Joshua Bowser, Christian Miller, and Frank Jordan were convicted as part of a large-scale prosecution of people associated with the Indianapolis Chapter of the
I. BACKGROUND
Following an extensive FBI investigation, in July 2012, a grand jury in Indianapolis returned an indictment against 42 people associated with the Outlaws, including Bowser. Miller and Jordan were added to the case later, along with seven others. Ultimately, a Second Superseding Indictment charged a total of 51 people with 49 criminal offenses. Nearly all of the accused pleaded guilty to all the charges against them. Bowser, Miller, and Jordan did not.
On September 5, 2013, Bowser pleaded guilty to ten crimes, including wire fraud, extortion, witness tampering, and conspiracy to distribute cocaine, but he pleaded nolo contendere to an eleventh charge for violating the Racketeer Influenced and Corrupt Organizations statute (“RICO”), 18 U.S.C. § 1962(c). In accepting Bowser’s plea, the district court noted that pleading nolo contendere allowed Bowser to refuse to admit that the Outlaws acted •as a criminal organization and thus maintain his membership in the group. But the court decided that this concern was outweighed by the time and expense saved by avoiding trial. At sentencing, however, the court denied Bowser a reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, noting his nolo contendere plea and his refusal to admit that the Outlaws were a criminal enterprise or to accept that others conspired with him. Bowser nonetheless received a prison sentence of 180 months, well below the calculated guidelines imprisonment range of 235 to 293 months.
Meanwhile, on September 24, 2013, Miller proceeded to a jury trial on allegations of racketeering. Miller’s defense focused on arguing that the government could not prove the robberies that it had charged as the predicate acts necessary for finding him guilty of a “pattern” of racketeering under § 1962(c). In particular, Miller argued that an incident where he confronted another Outlaws member, Bryan Glaze, about stealing from the Outlaws was not actually a robbery because Glaze knew what would happen as a result of him having stolen from the Outlaws.
According to testimony at trial,' Miller confronted Glaze at the Outlaws clubhouse because Glaze had stolen from the Club while performing his duties of ordering and collecting money from other members for Outlaws merchandise. During the confrontation, Miller pushed Glaze, and another Outlaws member pointed a gun at Glaze and told him they were not “fucking around.” Miller then demanded that Glaze turn over his jewelry and clothing with the Outlaws insignia. Altogether approximately 17 Outlaws were present. One of those present was asked at trial if Glaze turned over the items voluntarily or by threat of force and responded, “Oh, by threat.” The Outlaws also took Glaze’s personal items, including a television,
Lastly, on November 4, 2013, Jordan went to trial for conspiracy to distribute cocaine, 21 U.S.C. § 846, and unlawful use of a communication facility, id. § 843(b). His trial lasted three days, during which the jury heard testimony from numerous law enforcement officers involved in investigating his illegal activities and from two of his co-defendants, Hector Nava-Arredondo (“Nava”) and James Stonebraker. According to the trial testimony, Nava sold cocaine at Sidewinders, a bar in Indianapolis where Jordan was a bouncer, in exchange for providing cocaine to the bar’s owner. (Sidewinders might be described as an Outlaws hangout.) Both Jordan and Stonebraker sold drugs that Nava provided to them. The FBI became aware of Jordan’s potential involvement in drug distribution after wiretapping Nava’s telephone as part of the larger Outlaws investigation.
The government also played the jury several recordings of intercepted telephone conversations between Jordan and Nava. Before the recordings were played, Nava testified that Jordan would typically call him when “he needed drugs to sell to a client, a customer that he had.” The government then played a recording in which Nava asked Jordan, ‘You want some?,” and Jordan responded, “Yep, they just called me.” Nava explained that he understood Jordan to be referring to his customer wanting drugs. The government also played a call in which Jordan told Nava that he “need[ed] another biscuit,” which Nava understood to mean that Jordan needed 3.5 more grams, also known as an “eight ball,” of cocaine. There was also a phone call where Jordan told Nava that someone — who Nava understood to be Jordan’s customer' — was on his way, and Nava told Jordan to bring money and meet him on the street.
Nava testified that, based on these conversations, he believed that he had an agreement with Jordan to provide Jordan with cocaine for Jordan to distribute to Jordan’s customers. Nava explained that he provided Jordan with an eight ball of cocaine once per week — at a cost of $140 each — for approximately six months, until Nava’s arrest in 2012. (An FBI agent explained that, during the investigation in this case, the street value of an eight ball of cocaine was approximately $150, and that the typical dosage of cocaine is “less than a gram, maybe a 16th of a gram.”) Jordan usually paid cash, Nava said, but Nava also fronted him cocaine on two or three occasions. Nava also explained that he frequently fronted cocaine to another person, Abraham Flores, who would also sometimes give cocaine to Jordan to resell. Nava said that he occasionally shared the proceeds of his drug sales with Jordan. On cross-examination, Nava indicated that he did not care whether Jordan resold the cocaine or used it himself.
