United States v. Hatchett, Brannon L.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2305
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRANNON L. HATCHETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 CR 117--John C. Shabaz, Chief Judge.
Argued December 7, 1999--Decided March 26, 2001
Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Brannon
L. Hatchett of distributing crack cocaine and of
aiding and abetting his purchaser’s re-sale of
the same cocaine to an informant and an
undercover officer. Hatchett contends that his
concurrent sentence on the aiding and abetting
charge amounts to a second punishment for the
same offense. He also challenges the admission of
evidence concerning a prior narcotics
transaction, as well as the district court’s
refusal to admit certain fingerprint evidence. We
conclude that Hatchett’s conviction and sentence
on the aiding and abetting charge do not amount
to an impermissible multiple punishment for a
single offense. We also find no abuse of
discretion in the admission of testimony
concerning the prior drug transaction or in the
exclusion of the fingerprint evidence.
I.
In reviewing Hatchett’s conviction, we are
obligated to credit testimony and indulge
inferences that benefit the prosecution. We
therefore recount the facts in the light most
favorable to the government.
Hatchett met John L. Riley at a Madison,
Wisconsin nightclub in October of 1998, and
shortly thereafter Hatchett began to sell crack
cocaine to Riley. Typically, when Riley wanted to
make a purchase, he would contact Hatchett either
by paging him or by telephoning him at the
apartment of Hatchett’s girlfriend, where
Hatchett often stayed.
In November 1998, Tracy Panzer, whose brother
was married to Riley’s sister, telephoned Riley
to ask whether he could obtain an ounce of crack
cocaine for himself and a friend. Unbeknownst to
Riley, Panzer was working as a confidential
informant with the Oneida County Sheriff’s
Department, and his "friend," Dan Hess, was a
deputy sheriff working undercover. After a number
of telephone calls to Hatchett, Riley told Panzer
that he had the cocaine Panzer and his friend
wanted.
On November 24, 1998, Riley met Panzer and Hess
at a PDQ near Riley’s apartment in Madison. Riley
did not have the cocaine with him at that time,
and explained to Panzer and Hess that he needed
to telephone his "guy" in order to get it. Riley
borrowed Hess’s cellular phone for that purpose
and placed a call to the home of Hatchett’s
girlfriend. After completing the call, Hatchett
told the two men that they would have to wait
awhile in order to complete the transaction.
Panzer and Hess then drove Riley to his apartment
complex. Riley invited them in to his apartment
to wait for his source to deliver the cocaine.
The two men declined, however, and Hess went up
to this second-floor apartment alone. There he
contacted Hatchett, arranged for delivery of the
cocaine, and then telephoned Panzer and Hess to
let them know that the narcotic was on its way.
A surveillance officer subsequently observed a
car drive into the parking lot of the apartment
complex, circle the lot, and then leave. Moments
later Hatchett telephoned Riley and said that he
thought there was "heat" in the vicinity of the
apartment building. Riley assured him that
everything was fine and encouraged him to come to
his apartment. A short time later the same car
that had circled and left the parking lot earlier
returned and parked. A man later identified as
Hatchett left the vehicle and entered Riley’s
apartment building. No more than two minutes
later, Riley telephoned Panzer and Hess to tell
them that he had the cocaine and to name the
price ($775) that he wanted. Panzer and Hess, who
were waiting at a local shopping mall, drove back
to Riley’s apartment complex. While they were en
route, Riley left Hatchett in his apartment
awaiting payment and walked downstairs to the
building entryway. He stopped there to collect
his mail and to look outside in order to
determine whether there might be any "heat" in
the parking lot, as Hatchett had suspected. He
satisfied himself that there was none. Impatient
for Panzer and Hess to arrive, Riley telephoned
them again wondering where they were. They
assured him that they were on their way. In fact,
they arrived almost immediately, parked in front
of the apartment building, and spotted Riley
waiting for them in the doorway. Riley walked
over to Panzer’s car, got in the back seat, and
handed to Hess a Marlboro cigarette package
containing a substance that was later determined
to be nearly 10 grams of crack cocaine.
Once Riley had delivered the cocaine, an arrest
signal was given and officers moved in to arrest
Riley. As they did so, Hess saw Hatchett standing
on Riley’s second-floor balcony. Hatchett, who
was ordered to remain where he was, tried to flee
but was unsuccessful.
A grand jury indicted Hatchett on two charges.
R. 11. As elucidated by the government’s
subsequent bill of particulars (R. 31 at 2-3),
Count One alleged that Hatchett knowingly and
intentionally distributed crack cocaine to Riley,
in violation of 21 U.S.C. sec. 841(a)(1), while
Count Two alleged that he aided and abetted
Riley’s subsequent delivery of that same cocaine
to Hess, in violation of 18 U.S.C. sec. 2 and 21
U.S.C. sec. 841(a)(1). Before trial, Hatchett
moved to dismiss Count Two as multiplicitous,
asserting that the indictment effectively charged
him twice for the same crime. R. 22, 32. On the
recommendation of the magistrate judge (R. 41),
the district court denied the motion (R. 52). The
court emphasized that the indictment charged
Hatchett with participating in two distinct
criminal transactions, his own initial
distribution of cocaine to Riley, and Riley’s
subsequent distribution of the cocaine to Hess.
In order to prove Hatchett’s guilt on Count Two,
the court pointed out, the government would have
to establish that the second distribution from
Riley to Hess took place, and that Hatchett
knowingly associated himself with that second
transaction, that he participated in it, and that
he tried to make it succeed. R. 41 at 7, R. 52 at
3. Therefore, the court reasoned, the indictment
did not charge Hatchett twice for the same
offense.
The case proceeded to trial. Hatchett’s defense
was that he was not Riley’s source of cocaine.
Riley was a goldsmith, and Hatchett maintained
that he associated with Riley solely because he
believed he might be able to get jewelry at a
discounted price. Indeed, Hatchett had introduced
his cousin to Riley, and according to the
defense, Riley was in the process of making some
jewelry for his cousin in late November 1998.
That was Hatchett’s explanation for his presence
in Riley’s apartment on the evening of November
24, when he and Riley were arrested. (The police
found no narcotics, no large sums of cash, and no
drug paraphernalia either on Riley’s person or in
his car.)
It turned out, however that there had been a
prior cocaine transaction that brought Hatchett,
Riley, and Tracy Panzer’s brother Robert
together. In late October, 1998 (one month prior
to the events culminating in Hatchett’s
indictment), Riley had mentioned to Robert that
he had a new source for crack cocaine. Robert
expressed interest in obtaining some of the
illicit drug from Riley’s source and asked Riley
to make appropriate arrangements. Robert drove to
Riley’s apartment in Madison in order to retrieve
the cocaine. After he arrived, Riley made a
number of telephone calls to his source. After a
three-hour wait, Hatchett arrived at Riley’s
apartment. After Robert was introduced to
Hatchett and the two had shaken hands, Riley and
Hatchett went into a bathroom together. When they
emerged, Riley turned over an "eight-ball"
quantity of crack cocaine to Robert and kept a
similar amount for himself. Hatchett then left
the apartment. Over Hatchett’s objection, the
district court permitted the government to elicit
testimony from Robert about this October
transaction, reasoning that the evidence was
admissible under Fed. R. Evid. 404(b) in order to
establish plan or preparation, knowledge, and
opportunity. R. 79 at 14-19.
