United States v. Brian Wilbourn , 799 F.3d 900 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3715 & 13-3727
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN WILBOURN and ADAM SANDERS,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07-cr-00843 — Joan Humphrey Lefkow, Judge.
____________________
ARGUED APRIL 22, 2015 — DECIDED AUGUST 26, 2015
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Over a decade ago, federal author-
ities conducted an investigation of the drug trade at the
now-razed Cabrini-Green housing projects in Chicago. That
investigation, which centered on a drug conspiracy headed
by Rondell Freeman, yielded a thicket of defendants and
charges spanning a period of almost nine years. Altogether,
fifteen persons were charged, ten pleaded guilty, and five
2 Nos. 13-3715 & 13-3727
went to trial, including our defendants, Brian Wilbourn and
Adam Sanders.
At trial, Wilbourn and Sanders conceded that they sold
drugs at Cabrini-Green but claimed to do so as small-scale,
independent dealers and not as part of Freeman’s organiza-
tion. The jury disagreed and convicted them of multiple
charges, including participation in the conspiracy. Following
the trial, the district court vacated and granted a new trial on
several charges, including conspiracy, because the govern-
ment secured those convictions through testimony that it
had good reason to know was false. The government ap-
pealed, and we affirmed in United States v. Freeman, 650 F.3d
673 (7th Cir. 2011). On remand, the government elected not
to go forward with the vacated counts, and the district court
sentenced Wilbourn to 184 months and Sanders to 160
months on the undisturbed counts.
They have appealed and challenge several rulings of the
district court. For the reasons that follow, we affirm each of
the district court’s rulings except for three: we reverse the
court’s denial of Sanders’ motion to suppress and remand for
a new trial Sanders’ conviction under Count 32; we likewise
vacate Wilbourn’s conviction under Count 4 and remand it
for a new trial; and we vacate Wilbourn’s sentence and re-
mand his case to the district court to make new findings re-
garding the applicable drug quantity.
I. Background
Brian Wilbourn, Adam Sanders, and thirteen others were
charged with participating in a conspiracy to manufacture
and distribute narcotics and various related offenses. We
Nos. 13-3715 & 13-3727 3
covered extensively the details of the government’s case in
Freeman and recount here only those facts necessary to un-
derstand the issues relevant to this appeal. In short, the gov-
ernment alleged that the defendants, with Rondell Freeman
serving as the ringleader, formed a conspiracy to sell narcot-
ics at the Cabrini-Green housing project in Chicago. The
conspiracy involved approximately fifteen persons and ran
from 1998 until at least December 2007.
The government presented a bold case over the course of
the five-week trial. Utilizing video and audio clips, testimo-
ny from informants, and evidence culled from garbage pulls,
the government contended that Wilbourn and Sanders
served in leadership roles in Freeman’s conspiracy and not
as small-time, independent drug dealers, as they claimed in
defense. For the most part, the jury accepted the govern-
ment’s case and convicted both Wilbourn and Sanders on
multiple counts, including conspiracy.
What the jury did not know, however, was that a signifi-
cant aspect of the testimony of Seneca Williams—one of the
government’s key witnesses—was false. Williams had testi-
fied that Wilbourn played a prominent role in the conspiracy
and that he frequently witnessed him engaging in drug traf-
ficking activities at Freeman’s penthouse apartment. The
problem with Williams’ testimony was that the penthouse
apartment was only used during 2003 and Wilbourn could
not have been present because he was in jail for the whole of
that year. Still more problematic, the government elicited
this testimony (and argued a variation of it in closing argu-
ment) even after the defense counsel had presented it with
reliable information demonstrating that Wilbourn spent the
whole of 2003 in jail and so could not have been present.
4 Nos. 13-3715 & 13-3727
After the trial, the district court partially granted the de-
fendants’ motion for a new trial and vacated several counts
against Wilbourn and Sanders, including the conspiracy. We
affirmed and remanded the vacated counts for a new trial.
Freeman, 650 F.3d at 683–84. On remand, the government
elected not to go forward with the vacated counts and the
district court proceeded to sentence the defendants on the
undisturbed counts.
Wilbourn received a 184-month sentence (reduced from
200 months) based on his convictions on five counts: posses-
sion with intent to distribute narcotics (Counts 3, 12 and 13;
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2); using a telephone to
facilitate a conspiracy (Count 4 or “phone count”; 21 U.S.C.
§ 843(b)); and being a felon in possession of a firearm (Count
7; 18 U.S.C. § 922(g)(1)).
Sanders received a 160-month sentence for his convic-
tions on five counts: using a telephone to facilitate a conspir-
acy (Counts 19, 20, 21, and 30 or “phone counts”; 21 U.S.C.
§ 843(b)) and possession with intent to distribute narcotics
(Count 32; 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2).
