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211 F.3d 356 (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT DANIEL WARD and RODNEY ELLIS, DefendantsE L DANIEL WARD and RODNEY ELLIS, Appellants. e n Appellants. Nos. 98-2657 98-2812 6 8 Nos. 98-2657 & 98-2812
In the United States Court of Appeals For the Sev enth Circuit the United States Court n d a Appeals For the Seventh Circuit p s e h u Argued October 27, 1999 Decided April 28, 2000 e Decided April
Appeal Appeals from the United States District Court for the Northern Dist ict of Illinois, Eastern peal peals United States e S District istr Eas rn astern as n D is Division. 73 0--Charles 30 d Material d] Division. No. 95 CR 730--Charles P. Kocoras, Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., FLAUM, and EVANS, Circuit Judges. N HARLINGTON WOOD, H HARLINGTON WOOD, JR., Circuit Judge. O

On June 16, 1997, a multi-co unt second superseding indictment was filed in the 1997 , multi-count 7 co o indic tment was filed in dictm n tmen file led Northern District of Illinois charging Robert Daniel Ward and Rodney Ellis, along with f I llinois charging Robert l h in o and Ro dney Rodney e nine codefendants, for conduct relating to a large-scale drug distribution conspiracy. The r conduct relating u ela ing drug distributio n u ribut on buti he tremendously successful conspiracy was organized and supervised by Nathan "Nate" Hill successful conspiracy sf nspi c pira pervi e v a l supervised b Nathan Hill who began distributing cocaine in the Ch g e Chicago area in the late 1980s. Ward and Ellis were 80s. were r in the late 1 980s. Wa each convicted on two counts of the indictment following a jury trial. On appeal, Ward c ounts o f s indictment following jury ment ollo win wing ury On raises several challenges to his conviction. Ellis also appeals, challenging his sentence. challenges e is c onviction. Ellis also appeals, c ha nging n. llis lso pp als hallengin . s I. BACKGROUND

The Th Hill conspiracy distributed thousands of kilograms of cocaine in the Chicago area y d thou thou ousands e in area a between 1987 and December 1995 . Hill obtained this cocaine from a variety of suppliers. w 5 l c oc aine f ro m ocai aine rom suppliers. ppliers. iers between December 1995. Hill Ward, who was based in Los A ng ard, who base ngeles, o ne on suppliers. ppl s pp Ward, w based Angeles, California, was one of Hill's large-scale suppliers. Ward employed number o f co uriers, Wa employed a number of couriers, some of whom were supervised by Donald Marini mp n couri whom h Donald Marini al a and Cameron Wright, to transport large quantities of cocaine from California to Chicago. Camero n Wright, transport ron ro ht t anspo r o te a to Chic go. Chic o icag quantities H then ac ted Hill then acted as a wholesaler, selling multi-kilogram quantities of cocaine to distributors wholesale lesa les ler, multi-kilog ogram og cocaine t dis ributo s n istribut utor Hill e ac e i in the Chicago area. After several of hi couriers were arrested, Ward began chartering e Chicago area. a l i beg c ha egan hartering eg n several f his couriers Lear jets transport cocaine Le jets to transport c oc aine to Chicago. Between March 1, 1994 and October 7, 1994, for e n ns rt o t 4 and October 7 , 1994 fo to 1994 94, ex am x ample, Ward chart red eigh ard arte d eigh ar char ght Sussex Av ussex s on Va Nuys, ys, ys example, Ward chartered eight trips to Chicago through Sussex Aviation in V an Nuys Van Califo rnia Testi ony was presented at trial that each charter trip involved the fo rnia Testimony o ia. stim n s presented trial that each c harter p sente ted i hat rter rt involv ed the ve h California. Test transportati o f approximat tion approximately fifty kilograms of cocaine. ti imat imately fifty kilo grams coc aine. fift fty lo l s ca e transportation of app Drug trafficking pro vided Hill with sizable profits which he used to purchase homes, king rovi d ki v i profit hich e u trafficking provided Hill with sizable pr ts whic e used o purchase cars, boats, and, eventually, a four-engine JetSta aircraf t. Hill also sought legitimate four-engine JetStar aircraft. Hill also ur-e ur e e Star ra a i lso business opportunities through which he co uld launder his drug proceeds. One of these gh which he c d launder his drug h h der d could aunde businesses was Pocketown Records, a record producing and manufacturing business reco rd d formed in 1993 by Nate Hill and Michael Jefferson. At Hill's direction, Rodney Ellis, a cousin to Hill, participated in the operation of Pocketown Records. Ellis managed Pocketown's daily operations and financial activities. Pocketown's expenses were paid primarily in cash. For example, no salary checks were issued; instead Hill handed out cash payments to Pocketown workers. On several occasions, Ellis transported large amounts of
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cash from Chicago to Pocketown, which was located in New York, and at other times, Ellis received deliveries of cash from other Hill employees. Ellis prepared false records for Pocketown in an attempt to justify the influx of cash to the business. Ellis also provided inaccurate information to the accountant who was preparing Pocketown's 1993 tax returns. Ellis then signed the falsified return and filed it with the IRS. Ellis later became involved in another of Hill's busin ss ventures, the production of a motion picture entitled sine si s entur t h rodu d business v entures, the pro duction "Reasons" which was based on Hill's life story. Ellis played a limited role in the "Reasons" ll's story Ellis played limited ry. ry l s d imit ited Hill's production, unsuccessfully attempting to persuade a recording company to produce the unsucc essf ully attempting t persuade re rding co mpany ucce ess es te t er ad recordi r d d o mpan any soundtrack for the film. he m. m 4 e in al indictment in th c a e was initia m o n December ecemb m 1995. t contained eighteen 9 99 taine e ned The initial indictment in the case was filed on December 13, 1995. It contained eighteen case s counts and named twenty-one defendants. A superseding indictment was filed on October unts unt n am amed wenty-one d i indi ment dict Octo Oc to ber counts and nam twe y one defendants. superseding indic ment 31, 31 1996, and on June 16, 1997, a second, and final, superseding indictment was filed. n June 16 e ng indictment was fil d. g n m w file Ward was charged under Counts One and Four of the second superseding indictment. a a ed under d n ind ment. ndictm nd Ward was Co unt One alleged that Ward was involved in a conspiracy to distribute and to possess with o n lleg s inv o lv ed in co n piracy inv vol d cons and to possess n s h Count One alleged intent to distribute mixtures containing cocaine in violation of 21 U.S.C. sec. 846. Count nt to dist stribute st s c o taining cont violation iolat latio sec . 84 6. ec. ec 4 nt Four charged Ward with a violation of 21 U.S.C. sec. 841(a)(1) based on an alleged charg harged a (a)( ( alleg eged eg 841(a)(1) attempted distribution of approximately nine kilograms of cocaine on or about January p of co cain o cain ine J ua January attempted 21, 1993. 