United States v. Hendrix, Clarence ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3644
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLARENCE HENDRIX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 0757—James B. Zagel, Judge.
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ARGUED DECEMBER 1, 2006—DECIDED APRIL 9, 2007
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Before EASTERBROOK, Chief Judge, and RIPPLE and
MANION, Circuit Judges.
MANION, Circuit Judge. A jury convicted defendant
Clarence Hendrix of one count of distributing at least fifty
grams of crack cocaine. The conviction arose out of a
drug transaction with a confidential informant. Hendrix
appeals, arguing that the evidence was insufficient to
support his conviction, that he was entitled to a missing
witness jury instruction after the confidential informant
failed to testify, that the government improperly used the
confidential informant, and that his sentence is unreason-
able based on a disparity between sentences for powder
2 No. 05-3644
and crack cocaine. We affirm Hendrix’s conviction and
sentence.
I.
Clarence Hendrix’s conviction for distributing crack
cocaine stems from several encounters between Hendrix
and a confidential informant, Isadore Gee. On April 30,
2002, agents from the Federal Bureau of Investigation
provided Gee with money and a recording device. Gee
then called Hendrix, but did not meet with him. The
officers, however, recorded the telephone conversation,
during which Gee requested “the same thing” from
Hendrix. While “the same thing” remained unspecified, the
government argued that “the same thing” covertly re-
ferred to a drug transaction. On May 2, 2002, the govern-
ment again provided Gee with money and a recording
device. Gee met with Hendrix, but they did not complete
a transaction. A recording of the meeting demonstrated
that Hendrix balked at completing the transaction be-
cause he spotted several “detective cars” conducting
surveillance in the area.
One week later, on May 9, 2002, Gee again received
money and a recording device. Officers then searched his
car and person, assuring that no drugs or money were
present, after which Gee proceeded to a neighborhood
where he and the officers anticipated a transaction with
Hendrix. Officers were in place to conduct surveillance
near a house owned by Clarence Hendrix’s mother,
located at 623 Campbell, where the transaction was to
take place. Gee parked his car near 623 Campbell, walked
to the house, and entered. The recording indicated that
Gee again asked Hendrix for the “same thing,” and
No. 05-3644 3
Hendrix responded that he should “[c]ome back in about
fifteen minutes.” Complying with Hendrix’s instructions,
Gee left and went to his girlfriend’s apartment, located
about half a block away, just around the corner. Notably,
Gee’s detour to the apartment was not authorized or
anticipated by the officers monitoring him, and it was
contrary to guidelines for his cooperation. Gee remained
inside the apartment and out of sight for about fifteen
minutes.
Meanwhile, Hendrix exited 623 Campbell and briefly
sat on a bench on the front porch. He then went across the
street to his car, which he started and backed up. Gee, then
returning from his girlfriend’s apartment, approached
the driver’s window of Hendrix’s car. The recording
indicated that Hendrix stated to Gee, “[g]o look on my
porch it’s wrapped up in a napkin.” Hendrix drove away
as Gee went to the porch, where he sat down in the same
spot where Hendrix had previously sat. An officer ob-
served Gee place “something white” in his front pocket.
After this incident, Gee once again returned to his girl-
friend’s apartment for about five minutes. He then exited
and walked around the neighborhood before entering
an undercover officer’s vehicle. Gee gave the officer a
white paper towel and a plastic bag containing a white,
rock-like substance. A chemist later provided expert
testimony that this substance was 53.7 grams of crack
cocaine.
The parties expected Gee to testify at trial, and the
prosecutor even previewed this to the jury in his opening
statement. Gee showed up at the courthouse, but initially
refused to testify. The court warned him that a subpoena
remained in effect and he must appear the next day. The
next day Gee arrived at the courthouse, apparently ready
4 No. 05-3644
to testify, but the government reported that it had learned
from another source that Gee had “recently been using a
lot of heroin.” The government considered this “the last
straw” and elected not to call him. The government offered
Gee to the defense, stating that Gee was willing to speak
with the defense and that “[i]f the defense wants him as a
witness, he is theirs.” The court took a recess to allow the
defense to consult with Gee, but the defense decided after
only a brief break that “it would serve us no purpose to
interview Mr. Gee or call Mr. Gee as a witness.” The
district court then determined that, since Gee was available
to the defense, the defense could not argue in closing that
the government failed to present Gee as a witness; if the
defense mentioned this, the court stated that the prosecu-
tors were free to inform the jury that the defense could
have called Gee. Neither party mentioned Gee’s absence
as a witness during closing arguments.
