United States v. Frederick Addison

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14–2515
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK C. ADDISON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-CR-30332 — Michael J. Reagan, Judge.
____________________
ARGUED MAY 26, 2015 — DECIDED OCTOBER 21, 2015
____________________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Police witnessed and videotaped
the defendant Frederick Addison participating in crack co-
caine sales at a drug house in East St. Louis, Illinois. A jury
later found him guilty of possession and distribution of co-
caine base. The evidence against Addison was strong. Never-
theless, Addison asks us to reverse his conviction and order
a re-trial because the government’s case agent testified that
he had never prosecuted the wrong person, that one of Ad-
2 No. 14–2515
dison’s co-criminals had a firearm, and that the surrounding
neighborhood contained no other drug houses. Addison ar-
gues that this testimony undermined his right to a fair trial.
We find that any error associated with the testimony about
the case agent’s record was invited. Furthermore, we find
that the gun and neighborhood testimony did not constitute
plain error. Therefore, we affirm Addison’s conviction.
I. BACKGROUND
On April 3, 2012, an undercover team of Illinois State Po-
lice officers conducted video and in-person surveillance of a
suspected drug house at 825 North 32nd Street in East St.
Louis. The agents conducted the surveillance from a build-
ing across the street. Over the course of almost two hours,
they saw and video-recorded Addison and two of his associ-
ates, Lee Grinston and Demarcus Boyd, selling drugs to sev-
eral customers.
The government played portions of the video for the jury
during Addison’s trial. Master Sergeant Joseph Beliveau, the
commander of the police surveillance team, narrated the
video and testified about what he and his team saw. In addi-
tion, Beliveau provided testimony as an expert witness con-
cerning the distribution of crack cocaine.
The video showed Grinston walking from the drug house
to the side of an abandoned house next door. He grabbed a
small package from behind some plywood covering a
ground-level window well. A short time later, Grinston
walked back to the abandoned house and concealed an ob-
ject in the same location.
When the area was clear, Agent Beliveau emerged from
his surveillance position across the street, sneaked up to the
No. 14–2515 3
side of the abandoned house, and retrieved a tan work glove
from behind the plywood covering the lower window well.
Inside he found a latex glove containing two small bags of
crack cocaine.
The video then showed a customer, James Robinson, ap-
proaching the front door of the drug house. He met briefly
with Addison at the door, and the two appeared to make an
exchange. On the way back to his car, Robinson put some-
thing in his pants pocket. As Robinson drove away, police
followed his car for about five minutes, allowing him to
drive a sufficient distance so as not to jeopardize the ongoing
surveillance. Then the police stopped his car. They found a
small amount of crack cocaine in Robinson’s pocket. He later
testified at trial that he had bought “a 20” (that is, a $20 piece
of crack cocaine) from Addison. Robinson identified himself
and Addison on the videotape as the two who were conduct-
ing the drug transaction. 1
A little later, the video showed Addison walking to the
abandoned residence adjacent to the drug house. He hid an
object behind some plywood covering an upper window,
just above the location where Grinston had placed drugs ear-
lier. Agents again moved surreptitiously across the street
and seized the object, which turned out to be a latex glove
containing 3 grams of crack cocaine.
An apparent customer then approached the drug house.
The customer handed money to Addison. Addison walked
1 The surveillance team also videotaped other apparent customers who
arrived at the drug house and likely bought drugs, but those transactions
occurred inside the house and therefore were not witnessed by the
agents or caught on tape.
4 No. 14–2515
over to the abandoned house and reached behind the ply-
wood covering the upper window. He found nothing—the
police had already taken the drugs that Addison stashed
there. Addison searched behind the plywood, in the nearby
bushes, down the front of his pants, and in the surrounding
area. When he came up empty-handed, Addison and Boyd
refunded the customer’s money.
Addison then made a phone call. A short time later, Grin-
ston arrived at the drug house, apparently to help locate the
missing drugs. Grinston searched behind the plywood along
the side of the abandoned house. The video shows Addison
wiping his hand across his throat—a gesture that Agent Be-
liveau identified as a signal to potential customers that there
was no more crack cocaine available for purchase. Beliveau
also noticed that Grinston had what appeared to be a hand-
gun in his waistband. Afraid that someone was going to get
hurt, Beliveau gave the order to end the surveillance. Agents
immediately placed Addison and Grinston under arrest.
