United States v. Edward B. Betts, Randy J. Lane, and Judy K. Lane

47-month term when the a could maintain According- America, increase to 19%.

dividend would UNITED STATES claim that reject Plaintiff-Appellee, ly, we Witkowski’s finding to make a failed bankruptcy court modification situation cause. BETTS, Randy Lane, Edward B. J. paid percentage increase was an Lane, K. Defendants- paid The debtor unsecured creditors. Appellants. money and made the same amount of same payments. Even had bank- number Nos. 92-2864-92-2866. finding specific a ruptcy court not made Appeals, United States Court cause, obvious that this case it would seem Seventh Circuit. avoiding windfall to the debtor an additional maintain sufficient cause to would constitute Argued Feb. 1993. plan.13 Casper, original 47 month See Decided Feb. 545, quoting Casper, In re 89 B 153 B.R. (Bankr.N.D.Ill. August slip op. at 1992) (“The not allow the Debtors will Court unanticipated due to an a windfall receive ability pay their

change in the Debtor’s

creditors.”).

III. Conclusion require not thresh- 1329 does

Section creditor, requirement for a debtor or

old approved of an to seek modification

trustee

bankruptcy plan. The common law doctrine judicata impose any also does res showing “change in circum-

minimal of a Rather, creditor, a debtor or trust-

stance.” right

ee absolute to seek modification has the bankruptcy plan after its confirmation

of a plan payments. completion of the

but before granted the modification will be

Whether bankruptcy court’s discretion. It

within the modify of that discretion to

is not an abuse plan” thereby “percentage

an approved

changing “pot plan.” bankruptcy it to clearly finding

court also did not err plan for the modified to exceed

cause existed forgoing For these and the rea-

36 months.

sons, we

AFFIRM. months; permissible prohibit bankrupt- § 13. We note that it was for the 1329 does not also cy considering bankruptcy court to consider the "cause” which court from determination original plan existed for confirmed to exceed of cause. Friederich, Atty., Ralph M. Asst. U.S. Su- (argued), of the zanne M. Wissmann Office Div., Heights, Atty., Fairview Criminal IL, for U.S. Anna, IL, (argued), L. for

James Karraker B. Edward Betts. Schroeder, Illi-

William Arthur Southern Law, Carbondale, University, nois School IL, Randy for J. Lane. Associates, Prince, Hughes D. &

Mark Carbondale, IL, Judy K. Lane. CUMMINGS, CUDAHY, and about him. Webb then Before referred the matter ROVNER, Agents Otey Key. Circuit SIEG Debra and Dan ILANA DIAMOND Judges. out, Vega, it kingpin turned was the of an organization that distributing up had been ROVNER, ILANA DIAMOND Circuit fifty marijuana pounds per through- week Judge. out southern Illinois since 1987. ob- juryA defendants Edward Betts convicted Flores, tained the from Juan who Randy conspiring Houston, lived Texas. the life Over kilograms hundred distribute excess one conspiracy, supplied Vega Flores with more marijuana. Betts and Lane were pounds marijuana, quantity than 500 prison; to 360 months in each sentenced worth over half a million dollars on the Lane was ordered to serve months. transport marijuana street. To from appeal, challenge all three defendants On Illinois, Vega employed Houston to a number pursuant admission of evidence to Fed. of couriers or Randy “runners”. and Betts 404(b) concerning discovery R.Evid. individuals, among Lane were these as was marijuana pounds sixteen and other items half-brother, Betts’ Hubert Shelton. For eighteen twenty- in the Lanes’ home some to purposes, Vega distribution also used a num- charged conspiracy four months after the ber of “stash houses.” The Lanes’ home was Lanes also contend ended. The the search among them. produced illegal these items was and September Agents Otey On and Lane the statements made Key visited Betts at his hop- mother’s home involuntary time of the search were and ob ing regarding Vega. to interview him Be- Arizona, of Miranda v. tained in violation died, just cause Hubert Shelton had Betts asked the officers to return at a later date. (1966). Betts contends that he too was inter They days suggested did so two later. Betts addition, rogated in violation of Miranda. conduct the interview somewhere challenges the district court’s refusal to private more than his mother’s house. He depart disparity downward to reduce the be Department indicated that the Sheriffs tween his sentence and the much shorter acceptable. would be imposed co-conspirators sentences on two Otey Key and drove Betts to the William- separately. who were convicted affirm. We County Department son and Sheriffs inter- squad They him in I. viewed room. did not' FACTS advise Betts of his Miranda rights before 3, 1990, August belonging On officers to doing approximate- so. The interview lasted Group the Southern Illinois Enforcement minutes, ly during which time Betts was (“SIEG”) executed a search warrant unrelat- room, soda, free to walk about the drink to this case and entered room at the finished, smoke. When the interview was Marion, Marion in In- Courts Motel Illinois. home, agreed the officers drove Betts and he side, they convulsing on found Betts the floor speak again necessary. to if with them Ac- and summoned medical assistance. Three cording Otey, suspect to the officers did not later, days appeared Betts at the Williamson being Vega prior Betts of involved with County Department request Sheriffs at the interview, although already Betts had Agent apprised James Webb. Webb Betts However, as much to admitted Webb. Miranda rights, obtaining of his after interview, course of the Betts confirmed that waiver, proceeded Betts’ written to interview approximately twenty trips to he had made interview, him. In the course of this Betts January Vega’s Texas on behalf between trips revealed that he had made several April of 1989 either to take cash to Flores or Alejandro Vega Texas at the behest of “Alex” marijuana to obtain from him. twenty pick up quantities pounds Vega subject January grand jury or more. was the of an On re- SIEG, ongoing investigation by alleging and at the turned an indictment that the defen- interview, conspired Vega conclusion of the and others to Betts said he dants had with willing questions possess would be and to with the intent answer further distribute Betts had disclosed his role as a kilograms of mari- which than 100 more distribute Vega government until suppressed courier for in 1989. The indictment juana. The custody. taken into trial seized from also offered at the evidence the defendants home, invoking Fed.R.Evid. the Lanes’ February a.m. on Shortly 7:00 after 404(b). The district court admitted the evi- arrived at and two interns officers four objection, dence over the defendants’ advis- a warrant for home to execute Lanes’ solely ing jury to consider the evidence Judy Lane admitted After their arrest. respect knowledge to the and intent of house, the officers advised into the officers jury subsequently Lanes. The found all arrest, hand- they were under the Lanes that guilty. three defendants their Mi- them, apprised them of cuffed point, randa rights. At Mrs. sentencing, moved for a down- At Betts private, speak the officers asked departure ground on the that the mini- ward conversation, During they agreed. their mum of 360 months called for under sentence she would consent to asked her whether provision offender of the Sentenc- the career refused, but the house. She a search of ing disproportionate to the Guidelines was if hus- she would consent her indicated that co-conspirators Vega and sentences his approached then Mr. did. The officers band Flores had received. and Flores Lane, signed agreed the search and who charged separately, pleading been and after officers, According to the consent form. guilty, ultimately had sen- received Lane “the they asked Mr. where months, sixty respectively.1 of 144 and tences were, They’re on. drugs” replied: he “Come The district court denied the motion and deep freezer.” in the basement down sentenced Betts to the minimum term of 360 Suppr.Tr. 50. Lane months. marijuana pounds of were found Sixteen deep freezer. Elsewhere in the the Lanes’ II. ANALYSIS house, agents bag a duffel discovered inside, marijuana of of a set with traces Legality A. of Search the Lane Resi- together quantity with a digital scales found dence basket, baggies laundry in a “Ziploc” of and trial, Philip Sylvester At K. of the Illinois scraps paper and various an book address Police that he was one of the State testified names, addresses, phone and containing individuals who had searched the Lanes’ alleged to the Lanes’ co- linked numbers home at the time of their arrest. He identi- conspirators. digital fied the set of electronic scales as well trial, In the Lanes moved advance Ziploc baggies. County as some Johnson seized from their suppress the evidence Faulkner, Elry had Sheriff Louis who also home, Randy contending that Lane’s consent search, participated in the re- identified the involuntary. Randy also to the search was seized, maining including items that were that the statements he made to contended marijuana, bag pounds sixteen the duffel day police on the of his arrest were marijuana residue, documentary and adequate an admonishment obtained without referring alleged items to the Lanes’ co- and waiver of his Miranda rights. Betts conspirators. argue The Lanes that this evi- suppress likewise moved to the statements improperly dence was admitted under Rule Otey Key September he on had made 404(b), first their but we consider contention 13, 1990, contending that the interview that the evidence was seized in violation interrogation to custodial conduct- amounted their Fourth and Fourteenth Amendment Miranda warnings. requisite without the rights. evidentiary hearings, the district court After denied the motions. noted, marijuana As we have and other trial, Agent Otey items were seized from the Lanes’ home

