United States v. Mayes, Stephen L. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHEN L. MAYES, RAPHAEL S. CLAYTON,
JAQUAN T. CLAYTON, PAUL T. MOORE,
and ELLIS JORDAN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CR-148—J.P. Stadtmueller, Judge.
____________
ARGUED APRIL 12, 2004—DECIDED JUNE 8, 2004
____________
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.
EVANS, Circuit Judge. In this case, the government
charged several defendants with running a 10-year drug
distribution operation. Ellis Jordan and another defendant
entered guilty pleas and five defendants went to trial. On
appeal, we are concerned with two counts: count I, to which
Jordan entered a guilty plea and under which defendants
Stephen Mayes, Raphael Clayton, Jaquan Clayton, and Paul
Moore were convicted of conspiring to distribute over 5
2 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
kilograms of cocaine and 50 grams of “crack” cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) & 846, and count III,
under which Jaquan Clayton was found guilty of distribution
of cocaine in violation of 21 U.S.C. § 841(a)(1). The defen-
dants raise a number of trial and sentencing issues.
When viewed, as it must be at this point in time, in the
light most favorable to the government, the evidence shows
that the activities of the conspirators began in the early
1990’s. By 1991, Raphael Clayton (who we will refer to
simply as “Raphael”) and Jordan were dealing cocaine out of
their home at 2123 North 45th Street in Milwaukee, Wiscon-
sin. Raphael supplied at least 1 to 1½ ounces of cocaine
nearly every day to a crack house run by a gambling associ-
ate of his, and he sold another associate at least 6 to 7
kilograms of cocaine. Raphael worked in this enterprise with
Moore, Mayes, and Jaquan Clayton (we will call him
“Jaquan” the rest of the way); he shared the proceeds with
Jordan and fronted kilograms of cocaine to Moore.1
By the fall of 1993, Jaquan was delivering 4½-ounce
quantities to a half-brother at least once a day. Apparently,
sometimes the cocaine would not properly cook into crack;
Raphael was the one who took responsibility for defective
goods.
During this time, undercover police officers made three
controlled buys of cocaine from the home on 45th Street.
Also, executing a search warrant at the home in January
1991, officers found a gun and cocaine residue. Executing
another warrant in March 1993, they recovered eight bags
containing a total of 221 grams of cocaine, three handguns,
1
As will become important later in our discussion of the
sentencings of Paul Moore and Raphael Clayton, many of these
defendants are related to one another. For example, Ellis Jordan
is Raphael Clayton’s father; Jaquan Clayton and Allesando
Haynes are Raphael’s cousins; and Paul Moore and Steven Mayes
are cousins.
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 3
a “speed loader,” a digital scale, Inositol, a scanner, and a
book of police frequencies.
The defendants expanded their operation between 1995
and 1998. They began to transport drugs using cars outfit-
ted with “trap” compartments. The traps were used to move
up to 12 kilograms of cocaine and to hold $100,000 to
$125,000 in cash. Not all of their cars had traps, however,
and in March 1995, Raphael, Moore, and Jaquan were in a
car without one when they were stopped by police for
driving an automobile with an expired license plate. After
they were stopped, Raphael got out of the car and began
walking to the squad car. When he was at the front of the
squad he reached behind his back, which made the officer
fear he had a gun. The officer put the squad in reverse.
Raphael fled on foot, and the other defendants sped away
and then abandoned the car. In the abandoned car the
officers found a loaded gun and 6 bags containing a total of
760 grams of cocaine. When the officers caught Raphael a
short distance away from the site of the stop he had over
$5,000 in his pocket.
Undeterred, the defendants continued to sell cocaine.
Raphael, Moore, and Mayes delivered some 120 to 150
kilograms of cocaine to new customers Anthony Scott and
Rodney Davis. Raphael and Moore sold cocaine to Allesando
Haynes, who was also indicted in this case.
By 1996, however, Raphael and Moore pulled back from
the day-to-day selling and began to focus on buying real
estate. They also began to refer customers to other mem-
bers of the conspiracy. The two continued to handle cus-
tomer complaints. To settle one dispute, Moore helped
Rodney Davis buy a home.
In 1997 and 1998, Mayes began to maintain his own cus-
tomer base, using cocaine supplied to him by Paul Moore.
