The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2948
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOB BRUMLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 CR 146--John D. Tinder, Judge.
Argued January 20, 2000--Decided July 12, 2000
Before COFFEY, MANION and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Bob
Brumley of conspiracy to possess with intent to
distribute methamphetamine, in violation of 21
U.S.C. sec. 841(a)(1). Brumley challenges both
his conviction and his sentence on a number of
grounds, contending that his confession was
involuntary, that he was entitled to a new trial
on the basis of newly discovered evidence, that
a DEA agent was erroneously allowed to give
expert testimony, that the indictment was flawed,
and that the disparity between Brumley’s sentence
and that of his co-conspirators justified a
downward departure for his sentence. We affirm.
I.
In January 1997, Bob Brumley introduced Ralph
Meade to Jack Bishop at a party at Brumley’s
home. Later, Brumley asked Meade if he could
supply Brumley with methamphetamine, telling
Meade that Bishop was capable of selling large
quantities of the drug. Meade apparently
responded favorably because Brumley then told
Bishop that Meade could supply unlimited amounts
of methamphetamine. Thereafter, Brumley served as
a middleman between Meade and Bishop. On
approximately six occasions between January 1997
and October 1998, Brumley supplied Meade with
cash and sometimes with rental cars so that Meade
could travel to California to purchase
methamphetamine. When Meade returned to Indiana,
Brumley typically picked the drugs up from
Meade’s house and delivered them to Bishop, who
sold the drugs locally. Brumley was a user as
well as a dealer, and accepted both
methamphetamine and cash in payment for his role
in the arrangement. Apparently, he helped himself
to a little too much of the take, and Meade and
Bishop decided to cut him out of the loop when
they discovered he had withheld three pounds of
methamphetamine from Bishop. Meade and Bishop
continued to provide Brumley with drugs to keep
him quiet, but Meade began making deliveries
directly to Bishop. All tolled, Meade transported
approximately 28 pounds of methamphetamine from
California to Indiana, with 20 pounds being
funneled through Brumley and the rest being
delivered directly to Bishop.
On Meade’s last road trip, a Texas police
officer stopped him for exceeding the posted
speed limit. The officer asked for consent to
search the vehicle, and Meade gave his consent.
The officer found in the car two partially opened
5-gallon detergent buckets, each containing
individually wrapped plastic bags filled with
methamphetamine. Meade was arrested and decided
to cooperate with law enforcement. He identified
his California source, and agreed to make a
controlled delivery to Bishop, but did not
mention Brumley out of friendship. Bishop was
arrested as a result of the controlled delivery
and he also decided to cooperate with law
enforcement. Bishop implicated Brumley and told
the officers that Brumley carried a gun on
occasion when delivering methamphetamine to
Bishop’s home. Meade ultimately implicated
Brumley as well, telling the officers that
Brumley acted as a middleman.
Shortly after these arrests, DEA agents executed
a search warrant at Brumley’s home in Indiana.
The agents recovered methamphetamine, scales,
cash, and two handguns, one in the house and
another in a truck parked in the garage. They
also recovered a slip of paper containing the
phone number of Meade’s source in California. The
agents advised Brumley of his Miranda rights, and
Brumley was cooperative throughout the search.
Brumley was arrested and taken to DEA
headquarters. Approximately three and a half
hours after the agents began the search at
Brumley’s home, two agents began to interrogate
Brumley. Although Brumley later disputed this
point, the agents testified that they read
Brumley his Miranda rights once again, and that
Brumley then signed the waiver portion of the
Miranda form. Thereafter, Brumley made
inculpatory statements to the agents that were
used against him at trial.
In the district court, Brumley moved to
suppress his post-arrest statement on the ground
that he had not knowingly and voluntarily waived
his Miranda rights. The district court held a
hearing and found that the agents read Brumley
his Miranda rights during the search of his house
and later at DEA headquarters. The court also
found that Brumley signed the waiver of rights
form, and had in fact knowingly and voluntarily
waived his Miranda rights. The case proceeded to
trial where the district court allowed a DEA
agent to testify as an expert on the issue of
what quantities of methamphetamine constituted
user and dealer amounts. Brumley objected to this
testimony on the ground that the agent was not
qualified to testify as an expert. After
requiring additional voir dire of the witness,
the district court allowed the agent to testify
as an expert. The jury found Brumley guilty and
the court sentenced him to 151 months of
incarceration. His co-conspirators, who both
cooperated with the government, were sentenced to
considerably shorter terms of 71 months for Meade
and 63 months for Bishop. Brumley appeals.
