United States v. Rondell Freeman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1170
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONDELL FREEMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07-cr-00843 — Joan H. Lefkow, Judge.
____________________
ARGUED NOVEMBER 12, 2015 — DECIDED MARCH 9, 2016
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. In 2009, Rondell Freeman and
several codefendants were convicted on various counts
stemming from their participation in a Chicago drug con-
spiracy. After learning that the government had knowingly
used false testimony at trial, the district court vacated the
defendants’ convictions on the conspiracy charged in Count
1 of the indictment. The government appealed, and we af-
firmed in United States v. Freeman, 650 F.3d 673 (7th Cir.
2 No. 15-1170
2011). But the district court also left intact the defendants’
convictions on a number of other counts that incorporated
the conspiracy charged in Count 1 as a necessary element.
The result was an anomaly: with the conspiracy count
dismissed, how could the convictions dependent on the con-
spiracy’s existence remain standing? We recently answered
that question for two of Freeman’s codefendants in United
States v. Wilbourn, 799 F.3d 900 (7th Cir. 2015), where we
held that the dismissal of the conspiracy count did not, by
itself, necessitate dismissing the remaining counts encom-
passing the conspiracy. Like his codefendants before him,
Freeman argues on appeal that the district court should have
vacated his conspiracy-based convictions in light of its dis-
missal of the conspiracy charge. He also challenges his sen-
tence. For the reasons that follow, we affirm.
I. BACKGROUND
In 2007, Freeman and fourteen codefendants were indict-
ed on numerous charges related to Freeman’s operation of a
drug ring at the now-razed Cabrini-Green housing projects
in Chicago’s Near North Side.1 Freeman proceeded to trial
and was convicted on multiple counts, including conspiracy
to traffic narcotics (Count 1), possessing a firearm in further-
ance of the conspiracy (Count 8, or the “gun count”), and us-
ing a telephone in furtherance of the conspiracy (Counts 4–5
and 16–18, or the “phone counts”). Several of Freeman’s
codefendants, including Brian Wilbourn and Adam Sanders,
1 We thoroughly discussed the facts and circumstances underlying
Freeman’s convictions in both Freeman and Wilbourn, and we recount
here only those facts necessary to explain the issues raised in this appeal.
No. 15-1170 3
were also convicted of conspiracy and related offenses based
on their involvement in Freeman’s drug scheme.
It eventually came to light that the prosecution had
knowingly relied on false testimony from one of its main
witnesses, Senecca Williams, to secure the defendants’ con-
spiracy convictions. As a result, the district court dismissed
the conspiracy count and vacated the conspiracy convictions
for all defendants, and we affirmed. Freeman, 650 F.3d at 683-
–84. At the same time, the court found that Williams’s false
testimony did not materially affect the jury’s guilty verdicts
on a number of other counts that embraced the conspiracy,
including the gun and phone counts against Freeman. The
judge therefore denied Freeman’s motion for a new trial on
those counts, and proceeded to sentence Freeman based on
his remaining undisturbed convictions.
In determining the amount of drugs attributable to Free-
man under the Sentencing Guidelines, the district court re-
lied primarily on the trial testimony of Ralph LaSalle.
LaSalle testified that he supplied Freeman with at least one
to two kilograms of cocaine per month over a period of
about five years while the conspiracy was in effect. LaSalle
testified that he typically supplied these drugs to Freeman
through a middleman named David McClinton. In its May
2013 sentencing order, the court found LaSalle’s testimony
credible and conservatively estimated that Freeman was re-
sponsible for 8.4 or more kilograms of cocaine base, 100
grams of heroin, and 53.8 grams of marijuana, which result-
ed in a base offense level of 34. The court expressly declined
to consider any of Senecca Williams’s testimony to deter-
mine Freeman’s relevant conduct for sentencing purposes.
