United States v. Jones

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-1740, 09-1822, 09-1823, 09-1824, 09-1825, 09-1970

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

B RIAN JONES, et al.,
Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:07-CR-24—Richard L. Young, Chief Judge.

A RGUED O CTOBER 28, 2009—D ECIDED A PRIL 7, 2010

Before R IPPLE, W ILLIAMS and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Brian Jones, Mitchell McGhee,
Leonard Hoskins, Jeremy Simmons, Sam Cook, Damand
Matthews and several other defendants were charged
with conspiring to distribute large quantities of narcotics
in Evansville, Indiana. Some of the defendants pled
guilty, but the named defendants exercised their right to
a jury trial, during which they were faced with evidence
that included the description of a controlled buy, the
2 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

testimony of some alleged members of the conspiracy,
and voice identifications from incriminating wiretapped
conversations between the defendants. The jury con-
victed the defendants, and all were sentenced to life
except Cook, who received over 20 years’ imprisonment.
The defendants raise a host of legal challenges on
appeal, which we summarize here and analyze in
further detail below.
The majority of the defendants’ arguments lack merit,
having clearly been foreclosed by our precedent. First, it
was not error for the district court to utilize a jury
form asking the jury to find that each defendant was
responsible for more than a specific amount of drugs.
Second, life sentences for participation in a drug con-
spiracy do not violate the Eighth Amendment under
current precedent. Third, the clerical error in the warrant
affidavit for the wiretaps that formed the basis of this
prosecution did not prejudice the defendants, and we
see no reason to exclude evidence supported by a valid
warrant and ample probable cause. Fourth, defendant
McGhee’s confession, which he gave after asking to
speak to a detective and without being subjected to
an interrogation, was voluntary and admissible. Fifth,
the district court was within its discretion to exclude
the testimony of Agent Douglas Freyberger, whom defen-
dants Hoskins and McGhee wanted to question re-
garding statements that co-defendant Lamont Robinson
made during his guilty plea colloquy, because it was
hearsay. Sixth, the district court correctly refused to grant
defendant Matthews’s request for a jury instruction
on a lesser included charge because the proposed lesser
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 3

charge contained elements distinct from the drug conspir-
acy charge, and so it did not meet the legal definition
for “lesser included charge.” And finally the govern-
ment’s comment, made during closing arguments, on the
defendants’ failure to offer testimony to contradict the
government’s evidence did not violate their Fifth Amend-
ment rights because it was not a direct comment on
their failure to testify and many non-defendants existed
that could have been called to counter the government’s
position.
Defendant Cook’s case is more troubling. After initially
identifying Cook’s voice on wiretaps based on approxi-
mately sixty words he spoke during two pretrial appear-
ances, Detective Cliff Simpson gave additional testimony
on rebuttal that he also listened to Cook speak with
his counsel for ten to fifteen minutes before a court pro-
ceeding. He testified that, based on hearing that con-
versation, he was confident that it was Cook’s voice on
the wiretaps. In addition to the obvious concerns raised
by the idea of a detective listening to a conversation
between a defendant and counsel, Detective Simpson’s
testimony presents serious evidentiary issues. By
allowing this testimony, the court created a conflict of
interest—only Cook and his attorney were in the position
to refute the detective’s claim by testifying that this
conversation never took place. This conflict of interest
went unresolved, and Detective Simpson’s testimony
was admitted without Cook having the opportunity to
contradict it. Because the testimony was admitted,
we cannot be sure how much weight the jury gave to
his initial identification versus how much weight it gave
4 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

to his later testimony that he recognized the voice based
on hearing Cook speak with his lawyer for ten to fifteen
minutes. So, given the scant evidence to implicate Cook
in this conspiracy aside from the flawed voice identifica-
tion, we must vacate his conviction and remand for a
new trial.

I. BACKGROUND
Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy
Simmons, Sam Cook, and Damand Matthews were part
of a conspiracy to distribute large quantities of cocaine
and cocaine base in the greater Evansville, Indiana area.
Simmons, McGhee, and later Matthews’s girlfriend
Sherita Nesbit would drive from Evansville to Chicago
in order to get cocaine from Simmons’s supplier. When
they returned, they converted the cocaine to crack and
distributed it to the other defendants to sell on the
streets. The government charged all the defendants with
conspiracy, along with Nesbit and Lamont Robinson. At
trial, the government presented substantial evidence,
including audiotapes from a three-month long wiretap
on several of the defendants’ phones, Nesbit’s testimony,
the testimony of Stanley Pike (an original member of
the conspiracy), evidence relating to several con-
trolled buys, and evidence of police surveillance of the
defendants. A jury found all of the defendants guilty, and
the district court sentenced all the defendants to life
imprisonment, except for Cook, who received 257 months’
imprisonment. On appeal, the defendants do not chal-
lenge the sufficiency of the evidence against them.
Instead, they present several legal arguments. Because all
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 5

the relevant disputes are legal in nature, we will detail
any additional facts necessary in the context of our
analysis below.

