United States v. McKnight, 10–2297.

• Decision Date: 22 November 2011
• Docket Number: No. 10–2297.,10–2297.
• Citation: 665 F.3d 786
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ondray McKNIGHT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

665 F.3d 786

UNITED STATES of America, Plaintiff–Appellee,

v.Ondray McKNIGHT, Defendant–Appellant.

No. 10–2297.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 29, 2011.Decided Nov. 22, 2011.

Lindsay Jenkins (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Jonathan E. Hawley, Fed. Pub. Def., Andrew J. McGowan (argued), Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before RIPPLE, MANION and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

After a four-year investigation by the Drug Enforcement Administration (“DEA”) and the Chicago Police Department, a grand jury indicted Ondray McKnight and six codefendants for various offenses arising from the organized distribution of controlled substances. Mr. McKnight was charged with one count of conspiracy to distribute a controlled substance, 21 U.S.C. § 846, and two counts of using a communication facility (a telephone) to distribute a controlled substance, 21 U.S.C. § 843(b). Mr. McKnight pleaded not guilty, and a jury convicted him on the conspiracy and one of the communication counts. He was acquitted of the other communication count. The district court sentenced Mr. McKnight to 300 months' imprisonment to be followed by a ten-year term of supervised release. It also imposed a fine of $1,000, which it ordered paid through the Inmate Financial Responsibility Program (“IFRP”). Mr. McKnight now appeals. He claims that a jury instruction relating to the Government's use of deceptive investigative practices was improper and confusing. He also challenges the district court's order that he participate in the IFRP. We conclude that the district court acted within its discretion in giving the instruction and that, in any event, the instruction was not prejudicial to Mr. McKnight. Further, the parties correctly agree that participation in the IFRP is voluntary and that the sentence must be modified in that respect. Accordingly, we affirm Mr. McKnight's conviction and modify his sentence with regard to the IFRP.

IBACKGROUND

A. Facts

In 2003, a confidential informant provided information to the DEA that led to an investigation of Victor Thompson, a high-ranking member of the Gangster Disciples gang. Thompson managed a drug distribution network that operated in a residential neighborhood on the south side of Chicago.¹ Thompson's network included various other individuals—some gang members, some not—who worked as dealers selling heroin, cocaine base and marijuana; suppliers providing drugs either directly to dealers or to Thompson for repackaging; and lookouts to warn other members of the conspiracy of nearby police officers. Members of Thompson's network frequently carried firearms and allegedly were involved in, although not indicted for, theft, robbery, kidnapping and other crimes.

During their four-year investigation into Thompson's network, DEA agents and officers of the Chicago Police Department gathered evidence by using techniques that have become common in the drug context: confidential informants, undercover officers, controlled buys, surveillance and wiretapping. As part of that effort, the Government obtained wiretap warrants in 2006 for several phones, including one belonging to Shawn Denton, who later became the Government's chief witness in this case. Law enforcement agents intercepted hundreds of phone calls related to the conspiracy. They also conducted controlled buys from numerous members of Thompson's network, including Denton, but none from Mr. McKnight.

The investigation ended in 2007, with the Government's filing a criminal complaint against eight individuals. A grand jury returned a thirty-count indictment against Mr. McKnight and six codefendants that included charges of conspiracy, narcotics distribution, using telephones in furtherance of the conspiracy and weapons offenses. Thompson and Mr. McKnight's other codefendants accepted plea agreements at various points in the proceedings. Mr. McKnight pleaded not guilty and proceeded to trial.

B. District Court Proceedings

At Mr. McKnight's trial, the Government introduced the testimony of three witnesses: DEA Agent Fernando Cervantes, who testified about the investigation of the Thompson drug operation; DEA chemist Robert Krefft, who testified very briefly and generally about cocaine and cocaine base (or “crack”); and Denton. Denton, who had been indicted on six charges, was cooperating with the Government in exchange for a favorable sentencing recommendation. As the Government's principal witness at trial, Denton provided testimony about the Gangster Disciples, Thompson's drug operation and Mr. McKnight's specific role in it, as well as his interpretation of the wiretap recordings.