At the close of the defense case, Hatchett’s
counsel offered an uncertified copy of a
fingerprint analysis report issued by the
Wisconsin Crime Laboratory. R. 80 at 268. That
report indicated that the laboratory was unable
to match to either Riley or Hatchett a latent
fingerprint found on a metal cigar box in which
Hatchett had delivered the cocaine to Riley on
November 24. Def. Ex. 4. Judge Shabaz declined to
admit the report into evidence without an
appropriate foundation. R. 80 at 269-72.
The jury convicted Hatchett on both counts of
the indictment. Judge Shabaz ordered him to serve
a prison term of 90 months, to be followed by a
five-year term of supervised release. The judge
did not impose a fine or any restitution
obligation, but he did order Hatchett to pay a
special assessment of $100 on each count of
conviction.
II.
A.
The Double Jeopardy Clause of the Fifth
Amendment provides that no "person [shall] be
subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const., amend. V.
Three separate guarantees inhere in this
constitutional provision: (1) once acquitted of
a charge, a person shall not be prosecuted again
for the same offense; (2) once convicted of a
crime, a person shall not be prosecuted again for
that same crime; and (3) one shall not be
punished twice for the same offense. E.g.,
Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct.
2260, 2264 (1980). It is the third guarantee, if
any, that would potentially apply to Hatchett, to
the extent that his sentence reflects multiple
punishments for what he argues is one offense./1
The Supreme Court has made clear, however, that
the Double Jeopardy Clause proscribes multiple
punishments for a single offense only when those
punishments are imposed in successive
proceedings. Hudson v. United States, 522 U.S.
93, 99, 118 S. Ct. 488, 493 (1997), citing
Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct.
673, 678 (1983). "With respect to cumulative
sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater
punishment than the legislature intended."
Hunter, 459 U.S. at 366, 103 S. Ct. at 678; see
also Ohio v. Johnson, 467 U.S. 493, 499, 104 S.
Ct. 2536, 2540-41 (1984); Whalen v. United
States, 445 U.S. 684, 688, 100 S. Ct. 1432, 1436
(1980). The presumption is that the legislature
did not intend to impose two punishments for a
single offense. Rutledge v. United States, 517
U.S. 292, 297, 116 S. Ct. 1241, 1245 (1996). Of
course, the first question a court must answer in
any such case is whether indeed the defendant has
been punished twice for the same offense.
The two punishments imposed on Hatchett are
based on two separate transactions--Hatchett’s
distribution of crack cocaine to Riley, and
Riley’s re-distribution of that cocaine to Panzer
and Hess. Blockburger v. United States, 284 U.S.
299, 301-02, 52 S. Ct. 180, 181 (1932), leaves no
doubt that each successive distribution of a
narcotic amounts to a separate offense and, as
such, may be punished separately. It was this
point on which the district and magistrate judges
focused. Both emphasized that Hatchett was not at
peril of being punished twice for a single
transaction. His prospective liability on the two
charges instead sprang from his alleged
participation as the distributor of crack cocaine
to Riley in the first instance, and as an aider
and abettor of Riley’s subsequent distribution to
Panzer and Hess. R. 52 at 2-3; R. 41 at 7-8.
Yet, as we shall see, Hatchett’s asserted
liability as an aider and abetter of the second
of these transactions-- Riley’s distribution of
the cocaine to Panzer and Hess-- depends largely
on proof that Hatchett supplied Riley with the
cocaine. Consequently, the fact that there were
two transactions in this case does not resolve
the multiple-punishments question. See Brown v.
Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 2227
(1977) ("The Double Jeopardy Clause is not such
a fragile guarantee that prosecutors can avoid
its limitations by the simple expedient of
dividing a single crime into a series of temporal
or spatial units."). We must consider whether
Hatchett actually committed two separate offenses
by engaging in one act or transaction--the sale
of cocaine to Riley. In so doing, we shall look
to cases that deal with multiple prosecutions as
well as multiple punishments, as both proceed
under the same analytical framework. See United
States v. Dixon, 509 U.S. 688, 696, 113 S. Ct.
2849, 2856 (1993).
Dixon informs us that in deciding whether two
offenses are the same or not, our inquiry must
focus on the elements of each of the charged
offenses rather than the underlying conduct.
Dixon re-established the "same elements" test
articulated by Blockburger as the one and only
test that courts are to apply in considering
whether a defendant may be prosecuted or punished
twice based on a single act or transaction. Id.
at 703-12, 113 S. Ct. at 2859-64; see
Blockburger, 284 U.S. at 304, 52 S. Ct. at 182.
Blockburger framed the inquiry as follows:
The applicable rule is that, where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one is whether each provision
requires proof of an additional fact that the
other does not.
284 U.S. at 304, 52 S. Ct. at 182. Grady v.
Corbin, 495 U.S. 508, 521-22, 110 S. Ct. 2084,
2093 (1990), had added a second inquiry to the
analysis that turned on the conduct underlying
the two offenses as opposed to the elements of
each crime. Dixon, however, overruled Grady,
leaving Blockburger’s "same elements" test as the
definitive standard. See 509 U.S. at 711-12, 113
S. Ct. at 2864. (We shall have more to say about
Grady as well as Dixon below.)
The elements of the two crimes at issue here
are, of course, distinct. In order to prove
Hatchett guilty of distributing cocaine base in
violation of 21 U.S.C. sec. 841(a)(1), the
government was required to show that Hatchett
distributed the crack cocaine to Riley, that he
did so knowingly and intentionally, and that he
knew he was distributing a controlled substance.
E.g., United States v. Clarke, 227 F.3d 874, 882
(7th Cir. 2000), cert. denied, 121 S. Ct. 1165(2001). By contrast, in order to prove Hatchett
guilty of aiding and abetting Riley’s
distribution of cocaine base, in violation of 18
U.S.C. sec. 2 and 21 U.S.C. sec. 841(a)(1), the
government was required to show that (1) Riley
distributed crack cocaine, that he did so
knowingly and intentionally, and that he knew he
was distributing a controlled substance, and in
addition that (2) Hatchett knowingly associated
himself with Riley’s delivery, that Hatchett
participated in that delivery, and that he tried
to make it succeed. See, e.g., United States v.
Johnson, 127 F.3d 625, 628 (7th Cir. 1997); see
also United States v. Valencia, 907 F.2d 671, 680
(7th Cir. 1990). Each offense obviously includes
an element that the other does not: The first
charge has nothing whatsoever to do with Riley’s
re-distribution of the cocaine to Panzer and
Hess; and the second charge, which is focused on
Riley’s re-distribution, facially would seem not
to depend on proof that Hatchett distributed the
cocaine to Riley. Indeed, in the abstract, it is
easy to see how Hatchett could be found guilty on
one crime but not the other. If Riley had done
nothing at all with the cocaine that Hatchett
sold to him, for example, Hatchett would still be
guilty of distributing the cocaine. And Hatchett
could have aided and abetted Riley’s distribution
of the cocaine to Panzer and Hess in a variety of
ways other than by supplying the cocaine to
Riley.
