United States v. Ward, Robert D.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2657 & 98-2812
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT DANIEL WARD and RODNEY ELLIS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 730--Charles P. Kocoras, Judge.
Argued October 27, 1999--Decided April 28, 2000
Before HARLINGTON WOOD, JR., FLAUM, and EVANS, Circuit
Judges.
HARLINGTON WOOD, JR., Circuit Judge. On June 16,
1997, a multi-count second superseding indictment
was filed in the Northern District of Illinois
charging Robert Daniel Ward and Rodney Ellis,
along with nine codefendants, for conduct
relating to a large-scale drug distribution
conspiracy. The tremendously successful
conspiracy was organized and supervised by Nathan
"Nate" Hill who began distributing cocaine in the
Chicago area in the late 1980s. Ward and Ellis
were each convicted on two counts of the
indictment following a jury trial. On appeal,
Ward raises several challenges to his conviction.
Ellis also appeals, challenging his sentence.
I. BACKGROUND
The Hill conspiracy distributed thousands of
kilograms of cocaine in the Chicago area between
1987 and December 1995. Hill obtained this
cocaine from a variety of suppliers. Ward, who
was based in Los Angeles, California, was one of
Hill’s large-scale suppliers. Ward employed a
number of couriers, some of whom were supervised
by Donald Marini and Cameron Wright, to transport
large quantities of cocaine from California to
Chicago. Hill then acted as a wholesaler, selling
multi-kilogram quantities of cocaine to
distributors in the Chicago area. After several
of his couriers were arrested, Ward began
chartering Lear jets to transport cocaine to
Chicago. Between March 1, 1994 and October 7,
1994, for example, Ward chartered eight trips to
Chicago through Sussex Aviation in Van Nuys,
California. Testimony was presented at trial that
each charter trip involved the transportation of
approximately fifty kilograms of cocaine.
Drug trafficking provided Hill with sizable
profits which he used to purchase homes, cars,
boats, and, eventually, a four-engine JetStar
aircraft. Hill also sought legitimate business
opportunities through which he could launder his
drug proceeds. One of these businesses was
Pocketown Records, a record producing and
manufacturing business formed in 1993 by Nate
Hill and Michael Jefferson. At Hill’s direction,
Rodney Ellis, a cousin to Hill, participated in
the operation of Pocketown Records. Ellis managed
Pocketown’s daily operations and financial
activities. Pocketown’s expenses were paid
primarily in cash. For example, no salary checks
were issued; instead Hill handed out cash
payments to Pocketown workers. On several
occasions, Ellis transported large amounts of
cash from Chicago to Pocketown, which was located
in New York, and at other times, Ellis received
deliveries of cash from other Hill employees.
Ellis prepared false records for Pocketown in an
attempt to justify the influx of cash to the
business. Ellis also provided inaccurate
information to the accountant who was preparing
Pocketown’s 1993 tax returns. Ellis then signed
the falsified return and filed it with the IRS.
Ellis later became involved in another of Hill’s
business ventures, the production of a motion
picture entitled "Reasons" which was based on
Hill’s life story. Ellis played a limited role in
the "Reasons" production, unsuccessfully
attempting to persuade a recording company to
produce the soundtrack for the film.
The initial indictment in the case was filed on
December 13, 1995. It contained eighteen counts
and named twenty-one defendants. A superseding
indictment was filed on October 31, 1996, and on
June 16, 1997, a second, and final, superseding
indictment was filed. Ward was charged under
Counts One and Four of the second superseding
indictment. Count One alleged that Ward was
involved in a conspiracy to distribute and to
possess with intent to distribute mixtures
containing cocaine in violation of 21 U.S.C. sec.
846. Count Four charged Ward with a violation of
21 U.S.C. sec. 841(a)(1) based on an alleged
attempted distribution of approximately nine
kilograms of cocaine on or about January 21,
1993. Ellis was charged in Counts Seven and Eight
of the second superseding indictment. Count Seven
charged Ellis together with several codefendants
with conspiracy to defraud the United States, in
particular the Internal Revenue Service, in
violation of 18 U.S.C. sec. 371, while Count
Eight charged Ellis and several codefendants with
money laundering in violation of 18 U.S.C. sec.
