United States v. Price, Terraun ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3780, 03-3764 & 03-3884
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRAUN PRICE, also known as
BOO ROCK, TERENCE DILWORTH,
also known as T, and WILLIAM J.
DAVISON, also known as TALL ONE,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
Nos. 01 CR 98 & 02 CR 44—James T. Moody, Judge.
____________
ARGUED FEBRUARY 25, 2005—DECIDED AUGUST 15, 2005
____________
Before BAUER, POSNER and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Terence Dilworth, Terraun Price and
William Davison all were convicted of drug-related of-
fenses. They appeal their convictions and sentences on
several grounds. For the reasons set forth in the following
opinion, we affirm the defendants’ convictions. We further
order, while retaining jurisdiction, a limited remand of this
2 Nos. 03-3780, 03-3764 & 03-3884
case to the district court as required by United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005).
I
BACKGROUND
A. Facts
We shall set forth here a brief rendition of the facts
relevant to this appeal; the facts that bear specifically on the
defendants’ contentions on appeal will be discussed in
greater detail further below.
The defendants’ convictions stemmed from a federal
investigation of the illegal drug trade in Gary, Indiana. At
various times, the defendants became involved in a criminal
conspiracy that existed to distribute crack cocaine and other
drugs in the Concord neighborhood of Gary. The conspir-
acy, which existed from 1994 until 2001, eventually came to
be led by Bobby Suggs. See United States v. Suggs, 374 F.3d
508, 512 (7th Cir. 2004). The conspiracy members trafficked
in crack cocaine and other drugs near a government housing
complex (“the Hill”). The defendants also were involved
with Concord Affiliated (“CCA”), a rap group and a street
gang associated with the well-known Vice Lords gang.
B. District Court Proceedings
Mr. Price was indicted on June 20, 2001, along with 32
other individuals. He was charged with commission of three
crimes: (1) conspiracy to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 846; (2) use of a
telephone to facilitate the commission of a felony, in vio-
lation of 21 U.S.C. § 843(b); and (3) possession of marijuana
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
Nos. 03-3780, 03-3764 & 03-3884 3
Mr. Dilworth and Mr. Davison were indicted on June 7,
2002, along with four other individuals. Mr. Dilworth was
charged with one count of conspiracy to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. § 846; and
two counts of distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1). Mr. Davison was charged with the same
crimes.
The defendants’ cases were consolidated for trial. During
the proceedings, the Government introduced evidence to
which the defendants object in this appeal; this evidence
will be discussed in greater detail below. The Government
also introduced the testimony of Kenneth Lewis, a resident
of the Concord neighborhood. The defendants now chal-
lenge the use of Lewis’ testimony on the ground that it
violates the principles set forth in Brady v. Maryland, 373
U.S. 83, 87 (1963).
At the conclusion of the trial, the jury found Mr. Price
guilty of conspiring to distribute 50 grams or more of
cocaine base and using a telephone to facilitate the commis-
sion of a felony. Mr. Price was acquitted on the marijuana
charge. The jury returned guilty verdicts against
Mr. Dilworth on all counts against him. The jury found
Mr. Davison guilty on both distribution counts against him
but acquitted him on the conspiracy count.
The court sentenced the defendants believing the federal
sentencing guidelines to be mandatory. The court sentenced
Mr. Price to life in prison on the conspiracy count and to
48 months, to run concurrently with his life sentence, for the
use of a telephone to facilitate the commission of a felony.
Mr. Dilworth received a sentence of 360 months. Mr.
Davison received a sentence of 360 months.
4 Nos. 03-3780, 03-3764 & 03-3884
II
DISCUSSION
A. Admission of Wiretap Evidence
During its investigation of the illegal drug trade in Gary,
the FBI repeatedly sought the district court’s permission to
intercept telephone communications involving suspected
members of the conspiracy. In January 2001, the FBI sought
permission to extend a wiretap authorization that previously
had been granted to intercept communications occurring to
and from one phone number (“Target Number One”). In the
same application, the FBI also sought authorization to
intercept communications occurring to and from two other
numbers (“Target Number Two” and “Target Number
1
Three”). See 18 U.S.C. § 2518 (allowing a court to authorize
interception of wire or other communications within the
court’s territorial jurisdiction). In an affidavit supporting the
wiretap request, FBI Special Agent Anthony Riedlinger
alleged that undercover agents had been unable to infiltrate
the targeted conspiracy to buy drugs, that government in-
formants had been beaten and threatened and that physical
surveillance of targeted subjects had caused illegal activities
to be moved elsewhere. The district court issued an order
granting the FBI permission to intercept communications
made to and from these three phone numbers. The record-
ings made pursuant to the authorized wiretaps revealed a
conversation between Bobby Suggs, speaking from Target
Number Three, and Mr. Price.
Before trial, Mr. Price moved to suppress the fruits of the
wiretap that the district court had authorized. He alleged
that “all” the communications the Government had inter-
cepted by wiretap “were unlawfully intercepted” and that
1
Target Number Two is not implicated in this appeal.
Nos. 03-3780, 03-3764 & 03-3884 5
the “authorization . . . under which these communications
were intercepted is insufficient on its face.” Price’s
2
Sep. App., Tab C at 1. The district court denied Mr. Price’s
motion to suppress, noting that the motion was “much too
broad for the court to meaningfully evaluate it” and that it
was “Price’s responsibility . . . [to] narrow[ ] the field to the
communications he believes were unlawfully obtained.”
