United States v. Jerrod Sanders , 614 F.3d 341 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1119
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERROD S ANDERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 747—David H. Coar, Judge.
A RGUED JANUARY 14, 2010—D ECIDED JULY 23, 2010
Before F LAUM, R OVNER, and H AMILTON, Circuit Judges.
R OVNER, Circuit Judge. At around 9:00 on Saturday
morning, July 14, 2007, officers of the Chicago Police
Department executed a search warrant at a suspected
drug house at 5950 South Union in Chicago, Illinois.
When no one answered their knock, the officers forcibly
entered the home and found approximately 17 people
who were using drugs and alcohol. The officers first
performed a protective sweep of the residence, and then
proceeded with their search.
2 No. 09-1119
Jerrod Sanders, along with numerous other persons,
was in one of the rooms searched by the officers. When
the officers entered that room, they ordered all of the
occupants to get on the floor. All but two persons
complied immediately. One of the non-compliant indi-
viduals was Sanders. Instead of moving to the floor,
Sanders appeared to be fumbling with his hands near
mid-body. Another officer arrived in the room, and
Officer Pendarvis then pulled Sanders to the ground
and handcuffed him. A search of Sanders revealed a 9mm
semi-automatic handgun in his front pants pocket.
At that point, Pendarvis berated Sanders asking rhetori-
cally what he was thinking and opining that “you were
going to shoot me huh?” Sanders protested that he was
going to tell the officers that he had a gun and indicated
that was the reason he did not immediately comply
with the order.
Seven people were arrested as a result of the raid,
including Sanders who was charged with one count of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Sanders was convicted of that
charge after a jury trial and sentenced to 105 months’
imprisonment, a three-year term of supervised release,
and a $600 fine and $100 special assessment.
Sanders raises two issues on appeal. First, he argues that
the district court erred in limiting the testimony that he
could elicit at trial relating to the provision of Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
Additionally, he challenges the procedure used by the
district court in deciding to apply a sentencing enhance-
ment.
No. 09-1119 3
Sanders made three incriminating statements in the
course of his arrest and interrogation. As has been dis-
cussed, he made a statement at the scene of the arrest,
explaining that he was going to tell the officers that he
had a gun in his possession. In addition, he made two
other statements at the police station. In the first
instance, Pendarvis saw Sanders’ rap sheet and in a
joking manner again stated “oh, you was going to shoot
me, huh?” Sanders replied that he was just trying to tell
Pendarvis that he had a gun. Finally, Officer Kocanda
interviewed Sanders, and in the course of that interview
Sanders admitted that he purchased the gun from
someone for fifty dollars.
On the morning of the trial, the district court con-
ducted a hearing on a motion to suppress filed by
Sanders, challenging the admissibility of his incrim-
inating statements on grounds that he was not properly
given the Miranda warnings. Specifically, Sanders chal-
lenged the admission of his statement at the residence
that he was trying to tell Pendarvis that he had a gun,
and the same statement made to Pendarvis at the police
station. In addition, he sought to exclude his statement
to Kocanda during his interview at the police station, in
which he stated that he bought the gun from someone
for $50. At the hearing, Pendarvis and Kocanda testified
as to the Miranda warnings given to Sanders. Pendarvis
testified that Kocanda provided Miranda warnings to the
group of persons while they were at the police station.
Kocanda contradicted that testimony in part, stating
that he provided Miranda warnings to the group of indi-
viduals but that he did so in the backyard of the resi-
4 No. 09-1119
dence. Kocanda further testified that he provided Miranda
warnings to Sanders individually a second time prior
to interviewing Sanders at the station. Sanders did not
present any witnesses at the suppression hearing. The
district court granted the motion to suppress with
respect to the statement at the residence in which
Sanders declared that he was trying to tell Pendarvis
that he had a weapon on him. That statement was made
before any Miranda warnings were provided. As to the
statements at the police station, the court denied the
motion to suppress, finding that they were made after
Miranda warnings were provided.
Although Sanders did not present any witnesses at
the suppression hearing the morning of the trial, he
nevertheless sought to introduce extensive testimony at
the trial itself regarding the circumstances surrounding
the Miranda warnings. During the cross-examination of
Kocanda, Sanders sought to question Kocanda regarding
the providing of Miranda warnings to Sanders and to
the others. The court allowed Sanders to ask a ques-
tion regarding the Miranda warnings given to Sanders,
and an ensuing question as to whether Kocanda pro-
vided the warning to each of the seven persons arrested
that day, but then cut off further inquiry on the subject.
Sanders argued that he sought to question Kocanda
and Pendarvis—and also to introduce testimony of four
witnesses on direct examination—to explore the issue
as to when and how the Miranda warnings were pro-
vided. Sanders intended to demonstrate that Kocanda
and Pendarvis gave contradictory accounts as to how
the Miranda warnings were given to the group of indi-
No. 09-1119 5
viduals. Sanders’ counsel asserted that it was relevant
to “bring out all those things and say somebody’s wrong,
lying, mistaken, bad memory, I don’t know what. But
these are things that we’ve got within this very com-
pact period of time and space. This is what happened.”
