiff-Appellee, v. Vern THOMAS, Defendant-Appellant.

No. 01-3759.

United States Court of Appeals, Seventh Circuit.

ARGUED April 8, 2002.

DECIDED June 26, 2002.

COPYRIGHT MATERIAL OMITTED

Stuart J. Chanen (argued), Office of U.S. Atty., Criminal Division, Appellate Section, Chicago, IL, for Plaintiff-Appellee.

Daniel E. Radakovich (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, EASTERBROOK and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Appellant Vern Thomas and three co-defendants, Edward Indihar, Salvatore DeLuca and Irvin Thomas (Appellant's brother, "Irvin") were indicted as co-conspirators and charged with various drug offenses. Thomas was charged with conspiracy to possess with intent to distribute cocaine, attempt to possess with intent to distribute cocaine, and possessing a firearm in furtherance of a drug trafficking crime. After a bench trial, the trial court found Thomas guilty on all three charges. Subsequently, however, the trial court vacated its finding of guilty on the possession of a firearm charge and instead, entered a finding of not guilty. Thomas was sentenced to serve 102 months in prison. He appeals his conviction and sentence on several grounds, but for the following reasons, we affirm.

BACKGROUND

In early spring of 2000, Edward Indihar contacted Roger Romano and expressed his interest in purchasing cocaine. Unbeknownst to Indihar, Romano was an undercover DEA Task Force Officer. On May 29, 2000, Indihar met Officer Romano at a restaurant in Norridge, Illinois to negotiate the details of the drug purchase. Romano informed Indihar that he had five kilograms of cocaine for sale at a certain price, and they discussed a time and place to consummate the deal. Outside the restaurant, Romano and another undercover agent showed Indihar the five kilograms of cocaine in the trunk of their vehicle. Afterwards, Indihar notified DeLuca and Thomas of his meeting with Romano and Thomas responded that he was eager to purchase the drugs.

Over the next several days, Indihar and DeLuca spoke with both Officer Romano and Thomas in an effort to put together a deal. On June 1, 2000, Indihar and DeLuca met with Romano again and agreed to purchase the five kilograms. Thomas agreed to pay $20,000 to Indihar for each kilo and Indihar planned to purchase the kilos from Romano at a lower price and share the difference with DeLuca. Thomas told DeLuca and Indihar that he had access to the money required to purchase all five kilos. The three agreed that they would make the purchase later that night at Chicago's Rock N' Roll McDonald's.

At this meeting, Indihar paged Romano, and when Romano called back, he spoke with Indihar, DeLuca and Thomas. During this call, Thomas confirmed to Romano that he wanted to buy the drugs that night; they then discussed, at length, the details of the transaction. Thomas told Romano that he and the others would meet Romano at the McDonald's. Thomas also stated that if the transaction went smoothly, he would be interested in similar business in the future. Officer Romano taped this conversation.

That night, Thomas and his brother Irvin arrived at the McDonald's in a red Buick. Indihar and DeLuca arrived separately. Indihar called Romano to tell him that everyone had arrived, but shortly thereafter, DeLuca noticed several police vehicles in the area and they decided to change the meeting place to a nearby parking lot. At the new location, however, the transaction was again aborted because they observed police vehicles in the area.

On June 15, 2000, the parties arranged for another meeting at a restaurant. Again, Thomas and Irvin arrived together in the red Buick but remained in their car. Inside the restaurant, Romano found Indihar and DeLuca and requested to see the money. Indihar went outside and found Thomas in his Buick. Thomas showed Indihar the purchase money, which was in a brown paper bag on the front seat. Indihar asked Thomas to bring the money into the restaurant, but he refused and instead requested that Romano come outside to his Buick. Indihar told Thomas that Romano wanted to see the money inside, but Thomas responded that "it wasn't going to happen."

