This post examines a recent opinion from the U.S. Court of Appeals for the 7th Circuit: U.S.
v. Lewisbey, 2016 WL 7176646 (2016). The court begins by explaining that
David Lewisbey was a Chicago-based
gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and
bring them back to Illinois to sell. He came to the attention of law
enforcement when he bragged about his gunrunning exploits on Facebook. Federal agents set up a
sting, and Lewisbey was arrested and charged with multiple counts of unlawfully
transporting and dealing firearms. A jury convicted him on all counts.
Lewisbey now argues that his attorney
was operating under a conflict of interest in violation of his Sixth Amendment right to conflict-free counsel. He also challenges the admission of
incriminating text-message and Facebook evidence at trial. Finally, he
claims that the testimony of the government's cell-phone location expert did
not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579 (1993).
U.S. v. Lewisbey,
supra.
The Court of Appeals then outlined the events that led to
Lewisbey being charged with, tried on, and convicted of violating federal
firearms law:
David `Big Dave’ Lewisbey conducted a
thriving interstate gunrunning business from his home in Chicago. He purchased
guns at Indiana gun shows with a fake Indiana I.D. and then sold them in
Illinois. Federal authorities learned of these activities when Lewisbey boasted
about them on his Facebook page; an undercover operation was commenced. After
Lewisbey sold a total of 43 guns to a confidential informant in five separate
controlled purchases, law enforcement moved in and arrested him. He was charged
with one count of unlawful dealing in firearms without a license, 18 U.S.Code § 922(a)(1)(A); two counts of illegally transporting firearms across state
lines, 18 U.S. Code §§ 922(a)(3), 924(a)(1)(D); and two counts of traveling
across state lines with intent to engage in the unlicensed dealing of
firearms, 18 U.S. Code §924(n).
Lewisbey's defense at trial was that he
was a gun collector rather than a gunrunner. The evidence showed otherwise. The
prosecution's case included video recordings of Lewisbey's sales to the
confidential informant, text messages showing
that Lewisbey habitually sold guns to purchasers other than the confidential
informant, and Facebook photos
depicting Lewisbey with lots of guns and large sums of money. Michael Hall, a
business contact of Lewisbey's who occasionally acted as his go-between,
testified to the details of some transactions. Another witness testified
about selling guns to Lewisbey in a McDonald's parking lot in Indiana. Multiple
witnesses testified that they knew Lewisbey from Indiana gun shows and knew that
he used a fake Indiana I.D. to illegally purchase guns. Finally, FBI Special
Agent Joseph Raschke testified, based on his analysis of Lewisbey's phone
records, that calls were made from Lewisbey's phones at times and locations
consistent with the illegal gun transactions described by other witnesses. A
jury returned a verdict of guilty on
all counts, and the judge sentenced Lewisbey to 200 months in prison.
U.S. v. Lewisbey,
supra.
The Court of Appeals went on to note that
Lewisbey was represented in the district
court by Attorney Beau Brindley. At the time Brindley was himself facing a
criminal contempt proceeding in the Central District of Illinois. When
questioned by the judge about the potential conflict of interest, Lewisbey
expressly waived any conflict and consented to Brindley's continuation as his
counsel. Following the entry of judgment, and soon after this appeal was filed,
the government sought a limited remand to address a different conflict of
interest stemming from a new federal criminal investigation targeting Brindley.
We remanded the case so the district judge could determine whether a conflict
of interest existed and obtain a waiver if necessary. Brindley promptly
withdrew and another attorney took over Lewisbey's appeal. With a new attorney
in place, the judge canceled the conflict hearing and the appeal resumed.
U.S. v. Lewisbey,
supra.
The Court of Appeals then explains that Lewisbey
raises two arguments on appeal. First,
he contends that Brindley's troubles with law enforcement created an
unconstitutional conflict of interest in violation of his Sixth Amendment right
to conflict-free counsel. Second, he challenges the admission of his text
messages, Facebook posts, and the testimony of Special Agent Raschke, the
government's cell-phone location expert.
U.S. v. Lewisbey,
supra. The Court of Appeals analyzed these arguments in the order in which
Lewisbey raised them. U.S. v. Lewisbey,
supra.
It began its analysis of the Sixth Amendment issue by
explaining that
[b]ecause the Sixth Amendment protects
the right to counsel `whose undivided loyalties lie with the client,’ a defendant
whose trial attorney was `burdened by a conflict of interest’ may be entitled
to a new trial. United States v. Barnes, 909 F.2d 1059, 1065 (U.S.
