U.S. v. Morris

498 F.3d 634

UNITED STATES of America, Plaintiff-Appellee, v. Denard MORRIS, Defendant-Appellant.

No. 05-4679.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2007.

Decided August 20, 2007.

Rehearing Denied September 25, 2007.

Robert N. Trgovich (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee.

Cameron R. Krieger, John R. Hayes (argued), Latham & Watkins, Chicago, IL, for Defendant-Appellant.

Before POSNER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Denard Morris was convicted on various drug charges, for which he received a typically severe sentence of 262 months' incarceration. His appeal centers on alleged governmental misconduct at the trial. Morris's cousin, Tramayne Peterson, pleaded guilty to Count I of the indictment and testified against Morris as part of a plea bargain with the government. When questioned about his plea deal at trial, Peterson asserted that the mandatory minimum sentence for his plea was 10 years; the prosecutor reinforced this by arguing to the jury on multiple occasions that Peterson could not get less than 10 years. Following Morris's conviction, the government moved under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for Peterson to be sentenced below the mandatory minimum to a 70-month term; the court granted that motion. While we conclude that the prosecutor did commit misconduct by misleading the jury about the plea deal that the government reached with Peterson, this act was not enough to infect the fundamental fairness of the entire proceeding. With the exception of Morris's challenge to the concurrent sentence he received on Count II, which the prosecution agrees is beyond the statutory maximum and must be fixed on remand, all of his other arguments lack merit. Thus, with that minor qualification, we affirm.

I

On August 15, 2003, Tramayne Peterson was looking for a ride to the mall, when Morris, his cousin, pulled up in a white van. Peterson hopped in. A few blocks later, the men drove past Officer George Valdez, Jr., of the East Chicago police force. Officer Valdez recognized Morris, having seen his picture during that day's squad briefing. Knowing there was an active bench warrant for Morris's arrest, Valdez pulled the van over.

According to Peterson's testimony, he had just finished "rolling marijuana" when Officer Valdez pulled behind the van. As Morris stopped the van, he handed Peterson a grey plastic bag and said, "Take this and run." Peterson did and Officer Cima DeVilla gave chase. Although Peterson claimed not to know what was in the bag when his cousin handed it to him, as Peterson ran and jumped a fence, "stuff"—beginning with "a white substance" that he "figured . . . to be cocaine"—began to fall out of the bag. Peterson continued to run as a .45 caliber pistol, baggies of marijuana and cocaine, and an electronic scale all tumbled out behind him. Eventually Peterson dropped the bag. After vaulting over a few more fences, he was apprehended by a third officer, Anton West. Meanwhile, Officer Valdez arrested Morris without incident. No additional drugs, firearms, or other contraband was found on Morris's person or in the van.

Following his arrest, Morris was indicted on one count of possession of cocaine base in the form of crack with intent to distribute, one count of possession of marijuana with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1), and one count of carrying a firearm during and in relation to a drug crime, in violation of 18 U.S.C. § 924(c). He was convicted of the first two counts after a jury trial and sentenced to 262 months on each count.

II

Morris has taken a kitchen-sink approach to his appeal, raising multiple legal challenges out of a few discrete factual constellations. Two basic claims, however, predominate: insufficiency of the evidence and prosecutorial misconduct. We briefly explain the legal standards that apply before turning to the specifics of his arguments.

Defendants challenging the sufficiency of the evidence supporting their conviction face an extremely high burden. We will reverse "`only if, after viewing all of the evidence in a light most favorable to the government, and drawing all reasonable inferences therefrom, . . . a rational trier of fact could not have found the essential elements of the crime, beyond a reasonable doubt.'" United States v. Moore, 446 F.3d 671, 677 (7th Cir.2006) (quoting United States v. Rivera, 825 F.2d 152, 158-59 (7th Cir.1987)).

