United States v. Anderson, Dexter ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-4113 & 04-4173
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEXTER ANDERSON, a/k/a DEK,
and VALENCIA Y. PARSONS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 261—William C. Griesbach, Judge.
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ARGUED SEPTEMBER 7, 2005—DECIDED JUNE 9, 2006
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Before CUDAHY, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. A jury found Dexter Anderson and
Valencia Parsons guilty of several charges stemming from
their involvement in a crack cocaine conspiracy operating in
Green Bay, Wisconsin. Both appeal, claiming that Sixth
Amendment and due process violations occurred during
trial. Anderson also challenges the probable cause for the
warrant used to search his Milwaukee apartment. We
affirm.
2 Nos. 04-4113 & 04-4173
I. Background
After receiving a tip from a confidential informant and
conducting some follow-up investigation of his own, Agent
Bernard Bolf of the Drug Enforcement Administration
(“DEA”) arranged a series of controlled drug buys in Green
Bay from two crack cocaine dealers known as “Dex” (or
“Deck” or “Derek Mitchell,” among other names) and
“Ebony.” Bolf believed “Dex” and “Ebony” to be Dexter
Anderson and Valencia Parsons. Each of the controlled buys
followed the same pattern. Renee Rogers, a crack user
cooperating with Bolf, would call Dex on his cell phone and
say she needed crack. Ebony would deliver the crack, each
time arriving in either a 1991 Pontiac Grand Am (registered
to Valencia Parsons) or a 2001 Chrysler Town & Country
minivan (registered to Dexter Anderson). Rogers would pay
Ebony with marked bills, and Ebony would give Rogers the
crack, which Rogers would then turn over to Agent Bolf.
After five controlled buys Bolf sought a search warrant for
Anderson’s Milwaukee apartment and Parsons’ Green Bay
residence. Though the buys took place in Green Bay, Bolf’s
investigation linked Anderson to the apartment in Milwau-
kee. Bolf also had evidence that Anderson orchestrated
some of his deals from Milwaukee. In addition, four other
informants working with Bolf said they called the same cell
phone number Rogers called during the controlled buys to
speak with a man named Dex about buying crack. One
informant identified Dex as Dexter Anderson; she estimated
she bought crack from him over 100 times. Another infor-
mant identified Valencia Parsons as Ebony and said that
Parsons told him to call “Dek” to buy crack; the same
informant said he knew Parsons sold crack for Anderson.
Phone records showed that shortly after Anderson received
calls from the informants, he called Parsons’ phone number.
Bolf got his warrant.
A search of both residences turned up incriminating
evidence. In Anderson’s Milwaukee apartment, officers
Nos. 04-4113 & 04-4173 3
found a cell phone matching the number that Renee Rogers
called during the controlled buys. The phone also showed
that in the hours before agents executed the warrant,
Anderson had called Parsons’ cell phone. Agents also found
over 61 grams of crack in false-bottom containers, $800 in
cash in another false-bottom container, two guns, and a
vehicle title sale for the 1991 Pontiac Grand Am. At Par-
sons’ Green Bay residence, agents found the cell phone
matching the number that Anderson had called, several
rocks of crack, a title and license application for the 1991
Pontiac Grand Am in Parsons’ name, and a key for the 2001
Chrysler van registered to Anderson. Agents also located
the van and recovered cocaine base from inside it.
Anderson and Parsons were charged with conspiracy to
distribute crack cocaine, possession with intent to distribute
crack cocaine, and distribution of crack cocaine. (Anderson
was also charged with being a felon in possession of fire-
arms, but that is unimportant to this appeal.) Agent Bolf
testified at trial about his conversations with informants,
and most of the informants also testified. The informant
who first tipped Bolf off, however, did not testify. In a brief
exchange the government asked Bolf about what the
nontestifying informant told him:
Q: In the winter of 2002 or thereabouts, did you receive
information from an informant about a person with the
nickname or name Deck or Dex?
A. Yes, I did, about November, December of 2002.
Q: And at the time you received that information from
that informant about Deck or Dex, did you know
immediately who that was?
A: No, I did not.
Q: Was your information that a Deck or a Dex was an
individual who sold drugs, though?
4 Nos. 04-4113 & 04-4173
A: Yes. The individual had told me that Deck was
coming. I’m sorry. The individual told me that Deck was
an individual coming up to Green Bay and having crack
cocaine sold by a young female he called Ebony from
various hotels in the area.