The appeal addresses five discrete issues: (1) whether
drugs seized from a car in which Sanders was a passenger
should have been suppressed; (2) whether the phone counts
should be vacated where they are premised on a drug con-
spiracy that has been dismissed; (3) whether the district
court correctly handled premature jury deliberations; (4)
whether the district court should have granted a mistrial
where the government entered evidence against Wilbourn
after it had rested its case against him; and, (5) whether the
court erred in sentencing Wilbourn based on relevant con-
duct.
Nos. 13-3715 & 13-3727 5
We address the facts relevant to each of these issues.
A. Car Search
Throughout the investigation, agents of the Bureau of Al-
cohol, Tobacco, Firearms and Explosives (ATF) maintained
surveillance on Freeman’s residence at Sheridan Road in
Chicago. During their surveillance, which eventually includ-
ed a wiretap of Freeman’s telephone lines, the agents gath-
ered evidence of drug trafficking conducted at the Sheridan
Road residence by numerous individuals. Over a period
covering almost two years, the police conducted more than a
dozen trash pulls and recovered plastic baggies containing
the residue of various narcotics that resembled bags discard-
ed by Freeman’s associates. Agents also observed Sanders
enter Freeman’s Sheridan Road residence and intercepted
various calls between Freeman, Sanders, and other defend-
ants.
On November 13, 2006, the ATF agents observed a Dodge
Intrepid registered to Wilbourn’s mother parked in a lot out-
side Freeman’s Sheridan Road residence. At approximately
8:40 p.m., three black males, one resembling Wilbourn, got
into the Dodge. The agents surveilled the automobile as it
drove to a nearby gas station and pulled up next to a maroon
Buick registered to a co-defendant named McClatchey. Chi-
cago Police Officer Pat Munyon, who was assisting the sur-
veillance operation, pulled in behind the Buick in the gas sta-
tion. From his vantage point, he observed a black male exit
the back seat of the Buick, approach the Dodge, and lean in-
to the front passenger side. He remained there for approxi-
mately ten seconds before returning to the Buick. Officer
Munyon did not record observing any drugs during this ex-
change.
6 Nos. 13-3715 & 13-3727
The Buick left the gas station and travelled west for sev-
eral blocks before it was stopped by Chicago police officers
Jason Schoenecker and Michael Corlett. The officers ob-
served two females sitting in the front seat and a male pas-
senger in the back seat and instructed the male passenger to
exit the vehicle. Recognizing the passenger as Adam Sand-
ers, the police officers placed Sanders in the back seat of the
police vehicle. The officers then searched the back seat area
and smelled a strong odor of crack cocaine. Searching un-
derneath the front passenger seat, they recovered a black
plastic bag which contained several hundred smaller bag-
gies, each of which, in turn, contained a rock of crack co-
caine. One of those smaller baggies contained a larger, 18-
gram rock, while the others contained less than a gram. A
number of the baggies bore the orange and white marking
(120 baggies total) associated with drugs sold by Wilbourn,
while others carried the blue-devil marking (404 total) asso-
ciated with Freeman. Laboratory analysis of the bags veri-
fied that the individual crack rocks contained approximately
77 grams of cocaine base.
Four days after the stop, ATF Special Agent Edward Pia-
cenza prepared a report of the incident that incorporated the
account of the event given to him by Officer Schoenecker.
This report described the incident as a traffic stop but failed
to provide any details about a traffic violation or questioning
of the driver related to a traffic incident. The report went on
to describe the search conducted by Officers Schoenecker
and Corlett and the seizure of the drugs. Five months later,
Officer Munyon, who had observed the Buick at the gas sta-
tion, prepared a report which provided additional detail
about his observations. He stated that he observed Sanders
sitting in the back seat of the Buick “making tucking and
Nos. 13-3715 & 13-3727 7
pushing motions with his arms towards the lower area of the
seat.”
The district court ruled that Sanders’ Fourth Amendment
rights were not violated because, as a passenger, he had not
demonstrated a legitimate expectation of privacy in the
Buick. It also provided a second justification for the search,
ruling that it constituted a protective sweep of the car fol-
lowing a valid Terry stop because the officers’ surveillance
(and larger investigation) provided reasonable suspicion
that the passenger in the back seat of the Buick had commit-
ted a crime and that there might be a weapon in the car.
B. Phone Counts
Both Sanders (three counts) and Wilbourn (one) were
found guilty of using a telephone in furtherance of the con-
spiracy charged in the indictment. Following trial, the dis-
trict court vacated and granted a new trial on the conspiracy
charge and we affirmed this ruling. On remand, the gov-
ernment did not re-try any of the vacated charges but elected
to proceed to sentencing on the undisputed convictions.
