Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 57-John C. Shabaz, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge
ARGUED SEPTEMBER 19, 2008
Before POSNER, RIPPLE and EVANS, Circuit Judges.
Calvin Bruce was charged by indictment with one count of possession with intent to distribute fifty grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). He entered a plea of not guilty, but was convicted after a jury trial. The district court sentenced him to 360 months' imprisonment followed by 10 years of supervised release. Mr. Bruce appeals both his conviction and his sentence. For the reasons set forth in this opinion, we affirm Mr. Bruce's conviction and remand this case for resentencing in light of the Supreme Court's decision in Kimbrough v. United States, ___ U.S. ____, 128 S.Ct. 558 (2007).
On the afternoon of March 28, 2007, Calvin Bruce was a passenger in a car that was stopped by officers of the Dane County (Wisconsin) Narcotics and Gang Task Force. During the stop, the police discovered an outstanding warrant for Mr. Bruce's arrest and took him into custody. Mr. Bruce used his cell phone to call his girlfriend, Endia Matthews, who drove to the scene of the traffic stop. After Matthews arrived, the police learned that she was on probation and had driven to the scene on a revoked driver's license. The police did not arrest her, but asked for consent to search her house. Matthews consented. The police obtained the keys to the house from Mr. Bruce, who was then taken to a police station for questioning.
Madison Police Detective Dorothy Rietzler, Officer Denise Markham and Officer Jason Baumgart went to Matthews' house to conduct the search and to interview Matthews. At the house, they found $2,580 in cash in a jacket belonging to Mr. Bruce. They also found a bag containing crack cocaine and pepper in the engine compartment of a van parked in the garage. Other drug paraphernalia were found throughout the house. Matthews denied any knowledge about the drugs or the money.
After completing the search, the police officers went to the station to interview Mr. Bruce. Detective Rietzler led the interview, portions of which also were attended by Officers Markham and Baumgart. Before the interview began, Detective Rietzler turned on an audio recorder. Mr. Bruce initially denied any knowledge about the drugs and the money. Eventually, however, he admitted that the money belonged to him and also admitted that there were "about two ounces" of crack in the van. R.75 at 26. Detective Rietzler offered Mr. Bruce "a chance to help [him]self" by working with police to incriminate "the big fish"-that is, other drug dealers who sold larger amounts of drugs.
R.75 at 20, 21. Mr. Bruce agreed to assist the police and began by telling them the name and location of one of the dealers from whom he bought drugs. Detective Rietzler then turned off the audio recorder but continued the interview for twenty more minutes.
Mr. Bruce was released from custody after the interview. He ultimately failed to make good on his promise of cooperation, however, and, in April 2007, he was indicted in the United States District Court for the Western District of Wisconsin on one count of possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1).
Mr. Bruce's jury trial was held in August 2007. At a pre-trial hearing, Mr. Bruce alleged that Detective Rietzler had violated Wisconsin law by continuing to interrogate him after turning off the audio recorder. Wisconsin Statute § 968.073 provides, in relevant part: "It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless . . . good cause is shown." Wis. Stat. § 968.073(2). Mr. Bruce requested a jury instruction stating that the law requires recording of interrogations by police and instructing the jury that "unrecorded oral statements made by a defendant out of court to a law enforcement officer should be viewed with caution." R.60 at 2. The district court declined to give the proposed instruction because it agreed with the prosecution that any violation of state law by the police was irrelevant to Mr. Bruce's guilt or innocence under federal law.
At trial, the Government presented the recovered money, the crack cocaine found in the van, the drug paraphernalia found in the house and garage, and mail addressed to Mr. Bruce at Matthews' address. Detective Rietzler, Officer Markham and Officer Baumgart testified about the recorded part of the interview, portions of which were played for the jury. Detective Rietzler and Officer Markham testified that, after the recorder was turned off, Mr. Bruce continued to be relaxed and cooperative. They also testified that Mr. ...