United States v. Hardiman, Willie L.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2007
Decided August 29, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Nos. 06-2951, 06-4087
Appeals from the United States
District Court for the Southern
UNITED STATES OF AMERICA, District of Indiana,
Plaintiff-Appellee, Terre Haute Division.
v. No. 2:05CR00026
WILLIE L. HARDIMAN, III and Larry J. McKinney,
LESLIE T. HARDIMAN, Chief Judge.
Defendants-Appellants.
ORDER
Brothers and co-defendants Willie and Leslie Hardiman challenge their
convictions on the grounds that the district court erred when it denied a motion to
sever their trials, admitted an inadequately redacted inculpatory statement by Lesl-
ie Hardiman, and allowed hearsay testimony into evidence in violation of the
Confrontation Clause. They also challenge the sufficiency of the evidence, and
Willie Hardiman argues that his sentence is unreasonable.
The defendants were indicted for conspiracy to distribute in excess of
50 grams of crack cocaine, and possession with intent to distribute in excess of
50 grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Willie Hardiman moved
Nos. 06-2951, 06-4087 Page 2
for severance of their trials, but the district court denied that motion. The trial
brought out the following facts: On December 16, 2005, federal and state police
jointly investigating cocaine trafficking in the Terre Haute, Indiana area arrested
Joseph Cherry, having previously conducted several controlled cocaine transactions
with him. Cherry agreed to cooperate with the police. Though he did not testify at
trial, police testified that he had paged Leslie Hardiman, whom he identified as his
cocaine provider, and a few moments later received a return call. The caller’s name
appeared on the phone as “Jerry Curl,” which an officer recognized as a street name
for Leslie Hardiman. Cherry then set up a meeting to purchase cocaine. Police
intercepted Leslie on his way to the meeting, while he was driving a car identified
by Cherry. When Leslie pulled over in an alley, Willie Hardiman, who was traveling
in the passenger seat, ran out of the van carrying a brown paper bag. As he ran, an
officer saw him throw the paper bag into a bush. Police caught him and found the
bag in the nearby bush. It contained more than 54 grams of cocaine. Both brothers
were then arrested.
Leslie Hardiman made several phone calls from the police station that were
recorded by police. He said several times during the calls that Cherry “set me up.”
Willie Hardiman called his mother and told her to tell others not to call Leslie’s
cellphone number any more because the police had confiscated the phone.
Examining the phone, police discovered that the last number Leslie had dialed was
to Cherry just before the scheduled drug transaction. Leslie’s pager number
matched the number dialed by Cherry when he contacted his source to set up the
meeting.
The government also read into evidence a redacted statement that Leslie had
given at the police station in which he admitted having sold cocaine to Cherry on
prior occasions and having orchestrated the drug transaction with Cherry that day.
He also admitted that he had arranged for Willie to become the supplier for
Cherry’s future cocaine purchases, but in the redacted statement Willie’s name was
replaced with “someone else” and “another individual”: Leslie stated that he
“intended to have someone else take over the cocaine business and that [he] was
going to get back into the marijuana business. [He] intended to introduce someone
else to Joe “Sonny” Cherry and informed Cherry that he would be dealing with
another individual during any further transactions involving cocaine....”
Leslie Hardiman was found guilty on both the conspiracy and distribution
counts and sentenced to 280 months. Willie was found guilty of conspiracy and
sentenced to 292 months.
Regarding severance, the defendants contend that they wanted to present
mutually antagonistic defenses and the joint trial hindered their ability to do so.
But generally defendants charged together should be tried together because of the
Nos. 06-2951, 06-4087 Page 3
economies of exploring all the facets of a single crime in a single case. United States
v. Goodwin, Nos. 06-3057, 06-3658, 06-3660, 06-4047, 2007 WL 2077689, at *5 (7th
Cir. July 23, 2007); United States v. Carrillo, 435 F.3d 767, 778 (7th Cir. 2006).
Desire to present mutually antagonistic defenses does not require severance. See
Goodwin, 2007 WL 2077689, at *5; Carrillo, 435 F.3d at 778; United States v.
