United States v. Eberhart, Ivan

467 F.3d 659, 71 Fed. R. Serv. 798, 2006 U.S. App. LEXIS 27053, 2006 WL 3079110
Court of Appeals for the Seventh Circuit·Decided November 1, 2006·No. 05-2366·Published·Cited by 28 cases

Opinion

FLAUM, Chief Judge.

On April 3, 2002, a jury convicted Ivan Eberhart of conspiracy to possess cocaine with intent to distribute in violation of 21 *662 U.S.C. § 846 and acquitted him of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Eberhart appeals his conviction, arguing that his trial was tainted by prosecutorial misconduct, improperly admitted evidence, and improper jury instructions. He also claims that the district court erroneously denied his motion for acquittal. For the following reasons, we affirm Eberhart’s conviction and sentence.

I. Background

On December 16, 1998, DEA Agents Daniel Foley and Robert Glynn arrested Charles Bolden after he sold two kilograms of cocaine to a government informant. Once arrested, Bolden agreed to help apprehend his supply source, who he identified as “E” and who the agents later identified as Eberhart.

At the agents’ direction, Bolden made several calls to Eberhart to arrange for the purchase of two additional kilograms of cocaine. While Bolden made the calls, Agent Foley listened to Bolden’s half of the conversations, and the agents made tape-recordings of both sides of the conversations. During one of the calls, Bol-den said he needed “two more,” and Eber-hart said “okay.” They also agreed to meet the next day outside a Kentucky Fried Chicken near the intersection of 83rd Street and Martin Luther King Drive in Chicago.

Before the meeting, the agents instructed Bolden to discuss a previous cocaine transaction, to indicate a willingness to pay Eberhart for a previous cocaine-related debt, and to give them a signal once the conversation occurred so that they could arrest Eberhart. Agent Glynn placed a transmitting device and tape recorder underneath Bolden’s clothing to allow the agents to listen to the conversation as it occurred and preserve the conversation for later use.

When Eberhart arrived at the previously agreed-upon location, he expressed (a well-founded) concern that Bolden was wearing a wire:

EBERHART: I’m talking about what you was talking about when you was down there at the office down at DEA. Uh.
BOLDEN: All mother fuckers shady, you think I’m wired or something. EBERHART: I’m just wondering, I’m just wondering.... You’d be concerned too (Unintelligible) I’m just curious.

Govt. Transcript 8A. Once Bolden allayed Eberhart’s fears that he was acting as a government informant, the men discussed a $40,000 debt that Bolden owed Eberhart. Eberhart expressed his general lack of concern about the debt, and the meeting ended. Bolden exited the car and signaled the agents, who arrested Eberhart. They discovered no drugs in Eberhart’s possession.

The agents read Eberhart his Miranda rights, and he confessed that he had distributed between twenty and forty kilograms of cocaine per month, that Bolden was one of his customers, and that he had sold Bolden two kilograms of cocaine on December 15, 1998. Eberhart also agreed to help the agents arrest his supply source, identified only as “Tommy.” Eberhart gave the agents a physical description of Tommy, his cellular and pager phone numbers, and the location of a “stash house” out of which Tommy operated. Eberhart explained that he received his drugs from Tommy on consignment and that he would pick up his cocaine at the stash house at 6:00 a.m. or 6:00 p.m.

At the agents’ direction, Eberhart then called Tommy to arrange a purchase. Soon after Eberhart made that phone call, however, he ceased cooperating, and the *663 agents never located Tommy. Nevertheless, they followed up on the information that Eberhart had provided, and a consensual search of the stash house uncovered two high-speed money counters, a firearm, and a scale.

At trial, the government introduced evidence of the investigation as described above. They played recordings of Eber-hart and Bolden’s conversations on the phone and in the car and provided the jury with transcripts of these conversations prepared by Agent Foley. The defense offered evidence that on December 15, 1998, the date that Eberhart allegedly sold two kilograms of cocaine to Bolden, Eber-hart was at home — from 2:00 p.m. until midnight — dealing with the aftermath of a residential burglary at his home. Several witnesses testified that Eberhart was at his residence during this time fixing a broken window, speaking with police, and installing burglar bars. This testimony was problematic for the prosecution, because Bolden claimed that Eberhart had sold him drugs on the afternoon of December 15,1998.

At trial, Eberhart made evidentiary objections and requested a number of jury instructions. He made a general objection, which the court overruled, that the government transcripts of the tape recordings were inaccurate. He also objected to the agents’ testimony concerning the recorded conversations between Bolden and Eberhart, claiming they were hearsay.' The court overruled the objection, concluding that the government was offering the statements, not for the truth of the matter asserted, but to explain the course of their investigation.

Eberhart also requested a missing witness instruction, which would have allowed the jury to draw a negative inference based on the government’s decision not to call Bolden. The government objected, arguing that Bolden had pleaded guilty without a plea agreement and that the witness was not particularly within its power to produce. The court refused to give the instruction. Eberhart also sought a Sears instruction, which would have informed the jury that it could not consider Bolden a co-conspirator based on actions he took after December 16,1998, the day he began cooperating with the government. The court refused this request as well, stating, “I’m satisfied [if] the government makes it clear in its argument that it does not regard Bolden as a conspirator after the time of the arrest.” R. 478. The prosecutor responded, ‘Yes, correct.” Id. Defense counsel then stated, “If they make that plain to the jury, I think that goes a long way.” Id. During closing argument, the government did not tell the jury that it should not consider Bolden a conspirator after the time of his arrest.

On April 3, 2002, the jury convicted Eberhart of conspiring to distribute or possess more than five kilograms of cocaine but acquitted him of distributing cocaine. On May 15, 2002, Eberhart filed a motion for a new trial, arguing, among other things, that one of the transcripts of the tape recordings, Transcript 7A, wrongly indicated that Eberhart requested to meet Bolden “face to face.” In a supplemental brief filed on October 30, 2002, Eberhart also argued that the district court erred by allowing Agent Foley to testify about his conversations with Bolden and by not instructing the jury that a buyer-seller relationship cannot form the basis of a conspiracy conviction.

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United States v. Eberhart, Ivan, 467 F.3d 659, 71 Fed. R. Serv. 798, 2006 U.S. App. LEXIS 27053, 2006 WL 3079110 (7th Cir. 2006).

467 F.3d 659 (United States v. Eberhart, Ivan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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