                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2428

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

R ONNIE L AUDERDALE,
                                         Defendant-Appellant.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
       No. 3:07-cr-30052-GPM-1—G. Patrick Murphy, Judge.



         A RGUED JUNE 1, 2009—D ECIDED JULY 6, 2009




  Before E ASTERBROOK , Chief Judge, and B AUER and
E VANS, Circuit Judges.
  B AUER, Circuit Judge. In December 2007, Ronnie Lauder-
dale was tried for conspiracy to distribute and possess
with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846;
and possession of a firearm by a previously convicted
felon in violation of 18 U.S.C. § 922(g)(1). After the jury
was unable to reach a unanimous verdict, a new trial
2                                              No. 08-2428

was scheduled to commence some six weeks later. In
the days leading up to the second trial, the government
disclosed new evidence to Lauderdale. Lauderdale
moved to exclude that evidence on the grounds that it
was provided to him at the eleventh hour; the district
court considered the motion, but delayed a ruling.
During the trial, with the judicial determination on the
admissibility of the evidence still pending, the govern-
ment elicited witness testimony concerning the evidence.
Lauderdale moved for a mistrial, alleging bad faith by
the government and resulting prejudice. The district
court denied that motion, but then ruled to exclude
much of the originally-challenged evidence.
  The trial proceeded to verdict and this time, the jury
returned a conviction. On appeal, Lauderdale argues
that the district court erred in denying his motion for a
mistrial. We affirm.


                   I. BACKGROUND
  After Lauderdale’s first trial resulted in a hung jury on
December 27, 2007, the case was reset for trial on
February 11, 2008. Between the two trials, the govern-
ment provided defense counsel with several hundred
pages of telephone records which it intended to intro-
duce as corroborative evidence of the alleged drug con-
spiracy. The records were produced in two installments;
the first approximately two weeks before trial, and the
second on the eve of trial. Lauderdale, through counsel,
requested a continuance based on the short setting and
the amount of newly disclosed evidence; he also filed
No. 08-2428                                                  3

a motion in limine, urging the court to exclude this evi-
dence from trial. The government advised the court that
it had produced all the phone records within 24 hours
of receiving them from the cellular telephone providers.
The court denied the continuance but admonished the
prosecutor, stating “I can’t imagine I would let you use
this at this late date. I’ll consider it.” The court continued,
“[i]t’s dangerous for a judge to say never but my inclina-
tion is I’m going to grant this motion, but it’s under
advisement.” The case proceeded to trial.
   The government’s case consisted of the testimony of
cooperating witnesses Jesse Lee Hale and John Ball; the
statements made at the time of arrest by Lauderdale,
Hale, and Ball; statements of two jailhouse informants;
and corroborating records. The evidence presented estab-
lished that Ball and Hale grew up together in Madison,
Illinois. Hale later moved to Turrell, Arkansas, where
he met Lauderdale. Lauderdale began moving large
quantities of cocaine and offered Hale a piece of the
action; Hale, in turn, recruited his friend Ball to join the
business. The three men began distributing cocaine to-
gether.
  Lauderdale obtained the cocaine from Mexican
suppliers; Ball distributed it on the local streets; and
Hale acted as the middleman, often delivering the drugs
to Ball in Illinois and staying behind to collect money.
After numerous successful transactions, something went
awry.
  In late September 2006, the men met in a hotel room
in Sikeston, Missouri where they counted out 20 kilograms
4                                              No. 08-2428

of cocaine and placed the drugs in a black duffel bag. Ball
and Hale then drove to Madison, while Lauderdale
returned to Arkansas. Ball arranged to sell 1.5 kilos of
the supply to two buyers, but the transaction didn’t go
down; instead, the two men robbed Ball at gunpoint
and made off with the cocaine. In a rather bold but
foolish move, Ball flagged down police officers and told
them that he had been robbed. The officers were able to
apprehend one of the men and brought him and Ball to
the police station. Ball then provided police with a
mind boggling complaint: what the thieves had stolen
was not money but cocaine and, apparently by way of
full disclosure, Ball said he had an additional 18.5 kilo-
grams of it, along with two guns, in his house.
  Ball took the officers to his house to show them the
goods but the cocaine was not there. Unbeknownst to
Ball, it had been moved by his uncle who, having received
word of his nephew’s arrest, took possession of the co-
caine. Hale and Lauderdale also got wind of Ball’s predica-
ment. When Lauderdale learned the news, he drove to
Madison immediately, obtained the duffle bag of cocaine,
and rented a hotel room in the area. Like a game of hot
potato, numerous accomplices briefly held, then passed
along, the cocaine over the course of several days.
  As to Ball, the jig was up. Ball spoke to Hale by tele-
phone and told him to come over with the cocaine.
When Hale arrived, police arrested him. Although Hale
did not have the cocaine, he helped police recover
the drugs. Lauderdale was arrested shortly thereafter;
when police searched his car, they found a gun.
No. 08-2428                                             5