II. ANALYSIS
A. Defendants’ Jury Form and Eighth Amendment
Arguments
The defendants’ first two legal challenges do not
warrant much discussion. First, they argue that the
district court erred by failing to provide separate jury
forms for each defendant because the jury could have
found that different defendants were responsible for
different drug quantities. Instead, the verdict form
only asked the jury to find that each defendant was
responsible for more than 50 grams of cocaine. We have
already foreclosed this argument. See United States v.
Seymour, 519 F.3d 700, 710 (7th Cir. 2008) (holding that
jury was not required to make a defendant-specific drug
quantity determination in prosecution for conspiracy); see
also United States v. Tolliver, 454 F.3d 660, 669 (7th Cir.
2006). Second, the defendants argue that a life sentence
for participation in a drug conspiracy is disproportionate
to the crime committed, amounting to a cruel and
unusual punishment that violates the Eighth Amend-
ment. However, as the defendants conceded at oral
argument, we have rejected this argument before, and
while the contention is by no means meritless, there is
existing Supreme Court precedent on this issue. See, e.g.,
Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California,
538 U.S. 11 (2003); see also United States v. Strahan, 565
6 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

F.3d 1047, 1052-53 (7th Cir. 2009) (citing Lockyer and
Ewing).

B. The Wiretap Warrant
The Drug Enforcement Agency (“DEA”) asked a confi-
dential informant (“CI”) to conduct four controlled buys
with Defendant Simmons. Each time, the CI called one
of Simmons’s cell phones to set up the drug purchase.
The DEA used the CI’s statements and agents’ surveil-
lance of the controlled buys as the primary basis to estab-
lish probable cause in the warrant affidavit seeking a
wiretap on Simmons’s cell phones. In the warrant
affidavit, as required by 18 U.S.C. § 2516(1), the Deputy
Attorney General, relying on and citing Attorney
General Order No. 2887-2005 (“Order 2005”), stated that
he authorized the DEA to request these wiretaps. How-
ever, at the time the affidavit was filed, Order
2005 had been rescinded and replaced by Attorney
General Order No. 2887-2007 (“Order 2007”). Order 2007
is materially the same as Order 2005, and also gives
the Deputy Attorney General the authority to approve
a request for a wiretap. A federal magistrate judge
found that probable cause existed and approved the
warrant for the wiretaps.
On appeal, the defendants contend that the wiretap
evidence should be suppressed because it relied on an
invalid executive order. In doing so, they rely on 18 U.S.C.
§ 2518(10)(a), which allows an aggrieved defendant
to move to suppress wiretap evidence if: “(i) the com-
munication was unlawfully intercepted; (ii) the order
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 7

of authorization or approval under which it was inter-
cepted is insufficient on its face; or (iii) the interception
was not made in conformity with the order of authoriza-
tion or approval.” None of these applies here. Given that
Order 2007 authorizes the same official to approve the
wiretap request as Order 2005 previously did before
its repeal, the defendants cannot show that they were
in any way prejudiced by what in effect amounted to
replacing a “7” with a “5” in the warrant affidavit. Even
if citing to the incorrect order was an egregious viola-
tion, the defendants do not argue why suppression is
the appropriate remedy given that the DEA acted in
good faith. See United States v. Chavez, 416 U.S. 562,
575 (1974) (holding that misidentification of the officer
authorizing the wiretap does not require suppression
because it did not “affect the fulfillment of any of the
reviewing or approval functions required by Congress”);
United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003)
(same). As in Chavez, none of the reviewing functions
required by Congress has been subverted—a clerical
error such as this is not a reason to invalidate an other-
wise proper warrant which is supported by ample proba-
ble cause. So, we decline the defendants’ request to sup-
press the wiretap evidence against them.
The defendants also claim that statements in the war-
rant affidavit about unindicted suspects somehow
caused them harm. However, the warrant contained
specific evidence relating to the specific cell phones of
Simmons, and as the magistrate found, this evidence
formed the basis of probable cause to tap those phones
in particular. So this argument fails too.
8 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

C. Lamont Robinson’s Out-of-Court Statements
Lamont Robinson was originally indicted and tried
along with the other defendants. The government pre-
sented testimony regarding his involvement in the con-
spiracy and his role as an enforcer and drug mule
during its case-in-chief. In the middle of the trial, how-
ever, he entered into a Rule 11(c) plea agreement, in
which he agreed to plead guilty in exchange for a
specified term of 12 years’ imprisonment. At his change
of plea hearing, in response to the government’s ques-
tions, he stated that he never delivered cocaine to defen-
dants Hoskins or McGhee. During the defendants’
case-in-chief, Robinson asserted his Fifth Amendment
rights, and Hoskins and McGhee sought to introduce
Robinson’s statements through Agent Douglas Frey-
berger, who was present at the change of plea hearing.
The government and counsel for defendant Jones
objected, and the district court excluded the testimony.
We review a district court’s decision regarding the
admission of evidence for an abuse of discretion. United
States v. Jackson, 540 F.3d 578, 587 (7th Cir. 2008). The
district court’s determination as to the trustworthiness
of out-of-court statements is “entitled to considerable
deference” and will be upheld unless “clearly erroneous.”
Id. at 588. Additionally, we will only reverse a convic-
tion on these grounds when the erroneous ruling had a
“substantial influence over the jury.” United States v. Har-
rison, 431 F.3d 1007, 1011 (7th Cir. 2005). Here, the district
court did not err in excluding Agent Freyberger’s testi-
mony because it was hearsay. The defendants sought to
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 9

