United States v. Harris, Marcus L. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3884
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS L. HARRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 30083--Richard Mills, Judge.
Argued APRIL 4, 2001--Decided November 6, 2001
Before COFFEY, MANION, and DIANE P. WOOD,
Circuit Judges.
COFFEY, Circuit Judge. The defendant
Marcus Harris appeals his conviction for
selling powdered cocaine in the city of
Springfield, Ill., on November 11, 1998,
in violation of 21 U.S.C. sec. 841(a)(1).
A jury found Harris guilty as charged and
he was sentenced to 360 months
imprisonment, six years supervised
release, and a $100 special assessment.
On direct appeal of his conviction,
Harris argues that the prosecutor’s
closing argument included improper
commentary on his failure to testify, his
courtroom behavior, and misstatements of
the burden of proof, and he also claims
that the trial judge should not have
admitted evidence of uncharged drug
transactions. We affirm.
I. BACKGROUND
In early 1998, federal agents and local
police in Springfield, Ill., received
information from several confidential in
formants that defendant Marcus Harris was
involved in the sale of cocaine, and
resulting in Harris becoming the subject
of a drug investigation. On November 6,
1998, Springfield police officers, while
executing a search warrant, discovered
drugs and drug paraphernalia at the home
of a woman named Jill Nelson. Levannon
Berry Young, who had a lengthy criminal
record, was present in Nelson’s home at
the time of the raid. Young had known
Harris for some 15 years and had
purchased cocaine from Harris on numerous
occasions. Young agreed to assist the
officers in their investigation of Harris
and agreed to make a controlled purchase
of cocaine while wired with a recording
device and to testify truthfully for the
prosecution at Harris’ subsequent
trial./1
A. Harris’ Past Drug Dealing and the Use
of Code Language
During Harris’ trial, Young testified
that Harris mandated a strict set of
rules for those participating in his drug
transactions. Harris insisted that all
conversations, including telephone calls,
be conducted in a casual manner and that
drugs never be mentioned during any
transaction. Harris also insisted that
Young use personal code language when
discussing drugs. The code language was
of such importance to Harris that if any
one of his customers slipped up and
mentioned drugs or failed to use the code
system, Harris would terminate the
conversation. Young also testified about
Harris’ usual modus operandi for the
transfer of money and delivery of drugs.
Harris insisted on payment in advance of
any drug sale, and he would not designate
a meeting place for the transfer of drugs
until after payment had been made.
B. Young’s Purchase of Drugs from Harris
On November 10, 1998 (four days after
the drug raid at Jill Nelson’s
residence), Young reported to the FBI
that he had arranged a drug deal with
Harris and he was wired for voice
recordings at that time. On November 11,
1998, Young received a telephone call
from Harris suggesting a meeting at a
convenience store. Young proceeded to the
designated location, but Harris did not
appear.
While Young was on his way home, he
received another phone call from Harris,
and only Young’s side of the conversation
was recorded. According to Young’s
testimony explaining the recording of
this conversation, Harris stated that his
failure to appear at the meeting was
because he feared that a government
informant might be at the convenience
store,/2 but in spite of this fear they
agreed to meet at the same location.
After Young returned to the store and
joined Harris, the two men got into
Young’s car and again engaged in a
recorded conversation in which Harris
stated, "I workin’ with a deuce, man,
what you want to do?" to which Young
replied, "I want ’em . . . where we at?
On Eighteenth?" Harris’ response was,
"I’ll do that for you . . . . There just
ain’t no better than the Pres’dents."
Young testified at trial that Harris’
reference to "a deuce" was code for two
ounces of cocaine and that, "Where we at?
On Eighteenth?" was Young’s drug lingo
question asking Harris whether he would
sell the two ounces for $1,800. Young
further explained that Harris’ response,
"I’ll do that for you," meant that Harris
agreed to the price, and that Harris’
remark about "the Pres’dents" was a
reference to currency, or bills bearing
the presidents’ portraits. Testimony at
trial from Young and an FBI agent
established that there was no street
designated as "Eighteenth Street" in
Springfield, Ill., as of the date of the
offense (November 11, 1998). In the
dissenting opinion, the author takes
umbrage with this testimony and suggests
that there was an Eighteenth Street at
the time of the offense./3 In fact,
Eighteenth Street was redesignated
(named) in 1984, Dr. Martin Luther King,
Jr. Drive; a copy of the City of
Springfield ordinance, which is still in
effect, follows:
After the majority made clear with the
insertion of a copy of the Springfield
City Ordinance designating Eighteenth
Street as Dr. Martin Luther King Jr.
Drive in 1984, the dissent replied with
another assertion in this opinion: this
time, "that in common parlance the old
name has not died away" and that the
evidence on this point "was not so
overwhelming as the majority paints it to
be." In an attempt to undermine the
jury’s verdict, the dissent has failed to
support its position with even a
scintilla of evidence in the record.
Rather, the dissent has resorted to the
unprecedented tactic of citing extrinsic
materials gleaned from conflicting
Internet websites, newspaper articles,
and the negligent remarks of assistant
United States attorneys sprinkled in the
wholly separate pleadings of a wholly
separate case than the one at hand. Cf.
GE Capital Corp. v. Lease Resolution
Corp., 128 F.3d 1074, 1084 (7th Cir.
1997) (citing Cofield v. Alabama Pub.
Serv. Comm’n, 936 F.2d 512, 517 (11th
Cir. 1991), for the proposition that
daily newspapers are not reliable
evidentiary sources); Zell v. Bender,
Inc., 542 F.2d 34, 38 (7th Cir. 1976)
(declining to consider documents filed in
a companion case involving the same
parties and being heard by the same
district judge). Of course, these
materials were not submitted to the jury,
and we fail to see how the dissent can
logically attack the sufficiency of the
evidence presented at trial by pointing
to information that the jury never saw or
heard./4 See Taylor v. Kentucky, 436
U.S. 478, 485 (1978).
In short, there is no question that
Young and Harris extensively discussed
their drug transaction while they were
riding in the car together./5 After
arriving at Young’s house, Young went
inside and obtained $1,800 from
Springfield Police Detective James Graham
while Harris remained in the car.
Detective Graham observed Young leave the
house and enter his car, observed him
turning the money ($1,800) over to
Harris, and saw Harris put the money in
his pocket. The two men departed in
Young’s car and during their recorded
conversation Young was heard asking
Harris to sell the cocaine for $1,200
("what about twelve again"), and Harris
replied in the negative (in code) that
"the story is for you to meet me on
Eighteenth," (meaning that the price was
still $1,800).
At trial, Young testified that during
the ride he saw Harris count the money
and told Young that he (Young) was short
a hundred dollars from a previous drug
deal. Referring to the unpaid $100 Harris
stated, "I see you want me to take my
teaspoon out, a tablespoon," to which
Young replied, "Man, don’t take nothing
out of it man. It ain’t nothin’ but a .
