United States v. Thomas, Terry ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4222
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 902—Rebecca R. Pallmeyer, Judge.
____________
ARGUED MARCH 28, 2007—DECIDED MARCH 24, 2008
____________
Before POSNER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. A jury convicted Terry Thomas
of possessing and conspiring to possess heroin and crack
cocaine with intent to distribute. Thomas asks us to
reverse his convictions on the grounds that (1) the trial
evidence established multiple conspiracies at variance
with the single charged conspiracy; (2) the federal pros-
ecution was vindictive because the grand jury returned
the indictment against him while he was under state
charges for the same conduct; and (3) the government’s
closing remarks about the seriousness of the case and the
2 No. 05-4222
“burden” of living in a drug-infested neighborhood
deprived him of a fair trial. He also challenges his 360-
month sentence on the theory that the district court mis-
applied the career offender sentencing guideline and
imposed an unreasonable sentence. We reject these argu-
ments and affirm Thomas’s convictions and sentence.
I. Background
Chicago police officers investigating open-air drug
sales in a south-side neighborhood observed Terry Thomas
directing street-level drug trafficking on four separate
dates in 1999. On the morning of September 5, undercover
officers watched from an abandoned building as Thomas
and two others worked in concert to peddle drugs to
passing motorists and pedestrians in the 800 block of
West 50th Place. Thomas and one of his accomplices
solicited potential business by shouting “rocks” (slang
for crack cocaine) at passing cars. The third accomplice,
a woman, stood a few doors down from Thomas ready
to make the sales. Prior to directing a customer to the
woman, Thomas ordered the second accomplice to search
a nearby alley. After learning the alley was clear,
Thomas relayed a signal to the woman, who then pulled
what appeared to be drugs from her bra and made the
sale. Minutes later, officers observed a similar sequence
of events as a second customer approached the woman.
Shortly thereafter, Thomas became suspicious that police
were watching these transactions and ordered the
second accomplice to check the building. The accomplice
entered the building and was arrested by the officers
positioned inside. The police also arrested Thomas.
Two days later Thomas was back on the street. On
September 7 uniformed Chicago police officers patrolling
No. 05-4222 3
the same block of West 50th Place noticed several people
forming a queue in an alley. The officers drove into the
alley and overheard Thomas, whose back was to them,
yelling “rocks” and “blows” (slang for heroin). As the
people in the line scattered, Thomas turned, made eye
contact with the officers and yelled, “four-seven,” a
street term meaning “police.” The officers detained and
searched Thomas but found no contraband.
About seven weeks later, on the morning of October 22,
an undercover officer positioned in an abandoned build-
ing again observed Thomas shouting “rocks” and “blows”
at passing cars in the same block of West 50th Place. One
car stopped in front of Thomas, who after briefly talking
with the driver, pointed to a woman standing on the
sidewalk. The driver then got out of his car, approached
the woman, and gave her some money. The woman
responded by dropping what appeared to be a small bag
of drugs in the driver’s hands. The officer stuck his
head out of the window to better observe the woman, but
in doing so drew the attention of a young man on the
sidewalk directly below him. The young man then crossed
the street and talked to Thomas, and both men pointed up
at the abandoned building. Thomas then jogged toward
the woman conducting the drug sales, shouting some-
thing at her as he approached; she responded by running
down a nearby gangway and out of sight. The officer
radioed the woman’s description and location to nearby
officers, but they were unable to locate her.
Twelve days later, on the morning of November 3,
undercover officers posing as construction workers posi-
tioned themselves in the back of a school bus parked
close to West 50th Place. The officers watched and heard a
man, later identified as Michael War and charged as
4 No. 05-4222
Thomas’s coconspirator, making noises at people
walking through the alley. War referred anybody who
responded to his solicitation to a man seated on a nearby
porch, later identified as Tyrone Thompson and also
charged as a coconspirator. The officers watched Thomp-
son make several drug sales, and then observed Thomas
approach War and ask, “Are you out?” War in turn asked
Thompson, “Are you out?” Thompson said he was, and
Thomas told War, “Meet me by the yard.” Thomas then
resupplied War from a small bag he retrieved from a
larger one stashed under a shrub. At this point the officers
moved in and arrested War, Thompson, and Thomas,
and recovered the bags. The smaller bag contained 2.9
grams of heroin; the larger one contained 11.2 grams of
heroin and 15.1 grams of crack.
Based on the November 3 incident, Thomas was in-
dicted on one count of possessing heroin and in excess of
5 grams of crack with intent to distribute. By way of
superseding (and later amended) indictments, the govern-
ment added a conspiracy count alleging that from August
to November 1999, Thomas conspired with War, Thomp-
son, and unnamed others to possess heroin and in excess
of 5 grams of crack with intent to distribute. A jury con-
victed Thomas on both counts, and the district court
sentenced him to 360 months’ imprisonment.