On appeal, the defendants argue that the telephone
counts should be vacated because they are legally and factu-
ally dependent on facilitating “the felony … as charged in
Count One.” Because the felony in Count One—the Freeman
conspiracy—was vacated, the phone counts must also be va-
cated, according to the defendants. Additionally, Wilbourn
argues that there is insufficient evidence to support his con-
viction.
C. Premature Jury Deliberations
On the fifth day (out of eighteen) of witness testimony,
Patrice Shadd, a girlfriend of one of the defendants, sat next
8 Nos. 13-3715 & 13-3727
to a table of jurors at lunch. She testified that she overheard
those witnesses discussing the trial. According to Shadd, one
juror opined that two of the defendants were guilty; a sec-
ond juror agreed and stated that two were guilty but did not
know about the others; and, a third juror expressed general
agreements with these statements. Shadd identified for the
court the three jurors who were active in this conversation.
The government opposed conducting a voir dire on the
jury because it would be disruptive and might cause jurors
to wonder whether they were being watched outside of
court. Ultimately, the district court instructed the jurors not
to make up their minds or discuss the case with each other
until they heard all of the evidence and were instructed by
the court to discuss the merits of the case. Following the in-
struction, the judge asked the defense whether they sought
removal of the jurors alleged to have participated in the con-
versation. Counsel for the defense declined to have them
removed.
D. Wilbourn’s Motion for a Mistrial
After the government had rested its case, Wilbourn indi-
cated his intention to proceed to closing arguments without
presenting any evidence. Three of the other defendants had
also rested their case and the judge instructed the jury that
“any evidence that’s presented after a defendant rests is not
to be considered against that defendant.”
Freeman did not rest his case. Instead, he sought to pre-
sent to the jury a videotape showing an undercover inform-
ant who tried to purchase drugs but was unable to do so
when he was confronted by various sellers shouting out dif-
ferent lines of drugs, none of which was the “blue devil”
Nos. 13-3715 & 13-3727 9
product associated with Freeman. By showing several deal-
ers hawking various other lines of drugs, Freeman sought to
disprove the government’s theory that his operation had a
monopoly of control over that territory to sell his “blue dev-
il” product.
None of the defendants was depicted on the video. Wil-
bourn’s counsel did not object to its introduction but asked
the government to stipulate that none of the defendants was
on the video. The government agreed to do so but stated,
“we’d also want evidence to come out that [the dealers in the
video] were shouting out blue devs and orange stripes.”
Freeman called ATF Special Agent Joseph Delucio to in-
troduce the videotape. On cross-examination, the prosecutor
asked whether the agent heard “people in the building yell-
ing orange stripes?” Agent Delucio answered “yes.” The
prosecutor then asked a follow-up question in which Agent
Delucio clarified that it was the sellers yelling “orange
stripes.” Wilbourn then moved for a mistrial on grounds that
the government, by eliciting that testimony, sought to enter
evidence solely to impute guilt against Wilbourn because
previous testimony had linked him to the “orange stripe”
brand. The judge denied the motion.
E. Wilbourn’s Sentence
At sentencing, the government argued that, although the
conspiracy count had been dismissed, he could still be sen-
tenced as if he were a co-conspirator because the govern-
ment had established by a preponderance of evidence that
he was a member of Freeman’s drug trafficking organization.
The court accepted this argument and found Wilbourn “ac-
countable … for all of the drugs procured and sold by the
10 Nos. 13-3715 & 13-3727
Freeman [drug trafficking organization] from March 11, 2002
through May 24, 2007.” This drug amount consisted of more
than 8.4 kilograms of crack cocaine, and 99.7 grams of hero-
in. This drug amount corresponded to a base offense level of
38.
In contrast, Wilbourn argued that he had been in prison
for large periods of time under which the conspiracy operat-
ed and could not have had any role in any drug trafficking
conducted by Freeman’s operation. Instead, he contended
that he was responsible only for those drugs he personally
sold after he was released from prison, an amount that cor-
responded to a base offense level of 26.
II. Analysis
A. Car Stop
We adopt a mixed standard of review on motions to sup-
press, reviewing the district court’s factual determinations
for clear error and de novo its ultimate determination about
whether the police had sufficient grounds to stop or search
the individual. Ornelas v. United States, 517 U.S. 690, 699
(1996).
Before trial, Sanders moved to suppress the introduction
into evidence of the drugs seized from the Buick. Deciding
the issue on the briefs, the district court denied the motion
because, as a passenger with no possessory interest, Sanders
lacked an expectation of privacy in the Buick. It also provid-
ed an alternate justification, finding that the original stop
was valid under Terry v. Ohio, 392 U.S. 1 (1968), because the
officers had reasonable suspicion to believe that drugs were
present in the car due to facts known to the officers as a re-
Nos. 13-3715 & 13-3727 11
sult of their investigation of the Freeman drug trafficking
organization. The court then deemed the search valid as a
protective sweep because law enforcement had reason to be-
lieve that Sanders might possess firearms based on an inter-
cepted call in which Sanders had asked Freeman for a gun.
