Court: Court of Appeals for the Seventh Circuit; August 12, 2003; Federal Appellate Court
Marcus Hull was convicted of conspiracy and possession with intent to distribute crack cocaine. He appealed the district court's admission of testimony and audio recordings, jury instructions on drug quantity, and sentencing decisions. The court affirmed his convictions and sentence.
Hull and his wife, Ama Opong Duah, operated as drug dealers in Gary, Indiana, with FBI informant Lashandra Valladares facilitating controlled drug purchases from Hull. These transactions were recorded and monitored by law enforcement. Hull was arrested during a scheduled buy, and after being taken to the hospital, 3.6 grams of crack cocaine were found in his hand. A search of their apartment revealed an additional 27 grams of crack cocaine, a loaded shotgun, $18,000 in cash, and drug distribution paraphernalia.
At trial, Agent Bookwalter testified about the drug transactions, while Hull's wife, who had pleaded guilty and cooperated with the government, provided incriminating testimony against him, including their drug sales and a false claim they filed regarding the seized money.
Hull, who represented himself for part of the trial, did not raise significant objections during the proceedings but later appealed on grounds including hearsay regarding Agent Bookwalter’s testimony and the authenticity of the audio recordings. He also contested the district court's sentencing decisions, claiming violations of his rights related to drug quantity calculations and enhancements for obstruction of justice and firearm possession.
The court noted that because Hull did not object to the evidence at trial, the standard of review for the admission of evidence was for abuse of discretion.
A defendant forfeits the right to appeal an issue if no objection is made at trial, or if the objection does not adequately raise the issue, necessitating a review for plain error. In this case, Hull did not object to certain testimony during trial, so the court will review his appeal under this standard. A plain error occurs when there is an actual miscarriage of justice, suggesting that the defendant likely would not have been convicted without the improperly admitted evidence. Hull argues that the district court wrongly admitted hearsay testimony from Agent Bookwalter regarding an informant's identification of Hull during controlled buys. However, this testimony is not classified as hearsay since it was not used to prove the truth of the informant's statement, but rather to provide context based on Agent Bookwalter's observations. Even if it were considered hearsay, the evidence against Hull—including his arrest with crack cocaine and his wife's testimony about their drug transactions—was substantial enough to support his conviction, making any error in admitting the testimony insufficient for reversal.
Hull also challenges the admission of audio recordings related to the controlled buys, arguing that the government failed to prove their accuracy and that he was not identified on the tapes. He waived his objection to the first tape but adequately preserved the identity issue. He did not object to the accuracy of either tape during trial, and only raised concerns about hearsay for the second tape through his attorney, which was admitted under a limiting instruction. Therefore, the issues regarding the accuracy of the tapes and the identity of the speaker will be reviewed for plain error due to Hull's failure to object adequately.
A party must provide sufficient proof to support the admission of evidence, specifically demonstrating that recorded conversations are authentic, accurate, and true representations of the events in question, as per Federal Rule of Evidence 901(a). In the case at hand, the government failed to present the informant's testimony to verify the recordings' accuracy, relying instead on Agent Bookwalter, who only heard part of the conversation. However, circumstantial evidence can establish authentication, as shown by the phone calls made to a cellular phone used by Hull, who identified himself as 'Coolie.' Testimony indicated that Hull was known by this name and was observed completing transactions as discussed in the calls, thus establishing the recordings' authenticity. Hull did not claim the tapes were altered, and there was substantial evidence to support his conviction, making his challenges to the tapes insufficient to demonstrate plain error.
Regarding voice identification, Federal Rule of Evidence 901(b)(5) allows for identification based on familiarity with the voice under relevant circumstances. Hull’s participation in the trial allowed the jury to recognize his voice, fulfilling minimal familiarity standards for admissibility.
