In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-4195

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RODNEY HENDERSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 1135—Matthew F. Kennelly, Judge.

____________

ARGUED MAY 15, 2003—DECIDED JULY 25, 2003

____________

Before BAUER, COFFEY, and DIANE P. WOOD, Circuit

Judges.

BAUER, Circuit Judge. On December 19, 2001, a grand

jury returned an indictment charging Defendant Rodney

Henderson with one count of distribution of cocaine base in

violation of 21 U.S.C. § 841(a)(1) for activities dating back

to August 1998. Prior to trial, Henderson moved to dismiss

the indictment on the basis of prejudicial pre-indictment

delay, but the district court denied that motion. Henderson

was convicted after a three-day jury trial, and his subsequent motions for a new trial and a judgment of acquittal

were also denied. The court then sentenced Henderson to

151 months’ imprisonment and five years of supervised

release. Henderson appeals the prosecution’s attempt to
2 No. 02-4195

bolster the credibility of a government informant at trial as

well as the denial of his motion to dismiss for pre-indictment delay. We affirm.

BACKGROUND

In March of 1998, Willie McPhaul, a cocaine dealer, began

providing the government with information on local drug

dealers and arranging undercover buys. McPhaul’s first

deal with Henderson occurred when McPhaul telephoned

Henderson’s place of employment, the What’s Up Barbershop in North Chicago, Illinois, on August 27, 1998, to

arrange for the purchase of four and one-half ounces of

crack cocaine. The conversation, which was recorded by the

government, began with McPhaul asking Henderson how

much he would charge for “four and a half,” referring to

the four and one-half ounce quantity McPhaul sought.

Henderson replied by asking, “Oh, hard?” (meaning crack

cocaine). McPhaul replied, “Yeah,” and Henderson informed

him the cost would be “25,” meaning $2,500.00. McPhaul

agreed to the deal and told Henderson that they would meet

later that day or the next.

McPhaul telephoned Henderson the following day, August

28, 1998, to arrange a meeting time and place. Henderson

instructed McPhaul to meet him at the What’s Up Barbershop at one o’clock that afternoon. Prior to the meeting, FBI

agents thoroughly searched McPhaul’s truck, finding no

narcotics, and strapped a body wire to McPhaul to record

the deal. McPhaul then drove to Henderson’s barbershop,

entered the building (at which time surveilling agents could

not see McPhaul), used the restroom, spoke with a few

unidentified patrons, and then exited the barbershop with

Henderson. The two men proceeded to McPhaul’s truck,

wherein Henderson asked McPhaul if he had the money

to pay for the drugs. McPhaul replied that he did, and

Henderson responded that he would be right back.
No. 02-4195 3

Henderson then exited McPhaul’s truck and entered a

nearby residential building. He returned a short time later

and reentered McPhaul’s truck, placing a plastic bag containing approximately 122.3 grams of crack cocaine in

the glove compartment. McPhaul paid Henderson, who

exited the truck and returned to the barbershop, and then

McPhaul drove to a pre-arranged location to meet with FBI

agents. Agents again searched McPhaul’s truck and located

the drugs Henderson left in the glove compartment.

Agents did not immediately arrest Henderson because the

government planned to use McPhaul to conduct investigations into other dealers and his status as an informant had

not been made public. Over the next three years, McPhaul

arranged undercover drug deals with four other crack

dealers in Illinois and Wisconsin, a Mexican cocaine supplier, and an ecstasy dealer in North Carolina. In the

summer of 2001, the government began plea negotiations

with McPhaul and indicted him in November 2001.

On December 19, 2001, Henderson was indicted. Henderson sought to dismiss the indictment on the grounds that

the delay of slightly over three years prejudiced his ability

to present an alibi or identity defense because the barbershop had since closed, two former employees could not

recall anything about the day in question, and a possible

third witness (the owner’s daughter) had died. The district

court denied the motion, finding that the claim of prejudice

was speculative because there was no indication that any of

the witnesses or evidence to which Henderson pointed

would have actually been helpful to his defense. The court

also found that the government had not acted with bad

faith or recklessness.

