United States v. Seymour, Andre ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3904, 05-3944, 05-3946, 05-3947, 05-4284, 06-2779
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE SEYMOUR, ARTREZ N. SEYMOUR,
KENT CLARK, ANDRE LAWRENCE,
STACIA SMITH AND TROY LAWRENCE,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 200—Wayne R. Andersen, Judge.
____________
ARGUED JANUARY 18, 2008—DECIDED MARCH 24, 2008
____________
Before BAUER, FLAUM, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Defendants-Appellants Andre
Seymour, Artrez Nyroby Seymour (“Nyroby Seymour”),
Kent Clark, Andre Lawrence, Stacia Smith, and Troy
Lawrence (collectively, the “Defendants”) appeal their
respective sentences, claiming that their Sixth Amend-
ment rights were violated when the district court sen-
tenced all Defendants under 21 U.S.C. § 841(b)(1)(A)
without having the jury make individualized findings
2 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
regarding the quantities of drugs reasonably foreseeable
to each defendant. Defendant Stacia Smith also asserts
that the district court erred by not suppressing a gun
found in Smith’s possession during a January 2002 traffic
stop, and that the district court abused its discretion
when it denied her motion for a mistrial on the gun-related
charge. In addition, Smith contends that there was insuffi-
cient evidence to support her conviction on the gun-related
charge. Defendant Andre Lawrence also appeals his
conviction on the gun-related charge, claiming the evi-
dence was insufficient to support his conviction. For the
following reasons, we affirm.
I. Background
All six Defendants were convicted, amongst numerous
other charges, for conspiring to knowingly and intention-
ally possess with intent to distribute fifty grams or more
of cocaine base, commonly known as “crack,” within one
thousand feet of an elementary school, in violation of
21 U.S.C. §§ 841(a)(1) and 860(a). Defendants Smith and
Andre Lawrence were also convicted of knowingly pos-
sessing a firearm in furtherance of drug trafficking, in
violation of 18 U.S.C. § 924(c).
A. Drug Trafficking Operations
From the early 1990s until March of 2002, the Defendants
were involved in a crack trafficking organization (“the
Organization”) in Chicago Heights, Illinois. The Organiza-
tion initially sold crack in an area known as Wentworth
Gardens. While at Wentworth Gardens, the Organization
sold crack twenty-four hours a day, seven days a week.
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 3
During the Wentworth Gardens era, defendants Troy
Lawrence, Kent Clark, Stacia Smith, and Nyroby Seymour
were among those working for the Organization.
In the late 1990s, the buildings around Wentworth
Gardens were condemned and torn down. The Organiza-
tion then moved to Claude Court, a different area in
Chicago Heights that was surrounded by public housing.
The Claude Court drug sales location was less than one
thousand feet from an elementary school. The Organization
was the only group selling crack in the Claude Court area.
During the Claude Court era, defendants Andre Lawrence
and Andre Seymour joined the Organization; Nyroby
Seymour, Troy Lawrence, Kent Clark, and Stacia Smith
remained members.
After the relocation, the basic structure of the Organiza-
tion remained the same: Troy Lawrence was the leader
and was responsible for buying the powder cocaine from
his suppliers. He stored the cocaine at one of the Organiza-
tion’s stash houses, which were the residences of Organiza-
tion members. The cocaine was cooked into crack at the
stash houses. Once the crack was prepared, other members
of the Organization, referred to as “baggers,” bagged the
crack into small plastic bags, then fifty of the little bags
were placed into a larger bag, called a “fifty pack.”
After the crack was packaged into fifty packs, a mem-
ber of the Organization referred to as a “runner” would
bring the crack to the sales area—either Wentworth
Gardens or Claude Court, depending on the time frame—
and deliver it to another member, called the “shift runner”
or “shift supervisor.” The runner would also pick up
drug sale proceeds from the shift supervisor. The shift
supervisors were the managers of the sales area. When
the area was running low on crack, the shift supervisors
4 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
would make calls to other members of the Organization to
have runners deliver more. After receiving the crack
from the runner, shift supervisors gave it to a member
of the Organization referred to as a “packman.” The
packman was responsible for the actual drug-money
exchange with the customer.
The Organization also had members that were assigned
to security to monitor the drug sales area, watching for
law enforcement or anyone looking to rob a member of
the Organization. Members on security assignment, as
well as other members of the Organization, often carried
guns for protection. Members of the Organization also
drove cars with hidden “trap compartments,” where they
could conceal guns and drugs.
B. Organization Drug Orders and Stash Houses
One of Troy Lawrence’s cocaine suppliers, Mark Connor,
testified that he sold powder and crack cocaine to Troy
Lawrence on and off from 1997 to March 2002. When Troy
was unavailable, Connor would call Andre Lawrence,
Troy’s cousin. At first, Connor sold powder cocaine to
Troy Lawrence once or twice a week in 4.5 ounce quanti-
ties, which Troy then cooked into crack. As time went
on, Troy bought larger quantities of cocaine, including
deals for half and full kilograms. Sometime in 1997, Connor
cooked up a half kilogram of cocaine for Troy Lawrence
after Troy questioned the quality of the cocaine Connor
was selling. From early 2000 to November of 2001, Connor
heard from Troy Lawrence once or twice a week for
a couple of weeks, but then would not hear from him for
a few months at a time. During November and Decem-
ber 2001, Troy bought cocaine from Connor more fre-
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 5
quently and in greater quantities, ranging from one to three
kilograms per transaction.