. . dollar, . . . and I’ll have it when
you see me." Young testified that Harris’
reference to taking out a "teaspoon" or
"tablespoon" was a warning that he
(Harris) intended to remove a small
portion of the cocaine unless Young
repaid the $100 debt (referred to in the
conversation as "a dollar").
Young returned to his home where he was
searched by Detective Graham for money
and/or drugs and he was clean.
Approximately five minutes later, Young
received another phone call from Harris,
requesting that he meet him at a local
barber shop. After Young arrived at the
barber shop parking area, the agents
observing the area decided that
continuing visual surveillance would be
precarious because they believed that
they might be spotted. Young’s
conversation with Harris in the barber
shop parking lot was again recorded.
This tape was also played during the
trial and revealed that after some social
conversation, Harris instructed Young to
"look in the glove box" of his truck.
Young followed directions and discovered
two ounces of cocaine. The next comment
heard was that of Young speaking to
Harris and stating, "You spooked, man."
Young testified that he made this remark
to the defendant because Harris began
acting very suspicious and afraid at the
very time that Young opened the glove
box. Furthermore, when explaining the
"You spooked, man" comment to the court,
he went on to state that Harris at this
time was looking all around and seemed to
be nervously looking at all people in the
immediate area and observing "every
little detail" about the cars passing by.
On the tape recording, Harris is heard
telling Young, "Yeah, peep it, man. . . .
It’s tight, it’s on the knob." Young
interpreted this to mean that he should
examine the cocaine ("peep it"--look at
it) and that the bags contained exactly
two ounces of cocaine as agreed upon
("it’s on the knob"). At this point, a
loud sound was heard on the tape. Young
stated that this noise came about as a
result of the two one-ounce bags of
cocaine coming in contact with the
recorder as he dropped the bags of drugs
into his pocket. After the sale and
delivery from Harris, Young testified
that he immediately returned to his
residence and turned the cocaine and
recordings over to the officers. A
subsequent analysis confirmed that the
substance was cocaine, weighing 54.8
grams, thus corroborating Young’s
testimony that the two men made a deal
for a "deuce," or two ounces, of cocaine.
C. Closing Arguments
After the prosecution completed its
presentation, Harris decided not to
testify nor present any evidence. The
prosecutor began his closing argument
stating what he believed to be undisputed
facts. According to the government, the
undisputed facts were: 1) the defendant
met with Young three times within a 12-
hour period on the day of the offense; 2)
during the second meeting Detective
Graham witnessed Young hand the defendant
$1,800; and 3) that after his meeting
with the defendant a third time, Young
returned with two ounces of cocaine. The
government spent the remaining time
discussing the content of the tape
recordings. These tapes, according to the
prosecution’s theory, were of the utmost
importance in establishing Harris’ guilt.
For example, with regard to the recorded
conversation concerning "Sam," the
prosecution stated:
Now, that’s a perfectly plausible
explanation for this, or Sam being there,
but if this is an innocent meeting where
they were just going to shoot some pool,
why would the defendant be concerned
about Sam being there? The explanation
given by Berry Young is absolutely
unrebutted in this case.
(Emphasis added).
With regard to Harris and Young’s
conversation regarding "Eighteenth
Street," the prosecutor stated, "[y]ou
have to look at the context of what is
going on to understand what’s going on.
And I would love to hear some reasonable
innocent explanation for those references
to Eighteenth Street in the context
they’re in with the responses that the
defendant gives." (Emphasis added).
In concluding his closing argument, the
prosecutor referenced a pre-trial chance
encounter between Detective Graham,
Sergeant Benny O’Neal, and the defendant:
And as the defendant walks up to them,
makes a point of walking up to them,
shaking hands with Benny O’Neal and says,
"Hey, I hear your buddy Berry wore a wire
on him." And Benny O’Neal, "What? Who are
you talking about?" "Berry Young. I hear
he’s been talking to you for a year."
What was his manner? Cocky. Just like
it’s a joke. What’s been the defendant’s
manner during the trial? Cocky, like it’s
a joke. You’ll never catch me. I’m too
careful. But not careful enough.
(Emphasis added).
During the government’s rebuttal
argument, the prosecutor commented on
Harris’ demeanor in the courtroom:
Trust your own ears. The most important
witness in this case is not Berry Young.
We don’t trust him. We report what’s
said. The most important witness sits
right over there in the green jacket
[pointing to the defendant]. The guy
that’s had a smirk on his face during the
trial. It’s his words on the recordings
that convict him. . . . He is the most
important witness against himself,
because he got caught. Cagey though he
may be, have tried to be, he was not
nearly as smart as he thought he was.
****
We don’t have to prove that the defendant
was the only possible place Berry Young
could have obtained two ounces of
cocaine. What we do have to prove is did
Berry Young obtain those two ounces from
the defendant, beyond a reasonable doubt
. . . .
The issue is did Berry Young obtain these
two ounces which he brought back to Agent
Graham from the defendant? If we prove
that beyond a reasonable doubt, the
defendant is guilty. That’s the issue.
(Emphasis added).
The prosecutor then turned his attention
to the content of the tape recordings
introduced at trial:
It’s not Berry Young. Berry Young only
provides explanations, and it’s up to you
to make up your own mind, does that make
sense? Is that reasonable in the context
of this tape?
It’s the tape recording that is the
evidence. Berry Young is only providing
explanations of that evidence, and it’s
up to you to decide whether they make
sense, whether they’re reasonable.
Now I’ll suggest to you that yes, they’re
not only reasonable, they’re the only
reasonable explanation. There is no other
reasonable explanation of what the--for
what the defendant said. And if there is
no other reasonableexplanation, then
there is no reasonable doubt about what
happened.
****
Absent any reasonable alternative
explanation for the defendant’s comments
to Berry Young that the government says
related to drugs, . . . if there is no
other reasonable explanation for those
statements than that given by Berry
Young, there is no reasonable doubt about
where Berry Young got those two ounces.
There simply is no other reasonable way
to explain that defendant’s own statement
to Berry Young in the context in which it
was requested from the events that
transpired on both.
(Emphasis added).
During the trial, defense counsel raised
not one objection to any of the
prosecutor’s statements now objected to.
However, six days later, for reasons
unexplained, Harris and his counsel must
have suffered a change of heart and filed
a motion for a new trial, arguing that
the prosecutor’s comments made in his
closing argument were improper. The trial
judge, in denying the defendant’s motion,
ruled that the prosecutor’s comments were
not improper and, even if they were, any
error was harmless in view of the
overwhelming evidence of guilt in the
record.
II. ISSUES
On direct appeal, Harris argues that the
portions of the prosecutor’s closing
argument referred to prejudiced his right
to a fair trial by: 1) making indirect
references to Harris’ failure to testify;
2) making references to Harris’ off-stand
(courtroom) behavior; and 3) misstating
the burden of proof. Harris also argues
that the trial judge abused his
discretion when admitting evidence of
uncharged drug transactions between
himself and Young. We affirm.
