United States v. Whitt, Samuel ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2017
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL WHITT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 95 CR 33--William C. Lee, Chief Judge.
Argued January 11, 2000--Decided May 1, 2000
Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On December 20, 1995, a
federal grand jury sitting in the Northern
District of Indiana returned a one count
indictment charging Samuel Whitt with conspiracy
to distribute cocaine, in violation of 21 U.S.C.
sec. 846. After a jury returned a guilty verdict,
the judge sentenced Whitt to life imprisonment,
five years’ supervised release, and a $50 special
assessment. On appeal, Whitt argues that: 1) the
district court erred in not giving the jury an
instruction on a multiple conspiracy; 2) the
indictment was constitutionally defective because
it did not specifically allege the type and
quantity of controlled substances; and 3) the
trial court erroneously calculated the quantity
of drugs for which he was responsible. We affirm.
I. BACKGROUND
Although Whitt was not indicted until 1995, the
genesis of the case occurred in 1992 when the
government charged seven people, including Ruby
Lamb (Ruby), Necole Lamb (Necole), and Helen
Jackson (Helen),/1 with conspiring to possess
and distribute cocaine. After Ruby, Necole, and
Helen were convicted by a jury (counsel for the
appellant informed this Court at oral argument
that the other four were acquitted), they
received lengthy prison sentences./2
Understandably unhappy with the prospect of
spending a considerable portion of their lives
behind bars, the three women contacted the
government and agreed to assist in the case
against Whitt in exchange for reduced
sentences./3
Although Whitt was not indicted until 1995, the
joint federal, state, and local investigation of
Whitt’s and Ruby’s criminal activities began in
1990. This investigation revealed that Whitt and
Ruby were the organizers and leaders of a
conspiracy to distribute controlled substances in
the Northern District of Illinois; a conspiracy
which distributed not only cocaine, but heroin
and marijuana as well. And although Whitt was
charged with a conspiracy to distribute
controlled substances between December 1990 and
September 1991, the government believed that
Whitt and Ruby had been involved in the illegal
distribution of controlled substances since the
late 1970’s or early 1980’s.
As the leader and organizer of this conspiracy,
Whitt recruited Helen and Necole into the
conspiracy for the purpose of storing cocaine and
heroin at their residences and to distribute
narcotics./4
A. The Drugs
Not only did Whitt recruit individuals to
distribute narcotics for his operation, but he
also personally supplied Necole and Ruby with
cocaine for distribution. According to Necole,
Whitt supplied her with the following amounts of
cocaine for distribution from approximately June
1990 to December 1990: ounce of cocaine three
times a week, for a total of approximately one
kilogram of cocaine during the last half of 1990.
Whitt also supplied Ruby with three to four
bags of cocaine per week from 1990 through April
1991. Each bag contained the following quantities
of cocaine: 10 - one ounce amounts; 10 - 1/2
ounce amounts; 10 - 1/4 ounce amounts; and 10 -
1/8 ounce amounts. Thus, Whitt supplied Ruby with
approximately 57 ounces of cocaine per week; for
a total, averaged over the whole period, of
approximately 108 kilograms of cocaine./5
Not only did Whitt supply members of his
organization with drugs, but he also, at times,
sold narcotics directly to customers. During
1991, the investigative agents in this case used
various informants to purchase 1/8 ounce
quantities of cocaine from the defendant for
approximately $200 a buy./6
B. The Money
Further supporting the government’s contention
that Whitt was involved in a large drug
operation, law enforcement agents seized
approximately $119,000.00 from Whitt and Ruby in
March of 1990 while the two were at the Miami
International Airport./7 As the sentencing judge
concluded, Whitt has yet to offer a satisfactory
explanation as to how the two of them came into
possession of such a large sum of money,
especially given the fact that neither he nor
Ruby had a visible means of income.