At recounted the sub- interview, conjunction February September stance of the with their arrest on initially government, subsequently 1. the sentence was re- was sentenced to 240 months in prison, cooperation but duced to 144 months. based on his arresting Cir.1988); not 1992. The officers did have a accord United warrant, government Battista, and the search relies 876 F.2d solely Randy justify Lane’s consent to (D.C.Cir.1989); United v. Arango- States Randy’s Correa, (2d search.2 The Lanes contend that Cir.1988). coercion, product consent was the (7th Cir.1992). See also argues Lane that even if her husband’s White, United States v. consent to render suffices the seized evidence (7th Cir.1992). him, against admissible it is insufficient as to previously per- case, because her she refused totality of the cir mission search the house. supports cumstances the district court’s find ing Randy’s consent to search Randy suppression Lane admitted n voluntarily Randy obtained. admit hearing that he had consented to the search having given consent, ted his oral signed (Lane 91, 95), Suppr.Tr. of his home a written consent form acknowledging that signed to the search he had a written threats, force, promises, “no physical or form. Suppr.Hrg. consent Gov.Ex. Lane any mental coercion of kind whatsoever have acknowledged giving He also that after against get been used me to me to consent to consent, he had led officers to the freezer the search ... sign or to this form.” Gov. basement, pounds where the sixteen Suppr. Hrg. Ex. signing After Suppr.Tr. were stored. Lane form, also, hesitation, without led the Randy’s The Lanes nonetheless contend officers to the basement containing freezer (1) freely given, consent was not because marijuana. There is no evidence or alle confused, disoriented, already gation that he did of this under force or (2) custody, he did not realize that he had a threat. (3) refuse, right to the search was al- ready underway by the time his consent was course, Randy already Of was under arrest solicited and stop he did not think he could it by the time he by consented to the search — if even he wished to. accounts, all he and his wife were arrested recently applica-

We summarized the rules and immediately handcuffed almost after ble to consent searches United States v. they admitted the officers into their home. Duran: question That fact is relevant to the of volun- tariness,

