UNITED STATES of America, Plaintiff-Appellee, v. Jwuan L. MORELAND, Antrio B. Hammond, Wesley S. Hammond, Susie A. Smith, Herbert D. Phipps, David J. Pitts, Bradley S. Shelton, Michael D. Weir, and Timothy Bailey, Defendants-Appellants.
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11-3146, 11-3319, 11-3321, 11-3367
United States Court of Appeals, Seventh Circuit.
Argued Sept. 28, 2012. Decided Dec. 3, 2012.
703 F.3d 976
The district court correctly determined that at the summary judgment stage, Kasten is entitled to a finding that Saint-Gobain had fair notice of Kasten‘s assertion of rights. Kasten alleges that he complained about the location of the time clocks on at least five separate occasions and that he notified his supervisors that he was contemplating bringing a lawsuit which he thought Saint-Gobain would lose. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992) (finding protected activity where an employee alleged that employer was “breaking some sort of law“). Such allegations must be credited at this stage. Further, during this time period Saint-Gobain‘s management was discussing the legality of the time clock location and acknowledged in emails that it might need to move them to insure compliance with wage and hour laws and compensate employees for time spent donning and doffing. In light of these facts, which must be viewed in the light most favorable to Kasten at the summary judgment stage, we conclude that a reasonable employer in Saint-Gobain‘s position would have received fair notice that Kasten was asserting rights under the
III. Conclusion
For the foregoing reasons, we REVERSE the grant of summary judgment in Saint-Gobain‘s favor and REMAND for further proceedings.
Bradley A. Blackington (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee United States of America.
Belle T. Choate (argued), Attorney, Choate & Haith, Indianapolis, IN, for Defendant-Appellant Jwuan L. Moreland.
Michael J. Donahoe (argued), Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Ap-
Jack F. Crawford (argued), Attorney, Crawford & Devane, Indianapolis, IN, for Defendant-Appellant Wesley S. Hammond.
John A. Kesler, II, Attorney, Kesler & Kesler, Terre Haute, IN, for Defendant-Appellant Susie Annette Smith.
Kenneth Lawrence Riggins (argued), Attorney, Indianapolis, IN, for Defendant-Appellant Herbert D. Phipps.
Jessie A. Cook, Attorney, Terre Haute, IN, for Defendant-Appellant David J. Pitts.
Laura Paul (argued), Attorney, Laura Paul, PC, Terre Haute, IN, for Defendant-Appellant Bradley S. Shelton.
Daniel P. Albers (argued), Attorney, Barnes & Thornburg LLP, Chicago, IL, for Defendant-Appellant Michael D. Weir.
Jeffrey A. Baldwin, Attorney, Voyles, Zann, Paul, Hogan & Merriman, Indianapolis, IN, for Defendant-Appellant Timothy Bailey.
Before POSNER, ROVNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge.
The nine defendants were charged with conspiracy to distribute large quantities of methamphetamine and marijuana (two of them were charged in addition with being felons in possession of firearms). All were convicted by a jury and given long prison sentences: Moreland 110 months, Smith 151, Bailey 216, Pitts 420, and the others life. Only one defendant, Shelton, was charged with a substantive drug offense; this is a further illustration, if any is needed, that conspiracy is indeed the prosecutors’ darling. We listed the reasons in United States v. Nunez, 673 F.3d 661, 662-64 (7th Cir.2012); see also Krulewitch v. United States, 336 U.S. 440, 449, 457 (1949) (Jackson, J., concurring); United States v. Jones, 674 F.3d 88, 91 and n. 1 (1st Cir.2012); United States v. Boidi, 568 F.3d 24, 29 (1st Cir.2009); 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(b), pp. 256-65 (2d ed.2003)—though we add that a prosecutor‘s putting all his eggs in the conspiracy basket can be a risky tactic, as we‘ll see.
The details of the conspiracy are not important, so we can proceed to the issues raised by the appellants. We begin with the issues common to all of them. The first concerns the government‘s use of wiretap evidence. That is permissible only if the government can show that wiretapping was necessary to its investigation because (so far as relates to this case) other investigative methods, such as the use of undercover agents and informants, telephone records, pen registers, trap-and-trace devices, the grand jury, physical searches, and physical surveillance, would not yield essential evidence.
