US v. Jones

• Decision Date: 07 April 2010
• Docket Number: 09-1970.,09-1825,09-1824,09-1823,09-1822,No. 09-1740,09-1740
• Citation: 600 F.3d 847
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian JONES, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

600 F.3d 847

UNITED STATES of America, Plaintiff-Appellee, v. Brian JONES, et al., Defendants-Appellants.

Nos. 09-1740, 09-1822, 09-1823, 09-1824, 09-1825, 09-1970.

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2009.

Decided April 7, 2010.

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Bradley Blackington, Attorney (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Mark A. Foster, Attorney (argued), Foster, Montgomery & O'Daniel, Ronald J. Freson, Sr. (argued), Steven L. Bohleber, Attorney (argued), John A. Goodridge, Attorney (argued), David W. Lamont, Attorney (argued), Evansville, IN, Dax R. Womack, Attorney (argued), Womack Law Offices, Henderson, KY, for Defendants-Appellants.

Before RIPPLE, WILLIAMS and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy Simmons, Sam Cook, Damand Matthews and several other defendants were charged with conspiring to distribute large quantities of narcotics in Evansville, Indiana. Some of the defendants pled guilty, but the named defendants exercised their right to a jury trial, during which they were faced with evidence that included the description of a controlled buy, the testimony of some alleged members of the conspiracy, and voice identifications from incriminating wiretapped conversations between the defendants. The jury convicted the defendants, and all were sentenced to life except Cook, who received over 20 years' imprisonment. The defendants raise a host of legal challenges on appeal, which we summarize here and analyze in further detail below.

The majority of the defendants' arguments lack merit, having clearly been foreclosed by our precedent. First, it was not error for the district court to utilize a jury form asking the jury to find that each defendant was responsible for more than a specific amount of drugs. Second, life sentences for participation in a drug conspiracy do not violate the Eighth Amendment under current precedent. Third, the clerical error in the warrant affidavit for the wiretaps that formed the basis of this prosecution did not prejudice the defendants, and we see no reason to exclude evidence supported by a valid warrant and ample probable cause. Fourth, defendant McGhee's confession, which he gave after asking to speak to a detective and without being subjected to an interrogation, was voluntary and admissible. Fifth, the district court was within its discretion to exclude the testimony of Agent Douglas Freyberger, whom defendants Hoskins and McGhee wanted to question regarding statements that co-defendant Lamont Robinson made during his guilty plea colloquy, because it was hearsay. Sixth, the district court correctly refused to grant defendant Matthews's request for a jury instruction on a lesser included charge because the proposed lesser charge contained elements distinct from the drug conspiracy charge, and so it did not meet the legal definition for "lesser included charge." And finally the government's comment, made during closing arguments, on the defendants' failure to offer testimony to contradict the government's evidence did not violate their Fifth Amendment rights because it was not a direct comment on their failure to testify and many non-defendants existed that could have been called to counter the government's position.

Defendant Cook's case is more troubling. After initially identifying Cook's voice on wiretaps based on approximately sixty words he spoke during two pretrial appearances, Detective Cliff Simpson gave additional testimony on rebuttal that he also listened to Cook speak with his counsel for ten to fifteen minutes before a court proceeding. He testified that, based on hearing that conversation, he was confident that it was Cook's voice on the wiretaps. In addition to the obvious concerns raised by the idea of a detective listening to a conversation between a defendant and counsel, Detective Simpson's testimony presents serious evidentiary issues. By allowing this testimony, the court created a conflict of interest—only Cook and his attorney were in the position to refute the detective's claim by testifying that this conversation never took place. This conflict of interest went unresolved, and Detective Simpson's testimony was admitted without Cook having the opportunity to contradict it. Because the testimony was admitted, we cannot be sure how much weight the jury gave to his initial identification versus how much weight it gave to his later testimony that he recognized the voice based on hearing Cook speak with his lawyer for ten to fifteen minutes. So, given the scant evidence to implicate Cook in this conspiracy aside from the flawed voice identification, we must vacate his conviction and remand for a new trial.