21 199 21 1993. Ellis was charged in Counts Seven and Eight of the second superseding charged arg a second n indi ind ctment. Count Seven charged Ellis together with several codefendants with conspiracy Sev en e codefendants nda d conspiracy spira racy indictment. to defraud the United States, in particular the Internal Revenue Service, in violation of 18 defraud United e Service, i e of 8 U.S.C. sec. 371, while Count Eight charged Ellis and several codefendants with money U. while le l with t y laundering in violation of 18 U.S.C. sec. 1956(h). The case proceeded to a jury trial, and violatio tion C. sec 1956(h). T he ec. 1956(h) 56(h). p proceeded jury r nd both Ward and Ellis were convict on each of the counts against them. Ward was s were convicted vict cted t again g inst Ward was ard sentenced to 360 months imprisonment on each count with the sentences to run months impris o prisonment r with the sentences t sent e t concurrently. Ellis was sentenced to 108 months imprisonment. A timely notice of appeal was sentenc e t 1 08 a nced 0 imprisonme ment. time me t mely appeal ea a was filed in each case, and the cases have been consolidated for appeal. a and e cases have case av d f o r appeal. ppea ppeal. II. ANALYSIS 5 Ward raises several challenges to his conviction, while Ellis challenges the district c hallenges nge g co nv iction, while Ellis ch enges o nvic tion, whil Ellis c hallenge i c co urt's computation of his sentenc e. We address each appellant's argument in turn. f his sentence. We addr s each appellant argument ten e d ant's g m court's address e h A. Robert Daniel Ward Ward 6 Ward challenges the district court's rulings on his speedy trial motion and on several a th court's rulings urt's speedy trial mot peedy rial otion sev eral ve l Ward ev identiary motio n Ward furth r asserts that the district court erroneously limited the v ident enti ions. urthe is s mit mi evidentiary motions. further district limited the scop f his cross-examination of D sc op of his cross-examination o f Do nald Marini and erred in failing to sua sponte recuse ope s- x i and n sponte rec use on e n scope Donald itself. Finally Ward contends that the government committed prejudicial error based on a i ally, d co nt ds tha c ntends hat s government ment error based o n ro ased e Finally, comment made during closing argument. co en n closing closin lo comment made 1. Speedy Trial Motion Speedy Trial Mo tion d ial ia Moti 7 Ward s arrested i Los A ng Wa was arrested in Los Angeles, California on January 11 1996 on charges stemming rrested este ngeles, ary ar 9 charge c h ges mm ch ges stemming January 11, 1996 from a f alse application for a passport. While Ward was in custody on the passport l e pl io r t hile ard e c ust dy usto e passpo rt pas po o false application or passport. While Ward charges, he was separately indicted in the Central District of California for narcotics was sepa sepa parately indicted ly nd e n al Distric t f Calif o nia r narc ri alif alifor i narc rcotics violations based on his distribution of drugs to the Hill conspiracy. On October 11, 1996, a s his distribution f i d ributi n i tion o e Hill c onspiracy p cy cy. ctob o based October criminal complaint was filed in the Northern District of Illinois charging Ward with d in the No ern Dis h Northe istrict f I llinois chargi oi c argi i ging narcotics violations in connection with the Hill c onspirac y. On Oc tober 18, 1996, the connec tio c tion the ll conspiracy. On O l o acy. ac y October narcotics charges pending against Ward in the Central District of California were dismissed Ward n the Ce t l Central after prosecutors received the Illinois complaint and an accompanying bench warrant for Ward's arrest. arrest On October 21, 1996, Ward was sentenced to probation on the passport case. Ward, however, remained in custody in California based on the Illinois complaint and warrant. During November and December 1996, the United States Marshals Service for the
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Northern District of Illinois attempted to obtain custody of Ward through its normal channels. These attempts were complicated due to erroneous information received from the Marshals Service Prisoner Coordination Section that Ward could not be transported to Chicago because there were still charges pending against him in California. On January 7, 1997, Ward was brought before a magistrate judge in the Central District of California for i g whic me ich r ss an out-of-district process hearing at which time Ward asserted his speedy trial concerns. hearing whic h time Ward asserted s objecti ns and stated that Ward wo ul o ectio d te t e a woul uld The magistrate noted Ward's objections and stated that Ward would need to raise them in Distric t o f Illinois follo wing s transf stric ict i l n nsfer. Feb ary 11 , 1997, ebruar r 1 the Northern District of Illinois following his transfer. On February 11, 1997, the Marshals rt n nois a nf me h no f med d was bei g w bein Service in the Northern District o f Illino was inf o rme that Ward was being held in Northern of Illinois as informed that California pending the results o f hi tuberculosis t. Ward s cleared for n g s b o a a California pending the results of his tuberculosis test.1 Ward was cleared fo transportation Chicago on approximately February 2 1997. He arr d in the transpo rtatio n to Chic ago o n app o ximately February 26, 1997. He arrived in the p ion hi o ppro pp x m b ua 26, 9 rrived Northern Distri t I llinois o n No rthern District of Illinois on either March 6 or 7 and made his first appearance before a o rthe hern tric tr l nois made his first appearance bef o e d h firs rst an n efor ef judici ju cial officer on March 13, 1997. On March 27, 1997, Ward filed a motion to dismiss the o n March Mar h filed mo n to dismiss the iled sm s t m judicial indi men , arguin that the delay from the time his California charges were resolved until dictme di ment arguing u w e were resolv ed until olv unti ol til indictment, arguing he was brought before a judicial officer in the Northern District of Illinois violated his was bro ught a r g al o ff icer in the No rthern ffic er h North rthe Illinois violated oi v l i r right to a speedy trial under the Speedy Trial Act, 18 U.S.C. sec. 3161 et seq., the Sixth p pe under th e U .S.C. S.C .C. seq., the q h h right t speedy Amendment, and Federal Rule of Criminal Procedure 48(b). The district court denied ndme al Rule T he h t denied d i Amendment, W Ward's motion. Ward's jury trial began on November 6, 1997. 's s s ju Ward's 9 By its express terms the Speedy Trial Act does not apply in the present case. Under the ms, m present res e Under he d terms, Ac t, the trial of an accused must commence "within seventy days from the filing date (and ct ac c ccused c the e (and n Act, making public) of the information or indictment, or from the date the defendant has ma the h defenda t endan making appeared before a judicial officer of the court in which such charge is pending, whichever judicial u r o f the co urt whic h cour urt hich pending, whichev er n ve date last occurs." 