United States v. Luster, Dewayne ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4312
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEWAYNE LUSTER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 74—Sarah Evans Barker, Judge.
____________
ARGUED MAY 1, 2006—DECIDED MARCH 15, 2007
____________
Before EASTERBROOK, Chief Judge, and MANION and
SYKES, Circuit Judges.
SYKES, Circuit Judge. A jury convicted Dewayne Luster
of conspiring to possess cocaine with intent to distribute,
and the district court sentenced him to 200 months’
imprisonment. Luster claims the trial evidence was
insufficient to support his conviction. He also argues
the district court erred in admitting testimony that he
purchased drugs from one of the coconspirators prior to
the charged conspiracy. Lastly, he challenges his guide-
lines sentencing enhancement for possession of a fire-
arm by his coconspirators. We find none of Luster’s argu-
ments persuasive and affirm his conviction and sentence.
2 No. 05-4312
First, ample evidence supported the jury’s finding that
Luster participated in an extensive cocaine distribution
operation headed by codefendant Prentice Davis. Numer-
ous recordings of telephone conversations between Luster
and Dramane Johnson, Davis’s primary distribution
agent, showed Luster placing frequent orders for large
quantities of cocaine he knew were tied to Davis. This
and other evidence permitted the inference that Luster
worked cooperatively with Johnson and Davis to distrib-
ute cocaine and was not merely in a “buyer-seller” rela-
tionship with them, as he maintains. Second, the evidence
Luster argues should have been excluded—Davis’s testi-
mony that Luster bought cocaine from him in 2000—was
properly admitted under the “inextricably intertwined”
doctrine because it provided the jury essential back-
ground information about the origins and operational
structure of the charged conspiracy. Third, the district
court properly applied the firearms sentencing enhance-
ment because Luster reasonably could have foreseen that
Davis and Johnson possessed firearms in furtherance of
their large cocaine distribution enterprise.
I. Background
Federal agents linked Dewayne Luster to a cocaine
distribution ring Prentice Davis ran out of his Indianapolis
music studio. Davis would purchase large quantities of
cocaine on credit from a supplier in Chicago and then pay
Dramane Johnson, his cousin, to resell most of it to
smaller distributors in the Indianapolis area. The govern-
ment alleged Luster was one such distributor because
on several occasions agents observed him (either via
wiretaps or surveillance) placing and discussing orders
with Johnson for “tank tops” and “tee shirts,” words the
government contended were code for 4.5 and 9 ounces of
cocaine, respectively. The government ultimately charged
No. 05-4312 3
Davis, Johnson, Luster, and four others with conspiracy
to distribute cocaine from September 2003 to May 2004,
but only Luster proceeded to trial. A jury convicted him
and the district court sentenced Luster to 200 months’
imprisonment.
At trial the government presented three categories of
evidence against Luster: (1) wiretap and surveillance
records of Luster’s dealings with Davis and Johnson;
(2) physical items seized from Luster’s apartment; and (3)
Davis’s testimony detailing the system by which he and
Johnson structured their cocaine transactions, some of
which involved Luster. The wiretap and surveillance
evidence included several recordings of phone conversa-
tions from 2003 and 2004 in which Luster ordered “tank
tops” from Johnson. Acting on one of these conversations,
local law enforcement officers observed Luster and John-
son meeting in person in a liquor store parking lot in
February 2004 to discuss a “tank top” order. The evidence
seized from Luster’s apartment included detailed ledgers
and a cocaine “rebricker,” two items a testifying federal
narcotics agent identified as common tools of the cocaine
trade.
Davis, testifying pursuant to his plea agreement,
explained at length the inner workings of his cocaine
distribution operation. After driving to Chicago to pick up
multiple kilograms of cocaine, Davis would return to
Indianapolis and pay Johnson to do most of the leg work.
Though Davis occasionally sold cocaine directly to custom-
ers, it was generally Johnson who brokered individual
transactions and found new customers, and Davis paid
him at a rate of $500 per kilogram sold or delivered.
Johnson had unfettered access to Davis’s cocaine and was
permitted to sell it without first paying Davis or obtain-
ing his permission. Johnson’s only obligation was to reim-
burse Davis at a predetermined wholesale rate for the
cocaine he sold. In addition to the $500-per-kilogram flat
4 No. 05-4312
fee, any percentage Johnson charged his customers
above the wholesale rate was his profit to keep.