In addition to narrating the videotaped drug transac-
tions, Agent Beliveau testified that on March 28, 2012, five
days before the surveillance operation, police conducted a
consensual search of the drug house, during which they
seized $1,439 in cash from a kitchen drawer, among other
items. Two days later, Addison telephoned Agent Beliveau
and asked him to return the money. Addison claimed he had
earned the cash from his recording business.
At the close of trial, the court instructed the jurors that
they must presume Addison innocent and that the govern-
ment had to prove his guilt beyond a reasonable doubt. The
court also told the jurors to make their decision based only
on the evidence presented at trial, to decide for themselves
No. 14–2515 5
how much credence and weight each witness’s testimony
was to be given, and to judge Agent Beliveau’s testimony in
the same way they judged the testimony of other witnesses.
The jury found Addison guilty of one count of possession
with intent to distribute cocaine base and one count of dis-
tribution of cocaine base in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(c). The district court sentenced Addison to 210
months of incarceration and 3 years of supervised release,
plus monetary penalties. Addison timely appealed.
II. ANALYSIS
Addison contends that portions of Agent Beliveau’s trial
testimony were wholly irrelevant and were introduced only
to arouse the jurors’ emotions, thereby encouraging them to
render a guilty verdict. Beliveau’s challenged testimony was
so improper, according to Addison, that it undermined his
due process right to a fair trial.
A. Testimony Regarding Beliveau’s Track Record
Addison first takes issue with a statement made by Agent
Beliveau during defense counsel’s cross-examination. Specif-
ically, Beliveau testified that he has “never … prosecuted the
wrong person.” The relevant portion of the transcript reads
as follows, with the challenged statement in italics:
Q. One of the things, of course, that you are
trained in is the importance of being accu-
rate in the information that you take down
and later relay. Is that a fair statement?
A. Accuracy? You want to be accurate, yes.
Q. Because if you are not accurate, it could lead
to the prosecution of the wrong person?
6 No. 14–2515
A. I guess if you are very inaccurate it could
lead to the prosecution of the wrong person.
Q. That would be a yes then, wouldn’t it?
A. Not necessarily.
Q. It couldn’t happen?
A. It has never happened before. I have never
been inaccurate and prosecuted the wrong per-
son.
Q. Okay. You have never been inaccurate?
A. To the point where it has prosecuted the
wrong person, no, I have not. Have I made
mistakes? Absolutely.
Q. Because, of course, when you decide to
prosecute somebody, in your opinion you
have the right person?
A. In all honesty, we present the case to the
State’s Attorney and they decide if we have
the evidence to prosecute a person….
Q. But you first make the determination that
you believe you have the right person?
A. Sure.
Even assuming the trial court erred by allowing Beliveau
to testify about his track record, the error was invited by de-
fense counsel. “It is well-settled that where error is invited,
not even plain error permits reversal.” United States v. Ful-
ford, 980 F.2d 1110, 1116 (7th Cir. 1992). Here, it was Addi-
son’s counsel, not Beliveau, who introduced the idea of pros-
ecuting the wrong person. Initially, Beliveau answered unob-
jectionably, saying he guessed it was possible to make such a
mistake. Defense counsel could have moved on at that point,
No. 14–2515 7
but instead he pushed further, apparently hoping to get a
more damaging admission. He goaded the witness with an
open-ended question (“It couldn’t happen?”), not knowing
what the answer would be. Addison now argues that the an-
swer he received exceeded the scope of the question. He
claims that defense counsel was asking only about the im-
portance of being accurate generally, not about Beliveau’s
own track record. That is splitting hairs. Beliveau responded
naturally and foreseeably by drawing on and referring to his
own experience. He may not have given the response de-
fense counsel was looking for, but that is one of the dangers
of cross-examination.