18 U.S.C. sec. 3161(c)(1). Ward challenges only the delay from the time 8 sec . 3161(c)( c )(1). ) challenges on y ge e y f ro m o charges were filed in the Northern District of Illinois until March 13, 1997, the day he first n Northe thern Mar Marc h 13, rch first ir t r appeared before a judicial officer in the Northern District of Illinois. This time period is judicial off ic er in the ud fc h o I llinois. T his ois i outside of the Speedy Trial Act, and bec T Trial Ac t, and because Ward does not allege any improper delay n ecause t allege any im e during the time his Speedy Trial Act clock was running, his Speedy Trial Act claim fails. Spee Trial A ct eedy rial c e a Speedy rial Speedy T rial The Sixth Amendment right to a speedy trial is similar to, but separate from, the right e h trial similar to, but separat rial mila o , u ar rate t Amendment right created by the Speedy Trial Act. United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. T rial Ac t. Act Stat v . Ko ller, 6 F.2d 1408, ates ller le F.2 40 0 States 19 992). Co urt est ished f our-factor balancing test stabli h ur f i es s 1992). The Supreme Court has established a four-factor balancing test to use in determining whether a defendant's Sixth Amendment right to a speedy trial has been de defendant's Six t nt's Six xth speedy ed d viol viola ed. See Doggett v . United States, 505 U.S. 647, 651 (1992); Bark er v. Wingo, 407 olat tates s a k 4 07 violated. v. States, Barker U.S. 5 14, 530-33 (19 1972). 19 i test, ider ethe her trial was r a 514, (1972). Under this test, we must consid "whether delay before trial was this tes consider "whether unco mm comm co mmonly long, ng, criminal rim o blame uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether that delay whether, in due course, the defendant asserted his right to a speedy trial, and lay, her, he co urse, o urse s asse sserted y trial, d r , whether he suffered prejudice as the delay's result." Doggett, 505 U.S. at 651. r suffered prejudic e a the d p j ice h result. ult t." . In det rmining whether the delay was uncommonly long, we must consider the interval eterm i elay ncom omm consider the interv l nsid nsi nterva t determining the delay was unc ommonly be w b tween accusation and trial, here over a year. See Doggett, 505 U.S. at 651. As the c at n U.S. a 651 . S 5 the e between ac c usation and Supreme Court Sup eme Court noted in Doggett, courts have generally found delays approaching one r Doggett, d lays dela appro ac hing e o a ng g Supreme year to be presumptiv ely prejud cia . Id. at 652 n.1. Ho weve War chal ges only the ar to resu u i ejudicial o weve ver, ard al allenges l presumptively prejudicial. However, Ward challenges only the period between the return of the indictment and his first appearance in the Northern between the return the indictment and hi f irst appea ance the No rthe w n e n he tment n m ppear h N thern District of Illinois. Therefore, this factor does not weigh heavily toward either side. With Illinois Theref e this factor ll is T is. efore, i fact ef c no t weigh heav ily to ward either o g av ar ther respect to the second factor, Ward alleges that the delay was the result of a lack of sec ond fac tor, Ward alleges that e delay econ fac r o l a a s the result o f t u diligence on the part of the prosecution. An examination of the record reveals that the pro secutio n. A exam nation the reco rd cuti cutio xami xa on n h reco cord delay resulted from miscommunication and the necessity o f fu miscommunication and he necessity of fulfilling certain prerequisites mun u on n h sity to transfer. Because this equates at the most to negligence on the part of the government, most negligence os s l this factor must "'be weighted less heavily but nevertheless should be considered since the li ibili f h i ih h h h ultimate responsibility for such circumstances must rest with the government rather than with the defendant.'" United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976) (quoting Barker, 407 U.S. at 531); see also Doggett, 505 U.S. at 657 ("To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have
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lasted longer than negligence demonstrably causing such prejudice."). 12 Ward contends that he fulfilled the third prong by asserting his speedy trial concerns immediately upon being brought before the magistrate in California for his out-of-district proceedings and by reasserting these concerns at his initial appearance in the Northern District of Illinois. However, Ward asserted his right to a speedy trial after much of the asserted asserted his right sert i alleged improper delay had occurred. See United States v. Deleon, 710 F.2d 1218, 1222 o c c urred ee U nited States . Deleon, rre red. e d t eleon on, (7th Cir. 1983). Ward knew of the charges against him and wa represe ted by counsel Ward knew f the ch ge against h a was represented ard k t charge ga s him and ges pres presen from the time the California charges were resolved, yet he did nothing to assert his speedy e Califo C fo fornia charg were reso lved yet arges er e s ed e ed, did to assert a trial right until his out-of-district process hearing. This factor does not weigh strongly in tu o ut-of of-district process hear g This factor does no t weig of p e es aring. hi ct ar h t e o igh ig until Ward's favor. Finally , with respec t to the prejudice prong, Ward does not allege that the s f avor Finally, with respect the prejudice pro ng, or. or ll l it t pe h jud e o u does no t allege that n alle llege h delay impaired his ability to pr lay la mp ed bility Instead, War "asserts d asse asser stres ess es delay impaired s abi y to present his defense. Instead, Ward "asserts that the stress and a anxiety of being incarcerated and awaiting transportation to Chicago f ollowing the g incarcerated arcer r hicag o c in anxiety Chicago following he co nc lusio of the California cases in October 1996, were oppressive and increased the o n lusi sion e Ca d increased e cr e r conclusion anxiety and co ncern on his behalf." While this is a proper factor to consider under the x xi behalf . Whil this is proper alf Whil f." ile p consider under e sid i n anxiety a con and concern p udice pro ng, prejudic prong, it is insufficient to tip the scales in Ward's favor. See Jackson, 542 F.2d at udic insufficient to icie t Ward's rd Jackson, 54 2 kson kson, 5 d at prejudice pro 409 (stating that general all gations of anxiety and concern constitute only minimal atin alle n c onstitute o min al inimal l (stating allegations p prejudic e, especially when unenhanced by an impairment in presenting a defense). di when h presenting defense) ese s se). se prejudice, Weig Weigh ng the four factors, we find that Ward's Sixth Amendment right to a speedy trial ighi factors, cto t rig ight ig y trial Weighing was wa not violated. We review