United States v. Hilliard

851 F.3d 768, 102 Fed. R. Serv. 1277, 2017 WL 1101088, 2017 U.S. App. LEXIS 5195
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 24, 2017
DocketNo. 16-1249
StatusPublished
Cited by24 cases

This text of 851 F.3d 768 (United States v. Hilliard) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hilliard, 851 F.3d 768, 102 Fed. R. Serv. 1277, 2017 WL 1101088, 2017 U.S. App. LEXIS 5195 (7th Cir. 2017).

Opinion

FLAUM, Circuit Judge.

Following a sting operation, Timothy Hilliard was charged with ten counts relating to numerous controlled sales of heroin, a heroin-for-guns trade, and a gun ■ and heroin found during the execution of a search warrant at his home. At trial, Hilli-ard asserted an entrapment defense; the jury ultimately found Hilliard guilty on nine of the ten counts but was unable to reach a verdict on the first count. Hilliard now appeals, asking that we vacate his conviction and sentence and remand for a new trial on the basis of allegedly inappropriate testimony by a government witness at trial, as well as inadequate jury instructions on entrapment. For the reasons that follow, we affirm.

I. Background

In 2012, Special Agent Chris Labno of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and confidential informant Henry “Hank” Romano1 made six con[772]*772trolled purchases of heroin from Hilliard. Romano and Hilliard had been friends for several years prior to the investigation, and had used and distributed cocaine together in the 1990s. Romano had introduced Labno, who was undercover as Romano’s “cousin,” to Hilliard. Prior to each transaction, Labno gave Romano an audio- or video-recording device to wear, and surveillance officers were always present.2 Labno and Romano also recorded some additional meetings with Hilliard. In December 2012, after Hilliard traded a significant quantity of heroin for eight guns and a sum of cash, Hilliard was arrested. Shortly thereafter, law-enforcement officials recovered additional heroin and a gun from Hilliard’s residence during the execution of a search warrant.

Based on the above, ■ Hilliard was charged in a ten-count indictment. The controlled -purchases of heroin were charged in Counts One through Seven as violations of 21 U.S.C. § 841(a)(1). The heroin-for-guns trade was charged in Count Eight as a violation of 18 U.S.C. § 924(c). Hilliard’s possession of the heroin and gun recovered during the search warrant were respectively charged in Count Nine as a violation of 21 U.S.C. § 841(a)(1) and in Count Ten as a violation of 18 U.S.C. § 922(g).

A. Hilliard’s Trial

The parties stipulated at the start of trial that Hilliard’s criminal history included two prior convictions: (1) a 1997 conviction in Tennessee for delivery of cocaine, and (2) a 2002 conviction in Illinois for possession of a controlled substance.

Three ATF agents testified at trial. ATF Special Agent Andy Kareeski had not been personally involved in Hilliard’s investigation or ease, and testified as an expert in drug trafficking on topics including: the typical quantities of heroin involved in personal use and distribution, the manner in which heroin is purchased and sold throughout the typical distribution chain, and drug dealers’ tactics to evade law-enforcement detection (e.g., using coded words and having legitimate day jobs). Agent Kareeski also explained that law-enforcement agents commonly use informants to secure introductions to wholesale drug traffickers, who otherwise would be leery about selling narcotics to new customers. He testified that law-enforcement officials monitor informants as closely as possible, often using recording devices or debriefs, but that it is not feasible to record or write reports on every conversation or interaction involving informants.

During Agent Labno’s testimony about his work on the case, the government published the recordings made of Hilliard during the investigation,3 and Labno explained his understanding of the conversations. For example, during the controlled purchase that took place on April 5, 2012, Hilliard had mentioned his customers: “[L]ast time I had some, some off-white shit ..., the tooters likin’ it but the shooters didn’t.” Agent Labno had understood Hilliard to be referring to his customers’ responses to a prior batch of heroin.

[773]*773On May 22, 2012, Agent Labno and Romano had met with Hilliard at a bar in Evanston to discuss the exchange of guns for heroin. During that meeting, Hilliard had explained how to run a drug business:

Well, just gonna give you a little lesson in, since you, you know, you fuckin’ around. Only fuck with the people you fuck with cause when you go out, you fuck with other motha fuckers, you put yourself at risk, first of all.... Second of all, you never know the quality....

Agent Labno had understood Hilliard to be trying to teach Labno about dealing only with trusted suppliers because of the risks that could arise from shopping around. Hilliard had continued:

Get caught up.... I learned the hard way, when my guys don’t have shit dude, I’ll sit.... I’ll wait.... Never let motha fuckers rush you, man.... That’s how you get ... fucked up, bro.... I mean, the guys I’m fuckin’ with dude, pretty, pretty nice, pretty, respectful loyal, mo-tha fuckers are business men [sic], you know what I’m sayin’.:.. [N]ot all money ain’t good money, man.

Agent Labno explained that he had understood Hilliard to be saying that when his regular supplier was out of heroin, Hilliard would simply wait until his trusted supplier was ready rather than looking for another source.

Hilliard had further explained to Agent Labno the importance of controlling addicted customers:

[YJou’re playin’ with opium dude, you’re dealin’ with a different product then. When you’re dealin’ with highly, cause they need it, cause the[yYe] sick.... But that’s why you always gotta fuckin’, you gotta, you gotta know how to run your shit. Keep the number, change it on the[ir] motha fuckin ass, man.... [Y]ou in control, bro, but if you start lettin’ them motha fuckers control you, dog ... [yjou’re in fuckin’ trouble man....

Hilliard had also discussed interactions with law-enforcement officials: “Once they’re onto you dude, you gotta stop.... (unintelligible) [H]ey, anybody say someth-in’ ‘bout me and I hear, I see the police, nuh, I don’t sell shit.... That’s how I do it, cause they gonna watch you, you know what I’m sayin’.” Agent Labno had understood this to mean that Hilliard would stop selling drugs as soon as he believed he was on the radar of law-enforcement officers.

Further, in a recording from the day of his arrest, Hilliard had referenced his pri- or conviction in Tennessee and the lessons he had learned from it:

The only thing about Indiana, or talkin’ like -rural uh, states. You get caught, you, they gonna hide you.... You won’t see [daylight] .... You see what happened to me in Tennessee [referring to 1997 conviction] .... Yeah, you, you can ball, you can ball til you fall but if you get caught, that’s it.... You gotta remember in Tennessee though, informants get paid, erackheads get paid to snitch.... The only thing good about here is, you know what I’m sayin’, in other states, you know, they can’t do that entrapment shit here, you, you will beat that shit. But them other states, that entrapment shit is, they can do it all day.

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Cite This Page — Counsel Stack

Bluebook (online)
851 F.3d 768, 102 Fed. R. Serv. 1277, 2017 WL 1101088, 2017 U.S. App. LEXIS 5195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hilliard-ca7-2017.