During Stonebraker’s testimony, he explained that he began purchasing cocaine at Sidewinders in 2010 after Bowser took him to the bar and asked the owner to introduce him to a cocaine supplier. Initially, Stonebraker and Bowser bought drugs from Flores, and Stonebraker would receive an eight ball two or three times
The jury found Jordan guilty of distributing cocaine and also specifically found him accountable for distributing 500 or more grams of the drug. After trial, Jordan moved for acquittal, see Fed.R.Crim.P. 29, on the basis that the government had presented insufficient evidence to sustain his conviction for conspiracy to distribute cocaine. In denying the motion, the district court emphasized that Nava had testified that he fronted Jordan cocaine two or three times and had agreed with Jordan that Jordan would resell drugs. The court also cited Nava’s testimony that over the course of six months Jordan frequently bought cocaine from him to resell, and Stonebraker’s testimony that he was told he could buy drugs from Jordan if Nava was unavailable.
At sentencing, the district court concluded, over Jordan’s objection, that he had a prior felony drug conviction, giving rise to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). The court then imposed the minimum prison term of 120 months.
II. DISCUSSION
Bowser, Miller, and Jordan consolidated their appellate briefing. Because the bulk of the issues raised in these briefs relate to Jordan, we begin there.
A. Jordan
Jordan first challenges the sufficiency of the evidence supporting his conviction for conspiracy to distribute cocaine. Where, as here, a defendant challenges the sufficiency of the evidence by moving for acquittal after trial, we will uphold the jury’s verdict if, viewing the evidence in the light most favorable to the government, any rational trier of fact finder could have found the essential elements of the crime beyond a reasonable doubt.
United States v. Molton,
Looking to the elements of conspiracy, the Supreme Court “has repeatedly said that the essence of a conspiracy is ‘an agreement to commit an unlawful act.’ ”
United States v. Jimenez Redo,
The district court appropriately summarized this case law for the jury using the buyer-seller instruction from pattern jury instructions developed by a committee appointed by this court.
See
Committee on Federal Criminal Jury Instructions for the Seventh Circuit, Pattern Criminal Jury Instructions of the Seventh Circuit 5.10(A) (2012),
available at
http://www.ca7. uscourts.gov/Pattern_Jury_Instr/7th_ criminal_jury_instr.pdf. According to that instruction, “a buyer and seller of cocaine do not enter into a conspiracy to possess cocaine with intent to distribute simply because the buyer resells cocaine to others, even if the seller knows that the buyer intends to resell the cocaine.”
Id.
at 73. Instead, “the government must prove that the buyer and seller had the joint criminal objective of distributing cocaine to others.”
Id.; see Brown,
Jordan insists that the government failed to meet its burden because it did not show that his dealings with Nava went beyond the relationship of a buyer and seller. He acknowledges that Nava interpreted their phone calls as an agreement for Jordan to resell the drugs, and that this relationship persisted for roughly six months, with Nava sometimes fronting Jordan cocaine, or sharing the proceeds of his drug sales with him. But he points to our admonition in
Brown,
Although we have not always been clear on what factors point to the existence of a conspiracy, we have stressed the need to “not lose sight of the larger picture — deciding whether the jury reasonably dis
Jordan asserts that his conversations with Nava could be interpreted differently, but Nava’s interpretation was not only reasonable but bolstered by additional evidence at trial. Stonebraker testified, for example, that he witnessed Jordan selling cocaine at Sidewinders, and that Nava told Stonebraker that Jordan received cocaine from him and that Stonebraker could get cocaine from Jordan if Nava was unavailable. Additionally, although Jordan maintains that buying cocaine at a rate of 3.5 grams weekly is consistent with personal use, according to the testifying FBI agent, that quantity, even spread over the course of a week, would be at the high end of the typical dosage for a single user. Moreover, there was evidence that Nava was not Jordan’s only supplier. We are persuaded that the trial evidence, viewed in the light most favorable to the government, was sufficient for a rational trier of fact to find Jordan guilty of conspiracy.
See United States v. Moon,
Jordan next seeks to undermine the government’s questioning of Stonebraker and Nava at trial, arguing that the prosecutor asked improper leading questions. In particular, he challenges this question to Stonebraker: “Going to the point where Hector Nava introduced you to Frank Jordan, yes or no, did Mr. Nava make any statements to you about people you could go to to get cocaine from, other than Mr. Jordan?” (Jordan quotes the end of this question as “other than Mr. [Nava],” asserting that the transcript’s use of “Jordan” is a misprint. In context, “Nava” might make more sense, but our resolution of this issue does not require us to settle this difference.) Stonebraker answered, “yes,” and then named Jordan and Flores as people he could get cocaine from if Nava was unavailable. Jordan asserts that this was the only testimony indicating that Nava’s customers could buy drugs from Jordan in Nava’s absence.