the district court's denial of Ward's Federal Rule of Criminal Procedure 48(b) s l P ro cedure 4 8(b) r e ( We district claim for abuse of discretion. Deleon, 710 F.2d at 1223. Under Rule 48(b), "if there is dis iscretion. Deleo n, 7 10 F.2d 1 22 eon, .2d 223. "if there unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, in defend de ndant d the co urt ma h cour urt the indictment, h n information or complaint." Fed. R. Crim. P. 48(b). Rule 48 "is not circumscribed by the mp ed d 8 "is not c irc umsc ribed irc cumsc i e complaint." Fed. Sixth Amendment," Deleon, 710 F.2d at 1223; however, as the Eighth Circuit has " Deleon, 71 0 F. at D 1 s th Eighth ighth h recognized, it is driven "by the same general considerations as the Sixth Amendment." n he sam gen ral ame gene s as e Sixth Sixt x United States v. DeLuna, 763 F.2d 897, 923 (8th Cir. 1985). Inco rporating our analysis na . Inco rporatin c r n DeLuna, 3 F.2d Incorporating above and noting that th there was no evidence of purposeful delay by the prosecution, we was vide rposeful elay sefu e evidence purpo seful dela b the find that the district court did not abuse its discretion in denying Ward's motion to dismiss co urt d not o disc retio n denying Ward' isc tion enyin ying d's d dismiss miss the indictment pursuant to Rule 48(b). See, e.g., United States v. Sears, Roebuck & Co., n ule ee, ee e Uni e ited e ars, , pursuant Rule See, e.g., United States v . Sears In I nc., 877 F.2d 734, 739 (9th Cir. 1989) ("In general dismissal under Rule 48(b) is 3 Cir. 1989) ("I general i 1 9 n Rule Inc., 739 appropriate only where there is delay that is purposeful or oppressive." (internal ap where r dela delay that l oppressive." ve e quot quotations and citatio ns omitted)). o on )). quotations citations omitted)). 2. Evidentiary I ss . Evidentiary Issues ssues 14 W d Ward first challenges lle ges l district istri i admissio n sio wit sse ho itness sses Ward f irst challenge the district court's admission of testimony from two witnesses who were coopera erating with th go vern t govern rnment, d Marini r gard g regarding rdi cooperating with the government, Donald Marini and Cameron Wright, regarding drug inv olv me dr involvement with Ward prior to the charged conspiracy. Marini testified that he nvol nv olvement Ward prior r charged ged testified that stifi fied h b a selling and began selling and transporting drugs for Ward in approximately 1987 and continued to do in n n 7 and continued do n ntin nti began so until he was arrested in 1993. Wright testified that he began purchasing cocaine from until he ntil nt arrested in t purchasing co caine from urch s urchasi c in f n Ward when Wright was still in college and continued to purchase cocaine from Ward after ar Wrig Wright was still in co llege ight a ti till c purchase co ne om u chas cocain s d af ter a Ward his graduati f ro m co llege in 1991. Eventually, Marini became a courier between Ward aduation r duati g 991. ventuall ntua l arin ecame ari r between Ward etw en graduation from c college 1 99 Eventually, Marini becam and the Hill operation in Chicago, and both Marini and Wright sup rv ised couriers for l o peratio erati tion Chic ago, and C c o, , Marini d Wright supe v i d c ouri i i supervised uriers Ward in connection with the Hill conspiracy. Ward objected to the testimony regarding connec t on with e Hill consp necti it t H o spiracy. Ward objected the testimon r je d e h estimony m prior drug transactions between himself and Marini and Ward. The district court transacti tions between himself and Marini d Ward. T he district ti ween hims mse n M ni i r e overruled Ward's objection, finding an inex ricab e link betwe n the testimony and the find finding inextricable k between the n next icabl tween charged offenses and stating that the testimony about prior drug relationships was "highly t the te mony about testimony bo u out relevant and probative." Ward argues that this ruling was erroneous under Rules 403 and 404(b) of the Federal Rules of Evidence 2 We review for abuse of discretion United discretion. Evidence. States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995). Evidence of uncharged criminal activity is admissible if it is "'intricately related to the facts of the case' before the court." United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.
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1995) (quoting United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991)). The admissibility of such evidence is limited only by Rule 403 and is not subject to the limiting requirements of Rule 404(b). Id. at 1102-03. In the present case, the testimony of Marini and Wright was intricately related to the charged conspiracy because it showed how the men s relationship with Ward "began, its basis, and structure, and how the relationship began, men's blossomed into the charged conspirac y " United States v. Zarnes, 33 F.3d 1454, 1469 (7th n p ac acy. Unit ited ates conspiracy." United States v Cir. 1994) (citing United States v. Diaz, 994 F.2d 393, 395 (7th Cir. 1993)). While it was States Diaz, 994 F.2d 393, 5 th Cir. at t Dia 9 d 9 ir. not disputed that Ward knew Marini and Wright, the testimony regarding the prior drug t Ward M ni d rig , h e mo Marini nd Wright, the testimo ny regardin i o egarding egardi transactions was integra to the complete story of the charged conspiracy in that it ral ra c o mplet story f e c harged conspir y i ete or et r rg g spir spiracy integral outlined the development of the relationship of trust between the men which led to their d the develop ent th relation opme op e on o nship o f t be e n e men whic h betwee nw c respec tive roles in the conspiracy. See Diaz, 994 F.2d at 395. Additionally, to further c o o nspira S F2 dd n d furthe h respective roles th co ns ac y. See Diaz, 994 F.2d at 395 Additionally, to f urther minimize the risk of unfair prejudice, the court gave limiting instructions during the inimi mize risk unf air prejudice, isk n air j instruc tions n uc t ucti ng the minimize t testimony of both Marini and Wright, instructing the jury to consider the information m oth Mari t rini consider th info at n nside der nformat ation testimony both Mari regarding the prior activities only as background and with respect to the relationship g ga ding rior the relat onship h lati la ns regarding e prio r whic h existed between the parties. It is clear that the probative value of the testimony hich x d parties. I t c lear that the probative ties s. ar hat p the he which ex isted between o outweighed any potential f o r unfair prejudice. Therefore, the testimony was properly i h d or Therefo re, the o e t s pro erly prop y outweighed any for unfair admitted "without regard to Rule 404(b)'s strictures," Zarnes, 33 F.3d at 1469, and the tt t rd to d Zarnes, 33 e 1469, and th 9 a admitted "without dist ct dis rict court did not abu its discretion in allowing it. buse b district abuse 1 16 W Ward next argues that the district court erred in allowing evidence regarding Ward s use that e regarding Ward's