Troy stored the cocaine at the Organization’s stash
houses. Smith’s home in Lynwood, Illinois, a Chicago
apartment referred to as “the Hideout,” and Andre Law-
rence’s home in Chicago were Organization stash houses.
Troy and another of his cocaine suppliers, “JT,” frequently
discussed cocaine deals in Smith’s apartment, and both
Smith and Andre Lawrence knew that the Organization
was storing cocaine in their homes. Connor delivered
cocaine to Troy at a restaurant Troy owned, as well as
at the Hideout and Andre Lawrence’s house. Between 1999
and 2002 alone, Connor delivered cocaine to Andre Law-
rence’s house an estimated twenty times. On approxi-
mately ten occasions while inside Andre Lawrence’s house,
Connor saw members of the Organization, including
Andre Lawrence, bagging crack; on one occasion around
Christmas of 2001, Connor saw Andre Lawrence take a
gun out of the waistband of his pants and place it on a
television inside the house. Connor also delivered co-
caine to the Hideout on approximately five to ten occa-
sions.
Levert Griffin, a member of the Organization who
served as a runner at both Wentworth Gardens and
Claude Court, testified that the Organization used Smith
and Andre Lawrence’s residences to store and bag crack.
Griffin testified that he personally bagged crack with
Andre Lawrence and other individuals inside Andre
Lawrence’s house and that on one occasion at Andre
Lawrence’s house, he saw a black handgun in the bed-
room. Griffin also bagged crack at Smith’s apartment
with other individuals, including Andre Seymour, who
worked as a shift supervisor for the Organization. From
6 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
time to time and at Troy Lawrence’s direction, Griffin
purchased cocaine in approximately one kilogram quanti-
ties from suppliers JT and Connor. After purchasing
the cocaine, Griffin brought the drugs to Smith’s apart-
ment, where Griffin knew drugs and drug proceeds
were stored for the Organization.
In February of 2002, Troy Lawrence began paying
for Organization member Tasha Deere’s apartment in
Chicago Heights. Deere’s apartment was then used as a
stash house, and members of the Organization were
there bagging crack every day. Troy brought crack to
Deere’s house, and at least five members of the Organ-
ization bagged it, including Andre Seymour and Troy.
Deere’s apartment was also used to stash drug proceeds,
which Troy would pick up every two to three days.
C. Investigation of the Organization
Federal law enforcement began investigating the Organi-
zation’s drug trafficking operations in July of 2000. Fed-
eral agents received court authorization to place wire taps
on Griffin’s and Troy Lawrence’s telephones and to
intercept text messages sent to pagers that belonged to
Troy Lawrence and another Organization member
named Cameron Wilson.
On various occasions, both the Chicago Heights Police
and federal law enforcement agents seized drugs, drug
proceeds and firearms from members of the Organization.
For example, on July 5, 2000, the Chicago Heights Police
officers seized forty-four small plastic bags containing
crack dumped by Nyroby Seymour as he ran from police;
after the chase, Nyroby was arrested (for the second time)
for selling crack. Three days later, the Chicago Heights
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 7
Police seized over $16,000 in cash from Troy Lawrence
and his vehicle.
In October of 2000, law enforcement stopped Smith
while she was driving her car near the Claude Court drug
sales location. The officers had seen Smith take a white
plastic grocery bag from a man in the drug sales area
and drive away. While she drove away the officers no-
ticed an unrestrained child in the front seat and decided
to stop her. The officers asked Smith (who was pregnant
at the time) if she had any drugs or weapons in the car,
to which she replied that she did not. The officers then
asked for permission to search her purse and car, and
Smith agreed.
While searching Smith’s purse, the officers found a
white plastic bag, which contained cash and slips of
paper with names or aliases written on them. The officers
seized the contents of the plastic bag, gave Smith a re-
ceipt for the items, and allowed Smith to leave. The
evidence obtained from this traffic stop was later sup-
pressed by the district court.
On December 26, 2001, runner Griffin was stopped by
Chicago Heights Police officers and was found to have
a gun and 10.9 grams of crack in a trap compartment of
his car. On January 7, 2002, Kent Clark was stopped in
Glenwood, Illinois, and officers found $7,539 wrapped in
a rubber band inside a plastic bag, which he was trans-
porting on behalf of Troy Lawrence and the Organization.
On January 24, 2002, officers searched Organization
member Tasha Deere’s vehicle and found 227 grams of
crack in a trap compartment. That same day, officers
stopped Smith in her car after intercepting a phone call
from Troy Lawrence placed at 11:23 p.m. During that call,
8 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
Troy Lawrence had instructed Smith to: “[G]et up. Put
something on. Bring me that black box that’s in your
closet.” Smith responded, “In my closet?” Troy Lawrence
then said: “The black box. You know my know my thing
in there. You hear me?” Smith replied, “Yeah, yeah,
yeah, yeah.” Troy Lawrence then told her a second time
to “[h]urry up.” Moments later, officers stopped Stacia
Smith and found a black box on the passenger seat with
the words “Intra Tec” written on the outside of the box.