1956(h). The case proceeded to a jury trial, and
both Ward and Ellis were convicted on each of the
counts against them. Ward was sentenced to 360
months imprisonment on each count with the
sentences to run concurrently. Ellis was
sentenced to 108 months imprisonment. A timely
notice of appeal was filed in each case, and the
cases have been consolidated for appeal.
II. ANALYSIS
Ward raises several challenges to his
conviction, while Ellis challenges the district
court’s computation of his sentence. We address
each appellant’s argument in turn.
A. Robert Daniel Ward
Ward challenges the district court’s rulings on
his speedy trial motion and on several
evidentiary motions. Ward further asserts that
the district court erroneously limited the scope
of his cross-examination of Donald Marini and
erred in failing to sua sponte recuse itself.
Finally, Ward contends that the government
committed prejudicial error based on a comment
made during closing argument.
1. Speedy Trial Motion
Ward was arrested in Los Angeles, California on
January 11, 1996 on charges stemming from a false
application for a passport. While Ward was in
custody on the passport charges, he was
separately indicted in the Central District of
California for narcotics violations based on his
distribution of drugs to the Hill conspiracy. On
October 11, 1996, a criminal complaint was filed
in the Northern District of Illinois charging
Ward with narcotics violations in connection with
the Hill conspiracy. On October 18, 1996, the
narcotics charges pending against Ward in the
Central District of California were dismissed
after prosecutors received the Illinois complaint
and an accompanying bench warrant for Ward’s
arrest.
On October 21, 1996, Ward was sentenced to
probation on the passport case. Ward, however,
remained in custody in California based on the
Illinois complaint and warrant. During November
and December 1996, the United States Marshals
Service for the Northern District of Illinois
attempted to obtain custody of Ward through its
normal channels. These attempts were complicated
due to erroneous information received from the
Marshals Service Prisoner Coordination Section
that Ward could not be transported to Chicago
because there were still charges pending against
him in California. On January 7, 1997, Ward was
brought before a magistrate judge in the Central
District of California for an out-of-district
process hearing at which time Ward asserted his
speedy trial concerns. The magistrate noted
Ward’s objections and stated that Ward would need
to raise them in the Northern District of
Illinois following his transfer. On February 11,
1997, the Marshals Service in the Northern
District of Illinois was informed that Ward was
being held in California pending the results of
his tuberculosis test./1 Ward was cleared for
transportation to Chicago on approximately
February 26, 1997. He arrived in the Northern
District of Illinois on either March 6 or 7 and
made his first appearance before a judicial
officer on March 13, 1997. On March 27, 1997,
Ward filed a motion to dismiss the indictment,
arguing that the delay from the time his
California charges were resolved until he was
brought before a judicial officer in the Northern
District of Illinois violated his right to a
speedy trial under the Speedy Trial Act, 18
U.S.C. sec. 3161 et seq., the Sixth Amendment,
and Federal Rule of Criminal Procedure 48(b). The
district court denied Ward’s motion. Ward’s jury
trial began on November 6, 1997.
By its express terms, the Speedy Trial Act does
not apply in the present case. Under the Act, the
trial of an accused must commence "within seventy
days from the filing date (and making public) of
the information or indictment, or from the date
the defendant has appeared before a judicial
officer of the court in which such charge is
pending, whichever date last occurs." 18 U.S.C.
sec. 3161(c)(1). Ward challenges only the delay
from the time charges were filed in the Northern
District of Illinois until March 13, 1997, the
day he first appeared before a judicial officer
in the Northern District of Illinois. This time
period is outside of the Speedy Trial Act, and
because Ward does not allege any improper delay
during the time his Speedy Trial Act clock was
running, his Speedy Trial Act claim fails.
The Sixth Amendment right to a speedy trial is
similar to, but separate from, the right created
by the Speedy Trial Act. United States v. Koller,
956 F.2d 1408, 1413 (7th Cir. 1992). The Supreme
Court has established a four-factor balancing
test to use in determining whether a defendant’s
Sixth Amendment right to a speedy trial has been
violated. See Doggett v. United States, 505 U.S.
647, 651 (1992); Barker v. Wingo, 407 U.S. 514,
530-33 (1972). Under this test, we must consider
"whether delay before trial was uncommonly long,
whether the government or the criminal defendant
is more to blame for that delay, whether, in due
course, the defendant asserted his right to a
speedy trial, and whether he suffered prejudice
as the delay’s result." Doggett, 505 U.S. at 651.
