In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3834

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIE LOVE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00-CR-28—Joan B. Gottschall, Judge.

____________

ARGUED MAY 27, 2003—DECIDED JULY 18, 2003

____________

Before BAUER, POSNER, and COFFEY, Circuit Judges.

BAUER, Circuit Judge. A jury found Willie Love guilty

of conspiracy to possess cocaine base and of three charges

related to his possession of a firearm. The court sentenced Love to a total of 295 months’ imprisonment. Love

appeals, arguing the government’s expert testimony exceeded the scope of the pre-trial notice and violated Federal Rule of Evidence 704(b), and that the prosecutor

made an improper comment during closing arguments. For

the reasons stated herein, we affirm.

BACKGROUND

On January 7, 2000, David Johnson met an individual

named Pablo to discuss a possible drug transaction. Pablo
2 No. 02-3834

was actually an undercover FBI agent whose real name

was Paul Vina. Johnson agreed to sell one-half kilogram

of cocaine base for $11,000. After the deal was made,

Johnson began searching for a supplier. Johnson contacted

appellant Willie Love and Love agreed to supply one-half

kilogram of cocaine base for $10,500. After Love procured

the drugs, he met Johnson to give him four 125-gram

quantities of crack cocaine. Because Love had not yet

received any compensation for the drugs, he accompanied

Johnson to the deal.

Johnson and Agent Vina had agreed to meet at a McDonald’s restaurant in Berwyn, Illinois. Johnson arrived

at the restaurant with Love following close behind. Johnson got into the passenger seat of Agent Vina’s car and

showed Vina the cocaine. The two men left the car to

retrieve the money located in the trunk. At that moment,

FBI agents converged on Johnson and placed him under

arrest.

Meanwhile, Agent Mark Horton approached Love’s car,

identified his office, and told Love that he was under arrest and to turn his car off. Love attempted to escape

and collided with an FBI agent’s car. Undaunted, he

continued to drive toward the exit of the parking lot. As

FBI agents scrambled to cut off his means of escape, Love

tossed a loaded 9mm Lugar pistol with an obliterated

serial number out of his vehicle. Love was finally apprehended after he smashed into another agent’s car. The

agents searched Love’s vehicle and found three cellular

phones (one which was registered to another individual)

and a pager.

Prior to trial, the government notified Love that it

would call a drug trafficking expert. The government

tendered Agent Wayne Hunter, an investigator with the

Drug Enforcement Administration, as an expert under

Federal Rule of Evidence 702. The government said that
No. 02-3834 3

Hunter would testify, inter alia, about “the use of third

parties for security and concealment purposes” in drug

transactions. The district court accepted Hunter as an

expert under FRE 702. At trial, Hunter testified that

the amount of base cocaine seized from Johnson was

consistent with distribution quantities. He further noted

that weapons are common at drug deals and drug dealers

often conceal the ownership of their cell phones. Finally,

Hunter testified about the presence of third parties at

drug sales:

AUSA: Now, based on your training and experience,

is it common for persons involved in a drug

conspiracy to bring people to a drug deal

who do not know what is going on?

Hunter: No, ma’am. The only time that I’ve seen in

sixteen years an individual bring someone else to a drug deal is to fulfill a very

specific role, a role similar to what I’ve described earlier, protection, counter-surveillance, a ruse family. That type of thing.

Love also asserts that the prosecutor made an improper comment during closing arguments when he made

reference to “a lawyer’s trick.” During the cross-examination of co-defendant, David Johnson, Love’s counsel attempted to place Johnson’s veracity in doubt by questioning Johnson about testimony his girlfriend had given at

his bond hearing. Johnson experienced difficulties recalling the details of this subject matter. During closing

argument, defense counsel seized upon this line of questioning:

And he lied before your very eyes when he testified. He

was on the stand, I think it was Tuesday, I said you

remember when the mother of your children got on

the witness stand . . . and said you worked at this
4 No. 02-3834

body shop? Do you remember that? No, I have no recollection. It didn’t happen.

Here is the mother of your children . . . polluting

the courtroom with perjury, and you don’t remember

it. Can you believe that? Can you believe that for one

second that you would allow someone close to you to

do that and you don’t remember it?

And then what I had to do was come back the next

day with the transcript. And I show it to him. I said is

this the transcript? Is this Ms. Moore’s testimony? He

says yes it is. Now all the sudden he remembers. He

changed his testimony right before your eyes.

In rebuttal, the government pointed out that Johnson’s

credibility was not damaged because defense counsel asked

about specific questions, which Johnson could not possibly remember verbatim:

AUSA: Now, [defense counsel], who is a very

skilled questioner, talked to you a moment about his common-law wife’s testimony that he asked David Johnson

about. And I want to point out a lawyer’s

trick that you saw.

DEFENSE: Objection to lawyer’s tricks, Judge. That’s

improper.

COURT: Sustained.

AUSA: I will withdraw my comment, your Honor.

The jury found Love guilty of conspiracy to possess 476

grams of cocaine base with the intent to distribute, in

violation of 21 U.S.C. § 846; carrying a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c); possessing a firearm after previously

being convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1); and possessing a firearm with an obliterated
No. 02-3834 5

serial number, in violation of 18 U.S.C. § 922(k). The court

denied Love’s motion for a new trial and sentenced him

to 295 months’ imprisonment.

