United States v. Hearn, Robert A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1613
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. HEARN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 30040—Jeanne E. Scott, Judge.
____________
ARGUED FEBRUARY 21, 2008—DECIDED JULY 18, 2008
____________
Before FLAUM, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. On May 5, 2006, Robert Hearn
was charged with one count of possession with intent
to distribute five grams or more of cocaine base (crack),
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A
jury found him guilty, and he was sentenced as a career
offender to 360 months’ imprisonment. For the reasons
set forth in this opinion, we affirm his conviction but
remand for resentencing in light of Kimbrough v. United
States, 128 S. Ct. 558 (2007).
2 No. 07-1613
I
BACKGROUND
A.
On the night of March 24, 2006, two City of Spring-
field, Illinois police officers, Jason Sloman and Kevin
Scarlette, observed two men walking from a back alley.
Officer Sloman recognized one of the men as Michael
Collins, a suspect in a forgery case. He called after
Collins, who walked away quickly and attempted to
enter a residence. The officers pursued Collins and ap-
prehended him at the back door of the residence.
The man with Collins was the defendant, Robert Hearn.
As Collins was attempting to flee, Mr. Hearn stood in the
driveway of the residence with his hands in his pockets.
Officer Sloman detained Collins, and Officer Scarlette
asked Mr. Hearn to take his hands out of his pockets. As
he did so, Officer Scarlette saw Mr. Hearn toss an object
onto the pavement. He therefore detained Mr. Hearn until
a third officer, Jonathan Wingerter, arrived and retrieved
the object. It was a plastic bag that contained what ap-
peared to be a large chunk of crack cocaine and some
separately packaged powder. When Officer Wingerter
seized the bag, Mr. Hearn exclaimed: “That ain’t my
dope. You can’t pin it on me.” Tr. at 199, 402.
The officers arrested both Collins and Mr. Hearn and
took them separately to the police station for booking. No
contraband was found on Mr. Hearn; however, Collins
was caught attempting to dispose of a crack pipe in a
garbage can. The bag found on the pavement was sub-
mitted for forensics testing. A chemist at the police
forensic laboratory analyzed its contents and determined
No. 07-1613 3
that it contained 11 grams of crack cocaine and 15.4 grams
of powder cocaine.
On May 5, 2006, a federal grand jury charged Mr. Hearn
with one count of possession with intent to distribute
five grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
On May 17, 2006, Mr. Hearn met with his attorney to
discuss his options. The attorney informed him that, as a
career offender, he would face a possible sentence of
360 months to life imprisonment if convicted at trial, 262-
327 months if he pleaded guilty, and less than that if
he cooperated with law enforcement authorities. Mr.
Hearn decided to cooperate.
During a proffer session on May 25, 2006, Mr. Hearn
told law enforcement officers that he had been dealing
powder cocaine and crack cocaine regularly since 1997,
and he identified two of his suppliers. Hoping that he
would be released to participate in controlled buys with
these informants, he gave the agents substantial informa-
tion regarding his pattern of interaction with these two
major dealers. The agents did not ask Mr. Hearn if he had
possessed the particular drugs for which he was arrested,
however, allegedly because they had presumed that he
was going to plead guilty.
When his cooperation did not result in his release,
Mr. Hearn attempted to procure his release another
way. On June 7, 2006, he made four telephone calls from
jail to enlist the help of his girlfriend and a friend, “Little
G.” Mr. Hearn suggested that Little G “take this thing
for me,” R.29, Ex. 13-T at 5, by going to a particular at-
torney’s office and signing a statement that the drugs
found near Mr. Hearn actually belonged to Little G. Mr.
4 No. 07-1613
Hearn told his girlfriend that Little G, unlike Mr. Hearn,
would receive only probation because he had no prior
criminal record. This plan ultimately was abandoned,
however, when the attorney informed Little G that he
would be subject to five to ten years’ imprisonment if
he signed the statement.
B.