Consent searches are valid if dispositive, the con but it not long so as freely voluntarily given. sent was potentially “[t]he coercive effect of [his] cus- Bustamonte, [Schneckloth v. tody mitigated ... by U.S. was the circum- Duran, 93 S.Ct. 36 L.Ed.2d 854 stances.” 957 F.2d at 503. That is (1973).] question The Randy gave whether con the case here. his consent in voluntary, sent was opposed to the surroundings the familiar of his own home. product coercion, ques Although duress or “is a place early the arrest took in the tion of fact to day, be determined from the appear and the Lanes to have been totality of the by circumstances.” Id. at roused sleep from their the officers’ arriv- al, government 92 S.Ct. at 2048. nothing bears suggests Randy the record that proving by burden of fully by voluntariness a was not awake the time his consent evidence, preponderance of the id. at was solicited. After the officers first 2045; 93 S.Ct. at residence, United States v. Lechu knocked the door of the Lane 1035, 1041 (7th ga, Cir.1991), they entering waited several minutes before Moreover, we will not reverse a district Judy’s request. court’s find at solicited ing on clearly Judy’s this issue unless erroneous. consent approaching Randy. before Talkington, interim, United States v. In the while Sheriff Faulkner and California, arresting 2. Chimel v. 395 U.S. 89 S.Ct. cers an individual in his or her home to (1969), permits police 23 L.Ed.2d 685 might hiding. search areas where someone However, be to conduct a limited search of the arrestee and government does not resort to ei- the area within his or her immediate control. support ther of these cases as for the search at Likewise, Buie, Maryland v. issue here. (1990), allows offi- Schneckloth, at Drug En- sent. Yacup of the John Agent Special 2049-50; White, F.2d at 542. Given spoke -with Administration forcement that tending to show permitted smoke bedroom, was the other circumstances accounts, although pur- By freely given, his Randy’s all consent was a soda. have upset when the officers right to re- understand his ported somewhat failure to he was throughout and rational arrived, calm he was dispositive. not fuse is Finally, is no indication there the encounter. coercion, the As further evidence hour, Randy did not early despite that testimony that Randy’s point to Lanes officers’ re- the nature comprehend already begun their search of had officers of his consent. the ramifications quest and Randy’s by the time solicited house willingness to lead the contrary, his To the consent: marijuana in the basement officers prudent simply deemed it that he suggests you sign the if didn’t Q. thought You cooperate. form, conducted? no search would be that he did A. Yes. Randy’s contention right to refuse his consent he had realize that a you signed the form so Q. So conclusion. “The from our not detract does conducted? would be search consent warning does not of a lack Well, searching my they were A. No. simply another factor involuntary; it is was think anyway, I didn’t —I didn’t home totality of the circum considered know, go legal, for them you it was (internal White, at 542 stances.” my a con- house without ahead and search omitted). case, quotation marks already doing, they were sent. Since Randy signed expressly form consent you sign the consent Q. Why did written I that have “I understand acknowledged: form? to the search de right to consent to refuse sign family. I figured my and to refuse I kind of A. scribed above Hearing. fast, Suppr. I everything happening so Lane mean form.” Gov.Ex. disoriented, that he Yacup my had Agent mentally testified Special kind of Lane line to just form line hysterical, and I was kind explained wife was it. he understood had indicated Lane scared. himself admitted Suppr.Tr. 63. Lane right you had Q. you And know didn’t signing before it. read the form to refuse? Duran, in we noted 91. As Suppr.Tr. Lane No, really. A. not the defendant that admonishment an arresting The offi- Suppr.Tr. Lane 94^95. “put on [him] his consent to withhold entitled story, testifying quite cers told different arrestee in terms of experienced par the any until they from search that refrained really to know under needed the what [he] Suppr.Tr. Randy gave his consent. Lane at It is also circumstances.” were it true that the officers 75. Were not the first time significant that this was already in of a search before ob- the midst Indeed, as arrested. the had been consent, Randy’s validity of taining a the noted, only had he been district court not However, might questioned. the consent be before, or times some six seven arrested hearing conflicting judge, the district after he had consented to those occasions on one of clearly transpired, of what credited accounts automobile, marijua where his search of the officers’ account: 140; the Suppr.Tr. Lane see na discovered. indulge if in Even we the at 105-08. also id. obviously some con- There is substantial assumption despite that somewhat dubious testimony of the [the] tradiction witness- this, Randy did not realize he all of es here.... consent, we need his not right to withhold involuntary, his consent was conclude believe, officers, I them- conducted constitutionally re not police were the story that fashion. The right proper selves Randy that he had the quired to advise just, agree I the Lane testified to procuring his Mr. con- to refuse a search before He, government, quite up. doesn’t add on two other present officers and two interns hand, says people scene, the that the were one and the record confirms that at ransacking signed (Sheriff house before he Faulkner) least one of them partici- consent, yet signed after he then pated in contrary the search. But to the consent, admits that he took them he down suggestion, Lanes’ this omission does not to the basement find the in invalidate the search. The Lanes do not fully I deep freeze. don’t understand any contend that misappre- under fully expla- that and don’t understand only Yacup hension that Sylvester would why eventually sign nation did he Indeed, conduct the search. all of the other consent. officers present and interns were in the home thing mitigates The other substan- Randy signed form, the consent tially against Mr. Lane and Mrs. Lane the Lanes do not contend that tried to both, matter, they’re for that is that both restrict the number of officers who would strangers difficulty. According participate. reflects, Insofar as the record calculation, my Mr. Lane has been convict- any the failure to list of the others on the occasions, on three former arrested solely consent form was due to the fact that three more. He’s been under arrest at there were two blanks on the form for or least six seven times. One time he also purpose. Finally, this the Lanes do not iden- involving possession consented to a search tify any specific prejudice resulting from the clearly I of cannabis. think he knew what participation of the other officers doing. any I he was don’t see over- search. We note that in similar circum- reaching here of the law enforcement offi- stances, rejected Ninth Circuit has cials in this ease. very contention that the Lanes make here: ... I feel that based on these observa- unpersuaded We are that a consent tions, testimony police based of the validly qualified by search officers, pursu- was a valid search search, number officers allowed to ant to a consent. That no there was coer- we so hold. Once consent has been ob cion, intimidation, physical no nor other it, authority give tained from one with mental coercion involved of kind. any expectation privacy has been lost. overreaching by There was no the officers seriously entry We doubt that the of addi involved, consequently, the motion to tional officers would further diminish the suppress hereby ... denied. expectation privacy.... consenter’s Cf. Suppr.Tr. 139-41. The district court’s White, United States v. findings regard in this rested on his assess- (5th Cir.1980) (motion suppress credibility ment of the of the witnesses. Ab- delay denied because search and search showing testimony sent some by agents not named in consent form were “exceedingly improbable,” credited was we search). scope not related to the defer to that assessment. United States v. Rubio, United States v. Cardona-Rivera, (9th Cir.1983); accord Wildauer v. Frederick Cir.1990) (emphasis original). in No such (4th Cir.1993). County, 993 F.2d showing has been made here. We therefore We likewise conclude that under the circum- accept the district court’s determination that us, stances before there was no Fourth postponed the officers their search until Ran- by partic- Amendment interest violated the dy’s consent was obtained.3 ipation of officers other than those listed point although The Lanes out that the the consent form. Randy signed expressly consent form autho only Special Agent Yacup Sergeant finally rized We arrive at Lane’s con search, Sylvester during to conduct the there were tention that the items seized the Lane, suggested promise Suppr.Tr. Mr. Lane has that in order to obtain and the consent, promised his the officers that no Randy signed acknowledged consent form that charges anything they would be filed based on product any that his consent was not the of However, during Special discovered the search. promises, id. Gov. Ex. 1. Agent Yacup explicitly making any denied such 404(b) admis- precludes the Although in Rule against her admitted not be could search concerning con- the defendant’s withheld her of evidence that she sion the fact light of outset, according crimes, that wrongs, we note or acts” in order “other At the sent. Judy indicated she Yaeup, Agent of- Special to commit the propensity establish Thus, it is did. if her husband consent charged, would it allow such evidence fense does Randy’s subsequent clear, given all not at variety purposes. a of other be admitted search, Judy ulti- that permit the decision 404(b). admitting the Before Fed.R.Evid. event, any consent. mately her withheld purposes, or more of these evidence for one in Duran: noted as we however, court must satisfied the district that “the consent It well established is each of four conditions: that it satisfies authority over common possesses who one “(1) toward estab- the evidence is directed against the is valid as premises ... [the] lishing other than the a matter issue that nonconsenting person with whom ... propensity to commit defendant’s States authority is shared.” United (2) that charged, the evidence shows crime Matlock, [94 171 n. 7 U.S. enough and close the other act is similar 242] n. 39 L.Ed.2d to matter enough in time to be relevant authority (1974).... rests “on [C]ommon (3) issue, the evidence is sufficient by persons property use of mutual support jury finding a that the defendant joint of control for having access generally (4) act, pro- the similar committed purposes.” most bative of the evidence is substan- value case, undisput is In this it 957 F.2d at 503. danger tially outweighed by the of unfair implicating together, Lanes lived prejudice.” spouse has the that “one presumption premis to a authority to consent search Levy, Id.; jointly occupied by spouses.” both es Cir.1992) v. Za- (quoting United States although we have at 505. And see also id. (7th Cir.1989)), pata, spouse possibility that one open the left — -, dis over might exclusive control maintain The Lanes contend L.Ed.2d 62 a common homestead portions crete failed the evidence seized from their home right to authorize a thereby retain the sole conditions, we our each of these confine here, areas, id. at of such search marijuana and to whether the consideration or the hint in either record there is no probative other fact items access to lacked brief that Lanes’ knowledge and intent. these Lanes’ Because It is the portion the Lane residence. eighteen at months items were seized least presumption to rebut defendant’s burden ended, agree charged conspiracy we after showing, joint making id. such control were not. not done the Lanes have and because so, Randy’s sufficed consent we conclude we consider Before admissible to render the evidence seized paraphernalia, an initial related word him. against Judy as well reflecting regarding order the documents Marijuana Evi- regarding and Other B. Admission of names and other information (1) the Lane Home co-conspirators. dence Seized from Lanes’ These included piece paper bearing the name address the evidence district court admitted (2) Flores, wife; an of Rosa Nilda Juan’s scales, concerning marijuana, electronic containing the “Alex” address name book seized from the bag, and other items duffel assigned pager, telephone to a number 404(b), pursuant home to Fed.R.Evid. Lanes’ numbers, telephone the name “Juan” and two establishing Lanes’ purpose for Airlines, telephone for numbers Southwest respect to the knowledge intent with and TWA, Greyhound (including for numbers and charged other eviden- conspiracy. As with Houston), some and and Southwest TWA tiary for rulings, that decision we review - (3) information; scheduling and a note flight v. abuse of United States discretion. Cir.1993). pend McCarthur, 1270, 1279 (7th charges criminal appearing to list the 6 F.3d

