Appeal from the United States District Court
for the Southern District of Illinois. No. 96 CR 40036 J. Phil Gilbert, Chief Judge.
Before CUMMINGS, FLAUM and KANNE, Circuit Judges.
Argued September 18, 1997
Decided November 14, 1997
On July 11, 1996, defendant David Earnest was convicted by a jury of conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. sec.sec.841(a)(1) and 846 and possession with intent to distribute cocaine base in violation of 21 U.S.C. sec.841(a)(1). On January 23, 1997, defendant was sentenced by the Honorable J. Phil Gilbert to 420 months imprisonment. Defendant appeals, claiming (1) that the district court erred when it held that the prosecution did not violate its disclosure obligations under Brady v. Maryland, 373 U.S. 83, (2) that the evidence was insufficient to support the jury's verdict, (3) that his due process rights were denied at sentencing, and (4) that the government failed to prove the cocaine base involved was "crack." Finding defendant's first three contentions without merit, we affirm. In light of this Court's recent decision in United States v. Adams, 125 F.3d 586 (7th Cir. 1997), we remand on the issue of whether the cocaine base involved was crack.
On May 1, 1996, agents from the Murphysboro, Illinois Police Department and the Federal Bureau of Investigation received a tip from Jennifer Unterfer that defendant Earnest and co-defendant Vida Humphries would be going to Chicago, Illinois, on May 1, 1996, to obtain crack cocaine to distribute in the Murphysboro area. Unterfer had been purchasing crack cocaine from the defendant and, in fact, testified that she had received crack cocaine from him on the previous evening. To confirm this information, police had Unterfer record a conversation with the defendant by means of a concealed tape recorder. During the conversation, Unterfer paid defendant $150 in satisfaction of a prior drug debt and defendant told Unterfer that he planned to travel to Chicago with Humphries on May 1, 1996, for the purpose of obtaining one ounce of crack cocaine.
On May 1, agents observed defendant and Humphries leave Murphysboro and proceed toward Chicago in Humphries' car and set up surveillance for their return.
On May 3, officers spotted the car returning and followed it into Carbondale. The car, driven by defendant and occupied by passengers Humphries, co-defendant Earl Cunningham, Jr. and Michael Hooker, was stopped and searched pursuant to a valid search warrant. The agents discovered a substance concealed in the outside mirror on the driver's side of the car. Forensic scientist Ileana Suarez-Hale testified at trial that the substance was 45.4 grams of cocaine base.
Defendant was arrested and interviewed by law enforcement officers. Agents Robert Dueker and Brenn Tallent and Murphysboro Police Department Sergeant Philip Royster testified that defendant admitted that he had been involved with Humphries in the distribution of crack cocaine in Murphysboro. They further testified that defendant told them that he and Humphries, in addition to the recent trip, had made two other trips to Chicago for the purpose of obtaining crack cocaine for distribution in the Murphysboro area; and that according to defendant, he and Humphries could not obtain any crack cocaine on the first trip but obtained at least one and one-fourth ounce of crack cocaine on the second trip. *fn1 According to the agents, the defendant stated that he sold $20 and $50 "rocks" to customers in Murphysboro and confirmed that he had sold crack cocaine to Unterfer and had made arrangements to furnish her with more crack upon his return from his May 1 trip. Additionally, defendant told agents that because he could no longer purchase drugs from a particular drug source, Humphries would have to purchase the drugs in Chicago.
These admissions were corroborated by Humphries who admitted to agents and at trial that he and defendant had been obtaining crack cocaine in Chicago for distribution in Murphysboro. He stated that he and defendant had made three trips to Chicago and gave approximate dates for these trips. On the first trip, they brought back one ounce of crack cocaine, on the second trip, they brought about one-half ounce of crack cocaine, and on this past trip, they brought the cocaine which was discovered in the car's exterior mirror. Humphries stated that defendant was present when Humphries concealed the cocaine in the mirror. Furthermore, co-defendant Cunningham admitted that he was being brought to Murphysboro to aid defendant and Humphries in distributing crack cocaine.
At trial defendant admitted that he made three trips to Chicago with Humphries but denied that he admitted to agents involvement in distributing crack cocaine, denied that it was his voice on the recorded conversation with Unterfer, and denied that he knew there was crack cocaine in the car when it was stopped. In the face of defendant's denials, however, the court found the other witnesses credible and disbelieved the defendant.
At trial defendant also requested that the government produce a traffic ticket that remained in Humphries' car after the car was inventoried and impounded, claiming the government had an obligation to turn it over under Brady v. Maryland, 373 U.S. 83. According to defendant, the traffic ticket would have impeached Humphries' testimony by demonstrating that defendant was not in Chicago on the day Humphries had given as the approximate date of one of the pair's drug-buying trips. The district court ruled that the government's duty to disclose was not triggered because the government was not in possession of the ticket and the defendant did not demonstrate that the ticket was exculpatory or material.
After a three-day trial, a jury convicted defendant of conspiracy to distribute and possess with intent to distribute cocaine base, and of possession with intent to distribute cocaine base.
The presentence investigation report concluded that defendant's relevant conduct involved approximately 80 grams of cocaine based on the amount seized from the vehicle (45.4 grams) and the one and one-fourth ounces that defendant admitted obtaining on a prior Chicago trip (35.4 grams). Overruling defendant's objection, the district court determined that defendant's relevant conduct was at least 50 grams of crack cocaine and more accurately up to 75 grams. The court based its calculation on the testimony of the agents regarding the admissions made by the defendant and the testimony of Humphries that the prior trips were made, noting that such an estimate was conservative. Defendant obtained a writ to secure the presence of Humphries at sentencing to question him about the trips to Chicago, but, due to bad weather, the United States Marshal's Service was unable to produce him. After reviewing a list of questions that defendant intended to ask Humphries and finding them cumulative of Humphries' trial testimony, the district court refused to delay sentencing. The court emphasized that it was not going to retry the case at sentencing, having already determined Humphries to be a credible witness.
The district court sentenced defendant to 420 months imprisonment. Defendant appeals, claiming that (1) the prosecution violated its disclosure obligation under Brady v. Maryland by not turning over the traffic ticket, (2) the evidence was insufficient to support the jury's verdict, (3) he was denied due process at sentencing, and (4) the government failed to prove the cocaine base involved was "crack." Regarding defendant's first three contentions, we affirm the district court's ruling. We remand on the issue of ...