United States v. Hilliard

UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY HILLIARD, Defendant.

Case No. 19 C 7387

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

January 12, 2021

Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Defendant Timothy Hilliard moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 1). For the reasons stated herein, the Court denies the motion. Should Hilliard appeal, the Court finds that a certificate of appealability is not warranted.

I. BACKGROUND

Defendant Timothy Hilliard challenges his criminal conviction for drug trafficking and gun possession based on a series of controlled purchases of heroin and a heroin for guns trade. See United States v. Hilliard, No. 12-CR-970-1 (N.D. Ill. 2014) (Zagel, J.). The transactions involved a Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") undercover officer, a confidential informant, and Hilliard. Unless otherwise indicated, citations in this section correspond with the docket for that criminal case.

On February 13, 2013, the Government indicted Hilliard on ten counts: seven counts of knowingly and intentionally distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Counts One-Seven); one count of knowingly possessing firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Eight); one count of possessing a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Nine); and one count of knowingly possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Ten). (See Indictment, Dkt. No. 22.) In December 2014, a jury convicted Hilliard on Counts Two through Ten. (Order, Dkt. No. 97.) The jury could not reach a verdict on Count One. (Id.) Judge James Zagel sentenced Hilliard to 123 months in prison. (See Judgment, Dkt. No. 131.)

A. The Government's Case-in-Chief

During trial, the parties stipulated that Hilliard's criminal history included two prior convictions: (1) a 1997 conviction in Tennessee for delivery of cocaine; and (2) a 2003 conviction in Illinois for possession of a controlled substance. (12/8/2014 Trial Tr. at 10, Dkt. No. 141.) In its case-in-chief, the Government offered testimony from three ATF special agents: (1) Andy Karceski who testified as an expert in drug trafficking; (2) Chris Labno who testified about his work as an undercover agentgenerally and specifically in this case; and (3) Rene Marano who testified that he assisted with the execution of a search warrant at Hilliard's residence. Hilliard's motion focuses on Labno's testimony.

The Government offered Labno as its only fact witness. (See 12/9/2014 Trial Tr. at 36-38, Dkt. No. 142.) During his testimony, Labno explained that the investigation in this case involved the use of a confidential informant. (Id. at 38.) This informant recorded certain conversations with Hilliard, participated in controlled purchases of narcotics from Hilliard, and introduced Labno, in his undercover capacity, to Hilliard. (Id. at 43.) As Labno understood it, Hilliard and the confidential informant had been friends for several years before the investigation. (Id. at 43.) Labno testified that he instructed the confidential informant to conduct several controlled purchases of heroin from Hilliard and to record as many related conversations with Hilliard as possible. (Id. at 44.)

In total, Labno and the informant conducted six controlled purchases of heroin with Hilliard from March 2012 to September 2012 in Evanston, Illinois. (Id.) In December 2012, Hilliard traded a significant quantity of heroin for eight guns and money. (12/10/2014 Trial Tr. at 198-211, Dkt. No. 143.) After this, police arrested Hilliard and recovered more heroin and a gun fromHilliard's residence during the execution of a search warrant (12/9/2014 Trial Tr. at 46.) Labno testified about his understanding of several recorded conversations with Hilliard, and the Government played the recordings for the jury. (See id. at 52-191; 12/10/2014 Trial Tr. at 198-221.) In these recordings, Hilliard discussed various experiences he had with buying and selling controlled substances, talked about things he had learned while in the drug business, discussed transactions involving controlled substances and firearms, and conducted transactions. (12/9/2014 Trial Tr. at 52-191; 12/10/2014 Trial Tr. at 198-221.)

During cross examination, Hilliard's counsel asked Labno whether there was evidence that Hilliard sold drugs to anyone other than the confidential informant:

Q: Do you have any evidence of any other drug deals from my client to anyone besides the government?

A: I don't — we were unable to, no.

Q: There was no video or any surveillance of my client selling heroin to anybody else, true?

A: That's correct.

(12/10/2014 Trial Tr. at 222.) Later, defense counsel returned to the topic:

Q: All right. In other words, there's a possible, at least on May 31st of 2012, that you were his only customer?

A: That's not my understanding, sir.

Q: Oh, I know it's not your understanding. I asked you whether it was possible.

