United States v. Bernard Foster

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3097

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

B ERNARD F OSTER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 316-2—Ronald A. Guzman, Judge.

A RGUED O CTOBER 25, 2012—D ECIDED N OVEMBER 28, 2012

Before F LAUM, M ANION, and R OVNER, Circuit Judges.

F LAUM, Circuit Judge. Bernard Foster sold crack cocaine

to a paid confidential informant (“CI”) through a series of

controlled buys facilitated by federal agents. Foster was

charged with several counts of knowingly and inten-

tionally distributing cocaine base, and a jury ultimately

convicted him on four separate counts. The district court

sentenced him to serve 240 months’ imprisonment and

10 years’ supervised release. He now appeals his con-

viction, arguing that the district court improperly ad-

2 No. 11-3097

mitted evidence in violation of the Confrontation Clause

and improperly rejected his request for a missing wit-

ness instruction. He also appeals his sentence, claiming

that the district court erred by not applying the Fair

Sentencing Act in the imposition of his sentence.

We affirm the defendant’s conviction and sentence.

I. Background

On four occasions in 2009, Foster sold crack cocaine to a

paid CI of the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”). The CI was also the defendant’s relative and

a convicted felon. Each of the four transactions was audio-

recorded, two were video-recorded, and all four were

monitored live by a team of ATF agents.

A. First Controlled Buy

On February 12, 2009, ATF agents met with the CI prior

to the first controlled buy from the defendant. Agents

searched the CI and his vehicle for firearms, narcotics,

and currency before the transaction and did not find

anything. Agents then provided him with $2,300 and

a scale, and directed the CI to purchase 63 grams of

crack cocaine from the defendant.

The CI arrived at the parking lot of a Popeye’s Chicken

restaurant located at 95th Street and Vincennes Avenue

at the pre-arranged time of the transaction, where he met

the defendant. ATF agents monitored the scene through

stationary surveillance. The defendant and the CI had a

No. 11-3097 3

recorded conversation inside of a vehicle, after which

the defendant approached a nearby red Dodge Charger

and then returned to the vehicle in which he and the

defendant were conversing. The defendant then told the

CI, “Alright. He said give him 17. For that, man. That’s

two. Two whole.” The CI responded, “(UI) That’s 56.

Supposed to be 60 . . . [q]uantity is off.” The defendant

responded “[g]ive me sixteen fifty. That’s why I say 17.”

After the conversation, the CI drove out of the parking lot

and traveled to a debriefing location. Agents met with

the CI at this location and took custody of the crack

cocaine, the scale, and the recording device that had

been provided to the CI prior to the transaction. The

agents again searched the CI and his vehicle for any

narcotics, firearms, or currency and did not recover

any. The purchased crack cocaine weighed approxi-

mately 54.9 grams.

B. Second Controlled Buy

On February 24, 2009, ATF agents again met with the

CI and searched him and his vehicle for narcotics, fire-

arms, and currency. Nothing was found. Agents provided

the CI with $2,550 to purchase 63 grams of crack cocaine

from Foster. Some agents went to set up surveillance at

the buy location, while others followed the CI to the

parking lot of Popeye’s Chicken at 95th Street and

Vincennes Avenue. En route, the agent and the CI made

at least two stops, including one in which the CI pulled

over and searched for his cell phone. At another point,

the CI pulled over and told the agent that he did not have

4 No. 11-3097

a scale. The agent provided him with a scale. The CI then

continued to the parking lot, and the defendant arrived

shortly afterward. The defendant and the CI discussed

the fact that the weight of the drugs had been off in

the February 12, 2009 transaction. The defendant then

left the CI’s vehicle, walked to a nearby barbershop,

and entered a Jeep. After exiting the Jeep, the de-

fendant returned to the CI’s vehicle. The CI and the

defendant then had the following exchange:

Foster: Here. Got it all?

CI: Yeah.

Foster: You okay?

CI: I’m okay, buddy.

Foster: Okay then. Why you always have nothin’ but

hundreds?

CI: ’Cause it’s easier to count.

Foster: This 18?

CI: Ye . . . yes, sir. And you got your 50.

Foster: Mmm-hmm. Now what you say you

wanted?

CI: A quarter key.

Foster: Alright. Alright. Quarter key?

CI: Uh, yeah. Give me a call. Give me a ring.

Foster: I’ll call you on it. With it.

Foster then exited the vehicle, and the CI drove to a pre-

arranged location. Agents followed the CI to the

No. 11-3097 5

debriefing spot, where they retrieved the crack cocaine,

as well as the scale, transmitter, and unexpended funds

that had been provided to the CI. Agents searched the

CI and his vehicle for any narcotics, firearms, or currency

and found none. The crack cocaine weighed 57.6 grams.

C. Third Controlled Buy

On March 20, 2009, ATF agents met with the CI to

prepare for the third controlled buy. Agents searched

the CI and his vehicle for narcotics, firearms, and

currency and found none. They provided the CI with

$2,200 to purchase crack cocaine from the defendant. In

addition to providing the CI with an audio-recording

device and transmitter, the agents also provided him with

a video-recording device. A surveillance team again

monitored the buy. After stopping at a gas station for

five or six minutes, the CI arrived at the Citgo parking

lot located at 99th Street and Vincennes Avenue. The

defendant walked over to the CI’s vehicle and spoke to

the CI. The defendant then drove out of the parking lot

and returned a short time later, re-approaching the CI’s

vehicle and engaging in another conversation with

him. The CI then exited the Citgo lot and traveled to the

debriefing location, where he met with ATF agents.

