United States v. Jones, Steve ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 11, 2006
Decided April 5, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-3881
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v.
No. 02-CR-30145-02-WDS
STEVE JONES,
Defendant-Appellant. William D. Stiehl,
Judge.
ORDER
A jury found Steve Jones guilty of conspiring to distribute 50 grams or more
of cocaine base, 18 U.S.C. §§ 846, 841(a)(1), and selling a firearm to a known felon,
18 U.S.C. § 922(d)(1). Jones, while serving a sentence for murder and attempted
murder at Menard Correctional Center, organized a drug ring with the help of a
corrections officer. At one point, Jones arranged for the guard to sell a handgun to
a conspirator outside the prison, Jau Tolden, who was Jones’s former cellmate at
Menard and a convicted felon. The district court sentenced Jones to 360 months’
imprisonment, to run consecutively to the undischarged portion of his state
sentence. Jones filed a notice of appeal, but his appointed lawyer has moved to
withdraw because he cannot discern a nonfrivolous argument for appeal. See
Anders v. California, 386 U.S. 738 (1967). Jones has responded to counsel’s brief,
No. 05-3881 Page 2
see Cir. R. 51(b), though his submission does not point out any potential issues that
counsel has not discussed. Counsel’s brief is facially adequate, and so we will
discuss only the potential arguments that he and Jones raise. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel first considers challenging the district court’s decision to allow the
jurors to use transcripts to better understand the audio tapes of recorded telephone
calls Jones made from prison. Jones spoke in Pig Latin and coded language during
these calls to disguise names and incriminating information, and the government
prepared transcripts of the calls that contained parenthetical translations of the
coded language. Jones’s trial attorney moved to exclude the transcripts, arguing
that the translations were not authenticated and violated Jones’s right to confront
witnesses against him. After a hearing, the district court decided to allow the
transcripts provided that the translator was qualified as an expert witness and
would testify and be subject to cross-examination at trial. Before trial, Jones
stipulated that the translator—a corrections officer who had monitored most of the
calls live—was an expert in the field of prisoner code. When the recordings were
ultimately admitted into evidence and published to the jury, the district court
admonished the jury that the transcripts were merely a guide and that only the
recordings were evidence. The district court repeated this admonishment in the
jury instructions and told the jury that it had the responsibility to “decide whether
the transcripts correctly reflect what was said and who said it.” See Seventh Cir.
Pattern Crim. Jury Instr. 3.17.
We agree with counsel that it would be frivolous to argue that the district
court abused its discretion by allowing the jurors to consider the transcripts that
the government submitted. District courts have broad discretion in deciding
whether to allow the jury to use written transcripts as aids when listening to tape
recordings. United States v. Singleton, 125 F.3d 1097, 1105 (7th Cir. 1997); United
States v. Keck, 773 F.2d 759, 766 (7th Cir. 1985). We have upheld the use of
“decoded” transcripts to assist a jury in understanding conversations between gang
members. See, e.g., United States v. McAnderson, 914 F.2d 934, 947 n.1 (7th Cir.
1990). Jones’s attorney did not challenge the accuracy of the transcripts when
cross-examining the officer who had translated the phone calls. Nor did Jones
submit transcripts that he thought more accurately reflected the content of the
conversations, although the government had made the tapes available to the
defense in the months before trial. See United State v. Zambrana, 864 F.2d 494,
497-98 (7th Cir. 1988) (holding that when content of recording is disputed, burden
lies with parties to present transcripts of other evidence to support their version).
Finally, the district court gave the jury extensive guidance as to the proper use of
the transcripts, both at the time each tape was played and in the jury instructions.
Under these circumstances, it would be frivolous to argue that the district court
abused its discretion.
No. 05-3881 Page 3
Counsel also considers challenging the admission of letters and recorded
conversations between Jones and coconspirator Jau Tolden on the ground that they
were introduced in violation of Jones’s Sixth Amendment right to confront
witnesses because the government never called Tolden as a witness. Counsel
properly rejects this argument. We would review only for plain error because Jones
did not object on this ground in the district court. See United States v. Tolliver, 454
F.3d 660, 664 (7th Cir. 2006). Statements made to coconspirators in furtherance of
the conspiracy are not testimonial hearsay—or hearsay at all—and their admission
therefore does not raise concerns under the Confrontation Clause. United State v.