In determining whether the delay was uncommonly
long, we must consider the interval between
accusation and trial, here over a year. See
Doggett, 505 U.S. at 651. As the Supreme Court
noted in Doggett, courts have generally found
delays approaching one year to be presumptively
prejudicial. Id. at 652 n.1. However, Ward
challenges only the period between the return of
the indictment and his first appearance in the
Northern District of Illinois. Therefore, this
factor does not weigh heavily toward either side.
With respect to the second factor, Ward alleges
that the delay was the result of a lack of
diligence on the part of the prosecution. An
examination of the record reveals that the delay
resulted from miscommunication and the necessity
of fulfilling certain prerequisites to transfer.
Because this equates at the most to negligence on
the part of the government, this factor must "’be
weighted less heavily but nevertheless should be
considered since the ultimate responsibility for
such circumstances must rest with the government
rather than with the defendant.’" United States
v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976)
(quoting Barker, 407 U.S. at 531); see also
Doggett, 505 U.S. at 657 ("To be sure, to warrant
granting relief, negligence unaccompanied by
particularized trial prejudice must have lasted
longer than negligence demonstrably causing such
prejudice.").
Ward contends that he fulfilled the third prong
by asserting his speedy trial concerns
immediately upon being brought before the
magistrate in California for his out-of-district
proceedings and by reasserting these concerns at
his initial appearance in the Northern District
of Illinois. However, Ward asserted his right to
a speedy trial after much of the alleged improper
delay had occurred. See United States v. Deleon,
710 F.2d 1218, 1222 (7th Cir. 1983). Ward knew of
the charges against him and was represented by
counsel from the time the California charges were
resolved, yet he did nothing to assert his speedy
trial right until his out-of-district process
hearing. This factor does not weigh strongly in
Ward’s favor. Finally, with respect to the
prejudice prong, Ward does not allege that the
delay impaired his ability to present his
defense. Instead, Ward "asserts that the stress
and anxiety of being incarcerated and awaiting
transportation to Chicago following the
conclusion of the California cases in October
1996, were oppressive and increased the anxiety
and concern on his behalf." While this is a
proper factor to consider under the prejudice
prong, it is insufficient to tip the scales in
Ward’s favor. See Jackson, 542 F.2d at 409(stating that general allegations of anxiety and
concern constitute only minimal prejudice,
especially when unenhanced by an impairment in
presenting a defense). Weighing the four factors,
we find that Ward’s Sixth Amendment right to a
speedy trial was not violated.
We review the district court’s denial of Ward’s
Federal Rule of Criminal Procedure 48(b) claim
for abuse of discretion. Deleon, 710 F.2d at
1223. Under Rule 48(b), "if there is unnecessary
delay in bringing a defendant to trial, the court
may dismiss the indictment, information or
complaint." Fed. R. Crim. P. 48(b). Rule 48 "is
not circumscribed by the Sixth Amendment,"
Deleon, 710 F.2d at 1223; however, as the Eighth
Circuit has recognized, it is driven "by the same
general considerations as the Sixth Amendment."
United States v. DeLuna, 763 F.2d 897, 923 (8th
Cir. 1985). Incorporating our analysis above and
noting that there was no evidence of purposeful
delay by the prosecution, we find that the
district court did not abuse its discretion in
denying Ward’s motion to dismiss the indictment
pursuant to Rule 48(b). See, e.g., United States
v. Sears, Roebuck & Co., Inc., 877 F.2d 734, 739
(9th Cir. 1989) ("In general dismissal under Rule
48(b) is appropriate only where there is delay
that is purposeful or oppressive." (internal
quotations and citations omitted)).
2. Evidentiary Issues
Ward first challenges the district court’s
admission of testimony from two witnesses who
were cooperating with the government, Donald
Marini and Cameron Wright, regarding drug
involvement with Ward prior to the charged
conspiracy. Marini testified that he began
selling and transporting drugs for Ward in
approximately 1987 and continued to do so until
he was arrested in 1993. Wright testified that he
began purchasing cocaine from Ward when Wright
was still in college and continued to purchase
cocaine from Ward after his graduation from
college in 1991. Eventually, Marini became a
courier between Ward and the Hill operation in
Chicago, and both Marini and Wright supervised
couriers for Ward in connection with the Hill
conspiracy. Ward objected to the testimony
regarding prior drug transactions between himself
and Marini and Ward. The district court overruled
Ward’s objection, finding an inextricable link
between the testimony and the charged offenses
and stating that the testimony about prior drug
relationships was "highly relevant and
probative." Ward argues that this ruling was
erroneous under Rules 403 and 404(b) of the
Federal Rules of Evidence./2 We review for abuse
of discretion. United States v. Akinrinade, 61
F.3d 1279, 1283 (7th Cir. 1995).