Inside the box, officers found a loaded Intra Tec Model
AB10 semi-automatic handgun.
On January 27, 2002, officers stopped Organization
member Cameron Wilson, searched his vehicle and
seized 211 grams of crack. On February 5, 2002, officers
chased a vehicle driven by Organization supplier JT.
During the chase, JT dumped approximately 4.4 kilo-
grams of powder cocaine out of the window.
On March 5, 2002, officers searched Troy Lawrence’s
home in Hammond, Indiana. They found approximately
$171,980 in cash, a money counter, two firearms, a flash
suppressor, and firearm ammunition. That same day,
officers searched three Organization stash houses. At
the Hideout, officers found 496.4 grams of powder co-
caine and various drug paraphernalia, including bags
and seals. At Andre Lawrence’s house, they found $5,535
in cash, two loaded guns (a Berretta and a Salvage),
ammunition, a bullet proof vest, plastic bags, seals, and a
safe containing another $4,000. The Salvage was found
in the front room of the house, while the Berretta was
found in the bedroom together with Andre Lawrence’s
wallet, bullet proof vest, ammunition for both guns,
and the safe. At Tasha Deere’s apartment, officers found
297.8 grams of cocaine base.
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 9
In addition to these seizures, law enforcement agents
working in an undercover capacity between April and
June of 2001 made seven controlled purchases of crack
totaling 172.2 grams at the Organization’s Claude Court
drug sales area.
On July 16, 2002, the Defendants were indicted for
conspiring to distribute and for possession with intent
to distribute crack within one thousand feet of an elemen-
tary school (amongst other charges), and a jury trial
ensued.
D. Trial Testimony
In addition to the law enforcement arrests, seizures,
and undercover purchases of crack from members of the
Organization, several witnesses at trial testified as to the
amount of crack produced and sold by the Organization.
As noted above, Organization drug supplier Connor
testified as to his sales with the Organization. Runner
Griffin also testified as to the Organization’s operations.
Griffin estimated that he delivered $4,000 to $10,000
worth of crack in a single eight-hour shift, which
amounted to between 400 and 1000 bags of crack.
Green Sallis, a shift supervisor for the Organization at
Wentworth Gardens and Claude Court, testified that in
early 2002, he went to Tasha Deere’s apartment, where
Andre Lawrence (at Troy Lawrence’s direction) gave him
a softball-sized or football-sized piece of crack to be
bagged. He also testified that Stacia Smith dropped off
drugs or picked up money from him at Claude Court
approximately twenty to thirty times.
Darren Stewart, a member of the Organization since
1996 and a packman from 1997 to 1999, testified that as
10 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
a packman, he worked at Wentworth Gardens seven
days a week, eight hours a day selling crack to customers.
Kent Clark, a shift runner, supplied Stewart with the
crack he sold. Stewart estimated that the Organization
sold $20,000 worth of crack cocaine each day.
E. The Defendants’ Roles in the Organization
Troy Lawrence was the leader of the Organization from
its inception in the early 1990s until his arrest in 2002. Troy
did most of the cocaine purchasing from the Organiza-
tion’s suppliers, including several deals for kilogram
quantities of cocaine. He also handled all of the drug
proceeds of the Organization’s drug sales. Troy was
aware of all the stash houses’ operations and directed
members of the Organization regarding operations for
every shift. He held meetings to discuss the operations
with everyone working in the drug sales areas, and made
decisions regarding who was disciplined and how. Troy
also determined what each member of the Organization
was paid on a weekly basis and whether they would
move up in the Organization.
Kent Clark worked for the Organization from 1996
until his arrest in January of 2002. Clark worked as a
shift supervisor at Wentworth Gardens. When the Organi-
zation operated at Claude Court, Clark collected drug
proceeds and transported money for the Organization.
Andre Seymour worked as a shift supervisor for the
Organization for approximately two years at the Claude
Court drug sales location. During his tenure, he received
drugs and handled drug proceeds, bagged crack at the
stash houses, participated in Organizational beatings to
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 11
enforce discipline, attended Organization meetings, and
obtained a gun for the Organization.
Nyroby Seymour began working for the Organization
in 1998 and continued until at least 2001. At Wentworth
Gardens and Claude Court, Nyroby worked as a pack-
man and as security.
Smith, Troy Lawrence’s girlfriend, worked for the
Organization for an uncertain but undoubtedly long
period of time. She worked for the Organization at both
Wentworth Gardens and Claude Court as a runner and
operated a stash house. Smith’s home was used to conduct
drug deals for wholesale quantities of cocaine, as well as
to store those drugs and drug proceeds. Members of the
Organization frequently bagged crack at Smith’s house
with several other members. According to Sallis, Smith
delivered drugs or picked up money approximately one
hundred times at Wentworth Gardens and approximately
twenty to thirty times at Claude Court. Stewart also
testified that Smith delivered drugs twice a week at
Wentworth Gardens. Law enforcement intercepted a
call from Troy Lawrence to Smith in which he told her
to get $4,000 worth of crack, or roughly one hundred
grams, to another member.
Andre Lawrence worked for the Organization from at
least 1999 to 2002. He transported crack, received co-
caine deliveries from Organization supplier Connor, and
bagged crack. Most significantly, Andre Lawrence oper-
ated a stash house for the Organization out of his home.