Denton testified that Mr. McKnight began supplying Thompson's network with drugs in 2006. Mr. McKnight originally paid Thompson a weekly fee of $1,500 to provide Thompson's dealers with heroin, cocaine base and marijuana. After three months, Thompson sought to increase his share of the profit by having Mr. McKnight supply him with wholesale quantities of heroin, which he would then repackage and distribute to his dealers. Mr. McKnight continued to supply Thompson's dealers directly with cocaine base and marijuana.

During Denton's direct examination, the Government played for the jury (and provided transcripts of) thirty-seven phone calls related to the conspiracy. Denton testified that he and other members of Thompson's network spoke in code to avoid detection by police; he deciphered these recorded conversations for the jury.² Denton also identified Mr. McKnight as a participant in twenty-eight of the calls and a topic of conversation in another seven calls, all of which implicated Mr. McKnight in illegal activity.

The Government also played recordings from several controlled buys in which an informant purchased drugs from Denton while wearing a hidden microphone. Denton identified Mr. McKnight as the source of the drugs he sold to the informant in those transactions.

Counsel for Mr. McKnight sought to undermine Denton's testimony as self-serving and unreliable. Throughout the trial, counsel focused on Denton's criminal activities and the favorable sentencing recommendation he expected to receive from the Government in exchange for his testimony. Mr. McKnight did not put on any evidence.

During the jury instruction conference, the Government proposed the following jury instruction:

Sometimes the government uses undercover agents and undercover informants who may conceal their true identities in order to investigate suspected violations of law. In the effort to detect violations of the law, it is sometimes necessary for the government to use ruses, subterfuges and employ investigative techniques that deceive. It is not improper or illegal for the government to use these techniques, which are a permissible and recognized means of criminal investigation. Whether or not you approve of such techniques[ ] should not enter into your deliberations in any way.

R.227 at 38.

Mr. McKnight's attorney objected, contending that the principal case on which the Government relied to support the instruction, Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), was inapposite and that the defense had not called the Government's investigative techniques into question. The Government responded, “Judge, this is in here because, of course, the government did put on evidence of wiretaps and undercover agents and informants. And some jurors have issues with the government's use of those techniques in general.” Trial Tr. vol. 3, 394, Oct. 7, 2009. Without further discussion, the district court overruled the objection, stating, “I have given this instruction before. I don't think it's particularly problematic.” Id. The district court included the language, with minor technical and grammatical adjustments, in its final instructions to the jury.

The jury convicted Mr. McKnight of conspiracy to distribute a controlled substance and of one count of using a communication facility to distribute a controlled substance. After denying Mr. McKnight's motion for judgment of acquittal and subsequent motion for reconsideration, the district court sentenced him to 300 months' imprisonment for conspiracy and 48 months' imprisonment for the communication count, to be served concurrently, followed by a ten-year term of supervised release. The court further imposed a special assessment of $200, due immediately, and a fine of $1,000 to be paid from prison earnings through the IFRP.

IIDISCUSSION

Mr. McKnight raises two arguments on appeal. First, he claims that the district court erred by giving the Government's proposed “deceptive investigative techniques” jury instruction and that the error was sufficiently substantial to have prejudiced the outcome of his trial. Second, he challenges the district court's order that he participate in the IFRP.

A. Deceptive Investigative Techniques Instruction

At issue is the instruction that advised the jury that deceptive investigative techniques are lawful and that forbade jurors from letting their personal disapproval of such techniques influence their deliberations in any way. Mr. McKnight contends that the instruction is not an accurate statement of the law and is unsupported by the record. He claims that giving the instruction prejudiced his defense by confusing the jury about its obligation to evaluate Denton's credibility. The Government counters that the instruction is supported by Lewis, 385 U.S. at 208–09, 87 S.Ct. 424, and that, in any event, the instruction did not prejudice Mr. McKnight's defense.

We engage in a limited review of jury instructions, asking only “ ‘if the instructions as a whole were sufficient to inform the jury correctly of the applicable law.’ ” United States v. Curry, 538 F.3d 718, 731 (7th Cir.2008) (quoting United States v. Woods, 148 F.3d 843, 849 (7th Cir.1998)). “We...