United States v. Donna A. Hatchett

property warranty deed signatures Never- them. purchased had he the Harts letters theless, Alpha mailed after the time some September reviewed Weber 1989 when

summer had seen Moreover, if Weber even file. Village that the not mean letters, would this Weber, For content. their sanctioned authority to assessor, clearly lacked Village Village policy.

set opinion

Therefore, we are liberty his Fittshur deprive

Village did occupation. his pursuing

interest

CONCLUSION reasons, judgment foregoing

For the is Affirmed. district America, STATES

UNITED

Plaintiff-Appellee, HATCHETT, Defendant- A.

Appellant.

No. 93-3487. Appeals, Court States Circuit.

Seventh April

Argued 19, 1994. Aug.

Decided Dodd, Lee H. Atty., Office of Spring-

field, (argued), IL for U.S. Noll, Jon Springfield, G. (argued), IL Donna A. Hatchett. POSNER, Before Judge, Chief COFFEY FLAUM, Judges. Circuit

COFFEY, Judge. Circuit August On Donna Hatchett and daughter Felicia were indicted on charges stemming from three sales of crack cocaine made to an undercover officer inside the Hatchetts’ residence at 1011 South 16th Street, Springfield, I, II, Illinois. Counts and III alleged Felicia knowingly distributed mixtures or containing base, substances in viola- tion of 21 § 841(a)(1), U.S.C. while Count IV charged possessed Felicia cocaine with intent distribute, violation 841(a)(1). § Donna was named Count II indictment, that she knowingly aided daughter Feli- cia in the base, distribution of cocaine 841(a)(1) § violation of 18 U.S.C. Felicia pled guilty to the four charges and prison received a totalling sixty term months. plea entered a of not guilty to Count II and was convicted jury of aiding her the distribution of 1.1 coke, taking into account her history criminal and her unbelievable trial testimony, received a sentence of 123 imprisonment months’ years and five of su- pervised release. The court imposed also special assessment of We $50. affirm. affidavit Tupy prepared Attorney Ken FACTS sur- recounting circumstances the facts informant confidential Covington, a Jerry that eve- drug buys earlier rounding the two Police, testified State Illinois working for the presented affidavit ning. Latham 27, 1992, trial that at Hatchett’s for, a search and received applied judge, Nar- Special Police Illinois State he informed drugs, residence the Hatchett warrant for (Coving- he that Latham Brian Agent cotics Latham cash, drug paraphernalia. and guns, purchase ton) arrangements made had prior the execution that further stated stated Covington from Felicia. cocaine crack warrant, he returned to the search 6:30 approximately day, at that later that night, that and time for a third residence (under- Agent Latham Special he and p.m., Felicia, another who sold him encountered (Don- cover) the defendant’s met Felicia after A time the short grams of crack. 0.4 Springfield, in na’s) residence and Felicia’s Police transaction, State the Illinois third defendant’s the Covington told Illinois. resi- at Donna’s the search warrant executed (Felicia) wished Latham that Jones, in the assisted who Officer dence. ounce crack of an a sixteenth purchase entering the search, after that stated accept- Felicia that Covington testified $100. and a bathroom Felicia enter he observed recorded), left (serial numbers money ed the room, shortly that living and the return to grams of 0.9 room, with returned and the baggies in the two he retrieved thereafter it cocaine, Latham. handed and crack 10.8 containing weighing cocaine toilet bowl departed. then Covington and Agent Latham stated Felicia Upon questioning, grams. it down the flush attempted to had that she Testimony Latham’s Agent that she Frick testified Kim toilet. Officer approximate- testified that Latham Officer daughter Felicia her and searched Covington returned he and later ly hour one currency in Felicia’s $1,072 in and found more purchase residence Hatchett to the paid out bills the recorded (including pockets the they encountered this time drugs, but nothing transactions), but found in the earlier mother) (Felicia’s Donna Hatchett defendant person. fur- Latham Agent Special kitchen. and Covington greeted her stated ther Testimony Hatchett’s Felicia Donna, “shopping.”1 that Latham said the meaning of obviously defense, familiar for the Hatchett testified Felicia I can “I’ll see what replied, “shopping,” trial, term she was the time that at and stated handed that he stated Latham selling do.” old, had been and years nineteen purchase bills prerecorded $100 to her a half year and a drugs for and the room left defendant drugs. The drugs never sold she Felicia claimed arrest. living room. hallway into down walked on Janu- and that presence in her mother’s premises might exit Fearing that not her mother she it and ary money or deliv- returning the either without Latham. Officer accepted $100 who proceeded Latham drugs, Officer ering the jury that her to persuade Felicia tried Don- hallway observed and steps into activity, few nothing of her mother knew A daughter Felicia. to her hand the $100 na likely jury most disbelieved claim the kitchen later, entered Felicia (1) time short been had she that: testified Felicia also grams of crack cocaine. gave Latham lived in with she the house drugs from selling Latham, stated Felicia Agent According to one-half past one and for the her mother he to sell more coke had marijuana (2) smoked had years; she Covington needed more. if he return (3) should “some- [Felicia] she presence; mother’s departed. Latham on her supply of crack times” left (4) occasionally view, and headboard, plain after Latham testified Agent Special sit- cocaine] just [rocks leave “would she State Illinois he and transaction the second knowledgeable using term are by drug deal- term used "Shopping” is a street pur- lexicon. referring interest culture to one's and users ers persons demonstrates chasing ting out” when she was not at home for Larry stand, Stelivan to the who stated he customers, convenience of her who would had interviewed Donna at her home re- take money. the cocaine and leave sponse phone to her Contradicting call. testimony, Stelivan testified that Donna’s call addition, Felicia stated “due to the disturbance, was about a domestic and that business[,]” nature of [her] there were “a interview, Donna never made -people going number in and out of’ “reference drug transaction involving house, and that on night question, Felicia Hatchett.” (al- had made or six” cocaine sales “five though she was charged pled with and Donna also testified that she out moved sales). guilty to three said it her for a period residence short of time from practice common for her customers to come 18,1991 November to mid-January of 1992 to back purchase “often” to drugs, more and get away from daughter’s her drug dealing. “possibl[e]” that it was that pres- Donna was She testified that she returned to her house during ent “some” of evening’s transac- in Springfield in mid-January after she was Finally, tions. Felicia previ- testified that assured Felicia that there longer was no ous occasions accepted Donna had money any drug dealing going on at her home. (Felicia’s) her acquaintances when she from Donna stated although that she knew