United States v. Walker, Raymond M.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 29, 2006
Decided November 30, 2006
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4500
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Evansville
v. Division.
RAYMOND M. WALKER III, No. 04 CR 36
Defendant-Appellant.
Richard L. Young, Judge.
ORDER
An indictment charged Raymond Walker (and a codefendant, John Jordan) in
count 1 with conspiracy to possess cocaine with intent to distribute. The conspiracy
ran, according to the indictment, from an unknown date “but at least as early as
September, 2004" until December 6, 2004. The overt act portion of the indictment
went on to allege that from “approximately June, 2004, up to December 2004,
Walker distributed . . . cocaine . . . in the Evansville, Indiana, area.” The
indictment also included three substantive counts of cocaine distribution (counts 4,
5, and 6), all allegedly committed on December 6, 2004. One of the counts (number
6) was dismissed. A jury found Walker guilty on counts 1, 4, and 5. Because
Walker had at least three prior felony convictions (three were listed in an
information filed before trial) relating to cocaine, he received a mandatory life term
No. 05-4500 2
on count 1. Concurrent terms of 360 months were imposed on counts 4 and 5.
Walker appeals his convictions and the sentence he received.
Walker’s indictment grew out of an investigation into drug dealing during the
summer and fall of 2004 by police officers in the southwest Indiana area. As part of
that effort, during the summer of 2004, undercover Indiana state police trooper
Robert Hornbrook contacted several individuals in Dale, Indiana, in order to set up
controlled cocaine purchases. Hornbrook subsequently purchased cocaine several
times from both Doug Lyons and John Jordan. On September 7, 2004, Hornbrook
telephoned Jordan and arranged to purchase 7 grams of crack cocaine. The two met
in Dale and traveled to Evansville to get the cocaine from Jordan’s source, Rose
McCray. McCray arrived at the meeting place with Walker. Hornbrook, through
Jordan, purchased the cocaine from McCray. Several other direct cocaine
transactions with McCray followed. After the completion of a December 6, 2004,
transaction with McCray, she was arrested. She quickly accepted an invitation to
cooperate.
McCray, a 20-year-old single mother, explained to officers after her arrest
that she was selling cocaine for Walker. McCray, now acting as an informant,
telephoned Walker to set up a cocaine delivery. Once the meeting was arranged,
McCray and the law enforcement officers (including Hornbrook) traveled to
Walker’s home. Before McCray met with Walker, she and her car were searched.
McCray was also fitted with a hidden transmitter so the officers could listen in as
the transaction went down. McCray was given $275 in marked money to pay for
the cocaine. Before giving her the money, Hornbrook photocopied the bills and
noted their serial numbers.
Hidden transmitter and marked bills in place, McCray met with Walker at
his residence and gave him the $275. She received 7 grams of crack cocaine. After
the transaction was complete, officers met with McCray and took the 7 grams of
cocaine from her. Subsequently, other officers arrested Walker as he attempted to
drive away from his residence. He was carrying $2,540 in cash in his pocket.
Trooper Hornbrook examined the money and determined that some of it ($250) had
the same serial numbers as the currency given to McCray. Hornbrook returned the
money to the Indiana state police so it could be used in other investigations.
Walker’s activities also linked him to another undercover Indiana drug
investigation. Beginning in January of 2004, a separate set of federal and local law
enforcement officers investigated a group of people suspected of distributing large
amounts of cocaine in the Evansville area. Emmanuel Cabell was caught in that
investigation’s net. Law enforcement officers conducted court-approved electronic
No. 05-4500 3
surveillance of Cabell’s cell phone from April to June of 2004, recording Cabell's
calls with various associates about drug distribution activities.
A day after Walker’s arrest, while searching his residence, police found a dry
cleaning receipt that referred to Walker and contained an Evansville area cell
phone number. Phone records indicated that calls from this number were placed to
Cabell’s cell phone. Several of the calls were recorded during the separate April to
June 2004 wiretap investigation. And Walker and Cabell were found, on nine
intercepted calls between May 6, 2004, and June 1, 2004, to be discussing cocaine
distribution activities.
Walker’s first claim on appeal is that the district court erred when it denied
his motion to dismiss count 1 of the indictment. He argues that the language of
count 1--particularly the “at least as early as September, 2004” reference--failed to
adequately apprise him of the essential elements of the charge and thus he was
denied a fair opportunity to prepare a defense. On a related point, he says the
inclusion of the wiretap evidence--from the Cabell investigation-- amounted to a
constructive amendment of the indictment. Both arguments are borderline
frivolous.
Of course, an indictment must adequately apprise a defendant of the charge
against him so he can prepare his defense. Walker’s indictment (on this point he
only challenges count 1) clearly did just that. It identified “the Southern District of
Indiana, Evansville Division, and elsewhere” as the location of the conspiracy. It
identified Walker and Jordan as participants in the conspiracy with “diverse other
persons, known and unknown to the Grand Jury.” The charge recited the purpose
of the conspiracy and provided the relevant statutory citations. Accordingly, count
1 adequately informed Walker of the elements of the conspiracy charge against him.
Walker’s main point, in essence, is that the indictment was constructively
amended by the evidence submitted at trial. Under a constructive amendment
theory, an indictment may not identify one crime and the prosecution prove a
different crime at trial. Walker’s constructive amendment claim relates to the
timing allegations in count 1.
Unless a particular date is an element of the offense, it is generally sufficient
to prove that an offense was committed on any day before the indictment and
within the statute of limitations. United States v. Spaeni, 60 F.3d 313, 315 (7th
Cir. 1995); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988). In a drug
conspiracy case, of particular importance here, the precise time frame of the
conspiracy need not be noted with precision. A certain amount of leeway-- usually
utilizing terms like “on or about” is permissible.
