United States v. Gilmer, Anthony ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3201 and 06-3250
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY GILMER and JAMAR BAILEY,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 8—Milton I. Shadur, Judge.
____________
ARGUED MAY 7, 2008—DECIDED JULY 18, 2008
____________
Before BAUER, POSNER and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Anthony Gilmer and Jamar Bailey
were indicted on two counts of conspiracy and drug
possession charges in March 2005. Following a bench
trial, the district court found Gilmer and Bailey guilty
and sentenced them to 57 months’ and 100 months’ impris-
onment respectively. On appeal, both raise several chal-
lenges to their convictions. For the following reasons,
we affirm.
2 Nos. 06-3201 and 06-3250
I. BACKGROUND
In December of 2004, a confidential informant reached
out to Untavious Davenport to see if he had a kilogram
of heroin to sell. On December 21, an undercover DEA
agent met with Davenport and the informant to negoti-
ate the sale. Davenport agreed to sell the undercover
agent the kilo for $102,000; a week later, Davenport asked
his friend Cleon Wilson about obtaining a kilo of heroin.
Wilson located a supplier named Jamar Bailey—a friend of
Wilson’s—and informed Davenport of the connection.
On January 3, 2005, while DEA agents conducted sur-
veillance, the informant picked up Davenport in a black
Escalade and drove to a parking lot of Cermak Mall in
Chicago, where they were joined by the undercover
agent to wait for the drugs. After Davenport spoke with
Wilson on the telephone, he and the informant drove to
Wilson’s house to check on the status of the heroin. Bailey
arrived a short time later, and Wilson introduced Daven-
port to Bailey. Bailey told Wilson he would get the kilo
of heroin from “out west” and left the house.
Wilson, Davenport, and the informant left Wilson’s
house around 5:00 p.m. Later, Bailey called Wilson and
told him that he had the kilo of heroin and that Wilson
should meet him to consummate the deal. They agreed to
meet at a laundromat parking lot at Cermak and Cicero
Avenues. The Escalade parked across the street from the
laundromat in an Aldi’s parking lot.
Meanwhile, Bailey had called Gilmer looking for a
kilogram of heroin, and Gilmer told Bailey that he
would broker the deal. Gilmer approached Romeal Wil-
liams, an acquaintance who had supplied heroin to
Gilmer in the past, to see if he could supply one quarter
Nos. 06-3201 and 06-3250 3
to one half kilogram of heroin. Williams called his source,
but only asked for 100 grams because he did not trust
Gilmer. Williams obtained (what he thought was) 100
grams of heroin and called Gilmer. Gilmer told Williams
to meet at the street corner of Jackson and Kostner;
when Williams arrived, Gilmer and Bailey were waiting.
As the three rode around in Williams’ white Chevrolet
Lumina, Williams showed the drugs to Gilmer. When
the two vehicles arrived at Aldi’s, Gilmer told Bailey to
tell the occupants in the Escalade to meet them at a near-
by Citgo station. Bailey got out of the Lumina and into
the Escalade, with Wilson, Davenport, and the informant,
and he relayed the information to rendezvous at the Citgo.
Once both vehicles arrived at the Citgo, the informant
walked over to the Lumina and got inside. Williams
handed him the heroin, but the informant noticed the
package was not a kilogram as requested. He asked
Williams whether it was a sample and handed the heroin
back to Williams. At that time, DEA agents approached
the Lumina and identified themselves. Davenport,
Wilson and Bailey were immediately arrested; Gilmer
and Williams ran but were promptly apprehended by the
agents. At the time of his arrest, Williams possessed one
bag containing two smaller bags of heroin and cocaine
base.
