United States v. Allen, Frank Jr. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1678
United States of America,
Plaintiff-Appellee,
v.
Frank Allen, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-30133-WDS--William D. Stiehl, Judge.
Submitted September 20, 2001*--Decided October 19, 2001
Before Bauer, Manion and Evans, Circuit
Judges.
Bauer, Circuit Judge. Frank Allen, Jr.,
was tried and convicted for possession
with intent to distribute crack cocaine
in excess of five grams, and possession
of a firearm in furtherance of drug
trafficking; violations of 21 U.S.C. sec.
841(a)(1) and 18 U.S.C. sec. 924(c),
respectively. He now appeals his
convictions claiming the district court
committed several errors by admitting
evidence improperly and allowing
inappropriate statements by the
prosecutor during closing arguments. For
the following reasons, we affirm the
convictions.
I. BACKGROUND
On February 5, 2000, in the City of East
St. Louis at approximately 1:00 a.m.,
East St. Louis Detective Anthony Crawford
saw a blue Buick disobey a stop sign.
Detective Crawford pursued the vehicle
which disobeyed several other stop signs
and made an illegal left turn onto the I-
55 highway entry ramp. As the vehicle
made its way onto the highway, Detective
Crawford observed the passenger throw
several small plastic bags out of the
car. Detective Crawford’s pursuit was
joined by Detective Brian Lammers and
Detective Sergeant Nick Mueller. The
three officers, in separate cars, were
able to bring the vehicle to a stop using
a technique called a "rolling roadblock."
The vehicle’s occupants were ordered to
exit and they refused. The officers then
drew their weapons and approached the
vehicle, and forcibly removed the
occupants from the car. As the passenger
was pulled from the car, Detective
Lammers noticed him place something near
the seat. Detective Crawford used his
flashlight to search for the item
Detective Lammers had seen the passenger
place near the seat. Detective Crawford
found a small plastic bag containing an
off-white, rock-like substance which was
subsequently identified by the Illinois
State Police Forensics Lab as 0.6 grams
of crack cocaine. The driver was
identified as Leann Clover, and the
passenger was identified as Frank Allen,
Jr. Clover and Allen were taken into
custody, but later released pending
charges.
On February 27, 2000, around 2:28 a.m.,
Detectives Mueller, Lammers, Curtis Hill,
and Officer Dan Hill went to the
Hillcrest Motel in East St. Louis. The
detectives had been given information by
an informant that distribution of crack
cocaine was occurring on the premises.
The detectives went to the office and
spoke with Eugene Stewart, the
manager./1 They advised Stewart that
they had information that a man named
"Frank" was distributing crack in the
motel and asked for consent to search the
motel office and living quarters. Stewart
agreed and signed a written consent form.
Upon entering, the detectives found
three females sitting on a mattress and
Frank Allen, Jr. standing in the room.
Allen, seeing the detectives, immediately
ran down a hallway and went into a
bathroom. Detective Lammers pursued Allen
into the bathroom and observed Allen
reach into a shelf in the closet, place
an item on the shelf, and begin to close
the closet door. Detective Lammers
secured Allen and found the item Allen
had placed on the shelf. The item was a
plastic bag containing smaller bags with
an off-white, rock-like substance in
each, later identified by the Illinois
State Police Forensic Lab as 5.2 grams of
crack cocaine. The detectives searched
the rest of the living quarters, finding
other drug related items and a loaded .38
caliber revolver in a garbage can under a
garbage bag. Allen, Stewart, and the
three females were all taken into
custody.
Stewart and the three females all gave
statements to the police as to what had
occurred in the motel that evening. One
of the females, Rita Davis,/2 told the
police that Allen had a revolver with a
gold end, which was similar to the one
found in the garbage can. The Illinois
State Police Forensic Lab found a
fingerprint on the revolver and compared
it to Allen’s fingerprints; the two were
determined to match. Allen was indicted
on three counts, two for distribution of
crack and one for possession of a firearm
in furtherance of drug trafficking, all
stemming from the events described above.