Paying Christopher Moore to help him, Mayes was selling
4 to 5 kilograms per day. Christopher Moore, who later
testified for the government, went with Mayes to Peoria,
4 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
Illinois, on a delivery; he helped Mayes break down a kilo
which had been delivered by Raphael and Jordan; he rode
along on other deliveries and was present when gunmen
kidnapped Mayes. The kidnapper demanded $90,000.
Mayes called Jordan to get the money and the gunmen
drove to the Jordan home, then at 10739 West Keefe in
Milwaukee. Amazingly, the police were called and, while
investigating the kidnaping, they stopped a Grand Marquis
going past the residence very slowly. In it they found a
loaded pistol. A few weeks later, Raphael was stopped after
leaving 10739 West Keefe. He was driving the same Grand
Marquis and had a loaded handgun with him in the car.
By 1999 the conspiracy caught the full attention of law
enforcement officers. They conducted garbage searches at
10739 West Keefe and found documents linking various
defendants together and to the residence on Keefe Street. In
March, officers executed a search warrant on the home.
They found cocaine, $10,000 wrapped in plastic, an addi-
tional $1,182, and a bulletproof vest. In the garage they
found two cars containing traps. In one trap they found 494
grams of cocaine, marijuana, a scale, and over $37,000. In
another, they found a loaded 9mm pistol. Officers also
searched an apartment leased by Raphael. There, they
found a bulletproof vest and photos linking the conspira-
tors. A few months after these searches, a federal agent
made a controlled buy of 4½ ounces of cocaine from Jaquan
for $3,000.
After he was indicted in August 2001, Paul Moore
disappeared. Two months later he was arrested while refi-
nancing properties at his attorney’s office. During the ar-
rest, he told a deputy United States marshal that if he had
obtained the money he would “be gone.”
As we said, the defendants before us either pled guilty or
were convicted after a jury trial. In January 2003, the
district court, Judge J.P. Stadtmueller, held a hearing re-
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 5
garding drug quantities for sentencing purposes and found
that each of the defendants sold or could foresee the sale of
over 340 kilograms of cocaine and 15 kilograms of crack
cocaine. Raphael and Moore were found to have played
leadership roles in the conspiracy, and Raphael and Jaquan
and Paul Moore were found to have possessed firearms.
Raphael, Moore, and Mayes (who had two prior drug
felonies) were sentenced to life imprisonment. Jaquan
received concurrent prison terms of 330 months on the
conspiracy count and 240 months on the delivery count.
Jordan, who as we said pled guilty, was sentenced to 180
months imprisonment for conspiracy. He was placed on
supervised release for 5 years, during which time he was to
be required to submit to drug and alcohol testing, to refrain
from working in a tavern, and to abstain from alcohol
consumption.
Raphael, Jaquan, Moore, and Mayes argue that they
should be granted a new trial because the trial judge erred
in allowing Christopher Moore to testify that an unknown
caller threatened him and his family if he testified at trial.
They claim that the admission of the testimony, over their
vigorous objections, was error and was unfairly prejudicial.
We review claims regarding the admission of evidence of
threats for an abuse of discretion. United States v. Thomas,
86 F.3d 647 (7th Cir. 1996).
Christopher Moore was a cooperating witness who, in
exchange for his testimony, obtained a promise from the
government that he would not be indicted for his involve-
ment in selling cocaine. He was asked to testify at the trial
on a Wednesday. He did not show up that day. When he
testified 2 days later, the government asked him why he
had not shown up on Wednesday. His answer was, “Because
my family was threatened.” The government then asked,
“How were they threatened?” Moore began, “Somebody
called my house and told my wife if I show up and testi-
fy . . . .”; at that point objections were lodged. He was
6 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
allowed to continue and said “that somebody—they was
going to kill me and my kids.”
The defense moved for a mistrial based on Moore’s
statement. Although the questions appeared to be intended
to explain why Moore had not shown up the day he was
asked to appear, in defending against the mistrial motion
the government argued that the testimony was necessary to
explain why he was groggy and upset on the stand. Judge
Stadtmueller found that although a “cold transcript” does
not convey demeanor very well, “it was more than clear that
[Moore] was under a great deal of stress and obviously for
good reason.” The judge noted that the government was
“quite restrained” and had taken an “antiseptic approach”
in presenting the testimony; in addition, the threat “was
properly brought before the jury as explanation for the
witness’s demeanor and, in part, to explain the witness’s
inconsistencies.”
