In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1647 & 09-3454
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
H URREON S EAN W ALKER and
R ASHAD L OGAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 0270—Charles R. Norgle, Sr., Judge.
A RGUED F EBRUARY 25, 2011—D ECIDED M ARCH 9, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Hurreon Walker and Rashad
Logan were convicted of drug and gun charges after
separate jury trials. Both defendants were sentenced to
25 years’ imprisonment. They had plotted with two
other men to rob a cocaine stash house at gunpoint, but
the stash house did not actually exist, and their partners
2 Nos. 09-1647 & 09-3454
turned out to be an undercover agent and a paid infor-
mant. That informant, Jamie Ringswald, had targeted
the defendants and generated the bulk of the evidence
against them. He also played a significant role at their
trials. Yet Ringswald was not called by prosecutors to
testify, and instead the government introduced his story
entirely through audio recordings and narrative from
investigators. Prosecutors justified this approach with
the explanation that none of Ringswald’s out-of-court
statements was being offered for its truth. What’s more,
the government persuaded the district court to prospec-
tively curtail impeachment of Ringswald.
On appeal Walker and Logan contend that their
Sixth Amendment right to confront Ringswald was vio-
lated by the government’s unfettered use of his out-of-
court statements and the district court’s restriction on
impeachment. Logan also contends that his convictions
are not supported by sufficient evidence and that his
overall prison sentence is unreasonably long. Logan’s
separate arguments lack merit, but we agree with the
defendants that the handling of Ringswald’s statements,
some of them obvious hearsay, raises a concern about
the Confrontation Clause. We conclude, however, that
any error was harmless, and thus we affirm the judg-
ment as to each defendant.
I.
Ringswald had accumulated at least five felony con-
victions before he targeted Walker and Logan while
working as an informant for the Bureau of Alcohol, To-
Nos. 09-1647 & 09-3454 3
bacco, Firearms and Explosives (“ATF”). Initially the
ATF had been investigating Walker’s brother, but he
spurned Ringswald’s proposal to rob a stash house. He
volunteered, however, that Walker and Logan might be
willing. Agents then sent Ringswald after Walker, who
recruited Logan. Using details scripted by the ATF,
Ringswald explained that a disgruntled courier for a
Mexican cartel, later played by ATF Special Agent Christo-
pher Bayless, wanted help in stealing the cocaine from
one of the cartel’s stash houses. At a party on April 24,
2007, Ringswald introduced Bayless to Walker and
Logan in the first of three meetings conducted under
ATF surveillance. Bayless would become the govern-
ment’s principal witness against the defendants and
provide the foundation for voice recordings made by
Ringswald. Bayless also would recount statements made
by Ringswald to another ATF agent.
The April 24 party was captured on audio and video.
Agent Bayless asked the defendants if Ringswald had
shared the “skinny” on the planned heist. Walker said
yes but wanted Bayless to repeat the “lowdown.” The
agent then outlined his plot to rob a stash house in re-
taliation for being forced to help pay for cartel drugs
that had been stolen from a courier he recruited. Bayless
explained that the cartel’s couriers were given a 45-
minute window to arrive at a stash house and pick up
loads of cocaine typically weighing between 15 and 20
kilograms. Each stash house, he said, was situated in one
of two contiguous Chicago suburbs, but was never the
same location used twice. Couriers were not told the
address in advance, although the choice of suburb was
4 Nos. 09-1647 & 09-3454
disclosed one day before a delivery. Two armed guards,
Bayless cautioned, would be posted at the stash house.
Walker absorbed this information and commented that
they didn’t “need either one o’ their asses” and “might
have to pop these mo’-fuckas.” He proposed that they
rush in “and pop the one” at the door.
From there the conversation turned to the mechanics
of the robbery. Bayless told Walker and Logan that the
next distribution was planned for sometime after 3:00 p.m.
on May 1, seven days later. Bayless proposed that on
that day and hour the four of them rendezvous at a
forest preserve (where, he mused, the probability of
encountering surveillance cameras would be low) to
await news of the stash-house address. They decided
that Bayless would enter the stash house first, followed
by the others. The conversation ended in agreement to
reconvene for another strategy session on April 30 after
Bayless had learned in which of the two suburbs the
stash house was located.
Throughout this conversation, Walker did most of the
talking for the defendants. Logan chimed in, however,
when the discussion turned to shooting the stash-house
guards: “It comes to it, we ain’t, we ain’t duckin’ it, though.