II.
On appeal, Brumley contends that his confession
should have been suppressed at trial because he
did not knowingly and voluntarily waive his
Miranda rights and because his statement was made
in the course of plea negotiations and was
therefore inadmissable under Federal Rule of
Criminal Procedure 11(e)(6)(D). He also objects
to the DEA agent’s expert testimony because the
agent’s opinion was based on subjective belief
and not on any reliable methodology. Brumley
asserts that the agent’s opinion testimony was
highly prejudicial and did not assist the trier
of fact. Finally, Brumley complains that the
district court erred in sentencing him because
his maximum sentence should have been controlled
by 18 U.S.C. sec. 371 due to an ambiguity in the
indictment, and because the district court
refused to recognize that the disparity between
his sentence and that of his co-conspirators was
a valid basis to depart downward.
A.
"We review de novo a district court’s
determination of whether a Miranda waiver was
knowing and voluntary." United States v.
Schwensow, 151 F.3d 650, 659 (7th Cir. 1998),
cert. denied, 525 U.S. 1059 (1998). We review
findings of historical fact deferentially,
however, and reverse only for clear error. Id.
Brumley complains that the district court erred
in finding that he knowingly and voluntarily
waived his Miranda rights. At the suppression
hearing, Brumley denied that the agents read him
his rights when they executed the search warrant
at his home, and testified that he did not recall
seeing or signing the Miranda waiver form at the
DEA office where he was questioned a few hours
later. The agents, of course, told a different
story and the district court found the agents
more credible.
Normally, that observation would end our
inquiry, but here Brumley raises what he
characterizes as a newly discovered fact that he
claims calls the agents’ credibility into
question. At the suppression hearing, Brumley
admitted that the signature on the Miranda waiver
appeared to be a copy of his signature (he was
shown a photocopy of the form at the hearing),
but denied having signed the form. After trial,
he requested that the court allow a handwriting
expert to examine the document. Over the
government’s objection, the court allowed the
expert to examine the original waiver form.
Brumley’s own expert confirmed that the signature
on the form was indeed Brumley’s, but the expert
found other marks on the document that could have
been attempts to alter the form. In particular,
there was evidence that someone had changed the
"taken into custody" time on the form, and there
were also ink touch-ups that the expert believed
were an attempt to match ink colors. The expert
also identified indented writing on the face of
the document in three different places, but was
unable to identify what the writing said without
further testing. Brumley moved for further
testing of the document, theorizing that he
signed the document, if at all, as part of a
stack of documents he signed while in court one
day. He also moved for a new trial as a result of
this newly discovered evidence. The district
court denied the motion for further testing, and
also denied the motion for a new trial. Brumley
now argues that the district court abused its
discretion in refusing to allow further testing
of the Miranda form and also erred in refusing
his request for a new trial.
The decision whether to grant a new trial is
within the discretion of the district court.
United States v. Gonzalez, 93 F.3d 311, 315 (7th
Cir. 1996). Because he is relying on newly
discovered evidence, Brumley must show that he
became aware of the evidence only after the
trial, that he could not have discovered the
evidence by due diligence any sooner, that the
evidence is material and that the evidence would
probably lead to an acquittal in the event of a
new trial. Id.; United States v. Fruth, 36 F.3d
649, 652 (7th Cir. 1994), cert. denied, 513 U.S.
1180 (1995). Brumley’s argument fails on at least
the first two prongs of the test for newly
discovered evidence because Brumley himself
surely knew before trial whether or not he had
knowingly signed a waiver of his Miranda rights.