her present, was not and thereafter Donna deliv- daughter had sold drugs past and that ered the money her. In to an effort to she had “seen or in presence been Felicia’s protect mother, her Felicia also testified that when [Felicia smoking marijuana,” had] been her mother had no knowledge of what the she 1992, believed that January as of Felicia really for, money was stating giv- that those had stopped. Contradicting herself, Donna ing money to Donna say they would testified that she “had suspicions” that Feli- “owed this to Felicia.” testimony Felicia’s cia was dealing drugs because “[s]ome of the that Donna was drug oblivious to the activity people coming that were to the house were in house implausible given Felicia’s known addicts, to me drug as just and not testimony (Felicia) left crack cocaine necessarily [Felicia’s].” Donna friends of plain in view for her who customers would also collecting admitted money “drug from house, enter Donna’s take the cocaine and addicts” turning and it over to Felicia. money. leave Donna further testified that she did not Donna Hatchett’s Testimony see daughter her with crack cocaine on Janu- 27, ary trial, At because she was Donna across Hatchett testified that she street in another “major had problem had house times ... with illegal evening. drugs,” She also specifically stated that heroin, she did and and participate she in displayed nor scars assist in on her arms and Felicia’s hands to drug jury that sales. Donna specifically were injection caused denied that drugs. accepted those she She in from past $100 stated that Officer Latham or she had that she gave committed burglaries to prostitution daughter, $100 her to but money above, obtain habit, stated drug her admitted that past crimes for which she imprisoned. had when Felicia been was absent from defen- the premises dant testified that she had following occasionally accepted her money release from from prison especially daughter’s acquaintances. after the 1991 These “ac- drug-related son, quaintances” Alfonzo, murder of her are she people same Donna “totally was against drugs.” drug identified as As evidence of addicts who would leave newly anti-drug stance, money Felicia, discovered Don- claiming they that owed na that on November money. Felicia knew Donna that ad- two arrest, months to this she dicts arriving called were at her claiming home police and reported that money “Felicia was “owe” Donna, to Felicia. in collecting selling dope and that she [Donna] believed this money addicts, from these that the furniture in the thereby stolen assisting in the distri- prosecutors furniture.” The called Officer bution and sale of crack cocaine. Attorney Assistant testimony, peal.) The earlier Felicia’s opposition of the Donna as had referred to that Felicia she knew “facilitator” stated deserved a sentence drug operation she time and drugs for some selling been sentencing range. January the middle even late recognized report’s recom- presentence Upon objected re- support. no means had Felicia grams of concerning the 10.8 January of early mendation Springfield turning nothing do she had crack, still arguing there was admitted therefore cocaine and “it still— that amount of the house: through traffic for it. She be it would held accountable prosecutor] you should not [the probably accept- however, also already stated that she people.” had, She amount an excessive gave it to remem- addicts although money couldn’t ed admitted January, while, that Feli- people Donna knew money from taking Felicia. All ber money to have lent position she did. no cia was in possible” “[i]t’s sentencing hear- Judge at the anyone. The believe testimony that she was re- holding that Donna disagreed, dealing drugs in § 1B1.3 grams under sponsible for dis- Because unbelievable. is at best course part the “was same because it of of in all jury the testimony, crepancy in her ojfense the scheme as common conduct or of found her as it Donna disbelieved probability ” expressly sentencing judge The conviction. aiding in the distribution knowingly of guilty directly defendant] [the “she found that cocaine. of The transactions].”3 [the one of involved in two levels the base level increased court then Report The Presentence the justice, giving defen- of for obstruction rec- report it was presentence In Donna’s on of 26. Based level base dant final § 1B1.3 to U.S.S.G. pursuant ommended IV, the history of category criminal cocaine the crack responsible for held she be of to 123 months sentenced Donna court (1.1 grams) II in Count transaction from the applica- the fell within which imprisonment, (10.8 which grams) cocaine for the crack months, years of five 110 to 137 range of ble possess- guilty to pled daughter Felicia release, and ordered supervised highly on her IV. Based ing under Count does of special $50. assessment pay a including claim testimony, trial suspect sentence enhance- two-level challenge the trafficking, opposed justice. of for obstruction ment Feli- police about the had informed par- she did not dealing, and that cia’s ISSUES Agent La- in the transaction ticipate rea- several sets forth appeal On recommended tham,2 report presentence the conviction, the or in of her sons for reversal be increased level offense Donna’s base 1) sentence: of her (U.S.S.G. a reduction alternative justice of for obstruction two levels support is sufficient the evidence challenge the Whether 8C1.1). (Donna does § aiding II for Count under conviction ap- Donna’s justice enhancement obstruction counseled, abetted, aided, committed, sions U.S. Pro- cooperate with the Donna refused 2. induced, willfully commanded, procured, or refusing by to comment Officer bation U.S.S.G. by defendant offense. the instant with the caused involvement part that lB1.3(a)(2), states further § approved of sentencing judge relied on 3. The be determined shall also offense level the base report which stated: presentence the part the that were by and omissions all acts to hold decision Officer’s U.S. "This Probation or scheme or common of conduct same course grams for the accountable defendant the As the 10.8 of conviction. plan offense as the offi- by law enforcement cocaine recovered the were found in grams crack cocaine executing a their during course of cers five approximately hours residence defendant's residence at the defendant’s warrant search in a crack participated defendant after the conduct reviewing relevant stems transaction, holds relevant § Fur- IB U.S.S.G. 1.3. guideline at as found Lastly, rele- this amount. her accountable 1B1.3(a)(1)(A) thermore, states U.S.S.G. not the applicable whether is vant conduct determined level is the base offense conspiracy.” charged with defendant omis- all acts and taking such into account of 1.1 distribution of crack When reviewing challenges to the suffi 2) cocaine; whether the court properly ciency held supporting conviction, evidence the defendant accountable for we the 10.8 consider the presented evidence at trial of coke recovered from during light home most govern favorable 3) search; ment; if whether Donna was de- conclude that rational nied a fair trial court’s trier fact com- could have found that errors, mission of essential certain elements of prov described below. crime were beyond

