United States v. Jwuan Moreland , 703 F.3d 976 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JWUAN L. M ORELAND, A NTRIO B. H AMMOND,
W ESLEY S. H AMMOND, SUSIE A. S MITH,
H ERBERT D. P HIPPS, D AVID J. P ITTS,
B RADLEY S. S HELTON, M ICHAEL D. W EIR, and
T IMOTHY B AILEY,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:10-cr-00007-JMS-CMM-7, -6, -1, -19,
-14, -4, -5, -27, -18—Jane E. Magnus-Stinson, Judge.
A RGUED S EPTEMBER 28, 2012—D ECIDED D ECEMBER 3, 2012
Before P OSNER, R OVNER, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. The nine defendants were
charged with conspiracy to distribute large quantities of
methamphetamine and marijuana (two of them were
2 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
charged in addition with being felons in possession of
firearms). All were convicted by a jury and given long
prison sentences: Moreland 110 months, Smith 151,
Bailey 216, Pitts 420, and the others life. Only one de-
fendant, Shelton, was charged with a substantive
drug offense; this is a further illustration, if any is
needed, that conspiracy is indeed the prosecutors’ darling.
We listed the reasons in United States v. Nunez, 673
F.3d 661, 662-64 (7th Cir. 2012); see also Krulewitch v.
United States, 336 U.S. 440, 449, 457 (1949) (Jackson, J.,
concurring); United States v. Jones, 674 F.3d 88, 91 and n. 1
(1st Cir. 2012); United States v. Boidi, 568 F.3d 24, 29 (1st Cir.
2009); 2 Wayne R. LaFave, Substantive Criminal Law
§ 12.1(b), pp. 256-65 (2d ed. 2003)—though we add that a
prosecutor’s putting all his eggs in the conspiracy basket
can be a risky tactic, as we’ll see.
The details of the conspiracy are not important, so
we can proceed to the issues raised by the appellants.
We begin with the issues common to all of them. The
first concerns the government’s use of wiretap evidence.
That is permissible only if the government can show
that wiretapping was necessary to its investigation
because (so far as relates to this case) other investigative
methods, such as the use of undercover agents and infor-
mants, telephone records, pen registers, trap-and-trace
devices, the grand jury, physical searches, and physical
surveillance, would not yield essential evidence. 18
U.S.C. § 2518(1)(c). The government argues that without
the wiretaps the extent of the conspiracy—28 persons
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 3
11-3146, 11-3319, 11-3321, 11-3367
were charged ultimately—could not have been proved
and the leaders, who did not deal face to face with the
government’s informants or with the members of the
conspiracy whom the government was able to identify,
could not have been identified. See United States v. Ceballos,
302 F.3d 679, 683-84 (7th Cir. 2002); United States v.
Zambrana, 841 F.2d 1320, 1331 (7th Cir. 1988); United States
v. Foy, 641 F.3d 455, 464-65 (10th Cir. 2011); United States v.
Becton, 601 F.3d 588, 596 (D.C. Cir. 2010); United States v.
Jackson, 345 F.3d 638, 644-45 (8th Cir. 2003); United States v.
Rivera-Rosario, 300 F.3d 1, 19 (1st Cir. 2002). The govern-
ment supported its argument with detailed affidavits.
The defendants asked for an evidentiary hearing, but
the judge properly refused because they were unable to
specify any assertion in the government’s affidavits
that they could contest with evidence.
The defendants complain about the judge’s having
in advance of voir dire excused several potential jurors
who had notified the court that because of vacation
plans, business commitments, or employment obliga-
tions it would be a hardship for them to serve on a jury
in a case that might take a long time to try. In fact the
trial lasted three weeks. Prospective jurors were told at
the voir dire that it might last as long as five weeks, but
the jurors who before the voir dire asked to be excused
had been told only that they might be summoned for
jury duty at some time during the month in which
they would be on call. See United States District Court
for the Southern District of Indiana, “Federal Jury
4 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
Service Information: Stage 2: Notice of Jury Service,”
www.insd.uscourts.gov/Jury (visited Oct. 31, 2012).
Federal criminal defendants are entitled to be tried by
a jury “selected at random from a fair cross section of
the community,” 28 U.S.C. § 1861, a principle derived
by interpretation of the Sixth Amendment’s requirement
of an impartial jury. Berghuis v. Smith, 130 S. Ct. 1382,
1387 (2010). The defendants argue that excusing persons
who have vacation plans, business commitments, or
employment demands tilts the jury’s composition away
from the more affluent members of the community and so
makes jury selection unrepresentative. One doubts that
criminal defendants actually want to be judged by
members of the upper middle class, but in any event,
without some evidence of systematic exclusion of some
definable element of society (such as a racial or ethnic
group, but it could also be a group defined by income
or social class), the cross-section argument fails. Id. at
1388; Duren v. Missouri, 439 U.S. 357, 364-66 (1979);
United States v. Neighbors, 590 F.3d 485, 492 (7th Cir.