Claims of prosecutorial misconduct are also difficult to sustain. When evaluating a claim of prosecutorial misconduct, "the ultimate question [is] `whether the prosecutor['s] comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Swofford v. Dobucki, 137 F.3d 442, 445 (7th Cir.1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation omitted)). In reviewing allegations of improper comments by a prosecutor, this court employs a two-step process. "We first look at the comments in isolation to determine if they were improper." United States v. Castillo, 148 F.3d 770, 775 (7th Cir.1998). Factors the Supreme Court has found helpful in evaluating whether comments were improper include the following:

(1) whether the prosecutor manipulated or misstated the evidence, (2) whether the comments implicated other specific rights of the accused (such as the right to remain silent), (3) whether the comments were invited by or responsive to defense counsel's summation, (4) whether the trial court's instructions ameliorated the harm, (5) whether the evidence weighed heavily against the defendant, and (6) whether the defendant had an opportunity to rebut the prosecutor's comments.

Swofford, 137 F.3d at 444-45 (citing Darden, 477 U.S. at 181-82, 106 S.Ct. 2464). "If we find the comments are proper, the analysis ends. If we find they are improper, we must then examine the comments in light of the record as a whole to determine whether the comments deprived the defendant of a fair trial." Castillo, 148 F.3d at 775.

1. Misleading the jury as to Peterson's sentence

Morris's most substantial allegations center on Peterson's testimony and the government's use of it in its arguments to the jury. He argues that Peterson's testimony was false and misleading based on the following exchange with Assistant U.S. Attorney Robert N. Trgovich, the prosecutor, during direct examination:

Q: What's the government going to do for you under that plea agreement?

A: Just sentence me; they said they was going to make a recommendation to sentence me at the low end of the guidelines.

Q: And what about with respect to Counts Two and Three?

A: They was going to dismiss them.

Q: Do you understand what type of sentence you're looking at under Count One?

A: Yes, sir, I do.

Q: And what is that sentence?

A: Ten years.

Q: And is that a mandatory sentence?

A: Yes, sir.

(Emphasis added.) Peterson reiterated these assertions during cross-examination.

Building on Peterson's statements, AUSA Trgovich affirmatively represented to the jury several times that Peterson would be subject to a mandatory minimum sentence of 10 years. At the beginning of the government's closing statement, he noted that Peterson had signed a plea agreement. He continued,

But what is Tramayne Peterson looking at? And he told you. He's looking at a mandatory minimum sentence, mandatory means common meaning has to be imposed, and minimum means this is the lowest he can get, ten years. So Tramayne Peterson was not given a pass for his testimony. He's not walking away at the end of the day free. He's gotten years.

Trgovich reinforced the notion that the sentence could not be less than 10 years by noting in his closing that "It would be agreed that a ten-year sentence is something. It's not—not facing anything," and in his rebuttal by remarking, "a mandatory sentence of ten years is not a great deal."

In fact, contrary to AUSA Trgovich's statements, there was nothing immutable about the 10-year term reflected in Peterson's plea agreement. As any prosecutor well knows, the government has the power to move for a reduction below the statutory minimum. And that is what it did. At Peterson's sentencing hearing, AUSA Trgovich himself joined in a motion requesting the court to give a sentence below the mandatory minimum based on the substantial assistance that Peterson had rendered to the government. See U.S.S.G. § 5K1.1 ("Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines."). The court accepted the government's motion and calculated a new guideline range of 70 to 87 months. The court then sentenced Peterson to 70 months in prison, four years and two months shorter than the "mandatory" length the prosecutor had stressed at Morris's trial.

Morris finds three separate reasons why this course of events entitles him to a reversal of his conviction. First, he claims that the AUSA improperly bolstered Peterson's testimony, by giving the jury the erroneous impression that Peterson no longer had a motive to lie. Second, Morris argues that the prosecutor's failure to disclose the government's intention to request a sentence below 10 years violated his Sixth Amendment rights by depriving him of the opportunity to impeach Peterson's testimony fully. Finally, he argues that if Peterson's testimony had been presented in the proper light, the jury would have discounted it so thoroughly that the remaining evidence would have been insufficient to convict.

We agree with Morris that AUSA Trgovich's comments amounted to prosecutorial misconduct. Although the government argues to this court that its comments at trial were meant only to suggest that Peterson thought that he was facing an...