United States v. Norman Shaw, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2881
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NORMAN SHAW, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:13-cr-10105-JES-JEH-1 — James E. Shadid, Chief Judge.
ARGUED FEBRUARY 17, 2016 — DECIDED MAY 27, 2016
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Defendant-appellant, Norman Shaw,
is an inmate at the Federal Correctional Institute in Pekin,
Illinois (“FCI-Pekin”). He appeals his conviction for possession
of heroin while in a federal prison. He represented himself
pro se at trial, and now raises seven issues on appeal. We affirm
his conviction and sentence.
Shaw, a convicted bank robber, has been imprisoned at FCI-
Pekin since 2005. The prison has a phone hotline that inmates
2 No. 14-2881
may anonymously use to inform correctional personnel of
any issues. On August 1, 2012, David McDonough, a lieutenant
in the prison’s Special Investigation Services, received two
anonymous calls via this tip line. Both calls alleged that Shaw
possessed heroin.
McDonough instructed Correctional Officer Darrin
Herrmann to find and strip search Shaw. Shaw was in a
common area outside of his cell when Herrmann approached.
Herrmann grabbed Shaw’s left shoulder and told Shaw to “cuff
up”—to put his hands behind his back so that Herrmann could
apply handcuffs. After applying the handcuffs, Herrmann led
Shaw to the lieutenants’ bathroom. As they approached the
bathroom, Shaw said, “[O]kay, you got me. I have some weed
in my pocket.” After they entered the bathroom, Herrmann
searched Shaw’s clothing, and found some tissue paper that
appeared to contain marijuana.
Hermann then told Shaw to undress. Shaw refused.
Correctional Officer Ricky Hayes arrived in the bathroom and
also commanded Shaw to undress, but Shaw continued to
refuse. Hayes then called the senior officer on duty, Lieutenant
Rivera, and asked him to come to the bathroom. Rivera
arrived, and Shaw eventually agreed to undress. Herrmann
removed the handcuffs.
After the handcuffs were removed, Shaw reached into the
left front pocket of his sweatpants, and pulled out four brown
balls wrapped in plastic. Herrmann took the balls, and Hayes
escorted Shaw to the prison’s segregated housing unit.
Frederika Laux, a Drug Enforcement Agency analyst,
performed tests on the four balls. Laux determined that the
No. 14-2881 3
balls contained heroin at a purity level of less than one percent.
Because DEA policy prohibited further testing if the balls were
shown to contain less than one percent heroin, she did not
calculate the exact purity value and did not note the purity
value in her report.
On October 23, 2013, a grand jury indicted Shaw for
possession of heroin in a federal prison, in violation of 18
U.S.C. §§ 1791(a)(2) and 1791(b)(1). He represented himself
pro se from his arraignment until his sentencing.
Shaw moved to suppress the four balls recovered during
the search, claiming that the search violated his Fourth
Amendment rights. The district court denied Shaw’s motion,
citing Hudson v. Palmer, 468 U.S. 517 (1984), when noting that
Shaw’s claim to privacy rights “cannot be reconciled with the
concept of incarceration and the needs and objectives of penal
institutions.”
Shaw then claimed that he was entitled to hard copies of
discovery. (The government had given Shaw an electronic
copy of the record on a compact disc that Shaw could access
using the prison computer room.) Shaw claimed that having
only an electronic version of the record hindered his defense,
because he could not review the documents in his cell and did
not have unlimited access to the computer room; he had to rely
on prison officers to escort him to the computer. The district
court ruled that providing an electronic version of discovery
complied with Federal Rule of Criminal Procedure 16. But the
district court offered Shaw the opportunity to review hard
copies of discovery at the federal courthouse. Shaw responded,
“I object,” which the district court interpreted as a refusal.
4 No. 14-2881
On March 13, 2014, Shaw moved the district court to
disclose the identities of the informants1 who had called the tip
line and informed McDonough that Shaw possessed heroin.
Shaw stated doubts about the actual existence of any infor-
mants and expressed a desire to “verify their statements” and
“cross[-]examine them.” Stating that Shaw had not shown that
the identity of informants “would be relevant and helpful” to
Shaw’s defense, the district court denied the motion.
Finally, Shaw requested that a third party, Intermountain
Labs in Portland, Oregon, retest the four brown balls. The
district court granted Shaw’s request at the March 13, 2014,
pre-trial hearing, allowing Intermountain Labs both to retest
the substance and review the DEA laboratory notes.