You feel me”? When Agent Bayless replied, “Ya gotta
do what you gotta do,” Logan agreed, “Hell, yeah. No
prob’m.” Logan also proposed finding a hotel in a neigh-
boring town where they could lie low after the robbery.
Two days later, on April 26, Ringswald appeared at the
ATF office and told Special Agent Matthew Inlow, who
was working with Agent Bayless, that Walker had just
Nos. 09-1647 & 09-3454 5
given him a Smith & Wesson .357 Magnum revolver. Or
more precisely, that was the hearsay account of Walker’s
deed elicited through Agent Bayless; prosecutors did not
call Ringswald at either trial, nor at Logan’s trial did they
call Agent Inlow. According to Bayless, the gun had
been inside a purse in Ringswald’s car when the
informant arrived at the ATF office.
The April 30 meeting went forward as planned, except
that Logan did not attend. As before, the ATF obtained
video and audio recordings. Walker strategized with
Ringswald and Agent Bayless about whose car to use,
who should drive, and where in the car the defendants
and Ringswald should hide during the trip to the
stash house. Bayless confirmed the May 1 delivery and
reminded the group that the guards at the stash house
would be armed. He also got Walker to admit giving the
Smith & Wesson revolver to Ringswald. That “fuckin’ 3-5-7
you dropped Jamie,” the agent told Walker, “is huge,
man!” Walker chuckled and said he also had access to
“a few automatics.” But usually, he told Bayless, when
adversaries “see some’in’ like that” revolver, they “know
when to quit.”
The next day Ringswald was outfitted with a tape
recorder and video camera before he met Walker and
Logan for the trip to the forest preserve. On the ride
over in Walker’s vehicle, Logan groused that, despite
expecting “to get a lot o’ keys” of cocaine, he really “would
like to have some cash” from the robbery. And whether
two guards or five, he said, “I’ll go in there” for the
money. As evidenced by the audio recording, Walker
6 Nos. 09-1647 & 09-3454
obtained Ringswald’s assurance that Bayless would be
carrying the Smith & Wesson revolver. Even so, the three
men agreed, there was risk in committing the robbery
armed only with a single gun (a “Mission Impossible-ass”
task, in Logan’s opinion), so the group detoured to a
residence for another weapon. Walker went into the
house alone, and while waiting Logan ventured that he
knew where to get another gun if Walker failed. But
Walker returned with a “heater,” which, he boasted,
would “even up the odds.” He added that he “could o’ got
pistols” from a “lot o’ motha-fuckas.”
When the group joined Agent Bayless at the forest
preserve, Ringswald told him, “I got one more pistol on
me.” After the four men had reviewed the robbery plan
again, Bayless gave the arrest signal. Walker and Logan
ran but were captured quickly by the SWAT team hiding
in the woods. Ringswald gave the agents a Sturm Ruger
revolver. The gun had not been in his possession when
ATF agents searched him before he joined Walker and
Logan in the vehicle.
The defendants were taken to a police station and
interrogated. Walker’s statements were not offered at
his trial. Logan’s confession was admitted. Logan had
said after Miranda warnings that Walker recruited him
to help with the robbery, that he accompanied Walker
and Ringswald to retrieve the first gun from the home
of Walker’s girlfriend, and that they obtained the second
gun from her house on their way to the forest preserve.
A grand jury indicted Walker and Logan together, but
the cases were severed for trial because of Logan’s con-
Nos. 09-1647 & 09-3454 7
fession. Both men were charged with conspiring to pos-
sess cocaine with intent to distribute, 21 U.S.C. §§ 846,
841(a)(1); attempting on May 1 to possess cocaine with
intent to distribute, id.; and possessing and carrying the
Sturm Ruger revolver in connection with the drug
offenses, 18 U.S.C. § 924(c)(1). Walker also was charged
with two additional counts of possessing a firearm after
a felony conviction, id. § 922(g)(1).