The agents retrieved the crack cocaine he purchased, as

well as the transmitter and recording devices. Agents

searched the CI and his vehicle for narcotics, firearms,

and currency and found none. The purchased crack

cocaine weighed approximately 64 grams.

6 No. 11-3097

D. Fourth Controlled Buy

On April 2, 2009, agents again met with the CI to

arrange a fourth controlled buy. Prior to the transaction,

the agents searched the CI and his vehicle for narcotics,

firearms, and currency and found none. Agents provided

the CI with $2,600 to purchase crack cocaine from the

defendant, as well as a scale, an audio/video recording

device, and a transmitter. Some agents again monitored

the predetermined buy location, the Popeye’s restaurant

on 95th Street and Vincennes Avenue, while others fol-

lowed the CI to the location. While the agents’ surveillance

view was blocked at times, Agent Vernon Mask testified

that the defendant arrived at the parking lot in a blue van

and walked back and forth several times between the

van and the CI’s vehicle, updating the CI on the where-

abouts of his supplier. A grey Chevy Impala arrived,

occupied by the defendant’s crack cocaine supplier,

Justin Gardner. After spending a couple of minutes in

the Impala, Foster returned to the CI’s vehicle. After the

transaction, the CI drove to the debriefing location, where

he provided the agents with the crack cocaine he had

purchased, the scale, the transmitter, and unexpended

funds. Agents again searched the CI and recovered noth-

ing. The crack cocaine weighed approximately 61 grams.

In the meantime, Chicago police officers had followed the

Impala away from the parking lot, stopped it, and eventu-

ally arrested Justin Gardner (defendant’s supplier). All of

the crack cocaine purchased by the CI from the de-

fendant was analyzed and confirmed to be crack cocaine.

On April 6, 2009, Foster was charged with one count

of knowingly and intentionally distributing 50 grams or

No. 11-3097 7

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

On May 14, 2009, a federal grand jury returned a super-

seding indictment, charging Foster and another de-

fendant with narcotics trafficking-related offenses. The

earlier complaint was dismissed on the government’s

motion. On July 30, 2009, the grand jury returned a

second superseding indictment charging Foster and

another defendant with narcotics-trafficking offenses.

Foster was charged in Count One with knowingly and

intentionally distributing 5 grams or more of cocaine

base, in violation of 21 U.S.C. § 841(a)(1); in Counts Two,

Three, Four, and Six with knowingly and intentionally

distributing 50 grams or more of cocaine base, in viola-

tion of 21 U.S.C. § 841(a)(1); and in Count Five with

unlawfully possessing a firearm as a felon, in violation

of 18 U.S.C. § 922(g)(1). On August 17, 2009, the gov-

ernment filed a second notice of its intention to seek

an enhancement of the defendant’s sentence pursuant

to 21 U.S.C. § 851.

On November 12, 2009, the government provided

information to the defense suggesting that the CI and one

of the agents had provided incorrect testimony to the

grand jury regarding the amount of money that was

exchanged in one of the drug transactions.1 The district

court determined that sufficient probable cause existed

1

Apparently, the CI had a secondary deal with Foster to steal

money from ATF. Relatedly, ATF Agent Mask stated an inac-

curate number before the grand jury when he discussed

the amount of money that was exchanged during one par-

ticular transaction. However, the defense did not claim that

Agent Mask knowingly misrepresented the number.

8 No. 11-3097

such that the inaccurate testimony did not prejudice

the defendant’s right to a probable cause determination

by a grand jury, reasoning that the evidence, even

cleansed of such inaccuracies, was overwhelming as

to probable cause.

On November 16, 2009, the government orally moved

to dismiss Counts Three and Five of the second super-

seding indictment, and the district court granted the

motion. Foster entered pleas of not guilty as to all counts,

and the case proceeded to a jury trial. On November 20,

2009, a jury convicted the defendant on Counts One,

Two, Four and Six. On August 1, 2011, the district court

sentenced the defendant to serve concurrent terms of

240 months’ imprisonment on Counts One, Two, Four,

and Six, followed by concurrent terms of 10 years’ super-

vised release on each of the four counts.

III. Discussion

A. The district court did not err in admitting recorded

statements of the non-testifying confidential infor-

mant and the testimony of the ATF Agents

(i) Waiver, Forfeiture, and Standard of Review

Foster first argues that the district court violated Rule 802

of the Federal Rules of Evidence and the Confrontation

Clause of the Sixth Amendment by improperly admitting

statements of the non-testifying CI and the testifying

ATF agents. He notes that the district court ruled defini-

tively in a pretrial order in response to the government’s

motion in limine that: (1) the CI’s out-of-court recorded

No. 11-3097 9

statements were admissible subject to the prosecution

laying a proper foundation, and (2) the testimony of the

CI was admissible to challenge the truth of any state-

ments at issue or for the purposes of impeachment.

