United States v. Bernard Foster , 701 F.3d 1142 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3097
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ERNARD F OSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 316-2—Ronald A. Guzman, Judge.
A RGUED O CTOBER 25, 2012—D ECIDED N OVEMBER 28, 2012
Before F LAUM, M ANION, and R OVNER, Circuit Judges.
F LAUM, Circuit Judge. Bernard Foster sold crack cocaine
to a paid confidential informant (“CI”) through a series of
controlled buys facilitated by federal agents. Foster was
charged with several counts of knowingly and inten-
tionally distributing cocaine base, and a jury ultimately
convicted him on four separate counts. The district court
sentenced him to serve 240 months’ imprisonment and
10 years’ supervised release. He now appeals his con-
viction, arguing that the district court improperly ad-
2 No. 11-3097
mitted evidence in violation of the Confrontation Clause
and improperly rejected his request for a missing wit-
ness instruction. He also appeals his sentence, claiming
that the district court erred by not applying the Fair
Sentencing Act in the imposition of his sentence.
We affirm the defendant’s conviction and sentence.
I. Background
On four occasions in 2009, Foster sold crack cocaine to a
paid CI of the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”). The CI was also the defendant’s relative and
a convicted felon. Each of the four transactions was audio-
recorded, two were video-recorded, and all four were
monitored live by a team of ATF agents.
A. First Controlled Buy
On February 12, 2009, ATF agents met with the CI prior
to the first controlled buy from the defendant. Agents
searched the CI and his vehicle for firearms, narcotics,
and currency before the transaction and did not find
anything. Agents then provided him with $2,300 and
a scale, and directed the CI to purchase 63 grams of
crack cocaine from the defendant.
The CI arrived at the parking lot of a Popeye’s Chicken
restaurant located at 95th Street and Vincennes Avenue
at the pre-arranged time of the transaction, where he met
the defendant. ATF agents monitored the scene through
stationary surveillance. The defendant and the CI had a
No. 11-3097 3
recorded conversation inside of a vehicle, after which
the defendant approached a nearby red Dodge Charger
and then returned to the vehicle in which he and the
defendant were conversing. The defendant then told the
CI, “Alright. He said give him 17. For that, man. That’s
two. Two whole.” The CI responded, “(UI) That’s 56.
Supposed to be 60 . . . [q]uantity is off.” The defendant
responded “[g]ive me sixteen fifty. That’s why I say 17.”
After the conversation, the CI drove out of the parking lot
and traveled to a debriefing location. Agents met with
the CI at this location and took custody of the crack
cocaine, the scale, and the recording device that had
been provided to the CI prior to the transaction. The
agents again searched the CI and his vehicle for any
narcotics, firearms, or currency and did not recover
any. The purchased crack cocaine weighed approxi-
mately 54.9 grams.
B. Second Controlled Buy
On February 24, 2009, ATF agents again met with the
CI and searched him and his vehicle for narcotics, fire-
arms, and currency. Nothing was found. Agents provided
the CI with $2,550 to purchase 63 grams of crack cocaine
from Foster. Some agents went to set up surveillance at
the buy location, while others followed the CI to the
parking lot of Popeye’s Chicken at 95th Street and
Vincennes Avenue. En route, the agent and the CI made
at least two stops, including one in which the CI pulled
over and searched for his cell phone. At another point,
the CI pulled over and told the agent that he did not have
4 No. 11-3097
a scale. The agent provided him with a scale. The CI then
continued to the parking lot, and the defendant arrived
shortly afterward. The defendant and the CI discussed
the fact that the weight of the drugs had been off in
the February 12, 2009 transaction. The defendant then
left the CI’s vehicle, walked to a nearby barbershop,
and entered a Jeep. After exiting the Jeep, the de-
fendant returned to the CI’s vehicle. The CI and the
defendant then had the following exchange:
Foster: Here. Got it all?
CI: Yeah.
Foster: You okay?
CI: I’m okay, buddy.
Foster: Okay then. Why you always have nothin’ but
hundreds?
CI: ’Cause it’s easier to count.
Foster: This 18?
CI: Ye . . . yes, sir. And you got your 50.
Foster: Mmm-hmm. Now what you say you
wanted?
CI: A quarter key.
Foster: Alright. Alright. Quarter key?
CI: Uh, yeah. Give me a call. Give me a ring.
Foster: I’ll call you on it. With it.
Foster then exited the vehicle, and the CI drove to a pre-
arranged location. Agents followed the CI to the
No. 11-3097 5
debriefing spot, where they retrieved the crack cocaine,
as well as the scale, transmitter, and unexpended funds
that had been provided to the CI. Agents searched the
CI and his vehicle for any narcotics, firearms, or currency
and found none. The crack cocaine weighed 57.6 grams.
C. Third Controlled Buy
On March 20, 2009, ATF agents met with the CI to
prepare for the third controlled buy. Agents searched
the CI and his vehicle for narcotics, firearms, and
currency and found none. They provided the CI with
$2,200 to purchase crack cocaine from the defendant. In
addition to providing the CI with an audio-recording
device and transmitter, the agents also provided him with
a video-recording device. A surveillance team again
monitored the buy. After stopping at a gas station for
five or six minutes, the CI arrived at the Citgo parking
lot located at 99th Street and Vincennes Avenue. The
defendant walked over to the CI’s vehicle and spoke to
the CI. The defendant then drove out of the parking lot
and returned a short time later, re-approaching the CI’s
vehicle and engaging in another conversation with
him. The CI then exited the Citgo lot and traveled to the
debriefing location, where he met with ATF agents.