He knew from the time of the suppression hearing
at the latest that the government intended to
rely on that written waiver. He could have moved
to examine the document before trial but did not
do so. The district court generously allowed him
to examine the form after trial, but the court
was under no obligation to offer even more post-
trial discovery given Brumley’s lack of diligence
before trial. Brumley makes no attempt on appeal
to explain this lack of diligence. The court was
within its discretion to deny the motion for a
new trial based on Brumley’s lack of diligence in
pursuing this evidentiary lead.
Brumley also contends that his confession was
inadmissable because it was made in the course of
plea negotiations. Federal Rule of Criminal
Procedure 11(e)(6)(D) provides that statements
made in the course of plea discussions with an
attorney for the government which do not result
in a plea of guilty or which result in a plea of
guilty later withdrawn are not admissible against
the defendant who participated in the plea
discussions. Brumley did not confess to a
government lawyer; he confessed to DEA agents. He
argues, however, that the agents were acting with
apparent authority for the United States
Attorney’s Office when they told Brumley they
would help him if he helped them. Brumley
contends that the agents acted as if they had
authority to control the outcome of the case,
that they offered his wife immunity if she would
cooperate against her husband, and that the
agents acted as if Brumley’s cooperation would
lead to a plea agreement disposing of the case.
Brumley did not raise this issue before the
district court and therefore must pass the high
hurdle of proving that the district court
committed plain error. United States v. Kincaid,
2000 WL 626728, *5 (7th Cir. May 16, 2000). A
party must raise and develop an argument before
the district court or in its motions in order to
provide the district court with an opportunity to
consider all matters before it. Id. Because
Brumley deprived the court of this opportunity,
we deem this issue forfeited, and we review only
for plain error. Id. Plain error review allows us
to correct particularly egregious errors for the
purpose of preventing a miscarriage of justice.
Id. Brumley relies on a footnote in an Eighth
Circuit case in support of his claim that Rule
11(e)(6)(D) applies to discussions with DEA
agents as well as discussions with government
attorneys if the agents represent that they are
working on behalf of the United States Attorney’s
Office. See United States v. Millard, 139 F.3d
1200, 1205 n.4 (8th Cir. 1998), cert. denied, 525
U.S. 949 (1998). In that case, the agent told the
defendant that he was working directly with a
particular Assistant United States Attorney
("AUSA"), that he had spoken to the AUSA about
cooperation, and that if the defendant was
interested in cooperating with the government,
"we would offer him a particular deal." Moreover,
while the agent was speaking with the defendant,
he telephoned the AUSA to discuss what kind of
deal could be offered to the defendant. Id.
Because Brumley did not raise this issue before
the district court, the court never had an
opportunity to rule on the factual much less the
legal basis for Brumley’s claim. We are left with
Brumley’s version of what the agents told him.
Even if we take Brumley’s version of events as
true, however, we reject this claim for two
reasons. First, Millard is distinguishable. The
agent in that case made affirmative
representations to the defendant that the agent
was working with the AUSA to offer a particular
deal if the defendant cooperated. Here, the
agents made general statements that law
enforcement officers commonly make, that
cooperation would likely lead to a better outcome
for the defendant. These statements were both
true and innocuous. Second, and more importantly,
our case law rejects this kind of argument. We
pointed out in United States v. Springs, 17 F.3d
192, 195 (7th Cir. 1994), cert. denied, 513 U.S.
955 (1994), that the phrase "with an attorney for
the government" was added to Rule 11(e) (6)(D) in
1979 precisely to prevent the argument that a
voluntary statement made to law enforcement is
rendered inadmissable merely because it was made
in the hope of obtaining leniency by a plea. See
also United States v. Lewis, 117 F.3d 980, 984
(7th Cir. 1997), cert. denied, 522 U.S. 1035
(1997) (Rule 11(e)(6) applies only to statements
made to government attorneys and not to
statements made to law enforcement agents). The
agents here did not, even by Brumley’s account,
purport to be acting on behalf of the United
States Attorney’s Office. There is no reason to
extend Rule 11(e)(6) under these facts, and the
district court did not commit plain error by
failing to suppress Brumley’s statements on this
basis.
B.
Brumley also objected to the admission of DEA
Agent Dan Schmidt’s testimony regarding what
amounts of methamphetamine constituted user
quantities and what amounts were dealer
quantities. Specifically, Brumley disputed the
agent’s conclusion that any amounts in excess of
one ounce were distribution as opposed to
personal use amounts. Brumley raises four
objections to the admission of this testimony.
