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211 F.3d 356 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,v.

ROBERT DANIEL WARD and RODNEY ELLIS, Defendants-Appellants.

Nos. 98-2657 & 98-2812

In the United States Court of Appeals For the Seventh Circuit

Argued October 27, 1999Decided April 28, 2000

I. BACKGROUND

Appeals from the United States District Court for the Northern District of Illinois, EasternDivision. No. 95 CR 730--Charles P. Kocoras, Judge. [Copyrighted Material Omitted]

Before HARLINGTON WOOD, JR., FLAUM, and EVANS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

On June 16, 1997, a multi-count second superseding indictment was filed in theNorthern District of Illinois charging Robert Daniel Ward and Rodney Ellis, along withnine codefendants, for conduct relating to a large-scale drug distribution conspiracy. Thetremendously successful conspiracy was organized and supervised by Nathan "Nate" Hillwho began distributing cocaine in the Chicago area in the late 1980s. Ward and Ellis wereeach convicted on two counts of the indictment following a jury trial. On appeal, Wardraises several challenges to his conviction. Ellis also appeals, challenging his sentence.

1

The Hill conspiracy distributed thousands of kilograms of cocaine in the Chicago areabetween 1987 and December 1995. Hill obtained this cocaine from a variety of suppliers.Ward, who was based in Los Angeles, California, was one of Hill's large-scale suppliers.Ward employed a number of couriers, some of whom were supervised by Donald Mariniand Cameron Wright, to transport large quantities of cocaine from California to Chicago.Hill then acted as a wholesaler, selling multi-kilogram quantities of cocaine to distributorsin the Chicago area. After several of his couriers were arrested, Ward began charteringLear jets to transport cocaine to Chicago. Between March 1, 1994 and October 7, 1994, forexample, Ward chartered eight trips to Chicago through Sussex Aviation in Van Nuys,California. Testimony was presented at trial that each charter trip involved thetransportation of approximately fifty kilograms of cocaine.

2

Drug trafficking provided Hill with sizable profits which he used to purchase homes,cars, boats, and, eventually, a four-engine JetStar aircraft. Hill also sought legitimatebusiness opportunities through which he could launder his drug proceeds. One of thesebusinesses was Pocketown Records, a record producing and manufacturing businessformed in 1993 by Nate Hill and Michael Jefferson. At Hill's direction, Rodney Ellis, acousin to Hill, participated in the operation of Pocketown Records. Ellis managedPocketown's daily operations and financial activities. Pocketown's expenses were paidprimarily in cash. For example, no salary checks were issued; instead Hill handed out cashpayments to Pocketown workers. On several occasions, Ellis transported large amounts of

3

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v.ROBERT DANIEEEELLLL WWWWAAAARRRRDDDD aaaannnddd RRRROOOODDDDNNNNEEEEYYYY ELLLLIS, Defendants-

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NNNNoooos. 99998-266665557 &&&& 99998888-2888811112

In tttthhhhe Unnnniiiteddd Staaatttteeees CCCCooouurt of AApppeeeaaalssss FFFFoooorrr tttthee SSSSeevvvveeeenthhh CCircuuuuiiiitttt

Argued October 27, 1999Deecciidddeeeddd AApppril 28, 2000

I. BACKGROUND

Appepepepealalalals from the Uniteeddd StS ates District Court for the Northern DDDisisistrt ict of Illinois, EasasasasternnnrnDiD viiisisss on. No. 95 CR 737330-0 -Charles P. Kocoras, Judge. [Copyrightedd MMMaterial Omitted]d]d]d]

Before HARLINGTONNN WOOD, JR., FLAUM, and EVANS, Circuit Judges.

HAHHH RLINGTON WOOODD, JR., Circuit Judge.

On June 16, 19977,, a multi-cocoouuunt second superseding inddiicictmtmtmenennttt wawawasss fififileleleddd iinin theNorthern District offf IIlll inois chchhaargiingn RRRobo ert Daniel Ward ananand d RoRodndneyeye Ellis, along withnine codefendants, forrr conduuctctct rrelelaatining g g to a large-scale druuug gg ddistriribububutitit oonon conspiracy. Thehehehetremendously successsfufuf l consnspipipiraracyc was organized and suppeererviviv seseedd bybyb NNataa han "Nate" Hillllllllwho began distributinggg cocaineee in the ChChicago area iin n ththee lalatete 119880s0s.. WaWaWard and Ellis werrreeeeeach convicted on two ccountss oooff the indictmementnt folollolowiwiwingngn aaa jjjururury y y trial. OOOn appeal, Wardraises several challengeees to hisis cconviction.n.. EEEllllisiss aaalslslsooo apapppep alalss, ccchhahallenngigiginng his sentence.

1

ThThThThe Hill conspiracyyy distributed d thththououousands of kilograms of cocaine e iiin the Chicago aaaareaaaabetwwwweeeeen 1987 and DDDeecember 19955.. HiHiHilllll obtained this ccocococaiaiainenene fffrororommm aa variety of suppppplplplplieieiersrsrsrs...WaWaWaardrdrdrd,,,, whwww o was bababasesed in Los AAngngeles, California, was onoone of Hill's large-scale supppppppplllil ers.sWaWaWaWard empmmpm loyed a aa nunun mber oof f cocoururiiers, some of whhomomom were supervised by Donaaaaldldldl MMMMaraa iniand Camerorororon nnn Wrighthtt, toto ttraansnspooporrrt large quantittieieess of cocaine from Californiaaaa tttto ChChChChicicicicaggggo.oooHiHiHH ll theeeen n n n acaaca teed d d d as a wholelelesasas leler, selling multi-kilogogogram quantities of cocainnnneeee tototot ddddisisisistrrrribibibibututututorooo sininini theeee CCChicaaaago aaarea. After sever lal off hihis couriiers were arrested, Ward begegegegan cchahahaharterinnnnggggLeLeLeLear jjjjeteee s ss totototo transnsn portrtrtt ccccocooo aine to Chicago. Between March 1, 199444 aaaandndndnd OOOOcttttobobobo er 7777,,, 1919191994949494, fofofoforexxxxamamamample, Warararard d dd chchchcharararartettt red d dd eieieieighghghght trips to Chicago through Susususssesesesexxxx AvAvAvAviationononon in VVaVaV n Nuysysysys,Califofofoornrnrnrniaiaiaia. TeTeTeTeststststimiii onnnyyyy was s ss prpp esesessenenenentetetetedddd atatatat tttriialalal ttthahahahat t eaeaeaeachchchch ccchhhhartrtrtrtereere trip iini volvvvvedeee tttthehehehtransportatititition oooof fff apapapappppproximimimimatatatately fififififtftftftyyyy kilolol gramss ofofofof coccaia nee...

2

Drug traffickikikikingngngng ppprorororovivivv ded d d d HiHiHiHillllllll wwwwitititi h h h sssizable prprprprofittttsss s whhhicicicich heee useeeed tooo pppurururu chase homes,cars, boats, and, eventually, aaa a fourururur-e-e-eenngine e e e JetSSSStatatatar aircraraaaffftf . HiHiiilllll aaaalslslslsoooo sought legitimatebusiness opportunities throughghhh wwwwhihihih chchchch hhhheeee cococc uld d d laaaaunununundedededer rr hihihihissss drdrdd ug proceeds. One of thesebusinesses was Pocketown Records, a reco ddrd producing and manufacturing businessformed in 1993 by Nate Hill and Michael Jefferson. At Hill's direction, Rodney Ellis, a

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II. ANALYSIS

A. Robert Daniel Ward

1. Speedy Trial Motion

cash from Chicago to Pocketown, which was located in New York, and at other times, Ellisreceived deliveries of cash from other Hill employees. Ellis prepared false records forPocketown in an attempt to justify the influx of cash to the business. Ellis also providedinaccurate information to the accountant who was preparing Pocketown's 1993 taxreturns. Ellis then signed the falsified return and filed it with the IRS. Ellis later becameinvolved in another of Hill's business ventures, the production of a motion picture entitled"Reasons" which was based on Hill's life story. Ellis played a limited role in the "Reasons"production, unsuccessfully attempting to persuade a recording company to produce thesoundtrack for the film.

The initial indictment in the case was filed on December 13, 1995. It contained eighteencounts and named twenty-one defendants. A superseding indictment was filed on October31, 1996, and on June 16, 1997, a second, and final, superseding indictment was filed.Ward was charged under Counts One and Four of the second superseding indictment.Count One alleged that Ward was involved in a conspiracy to distribute and to possess withintent to distribute mixtures containing cocaine in violation of 21 U.S.C. sec. 846. CountFour charged Ward with a violation of 21 U.S.C. sec. 841(a)(1) based on an allegedattempted distribution of approximately nine kilograms of cocaine on or about January21, 1993. Ellis was charged in Counts Seven and Eight of the second supersedingindictment. Count Seven charged Ellis together with several codefendants with conspiracyto defraud the United States, in particular the Internal Revenue Service, in violation of 18U.S.C. sec. 371, while Count Eight charged Ellis and several codefendants with moneylaundering in violation of 18 U.S.C. sec. 1956(h). The case proceeded to a jury trial, andboth Ward and Ellis were convicted on each of the counts against them. Ward wassentenced to 360 months imprisonment on each count with the sentences to runconcurrently. Ellis was sentenced to 108 months imprisonment. A timely notice of appealwas filed in each case, and the cases have been consolidated for appeal.

4

Ward raises several challenges to his conviction, while Ellis challenges the districtcourt's computation of his sentence. We address each appellant's argument in turn.

5

Ward challenges the district court's rulings on his speedy trial motion and on severalevidentiary motions. Ward further asserts that the district court erroneously limited thescope of his cross-examination of Donald Marini and erred in failing to sua sponte recuseitself. Finally, Ward contends that the government committed prejudicial error based on acomment made during closing argument.

6

Ward was arrested in Los Angeles, California on January 11, 1996 on charges stemmingfrom a false application for a passport. While Ward was in custody on the passportcharges, he was separately indicted in the Central District of California for narcoticsviolations based on his distribution of drugs to the Hill conspiracy. On October 11, 1996, acriminal complaint was filed in the Northern District of Illinois charging Ward withnarcotics violations in connection with the Hill conspiracy. On October 18, 1996, thenarcotics charges pending against Ward in the Central District of California were dismissedafter prosecutors received the Illinois complaint and an accompanying bench warrant forWard's arrest.