Prior to trial, Mr. Hearn filed a motion in limine re-
questing that the court prohibit the Government from
introducing any statements that he had made during
his cooperation meeting with law enforcement officers
unless, as provided by the terms of the agreement, he
took a position at trial contrary to a specific statement
made during the proffer session. The court granted his
motion. It ruled that the Government could introduce
these prior statements only if Mr. Hearn took the stand
and provided testimony contrary to what he had told
the agents. In that case, he would be subject to impeach-
ment just like any other witness, and the Government
would be allowed to use his prior statements regard-
ing both the charged offense and his history of drug
dealing in order to accomplish that impeachment.
Mr. Hearn also filed a pre-trial motion in which he
requested permission to introduce evidence of his attor-
ney’s earlier advice to him regarding the possible sen-
tences that he might face with and without cooperation.
This evidence was intended to explain his mental state
during his meeting with the Government and to sug-
gest that he had a serious incentive to exaggerate his
prior participation in the drug trade in the hopes that he
would be released to participate in controlled buys. The
No. 07-1613 5
district court ruled that this evidence would be admissible
to prove Mr. Hearn’s state of mind, but the court warned
that its introduction would open the door for either side
to introduce evidence to explain that the attorney had
warned Mr. Hearn that he would receive a lengthy sen-
tence because he could be sentenced as a career offender.
On July 26, 2006, the Government filed a notice of its
intention to introduce, under Federal Rule of Evidence
404(b), evidence of Mr. Hearn’s prior conviction for
distribution of crack cocaine on March 12, 2003. Mr. Hearn
objected. The district court ruled that the facts under-
lying Mr. Hearn’s 2003 conviction were probative of his
knowledge, lack of mistake and intent to distribute the
cocaine in this instance. It also noted that the potential
for prejudice was minimal compared to the probative
value of the evidence—especially considering that Mr.
Hearn himself planned to introduce evidence of his
attorney’s warning that he was a career offender. Accord-
ingly, the district court ruled that it would allow the
Government to introduce at trial, for these limited pur-
poses, evidence of the facts surrounding his 2003 con-
viction.
At trial, the Government began its opening state-
ment with the following comment:
This case is about a drug dealer, who I believe you
will hear evidence that he has distributed crack cocaine
in the past. And then again on March the 24th of 2006,
he was caught with well over 5 grams of crack and
almost half an ounce of powder cocaine.
Tr. at 149-50. It then informed the jury that it would hear
testimony from the police officers who encountered
Mr. Hearn that night, from the forensic scientists who
6 No. 07-1613
analyzed the recovered bag and the substance found
inside, and from an expert on drug quantities and dis-
tribution amounts. The Government also told the jury
that it would hear excerpts from recordings of Mr. Hearn’s
phone calls from jail, in which he encouraged another
person to take the blame for his offense.
Defense counsel began his opening statement by ex-
plaining the elements of the crime that the Government
was required to prove, particularly the element of “intent
to distribute.” Tr. at 154. Specifically, counsel stated:
“Now five grams is not very much. The evidence will
show that this is a very small amount of drugs. And that
brings into play the second element. . . . intent to distrib-
ute.” Id. He went on to question whether such a “very
small amount of drugs” was possessed “for personal use
or for distribution.” Tr. at 155. He also reminded the
jury that the Government carried the burden to prove
that the substance at issue was more than five grams of
crack, as opposed to another type of cocaine base, and
that Mr. Hearn himself actually had possessed these drugs.
During its case in chief, the Government presented the
testimony of Officers Scarlette and Sloman, who had
stopped and subsequently arrested Mr. Hearn on the
night in question. A fingerprint analyst then testified
regarding his examination of the recovered bag; he
stated that he had found no fingerprints that were suit-
able for analysis or comparison. The Government also
introduced the tape recordings of Mr. Hearn’s phone
calls from jail, in which he had attempted to solicit the
help of his girlfriend and Little G.