   The government also presented testimony from
Frederick Goss and Marcel Fields, prison inmates who
were housed in the detention center with Lauderdale.
Goss testified that, during a game of chess, Lauderdale
told Goss that he had a business partner in Madison,
Illinois who was robbed of 1.5 kilograms of cocaine.
According to Goss, Lauderdale also told him that his
partner was testifying against him and that he wished
he could pay someone to kill him. According to Fields,
Lauderdale stated that he had been seen by Ball’s girl-
friend transporting cocaine, and that Lauderdale
wanted her dead. Lauderdale enlisted Fields to provide
someone who could accomplish this and agreed to pay
Fields $5,000 to do so.
  On the final day of trial, Drug Enforcement Administra-
tion (DEA) officer Brian Lammers testified that he and
another DEA officer interviewed Lauderdale at the Madi-
son, Illinois police department following Lauderdale’s
arrest. Lauderdale was made aware that other suspects
were cooperating and that, based on the cocaine which
had been seized, he was facing a possible sentence of life
imprisonment. Lauderdale then related an account of
his involvement in the drug conspiracy that was con-
sistent with that told by Hale and Ball. According to
Lammers, Lauderdale stated that he received the black
duffel bag containing the 20 kilograms of cocaine via a
courier from his Mexican supplier. At the hotel room
in Sikeston, Missouri, Lauderdale turned the cocaine
over to Hale and Ball, who were to transport it to
Madison, Illinois. However, when Lauderdale received
a call later that night from Hale informing him that “a
6                                               No. 08-2428

problem” had arisen, he also drove to Madison, where
he was arrested by police.
  Lammers further testified that Lauderdale’s cellular
phone records established that Lauderdale was in com-
munication with Ball on September 23, 2006, and with
Hale on September 22 through 24, 2006. Lauderdale also
called Ball on the morning of September 25, 2006, the
day the three men met in Sikeston, Missouri. After the
call to Ball’s phone, there were two calls between Lauder-
dale and Hale. Finally, there were a series of calls between
Lauderdale and Hale on the evening of September 25,
2006, the day Ball was arrested. Lammers then discussed
Ball’s cellular phone records.
  Lammers also identified a number of government
exhibits relating to the telephone records. At that point,
Lauderdale’s counsel requested a sidebar and objected
to the admission of the telephone records, contending
that they were the subject of his earlier limine motion. The
district court noted that it had not yet ruled on Lauder-
dale’s motion to exclude certain documents. The govern-
ment continued with its direct examination of Lammers.
  Thereafter, Lauderdale’s counsel moved for a mistrial,
arguing that the government had used exhibits con-
taining phone records that had been excluded by the
court pursuant to Lauderdale’s motion in limine. The
court stated that it would go back and consider the
earlier order on the motion in limine.
  Following a break, the court reconvened outside the
presence of the jury. It noted that Lauderdale’s motion in
limine had been taken under advisement, but not ruled
No. 08-2428                                                7

upon as Lauderdale had asserted. The court then elected
to admit the exhibits concerning records produced two
weeks before trial and bar the exhibits produced on the
eve of trial.
  At the trial’s conclusion, the jury found Lauderdale
guilty of both counts; the district court sentenced him to
a term of life imprisonment for the drug conspiracy
conviction and a concurrent term of 360 months’ imprison-
ment for the unlawful possession of a firearm conviction.


                    II. DISCUSSION
  On appeal, Lauderdale contends that the district court
erred in denying his motion for a mistrial. He argues that
a mistrial was necessary because, by adducing witness
testimony concerning the challenged records, the gov-
ernment deliberately disregarded the court’s de facto
ruling that the records would be excluded and, in doing
so, “snuck in” evidence that was critical to his convic-
tion. Moreover, he argues, the district court’s refusal
either to delay the trial’s start and allow sufficient time
for review of the late-arriving records or deliver on its
assurance that it would exclude the records in full, ren-
dered the trial fundamentally unfair.
  We review the district court’s denial of a motion for a
mistrial for an abuse of discretion. Unites States v. Bermea-
Boone, 563 F.3d 621, 625 (7th Cir. 2009). We use such a
highly deferential standard of review because, “the trial
judge is in the best position to determine the seriousness
of the incident in question, particularly as it relates to
8                                                No. 08-2428