Walker was tried first. Before then the government
filed a motion in limine seeking to introduce, at both
trials, audio and video recordings of conversations be-
tween Ringswald and the defendants. Prosecutors said
that Ringswald would not be a government witness
but argued that his absence would not violate the defen-
dants’ rights under the Confrontation Clause of the
Sixth Amendment so long as “the government specifies
(and the jury is instructed)” that his out-of-court state-
ments “are offered not for their truth, but rather are
offered to provide context so as to make the defendant’s
statements intelligible as admissions.” At the same time
the government proposed restricting the defendants’
ability to impeach Ringswald. According to prosecutors,
the admission of recorded conversations involving the
nontestifying Ringswald would “not confer any right to
cross-examine or impeach” him under the Confronta-
tion Clause or Rules 607 and 806 of the Federal Rules of
Evidence. The government insisted that the defendants
could impeach Ringswald only if they called him them-
selves, and then only if his trial testimony contradicted
earlier statements. Moreover, prosecutors maintained,
the defendants should not be permitted to call Ringswald
8 Nos. 09-1647 & 09-3454
without making “a pretrial showing of the relevance of
any expected testimony.”
Walker reacted by asking the district court to compel
prosecutors to “produce” Ringswald at trial. Walker
emphasized Ringswald’s significant role in the govern-
ment’s sting, and suggested that admission of his
recorded statements would, in his absence, violate the
Confrontation Clause as interpreted in Crawford v. Wash-
ington, 541 U.S. 36 (2004). Walker also noted that weighing
Ringswald’s credibility would be an important consider-
ation.
The district court issued a written order granting the
government’s motion in limine without directly com-
menting on Walker’s response:
Statements of the CI will be admitted not for their
truth but to establish context to the otherwise admissi-
ble statements of the co-conspirators or statements
admissible as admissions. Thus, the CI may not be
called by the defense for the purpose of challenging
the truth of any statements at issue or for the sole
purpose of impeachment. Whether the CI may be
called by the defense for some other purpose is not
decided by this order. Counsel may be heard on this
issue outside the presence of the jury before the CI
is called.
The district court repeated this ruling immediately prior
to the start of Walker’s trial. Before jury selection, prosecu-
tors announced they would not be calling Ringswald
but had served him with a trial subpoena and would
make him available to Walker as a defense witness. That
Nos. 09-1647 & 09-3454 9
representation prompted the court to tell Walker he
could not call Ringswald “simply to impeach him, to
dirty him up, so to speak, or otherwise attack him without
any substantial reason for doing so.” The fact that the
government had made him available, the court ex-
plained, did not mean that Ringswald could be called
for an “illegitimate purpose.” Walker did not call
Ringswald to testify nor did he further object
when prosecutors introduced evidence of the inform-
ant’s out-of-court statements.
At both trials Agent Bayless provided the foundation
for the recordings and explained the conversations
secretly taped on April 24, April 30, and May 1, 2007.
Those recordings included Ringswald’s discussions with
Walker and Logan concerning the planning of the rob-
bery. Included, too, was Ringswald’s statement to
Bayless on May 1 that he had acquired another gun.
Prosecutors also elicited through Bayless that Ringswald
had delivered the Smith & Wesson revolver to Agent
Inlow, saying he received it from Walker. Ringswald
was not a government witness at either trial, and Inlow
did not testify at Logan’s trial.
Although Walker stood on his written response to the
government’s pretrial motion in limine, Logan objected
before Agent Bayless recounted that Walker had given
the Smith & Wesson revolver to Ringswald, who then
gave it to Agent Inlow. Logan disputed the district court’s
assertion that this testimony was not being offered to
prove the matter asserted; Bayless’s testimony, Logan
ventured, was all that tied the defendants to this par-
10 Nos. 09-1647 & 09-3454
ticular gun. Logan added that this hearsay was prob-
lematic because the government would not be calling
Ringswald to testify. The district court reasoned that
the hearsay concern was resolved by the government’s
representation that Inlow would testify (although he
never did), and Logan was unable to change the court’s
mind by explaining that Bayless was sponsoring double
hearsay and that Inlow himself would only be repeating
what he was told by Ringswald.
Both defendants did manage to impeach Ringswald
while cross-examining Agent Bayless. Through Bayless the
jurors learned that over several years Ringswald had
received from the ATF tens of thousands of dollars for
his assistance. Cross-examination also revealed that
Ringswald was on probation for a state conviction and
facing revocation when he assisted the ATF in this case.
Logan did call Ringswald, prompting the government
to remind the district court about its pretrial order
limiting the defendants’ ability to make him a witness
simply to impeach his out-of-court statements. The prose-
cutor demanded that the court force Logan’s attorney
to state “his reason aside from impeachment for calling
Mr. Ringswald in this case.” The court replied that its
written ruling had rested on precedents involving infor-
mants who played a less significant role than Ringswald.