en doubt, a reasonable we will reject sufficiency defendant’s chal DISCUSSION lenge. Virginia, Jackson v. 443 U.S. I. Sufficiency the Evidence 2781, 2789, S.Ct. 61 L.Ed.2d 560 . (1979) Donna contends that the present- Id. emphasized We ed at trial is support insufficient that: jury’s guilty verdict that she reviewing aided in the weighs distribu- neither tion of crack cocaine. argues evidence nor She assesses credibility that Cov- ington’s testimony witnesses, “even unreliable when the evidence at trial while acting ‘totally he as a uncorroborated and informant for comes from liar, felon, Illinois State an admitted Police and purchasing large- convicted drugs government’s drug-dealing, scale paid government with the money, ap- he infor propriated mant’[.]” some of the United States v. personal Beverly, for his (7th Cir.1990), denied, use. She claims that at trial Covington cert. testi- fied that he was not 111 S.Ct. who sure handed L.Ed.2d (1991) (citing coke Latham States v. Molina the second ro, transaction, 1341, (7th Cir.1989)). 817 F.2d but to trial he 1347 stated that it gave Donna Hatchett who drugs Id. at 1397-98. agent. Donna challenges Special also respect With to the defendant’s conten- Agent Latham’s testimony, arguing that “it tions that Covington Agent witnesses and flies reality” face of Latham, in'the an Latham credible, were not we note that: experienced officer, narcotics would be questions Because credibility solely are “sneaking hallways down peeking and around fact, for the trier of such arguments are corners” he when was unfamiliar with the “wasted on an appellate court.” United knowing and not present who else was Ruiz, 1174, (7th States v. 932 F.2d 1178 in the house. She also Agent contends that Cir.1991) (quoting United v. States Moli Latham’s trial testimony was inconsistent naro, 1341, (7th 877 Cir.1989)). F.2d 1347 with the testimony given in his search war- It is the trier of fact who “has the best affidavit, rant noting that the officer’s search ‘opportunity to observe the verbal and non warrant affidavit did not refer to the fact verbal behavior of the focusing witnesses that he walked a few steps hallway down the subject’s on the responses reactions and peeked and living into the room. Finally, interrogatories, their expres facial she notes trial Latham testified that sions, attitudes, voice, tone eye contact, he “remember[ed that gold Felicia] had posture body and movements’ as well as teeth” but that reality does confused speech or nervous patterns have gold teeth. contrast merely with looking at the cold pages of an appellate record.” United Standard Review Duarte, 644, (7th States v. 651 Cir.1993). stated,

