Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 907-Milton I. Shadur, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
ARGUED SEPTEMBER 28, 2007
Before POSNER, FFLAUM, an SYKES,Circuit Judges.
Aristeed Cannon was convicted of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal he makes several evidentiary arguments-most notably, an attack on the admission of a videotaped deposition taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure-and also challenges the sufficiency of the evidence used to convict him. Finally, he asks us to reconsider our case law permitting, in accordance with Harris v. United States, 536 U.S. 545 (2002), the use of judicially found facts in the imposition of a statutory minimum sentence. We affirm Cannon's conviction and sentence.
Cannon was apprehended during a controlled drug buy in Maywood, Illinois. Operating with a confidential informant, local police and several DEA agents arranged to purchase two ounces-two "zones," in the drug dealer's parlance-of crack cocaine from Cannon. Every-thing about the deal operated smoothly except the audio-recording equipment that was to have memorialized the transaction; for reasons unknown, the system failed.
Cannon arrived on schedule with his brother (who was also apprehended and found in possession of powder cocaine), approached the government's undercover vehicle, and spoke with DEA Agent Charles Ellison. Cannon then gave Ellison two baggies of crack cocaine (each containing roughly an ounce) in exchange for $1,500 of recorded currency. With the transaction completed, Ellison gave the arrest signal to his surveillance team. Cannon attempted to flee, but DEA Agent Gary Jackson, who was observing the deal from a block away in his parked car, quickly apprehended him in a nearby yard. Cannon was searched and found in possession of the $1,500 in recorded currency, several Ziploc bags, and a small scale.
A jury convicted Cannon of distributing crack cocaine. During trial, the government played a videotaped deposition of Agent Jackson in lieu of his live testimony. Video-taped testimony is the exception in criminal trials, but the district court allowed it here because Jackson was in the Marine Corps Reserves and was deployed to Iraq before the start of trial, thus satisfying the "exceptional circumstances" requirement of Rule 15 of the Federal Rules of Criminal Procedure. Cannon and his counsel were present for the deposition, and Jackson was subjected to cross-examination.
At sentencing the district court found, over Cannon's objection, that Cannon had distributed 54 grams of crack cocaine. That finding differed from the jury's finding that Cannon had distributed between 5 and 50 grams of crack. The drug-quantity evidence at trial was conflicting; the weights measured at the local police department were less than the results from the state police lab. The judge credited the measurements from the state lab because the police department's measurements of each bag of cocaine were less than the weights reported by the state lab by exactly the same proportion-two-thirds. The judge concluded from this that one of the scales may not have been properly calibrated; his theory was that it was highly unlikely that two scales would consistently differ in this way by accident. Based on evidence that the state lab regularly tested and logged the accuracy of its equipment, the judge concluded by a preponderance of the evidence that the state lab's measurement of 54 grams was more reliable. That 4-gram increase triggered the 10-year statutory mandatory minimum sentence (up from 5 years), which the court then imposed.
Cannon challenges the sufficiency of the evidence supporting his conviction, citing the absence of an audio-tape recording of the controlled buy (owing to the failure of the recording equipment) and a discrepancy between the testimony of Agent Ellison and Detective Teutonico. The argument is meritless. We view the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor, and will uphold the jury's verdict so long as " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Jones, 418 F.3d 726, 729 (7th Cir. 2005) (quoting Jackson v. Virginia,443 U.S. 307, 319 (1979)).
Despite the failure of the audio-recording equipment, the government's evidence was more than sufficient, including as it did the testimony of multiple witnesses who participated in the controlled buy and arrested Cannon in possession of the buy money as he attempted to flee the scene. The contradictory testimony of Agent Ellison and Detective Teutonico, who provided inconsis-tent accounts of whether Ellison intended to purchase two or three ounces of cocaine, was minor, unimportant, and in any event a matter for the jury to weigh in evaluating their testimony. We do not second-guess questions of witness credibility. United States v. Bowman, 353 F.3d 546, 552 (7th Cir. 2003). This record is easily sufficient for us to conclude that a rational jury could find Cannon guilty beyond a reasonable doubt.
Next up is Cannon's assertion that admission of DEA Agent Jackson's videotaped deposition was unconstitutional and unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. We review this argument for plain error because Cannon failed to raise it below. See United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). Agent Jackson was deployed to Iraq before trial, and the district court granted the government's request under Rule 15 of the Federal Rules of Civil Procedure to take his testimony by videotaped deposition before he left the country. Cannon was present with his counsel during the deposition, and Jackson was subjected to full cross-examination. In an underdeveloped argument, Cannon asserts that the admission of the videotaped deposition was unfairly prejudicial and possibly unconstitutional because Jackson's testimony was not subjected to the rigors of an actual trial.
Although rare, preservation of witness testimony by deposition is authorized in criminal cases under Rule 15(a)(1) when "exceptional circumstances and . . . the interests of justice" require it. The defendant's presence is required, and the "scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial." Rule 15(c), (e)(2). The rule provides that all or part of the deposition may be used as evidence "as provided by the Federal Rules of Evidence." Rule 15(f). Cannon does not argue that the terms of the rule were not met, and we have previously upheld the use at trial of Rule 15 depositions against Confrontation Clause challenges. See, e.g., United States v. Donaldson,978 F.2d 381, 392-93 (7th Cir. 1992); United States v. Kehm, 799 F.2d 354, 360-61 (7th Cir. 1986). These cases predate Crawford v. Washington,541 U.S. 36 (2004), but we see no reason, post-Crawford, to question the constitutionality of admitting fully cross-examined testimony preserved by a properly conducted Rule 15 deposition. Crawford held that the Confrontation Clause ...