Evidence of uncharged criminal activity is
admissible if it is "’intricately related to the
facts of the case’ before the court." United
States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.
1995) (quoting United States v. Hargrove, 929
F.2d 316, 320 (7th Cir. 1991)). The admissibility
of such evidence is limited only by Rule 403 and
is not subject to the limiting requirements of
Rule 404(b). Id. at 1102-03. In the present case,
the testimony of Marini and Wright was
intricately related to the charged conspiracy
because it showed how the men’s relationship with
Ward "began, its basis, and structure, and how
the relationship blossomed into the charged
conspiracy." United States v. Zarnes, 33 F.3d
1454, 1469 (7th Cir. 1994) (citing United States
v. Diaz, 994 F.2d 393, 395 (7th Cir. 1993)).
While it was not disputed that Ward knew Marini
and Wright, the testimony regarding the prior
drug transactions was integral to the complete
story of the charged conspiracy in that it
outlined the development of the relationship of
trust between the men which led to their
respective roles in the conspiracy. See Diaz, 994
F.2d at 395. Additionally, to further minimize
the risk of unfair prejudice, the court gave
limiting instructions during the testimony of
both Marini and Wright, instructing the jury to
consider the information regarding the prior
activities only as background and with respect to
the relationship which existed between the
parties. It is clear that the probative value of
the testimony outweighed any potential for unfair
prejudice. Therefore, the testimony was properly
admitted "without regard to Rule 404(b)’s
strictures," Zarnes, 33 F.3d at 1469, and the
district court did not abuse its discretion in
allowing it.
Ward next argues that the district court erred
in allowing evidence regarding Ward’s use of
false identification in the name of Jeffery
Eugene Palmer. Our review is for abuse of
discretion. United States v. Aldaco, 201 F.3d
979, 985 (7th Cir. 2000). While Ward contends
that the district court failed to meet the
requirements for admissibility under Fed. R.
Evid. 404(b), the evidence was not offered under
Rule 404(b) but rather as direct evidence to
support the government’s allegations that Ward
furthered the conspiracy by using aliases.
Evidence was presented at trial that, on March
10, 1995, coconspirator William "Ikey" Hill was
identified driving a black van registered to a
Jeffery E. Palmer. Therefore, the false
identification evidence was probative in that it
showed a link between Ward and members of the
Hill conspiracy. Furthermore, the district court
limited the information that was admitted to
reduce the risk of unfair prejudice to Ward. The
jury was told only that Ward attempted to obtain
a passport in the name of Jeffery Eugene Palmer
and was not informed that Ward was arrested for
this incident. Under these circumstances, the
probative value of the false identification
evidence outweighs any risk of unfair prejudice.
The district court did not abuse its discretion
in admitting the evidence, and Ward’s claim
fails./3
3. Cross-Examination of Donald Marini
Ward asserts that the district court improperly
restricted his defense by limiting the scope of
his cross-examination of government witness
Donald Marini. On cross-examination by Ward’s
counsel, Marini testified that, as a result of
his cooperation, federal prosecutors helped to
clear a warrant against Marini based on unrelated
charges in California state court. Defense
counsel then sought to question Marini as to the
nature of the state charges, attempting to elicit
the fact that the charges were based on
allegations of spousal and child abuse. The
prosecutor objected, and following a sidebar, the
court sustained the objection. The court noted
that the information regarding the nature of the
charges was highly inflammatory and irrelevant to
the point being developed on cross-examination
that Marini received a benefit for his
cooperation. We review a district court ruling
limiting cross-examination for abuse of
discretion. Akinrinade, 61 F.3d at 1285.
As we have noted, "the sufficiency of cross-
examination turns on whether the jury had
sufficient information to make a discriminating
appraisal of the witness’ motive and bias."