II. Analysis
A. The Conspiracy Conviction
Thomas’s primary argument is that the trial evidence
was insufficient to prove the single drug conspiracy
charged in the indictment. Thomas does not directly
challenge the evidence against him stemming from the
No. 05-4222 5
four days of police surveillance at the West 50th Place
drug market in 1999. He instead argues that because the
evidence established that he worked with different accom-
plices and assumed somewhat different roles on each of
those four dates, no rational juror could find from these
four mini-conspiracies that he engaged in the single,
overarching conspiracy charged in the indictment. The
result, Thomas contends, was a fatal variance between
pleading and proof.
When an indictment charges a lone conspiracy, proof
of other conspiracies at trial is not problematic if the
evidence also establishes the charged conspiracy. See United
States v. Messino, 382 F.3d 704, 709-10 (7th Cir. 2004). The
threshold question in fatal-variance analysis is whether
sufficient evidence supported the charged conspiracy.
Id. at 709. Put another way, Thomas must convince us
that viewing the evidence in a light most favorable to the
government, no rational juror could have found the
single conspiracy alleged in the indictment. Id. This is a
nearly insurmountable hurdle for most defendants,
United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003),
and Thomas is no exception.
Thomas concedes that the evidence established he
conspired with others to sell drugs on each of the four
dates in 1999. Because all four incidents occurred within
a two-month span on the same block of West 50th Place,
a rational juror could easily conclude that the four
episodes were part of a single, overarching conspiracy
to carry on and protect an open-air drug market at this
location on Chicago’s south side during the late summer
and fall of 1999. The incidents observed by the police
were close in time and place and shared common charac-
teristics (the verbal marketing of “rocks” and “blows,” the
6 No. 05-4222
use of a lookout and a third person to conduct the hand-to-
hand transactions). This evidence supports the inference
of a common agreement “to further a single design or
purpose,” the defining characteristic of a conspiracy. United
States v. Bullis, 77 F.3d 1553, 1560 (7th Cir. 1996). The
singular purpose of the agreement was to transform this
block of West 50th Place into what was essentially an open-
air drug bazaar through which the dealers could
market their wares to the public protected by scouts and
lookouts who would alert them to any police presence. This
was a cooperative venture characterized by shared inter-
ests. See United States v. Shorter, 54 F.3d 1248, 1254 (7th Cir.
1995) (overlapping interests imply a single conspiracy).
As such, sufficient evidence supported the guilty verdict
on the conspiracy count.
The West 50th drug market might more aptly be de-
scribed as a collection of discrete conspiracies if the
evidence demonstrated a hodgepodge of competing
drug outfits trying to profit at the expense of the other
or each having an objective independent from the others.
See United States v. Duff, 76 F.3d 122, 126 (7th Cir. 1996);
Bullis, 77 F.3d at 1560 (“[I]f there are distinct illegal
ends and no overlapping interests between the alleged
coconspirators, then there are separate conspiracies.”
(quotation omitted)). But Thomas’s common presence
on all four dates supports the inference that he was direct-
ing, at the street level, the four groups in question in
pursuit of their shared, overlapping interests and a com-
mon goal. Thomas insists that his role as the common
denominator was pure coincidence. Given the simi-
larities between the four incidents, however, it is entirely
implausible to suggest that the police just happened to
stumble upon Thomas as he joined four new, discrete
No. 05-4222 7
conspiracies to sell drugs. See Bullis at 1561 (“[T]urnover
in the members of a conspiracy does not transform a
single conspiracy into multiple conspiracies so long as
there is a continuation of the original conspiracy’s pur-
pose.”).
In addition to being foreclosed by sufficient evidence
of a single conspiracy, Thomas’s fatal-variance claim
(also stated as a constructive-amendment claim) is ham-
strung by the fact that there was no variance between
pleading and proof. The indictment alleged a conspiracy
with War, Thompson, and unnamed others to distribute
drugs between August and November 1999. The four
incidents proved at trial fell within these parameters. See
Duff, 76 F.3d at 126. The indictment therefore notified
Thomas of all conduct to which criminal liability might
attach. See United States v. Payne, 226 F.3d 792, 795 (7th Cir.
