Appeal from the United States District Court for the Central District of Illinois. No. 4:06-CR-40081-Joe Billy McDade, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before KANNE and WILLIAMS, Circuit Judges, and SPRINGMANN, District Judge.*fn1
A jury convicted Jesse Charles Adams, Jr. of possession with intent to distribute and conspiracy to distribute crack cocaine from at least 2001 through June 13, 2006. Adams originally raised four issues on appeal:
(1) whether the district court improperly admitted testimony regarding three earlier drug-related events in violation of Rule 404(b);
(2) whether the district court erred in admitting testimony related to a non-testifying "confidential source" in violation of Adams's Sixth Amendment right of confrontation;
(3) whether the prosecutor's improper vouching for a witness denied Adams a fair trial; and
(4) whether any errors resulted in cumulative error. We reject these arguments and affirm his conviction because:
(1) the district court properly admitted the evidence of Adams's involvement in the conspiracy as direct evidence; (2) any Confrontation Clause errors were harmless; (3) the improper comment during closing remarks did not deny Adams a fair trial; and (4) Adams has not shown that but for the collective errors the jury would have come to a different verdict.
While this appeal was pending, we granted Adams's request to file a supplemental memorandum addressing the Fair Sentencing Act of 2010, its modification of 21 U.S.C. § 841, and his request for resentencing. But because the change in the statute is not retroactive, we conclude that it does not affect Adams's case, and affirm his sentence.
Jesse Charles Adams, Jr. was arrested on June 13, 2006 after police officers responded to a disorderly conduct complaint in East Moline, Illinois. While Adams was in the booking room awaiting the booking procedure, a non-arresting officer, Officer Chad Broderson, received a phone call from a confidential informant ("CI"). The CI told Officer Broderson that Adams was a known drug dealer who was currently in police custody and would likely have drugs hidden in his rectum. Officer Broderson checked to see if Adams was in custody and went to the booking cell to inspect Adams's property. A small piece of crack fell out of Adams's hat, and Officer Broderson also found a crack pipe in Adams's waistband. After Adams refused to show Officer Broderson his rectal area, the officer left the room to discuss a rectal search with an assistant state's attorney. When he returned, Adams was holding two feces-covered plastic bags which Adams claimed he found on the floor of the booking room. A videotape of Adams in the booking cell showed Adams leaning to one side and moving his hand below his waist during this time. Officer Broderson ultimately recovered a crack pipe, $861 in cash, and a total of 5.2 grams of crack cocaine and 5.9 grams of powder cocaine. Based on this arrest, Adams was indicted on August 17, 2006 for possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A grand jury returned a superseding indictment on April 18, 2007 that added a second count charging Adams with conspiracy to distribute 50 or more grams of crack cocaine from at least 2001 through at least June 13, 2006, in violation of 21 U.S.C. § 846.
Adams pleaded not guilty. At trial, the government supported the conspiracy count largely through witness testimony. Laurel Smith testified that she bought crack from Adams weekly from 2001 to 2004, except when he was unavailable, and three other women who either bought crack from, delivered crack to, or accompanied Adams on his way to buy crack testified about those events.
The government also called several police officers to testify regarding their encounters with Adams between 2001 and 2006. Sergeant Luke Blaser testified to a March 27, 2002 incident where Adams was leaning into the driver's side of a parked car occupied by Charlene Dixon. Sergeant Blaser arrested Dixon on an outstanding warrant. During this arrest, he also arrested Adams for possession of a controlled substance. At the police station, the inventory of Adams's belongings revealed he had $3,000 in cash in his pocket. This cash was grouped into two separated bundles of $1,000 in increments of $100, and the remaining $1,000 bundled in smaller bundles of $100 each.
Officer Eric Schaver testified to an arrest on May 18, 2004, when Adams was arrested for driving with an expired license. During a search, Officer Schaver found $290 in cash and a plastic bag containing 1.6 grams of crack cocaine. And on June 1, 2006, Adams was again arrested for driving without a license. Officer Darren Gault received a phone call from a CI saying that Adams had a large sum of money and was intending to buy crack cocaine. The CI also gave Adams's location and car information. During this arrest, Adams was found to have a crack pipe and $1,800 in cash, bunched in $100 bundles.
Three of Adams's alleged co-conspirators testified as to their dealings with Adams. Each acknowledged at trial that they were testifying under the terms of a plea agreement and in hopes of receiving a reduced sentence for their cooperation. William Neal was the leader of the group and the person in charge of supplying the East Moline area with drugs. Maurice Gibson testified that he received his drug supply from Neal, and became close to Adams when they were both incarcerated in 2004. Once the two were released, Gibson testified that he would distribute drugs to Adams on a consistent basis, he had an agreement with Adams to share profits from the distribution, and he saw Adams dealing crack from a shared crack house. Kenneth Wilson also received his drug supply from Neal, and testified that he had sold crack to Adams on a consignment basis. Wilson further testified that he saw Adams cooking powdered cocaine into crack for the purpose of distributing it. The three co-conspirators testified that they would front drugs to Adams with the understanding that Adams would split his profits with them. Neal testified that he initially fronted Adams with 3.5 grams of crack with the understanding that Adams would pay Neal back for that amount before he could get a larger amount to sell. Over time the amounts fronted to Adams increased, with Neal testifying that at one point, Adams was receiving a half-ounce of crack from Neal five times a week and sometimes twice a day.
Adams's attorney and the prosecution agreed to a stipulation detailing the dates of Adams's incarceration between 2000 and 2006. Adams stipulated to these dates because his defense at trial was that he was a crack-cocaine user, not a conspirator or distributor. To further this defense and to suggest that large amounts of crack could be for self-use, Adams's counsel elicited testimony from police officers as to statements Adams made about how much crack it took him to get high. Testimony was also elicited about how much usage a crack pipe experienced and whether one crack pipe was different from another one seized from Adams. In addition to his defense that he was a crack user, ...