United States v. Cunningham, Herman ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1515, 05-1632 & 05-1633
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERMAN CUNNINGHAM, LARRY D.
WILLIAMS, SR., a/k/a “L,” and
DAVID HARDIN, a/k/a BIG DAVE,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 CR 191—Sarah Evans Barker, Judge.
____________
ARGUED JUNE 6, 2006—DECIDED AUGUST 29, 2006
____________
Before FLAUM, Chief Judge, and POSNER and KANNE,
Circuit Judges.
KANNE, Circuit Judge. After a jury trial, Herman
Cunningham, Larry Williams, and David Hardin were
convicted of conspiracy to commit various drug offenses
involving the distribution of heroin in Indianapolis, Indi-
ana. See 21 U.S.C. §§ 841(a)(1), 846, 860(a), 861(f). Hardin
was also convicted of possession with intent to distribute
2 Nos. 05-1515, 05-1632 & 05-1633
heroin and of being a felon in possession of a firearm.1 See
21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). Cunningham
was sentenced to life in prison; Williams and Hardin were
sentenced to 420 and 300 months’ imprisonment, respec-
tively. Over the defendants’ objection at trial, the govern-
ment recounted a litany of procedures of the local U.S.
Attorney’s office, the Office of the Attorney General, and the
Drug Enforcement Administration (“DEA”) utilized in
seeking court authorization for two telephone wiretaps. In
doing so, the government witness’s testimony suggested to
the jury that a panel of senior government lawyers in the
Office of the Attorney General in Washington, D.C. and
others in law enforcement were of the opinion that there
was probable cause to believe the defendants were indeed
engaging in criminal activity. The admission of this irrele-
vant evidence had the effect of improperly bolstering the
credibility of the government’s case in the eyes of the jury,
and the error was not harmless. Accordingly, we reverse
and remand.
I. HISTORY
On August 18, 2004, the government charged 17 defen-
dants in a second superceding indictment with conspiracy
to possess with intent to distribute heroin as well as
conspiracy to distribute it. The indictment contained 15
counts, and also included a separate section entitled
“Sentencing Allegations” aimed specifically at several of the
defendants.
This case began when Thomas Verhovshek, a doctoral
student at Indiana University-Bloomington, was arrested
for possessing heroin in June 2003. He agreed to cooperate
1
Hardin was acquitted of possessing a firearm in furtherance of a
drug-trafficking crime. See 18 U.S.C. § 924(c)(1).
Nos. 05-1515, 05-1632 & 05-1633 3
with the DEA, and he later conducted several controlled
purchases of heroin from Sharon Grundy, his source in
Indianapolis. As the evidence at trial indicated, Grundy’s
supplier was defendant David Hardin. Upon learning this,
the DEA and the U.S. Attorney’s Office for the Southern
District of Indiana sought and received court authoriza-
tion for a wiretap on Hardin’s cellular telephone, pursu-
ant to Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510 et seq. (“Title III”).
From the wiretap, the DEA learned that Hardin’s sup-
plier was defendant Larry Williams. The DEA and the local
U.S. Attorney then sought and received court authorization
for a wiretap on Williams’s telephone, again pursuant to
Title III. After further investigation, the DEA determined
that Williams’s supplier was defendant Herman
Cunningham in Chicago.2
At trial, the government sought to introduce the record-
ings of the intercepted telephone calls though the testimony
of DEA Special Agent Gerald Dooley. The government
elicited from Dooley the application process followed by
certain government agencies prior to seeking court authori-
zation. Because of the importance of Dooley’s testimony to
this appeal, we recount the relevant portions of it here
(hereinafter, the “Title III evidence”):
Q: After the use of all of these techniques, did you
reach a conclusion as to an investigative techniques
which you thought should be employed?
A: Yes, we did.
Q: And what was technique?
