United States v. Jones
2017 U.S. App. LEXIS 18204
| 7th Cir. | 2017Background
- In Dec 2013–Mar 2014 ATF, using a confidential informant (Cl) and Agent Labno posing as a dealer, arranged multiple controlled crack purchases and negotiated a guns-for-drugs deal with Toby Jones. Toby instructed Wesley Fields to purchase a Glock for six “jabs” of crack; Fields was arrested at the exchange.
- After Fields’s arrest Toby and his brother Kelsey made repeated calls and texts seeking Fields and the Cl; over a week they attempted to locate and kill the Cl, producing two shootings: Barlow (Mar 27) and the Cl/Mark (Apr 2). Mario Whitfield drove the getaway vehicle for the Apr 2 shooting.
- Toby pleaded guilty to several drug counts, was convicted at bench trial on related counts (including 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a drug trafficking offense), and sentenced to 40 years. He appealed sufficiency of § 924(c) proof and denial of suppression of Barlow’s ID.
- Kelsey was tried by jury, convicted on drug conspiracy, attempted/ conspiracy-to-retaliate (18 U.S.C. § 1513), and § 924(c) counts related to the Apr 2 shooting; he was sentenced to 35 years and appealed sufficiency and two sentencing enhancements (obstruction under U.S.S.G. § 3C1.1 and serious bodily injury under U.S.S.G. § 2A2.1(b)(1)(B)).
- Whitfield (getaway driver) was convicted as accessory after the fact; counsel filed an Anders brief and the court dismissed his appeal as frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Toby’s § 924(c) conviction (possession in furtherance of drug trafficking) | Gov: Toby constructively possessed the Glock via Fields and obtained it in exchange for drugs, so possession furthered drug distribution | Toby: Insufficient proof he possessed the gun and insufficient proof possession was "in furtherance"; ambiguity which gun was bought with drugs | Affirmed — constructive possession established (Toby directed Fields, provided drugs/cash, expected delivery); receiving gun for drugs satisfies in-furtherance element (Doody) |
| Suppression of Barlow’s photo identification of Toby | Toby: ID procedure unduly suggestive (same photo used twice, stacked photos, delay between procedures) | Gov: Procedure showed same six-photo array twice; multiple reliable identifications and corroborating factors | Affirmed — procedure not unduly suggestive; reliability factors overcome any suggestiveness; suppression not required |
| Sufficiency of evidence that Kelsey shot the Cl and had retaliatory intent (Counts under §1513 and §924(c)) | Gov: Eyewitness IDs, prior conduct (inquiries about Cl, prior mistaken shooting), phone records, visits to building support shooter identity and retaliatory intent | Kelsey: Challenges witness credibility and intent; argues insufficient proof he was shooter or intended retaliation | Affirmed — jury crediting of eyewitnesses and contextual evidence supports convictions for attempted/ conspiracy-to-retaliate and related §924(c) counts |
| Sentencing enhancements to Kelsey: (1) obstruction (§3C1.1) for perjury; (2) +2 for serious bodily injury (§2A2.1(b)(1)(B)) | Gov: Kelsey gave willfully false, materially inconsistent testimony at suppression; victims’ injuries (shoulder/jaw wound and scalp laceration requiring stapling) caused extreme pain/medical treatment | Kelsey: Testimony not willful perjury (memory lapse); injuries not "serious bodily injury" because short hospital stays | Affirmed — district court found willful, material inconsistencies (supporting §3C1.1) and credible testimony/photos showing serious bodily injuries (preponderance standard) |
Key Cases Cited
- United States v. Resnick, 823 F.3d 888 (7th Cir.) (standard for viewing evidence in light most favorable to prosecution)
- United States v. Moshiri, 858 F.3d 1077 (7th Cir.) (review standard for sufficiency challenges)
- United States v. Doody, 600 F.3d 752 (7th Cir.) (holding receipt of a gun for drugs satisfies possession "in furtherance" element)
- United States v. Schmitt, 770 F.3d 524 (7th Cir.) (definition of constructive possession)
- United States v. Katz, 582 F.3d 749 (7th Cir.) (constructive possession requires power and intent to exercise dominion/control)
- United States v. Sanders, 708 F.3d 976 (7th Cir.) (two-prong test for suggestive ID procedures and reliability inquiry)
- Perry v. New Hampshire, 565 U.S. 228 (U.S.) (due process forbids suggestive and unnecessary identification procedures; suppression only when very substantial likelihood of irreparable misidentification)
- United States v. Brown, 843 F.3d 738 (7th Cir.) (elements required to apply perjury-based §3C1.1 enhancement)
- United States v. Bogan, 267 F.3d 614 (7th Cir.) (analysis of what qualifies as serious bodily injury under the Guidelines)
- United States v. Griffin, 684 F.3d 691 (7th Cir.) (discusses photo lineup issues and admissibility concerns)