As proof that the substance in question was crack
cocaine, the Government presented the testimony of the
forensic analyst who had weighed and analyzed all of the
No. 07-1613 7
substances found in the bag. She testified that her analysis
had determined that “the 11.0 grams of off-white chunky
substance contained cocaine base,” which is “what we
commonly refer to as rock or crack cocaine.” Tr. at 246. The
officer who had seized the bag from the ground on the
night of Mr. Hearn’s arrest also testified that the bag
had contained “what appeared to be a large chunk of
crack cocaine.” Tr. at 222-23. Finally, the Government
offered expert testimony from a DEA agent who ex-
amined the substance on the stand and testified that,
based on his knowledge and experience with the drug
trade, it “appear[ed] to be a chunk of crack cocaine.” Tr.
at 370-71.
On the issue of intent, the Government proffered expert
testimony that the packaging of the drugs found in this
case was indicative of an intent to distribute: The crack
was separately packaged in different quantities, amounts
and sizes for different customer preferences, and powder
cocaine also was included with the crack cocaine. Tr. at
371-72. The agent testified that a typical crack user does
not carry pre-cooked powder along with his crack; in-
stead, he simply purchases cocaine in crack form. Tr.
at 372.
The remainder of the Government’s case in chief in-
volved Mr. Hearn’s prior drug convictions. Two Spring-
field police officers testified about a raid on Mr. Hearn’s
residence that occurred on March 12, 2003, which ulti-
mately resulted in Mr. Hearn pleading guilty to a charge
of distribution of crack cocaine. The officers explained
that Mr. Hearn’s home had been targeted for a raid be-
cause of suspicious high-traffic activity in and out of
the home and because a controlled buy had taken place
there earlier that day. The officers testified that they
8 No. 07-1613
had discovered crack and marijuana on Mr. Hearn’s
kitchen table and more than $1,400 in cash in Mr. Hearn’s
pocket. The recovered money included $30 in pre-recorded,
official advanced funds that had been used by a con-
fidential informant in the controlled buy earlier that day.
The Government also introduced as an exhibit the crack
cocaine and marijuana that was seized in the 2003
raid. It concluded its case in chief by introducing Mr.
Hearn’s stipulation that he had pleaded guilty to having
distributed a controlled substance on March 12, 2003.
The court instructed the jury regarding the purposes
for which this evidence was admitted:
[T]his evidence is to be considered by you only on the
question of the defendant’s knowledge of cocaine,
his intent in this case on March 24th, 2006, and to
show a lack of mistake on his part on what was in the
plastic bags. He is not charged in this case with any-
thing that occurred on the March 12th, 2003 incident.
You may consider the evidence about the March 12,
2003 incident only for the limited purposes I have
told you, which are with respect to his knowledge,
intent, and lack of mistake in our case, which occurred
allegedly on March 24th of 2006.
Tr. at 278-79; see also Tr. at 341-42 (a similar statement).
In addition to questioning the Government’s proof on
the elements of the crime, Mr. Hearn chose to present a
defense. He took the witness stand and testified that he
had been merely an innocent bystander on the night in
question, and that he had not thrown a bag onto the
ground. He explained that he nevertheless had decided
to cooperate with the Government, and later attempted
to convince a friend to take the blame for him, because
No. 07-1613 9
he thought that a black man with two prior convictions
would be convicted regardless of his innocence. He testi-
fied that he therefore had felt the need to do whatever
he could to procure his release or to reduce his sentence.
Mr. Hearn admitted that he had told the agents in
his proffer session that he had been dealing crack and
powder cocaine consistently since 1997. He maintained,
however, that all of his drug dealing had ended when
he went to prison in 2003. He testified that he had exag-
gerated the truth in his proffer session when he told
the agents that he had bought and sold a significant
amount of crack from two major dealers after his release
from prison in the hope that they would release him
again to perform controlled buys. Mr. Hearn also testified
that 11 grams of crack was a typical quantity of crack for
an individual to possess for personal use.
On rebuttal, the Government presented the testimony
of a DEA agent who had participated in the proffer ses-
sion with Mr. Hearn. He testified that Mr. Hearn had
told him that he had been receiving cocaine from a par-
ticular dealer “all the way up to the time of his arrest” in
this case. Tr. at 459, 461. The district court admitted
without objection certified copies of Mr. Hearn’s three
prior drug convictions, and it instructed the jury to con-
sider the evidence only for the purpose of deciding
whether Mr. Hearn’s testimony was truthful.
