United States v. Hughes, Ruben ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1269
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBEN HUGHES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 670-01--Harry D. Leinenweber, Judge.
Argued December 3, 1999--Decided May 3, 2000
Before POSNER, Chief Judge, and COFFEY and MANION,
Circuit Judges.
COFFEY, Circuit Judge. Defendant-Appellant Ruben
Hughes ("Hughes") was indicted and charged in
Count one with conspiring to possess cocaine and
cocaine base with intent to distribute, in
violation of 21 U.S.C. sec. 846, in Counts two
through five with distributing cocaine or cocaine
base, in violation of 21 U.S.C. sec. 841(a)(1),
and in Count six with possessing a firearm as a
felon, in violation of 18 U.S.C. sec.
922(g)(1)./1 At the conclusion of a jury trial,
Hughes was found guilty on each of the counts,
and on January 13, 1999, the court imposed a life
sentence on the drug counts,/2 as well as a ten
year concurrent term on the firearm count and a
$10,000 fine. Hughes appealed, alleging that the
evidence presented at trial constructively
amended the indictment and that the trial judge
erred when he refused to give the multiple
conspiracies jury instruction the defendant
requested. Hughes also claims that his attorney
failed to adequately discuss the contents of the
Presentence Report ("PSR") with him in violation
of Federal Rule of Criminal Procedure
32(c)(3)(A), and also challenges the sentencing
judge’s findings relating to the quantity of
drugs that he was responsible for as well as his
leadership role in the crimes. AFFIRM.
I. BACKGROUND
In 1989, Hughes began acting as the leader of a
cocaine trafficking operation in the Joliet-
Lockport, Illinois area. The drug operation was
run primarily from a series of "crack houses" in
an area of Joliet referred to as the "Hill." His
organization consisted of a confederation of
people who prepared cocaine base ("crack") by
cooking cocaine powder into crack, bagged the
crack for resale and distributed it to customers
at Hughes’ direction. During the period charged
in the indictment ("[b]eginning in 1996 and
continuing until on or about June 26, 1997"),
Hughes managed and directed his operation from
his crack house at the "Hill" called the "Bolo
Shop," which sold approximately 4.5 to 9 ounces
of crack daily, resulting in an income of $5,000
to $10,000 per day, mainly from the volume sale
of "quarter bags" (bags containing between .1 and
.3 gram of crack) costing $20 to customers. All
monies collected from the sales were given to
Hughes, with each worker receiving a small
commission either in money or crack. Hughes was
never far away from the scene of the sales, and
when the workers ran out of their supply, they
paged Hughes who would in turn deliver a fresh
supply of crack and collect the money. The
defendant amassed some 29 vehicles, several
houses as well as a car wash from his lucrative
cocaine operation.
With Hughes as the star of the show, the cast of
characters included two long-time acquaintances who
were employed in his operation and later agreed to
testify against him--namely, Joseph Nixon ("Nixon")
and Jeffrey Lindsey ("Lindsey"). A long-time
customer, Kendall Woods ("Woods"), also testified
for the government against Hughes.
Nixon began selling drugs for Hughes in 1990.
As time progressed, Hughes took him under his
wing and soon thereafter Nixon became his "right
hand man," selling and "bagging" the crack for
him. By 1997, Hughes was allowing Nixon to bag
and sell multi-ounce quantities of crack for a $5
profit on every $20 bag sold. Although Hughes’
"Bolo Shop" crack house was raided and shut down
by the police in January 1997, between January
and June 1997, Nixon bagged, sold and delivered
in excess of five kilograms of crack for Hughes.
