United States v. Trevor Perry ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1113, 09-1114, 09-1115 & 09-1116
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID N EIGHBORS, L AF REDERICK T AYLOR,
K AMAL S IMS, AND T REVOR P ERRY,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:08-cr-13-RLY/WGH—Richard L. Young, Chief Judge.
A RGUED S EPTEMBER 23, 2009—D ECIDED D ECEMBER 29, 2009
Before F LAUM, W OOD , and SYKES, Circuit Judges.
F LAUM , Circuit Judge. In 2008, a grand jury indicted
David Neighbors, LaFrederick Taylor, Kamal Sims and
Trevor Perry for participating in a conspiracy to distribute
crack cocaine and powder cocaine. After an eight-day
trial, a jury convicted Neighbors, Taylor, Sims and Perry
of conspiracy to possess and distribute crack cocaine,
finding each responsible for various levels of drugs
2 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
involved in the conspiracy. The jury also found Neighbors
guilty of three additional drug charges and Taylor guilty
of a gun charge. The jury acquitted Perry of a felon in
possession of a weapon charge and acquitted one of their
co-defendants completely. Neighbors, Taylor, Sims, and
Perry now appeal various aspects of their consolidated
trial and Perry appeals his sentence. For the reasons
set forth below, we affirm on all counts.
I. Background
A jury found that defendants-appellants Neighbors,
Taylor, Sims, and Perry participated, at varying levels, in
a conspiracy to possess and distribute cocaine base
(crack cocaine) that spanned several months in 2007. The
majority of the transactions involved in this conspiracy
took place at the home of Neighbors, located at 619 Jackson
Avenue in Evansville, Indiana. Law enforcement became
aware of this conspiracy in April of 2007 when Detective
Brock Hensley of the Vanderburgh County Task Force
employed a confidential informant, Samuel Curry, to
make a controlled purchase of drugs from Neighbors at
619 Jackson. Surveillance of Neighbors and individuals
who frequented 619 Jackson continued after this date.
Approximately a month after this controlled buy, on
May 22, 2007, the Vanderburgh County Task Force ob-
tained a wiretap for Neighbors’s home phone number at
619 Jackson that ran through August 22, 2007. On July 24,
2007, the Task Force officers obtained a second wiretap
for Neighbors’s cell phone that also ran through
August 22, 2007. During the time the Task Force was
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 3
conducting surveillance, Neighbors made at least nine
trips to Louisville, Kentucky to purchase powder cocaine
from his supplier, Thomas Perkins. Phone conversations
amongst appellants discussing the acquisition of cocaine
preceded each of these trips. Additionally, these wiretaps
recorded conversations between the appellants regarding
numerous other drug transactions.
On August 30, 2007, the officers executed search war-
rants for appellants’ various residences. At the residence
of Taylor, the officers found a firearm under the
mattress in the bedroom and a digital scale in the
living room. At the residence of Sims, officers found
$918 on Sims’s person and additional money in the oven.
At Perry’s residence, officers found digital scales in the
master bedroom. At 619 Jackson, officers found a man by
the name of Keshaun Horne who had money, cell phones,
and scales on him. Officers also found plastic baggies,
a small amount of cocaine, and two documents with
Neighbors’s name on them. Officers located Neighbors
later that day and found him with the cell phone attached
to the phone number for which they had obtained the
second wiretap. Neighbors, Taylor, Sims, and Perry
were taken into custody that day.
On May 21, 2008, a federal grand jury returned an eight-
count indictment against Neighbors, Taylor, Sims, Perry,
and eight other individuals.1 Count One charged Neigh-
1
Neighbors, Taylor, Sims, Perry and Derrick Stanfield were the
only defendants who proceeded to trial. The jury acquitted
(continued...)
4 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
bors, Taylor, Sims, and Perry with conspiracy to
distribute a controlled substance in violation of 21 U.S.C.
