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United States v. Hilliard

United States Court of Appeals, Seventh Circuit

March 24, 2017

United States of America, Plaintiff-Appellee,
Timothy Hilliard, Defendant-Appellant.

          Argued February 16, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 970 - James B. Zagel, Judge.

          Before Flaum, Manion, and Kanne, Circuit Judges.

          Flaum, Circuit Judge.

          Following a sting operation, Timothy Hilliard was charged with ten counts relating to numerous controlled sales of heroin, a heroin-for-guns trade, and a gun and heroin found during the execution of a search warrant at his home. At trial, Hilliard asserted an entrapment defense; the jury ultimately found Hilliard guilty on nine of the ten counts but was unable to reach a verdict on the first count. Hilliard now appeals, asking that we vacate his conviction and sentence and remand for a new trial on the basis of allegedly inappropriate testimony by a government witness at trial, as well as inadequate jury instructions on entrapment. For the reasons that follow, we affirm.

         I. Background

         In 2012, Special Agent Chris Labno of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and confidential informant Henry "Hank" Romano[1] made six controlled purchases of heroin from Hilliard. Romano and Hilliard had been friends for several years prior to the investigation, and had used and distributed cocaine together in the 1990s. Romano had introduced Labno, who was undercover as Romano's "cousin, " to Hilliard. Prior to each transaction, Labno gave Romano an audio- or video-recording device to wear, and surveillance officers were always present.[2] Labno and Romano also recorded some additional meetings with Hilliard. In December 2012, after Hilliard traded a significant quantity of heroin for eight guns and a sum of cash, Hilliard was arrested. Shortly thereafter, law-enforcement officials recovered additional heroin and a gun from Hilliard's residence during the execution of a search warrant.

         Based on the above, Hilliard was charged in a ten-count indictment. The controlled purchases of heroin were charged in Counts One through Seven as violations of 21 U.S.C. § 841(a)(1). The heroin-for-guns trade was charged in Count Eight as a violation of 18 U.S.C. § 924(c). Hilliard's possession of the heroin and gun recovered during the search warrant were respectively charged in Count Nine as a violation of 21 U.S.C. § 841(a)(1) and in Count Ten as a violation of 18 U.S.C. § 922(g).

         A. Hilliard's Trial

         The parties stipulated at the start of trial that Hilliard's criminal history included two prior convictions: (1) a 1997 conviction in Tennessee for delivery of cocaine, and (2) a 2002 conviction in Illinois for possession of a controlled substance.

         Three ATF agents testified at trial. ATF Special Agent Andy Karceski had not been personally involved in Hilliard's investigation or case, and testified as an expert in drug trafficking on topics including: the typical quantities of heroin involved in personal use and distribution, the manner in which heroin is purchased and sold throughout the typical distribution chain, and drug dealers' tactics to evade law-enforcement detection (e.g., using coded words and having legitimate day jobs). Agent Karceski also explained that law-enforcement agents commonly use informants to secure introductions to wholesale drug traffickers, who otherwise would be leery about selling narcotics to new customers. He testified that law-enforcement officials monitor informants as closely as possible, often using recording devices or debriefs, but that it is not feasible to record or write reports on every conversation or interaction involving informants.

         During Agent Labno's testimony about his work on the case, the government published the recordings made of Hilliard during the investigation, [3] and Labno explained his understanding of the conversations. For example, during the controlled purchase that took place on April 5, 2012, Hilliard had mentioned his customers: "[L]ast time I had some, some off-white shit ..., the footers likin' it but the shooters didn't." Agent Labno had understood Hilliard to be referring to his customers' responses to a prior batch of heroin.

         On May 22, 2012, Agent Labno and Romano had met with Hilliard at a bar in Evanston to discuss the exchange of guns for heroin. During that meeting, Hilliard had explained how to run a drug business:

Well, just gonna give you a little lesson in, since you, you know, you fuckin' around. Only fuck with the people you fuck with cause when you go out, you fuck with other motha fuckers, you put yourself at risk, first of all... . Second of all, you never know the quality ....