Lindsey at one time was also designated to sell
and cook cocaine into crack base for Hughes, and
like the other employees, he was given "quarter
bags" to sell and would also page Hughes to pick
up the proceeds when a replenishment of drugs was
needed. On occasion, Hughes would give Lindsey
between 6 and 8 grams of crack for every kilogram
cooked for him. In the summer of 1996 alone,
Lindsey cooked an estimated total of six to ten
kilograms of crack for Hughes./3
Woods had known Hughes for some ten years
before he began purchasing cocaine and crack from
him in 1989. From that time until 1997, Woods
made cocaine and crack buys from Hughes over 500
times, in quantities ranging from 3.5 grams to
half a kilogram. After Woods’ arrest for drug
possession and aggravated battery, he agreed to
cooperate with law enforcement authorities in the
investigation of Hughes. Between January and June
of 1997, Woods made four monitored drug buys from
Hughes which serves as the basis for Counts two
through five of the indictment./4
Hughes’ drug operation crumbled when he was
involved in a traffic accident on June 26, 1997,
and an Illinois State trooper named Linda Terando
investigated the accident and was informed by a
motorist at the scene that the defendant had
deposited a red rag in a culvert off the side of
the road. Trooper Terando recovered the red rag
and discovered that it contained two Grendel
handguns./5 As a result, the defendant was
arrested for possessing a firearm as a felon./6
On December 18, 1997, a federal grand jury
indicted both Hughes and Nixon in Count one of
the charging papers with conspiring to distribute
cocaine and cocaine base and in Counts two and
five with cocaine and cocaine base distribution,
and also indicted Hughes alone in Count three and
four with cocaine distribution and in Count six
with possessing a firearm as a felon. Likely
sensing the strength of the government’s case
against him, Nixon agreed to assist the
government and pled guilty to Count one and
became a cooperating witness. Testifying against
Hughes at trial, Nixon described how since 1990,
he had been personally involved in the processing
and delivery of dozens of kilos of cocaine and
crack for Hughes, and described in detail the
nature of his and Hughes’ involvement in the drug
operation. Nixon also testified that he helped
"cook" cocaine on occasion, but mainly bagged and
sold $20 bags of crack to customers from a number
of Hughes’ crack houses. He also testified that
from January through June 1997, he delivered
crack to Woods at Hughes’ direction. Likewise,
Woods testified about the extensive amount of
cocaine and crack he had purchased from Hughes
since 1989, as well as the details of the 1997
drug transactions during the government sting
operation. Lindsey as well testified about the
extensive amount of cocaine that he cooked into
crack and sold for Hughes.
A jury found Hughes guilty on all counts set
forth in the indictment. At sentencing, Hughes
objected to the four-level upward adjustment of
his offense level from 40 to 44 for his
leadership role in the crimes and the quantity of
cocaine attributable to him as recommended in the
PSR. Hughes also stated at the sentencing hearing
that his counsel "never really sat down and
discussed" the PSR with him, thus violating
Federal Rule of Criminal Procedure 32(c)(3)(A),
but his counsel rebutted this testimony. The
sentencing judge rejected Hughes’ objections to
the PSR, adopted its recommendations and
sentenced Hughes to life imprisonment on Counts
one through five, and a ten year term of
imprisonment on Count six, ordered to run
concurrently. The defendant appealed.
II. ISSUES
On appeal, the defendant claims that the
district court committed reversible error in: (1)
allowing the evidence of his uncharged criminal
activity to, in effect, constructively amend the
indictment; and (2) failing to issue the
requested multiple conspiracies jury instruction.
Hughes also challenges the computation of his
sentence, arguing that: (1) his attorney failed
to adequately discuss his PSR with him prior to
sentencing; (2) the judge failed to make adequate
findings relating to the quantity of cocaine base
attributable to him; and (3) the judge erred in
adjusting his offense level upward for his
leadership role in the crimes.
III. DISCUSSION
A. Hughes’ Challenges to His Conviction
1. Constructive Amendment of the Indictment
On appeal, Hughes argues that the evidence at
trial relating to his drug activity referred to
conduct that occurred prior to the period set
forth in the indictment ("[b]eginning in 1996 and
continuing until on or about June 26, 1997"), and
thereby constructively amended the indictment. We
note that the trial record reflects that the
defendant failed to object either before or
during trial to this specific evidence./7 Thus,
he has forfeited his challenge to the evidence of
his uncharged drug activity and the plain error
standard governs./8 See Wilson v. Williams, 182
F.3d 562, 568 (7th Cir. 1999) (en banc).
Under the plain error standard, only "those
errors which ’seriously affect the fairness,
integrity or public reputation of judicial proceedings’"
warrant reversal. See United States v.
Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995)
(quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)). In other words, plain error is "an
error that not only is clear in retrospect but
also causes a miscarriage of justice." See
Wilson, 182 F.3d at 568. Thus, Hughes must
establish not only that "there was error, [but]
that error was plain, that error affected his
substantial rights, and that it seriously
affected the fairness, integrity, or public
reputation of the proceeding." United States v.
Bursey, 85 F.3d 293, 296 (7th Cir. 1996)
(emphasis added) (citing United States v. Olano,
507 U.S. 725, 730-37 (1993)).
Hughes essentially contends that the aggregate
of the testimony of Nixon, Lindsey and Woods
regarding their pre-1996 involvement in his drug
operation denied him a fair trial by
constructively amending his indictment to include
uncharged drug activity. This Circuit has
previously held that under the plain error review
standard, the constructive amendment "must
constitute a mistake so serious that but for it
the defendant probably would have been acquitted
in order for us to reverse." United States v.
Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)
(alterations and quotations omitted).
But, "[t]he introduction of evidence of pre-
conspiratorial events[,] does not by itself
create a constructive amendment to the
indictment." See id. at 829; United States v.
Spaeni, 60 F.3d 313, 315 (7th Cir. 1995). "[T]his
circuit has a well-established line of precedent
which allows evidence of uncharged acts to be
introduced if the evidence is ’intricately
related’ to the acts charged in the indictment."
See United States v. Gibson, 170 F.3d 673, 680
(7th Cir. 1999). In other words, a "court may
admit evidence of other criminal conduct that is
inextricably intertwined with the charged offense
or that completes the story of the charged
offense." United States v. King, 126 F.3d 987,
995 (7th Cir. 1997).
Essentially, the admissibility of uncharged
criminal activity under the "intricately related"
doctrine turns on:
whether the evidence is properly admitted to
provide the jury with a complete story of the
crime on trial, whether its absence would create
a chronological or conceptual void in the story
of the crime or whether it is "so blended or
connected" that it incidentally involves,
explains the circumstances surrounding, or tends
to prove any element of, the charged crime.
United States v. Ramirez, 45 F.3d 1096, 1102 (7th
Cir. 1995) (alterations and citations omitted).
Thus, it seems quite apparent that the evidence
presented by the government served the very
appropriate and useful purpose of allowing the
jury to gain a more complete understanding of the
vast scope and nature of Hughes’ drug operation,
including the locations, participants, duties and
assignments of the workers and operational
structure of the drug operation, as well as the
inner workings of the drug conspiracy and the
nature and extent of Hughes’ control. In other
words, the testimony completed "the story of the
crime or crimes charged" and was "necessary to
enable the jury to fully understand and make
sense of the" various drug transactions and
scenarios. See Gibson, 170 F.3d at 682.
Moreover, the testimony describing Hughes’ pre-
1996 drug activity was directly relevant to
establishing a foundation for the personal
knowledge of the government witnesses, as well as
the veracity of their testimony. The nature and
circumstances surrounding the relationships
between Nixon, Lindsey, Woods and Hughes,
directly impacted on the question of the veracity
and strength of the testimony of each of the
prosecution’s witnesses, as well as serving to
establish their direct involvement in and
knowledge of Hughes’ participation in the crimes.
In United States v. Zarnes, 33 F.3d 1454 (7th
Cir. 1994), we similarly upheld the admissibility
of such pre-indictment criminal activity
evidence:
The sale was an integral part of the first
meeting between Zarnes and the Nietupskis. The
testimony showed how their relationship began,
its basis, and structure, and how the
relationship blossomed into the charged
conspiracy. The evidence was "intricately
related" to the conspiracy, and, as such, was
admissible . . . .
Zarnes, 33 F.3d at 1469 (citation omitted)
(emphasis added).
In short, the testimonial evidence concerning
Hughes’ pre-1996 drug trafficking organization
and activity, "gave the jury a more, not less,
accurate picture of the circumstances"
surrounding the charged crimes. See Ramirez, 45
F.3d at 1103; see also Akinrinade, 61 F.3d at
1286 ("The evidence concerning the smuggling
procedures employed by the trafficking
organization before the time of the charged
conspiracy was properly admitted to show the
relationships of the co-conspirators, and how the
heroin operation functioned. In short, this
evidence gave the jury an accurate picture of the
charged crime."); United States v. Diaz, 994 F.2d
393, 395 (7th Cir. 1993) (holding that the facts
relating to the unindicted criminal activity
"showed that the charged conspiracy existed by
showing how the conspiratorial relationship
between Gonzalez and Diaz developed. This
testimony established how the conspirators came
to know each other, how they established a
relationship of trust through their associations
and how these events flowered into the charged
conspiracy."). Thus, it is also evident that the
probative nature of this evidence outweighed any
prejudice that might have resulted because the
presentation of this evidence was necessary and
"intricately related to the facts" of the
defendant’s charged offenses./9 See United
States v. Hargrove, 929 F.2d 316, 320 (7th Cir.
1991) ("Here the testimony of Hargrove’s arrest
was intricately related to the facts of the case.
It related directly to Hargrove’s participation
in the charged conspiracy and was consistent with
other evidence adduced at trial. Any prejudice
from this testimony resulted solely from its
tendency to link Hargrove to the conspiracy and
was not unfair."). We reject the defendant’s
claim that the indictment was constructively
amended,/10 and consequently, conclude that
there was no error, much less plain error, in
allowing the jury to hear a more complete
recitation of his drug activity.