4 No. 15-1170
Before the final sentencing hearing in December 2014,
Freeman filed a supplemental affidavit signed by David
McClinton, the purported intermediary between Freeman
and LaSalle. McClinton acknowledged that he was a former
associate of LaSalle, but contrary to LaSalle’s testimony, de-
nied that he had ever engaged in any drug transactions with
Freeman. McClinton also stated that LaSalle had once con-
fided to him that he “was going to lie about [Freeman] to get
out of jail.” At the sentencing hearing, Freeman urged the
court to reconsider its drug-quantity calculation in light of
McClinton’s affidavit. Freeman also brought McClinton to
the hearing to testify. The court considered the statements in
McClinton’s affidavit and the purpose for which his pro-
posed testimony was being offered, but ultimately continued
to find LaSalle’s trial testimony credible and so concluded
that McClinton’s testimony was unnecessary. The court stat-
ed:
I would, if I heard from [McClinton], have no
basis to say he’s more believable than Mr.
LaSalle. And Mr. LaSalle sat here, and the jury
heard him testify, and assessed his credibility,
and I heard him too. And the jury believed him
enough to convict based on his testimony. And
I relied on his testimony in determining the
drug amount.
McClinton did not testify at the hearing, and the court
reaffirmed its earlier drug-quantity calculation of May 2013
and sentenced Freeman to 164 months in prison.
On appeal, Freeman challenges the district court’s denial
of his motion for a new trial on the gun and phone counts,
arguing that the court’s dismissal of the conspiracy charged
No. 15-1170 5
in Count 1 required the concomitant dismissal of the related
charges that included the conspiracy as a necessary element.
He further argues that the district court violated his right to
due process at sentencing by basing its drug-quantity de-
termination on the unreliable testimony of LaSalle, and by
refusing to allow McClinton to testify at the sentencing hear-
ing.2 We consider each argument in turn.
II. ANALYSIS
A. Freeman’s convictions on the gun and phone counts
We review de novo a district court’s denial of a motion
for acquittal, United States v. Dvorkin, 799 F.3d 867, 879 (7th
Cir. 2015), and the denial of a motion for a new trial for
abuse of discretion, United States v. Whiteagle, 759 F.3d 734,
756 (7th Cir. 2014). See also United States v. Murphy, 406 F.3d
857, 861 (7th Cir. 2005) (“[A] trial judge should reverse a jury
verdict only if, viewing the evidence in the light most favor-
able to the prosecution, the record contains no evidence on
which a rational jury could have returned a guilty verdict.”).
Freeman was convicted on one count of knowingly pos-
sessing a firearm in furtherance of a drug-trafficking offense,
in violation of 18 U.S.C. § 924(c), and on five counts of know-
ingly and intentionally using a telephone to facilitate the
commission of a narcotics offense, in violation of 21 U.S.C.
§ 843(b). Under each of these statutes, proof of the predicate
drug offense is an element that must be proven beyond a
reasonable doubt. See 18 U.S.C. § 924(c); 21 U.S.C. § 843(b);
2 Initially, Freeman also challenged the manner in which the district
court addressed a report of premature jury deliberations, but he aban-
doned that issue at oral argument in light of our holding in Wilbourn that
the district court properly handled the matter. See 799 F.3d at 913–14.
6 No. 15-1170
see also Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). A
conviction for the predicate offense, however, is not re-
quired. See Young v. United States, 124 F.3d 794, 800 (7th Cir.
1997), as amended (Aug. 22, 1997) (“Many statutes build on
predicate offenses whether or not the defendant is or has
been convicted of the other crimes.”).
According to Freeman’s indictment, the drug conspiracy
charged in Count 1 is the predicate offense for the gun and
phone counts. Freeman contends that the district court’s
dismissal of the conspiracy charge necessitated the simulta-
neous dismissal of the remaining charges that were factually
and legally dependent on the existence of the conspiracy. He
thus argues that he was entitled to acquittal (or a new trial)
on the gun and phone counts once the predicate conspiracy
charge was dismissed.