Bailey, Gilmer, Williams, Davenport, and Wilson were
each indicted on one count of conspiracy to possess
with intent to distribute at least 100 grams of mixtures
containing heroin, in violation of 21 U.S.C. § 846, and
one count of possession with intent to distribute approxi-
mately 83 grams of mixtures containing heroin and
13.3 grams of mixtures containing cocaine base, in viola-
tion of 21 U.S.C. § 841 (a)(1). Williams, Davenport and
4 Nos. 06-3201 and 06-3250
Wilson pleaded guilty to the conspiracy count and testified
against Gilmer and Bailey at trial. Other evidence intro-
duced at trial included records of phone calls made
between Wilson and Bailey, and between Bailey and
Gilmer; testimony from several DEA agents who con-
ducted surveillance on that day; and Bailey and
Gilmer’s post-arrest statements, in which both defendants
acknowledged that one kilogram of heroin was to be
purchased. Bailey stated that Wilson knew someone
who wanted a kilo, and that he “was along for the ride to
make $200.” Gilmer told the agents that Bailey called
him looking to buy a kilo of heroin, and that he was the
middleman who introduced Williams and Bailey.
The district court found Bailey and Gilmer guilty of both
counts on January 10, 2006. The court credited the testi-
mony of the DEA agents, as well as the testimony of the
cooperating co-conspirators (with the exception of their
conflicting testimony about the timing of events that day).
The court also considered Bailey’s post-arrest admissions
only as to Bailey, and not to Gilmer, so as to avoid a
Bruton problem. In finding that Bailey and Gilmer
were guilty of the conspiracy charge, the court spe-
cifically held that Gilmer’s conduct was inconsistent
with mere presence at the scene of the conspiracy,
finding that his actions and his admissions established
him as a co-conspirator. As for the possession charge,
the court found both defendants guilty under the Pinker-
ton theory of liability. The court analogized the con-
spiracy to a chain, each conspirator representing a link
in a chain, with each link knowing at least one co-con-
spirator, but not always more than one. The court dis-
cussed Gilmer’s role as the link between Bailey and
Williams, and that Williams’s testimony linked him to
Nos. 06-3201 and 06-3250 5
the chain of the conspiracy. During sentencing, the
court found that although Williams believed he was
selling 100 grams of heroin, that belief did not equate to
an agreement under the conspiracy theory. The court
said that it would consider the 83.3 grams of heroin for
sentencing purposes, but not the 13.3 grams of crack
cocaine, because there was no evidence that any co-con-
spirator had agreed to or contemplated the purchase of
crack. Bailey and Gilmer each filed motions for judg-
ment of acquittal, which the court denied on February 7,
2006. These timely appeals followed.
II. DISCUSSION
Gilmer and Bailey challenge the denial of their post-trial
motions, arguing that the evidence presented at trial was
insufficient to convict either of them on charges of con-
spiracy to distribute drugs. They also believe that the
government failed to prove the quantity of drugs alleged
in their indictments. Additionally, Gilmer argues that the
government violated the Speedy Trial Act, and that the
district court erred in admitting evidence of his prior
uncharged criminal activity. We address each contention
in turn.
First, Gilmer and Bailey argue that the government
presented insufficient evidence to support their convic-
tions, and that the district court should have granted
their motions for judgment of acquittal. In asserting
insufficiency of the evidence, a defendant carries a
heavy burden. A court of appeals does not stand in judg-
ment of the credibility of witnesses; rather that question
is left to the sound discretion of the trier of fact.
To support a conviction for conspiracy, the govern-
ment is required to prove that “two or more people agreed
6 Nos. 06-3201 and 06-3250
to commit an unlawful act and the defendant knowingly
and intentionally joined in that agreement.” United States
v. Duran, 407 F.3d 828, 835 (7th Cir. 2005) (citation omitted).
Gilmer argues the government failed to prove an agree-
ment between himself and the co-conspirators. Specif-
ically, Gilmer maintains that he had not previously
sold drugs with (or to) any of them, that he only knew
one of the co-conspirators (Williams), and there was no
consensus as to how the deal was to go down.
A defining characteristic of a conspiracy is a common
agreement “to further a single design or purpose.” United
States v. Thomas, 520 F.3d 729, 733 (7th Cir. 2008). “The
agreement need not be formal, and the government may
establish that agreement, as it may other elements of the
charge, through circumstantial evidence.” United States v.
Taylor, 116 F.3d 269, 271 (7th Cir. 1997) (citation omitted).