757 Flores,4 ing against purview. Juan witnesses within the rule’s Depending upon against (including circumstances, him and Betts Hubert the factual chronological Shelton), regarding relationship and information charged Flores’ of the offense and the attorneys. Although lump may the Lanes these other bearing act well have some on this together Watson, inquiry, items with the other evidence ad see United States v. 894 404(b), 1345, (D.C.Cir.1990) mitted under Rule these documents F.2d 1349 but it is not acts,” necessarily dispositive, were not evidence of the Lanes’ “other United States v. Brown, (8th proof very 109, Cir.), but rather circumstantial of the 923 F.2d 111 cert. — denied, conspiracy -, charged. 110, with which U.S. 112 S.Ct. 116 (1991); alleged The references to the Lanes’ co-con L.Ed.2d 80 United States v. Ra mirez, (2d spirators Cir.1990). familiarity 565, tended to show a and 894 F.2d 569 them, proba association with and thus were add, however, We hasten to simply tive of whether the Lanes were members prior because evidence aof act is admissible conspiracy. v. See United States McGlo 404(b) under particular Rule for a purpose Cir.1992) 309, (3d ry, (collecting 968 F.2d 333 does not mean that a similar subsequent — cases), denied, U.S. -, -, cert. 113 necessarily act is admissible for the same (1992), 121 S.Ct. L.Ed.2d 339 purpose. cases, In narcotics example, for — -, 1388, U.S. 113 S.Ct. 122 prior drug frequently transactions are admis (1993). telephone L.Ed.2d 763 numbers light they sible for the shed on otherwise companies for the airline and bus were simi proof circumstantial in defendant’s larly probative, in that corroborated volvement narcotics distribution. The testimony Randy trips Lane had made government’s proof may establish that by to and from Houston air or bus as a defendant alleged associated with his co-eon- Vega. courier The fact that such evidence spirators, employed facially innocent code was found after the time frame of the con language, propinquity was observed in spiracy necessarily proba does lessen its narcotics, possessed para such hallmark force; tive it still demonstrated a link with scales, phernalia pagers, as electronic cellular co-conspirators5 sug the defendants’ telephones, Ziploc baggies. Defendants (in numbers) gested telephone the case of the posit can and often do these circum conduct conspiracy. consistent with the merely happenstance stances are and that said, That we turn to the they may involvement have had with 404(b), course, and related items. Rule narcotics distribution or dealers was unknow concerning does not restrict ing evidence the de and unintentional. See United States v. Carson, (7th Cir.1993) 576, fendant’s “other acts” events which took 9 F.3d 587-88 crime; (mere place alleged “[b]y very presence illegal its at the scene activi before 404(b) terms, distinguish Paiz, ty); 1014, does not between United States v. 905 F.2d (7th ‘prior’ ‘subsequent’ Cir.1990), denied, acts.” United States cert. (9th 1398, Bibo-Rodriguez, (1991) v. 922 F.2d 111 S.Ct. 113 L.Ed.2d 252 — Cir.), denied, (mere U.S. -, cert. co-conspirators); S.Ct. association with 2861, 115 (7th L.Ed.2d 1028 Vega, see also Unit United States 860 F.2d (7th Cir.1988) (use 1273, 1278 Beasley, ed States v. language); of code United Cir.1987); Foster, (7th Brantley, United States v. 786 States v. 450-452 Cir.1991) Cir.), denied, (use trade). cert. of tools of the In that context, U.S. evidence of the defendant’s (1986); 2 Christopher uniquely probative David W. Louisell and transactions Mueller, See, § B. Federal e.g., Evidence at 198 the defendant’s mindset. Hernandez, question The critical is whether the States v. sufficiently Cir.), probative evidence is of a matter September Arguably,

4. Flores had been arrested in the set of electronic scales found in link, and at trial he confirmed that after the arrest he the Lanes' home established a similar be- spoke charges pend- Lane about the cause identified the set as one that he had ing against given him. Flores Tr. 20. the Lanes. Tr. 249-54. 758 marijuana altogether by (1990); distributing stopped v. United States

159, 112 125 L.Ed.2d (7th Cir.1988); 1990, that he 442, February having gotten wind Grizales, 446 F.2d 859 1308, Vega Scott, investigation. Tr. 69-70. 1311 was under 767 F.2d v. States United only employed Ran Cir.1985). also testified that he had (9th Subsequent narcotics activi four dy a courier for three or hand, Lane as particularly conduct ty, the other relationship with had severed his separated in time from months and substantially that is 1989, in the summer of after offense, likely to illu the Lanes is far less charged him that had lost one an Lane informed state of mind on minate the defendant’s 55-57. marijuana shipments. Tr. v. of the United States Gar See earlier occasion. arrested, (1st Thus, Cir.1989), 209, by the time the Lanes were cia-Rosa, 221 F.2d 876 742, 107 1030, 110 years passed had since their denied, two and a half S.Ct. 493 U.S. cert. conspiracy, and the (1990), last involvement part on other vacated L.Ed.2d 760 conspiracy 112 itself been defunct between 111 S.Ct. grounds, 498 U.S. years.6 How and (1990); Lego, eighteen months and two States v. United L.Ed.2d 391 (8th Cir.1988); why possess the sixteen the Lanes came United 546 855 F.2d (7th Moschiano, marijuana some of the related pounds 244 of 695 F.2d States v. denied, at the time of their paraphernalia discovered Cir.1982), cert. certainly although it unexplained, arrest L.Ed.2d Jimenez, suggests they may have continued or v. States through oth Cir.1980). Boyd, resumed distribution also United See Cir.1978) (“The (3d insight But it no into 120, 126 logic of er channels. offers knowledge and intent was knowledge proof what the Lanes’ showing prior intent us.”); years v. Echever activity escapes contra earlier. See United States subsequent (3d Cir.1988).7 ri, 214, 217 F.2d Hadaway, 681 F.2d v. United States (4th Cir.1982). Invoking Wigmore’s “doc Professor chances,” 2 ease, discovery Wigmore, J. Evidence trine In this we believe (Chadbourn 1979), gov § rev. paraphernalia in the 302 at marijuana and related discovery argues of a distri February little or ernment that the of 1992 had Lanes home marijuana in establishing quantity bution the Lanes’ the Lanes’ probative no worth prove that intend charged á home “tends to the Lanes knowledge and intent vis vis the marihuana in the indict trial evidence revealed that distribute conspiracy. The statistically improbable than ment because it is at an end no later conspiracy was arrested; person that an innocent would find himself or Vega was August much. twice confronted with factors indicat conceded as See herself government 2; ing Tr. Tr. he or she intended to distribute marihua Opening Friederich Statement Indeed, agree in an that he had na.” 18-19.8 We testified Gov.Br. 490-91. denied, (7th Cir.), acknowledged Agent Yacup at trial that cert. Special 6. - U.S. -, -, conspiracy part marijuana was not the charged 112 S.Ct. (hat case, charges separate (1991), and that in this of evidence to sustain the admission brought against the Lanes in state court had been defrauding charged a defendant an insur this seizure. Tr. 896. based on company by murdering partner ance business collecting proceeds of her life insurance Having evidence was not concluded that the previously murdered his wife and collected intent, knowledge probative we of the Lanes' proceeds the insurance on that occasion well. argument up we the Lanes' need not take We “the odds of the same individu reasoned that holding that our cases should reconsider benefits, reaping space al within the of three charged has been when the defendant people years, grisly of two murders of he had offense, 404(b) specific evidence is Rule intent low, incredibly toward seem reason to be hostile his intent even where intent admissible to certainly enough support low an inference that expressly disputed. See United States is not product design rather the windfalls were Cir.1992) Kramer, 492-93 vagaries We also than the of chance." Id. — J., (Cudahy, concurring), particularly pointed out that this evidence -, -, 595, 596, 121 L.Ed.2d 533 explanations relevant in view the innocent in con defendant had tendered for his conduct out, We with the second murder. Id. think government points nection 8. As the we relied on the York, distinguish points from the case at two York doctrine of chances in United States v. circumstance, summarizing of de- in appropriate evidence the common law tradition activity subsequent might criminal fendant’s láter codified in the rule: prior that conduct be admissible to his may prior The State not show defendant’s accidental, particularly unwitting or was not law, acts, specific trouble with the criminal incident occurs within a rela- later ill among neighbors, or name his even tively the first and a short time of shares though might logically such facts per- be See, pattern. e.g., common United States by propensity probable suasive that he is (8th Johnson, Cir.1991); 934 F.2d perpetrator inquiry of the crime. The is Watson, 1400; Bibo-Rodriguez, 922 F.2d at rejected because character is irrele- Thus, 894 F.2d at 1349. when a defendant vant; contrary, weigh on the it is said to duped that he was on the raises defense jury overper- too much with the and to so occasion, subsequent con- first evidence prejudge suade them as to one with a bad may duct be admissible to establish that his general deny record and him oppor- a fair knowing. conduct was not inadvertent but tunity against particular to defend Bibo-Rodriguez, 922 F.2d at 1400. But inso- charge. overriding policy excluding reflects, far as the record the Lanes did not evidence, despite such proba- its admitted Vega’s that in al- contend their involvement value, practical tive experience that leged conspiracy unwitting. if Even prevent its disallowance tends to confusion had, persuaded we are not that evidence issues, surprise, unfair preju- and undue marijuana and related of the items found dice. years conspir- their house some two after the States, Michelson v. United acy bearing ended have had much on would 213, 218-19, 93 L.Ed. 168 argue, govern- such a contention. To as the (1948) (footnotes omitted); see also United does, person ment that an innocent would Wright, Cir. likely caught not be twice in the midst of 1990); Williams, United States v. marijuana appears to what be distribution Cir.1984); United States v. way saying seems to us another that be- Daniels, (D.C.Cir.1985). possessing cause the Lanes found dis- marijuana quantity tribution-sized at the suggests The concurrence that there arrest, they likely of their time were more proof is a distinction between of a defen engaged conspiracy have in the 1987-90 as propensity drug dant’s to commit offenses alleged. poorly disguised propensi- That is a proof drug trafficking his occu ty argument, exactly and that is what Rule pation. Post at 766-67. If there is such a 404(b) prohibits. Beasley, See 809 F.2d at distinction, pressed identify we are hard it. rubric, jury Under either is invited to drugs conclude that if the defendant dealt by sug- We are troubled concurrence’s occasions, probability other he in all went gestion have been astray way, this time as well. Put another admissible to establish the Lanes were the defendant’s other acts are offered not to drug continuing involved business on a motive, intent, plan, op establish modus likely basis and thus were more to have erandi, permitted or other matter participated in charged conspiracy. Post 404(b), Rule rather his Rule conduct. Perhaps, at 766-67. as the concurrence as- proscribing 404 could not such serts, be clearer drug “evidence that someone’s traffick- Muelle'r, § ing evidence. See 3 Louisell & 136 at principal occupation may is his or her (“It is the unmistakable directive of Rule quite probative of whether he or she was a 404(a) person’s that ... participant particular conspiracy....” in a evidence of charac 404(b)’s ter, character, pertinent proscription Post at 766. trait of shall not But Rule propensity tending if premised evidence is not on the be received it is relevant probative person engaged notion that such evidence lacks val- show certain Rather, Supreme explained particular ue. as the Court on a occasion. conduct other first, fense, illuminating readily hand: the other act at issue in York in thus more the defen circumstances; extremely unique respect allegations volved and sec dant’s intent with to the ond, charged that act occurred to the of indictment. 760 Randy was not whether and The issue here that character evi- is