The defendants complain about the judge‘s having in advance of voir dire excused several potential jurors who had notified the court that because of vacation plans, business commitments, or employment obligations it would be a hardship for them to serve on a jury in a case that might take a long time to try. In fact the trial lasted three weeks. Prospective jurors were told at the voir dire that it might last as long as five weeks, but the jurors who before the voir dire asked to be excused had been told only that they might be summoned for jury duty at some time during the month in which they would be on call. See United States District Court for the Southern District of Indiana, “Federal Jury Service Information: Stage 2: Notice of Jury Service,” www.insd.uscourts.gov/Jury (visited Oct. 31, 2012).
Federal criminal defendants are entitled to be tried by a jury “selected at random from a fair cross section of the community,”
The defendants further argue that excluding busy people from a jury violates the
The defendants also complain that excusing prospective jurors before the trial violated
Another issue common to all the defendants involves expert testimony. A law enforcement officer was permitted to testify as both a lay witness and an expert witness, and the defendants complain that this was improper. The witness, who was the DEA agent in charge of the investigation of the conspiracy, was called to testify about the meaning of code words used in intercepted phone conversations of the defendants—code words that he had learned the meaning of in the course of investigating this very drug conspiracy and code words commonly used in the drug trade that he had learned the meaning of in other investigations. About the first type of code word he was testifying from personal knowledge obtained in the investigation, and thus as a lay witness,
The defendants argue that the jury may have been overawed by the agent‘s testimony about his long experience investigating drug conspiracies. The party sponsoring an expert witness is entitled to lay his credentials before the jury, but there is a danger that “the jury might be smitten by an expert‘s ‘aura of special reliability’ and therefore give his factual testimony undue weight.” United States v. York, 572 F.3d 415, 425 (7th Cir.2009); see also United States v. Upton, 512 F.3d 394, 401 (7th Cir.2008); United States v. Flores-De-Jesus, 569 F.3d 8, 20-21 (1st Cir.2009). That was not a realistic danger in this case. Had the agent been testifying exclusively as a lay witness about the code words he had learned the meaning of in the course of his investigation of the defendants’ conspiracy, it would not have been improper to introduce him to the jury as an experienced investigator, rather than a novice listening to taped conversations of drug conspirators for the first time, any more than it is improper to ask an eyewitness whether he has good vision.
“Seamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses.” United States v. York, supra, 572 F.3d at 426. Telling the jury that a witness is both a lay witness and an expert witness and will be alternating between the two roles is potentially confusing—and unnecessary. The lawyer examining the witness need only ask him the basis for his answer to a question, and the witness will then explain whether it was his investigation of the defendants’
The judge, while allowing the prosecutor to elicit the fact that the agent had been determined in previous trials to be an expert on drug codes, told the jury that “when you hear a witness give an opinion about matters requiring special knowledge or skill, you should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean you are required to accept it. Give the testimony whatever weight you think it deserves, consider the reasons for the opinion, the witness‘s qualifications, and all of the other evidence in the case.” That was an appropriate instruction.
We turn now to the issues specific to particular defendants. We begin with Phipps‘s complaint that he was merely a buyer of meth from the conspiracy and not a member of it. The government argues that since he told his supplier, who was a member, that he was a retail dealer, he must have agreed with the conspirators to sell the drugs he bought from them to his retail customers, and that by so agreeing he joined the conspiracy. On three occasions (out of the six for which there is evidence) the supplier “fronted” Phipps, that is, sold to him on credit rather than for cash, implying trust that the government argues would not have been bestowed on someone who was not a member of the conspiracy.
Phipps argues that he never agreed with the drug ring to resell the drugs he bought from it even though both parties knew that he probably would be reselling at least some of them. He was a retail dealer. Reselling is what retailers, legal or illegal, do. And wholesalers know this. But knowledge of a buyer‘s intention to commit a crime with a supplier‘s goods doesn‘t imply an agreement between the buyer and the seller that the buyer do so. That knowledge, coupled with the supplier‘s having supplied the buyer with the means (in this case a supply of drugs) of committing the illegal act of retailing an illegal drug, could make him an aider and abettor of the buyer‘s crime but not, without more, a conspirator with the buyer. United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993) (en banc) (plurality opinion); United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964); United States v. Falcone, 109 F.2d 579, 581 (2d Cir.1940) (L. Hand, J.); but cf. United States v. Boidi, supra, 568 F.3d at 29-30; United States v. Parker, 554 F.3d 230, 236, 238-39 (2d Cir.2009). Conspiracy is agreement, and it takes two to agree. “A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.” United States v. Lechuga, supra, 994 F.2d at 349. If Phipps‘s supplier was indifferent to Phipps‘s intended use for the drugs, even if he knew that it was to resell them, he is merely an aider and abettor of Phipps‘s retail sale of illegal drugs and there was no conspiracy between them.