The government must prove an understanding—explicit
or implicit—among co-conspirators to work together to
commit the offense. United States v. Curtis, 324 F.3d 501,
505 (7th Cir. 2003).
The district court accurately characterized this con-
spiracy as links in a chain. Within the span of a few
hours, Davenport called Wilson and informed him that
he needed a kilo for a buyer. Wilson in turn contacted
Bailey, and Bailey proceeded to arrange the transaction.
Bailey called Gilmer, and Gilmer called Williams, who
was able to provide the drugs. The fact that Gilmer
only knew Williams hardly supports his belief that he
was not in an agreement with the other conspirators,
for “[a] conspiracy does not need discussions between
all parties—this is a classic links-in-a-chain conspiracy,
with [the defendant] assisting [a co-conspirator] in dis-
tributing drugs down the chain.” United States v. Johnson,
Nos. 06-3201 and 06-3250 7
137 F.3d 970, 973-74 (7th Cir. 1998); see also United States v.
Price, 258 F.3d 539, 545 (6th Cir. 2001) (finding that it
is sufficient in a “drug-chain conspiracy” to show that
each member of the conspiracy realized that he was
participating in a joint venture, even if he did not know
the identity of every other member, or was not involved
in all of the activities in furtherance of the conspiracy).
In viewing the evidence in the light most favorable to
the government, we find that Gilmer was in agreement
with the other conspirators to further a single purpose—
the distribution of heroin. Williams’s testimony was
particularly damning; he testified that he had supplied
heroin to Gilmer in the past, and that Gilmer called him on
the afternoon of January 3rd and asked him if he could
get a hold of some “dope” for a cousin of Gilmer’s friend.
Williams obtained the heroin, or what he believed was
heroin (it turned out to contain heroin and crack cocaine),
and Gilmer directed Williams to pick him and Bailey up.
As they were driving around, Gilmer asked if Williams
had the drugs, and Williams handed them over to Gilmer
for inspection. When they arrived at the designated
meeting spot, Williams testified that Gilmer directed
Bailey to tell the other conspirators in the Escalade to
meet at the Citgo (within the city limits) to make the deal,
because Gilmer did not “want to deal with the Cicero
police.”
Other evidence included Gilmer’s post-arrest state-
ments (corroborated by the testimony of a DEA agent), in
which he admitted that he acted as “the middleman”
between Bailey and Williams for the procurement of one
kilogram of heroin. He stated that when he received a
phone call from Bailey, who was looking for heroin, he
put him on the phone with Williams to “work out the
8 Nos. 06-3201 and 06-3250
details.” The three of them met an hour later, and Gilmer
stated that he was present for the discussion about how
the deal would play out. Gilmer drove to the scene for
the deal, and after Bailey got out of the car, Gilmer
switched the meeting place when he saw a police car in
the area. After conferring with Bailey on the phone, he
went to the Citgo gas station so they “could do the deal
with the guy.” When Gilmer saw the police, he ran to
avoid getting arrested. See United States v. Moore, 521 F.3d
681, 685 (7th Cir. 2008) (reasoning that evidence of a
conspirator “hightailing” it out of a pre-arranged meeting
place for a drug deal “bespeaks of guilty knowledge.”).
There is ample evidence that there was a conspiracy
and that Gilmer was a knowing member of it. Gilmer
knew Bailey was a drug dealer and assisted him in dis-
tributing drugs to at least one dealer farther down the
chain of distribution, namely Wilson. There were six-
teen telephone calls between Bailey and Gilmer on the
afternoon of January 3rd, and these calls immediately
preceeded or followed conversations between Bailey
and Wilson, Wilson and Davenport, and Davenport and
the informant. Gilmer was at the scene where the deal
was to take place. Gilmer’s belief that the conspirators
lacked a “consensus” on how the deal was to be made
lends no support to his cause. See United States v. Zarnes,
33 F.3d 1454, 1466 (7th Cir. 1995) (“A conspirator need
not be overly involved with other conspirators, or be
aware of the details of the conspiracy, to be held responsi-
ble for the acts of the conspiracy.”). Gilmer argues that
there was no evidence to show he had a financial stake
in the transaction, however the government need only
prove that Gilmer joined an agreement to distribute the
drugs. See United States v. Larkins, 83 F.3d 162, 167 (7th Cir.