However, putting theoretical possibilities aside
to focus on the facts of this case, it is clear
that Hatchett could not have been convicted on
the aiding and abetting charge in the absence of
proof that he knowingly and intentionally
distributed the cocaine to Riley. Hatchett did
nothing to further Riley’s transaction with
Panzer and Hess apart from supplying Riley with
the cocaine. The government’s theory of the case
was that Hatchett was not indifferent to the
reasons for which Riley was purchasing the
cocaine from him, and instead delivered the
cocaine to Riley specifically for re-sale, with
the understanding that Riley would pay him for
the cocaine after Riley himself received payment
from his customers. See R. 31 at 4, R. 81 at 37.
Thus, although Count One of the indictment--
Hatchett’s distribution to Riley--stood on its
own, the aiding and abetting charge set forth in
Count Two did not. Indeed, the government
conceded at argument that even if Hatchett had
been indicted only for aiding and abetting
Riley’s sale, it still would have been required
to prove that Hatchett delivered the cocaine to
Riley.
Where proof of one offense necessarily entails
proof that another offense occurred, rendering
the latter a lesser included offense of the
former, the two offenses are deemed to be the
"same" for purposes of Blockburger. See Rutledge,
517 U.S. at 297, 116 S. Ct. at 1245; Brown, 432
U.S. at 168-69, 97 S. Ct. at 2227. In such cases,
the greater of the two offenses will, as
Blockburger demands, require proof of an extra
element not found in the other offense. But the
lesser offense, by contrast, will require no
proof other than that which is called for to
convict on the greater charge. See United States
v. 9844 S. Titan Court, Unit 9, Littleton, Col.,
75 F.3d 1470, 1489 (10th Cir. 1996), overruled in
part on other grounds by United States v. Ursery,
518 U.S. 267, 116 S. Ct. 2135 (1996); see also
Brown, 432 U.S. at 168, 97 S. Ct. at 2226-27.
"The greater offense is therefore by definition
the ’same’ for purposes of double jeopardy as any
lesser offense included in it." Ibid. See, e.g.,
Rutledge, 517 U.S. at 300, 116 S. Ct. at 1247
(because conspiring to distribute a controlled
substance amounts to a lesser included offense of
conducting a continuing criminal enterprise in
concert with others, the two are not genuinely
separate crimes that may be punished separately);
Whalen v. United States, supra, 445 U.S. at 694,
100 S. Ct. at 1439 (rape and killing in the
course of a rape are not separate offenses, where
proof of the rape amounts to a necessary element
of the felony murder charge); Brown, 432 U.S. at
168, 97 S. Ct. 2226-27 (joyriding and auto theft
are not separate offenses, where the lesser
offense of joyriding requires no proof beyond
what is required to prove auto theft).
In a factual sense, one could view the
distribution charge against Hatchett as a lesser
included offense of the aiding and abetting
charge. It was by supplying Riley with crack
cocaine that Hatchett was said to have aided and
abetted Riley’s distribution of the cocaine to
Panzer and Hess. Consequently, in order to prove
Hatchett guilty on the aiding and abetting
charge, the government inevitably had to
establish each of the elements necessary to
convict Hatchett on the distribution charge.
Obviously, it had to prove that Hatchett
distributed a controlled substance to Riley, for
without that delivery, Riley would have been
unable to make the sale to Panzer and Hess. The
government also had to show that the transfer
from Hatchett to Riley was knowing and
intentional in order to prove that Hatchett
knowingly assisted Riley’s distribution of the
cocaine to his customers. For the same reason,
the government was required to show that Hatchett
realized he was delivering a controlled
substance, for if Hatchett was ignorant of that
fact, he could not have knowingly aided Riley’s
re-distribution of the cocaine.
However, there is one readily apparent respect
in which the relationship between the two charges
at issue in this case differs from the lesser-
included-offense status that courts have cited in
other cases. Distribution of a controlled
substance obviously is not always a lesser
included offense of aiding and abetting the
distribution of a controlled substance. One can
aid and abet a narcotics transaction in myriad
ways other than by supplying the controlled
substance. Cf. Illinois v. Vitale, supra, 447
U.S. at 419-20, 100 S. Ct. at 2267 ("If, as a
matter of Illinois law, a careless failure to
slow is always a necessary element of
manslaughter by automobile, then the two offenses
are the ’same’ under Blockburger and Vitale’s
trial on the latter charge would constitute
double jeopardy under Brown v. Ohio.") (emphasis
supplied). It simply happens to be the case here
that the government could not convict Hatchett on
the aiding and abetting charge without
establishing each of the elements of the
companion distribution charge.
Precedent does make clear that one offense need
not invariably be a lesser included offense of
another in order for the two to be deemed the
same offense. In Harris v. Oklahoma, 433 U.S.
682, 97 S. Ct. 2912 (1977) (per curiam), the
petitioner and his accomplice had robbed a
grocery store, and in the course of the robbery
the accomplice shot and killed a store clerk. The
petitioner was first tried and convicted of
felony murder, with the State citing armed
robbery as the underlying felony. Subsequently he
was tried and convicted for the robbery itself.
A unanimous Supreme Court vacated the second
conviction: "When, as here, conviction of a
greater crime, murder, cannot be had without
conviction of the lesser crime, robbery with
firearms, the Double Jeopardy Clause bars
prosecution for the lesser crime, after
conviction of the greater one." Id. at 682, 97 S.
Ct. at 2913. Although the Supreme Court did not
expressly acknowledge the point, it was
nonetheless clear from the state court’s opinion
that a felony murder charge could have been
predicated on a number of felonies other than
armed robbery, see Harris v. State, 555 P.2d 76,
80 (Ok. Crim. App. 1976), and consequently that
robbery was not per se a lesser included offense
in relation to felony murder.
Three years later, in Vitale, the Court
acknowledged the obvious implication of Harris--
that one offense need not always constitute a
lesser included offense of another in order to
raise the double jeopardy bar, but that it may be
recognized as such within the confines of an
individual case.
The Oklahoma felony-murder statute [at issue in
Harris] on its face did not require proof of a
robbery to establish felony murder; other
felonies could underlie a felony-murder
prosecution. But for the purposes of the Double
Jeopardy Clause, we did not consider the crime
generally described as felony murder as a
separate offense distinct from its various
elements. Rather, we treated a killing in the
course of a robbery as itself a separate
statutory offense, and the robbery as a species
of lesser-included offense.
447 U.S. at 420, 100 S. Ct. at 2267 (footnote
omitted).
The Supreme Court’s more recent handling of
Dixon, although it produced no majority opinion,
confirms this point. In Dixon, the two
respondents had been convicted of criminal
contempt. One of the respondents, Dixon, by
possessing cocaine with the intent to distribute,
had violated a pre-trial release order issued in
an unrelated case that prohibited him from
committing "any criminal offense," and the other,
Foster, by assaulting and threatening his
estranged wife, had violated a civil protection
order that required him not to "molest, assault,
or in any manner threaten or physically abuse"
her. Both were convicted of criminal contempt of
court. The question presented to the Court was
whether the contempt convictions prevented the
government from later trying the men for the
underlying acts of cocaine possession, assault,
and threats to injure another. Most of the
Court’s members agreed that Grady v. Corbin would
bar the later prosecutions, as they implicated
the same conduct on which the contempt
convictions were based. See 509 U.S. at 703-04,
113 S. Ct. at 2859-60 (majority); id. at 761-63,
113 S. Ct. at 2890-91 (Souter, J., concurring in
the judgment in part and dissenting in part)./2
Yet, as we have noted, a majority of the justices
elected to jettison Grady’s "same conduct" test,
leaving the "same elements" approach of
Blockburger as the governing framework. Id. at
704-12, 113 S. Ct. at 2860-64. When they
considered the extent to which the elements of
contempt of court were distinct from the elements
of the other offenses with which the respondents
were charged, seven of the Court’s nine members
looked to the lesser-included-offense analysis of
Harris, Brown v. Ohio, and like cases as the most
pertinent authority. See 509 U.S. at 698, 113 S.
