United States v. Joshua Bowser , 782 F.3d 793 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-1237, 14-1585 & 14-1592
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTIAN J. MILLER, FRANK JORDAN, AND
JOSHUA N. BOWSER,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-00102-TWP-DML — Tanya Walton Pratt, Judge.
____________________
ARGUED FEBRUARY 10, 2015 — DECIDED MARCH 31, 2015
____________________
Before POSNER, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Joshua Bowser, Christian Miller,
and Frank Jordan were convicted as part of a large-scale
prosecution of people associated with the Indianapolis
Chapter of the Outlaws Motorcycle Club. For those not
familiar with the Club, it was founded in 1935 in the
Chicagoland area as group of motorcycle enthusiasts, and its
website now boasts chapters all over the world. See Outlaws
2 Nos. 14-1237, 14-1585 & 14-1592
History, http://www.outlawsmcworld.com/history.htm (last
visited Mar. 23, 2015). The Club, or at least some of its
members, have had a spotty history of compliance with
criminal laws. See Outlaws Motorcycle Club, Wikipedia,
http://en.wikipedia.org/wiki/Outlaws_Motorcycle_Club (last
visited Mar. 23, 2015). On appeal, the defendants challenge
various aspects of their convictions and sentences. We
remand in regard to a single issue related to a condition of
Bowser’s supervised release, a point on which the
government confesses error. In all other respects, we affirm.
I. BACKGROUND
Following an extensive FBI investigation, in July 2012, a
grand jury in Indianapolis returned an indictment against 42
people associated with the Outlaws, including Bowser.
Miller and Jordan were added to the case later, along with
seven others. Ultimately, a Second Superseding Indictment
charged a total of 51 people with 49 criminal offenses.
Nearly all of the accused pleaded guilty to all the charges
against them. Bowser, Miller, and Jordan did not.
On September 5, 2013, Bowser pleaded guilty to ten
crimes, including wire fraud, extortion, witness tampering,
and conspiracy to distribute cocaine, but he pleaded nolo
contendere to an eleventh charge for violating the Racketeer
Influenced and Corrupt Organizations statute (“RICO”), 18
U.S.C. § 1962(c). In accepting Bowser’s plea, the district court
noted that pleading nolo contendere allowed Bowser to
refuse to admit that the Outlaws acted as a criminal
organization and thus maintain his membership in the
group. But the court decided that this concern was
outweighed by the time and expense saved by avoiding trial.
At sentencing, however, the court denied Bowser a
Nos. 14-1237, 14-1585 & 14-1592 3
reduction for acceptance of responsibility, see U.S.S.G. §
3E1.1, noting his nolo contendere plea and his refusal to
admit that the Outlaws were a criminal enterprise or to
accept that others conspired with him. Bowser nonetheless
received a prison sentence of 180 months, well below the
calculated guidelines imprisonment range of 235 to 293
months.
Meanwhile, on September 24, 2013, Miller proceeded to a
jury trial on allegations of racketeering. Miller’s defense
focused on arguing that the government could not prove the
robberies that it had charged as the predicate acts necessary
for finding him guilty of a “pattern” of racketeering under
§ 1962(c). In particular, Miller argued that an incident where
he confronted another Outlaws member, Bryan Glaze, about
stealing from the Outlaws was not actually a robbery
because Glaze knew what would happen as a result of him
having stolen from the Outlaws.
According to testimony at trial, Miller confronted Glaze
at the Outlaws clubhouse because Glaze had stolen from the
Club while performing his duties of ordering and collecting
money from other members for Outlaws merchandise.
During the confrontation, Miller pushed Glaze, and another
Outlaws member pointed a gun at Glaze and told him they
were not “fucking around.” Miller then demanded that
Glaze turn over his jewelry and clothing with the Outlaws
insignia. Altogether approximately 17 Outlaws were present.