Foster initially had objected to the admission of the

CI’s recorded conversations with defendant on Confronta-

tion Clause and foundational grounds in his response

to the government’s motion in limine. However, Foster

did not object based on hearsay or Confrontation Clause

grounds at trial when the recordings were played. Never-

theless, he suggests that under the Federal Rules of Evi-

dence, he was not required to object again below to pre-

serve the Confrontation Clause issue for appeal. Fed. R.

Evid. 103(b) (where a court “rules definitively on the

record—either at or before trial—a party need not renew

an objection or offer proof to preserve a claim of error

for appeal”).

The government acknowledges that Foster initially

raised both Confrontation Clause and foundational ob-

jections to the admission of such testimony. However,

it argues that during the pretrial conference defense

counsel advised the district court that the parties

were attempting to reach an agreement regarding the

removal of testimonial statements from the recordings,

which would “save [the court] . . . the trouble of ruling on

it.” The government subsequently removed the state-

ments to which the defendant objected, after which the

focus of the district judge’s conversations with the

parties shifted to foundational requirements.

The government argues that Foster accordingly

waived any Confrontation Clause objection by with-

10 No. 11-3097

drawal, such that appellate review is improper. See

United States v. Cunningham, 405 F.3d 497, 502 (7th Cir.

2005) (“Although Cunningham’s trial counsel initially

objected [at trial] to the admission of the pictures, he

later explicitly withdrew his objection and furthermore

failed to make any additional objections” and accord-

ingly waived the objection). We explained in United

States v. Pittman that where a party’s “trial counsel af-

firmatively represented that he had no objection to the

admission of evidence,” the issue is waived. 319 F.3d

1010, 1012 (7th Cir. 2005) (citing United States v. Cooper, 243

F.3d 411, 416-17 (7th Cir. 2001)). There, while Pittman’s

counsel “initially reserved the right to file a responsive

brief” on the issue of whether certain evidence was ad-

missible, “he later stated at trial that he had no objection to

the use of the evidence.” Id. at 1011. In Cooper, the case

upon which Pittman relies for the proposition that ex-

plicitly withdrawn objections are waived, the defense

counsel explicitly withdrew his motion in limine which

had objected to the admission of certain evidence. 243

F.3d at 414 (“I think I will withdraw the entire motion.

How’s that sound?”) (internal quotation marks omitted).

In the present case, during a pretrial conference

to address the government’s motion in limine, Foster’s

counsel said the following regarding the CI’s recorded

statements:

Judge, to the degree that those recordings are—have

a hearsay element to them, we’ve—we have had a

discussion [with the government] earlier this morn-

ing. We think we can resolve most of our issues with

No. 11-3097 11

the transcripts in the content of the—of the recordings.

If we can resolve that and take out anything that is

testimonial from those recordings, then I think we

will not have an objection to that.

Further, Foster’s counsel stated that “[i]f law enforce-

ment agents can lay the foundation for their knowledge

and so long as there is not any—any testimony—state-

ments in it, then we don’t have an objection.” While

these statements tend to indicate that Foster believed

that he and the government had resolved, or at least

could resolve, his Confrontation Clause objection

through an agreement, Foster notes that the agreement

was effectively undermined when the district court

later permitted the CI to refuse to answer any ques-

tions related to issues upon which he testified in grand

jury proceedings.

The record does not conclusively indicate that Foster

explicitly withdrew the Confrontation Clause objections

presented in his response to the government’s motion

in limine. Unlike the defendant in Pittman, Foster not only

reserved the right to file a responsive brief detailing

his objections; he actually filed a response to the gov-

ernment’s motion in limine outlining his precise objec-

tions. And unlike the defendant in Cooper, Foster never

explicitly withdrew his response to the government’s

motion in limine. In addition, his statement that “so long

as there is not any—any testimony—statements in it,

then we don’t have an objection,” can reasonably be

understood as referring to continuing Confrontation

Clause concerns regarding the admission of testimonial

12 No. 11-3097

statements at trial. Foster’s statements during the pretrial

conference regarding his objections were conditional in

nature, suggesting only that if testimonial statements

were removed from the recorded conversations, he

would not have Confrontation Clause objections. Such

statements do not amount to an explicit withdrawal of

the objection signaling that he intentionally abandoned

the issue. Thus, because the court issued a final ruling

on the motion in limine, determining that the recorded

conversations were admissible, Foster did not need to

raise another objection to preserve the issue for appel-

late review. See United States v. Schalk, 515 F.3d 768, 776

(7th Cir. 2008) (“A definitive, unconditional ruling in

limine preserves an issue for appellate review, without

the need for later objection.”) (internal citation omitted).

Foster has not waived these arguments.

The government argues that even if Foster did not

waive his Confrontation Clause objection, he at least

forfeited the argument. The government notes that the

“specific ground for reversal of an evidentiary ruling on

appeal must . . . be the same as that raised at trial,” United

States v. Swan, 486 F.3d 260, 264 (7th Cir. 2007), and sug-

gests that the only ground raised below was founda-

tional. Because, in its view, Foster failed to object to the

admission of the recorded conversations on Confronta-

tion Clause grounds below, the government claims

that the forfeited objection requires only plain error

review. See Schalk, 515 F.3d at 776.