use r rd's rd Ward of false identification in the name of Jeffery Eugene Palmer. Our review is for abuse of f alse n in w is o dis discretion. United States v. Aldaco, 201 F.3d 979, 985 (7th Cir. 2000). While Ward States While hile discretion. contends that the district court failed to meet the requirements for admissibility under district is failed meet the requirements ailed eet requ q admissibility ii r Fed. R. Evid. 404(b) the evidence was not offered under Rule 404(b) but rather as direct b), b evidenc e en n Rule ule rathe ath her 404(b), evidence to support the government's allegations that Ward furthered the conspiracy by t the government's rn n rd f urthered the urthered h h y using aliases. Evidenc e was pres nted at trial that, on Marc h 10, 1995, coconspirator nce resen d c 1 1995 95, Evidence presented at March 10, 1995 , William "Ikey" Hill was identified driving a black van registered to a Jeffery E. Palmer. a tifie i i in ter te ff was identified driving registered o Jef fery Therefore, the false identification evidence was probative in that it showed a link between identificatio n ev idence d ation e t in that it showed show w between e Ward and members of the Hill conspiracy. Furthermore, the district court limited the the ll c onspirac Furthermo re, the d acy. r o re, t district c o urt t information that was admitted to reduce the risk o f unfair prejud ce to Ward. The jury was d d h s nf air r judi W was a admitted the risk of unfair prejudice o Ward. told only that Ward attempted to obtain a passport in the name of Jeffery Eugene Palmer t d n passpo rt in the me o f Jeff ery asspo rt t por e fe Palme mer me attempted to and an was not informed that Ward was arrested for this incident. Under these that d was arrested fo r rre o er these r and circumstances, the probative value of the false identification evidence outweighs any risk ci pro bative value o f the r alue e evidenc e nc c y of unfair prejudice. The district court did not abuse its discretion in admitting the f unf air n T he co urt did o urt d admitting ad evidence, and Ward's claim fails.3 e en rd's d evidence, Ward's 3 Cross-Examination Do nald 3. Cro ss-Examination of Donald Marini os mina min o nald l 17 asserts the dis rict court improperly Ward assert that the district c o urt improperly restricted his defense by limiting the erts er h dist ct rly y limiting the l miti ting e scope sc e his cro ss-examination of gove me witness sc ope of his cross-examination o f go vernment witness Donald Marini. On crosso ation government i vernment cro ssro s o e m ex aminatio n by Ward s counsel, Marini testified that, as a result of his cooperation, federal io o ard' his coo p ratio , federal oope ation feder oo dera examination y Ward's pros c uto helped cle r pro ec uto rs helped to clear a warrant against Marini based on unrelated charges in clea u r unrelated charges e ha prosecutors e Califo r ia state court. Defense counsel then sought to question Marini as to the nature of lifo liforn tate o rt. fe s coun fens questio n Ma uesti stio as the natur ture California state c ourt. Defense co unsel the state charges, attempting to elicit the fact that the charges were based on allegations of char e cha ges, attempting t h te ting the fact tha th charges were t hat the r e w d o n allegations eg spousal and child abuse. The prosecutor objected, and following a sidebar, the court d child ab c l T he prosecut r objected, d fo llowing side e secu secuto d f ow g o debar, the de sustained the objection. The court noted that the information regarding the nature of the obje io n objec tio n. jection. e c ourt noted ourt t t t inform o the in matio n regarding th g ding charges was highly inflammatory and irrelevant to the po being de inflammat atory and irrelevant at el nt point b n developed on crossbeing examination that Marini receiv ed a benef it for his cooperation. We review a district court ived enefit iv n peratio peration. received benefit r his cooperatio n ruling limiting cross-examination for abuse of discretion. Akinrinade, 61 F.3d at 1285. abuse discretion. s As we have noted, "the sufficiency of cross examination turns on whether the jury had noted crosssufficient information to make a discriminating appraisal of the witness' motive and bias." Akinrinade, 61 F.3d at 1285 (internal quotations and citations omitted). Ward argues that the district court's ruling prevented him from inquiring "as to the substantial benefit to Mr. Marini as bearing on bias, motive and credibility." However, the district court allowed
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Ward's counsel to elicit the fact that Marini received a benefit in the form of dismissal of a state warrant in exchange for his cooperation in the federal prosecution. This was sufficient to allow the jury to make a discriminating appraisal of Marini's motive and bias. Moreover, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment prejudice, confusion of the issues, the witness' aras arassment, rejud c conf usio judi nfus harassment, prejudice, co nf usi n safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van repeti ive o r o nly ma petit e ly elev ant." ly rel v an Arsdall, 475 U.S. 673, 679 (1986). The district court did not abuse its discretion in . 67 3, , (1986 T he distric t co urt did no t abuse its di 986). i ic o u d s t prohibiting defense counsel from inquiring into the nature o f the state charges. ns s u un m inquiring into the nature of ir n h a e tate harges. defense counsel state char 4. Rec usal Recusal e al 19 Fo llowing Ward's conviction but prior to sentencing, defense counsel became aware, Ward onviction rd' onvi se c ounsel became aw re, ame am awar Following Ward's convi thro ugh our opinion in In re Hatcher, 150 F.3d 631 (7th Cir. 1998), that Judge Koc roug ro ugh opinio n in io o ) d ocoras's oc ss through 1998), that Judge Kocoras's son, John Kocoras, while acting as a third-year law student intern in the United States n h o cora r third-y ear law hird-yea l d y ear U t United States s son, John Ko co ras, Atto rney Office for the Northern District of Illinois, had assisted in the trial of Gangster o rney ey's f Northern rthe rther Illinois, had nois a i tria rial r Attorney's Off ice D Disciple leader Larry Hoover. Acting under the authority of Northern District of Illinois ead ea Hoov e . over ov y o f No rthern N t o f Illinoi nois Disciple leader General Rule 3.11, John Kocoras presented eight government witnesses during the Hoover a n Kocoras t witnesses i th Ho ov er H ve General tria Judge trial. Judge Kocoras att ial. ttended t performance. ma the trial. attended the trial to observe his son's performance. One of the w witnesses presented by John Kocoras testified regarding the seizure of $364,000 from by o from r witnesses William Hill and a member of the Gangster Disciple street gang. Testimony regarding this il mem ember Testimony mony g s William seizure was presented at Ward's trial as well. This was the only overlap between evidence e presented e betwe evidenc e tween e seizure