One of those present was asked at trial if Glaze turned over
the items voluntarily or by threat of force and responded,
“Oh, by threat.” The Outlaws also took Glaze’s personal
items, including a television, stored in the Club’s
bunkhouse, though Glaze said they did so “without [his]
4 Nos. 14-1237, 14-1585 & 14-1592
knowledge.” As described by an eyewitness, this meant that
the Outlaws went and removed the property while Glaze
was confined to a chair and “couldn’t move.” Bowser then
summoned a tattoo artist to cover up Glaze’s Outlaws
tattoos. Glaze said that the other Outlaws “made it clear if
[he] didn’t cooperate with them, [he] probably wouldn’t
have walked out of there.” The jury found Miller guilty of
racketeering, and the district court sentenced him to 60
months’ imprisonment.
Lastly, on November 4, 2013, Jordan went to trial for
conspiracy to distribute cocaine, 21 U.S.C. § 846, and
unlawful use of a communication facility, id. § 843(b). His
trial lasted three days, during which the jury heard
testimony from numerous law enforcement officers involved
in investigating his illegal activities and from two of his co-
defendants, Hector Nava-Arredondo (“Nava”) and James
Stonebraker. According to the trial testimony, Nava sold
cocaine at Sidewinders, a bar in Indianapolis where Jordan
was a bouncer, in exchange for providing cocaine to the
bar’s owner. (Sidewinders might be described as an Outlaws
hangout.) Both Jordan and Stonebraker sold drugs that Nava
provided to them. The FBI became aware of Jordan’s
potential involvement in drug distribution after wiretapping
Nava’s telephone as part of the larger Outlaws investigation.
The government also played the jury several recordings
of intercepted telephone conversations between Jordan and
Nava. Before the recordings were played, Nava testified that
Jordan would typically call him when “he needed drugs to
sell to a client, a customer that he had.” The government
then played a recording in which Nava asked Jordan, “You
want some?,” and Jordan responded, “Yep, they just called
Nos. 14-1237, 14-1585 & 14-1592 5
me.” Nava explained that he understood Jordan to be
referring to his customer wanting drugs. The government
also played a call in which Jordan told Nava that he
“need[ed] another biscuit,” which Nava understood to mean
that Jordan needed 3.5 more grams, also known as an “eight
ball,” of cocaine. There was also a phone call where Jordan
told Nava that someone—who Nava understood to be
Jordan’s customer—was on his way, and Nava told Jordan
to bring money and meet him on the street.
Nava testified that, based on these conversations, he
believed that he had an agreement with Jordan to provide
Jordan with cocaine for Jordan to distribute to Jordan’s
customers. Nava explained that he provided Jordan with an
eight ball of cocaine once per week—at a cost of $140 each—
for approximately six months, until Nava’s arrest in 2012.
(An FBI agent explained that, during the investigation in this
case, the street value of an eight ball of cocaine was
approximately $150, and that the typical dosage of cocaine is
“less than a gram, maybe a 16th of a gram.”) Jordan usually
paid cash, Nava said, but Nava also fronted him cocaine on
two or three occasions. Nava also explained that he
frequently fronted cocaine to another person, Abraham
Flores, who would also sometimes give cocaine to Jordan to
resell. Nava said that he occasionally shared the proceeds of
his drug sales with Jordan. On cross-examination, Nava
indicated that he did not care whether Jordan resold the
cocaine or used it himself.
During Stonebraker’s testimony, he explained that he
began purchasing cocaine at Sidewinders in 2010 after
Bowser took him to the bar and asked the owner to
introduce him to a cocaine supplier. Initially, Stonebraker
6 Nos. 14-1237, 14-1585 & 14-1592
and Bowser bought drugs from Flores, and Stonebraker
would receive an eight ball two or three times per week.
After two months, however, Stonebraker began dealing
instead with Nava and purchased a quarter to a full ounce
from him three to four times per week for roughly a year
and a half. Stonebraker used cocaine himself and sold it to
others, particularly members of the Outlaws. While waiting
for Nava, Stonebraker said that he witnessed other people
come to Sidewinders and buy cocaine from Jordan. This
happened once or twice per weekend, with Jordan typically
selling small quantities of cocaine (from .1 to 1 gram) that he
would parcel off from a larger quantity he kept in a baggie.