First, the agent’s opinion was based on his
subjective belief or unsupported speculation.
Second, the agent’s opinion was not based on any
professionally sound or reliable underlying
methodology. Third, the agent was merely vouching
for the credibility of one of Brumley’s co-
conspirators. Fourth, the agent’s opinion
testimony was highly prejudicial but did not
assist the trier of fact in understanding the
evidence or determining a fact in issue.
Federal Rule of Evidence 702 specifies:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
The government sought to qualify Agent Schmidt as
an expert in the area of drug trafficking,
including packaging quantities, distribution
methods, and user quantities versus distribution
quantities. Agent Schmidt had approximately seven
years of law enforcement experience, much of it
involving investigations relating to narcotics
and other drugs, including methamphetamine. He
had, in the course of those investigations,
interviewed people he arrested who decided to
cooperate with the government. He testified that
through his investigations and experience, he
became familiar with how methamphetamine is
packaged and sold, including prices and
quantities. He testified that as a result of the
approximately one hundred methamphetamine
investigations in which he had participated, he
knew what quantities of methamphetamine were for
personal use and what quantities were dealer
amounts. On the basis of this testimony, the
district court allowed Agent Schmidt to testify
that, in his opinion, an ounce or more of
methamphetamine constituted a dealer quantity.
Because Brumley was charged with possession with
intent to distribute, possession of dealer
quantities was probative as to Brumley’s intent,
and the government indeed sought to use this
testimony to prove Brumley’s intent to
distribute.
The admission of expert testimony from technical
fields is governed by the same concerns and
criteria as the admission of scientific expert
testimony. Walker v. Soo Line Railroad Co., 208
F.3d 581, 590 (7th Cir. 2000). See also Kumho
Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167,
1174-76 (1999); Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 590 n.8
(1993). We review de novo "whether the district
court properly followed the framework set forth
in Daubert." Walker, 208 F.3d at 590 (citing
United States v. Hall, 165 F.3d 1095, 1101 (7th
Cir. 1999), cert. denied, 527 U.S. 1029 (1999)).
If we determine that the district court properly
applied the Daubert framework, we review the
district court’s decision to admit or exclude
expert testimony only for an abuse of discretion.
Walker, 208 F.3d at 590. The Supreme Court in
Kumho Tire explained that the Daubert
"gatekeeper" factors had to be adjusted to fit
the facts of the particular case at issue, with
the goal of testing the reliability of the expert
opinion. 119 S. Ct. at 1175. For example,
engineering testimony rests on scientific
foundations, but "[i]n other cases, the relevant
reliability concerns may focus upon personal
knowledge or experience." Id. The reason for this
needed flexibility is that there are many
different kinds of experts and many different
kinds of expertise, including experts in drug
terminology, handwriting analysis, land
valuation, agricultural practices, railroad
procedures, and so forth. Id.
The district court applied this flexible
approach by determining the extent and type of
experience that Agent Schmidt had in the area of
methamphetamine distribution. The court carefully
limited both the questioning and the agent’s
testimony to reflect only those areas in which
the agent had extensive experience and training,
and in which the jury would be aided by his
testimony. The district court therefore applied
the Daubert gatekeeping tests for relevance and
reliability and we will review the court’s
decision to admit this evidence for abuse of
discretion only. Addressing Brumley’s objections
seriatim, the record reveals that the agent’s
testimony was based not on his subjective belief
or unsupported speculation but rather on his
extensive experience investigating
methamphetamine distribution crimes. For example,
the agent testified that in his experience,
methamphetamine was sold on the streets of
Indiana during the relevant time frame for $100
per gram, and that there are approximately 28
grams in an ounce. From his experience, the agent
testified that an ounce or more of
methamphetamine constituted a dealer quantity. As
the district court pointed out, another expert
might disagree with this opinion, but the
disagreement does not render the opinion
inadmissable. Rather, Brumley was entitled to
cross-examine Agent Schmidt and to put on his own
expert to offer a counter opinion. That addresses
Brumley’s second objection as well, that Agent
Schmidt’s opinion was not based on any
professionally sound or reliable underlying
methodology. The opinion was based on his
extensive investigative experience, and Kumho
Tire explains that the reliability of different
kinds of expertise may be shown in different
ways.
