Appeal from the United States District Court for the Central District of Illinois. No. 99-CR-30043--Richard Mills, Judge.
Before Cudahy, Easterbrook, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge.
Robert Scott, along with assorted others, was indicted for conspiracy to possess marijuana and cocaine with intent to distribute. At Scott's first trial, in 1999, the jury failed to reach a verdict, and the judge declared a mistrial. A second trial did not have a happy ending for Mr. Scott--he was convicted. That trial lasted 2 weeks and saw a cavalcade of witnesses, testimony, and physical evidence. As much as we'd like to inscribe pages and pages of the Federal Reports with details of the drug transactions presented to the jury, we're not going to. We'll shoot for six paragraphs, stating the evidence in the light most favorable to the government.
From late 1991 to the fall of 1993, Billy Scott (Robert Scott's brother), Billy's girlfriend, Molly Rahar, and (for a couple of months) Tim Burnett drove from Taylorville, Illinois, to Chicago to purchase marijuana and cocaine from Charles Kelsay. From mid-1993 until July 2, 1994, Shawn Jones and Burnett drove from Taylorville to Chicago to purchase marijuana and cocaine from Kelsay. Although Robert Scott did not go on these road trips, the government suspected he was one of their masterminds.
With regard to the first portion of the conspiracy, Rahar testified that prior to going to Chicago to purchase drugs from Kelsay, Billy Scott and she would meet with Scott, who would give his brother thousands of dollars and discuss what drugs to get.*fn1 After returning to the Taylorville area from Chicago they would drop off the drugs at a lake lot rented by Scott. Burnett, whom Billy Scott eventually hired as his driver, testified that if they brought the drugs to either his own house or Billy Scott's, Scott would come by, pick up his marijuana and cocaine, and leave, taking "[j]ust about all of it." Unfortunately for Scott, as both Rahar and Burnett testified, Billy Scott was a heavy drug user and became an unreliable courier.
Enter Shawn Jones. Jones, a neighbor and friend of Scott's, testified that he had been going to Chicago with various people to obtain drugs from Kelsay. Starting in late 1992 Jones pooled his money with Ron Cooper, who previously had been obtaining drugs from both Jones and Billy Scott. Jones would travel to Chicago, sometimes sharing a motel room with Billy Scott, Rahar, and Burnett. In mid-1993 Jones hired Burnett as his driver.
After his falling out with his little brother, Scott turned to Jones. Jones refused to testify at trial so the government introduced grand jury testimony that Jones had given against Scott in December of 1995--more on that in a moment. Jones confirmed that Scott was Billy Scott's "money man" during Billy Scott's trips to Chicago and that, after the Scott family feud, Jones agreed to get drugs for Scott from Kelsay. Scott gave him between $5,000 and $10,000 for these purchases; Jones offered the precise amounts that Scott gave him on the last few trips prior to Jones' arrest. Burnett witnessed money exchanges between Jones and Scott. Jones said that Scott sometimes paid for the hotel room in Chicago, and phone records, corresponding in time to stays in Chicago motels, showed calls to the Scott residence and Scott's tavern. Burnett and Karen Jones (Shawn Jones' wife) remembered Shawn calling Scott to let him know if there were problems or if they were running late. In Chicago, Kelsay often fronted marijuana and cocaine to Jones and Burnett. There was testimony that Scott would pick up marijuana and cocaine after Jones and Burnett returned from Chicago; some of the drugs went to Cooper. The Jones-Burnett trips to Chicago ended on July 2, 1994, shortly before Scott's Fourth of July lake lot party, when Burnett and Jones were arrested on their way back from Chicago and found with large amounts of marijuana and cocaine.
The investigation into the drug conspiracy did not immediately lead to Robert Scott, who was not indicted until June of 1999. Scott was detained at Sangamon County jail before being released. He violated the terms of his release, however, and returned to Sangamon in September 1999. During this second visit, Scott made friends with Billy Chance (remember that name), who was awaiting sentencing after pleading guilty to armed bank robbery.*fn2 Chance testified that Scott told him that Billy Scott and Rahar had been going to Chicago three or four times a month and buying drugs for him from Kelsay. Scott said that he had Jones take over the drug runs after Billy started ripping him off. He would give Jones $10,000-$15,000 for the drugs, which Jones would deliver to him. Scott also showed Chance a list of phone calls the government was going to use against him. He told Chance the calls were "about the drug transactions that Jones had made."