Two of Freeman’s codefendants recently raised the same
argument in Wilbourn. Like Freeman, codefendants Wil-
bourn and Sanders were convicted on one count of partici-
pating in the Freeman drug conspiracy, as well as several
phone counts that included the conspiracy as a predicate of-
fense. In considering their argument that the district court
erred by dismissing the conspiracy count while leaving the
phone counts undisturbed, we began by explaining that the
district court’s decision to dismiss the conspiracy count
served at least two distinct purposes. Wilbourn, 799 F.3d at
911–12. On one level, the dismissal of the conspiracy charge
negated the effect of Williams’s false testimony on the de-
fendants’ conspiracy convictions. Id. On another level, it
served as an appropriate discretionary remedy for the prose-
cutor’s misconduct in knowingly using false testimony at
trial. Id.
No. 15-1170 7
We next observed that, since Williams’s false testimony
did not affect the defendants equally, the district court’s
blanket dismissal of the conspiracy count for all defendants
did not necessarily serve the same purpose in each instance.
Id. Where a defendant would have been properly convicted
of the conspiracy count even without Williams’s false testi-
mony, for example, the dismissal of the count for that de-
fendant primarily served the end of redressing prosecutorial
misconduct. See id. The dismissal of the conspiracy count for
a particular defendant did not necessarily mean that there
was insufficient evidence to establish his involvement in the
predicate conspiracy apart from the false testimony. There-
fore, the mere dismissal of the conspiracy count did not au-
tomatically dictate the collateral dismissal of the remaining
counts based on the conspiracy. Id. Rather, the pivotal ques-
tion in determining whether a particular defendant’s con-
spiracy-based convictions should have been vacated was
whether that defendant’s participation in the underlying
conspiracy was necessarily established by Williams’s false
testimony, or whether instead there was sufficient inde-
pendent evidence, apart from the false testimony, to prove
the predicate conspiracy for that defendant beyond a rea-
sonable doubt. Id.
Applying that standard, we held that the district court
should have dismissed Wilbourn’s convictions on the phone
counts because the government could only prove his partici-
pation in the predicate conspiracy by relying on Williams’s
demonstrably false testimony. Id. By contrast, we held that
the district court properly refused to vacate Sanders’s
phone-count convictions because his involvement in the un-
derlying conspiracy was independently established by evi-
dence unrelated to the false testimony. Id. at 912–13. In so
8 No. 15-1170
holding, we noted that the district court’s dismissal of the
conspiracy charge against Sanders owed more to the interest
of providing an adequate remedy for prosecutorial miscon-
duct than to that of eliminating a verdict secured by bad ev-
idence. Id.
Our precedent in Wilbourn frames the issue on appeal.
We must determine whether Freeman’s convictions on the
gun and phone counts fundamentally depended on the false
testimony of Williams, or whether those convictions (includ-
ing the underlying conspiracy on which they were based)
were sufficiently supported by independent evidence to es-
tablish Freeman’s guilt beyond a reasonable doubt. We con-
clude that the government adequately proved Freeman’s
guilt apart from Williams’s false testimony.
Although Williams certainly linked Freeman to the rele-
vant drug scheme, Freeman’s participation in the predicate
conspiracy was also clearly established by a wealth of addi-
tional evidence––including video and audio surveillance,
recorded phone conversations, various witness accounts,
and numerous seizures and garbage pulls––all of which
demonstrated that Freeman actively oversaw the manufac-
ture, packaging, and distribution of narcotics at Cabrini-
Green. The phone counts were based on Freeman’s recorded
telephone conversations about the purchase of a firearm and
the assessment of drug proceeds, while the gun count was
based on a video recording that showed Freeman receiving a
gun in the very location where he had packaged drugs with
his accomplices earlier that day. These recordings, together
with the other reliable evidence of record, suffice to establish
beyond a reasonable doubt that Freeman used a phone and
No. 15-1170 9
possessed a gun as alleged in the indictment, and that he did
so in furtherance of the conspiracy charged in Count 1.
Like its dismissal of the conspiracy charge against Sand-
ers, the district court’s decision to vacate Freeman’s conspir-
acy conviction was primarily ordered toward redressing
prosecutorial misconduct, rather than clearing a verdict ob-
tained by false testimony. Accordingly, we affirm the district
court’s denial of Freeman’s motion for a new trial (or acquit-
tal) on the gun and phone counts.
