In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3532

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT SCOTT,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CR-30043--Richard Mills, Judge.

Argued December 6, 2001--Decided March 26, 2002



  Before CUDAHY, EASTERBROOK, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. Robert Scott,
along with assorted others, was indicted
for conspiracy to possess marijuana and
cocaine with intent to distribute. At
Scott’s first trial, in 1999, the jury
failed to reach a verdict, and the judge
declared a mistrial. A second trial did
not have a happy ending for Mr. Scott--he
was convicted. That trial lasted 2 weeks
and saw a cavalcade of witnesses,
testimony, and physical evidence. As much
as we’d like to inscribe pages and pages
of the Federal Reports with details of
the drug transactions presented to the
jury, we’re not going to. We’ll shoot for
six paragraphs, stating the evidence in
the light most favorable to the
government.

  From late 1991 to the fall of 1993,
Billy Scott (Robert Scott’s brother),
Billy’s girlfriend, Molly Rahar, and (for
a couple of months) Tim Burnett drove
from Taylorville, Illinois, to Chicago to
purchase marijuana and cocaine from
Charles Kelsay. From mid-1993 until July
2, 1994, Shawn Jones and Burnett drove
from Taylorville to Chicago to purchase
marijuana and cocaine from Kelsay.
Although Robert Scott did not go on these
road trips, the government suspected he
was one of their masterminds.
  With regard to the first portion of the
conspiracy, Rahar testified that prior to
going to Chicago to purchase drugs from
Kelsay, Billy Scott and she would meet
with Scott, who would give his brother
thousands of dollars and discuss what
drugs to get./1 After returning to the
Taylorville area from Chicago they would
drop off the drugs at a lake lot rented
by Scott. Burnett, whom Billy Scott
eventually hired as his driver, testified
that if they brought the drugs to either
his own house or Billy Scott’s, Scott
would come by, pick up his marijuana and
cocaine, and leave, taking "[j]ust about
all of it." Unfortunately for Scott, as
both Rahar and Burnett testified, Billy
Scott was a heavy drug user and became an
unreliable courier.

  Enter Shawn Jones. Jones, a neighbor and
friend of Scott’s, testified that he had
been going to Chicago with various people
to obtain drugs from Kelsay. Starting in
late 1992 Jones pooled his money with Ron
Cooper, who previously had been obtaining
drugs from both Jones and Billy Scott.
Jones would travel to Chicago, sometimes
sharing a motel room with Billy Scott,
Rahar, and Burnett. In mid-1993 Jones
hired Burnett as his driver.

  After his falling out with his little
brother, Scott turned to Jones. Jones
refused to testify at trial so the
government introduced grand jury
testimony that Jones had given against
Scott in December of 1995--more on that
in a moment. Jones confirmed that Scott
was Billy Scott’s "money man" during
Billy Scott’s trips to Chicago and that,
after the Scott family feud, Jones agreed
to get drugs for Scott from Kelsay. Scott
gave him between $5,000 and $10,000 for
these purchases; Jones offered the
precise amounts that Scott gave him on
the last few trips prior to Jones’
arrest. Burnett witnessed money exchanges
between Jones and Scott. Jones said that
Scott sometimes paid for the hotel room
in Chicago, and phone records,
corresponding in time to stays in Chicago
motels, showed calls to the Scott
residence and Scott’s tavern. Burnett and
Karen Jones (Shawn Jones’ wife)
remembered Shawn calling Scott to let him
know if there were problems or if they
were running late. In Chicago, Kelsay
often fronted marijuana and cocaine to
Jones and Burnett. There was testimony
that Scott would pick up marijuana and
cocaine after Jones and Burnett returned
from Chicago; some of the drugs went to
Cooper. The Jones-Burnett trips to
Chicago ended on July 2, 1994, shortly
before Scott’s Fourth of July lake lot
party, when Burnett and Jones were
arrested on their way back from Chicago
and found with large amounts of marijuana
and cocaine.