Sallis testified that Andre Lawrence was present at his
home on numerous occasions when others cooked up and
bagged crack there. On one occasion, Andre Lawrence
gave Sallis a softball or football-sized piece of crack to
be bagged. During the investigation, law enforcement
12 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
intercepted several phone calls between members of the
Organization, including a call between Sallis and Troy
Lawrence in which Sallis was trying to pick up a “big
mac,” or approximately 500 grams of crack from Andre
Lawrence’s house.
F. The Verdict and Sentencing Hearings
On December 18, 2003, all six Defendants were con-
victed of conspiring to distribute and to possess with
intent to distribute a controlled substance—cocaine and
cocaine base—within one thousand feet of an elementary
school, in violation of 21 U.S.C. §§ 841(a)(1), 860(a), and
846. In finding the Defendants guilty, the jury filled out
a verdict form that asked them to make a general deter-
mination as to whether a conspiracy to distribute or
possess a certain amount of cocaine base had been proven
beyond a reasonable doubt. The verdict form did not
ask the jury to determine the amount of cocaine base
attributable to or reasonably foreseeable by any particular
Defendant. The jury determined that the government
had proved beyond a reasonable doubt that the con-
spiracy involved more than fifty grams of cocaine base. The
jury also found Smith and Andre Lawrence guilty of
possessing a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c).
Amongst other post-trial motions, defendants Andre
Seymour, Kent Clark, Andre Lawrence, and Nyroby
Seymour requested that the district court sentence them
under § 841(b)(1)(C), which governs distribution of less
than five grams of cocaine base, instead of § 841(b)(1)(A),
which governs distribution of more than fifty grams of
cocaine base. The district court denied these and other
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 13
post-trial motions, and all six Defendants were sen-
tenced under § 841(b)(1)(A).
At each of the Defendants’ respective sentencing hear-
ings, the district court noted that the jury finding that
the conspiracy involved more than fifty grams of cocaine
base carried a maximum statutory sentence of life im-
prisonment. The district court determined that, consistent
with the jury’s quantity finding, the conspiracy in-
volved more than 1.5 kilograms of cocaine base, and
therefore all six Defendants had base offense levels
of thirty-eight, before accounting for any enhancements,
for sentencing purposes. Dependent upon a defendant’s
criminal history score, a base offense level of thirty-eight
yields an advisory sentence under the Sentencing Guide-
lines ranging from 235 months to life imprisonment.
For the conspiracy conviction alone, the Defendants
were sentenced as follows: (1) Troy Lawrence to life
imprisonment;1 (2) Andre Seymour to 324 months’ impris-
onment; (3) Nyroby Seymour to 300 months’ imprison-
ment; (4) Kent Clark to 300 months’ imprisonment;
(5) Andre Lawrence to 300 months’ imprisonment; and
(6) Stacia Smith to 133 months’ imprisonment. For the gun-
related charges, Smith and Andre Lawrence were sen-
tenced to ten years and five years, respectively, to run
consecutive to the other counts.
1
Because the jury had found Troy Lawrence guilty of eleven
other charges in the indictment, and based on his having three
prior felony drug convictions, the district court had no dis-
cretion with respect to Troy’s sentence, and imposed the
mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).
14 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
II. Discussion
All six Defendants argue that the district court commit-
ted an Apprendi violation when it failed to have the jury
make defendant-specific drug quantity findings. Alterna-
tively, Defendants contend that, even if a judge can make
the defendant-specific quantity determination, the dis-
trict court failed to do so. Defendants Smith and Andre
Lawrence also seek to overturn their firearm convictions.
We address each issue in turn.
A. Alleged Apprendi Error
Apprendi requires that a jury make “the assessment of
facts that increase the prescribed range of penalties to
which a criminal defendant is exposed.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). The Defendants claim that
the Supreme Court’s recent decision in Cunningham v.
California, 127 S. Ct. 856 (2007), expanded the language of
Apprendi and established that “any fact that exposes a
defendant to a greater potential sentence must be found
by a jury, not a judge, and established beyond a reason-
able doubt.” 127 S. Ct. at 863-64. Thus, the Defendants
contend that their Sixth Amendment rights were vio-
lated when the district court judge, and not the jury,
determined that 1.5 kilograms of crack were attributable
to each defendant.
An Apprendi issue is subject to de novo review. United
States v. Chemetco, Inc., 274 F.3d 1154, 1158 (7th Cir. 2001).
As Defendants correctly stated, Apprendi held that a
jury must find beyond a reasonable doubt “any fact [other
than a prior conviction] that increases the penalty for a
crime beyond the prescribed statutory maximum.” 530 U.S.
at 490. The Supreme Court defined the phrase “statutory
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 15
maximum” as set out in Apprendi as the maximum sentence
a judge can impose without additional jury findings.
Blakely v. Washington, 542 U.S. 296, 303-304 (2004).
Defendants are mistaken in their claim that the district
court judge’s finding that each defendant was responsible
for 1.5 kilograms of crack in any way “increased” their
potential maximum sentences. Any person who know-
ingly and intentionally distributes, or possesses with the
intent to distribute fifty grams or more of a mixture or
substance containing cocaine base has violated 21 U.S.C.