According to Stonebraker, Nava introduced Stonebraker to
Jordan because they both bought cocaine from Nava, and
Nava told Stonebraker that he could get cocaine from Flores
or Jordan if Nava was unavailable. Stonebraker added that,
on two or three occasions, he saw Jordan buy cocaine from
Flores, who told Stonebraker that he was Jordan’s primary
cocaine source, though Jordan also received drugs from
Nava.
The jury found Jordan guilty of distributing cocaine and
also specifically found him accountable for distributing 500
or more grams of the drug. After trial, Jordan moved for
acquittal, see Fed. R. Crim. P. 29, on the basis that the
government had presented insufficient evidence to sustain
his conviction for conspiracy to distribute cocaine. In
denying the motion, the district court emphasized that Nava
had testified that he fronted Jordan cocaine two or three
times and had agreed with Jordan that Jordan would resell
drugs. The court also cited Nava’s testimony that over the
course of six months Jordan frequently bought cocaine from
Nos. 14-1237, 14-1585 & 14-1592 7
him to resell, and Stonebraker’s testimony that he was told
he could buy drugs from Jordan if Nava was unavailable.
At sentencing, the district court concluded, over Jordan’s
objection, that he had a prior felony drug conviction, giving
rise to a mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(B). The court then imposed the minimum prison
term of 120 months.
II. DISCUSSION
Bowser, Miller, and Jordan consolidated their appellate
briefing. Because the bulk of the issues raised in these briefs
relate to Jordan, we begin there.
A. Jordan
Jordan first challenges the sufficiency of the evidence
supporting his conviction for conspiracy to distribute
cocaine. Where, as here, a defendant challenges the
sufficiency of the evidence by moving for acquittal after trial,
we will uphold the jury’s verdict if, viewing the evidence in
the light most favorable to the government, any rational trier
of fact finder could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Molton, 743
F.3d 479, 483 (7th Cir. 2014); United States v. Torres-Chavez,
744 F.3d 988, 993 (7th Cir. 2014). We have referred to this
standard as “a nearly insurmountable hurdle,” recognizing
that we will reverse “only when the record contains no
evidence, regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt.” Torres-
Chavez, 744 F.3d at 993 (quotation and alteration omitted);
accord United States v. Domnenko, 763 F.3d 768, 772 (7th Cir.
2014).
8 Nos. 14-1237, 14-1585 & 14-1592
Looking to the elements of conspiracy, the Supreme
Court “has repeatedly said that the essence of a conspiracy is
‘an agreement to commit an unlawful act.’” United States v.
Jimenez Recio, 537 U.S. 270, 274 (2003) (quoting Iannelli v.
United States, 420 U.S. 770, 777 (1975)). But as Jordan
emphasizes, although the “drug sale is itself an agreement,”
that sale “cannot also count as the agreement needed to find
conspiracy.” United States v. Brown, 726 F.3d 993, 998 (7th
Cir. 2013). Thus, “when the alleged co-conspirators are in a
buyer-seller relationship, ‘we have cautioned against
conflating the underlying buy-sell agreement with the drug-
distribution agreement that is alleged to form the basis of the
charged conspiracy.’” United States v. Villasenor, 664 F.3d 673,
679 (7th Cir. 2011) (quoting United States v. Johnson, 592 F.3d
749, 754 (7th Cir. 2010)). Rather, in these situations, “‘the
government must offer evidence establishing an agreement
to distribute drugs that is distinct from evidence of the
agreement to complete the underlying drug deals.’” United
States v. Claybrooks, 729 F.3d 699, 704 (7th Cir. 2013)
(quoting United States v. Vallar, 635 F.3d 271, 286 (7th Cir.
