US v. Spiller, PLAINTIFF-APPELLEE

• Decision Date: 17 August 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-3043,00-3043
• Citation: 261 F.3d 683
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. ERNEST SPILLER,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 683

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

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ERNEST SPILLER, DEFENDANT-APPELLANT.

No. 00-3043

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued March 1, 2001

Decided August 17, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 99 CR 30120--William L. Beatty, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Harlington Wood, Jr., Manion, and Diane P. Wood, Circuit Judges.

Manion, Circuit Judge

Ernest Spiller was indicted and found guilty on five counts relating to his sale of crack cocaine and possession of firearms. Spiller appeals his conviction and sentence, claiming that the district court committed several errors. We reject his claims and affirm.

I. Background

On July 1, 1999, at two different times, a confidential informant purchased 3.3 grams and 1.9 grams of crack cocaine from Ernest Spiller at his residence in East St. Louis, Illinois. Based on the confidential informant's purchases, the next day federal agents obtained a search warrant for the residence. During the search, the agent recovered numerous incriminating items, including $6000 cash (including the marked buy money), an elaborate home security system, a scale with crack residue, a cocaine user handbook and other drug paraphernalia such as cans with false bottoms, plastic baggies, bongs, test tubes and beakers. The agents also found approximately 12 weapons in the home. In addition, the agents found handwritten ledgers contain ing words and phrases, such as "I cook you cook," "powder," "cut," "soda," and numbers associated with references to "grams." However, other than the crack residue on the scale, the searchers found no crack cocaine.

In a superseding indictment, Spiller was charged with five offenses: Count I, distributing 3.3 grams of crack cocaine in violation of 21 U.S.C. sec. 841(a)(1); Count II, distributing 1.9 grams of crack cocaine in violation of 21 U.S.C. sec. 841(a)(1); Count III, maintaining a place for the purposes of manufacturing, distributing and using crack cocaine between November, 1998 and July 2, 1999, in violation of 21 U.S.C. sec. 856; Count IV, possession of a firearm in furtherance of the drug trafficking crime charged in Count III, in violation of 18 U.S.C. sec. 924(c); and Count V, possession of a firearm by a convicted felon¹ in violation of 18 U.S.C. sec. 922(g)(1).

Spiller pleaded not guilty as to all five counts and a jury trial commenced on November 29, 1999. The parties stipulated that the ledgers were seized at Spiller's residence and that certain entries fell within the time period of the superseding indictment.² The seizing officer, Kurt Eversman, testified that the ledgers contained "a lot of names with money owed, money paid. It has a lot of things that refer to grams, ounces, soda, cook, just basically different references for the drug trade and information that shows that drug sales were going on." Spiller did not object to this testimony. However, when the government initially sought to introduce the ledgers into evidence, Spiller's attorney objected, stating, "Judge, I'm going to object to the relevancy and that they are immaterial and uncorroborated at this time of the admission of these ledgers." The district court overruled the objection without explanation and admitted the ledgers into evidence.

The government then used two expert witnesses to explain the ledgers. The first witness, William Storer, a handwriting expert, testified that the ledgers contained similar handwriting to Spiller's writing samples. Spiller's attorney did not object to Storer's testimony.

The second witness, Harold Daniel Clouse, an FBI special agent and Drug Records Analyst with over nine years experience in the field, testified that the ledgers were the records of an illicit drug distribution business, and that during the period from November, 1998 to July 2, 1999, Spiller had produced a minimum of 28,583 grams of crack cocaine. Clouse based his conclusion on the terminology, weights and price per unit he noted in the records and the overall appearance of the documents. Clouse also concluded that the ledgers reflected sales to numerous customers during the relevant time period. On cross-examination, Clouse admitted that the ledgers were unintelligible even to people who normally prosecute and investigate drug cases. However, he testified that, where he was unsure as to the meaning of a notation, he did not include those figures in his calculation. He also stated that the records were fairly well kept and detailed. Clouse did not interview Spiller or any other witness regarding the ledgers. Spiller's attorney objected only once to Clouse's testimony.³ When the government sought to introduce into evidence a table reflecting the amount of cooked cocaine produced each month, she objected, claiming a lack of materiality, relevance and corroboration. In response, the government argued that the evidence was relevant to whether Spiller was maintaining a crack house, and therefore the ledgers were relevant and material. The district court overruled the objection and admitted the exhibit.

