Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 0270-Charles R. Norgle,Sr., Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED FEBRUARY 25, 2011-
Before EASTERBROOK, Chief Judge, and FLAUM and ROVNER, Circuit Judges.
Hurreon Walker and Rashad Logan were convicted of drug and gun charges after separate jury trials. Both defendants were sentenced to 25 years' imprisonment. They had plotted with two other men to rob a cocaine stash house at gunpoint, but the stash house did not actually exist, and their partners turned out to be an undercover agent and a paid informant. That informant, Jamie Ringswald, had targeted the defendants and generated the bulk of the evidence against them. He also played a significant role at their trials. Yet Ringswald was not called by prosecutors to testify, and instead the government introduced his story entirely through audio recordings and narrative from investigators. Prosecutors justified this approach with the explanation that none of Ringswald's out-of-court statements was being offered for its truth. What's more, the government persuaded the district court to prospectively curtail impeachment of Ringswald.
On appeal Walker and Logan contend that their Sixth Amendment right to confront Ringswald was violated by the government's unfettered use of his out-of-court statements and the district court's restriction on impeachment. Logan also contends that his convictions are not supported by sufficient evidence and that his overall prison sentence is unreasonably long. Logan's separate arguments lack merit, but we agree with the defendants that the handling of Ringswald's statements, some of them obvious hearsay, raises a concern about the Confrontation Clause. We conclude, however, that any error was harmless, and thus we affirm the judgment as to each defendant.
Ringswald had accumulated at least five felony convictions before he targeted Walker and Logan while working as an informant for the Bureau of Alcohol, To- bacco, Firearms and Explosives ("ATF"). Initially the ATF had been investigating Walker's brother, but he spurned Ringswald's proposal to rob a stash house. He volunteered, however, that Walker and Logan might be willing. Agents then sent Ringswald after Walker, who recruited Logan. Using details scripted by the ATF, Ringswald explained that a disgruntled courier for a Mexican cartel, later played by ATF Special Agent Christopher Bayless, wanted help in stealing the cocaine from one of the cartel's stash houses. At a party on April 24, 2007, Ringswald introduced Bayless to Walker and Logan in the first of three meetings conducted under ATF surveillance. Bayless would become the govern-ment's principal witness against the defendants and provide the foundation for voice recordings made by Ringswald. Bayless also would recount statements made by Ringswald to another ATF agent.
The April 24 party was captured on audio and video. Agent Bayless asked the defendants if Ringswald had shared the "skinny" on the planned heist. Walker said yes but wanted Bayless to repeat the "lowdown." The agent then outlined his plot to rob a stash house in retaliation for being forced to help pay for cartel drugs that had been stolen from a courier he recruited. Bayless explained that the cartel's couriers were given a 45-minute window to arrive at a stash house and pick up loads of cocaine typically weighing between 15 and 20 kilograms. Each stash house, he said, was situated in one of two contiguous Chicago suburbs, but was never the same location used twice. Couriers were not told the address in advance, although the choice of suburb was disclosed one day before a delivery. Two armed guards, Bayless cautioned, would be posted at the stash house. Walker absorbed this information and commented that they didn't "need either one o' their asses" and "might have to pop these mo'-fuckas." He proposed that they rush in "and pop the one" at the door.
From there the conversation turned to the mechanics of the robbery. Bayless told Walker and Logan that the next distribution was planned for sometime after 3:00 p.m. on May 1, seven days later. Bayless proposed that on that day and hour the four of them rendezvous at a forest preserve (where, he mused, the probability of encountering surveillance cameras would be low) to await news of the stash-house address. They decided that Bayless would enter the stash house first, followed by the others. The conversation ended in agreement to reconvene for another strategy session on April 30 after Bayless had learned in which of the two suburbs the stash house was located.
Throughout this conversation, Walker did most of the talking for the defendants. Logan chimed in, however, when the discussion turned to shooting the stash-house guards: "It comes to it, we ain't, we ain't duckin' it, though. You feel me"? When Agent Bayless replied, "Ya gotta do what you gotta do," Logan agreed, "Hell, yeah. No prob'm." Logan also proposed finding a hotel in a neighboring town where they could lie low after the robbery.
Two days later, on April 26, Ringswald appeared at the ATF office and told Special Agent Matthew Inlow, who was working with Agent Bayless, that Walker had just given him a Smith & Wesson .357 Magnum revolver. Or more precisely, that was the hearsay account of Walker's deed elicited through Agent Bayless; prosecutors did not call Ringswald at either trial, nor at Logan's trial did they call Agent Inlow. According to Bayless, the gun had been inside a purse in Ringswald's car when the informant arrived at the ATF office.
The April 30 meeting went forward as planned, except that Logan did not attend. As before, the ATF obtained video and audio recordings. Walker strategized with Ringswald and Agent Bayless about whose car to use, who should drive, and where in the car the defendants and Ringswald should hide during the trip to the stash house. Bayless confirmed the May 1 delivery and reminded the group that the guards at the stash house would be armed. He also got Walker to admit giving the Smith & Wesson revolver to Ringswald. That "fuckin' 3-5-7 you dropped Jamie," the agent told Walker, "is huge, man!" Walker chuckled and said he also had access to "a few automatics." But usually, he told Bayless, when adversaries "see some'in' like that" revolver, they "know when to quit."
The next day Ringswald was outfitted with a tape recorder and video camera before he met Walker and Logan for the trip to the forest preserve. On the ride over in Walker's vehicle, Logan groused that, despite expecting "to get a lot o' keys" of cocaine, he really "would like to have some cash" from the robbery. And whether two guards or five, he said, "I'll go in there" for the money. As evidenced by the audio recording, Walker obtained Ringswald's assurance that Bayless would be carrying the Smith & Wesson revolver. Even so, the three men agreed, there was risk in committing the robbery armed only with a single gun (a "Mission Impossible-ass" task, in Logan's opinion), so the group detoured to a residence for another weapon. Walker went into the house alone, and while waiting Logan ventured that he knew where to get another gun if Walker failed. But Walker returned with a "heater," which, he boasted, would "even up the odds." He added that he "could o' got pistols" from a "lot o' motha-fuckas."
When the group joined Agent Bayless at the forest preserve, Ringswald told him, "I got one more pistol on me." After the four men had reviewed the robbery plan again, Bayless gave the arrest signal. Walker and Logan ran but were captured quickly by the SWAT team hiding in the woods. Ringswald gave the agents a Sturm Ruger revolver. The gun had not been in his possession when ATF agents searched him before he joined Walker and Logan in the vehicle.
The defendants were taken to a police station and interrogated. Walker's statements were not offered at his trial. Logan's confession was admitted. Logan had said after Miranda warnings that Walker recruited him to help with the robbery, that he accompanied Walker and Ringswald to retrieve the first gun from the home of Walker's girlfriend, and that they obtained the second gun from her house on their way to the forest preserve.
A grand jury indicted Walker and Logan together, but the cases were severed for trial because of Logan's con- fession. Both men were charged with conspiring to possess cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1); attempting on May 1 to possess cocaine with intent to distribute, id.; and possessing and carrying the Sturm Ruger revolver in connection with the drug offenses, 18 U.S.C. § 924(c)(1). Walker ...