A: Again, anything is possible, but based - if you're asking what I believe to be the case -

Q: Don't want your opinion.

A: Everything is possible, sir, yes.

Q: I'm not asking for your opinion. But as you sit here today, on May 31st, 2012, you have any facts, any evidence that Mr. Hilliard was selling to anybody but Mr. Romano?

A: Yes, I do.

Q: Tell me.

A: Based on the conversations that he was having with me, the details he was explaining to me, the way he was teaching me to be what he considered a better businessman, a better drug dealer, he talked about selling to other people, he talked about the things he did, he talked about how he operated.

(Id. at 282-83.) Hilliard's counsel continued to ask Labno about the same topic:

Q: You never saw him drive anywhere else to make a delivery of heroin, did you?

A: I believe we followed him on occasion where we did meet him and we believed he was doing a transaction but we weren't able to identify anybody involved.

Q: That's a maybe because I never saw a report -

AUSA: Objection.

The Court: The objection is sustained.

Q: Well, could you indicate the report that you documented that?

A: It wouldn't be my report. I wouldn't be out there because, as the undercover agent, I wouldn't be expected or wanted to be covering surveillance deals because if Mr. Hilliard would see me, it would be -

Q: So it's not in a report?

A: No, sir, it is in the report. My understanding is, it's just not in a report that I authored. It was in a report that another agent authored. I believe, in fact, it was listed as part of one of the stipulations as well.

(Id. at 284-85.)

At this point, Hilliard's counsel requested a sidebar that was not transcribed on the record. (Id. at 285.) After the sidebar, no testimony was stricken, and no additional defense objections are noted on the record. (Id.) Hilliard's counsel continued with Labno's cross examination and asked about his basis to believe that Hilliard engaged in another drug transaction that did not involve the confidential informant and Labno:

Q: You're referring to stipulation number 15, I believe, where it says: "at approximately 6:30 p.m. defendant Timothy Hilliard was parked in a Buick in the area of 8025 Keating Avenue, Skokie, Illinois and talking on his cell phone."

A: Yes sir.

Q: "A short time later he drove, his Buick was parking in a lot behind the building at 8025 Keating." Right?

A: Yes sir.

Q: And that's what you're basing that there might've been another deal?

A: Yes. As I said, we weren't able to identify anything specific or any people involved.

Q: I'm not asking for your opinion. I'm asking, did you see him get out of the car or they saw him get out of the car and deliver a package to anybody? It's not in -

A: No, sir.

(Id. at 285-86.)

Hilliard's counsel also questioned Labno about the confidential informant. When Labno testified about the confidential informant getting a gun for Hilliard—information thatwas not included in Labno's report—Hilliard's counsel impeached Labno:

Q: All right. And he told you he didn't sell guns?

A: That's not what he told me.

Q: What did he tell you?

A: He told me that he had been a middleman involved in providing Mr. Hilliard a firearm in exchange for crack from another individual -

Q: Well, I'm glad you brought that up because you actually debriefed him in March of 2012 and he didn't tell you that at all, did he?

A: No, that's not true.

Q: Well - One moment. (Brief pause). You actually re-interviewed Mr. Romano on December 17th, 2012, right?

A: Yes; that's correct.

Q: All right. And what was the purpose of re-interviewing him in December of 2012

A: Back in March when we began the investigation, Mr. -- the C.I. had advised that he had been involved in obtaining a firearm for Mr. Hilliard. That he had been a middleman and had connected another person who had a gun with Mr. Hilliard who wanted a gun. At that point I documented that he knew that Mr. Hilliard was aware and in possession of a firearm. Subsequent to that, when we recovered the gun from Mr. Hilliard's house I wanted to learn everything I possibly could about who it was who had given him that gun in the beginning, who the C.I. had hooked Mr. Hilliard up with to get that gun. So at that point we wanted to get more information about that gun.

Q: Agent Labno, I'm looking at your report from March 20th of 2012, and nowhere in here does it say that Henry Romano told you he had arranged to get a gun for Mr. Hilliard.

A: No, as I just testified, I said that I documented in the report that he knew that Mr. Hilliard had a firearm and that he knew that he was interested in obtaining more firearms. I didn't document an additional -Q: I heard that. I heard that. But nowhere, and this is an important distinction, nowhere in that report do you actually say that Henry Romano told you that he had middled, or assisted, or in any way that

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