U.S. vs. Hurt

At Courtney D. Hurt’s trial for
possession with intent to distribute five grams or more
of crack cocaine, several police officers testified for the
government, both as to the facts and as expert witnesses.
The jury returned a verdict of guilty. Hurt’s sentencing
Guidelines ranged from 360 months to life imprison
ment. After finding that there were no factors that warranted
a deviation from this range, the court sentenced
Hurt to 360 months’ imprisonment. On appeal, Hurt
argues that the district court erred by allowing the
officers to testify without the appropriate procedural
safeguards that would have distinguished between
what was asserted as a fact witness and what was an
expert opinion. Hurt also argues that the district court
erroneously presumed that any sentence within the
Guidelines range was reasonable. Finding no error,
we affirm.

BACKGROUND
After a grand jury indicted Hurt with knowingly and
intentionally possessing with intent to distribute five
grams or more of crack cocaine, 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii), the government served notice that it
planned to use the investigating officers involved in
Hurt’s arrest as both fact and expert witnesses; Hurt
moved the district court for a voir dire hearing of the
officers to determine their expert qualifications. Hurt
also moved to exclude the investigating officers’ expert
testimony because, according to Hurt, the government
had failed to timely and adequately disclose the names
of the officers and summaries of their proposed testimony,
in violation of Federal Rule of Criminal Procedure
16(a)(1)(G). The district court denied the motions to
exclude the expert testimony; it ruled that voir dire
was not needed since the officers were going to testify
to routine drug matters and that the government had
provided sufficient notice as to the intended expert testimony.

At trial, the government proved its case through the
testimony of various investigating officers, which
included Illinois State Police Trooper Stephen Brian
Lawrence, and Metropolis Officer Ricky Griffey, who was
assigned to the Southern Illinois Task Force. Both Lawrence
and Griffey testified as to the circumstances of
Hurt’s arrest and, based on their experiences, to what were
standard drug dealer quantities and packaging. Hurt
objected to the dual nature of Griffey’s testimony; he
argued that the jury would not be able to separate the
two kinds of testimony and, because of the seamless
interchanging between fact and expert testimony, his
case would be prejudiced. The government did not “mind
if it’s stricken,” so the district court struck Griffey’s
testimony and instructed the jury to disregard it.

The jury returned a guilty verdict against Hurt.

At sentencing, pursuant to the 2007 Federal Sentencing
Guidelines Manual, Hurt’s initial offense level was calculated
at 26. The district court was satisfied that Hurt
qualified as a career offender under U.S.S.G. § 4B1.1;
it found that Hurt’s two or more felony convictions
for the distribution of controlled substances qualified as
predicate offenses and applied the career offender enhancement,
resulting in an increased offense level of 37.
Hurt’s sentencing Guidelines ranged from 360 months
to life imprisonment. The district court sentenced Hurt to
360 months’ imprisonment and this timely appeal followed.

DISCUSSION
Hurt argues that the district court improperly allowed
the officers to testify as both fact and expert witnesses
without providing sufficient cautionary instructions
which would have distinguished their roles for the jury.
Hurt also contends that the district court erroneously
gave the sentencing Guidelines undue weight.

As to the dual role inquiry, Hurt argues that the questions
posed by the government to the officers failed to
properly distinguish between their roles as experts and
fact witnesses, which, ultimately, prejudiced the jury in
their deliberations. See United States v. Upton, 512 F.3d
394, 401 (7th Cir. 2008) (discussing the concerns when a
jury may unduly credit the witness’s fact testimony
given his status as an expert).

We review the district court’s decision to allow the
officers to testify as experts for an abuse of discretion.
Upton, 512 F.3d at 401. Upton allows a witness to testify
in both roles if followed by the appropriate procedural
safeguards. Id. at 401-02. We need not consider those
safeguards because Hurt objected rather vaguely to
Griffey’s dual testimony and received a favorable ruling
that struck the testimony. Because there was no
objection to the other officers testifying in both
capacities, the issue of their testimony was waived.

Hurt also argues that the government violated Rule 16
by failing to timely and sufficiently disclose the intended
expert testimony of the officers. See Fed. R. Crim. P.
16(a)(1)(G). Hurt argues that the district court abused
its discretion when it accepted the Rule 16 violation when
it denied his motion to exclude the officers’ expert testimony
since, at a minimum, the government did not
disclose the names of the experts, depriving him a fair
opportunity to prepare their cross-examination.
Assuming that the district court abused its discretion on
this issue of Rule 16 compliance, we then inquire as to
whether that error was harmless. See United States v.
Britton, 289 F.3d 976, 983 (7th Cir. 2002). The discovery
correspondence delivered to Hurt, which included the
purported insufficient summaries, summarized what
the officers intended to testify about as experts based on
their training and experience—namely, drug packaging
and dealer quantities and the accompanying intent to
distribute, or as the district court put it, “ordinary run-ofthe-
mill testimony about drug transactions, drug business,
etc.” Further, although the summary did not include
the names of the investigating officers, Hurt was
provided with the officers’ investigative reports, which
included the officers’ names. Hurt knew the names of
the expert officers and the subject of their intended testimony
before they testified; so any error was harmless
beyond a reasonable doubt.