introduce it for the truth of the matter asserted (that
Robinson never gave cocaine to Hoskins or McGhee), and
they did not point to an exception to the hearsay bar
that would permit Agent Freyberger’s testimony to be
introduced. They cite Federal Rule of Evidence 804,
which permits hearsay testimony in certain circum-
stances if the declarant is unavailable to testify because
of a legal privilege, such as here. However, of the four
circumstances in which Rule 804 allows hearsay testi-
mony, the only one that could plausibly apply is Rule
804(b)(3)’s “[s]tatement against interest.” We do not see
how this statement was against Robinson’s interest,
especially since he was already pleading guilty. Addition-
ally, Hoskins and McGhee fail to make any argument
beyond a mere recitation of Rule 804 as to why this ex-
ception should apply in this case.
Moreover, as Jones’s counsel pointed out, if this testi-
mony was admitted, the government would have a right
to inquire about the circumstances in which the state-
ments were made—a guilty plea hearing—which would
severely prejudice the defendants. The government
would also be allowed to inquire about Robinson’s
motive in making these statements. Given that his sen-
tence was already set, Robinson had nothing to gain and
something to lose from inculpating his codefendants.
These two facts make it unlikely that this testimony
would have had a “substantial impact” on the jury in
favor of Hoskins and McGhee. In summary, given that
Hoskins and McGhee have failed to cite a single
relevant case that supports the proposition that Agent
Freyberger’s testimony should have been admitted, we
10 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

cannot say that the district court abused its discretion
in excluding it.

D. Defendant McGhee’s Statements
Officer Jacob Taylor arrested defendant McGhee. While
he was being processed, McGhee spit out ten bags of
cocaine, and the intake officers inquired about how
many bags he had initially swallowed. He answered that
he had swallowed twelve bags. So the officers assumed
that two bags might still be in his system, which could
possibly lead to imminent physical injury, and Officer
Taylor transported him to the hospital. According to
Officer Taylor, without prior questioning, McGhee re-
peatedly asked to speak to a narcotics detective and
told Officer Taylor that he obtained the bags of cocaine
to deliver to a female.
The next morning, in response to McGhee’s requests to
speak to a detective, Detective Mike Gray went to the
hospital. There, McGhee made several incriminating
statements to Detective Gray. He later moved to sup-
press the statements, claiming that his confession was
taken in violation of his Miranda rights and was not
voluntary because it was made while he was under the
influence of cocaine. It is undisputed that neither Officer
Taylor nor Detective Gray gave McGhee his Miranda
warnings. At the suppression hearing Detective Gray
testified that while at the hospital, he asked McGhee
why he wanted to see him, but asked no leading ques-
tions of any sort. Detective Gray claimed that in response,
McGhee made the incriminating statements. Both officers
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 11

testified that McGhee did not appear to be under the
influence of any drugs. The district court denied
McGhee’s motion, finding that the evidence indicated
that Detective Gray did not interrogate McGhee and that
McGhee was not under the influence of cocaine when
he made these incriminating statements.
There is no dispute that McGhee was in custody when
he spoke with Detective Gray at the hospital. However,
a defendant must both be in custody and subject to
“interrogation” to trigger the Miranda requirement.
United States v. Burns, 37 F.3d 276, 280 (7th Cir. 1994).
“Interrogation” is defined as “express questioning” or “any
words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an
incriminating response.” Rhode Island v. Innis, 446 U.S.
291, 301 (1980). “Volunteered statements of any kind are
not barred by the Fifth Amendment.” Miranda v. Arizona,
384 U.S. 436, 478 (1966). If a defendant makes a state-
ment in response to words or actions by the police that
do not constitute interrogation or if the defendant
himself initiates further communications, the police are
not prohibited from “merely listening” to his voluntary
statement. Edwards v. Arizona, 451 U.S. 477, 494 (1981);
United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001).
Here, Officer Taylor’s testimony showed that McGhee
asked to speak to a detective, and Detective Gray’s testi-
mony indicated that McGhee was not subject to direct
questioning or any other form of coercion before he
confessed. The facts before us demonstrate that McGhee
was not subject to interrogation.
12 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

Also, there is no evidence that almost twenty-four hours
after possibly ingesting cocaine, McGhee was under the
influence, especially given the fact that he told the
officers he was not. Even if he was, he presents no argu-
ment linking the level of his intoxication with the lack
of voluntariness of his statements. See United States v.
Montgomery, 14 F.3d 1189, 1195 (7th Cir. 1994) (“Even if
we were to assume that [Defendant] was a cocaine
addict who may have been incapacitated, we would not
necessarily conclude that the statement was involuntary
because there still must be some showing of official
coercion.”). In sum, there is no evidence that this con-
fession was anything other than voluntary and the
district court did not err by admitting it.