§ 846. The indictment specified the drug quantity and
type as “50 grams, or more, of a mixture or substance
containing a detectible amount of cocaine base (crack
cocaine) and 5 kilograms, or more, of a mixture or sub-
stance containing a detectable amount of cocaine hydro-
chloride (powder cocaine).” The indictment also charged
Neighbors with three other possession with intent to
distribute counts, and charged each Taylor and Perry
with one count of possession of a firearm by a convicted
felon.
After an eight-day trial, the jury convicted all four
defendants-appellants. The jury returned a verdict of guilty
for all four appellants on Count One, the conspiracy
count. The jury additionally returned guilty verdicts for
Neighbors on the other drug counts, and Taylor on the
possession of a firearm count. The jury returned a
verdict of not guilty for Perry on the possession of a
firearm count. On the special verdict form the jury
found: (1) Neighbors engaged in a conspiracy to
distribute in excess of 50 grams of cocaine base and less
than 500 grams of cocaine hydrochloride; (2) Taylor
engaged in a conspiracy to distribute in excess of 50 grams
of cocaine base; (3) Sims engaged in a conspiracy to
1
(...continued)
Stanfield. Therefore, this opinion will only address the
charges surrounding Neighbors, Taylor, Sims, and Perry, the
appellants in this case.
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 5
distribute in excess of 50 grams of cocaine base; and
(4) Perry engaged in a conspiracy to distribute less than
five grams of cocaine base. The jury did not find that
Taylor, Sims, or Perry engaged in a conspiracy to
distribute less that 500 grams of cocaine hydrochloride.
Defendants-appellants appeal various claimed trial and
sentencing errors. We recount the facts surrounding
these alleged errors in the analysis below.
II. Discussion
A. Jury Selection
The district court assembled the jury panel at random,
using voter registration polls from the Evansville area.
The panel of prospective jurors contained no African-
Americans. During voir dire, two prospective jurors on
the panel noticed and commented on the racial make-up
of the jury panel. One perspective juror, of his own initia-
tive, said, “If I were sitting in the defendant’s chair,
I might be a little concerned that we’re all rather light
skinned over here, and isn’t it supposed to be a jury of
your peers?” (Trial Tr. 4). Because of the jurors’ com-
ments, the district court asked the jurors whether they
felt uncomfortable rendering judgments for African-
Americans because they were Caucasian. All of the poten-
tial jurors responded that they did not feel uncomfortable.
Despite the reassurances of the jurors, defense counsel
objected to the make-up of the jury panel and moved for
a mistrial. The district court denied this motion.
6 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
All four of the appellants appeal the district court’s
denial of the mistrial based on the racial composition of
the jury pool. Appellants claim that the complete lack of
African-Americans in the jury pool violated their Sixth
Amendment right to a jury selected from a fair cross-
section of the community. This is a mixed question of
law and fact, therefore we review the issue de novo.
United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).
The Supreme Court has determined that “the selection
of a petit jury from a representative cross section of
the community is an essential component of the Sixth
Amendment right to a jury trial.” Taylor v. Louisiana, 419
U.S. 522, 528 (1975). Both parties agree that Duren v.
Missouri, 439 U.S. 357 (1979), controls when determining
whether the jury venire is a representative cross-section
of the community. Under Duren, “in order to establish
a prima facie violation of the fair-cross-section require-
ment, a defendant must show: (1) the group allegedly
excluded is a distinctive part of the community, (2) the
representation of this group in venires from which the
juries are selected is not fair and reasonable in relation
to the number of such persons in the community, and
(3) this underrepresentation is due to systematic ex-
clusion of the group in the jury selection process.” Duren,
439 U.S. at 364. The district court followed the three-
part Duren analysis and concluded that appellants
did not meet the requirements to warrant a mistrial.
Specifically, the district court found that the appellants
did not meet their burden of showing a systematic exclu-
sion of African-Americans from the venire.