Passengers in cars stopped by police are deemed
“seized” for Fourth Amendment purposes and are entitled
to challenge the constitutionality of the detention. Brendlin v.
California, 551 U.S. 249, 251 (2007). This principle, however,
does not extend so far that it recognizes a legitimate expecta-
tion of privacy for passengers who do not have a possessory
interest in a vehicle. See United States v. Walker, 237 F.3d 845,
848–49 (7th Cir. 2001). This limits the scope of Sanders’ chal-
lenge somewhat: because he was a passenger with no pos-
sessory interest in the car, he must demonstrate that the stop
itself was not justified and that the evidence obtained was
derived from an illegal stop (in contrast to an illegal search
after a proper stop, which he would lack standing to chal-
lenge).
The district court rightly disregarded the officers’ first
justification as a traffic stop because they neither cited nor
investigated any traffic violation. See Rodriguez v. United
States, 135 S. Ct. 1609, 1614 (2015) (“A stop for a routine traf-
fic violation justifies a police investigation of that viola-
tion.”). The Fourth Amendment allows officers to “stop and
briefly detain a person for investigative purposes if the of-
ficer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot.’” United States v.
Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 21).
“Reasonable suspicion” has never been reduced to a me-
chanical formula, but embodies “something less than proba-
12 Nos. 13-3715 & 13-3727
ble cause and more than a hunch.” United States v. Baskin, 401
F.3d 788, 791 (7th Cir. 2005). A mere suspicion of illegal activ-
ity at a particular place is not enough to transfer that suspi-
cion to anyone who leaves that property. United States v.
Bohman, 683 F.3d 861, 864 (7th Cir. 2011).
Ultimately, the district court accepted the government’s
argument that the police officers had a reasonable suspicion
to stop the Buick based on facts known to them as a result of
the investigation of the Freeman drug organization. But
there is a problem with this: none of the evidence in the rec-
ord demonstrates that the individual officers (Schoenecker
and Corlett) knew anything about the persons inside the
Buick at the time of the stop. In its twenty-seven-page re-
sponse brief, the government recounted an impressive list of
surveillance operations and phone intercepts depicting vari-
ous encounters between Freeman, Sanders and other per-
sons. But none of this addressed the central question—
whether Officers Schoenecker and Corlett (and not other
agents) had a reasonable suspicion that the persons in the
Buick were engaged in criminal activity. None of the evi-
dence suggests that the officers participated in these surveil-
lance operations before they encountered the Buick. There is
no indication that they were present at the gas station when
Officer Munyon observed the encounter between the pas-
senger and the Dodge. There is no evidence that the officers
derived their suspicions as a result of facts provided to them
by the other agents.
Sanders attached to his suppression motion a report writ-
ten four days after the incident by ATF Special Agent Ed-
ward Piacenza. This report contains an account of the stop as
described (to SA Piacenza) by Officer Schoenecker. It de-
Nos. 13-3715 & 13-3727 13
scribes the stop as a traffic stop but gives no account of any
traffic violation cited. More significantly, however, the report
provides no other justification for the stop; indeed, the con-
tents nowhere indicate that Officers Schoenecker or Corlett
knew anything about the persons in the Buick prior to mak-
ing the stop. One might presume that they received a call on
the police radio that the persons inside the Buick were en-
gaged in criminal activity, but nothing in the record on this
motion demonstrates that.
Reasonable suspicion must be “based on articulable
facts” that the person stopped may be engaged in criminal
activity. Terry, 392 U.S. at 21. An officer’s reasonable suspi-
cion should be based on “the totality of the circumstances—
the whole picture.” Sokolow, 490 U.S. at 8. Here, the record is
devoid of any facts to suggest that Officers Schoenecker and
Corlett had reason to suspect that the persons in the Buick
had committed a crime. The key term is “articulable.” The
government offered extensive evidence to establish that oth-
er officers had reason to suspect that the persons in the Buick
had committed a crime. But it offered no evidence to suggest
that anyone communicated any basis for these suspicions to
Officers Schoenecker and Corlett. Because of this, neither of-
ficer was able to articulate any grounds to justify the stop.
The purpose of a Terry stop is to provide law enforce-
ment the opportunity to stop and question a person briefly
when it believes that person may be committing or may have
committed a crime. This was not a Terry stop; it was more
akin to a warrantless arrest. The police stopped a car and
immediately proceeded to remove a passenger, place him in
custody in the back of a police car, and engage in a thorough
search of the automobile. These actions might have been
14 Nos. 13-3715 & 13-3727
proper if the officers had probable cause to arrest someone
in the car. As it was, the officers who made the stop failed to
articulate any facts addressing reasonable suspicion, still less
probable cause. For this reason, the stop did not conform to
the precepts outlined in Terry and was invalid.