Court of Appeals for the 7th Circuit 1990) (quotation marks omitted)
(citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). Conflicts of interest in this context usually arise in cases involving joint representation,
but a conflict may also arise `when a client's interest conflicts with that of
his attorney.’ United States v. Ellison, 798 F.2d 1102, 1106–07 (U.S.
Court of Appeals for the 7th Circuit 1986).
Lewisbey argues that Brindley's
interests conflicted with his own because Brindley was the subject of not one
but two criminal investigations, giving him an incentive to curry favor with
the government. To establish a violation of the Sixth Amendment right to conflict-free
counsel, the defendant `must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance.’ Cuyler, 446 U.S. at
348, 100 S.Ct. 1708. The mere possibility of a conflict is `insufficient to
impugn a criminal conviction.’ Id. at 350, 100 S.Ct. 1708.
Because Lewisbey affirmatively waived
any conflict arising from Brindley's contempt proceeding, see United
States v. Lowry, 971 F.2d 55, 61 (U.S. Court of Appeals for the 7th Circuit
1992), his Sixth Amendment claim can only relate to the second criminal
investigation against Brindley. But that investigation came to light after Lewisbey
was convicted and sentenced and his case had already moved to this court. When
Brindley learned that he was the subject of this second investigation, he
immediately withdrew; a new, conflict-free attorney thereafter assumed
responsibility for the appeal. Brindley's withdrawal cured the potential
conflict, removing any possible Sixth Amendment concern.
U.S. v. Lewisbey,
supra.
The Court of Appeals then took up Lewisbey’s second
argument, i.e., that his text messages and Facebook posts were improperly
admitted into evidence at his trial. U.S.
v. Lewisbey, supra. The Court of Appeals began its analysis of this
argument by explaining that
[o]ver Lewisbey's objection the judge
allowed the government to introduce certain inculpatory text messages from Lewisbey's
phones and posts from his Facebook page. We review evidentiary rulings
deferentially, for abuse of discretion only. United States v. Schmitt,
770 F.3d 524, 532 (7th Cir. 2014), cert. denied, ––– U.S.
––––, 135 S.Ct. 1537, 191 L.Ed.2d 565 (2015). `[W]e will defer to the district
court unless no reasonable person could adopt its view. Even then, reversal
only follows if admission of the evidence affected the defendant's substantial
rights.’ United States v. Schmitt, supra
(citation and quotation marks omitted).
Lewisbey argues that the Facebook posts
and the text messages taken from two phones—a Samsung and an iPhone—should have
been excluded on both hearsay and authentication grounds. See FED.
R. EVID. 801, 901. He also argues that the prejudicial impact of this
evidence substantially outweighs its limited probative value and thus the
evidence should have been excluded under Rule 403 of the Federal Rules of Evidence.
U.S. v. Lewisbey,
supra.
The Court of Appeals analyzed each of Lewisbey’s arguments
in the order set out above, beginning with the hearsay issue:
The hearsay objection is a nonstarter.
The text messages Lewisbey sent are his own statements and as
such are excluded from the definition of hearsay by Rule 801(d)(2)(A). The
messages he received were admitted not for the truth of the
matter asserted but instead to provide context for Lewisbey's own
messages See FED. R. EVID. 801(c)(2); United
States v. Robinzine, 80 F.3d 246, 252 (7th Cir. 1996) (Statements
offered not to prove `the truth of the matter asserted’ but for another
legitimate purpose do `not even fit the definition of hearsay’). And Lewisbey
admitted that the Facebook posts were his, so like his `sent’ text messages,
the posts qualify as nonhearsay admissions under Rule 801(d)(2).
U.S. v. Lewisbey,
supra (emphasis in the original).
The Court of Appeals then took up the next issue, i.e., the
authentication of the text messages. U.S.
v. Lewisbey, supra. It began its analysis of the issue by explaining that
[t]he authentication objection fares no
better. To authenticate the text messages, the government needed only to
“produce evidence sufficient to support a finding” that the messages were
actually sent and received by Lewisbey. FED. R. EVID. 901(a). The government
clearly did so. The iPhone was confiscated from Lewisbey at the time of his
arrest, and in a recorded phone call from the jail, he told his mother that the
police took his phone. The Samsung device was recovered from his bedroom at his
parents' home, a room that both parents identified as belonging exclusively to
him. The `Properties’ section of the iPhone described the phone as `Big
Dave's,’ and the contacts directory included information for Lewisbey's mother
listed under the heading `Mom,’ and also the name and number of his former
attorney. Both phones listed contact information for the Texas Home Depot
stores where Lewisbey used to work. And the confidential informant arranged gun
sales with Lewisbey on the Samsung phone. That's more than enough to establish
that the two phones were indeed Lewisbey's. See FED. R.
