Project Posner

Lead opinion by COFFEY

    678 COFFEY, Circuit Judge. On July 15, 1997, the defendant-appellant Robert Amerson ("Amerson") was convicted before a jury of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On appeal, Amerson argues that the trial court committed error: 1.) in refusing to allow the introduction of the affidavit of Timothy Heard; 2.) in refusing to find that the prosecutor improperly distorted the burden of proof during closing argument; 3.) in denying Amerson's request for a Franks hearing; and 4.) in refusing to hold that the evidence was insufficient to support a conviction. We affirm.

   I. BACKGROUND

   At approximately 7:30 p.m. on February 11, 1997, officers of the City of Peoria, Illinois, Police Department executed a search warrant at an upstairs unit of a two-story, multi-unit apartment building located at 1418 N.E. Adams Street, Peoria, Illinois. Three police officers, Officers Mumaw, Mitchell, and Anderson, approached the second floor unit by ascending a flight of stairs leading to a landing area just outside the apartment's kitchen door. The landing area outside the kitchen door was monitored with a "sensor light," and as the officers ascended the stairs and approached the door, the light activated. Officer Mumaw knocked on the door and announced loudly "Police, search warrant!", and at this time, the apartment's lessee, Jesse Tolliver ( "Tolliver"), appeared at a window next to the kitchen door and shouted "It's the police!" and disappeared from view. At the same time, the officers heard the sound of people running inside the apartment, and they forced open the door and entered the apartment.

   Following a plan established prior to the raid, Officer Mumaw ran into the kitchen, down a hallway, and into a bedroom located in the rear corner of the apartment. At trial, Mumaw testified that when he arrived in the bedroom, he observed a black male identified as Timothy Heard ("Heard"), along with two black females, Sharon Parker and Angela Hill. He saw Heard run to the bedroom window, which was covered with a large, heavy curtain. According to Mumaw, it appeared that Heard "tried to punch a small 35 millimeter canister^[1] out the window, but it didn't make it because the curtain didn't go out the window . . . ." As Heard was punching 679 at the curtain and trying to dispose of the film canister, Officer Mumaw tackled him. A second officer, Mitchell, entered the room and assisted Mumaw in placing Heard in custody, and at this time, Mumaw observed the canister lying on the floor inside the bedroom near the window adjacent to the curtain. Inventory and analysis of the contents of the film canister revealed seven individually wrapped, small rocks of cocaine weighing approximately 2.7 grams total.

   At the time Heard struck and broke the glass in the window through the heavy curtain in the second-floor bedroom, three other officers were stationed outside and were standing directly below the window, Officers Moore, Kirwan, and Patterson. Officer Patterson "heard glass breaking from above [him]. At that time [he] looked up and saw pieces of glass falling down just in front of [him]." Officers Moore, Kirwan, and Patterson immediately searched the ground with their flashlights and found nothing but pieces of a broken window glass. The three officers then proceeded up the stairs in order to help the officers inside with the search of the apartment.

   After arresting Heard and securing the other occupants of the apartment, Officer Mitchell, the lead officer, stationed himself at the front door and proceeded to assist the officers in the conducting of a "sting" operation upon those individuals who they anticipated might be appearing at the front door to sell or purchase drugs. Between 7:30 p.m. and 8:30 p.m. three people came to the door. The first group, two black females, arrived and asked for Tolliver. Officer Mitchell refused to allow them entry, and they left. The other individual was a white female, who was arrested by Officer Mitchell after attempting to purchase a "look-alike"^[2] drug for $ 50.

