United States v. Love, Willie ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3834
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE LOVE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-CR-28—Joan B. Gottschall, Judge.
____________
ARGUED MAY 27, 2003—DECIDED JULY 18, 2003
____________
Before BAUER, POSNER, and COFFEY, Circuit Judges.
BAUER, Circuit Judge. A jury found Willie Love guilty
of conspiracy to possess cocaine base and of three charges
related to his possession of a firearm. The court sen-
tenced Love to a total of 295 months’ imprisonment. Love
appeals, arguing the government’s expert testimony ex-
ceeded the scope of the pre-trial notice and violated Fed-
eral Rule of Evidence 704(b), and that the prosecutor
made an improper comment during closing arguments. For
the reasons stated herein, we affirm.
BACKGROUND
On January 7, 2000, David Johnson met an individual
named Pablo to discuss a possible drug transaction. Pablo
2 No. 02-3834
was actually an undercover FBI agent whose real name
was Paul Vina. Johnson agreed to sell one-half kilogram
of cocaine base for $11,000. After the deal was made,
Johnson began searching for a supplier. Johnson contacted
appellant Willie Love and Love agreed to supply one-half
kilogram of cocaine base for $10,500. After Love procured
the drugs, he met Johnson to give him four 125-gram
quantities of crack cocaine. Because Love had not yet
received any compensation for the drugs, he accompanied
Johnson to the deal.
Johnson and Agent Vina had agreed to meet at a Mc-
Donald’s restaurant in Berwyn, Illinois. Johnson arrived
at the restaurant with Love following close behind. John-
son got into the passenger seat of Agent Vina’s car and
showed Vina the cocaine. The two men left the car to
retrieve the money located in the trunk. At that moment,
FBI agents converged on Johnson and placed him under
arrest.
Meanwhile, Agent Mark Horton approached Love’s car,
identified his office, and told Love that he was under ar-
rest and to turn his car off. Love attempted to escape
and collided with an FBI agent’s car. Undaunted, he
continued to drive toward the exit of the parking lot. As
FBI agents scrambled to cut off his means of escape, Love
tossed a loaded 9mm Lugar pistol with an obliterated
serial number out of his vehicle. Love was finally appre-
hended after he smashed into another agent’s car. The
agents searched Love’s vehicle and found three cellular
phones (one which was registered to another individual)
and a pager.
Prior to trial, the government notified Love that it
would call a drug trafficking expert. The government
tendered Agent Wayne Hunter, an investigator with the
Drug Enforcement Administration, as an expert under
Federal Rule of Evidence 702. The government said that
No. 02-3834 3
Hunter would testify, inter alia, about “the use of third
parties for security and concealment purposes” in drug
transactions. The district court accepted Hunter as an
expert under FRE 702. At trial, Hunter testified that
the amount of base cocaine seized from Johnson was
consistent with distribution quantities. He further noted
that weapons are common at drug deals and drug dealers
often conceal the ownership of their cell phones. Finally,
Hunter testified about the presence of third parties at
drug sales:
AUSA: Now, based on your training and experience,
is it common for persons involved in a drug
conspiracy to bring people to a drug deal
who do not know what is going on?
Hunter: No, ma’am. The only time that I’ve seen in
sixteen years an individual bring some-
one else to a drug deal is to fulfill a very
specific role, a role similar to what I’ve de-
scribed earlier, protection, counter-surveil-
lance, a ruse family. That type of thing.
Love also asserts that the prosecutor made an improp-
er comment during closing arguments when he made
reference to “a lawyer’s trick.” During the cross-examina-
tion of co-defendant, David Johnson, Love’s counsel at-
tempted to place Johnson’s veracity in doubt by question-
ing Johnson about testimony his girlfriend had given at
his bond hearing. Johnson experienced difficulties recall-
ing the details of this subject matter. During closing
argument, defense counsel seized upon this line of ques-
tioning:
And he lied before your very eyes when he testified. He
was on the stand, I think it was Tuesday, I said you
remember when the mother of your children got on
the witness stand . . . and said you worked at this
4 No. 02-3834
body shop? Do you remember that? No, I have no rec-
ollection. It didn’t happen.
Here is the mother of your children . . . polluting
the courtroom with perjury, and you don’t remember
it. Can you believe that? Can you believe that for one
second that you would allow someone close to you to
do that and you don’t remember it?
And then what I had to do was come back the next
day with the transcript. And I show it to him. I said is
this the transcript? Is this Ms. Moore’s testimony? He
says yes it is. Now all the sudden he remembers. He
changed his testimony right before your eyes.
In rebuttal, the government pointed out that Johnson’s
credibility was not damaged because defense counsel asked
about specific questions, which Johnson could not pos-
sibly remember verbatim:
AUSA: Now, [defense counsel], who is a very
skilled questioner, talked to you a mo-
ment about his common-law wife’s testi-
mony that he asked David Johnson
about. And I want to point out a lawyer’s
trick that you saw.
DEFENSE: Objection to lawyer’s tricks, Judge. That’s
improper.
COURT: Sustained.
AUSA: I will withdraw my comment, your Honor.
The jury found Love guilty of conspiracy to possess 476
grams of cocaine base with the intent to distribute, in
violation of 21 U.S.C. § 846; carrying a firearm in fur-
therance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c); possessing a firearm after previously
being convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1); and possessing a firearm with an obliterated
No. 02-3834 5
serial number, in violation of 18 U.S.C. § 922(k). The court
denied Love’s motion for a new trial and sentenced him
to 295 months’ imprisonment.