2011)). In other words, to convict Jordan of conspiracy to
distribute cocaine, the government needed to show that he
“‘knowingly agreed—either implicitly or explicitly—with
someone else to distribute drugs.’” Villasenor, 664 F.3d at 679(quoting Johnson, 592 F.3d at 754).
The district court appropriately summarized this case
law for the jury using the buyer–seller instruction from
pattern jury instructions developed by a committee
appointed by this court. See Committee on Federal Criminal
Jury Instructions for the Seventh Circuit, Pattern Criminal
Jury Instructions of the Seventh Circuit 5.10(A) (2012),
available at
Nos. 14-1237, 14-1585 & 14-1592 9
http://www.ca7.uscourts.gov/Pattern_Jury_Instr/7th_crimina
l_jury_instr.pdf. According to that instruction, “a buyer and
seller of cocaine do not enter into a conspiracy to possess
cocaine with intent to distribute simply because the buyer
resells cocaine to others, even if the seller knows that the
buyer intends to resell the cocaine.” Id. at 73. Instead, “the
government must prove that the buyer and seller had the
joint criminal objective of distributing cocaine to others.” Id.;
see Brown, 726 F.3d at 997–1004 (discussing the reasoning
behind the current pattern instruction).
Jordan insists that the government failed to meet its
burden because it did not show that his dealings with Nava
went beyond the relationship of a buyer and seller. He
acknowledges that Nava interpreted their phone calls as an
agreement for Jordan to resell the drugs, and that this
relationship persisted for roughly six months, with Nava
sometimes fronting Jordan cocaine, or sharing the proceeds
of his drug sales with him. But he points to our admonition
in Brown, 726 F.3d at 999, that transactions “exhibiting
frequency, regularity, and standardization, do not evince the
substantial relationship entailed in a conspiracy.”
See also United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008)
(warning against the notion that wholesale purchases of
cocaine are per se proof of conspiracy). In Brown we also
acknowledged that, although it is “generally
uncontroversial” that “if a person buys drugs in large
quantities (too great for personal consumption), on a
frequent basis, on credit, then an inference of conspiracy
legitimately follows,” it is “[l]ess clear … what combinations
of those three characteristics—a credit arrangement, a large
quantity, and frequent sales—are sufficient.” 726 F.3d at
1000. Jordan emphasizes that he purchased only 3.5 grams of
10 Nos. 14-1237, 14-1585 & 14-1592
cocaine per week—an amount he maintains is consistent
with personal use—and that there were only as many as
three sales on credit.
Although we have not always been clear on what factors
point to the existence of a conspiracy, we have stressed the
need to “not lose sight of the larger picture—deciding
whether the jury reasonably discerned an agreement to
further trafficking of drugs.” Id. at 1002. And here, as the
district court emphasized, Nava testified that, based on his
telephone conversations with Jordan, he understood that he
had a relationship with Jordan that went beyond that of
buyer and seller and included an agreement for Jordan to
further distribute the drugs Nava provided.
Jordan asserts that his conversations with Nava could be
interpreted differently, but Nava’s interpretation was not
only reasonable but bolstered by additional evidence at trial.
Stonebraker testified, for example, that he witnessed Jordan
selling cocaine at Sidewinders, and that Nava told
Stonebraker that Jordan received cocaine from him and that
Stonebraker could get cocaine from Jordan if Nava was
unavailable. Additionally, although Jordan maintains that
buying cocaine at a rate of 3.5 grams weekly is consistent
with personal use, according to the testifying FBI agent, that
quantity, even spread over the course of a week, would be at
the high end of the typical dosage for a single user.
Moreover, there was evidence that Nava was not Jordan’s
only supplier. We are persuaded that the trial evidence,
viewed in the light most favorable to the government, was
sufficient for a rational trier of fact to find Jordan guilty of
conspiracy. See United States v. Moon, 512 F.3d 359, 364 (7th
Cir. 2008) (upholding conspiracy conviction when recorded
Nos. 14-1237, 14-1585 & 14-1592 11
conversations implied that buyer and seller had worked
together and a jury could infer that seller extended credit to
buyer); United States v. Lechuga, 994 F.2d 346, 350–51 (7th Cir.