   At 8:50 p.m., approximately one hour and twenty minutes after the warrant entry into the apartment, another officer, Officer Couve, assigned to maintain surveillance and positioned across the street from the apartment, radioed the officers in the apartment that a black male was approaching the apartment on foot. The officers inside the apartment waited until they heard a knock, whereupon Officer Mitchell queried the person knocking, "Who is it?" The person (Amerson) outside the kitchen door responded "It's me, Rob," at which time Tolliver, under arrest and inside the apartment, shouted "Rob, it's the police! ", alerting the officers to open the door. Officer Mitchell testified that when he opened the door he saw Amerson, illuminated by the sensor light, standing on the porch just three feet away, and holding a plastic bag in his hands that contained a white substance. According to Officer Mitchell, upon observing the officers, Amerson immediately "threw his hands in the air above his head, at which time this object [the plastic bag] came out of his hand and went over his head, off the landing and onto the ground behind him." Officers Moore, Mumaw, and Mitchell "reached out and grabbed Mr. Amerson and . . . pulled him inside the apartment and after a struggle he [was] handcuffed" and arrested. Officer Moore then went "downstairs and . . . looked outside on the grass for what [he] believed at the time to be cocaine thrown from [Amerson's] hands and that's what [he] found laying on the ground." Officer Moore located the cocaine "fairly quickly" in a location he described as follows: "if you just walked out of the kitchen and onto the landing area and looked straight down over the railing, you could see the object in the grass directly in front of the porch." Officer Moore, who was using his flashlight to search, discovered a plastic bag containing a white substance, which the police seized and was later analyzed and found to be 6.4 grams of crack cocaine.

   The defendant Amerson was arrested and charged with possession of cocaine base with intent to distribute in violation of 680 21 U.S.C. § 841(a)(1). Before trial, the defendant filed a motion with the court and requested a Franks hearing, arguing that the investigating officer's affidavit in support of a search warrant was based on the false statement of an informant who had claimed to have seen Amerson at the apartment on a prior occasion during a time frame Amerson denied being at the apartment. The court denied the motion, holding that Amerson failed to establish that the investigating officer's affidavit was false and ordered the parties to proceed to trial. At trial, Amerson called Heard to the witness stand, and Heard invoked his Fifth Amendment privilege and refused to testify. In response, the defense counsel proffered Heard's signed affidavit, which stated:

I Timothy Herd [sic] do solemly [sic] swear that the statement I'm about to sign is correct and is given at [sic] my own free will. On February 11th 1997 between 6:30-7:30 p.m. at 1418 N.E. Adams I heard police enter the apartment. Being in possession of two packages of cocaine. I ran to the back bedroom and attempted to dispose of them. One landed inside. Later one was found outside. Robert Amerson was unware [sic] of any of this, for he was not yet present, but was later charged.

The government objected to the admission of the affidavit, contending that it was hearsay under Fed. R. Evid. 802 since it was made out of court and was offered for the truth of the matter asserted. The defense counsel responded that the document was admissible hearsay under Fed. R. Evid. 804(b)(3) because it was a statement against Heard's penal interest. The judge refused to accept the affidavit, ruling that Rule 804(b)(3) requires that the affidavit be supported by corroborating circumstances demonstrating the truth of the out of court assertion and that Amerson had failed to demonstrate the existence of corroborating circumstances.

   The defense also objected to the prosecutor's statement during closing argument: "what you've got here are vice and narcotics officers--experienced drug enforcement officers whose job it is to arrest dope peddlers . . .", and "those officers all indicated that it was part of their duties to rid our streets of cocaine . . . ." Amerson's counsel argued that the prosecutor's statement amounted to vouching for the police officer witnesses. The judge sustained the defendant's objection. Later in the closing argument, the prosecutor stated: "bottom line here, ladies and gentlemen, is this. Who is telling the truth and who is lying here . . . . You simply cannot believe the testimony of these police officers and believe the defendant's testimony at the same time." Amerson's counsel once again objected, stating that the prosecutor was distorting the burden of proof. The trial judge overruled this objection and found that the prosecutor's statements were appropriate since "there was direct testimony from each side" regarding whether Amerson threw the plastic bag of cocaine.^[3]

   At sentencing, the trial judge determined that Amerson was a career offender^[4] (pursuant to U.S.S.G. § 4B1.1) and had a guideline sentencing range of 360 months to life imprisonment. Nevertheless, the judge departed downward because Amerson, who was 52 at the time of sentencing, had a serious heart condition with a life expectancy of less than 360 months. The judge stated: "taking these two items together, that is your medical condition and the belief that I have that the substance of your prior convictions do 681 not justify what in effect would be a life sentence, it is my decision to depart downward from the guidelines by cutting your sentence in half." On December 5, 1997, the judge imposed a sentence of 180 months imprisonment followed by an eight year term of supervised release.