As this court has often “[i]t is not the function of this [appellate] court to Marin, re- (7th 679, United States v. 688 — weigh the evidence or to substitute judg- Cir.1993), its denied, cert. -, ment for that of the trier fact.” (1994). United S.Ct. 126 L.Ed.2d 702 In addi States v. (7th tion, Wisniewski assessment a credibility witness’s Cir.1984). Davis, v. States 15 “is a inherently matter province within the (7th F.3d 1393 Cir.1994), we stated: jury, extraordinary ‘absent circum- his state in Agent Latham since reevaluate stances,’ will this that he followed affidavit supporting his or to determine testimony of a witness hallway, he must have steps down the few possible measures other her motives impli- in order to story at trial fabricated Dunigan, 884 v. States reliability.” United dealing. The drug defen- in the cate Cir.1989) (citing United (7th 1010, 1013 F.2d because there is irrelevant argument dant’s Garner, F.2d States each state an officer requirement is no Cir.1987)). suspected crime regarding a every detail theory that disagree with We warrant. See for a search in his affidavit to convict insufficient McNeese, case, counsel Hatchett’s In this II. Count (“Nor Cir.1990) [in omission bringing to the Covington, cross-examined if, in con- affidavit] material search warrant history of Covington’s jury’s attention was of such minimal text, the information state allegedly inconsistent his abuse not rea- could its omission significance that Coving- brought out that It was also ments. judg- magistrate’s sonably affected have using some personally ton was search”). finding probable cause ment stings, purchased that he case, trial Latham’s Thus, Officer in this of Cov- money. issues These government’s Donna hand testimony he observed to the presented credibility were ington’s simply no less reliable money Felicia is weigh and opportunity had full jury who that he took mention failed he not re will credibility. We determine his hallway the warrant steps down the few Secondly, jury’s determination. weigh the two affidavit, the first detañed testi Agent Latham’s Special not view we do transactions. steps” “a few Hatchett followed mony that he La- attack Officer Finally, Hatchett’s pass and witnessed hallway down the testimony Fe- allegedly mistaken tham’s “fly money to her night of on the gold teeth” licia “had We has claimed. reality,” as face because whether unpersuasive allegation as an argument interpret Donna’s gold about mistaken Agent Latham incredi testimony was Latham’s Agent credibility goes to his recollection teeth be incredible “To of law. as a matter ble credibility witness, any question of aas testimony must law, witness’s the a matter In this case of fact. the trier is a matter United States its on face.” be unbelievable jury to alone jury and the the was for it Cir. F.2d Wyhe, 965 v. Van the Even if credibility determinations. make took a 1992). the officer testimony that The testimony that Latham’s jurors disbelieved get a hallway in order the steps down few teeth, they could—and gold still Felicia had defendant, even in a view better that Donna obviously must have —believed before, not “unbe only once visited he had each doubt beyond a reasonable guilty Latham testi its face.” Officer on lievable II. We reiterate of Count every element just “a few Hatchett he followed fied that credibility are questions that “[b]ecause Donna that was concerned he steps” because fact, arguments such the trier solely for either deliver without the house might leave Marin, court’.” appellate on are ‘wasted The returning the $100. the Latham both Covington and at 688. 7 F.3d credi assess the opportunity jury had the home they went testified that respective bility Latham’s the 27, 1992, met Donna in January We obviously him. believed testimony and Covington told informant The kitchen. Agent that argument accept the refuse “shopping” and Latham that Hatchett as a mat testimony was incredible Latham’s purchase the Donna $100 Latham handed ter of law. see responded, “I’ll drugs. Donna the room. Con- do,” the and left La- can Agent I that what Donna maintains the might exit the defendant it is in that cerned testimony is unreliable tham’s completing the money without house with he submitted the affidavit conflict several “took deal, Latham drug Officer warrant search for the application in his peeked into hañway and steps into claims defendant 1992. The room,” living and witnessed Donna appeal, defendant, Hatchett On Hatchett, Donna money just hand the received to her contends that the court in holding erred her daughter, later, Felicia. A short time Felicia accountable under U.S.S.G. 1B1.3 for the entered the kitchen and delivered 1.1 of cocaine base in found her toilet of “crack” to Latham. Donna was an active bowl the search of her residence. participant in deal support in argument Count argues her indictment, II of the accepting given she was not $100 involved with the first and third by Special her for coke Agent Latham and transactions that occurred her house handing daughter, it over to By her evening, Felicia. on that and relies on the fact that acting as a willing buyer she, facilitator for a and Felicia mother, stated that and not her seller, willing responsible aided distribu for the cocaine found in the tion of “The cocaine. Government is not toilet. Donna argues further gov- required prove partic defendant’s supported ernment position when the ipation every phase offense, but Assistant Attorney remarked must show that the willfully defendant sentencing hearing that, appar- “It’s [herjself ent, associated think, with the criminal enter I from the evidence that’s been prise and presented, contributed to its success.” United daughter, Harris, States v. Hatchett, primary person was the involved in Cir.1983). trafficking, and that Defendant was more of a facilitator.”

After review of the trial record we remain convinced presented the evidence 1. Standard more than sufficient for a Review jury rational beyond conclude a reasonable doubt The standard of review this case knowingly Hatchett aided the dis- places heavy burden on the defendant. tribution of agree cocaine. We with the dis- government The prove must the relevant judge’s trict observation that there was suffi- sentencing factors under Sentencing cient evidence to link Donna to the same preponderance Guidelines of the evi course of the distribution of 11.9 Cotts, dence. United States v. eocaine, therefore, of crack reject (7th Cir.1994); Hamm, United States v. sufficiency defendant’s of the evidence 1126, 1129(7th Cir.1994). The factu argument. findings al of the district court will not be they overturned unless clearly erroneous, are II. Sentencing while interpretation Sentencing presentence report recommended and subject Guidelines is to de novo review. sentencing judge determined that Don- United Lozoya-Morales, States v. na’s base (7th offense level was 26 based Cir.1991). on the Thus, 1218 we will re finding pursuant court’s § to U.S.S.G. 1B1.3 verse the district court’s as conclusion to the responsible Hatchett was for a quantity total of of cocaine attributed to the defen (1.1 grams 11.9 grams cocaine base only dant if we have a definite' and firm