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 7
Appellants do not refute the district court’s reasoning
but rather implore this court to shift the burden of proof
for the third-prong of the Duren analysis to the govern-
ment. Appellants acknowledge that this court addressed
this exact issue in United States v. Guy, 924 F.2d 702 (7th
Cir. 1991). In Guy, we found that a complete lack of
African-Americans on the venire satisfies the first two
prongs of the Duren analysis to establish a violation of
the fair-cross-section requirement. 924 F.2d at 706. How-
ever, we concluded that the complete lack of African-
Americans on the venire alone is insufficient to satisfy
the third prong of the Duren analysis when the venire
is randomly selected from voter lists pursuant to an
authorized plan. Id. Appellants criticize this reasoning
for failing to account for systematic inequities present in
a system that chooses venires from voter registration
lists because voter registration lists generally under-
represent minorities in the community. To address this
problem, appellants propose that a district court should
consider a venire wholly lacking in racial diversity
prima facie evidence of systematic exclusion and
require the government to rebut this presumption.
To support their argument that we should abandon
Guy, appellants rely on Batson v. Kentucky, 476 U.S. 79(1986). They argue that Batson stands for the proposition
that issues of race are better resolved by shifting the
burden of proof to the government. Applying that princi-
ple to the Duren analysis would force the government to
show that under-representation, as determined by the
district court’s assessment of the first two prongs of the
analysis, is not due to systematic exclusion of the group
8 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
in the jury selection process. However, no court has
found the burden shifting principle from Batson to be
appropriate in the Duren context. We have consistently
held that the defendant bears the burden of showing that
the under-representation is due to systematic exclusion.
See, e.g., Phillips, 239 F.3d at 842. Based on this settled
precedent, the district court did not err in denying ap-
pellants’ motion for a mistrial because, although the
venire lacked any African-Americans, appellants did not
show that systematic exclusion of African-Americans
caused this void.
B. Identification of Appellants’ Voices on the Wiretap
Tapes
Throughout the course of the trial, the government
introduced 226 phone conversations intercepted by the
wiretaps on Neighbors’s two phones. The government
presented Detective Simpson to identify the voices of the
appellants on the tapes of these phone calls. Detective
Simpson identified Perry on twenty of the conversations
and Sims on fourteen of the conversations. Detective
Simpson also testified that Taylor was identified or men-
tioned in thirteen of the conversations. To lay the founda-
tion for these identifications, Detective Simpson testified
to the following facts: he recognized Neighbor’s voice
from a ten- to twenty-minute interview with him on the
day of his arrest; he recognized Perry’s voice from a five-
to ten-minute interview with him on the day of his
arrest and from hearing him speak in court pro-
ceedings; he recognized Sims’s voice based on a ten-minute
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 9
interview after his arrest and from hearing him speak
during court proceedings; and he recognized Taylor’s
voice from hearing him speak in court proceedings. At
trial, all appellants objected to these identifications on the
basis that the government had presented an insufficient
foundation to support Detective Simpson’s testimony
regarding the identity of the speakers, that the voice
identification constituted improper opinion testimony
and that the government had not proven the identifica-
tions beyond a reasonable doubt. The district court over-
ruled the objection, finding that Detective Simpson was
qualified to testify to his opinion regarding the
individuals speaking on the tape because he was familiar
with their voices. Appellants Sims and Taylor further
objected to Detective Simpson’s reliance on hearing
them speak in court proceedings as a basis for the voice
identification as an infringement on their Fifth Amend-
ment right against self-incrimination. The district court
overruled that objection as well.
Only Taylor and Sims appeal the district court’s decision
to allow the voice identification testimony. They raise the
same challenges on appeal that they raised to the trial
court. We take these issues in turn because they require
different levels of review. Whether voice identification
based on in-court proceedings for a criminal defendant
violates his Fifth Amendment right against self-incrimina-
tion is a question of law which we review de novo. See
United States v. Smith, 308 F.3d 726, 740 (7th Cir. 2002).
Whether the government put forth sufficient evidence
to lay a proper foundation under Federal Rule of
Evidence 901(b)(5) is an evidentiary question which
10 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
we review for an abuse of discretion. United States v.
Vega, 860 F.2d 779, 789 (7th Cir. 1988).