At trial, the United States called
Special Agent Larry Fox of the Drug
Enforcement Administration (DEA), as an
expert on drug trafficking. A hearing was
held to determine if Agent Fox was an
expert. The district court found that
Agent Fox was qualified to testify as an
expert under Federal Rule of Evidence 702
and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597
(1993), as to the customs and tools of
the trade of narcotics trafficking. The
defense objected to his testimony
relating to weapons used in drug
trafficking at both the hearing and
trial. Agent Fox testified that the
amount of drugs found at the motel was
indicative of drug distribution and not
personal use. He also testified that it
is common for drug dealers to keep
weapons to protect themselves and their
drugs. The jury convicted on the second
and third counts of the indictment,
stemming from the events at the motel,
and returned a verdict of not guilty on
count one, relating to the events that
occurred in the car.
II. ANALYSIS
A. Expert Testimony
When a challenge is made to the
acceptance or rejection of expert
testimony on appeal, we review whether
the trial court properly applied the
Daubert framework de novo. United States
v. Hall, 165 F.3d 1095, 1101 (7th Cir.
1999). If we determine that the trial
court properly applied the Daubert
framework, we review the decision to
admit or exclude expert testimony for an
abuse of discretion. United States v.
Brumley, 217 F.3d 905, 911 (7th Cir.
2000).
Rule 702 provides that an expert may
testify if they have "specialized
knowledge," are qualified based on
"knowledge, skill, experience, training,
or education," and the expert’s testimony
"will assist the trier or fact to
understand evidence or to determine a
fact in issue." Fed. R. Evid. 702. The role
of the district court as a "gatekeeper"
is to determine if the expert opinion is
reliable and relevant to the case at
hand. Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999); Daubert, 509
U.S. at 597. We note that the trial court
has considerable latitude in determining
"whether Daubert’s specific factors are,
or are not, reasonable measures of
reliability in a particular case." Kumho
Tire, 526 U.S. at 152-53.
Allen contends that Agent Fox’s
testimony regarding the link between the
gun found at the motel and drug traffick
ing was simply a subjective lay opinion
and not an expert opinion./3 Agent Fox
received education and training in the
field of narcotics trafficking. He has
considerable experience in the field,
working as a police officer for twenty-
six years and with the DEA for thirteen
years, and has investigated over two
hundred drug cases. His opinion was also
based on a full examination of the police
reports, which included the statements of
the witnesses as well as the police
officers present at the scene. We
conclude that the district court properly
found that Agent Fox was a qualified
expert in the field of narcotics
trafficking and that his opinion
wasreliable and relevant. See id. at 152
(holding that a district court performs
its role as gatekeeper by making certain
that an expert, whose testimony is based
on experience, "employs the same level of
intellectual rigor that characterizes the
practice of an expert in the relevant
field."); Fed. R. Evid. 702 advisory
committee’s note (noting that "[i]n
certain fields, experience is the
predominant, if not sole, basis for a
great deal of expert testimony.").
Moreover, we have allowed expert
testimony "concerning the ’tools of the
trade’ and the methods of operation of
those who distribute various types of
illegal narcotics" because the "average
juror is unlikely to be knowledgeable
about drug trafficking." United States v.
Hubbard, 61 F.3d 1261, 1274-75 (7th Cir.
1995); see also United States v. Pigee,
197 F.3d 879, 891 (7th Cir. 1999); United
States v. Neeley, 189 F.3d 670, 682-83
(7th Cir. 1999). Agent Fox’s testimony
did not establish that Allen had a gun,
it simply aided the jury in determining
why he had a gun. See United States v.
Sanchez-Galvez, 33 F.3d 829, 832 (7th
Cir. 1994) ("Expert testimony provides
the trier of fact with an opinion about
the inferences which may be drawn from a
complex set of facts."). Allen’s attorney
throughly cross-examined Agent Fox,
attempting to attack his rationale.
However, Allen failed to convince the
jury that he was not in possession of a
gun to protect his drugs, probably
because the fingerprint and eyewitness
evidence indicated that the gun found be
longed to him. Had the jury determined
that the gun did not belong to Allen, it
was free to disregard Agent Fox’s
explanation. Agent Fox’s testimony was
based on, and supported by, his
considerable experience with the customs
and tools of the drug trade and his
review of the police reports. Therefore,
we conclude that the district court
properly performed its gatekeeping role
in determining that Agent Fox’s expert
testimony was reliable and relevant to
the facts of the case.