In closing arguments, the Government made the fol-
lowing statement:
Now, when I talked to you at the beginning of this
trial in opening statement, I told you that what this
case was about was a drug dealer who was once again
caught on March the 24th of 2006, with cocaine and
10 No. 07-1613
cocaine base crack cocaine. And who has since then
engaged in one deceitful act after another trying to
avoid the consequences of what he did. And that is
exactly what you heard.
Tr. at 570.
At the conclusion of the evidence, the district court
instructed the jury on, among other things, the definition
of crack cocaine. Specifically, it stated that “cocaine base
(’crack’) is defined as a form of cocaine base, produced
by mixing cocaine hydrochloride with baking soda and
water, boiling the mixture until only a solid substance
is left, and allowing it to dry, resulting in a rock-
like substance.” Tr. at 562-63. It also stated that “all crack
is cocaine base but not all cocaine base is crack.” Tr. at 563.
On August 17, 2006, after a three-day trial, the jury found
Mr. Hearn guilty of distributing over 5 grams of crack
cocaine. He moved for a judgment of acquittal on the
ground that the evidence was insufficient to prove that
the substance in question was crack. The district court
denied the motion. On March 16, 2007, the district court
sentenced Mr. Hearn to 360 months’ imprisonment,
8 years of supervised release and a $100 special assess-
ment. This timely appeal followed.
II
DISCUSSION
A.
Mr. Hearn contends that the district court should not
have allowed the Government to introduce evidence of
the facts surrounding his 2003 conviction for drug dis-
tribution. In his view, this evidence was used largely to
No. 07-1613 11
show that he had a propensity to commit the crime, an
inadmissible purpose under Rule 404(b). See United States
v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007). He points
specifically to the Government’s opening and closing
statements, in which it framed the case as being about a
“drug dealer” who “once again was caught” selling
drugs. Tr. at 570. These statements, he contends, prove
that the evidence was offered for “nothing more than a
prohibited ‘once a drug dealer, always a drug dealer’
argument.” Simpson, 479 F.3d at 503. We review the dis-
trict court’s evidentiary rulings for abuse of discretion.
United States v. Dennis, 497 F.3d 765, 769 (7th Cir. 2007).
Rule 404(b) prohibits the use of evidence of prior
crimes to prove the character of a person or his propensity
to commit the charged crime; however, it allows the
court to admit evidence of a defendant’s prior crimes
for other permissible purposes, “such as proof, motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake.” Fed. R. Evid. 404(b). In
determining whether evidence is admissible under
Rule 404(b), we consider whether:
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged, (2) the evidence
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 preju-
dice.
United States v. Jones, 455 F.3d 800, 806-07 (7th Cir. 2006)
(quoting United States v. Toro, 359 F.3d 879, 884 (7th Cir.
2004)).
12 No. 07-1613
The district court determined that evidence of Mr.
Hearn’s prior conviction was relevant to show that he
had knowledge of cocaine and that he had not been
mistaken as to what was in the bag. It also viewed the
evidence as probative of his intent to distribute the
crack—a fact of particular relevance, given Mr. Hearn’s
defense that he was an innocent bystander as well as
his testimony that the quantity of drugs found in the bag
was not indicative of an intent to distribute. See United
States v. Jones, 455 F.3d 800, 808-09 (7th Cir. 2006) (ex-
plaining that evidence of prior convictions is particularly
probative where a defendant admits possession but
denies intent to distribute, although it also may be intro-
duced when he flatly denies all elements of the charge);
United States v. Chavis, 429 F.3d 662, 668 (7th Cir. 2005)
(noting that the defendant opens the door to the use of
the conviction by asserting a lack of intent for a specific
intent crime). The court emphasized that the events
resulting in his prior conviction had occurred just a
few years before the incident in question and that the
prior conviction was for the same crime as the charged
crime. The district court also concluded that the evid-
ence was not more prejudicial than probative here be-
cause (1) Mr. Hearn had put his intent to distribute
squarely at issue, and (2) Mr. Hearn already planned
to introduce the evidence of his prior convictions to
show why he feared a particularly lengthy term of im-
prisonment. Accordingly, the court found that the
specific facts of the prior conviction would be relevant
regarding Mr. Hearn’s intent and lack of mistake, with-
out being especially prejudicial.