the second transaction and the 10.8 conviction that the district court made a clear discovered in Donna’s during the mistake in sentencing. United v. States Riv search). era, History With Criminal (7th Cir.1993), F.3d cert. — IV, Category of including denied, and her -, two-level U.S. 114 S.Ct. (not increase for justice obstruction of (1994); chal- L.Ed.2d 411 Goines, United States v. lenged), — Donna potential prison faced a sen- Cir.), denied, cert. ranging tence from 110 to -, 137 months. She 114 S.Ct. 126 L.Ed.2d 195 (1993). to 123 sentenced months. Because the The district court is to base its de 10.8 part were of the same course of terminations upon the evidence in the record conduct, rejected the court argument upon and its own credibility evaluations. Cotts, should be held accountable for judge’s at 305. A trial deter of cocaine involved credibility mination of must be given utmost second transaction. Hamm, appeal. deference on 13 F.3d at Analysis S. Cherry, F.2d 1129-30; States Cir.1991). 748, 758 found that sentencing court The ” “quite clear evidence Level Base Determining the ” 2. Offense in at least “directly involved Hatchett was F.2d Crawford, 991 occurred at transactions that of the three States one In United Illinois, (7th Cir.1993), court residence Springfield, this summarized Hatchett’s defendant, iswho hour time-frame holding a during for a six principles one-half judge sentencing accountable conspiracy, The a charged with of conviction: offense beyond the that the circumstances properly drugs for determined grams of crack found relating to base forth the § sets 2D1.1] “[U.S.S.G. “part of the same were Hatchett’s home offenses. for narcotics offense levels as the or common scheme of conduct course by is determined level base offense considering the When offense of conviction.” defen- drugs included amount of must, it is totality, we its determining a In conduct. relevant dant’s at the judge convinced evident the trial may level, sentencing court a base offense of the entire sentencing, after time of review quantity attribute defendant record, daughter were and her that Donna This by persons. other negotiated or sold drug drugs and intimately acquainted with either defendant was even where is true Donna, drug addict dealing a former and that of con- not convicted charged with or * * * of, facilitated herself, approved, and knew spiracy. supported dealing. This Felicia’s lB1.3(a)(2) provides § Guideline (a) all testimony: following trial That sentencing “relevant conduct” in Donna occurred drug transactions three “acts and includes may consider court liv she had been Hatchett’s where residence abetted or aided committed omissions last at least the ing with her defendant, which the or by the defen- (b) half; transactions All year three accountable, that dant otherwise would on the same case occurred to in this referred commission occurred time hour and one-half night within a six conviction.” offense (c) were and Felicia both Donna period; That (citations at 1330-31 Crawford, 991 drugs and intimately acquainted with added). omitted) (emphasis (d) meaning of the knew the dealing; told and when “shopping” lB1.3(a)(2), drug term held Relying on U.S.S.G. replied, “I’ll “shopping,” Donna Latham may be sen- defendant in Crawford (e) ob do”; Agent Latham I can see what drugs found quantity of on the tenced based the $100 over to Felicia hand served Donna or course to be “same purpose of for the given Donna had Latham plan as the or scheme common offense of (f) accept added). cocaine; assisted buying (emphasis Id. at 1331 conviction.” Feli addicts money from known acts determining a defendant’s whether money to absence, delivering the cia’s of conduct course part of the “same were (g) Felicia testified daughter; scheme,” to state went on common Crawford supply of crack left “sometimes” similar may whether consider that “the (an view, headboard, unbeliev plain transaction, on her in each involved parties were true, indi assertion, if taken able rela- temporal relationship, geographic in living Donna while cates that relationship between any other tionship and dealing); drug of Felicia’s known must have con- the relevant offense the convicted (h) both admitted Felicia Thus, were Donna and at 1331. Crawford, F.2d duct.” (i) marijuana users; had smoked drug formally charged or that is not “[e]onduct had been (j) Felicia presence; in Donna’s conviction of an element not offense half, at least year drugs selling ap- may into determination enter (the residence from Donna’s part of the time sentencing range.” guidelines plicable (k) streets); comment, (em- on the of the time rest 1.3, (backg’d.) § IB U.S.S.G. em- in school nor was neither knew Felicia added). phasis ployed position and was in no lending to be police called the to turn her in for (l) others; money to drugs Felicia sold “selling dope,” from responding officer who 1992; Donna’s January residence investigated complaint Donna’s spoke (m) “possibl[e]” That it was that Donna was with Donna testified that Donna never men- present during “some” of Felicia’s numerous anything tioned drug dealings. about Felicia’s drug night January transactions on the on Based the evidence the district court (n) 1992; perjury Donna committed when heard at trial sentencing, and at we conclude she testified that participate she did not in justified the court was more than (o) transaction; drug the second determining Donna stat- grams crack, the 10.8 ed that she moved out of the house No- grams combined with the 1.1 for which she period vember 1991 for a of two II, months was convicted in Count were selling drugs because Felicia was from the same course conduct or common scheme house; (p) accepted money for Felicia as the offense of Crawford, conviction. drug addicts; those she knew to (q) F.2d at 1330-31. occasionally Felicia testified that she “would We add that argument just leave sitting [rocks cocaine] out” when present was not at the first and third trans- she was not at home for the convenience of irrelevant, actions is pre- neither the her customers. sentence recommendation nor the court’s sentencing grams decision to include the 10.8 piece This final testimony, that Felicia upon were based those two transactions. drugs left out for addicts to serve them Rather, above, as stated judge sentenced selves, clearly illustrates that Felicia testified Donna to gram quantity the 11.9 on the basis in the manner in which she did in order that being responsible (1.1 of her for the crack might shield her Considering mother. grams) during distributed the second trans- high cocaine, cost of crack it is most (Count indictment) action II under the unlikely that Felicia would leave the the 10.8 during found the search of departed unattended when she from the her home after completion house; a reasonable inference is that Thus, sales evening. we consider drugs were left under Donna’s control to the issue of whether properly the court held money. distribute and collect point, On this responsible for 11.9 of cocaine “[j]udges we note that system, in the federal (1.1 grams base charged under II plus Count they whether are the trial or appellate home), found in her as well as system, operate vacuum, do not in a shielded to the dissent’s contention that the sentenc- from knowledge drug operations in the ing judge’s findings inadequate were and that Tolson, real world.” United States v. substantial evidence of complicity 1494, 1504 Cir.1993) (quoting Unit Felicia’s drug-dealings “virtually nonexis- Perry, ed States v. tent.” Cir.1984)). We portrayal note that Donna’s having herself as strong taken a anti-drug supports The record the district court’s totally stance was unconvincing, because on conclusion that in addition to Donna’s in- the one occasion Donna claimed II, to have volvement in participated Count Donna apparently 27, 1992, The dissent finds it inconsistent that is relevant—-and does "im- press” "unimpressed” by "placing one hand we are us—because that Donna her on the presence scene" Donna's participate did establishes that Donna evening’s in the first and third opportunity would have participate had the transactions, but on the other hand that we drug dealings. Felicia's There is a marked dif- “impressed” by presence are in the house at ference being between one not in the home and night. other times the same See dissent at participating one in a deal. While Contrary 1427-28 n. *. sugges- to the dissent's house, presence Donna’s mere standing tion, however, inconsistency. there is no Don- alone, obviously does not demonstrate that Don- non-participation na’s during Felicia’s first and participated na drug activity, in Felicia’s Donna's irrelevant, third transactions is presence at the many house is but one of the with, charged Donna was neither nor sentenced facts, below, presented discussed to the court for, any activity relating to the first and third justify the conclusion that Donna and Feli- However, drug deals. regular presence Donna's jointly enterprise cia undertook an to distribute home, including at presence Thus, her at other times cocaine. it is at all inconsistent to third, likely which, was like the first and daugh- of conduct course same the larger store of neigh- supplied from Felicia’s that she visited Donna testified ter. times, crack; temporal, geo- relying but on the also at various street across the bors out of the links the sale exactly graphic she and human between was know when many drug support- sales how district court supply, asked and the the When house. testified evening, ably the Felicia these activities were made concluded no There was six.” say five or of part “I would of the same course conduct.” absent testimony that direct opinion at 1427. We are Dissent transactions; Fe- during the other the house trial, including cir- at evidence the received present may have been licia stated evidence, extremely enlighten- cumstantial on or six transactions of the five during some that Donna was an demonstrates 27, Donna said January 1992 while joint drug dealing in a participant active any par- being there not remember could we note enterprise Initially, with Felicia. testimony is not sur- ticular time. Donna’s nothing novel about establish- “there is having as might classified for she be prising, through use of circumstantial ing a crime the Memory.’ remember She can a ‘Selective Rose, evidence,” amnesia- an may helpful but suffers what (7th Cir.1994), for law “[c]ase irrebutta- confronted with malady like when is not that ‘circumstantial evidence recites not remem- example, she did For proof. ble and, evidence, direct probative than less Jerry Covington Agent Latham and ber ” Al- more rehable.’ Id. cases is even some 27,1992 buy came to the house might piece of though individual evidence telling cocaine, clearly remembers yet she fact, this by itself be insufficient establish dealing back Felicia’s of Officer Stelivan preponderance together the considered when (an assertion of 1991 in November establishes that the evidence of made). ever was officer denies responding course part of the same of crack were grams taking mon- clearly remembered Donna also scheme as Donna’s common of of in November ey from addicts “[a]s- Inasmuch as of conviction. offense inso if she done had but couldn’t remember drugs in- of of the amount certain[ment] sentencing court’s The January of 1992. sentencing purposes in an offense volved part of the grams finding that 10.8 not be which will determination a factual no doubt based conduct was same course of error[,]” absent clear disturbed review of assessment on his firsthand supporting of amount given the vast credibility. judge’s determination the district the evi- concludes that dissent also part of 10.8 additional 1419-20, Donna, supra at against see dence as the offense course of conduct “the same dispositive scope “cannot be conviction,” court did conclude dealings[.]” Dis- Felicia’s participation in error. commit clear sent, the dissent n. *. Yet even at 1427-28 the dis- suggests further that The dissent acknowledges that sufficiently into inquire court faded trict in the distribution “Donna’s assistance “regular Donna was a of whether issue possession crack and Felicia’s jointly- Felicia” in a agent for ‘steerer’5 or distribute) (with, likely, intent to most activity, or whether she criminal undertaken found to be crack could be of 10.8 intermediary.” The “merely episodic As of conduct. part of the same course distinguish- are byon the dissent relied Donna, cases describes, indi- all majority very mem- they minor in that concern able cations, together with worked in- In the drug conspiracies.6 large evening bers sale the second consummate Copeland, States v. but not presence at consider Donna’s Colon, 1990) (2nd (quoting United States Cir. absence. denied, (2nd Cir.)), cert. (1989). 107 L.Ed.2d S.Ct. term, Steerer, is defined uses the as dissent 5. " dissent, buyers sellers in 'direct[s] what are as someone who cases In the cited drug conspir- attempt to of a members in which sellers to minor circumstances referred culpability most of acy were relieved observation.’" from casual conceal themselves 1422 ease, States, (2nd conspira- 243,