Not only is a sale by a wholesaler to a retailer consistent with an arms’ length relationship rather than being proof of a conspiracy to resell the drugs; repeated transactions between a seller and a
In United States v. Nunez, supra, 673 F.3d at 664, we suggested that the line might be drawn “between ‘contract’ conceived of as a purely arm‘s-length relationship and ‘conspiracy’ conceived of as a cooperative relationship—a relationship of mutual assistance.” See also United States v. Speed, 656 F.3d 714, 719 (7th Cir.2011); United States v. Townsend, 924 F.2d 1385, 1392 (7th Cir.1991). Pursuing that line of thought we distinguished between a spot contract, illustrated by a trade on a stock exchange, involving a minimal relationship because there is only the single transaction and the parties may not even be identified to each other, and the aptly named “relational contract,” such as a long-term requirements contract, which creates a continuing relationship flexible enough to adapt to changes of circumstance that could not have been fully anticipated when the contract was negotiated. See Charles J. Goetz & Robert E. Scott, “Principles of Relational Contracts,” 67 Va. L.Rev. 1089, 1092-95 (1981). So one way to understand a drug conspiracy would be as a relational contract among drug dealers. See United States v. Lechuga, supra, 994 F.2d at 349. But Phipps negotiated each meth purchase from the drug ring separately. The ring did not agree to supply Phipps with all his requirements of meth.
A variant or perhaps application of the relational-contract approach is to infer conspiracy from a sale on credit of illegal drugs in a quantity too great to be for personal consumption. For then the wholesaler relies on his expectation that the retailer will repay the loan by committing the crime of selling the illegal drugs that he‘s acquired, unless he thinks the buyer may not resell the drugs after all and instead repay the loan from some other source of income; maybe he is a “bulk purchaser ... planning to throw a huge party at which he would serve his guests cocaine.” United States v. Lechuga, supra, 994 F.2d at 348. But that would be a very rare case.
Since the creditor of an illegal business cannot sue his debtor, extending credit to him implies a significant degree of trust by the creditor-seller and a commitment by the debtor-buyer to resell the drugs so that he‘ll have revenue from which to repay his creditor. United States v. Nunez, supra, 673 F.3d at 665. As explained in United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir.2000), “a dealer who ‘fronts’ drugs to his customer depends for payment on the success of the resale venture, making it possible to infer that the dealer has agreed to participate in it: the dealer becomes at least a debt investor in the redistribution venture, if not an equity investor.” The parties have agreed to the resale of the drugs, and agreement to commit a criminal act is a criminal conspiracy.
This approach, which infers conspiracy from wholesale sales on credit, can be found in numerous cases in this and other circuits (though usually it‘s presented as an instance in which two factors of a multi-factor test for inferring a drug conspiracy—wholesales and credit—are present and suffice to satisfy the test). See, e.g.,
But the government, preferring a laundry list of factors indicative of conspiracy, does not argue for what we‘ll call the Nunez-Torres-Ramirez approach. It does cite United States v. Johnson, supra, 592 F.3d at 755-56, but fails to mention footnote 5 of the opinion, the only place in it where the Nunez-Torres-Ramirez approach is actually articulated.
The quantity of meth sold to Phipps over a four-month period—five to twelve ounces—doesn‘t by itself establish that his supplier knew that Phipps would be reselling the meth rather than consuming it himself and relied on that knowledge in deciding to sell to him on credit. Each ounce of meth would have supplied at least 75 doses. United States v. Cruz, 680 F.3d 1261, 1262 (10th Cir.2012); United States v. Pruett, 501 F.3d 976, 985 (8th Cir.2007), vacated on other grounds, 552 U.S. 1241, 128 S.Ct. 1473, 170 L.Ed.2d 294 (2008); United States v. Ruiz, 412 F.3d 871, 878 (8th Cir.2005). But that means that five ounces of meth might yield only 375 doses, which is three a day over a four-month period (or even fewer if some is stored for later use). There was testimony that a meth addict consumes up to 1.5 grams a day, which would mean that one ounce would supply the addict‘s needs for only 18 days, and five ounces for 90 days—three months rather than four. Phipps was a dealer but also a serious meth addict, so it‘s possible that he could have consumed all the drugs he bought. He sometimes fell behind on paying for the meth that he obtained on credit, and his supplier, in contemplating further drug loans, worried that Phipps might instead consume the meth and that the payments from his construction business (his day job) would fail to materialize or be diverted by him to the purchase of additional drugs for consumption. It‘s possible therefore that Phipps was just an unreliable purchaser from the conspiracy rather than a member of it. The government was skating on thin ice by failing to charge him with a substantive drug offense, for which the evidence was much stronger, rather than just with conspiracy.