words, rule the basic purveyors of circumstantially professional Lane were may not be introduced dence joined par- conduct.”); F.2d at 70. the Wright, marijuana, 901 but whether prove alleged in the conspiracy indictment. ticular the quarrel no have Generally, we Zelinka, at 99. The concur- 862 F.2d See “[n]areotics that statement Circuit’s Second in a chain of inferences has constructed rence one, illegitimate business, though an ais of the to establish the relevance an effort in the defendants that evidence reasoning question, from marijuana to this relevant, closely time is related at a business discovery in the basement of the stash showing of bad character.” not a mere and is marijuana trafficking was the that freezer Viserto, 531, 537- 596 F.2d v. United States occupation and from there principal Lanes’ denied, 841, (2d Cir.), 444 U.S. 100 38 likely to have were more (1979). that the Lanes 80, But relevant 52 62 L.Ed.2d S.Ct. conspiracy joined Vega the others a no find in Viserto en We sense? in what years earlier. Post more than two distribute that a defendant’s the notion of dorsement noted, are, have as we unable at 766-67. We business at one in the narcotics involvement propensity argu- distinguish this from a probabili to demonstrate time is relevant is Wright, 901 F.2d at What engaged at ment. See similarly another. ty that more, contrary, it stretches the record the three we believe On the post at 767.- See discovery of the mari- for the relevance assume from mere in Viserto cases cited 538) (see that had made juana F.2d at reflect in the Lanes’ home 596 such evidence 404(b) assumption drug dealing, Rule an for which a career of purposes the usual See properly appears springboard offered. United to be the concur- is evidence (2d 431, F.2d 435 Magnano, reasoning. post 543 at 766-67. See Even States v. rence’s Cir.1976) dealings correct, (prior assumption narcotics admissible we are all if that showing purpose legitimate the admission “for the more convinced conspiracy”), development background guilt A was erroneous. defendant’s evidence denied, 97 429 U.S. S.Ct. proof rt. based on must be determined ce (1977); indictment, L.Ed.2d 536 United 51 charged in the particular offense (8th 650, 654 Conley, 523 F.2d Cir. history. States v. v. criminal United States not his curiam) 1975) (prior activity narcotics (per Torres-Flores, 1035-36 the defendant’s to show Lewis, admissible “was Cir.1987); F.2d v. United States development of knowing and intentional (9th Cir.), 1318, 1321 amended on other plan to do heroin and of so to sell Daniels, scheme (1986); grounds, F.2d 1250 distribution”), mode of the actual consistent with at 1116. denied, 424 S.Ct. rt. ce Although thus conclude that the we v. 1125, 47 United States L.Ed.2d 327 an of this evidence constituted admission (2d Cir.) Torres, (prior discretion, that the abuse of we also believe “to show purchases admissible narcotics against The evidence error was harmless. conspiracy”), development of a background and overwhelming. Vega Both Randy Lane was rt. ce made and Flores testified multi marijua stash of marijuana. Tr. ple trips to Texas to retrieve home, coming Lanes’ na discovered 259-60, 264; 48-50, 255, Flores Tr. 15-16. participation years after their more than two co-conspirators, including David Other Over- ended, none of conspiracy serves these similarly. Thompson, testified turf and Eddie v. States Ze purposes. familiar See United 404-06, 408-09; Thompson Cir.1988) (discov Tr. Direct/Partial linka, 862 F.2d Thompson recalled once Cross Tr. 9-10. person ery defendant’s of cocaine on time trip Vega Randy to make a hearing instruct his arrest admissible marijuana; pick up shipment to Texas conspiracy that had participation in ended Randy at Flores’ Thompson also saw home earlier); also months see seventeen (2d Di Thompson Texas on one occasion. Rodriguez, 943 F.2d addition, Bakke, Tr. 8-12. Cir.1991); Cross United States rect/Partial (6th Cir.1991). that the both testified Thompson 982-83 16, 819), was used as a stash house for Lane residence Betts has not offered us marijuana. Thompson reason to believe this admonition was inade Direei/Partial 5-7; 4-6; Thompson quate any prejudice Cross Tr. Cross Tr. see to shield him from Baldwin, also Tr. 264. Kevin another have attended admission of the Rule 404(b) courier, also confirmed that he had been to evidence. See United States v. Tu chow, marijuana Cir.1985); the Lanes’ home and had seen 865 n. 10 320-24, Perez-Garcia, stored in their basement. Tr. 898. see also United States v. 904 against Judy Cir.1990); Ramirez, The evidence Lane was not as pervasive, equally Vega damning. but was 894 F.2d at 570.9 Judy testified that Lane assisted with the (Tr. C. Failure to 264) Mirandize Betts