Ct. at 2857 (opinion of Scalia, J.); id. at 714,
717-19, 113 S. Ct. at 2865, 2867-68 (opinion of
Rehnquist, C.J.); id. at 731-32, 113 S. Ct. at
2875 (opinion of White, J.). Although that
analysis led these justices to widely disparate
conclusions, set forth in three separate
opinions, each of those opinions reflects
agreement with the proposition the lesser-
included-offense analysis is contextual, and that
one offense need not amount to a lesser included
offense of another in all cases before the two
may be treated as the same offense in one case.
Justice Scalia’s opinion, joined in its lesser-
included-offense analysis only by Justice
Kennedy, reflected the judgment of the Court.
Justice Scalia emphasized that the relationship
between the criminal offenses under scrutiny
cannot be assessed in the abstract, wholly
divorced from the particular circumstances of the
case:
We have described our terse per curiam opinion in
Harris as standing for the proposition that, for
double jeopardy purposes, "the crime generally
described as felony murder" is not "a separate
offense distinct from its various elements."
Illinois v. Vitale, 447 U.S. 410, 420-421, 100 S.
Ct. 2260, 2267, 65 L. Ed. 2d 228 (1980). Accord,
Whalen v. United States, 445 U.S. 684, 694, 100
S. Ct. 1432, 1439, 63 L. Ed. 2d 715 (1980). So too
here, the "crime" of violating a condition of
release cannot be abstracted from the "element"
of the violated condition. The Dixon court order
incorporated the entire criminal code in the same
manner as the Harris felony-murder statute
incorporated the several enumerated felonies.
Here, as in Harris, the underlying substantive
criminal offense is "a species of lesser-included
offense." Vitale, supra, 447 U.S., at 410, 100 S.
Ct., at 2267. Accord, Whalen, supra.
509 U.S. at 698, 113 S. Ct. at 2857 (footnote
omitted). In other words, because Dixon’s pre-
trial release order prohibited him from
committing any act that constituted a crime under
the local criminal code, proof of such a criminal
act was, in this context, a necessary element of
the contempt charge. Justice Scalia thus
concluded that the underlying criminal act--
Dixon’s narcotics offense--constituted a lesser
included offense of the criminal contempt charge
and, as such, could not be prosecuted after Dixon
had already been convicted and punished for
contempt. Id. at 697-98, 113 S. Ct. at 2856-57.
Likewise, he concluded that Foster could not be
prosecuted for simple assault, because his
previous contempt conviction for violating the
civil protection order--which, in relevant part,
required him not to "assault" his estranged wife-
-had rested on proof that he had committed an
assault upon her in violation of local law. Id.
at 700, 113 S. Ct. at 2858./3 However, Justice
Scalia concluded that the other charges
subsequently brought against Foster did not
constitute lesser included offenses of the
contempt charge, because each mandated proof of
an element that was not required in order to
establish a violation of the civil protection
order, and thus it was not necessary to prove
each and every element of these offenses in order
to prove Foster guilty of contempt. Id. at 700-
03, 113 S. Ct. at 2858-59. Assault with intent to
kill, obviously, demanded proof of a specific
intent to kill, whereas proof of such an intent
was wholly unnecessary to establish a violation
of the protection order. Id. at 701, 113 S. Ct.
at 2858-59. Similarly, criminal threats to kidnap
another person, and to injure the person or
property of another, required proof of specific
types of threats, whereas the protection order--
which required Foster not to "in any manner
threaten" his estranged wife--proscribed the
entire universe of threats, including threats
which might not violate the local criminal code.
Id. at 702, 113 S. Ct. at 2859. Proof that Foster
had violated the civil protection order thus did
not entail proof of each and every element of
these offenses, and left the door open to
subsequent prosecution. Id. at 702-03 & n.8, 113
S. Ct. at 2859 & n.8
In contrast to Justices Scalia and Kennedy,
Chief Justice Rehnquist, joined by Justices
O’Connor and Thomas, did not think that Harris’s
lesser-included-offense analysis barred any of
the later charges against Dixon and Foster. He
did not quarrel with the notion that a conviction
for a greater offense like felony murder would
bar subsequent prosecution for any of the myriad
felonies that might have served as the predicate
for the felony murder charge:
In Harris, we held that a conviction for felony
murder based on a killing in the course of an
armed robbery foreclosed a subsequent prosecution
for robbery with a firearm. Though the felony-
murder statute in Harris did not require proof of
armed robbery, it did include as an element proof
that the defendant was engaged in the commission
of some felony. We construed this generic
reference to some felony as incorporating the
statutory elements of the various felonies upon
which a felony-murder conviction could rest.
Id. at 717, 113 S. Ct. at 2867 (emphasis in
original). Consequently, notwithstanding the fact
that such an offense could be predicated on proof
of any number of lesser offenses, the Chief
Justice agreed that once a person has been
convicted of the greater offense based on proof
of a particular predicate, double jeopardy
forbids prosecution for that predicate. See ibid.
Where Justice Rehnquist parted ways with Justice
Scalia was in identifying the pertinent elements
of the two crimes for purposes of the Blockburger
inquiry. In the Chief Justice’s view, a court
must confine its focus to the statutory elements
of each offense. Felony murder, for example, is
typically defined as a killing committed in the
course of one of a number of felonies; proof of
the felony thus constitutes an express element of
the murder charge. The crime of contempt, by
contrast, simply requires proof of an order known
to the defendant, and a violation of that order.
Proof that the contemnor committed a separate
crime is not required. Only by looking beyond the
statutory elements of contempt, to the terms of
the underlying court orders, could Justice Scalia
say that the contempt convictions necessarily
entailed proof that Dixon and Foster had
committed the criminal acts with which they were
later charged. The Chief Justice believed it was
inappropriate to define contempt so expansively.
See id. at 718-19, 113 S. Ct. at 2867-68.
Justice White, on the other hand, joined in
relevant part by Justice Stevens, believed that
the lesser-included-offense analysis barred
prosecution for all of the crimes for which Dixon
and Foster were charged in the wake of their
contempt convictions. Like Justice Scalia,
Justice White believed that one had to look to
the terms of the court orders that the
respondents had been found to have violated in
order to determine whether their contempt
convictions necessarily entailed proof of the
later-charged crimes. See id. at 731-32, 113 S.