Evidence seized as a result of an illegal stop is the fruit of
the poisonous tree and should not be introduced into evi-
dence. See Sutterfield v. City of Milwaukee, 751 F.3d 542, 568
(7th Cir. 2014) (citing Wong Sun v. United States, 371 U.S. 471,
484–86 (1963)). For this reason, we reverse the district court’s
denial of their motions to suppress. Additionally, because
Sanders’ conviction under Count 32 was due in part to evi-
dence seized as a result of an illegal stop, we vacate his con-
viction on this count and remand it to the district court for a
new trial.
B. Phone Counts
Wilbourn was convicted of one count and Sanders three
counts of using a telephone in furtherance of a conspiracy in
violation of 21 U.S.C. § 843(b). In this case, the predicate nar-
cotics offense was the Freeman conspiracy alleged in the first
count of the indictment. Following their convictions, Wil-
bourn and Sanders moved for acquittal and a new trial. The
district court granted a new trial to both of them on the con-
spiracy charge (and to Wilbourn on two other counts) but
denied the motion on all other counts. On appeal, they argue
that the court should have granted its motion for acquittal
(or for a new trial) because the phone counts are factually
and legally dependent on the vacated conspiracy conviction.
Alternatively, Wilbourn argues that there was insufficient
evidence to support his conviction on this count.
Nos. 13-3715 & 13-3727 15
We review de novo a district court’s denial of a motion for
acquittal, United States v. Jones, 763 F.3d 777, 807 (7th Cir.
2014), and the denial of a motion for a new trial for abuse of
discretion, United States v. Whiteagle, 759 F.3d 734, 756 (7th
Cir. 2014). We review a defendant’s challenge to the suffi-
ciency of the evidence by determining whether the record,
read in the light most favorable to the government, contains
sufficient evidence from which any rational juror could find
the defendant guilty beyond a reasonable doubt. Jones, 763
F.3d at 807.
A defendant violates 21 U.S.C. § 843(b) if he knowingly
and intentionally uses a telephone to facilitate the commis-
sion of a narcotics offense. United States v. Arrellano, 757 F.3d
623, 631 (7th Cir. 2014). Proof of an underlying narcotics of-
fense is an element under § 843(b) and must be proven be-
yond a reasonable doubt. See United States v. Campbell, 534
F.3d 599, 605 (7th Cir. 2008). “[A] defendant cannot be con-
victed of using a telephone to commit a drug offense unless
the defendant also aids or abets, or attempts to commit, the
drug offense itself.” United States v. Mueller, 112 F.3d 277,
281–82 (7th Cir. 1997).
But an acquittal of the underlying offense does not mean
that there must be an acquittal on the phone counts. United
States v. McGee, 408 F.3d 966, 985 (7th Cir. 2005). “Typically, a
guilty verdict will stand (so long as the evidence is sufficient
to support it) notwithstanding an inconsistent verdict on a
related offense, even if conviction on the latter is a predicate
to the conviction of the former.” United States v. Moore, 763
F.3d 900, 910 (7th Cir. 2014).
The two sides disagree about the effect of the vacated
conspiracy conviction. The government contends that it can
16 Nos. 13-3715 & 13-3727
still serve as a predicate offense because, notwithstanding
the ruling to vacate, the evidence still supports a finding be-
yond a reasonable doubt that both Wilbourn and Sanders
participated in Freeman’s conspiracy. In support, the gov-
ernment cites Justice Holmes’ observation that consistency
between jury verdicts is not necessary because each count in
an indictment is regarded as if it were a separate indictment,
Dunn v. United States, 284 U.S. 390, 393 (1932). By contrast,
the defense argues that this is not a case of inconsistent ver-
dicts but of false testimony contaminating a necessary ele-
ment of the offense to such a degree as to render a guilty
verdict impossible. By the defense’s logic, once the court va-
cated the conspiracy conviction, it was required to vacate as
well the phone counts that were predicated on the conspira-
cy.
Both of these positions, while accurate to some degree,
fail to take full account of the issue as it stands on appeal.
The government is correct to note that mere inconsistency
among verdicts does not, in and of itself, mandate any par-
ticular disposition. This principle, long recognized, was reaf-
firmed in United States v. Powell, 469 U.S. 57 (1986), in which
the Supreme Court declined to vacate a conviction under
§ 843(b) where the jury acquitted the defendant of the predi-
cate offense but found her guilty of the phone counts. The
court held that there was “no reason to vacate respondent’s
conviction merely because the verdicts could not be recon-
ciled.” Id. at 69 (citing Dunn, 284 U.S. 390).