stant which does not involve a 462 F.2d Cir. 1972) cy charge, (emphasis added)); Donna was more than a minor United States v. Carden, (8th participant; 1116, Cir.1970); she was a facilitator who aided 428 F.2d daughter’s drug dealing. and assisted her see also Mahoney, United States v. (7th Cir.1988) jury’s 47, purposes That was the verdict. For (sentencing judge 49-50 sentencing, being explicitly she held accountable for need not every state fact he is sentence). drugs helped drugs to sell and the relying pass on to by stored in her home that were determined respect With to the dissent’s contention judge part the trial to be of the same course upon we have relied evidence which the Crawford, of conduct. United States v. judge specifically district rely upon, did not (7th Cir.1993). turn to the order issued the district addition, In the dissent claims that even if court and note that there are a number of inquiry the court had made such an into specific findings issued the court as to the role, very “there is little in the rec- evidence he relied on: support ord to the wider view of Donna’s drug “In eases the base offense level is complicity” and that “substantial evidence of on all based Defendant’s relevant conduct agreement join any undertaking part which was of the same course of beyond the offense of conviction itself is vir- conduct or plan common scheme or as the tually disagree. nonexistent.” We The rec- offense of conviction. See U.S.S.G. replete ord is with evidence that Donna knew lB1.3(a)(2). finds, If the Court there- daughter’s of and facilitated deal- fore, that grams of cocaine base ing. multiple The accepting instances plan common scheme or as money, coupled with the inconsistent and the offense of conviction the base offense incriminating testimony, trial are evidence of properly level must reflect find- guilt. ing. case, ... In the instant the same The dissent states that this court parties has “col- were involved in all three transac- ” upon lected circumstantial ‘evidence’ January tions. On agent B. La- specifically rely district tham of the Illinois State Police made holding responsible when separate purchases the addi- three of cocaine base tional 10.8 of crack. As a court of from the Defendant’s house. Defendant’s review we are Felicia, entitled to comb the daughter, record to involved all three justice. determine the facts in our search for directly transactions. Defendant was in- Moreover, judge the district court is not volved with one the transactions. The required every to recite each and geographic estab- relationship all the sales fact trial, lished at but so much as is neces- is obvious. All three transactions oc- sary support aggra- conviction and the Street, curred at 1011 Spring- South 16th vating mitigating circumstances in sen- house, field Illinois. The owner of the tencing. “While it is judge Kerr, true that a trial James states that on generally obligated give reasons for 1992 the house was rented to the Defen- imposition particular sentence, of a it is dant. temporal relationship The necessary, advisable, always sometimes very strong. sales is The first sale oc- Harris, to do so.” United States v. approximately curred at p.m. 6:00 Cir.1977) 374-75 (citing McGee v. third sale occurred at approximately 11:55 Mitchell, conspiracy in the 1992) their roles did not rise 460-61 Cir. participation to the level of of the F.2d as the other members (holding a low attempted level dealer who conspiracy. Mojica, United States v. to sell 26 of cocaine was not liable for the (7th Cir.1993) (holding 1445-46 kilograms conspiracy ultimately dis single a lookout at a aborted sale of 249 tributed). distinguishable These cases are sufficiently of cocaine was not associated the instant case in which Donna Hatchett was conspiracy justify sentencing with the based fact, participant. not a "minor” the evidence kilograms, especially light of the fact reveals that she admitted that she was aware of that there was no evidence that the defendant drug dealing Felicia's and she was an active participate would conspiracy continue to in the participant enterprise. transaction); beyond single United States v. 1.3(a)(2), § IB ref executed, activity. (Citing U.S.S.G. warrant The search p.m. (a)(1)(B)). support of erencing subsection grams of the 10.8 in resulting the seizure contends that “there position, the dissent its a.m. approximately 12:15 at question, support to the wider little the record and the the sales 1992. Thus “sub complicity” and that of Donna’s view house subsequent search of Defendant’s agreement of Donna’s stantial evidence hour and within six occurred half beyond join any undertaking the offense supports a The evidence period.... find- virtually nonexistent.” conviction itself base grams ing that agree is no direct evi we that there While the search warrant pursuant seized that, physically example, dence as same course involved disputed 10.8 handled or observed the Accordingly, conviction. offense base, overwhelming cir there is of cocaine properly level was base offense Defendants incriminating testi cumstantial evidence and as 26.” calculated herein, fully mony, forth that Donna was set added). (Emphasis of, actively approved, on occasion aware trial testimony presented, the Through drug dealings. stated As facilitated Felicia’s well-acquainted obviously judge, who was above, not less “circumstantial evidence is opportu- had the Donna’s activities with evidence, and, in some probative than direct before demeanor nity assess the witnesses’ ” Rose, 12 F.3d cases is even more reliable. sentence, obviously believed imposing added); (emphasis see also United at 1417 ‘episodic intermedi- than more Donna was Ludwig, States participant, as the ary’ not a one-time Cir.1990) (“fwjhile ‘fcjommon is no sense 1B1.3, com- suggest, see seems dissent evidence, ... common sense substitute for (not- 2(c)(5)). (note at Marin See ment reasonably used to evaluate what should be ‘opportuni- fact has “the best ing that trier of evi may be circumstantial inferred from non-verbal be- ’ the verbal and ty to observe ”) added); (emphasis dence focusing the sub- of the witnesses havior Cir.1990) Balzano, interrogato- responses to ject’s reactions and only is the use (observing “‘[n]ot attitudes, ries, expressions, tone facial their permissible, but cir circumstantial evidence contact, body move- voice, posture and eye sup may the sole be cumstantial ’ speech ments,’ or nervous as well confused added). ”) (emphasis a conviction port for looking merely with patterns in contrast case, dealing Felicia was Donna knew In this record”) (citing appellate pages cold of an cocaine; addicted customers she allowed 651). Duarte, pre- The evidence 1 F.3d at house; money from she collected enter fact, conjunction with to the trier sented money claimed addicts who known may be drawn reasonable inferences Felicia was to Felicia when was “owed” therefrom, judge’s determination support the knowing that time while at the same at home crack 10.8 that the existence job nor visi daughter neither had of conduct or same course represented the and, actively as support; means of ble the offense of Donna’s scheme as common involving in the transaction sisted conviction. disagree with Agent we Latham. Thus “little” in suggestion there is dissent dissent’s Finally, we observe view of Don support wider in the record to assistance dispute that Donna’s “do[es] possession complicity Felicia’s na’s of crack of 1.1 distribution its crack, as well as with (with, grams of likely, the 10.8 most possession Felicia’s evi no substantial distribute) there is conclusion grams of crack of 10.8 intent agreed that Donna course dence part of the same found to be could beyond the activity participate criminal Instead, argues that dissent of conduct.” court ex The trial of conviction. offense accountable for the not be Donna should held took findings that Donna in its pressly stated found in her grams of crack additional conduct” as in the same “course ven- drug-trafficking Felicia’s óf must be To find error in Felicia. clear reasonably acts foreseeable were not tures sentencing court made a persuaded that the criminal jointly undertaken of a furtherance fundamental error which resulted a com events occurred within the Central miscarriage justice. plete United States v. District of Illinois.” McKenzie, Cir. McDonough, In United States v. 1991). trial, From the evidence adduced at (7th Cir.1979), proof this court noted that part on there was no error of the sen constituting of venue “is not an essential fact tencing judge application his Sen charged the offense ... and need tencing Guidelines the instant case or his proved preponderance of the evidence.” that the conclusion of (citations omitted). Id. at We further same course of conduct. showing stated that the absence of a “[i]n of defendant, prejudice to the the trial court III. Fair Trial reopen- would be well within its discretion in contends fair ing proof Donna she “was denied a and Government’s case admit of impartial upon trial based numerous [the] venue.... We decline to let what could be [of] errors law and facts which occurred at nothing gamesmanship more than compro- 1) Specifically, alleges trial.” she that: purpose the mise the fundamental of the trial to denying trial court erred in her motion for charges.” determine the merits of the Id. at (citations omitted). judgment acquittal upon of based the insuffi- 22-23 2) evidence; ciency government government In this ease the met its bur- 3) venue; failed to establish the court errone- establishing proper den of pre- venue ously prior admitted one of her convictions in ponderance of govern- the evidence when the 4) evidence; judge the district abused his ment established that all three transac- allowing government, discretion after tions described above in Spring- occurred ease, reopen it had rested its the case to field, Illinois. Because it is uncontroverted move for admission of exhibits which had Springfield, that Hatchett’s crime occurred in subject testimony been the but had Illinois, city and that lies within the Central 5) admitted; previously been Illinois, District of venue in the District she was denied a fair trial because there Court for the Central District of Illinois was jurors no pet- were African-American on her Thus, proper. judge we hold that the jury. ite determining commit govern- error proper ment had established venue. 1. Sufficiency S. Prior Hatchett contends the Conviction court erred denying judgment acquit her motion for challenges the introduction tal, case-in-chief, made at the close of her prior into evidence of her conviction for resi sufficiency based on the of the evidence. trial, burglary. dential Prior to Donna made grant deny decision or a motion for seeking a motion in limine to exclude from acquittal rests within the sound discretion of evidence the fact that Donna had been con Reed, the trial court. United States burglary victed residential in the State of (7th Cir.1989). Because we Georgia on December 1982. Hatchett previously have determined that the evidence prior contended that the evidence of her guilty was sufficient to find Hatchett of each did conviction not meet the time limitations every charged element of the crime be 609(b) of Fed.R.Evid. because her conviction doubt, yond deny a reasonable it follows that years than response, more ten old. judgment acquittal Donna’s motion for government argued that Rule 609 mea insufficiency based on of the evidence was year period sured day the ten from the not an abuse of discretion. release, day conviction whichever later, and since Hatchett was convicted