Mr. Hearn notes that the “presumption set forth in the
Rule is against admissibility,” and “simply because the
No. 07-1613 13
evidence in question tends to show intent, motive,
identity, or the like does not mean the evidence is auto-
matically admissible.” Simpson, 479 F.3d at 497. The
Government has the obligation to “affirmatively show
why a particular prior conviction tends to show the
more forward-looking fact of purpose, design, or voli-
tion to commit the new crime.” Chavis, 429 F.3d at 668(quoting United States v. Jones, 389 F.3d 753, 757 (7th Cir.
2004). Here, when the Government was asked why it
wished to admit this evidence, it stated simply: “Intent, to
show intent. To show absence of mistake. To show his
knowledge. Because in this case he is arrested—he is
arrested and found with—or found with crack and
powder cocaine.” Tr. at 13. The court, in admitting the
evidence, offered a similarly sparse explanation.
Nevertheless, it is well established that this type of
evidence is particularly probative when the defendant
puts the question of intent squarely at issue. See Jones,
455 F.3d at 808-09; Chavis, 429 F.3d at 668.1 Mr. Hearn’s
assertion that intent is not at issue in this case because he
simply had denied possession of the drugs is belied by
the record. In defense counsel’s opening statements, he
informed the jury that he would challenge the Govern-
ment’s proof on the intent element of the crime. He spe-
cifically questioned whether such a “very small amount
of drugs” was indicative of an intent to distribute. Tr. at
1
The cases cited by Mr. Hearn do not suggest otherwise; in
those cases, the defendants did not open the door to this type
of evidence by challenging specifically the Government’s
proof on the intent element of the crime. See United States
v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007); United States v.
Wright, 901 F.2d 68, 69 (7th Cir. 1990).
14 No. 07-1613
155. Mr. Hearn also testified that the quantity of crack
found in the bags was an amount that a heavy crack user
could consume alone in a few days. Given this testimony,
his prior conviction for distribution certainly was proba-
tive of his intent to distribute a similar quantity of crack.
The district court therefore did not abuse its discretion
when it admitted this evidence.
Mr. Hearn further submits that the sheer volume of
Rule 404(b) evidence admitted by the Government
was unnecessary and unduly prejudicial. He argues that
the Government impermissibly “flood[ed] the court-
room” with other-crimes evidence, United States v.
Draiman, 784 F.2d 248, 254 (7th Cir. 1986), presenting
seven (of thirteen total) witnesses to testify about the
facts of his prior convictions. Indeed, he asserts, the
amount of testimony presented regarding his prior
crimes was approximately equal to the amount of testi-
mony regarding the crime at issue. Given that he already
had stipulated that he pleaded guilty in 2003 to a crime
involving crack cocaine distribution, Mr. Hearn con-
tends that this volume of testimony was excessive and
prejudicial.
Although we share Mr. Hearn’s concern about the
volume of Rule 404(b) evidence admitted here, we
cannot say that the district court abused its discretion in
admitting this evidence. The district court considered
the issue of prejudice, and it articulated reasons for its
conclusion that the evidence, in toto, was more probative
than prejudicial here. Tr. at 21-22. The court did not
address specifically the volume of the Rule 404(b) evid-
ence admitted at trial; however, Mr. Hearn did not
object to the evidence on that ground. Furthermore, the
district court provided a limiting instruction at the time
No. 07-1613 15
that each witness testified regarding Mr. Hearn’s prior
convictions. We have held that such limiting instructions
“are effective in reducing or eliminating any possible
unfair prejudice from the introduction of Rule 404(b)
evidence.” Jones, 455 F.3d at 809. We ultimately must
conclude that the district court did not abuse its discre-
tion by admitting this evidence, despite its volume. See
Draiman, 784 F.2d at 255.