Price’s Sep. App., Tab D at 2. The wiretap evidence was
admitted at trial over Mr. Price’s renewed objection. On
appeal, Mr. Price contends that the FBI’s application for the
wiretap did not establish probable cause and did not
establish necessity as required by statute.
1. Standard of Review
This court reviews de novo a district court’s finding that
a wiretap application established probable cause. See United
States v. Dumes, 313 F.3d 372, 379 (7th Cir. 2002). A district
court’s determination that an application established
necessity for a wiretap is reviewed for abuse of discretion.
See id. at 378-79.
2. 18 U.S.C. § 2518Section 2518 of Title 18 outlines the requirements that
must be met by an application to intercept wire, oral or ele-
ctronic communications. First, a wiretap application must
establish probable cause. See 18 U.S.C. § 2518(3)(a), (b)
(court must determine that there is “probable cause for
2
The documents referred to are part of Mr. Price’s appendix. We
have not been able to locate them in the record on appeal. The
existence of the documents and their contents is not in conten-
tion.
6 Nos. 03-3780, 03-3764 & 03-3884
belief that an individual is committing . . . a particular
offense enumerated in section 2516 of this chapter” and “for
belief that particular communications concerning that
offense will be obtained through such interception”).
A wiretap application also must establish necessity. See id.§ 2518(1)(c) (application for wiretap must include a full and
complete statement as to whether “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too danger-
ous”). Statements asserting that the necessity requirement
of § 2518(1)(c) has been met should “be reviewed in a
practical and commonsense fashion.” United States v.
Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988). If the Govern-
ment offers a “valid factual basis” for the necessity of a
wiretap—alleging, for instance, that “informants and
undercover agents could not infiltrate the drug conspiracy”
or that “physical surveillance might alert the subject to the
investigation”—the necessity requirement is met. United
States v. Ceballos, 302 F.3d 679, 683 (7th Cir. 2002); see also
Dumes, 313 F.3d at 378 (“[W]e will affirm a district court’s
finding that normal investigative procedures are not likely
to be successful as long as there was a factual predicate in
the affidavit.” (internal quotation omitted)).
3. The Wiretap Evidence in the Present Case
Mr. Price submits that Agent Riedlinger’s affidavit did not
establish probable cause because it relied on interpretations
of everyday language to suggest drug activity. Mr. Price
claims that this evidence would not “warrant a prudent
man in believing that the [suspect] had committed or was
committing an offense.” Woods v. City of Chicago, 234 F.3d
979, 996 (7th Cir. 2000) (defining “probable cause”). Mr.
Price also claims that Agent Riedlinger’s application did not
Nos. 03-3780, 03-3764 & 03-3884 7
establish necessity because, he contends, the application
only referred to Target Number One.
The Government asserts that probable cause was shown
because Agent Riedlinger’s affidavit averred that a call had
been intercepted between Target Number One, for which
interception already was authorized, and Target Number
Three, for which a wiretap was being sought. The person
using Target Number Three was Bobby Suggs, who had
been identified as a suspected member of the conspiracy.
The Government also submits that necessity was shown by
Agent Riedlinger’s detailed account in his affidavit regard-
ing the inability of investigators to generate evidence using
traditional law enforcement techniques.
On the issue of probable cause, our review of
Agent Riedlinger’s affidavit leads to our independent con-
clusion that probable cause existed with respect to Target
Number Three. In particular, the affidavit describes one
recorded phone call between Target Number One and
Target Number Three. In the phone call, Shawn Tarver
(speaking from Target Number One) and Bobby Suggs
(speaking from Target Number Three) discuss an upcoming
“party” and where it was to take place. Price’s Sep. App.,
Tab N at 31. Later in the conversation, Tarver states that he
“just got supplied yesterday.” Id. Furthermore, Agent
Riedlinger’s affidavit described the results obtained through
a dialed number recorder used on Target Number Three.
From October 2000 until January 2001, with court permis-
sion, the FBI made a record of the telephone calls made
from and dialed to Target Number Three. The dialed
number records showed numerous calls made to and from
other targets of the investigation. We believe that, taken
together, these circumstances constitute probable cause for
the belief that Suggs and Tarver were engaged in drug
offenses and for the belief that communications related to
8 Nos. 03-3780, 03-3764 & 03-3884
the drug offenses would be obtained through the wiretap of
Target Number Three.
Furthermore, Agent Riedlinger’s description of the failure
of ordinary investigative techniques is sufficient to establish
necessity. Contrary to Mr. Price’s submission, the content of
the affidavit, when read in its totality, addresses necessity
with respect to all three target numbers.
The affidavit relates that physical surveillance had not
been of much value, both because the close-knit neighbor-
hood in which the targets of the investigation lived made it
hard to conceal police presence and because the targets had
begun to conduct counter-surveillance. It was difficult for
agents to obtain the help of cooperating witnesses because
the strong bonds between CCA members made it unlikely
that any high-ranking members would turn on their friends;
the Government was not able to contact any cooperating
witness that knew the details of the roles that the targets
played in CCA operations. Furthermore, some of the targets
had been informed that they were under investigation,
which made the use of cooperating witnesses more danger-
ous. Agent Riedlinger also averred that undercover agents
would not have been useful because the targets did not trust
strangers. He also claimed that search warrants would have
compromised the secrecy of the investigation. In view of all
the contents of Agent Riedlinger’s affidavit, we believe that
the district court acted within its discretion when it con-
cluded that the affidavit established a factual basis for the
necessity of the wiretap.