packaging of and that participated she had in conversations con argues Betts that the district court Randy’s cerning trips the details of to Texas denying erred in suppress his motion to (Tr. 60-61). Vega also described one occa statements he Key Otey made to officers present sion on which he was at Overturfs 13, 1990, September on because the officers home, house, mobile which he used as a stash apprise failed to him rights of his Miranda Judy apprised by telephone when him questioning before him. Miranda held that bringing Randy by that she would be with a prosecution statements, may' “the not use shipment marijuana just brought he had exculpatory inculpatory, whether or stem 65-68; back from Texas. Tr. see also Tr. ming interrogation from custodial of the de 427-28. Overturf himself testified that he fendant it unless demonstrates the use of had been at the Lane home on occa several procedural safeguards effective to secure the Judy taking part sions and witnessed in con privilege against self-incrimination.” Mi (Tr. regarding drug versations runs Arizona, 436, 444, randa v. S.Ct. 427); he had also seen her a suitcase retrieve 1602, 1612, (1966) (emphasis containing marijuana Vega when visited the supplied). Although Betts was not under (Tr. 408). testimony residence This was di spoke Otey Key, arrest when he he ample Judy’s rect and evidence involve questioning maintains that the was nonethe conspiracy. Accordingly, ment we custodial, emphasizing less that the officers question prof have no that had the evidence unannounced, arrived at his mother’s home 404(b) excluded, fered under Rule been ear, put him in their and interviewed him at jury would have convicted both and her County Department Williamson Sheriffs generally husband nonetheless. See Kottea ninety advising for minutes without him that States, 750, 764-65, kos v. United 328 U.S. 66 he was free to terminate the interview. The 1239, 1247-48, S.Ct. 90 L.Ed. 1557 district court concluded that these circum Manganellis, v. United States interrogation stances did not render (7th Cir.1988). Betts custodial. We review this decision only Kelly, for clear error. United States v. Finally, we note that Betts has likewise (7th Cir.1993). 404(b) challenged the admission of the Rule evidence, contending unduly preju it custody Whether an is in individual Yet, diced him as well purposes degree as the Lanes. of Miranda turns on the to expressly jury district court instructed the which his freedom has been restricted. Thus, that it explained “By consider the evidence as Court Miranda: (Tr. knowledge interrogation, questioning the Lanes’ and intent 515- custodial we mean against 9. We belonging are satisfied that the evidence Betts then driven to a Betts mobile home Vega overwhelming. was also testified that Betts Vega's girlfriend, Vega inspected where the mari- had made between five and ten runs to Texas on 317-20, juana contained in Betts’ suitcase. Tr. 31, 32, his behalf. Tr. 45. Flores likewise iden- Overturf, Finally, Thompson, 360-62. and Bald- tified Betts as a courier. Flores Tr. 15. Carla win all testified that had told them that accompanied Berberich said that she had on a run to Texas. Tr. Betts best, Betts was one of his of his couriers—one 306. Baldwin according Thompson. Thompson Direct/Par- accompanying Vega recalled on one occasion 13, 28; 316, 319, 360-62, tial Cross Tr. Tr. 411- pick up a bus station Carbondale to Betts on Houston; Vega his return from had Baldwin contrary, record indicates that after On officers enforcement by law initiated questioning freely cooperated with custody Betts into or other- taken person has been the authorities: pressure from overt action in without deprived, wise freedom of at the Sheriffs De appeared earlier U.S. at way.” 384 significant Webb; speak he had told partment also Ore- supplied). See (emphasis at 1612 meeting of that 492, 495, at the Mathiason, Webb conclusion gon v. curiam) ques further (1977) happy to answer he would be (per L.Ed.2d Otey Key tions; and he had left with only required (“Miranda warnings are where willingly they arrived at his home per- on a a restriction such has been there accounts, By Betts September 13. all ‘in custo- him as to render son’s freedom the officers’ that he answer never told must ”). And, elaborated Cali- dy.’ Court impression that he questions given Beheler, “[although the circum- fornia pleased. go as he Cer not come and certainly could must influence each case stances of suspected of a tainly, “[a]ny of one interview suspect a is ‘in of whether a determination have coercive by police a will crime officer receiving Miranda custody’ purposes it, by of the fact simply virtue that aspects inquiry simply is the ultimate protection, is of a law enforcement police part the officer arrest or restraint a there is ‘formal whether ultimately system cause the sus which degree asso- movement’ on freedom charged a crime.” Mathia pect to be with 1121, arrest.” 463 U.S. a formal ciated with son, 495, at 714. at 97 S.Ct. But U.S. 77 L.Ed.2d 1275 103 S.Ct. establishing a restraint on the absent facts Mathiason, curiam) (1983) (quoting (per freedom, warnings are suspect’s Miranda 714). Kelly, also at See 97 S.Ct. U.S. at missing facts are required. Id. Those not Bush, 1312; 991 F.2d at shows, record the offi here. Insofar Cir.1987). request speak with them cers’ that was Betts suggest do not Here, the circumstances Indeed, nothing more. request a and in any restricted was that freedom Betts’ speak declined to with fact that Betts had degree commensurate way, alone let Otey Key days earlier and asked two place did take The interview at arrest. suggests date them to return at a later that Supreme Department, but the the Sheriffs appreciated the consensual nature Betts that, this fact alone held does Court has twice although the questioning. And officers Beheler, warnings. require Miranda out, unannounced, points as Betts it returned 3520; Mathiason, 1125, 103 at at S.Ct. U.S. they that did so because Betts’ appears 714. At at at S.Ct. 429 U.S. deaf, mother, telephone did not have a who minimum, that the evidence established Betts 63-64; Suppr.Tr. see in her home. Betts pro- the interview problem” had “no if, Finally, sug as Betts also Tr. 692. even location; Otey’s by ac- ceeding at that suspected him of gests, the authorities crimi count, actually chose it over the other Betts conspiracy by nal involvement Otey suggested (driving possibilities two September the time he was interviewed adjourning to a in the car or local around itself, not, by trigger that fact does Mi Hardee’s). Suppr.Tr. 64-65. Fur- Betts Beheler, at randa. S.Ct. depart- ther, arrived at the three Mathiason, 3520; 429 U.S. at at ment, cramped to the Betts was not taken 714. at room, interrogation but to of an confines circumstances, these we discern no Under room, squad where the doors public more error —clear or otherwise —in district others came and open and went were left questioning that the court’s determination was conducted. Betts while the interview that Miranda Betts was noncustodial lengthy Suppr.Tr. 67. The interview unnecessary. warnings were therefore minutes), throughout that time (ninety Otey to smoke one Betts was allowed Randy of his Miranda D. Lane’s Waiver Suppr.Tr. him a soda. Betts point fetched Rights Thus, physical nothing in the environs or 60. also raises a Miranda signals a restraint Lane manner of the interview issue, contending the statements he on Betts’ freedom. hearing time of his arrest were obtained sion made at the he delivered Miranda warnings in violation of Miranda and should have been immediately to the Lanes after the discloses, suppressed. as the record Insofar officers were admitted to their home and he material statement of Lane’s to be explained were under arrest. Lane remark, admitted at trial was his when asked Suppr.Tr. Although the Lanes both were, drugs” “[t]hey’re down where “the apprised claimed that were never deep in the basement freezer.” Lane rights, their expressly the district court re Suppr.Tr. already 142. Lane been jected quite that contention: “It is clear to by arrested and handcuffed the time he made ... rights me that under Miranda ... unquestionably thus statement given to the defendants. I think custody; government consequently question there’s no ... up that that was done establishing by prepon bore the burden front, right speak.” off of the bat so to ap derance of the evidence that Lane was 139-40; Suppr.Tr. see id. at 143. This find prised rights of his Miranda before he made ing, which rests on judge’s the district rea statement, that he understood these credibility assessments, sonable is one we rights, and that he waived them without Cardona-Rivera, accept. supra, 904 F.2d at coercion the authorities. Colorado v. 1152; Clark, 783; see also 943 F.2d at D An 157, 168-69, 107 Connelly, toni, 856 F.2d at 980. We also note that North Car Randy made the statement about the location Butler, 369, 373, olina v. 441 U.S. 99 S.Ct. not after he had been 1755, Miranda, 1757, (1979); 60 L.Ed.2d 286 rights admonished of his but after he had 475, 384 at 86 at 1628. U.S. S.Ct. already orally consented in writing to a Although search of the house. suggests an individual has know