Appellants Taylor and Sims argue that voice identifica-
tion based on in-court proceedings violated their Fifth
Amendment privilege against self-incrimination because
the government used their compelled statements. Appel-
lants concede that they have no protected interest in
their voices and that the district court could have
required them to provide voice samples to the govern-
ment. See, e.g., United States v. Dionisio, 410 U.S. 1, 7 (1973);
Hubanks v. Frank, 392 F.3d 926, 932 (7th Cir. 2004). Instead,
Taylor and Sims argue that the government violated their
Fifth Amendment rights by not going through the formal
procedure of asking the district court to order voice
samples from the appellants. Sims and Taylor also
advance the policy argument that, in future cases
involving wiretaps, criminal defendants will remain
silent and risk contempt of court during routine court
proceedings when asked if they understand the charges
or potential penalties because speaking would mean
waiving their constitutional right against self-incrimina-
tion.
Appellants’ argument misstates the Fifth Amendment
privilege against self-incrimination. The Fifth Amend-
ment only prohibits the compulsion of a witness to
testify against himself or otherwise provide the govern-
ment with evidence of a testimonial nature. Hubanks, 392
F.3d at 932. The Fifth Amendment does not prohibit
compulsion of speech of a non-testimonial nature, nor
does it give an individual a privacy interest in the charac-
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 11
teristics of his voice. See id. This is why a court may
compel a defendant to give a voice sample or a witness
may rely on having heard the defendant speak in court
to make his identification. Contrary to appellants’ policy
argument, a defendant would not waive his constitu-
tional right by answering the judge’s question about
understanding the charges because the defendant has
no right to remain silent in that situation. Allowing
voice identification based on in-court proceedings
does not violate an individual’s Fifth Amendment right
against self-incrimination. The district court properly
overruled this objection.
Appellants Sims and Taylor also argue that the gov-
ernment failed to lay a sufficient foundation under
Federal Rule of Evidence 901(b)(5) to allow Detective
Simpson to identify their voices on the wiretap tapes.
Federal Rule of Evidence 901(b)(5) states, “identification
of a voice, whether heard firsthand or through
mechanical or electronic transmissions or recording, by
opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged
speaker” comports with the authentication standard laid
out in Rule 901(a). 2 We have repeatedly interpreted this
rule to mean that “voice identification may occur based
upon minimal familiarity.” E.g., United States v. Recendiz,
2
Federal Rule of Evidence 901(a) states, “The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims.”
12 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
557 F.3d 511, 527 (7th Cir. 2009). We have also held that a
witness’s ability to hear an individual speak during a
court proceeding constitutes sufficient evidence to meet
the minimal familiarity requirement of Rule 901(b)(5).
United States v. Mansoori, 304 F.3d 635, 665 (7th Cir. 2002).
Detective Simpson’s foundational testimony meets this
low bar of minimal familiarity. See Recendiz, 557 F.3d at 527;
Mansoori, 304 F.3d at 665. To lay the foundation for
his identification of Sims’s voice, Detective Simpson
testified that he had a five- to ten-minute conversation
with Sims on the day of his arrest and he heard him
speak in previous court proceedings. To lay the founda-
tion for his identification of Taylor’s voice, Detective
Simpson testified that he heard Taylor speak in pervious
court hearings. These pieces of testimony provided suffi-
cient foundation for Detective Simpson’s identification
of appellants. Additionally, the government presented
circumstantial support of the identification of Taylor.
Deputy Marshal Rich Chambers testified that the
officers identified Taylor’s voice on a call in which Taylor
and Neighbors discussed meeting at a specific location in
thirty minutes. Thirty minutes later, Chambers observed
Taylor meet Neighbors at that very location.
Sims and Taylor argue that Detective Simpson’s testi-
mony was inherently unreliable because a significant
amount of time elapsed between when he initially
listened to the tapes and when he made the voice iden-
tifications. They try to bolster their argument by
pointing to the fact that the identifications occurred in
preparation for trial and that the officers listened to
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 13
thousands of phone calls. While these factors may effect
the weight to be given to Detective Simpson’s testimony,
none of these factors effect the admissibility of the evi-
dence. Based on the minimal familiarity standard, the
district court did not abuse its discretion in allowing
Detective Simpson to identify Sims’s and Taylor’s voice
on the wiretap tapes.