Still, the court did not lift its restriction on cross-exam-
ining Ringswald, but instead permitted Logan to
inquire about his statement to Agent Bayless at
the forest preserve that he had possession of the
Sturm Ruger revolver. The court reiterated, however, that
Nos. 09-1647 & 09-3454 11
Ringswald could not be called “merely to dirty him up,
as might be the objective in another case on different
facts and different circumstances.”
II.
Walker was convicted on all counts. Logan was
convicted on the conspiracy and § 924(c)(1) counts
but acquitted of attempting on May 1 to possess cocaine
for distribution. Walker has not raised an appellate
claim about the sufficiency of the evidence, but Logan
does. He contends that the government failed to prove
him guilty of the drug conspiracy or the charged viola-
tion of § 924(c)(1). We will uphold the verdicts if we
conclude, after reviewing the trial evidence in the light
most favorable to the government, that a rational trier
of fact could have found the essential elements of the
crimes beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); United States v. Woods, 556
F.3d 616, 621 (7th Cir. 2009).
To convict Logan of conspiracy under 21 U.S.C. § 846, the
government was obligated to prove only that he and
Walker agreed to acquire cocaine for distribution. United
States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2011);
United States v. Longstreet, 567 F.3d 911, 919 (7th Cir.
2009). The defendants’ recorded statements—standing
alone—provide overwhelming evidence that they
plotted an armed robbery with the aim of stealing a
substantial quantity of cocaine. Logan’s confession,
moreover, makes his insufficiency claim particularly
frivolous. Indeed, in United States v. Corson, 579 F.3d 804,
12 Nos. 09-1647 & 09-3454
806-11 (7th Cir. 2009), we rejected a claim of insufficient
evidence in a prosecution resting on strikingly similar
evidence. There, the defendants also had been convicted
of conspiring to carry out an armed robbery of a fictitious
stash house to obtain cocaine for sale. In rejecting their
sufficiency challenge, we recounted that the defendants
had met an informant several times to discuss the pro-
posed robbery and refine the details, expressed willing-
ness to kill the stash-house guards if necessary, acknowl-
edged the quantity of cocaine they expected to steal,
settled on how to split the loot, given repeated
assurances that they were “down” for the job, and arrived
together at the staging area (where drug agents were
waiting to make arrests). Id. at 811. These same factors
are present here, and in addition it was Logan who
wanted to broaden the plot to steal whatever cash might
be available in the house even if the robbery would
become riskier. See also United States v. George, 658 F.3d
706, 709 (7th Cir. 2011); United States v. Lewis, 641 F.3d
773, 782 (7th Cir. 2011).
Logan’s challenge to his gun conviction is equally weak.
His argument is premised on the mistaken belief that
the government was required to prove that he personally
possessed the Sturm Ruger revolver. Yet a § 924(c)(1)
conviction may rest on a theory of coconspirator liability
under Pinkerton v. United States, 328 U.S. 640 (1946),
which the government can establish with proof that the
defendant reasonably could have foreseen that a
coconspirator would arm himself to further the con-
spiracy, United States v. Haynes, 582 F.3d 686, 707 (7th
Cir. 2009); United States v. McLee, 436 F.3d 751, 758 (7th
Nos. 09-1647 & 09-3454 13
Cir. 2006); Woodruff v. United States, 131 F.3d 1238, 1243
(7th Cir. 1997). Logan’s jury was instructed on Pinkerton,
and he does not dispute that a rational finder of fact
could have concluded that Walker acquired the revolver
during, and to further, the conspiracy. And plainly the
existence and purpose of the Sturm Ruger revolver was
known to Logan: He was present when Walker stopped
at his girlfriend’s house to retrieve this second gun, and
it was Logan who suggested that the planned heist
would be a “Mission Impossible-ass” assignment with
only one firearm.
Our conclusion about the strength of the evidence
makes easier the task of addressing the defendants’
confrontation claim, which has legal merit but no
practical significance. Walker and Logan jointly argue
that their Sixth Amendment right to confrontation was
violated when the district court allowed prosecutors
to introduce hearsay statements made by Ringswald and
then compounded the error by restricting their ability
to impeach him. As a result, the defendants maintain, a
new trial is warranted. The defendants do not argue
for reversal on the ground that the introduction of the
statements violated the rules of evidence, and therefore
only the Confrontation Clause challenge is presented.1
1
The concurrence maintains that we cannot decide the Con-
frontation Clause issue because the defendant could have also
successfully presented a challenge based on Rule 802. The
proviso that we decide statutory issues before constitutional
ones applies to claims before the court, as was the situation in
(continued...)
