United States v. Green

• Decision Date: 25 July 2001
• Docket Number: DEFENDANT-APPELLANT,No. 00-1513,PLAINTIFF-APPELLEE,00-1513
• Citation: 258 F.3d 683,2001 WL 832743
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. VERNARD L. GREEN, JR.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 683

258 F.3d 683 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. VERNARD L. GREEN, JR., DEFENDANT-APPELLANT.

No. 00-1513

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued December 4, 2000

Decided July 25, 2001

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:98 CR 74--Rudy Lozano, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Diane P. Wood and Williams, Circuit Judges.

Williams, Circuit Judge.

A jury convicted Vernard L. Green, Jr., of distributing crack cocaine, conspiracy to distribute crack cocaine, and using a communication device in connection with the conspiracy and distribution. Greenappeals, raising multiple alleged evidentiary and sentencing errors by the district court and asserting that the evidence was insufficient to support his conviction. We affirm.

I.

Vernard Green's problems began when the Gary Response Investigative Team (GRIT), a task force of federal and state law enforcement officers, targeted for investigation one of Green's customers, Armondo Guzman, whom they suspected of trafficking in drugs in Gary, Indiana. GRIT enlisted the help of Danny Cox, an informant who had cooperated in other GRIT investigations after GRIT caught him selling cocaine to undercover agents.

GRIT asked Cox to attempt to make a controlled purchase from Guzman, and on April 10, 1998, Cox went to Guzman's home and asked for an ounce of crack cocaine. Guzman said he would have to contact his source, and placed a telephone call. A short time later, an individual arrived and gave the cocaine to Guzman, who then sold it to Cox. The GRIT officers conducting surveillance were too far away to see who delivered the cocaine to Guzman.

Several days later, Lieutenant Huttle and two other GRIT officers arrested and questioned Guzman. According to Huttle's written report of that interview, Guzman identified a man known as "Butter" as his source of cocaine. Guzman told the agents that he purchased cocaine from "Butter" about 100 times, usually in quantities of either an eighth of an ounce or an ounce.

Vernard Green was then questioned by three GRIT officers, including Indiana State Trooper John Jefferson, about the events on April 10. According to Jefferson's report of that interview, Green admitted that in response to Guzman's page, he delivered crack cocaine to Guzman's house. Green identified his source as John Vinson, and agreed to try to make a controlled purchase of crack from him. Although he placed a call to Vinson and identified himself as "Butter," he refused to give any further cooperation. He was arrested and indicted on charges of distributing crack cocaine, conspiracy to distribute crack cocaine, and using a communication device in connection with the conspiracy and distribution.

At trial, Cox and Guzman identified Green as the one who made the April 10 delivery to Guzman. Another witness, Clifton Rock, testified that Green was his source for cocaine, and testified that he also saw Green sell drugs to Herman Hicks, Ann Kelly, and Vincent Hill. Three GRIT agents testified that Green had admitted to them that in April 1998 he delivered an ounce of cocaine to Guzman's house in response to Guzman's page, and that Vinson was Green's source. When Green took the stand, he stated that he went to Guzman's house in April in response to Guzman's page, but he denied delivering crack cocaine, making incriminating statements to the GRIT officers, and any involvement with Vinson. A jury convicted Green on all three charges.

At sentencing, the trial judge found Green responsible for more than 500 grams of crack cocaine, based in large part on Guzman's statement about his history of purchases from Green. The court increased Green's offense level based on its determination that Green had committed perjury during the trial, and denied Green's request for a downward departure based on his employment and family circumstances. The court sentenced Green to concurrent sentences of 235 months' imprisonment on the first two counts (conspiracy and distribution) and 48 months on the third (using a communication device to facilitate the conspiracy and distribution).

II.

A.

Green argues that his conviction should be reversed for four reasons. First, Green contends that the district court erred in admitting, as past recollection recorded, law enforcement officers' written summaries of their interviews with Green and Guzman. He challenges the admission of the reports and the statements attributable to Green and Guzman within those reports. Second, he claims that the government improperly bolstered Cox's credibility by eliciting testimony about Cox's cooperation in other prosecutions. Third, he argues that testimony concerning his prior drug transactions was inadmissible under Federal Rule of Evidence 404(b). Finally, Green claims that the evidence was insufficient to support his convictions. We examine each of these contentions in turn.

