U.S. v. White

• Decision Date: 05 March 2008
• Docket Number: No. 06-4185.,06-4185.
• Citation: 519 F.3d 342
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

519 F.3d 342

UNITED STATES of America, Plaintiff-Appellee, v. Juan WHITE, Defendant-Appellant.

No. 06-4185.

United States Court of Appeals, Seventh Circuit.

Argued December 7, 2007.

Decided March 5, 2008.

Richard N. Cox (argued), Office of the United States Attorney Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Susan Kister (argued), St. Louis, MO, for Defendant-Appellant.

Before POSNER, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Juan White was convicted by a jury of distribution of 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). During the trial, the district court allowed the government to introduce evidence that its main witness had cooperated in other cases in order to rehabilitate him, a ruling White now appeals. Following the trial, the district court sentenced White to 360 months of imprisonment. White also appeals this sentence. We affirm.

I.

In 2000, Juan White was the subject of a government drug investigation in Decatur, Illinois. Troy Fuller, who was similarly under investigation at that time, was arrested on drug charges in March 2000 and began cooperating with authorities. As Fuller previously had purchased powder cocaine from White, the police instructed Fuller to contact White and attempt to set up a controlled purchase of two ounces of crack cocaine. On August 27, 2000, White and Fuller agreed to meet at a car wash to complete the purchase. When White arrived a few minutes after Fuller (who was outfitted with a wire transmitter), he entered the backseat of Fuller's car and gave Fuller what was later determined to be 57.2 grams of crack. Fuller paid White $1800 and asked him whether he had any "soft" (meaning powder) cocaine. White responded that he was hoping to obtain some that night and to call him within the next few days.

More than three years later, on October 9, 2003, White was arrested for the August 2000 sale of crack to Fuller. At that time agents also seized a number of firearms. White was charged in an indictment (later superseded) with the August 2000 sale of crack as well as the October 2003 possession of a firearm by a felon. White pleaded guilty to the firearm charge and proceeded to a jury trial on the drug charge.

At the trial, Fuller, testifying on behalf of the government, recounted his August 2000 transaction with White and also told the jury that he was testifying pursuant to a plea agreement with the government in the hopes that his sentence would be reduced. On cross-examination, White's counsel attacked Fuller's credibility, focusing on the fact that Fuller was relying on the government to seek to reduce what otherwise would be a mandatory minimum sentence. In light of this line of questions, the prosecutor requested that he be permitted to rehabilitate his witness with evidence concerning the cooperation Fuller had provided to the government in other cases. Following a hearing, the district court determined that White's "full frontal attack" on Fuller's credibility warranted the government's rehabilitation of Fuller. Tr. 374. The government then elicited testimony from an FBI agent describing three other drug cases in which Fuller had cooperated: one in which Fuller's information led to the seizure and forfeiture of $16,000 and two others which resulted in guilty pleas. Both at the time this evidence was introduced and again when he was charging the jury at the close of the case, the district judge instructed the jurors that this evidence was admitted only for purposes of evaluating Fuller's credibility and not as evidence against White. The jury, as we have mentioned, convicted White on the drug distribution charge.

White's conviction for distributing more than 50 grams of crack cocaine, coupled with a prior felony drug conviction, required a sentence of between 20 years and life in prison. 21 U.S.C. § 841(b)(1)(A)(iii). Within that statutory range, the sentence recommended by the Sentencing Guidelines turned in large part on the quantity of drugs underlying White's offense. The presentence report ("PSR") held White accountable not only for the 57.2 grams of crack cocaine that he sold to Fuller in August 2000, but also for ten additional sales of crack and powder cocaine to Fuller and two others, Frederick Porter and Jeremiah Young, between 1994 and 2003. Those additional sales were treated as relevant conduct. See U.S.S.G § 1B1.3(a)(2) and comment n. 3. In total, the PSR held White accountable for 68.65 kilograms of powder cocaine and 3.37 kilograms of crack, resulting in a base level offense of 38.¹ White objected not only to the PSR's drug calculation, but also to the "deliberate nature of the sting operation" which, according to White, unfairly resulted in the triggering of the mandatory sentencing provisions of 21 U.S.C. § 841(b)(1)(A)(iii). To resolve these issues, the district court held a number of sentencing hearings during which Porter and Young, among others, testified. At the conclusion of these hearings the court determined that the agents' direction to Fuller to purchase the two ounces of crack was neither sentence entrapment nor sentence manipulation and that the drug sales as presented in the PSR were properly attributable to White as part of the same course of conduct as the offense of conviction. Adopting the recommendations of the PSR, the court found the advisory guidelines range to be 360 months to life and, after hearing both the government's recommendations and White's arguments as to an appropriate sentence, the court sentenced White to 360 months' imprisonment.²

II.