The district court prohibited that line of questioning,
holding that it was an attempt to impeach as to a col-
lateral matter, and that it presented a danger of jury
confusion. Sanders now appeals, contending that the
limitation thwarted his right to confrontation and cross-
examination and deprived him of a fair trial.
The Sixth Amendment right of confrontation requires
that a defendant be permitted sufficient opportunities
for effective cross-examination. Pennsylvania v. Ritchie,
480 U.S. 39, 51 (1987); United States v. Smith, 454 F.3d
707, 714 (7th Cir. 2006). That does not mean, however,
that no limits may be placed on cross-examination. The
Confrontation Clause requires only that the defendant
have “an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Kentucky
v. Stincer, 482 U.S. 730, 739 (1987) (citing Delaware v.
Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis
in original)); United States v. Linzy, ___ F.3d ___, 2010 WL
1657968 (7th Cir. April 27, 2010). Trial courts may
impose reasonable limits on cross-examination based
on concerns about harassment, prejudice, confusion of
the issues, a witness’ safety, or questioning that is repeti-
tive or marginally relevant. Smith, 454 F.3d at 714;
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
6 No. 09-1119
The district court refused to allow Sanders to explore
the Miranda issue because the court was concerned that
it would open the door to significant confusion on the
jury’s part as to whether that was an issue for it to de-
cide. Sanders sought in effect a mini-trial on the issue
of the timing and circumstances of the Miranda warnings.
In addition to cross-examining the officers regarding
their contradictory statements on the subject, Sanders
desired to have four witnesses who were also arrested
on that day testify as to whether they received Miranda
warnings in the manner described by the officers. The
district court understandably was taken aback by the
extent to which Sanders sought to explore the Miranda
issue, given that defense counsel had not presented any
of those witnesses nor had defense counsel pursued
extensive cross-examination at the hearing on the
motion to suppress that morning, in which the Miranda
issue was the crux of the motion. The extent to which
defense counsel sought to focus on the Miranda issue
became apparent to the court immediately before
Pendarvis’ testimony.
At that time, Sanders’ counsel indicated his intent to
cross-examine Pendarvis regarding the circumstances
under which Sanders made the statement to him at the
station, and the circumstances as to how and when
Miranda warnings were given by him or anyone else.
Sanders’ counsel further indicated that he intended to
explore the inconsistencies between Kocanda’s testi-
mony and Pendarvis’ as to the circumstances under
which Kocanda provided the Miranda warnings. The
court determined that the Miranda issue was not an issue
No. 09-1119 7
for the jury, and that to the extent that defense counsel
sought to impeach the government witnesses as to the
Miranda issue, that would open the door to significant
jury confusion. Accordingly, the court held that defense
counsel could not explore the Miranda issue further.
In prohibiting exploration of the issue, the court—at
least as to Pendarvis—appeared to prohibit cross-exam-
ination of Pendarvis as to the matter at all. The danger
of confusion to a jury, however, is markedly greater
where extrinsic evidence is admitted as to the matter,
and for that reason the rules of evidence make a distinc-
tion between cross-examination as to an issue and the
use of extrinsic evidence regarding it. For instance, Fed. R.
Evid. 608(b) states that:
Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the wit-
ness’ character for truthfulness, other than conviction
of crime as provided in rule 609, may not be proved
by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination
of the witness (1) concerning the witness’ character
for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of
another witness as to which character the witness
being cross-examined has testified.
In addressing whether Sanders should be allowed to cross-
examine Pendarvis, the government declared that it
seemed to be a fair ground for cross-examination to
question Pendarvis as to statements about his own inter-
8 No. 09-1119
actions or exchanges with Sanders, but objected to ques-
tions concerning Kocanda’s provision of the Miranda
warnings because that constituted an attempt to use
Pendarvis as a collateral witness to provide extrinsic
evidence regarding the Miranda issue with respect to
Kocanda, which was collateral to the issues at trial. No
further distinction was made by the court or the attorneys,
however, regarding the type of testimony sought, and
the court ultimately prohibited any exploration of the
Miranda issue.
Because the danger of confusion and undue delay
is greater with the use of extrinsic evidence, the different
uses should be separately considered by courts. See, e.g.,
Simmons, Inc. v. Pinkerton, Inc., 762 F.2d 591, 603-05 (7th
Cir. 1985). For instance, the danger of confusion in this
case would have been substantial had Sanders been
allowed to present the testimony of the four defense
witnesses as to the circumstances under which they
received, or did not receive, Miranda warnings. On the
other hand, it is difficult to see how there is a substantial
danger of jury confusion if a government witness is
questioned as to inconsistencies in his own account as
to the sequence of events that day including the timing
and manner of the Miranda warnings.
