United States v. Cannon, Aristeed ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3461
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RISTEED C ANNON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 907—Milton I. Shadur, Judge.
____________
A RGUED S EPTEMBER 28, 2007—D ECIDED A UGUST 20, 2008
____________
Before P OSNER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Aristeed Cannon was convicted of
distributing crack cocaine in violation of 21 U.S.C.
§ 841(a)(1). On appeal he makes several evidentiary
arguments—most notably, an attack on the admission of
a videotaped deposition taken pursuant to Rule 15 of the
Federal Rules of Criminal Procedure—and also challenges the
sufficiency of the evidence used to convict him. Finally,
he asks us to reconsider our case law permitting, in
2 No. 06-3461
accordance with Harris v. United States, 536 U.S. 545 (2002),
the use of judicially found facts in the imposition of a
statutory minimum sentence. We affirm Cannon’s con-
viction and sentence.
I. Background
Cannon was apprehended during a controlled drug
buy in Maywood, Illinois. Operating with a confidential
informant, local police and several DEA agents arranged
to purchase two ounces—two “zones,” in the drug
dealer’s parlance—of crack cocaine from Cannon. Every-
thing about the deal operated smoothly except the audio-
recording equipment that was to have memorialized the
transaction; for reasons unknown, the system failed.
Cannon arrived on schedule with his brother (who was
also apprehended and found in possession of powder
cocaine), approached the government’s undercover
vehicle, and spoke with DEA Agent Charles Ellison.
Cannon then gave Ellison two baggies of crack cocaine
(each containing roughly an ounce) in exchange for $1,500
of recorded currency. With the transaction completed,
Ellison gave the arrest signal to his surveillance team.
Cannon attempted to flee, but DEA Agent Gary Jackson,
who was observing the deal from a block away in his
parked car, quickly apprehended him in a nearby yard.
Cannon was searched and found in possession of the
$1,500 in recorded currency, several Ziploc bags, and a
small scale.
A jury convicted Cannon of distributing crack cocaine.
During trial, the government played a videotaped deposi-
No. 06-3461 3
tion of Agent Jackson in lieu of his live testimony. Video-
taped testimony is the exception in criminal trials, but
the district court allowed it here because Jackson was in
the Marine Corps Reserves and was deployed to Iraq
before the start of trial, thus satisfying the “exceptional
circumstances” requirement of Rule 15 of the Federal Rules
of Criminal Procedure. Cannon and his counsel were present
for the deposition, and Jackson was subjected to cross-
examination.
At sentencing the district court found, over Cannon’s
objection, that Cannon had distributed 54 grams of crack
cocaine. That finding differed from the jury’s finding that
Cannon had distributed between 5 and 50 grams of crack.
The drug-quantity evidence at trial was conflicting; the
weights measured at the local police department were
less than the results from the state police lab. The judge
credited the measurements from the state lab because
the police department’s measurements of each bag of
cocaine were less than the weights reported by the state
lab by exactly the same proportion—two-thirds. The judge
concluded from this that one of the scales may not
have been properly calibrated; his theory was that it
was highly unlikely that two scales would consistently
differ in this way by accident. Based on evidence that the
state lab regularly tested and logged the accuracy of its
equipment, the judge concluded by a preponderance of
the evidence that the state lab’s measurement of 54
grams was more reliable. That 4-gram increase triggered
the 10-year statutory mandatory minimum sentence (up
from 5 years), which the court then imposed.
4 No. 06-3461
II. Discussion
Cannon challenges the sufficiency of the evidence
supporting his conviction, citing the absence of an audio-
tape recording of the controlled buy (owing to the failure
of the recording equipment) and a discrepancy between
the testimony of Agent Ellison and Detective Teutonico.
The argument is meritless. We view the evidence in the
light most favorable to the government, drawing all
reasonable inferences in its favor, and will uphold the
jury’s verdict so long as “ ‘any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’ ” United States v. Jones, 418 F.3d 726, 729
(7th Cir. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
Despite the failure of the audio-recording equipment,
the government’s evidence was more than sufficient,
including as it did the testimony of multiple witnesses
who participated in the controlled buy and arrested
Cannon in possession of the buy money as he attempted
to flee the scene. The contradictory testimony of Agent
Ellison and Detective Teutonico, who provided inconsis-
tent accounts of whether Ellison intended to purchase two
or three ounces of cocaine, was minor, unimportant, and in
any event a matter for the jury to weigh in evaluating
their testimony. We do not second-guess questions of
witness credibility. United States v. Bowman, 353 F.3d 546,
552 (7th Cir. 2003). This record is easily sufficient for us
to conclude that a rational jury could find Cannon guilty
beyond a reasonable doubt.