Nos. 06-3201 and 06-3250 9
1996) (rejecting the argument that a defendant is not a
conspirator unless the government establishes that he
has a financial stake in the overall distribution of the
drugs). Because sufficient evidence existed to prove
Gilmer’s involvement with the conspiracy, Gilmer’s
argument that he cannot be liable for offenses com-
mitted by his co-conspirators under Pinkerton necessarily
fails. See Curtis, 324 F.3d at 506.
We now turn to Bailey’s challenge to the sufficiency of
the evidence against him. Bailey believes that his state-
ments, at most, reveal that he knew about the transaction
and was present for the preceding events, and mere
knowledge and presence cannot prove an agreement to
participate in a conspiracy.
While it is true that presence alone is not enough to
convict, a single act will suffice if the circumstances permit
the inference that the presence or act was intended to
advance the ends of the conspiracy. United States v. Macedo,
406 F.3d 778, 792 (7th Cir. 2005) (citing United States v.
Gutierrez, 978 F.2d 1463, 1469 (7th Cir. 1992)). “[O]ne need
not be at the heart of the conspiracy to be part of its
web.” Curtis, 324 F.3d at 506 (citation omitted). A con-
spiracy may be shown by evidence which shows that
the co-conspirators embraced the criminal objective of
the conspiracy, that the conspiracy continued towards
its common goal, and that there were co-operative rela-
tionships. United States v. Messino, 382 F.3d 704, 709
(7th Cir. 2004) (internal citations omitted); United States
v. Starks, 309 F.3d 1017, 1024 (7th Cir. 2002) (citing
United States v. Staten, 581 F.2d 878, 883-85 & n. 60 (D.C.
Cir. 1978) (“[T]he critical inquiry for judges is whether
the factfinder can reasonably conclude from the proof
that the accused likely had some appreciable ability to
guide the destiny of the drug.”)).
10 Nos. 06-3201 and 06-3250
Bailey cites our holding in United States v. Baker, 499
F.2d 845, 848 (7th Cir. 1974) to support his proposition
that Bailey was simply “along for the ride,” but his argu-
ment misses the mark. Baker held that criminal participa-
tion cannot be drawn merely from presence; a cul-
pable purpose is essential. In Baker, testimony revealed
that one co-defendant drove a car that one conspirator
rode in, engaged only in “small talk” at the location
where the drug transactions took place, and did not
participate in any conversations about drug dealing. In
reversing the co-defendant’s conspiracy conviction, we
held that where a single act of driving a car that a con-
spirator rode in, without more, was insufficient evidence
to infer intent to participate or associate with a conspir-
acy. See 499 F.2d at 847-49.
Plenty of evidence linked Bailey to the conspiracy. Bailey
was more than simply a driver of the car or an observer
at the site of the transaction. The government’s evidence
demonstrated that Bailey served as an intermediary in
the conspiracy, bridging the divide between a willing
buyer and seller by recruiting Gilmer to perform the
critical function of obtaining the heroin. See United States
v. Rock, 370 F.3d 712, 714 (7th Cir. 2004) (reasoning that
when defendants are on the same side of a sale of drugs
to a third party, there is sufficient evidence of a conspir-
acy). Bailey was in contact with Wilson throughout the
day on his cell phone, arranging the deal. Twenty-seven
calls were made between Bailey and Wilson that day.
Along with Bailey’s own admissions in his post-arrest
statements (during which he confirmed that Wilson told
him he needed help finding some heroin because he
knew someone who wanted “a key”), the district court
credited his co-conspirators’s testimony that Bailey
was involved in the conspiracy. Wilson testified that he
Nos. 06-3201 and 06-3250 11
asked Bailey to get a kilogram of heroin for a friend, and
Bailey promptly got on his cell phone. Later, Bailey
came over to Wilson’s house and told him he would get
the kilo, and that he would let Wilson know when it
was ready. Wilson stated that at one point, he and Bailey
could not decide on a proper meeting place, and that
when they ended the phone conversation, it seemed like
the deal was off. But Bailey called Wilson back and told
him that they needed the money and the deal should
happen. Bailey and Gilmer drove to meet Williams, who
showed Gilmer the drugs in the car while Bailey was
present. Davenport stated that when Bailey got into the
Escalade at Aldi’s, Bailey questioned him about whether
his people were the police, and asked about money. Both
Davenport and Wilson testified that Bailey told them
he wanted to leave the Aldi’s parking lot because there
were too many police in the area.