Moreover, defense counsel’s line of questioning was pur-
poseful; it was part of a strategy to challenge the evidence
against Addison. During cross-examination, for example,
counsel challenged Beliveau about how many of the hand-
to-hand transactions he and his agents observed were con-
ducted by Addison himself. Counsel also questioned wheth-
er the agents could see from across the street “what, if any
kind of drug, [was] in the hand of the person involved in the
transaction.” Defense counsel later adverted back to Be-
liveau’s testimony during closing argument:
Do you recall the Government’s first witness, Mas-
ter Sgt. Beliveau, and recall when I would ask him
a question, a question that could be answered with
a simple yes or no? It got to the point where I felt
like if I had said Master Sgt. Beliveau, is it still sun-
ny outside, he would say no, it is cloudy, and that
proves that your client possessed crack cocaine.
Look at how somebody is holding their hand. That
means they have crack cocaine. Only possible ex-
planation. Have we ever prosecuted an innocent
8 No. 14–2515
person? Oh, no, we couldn’t do that, couldn’t hap-
pen.
In short, defense counsel opened the door to Beliveau’s
testimony about his track record and then relied on that tes-
timony in closing to point out the alleged weakness of the
government’s case. It is not our job to rescue Addison from
the consequences of that strategic choice. See id. (holding that
trial court “did not commit reversible error by failing to res-
cue Fulford from his questionable strategy of introducing
such tangential evidence”); United States v. Hall, 109 F.3d
1227, 1231 (7th Cir. 1997) (holding that defendant had “no
ground for objection” to evidence of gang affiliation where
“it was his counsel that brought out the gang affiliation tes-
timony”). Any error was invited.
B. Testimony Regarding the Gun and Neighborhood
The second and third portions of disputed testimony
came out during the government’s direct examination of
Agent Beliveau. In the course of explaining why he termi-
nated the surveillance operation when he did, Beliveau ex-
plained that Grinston appeared to have a gun. Defense
counsel objected on grounds of irrelevance, but the court
overruled the objection. The transcript reads in pertinent
part:
Q. Your Honor, may we play the video again?
Stop, please. Okay, at this point what did
you see?
A. At this point agents exited their vehicles
and placed Mr. Grinston and Mr. Addison
in custody.
Q. Is it fair to say by placing them into custody
the surveillance ended?
No. 14–2515 9
A. Yes, it did.
Q. Who made that call?
A. I made the call.
Q. Why did you make that call?
A. When Mr. Grinston returned to the resi-
dence and exited his vehicle, I immediately
noted that—
[DEFENSE COUNSEL:] Objection, Your Honor. Mr.
Grinston is not on trial here. What this officer may
or may not, or some other officer may or may not
have found on Mr. Grinston is not relevant in terms
of my client.
THE COURT: Your response?
[PROSECUTION:] What was found on Mr. Grin-
ston was the reason why this investigation came to
a halt, otherwise they would have continued with
the surveillance and it would explain why they de-
cided to end at this point.
THE COURT: Okay, objection is overruled. He can
testify as to what he personally observed.
A. As Mr. Grinston exited his vehicle upon re-
turning to the residence, I immediately not-
ed that he had what appeared to be a hand-
gun in his waistband. While watching the
next couple of minutes, it appeared to me
that Mr. Grinston was extremely unhappy
and I was fearful someone was going to get
hurt or blamed for taking the crack cocaine
from that residence.
Beliveau then provided the third piece of challenged tes-
timony, this time concerning the neighborhood surrounding
10 No. 14–2515
the drug house where Addison was arrested. The govern-
ment’s direct examination continued:
Q. Sergeant, were there other houses on this
street that were not drug houses or aban-
doned buildings?
A. Yes, many.
Q. Were people living in the other houses?
[DEFENSE COUNSEL:] Objection, Your Honor.
There is no relevance to this.
THE COURT: Overruled.
A. Can you repeat the question?
Q. Sure. Were people living in the other hous-
es?
A. Yes, they were.
Q. As far as you know, were the residents in
the other houses selling drugs or buying
drugs?
A. No, they were not to my knowledge.
Addison argues on appeal that the gun and neighbor-
hood testimony not only were irrelevant but also infringed
on his right to a fair trial. According to Addison, this testi-
mony was “used to improperly arouse the jurors’ emotions”
and may well have caused them to decide the case “on an
improper basis.”