No. 05-4500 4
Overwhelming evidence of Walker’s participation as a mid-level cocaine
distributor in the conspiracy was presented to the jury. Testimony from McCray
established that in the spring of 2004 Walker recruited her into the conspiracy and
became her source for the drug, which she distributed to others until her arrest in
December 2004. Recordings of wiretap telephone conversations between Walker
and Cabell during May and June 2004 were admitted in which Walker discussed
procuring cocaine for distribution and various other matters pertaining to the drug
trafficking business.
But Walker contends that the admission of the 2004 wiretap evidence
amounted to a constructive amendment of the indictment. He points to the fact
that the wiretap evidence was never presented to the grand jury. This, of course, is
of no consequence, as the burden of proof at trial frequently requires the
presentation of more evidence than was presented to a grand jury. The fact that
testimony at trial was not presented to the grand jury does not make an otherwise
valid indictment constitutionally infirm. United States v. Johnstone, 856 F.2d 539,
540 (3d Cir. 1988).
Moreover, the telephone evidence did not substitute one criminal offense for
another. Nor did it establish an offense different from or in addition to that charged
by the grand jury. Rather, the telephone conversations between Walker and Cabell
established Walker’s active participation in a cocaine distribution business.
Walker points to the timing of the telephone conversations, arguing that
their presentation constructively amended the dates of the conspiracy. The
recorded conversations, as we noted, occurred between May 6, 2004, and June 1,
2004. Count 1 of the indictment alleges that the conspiracy began “on a date
unknown to the Grand Jury, but at least as early as September, 2004,” and
continued “to and through December 6, 2004.” Also as we have noted, the “Overt
Acts” portion of the indictment provides that “From approximately June, 2004, up
to December 2004, WALKER distributed quantities of cocaine base to Individual 1
in the Evansville, Indiana, area.” Inexplicably, Walker ignores the time frame set
out in the “Overt Acts.” That’s not wise. When read in its entirety, the charged
conspiracy fully contemplates criminal activity by members of the conspiracy during
the time frame of the recorded telephone conversations with Cabell. That’s what
“at least as early as September, 2004" means. The telephone evidence fits
comfortably within the time frame of the indicted conspiracy. It did not constitute a
constructive amendment of the charge.
Moreover, a minor difference involving starting dates for a conspiracy has no
bearing on the sufficiency of the indictment. Charging that an act occurred on one
date and proving that it occurred at a different time is a “classic variance” between
No. 05-4500 5
indictment and trial evidence, which does not change the nature of the crime
alleged. United States v. Krilich, 159 F.3d 1020, 1027 (7th Cir. 1998). Walker’s
attempt to split split hairs over the precise day his involvement in the conspiracy
got underway does not carry the day.
Finally, the telephone conversation evidence was independently admissible
as “other acts” under Federal Rule of Evidence 404(b). As such, the jury could have
heard it even if it occurred before the charged conspiracy actually started.
Next, Walker argues that the district court erred when it allowed, over his
objection, officer Hornbrook to testify that Walker was carrying $250 of the $275 in
marked money from the December 6 transaction with Ms. McCray when he was
arrested. Somehow, Walker claims, Hornbrook’s testimony that the seized bills had
the same serial numbers as the bills given to McCray violated the “best evidence”
rule. Nonsense. Why would the government be required to present the actual bills
before the jury could consider Hornbrook’s testimony? Walker offers no satisfactory
answer. The best evidence rule is concerned with the content of a writing. That
was not the case here. If the government wanted to prove that McCray gave
something to Walker, and that “something” was “The Brothers Karamazov”
autographed by Fyodor Mikhailovich Dostoyevsky, could the officer who gave it to
McCray not say it was later found with Walker after he and McCray were together?
Of course he could. And the book itself would not have to be offered as evidence.
Finally, as the district court properly noted, Walker was free to challenge
Hornbrook about the quality of his recollection on cross-examination--how he was
able to recall the numbers, how carefully he compared them to the earlier list he
made, and so on. It was not an abuse of discretion for the district court to find that
Hornbrook’s testimony about the serial numbers on the bills was admissible.
Walker’s other challenges to his conviction are easily resolved. His taped
telephone conversations with Cabell were admissible on any one of a number of
bases--“adoptive statements” under Rule 801(d)(2)(B); “other acts” under 404(b);
and admissions under 801(d)(2)(A). The district judge did not abuse his discretion
in admitting this evidence. In addition, the district judge gave a cautionary
instruction regarding the telephone evidence:
You are instructed that the recorded conversations which
allegedly occurred between defendant and Emanuel
Cabell from May 6, 2004 to June 1, 2004 are not to be
considered by you as evidence of the truth of Mr. Cabell’s
statements. Rather, Mr. Cabell’s statements are only to
be considered by you as providing context of the
No. 05-4500 6
defendant’s statements or admissions. The statements or
admissions made by the defendant may be considered as
evidence of his verbal acts or as evidence of his state of
mind.
Nor did the district judge commit prejudicial error in declining to explicitly
tell the jury, as Walker requested, that he was “not charged with being in a
conspiracy with Emmanuel Cabell.” While giving this instruction would have been
proper, not giving it was not error. The jury was told what the indictment said and
Cabell was not mentioned. And Walker was free to argue, and did in fact argue,
that he was not charged with being in a conspiracy with Cabell.
Finally, Walker’s argument that the district court, but not the jury,
considered his prior convictions is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998). See also United States v. Cannon, 429 F.3d 1158,
1160-61 (7th Cir. 2005); United States v. Tek Ngo, 406 F.3d 839, 843-44 (7th Cir.
2005).
For these reasons, we AFFIRM the judgment of the district court.