C. Transcript Books of the Wiretap Tapes
When the government played recorded phone con-
versations to the jury, the district court allowed the
jurors to follow along on government created transcripts
with marginal notations of who was speaking at any
given time. All of the appellants objected to the marginal
notations identifying the speaker on the same grounds
as their objection to Detective Simpson’s testimony identi-
fying the speakers. In response to the appellants’ objection
the court did not directly rule, but rather admonished
the jury that the transcripts were not evidence but
simply were an aid to assist in understanding the tapes.
However, the district court allowed the jury to look at the
transcripts, thereby implicitly overruling appellants’
objection.
After closing arguments the appellants objected to the
jurors taking the transcript books back to the jury room
during deliberations. The district court retrieved the
transcript books from the jurors and informed them that
while they could not rely on the transcripts, they could
listen to the tapes of the calls that had been admitted
into evidence. During deliberations the jurors asked to
14 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
listen to phone calls only involving certain speakers. After
a conversation between the district court and the
attorneys about the best way to allow the jury to
identify which conversations they wanted to hear, the
district court allowed the jury to have copies of the tran-
script books for the sole purpose of identifying the con-
versations. When sending the transcript books back to
the jury, the district court said,
Members of the jury, I’ve discussed the matter with
the attorneys. There’s really no way that we can
compile a list as to identify the alleged speakers in
the conversations, so the only way I think we can
address your request it to send the transcript book
back to the jury room with you and allow you then to
identify those phone calls you wish to hear. . . . Now,
you may recall my instructions to you—I’ve said it
over and over—that these transcripts are not evidence;
they are only an aid to help you understand what is
being said in the phone call. And the reason I’m
sending the transcript book back to you is really the
only way I can think of that would allow you to iden-
tify those phone calls you wish to hear.
(Trial Tr. 1107-08).
All appellants argue that the district court erred by
allowing the jury to take the transcript books back to the
jury room during deliberations. We review a district
court’s decision to allow the introduction of transcripts
as an aid under an abuse of discretion standard. United
States v. Nunez, 532 F.3d 645, 650 (7th Cir. 2008).
In United States v. Breland, cited by both parties, we
stated, “district courts have wide discretion in deter-
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 15
mining whether to allow juries these written transcripts
as aids in listening to audio tape recordings. We have
previously permitted transcripts to be admitted at trial
and used by the jury during deliberations when the
underlying tapes are actually played during the trial.” 356
F.3d 787, 794 (7th Cir. 2004). In Breland, the transcripts at
issue included names of the speakers based on the lay
testimony of a person familiar with the speakers’ voices.
Id. at 795.
Appellants attempt to distinguish Breland on the
ground that the district court in Breland admitted the
transcripts as evidence. In this case, the district court did
not admit the transcripts as actual evidence. Rather, the
district court only allowed their admission as an aid, to
help the jury understand the wiretap tapes. Therefore,
appellants argue, it was improper for the district court
to allow the jury to consider these transcripts during
deliberations. Appellants point to the actions of the
district court in United States v. Zambrana, 841 F.2d 1320(7th Cir. 1988), as the proper procedure for dealing with
transcripts of wiretaps. In Zambrana, the district court
allowed the jurors to use the transcripts as aids in
listening to the audio tape during the trial but did not
allow the transcripts to go to the jury room for the jury
to consider them as substantive evidence. 841 F.2d at
1335. Additionally, the district court in Zambrana
instructed the jury to resolve any discrepancies between
the tapes and the transcripts in favor of the tapes, and to
not consider the names in the margins as evidence of
the identities of the speakers. Id.16 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
Despite appellants’ attempt at distinguishing this case,
Breland is directly on point. In Breland, the district court
did not admit the transcripts as evidence. Rather, just as
in this case, the district court admitted the transcripts as
aids. 356 F.3d at 795 (“This court has stated that district
courts have wide discretion in determining whether to
allow juries to use written transcripts as aids in listening
to audio-tape recordings.”). Additionally, in this case the
district court did follow procedures very similar to those
of the district court in Zambrana. Upon first admitting
the transcripts, the district court instructed the jury that
the transcripts were not evidence but were merely an
aid. Then, the district court prohibited the jurors from
taking the transcript books to the deliberation room.