E. Defendant Matthews’s Request For Lesser Included
Offense Instruction
At the conclusion of the trial, Defendant Matthews
asked the court to instruct the jury that it could convict
him of the lesser offense of using a communication
facility to aid a narcotics offense, 21 U.S.C. § 843(b),
instead of the offense he was charged with, conspiracy
to distribute controlled substances, 21 U.S.C. § 846. The
court invited argument from defense counsel on why
it should do this, which counsel declined to make, and
the court ruled that use of a communication facility was
not a lesser included offense of conspiracy and declined
to give the instruction to the jury.
To constitute a lesser included offense, the lesser offense
must be: (1) “included” in the greater offense; and (2) a
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 13

rational jury must be able to acquit on the greater offense
but still convict on the lesser offense. United States v.
McCullough, 348 F.3d 620, 624 (7th Cir. 2003). We review
a district court’s decision on the first prong de novo
and the second prong for abuse of discretion. Id. We
employ the familiar Blockburger test for the first prong of
this analysis: to be legally “included” in the greater
offense, all of the elements of the lesser offense must be
included in the greater offense—in other words, the
elements of the lesser offense must be a subset of those
of the greater offense. United States v. Blockburger, 284 U.S.
299, 304 (1932). If the lesser offense contains an element
that the greater offense does not, it does not constitute
a “lesser included offense.” Here, the elements of the
greater offense, conspiracy, include: (1) conspiring to
distribute drugs; and (2) knowingly joining the con-
spiracy with the intent to further it. See 21 U.S.C. § 846.
To be guilty of the proposed lesser offense, Matthews
would have had to: (1) intentionally; (2) use a communica-
tion facility; (3) to commit a felony. See 21 U.S.C. § 843(b).
21 U.S.C. § 843(b) contains an element that 21 U.S.C. § 846
does not—use of a communication facility. Therefore,
“use of a communication facility to aid a narcotics of-
fense” is not a lesser included offense of conspiring
to distribute drugs. It is possible to participate in a drug
conspiracy without ever touching a communication
facility. Matthews argues that all of the evidence at trial
suggested he used a phone, a “communication facility,” as
part of the conspiracy, and therefore use of a “communi-
cation facility” is a necessary element of the conspiracy
charge in this case. This argument is unpersuasive. It
14 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

was legally possible for the government to prove the
conspiracy charge without proving that Matthews used
a phone; the law dictates a simple comparison of
the elements on paper and not a fact inquiry into a de-
fendant’s actual behavior. See McCullough, 348 F.3d at
624. So, given that Matthews has failed to satisfy the
first prong of the McCullough standard, the district court
correctly refused to give the lesser included offense
instruction to the jury.

F. The Government’s Closing Argument
During closing argument, the government utilized a
visual aid with a zero on it, and stated that the “[m]ost
important thing, though, to think about with the voice
identification is the number zero, and the thing that’s
important about the number zero is that there has been
zero testimony to contradict” the police officers’ voice
identifications of the defendants on the wiretapped
conversations. The government also stated that the evi-
dence regarding voice identifications in the case was
“uncontroverted.” Reiterating the same theme later in
the closing, the government argued that Detective
Simpson had accurately identified the speakers on the
wiretaps, and again commented that there was “zero
evidence” to challenge the identification. The defendants
contend that these statements and the visual aid violated
their Fifth Amendment rights against self-incrimination
because they constituted commentary on the defendants’
failure to testify, and that a new trial is warranted as
a result. The defendants did not object to these com-
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 15

ments at trial, and thus we review for plain error. United
States v. Harris, 271 F.3d 690, 700 (7th Cir. 2001). We
find none here, nor do we find that the defendants have
shown the government’s comments were obviously or
clearly improper. Id. (in context of claim of prosecutorial
misconduct, plain error review includes additional
burden for defendants to demonstrate that comments
were “obviously” or “clearly” improper) (citing United
States v. Renteria, 106 F.3d 765, 766-67 (7th Cir. 1997)).
Direct comment on a defendant’s failure to testify is a
per se Fifth Amendment violation. United States v. Butler,
71 F.3d 243, 254 (7th Cir. 1995). An indirect comment on
a defendant’s failure to testify also violates the Fifth
Amendment if it was “manifestly intended or was of
such character that the jury would naturally and neces-
sarily take it to be a comment on the failure of the
accused to testify.” Id. The government’s statements here
were not direct commentary on the defendants’ failure
to testify; instead they were more general references to
the overall lack of testimony or other evidence chal-
lenging the government’s case. Our job is to examine
whether the statements were inappropriate indirect
comments, and we conclude they were not. The chal-
lenged statements do not appear to have been “manifestly
intended” as a comment on the defendants’ failure to
testify, nor is it clear that a jury would “naturally and
necessarily” take them as such. Butler, 71 F.3d at 254;
Harris, 271 F.3d at 700-01. The government’s reference
to “zero evidence” was a reference to the defendants’
failure to offer competing evidence of any kind, including
testimony from others or documentary evidence.
16 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

In Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997), the
government made statements similar to those above,
commenting on the ability of the defendants to offer
testimony contradicting the government’s evidence.
We held that such statements violate the Fifth Amend-
ment only if a defendant is the “only person capable
of contradicting, denying, rebutting, disputing, chal-
lenging, or controverting the evidence at issue.” Id.; see
also United States v. Alanis, 265 F.3d 576, 586-87 (7th Cir.
2001). Here, as in Yancey, the defendants were not the
only people capable of disputing or challenging the gov-
ernment’s evidence; testimony of non-defendants could
theoretically have been offered to contradict the voice
identifications. See Harris, 271 F.3d at 701 (“[W]here a
witness other than the defendant could have, but does
not, contradict the government’s proof, references to
‘uncontested’ evidence are not improper.”). The defen-
dants have not shown that permitting the jury to hear
the government’s comments was plainly erroneous.
That said, we reiterate the concern expressed in Butler
that prosecutors be “cautious in making this type of
statement” given the Fifth Amendment concerns that can
potentially be implicated. 71 F.3d at 255. A comment like
“zero testimony” could be better articulated to make
clearer that it refers to the balance or lack of evidence in
the case overall, and not specifically to the decision of a
defendant not to testify.1

1
The government also stated that the defendants had access to
4,500 wiretap recordings, and that if the defendants had wanted
(continued...)
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 17

G. Defendant Cook’s Voice Identification
The voice identification of defendant Cook is more
problematic. The government’s primary evidence that
Cook participated in the conspiracy consists of incrim-
inating statements he allegedly made on a number of
the wiretapped phone conversations.2 In order to
identify the voice on the wiretaps as being Cook’s, the
government called Detective Simpson, who testified
regarding Cook’s voice on two occasions—first as the
government put forth its case-in-chief, and then again at
the close of the trial as a rebuttal witness in an effort to
strengthen the identification.

(...continued)
to do so, they could have played any of them for the jury to
contradict the calls that the government had selected to play.
The defendants timely objected to this comment as improperly
shifting the burden of proof, and they raise the same argument
on appeal. This argument fails. A prosecutor may argue infer-
ences based on the balance or lack of evidence, so long
as the jury has been properly instructed as to the burdens of
proof in the case, and so long as the remarks are not improper
commentary on a failure to testify. Butler, 71 F.3d at 255 n.8.
Here, the jury was properly instructed as to the burdens
of proof in the case, and as we have already concluded, there
was not improper commentary regarding testimony violative
of the defendants’ Fifth Amendment rights.
2
The only other evidence against Cook appears to be the
testimony of a co-conspirator referring to him as a customer
of defendant Simmons. The government concedes that with-
out the wiretap recordings, there would not have been suf-
ficient evidence to convict Cook of conspiracy.
18 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

In laying the foundation for his identification of Cook
on the wiretaps in the case-in-chief, Detective Simpson
testified that he recognized Cook’s voice from having
attended some pretrial proceedings and hearing him
speak in open court. Detective Simpson testified he com-
pared the voice he heard in the proceedings to that on
the wiretapped phone conversations, and that in his
opinion Cook was one of the speakers. On cross-exam-
ination, Detective Simpson stated that he had heard
Cook speak in court on “four or five” occasions, and
acknowledged that on these occasions Cook may have
only spoken as little as “two or three” sentences. He also
admitted on cross that he had never personally inter-
viewed Cook, making Cook the only defendant at trial
whose voice identification was not supported by an in-
person interview with the identifying agent. Cook ob-
jected to Detective Simpson’s identification on the basis
that it lacked sufficient foundation, and the district court
overruled the objection, finding that Detective Simpson
had a sufficient level of familiarity to render his opinion.
Cook argues on appeal that the few words he spoke
in open court could not have provided a sufficient basis
for a voice identification.
While the basis for Detective Simpson’s identification
of Cook’s voice was relatively weak, it meets the “low bar
of minimal familiarity” required in our case law, if not
by much. See United States v. Neighbors, 590 F.3d 485, 493
(7th Cir. 2009). Federal Rule of Evidence 901(b)(5) allows
voice identification of a voice on an audiotape “by
opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.”
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 19

(emphasis added). We have consistently held that
minimal familiarity is sufficient for admissibility pur-
poses under Rule 901(b)(5). See Neighbors, 590 F.3d at
493; see also United States v. Recendiz, 557 F.3d 511, 527
(7th Cir. 2009). Challenges to the accuracy of a voice
identification “go to the weight of the evidence, and the
issue is for the jury to decide.” United States v. Alvarez,
860 F.2d 801, 809 (7th Cir. 1988). While Cook spoke rela-
tively little during his pretrial appearances, we cannot
say that the identification was insufficient as a matter
of law. See, e.g., United States v. Mansoori, 304 F.3d 635,
665 (7th Cir. 2002) (while voice identification based on
hearing defendants speak only once in open court was
“relatively weak,” admission was proper because “we
cannot say as a matter of law that the brief opportunity
[the identifying agent] had to hear the defendants in
court was insufficient to permit his voice identification.”).
Detective Simpson’s testimony provided a sufficient
foundation for his identification of Cook’s voice so as to
be admissible; its accuracy was a question for the jury
to weigh.3 See id.; see also Neighbors, 590 F.3d at 493-94.
That said, a witness’s claim to have heard a defendant
in open court should not be accepted as per se sufficient to

