USA. v. Ward & Ellis

• Decision Date: 28 April 2000
• Docket Number: Nos. 98-2657,s. 98-2657
• Citation: 211 F.3d 356
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT DANIEL WARD and RODNEY ELLIS, Defendants-Appellants. & 98-2812
• Court: U.S. Court of Appeals — Seventh Circuit

Page 356

211 F.3d 356 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT DANIEL WARD and RODNEY ELLIS, Defendants-Appellants.

Nos. 98-2657 & 98-2812

In the United States Court of Appeals For the Seventh Circuit

Argued October 27, 1999

Decided April 28, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 730--Charles P. Kocoras, Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., FLAUM, and EVANS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

On June 16, 1997, a multi-count second superseding indictment was filed in the Northern District of Illinois charging Robert Daniel Ward and Rodney Ellis, along with nine codefendants, for conduct relating to a large-scale drug distribution conspiracy. The tremendously successful conspiracy was organized and supervised by Nathan "Nate" Hill who began distributing cocaine in the Chicago area in the late 1980s. Ward and Ellis were each convicted on two counts of the indictment following a jury trial. On appeal, Ward raises several challenges to his conviction. Ellis also appeals, challenging his sentence.

I. BACKGROUND

The Hill conspiracy distributed thousands of kilograms of cocaine in the Chicago area between 1987 and December 1995. Hill obtained this cocaine from a variety of suppliers. Ward, who was based in Los Angeles, California, was one of Hill's large-scale suppliers. Ward employed a number of couriers, some of whom were supervised by Donald Marini and Cameron Wright, to transport large quantities of cocaine from California to Chicago. Hill then acted as a wholesaler, selling multi-kilogram quantities of cocaine to distributors in the Chicago area. After several of his couriers were arrested, Ward began chartering Lear jets to transport cocaine to Chicago. Between March 1, 1994 and October 7, 1994, for example, Ward chartered eight trips to Chicago through Sussex Aviation in Van Nuys, California. Testimony was presented at trial that each charter trip involved the transportation of approximately fifty kilograms of cocaine.

Drug trafficking provided Hill with sizable profits which he used to purchase homes, cars, boats, and, eventually, a four-engine JetStar aircraft. Hill also sought legitimate business opportunities through which he could launder his drug proceeds. One of these businesses was Pocketown Records, a record producing and manufacturing business formed in 1993 by Nate Hill and Michael Jefferson. At Hill's direction, Rodney Ellis, a cousin to Hill, participated in the operation of Pocketown Records. Ellis managed Pocketown's daily operations and financial activities. Pocketown's expenses were paid primarily in cash. For example, no salary checks were issued; instead Hill handed out cash payments to Pocketown workers. On several occasions, Ellis transported large amounts of cash from Chicago to Pocketown, which was located in New York, and at other times, Ellis received deliveries of cash from other Hill employees. Ellis prepared false records for Pocketown in an attempt to justify the influx of cash to the business. Ellis also provided inaccurate information to the accountant who was preparing Pocketown's 1993 tax returns. Ellis then signed the falsified return and filed it with the IRS. Ellis later became involved in another of Hill's business ventures, the production of a motion picture entitled "Reasons" which was based on Hill's life story. Ellis played a limited role in the "Reasons" production, unsuccessfully attempting to persuade a recording company to produce the soundtrack for the film.

The initial indictment in the case was filed on December 13, 1995. It contained eighteen counts and named twenty-one defendants. A superseding indictment was filed on October 31, 1996, and on June 16, 1997, a second, and final, superseding indictment was filed. Ward was charged under Counts One and Four of the second superseding indictment. Count One alleged that Ward was involved in a conspiracy to distribute and to possess with intent to distribute mixtures containing cocaine in violation of 21 U.S.C. sec. 846. Count Four charged Ward with a violation of 21 U.S.C. sec. 841(a)(1) based on an alleged attempted distribution of approximately nine kilograms of cocaine on or about January 21, 1993. Ellis was charged in Counts Seven and Eight of the second superseding indictment. Count Seven charged Ellis together with several codefendants with conspiracy to defraud the United States, in particular the Internal Revenue Service, in violation of 18 U.S.C. sec. 371, while Count Eight charged Ellis and several codefendants with money laundering in violation of 18 U.S.C. sec. 1956(h). The case proceeded to a jury trial, and both Ward and Ellis were convicted on each of the counts against them. Ward was sentenced to 360 months imprisonment on each count with the sentences to run concurrently. Ellis was sentenced to 108 months imprisonment. A timely notice of appeal was filed in each case, and the cases have been consolidated for appeal.