The agents retrieved the crack cocaine he purchased, as
well as the transmitter and recording devices. Agents
searched the CI and his vehicle for narcotics, firearms,
and currency and found none. The purchased crack
cocaine weighed approximately 64 grams.
6 No. 11-3097
D. Fourth Controlled Buy
On April 2, 2009, agents again met with the CI to
arrange a fourth controlled buy. Prior to the transaction,
the agents searched the CI and his vehicle for narcotics,
firearms, and currency and found none. Agents provided
the CI with $2,600 to purchase crack cocaine from the
defendant, as well as a scale, an audio/video recording
device, and a transmitter. Some agents again monitored
the predetermined buy location, the Popeye’s restaurant
on 95th Street and Vincennes Avenue, while others fol-
lowed the CI to the location. While the agents’ surveillance
view was blocked at times, Agent Vernon Mask testified
that the defendant arrived at the parking lot in a blue van
and walked back and forth several times between the
van and the CI’s vehicle, updating the CI on the where-
abouts of his supplier. A grey Chevy Impala arrived,
occupied by the defendant’s crack cocaine supplier,
Justin Gardner. After spending a couple of minutes in
the Impala, Foster returned to the CI’s vehicle. After the
transaction, the CI drove to the debriefing location, where
he provided the agents with the crack cocaine he had
purchased, the scale, the transmitter, and unexpended
funds. Agents again searched the CI and recovered noth-
ing. The crack cocaine weighed approximately 61 grams.
In the meantime, Chicago police officers had followed the
Impala away from the parking lot, stopped it, and eventu-
ally arrested Justin Gardner (defendant’s supplier). All of
the crack cocaine purchased by the CI from the de-
fendant was analyzed and confirmed to be crack cocaine.
On April 6, 2009, Foster was charged with one count
of knowingly and intentionally distributing 50 grams or
No. 11-3097 7
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
On May 14, 2009, a federal grand jury returned a super-
seding indictment, charging Foster and another de-
fendant with narcotics trafficking-related offenses. The
earlier complaint was dismissed on the government’s
motion. On July 30, 2009, the grand jury returned a
second superseding indictment charging Foster and
another defendant with narcotics-trafficking offenses.
Foster was charged in Count One with knowingly and
intentionally distributing 5 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1); in Counts Two,
Three, Four, and Six with knowingly and intentionally
distributing 50 grams or more of cocaine base, in viola-
tion of 21 U.S.C. § 841(a)(1); and in Count Five with
unlawfully possessing a firearm as a felon, in violation
of 18 U.S.C. § 922(g)(1). On August 17, 2009, the gov-
ernment filed a second notice of its intention to seek
an enhancement of the defendant’s sentence pursuant
to 21 U.S.C. § 851.
On November 12, 2009, the government provided
information to the defense suggesting that the CI and one
of the agents had provided incorrect testimony to the
grand jury regarding the amount of money that was
exchanged in one of the drug transactions.1 The district
court determined that sufficient probable cause existed
1
Apparently, the CI had a secondary deal with Foster to steal
money from ATF. Relatedly, ATF Agent Mask stated an inac-
curate number before the grand jury when he discussed
the amount of money that was exchanged during one par-
ticular transaction. However, the defense did not claim that
Agent Mask knowingly misrepresented the number.
8 No. 11-3097
such that the inaccurate testimony did not prejudice
the defendant’s right to a probable cause determination
by a grand jury, reasoning that the evidence, even
cleansed of such inaccuracies, was overwhelming as
to probable cause.
On November 16, 2009, the government orally moved
to dismiss Counts Three and Five of the second super-
seding indictment, and the district court granted the
motion. Foster entered pleas of not guilty as to all counts,
and the case proceeded to a jury trial. On November 20,
2009, a jury convicted the defendant on Counts One,
Two, Four and Six. On August 1, 2011, the district court
sentenced the defendant to serve concurrent terms of
240 months’ imprisonment on Counts One, Two, Four,
and Six, followed by concurrent terms of 10 years’ super-
vised release on each of the four counts.
III. Discussion
A. The district court did not err in admitting recorded
statements of the non-testifying confidential infor-
mant and the testimony of the ATF Agents
(i) Waiver, Forfeiture, and Standard of Review
Foster first argues that the district court violated Rule 802
of the Federal Rules of Evidence and the Confrontation
Clause of the Sixth Amendment by improperly admitting
statements of the non-testifying CI and the testifying
ATF agents. He notes that the district court ruled defini-
tively in a pretrial order in response to the government’s
motion in limine that: (1) the CI’s out-of-court recorded
No. 11-3097 9
statements were admissible subject to the prosecution
laying a proper foundation, and (2) the testimony of the
CI was admissible to challenge the truth of any state-
ments at issue or for the purposes of impeachment.