However, the government advances no additional

arguments, beyond those expressed in support of its

waiver claim, demonstrating that Foster failed to raise

No. 11-3097 13

his Confrontation Clause objection below. Indeed, the

government acknowledges that Foster raised Confronta-

tion Clause concerns in his response to the govern-

ment’s motion in limine. Accordingly, the government’s

suggestion that “no objection was made that would put

the district court (and the other party) on notice of the

objecting party’s concern,” Shalk, 515 F.3d at 776, is unper-

suasive. The government’s claim that Foster forfeited

the argument such that plain error presents the appro-

priate standard of review is therefore unavailing.

While evidentiary rulings generally are reviewed for

abuse of discretion, see e.g., United States v. Hosseini, 679

F.3d 544, 556 (7th Cir. 2012), we “review de novo a

district court ruling that affects a defendant’s Sixth

Amendment rights,” United States v. Nettles, 476 F.3d 508,

517 (7th Cir. 2007) (internal citation omitted). Because

Foster neither waived nor forfeited his Confrontation

Clause objection, we analyze his claim de novo.

(ii) Non-testifying CI

Foster argues that the government offered the non-

testifying CI’s recorded statements for their truth. Accord-

ingly, he suggests that the statements are hearsay and

that their admission violated the Confrontation Clause.

Hearsay is not admissible unless “a federal statute, these

rules, or other rules prescribed by the Supreme Court

provide otherwise.” Fed. R. Evid. 802. Even if hearsay is

admissible under the Federal Rules of Evidence, the

Confrontation Clause may pose a bar to its admission. We

have explained that in the context of the admission of

14 No. 11-3097

testimonial hearsay in criminal trials,“the Sixth Amend-

ment’s Confrontation Clause bars the admission of such

testimonial statements unless the declarant is unavailable

and the defendant had a prior opportunity for cross-

examination.” United States v. Bermea-Boone, 563 F.3d

621, 625 (7th Cir. 2009) (quoting United States v. Tolliver,

454 F.3d 660, 664-65 (7th Cir. 2006) (citing Crawford v.

Washington, 541 U.S. 36, 68 (2004))). However, where

“there is no hearsay, the concerns addressed in Crawford

do not come in to play,” id. at 626 (internal citation omit-

ted), as the Confrontation Clause “does not bar the use

of testimonial statements for purposes other than estab-

lishing the truth of the matter asserted.” Crawford, 541

U.S. at 59 n. 9.

The admission of recorded conversations between

informants and defendants is permissible where an in-

formant’s statements provide context for the defendant’s

own admissions. “[S]tatements providing context for

other admissible statements are not hearsay because

they are not offered for their truth.” United States v. Van

Sach, 458 F.3d 694, 701 (7th Cir. 2006); see also United

States v. York, 572 F.3d 415, 427 (7th Cir. 2009) (“[P]laying

the tapes of those conversations for the jury does not

violate the Confrontation Clause so long as those tapes

are offered to provide context for the defendant’s own

admissions.”); Nettles, 476 F.3d at 517 (“[W]hen statements

are merely offered to show context, they are not being

offered for the truth of the matter asserted, and therefore,

Crawford does not require confrontation.”). In United

States v. Gaytan, for example, the government intro-

duced recordings at trial of two controlled purchases

No. 11-3097 15

conducted using a CI, without calling the CI as a wit-

ness. 649 F.3d 573, 576 (7th Cir. 2011). On appeal, we

rejected a challenge on hearsay and Confrontation

Clause grounds to the admissibility of the CI’s recorded

statements, explaining that the “government offered the

challenged statements not for their truth but to put

[the defendant’s] own words in context and to help the

jury make sense of [the defendant’s] reaction to what [the

CI] said and did.” Id. at 580. The Gaytan court noted,

however, that a CI’s out-of-court statements “might

implicate the Confrontation Clause if the circumstances

suggest that the informant used those statements to ‘put

words into [a defendant’s] mouth.’ ” Id. (quoting Nettles,

476 F.3d at 518).

Foster claims that the admission of several of the CI’s

recorded statements constitute Crawford violations. Re-

garding the February 12, 2009 controlled purchase,

Foster argues that the CI’s recorded statements, “[t]hat’s

56. Supposed to be 60” and “4 grams. For . . . 56. Quantity

is off” are hearsay. He suggests that these statements

were offered as proof that Foster actually provided 56

grams of cocaine, that the CI was actually weighing that

cocaine, and that the quantity was in fact off. The govern-

ment counters that these statements were instead

simply relevant to provide context for the defendant’s

admissions, suggesting that in the absence of the CI’s

statements, the defendant’s statements which followed

would have been unintelligible to the jury.

According to the transcripts, the statements were

made in the following context: the defendant had

16 No. 11-3097

entered the CI’s vehicle and asked the CI if he had

“brought the scale,” explaining that he could “weigh it”

when the drugs arrived. Upon returning to the vehicle

(allegedly with the drugs), the defendant stated: “Alright.

He said give him 17 . . . for that, man. That’s two.

Two whole.” The deal was for two ounces. The CI then

allegedly weighed the drugs and determined that they

were four grams short, which prompted the CI to say

“That’s 56. Supposed to be 60” and claim that the

quantity was off. In response, the defendant lowered

the price from seventeen hundred dollars to sixteen

fifty, stating “Give me sixteen fifty. That’s why I say 17 . . .