presented at the Ho o ver trial and that presented at Ward's trial. o d that presented at Ward's resented W Hoover convic ted c e December ce e e p io ssu ued 1 3, Ward was convicted on December 19, 1997. Our Hatcher opinion was issued on May 13, Hatcher o pinion was issued 1998. Based on the information revealed in Hatcher, Ward moved for Judge Kocoras's inf nformatio n rev eale o v le led d mov ed f o r oved or d recusal at his sentencing hearing on June 18, 1998. Judge Kocoras denied the motion. On sentencin hearing n June ing i rn n Koc Ko c oras denie s deni nied n appeal, Ward argues that Judge Koc oras's presence at the Hoover trial and his son's that Judge Kocoras's h d e o Hoo ver trial and oove tria n v i involvement in Hoover's prosecution created a conflict that required recusal or, at the e e conf lict that required rec nflict a r i ir ecusal Hoover's prosec ution cr very least, disclosure. m a 28 U.S.C. sec 45 5 (a) which requ res U.S. S ec. 455 h c equi Ward bases his argument in part on 28 U.S.C. sec. 455(a) which requires a judge to argument part "disqualify himself in any proceeding in which his impartiality might reasonably be "d any proceeding edin edi t reasonably his questioned." The government argues that Ward waived his sec. 455(a) claim by failing to qu e rgues 455(a) (a a ng questioned." government argues that pursue it prior to trial, citing United States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989), rsu s trial, al, al United Sta es te Stat e 830, 833 3 1989), 9 ) pursue United States v. Bonds, 847 F.2d 1233, 1241 (7th Cir. 1988), and United States v. te Bonds, ond on 1 233, 233, 1988 1988), and U nited 88) United Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985). The application of these cases to the alistrie t F.2d .2d 1204 - 5 04-0 04 ) T he cases e he Balistrieri, present situation is debatable bec ause, given the sequence of events outlined above, it is pr s situation debatable because, le c e sequence e ab e, clear that Ward did not discover the information upon which he based his motion for Ward a no t disc ov er the o d c over r on upon n moti n fo otio ot recusal until after his trial was concluded. In the present case, we need not decide the re a unti afte trial w a was ep no t decide the o deci cid recusal unt l af t r present w ve waiv er issue bec ause Ward's claim fails on its merits. Recusal is required under sec. 455(a) ec c ed under sec. 45 5(a) d er r 455( 5 5(a) waiver ue because when "judge's impartiality could be questioned by a reasonable, well-informed wh n a "judge's impartia jud ju rtia rtiality , well-i f or d w l-inf ormed obse bserver." Hatcher 15 0 F.3d at atcher, 1 cher The si gle evidentiary overlap h sing den ry e l observer." Hatcher, 150 F.3d at 637 (citation omitted). The single evidentiary overlap between Ward's case and the Hoover prosecution is insufficient to support even an e Ward d e and th Ho r pro secution is insuff ic ie rose ution i secu f icie ient suppor ev an ort or between Ward's appearance of impropriety. Ward's case is easily distinguishable from Hatcher, in which e o f impro riety . Ward's ca is mprop et t d's d' y disting hable f rom Hatc her, in nguish b ng m tc her, c both cases were part of one large prosecution of a continuing criminal enterprise and were part f one large pr secution o c ontinuing criminal enter ere er p o larg pros g r n ti n i m al nter erprise involved "virtuall th same offenses, committed by the same people." Id. at 638. The lly ll e o ff en es, committe by the me peo ple " ffen s ense m tt tted h e e ple. "virtually the connection between Ward's case and the Hoover prosecution was not significant enough case as he Hoover prosec utio n was e ver ve c utio o a to require recusal under sec. 455(a). To the extent that Ward asserts claims under 28 455(a) T o he ext nt that Ward 5(a). ( xten t U.S.C. sec. 455(b)(1) and (b)(5), these arguments were fully addressed and rejected in Hatcher id. at 635-37, and we will not reexamine them here. Recusal was not required. 635 37 here required Hatcher, id 5. Closing Argument 22 Ward asserts that the prosecution committed reversible misconduct based on an alleged
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improper comment during its rebuttal closing argument. The comment at issue dealt with several photographs that law enforcement agents recovered from Ward when he was arrested on the passport charges. The photographs, which were presented at trial, were from Ward's wedding and included shots of Donald Marini and Cameron Wright. When they were seized from Ward, the photos were cut or folded in such a way as to highlight Marini and Wright, both of who m Ward k new were cooperating with the government by hom ho new e oope pera whom Ward knew were c oo per ting this time. 23 r not mention h photo graphs n his initial io n o p ini argu arg ment. The prosecutor did not mention the photographs in his initial closing argument. In his closing argu rgument, defense counsel addressed nse ns e dr r d photos, ca o oto them "no n-issue" h m o argument, defens counsel addressed the photos, calling them a "non-issue" and arguing that the photos only went to show the conceded fact that Ward, Wright, and n t ot ent sho en how e co nc eded o c eded d t Ward, Wright and rd right, n righ arguing that the pho to s only wen Marini knew one another. A second Assistant United States' Attorney presented the arini n n nother. sec ond ec States' A ttorney t s' rney the h Marini k new on anot g go vernment's rebuttal argument. In response to defense counsel's proffered explanation ebutta a eb counsel s pro ff ered expla tio el's o f d el lanati la tion government's reb al argument. for the photos, she stated r the ph photos, she stated h The ph os ] has he's attempting e's atte ' t the The photos that he [Ward] has with him, when he's attempting to leave the country, apparently Cameron Wright, Donald Marini, wedding pic tures [sic]. ly, ly igh ig c ture r apparently, Wright, pictures [ f [Def ense wo uld o s th s and d [Defense counsel] would say, okay, it shows what good friends they are. Ladies and g l gentlemen, I believe that you could draw from this an inference it's something slightly tha hat s something slightly o ghtly h gentlemen, more mo r sinister. w this man h This man, he knows without a doubt--Robert Daniel Ward knows that this man is knows cooperating against him as of January of 1996. He knows that this man in the back seat of t him January 1 996. He knows th nuary u 996 know back t of that car is cooperatin against him in 1996. For the family album? I don't think so, and I ting t hi 1996. 