Case Information
*1 Before M ANION , R OVNER , and H AMILTON , Circuit Judges . R OVNER , Circuit Judge
. Tracy Conley was ensnared in a now familiar government set up in which a government ac- tor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one un- armed guards). Conley took the bait and ended up with a sentence of 180 months’ imprisonment on drug distribution and weapons charges. He moved the district court for ac- quittal or a new trial and when that was denied, appealed the decision to this court. We affirm.
I. Conley arrived at his workplace on November 1, 2011, only to find that he could not work because of a malfunc- tioning piece of machinery. He started to drive back to his girlfriend’s house, but in a second stroke of bad luck, found that he did not have enough gas or money to purchase gas for the trip. While stopped at the gas station, Conley encoun- tered two acquaintances, David Flowers (David) and Anwar Trapp (Trapp). [1] According to the evidence taken in the light most favorable to the government, as we must after convic- tion by a jury ( United States v. Longstreet , 567 F.3d 911, 918 (7th Cir. 2008)), David and Trapp picked up Conley and brought him back to Anthony Adams’ basement to discuss a plan to rob an illegal drug stash house, a plan orchestrated by Myreon Flowers (Myreon).
Unbeknownst to Conley, Myreon, or anyone else in the basement meeting, there was no robbery to be had. It was, instead, a sting set up by the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms and Ex- plosives (ATF). Earlier, on October 25, 26, and 31, an FBI co- operating source and an ATF undercover agent met with Myreon to discuss and plan a stash house robbery. The un- dercover agent, posing as the disgruntled employee of drug kingpin, gave Myreon the tip that a drug-king boss had a stash house where there would be at least fifty kilograms of cocaine guarded by one unarmed and two armed men. Myreon developed a plan involving at least three armed robbers who would tie up the stash house guards and steal the cocaine.
On October 31, Myreon met with his brother, David, and his cousin, Trapp, at a friend’s apartment and told them about the opportunity to rob the stash house. The three men discussed recruiting Adams because he had a gun. The next day, November 1, Trapp, David, and Myreon found Adams and discussed plans with him in the basement of his house. Cell phone records confirmed calls between Adams and Da- vid at this time.
Trapp testified that in that basement meeting Myreon explained to Adams that “he had this one white guy that got a lick [robbery] for them to go on for fifty kilos of coke.” A. 0202. [2] After some discussion of the robbery plan and the need for more participants, Adams said that he had someone in mind who could help, and he, David and Trapp left Ad- ams’ house to pick up the defendant who was a few blocks away. [3] Prior to this point, Conley was not involved in the conspiracy.
According to Trapp, he, Myreon, David, Adams, and Conley then reunited, again in Adams’ basement, to discuss the robbery. Conley, of course, had a different version of the story—one that involved smoking marijuana and discussing some work gutting a house. But once again, on a motion for acquittal or new trial, we take the facts in the light most fa- vorable to the government, which in this case come largely from the testimony of co-conspirator Trapp and corroborat- ed in many instances by other evidence and testimony. At this final basement meeting, Myreon passed along what he had learned from “the white guy”—that the fifty kilos were being stored in a garage guarded by three Mexicans, two of whom had guns. Trapp understood that Adams and Conley would be the ones “that actually do the robbery.” A. 0208. The group decided that they needed one more robber and one more gun to carry out their plan.
In response to their questions, Myreon told Adams and Conley that they would get two to three kilograms of co- caine apiece for assisting with the robbery. Trapp also testi- fied that Adams and Conley wanted to know how Myreon knew the white guy, whether he could be trusted, and what was going to happen to him after the robbery—that is whether “we gonna leave him alone or we gon [sic] pop [shoot] him.” A. 0210. Myreon said that nothing would hap- pen to “the white guy.” The group then agreed to meet at 6317 S. Mozart in a few hours before dispersing.
Trapp testified that following that meeting, he and David dropped Conley off where they had picked him up. Trapp then called his cousin, Dwayne Jones, and asked to meet him at 6317 S. Mozart because “it [was] about to go down.” A. 0212. Trapp and Jones both testified that they then met with David and Myreon at that address and that the four of them (Conley was not present) discussed the robbery, including the fact that others would also be involved.
