U.S.A. v. Vaughn, 00-4033

• Decision Date: 08 May 2001
• Docket Number: No. 00-4033,00-4033
• Citation: 267 F.3d 653
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Robert D. Vaughn, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 653

267 F.3d 653 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Robert D. Vaughn, Defendant-Appellant.

No. 00-4033

In the United States Court of Appeals For the Seventh Circuit

Submitted May 8, 2001^*

Decided October 1, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 99-CR-30068--Jeanne E. Scott, Judge.

Before Bauer, Posner, and Coffey, Circuit Judges.

Coffey, Circuit Judge.

On August 6, 1999, Robert Vaughn was charged in a three-count indictment with conspiracy to distribute cocaine base, 21 U.S.C. sec. 846, retaliating against an informant, 18 U.S.C. sec. 1513(b)(2), and possessing a firearm in furtherance of a crime of violence or drug trafficking offense, 18 U.S.C. sec. 924(c). During Vaughn's trial, Illinois State Police Sergeant Agnes Johnson testified regarding controlled drug purchases she made from Vaughn in 1994, which were unrelated to the charged offenses. The trial court admitted Johnson's testimony over Vaughn's objection under Fed. R. Evid. 404(b), ruling that Johnson's testimony was relevant to establish Vaughn's intent, modus operandi, and motive. Vaughn appeals, arguing that Johnson's testimony should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. We affirm.

I. Factual Background

Vaughn began selling crack cocaine in late 1993 to early 1994, while living at Eleanor Gaines's residence in Springfield, Illinois. Gaines's grandson, Dwight Morgan, also lived at the house at that time and supplied Vaughn with the crack that he sold. In addition Vaughn's girlfriend, Katherine Kantner, also lived in Gaines's house.

In July 1994, Sergeant Johnson, was working undercover with the Illinois State Police's Central Enforcement Group in Springfield investigating drug trafficking. During her assignment, Johnson was introduced to Donald Pasquale by Carol Dougherty, who was assisting the police as an informant. When Johnson and Dougherty sought to purchase crack cocaine from Pasquale, he called his supplier, Vaughn. Vaughn brought the crack to Pasquale and told Johnson that she could buy from him directly in the future and in furtherance of this procedure he supplied Johnson with his pager number.

Sergeant Johnson then made three controlled buys from Vaughn in August 1994. To initiate each purchase, either she or Carol Dougherty paged Vaughn. When Vaughn called them shortly thereafter, they ordered a quantity of crack, using coded language to refer to the drugs and the quantity desired. After receiving the order, Vaughn gave Johnson and Dougherty instructions to meet him at a Springfield grocery store parking lot. On each occasion, Vaughn drove to meet Johnson and Dougherty at a transaction location of his choice. During one of the purchases, Vaughn made it clear that he would not make the sale in the presence of more than one person, telling Johnson that "[i]t takes two to get indicted." On that occasion, Vaughn directed Dougherty to ride briefly as a passenger in his car before he would make the crack sale. Vaughn was indicted for his August 1994 drug transactions with Sergeant Johnson and Carol Dougherty, and pleaded guilty to the resulting three-count indictment in July 1996.

In spite of the 1994 indictment, Vaughn continued to sell drugs in the time period between the August 1994 sales to Sergeant Johnson and his July 1996 guilty plea resulting from those sales, and the charged offenses result from his conduct during that period. Vaughn's nefarious enterprise was successful. By late 1995, Vaughn had stashed $100,000 in proceeds from his drug business at a house where his mother lived. However, shortly after Vaughn's transactions with Sergeant Johnson, he was forced to enlist the aid of his girlfriend Kantner as a result of the suspension of his driving privileges.¹ Unable to deliver the drugs to his customers, Vaughn had Kantner make deliveries for him.

On November 7, 1995, Kantner was arrested for delivering crack to Kim Ingold, one of Vaughn's customers who at the time was acting as an informant for the Springfield police. Vaughn became angry that Kantner had been set up by Ingold because Kantner could no longer make deliveries for him and he attempted to hire Needham Davis and Peddie Taylor to bomb Ingold's residence. When Davis and Taylor refused to carry out his directive to bomb Ingold's house, Vaughn stated that he would take care of it himself. Kantner drove Vaughn to Ingold's residence, and at Vaughn's direction she placed an explosive device inside Ingold's front screen door. The detonation of the bomb caused extensive damage to her residence.