Indihar had several more conversations with both Romano and Thomas as to whether the purchase would be made inside or outside the restaurant. Ultimately, it became clear that Thomas was not coming into the restaurant with the money and Officer Romano gave the other officers in the area the arrest signal. DeLuca was arrested first in the alley outside the restaurant. Upon seeing this, Indihar told Thomas, "Sonny just got popped." Thomas and Irvin immediately sped away in their Buick. Two Task Force officers blocked off a portion of the street with their vehicle to stop Thomas' Buick. The officers got out of their vehicle, identified themselves as police officers and ordered Thomas to stop. Instead, Thomas picked up speed and drove around the officers, hitting the officers' vehicle, running over an officer's foot and colliding with a parked vehicle in the process. The officers returned to their vehicle and pursued Thomas and Irvin, who were traveling at approximately 40 or 50 miles an hour. Ultimately, Thomas stopped the car and he and Irvin tried to escape on foot, but police officers apprehended them.

After the arrest the officers searched Thomas' Buick and discovered a hidden compartment, from which they recovered a number of items: 1) a brown paper bag containing $20,000, 2) a loaded Davis Industry.22 caliber handgun, 3) a scale commonly used to measure drugs, and 4) plastic bags and packaging consistent with breaking down a kilo of cocaine into smaller quantities. A subsequent vacuum sweep of the car revealed cocaine residue in the compartment as well.

On February 28, 2001, a grand jury returned a three-count indictment against Thomas and the three co-conspirators. Counts One and Two charged all four defendants with conspiracy to possess with intent to distribute cocaine and attempt to possess with intent to distribute cocaine. In addition, Count Three charged Thomas and Irvin with use of a firearm during and in relation to a drug trafficking crime.

Thomas was tried in a three-day bench trial. The district court admitted into evidence 18 tape-recorded phone conversations that Officer Romano had with Thomas and co-defendants DeLuca and Indihar. Although the tapes were made by Officer Romano, he was unable to testify at trial because he had been severely injured in a car accident. Instead, the government offered the testimony of Task Force Officer Edward Farrell to establish the foundation for the recordings. Officer Farrell testified that Officer Romano made the recordings in late May and early June, that the recordings included conversations with Thomas as well as co-defendants Indihar and DeLuca, and that Romano used a cassette recorder and an earpiece in order to record his own voice and the incoming voice from the telephone. Farrell testified that after Romano made the recordings, the tapes were taken into DEA custody. Finally, Farrell testified that he and the other officers had prepared and reviewed the transcripts and that they were a true and accurate transcription of the tapes.

The government also offered the testimony of Indihar to establish the authenticity of the tape recordings. Indihar testified that he had listened to each tape, and that he recognized the voices on the tapes. Indihar was a party to many of the taped conversations and was present with Thomas for most of Thomas' taped conversation with Romano (although Indihar testified that he walked away from this conversation briefly). He identified the voices of Officer Romano, DeLuca, and Thomas, as well as his own voice. Indihar also explained in detail the content of the tapes and testified that the transcripts of the tapes accurately reflected the recordings. After this testimony, the government moved for the admission of the 18 tape recordings. Thomas' counsel objected to the admission of some of the tapes, arguing that Indihar's testimony did not establish a proper foundation because he was not a party to some of the conversations on the tapes. The district court overruled the objection, holding that there was a sufficient foundation for the tapes in which Indihar "was present, he talked, ... or he was in the immediate presence and heard the conversations of the parties to the conversation or some of it at the time it was being recorded."

At the conclusion of the trial, the district court found Thomas guilty on all three counts of the indictment. Later, however, the court reversed the finding of guilty on Count Three, the firearm charge, holding that, although there was evidence that Thomas used a firearm in connection with the drug offense, the evidence did not establish proof beyond a reasonable doubt. The court entered a finding of not guilty on that count.

At sentencing, the district court increased Thomas' base offense level two points, pursuant to section 3C2.1 of the Sentencing Guidelines, based on a finding that Thomas recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing law enforcement. In addition, the court determined that Thomas possessed a firearm during the drug offense, and accordingly increased his offense level two points under section 2D1.1(b)(1) of the Guidelines. Thomas was sentenced to 102 months on each of Counts One and Two, to run concurrently. He appeals his conviction and sentence.

ANALYSIS

A. Admissibility of Tapes

Thomas first argues that the district court erroneously admitted tape recordings, specifically Tape Recording 9, into evidence at trial without proper foundation or authentication. We generally review a district court's evidentiary rulings for an abuse of discretion. United States v. Hunt, 272 F.3d 488, 494 (7th Cir.2001). Because of the great deference we give to a...