In the end, however, we need not parse what questioning
should have been allowed and what was properly disal-
lowed, because even if the exclusion was error, it was
harmless. The harmless error analysis applies to viola-
tions of the Sixth Amendment Confrontation Clause,
Smith, 454 F.3d at 715, and therefore we may still affirm
No. 09-1119 9
if we are convinced that the jury would have convicted
even absent the arguable error. United States v. Conner,
583 F.3d 1011, 1025 (7th Cir. 2009); United States v.
McGowan, 590 F.3d 446, 456 (7th Cir. 2009). In making
that determination, we look to such factors as “the impor-
tance of a witness’s testimony in the prosecution’s case,
whether the testimony was cumulative, the presence
or absence of corroborating or contradictory evidence,
and the overall strength of the prosecution’s case.” Smith,
454 F.3d at 715; United States v. Castelan, 219 F.3d 690,
696 (7th Cir. 2000).
Two officers testified that in the course of exercising
the search warrant, they recovered a gun in Sanders’
possession. Officer Piper was one of those officers, and
his testimony is completely unrelated to the Miranda
testimony of Kocanda and Pendarvis. As to Pendarvis,
both he and Kocanda testified that Kocanda provided
Miranda warnings to the persons who were arrested,
but Kocanda recalled providing the warnings before
transporting the group to the station whereas Pendarvis
stated that Kocanda gave the warnings to the group
when they were on the bench at the police station. There
is no contradiction as to Kocanda’s testimony that he
provided the warning a second time when he formally
interviewed Sanders individually, at which time Sanders
stated that he bought the gun from someone for $50.
The evidence against Sanders was significant, and the
officers’ inconsistency did not relate to the issue at trial,
which was whether Sanders was found in possession of
the gun. Instead, defense counsel sought to demonstrate
that because they were mistaken, lied, or had a faulty
10 No. 09-1119
memory as to the Miranda warnings, then the jury
should infer that their recollection of his gun possession
is equally flawed. Given the consistency in their testi-
mony as to myriad other details of the execution of
the search warrant, the arrest, and the subsequent ques-
tioning, there is simply no basis to conclude that the
lone inconsistency could have impacted the verdict.
Nor would the testimony of the defense witnesses have
added anything. According to the proffer by defense
counsel, three of the witnesses would have testified that
they did not receive any Miranda warnings in the back-
yard of the house, and did not recall receiving any
Miranda warnings as a group or otherwise in the sta-
tion. Although that contradicts Kocanda’s testimony
regarding when Miranda warnings were given, it does not
contradict Pendarvis’ testimony because they could not
recall whether they received warnings at the station. The
other defense witness would have testified that he
was not provided Miranda warnings at any point. The
utility of that testimony is questionable, particularly
since both defense and government witnesses indicated
that individuals were separated from the group for
restroom use and interviews, and therefore one
person’s experience is not necessarily indicative of
what was said to the rest of the group. Even absent that
problem, however, there is simply no basis to conclude
that the inconsistency as to when the Miranda warnings
were provided would cause a jury to doubt that Sanders
was in possession of the gun, particularly given the
overall consistency in the officers’ testimony. In fact,
identical testimony by all the officers as to every detail
No. 09-1119 11
in recounting the events of a mass arrest such as this
one might itself cause a jury to question the credibility of
the officers, as it could indicate coaching or collusion
in their testimony. We cannot hold that the jury would
not have convicted if Sanders had been allowed to intro-
duce testimony as to the inconsistencies in the officers’
recollections of the time and manner in which Miranda
warnings were provided to the group of individuals
arrested. In the context of the trial as a whole, the limita-
tion on the exploration of the Miranda issue, if error at
all, was harmless.
The final challenge by Sanders is to the district court’s
imposition of a two-level sentencing enhancement
for obstruction of justice under U.S.S.G. § 3C1.1. That
enhancement was based upon false statements by
Sanders in his affidavit for the motion to suppress, in
which Sanders declared that he obeyed the officers
when they executed the search warrant, that he did not
answer questions of any officer, and that at no time did
he confess to possessing a gun on that date. At the sen-
tencing hearing, the court began the inquiry by asking
defense counsel whether he had “anything further to
say” concerning that enhancement. Sanders asserts that
the court thereby improperly allocated the burden of
proof to him to prove that the enhancement did not
apply, as opposed to requiring the government to prove
that the enhancement was appropriate.
This argument borders on the frivolous. At the time of
the sentencing hearing, the parties had both set forth
their positions in written filings with the court. The
12 No. 09-1119
colloquy between the court and defense counsel at the
sentencing hearing makes clear that the court believed
that the government had proven that the enhancement
was appropriate, and the court was providing defense
counsel an additional opportunity to state the defense’s
position. The district court judge in fact discussed at
length his belief that the statements by Sanders were
false and material, and that the remaining issue was
whether the statements were willful. The judge then
indicated that he had a hard time seeing how the state-
ments could have been the result of mistake, confusion
or anything else other than a willful attempt to mislead,
but the judge indicated to defense counsel that “[i]f
I’m missing something, I’d be happy to hear it.” That
sequence of events is not an indication that the judge
was shifting the burden of proof. Instead, it reflects a
commendable effort by the court to ensure that the
defense had the opportunity to address the issue at the
hearing itself and, specifically, to address the issue in
light of the conclusions reached by the court as a result
of the written positions. There is absolutely no evidence
that the court placed the burden on Sanders to prove
the inapplicability of the enhancement.
The decision of the district court is A FFIRMED.
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