1993) (en banc) (upholding conspiracy conviction based on
testimony from buyer that seller agreed to sell him drugs for
the buyer’s customer).
Jordan next seeks to undermine the government’s
questioning of Stonebraker and Nava at trial, arguing that
the prosecutor asked improper leading questions. In
particular, he challenges this question to Stonebraker:
“Going to the point where Hector Nava introduced you to
Frank Jordan, yes or no, did Mr. Nava make any statements
to you about people you could go to to get cocaine from,
other than Mr. Jordan?” (Jordan quotes the end of this
question as “other than Mr. [Nava],” asserting that the
transcript’s use of “Jordan” is a misprint. In context, “Nava”
might make more sense, but our resolution of this issue does
not require us to settle this difference.) Stonebraker
answered, “yes,” and then named Jordan and Flores as
people he could get cocaine from if Nava was unavailable.
Jordan asserts that this was the only testimony indicating
that Nava’s customers could buy drugs from Jordan in
Nava’s absence.
We review the court’s treatment of leading questions for
abuse of discretion, see United States v. O’Brien, 618 F.2d 1234,
1242 (7th Cir. 1980), and see none here. A question is leading
if “phrased in such a way as to hint at the answer the
witness should give.” United States v. Cephus, 684 F.3d 703,
707 (7th Cir. 2012). Here, however, the question was
ambiguous enough that we cannot say that trial judge
abused her discretion in allowing it. Moreover, although
12 Nos. 14-1237, 14-1585 & 14-1592
leading questions “should not be used on direct examination
except as necessary to develop the witness’s testimony,”
Fed. R. Evid. 611(c), “[t]here is no blanket prohibition of such
questions,” and they are permissible if “used with friendly
witnesses to move direct examination along rather than to
elicit testimony damaging to the opposing party that the
witness might not have given in response to a neutral
question.” Cephus, 684 F.3d at 707. Jordan has not convinced
us that Stonebraker or Nava would have testified any
differently if presented with unambiguously neutral
questions.
Jordan also challenges the district court’s decision to bar
questions about Stonebraker’s 1974 felony conviction for
heroin possession. As part of the Outlaws prosecution,
Stonebraker pleaded guilty to multiple drug-distribution
charges and received a 30-month sentence. But if convicted
in an Indiana state court, Jordan argues, Stonebraker would
have faced a mandatory 20-year sentence because of the
earlier state felony. Jordan thus wanted to use testimony
about the conviction to suggest Stonebraker was biased and
argues that the decision barring this testimony deprived him
of his Sixth Amendment right to confront Stonebraker.
We disagree. Jordan relies on United States v. Martin, 618
F.3d 705, 727–29 (7th Cir. 2010), which held that it was error
to preclude cross-examination about a witness’s
involvement in a pending, unrelated murder investigation,
and Delaware v. Van Arsdall, 475 U.S. 673, 676–80 (1986),
which held that it was error to preclude questions about the
dismissal of a witness’s unrelated criminal charge being
dropped in exchange for his testimony. But both Martin and
Van Arsdall involved situations where there was evidence
Nos. 14-1237, 14-1585 & 14-1592 13
that the witnesses at issue had been recently investigated by
state officials, while here there is no indication that state
officials considered charging Stonebraker. Rather, as the
government notes, Stonebraker testified that he cooperated
in hopes that it would help with the federal charges against
him. Jordan gives no persuasive reason to believe that the
probative value of testimony about Stonebraker’s nearly 40-
year-old conviction would substantially outweigh its
prejudicial effect, as required for admission under Federal
Rule of Evidence 609(b)(1). The district court thus properly
excluded testimony about the prior conviction.