Jenkins, 419 F.3d 614, 618 (2005); Tolliver, 454 F.3d at 665. The Supreme Court’s
decision in Crawford v. Washington, 541 U.S. 36 (2004), does not alter this
proposition. Jenkins, 419 F.3d at 618.
Counsel next raises several potential arguments concerning the composition
of the venire and jury. We agree that all of them would be frivolous. First, counsel
considers challenging the makeup of the jury pool, which Jones contends did not
consist of a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S.
522, 526-31 (1975). Jones’s trial counsel objected to the composition of the venire, of
which only three people were black. The district court explained that the court
employs an independent contractor to select pools; a computerized process is used to
generate a list of names from a master wheel comprised of names of everyone in 11
surrounding counties who has a driver’s license or is registered to vote. Jones
submitted no statistical evidence to establish that a jury array with three black
members was not representative, nor did he claim that the process used to select
the pool systematically excludes black people from jury service. See Duren v.
Missouri, 439 U.S. 357, 364 (1979) (explaining three requirements for a prima facie
showing that jury pool is not drawn from fair cross-section of community); United
States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001). He merely observed that
blacks appeared to be underrepresented on his particular panel, and that is not
enough. See Phillips, 239 F.3d at 842.
Equally frivolous is the potential argument that the government improperly
used peremptory challenges to exclude black members of the venire from the jury.
Under Batson v. Kentucky, 476 U.S. 79 (1976), the prosecution may not use a
peremptory challenge to strike a potential juror on the basis of his or her race.
When claiming a Batson violation, the defendant must first make a prima facie case
that a challenge was used to exclude a juror based on race. United States v. Brown,
289 F.3d 989, 993 (7th Cir. 2002). If the prosecution then comes forth with a race-
neutral explanation, the trial court will allow the challenge unless the defendant
establishes that the explanation is pretextual. Id. At Jones’s trial, two of the three
potential jurors who were black were excluded for cause, and the government
exercised a peremptory challenge against the third. When asked, the government
supplied a specific and race-neutral explanation—the potential juror’s transience
and lifelong unemployment—the credibility of which the district court accepted and
No. 05-3881 Page 4
the validity of which we have upheld before. See United States v. Lewis, 117 F.3d
980, 983 (7th Cir. 1997). Jones made no attempt to demonstrate pretext, and it
would therefore be frivolous to argue on appeal that the district court clearly erred
in allowing the government to exercise its peremptory challenge.
Similarly untenable is the contention that Jones’s right to an impartial jury
was violated by the presence of five jurors whose backgrounds, Jones asserts,
rendered them biased against him. Ordinarily we would address such a challenge
by considering with deference the district judge’s assessment of whether potential
jurors are impartial, see United States v. Graves, 418 F.3d 739, 743 (7th Cir. 2005),
but in this case Jones did not challenge the impanelment of the allegedly biased
jurors in the district court. He now asserts that certain jurors were not impartial
because they served in the military or had a close relative who did, went though
rehabilitation for substance abuse or had a family member who did, had been in a
car accident with a police officer, or had a cousin who was a corrections officer.
These jurors all swore under oath that they could be impartial and base their
verdict only on the evidence, and none had such close ties to the case that bias could
be implied. See United States v. Medina, 430 F.3d 869, 878 (7th Cir. 2005). It
would be frivolous to argue that the district court plainly erred in allowing any of
these jurors to serve.
Next counsel deems frivolous the potential argument that the district court
erroneously refused to give the jury instruction on coercion that Jones proffered.
Jones’s theory of defense was that the guard he conspired with in fact forced him to
arrange the drug transactions and firearm sale by threatening him, beating him up,
and issuing him bogus disciplinary “tickets.” The district court concluded that
Jones’s testimony—the only evidence in the record for his theory of the case—did
not support an instruction. The defense of coercion has three elements: (1) an
immediate threat of death or serious bodily injury; (2) a well-grounded fear that the
threat will be carried out; and (3) the absence of a reasonable opportunity to avoid
the threatened harm other than by committing the crimes charged. See United
States v. Fiore, 178 F.3d 917, 922 (7th Cir. 1999). There must be sufficient evidence
as to all three elements in order to justify a jury instruction. See United States v.