7

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

8

II. ANALYSIS

A. Robert Daniel WWaard

1. SSSSpeeddddyyyy Triaiaiaial ll MoMoMoMotittion

returns. Ellis then signed the falsified return and filed it with the IRS. Ellis later becameinvolved in another of Hill's busisisinennn sssss vvvvenenenentututt rererer ssss, tttthehhh pppprorororodududud ction of a motion picture entitled"Reasons" which was based onononon Hillll'l'l'l'ssss life sssstoryryryry. Ellllllliss s s ppplayedddd a llllimimimimititititedededed role in the "Reasons"production, unsuuuucccccccceesesessssfs ully atttttemememe pttttiinii g tototot perererrsuadaddde eee a rererecordrdrddininini g coooompmpmpmpananananyyyy to produce thesoundtrack for thehehehe film.m.m.m

The e ininininitiaaaal l l l indictmemmm nt iiiin n n n ththththe caccac seee wwwasasass filed oooon n n DeDeDeececececembmbmm er 13, 19999999 5. It t t t conttttaiaiaiainenenenedddd eiee ghteencoununununtststst aaaandnnn namamamamed ttttwewewewenty-y ononononeeee deddd fendants. A supersedinii g ininiindidididictcc mememementntntnt was filed on OcOcOcOctottot ber31313131, 1996, and onnnn JJJJunee e e 16161616, 1997, a second, and final, supersedingnggg iiiindndnn ictmmmment wawawaw s fifififilelll d.Waaaardrdrdrd wwwwasaaa chargedededd uuuunder Counts One and Four of the second supersedingnnn indndndndictmmmmeeeent.Cooouuunu t Onnnne alllelelelegggged that Ward was s inininvvovollvl deded iiin n aaa cococonsn piracy to distribute aaaandnnn tttoooo pppossesss sss withhhhintentntntnt tttto ooo diststststribute mixtures s s ccoconttaining cocaine in iviollolatatatioion of 21 U.S.C. secececec... 84848446. CountntntFour chahaaargrgrgrged Ward with aaa violation of 21 U.S.C. sec. 841(a(a)()((1)1)1) based on an allegegegegedattempppptttted distribution ooof f approximately nine kilograms of coocacaininine on or about JaJaJaJ nuuuuararaa yyyy2212121, 19191919993. Ellis was chaarargged in Counts Seven and Eight of the seconnd dd supersedinginininindidd ctment. Count Seeevvven charged Ellis together with several codefendnddanaa ts with conssspipipipirararacycycycyto ddddefraud the Uniteedd d States, in particular the Internal Revenue Servicee, inini violation ooof 18888U.U.U.U.S.C. sec. 371, whillele Count Eight charged Ellis and several codefendants wiwiwiththt moneyyyylaundering in violattiioion of 18 U.S.C.C. ssececec. 191919565656(h(h(h)).). TTThehe case prp oceeded to a jurryy trial, andndndndboth Ward and Elliss s wwere convivictctcted on each of the countst aaagagag ininst them. Warard d d wwwassentenced to 360 mmmono ths imprprrisiisonment on each count witthhh thththee e seesentnttences to runconcurrently. Ellis wawaas sentenncceced tot 1108080 months imprisonmemement. A A titit mmemely notice of appeaeaeaalwas filed in each case, ana d the e cacacaseses hahaavevv been consolidateddd ffoor appppppeaeaeal.l.

4

Ward raises several ccchallengnggese to his coonvnvnvicictitiionon,, whwhwhilile ElEllilis s chcchalleengngngees the districtcoccc urt's computation offf hhis senteteencn e. WWWee e adaddrdrd esesss s eae chh appellaantnt's arggumumment in turn.

5

WaWaWaard challenges thththe district couurtrtrt's's's rrulings on his sppeeeeeedydydy ttririalal mmmotototion and on sevvvvereee allllevvididididenenenentititt ary motiioonons. Ward fuurtrtheh r asserts that the disisstttrict court erroneously limimimimitttet d dd ththththeeeescscscscopopopope offff hhhhis crossss-e-e- xax minatiiononon ooof f f DoD nald Marini anannddd erred in failing to sua sponononnttet rrrrecee useitself. Fiiiinananaalllllllly,yyy Ward dd cococ ntntendsdss ttthahahat the governmementntnt committed prejudicial errrrorooo bbbasasasasededede ooon acocococommenenennttt t mamamadededede during cllclososo ining argument.

6

WaWaWaWard wasss aaaarrrrrrrresesesesteteteted d d d inii LLLLosososos AAAAngngngngeles, California on Januarararary y y y 11111111, 19191919969699 on chcchchargegegegess stemmmmmimmm ngfrom a ffffalalallseee appppplilll catiiiionooo forororr aaaa pppaaassportttt. WWWWhihihihilelelee WWWWarararard d d d was in ccccusususustot dy on theeee papapapassssspoopoortrtrtrtcharges, he wwwaw s sesesesepapapaparatelylylyly indndndn icteeeedddd inininin the Centralalalal DDDDistrrrricii t ofofoff Calalalalififififoroo niiiia aaa for r nanananarcrcrcrcoticsviolations bassssedededed on hiissss dididd stririiibubububutititiononn of f ff drugs toooo theeee HHHHill cccconspppip racycycycy. OnOnOnOn OOOOctctctctoboboo er 11, 1996, acriminal complaint was filedddd iiin thhththeeee NoNoNoNortheeern DDDDisisisistrict offf IIIIllinoioioiis chchchc arararargigigiging Ward withnarcotics violations in connecccctitititionoo with ththththee ee Hillllll cccconooo spiracacacacy.y.y.y OOOOnnnn OcOOO tober 18, 1996, thenarcotics charges pending against WWWWard in nnn ththththe eee CCeCeC tttntrallll District of California were dismissedafter prosecutors received the Illinois complaint and an accompanying bench warrant forWard's arrest

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Northern District of Illinois attempted to obtain custody of Ward through its normalchannels. These attempts were complicated due to erroneous information received fromthe Marshals Service Prisoner Coordination Section that Ward could not be transported toChicago 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 foran out-of-district process hearing at which time Ward asserted his speedy trial concerns.The magistrate noted Ward's objections and stated that Ward would need to raise them inthe Northern District of Illinois following his transfer. On February 11, 1997, the MarshalsService in the Northern District of Illinois was informed that Ward was being held inCalifornia pending the results of his tuberculosis test.1 Ward was cleared fortransportation to Chicago on approximately February 26, 1997. He arrived in theNorthern District of Illinois on either March 6 or 7 and made his first appearance before ajudicial officer on March 13, 1997. On March 27, 1997, Ward filed a motion to dismiss theindictment, arguing that the delay from the time his California charges were resolved untilhe was brought before a judicial officer in the Northern District of Illinois violated hisright to a speedy trial under the Speedy Trial Act, 18 U.S.C. sec. 3161 et seq., the SixthAmendment, and Federal Rule of Criminal Procedure 48(b). The district court deniedWard's motion. Ward's jury trial began on November 6, 1997.

By its express terms, the Speedy Trial Act does not apply in the present case. Under theAct, the trial of an accused must commence "within seventy days from the filing date (andmaking public) of the information or indictment, or from the date the defendant hasappeared before a judicial officer of the court in which such charge is pending, whicheverdate last occurs." 18 U.S.C. sec. 3161(c)(1). Ward challenges only the delay from the timecharges were filed in the Northern District of Illinois until March 13, 1997, the day he firstappeared before a judicial officer in the Northern District of Illinois. This time period isoutside of the Speedy Trial Act, and because Ward does not allege any improper delayduring the time his Speedy Trial Act clock was running, his Speedy Trial Act claim fails.

9

The Sixth Amendment right to a speedy trial is similar to, but separate from, the rightcreated by the Speedy Trial Act. United States v. Koller, 956 F.2d 1408, 1413 (7th Cir.1992). The Supreme Court has established a four-factor balancing test to use indetermining whether a defendant's Sixth Amendment right to a speedy trial has beenviolated. See Doggett v. United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407U.S. 514, 530-33 (1972). Under this test, we must consider "whether delay before trial wasuncommonly long, whether the government or the criminal defendant is more to blame forthat delay, whether, in due course, the defendant asserted his right to a speedy trial, andwhether he suffered prejudice as the delay's result." Doggett, 505 U.S. at 651.

10

In determining whether the delay was uncommonly long, we must consider the intervalbetween accusation and trial, here over a year. See Doggett, 505 U.S. at 651. As theSupreme Court noted in Doggett, courts have generally found delays approaching oneyear to be presumptively prejudicial. Id. at 652 n.1. However, Ward challenges only theperiod between the return of the indictment and his first appearance in the NorthernDistrict of Illinois. Therefore, this factor does not weigh heavily toward either side. Withrespect to the second factor, Ward alleges that the delay was the result of a lack ofdiligence on the part of the prosecution. An examination of the record reveals that thedelay resulted from miscommunication and the necessity of fulfilling certain prerequisitesto transfer. Because this equates at the most to negligence on the part of the government,this factor must "'be weighted less heavily but nevertheless should be considered since theultimate responsibility for such circumstances must rest with the government rather thanwith the defendant.'" United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976) (quotingBarker, 407 U.S. at 531); see also Doggett, 505 U.S. at 657 ("To be sure, to warrantgranting relief, negligence unaccompanied by particularized trial prejudice must have