2
Although for simplicity’s sake we refer to Williams as Hardin’s
supplier and Cunningham as Williams’s supplier, the government
introduced evidence that their respective relationships were more
than that of buyer and seller.
4 Nos. 05-1515, 05-1632 & 05-1633
A: A title 3 electronic surveillance, or what’s
commonly known as a wire tap.
Q: Now was the next thing you did basically was
push a button and start listening to phone calls?
A: No, sir, it was not.
Q: What steps, if any, did you take to get authority
to wire tap a telephone in this case?
A: In order to initiate an electronic surveillance, or
a wire tap, there are many levels of approval that
have to be gained in order to initiate an electronic
surveillance or wire tap. Starts by the agent’s
writing a very extensive affidavit outlining all the
probable cause as to the particular device or cell
phone that you wish to monitor or wire tap.
Q: In that affidavit did you detail all the evidence
regarding the controlled buys?
A: Yes, we did.
Q: And did you detail all the other law enforcement
techniques which you had attempted?
A: Yes.
Q: And is it your understanding that you’re re-
quired to at least consider, or attempt all those
other law enforcement techniques prior to applying
for a wire tap?
A: Yes.
Q: And did you prepare such an affidavit?
A: Yes, I did.
Q: And was it provided to the United States Attor-
ney’s Office here?
A: Yes, it was.
Nos. 05-1515, 05-1632 & 05-1633 5
Q: Are you familiar with where the affidavit goes
from the United States Attorney’s Office here?
A: Generally, yes, I am.
Q: Where does it go?
A: Once the United States Attorney’s Office here
has reviewed the affidavit and approved it at their
level, it is then sent by the United States Attorney’s
office here in the Southern District of Indiana to
the Attorney General’s office in Washington D.C.
where it is my understanding there are essentially
a panel of attorneys that work for the Attorney
General’s Office who again serve as another level of
review—
[HARDIN’S ATTORNEY]: Objection. This is
hearsay and also brings in an opinion from some-
body outside the court, namely the attorney’s office.
THE COURT: Overruled. He is testifying to the
process as he understands it. You can cross-exam-
ine.
A: As I was saying, the Attorney General’s Office in
Washington D.C. then reviews and approves the
affidavit and all the probable cause within the
affidavit. Once they have approved it, it is sent back
to the U.S. Attorney’s Office here. Once it is re-
ceived here at the U.S. Attorney’s Office, a United
States District Court Judge then reads–
Q: Well, let me stop you there. Is there a similar
approval system that you have to go through with
your agency, the Drug Enforcement Administra-
tion?
A: Yes, there is.
Q: And what is that process?
6 Nos. 05-1515, 05-1632 & 05-1633
A: Essentially when an affidavit is completed by
our office a section of the affidavit deals with prior
applications for the particular device that you are
attempting to gain permission to do the wire tap.
We have to send through our DEA channels to our
higher headquarters in Washington D.C. to ensure
that there have been no other applications made for
that particular device or for the individuals associ-
ated in the affidavit or named in the affidavit as
interceptees. Then we receive the approval from our
DEA in our headquarters that that affidavit as far
as DEA is concerned there’s not a duplicitive effort,
there’s not some other agency or some other part of
DEA that’s trying to do the same investigation.
Q: Did there come a time when you asked the
United States District Court in this district to
approve your request for a wire tap?
A: Yes.
Q: And did you ask the district court in an applica-
tion to supervise that wire tap?
A: Yes.
Q: How does the district court to your understand-
ing supervise–or how did the district court super-
vise your wire tap?
A: Essentially once the District Court Judge
approves and signs the affidavit, the affidavit is
then sent to the cellular service provider. The
cellular service provider then begins transmitting
the content of all the calls to us at the federal
building, wherever the intercept is set up.
The District Court Judge every ten days reviews
the number of calls that have been intercepted, the
number of calls that have been flagged as pertinent
or drug related, the number of calls that have been
Nos. 05-1515, 05-1632 & 05-1633 7
flagged as nonpertinent or nondrug related as well
as the number of calls that have been minimized by
the persons that are monitoring the wire tap.
