Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 30058-Jeanne E. Scott, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge
Before KANNE, WILLIAMS, and TINDER, Circuit Judges.
Spencer Harris was convicted after a jury trial on five separate criminal counts: one count of distributing crack cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), one count of distributing powder cocaine, id. §§ 841(a)(1), (b)(1)(C), one count of possessing crack cocaine with intent to distribute, id. §§ 841(a)(1), (b)(1)(B), one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(c)(1)(B), and one count of possessing a firearm in furtherance of a drug-trafficking crime, id. § 924(c)(1)(A). The district court sentenced Harris to a total of 460 months' imprisonment. On appeal, Harris claims that the district court made several erroneous evidentiary rulings, which deprived him of a fair trial. We do not believe that the district court abused its discretion in admitting the challenged evidence against Harris, so we affirm his conviction.
Because Harris's crimes involved crack cocaine, after oral argument we ordered the parties to file supplemental memoranda on the propriety of the district court's sentence in light of Kimbrough v. United States, 128 S.Ct. 558 (2007), and United States v. Taylor, 520 F.3d 746 (7th Cir. 2008). After considering the parties' responses, we do not believe that Kimbrough or Taylor invalidates Harris's sentence, so we affirm the sentence as well.
On June 22, 2006, officers of the Springfield, Illinois, Police Department arrested David Haynes for possession of crack cocaine and marijuana that the officers recovered from a baby seat in Haynes's house during a parole check. After his arrest, Haynes agreed to cooperate with the police and to provide information about Spencer Harris, whom Haynes claimed sold him the crack cocaine. Haynes explained to the police that he could set up a drug purchase from Harris at any time, merely by telephoning him.
The Springfield police officers brought Haynes to meet with Drug Enforcement Administration (DEA) agents, who arranged for Haynes to participate in two controlled purchases of drugs from Harris. At the agents' direction, Haynes attempted to contact Harris on Harris's cell phone to schedule a meeting to purchase drugs. The agents outfitted Haynes with audio and video recording equipment, searched him to ensure that he was not carrying contraband, and gave him money to purchase cocaine-preferably crack cocaine-from Harris.
The first controlled purchase occurred on the day of Haynes's arrest. Haynes first tried contacting Harris using a DEA office telephone, to no avail. Haynes then placed a second call to Harris from his personal cell phone, and Harris's girlfriend answered. Haynes arranged to meet Harris at the residence of Harris's girlfriend, located at 1904 Greentree Street, in Springfield, Illinois. There, Harris sold powder cocaine to Haynes and agreed to convert the powder into crack cocaine while Haynes waited; however, Harris could not find baking soda, so Haynes left with the powder cocaine. Haynes then met the DEA agents, who searched Haynes, recovered the powder cocaine from him, and downloaded the audio and video recordings onto a computer.
The second controlled purchase took place one week later at Harris's home, located at 1844 South 14th Street, also in Springfield, Illinois. Haynes again arranged the meeting with Harris by cell phone, and DEA agents met Haynes at a nearby golf course, where they supplied him with recording equipment and a bicycle, searched him for contraband, and provided him with money. Haynes cycled to Harris's house and met Harris in the backyard. Haynes purchased crack cocaine from Harris, and then immediately returned to the golf course, where the DEA agents recovered the crack cocaine and downloaded the new audio and video recordings.
Law enforcement officers conducted surveillance of both controlled purchases, and then obtained search warrants for both residences. The officers executed the warrants on July 6, 2006. At Harris's girlfriend's residence, the officers found a .22 revolver locked in a dresser drawer, 9mm ammunition, powder cocaine, and crack cocaine. At Harris's residence, the officers discovered a loaded 9mm semi-automatic pistol in a bag on the kitchen table, powder cocaine, crack cocaine, digital scales, individual plastic bags, drug-cutting paraphernalia, and $2,000 in cash. The officers arrested Harris. At the time of his arrest, Harris had a key to his own house, a key to his girlfriend's house, and a key to the locked dresser drawer from which the .22 revolver was recovered.