III. ANALYSIS
A. Right to a Fair Trial
Claims that a prosecutor has tainted a
trial with improper remarks are analyzed
with a two-step inquiry. United States v.
Renteria, 106 F.3d 765, 766 (7th Cir.
1997). Initially, we consider the remarks
themselves to determine whether they
were, in fact, improper. United States v.
Cusimano, 148 F.3d 824, 831 (7th Cir.
1998). If the prosecutor’s remarks are
found to be improper, we then consider
whether they have impacted the fairness
of the trial based upon the content of
the entire trial record. Id. The
defendant’s burden concerning the second
prong of this test has been well-
articulated:
To carry this burden, [the defendant]
must show that it is at least likely that
the misconduct complained of affected the
outcome of the trial--i.e., caused the
jury to reach a verdict of guilty when
otherwise it might have reached a verdict
of not guilty.
United States v. Morgan, 113 F.3d 85, 89
(7th Cir. 1997); see also Renteria, 106
F.3d at 766; Cusimano, 148 F.3d at 831;
United States v. Badger, 983 F.2d 1443,
1456 (7th Cir. 1993).
When applying the harmless error
doctrine in assessing the impact of an
alleged improper comment by a prosecutor,
an otherwise valid conviction will not be
set aside unless the reviewing court
finds, based on the record as a whole,
that the error likely affected the
outcome of the trial. Rose v. Clark, 478
U.S. 570, 576 (1986). When harmless error
analysis is applied, a new trial may be
warranted when the error has a
"substantial and injurious effect or
influence on determining the jury’s
verdict." Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (emphasis added). We have
described our application of harmless
error analysis in the context of a
prosecutor’s commentary during closing
arguments as follows:
Because the prosecutor’s comments in this
case did not directly comment on
Ashford’s failure to take the stand or
present a defense, but rather were
addressed to the presence of
uncontradicted evidence . . . they
violated Ashford’s Fifth Amendment rights
only to the extent that the ’language
used was manifestly intended to be or was
of such a character that the jury would
naturally and necessarily take it to be a
comment on the defendant’s failure to
testify.’
* * *
Comments about a defendant’s failure to
testify do not necessarily mandate
reversal, however. The issue is whether
the error was harmless beyond a
reasonable doubt. The question of whether
the error was harmless in turn depends on
the strength of the evidence against the
defendant.
United States v. Ashford, 924 F.2d 1416,
1425 (7th Cir. 1991) (emphasis added,
internal quotations and citations
omitted).
In our review of the prosecutor’s
alleged improper comments we must also
take into consideration that Harris
failed to raise a contemporaneous and
specific objection to the alleged
improper remarks. To preserve an issue
for appellate review, a party must make a
timely and specific objection, in order
that he or she might alert the court and
the opposing party as to the specific
grounds for the objection during trial.
United States v. Vega, 860 F.2d 779, 789
(7th Cir. 1988). The failure to interpose
a timely and spe-cific objection results
in our reviewing the statements under the
plain error standard. See Fed. R. Crim.
P. 52(b); Renteria, 106 F.3d at 766. In
the context of alleged prosecutorial
misconduct, this standard mandates an
additional burden for the defendant to
demonstrate that the prosecutor’s
comments were "obviously" or "clearly"
improper. Renteria, 106 F.3d at 766-67.
1. Alleged Impropriety of the
Prosecutor’s Comments
We note that the government essentially
concedes that the prosecutor’s references
to Harris’ off-stand demeanor were
improper by arguing only that the
remarks, even if improper, were harmless
error. Thus because of this concession
(step one of the inquiry) we will analyze
the second prong of the test to determine
whether this or any other alleged error
was harmless. Even were we to assume that
all of the prosecutor’s challenged
comments were improper, we would still
remain convinced that any error was harm
less and that Harris received a fair
trial based on the overwhelming evidence
of guilt and the proper jury
instructions.
We first note that the dissent has
undertaken an analysis of the
prosecutor’s comments on certain
"uncontested evidence" and stated that
they were improper because the statements
would necessarily have been interpreted
as a comment on the defendant’s decision
not to testify. We disagree. The law is
most clear that any indirect commentary
on the defendant’s failure to testify,
including references to "uncontradicted"
or "uncontested" testimony, in order to
be improper, must (1) consist of language
and words that are "manifestly intended"
to be a comment on the defendant’s
decision not to take the stand, when
analyzed in the context in which they are
used, or (2) be of such a character that
the jury would "naturally and necessarily
take it to be a comment on the
defendant’s silence." United States v.
Lyon, 397 F.2d 505, 509 (7th Cir. 1968)
(emphasis added), cert. denied, 393 U.S.
846; United States v. Flannigan, 884 F.2d
945, 954 (7th Cir. 1989); Ashford, 924
F.2d at 1425. The dissent concludes that
the jury in this case would naturally and
necessarily have interpreted the
prosecutor’s statement that Young’s
testimony concerning "Sam’s" alleged
presence at the convenience store was
"unrebutted" to be a comment on Harris’
decision not to testify, but we disagree.
After considering the record in its
entirety as we must, we are convinced
that the prosecutor’s reference to this
evidence being "uncontested" does not
"necessarily" convey the implied meaning
the dissent assigns to it. The
prosecutor’s comment was made in the
context of an assessment of
Young’sexplanation of the tape recorded
conversation. In the interest of
presenting the complete picture, the
prosecution introduced both the tapes and
Young’s testimonial explanation as to
what was being discussed, and the
accuracy of Young’s explanations was
subsequently tested on cross-examination.
The contested portion of the prosecutor’s
closing argument focused only on the
accuracy and reasonableness of Young’s
explanations. Viewed in this context, we
are convinced that the prosecutor’s
statements during argument would more
logically and naturally be interpreted as
mere commentary on the trustworthiness of
Young’s explanation of the taped
conversation, contrary to the dissent’s
view that the statement could only refer
to Harris’ decision not to testify. It
needs to be pointed out that the dissent,
sitting as a reviewing court, must not
"assume that a prosecutor intends an
ambiguous remark to have its most
damaging meaning or that a jury, sitting
through lengthy exhortation, will draw
that meaning from the plethora of less
damaging interpretations," for "the
government should not be restricted to a
sterile recitation of uncontroverted
facts," and counsel certainly can "make
arguments reasonably inferred from the
evidence presented." United States v.
Rose, 12 F.3d 1414, 1424 (7th Cir. 1994)
(emphasis added). Furthermore, we wish to
make clear that Harris was not the only
person who could have rebutted Young’s
explanation of the taped conversations
because had the defendant so desired, he
could have presented his own "expert" to
challenge Young’s testimony and to
possibly offer alternative explanations
for the code language and other
conversation used on the tapes, and for
reasons unexplained in this record he
chose not to call such an expert,
probably because he was convinced it
would be of no avail. Harris has failed
to demonstrate that permitting the jury
to hear the "uncontested evidence"
statements was plainly erroneous.