Based on their plan, the four men (not including Conley) drove to a nearby Lowe’s hardware store to procure supplies for the robbery, including a walkie-talkie set to communicate with each other during the robbery, and blue latex gloves to ensure that they did not leave fingerprints behind. Jones tes- tified that during the drive back to Mozart Street, he and Myreon had a disagreement about the fact that the latter had told the men who would actually be executing the robbing that they would each only get two kilograms of cocaine. Jones did not think that was fair as those were the three in- dividuals who would be assuming the greatest risk by going into the garage to get the drugs. Myreon, however, said that the men had already agreed to the amount.
The undercover FBI agent arrived at 6317 S. Mozart at around 1:45 pm and recorded the conversations. From ap- proximately 1:45 until 2:30 p.m., Myreon, David, Trapp, Jones and the agent discussed plans for the robbery while waiting for Conley, Adams, and a third man, Rudy Space, to arrive. As Myreon explained to the agent, earlier that morn- ing he had met with these individuals who were going to actually execute the robbery, and had discussed the possibil- ity of having to shoot the armed guards. According to the recording, David obtained a gun from inside the house and Trapp hid it inside of Myreon’s white work van.
Eventually, Conley, Adams, and Space arrived at the house on Mozart Street. Adams retrieved an item (the gov- ernment surmises that it was likely a gun) out of his trunk and then followed Conley and Space into the white work truck. Photographs of the interior of the van showed that it was full of tools and equipment with little space for three adult men to sit.
Trapp testified, and surveillance data confirmed, that af- ter the three men entered the white work van, Trapp ob- tained a silver gun from a man named Woody. Trapp wrapped the gun in his sweatshirt and handed it to Myreon who was sitting in the driver’s seat of the white work van. Myreon took the gun and returned the sweatshirt. A photo- graph of the toolbox in which the gun was later deposited showed that the silver gun ended up at the bottom of the box, beneath two other guns, neither of which was silver. The government uses this as evidence that someone (but we do not know who) moved the guns around while they were in the back of the work van, and surmises therefore that an- yone in the cramped van would have seen and thus had knowledge of the guns.
Myreon drove the van with the undercover agent, Ad- ams, Space, and Conley to meet up with others at a gas sta- tion and then drove to a nearby forest preserve where Myre- on announced that Adams, Conley, and Space would get out of the work van and into another van to head to the location of the stash house. The surveillance video showed Adams, Conley, and Space exiting the work van and immediately entering the undercover agents’ van.
Almost immediately thereafter, the agent gave the arrest signal and Conley and the other co-conspirators were taken into custody. As the arresting officer approached Conley, the latter removed the blue surgical gloves that he had been wearing and discarded them and then started crawling away from the van.
After the arrests, law enforcement officers found the walkie-talkies and a toolbox containing three loaded guns. Conley’s fingerprints were not found on any of the guns or the toolbox. During Conley’s post-arrest interview he admit- ted that he went to the house on Mozart with Adams and Space, but stated that he had put on the blue surgical gloves as a joke and that they were driven to a forest preserve where someone handed him a tool case. The interviewing officer stated that Conley got angry and agitated when ques- tioned about the toolbox.
The government charged Conley with (1) conspiracy to
possess with intent to distribute more than five kilograms of
a controlled substance, in violation of 21 U.S.C. § 841(a)(1);
(2) attempt of the latter; (3) possessing a firearm in further-
ance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924 (c)(1)(A); and (4) being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). A jury found Con-
ley guilty on all counts. Conley moved for post-trial relief
seeking a judgment of acquittal or a new trial under Fed. R.
Crim. P. 29 and 33, respectively. Conley’s claims, which he
repeats here, were that there was insufficient evidence to
convict him beyond a reasonable doubt, and that Trapp’s
testimony was unreliable and should not have been credited
for the purposes of establishing the elements of the offense.
At the district court’s request, the parties also briefed the
application of this court’s then-recent decision in
United
States v. Mayfield
,
The district court sentenced Conley to 180 months’ im- prisonment—120 months on the conspiracy, attempt and felon-in-possession convictions, to run concurrently, and 60 months of imprisonment on the conviction for possession of a firearm in furtherance of a drug trafficking offense, to be served consecutively, as required by statute. Conley’s co- conspirators, all of whom entered into plea agreements, re- ceived between 46 and 104 months, the latter for Myreon, the ringleader of the conspiracy. Jones and Trapp testified against Conley under a plea deal in which they were each promised a dramatically reduced sentence in return for their testimony.