II. ANALYSIS

Ward raises several challenges to his conviction, while Ellis challenges the district court's computation of his sentence. We address each appellant's argument in turn.

A. Robert Daniel Ward

Ward challenges the district court's rulings on his speedy trial motion and on several evidentiary motions. Ward further asserts that the district court erroneously limited the scope of his cross-examination of Donald Marini and erred in failing to sua sponte recuse itself. Finally Ward contends that the government committed prejudicial error based on a comment made during closing argument.

1. Speedy Trial Motion

Ward was arrested in Los Angeles, California on January 11, 1996 on charges stemming from a false application for a passport. While Ward was in custody on the passport charges, he was separately indicted in the Central District of California for narcotics violations based on his distribution of drugs to the Hill conspiracy. On October 11, 1996, a criminal complaint was filed in the Northern District of Illinois charging Ward with narcotics violations in connection with the Hill conspiracy. On October 18, 1996, the narcotics charges pending against Ward in the Central District of California were dismissed after prosecutors received the Illinois complaint and an accompanying bench warrant for Ward's arrest.

On October 21, 1996, Ward was sentenced to probation on the passport case. Ward, however, remained in custody in California based on the Illinois complaint and warrant. During November and December 1996, the United States Marshals Service for the Northern District of Illinois attempted to obtain custody of Ward through its normal channels. These attempts were complicated due to erroneous information received from the Marshals Service Prisoner Coordination Section that Ward could not be transported to Chicago because there were still charges pending against him in California. On January 7, 1997, Ward was brought before a magistrate judge in the Central District of California for an out-of-district process hearing at which time Ward asserted his speedy trial concerns. The magistrate noted Ward's objections and stated that Ward would need to raise them in the Northern District of Illinois following his transfer. On February 11, 1997, the Marshals Service in the Northern District of Illinois was informed that Ward was being held in California pending the results of his tuberculosis test.¹ Ward was cleared for transportation to Chicago on approximately February 26, 1997. He arrived in the Northern District of Illinois on either March 6 or 7 and made his first appearance before a judicial officer on March 13, 1997. On March 27, 1997, Ward filed a motion to dismiss the indictment, arguing that the delay from the time his California charges were resolved until he was brought before a judicial officer in the Northern District of Illinois violated his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. sec. 3161 et seq., the Sixth Amendment, and Federal Rule of Criminal Procedure 48(b). The district court denied Ward's motion. Ward's jury trial began on November 6, 1997.

By its express terms, the Speedy Trial Act does not apply in the present case. Under the Act, the trial of an accused must commence "within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. sec. 3161(c)(1). Ward challenges only the delay from the time charges were filed in the Northern District of Illinois until March 13, 1997, the day he first appeared before a judicial officer in the Northern District of Illinois. This time period is outside of the Speedy Trial Act, and because Ward does not allege any improper delay during the time his Speedy Trial Act clock was running, his Speedy Trial Act claim fails.

The Sixth Amendment right to a speedy trial is similar to, but separate from, the right created by the Speedy Trial Act. United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992). The Supreme Court has established a four-factor balancing test to use in determining whether a defendant's Sixth Amendment right to a speedy trial has been violated. See Doggett v. United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514, 530-33 (1972). Under this test, we must consider "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett, 505 U.S. at 651.

In determining whether the delay was uncommonly long, we must consider the interval between accusation and trial, here over a year. See Doggett, 505 U.S. at 651. As the...