United States v. Tracy Conley
875 F.3d 391
| 7th Cir. | 2017Background
- FBI/ATF conducted a fictitious "stash house" sting in which an undercover agent posed as a drug employee claiming a garage contained 50 kg of cocaine guarded by armed men; ringleader Myreon Flowers recruited others to plan a robbery.
- Tracy Conley was recruited by co-defendants (several layers removed from the undercover agent), attended a basement meeting, later donned blue gloves, entered a work van, transferred to an undercover agent’s van, and was arrested before any robbery occurred.
- Law enforcement recovered walkie-talkies and a toolbox containing three loaded guns from the van; Conley’s fingerprints were not on the guns or toolbox. Conley made a post-arrest statement admitting he attended the basement meeting but claimed he believed it was for a job or was joking about the gloves.
- A jury convicted Conley of: conspiracy to possess with intent to distribute >5 kg cocaine (21 U.S.C. §846/§841), attempt, possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. §924(c)), and being a felon in possession (18 U.S.C. §922(g)(1)).
- Conley moved for acquittal or a new trial arguing insufficient evidence and unreliable cooperator (Trapp) testimony; the district court denied relief and sentenced Conley to 180 months (120 concurrent + 60 consecutive).
- On appeal the Seventh Circuit affirmed, finding the evidence sufficient (crediting corroborated cooperator testimony and circumstantial proof of participation) and rejecting entrapment and derivative-entrapment defenses.
Issues
| Issue | Plaintiff's Argument (U.S.) | Defendant's Argument (Conley) | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy/attempt | Trapp’s testimony, corroborating phone/location records, Conley’s presence at meeting, gloves/van entry, and post-arrest admission show knowing agreement and substantial step | Evidence was thin and largely dependent on an incentivized cooperator; acts do not prove Conley knowingly joined or attempted the robbery | Affirmed: evidence (corroborated cooperator testimony + circumstantial acts) was sufficient for conspiracy and attempt |
| Sufficiency for §924(c) possession in furtherance | Participation in planning that contemplated armed guards, presence in cramped van with moved guns, and role in conspiracy support constructive possession/ Pinkerton/aiding-and-abetting liability | No direct evidence Conley handled or possessed any firearm; fingerprints absent; circumstantial showing insufficient for possession | Affirmed: although direct possession evidence was weak, Pinkerton and aiding-and-abetting theories supported §924(c) liability |
| Sufficiency for §922(g) felon-in-possession | As a conspirator who knew confederates would bring guns, Conley is accountable under shared-conspiracy liability and aiding-and-abetting | Must show possession by Conley; conspiracy alone is not enough to satisfy possession element | Affirmed: court applied Pinkerton/Newman and Rosemond principles to hold Conley liable as accountable for confederates’ firearm possession |
| Entrapment / derivative entrapment | Government argues entrapment inapplicable because private intermediaries recruited Conley, not the government directly | Conley claims entitlement to entrapment defense because the undercover agent entrapped upstream actors who recruited him (derivative entrapment) | Rejected: entrapment defense inapplicable absent government recruitment of defendant; derivative entrapment unavailable here because Conley was multiple degrees removed from the undercover agent |
Key Cases Cited
- United States v. Longstreet, 567 F.3d 911 (7th Cir. 2008) (standard for reviewing sufficiency of evidence after jury verdict)
- United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (entrapment doctrine and limits on government inducement)
- United States v. Salinas, 763 F.3d 869 (7th Cir. 2014) (elements of conspiracy under §846)
- Pinkerton v. United States, 328 U.S. 640 (1946) (co-conspirator liability for reasonably foreseeable acts in furtherance of conspiracy)
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (aider-and-abettor liability and knowledge requirement for firearm use in drug offenses)
- United States v. Newman, 755 F.3d 543 (7th Cir. 2014) (application of conspiracy liability to possession offenses)
- United States v. Adams, 789 F.3d 713 (7th Cir. 2015) (Pinkerton application to conspirator liability)
- United States v. Jones, 872 F.3d 483 (7th Cir. 2017) (constructive possession and dominion/control standard)