1. The officers' written summaries.

The district court allowed Trooper Jefferson to read to the jury the written summary he prepared of his interview of Green, and allowed Lieutenant Huttle to read to the jury his summary of the interview of Guzman. Both written summaries are the officers' out-of-court declarations, offered to prove the matter asserted in them, so are hearsay. See Fed. R. Evid. 801(c). The district court admitted those summaries under Federal Rule of Evidence 803(5), the hearsay exception for past recollection recorded, which allows memoranda or records meeting the criteria of the Rule to be read to the jury, but not received as an exhibit. Green made a timely objection to the admission of the reports, so our review is for abuse of discretion. United States v. Lewis, 954 F.2d 1386, 1390 (7th Cir. 1992).¹

Green first contends that Jefferson's interview summary does not meet the criteria of Rule 803(5) because Jefferson did not prepare the summary until 11 days after his interview with Green. Rule 803(5) requires that the memorandum be made by the witness "when the matter was fresh in the witness' memory," but we have declined to adopt any bright-line rule to measure whether a particular delay is too long. Lewis, 954 F.2d at 1394. Instead, we have held that the trial court may consider the lapse of time along with other circumstances that may be relevant in determining the likelihood that the witness had an accurate memory of the event at the time the record was prepared. Id. (citing United States v. Senak, 527 F.2d 129, 141-42 (7th Cir. 1975)). Green has not identified any relevant circumstances bearing on the likelihood that Jefferson's memory was inaccurate, other than the delay between the interview and the written report, and we do not believe that an 11-day delay--in and of itself--makes the interview so remote that Jefferson could not have accurately recalled it. See Senak, 527 F.2d at 141 (three-year delay between the events and the creation of the memorandum not excessive under the circumstances); United States v. Smith, 197 F.3d 225, 231 (6th Cir. 1999) (15-month delay); United States v. Patterson, 678 F.2d 774, 779 (9th Cir. 1982) (10-month delay). Hence, the district court did not err in determining that the report prepared 11 days after the interview qualified as Jefferson's past recollection recorded.

Green next contends that the assertions attributed to Guzman and Green within the reports should be excluded because he and Guzman did not adopt the reports. We have held that when a witness's statement is recorded by another, both the witness and the one transcribing the statement must testify as to the accuracy of the report to establish that the statement is the witness's past recollection recorded under Rule 803(5). United States v. Schoenborn, 4 F.3d 1424, 1427-28 (7th Cir. 1993) (citing United States v. Williams, 951 F.2d 853, 858 (7th Cir. 1992)). So, if Green and Guzman had testified and affirmed the report's accuracy, the assertions attributed to them would have been admissible under Rule 803(5). See Schoenborn, 4 F.3d at 1428.

However, adoption of the assertions by Green and Guzman is not required if there is another basis for admitting them. This is because statements such as these that comprise multiple levels of potential hearsay are admissible if each part is admissible. See Fed. R. Evid. 805; United States v. Severson, 49 F.3d 268, 271-72 (7th Cir. 1995). The government contends that the assertions attributed to Green and Guzman (the "internal" hearsay) fall within the categories of out-of-court statements defined as non-hearsay by Rule 801(d), even though offered to prove the truth of the matter asserted. We agree that the assertions attributable to Green in Jefferson's report are classic admissions and not hearsay under Rule 801(d)(2)(A). The court did not err in allowing Jefferson's report to be read to the jury.

As to the assertions attributed to Guzman in Huttle's report, the government offered those as Guzman's prior consistent statements. A statement is not hearsay, and admissible as a prior consistent statement under Rule 801(d) (1)(B), if it meets the following four requirements:

1) the declarant testifies at trial and is subject to cross-examination; 2) the prior statement is consistent with the declarant's trial testimony; 3) the statement is offered to rebut an express or implied charge of recent fabrication or improper motive; and, 4) the statement was made before the declarant had a motive to fabricate.

United States v. Stoecker, 215 F.3d 788, 791 (7th Cir. 2000) (quoting United States v. Fulford, 980 F.2d 1110, 1114 (7th Cir. 1992)).²

Putting aside the first requirement for a moment, we conclude that the district court was within its discretion in determining that Guzman's statements to Huttle were admissible under Rule 801(d)(1). The statements...