United States v. David Lewisbey

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2236

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID LEWISBEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12-cr-354 — Ronald A. Guzmán, Judge.

____________________

ARGUED NOVEMBER 13, 2015 — DECIDED DECEMBER 9, 2016

____________________

Before POSNER, RIPPLE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. David Lewisbey was a Chicago-

based gunrunner who used a fake Indiana I.D. to buy guns

at Indiana gun shows and bring them back to Illinois to sell.

He came to the attention of law enforcement when he

bragged about his gunrunning exploits on Facebook. Federal

agents set up a sting, and Lewisbey was arrested and

charged with multiple counts of unlawfully transporting

and dealing firearms. A jury convicted him on all counts.

2 No. 14-2236

Lewisbey now argues that his attorney was operating

under a conflict of interest in violation of his Sixth Amend-

ment right to conflict-free counsel. He also challenges the

admission of incriminating text-message and Facebook

evidence at trial. Finally, he claims that the testimony of the

government’s cell-phone location expert did not satisfy the

requirements of Daubert v. Merrill Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993). We reject these arguments and affirm.

I. Background

David “Big Dave” Lewisbey conducted a thriving inter-

state gunrunning business from his home in Chicago. He

purchased guns at Indiana gun shows with a fake Indiana

I.D. and then sold them in Illinois. Federal authorities

learned of these activities when Lewisbey boasted about

them on his Facebook page; an undercover operation was

commenced. After Lewisbey sold a total of 43 guns to a

confidential informant in five separate controlled purchases,

law enforcement moved in and arrested him. He was

charged with one count of unlawful dealing in firearms

without a license, 18 U.S.C. § 922(a)(1)(A); two counts of

illegally transporting firearms across state lines, id.

§§ 922(a)(3), 924(a)(1)(D); and two counts of traveling across

state lines with intent to engage in the unlicensed dealing of

firearms, id. § 924(n).

Lewisbey’s defense at trial was that he was a gun collec-

tor rather than a gunrunner. The evidence showed other-

wise. The prosecution’s case included video recordings of

Lewisbey’s sales to the confidential informant, text messages

showing that Lewisbey habitually sold guns to purchasers

other than the confidential informant, and Facebook photos

depicting Lewisbey with lots of guns and large sums of

No. 14-2236 3

money. Michael Hall, a business contact of Lewisbey’s who

occasionally acted as his go-between, testified to the details

of some transactions. Another witness testified about selling

guns to Lewisbey in a McDonald’s parking lot in Indiana.

Multiple witnesses testified that they knew Lewisbey from

Indiana gun shows and knew that he used a fake Indiana

I.D. to illegally purchase guns. Finally, FBI Special Agent

Joseph Raschke testified, based on his analysis of Lewisbey’s

phone records, that calls were made from Lewisbey’s phones

at times and locations consistent with the illegal gun transac-

tions described by other witnesses. A jury returned a verdict

of guilty on all counts, and the judge sentenced Lewisbey to

200 months in prison.

Lewisbey was represented in the district court by Attor-

ney Beau Brindley. At the time Brindley was himself facing a

criminal contempt proceeding in the Central District of

Illinois. When questioned by the judge about the potential

conflict of interest, Lewisbey expressly waived any conflict

and consented to Brindley’s continuation as his counsel.

Following the entry of judgment, and soon after this appeal

was filed, the government sought a limited remand to

address a different conflict of interest stemming from a new

federal criminal investigation targeting Brindley. We re-

manded the case so the district judge could determine

whether a conflict of interest existed and obtain a waiver if

necessary. Brindley promptly withdrew and another attor-

ney took over Lewisbey’s appeal. With a new attorney in

place, the judge canceled the conflict hearing and the appeal

resumed.

4 No. 14-2236

II. Discussion

Lewisbey raises two arguments on appeal. First, he con-

tends that Brindley’s troubles with law enforcement created

an unconstitutional conflict of interest in violation of his

Sixth Amendment right to conflict-free counsel. Second, he

challenges the admission of his text messages, Facebook

posts, and the testimony of Special Agent Raschke, the

government’s cell-phone location expert.

A. Sixth Amendment Right to Conflict-Free Counsel

Because the Sixth Amendment protects the right to coun-

sel “whose undivided loyalties lie with the client,” a defend-

ant whose trial attorney was “burdened by a conflict of

interest” may be entitled to a new trial. United States v.

Barnes, 909 F.2d 1059, 1065 (7th Cir. 1990) (quotation marks

omitted) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).