Akinrinade, 61 F.3d at 1285 (internal quotations
and citations omitted). Ward argues that the
district court’s ruling prevented him from
inquiring "as to the substantial benefit to Mr.
Marini as bearing on bias, motive and
credibility." However, the district court allowed
Ward’s counsel to elicit the fact that Marini
received a benefit in the form of dismissal of a
state warrant in exchange for his cooperation in
the federal prosecution. This was sufficient to
allow the jury to make a discriminating appraisal
of Marini’s motive and bias. Moreover, "trial
judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based
on concerns about, among other things,
harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is
repetitive or only marginally relevant." Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986). The
district court did not abuse its discretion in
prohibiting defense counsel from inquiring into
the nature of the state charges.
4. Recusal
Following Ward’s conviction but prior to
sentencing, defense counsel became aware, through
our opinion in In re Hatcher, 150 F.3d 631 (7th
Cir. 1998), that Judge Kocoras’s son, John
Kocoras, while acting as a third-year law student
intern in the United States Attorney’s Office for
the Northern District of Illinois, had assisted
in the trial of Gangster Disciple leader Larry
Hoover. Acting under the authority of Northern
District of Illinois General Rule 3.11, John
Kocoras presented eight government witnesses
during the Hoover trial. Judge Kocoras attended
the trial to observe his son’s performance. One
of the witnesses presented by John Kocoras
testified regarding the seizure of $364,000 from
William Hill and a member of the Gangster
Disciple street gang. Testimony regarding this
seizure was presented at Ward’s trial as well.
This was the only overlap between evidence
presented at the Hoover trial and that presented
at Ward’s trial.
Ward was convicted on December 19, 1997. Our
Hatcher opinion was issued on May 13, 1998. Based
on the information revealed in Hatcher, Ward
moved for Judge Kocoras’s recusal at his
sentencing hearing on June 18, 1998. Judge
Kocoras denied the motion. On appeal, Ward argues
that Judge Kocoras’s presence at the Hoover trial
and his son’s involvement in Hoover’s prosecution
created a conflict that required recusal or, at
the very least, disclosure.
Ward bases his argument in part on 28 U.S.C.
sec. 455(a) which requires a judge to "disqualify
himself in any proceeding in which his
impartiality might reasonably be questioned." The
government argues that Ward waived his sec.
455(a) claim by failing to pursue it prior to
trial, citing United States v. Troxell, 887 F.2d
830, 833 (7th Cir. 1989), United States v. Bonds,
847 F.2d 1233, 1241 (7th Cir. 1988), and United
States v. Balistrieri, 779 F.2d 1191, 1204-05
(7th Cir. 1985). The application of these cases
to the present situation is debatable because,
given the sequence of events outlined above, it
is clear that Ward did not discover the
information upon which he based his motion for
recusal until after his trial was concluded. In
the present case, we need not decide the waiver
issue because Ward’s claim fails on its merits.
Recusal is required under sec. 455(a) when a
"judge’s impartiality could be questioned by a
reasonable, well-informed observer." Hatcher, 150
F.3d at 637 (citation omitted). The single
evidentiary overlap between Ward’s case and the
Hoover prosecution is insufficient to support
even an appearance of impropriety. Ward’s case is
easily distinguishable from Hatcher, in which
both cases were part of one large prosecution of
a continuing criminal enterprise and involved
"virtually the same offenses, committed by the
same people." Id. at 638. The connection between
Ward’s case and the Hoover prosecution was not
significant enough to require recusal under sec.
455(a). To the extent that Ward asserts claims
under 28 U.S.C. sec. 455(b)(1) and (b)(5), these
arguments were fully addressed and rejected in
Hatcher, id. at 635-37, and we will not reexamine
them here. Recusal was not required.
5. Closing Argument
Ward asserts that the prosecution committed
reversible misconduct based on an alleged
improper comment during its rebuttal closing
argument. The comment at issue dealt with several
photographs that law enforcement agents recovered
from Ward when he was arrested on the passport
charges. The photographs, which were presented at
trial, were from Ward’s wedding and included
shots of Donald Marini and Cameron Wright. When
they were seized from Ward, the photos were cut
or folded in such a way as to highlight Marini
and Wright, both of whom Ward knew were
cooperating with the government by this time.