II.
We review the district court’s denial of a motion for ac-
quittal de novo, taking the evidence in the light most favora-
ble to the government, and granting the motion only where
no rational jury could have found the defendant guilty be-
yond a reasonable doubt.
United States v. Betts-Gaston
, 860
F.3d 525, 533 (7th Cir. 2017). If there is a reasonable basis in
the record for the verdict, it must stand.
United States v.
Moshiri
,
A. The conspiracy charges.
Conley argues that the government failed to meet its
burden of establishing sufficient evidence to support his
conviction on the conspiracy charges and thus the district
court erred by denying his post-trial motion for acquittal. To
sustain a conviction for conspiracy under 21 U.S.C. § 846, the
government had
to prove
the
existence
of
a conspiracy to possess with intent to distribute a controlled
substance and that Conley knowingly or intentionally be-
came part of the agreement.
United States v. Salinas
, 763 F.3d
869, 877 (7th Cir. 2014);
United States v. Mire
, 725 F.3d 665,
678 (7th Cir. 2013). Similarly, to sustain a conviction for at-
tempt, the government had to prove that Conley intended to
possess cocaine with the intent to distribute it and knowing-
ly took a substantial step toward that goal.
United States v.
Fiedeke
,
Although it is true that there were no smoking guns with Tracy Conley’s name on them in this trial, the government set forth sufficient evidence for a jury to conclude that Con- ley participated in the conspiracy. The strongest parcel of evidence came from Trapp’s testimony about the November 1, 2011 strategy and planning meeting before the attempted crime. Trapp testified that on that date, the conspirators, in- cluding Conley, met in a basement to discuss the robbery. According to Trapp’s testimony, Myreon told the men about his encounter with the man who tipped him off about a Mexican cartel’s stash house filled with 50 kilograms of co- caine. Myreon conveyed that three men (two of them armed) would be guarding the drugs. The group together decided that they would need another person, Space, to safely carry out the robbery. Trapp testified that he understood that Con- ley, Adams, and the other “guy” (Space) were “gon [sic] be the one[s] that actually do the robbery.” A. 0208. Trapp testi- fied that the group together decided that they needed more guns as one would not be enough. Trapp also testified that “Conley and [Adams] wanted to know like how did Myreon met this guy and do we trust him, what’s gon [sic] happen with him after everything is finished … what we gon [sic] do to him, like if we gonna leave him alone or we gon [sic] pop [shoot] him.” A. 0210 Just as with Shakespeare’s Rosencrantz and Guildenstern, the storyline does not make explicitly clear which conspirator, Conley or Adams, made which statement. Trapp’s testimony, however, was that both Con- ley and Adams were asking questions about Myreon’s source of information and that both were present for the dis- cussion of the need for a gun and deliberations about whether the government agent would be killed. Although it is true that it would have been stronger evidence of Conley’s participation if we knew that he had been a vocal participant in the planning. Nevertheless, Trapp’s testimony clearly es- tablished that Conley was part of the conversation and un- derstood what was being said and the nature of the plan. It does not much matter which words came from him and which from his co-conspirators provided that he knew of the existence of the conspiracy, knowingly or intentionally agreed to become part of it, and took a substantial step to- ward that goal by entering the van and donning the gloves. The evidence is sufficient to show that he did.
Trapp was, of course, a convicted felon and testifying under a plea deal that would greatly reduce his potential prison sentence, but the jury was entitled to credit his testi- mony and we cannot say that no reasonable jury could have done so. Much of his testimony was corroborated by other evidence or testimony. For example, Jones testified that he heard about the same basement meeting from Myreon and David; phone cell site records corroborated Trapp’s testimo- ny about the location of various conspirators at the times he had specified. And those same records corroborated his re- ports of contacts between conspirators, and other records corroborated the addresses of various defendants and their locations as described by Trapp. In addition, after being ar- rested, Conley himself admitted to having been present at the basement meeting (although he claims they discussed a cleaning or construction job). The government also had a re- cording from November 1, 2011 in which Myreon described the basement meeting and in which other conspirators re- ferred to the roles of their co-conspirators, including Conley.