   II. ISSUES

   On appeal, Amerson raises four issues, arguing that the trial court committed error: 1.) in refusing to allow the introduction of the affidavit of Timothy Heard; 2.) in refusing to find that the prosecutor improperly distorted the burden of proof during closing argument; 3.) in denying Amerson's request for a Franks hearing; and 4.) in refusing to hold that the evidence was insufficient to support a conviction.

   III. DISCUSSION

A. The Heard Affidavit

   At trial Amerson requested that Heard's affidavit be admitted as a declaration against penal interest under Federal Rule of Evidence 804(b)(3).^[5] The trial court refused to admit the statement, ruling that Amerson had failed to demonstrate that there existed "corroborating circumstances which clearly indicate the trustworthiness of the statement. I can not in good conscience find that that . . . element has been met."

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . .

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil and criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

   We begin by noting that "out-of-court statements are generally inadmissible because they are presumed to be unreliable." United States v. Hall, 165 F.3d 1095, 1110 (7th Cir. 1999) (quoting United States v. Hooks, 848 F.2d 785, 796 (7th Cir. 1988)). "We review the district court's decision that a particular hearsay statement is admissible under Rule 804 only for an abuse of discretion." United States v. Doerr, 886 F.2d 944, 954 (7th Cir. 1989) (citation omitted). "Under the three part test we set forth in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), for determining the admissibility of a statement under Rule 804(b)(3), a court must find that, (1) the declarant's statement was against the penal interest of the declarant, (2) corroborating circumstances exist indicating the trustworthiness of the statement, and (3) the declarant must be unavailable." United States v. Moore, 936 F.2d 1508, 1516 (7th Cir. 1991) (internal quotations omitted). Further, we have previously held that we will not

second-guess the sentencing judge['s determinations] because he or she has had the best opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject's reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture and body movements, as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record. United States v. Garcia, 66 F.3d 851, 856 (7th Cir. 1995) (citation, internal quotations, and emphasis omitted).

   Heard's affidavit states: "Being in possession of two packages of cocaine. I ran to the back bedroom and attempted to dispose of them. One landed inside. Later one was found outside." (emphasis added). 682 Heard's affidavit is untruthful for several reasons. Initially, Heard contends that he was in possession of two packages of cocaine and that "one landed inside" while the other "was found outside." Though Heard refers to two packages of cocaine in his affidavit, he never affirmatively states that the second package of cocaine "found outside" just below the front porch and not in the vicinity of the bedroom window was the same package he attempted to dispose of outside the bedroom window. Through the mechanism of a carefully drafted affidavit, Heard attempts to deceive this Court into believing that the second package, found far and away from the bedroom window in question (thirty to forty feet to the east) and just below the front porch, belonged to him (Heard), not Amerson, and thus was not the bag of cocaine thrown by Amerson over his head and off the front porch and found immediately by Officer Moore. All this despite the fact that Officer Mumaw testified that Heard was prevented from propelling anything out of the window, for "there was a large curtain in the way where this gentleman was trying to punch" and the canister found on the floor, containing seven individually wrapped packages of crack, "didn't make it because the curtain didn't go out the window." As Officer Patterson testified, he, along with Officers Moore and Kirwan, was standing directly and immediately below the broken bedroom window and "heard glass breaking from above [him]. At that time [he] looked up and saw pieces of glass falling down just in front of [him]." The three officers immediately searched the surrounding area with their flashlights and found nothing but broken glass. An hour later, Amerson appeared on the scene (at the front porch). Three officers (Officers Moore, Mitchell, and Mumaw) arrested him after observing a bag of cocaine in his hands and observing him (Amerson) throw the plastic bag of rock-like crack cocaine "over his head, off the landing and onto the ground behind him." At this time, Officer Moore immediately descended the front steps and retrieved Amerson's plastic bag containing crack cocaine. The affidavit states that Heard "attempted to dispose of" both packages. Again, Heard, through craftily framed phrases, does not affirmatively state that he disposed of the second package, only that he "attempted to" dispose of the package.