It’s originally 17.”

Here, the CI’s statement regarding the weight was not

offered to show what the weight actually was or was

supposed to be (the exact number is immaterial), but

rather to explain the defendant’s acts and make his state-

ments intelligible. The defendant’s statement to “give

[him] sixteen fifty” (because the original price was 17)

would not have made sense without reference to the

CI’s comment that the quantity was off. Because the

statements were admitted only to provide context,

Crawford does not require confrontation.

Regarding the February 24, 2009 recorded state-

ments, Foster challenges the admission of the following

statements by the CI:

Uh you know, last time the quality was alright, just

the qual . . . I mean the quantity, not the qual . . .

the quality was fine, but just the quantity, you

know . . . . We just need, you know, go to get the

weight correct.”

No. 11-3097 17

In response to these comments by the CI, Foster said,

“they liked it? Okay good,” and then said that the

weight would be correct this time: “He’s got it right. He

better have it right.” Foster argues that these statements

were hearsay because they were utilized in the govern-

ment’s closing argument and to show that Foster was

guilty of the offense charged. Here again, the recorded

statements were offered to provide context: the state-

ments were not offered to show that the drugs were

actually of a high quality (the truth of the matter as-

serted). Rather, they were used to clarify the defendant’s

responses for the jury, including his focus on ensuring

that his supplier provided the right quantity on that

occasion. Whether the quantity actually was correct

is again immaterial.

Regarding the March 20, 2009 transaction, Foster chal-

lenges the admission of the following statements made

by the CI:

Look at me countin’ this ‘cause when he comes here,

I’m gonna weigh it, I’m gonna get up outta here.

Look[.] Look.

and

[S]ee about the weight before you go anywhere. Well

it’s supposed to be (UI).

These statements were made while the CI was in the

car with the defendant and expressing anxiety about the

wait for the defendant’s supplier. The statements were

offered to help the jury understand Foster’s state-

ments, signaling that defendant’s comments, “[w]ell how

18 No. 11-3097

much this?” and “I wasn’t watchin,” refer to the CI’s

payment for the delivery and the notion that he did not

know how much money the CI was giving him because

he hadn’t watched him count it. Foster argues that the

statements were offered to prove that the CI had money

for Foster and that Foster had cocaine in his possession.

However, Foster’s statements would have been unintel-

ligible without reference to the CI’s statements; for ex-

ample, jurors would be at a loss as to what the

defendant “wasn’t watching.” The CI’s statements were

offered only to provide context.

Finally, with respect to the April 2, 2009 transaction,

Foster challenges the admission of the following state-

ments made by the CI:

See because that, that’s the reason I wanted to, uh, you

know, meet him. Not, not to cut you out. I would still

pay you, still come through you . . . I call you this

number, tell you deliver a quarter ounce. You know,

give it, you give him the price, he pays you. You

know, you pay the money, be delivered to me to

you, but he be (UI) there (UI) have nothin’ to do

with this shit.

These statements formed part of a longer conversation

between the CI and Foster concerning Foster’s dealings

with his supplier and the delivery delays. Foster ex-

plained that the delays were not his fault because the

supplier had told him that he was on his way. Ap-

parently, the defendant and the CI waited a long time

for the supplier to arrive for the delivery, and after one

hour, the CI and Foster began arguing about how long

No. 11-3097 19

the deal was taking. Foster argues that these state-

ments show how the CI would prefer to conduct transac-

tions with the defendant. However, the statements

were offered to provide relevant background to the de-

fendant’s responses, enabling the jurors to comprehend

the conversation as a whole. The defendant’s responses

to these comments by the CI were brief (e.g., “say that

again” and “To where? Deliver where?”) and would

be unintelligible absent the full context. Because the

challenged statements were offered only to provide

context, Crawford does not require confrontation.

Unlike the concerns this court described in Nettles, the

aforementioned recorded statements do not amount to

instances of the CI “put[ting] words in [the defendant’s]

mouth.” 476 F.3d at 518. Nor did the CI’s recorded state-

ments “try to persuade [the defendant] to commit more

crimes in addition to those that [defendant] had

already decided to commit.” Id. at 518. Here, as in Gaytan,

“the government offered the challenged statements not

for their truth but to put [the defendant’s] own words

in context and to help the jury make sense out of

his reaction to what [the CI] said and did.” 649 F.3d at

580. Further, the jury was provided with instructions

by the court indicating that the CI’s recorded state-

ments were not to be considered for the truth of the

matter asserted, but instead only to provide context

for the defendant’s admissions. See Van Sachs, 458 F.3d at

701-02 (district court’s limiting instruction relevant to

determination that Confrontation Clause rights were not

violated). Because “there is no hearsay, the concerns

20 No. 11-3097

addressed in Crawford do not come in to play.” Bermea-

Boone, 563 F.3d at 626. The district court’s admission

of these recorded statements was not in error.

(iii) ATF Agents

Foster also argues that the admission of testimony

from various ATF agents violated his Confrontation

Clause rights. He suggests that the agents’ testimony

amounted to “the equivalent of” out-of-court statements

by the non-testifying CI, which in turn violated his Con-

frontation Clause rights. He argues that the following

statements by various ATF agents elicited vicarious

“nonverbal conduct” statements by the CI:

Prosecutor: And when you and the confidential in-

formant arrived at the debriefing spot, what, if any-

thing, did the informant give you?