2. Venue 14, 1982, on July December released 22, 1987, Donna next contends that prior “[t]he Gov the evidence of her conviction 609(b), ernment did not ... demonstrate venue for was not inadmissible under Rule in failing argued. offenses to ask the she had The trial court denied Don judicial limine, Court to take noting notice that all of the na’s motion in since Having “opened the jury’s attention. prison released Hatchett appli regarding conviction on di door” is within “burglary conviction 609[,]” examination, “its complain and that cannot limits of Rule time rect cable preju outweigh the government appeal value does about the fact probative During the direct examination complete the record in nothing dicial effect.” more than did defendant, testified that judgment offering the formal conviction burglary on of residential convicted had been during Donna’s cross-examina into 14, 1982, was re Lerch, December tion. See United States cross July of 1987.7 On prison Cir.1993) (“introduction leased from ... examination, into government introduced party other [permissible] where evidence evidence, objection, the formal rec without door”) (citing States v. opens the Cir.1988), Donna’s Because of that conviction. ord Whitworth, government object when the counsel denied, 109 S.Ct. rt. U.S. ce her resi judgment of to introduce the moved (1989)). 1541, 103 L.Ed.2d 846 conviction, has forfeited burglary dential Davis, 15 F.3d at appeal. the issue on Reopening Government’s I. review, (“[T]o appellate preserve an for issue to Admit Exhibits Case objection at trial proper make a party a must evidence, Following the close of the opposing party and the the court that alerts reopen its case for government moved to objection”). specific grounds for to the admitting exhibits that purpose of certain Therefore, only lies in Fed. recourse Donna’s into evi about but not offered testified were 52(b) “[pjlain states which R.Crim.P. (such during photographs dence the trial rights affecting substantial defects errors or residence, diagram of the house’s although they were not may be noticed currency from the plan, the recovered floor To of the court.” brought to the attention Felicia) government had which the search analysis, the plain error relief under receive received in inadvertently request failed to requirements ... four “must meet defendant during its It is undis case-in-chief. error, the error was there was evidentiary foundation proper puted that the his sub plain affected plain, that the error previ exhibits had the admission of these plain error which rights, and that the stantial laid; only problem was that ously been seriously rights also his substantial affected timely neglected to government had fairness, rep integrity, public affected the Immediately after move for their admission. Davis, 15 judicial proceedings.” utation of “ evidence, government moved the close of rights’ ‘Affecting substantial at 1407. F.3d to move the reopen its case order must have normally means that ‘the error govern those exhibits. The introduction of have affected the prejudicial,’ i.e. ‘must been gov granted the made and the court ment proceedings’.” Court outcome of the District motion, objection, reopen — over ernment’s Olano, (citing Id. case to receive exhibits. 1770, 1778, 123 -, -, L.Ed.2d 113 S.Ct. (1993)). its court abused contends that the the evidence it admitted discretion when argument unpersuaded areWe inadvertently failed to government which burglary con- the admission of her case-in-ehief. We move to admit its it because was prejudiced her defense viction receiving trial court’s act of disagree, as the who attorney, government, not the ministe- procedural purely prior conviction the exhibits brought fact of her first imprisoned? Q.: were response to You Specifically, 7. Donna testified attorney’s questions as follows: A.: Yes. imprisoned? to, why you say, Q.: were you And Q.: let's want to take back I you burglary. remember that 1982. Do A.: Residential December date? A.: A.: I was sentenced Corrections Q.: Yes. What was that December date? to the 14th. Department of A.: Yes. Is Q.: that not correct? And ‘{s you July. were sfc paroled, :k ¡}s I believe, in 1987. ^{[*] [*]} great systematic rial act for the court is allowed exclusion of African-Americans jury will reverse a district process. Finally, discretion. “We selection we note regarding management trial court’s decision pursuant Jury to the Selection and Ser- only Crown Act, for an abuse of discretion.” seq., vice 28 U.S.C. et the Cen- Life Craig, Ins. Co. v. adopted tral District of Illinois has “Plan Cir.1993). Davis, 15 F.3d at See also 36 for the Random Selection Jurors” which truth, searching for (noting that “we are provides jurors for the random selection of errors”). alleged gubernatorial general from the election voter registration supplemented by lists lists of Jury Representative age plan licensed drivers over the of 18. The specifically prohibits appears argue discrimination on the