§ 841(a) and shall be sentenced under 21 U.S.C.
§ 841(b)(1)(A). See 21 U.S.C. § 841(b)(1)(A)(iii). The statu-
tory maximum for a sentence pursuant to § 841(b)(1)(A)
is life imprisonment. Because the jury found the Defen-
dants guilty of a conspiracy involving fifty grams or more
of cocaine base, the drug quantity determination for the
conspiracy was determined beyond a reasonable doubt by
the jury, as required. See United States v. Flagg, 481 F.3d
946, 949-50 (7th Cir. 2007) (“[D]rug type and amount
sufficient to trigger the higher statutory maximum of
§§ 841(b)(1)(A) or (B) [must] be charged in the indictment
and found by the jury beyond a reasonable doubt or
admitted by the defendant.”) (internal quotations omitted).
The district court’s determination that each defendant
was responsible for 1.5 kilograms or more of crack in-
volved in the conspiracy placed the Defendants into the
base offense level of thirty-eight, which has a maximum
sentence of life imprisonment. The district court judge’s
determinations regarding the drug quantity attributable
to each defendant did not increase the penalty for the
crime beyond the statutory maximum, as determined by
the jury, of life imprisonment; thus, no additional facts
were found that affected the Defendants’ potential maxi-
16 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
mum sentences. There was no Apprendi error and Defen-
dants’ reliance on Cunningham is misplaced. See United
States v. Martinez, Nos. 06-2021, 06-2041, ___ F.3d ___, 2008
WL 553557, at *3 (7th Cir. Mar. 3, 2008) (finding drug
conspiracy defendants’ reliance on Cunningham regarding
judicial fact-finding in applying the Guidelines misplaced
now that the Guidelines are merely advisory).
Furthermore, a jury need not make a defendant-specific
drug quantity determination for a conspiracy charge.
United States v. Tolliver, 454 F.3d 660, 669 (7th Cir. 2006);
United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003).
Once a jury has determined that a conspiracy involved a
type and quantity of drugs, and has found a particular
defendant guilty of participating in the conspiracy, the
jury has established the statutory maximum sentence
that any one participant in the conspiracy may receive. See
Knight, 342 F.3d at 710. Once the drug quantity and type
for the conspiracy as a whole are determined by the jury,
the judge may lawfully determine the drug quantity
attributable to each defendant and sentence him accord-
ingly so long as that determination does not exceed the
statutory maximum sentence determined by the jury. Id.;
see also United States v. Hollins, 498 F.3d 622, 629 (7th Cir.
2007) (post-Cunningham decision reviewing a district
court’s findings of fact regarding drug quantity for
clear error). “The rule, then, is that the government need
only allege and prove to the jury the bare facts necessary
to increase the statutory sentencing maximum for the
conspiracy as a whole.” Id.; see Edwards v. United States,
523 U.S. 511, 513-14 (1998).
All that remains of Defendants’ argument is whether the
district court judge erred in attributing 1.5 kilograms of
crack to each defendant. We review the district court’s
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 17
findings as to drug quantity for clear error. Hollins, 498
F.3d at 629; United States v. Wilson, 481 F.3d 475, 483 (7th
Cir. 2007). For sentencing purposes, a criminal defendant
convicted of a drug trafficking conspiracy is liable for
the reasonably foreseeable quantity of drugs sold by his
or her co-conspirators. See Wilson, 481 F.3d at 483; United
States v. Olson, 450 F.3d 655, 685 (7th Cir. 2006). Reasonable
foreseeability is a factual determination and is reviewed
for clear error. Olson, 450 F.3d at 685. The government’s
burden in attributing drug quantities to a particular
defendant does not require that it show that the defend-
ant was involved in or even had direct knowledge of any
particular transaction. Hollins, 498 F.3d at 630.
“[R]easonable foreseeability refers to the scope of the
agreement that [a defendant] entered into when he joined
the conspiracy, not merely to the drugs he may have
known about.” Id. (quoting United States v. Flores, 5 F.3d
1070, 1083 (7th Cir. 1993)); see also Martinez, ___ F.3d ___,
2008 WL 553557 at *4 (“ ’Reasonable foreseeability’ is thus a
qualification to holding one conspirator accountable for
the conduct of others.”). “[A]lthough evidence of drug
quantity must be more than speculative . . . the sentenc-
ing guidelines permit some amount of reasoned ‘specula-
tion and reasonable estimation’ by a sentencing court.” Id.
at 631 (quoting United States v. Jarrett, 133 F.3d 519, 530
(7th Cir. 1998) (citing U.S.S.G. § 2D1.1)) (emphasis in
original).
The district court was presented with substantial evi-
dence that at least 1.5 kilograms of crack were sold and
foreseeable during the various Defendants’ involvement
with the Organization. First, the Organization ran a large-
scale crack distribution from the early 1990s until 2002,
selling crack to customers twenty-four hours a day,
18 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
seven days a week, and employing approximately ten to
fifteen people. Testimony from Organization members
Stewart and Griffin also demonstrated that 1.5 kilograms
of crack was hardly the tip of the iceberg for the Organ-
ization. Stewart testified that the Organization sold ap-
proximately $20,000 worth of crack a day, and that the
Organization made approximately $1,000 per ounce of
crack. Based on Stewart’s estimates, the Organization
sold 1.5 kilograms of crack in less than three days of work.