Five witnesses—four of whom either used or dealt and
bought drugs directly from the defendants—identified
Anderson and Parsons as Dex and Ebony. These witnesses
identified the drugs they purchased as crack. Bolf also
identified the drugs from the controlled buys as crack. The
parties stipulated that a government expert would testify
that the evidentiary substances he tested were cocaine base,
and the judge read the stipulation into evidence. During
closing argument, however, the prosecutor mischaracterized
the stipulation several times, telling jurors that the parties
agreed the substance was crack.
The jury convicted Anderson and Parsons on all counts,
although Parsons was found guilty of conspiring to distrib-
ute only five grams of crack, rather than the fifty or more
grams for which she was charged. Anderson was found
guilty of conspiring to distribute fifty or more grams of
crack. The judge sentenced Anderson to twenty-five years,
based in part on the twenty-year minimum applicable to a
defendant with Anderson’s criminal history who is convicted
of crack offenses. Both Anderson and Parsons appeal, with
Parsons seeking a new trial and Anderson seeking a new
trial or (at least) a new sentence.
II. Discussion
Anderson and Parsons raise several issues between them.
Both argue that Agent Bolf’s testimony about his conversa-
tions with the confidential informant who did not testify
was inadmissible hearsay and violated their Sixth Amend-
ment right to confront witnesses against them. They also
argue that the prosecutor’s mischaracterization of the
Nos. 04-4113 & 04-4173 5
parties’ stipulation about drug type misled the jury into
thinking it did not need to determine the type of drug in
question. Parsons individually makes a due process claim
based on what she asserts is the cumulative prejudicial
effect of the following: (1) the failure to sever her trial from
Anderson’s, (2) a witness’s reference to having seen a
“booking photo” of Parsons, and (3) Bolf’s testimony about
conversations he had with the informants who were called
to testify. Finally, Anderson claims that the search warrant
for his Milwaukee apartment was not supported by proba-
ble cause.
A. Sixth Amendment Rights
Bolf testified to information provided by the confidential
informant who first tipped him off about Dex and Ebony’s
drug business, but this particular informant never testified
at trial. Anderson and Parsons argue that this hearsay
testimony violated their Sixth Amendment right to confront
the witnesses against them. They failed to object below so
we review only for plain error. See United States v.
McCaffrey, 437 F.3d 684, 690 (7th Cir. 2006). To win
reversal under the plain error test, Anderson and Parsons
must first show there was error, that it was plain, and that
it affected their substantial rights. United States v. Cotton,
535 U.S. 625, 631 (2002).
The government concedes that eliciting testimony from
Bolf about what the nontestifying informant told him about
Anderson and Parsons violated their confrontation rights.
See Crawford v. Washington, 541 U.S. 36 (2004); see also
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004).
Accordingly, Anderson and Parsons have only to show an
effect on their substantial rights, meaning the outcome of
the trial was influenced by the error. If they do, we may
exercise our discretion to reverse, but will do so only if the
error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Cotton, 535 U.S. at 631-
6 Nos. 04-4113 & 04-4173
32. We have sometimes put this last part of the test differ-
ently, requiring a “miscarriage of justice” before a plain
error will warrant reversal. See, e.g., United States v.
Bonner, 440 F.3d 414, 416 (7th Cir. 2006) (“[Plain] error is
not correctable without proof that intolerable prejudice or
a miscarriage of justice has occurred.” (quotations omitted)).
If there is a serious risk that an innocent person has been
found guilty, United States v. Paladino, 401 F.3d 471, 481
(7th Cir. 2005), or if there is closely contested evidence on
both sides of an issue, United States v. Westmoreland, 240
F.3d 618, 635 (7th Cir. 2001), we will reverse under the
plain error standard. There is no plain error when the
defendant would have lost anyway, see, e.g., United States
v. Raney, 342 F.3d 551, 559-60 (7th Cir. 2003); United
States v. Hernandez, 330 F.3d 964, 969-70 (7th Cir. 2003),
and this case is a good example of that principle.