Finally, Donna race; presume basis of do petite she was a fair trial because the that a denied rules, jury court will follow its own failed to include African-Americans but the defen- (defendant African-American). jury is also “The dant has not that her was not stated, however, Supreme recently conformity Jury Court has selected in with the Selec- addition, that a defendant has no Amendment Sixth tion and Service Act. In this court right petite jury representing upheld a fair registration the use of voter lists as a community.” cross-section of the jury United source for selection in United States McAnderson, 934, (7th Cir.1991). 702, States v. Guy, 924 F.2d We Cir.1990) Illinois, (citing reject Holland v. 493 U.S. therefore Donna’s contention that she (1990)). 474, 803, 110 S.Ct. 107 L.Ed.2d 905 was denied a fair trial because no African- jurors petite jury. American served on her If, hand, other ar- defendant’s gument is that the venire from which the CONCLUSION

petite jury illegally was was selected consti- tuted, Missouri, then under Duren v. Donna Hatchett’s conviction and sentence (1979), 99 S.Ct. 58 L.Ed.2d 579 are she must demonstrate: AFFIRMED.

“1) group alleged that the to be excluded 2) group community; is a distinctive FLAUM, Judge, dissenting part. Circuit representation group of this in the juries venires from which the are selected join part I all but one of the court’s resolu- is not fair and in relation reasonable to the tion of this case. I would vacate the district persons community; number of such sentencing holding court’s decision 3) underrepresentation that this is due Hatchett accountable for the 10.8 of systematic group exclusion of the in crack cocaine that her Felicia tried jury-selection process.” police flush down the toilet while the were Duren, 439 U.S. at 99 S.Ct. at 668. searching § their house. Guideline 1B1.3 any Because Donna has failed to submit drug-trafficking tells us that the ventures of concerning percentage evidence of Afri- others that scope fall outside the of the of- community can-Americans in the only which fense of conviction are attributable selected, 1) the venire was as well as failed to they part the defendant if were present the race and number of same course of conduct or common scheme persons appeared 2) who in the courtroom plan or as the offense of conviction and selection, jury they we refuse to hold that reasonably were foreseeable acts in fur- jury venire from petite which the jointly chosen therance of a undertaken criminal ac- lB1.3(a)(2) (referenc- tivity. have fair and reasonable number of See U.S.S.G. (a)(1)(B)). (There African-American in relation ing citizens to their certainly subsection Indeed, community. number in the enough directly we can- was not evidence to attribute not ascertain from this record the race of the crack the bathroom to Donna’s “acts jurors jury. (a)(1)(A). who petite served on the More- and omissions” under subsection over, Martinez, Hatchett has failed to demonstrate that Cf. (7th Cir.1994). alleged underrepresentation is due to The fact that the single home, occurs in a course commonly sufficient what found in her were single it a sole to the extent that with re possession infer “constructive” her, light of her direct resident, significance spect of Feli- either because its loses dispute I in the constituent activities or possession.) participation do actual cia’s distribution those activities were foreseeable as Donna’s assistance in the possession undertaking Felicia’s criminal pects crack and of a concerted grams of 1.1 distribute) two, then, (with, likely, joined. Step the intent ascertain most part to be crack could be found amount must attributable ma- of conduct. As the course and Felicia’s re of the same a determination indications, Donna, describes, by all jority spective roles in the sales conducted out is, to consummate together house, scope with Felicia worked the nature and their which, evening like Specifically, sale of the agreed-to the second of their venture. third, likely supplied from Feli- agent first and for Feli regular “steerer” or crack; relying on also larger store of “jointly cia’s undertaken criminal such that the cia human links temporal, geographic and activity” en was the distribution Felicia’s supply, the district may the sale and the supply between of crack whatever it tire current activ- been, see, that these supportably Cope concluded e.g., States v. have (2nd Cir.1990), course of conduct. land, of the same ities were 1049-50 Donna, if of the breadth even aware however, alone, not make This does merely drug dealing, episodic Felicia’s participant A responsible for Felicia’s crack. see, sales, intermediary in crack individual automatically ac- activity X is Mojica, 984 F.2d e.g., United States v. drug activity Y even if both countable (7th Cir.1993); States v. 1445-46 United place the umbrella take under activities Mitchell, Cir.1992); 454, 964 F.2d 460-61 enterprise. See somebody’s single drug North, States v. 1B1.3, (explain- application § note 5 U.S.S.G. 1B1.3, (8th Cir.1990); application U.S.S.G. only responsible for fish is ing that the little Evbuomwan, 5; v. note it big wake in which cf. part of the fish’s (5th Cir.1993)? The district 73-74 swims). lB1.3(a)(l)(B) liability limits Section inquiry far in its proceeded this never fairly said to have been those who can vacatur, (which see United is cause for alone undertaking. overarching to the committed Duarte, 1255, 1263 v. States (or is, “com- of conduct” That “same course Cir.1991)) and, had, is little in even if it there necessary plan”) a scheme or describes mon of Don support the wider view record out- condition for conduct not sufficient but Indeed, putting to one complicity. after na’s to be “rele- offense of conviction side of the nature of this pure speculation as to the side vant”, participate one person a can relationship and as to the mother-daughter single course of conduct without part of a necessarily in parent a is to which extent in, foreseeing agreeing the other joining to or grown child illicit of a activities volved qualifies as still parts; the course home, apparent it living at becomes activities of “single” spanning agreement to evidence Donna’s participants. upshot The substantial other (a)(2) beyond the offense of join any undertaking interplay between subsections virtually (a)(1) is nonexistent.* responsible itself is for conviction is that a defendant * institutionally record, situationally better reviewing majority col- suited has After here, forum, (which where the appropriate or as “overwhelming” dis- more lected lacking, appears not to not) supposedly basis the sentence demonstrates for court did trict view, Here, major- my undertaking the result. joint with Fe- endorse drug-dealing Donna's support for a ity strained to find instead has larger the offense of convic- of an order than licia drug-dealing agreement finding Donna's certainly “to comb tion. We are entitled grams of crack that extended to with Felicia in our search record to determine the facts possession solely actual explained inadequately was found Felicia’s justice” and affirm However, subject transac- known and was not the un- based on what we find. sentence clear, result of was involved. The which Donna is I tion in sentence less the correctness long majority’s list of evidence effort is a generally practice vacate suggest a it is better agreement to purportedly shows court to conduct a remand to the district drug-trafficking ongoing participate in Felicia's comprehensive inquiry, which it is the more (even assisting if seller

Because relative) America, single in a transaction UNITED STATES of establishes Plaintiff-Appellee, prospect of occasional involvement most the trafficking enterprise, with the seller’s more joint required prove undertaking DISTRICT, GILA VALLEY IRRIGATION Cf., e.g., Mojica, greater breadth. al.; Arizona, et State of Defendants- respectfully at 1446. I therefore dissent Appellants, portion opinion from that the court’s hold ing Donna Hatchett accountable for the addi COMMUNITY; INDIAN GILA RIVER grams of tional 10.8 crack cocaine. Apache Tribe; San Carlos San Carlos

Irrigation District, Plaintiffs-Interve nors-Appellees.

No. 93-15076. Appeals, United States Court of Ninth Circuit. Argued and Submitted March 1994. Submission Deferred March 1994. July Resubmitted 1994. July Decided First, unpersuaded. pled periodic, I nonsystematic activities. remain but involve- ' geographic ty temporal majori- factors that the scope ment. The of the defendant's undertak- upon nearly relies are not as informative as governs sentencing ac- —not cohort's — majority implies. example, majority For countability. only thing really that is estab- impressed by “presence in the house” played lished on this record is that Donna a role night on the of the arrest and other transactions in one sale—i.e. that she undertook one deal. unimpressed but at the same time remains speculation While the record does not foreclose present Donna was in fact "not at the first and accept when would not decline to transactions", finding proof third this lack of as money acquaintances for Felicia from Felicia’s greater to Donna’s involvement “irrelevant.” Felicia, by who came the house to see she was Similarly, the "six and one-half hour” time frame actively participating ongoing drug by any necessary of this in Felicia's case was fixed not con- nection between the transactions but opposed passively tim- accommodating as business ing agents’ buys police's and the state requests unexpected visitors for her absent Moreover, execution of the search warrant. daughter, prepon- it does not demonstrate majority mainly what the has done is amass derance of the evidence that the former is the (and tangential) cumulative sometimes likely more scenario than the latter. For exam- knowledge drug dealing of Donna's of Felicia's ple, that she knew some of the visitors were general participation and infer her enterprise in Felicia's they addicts tells us little about whether were in knowledge from little more than this anyone fact customers since we do not know if go-between and her role in the offense of convic- Felicia's circle was in fact not a addict. reasoning problematic, tion itself. especially I find such Furthermore, that Donna moved out of the house appellate panel when an reaches to indicates, first, employ ings supplement anything it in order to several months if deficient find- thing, player of fact. For one a small-time probatively how weak her refusal to slam the single necessarily who assists in transactions contact is a peoples’ door faces when she home big-time knows that his dealer. and, second, actually is role in Felicia's importantly, participation More Donna's in a sin- Indeed, enterprise was at most intermittent. de- deal, gle drug knowledge and her concomitant spite majority’s general regard for circum- drug dealing, dispositive Felicia's cannot be (which share), totality stantial evidence I scope participation of Donna’s in Felicia's not, mind, simply my events in this case does dealing generally. According application note light cast definitive on the breadth of Donna's (but majority's analy- 5 of the Guidelines not the participation beyond the offense of conviction. sis) significant important there ais distinc- majority apparently comfortable in assum- knowledge tion between involvement in a worst; consequences acquaintance’s ongoing drug-traf- relative's or as severe ficking are, activity, knowledge they even when the is cou- I am not.

Case Details

Case Name: United States v. Donna A. Hatchett

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 19, 1994

Citation: 31 F.3d 1411

Docket Number: 93-3487

Court Abbreviation: 7th Cir.