On the record in this case, we must conclude that the
Government established both probable cause and necessity
through Agent Riedlinger’s affidavit. Thus, we also con-
clude that the district court appropriately admitted the
wiretap evidence at trial.
Nos. 03-3780, 03-3764 & 03-3884 9
B. Admission of Other Evidence
Mr. Price and Mr. Dilworth take issue with several rulings
of the district court admitting evidence at trial. We shall
review the challenged evidence in more detail below.
1. Standard of Review
The Federal Rules of Evidence state that, generally, “[a]ll
relevant evidence is admissible” and that “[e]vidence which
is not relevant is inadmissible.” Fed. R. Evid. 402. Relevant
evidence is defined under the Rules as “evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. However, Rule 403 provides
that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
We review a district court’s evidentiary rulings for abuse
of discretion. See United States v. Brown, 289 F.3d 989, 994
(7th Cir. 2002). “[E]ven erroneous evidentiary rulings will
not be overturned if any resulting error was harmless.”
United States v. Farmer, 924 F.2d 647, 654 (7th Cir. 1991).
A point of particular contention between the parties in
this appeal is whether an objection to evidence on Rule 403
grounds must be asserted separately from an objection to
that evidence based on relevance. In this circuit, “[a] general
objection to ‘relevance[ ]’ . . . is not sufficient to preserve an
objection under Rules 404(b) or 403.” United States v. Mejia,
909 F.2d 242, 246 (7th Cir. 1990); see also United States v.
Carroll, 871 F.2d 689, 691 (7th Cir. 1989) (noting the general
10 Nos. 03-3780, 03-3764 & 03-3884
rule that the specific basis for reversal of an evidentiary
ruling on appeal must be the same as the one raised at trial).
When a party has failed to raise at trial the specific ground
on which he appeals the trial court’s evidentiary ruling, this
court reviews only for plain error. Mejia, 909 F.2d at 247; see
also Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(d). In the
evidence context, “[a] ‘plain error’ is one that results in ‘an
actual miscarriage of justice,’ which implies that the defen-
dant ‘probably would have been acquitted’ but for the
erroneously admitted evidence.” Mejia, 909 F.2d at 247(quoting Carroll, 871 F.2d at 692).
2. Weapons from 1770 Hanley Street
Pursuant to a search warrant, government agents in
May 2001 searched 1770 Hanley Street in Gary, the home of
Bobby Suggs, Sr. and Warena Suggs. Bobby, Sr. and Warena
are the parents of Bobby Suggs, and of another convicted
conspirator, Seantai Suggs. The search resulted in the dis-
covery of four weapons (“the Hanley Street weapons”): a
.357 caliber handgun, a .38 caliber handgun, a .44 caliber
magnum handgun and a .20 gauge sawed-off shotgun. The
Hanley Street weapons were admitted in evidence at trial
over the defendants’ Rule 403 objection.
On appeal, the defendants contend that the district court
abused its discretion by admitting the Hanley Street weap-
ons. They contend that the admission of the weapons
impermissibly “inflame[d] the passions of the jury,”
Dilworth’s Br. at 28, and were not probative of the existence
of a conspiracy because Bobby, Sr. and Warena were not
identified in the Government’s evidentiary proffer as
members of the conspiracy. The Government, on the other
hand, contends that the Hanley Street weapons were highly
Nos. 03-3780, 03-3764 & 03-3884 11
probative of the existence of a conspiracy in light of the fact
that Bobby and Seantai Suggs had access to their parents’
home.
This court previously has remarked that “guns are tools
of the drug trade and are therefore relevant evidence in a
drug case.” United States v. Van Dreel, 155 F.3d 902, 906 (7th
Cir. 1998). We conclude that the district court acted within
its discretion in admitting into evidence the Hanley Street
weapons.
3. Gary Police Alert
The defendants also challenge the admission of a Gary
Police Department intelligence alert (“the police alert”), a
document seized from Bobby, Sr. and Warena Suggs’ home
3
at 1770 Hanley Street. The document was prepared by the
Gary Police. It listed known members of CCA, including
Mr. Dilworth and Bobby and Seantai Suggs (but not
Mr. Price or Mr. Davison). The defendants contended at trial
that the document was irrelevant, that it was hearsay and
that it violated the Confrontation Clause of the Sixth
Amendment. The district court held that the document was
non-hearsay because it was not offered to prove that the
listed men were members of CCA, but rather was offered to
show that CCA was engaging in counter-surveillance. On
appeal, the defendants contend that the district court
committed an abuse of discretion by failing to exclude the
3
Mr. Dilworth’s brief also mentions, in the same heading that
concerns the police alert, a piece of evidence to which he does not
direct any further argument in the body of his brief: “the Vice
Lords Oath.” Dilworth’s Br. at 28. The defendants make no
further mention of the oath, and they did not address it at oral
argument. Consequently, we shall not address it either.
12 Nos. 03-3780, 03-3764 & 03-3884
police alert on the grounds of relevance, hearsay and the
Sixth Amendment Confrontation Clause.