We decline to find that Bailey was simply “along for
the ride,” for common sense dictates that drug dealers
want to minimize contacts throughout a conspiracy,
therefore it is unlikely for innocent parties to be present
at drug deals. See United States v. Garcia, 439 F.3d 363,
367 (7th Cir. 2006); Starks, 309 F.3d at 1023 (holding that
the factfinder may infer that it runs counter to human
experience to suppose that criminal conspirators would
welcome innocent nonparticipants as witnesses to their
crimes) (quoting United States v. Batista-Polanco, 927
F.2d 14, 18 (1st Cir. 1991)). We believe that there was
sufficient evidence, beyond a reasonable doubt, that
Gilmer and Bailey conspired with each other and with
their fellow co-conspirators to distribute heroin.
Next, Gilmer and Bailey argue that because the gov-
ernment indicted the defendants for conspiracy to dis-
tribute at least 100 grams of heroin, they could only be
12 Nos. 06-3201 and 06-3250
convicted on that count if the court determined that the
conspiracy involved an amount greater than 100 grams.
Drug quantity is not an element of the charged offense
in the indictment. United States v. Abdulahi, 523 F.3d 757,
760 (7th Cir. 2008); United States v. Thomas, 328 F.3d 305,
309 (7th Cir. 2003) (holding that Apprendi does not make
drug quantity an “element” of the offense under 21 U.S.C.
§ 841). Quantity of drugs sold or possessed goes to the
severity of the sentence, not the existence of the crime.
United States v. Lechuga, 994 F.2d 346, 348 (7th Cir. 1993).
Defendants also argue that, under Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
when a certain amount of drugs would increase a de-
fendant’s sentence above the statutory maximum, the
quantity of drugs constitutes an essential element to a
drug conspiracy offense that must be charged in the
indictment and proved beyond a reasonable doubt. After
Apprendi, any fact that increases the statutory maximum
sentence must be proven to a jury beyond a reasonable
doubt or admitted by the defendant. Abdulahi, 523 F.3d
at 760. “But when a judge imposes a sentence below
the statutory maximum, he may do so based on facts
found by a preponderance of the evidence.” Id.The government’s sting was intended to bust a deal to
distribute one kilogram of heroin, but as more and more
players became involved, what began as a deal for one
kilo of heroin ended with a deal of a substantially
lesser amount (83.3 grams of heroin and 13.3 grams of
cocaine). The district court, recognizing the distinction
between the amount charged in the indictment (at least
100 grams of heroin) and the amount actually possessed,
held that it would consider the lesser amount for sentenc-
ing purposes, and sentenced both defendants under
Nos. 06-3201 and 06-3250 13
21 U.S.C. § 841(b)(1)(C), which holds a maximum statu-
tory penalty of twenty years. After a very thorough dis-
cussion of the factors listed in 18 U.S.C. § 3553(a), the
court sentenced Gilmer to 57 months and Bailey to
100 months’ imprisonment for each count, to run concur-
rently. Apprendi has no application to cases where the
sentence is below the statutory maximum. See Abdulahi,
523 F.3d at 760. The district court correctly applied the
preponderance of the evidence standard in determining
the amount of drugs involved in the conspiracy. See
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006)
(citing Booker for its conclusion that “judges may con-
tinue to make findings based on preponderance of the
evidence, provided that they do not treat the Sentencing
Guidelines as ‘laws’ with binding effect.”).
Next, Gilmer argues that the district court erred in
failing to dismiss his indictment as untimely under the
Speedy Trial Act, 18 U.S.C. § 3161(b). Gilmer was arrested
on January 3, 2005, and indicted on March 3, 2005, which
Gilmer argues is well outside the Act’s mandate that an
indictment must be filed within 30 days of an arrest.