2. Multiple Conspiracies Jury Instruction
Next, the defendant contends that the trial
judge should have issued a multiple conspiracies
instruction./11 But it is interesting to note
that even the defendant acknowledges in his
Appellant Brief that the proposed multiple
conspiracies instruction his counsel submitted to
the court was in a form that has been deemed
legally defective by this Court. ("We realize
that this Court has deemed this instruction
legally defective.") Although the defendant
claims that "[l]egal inadequacy in [the] proposed
instruction should not foil appellate relief,"
the prevailing caselaw clearly dictates
otherwise. We note that this Court has held on
numerous occasions and without equivocation that
an erroneous instruction should not be given. See
United States v. Wilson, 134 F.3d 855, 865 (7th
Cir. 1998); United States v. Duff, 76 F.3d 122,
126 (7th Cir. 1996). Further, with an improper
jury instruction before it, "under the
’intricately related doctrine,’ the court is not
required to give a limiting instruction [such as
a multiple conspiracies instructions] at the time
of the admission of evidence or as part of the
charge to the jury." Cusimano, 148 F.3d at 829.
Moreover, because a court’s role is not to assist
either party in the litigation of their case, it
is the duty and responsibility of each respective
counsel to be adequately prepared and thus have
complete knowledge of the facts of the case as
well as the applicable caselaw when submitting
proposed jury instructions to the court. See
generally Wilson, 134 F.3d at 865 ("A defendant
is entitled to an instruction on his theory of
defense [i.e., multiple conspiracies] only if .
. . the proffered instruction is a correct
statement of the law." (emphasis added)). Thus,
because "the court has no duty to offer an
instruction sua sponte" on behalf of a defendant,
Cusimano, 148 F.3d at 829, as well as the fact
that a "defendant is entitled to an instruction
on his theory of defense only if . . . the
proffered instruction is a correct statement of
the law," Wilson, 134 F.3d at 865, we conclude
that the trial judge properly denied the
defendant’s legally defective instruction. See
also United States v. Kelly, 167 F.3d 1176, 1178
(7th Cir. 1999) (stating that "we review a trial
court’s instructions to the jury with great
deference"); United States v. Powers, 75 F.3d
335, 341 (7th Cir. 1996) ("The district court has
substantial discretion with respect to the
specific wording of instructions."). Cf. United
States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.
1991) ("[T]he jury’s verdict must be interpreted
as a finding that the government presented
sufficient evidence to prove its indictment
beyond reasonable doubt, and that is all that we
require of the prosecution. The fact that the
government’s evidence might also be consistent
with an alternate theory is irrelevant; the law
does not require the government to disprove every
conceivable hypothesis of innocence in order to
sustain a conviction on an indictment proved
beyond reasonable doubt. Consequently, ’even if
the evidence arguably establishe[d] multiple
conspiracies, there [is] no material variance
from an indictment charging a single conspiracy
if a reasonable trier of fact could have found
beyond a reasonable doubt the existence of the
single conspiracy charged in the indictment.’")
(alterations in original) (citations
omitted)./12
B. Hughes’ Challenges to his Sentence
A. Federal Rule of Criminal Procedure 32
The defendant also claims that he is entitled
to a remand of his sentencing because of his
contention that his counsel failed to adequately
discuss the PSR with him./13 We review the
sentencing court’s factual findings for clear
error. See United States v. Isirov, 986 F.2d 183,
185 (7th Cir. 1993).
Under Federal Rule of Criminal Procedure
32(c)(3)(A), "before imposing sentence, the court
must . . . verify that the defendant and
defendant’s counsel have read and discussed the
presentence report." At this sentencing hearing,
it is clear from the record that the judge in
fact asked both Hughes and his counsel if they
had read the PSR, if they discussed it, and if
they wished to challenge anything else in the
report:
THE COURT: Let’s start out this way: Mr.
Mottweiler [(the defendant’s counsel)], have you
read all the documents that I have outlined that
I have?
MR. MOTTWEILER: Yes.
THE COURT: Have you discussed them with your
client, Mr. Hughes?
MR. MOTTWEILER: I have. In fact, some of the
documents were forwarded to me by Mr. Hughes.
THE COURT: Mr. Hughes, have you read all these
documents I have talked about?
THE DEFENDANT: Yes.
THE COURT: Specifically, you have read the
presentence report and the addendum, is that
right?
THE DEFENDANT: Yes.
THE COURT: You have discussed them with your
lawyer, Mr. Mottweiler, is that right?