We also disagree with the dissent’s
conclusion that it was improper for the
prosecutor to refer to testimony
concerning the transfer of money from
Young to Harris as being "not contested."
The dissent reaches its view by making
the questionable assertion that Harris
was the only person who could have
rebutted the government’s theory. In
fact, the dissent seems to forget that
the money transfer ($1,800) from Young to
Harris was observed by a third-party-eye-
witness, namely Detective Graham, and the
fact that Graham’s testimony happened to
corroborate Young’s description of the
transfer does not alter the fact that he
could have rebutted Young’s testimony.
"We have never held that references to
uncontroverted evidence which could have
been controverted by someone other than
the defendant will constitute reversible
error." Kurina v. Thieret, 853 F.2d 1409,
1416 (7th Cir. 1988) (emphasis added).
Thus, where a witness other than the
defendant could have, but does not,
contradict the government’s proof,
references to "uncontested" evidence are
not improper. Id. This rule applies with
equal force to eye-witness testimony
provided by a law enforcement officer:
[T]his court has held that a reference to
unrebutted testimony is not improper
where police officers present at the
arrest could have contradicted the
government’s theory.
United States v. Mietus, 237 F.3d 866,
872 (7th Cir. 2001) (emphasis added). We
are convinced that the dissent is
mistaken in its application of the law
when stating that Harris was the only
person who could have contradicted the
government’s theory concerning the
transfer of money.
2. Application of the Harmless Error
Doctrine
Even if we were to assume, arguendo,
that the prosecutor’s challenged comments
were improper, Harris’ claims do not
satisfy the "impact" prong of the
Renteria/Cusimano test and any alleged
errors made by the prosecutor in this
record were clearly harmless. After
considering the prosecutor’s comments
taken in the context of the record as a
whole, we are convinced that the comments
did not have a "substantial and injurious
effect or influence on determining the
jury’s verdict," Brecht, 507 U.S. at 637,
and that the outcome of the trial would
have been the same regardless of the
prosecutor’s alleged misconduct. Badger,
983 F.2d at 1456.
When assessing the prejudicial effect of
improper remarks on the overall fairness
of a trial, we place considerable
emphasis on (1) the curative effect of
jury instructions, including those
instructions regarding the government’s
burden to establish each and every
element of the crime charged beyond a
reasonable doubt, as well as the trial
court’s direct admonition that the
arguments of the attorneys are not to be
considered evidence, and (2) the weight
of the evidence of guilt contained in the
entire record. United States v. Cornett,
232 F.3d 570, 575 (7th Cir. 2000).
With respect to the first factor (the
jury instructions), after reviewing the
jury instructions we are convinced that
they were proper. In particular, we note
that the trial court’s instructions on
the government’s burden of proof were
proper and furthermore the jury was
clearly informed that the arguments of
the attorneys are not evidence. "Absent
evidence to the contrary, we presume that
the jury understood and followed the
district court’s instructions." Cornett,
232 F.3d at 574. We have no reason to
believe, nor does the record reflect,
that the jury was left with a
misunderstanding of the law, nor how it
was to apply the law to the facts
presented. It is interesting also to note
that the jury had no questions before,
during, or after deliberations, and
defense counsel made no objection to the
jury instructions at trial, nor on appeal
does he allege any problem with the
jury’s ability to understand the
instructions.
As we have stated earlier, the weight of
the evidence is overwhelmingly in favor
of establishing Harris’ guilt beyond a
reasonable doubt, and the dissent’s
characterization of the evidence of his
guilt as being "skimpy" is less than
accurate. Levannon Berry Young, a
participant in the transaction, provided
first-hand testimony of the negotiations
between himself and Harris, the exchange
of money, and the eventual transfer of
cocaine. His testimony also detailed the
history of his drug dealings with Harris,
as well as Harris’ use of code language
during all drug transactions. It is well
known that drug dealers commonly use code
language out of fear that their
conversations will be intercepted:
Conversations regarding drug transactions
are rarely clear. A fact-finder must
always draw inferences from veiled
allusions and code words. In this case
the jury was confronted with
conversations which contained "code
words" that, when considered in
isolation, might seem unclear, veiled and
almost nonsensical, but when analyzed
properly, in the context of the totality
of the evidence, can clearly be seen to
be "code words" for drugs . . . . It is
true that, advisedly, no explicit mention
was ever made of cocaine or other drugs
in any of Vega’s conversations with the
Zambranas. However, a case was made,
which was more than strong enough to
convince the jury, that Vega used terms
like "chickens," "roosters" and "it" as
code words for drugs. Not only are code
words always used by drug conspirators
when they realize, as they do in today’s
drug culture, that their telephone
conversations are frequently intercepted,
such term were obviously used by the
conspirators in this case . . . . [W]e
have frequently upheld conspiracy
determinations made by judges and juries
which have relied upon inferences that
"code words" or obscure language were
meant to refer to drugs.
Vega, 860 F.2d at 795, 798 (citations and
internal quotation marks omitted).
Furthermore, Young’s testimony was
corroborated by the tape recorded
conversations between himself and Harris.
As an example, the words "drugs" or
"cocaine" are not contained in any of the
recorded conversations. Furthermore, one
listening to a tape of the recorded
conversations would necessarily come to
the conclusion that many of Harris’
comments make little or no sense unless
understood, as Young explained, as a code
lingo for drugs. Young’s testimony
included his explanation of the code
language on the tapes, how Harris’s
reference to "a deuce" was code for two
ounces of cocaine and that "You know the
story is for you to meet me on
Eighteenth?" was code for Harris’ refusal
to sell the two ounces for any amount
less than $1,800.
And let us once again make clear that it
is not the prerogative of a federal
appellate court to second-guess the
jury’s weighing of Young’s testimony--the
determination of his credibility is
exclusively for the jury. See United
States v. Muthana, 60 F.3d 1217, 1223
(7th Cir. 1995) ("Assessing a witness’
credibility is a matter inherently within
the province of the jury, and arguments
concerning credibility are wasted on an
appellate court.") (internal quotation
marks omitted); United States v. Ramirez,
796 F.2d 212, 214 (7th Cir. 1986) ("An
appellate court will not . . . assess the
credibility of the witnesses.")
In addition to the tape recordings and
Young’s testimony, the government
introduced further corroborative
testimony through Detective Graham.
According to the detective’s eye-witness
account, Young obtained $1,800 of police
bait money and turned it over to Harris,
who was observed receiving the money and
placing it in his pocket. Shortly after
returning from his final meeting with
Harris, Young turned over two ounces of
cocaine to the officers from the
Springfield Police Department.