Over a month later, at an April 15, 2014, pre-trial hearing,
the district court asked Shaw if he had received the results of
the test from Intermountain Labs. Shaw claimed that he had
not. The district court asked for Intermountain Labs’ phone
number. After receiving the number, the district court called a
recess.
Upon returning from the recess, the district court reported
that it had spoken to the administrative assistant for the
chemist at Intermountain Labs who was testing the substance.
The district court stated that it “didn’t ask for the details of the
results, if any, but just asked about the process.” The assistant
had told the district court that a doctor at Intermountain Labs
1
Though we do not know whether the calls to McDonough came from a
single informant or two informants, we refer to the callers in the plural.
No. 14-2881 5
had spoken to Shaw and informed him about the results of the
test, and that Shaw had not requested a report.
In light of this phone call, the district court did not extend
the start of the trial past the previously set date of April 21.
When asked what witnesses he wished to call at trial, Shaw
stated that he wanted the chemist at Intermountain Labs to
testify. The district court noted that Shaw had not disclosed the
chemist’s findings, and Shaw responded that the district court
had “broke[n] the attorney-client privilege” by calling Inter-
mountain Labs. The district court said that it had not violated
the privilege because it had not learned the results of the test,
and had only wanted to “confirm that [Shaw] had received the
result” for the sake of determining whether to proceed to trial
on April 21.
At trial, Laux testified regarding the findings of her tests.
The relevant FCI-Pekin personnel also testified about locating
Shaw, the circumstances of the search of Shaw, and the confis-
cation of the four balls. During his testimony, McDonough
specifically described the information provided by the anony-
mous informants via the tip line; Shaw did not object to this
testimony. Shaw also testified. The jury convicted him on
April 22, 2014.
The district court sentenced Shaw on August 22, 2014. It
agreed with the suggested total offense level of 13, a criminal
history category of VI, and the resulting U.S. Sentencing
Guidelines range of 33 to 41 months. The district court then
sentenced Shaw to 60 months’ imprisonment consecutive to his
current imprisonment for bank robbery, and three years of
supervised release concurrent to the supervised release
6 No. 14-2881
imposed in the bank robbery sentence. The district court
believed that an above-Guidelines prison sentence was
appropriate because of the “nature and circumstances of the
offense, the need to protect the public from the defendant, and
the high likelihood of recidivism” based on Shaw’s history of
non-compliance with the law.
Shaw appealed.
Shaw first argues that the government did not present
sufficient evidence that he actually possessed heroin. Specifi-
cally, he argues that the substance confiscated did not contain
a measurable amount of heroin. Because the quantity of the
heroin existing in the substance was below one percent, Shaw
argues that the government did not introduce a measurable
amount of heroin to meet its burden of proof. However, we
have never recognized this “minimal purity level defense.”
See United States v. Plummer, 581 F.3d 484, 487–88 (7th Cir.
2009). The purity level in the heroin is inconsequential. See
United States v. Buggs, 904 F.2d 1070, 1072, 1080 (7th Cir. 1990)
(upholding conviction for sale of 9.95 grams of 1.2% heroin);
see also United States v. Marshall, 908 F.2d 1312, 1316 (7th Cir.
1990) (dilution rate for illegal drugs sold on street, such as
heroin, can be 2% to 3% opiate or lower (citation omitted)). If
there is evidence of a detectable amount of heroin found in the
substance, we will sustain a conviction for possession of
heroin.
Here, there was sufficient evidence to convict Shaw of
possession of heroin. Laux validated that the balls contained
heroin. She testified that the balls, collectively weighing 1.0
grams, “each contained heroin.” Laux testified to performing
No. 14-2881 7
a color test and gas chromatography. She testified, “Heroin
was confirmed in each of those four balls. It is just a laboratory
policy that if the purity of the test is less than one percent then
it is not reported out because it is a very small amount.” This
finding of a detectable amount of heroin was sufficient
evidence to convict Shaw.
Shaw next argues that the district court erred in denying his
motion to suppress the four balls seized after he removed them
from his pocket. He claims that he had a reasonable expecta-
tion of privacy and that the search violated this expectation
and thereby his Fourth Amendment rights. But because Shaw
removed the four balls from his pocket before any search
occurred, there was no violation of his Fourth Amendment
rights.
As a prisoner, Shaw has highly curtailed Fourth Amend-
ment protection. See Hudson, 468 U.S. at 527–28 (“A right of
privacy in traditional Fourth Amendment terms is fundamen-
tally incompatible with the close and continual surveillance of
inmates and their cells required to ensure institutional security
and internal order.”); King v. McCarty, 781 F.3d 889, 901 (7th
Cir. 2015) (Hamilton, J., concurring) (“those who are detained
in connection with proven or suspected criminal activity have
sharply diminished expectations of privacy”). Generally, we
“give considerable deference to the judgments of prison
officials about matters of institutional safety and security.”