The district court was well within its discretion in over-
ruling the defendants’ relevance objection to the police alert.
Evidence that members of an alleged conspiracy were
conducting counter-surveillance of police activity certainly
makes more probable the existence of a conspiracy to break
4
the law.
Furthermore, the district court acted well within its
discretion when it concluded that the police alert was not
hearsay. Although it constitutes an out-of-court statement,
the police alert was not “offered in evidence to prove the
truth of the matter asserted,” and therefore it is not hearsay.
Fed. R. Evid. 801(c). Although the police alert includes Mr.
Dilworth’s name as a member of an alleged conspiracy, the
alert was not introduced to prove that assertion. When the
Government sought to introduce the police alert at trial, it
argued that the alert was being introduced “to show that it
was found in Bobby Suggs’ home” and “to show counter-
surveillance.” Tr.IV at 10. The Government explicitly stated
that the police alert was not being introduced “in the record
to argue that because of [the police alert], these people are
members of a gang.” Id. The district court did not abuse its
discretion in failing to exclude the police alert on hearsay
grounds.
4
In other of our cases, we have considered evidence of counter-
surveillance as relevant to certain aspects of a conspiracy. Cf.
United States v. Carillo, 269 F.3d 761, 771 (7th Cir. 2001) (noting
that defendant’s role in a conspiracy had not been a minor one
when he had conducted counter-surveillance for the members of
the conspiracy).
Nos. 03-3780, 03-3764 & 03-3884 13
Finally, our determination that the police alert was not
hearsay leads us to conclude that there is no merit to the
defendants’ contention that admission of the police alert
violated the Confrontation Clause of the Sixth Amendment.
The defendants correctly point out that the Supreme Court
held in Crawford v. Washington, 541 U.S. 36, 68 (2004), that
the admission of testimonial hearsay evidence at trial, when
the witness is unavailable and the defendant has had no
opportunity to cross-examine the witness, violates the
Confrontation Clause of the Sixth Amendment. However,
the Court in Crawford also noted explicitly that the
Confrontation Clause “does not bar the use of testimonial
statements for purposes other than establishing the truth of
5
the matter asserted.” Id. at 59 n.9 (citing Tennessee v. Street,
471 U.S. 409, 414 (1985) (holding that “nonhearsay aspect
of . . . confession” raised “no Confrontation Clause con-
cerns” (emphasis in original))). The police alert was not
introduced to prove the truth of the matters asserted in it.
The district court therefore committed no error in failing to
exclude the police alert on Sixth Amendment Confrontation
Clause grounds.
5
Although we decide the Confrontation Clause issue on the
ground that the police alert was not used to establish the truth of
the matters asserted therein, we also point out that the police
alert may not fall within the definition of “testimonial” evidence
for purposes of the Sixth Amendment. In Crawford v. Washington,
541 U.S. 36, 68 (2004), the Court “le[ft] for another day any effort
to spell out a comprehensive definition of ‘testimonial.’ ” The
Court noted that the definition of “testimonial” includes, “at a
minimum,” “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . . police interrogations.” Id.14 Nos. 03-3780, 03-3764 & 03-3884
4. Weapons from 1727 Clinton Street
On April 25, 1996, Gary police officer James Gaskey
chased a suspect into 1727 Clinton Street, a drug house out
of which Bobby Suggs sold crack cocaine. Inside 1727
Clinton Street, Officer Gaskey made several arrests and
discovered twelve weapons (“the Clinton Street weapons”).
When the Government sought to introduce these weapons,
the defendants objected on relevance grounds. The court
overruled the objection.
On appeal, the defendants assert that the district court
should have excluded the weapons on relevance grounds
and on Rule 403 grounds. They submit that the Clinton
Street weapons were not relevant because there was no indi-
cation of who lived at 1727 Clinton Street. The Government
contends that the Clinton Street weapons were relevant
because they had some tendency to show that Bobby Suggs
was leading a conspiracy to sell crack cocaine near the Hill.
The district court acted within the bounds of its discretion
when it overruled the defendants’ relevance objection. As
we already have noted, evidence of weapons is relevant in
a drug case. Furthermore, Officer Gaskey testified at trial
that Bobby Suggs, the alleged leader of the drug conspiracy,
was present at 1727 Clinton Street when the weapons were
seized. Thus, the presence of weapons was relevant to
establishing the existence of the conspiracy.
The defendants also seem to contend on appeal that the
Clinton Street weapons were more prejudicial than proba-
tive and should not have been admitted into evidence. See
Dilworth’s Br. at 30 (“[T]his evidence was offered solely to
influence the emotions of the mostly white jury.”). Because
the defendants did not raise a Rule 403 objection to these
weapons at trial, the assertion that the weapons were more
prejudicial than probative should be reviewed only for plain
Nos. 03-3780, 03-3764 & 03-3884 15
error. We certainly cannot conclude that the district court
committed plain error in admitting the weapons. As the
Government points out, there were numerous other weap-
ons introduced at trial and attributed to the conspiracy. We
simply cannot say, in light of the other evidence introduced
at trial, that “an actual miscarriage of justice” resulted from
the introduction of the guns seized from 1727 Clinton Street.
See Carroll, 871 F.2d at 692.