MR. MOTTWEILER: We have discussed them, Judge.
THE COURT: Is that right, Mr. Hughes?
THE DEFENDANT: Nope.
THE COURT: You say you have not discussed these
with your lawyer at all, is that right?
THE DEFENDANT: Nope. He just showed me the
objections he filed to the PSI.
THE COURT: Did he ask you whether or not the
reports were accurate or not accurate as to your
background and your family, for example?
THE DEFENDANT: He asked me--he said he was going
to check and see if all my arrests were right. He
asked me about that but we never really sat down
and discussed about the PSI.
THE COURT: Let me ask you this: Is there anything
inaccurate about any of this? Leave out the
issues that we are talking about.
THE DEFENDANT: Yes.
THE COURT: What is inaccurate?
. . .
MR. MOTTWEILER: Maybe a more fitting question
might be: Is there anything inaccurate other than
noted in the objections?
. . .
THE COURT: Is there anything else inaccurate in
this report?
. . .
THE DEFENDANT: All right. The stuff as far as
dealing with the trial is inaccurate.
. . .
MR. MOTTWEILER: He objects to everything that
relates to the factual recitation of the facts in
the trial.
THE COURT: In other words, the offense conduct he
objects to?
MR. MOTTWEILER: Yes.
THE COURT: One of the issues is whether he was an
organizer and leader of the sale.
MR. MOTTWEILER: There is very little that we have
not objected to, just for the record.
(Tr. 1/13/99, at 4-5.)
It is interesting to note that this Court
considered this same issue in United States v.
Knorr:
Federal Rule of Criminal Procedure 32(a)(1)(A)
requires that prior to sentencing, the district
court "determine that the defendant and
defendant’s counsel have had the opportunity to
read and discuss the presentence investigation
report." We have construed this as requiring the
court at sentencing to obtain the answer to three
questions: 1) whether the defendant has had an
opportunity to read the presentence report; 2)
whether the defendant and the defense counsel
have discussed the report; and 3) whether the
defendant wishes to challenge any facts contained
in the report. Rone, 743 F.2d at 1174.
At the sentencing hearing, the district court
posed the proper questions as enunciated in Rone.
Knorr indicated that he had an opportunity to
review the presentence report. When asked whether
he had an opportunity to discuss it with his
attorney, Knorr initially answered "no." But then
one of the defense counsel explained that another
of the current defense team had spoken with Knorr
on one occasion and that he had spoken to Knorr
on several occasions by telephone. Knorr then
clarified that while they had discussed the
presentence report, some parts had not been
discussed "in depth." Defense counsel then noted,
[w]e discussed the presentence report, we
discussed strategies as to how to handle his new
case [the failure to appear charge] and how it
impacts on the present proposed sentencing, and
the possible motion to withdraw the guilty plea,
and it must be obvious that I have some facility
with some of those things because of my argument.
Defense counsel noted that he and the defendant
"had a couple of discussions" on the impact of a
specific issue on sentencing. Defense counsel
also indicated that "we have spoken of these
things, [Knorr] and I in an attempt to develop
some direction, and we have not had a chance to
finalize that."
. . .
United States v. Knorr, 942 F.2d 1217, 1222 (7th
Cir. 1991). Considering Knorr’s responses posed
to the district court, the contacts he had with
his counsel relating to the PSR, as well as the
objections to the PSR that were formulated with
and submitted through his counsel, we concluded
that there was no violation of Rule 32. See id.
at 1223.
With essentially the same facts and arguments
that we faced in Knorr, we are convinced that
Hughes’ counsel adequately discussed the PSR with
him within the parameters of Rule 32. We also
believe that it is inconceivable that his counsel
would have been able to submit the numerous
written objections that he did, along with
supporting legal memorandum without having
discussed the PSR or without input from Hughes;
as the defendant’s attorney stated at the
sentencing hearing, "There is very little that
[Hughes has] not objected to." Further, the
judge’s finding that Hughes’ counsel adequately
discussed the PSR with him is essentially "based
on his decision to credit the testimony of one of
two [witnesses] . . ., [and] that finding . . .
can virtually never be clear error." Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1985).
Accordingly, in light of the deference that we
necessarily afford sentencing judges in their
factual and credibility findings, see United
States v. Mancillas, 183 F.3d 682, 701 n.22 (7th
Cir. 1999) ("We do not second-guess the
[sentencing] judge’s credibility determinations.