King, 781 F.3d at 899 (majority opinion).
Under our precedent, Shaw could only claim that the prison
personnel violated his constitutional rights if there were a
search that somehow invaded his body. See id. at 900 (citation
8 No. 14-2881
omitted). But no invasive bodily search of Shaw occurred.
Shaw voluntarily removed the balls from his pants pocket
before removing his clothes. With no invasion of his body,
Shaw’s limited Fourth Amendment rights as a prisoner were
not implicated.
Shaw next contends that he was entitled to learn the
identity of the anonymous tipsters who informed prison
personnel that he was carrying heroin. The government has a
limited privilege to shield the identity of a confidential
informant from a criminal defendant. United States v. Roviaro,
353 U.S. 53, 59–60 (1957); see also United States v. McDowell, 687
F.3d 904, 911 (7th Cir. 2012). The privilege is stronger for “mere
tipsters,” who did not participate in the underlying criminal
activity, but instead “only … provide [law enforcement] with
the relevant information that served as a foundation” for the
search. McDowell, 687 F.3d at 911 (quotation marks and citation
omitted). In deciding whether to disclose an informant’s
identity, a district court must weigh “the public interest in
protecting the flow of information against the [defendant’s]
right to prepare his defense.” Roviaro, 353 U.S. at 62. The
privilege remains unless the defendant establishes that the
informant’s identity “is relevant and helpful to [his] defense …
or is essential to a fair determination of a cause.” Id. at 60–61;
see also United States v. Harris, 531 F.3d 507, 514 (7th Cir. 2008)
(citations omitted) (defendant has burden of overcoming
privilege).
Here, Shaw has not established that the privilege of
anonymity must give way. First, nothing suggests that the
anonymous informants participated in the underlying criminal
activity; there is no evidence that the informants had anything
No. 14-2881 9
to do with Shaw possessing heroin. They were “mere tipsters,”
and the privilege of anonymity is stronger. See McDowell, 687
F.3d at 911. Also, the presumption of anonymity is higher still
when applied to a prison setting, where an inmate offering a
tip to correctional personnel may fear reprisal. Without the
protection of anonymity, prisoners may never provide tips.
Shaw did not offer a meaningful counter-argument, and the
district court did not abuse its discretion in denying his motion
to disclose the identity of the informants.
Shaw also argues that Lieutenant McDonough’s testimony
about the statements of the anonymous informants constituted
inadmissible hearsay. McDonough testified that during the
first phone call on the anonymous tip line, the informant told
him that “Shaw was in possession of heroin.” He also testified
that during the second phone call, the informant told
McDonough that Shaw “was definitely carrying heroin.”
McDonough’s statements were not inadmissible hearsay;
the district court could have admitted the statements as non-
hearsay because they either demonstrate the effect on the
listener or discuss the course of the investigation. First, the
statements of the informants could have been admitted to
show the effect on the listener, McDonough; the statements
had the effect of causing McDonough to direct other FCI-Pekin
personnel to find and search Shaw. Second, the district court
could have admitted the statements under the “course of
investigation” rationale. See United States v. Cruse, 805 F.3d 795,
810 (7th Cir. 2015). This is essentially an extension of the “effect
on the listener” principle to law enforcement: “[W]hen such a
statement is offered only to show the effect that it had on the
police, it is used for a purpose other than the truth of its
10 No. 14-2881
contents.” Carter v. Douma, 796 F.3d 726, 736 (7th Cir. 2015)
(citation omitted). The statements could have been admitted to
show that FCI-Pekin personnel did not randomly accost Shaw,
and that they were led to investigate him because of calls from
the anonymous informants.
Whatever the rationale, Shaw suffered no prejudice. See
United States v. Haldar, 751 F.3d 450, 458 (7th Cir. 2014). He had
heroin on his person and presented no evidence that someone
planted heroin on him.
Shaw next argues that the district court violated his work
product privilege by speaking to the Intermountain Labs
employee about the results from the second test of the sub-
stance in the four balls. Because he was pro se, Shaw was
afforded an attorney’s privilege to “prepare his legal theories
and plan his strategy without undue or needless interference.”
United States v. Nobles, 422 U.S. 225, 237 (1975) (citing Hickman
v. Taylor, 329 U.S. 495, 511 (1947) (quotation marks omitted));
see also United States v. Smith, 502 F.3d 680, 689 (7th Cir. 2007).