Davis testified that he neither sold drugs nor discussed
drugs with Luster from September 2003 to May 2004, the
period of the alleged conspiracy. Davis did state, however,
that he saw Luster and Johnson together as often as twice
a week during this period, and that he generally had no
interest in knowing the identities of the people buying
his cocaine from Johnson. Davis also testified about a
2000 incident in which Luster stopped by his recording
studio. Luster said he was tired of purchasing Davis’s
cocaine from “Rio,” one of Davis’s other middlemen, and
asked to buy a half-kilogram directly from Davis. Davis
sold the cocaine to Luster, but because Luster ultimately
paid only $7000 of the $11,500 the two agreed upon, Davis
refused to make any future sales directly to Luster. Luster
had opposed the government’s pretrial motion to admit
Davis’s testimony about the 2000 transaction, arguing
that it was prejudicial “other acts” character evidence,
but the district court ruled the testimony admissible under
the “inextricably intertwined” doctrine and as evidence of
Luster’s knowledge and intent, permissible noncharacter
purposes under Federal Rule of Evidence 404(b).
The trial lasted one week and culminated in a jury
verdict against Luster. At sentencing Luster objected to
the proposed finding in his presentence report that
possession of firearms by his codefendants was reasonably
foreseeable to him, a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1). The district court overruled
Luster’s objection and factored the enhancement into
Luster’s advisory guidelines range of 188 to 235 months.
The court then sentenced Luster to 200 months’ impris-
onment and 5 years’ supervised release.
No. 05-4312 5
II. Discussion
Davis raises three challenges to his conviction and
sentence. First, he claims the evidence adduced at trial
was insufficient to support the jury’s determination that
he conspired to possess cocaine with intent to distribute
between September 2003 and May 2004. Second, he
maintains the district court abused its discretion by
allowing Davis to testify about the 2000 drug transaction.
Third, he argues the district court clearly erred at sen-
tencing by finding that Luster could have reasonably
foreseen the possession of firearms by his coconspirators.
All three claims lack merit.
A. Sufficiency of the Evidence
Defendants challenging the quantum of evidence sup-
porting a jury verdict face a daunting task. We view the
evidence in a light most favorable to the prosecution and
will reverse only if no juror could have found guilt beyond
a reasonable doubt. United States v. Leahy, 464 F.3d 773,
794 (7th Cir. 2006). As such, the question we must ask
ourselves is whether any rational juror could have found
that between September 2003 and May 2004, Luster
conspired to possess cocaine with the intent to distribute
it. Stated more precisely to reflect the elements of a drug
conspiracy, the question is whether any rational juror
could find that (1) two or more people agreed to possess
and distribute cocaine, and (2) Luster knowingly and
intentionally joined in this agreement. United States v.
Rock, 370 F.3d 712, 714 (7th Cir. 2004). The government’s
evidence at trial easily permitted the inference that
Luster intentionally participated in such an agreement.
Standing alone, a simple buyer-seller relationship does
not establish a conspiratorial agreement because each
party acts “at arms-length, each trying to get the better
6 No. 05-4312
deal, rather than cooperatively.” United States v. Shi, 317
F.3d 715, 717 (7th Cir. 2003). Had Luster engaged in a
one-time transaction with Johnson and had no deal-
ings with him before or after, this might look more like a
buyer-seller relationship than a conspiracy. See United
States v. Smith, 34 F.3d 514, 523 (7th Cir. 1994). But the
evidence shows a prolonged cooperative relationship
between Davis, Johnson, and Luster, replete with code
words, routine and standardized transactions, and a
significant degree of mutual trust and dependence, all
strong indicia of a conspiratorial agreement. United States
v. Tingle, 183 F.3d 719, 724 (7th Cir. 1999).
Luster was aware as early as 2000 that Davis was
dealing cocaine, and during the conspiratorial period,
Luster purchased Davis’s cocaine from Johnson so fre-
quently that on one occasion instead of ordering his usual
“tank top,” he was overheard telling Johnson to give him
the “same” as last time. While repeat sales, even when
characterized by a certain comfort and regularity, do not
alone establish a conspiratorial relationship, United States
v. Contreras, 249 F.3d 595, 600 (7th Cir. 2001), when
taken together with the evidence of Luster’s prolonged
stake in and knowledge of the Davis-Johnson venture, they
paint a convincing picture of a conspiracy, that is, a
criminal agreement of mutual trust, dependence, and
cooperation. See United States v. Medina, 430 F.3d 869,
881 (7th Cir. 2005); see also United States v. Hall, 109 F.3d
1227, 1232 (7th Cir. 1997) (“Routine sales for resale can
create a mutual interest between buyer and seller in
maintaining their continuing relationship that extends
beyond the moment of each individual sale.”). Luster
trusted Johnson to deliver the cocaine to his apartment
and even warned Johnson against making a delivery on
one occasion because Luster had unexpected company at
his apartment. Moreover, just as the success of Luster’s
mid-level cocaine distribution business depended upon a
No. 05-4312 7
steady flow of bulk cocaine from Johnson and Davis, the
success of the Davis-Johnson operation, which obtained
cocaine on credit from a Chicago supplier, depended upon
reliable downstream distributors like Luster to patch
into the retail market. In other words, it took the coopera-
tion of Luster, Johnson, and Davis to keep the regular
and profitable flow of cocaine from bulk supplier to end
user moving. A rational juror could easily conclude from
the government’s evidence, including the ledgers and
“rebricker” found at his apartment, that Luster intention-
ally participated in a cooperative, pyramid-style arrange-
ment to possess cocaine with the intent to distribute it.
