United States v. Ellis, Kelvin , 240 F. App'x 146 ( 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NONPRECEDENTIAL DISPOSITION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
Argued June 13, 2007
Decided July 2, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3112
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:05-CR-30011-001-MJR
KELVIN ELLIS, Michael L. Reagan,
Defendant-Appellant. Judge.
ORDER
While serving as the Director of Regulatory Affairs for the City of East
St. Louis, Illinois, Kelvin Ellis became involved in a pattern of corruption that led to
separate indictments for election fraud, attempted tax evasion, and, as relevant to
this appeal, obstruction of justice. A jury found him guilty of election fraud, and he
pleaded guilty to attempted tax evasion; his two appeals in those cases are pending.
See United States v. Ellis, Nos. 06-1555 & 05-4677 (7th Cir. arg. Feb. 21, 2007). In
this third appeal, Ellis challenges the overall sentence he received after pleading
guilty to three counts of obstruction of justice. See 18 U.S.C. §§ 1512(c)(2), 1503.
Specifically, he argues that the district court erroneously applied an eight-level
upward adjustment after concluding that his offenses involved “threatening to
cause physical injury to a person.” See U.S.S.G. § 2J1.2(b)(1)(A). Because the
record supports the court’s application of the adjustment, we affirm.
No. 06-3112 Page 2
In the fall of 2004, federal law enforcement officials were conducting a grand
jury investigation into allegations that Ellis had engaged in election fraud. As part
of the investigation, they interviewed a confidential informant who told them that
she was with Ellis when he paid numerous people, including her, to vote for certain
candidates in a primary election. Ellis learned about the informant’s cooperation on
October 5, 2004, and the next day he told Deputy Police Chief Rudy McIntosh that
he wanted “to destroy her credibility.” Ellis said that they had to “do what we can
to take her ass off the street.”
Unbeknownst to Ellis, McIntosh was participating in the investigation and
he tape-recorded their October 6 conversation. Over the next six weeks, he taped
six more, revealing Ellis’s evolving plan for dealing with the informant. On October
7, for example, Ellis promised to provide the informant’s address and license plate
number, and when McIntosh asked what Ellis wanted to do, he replied: “Far as you
can take it. I want this bitch locked up.” On November 19, they had the following
exchange:
McIntosh: So what you and I talked about with her before—
Ellis: Mm hm.
McIntosh: —that might twist this whole thing.
Ellis: Oh, tie it up.
McIntosh: Straight.
Ellis: Dead, dead as a motherfucker. Okay.
....
McIntosh: To, to, to derail her, do you want me to go through with
adding—
Ellis: Man, I want her ass taken out.
McIntosh: We can, we can, we can talk in front of Danita about it—
[unintelligible].
Ellis: Okay.
No. 06-3112 Page 3
McIntosh: Do you want me to go to her and, and plant that crack on
her?
Ellis: Shit.
McIntosh: Yes or no?
Ellis: I want her ass taken out. And I’ll tell you what I tol’ you
before—however we hafta to do it.
Three days later, McIntosh again tried to discern Ellis’s intent:
McIntosh: Well, here’s the deal. If we put the crack on her, that’s a
10-year thing. But do you want that done, or do you want
her out of the picture, because—
Ellis: I don’t—I ain’t concerned with how. I ain’t concerned
with what. I’m concerned that this problem go away. You
understand what I’m saying?
....
McIntosh: All right. Here it is. We can dispose of her. I mean, dispose of
her. I ain’t talking about with the crack. I mean, if that’s what
you want done—I mean, if this don’t make the problem go away.
Ellis: All we got to do is discredit her, dispose of her. She needs
to be [inaudible].
....
McIntosh: Well, between me, you, and the wall, she going to come up
missing, and it ain’t going to be on your hands or on my
hands. But you know, I got your word that you going to
make me mayor. I’m going to hold you to that one.
Ellis: I’m going to do everything that I can.
The next day, McIntosh told Ellis: “Make sure you’re with your girlfriend, wife or
somebody. ‘Cause she’s . . . gonna get knocked tonight.” Ellis responded, “Done
deal.” The next day, during their final taped conversation, McIntosh showed Ellis a
picture of the informant in which she appeared to be dead; federal agents had
staged a fake murder scene. The two men had the following exchange:
No. 06-3112 Page 4
McIntosh: Here’s the deal, I’ve been up all fucking night, they
tracked her to an apartment in St. Louis off 70. Done
deal, you ain’t, listen, listen to me, you ain’t got to worry
about, if she was the problem, she’s dead, if she was the
problem, problem gone. Now if she could testify, she
going to testify from the bottom of Horseshoe Lake [near
East St. Louis].