The prosecutor did not mention the photographs
in his initial closing argument. In his closing
argument, defense counsel addressed the photos,
calling them a "non-issue" and arguing that the
photos only went to show the conceded fact that
Ward, Wright, and Marini knew one another. A
second Assistant United States’ Attorney
presented the government’s rebuttal argument. In
response to defense counsel’s proffered
explanation for the photos, she stated
The photos that he [Ward] has with him, when
he’s attempting to leave the country, apparently,
Cameron Wright, Donald Marini, wedding pictures
[sic].
[Defense counsel] would say, okay, it shows
what good friends they are. Ladies and gentlemen,
I believe that you could draw from this an
inference it’s something slightly more sinister.
This man, he knows without a doubt--Robert
Daniel Ward knows that this man is cooperating
against him as of January of 1996. He knows that
this man in the back seat of that car is
cooperating against him in 1996. For the family
album? I don’t think so, and I don’t think the
evidence indicates that.
Defense counsel objected, targeting his objection
to "any sinister inference" and stating that
there was no evidence to support the prosecutor’s
line of argument. The court responded, "Well, she
may argue and the jury may accept or reject any
inferences to be drawn. She may argue." Ward
raised the issue of prosecutorial misconduct
again in a motion for a new trial, which the
district court denied. We review both the
overruling of Ward’s objection and the denial of
the motion for a new trial for abuse of
discretion. United States v. Knox, 68 F.3d 990,
1000 (7th Cir. 1995).
Our analysis to assess allegations of
prosecutorial misconduct during closing argument
is two-fold. United States v. Butler, 71 F.3d
243, 254 (7th Cir. 1995). The first step is to
examine the disputed comment in isolation to
determine whether it was in fact improper. Id. If
the comment was improper, we must then examine
the comment in light of the record as a whole to
determine whether the defendant was deprived of
a fair trial. Id. As the district court
recognized, in closing argument, a prosecutor
"may argue reasonable inferences from the
evidence that the jury has seen and heard."
United States v. Waldemer, 50 F.3d 1379, 1383
(7th Cir. 1995). While "innumerable factors may
figure in the reasonableness calculation," the
most obvious considerations are "[w]hether the
evidence bears logical and proximate connection
to the point the prosecutor wishes to prove." Id.
at 1384. It is also important to consider whether
the prosecutor made "the argument solely to
inflame the passions of the jury." Id. Given the
circumstances of the present case, the argument
was logically and proximately connected to the
evidence. Moreover, the argument was not made
solely to inflame the jury but rather in response
to an explanation offered by defense counsel in
his closing argument. The prosecutor’s argument
was not so unreasonable as to deprive Ward of a
fair trial. See id. at 1385. Ward’s prosecutorial
misconduct claim fails.
B. Rodney Ellis
Ellis raises several challenges to the district
court’s determination of his sentence. Ellis
first contends that the district court erred in
its application of sec. 2S1.1(b) of the United
States Sentencing Guidelines ("the Guidelines").
Ellis further asserts that the district court
abused its discretion by sentencing him at the
high end of his Guidelines range.
Ellis’s sec. 2S1.1(b) argument is two-fold.
First, Ellis argues that the district court’s
decision to apply both subsection (1) and
subsection (2) of sec. 2S1.1(b) resulted in
impermissible double counting, citing United
States v. Atterson, 926 F.2d 649, 660 (7th Cir.
1991). The present case, however, is
distinguishable from Atterson. The district judge
did not base Ellis’s sec. 2S1.1(b)(2) enhancement
on the street value of the quantity of drugs
involved in the conspiracy, but rather on actual
instances of money laundering. See United States
v. House, 110 F.3d 1281, 1285 n.3 (7th Cir. 1997)
(distinguishing Atterson). There is no
impermissible double enhancement.
Alternatively, Ellis contends that the district
court’s finding under sec. 2S1.1(b)(2) that the
value of funds laundered exceeded $2 million was
unsupported by the evidence./4 The district
court arrived at this value by holding Ellis
responsible for (1) $750,000 to $1 million
laundered through Pocketown in 1993; (2) $1.5
million laundered into the JetStar aircraft, a
seventy-two foot yacht, and a speed boat which
accompanied the yacht; and (3) $1,107,000
laundered through "Reasons." At sentencing, Ellis
challenged the inclusion of the amounts relating
to the plane, the yacht and speed boat, and
"Reasons." On appeal, Ellis challenges only the
district court’s valuation of Hill’s investment
in Pocketown and the inclusion of amounts
relating to the yacht and accompanying speed
boat.