Before us, the government points out that the testimony
was at best only a 2-minute snippet from a 10-day trial and
that no reference was made to the threats in closing
arguments. The government also claims that Moore’s de-
meanor needed to be explained. During his testimony he
had to be asked to speak up and needed to be reminded to
lift his head high enough to reach the microphone. Because
he testified to having been addicted to crack cocaine, absent
an explanation for his demeanor, the government argues,
the jury could have thought his behavior was a result of
drug use.
The issue, then, is whether under Federal Rule of Evi-
dence 403 the danger of unfair prejudice from the evidence
substantially outweighed its probative value. Evidence of
anonymous threats is not per se inadmissible. It may be
admissible when it is necessary to explain specific credibil-
ity issues. Gomez v. Ahitow, 29 F.3d 1128 (7th Cir. 1994). In
Thomas, we discussed a number of relevant cases and
concluded:
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 7
These cases indicate that trial courts must carefully
consider the probative value of threat evidence that is
to be admitted for the purpose of assessing the credibil-
ity of witnesses. Together Dudley and Gomez teach that
threat evidence has extremely limited probative value
towards credibility, unless the evidence bears directly
on a specific credibility issue regarding the threatened
witness. For example, threat evidence can be relevant
to explain a witness’ inconsistent statements, delays in
testifying, or even courtroom demeanor indicating
intimidation. See, e.g., Gomez, 29 F.3d at 1139; Qamar,
671 F.2d at 736 (holding threat evidence admissible
under Rule 403 to explain demeanor of witness who
testified almost inaudibly and visibly wanted to get off
witness stand); United States v. DeLillo, 620 F.2d 939,
945-46 (2nd Cir.) (holding threat evidence admissible
under Rule 403 to impeach witness), cert. denied, 449
U.S. 835, 101 S. Ct. 107, 108, 66 L. Ed. 2d 41 (1980). In
such situations, the evidence of threats is necessary to
account for the specific behavior of a witness that, if
unexplained, could damage a party’s case.
86 F.3d at 654.
In the present case, the evidence obviously poses a threat
of unfair prejudice, and its probative value is highly
questionable. Moore’s demeanor on the stand could have
easily been explained as the usual nervousness of a witness.
As to his appearing tired, he testified that he had just
finished working third shift at his job. In fact, on redirect,
he explained that during the preceding 48 hours he had not
slept and had worked three full shifts. The fact that he
testified on Friday, rather than Wednesday, could be
explained any number of ways. Juggling witnesses is a
normal trial event hardly requiring serious explanation. In
short, it is hard to see much in the way of probative value
to the testimony of threats. And so we conclude, on balance,
that it was an abuse of discretion to admit Moore’s threat
testimony.
8 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
That does not end the inquiry, of course. In order to be
the basis for the grant of a new trial, the admission of
evidence must not have been harmless. We deem an error
to be harmless unless it has a “ ‘substantial and injurious
effect or influence’ on the jury’s verdict.” United States v.
Hanson, 994 F.2d 403, 407 (7th Cir. 1993). In evaluating
whether an error is harmless, we consider such things as
the importance of the testimony, whether the evidence was
cumulative, whether other evidence corroborated the wit-
ness, and the strength of the government’s case. United
States v. Hernandez-Rivas, 348 F.3d 595 (7th Cir. 2003).
The error here, we conclude, was clearly harmless. The
testimony was very brief; it was not emphasized or high-
lighted. More importantly, the evidence of guilt was sig-
nificant. Approximately 40 witnesses linked the defendants
to each other and to the distribution of hundreds of kilo-
grams of cocaine and large quantities of crack cocaine. The
evidence shows a long-term operation that used tools of the
trade, such as pagers and trap cars, to accomplish its goals.
While it is true that a good deal of the testimony came from
cooperating witnesses, it is for the jury to assess that
testimony. And the testimony was corroborated by testi-
mony from law enforcement personnel. There were con-
trolled buys, evidence seized during the execution of search
warrants, evidence obtained from traffic stops, items found
in garbage searches, and property records, all of which lent
credibility to the testimony. We cannot find that the very
limited questioning about a threat had a substantial and
injurious effect on the verdict or could possibly support the
grant of a new trial.
