United States v. Tucker

• Decision Date: 30 April 2013
• Docket Number: No. 12–1281.,12–1281.
• Citation: 714 F.3d 1006
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ivy T. TUCKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

714 F.3d 1006

UNITED STATES of America, Plaintiff–Appellee,

v.Ivy T. TUCKER, Defendant–Appellant.

No. 12–1281.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 2012.

Decided April 30, 2013.

Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Damon M. Cheronis (argued), Chicago, IL, for Defendant–Appellant.

Before BAUER and HAMILTON, Circuit Judges, and THARP,^* District Judge.

BAUER, Circuit Judge.

Following a three-day jury trial, Ivy T. Tucker was found guilty of conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Tucker was sentenced to 480 months' imprisonment, followed by five years of supervised release. On appeal, Tucker argues he was denied a fair trial because of misconduct by the prosecutor and the improper admittance of “dual capacity” evidence testimony of a police officer. For the reasons that follow, we affirm.

I. BACKGROUND

On May 12, 2009, Tucker and nine co-defendants were charged with conspiracy to distribute more than one kilogram of heroin, the use of which resulted in a death on January 9, 2009. A seven-count superseding indictment returned on June 23, 2009, re-alleged the conspiracy count against Tucker and his co-defendants, and added six additional counts charging several of Tucker's co-conspirators with distribution of heroin on specific occasions during 2008 and 2009. All of Tucker's co-defendants pleaded guilty; Tucker proceeded to a three-day jury trial on October 12, 2010.

During opening statements, the prosecutor explained that the evidence against Tucker would mostly be in the form of testimony from his co-conspirators, all of whom had criminal backgrounds and drug problems. After summarizing the investigation that lead to Tucker's arrest, the prosecutor commented on the devastating effects of heroin, and referenced prospective jurors' personal experiences with family members' drug abuse that they had shared with the court during voir dire. He said:

And heroin is a highly addictive drug. It's a horrible drug. And as we all know from news accounts, and some of the people told us during jury selection, it's a drug that can kill you. It can kill you the first time you use it....Tucker's trial counsel did not object to these statements.

The evidence at trial did consist primarily of testimony from Tucker's nine co-conspirators, who testified that Tucker ran a heroin distribution ring in Racine, Wisconsin, from 2008 through 2009. The jury also heard from the lead investigator on the case, Officer Jason Baranek, a twelve-year veteran of the Oak Creek, Wisconsin, Police Department. Officer Baranek's testimony set the stage for the rest of the Government's case by describing how his investigation of Tucker unfolded.

Officer Baranek explained that in early 2008, Oak Creek, Wisconsin, was plagued by rising heroin overdoses and related theft cases. This disturbing trend prompted Officer Baranek, a member of the Drug Enforcement Unit, to begin an investigation into heroin trafficking in Racine County. Officer Baranek explained that as part of the investigation, local law enforcement, working in conjunction with the Federal Drug Enforcement Administration (DEA), conducted “controlled purchases” in which a cooperating informant would use government money to buy heroin from his drug source. Then the individuals arrested after the controlled purchase would be “debriefed.” During debriefing, a member of law enforcement interviewed the suspects in hopes of uncovering the source of their drug supply, as well as the identity of any other individuals involved, any practices used to deliver the drugs, and whether any other crimes were being committed. Officer Baranek also provided the jury with details about the use of “stash houses” and other drug-trafficking practices based upon his experience as a member of the Drug Enforcement Unit.

Destiny Merritt, Tucker's ex-girlfriend, was one of the nine testifying co-conspirators at his trial. She said the two began dating in 2008. Merritt testified that Tucker paid her expenses, such as rent and car payments, and in exchange Merritt sold heroin for Tucker and allowed him to store drugs in her apartment. Merritt stated that she accompanied Tucker on trips where he purchased heroin, paying approximately $70,000 for a kilogram. Merritt also testified that she aided Tucker in supplying multiple customers with heroin. Tucker would “front” the drugs to Merritt, and she would reimburse him once she was paid by the customers.

