United States v. Smith, Robert ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4146
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT SMITH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 463—Ruben Castillo, Judge.
____________
ARGUED JANUARY 8, 2007—DECIDED SEPTEMBER 17, 2007
____________
Before EASTERBROOK, Chief Judge, and ROVNER and
WOOD, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Robert Smith
of (1) possessing an unregistered explosive device, see 26
U.S.C. § 5861(d); (2) constructing a destructive device
without paying taxes, see 26 U.S.C. § 5861(f); (3) attempt-
ing to use an explosive device to destroy a place of busi-
ness, see 18 U.S.C. § 844(i); and (4) carrying a pipe bomb
while committing a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A). The district court sentenced him to con-
current 120-month terms of imprisonment on the first
three counts and to a 30-year term on the fourth count to
run consecutively to the 120-month terms. Smith now
challenges various rulings of the district court, arguing
2 No. 05-4146
that the cumulative effect of what he believes are errors
tainted the jury. Smith also argues that application of the
30-year mandatory consecutive sentence for using a pipe
bomb constitutes cruel and unusual punishment and
violates his Fifth Amendment right to be put in jeopardy
only once for the same offense. We affirm.
I.
On the morning of July 3, 2003, the office manager at
an Allstate insurance agency in Crest Hill, Illinois, found
a box outside of the agency. The Federal Express label on
the box was addressed to Leo Bick, the agency’s owner
and the boyfriend of Smith’s former girlfriend. The office
manager brought the box inside and, later that morning
when Bick arrived at work, he opened it. He heard a snap,
saw wires hanging from the box, and pulled a bottle of
gasoline out of the box. Fearing that the package contained
an explosive device, he carried it and the bottle of gasoline
outside and called the police. Members of the DuPage
County Bomb Squad inspected the package, x-rayed it,
determined that it contained a pipe bomb, and deactivated
the bomb.
The bomb was comprised of a steel pipe held together
by two end caps with a metal rod connecting the end caps.
Inside of the pipe was a plastic bag containing various
types of explosive powder and an igniter. A thumb print,
later identified as Smith’s, was found on the plastic bag. A
set of wires linked the igniter to a mousetrap which in
turn was connected to two batteries. The mousetrap
was set to close onto a copper plate when the box was
opened, completing a circuit and triggering an explosion.
The bomb also contained various forms of shrapnel in-
cluding shotgun shell primers, construction staples, roof-
ing nails, and lead shot. A bottle of gasoline was inside the
box next to the bomb. The components were held together
No. 05-4146 3
with tape, on which a single human hair, later discovered
to match Smith’s, was found. After a year-long investiga-
tion that involved local police and the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, Smith was arrested
and charged with constructing, possessing, and attempt-
ing to use an explosive device.
The district court appointed a fingerprint expert to
assist in Smith’s defense. The expert reviewed the finger-
print evidence acquired during the investigation and
concurred with the government that the print found on a
plastic bag inside the pipe bomb was Smith’s. The defense
moved to require the government to give the defense
expert access to the bomb components and packaging
for further testing and requested that the government
provide fingerprint exemplars for the investigating officers
and potential suspects. At a hearing on Smith’s motion,
the government asserted that there were no fingerprints
found on the bomb components or packaging, other than
the thumb print found on the plastic bag. Because the
Federal Express label on the package had not yet been
tested, the government agreed to test it. At Smith’s
request, the government also agreed to reexamine the
rest of the evidence to ensure that no new prints had
become visible. The district court then denied Smith’s
motion without prejudice because there were no finger-
prints for the expert to examine, but indicated that it
would be willing to revisit its decision if further finger-
prints were found. Three fingerprints that did not match
Smith’s were later found on the Federal Express label, but
Smith did not renew his motion.
At Smith’s jury trial, the government presented scientific
and circumstantial evidence linking Smith to the bomb. A
fingerprint expert testified that Smith’s thumb print
was found on a plastic bag containing explosive powder
inside of the bomb, a conclusion that Smith did not
contest. Another expert testified that the mitochondrial
4 No. 05-4146
DNA in the hair stuck to the tape that held the bomb
together matched Smith’s DNA, and Smith did not argue
that this conclusion was incorrect. The government’s
evidence also showed that Smith rented a post office box
at the post office where the Federal Express label on the
box originated. A retired agent from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives testified that after
Smith was arrested, he admitted that he had handled the
type of mousetrap that was used in the bomb. Additionally,
some of the shotgun shell primers in the bomb, which
according to the government’s witness had not been made
since the 1950s, matched primers in shotgun shells
found at Smith’s house.