But the defense is correct to note that the issue here is not
inconsistent verdicts—the jury, after all, convicted both Wil-
bourn and Sanders of the phone counts and the predicate
conspiracy. The issue, properly understood, is whether the
Nos. 13-3715 & 13-3727 17
trial judge erred by vacating only the conspiracy and not the
phone counts to which the conspiracy served as predicate.
The government’s arguments suggest that a trial judge is no
more obligated than a jury to maintain consistency among
jury verdicts.
We agree with this much: the mere fact that verdicts are
inconsistent with each other is of no legal significance unless
a party can demonstrate that such verdicts cannot coexist by
operation of law. For this appeal, this means that the mere
inconsistency among the verdicts is of no significance; what
matters is whether the basis on which the judge vacated the
conspiracy conviction is of such nature that it also mandated
vacating the phone charges as well. This, of course, requires
an examination of the facts as they relate to the elements of
individual charges.
But it also involves something else not covered in full by
the parties—a court’s authority to remedy prosecutorial mis-
conduct by vacating convictions. In addressing these ques-
tions, it is helpful to revisit briefly our decision in Freeman,
which we summarized as follows:
After a full review of the record, we hold that
the district court did not err in finding that the
government knowingly used false testimony
and that there was a reasonable likelihood that
the false testimony affected the jury’s verdict
on the conspiracy charge. Nor did the district
court abuse its discretion in granting the de-
fendants a new trial. In addition, the district
court did not abuse its discretion by granting a
new trial for the counts affected by the gov-
ernment’s statements made in closing argu-
18 Nos. 13-3715 & 13-3727
ments. Accordingly, the judgment of the dis-
trict court is affirmed.
650 F.3d at 683–84.
Several aspects of that holding are worth highlighting.
First, we recognized that the false testimony elicited by the
government affected the jury’s verdict on the conspiracy
charge. Second, we recognized that the remedy afforded by
the judge, a new trial on various charges, was an act of dis-
cretion designed as a specific remedy. Third, we cited specif-
ic prosecutorial misconduct as the bases for these decisions;
the government elicited false testimony during the trial and
sought to defend this testimony at closing argument, albeit
with a different interpretation.
This serves to highlight the various considerations that
converged in the decision to grant a new trial; on one level,
the judge sought to negate the effect that tainted testimony
might have had against the various charges of disparate de-
fendants; on still another level, the judge sought to fashion a
remedy commensurate to the gravity of the misconduct.
Each of these requires discretion from the district judge.
Here, the judge was present during the weeks of trial and
was able to evaluate the gravity of the government’s miscon-
duct and the ways in which it affected the individual de-
fendants. Id. at 681 (“For five weeks, the district court lis-
tened to this case; she had a feel for it that we can’t replicate,
and that fact is not lost in our review of her decision.”).
Of course, this is but a technical prelude to a simple
point: the tainted evidence harmed Wilbourn (and Freeman)
more than the other defendants, whereas the dismissal of the
conspiracy count benefited them all equally. We noted in
Nos. 13-3715 & 13-3727 19
Freeman that virtually the whole of the false testimony of
Seneca Williams centered upon Wilbourn and Freeman. Id.
at 677 (“Williams testified at length about the penthouse,
frequently placing Wilbourn there with Freeman and others
discussing the drug trade. This included testimony about the
defendants ‘branding’ their respective types of crack. This
was a particularly damning piece of testimony … . [The gov-
ernment] solicited testimony about Wilbourn’s presence at
the penthouse; it even encouraged Williams to specifically
detail Wilbourn’s participation in Freeman’s operation
there… .”). Furthermore, the testimony was only demon-
strated to be patently false insofar as it specifically identified
Wilbourn as participating in various events while he was ac-
tually in jail. For this reason, we have little difficulty con-
cluding that the same defects that were fatal to Wilbourn’s
conspiracy conviction are equally present in his phone
charge under § 843(b). The government “must prove the
commission of the underlying offense to obtain a conviction
on a charge of telephone facilitation.” McGee, 408 F.3d at 985.
It did not do so, and the trial judge should have vacated that
count as well. For this reason, we reverse the trial court’s de-
nial of Wilbourn’s motion for a new trial, vacate Count 4,
and remand it to the district court.