Lest anyone wonder how Scott could have stored all the drugs he was obtaining, the government also presented evidence on his distribution practices. According to Rahar, during the first part of the conspiracy Scott was fronting drugs to his brother to sell. Angela Sparling testified that she twice purchased cocaine from Scott. Steve Harness testified to purchasing (or being fronted) large amounts of marijuana from Scott from spring to fall of 1993. With regard to the second part of the conspiracy, Jones testified that he saw Bob Oller give money to Scott for drugs a few times. Scott also had Jones pick up an ounce of cocaine that went to Oller. Jones also said that he stopped at Alan Williams' car dealership in Decatur, Illinois, a couple of times to pick up money that Williams owed to Scott for drugs. Louis Ferratier, who rented a lake lot near Scott's, testified to buying cocaine from Scott four times in June of 1994. Last, Chance testified that Scott told him that he had sold drugs at his lake lot and during pool tournaments.
On appeal, Scott raises five points, four of which will not make it out of this paragraph. First, he argues there was insufficient evidence to convict him, a contention answered by the difficulty of winning a sufficiency challenge and the evidence (which we have briefly summarized) presented at trial. Although the evidence was hotly contested--there was direct contrary testimony and no shortage of prior convictions, cooperation agreements, and drug use with which to impugn the credibility of government witnesses--we defer to the jury's credibility determinations. Second, Scott argues that the district court erred by failing to give buyer-seller and multiple-conspiracy instructions. Scott did not request such instructions and there was no plain error in not giving them. Third, Scott argues, citing the oft-cited decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the district judge erred by failing to instruct the jury that it needed to find both the types and amounts of drugs involved in the conspiracy. Again, Scott did not request such an instruction and, even though the government concedes error, we agree, given the evidence in the record, that the error was harmless. Fourth, Scott claims he received ineffective assistance of counsel. Because Scott has new counsel on appeal and insists on going ahead, we will consider his ineffective assistance claim, even though, in the absence of an evidentiary hearing, his claim is all but doomed. United States v. Godwin, 202 F.3d 969, 973 (7th Cir. 2000). As we see it, nothing in the record rebuts the presumption that counsel's performance was reasonable, so we reject the ineffectiveness claim.
But Scott has thrown one dart that is at least heading for the board. He challenges the admission of Shawn Jones' December 1995 grand jury testimony. Jones provided the testimony after he was convicted but before he was sentenced on charges stemming from his 1994 arrest. After giving the testimony, Jones refused to testify during a second appearance before the grand jury. He also refused to testify at both of Scott's trials. The district judge found him "unavailable" after his refusal to testify at the second trial. Upon the government's motion, the judge admitted the grand jury testimony after holding an evidentiary hearing.
There can be little doubt that Jones' testimony was important. Jones not only confirmed that Scott was Billy Scott's "money man" but also testified that Jones accepted large amounts of money from Scott for the purpose of buying drugs from Kelsay. Morever, he testified that Scott sometimes paid for his hotel room in Chicago and that he not only delivered the drugs to Scott but also delivered drugs to and picked up money from Scott's customers. This was powerful testimony in a conspiracy case. We also note that Scott's first jury did not hear Jones' testimony.
There are two independent hurdles to admitting out-of-court statements in federal courts: the Sixth Amendment's Confrontation Clause and the Federal Rules of Evidence. It is, of course, well-established that a defendant forfeits his Confrontation Clause rights by wrongfully procuring the unavailability of a witness. United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999). The doctrine was codified with regard to hearsay in 1997 with the adoption of Federal Rule of Evidence 804(b)(6). United States v. Ochoa, 229 F.3d 631, 639 (7th Cir. 2000). We need not worry about any potential differences between the substantive forfeiture standards or standards of review under these two provisions because Scott has not raised a Confrontation Clause issue. He styles his challenge under Rule 804(b)(6). Accordingly, we will review the district court's determination under Rule 804(b)(6) for clear error. Cf. United States v. ...