. . .") (alteration in original); United States
v. Garcia, 66 F.3d 851, 856 (7th Cir. 1995), we
conclude that the defendant has failed to
establish a Rule 32 violation. See, e.g., Knorr,
942 F.2d at 1222-23 (rejecting a defendant’s
claim that Rule 32 was violated when he and
counsel allegedly did not have "in depth"
discussions relating to the PSR).
B. Drug Quantity Calculations
Hughes also argues that the sentencing judge
made inadequate drug quantity findings. We review
a district court’s determination of the amount of
narcotics attributable to a defendant for
sentencing purposes under the clear error
standard. See United States v. Johnson, 200 F.3d
529, 537 (7th Cir. 2000). "’The factual findings
of the district court will not be overturned
unless they are clearly erroneous . . . . Thus,
we will reverse the district court’s conclusion
as to quantity of cocaine attributable to [a]
defendant[ ] only if we have a definite and firm
conviction that the district court made a clear
error in sentencing.’" United States v. Taylor,
72 F.3d 533, 542 (7th Cir. 1995) (quoting United
States v. Mumford, 25 F.3d 461, 465 (7th Cir.
1994)).
Incorporating the government’s position as well
as the recommendations of the PSR, the judge
found that the testimony of Lindsey, Nixon, and
Woods relating to Hughes’ drug activity and
quantities (as well as leadership role in the
operation) was truthful, and that their testimony
established that Hughes was responsible for at
least 1.5 kilograms of cocaine base. As we have
previously held, "[d]istrict court determinations
of drug amounts are reviewed for clear error, and
credibility determinations are given deference so
long as support exists in the record." United
States v. Garrett, 45 F.3d 1135, 1141 (7th Cir.
1995). Indeed, "[i]n a drug conspiracy, each
conspirator is responsible not only for amounts
with which he was directly involved, but also for
amounts involved in transactions by co-
conspirators that were reasonably foreseeable to
him." United States v. Paters, 16 F.3d 188, 191
(7th Cir. 1994).
There is ample, and indeed substantial, evidence
in the record to support the district court’s
findings. Nixon testified that between January
and June of 1997, he bagged, sold or delivered in
excess of five kilograms of crack cocaine for
Hughes and at his direction. (Tr. at 199.)
Similarly, Lindsey testified that in the summer
of 1996, he cooked an estimated total of six to
ten kilograms of crack cocaine for Hughes. (Tr.
at 547, 549, 551.) Although Lindsey would later
recant, then rehabilitate, and then again recant
his testimony, the judge found that "I am well-
satisfied that his [Lindsey’s] testimony given
was true during the trial and that his
recantation was false . . . . Even if it wasn’t,
as I said before, there is plenty of evidence
roping in Mr. Hughes to all six counts . . . ."
"We have frequently held that the trial judge
is in the best position to judge the credibility
of witnesses who offer conflicting testimony
concerning the quantity of drugs attributable to
a defendant for purposes of sentencing." United
States v. Pitz, 2 F.3d 723, 727-28 (7th Cir.
1993).
As a matter of sound jurisprudence, we do not
second-guess the sentencing judge’s credibility
determinations because he or she has had the best
’opportunity to observe the verbal and non-verbal
behavior of the witnesses focusing on the
subject’s reactions and responses to the
interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture
and body movements,’ as well as confused or
nervous speech patterns in contrast with merely
looking at the cold pages of an appellate record.
United States v. Tolson, 988 F.2d 1494, 1497 (7th
Cir. 1993) (quotation omitted). On numerous
occasions, we have held that the clearly
erroneous standard applies to estimates of drug
quantities made for sentencing purposes because
"the district court, as the trier of fact, not
only has the authority but is in the best
position to determine the amount of narcotics
attributable to the [defendant]." Id. at 1502;
see also United States v. Ferguson, 35 F.3d 327,
333 (7th Cir. 1994).
Garcia, 66 F.3d at 856; see Mancillas, 183 F.3d
at 701 n.22 ("We do not second-guess the
[sentencing] judge’s credibility determinations.
. . .") (alteration in original).
Based on our review of the record, we are of
the opinion that the overwhelming weight of the
testimony presented at trial amply supports the
district court’s finding that Hughes was
responsible for the very conservative figure of
1.5 kilograms of cocaine base. We therefore
conclude that the judge’s findings relating to
the amount of drugs attributable to him as
"relevant conduct" under U.S.S.G. sec.
1B1.3(a)(2) were "based on evidence possessing
sufficient indicia of reliability," see United
States v. Howard, 80 F.3d 1194, 1204 (7th Cir.
1996), and thus, were not clearly erroneous.