We decline, however, to vacate Sanders’ convictions un-
der § 843(b). In so doing, we recognize that the dismissal of
Sanders’ conspiracy charge—a perfectly correct ruling—
owed more to addressing prosecutorial misconduct than to
rectifying a verdict secured by bad evidence. The effect of
Seneca Williams’ testimony on Sanders is negligible com-
pared to that of Wilbourn or Freeman. Williams’ testimony
was not a central component linking Sanders to Freeman’s
organization; it did not address the specific telephone con-
20 Nos. 13-3715 & 13-3727
versations between Sanders and Freeman; and it did not ad-
dress Sanders’ defenses. In short, the introduction into evi-
dence of the various phone calls between Sanders and Free-
man, and the content of those calls, suffices to establish the
predicate offense to support Sanders’ convictions under
§ 843(b).
C. Premature Deliberations
We review a district court’s handling of premature jury
deliberations and juror bias for abuse of discretion. United
States v. Farmer, 717 F.3d 559, 564 (7th Cir. 2013). The defend-
ants argue that the discussion by three jurors on the fifth day
of witness testimony denied the defendants their due pro-
cess right to an impartial jury. They further contend that the
trial judge was obligated to conduct a voir dire examination
of the jury because there was a reasonable claim of juror bi-
as.
A central duty of a trial judge is to ensure that a defend-
ant enjoys a presumption of innocence throughout the trial.
Id. To that end, every trial begins with a set of instructions to
jurors to avoid discussing the case until the jury deliberates
after the conclusion of the trial. Notwithstanding these direc-
tions, mistakes often occur, especially in longer trials. Id.
(“It’s a rare jury trial in which there are no mistakes on any-
one’s part.”). For this reason, judges have a variety of
measures they can take, including conducting a voir dire of
the jurors, or admonishing the jury and instructing jurors to
avoid discussing the case with anyone or forming an opinion
about the resolution of the case until all the evidence has
been presented. The appropriateness of a particular measure
hinges, in large part, on the nature of the alleged miscon-
duct. See United States v. Stafford, 136 F.3d 1109, 1112 (7th Cir.
Nos. 13-3715 & 13-3727 21
1998) (“Not every allegation of jury misconduct is sufficient-
ly substantial or sufficiently well substantiated to warrant
putting the jurors on the spot.”).
The trial judge heard arguments from both sides about
how to address the alleged misconduct. The government ar-
gued that voir dire was likely to unsettle jurors who might
fear that they were being observed outside of the courtroom.
The defense, in contrast, sought to conduct voir dire. The tri-
al judge decided to instruct the jury that: “[I]t is essential
that you not talk about the case. And it is absolutely essential
that you not make up your mind until you have heard all the
evidence.” Following the instruction, the judge asked the de-
fense whether they sought removal of the jurors alleged to
have participated in the conversation. The defense declined
to have them removed.
The judge was within her discretion to handle the matter
this way. Intra-jury discussions, such as the one at issue here,
are viewed as less threatening than extra-jury influence or
bias. See United States v. Morales, 655 F.3d 608, 632 (7th Cir.
2011). The discussion alleged here was certainly improper,
but it was not so egregious that it required more stringent
investigation or curative measures. Jurors are “presumed to
follow limiting and curative instructions unless the matter
before them is so powerfully incriminating that they cannot
reasonably be expected to put it out of their minds.” United
States v. Harmon, 721 F.3d 877, 886 (7th Cir. 2013) (citations
omitted).
Here, the comments were not of such nature as to rebut
the presumption that they could not be addressed by an in-
struction from the court. Nothing in the communications
suggests that any juror was trying to lobby other jurors to
22 Nos. 13-3715 & 13-3727
adopt a particular position or to interpret the evidence pre-
sented in accordance with a stated position. Finally, there is
no evidence that the statements had any lingering effects af-
ter the judge issued her instruction. The jury deliberated for
five days before arriving at its verdict. Significantly, the juror
alleged to have started the conversation did not take part in
the ultimate deliberations. Taken together, these facts do not
demonstrate that any alleged misconduct affected the basic
fairness of the trial.
D. Motion for Mistrial
Wilbourn moved for a mistrial on the grounds that the
government entered evidence against him after he had rest-
ed his case. The judge denied the motion—a ruling that we
review for abuse of discretion. United States v. Lauderdale, 571
F.3d 657, 660 (7th Cir. 2009).
We quickly dispatch this issue because there is no evi-
dence to suggest that the trial judge abused her discretion in
denying Wilbourn’s motion. “To win a new trial based on a
prosecutor’s improper comments, a defendant must estab-
lish that the prosecutorial misconduct deprived him of his
right to a fair trial.” United States v. Johnson, 655 F.3d 594, 602
(7th Cir. 2011). Here, there is no indication that the two ques-
tions posed by the prosecutor had any effect on the fairness
of the trial. Agent Delucio did not mention Wilbourn by
name; the testimony centered upon questions regarding the
availability of Freeman’s brand of drugs and did not extend
beyond two brief questions; and the prosecutor did not men-
tion this testimony at closing argument. The judge instructed
the jury not to consider any evidence against an individual
defendant after that defendant has rested his case. Unless
rebutted, we presume that a jury will follow the court’s in-
Nos. 13-3715 & 13-3727 23
struction to limit its consideration of testimony in accord-
ance with instructions received from the trial judge. See
Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 446 (7th Cir.