Agent [Jacob J.] Casali: The informant turned over to

me the crack cocaine that had been purchased from

the defendant, as well as the transmitter and the

electronic scale, at which time I removed the re-

cording device from his vehicle, as well—he also

turned over any—any—any unexpended funds.

and

Prosecutor: When you and the informant arrived at

the debriefing spot, what, if anything, did the infor-

mant give you?

Agent Casali: The informant turned over to me unex-

pended funds, the narcotics that he had just pur-

No. 11-3097 21

chased, the portable electronic scale, the transmitter;

and I removed the recording device from his vehicle.

and

Prosecutor: What, if anything, did the informant

give you?

Agent Mask: He gave me a package of suspected

crack cocaine in a clear plastic bag.

and

Prosecutor: Would you tell us, Special Agent Casali,

what you received back from the informant?

Agent Casali: The crack cocaine that he had

purchased, the electronic scale, the transmitter, and

any unused government funds.

Foster claims that the above statements constitute

inadmissible hearsay, relying on United States v. Walker

for the proposition that “[a] prosecutor surely knows

that hearsay results when he elicits from a government

agent that ‘the informant said he got his gun from X’ as

proof that X supplied the gun.” 673 F.3d 649, 658 (7th

Cir. 2012). However, Walker involved our finding that

the admission of testimony regarding what a CI told an

agent about the location of a firearm was improper. See

id. at 658. In the present case, neither Agent Mask nor

Agent Casali refer to any out-of-court statements by the

CI; instead, they only describe their personal actions

and observations.

Indeed, the Walker court explicitly approved of this

sort of testimony, explaining that “[t]he government

22 No. 11-3097

was free to elicit through [the agent] that [the CI] had

given him the [firearm].” Id. Here, the government did

just that: it elicited through Agents Casali and Mask

that the CI had provided them with drugs, money, a

transmitter, and a scale. We have many times deter-

mined that testimony regarding an agent’s personal

observations does not implicate hearsay concerns. See

United States v. Pira, 535 F.3d 724, 729 (7th Cir. 2008)

(noting “the personal observations of [the] Special

Agent . . . are not in fact hearsay); United States v. Bursey,

85 F.3d 293, 296 (7th Cir. 1996) (explaining that the

officer’s “testimony about his personal observations of

and encounters with [the defendant] during his police

work do not qualify as out-of-court ‘statements’ under

the hearsay rules.”); United States v. Gandara, 586 F.2d

1156, 1158 (7th Cir. 1978) (an agent’s testimony re-

garding facts “within his own personal experience” based

on surveillance is not hearsay). The challenged testimony

in the present case exclusively concerned the agents’

personal observations and actions: the agents personally

witnessed the controlled buys, searched the CI before

and after each transaction, and followed the CI to the

debriefing location after each transaction to collect

the drugs, money, and recording equipment. Accordingly,

their own actions formed the basis for their testimony,

and their testimony did not relay “nonverbal conduct”

statements of the CI. The district court’s decision to

admit such testimony was not in error.

No. 11-3097 23

B. The district court did not err in denying defen-

dant’s request for a missing witness instruction

We review the district court’s denial of defendant’s

request for a missing witness instruction for an abuse of

discretion. United States v. Villegas, 655 F.3d 662, 669-70

(7th Cir. 2011); United States v. Morris, 576 F.3d 661, 672

(7th Cir. 2009) (“We review the district court’s refusal

to give a jury instruction for an abuse of discretion.”)

(internal citation omitted). “The district court has broad

discretion in deciding whether to give a missing

witness instruction, and we will disturb that decision

only where serious error has occurred.” United States v.

Christ, 513 F.3d 762, 773 (7th Cir. 2008) (internal citation

omitted). However, where a district court denies a

missing witness instruction because it concludes that

such an instruction is inappropriate as a matter of law,

we review that decision de novo. United States v.

Tavarez, 626 F.3d 902, 904 (7th Cir 2010). In the present

case, while Foster suggests that de novo review is appro-

priate, he has not advanced an argument that the

district court determined that the missing witness in-

struction “was inappropriate as a matter of law.” Id.

The district court below stated that it was denying the

instruction based on “all the circumstances.” Thus,

we review for abuse of discretion.

“The missing witness instruction is disfavored by this

circuit, but a district court has discretion to give it in

unusual circumstances.” Id. at 904 (citing United States

v. DiSantis, 565 F.3d 354, 364 (7th Cir. 2009)). To “establish

entitlement to a missing witness instruction, a de-

24 No. 11-3097

fendant must prove two things: first, that the absent

witness was peculiarly within the government’s power

to produce; and second, that the testimony would

have elucidated issues in the case and would not

merely have been cumulative.” United States v. Gant,

396 F.3d 906, 910 (7th Cir. 2005) (quoting United States

v. Valles, 41 F.3d 355, 360 (7th Cir. 1994)).

