In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3461

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARISTEED CANNON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 907—Milton I. Shadur, Judge.

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ARGUED SEPTEMBER 28, 2007—DECIDED AUGUST 20, 2008

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Before POSNER, FLAUM, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Aristeed Cannon was convicted of

distributing crack cocaine in violation of 21 U.S.C.

§ 841(a)(1). On appeal he makes several evidentiary

arguments—most notably, an attack on the admission of

a videotaped deposition taken pursuant to Rule 15 of the

Federal Rules of Criminal Procedure—and also challenges the

sufficiency of the evidence used to convict him. Finally,

he asks us to reconsider our case law permitting, in
2 No. 06-3461

accordance with Harris v. United States, 536 U.S. 545 (2002),

the use of judicially found facts in the imposition of a

statutory minimum sentence. We affirm Cannon’s conviction and sentence.

I. Background

Cannon was apprehended during a controlled drug

buy in Maywood, Illinois. Operating with a confidential

informant, local police and several DEA agents arranged

to purchase two ounces—two “zones,” in the drug

dealer’s parlance—of crack cocaine from Cannon. Everything about the deal operated smoothly except the audiorecording equipment that was to have memorialized the

transaction; for reasons unknown, the system failed.

Cannon arrived on schedule with his brother (who was

also apprehended and found in possession of powder

cocaine), approached the government’s undercover

vehicle, and spoke with DEA Agent Charles Ellison.

Cannon then gave Ellison two baggies of crack cocaine

(each containing roughly an ounce) in exchange for $1,500

of recorded currency. With the transaction completed,

Ellison gave the arrest signal to his surveillance team.

Cannon attempted to flee, but DEA Agent Gary Jackson,

who was observing the deal from a block away in his

parked car, quickly apprehended him in a nearby yard.

Cannon was searched and found in possession of the

$1,500 in recorded currency, several Ziploc bags, and a

small scale.

A jury convicted Cannon of distributing crack cocaine.

During trial, the government played a videotaped deposi-
No. 06-3461 3

tion of Agent Jackson in lieu of his live testimony. Videotaped testimony is the exception in criminal trials, but

the district court allowed it here because Jackson was in

the Marine Corps Reserves and was deployed to Iraq

before the start of trial, thus satisfying the “exceptional

circumstances” requirement of Rule 15 of the Federal Rules

of Criminal Procedure. Cannon and his counsel were present

for the deposition, and Jackson was subjected to crossexamination.

At sentencing the district court found, over Cannon’s

objection, that Cannon had distributed 54 grams of crack

cocaine. That finding differed from the jury’s finding that

Cannon had distributed between 5 and 50 grams of crack.

The drug-quantity evidence at trial was conflicting; the

weights measured at the local police department were

less than the results from the state police lab. The judge

credited the measurements from the state lab because

the police department’s measurements of each bag of

cocaine were less than the weights reported by the state

lab by exactly the same proportion—two-thirds. The judge

concluded from this that one of the scales may not

have been properly calibrated; his theory was that it

was highly unlikely that two scales would consistently

differ in this way by accident. Based on evidence that the

state lab regularly tested and logged the accuracy of its

equipment, the judge concluded by a preponderance of

the evidence that the state lab’s measurement of 54

grams was more reliable. That 4-gram increase triggered

the 10-year statutory mandatory minimum sentence (up

from 5 years), which the court then imposed.
4 No. 06-3461

II. Discussion

Cannon challenges the sufficiency of the evidence

supporting his conviction, citing the absence of an audiotape recording of the controlled buy (owing to the failure

of the recording equipment) and a discrepancy between

the testimony of Agent Ellison and Detective Teutonico.

The argument is meritless. We view the evidence in the

light most favorable to the government, drawing all

reasonable inferences in its favor, and will uphold the

jury’s verdict so long as “ ‘any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.’ ” United States v. Jones, 418 F.3d 726, 729

(7th Cir. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

Despite the failure of the audio-recording equipment,

the government’s evidence was more than sufficient,

including as it did the testimony of multiple witnesses

who participated in the controlled buy and arrested

Cannon in possession of the buy money as he attempted

to flee the scene. The contradictory testimony of Agent

Ellison and Detective Teutonico, who provided inconsistent accounts of whether Ellison intended to purchase two

or three ounces of cocaine, was minor, unimportant, and in

any event a matter for the jury to weigh in evaluating

their testimony. We do not second-guess questions of

witness credibility. United States v. Bowman, 353 F.3d 546,

552 (7th Cir. 2003). This record is easily sufficient for us

to conclude that a rational jury could find Cannon guilty

beyond a reasonable doubt.