The evidence against Anderson and Parsons, even absent
the hearsay, was overwhelming. Five witnesses identified
Anderson and Parsons as Dex and Ebony and testified that
the two repeatedly sold crack cocaine. Renee Rogers, for
instance, testified that she met Anderson personally and
that he went by the name “Dex.” Rogers described how she
bought crack cocaine from Dex for personal consumption
and also middled deals for him. Rogers identified Eb-
ony—Parsons—as the person who usually delivered the
crack to her. Likewise, Mendell Campbell, an admitted
crack dealer, identified Anderson as one of his suppliers and
testified that Anderson used the alias “Derek Mitchell” for
his drug sales in Green Bay. Campbell identified Parsons as
Ebony and testified that Anderson supplied her with crack,
too. Lakina Campbell, Mendell Campbell’s wife, also
identified Parsons as Ebony and testified that Anderson
supplied her husband with crack, which Parsons sometimes
delivered.
Lisa Larson, a self-described crack addict, testified that
she bought crack from Anderson, whom she knew as “D.”
Nos. 04-4113 & 04-4173 7
According to Larson, sometimes Parsons, who went by the
name “Ebony,” delivered the crack. Finally, Alexander
Richard testified that he bought crack from Anderson,
whom he knew as Dex, both for personal use and resale.
Richard said Parsons, whom he knew as Ebony, would
sometimes deliver the crack to him. At least three of the
witnesses—Rogers, Larson, and Richard—called the same
cell phone number to place their orders. Police found that
cell phone in Anderson’s apartment along with over fifty
grams of crack, two electronic scales (one with cocaine
residue on it), inositol (a common cutting agent for cocaine),
a large amount of cash, and two loaded guns. Parsons had
crack in her apartment and the key to the 2001 Town &
Country minivan used to deliver drugs during the con-
trolled buys. The van had crack in it, too. Anderson and
Parsons were doomed even without the hearsay testimony;
they cannot pass the plain error test.
B. Prosecutor’s Misleading Statements During
Closing Arguments
The prosecution had the burden of proving the substances
Anderson and Parsons dealt were crack. The parties
stipulated that the government’s expert would testify that
the evidentiary substances he tested were cocaine base. But
at closing, the prosecutor mischaracterized the stipulation,
telling the jury no less than four times that Anderson and
Parsons stipulated that the substances they dealt were
crack. Since not all cocaine base is crack, see United States
v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005), Anderson
and Parsons now claim that the prosecutor’s closing
argument misled the jury into believing it did not need to
determine drug type. That, they say, violated their due
process rights.
Anderson makes the additional argument that even if the
mischaracterization is not grounds for a new trial, his
8 Nos. 04-4113 & 04-4173
sentence was adversely influenced by this error. Because of
his criminal history, Anderson was subject to a mandatory
minimum sentence of twenty years for dealing crack.
Without the finding that the drug was crack, his sentence
would have been lower.
Again, Anderson and Parsons raise this issue for the first
time on appeal, so our review is for plain error. Again, the
government concedes error. Anderson and Parsons must
show the outcome would have been different without the
prosecutor’s misstatements during closing argument.
United States v. Bowman, 353 F.3d 546, 550 (7th Cir. 2003).
Improper statements during closing argument are rarely
reversible error. Id. To determine whether the prosecutor’s
improper comments deprived Anderson and Parsons of a
fair trial, we consider the following factors, in the context of
the entire record: (1) the nature and seriousness of the
misconduct, (2) the extent to which the defense invited the
comments, (3) the defendants’ opportunity to counter the
prejudice, (4) the extent to which a jury instruction cured
the prejudice, and (5) the weight of the evidence supporting
the conviction. Id.In light of the record as a whole, we conclude that the
prosecutor’s misstatements during closing argument did not
prejudice Anderson and Parsons. This is not to say the
mischaracterization of the stipulation was not a serious
error; it is never appropriate for a prosecutor to tell jurors
that an open factual question is no longer at issue, unless
it is true. It was not true here and the prosecutor’s state-
ments were entirely improper. There is also no doubt that
the defense did not invite the prosecutor’s comments. On
the other hand, Anderson and Parsons had a clear opportu-
nity to counter the prejudice. For starters, they could have
objected to any one (or all) of the prosecutor’s
mischaracterizations of the stipulation. They also could
have straightened the matter out in their own closing
Nos. 04-4113 & 04-4173 9
arguments. They could have asked the judge to give a
curative instruction. They took none of these steps.