  The investigation into the drug
conspiracy did not immediately lead to
Robert Scott, who was not indicted until
June of 1999. Scott was detained at
Sangamon County jail before being
released. He violated the terms of his
release, however, and returned to
Sangamon in September 1999. During this
second visit, Scott made friends with
Billy Chance (remember that name), who
was awaiting sentencing after pleading
guilty to armed bank robbery./2 Chance
testified that Scott told him that Billy
Scott and Rahar had been going to Chicago
three or four times a month and buying
drugs for him from Kelsay. Scott said
that he had Jones take over the drug runs
after Billy started ripping him off. He
would give Jones $10,000-$15,000 for the
drugs, which Jones would deliver to him.
Scott also showed Chance a list of phone
calls the government was going to use
against him. He told Chance the calls
were "about the drug transactions that
Jones had made."

  Lest anyone wonder how Scott could have
stored all the drugs he was obtaining,
the government also presented evidence on
his distribution practices. According to
Rahar, during the first part of the
conspiracy Scott was fronting drugs to
his brother to sell. Angela Sparling
testified that she twice purchased
cocaine from Scott. Steve Harness
testified to purchasing (or being
fronted) large amounts of marijuana from
Scott from spring to fall of 1993. With
regard to the second part of the
conspiracy, Jones testified that he saw
Bob Oller give money to Scott for drugs a
few times. Scott also had Jones pick up
an ounce of cocaine that went to Oller.
Jones also said that he stopped at Alan
Williams’ car dealership in Decatur,
Illinois, a couple of times to pick up
money that Williams owed to Scott for
drugs. Louis Ferratier, who rented a lake
lot near Scott’s, testified to buying
cocaine from Scott four times in June of
1994. Last, Chance testified that Scott
told him that he had sold drugs at his
lake lot and during pool tournaments.

  On appeal, Scott raises five points,
four of which will not make it out of
this paragraph. First, he argues there
was insufficient evidence to convict him,
a contention answered by the difficulty
of winning a sufficiency challenge and
the evidence (which we have briefly
summarized) presented at trial. Although
the evidence was hotly contested--there
was direct contrary testimony and no
shortage of prior convictions,
cooperation agreements, and drug use with
which to impugn the credibility of
government witnesses--we defer to the
jury’s credibility determinations.
Second, Scott argues that the district
court erred by failing to give buyer-
seller and multiple-conspiracy
instructions. Scott did not request such
instructions and there was no plain error
in not giving them. Third, Scott argues,
citing the oft-cited decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), that
the district judge erred by failing to
instruct the jury that it needed to find
both the types and amounts of drugs
involved in the conspiracy. Again, Scott
did not request such an instruction and,
even though the government concedes
error, we agree, given the evidence in
the record, that the error was harmless.
Fourth, Scott claims he received
ineffective assistance of counsel.
Because Scott has new counsel on appeal
and insists on going ahead, we will
consider his ineffective assistance
claim, even though, in the absence of an
evidentiary hearing, his claim is all but
doomed. United States v. Godwin, 202 F.3d
969, 973 (7th Cir. 2000). As we see it,
nothing in the record rebuts the
presumption that counsel’s performance
was reasonable, so we reject the
ineffectiveness claim.

  But Scott has thrown one dart that is at
least heading for the board. He
challenges the admission of Shawn Jones’
December 1995 grand jury testimony. Jones
provided the testimony after he was
convicted but before he was sentenced on
charges stemming from his 1994 arrest.
After giving the testimony, Jones refused
to testify during a second appearance
before the grand jury. He also refused to
testify at both of Scott’s trials. The
district judge found him "unavailable"
after his refusal to testify at the
second trial. Upon the government’s
motion, the judge admitted the grand jury
testimony after holding an evidentiary
hearing.

  There can be little doubt that Jones’
testimony was important. Jones not only
confirmed that Scott was Billy Scott’s
"money man" but also testified that Jones
accepted large amounts of money from
Scott for the purpose of buying drugs
from Kelsay. Morever, he testified that
Scott sometimes paid for his hotel room
in Chicago and that he not only delivered
the drugs to Scott but also delivered
drugs to and picked up money from Scott’s
customers. This was powerful testimony in
a conspiracy case. We also note that
Scott’s first jury did not hear Jones’
testimony.