Finally, only after the district court determined that it
was necessary to expedite the deliberation process did
the district court allow the jury to take the transcript
books to the deliberation room. Additionally, when the
district court allowed the transcripts to go back to the
deliberations room, the district court re-admonished the
jury that the transcripts were not evidence but were
only an aid to help it identify which phone calls it
wanted re-played. In light of Breland and Zambrana, the
district court did not abuse its discretion when it
allowed the jury to take the transcript books back to the
deliberation room.
D. The Cross-examination of Kareem Davidovic
Kareem Davidovic testified as a cooperating witness
for the government. On direct examination, Davidovic
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 17
provided the following pieces of incriminating testimony:
Davidovic participated in drug transactions involving
cocaine powder with Neighbors on at least three
occasions; Davidovic was familiar with drug transactions
at 619 Jackson and the transactions would occur in the
front room closet; Davidovic observed Taylor cook
cocaine on the stove in a Pyrex jar; and Davidovic
observed Neighbors give Sims money at various times.
Davidovic also admitted that he faced a mandatory life
sentence and the government agreed to recommend a
more lenient sentence if he cooperated.
On cross-examination, Neighbors’s attorney asked
Davidovic, “Have you ever told anyone that you either
have lied in this particular case or intended to lie in
this particular case?” (Trial Tr. 180). Davidovic denied
ever telling anyone he lied in this case or intended to lie
in this case. At that time, Neighbors’s attorney attempted
to introduce a number of letters Davidovic admitted to
writing. One of the letters stated, “I did lie on that Haitian
N*****. I said he used to serve me my blow. You know
I never F*** with him.” The government objected on the
grounds that this letter was impermissible extrinsic
evidence of a specific instance of untruthfulness. Appel-
lants advanced two arguments to the district court for
why the court should admit this evidence. First,
appellants argued that this letter directly contradicted
Davidovic’s statement that he never told anyone that he
lied in this case or intended to lie in this case because the
Haitian referred to Selmo Cadet, another party arrested
in this case. Appellants also argued, “[I]t goes straight to
the issue of his truthfulness, veracity, or lack thereof.”
18 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
(Trial Tr. 187). Later in the argument regarding the ad-
missibility of this evidence, appellants also said that the
letters constitute an “admission by the witness that he is
able to lie and use deceit to achieve his own goals.” (Trial
Tr. 189). The district court sustained the government’s
objection and prohibited the introduction of these letters.
However, the district court acknowledged that it was
willing to revisit its ruling depending on how the evidence
developed.
Appellants argue that the district court erred by not
allowing them to introduce the letters written by Kareem
Davidovic. We review the district court’s evidentiary
rulings for abuse of discretion. United States v. McGee, 408
F.3d 966, 981 (7th Cir. 2005). If we identify an error that
amounts to an abuse of discretion and a timely objection
to the error was raised at trial, we must determine if the
error was harmless. Id.As a preliminary matter we must determine if this
evidence falls within the ambit of Federal Rule of Evidence
608(b) or Federal Rule of Evidence 613. Rule 608(b) explic-
itly states, “[s]pecific instances of the conduct of a witness
for the purpose of attacking or supporting the witness’
character for truthfulness, other than the conviction of
crime as provided in rule 609, may not be proved by
extrinsic evidence.” It is uncontested that these letters are
extrinsic evidence and should be excluded if they fall solely
within Rule 608(b). However, if Rule 613 governs the
admission of these letters, this becomes a much closer
issue. Under Rule 613, extrinsic evidence of prior incon-
sistent statements of a witness is admissible so long as
the “witness is afforded an opportunity to explain or
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 19
deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon.”