In any event, the judge instructed the jury that it had to
find beyond a reasonable doubt that the substances in
question were crack cocaine. The special verdict form also
made it clear that jurors were to decide whether the
substances in question were crack. The judge gave the
standard instruction that the prosecutor’s closing argument
was argument, not evidence. Moreover, the stipulation itself
was read into evidence, so jurors knew its actual terms;
they were instructed that if the prosecutor’s argument
contradicted the evidence, the evidence controlled.
Beyond that, the evidence convincingly established that
Anderson and Parsons dealt crack, so the result of this case
would have been no different without the prosecutor’s
misstatements. We have repeatedly held that the govern-
ment can prove a substance is crack by offering testimony
from people familiar with the drug, including those who sell
or use crack, since they are the real experts. E.g., United
States v. Booker, 260 F.3d 820, 824 (7th Cir. 2001); United
States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000);
United States v. Bradley, 165 F.3d 594, 596 (7th Cir. 1999).
Here, four admitted crack users or dealers testified that
they bought crack from Anderson and Parsons. Also,
Mendell Campbell’s wife, Lakina, who was familiar with
crack, testified that she saw the substance her husband was
getting from Anderson and Parsons and it was crack.
Finally, DEA Agent Bolf testified that the drugs in question
were crack. Given the substantial weight of this evidence,
the mischaracterization of the stipulation during closing
argument cannot have affected the outcome; the govern-
ment satisfied its burden of proving beyond a reasonable
doubt that Anderson and Parsons were dealing crack. See
Bradley, 165 F.3d at 596 (noting that by itself the testimony
of those experienced with crack is enough to establish that
the substance was crack).
10 Nos. 04-4113 & 04-4173
C. Parson’s Claim of Cumulative Errors
Parsons argues that the cumulative prejudice of three
additional errors denied her a fair trial. Like her other
claims, Parsons raises this one for the first time on appeal,
so our review is for plain error. First, Parsons claims her
trial should have been severed from Anderson’s. There is a
presumption, however, that coconspirators will be tried
jointly, United States v. McClurge, 311 F.3d 866, 871 (7th
Cir. 2002), and to overcome that presumption, Parsons
must show actual prejudice, United States v. Wilson, 237
F.3d 827, 835 (7th Cir. 2001). She argues she was preju-
diced by the spill-over effect of evidence about the infor-
mants’ long-standing relationships with Anderson, buying
drugs for use or resale. But Parsons delivered the drugs in
the five controlled buys and witnesses testified that they
dealt with her, too. There was crack cocaine in her apart-
ment and in the van that was linked to the drug sales, to
which she had the key. Cell phone records showed she
communicated with Anderson often. Any spill-over evidence
could hardly have tipped the scales against her.
Parsons also contends that when Anderson took the stand
and testified that “Derek Mitchell” is actually someone
else—not him—and that Parsons was dating Derek Mitch-
ell, she was effectively forced to fend off two prosecutors.
Parsons argues that she had to choose between adopting the
government’s theory that her codefendant Anderson was
Derek Mitchell or Anderson’s theory that Derek Mitchell
was someone else. Why? Parsons’ defense was that she was
not Ebony and she did not sell drugs. Whether “Derek
Mitchell” was Anderson’s alias or an unrelated third party
had no bearing on her defense that she was not Ebony. At
any rate, a showing of actual prejudice requires that
Parsons did not have a fair trial, not that she would have
had a better shot in a separate one. United States v.
Hughes, 310 F.3d 557, 563 (7th Cir. 2002). The joint trial
did not prejudice Parsons.
Nos. 04-4113 & 04-4173 11
Parsons also contends that a witness’s mention of having
seen a “booking photo” of Parsons was prejudicial, espe-
cially because the judge did not give a curative instruction.
But the witness corrected himself on cross-examination and
stated that the photo was from a government-issued
identification card, not a booking photo. Parsons’ attorney
reiterated the point during closing argument: “[Y]ou heard
the reference to a mug shot. But there is no mug shot of
Valencia Parsons. She’s not that kind of person. It was a
Government I.D. application.”
On this point, Parsons cites United States v. Reed, 376
F.2d 226 (7th Cir. 1967), but the case is distinguishable.
Reed involved repeated references to an investigator’s use
of the defendant’s “mug shots” taken in prison, and the
prejudice to the defendant flowed from the fact that the
photos in question actually were prison mug shots of the
defendant. This court held that although objections to the
“mug shot” references were sustained, the damage to the
presumption of innocence was done. Id. at 228. Here, unlike
in Reed, the single reference to a “booking photo” of Parsons
was corrected on cross-examination, and the jury was
reminded of the correction during closing argument. The
judge gave no curative instruction because none was
needed. No prejudice resulted.