   In addition, the location where the police officers discovered the crack cocaine (immediately below the porch where Amerson was standing) makes that part of Heard's affidavit wherein he states that he "attempted to dispose" of the two packages of cocaine and "later one was found outside" implausible. According to the evidence at trial, the bag of cocaine found outside the building immediately below the porch where Amerson was standing was found to be "at least thirty to forty feet" east and slightly to the south of the broken window and eight to ten feet south and west of the porch (which, like the bedroom window, was on the south side of the building). It is impossible to comprehend how Heard, who dropped his one canister of cocaine in the bedroom at the time he was tackled by Officer Mumaw, would have been able to project the second package out the window and in a direction east and slightly to the south of the broken window and parallel to the building through a heavy curtain a distance of thirty to forty feet while he was in the process of falling down as he was being tackled and restrained by two officers. We are of the opinion that the trial court's exclusion of the affidavit was proper, for the information contained therein, that Heard attempted to dispose of a second package of crack through a scenario of action physically untenable without the guidance system of the latest "smart" bomb, was not only less than credible, but comes within the realm of impossibility.

   In response, Amerson contends that the fact that Heard broke the window corroborates that particular aspect of the affidavit's truthfulness. Granted both parties do agree that Heard broke the window, but they disagree as to whether Heard was 683 able to dispose of the second package of cocaine out the bedroom window, for the Government contends that Heard never had possession of another container of crack cocaine. Thus, the Government argues that Heard could not dispose of something he never had possession of. We fail to understand how Amerson's contention that Heard broke the window corroborates Amerson's version of events, for it merely corroborates that he broke the window, as the Government concludes. Furthermore, Amerson argues that the testimony of Sharon Parker, also arrested with Heard at the time of the police search, corroborates Heard's affidavit. Without being specific, Parker merely testified that Heard told her some time after he was in custody that he had "several" packages of cocaine^[6] in his possession at the time of the search warrant entry.^[7] Though it is true that Heard had a single canister which contained seven individually wrapped rocks of cocaine, Heard's affidavit is not corroborated by Parker's testimony because his affidavit stated that he had but "two packages" of cocaine, not "several" as Parker stated under oath.^[8] Additionally, Parker's testimony fails to even address the question of whether Amerson was carrying crack when he arrived on the porch at the apartment and was confronted by the three police officers.

Footnotes

[1]

   The "canister" resembled, if it was not, a container used to transport undeveloped film to the film processor.

[2]

   Police offered potential buyers "rocks" of baked Bisquick pancake mix.

[3]

   Specifically, on the one hand, Amerson denied that he possessed any cocaine when he arrived at the apartment, and on the other hand, three police officers testified that Amerson possessed cocaine when he arrived at the apartment and threw it over his head when the officers opened the door.

[4]

   Amerson's Presentence Investigation Report reflects that the defendant had previously been convicted of controlled substance felonies on six separate occasions.

[5]

   Federal Rule of Evidence 804(b)(3) provides:

[6]

   The "packages" that Heard, Parker, and Amerson refer to are distinct from the individual rocks of cocaine that were contained within the various packages.

[7]

   Parker testified as follows:

[8]

Concurrence by EVANS

EVANS, Circuit Judge, concurring. As I see it, the only issue that merits attention in this case is whether the district judge clearly abused his considerable discretion in not allowing the defense to introduce the Heard affidavit into evidence. For me, the answer to that question is a slam-dunk. He didn't. But even if he did, the error would be harmless here because the affidavit, as I see it, is as phony as a three-dollar bill. Why would Timothy Heard prepare and sign an affidavit that misspelled his name (as "Herd") but correctly spell the harder name--Amerson--of someone who just happened to be the beneficiary of the information in it? This affidavit, on its face, doesn't pass the smell test, and any prosecutor worth her salt would make mincemeat out of it in front of the jury. That said, I concur with Judge Coffey's bottom line but not necessarily with every observation he makes along the way to getting there.