  There are two independent hurdles to
admitting out-of-court statements in
federal courts: the Sixth Amendment’s
Confrontation Clause and the Federal
Rules of Evidence. It is, of course,
well-established that a defendant
forfeits his Confrontation Clause rights
by wrongfully procuring the
unavailability of a witness. United
States v. Emery, 186 F.3d 921, 926 (8th
Cir. 1999). The doctrine was codified
with regard to hearsay in 1997 with the
adoption of Federal Rule of Evidence
804(b)(6). United States v. Ochoa, 229
F.3d 631, 639 (7th Cir. 2000). We need
not worry about any potential differences
between the substantive forfeiture
standards or standards of review under
these two provisions because Scott has
not raised a Confrontation Clause issue.
He styles his challenge under Rule
804(b)(6). Accordingly, we will review
the district court’s determination under
Rule 804(b)(6) for clear error. Cf.
United States v. Irorere, 228 F.3d 816,
824 n.1 (7th Cir. 2000) (applying clear
error standard to predicate determination
of whether defendant was a member of a
conspiracy for purposes of admitting
coconspirator statements under Fed. R.
Evid. 801(d)(2)(E)).

  Federal Rule of Evidence 804(b)(6)
provides that if the declarant is
unavailable, a statement is not excluded
as hearsay if it is "offered against a
party that has engaged or acquiesced in
wrongdoing that was intended to, and did,
procure the unavailability of the
declarant as a witness." To admit a
statement against a defendant under the
rule, therefore, the government must show
(1) that the defendant engaged or
acquiesced in wrongdoing, (2) that the
wrongdoing was intended to procure the
declarant’s unavailability, and (3) that
the wrongdoing did procure the
unavailability. The district judge
required the government to establish
these elements by a preponderance of the
evidence. Although we have not directly
addressed the level of burden to be
carried by the government under Rule
804(b)(6), Ochoa, 229 F.3d at 639 n.2, we
join the other circuits which have held
that the preponderance-of-the-evidence
level is correct. See United States v.
Houlihan, 92 F.3d 1271, 1280 (1st Cir.
1996) (and cases cited therein).
  At the evidentiary hearing, the
government offered different pieces of
evidence regarding Scott’s interactions
with Jones. First, it submitted
transcripts of phone conversations
between Scott and Jones occurring in 1998
while Jones was incarcerated and Scott
was the target of a grand jury
investigation. It also offered prison
records showing that Scott and his wife
visited Jones in prison in February 1998.
Second, it offered testimony that Scott
and his wife gave Jones $200 and gave his
son a toy laptop computer for Christmas
in 1998. Third, it offered the testimony
of Mr. Chance, who we recall was in the
same cellblock with Jones at Sangamon in
the spring of 1999; Chance and Scott were
on the same cellblock in the fall of 1999
and shared a cell for a few days. Chance
testified to their interactions.

  As the government seems to concede, only
Chance’s testimony has much force. The
transcripts of the Jones-Scott phone
conversations are fairly mundane and only
touch on subjects that could be construed
(and they must be construed broadly) as
coercive, influential, or even
persuasive. In fact, Jones placed the
calls to Scott. Moreover, although giving
something of value to a potential witness
could constitute wrongdoing, there is no
indication that Scott (or his wife) gave
Jones money or gave the son a gift with
the intent of procuring his
unavailability. The record establishes
that the Joneses and Scotts were
longstanding friends.

  But Chance’s testimony reveals that
Scott did not think that friendship alone
would carry the day. According to Chance,
Scott and Jones communicated at Sangamon
both in June of 1999, shortly after
Scott’s indictment, and in the fall of
1999, in the months preceding Scott’s
first trial. June is useful background.
After Scott’s arrival, Jones seemed
"nervous" and "frightened." Jones
identified Scott as the person the
government wanted him to testify against
and told Chance that "he had a lot to
lose and he had to protect himself."
Chance observed Jones and Scott
communicate through their adjacent cell
blocks, out of sight of security cameras,
regularly while Scott was there.