The jury convicted Hendrix of distributing a con-
trolled substance on or about May 9, 2004, based on the
above series of events. (The jury also acquitted Hendrix of
distributing a controlled substance on or about August 8,
2004, a transaction which is not at issue.) After additional
deliberations, the jury found that the substance was “at
least fifty grams or more of cocaine base in the form of
crack cocaine.” After trial, Hendrix filed post-trial mo-
tions for a new trial and for a judgment of acquittal,
which the district court denied. The district court sen-
tenced Hendrix to 240 months of imprisonment, a manda-
tory minimum based on his prior felony drug convic-
tion. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 851(a)(1).
Hendrix appeals.
No. 05-3644 5
II.
On appeal, Hendrix first argues that the government
presented insufficient evidence to support his conviction,
and that the district court should have granted him a
judgment of acquittal. We review de novo the district
court’s decision denying a motion of acquittal. United States
v. Jones, 222 F.3d 349, 351 (7th Cir. 2000) (citation omitted).
Hendrix bears “a heavy burden” in making this challenge.
United States v. Leahy, 464 F.3d 773, 794 (7th Cir. 2006); see
also United States v. Romero, 469 F.3d 1139, 1151 (7th Cir.
2006). This is because we must examine “the evidence and
all reasonable inferences that can be drawn from it . . . in
the light most favorable to the government.” United States
v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001) (citations
omitted). The evidence is insufficient “only if no rational
trier of fact could have found guilt beyond a reasonable
doubt.” Leahy, 464 F.3d at 794 (citation omitted).
In this case, the government presented sufficient cir-
cumstantial evidence from which a rational juror could
determine beyond a reasonable doubt that Hendrix distrib-
uted crack cocaine. The recorded conversations between
Gee and Hendrix suggested that the two were arranging
a transaction for a controlled substance. When at Hen-
drix’s mother’s house on the date of the alleged transac-
tion, Hendrix instructed Gee to return to the house in
fifteen minutes after Gee asked for the “same thing.” In the
interim, Hendrix sat on the porch and then went to his car.
From his car, he then told Gee that it was on the porch
“wrapped up in a napkin.” Gee sat on the porch in the
same place Hendrix sat, where officers observed him
placing something white in his pocket. He later turned over
a napkin and a bag of cocaine to the officers. While it is
metaphysically possible that Gee obtained the crack
6 No. 05-3644
cocaine during the unauthorized trips into his girlfriend’s
apartment, Hendrix provides no evidence for this other
than the fact that Gee was temporarily out of the officers’
sight. The jury could very reasonably infer that Hendrix
distributed the crack cocaine based on what the officers
observed. See United States v. Henderson, 337 F.3d 914, 920
(7th Cir. 2003) (“[The defendant] chose the time and
location for their meeting. [The informant] did not know
prior to their telephone conversation that [the defendant]
would choose to complete the drug deal at his place of
employment. As a result, it is pure speculation to con-
clude that [the informant] could have planted the drugs
prior to that day.”); see also United States v. Ytem, 255 F.3d
394, 397 (7th Cir. 2001) (“Anything is possible; there are no
metaphysical certainties accessible to human reason; but a
merely metaphysical doubt (for example, doubt whether
the external world is real, rather than being merely a
dream) is not a reasonable doubt for purposes of the
criminal law.” (citations omitted)). The recorded con-
versations, the covert behavior, Hendrix’s reference to a
napkin, the observation of Gee retrieving something
white from a location where Hendrix had recently sat,
and the recovery of a napkin, when viewed together in
the light most favorable to the government, support a
reasonable inference that Hendrix distributed a controlled
substance. Furthermore, the chemist and experienced
officers provided sufficient evidence that the substance was
crack cocaine. Hendrix points to authority requiring that
the evidence support a “confident conclusion that the
defendant is guilty beyond a reasonable doubt.” United
States v. Morales, 902 F.2d 604, 608 (7th Cir. 1990). We are
confident that the circumstantial evidence is sufficient to
support the jury’s verdict beyond a reasonable doubt and
No. 05-3644 7
conclude that the conviction was supported by suffi-
cient evidence. See Leahy, 464 F.3d at 796. Furthermore, and
more important, the court amended the Morales decision
to omit the “confident conclusion” language. See United
States v. Morales, 910 F.2d 467, 467-68 (7th Cir. 1990).