Raphael also contends that it was an abuse of discretion
to admit out-of-court statements by two informants that
they could purchase cocaine from “Raphael” at 2123 North
45th Street. The evidence was admitted not for its truth but
rather to explain why police officers took steps to make
controlled buys and to execute search warrants at that
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 9
address. Raphael, however, contends that, even for that
limited purpose, the reference to “Raphael” was hearsay,
violated the Confrontation Clause, and was unfairly
prejudicial.
The government concedes that the identification of
“Raphael” was not necessary and should not have been
admitted, but it argues that admission of the evidence was
harmless. We agree. The references were brief. No limiting
instruction was requested. The identifications were not re-
ferred to in closing arguments. More importantly, the evi-
dence was cumulative. Finally, we note that the evidence of
Raphael’s involvement with the conspiracy was overwhelm-
ing. Other evidence was properly admitted about the
controlled buys and the searches. Even without the refer-
ences to “Raphael,” the jury knew that Raphael Clayton was
linked to the 45th Street house. He, in fact, did not dispute
that he lived in the house but, rather, attempted to suggest
that Ellis and Patricia Jordan, who also lived there, were
the drug dealers. He cross-examined the officers to show
that he was not present during the searches, that drugs
were found in the Jordans’ bedroom, and that both Ellis and
Patricia Jordan were charged with drug offenses in state
court. The admission of a reference to “Raphael” was
harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18 (1967).
Paul Moore raises an issue regarding the sufficiency of
the evidence to sustain the conspiracy verdict against him.
When reviewing the sufficiency of the evidence, we consider
the evidence and all reasonable inferences that can be
drawn from it in the light most favorable to the govern-
ment. United States v. Patterson, 348 F.3d 218 (7th Cir.
2003). If, after viewing the evidence, any “rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt,” the conviction will be affirmed.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
10 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
To sustain the verdict of conspiracy to distribute cocaine,
the government must have proven that the conspiracy
existed and that Moore knowingly joined it with the intent
to further its goals. United States v. Albarran, 233 F.3d 972
(7th Cir. 2000). Moore concentrates on the second require-
ment and claims that the proof was insufficient to show
that he joined the conspiracy. He contends that
the cooperating witnesses who put him in the conspiracy
were all lying. The problem with that contention, of course,
is that the jury, not appellate judges, determines issues
of credibility. United States v. Moninaro, 877 F.2d 1341 (7th
Cir. 1989). In addition, Judge Stadtmueller, who also heard
the evidence, rejected Moore’s claim. The judge named six
witnesses who provided “telling evidence” against Moore.
Their testimony, when coupled with testimony from law
enforcement officials, put Moore in the thick of a conspiracy
which dealt large amounts of cocaine. The evidence was
sufficient to sustain the verdict against him.
We turn now to sentencing issues. Moore and Raphael
contend that the district court erred in imposing 4-level
increases to their offense levels for their role in the offense
under U.S.S.G. §3B1.1(a). In particular, Moore says that the
judge did not make the findings required under the applica-
tion notes and did not adequately explain the reasons for
the increase. Raphael claims the adjustment was improper
because the evidence established nothing more than an
association of equals.
U.S.S.G. §3B1.1(a) provides for a 4-level increase if “the
defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive . . . .” The application notes set out factors which
should be considered in distinguishing a leadership and
organizational role from a role as a “mere” manager or
supervisor. These include “the exercise of decision-making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 11
right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree or
control and authority exercised over others.”
The government argues that both Moore and Raphael
exercised decision-making authority and exerted control
over others. The evidentiary basis for this assertion, how-
ever, is less than compelling. The evidence is that Raphael,
for instance, decided who would deliver cocaine and at what
price. He is also the one who said that if the cocaine was not
good he would take care of it. Raphael and Moore are both
said to have referred dealers to one another. Also, Raphael
once mediated a dispute between dealers. The government
also says that the two men insulated themselves from the
dirty work and reaped more profits than the other members
of the conspiracy. The evidence of the profits primarily
consists of expensive cars and real property. We are not,
however, provided with information about what sort of
profits other members of the conspiracy derived from the
business. It is hard to guess how much more lucrative the
business was to Raphael and Moore than to the others.