Ct. at 2874-75. He therefore agreed with Justice
Scalia that because Dixon’s pre-trial release
order forbade him in relevant part from
committing any act in violation of the local
criminal code, the contempt charge against him
had necessarily entailed proof that he had
committed such a crime. Dixon could not later be
prosecuted for possessing a narcotic with the
intent to distribute, then, when his contempt
conviction had required proof of that very
criminal act. Id. at 731-33; 113 S. Ct. at 2874-
75. Like Justice Scalia, Justice White also
construed the civil protection order entered
against Foster to prohibit him from committing
the crime of assault. Having already been
convicted of contempt based on the commission of
an assault upon his estranged wife, Foster thus
could not later be charged with the crime of
simple assault. Id. at 731-33 & n.7, 113 S. Ct.
at 2874-75 & n.7. In contrast to Justice Scalia,
however, Justice White believed that a contempt
conviction that rested on proof of a simple
assault also barred subsequent prosecution for
assault with intent to kill, because simple
assault is a lesser included offense of assault
with intent to kill. Id. at 732-33 & n.7, 113 S.
Ct. at 2875 & n.7. Further, whereas Justice
Scalia read the protection order’s reference to
threats upon Foster’s estranged wife as a
reference to all types of threats, including
those which did not amount to crimes, Justice
White construed the order to forbid only threats
that violated local law. Consequently, having
already been charged and convicted of contempt
based in part on such criminal threats, Foster
could not later be charged with threatening to
kill or injure the person or property of another,
because those offenses were either the same as,
or subsumed, the types of criminal threats that
led to the contempt proceeding. Ibid./4
In sum, these three opinions reflect differences
among the Supreme Court’s members as to how one
should define the elements of the crimes under
scrutiny for purposes of the lesser-included-
offense analysis. Chief Justice Rehnquist and his
contingent, as we have discussed, would look
solely to the formal, statutory elements of the
offenses to decide whether one offense required
proof of another. Justices Scalia and White and
their contingents, on the other hand, would look
a bit further. Where, for example, the defendant
has been convicted of contempt, as the
respondents in Dixon were, they would look to the
terms of the order that the defendant had
disobeyed; and to the extent that order forbade
the defendant from committing particular criminal
acts, they would treat proof of such acts as an
element of the contempt charge. However, although
these three camps differed as to how one
identifies the pertinent elements of an offense
for double jeopardy purposes, all agreed on one
important premise: that an offense need not
always be a lesser included offense of the other
in order for the two to be treated as the "same"
offense under Blockburger. If one offense, among
many possibilities, serves in a particular case
as the predicate for a greater offense like
felony murder, then the defendant cannot be
prosecuted or punished twice for both offenses,
because the greater offense in that case
necessarily requires proof of the lesser, and the
two are in that sense one crime.
So, the fact that distributing a narcotic does
not invariably constitute a lesser included
offense of aiding and abetting does not foreclose
the possibility that they could be considered the
"same" offense for purposes of the double
jeopardy analysis. Yet there remains one clear
point of distinction that separates this case
from both Harris and Dixon. In each of those
cases, the greater offense demanded proof that
another criminal offense had occurred. In Harris,
the government had to prove that the defendant
had committed a felony in order to prove him
liable for felony murder. In Dixon, the court
orders, either explicitly or implicitly, required
the two respondents not to engage in criminal
activity, so a conviction for criminal contempt
required proof that they had committed one of the
proscribed crimes. In each case, a variety of
criminal acts might have sufficed as the
predicate, but proof of some type of independent
crime was necessary to establish the greater
offense. Aiding and abetting, by contrast, does
not demand, as one of its elements, proof that
another crime occurred. See 18 U.S.C. sec. 2;
Federal Criminal Jury Instructions of
the Seventh Circuit, No.
5.06, at 78-79 (1999). One can aid and abet the
commission of an offense without engaging in
activity that amounts to a crime in and of
itself. See generally United States v. Irwin, 149
F.3d 565, 571-74 (7th Cir.), cert. denied, 525
U.S. 1031, 119 S. Ct. 571 (1998); United States
v. Ortega, 44 F.3d 505, 507-08 (7th Cir. 1995).
Here it happens to be the case that Hatchett
aided and abetted Riley’s distribution of cocaine
by committing an act that does constitute a
crime--Hatchett supplied Riley with the cocaine.
But insofar as the elements of aiding and
abetting are concerned, that point is incidental.
Again, the government could have established
Hatchett’s liability as an aider and abettor in
any number of ways that do not involve proof of
an independent crime. See, e.g., Irwin, 149 F.3d
at 575-76 (defendant aided and abetted drug
conspiracy by, inter alia, acting as nominal
owner of restaurant that served as meeting place
for conspirators and by working at restaurant to
maintain appearance that it was a legitimate
business); Ortega, 44 F.3d at 507-08 (defendant
aided and abetted narcotics sale by, inter alia,
warranting to informant-buyer that the heroin he
was purchasing was of "the best" quality).
Prior to Dixon, Vitale would have been of some
help to Hatchett on this point. In Vitale, a
teenaged driver had struck and killed two
children. A police officer cited him at the scene
for failing to reduce his speed in order to avoid
an accident, and he subsequently pleaded guilty
to that charge. Subsequently, the State initiated
a juvenile proceeding alleging that the driver
had committed involuntary manslaughter. The
Illinois Supreme Court held that the manslaughter
charge was barred by the Double Jeopardy Clause,
reasoning that the lesser offense (failure to
reduce speed) required no proof beyond that which
was necessary to establish that the juvenile had
committed involuntary manslaughter and that,
consequently, the two offenses were essentially
the same. The U.S. Supreme Court agreed that
"[i]f, as a matter of Illinois law, a careless
failure to slow is always a necessary element of
manslaughter by automobile, then the two offenses
are the ’same’ under Blockburger and Vitale’s
trial would constitute double jeopardy under
Brown v. Ohio." 447 U.S. at 419-20, 100 S. Ct. at
2267 (emphasis supplied). However, the State
contended that it could establish vehicular
manslaughter without necessarily having to prove
that the driver failed to reduce his speed (id.
at 418, 100 S. Ct. at 2266) and the Supreme Court
acknowledged that this was a genuine possibility
(id. at 419, 100 S. Ct. at 2266-67). It therefore
vacated the Illinois Supreme Court’s judgment and
remanded for further proceedings. The mere
possibility that the State might rely upon the
driver’s failure to slow in order to establish
that he committed involuntary manslaughter was
not enough to trigger the double jeopardy bar,
the Court explained. Id. at 419, 100 S. Ct. at
2266-67. Yet, the Court also indicated in dictum
that a double jeopardy problem might be presented
if it turned out that the State in fact would
have to rely upon the driver’s failure to slow in
order to establish vehicular manslaughter.
[I]t may be that to sustain its manslaughter case
the State may find it necessary to prove a
failure to slow or to rely on conduct necessarily
involving such failure; it may concede as much
prior to trial. In that case, because Vitale has
already been convicted for conduct that is a
necessary element of the more serious crime for
which he has been charged, his claim of double
jeopardy would be substantial under Brown [v.
Ohio] and our later decision in Harris v.
Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53
L. Ed. 2d 1054 (1977).
447 U.S. at 420, 100 S. Ct. at 2267.
Vitale thus signaled the Court’s willingness to
expand the lesser-included-offense analysis of
Harris beyond the relatively limited category of
cases in which one offense (felony murder being
the obvious example) always requires proof that
some other, lesser offense occurred. The Illinois
involuntary manslaughter statute did not require
proof that the defendant had committed another
offense, it simply required proof that the
defendant had recklessly engaged in an act that
was likely to cause death or great bodily harm.