We specifically addressed the tension between Rule
608(b) and Rule 613 in United States v. McGee, 408 F.3d
966, 981-82 (7th Cir. 2005). In McGee, the government
sought to introduce tape-recorded phone calls from the
Metropolitan Correctional Center (MCC) in which the
defendant, Smith, told his boss an elaborate lie regarding
his whereabouts and then called his wife and laughed
about the lie he told his boss. 408 F.3d at 980-81. The
government prefaced the introduction of these tapes with
the question, “Have you ever made up a story regarding
your situation in this case to get out of a jam, Mr. Smith?”
Id. Smith answered, “[N]o.” Id. The district court allowed
the introduction of these tapes based on the contra-
diction between Smith’s answer to the question posed
at trial and Smith’s admission on the tape that he lied to
his boss. Id. at 981. In finding that the district court erred
in admitting the tapes, we reasoned,
the force of the MCC phone call recording was not due
to a comparison of Smith’s statements and his equivo-
cations at trial. Rather, Smith’s elaborate lie to his
supervisor, in and of itself, cast significant doubt on
Smith’s character for truthfulness. For this reason, the
MCC tape falls squarely within the ambit of Rule
608(b), and it was error for the district court to allow
the government to play the tape.
Id. at 982.
Based on our reasoning in McGee and the arguments
of appellants on the record, Davidovic’s letters fall within
20 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
the ambit of Rule 608(b). Similar to the MCC tapes in
McGee, the probative value of Davidovic’s letters is his
underlying lie, not the contradiction between his state-
ment at trial and the content of the letter. This is clear
from appellants’ arguments that these letters “go[ ]
straight to the issue of his truthfulness, veracity, or lack
thereof,” and that they are an “admission by the witness
that he is able to lie and use deceit to achieve his own
goals.” This is precisely the type of evidence of character
for truthfulness that Rule 608(b) controls and prohibits.
By asking Davidovic whether he had lied in this case
and then arguing that the letters were contradiction
evidence admissible under Rule 613, appellants attempted
to sneak the letters through the loophole between
Rule 608(b) and Rule 613 that we closed in McGee.
Moreover, even if we found that Rule 613 governed,
these letters still have admissibility problems. The record
indicates that the district court found that these letters
were not in direct contradiction with Davidovic’s trial
testimony. Selmo Cadet being the Haitian referred to in
the letters is crucial to appellants’ argument that these
letters directly contradict Davidovic’s testimony that he
never told lies in this case. Davidovic testified that he
was not sure that he knew Selmo Cadet, the only Haitian
involved in this case. Therefore, it is unclear from the
testimony that the individual mentioned in the letter
is Selmo Cadet. The district court made it clear that it
would reconsider its ruling depending on how the evi-
dence developed. However, appellants made no further
attempts to develop the evidence connecting the Haitian
referred to in the letter to Selmo Cadet. Based on this
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 21
record, the district court did not abuse its discretion
in excluding this evidence, even under Rule 613.
Finally, even if this evidence were admissible as contra-
diction evidence and the district court erred in ex-
cluding it, the error was harmless. Davidovic’s testimony
was only a small piece of a much larger case. Davidovic’s
testimony did not inculpate Perry in any manner and
only addressed one of the counts for Neighbors, Sims, and
Taylor. Additionally, had this evidence been admissible,
it would have been admissible for the limited probative
value of showing a contradiction between Davidovic’s
testimony on the stand and his earlier statement in the
letter. It would not have been admissible as a sweeping
admission by Davidovic that “he is able to lie and use
deceit to achieve his own goals,” as appellants argued. In
light of this limited probative value and the plethora of
evidence other than Davidovic’s testimony, the exclusion
of this evidence, if an error, was harmless.