2000); Duff, 76 F.3d at 126. The evidence adduced at trial
stayed within these confines and thus neither stood at
variance with nor constructively amended the indictment.1
1
Thomas also claims the district court constructively amended
the count charging possession with intent to distribute (alleging
he possessed heroin and in excess of 5 grams of crack “on or
about November 3, 1999”) by instructing the jury to find him
guilty if he constructively possessed the drugs himself on
November 3 (referring to the “resupplying” incident) or know-
ingly aided, counseled, or induced others’ possession on any
of the other four dates. The “on or about November 3” language
put Thomas on notice that he could be liable for any possession
on or about November 3, meaning “November 3” was not an
element of the offense. United States v. Folks, 236 F.3d 384,
391 (7th Cir. 2001). Thus, the instructions did not impermissibly
broaden the bases for conviction set forth in the indictment.
8 No. 05-4222
B. Vindictive Prosecution
Thomas contends the government abused the grand
jury process while he was under state charges for the
same conduct and added the conspiracy count for the
sole purpose of admitting “other acts” evidence under
Rule 404(b) of the Federal Rules of Evidence. Because he
made this claim in a pretrial motion denied by the dis-
trict court, we review the district court’s factual findings
for clear error and its legal conclusions de novo. United
States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003). Thomas
was awaiting trial on state drug charges (later dis-
missed) when the government commenced its grand jury
investigation. As such, Thomas claims federal pros-
ecutors improperly used the grand jury to fish for evid-
ence against an already indicted defendant. It is generally
improper for prosecutors to continue to use the grand
jury for the primary purpose of collecting evidence
against a defendant on a charge for which a federal indict-
ment has already been obtained. United States v. Badger,
983 F.2d 1443, 1459 (7th Cir. 1993). Under the doctrine of
dual sovereignty, however, a federal grand jury is free to
investigate a person who has been charged in state court
if he is not yet under federal indictment for that conduct,
see United States v. Heideke, 900 F.2d 1155, 1159 (7th Cir.
1990), which is precisely what happened in Thomas’s case.
Thomas also claims the prosecution was vindictive
because the government added the conspiracy count as a
“backdoor” attempt to introduce evidence of Thomas’s
prior drug convictions (one in 1996, the other in 1998).
Thomas’s theory is flawed in two respects. First, the
conspiracy count alleged a conspiracy in 1999 and there-
fore was not premised upon evidence of Thomas’s activi-
ties in 1996 and 1998; Thomas has not independently
No. 05-4222 9
challenged the admissibility of the prior convictions.
Second, there is nothing inherently vindictive about adding
a charge by superseding indictment if the government
has evidence the defendant committed the crime. Bullis,
77 F.3d at 1558-59. That the additional count makes it
easier for the government to argue for the admission of
“other acts” evidence does not make the prosecution of
the additional count vindictive.
C. Improper Closing Remarks
Thomas also contends that two comments the prosecutor
made to the jury during rebuttal closing argument de-
prived him of a fair trial.2 The first referenced the “burden
of living in a neighborhood that’s infected with drugs.” The
second was the prosecutor’s statement that Thomas “is
here in federal court. He’s facing federal charges. What
he did was a federal offense. It’s not a petty offense.”
Thomas’s failure to object to the second comment means
our review is for plain error only; Thomas must show
that (1) improper remarks by the proscutor (2) deprived
him of a fair trial (3) in a way that affected the outcome.
United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th
Cir. 2002). We need not discuss fairness or prejudice here
because the remarks were not improper. Thomas’s attorney
had suggested in closing argument that the incidents
underlying the alleged conspiracy involved mere “petty”
2
Thomas also maintains he was deprived of a fair trial by
surplusage in the indictment—specifically, certain sentencing
allegations. The surplusage he complains about, however,
was redacted from the indictment and never shown to the
jury and thus had no impact on the trial.
10 No. 05-4222
state offenses; the government could properly remind
the jury in rebuttal that federal drug and conspiracy
charges are not petty. See United States v. Torres, 809
F.2d 429, 435-36 (7th Cir. 1987).
That Thomas preserved his objection to the prosecutor’s
“burden” comment is immaterial because it was not
improper for the government to point out that living in
a drug-infested community “burdens” the neighborhood.
United States v. Zanin, 831 F.2d 740, 742-43 (7th Cir. 1987);
see Sandoval-Gomez, 295 F.3d at 762. The “burden” reference
was hardly an attempt to shift the burden of proof, as
Thomas argues. Indeed, immediately following the com-
ment the prosecutor reminded the jury that “we have
the burden of proof.” The court’s burden-of-proof instruc-
tion, together with its cautionary instruction about the
arguments of counsel, adequately protected against any
possible misinterpretation of the prosecutor’s reference to
the “burden” that drug dealing places on neighborhoods.