what has transpired in the course of the trial.” United States
v. Danford, 435 F.3d 682, 686 (7th Cir. 2006) (internal
quotation marks and citation omitted). The essential
inquiry is whether Lauderdale was deprived of a fair
trial. Id.
  Lauderdale argues that the government’s actions
amounted to prosecutorial misconduct and compromised
the fairness of his trial. To evaluate such a claim, we
engage in a two-step analysis. United States v. White, 222
F.3d 363, 370 (7th Cir. 2000). We first examine the chal-
lenged remarks in isolation to determine whether they
were improper; if they were, we look at the remarks in
the context of the entire record to determine whether
they could have so prejudiced the jury that the
defendant cannot be said to have received a fair trial. Id.
  Here, neither the government’s direct examination of
Lammers concerning the telephone records nor its use
of exhibits containing those records violated an existing
court order. As the district court noted, Lauderdale’s pre-
trial motion in limine to exclude the records had been
taken under advisement, but never ruled upon.
  Nevertheless, Lauderdale contends that in light of the
district court’s indication that it would probably disallow
the use of such eleventh hour discovery, the govern-
ment’s decision to press forward on the subject matter
violated the spirit if not the letter of the law and was
improper all the same.
  We disagree. Lauderdale’s argument ignores a key
development that took place during the course of the
trial. The record suggests that the district court had
No. 08-2428                                                9

softened on its stance on disallowing use of the records.
In response to Lauderdale’s objection to Lammers’ iden-
tification of the government’s exhibits containing the
records, the prosecutor stated, “[t]he reason I even
began with [the disputed phone records] is because the
Court will recall, in chambers yesterday, you com-
mented that at this point [Lauderdale] had ample op-
portunity to review them, having received them last
week and [now] a week deep into trial.” Shortly thereafter,
when the district court excluded the majority of the
challenged records, it noted, “[n]ow look, this is not a
case where the Court is suggesting with regards to these
exhibits that the [government] did something improper.
It did not.”
  The district court’s comments throughout trial demon-
strate that, in its view, the admissibility of the telephone
records hinged on timing. The district court opted to
delay a decision on whether the government would
be allowed to use the telephone records until the point
at trial when it sought to do so. By withholding a
ruling until that time, the court could better reflect on how
limited or sufficient was defense counsel’s opportunity
to review and meet the evidence. It was not an
unqualified certainty that the district court would
exclude the records in their entirety. Understanding this,
the government proceeded with aggressive but fair
trial tactics.
 Having established that there was no prosecutorial
misconduct, we need not consider whether Lauderdale
was prejudiced by the prosecutor’s trial tactics. Still, we
10                                              No. 08-2428

return to the essential question of whether Lauderdale
received a fair trial. It is clear to us that he did.
  It may be true that, had the district court granted Lauder-
dale’s motion for a continuance, defense counsel would
have been afforded the opportunity to more thoroughly
review and prepare the telephone records for trial. It
may also be true that some of Lammers’ testimonial
statements, made in the presence of the jury, related to
evidence later ruled inadmissible. However, neither the
telephone records themselves nor the corresponding
testimony introduced new proof of Lauderdale’s
guilt. Far from being critical, these records were simply
cumulative.
  During their respective testimonies, Hale and Ball each
made numerous references to the other co-conspirators’
use of telephones to communicate with one another.
Moreover, independent of the excluded evidence, the
district court admitted several exhibits which were cor-
roborative of the telephone records. For example,
although the records relating to one of Lauderdale’s
mobile phones were excluded, the physical telephone
that corresponded to those records and the phone’s call
history log that demonstrated communication with
Hale were admitted into evidence without objection.
  It also bears noting that, without a single mention of
the phone records, the weight of the evidence presented
at trial was more than sufficient to establish Lauderdale’s
guilt beyond a reasonable doubt. The jury heard testi-
mony concerning Lauderdale’s post-arrest statement in
which he admitted to transporting the cocaine involved
No. 08-2428                                            11

in the conspiracy, along with the testimony of each of
Lauderdale’s co-conspirators, Hale and Ball, attesting
to Lauderdale’s instrumental role in the drug ring. Two
of Lauderdale’s prison acquaintances also testified that
Lauderdale expressed his desire and intention to have
incriminating witnesses killed. Lauderdale’s contention
that the district court abused its discretion in denying
a mistrial is without merit.
  For the reasons set forth above, we A FFIRM Lauderdale’s
conviction.




                          7-6-09