Conflicts of interest in this context usually arise in cases

involving joint representation, but a conflict may also arise

“when a client’s interest conflicts with that of his attorney.”

United States v. Ellison, 798 F.2d 1102, 1106–07 (7th Cir. 1986).

Lewisbey argues that Brindley’s interests conflicted with

his own because Brindley was the subject of not one but two

criminal investigations, giving him an incentive to curry

favor with the government. To establish a violation of the

Sixth Amendment right to conflict-free counsel, the defend-

ant “must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.” Cuyler,

446 U.S. at 348. The mere possibility of a conflict is “insuffi-

cient to impugn a criminal conviction.” Id. at 350.

Because Lewisbey affirmatively waived any conflict aris-

ing from Brindley’s contempt proceeding, see United States v.

No. 14-2236 5

Lowry, 971 F.2d 55, 61 (7th Cir. 1992), his Sixth Amendment

claim can only relate to the second criminal investigation

against Brindley. But that investigation came to light after

Lewisbey was convicted and sentenced and his case had

already moved to this court. When Brindley learned that he

was the subject of this second investigation, he immediately

withdrew; a new, conflict-free attorney thereafter assumed

responsibility for the appeal. Brindley’s withdrawal cured

the potential conflict, removing any possible Sixth Amend-

ment concern.

B. Evidentiary Rulings

1. Text Messages and Facebook Posts

Over Lewisbey’s objection the judge allowed the gov-

ernment to introduce certain inculpatory text messages from

Lewisbey’s phones and posts from his Facebook page. We

review evidentiary rulings deferentially, for abuse of discre-

tion only. United States v. Schmitt, 770 F.3d 524, 532 (7th Cir.

2014), cert. denied, 135 S. Ct. 1537 (2015). “[W]e will defer to

the district court unless no reasonable person could adopt its

view. Even then, reversal only follows if admission of the

evidence affected the defendant’s substantial rights.” Id.

(citation and quotation marks omitted).

Lewisbey argues that the Facebook posts and the text

messages taken from two phones—a Samsung and an

iPhone—should have been excluded on both hearsay and

authentication grounds. See FED. R. EVID. 801, 901. He also

argues that the prejudicial impact of this evidence substan-

tially outweighs its limited probative value and thus the

evidence should have been excluded under Rule 403 of the

Federal Rules of Evidence.

6 No. 14-2236

The hearsay objection is a nonstarter. The text messages

Lewisbey sent are his own statements and as such are ex-

cluded from the definition of hearsay by Rule 801(d)(2)(A).

The messages he received were admitted not for the truth of

the matter asserted but instead to provide context for

Lewisbey’s own messages See FED. R. EVID. 801(c)(2); United

States v. Robinzine, 80 F.3d 246, 252 (7th Cir. 1996) (State-

ments offered not to prove “the truth of the matter asserted”

but for another legitimate purpose do “not even fit the

definition of hearsay.”). And Lewisbey admitted that the

Facebook posts were his, so like his “sent” text messages, the

posts qualify as nonhearsay admissions under

Rule 801(d)(2).

The authentication objection fares no better. To authenti-

cate the text messages, the government needed only to

“produce evidence sufficient to support a finding” that the

messages were actually sent and received by Lewisbey. FED.

R. EVID. 901(a). The government clearly did so. The iPhone

was confiscated from Lewisbey at the time of his arrest, and

in a recorded phone call from the jail, he told his mother that

the police took his phone. The Samsung device was recov-

ered from his bedroom at his parents’ home, a room that

both parents identified as belonging exclusively to him. The

“Properties” section of the iPhone described the phone as

“Big Dave’s,” and the contacts directory included infor-

mation for Lewisbey’s mother listed under the heading

“Mom,” and also the name and number of his former attor-

ney. Both phones listed contact information for the Texas

Home Depot stores where Lewisbey used to work. And the

confidential informant arranged gun sales with Lewisbey on

the Samsung phone. That’s more than enough to establish

that the two phones were indeed Lewisbey’s. See FED. R.

No. 14-2236 7

EVID. 901(b)(4) (“The appearance, contents, substance,

internal patterns, or other distinctive characteristics of the

item, taken together with all the circumstances,” can estab-

lish that “the item is what the proponent claims it is.”).