9 a bum? on't hink album? don think cooperating don't think the evidence indicates that. Defense counsel objected, targeting his objection d c ates objec ted, targeting bject d a j ted, n evidence indic at to "any sinister inference" and stating that there was no evidence to support the inference" and st ting th en n n stat evidence to sup ort id d supp u prosecutor's line of argument. The court responded, "Well, she may argue and the jury argument. T he court rg g t our u she may argue rgu may accept or reject any inferences to be drawn. She may argue." Ward raised the issue of any inferences ny n e e he argue." Ward raised rgu rg ." a of prosecutorial misconduct again in a motion f or a new trial, which the di misconduct again d a n for new trial, which rial h al, district court denied. ed district denied. We review both the overruling of Ward's objection and the denial of the motion for a new e n objec ion objectio n and the denial the j d na h ew overruling t trial for abuse of discretion. United States v. Knox, 68 F.3d 990, 1000 (7th Cir. 1995). discret etion. Uni e nited States v . Knox 8 F.3d 990, 1000 ni t Knox ox, 9 0 trial e o durin ring argument m Our analysis to assess allegatio ns of prosecutorial misconduct during closing argument assess allegations o f prosecutorial is two-fold. United States v. Butler, 71 F.3d 243, 254 (7th Cir. 1995). T he first step is to s two-fold. States Butler, t er r F.3d ) is 1995). The examine the disputed comment in isolation to determine whether it was in fact improper. mi disputed t n isola ion isol olat ne whether it hether improper. prop pro er. examine Id. If the comment was impro pe we must then examine the comment in light of the d h ent o per, examin mine f th Id. I f the comment improper, reco as reco as a whole to determine whether the defendant was deprived of a fair trial. Id. As cord e t determine whether min h ne defendant da a trial. d ial ia record the district court recognized, in c l district c ourt rec ognized, in closing argument, a prosecutor "may argue reasonab ri i c ogni d, nt t ea onab nable argument, reasonable inferenc es from the evidence that the jury has seen and heard." United States v. n nc c o evidence that idence h d seen States v tate tates inferences fro m W d Waldemer, 50 F.3d 1379, 1383 (7th Ci 1 995) While "innumerable facto may figure in , F.3d 83 (7th Cir. 1995). While 7th 5). ) tors a to r Waldemer, factors may figure the reasonableness c alc lation," th reasonableness calculation," the most obvious considerations are "[w]hether the ea n n ne alcu s are "[w]h er the w]hethe ev idence bears logical and proximate connection to the point the prosecutor wishes to vi a ogic ical roximate nt the prosec uto r wishes to e o w h evidence bears logic a nd pro prov e." Id. at 1384. It is also important to consi er whether the prosecutor made "the v 3 l ls mportant rtan nside whether ethe pro secutor made "the r uto t "th prove." Id t 1 384. I t also impo rtant consider whether argument so lely to inflame the passions of the jury." Id. Given the circumstances of the y n me h assion assi jury " Id. Given th circ umstances ury. d v ur rc mstances c ance solely inf lame the passio s o f present case, the argument was logically and proximately connected to the evidence. e th men me gical ally proximately connected to the ev idence. xim el on ct xi o c h case, the argument was logic al Moreover, the argument was not made solely to inflame the jury but rather in response to argument as not made rgume m s d to inflame f fl e ju y but rather t t an explanation offered by defense counsel in his closing argument. The prosecutor's defe efense c ounsel his sel e g argument. g m nt argument was not so unreasonable as to deprive Ward of a fair trial. See id. at 1385. able ab e rive ard v unreasonable as deprive Ward o f air Ward's prosecutorial misconduct claim fails. B. Rodney Ellis 28 Ellis raises several challenges to the district court's determination of his sentence. Ellis first contends that the district court erred in its application of sec. 2S1.1(b) of the United
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States Sentencing Guidelines ("the Guidelines"). Ellis further asserts that the district court abused its discretion by sentencing him at the high end of his Guidelines range. 29 Ellis's 2S1.1(b) argument is two-fold. First, Ellis argues that the district court's decision to apply both subsection (1) and subsection (2) of sec. 2S1.1(b) resulted in impermissible s A tterso n, t erso n s double counting, citing United States v. Atterson, 926 F.2d 649, 660 (7th Cir. 1991). The present case, however, is distinguishable f rom Atter distin uishable from Atterson. T he distric t judge did not base stin stinguisha e o m t er h erson. The district r istri r (b)(2) b em t the st t v alue f the quantity e h anti an i Ellis's sec. 2S1.1(b)(2) enhancement on the street value of the quantity of drugs involved 2S1.1(b)(2) enhancement y, , a i n o ney in the conspiracy, but rather on actual instances of money laundering. See United States v. rather actual instanc es o mon y laundering. See 10 2 7th 7t i 7 (distinguishing Atterson). There is no d ing hi n h tt o n t House, 110 F.3d 1281, 12 n.3 (7t Cir. 1997) (distinguishing Atterso n). Th 1281, 1285 3 (7th Cir. impermissibl double enhan m nt. m ible b nhancement. h impermissible double enhancement. A Alternatively, Ellis c onte l llis onte tends g un 2S1 .1 (b)(2) that 1 1 (b)( ) h ) Alternatively, Ell contends that the district court's finding under sec. 2S1.1(b)(2) that e valu lue s laundered exceeded $2 million was unsupported by the evidence. 4 The aundered d by the ev nce. T he evidenc h the valu of funds lau value district court arrived at this value by holding Ellis responsible for (1) $750,000 to $1 dist strict c o urt arrived st t rri by ho lding Ellis holding E l ldin $7 50,000 to 1 75 0 million la ndered millio n laundered through Pocketown in 1993; (2) $1.5 million laundered into the JetStar lion laund Po ck etown o cket ) $ 1 .5 million 5m d int ar r aircraft, a seventy-two foot yacht, and a speed boat which accompanied the yacht; and (3) o h acc ompanied c yac ht; and (3) a ac n ( seventy-two fo ot $1,107,000 through $1,107 ,000 laundered through "Reasons." At sentencing, Ellis c hallenged the inclusion of 7 is challenged h inclusio n nc si the amounts relating to the plane, the yacht and speed boat, and "Reasons." On appeal, the am to "Re Reasons." Re app l, ppeal pp E Ellis challenges only the district court's valuation of Hill's investment in Pocketown and th investment n n and n Ellis the inclusion of amoun relating to the yacht and accompanying speed boat. h unts u d bo at. b the amounts As previously noted, Ellis did not object to the valuation of the Pocketown investment at note ted, t Pocketown in w investment men e sentencing. Therefore, our review with respect to this issue is for plain error. United Therefo r ore, o review with respect this issue e i ssue u U nited States v. Monem, 120 F.3d 645, 647 (7th Cir. 1997). At sentencing, the district court 120 20 2 64 5 , 4 5, sentenc ing, the district n en ng istr tric adopted the $750,000 to $1 million value for the Pocketo wn investment. This value is $750,000 0 o al a o n nvestm tment. million value Pocketown inv estm supported by Michael Jefferson's trial testimony and by the calculations set out in the l Jefferso n trial testimony son's r e the c alculatio ns h ulation atio presentence report. There is no plain error, and we turn to the inclusion of the value of the There no pl h the inclusio n o h incl sion clus the h yacht and speed boat. Because Ellis objected to this inclusion at sentencing, we review for Because Ellis obje eE bjected s inc l sion at sentenci nclu n entencing, enci fo r o clear error. United States v. Gwiazdzinski, 14 1 F.3d 7 84 , 788 (7th Cir. 1998). Under this States Gwiazdzinski, 141 3d 784, 788 (7 t at t w 84, . 