Prior to trial, the government sought to prohibit Henderson from attacking McPhaul’s credibility, provided the

government did not call McPhaul as a witness. Henderson

argued that McPhaul’s credibility was relevant because
4 No. 02-4195

1 Apparently, McPhaul was arrested for selling drugs while

assisting the government in other cases. Henderson sought to

introduce this evidence in order to show that McPhaul had other

suppliers from whom he could obtain drugs outside of the government’s knowledge in order to frame Henderson.

McPhaul had the motive and opportunity to frame Henderson (in order to curry favor with the government and help

his own plea deal) and that he would attack McPhaul’s

credibility on those grounds. The district court ruled that

Henderson could introduce evidence regarding McPhaul’s

motive and opportunity to plant the drugs and frame

Henderson. Specifically, the court decided that Henderson

could elicit evidence regarding the existence of McPhaul’s

drug sources prior to his cooperation with the government,

that McPhaul engaged in other drug transactions while

cooperating with the government,1

 that McPhaul was not in

the FBI agents’ view the entire time he was inside the

What’s Up Barbershop, and that McPhaul was attempting

to work out a plea deal with the government, which gave

him a motive to plant the drugs.

The government responded by arguing that United States

v. Lindemann, 85 F.3d 1232 (7th Cir. 1996), permitted the

introduction of evidence that McPhaul had cooperated in

cases against approximately twenty other individuals, resulting in guilty pleas in three of the six cases that had

been resolved at that time. The district court agreed with

the government’s position and permitted the government to

question one of the FBI agents on re-direct examination

about McPhaul’s involvement in other cases. Following that

brief testimony, the court issued the following instruction

to the jury:

“You just heard some testimony in which there was a

reference made to guilty pleas that were made by other

people in other cases. The fact that other people may
No. 02-4195 5

have pled guilty in other cases cannot be considered by

you as any evidence of the guilt of the defendant in this

case.”

Henderson renewed his motion to dismiss based on preindictment delay following the close of the government’s

case, which was again denied. After the jury returned a

guilty verdict, Henderson moved for a new trial, arguing

that the government improperly bolstered McPhaul’s credibility as a non-testifying witness. The district court denied

this motion, relying on United States v. Lindemann, and

subsequently sentenced Henderson to 151 months’ imprisonment and five years of supervised release. This appeal

ensued.

ANALYSIS

A. Bolster of McPhaul’s Credibility

We review the district court’s evidentiary rulings for an

abuse of discretion. United States v. Bonner, 302 F.3d 776,

780 (7th Cir. 2002); United States v. Lindemann, 85 F.3d

1232, 1242 (7th Cir. 1996). We employ such deference because the district court is in the best position to judge the

admissibility of evidence due to the court’s familiarity with

the case as a whole. United States v. Curry, 79 F.3d 1489,

1495 (7th Cir. 1996). Consequently, an abuse of discretion

occurs only when no reasonable person could take the

district court’s view. United States v. Akinrinade, 61 F.3d

1279, 1282 (7th Cir. 1995).

In United States v. Lindemann, this Court discussed at

length the difference between improperly bolstering a

witness’s credibility and rehabilitating that witness following an attack on the witness’s bias. Lindemann, 85 F.3d at

1242-44. We noted that bolstering consists of enhancing a

witness’s credibility before that credibility is attacked. Id.

at 1242. When the witness has been attacked, however, his
6 No. 02-4195

credibility may be restored through admissible rehabilitation evidence. Id. We further held that an allegation by the

defendant that a witness falsely implicated him amounts to

an attack on the witness’s bias. Id. at 1243. Such an attack

is an attempt to demonstrate that the witness was motivated by self-interest, an obvious form of bias, rather than

the truth. Id.