ANALYSIS
A. Expert Testimony
Love argues that Agent Wayne Hunter’s testimony
exceeded the scope of the pre-trial notice and also vio-
lated Federal Rule of Evidence 704(b) because he testified
as to Love’s state of mind. The government asserts review
is for plain error because Love failed to object to the expert’s
testimony. We agree. The transcript reveals an absence
of any objection from Love when the testimony at issue
was elicited, thus, we review the decision to admit such
testimony for plain error. United States v. Curtis, 280 F.3d
798, 801 (7th Cir. 2002).
Love’s first argument centers on a single, specific com-
ment from Hunter, which was elicited in the following
colloquy:
AUSA: Now, based on your training and expe-
rience, is it common for persons in-
volved in a drug conspiracy to bring
people to a drug deal who do not know
what is going on?
Agent Hunter: No, ma’am. The only time that I’ve
seen in sixteen years an individual
bring someone else to a drug deal is
to fulfill a very specific role, a role sim-
ilar to what I’ve described earlier, pro-
tection, counter-surveillance, a ruse
family. That type of thing.
Love argues that this statement exceeded the scope of the
government’s proffer. His contention is without merit.
6 No. 02-3834
In the government’s final proffer, it notified Love that
Hunter would explain “the security measures that are
common in transactions including street-level distribution
of crack . . . [and] the use of third parties for security
and concealment purposes (for example, to conduct coun-
tersurveillance, hold weapons, drugs, or money, or to
make the deal appear innocent).” That is precisely what
Hunter did at trial. Hunter’s testimony is a replica of
the government’s pre-trial notice.
Love next contends that Hunter’s testimony violated
Federal Rule of Evidence 704(b) because he expressed an
opinion as to Love’s mental state. Federal Rule of Evi-
dence 704(b) provides:
No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case
may state an opinion or inference as to whether the
defendant did or did not have the mental state or
condition constituting an element of the crime charged
or of a defense thereto. Such ultimate issues are mat-
ters for the trier of fact alone.
The critical question is whether the expert referred to
the intent of the defendant. United States v. Lipscomb, 14
F.3d 1236, 1239 (7th Cir. 1994). Agent Hunter clearly did
not. Love fails to show a single instance where Hunter
spoke about Love’s mental state. Hunter spoke about
the common practices of drug dealers and how typical
drug sales occur. We have long held that such testimony
is permissible. See, e.g., United States v. Cruz-Velasco,
224 F.3d 654, 660 (7th Cir. 2000); United States v. Brown,
7 F.3d 648, 652 (7th Cir. 1993); United States v. Foster, 939
F.2d 445, 451 (7th Cir. 1991). Hunter spoke in general
terms, not specifically about Love. Moreover, at trial, the
government emphasized that Hunter’s opinion was based
on his knowledge of common criminal practices and not
on some special knowledge of or assumption about Love’s
No. 02-3834 7
mental processes. The generalized nature of Hunter’s
testimony and his lack of involvement with Love’s case
were readily apparent throughout the direct and cross
examinations of Hunter, and thus, FRE 704(b) was not
violated.
B. Prosecutorial Misconduct
We review the denial of a motion for a new trial for an
abuse of discretion. Whiting v. Westray, 294 F.3d 943, 944
(7th Cir. 2002). Under the abuse of discretion standard, we
reverse only if we have a strong conviction of error. United
States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001).
We are asked to decide whether the prosecution’s re-
mark about a “lawyer’s trick” was improper. If it is not,
our analysis ends and the defendant’s claim fails. United
States v. Whitaker, 127 F.3d 595, 606 (7th Cir. 1997). The
propriety of the comment is a difficult question. But even
if a prosecutor’s comment was improper, the question re-
mains as to whether the remark “so infected the trial
with unfairness as to make the resulting conviction a de-
nial of due process.” Darden v. Wainwright, 477 U.S. 168,
181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). To determine whether a defendant was so
prejudiced, we consider the following: 1) whether the pros-
ecutor misstated the evidence; 2) whether the remark
implicated specific rights of the accused; 3) whether the
defense invited the response; 4) the trial court’s instruc-
tions; 5) the weight of the evidence against the defendant;
and 6) the defendant’s opportunity to rebut. Whitehead
v. Cowan, 263 F.3d 708, 728 (7th Cir. 2001). The most
important factor is the weight of the evidence against
the defendant. Howard v. Gramley, 225 F.3d 784, 793 (7th
Cir. 2000).
Applying these factors to this case, it is apparent that the
prosecutor in no way misstated the evidence. He simply
8 No. 02-3834
commented on defense counsel’s impeachment technique.
Love does not claim, nor could he, that the remark impli-
cated specific rights. Moreover, the district court prop-
erly dealt with the situation. After the objection was
made, the district court sustained the objection and the
government withdrew the comment. The court also re-
minded jurors during the jury instructions that state-
ments of counsel are not evidence. Given the isolated
nature and lack of gravity of the comment, the court’s
actions to rectify the situation were sufficient. Moreover,
the weight of the evidence against Love is overwhelming.
Because Love cannot show the prosecutor’s comment
affected the outcome of his trial, United States v. Morgan,
113 F.3d 85, 89 (7th Cir. 1997), his claim fails. Accord-
ingly, the judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-03