D. Application of the Career Offender Guideline
Thomas concedes that his prior felony convictions
made him eligible to be sentenced as a career offender
under the sentencing guidelines. U.S.S.G. § 4B1.1 (2005). He
instead argues that the district court misapplied the
career offender guideline by failing to properly deter-
mine the statutory maximum punishment for his underly-
ing conviction, a necessary step in computing the offense
level under § 4B1.1(b). Even though the guidelines are
advisory, the district court must accurately calculate and
consult the defendant’s guidelines range. United States v.
Booker, 543 U.S. 220, 264 (2005); United States v. Rodri-
guez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). We review
No. 05-4222 11
de novo the district court’s interpretation of the guidelines.
United States v. Melendez, 467 F.3d 606, 607 (7th Cir. 2006).
The career offender guideline pegs a defendant’s offense
level to the statutory maximum punishment for the under-
lying crime of conviction. U.S.S.G. § 4B1.1(b). Crimes
punishable by life imprisonment receive an offense level
of 37. This offense level when combined with a cate-
gory VI criminal history (required here) yields an ad-
visory sentencing range of 360 months to life. Crimes
punishable by 25 years or more, however, receive an
offense level of 34, yielding a range of 262 to 327 months.
Because Thomas had a conviction for a prior drug
felony, the applicable statutory maximum punishment
for dealing 5 grams of crack cocaine is life imprisonment.
21 U.S.C. § 841(b)(1)(B)(iii); see also United States v. Edwards,
397 F.3d 570, 572 (7th Cir. 2005) (holding that “cocaine
base” means “crack cocaine” for purposes of the en-
hanced penalties under § 841(b)). Had Thomas possessed
the same quantity of noncrack cocaine, however, the
statutory maximum would be 30 years. 21 U.S.C.
§ 841(b)(1)(C). In other words, a career offender con-
victed of dealing in excess of 5 grams of crack cocaine
receives an advisory sentencing range of 360 months to
life, whereas the same amount of noncrack cocaine
would yield a range of 262 to 327 months.
Thomas insists that because the district court never
expressly stated which statutory maximum (life or 30
years) applied to his offense, the court misapplied the
career offender guideline. The main problem with
Thomas’s argument (aside from the fact that the court
plainly referred to offense level 37 in calculating the
career offender guideline) is that it assumes the district
court had the responsibility at sentencing to decide
12 No. 05-4222
whether the substance in question was crack cocaine
rather than noncrack cocaine. Because that determination
increases the statutory maximum penalty from 30 years
to life, the jury—not the court—must make it. Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000); Horton v. United
States, 244 F.3d 546, 552 (7th Cir. 2001). The jury in
Thomas’s case did so. The special verdicts for both the
possession and conspiracy counts specified that the
substance in question was crack and its quantity exceeded
5 grams, and Thomas does not challenge these findings as
a factual matter. Accordingly, the district court properly
determined that Thomas’s offense level was 37 under the
career offender guideline.3
E. Reasonableness
Thomas also claims his sentence, which lies at the very
bottom of his guidelines range, was unreasonable. On
appeal, sentences within the advisory guidelines range
are presumed reasonable, United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005), an appellate presumption that
has been approved by the Supreme Court, Rita v. United
States, 127 S. Ct. 2456 (2007). Thomas argues his sentence
is unreasonable because the district court failed to ade-
quately address his arguments for leniency and the sen-
tencing factors in 18 U.S.C. § 3553(a). It is a boiler-
plate argument, unaccompanied by any discussion of
3
Thomas also challenges the application of the leader/orga-
nizer enhancement, U.S.S.G. § 3B1.1. The application of this en-
hancement, however, did not ultimately affect the guide-
lines calculation; Thomas’s advisory guidelines range was
controlled by the career offender guideline.
No. 05-4222 13
particular mitigating factors the court supposedly over-
looked or inadequately addressed.
Although in the district court Thomas made a passing
reference to the harsh penalties for crack cocaine con-
victions, he did not—and does not now—specifically
advance an argument based on the 100:1 crack/powder
cocaine disparity in guidelines sentencing. The Supreme
Court recently held that this is an appropriate consider-
ation for district courts exercising post-Booker sen-
tencing discretion under § 3553(a), see Kimbrough v. United
States, 128 S. Ct. 558 (2007), but because Thomas did not
make the argument, we need not address it.
The lengthy sentencing transcript reveals that the district
court listened to detailed sentencing arguments from
counsel and took into account factors appropriate under
§ 3553(a), most significantly, Thomas’s extensive crim-
inal history and the fact that he appeared to be a full-time
drug dealer. Thomas has not overcome the presumption
of reasonableness.
AFFIRMED.
USCA-02-C-0072—3-24-08