As previously noted, Ellis did not object to
the valuation of the Pocketown investment at
sentencing. Therefore, our review with respect to
this issue is for plain error. United States v.
Monem, 120 F.3d 645, 647 (7th Cir. 1997). At
sentencing, the district court adopted the
$750,000 to $1 million value for the Pocketown
investment. This value is supported by Michael
Jefferson’s trial testimony and by the
calculations set out in the presentence report.
There is no plain error, and we turn to the
inclusion of the value of the yacht and speed
boat. Because Ellis objected to this inclusion at
sentencing, we review for clear error. United
States v. Gwiazdzinski, 141 F.3d 784, 788 (7th
Cir. 1998). Under this standard, we will reverse
"only if the district court’s findings are
without foundation in the evidence, such that we
are ’left with the definite and firm conviction
that a mistake has been committed.’" House, 110
F.3d at 1283 (quoting United States v. Herrera,
54 F.3d 348, 356 (7th Cir. 1995)). Under U.S.S.G.
sec. 1B1.3(a)(1)(B), Ellis is liable for funds
laundered by his coconspirators as long as the
acts were reasonably foreseeable. Ellis argues
that there was no evidence that he ever used or
even knew of the yacht; however, the trial
testimony of Elisha Tapes supports a finding that
Ellis at the very least had knowledge of the
yacht. Tapes described a trip to Houston, Texas
which included Tapes, Nate Hill, Hill’s mother,
and Ellis, among others. The group flew to Texas
on Hill’s JetStar aircraft. During the flight,
Hill boasted that he owned the plane and was
proud of it. Tapes further testified that, at one
point during the Houston trip, Ellis was present
during a conversation in which Nate Hill,
together with the man who arranged the yacht’s
purchase, were describing and bragging about it.
The district court’s inclusion of the value of
the yacht and its accompanying speed boat in its
sec. 2S1.1(b)(2) calculation was not clearly
erroneous.
Ellis’s remaining challenge to his sentence is
also unpersuasive. Ellis contends that the
district court abused its discretion by
sentencing him at the high end of his Guidelines
range, arguing that the district court’s stated
reasons for imposing a sentence at the top of the
Guidelines range were contradictory and,
therefore, inadequate under 18 U.S.C. sec.
3553(c). A review of the transcript of the
sentencing hearing reveals that the district
court provided a detailed and internally
consistent explanation to justify its decision.
The court recognized that Ellis was not required
to confess, but stated that a sentence at the
high end of the Guidelines range was appropriate
because Ellis failed to show "one ounce of
remorse, one ounce of acceptance of
responsibility, one ounce of some sort of
understanding of why you are here and what you
did[,] . . . one ounce of humanity, [or] one
ounce of recognition." The court informed Ellis
that "it would have been nice at some point for
you, in whatever oblique way you wanted to do it,
to recognize that society was harmed by your
activity." The district judge further noted that
despite Ellis’s insistence that some of the
witnesses lied, he thought the evidence against
Ellis was "overwhelming." This explanation is
both proper and sufficient to satisfy 18 U.S.C.
sec. 3553(c). Therefore, as Ellis’s sentence was
imposed pursuant to the law and within the
applicable Guidelines range, we lack jurisdiction
to review the district court’s placement of the
sentence within the range. See United States v.
Solis, 923 F.2d 548, 551 (7th Cir. 1991). Ellis’s
sentencing challenges fail.
III. CONCLUSION
Ward’s conviction is affirmed. Ellis’s sentence
is affirmed.
/1 Marshals Service regulations will not allow for
the transportation of a prisoner unless the
prisoner has tested negative for tuberculosis.
/2 Fed. R. Evid. 403 provides, "Although relevant,
evidence may be excluded if its probative value
is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence." Under Fed.
R. Evid. 404(b), "Evidence of other crimes,
wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be
admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan
knowledge, identity, or absence of mistake or
accident."
/3 Although counsel for Ward attempted to challenge
additional evidentiary rulings at oral argument,
these issues were not raised in his brief and are
waived. United States v. Magana, 118 F.3d 1173,
1198 n.15 (7th Cir. 1997).
/4 This finding resulted in a six-point enhancement
in Ellis’s base offense level under sec.
2S1.1(b)(2).