The evidence also showed that Smith and Bick loathed
each other. The acrimony seems to have begun after Bick
began dating Smith’s ex-girlfriend, Lisa Kehr. Witnesses
for both the government and the defense testified that
Smith and Bick engaged in multiple verbal confrontations,
and Bick testified that Smith once punched him. Govern-
ment witnesses testified that Smith threatened to “break”
Bick “financially and physically” and once referred to
Bick as “a dead man.” Over Smith’s objection, the govern-
ment introduced a photograph, taken by Bick, of Smith
making an obscene gesture directed at Bick. Smith later
testified that he made the gesture only in response to an
obscene gesture made by Bick.
The government elicited the testimony of an explosives
expert, who first described how the bomb was constructed.
The expert analyzed the pieces of the dismantled pipe
bomb and built a model to show what the fully con-
structed bomb looked like. Using the model, he then
performed a brief demonstration, to which Smith’s attor-
ney objected, to illustrate how the bomb was intended to
function. He also opined that the intended explosion did
not occur because either there was a flaw in the electrical
connection or a short in the igniter. He concluded that the
No. 05-4146 5
bomb was designed to maim and kill bystanders and to
destroy property.
Smith elected to testify and denied having anything to
do with the bomb. On cross-examination, the govern-
ment used two letters to impeach his credibility. The first
letter was written by Smith, while he was in pre-trial
detention, to Robert Ishmael, Smith’s friend and former
boss. Smith testified that he told the ATF agent who
questioned him that he had never handled the type of
mousetrap used in the bomb. In the letter, Smith wrote
that he told the ATF agent that he did not remember
whether or not he handled the mousetraps. Smith ad-
dressed the letter to “ATTNY Robert Ishmael,” however
Ishmael is not an attorney, and, although Ishmael is a
private investigator, he was not retained by Smith’s law-
yer to work on Smith’s behalf. At trial, Smith’s attorney
did not object to the government’s use of the letter and
stated that he did not believe that it was privileged under
the work-product doctrine.
The government also impeached Smith with a letter
he wrote, but did not mail, to Kehr. Smith had testified
that, at the time of the attempted bombing, he no longer
had feelings for Kehr, but, in the letter, dated about two
months prior to the incident, he wrote, “My heart will
always be with you” and “I will remember your intimate
words every day.” The government did not turn the
letter over to the defense during discovery, but Smith’s
attorney did not object to the government’s use of the
letter at trial. At a post-trial hearing, Smith’s attorney
indicated that he chose not to object because he believed
that the letter was helpful to the defense.
Ultimately, the jury convicted Smith on all four counts,
and the judge sentenced him to three concurrent 120-
month sentences and a statutorily-mandated 30-year
sentence to run consecutive to the 120-month sentences.
6 No. 05-4146
II.
On appeal Smith argues that the district court erred
in (1) denying his motion to allow his fingerprint expert
access to evidence and to require the government to
provide fingerprint exemplars of individuals related to
the investigation; (2) admitting the photo of Smith mak-
ing an obscene gesture; (3) allowing the government’s
expert to use a model to demonstrate how the actual bomb
was intended to function; (4) permitting the government
to impeach Smith with a letter that Smith wrote to his
friend; and (5) permitting the government to impeach
Smith with the letter he wrote but did not send to Kehr.
Smith also contends that the cumulative effect of these
errors tainted the jury’s verdict. We address each issue
in turn.
A. Smith’s Fingerprint Expert
Smith first argues that the district court erred in
denying his motion seeking fingerprint exemplars of the
investigators and potential suspects and requesting
access to the bomb components. He contends that the
presence of only a single thumb print on the plastic bag
is inconsistent with the way that a person holds a plastic
bag and thus indicates that someone might have planted
this evidence to frame him. He asserts that access to the
bomb components and exemplars was necessary to help
him advance his theory and that the district court’s rul-
ing effectively denied him access to a fingerprint expert.