ANALYSIS

A. Expert Testimony

Love argues that Agent Wayne Hunter’s testimony

exceeded the scope of the pre-trial notice and also violated Federal Rule of Evidence 704(b) because he testified

as to Love’s state of mind. The government asserts review

is for plain error because Love failed to object to the expert’s

testimony. We agree. The transcript reveals an absence

of any objection from Love when the testimony at issue

was elicited, thus, we review the decision to admit such

testimony for plain error. United States v. Curtis, 280 F.3d

798, 801 (7th Cir. 2002).

Love’s first argument centers on a single, specific comment from Hunter, which was elicited in the following

colloquy:

AUSA: Now, based on your training and experience, is it common for persons involved in a drug conspiracy to bring

people to a drug deal who do not know

what is going on?

Agent Hunter: No, ma’am. The only time that I’ve

seen in sixteen years an individual

bring someone else to a drug deal is

to fulfill a very specific role, a role similar to what I’ve described earlier, protection, counter-surveillance, a ruse

family. That type of thing.

Love argues that this statement exceeded the scope of the

government’s proffer. His contention is without merit.
6 No. 02-3834

In the government’s final proffer, it notified Love that

Hunter would explain “the security measures that are

common in transactions including street-level distribution

of crack . . . [and] the use of third parties for security

and concealment purposes (for example, to conduct countersurveillance, hold weapons, drugs, or money, or to

make the deal appear innocent).” That is precisely what

Hunter did at trial. Hunter’s testimony is a replica of

the government’s pre-trial notice.

Love next contends that Hunter’s testimony violated

Federal Rule of Evidence 704(b) because he expressed an

opinion as to Love’s mental state. Federal Rule of Evidence 704(b) provides:

No expert witness testifying with respect to the mental

state or condition of a defendant in a criminal case

may state an opinion or inference as to whether the

defendant did or did not have the mental state or

condition constituting an element of the crime charged

or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The critical question is whether the expert referred to

the intent of the defendant. United States v. Lipscomb, 14

F.3d 1236, 1239 (7th Cir. 1994). Agent Hunter clearly did

not. Love fails to show a single instance where Hunter

spoke about Love’s mental state. Hunter spoke about

the common practices of drug dealers and how typical

drug sales occur. We have long held that such testimony

is permissible. See, e.g., United States v. Cruz-Velasco,

224 F.3d 654, 660 (7th Cir. 2000); United States v. Brown,

7 F.3d 648, 652 (7th Cir. 1993); United States v. Foster, 939

F.2d 445, 451 (7th Cir. 1991). Hunter spoke in general

terms, not specifically about Love. Moreover, at trial, the

government emphasized that Hunter’s opinion was based

on his knowledge of common criminal practices and not

on some special knowledge of or assumption about Love’s
No. 02-3834 7

mental processes. The generalized nature of Hunter’s

testimony and his lack of involvement with Love’s case

were readily apparent throughout the direct and cross

examinations of Hunter, and thus, FRE 704(b) was not

violated.

B. Prosecutorial Misconduct

We review the denial of a motion for a new trial for an

abuse of discretion. Whiting v. Westray, 294 F.3d 943, 944

(7th Cir. 2002). Under the abuse of discretion standard, we

reverse only if we have a strong conviction of error. United

States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001).

We are asked to decide whether the prosecution’s remark about a “lawyer’s trick” was improper. If it is not,

our analysis ends and the defendant’s claim fails. United

States v. Whitaker, 127 F.3d 595, 606 (7th Cir. 1997). The

propriety of the comment is a difficult question. But even

if a prosecutor’s comment was improper, the question remains as to whether the remark “so infected the trial

with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168,

181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)). To determine whether a defendant was so

prejudiced, we consider the following: 1) whether the prosecutor misstated the evidence; 2) whether the remark

implicated specific rights of the accused; 3) whether the

defense invited the response; 4) the trial court’s instructions; 5) the weight of the evidence against the defendant;

and 6) the defendant’s opportunity to rebut. Whitehead

v. Cowan, 263 F.3d 708, 728 (7th Cir. 2001). The most

important factor is the weight of the evidence against

the defendant. Howard v. Gramley, 225 F.3d 784, 793 (7th

Cir. 2000).

Applying these factors to this case, it is apparent that the

prosecutor in no way misstated the evidence. He simply
8 No. 02-3834

commented on defense counsel’s impeachment technique.

Love does not claim, nor could he, that the remark implicated specific rights. Moreover, the district court properly dealt with the situation. After the objection was

made, the district court sustained the objection and the

government withdrew the comment. The court also reminded jurors during the jury instructions that statements of counsel are not evidence. Given the isolated

nature and lack of gravity of the comment, the court’s

actions to rectify the situation were sufficient. Moreover,

the weight of the evidence against Love is overwhelming.

Because Love cannot show the prosecutor’s comment

affected the outcome of his trial, United States v. Morgan,

113 F.3d 85, 89 (7th Cir. 1997), his claim fails. Accordingly, the judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-18-03