Addison did not raise this constitutional objection below,
and his relevance objections were insufficient to preserve the
issue. See United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.
1988) (“To preserve an issue for appellate review, a party
must make a proper objection at trial that alerts the court
No. 14–2515 11
and opposing party to the specific grounds for the objec-
tion.”). We therefore review for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P. 52(b). Under
that exacting standard, Addison must show (1) that there
was an error; (2) that it was plain; and (3) that it affected his
substantial rights. United States v. Irby, 558 F.3d 651, 655 (7th
Cir. 2009) (citing Olano, 507 U.S. at 732). Even then, we will
exercise our discretion to correct the error only if staying our
hand would result in a “miscarriage of justice.” Id.It is a fundamental principle of our criminal law that a
defendant is presumed innocent. Taylor v. Kentucky, 436 U.S.
478, 483 (1978). The burden is on the government to over-
come that presumption by producing evidence and convinc-
ing the jury beyond a reasonable doubt. Id. at 483 n.12.
Moreover, the defendant is “entitled to have his guilt or in-
nocence determined solely on the basis of the evidence ad-
duced at trial.” Id. at 485. Thus, we have held that the pre-
sumption of innocence is violated “when presentation of ev-
idence at trial affects the quantum of proof required for con-
viction or when the jury is encouraged (or allowed) to con-
sider facts which have not been received in evidence.” United
States v. Garcia, 439 F.3d 363, 367 (7th Cir. 2006).
In Taylor, the trial court refused to instruct the jury on the
presumption of innocence and the indictment’s lack of evi-
dentiary value. 436 U.S. at 479. In addition, the prosecutor in
his closing argument asked the jury to draw inferences from
“facts” not in evidence. The prosecutor commented, for ex-
ample, that the defendant “like every other defendant who’s ev-
er been tried who’s in the penitentiary or in the reformatory
today” is entitled to a presumption of innocence. Id. at 486.
The Supreme Court reversed the conviction because it found
12 No. 14–2515
a “genuine danger” that the jury convicted the defendant
based on extraneous considerations such as his indictment
or his status as a defendant, rather than on the basis of the
evidence at trial. Id. at 487–88.
The Supreme Court has since emphasized that its deci-
sion in Taylor was “expressly limited to the facts.” Kentucky v.
Whorton, 441 U.S. 786, 789 (1979). Whether a trial court’s fail-
ure to give a jury instruction or to take some other action in a
given case undermines the defendant’s right to a fair trial
depends on the “totality of the circumstances.” Id. at 788–89.
In general, errors at trial do not rise to constitutional dimen-
sions where the evidence weighs strongly against the de-
fendant and the trial court properly instructed the jury. See
United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006); Gar-
cia, 439 F.3d at 368; United States v. Cornett, 232 F.3d 570, 575
(7th Cir. 2000).
Applying these principles, we find no plain error in Ad-
dison’s case. As an initial matter, we note that the district
court properly instructed the jury regarding Addison’s pre-
sumption of innocence and the government’s burden to
prove his guilt beyond a reasonable doubt. While there is a
possibility that the jury considered the gun and neighbor-
hood testimony in its decision to convict, the fact remains
that the evidence against Addison was overwhelming.
Agents personally witnessed him selling drugs and caught
the transactions and other incriminating behavior on video.
One of his own buyers (James Robinson) testified against
him. A plain error “affects substantial rights” under Rule
52(b) only if it affected the outcome of the trial proceedings.
See United States v. Baker, 655 F.3d 677, 681 (7th Cir. 2011).
The challenged testimony here did not—Addison would
No. 14–2515 13
have been convicted even without it. For the same reason,
leaving his conviction in place will cause no miscarriage of
justice. See United States v. Patterson, 241 F.3d 912, 913 (7th
Cir. 2001) (“[W]hen the evidence of guilt is overwhelming a
miscarriage of justice is very hard to demonstrate.”).
III. CONCLUSION
We therefore AFFIRM Addison’s conviction.