Another important piece of evidence
against Harris was the fact that Young’s
testimony under oath detailing the actual
transfer of cocaine was corroborated in
the tape recorded conversation of the
crucial meeting. The recording containing
Harris’ instructions to "look in the
glove box," followed by Young’s comment,
"you spooked, man," and Harris’ direction
to "peep it," is particularly probative
evidence of guilt when viewed through the
lens of Young’s testimony describing the
transfer of cocaine. If, as the dissent
suggests, "Harris could have told Young
to look in the glove box for any number
of reasons," why did the two men
deliberately fail to discuss the content
of the glove box in any manner other than
in code language referring directly to
the drug transaction: "peep it" (examine
it) "it’s on the knob" (the quantity is
exactly two ounces)? The recorded
conversation is obviously evidence that
Young received the cocaine from Harris in
the manner Young described, and we fail
to understand and must disagree with the
dissent’s statement that the jury "could
have determined that the conversation
[regarding the glove box] was innocuous."
In light of Young’s explanation of the
code language, we are convinced that the
dissent’s view is nothing but mere
speculation unsupported in the record. We
are a loss to understand the dissent’s
claim that Harris’ direction to Young to
"look in the glove box" was in any way
ambiguous, for the dissent has failed to
offer any explanation or reasoning in
support of an alternative interpretation
of those five words. The law is clear
that the prosecution’s case need not
answer all questions and remove all
doubts "because that would be impossible;
the proof need only satisfy reasonable
doubt." Vega, 860 F.2d at 794. The
government’s proof "need not exclude
every reasonable hypothesis of innocence
so long as the total evidence permits a
conclusion of guilt beyond a reasonable
doubt. The trier of fact is free to
choose among various reasonable
constructions of the evidence." Id.(emphasis added). Further, "the existence
of an innocent explanation does not
foreclose a jury from finding guilt
beyond a reasonable doubt. The jury [is]
entitled to draw reasonable inferences
from the conversations." Vega, 860 F.2d
at 796. This rule of law applies with
equal force to the dissent’s speculation
that Young could have obtained the
cocaine from a source other than Harris,
which we find to be unsupported in the
record. In order for Young to have
obtained the cocaine from some other
phantom source, he would have had to
obtain the drugs in an almost
instantaneous time frame, in a secretive
transaction. Moreover, the officers did a
thorough search of Young for money and
drugs very shortly before his receipt of
the cocaine and none was found, making it
highly unlikely that he purchased the co
caine from anyone other than Harris.
The recorded conversation regarding
Harris’ instructions to look in the glove
box, when combined with (1) Young’s
first-hand testimony of the events
leading up to and including the transfer
of the drugs, (2) the transfer of cash to
Harris witnessed by Detective Graham, (3)
the fact that Young turned over almost
exactly two ounces of cocaine shortly
after the crucial meeting, corroborating
his testimony that the men had made a
deal for two ounces, or a "deuce," of
cocaine, (4) Young’s explanation of the
sound recorded when the cocaine bags hit
the recorder in his pocket, and (5) the
readily understandable "coded"
conversations discussing the sale of the
cocaine, amount to very powerful evidence
of Harris guilt.
We are aware that the trial was not
perfect, as is the case in most trials.
But let us point out that the United
States Constitution does not guarantee a
perfect trial, only a fair trial.
Michigan v. Tucker, 417 U.S. 433 (1974).
Based on our review, we are convinced
that Harris received a fair trial in
light of the overwhelming weight of
evidence of guilt combined with the
court’s clear and unambiguous
instructions to the jury. The
prosecutor’s comments, if erroneous they
were, constituted harmless error, and
fell short of having a prejudicial effect
on the jury.
B. Admission of Uncharged Drug
Transactions
Harris also claims that the trial judge
improperly permitted the prosecution to
introduce evidence of prior, uncharged
drug transactions between himself and
Young. We review a district court’s
evidentiary rulings for abuse of
discretion./6 United States v. Menzer,
29 F.3d 1223, 1234 (7th Cir. 1994). A
determination made regarding the
admissibility of evidence by the trial
judge "is treated with great deference
because of the trial judge’s first-hand
exposure to the witnesses and the
evidence as a whole, and because of his
familiarity with the case and ability to
gauge the likely impact of the evidence
in the context of the entire proceeding."
United States v. Wash, 231 F.3d 366, 371
(7th Cir. 2000).
The judge permitted Young to testify
that in the five year period preceding
trial, Harris sold Young three to four
ounces of cocaine on eight or nine
different occasions. Young’s testimony
regarding these uncharged drug sales
included a description of Harris’
procedures for communication, the
exchange of money, and the delivery of
the drugs. According to the trial judge:
In the instant case, the Government has
indicated that it will seek to admit
audio tapes of conversations between
Defendant and Young. In these
conversations, Defendant allegedly uses
highly veiled language to refer to the
prices which he charges for two ounces of
cocaine. As the Government notes, the
only way for the Government to explain to
the jury the significance of this
language is to allow Young to testify
that he understood this veiled language
to refer to drug transactions because he
has been involved in drug transactions
with Defendant in the past. As such, the
evidence of Defendant’s prior drug
transactions with Young completes the
story of the crime with which Defendant
has been charged and is so connected that
it explains the circumstances surrounding
the charged crime. (emphasis added).
We agree with the trial judge’s ruling
that the evidence was admissible under
the "intricately related" doctrine. "This
Circuit has a well-established line of
precedent which allows evidence of
uncharged acts to be introduced if the
evidence is ’intricately related’ to the
acts charged in the indictment." United
States v. Ryan, 213 F.3d 347, 350 (7th
Cir. 2000), quoting United States v.
Gibson, 170 F.3d 673, 690 (7th Cir.
1999). Under the "intricately related"
doctrine, the admissibility of Harris’
uncharged criminal activity turns on:
whether the evidence is properly admitted
to provide the jury with a complete story
of the crime [on] trial, . . . whether
its absence would create a chronological
or conceptual void in the story of the
crime, . . . or whether it is so blended
or connected that it incidentally
involves, explains the circumstances
surrounding, or tends to prove any
element of, the charged crime.
Ryan, 213 F.3d at 350, quoting United
States v. Ramirez, 45 F.3d 1096, 1102
(7th Cir. 1995) (citations omitted).
We are of the opinion that Young’s
testimony concerning the defendant
Harris’ usual modus operandi for the sale
of drugs was properly admitted in
evidence. If the court had declined to
allow the receipt of this detailed
explanation of Harris’ drug transactions,
including the negotiations, the purchase,
the transfer of the cocaine, and the use
of code language, the jury would have
been left with a somewhat confusing and
incomplete picture.
Young’s testimony regarding prior
uncharged criminal drug activity
qualified for admission under the three
Ramirez scenarios. The evidence
"completes the story of the crime," its
absence would create a "conceptual void,"
and the evidence is "so blended" with the
charged offense that it explains the
surrounding circumstances. Evidence need
only satisfy one prong under Ramirez in
order to be admissible, and the contested
evidence in this case satisfies all three
prongs. We are convinced that the
evidence was admissible under the
intricately related doctrine.