B.
Mr. Hearn next contends that the Government failed to
prove beyond a reasonable doubt that the substance
at issue here was crack cocaine. He notes that not all
cocaine base is crack, United States v. Edwards, 397 F.3d
570, 572-73 (7th Cir. 2005), and that the Government
failed to produce any eyewitnesses or forensic analysts
who could show that the substance had been mixed
with baking soda or some other agent, boiled and dried
in the process used to produce crack.
A challenge to the sufficiency of the evidence is a dif-
ficult task for a defendant. We shall reverse “only if,
after viewing all of the evidence in a light most favorable to
the government, and drawing all reasonable inferences
therefrom, . . . a rational trier of fact could not have
found the essential elements of the crime, beyond a rea-
sonable doubt.” United States v. Morris, 498 F.3d 634, 637
(7th Cir. 2007).
We have held that “the Government may prove that a
substance is crack [cocaine] by offering testimony from
people familiar with the drug.” United States v. Romero,
469 F.3d 1139, 1153 (7th Cir. 2006) (quoting United States
v. Anderson, 450 F.3d 294, 301 (7th Cir. 2006)). Such individ-
16 No. 07-1613
uals include the veteran narcotics agents and forensic
chemists who testified here. Id. The Government presented
testimony from a forensic analyst who had performed
tests on the substance, from the officer who had seized
the bag from the ground on the night of Mr. Hearn’s
arrest and from a DEA agent who examined the sub-
stance on the stand. Each of these witnesses testified that
the substance in question appeared to be crack cocaine.
The jury was permitted to infer from this evidence that
the substance in question was, in fact, crack cocaine.
C.
Mr. Hearn also challenges his sentence. He contends
that the sentencing guidelines’ disparate treatment of
crack and powder cocaine lacks a rational basis and
exhibits a discriminatory purpose by Congress. Subse-
quent to the filing of the briefs in this case, the Supreme
Court held, in Kimbrough v. United States, 128 S. Ct. 558(2007), that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sen-
tence ‘greater than necessary’ to achieve § 3553(a)’s pur-
poses, even in a mine-run case.” Id. at 575.
Before the Supreme Court’s decision, the rule in this
circuit was that a sentencing judge was not permitted,
even under the liberalized regime of the Booker decision,
to question the 100:1 crack/powder sentencing ratio. See
United States v. Miller, 450 F.3d 270, 275-76 (7th Cir.
2006); United States v. Hankton, 473 F.3d 626, 629 (7th Cir.
2006). In Kimbrough, however, the Supreme Court held
that the 100:1 ratio is not a statutory dictate; rather, it is
a judgment of the Sentencing Commission that is en-
titled to respect but not uncritical acceptance. Kimbrough,
No. 07-1613 17
128 S. Ct. at 574; see also United States v. Taylor, 520 F.3d
746, 747 (7th Cir. 2008).
Because the district court sentenced Mr. Hearn before
Kimbrough was issued, however, it would have had no
reason to express any disagreement with the 100:1 ratio
at the sentencing hearing. At that time, such a state-
ment would have been futile under our precedent. The
district court sentenced Mr. Hearn to 360 months’ im-
prisonment, a sentence at the low end of the applicable
guidelines range. It might have imposed a lesser sen-
tence had it known that it was permissible to deviate
from the 100:1 crack/powder ratio based on a disagree-
ment with the policy. Mr. Hearn adequately preserved
the Kimbrough issue, and therefore we shall remand to
permit the district court to reconsider the sentence in
light of Kimbrough. See United States v. Padilla, 520 F.3d
766, 774 (7th Cir. 2008); see also Taylor, 520 F.3d at 747.
Conclusion
For the reasons explained in this opinion, we affirm
Mr. Hearn’s conviction, but we vacate the sentence
and remand for re-sentencing in light of the Supreme
Court’s holding in Kimbrough v. United States, 128 S. Ct.
558 (2007).
AFFIRMED in part; VACATED and REMANDED in part
USCA-02-C-0072—7-18-08