5. Pole Camera Video Tape
As part of the FBI’s surveillance activities, a camera was
installed on a telephone pole near the Hill from
October 1996 to March 1997. At trial, the Government
played some of the tape recorded by the pole camera. The
defendants objected at trial on relevance and hearsay
grounds, but did not raise a Rule 403 objection.
On appeal, the defendants contend that the tape was
irrelevant because it did not provide enough detail to show
the identity of persons filmed; they also contend that the
tape was prejudicial and confused the jury. The Government
asserts that the tape was relevant because it tended to show
that organized drug dealing occurred near the Hill.
In view of the high degree of deference accorded to a
district court’s evidentiary rulings, we must conclude that
the court did not abuse its discretion by failing to exclude
the pole camera tape on relevance grounds. We do not be-
lieve that admission of the pole camera tape was error
because the tape, which showed unidentifiable individuals
engaging in what a police officer testified appeared to be
drug transactions, made more probable the existence of a
drug conspiracy operating around the Hill.
With respect to the defendants’ contention that the intro-
duction of the pole camera tape was prejudicial and con-
16 Nos. 03-3780, 03-3764 & 03-3884
fusing, we must conclude that the defendants have not
established that the district court committed plain error in
admitting the tape. Even assuming that it would have been
error to admit the pole camera tape over a proper Rule 403
objection, it was not prejudicial to the defendants. The pole
camera tape merely displayed drug activity on the Hill to
which other witnesses already had testified. The fact that
this gave the jury a physical, as opposed to a mental, picture
of that activity does not render the tape unduly prejudicial.
On the facts of this case, we cannot say that the introduction
of the pole camera tape resulted in “an actual miscarriage of
justice.” Carroll, 871 F.2d at 692.
6. Photographs Seized from Laidback Records
In May 2001, FBI agents executed a search warrant at
Laidback Records, the recording label for the CCA rap
group. Several photographs were seized from Laidback
Records and were admitted at trial. One photograph showed
Mr. Dilworth, along with Bobby Suggs, Seantai Suggs and
other co-conspirators, sitting atop an SUV. Mr. Price ap-
peared in two other photographs; in one, he was seated in
a car in which another passenger was carrying a handgun.
At trial, the defendants objected to the photographs on rele-
vance grounds, and the district court overruled the objec-
tion.
On appeal, the defendants submit that the district court
abused its discretion by failing to exclude the photographs
on relevance grounds. For the first time on this appeal, they
raise Rule 403 grounds.
Turning to the relevance objection, the district court did
not abuse its discretion. The photographs established a con-
nection among the defendants and therefore were relevant
Nos. 03-3780, 03-3764 & 03-3884 17
because they had the tendency to make the defendants’
participation in the conspiracy more likely.
With respect to the alleged Rule 403 error, which we
review only for plain error, we conclude that there was no
“actual miscarriage of justice,” Carroll, 871 F.2d at 692, from
the admission of the photographs. The photographs were
indeed probative of the defendants’ associations with other
conspirators, and the danger of prejudice from the photo-
graphs was minimal in light of the fact that numerous other
photographs admitted into evidence at trial showed the
defendants associating with other gang members and
flashing gang symbols. Therefore, the defendants cannot
prevail on this ground. The district court properly admitted
into evidence the photographs seized at Laidback Records.
7. Song Lyrics
At trial, the Government introduced “One Life 2 Live,” a
compact disc recorded by the CCA rap group; a music video
made by the CCA rap group; and the lyrics to “COKE,” a
song from the “One Life 2 Live” CD. The district court
admitted the CD, the music video and the song lyrics over
the defendants’ objections. Specifically, the defendants
objected to these items on relevance grounds and, later,
objected to the song lyrics on Rule 403 grounds. In its oral
rulings on the objections, the district court stated that the
evidence “of the jargon that’s pervasive in the drug trade”
would aid the jury. Tr.V at 174.
On appeal, the defendants contend that the “COKE” song
lyrics should not have been admitted at trial because the
danger of unfair prejudice from their admission outweighed
their probative value. We review this claim for abuse of
discretion.
18 Nos. 03-3780, 03-3764 & 03-3884
We have held in the past that rap lyrics, because they
reflect “urban life” and “the reality around [the song’s]
author,” can be relevant to drug crimes. United States v.
Foster, 939 F.2d 445, 456 (7th Cir. 1991). In this case, the
lyrics were possibly of some help to the jury in assessing the
evidence. However, the possible prejudicial value of these
song lyrics certainly gives us pause. Nonetheless, regardless
of whether the district court was in error in overruling the
defendants’ Rule 403 objection to the song lyrics, we shall
not overturn its ruling because any error that resulted from
the admission of the lyrics was harmless. See Farmer, 924
F.2d at 654. The district court admitted the song lyrics in
order for them to be interpreted by a federal agent with
specialized knowledge of the drug trade, and it appears that
the lyrics were used in that manner at trial. Moreover, it was
made clear at trial that the authorship of the song was
unknown; it was not attributed to any of the defendants. We
conclude that the admission at trial of the lyrics, if in error,
was harmless.
8. Mr. Dilworth’s Past Arrest for Drug Dealing
In September 1994, an undercover Gary police officer
observed Mr. Dilworth engaging in drug dealing near the
Hill. Mr. Dilworth was arrested after he left the Hill; a post-
arrest search of his person did not recover any drugs. At
trial, Mr. Dilworth objected to the officer’s testimony re-
garding that arrest on the ground that it was inadmissible
under Federal Rule of Evidence 404(b). The Government
argued that it was evidence of an overt act in furtherance of
the conspiracy. The court overruled Mr. Dilworth’s objec-
tion.