Two business days before trial, Foster stated on the

record that he intended to call the CI to testify, although

a trial subpoena for the CI’s testimony had not yet been

issued. By then, the government had relocated the CI

out of state because of potential threats to his safety

but nevertheless agreed to accept service of the subpoena

and to produce the witness in court to testify for the

defense. That evening, after the government noticed

discrepancies regarding the amount of money the CI

claimed he had paid Foster for the crack cocaine, the

government met with the CI. It notified the CI that the

defense intended to call him as a witness and that he

would be served with a trial subpoena which would

require him to appear in court. It also informed him

that failure to appear could be grounds for contempt

and that the court might issue a warrant for his arrest.

After confronting him about the discrepancy, the CI

ultimately admitted that he had skimmed some of the

buy money the agents had given him for the controlled

transactions. The government notified the defense im-

mediately that night and the district court the following

day. The CI then sought out an attorney, who stated that

if the CI were called to testify, he would assert his

No. 11-3097 25

Fifth Amendment privilege against self-incrimination.

After hearing arguments from counsel for the CI as well as

the defense (the government took no position) and con-

firming that the government would not immunize the

CI, the district court determined that the CI could not be

compelled to testify regarding matters touched upon

during the grand jury proceedings. The defense then

asked for a missing witness instruction, which the

court denied.

The district court did not abuse its discretion in

denying Foster’s request for a missing witness instruc-

tion. Foster correctly notes that in the past we have

found that where “[o]nly the confidential informant

actually observed what happened during the controlled

buys” a CI’s testimony would “certainly have been rele-

vant.” Tavarez, 626 F.3d at 905. Thus, the CI’s testimony in

this case arguably would have been relevant, and Foster

further suggests that the defense would have been able

to elicit non-cumulative testimony regarding the dis-

crepancies between the CI’s grand jury testimony

and his statements to federal agents. However, even

assuming Foster has established that such testimony

would have been relevant and non-cumulative, the

district court correctly rejected Foster’s request for a

missing witness instruction because the witness was not

peculiarly within the government’s power to produce.

A “witness is peculiarly within the government’s power

to produce when the witness is physically available only

to the government, or where the witness’s relationship

with the government makes his testimony, in pragmatic

26 No. 11-3097

terms, available only to the government.” Christ, 513

F.3d 762, 773 (7th Cir. 2008) (internal citation omitted).

“The mere fact that [a witness] was a government in-

formant does not inevitably establish that he was prag-

matically available to testify only on behalf of the pros-

ecution.” United States v. Rollins, 862 F.2d 1282, 1298

(7th Cir. 1988) (internal citation omitted). While Foster

acknowledges that the government’s ability to grant

immunity does not make a witness who invokes the

Fifth Amendment privilege peculiarly available to the

government, see United States v. St. Michael’s Credit

Union, 880 F.2d 579, 598 (1st Cir. 1989), he argues that

an exception exists where there is a clear abuse of pros-

ecutorial discretion violating the due process clause. See

United States v. Flomenhoft, 714 F.2d 708, 713 (7th Cir. 1983).

“Such an abuse of discretion occurs when a pros-

ecutor intends to use his authority under the immunity

statute to distort the judicial fact-finding process.”

United States v. Taylor, 728 F.2d 930, 935 (7th Cir. 1984)

(internal citation omitted).

Foster argues that the government’s actions amounted

to a clear abuse of prosecutorial discretion that violated

the due process clause. Specifically, he suggests that

the government intimidated the CI through interroga-

tion so that he would not testify at trial. Foster points

out that ATF agents demanded that the CI “come

clean,” and warned him about perjury and prosecution,

as well as the consequences of lying to the government.

The CI ultimately admitted to skimming money from

the transactions and at one point began rambling inco-

herently. Upon being questioned by the government

No. 11-3097 27

regarding the details of these incidents, the CI

eventually pushed himself away from the table and

collapsed. Paramedics were called and he was not left

alone that evening out of concern for his health.

While these facts are undoubtedly dramatic, there is

no evidence that the government intentionally sought

to distort the judicial fact-finding process. The district

court determined that the witness was equally unavail-

able to both parties, explaining that “[e]verything that

is in the record in this case as far as I can see points to

the fact that the government was as surprised as anyone

to hear from the confidential informant when he was

interviewed just prior to trial that he had, in fact, been

cheating the government out of money.” The govern-

ment’s relationship with the CI undoubtedly diverged

after his admitted misconduct, at which point it cannot

be said that their former employment relationship ren-

dered him exclusively within the government’s control.

Further, “Congress has conferred the power to im-

munize witnesses uniquely upon the executive branch.”

Flomenhoft, 714 F.2d at 713. And as we have explained

before, “[r]equiring a missing witness instruction each

time the prosecution decides not to immunize a witness

would constitute a substantial judicial encroachment

upon prosecutorial discretion.” Id. at 714. Indeed, “[t]he

immunization statutes are not designed to benefit de-

fendants.” Id. at 713. The CI committed at least one

serious federal offense; the government’s decision not

to grant him immunity does not amount to a clear abuse

of prosecutorial discretion or an effort to manipulate

the fact-finding process. Because Foster has failed to

28 No. 11-3097

establish that the CI was peculiarly within the power of

the government to produce, the district court did not

err in denying the missing witness instruction.