Foster initially had objected to the admission of the
CI’s recorded conversations with defendant on Confronta-
tion Clause and foundational grounds in his response
to the government’s motion in limine. However, Foster
did not object based on hearsay or Confrontation Clause
grounds at trial when the recordings were played. Never-
theless, he suggests that under the Federal Rules of Evi-
dence, he was not required to object again below to pre-
serve the Confrontation Clause issue for appeal. Fed. R.
Evid. 103(b) (where a court “rules definitively on the
record—either at or before trial—a party need not renew
an objection or offer proof to preserve a claim of error
for appeal”).
The government acknowledges that Foster initially
raised both Confrontation Clause and foundational ob-
jections to the admission of such testimony. However,
it argues that during the pretrial conference defense
counsel advised the district court that the parties
were attempting to reach an agreement regarding the
removal of testimonial statements from the recordings,
which would “save [the court] . . . the trouble of ruling on
it.” The government subsequently removed the state-
ments to which the defendant objected, after which the
focus of the district judge’s conversations with the
parties shifted to foundational requirements.
The government argues that Foster accordingly
waived any Confrontation Clause objection by with-
10 No. 11-3097
drawal, such that appellate review is improper. See
United States v. Cunningham, 405 F.3d 497, 502 (7th Cir.
2005) (“Although Cunningham’s trial counsel initially
objected [at trial] to the admission of the pictures, he
later explicitly withdrew his objection and furthermore
failed to make any additional objections” and accord-
ingly waived the objection). We explained in United
States v. Pittman that where a party’s “trial counsel af-
firmatively represented that he had no objection to the
admission of evidence,” the issue is waived. 319 F.3d
1010, 1012 (7th Cir. 2005) (citing United States v. Cooper, 243
F.3d 411, 416-17 (7th Cir. 2001)). There, while Pittman’s
counsel “initially reserved the right to file a responsive
brief” on the issue of whether certain evidence was ad-
missible, “he later stated at trial that he had no objection to
the use of the evidence.” Id. at 1011. In Cooper, the case
upon which Pittman relies for the proposition that ex-
plicitly withdrawn objections are waived, the defense
counsel explicitly withdrew his motion in limine which
had objected to the admission of certain evidence. 243
F.3d at 414 (“I think I will withdraw the entire motion.
How’s that sound?”) (internal quotation marks omitted).
In the present case, during a pretrial conference
to address the government’s motion in limine, Foster’s
counsel said the following regarding the CI’s recorded
statements:
Judge, to the degree that those recordings are—have
a hearsay element to them, we’ve—we have had a
discussion [with the government] earlier this morn-
ing. We think we can resolve most of our issues with
No. 11-3097 11
the transcripts in the content of the—of the recordings.
If we can resolve that and take out anything that is
testimonial from those recordings, then I think we
will not have an objection to that.
Further, Foster’s counsel stated that “[i]f law enforce-
ment agents can lay the foundation for their knowledge
and so long as there is not any—any testimony—state-
ments in it, then we don’t have an objection.” While
these statements tend to indicate that Foster believed
that he and the government had resolved, or at least
could resolve, his Confrontation Clause objection
through an agreement, Foster notes that the agreement
was effectively undermined when the district court
later permitted the CI to refuse to answer any ques-
tions related to issues upon which he testified in grand
jury proceedings.
The record does not conclusively indicate that Foster
explicitly withdrew the Confrontation Clause objections
presented in his response to the government’s motion
in limine. Unlike the defendant in Pittman, Foster not only
reserved the right to file a responsive brief detailing
his objections; he actually filed a response to the gov-
ernment’s motion in limine outlining his precise objec-
tions. And unlike the defendant in Cooper, Foster never
explicitly withdrew his response to the government’s
motion in limine. In addition, his statement that “so long
as there is not any—any testimony—statements in it,
then we don’t have an objection,” can reasonably be
understood as referring to continuing Confrontation
Clause concerns regarding the admission of testimonial
12 No. 11-3097
statements at trial. Foster’s statements during the pretrial
conference regarding his objections were conditional in
nature, suggesting only that if testimonial statements
were removed from the recorded conversations, he
would not have Confrontation Clause objections. Such
statements do not amount to an explicit withdrawal of
the objection signaling that he intentionally abandoned
the issue. Thus, because the court issued a final ruling
on the motion in limine, determining that the recorded
conversations were admissible, Foster did not need to
raise another objection to preserve the issue for appel-
late review. See United States v. Schalk, 515 F.3d 768, 776
(7th Cir. 2008) (“A definitive, unconditional ruling in
limine preserves an issue for appellate review, without
the need for later objection.”) (internal citation omitted).
Foster has not waived these arguments.
The government argues that even if Foster did not
waive his Confrontation Clause objection, he at least
forfeited the argument. The government notes that the
“specific ground for reversal of an evidentiary ruling on
appeal must . . . be the same as that raised at trial,” United
States v. Swan, 486 F.3d 260, 264 (7th Cir. 2007), and sug-
gests that the only ground raised below was founda-
tional. Because, in its view, Foster failed to object to the
admission of the recorded conversations on Confronta-
tion Clause grounds below, the government claims
that the forfeited objection requires only plain error
review. See Schalk, 515 F.3d at 776.
