United States v. Larry Norton ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2898
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY J. NORTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 15-cr-2 — Theresa L. Springmann, Chief Judge.
____________________
ARGUED MARCH 28, 2018 — DECIDED JUNE 20, 2018
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. After a six-day trial, a jury convicted
Larry Norton of conspiring to distribute and conspiring to
possess with intent to distribute large quantities of heroin and
cocaine. The district court sentenced Norton to a mandatory
life term of imprisonment. Norton now appeals his convic-
tion, challenging the district court’s denial of his motion to
suppress evidence obtained as a result of a traffic stop and the
2 No. 17-2898
district court’s admission at trial of recorded statements made
by a confidential informant. We affirm.
I. BACKGROUND
Larry Norton handled cocaine and heroin distribution for
a large drug conspiracy. During the conspiracy, Norton drove
to Chicago, Illinois and Akron, Ohio to move drugs or drug
proceeds. Customers would also pick up drugs at his home in
Fort Wayne, Indiana.
Law enforcement recruited a member of the conspiracy to
record conversations, and on October 2, 2014, the informant
did so. During that conversation, the informant, Norton, and
other members of the conspiracy sampled their heroin and
discussed business strategy.
The following month, the informant told federal drug task
force officers that Norton planned to move $400,000 of drug
proceeds. The federal officers contacted Indiana State Police
Officer Brad Shultz to plan a stop. They told Shultz to wait for
them to identify the vehicle and make a traffic stop when they
signaled him to do so.
On the morning of November 7, Norton left his home and
proceeded to the highway. Task force officers trailed Norton
for about 20 miles. During that time, Special Agent Jeffery
Robertson tried to measure Norton’s speed by pacing him. He
later testified that Norton was “close to the speed limit, but he
was, as other cars were around us, he was over the speed
limit. He was in the range of 70 to 75.” (R. 121 at 94.)
The federal officers identified Norton’s vehicle to Officer
Shultz. As Norton crossed into a construction zone, Agent
Robertson told Shultz that Norton was driving 72 mph in a 55
No. 17-2898 3
mph construction zone. Agent Robertson then instructed Of-
ficer Shultz to make the stop.
Officer Shultz testified that he used his radar gun to con-
firm that Norton was going 72 mph. He also checked Norton’s
speed by matching it with his own car’s speed. After exiting
the construction zone, Officer Shultz pulled Norton over.
During the stop, Norton allowed Officer Shultz to search
his car. As Officer Shultz inspected the vehicle, he found an
unusual wire near the gas pedal and a shell casing. His drug
sniffing dog also signaled to multiple parts of the vehicle. Of-
ficer Shultz did not arrest Norton, but he did impound the
vehicle. And after obtaining a search warrant, law enforce-
ment conducted a more thorough search, discovering
$400,000 in cash.
Months later, law enforcement arrested Norton inside a
house located a few miles north of the Mexican border. Dur-
ing the arrest, authorities also found a heat sealer, Norton’s
wallet, and $179,000 in cash inside the home. Norton was in-
dicted on one count of conspiring to distribute and possess
with intent to distribute 1 kilogram or more of heroin and 5
kilograms of more of cocaine.
Before trial, Norton moved to suppress the evidence col-
lected from his vehicle. A two-day evidentiary hearing was
held before a magistrate judge. At the hearing, officers testi-
fied that they believed the speed limit in the construction zone
was 55 mph as Norton drove through it because construction
lights were flashing. An Indiana Department of Transporta-
tion employee testified that, in fact, the lights had not been
flashing at that time and that the speed limit had thus been 70
mph.
4 No. 17-2898
Although the magistrate credited the testimony of the De-
partment’s employee as to the speed limit, it nevertheless con-
cluded that Norton had exceeded the posted speed limit of 70
mph by traveling at 72 mph. The magistrate concluded that
this was enough to provide Officer Shultz with probable
cause to conduct the traffic stop and recommended that the
court deny the motion to suppress. Over Norton’s objection,
the district court adopted the magistrate’s finding that Norton
had exceeded the speed limit and denied the motion.
The case eventually proceeded to trial. During the trial, the
government also offered the informant’s October 2 recording
as evidence. Norton objected to the introduction of the record-
ing on the basis that the informant’s statements were inadmis-
sible hearsay because they did not provide context for the
other statements in the recording. The district court overruled
the objection, but it provided two limiting instructions.
After a six-day trial, the jury convicted Norton. The dis-
trict court sentenced Norton to mandatory life imprisonment.
This appeal followed.
II. ANALYSIS
On appeal, Norton challenges his conviction on two bases.
First, he argues that the district court erred by introducing the
evidence obtained as a result of the traffic stop. Second, he
contends that the district court erred by admitting the inform-
ant’s statements from the October 2 recording. For the reasons
explained below, both arguments fail.