E. Motion for Directed Verdict
The indictment charged all appellants with a con-
spiracy to possess and distribute both crack cocaine and
powder cocaine. After the trial, the jury returned a
special verdict form finding: (1) Neighbors engaged in a
conspiracy to distribute in excess of 50 grams of cocaine
base and less than 500 grams of cocaine hydrochloride;
(2) Taylor engaged in a conspiracy to distribute in excess
of 50 grams of cocaine base; (3) Sims engaged in a con-
spiracy to distribute in excess of 50 grams of cocaine
base; and (4) Perry engaged in a conspiracy to distribute
22 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
less than five grams of cocaine base. On the special verdict
forms, the jury did not find that Taylor, Sims, and Perry
engaged in a conspiracy to distribute less than 500 grams
of powder cocaine, as the indictment charged. After the
jury returned the special verdict, appellants Taylor, Sims
and Perry moved for a directed verdict based on the
variance between the verdict and indictment. The
district court denied appellants’ motion.
On appeal, appellants Taylor, Sims, and Perry argue
that the district court erred when it did not grant the
motion for a directed verdict. We grant great deference
to the jury verdict when reviewing a denial of a motion
for a judgment notwithstanding the verdict. United States
v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005). We evaluate
a conspiracy variance claim to determine, viewing the
evidence in a light most favorable to the government,
whether the evidence is sufficient to support the
existence of the single conspiracy charged in the indict-
ment. United States v. Williams, 272 F.3d 845, 862 (7th Cir.
2001).
Although the special verdict form does vary from the
indictment, this variance is not fatal. The general rule
that allegations and proof must correspond serves the
purpose of ensuring that the accused is informed of the
charges against him so that he can prepare his defense
and so he may be protected against a second prosecu-
tion for the same offense. United States v. Cassell, 452 F.2d
533, 536 (7th Cir. 1971). However, if these ends are met,
a variance between the allegations and proof is not fatal.
Id. When the government proves a subset of the
Nos. 09-1113, 09-1114, 09-1115 & 09-1116 23
charged conspiracy, the variance between the indictment
and the trial evidence does not become fatal because the
indictment adequately notified the defendant of the
government’s allegations. United States v. Payne, 226
F.3d 792, 795 (7th Cir. 2000). We have established that a
particular offense is a subset of the charged conspiracy
when the government need not prove any additional
elements to prove the particular offense than they would
need to prove the charged conspiracy. United States v.
Boyles, 57 F.3d 535, 544 (7th Cir. 1995). Based on this
definition, a conspiracy to distribute crack cocaine is a
subset of a conspiracy to distribute both crack cocaine
and powder cocaine. Therefore, because the defendants
had adequate notice of the government’s allegations
and suffered no prejudice from this variance, we find
that the jury’s general verdict should stand.
F. Sentencing
At sentencing, the district court sentenced Neighbors to
a life sentence, Perry to 327 months, and Sims and Taylor
to 240 months each. Appellant Perry challenges his sen-
tence of 327 months as an abuse of discretion by the
district court. We review a district court’s sentencing
decision for reasonableness, using an abuse of discretion
standard. United States v. Omole, 523 F.3d 691, 696 (7th
Cir. 2008). A sentence that falls within a properly calcu-
lated guideline range carries a presumption of reason-
ableness. Id.Perry admits that the district court correctly calculated
the sentencing range to be between zero and thirty years.
24 Nos. 09-1113, 09-1114, 09-1115 & 09-1116
However, Perry claims that the district court still acted
unreasonably by sentencing him to the highest end of his
guideline range while choosing the lowest possible
point in the guideline range for Sims and Taylor. Perry
points to the special verdict form where the jury found
that Perry engaged in a conspiracy to distribute less
than five grams of cocaine base. He contrasts this with
the jury’s special finding that Sims and Taylor each en-
gaged in a conspiracy to distribute in excess of fifty
grams of cocaine base. While the disparity in the sentences
is noticeable, the district court explained its choice at
sentencing. The district court indicated that it chose the
high end of the guideline range for Perry because of his
status as a career offender and his inability to conform
his conduct to the rule of law. Neither Sims nor Taylor
qualify as a career offender. Because Perry’s sentence
falls within the guideline range and the district court
explained its decision for choosing the highest possible
point in the range, the district court did not abuse its
discretion in sentencing Perry to 327 months.
III. Conclusion
For the foregoing reasons, we A FFIRM all appellants’
convictions and appellant Perry’s sentence.
12-29-09