See 447 U.S. at 413 n.4, 100 S. Ct. at 2263 n.4.
Even so, the Court appeared ready to hold that
if, as a matter of fact, the prosecution in a
particular case cannot establish the defendant’s
guilt on the greater offense without proving him
guilty of the lesser offense as well, then the
two offenses are the same for purposes of the
double jeopardy analysis.
The scenario that Vitale envisioned is exactly
the one we confront here. As we have explained,
the aiding and abetting charge did not, on its
face, demand proof that Hatchett distributed
cocaine or that he engaged in any other act that
was criminal in and of itself. But as it happens,
the government could not prove him guilty of
aiding and abetting Riley without also proving
each and every element of the distribution
charge.
But Vitale’s dictum has now been rejected, as
the short life of Grady v. Corbin makes clear.
Grady, as we mentioned earlier, embraced a
double-jeopardy test that asked not only whether
the two offenses in question had the same
elements, but whether they rested on the same
conduct. Grady, like Vitale, arose out of an
automobile accident. The respondent, Corbin, had
driven his automobile across the double yellow
line of a highway and collided with two oncoming
vehicles. The driver of one of those vehicles
eventually died as a result of the collision, and
her husband sustained serious injuries.
Immediately after the accident, Corbin was cited
for driving while intoxicated and for failing to
keep to the right of the median. He pleaded
guilty to those charges; and the sentencing
judge, who was unaware that anyone had died as a
result of the accident, suspended Corbin’s
driver’s license for six months and imposed a
modest fine. A grand jury subsequently indicted
Corbin on charges of, inter alia, reckless
manslaughter and criminally negligent homicide in
connection with the death of the one accident
victim, and reckless assault in connection with
the injuries to the other. The prosecution filed
a bill of particulars identifying three acts on
which it would rely to establish that Corbin had
operated his automobile in a negligent or
reckless fashion: (1) driving while intoxicated;
(2) failing to keep to the right of the median,
and (3) driving at a rate of speed that was
excessive given the weather and road conditions.
Taking its cue from Vitale, the Supreme Court
concluded that double jeopardy principles
prevented the prosecution of Corbin on the new
charges. "As we suggested in Vitale, the Double
Jeopardy Clause bars any subsequent prosecution
in which the government, to establish an
essential element of an offense charged in that
prosecution, will prove conduct that constitutes
an offense for which the defendant has already
been prosecuted." 495 U.S. at 521, 110 S. Ct. at
2093. Notably, none of the charges at issue in
Grady required proof that another offense per se
had occurred, as was true in Harris, for example;
they simply required proof that Corbin had
engaged in negligent or reckless behavior. That
point was plainly immaterial to the Court. In the
Court’s view, so long as the circumstances of the
case required the prosecution to establish the
same conduct that underlay a prior conviction,
the Double Jeopardy Clause was implicated. See
id. at 521, 110 S. Ct. at 2093 ("[t]he critical
inquiry is what conduct the State will prove . .
."). The State therefore could not prosecute
Corbin for reckless manslaughter, negligent
homicide or reckless assault if, in order to
establish the requisite negligence or
recklessness, the State would have to prove that
Corbin drove while intoxicated or failed to keep
to the right of the median, because those
manifestations of negligence and/or recklessness
amounted to offenses for which he had already
been convicted. Id. at 522-23, 110 S. Ct. at
2094. On the other hand, the State was free to
prosecute Corbin a second time if it could
establish his negligence or recklessness by proof
of other conduct. Id. at 523, 110 S. Ct. at 2094.
The State’s bill of particulars did identify one
act--driving at an excessive rate of speed--that
stood apart from the conduct underlying Corbin’s
previous convictions. At the same time, the bill
also disclosed that driving while intoxicated and
failing to remain on the right side of the median
were essential to the State’s case. Id. at 523,
110 S. Ct. at 2094. That was enough for the Court
to resolve the double jeopardy question:
By its own pleadings, the State has admitted that
it will prove the entirety of the conduct for
which Corbin was convicted--driving while
intoxicated and failing to keep right of the
median--to establish essential elements of the
homicide and assault offenses. Therefore, the
Double Jeopardy Clause bars this successive
prosecution . . . .
Ibid.
In all material respects, the instant case is
indistinguishable from Grady./5 The government
has conceded that in order to prove Hatchett
guilty of abetting and abetting Riley’s
distribution of cocaine to Panzer and Hess, it
necessarily had to establish that Hatchett
supplied the cocaine to Riley. That concession,
like the bill of particulars in Grady, leaves no
doubt that conviction on the second, greater
charge depends on proof of conduct that
constitutes the first, lesser offense. If Grady
remained good law, then, we would deem the
distribution charge and the aiding and abetting
charge to be a single offense for which (absent
a congressional signal to the contrary) only one
punishment could be imposed.
But Grady, after all, has been overruled. The
Supreme Court in Dixon unequivocally rejected
Grady’s "same conduct" test, see 509 U.S. at 711,
113 S. Ct. at 2864 ("[Grady] was a mistake"), and
in equally clear terms, the Court emphasized that
the double jeopardy inquiry must focus on the
elements of the two offenses in question, rather
than conduct underlying them, see 509 U.S. at
705-10, 113 S. Ct. at 2860-63. Dixon did leave
undisturbed the lesser-included offense rationale
of Harris and similar cases, but the Court’s
discussion of those precedents again makes clear
that the lesser-included-offense analysis turns
on the elements of the crimes rather than the
conduct involved. Indeed, in assessing the
preclusive effect of the respondents’ contempt
convictions, each of the three justices who wrote
opinions applying the lesser-included-offense
analysis focused on the extent to which the
contempt charges had required proof of an
independent offense--possession of narcotics with
the intent to distribute, assault, and so on.
Compare id. at 697-98, 705-07, 113 S. Ct. at
2856-57, 2860-62 (Scalia, J.), and id. at 732-33
& n.7, 113 S. Ct. at 2875 & n.7 (White, J.), with
id. at 717, 113 S. Ct. at 2867 (Rehnquist, C.J.).
The crime of aiding and abetting, as we have
explained, has no element that incorporates
another offense. It simply happens to be the case
here that in order to prove that Hatchett
facilitated Riley, the government had to
establish conduct that constituted a separate
offense with which Hatchett had also been
charged. But the fact that the act by which
Hatchett aided and abetted Riley’s distribution
of cocaine constituted an independent crime is
utterly irrelevant to Hatchett’s liability as an
aider and abettor. The government had only to
prove the conduct underlying the distribution
charge against Hatchett in order to prove him
liable for Riley’s re-distribution to Panzer and
Hess; it did not have to prove that he committed
the offense of distribution (or any other
independent crime). Only Vitale’s dictum and
Grady’s holding recognized this scenario as one
in which multiple prosecutions or punishments
would be forbidden. But Dixon has firmly closed
the door on both.
We note that the First Circuit, in a similar
case that also post-dates Dixon, has reached the
same conclusion that we do today. See United
States v. Colon-Osorio, 10 F.3d 41, 45-46 (1st
Cir. 1993), cert. denied, 512 U.S. 1239, 114 S.