11

1997, Ward was brought before a magistrate judge in the Central District of California foran out-of-district process heariingngngg at whwhwhwhicicicichhhh titititimememme WWWWarrrrdd d d asasassses rted his speedy trial concerns.The magistrate noted Ward's sss obooo jeeectctctctioiii ns aaandddd stateteteed d d thttt at WWWWara d dd d wowowoululululd need to raise them inthe Northern Dissstrtrtrtricicicicttt ooofo Illinoiiiis s s s folllllooowo innnng g hissss trannnnsfsfsfsfer. On FFFebebebebruarararryyyy 11111111,,,, 1911 97, the MarshalsService in the Norrrrthtt ern n nn District oooof f Illinonononois wasasaa infnfffooormemememed thhhhaataa Ward d wawawaw s bebebebeiniii g held inCalifornnniaiaiaia ppppendingg tttthe rreeese ultsss oooof hihihihis tubebbb rculosoo is test.t.t.t.1 Waraa d was s s s cleaaaarrerr d fofofofortransppppoooortatiiiioonono to Chhhhicii agoooo oon apppppppprooooxixixix mamamam tely FFFFebebebbrururuuararara y 2626262 ,,,, 199997. HHHHe aaarrrrrrrrivedddd iiiinn ththththeeeNoNoNoortrtrtrthehehehernrnrnrn Distrtrtrtricii t t t ofofofof IIIIllll innoioioioissss oooon either March 6 or 7 and maddeeee hihhh s fifififirsrsrsttt appearanannncececece befefefeforooo e ajujujujudicicial officer oon MaMaMaMarrrrchh 13, 1997. On March 27, 1997, Ward fiileleleled ddd a a a a momomomotionnn ttttoo dismsmsmmisss s s tht eindidididictmememementnn , arararguguguuininining that the delay from the time his California charges wewww reee rrresololololvvved ununununtitititillllhe wwwwasa bbbrorrr ugggghthththt before a judicialalal ooofffffficicerer iin thhee NoNNortrtrtheheh rn District of Illinoioiiis s s s vivv ollllated hisrir ght tot a spepepep edy trial undeerrr tththe Speedy Trial Act, 18 UU SS.S.C.C.C.. sec. 3161 et seqqq., ttthehhh SixthhAmennndmdmdmdmeeent, and Federalalal RRule of Criminal Procedure 48(b). TTThehh district court ttt deddd niiiiededededWaWWW rd's's'ss motion. Ward's s s jjujury trial began on November 6, 1997.

By its express termmsms, the Speedy Trial Act does not apply in the prereesess nt case. Undddderererer theheheheAcccct,ttt the trial of an acccccused must commence "within seventy days from tthehehe filing datee ((annddddmamammaking public) of thhee information or indictment, or from the date the defeendndndana t hasappeared before a juuuddicial officerr ooff ththhee e cococourururttt ininin wwwhihichc such charge is pendinng,g, whichevvvvereeedate last occurs." 188 8 U.S.C. secc.. 33161(c))()(1). Ward challengegeess ononlyy the delayy ffroroomm the timecharges were filed in n the Nortthehehern District of Illinois until MaMaMarrcrchh h 131313,, 1997, the day he firirrr ttstappeared before a juudidid cial offficicceer iinn thhheee Northern District ofofo IIllinoioiis.s.s TTThis time period isoutside of the Speedy TrT ial AcAct,t,t, aandn bbecececause Ward does nottt aallege e e anananyy y imimimproper delayduring the time his Speeeeedy Tririalala AActc clock was running, his SpSpSpeeeedydydy TTTririalal Act claim fails.

9

The Sixth Amendmeennt righht t to a speedy trtrriaiall l is ssimimmilililaarar tto,oo, bbbututu separratate from, the righttcreated by the Speedy TTrial AcActt.t United StStStatatateses vvv. KoKoKo lllllerere , 956 6 F.FF.22d 14040088, 1413 (7th Cir.11911992). The Supreme CCooourt has eeeststabliishshheded a ffouur-r faf ctor balan icing tesessttt to use indedededetermining whether aaa ddefendannt't't'ss s SiSixxtxth Amendment right to a speededdyy trial has beenviviviviololololataa ed. See Doggett vv. United Sttatatatesess,, 505 U.S. 647, 651 (1992); Baarkrkker v. Wingo, 44440070U.S. 555514, 530-33 (19191972). Under tthihiis s s tetetesst, we must considider "whetetheheherr delay before ttttrirrr al wwwwasaauncocococommmmmmmmonly lonngg,g, whether the government or the cririmmminal defendant is more too bbbbllal memememe forththththatatatat dddellllayayayay, whetheheher,r in due cocoourururseses ,, the defendant asasssseserted his right to a speedyyy ttttrirrr al,,, anddwhether rr hehehehe sssuffered dd prprp ejjudicice e e asasa ttheh delay's resulultt.t." Doggett, 505 U.S. at 651...

10101010

In ddddeteteteterrrrmimmm nininiinnngn whether ttthehehe dddelelelayayay wwwasasas uuuncncncomomommmmonly long, we must consnsnsnsidididi erererer ttthe intntntterererervavvv lbebbb twwwweeeeen acacaccccusaaaatititit onononn aaand trial, here over a year. See Doggett, 505 U.SSSS.... ataa 666651555 . AsAsAsAs tttheeSuSuSuSuprpp ememememeeee Courrt noted inininin DDDDoggett, courts have generally found dedd lalalalays aaaappppprooooacaaa hingnggg oneeeeyearararar ttttooo be pppprerereresusuuummpmm tititiivvvev ly ppppreeejujujujudidd ciciala . Id. at 652 n.1. HoHoHoowewewewevevevever, WWWWarararard chalalalallenggggeeeses onllly y y y tttheperiod bbbetwewww enn tttthe rrrreteee urn n n ofofofof tthehhhe indictmtmtmmenenenent tt annanand d d d hihihihis ffirst appppepepepearaaa ance in thhhhee ee NoNNN rtttthehehehernDistrict of IlIlIlllililil noisisisis. ThTTT erefefefefore,eee thiiiisss s fafafafactctctc or does nooootttt wweww iggggh hhh heavaava ily ttott waaaardrrr eittttheheheherrrr side. Withrespect to the ssssececececonono d d d fafafafacctorr,,, WaWaWaWardrdrdrd allllleeeeges thaaaatttt the ee ddedd laaayyyy wass ss tht e rrrer suuuultltltlt oooof fff aaa lack ofdiligence on the part of the pppprrorr secucucucutitititioono . AnAAA exaxaxaxamimmm nationononn of thhhhe rerererecocococordrdrd reveals that thedelay resulted from miscommumumuunininin cationononn aaaannndn theheheh nnnnecessisitytytyty oooof fff fufufulfilling certain prerequisitesto transfer. Because this equates at the mosososstttt totototo neglligence on the part of the government,this factor must "'be weighted less heavily but nevertheless should be considered since the

l i ibili f h i i h h h h

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2. Evidentiary Issues

lasted longer than negligence demonstrably causing such prejudice.").

Ward contends that he fulfilled the third prong by asserting his speedy trial concernsimmediately upon being brought before the magistrate in California for his out-of-districtproceedings and by reasserting these concerns at his initial appearance in the NorthernDistrict of Illinois. However, Ward asserted his right to a speedy trial after much of thealleged improper delay had occurred. See United States v. Deleon, 710 F.2d 1218, 1222(7th Cir. 1983). Ward knew of the charges against him and was represented by counselfrom the time the California charges were resolved, yet he did nothing to assert his speedytrial right until his out-of-district process hearing. This factor does not weigh strongly inWard's favor. Finally, with respect to the prejudice prong, Ward does not allege that thedelay impaired his ability to present his defense. Instead, Ward "asserts that the stress andanxiety of being incarcerated and awaiting transportation to Chicago following theconclusion of the California cases in October 1996, were oppressive and increased theanxiety and concern on his behalf." While this is a proper factor to consider under theprejudice prong, it is insufficient to tip the scales in Ward's favor. See Jackson, 542 F.2d at409 (stating that general allegations of anxiety and concern constitute only minimalprejudice, especially when unenhanced by an impairment in presenting a defense).Weighing the four factors, we find that Ward's Sixth Amendment right to a speedy trialwas not violated.

12

We review the district court's denial of Ward's Federal Rule of Criminal Procedure 48(b)claim for abuse of discretion. Deleon, 710 F.2d at 1223. Under Rule 48(b), "if there isunnecessary delay in bringing a defendant to trial, the court may dismiss the indictment,information or complaint." Fed. R. Crim. P. 48(b). Rule 48 "is not circumscribed by theSixth Amendment," Deleon, 710 F.2d at 1223; however, as the Eighth Circuit hasrecognized, it is driven "by the same general considerations as the Sixth Amendment."United States v. DeLuna, 763 F.2d 897, 923 (8th Cir. 1985). Incorporating our analysisabove and noting that there was no evidence of purposeful delay by the prosecution, wefind that the district court did not abuse its discretion in denying Ward's motion to dismissthe indictment pursuant to Rule 48(b). See, e.g., United States v. Sears, Roebuck & Co.,Inc., 877 F.2d 734, 739 (9th Cir. 1989) ("In general dismissal under Rule 48(b) isappropriate only where there is delay that is purposeful or oppressive." (internalquotations and citations omitted)).

13

Ward first challenges the district court's admission of testimony from two witnesses whowere cooperating with the government, Donald Marini and Cameron Wright, regardingdrug involvement with Ward prior to the charged conspiracy. Marini testified that hebegan selling and transporting drugs for Ward in approximately 1987 and continued to doso until he was arrested in 1993. Wright testified that he began purchasing cocaine fromWard when Wright was still in college and continued to purchase cocaine from Ward afterhis graduation from college in 1991. Eventually, Marini became a courier between Wardand the Hill operation in Chicago, and both Marini and Wright supervised couriers forWard in connection with the Hill conspiracy. Ward objected to the testimony regardingprior drug transactions between himself and Marini and Ward. The district courtoverruled Ward's objection, finding an inextricable link between the testimony and thecharged offenses and stating that the testimony about prior drug relationships was "highlyrelevant and probative." Ward argues that this ruling was erroneous under Rules 403 and404(b) of the Federal Rules of Evidence.2 We review for abuse of discretion. UnitedStates v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995).

14

Evidence of uncharged criminal activity is admissible if it is "'intricately related to thefacts of the case' before the court." United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.