B. Admissibility of the 2000 Transaction Between
Luster and Davis
Luster also claims the district court should have ex-
cluded Davis’s testimony concerning his 2000 cocaine
transaction with Luster. We review evidentiary rulings
for abuse of discretion. United States v. Conley, 291 F.3d
464, 472 (7th Cir. 2002). Because the indictment alleged
a conspiracy lasting from 2003 to 2004, Luster argues
that evidence of the 2000 drug transaction constituted
unduly prejudicial “propensity” evidence. The district
court disagreed, finding the evidence admissible under
“either or both” the “inextricably intertwined” doctrine or
Rule 404(b). The record contains ample support for the
district court’s ruling.
Acts that are “inextricably intertwined” with the crime
on trial are admissible in this circuit because they lie
outside the purview of the Rule 404(b) character/propen-
sity prohibition, United States v. McLee, 436 F.3d 751, 760
(7th Cir. 2006), the logic being that Rule 404(b) only
applies to “other” crimes, wrongs, or acts, not acts directly
related to (i.e., “inextricably intertwined” with) the
crime on trial. United States v. Senffner, 280 F.3d 755,
8 No. 05-4312
764 (7th Cir. 2002). The “inextricably intertwined” doctrine
is not without its critics, United States v. Bowie, 232 F.3d
923, 927-28 (D.C. Cir. 2000), but has nonetheless consis-
tently been applied in this circuit. E.g., McLee, 436 F.3d at
760; United States v. Ojomo, 332 F.3d 485, 489 (7th Cir.
2003). Evidence is inextricably intertwined if it helps to
complete the story of the crime by filling a conceptual or
chronological void. McLee, 436 F.3d at 760. Davis’s testi-
mony that he sold Luster a half-kilogram of cocaine in
2000, but thereafter refused to directly sell to him, helped
the jury fill a conceptual void in the government’s
case—the lack of any direct dealings in 2003 and 2004
between Luster and Davis, the conspiracy ringleader.
Prior to Davis’s testimony, the jury heard a wealth of
evidence linking Luster and Johnson during the conspira-
torial period. Indeed, based on the wiretap and surveil-
lance evidence, the jury might have thought the only
person Luster conspired with was Johnson. But the
government alleged a conspiracy headed by Davis, not
Johnson, and thus the 2000 Davis-Luster transaction
helped the jury piece together the contours of the charged
conspiracy and the relationships among its actors.
Davis’s testimony about the 2000 drug transaction
helped explain why Luster obtained Davis’s cocaine from
Johnson, not Davis, in 2003 and 2004. Luster’s inability
to repay all of the $11,500 he owed Davis for the 2000
transaction soured Davis to the idea of using Luster
directly as a primary distributor in 2003 and 2004. The
transaction also showed that Luster was well aware of
Davis’s role as kingpin of the operation despite his exclu-
sive dealings with Johnson in 2003 and 2004. In short, the
2000 transaction rounded out the jury’s understanding
of the operational structure of the conspiracy as it ap-
peared in 2003 and 2004. This type of informative back-
ground evidence is especially probative and useful to the
jury in drug conspiracy cases. McLee, 436 F.3d at 760;
No. 05-4312 9
United States v. Hughes, 213 F.3d 323, 329 (7th Cir. 2000).
Moreover, any prejudicial effect was blunted by the
limiting instruction the district court gave at the conclu-
sion of Davis’s testimony. Thus, we cannot say the dis-
trict court abused its discretion in admitting testimony
concerning the 2000 drug transaction.