Moreover, the jury had more than just Conley’s mere presence with the conspirators upon which to convict. They had Conley’s own movements and words which added evi- dence to the mix. Conley got into the work van, donned la- tex gloves, and then transferred to the next van which was supposed to take him to the stash site. He also confessed to law enforcement that he had attended the November 1 basement meeting. See United States v. Johnson-Dix , 54 F.3d 1295, 1302 (7th Cir. 1995) (“when acts in furtherance of the conspiracy were committed, a defendant’s presence, along with other evidence indicating that the presence or act was intended to advance the ends of the conspiracy, is sufficient to establish the participatory link.” )
Circumstantial evidence, standing alone, can suffice to
support a conspiracy conviction.
United States v. Goree
,
In addition to moving for acquittal, Conley also asked the
district court for a new trial pursuant to Federal Rule of
Criminal Procedure 33. That rule provides that a trial court
“may vacate any judgment and grant a new trial if the inter-
est of justice so requires.” Fed. R. Crim. P. 33(a). This court
reviews a district court’s denial of a motion for a new trial
under Rule 33 for an abuse of discretion.
United States v.
Flournoy
,
Conley’s motions for acquittal and for a new trial are based on the same claims, that the government failed to prove the elements of the offenses beyond a reasonable doubt—in other words that the verdict was against the weight of the evidence. It is true that the district court could consider Trapp’s credibility while considering his motion for a new trial, and the district court noted just that. United States v. Conley , No. 11-CR-779-6, 2015 WL 394012, at *4 (N.D. Ill. Jan. 29, 2015). Conley appears to argue that the dis- trict court did not properly consider Trapp’s credibility un- der the standard for a new trial. The district court set forth the proper standard and determined that there was suffi- cient evidence to support the conviction. There was no need for the district court to engage in a second end-to-end review of the same evidence that it used in determining sufficiency under the motion to acquit.
Overturning the jury’s determination on Trapp’s credibil-
ity would require the district court to make the exacting and
rare determination that his testimony was incredible as a
matter of law.
United States v. Hayes
, 236 F.3d 891, 896 (7th
Cir. 2001). Such a determination is usually reserved for ex-
treme situations wherein, for example, “it would have been
physically impossible for the witness to observe what he de-
scribed, or it was impossible under the laws of nature for
those events to have occurred at all.”
Id.
Under ordinary cir-
cumstances, a defendant who has received a reduced sen-
tence in exchange for his testimony does not present such an
extreme situation, particularly when, as was the case here,
the jury was informed of the agreement and could weigh the
implications of it along with credibility. A finder of fact is
entitled to believe the testimony of even the most dishonest
of witnesses.
United States v. Algee
, 309 F.3d 1011, 1016 (7th
Cir. 2002). After all, just as a broken clock is correct twice a
day, a lying felon might also speak the truth at times. In
sum, this was not one of those rare instances in which the
evidence was so speculative that justice demanded a new
trial. See e.g.,
Peterson
,
B. The firearms charges.
In addition to returning a finding of guilt on the conspir-
acy charges, the jury also found Conley guilty both of pos-
sessing a firearm in furtherance of a drug trafficking crime
and of being a felon in possession of a weapon. As with the
conspiracy charges, Conley argues that the government
failed to meet its burden of establishing sufficient evidence
to support his conviction on these charges. In order to con-
vict Conley for possessing the firearm during a drug crime,
the government had to prove beyond a reasonable doubt
that the defendant possessed a gun and used it in relation to
a drug offense. 18 U.S.C. § 924(c);
United States v. Duran
,
We agree with the district court that the evidence of ac- tual or constructive possession was meager. The government presented no evidence that Conley handled any weapons. His fingerprints did not appear on any firearms or the toolbox. The government argues instead that the guns went into the toolbox in a certain order but were in a different or- der when the police seized them, indicating that they had been moved around in the back of a crowded van in which three grown men, including Conley, were squeezed one on top of another. If the guns had been moved, the government implies, Conley must have seen them. They support this im- plication with Conley’s agitated behavior when questioned about the toolbox. This is a drop of circumstantial evidence indeed, but not more. More convincing is the government’s argument that Conley was present for the discussion of the stash house raid which included a description of the armed guards who were expected to be protecting the stash, and the consequential need for firearms. As the government said in closing and argues in its brief, “You can’t bring a knife to a gunfight.” (Brief of the United States at 27). But that is proof that Conley participated in a conspiracy in which fire- arms were used. It is not evidence that Conley possessed, either actually or constructively, a firearm. And if the basis for Conley’s conviction on this count is his participation in a drug conspiracy in which firearms were used, that kind of guilt can be proved through the Pinkerton theory of liability.