15

2.2.2.. EEEEvidentiary IIIsssssues

proceedings and by reasserting these concerns at his initial appearance in the NorthernDistrict of Illinois. However, Ward asasasassesesesertrtrtrtedededed hhhhisisisis rrrrigii ht to a speedy trial after much of thealleged improper delay had oooocccc urrrrerrered.ddd Seeeeeee UUUnnnin ted ddd Sttttaata es v.. Deeeeleleleleonononon,,,, 710 F.2d 1218, 1222(7th Cir. 1983). WWWWarararard ddd knkk ew of fff thththt e chchchchargegegeges aggggaia nssttt t hihhh m anaa dd d wawawawas reprprprpreseseseseneee ted by counselfrom the time the eee CaCC lifofofofornia chaaargrgrgrges wererere e resosss lvedededed, yeeeettt he ddddiidi nothing ttoooo asaaa sert his speedytrial right t t t unuuu til his ooouo t-ofofofof-district prppp ocesesee s hearararing.g Thihihih s sss factctcttor doeeeessss noooot t t t weigigigigh strongly inWard'ssss ffffavorororor. Finalllllllyy,yy witititth hhh rrresppppecee tt t t tototo ttthehhh prejujujuudididid cececee pppproooong, Ward ddddoes nonnn t alallallelelelegegegege tttthahahh t thedelalalalayyyy imimimmpappp iredededed hiss aaaabibibibilityyy ttto o o o prprprpresent his defense. Insteadddd, WaWaWaWardrrr "asasasasseseseserrts that the stresesesess andananana xiety of beingggg iiiincarararrcecececerrated and awaiting transportation to CChihihihicacacac gogogog fffolooo lowiiiingngngn thehehehecooncncncn lulululusisisisionoo of theeee CaCaCaCalifornia cases in October 1996, were oppressive and ddd incrcrcrreaseeeed ddd theeanxixixix ety ananana d cocococonnnncern on his behalalff.f." WhWhWhililile thththisisis iiisss aa a prprp oper factor to consisiiidededd r unununnddded r theeeprp ejududududicicicice prprprprooong, it is insuffiicicicieentt tto tip the scales in WWararrd'dd ss favor. See Jacksksksksonononon,,,, 545 2 F.2dddd aaaat409 (staaaatitititinnnng that general aalallel gations of anxiety and concernn ccconoo stitute only mmininininimalalallprprpp ejuddddicicii e, especially whhheen unenhanced by an impairment in presessenee ting a defensesesese).))WeWeWeWeigigigighihhh ng the four factcttoro s, we find that Ward's Sixth Amendment rigigight to a speedyyyy ttttrialwawawawas not violated.

WWWWe review the dissttrict court's denial of Ward's Federal Rule of Criminall PPPror cedureee 44448((((bbbb)claim for abuse of ddisiscretion. Deleoeon,n, 7771010 FF.2.2d d atat 1122223. Under Rule 48(b), ""ifif ttthere isunnecessary delay iinin bringing a a ddedefendnddaaant to trial, thhhe cocourururt t mamay dismiss thhe e ininndictment,information or commmplp aint." Fededd. R. Crim. P. 48(b). Rule 4888 ""isisis nnnototot cciririrccucumsmsccriibed by theeSixth Amendment,""" DeDeD leon, 7171100 F.F.2d aaatt 1223; however, ass thththe iEighghththh Circuit hasrecognized, it is drivennn "by thehe sssamame gegenenn ral considerationsss aas the e SiSiSixtxtx hh h Amendment."United States v. DeLunnna,a 7633 FFF.2. dd 897, 923 (8th Cir. 1985). InInIncococ rrprpororratatininng our analysisabove and noting that tththere wawasss no evividedence of purrpoposesesefufuful l dedeelalay byb tthehehe prosecution, weeeefind that the district coouurt didd nnnot abuse its dddisisccrc ettioionn n ininin dddenenenyiyiyingngn Wardd'd's motion to dismmmisisisisssssthe indictment pursuannnt t to Rululee e 48(b). Seeeeee,, e.e.e gg..,, UnUnUniititedede Statees s s vv. Seaarsrsrs, Roebuck & Co.,,,IInInI c., 877 F.2d 734, 733999 (9th Ciri .. 191 899)) ) ("("InI genneeral dismissal under RRRuuule 48(b) isapapapappropriate only wherrre there is dededelalal yy ttht at is purposeful or oppressivevee." (internalququququotototo ations and citatiooonsn omitted))))..

13

WaWWW rddd ffffirst challlllenene geges the didiiststririictct court's admissisioono of testimony from two wwwwititititnessssssssesee whohohowere coopeeerarararating witthhh ththe gogovevernrnrnment, Donaldd MMMarini and Cameron Wright, rererer gagagagardrdrdrdiiinggggdrdrdrdrug invnvnvnvololololvevvv mememement with WaWaWardrdr pprior to the chargeged dd conspiracy. Marini tessstitititififififiedededed thhhhat hehehehebebbb gaaan nnn sellininnng annnnd transporting drugs for Ward in approximately 1987 777 annnnd ddd contntntntininini ued totototo ddoooososososo untntntntilililil hhhhe eee was arresttedededed iiiin 1993. Wright testified that he began pururururchchchchasasassini g gg coccc cainininneeee frfrfrf omomomomWaWaWaardrdrr when WrWrWrWrigigigighthththt wwwwasaa stitititillllllll iiiin n n n coccc llege and continued to ppppurururu chchchchasasassee e e cococococainnnne eee fromomomom Ward d d d afaaa terhis gradadadduauuauatititition ffffrorrr m cococc llegggge ee e in 11119999991. EEEEveveveventntntntuauauauallllllly,y,y,y, MMMMaraararininini iii beeecacacacamemmm a courierrrr bbbetetetetwwweenenenen WWWWardand the Hilllll ooopeerarararatitititionooo in ChCCC icicccago,o,,, aaaandndndnd both Mariiiinininini andd Wriiiggghg t susususupeppp rvvvvisi eddd ccccououuuririririers forWard in connnnnecececectit on witititth h hh theeee HiHHH ll conooo spspsspiracy. WWWarrrdd d d objejeeectedddd to thhhhe teeeeststststimimimmonononony regardingprior drug transactittitions betwwwweeeeeenn hihihihimsmsmsmseele f anannd MaMaMaM rininiii andddd WWWarrrddd.d TTThehehee ddddiiisi trict courtoverruled Ward's objection, fifififindndnn ing an iinenenenextx riicacacacablbbb e linkkkk bbbbetetettweweweweenn ttthe testimony and thecharged offenses and stating that tt ththththeeee tttetestimmmmononononyyyy abababbouoououttt prior drug relationships was "highlyrelevant and probative." Ward argues that this ruling was erroneous under Rules 403 and404(b) of the Federal Rules of Evidence 2 We review for abuse of discretion United

14

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3. Cross-Examination of Donald Marini

1995) (quoting United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991)). Theadmissibility of such evidence is limited only by Rule 403 and is not subject to the limitingrequirements of Rule 404(b). Id. at 1102-03. In the present case, the testimony of Mariniand Wright was intricately related to the charged conspiracy because it showed how themen's relationship with Ward "began, its basis, and structure, and how the relationshipblossomed into the charged conspiracy." United States v. Zarnes, 33 F.3d 1454, 1469 (7thCir. 1994) (citing United States v. Diaz, 994 F.2d 393, 395 (7th Cir. 1993)). While it wasnot disputed that Ward knew Marini and Wright, the testimony regarding the prior drugtransactions was integral to the complete story of the charged conspiracy in that itoutlined the development of the relationship of trust between the men which led to theirrespective roles in the conspiracy. See Diaz, 994 F.2d at 395. Additionally, to furtherminimize the risk of unfair prejudice, the court gave limiting instructions during thetestimony of both Marini and Wright, instructing the jury to consider the informationregarding the prior activities only as background and with respect to the relationshipwhich existed between the parties. It is clear that the probative value of the testimonyoutweighed any potential for unfair prejudice. Therefore, the testimony was properlyadmitted "without regard to Rule 404(b)'s strictures," Zarnes, 33 F.3d at 1469, and thedistrict court did not abuse its discretion in allowing it.

Ward next argues that the district court erred in allowing evidence regarding Ward's useof false identification in the name of Jeffery Eugene Palmer. Our review is for abuse ofdiscretion. United States v. Aldaco, 201 F.3d 979, 985 (7th Cir. 2000). While Wardcontends that the district court failed to meet the requirements for admissibility underFed. R. Evid. 404(b), the evidence was not offered under Rule 404(b) but rather as directevidence to support the government's allegations that Ward furthered the conspiracy byusing aliases. Evidence was presented at trial that, on March 10, 1995, coconspiratorWilliam "Ikey" Hill was identified driving a black van registered to a Jeffery E. Palmer.Therefore, the false identification evidence was probative in that it showed a link betweenWard and members of the Hill conspiracy. Furthermore, the district court limited theinformation that was admitted to reduce the risk of unfair prejudice to Ward. The jury wastold only that Ward attempted to obtain a passport in the name of Jeffery Eugene Palmerand was not informed that Ward was arrested for this incident. Under thesecircumstances, the probative value of the false identification evidence outweighs any riskof unfair prejudice. The district court did not abuse its discretion in admitting theevidence, and Ward's claim fails.3

16

Ward asserts that the district court improperly restricted his defense by limiting thescope of his cross-examination of government witness Donald Marini. On cross-examination by Ward's counsel, Marini testified that, as a result of his cooperation, federalprosecutors helped to clear a warrant against Marini based on unrelated charges inCalifornia state court. Defense counsel then sought to question Marini as to the nature ofthe state charges, attempting to elicit the fact that the charges were based on allegations ofspousal and child abuse. The prosecutor objected, and following a sidebar, the courtsustained the objection. The court noted that the information regarding the nature of thecharges was highly inflammatory and irrelevant to the point being developed on cross-examination that Marini received a benefit for his cooperation. We review a district courtruling limiting cross-examination for abuse of discretion. Akinrinade, 61 F.3d at 1285.