In addition, on February 8, 1991, two of the
individuals Whitt recruited into his operation,
Lavon Chandler and John Starkes, Whitt’s sister
and cousin, respectively, were stopped near
Daytona Beach, Florida, in Chandler’s
automobile./8 After the two agreed to allow the
officers to search the car, police discovered a
suitcase containing $343,540.00 in the trunk of
the vehicle.
During the course of the stop, Starkes and
Chandler were placed in the back of a police
squad car. As the two individuals were trying to
decide upon an explanation for the money found in
the trunk of their car, a hidden microphone in
the squad car captured the following conversation
between the two detainees:
Chandler: Only thing I know is we just be quiet,
quit acting crazy. When they ask, they said we
had the right to remain quiet, tell ’em we don’t
want [to] talk cause we didn’t do anything wrong.
Starkes: But what attorney we gonna get?
Chandler: We can deal with that when we get back
home, now just say it’s my money and we don’t
want to talk to nobody.
Starkes: Say it’s yours.
Chandler: It don’t matter . . . if you wanna say
it’s mine you can.
Starkes: [Unintelligible]
Chandler: All I’m saying is we don’t know.
Starkes: Okay. We should have talked to Sam. We
should have talked to him and found out what to
do if a situation like this came about.
Chandler: Promise me [unintelligible] don’t want
anyone to know./9
According to the PSR, Whitt offered this rather
lame version of events surrounding the alleged
conspiracy:
Mr. Whitt contends that at no time between
December of 1990 and September 4, 1991 [the dates
charged in the indictment], did he join a
conspiracy to distribute controlled substances.
He indicates that he knew the participants who
had been convicted previously of the conspiracy,
but did not have them either working for him or
conspiring with him to violate the controlled
substance law. Mr. Whitt further cannot explain
how his left thumb print was on two of the
baggies in question. He indicates that it could
have been when he visited Helen Jackson’s
residence and she cooked dinner for him which
occurred on several occasions during the
operative period. Mr. Whitt further contends that
he did not direct Helen Jackson or [Necole] Lamb
in their drug dealing activities in any manner
whatsoever. The drug ledger involved was kept in
the hand of Helen Jackson and was kept for the
purpose of keeping an account of her sister, Ruby
Lamb’s drug inventory.
After a two day trial, the jury found Whitt
guilty of conspiracy to distribute cocaine. At
Whitt’s sentencing hearing, the government argued
that the defendant was directly responsible,
under the relevant conduct provision of the
guidelines, for at least 607 kilograms of
cocaine. The government, in reaching its drug
calculation, relied heavily on Ruby’s testimony
concerning her trips to south Florida with Whitt
to purchase cocaine. Ruby testified that between
1989 and 1992 she traveled with the defendant on
thirty occasions to south Florida and purchased
between 15 and 20 kilograms each trip. The
government further argued that "for sentencing
purposes the government would split the
difference between these two numbers for an
average of 17.5 kilograms of cocaine per each
trip." Because Ruby testified that on one trip
they purchased one hundred kilograms, the
government asserted that the total amount Whitt
was accountable for was at least 607 kilograms
(17.5 x 29 trips = 507.5 kilograms + 100
kilograms = 607.5 kilograms).
Whitt, on the other hand, argued that "the
undercover buys by the informants, the amount of
drugs estimated in the ledger, the amount of
drugs seized [from his residence], and the one
statement by Ms. Lamb could form a reliable basis
for determining the drug quantity in this case.
Using that information, the drug quantity would
be approximately 3.5 kilograms--on the generous
side."
The district court, in concluding that Whitt
was responsible for over 150 kilograms of
cocaine, determined that Whitt was
conservatively responsible for approximately 21.2
kilograms. Additionally, defendant is responsible
for the amount of drugs seized in the raid. Thus,
to the above sums, must be added 44.6 grams of
heroin, along with 1.6 kilograms of marijuana and
262 grams of cocaine which converts to [a] total
[of] approximately 21.5 kilograms of cocaine.