C. The district court’s error in not applying the

Fair Sentencing Act was harmless

Foster argues that the district court’s error in not ap-

plying the Fair Sentencing Act (“FSA”) requires a re-

mand. We review questions of law affecting sen-

tencing de novo. See United States v. Powell, 652 F.3d 702,

710 (7th Cir. 2011) (reviewing de novo a defendant’s

argument that his sentence was imposed in violation of

the Fair Sentencing Act). Below, the district court ruled

that it would not apply the FSA because all of the de-

fendant’s underlying criminal conduct occurred between

February and April 2009, before the FSA was passed.

In Dorsey v. United States, 132 S. Ct. 2321 (2012), the

Supreme Court held that the FSA’s statutory penalties

apply to defendants sentenced after the statute’s effec-

tive date of August 3, 2010, even if their offense con-

duct occurred prior to August 3, 2010. The government

accordingly acknowledges that under Dorsey, because

Foster was sentenced on August 1, 2011 (after the

statute’s effective date), the district court erred by not

applying the FSA. Under the FSA, Foster’s mandatory

minimum sentence would have been 5 years, which

would have doubled to 10 years based on the career-

offender enhancement the government filed. Without

the application of the FSA, Foster was subject to a 10-year

mandatory minimum, doubled to 20 years in light of

No. 11-3097 29

the enhancement applied by the government. The

district court sentenced defendant to 20 years’ impris-

onment for each of Counts One, Two, Four, and Six,

all to run concurrently.

Under the FSA, for Count One the defendant’s super-

vised release range was 6 years up to life; for Counts Two,

Four, and Six, the defendant’s supervised release range

was 8 years up to life. Under the pre-FSA guidelines,

Foster’s supervised release range for Count One was

8 years up to life; for Counts Two, Four, and Six, his

supervised release range was 10 years to life. The

district court imposed a 10-year term of supervised

release, consisting of a term of 8 years on Count One and

10 years on each of Counts Two, Four and Six. Foster

now asks that this sentence be vacated and remanded

so that the district court may consider the application

of the FSA.

While the government acknowledges that under Dorsey

the defendant should have been sentenced within the

statutory penalties set by the FSA, it argues that a

remand is not necessary because the error was harm-

less. See United States v. Hill, 645 F.3d 900, 912 (7th Cir.

2011) (“When we are convinced that the sentence

would have been the same absent the error, we deem

the error harmless.”) (internal citation omitted); United

States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008)

(noting that before remanding a case, the court must

determine whether an error was harmless). To this end,

the government identifies language from the sen-

tencing transcript indicating that the district court would

30 No. 11-3097

have imposed the same sentence regardless of the ap-

plicability of the FSA. In response to the government

asking the district court to clarify whether under 18

U.S.C. § 3553(a) it would impose the same sentence if it

had sentenced the defendant under the FSA, the court said:

This is the sentence I would impose whether the Fair

Sentencing Act applied or not. It’s a sentencing

based upon the 3553 factors that I indicated, my

reading of the defendant’s history, the specifics of

this particular crime, the need to deter any future

crimes, which, with this defendant, means incarcera-

tion and nothing else because nothing else has

worked, and the need to protect the public, his many

victims across four states. That’s what it is based on.

I have found the total offense level of 37, Criminal

History Category VI, with a guidelines range of 360

months to life is the appropriate determination in

this case. But under either guideline determination,

applying the FSA or not, this is the sentence

I would impose.

In addition, the fact that the pre-FSA and FSA sen-

tencing frameworks yielded different statutory

mandatory minimums was explained to the district

court (though the fact that the FSA also changed the

mandatory minimum supervised released terms was not

explained to the court).

We have in the past found that where the district court

indicates that it would have imposed the same sentence

regardless of any sentencing error, the error is harmless

and a remand is not required. For example, in United

No. 11-3097 31

States v. Abbas, we determined that a sentencing error

was harmless because the sentencing judge said that

she would have imposed the same sentence even if the

Guideline at issue did not apply. 560 F.3d 660, 667 (7th

Cir. 2009). In Anderson, we likewise concluded that the

error in calculating the sentencing range was harmless

because the district court explicitly stated that it would

impose the same sentence even if its Guidelines calcula-

tions were incorrect. 517 F.3d at 965. We subsequently

explained that the “common thread in both Anderson

and Abbas is that the sentencing court firmly indicated

that it would impose the same sentence regardless of

any sentencing error.” United States v. Zahursky, 580

F.3d 515, 528 (7th Cir. 2009). Thus, the district court’s

statement that it would have imposed the same sentence

regardless of the FSA’s application in this case indicates

that the error was harmless. Further, the district court’s

statement “was not just a conclusory comment tossed

in for good measure,” but rather reflected a “detailed

explanation of the basis for the parallel result.” Hill,

645 F.3d at 912 (quoting Abbas, 560 F.3d at 667). Here,

the court explained which specific § 3553(a) factors influ-

enced its decision, including the defendant’s history, the

particular crime in question, the need for deterrence,

the need to protect the public, and the defendant’s

many victims. Because the district court explicitly

stated that it would have applied the same sentence

regardless of the FSA’s application, instead basing

its determination on the § 3553(a) factors, the error was

harmless. A remand is unnecessary.

32 No. 11-3097

IV. Conclusion

For the foregoing reasons, we A FFIRM the defendant’s

conviction and sentence.

11-28-12