3
With regard to accuracy, we note that Detective Simpson
misidentified two of Cook’s codefendants in specific parts of the
wiretap transcripts. On the second day of trial, Detective
Simpson testified that he had on the previous day incorrectly
identified Defendants Jones and Robinson as speakers on five
of the transcribed wiretapped calls that had been introduced
into evidence.
20 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

show minimal familiarity for Rule 901(b)(5) purposes.
Courts should examine what actually transpired at
the court proceeding in question to ensure that the defen-
dant actually spoke enough to give a listener minimal
familiarity with his or her voice. There may well be situ-
ations in which a defendant said so little that a
listener could not claim the minimal familiarity our case
law requires; and in such a situation, a court would be
justified in finding that the voice identification was not
admissible. Here, while Cook spoke relatively little at
his pretrial appearance (by his count, 62 words in total)
he did go beyond simply responding “yes” or “no” to
inquiries by the court and spoke a number of sentences.
While we are comfortable—if barely—that Cook’s in-
court statements provided an adequate foundation
upon which to admit Detective Simpson’s voice iden-
tification, our inquiry does not end here, because Detec-
tive Simpson gave additional testimony that gives rise
to serious questions. Near the end of trial, Cook intro-
duced rebuttal evidence in the form of court transcripts
showing he had only spoken in open court twice, not
the “four or five” times Detective Simpson had initially
claimed. In response, the government recalled Detective
Simpson in an effort to strengthen the voice identification.
Detective Simpson then testified, for the first time, that
in addition to having heard Cook speak in open court,
he had also on one occasion overheard Cook speaking
privately with his attorney for ten to fifteen minutes
before the judge began the proceedings. Detective
Simpson testified that this conversation constituted part
of his voice identification:
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 21

GOVERNMENT COUNSEL: All right. Before the
judge came out on the
bench, did you have
the opportunity to hear
Sam Cook speak?
DETECTIVE SIMPSON: Yes.
GOVERNMENT COUNSEL: For how long?
DETECTIVE SIMPSON: Approximately ten to
15 minutes.
GOVERNMENT COUNSEL: Who was he talking to?
DETECTIVE SIMPSON: His attorney.
[. . .]
GOVERNMENT COUNSEL: Okay. A nd without
getting into the subject
matter of the conversa-
tion, from where you
were seated, could you
hear Mr. Cook speak
with his lawyer?
DETECTIVE SIMPSON: Yes.
GOVERNMENT COUNSEL: Okay. And did they
appear to be speaking
in kind of a normal
tone of voice, or were
they whispering?
DETECTIVE SIMPSON: They were speaking in
a normal tone of voice.
22 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

GOVERNMENT COUNSEL: And is the ten to 15
minutes that you heard
Mr. Cook speak part of
your voice identifica-
tion of Mr. Cook?
DETECTIVE SIMPSON: Yes.
We find it troubling that Detective Simpson may have
eavesdropped, however inadvertently, on a defendant’s
private communications with his attorney (and con-
tinued to do so for ten to fifteen minutes), and equally
troubling that the government saw fit to have Detective
Simpson testify about the conversation. We also find it
strange that Detective Simpson made no mention of this
alleged conversation when he initially testified at the
beginning of trial. During his initial testimony, Detective
Simpson said only that he heard Cook speak “in open
court,” and he made no reference whatsoever to having
heard a private ten-to-fifteen minute conversation. This,
despite the fact that the number of words spoken in
such a conversation would involve far more of Cook’s
voice than any limited open-court statements did, and
thus would likely have been the primary foundation
upon which Detective Simpson based his identification.4

4
We are also concerned that if Detective Simpson did indeed
overhear privileged conversations prior to trial, he could
potentially have shared any information gleaned from such
conversations with Agent Freyberger, his co-case agent who
participated in trial with government counsel. Government
(continued...)
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 23

Cook first objected to Detective Simpson’s testimony
regarding the conversation on attorney-client privilege
grounds, an argument he reiterates on appeal. Troubling
as Detective Simpson’s testimony may be, however, we
do not set aside the district court’s ruling because the
contents or subject matter of the alleged conversation
were not revealed. See Judson Atkinson Candies, Inc. v. Latini-
Hohberger Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008);
United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990).
Detective Simpson testified only that he listened to
Cook’s voice such that he was confident that it was the
same voice that he had heard on the audiotapes. The
district court did not err in overruling Cook’s objection
to the testimony on the basis that it violated his attorney-
client privilege, nor did it err in denying Cook’s request
for a mistrial on the same grounds.
More fundamentally, Cook challenges whether a con-
versation between him and his attorney even occurred,
and maintains he should receive a new trial because he
was unable to test Detective Simpson’s claim or impeach
his testimony. This is because the only people in a posi-
tion to rebut Detective Simpson’s testimony were Cook
or his lawyer, giving rise to a conflict of interest for coun-
sel. On cross-examination of Detective Simpson, defense
counsel challenged the idea that there had been any