The government later elicited testimony regarding the
second wiretap:
Q: Did you receive authorization from the district
court to intercept telephone calls occurring over the
telephone using telephone number [XXX-XXX-
XXXX]?
A: Yes, we did.
Q: And you detailed a number of steps you
took—I’m not going to have you repeat those. Did
you take those same steps with regard to this
phone?
A: Yes, we did.
The defendants appeal the admission of this testimony
relating to procedures used to obtain the Title III authoriza-
tions.3
II. ANALYSIS
The defendants objected to the admission of the testimony
regarding the application process that was followed in
garnering the district court’s Title III wiretap authoriza-
tions. The district court’s evidentiary decisions are reviewed
for an abuse of discretion. United States v. Owens, 424 F.3d
3
The defendants also appeal the inclusion of the Sentencing
Allegations in the indictment and Williams appeals the denial
of his request to represent himself as well. Because of our
disposition of this case, we do not reach either the denial of the
defendants’ motion to strike the Sentencing Allegations or the
denial of Williams’s request to proceed pro se.
8 Nos. 05-1515, 05-1632 & 05-1633
649, 653 (7th Cir. 2005); United States v. Souffront, 338
F.3d 809, 825 (7th Cir. 2003).
We note that Hardin’s attorney, and thus all three
defendants, timely objected.4 The attorney stated, “Objec-
tion. This is hearsay and also brings in an opinion from
somebody outside the court, namely the attorney’s office.”
The judge responded, “Overruled. He is testifying to the
process as he understands it. You can cross-examine.” We
understand from the wording (“This . . . brings in an opinion
from somebody outside the court, namely the attorney’s
office.”) and the timing of the objection that it was based not
only on hearsay, but also on relevance. The government
does not dispute that the objection was based on both of
these grounds.
It is apparent that the Title III evidence was not relevant
in this case. Moreover, Judge Barker’s ruling addressed
only the hearsay objection–not the relevancy objection. The
procedures used and the opinions obtained in gaining
authority for use of the wiretaps were wholly unrelated to
the defendants’ guilt or innocence–and not necessary to be
established to prove the case against the defendants. See
Fed. R. Evid. 401 (“ ‘Relevant evidence’ means 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.”), 402 (“Evidence which is not relevant is not
admissible.”).
The obvious purpose of the evidence was to show the jury
there were several senior government attorneys and agents
who all believed there was probable cause that the defen-
4
Pursuant to an agreement between the attorneys and the court,
an objection by one defense attorney would be deemed attributed
to all three defense attorneys, unless an attorney specifically
opted-out of the objection. When Hardin’s attorney objected, the
other two defense attorneys did not opt out.
Nos. 05-1515, 05-1632 & 05-1633 9
dants were involved in a drug conspiracy, and, indirectly,
that they all believed, in their professional judgment, the
defendants were in fact committing drug-related crimes.
As the defendants see things, and we agree, the jury
was infected by the opinions of these unnamed govern-
ment attorneys and agents. The government witness was
improperly vouching for how good the evidence was.5
Furthermore, the various procedures (i.e., safeguards) that
were detailed served only to bolster the credibility of the
unnamed attorneys’ and agents’ respective determinations.
Without a limiting instruction, the jury was free to
consider this evidence in making its determination regard-
ing the defendants’ guilt or innocence. In short, the govern-
ment piled on needless, unfairly prejudicial evidence that
may have affected the jury’s judgment, and this error was
not harmless. See United States v. Brown, 692 F.2d 345, 350
(5th Cir. 1982) (finding it was “clearly error” for the district
court to admit the wiretap authorization into evidence as
foundation evidence and explaining that “the content of the
order was neither relevant nor probative to the jury’s task
of evaluating the actual wire-tap conversations”);6 cf. People
v. Okundaye, 545 N.E.2d 505, 513 (Ill. App. Ct. 1989)
(reversing criminal conviction because “the highly prejudi-
cial and irrelevant evidence of the facts and circumstances
surrounding the acquisition of probable cause and the
issuance of the search warrant was clearly inadmissible”).