We review for abuse of discretion a district court’s denial
of a defendant’s request for expert services. See United
States v. King, 356 F.3d 774, 778 (7th Cir. 2004). The
government will give an indigent defendant access to
expert services adequate to facilitate the defendant’s
representation if the court finds that the services are
No. 05-4146 7
necessary. See 18 U.S.C. § 3006A(e)(1). Expert services
should be provided where “a reasonable attorney would
engage such services for a client having the independent
financial means to pay for them.” United States v. Cravens,
275 F.3d 637, 639 (7th Cir. 2001) (quoting United States v.
Alden, 767 F.2d 314, 318 (7th Cir. 1984)). However, when
a defendant requests the assistance of an expert, the
district court may consider whether the defendant has
a “plausible defense” before granting the request. See
King, 356 F.3d at 778; Cravens, 275 F.3d at 639. And the
district court need not order expert assistance if doing
so amounts to a “fishing expedition.” See King, 356 F.3d
at 778.
Here, Smith received access to an adequate fingerprint
expert. The district court appointed a fingerprint expert
to assist in Smith’s defense. The expert examined the
thumb print found on the plastic bag inside of the bomb
and concluded the print was Smith’s. At the time Smith
made his motion seeking access to the bomb components
and fingerprint exemplars, no other usable fingerprints
had been found. Thus, there was nothing against which to
compare the requested exemplars and no reason for the
expert to examine evidence that did not contain finger-
prints. It was within the district court’s discretion to
conclude that Smith’s request was “too far afield in terms
of establishing any type of potential defense” and to deny
the motion without prejudice. After three fingerprints
that were not Smith’s were later found on the package’s
label, Smith could have renewed his motion. But, for
reasons that are unclear, he chose not to do so. Smith also
claims that he wanted to argue that it is illogical that
only one print was found on the plastic bag. However, he
could have called his expert to testify to this theory even
without access to the bomb components and finger print
exemplars; but he did not. The district court did not deny
Smith access to a fingerprint expert, effectively or other-
8 No. 05-4146
wise, nor did it deny him the opportunity to renew his
motion when new fingerprints were discovered. Therefore,
Smith has not shown that he was prejudiced by the dis-
trict court’s denial of his motion.
B. Admission of the Photograph
Smith next challenges the admission of a photograph
taken by Bick that shows Smith making an obscene
gesture. He asserts that the probative value of the photo-
graph was low because it provided the jury no new infor-
mation about Smith and Bick’s relationship and that it
was highly prejudicial because it could lead the jury to
believe that Smith instigated the conflict between the two.
He concludes that the district court should have kept
the photograph from the jury.
A district court may exclude otherwise admissible
evidence if its probative value is substantially outweighed
by its prejudicial impact. Fed. R. Evid. 403; United States
v. Chavis, 429 F.3d 662, 670 (7th Cir. 2005). But the
district court has wide latitude in making this determina-
tion. See United States v. Strong, 485 F.3d 985, 991 (7th
Cir. 2007). Because Smith objected at trial to the admis-
sion of the photograph, we review the district court’s
decision for abuse of discretion, see Chavis, 429 F.3d at
667, and will reverse only if no reasonable person could
agree with the district court’s conclusion. See United
States v. Cash, 394 F.3d 560, 564 (7th Cir. 2005).
The district court’s decision to admit the photograph
was well within its discretion. The photograph was
relevant because it demonstrated the nature of the rela-
tionship between Smith and Bick. It corroborated witness
testimony that they were hostile towards each other and
revealed that Smith might have had a motive to harm
Bick. And the photograph was not unduly prejudicial to
No. 05-4146 9
Smith because other evidence at trial showed that Smith
and Bick had an acrimonious relationship. Government
and defense witnesses testified that the two engaged in
screaming matches, that Smith once punched Bick, and
that Smith threatened to harm Bick “physically and
financially.” When viewed against the backdrop of the
other evidence of animosity between Bick and Smith, the
photograph did not reveal anything about Smith that the
jury did not already know and therefore was not inflamma-
tory. See United States v. Allen, 390 F.3d 944, 950 (7th Cir.