Harris’s conviction and sentence are
AFFIRMED.
FOOTNOTES
/1 Young was on parole for prior drug violations at
the time of the raid and one of the stipulations
in his parole agreement provided that he was not
to associate with any known criminal (i.e. Jill
Nelson or Marcus Harris). Young’s agreement to
cooperate could have been motivated by his desire
to avoid a return to the confines of a prison
surrounding.
/2 Young explained that Harris thought he had seen
the car of a store employee named "Sam" who had
recently been charged in a federal drug case.
/3 We have previously held that "matters of public
record such as . . . city ordinances . . . are
proper subjects for judicial notice." Newcomb v.
Brennan, 558 F.2d 825, 829 (7th Cir. 1977); see
also Matter of Waller Creek, Ltd., 867 F.2d 228,
238 n.14 (5th Cir. 1989) (taking judicial notice
of ordinances not considered by district court);
Allred v. Svarczkopf, 573 F.2d 1146, 1151 (10th
Cir. 1978) (same); Bryant v. Liberty Mut. Ins.
Co., 407 F.2d 576, 579-80 (4th Cir. 1969) (same).
The name change mandated in the Springfield
ordinance, reproduced in the body of this opin-
ion, occurred over 14 years prior to the date of
the drug transaction involved in this case, and
over 16 years prior to the negligent, offhand
remarks made in United States v. McClain, No. 01-
1740, on which the dissent relies for its assault
on the evidence. The dissent is thus incorrect in
stating that the two witnesses testifying in this
case about the designated location at Harris’
trial gave "inaccurate" testimony when stating
that there is no street designated "Eighteenth
Street" in Springfield, Ill.
/4 "The reason we require a determination on the
record is that we think fair procedure in resolv-
ing disputes of adjudicative facts calls for
giving each party a chance to meet in the appro-
priate fashion the facts that come to the tri-
bunal’s attention . . . [through] rebuttal evi-
dence, cross-examination, usually confrontation,
and argument (either written or oral or both)."
Fed. R. Evid. 201(b) advisory committee notes
(1972). It is eminently clear that the record in
this case is barren of any information from which
the jury could have inferred that a reference to
"Eighteenth Street" was part of the "common
parlance" of law-abiding Springfieldresidents in
November 1998.
/5 We believe that the dissent’s unsupported
argument is less than helpful to the enrichment
of the law, and nothing in this opinion should
encourage future litigants to base their appel-
late argument on materials outside the record and
not presented to the district court. See Zell,
542 F.2d at 38 (citing Paridy v. Caterpillar
Tractor Co., 48 F.2d 166, 168 (7th Cir. 1931)).
/6 Given the judge’s definitive ruling on Harris’
motion in limine concerning this issue, there was
no need for the defendant to renew his objection
at trial in order to preserve the issue for
appellate review. Wilson v. Williams, 182 F.3d
562, 564 (7th Cir. 1999) (en banc) ("a definitive
ruling in limine preserves an issue for appellate
review--without the need for later objection.").
DIANE P. WOOD, Circuit Judge, dissenting. Marcus
Harris stood trial on a single charge of unlaw-
fully distributing cocaine--not conspiring to
distribute cocaine, not possessi bng a controlled
substance with intent to distribute it. This
means that the government was obliged to prove,
beyond a reasonable doubt, that he committed this
particular crime. The majority spends a great
deal of time and energy arguing forcefully that
the evidence before the jury wassufficient to
support a conviction on the distribution charge.
If that was what this appeal was about, I would
agree that the evidence taken in the light most
favorable to the jury’s verdict would easily
support an affirmance. But that is not Harris’s
argument on appeal. Instead, his principal point
is that the prosecutor made comments that violat-
ed his right to a fair trial, and these errors
were so serious that he is entitled to a new
trial. Even taking into consideration the demand-
ing plain error standard of review Harris faces,
I am persuaded that he is right. I would reverse
Harris’s conviction and remand for a new trial,
and I therefore respectfully dissent.
The statements Harris challenges are set out in
the majority opinion. As my colleagues essential-
ly acknowledge, the government has conceded that
at least some of them were improper. Ante at 14.
Nevertheless, both because this court has an
independent obligation to assess the propriety of
any such confession of error, and because affir-
mance would be required if the statements were
not improper, I consider the propriety question
first, and then the question of the impact of any
improprieties on the trial as a whole. This is in
keeping with the usual test that is applied to
plain error review of prosecutorial misconduct
under cases like United States v. Renteria, 106
F.3d 765 (7th Cir. 1997), to which the majority
refers ante at 12: first we consider whether the
challenged remarks were improper; if they were,
we then consider them in context and ask whether
they denied the defendant a fair trial. Renter-
ia,106 F.3d at 766.
First is the prosecutor’s reference--two times--
to portions of the government’s evidence as
"unrebutted" or "not contested." The Fifth Amend-
ment forbids prosecutors from inviting the jury
to draw an adverse inference from a defendant’s
decision not to testify. Griffin v. California,
380 U.S. 609 (1965). This rule prohibits indirect
as well as direct comments to this effect. United
States v. Aldaco, 201 F.3d 979, 987 (7th Cir.
2000). As the majority points out, indirect
requests to draw adverse inferences from the
defendant’s silence violate the Fifth Amendment
only if (1) the prosecutor manifestly intended to
refer to the defendant’s silence or (2) a jury
would naturally and necessarily take the remark
for a comment on the defendant’s silence. United
States v. Mietus, 237 F.3d 866, 871 (7th Cir.
2001). However, this court has repeatedly held
that, if a prosecutor points out that certain
evidence is "unrebutted" or "uncontested," and if
the only person who could reasonably be expected
to rebut the evidence is the defendant himself,
then such comments naturally and necessarily call
the jury’s attention to the defendant’s failure
to testify. See, e.g., Mietus, 237 F.3d at 871;
Aldaco, 201 F.3d at 987; United States v. Cotnam,
88 F.3d 487, 497 (7th Cir. 1996) (collecting
cases). Essentially, these cases carve out a
narrow class of comments that refer indirectly to
the defendant’s failure to testify--remarks that
testimony is unrebutted when only the defendant
could have supplied a rebuttal--and hold that
this type of comment always naturally and neces-
sarily involves a comment on the defendant’s
silence.
Both of the statements Harris challenges ran
afoul of this rule. The first statement referred
back to Berry Young’s testimony that Harris
backed out of the drug deal at the Citgo because
Harris was concerned that "Sam," a man who had
recently been arrested for selling drugs and who
might be cooperating with the police, was there.