I. BACKGROUND

Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy Simmons, Sam Cook, and Damand Matthews were part of a conspiracy to distribute large quantities of cocaine and cocaine base in the greater Evansville, Indiana area. Simmons, McGhee, and later Matthews's girlfriend Sherita Nesbit would drive from Evansville to Chicago in order to get cocaine from Simmons's supplier. When they returned, they converted the cocaine to crack and distributed it to the other defendants to sell on the streets. The government charged all the defendants with conspiracy, along with Nesbit and Lamont Robinson. At trial, the government presented substantial evidence, including audiotapes from a three-month long wiretap on several of the defendants' phones, Nesbit's testimony, the testimony of Stanley Pike (an original member of the conspiracy), evidence relating to several controlled buys, and evidence of police surveillance of the defendants. A jury found all of the defendants guilty, and the district court sentenced all the defendants to life imprisonment, except for Cook, who received 257 months' imprisonment. On appeal, the defendants do not challenge the sufficiency of the evidence against them. Instead, they present several legal arguments. Because all the relevant disputes are legal in nature, we will detail any additional facts necessary in the context of our analysis below.

II. ANALYSIS

A. Defendants' Jury Form and Eighth Amendment Arguments

The defendants' first two legal challenges do not warrant much discussion. First, they argue that the district court erred by failing to provide separate jury forms for each defendant because the jury could have found that different defendants were responsible for different drug quantities. Instead, the verdict form only asked the jury to find that each defendant was responsible for more than 50 grams of cocaine. We have already foreclosed this argument. See United States v. Seymour, 519 F.3d 700, 710 (7th Cir.2008) (holding that jury was not required to make a defendant-specific drug quantity determination in prosecution for conspiracy); see also United States v. Tolliver, 454 F.3d 660, 669 (7th Cir.2006). Second, the defendants argue that a life sentence for participation in a drug conspiracy is disproportionate to the crime committed, amounting to a cruel and unusual punishment that violates the Eighth Amendment. However, as the defendants conceded at oral argument, we have rejected this argument before, and while the contention is by no means merit less, there is existing Supreme Court precedent on this issue. See, e.g., Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); see also United States v. Strahan, 565 F.3d 1047, 1052-53 (7th Cir.2009) (citing Lockyer and Ewing).

B. The Wiretap Warrant

The Drug Enforcement Agency ("DEA") asked a confidential informant ("CI") to conduct four controlled buys with Defendant Simmons. Each time, the CI called one of Simmons's cell phones to set up the drug purchase. The DEA used the CI's statements and agents' surveillance of the controlled buys as the primary basis to establish probable cause in the warrant affidavit seeking a wiretap on Simmons's cell phones. In the warrant affidavit, as required by 18 U.S.C. § 2516(1), the Deputy Attorney General, relying on and citing Attorney General Order No. 2887-2005 ("Order 2005"), stated that he authorized the DEA to request these wiretaps. However, at the time the affidavit was filed, Order 2005 had been rescinded and replaced by Attorney General Order No. 2887-2007 ("Order 2007"). Order 2007 is materially the same as Order 2005, and also gives the Deputy Attorney General the authority to approve a request for a wiretap. A federal magistrate judge found that probable cause existed and approved the warrant for the wiretaps.

On appeal, the defendants contend that the wiretap evidence should be suppressed because it relied on an invalid executive order. In doing so, they rely on 18 U.S.C. § 2518(10)(a), which allows an aggrieved defendant to move to suppress wiretap evidence if: "(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." None of these applies here. Given that Order 2007 authorizes the same official to approve the wiretap request as Order 2005 previously did before its repeal, the defendants cannot show that they were in any way prejudiced by what in effect amounted to replacing a "7" with a "5" in the warrant affidavit. Even if citing to the incorrect order was an egregious violation, the defendants do not argue why suppression is the appropriate remedy given that the DEA acted in good faith. See United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) (holding that misidentification of the officer authorizing the wiretap does not require suppression because it did not "affect the fulfillment of any of the reviewing or...