Charles Stuck, another co-conspirator, also testified against Tucker. Stuck testified that he initially purchased one to two grams of heroin from Merritt per week and later increased the amount to multiple grams daily. Stuck kept some of the heroin for personal use and sold the rest in South Milwaukee. Stuck also testified that Merritt told him that Tucker was her heroin supplier, and on at least one occasion, Tucker accompanied Merritt when she sold to Stuck. Furthermore, Stuck testified that Tucker asked him if he wanted to start selling heroin for him.

In addition to Stuck and Merritt, seven other individuals took the stand and identified Tucker as the source of their heroin supply. During his defense, Tucker offered into evidence a stipulation that, if called to testify, Noconnco Price (who was never charged in relation to this case) would state that he spoke with DEA Agent Ken Darling on January 14, 2009, and identified Tucker as a customer of another co-conspirator, rather than the central supplier. Tucker exercised his right not to testify, and the district court instructed the jury that no inference of guilt could be drawn from that decision.

During closing arguments, defense counsel questioned the credibility of the Government's witnesses by implying they had a motivation to lie in exchange for favorableplea deals. In rebuttal, the prosecutor stated:

But we're supposed to trust that they're smart enough that they all get together somewhere, somehow—some of these people are out some are in jail. They're all over the place. But they all sit down shortly after their arrest and say this is what happened. And—what? All their stories are the same? It's the same guy? It's Mr. Tucker.

The prosecutor also explained to the jury how plea agreements may affect the testifying co-conspirators:

They testified as to their deal. Their deal—their deal isn't made with the Government. They're still facing long prison terms. And their deal and their ultimate sentence isn't decided by the Government. It's not decided by the United States Attorneys Office. It's decided by one man. That's Judge Randa, who's sitting in there. Who's listening to this testimony. Who's examining what these witnesses say. And he'll make the ultimate determination.

The prosecutor went on to add:

You know, it's one person's witness against another. And in this case it's nine witnesses against Mr. Tucker, saying that he was involved in this role, in this conspiracy. You've heard the evidence in this case. You—each and every one of you know what the truth is in this case.

The prosecutor then utilized imagery of local children purchasing heroin from street dealers:

After he was selling it to the Oak Creek kids, as Mr. [William] White testified to. There are all theses kids coming down from Oak Creek, Franklin, South Milwaukee. You know, we know that there's an increase in heroin because we read about it every day in the paper. And these kids are going down there looking for one thing. They're looking for heroin.

After closing arguments, the district court instructed the jury as to the law, reminded it that the lawyers' statements are not evidence, and again admonished the jury that no inference of guilt could be drawn from Tucker's decision not to testify. Ultimately, the jury returned a verdict of guilty on the conspiracy count and found that the offense involved more than one kilogram of heroin. Tucker was sentenced to 480 months' imprisonment, followed by five years of supervised release. Tucker filed a timely notice of appeal on February 7, 2012.

II. DISCUSSION

Tucker challenges his conviction on two grounds. First, he argues that the prosecutor made numerous improper remarks that denied Tucker his right to a fair trial under the due process clause of the Fifth Amendment to the United States Constitution. Second, he contends that Officer Baranek was improperly allowed to testify as a “dual capacity” witness. Tucker has an uphill battle on appeal, since defense counsel failed to make objections at trial, this Court's review is limited to plain error. United States v. Christian, 673 F.3d 702, 708 (7th Cir.2012). Under the plain error standard, we must determine whether there was (1) an error, (2) that was plain, meaning clear or obvious, (3) that affected the defendant's substantial rights in that he probably would not have been convicted absent the error, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. Even if there is a finding of plain error, in order to prevail, Tucker must “show that the error caused a ‘miscarriage of justice, in the sense of seriously affecting the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (citing United States v. Ambrose, 668 F.3d 943, 963–64 (7th Cir.2012)).

A. Prosecutorial Misconduct

We first consider Tucker's argument that improper statements by the prosecutor denied him a fair trial. When evaluating questions of prosecutorial misconduct, we undertake a two-part inquiry. We first determine whether the prosecutor's conduct was improper, and if so, we then evaluate the conduct in light of the entire record to determine if the conduct deprived the defendant of a fair trial. United States v. Smith, 674 F.3d 722, 728–29 (7th Cir.2012). “[I]t is not enough that the prosecutor's remarks were undesirable or even universally...