2004) (photograph depicting the defendant in police
custody not unduly prejudicial because jury already knew
defendant had been in custody). Furthermore, Smith had
an opportunity to put the photograph into context for
the jury, ameliorating any prejudicial effect. He testified
that he was only responding to a similar gesture made
by Bick. Thus, the photograph did not unfairly bias the
jury against Smith.
C. Explosives Expert
Smith next challenges some of the testimony of the
government’s explosives expert. He concedes that the
expert’s conclusions were admissible under Federal
Rule of Evidence 702, but argues that portions of the
expert’s presentation were unduly prejudicial and should
have been disallowed. Specifically, Smith takes issue
with the expert’s use of a replica of the pipe bomb in a
demonstration to show the jury how the bomb was in-
tended to function. He argues that the expert’s demonstra-
tion confused the jury by conflating a hypothetical pipe
bomb with the actual pipe bomb and prejudiced the jury
by giving undue weight to the government’s theory that
the bomb was intended to detonate.
Smith objected to portions of the expert’s testimony at
trial, so we review for abuse of discretion the court’s
10 No. 05-4146
decision to allow the testimony. See United States v. Davis,
471 F.3d 783, 788 (7th Cir. 2006).
The explosives expert first testified about how pipe
bombs function generally and then described the compo-
nents of the particular pipe bomb used. He expressed his
opinion that the bomb was intended to explode and that
an unintended glitch—likely a flaw in the electrical
connection or a short in the igniter—caused it to malfunc-
tion. He described how he assembled a model of the
bomb and then used the model to demonstrate how the
actual bomb was intended to function. The demonstration
caused a small flash, which showed how the bomb would
have ignited. The judge made clear to the jury that the
actual bomb did not explode—a fact that the jury had
already heard many times during earlier testimony.
The district court properly allowed the expert’s demon-
stration. The testimony was relevant because it was
necessary to help the government meet its burden to prove
that Smith attempted to use a bomb with intent to cause
harm. See Chavis, 429 F.3d at 671. Evidence that is
probative of an element of the offense should be admitted
in all but the most egregious cases. See United States v.
Kapp, 419 F.3d 666, 677 (7th Cir. 2005). The expert’s
testimony was important evidence that the bomb was
designed to detonate and probative of the government’s
theory of the case. The government also was entitled to
use its expert to counter Smith’s theory that the bomb
was designed specifically not to explode. See United States
v. Glover, 479 F.3d 511, 518 (7th Cir. 2007).
And there was no undue prejudice to Smith. The expert’s
demonstration was not presented in an inflammatory way
to incite the emotions of the jury. See Kapp, 419 F.3d
at 677. And it is unlikely that the jury was confused,
because it heard testimony that the actual bomb did not
explode and the judge reminded the jury of this during
No. 05-4146 11
the expert’s testimony. See United States v. Kuzlik, 468
F.3d 972, 974-75 (7th Cir. 2006). The record also reveals
that the demonstration involved a replica of the actual
bomb, not, as Smith suggests in his brief, of a hypothet-
ical pipe bomb, and we find no indication that the
jury could have been confused. To be sure, the expert’s
testimony conflicted with Smith’s defense theory that the
bomb was not intended to explode, but Smith was free
to cross-examine the expert, which he did, see Glover, 479
F.3d at 517, or to call his own expert.
The two cases cited by Smith are inapposite. In both,
expert testimony was excluded because it was not in line
with the proponent’s theory of the case and was emotional
and confusing to the jury. See Finchum v. Ford Motor Co.,
57 F.3d 526, 530 (7th Cir. 1995) (demonstration show-
ing car seat crash tests performed under conditions unlike
those in actual accident); United States v. Gaskell, 985
F.2d 1056, 1061 (11th Cir. 1993) (demonstration involv-
ing shaking a doll was not similar to defendant’s alleged
actions). Here, by contrast, the expert’s demonstration
tracked the government’s theory of the case—that the
bomb was built to explode—and there is nothing to
indicate that the demonstration incited the jurors’ emo-
tions or caused confusion.
D. Letter to Ishmael
Smith next argues that the district court should not have
allowed the government to impeach him with a letter that
he wrote to his friend Robert Ishmael, because, Smith
contends, this letter is privileged under the work-product
doctrine. The government argues that we cannot consider
this argument on appeal because Smith waived his
right to raise it by knowingly failing to object in the dis-
trict court.