Hull also challenged his 365-month sentences under the Apprendi v. New Jersey standard, arguing that the jury was not instructed to find the drug type and quantity beyond a reasonable doubt. As this issue was not raised before the district court, it is subject to plain error review. Apprendi mandates that any drug type and amount necessary for enhanced sentencing under 21 U.S.C. § 841 must be specified in the indictment and found by the jury beyond a reasonable doubt to exceed the default statutory maximums.
Hull’s Apprendi claim centers on his sentences exceeding the statutory maximum of 20 years under 21 U.S.C. § 841(b)(1)(C) due to the quantity of drugs involved. To qualify for a higher sentencing range of 20 to 40 years under 21 U.S.C. § 841(b)(1)(B), Hull needed to be convicted of conspiring to possess with intent to distribute over 5 grams of crack cocaine. The indictment specified the quantity as exceeding five grams, and while Count V’s jury instruction did not explicitly mention the 5-gram threshold, the verdict forms for both counts required the jury to determine if the quantity was above or below that amount. The jury was correctly instructed that the government must prove Hull's guilt beyond a reasonable doubt. Despite some ambiguity in the instructions, any error was deemed harmless, as a properly instructed jury would likely have found Hull guilty of conspiring to possess and possessing over 5 grams of crack cocaine. Evidence presented at trial indicated Hull sold 4.1 grams of crack cocaine, his wife sold 1.1 grams, and a total of 30.6 grams was found in his possession and apartment. Thus, Hull’s sentence was consistent with due process as outlined in Apprendi.
Additionally, Hull contested the district court's drug quantity determination for sentencing, claiming it erroneously exceeded 500 grams due to double-counting. The court reviews such factual determinations under the clearly erroneous standard. The sentencing guidelines allow for approximation of drug quantities if the seized amount does not reflect the offense's scale. The court primarily relied on the presentence investigation report, estimating Hull was responsible for 567 grams of crack cocaine, which was based on the quantities involved in controlled sales, drugs found during his arrest, and testimony regarding sales made by Hull and his wife over the preceding year.
Duah’s inconsistent testimony, even at her most conservative estimate of dealing one ounce every three weeks, supports Hull’s sentence exceeding 500 grams. Any potential error in considering both seized drugs and Duah’s estimates is deemed harmless. Hull challenges the district court's obstruction of justice sentence enhancement under Guidelines section 3C1.1, arguing he did not counsel Duah to file a false forfeiture claim. However, while it was erroneous to conclude he advised her to file the false claim, he did counsel her to take full responsibility for the drugs to mitigate his liability. This conduct, occurring during the investigation, is sufficient to uphold the obstruction enhancement as it relates to his conviction. Hull's arguments regarding a gun enhancement for a shotgun found in the apartment and the adequacy of reasons for his maximum guideline sentence lack merit. The gun enhancement was justified as it is not improbable the weapon was possessed during the offense, and Hull did not provide evidence to the contrary. Regarding sentencing rationale, although the district court’s explanation was minimal, Hull's failure to object during sentencing waives this issue on appeal.
The judgment of the district court is affirmed. Hull claimed to be the innocent owner of the money, asserting it was not drug-related; however, his trial testimony revealed that $15,000 was derived from drug sales, while only $3,000 came from his tax return. Hull objected to the introduction of drugs obtained during controlled buys, arguing they were sourced from an informant rather than himself. This argument was forfeited because he did not raise it during the trial and failed to reference any relevant legal authority on appeal, resulting in waiver. Hull, who represented himself for part of the trial, was advised by the district court to allow standby counsel to take over due to his ineffective defense. Additionally, Hull contested Agent Bookwalter's testimony identifying him as “C” or “Coolie,” which was ruled inadmissible in prior cases; however, Hull elicited this testimony during cross-examination, and the court was not responsible for filtering his evidence. Furthermore, a voicemail from Hull identified him as "Coolie," supporting the jury's conclusion. Duah, another key witness, testified inconsistently about drug sales and claimed responsibility for the drugs to minimize her sentencing risk compared to Hull, who had a criminal history.