Ct. 2749 (1994). In Colon-Osorio, a defendant who
had been released on bond while awaiting trial
failed to appear on two occasions. After he was
apprehended, the defendant was tried and
convicted for the failure to appear following
release on bail. Based on the weapons that were
found in his possession at the time of his
arrest, a grand jury later indicted him on
multiple charges of possessing a firearm while a
fugitive from justice. The district court
dismissed those charges on double jeopardy
grounds, but the First Circuit reversed. The
appellate court noted that the failure-to-appear
and fugitive-in-possession charges each required
proof that the other did not: the former required
proof that the defendant had been released on
bail, but that proof was not invariably necessary
in order to show that the defendant was a
fugitive from justice; and the fugitive-in-
possession charge required proof that the
defendant possessed a firearm, whereas the
failure-to-appear charge obviously did not. Id.
at 45. The district court had concluded
nonetheless that the failure-to-appear charge was
essentially a lesser-included offense of the
fugitive-in-possession charge. The lower court
had pointed out that in order to prove that the
defendant was a fugitive from justice, the
government would have to prove that he fled in
order to avoid prosecution, and that showing
would in turn require proof of the very same
facts that were necessary to establish that he
failed to appear, i.e., that he was under
indictment, that he was required to appear before
a court, and that he failed to do so. See id. The
appellate court found this rationale dubious in
light of Dixon and its focus upon offense
elements rather than conduct. Id. at 45-46. In
any case, the court continued, the government was
not relying on the offense of bail-jumping in
order to establish that he was a fugitive; "[t]he
government merely will rely on the same conduct
that the government proved to establish Colon-
Osorio’s bail-jumping offense." Id. (emphasis in
original). The fact that this conduct happened to
constitute a separate offense did not raise a
double jeopardy problem, in the court’s view.
Indeed, the district court’s analysis is
precisely what the Dixon Court rejected. Under
Dixon, the fact that the government will attempt
to prove that Colon-Osorio was a fugitive by
referring to the same conduct used to prove the
elements of failure to appear does not offend the
Double Jeopardy Clause. The same actions can
constitute an offense under two distinct statutes
and can be prosecuted separately under each
statute as long as the statutes do not define a
single offense within the meaning of Blockburger.
United States v. White, 1 F.3d 13, 17 (D.C. Cir.
1993); see also Blockburger, 284 U.S. at 304, 52
S. Ct. at 182 (quoting More v. Commonwealth, 108
Mass. 433 (1871)).
10 F.3d at 46. See also United States v. Forman,
180 F.3d 766, 768-70 (6th Cir. 1999); United
States v. Lanoue, 137 F.3d 656, 661-62 (1st Cir.
1998); United States v. Celestine, 902 F. Supp.
1058, 1060-62 (D. Alaska 1995), aff’d on other
grounds without published op., 83 F.3d 429, text
in Westlaw, 1996 WL 184469 (9th Cir. April 17,
1996).
For all of these reasons, we conclude that the
offenses charged in Counts One and Two of the
indictment did not constitute a single offense
within the Blockburger framework. The two charges
were distinct in the sense that each required
proof of an element that the other did not.
Moreover, although, under the circumstances of
this particular case, the aiding and abetting
charge required proof of the very same conduct
which underlay the distribution charge, the
aiding and abetting charge did not demand proof
that Hatchett had committed any other crime, be
it narcotics distribution or something else.
Consequently, in light of Dixon, the distribution
charge cannot be described as a lesser included
offense of the aiding and abetting charge.
B.
Hatchett contends that the district court abused
its discretion in permitting Robert Panzer to
testify that he had purchased crack cocaine from
Hatchett (through Riley) one month before the
transaction with which he was charged in this
case. As we have noted, the court deemed this
testimony admissible pursuant to Rule 404(b),
which grants the district court discretion to
admit evidence of a defendant’s "other crimes,
wrongs, or acts" in order to establish something
other than the defendant’s propensity to engage
in criminal conduct. See generally United States
v. Wash, 231 F.3d 366, 370 (7th Cir. 2000); United
States v. Swan, 224 F.3d 632, 637 (7th Cir. 2000),
amended in other respects, 230 F.3d 1040 (7th Cir.
2000). Of the four criteria that govern the
admission of Rule 404(b) evidence (see, e.g.,
Wash, 231 F.3d at 370; United States v. Williams,
216 F.3d 611, 614 (7th Cir. 2000)), Hatchett
contends that Robert’s testimony failed two: (1)
the testimony did not serve to establish any
factor that was genuinely in dispute, apart from
Hatchett’s propensity to engage in narcotics
trafficking, and (2) Robert’s testimony was not
sufficiently reliable to establish that Hatchett
had previously distributed cocaine.
We are satisfied that testimony concerning the
October transaction was admissible to establish
Hatchett’s knowledge, if nothing else. In
discussing Hatchett’s double jeopardy claim, we
pointed out that in order to prove Hatchett
guilty of distributing cocaine to Riley, the
government was obliged to prove that Hatchett
knowingly and intentionally distributed the
narcotic to Riley and that he knew cocaine was a
controlled substance. Similarly, in order to
prove that Hatchett aided and abetted Riley, the
government was required to show, inter alia, that
Hatchett knowingly associated himself with
Riley’s delivery of the cocaine to Panzer and
Hess. Ante at 8-9. Hatchett’s awareness of the
illicit nature of the business that Riley was
transacting with Panzer and Hess on November 24
was thus a key element of the prosecution’s case.
Although Hatchett insists that his knowledge was
actually not in issue, because he simply argued
that he did not supply Riley with the cocaine
(Blue Br. at 27), the record belies his
contention. In fact, Hatchett specifically denied
having any knowledge that Riley was distributing
cocaine to Panzer and Hess. R. 70 at 11-12, 14.
Under these circumstances, we believe that
testimony concerning the October transaction--
which involved both Riley and Panzer’s brother--
was admissible to prove that Hatchett was not
merely an unwitting bystander to the distribution
of crack cocaine, but a knowing participant. See
United States v. Mounts, 35 F.3d 1208, 1214 (7th
Cir. 1994), cert. denied, 514 U.S. 1020, 115 S.
Ct. 1366 (1995); United States v. Kreiser, 15
F.3d 635, 640-41 (7th Cir. 1994).
We are also satisfied that Panzer’s testimony
concerning the October transaction was
sufficiently reliable to qualify for admission
under Rule 404(b). See Huddleston v. United
States, 485 U.S. 681, 689-90, 108 S. Ct. 1496,
1501-02 (1988); see also, e.g., United States v.
Wimberly, 60 F.3d 281, 285 (7th Cir. 1995), cert.
denied, 516 U.S. 1063, 116 S. Ct. 744 (1996);
United States v. Williams, 31 F.3d 522, 527 (7th
Cir. 1994). Robert Panzer was a participant in
the previous transaction, obviously, and as such
had first-hand knowledge of its details. See
United States v. Allison, 120 F.3d 71, 75 (7th
Cir.), cert. denied, 522 U.S. 987, 118 S. Ct. 455(1997), citing United States v. Long, 86 F.3d 81,
85 (7th Cir. 1996). Robert’s character and motives
were by no means pure, as Hatchett is quick to
point out. But the fact that Robert himself was
a felon, and obviously stood to gain by
cooperating with the government, is by no means
remarkable. See, e.g., United States v. McEntire,
153 F.3d 424, 436 (7th Cir. 1998); United States
v. Curry, 79 F.3d 1489, 1496 (7th Cir. 1996).