Next up is Cannon’s assertion that admission of DEA

Agent Jackson’s videotaped deposition was unconstitu-
No. 06-3461 5

tional and unfairly prejudicial under Rule 403 of the

Federal Rules of Evidence. We review this argument for

plain error because Cannon failed to raise it below. See

United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). Agent

Jackson was deployed to Iraq before trial, and the district

court granted the government’s request under Rule 15 of

the Federal Rules of Civil Procedure to take his testimony

by videotaped deposition before he left the country.

Cannon was present with his counsel during the deposition, and Jackson was subjected to full cross-examination.

In an underdeveloped argument, Cannon asserts that the

admission of the videotaped deposition was unfairly

prejudicial and possibly unconstitutional because Jackson’s

testimony was not subjected to the rigors of an actual trial.

Although rare, preservation of witness testimony by

deposition is authorized in criminal cases under Rule

15(a)(1) when “exceptional circumstances and . . . the

interests of justice” require it. The defendant’s presence

is required, and the “scope and manner of the deposition

examination and cross-examination must be the same

as would be allowed during trial.” Rule 15(c), (e)(2). The

rule provides that all or part of the deposition may be

used as evidence “as provided by the Federal Rules of

Evidence.” Rule 15(f). Cannon does not argue that the

terms of the rule were not met, and we have previously

upheld the use at trial of Rule 15 depositions against

Confrontation Clause challenges. See, e.g., United States

v. Donaldson, 978 F.2d 381, 392-93 (7th Cir. 1992); United

States v. Kehm, 799 F.2d 354, 360-61 (7th Cir. 1986). These

cases predate Crawford v. Washington, 541 U.S. 36 (2004),

but we see no reason, post-Crawford, to question the

constitutionality of admitting fully cross-examined testi-
6 No. 06-3461

mony preserved by a properly conducted Rule 15 deposition. Crawford held that the Confrontation Clause bars

the admission of testimonial statements of witnesses

absent from trial unless the witness is unavailable and

the defendant had a prior opportunity to cross-examination. Id. at 68. Both requirements were satisfied here.

Cannon’s argument about unfair prejudice is frivolous.

Cannon also questions the chain of custody for the crackcocaine evidence used to convict him. Again, he did not

raise this point below, so our review is for plain error. Hall,

142 F.3d at 996. Cannon suggests that powder cocaine

seized at the scene from his brother could have been

commingled with the crack cocaine that he sold to Agent

Ellison because Detective Teutonico did not place the

crack cocaine in a sealed evidence bag. The record reflects,

however, that Detective Teutonico segregated the contraband at the scene, and the government’s evidence

carefully traced the path of Cannon’s crack cocaine as the

police submitted it to the state lab on three occasions

prior to trial. There was little possibility of commingling;

crack and powder cocaine bear little physical resemblance

to each other, and Teutonico marked the evidence at the

scene. The drugs remained in official custody at all

times, and there is no evidence of tampering, so we may

presume that the evidence was properly handled. United

States v. Boykins, 9 F.3d 1278, 1285 (7th Cir. 1993). Regardless, a break in the chain of custody goes to the weight of

the evidence, not its admissibility. United States v. Williams,

44 F.3d 614, 618 (7th Cir. 1995). We find no error, let alone

plain error.
No. 06-3461 7

Cannon’s final argument is one pertaining to his mandatory minimum sentence, and this circuit’s case law readily

disposes of it. By special verdict the jury found Cannon

guilty beyond a reasonable doubt of distributing at least

5 but less than 50 grams of cocaine base, subjecting him

to a prison term of 5 to 40 years. The district court, however, found by a preponderance of the evidence that

Cannon delivered 54 grams, thus triggering the mandatory minimum sentence of 10 years under 21 U.S.C.

§ 841(b)(1)(A). That judicial fact-finding, Cannon suggests, violated his Sixth Amendment right to a jury trial.

The Supreme Court held in Harris v. United States that

the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), does

not apply to facts triggering a statutory minimum sentence

when that minimum would not exceed the maximum sentence allowable under the jury’s verdict. Harris,

536 U.S. at 557. In other words, a judge may use the

preponderance standard to find facts that increase a

defendant’s sentence when those facts do no more than

raise a statutory minimum. 

We have repeatedly rejected arguments that Harris is no

longer good law after Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 543 U.S. 220 (2005). See,

e.g., United States v. Cannon, 429 F.3d 1158, 1160 (7th Cir.

2005); United States v. Jones, 418 F.3d at 730-32. We do

so again here.

AFFIRMED.

8-20-08