In his closing, the prosecutor argued that "[t]he
explanation given by Berry Young [for why Harris
backed out of the deal] is absolutely unrebutted
in this case." But here the prosecutor could only
have been talking about Harris’s thoughts or
frame of mind, because the question was why
Harris decided not to go ahead with the deal. No
matter how reasonable Young’s guess may have been
about Harris’s mental processes, the fact remains
that no third party, including an expert in drug
lingo, reasonably could have rebutted Young’s
testimony except for Harris himself.
Second, the prosecutor described the incident in
which a government agent watched Young give
Harris $1800 and concluded that this testimony
was "not contested." But according to the govern-
ment’s own witnesses, only three people witnessed
the alleged exchange of money--Young, Harris, and
Agent Graham. Young and Agent Graham both testi-
fied that Young gave Harris the money. The only
conceivable person who could have supplied the
"contest" the prosecutor claimed was missing was
again Harris himself. The majority’s reliance on
Kurina v. Thieret, 853 F.2d 1409 (7th Cir. 1988)
is misplaced, since in that case other witnesses,
not called by either party, could have countered
the testimony of prosecution witnesses. Id. at
1416. It makes no difference whether there were
three witnesses to the drug transaction or thir-
ty; if all but the defendant testify for the
prosecution, then the only person who can credi-
bly testify in rebuttal is the defendant. Because
Harris was the only person who could have rebut-
ted both the "Sam" evidence and the fund transfer
evidence, the prosecutor’s statements that the
evidence on these points was "unrebutted" or "not
contested" were improper.
Next, Harris challenges the prosecutor’s refer-
ences to his courtroom demeanor. At the end of
his initial closing argument, the prosecutor
asked the jury: "What’s been the defendant’s
manner during this trial? Cocky, like it’s a
joke. You’ll never catch me. I’m too careful. But
not careful enough." The majority does not dis-
cuss the propriety of these statements, but the
government has conceded that they were error. A
review of the caselaw in this area amply demon-
strates the correctness and wisdom of that con-
cession. The Supreme Court has held that "one
accused of a crime is entitled to have his guilt
or innocence determined solely on the basis of
the evidence introduced at trial, and not on [the
basis of] . . . circumstances not adduced as
proof at trial." Taylor v. Kentucky, 436 U.S.
478, 485 (1978). Several circuits have applied
this rule to hold that prosecutorial comments on
the defendant’s courtroom demeanor are improper.
See, e.g., United States v. Gatto, 995 F.2d 449,
455 (3d Cir. 1993); United States v. Schuler, 813
F.2d 978, 979 (9th Cir. 1987); United States v.
Pearson, 746 F.2d 787, 796 (11th Cir. 1984). I am
convinced that this outcome is correct and would
join our sister circuits in this holding. See
also Gomez v. Ahitow, 29 F.3d 1128, 1136 (7th
Cir. 1994) (citing this reasoning with approval,
although deciding case on other grounds).
Finally, and most seriously, the prosecutor made
a statement during his rebuttal argument that
improperly distorted the burden of proof in this
case. In the passage to which Harris objects, the
prosecutor stated:
Absent any reasonable alternative explanation
for the defendant’s comments to Berry Young that
the government says related to drugs, if that is
the only reasonable explanation was that Berry
Young asked--the defendant said he had a deuce,
two, and Berry Young says will you sell it to me
for 18, 1800, Eighteenth Street, and the defen-
dant says, "I’ll do that for you, I’ll do that
for you," and in fact Berry Young is seen by
Detective Graham giving $1800 to the defendant,
and then the defendant--and then after meeting
with the defendant the next time after that Berry
Young comes back with two ounces, if there is no
other reasonable explanation for those statements
than that given by Berry Young, there is no
reasonable doubt about where Berry Young got
those two ounces.
Statements that suggest incorrectly what the
jury must find in order to reach a certain
verdict distort the burden of proof and are
therefore improper. See United States v. Cornett,
232 F.3d 570, 574 (7th Cir. 2000); United States
v.Vargas, 583 F.2d 380, 386 (7th Cir. 1978). The
statement quoted above created just such a dis-
tortion. According to it, unless there was a
reasonable alternative explanation of the meaning
of the recorded conversations, there could be no
reasonable doubt as to whether Harris distributed
the drugs. But this is plainly not true; it
assumes that evidence of negotiations and evi-
dence of final delivery are one and the same
thing, and they are not. Harris’s strongest
argument was that, even if the tapes showed that
he and Young were negotiating a drug deal, there
was no proof that Harris actually delivered the
drugs rather than backing out at the last minute.
Furthermore, as I explain below in more detail,
the government had no way of showing for certain
that Harris was the source of whatever drugs
Young got. For the government to tell the jury
that it had to convict unless it could find an
innocent explanation for the negotiating conver-
sations was a misstatement of the government’s
burden of proof./1
The prosecutor, in short, made not one but
several seriously improper remarks in his closing
argument. This makes it necessary for me to
consider the question whether these remarks,
viewed in the light of the record as a whole,
deprived Harris of a fair trial. As the majority
correctly notes, the focus of this inquiry is
whether the evidence against the defendant was so
overwhelming that it is clear that he would have
been convicted even absent the improper remarks.
See United States v. Hasting, 461 U.S. 499,
510-11 (1983). The answer, I believe, is no:
while the government certainly had enough evi-
dence against Harris to sustain a conviction,
once again that is not the issue. We must consid-
er instead whether no other conclusion was possi-
ble for this jury. On that point, a close look at
the evidence of actual delivery of the drugs
reveals that the government’s case was not nearly
as airtight as the majority claims it is. To the
contrary, as I indicate below, there were signif-
icant gaps, and a reasonable jury viewing the
case without the distortions introduced by these
errors could also have concluded that the govern-
ment failed to prove that Harris transferred the
drugs to Young.
We all agree that the government presented
overwhelming evidence that Harris negotiated with
Young to sell Young several ounces of cocaine.
Although both parties have made much of the
"veiled" language Harris and Young used to con-
duct their negotiations, I find the coded lan-
guage on the tapes rather transparent, and I have
no trouble believing that any rational jury,
hearing those tapes, would have concluded that
the two were indeed negotiating for the sale of
drugs. If the government had only to prove that
Harris negotiated to sell drugs, once again
affirmance would be in order.
Where, however, is the evidence that Harris
actually delivered the two ounces of cocaine to
Young? On this critical point, the government’s
evidence was scant. We know from Young’s own
testimony that Harris was skittish about selling
drugs and that he typically abandoned a deal if
he sensed anything was amiss. We also know, again
from Young’s own interpretation of the taped
conversations, that Harris had already pulled out
of a deal with him earlier in the day. Against
that background, we know that Young went to a
barber shop to meet Harris, at Harris’s request.
Government agents accompanied Young to the barber
shop, but they parted ways before they got there
and left him entirely unattended. (They explained
that it was too dangerous to maintain visual
surveillance of Young during the key moments when
Harris allegedly provided the drugs to him.) As
Young told the story, he and Harris walked to the
parking lot to look at Harris’s new truck. After
discussing the truck for a few minutes, Harris
instructed Young to "look in the glove compart-
ment." The two talked for a little while longer
about the truck’s paint job, and Harris then
said, "Peep it man. It’s tight, it’s on the knob.