C. Aggravating Role Enhancement
Lastly, Hughes claims that the evidence
presented at trial was inadequate to support an
upward adjustment for his leadership role in the
crimes. We review a court’s determination of a
defendant’s role in the offense for clear error.
See United States v. Zaragoza, 123 F.3d 472, 483
(7th Cir. 1997). Again, we will not disturb a
sentencing judge’s factual determinations unless
we have a definite and firm conviction that a
mistake has been made. See United States v.
Brierton, 165 F.3d 1133, 1137 (7th Cir. 1999).
The district court adjusted the defendant’s
offense level four levels upward based on his
leadership role in the crimes pursuant to
U.S.S.G. sec. 3B1.1(a). The judge found more than
sufficient evidence to establish the requisite
number of "subordinates" under sec. 3B1.1(a) ("If
the defendant was an organizer or leader of a
criminal activity that involved five or more
participants or was otherwise extensive, increase
by 4 levels."): "The evidence, I think was even
further than that. There were a lot of people who
distributed for a resale. So I am going to find
he was the organizer and unquestioned leader of
the organization, requiring a four level
enhancement." We agree. The record clearly
supports that Hughes was the leader of an
extensive drug operation with numerous employees
and participants, including Nixon, Lindsey, the
defendant’s girlfriend, Kim Robinson, and the
defendant’s father, David Hughes, and countless
customers, including Woods. See also U.S.S.G.
sec. 3B1.1, cmt. (n.3) ("In assessing whether an
organization is ’otherwise extensive,’ all
persons involved during the course of the entire
offense are to be considered."). In light of our
deference to the sentencing judge on factual and
credibility issues, see Garcia, 66 F.3d at 856,
we conclude that the judge’s findings supporting
the upward adjustment of Hughes’ offense level
for his leadership role in the crimes were not
clearly erroneous.
VI. CONCLUSION
We hold that the evidence presented at trial
did not constructively amend the indictment and
that the trial judge did not abuse his discretion
in denying the defendant’s multiple conspiracies
jury instruction. We further hold that Hughes’
counsel adequately discussed the PSR with him
prior to his sentencing and that the court’s
findings in relation to the quantity of cocaine
base attributable to his relevant conduct and
findings in relation to his leadership role in
the crimes were not clearly erroneous. We AFFIRM
the defendant’s conviction and sentence.
/1 Pursuant to a plea agreement, co-Defendant Joseph
Nixon pled guilty to the conspiracy count and
became a cooperating witness against Hughes.
/2 As recommended in the Presentence Report, Counts
one through five were "grouped together" for
sentencing purposes pursuant to U.S.S.G. sec.
3D1.2(d), whereby Hughes was sentenced under "the
offense level corresponding to the aggregated
quantity" of drugs that was attributed to him.
See U.S.S.G. sec. 3D1.3(b). Accordingly, the
judge sentenced Hughes to "a total term of life
imprisonment on Counts 1, 2, 3, 4 and 5."
/3 Lindsey testified at trial that on one occasion,
Hughes and Nixon came over to his house to have
him "cook" nine ounces of crack for Hughes, and
on another occasion, Hughes directed him to cook
a kilogram of cocaine.
/4 All but two of the conversations during that time
frame between Woods and Hughes concerning these
transactions were recorded by law enforcement
agents.
Occurring on January 30 and 31, 1997, the first
two buys involved a total of four and one-half
ounces of cocaine (101.6 grams of crack and 127.1
grams of cocaine powder). The third buy occurred
on February 25, 1997, and involved another four
and one-half ounces (127.1 grams) of cocaine
powder. And on June 17, 1997, the fourth buy
occurred, involving approximately four and
one half ounces (125.7 grams) of cocaine base.
/5 It was later revealed that one of the guns was
purchased by Hughes’ girlfriend, Kim Robinson, on
July 1, 1994, and the other by his father, David
Hughes, on September 16, 1993.
/6 Even while housed at the Will County Jail on the
gun charges, Hughes was able to continue his drug
operation with the assistance of Nixon, his
girlfriend, Kim Robinson, and his father, David
Hughes.
/7 It appears that Hughes raised a constructive
amendment argument in his post-trial motion for
a new trial. Nonetheless, for purposes of our
review, because no objection was made during
trial, we apply the plain error standard of
review.
/8 The defendant also argues that his pre-trial
motion in limine adequately preserved his
challenge to the evidence of his uncharged drug
activity for appeal. Even though he moved in
limine to preclude twelve items of evidence that
are not at issue in this appeal, it is evident
from the record that his pre-trial motion failed
to include an objection to the admission of
evidence of his pre-1996 drug activity. But even
if we were to agree with the defendant and
generously construe his motion in limine to
include an objection to the evidence of his pre-
1996 drug activity, we note that it is clear from
the record that the trial judge’s ruling on the
motion in limine was conditional and tentative.