On appeal, Mr. Dilworth argues that the district court
abused its discretion by failing to exclude the undercover
Nos. 03-3780, 03-3764 & 03-3884 19
officer’s testimony on Rule 404(b) grounds. The Government
contends that the officer’s testimony was admissible because
Mr. Dilworth’s drug dealing constituted an overt act in
furtherance of the conspiracy in which Mr. Dilworth was
alleged to have participated.
According to Rule 404(b), the Government may not in-
troduce evidence of a defendant’s “prior misconduct merely
to demonstrate ‘that a defendant has a propensity to commit
crime and that he acted in conformity with that propensity
on the occasion in question.’ ” United States v. Hughes, 310
F.3d 557, 564 (7th Cir. 2002) (quoting United States v. Best,
250 F.3d 1084, 1090 (7th Cir. 2001)). However, the Govern-
ment may present evidence of prior misconduct in order to
prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b).
This court uses a four-prong test to determine whether
evidence of prior misconduct is admissible under
Rule 404(b). According to the test,
[e]vidence of prior crimes, wrongs, or acts may be
admitted when: (1) the evidence is directed toward es-
tablishing a matter in issue other than the defendant’s
propensity to commit the crime charged; (2) the evi-
dence shows that the other act is similar enough and
close enough in time to be relevant to the matter in
issue; (3) the evidence is sufficient to support a jury
finding that the defendant committed the similar act;
and (4) the probative value of the evidence is not sub-
stantially outweighed by the danger of unfair prejudice.
United States v. Asher, 178 F.3d 486, 492 (7th Cir. 1999).
Mr. Dilworth’s submissions to this court do not make
particularly clear on which of these prongs he bases his
arguments. Nonetheless, we must conclude that the district
20 Nos. 03-3780, 03-3764 & 03-3884
court acted within its discretion in admitting the evidence
of Mr. Dilworth’s prior arrest for drug dealing over a
Rule 404(b) objection. First, the evidence establishes oppor-
tunity, plan and knowledge on Mr. Dilworth’s part with
respect to the charges of conspiracy and drug trafficking.
Second, the evidence of Mr. Dilworth’s September 1994
arrest is similar in nature and close in time to the charges
against Mr. Dilworth. Mr. Dilworth was charged with parti-
cipating in a conspiracy to sell drugs beginning in 1994 and
the actions that led to the arrest are quite similar to the
charged conspiracy. Third, although there is, as
Mr. Dilworth himself points out, no evidence that he ever
was prosecuted or convicted based on the September 1994
arrest, we think that the undercover officer’s testimony at
trial provided sufficient evidence to allow a jury to conclude
that Mr. Dilworth committed the similar act. Finally, we
believe that the probative value of the evidence of the arrest
outweighs its prejudicial value.
Thus, we must conclude that evidence of Mr. Dilworth’s
arrest for drug dealing was admissible Rule 404(b) evidence
and, therefore, that the district court did not abuse its
discretion in allowing the officer to testify regarding
Mr. Dilworth’s arrest.
9. Drugs Discovered in Mr. Dilworth’s Vehicle
In June 1995, Gary police officer Phillip Pardus made a
traffic stop of a vehicle driven by a high-level member of
CCA. Officer Pardus conducted a consensual search of
the vehicle. The vehicle that was the subject of the stop
was owned by Mr. Dilworth. In Mr. Dilworth’s car,
Officer Pardus found several baggies containing crack
cocaine.
Nos. 03-3780, 03-3764 & 03-3884 21
At trial, Mr. Dilworth objected to Officer Pardus’ testi-
mony regarding the drugs on several grounds, one of which
was Rule 403. He again raises the Rule 403 argument on
appeal and also belatedly argues that the evidence of drugs
was irrelevant.
The district court’s conclusion that the probative value of
Officer Pardus’ testimony outweighed the danger of unfair
prejudice was not an abuse of its discretion. The evidence
clearly had probative value because it tended to show that
Mr. Dilworth had loaned his car to another member of the
conspiracy. Furthermore, the risk of unfair prejudice to
Mr. Dilworth was low. For instance, as Officer Pardus tes-
tified, there was no concern that the vehicle was being used
without the owner’s permission because “[t]here didn’t
appear to be any signs or indications that the car was
stolen.” Tr.IV at 200.
Mr. Dilworth did not raise a relevance objection at trial,
but even if he had, admitting Officer Pardus’ testimony
would not have been error, let alone error that is plain. His
testimony was relevant because it connected Mr. Dilworth
to other members of the conspiracy, thus making it more
probable that Mr. Dilworth was himself a member of the
conspiracy. Therefore, we cannot conclude that the district
court committed plain error by admitting Officer Pardus’
testimony.
C. Testimony of Kenneth Lewis
Kenneth Lewis testified at trial as a government witness.
As a neighbor of Mr. Price and a resident of the Concord
area, Lewis testified to having seen members of the conspir-
acy selling crack cocaine. Lewis also testified that he had
purchased crack cocaine from members of the conspiracy.