Consequently, we find no abuse of discretion in
the district court’s decision to admit Robert
Panzer’s testimony. The testimony was probative
of Hatchett’s knowledge as to the nature of the
November 24 transaction. Moreover, the district
court appropriately instructed the jury as to the
limited purposes for which it might consider this
evidence. That cautionary instruction adequately
addressed the concern that the jury might
improperly infer from the testimony a propensity
on Hatchett’s part to engage in narcotics
transactions. See Williams, 216 F.3d at 615;
United States v. Rivera, 6 F.3d 431, 444 (7th Cir.
1993), cert. denied, 510 U.S. 1130, 114 S. Ct.
1098 (1994).
C.
At the close of the defense case, Hatchett
offered into evidence a laboratory report
prepared by the Wisconsin Crime Laboratory which
indicated that a fingerprint located on a metal
cigar box in which Hatchett had delivered the
crack cocaine to Riley could not be identified as
belonging to either Hatchett or Riley. Hatchett
contended principally that the report was
admissible as a public record pursuant to Fed. R.
Evid. 803(8)./6 Absent a stipulation between the
parties as to the authenticity of the lab report,
the district court declined to admit the report
into evidence without appropriate testimony from
a foundation witness. R. 80 at 270-71. Although
the defense had already rested, the court
indicated that it was prepared to allow Hatchett
to re-open his case in order to supply that
testimony. "If that’s what you want to do," Judge
Shabaz remarked, "I’ll give you that
opportunity." Id. at 271. Hatchett’s counsel
declined the court’s offer, however:
In all candor, Your Honor, I did not subpoena Mr.
Heslip [the laboratory analyst] nor will I ask
the Court to reopen evidence. This was my attempt
to offer this document in this format and that
was my choice, so I will live with the Court’s
ruling.
Id.
Hatchett contends that the laboratory report was
admissible pursuant to Rule 803(8)(C), which
provides that official investigative findings are
admissible "against the Government in criminal
cases," unless there is reason to doubt their
reliability. See n.6, supra. In passing, the
district judge expressed doubt whether subsection
(C) applied, because "this isn’t a matter against
the government." R. 80 at 271. In this respect
the judge misread the rule, which requires only
that the report be offered against the
government, not that the proceeding be one
against the government, e.g., United States v.
King, 613 F.2d 670, 673 n.4 (7th Cir. 1980), and
Hatchett seizes on this one remark as the basis
for his appeal on this issue.
At most, however, the district court’s
construction of Rule 803(8)(C) amounted to an
alternative ground for excluding the report. The
principal reason why the court did not admit the
report, and the one it cited both first and last
in its ruling, was the lack of a witness who
could identify and authenticate the report. See
R. 80 at 270-71. Read in their entirety, the
district court’s remarks leave no doubt that,
irrespective of its understanding as to the scope
of Rule 803(8)(C), the court would not have
allowed the lab report into evidence without
foundation testimony from an appropriate witness.
See United States v. Romo, 914 F.2d 889, 896 (7th
Cir. 1990), cert. denied, 498 U.S. 1122, 111 S.
Ct. 1078 (1991).
Hatchett has not addressed the district court’s
observations with respect to the need for a
foundation witness./7 "[I]n situations in which
there is one or more alternative holdings on an
issue, we have stated that failure to address one
of the holdings results in a waiver of any claim
of error with respect to the court’s decision on
that issue." Kauthar Sdn Bhd v. Sternberg, 149
F.3d 659, 668 (7th Cir. 1998), cert. denied, 525
U.S. 1114, 119 S. Ct. 890 (1999). That is the
case here. Having failed to address an integral
aspect of the court’s rationale, Hatchett cannot
show that the district court abused its
discretion in excluding the report.
III.
We AFFIRM Hatchett’s conviction and sentence.
/1 Hatchett’s two convictions were grouped together
for sentencing purposes, see U.S.S.G. sec.
3D1.2(d), and the district court imposed a single
term of incarceration. Effectively, then,
Hatchett was sentenced to concurrent prison terms
of 90 months on both counts of conviction. See
id. sec. 5G1.2(b), (c). Of course, as we have
noted, he was also required to pay a separate
special assessment for each count. See Robinson
v. United States, 196 F.3d 748, 754 (7th Cir.
1999), vacated & remanded on other grounds, 121
S. Ct. 851 (2001).
/2 Only Justice Blackmun believed that Grady would
permit the subsequent charges. See id. at 741-43,
113 S. Ct. at 2878-81 (Blackmun, J., concurring
in the judgment in part and dissenting in part).
Justice White found it unnecessary to consider
whether or not Grady would have permitted the
later charges. See id. at 720-21, 113 S. Ct. at
2869, 2879 (White, J., concurring in the judgment
in part and dissenting in part).
/3 It was not obvious to Justice Scalia that the
word "assault" in the civil protection order
necessarily forbade only those assaults that were
barred by the local criminal code. However, the
trial court had construed the term in that way,
and the parties had not contested that
construction. Id. at 700 n.3, 113 S. Ct. at 2858
n.3.
/4 The remaining justices, Justices Blackmun and
Souter, did not focus on the lesser-included
offense analysis. See id. at 741-43, 113 S. Ct.
at 2879-81 (Blackmun, J., concurring in the
judgment in part and dissenting in part)
(asserting that contempt of court serves to
vindicate the authority of a court’s orders
rather than to punish the contemnor for whatever
criminal acts he may have committed;
consequently, Harris’ lesser-included-offense
analysis is inapt); id. at 743-63, 113 S. Ct. at
2881-91 (Souter, J., concurring in the judgment
in part and dissenting in part) (disagreeing with
majority’s decision to overrule Grady, and
concluding that the subsequent charges against
Dixon and Foster were barred under that
jettisoned precedent).
/5 Of course, this case involves a single
proceeding, rather than successive prosecutions,
but we apply the same standards in deciding
whether the defendant impermissibly has been
punished twice for the same offense. See, e.g.,
Dixon, 509 U.S. at 696, 113 S. Ct. at 2856.
/6 The rule provides:
Public records and reports. Records, reports,
statements, or data compilations, in any form, of
public offices or agencies, setting forth (A) the
activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law
as to which matters there was a duty to report,
excluding, however, in criminal cases matters
observed by police officers and other law
enforcement personnel, or (C) in civil actions
and proceedings and against the Government in
criminal cases, factual findings resulting from
an investigation made pursuant to authority
granted by law, unless the source of information
or other circumstances indicate lack of
trustworthiness.
Fed. R. Evid. 803(8).
/7 For example, although "the public records
exception often requires no foundation witness at
all," 4 Christopher B. Mueller and Laird C.
Kirkpatrick, Federal Evidence sec.453, at 548 (2d ed.
1994), Hatchett has made no argument that the
laboratory report at issue here constitutes the
type of self-authenticating document that is
admissible without any additional foundation. See
Fed. R. Evid. 902.