(...continued)
counsel stated at oral argument that he did not discuss the
contents of the alleged conversation with Detective Simpson,
but was not aware of whether any discussions had occurred
between Detective Simpson and Agent Freyberger.
24 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

audible conversation between him and Cook and claimed
that Detective Simpson was not telling the truth. At oral
argument before this court, counsel reiterated that no
such conversation occurred, and stated that as a matter
of longstanding practice, he never has conversations
with clients in open court where they could be over-
heard. He also told the district court that the detective’s
testimony “made me a witness in the trial.” Cook’s attor-
ney moved for a mistrial on the same basis minutes
later, as well as on attorney-client privilege grounds,
arguing that “it would be difficult for me to represent
my client and testify at the same time regarding what
was said at counsel table and how it was said and
who could have heard it.” The district court ruled that
there was no attorney-client privilege problem war-
ranting a mistrial. It did not address the conflict of
interest issue.
We review the district court’s evidentiary decisions and
denial of a motion for mistrial for abuse of discretion.
United States v. Lauderdale, 571 F.3d 657, 660 (7th Cir. 2009);
United States v. McCulley, 178 F.3d 872, 875 (7th Cir. 1999).
While the government argues that our review should be
for plain error because Cook did not specifically object to
Detective Simpson’s testimony at the time of the direct
examination, citing Harris, 271 F.3d at 700, we conclude
otherwise based on a review of the record. It is true that
Cook did not interpose a conflict-based objection during
the direct testimony, but he did alert the district court
to the issue almost immediately thereafter. Seconds
after the direct examination was over and cross was
underway, counsel stated that Detective Simpson “made
me a witness in the trial, Judge, and he’s not telling the
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 25

truth.” While counsel certainly could have been more
artful in the way he presented the conflict-of-interest
issue to the court, we conclude that it was sufficient to
put the court on notice as to the basis of Cook’s objection.
This was not a situation involving “the total absence of
an objection below that normally reduces our review to
a search for plain error.” See United States v. Carraway,
108 F.3d 745, 761 (7th Cir. 1997).
We conclude that the trial court abused its discretion
in denying Cook’s motion for a mistrial after having
admitted Detective Simpson’s testimony without af-
fording Cook an opportunity to rebut it. Detective
Simpson testified as to a key disputed fact, but because of
the unresolved conflict of interest the testimony created,
Cook had no opportunity to challenge the testimony
by presenting his own version of events. The jury heard
only one side of a critical issue as if it were uncontro-
verted. The government has two responses to this: first,
that Cook could have called another witness to testify
about the conversation and avoid any conflict, and sec-
ond, that Cook’s counsel conveyed to the jury that Cook
challenged the testimony in the way that he cross-exam-
ined Detective Simpson. Both of these arguments lack
merit.
The government first argues that Cook’s attorney is not
the only witness that could have rebutted Detective
Simpson’s testimony, and that he could have called a
number of courtroom personnel, such as a marshal, to
testify about the ability to overhear a conversation at
counsel’s table. This argument misses the mark and is
entirely speculative. The government does not point to
26 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

anything in the record demonstrating the presence of
specific courtroom personnel at the hearing in question.
Even assuming that such individuals could be identi-
fied, the hearing took place more than a year before
Detective Simpson’s testimony. Any courtroom person-
nel that were present might not recall the proceeding
at all, let alone details such as whether a specific con-
versation did or did not occur. Moreover, it would be
unrealistic to expect defense counsel to locate and inter-
view these potential witnesses on such short notice at
such a late stage of trial. Realistically, given the difficult
timing and the unlikelihood of finding any other wit-
nesses, Cook and his lawyer were the only two people
that could have challenged Detective Simpson’s unex-
pected testimony.
The government also argues that the jury heard Cook’s
version of events because defense counsel effectively
“conveyed to the jury” that he disputed Detective
Simpson’s claim through comments he made. A review
of the record reveals that this is not the case. Defense
counsel did make an attempt to dispute Detective
Simpson’s version of events on cross-examination (obvi-
ously an awkward exercise given the circumstances) but
that attempt was curtailed by the district court. When
defense counsel stated that Detective Simpson was “not
telling the truth” regarding a conversation, the court
ordered the comment stricken and instructed the jury
not to consider it:
DEFENSE COUNSEL: Mr. Simpson, you were
sitting at that table?
DETECTIVE SIMPSON: Yes.
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 27

DEFENSE COUNSEL: And I was sitting at that
table?
DETECTIVE SIMPSON: You were sitting on that
side, yes.
DEFENSE COUNSEL: And if I told you I was
whispering, you’d say I’m
a liar?
DETECTIVE SIMPSON: I wouldn’t call you a liar.
GOVERNMENT COUNSEL: Objection, Y ou r
Honor.
DEFENSE COUNSEL: He made me a witness in
the trial, Judge, and he’s
not telling the truth.
GOVERNMENT COUNSEL: I’d move to strike.
THE COURT: W e ’ll s how th a t c o m m e nt
stricken, ladies and gentle-
men. You’re not to consider
that.
Here, counsel was not able to convey to the jury, in any
meaningful way, the fact that Cook disputed Detective
Simpson’s claim. Moreover, even if the district court
had not stricken counsel’s statements, Cook should
not have had to rely only on comments from counsel
during cross-examination in order to challenge Detective
Simpson’s testimony. In order to have had a meaningful
opportunity to challenge Detective Simpson’s testimony,
Cook’s counsel would have had to take the stand and
testify (Cook had chosen to exercise his Fifth Amendment
28 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