         Agent Labno had understood Hilliard to be trying to teach Labno about dealing only with trusted suppliers because of the risks that could arise from shopping around. Hilliard had continued:

Get caught up .... I learned the hard way, when my guys don't have shit dude, I'll sit ... .I'll wait... .Never let motha fuckers rush you, man ... .That's how you get ... fucked up, bro .... I mean, the guys I'm fuckin' with dude, pretty, pretty nice, pretty, respectful loyal, motha fuckers are business men [sic], you know what I'm sayin' .... [N]ot all money ain't good money, man.

         Agent Labno explained that he had understood Hilliard to be saying that when his regular supplier was out of heroin, Hilliard would simply wait until his trusted supplier was ready rather than looking for another source.

         Hilliard had further explained to Agent Labno the importance of controlling addicted customers:

[Y]ou're playin' with opium dude, you're dealin' with a different product then. When you're dealin' with highly, cause they need it, cause the[y're] sick ... .But that's why you always gotta fuckin', you gotta, you gotta know how to run your shit. Keep the number, change it on the[ir] motha fuckin ass, man .... [Y]ou in control, bro, but if you start lettin' them motha fuckers control you, dog ... [y]ou're in fuckin' trouble man ....

         Hilliard had also discussed interactions with law-enforcement officials: "Once they're onto you dude, you gotta stop ... . (unintelligible) [H]ey, anybody say somethin' 'bout me and I hear, I see the police, nuh, I don't sell shit... .That's how I do it, cause they gonna watch you, you know what I'm sayin'." Agent Labno had understood this to mean that Milliard would stop selling drugs as soon as he believed he was on the radar of law-enforcement officers.

         Further, in a recording from the day of his arrest, Hilliard had referenced his prior conviction in Tennessee and the lessons he had learned from it:

The only thing about Indiana, or talkin' like rural uh, states. You get caught, you, they gonna hide you ... .You won't see [daylight] ... .You see what happened to me in Tennessee [referring to 1997 conviction] ... .Yeah, you, you can ball, you can ball til you fall but if you get caught, that's it ... .You gotta remember in Tennessee though, informants get paid, crackheads get paid to snitch ... .The only thing good about here is, you know what I'm sayin', in other states, you know, they can't do that entrapment shit here, you, you will beat that shit. But them other states, that entrapment shit is, they can do it all day. They can like actually set you up, you will still get fucked up. Here, you will beat that shit like a motha fucker.

         Agent Labno had understood Hilliard to be discussing (ironically enough) a mistaken impression that Illinois law-enforcement officers could not employ sting operations to arrest targets.

         On cross-examination, Hilliard's defense counsel emphasized Hilliard's and Romano's long friendship and the fact that Agent Labno did not know what had been said between Hilliard and Romano in unrecorded conversations either outside Labno's presence or prior to the start of the investigation. Agent Labno acknowledged that he was not aware of Milliard's having sold drugs between 2007 and 2011, even though Romano had been cooperating with the government since 2007.

         Defense counsel also asked Agent Labno about uncharged drug transactions-that is, whether there was evidence that Hilliard had sold drugs to anyone other than Romano and Labno:

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.

         Defense counsel later returned to the topic of uncharged drug dealing by Hilliard:

Q: All right. In other words, there's a possible, at least on May 31st of 2012 [the date of a controlled purchase of heroin by the informant and Agent Labno], 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.
Q: All right. Well, he could've been reaching back in his experience from 2001 when he was dealing cocaine. It's not that hard to talk with a drug dealer, someone who's been in the business, is it?
A: Well, that's correct, but cocaine is different than heroin.
Q: That's all I'm asking, yes or no. But you conducted some surveillance during these 9 months. Every time you did a deal, you had cars ...

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