In regard to his sentence, Jordan argues that the
government failed to prove that he was convicted of a prior
drug felony for purposes of the 10-year mandatory
minimum under § 841(b)(1)(B). Under existing precedent,
the existence of a prior felony conviction is considered a
sentencing factor that may be determined by a judge. United
States v. Zuniga, 767 F.3d 712, 718 (7th Cir. 2014); United
States v. Boswell, 772 F.3d 469, 478 (7th Cir. 2014). When a
defendant challenges the existence of a prior conviction, as
Jordan did, the government must prove it beyond a
reasonable doubt. 21 U.S.C. § 851(c)(1); United States v.
Arreola-Castillo, 539 F.3d 700, 704–05 (7th Cir. 2008). We
review for clear error the factual determinations the district
court makes in the course of concluding that the evidence is
sufficient. Arreola-Castillo, 539 F.3d at 703.
The government presented three pieces of evidence to
prove the existence of Jordan’s earlier conviction. First, the
government submitted a certified copy of a court record
from Marion County, Indiana, showing that a person with
the name Frank Jordan was convicted of cocaine possession
14 Nos. 14-1237, 14-1585 & 14-1592
in 2007. The government also submitted a computer printout
from Marion County’s records system listing the same case
number, along with Jordan’s name, and a social security
number and birth date matching those given in Jordan’s
presentence report in this case. Finally, the government
provided a police report related to the state conviction
showing the charge, Jordan’s name, and the birth date listed
in the court’s record system.
Jordan argues that this evidence was insufficient, noting
that the documents contain hearsay and that the presentence
report contains two possible birthdays. He also points to
United States v. Kellam, 568 F.3d 125, 144–45 (4th Cir. 2009),
which held that court records related to an earlier conviction
did not suffice to link a defendant to that conviction, even
though the documents contained the defendant’s name and
a partially redacted social security number and birthday. See
also United States v. Green, 175 F.3d 822, 835–36 (10th Cir.
1999) (holding that proof of earlier convictions under
defendant’s aliases not sufficient). Jordan argues that the
court here should have required the government to produce
photographs or fingerprint analysis establishing that he was
the same Frank Jordan that committed the prior felony.
This argument is unpersuasive. First, as Jordan
acknowledges, the rules of evidence are inapplicable to
sentencing hearings, Fed. R. Evid. 1101(d)(3), so the use of
hearsay evidence here did not amount to reversible error,
see United States v. Sewell, No. 14-1384, 2015 WL 1087750, at
*9 (7th Cir. Mar. 13, 2015) (“District courts may rely
on hearsay testimony in formulating an
appropriate sentence, ‘provided that the information has
sufficient indicia of reliability to support its probable
Nos. 14-1237, 14-1585 & 14-1592 15
accuracy.’” (quoting United States v. Clark, 538 F.3d 803, 813–
14 (7th Cir. 2008))). Furthermore, in both Kellam and Green,
unlike here, there were discrepancies between the names on
the documents related to the earlier convictions and the case
at hand. And critically, neither case involved the matching of
full social security numbers. Jordan had the presentence
report listing his social security number in advance of
sentencing and never objected to it as incorrect. We thus see
no need for the government to have produced photographs
or fingerprints related to the seven-year-old prior conviction,
especially since Jordan proffered nothing to refute the
government’s evidence. Accordingly, the district court
properly accepted the government’s evidence as proof
beyond a reasonable doubt that Jordan had a prior felony
drug conviction.
B. Miller
Miller raises only one argument: that the government
failed to prove that the incident where he and others
expelled Glaze from the Outlaws amounted to a robbery.
The government charged Miller with violating 18 U.S.C.
§ 1962(c), which makes it “unlawful for any person
employed by or associated with any enterprise engaged in,
or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.” The
showing of a pattern of racketeering activity “requires at
least two acts of racketeering activity,” 18 U.S.C. § 1961(5),
and those acts can include robberies chargeable under state
law, id. § 1961(1); United States v. Genova, 333 F.3d 750, 757
(7th Cir. 2003). (Miller does not challenge on appeal the
16 Nos. 14-1237, 14-1585 & 14-1592
government’s proof of a second predicate act—another
robbery committed a month before the robbery at issue.)