rights and not testify at trial). Whether and how Cook’s
counsel could have done so would have been deter-
mined by the advocate-witness rule. The advocate-
witness rule generally bars a lawyer from acting as both
an advocate and a witness in the same proceeding
except under special circumstances. United States v. Mar-
shall, 75 F.3d 1097, 1106 (7th Cir. 1996); United States v.
Ewing, 979 F.2d 1234, 1235-36 (7th Cir. 1992).5 The rule
“articulates the professional impropriety of assuming
the dual role of advocate and witness in a single pro-
ceeding [and] has deep roots in American law.” United
States v. Johnston, 690 F.2d 638, 642 (7th Cir. 1982). The
rule recognizes the danger that an attorney might not be
a fully objective witness, as well as the risk that a jury
could confuse the two roles when deciding how much
weight to accord to a testifying attorney’s statements.
See United States v. Morris, 714 F.2d 669, 671 (7th Cir. 1983);
see also Ewing, 979 F.2d at 1236.
It is within the discretion of the trial court to determine
whether the advocate-witness rule bars counsel from
testifying in a particular case without withdrawing.
Morris, 714 F.2d at 671. The problem in this case is that
the district court never exercised that discretion, because
it did not address the conflict of interest claimed by
Cook’s counsel when ruling on his request for a mistrial,

5
The rule is reflected in Indiana’s Rules of Professional Con-
duct, which have been adopted in the United States District
Court for the Southern District of Indiana pursuant to Local
Rule 83.7(g). See Ind. Rules of Prof’l Conduct 3.7.
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 29

even though counsel specifically raised the argument
when making his motion. We are presented with a
peculiar situation in which the parties and the court
recognized the conflict of interest that Detective
Simpson’s testimony created, but took no steps to
actually address it.6 Cook’s counsel could have taken
the stand to impeach Detective Simpson’s testimony,
either as his lawyer or after having withdrawn,
depending on the court’s application of the advocate-
witness rule. Or, the district court might have deter-
mined that the conflict of interest was sufficiently
serious that it presented a situation warranting whole-
sale exclusion of Detective Simpson’s disputed testi-
mony. See United States v. Messino, 181 F.3d 826, 830
(7th Cir. 1999). The record indicates that none of these
avenues were explored before denying Cook’s motion
for a mistrial.7

6
The government was certainly aware of the conflict as well.
In opposing Cook’s motion for a mistrial, government counsel
stated, “I don’t want to get into an argument between—and
insert myself into an argument between [defense counsel]
and Mr. Simpson over what was said at what voice because
I wasn’t there.”
7
While it did not have a duty to raise the issue on its own, the
district court could have addressed the question of whether and
how to have Cook’s counsel testify once Cook alerted the
court to the conflict of interest that had arisen. See, e.g., United
States v. Watson, 87 F.3d 927, 931-32 (7th Cir. 1996) (district court
“was correct to flag the issue” of potential advocate-witness
(continued...)
30 Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al.

The error in admitting Detective Simpson’s unrebutted
testimony was not harmless, because it is likely to have
had an impact on the verdict against Cook. See United
States v. Wantuch, 525 F.3d 505, 515 (7th Cir. 2008)
(reversal warranted only if testimony had a “substantial
and injurious effect or influence on the jury’s verdict”).
If the jury had convicted Cook without Detective
Simpson’s later testimony, we could have been satisfied
that the jury thought his voice identification based on
the words that he heard Cook speak in open court was
sufficient. However, given that the disputed rebuttal
testimony was admitted, we cannot be sure whether the
jury thought that the original identification alone was
sufficient, or whether it was the testimony regarding
the fifteen-minute conversation that convinced the jury
it was Cook’s voice on the tape. Given that the latter
represents far stronger evidence, we can assume it had
an impact in the jury’s decision. And given the scant
evidence aside from the wiretap implicating Cook as
part of the conspiracy, if the jury did not believe that it
was his voice on the tapes, it could not have found
him guilty beyond a reasonable doubt.
“We will reverse a district court’s denial of a mistrial
only if we have a strong conviction that the district
court erred. The ultimate inquiry is whether the
defendant was deprived of a fair trial.” United States v.

(...continued)
problem); see also 8 Fed. Proc., L. Ed. § 20:231 (“a judge
may . . . sua sponte raise ethical problems relating to an attor-
ney’s participation in a proceeding”).
Nos. 09-1740, 09-1822, 09-1823, 09-1824, et al. 31

Danford, 435 F.3d 682, 686 (7th Cir. 2005) (internal quota-
tion marks and citation omitted). Here, Cook was
deprived of a fair trial when the jury heard critical, dis-
puted testimony from Detective Simpson without Cook
having had an opportunity to challenge it. We are com-
pelled to vacate Cook’s conviction and remand his case
for retrial.

III. CONCLUSION
For the foregoing reasons, Cook’s conviction is V ACATED
and his case is R EMANDED to the district court for pro-
ceedings consistent with this opinion. The convictions
and sentences of all other defendants are A FFIRMED.

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