However, the government advances no additional
arguments, beyond those expressed in support of its
waiver claim, demonstrating that Foster failed to raise
No. 11-3097 13
his Confrontation Clause objection below. Indeed, the
government acknowledges that Foster raised Confronta-
tion Clause concerns in his response to the govern-
ment’s motion in limine. Accordingly, the government’s
suggestion that “no objection was made that would put
the district court (and the other party) on notice of the
objecting party’s concern,” Shalk, 515 F.3d at 776, is unper-
suasive. The government’s claim that Foster forfeited
the argument such that plain error presents the appro-
priate standard of review is therefore unavailing.
While evidentiary rulings generally are reviewed for
abuse of discretion, see e.g., United States v. Hosseini, 679
F.3d 544, 556 (7th Cir. 2012), we “review de novo a
district court ruling that affects a defendant’s Sixth
Amendment rights,” United States v. Nettles, 476 F.3d 508,
517 (7th Cir. 2007) (internal citation omitted). Because
Foster neither waived nor forfeited his Confrontation
Clause objection, we analyze his claim de novo.
(ii) Non-testifying CI
Foster argues that the government offered the non-
testifying CI’s recorded statements for their truth. Accord-
ingly, he suggests that the statements are hearsay and
that their admission violated the Confrontation Clause.
Hearsay is not admissible unless “a federal statute, these
rules, or other rules prescribed by the Supreme Court
provide otherwise.” Fed. R. Evid. 802. Even if hearsay is
admissible under the Federal Rules of Evidence, the
Confrontation Clause may pose a bar to its admission. We
have explained that in the context of the admission of
14 No. 11-3097
testimonial hearsay in criminal trials,“the Sixth Amend-
ment’s Confrontation Clause bars the admission of such
testimonial statements unless the declarant is unavailable
and the defendant had a prior opportunity for cross-
examination.” United States v. Bermea-Boone, 563 F.3d
621, 625 (7th Cir. 2009) (quoting United States v. Tolliver,
454 F.3d 660, 664-65 (7th Cir. 2006) (citing Crawford v.
Washington, 541 U.S. 36, 68 (2004))). However, where
“there is no hearsay, the concerns addressed in Crawford
do not come in to play,” id. at 626 (internal citation omit-
ted), as the Confrontation Clause “does not bar the use
of testimonial statements for purposes other than estab-
lishing the truth of the matter asserted.” Crawford, 541
U.S. at 59 n. 9.
The admission of recorded conversations between
informants and defendants is permissible where an in-
formant’s statements provide context for the defendant’s
own admissions. “[S]tatements providing context for
other admissible statements are not hearsay because
they are not offered for their truth.” United States v. Van
Sach, 458 F.3d 694, 701 (7th Cir. 2006); see also United
States v. York, 572 F.3d 415, 427 (7th Cir. 2009) (“[P]laying
the tapes of those conversations for the jury does not
violate the Confrontation Clause so long as those tapes
are offered to provide context for the defendant’s own
admissions.”); Nettles, 476 F.3d at 517 (“[W]hen statements
are merely offered to show context, they are not being
offered for the truth of the matter asserted, and therefore,
Crawford does not require confrontation.”). In United
States v. Gaytan, for example, the government intro-
duced recordings at trial of two controlled purchases
No. 11-3097 15
conducted using a CI, without calling the CI as a wit-
ness. 649 F.3d 573, 576 (7th Cir. 2011). On appeal, we
rejected a challenge on hearsay and Confrontation
Clause grounds to the admissibility of the CI’s recorded
statements, explaining that the “government offered the
challenged statements not for their truth but to put
[the defendant’s] own words in context and to help the
jury make sense of [the defendant’s] reaction to what [the
CI] said and did.” Id. at 580. The Gaytan court noted,
however, that a CI’s out-of-court statements “might
implicate the Confrontation Clause if the circumstances
suggest that the informant used those statements to ‘put
words into [a defendant’s] mouth.’ ” Id. (quoting Nettles,
476 F.3d at 518).
Foster claims that the admission of several of the CI’s
recorded statements constitute Crawford violations. Re-
garding the February 12, 2009 controlled purchase,
Foster argues that the CI’s recorded statements, “[t]hat’s
56. Supposed to be 60” and “4 grams. For . . . 56. Quantity
is off” are hearsay. He suggests that these statements
were offered as proof that Foster actually provided 56
grams of cocaine, that the CI was actually weighing that
cocaine, and that the quantity was in fact off. The govern-
ment counters that these statements were instead
simply relevant to provide context for the defendant’s
admissions, suggesting that in the absence of the CI’s
statements, the defendant’s statements which followed
would have been unintelligible to the jury.
According to the transcripts, the statements were
made in the following context: the defendant had
16 No. 11-3097
entered the CI’s vehicle and asked the CI if he had
“brought the scale,” explaining that he could “weigh it”
when the drugs arrived. Upon returning to the vehicle
(allegedly with the drugs), the defendant stated: “Alright.
He said give him 17 . . . for that, man. That’s two.
Two whole.” The deal was for two ounces. The CI then
allegedly weighed the drugs and determined that they
were four grams short, which prompted the CI to say
“That’s 56. Supposed to be 60” and claim that the
quantity was off. In response, the defendant lowered
the price from seventeen hundred dollars to sixteen
fifty, stating “Give me sixteen fifty. That’s why I say 17 . . .