Because we find the “inextricably intertwined” doctrine
supported the admissibility of the 2000 transaction, we
need not address the district court’s alternative conclu-
sion that the evidence was not inadmissible under
Rule 404(b). In the interests of clarity, however, we
briefly note that even though the “inextricably inter-
twined” doctrine is premised upon the inapplicability of
Rule 404(b), Senffner, 280 F.3d at 764, in practice the
two standards may overlap. See United States v. Robin-
son, 161 F.3d 463, 470 (7th Cir. 1998) (explaining that
postrobbery flight can be construed as intricately related
to the robbery itself and thus outside the scope of Rule
404(b) or as evidence of a guilty conscience admissible
as noncharacter evidence under the exception to the rule).
Such is the case with Davis’s testimony concerning his
2000 cocaine sale to Luster. On one hand it provides a
vital background story to the charged conspiracy that
renders it admissible under the inextricably intertwined
doctrine. It could also be construed as an “other” act
tending to show Luster’s knowledge of Davis’s operation
and specific intent to join the conspiracy, two permissible
noncharacter purposes under Rule 404(b). In other words,
there was nothing inherently contradictory in the dis-
trict court’s ruling that the testimony was admissible
under the “inextricably intertwined” doctrine and as
permissible noncharacter evidence of knowledge and in-
tent under Rule 404(b).
10 No. 05-4312
C. The Firearms Sentencing Enhancement
Luster also challenges his two-point sentencing enhance-
ment under U.S.S.G. §§ 2D1.1(b)(1) and 1B1.3(a)(1)(B)
for possession of firearms by his coconspirators. He
maintains he had no idea of the scale of the Davis-Johnson
operation and thus could not have reasonably foreseen the
possibility that the two men would possess firearms
in connection with it. We review the district court’s fact-
finding on the enhancement for clear error. United States
v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2002). Because
one permissible inference from the record is that Luster
knew Johnson and Davis possessed firearms in connec-
tion with their large cocaine operation, the district court
did not clearly err in applying the enhancement.
Although U.S.S.G. § 2D1.1(b)(1) appears to penalize only
those defendants who actually possess a firearm in the
course of committing a drug offense, section 1B1.3(a)(1)(B)
makes clear that defendants can also be on the hook
for firearms possessed by their coconspirators so long as
such possession was reasonably foreseeable. Put another
way, before applying the section 2D1.1(b)(1) enhancement
to a defendant like Luster who was not himself found to
have possessed a firearm during the conspiracy, the
district court must make two findings. First, it must
find by a preponderance of the evidence that someone in
the conspiracy actually possessed a firearm in furtherance
of the conspiracy. United States v. Olson, 450 F.3d 655,
684 (7th Cir. 2006). This is not an onerous burden, as
firearms found in close proximity to illegal drugs create a
presumption that they are possessed in connection with
the drug offense. United States v. Booker, 248 F.3d 683,
689 (7th Cir. 2001). Here, the record established that
Davis stored large quantities of drugs and firearms at his
music studio during the conspiratorial period. It also
established that Johnson regularly carried a gun during
the course of the conspiracy. This evidence supports
No. 05-4312 11
the district court’s conclusion that Davis and Johnson pos-
sessed firearms in connection with the drug conspiracy.
Second, the district court must determine that the
coconspirator’s firearm possession was reasonably fore-
seeable to the defendant. U.S.S.G. § 1B1.3(a)(1)(B). The
evidence established that Luster visited Davis’s music
studio many times during the conspiracy. His frequent
presence at the studio, where the drugs and guns were
stored, and his knowledge of Davis’s large-scale cocaine
distribution operation, raise the inference that he could
have reasonably foreseen his coconspirator’s possession of
firearms for intimidation or protection. See United States
v. Cantero, 995 F.2d 1407, 1412 (7th Cir. 1993) (“[D]rug
dealers often carry weapons to protect themselves and
their large amounts of drugs and cash.”). Moreover, the
evidence established that Johnson regularly carried a
gun and also that on at least one occasion during the
conspiracy, Luster asked Johnson for his help in delivering
cocaine to one of Luster’s customers. Luster reasonably
could have foreseen that Johnson would carry a firearm
for protection or intimidation when accompanying him on
such deliveries. Based on the record as a whole, the
district court did not err in finding that Luster reasonably
could have foreseen the possession of firearms by Davis
and Johnson. Luster’s claim that he could not have
foreseen the possession of firearms in Davis’s cocaine
operation is particularly unpersuasive given that during
part of the conspiracy, Luster himself was on home
detention for his third conviction for carrying a firearm
without a license.
AFFIRMED.
12 No. 05-4312
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-07