At trial, the Government claimed that it never had promised
22 Nos. 03-3780, 03-3764 & 03-3884
Lewis, in exchange for his testimony, that he would not be
charged with a crime. At Mr. Dilworth’s sentencing hearing,
when asked whether the Government had promised Lewis
that he would not be charged, FBI Agent Bradley Bookwalter
replied that he was not sure but that an Assistant United
States Attorney might have made such a promise. Agent
Bookwalter also stated that any promises would have been
documented in reports that were turned over to the defen-
dants. In this appeal, Mr. Price and Mr. Dilworth both
contend that the Government’s failure to disclose the
agreement is a ground for a new trial based on Brady, 373
U.S. 83.
The Supreme Court in Brady held “that the suppression by
the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Id. at 87. A district court has broad
discretion to determine Brady violations, and we review the
court’s exercise of that discretion for abuse. See United States
v. Knight, 342 F.3d 697, 705 (7th Cir. 2003), cert. denied sub
nom. Williams v. United States, 540 U.S. 1227 (2004).
To prove a Brady violation, a defendant must show: (1)
that the “evidence at issue [is] favorable to the accused,
either because it is exculpatory, or because it is impeach-
ing”; (2) that the evidence was “suppressed by the State,
either willfully or inadvertently”; and (3) that “prejudice . . .
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The
third prong also has been phrased in terms of whether “the
evidence was material to an issue at trial.” Boss v. Pierce, 263
F.3d 734, 740 (7th Cir. 2001). The Supreme Court has held
that evidence that a witness who testified for the Govern-
ment was the beneficiary of an “understanding or agree-
ment as to a future prosecution” is “relevant to [that wit-
ness’] credibility” and that, in some circumstances, the
Nos. 03-3780, 03-3764 & 03-3884 23
suppression of such information will violate an accused’s
right to due process. Giglio v. United States, 405 U.S. 150, 154-
55 (1972); see also Crivens v. Roth, 172 F.3d 991, 998 (7th Cir.
1999).
Mr. Price and Mr. Dilworth contend that the Government
committed a Brady violation when it failed to disclose its
agreement with Lewis, because Lewis’ testimony was
material at trial and because evidence of the agreement
would have impeached Lewis’ credibility. Although Agent
Bookwalter at one point alluded to a possible agreement
between the Government and Lewis, he admitted that
he did not speak with certainty. Furthermore, as the Gov-
ernment points out, no document suggests any promise
from the Government to Lewis. Because there was no
promise, no Brady violation occurred and Mr. Price and
Mr. Dilworth are not entitled to new trials.
D. Sentencing
Mr. Price, Mr. Dilworth and Mr. Davison contend that
they are entitled to resentencing because their sentences vio-
late the Sixth Amendment as interpreted in United States v.
Booker, 125 S. Ct. 738 (2005) (holding that federal sentencing
guidelines are not mandatory and rendering the guidelines
effectively advisory). Because none of the defendants raised
the proper objection before the district court, we review for
plain error. United States v. Paladino, 401 F.3d 471, 480-81
(7th Cir. 2005).
The test for plain error dictates that, “before an appellate
court can correct an error not raised at trial, there must be
(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial
rights.’ ” United States v. Cotton, 535 U.S. 625, 631 (2002)
(quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
If those three conditions are met, “ ‘an appellate court may
24 Nos. 03-3780, 03-3764 & 03-3884
then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.’ ” Id. (quoting
Johnson, 520 U.S. at 467).
1. Mr. Price’s Sentence
Under the federal sentencing guidelines, the jury’s verdict
on the conspiracy charge against Mr. Price required a base
offense level of 32. See U.S.S.G. § 2D1.1(c)(4) (at least 50
grams but less than 150 grams of cocaine base). The district
court determined that the total amount of cocaine base
attributable to Mr. Price was more than 1.5 kilograms,
which increased the base offense level to 38. See id.
§ 2D1.1(c)(1). The district court applied a two-level enhance-
ment for possession of a dangerous weapon in connection
with a drug offense, see id. § 2D1.1(b)(1), and a three-level
enhancement for Mr. Price’s role as a supervisor or manager
6
of the criminal activity, see id. § 3B1.1(b). The enhanced
offense level, combined with Mr. Price’s criminal history
category of IV, required a life sentence. The court also
sentenced Mr. Price to a term of 48 months for his convic-
tion for using a telephone to facilitate the commission of a
felony, to be served concurrently with the life sentence.
Turning to our plain error analysis, the district court in
this case based Mr. Price’s sentence on supplemental facts
neither admitted by Mr. Price nor proven to the jury beyond
a reasonable doubt, an action which we have recognized to
“violate[ ] our new understanding of the Sixth Amendment
6
Mr. Price contends that the district court applied to his sentence
a two-level enhancement for CCA’s use of a minor as a lookout.
However, the transcript from Mr. Price’s sentencing does not
contain any reference to such an enhancement.
Nos. 03-3780, 03-3764 & 03-3884 25
as divined by Booker, . . . thereby constitut[ing] error.”
United States v. White, 406 F.3d 827, 835 (7th Cir. 2005).
Additionally, the district conducted the sentencing believ-
ing, understandably, the federal sentencing guidelines to be
mandatory. The first two prongs of the plain error test are
therefore satisfied. See id.; see also United States v. Castillo, 406
F.3d 806, 824 (7th Cir. 2005) (holding that mandatory
application of the Guidelines is error that satisfies the first
two prongs of test for plain error). However, with respect to
the third and fourth prongs of the plain error test, we must
conclude that we cannot, on this record, determine “what
the district court would have done with the additional
sentencing discretion now afforded by Booker.” Castillo, 406
F.3d at 825. Thus, while retaining jurisdiction, we order a
limited remand to the district court for proceedings consis-
tent with our decision in Paladino, 401 F.3d at 483-84.