B. Sentencing Challenges
At sentencing, the district court relied primarily on the
testimony of Ralph LaSalle to find that Freeman was respon-
sible for 8.4 or more kilograms of cocaine base. Freeman ar-
gues that this finding was clearly erroneous because
LaSalle’s testimony was not sufficiently reliable. He further
contends that the district court erred by refusing to allow
David McClinton to testify at the sentencing hearing con-
cerning the statements in his affidavit, which contradicted
LaSalle’s testimony about his drug transactions with Free-
man. Both of these arguments ultimately relate to the district
court’s drug-quantity determination, so we begin there.
1. Drug Quantity
A district court’s calculation of drug quantity is a finding
of fact that we review for clear error. United States v. Austin,
806 F.3d 425, 430 (7th Cir. 2015). The government must
prove the quantity of drugs attributable to a defendant “only
by a preponderance of the evidence.” United States v. Gal-
braith, 200 F.3d 1006, 1011 (7th Cir. 2000). In a drug conspira-
cy, the defendant is responsible “not only for drug quantities
directly attributable to him but also for amounts involved in
10 No. 15-1170
transactions by coconspirators that were reasonably foresee-
able to him.” United States v. Turner, 604 F.3d 381, 385 (7th
Cir. 2010) (internal marks omitted).
Determining the amount of drugs attributable to a de-
fendant is “not an exact science.” United States v. Griffin, 806
F.3d 890, 892–93 (7th Cir. 2015) (internal marks omitted). The
district court is “entitled to estimate drug quantity using tes-
timony about the frequency of dealing and the amount dealt
over a specified period of time.” United States v. Hernandez,
544 F.3d 743, 746 (7th Cir. 2008) (internal marks omitted).
The information relied upon by the district court at sentenc-
ing must bear “sufficient indicia of reliability to support its
probable accuracy.” United States v. Hankton, 432 F.3d 779,
789 (7th Cir. 2005) (internal marks omitted).
Freeman first argues that the district court should not
have relied on LaSalle’s testimony to determine drug quanti-
ty because LaSalle was a convicted felon and drug user who
stood to gain from his testimony and who had previously
lied to the government to protect his own interests. This ar-
gument fails because the district court explicitly found
LaSalle credible despite his shortcomings as a witness. See
Dist. Ct. Dkt. 1176 at 41 (“LaSalle’s testimony was subject to
cross-examination and provides a credible estimate of the
size and frequency of Freeman’s drug purchases from early
2000 through April 2006.”).
“Determining witness credibility is especially within the
province of the district court and ‘can virtually never be
clear error.’” United States v. Longstreet, 669 F.3d 834, 837 (7th
Cir. 2012) (quoting United States v. Clark, 538 F.3d 803, 813
(7th Cir. 2008)). Indeed, we have repeatedly said that a sen-
tencing judge is entitled to credit testimony that is “totally
No. 15-1170 11
uncorroborated and comes from an admitted liar, convicted
felon, or large scale drug-dealing, paid government inform-
ant.” Clark, 538 F.3d at 813 (internal marks omitted). Accord-
ingly, we will not second-guess the district court’s finding
that LaSalle credibly testified on the narrow issue of drug
quantity. See United States v. Cox, 536 F.3d 723, 730 (7th Cir.
2008) (“The testimony of Weir, judged by the district court to
be credible, bore sufficient indicia of reliability, and there-
fore we find no clear error in the court’s drug quantity calcu-
lation.”); United States v. Robinson, 30 F.3d 774, 786 (7th Cir.
1994).
Freeman next argues that LaSalle’s testimony lacked sig-
nificant details and was too vague to be reliable. LaSalle spe-
cifically testified, however, that he regularly supplied Free-
man with one- to two-kilogram shipments of cocaine from
around 2001 through April 2006––at first only once a month,
but eventually once a week or every other week. This infor-
mation was adequate to support the district court’s very
conservative estimate of the total quantity of cocaine in-
volved in Freeman’s conspiracy.3 Moreover, LaSalle’s testi-
mony was at least partially corroborated by additional evi-
dence drawn from surveillance, trash pulls, seizures, and
other witness accounts concerning the scope and volume of
Freeman’s drug trade. See Dist. Ct. Dkt. 1397 at 24 (“There is
other evidence … So it isn’t only LaSalle’s testimony that is
going into this calculation.”). Between LaSalle’s testimony
and this additional reliable evidence, the district court did
3As the district court observed, Freeman would still be responsible for
more than 8.4 kilograms of cocaine even if LaSalle had given him just
one kilogram a month for one year only.