17

As we have noted, "the sufficiency of cross- examination turns on whether the jury hadsufficient 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 thatthe district court's ruling prevented him from inquiring "as to the substantial benefit toMr. Marini as bearing on bias, motive and credibility." However, the district court allowed

18

3.3.3.3 CCCroooosssss -Examimiminanan tion of DoDoonananaldldl Marini

men s relationship with Ward began, its basis, and structure, and how the relationshipblossomed into the charged connnspspsppiracacacacy.yyy """" UnUnUnUnititititedededed Staaaatetetetesss s v.vvv Zarnes, 33 F.3d 1454, 1469 (7thCir. 1994) (citing United Statatatteesee v. DiDiDiDiaaza , 9999999 4 FFF.2ddd 393999 , 39555 (7thththth CCCCiriririr... 1993)). While it wasnot disputed that t t t WaWaWaWardrdrdrd knew MaMaMaM rinininini andndndd Wriririighg t,, tttthehhh tesee timomomoony regegegegarararardidididingnn the prior drugtransactions was iiiinnntn egrarararal to the ccccoomoo pletetetete stororrry offff thee cccchargrgrggeeed conspspspspiriiriracyyyy iniii that itoutlineddd tttthehehehe developopopopmeennnnt of ththththe reeeelationonoonship ooof trust t tt bebebebetweeee n thee e e mmmenn nn whww icccchhh led to theirrespeccccttttive rrolololo es in ththththe coonnnsnspiraaaccccy. SeSeSeS eee DDDDiaz, 9999994444 F.F.FF 2d2d2d2 aaaatt t 393939395.55 Addddddditionannn lly, ttttoo ffufuf rtrtrthehehh rmimimiininininimimimimizezezeze the rrrrisisisiskk ofofofof uuuunfnn aiaiaiairr r r prprprpr jjejudice, the court gave limiting iiiinsnsnn trucucuctititt ons duringngngng ttthetetetet stimmony of botttothhh MaMaMaMaririririni and Wright, instructing the jury to connnsisisisidedededer r r r ththththe innnfofofoformatatatationnregagagg rdddininining ggg the e e prprrioioioiorrr activities only as background and with respect to thhhhee ee relalalalatit onnnnshshshs ipwhhhhicicicichh exxxxiiiisted d d d bbebb tween the parttieieiess.s. IItt isis cclearar tthahhattt thththee e prp obative value of tttthheheh testimonyouo tweiiii hghedddd aany potential ffooror uunfair prejudice. Therefooreree,, ththt e testimony wasss s prprprpropoo erlyyadmittttttedededed """"without regardrdd tto Rule 404(b)'s strictures," Zarnees,s, 3333 F.3d at 146999,,, anaa ddd ththththedidididists rictctctct court did not abbubuse its discretion in allowing it.

WaW rd next argues ttthhhat the district court erred in allowing evidence e rerer garding Wardrdrdrd'ssss uuuuseseseseof ffffaalse identificationnn iin the name of Jeffery Eugene Palmer. Our revieww iiis s s for abuse ofooodidididissscretion. United SSttates v. Aldaco, 201 F.3d 979, 985 (7th Cir. 2000). Whhililileee Wardcontends that the diiists rict court faiaileled d tototo mmmeeeeeettt thththeee rereququq irements for admissibiililiittyt underrrrFed. R. Evid. 404(bb)b), the evidenenncce was not offered under RRRulule e 404(b) but rratathheher as directevidence to supporttt tthe governrnnment's allegations that Wardrdrd fffuruurththhererereded thhe conspiracy byyyyusing aliases. Evidencncee was prreesesenntted d ataat trial that, on Marcch h h 101 , 1919959595,, coconspiratorWilliam "Ikey" Hill waaas s identitififiiedede driiviviingnn a black van registeteterred tooo aaa JJJefefffeff ry E. Palmer.Therefore, the false iddeentificatattioioion n eve idence was probative iinn n thththatat iitt shshshowowwed a link betweeeeenWard and members of tthe Hillll ccconspiracacy. FFurtherrmomoorerere,, ththt e didid strictt ccoouo rt limited theinformation that was adddmitted d to reduce thheee ririsksks oof f ununnfaffairir ppprerer jujujudid ce to o WaW rd. The jury wwwwasasasatold only that Ward attteempted d ttot obtain n aaa papaasssssspopoporrtrt iin n ththt e namememe oof Jeefffffere y Eugene Palmememerananaand was not informed ttthhat Warddd wwwas aaarrrrreested foor this incident. Undererr tthesecicicicircumstances, the prroobative valalueuee ooof f f tthe false identification evidencncce e outweighs anyyyy riskofofoff uuuunfnnn air prejudice. TThhhe district cocoourururttt did d not abuse its discretion in adaadmitting theevidenenene ce, and Wardrdd''s's claim fails.33

161

Ward asserererertstt that thhheee didists rictct cccoourt improperlrlyy y restricted his defense by y yy lilll mimimimititititingngngng ttheeeesscscs opeee ofofofof hhhhisisisis crooooss-examinaatititiononon oooff gogogovevevernrnmemementntnt wwwititi ness Donald Marini. OnOnOnOn crorooosssss -exeee ammmminatioioioon byyyy WWWarararard'ddd s counsel, Marini testified that, as a result of hhhhisisisis coooooooopep raaatitititionoo , , ,, fefefefedededederararar lprprprprosoo ecececcututututoors heelped to clclclcleaeee r a warrant against Marini based on ununu rererr lateeeed ddd chhhhararara ges ininininCalilililifofofofornr ia ssstatatatatetete ccccouooo rtrtrtrt... Defefefefensnsnsseee e cococoununsel then sought to qqqqueueueueststststioioioi n MaMaMaMarini aaassss to tthehehehe nattturururure ofthe state hchchchara geeessss, atttttemeee ptttininining g g g totot elicit ththththeeee fafafafactctctt tttthahahahat ththtthe charrgegegees s ss wewww re basedddd ooon nn n alleeeegagagg tions ofspousal and dd chccc illddd d ababababuse. TTTTheeee prosesesesecucucucutottt r objectedddd,,, and d foff llowowowo ing gg aaa a sidedededebar, tttthehehehe courtsustained the obobobobjejejejectcctioioion.n.n.n Theeee ccccouououourtrtrtt nnnotototted that thttt e ininininformmmatiooonnnn regaggg rdddininining g g g ththththe nature of thecharges was highly inflammatatatatory anananand ddd irreelelll vantntntnt to the popopopoint bebbb innnng g g g dedededeveloped on cross-examination that Marini receivivivivedededed a benenennefefefefitititit forrr hhhhisisisis coopepepeperarararatitititioonon. We review a district courtruling limiting cross-examination for abussseeee ofofofof ddddiscretion. Akinrinade, 61 F.3d at 1285.

17

As we have noted "the sufficiency of cross examination turns on whether the jury had18

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4. Recusal

5. Closing Argument

Ward's counsel to elicit the fact that Marini received a benefit in the form of dismissal of astate warrant in exchange for his cooperation in the federal prosecution. This wassufficient 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 isconcerned to impose reasonable limits on such cross-examination based on concernsabout, among other things, harassment, prejudice, confusion of the issues, the witness'safety, or interrogation that is repetitive or only marginally relevant." Delaware v. VanArsdall, 475 U.S. 673, 679 (1986). The district court did not abuse its discretion inprohibiting defense counsel from inquiring into the nature of the state charges.

Following Ward's conviction but prior to sentencing, defense counsel became aware,through our opinion in In re Hatcher, 150 F.3d 631 (7th Cir. 1998), that Judge Kocoras'sson, John Kocoras, while acting as a third-year law student intern in the United StatesAttorney's Office for the Northern District of Illinois, had assisted in the trial of GangsterDisciple leader Larry Hoover. Acting under the authority of Northern District of IllinoisGeneral Rule 3.11, John Kocoras presented eight government witnesses during the Hoovertrial. Judge Kocoras attended the trial to observe his son's performance. One of thewitnesses presented by John Kocoras testified regarding the seizure of $364,000 fromWilliam Hill and a member of the Gangster Disciple street gang. Testimony regarding thisseizure was presented at Ward's trial as well. This was the only overlap between evidencepresented at the Hoover trial and that presented at Ward's trial.

19

Ward was convicted on December 19, 1997. Our Hatcher opinion was issued on May 13,1998. Based on the information revealed in Hatcher, Ward moved for Judge Kocoras'srecusal at his sentencing hearing on June 18, 1998. Judge Kocoras denied the motion. Onappeal, Ward argues that Judge Kocoras's presence at the Hoover trial and his son'sinvolvement in Hoover's prosecution created a conflict that required recusal or, at thevery least, disclosure.

20

Ward bases his argument in part on 28 U.S.C. sec. 455(a) which requires a judge to"disqualify himself in any proceeding in which his impartiality might reasonably bequestioned." The government argues that Ward waived his sec. 455(a) claim by failing topursue it prior to trial, citing United States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989),United States v. Bonds, 847 F.2d 1233, 1241 (7th Cir. 1988), and United States v.Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985). The application of these cases to thepresent situation is debatable because, given the sequence of events outlined above, it isclear that Ward did not discover the information upon which he based his motion forrecusal until after his trial was concluded. In the present case, we need not decide thewaiver issue because Ward's claim fails on its merits. Recusal is required under sec. 455(a)when a "judge's impartiality could be questioned by a reasonable, well-informedobserver." Hatcher, 150 F.3d at 637 (citation omitted). The single evidentiary overlapbetween Ward's case and the Hoover prosecution is insufficient to support even anappearance of impropriety. Ward's case is easily distinguishable from Hatcher, in whichboth cases were part of one large prosecution of a continuing criminal enterprise andinvolved "virtually the same offenses, committed by the same people." Id. at 638. Theconnection between Ward's case and the Hoover prosecution was not significant enoughto require recusal under sec. 455(a). To the extent that Ward asserts claims under 28U.S.C. sec. 455(b)(1) and (b)(5), these arguments were fully addressed and rejected inHatcher, id. at 635-37, and we will not reexamine them here. Recusal was not required.

21

Ward asserts that the prosecution committed reversible misconduct based on an alleged22

4. RRRRececee usalalalal

concerned to impose reasonable limits on such cross-examination based on concernsabout, among other things, harararasasassmssms enenenent,ttt pppprerererejujujujudididid cececec , cocococonfnfnfnfususususioi n of the issues, the witness'safety, or interrogation that isisisis reppetetetetitiii ive e e ooor oooonly mamamamarginallyllyly rrrrelelelelevvvvanananant." Delaware v. VanArsdall, 475 U.S.... 676767673,3,,, 679 (19986868686). TTTThe ddddistricicici t coooouruuu t dididid d nononotttt abusssseeee ititittss ss didididiscretion inprohibiting defensnsnssee coununuu sel frommmm iinquiiiirirrr ng intnnn o ththhhe nananaatttureeee oooof the stttatatatateee chhhhararararges.