Under Indiana law, a person commits robbery when he
knowingly or intentionally takes property from another
person by threatening use of force, Ind. Code § 35-42-5-1(1),
and is liable for the offense even if he aided or induced its
commission, id. § 35-41-2-4.
Miller argues that he and his fellow Outlaws did not
commit robbery because, in his view, their demanding that
Glaze turn over Outlaws items was separate from any
displays of force. Miller also argues that this divestment of
property was expected as part of removal from the Club.
Miller admits, however, that “there was certainly overlap
between the force used on Glaze and the taking of
property,” and according to an eyewitness, Glaze turned
over his items not voluntarily, but “by threat.” The Outlaws
present also removed Glaze’s personal items while he was
confined to a chair and, Glaze testified, “made it clear if [he]
didn’t cooperate with them, [he] probably wouldn’t have
walked out of there.” We thus conclude that the displays of
force against Glaze were part of the same event as the taking
of his property and, construing the facts in the light most
favorable to the government, constituted a chargeable
offense of robbery under Indiana law.
C. Bowser
Bowser challenges only his sentence, first arguing that
the district court erred by relying on the nature of his plea of
nolo contendere to the RICO charge (Count 1 of the Second
Superseding Indictment) to deny him a sentencing reduction
for acceptance of responsibility. A plea of nolo contendere,
Bowser notes, “admit[s] every essential element of the
Nos. 14-1237, 14-1585 & 14-1592 17
offense that is well pleaded in the charge” and thus “is
tantamount to an admission of guilt for the purposes of the
case.” Lott v. United States, 367 U.S. 421, 426 (1961) (quotation
and alterations omitted). Bowser emphasizes that he pleaded
guilty to ten underlying offenses and contends that the court
applied a per se rule that a nolo contendere plea precludes
the acceptance reduction—a rule, he says, that no circuit has
adopted. He argues that the court instead should have
addressed the factors listed in U.S.S.G. § 3E1.1, cmt. n.1, and
considered how he saved judicial resources by avoiding
trial.
Under U.S.S.G. § 3E1.1(a), a district court is to provide a
two-level reduction in a defendant’s offense level “[i]f the
defendant clearly demonstrates acceptance of responsibility
for his offense.” The court here explained its reasons for
denying the reduction as follows:
[W]hile Mr. Bowser has admitted his guilt to
the underlying acts involved in Count 1,
because he neither admits nor disputes his
guilt in Count 1 through his nolo contendere
plea, … he’s not taken responsibility or
accepted responsibility for his actions.
Mr. Bowser has not admitted that the Outlaws
Motorcycle Club was a criminal enterprise. He
will not admit and accept responsibility for the
fact that others did conspire with him. He just
says others in general. So the Court is not
going to give the two level.
Bowser argues that everything in this explanation is
simply a restatement of the nature of his nolo contendere
plea. But we disagree. In our view, the court went beyond
18 Nos. 14-1237, 14-1585 & 14-1592
relying solely on the nature of Bowser’s plea by citing
specific facts about how he refused to acknowledge the
Outlaws as a criminal organization or identify his co-
conspirators. Bowser insists that his actions can be explained
by the fact that he views the Outlaws as his family, and as
the district court explained in accepting his plea,
acknowledging the Outlaws as criminal would likely lead to
his expulsion.
But because the district court evaluated the facts
surrounding Bowser’s plea and made specific observations
about his refusal to acknowledge his association with a
criminal organization, we are not persuaded that the court
committed reversible error in denying Bowser the reduction
for acceptance of responsibility. Even a defendant who
pleads guilty “is not entitled to an adjustment under
[§ 3E1.1] as a matter of right.” U.S.S.G. § 3E1.1, cmt. n.3;
see United States v. Dachman, 743 F.3d 254, 259 (7th Cir. 2014);
United States v. Panice, 598 F.3d 426, 435 (7th Cir. 2010).