Next, Hendrix argues that he was entitled to a new
trial or a missing witness instruction because the govern-
ment failed to call Gee as a witness.1 As noted, the govern-
ment anticipated calling Gee and represented this to the
court and the jury, but elected not to do so after Gee
initially balked at testifying and the government learned
of his recent heroin use. Hendrix seems to argue that
these circumstances and the government’s breach of an
alleged promise that Gee would testify are so unusual that
the “interest of justice” requires a new trial. Fed. R. Crim.
P. 33(a). The district court denied Hendrix’s motion for
a new trial, and we review that ruling for abuse of dis-
cretion. United States v. Ogle, 425 F.3d 471, 475 (7th Cir.
2005) (citation omitted).
The district court did not abuse its discretion in denying
Hendrix a new trial based on Gee’s failure to testify. It is
understandable that the defense would prefer to cross-
1
Hendrix also raises an argument under the Confrontation
Clause of the Sixth Amendment in his reply brief. He con-
cedes that he did not raise this issue in his opening brief, but
argues that the issue should be considered because the gov-
ernment supplemented the record in the interim. Having
reviewed the supplemental record, we find no reason that a
Confrontation Clause challenge could not have been brought
in the opening brief. We therefore consider this argument
forfeited. J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1035
n.2 (7th Cir. 2005) (citing Employers Ins. of Wausau v. Browner,
52 F.3d 656, 665-66 (7th Cir. 1995)).
8 No. 05-3644
examine Gee as a government witness—and thereby draw
out his convictions, his involvement with drugs, his
unauthorized trips to his girlfriend’s apartment during
the transaction, and generally discredit the government’s
case. All of this, however, could have been accomplished
by Hendrix’s attorney on direct examination. Similarly,
the defense had the opportunity to address Hendrix’s
contention that the recorded references to “the same thing”
did not refer to drugs by eliciting this from Gee as a
defense witness. Furthermore, contrary to Hendrix’s
assertions, the government’s dealing with Gee does not
require a new trial in the interest of justice. There is
absolutely no indication of bad faith by the prosecutors;
they expected Gee to testify, even requesting that the
court admonish the reluctant Gee to appear. Only after
new information surfaced regarding Gee’s recent use of
heroin did the government opt against calling Gee and
instead tendered him to the defense. Gee was in the
courthouse and available to speak with and testify for the
defense. While the defense was understandably wary of
presenting Gee as its witness, he was present and wait-
ing in the event they chose to call him. The fact that the
government did not call Gee under the circumstances did
not require a new trial in the interest of justice. The dis-
trict court, therefore, did not abuse its discretion in deny-
ing a new trial.
Further pursuing Gee’s failure to testify, Hendrix sug-
gests that he should have received the benefit of a missing
witness instruction. Although Hendrix’s counsel asked
to argue to the jury about the missing witness, he did not
request a missing witness instruction. We therefore review
for plain error. United States v. Tolliver, 454 F.3d 660, 667
(7th Cir. 2006) (citation omitted). A missing witness
instruction is warranted if “the absent witness was pecu-
liarly within the government’s power to produce; and [if]
No. 05-3644 9
the testimony would have elucidated issues in the case
and would not merely have been cumulative.” United States
v. Brock, 417 F.3d 692, 699 (7th Cir. 2005) (citation and
internal quotation omitted). In this case, Gee was available
for the defense to call, and was therefore not “peculiarly
within the government’s power to produce.” Id. Thus the
defense did not meet the requirements for a missing
witness instruction. Id. We discern no error, plain or
otherwise, under the circumstances.