14 Nos. 09-1647 & 09-3454
1
(...continued)
the case cited by the concurrence, New York City Transit
Authority v. Beazer, 440 U.S. 568, 582 (1979); it has not been
interpreted to mean that a litigant must present any possible
claims, nor have we refused to consider a constitutional claim
on the basis that the defendant could also have brought a
successful statutory claim. We should not in fact encourage
the kitchen-sink approach that would ensue. The concurrence
would refuse to decide preserved constitutional claims
where other non-constitutional issues not raised would
have required reversal. That turns forfeiture doctrine on its
head—from preventing a defendant from raising an unpre-
served claim to preventing a defendant from raising a preserved
claim because a separate meritorious claim was not pursued
as well. It would require a court to engage in its own fishing
expedition, scouring the record for possible evidentiary chal-
lenges that could have been raised, and then deciding without
the benefit of argument from the parties whether those
claims would have been successful. Where the answer is yes,
the court would then be prevented from considering the
constitutional claim. Where the errors are not harmless, it is
difficult to see where this doctrine would leave us. Apparently,
we would have to rule against the defendant on a meritorious
claim because a second meritorious claim was not pursued,
or sua sponte relieve the defendant of his forfeiture and decide
the unargued claim. Neither option is sound. The Confronta-
tion Clause is not subsumed by the rules of evidence, such that
it may only be used to challenge those rules, as the concurrence
would hold. It protects the right to confront witnesses. Under
the Confrontation Clause, the defendants were not required
to demand the exclusion of the evidence; they could demand
(continued...)
Nos. 09-1647 & 09-3454 15
The government counters that both defendants forfeited
this claim by failing to make a focused objection. We are
skeptical of that contention, especially since Walker made
explicit reference to Crawford v. Washington in his written
opposition to the government’s motion in limine. The
district court’s order granting that motion was applicable
to both defendants, and the government’s silence—in its
brief and at oral argument—about Walker’s reference
to Crawford is illuminating. As we shall see, however,
plenary review would still lead us to conclude that any
confrontation error was harmless, and thus we can dis-
pense with further discussion about the clarity of the
defendants’ objections. See United States v. Sachsenmaier,
491 F.3d 680, 683 (7th Cir. 2007); United States v. Jones,
248 F.3d 671, 675 n.1 (7th Cir. 2001).
The Confrontation Clause of the Sixth Amendment
guarantees the right of the accused to confront the wit-
nesses against him. Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986). As the Supreme Court has repeatedly recog-
nized, “ ‘the main and essential purpose of confrontation
is to secure for the opponent the opportunity of cross-
examination.’ ” Id.; Delaware v. Fensterer, 474 U.S. 15, 19
1
(...continued)
instead that the government produce the witness if introducing
the evidence, which is what the defendants chose to do. The
government declined to call Ringswald, and there is nothing
that should present this court from considering the de-
fendants’ properly-preserved constitutional claim.
16 Nos. 09-1647 & 09-3454
(1985); Davis v. Alaska, 415 U.S. 308, 315-16 (1974). The
Court thus has held that under the Confrontation Clause,
testimonial statements of a witness who did not appear
at trial may be admitted only if the witness is unavailable
and the defendant had a prior opportunity to cross-exam-
ine. Crawford v. Washington, 541 U.S. 36, 53-4, 59 (2004).
Moreover, it is not enough that the witness is available
to be subpoenaed at trial by the defendant. The Supreme
Court addressed that situation in Melendez-Diaz v. Massa-
chusetts, 129 S. Ct. 2527 (2009), in which the respondent
asserted that there was no Confrontation Clause viola-
tion because the petitioner had the ability to subpoena
the analysts whose lab reports were introduced as evi-
dence. The Court held that the power to subpoena wit-
nesses, whether through state law or the Compulsory
Process Clause, “is no substitute for the right of confronta-
tion.” Id. at 2540. The Court then explained:
Converting the prosecution’s duty under the Con-
frontation Clause into the defendant’s privilege
under state law or the Compulsory Process Clause
shifts the consequences of adverse-witness no-shows
from the State to the accused. More fundamentally,
the Confrontation Clause imposes a burden on the
prosecution to present its witnesses, not on the defen-
dant to bring those adverse witnesses into court.