In fact, the judge essentially invited counsel to
raise the issue again at trial once the factual
context of the evidentiary challenges became more
apparent: "Well, if anything changes as far as a
predicate concern on any of these matters, we
will just take up a sidebar and I will rule. It
is always easier to rule after I know a little
bit more about a situation and the context."
(emphasis added). Thus, it should have been
obvious to the defendant’s counsel that it was
incumbent upon him to renew his objection at
trial, or otherwise forfeit the argument on
appeal. See Wilson v. Williams, 182 F.3d 562,
566-67 (7th Cir. 1999) (en banc) (stating that
when a trial judge makes a conditional or
tentative ruling on a pre-trial objection, the
party must renew the objection during trial to
preserve the litigant’s position for appeal).
Because he failed to renew his motion in limine
at trial after the judge had made clear that his
pre-trial ruling was tentative, his challenge to
this evidence is waived and thus, plain error
review must apply. See id. at 568.
/9 Hughes never raised a Rule 403 objection at
trial, but in spite of this fact, he contends
that the trial judge failed to weigh the
probative value of the pre-1996 drug activity
against its potential for unfair prejudice under
Federal Rule of Evidence 403. As the record
clearly demonstrates, the defendant did not make
a Rule 403 objection at trial, and without a
timely objection, the judge was not on notice to
engage in Rule 403 balancing. Thus, because
Hughes’ "counsel never objected under Rule 403 .
. ., we cannot say that it was plain error for
the court to allow the testimony." See United
States v. Bursey, 85 F.3d 293, 297 (7th Cir.
1996).
/10 Further, we also do not agree with the
defendant’s argument that evidence of his
uncharged drug activity constructively amended
the indictment in light of the jury charge which
adequately instructed the jury to consider the
evidence to each charged offense:
The indictment charges that the offense was
committed "on or about" certain dates. Although
the evidence need not establish with certainty
the exact date of the alleged offense, it must
establish that the offense was committed on a
date reasonably near the date charged.
. . .
Each count of the indictment charges the
defendant with having committed a separate
offense.
You must consider each count and the evidence
relating to it separate and apart from every
other count.
You should return a separate verdict as to each
count. Your verdict of guilty or not guilty of an
offense charged in one count should not control
your decision as to the defendant under any other
count.
Indeed, "the jury was instructed to consider
each count and the relating evidence separately;
there [is] no reason to suppose it would
disregard this mandate." United States v.
Coleman, 22 F.3d 126, 135 (7th Cir. 1994)
(citation omitted); see also United States v.
Stillo, 57 F.3d 553, 557 (7th Cir. 1995) (holding
that a criminal defendant "must rebut the dual
presumption that a jury will (1) capably sort
through the evidence and (2) follow limiting
instructions from the court") (quotation
omitted).
/11 A multiple conspiracies instruction attempts to
"preclud[e] the jury from using evidence relating
to a conspiracy in which [the defendants] did not
participate to convict them of the conspiracy
charged in the indictment." United States v.
Mims, 92 F.3d 461, 467-68 (7th Cir. 1996).
/12 Covering all possible arguments, Hughes also
argues that his counsel was constitutionally
ineffective by proposing a defective jury
instruction. Although we prefer not to consider
the merits of ineffective assistance of counsel
claims raised on direct appeal, we will do so
here because "the issue is sufficiently clear-
cut"--although, against the defendant. See United
States v. Limehouse, 950 F.2d 501, 503 (7th Cir.
1991). From our review of the record, we are
convinced that the trial judge is not obligated
to accept even a non-defective multiple
conspiracies instruction. Indeed, "[i]t is not
error to refuse a multiple conspiracies
instruction where the evidence does not warrant
such an instruction." See United States v. Lloyd,
25 F.3d 540, 547 (7th Cir. 1994); see also United
States v. Johnson, 32 F.3d 265, 268 (7th Cir.
1994) ("There is little, if any, need for a
multiple conspiracy instruction when the
defendant[ ] [is] at the hub of the various
possible agreements."). We conclude that Hughes
has failed to establish that he was prejudiced by
such ineffective assistance and we accordingly
reject his ineffective assistance of counsel
claim.
/13 At the sentencing hearing, the defendant did not
raise a Rule 32 objection, but did argue to the
judge that his counsel did not discuss the PSR
with him.