Argued September 17, 2013
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 401 -- James B. Zagel, Judge.
For United States of America, Plaintiff - Appellee: Mark E. Schneider, Attorney, Office of The United States Attorney, Chicago, IL.
For Dwayne Garrett, Defendant - Appellant: Andrea Elizabeth Gambino, Attorney, Gambino & Associates, Chicago, IL.
Before WILLIAMS, SYKES, and TINDER, Circuit Judges.
Williams, Circuit Judge
Dwayne Garrett was found guilty of possessing with
intent to distribute 50 or more grams of crack cocaine and sentenced to 190
months in prison. He appeals both his conviction and sentence.
We reject Garrett's argument that the district court erred in denying his motion to suppress alleged post-arrest statements and information recovered from the search of his cell phone. He claims that the post-arrest statements were inadmissible, but phone calls intercepted by law enforcement officials, eyewitness testimony, and the recovery of a large amount of money and drugs establish that officers had probable cause to arrest him. Garrett also contends that law enforcement officials did not have his consent to search the contents of his phone, but the district court reasonably found that Garrett consented to the phone search and properly denied his motion to suppress.
Garrett's argument that it was error to allow the investigating agent to testify as an expert in the drug trade also fails because the judge did not permit the parties to refer to the officer as an expert before the jury. In addition, he cannot prevail on his assertion that the court erred by instructing the jury not to consider Garrett's potential punishment because the court did not misstate the law or mislead the jury in understanding its role. Similarly, his attack on the jury's special verdict form also fails because the use of the outdated form did not prejudice him since he received the benefit of the Fair Sentencing Act's reduced penalties at sentencing.
However, we do agree with Garrett's argument that the district court erred in calculating the appropriate Guidelines range for Garrett's drug offense because the court did not clearly state the drug quantity that it found attributable to Garrett or adequately indicate the evidence it found reliable in determining his relevant conduct.
For these reasons, we affirm Garrett's conviction, but vacate his sentence and remand for resentencing.
As part of a drug investigation that began in April 2007, federal law enforcement officials from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) tracked the drug activities of Isaiah Hicks. These activities led them to the defendant, Dwayne Garrett, who, during an intercepted phone call on March 2, 2008, ordered a " nine," meaning nine ounces of crack cocaine, that was " all the way dry." Based on this conversation, the agents expected the exchange to occur the following day. ATF agents also received a tip that a drug transaction involving a purple Chrysler Concorde was going to take place in the parking lot of a pizza restaurant on Chicago's South Side.
The next day, in addition to continuing to intercept phone calls between Garrett and Hicks, ATF agents and officers from the Cook County Sheriff's Police Department (" CCSPD" ) staked out the pizza place and surrounding area. Garrett made another call to Hicks to confirm that he was on his way to " the restaurant" and " ready for him." Garrett pulled into the parking lot of the pizza place with his codefendant, Patrick Jones, in Garrett's purple Chrysler Concorde. After a detour and another call to Hicks, Garrett and Jones returned to the parking lot where ATF Special Agent Jeffrey Sisto saw another man enter the backseat of the car, hand a plastic bag to Garrett and Jones, and leave. About one minute later, Hicks called Garrett to ask if he was pleased
with the drugs and Garrett indicated that he was.
Garrett drove away from the restaurant, eventually pulled over, and let Jones out. At that point, two CCSPD officers, who had been following Garrett, approached his car, searched him, and found about $1,100 in cash and a cell phone. They also found another phone in the car's console. Meanwhile, ATF Special Agents Hamilton Beal and Lee Casa followed Jones, donning gear marked " police." Agent Beal testified that once Jones realized agents were pursuing him, Jones ran down an alley and threw several plastic baggies containing a white substance into the backyard of a house. After catching Jones, the agents recovered three plastic bags of crack cocaine from the backyard of that house and arrested both Jones and Garrett. According to Agent Beal, he advised Garrett of his Miranda rights en route to the Maywood Sheriff's Office. Agent Labno indicated that he interviewed Garrett within two hours of his arrest as well as the following day, March 4.
Garrett was indicted, along with more than two dozen co-defendants, and charged with possession with intent to distribute 50 or more grams of crack cocaine and using a cell phone in furtherance of that crime. In pre-trial proceedings, the district court found that there was probable cause to arrest Garrett and denied Garrett's motion to suppress his post-arrest statements made to law enforcement officials on March 3. So at trial, Agent Labno testified that Garrett waived his Miranda rights and admitted that earlier that day Hicks sold him nine ounces of cocaine packaged in four plastic bags. Agent Beal testified that, based on that information, he went back to the house where Jones had tossed the baggies and found a fourth plastic bag containing cocaine. The four baggies contained a total of 241 grams of crack cocaine. Agent Labno also testified that Garrett consented to a search of his cell phone, which contained Hicks's phone number. Although Garrett claimed he did not give consent, the court had previously credited Agent Labno's version of the events, and the government offered this evidence at trial in support of its argument that Garrett used a cell phone to buy drugs from Hicks.
In addition to his lay testimony, the government also sought to have Agent Labno testify as an expert in the field of narcotics. Garrett moved to exclude the expert testimony, but the court denied the motion, finding " nothing about the nature of [Agent Labno's] specific testimony in this case that constitutes opinion evidence that is going to have any bearing on his fact testimony." The court did, however, caution the parties not to refer to Agent Labno as an expert in the presence of the jury, and they complied, only referring to his expert testimony as " opinion" testimony. The judge also referred to Agent Labno's expert testimony as opinion testimony in his instructions to the jury. As a result, Agent Labno was never called an expert in the jury's presence. During the expert portion of his testimony, Agent Labno discussed general terminology and common practices in the crack cocaine drug trade.
At the close of trial, the court instructed the jury not to consider or discuss the sentence that might result from their verdict. The district judge reiterated that, while it was the jury's job to determine whether Garrett was guilty, the question of punishment should be left for his consideration alone. The judge warned the jury not to speculate about the punishment or allow it to enter into its considerations or discussions at any time.
The jury was given a special verdict form with instructions to determine, in addition to the ...