But the district court did not interfere with this privilege. The
district court never learned the results of Intermountain Labs’
test; it merely learned that the test had actually occurred.
Without knowing the test results, the district court could not
have learned about or interfered with Shaw’s legal theories or
strategy regarding the test. Having not interfered with Shaw’s
theories or strategy, the district court did not violate Shaw’s
work product privilege.
Shaw’s final evidentiary argument is that the district court
erred in not requiring the government to provide hard copies
of discovery to him that he could have reviewed in his cell. He
No. 14-2881 11
claims that providing him only an electronic copy of the pre-
trial record via compact disc was insufficient because he had
limited access to the FCI-Pekin computer room.
We are deferential to the district court on such evidentiary
matters; any preference of the appellate court is not binding.
See United States v. Abair, 746 F.3d 260, 269 (7th Cir. 2014)
(citation omitted). Shaw may not have had unfettered access to
the prison computer room, but he still had sufficient opportu-
nity to review the record on the compact disc. Further, the
district court offered Shaw the opportunity to view the hard
copies of the record in the courthouse, but Shaw rejected the
offer. The district court did not abuse its discretion in denying
Shaw hard copies of discovery.
Finally, Shaw argues that his above-Guidelines sentence of
60 months’ imprisonment, to be served consecutive to his bank
robbery conviction, was unreasonable. District courts have
“wide discretion in determining what sentence to impose.”
United States v. Tucker, 404 U.S. 443, 446 (1972); see also Narvaez
v. United States, 674 F.3d 621, 626 (7th Cir. 2011). We will not
disturb a district court’s sentence unless it is procedurally
or substantively unreasonable. See United States v. Black, 815
F.3d 1048, 1051 (7th Cir. 2015) (citations omitted). Here, the
district court committed no procedural error, and the sentence,
while above the Sentencing Guidelines range, was substan-
tively reasonable.
Shaw claims that the district court committed procedural
error by “not explain[ing] why the recommended [G]uidelines
range was inadequate.” This is not a procedural requirement
for a valid sentence. A sentencing court commits procedural
12 No. 14-2881
error only if it “calculates the [G]uidelines incorrectly, treats
the [G]uidelines as mandatory, fails to consider the 18 U.S.C.
§ 3553(a) factors, or inadequately explains the chosen sen-
tence.” United States v. Schlueter, 634 F.3d 965, 967 (7th Cir.
2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)) (other
citation omitted). The district court did none of these things,
and therefore did not commit procedural error.
Shaw’s sentence is also substantively reasonable. The
district court calculated the Sentencing Guidelines range to be
between 33 and 41 months’ imprisonment, yet ultimately
sentenced Shaw to 60 months’ imprisonment. We do not
presume this sentence unreasonable “simply because it is
above the Guidelines range.” United States v. Bour, 804 F.3d
880, 886–87 (7th Cir. 2015) (citations omitted). Instead, we will
affirm such a sentence “so long as the district court offered an
adequate statement of its reasons, consistent with the 18 U.S.C.
§ 3553(a) factors.” United States v. Abebe, 651 F.3d 653, 657 (7th
Cir. 2011) (quotation marks and citation omitted). While “[a]
major departure [from the Sentencing Guidelines range]
requires a more significant justification,” the district court
“need not provide an extraordinary justification.” United States
v. Pabey, 664 F.3d 1084, 1098 (7th Cir. 2011) (emphasis added)
(citations omitted).
Here, while the district court’s sentence was a major
departure from the Sentencing Guidelines range, the district
court gave a sufficiently adequate explanation for the depar-
ture. The district court related the sentence to Shaw’s present
offense, noting that “heroin puts so many at risk including
prison staff and other inmates” and that such drugs “could
result in violence.” It also detailed Shaw’s ongoing criminal
No. 14-2881 13
history, repeated “failure to comply … with conditions of
parole and supervised release,” and “non-compliance while
in custody,” which included “seven violations resulting in
disciplinary actions.” The district court also emphasized
Shaw’s marked recidivism, saying at one point, “Incarceration
hasn’t or doesn’t motivate you to refrain from criminal conduct
and any motivation to change seems nonexistent.” It then
sentenced Shaw in an effort to “[p]romote respect for the law[,]
provide just punishment, afford adequate deterrence to
criminal conduct[,] and protect the public from further
crimes,” in addition to other 18 U.S.C. § 3553(a) factors. This
thorough explanation justified imprisoning Shaw for 60
months and renders the above-Guidelines sentence substan-
tively reasonable.
We AFFIRM Shaw’s conviction and sentence.