Turning now to the heart of his appeal, Hurt argues that
the district court erred by treating the Guidelines as
applicable and presumptively reasonable; in other
words, that the court credited the Guidelines with undue
weight and sentenced him to a Guidelines sentence.
“Whether the district court followed the proper procedures
after United States v. Booker, 543 U.S. 220 (2005), in
imposing [a] sentence is a question of law we review
de novo.” United States v. Smith, 562 F.3d 866, 872 (7th
Cir. 2009) (citation omitted). In this review, we first look
for procedural errors such as “treating the Guidelines as
mandatory” or “failing to consider the § 3553(a) factors.”
United States v. Clanton, 538 F.3d 652, 659 (7th Cir. 2008)
(quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)).
After that, “[a]ssuming the district court’s sentencing
decision is procedurally sound,” we look at the substantive
reasonableness of the sentence, where, “[r]egardless
of whether the sentence imposed is inside or outside
the Guidelines range,” we review the district court’s
sentencing decision for reasonableness, using an abuse
of discretion standard. Id.

Hurt argues that the district court committed procedural
error by presuming reasonable a Guidelines
sentence and failing to meaningfully consider the other
statutory sentencing factors, 18 U.S.C. § 3553(a), that
would support a non-Guidelines sentence. Hurt points to
the district court’s own language: “So the analysis I have
to go through is, well, is this a guideline case?” The
district court continued, “[w]hat is it about Mr. Hurt that
suggests that he really doesn’t deserve a guideline sentence,
the kind of sentence experts in Washington have
determined is appropriate for someone who is a career
offender, someone who keeps committing crime after
crime?” These statements, according to Hurt, established
that a legal presumption was applied in favor of the
Guidelines—that the district court would have automatically
imposed a Guidelines sentence absent some compelling
reason. And with this erroneous view of the
Guidelines, Hurt suggests, the district court simply
stopped at the Guidelines without considering the mandatory
§ 3553(a) factors.

We disagree; the district court did not commit procedural
error by giving undue weight to the Guidelines.
What it did do was follow the instructions of the Court
in Gall. There, the Court stated that “the Guidelines
should be the starting point and the initial benchmark.”
Gall, 128 S. Ct. at 596; see Kimbrough v. United States, 128
S. Ct. 558, 574 (2007). The next step is to hear arguments
from the parties as to whether the Guidelines
should not apply either because the case falls outside the
“heartland” of the Guidelines, or because a Guidelines
sentence fails to reflect the § 3553(a) factors, or because,
regardless, a different sentence is warranted. See Gall,
128 S. Ct. at 596; see also Rita v. United States, 551 U.S.
338, 351 (2007); see also Smith, 562 F.3d at 872. In
making this determination, a district court is instructed
to make “an individualized assessment based on the
facts presented,” but after Booker, it “may not presume
that the Guidelines range is reasonable.” Gall, 128 S. Ct. at
596-97; see Rita, 551 U.S. at 351. If the district court
decides a non-Guidelines sentence is warranted, it must
give consideration to the extent of any departure from
the Guidelines and justify, under § 3553(a), any such
departure. See Gall, 128 S. Ct. at 597; see also Rita, 551
U.S. at 351.

The district court did not sentence Hurt to a presumed,
default sentence within the Guidelines range merely
because the sentence imposed fell within the range.
Rather, pursuant to Gall, it began with the Guidelines as
its benchmark and did not stop there; it moved on to the
statutory § 3553(a) factors, which the parties addressed,
including any objections they had to the Guidelines
range, and concluded that the factors did not justify a
deviation from them, stating, “I can’t think of a reason
why there is a reason to give [Hurt] less than a guideline
sentence.”

Given the fact that the district court started with the
Guidelines and did not deviate from them after it
balanced the § 3553(a) factors, and the presumption of
reasonableness we apply on appeal, see Gall, 128 S. Ct. at
597, it was not unreasonable to sentence Hurt to the
lowest end of the career offender Guidelines range.
We AFFIRM.

Chicago Criminal Lawyer - Robert J Callahan