Dissent by POSNER

Posner, Chief Judge, dissenting. Amerson was convicted of unlawful possession of a quarter of an ounce of crack cocaine with intent to distribute it and was sentenced to 15 years in prison. Given the length of the sentence, we should review the rulings of the district judge with more than the usual care to make sure that an innocent man has not been convicted. I do not doubt that my colleagues have tried conscientiously to do this, but I am not persuaded that the conviction can stand.

   The Peoria police raided a second-floor apartment that they suspected was a crack house. In one room they found Timothy Heard, who as they entered broke a window with his fist. The police testified that they found a small container of crack on the floor of the room. They waited in the apartment and several customers for crack showed up, one of whom they arrested. Night fell. There was a knock on the front door. It was Robert Amerson. A voice within called, "Who is it?" and Amerson answered, "It's Rob. Open the door." One of the crack dealers who was being detained in the house by the police shouted, "Rob, it's the police." Immediately the police yanked the door open and as they did so--according to the testimony of the three officers who were in the front room of the apartment--Amerson tossed a plastic bag over his shoulder. The police testified that they found the bag, containing small "rocks" of crack cocaine, on the ground in front of the building but that they found nothing but shards of glass on the ground below the window that Heard had broken. Amerson denied having had or tossed any crack.

   Amerson wanted to call Heard as a witness. Heard refused on Fifth Amendment grounds, but he signed an affidavit in which he said that on the night of the raid he had "heard police enter the apartment. Being in possession of two packages of cocaine I ran to the back bedroom and attempted to dispose of them. One landed inside. Later one was found outside. Robert Amerson was unaware of any of this, for he was not yet present, but was later charged." At first the judge was willing to allow all but the last sentence of the affidavit to be admitted into evidence as a declaration against penal interest. Fed. R. Evid. 804(b)(3). But later he 691 changed his mind, saying only that there was insufficient corroboration. This must be reckoned, on the record as it was developed (or rather left undeveloped) in the district court, a clear and prejudicial error.

   Rule 804(b)(3) makes statements against penal interest offered to exculpate a criminal defendant inadmissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement" (emphasis added), and it is on the precise meaning of the italicized adverb that the soundness of the district judge's ruling depends. At common law, declarations against penal, as distinct from financial, interest were not an exception to the hearsay rule, and while the distinction was criticized, Donnelly v. United States, 228 U.S. 243, 277-78, (1913) (Holmes, J., dissenting), it had some basis in the fact that "most instances of evidence of statements against penal interests proffered by an accused in a criminal case involve statements allegedly made to the accused or by one prison inmate to another--situations fraught with the possibility of contrivance or of unfounded braggadocio." Peter W. Tague, "Perils of the Rulemaking Process: The Development, Application and Unconstitutionality of Rule 804 (b)(3)'s Penal Interest Exception," 69 Geo. L.J. 851, 869 (1981) (quoting Department of Justice official); see also United States v. Silverstein, 732 F.2d 1338, 1346-47 (7th Cir. 1984). The possibility is especially great because "one criminal can make out-of-court statements exculpating another and then rather easily claim the privilege [against compulsory self-incrimination] when the government seeks to cross-examine him to discredit the statement." United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997). Hence the requirement that to be admissible a statement against penal interest be clearly corroborated.