In fact, in sentencing Moore, the judge referred to the
“limited information” available in the presentence report
and relied on it and evidence at trial which, he concluded,
supported, in fact mandated, the adjustment. He said that
Moore and Raphael were the “the glue that kept this
conspiracy together.” Maybe that is true, but based on the
findings which were made and the amorphous nature of the
record on this point, we cannot tell whether the adjust-
ments were imposed erroneously or not. We are not sure
what specific facts form the underpinning of the adjust-
ment. Where there is a paucity of findings and evidence, we
remand for resentencing. See United States v. Schaefer, 291
F.3d 932 (7th Cir. 2002). A remand is appropriate in this
case, particularly because the 4-level upward adjustment in
this case is quite significant. It qualified Moore and Ra-
12 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
phael for life sentences. The adjustment is obviously
provided in the guidelines to distinguish those in control of
the drug business from those who participate in some lesser
role, even if that role carries managerial responsibility. It
should not be imposed where the evidence is vague at best.
In addition, there are facts which would seem to militate
against the imposition of the adjustment. For example,
when the operation began in 1991 Moore was approximately
17 years old. Raphael was 16 and living with his parents,
who also were participants in the operation. Raphael argues
compellingly that the evidence shows that this group was
loose-knit and joined by friendship, as well as neighborhood
and family ties. There is nothing remotely resembling a
hierarchy which we find at the other end of the spectrum,
say, with the Gangster Disciples. Accordingly, we are
remanding for reconsideration of the adjustments.
Moore also contends that the court erred in holding him
responsible for over 150 kilograms of cocaine and over 1.5
kilograms of crack. The argument is without merit. We re-
view the drug-quantity calculation for clear error. United
States v. Hamzat, 217 F.3d 494 (7th Cir. 2000). As the
application note to U.S.S.G. §2D1.1 states, the drug quan-
tity calculation does not need to be performed with mathe-
matical precision. And a defendant’s relevant conduct
includes all reasonably foreseeable acts of others—acts un-
dertaken in the course of the offense. On this issue, Judge
Stadtmueller undertook a very detailed analysis. He
ordered the government to prepare a drug quantity table,
complete with transcript references. On its face the table
showed that the defendants distributed over 360 kilograms
of cocaine and over 19 kilograms of crack. After examining
the evidence, the judge determined that 343 kilograms of
cocaine and “close to 15 kilograms of crack cocaine” were
attributable to the defendants. We cannot say that this
finding was clearly erroneous.
Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586 13
Finally, Ellis Jordan objects to conditions imposed during
his supervised release—which, we note, will not begin for
quite awhile; in fact, not until he completes serving a long
180-month prison term. The conditions are that he partici-
pate in a program of testing and treatment for drug and
alcohol abuse and that he refrain from using alcohol or from
working in a tavern. Jordan did not object to these condi-
tions at sentencing; consequently, our review is only for
plain error. United States v. Guy, 174 F.3d 859 (7th
Cir. 1999). While we can find no plain error on this record,
we are constrained to say that the conditions appear to be
a tad unnecessary. Jordan will have been in prison for
nearly 15 years by the time the conditions kick in. Any
drinking problem he might have had—and the government
concedes there is little evidence that he has a drinking
problem—might very well be effectively treated during his
prison tour. He also has no history of working in a tavern;
in fact, his employment history shows that he worked some
25 years for the same company—Rexworks. By the time he
is released from prison he will be approximately 68 years of
age. If he makes it that far, the poor fellow might well
deserve a martini or a glass of Cabernet Sauvignon . . . . or
at the very least a visit to a local tavern. On top of this, it
seems to us that a busy probation office might well have
better things to do than test someone like Jordan for drug
or alcohol use a decade and a half from now. However, as
we said, we cannot say that imposing the conditions
constitutes plain error so we will not disturb them. That
said, we would certainly not be aghast if the sage district
judge were inclined to take another look at the situation.
Accordingly, the judgments of conviction for all
defendants are AFFIRMED. The sentences of Paul Moore and
Raphael Clayton are VACATED and REMANDED for reconsid-
eration of the adjustment under U.S.S.G. §3B1.1(a) as
indicated herein; the sentences, in all other respects and to
all other defendants, are AFFIRMED.
14 Nos. 03-1245, 03-1246, 03-1266, 03-1283 & 03-1586
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-8-04