2010). Here, the defense has not brought forth any grounds
to rebut this presumption and the judge was within her dis-
cretion to deny Wilbourn’s motion for a mistrial.
E. Wilbourn’s Sentence
We review de novo a district court’s interpretation of the
guidelines and its findings of fact for clear error. United
States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008). At sentenc-
ing, Wilbourn received enhancements for firearms and for
having a supervisory role in Freeman’s drug organization
and a reduction for acceptance of responsibility. Additional-
ly, the court found Wilbourn responsible for all of the drugs
procured and sold by Freeman’s organization from March
11, 2002, through May 24, 2007. Specifically, the court found
Wilbourn accountable for 8.4 kilograms of cocaine base in
the form of crack and 99.7 grams of heroin.
The court did this despite the fact that Wilbourn was in
prison from April 23, 2002, until September 8, 2005. The
court based its findings on two phone calls that Wilbourn
conducted while in prison. The first call took place on Octo-
ber 3, 2003. In that call, Wilbourn urged Sanders to “step up”
and fill in for him while he was in jail. The second call took
place on January 13, 2004, wherein Wilbourn discussed a po-
lice raid on an apartment associated with Freeman’s organi-
zation with a defendant named Hill.
The court calculated his offense level as 41 and his crimi-
nal history as III, which yielded a guidelines sentence of be-
tween 360 months to life imprisonment. The court originally
24 Nos. 13-3715 & 13-3727
sentenced Wilbourn to 200 months’ imprisonment but later
reduced the sentence to 184 months.
First, the court provided ample grounds to support the
imposition of the firearms and supervisory enhancements.
The court noted various instances in which Freeman pre-
pared and packaged drugs at Freeman’s premises, the fre-
quent communications between Wilbourn and Freeman on
matters related to drug distribution, and the shared methods
and personnel used by Wilbourn and Freeman to manufac-
ture and distribute drugs. Pointedly, there is a recurring
theme to these conversations: they repeatedly address the
day-to-day operations of the organization and how to direct
lower-level persons to carry out their duties. In other words,
these are properly the conversations of two persons in man-
agement roles giving advice and direction to each other. Fi-
nally, the fact that we vacated Wilbourn’s conviction for con-
spiracy has no bearing on this enhancement. At trial, a dis-
trict court need only find by a preponderance of the evi-
dence facts sufficient to support the enhancement. United
States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006). Here, there
was sufficient evidence to find that Wilbourn and Freeman
shared operations related to drug distribution and that Wil-
bourn had a supervisory role in those operations.
In contrast, the court committed clear error in concluding
that Wilbourn was responsible for drugs produced and sold
by Freeman during the period in which Wilbourn was incar-
cerated. The sole evidence supporting this finding was two
phone calls, neither of which addressed drug distribution in
anything but the most attenuated sense. The first call took
place almost eighteen months after the beginning of Wil-
bourn’s incarceration. In that call, Wilbourn encouraged
Nos. 13-3715 & 13-3727 25
Sanders to fill his role within Freeman’s organization. If any-
thing, this call demonstrates that Wilbourn did not have an
active role in Freeman’s organization during that period;
were it otherwise, he would not need Sanders to address the
void created by his absence. The second call likewise fails to
show any involvement by Wilbourn in Freeman’s organiza-
tion. Neither phone call discussed drug distribution specifi-
cally or anything involving the regular operations of Free-
man’s organization. To be sure, a person can participate in
(or even lead) a conspiracy from a prison cell, but to do so
requires that their actions inside prison have some effect on
the operations of the conspiracy. There is no evidence that
Wilbourn’s actions in prison had any effect on the operation
of the conspiracy.
For this reason, we vacate Wilbourn’s sentence and re-
mand it to the district court to make a drug amount finding
that does not include the periods of time in which Wilbourn
was incarcerated.
III. Conclusion
For the reasons stated, we AFFIRM each of the district
court’s ruling except the following:
(1) We reverse the district court’s denial of Sanders’ mo-
tion to suppress evidence seized from the Buick and
we vacate Sanders’ conviction on Count 32 and re-
mand it to the district court for a new trial; and
(2) We vacate Wilbourn’s conviction under Count 4 and
remand it to the district court for a new trial; and,
26 Nos. 13-3715 & 13-3727
(3) We vacate Wilbourn’s sentence and remand it to the
district court with instructions to quantify an applica-
ble drug quantity that does not attribute to Wilbourn
amounts sold by Freeman’s organization during those
periods that Wilbourn was in jail.