The figure, however, only takes into account
the actual charged period of the conspiracy and
a two month period when [Necole] Lamb resumed
working for the defendant . . . . It does not,
however, account for other relevant conduct.
In holding Whitt accountable for additional
quantities of cocaine, the sentencing judge
relied on the testimony of Ruby Lamb, stating
that he believed her testimony despite the fact
that she suffered a nervous breakdown in 1991 and
that some of her testimony was shown to be
incorrect.
As mentioned previously, Ruby testified that she
and Whitt purchased 15 to 20 kilograms of cocaine
on 30 different occasions between 1989 and 1991.
Additionally she testified that she went to Los
Angeles on five different occasions in 1990 to
purchase "10 to 15 balls of black tar heroin."
Given the large amounts of narcotics Ruby
testified to, the sentencing judge stated that
"[i]n sum, with respect to the amount of drugs
attributable to the defendant, this Court is of
the view that defendant was responsible for
distribution in excess of 150 kilograms of
cocaine (let alone whatever amount of heroin)
which, for the purposes of the sentencing
guidelines is all that really matters since the
guidelines top off at that level." Whitt appeals.
II. ISSUES
On appeal, we consider: 1) whether the district
court erred by not giving the jury an instruction
on a multiple conspiracy; and 2) whether the
trial court erroneously calculated at sentencing
the quantity of drugs for which Whitt was
responsible./10
III. DISCUSSION
A. Multiple Conspiracy Jury Instruction
Normally, the finding of the existence of a
single conspiracy is one that this court will
overturn only for clear error. See United States
v. Narvaez, 995 F.2d 759, 762 (7th Cir. 1993).
But, in this case, the defendant did not submit
a multiple conspiracy instruction and we,
therefore, review the issue of whether the trial
court properly gave only a single conspiracy
instruction for plain error. See United States v.
Easley, 977 F.2d 283, 285-86 (7th Cir. 1992). In
order to establish plain error, Whitt must
demonstrate: 1) that error occurred; 2) that the
error was plain; and 3) that the error affected
his substantial rights. See Johnson v. United
States, 520 U.S. 461 (1997).
Whitt argues that the evidence does not support
a finding of a single conspiracy; rather, he
argues, the government presented evidence of
multiple conspiracies. Whitt claims that the
court’s failure to instruct the jury on multiple
conspiracies thus deprived him of his right to a
fair trial because the jury may have found him
guilty of a conspiracy separate from what was
charged in the indictment.
But, we have long held that
[w]hether a single conspiracy exists is a
question of fact; consequently "[t]he jury gets
first crack at deciding ’whether there is one
conspiracy or several when the possibility of a
variance appears.’" United States v. Paiz, 905
F.2d 1014, 1019 (7th Cir. 1990) (quoting United
States v. Percival, 756 F.2d 600, 609 (7th Cir.
1985)). This is because the jury’s verdict must
be interpreted as a finding that the government
presented sufficient evidence to prove its
indictment beyond reasonable doubt, and that is
all that we require of the prosecution. The fact
that the government’s evidence might also be
consistent with an alternate theory is
irrelevant; the law does not require the
government to disprove every conceivable
hypothesis of innocence in order to sustain a
conviction on an indictment proved beyond
reasonable doubt. United States v. Beverly, 913
F.2d 337, 361 (7th Cir. 1990); United States v.
Douglas, 874 F.2d 1145, 1152 (7th Cir. 1989).
Consequently, "even if the evidence arguably
establishe[d] multiple conspiracies, there [is]
no material variance from an indictment charging
a single conspiracy if a reasonable trier of fact
could have found beyond a reasonable doubt the
existence of the single conspiracy charged in the
indictment." United States v. Prince, 883 F.2d
953, 959 (11th Cir. 1989).
United States v. Townsend, 924 F.2d 1385, 1389
(7th Cir. 1991); see also United States v.
Magana, 118 F.3d 1173, 1188 (7th Cir. 1997).