   In the law of evidence, corroboration of testimony just means that there is some evidence besides the testimony itself to indicate that the testimony is trustworthy--not that it is necessarily true, but (when it is a hearsay statement) that it is sufficiently worthy of belief to have value as evidence despite the impossibility of subjecting the declarant to the fires of cross-examination. See, e.g., United States v. Petty, 132 F.3d 373, 380 (7th Cir. 1997). For the corroboration to "clearly" indicate the trustworthiness (though, again, not necessarily the truth) of the out-of-court statement requires a more probing inquiry, for example into the motive of the declarant to lie. See, e.g., United States v. Garcia, 986 F.2d 1135, 1140-41 (7th Cir. 1993); United States v. Butler, 71 F.3d 243, 253-54 (7th Cir. 1995); United States v. Nagib, 56 F.3d 798, 805 (7th Cir. 1995); United States v. Garcia, 897 F.2d 1413, 1420-21 (7th Cir. 1990); United States v. Silverstein, supra, 732 F.2d at 1346-47; United States v. Price, 134 F.3d 340, 348 (6th Cir. 1998); United States v. Mackey, supra, 117 F.3d at 29; United States v. Koskerides, 877 F.2d 1129, 1135-36 (2d Cir. 1989); see generally American Bar Association, Section of Litigation, Emerging Problems under the Federal Rules of Evidence 343-46 (3d ed. 1998). As the example of motive shows, deciding whether the corroborating evidence clearly indicates the trustworthiness of the corroborated statement requires (despite the wording of the rule) consideration not only of the corroborating evidence itself (here a broken window, as we are about to see), but also of "the circumstances in which the statements were made," United States v. Barone, 114 F.3d 1284, 1300 (1st Cir. 1997), that is, other indications of its trustworthiness or lack thereof, United States v. Silverstein, supra, 732 F.2d at 1347 (7th Cir. 1984); United States v. Mackey, supra, 117 F.3d at 29, such as the competence and incentives of the declarant. See, e.g., American Automotive Accessories v. Fishman, 175 F.3d 534, at *6 (7th Cir. 1999); United States v. Hall, 165 F.3d 1095, 1110-13 (7th Cir. 1999); United States v. Maliszewski, 161 F.3d 992, 1009 (6th Cir. 1998); cf. Idaho v. Wright, 497 U.S. 805, 821-22, (1990).

    692 Corroboration was supplied by the broken window, which indicated that Heard had wanted to throw incriminating evidence out of the apartment, cf. United States v. Keltner, 147 F.3d 662, 670-71 (8th Cir. 1998), and by testimony of Sharon Parker (itself hearsay, but admissible on the issue of the admissibility of Heard's affidavit, Fed. R. Evid. 104(a)) that Heard had had more than one packet of cocaine with him, though only one was found in the room, suggesting that at least one other had made it out the window. The government does not deny that Heard broke the window when he heard the police enter the apartment. According to the police, he did not succeed in throwing any crack out the window; the crack fell on the floor. But it was merely their word against his and Parker's. Although one officer testified that the crack allegedly thrown by Amerson was found at the front of the apartment, another officer, the evidence custodian, placed it only about 19 feet in a straight line from the window in the back bedroom; Heard could have hurled it that far. It is apparent from the majority opinion that my colleagues credit the police testimony over that of the criminals; but that is not our job; the issue is the admissibility, not the weight, of Heard's affidavit.

   Turning to the critical issue (emphasized for example in our recent Fishman opinion) of motive, I point out that no reason has been given why Heard, whose affidavit could be used to convict him of possession with intent to distribute of almost five times as much crack cocaine as the police claim that he had, would admit to that possession if it were untrue. Even if the increment in the amount possessed would not affect his sentence (an issue not discussed by the parties), it would ice the case against him, since it is a confession, which is stronger evidence than the word of the police. And even if he refused to repeat his admission at his trial, on Fifth Amendment grounds, his affidavit, which is sworn, could be used to convict him. So his statement exculpating Amerson was really and substantially against his penal interest. There is no indication that he and Amerson are friends or relatives, or that he gave the affidavit in response to a threat, or that he was paid for it, or that he would rather gum up the works of the criminal justice system than minimize his own chances of being locked up for the next 15 years, or that he was trying to curry favor with the police or prosecutors, or that he wished to distance himself from Amerson, even at the cost of taking all the blame himself, in order to avoid being charged with conspiracy. Cf. Williamson v. United States, 512 U.S. 594, 603, (1994).