FFFoF llowing WaWaWaWardrdrdrd'''s' cononononviviviviction but prior to sentencing, defensesesese ccccounsel becamamamamee awawawawarrrreee,ethrorororougugugugh hhh our opinioioioon nnn iiiin In re Hatcher, 150 F.3d 631 (7th Cir. 1998)))), ththththatatatat Juddddgggeg Kococococorassss'ssssonnn,n Johhhhnnnn Koococococorararr s, while acting as aaa ttthihihirdrdd y-y-yeaeaearr r lal w student intern in the UnUUU ititittedededed SSSStatessssAttoooornrnrnrneyeyeyey's OOOOfffff ice for the Nortrtrtheheherrn District of Illinnoiioiss, hhhadaa assisted in the tttririririalaaa of GangsterrrDiD sciple leaeaeaeaddder Larry Hoovovovere . Acting under the authorityy oofff NoNN rthern Districtt t t ooof IllinnnnoioioioisGeneraaaallll Rule 3.11, John n n KKocoras presented eight governmentt wwwititi nesses during ththththe HoHoHoH ovvverereretrtrtrtriaiaiaial.l.l.l. JJJJudge Kocoras atttttended the trial to observe his son's performmmanaa ce. One of tthehehehewiwww tnesses presented bbyby John Kocoras testified regarding the seizure ofofo $364,000 frfrfrromomomomWiWiWiilllllll iam Hill and a mmeemember of the Gangster Disciple street gang. Testimmonononyy regardingg gg thissssseseseeiiiizure was presenteeed d at Ward's trial as well. This was the only overlap bettwweween evideeenncn eeeepresented at the Hoooover trial and d ththatat pppreresesentnteded aat t WaW rd's trial.

19

Ward was conviccttede on Dececeemmbm er 19, 1997. Our Hatcheerr ooopipip niniionono wwwasasas iiissssssuueueddd on May 11113,3,3,3,1998. Based on the iiinfnformatioonn revvealeleled in Hatcher, Wardd mmmovovededd ffooror Judge Kocoras'srecusal at his sentenciining hearrininng g g onn Junnne 18, 1998. Judge KoKoKoccorass dededenininiedee the motion. Onnnnappeal, Ward argues thhhaat Juddgegee KKoco oras's presence at the HHoooooovevev rrr trtriaiai l l anannd his son'sinvolvement in Hooveerr's proseeccution crcreated a confnflilictct thaat t rerer quiriri ededed rrecececusal or, at thevery least, disclosure.

20

Ward bases his argummment in pppara t on 22888 U.UU.S.S.S C.C.C. sseecec. 454555(a) wwhihih chc reqequiuu res a judge to"d"d"d"disqualify himself in aaanny proceedededinini g g ininin which hhiis impartiality mightt rrreasonably bequqqquestioned." The goveernment arrgugueseses ttthhat Ward waived his sec. 455(a(aa) claim by failingngngng topursrsrssueuuu it prior to trialalal,, citing Uniteteeddd StStStata es v. Troxell, 887 F.2d 8330,0, 88833 (7th Cir. 198999 9)9))),Unittttedeee States v. Bononondds, 847 F.2d 112323233,3, 1241 (7th Cir. 191919888888))), aaandndnd UUUnited States v.Baaaalilililistststtririririeeree i, 779 FFF.2.2dd 1191, 12040404-0- 5 5 (7th Cir. 1985).) TThhhe application of these caseeeesss s to theheheheprprprpresent sisisis tuation isisis ddebatablelee bbececcaause, given the seeeqquence of events outlined ababababove,e,e,e, it isclear that WWWWaraaa d did nonoot t t did sccovovererr tthe informationonn uupon which he based his mototototioii n n n n fofofoforrerererecusaaaal l l l ununununtittt l afafafaftettt r his triaalll wawaw s concluded. In thee prpp esent case, we need noonootttt dedededecicicidddde ttthehehehewawww ivvvereee issueueueue bececccause Ward's claim fails on its merits. Recusal is requirededdd uuunderererr ssec. 45455455(5(5(5(a)a)a)a)whwhwhwhennnn aaaa "jujujujuddge's iimpartrtrtrtiaiaiaiality could be questioned by a reasonable,,, , weweww lllll-i-i-i-inffforororormeddddobbbbseseseserver." HHHHatatatatchchchcherererer, 15111 0 F.F.F.F.3d3d3d3d aaaat 637 (citation omitted). ThThhhe e e e sisisisingggglelelele eeeevidedeeentnnn iaryryryry overllllapapapapbetweeeennn WaWaWaWardrdrdd's's's's case e e aaand ththththe HoHoHoHooverr pppprorororosesesesecucucuutitititionononon iiissss ininini suffffficicicicieieieient to supporororort eveveveven aaaannnnappearanceee ooof immmmprprprpropooo rietetttyyyy. WWWWard'd'd'd'ss s s cacacacase iiis easilyyyy ddddiiisi tingngngnguishhhhabbbblelelele ffffrom m mm Hatctctccheheheher,r,r,r, iiiin whichboth cases wererereree ee pappp rt of f f f onooo e lalalalargrgrgge prprrprossseecution n ofo aa ccccontitiiinnun innngggg crimmmminalalalal eeeentntntntererererprise andinvolved "virtualllllly ththththe sameeee oooffffffffenenenenseeees,s,s,s commmmittttttttedee bbbbyy thhheeee samememee peoee plplplple.eee " Id. at 638. Theconnection between Ward's cacacaasesess and theheee HHHHooveveveverrr r proseccccututuutioioioon n n n waas not significant enoughto require recusal under sec. 455(5(5((a)a)a)a). ToTToT thehehehe eeeextxtxtxtennnnttt thththth ttat WWWard asserts claims under 28U.S.C. sec. 455(b)(1) and (b)(5), these arguments were fully addressed and rejected inHatcher id at 635 37 and we will not reexamine them here Recusal was not required

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B. Rodney Ellis

improper comment during its rebuttal closing argument. The comment at issue dealt withseveral photographs that law enforcement agents recovered from Ward when he wasarrested on the passport charges. The photographs, which were presented at trial, werefrom Ward's wedding and included shots of Donald Marini and Cameron Wright. Whenthey were seized from Ward, the photos were cut or folded in such a way as to highlightMarini and Wright, both of whom Ward knew were cooperating with the government bythis time.

The prosecutor did not mention the photographs in his initial closing argument. In hisclosing argument, defense counsel addressed the photos, calling them a "non-issue" andarguing that the photos only went to show the conceded fact that Ward, Wright, andMarini knew one another. A second Assistant United States' Attorney presented thegovernment's rebuttal argument. In response to defense counsel's proffered explanationfor the photos, she stated

23

The photos that he [Ward] has with him, when he's attempting to leave the country,apparently, Cameron Wright, Donald Marini, wedding pictures [sic].

24

[Defense counsel] would say, okay, it shows what good friends they are. Ladies andgentlemen, I believe that you could draw from this an inference it's something slightlymore sinister.

25

This man, he knows without a doubt--Robert Daniel Ward knows that this man iscooperating against him as of January of 1996. He knows that this man in the back seat ofthat car is cooperating against him in 1996. For the family album? I don't think so, and Idon't think the evidence indicates that. Defense counsel objected, targeting his objectionto "any sinister inference" and stating that there was no evidence to support theprosecutor's line of argument. The court responded, "Well, she may argue and the jurymay accept or reject any inferences to be drawn. She may argue." Ward raised the issue ofprosecutorial misconduct again in a motion for a new trial, which the district court denied.We review both the overruling of Ward's objection and the denial of the motion for a newtrial for abuse of discretion. United States v. Knox, 68 F.3d 990, 1000 (7th Cir. 1995).

26

Our analysis to assess allegations of prosecutorial misconduct during closing argumentis two-fold. United States v. Butler, 71 F.3d 243, 254 (7th Cir. 1995). The first step is toexamine the disputed comment in isolation to determine whether it was in fact improper.Id. If the comment was improper, we must then examine the comment in light of therecord as a whole to determine whether the defendant was deprived of a fair trial. Id. Asthe district court recognized, in closing argument, a prosecutor "may argue reasonableinferences from the evidence that the jury has seen and heard." United States v.Waldemer, 50 F.3d 1379, 1383 (7th Cir. 1995). While "innumerable factors may figure inthe reasonableness calculation," the most obvious considerations are "[w]hether theevidence bears logical and proximate connection to the point the prosecutor wishes toprove." Id. at 1384. It is also important to consider whether the prosecutor made "theargument solely to inflame the passions of the jury." Id. Given the circumstances of thepresent case, the argument was logically and proximately connected to the evidence.Moreover, the argument was not made solely to inflame the jury but rather in response toan explanation offered by defense counsel in his closing argument. The prosecutor'sargument was not so unreasonable as to deprive Ward of a fair trial. See id. at 1385.Ward's prosecutorial misconduct claim fails.

27

Ellis raises several challenges to the district court's determination of his sentence. Ellisfirst contends that the district court erred in its application of sec. 2S1.1(b) of the United

28

they were seized from Ward, the photos were cut or folded in such a way as to highlightMarini and Wright, both of whohohom m m m WaWaWaWardrdrdrd kkkknenenenew w w weweweere ccccoooooooopepepeperar ting with the government bythis time.

The prosecutorrrr did nnnnot mentiiiionoonon thehh pppphotoogggrg apppphhhsh inn n n hhhis ininininiiitial closing ararararguggg ment. In hisclosing arararrgugugugument, ddded fensnsnsnse counseellll addrdrdrresseddd d the photototo osooo , cacacalling thththhememmm aaaa "noooon-issue" andarguinnnngggg tthatttt tttthe phooootott s ononononlylylyly wenenenent totototo ssshohohohow theeee cococooncncnccedededededededd fact thatttt WWarrrd,ddd Wririririghghghght,ttt aaaandnnMaaaaririririnininin kkkknennn w onononone anannnotototother. AAAA sssseecece ond Assistant United Statttes's's' AAAAttorrrrneneneneyyyy presented thhheeeegogogog vernment's rebebebebuttaaaal l ll ararara gument. In response to defense counselelelel'ssss pppprooffffffferedddd eeeexplalalalanatitititionoofor r r r ththththeeee phphpphotos, shhhheeee sstated

23

ThThThThe e e e phphphphotosososos that he [Ward] ] ] hahahass with him, when hhe''e'ss atatattetet mpting to leave ththththeeee country,apparentlylylyly, Cameron Wrigigighhht, Donald Marini, wedding picctututurerer s [sic].