Similarly, Griffin testified that he delivered crack to
shift supervisors two to four times a day, delivering
$4,000 to $10,000 worth of crack. Using the most conserva-
tive measure of Griffin’s estimate, he alone delivered 1.5
kilograms of crack in less than fourteen days of work.
Moreover, the government seized a substantial amount
of crack from the Organization. In a single three-day
period, law enforcement seized 227 grams of crack from
Tasha Deere and 211 grams from Cameron Wilson. Under-
cover purchases also yielded 172.2 grams of crack.
As the government points out, these quantities and
calculations are just snapshots of the Organization’s
massive drug trafficking operation. They also demon-
strate that an individual need not be involved in the
Organization for more than a couple of weeks to be a part
of 1.5 kilograms of crack sales. Based on the Defendants’
critical roles and long tenures with the Organization, each
defendant could reasonably foresee the involvement of
1.5 kilograms of crack in the Organization’s drug traffick-
ing operations.2
2
Defendants also contend that allowing the judge to make an
individualized quantity determination based on reasonable
(continued...)
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 19
We briefly address the Defendants’ individual involve-
ment in the conspiracy in turn to determine if the district
court clearly erred in attributing 1.5 kilograms of crack to
each defendant. We need not trouble ourselves with Troy
Lawrence’s sentence; the jury found Troy Lawrence
guilty beyond a reasonable doubt of possession with the
intent to distribute fifty grams or more of cocaine base on
two other charges of the indictment. Troy’s argument
that the district court improperly found 1.5 kilograms
attributable to him individually is irrelevant, because the
jury had already made a specific quantity finding as to
him. Troy Lawrence’s Apprendi argument has no merit.
Kent Clark and Andre Seymour were shift supervisors
for the Organization for approximately eight years and
two years, respectively. As testimony at trial explained,
shift supervisors were aware of the amount of crack going
into the sales area to each packman from the runners. Both
took on additional roles in the Organization as well. Clark
collected and transported drug proceeds, and Andre
Seymour bagged crack for the Organization at the stash
houses. The evidence amply supported the district court’s
determination that 1.5 kilograms were attributable to
both Clark and Andre Seymour.
Packman Nyroby Seymour also worked for the Organiza-
tion for approximately three years. As a packman, Nyroby
was at the sales location and had first-hand knowledge
2
(...continued)
foreseeability creates possible sentencing ranges of “zero to life”
in cases involving large conspiracies, such as this case, but very
minor participants. As discussed herein, none of the Defend-
ants even come close to qualifying as “minor participants,”
therefore we need not address these concerns.
20 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
of the amount of crack being sold. Based on his tenure
and role in the Organization, 1.5 kilograms of crack were
also reasonably foreseeable to Nyroby Seymour.
Both Stacia Smith and Andre Lawrence operated stash
houses out of their homes for several years. Organization
member Sallis’s testimony indicated that Smith delivered
crack to the drug sales areas on approximately 120 occa-
sions. In addition to running a stash house, Andre Law-
rence received cocaine deliveries for Troy Lawrence and
participated in bagging the crack at the stash houses. Law
enforcement intercepted a phone call in which Sallis
was trying to pick up a “big mac,” or 500 grams of crack,
from Andre Lawrence’s house. Again, based on the
conservative calculations supported by the evidence and
testimony at trial discussed above, 1.5 kilograms of crack
were certainly foreseeable to both Smith and Andre
Lawrence.
There was overwhelming evidence at trial that demon-
strated the day-to-day involvement over extended periods
of time of the Defendants, such that each of them
could easily foresee that the conspiracy involved 1.5
or more kilograms of cocaine base. See Knight, 342 F.3d
at 712; United States v. Patterson, 241 F.3d 912, 914 (7th
Cir. 2001) (per curiam). Accordingly, we find no error in
the district court’s sentencing determinations.
We acknowledge that the district court did not explicitly
determine that 1.5 kilograms of crack were reasonably
foreseeable to the individual defendants. Instead, the
district court began the sentencing hearings by con-
cluding that the conspiracy undoubtedly involved at
least 1.5 kilograms of crack, and that this was just a frac-
tion of what was actually involved. But even if there
was error in not attributing a defendant-specific finding
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 21
on the charges in this case, it would have been harmless
given the evidence presented at trial and discussed
throughout this opinion. See Knight, 342 F.3d at 712 (hold-
ing that a failure to make defendant-specific drug
quantity findings was harmless error, given that the full
weight of the drugs involved in the conspiracy was easily
attributable to each defendant, the large scale of the drug
trafficking organization, the defendants’ roles in the
organization, and the evidence of drug quantity estab-
lished at trial) (citing Neder v. United States, 527 U.S. 1, 10-11
(1999)). Where a defendant’s drug quantity is not sub-
mitted to the jury, for purposes of determining whether
the error was harmless, we focus on the amount of drugs
possessed by the conspiracy. Id. at 711. We do this because
each of the defendants was convicted of conspiring
with the others to distribute drugs, and as a member of
the conspiracy, each defendant is accountable for the
acts of all other conspirators within the scope of that
agreement. Id.