A. The district court correctly decided Norton’s motion to sup-
press.
An officer has probable cause to conduct a stop when he
reasonably believes that the driver is speeding. Whren v.
No. 17-2898 5
United States, 517 U.S. 806 (1996). Norton contends that the
district court erred by denying his motion to suppress be-
cause it could not have reasonably concluded that he was
driving at 72 mph before he was stopped. We review such fac-
tual findings for clear error. United States v. Breland, 356 F.3d
787, 791 (7th Cir. 2004). This highly deferential standard is met
only when the court “cannot avoid or ignore a ‘definite and
firm conviction that a mistake has been made.’” United States
v. Jackson, 598 F.3d 340, 344 (7th Cir. 2010) (quoting United
States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009)). Moreover,
we give “special deference” to credibility determinations and
will “uphold them unless ‘completely without foundation’ in
the record.” United States v. Nichols, 847 F.3d 851, 857 (7th Cir.
2017) (quoting United States v. Freeman, 691 F.3d 893, 899 (7th
Cir. 2012)).
The district court based its conclusion that Officer Shultz
had probable cause to stop Norton on the finding that Norton
had exceeded the speed limit. This factual finding is not
clearly erroneous. At the evidentiary hearing, Officer Shultz
testified that Norton was exceeding the speed limit based on
his radar reading and the speed of his own car. That testimony
was consistent with Agent Robertson’s testimony that Nor-
ton’s speed was “in the range of 70 to 75.” (R. 121 at 94.) It’s
true that another federal agent testified that Norton was trav-
elling at 70 or 71 mph before the stop. But the district court is
entitled to resolve discrepancies and credit the testimony of
some witnesses over others. Here, the district court credited
Officer Shultz’s testimony and we do not have a definite and
firm conviction that it was a mistake to do so. The district
court therefore did not err by denying Norton’s motion to
suppress.
6 No. 17-2898
B. The district court did not abuse its discretion by admitting
the informant’s statements.
Norton also argues that the district court erred by admit-
ting the informant’s statements from the October 2 recording.
We review the district court’s decision to admit evidence for
abuse of discretion and will reverse that decision “only when
the record contains no evidence on which the district court
rationally could have based its ruling.” United States v. Quiroz,
874 F.3d 562, 569 (7th Cir. 2017) (quoting United States v. Gor-
man, 613 F.3d 711, 717 (7th Cir. 2010)).
An out-of-court statement admitted for the truth of the
matter asserted is inadmissible hearsay. Fed. R. Evid. 801. But
when the statement is offered to provide context for the words
or actions of others rather than the statement’s truth, it is ad-
missible. Quiroz, 874 F.3d at 569–70. Contrary to Norton’s be-
lief, this exception is not limited to conversations between two
parties so long as the out-of-court statements provide context.
Here, the informant’s statements provided context for the
statements and actions of the conversation’s other partici-
pants. Take, for instance, the following discussion between
Norton and the informant about how to cut heroin:
Informant: No, no, this, this shit, I’d make so much
more off this if, if I learn how to cut it, if I learn how
to cut it, as long as it’s raw it’s in chunk form and
you can’t taste anything nasty, it don’t, it don’t taste
funny …
Norton: (Unintelligible)
Informant: … it’s smooth they think it’s raw.
Norton: That’s why you put milk sugar on it. Milk
sugar don’t have no taste and what it does is you put
No. 17-2898 7
it in the oven so the milk sugar match, match, match
the, uh China white.
Informant: Match the color?
Norton: Yeah. And then all you gotta do is lay a line
out.
(Appellee’s App. at 42.) In this exchange, the informant’s
statements clarify Norton’s statements about milk sugar. His
comments are similarly helpful throughout the recording.
Moreover, the district court twice provided the jury with a
limiting instruction. United States v. Zizzo, 120 F.3d 1338, 1348
(7th Cir. 1997) (approving the use of limiting instructions
when admitting informant’s statements to provide context
and presuming that jurors follow them). The district court
therefore did not err by admitting the statements.
Regardless, any error would be harmless. Norton chal-
lenges only the informant’s statements from the recording. He
does not contest his own statements or those of his cocon-
spirators. And in the recording, those parties discuss the
strength of their heroin, how to dilute it, and other elements
of business strategy. Those statements are sufficiently incul-
patory. Thus, the exclusion of the informant’s statements
would not have affected the outcome of Norton’s case. See
Quiroz, 874 F.3d at 571.
III. CONCLUSION
The district court correctly decided Norton’s motion to
suppress evidence obtained during the traffic stop. It also did
not abuse its discretion by admitting the informant’s recorded
statements. We therefore AFFIRM Norton’s conviction.