24

[D[D[D[ efefeffeense counsel] wowoouuld say, okay, it shows what good friends s thththey are. Ladiessss aaanddddgeg ntllllemen, I believe tthhahat you could draw from this an inference it'ss sssomoo ething slighghhhtltltltlyyyymomomomorerrr sinister.

25252525

This man, he knowwws without a doubt--Robert Daniel Ward knows that thhisis mmman iscooperating againsttt hhim as of Janunuuarararyyy ofofof 119999666. HHHeee knknknowows ththat this man in the bbback seattt ooooffffthat car is cooperattining against t hihihim in 1999 6. For the family alala bububum?m? II ddonon't tthihinknknk so, and Idon't think the evidddeence indiccatatates that. Defense counsel objbjjececectteted,d,d ttarara geting his objectionnnnto "any sinister inferenennce" annd d ststattiing thththat there was no evididdeeence ttooo suusupppp ort theprosecutor's line of argrgguument.t TTThehe cououurtr responded, "Well, ssshhe mmmayayay aaargrguueu and the jurymay accept or reject annyny infereeencees to be drawn. Shehe may argrgrguuue."." WWWarara d d rrraised the issue oooofprosecutorial miscondduuct agaaininin in a motionn ffor a nnewew tttriririalalal,, whhhiich the diddistrict court denieeeed.d.d.dWe review both the oveeerrulinng gg of Ward's obobobjejej ctctc ioion n ananand d d ththe e deded ninin ala of ththhee motion for a newewewewtrt ial for abuse of discreetetion. Unininited Statteseses vv.. KnKnKnoxoxox, 68688 FF.3d 999900, 1000000 (7th Cir. 1995).

26

Our analysis to asseess allegatioonsnsns oof f f pprosecutorial misconduct durrinining closing argumemmm ntisisiss ttttwwwwo-fold. United Sttaaates v. Butlererr,,, 717171 FF.3d 243, 254 (7th Cir. 1995)).. TThe first step iiissss toexammmminii e the disputtededed comment in n isisisolololataa ion to determinenene wwwheheththerer iiittt was in fact imprprprpropopopo erererer....Idd... IfIfIIf tttthehhh commeenntnt was improopeper, we must then exammininine the comment in light of f f ththththererererecocococord aaaas sss a whole e totot ddetermiminnene wwwheheh ther the defendadaannnt was deprived of a fair triaiaiaialll. Id.ddd Asthe distririiictctctct ccccourt recccogogogninized,d, iin nn cclclosing argumentntt, a prosecutor "may argue reeeeasa ononnonabababableinininnferencncncceseseses froooom mmm the evididdenenencece thah t the jury has sseeeen and heard." United Statatatatetetetess v.vvvWaWWW lddddeeeemer,,, 50 FFFF.3d 1379, 1383883 (((7t7thhh CiCiCir. 119999 )5)5). WWWhile "innumerable factotototors mmmmayayaya figurrrre eee inththththe rerereeasa onononnaaablenenenen ssss ccccalalalalcuccc lation," the most obvious considerationsss aaaarererere """[www]h]h]h]hetheeer r r r ththththeeeeevvvvidididi ence beaarsrsrsrs llllogogogogicicicicalaaa andndndnd pppprororoximate connection to the pointntntnt tttthehehehe pppproseeeecccuc tooorrrr wiww shhhes ttttooooprovveeee." IdIdIdId. atatatt 11113838383 4. IItt tt is alslslsl o immmmpopopoportrtrtrtanananantttt to connnsisisideeeer r r r whwhwhwhetetetetheheheher r r r the prrrrooso ecutututtorooo mmmmaada e e "t"t"t"thhhheargument sssooloo elyyyy to iiiinfnfnfn lamemememe tttthehhh pasaasassisissionoo s ofoof the jurururury.yyy " Idd. Givevv n nnn ththththe circrccummststststanananancecececesss of thepresent caseee, thttht e argumemememennt wwwwas loggiiicicalalalally and ppproxixixiximmmam teeeelyl cononoo nectctctc ed ttttooo o thhee e e eeeve idence.Moreover, the ararrrgugugugumememem nt wasasass nnnnotototot mmmmadadddee solely ttttooo inflflff ame e ee the jujujuryyy bbuttt rrrratatatthhhher in response toan explanation offered by deeefefefefense cccounseeesellll in hhhhisisisis closingggg aaaarggggumumummenennnt.ttt The prosecutor'sargument was not so unreasonabababablelelele aaaas sss totototo ddepepepe riririvevevv WWWWarararard ddd ofofofo a fffair trial. See id. at 1385.Ward's prosecutorial misconduct claim fails.

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States Sentencing Guidelines ("the Guidelines"). Ellis further asserts that the district courtabused its discretion by sentencing him at the high end of his Guidelines range.

Ellis's 2S1.1(b) argument is two-fold. First, Ellis argues that the district court's decisionto apply both subsection (1) and subsection (2) of sec. 2S1.1(b) resulted in impermissibledouble counting, citing United States v. Atterson, 926 F.2d 649, 660 (7th Cir. 1991). Thepresent case, however, is distinguishable from Atterson. The district judge did not baseEllis's sec. 2S1.1(b)(2) enhancement on the street value of the quantity of drugs involvedin the conspiracy, but rather on actual instances of money laundering. See United States v.House, 110 F.3d 1281, 1285 n.3 (7th Cir. 1997) (distinguishing Atterson). There is noimpermissible double enhancement.

29

Alternatively, Ellis contends that the district court's finding under sec. 2S1.1(b)(2) thatthe value of funds laundered exceeded $2 million was unsupported by the evidence.4 Thedistrict court arrived at this value by holding Ellis responsible for (1) $750,000 to $1million laundered through Pocketown in 1993; (2) $1.5 million laundered into the JetStaraircraft, a seventy-two foot yacht, and a speed boat which accompanied the yacht; and (3)$1,107,000 laundered through "Reasons." At sentencing, Ellis challenged the inclusion ofthe amounts relating to the plane, the yacht and speed boat, and "Reasons." On appeal,Ellis challenges only the district court's valuation of Hill's investment in Pocketown andthe inclusion of amounts relating to the yacht and accompanying speed boat.

30

As previously noted, Ellis did not object to the valuation of the Pocketown investment atsentencing. Therefore, our review with respect to this issue is for plain error. UnitedStates v. Monem, 120 F.3d 645, 647 (7th Cir. 1997). At sentencing, the district courtadopted the $750,000 to $1 million value for the Pocketown investment. This value issupported by Michael Jefferson's trial testimony and by the calculations set out in thepresentence report. There is no plain error, and we turn to the inclusion of the value of theyacht and speed boat. Because Ellis objected to this inclusion at sentencing, we review forclear error. United States v. Gwiazdzinski, 141 F.3d 784, 788 (7th Cir. 1998). Under thisstandard, we will reverse "only if the district court's findings are without foundation in theevidence, such that we are 'left with the definite and firm conviction that a mistake hasbeen committed.'" House, 110 F.3d at 1283 (quoting United States v. Herrera, 54 F.3d348, 356 (7th Cir. 1995)). Under U.S.S.G. sec. 1B1.3(a)(1)(B), Ellis is liable for fundslaundered by his coconspirators as long as the acts were reasonably foreseeable. Ellisargues that there was no evidence that he ever used or even knew of the yacht; however,the trial testimony of Elisha Tapes supports a finding that Ellis at the very least hadknowledge of the yacht. Tapes described a trip to Houston, Texas which included Tapes,Nate Hill, Hill's mother, and Ellis, among others. The group flew to Texas on Hill's JetStaraircraft. During the flight, Hill boasted that he owned the plane and was proud of it. Tapesfurther testified that, at one point during the Houston trip, Ellis was present during aconversation in which Nate Hill, together with the man who arranged the yacht's purchase,were describing and bragging about it. The district court's inclusion of the value of theyacht and its accompanying speed boat in its sec. 2S1.1(b)(2) calculation was not clearlyerroneous.

31

Ellis's remaining challenge to his sentence is also unpersuasive. Ellis contends that thedistrict court abused its discretion by sentencing him at the high end of his Guidelinesrange, arguing that the district court's stated reasons for imposing a sentence at the top ofthe 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 courtprovided a detailed and internally consistent explanation to justify its decision. The courtrecognized that Ellis was not required to confess, but stated that a sentence at the high endof the Guidelines range was appropriate because Ellis failed to show "one ounce ofremorse, one ounce of acceptance of responsibility, one ounce of some sort of

32

to apply both subsection (1) and subsection (2) of sec. 2S1.1(b) resulted in impermissibledouble counting, citing United States ss s v.v.v.v. AAAAttttt erererersososos n,nnn 926 F.2d 649, 660 (7th Cir. 1991). Thepresent case, however, is diststststininiinguuuisisisishahahah bleee fffrf omoomo Attttererrerson. TTTThehe ddddisisisistrtrtrricicii t judge did not baseEllis's sec. 2S1.1(b(b(bb)()()()(2)2)2)2) enhanceeeememmm ntntntnt on thththt e stststreetttt vvvvalueee of f thththheeee quanananantititiitytytyty of drugs involvedin the conspiracy,y,, but rrrrataa her on aaaactual ininini stannnnccces ofofofo monoooneyyy llllaaaundering. SSSSeeeeeeee United States v.House, 110101010 F.3d 1222281, 1212121285 n.3333 (7t7t7t7th Ciiirrr.r 1997)77 (didd stinninnguggg ishihihh ng Atttttteeeersoooon)nnn . ThThThThere is noimpermmmmiiiissiiiblblblble doubbbbllell enhnhnhhanananancememmm ntntntnt...