Upon review of the record, we hold that,
contrary to the defendant-Whitt’s argument on
appeal, the evidence sufficiently supports the
jury’s finding of a single conspiracy.
Specifically, the record established a single
purpose, distributing controlled substances,
including cocaine, in the Northern District of
Indiana, to which Whitt, Ruby Lamb, Necole Lamb,
and Helen Jackson all were committed. The
evidence also demonstrates the manner in which
the common goal was met; that is, Whitt and Ruby
Lamb "stashed" and picked-up narcotics at Helen
Jackson’s house while Necole Lamb and others
acted as drug runners at the direction of Whitt
and Ruby. As cases like Townsend dictate, the
fact that other theories of criminal conduct may
also be supported by the record does not diminish
the fact that, in this case, the evidence fully
supported a single conspiracy instruction.
Whitt also complains that Necole Lamb testified
to events outside the conspiracy charged in the
indictment and that the jury may have therefore
based his conviction on criminal activity not
charged in the indictment. However, Whitt ignores
the fact that at the close of the evidence at
trial the judge instructed the jury that:
I want to instruct you, ladies and gentlemen,
that you have just heard evidence of the acts of
the defendant, other than those charged in the
indictment and specifically if you’ve been
following the dates here, they actually precede
the commencement of the alleged conspiracy which
was December of 1990. So you’ve just heard
testimony about certain acts of the defendant
that pre-date the opening of the conspiracy. You
may consider the evidence only on the question of
the relationship between the witness and the
defendant and others. This evidence is to be
considered by you only for this limited purpose.
(emphasis added). That is, the judge instructed
the jury that it was to consider any evidence
that pre-dated the opening of the conspiracy only
for the limited purpose of establishing the
relationship between the witness, the defendant,
and other relevant individuals, and the jury is
presumed to have followed the court’s limiting
instruction. See Doe v. Johnson, 52 F.3d 1448,
1458 (7th Cir. 1995) ("Jurors are presumed to
follow . . . instructions . . . .") (citations
omitted). Thus, the fact that Necole Lamb
testified about her involvement with Whitt prior
to the events alleged in the charged conspiracy
does not establish a separate conspiracy. See
Magana, 118 F.3d at 1188-89.
The record clearly supports a finding of a
single conspiracy. Furthermore, Whitt never
submitted a proposed multiple conspiracy
instruction. Thus, we are convinced that the
trial judge did not commit plain error in failing
to instruct the jury on multiple conspiracies.
B. The Trial Court’s Calculation of Drug
Quantity
On appeal, Whitt asserts that he is responsible
not for the 150 kilograms the sentencing judge
attributed to him, but rather for 3.5 kilograms
of cocaine. In so arguing, Whitt contends that
the judge erred because he relied upon testimony
which was unreliable and that the witnesses were
not credible.
However, the guidelines require that
When choosing the base offense level in a
narcotics case, the district court must take into
consideration not only the drug amounts involved
in the offense of conviction, but any that were
part of the same course of conduct or common
scheme or plan as the offense of conviction. This
Court reviews the sentencing court’s calculation
of the drug amount only for clear error. We must
be satisfied, however, that the calculation is
based on reliable evidence; speculation and
unfounded allegations will not do.
United States v. Pigee, 197 F.3d 879, 889 (7th
Cir. 1999) (internal citations and quotations
omitted)./11 Furthermore, "[w]e have
frequently held that the trial judge is in the
best position to judge the credibility of
witnesses who offer conflicting testimony
concerning the quantity of drugs attributable to
a defendant for purposes of sentencing." United
States v. Pitz, 2 F.3d 723, 727-28 (7th Cir.
1993); see also United States v. Mancillas, 183
F.3d 682, 701 n. 22 (7th Cir. 1999) ("We do not
second-guess the [trial] judge’s credibility
determinations because he or she has had the best
opportunity to observe the verbal and nonverbal
behavior of the witnesses focusing on the
subject’s reactions and responses to the
interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture
and body movements, as well as confused or
nervous speech patterns in contrast with merely
looking at the cold pages of an appellate
record." (citation omitted) (brackets in
original)), petition for cert. filed, No. 99-6626
(Oct. 18, 1999).