Gilmer fails to consider an unopposed motion for an
extension of time to and including March 4, 2005, filed by
the government on January 19, which stated that the
government needed more time to issue subpoenas for
phone records, as well as to speak to other co-defendants
who expressed interest in cooperating with its case. The
district court made explicit findings to support the ends
of justice continuance, stating that “the ends of justice
served by this extension outweigh the best interests of
the defendants and the public in a speedy trial . . . in light
of the evidence that is important to this case . . . [and
because] some of the defendants may seek to cooperate
14 Nos. 06-3201 and 06-3250
with the government prior to indictment,” which the Act
allows for. Accordingly, the district court did not abuse
its discretion nor did Gilmer suffer actual prejudice
when the court granted a continuance under the Act.
Finally, Gilmer argues that the district court erred
in admitting Williams’ testimony about his prior drug
trafficking activity with Gilmer because (1) the evidence
was not intricately related to the charged conspiracy,
and (2) the testimony was far more prejudicial than
probative. The district court found that Gilmer’s prior
drug deals with Williams were relevant and admissible
because the prior deals were inextricably intertwined to
the charged offense. We review that decision for an abuse
of discretion, United States v. Price, 516 F.3d 597, 603
(7th Cir. 2008), and conclude that the evidence was prop-
erly admitted.
Evidence of uncharged criminal activity is admissible if
it is “intricately related to the facts of the case before the
court.” United States v. Ward, 211 F.3d 356, 362 (7th Cir.
2000) (internal quotations omitted). The admissibility of
such evidence is limited only by Fed. R. Evid. 403 and is
not subject to the limiting requirements of Fed. R. Evid.
404(b).1 Id.; United States v. Ramirez, 45 F.3d 1096, 1102 (7th
1
Rule 403 provides, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
Under Rule 404(b), “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
(continued...)
Nos. 06-3201 and 06-3250 15
Cir. 1995) (finding that cases applying the “intricately
related” doctrine have recognized that evidence con-
cerning the chronological unfolding of events that led to
an indictment, or other circumstances surrounding the
crime, is not evidence of “other acts” within the meaning
of Rule 404(b)). “Acts satisfy the inextricably intertwined
doctrine if they complete the story of the crime on trial;
their absence would create a chronological or con-
ceptual void in the story of the crime; or they are so
blended or connected that they incidentally involve,
explain the circumstances surrounding, or tend to prove
any element of, the charged crime.” United States v.
Senffner, 280 F.3d 755, 764 (7th Cir. 2000).
The prior drug deals explain the development of the
relationship between Gilmer and Williams that led to
their roles in the conspiracy. The earlier transactions
explained how Williams and Gilmer met, and how,
over time, Williams supplied heroin to Gilmer when he
asked for it. As the district court put it, “why [else] would
Gilmer come to Williams with a question as to whether
he could obtain a quarter to a half kilo of heroin?” We
have held in similar situations that testimony about
prior uncharged criminal activity was intricately related
to the charged conspiracy because it showed how the
witness’s relationship with a defendant “began, its basis,
and structure, and how the relationship blossomed into
the charged conspiracy.” See Ward, 211 F.3d at 362 (hold-
ing that testimony from cooperating witnesses about
1
(...continued)
admissible for other purposes, such as proof of motive, op-
portunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
16 Nos. 06-3201 and 06-3250
their prior drug transactions with a defendant was intri-
cately related to the facts of the charged drug con-
spiracy charges); Zarnes, 33 F.3d at 1469 (holding that
evidence of drug transactions completed before con-
spiracy began was intricately related to conspiracy case
because it showed how the relationship between the
parties began and unfolded into the charged conspiracy).
Moreover, in a bench trial, we assume that the district
court was not influenced by evidence improperly
brought before it unless there is evidence to the contrary.
III. CONCLUSION
For the foregoing reasons, the convictions of Anthony
Gilmer and Jamar Bailey are AFFIRMED.
USCA-02-C-0072—7-18-08