   Before ruling Heard's affidavit inadmissible, the district judge should have explored the circumstances surrounding its creation. On the present, incomplete record, Heard's affidavit seems about as trustworthy as other forms of hearsay that are admitted under one or more of the multitudinous exceptions to the hearsay rule. The district judge thought otherwise, but as he did not explain his thinking process, and specifically did not point to anything in the record that might support his conclusion, we should not give it controlling weight. District judges are granted a wide discretion in ruling on issues of evidence, but deferential does not mean abject--appellate courts do sometimes reverse rulings on evidence, see, e.g., Old Chief v. United States, 519 U.S. 172, (1997); United States v. Nagib, supra, 56 F.3d at 805; United States v. Garcia, supra, 986 F.2d at 1142; Tanner v. Westbrook, 174 F.3d 542, at *6- *7 (5th Cir. 1999); United States v. Brooks, 145 F.3d 446, 454-55 (1st Cir. 1998); Gregg v. Allstate Ins. Co., 126 F.3d 1080, 1082 (8th Cir. 1997)--and deference is never properly given to rulings the grounds of which are not explained, Foman v. Davis, 371 U.S. 178, 182, (1962); Carr v. O'Leary, 167 F.3d 1124, 1127 (7th Cir. 1999); PMC v. Sherwin-Williams Co., 151 F.3d 610, 620 (7th Cir. 1998); United States 693 v. Beasley, 809 F.2d 1273 (7th Cir. 1987), unless the grounds are obvious.

   Without Heard's affidavit, it was Amerson's word against that of three police officers. These are long odds, since Amerson had a criminal record that could be used to impeach his credibility. Heard's affidavit would have shortened the odds a bit. A person who is trying to avoid a 15-year sentence is entitled to that bit. It is not unknown for police to lie in order to get a conviction. See, e.g., Myron W. Orfield, Jr., Comment, "The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers," 54 U. Chi. L. Rev. 1016 (1987). It is not uncommon for police to make a mistake. They may have made one here. (For that matter, they may have lied.) It may have been dark when they opened the door to Amerson (it was night, and whether the motion-detector light with which the building was equipped was on or off is hotly contested) and they may have mistaken an excited gesture with empty hands for the throwing of a package of crack no bigger than a golf ball. The veracity of the police testimony is undermined by the prosecutor's insistence (based on I know not what) that Amerson carried the crack in his hand from his car, which he had parked on the street in front of the apartment building. I should think it more likely that a crack dealer would carry the package of crack in his pocket (if as in this case it would fit in a pocket) until he got inside the house, rather than risk being seen with it in his hand, or dropping it, or not having the free use of both his hands.

   Even though the exclusion of Heard's affidavit put Amerson way behind the eight ball, the prosecutor was sufficiently nervous that in closing argument he asked the jury to believe the police over Amerson because "What you've got here are vice and narcotics officers--experienced drug enforcement officers whose job is to arrest dope peddlers. . . . Those officers all indicated that it was part of their duties to rid our streets of cocaine." The judge sustained the defendant's objections to these statements, and I don't think he was required to do more. E.g., United States v. Owens, 145 F.3d 923, 929 (7th Cir. 1998); United States v. Richardson, 130 F.3d 765, 779 (7th Cir. 1997). But at the oral argument of the appeal the prosecutor admitted to us that he considers police testimony to be presumptively credible, and there is little doubt that this was the message that the quoted statements conveyed to the jury. This innuendo, which has the effect of asking the jury to believe the police just because they are the police, highlights the importance of allowing Amerson to use Heard's affidavit to redress if only slightly the balance of believability between him and the police in the eyes of the jury. I think it is possible that he would have been acquitted had the affidavit been admitted; I even think it is possible, albeit not highly likely, that he is not guilty, that he is a victim of police fabrication or error. If as I believe it was error to exclude Heard's affidavit, it was reversible error and he is entitled to a new trial. The government does not even argue harmless error.