In addition to the expert witness testimony, the government produced a number of witnesses who testified that they had purchased various amounts of crack cocaine from Spiller on a regular basis. Glorina Jackson, known as "Glow," testified that during the relevant time period she purchased crack from Spiller and his wife, sometimes more than once a day. She testified that she bought approximately $300 of crack each month from Spiller. She also testified that she never saw Spiller with large amounts of cocaine and never saw him cook any crack cocaine. The next witness was Kim Davis, the informant who made the drug purchases on July 1, 1999. She testified that she purchased crack from Spiller and his wife two to three times per week, spending approximately $300 per week. Regarding the ledgers, Davis testified that some of the entries may have referenced amounts Spiller believed she owed him. Another witness, Samantha Sayles, known as "Missy," testified that she went to Spiller's house approximately five times per week and spent approximately $150 per week buying crack from him. She also testified that she never saw Spiller cook crack. Finally, Carol Garrett testified that she spent approximately $100 per week buying crack from Spiller and went to his home two to three times per week. The handwritten ledgers contain numerous references to "Kim," "Glo," and "Missy."

On December 2, 1999, the jury returned a verdict, finding Spiller guilty on all five counts. The government filed a pre-sentence investigation report suggesting that Spiller's offense level should be 38, based on relevant conduct for Counts I through III of manufacturing 28,000 grams of crack cocaine, as indicated in the ledgers. Spiller objected to the use of the handwritten ledgers to establish relevant conduct, arguing that they were uncorroborated. Spiller argued that the charged conduct only involved 5.2 grams of crack cocaine, which should have put him at Offense Level 20 for purposes of sentencing. In response, the government noted that Offense Level 38 only required proof of 1,500 grams. Concluding that there was sufficient proof of 1,500 grams of crack cocaine, the district court overruled Spiller's objections regarding relevant conduct.⁴

Spiller also filed a motion for downward departure based on his age, arguing that the statutory maximums, 30 years, would exceed his life expectancy. At the sentencing hearing, Spiller presented an offer of proof, arguing that according to the National Vital Statistics Report for Tables of Life Expectancy and taking into consideration his age and race, his life expectancy is 25.2 years. His expert, a registered nurse, testified that because he is a smoker, is probably hypoglycemic, has a family history of diabetes and, based on blood tests, has a potential for coronary artery disease, an additional 8.24 years should be subtracted, for a total life expectancy of 16.96 years. The district court rejected Spiller's request for a downward departure.

The district court then sentenced Spiller to the guideline minimums of 292 concurrent months on each of Counts I and II, 240 concurrent months on Count III, 60 consecutive months on Count IV, and 120 concurrent months on Count V, for a total of 352 months (or 29.33 years). Spiller appeals.

II. Discussion

Spiller presents four arguments on appeal. First, he argues that the district court erred in admitting the handwritten ledgers into evidence at trial because they are inadmissible hearsay. Second, he argues that the district court erred at sentencing by attributing 28,000 grams of crack cocaine to him as relevant conduct based on the ledger testimony. Third, he raises an Apprendi challenge because the district court sentenced him based on relevant conduct, which was not submitted to the jury and proven beyond a reasonable doubt. Last, he argues that the district court erred in sentencing him to a sentence in excess of his life expectancy. Spiller requests that his conviction be reversed, or that his sentence be vacated and remanded for re-sentencing. For the reasons stated below, we affirm.

A. Admission of Handwritten Ledgers

Spiller's first argument on appeal is that the district court erred in admitting the handwritten ledgers into evidence because they are inadmissible hearsay. Trial courts have broad discretion to admit or exclude evidence, and we review rulings dealing with the admission of evidence only for an abuse of discretion. See United States v. Swanquist, 161 F.3d 1064, 1073 (7th Cir. 1998).

The government argues that the drug records were initially admissible as "tools of the trade" for a crack house to show motive, intent, preparation, plan and knowledge. See Fed. R. Evid. 404(b). Such an admission allows the records to be used to show...