We review the court’s treatment of leading questions for abuse of discretion,
see United States v. O’Brien,
Jordan also challenges the district court’s decision to bar questions about Stonebraker’s 1974 felony conviction for heroin possession. As part of the Outlaws prosecution, Stonebraker pleaded guilty to multiple drug-distribution charges and received a 30-month sentence. But if convicted in an Indiana state court, Jordan argues, Stonebraker would have faced a mandatory 20-year sentence because of the earlier state felony. Jordan thus wanted to use testimony about the conviction to suggest Stonebraker was biased and argues that the decision barring this testimony deprived him of his Sixth Amendment right to confront Stonebraker.
We disagree. Jordan relies on
United States v. Martin,
In regard to his sentence, Jordan argues that the government failed to prove that he was convicted of a prior drug felony for purposes of the 10-year mandatory minimum under § 841(b)(1)(B). Under existing precedent, the existence of a prior felony conviction is considered a sentencing factor that may be determined by a judge.
United States v. Zuniga,
The government presented three pieces of evidence to prove the existence of Jordan’s earlier conviction. First, the government submitted a certified copy of a court record from Marion County, Indiana, showing that a person with the name Frank Jordan was convicted of cocaine possession in 2007. The government also submitted a computer printout from Marion County’s records system listing the same ease number, along with Jordan’s name, and a social security number and birth date matching those given in Jordan’s presentence report in this case. Finally, the government provided a police report related to the state conviction showing the charge, Jordan’s name, and the birth date listed in the court’s record system.
Jordan argues that this evidence was insufficient, noting that the documents contain hearsay and that the presentence
This argument is unpersuasive. First, as Jordan acknowledges, the rules of evidence are inapplicable to sentencing hearings, Fed.R.Evid. 1101(d)(3), so the use of hearsay evidence here did not amount to reversible error,
see United States v. Se-well,
B. Miller
Miller raises only one argument: that the government failed to prove that the incident where he and others expelled Glaze from the Outlaws amounted to a .robbery. The government charged Miller with violating 18 U.S.C. § 1962(c), which makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” The showing of a pattern of racketeering activity “requires at least two acts of racketeering activity,” 18 U.S.C. § 1961(5), and those acts can include robberies chargeable under state law,
id.
§ 1961(1);
United States v. Genova,
Miller argues that he and his fellow Outlaws did not commit robbery because, in his view, their demanding that Glaze turn over Outlaws items was separate from any displays of force. Miller also argues that this divestment of property was expected as part of removal from the Club. Miller admits, however, that “there was certainly overlap between the force
C. Bowser
Bowser, challenges only his sentence, first arguing that the district court erred by relying on the nature of his plea of nolo contendere to the RICO charge (Count 1 of the Second Superseding Indictment) to deny him a sentencing reduction for acceptance of responsibility. A plea of nolo contendere, Bowser notes, “admit[s] every essential element of the offense that is well pleaded in the charge” and thus “is tantamount to an admission of guilt for the purposes of the case.”
Lott v. United States,
Under U.S.S.G. § 3El.l(a), a district court is to provide a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The court here explained its reasons for denying the reduction as follows:
[W]hile Mr. Bowser has admitted his guilt to the underlying acts involved in Count 1, because he neither admits nor disputes his guilt in Count 1 through his nolo contendere plea, ... he’s not taken responsibility or accepted responsibility for his actions. Mr. Bowser has not admitted that the Outlaws Motorcycle Club was a.criminal enterprise. He will not admit and accept responsibility for the fact that others did conspire with him. He just says others in general. So the Court is not going to give the two level.
Bowser argues that everything in this explanation is simply a restatement of the nature of his nolo contendere plea. But we disagree. In our view, the court went beyond relying solely on the nature of Bowser’s plea by citing specific facts about how he refused to acknowledge the Outlaws as a criminal organization or identify his co-conspirators. Bowser insists that his actions can be explained by the fact that he views the Outlaws as his family, and as the district court explained in accepting his.plea, acknowledging the Outlaws as criminal would likely lead to his expulsion.
But because the district court evaluated the facts surrounding Bowser’s plea and made specific observations about his refusal to acknowledge his association with a criminal organization, we are not persuaded that the court committed reversible error in denying Bowser the reduction for acceptance of responsibility. Even a defendant who pleads guilty “is not entitled to an adjustment under [§ 3E1.1] as a matter of right.” U.S.S.G. § 3E1.1, cmt. n. 3; see
United States v. Dachman,
This analysis is in line with our approach recently in
Dachman,
Moreover, although Bowser emphasizes that he prevented the expense of trial, we have rejected the argument that a defendant is “entitled to the reduction because his nolo contendere plea saved the government and district court the time and expense of a long and complicated trial.”
United States v. Boyle,
Bowser also argues that the district court erred in imposing a condition of supervised release authorizing suspicionless searches of his person, home, and effects. The government confesses error, acknowledging that
United States v. Farmer,
We have considered the additional arguments presented in the appellants’ briefs,