I’m thinkin’ about sellin’ it." Young later
returned to the agents with two ounces of co-
caine, testifying at trial that he found the
drugs in the glove compartment, and that the
references to something being "tight" and "on the
knob" meant that the cocaine weighed two ounces
exactly. Although this testimony, if believed,
was certainly sufficient to convict Harris, this
portion of the case ultimately rests entirely on
Young’s word. The references to something being
"tight" and "on the knob" could easily have
referred to drugs, as Young said they did, but
they were ambiguous enough that they could also
have described something else. Similarly, Harris
could have told Young to look in the glove
compartment to retrieve any number of legal items
that people commonly store there, such as the
car’s title and registration. In short, although
the recorded conversation easily could be inter-
preted as Young suggested, the jury also reason-
ably could have determined that the conversation
was innocuous.
The majority’s suggestion that it is quite
unlikely that Young could have acquired the drugs
in any other way--as the opinion puts it, "from
some other phantom source . . . in an almost
instantaneous time frame, in a secretive transac-
tion" ante at 21, overlooks important parts of
the record. The trial testimony makes it apparent
that Young had ample opportunity and time to
obtain the two ounces of cocaine from someone
other than Harris. When the officers and Young
began this operation on the morning of November
11, the officers searched Young and his car and
found no money or drugs. After that, however (and
assuming that this search accurately revealed
that Young had no money or drugs at that time),
several hours elapsed before Young finally re-
turned to the officers with the drugs that after-
noon. During that time, Young was frequently out
of the officers’ visual surveillance. Although
the officers searched Young’s person again, they
never again searched his car. Young had recording
devices with him for much of that time, but not
all of it. At least once, Young left the record-
ing device in the car, when he left it to go into
the Citgo station where he was to meet Harris.
Furthermore, despite the officers’ testimony that
Young had neither drugs nor money at the time of
their search of him, Young testified that later
in the day he bought spicy chicken wings at the
Citgo. This testimony suggests that the officers
either missed some money Young had, or he managed
to acquire money after their inspection. Either
way, if he could have acquired money (in a
"secretive" transaction not recorded on the
tapes), then he could also have acquired drugs.
None of this is to say that Young necessarily
acquired the drugs he provided to the agents
anywhere other than from Harris, as he said he
did. It only illustrates that Young had ample
opportunity to acquire the drugs elsewhere if he
had wanted to set Harris up. Young also had ample
motive to do so, as he had agreed to cooperate
with the government in its investigation of
Harris after the government caught Young himself
with drugs. Young was under some pressure, be-
cause he had been unsuccessful in purchasing
drugs from Harris in any of their first few
meetings. Harris’s counsel argued at trial that,
although Harris may have negotiated to sell drugs
to Young, he ultimately did not do so. Although
the jury obviously was not bound to accept this
story, the evidence in the record could have
supported it.
Against this backdrop, the government’s improper
closing argument may well have prejudiced Harris.
First, the prosecutor’s statement that "if there
is no other reasonable explanation for [the
recorded conversations] other than that given by
Berry Young, there is no reasonable doubt about
where Berry Young got those two ounces," directly
addressed the central weakness in the govern-
ment’s case and instructed the jury to ignore
that weakness. That error alone might be enough
to warrant reversal. But there is much more. The
prosecutor’s statements that the defendant’s
demeanor during the trial was "cocky, like it’s
a joke" and that the defendant thought the gov-
ernment would never catch him because he was "too
careful" are also very troubling, especially
given that Young testified in detail as to his
history of drug deals with Harris. The prosecu-
tor’s reference to Harris’s demeanor invited the
jury to convict Harris based on the fact that he
is a cocky, sneaky drug dealer, rather than
focusing on whether the government had suffi-
ciently proved that Harris actually distributed
drugs in this case. When these errors, along with
the prosecutor’s repeated improper references to
Young’s "unrebutted" interpretation of the taped
conversations, are viewed together, I cannot say
that the combined weight of the errors did not
improperly influence the jury’s decision to
convict Harris, despite the court’s generic
instructions on burden of proof. I would reverse
and remand for a new trial, and I therefore
respectfully dissent.
FOOTNOTE
/1 The majority comments that the reference to 18th
Street in Springfield must have been code for a
drug transaction, because, it says, "[t]estimony
at trial from Young and an FBI Agent established
that there [is] no street designated as ’Eigh-
teenth Street’ in Springfield, Illinois." Ante at
4, n.3. In fact, the situation is not so simple.
As the ordinance the majority supplies makes
clear, there is no longer a street in Springfield
that bears the formal name "Eighteenth Street."
But, as is often the case with street re-namings,
it turns out that in common parlance the old name
has not died away. It is striking that in another
appeal filed in this court, United States v.
McClain, No. 01-1740, the brief for the United
States contains the following assertion with
respect to streets in Springfield, Illinois:
"Eric Jackson stopped at a stop sign at the
corner of Eighteenth and Edwards Street." Brief
of Plaintiff-Appellee at 3. The brief for the
defendant-appellant in that case twice refers to
an Eighteenth Street in Springfield. First, it
reports that "Officer Anderson, while on routine
patrol on April 23, 2000 near the intersection of
18th Street and Cook Street in Springfield,
Illinois, observed two men fighting on the side
of the road." Brief and Argument of Defendant-
Appellant at 6. Later, it says "[a]s Jackson
approached the stop sign at 18th and Edwards, he
saw Defendant-Appellant." Id. at 8. While someone
consulting the Internet map source MapQuest
(http://www.mapquest.com) would find only South
Martin Luther King, Jr. Drive between South 17th
Street and South 19th Street, the alternative map
source MapBlast! (http://www.mapblast.com) shows
the exact same street as 18th Street. Local
newspapers also appear to refer to the street as
18th Street at times. See, e.g., Police Beat,
State Journal-Register (Springfield), July 9,
2001, at 16, available at 2001 WL 23495817 (re-
porting that a Springfield resident "told police
Saturday night that a 27-year-old man, whose name
he didn’t know, crawled onto the front porch of
his home in the 1000 block of South 18th Street
after the 27-year-old had been beaten"); UIS
Weekly, January 8, 2001, at 1, available at
http://www.uis.edu/weekly/jan08.pdf (reporting on
Annual Unity Day and directing marchers to go to
a particular staging area and "then proceed west
to Pilgrim Rest Missionary Baptist Church, 1800
South 18th Street, Springfield"). Naturally, if
Harris did not take issue with the plainly inac-
curate statement about 18th Street at trial,
there is little that we as an appellate court
could or should do here. But it further suggests
that the evidence was not so overwhelming as the
majority paints it to be.