When rehabilitating a witness in such a situation, it is

permissible to use extrinsic evidence because bias is not a

collateral issue. United States v. Scott, 267 F.3d 729, 735

(7th Cir. 2001); Lindemann, 85 F.3d at 1243. Accordingly,

the admissibility of rehabilitation evidence following an

attack on the witness’s bias is controlled solely by considerations of relevance. Rule 401 of the Federal Rules of

Evidence defines relevant evidence as that which has “any

tendency to make the existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.”

FED. R. EVID. 401 (2003).

Relevant evidence is admissible under Rule 402, but

admissibility can be limited by Rule 403. FED. R. EVID. 402,

403 (2003). The parameters of Rule 403 preclude the admission of otherwise relevant evidence “if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” FED. R. EVID. 403.

In this case, Henderson first argues that McPhaul’s credibility was not attacked because McPhaul did not testify at

trial and the government solicited evidence of his prior

deals from one of the FBI agents. Lindemann deals squarely with the issue of whether McPhaul’s credibility was

attacked by Henderson and, though McPhaul did not testify

at trial, we find no reason to create an exception to Lindemann. Henderson’s argument that McPhaul framed him
No. 02-4195 7

was an attack on McPhaul’s credibility and the government

was entitled to introduce admissible rehabilitation evidence.

That result leaves us with the question of whether evidence of McPhaul’s cooperation was relevant and not

unfairly prejudicial to Henderson. On this issue, Henderson

argues that evidence of McPhaul’s cooperation in other

cases was not relevant because McPhaul did not yet have

other “bargaining chips” with which to negotiate a lesser

sentence, thereby giving McPhaul a greater motive to frame

him. We do not agree. McPhaul’s cooperation in other cases

made it less probable that he framed Henderson because

Henderson was the first of several “bargaining chips” with

which McPhaul could work. Lindemann, 85 F.3d at 1243.

The fact that Henderson was McPhaul’s first deal does not

remove this case from the Lindemann rationale. By the

time he arranged the deal with Henderson, McPhaul had

given other names to the government and eventually

assisted with investigations of those people. McPhaul knew

that he would have multiple bargaining chips, beginning

with Henderson, and the evidence of his further cooperation

casts doubt on Henderson’s argument that McPhaul had a

greater motive to falsely implicate Henderson.

Further, Henderson’s argument speaks only to the proper

weight to be given the evidence, not its admissibility. As

noted above, Rule 401 defines relevant evidence as that

which makes an assertion more probable or less probable.

We do not find error in the district court’s decision that this

evidence was relevant, nor did the district court err in

finding that the probative value of evidence of McPhaul’s

cooperation with other government cases was not outweighed by the danger of unfair prejudice. Without this

evidence, the jury might have believed that McPhaul’s plea

deal rested solely on the Henderson case, thereby making

a motive to frame Henderson all the more reasonable. It

was not unduly prejudicial to Henderson to present the jury
8 No. 02-4195

with an accurate understanding of the situation and allow

the jury to conclude which argument was more plausible.

Finally, immediately following the admission of this evidence, the district court appropriately instructed the jury

not to infer Henderson’s guilt from evidence of McPhaul’s

cooperation in other cases that resulted in guilty pleas.

Lindemann, 85 F.3d at 1243-44.

B. Pre-Indictment Delay

Henderson next argues that the district court erred by not

dismissing his indictment because the prosecution severely

prejudiced his defense by waiting three years to charge him.

In the interim, Henderson contends, witnesses’ memories

faded, a potential witness died, and employment records

were destroyed, any of which might have supported his

defense. The prosecution counters that Henderson was not

prejudiced in the presentation of his defense and that the

delay occurred because McPhaul’s cooperation was not

complete following his drug deal with Henderson and the

government did not want to expose his informant status.

Again, we review the district court’s decision not to dismiss for pre-indictment delay for an abuse of discretion.

United States v. McMutuary, 217 F.3d 477, 481 (7th Cir.