Rather, the sentencing judge is given discretion to make
factual findings about the defendant’s credibility and
conduct, and we review those findings for clear error, giving
“great deference to the sentencing judge because [she] is in a
‘unique position to evaluate a defendant’s acceptance of
responsibility.’” Dachman, 743 F.3d at 260 (quoting United
States v. Frykholm, 267 F.3d 604, 610 (7th Cir. 2001)). “The
findings of the trial judge in sentencing will only be reversed
if the decision lacks any foundation or the court is ‘left with
the definite and firm conviction that a mistake has been
committed.’” United States v. Seidling, 737 F.3d 1155, 1162
(7th Cir. 2013) (quoting United States v. Souffront, 338 F.3d
809, 832 (7th Cir. 2003)). Even considering Bowser’s
motivation for pleading as he did, we are not convinced that
Nos. 14-1237, 14-1585 & 14-1592 19
the court clearly erred in finding he had not accepted
responsibility for purposes of § 3E1.1.
This analysis is in line with our approach recently in
Dachman, 743 F.3d at 261 n.2, in which we declined to decide
whether a nolo contendere plea alone precludes a finding of
acceptance of responsibility when “other facts were more
than sufficient to justify the district court’s denial of
acceptance of responsibility.” As the government notes, it
also conforms with the approach of other circuits, which
have upheld the denial of the § 3E1.1 sentencing reduction to
defendants entering similar pleas when the trial court relied
on additional facts beyond the nature of the plea.
See, e.g., United States v. Harris, 751 F.3d 123, 125, 127 (3d Cir.
2014) (upholding denial of acceptance reduction even
though “a nolo contendere plea does not automatically
preclude a district court from granting such a reduction”);
United States v. Harlan, 35 F.3d 176, 181 (5th Cir. 1994)
(upholding denial of acceptance reduction and noting that
Alford plea was relevant, but not a disqualifying factor, for
applying the reduction).
Moreover, although Bowser emphasizes that he
prevented the expense of trial, we have rejected the
argument that a defendant is “entitled to the reduction
because his nolo contendere plea saved the government and
district court the time and expense of a long and
complicated trial.” United States v. Boyle, 10 F.3d 485, 490 (7th
Cir. 2010). It is true that one of the underlying purposes for
the sentencing reduction under § 3E1.1 “is to reduce the
burdens of trial to prosecutors, judges, victims, jurors, and
witnesses by inducing defendants to plead guilty.” United
States v. Gonzalez, 608 F.3d 1001, 1008 (7th Cir. 2010). But
20 Nos. 14-1237, 14-1585 & 14-1592
because the reduction serves many other purposes—“the
societal interest in crime reduction, restitution,
rehabilitation, early withdrawal from criminal activity and
withdrawal of criminals from positions of trust and
responsibility”—adopting a rule mandating the reduction
solely for avoiding the costs of trial “would ignore these
other purposes and emasculate the Guideline.” Boyle, 10 F.3d
at 490.
Bowser also argues that the district court erred in
imposing a condition of supervised release authorizing
suspicionless searches of his person, home, and effects. The
government confesses error, acknowledging that United
States v. Farmer, 755 F.3d 849, 854 (7th Cir. 2014), concluded
that a condition of release authorizing suspicionless searches
is improper when the court does not connect that condition
to the underlying offense. Here, the court said only that the
search condition was imposed based on “the nature of the
instant offense,” without elaborating. Given the brevity of
the court’s comment, we accept the government’s confession
of error.
We have considered the additional arguments presented
in the appellants’ briefs, including Jordan’s arguments
regarding his right to a speedy trial and inaccuracies in
Stonebraker’s testimony about Stonebraker’s drug use, but
we do not believe that these arguments warrant discussion
beyond that of the district court in its rulings on those issues.
Accordingly, the judgments against Jordan, Miller, and
Bowser are AFFIRMED, with the exception that Bowser’s case
is REMANDED to the district court for further consideration of
the term of his supervised release authorizing suspicionless
searches.