Nor was the agent merely vouching for the
credibility of Meade, one of Brumley’s co-
conspirators who testified that Brumley
participated in the distribution ring. Meade
testified that Brumley once participated in a two
ounce sale of methamphetamine to a third party.
It is difficult to understand how the agent’s
testimony that two ounces is a dealer quantity
vouches for the credibility of Meade, and Brumley
does not adequately explain the connection, if
any exists. The agent’s testimony merely tended
to prove that if Brumley was in possession of two
ounces of methamphetamine, he was in possession
of a dealer quantity. Meade, on the other hand,
testified that Brumley actually sold the two
ounce quantity to another person. The agent’s
testimony was unrelated to Meade’s credibility.
Finally, Brumley complains that the evidence was
highly prejudicial and did not aid the jury. The
government responds that the evidence was proper
under Federal Rule of Evidence 704(b) because the
agent did not explicitly refer to Brumley’s
mental state, and the agent made clear through
his testimony that he did not possess special
knowledge of the defendant’s mental process, but
rather was basing the opinion on his expert
knowledge of criminal practices. Rule 704(b)
provides that an expert witness testifying with
respect to the mental state of a defendant in a
criminal case may not state an opinion or
inference as to whether the defendant did or did
not have the mental state constituting an element
of the crime charged because such ultimate issues
are for the trier of fact alone. We addressed a
very similar issue in United States v. Mancillas,
183 F.3d 682 (7th Cir. 1999), cert. denied, 120
S. Ct. 1271 (2000). At the trial in that case,
the government presented a hypothetical to a
testifying DEA agent, regarding a person
possessing a plastic bag containing 400 grams of
marijuana, a slip of paper bearing the notation
"420 g," a handgun, a scale, two pagers, a
cellular phone and $2440 in cash. After setting
forth these hypothetical facts, the government
asked the agent whether, in his opinion, the
marijuana was being held for distribution or
personal consumption. The agent testified that in
his opinion, the marijuana was being held for
distribution. 183 F.3d at 705. We held that such
testimony should not be excluded as long as it is
made clear, either by the court expressly or by
the nature of the examination, that the opinion
is based on the expert’s knowledge of common
criminal practices and not on some special
knowledge of the defendant’s mental state. Id.
Brumley disavows Rule 704(b), stating that his
objection is rather based on the fact that none
of Agent Schmidt’s experience or training was
related to distinguishing user quantities from
dealer quantities. However the argument is
framed, the result is the same. The district
court properly determined that Agent Schmidt had
expertise in the matter of distinguishing user
from dealer quantities, expertise gained through
his extensive experience investigating crimes of
this very nature. Brumley’s argument goes not to
the admissibility of this evidence but rather to
its weight, and he was free to cross-examine the
agent about the basis for his opinion. Through
cross-examination and testimony from his own
witness, Brumley was free to reveal any
weaknesses or errors in the agent’s opinion.
Because the district court carried out the
gatekeeper function appropriately and limited the
evidence to those areas in which the agent had
expertise gained through experience and training,
we affirm the admission of Agent Schmidt’s expert
testimony.
C.
Brumley asserts two grounds for error in his
sentence. First, he complains that the indictment
did not specify whether he was being charged
under 21 U.S.C. sec. 846, the drug conspiracy
statute, or 18 U.S.C. sec. 371, the general
conspiracy statute. The main difference in proof
between these two statutes is that under sec.
371, the government must prove an overt act in
furtherance of the conspiracy. The indictment,
which did not specify which conspiracy statute
applied, did allege overt acts in furtherance of
the conspiracy. Because of this ambiguity in the
indictment, Brumley contends that he should have
been sentenced under sec. 371, which has a
statutory maximum of 60 months. Section 846, on
the other hand, has a minimum sentence of 120
months, and thus the difference is significant.
Brumley also objects to the district court’s
refusal to entertain a downward departure in his
sentence based on the disparity in sentencing
between Brumley and his co-conspirators.