2000). We first note that the statute of limitations for a

particular crime generally serves as a safeguard for defendants against unreasonable prosecutorial delay. Id. So long

as the indictment is sought within the applicable time

frame, and notwithstanding the possible loss of evidence or

faded memories, the defendant will normally be able to

defend himself adequately. United States v. Baker, 40 F.3d

154, 157 (7th Cir. 1994). The applicable statute of limitations was five years. 18 U.S.C. § 3282 (2003). The drug deal

between McPhaul and Henderson occurred on August 27-

28, 1998, and the indictment was returned on December 19,

2001, well within the statute of limitations.
No. 02-4195 9

Yet, the statute of limitations is not the only safeguard

afforded a defendant. The defendant may establish a due

process violation if the prosecutorial delay caused actual

and substantial prejudice to the defendant’s right to a fair

trial. McMutuary, 217 F.3d at 481-82. A defendant must

first show more than mere speculative harm but instead

must establish prejudice with facts that are specific,

concrete, and supported by evidence. Id. at 482. If a defendant makes the proper showing, the burden shifts to

the government to demonstrate that the “‘purpose of the

delay was not to gain a tactical advantage over the defendant or for some other impermissible reason.’” Id. The

government’s reasons are then balanced against the prejudice to a defendant to determine whether a due process

violation occurred. United States v. Canoy, 38 F.3d 893, 902

(7th Cir. 1994).

We have previously held that the death of a potential

witness alone is insufficient to establish actual and substantial prejudice. United States v. Koller, 956 F.2d 1408,

1414 (7th Cir. 1992); United States v. Valona, 834 F.2d

1334, 1338-39 (7th Cir. 1987); United States v. Solomon,

688 F.2d 1171, 1179 (7th Cir. 1982). The same holds true

with regard to witnesses’ memories that have faded, United

States v. The Honorable Judges of the Circuit Court of Cook

County, 138 F.3d 302, 310 (7th Cir. 1998) (“It is not enough

simply to speculate . . . that witnesses’ memories might

have faded because of the passage of time.”), and the loss of

possible physical evidence, such as employment records,

United States v. Spears, 159 F.3d 1081, 1085 (7th Cir.

1998); Canoy, 38 F.3d at 902-03.

Henderson’s argument that his defense was prejudiced is

based on these facts: Following his indictment, he interviewed two former barbershop employees who remembered

him working there but did not remember anything about

August 28, 1998. What a clear recollection might have

uncovered to aid Henderson is unsaid. Likewise, the death
10 No. 02-4195

2 Henderson believes an appointment log or transaction receipt

would have shown McPhaul was in the barbershop prior to August

28, 1998, at which time McPhaul might have foreseen that Henderson would choose to complete the deal at the barbershop and

stashed the drugs inside so that he could retrieve them in order

to frame Henderson.

of a potential, third witness (the owner’s daughter), without

some evidence of what she might have supplied to aid

Henderson, does not meet the requirement to show prejudice.

Finally, Henderson argues that his defense was hampered

because the owner had destroyed all employment records

after closing the shop well before Henderson was indicted.

We fail to see how the possible existence of business records

would have supported Henderson’s particular defense.

When McPhaul called Henderson on August 28, 1998,

Henderson chose the time and location for their meeting.

McPhaul did not know prior to their telephone conversation

that Henderson would chose to complete the drug deal at

his place of employment. As a result, it is pure speculation

to conclude that McPhaul could have planted the drugs

prior to that day and that any barbershop witnesses or

business records would have placed him in the store for that

supposed purpose.2

 FBI agents kept McPhaul under surveillance (except for his brief detour into the barbershop)

making it highly unlikely for him to have obtained the

drugs from anyone other than Henderson.

Having determined that Henderson failed to establish

anything beyond speculation, we note briefly that the

government demonstrated that the delay was not used to

gain a tactical advantage over Henderson or for some other

impermissible reason. To the contrary, the government

established that the delay was occasioned by the timing of

McPhaul’s cooperation, in that he had not yet completed

assisting the government with other investigations. Quite
No. 02-4195 11

reasonably, the government did not want to expose his

status as an informant and sacrifice those investigations.

Henderson failed to demonstrate that the district court

abused its discretion by not dismissing the indictment for

prosecutorial delay.

Accordingly, the decision 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—7-25-03