B. Stacia Smith’s Firearm Conviction
Smith first asserts that the gun obtained during the
January 2002 traffic stop should have been suppressed
because the police lacked probable cause to conduct the
search. Smith rests her argument on the district court’s
exclusion of the evidence obtained from the October 2000
stop, which Smith contends provided the only rea-
sonable basis for law enforcement to suspect her involve-
ment in the Organization’s drug trafficking operations.
Absent the October 2000 stop, Smith argues, the police
lacked probable cause to make the January 2002 stop
because Troy Lawrence’s instruction to bring the “black
box” to grandma’s house could not give rise to any belief
22 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
that the black box was (or contained) contraband. Smith
asserts that Troy Lawrence’s instructions would have
reasonably been perceived to be merely a “domestic
favor.” Smith also moved for a mistrial on the firearm
charge on the basis that the gun should have been sup-
pressed.
On appeal of a denial of a motion to suppress, this
Court reviews a district court’s legal conclusions de novo
and findings of fact for clear error. United States v.
Dowthard, 500 F.3d 567, 568-69 (7th Cir. 2007); United States
v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006). “[A] vehicle
may be stopped and searched without a warrant if there
is probable cause to believe the vehicle contains contra-
band or other evidence of illegal activity.” United States v.
Navarro, 90 F.3d 1245, 1252 (7th Cir. 1996). Probable cause
exists where “under the totality of the circumstances, it
is fairly probable that the car contains contraband or
evidence.” United States v. Webb, 83 F.3d 913, 916
(7th Cir. 1996). Evidence obtained in violation of an
individual’s Constitutional rights cannot be used against
the individual. See United States v. Fields, 371 F.3d 910,
914 (7th Cir. 2004).
Smith fails to consider the totality of the circumstances
surrounding the January 2002 stop. Although the district
court mentioned the fact that Smith had been stopped
in October of 2000 and was found to possess drug pro-
ceeds from the Organization’s operations, it did not rely
on this evidence in its probable cause determination in
a way that would taint the January 2002 stop. Law en-
forcement had obtained a warrant to intercept phone
calls from Troy Lawrence’s phone and had intercepted
numerous calls to Smith, including two calls from Troy
Lawrence instructing her to bring drugs to Organization
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 23
member Green Sallis. Throughout the phone taps, the
conversations repeatedly used codes to communicate
drug amounts, locations, and members’ names. Based on
these phone calls, police reasonably believed Smith to be
a drug associate of Troy Lawrence and reasonably be-
lieved that “the black box” and “my thing” were code for
contraband or illegal activity, and not merely a “domestic
favor.”
Furthermore, the law enforcement agent that stopped
Smith that night testified that Smith was speeding. The
gun was in plain view on the passenger seat of the car in
the gun manufacturer’s black case with name “Intra Tec”
on the exterior of the box. Therefore, even if the police
did not have probable cause based on the intercepted
phone calls, the gun was properly admitted because the
police had probable cause to make a traffic stop and the
gun case in plain view would still be properly seized.
Dowthard, 500 F.3d at 569 (“An officer has probable cause
for a traffic stop when she has an ‘objectively reasonable’
basis to believe a traffic law has been violated.”); United
States v. Raney, 342 F.3d 551, 558-59 (7th Cir. 2003) (finding
that if an officer is lawfully present, sees an object in
plain view, and the incriminating nature of the object is
readily apparent, an object can properly be seized pursu-
ant to the plain view doctrine). There is no dispute that
speeding is a violation of Illinois law, and there is no
argument made that a reasonable officer would not have
thought that Smith was not actually speeding. Accord-
ingly, the gun was properly seized and admitted into
evidence.3
3
For the first time at oral argument, the parties suggested that
the threshold for the January 2002 traffic stop was reasonable
(continued...)
24 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
Because the district court properly denied Smith’s motion
to suppress the gun, the district court did not abuse its
discretion in subsequently denying Smith’s motion for a
mistrial regarding the gun charge. See United States v.
Mannie, 509 F.3d 851, 856 (7th Cir. 2007) (a district court’s
refusal to grant a mistrial is reviewed for abuse of discre-
tion); United States v. Miller, 276 F.3d 370, 373 (7th Cir.
2002) (same).
Having decided that the gun was properly admitted
into evidence, we turn to Smith’s assertion that there
was insufficient evidence from which a rational trier of
fact could determine, beyond a reasonable doubt, that
she was guilty of possessing a gun in furtherance of the
drug conspiracy. Specifically, Smith argues that the only
evidence offered by the government to convict Smith of
the gun-related charge was the recorded conversation
between Smith and Troy Lawrence right before the law
enforcement stopped her car and seized the gun. This
evidence, Smith argues, does not demonstrate that Smith
knowingly possessed the gun in furtherance of the drug
conspiracy, as charged in the indictment.
The standard of review facing a defendant on her claim
that the jury had insufficient evidence to convict is “a
daunting one.” United States v. Hicks, 368 F.3d 801, 804
3
(...continued)
suspicion, and not probable cause. Because we find that the
January 2002 traffic stop was supported by probable cause
established without consideration of the October 2000 traffic
stop, we need not address whether the search and seizure
was justified by reasonable suspicion. See United States v. Scott,
No. 07-1914, ___ F.3d ___, 2008 WL 426390, at *3 (7th Cir. Feb. 19,
2008).