Nevertheless his conviction must stand. The jury heard evidence that he indeed sold as well as consumed meth that he bought from the drug ring in quantity on credit. He was recorded asking his supplier for multiple ounces of meth on
The jury instructions were repetitive and confusing, and included an open-ended list of factors from which membership in a conspiracy could be inferred: “whether the transactions involved large quantities of controlled substances; whether the parties had a standardized way of doing business over time; whether the parties had a continuing relationship; whether a defendant had a stake in the outcome of the conspiracy; whether the parties had an understanding that the controlled substances would be resold; whether there existed a level of mutual trust between the parties; [and] any other factor you find relevant to your determination.” Notice that the list includes wholesaling but not credit, except that the last item in the list could include anything. (This circuit‘s recently amended pattern jury instructions disapprove the laundry-list approach to inferring conspiracy. Seventh Circuit Pattern Jury Instructions 5.10A, Committee Comment, pp. 73-74 (2012); see also United States v. Johnson, supra, 592 F.3d at 758; United States v. Colon, supra, 549 F.3d at 570-71.) But in addition the judge instructed the jury that it could infer conspiracy from “selling large quantities of controlled substances on credit,” or “repeatedly selling controlled substances on credit.” Of course Phipps did not sell on credit; he was the buyer. But the jury could find that he knew that his supplier would not sell him wholesale quantities of drugs on credit unless he agreed to resell them, and by thus agreeing with his supplier to commit a crime (the resale of the illegal drugs) he became a conspirator.
Weir, a defendant who like Phipps was a retail dealer prosecuted only for conspiracy, complains mainly about the seizure of $6655 in cash found during a pat-down search following a police stop of a car in which he was a passenger, and subsequent testimony that the cash was proceeds of a drug sale. The police had stopped the car for a minor infraction—Weir‘s failure to wear his seatbelt—and discovered that the driver had no documentation of the car‘s registration or insurance and only an “open title” to the car, meaning that the previous owner had by signing the title relinquished ownership. And the license plates were registered to a different vehicle. There was no indication of who the new owner was, but it probably wasn‘t the driver.
The police made Weir step out of the car and patted him down—which was not improper, Arizona v. Johnson, 555 U.S. 323, 331-32, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)—and discovered in one of his pockets a wad of bills and seized it. At trial Weir‘s girlfriend (the driver, who testified as a government witness in exchange for a lighter sentence) testified that the bills were indeed proceeds of a sale of drugs by him.
Weir argues that the seizure of the money violated the Fourth Amendment. At the time of the stop he was not suspected of any crime, and the mere fact of having thousands of dollars in cash on one‘s person has been held not to justify a seizure of it as suspected contraband or evidence of crime. United States v. Sokolow, 490 U.S. 1, 8-9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. $10,700.00 in U.S. Currency, 258 F.3d 215, 232 (3d Cir.2001); United States v. $405,089.23 in U.S. Currency, 122 F.3d 1285, 1290 (9th Cir.1997); United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 285 (6th Cir.1992). Law-abiding people sometimes carry large
Two members of the conspiracy—the girlfriend and the supplier—testified that Weir was a drug dealer. But the testimony about the $6655 found on him may have carried special weight with the jury; that Weir had been carrying that amount of money was an undenied and undeniable fact rather than something the pair of criminals who testified against him might have fabricated to get lenient treatment by the authorities. Whether the testimony about the cash was the difference between conviction and acquittal of Weir is very doubtful, however, and in any event his lawyer failed to object. Because he did not object the government had no opportunity to present evidence that the seizure was a reasonable incident of the stop of the car. The driver as we said had no proof of ownership, and in fact the car had been reported stolen, as the police discovered in the course of the traffic stop. They thus had probable cause to believe that Weir was traveling in a stolen car, and it was a reasonable surmise that the large amount of cash found on him was related in some way to the theft.