It’s originally 17.”
Here, the CI’s statement regarding the weight was not
offered to show what the weight actually was or was
supposed to be (the exact number is immaterial), but
rather to explain the defendant’s acts and make his state-
ments intelligible. The defendant’s statement to “give
[him] sixteen fifty” (because the original price was 17)
would not have made sense without reference to the
CI’s comment that the quantity was off. Because the
statements were admitted only to provide context,
Crawford does not require confrontation.
Regarding the February 24, 2009 recorded state-
ments, Foster challenges the admission of the following
statements by the CI:
Uh you know, last time the quality was alright, just
the qual . . . I mean the quantity, not the qual . . .
the quality was fine, but just the quantity, you
know . . . . We just need, you know, go to get the
weight correct.”
No. 11-3097 17
In response to these comments by the CI, Foster said,
“they liked it? Okay good,” and then said that the
weight would be correct this time: “He’s got it right. He
better have it right.” Foster argues that these statements
were hearsay because they were utilized in the govern-
ment’s closing argument and to show that Foster was
guilty of the offense charged. Here again, the recorded
statements were offered to provide context: the state-
ments were not offered to show that the drugs were
actually of a high quality (the truth of the matter as-
serted). Rather, they were used to clarify the defendant’s
responses for the jury, including his focus on ensuring
that his supplier provided the right quantity on that
occasion. Whether the quantity actually was correct
is again immaterial.
Regarding the March 20, 2009 transaction, Foster chal-
lenges the admission of the following statements made
by the CI:
Look at me countin’ this ‘cause when he comes here,
I’m gonna weigh it, I’m gonna get up outta here.
Look[.] Look.
and
[S]ee about the weight before you go anywhere. Well
it’s supposed to be (UI).
These statements were made while the CI was in the
car with the defendant and expressing anxiety about the
wait for the defendant’s supplier. The statements were
offered to help the jury understand Foster’s state-
ments, signaling that defendant’s comments, “[w]ell how
18 No. 11-3097
much this?” and “I wasn’t watchin,” refer to the CI’s
payment for the delivery and the notion that he did not
know how much money the CI was giving him because
he hadn’t watched him count it. Foster argues that the
statements were offered to prove that the CI had money
for Foster and that Foster had cocaine in his possession.
However, Foster’s statements would have been unintel-
ligible without reference to the CI’s statements; for ex-
ample, jurors would be at a loss as to what the
defendant “wasn’t watching.” The CI’s statements were
offered only to provide context.
Finally, with respect to the April 2, 2009 transaction,
Foster challenges the admission of the following state-
ments made by the CI:
See because that, that’s the reason I wanted to, uh, you
know, meet him. Not, not to cut you out. I would still
pay you, still come through you . . . I call you this
number, tell you deliver a quarter ounce. You know,
give it, you give him the price, he pays you. You
know, you pay the money, be delivered to me to
you, but he be (UI) there (UI) have nothin’ to do
with this shit.
These statements formed part of a longer conversation
between the CI and Foster concerning Foster’s dealings
with his supplier and the delivery delays. Foster ex-
plained that the delays were not his fault because the
supplier had told him that he was on his way. Ap-
parently, the defendant and the CI waited a long time
for the supplier to arrive for the delivery, and after one
hour, the CI and Foster began arguing about how long
No. 11-3097 19
the deal was taking. Foster argues that these state-
ments show how the CI would prefer to conduct transac-
tions with the defendant. However, the statements
were offered to provide relevant background to the de-
fendant’s responses, enabling the jurors to comprehend
the conversation as a whole. The defendant’s responses
to these comments by the CI were brief (e.g., “say that
again” and “To where? Deliver where?”) and would
be unintelligible absent the full context. Because the
challenged statements were offered only to provide
context, Crawford does not require confrontation.
Unlike the concerns this court described in Nettles, the
aforementioned recorded statements do not amount to
instances of the CI “put[ting] words in [the defendant’s]
mouth.” 476 F.3d at 518. Nor did the CI’s recorded state-
ments “try to persuade [the defendant] to commit more
crimes in addition to those that [defendant] had
already decided to commit.” Id. at 518. Here, as in Gaytan,
“the government offered the challenged statements not
for their truth but to put [the defendant’s] own words
in context and to help the jury make sense out of
his reaction to what [the CI] said and did.” 649 F.3d at
580. Further, the jury was provided with instructions
by the court indicating that the CI’s recorded state-
ments were not to be considered for the truth of the
matter asserted, but instead only to provide context
for the defendant’s admissions. See Van Sachs, 458 F.3d at
701-02 (district court’s limiting instruction relevant to
determination that Confrontation Clause rights were not
violated). Because “there is no hearsay, the concerns
20 No. 11-3097
addressed in Crawford do not come in to play.” Bermea-
Boone, 563 F.3d at 626. The district court’s admission
of these recorded statements was not in error.
(iii) ATF Agents
Foster also argues that the admission of testimony
from various ATF agents violated his Confrontation
Clause rights. He suggests that the agents’ testimony
amounted to “the equivalent of” out-of-court statements
by the non-testifying CI, which in turn violated his Con-
frontation Clause rights. He argues that the following
statements by various ATF agents elicited vicarious
“nonverbal conduct” statements by the CI:
Prosecutor: And when you and the confidential in-
formant arrived at the debriefing spot, what, if any-
thing, did the informant give you?