Under a
Pinkerton
theory of liability, a defendant is liable
for the criminal conduct of co-conspirators where those
criminal acts (1) were reasonably foreseeable to the defend-
ants; and (2) occurred during the time that they were mem-
bers of the conspiracy.
United States v. Cruse
, 805 F.3d 795,
817 (7th Cir. 2015),
cert. denied sub nom. McClain v. United
States
,
Trapp testified that Conley was present at the meeting
where the co-conspirators outlined the plan for the robbery,
including a discussion of the fact that two of the stash house
guards would be armed, and that therefore they would need
firearms (and more than the one to which they then had ac-
cess). According to Trapp’s testimony, Conley was also ac-
tively involved in a discussion in which some members of
the group discussed whether the man who brought them the
information would be killed or not. For all of the reasons
outlined above, Conley was a part of the conspiracy. As a
member of the conspiracy, therefore, Conley can be held ac-
countable for the foreseeable use of the firearm in further-
ance of a drug trafficking crime. He could also be found
guilty as an aider and abettor, under the theory that even if
he did not bring the gun to the drug deal himself, he took
part in the plan knowing (beforehand—that is, with time
enough to withdraw) that a confederate would do so. See
Rosemond v. United States
,
As for the felon-in-possession charge, the government
was required to demonstrate that (1) Conley had a prior fel-
ony conviction, (2) that he possessed a firearm, and (3) that
the firearm travelled in or affected interstate commerce.
United States v. Sewell
,
C. Entrapment.
This leaves only Conley’s claim of entrapment for discus-
sion. The defense of entrapment, however, is inapplicable in
this case as it applies only when a government actor recruits
a defendant into a conspiracy. There is no defense to en-
trapment by a private individual.
United States. v. Morris
,
549 F.3d 548, 551 (7th Cir. 2008). Conley’s co-conspirators,
and not the government, recruited him. Conley tries to make
an end run around this clear precedent by claiming that he
was entrapped derivatively. Derivative entrapment occurs
“when a private individual, himself entrapped, acts as agent
or conduit for governmental efforts at entrapment.”
United
States v. Hollingsworth
,
III. We conclude with a word about the district court’s artic- ulated dismay with the prosecution of this stash house case. In its order, the district court questioned “the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution.” Conley , 2015 WL 394012 at *6. At sentencing the court stated that Conley’s sentence was “devoid of [] true fairness … and will serve no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this de- fendant and his community may have had.” A. 0068. Specifi- cally, the district court was dismayed that it was forced into a minimum sentence based on the government’s ability to control the sentence by manipulating the amount and type of drugs that were “in” the fictitious stash house.
The district court’s discomfort with this case echoes a
substantial body of criticism of similar stash house cases
both from this circuit and others. Beginning many years ago,
we criticized these cases as “tawdry,” noting in particular
how these operations are “directed at unsophisticated, and
perhaps desperate defendants” like Conley who easily take
the all-too-tempting bait put out for them by the govern-
ment. See
United States v. Lewis
, 641 F.3d 773, 777 (7th Cir.
2011). See also
United States v. Kindle
,
In this case, Conley may have been starting down a
straighter path, after a life filled with many poor choices. He
was gainfully employed, had obtained his GED, enrolled in
some college courses, and had skills in electronics and mar-
keting. But he was also an “unsophisticated and desperate”
target, so down on his luck that he did not have even
enough money to get home from work on the day he was
approached by his co-conspirators. See
Lewis
,
Notes
[1] David and Myreon Flowers were related and had the same surname, therefore we refer to each by his first name.
[2] References are to the defendant-appellant’s short appendix filed in this court.
[3] The government’s brief implies that Conley was at his house which was only a few blocks away from Adam’s residence. Conley maintains that he met them at a gas station. Whether Conley was at his house or at a gas station does not affect the resolution of this case.