  In the fall, Scott told Chance that
Jones had damaging information. Scott
said that "if [Jones] knew what was good
for him, he’d keep his mouth shut" and
that Jones "better not testify if he knew
what was good for him." Scott also told
Chance that he learned from his lawyer
that the government had approached Jones
and told him that it would drop his
contempt charges and further reduce his
sentence if he testified. Chance had seen
Jones in the Sangamon law library, and
Scott had Chance tell Jones what his
lawyer had told him and ask him whether
he was going to testify. When Chance
brought up the subject, Jones "looked
real nervous and scared." Nonetheless,
Jones told Chance (who told Scott) that
he was not going to testify. But hearing
it from Chance was not good enough for
Scott, who asked Chance how to obtain
permission to use the law library. He
then ventured to the library to "make
sure [Jones] was not going to testify
again." He did so even though he had told
Chance on a few occasions that he was
worried the government would use his
communication with Jones against him.
Chance testified that they talked in a
"low tone of voice."/3 Afterwards,
Scott was "happy" and "seemed relieved
that Jones wasn’t going to testify."

  Rule 804(b)(6) requires, first, that
Scott engage in "wrongdoing." That word
is not defined in the text of Rule
804(b)(6), although the advisory
committee’s notes point out that
"wrongdoing" need not consist of a
criminal act. One thing seems clear:
causing a person not to testify at trial
cannot be considered the "wrongdoing"
itself, otherwise the word would be
redundant. So we must focus on the
actions procuring the unavailability.
Scott argues his actions were not
sufficiently evil because they were not
akin to murder, physical assault, or
bribery. Although such malevolent acts
are clearly sufficient to constitute
"wrongdoing," they are not necessary. See
30B Michael R. Graham, Federal Practice &
Procedure sec. 7078 (Interim ed. 2000)
("Rule 804(b)(6) is an attempt to respond
to the problem of witness intimidation
whereby the criminal defendant . . .
through one means or another, often a
simple telephone call, procures the
unavailability of the witness at trial .
. . ."). The notes make clear that the
rule applies to all parties, including
the government. Although, in the ugliest
criminal cases, murder and physical
assaults are all too possible on the
defendant’s side, it seems unlikely that
the rule was needed to curtail government
murder of potential witnesses. Rather, it
contemplates application against the use
of coercion, undue influence, or pressure
to silence testimony and impede the
truth-finding function of trials. We
think that applying pressure on a
potential witness not to testify,
including by threats of harm and
suggestions of future retribution, is
wrongdoing./4 Cf. Steele v. Taylor, 684
F.2d 1193, 1201 (6th Cir. 1982) (noting
that wrongful conduct includes the use of
force and threats, and "persuasion and
control" by a defendant).

  Scott does not challenge the facts as
related by Chance, so what we have is a
battle of inferences and, although it is
close, we do not believe that the
district judge erred by inferring that
Scott coerced Jones. First, Scott told
Chance what he intended to do in the
library; he wanted to "make sure [Jones]
was not going to testify again"--this
after threatening that Jones should "keep
his mouth shut" and "better not testify
if he knew what was good for him." The
district judge could reasonably infer
that Scott did exactly what he told
Chance he would do. Second, there is no
dispute that Scott had a golden
opportunity to coerce Jones. He had a 20-
minute conversation with Jones in
Sangamon’s law library where, likely not
out of respect for library policy, they
spoke in "low" tones. Third, Scott’s
reaction to the meeting was positive. He
seemed "happy" and "relieved" that Jones
would not testify, after previously
worrying about it. All of this took place
against a backdrop in which Jones was
"frightened" by Scott’s presence and
feared that he had "to protect himself."

  In considering this evidence, we are
also mindful that there is another
potential source of information about the
conversation between Scott and Jones:
Jones. But Jones gave no testimony at the
evidentiary hearing. It seems almost
certain that, in a case involving
coercion or threats, a witness who
refuses to testify at trial will not
testify to the actions procuring his or
her unavailability. It would not serve
the goal of Rule 804(b)(6) to hold that
circumstantial evidence cannot support a
finding of coercion. Were we to hold
otherwise, defendants would have a
perverse incentive to cover up wrongdoing
with still more wrongdoing, to the loss
of probative evidence at trial. We hold
that the district judge did not clearly
err by finding that Scott had engaged in
wrongdoing.