Whether that he was confused and did not understand ingly voluntarily waived his Miranda rights, his the record reveals otherwise. rights depends totality on the circum Yacup testified that C, stances, 707, v. 442 Fare Michael U.S. both indicated that understood

724-25, 2560, 2571-72, 99 S.Ct. 61 L.Ed.2d rights he (1979), Suppr.Tr. had read them. Lane 197 and the district court’s assess Moreover, noted, although 42. as we have subject ment on this is a factual one we place hour, error, early the encounter took at an review for clear United States v. Clark, 775, Cir.1991), appears pos Mr. Lane to have in full 943 F.2d been 783 cert. — denied, -, faculties, session of his U.S. 113 S.Ct. 125 and there is no evi (1993); any dence that he was in manner L.Ed.2d 730 United States v. D’Anto coerced ni, (7th Cir.1988).10 responding questions. 982 The into to the officers’ C, 726-27, express, waiver not 442 need be See Michael U.S. at 99 S.Ct. understanding inferred from the defendant’s at 2572-73. Nor is there evidence that rights coupled any impediment of his with a course of conduct Lane from suffered that reflecting give up right might warnings his desire to his have the Miranda rendered ineffective; remain contrary, previous silent have the counsel of an on the Lane’s Butler, attorney. likely 441 at U.S. 99 S.Ct. at encounters with the law most enhanced 1757; C., appreciation rights, see also Michael 442 his U.S. his the district instance, 99 S.Ct. at 2571-72. In find Suppr.Tr. this we court observed. Lane 143. See C., 2572; the record sufficient to establish that Lane Michael at 99 at S.Ct. Meirovitz, apprised rights of his v. under Miranda States — them, Cir.1990), denied, freely -, chose to waive as the dis cert. U.S. Thus, Suppr.Tr. trict court found. Lane 142-43. S.Ct. 116 L.Ed.2d 71 Special Agent Yacup suppres drugs” testified at the when Lane told the officers that “the - course, -, question 10. Of the ultímate of whether D’Antoni, truly voluntary the Miranda waiver was is a L.Ed.2d 67 856 F.2d at 981. standard, question subject searching of law to de novo review. Bas Even ever, that how under more Clark, (7th Cir.1992) kin we conclude that Lane's waiver was indeed Fenton, 104, 117, (citing voluntary, by any Miller v. untainted coercive conduct on (1985)), part of the authorities. cumulative on freeze, testimony would have been deep he know in the basement agreement itself indicat point. plea voluntarily right to re this waived ingly and depending Vega’s cooperation, ed that was therefore His statement main silent. might for a reduction government move trial. at admissible years. to a term of twelve Vega’s sentence Testimony ¶ of Sassi E. Exclusion Vega acknowledged the § II 9. Gov.Ex. examination, and re agreement on direct inability to elicit cer- challenges his Betts gov expectation that the peatedly voiced his Sassi was testimony from Steven Sassi. tain of his sen would seek a reduction ernment County Perry Jail with incarcerated cooperation. Tr. 4r- exchange for his tence 20,1992, just April April 6 and Vega between Indeed, by Betts’ on cross-examination Betts, According to trial. appellants’ counsel, very point that Vega conceded testify told prepared Sassi was through hoped to establish Sassi: Betts against and the testifying Betts him he was anyone Q. you Have told that because government’s exchange for the Lanes testimony today your your here sentence be re- request that his promise to going to be reduced to twenty years.11 The sentence to twelve from duced testimony years? pursu- excluded district court 613(b) because, ant to Fed.R.Evid. my plea agreement. I A. That was view, given counsel had Betts’ court’s getting years, I and— figuring was explain adequate opportunity Vega an got you I know. but then on cross-examination be- deny the statement you’re Q. you people told So have the statement attempting fore going to? district Tr. 748-49. The through Sassi. might hoping I A. I told them be—I’m terms of pointed out also court getting years. that I’m agreement had been established Vega’s plea 204; Thus, Tr. see also Tr. 205-06. as the testimony. Tr. 749. Vega’s during recognized, testimony district court Sassi’s appeal, Betts contends that On Vega nothing that would have established 613(b) pur inapplicable, because his Rule already had not admitted. Tr. 749. himself an to inconsistent pose was not establish circumstances, these the exclusion of Under credibility statement, Vega’s to attack testimony regarding Vega’s out-of- Sassi’s by establishing a motive for generally more erroneous, court statement was not let alone Betts, course, Br. 15. of Betts fabrication. prejudicial to Betts. Vega’s to establish interest every right Departure F. a Downward Refusal Grant generally assisting government. See Abel, Finally, challenges Betts the district 105 S.Ct. United States (1984); depart downward from the 3 David W. court’s refusal to L.Ed.2d 450 Mueller, range. By sentencing the time Betts was Christopher B. Federal Louisell sentenced, Vega kingpin admitted of (Supp.1993). § at 321 Even Evidence —the so, authority prop conspiracy, whose vindictive nature had weight supports the govern party bias led him to threaten the lives two when a seeks osition that 636) (Tr. agents had his of a witness’ ment through evidence extrinsic —had years statement, give sentence reduced to twelve as he had must first the witness the supplied deny hoped. Flores —who had over opportunity explain that state 613(b) $500,000 Vega for ment, strictly worth of though Rule is not even Marzano, 537 distribution —had been sentenced to six applicable. States v. United (7th Cir.1976), custody. ty months in Yet Betts —a courier participation conspiracy ended 50 L.Ed.2d 749 whose April § a sentence of at least at 479-80 1989—faced 3 Louisell & Mueller case, possibly long as life. anticipat 360 months and Sassi’s & n. 40 tenced, granted Vega yet had been reduction Vega's had not been reduced sentence against Betts and the Lanes. when he testified months. However, by sen- the time the defendants were Judge twenty Guerrero, Foreman remarked that in his bench, years on the he had Cir.1990). never faced a 267-68 The Sentencing (Betts Sentencing more draconian situation Guidelines leave little room mercy, 20); nonetheless, judge Tr. believed him- Betts received the full benefit of the district authority to be self without to consider the judge’s limited discretion when he was sen departure downward that Betts’ counsel very tenced bottom of sentencing (Betts urged 5, 14, 20, 26). Sentencing Tr. range.12 Although acknowledge we likewise the rela- sentence, tive harshness of Betts’ we believe III. CONCLUSION that the district court’s conclusion was cor- foregoing reasons, For the we affirm the rect. Randy Lane, convictions of Judy Lane, and compelled lengthy What sentence in Edward Betts and likewise affirm Betts’ sen- Betts’ case provision was the career offender tence. Sentencing Guidelines. See United Commission, Sentencing States Guidelines AFFIRMED. Manual, (Nov.1991). § 4B1.1 provision That