Ellis: My man.
....
McIntosh: Alright, I’m going to roll out of here, you can keep that
one, nah, you keep that one, and, and, if that was the
problem, problem over.
Ellis: Our problem over.
Based on these events Ellis pleaded guilty to one count of obstructing justice
by attempting to discredit or kill a government witness. See 18 U.S.C. § 1512(c)(2).
And because he urged grand jury witnesses to invoke the Fifth Amendment
privilege against self-incrimination, he also pleaded guilty to two counts of corruptly
endeavoring to influence a witness in a grand jury proceeding. See id.§ 1503. At sentencing the government recommended that the district court apply
an eight-level upward adjustment on the premise that the first count involved
“threatening to cause physical injury to a person.” See U.S.S.G. § 2J1.2(b)(1)(A).
Ellis objected, arguing that he intended for McIntosh to destroy the informant’s
credibility, not to physically harm her. The court, however, found that Ellis’s
recorded statements, in particular his reaction to the staged-murder photo,
“‘screams’ defendant’s intent to do away with a potential witness against him.” The
court thus applied the eight-level upward adjustment, and sentenced Ellis to 121
months’ imprisonment.
On appeal Ellis argues that the district court misinterpreted his recorded
statements and thus misapplied § 2J1.2(b)(1)(A). He argues that his statements,
viewed in context, show only that he wanted to discredit the informant, and that
any suggestion of harming her “came only from the Government’s agents.” Whether
an obstruction-of-justice count involved a threat of physical injury is a factual
question that this court reviews for clear error only. See United States v. Sidhu,
130 F.3d 644, 652 (5th Cir. 1997); see also United States v. Schnurstein, 977 F.2d
449, 455 (8th Cir. 1992) (whether defendant caused physical injury in connection
with obstruction of justice “is a factual finding subject to the clearly erroneous
standard of review”).
No. 06-3112 Page 5
The record amply supports the district court’s finding that Ellis intended to
silence the informant not only by fabricating a criminal case to destroy her
credibility, but by having her killed. And contrary to Ellis’s assertions, the recorded
statements reveal that in several instances it was Ellis, not the government agent,
who insisted that the informant should be physically harmed. For example, Ellis
used the phrase “dead, dead as a motherfucker” to describe how he wanted
McIntosh to handle the informant. And when McIntosh later asked for a “yes or no”
answer to whether Ellis wanted him to plant crack on her, Ellis suggested
escalating things, answering, “I want her ass taken out . . . however we hafta do it.”
Moreover, Ellis agreed to procure an alibi for himself when McIntosh said that the
informant was “gonna get knocked tonight,” and as the district court found, his
response to the staged photograph can easily be described as relief. Ellis’s
statements reveal several circumstances strongly corroborating his intent to solicit
murder. See United States v. Hale, 448 F.3d 971, 983 (7th Cir. 2005). Specifically,
Ellis provided the informant’s home address and license plate number, prepared for
the offense by setting up an alibi, and “said nothing to suggest that a
misunderstanding had occurred” when McIntosh showed him the staged
photograph. See id. at 983-84. And even if reasonable minds could disagree over
the meaning of Ellis’s statements, such disagreement would not establish clear
error. See United States v. Miller, 159 F.3d 1106, 1111 (7th Cir. 1998).
Ultimately, the district court’s conclusion that Ellis planned to have the
informant killed rested on a credibility determination. Ellis testified extensively at
the sentencing hearing and attempted to provide innocent explanations for his
remarks. But the court found his testimony “coy and evasive,” and stated that “[a]t
times he would torture the meaning of a word or phrase in order to temper it into
an innocent construction.” A district court’s credibility determinations “can
virtually never be clear error,” e.g., United States v. Ortiz, 431 F.3d 1035, 1039 (7th
Cir. 2005), and Ellis has pointed to nothing in the record to cast doubt on the court’s
credibility determination here, let alone to show that it was clearly erroneous.
Ellis also argues that “the enhancement based upon this alleged uncharged
conduct so outweighs the original sentence for the charged conduct that the
enhancement is clearly erroneous.” This argument is meritless. First, the conduct
supporting the upward adjustment was charged, and Ellis pleaded guilty to
obstructing justice “by attempting to discredit or kill a government witness.”
Second, because the § 2J1.2(b)(1)(A) adjustment represents only eight levels out of
the total offense level of 27, this is not a case where “the sentencing hearing
becomes ‘a tail which wags the dog of the substantive offense.’” See United States v.
Morrison, 207 F.3d 962, 968 (7th Cir. 2000) (quoting United States v. Corbin, 998
F.2d 1377, 1387 (7th Cir. 1993)).
AFFIRMED.