12 No. 05-4146
When a defendant fails to object to a district court’s
ruling, we generally say that he has forfeited the argu-
ment, and we will review the ruling for plain error. See
United States v. Williams, 258 F.3d 669, 672 (7th Cir.
2001). However, when a defendant or his attorney makes
a purposeful decision not to object, rather than carelessly
or negligently failing to object, the defendant has waived
his right to contest the issue on appeal, and we are
precluded from reviewing the district court’s decision. See
United States v. Murry, 395 F.3d 712, 717 (7th Cir. 2005);
United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001).
And an attorney who affirmatively states that he has
no objection to admission of evidence waives the right to
argue to the contrary. See United States v. Redditt, 381
F.3d 597, 602 (7th Cir. 2004).
Before trial, Smith’s counsel described to the court in
general terms the content of the letters Smith wrote to
Ishmael and explained, “I’ve thought a lot about it, and I’m
not sure that privilege attaches here.” He then concluded,
“I suppose that if Mr. Smith were to testify that we’d need
to revisit this. But I don’t plan on any kind of formal
objection at this point.” After opening statements, outside
the hearing of the jury, Smith’s counsel agreed with the
government’s attorney that “I don’t see that there is a
privilege either.” When the letter was used to impeach
Smith, defense counsel raised no objection. From defense
counsel’s comments, it appears that he considered whether
to argue that the letter was privileged and made an
affirmative decision not to do so. He did not carelessly or
accidentally fail to raise an objection, rather, he intention-
ally chose to forego the argument. Thus, it has been
waived, and we cannot revisit the district court’s decision
to allow the government to use the letter to impeach
Smith.
However, even absent the waiver, allowing the use of the
letter for impeachment purposes was proper because the
No. 05-4146 13
letter is not privileged work product. The work-product
privilege protects documents prepared by an attorney or
the attorney’s agent to analyze and prepare the client’s
case. See United States v. Nobles, 422 U.S. 225, 238-39
(1975); Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006).
It is not up to the client to determine whom to make an
agent for the purposes of asserting the work-product
privilege; the privilege extends to the work of the attor-
ney’s agents, not the client’s agents. See Nobles, 422 U.S.
at 238-39. Though Ishmael is a private investigator and
Smith wrote several letters to him detailing Smith’s
thoughts about his case and possible defense theories,
Smith’s counsel admitted to the district court that Ishmael
was not involved in any investigation related to Smith’s
defense and had not been retained to do any work for
the defense. The letters had nothing to do with Smith’s
legal representation and are not entitled to protection
under the work-product doctrine.
E. Letter to Kehr
Smith also objects to the district court’s decision to allow
the government to impeach him with a letter that he
wrote—but never sent—to Kehr. He argues that the
government failed to disclose this letter in violation of
Federal Rule of Criminal Procedure 16 and that the
district court should have prohibited the government
from using it at trial. Smith asserts that he was prej-
udiced by the use of the letter on cross-examination
because, had he known about the letter earlier, his counsel
would have asked him to explain it on direct examination,
reducing its prejudicial impact. The government argues
that its attorney maintained that he could not recall
whether he turned the letter over to the defense at trial,
and that, in any event, the district court’s decision to
allow it for impeachment purposes was not plainly errone-
ous.
14 No. 05-4146
Assuming that the letter was withheld, it is troubling
that this document was not provided to the defendant
until the government used it at trial in contravention of
Rule 16 of the Federal Rules of Criminal Procedure, but it
was not erroneous for the district court to allow it, because
Smith was not prejudiced. See United States v. Warren,
454 F.3d 752, 760-61 (7th Cir. 2006). A Rule 16 violation
prejudices a defendant only when he is unfairly surprised
by the evidence and cannot adequately prepare his defense
or when the violation has a substantial influence on the
jury. See United States v. Stevens, 380 F.3d 1021, 1026 (7th
Cir. 2004).
