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United States v. Brown

United States Court of Appeals, Seventh Circuit

May 13, 2016

United States of America, Plaintiff-Appellee,
Jerry Brown, et al., Defendants-Appellants.

Argued November 9, 2015

Appeals from the United States District Court for the Central District of Illinois. No. 12-cr-40031 - Sara Darrow, Judge.

Before Wood, Chief Judge, Rovner, Circuit Judge, and Shah, District Judge.[*]


This case involves a conspiracy to distribute crack cocaine in Kewanee, Illinois, and surrounding areas. Spotting the opportunity for profit, Chicago drug dealer Frederick Coleman and a colleague began to focus on Kewanee in late 2008. Eventually, Jerry Brown, Darrion Capers, Nicholas Clark, Qubid Coleman, and James Tatum (among others) joined their operation. The police eventually caught up with them, and in 2012 they were charged by a grand jury with conspiracy to distribute and possess with intent to distribute at least 280 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Qubid Coleman and Tatum pleaded guilty and are not part of this appeal. Frederick Coleman, Brown, Capers, and Clark were convicted after a jury trial and sentenced to varying terms of imprisonment and supervised release. These four have appealed. Before this court, they raise challenges to both their convictions and their sentences. Finding no reversible error, we affirm the judgments of the district court.


Throughout the twelve-day trial, the government presented evidence that Frederick Coleman and his colleague, Dorian Thompson, had been selling drugs in Chicago for some time. (From this point, our references to "Coleman" mean Frederick unless we specify otherwise.) In 2008, they realized that there were untapped profit opportunities in Kewanee. They tested the potential new market by jointly purchasing some powder cocaine, cooking it into crack, and selling it there. Pleased with the results, they invited Nicholas Clark to join shortly thereafter; Clark acted as the Kewanee operation's first "runner, " helping to deliver the drugs to customers and collect money. Coleman ended his alliance with Thompson in early 2009, when he entered into a partnership with Brown. Participating runners included Clark, Capers, Tatum, Qubid Coleman, and others.

The government's theory was that Coleman and Brown obtained the cocaine in Chicago, cooked it into crack with the help of the runners at different locations in Kewanee and Chicago, and had various members of the conspiracy transport either the powder or the crack from Chicago to Kewanee. Members of the conspiracy sometimes elicited assistance from customers and sometimes compensated those customers with crack. The conspiracy's members used Western Union and MoneyGram to circulate money among sellers, purchasers, and wholesalers, often handing cash to family members, friends, or customers and directing that they conduct a transfer.

Kewanee law enforcement officers became aware of the operation and conducted eight controlled buys with four of the conspiracy's customers. At trial, the government backed up the controlled-buy testimony with audio and video recordings of the exchanges and call logs from the three cell phones the conspiracy's members used for drug sales. The government also presented evidence of the Western Union and MoneyGram transactions, along with testimony by some of the people involved in the transactions; jail calls between arrested members of the conspiracy and members not yet arrested; evidence of drugs and drug money; and extensive testimony by members of the conspiracy, eleven customers, and various other involved witnesses. After the jury convicted, the court sentenced the four defendants as follows: Coleman and Brown received mandatory life sentences, to be "followed" by ten years of supervised release; Capers was sentenced to 188 months' imprisonment and five years' supervised release; and Clark received a 120-month sentence, followed by ten years of supervised release.



The defendants raise a number of challenges to the district court's handling of the evidence at trial. We review these rulings for abuse of discretion. United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir. 1990) ("appellants carry a heavy burden in challenging the trial court's evidentiary rulings on appeal because a reviewing court gives special deference to the evidentiary rulings of the trial court." Id. at 1489–90 (internal quotation marks omitted)). They also assert that the cumulative errors were so serious that they did not receive the due process that is guaranteed by the Constitution; we review this de novo. Finally, Coleman, Brown, and Capers challenge various aspects of their sentences; we review these arguments using a mixed standard of review.


Before trial, the defendants learned that the government intended to use the MoneyGram and Western Union records in its case-in-chief. They filed a motion in limine to prevent this, but they were unsuccessful, and so they objected again at trial. The government had obtained through subpoenas the records of the two companies showing wire transfer transactions between the defendants and others allegedly involved in the conspiracy. The lead investigator in the case, Inspector Nicholas Welgat, created summary exhibits from the subpoenaed records. The summaries grouped transactions by sender and listed the amount of money sent, the date of the transaction, the sender's name and address, the recipient's name, and the agency from which the funds were sent. The exhibits included the sender's phone number and recipient's address for some transactions. The government witnesses testified that the summary exhibits were generally consistent with their recollections of the drug transactions in which they had engaged with the defendants, and the government later moved to admit the actual exhibits through Inspector Welgat.

The court admitted the exhibits as summaries of records of regularly conducted activity, colloquially known as "business records." Federal Rule of Evidence 1006 authorizes a proponent of evidence to use a "summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court, " provided that the proponent makes the content available to the other party. Federal Rule of Evidence 803(6) allows admission of hearsay documents that record a "regularly conducted activity" where (A) the records are made "at or near the time" of the activity "by-or from information transmitted by- someone with knowledge;" (B) the records are "kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;" (C) "making the record [i]s a regular practice of that activity;" (D) "all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification;" and (E) "neither the source of the information nor the method or circumstances of preparation indicate a lack of trustworthiness." Federal Rule of Evidence 902(11) identifies "certified domestic records of a regularly conducted activity" as "self-authenticating" where the custodian or other qualified person does the certifying in compliance with a federal statute or Supreme Court rule.

The defendants maintain that the involvement of a third party in creating the MoneyGram and Western Union records-namely, the customer making the wire transfer-removes those records from the ambit of Rule 803(6). But thirdparty involvement is not inevitably fatal. In United States v. Emenogha, 1 F.3d 473, 484 (7th Cir. 1993), we found that "additional sources of corroboration" can "cure the hearsay problem" that a third party's involvement in creating a business record introduces. There, the defendant argued that bank records of ...

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