  Rule 804(b)(6) requires, second, that
Scott’s wrongdoing was intended to
procure Jones’ unavailability. On this
point the evidence is clear. Chance
testified that Scott threatened that
Jones "better not testify if he knew what
was good for him." Moreover, Scott wanted
access to the law library to "make sure"
that Jones would not testify. The
district judge properly found that
Scott’s wrongdoing was intended to
procure Jones’ unavailability.

  Third, the rule requires that Scott’s
wrongdoing procure Jones’ unavailability.
This is another close issue. Jones first
refused to testify in January 1999 when
he appeared again before Scott’s grand
jury. Thus, it may be difficult for the
government to show that Scott’s conduct
at Sangamon procured Jones’
unavailability since Jones had refused to
testify over 8 months earlier.

  But our task is to measure Jones’
refusals to testify at trial and, by that
point, Scott had been thrown from
thefrying pan into the fire. He was no
longer a target of an investigation but a
criminal defendant. The government had
upped the ante on Jones’ testimony and
Scott knew it. Scott told Chance that he
"couldn’t believe" the government was
going to call Jones to testify. He had
assumed the government was going to
present Jones’ grand jury testimony,
which Scott and Jones were trying to have
thrown out. Further, Scott thought that
the government was applying new leverage.
According to what he told Chance, he
believed the government was offering to
drop Jones’ contempt charges and further
reduce his sentence in exchange for
testimony. This prompted Scott to ask
Chance, despite his worries of government
surveillance, to find out whether Jones
was going to testify. Even after Jones
said he was not going to testify, Scott
was still worried, so worried that he
himself went to the law library to find
out if Jones was really going to testify.
Only at this point, after which coercion
was inferable, was Scott "happy" and
"relieved" that Jones would not testify.
For his part, Jones alluded to religious
and moral reasons for not testifying,
which he had not relied upon before.
Given his vacillating excuses, we think
the district judge did not clearly err in
concluding that Scott’s influence was the
real reason for Jones’ unavailability.

  Scott argues that, even if Jones’
testimony was admissible under Rule
804(b)(6), its probative value was
substantially outweighed by unfair
prejudice under Federal Rule of Evidence
403. Scott asserts that he was
incriminated by unreliable evidence. To
the extent this argument depends on the
right of cross-examination, the argument
is unavailing. The whole point of Rule
804(b)(6) is to admit evidence without
cross-examination because, by a
defendant’s wrongdoing, he forfeits his
right to challenge the receipt in
evidence of the statements. Moreover, the
hearsay statements here were sworn and
given before a grand jury. The unfair
prejudice to Scott of admitting these
statements was, as the district court
found, outweighed by its considerable
probative value in this case.

  The judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 Billy Scott had come to know Kelsay through
Norman Engebretsen, whom he met while working in
Chicago. Prior to the dates of the alleged con-
spiracy, Engebretsen had sold marijuana. He tes
tified that he obtained the marijuana from Billy
Scott and that, on different occasions, Billy
Scott made it known to him that his brother was
in charge of dispensing the drugs. Engebretsen
eventually connected the Scotts with a cocaine
source in Chicago--Kelsay.

/2 Chance must have been the friendly type. Chance
had met Jones in December 1998 at a correctional
facility and bumped into him again in March of
1999 when they were housed in the same cell block
at Sangamon. Scott was in the adjacent cell block
for a week or so in June (his initial detention).

/3 At trial, Chance added that the conversation
lasted 20 minutes.

/4 Nothing in our decision in Ochoa is to the
contrary. In that case, the government presented
evidence that one of the defendant’s former
tenants, a potential witness, had made at least
one telephone call from the defendant’s phone
while the government was trying to locate him.
The court held that "permitting a witness at
one’s upcoming trial to use a phone, without
more, is not a culpable act." 229 F.3d at 639.
Scott’s case involves threats and coercion.