Hoover, 246 F.3d 1054, 1061 (7th Cir. 2001). Finger pointing is a benefit of joint
trials; it helps the jury determine guilt. See Hoover, 246 F.3d at 1061. Severance is
required only if a jury’s acceptance of one of the defendants’ defenses would
preclude the acquittal of the other defendant. See Goodwin, 2007 WL 2077689, at
*5; Carrillo, 435 F.3d at 778. The defendants’ explanation of the antagonistic
defenses they wanted to present is vague, but even if each wanted to argue that the
other was solely responsible for the possession of and intent to distribute the crack
cocaine, accepting the argument of one would not preclude the other’s acquittal. See
Carrillo, 435 F.3d at 778.
Willie Hardiman also argues that the district court erred when it admitted
Leslie’s redacted statement to police because replacing his name with “someone
else” and “another person” was insufficient to conceal his identity. See Richardson
v. Marsh, 481 U.S. 200, 207 (1987); Bruton v. United States, 391 U.S. 123, 126
(1968). Redaction is adequate if as redacted the defendant’s statement no longer
implicates the co-defendant. Gray v. Maryland, 523 U.S. 185, 188, 191, 194, 196
(1998); Marsh, 481 U.S. at 211; United States v. Sutton, 337 F.3d 792, 799 (7th Cir.
2003). It was adequate in this case. According to the redacted statement, Leslie
Hardiman would introduce Cherry to an unidentified, new cocaine dealer at some
unspecified future time. There is nothing to suggest that the new dealer was the
person accompanying Leslie at the time of the transaction intercepted by police or
that the introduction would take place during that transaction.
The defendants also argue that the district court erred in admitting Cherry’s
out-of-court statement to officers that Leslie Hardiman was his cocaine source and
the person he called to set up the drug deal at the officers’ request. They argue that
these statements were hearsay. Because no objection was made on this ground at
trial, we review for plain error. United States v. Cotton, 535 U.S. 625, 631-32 (2002);
United States v. Anderson, 450 F.3d 294, 299 (7th Cir. 2006). The information
contained in Cherry’s statements to the officers was placed before the jury from
other sources, and so the admission of his statements was harmless. Leslie
Hardiman was identifiable as the party Cherry called to set up the drug deal
because the phone number that Cherry called matched the number of the pager
recovered from Leslie after arrest. Leslie even admitted that Cherry had “set [him]
up” during one of his recorded phone calls, and that he received the call from
Cherry and was on his way to sell drugs to Cherry when police arrested him.
Nos. 06-2951, 06-4087 Page 4
The defendants also argue that the evidence was insufficient to support their
conviction. Again the standard is plain error; and the evidence was sufficient to find
both defendants guilty of conspiracy and Leslie Hardiman also guilty of possession
with intent to distribute. Leslie admitted that he intended to sell drugs to Cherry
and that he had sold him drugs in the past. And sure enough, Leslie and Willie
Hardiman arrived at the scene of the anticipated drug deal (where police were
waiting for them), and Willie ran from the truck with a bag of crack cocaine, the
subject matter of the anticipated deal. After arrest, both defendants made calls
warning others that they had been set up and not to call Leslie’s cellular phone
because it was in police custody. From this evidence a jury could rationally conclude
that the two defendants had conspired to distribute crack cocaine and that Leslie
had possessed the crack with the intent to distribute it, especially given that he was
Cherry’s usual supplier of crack cocaine.
Lastly, Willlie Hardiman argues that the imposition of a guidelines-range
sentence for possession of crack cocaine was unnecessarily severe and produced an
unwarranted disparity with other defendants who receive a lesser punishment for
possession of powder cocaine. As Willie recognizes, we have repeatedly held that a
district judge is obligated to apply the 100-to-1 crack-to-powder ratio when
calculating a sentencing guidelines range, and cannot calculate a different
guidelines range because of disagreement with Congress’s policy of punishing the
sale of crack cocaine more severely than the sale of powder cocaine. See United
States v. Jointer, 457 F.3d 682, 686-87 (7th Cir. 2006).
AFFIRMED.