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United States v. Clark

July 23, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TIMOTHY CLARK AND GERARDO VALTIERRA, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Western District of Wisconsin. No. 06 CR 126-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED MAY 16, 2008

Before BAUER, POSNER and WOOD, Circuit Judges.

During 2005 and early 2006, Defendants-Appellants Gerardo Valtierra and Timothy Clark were members of a cocaine distribution network that sold crack and powder cocaine in Illinois and Wisconsin. On June 12, 2006, Clark, Valtierra, and three other individuals were indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Clark was also charged with possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).*fn1 A jury returned guilty verdicts on all counts.

On appeal, Valtierra argues that he was deprived of the presumption of innocence when the government argued in closing that his defense was merely the "standard defense" made by defendants in drug cases. Clark asserts that the district court erred in making various evidentiary rulings. For the reasons contained herein, we affirm the district court's rulings.

I. BACKGROUND

Valtierra was the Chicago source of cocaine for the distribution network. He sold cocaine in bulk to Lawrence Green of Chicago, who then sold to Glenn Murphy of Milwaukee and Clark's son, Quincy, of Madison. Clark and his girlfriend, Amy Hill, served as couriers of the drugs and money between Green, Murphy, and Quincy. Clark and Hill also transported drugs from Chicago to Madison on occasion, for one Gregory Bennett.

Clark, Green and Bennett were all from the Englewood neighborhood in Chicago and were members of the Englewood Gangster Disciples. Clark bought drugs from Green back in 1997 and 1998, during which time Clark had encouraged Quincy (then thirteen years old) to start selling drugs.*fn2

Clark was incarcerated from sometime in 1999 until November 2005. Hill met Clark in August 2005 when Clark was still incarcerated in Illinois. Around that same time, Green met Hill and began channeling money through her to Clark in prison.

Shortly after Clark was released from prison, Green visited him in Madison, Wisconsin, and Clark started transporting cocaine for him. Green also convinced Clark to let Hill transport the drugs to Wisconsin. Clark and Hill transported kilograms of cocaine from Green in Chicago to Murphy in Milwaukee. They also delivered crack cocaine from Green to Quincy in Madison, as well as an occasional transport for Bennett. Clark and Hill brought the drug proceeds back to Green.

On January 8, 2006, Clark was arrested for an Illinois parole violation, but even after his arrest and re-incarceration, Hill continued to transport the drugs and proceeds between Chicago, Milwaukee, and Madison; she also began to occasionally pick up cocaine from, and deliver money to Green's source, Valtierra.

On January 27, 2006, Quincy was arrested at a Burger King restaurant in Madison, when he met with an under-cover detective and sold him the crack cocaine. Quincy agreed to cooperate with the government; he called Hill and ordered a delivery of crack cocaine. Hill obtained 180 grams of crack cocaine from Green, who had received the drugs from Valtierra. That same day, Hill met with Bennett and Kelly in Chicago, where she received eighty grams of crack cocaine, four hundred ecstacy pills, and 872 grams of marijuana for transport to Madison.*fn3 Hill drove to Madison that day with all of the drugs and went to an Arby's restaurant, where she was supposed to meet Quincy. Instead, she was greeted by law enforcement; the drugs were found in her van and she agreed to cooperate with the police.

On January 31, 2006, Hill wore a recording device and met with Green in Chicago. The agents provided Hill with $5,000 in Drug Enforcement Agency (DEA) funds to pay Green for the 180 grams of crack cocaine she was supposed to deliver to Quincy. Hill called Green and he picked her up at the Greyhound Bus station in Chicago. After Hill gave Green the money, he told her to drive his black Hummer to his cousin's house in Englewood. Hill did so; the agents did not follow her into Englewood because of pervasive counter-surveillance in the neighborhood.

At Green's cousin's house, Hill was met by Bennett and Kelly, for whom she had transported drugs the previous week. Since the drugs were seized when Hill was arrested and because the agents had not anticipated Hill meeting Bennett and Kelly, Hill did not have money to pay for the drugs. Green's cousin drove off in the black Hummer, leaving Hill at the house with Bennett and Kelly. Angry about the missing drugs, Bennett and Kelly attacked Hill and discovered (and apparently destroyed) the recording device. Several hours later, they released Hill and she was found by law enforcement, who then took her to the emergency room at Holy Cross Hospital.

Meanwhile, Clark was trying to reach Hill from prison. Clark's phone calls were recorded. When Clark could not reach Hill, he called Green, who told him that Hill was "up here with the feds." Clark expressed disbelief, and Green told him that someone had "picked a wire off her" and that she was "workin' for 'em." Clark then tried to call his son, Quincy, but could not reach him. Clark eventually called Hill at the hospital. The conversation revealed that Clark had pieced together (mainly through conversations with his brother, Don) that Quincy was arrested and was cooperating against Hill, and that Bennett ...


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