An error in the citation of the statute charged
in an indictment is not a ground for reversal
unless the error misled the defendant to the
defendant’s prejudice. Federal Rule of Criminal
Procedure 7(c)(3). The district court noted that
Brumley was not misled by the error because he
was informed at his initial hearing before a
magistrate that he faced a possible sentence of
ten years to life, and he also signed two
documents at that time that indicated he was
being charged under sec. 846. At trial, the
government proposed instructions citing sec. 846
and Brumley did not object to these instructions.
Indeed, the first time he brought the error to
the court’s attention was after trial. The
district court therefore concluded that Brumley
was not misled by the error. We agree. There was
nothing in the record that would lead us to
believe Brumley was misled about the charges he
faced. Brumley complains that the ambiguity lies
in the general verdict that the jury returned
because the government alleged and proved overt
acts in furtherance of the conspiracy, which is
consistent with sec. 371. Because the elements of
both sec. 371 and sec. 846 were satisfied,
Brumley claims the court should be limited in
sentencing him to the maximum penalty under sec.
371. As the district court noted, the jury was
instructed that they need not find that Brumley
committed any overt acts in order to convict him.
There is thus no ambiguity as to which statute
Brumley was charged with or convicted under, and
any error or omission in the indictment was
harmless.
We turn finally to Brumley’s claim that the
district court erred in determining that the
disparity between Brumley’s sentence and Bishop’s
sentence was not a valid basis to depart
downward. Brumley maintains that there is an
unjustified disparity between his sentence and
Bishop’s sentence, caused by the government’s
conduct at Bishop’s sentencing hearing. At
Bishop’s detention hearing, the government urged
the court to find that a gun found in Bishop’s
possession was a dangerous weapon related to drug
dealing. After Bishop cooperated with the
government, the government urged the court at his
sentencing hearing to find that the gun was not
related to the drug crime but was rather a family
heirloom. As a result of that finding and other
factors relating to Bishop’s cooperation, Bishop
received a reduced sentence of 63 months,
considerably shorter than Brumley’s 151 month
sentence. At Brumley’s sentencing hearing, the
court found that the disparity was justified by
a proper application of the guidelines and
therefore the district court refused to depart
downward.
We lack jurisdiction to review a district
court’s discretionary refusal to depart downward
unless the sentence was imposed in violation of
the law, or was imposed as the result of an
incorrect application of the guidelines. United
States v. Winters, 117 F.3d 346, 348 (7th Cir.
1997), cert. denied, 522 U.S. 1063 (1998).
Brumley claims the district court made a legal
error in concluding that it could not depart on
the basis of a disparity in sentencing. But the
district court was clearly aware that it could
depart for an unjustified disparity, and found
that the disparity here was justified by the
factual circumstances of this particular case.
Such a discretionary ruling is not reviewable by
this Court. We note that the government cited our
opinion in United States v. McMutuary, 176 F.3d
959 (7th Cir. 1999), without noting that we
vacated that opinion several months before the
government filed its brief. See United States v.
McMutuary, 200 F.3d 499 (7th Cir. 1999). That
oversight does not change the analysis. In our
recently released revised opinion in McMutuary,
we did not change the core holding of United
States v. Meza, 127 F.3d 545 (7th Cir. 1996),
cert. denied, 522 U.S. 1139 (1998), that a
justified disparity can never serve as a basis
for a departure from the Guidelines sentencing
range. See United States v. McMutuary, 2000 WL
793990, *11 (7th Cir. June 21, 2000). We went
even further to say that, ordinarily, disparities
between the sentences of co-defendants should not
be considered a factor in the decision to depart
from the Guidelines. Id. Rather, we held, a
sentencing court should consider unjustified
disparities only in those cases where the
disparity exists between the defendant’s and all
other similar sentences imposed nationwide. Id.
That seals the case against Brumley, for his
sentence is the result of a straight-forward
application of the Guidelines. Even if he were
able to show that a disparity exists between his
sentence and Bishops’s, he cannot, therefore,
show that his sentence is disparate from the
sentences of defendants similarly convicted
throughout the United States.
AFFIRMED.