Its value to the defendant is not replaced by a system
in which the prosecution presents its evidence via
ex parte affidavits and waits for the defendant to
subpoena the affiants if he chooses.
Nos. 09-1647 & 09-3454 17
Id.; see also 4 Clifford S. Fishman and Anne T. McKenna,
Jones on Evidence § 25A:49 (Supp. 2011-12). Accordingly,
a government seeking to admit testimonial statements
of a witness must either produce that witness at trial or
establish that the witness is unavailable and that the
defendant had a prior opportunity for cross-examination.
Even if the witness is produced at trial, the Confrontation
Clause may be violated if the court unduly restricts cross-
examination. The Confrontation Clause guarantees an
opportunity for a thorough and effective cross-examina-
tion, though not one that is unbounded. Fensterer, 474
U.S. at 20; United States v. Sasson, 62 F.3d 874, 882 (7th
Cir. 1995). A trial court may impose reasonable limits on
the scope of cross-examination, but the defendant’s
rights under the Confrontation Clause may be violated
if those limitations completely foreclose a defendant
from exploring the witness’ bias or motive to testify.
See Van Arsdall, 475 U.S. at 679; Sasson, 62 F.3d at 883.
As the defendants recognize, the vast majority of
Ringswald’s statements on the recordings constitute
admissible nonhearsay because they were not offered
for their truth. Ringswald was following an ATF script
when he enlisted and plotted with the defendants to
rob the phony stash house, so his parts of the recorded
conversations were offered to make the defendant’s
statements intelligible. See United States v. Gaytan, 649
F.3d 573, 580 (7th Cir. 2011); United States v. York, 572 F.3d
415, 427 (7th Cir. 2009); United States v. Nettles, 476 F.3d
508, 517-18 (7th Cir. 2007); United States v. Van Sach, 458
F.3d 694, 701 (7th Cir. 2006). Yet Ringswald’s statements
18 Nos. 09-1647 & 09-3454
to Agent Inlow conveying that Walker gave him the
Smith & Wesson revolver, as well as his recorded state-
ment in the forest preserve alerting Agent Bayless about
the newly acquired Sturm Ruger revolver, are textbook
hearsay. These statements were offered for their truth,
and we are disturbed by the government’s assertion that
they were introduced for the ostensibly nonhearsay
purposes of providing “context” and showing the course
of the government’s investigation. And perhaps more
troubling is the prosecutors’ belief that Bayless could
provide the foundation for the admission of Ringswald’s
hearsay statements to Agent Inlow, who did not even
testify at Logan’s trial.
The government’s position displays a misunder-
standing about the permissible use of an informant’s out-
of-court statements. We have explained that such state-
ments are admissible as nonhearsay when offered to
make a defendant’s recorded statements intelligible for
the jury (that is, for context), Nettles, 476 F.3d at 517-18,
or when brief and essential to “bridge gaps in the trial
testimony” that might significantly confuse or mislead
jurors, Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011).
But these limited nonhearsay uses do not “open the door
for law enforcement officers to ‘narrate the course of their
investigations, and thus spread before juries damning
information that is not subject to cross-examination.’ ” Id.
at 1047 (quoting United States v. Silva, 380 F.3d 1018, 1020
(7th Cir. 2004)). Indeed, the argument the government
makes to us now is one that we have rejected already:
“Under the prosecution’s theory, every time a person says
to the police ‘X committed the crime,’ the statement
Nos. 09-1647 & 09-3454 19
(including all corroborating details) would be admissible
to show why the police investigated X. That would eviscer-
ate the constitutional right to confront and cross-examine
one’s accusers.” Silva, 380 F.3d at 1020.
The government repeatedly hides behind its asserted
needs to provide “context” and relate the “course of
investigation.” These euphemistic descriptions cannot
disguise a ploy to pin the two guns on Walker while
avoiding the risk of putting Ringswald on the stand. The
government was free to elicit through Agent Inlow that
Ringswald had given him the Smith & Wesson. The
government also was free to elicit through Agent Bayless
that the informant had given him the Sturm Ruger. But
if other admissible evidence could not satisfactorily
link these guns back to the defendants, prosecutors were
not free to ignore the rules of evidence in the interest of
disassociating themselves from their informant. A pros-
ecutor surely knows that hearsay results when he elicits
from a government agent that “the informant said he
got this gun from X” as proof that X supplied the gun. On
this point we agree with the defendants that the gov-
ernment’s use of Ringswald’s out-of-court statements
about the source of the guns cannot be understood
any other way.
