Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 30040-Jeanne E. Scott, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before FLAUM, RIPPLE and ROVNER, Circuit Judges.
On May 5, 2006, Robert Hearn was charged with one count of possession with intent to distribute five grams or more of cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A jury found him guilty, and he was sentenced as a career offender to 360 months' imprisonment. For the reasons set forth in this opinion, we affirm his conviction but remand for resentencing in light of Kimbrough v. United States, 128 S.Ct. 558 (2007).
On the night of March 24, 2006, two City of Springfield, Illinois police officers, Jason Sloman and Kevin Scarlette, observed two men walking from a back alley. Officer Sloman recognized one of the men as Michael Collins, a suspect in a forgery case. He called after Collins, who walked away quickly and attempted to enter a residence. The officers pursued Collins and apprehended him at the back door of the residence.
The man with Collins was the defendant, Robert Hearn. As Collins was attempting to flee, Mr. Hearn stood in the driveway of the residence with his hands in his pockets. Officer Sloman detained Collins, and Officer Scarlette asked Mr. Hearn to take his hands out of his pockets. As he did so, Officer Scarlette saw Mr. Hearn toss an object onto the pavement. He therefore detained Mr. Hearn until a third officer, Jonathan Wingerter, arrived and retrieved the object. It was a plastic bag that contained what appeared to be a large chunk of crack cocaine and some separately packaged powder. When Officer Wingerter seized the bag, Mr. Hearn exclaimed: "That ain't my dope. You can't pin it on me." Tr. at 199, 402.
The officers arrested both Collins and Mr. Hearn and took them separately to the police station for booking. No contraband was found on Mr. Hearn; however, Collins was caught attempting to dispose of a crack pipe in a garbage can. The bag found on the pavement was submitted for forensics testing. A chemist at the police forensic laboratory analyzed its contents and determined that it contained 11 grams of crack cocaine and 15.4 grams of powder cocaine.
On May 5, 2006, a federal grand jury charged Mr. Hearn with one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
On May 17, 2006, Mr. Hearn met with his attorney to discuss his options. The attorney informed him that, as a career offender, he would face a possible sentence of 360 months to life imprisonment if convicted at trial, 262-327 months if he pleaded guilty, and less than that if he cooperated with law enforcement authorities. Mr. Hearn decided to cooperate.
During a proffer session on May 25, 2006, Mr. Hearn told law enforcement officers that he had been dealing powder cocaine and crack cocaine regularly since 1997, and he identified two of his suppliers. Hoping that he would be released to participate in controlled buys with these informants, he gave the agents substantial information regarding his pattern of interaction with these two major dealers. The agents did not ask Mr. Hearn if he had possessed the particular drugs for which he was arrested, however, allegedly because they had presumed that he was going to plead guilty.
When his cooperation did not result in his release, Mr. Hearn attempted to procure his release another way. On June 7, 2006, he made four telephone calls from jail to enlist the help of his girlfriend and a friend, "Little G." Mr. Hearn suggested that Little G "take this thing for me," R.29, Ex. 13-T at 5, by going to a particular attorney's office and signing a statement that the drugs found near Mr. Hearn actually belonged to Little G. Mr. Hearn told his girlfriend that Little G, unlike Mr. Hearn, would receive only probation because he had no prior criminal record. This plan ultimately was abandoned, however, when the attorney informed Little G that he would be subject to five to ten years' imprisonment if he signed the statement.
Prior to trial, Mr. Hearn filed a motion in limine requesting that the court prohibit the Government from introducing any statements that he had made during his cooperation meeting with law enforcement officers unless, as provided by the terms of the agreement, he took a position at trial contrary to a specific statement made during the proffer session. The court granted his motion. It ruled that the Government could introduce these prior statements only if Mr. Hearn took the stand and provided testimony contrary to what he had told the agents. In that case, he would be subject to impeachment just like any other witness, and the Government would be allowed to use his prior statements regarding both the charged offense and his history of drug dealing in order to accomplish that impeachment.
Mr. Hearn also filed a pre-trial motion in which he requested permission to introduce evidence of his attorney's earlier advice to him regarding the possible sentences that he might face with and without cooperation. This evidence was intended to explain his mental state during his meeting with the Government and to suggest that he had a serious incentive to exaggerate his prior participation in the drug trade in the hopes that he would be released to participate in controlled buys. The district court ruled that this evidence would be admissible to prove Mr. Hearn's state of mind, but the court warned that its introduction would open the door for either side to introduce evidence to explain that the attorney had warned Mr. Hearn that he would receive a lengthy sentence because he could be sentenced as a career offender.
On July 26, 2006, the Government filed a notice of its intention to introduce, under Federal Rule of Evidence 404(b), evidence of Mr. Hearn's prior conviction for distribution of crack cocaine on March 12, 2003. Mr. Hearn objected. The district court ruled that the facts underlying Mr. Hearn's 2003 conviction were probative of his knowledge, lack of mistake and intent to distribute the cocaine in this instance. It also noted that the potential for prejudice was minimal compared to the probative value of the evidence-especially considering that Mr. Hearn himself planned to introduce evidence of his attorney's warning that he was a career offender. ...