Agent [Jacob J.] Casali: The informant turned over to
me the crack cocaine that had been purchased from
the defendant, as well as the transmitter and the
electronic scale, at which time I removed the re-
cording device from his vehicle, as well—he also
turned over any—any—any unexpended funds.
and
Prosecutor: When you and the informant arrived at
the debriefing spot, what, if anything, did the infor-
mant give you?
Agent Casali: The informant turned over to me unex-
pended funds, the narcotics that he had just pur-
No. 11-3097 21
chased, the portable electronic scale, the transmitter;
and I removed the recording device from his vehicle.
and
Prosecutor: What, if anything, did the informant
give you?
Agent Mask: He gave me a package of suspected
crack cocaine in a clear plastic bag.
and
Prosecutor: Would you tell us, Special Agent Casali,
what you received back from the informant?
Agent Casali: The crack cocaine that he had
purchased, the electronic scale, the transmitter, and
any unused government funds.
Foster claims that the above statements constitute
inadmissible hearsay, relying on United States v. Walker
for the proposition that “[a] prosecutor surely knows
that hearsay results when he elicits from a government
agent that ‘the informant said he got his gun from X’ as
proof that X supplied the gun.” 673 F.3d 649, 658 (7th
Cir. 2012). However, Walker involved our finding that
the admission of testimony regarding what a CI told an
agent about the location of a firearm was improper. See
id. at 658. In the present case, neither Agent Mask nor
Agent Casali refer to any out-of-court statements by the
CI; instead, they only describe their personal actions
and observations.
Indeed, the Walker court explicitly approved of this
sort of testimony, explaining that “[t]he government
22 No. 11-3097
was free to elicit through [the agent] that [the CI] had
given him the [firearm].” Id. Here, the government did
just that: it elicited through Agents Casali and Mask
that the CI had provided them with drugs, money, a
transmitter, and a scale. We have many times deter-
mined that testimony regarding an agent’s personal
observations does not implicate hearsay concerns. See
United States v. Pira, 535 F.3d 724, 729 (7th Cir. 2008)
(noting “the personal observations of [the] Special
Agent . . . are not in fact hearsay); United States v. Bursey,
85 F.3d 293, 296 (7th Cir. 1996) (explaining that the
officer’s “testimony about his personal observations of
and encounters with [the defendant] during his police
work do not qualify as out-of-court ‘statements’ under
the hearsay rules.”); United States v. Gandara, 586 F.2d
1156, 1158 (7th Cir. 1978) (an agent’s testimony re-
garding facts “within his own personal experience” based
on surveillance is not hearsay). The challenged testimony
in the present case exclusively concerned the agents’
personal observations and actions: the agents personally
witnessed the controlled buys, searched the CI before
and after each transaction, and followed the CI to the
debriefing location after each transaction to collect
the drugs, money, and recording equipment. Accordingly,
their own actions formed the basis for their testimony,
and their testimony did not relay “nonverbal conduct”
statements of the CI. The district court’s decision to
admit such testimony was not in error.
No. 11-3097 23
B. The district court did not err in denying defen-
dant’s request for a missing witness instruction
We review the district court’s denial of defendant’s
request for a missing witness instruction for an abuse of
discretion. United States v. Villegas, 655 F.3d 662, 669-70
(7th Cir. 2011); United States v. Morris, 576 F.3d 661, 672
(7th Cir. 2009) (“We review the district court’s refusal
to give a jury instruction for an abuse of discretion.”)
(internal citation omitted). “The district court has broad
discretion in deciding whether to give a missing
witness instruction, and we will disturb that decision
only where serious error has occurred.” United States v.
Christ, 513 F.3d 762, 773 (7th Cir. 2008) (internal citation
omitted). However, where a district court denies a
missing witness instruction because it concludes that
such an instruction is inappropriate as a matter of law,
we review that decision de novo. United States v.
Tavarez, 626 F.3d 902, 904 (7th Cir 2010). In the present
case, while Foster suggests that de novo review is appro-
priate, he has not advanced an argument that the
district court determined that the missing witness in-
struction “was inappropriate as a matter of law.” Id.The district court below stated that it was denying the
instruction based on “all the circumstances.” Thus,
we review for abuse of discretion.
“The missing witness instruction is disfavored by this
circuit, but a district court has discretion to give it in
unusual circumstances.” Id. at 904 (citing United States
v. DiSantis, 565 F.3d 354, 364 (7th Cir. 2009)). To “establish
entitlement to a missing witness instruction, a de-
24 No. 11-3097
fendant must prove two things: first, that the absent
witness was peculiarly within the government’s power
to produce; and second, that the testimony would
have elucidated issues in the case and would not
merely have been cumulative.” United States v. Gant,
396 F.3d 906, 910 (7th Cir. 2005) (quoting United States
v. Valles, 41 F.3d 355, 360 (7th Cir. 1994)).