It follows that these particular statements constituted
testimonial hearsay. And since Ringswald was available
and the government did not call him to testify at
Walker’s trial, Walker’s right to confrontation was vio-
lated. Crawford, 541 U.S. at 53-4; Melendez-Diaz, 129 S. Ct. at
2540; Silva, 380 F.3d at 1019-20. The same is arguably true
20 Nos. 09-1647 & 09-3454
about Logan; although it might seem that the confronta-
tion issue was resolved when Logan himself called
Ringswald, the government has made little effort
to counter Logan’s contention that his questioning of
the informant was cabined to the point that there was
no confrontation at all. See Van Arsdall, 475 U.S. at 679;
Stock v. Rednour, 621 F.3d 644, 649 (7th Cir. 2010), cert.
denied, 131 S. Ct. 1022 (2011); United States v. Martin, 618
F.3d 705, 727-28 (7th Cir. 2010). Nonetheless, we review
violations of the Confrontation Clause for harmless
error. United States v. Adams, 628 F.3d 407, 416 (7th Cir.
2010), cert. denied, 132 S. Ct. 201 (2011). “ ‘Whether an
error is harmless beyond a reasonable doubt depends
upon factors such as the importance of the witness’s
testimony in the prosecution’s case, whether the testi-
mony was cumulative, the presence or absence of corrobo-
rating or contradictory evidence and the overall strength
of the prosecution’s case.’ ” Martin, 618 F.3d at
730 (quoting United States v. Smith, 454 F.3d 707, 715
(7th Cir. 2006)).
In this case we are confident that whatever constitu-
tional violation resulted from the government’s introduc-
tion of testimonial hearsay was harmless beyond a rea-
sonable doubt. The hearsay linking the two guns to the
defendants was inconsequential in light of their own
recorded statements. Our conclusion that overwhelming
evidence was presented against Logan applies equally
to Walker, and that assessment would not be different
even if the district court had excluded the hearsay
elicited through Agents Bayless and Inlow. Walker
bragged to Bayless—on tape—that he had given Ringswald
the Smith & Wesson revolver. And with evidence that
Nos. 09-1647 & 09-3454 21
includes the nonstop recording of the defendants’ trip
with Ringswald to the forest preserve, there is not a hint
of doubt that the Sturm Ruger revolver carried by
Ringswald at the end of that journey had been picked
up along the way. Thus the government’s strategy, al-
though not to be condoned, did not harm the defendants.
That brings us to a final argument, again raised by
Logan alone. He contends that his overall prison sentence
is unreasonably long because the district court did not
reduce it to compensate for what Logan characterizes as
“sentencing entrapment.” Logan explains that in the
past his drug dealing had involved very small quantities,
“in stark contrast to the 80 to 100 kilograms of cocaine”
Agent Bayless had bandied in front of him “to induce
him to participate in the stash house robbery.” The ATF
inflated the “payday,” he says, to ensure a 20-year mini-
mum term for the drug conspiracy.
We reject this contention. “Sentencing entrapment” may
arise when investigators work unrelentingly to persuade
a target who is predisposed to commit a particular crime
to instead commit a greater offense. United States v.
Villegas, 655 F.3d 662, 676 (7th Cir. 2011); United States v.
White, 519 F.3d 342, 347 (7th Cir. 2008). That’s not what
Logan is saying. His argument, which concerns only
the § 846 conviction, presumes that he was predisposed
to participate in a drug conspiracy, although not one
involving such a large quantity of cocaine. One problem
with this reasoning is that quantity is not an element of a
conspiracy to possess drugs for distribution, Edwards
v. United States, 523 U.S. 511, 513-14 (1998); United States
22 Nos. 09-1647 & 09-3454
v. Garcia, 580 F.3d 528, 535 (7th Cir. 2009); United States
v. Martinez, 518 F.3d 505, 509 (7th Cir. 2008), so there is no
legal footing for Logan’s claim that he wanted only to
commit a “lesser” crime but was pushed to participate
in one that was more serious. More importantly, how-
ever, Logan cites nothing in the record suggesting that
Agent Bayless or Ringswald pressed him, even slightly, to
become involved. What Logan says is that Bayless “of-
fered” him the chance to participate in a robbery of 80
to 100 kilograms,2 but what he does not say is that he
jumped at the opportunity. In fact, it was Logan who
later proposed that the foursome rush into the stash
house—guns blazing—and grab, not just the cocaine, but
whatever cash might be in the hands of the guards. As
is evident, the government did not expend any energy
coaxing Logan’s involvement.