The government advances several short (and cursory)
arguments to contend that the Title III evidence was
relevant. We will address each one in turn.
5
The government conceded at oral argument that this is
“certainly one inference that could be drawn.”
6
Although the court in Brown found the error to be harmless, we
are confronted with more evidence than just the court’s authoriza-
tion. Dooley’s testimony inflicted damage that was
more substantial than that in Brown.
10 Nos. 05-1515, 05-1632 & 05-1633
First, the government argues “the process became
relevant foundation for the admission of the conversations.”
The only legal support the government offers is a citation to
18 U.S.C. § 2515, which is a codified exclusionary rule that
sets a legal standard for the judge—not a jury—to evaluate.
See Fed. R. Evid. 104(a).
The government did not cite to any cases in support of its
position–because the government’s position is not the law
in this circuit. In admitting tape recordings, “[t]he Govern-
ment must prove, by clear and convincing evidence, that the
proffered tape is a true, accurate and authentic recording of
the conversation between the parties.” United States v.
Westmoreland, 312 F.3d 302, 311 (7th Cir. 2002) (citing
Smith v. Chicago, 242 F.3d 737, 741 (7th Cir. 2001)). “[T]he
Government may meet this burden by establishing the
tape’s chain of custody or by establishing otherwise a
foundation as to the trustworthiness and accuracy of the
evidence.” Id.There is no authority indicating that the legality in
obtaining the recording falls within the rubric of “true,
accurate and authentic.” In other words, the government
does not have to prove that the electronic recording of the
conversation was properly authorized by a judge to estab-
lish the recording was “true, accurate and authentic.”
Nor does § 2515 support the government’s argument. For
our purposes here, § 2515 states that an intercepted wire
communication may not be received in evidence if its
disclosure would violate Title III. This statute does not
require the government to prove it obtained the evidence
lawfully prior to seeking its admission (unless, of course, a
defendant objects on that ground). In this case, the defen-
dants’ objection to the foundation information describing
how the wiretap intercepts were authorized was based on
hearsay and relevancy grounds, not on the legality of the
wire intercepts; therefore, § 2515 is inapplicable in this
context.
Nos. 05-1515, 05-1632 & 05-1633 11
Second, the government argues, “[T]he legality of a
warrant is always relevant,” citing United States v. Bu-
chanan, 529 F.2d 1148, 1151 (7th Cir. 1975). Although this
argument is only one sentence long and is undeveloped, it
touches on a case dealing with the matter at issue here. In
Buchanan, the government elicited from its witness the fact
that two search warrants had been obtained prior to the
search of the defendant’s post office box and home. On
appeal, the defendant argued the admission of the search
warrant testimony was irrelevant because the warrants
were not in controversy, and we stated, “The legality of the
search is always relevant.” Id. But we do not read Bu-
chanan so broadly as to allow the inclusion of the Title III
evidence in this case. It is one thing for a government
witness, when telling his story to the jury, to say a search
warrant had been obtained, and then the search was made.
Although arguably not technically relevant, the information
is simply part of the witness’s story. It is quite another
thing for a government witness to indicate not only that
court authorization for the wiretap had been obtained, but
to go on about how various other law enforcement personnel
believed there was probable cause to obtain the authoriza-
tion, and to describe the procedures followed in seeking the
authorization. Furthermore, in Buchanan, we stated the
warrant evidence “was not prejudicial to the defendant’s
case,” id., easily distinguishing Buchanan from this case.