Hendrix also claims that the government may not use
a confidential informant if the confidential informant
cooperated to benefit another individual’s sentence.
Hendrix now suggests that the government’s arrangement
with Gee, which benefitted Gee’s friend and drug sup-
plier Robert McIntosh, violates due process. Since Hendrix
failed to raise this argument before the district court,
we review for plain error. United States v. Mitov, 460 F.3d
901, 907 (7th Cir. 2006) (citation omitted). To meet the
plain error threshold, Hendrix “must demonstrate a
manifest miscarriage of justice.” Id. (citation omitted).
Hendrix points to statutory authority that permits the
government to compensate informants for their assistance.
Because the statute does not also state that an informant’s
cooperation may benefit another, he argues that the
government’s arrangement was improper. See 18 U.S.C.
§ 3059B; 21 U.S.C. § 886(a). We have stated, however, that
Judges are in no position to evaluate the government’s
need to offer monetary or other inducements to the
criminals whom it hopes to enlist in the “war against
drugs.” . . . Our job . . . is to make sure that grossly
unreliable evidence is not used to convict a defen-
dant. We do this by requiring (in effect) that the in-
ducements be disclosed to the jury, which can use its
10 No. 05-3644
common sense to screen out evidence that it finds to be
wholly unreliable because of the inducements that
the witness received.
United States v. Dawson, 425 F.3d 389, 395 (7th Cir. 2005)
(citation omitted, emphasis added).
In this case, an officer testified that Gee’s cooperation
would benefit a friend of Gee who was charged with
another crime. The officer also detailed Gee’s own prior
felonies. The jury therefore had information to assess Gee’s
reliability as a cooperating individual. In Dawson, we
permitted an informant’s testimony who received a twenty-
percent bounty for money recovered from drug sales that
was recovered through his assistance. Id. at 392. The
dissent in Dawson warned against the dangers of coopera-
tion agreements with “benefits made contingent upon
subsequent indictments or convictions.” Id. at 398 (internal
quotation and citation omitted). The arrangement with Gee
is distinguishable from the permitted arrangement in
Dawson because the benefit to McIntosh was not contingent
on Gee’s testimony at trial or Hendrix’s conviction, and
Gee himself did not benefit financially from Hendrix’s con-
viction. We do not find the circumstances in this case to
risk the admission of “grossly unreliable evidence.” Id. at
395. We further note that an arrangement in which a
confidential informant’s cooperation benefits a third
party is not unique to this case. See, e.g., United States v.
Ocampo, 472 F.3d 964, 966 (7th Cir. 2007) (“Ocampo’s
girlfriend cooperated with the government in its investiga-
tion of Martinez by working as a confidential source in
an effort to benefit Ocampo’s case.”). Under plain error
review, we find no “manifest miscarriage of justice” in the
government’s use of Gee as an informant, even though
his cooperation would benefit another person. Signifi-
No. 05-3644 11
cantly, the jury was informed of the arrangement and the
arrangement was not contingent on Hendrix’s conviction.
Mitov, 460 F.3d at 907.
Finally, Gee argues that his sentence is unreasonable
because of the disparity between sentences for powder
versus crack cocaine. Hendrix conceded that he raises this
argument merely to preserve it, since this court has already
decided this issue. In United States v. Miller, 450 F.3d 270,
276 (7th Cir. 2006), this court held that “differences called
for by § 841(b)(1)(B) and supported by the protocols
that U.S.S.G. § 2D1.1 prescribes for comparing different
weights and kinds of illegal drugs are not ‘unwar-
ranted.’ ” Since Congress and the Sentencing Commission
were warranted in distinguishing between crack and
powder cocaine, this distinction is not sufficient to render
a sentence unreasonable. We follow Miller, and there-
fore this argument is without merit.
III.
We conclude that the prosecution presented sufficient
evidence to support Hendrix’s conviction beyond a rea-
sonable doubt, that Gee’s failure to testify did not warrant
a new trial or a missing witness instruction, and that
there is no plain error in the government’s arrangement
with Gee as a confidential informant. We further conclude
that Hendrix’s sentence was not unreasonable. Accord-
ingly, we AFFIRM both Hendrix’s conviction and sentence.
12 No. 05-3644
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-07