The Springfield police suspected Vaughn as being responsible for the bombing and questioned him shortly after the incident. Vaughn denied any involvement in the bombing, as did Kantner who was interrogated by the police at the same time. Despite Vaughn's and Kantner's denials regarding their involvement in the bombing, the police continued to suspect that they were responsible for the bombing of Ingold's house.

Ultimately in July 1999 (while faced with other criminal charges), Kantner admitted her involvement in Vaughn's drug enterprise as well as in the bombing incident. Based upon Kantner's confession, Vaughn was indicted and charged with conspiring with Kantner to distribute crack cocaine, retaliating against an informant, and possessing an explosive device in relation to a drug trafficking crime.

At a pretrial hearing on April 28, 2000, the government filed a notice with the court of its intent to use evidence related to Vaughn's 1994 drug sales to Sergeant Johnson. Vaughn objected to the use of evidence of his prior transactions, and the government filed a response to his objections. At an evidentiary hearing on May 4, 2000, the trial judge reserved her ruling on the government's notice, instructing the parties that she would rule on the admissibility of the evidence at the trial.

During the trial, the government called Kantner to testify as to the scope and nature of the conspiracy with Vaughn to sell crack cocaine. Kantner testified that she did not become aware of Vaughn's drug-dealing operation until after she had been living with Vaughn for some time. Kantner identified Morgan as Vaughn's source for the drugs that he sold and further described Vaughn's business practices. According to Kantner, when a customer was interested in making a drug purchase, the customer would page Vaughn who would then contact the customer and designate a location to complete the sale. In particular, Kantner noted that Vaughn was careful to avoid any transactions that he felt might be suspicious and/or where he felt that the customer might be cooperating with law enforcement authorities. Kantner further explained that Vaughn believed that he could not be indicted on the word of one witness on a one-on-one basis and so was careful not to complete a delivery unless the customer was alone.

Finally, Kantner testified that she became involved in Vaughn's drug-dealing scheme after Vaughn lost his driving privileges. Kantner stated that Vaughn supplied her with the names of his customers and a pager in order that his customers could contact her, as well as the drugs that she was to deliver. Kantner also claims that Vaughn instructed her regarding his procedures for completing the sales, particularly directing her to conduct sales only when she was alone with the customer. Kantner testified that after completing deliveries she would turn the proceeds over to Vaughn who would count the money on a nightly basis to ensure his profit in the illicit drug enterprise. Finally, Kantner testified that, when Vaughn's drug-dealing business hit a low point on November 7, 1995 after Kantner's arrest for selling drugs to Ingold, Vaughn instructed her to bomb Ingold's residence.

Vaughn's counsel vigorously challenged Kantner's credibility on cross- examination, suggesting that Kantner acted alone both in selling drugs and in bombing Ingold's residence. In support Vaughn pointed to the fact that Kantner had not told the police of Vaughn's involvement in the drug sales when she was arrested in 1995 for selling drugs to Ingold. Vaughn's counsel also pointed out that Kantner did not implicate Vaughn in the bombing of Ingold's residence when she was questioned shortly after the bombing occurred. Finally, Vaughn's counsel pointed to the fact that Kantner continued to sell drugs from 1996 to 1998 while Vaughn was incarcerated. Vaughn argued that these facts demonstrated that Kantner acted alone and without his knowledge in both the drug sales and the bombing.

After Vaughn's counsel cross-examined Kantner, the government sought to buttress her credibility with the testimony of Sergeant Johnson who would testify about Vaughn's 1994 drug sales. The government argued that Johnson's testimony was relevant to demonstrate 1) Vaughn's intent to engage in the conspiracy to distribute drugs with Kantner; 2) Vaughn's method of operation; and 3) Vaughn's motive for entering the conspiracy with Kantner. The trial court ruled that the government's proffered purposes were permissible under Rule 404(b) and further ruled that the prejudicial effect of the prior crack sales did not outweigh its probative value, especially in light of the fact that the jury already had knowledge that Vaughn was in federal custody on another offense.² Accordingly, the trial court allowed Johnson to testify.

Before Johnson testified, the court gave the jury a limiting instruction regarding Johnson's upcoming testimony. The court instructed the jury that they could:

consider [Johnson's testimony] only on the question of the defendant's motive, his intent, his preparation, his plan, his knowledge, his absence of mistake . . . and his background or relationship between himself and certain other witnesses. That evidence is to be considered only for [those] limited purposes in...