AlAAA ternativelly,y,y,y, EEEElllllllis cccconononontettetends that the district court's finding gg ununununder sec. 2S1111.1.1.11(b(b(b(b)()()() 2)) tttthahhh tthe e e e vavavavalulululue of fundss llllauauauaundered exceeded $2 million was unsupportedddd bbbby tttthe evevevevidennnnceccc .4 TThehhhdiststststrict ccccooouo rtttt aaaarrrrrrrriiiived at this value bbbyyy hohoholdldldinininggg ElElE lil s responsible for (1) $777750555 ,000000000000 ttto $11milllllioioioion n n n lalalalaunnnndeddd red through Pooockckcketetown in 1993; (2)) $$$111.555 mim llion laundered ddd inininintott the JetStararraircraft, a a a a sssseventy-two fooototot yacht, and a speed boat whichh aaaccccc ompanied the yacacaca ht; annnnd d d d (3(3(3( ))))$1,107777,,000 laundered ttthhhrough "Reasons." At sentencing, Ellisis ccchahh llenged the inininnclccc ussssioioioi n ofofofofththththe ee e amamamamounts relating ttoo o the plane, the yacht and speed boat, and "ReReReasons." On appppppppealll,ElEEE lis challenges only tththe district court's valuation of Hill's investmennttt in Pocketownnnn aaaandnnnthhhe e e e inclusion of amouununts relating to the yacht and accompanying speedd d bobob at.

30

As previously notteted, Ellis did not object to the valuation of the Pocketowwn n inininvestmememeentnn atsentencing. Therefoorore, our revieeww w wiiwiththth rrespect to thththisisis iiissssssueueu is for plain error. UUUnitedStates v. Monem, 122020 F.3d 64455,5, 647 (7th Cir. 1997). At sennnteteencncn ininng,g,g tthehehe dddisisistrtrtriciict courtadopted the $750,0000000 to $1 mmmiilliono valala ue for the Pocketoownwnn iinvnvesestmtmtment. This value issupported by Michaelll Jefferssoonon's ttrir al tttese timony and by thhee e cccalcululatatatioioionnsn set out in thepresentence report. Thhhere is nnoo plplain error, and we turn to ththhe e ininclclclusussioionn ofo the value of ththhheeeyacht and speed boat. BBeB cause e ElE lis obbjejected to thiss iincnclul sionnn aat seentntenenencicicing, we review foooorclear error. United Statattes v. GwGwwiazdzinski, 141411 F.3d3d 77848484,, 7878788 8 (7(7(7tht Cir.. 1191 98). Under thisstandard, we will reversse "onllyy if the distrricicct tt cocourururt't't ss s fififindndingsgs aaarrere withohoouuut foundation in tttthhhheeveee idence, such that we aare 'leftt wwwith theee ddedefifiniinitetee aannd ffirirm convviciction tthhhat a mistake hassbebebebeen committed.'" Hoouuuse, 110 FF.3.33d d d atatt 11283 (quoting United States v.. Herrera, 54 F.3dddd34343448,888 356 (7th Cir. 199995)). Under UUU.SS.S S.S.S.G. sec. 1B1.3(a)(1)(B), Ellis iss llliable for fundsslaunnnndeddd red by his cocccoononspirators asas lllononong g as the acts weree rreasonablblyyy fofforeseeable. Elllllisiiiarguguguueeees that there wwawas no evidence ththhatat he ever used oror eeven kknew of the yacht; howowowoweveveveverererer,thhhhe e e e trtrtrtriaiaiai ll l l testimonnnyyy ofo Elisha TaTaTapepepess supports a findidingngng tthat Ellis at the very least hahahahadknknknknowledgdgdgdgeeee of the yyacaca hth . Tapepeess s dedeescscribed a trip too HHHouston, Texas which incluuuudeddd d TaTaTaTapes,Naate Hill, HHHilililill'lll s mothererr,, anand lElliliiss,s among others.s.. TThe group flew to Texas oooon nn HiHiHiHillllllll's's's's JJJJetStStStStaaraaaiaiaia rcraaaaftftftft. DuDuDuDuringnggng the flight, HHHilililll boboboasasasteteteddd thththatatat hhee e owowowned the plane and was prprprprouuuud d d d of it. TTTTapapapapesfufufuf rtheheheh r teststststified d d d thththatatatat,,,, at one point during the Houston trip, Ellis wasss prprprpressssenenene t duuuuriririringg aaaacococoonvn erererersasaasatttion iin which hh NaNaNaNate Hill, together with the man who arrrrrranannngggeg d ththththe yayayaachccc t's ppupupurccchahhh se,werererere dddescribibibibininining g g ananananddd bbbrb aggigigigingngg aaaabobobob utut it. The district coururururt'ttt ssss ininininclusssioioioionnn n of ttthhheh valalalaluueuu of ff ththththeyacht anddd itititts accoccc mpppmpaaanyingngngng sssspep ed boatttt inininin iiitstststs ssssecececec. 2S2S2S2S1.1(b)(2(2(2( )) )) cacacac lculation wawawawassss nooootttt clcc earlyerroneous.

31

Ellis's remaining chhhhallengeeee tototo hhhhisisisis ssssenenene tencncnce issss aaaalso unpepeeersrr uaaasssis veee. ElElElEllilililis contends that thedistrict court abused its discrereeetititit on by seeentntntnteeenciiiingngngng him att tt ththththeeee hihihihighghghgh end of his Guidelinesrange, arguing that the district couuurtrtrtrt's's's' stateteteed d dd rererereasasononononsss ffffor imposing a sentence at the top ofthe 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

32

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III. CONCLUSION

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 somepoint for you, in whatever oblique way you wanted to do it, to recognize that society washarmed by your activity." The district judge further noted that despite Ellis's insistencethat some of the witnesses lied, he thought the evidence against Ellis was "overwhelming."This explanation is both proper and sufficient to satisfy 18 U.S.C. sec. 3553(c). Therefore,as Ellis's sentence was imposed pursuant to the law and within the applicable Guidelinesrange, we lack jurisdiction to review the district court's placement of the sentence withinthe range. See United States v. Solis, 923 F.2d 548, 551 (7th Cir. 1991). Ellis's sentencingchallenges fail.

Ward's conviction is affirmed. Ellis's sentence is affirmed.33

Notes:

Marshals Serv ice regulations will not allow for the transportation of a prisoner unless theprisoner has tested negativ e for tuberculosis.

1

Fed. R. Ev id. 403 prov ides, "Although relev ant, ev idence may be excluded if its probativ ev alue is substantially outweighed by the danger of unfair prejudice, confusion of the issues,or misleading the jury , or by considerations of undue delay , waste of time, or needlesspresentation of cumulativ e ev idence." Under Fed. R. Ev id. 404(b), "Ev idence of other crimes,wrongs, or acts is not admissible to prov e the character of a person in order to show action inconformity therewith. It may , howev er, be admissible for other purposes, such as proof ofmotiv e, opportunity , intent, preparation, plan knowledge, identity , or absence of mistake oraccident."

2

Although counsel for Ward attempted to challenge additional ev identiary rulings at oralargument, these issues were not raised in his brief and are waiv ed. United States v . Magana,1 1 8 F.3d 1 1 7 3, 1 1 98 n.1 5 (7 th Cir. 1 997 ).

3

This finding resulted in a six-point enhancement in Ellis's base offense lev el under sec.2S1 .1 (b)(2).

4

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that some of the witnesses lied, he thought the evidence against Ellis was overwhelming.This explanation is both propepp r r r ananannd susususufffffffficicicicieeeentntntnt tttoooo satitititisfsfsfsfy y y y 181 U.S.C. sec. 3553(c). Therefore,as Ellis's sentence was imposesesesed dd puuursrsrsrsuuauu ntttt ttto thththt e laaaaw w w aaaand withttt innnn tttthehehehe aaaapplicable Guidelinesrange, we lack jurrrrisisisisdidididictctctction to rreveveveview www theeee distrrirr ct ccccouououo rt's'ss plaaacececeementnttnt ooof fff ththththee sentence withinthe range. See Uninininitett d StStStStates v. SoSoSoolil s, 923222 F.22ddd d 544448888, 55151515 (7tttth hhh Cir. 1999999991)11 . ElElElEllilililis's sentencingchallengngggeseseses ffffail.

WaWaWaWardrdrdrd's convictioooon nnn iiis affirmed. Ellis's sentence is affirmed.33

Notes:

MaMaMaarshals Serv ice regeggululations will not allow for the transportation ooof f a prisoner unlllleesese s thhhtheeeeprprisoner has tested nenegativ e for tuberculosis.

1

Fed. R. Ev id. 403 pprov ides, "Although relev ant, ev idence may be excludeddd iiif ff its probativiviviv ev alue is substantiiiala ly outweighed by the danger of unfair prejudice, confusiononn oof the issususuues,or misleading thee e jjury , or by coonsnsnsididi ererer tatatiioionsns oofff ununundudud e e delay ,y , waste of time, or neeeeedlesspresentation of cuuummulativ e eev iv iiddence."" Under Fed. R. Ev iddid. 4040404(4(b), "Ev idence e ofof ooother crimes,wrongs, or acts isss nnot admisssisisibblb e to prov e the character of a a a pepeperrsrsononn iinnn ororddder to show action iiiinnnconformity thereewiwiwith. It mayayy , hooweev ev ev er, be admissible for ooththther pururpopooses s, such as proof ofmotiv e, opportunityy ,y , intent,t, ppprerepap rar titition, plan knowledge, ididideentityty ,,, ororor aaabsb ence of mistake ororororaccident."

2222

Although counsel forrr Ward ataatttempted to chahallllengee aadddddditittiooionanan ll evev idi entiararry rulings at oralargument, these issuuues weree nnot raised in hihihiss brbrb ieief f ananand d ara e wawaiviviv eed. Unnititteed States v . Magannnna,1 1 8 F.3d 1 1 7 3, 1 1 9888 n.1 5 (7 t7 thhh Cir. 1 999997 )77 )..

3

This finding resulteeed in a six-ppoiointntt eeenhnhn ancement in Ellis's base offensee llev el under sec.2S222 1 .1 (b)(2).

4

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