United States v. Robert Simpson

479 F.3d 492, 2007 U.S. App. LEXIS 5756, 2007 WL 738965
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 13, 2007
Docket05-2993
StatusPublished
Cited by77 cases

This text of 479 F.3d 492 (United States v. Robert Simpson) 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. Robert Simpson, 479 F.3d 492, 2007 U.S. App. LEXIS 5756, 2007 WL 738965 (7th Cir. 2007).

Opinions

WILLIAMS, Circuit Judge.

After his first trial ended in a hung jury, the government retried Robert Simpson for a single delivery of crack cocaine. Al[494]*494though on trial only for a single sale, the jury heard evidence concerning Simpson’s involvement in prior unrelated crack cocaine transactions. The prosecution repeated this evidence during its closing argument and also said Simpson had told a law enforcement agent he was a crack dealer and could have done the delivery at issue, but that he did not remember whether he had. Over defense counsel’s objection, the prosecution then told the jury that the inference to be drawn from these statements was that Simpson had done so many crack cocaine deals that he could not remember the deal for which he was on trial. This argument, and the evidence on which it was based, improperly appealed to Simpson’s propensity to deal in crack cocaine. Because we are not assured that Simpson received a fair trial, we vacate Simpson’s conviction and remand his case for a new trial.

I. BACKGROUND

A federal grand jury returned a single-count indictment against Robert Simpson. This indictment charged Simpson with distributing over 50 grams of a mixture containing cocaine base on March 6, 2003, in Joliet, Illinois. Before his first trial, Simpson filed a motion in limine to bar evidence of his other bad acts, arguing that such evidence is not admissible to prove a defendant’s propensity to commit a crime. As the government represented that it had no intention of eliciting testimony regarding Simpson’s prior bad acts, the district court did not enter a ruling on the motion. The first trial ended in a mistrial after the jury was unable to reach a verdict.

The case was subsequently retried before a second jury. During the second trial, the government introduced evidence that on March 6, 2003, law enforcement officials met with confidential informant Emmanuel Bradley and directed him to buy 2 and 1/4 ounces of crack cocaine that day. Around 3:20 that afternoon, a white minivan, later determined to be registered to Simpson’s wife, pulled into a small parking area behind 402 North Center Street in Joliet, Illinois where Simpson’s sister lived. FBI Agent Mike Brown testified that he saw the minivan driver get into Bradley’s car. However, Agent Brown could not identify the minivan driver as Simpson. Agent Brown subsequently recovered from Bradley a digital tape recorder, a plastic bag containing 61.5 grams of cocaine base, and $100 of the $1600 in buy money provided to Bradley. Agent Brown also testified that he saw Bradley make a number of telephone calls that day, including one to a telephone number belonging to Simpson; he also saw Bradley receive a phone call from that same number a short time later.

Although Bradley had testified at the first trial and identified Simpson as the person from whom he bought crack cocaine on March 6, Bradley did not testify during the second trial. Agent Brown also did not identify Simpson as the minivan driver. Instead, the government presented Deputy Jim Stadt of the Will County Sheriffs Office as the only eyewitness to identify Simpson. Deputy Stadt testified that while using binoculars from about 75-100 yards away, he saw a person arrive in a minivan, enter Bradley’s car for a minute or two, and then leave the car. While conducting this surveillance, Deputy Stadt did not know the name of the person he saw leave the minivan. After he returned to his office, he viewed a photograph of a person identified to him as Robert Simpson and concluded that Simpson was the person he had observed leaving the minivan.

Law enforcement officials waited over a year before arresting Simpson. FBI [495]*495Agent Christopher Hendon effected the arrest and told the jury that on March 9, 2004, he went to Simpson’s sister’s home looking for Simpson. Simpson was not present, and Agent Hendon left his business card with contact information. About forty-five minutes later, Simpson called, and, after Agent Hendon informed Simpson there was a warrant for his arrest, Simpson agreed to meet him. Simpson was placed under arrest and received Miranda warnings. Agent Hendon testified that during the subsequent interview, after Simpson had been informed of the charge against him, “Simpson told us ... although he didn’t specifically, according to what he told us, remember delivering this 2 1/4 ounce of crack cocaine amount, that it was possible because he had done similar type[s] of transactions and delivered for an individual that he primarily dealt with by the name of Michael Hatton.”

Agent Hendon also testified that Simpson told him he had been a crack cocaine dealer for three to four years and purchased half an ounce of crack cocaine from Hatton approximately every two or three weeks. He would then break it up into smaller quantities to sell. When asked what Simpson said about 2 and 1/4 ounce quantities of crack cocaine, Hendon testified that Simpson “stated he had made similar types of deliveries on behalf of Mr. Hatton in exchange for being paid in crack cocaine but that he did not specifically remember this transaction he was being asked about during the interview.” Agent Hendon did not ask Simpson to read or verify the notes he took of their conversation, stating that the FBI did not take written statements from suspects if an agent believed the subject had been less than candid.

About two days later, Agent Hendon was asked to listen to a tape recording of the March 6, 2003 controlled purchase made using the digital recorder worn by Bradley. Agent Hendon concluded that the voice on the recording “seemed” to be that of Simpson. He acknowledged at trial that he was not an expert in voice identification, and the prosecution did not tender him as such. The jury heard the tape recording and received a transcript of the recording. No physical evidence tying Simpson to the transaction was introduced.

After the jurors had heard all the evidence, the prosecution argued to the jury in its closing argument, “And you know what the defendant told him: Yes, I’m a crack dealer. I’ve been a crack dealer for three to four years, and I could have done this transaction, 2 1/4 ounces, on behalf of Michael Hatton, but I don’t remember, because my view of the inference, the inference being — ”. At this point, defense counsel objected. The objection was overruled, and the prosecutor continued: “The inference being he’s done so many that he couldn’t remember this one.”

The jurors submitted to the judge several questions about the evidence presented. In particular, the jurors asked why Bradley (the confidential informant) had not testified, whether any fingerprints had been lifted from the bag of cocaine, whether any voice recognition techniques had been conducted on the tape recording, and whether transcripts of Deputy Stadt’s testimony and an FBI report were available to them. At the close of their deliberations, the jurors returned a guilty verdict on the sole count in the indictment. Simpson received a sentence of 188 months’ imprisonment and five years’ supervised release, and he now appeals.

II. ANALYSIS

Simpson was tried only for making a single delivery of cocaine base on March 6, 2003. He was not charged with partic[496]*496ipation in a conspiracy to distribute illegal drugs. And he was not charged with distribution of cocaine base on any occasion other than March 6, 2008.

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Bluebook (online)
479 F.3d 492, 2007 U.S. App. LEXIS 5756, 2007 WL 738965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-simpson-ca7-2007.