In any event, the seizure of the money was inevitable. The police impounded the car, as they were entitled to do since the driver lacked proof of owning it or otherwise being authorized to be driving it, and after impounding the car they conducted a routine, unexceptionable inventory search that revealed the presence in the car of digital scales, commonly used by drug dealers. The scales (which were introduced in evidence at the trial) would have also given the police probable cause to believe that the cash they had seized was indeed drug proceeds.
As with Phipps, however, so with Weir, there is doubt whether he was a member of the conspiracy. Like Phipps he bought an ounce or two of meth at a time, sometimes paying in cash and sometimes on credit. He argues that he “did not conspire with anyone. He bought drugs in order to feed his own addiction. He sold some of those same drugs that he bought to get money to buy the drugs to feed his habit.... [H]e was not a conspirator.” But as with Phipps, there was evidence that he purchased wholesale quantities of drugs on credit, agreeing to resell them in order to be able to repay his creditor.
Together with the other defendants who received life sentences as repeat drug offenders,
The sentencing guidelines recognize that criminals addicted to drugs are at risk for recidivism induced by their need to feed their habit. But the guidelines’ suggested solution to the problem is for the judge to extend the post-incarceration period of supervised release, rather than
Defendant Moreland was convicted only of being a felon in unauthorized possession of a gun. He complains about the judge‘s having mistakenly read to the jury a set of instructions containing a copy of the indictment that included a list of his felonies—despite his having stipulated that he was a felon in order to keep the details of his prior convictions from the jury. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
The judge had given the jurors a copy of the jury instructions containing the indictment before the closing argument so that the lawyers could refer the jurors to specific language and they could read along. Through a slip-up the version of the jury instructions placed on the jurors’ seats in the jury box when they convened to hear the closing arguments contained the original indictment rather than a version from which the record of Moreland‘s prior felonies had been excised. The closing arguments lasted two days. The trial recessed for the weekend and when the jury reassembled on Monday the judge read them the unredacted instructions. After reading the portion of the indictment that recited Moreland‘s prior felony convictions, the judge realized her mistake, collected the instructions, and gave the jurors new copies containing the redacted indictment to take back with them to the jury room for their deliberations.
As the evidence of Moreland‘s guilt was overwhelming, the error in revealing his previous felonies to the jury was harmless—and for the additional reason that those felonies (multiple drug-related felonies, resisting law enforcement, criminal recklessness, and receipt of stolen property) did not mention guns. This implies that had the jury been poisoned by learning of Moreland‘s crimes it would have convicted him of the drug conspiracy rather than of the gun crime. Instead it acquitted him of the former and convicted him of the latter.
Defendant Antrio Hammond makes the same argument as Moreland, but unlike Moreland he was convicted of participating in the drug conspiracy, and so the listing in the indictment of his prior felonies, which were drug-related, created a greater risk than in Moreland‘s case that the jury may have convicted him because he had demonstrated a propensity for committing drug crimes. But the evidence that he was a central player in the conspiracy charged in this case was overwhelming. The judge never read his prior felonies to the jury, moreover, as she had done with Moreland‘s prior felonies, and there is no indication that any juror, reading ahead in the indictment, discovered the nature of Hammond‘s prior felonies before the judge confiscated the unredacted version of the indictment.
Hammond‘s lawyer asked the judge to voir dire the jury to determine whether any jurors had read that version. The judge rightly refused, given the unlikelihood that any juror had read ahead
Bradley Shelton received a sentencing enhancement for possessing a gun in connection with a drug offense.
He attacks his life sentence on the ground that the prior drug felonies that qualified him for such a sentence were not separate criminal episodes, as
A minimal participant is a “defendant who [is] plainly among the least culpable of those involved in the conduct of a group.”
Smith asks for mercy mainly because of the family relationship, though she also cites her age (59) and ill health (one of her kidneys has been removed because of cancer). United States v. Powell, 576 F.3d 482, 499 (7th Cir.2009); United States v. Theunick, 651 F.3d 578, 592 (6th Cir.2011). She lacks a compelling case under either the guidelines or the sentencing factors in
The judgments are AFFIRMED.