implements express CUDAHY, command Con Judge, Circuit concurring. gress that defendants who are convicted of I am reluctant to separately write because drug-related prison offenses receive terms at agree I without reservation with almost all of statutory or near the maximum majority’s thoughtful thorough opin- previously have been convicted of two or ion. But I find the issue of admissibility 924(h). more such § offenses. 18 U.S.C. pounds marijuana the sixteen and relat- prior drug-related Betts had three convic paraphernalia against the Lanes to be 1988; thus, tions: Guide perplexing. compelled lines section 4B1.1 a thirteen-level majority concludes that the admission increase his offense level from 24 to of that evidence is erroneous. If that is the producing sentencing range of 360 months case, I am troubled the conclusion that adjustment, to life. Absent that the sentenc the error is Supreme harmless. The Court ing range fifty-one sixty- would have been has, course, appellate made clear that an months, three range much keeping more in court treat an error as harmless where Vega with the sentences and Flores ultimate the evidence of guilt, the defendant’s error ly Flores, received. But although aside, overwhelming. is See Milton v. Wain their conspiracy involvement in the was un wright, 371, 2174, 92 S.Ct. 33 deniably extensive, type more lacked the of 1 point L.Ed.2d The is that where criminal triggered record which the career the untainted guilt evidence of is so over provision Thus, offender in Betts’ case. de whelming jury that a help couldn’t but con spite significant the disparity between Betts’ vict, it extremely is any doubtful that sentence and error those and Flores re ceived, may have any been committed made powerless the district court was to majority depart difference. The here from the finds the inde range. Guideline United Fonville, pendent (4th guilt 781, sufficiently evidence of to be 5 F.3d 784 Cir. 1993), (U.S. overwhelming petition cert. render the error Jan. harmless. for filed 1994) (No. 93-7612). Maj.Op. me, See See also 760-61. This United States troubles LaSalle, v. Cir.1991); because it seems 218 to me that in certain cases that, United States v. McDougherty, willing 920 courts are long F.2d conclude as (9th Cir.1990), denied, 576 cert. 499 are convinced U.S. the defendant is 111 (1991); guilty, S.Ct. 113 any L.Ed.2d 227 Stephens error is harmless. v. Cf. Edwards, Miller, (7th Cir.1994) see United States v. 1001-1002 — (7th Cir.1991), denied, 1398 J., (Cudahy, result, dissenting). U.S. As a the -, 112 S.Ct. expansive rights code of afforded criminal provision 12. The career offender resulted in the the district court also sentenced to 360 months. Lane, sentencing range same whom (that smuggling into the they were they be boats designed to assure defendants — in the still America from South as “the United States as elusive fairly tried —becomes oregano, shipment of expan giant a Tantalus, equally night) was the of since grapes of “knowledge and requisite pre the most cases lack rule in then error sive harmless drug a obtaining of intent,” from cannot be convicted defendant criminal vents The v. is element. United States intent an the code.” of which from offense any benefit Cir.1990). similarly it this case make Pallais, F.2d circumstances the nature knew that the defendants obvious admitted, erroneously is evidence Where in event are cargo, and their all is said “when required unless trial new is knowledge or intent. they lack claiming that is conviction done, [appellate court’s] my reserva expressed I have earlier While jury, or not influence error did that the theory, especially this entire tions about Kotteakos v. slight effect.” very are not “knowledge intent” where cases States, Kramer, United States disputed, see (1946). Further, L.Ed. (7th Cir.1992) J., (Cudahy, 479, 492-93 merely there whether “cannot inquiry our — U.S. -, concurring), cert. result, apart from support the enough to was (1992), the law L.Ed.2d 533 rather, It is by the error. phase affected clearly it. embraces this circuit had substan- so, the error itself even whether grave so, left in if one is If influence. tial knew Thus, that the defendants Id. stand.” doubt, cannot the conviction was, government showed marijuana what case, stash of of this In the context pounds of it they had sixteen jury mind, quite my marijuana, at least majority opinion in 1992. The house their prose- plus to the a solid lends probative and ought to have this evidence concludes that ques- is a close But while cutor’s case. light such it came because been excluded majority ultimately agree tion, I charged conspiracy. The long time after guilt independent evidence that the that, prior convic- majority’s theory is unlike overwhelming to find —in this sufficiently the defen- drug possession, what tions for was harmless. the error case—that conspiracy is not possessed dants after token, I harbor some But, (or probative) the same of what less probative at least this evi- conspiracy. the introduction whether during doubt intended they knew or erroneous in seen as even be dence should compelling. that distinction I do not find subject of Rule 404 The the first instance. theory suggests that the defendants The pur- course, is, evidence. character eigh- what have learned 404(b) prohibit the use is to pose of Rule conspir- the date months between teen prove the bad acts evidence other bad drugs found time the acy and the his or her re- accused and character of Compare 2 N. Weinstein Jack their house. things. And the to do bad sulting propensity Evi- Berger, A Margaret Weinstein’s & of other use of evidence rule excludes (“It ¶ (1992) dence, matter not does 404[08] be crimes would those where crimes prior or proffered act occurred whether the But such person’s a character. prove used to long as charged so subsequent crime introduced in admissible evidence is fact is consequential relevancy propositions, facts and prove other order to shown.”). majority correct if the is But even rule, enumerated are some of which is inadmissi- that this evidence concluding in character. which do involve intent, it knowledge and is still prove ble the mari court admitted Here district being long used as it is not admissible so category of juana the omnibus under stash character and bad prove the defendants’ theory is that “knowledge and intent”. The drugs. trade in resulting propensity to their proving government has the burden may evidence of this case this On the facts what knew that the defendants business, ongoing which an tend to show marijuana. if crimi So importing were charged conspiracy. one time involved laboring misap under the nal are defendants that some to me evidence speed And it seems cargo in their prehension that drug trafficking principal one’s is his or her The distinction between drugs evidence of may occupation quite probative as a wheth “business” and rank character evidence admittedly is a participant particular er he or she a fine one—and perhaps a a non- Ultimately, existent one. conspiracy, apart generalized may distinction from concerns be too fine to allow the admission of the person’s about the “character”. As the Sec marijuana stash in this case. But I because Viserto, ond Circuit noted in United States v. (reluctantly) agree majority with the (2d Cir.), denied, cert. error in harmless, this case would have been (1979), 62 L.Ed.2d 52 I do not feel the need to question resolve this business,” “narcotics is a and evidence that greater certainty. defendants were the business at one time is relevant to show that in it holding,

at another. In so the Second Circuit showing

insisted that that a defendant is

engaged in drug trade “is not a mere

showing of bad character.” Id. See also Carson,

United States v.

(2d Cir.), America, UNITED STATES Of majority opinion The itself states almost as Plaintiff-Appellee, much, indicating possession that the Lanes’ pounds marijuana of the sixteen and relat paraphernalia “certainly suggests Russell PREVATTE and Robert A. they may have continued or resumed mari Soy, Defendants-Appellants.

juana through distribution ... [oth channels Nos. 92-3535. charged er than conspiracy].” Maj.Op. at 758. Appeals, States Court of Seventh Circuit. question pose I would then is whether continuing conduct of the narcotics busi- Argued June 1993. precisely thing having ness is the same Decided Feb. drug-oriented character resulting per- and a propensity sonal trafficking. for narcotics my way thinking

To there abe differ- introducing

ence between evidence of a

rape person that a propensity has a (which rape plainly

to commit is forbidden 404(b)), showing

Rule person, that a particular character,

without reference to his engaged conducting drug business basis, continuing first with one set of con-

spirators and later others. While the

rule forbids the use of evidence of a defen- rapist

dant’s “character” as a to infer that he rape question, perhaps

committed the it is

a different jury matter to ask the to infer being

from the continuing defendant’s

illegal participated business that he

conspiracy least, question. At the use of

“continuing illegal business” evidence seems showing me somehow fairer than a mere resulting

of character and propensity

commit a crime.

Case Details

Case Name: United States v. Edward B. Betts, Randy J. Lane, and Judy K. Lane

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 15, 1994

Citation: 16 F.3d 748

Docket Number: 92-2864-92-2866

Court Abbreviation: 7th Cir.