Smith testified on direct examination that he was no
longer emotionally attached to Kehr when the bombing
occurred. In the letter, dated May 12, 2003—less than two
months before the bombing—however, Smith indicated
otherwise. Smith argues that he wrote but did not send
the letter because his feelings towards Kehr changed, and
that he should have had the opportunity to explain this
on direct examination to minimize the impact of the
letter. But his counsel had the opportunity to elicit this
testimony on redirect and chose not to do so. And when
defense counsel finally raised an objection to the use of the
letter a month after trial, he admitted that at trial he
thought that the letter was helpful to Smith’s case. It is
hard to see how the use of a piece of evidence that both
the prosecution and defense believed supported their
theories constitutes error. Furthermore, there was ample
evidence besides the letter demonstrating that Smith had
a motive to hurt Bick. Smith has not shown that the
government’s use of this letter prejudiced him.
F. Cumulative Effect of Errors
Smith next argues that the district court’s cumulative
errors denied him the right to a fair trial. Although any
No. 05-4146 15
single error by itself may be insufficient to taint a jury, the
combined effect of multiple erroneous rulings may re-
sult in significant harm necessitating another trial. See
United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000).
But this argument also fails. As we have described above,
we can find no error in the district court’s decisions. The
court acted within its discretion, and Smith was not denied
the right to a fair trial. See United States v. Banks, 405
F.3d 559, 570 (7th Cir. 2005).
III.
Finally, Smith contends that his mandatory consecutive
30-year sentence for carrying a pipe bomb while commit-
ting a crime of violence is unconstitutional because (1) it is
cruel and unusual punishment prohibited under the
Eighth Amendment and (2) it violates the Fifth Amend-
ment prohibition on Double Jeopardy.
In support of his claim that his sentence violates the
Eighth Amendment, Smith argues that the sentence is
disproportionate to his crime. He contends that he received
his sentence not because Congress determined it was
appropriate, but because the prosecutor misused his
discretion. Smith reasons that, because his crime injured
no one, terrorism was not involved, and he does not have
a history of violence, the prosecutor should not have
charged him with a crime that carries such a severe
penalty. He thus urges this court to act as a check on the
prosecution’s charging decisions.
We will uphold long prison sentences if the district court
properly applied the relevant sentencing statute. See
United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir.
1998). Here, Congress has determined that a 30-year
sentence is an appropriate penalty for violent crimes
committed using explosives. See 18 U.S.C. § 924(c). The
16 No. 05-4146
district court noted that, “what was proven here was
an attempted murder in no uncertain terms.” Bringing a
pipe bomb to a place of business is a violent act and falls
within the range of offenses that Congress intended to
penalize severely, and the Eighth Amendment does not
prohibit the 30-year mandated sentence. See Arrington,
159 F.3d at 1073; see also Harmelin v. Michigan, 501 U.S.
957, 994-95 (1991) (life in prison for single drug crime
not cruel and unusual punishment). So Smith’s view that
his sentence is disproportionate to his crime is incorrect.
Smith’s argument that it was improper for the prosecu-
tor to charge him with a crime that carries such a stiff
penalty also lacks merit. Prosecutors always have discre-
tion to decide which charges to bring, and this discretion
extends to charges that carry enhanced statutory maxi-
mum penalties. See United States v. LaBonte, 520 U.S.
751, 762 (1997) (noting that prosecutorial discretion is
an “appropriate” and “integral feature of the criminal
justice system”). Further, the judiciary is not authorized
to second-guess a prosecutor’s decision to charge a par-
ticular crime unless the decision is made based on an
invidious ground, which Smith does not claim here. See
United States v. Roberson, 474 F.3d 432, 434 (7th Cir.
2007) (noting that it was improper for a district court
judge to criticize the prosecutor’s choice of charge).
Finally, Smith argues that his convictions under 18
U.S.C. § 844(i) and 18 U.S.C. § 924(c)(1)(A) punished him
twice for the same conduct and thus violated the Fifth
Amendment protection against Double Jeopardy. He
acknowledges correctly that this argument has been
rejected. A cumulative sentence does not run afoul of the
Double Jeopardy Clause when at a single trial a defendant
is convicted under two statutes and Congress has autho-
rized cumulative sentences for violations of those statutes.
See Missouri v. Hunter, 459 U.S. 359, 368-69 (1983);
United States v. Handford, 39 F.3d 731, 733-34 (7th Cir.
No. 05-4146 17
1994). Smith concedes that he raises this issue only to
preserve it for Supreme Court review, and it has been
preserved.
IV.
For the above reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-17-07