USA v. C. Bell

• Decision Date: 20 October 2010
• Docket Number: No. 09-3908,09-3914.,09-3908
• Citation: 624 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher C. BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

624 F.3d 803

UNITED STATES of America, Plaintiff-Appellee,
v.
Christopher C. BELL, Defendant-Appellant.

Nos. 09-3908, 09-3914.

United States Court of Appeals,Seventh Circuit.

Argued May 21, 2010.
Decided Oct. 20, 2010.
Rehearing En Banc Denied Nov. 29, 2010.

624 F.3d 804

COPYRIGHT MATERIAL OMITTED.

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David Reinhard (argued), Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Mark P. Maciolek (argued), Attorney, Madison, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and TINDER, Circuit Judges.

TINDER, Circuit Judge.

A jury convicted Christopher Bell of distributing more than five grams of cocaine base. See 21 U.S.C. § 841(a)(1). The district court sentenced him to 292 months in prison, revoked his previous term of supervised release, and sentenced him to an additional 60 months for violating the conditions of his supervised release by committing another crime. Bell now appeals several of the court's evidentiary rulings and contends that the prosecutor made inappropriate comments during closing argument. His companion appeal challenges the revocation of his previous term of supervised release. After argument, at Bell's request, we ordered supplementary briefing regarding the application of the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010), to his case. We now affirm in all respects.

I. Background

On January 13, 2009, Christopher Bell met with Brian Dorenzo in a Wal-Mart parking lot in Beloit, Wisconsin, and “fronted” him 5.69 grams of crack cocaine. Bell was unaware that Dorenzo was acting as a government informant, and he made several incriminating statements that were captured by recording equipment hidden in Dorenzo's pocket. For instance, Bell parried Dorenzo's request for a “little tester piece” by stating, “My name is the

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test,” and assured Dorenzo, “I guarantee what they got right there is better than anything they got.” Bell also mentioned that he might be difficult to contact because he frequently traveled between Beloit and other regional cities, and boasted, “I got the best dope in the Midwest.” The following day, Bell and Dorenzo reconvened in the parking lot and Dorenzo paid Bell $200 in government-supplied cash for the fronted crack. The monetary transaction was not captured on tape due to an equipment malfunction.

Bell, who had recently been discharged from a federal halfway house and was still on supervised release, was later arrested after a traffic stop and charged with distributing five or more grams of cocaine base in connection with the January 13 transaction. See 21 U.S.C. § 841(a)(1). At his trial, the government played for the jury and introduced into evidence the two-minute audio recording of the January 13 transaction. It also called Dorenzo, who explained that he began cooperating with law enforcement officials after Bell approached him at the halfway house and tried to get him to sell cocaine. Dorenzo related his version of events, including the details of his pre-transaction preparations (such as the search of his person and car) and his post-transaction payment by law enforcement. The government also presented the testimony of five law enforcement officers involved with the controlled buy, several of whom testified about viewing the drug transaction and subsequent settling up. One of them testified about a video she took of Bell in the Wal-Mart parking lot near the time of the deal; the video was played for the jury and introduced into evidence.

Bell took the stand in his own defense. He denied delivering crack to Dorenzo. Instead, he explained that he had a “giving heart” and often loaned money and provided other assistance to halfway house residents like Dorenzo, who were short on cash and could not readily obtain items like weight loss pills. Tr. 72, Sept. 15, 2009. Bell testified that he and Dorenzo had discussed Bell's weight loss and that Dorenzo had expressed an interest in trying Hydroxycut, a brand of diet pills to which Bell attributed his success, but did not have the money to purchase the pills. (Hydroxycut pills can be legally purchased over the counter.) Bell testified that he agreed to give Dorenzo some Hydroxycut pills as well as a $200 loan. Bell said that on January 13, he met Dorenzo at Wal-Mart and gave him ten Hydroxycut pills and two one-hundred dollar bills. (The officers who searched Dorenzo and his car after the Wal-Mart rendezvous testified that they found neither cash nor pills.)

Bell maintained that the tape recording of the January 13 meeting was consistent with his account. According to Bell, when he said, “I got the best dope in the Midwest,” he was referring to the Hydroxycut pills. He also testified that the term “dope” was not used to refer to crack cocaine in the Beloit, Wisconsin, area, and that individuals in his social circle often referred to their personal geographic origins (i.e., “the Midwest”) when “conversating” with one another. He further explained that he was referring to his own positive experience with Hydroxycut pills when he said, “My name is the test.”