12 No. 15-1170
not clearly err in finding by a preponderance that Freeman
was responsible for at least 8.4 kilograms of cocaine.
LaSalle’s testimony bore sufficient indicia of reliability to
be considered at sentencing, and we affirm the district
court’s drug-quantity findings.
2. Proposed testimony of McClinton
We review a district court’s refusal to grant an eviden-
tiary hearing at sentencing for abuse of discretion. United
States v. Sienkowski, 359 F.3d 463, 467 (7th Cir. 2004) (citing
Fed. R. Crim. P. 32(i)(2)). “An evidentiary hearing need not
be afforded on demand because there is no ‘right’ to a hear-
ing.” United States v. Cantero, 995 F.2d 1407, 1413 (7th Cir.
1993). Instead, we have held that the Sentencing Guidelines
require the district court “to provide a procedure––but not
necessarily an evidentiary hearing––in which the parties
may argue contested sentencing issues.” Id. Further, it is well
established that “[t]he requirements of due process during a
sentencing hearing are met if the defendant is given ade-
quate notice of the proceeding and an opportunity to contest
the facts relied upon to support the imposed criminal penal-
ty.” United States v. McCoy, 770 F.2d 647, 649 (7th Cir. 1985)
(internal marks omitted).
Freeman concedes that a district court is not obligated to
take testimony at sentencing, but insists that the district
judge violated his due process rights by refusing to hear the
proposed testimony of David McClinton.4 Essentially, Free-
4 As a preliminary matter, the parties dispute whether the district court
actually “refused” to allow McClinton to testify. We do not reach that
issue. Even if the district court did refuse to hear McClinton’s testimony,
the refusal was not error.
No. 15-1170 13
man argues that he needed McClinton’s testimony to coun-
ter the trial testimony of LaSalle, which provided the princi-
pal information relied upon by the district court in making
its drug-quantity calculation.
This argument is without merit. Freeman attended the
sentencing hearing with counsel, who argued vigorously on
his behalf, and the record reflects that the district court care-
fully considered the arguments of both sides before impos-
ing a sentence. At the hearing, Freeman had ample oppor-
tunity to contest the facts relied upon by the court in deter-
mining his sentence, including the facts supporting the
court’s drug-quantity findings. He specifically challenged
the reliability of LaSalle’s testimony by submitting McClin-
ton’s affidavit prior to the hearing, and the court considered
the statements made in the affidavit as well as the purpose
for which McClinton’s testimony concerning those state-
ments was being offered.
The district court was obviously aware that McClinton’s
affidavit contradicted LaSalle’s testimony, and contrary to
Freeman’s unfounded assertion, the judge did not “fail to
take account” of the affidavit simply by choosing not to
credit it over the trial testimony of LaSalle. Nor was it an
abuse of discretion for the court to find McClinton’s prof-
fered testimony unnecessary in light of its finding that
LaSalle had already credibly testified on the same subject
matter at trial. See United States v. Earnest, 129 F.3d 906, 914
(7th Cir. 1997) (sentencing testimony properly found unnec-
essary where the subject matter of the proposed testimony
had already been covered at trial by a witness whom the
court found credible).
14 No. 15-1170
Under these circumstances, the sentencing hearing was
“adequate to allow the district court to exercise its discretion
in an enlightened manner.” United States v. Vasquez, 966 F.2d
254, 260 (7th Cir. 1992). The district court did not violate
Freeman’s right to due process by finding that McClinton’s
testimony at the sentencing stage was unnecessary. See Ear-
nest, 129 F.3d at 913 (“By receiving defendant’s proffer as to
what he hoped to prove via [the proposed sentencing] testi-
mony, the trial court did all that was necessary under the
circumstances to afford [] due process.”).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the rulings of the
district court.