Two business days before trial, Foster stated on the
record that he intended to call the CI to testify, although
a trial subpoena for the CI’s testimony had not yet been
issued. By then, the government had relocated the CI
out of state because of potential threats to his safety
but nevertheless agreed to accept service of the subpoena
and to produce the witness in court to testify for the
defense. That evening, after the government noticed
discrepancies regarding the amount of money the CI
claimed he had paid Foster for the crack cocaine, the
government met with the CI. It notified the CI that the
defense intended to call him as a witness and that he
would be served with a trial subpoena which would
require him to appear in court. It also informed him
that failure to appear could be grounds for contempt
and that the court might issue a warrant for his arrest.
After confronting him about the discrepancy, the CI
ultimately admitted that he had skimmed some of the
buy money the agents had given him for the controlled
transactions. The government notified the defense im-
mediately that night and the district court the following
day. The CI then sought out an attorney, who stated that
if the CI were called to testify, he would assert his
No. 11-3097 25
Fifth Amendment privilege against self-incrimination.
After hearing arguments from counsel for the CI as well as
the defense (the government took no position) and con-
firming that the government would not immunize the
CI, the district court determined that the CI could not be
compelled to testify regarding matters touched upon
during the grand jury proceedings. The defense then
asked for a missing witness instruction, which the
court denied.
The district court did not abuse its discretion in
denying Foster’s request for a missing witness instruc-
tion. Foster correctly notes that in the past we have
found that where “[o]nly the confidential informant
actually observed what happened during the controlled
buys” a CI’s testimony would “certainly have been rele-
vant.” Tavarez, 626 F.3d at 905. Thus, the CI’s testimony in
this case arguably would have been relevant, and Foster
further suggests that the defense would have been able
to elicit non-cumulative testimony regarding the dis-
crepancies between the CI’s grand jury testimony
and his statements to federal agents. However, even
assuming Foster has established that such testimony
would have been relevant and non-cumulative, the
district court correctly rejected Foster’s request for a
missing witness instruction because the witness was not
peculiarly within the government’s power to produce.
A “witness is peculiarly within the government’s power
to produce when the witness is physically available only
to the government, or where the witness’s relationship
with the government makes his testimony, in pragmatic
26 No. 11-3097
terms, available only to the government.” Christ, 513
F.3d 762, 773 (7th Cir. 2008) (internal citation omitted).
“The mere fact that [a witness] was a government in-
formant does not inevitably establish that he was prag-
matically available to testify only on behalf of the pros-
ecution.” United States v. Rollins, 862 F.2d 1282, 1298
(7th Cir. 1988) (internal citation omitted). While Foster
acknowledges that the government’s ability to grant
immunity does not make a witness who invokes the
Fifth Amendment privilege peculiarly available to the
government, see United States v. St. Michael’s Credit
Union, 880 F.2d 579, 598 (1st Cir. 1989), he argues that
an exception exists where there is a clear abuse of pros-
ecutorial discretion violating the due process clause. See
United States v. Flomenhoft, 714 F.2d 708, 713 (7th Cir. 1983).
“Such an abuse of discretion occurs when a pros-
ecutor intends to use his authority under the immunity
statute to distort the judicial fact-finding process.”
United States v. Taylor, 728 F.2d 930, 935 (7th Cir. 1984)
(internal citation omitted).
Foster argues that the government’s actions amounted
to a clear abuse of prosecutorial discretion that violated
the due process clause. Specifically, he suggests that
the government intimidated the CI through interroga-
tion so that he would not testify at trial. Foster points
out that ATF agents demanded that the CI “come
clean,” and warned him about perjury and prosecution,
as well as the consequences of lying to the government.
The CI ultimately admitted to skimming money from
the transactions and at one point began rambling inco-
herently. Upon being questioned by the government
No. 11-3097 27
regarding the details of these incidents, the CI
eventually pushed himself away from the table and
collapsed. Paramedics were called and he was not left
alone that evening out of concern for his health.
While these facts are undoubtedly dramatic, there is
no evidence that the government intentionally sought
to distort the judicial fact-finding process. The district
court determined that the witness was equally unavail-
able to both parties, explaining that “[e]verything that
is in the record in this case as far as I can see points to
the fact that the government was as surprised as anyone
to hear from the confidential informant when he was
interviewed just prior to trial that he had, in fact, been
cheating the government out of money.” The govern-
ment’s relationship with the CI undoubtedly diverged
after his admitted misconduct, at which point it cannot
be said that their former employment relationship ren-
dered him exclusively within the government’s control.
Further, “Congress has conferred the power to im-
munize witnesses uniquely upon the executive branch.”
Flomenhoft, 714 F.2d at 713. And as we have explained
before, “[r]equiring a missing witness instruction each
time the prosecution decides not to immunize a witness
would constitute a substantial judicial encroachment
upon prosecutorial discretion.” Id. at 714. Indeed, “[t]he
immunization statutes are not designed to benefit de-
fendants.” Id. at 713. The CI committed at least one
serious federal offense; the government’s decision not
to grant him immunity does not amount to a clear abuse
of prosecutorial discretion or an effort to manipulate
the fact-finding process. Because Foster has failed to
28 No. 11-3097
establish that the CI was peculiarly within the power of
the government to produce, the district court did not
err in denying the missing witness instruction.