III.
The judgment entered against each defendant
is A FFIRMED.
2
Logan was sentenced to a total of 25 years’ imprisonment:
20 years for the drug conspiracy plus 5 for the § 924(c)(1)
offense. Five years was the minimum penalty on the gun count,
which by statute was required to run consecutively to the
conspiracy sentence. 18 U.S.C. § 924(c)(1)(A)(i). And since
Logan already had a felony drug conviction, any amount of
cocaine equaling 5 or more kilograms would have mandated
the 20-year term he received. 21 U.S.C. § 841(b)(1)(A)(ii).
Nos. 09-1647 & 09-3454 23
E ASTERBROOK, Chief Judge, concurring. I agree with the
majority that the judgment must be affirmed, but I do
not think it necessary or appropriate to discuss the con-
frontation clause of the sixth amendment. The evidence
to which Walker and Logan objected is hearsay: out-of-
court statements offered to establish the truth of the
asserted propositions. It should have been excluded
under Fed. R. Evid. 802, though the district court’s error
was harmless. Yet in this court defendants do not stand
on their rights under the Rules of Evidence. They
present only a constitutional argument.
“ ‘If there is one doctrine more deeply rooted than
any other in the process of constitutional adjudication,
it is that we ought not to pass on questions of constitu-
tionality . . . unless such adjudication is unavoidable.’
Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105
(1944). Before deciding the constitutional question, it
was incumbent on [the district and appellate] courts
to consider whether the statutory grounds might be
dispositive.” New York City Transit Authority v. Beazer, 440
U.S. 568, 582 (1979). A statutory ground of decision, Rule
802, is available here, and it is dispositive—against defen-
dants, because it has been forfeited. Litigants cannot foist
constitutional adjudication on a court by forfeiting a
winning statutory argument. If my colleagues think
that enforcing the forfeiture doctrine would be unjust
under the circumstances, then they should relieve de-
fendants of their forfeiture (which this court can do;
defendants did not waive the hearsay objection) rather
than use the forfeiture as the fulcrum for deciding a
constitutional issue unnecessarily.
24 Nos. 09-1647 & 09-3454
Rule 802 is significant for a second reason. It means
that there cannot be a substantive problem under the
confrontation clause. The Constitution says that every
defendant has a right to be confronted by the witnesses
against him, but not that he has a right to ignore the
rules that implement this entitlement. In federal court,
Rule 802 is the principal means by which confrontation
is achieved. The sixth amendment does not authorize
defendants to disregard the rules established for their
protection and then insist that their rights have been
violated.
There is a genuine constitutional issue only if the rules
allow particular evidence to be admitted, and a litigant
contends that these rules violate the Constitution. See, e.g.,
Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006); see
also Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir.
2011) (collecting authority). In cases such as Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009), a state court
received evidence that was admissible under the state’s
rules, and the aggrieved litigant maintained that the
rule violated the confrontation clause. Walker and Logan
do not make such an argument; they do not contend
that any of the Federal Rules of Evidence is deficient.
Nor could they; the Rules offer more protection than
the Constitution does.
Ringswald, the declarant, testified in Logan’s trial
(though not Walker’s). “[W]hen the declarant appears
for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimo-
nial statements. See California v. Green, 399 U. S. 149, 162
Nos. 09-1647 & 09-3454 25
(1970).” Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004).
So Logan does not have a serious claim under the sixth
amendment—but he does have a good argument under
Rule 802, which, unlike the confrontation clause, does
not drop out of the picture just because the declarant
testifies. None of the exceptions in Rules 803 or 807,
which apply whether or not the declarant is available as
a witness, covers the hearsay introduced at Logan’s
trial, and none of the subsections to Rule 801 puts the
statements in question outside the scope of the hearsay
rule.
Because defendants have not contended in this court
that the admission of the evidence violates Rule 802,
and do not argue that the Federal Rules of Evidence
violate the confrontation clause, we should affirm the
judgment without ado.
3-9-12