Next up is Cannon’s assertion that admission of DEA
Agent Jackson’s videotaped deposition was unconstitu-
No. 06-3461 5
tional and unfairly prejudicial under Rule 403 of the
Federal Rules of Evidence. We review this argument for
plain error because Cannon failed to raise it below. See
United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). Agent
Jackson was deployed to Iraq before trial, and the district
court granted the government’s request under Rule 15 of
the Federal Rules of Civil Procedure to take his testimony
by videotaped deposition before he left the country.
Cannon was present with his counsel during the deposi-
tion, and Jackson was subjected to full cross-examination.
In an underdeveloped argument, Cannon asserts that the
admission of the videotaped deposition was unfairly
prejudicial and possibly unconstitutional because Jackson’s
testimony was not subjected to the rigors of an actual trial.
Although rare, preservation of witness testimony by
deposition is authorized in criminal cases under Rule
15(a)(1) when “exceptional circumstances and . . . the
interests of justice” require it. The defendant’s presence
is required, and the “scope and manner of the deposition
examination and cross-examination must be the same
as would be allowed during trial.” Rule 15(c), (e)(2). The
rule provides that all or part of the deposition may be
used as evidence “as provided by the Federal Rules of
Evidence.” Rule 15(f). Cannon does not argue that the
terms of the rule were not met, and we have previously
upheld the use at trial of Rule 15 depositions against
Confrontation Clause challenges. See, e.g., United States
v. Donaldson, 978 F.2d 381, 392-93 (7th Cir. 1992); United
States v. Kehm, 799 F.2d 354, 360-61 (7th Cir. 1986). These
cases predate Crawford v. Washington, 541 U.S. 36 (2004),
but we see no reason, post-Crawford, to question the
constitutionality of admitting fully cross-examined testi-
6 No. 06-3461
mony preserved by a properly conducted Rule 15 deposi-
tion. Crawford held that the Confrontation Clause bars
the admission of testimonial statements of witnesses
absent from trial unless the witness is unavailable and
the defendant had a prior opportunity to cross-examina-
tion. Id. at 68. Both requirements were satisfied here.
Cannon’s argument about unfair prejudice is frivolous.
Cannon also questions the chain of custody for the crack-
cocaine evidence used to convict him. Again, he did not
raise this point below, so our review is for plain error. Hall,
142 F.3d at 996. Cannon suggests that powder cocaine
seized at the scene from his brother could have been
commingled with the crack cocaine that he sold to Agent
Ellison because Detective Teutonico did not place the
crack cocaine in a sealed evidence bag. The record reflects,
however, that Detective Teutonico segregated the contra-
band at the scene, and the government’s evidence
carefully traced the path of Cannon’s crack cocaine as the
police submitted it to the state lab on three occasions
prior to trial. There was little possibility of commingling;
crack and powder cocaine bear little physical resemblance
to each other, and Teutonico marked the evidence at the
scene. The drugs remained in official custody at all
times, and there is no evidence of tampering, so we may
presume that the evidence was properly handled. United
States v. Boykins, 9 F.3d 1278, 1285 (7th Cir. 1993). Regard-
less, a break in the chain of custody goes to the weight of
the evidence, not its admissibility. United States v. Williams,
44 F.3d 614, 618 (7th Cir. 1995). We find no error, let alone
plain error.
No. 06-3461 7
Cannon’s final argument is one pertaining to his manda-
tory minimum sentence, and this circuit’s case law readily
disposes of it. By special verdict the jury found Cannon
guilty beyond a reasonable doubt of distributing at least
5 but less than 50 grams of cocaine base, subjecting him
to a prison term of 5 to 40 years. The district court, how-
ever, found by a preponderance of the evidence that
Cannon delivered 54 grams, thus triggering the manda-
tory minimum sentence of 10 years under 21 U.S.C.
§ 841(b)(1)(A). That judicial fact-finding, Cannon sug-
gests, violated his Sixth Amendment right to a jury trial.
The Supreme Court held in Harris v. United States that
the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), does
not apply to facts triggering a statutory minimum sentence
when that minimum would not exceed the maxi-
mum sentence allowable under the jury’s verdict. Harris,
536 U.S. at 557. In other words, a judge may use the
preponderance standard to find facts that increase a
defendant’s sentence when those facts do no more than
raise a statutory minimum.
We have repeatedly rejected arguments that Harris is no
longer good law after Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005). See,
e.g., United States v. Cannon, 429 F.3d 1158, 1160 (7th Cir.
2005); United States v. Jones, 418 F.3d at 730-32. We do
so again here.
A FFIRMED.
8-20-08