1 998). standard, we will reverse "only if the district court's findings are without foundation in the reverse "only s l distric t co urt's findings are witho ut r c court find gs re urt' ho o the e ev idence, such that we are 'left with the definite and firm conviction that a mistake has are t with e definite and f ir conv ic definite ie irm v iction that s evidence, been be committed.'" House, 110 F.3d at 1283 (quoting United States v. Herrera, 54 F.3d Ho use, o F.3d t 1 283 3 . d 34 8, 356 (7th Cir. 1995)). Under U.S.S.G. sec. 1B1.3(a)(1)(B), Ellis is liable for funds 48 1995)). 9 U .S.S S.S.G. S s liable s 348, laundered by his coconspirators as long as the acts were reasonably foreseeable. Ellis nd coc o n c onspirators long ong e reasonably fo bly f oreseeable. Ellis li laundered argues that there was no evidence that he ever used or even knew of the yacht; however, gu u wa that h even k new howev er owev er, owever argues the trial testimony of Elisha Tapes supports a finding that Ellis at the very least had h tria i n Tape Tapes pes finding that ding ha the trial testimony o knowledge of the yacht. Tapes described a trip to Houston, Texas which included Tapes, kn dge dg y ac ht. Tapes desc a h pe escribed e o Houston, included Ta ud knowledge Nate Hill, Hill's mother, and Ellis, among others. The group flew to Texas on Hill's JetStar a Hill s mother, an Ellis, ill' er r lli i s. T he . o n Hill's JetStar Hill ll's Sta St Nate a aircraft Du ng the flight, Hill boasted that he ow aft. During g Hill bo asted that he owned the plane and was proud of it. Tapes ill boasted aste prou pr ud T ap apes aircraft. f he test d that, further testified that, at one point during the Houston trip, Ellis was present during a h stified that at, s pr sent duri g prese uring further st co nv ersation in which Nate Hill, together with the man who arranged the yacht's purchase, o n ersa sat a h Na rran rr n ac purc pu h conversation in arranged th yacht's pu c hase, were describing and bragging about it. The district court's inclusion of the value of the re describing and bragging abo ut ibin ibing ging gi g b court s in sio n the value f th urt' ur inclusion alu al yacht and its acco mpanying speed boat in its sec. 2S1.1(b)(2) calculation was not clearly d its accompanying speed t c mpa ng p p t its sec 2S ec. 2S1.1(b)(2) calculation was no t clearly ( (2 c o c erroneous. Ellis's remaining challenge to his sentence is also unpersuasive. Ellis contends that the h e e nc nce per a e Elli e lis challenge his sentenc s also unpersuasive. Elli district court abused its discretion by sentencing him at the high end of his Guidelines discretion ret e sentencing ente i t the high range, arguing that the district court's stated reasons for imposing a sentence at the top of urt's te reasons ' e ons court's stated reason f or the Guidelines range were contradictory and, therefore, inadequate under 18 U.S.C. sec. 3553(c) A review of the transcript of the sentencing hearing reveals that the district court 3553(c). provided a detailed and internally consistent explanation to justify its decision. The court recognized that Ellis was not required to confess, but stated that a sentence at the high end of the Guidelines range was appropriate because Ellis failed to show "one ounce of remorse, one ounce of acceptance of responsibility, one ounce of some sort of
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understanding of why you are here and what you did[,] . . . one ounce of humanity, [or] one ounce of recognition." The court informed Ellis that "it would have been nice at some point for you, in whatever oblique way you wanted to do it, to recognize that society was harmed by your activity." The district judge further noted that despite Ellis's insistence that some of the witnesses lied, he thought the evidence against Ellis was "overwhelming." overwhelming. This explanation is both proper and sufficient to satisfy 18 U.S.C. sec. 3553(c). Therefore, p n suff icie ffic tisf tisfy proper and suff ic ent to satisf y 1 as Ellis's sentence was imposed pursuant to the law and within the applicable Guidelines sed se ursu t t a t n imposed pursuant to the law and within the applicable range, we lack jurisdict risdiction rev w e district c ourt's placement o f the dict eview r o 's a e nt s t jurisdiction to review the district court's placement of the sentence within the range. See United States v. Solis, 923 F.2d 548, 551 (7th Cir. 1991). Ellis's sentencing Unit d St nite ni So lis, 2 F.2d 54 8, 51 (7th ol 2 4 5 t 1991 . Elli 991) lis's 99 Elli challenges fail. ng g challenges f ail. II I. CONCLUSION III. CONCLUSION II LU O 33 Ward Ward convictio n is affirmed. Ellis's sentence is affirmed. rd's o Ward's conviction is
Notes: 1 Marshals Serv ice regulations will not allow for the transportation of a prisoner unless the Ma rshals a reg ul eg ulations g of unl ess th e l es h prisoner has tested negativ e for tuberculosis. pr ne 2 Fed. R. Ev id. 4 03 prov ides, "Although relev ant, ev idence m ay be excluded if its probativ e prov d if iv ia on of n issu es, su u v alue is substanti al ly outweighed by the danger of unfair prejudice, confusion of the issues, substantially or m isleading the jury , or by considerations of undue delay , waste of tim e, or needless e j ury consider at i ons of un du e onsid ati i t ions undu d y needless ee e cu m u ev i dence." " id 0 4 ( d e other presentation of cum ulativ e ev idence." Under Fed. R. Ev id. 4 04 (b), "Ev idence of other crim es, wrongs, or acts is not adm issible to prov e the character of a person in order to show action in s n ot issi bl e ssib per n per son i n or der rson ord in therewi ewith. y howev e o e oth pur poses, ther urpos o conform ity therewith. It m ay , howev er, be adm issible for other purposes, such as proof of m otiv e, opportunity , intent, prep ra ti y t, preparation, plan knowledge, identity , or absence of m istake or repa r tion, ide ty identity a bsence b accident." 3 Although counsel for Ward attem pted to cha llenge additional ev identiary rulings at oral r a tt at t em challenge a ddit iona l identiar y hall e ddit iona t on i ar r u e n ot hi s br ief an d ar e wa iv ed. Un it ed b ief a n t Magan a, n argum ent, these issu es were not raised in his brief and are waiv ed. United States v . Magana, issues 7 th ). 1 1 8 F.3 d 1 1 7 3 , 1 1 98 n.1 5 (7 t h Cir. 1 9 9 7 ) . 98 4 This finding resulted in a six-point enhancem ent in Ellis's base offense lev el under sec. resulted e six-poi nt enh ancem point n t e l ev 2 S1 .1 (b)(2 ). S1

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