Finally, Agent Bolf testified about statements made to
him during his investigation by three of the informants who
testified at the trial. Parsons maintains that this, too, was
prejudicial error. She argues that the informants’ state-
ments to Bolf were hearsay and nothing more than “a back-
door attempt” by the prosecutor to bolster the credibility of
“admitted drug users and dealers” who testified for the
government seeking “consideration or immunity for their
testimony.” If so, then there was no error in the first place;
prior consistent statements of a testifying witness are
admissible for this purpose and are not hearsay. See FED. R.
EVID. 801(d)(1)(B); United States v. Green, 258 F.3d 683,
12 Nos. 04-4113 & 04-4173
690-92 (7th Cir. 2001); United States v. Anderson, 303 F.3d
847, 858-59 (7th Cir. 2002). All three informants testified at
trial, were subjected to cross-examination, and their
credibility was attacked. Regardless, there was no preju-
dice. No fewer than five witnesses familiar with the defen-
dants’ crack dealing told such similar stories that the
evidence supporting guilt was overwhelming even without
Bolf’s testimony about the informants’ statements to him.
D. Probable Cause for the Search Warrant
Finally, Anderson maintains that Bolf’s affidavit in
support of the application for a search warrant for Ander-
son’s Milwaukee apartment did not establish probable
cause. He claims there was no reason to believe that a
search of his Milwaukee residence would turn up any
contraband. He notes that the Chrysler van was registered
to a Dexter Anderson at a different Milwaukee address and
the drug running was going on in Green Bay. We review
determinations of probable cause de novo. United States v.
Sidwell, 440 F.3d 865, 868 (7th Cir. 2006).
The probable cause inquiry is practical, not technical, and
we consider the totality of the circumstances. Illinois v.
Gates, 462 U.S. 213, 230-31 (1983). Where, as here, an
affidavit is all that was presented to the issuing judge, the
warrant’s validity rests on the strength of the affidavit.
United States v. Peck, 317 F.3d 754, 755 (7th Cir. 2003).
Probable cause does not require direct evidence linking a
crime to a particular place. United States v. Lamon, 930
F.2d 1183, 1188 (7th Cir. 1991). Instead, issuing judges are
entitled to draw reasonable inferences about where evi-
dence is likely to be found given “the nature of the evidence
and the type of offense.” Id. (quotation omitted). In the case
of drug dealers, evidence is often found at their residences.
Id. Here, we evaluate whether the affidavit gave the
magistrate judge information that suggested a “fair proba-
bility that contraband or evidence of a crime” would be
Nos. 04-4113 & 04-4173 13
found at Anderson’s Milwaukee apartment. Gates, 462 U.S.
at 238. We are satisfied that it did.
Agent Bolf had substantial evidence that Anderson sold
crack. At least two of Bolf’s informants identified Anderson
as the dealer from whom they purchased crack. One of the
two estimated she purchased crack from Anderson over 100
times. That same informant performed five controlled buys
under Bolf’s supervision. Each time, she dialed a cell phone
number that she knew to be Anderson’s and spoke with a
man whom she believed to be Anderson. Four other infor-
mants told Bolf they placed drug orders by calling the same
cell phone number. Bolf had evidence suggesting Anderson’s
link to the Milwaukee area and the particular apartment
specified in the warrant application. For example, cell
phone records show Anderson often received calls in the
Milwaukee area. One of the cars used to deliver drugs to
Rogers during the controlled buys was registered to Dexter
Anderson in Milwaukee, albeit at an address ten or eleven
blocks from the address Bolf wanted to search. But proba-
tion records, post office records, energy company records,
and the management of the apartment complex all con-
firmed that Dexter Anderson lived at the Milwaukee
address specified in the warrant application. The magis-
trate judge had probable cause to issue the warrant.1
AFFIRMED.
1
Anderson argues that Bolf ’s affidavit falsely stated that
Anderson was selling drugs in Green Bay as far back as January
2000. Anderson apparently was in a Texas prison in January
2000, but his argument on this point requires little comment. The
search warrant affidavit says Anderson was involved in a drug-
selling conspiracy that dated back to January 2000, not that
Anderson was actually selling drugs at that time.
14 Nos. 04-4113 & 04-4173
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-9-06