Bell's “giving heart” theory was supported by his brother-in-law and a former halfway house resident, who testified that Bell loaned them money and that Bell and others referred to diet pills as “dope.” Bell also put forth the alternative theory that Dorenzo set him up to get him back in prison so incarcerated gang members could carry out a retaliatory “hit” on him. Bell's ex-wife offered testimony in support of this theory, and Bell explained that he

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was aware of the hit and had mentioned his frequent travel between Midwestern cities during the January 13 transaction to throw Dorenzo (and the gang) off his trail.

Over Bell's relevance objection, the government cross-examined Bell about a letter he sent to Reggie Booker, a former roommate of his at the halfway house. In the letter, which was admitted into evidence in full as Government Exhibit 9, Bell wrote to Booker, “I need you to testify to the truth of me loaning money, too you like $20 and you would give it back.... Also that I was loaning money too people and they would give me extra back....” The letter went on to ask Booker to testify that Bell lost weight by walking, working out, and using Hydroxycut and Lipo-6 diet pills. The letter further instructed Booker to testify about “the times you would call me to bring you CD's I would make or bring you food,” and asked him to “explane that how we use too talk about how we hated drugs, and would never go back too that lifestyle, also, explane how I felt like my life, was endanger and knew that it was a hit out on my life.” At the top of the letter, Bell directed Booker to “Please get rid of this in the to[ilet] when your done,” and at the bottom he reiterated, “Please get rid of this when done reading.” (All errors in original.) Bell admitted that he wrote the letter and sent it to Booker a few weeks before trial, but denied that he was attempting to sway Booker's testimony.

The government also called Booker as a rebuttal witness over Bell's relevancy, prejudice, and “other acts” propensity objections. Booker testified that Bell called him and sent him two letters about testifying in the case, including Exhibit 9. He stated that he was not conforming his testimony to Bell's requests because he did not want to commit perjury. Booker instead testified that after Bell's release from the halfway house he returned frequently to visit Booker. Booker explained that while Bell did bring him things like CDs, the delivery of sundries was merely a guise under which Bell sought to discuss “processing cocaine” and “dope transactions” with him. On one occasion, Booker testified, Bell asked him to cook five kilograms of cocaine into crack.

Bell returned to the witness stand on surrebuttal and denied asking Booker to cook cocaine. He also denied that the letters were an attempt to influence Booker's testimony. Bell characterized the letters as attempts to get Booker to come to trial to testify about the truth; he explained that he “wanted him to come testify because he knew the truth about me loaning money to different individuals such as his [sic] self, bringing discs for him, food there for him.” Tr. 148, Sept. 15, 2009. The defense did not present any further surrebuttal.

During closing argument, the government quoted from and played for the jury the tape of Bell's meeting with Dorenzo. It also walked the jury through the other evidence against Bell, including Booker's testimony that Bell solicited him to cook crack cocaine. The defense made no objections, though it did ask the court to instruct the jury that it could only use Bell's request that Booker cook cocaine as evidence of Bell's credibility. The court delivered the requested instruction. After deliberating for a short period, the jury found Bell guilty of violating 21 U.S.C. § 841(a)(1).

The district court later sentenced Bell to a within-Guidelines prison term of 292 months, to be followed by 96 months of supervised release. The court also found that Bell's new conviction constituted a “Grade A” violation under the Sentencing Guidelines, see U.S.S.G. § 7B1.1(a)(1), and, in accordance with 18 U.S.C. § 3583(g)(1)

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and U.S.S.G. § 7B1.3(a)(1), revoked his supervised release. It sentenced him to the statutory maximum of 60 months' imprisonment for violating the conditions of his supervised release, but ordered that the time be served concurrently with his 292-month sentence.

II. Discussion

Bell challenges the admission of his letter to Booker, the admission of Booker's rebuttal testimony about Bell asking him to cook five kilograms of crack, and the propriety of the government's closing argument. He also seeks the benefits of the recently enacted Fair Sentencing Act of 2010. We consider his arguments in turn.

A. Bell's Letter to Booker

Bell's first contention is that the district court erred when it...