EVID. 901(b)(4) (`The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with
all the circumstances,” can establish that “the item is what the proponent
claims it is.’).
Lewisbey's admission that the Facebook
posts were his is enough for authentication, but if more were needed, the
Facebook page lists Lewisbey's nickname, his date of birth, and his place of
residence (Houston) where he lived prior to Illinois. The email addresses
associated with the Facebook account correspond to both the email linked with
Lewisbey's iPhone and his former email address at the University of
Kansas. The Facebook page contains more than 100 photos of Lewisbey—including
a profile picture—and many of the Facebook photos match photos also found on
Lewisbey's iPhone. The Facebook application on Lewisbey's iPhone was linked to
this Facebook account. And messages on the account discuss Lewisbey's trips to
gun shows in Fort Wayne and Indianapolis on dates when gun shows actually
occurred at these locations.
U.S. v. Lewisbey,
supra.
This section of the Court of Appeals’ opinion goes on to
explain that
[f]inally, Lewisbey challenges the
judge's decision to allow Special Agent Raschke to testify about Lewisbey's
phone records. Agent Raschke explained that Lewisbey's phone records showed
calls made at places and times that corresponded to the testimony of the other
prosecution witnesses. Lewisbey claims that this testimony did not meet the
requirements of expert testimony under Rule 702 of the Federal Rules of
Evidence, which requires that
(a) the expert's scientific, technical,
or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on
sufficient facts or data;
(c) the testimony is the product of
reliable principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the case.
U.S. v. Lewisbey,
supra.
The court then notes that,
[u]nder the familiar framework
established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) the district
judge consults a nonexhaustive list of factors to determine whether the
requirements of Rule 702 are met; these include: (1) whether the expert's
technique or theory is testable or has been tested; (2) whether the technique
or theory has been subject to peer review and publication; (3) the known or
potential rate of error in applying the technique or theory; (4) whether
standards and controls exist and were maintained; and (5) whether the technique
or theory is generally accepted in the scientific community. 509 U.S. at
593–94, 113 S.Ct. 2786. The court's gatekeeping function applies to all expert
testimony and not just scientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–49 (1999). On appeal we ask first whether the
judge applied the proper framework. C.W. ex rel. Wood v. Textron, Inc.,
807 F.3d 827, 835 (7th Cir. 2015). If the judge did so, then we review the
decision to admit the expert's testimony for abuse of discretion. Id.
U.S. v. Lewisbey,
supra.
The 7th Circuit went on to point out that the
record reflects that the judge
conducted a thorough Daubert analysis of Agent Raschke's
proposed testimony and soundly exercised his discretion to admit it. Using call
records and cell towers to determine the general location of a phone at
specific times is a well-accepted, reliable methodology. See, e.g.,
Rick Ayers, Sam Brothers & Wayne Jansen, Nat'l Inst. of Standards &
Tech., Guidelines on Mobile Device Forensics, § 6.3 at 54 (2014),
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-101r1.pdf (`Call
detail records can also be used with cell site tower information obtained from
the service provider to translate cell identifiers into geographic locations
for the cells involved and identify the general locale from which calls were
placed.’); United States v. Jones, 918 F.Supp.2d 1, 5 (D.D.C.
2013) (`[T]he use of cell phone location records to determine the general
location of a cell phone has been widely accepted by numerous federal courts.’).
With 350 hours of training in the systems used by the relevant network service
providers, Agent Raschke had ample expertise in this methodology. And the judge
also appropriately recognized the limits of this technique by barring the agent
from couching his testimony in terms that would suggest that he could pinpoint
the exact location of Lewisbey's phones. We find no abuse of discretion.
U.S. v. Lewisbey,
supra.
The court ended the opinion with these comments:
[w]e note in closing that no
evidentiary error requires reversal unless it affected the defendant's
substantial rights; this in turn requires that `the average juror would have
found the prosecution's case significantly less persuasive absent the erroneous
evidentiary ruling.’ United States v. Trudeau, 812 F.3d 578, 590
(7th Cir. 2016). The record contains prodigious evidence of Lewisbey's guilt.
We're confident that none of the claimed evidentiary errors—if indeed they were
errors—had a significant effect on the jury's verdict.
U.S. v. Lewisbey,
supra.
For all these reasons, the Court of Appeals affirmed
Lewisbey’s conviction. U.S. v. Lewisbey,
supra. You can, if you are interested, read the Press Release that reported
the sentence which was imposed on Lewisbey here.
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