A federal grand jury issued an indictment that charged Harris with five counts: (1) knowingly and intentionally distributing five or more grams of a mixture or substance containing cocaine base, id. §§ 841(a)(1), (b)(1)(B); (2) knowingly and intentionally possessing with intent to distribute, five or more grams of a substance containing cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B); (3) being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(c)(1)(B); (4) possessing a firearm in furtherance of a drug trafficking crime, id. § 924(c)(1)(A)(I); and (5) knowingly and intentionally distributing a mixture or substance containing cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Count 1 of the indictment was based on the crack cocaine sold to Haynes at the second controlled purchase. Counts 2, 3, and 4 were based on the crack cocaine and the 9mm pistol seized from the officers' execution of the search warrants. And Count 5 was based on the powder cocaine sold to Haynes at the first controlled purchase.
In anticipation of trial, the government gave notice of its intent to present evidence of other crimes, wrongs, or acts committed by Harris. See Fed. R. Evid. 404(b). The government's notice delineated the "other act" evidence that it intended to offer: (1) Harris sold cocaine and crack cocaine to Haynes on numerous occasions prior to the controlled purchases; (2) during the same period, Harris transacted a number of drug deals with two other individuals, Troy Powers and Mario Brown; (3) Harris drove a number of luxury vehicles, including a black Lexus; and (4) in addition to the charged firearm, officers recovered the .22 revolver and 9mm ammunition during their searches. In response to the government's notice, Harris filed a motion in limine, which sought to bar the evidence of prior drug deals with Haynes, Powers, and Brown as irrelevant and as improper propensity evidence under Rule 404(b). Harris's motion also sought to keep out the evidence of the luxury vehicles and the recovered-but-uncharged revolver and ammunition as irrelevant and unfairly prejudicial.
The district court held a hearing on Harris's motion in early October 2006. With regard to the prior drug deals between Harris and Haynes, the district court stated that "those transactions . . . are relevant to show the history between the two. And in that sense they are intricately related to the charges found in . . . the indictment. So things that go to their history and relationship are very relevant and will not be barred." The district court explained that the evidence was also admissible under Rule 404(b) because it "would go to show the defendant's knowledge of cocaine, his intent to distribute it, and it would go towards establishing the nature and extent of the relationship between the defendant and [Haynes]." As for the drug transactions between Harris and Powers and between Harris and Brown, the district court explained that:
[E]vidence of those should be limited to the same time frame that [Haynes] was purchasing crack or powder cocaine from [Harris]. For that time frame the other incidents are relevant as corroboration of [Haynes's] testimony, and to show that there was a source that Harris had for purchasing the cocaine that he in turn sold as cocaine or crack cocaine.
The district court also determined that the evidence that Harris drove luxury vehicles would "be relevant to show an unaccounted for source of income if the Government is able to introduce other evidence that the defendant lacked a source of income." The district court explained that the probative value of the vehicle evidence would not be outweighed by prejudice, "because there's nothing inherently illegal or improper about owning or driving a Lexus automobile." Finally, with respect to the .22 revolver and the ammunition, the court stated "[t]he second gun doesn't add much prejudice to the first gun, which is required under the Government's indictment, if it's going to prove its charge."
The day after the hearing, Harris pled not guilty to all five counts in the indictment, and the case proceeded to a jury trial. During the government's case-in-chief, the government introduced testimony from Haynes, Powers, Brown, Harris's girlfriend, and several DEA agents, as well as physical evidence and the audio and video recordings from the controlled purchases. The recordings portrayed Harris meeting with Haynes, the two men conversing about basketball shoes, and Harris counting money. The recordings did not show drugs being transferred, nor did they contain dialogue about the drug transactions.
In order to place its evidence of the controlled purchases into context, the government elicited testimony about other drug deals between Haynes and Harris. But before Haynes could testify to his prior dealings with Harris, the district court gave a limiting instruction to the jury:
Ladies and gentlemen, you're now hearing testimony about drug transactions other than those charged in the indictment. The ones charged in the indictment were in June of 2006. I want you to understand that this evidence of other drug transactions is admitted for the limited purpose of showing the defendant's knowledge of the drugs involved, his intent with respect to them, and the relationship and history between the defendant and this witness. You're ...