Bastanipour, 41 F.3d 1178, 1184 (7th Cir. 1994).
As the district court noted, there was not “any testimony as to an immediate
threat” in Jones’s case. The issuance of unfounded disciplinary tickets does not
create “the imminent fear of death or serious bodily harm.” United States v.
Tokash, 282 F.3d 962, 969 (7th Cir. 2002). Nor does planting contraband in Jones’s
cell—another threat Jones described. And though Jones testified that he had been
threatened with death and “roughed up,” he also said that this occurred because his
“partner” had shortchanged the guard on a drug deal. By his own admission, then,
the threats of physical harm did not coerce Jones’s participation in the crimes. The
district court also reasoned that nothing in Jones’s testimony suggested that he
No. 05-3881 Page 5
lacked an opportunity to avoid the threatened harm by means other than
committing crimes; the district court noted that Jones had “ample opportunity” to
report the guard but did not. See id. at 970. (Jones testified that he informally
reported that he was being “harassed” but never mentioned the guard’s name.) We
have stated that a coercion instruction is appropriate only when there is evidence
that the defendant “had no alternative but to commit the crime in order to avoid the
greater harm.” United States v. Toney, 27 F.3d 1245, 1248 (7th Cir. 1994). Given
the testimony in this case, it would be frivolous to argue that Jones submitted
“sufficient evidence such that a rational jury could infer that he was coerced into
committing the crime charged.” Toney, 27 F.3d at 1248.
Counsel next considers arguing that there was insufficient evidence to
support Jones’s convictions for the drug conspiracy and the sale of a firearm to a
known felon. In light of the considerable deference given to a jury verdict, see
United States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006), and the overwhelming
evidence against Jones, counsel correctly concludes that a sufficiency-of-the-
evidence challenge would be frivolous.
Next, counsel considers challenging Jones’s 360-month sentence on a variety
of grounds and concludes that all the arguments are frivolous. First, counsel
discerns no error in the calculation of the advisory guideline range with respect to
the drug quantity, the adjustments for Jones’s leadership role, see U.S.S.G.
§ 3B1.1(a), and obstruction of justice, id. § 3C1.1, and the Criminal History
Category of VI (counsel wisely declines to revive trial counsel’s objection that the
prior crimes were not charged in the indictment or proved beyond a reasonable
doubt, see United States v. Washington, 417 F.3d 780, 788 (7th Cir. 2005)). Counsel
correctly notes that the 360-month sentence—at the low end of the range—is
presumed reasonable, see United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005), and he discerns no basis on which the presumption might be overcome.
Counsel also considers challenging the imposition of a sentence consecutive
to Jones’s state sentence, but concludes that the argument would be frivolous. The
district court recognized that the guidelines call for consecutive sentences when the
offense of conviction was committed while the defendant was serving another
sentence, see U.S.S.G. § 5G1.3, acknowledged its discretion to deviate from the
guidelines, and ultimately concluded that the federal sentence should be
consecutive. We agree with counsel that there is no sound basis on which to
challenge the district judge’s decision. Counsel also concludes that there is no
tenable argument to be made concerning the district court’s refusal to delete from
the Presentence Investigation Report a paragraph that outlined Jones’s attempt to
have a confidential informant killed. In response to Jones’s objection, the district
court stated that it would not rely on that paragraph when selecting an appropriate
sentence. Thus, Jones could not claim to have been harmed by the PSR’s content.
No. 05-3881 Page 6
Finally, counsel considers raising a claim that his trial attorneys were
ineffective, but concludes that such a claim would be premature because the record
is need of further development. We agree with counsel that in this case, as in most,
the ineffective-assistance claim is better saved for a motion under 28 U.S.C. § 2255.
See Massaro v. United States, 538 U.S. 500, 504 (2003).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
In light of this decision, Jones’s “Motion for Additional Information” is DENIED as
moot.