C. The district court’s error in not applying the
Fair Sentencing Act was harmless
Foster argues that the district court’s error in not ap-
plying the Fair Sentencing Act (“FSA”) requires a re-
mand. We review questions of law affecting sen-
tencing de novo. See United States v. Powell, 652 F.3d 702,
710 (7th Cir. 2011) (reviewing de novo a defendant’s
argument that his sentence was imposed in violation of
the Fair Sentencing Act). Below, the district court ruled
that it would not apply the FSA because all of the de-
fendant’s underlying criminal conduct occurred between
February and April 2009, before the FSA was passed.
In Dorsey v. United States, 132 S. Ct. 2321 (2012), the
Supreme Court held that the FSA’s statutory penalties
apply to defendants sentenced after the statute’s effec-
tive date of August 3, 2010, even if their offense con-
duct occurred prior to August 3, 2010. The government
accordingly acknowledges that under Dorsey, because
Foster was sentenced on August 1, 2011 (after the
statute’s effective date), the district court erred by not
applying the FSA. Under the FSA, Foster’s mandatory
minimum sentence would have been 5 years, which
would have doubled to 10 years based on the career-
offender enhancement the government filed. Without
the application of the FSA, Foster was subject to a 10-year
mandatory minimum, doubled to 20 years in light of
No. 11-3097 29
the enhancement applied by the government. The
district court sentenced defendant to 20 years’ impris-
onment for each of Counts One, Two, Four, and Six,
all to run concurrently.
Under the FSA, for Count One the defendant’s super-
vised release range was 6 years up to life; for Counts Two,
Four, and Six, the defendant’s supervised release range
was 8 years up to life. Under the pre-FSA guidelines,
Foster’s supervised release range for Count One was
8 years up to life; for Counts Two, Four, and Six, his
supervised release range was 10 years to life. The
district court imposed a 10-year term of supervised
release, consisting of a term of 8 years on Count One and
10 years on each of Counts Two, Four and Six. Foster
now asks that this sentence be vacated and remanded
so that the district court may consider the application
of the FSA.
While the government acknowledges that under Dorsey
the defendant should have been sentenced within the
statutory penalties set by the FSA, it argues that a
remand is not necessary because the error was harm-
less. See United States v. Hill, 645 F.3d 900, 912 (7th Cir.
2011) (“When we are convinced that the sentence
would have been the same absent the error, we deem
the error harmless.”) (internal citation omitted); United
States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008)
(noting that before remanding a case, the court must
determine whether an error was harmless). To this end,
the government identifies language from the sen-
tencing transcript indicating that the district court would
30 No. 11-3097
have imposed the same sentence regardless of the ap-
plicability of the FSA. In response to the government
asking the district court to clarify whether under 18
U.S.C. § 3553(a) it would impose the same sentence if it
had sentenced the defendant under the FSA, the court said:
This is the sentence I would impose whether the Fair
Sentencing Act applied or not. It’s a sentencing
based upon the 3553 factors that I indicated, my
reading of the defendant’s history, the specifics of
this particular crime, the need to deter any future
crimes, which, with this defendant, means incarcera-
tion and nothing else because nothing else has
worked, and the need to protect the public, his many
victims across four states. That’s what it is based on.
I have found the total offense level of 37, Criminal
History Category VI, with a guidelines range of 360
months to life is the appropriate determination in
this case. But under either guideline determination,
applying the FSA or not, this is the sentence
I would impose.
In addition, the fact that the pre-FSA and FSA sen-
tencing frameworks yielded different statutory
mandatory minimums was explained to the district
court (though the fact that the FSA also changed the
mandatory minimum supervised released terms was not
explained to the court).
We have in the past found that where the district court
indicates that it would have imposed the same sentence
regardless of any sentencing error, the error is harmless
and a remand is not required. For example, in United
No. 11-3097 31
States v. Abbas, we determined that a sentencing error
was harmless because the sentencing judge said that
she would have imposed the same sentence even if the
Guideline at issue did not apply. 560 F.3d 660, 667 (7th
Cir. 2009). In Anderson, we likewise concluded that the
error in calculating the sentencing range was harmless
because the district court explicitly stated that it would
impose the same sentence even if its Guidelines calcula-
tions were incorrect. 517 F.3d at 965. We subsequently
explained that the “common thread in both Anderson
and Abbas is that the sentencing court firmly indicated
that it would impose the same sentence regardless of
any sentencing error.” United States v. Zahursky, 580
F.3d 515, 528 (7th Cir. 2009). Thus, the district court’s
statement that it would have imposed the same sentence
regardless of the FSA’s application in this case indicates
that the error was harmless. Further, the district court’s
statement “was not just a conclusory comment tossed
in for good measure,” but rather reflected a “detailed
explanation of the basis for the parallel result.” Hill,
645 F.3d at 912 (quoting Abbas, 560 F.3d at 667). Here,
the court explained which specific § 3553(a) factors influ-
enced its decision, including the defendant’s history, the
particular crime in question, the need for deterrence,
the need to protect the public, and the defendant’s
many victims. Because the district court explicitly
stated that it would have applied the same sentence
regardless of the FSA’s application, instead basing
its determination on the § 3553(a) factors, the error was
harmless. A remand is unnecessary.
32 No. 11-3097
IV. Conclusion
For the foregoing reasons, we A FFIRM the defendant’s
conviction and sentence.
11-28-12