A.

White first contests the district court's ruling which allowed the government to introduce evidence of Fuller's cooperation in other cases in order to rehabilitate him as its witness.³ We review a district court's admission of evidence for abuse of discretion. E.g., United States v. Bonner, 302 F.3d 776, 780 (7th Cir.2002). We find there was no such abuse here and consequently we affirm the lower court's ruling.

This Circuit previously has established that a witness whose credibility has been attacked may be rehabilitated (e.g., United States v. Lindemann, 85 F.3d 1232, 1242-43 (7th Cir.1996)), and where, as here, it is a government witness who is portrayed as biased in favor of the government, evidence of that witness's cooperation in other cases may be admitted for that purpose. E.g., United States v. Henderson, 337 F.3d 914, 919 (7th Cir. 2003); United States v. Scott, 267 F.3d 729, 735-37 (7th Cir.2001). When cross-examining Fuller, White's counsel attempted to suggest that Fuller's desire for government leniency in the pending case against him made it likely that he was lying about his transaction with White in order to curry favor with the government. Without the evidence later introduced by the government that Fuller had cooperated in other successful cases, the "jury might have believed that [Fuller's] plea deal rested solely on [White's] case, thereby making a motive to frame [White] all the more reasonable." Henderson, 337 F.3d at 919. The government's evidence of Fuller's other cooperation was relevant because it made the jury aware that Fuller had other, "multiple bargaining chips" vis-à-vis the government, making it less likely that he was lying in this case out of self-interest. See Scott, 267 F.3d at 736. In addition, the court's admonitions to the jury about considering this evidence only insofar as it related to Fuller's credibility further served to mitigate any potential for unfairness to White. Id.

B.

White also argues that the government's specific instruction to Fuller to buy two ounces of crack from him, an amount of the drug that triggers a mandatory minimum sentence under the 21 U.S.C., § 841(b)(1)(A)(iii) (in this case 20 years with a prior felony drug conviction), was so "outrageous" that White's rights clearly were violated. The fundamental unfairness arises, White theorizes, from the fact that the police "chose a substance and an amount with the express purpose of manipulating the mandatory sentencing provisions ..." This broad, nebulous argument is without merit. First, this circuit clearly and consistently has refused to recognize any defense based on either "sentencing manipulation" or on asserting "outrageous government conduct." See United States v. Veazey, 491 F.3d 700, 710 (7th Cir.2007) (no defense of sentencing manipulation) (coll.cases); United States v. Sherman, 268 F.3d 539, 549 (7th Cir.2001) ("outrageous government conduct" is not a recognizable defense) (citing United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995)).⁴ Although this might potentially leave White with an argument of "sentencing entrapment," White himself acknowledges that the government's actions do "not necessarily qualify as sentence entrapment or sentence manipulation....." (White Br. at 13.) Regardless, even if White had cogently made the argument of sentence entrapment, no such finding is warranted here.

Sentencing entrapment occurs in situations when a defendant who lacks a predisposition to engage in more serious crimes nevertheless does so "as a result of `unrelenting government persistence.'" Veazey, 491 F.3d at 710 (quoting United States v. Hale, 448 F.3d 971, 989 (7th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1020, 166 L.Ed.2d 783 (2007)). To overcome this argument, the government need not explain or defend its motives, but must show only that the defendant was in fact predisposed to violate the law without "extraordinary inducements." Id. Here the evidence reveals that White clearly was predisposed to distribute crack: White admitted to selling both cocaine powder and crack to various customers; there was testimony from other drug purchasers that White engaged in multiple, individual sales of large quantities of crack; and Fuller did not offer White any "extraordinary inducements" whatsoever to make the sale. In spite of the fact that the purchase was a departure from...