Lewisbey’s admission that the Facebook posts were his is

enough for authentication, but if more were needed, the

Facebook page lists Lewisbey’s nickname, his date of birth,

and his place of residence (Houston) where he lived prior to

Illinois. The email addresses associated with the Facebook

account correspond to both the email linked with Lewisbey’s

iPhone and his former email address at the University of

Kansas. The Facebook page contains more than 100 photos

of Lewisbey—including a profile picture—and many of the

Facebook photos match photos also found on Lewisbey’s

iPhone. The Facebook application on Lewisbey’s iPhone was

linked to this Facebook account. And messages on the

account discuss Lewisbey’s trips to gun shows in Fort

Wayne and Indianapolis on dates when gun shows actually

occurred at these locations.

Finally, Lewisbey argues that the text messages and

Facebook posts should have been excluded under Rule 403

because they were merely cumulative. This argument is

frivolous. The text messages and Facebook posts were

corroborative, not cumulative. Recall that Lewisbey’s de-

fense at trial was that he was just a gun collector. The text

messages and Facebook posts were admitted to rebut this

defense by corroborating the witnesses who testified about

Lewisbey’s gunrunning activities. The evidence was neither

needlessly cumulative nor unfairly prejudicial and was

properly admitted.

8 No. 14-2236

2. Cell-Phone Expert Testimony

Finally, Lewisbey challenges the judge’s decision to allow

Special Agent Raschke to testify about Lewisbey’s phone

records. Agent Raschke explained that Lewisbey’s phone

records showed calls made at places and times that corre-

sponded to the testimony of the other prosecution witnesses.

Lewisbey claims that this testimony did not meet the re-

quirements of expert testimony under Rule 702 of the Feder-

al Rules of Evidence, which requires that

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of

fact to understand the evidence or to determine

a fact in issue;

(b) the testimony is based on sufficient facts

or data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert has reliably applied the prin-

ciples and methods to the facts of the case.

Under the familiar framework established in Daubert, the

district judge consults a nonexhaustive list of factors to

determine whether the requirements of Rule 702 are met;

these include: (1) whether the expert’s technique or theory is

testable or has been tested; (2) whether the technique or

theory has been subject to peer review and publication;

(3) the known or potential rate of error in applying the

technique or theory; (4) whether standards and controls exist

and were maintained; and (5) whether the technique or

theory is generally accepted in the scientific community.

509 U.S. at 593–94. The court’s gatekeeping function applies

No. 14-2236 9

to all expert testimony and not just scientific expert testimo-

ny. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–49 (1999).

On appeal we ask first whether the judge applied the proper

framework. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827,

835 (7th Cir. 2015). If the judge did so, then we review the

decision to admit the expert’s testimony for abuse of discre-

tion. Id.

The record reflects that the judge conducted a thorough

Daubert analysis of Agent Raschke’s proposed testimony and

soundly exercised his discretion to admit it. Using call

records and cell towers to determine the general location of a

phone at specific times is a well-accepted, reliable methodol-

ogy. See, e.g., Rick Ayers, Sam Brothers & Wayne Jansen,

Nat’l Inst. of Standards & Tech., Guidelines on Mobile Device

Forensics, § 6.3 at 54 (2014), http://nvlpubs.nist.gov/

nistpubs/SpecialPublications/NIST.SP.800-101r1.pdf (“Call

detail records can also be used with cell site tower infor-

mation obtained from the service provider to translate cell

identifiers into geographic locations for the cells involved

and identify the general locale from which calls were

placed.”); United States v. Jones, 918 F. Supp. 2d 1, 5 (D.D.C.

2013) (“[T]he use of cell phone location records to determine

the general location of a cell phone has been widely accepted

by numerous federal courts.”). With 350 hours of training in

the systems used by the relevant network service providers,

Agent Raschke had ample expertise in this methodology.

And the judge also appropriately recognized the limits of

this technique by barring the agent from couching his testi-

mony in terms that would suggest that he could pinpoint the

exact location of Lewisbey’s phones. We find no abuse of

discretion.

10 No. 14-2236

We note in closing that no evidentiary error requires re-

versal unless it affected the defendant’s substantial rights;

this in turn requires that “the average juror would have

found the prosecution’s case significantly less persuasive

absent the erroneous evidentiary ruling.” United States v.

Trudeau, 812 F.3d 578, 590 (7th Cir. 2016). The record con-

tains prodigious evidence of Lewisbey’s guilt. We’re confi-

dent that none of the claimed evidentiary errors—if indeed

they were errors—had a significant effect on the jury’s

verdict.

AFFIRMED.