2. Mr. Dilworth’s Sentence
At sentencing, the district court found at least 1.5 kilo-
grams of cocaine base attributable to Mr. Dilworth’s of-
fenses, which established a combined offense level of 38. See
U.S.S.G. § 2D1.1(c)(1) (1.5 kilograms or more of cocaine
base). The district court also applied a two-level enhance-
ment for possession of a dangerous weapon in connection
with a drug offense. See id. § 2D1.1(b)(1). The resulting
offense level of 40, along with Mr. Dilworth’s criminal
history category of III, called for a sentencing range of 360
months to life. The court sentenced Mr. Dilworth to 360
months’ imprisonment on each of his three convictions, with
the sentences to run concurrently.
With respect to Mr. Dilworth’s sentence, the first two
prongs of the test for plain error are established by the
district court’s reliance on facts that were neither admitted
by Mr. Dilworth nor proven to the jury beyond a reasonable
26 Nos. 03-3780, 03-3764 & 03-3884
doubt and by the mandatory application of the guidelines.
See White, 406 F.3d at 835. While retaining jurisdiction over
this appeal, we order a limited remand of Mr. Dilworth’s
case for proceedings consistent with Paladino, so that we
may complete our plain error analysis.
3. Mr. Davison’s Sentence
The jury’s verdict against Mr. Davison on the two dis-
tribution charges required a base offense level of 18, see
U.S.S.G. § 2D1.1(c)(11) (at least 1 gram but less than 2 grams
of cocaine base), which would have carried a sentence of 27
to 33 months. However, despite the fact that the jury had
acquitted Mr. Davison on the conspiracy charge, the district
court at sentencing found by a preponderance of the evi-
dence that Mr. Davison had been a member of the conspir-
acy and that more than 1.5 kilograms of cocaine base were
attributable to him as a result. These findings elevated
Mr. Davison’s combined offense level to 38. See id.
(1.5 kilograms or more of cocaine base). The district court
also applied a two-level enhancement to Mr. Davison’s
sentence for possession of a dangerous weapon in connec-
tion with a drug offense. See id. § 2D1.1(b)(1). The final
offense level of 40, taken together with Mr. Davison’s
criminal history category, yielded a sentencing range of 292
to 365 months. The district court sentenced Mr. Davison to
360 months’ imprisonment, to consist of two 180-month
terms of imprisonment running consecutively.
As with his codefendants’ sentences, we must conclude
that Mr. Davison’s sentence fulfills the first two prongs of
plain error because the district court’s sentence was based
on facts neither admitted by Mr. Davison nor proven to the
jury beyond a reasonable doubt and because the court sen-
tenced him believing that the guidelines were mandatory.
Nos. 03-3780, 03-3764 & 03-3884 27
We order a limited remand, while retaining jurisdiction, for
proceedings consistent with our decision in Paladino.
The district court found for sentencing purposes that
Mr. Davison was a member of the conspiracy despite the
fact that the jury acquitted him on the conspiracy charge. In
United States v. Watts, 519 U.S. 148 (1997), the Court held
that a court is permitted to consider a broad range of
information for sentencing purposes, including conduct
related to charges of which the defendant was acquitted. See
id. at 152-55. The Court based its holding, in part, on 18
U.S.C. § 3661 (“No limitation shall be placed on the informa-
tion concerning the background, character, and conduct of
a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing
an appropriate sentence.”), see Watts, 519 U.S. at 151, and
also on the notion that “different standards of proof . . .
govern at trial and sentencing,” id. at 155.
We join all the other courts that have confronted the issue
in holding that the Supreme Court’s holding in Watts re-
7
mains the law after Booker. See Booker, 125 S. Ct. at 754-55
7
Other circuits similarly have concluded that Watts continues to
apply after Booker. See, e.g., United States v. Magallanez, 408 F.3d
672, 684 (10th Cir. 2005) (holding that Watts, along with 18 U.S.C.
§ 3661, “remains in full force” after Booker); United States v.
Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (noting that, after
Booker, “sentencing judges can continue to consider relevant
acquitted conduct when applying the Guidelines in an advisory
manner”) petition for cert. filed (U.S. July 20, 2005) (No. 05-5467).
Furthermore, overruling a precedent of the Supreme Court of the
United States is the province of the Supreme Court alone. See
State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s
(continued...)
28 Nos. 03-3780, 03-3764 & 03-3884
(remarking that “[n]one of our prior cases is inconsistent
with today’s holding” and specifically reviewing the hold-
ing of Watts); cf. id. at 760 (noting that preventing sentencing
court from finding facts relevant to sentencing “would
undermine the sentencing statute’s basic aim of ensuring
similar sentences for those who have committed similar
crimes in similar ways”).
Conclusion
For the foregoing reasons, we affirm the defendants’ con-
victions. While retaining jurisdiction, we remand this case
to the district court for proceedings consistent with this
opinion.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
7
(...continued)
prerogative alone to overrule one of its precedents.”).
USCA-02-C-0072—8-15-05