1. Brady Violation
Allen also argues that the prosecution
should have provided him with exculpatory
Brady material. Brady v. Maryland, 373
U.S. 83 (1963); Giglio v. United States,
405 U.S. 150 (1972). To prevail on a
Brady claim, Allen would need to show
that there was evidence which was
favorable to him, material to the case,
and suppressed by the prosecution. Id. at
833. Allen has utterly failed to show any
indication of a Brady violation.
B. Cumulative Error
Cumulative errors, while individually
harmless, when taken together can
prejudice a defendant as much as a single
reversible error and violate a
defendant’s right to due process of law.
Taylor v. Kentucky, 436 U.S. 478, 487
n.15 (1978); United States v. Haddon, 927
F.2d 942, 949-50 (7th Cir. 1991). To
demonstrate cumulative error, Allen must
establish that "(1) at least two errors
were committed in the course of the
trial; (2) considered together along with
the entire record, the multiple errors so
infected the jury’s deliberation that
they denied the petitioner a
fundamentally fair trial." Alvarez v.
Boyd, 225 F.3d 820, 824 (7th Cir. 2000),
cert. denied, 121 S. Ct. 1192 ( 2001). We
review to determine if "the effect of the
errors, considered together, could not
have been harmless," or "[p]ut another
way . . . that but for the errors, the
outcome of the trial probably would have
been different." Id. at 825. If there are
no errors or a single error, there can be
no cumulative error. Id.
Allen contends that three errors were
committed at trial. The first of these,
the admission of Agent Fox’s expert
testimony, we have determined to be
proper and do not consider again. Allen
contends the second error was the
admission of inadmissible hearsay in the
form of a statement by Detective Lammers
made during his direct examination.
Detective Lammers, while giving
background information as to why he went
to the motel and what occurred prior to
the search, stated that an informant had
told him "a guy by the name of Frank was
inside" the motel. What Allen fails to
understand is the basic definition of
hearsay. Rule 801 defines hearsay as "a
statement, other than one made by the
declarant while testifying at the trial
or hearing, offered in evidence to prove
the truth of the matter asserted." Fed. R.
Evid. 801(c) (emphasis added). The
statement by Detective Lammers was not
hearsay because it was not offered to
prove that "a guy by the name of Frank
was inside the motel." Instead, it was
offered as simply a recitation of what
the officers told the motel manager when
they sought his consent to search the
motel. Therefore, we conclude that the
statement was not hearsay and was
properly admitted.
The third error Allen contends
prejudiced his case was a statement by
the prosecutor during closing arguments.
In his final comment to the jury, the
prosecutor asked the jury to "[w]rite a
verdict you can be proud of, a verdict
that you know is the correct verdict
under the law and evidence in this case .
. . ." The prosecutor’s comment, while
appealing to community sentiment, merely
called on the jury to consider the
evidence and render a decision based on
the law and evidence. Moreover, even if
we found it to be an error, it would
amount to the only error in this case,
completely precluding a finding of
cumulative error.
CONCLUSION
Because the district court properly
admitted the expert testimony and did not
commit any errors, cumulative or
otherwise, we Affirm the convictions.
FOOTNOTES
/* On September 5, 2001, the parties filed a
joint motion to waive oral argument. Fed. R.
App. P. 27(d). An order granting the joint
motion and vacating oral argument was entered
September 18, 2001, and the case was submitted
on the briefs and record on September 20, 2001.
Fed. R. App. P. 34(f).
/1 The motel manager in this case is more aptly
described as a caretaker because the motel had
been closed for over two years and his duty was
to keep watch over the property.
/2 Rita Davis is the "street name" of Maurita Giv-
ens; at trial she was referred to as Ms. Davis.
/3 Allen does not challenge Agent Fox’s testimony
that the amount of drugs Allen had indicated the
drugs were possessed for distribution and not
personal use. Furthermore, Allen concedes that
this circuit has specifically "acknowledged a
role for such testimony" under Daubert "and its
progeny." Appellant’s Brief at 9.