United States v. Hull

74 F. App'x 615
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 12, 2003
DocketNo. 01-2904
StatusPublished

This text of 74 F. App'x 615 (United States v. Hull) 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. Hull, 74 F. App'x 615 (7th Cir. 2003).

Opinion

ORDER

Marcus Hull was convicted of conspiracy to possess and distribute crack cocaine, and possession and distribution of crack cocaine. On appeal, Hull challenges the district court’s admission of certain testimony and audio tapes, its jury instructions regarding the quantity and type of drug involved in the offense, and several of the court’s sentencing determinations. Because we find that the district court did not err in any of its decisions, we affirm Hull’s convictions and sentence.

I. BACKGROUND

Marcus Hull and his wife, Ama Opong Duah, were drug dealers in Gary, Indiana. The FBI used an informant, Lashandra Valladares, to set up controlled buys from Hull. During these controlled buys, the informant entered Hull’s vehicle to purchase the drugs or went to Hull’s apartment to receive the drugs from Hull or Duah through an apartment window. The [618]*618buys were scheduled during telephone conversations recorded by FBI Special Agent Bradley Bookwalter, and the sales were observed and monitored by Bookwalter and Indiana police officers.

After leaving the apartment that he and Duah rented, Hull was arrested when he arrived for one of the controlled buys. Believing Hull had swallowed the drugs intended for the transaction, the officers took him to a hospital emergency room, where they found 3.6 grams of crack cocaine in his hand when he unclenched his fists. Following his arrest, Hull denied living at the apartment and that there were drugs in the apartment. However, he admitted that his two children lived there and that he had a loaded shotgun in the residence to protect them. During a search of the apartment, the agents seized 27 grams of crack cocaine, a phone bill for the cellular phone that the informant had called, a receipt for Hull’s vehicle, $18,000 in U.S. currency, a loaded pistol-grip shotgun above the bedroom door, a box of ammunition in the living room, and paraphernalia used by Hull to distribute the drugs.

At trial, the FBI informant did not testify about the controlled buys. Instead, Agent Bookwalter testified about his observations of the transactions, including the informant’s shouts of “C” or “Coolie” when arriving at the apartment to purchase the drugs, and the tape recordings of the telephone conversations were offered into evidence. Hull’s wife (who had pled guilty and agreed to cooperate with the government in exchange for a “time served” sentence) also testified against Hull. She acknowledged that Hull was known as “C” and “Coolie,” admitted that she and Hull had sold drugs together for over a year and provided information about the typical quantities of their drug sales. She also testified that, with Hull’s knowledge and assent, she had filed a false claim to recover the $18,000 seized during the apartment search,1 and at Hull’s direction had claimed full responsibility for the drugs in an effort to shield Hull from liability at trial or sentencing.

Hull represented himself for a significant portion of the trial and made few legitimate objections, even when prompted by the district judge. On appeal, he now challenges the introduction of much of Agent Bookwalter’s testimony as hearsay, and the introduction of the audiotapes, which he claims were not authenticated. Hull did not make these objections at trial, though he did assert that he was not the person speaking with the informant on one of the tapes. Hull also challenges several of the district court’s sentencing decisions, arguing that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the drug quantity calculation was erroneous, his sentence was improperly enhanced for obstruction of justice and possession of a firearm, and the court provided inadequate reasons for sentencing him at the top end of the sentencing range.

II. ANALYSIS

A. Agent’s Testimony and the Controlled Buys

Hull argues that the district court abused its discretion by permitting the government to prove its case by relying on hearsay statements of the absent informant.2 We review a district court’s [619]*619decision to admit evidence for an abuse of discretion if a defendant has objected at trial. United States v. Bonner, 302 F.3d 776, 780 (7th Cir.2002); United States v. Montani, 204 F.3d 761, 765 (7th Cir.2000). When the defendant fails to make any objection, or when the objection does not fairly raise the issue claimed on appeal, United States v. Robinson, 177 F.3d 643, 646-47 (7th Cir.1999), the point is forfeited and the defendant may prevail on appeal only upon a showing of plain error. Bonner, 302 F.3d at 780; United States v. Curtis, 280 F.3d 798, 801 (7th Cir.2002). Here, Hull did not object to this testimony at trial, even when he was represented by counsel,3 so our review is for plain error.

“A plain error is one that results in an actual miscarriage of justice, which implies that the defendant probably would not have been convicted but for the erroneously admitted evidence.” United States v. Nolan, 910 F.2d 1553, 1561 (7th Cir.1990) (citation and quotation marks omitted). The defendant must demonstrate that the plain error affected his substantial rights as well as “the fairness, integrity or public reputation of judicial proceedings.” United States v. McGill, 32 F.3d 1138, 1142 (7th Cir.1994). We will reverse for plain error only when “convinced it is necessary to avert an actual miscarriage of justice.” United States v. Maholias, 985 F.2d 869, 877 (7th Cir.1993).

Hull contends that the district court improperly admitted hearsay by allowing Agent Bookwalter to testify that during the controlled buys the informant called out “C” or “Coolie,” to which a person (later identified as Hull) responded.4 Federal Rule of Evidence 801 defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted. Agent Bookwalter’s testimony about what the informant said during the controlled buys was not hearsay because it was not offered for the truth of the matter asserted (that it was “C” or “Coolie” who was being called). Rather, it was offered as a contextual description of events, including the words that were spoken, that Agent Bookwalter personally observed while monitoring the controlled buys. Even if we considered Agent Bookwalter’s testimony to be hearsay, however, there would be no plain error, because there was substantial evidence that sufficiently sup[620]*620ported Hull’s conviction. Hull was arrested during one of the controlled buys with a significant amount of crack cocaine on his person, and his wife testified that she and Hull had transacted the sales in question and had sold large quantities of crack cocaine for more than a year. Accordingly, any error in the introduction of Agent Bookwalter’s testimony does not warrant reversal.

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530 U.S. 466 (Supreme Court, 2000)
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United States v. Granvel E. Windom
19 F.3d 1190 (Seventh Circuit, 1994)
United States v. Samuel H. South
28 F.3d 619 (Seventh Circuit, 1994)
United States v. Jarrett E. McGill
32 F.3d 1138 (Seventh Circuit, 1994)
United States v. Christopher A. Burns
128 F.3d 553 (Seventh Circuit, 1997)
United States v. Jimale L. Williams
133 F.3d 1048 (Seventh Circuit, 1998)
United States v. Jamel Robinson
177 F.3d 643 (Seventh Circuit, 1999)
United States v. John J. Montani
204 F.3d 761 (Seventh Circuit, 2000)

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Bluebook (online)
74 F. App'x 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hull-ca7-2003.