Also, in Buchanan, we did not say what issue the testi-
mony was relevant to. Here, the Title III evidence was only
relevant to demonstrate that there were several govern-
ment officials who believed there was probable cause to
obtain the authorization. This is clearly an issue that
should be left for resolution of a motion to suppress deter-
mining whether § 2515 was adhered to. In this case, the
judge did address the wiretap evidence when she ruled on
Hardin’s motion to suppress prior to trial; the issue was
then moot at trial, and therefore irrelevant.
12 Nos. 05-1515, 05-1632 & 05-1633
The government’s third argument is as follows: “[W]ithout
the testimony from Special Agent Dooley regarding the
application process, the jury would have been left to
speculate as to the legality of the wiretaps.” Why would
they be speculating at all regarding the legality of the
wiretaps? It is not within the purview of the jury to be
deciding questions of law, particularly ones involv-
ing wiretap authorizations. This type of issue must be
resolved by the judge, not the jury.
In countless cases, including this one, such an issue is
dealt with by the district judge when ruling on a motion
to suppress, typically argued prior to trial and always
outside the presence of the jury. Such a procedure was
followed here, and Hardin’s motion to suppress was denied.
The government points to nothing whatsoever in the record
to suggest why the jury would be speculating about this
issue.7 There is no mention of any witness testimony or any
argument by a defense attorney made prior to Dooley’s
testimony that would necessitate the government to clarify
the legality of the authorization by describing, in detail, the
procedures followed by the local U.S. Attorney’s office, the
Office of the Attorney General, and the DEA. The bottom
line is the defense attorneys did not object to the admission
of the recordings on the ground that they were illegally
obtained. And why would they, given that the motion to
suppress had been denied prior to trial? In such a situation,
7
It may be, that given the heightened media attention in recent
years regarding the legality of government wiretaps–much of
it negative—the government was motivated to show the jury
that this wiretap evidence was lawfully obtained. At oral argu-
ment, the government was asked whether “[t]here was argument
that the tapes were somehow improperly obtained?” The govern-
ment responded, “No, there was no argument to that nature. None
whatsoever.” Later, the government tellingly stated, “There was
no specific criticism of the government getting a wiretap in this
case.”
Nos. 05-1515, 05-1632 & 05-1633 13
the government had no business introducing the Title III
evidence, given no instigation by the defense.
A few pages later in its brief, the government makes its
last argument that, at first blush, gives the impression that
it was Hardin’s attorney who first introduced the Title III
evidence. For example, the government argues, “As the
evidence with respect to out of court probable cause opin-
ions was elicited by Hardin’s lawyer to demonstrate Dooley’s
alleged bias . . . .” (Emphasis added). But the argument is
inapposite: In support of its argument, the government cites
(only) to portions of Dooley’s testimony that was given a full
15 days after the government introduced the Title III
evidence. Therefore, it is clear Hardin’s attorney wasn’t
eliciting the “out of court probable cause opinion”; they had
been elicited 15 days earlier by the government.
Taking a closer look at the government’s carefully crafted
argument, it appears that the government was attempting
an estoppel argument (again, without any legal support or
citations). The government was arguing the defendants
could not complain on appeal about the admission of the
Title III evidence since Hardin’s attorney used that evi-
dence during cross-examination to demonstrate Dooley’s
bias. The argument is of no merit. The damage from the
Title III evidence had already been done; Hardin’s attorney
was only making the best of an already bad situation. In
fact, Hardin’s attorney was only following Judge Barker’s
advice, when she stated, “You can cross-examine” in
response to the defendants’ original objection 15 days
earlier.
III. CONCLUSION
The government has not advanced a valid reason for the
admission of the testimony relating to the procedures used
to obtain the Title III authorizations. This evidence inap-
propriately strengthened the government’s case and was
14 Nos. 05-1515, 05-1632 & 05-1633
unfairly prejudicial to the defendants. Therefore, the
defendants are entitled to a new trial free of this error. The
defendants’ convictions are REVERSED, and the case
is REMANDED for a new trial.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-29-06