As previously discussed, the court’s opinion
explained in detail the facts that it relied on
to reach the 150 kilograms used at sentencing.
All of these facts were gleaned from testimony
which the sentencing judge deemed to be reliable
and credible; specifically Ruby testified that
she and Whitt purchased 15 to 20 kilograms of
cocaine on 30 different occasions between 1989
and 1991, accounting for well over 150 kilograms
of cocaine. Despite Whitt’s urging that this
court find the testimony of Ruby, Necole, and
Helen incredible, the fact remains that the judge
concluded, with full knowledge that Ruby had
suffered a nervous breakdown and that some of her
testimony was inaccurate, that her testimony
concerning the amount of cocaine was reliable and
accurate enough to hold Whitt responsible for in
excess of 150 kilograms of cocaine; the maximum
level under the guidelines./12 We know of no
convincing reason, nor has Whitt offered one, to
overturn the district court’s credibility
determinations. Thus, we hold that the court did
not commit clear error in determining that Whitt
was responsible for 150 kilograms of cocaine.
The decision of the district court is
AFFIRMED.
/1 Ruby and Helen are sisters and Necole is Ruby’s
daughter.
/2 Ruby received 24 years, Necole received 11
years, and Helen received 31 years.
/3 In exchange for their assistance, the government
filed Rule 35 motions for a reduction in sentence
on behalf of the three women.
/4 Necole testified that although she initially
began to work for the defendant as a "runner,"
she later got on the inside of the operation and
began to work directly with Whitt. Helen
testified that she managed a "stash house" for
the drug conspiracy at the request of the
defendant; a task for which she received $100 a
day. In addition to recruiting Helen and Necole,
Whitt also recruited Lavon Chandler (his sister),
John Starkes (his cousin), Samantha McCall,
Sherrie Hatch, and Kay Shelton into his
organization for the purposes of acquiring and
distributing controlled substances.
/5 During Whitt’s trial, the government introduced
Ruby’s drug ledger which demonstrated, according
to expert FBI testimony, that Whitt was
responsible for an additional three kilograms of
cocaine. The government therefore estimated that
Whitt was personally responsible for the
distribution of approximately 111 kilograms of
cocaine between June of 1990 and September of
1991. This was in addition to the 1.6 kilograms
of marijuana, the 262 grams of cocaine, and the
44.6 grams of heroin which was seized from his
residence.
/6 These buys occurred on May 15, June 6, June 7,
June 13, June 26, July 2, July 19, and September
3, 1991.
/7 The record does not reflect either how or why
this money was seized.
/8 The record does not reflect why the vehicle was
stopped.
/9 The government believes that this circumstantial
evidence demonstrates that the currency belonged
to the defendant-Samuel Whitt; and during the
sentencing hearing, the judge, based upon the
evidence presented, found that the currency
belonged to Whitt.
/10 Whitt also claims that the amount of drugs he is
to be held responsible for is a matter for the
jury. But because such an argument has
specifically been rejected on numerous occasions
by this court, see, e.g., United States v.
Jackson, 2000 WL 298575, at *9 (7th Cir. March
23, 2000), we decline to consider this issue any
further. See also United States v. Edwards, 523
U.S. 511, 513-14 (1998).
/11 Furthermore, a participant in a drug conspiracy
is accountable for the "reasonably foreseeable
quantities of contraband that were within the
scope of the criminal activity that he jointly
undertook." U.S.S.G. sec. 1B1.3, comment (n.2);
see also United States v. McEntire, 153 F.3d 424,
438 (7th Cir. 1998); United States v. Mumford, 25
F.3d 461, 465 (7th Cir. 1994).
/12 We note that Necole and Helen testified at
Whitt’s trial and that the jury also found their
testimony credible.