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 25
(7th Cir. 2004). This Court’s inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Id. at 804. This Court will not overturn a convic-
tion based on insufficient evidence unless the record is
devoid of evidence from which a reasonable jury could
find guilt beyond a reasonable doubt. United States v.
Curtis, 324 F.3d 501, 505 (7th Cir. 2003).
A reasonable jury could find that Smith knew she was
transporting the gun, and based on the circumstances
of Troy Lawrence’s request for the gun, that it was to be
used in the furtherance of the drug conspiracy. When Troy
Lawrence requested the “black box” in her closet that
contained his “thing,” and then said to Smith, “You know
my know my thing in there,” Smith responded, “Yeah,
yeah, yeah, yeah.” This response could reasonably be
interpreted by the jury as evidence that she knew
exactly what Troy Lawrence was asking for that night.
Even if Smith did not know what was inside the case,
the case itself would have told her. Smith transported
the gun in its black case, which had the name of the gun
manufacturer, Intra Tec, written clearly on the outside of it.
The evidence also supports the jury’s finding that
Smith possessed the gun “in furtherance” of the drug
conspiracy. Evidence must specifically tie the weapon to
the drug trafficking activity. United States v. Duran, 407 F.3d
828, 840 (7th Cir. 2005). Factors that can be useful in
distinguishing between mere possession of a firearm and
possession in furtherance of a drug conspiracy include:
(1) the type of drug activity that is being conducted;
(2) accessibility of the firearm; (3) the type of weapon
possessed; (4) whether the weapon is stolen; (5) the
26 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
status of the possession (legitimate or illegal); (6) whether
the gun is loaded; (7) proximity to drugs or drug profits;
and (8) the time and circumstances under which the gun
is found. Id. at 840. “One legal theory that has
been advanced and unanimously accepted, is that a
possessed gun can forward a drug-trafficking offense by
providing the dealer, his stash, or his territory with
protection.” Id.
Applying these factors to this case, the jury reasonably
could have found that the weapon was possessed “in
furtherance” of the drug trafficking operation. Smith was
a key player in the Organization’s operations that traf-
ficked huge amounts of crack for almost a decade. Smith’s
home was a stash house for the Organization, and Smith
possessed the gun in the closet of her home prior to
transporting it to Troy Lawrence, the Organization leader,
and at his direction. The gun was loaded and easily
accessible to Smith inside her car when it was seized.
Moreover, Troy Lawrence called Smith and requested
the gun after eleven o’clock at night. Troy also made it
clear that he was in a hurry to get the gun. Finally, an
intercepted call between Troy and an individual
named Dante Lawrence just before midnight that night
showed that the gun was being brought to Troy in Chicago
Heights—the center of the Organization’s drug trafficking
operations. Therefore, a reasonable jury could have found
that Smith possessed the gun in furtherance of the drug
conspiracy.
C. Andre Lawrence’s Firearm Conviction
Andre Lawrence also argues that there was insufficient
evidence from which a rational trier of fact could deter-
Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al. 27
mine, beyond a reasonable doubt, that he was guilty of
possessing a gun in furtherance of the drug conspiracy.4
We disagree.
Revisiting the factors enumerated above, the jury’s
determination that Andre Lawrence possessed the guns
in furtherance of drug trafficking is amply supported. Two
guns were recovered from inside Andre Lawrence’s
house, which was used as a stash house for the Organiza-
tion. The Berretta handgun was accessible, kept under-
neath the mattress of a bed. The Berretta was loaded and
in the same room as a safe holding $4,000 in cash. The
Salvage handgun was also loaded and accessible, con-
cealed inside a couch in the front room of the house.
Moreover, the testimony elicited at trial supports the
jury’s finding that Andre Lawrence possessed the gun in
furtherance of the drug conspiracy. Connor, one of the
Organization’s cocaine suppliers, testified that he saw
Andre Lawrence with a gun in his waistband when he
was at Andre Lawrence’s house around Christmas of
2001. Connor said that Andre Lawrence removed the
gun from his waistband and set the gun on the television
while Connor and other Organization members were at
his home bagging crack. Griffin, a runner for the Organ-
ization, also testified that he saw a handgun in Andre
Lawrence’s bedroom when he was bagging crack at Andre
Lawrence’s home. These two instances in which Andre
Lawrence displayed a gun at an Organization stash house
could reasonably be interpreted by the jury to be a mes-
sage of protection of the drug conspiracy territory and
4
Andre Lawrence does not challenge the knowledge element
of his § 924(c) conviction.
28 Nos. 05-3904, 05-3944, 05-3946, 05-3947, et al.
its members. See Duran, 407 F.3d at 840-41 (rejecting
sufficiency of the evidence challenge where gun was held
in the conspiracy’s headquarters for protection); see also
United States v. Castillo, 406 F.3d 806, 814-18 (7th Cir. 2005).
Accordingly, the evidence was sufficient to convict
Andre Lawrence of possession of a firearm in furtherance
of the drug conspiracy.
III. Conclusion
For the foregoing reasons, we affirm all six Defendants’
sentences, as well as the district court’s denial of Smith’s
motion to suppress and motion for mistrial. We also
affirm the firearm convictions of Smith and Andre Law-
rence.
USCA-02-C-0072—3-24-08