2009). Otherwise voir dire would become an interminable
sociological inquiry into how closely the social status of
the jury matched that of the adult population as a
whole from which the jurors had been drawn.
The defendants further argue that excluding busy
people from a jury violates the Jury Selection and Service
Act, 28 U.S.C. § 1862, which forbids exclusion from
juries on the basis of “economic status.” The concern
appears to have been with exclusion of the poor, H.R. Rep.
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 5
11-3146, 11-3319, 11-3321, 11-3367
No. 90-1076, 90th Cong., 2d Sess. (1968), reprinted at 1968
U.S.C.C.A.N. 1792, 1795, which is the opposite of the
complaint here; and anyway excusing a prospective
juror because of commitments is not exclusion on
account of economic status, though there may be a cor-
relation between affluence and commitments that are
incompatible with jury duty, depending on the expected
length of the trial. In any event, the defendants forfeited
the point by failing to comply with the procedures
for challenging compliance with the Act. See 28 U.S.C.
§ 1867; United States v. Phillips, 239 F.3d 829, 840-41 (7th
Cir. 2001).
The defendants also complain that excusing prospec-
tive jurors before the trial violated Fed. R. Crim. P. 43(a)(2),
which entitles the defendant to be present “at every
trial stage, including jury impanelment.” But issuance
of jury summonses, submission of responses to
those summonses in which the responders asked to be
excused, and action on those submissions—all before
the jury venire is created and the members of the venire
seated in the courtroom when the trial is called—precede
jury impanelment. Gomez v. United States, 490 U.S. 858,
874 (1989); United States v. Greer, 285 F.3d 158, 167-68
(2d Cir. 2002); Henderson v. Dugger, 925 F.2d 1309,
1316 (11th Cir. 1991); cf. Cohen v. Senkowski, 290 F.3d
485, 490 (2d Cir. 2002). Practicality dictates this conclu-
sion. For what if a recipient of a jury summons replied to
the court’s jury administrator that he was hospitalized
awaiting major surgery? Would the administrator’s
excusing him from jury service violate Rule 43? Anyway “a
6 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
general qualification of the jury is not a ‘critical stage’ in
the proceedings. The court was merely deciding which
jurors were to be excused for age, hardship, etc. It is
difficult to see what the defendant could have added to
this proceeding.” Henderson v. Dugger, supra, 925 F.2d at
1316.
Another issue common to all the defendants involves
expert testimony. A law enforcement officer was
permitted to testify as both a lay witness and an expert
witness, and the defendants complain that this was
improper. The witness, who was the DEA agent in
charge of the investigation of the conspiracy, was
called to testify about the meaning of code words used
in intercepted phone conversations of the defendants—
code words that he had learned the meaning of in the
course of investigating this very drug conspiracy and
code words commonly used in the drug trade that he
had learned the meaning of in other investigations.
About the first type of code word he was testifying from
personal knowledge obtained in the investigation,
and thus as a lay witness, Fed. R. Evid. 701, while about
the second type he was testifying as an expert on drug
codes, his expertise having derived from his involve-
ment in other drug investigations. Fed. R. Evid. 702. From
the investigation in this case he had learned that
the conspirators called methamphetamine “blue” (the
particular methamphetamine distributed by this con-
spiracy was tinted blue) and marijuana “green” or “scen-
ery.” But it was from past investigations that he
had learned that a “zipper” is an ounce of methamphet-
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 7
11-3146, 11-3319, 11-3321, 11-3367
amine and that “stepped on” means that a drug was cut
with adulterants to increase its weight and therefore (if
consumers don’t realize that its weight is attributable to
adulterants) its price. The agent testified about “zipper”
and “stepped on” as an expert witness, but as a lay
witness about the other code words used by the con-
spirators in this case.
The defendants argue that the jury may have been
overawed by the agent’s testimony about his long ex-
perience investigating drug conspiracies. The party
sponsoring an expert witness is entitled to lay his creden-
tials before the jury, but there is a danger that “the
jury might be smitten by an expert’s ‘aura of special
reliability’ and therefore give his factual testimony
undue weight.” United States v. York, 572 F.3d 415, 425
(7th Cir. 2008); see also United States v. Upton, 512 F.3d
394, 401 (7th Cir. 2008); United States v. Flores-De-Jesus,
569 F.3d 8, 20-21 (1st Cir. 2009). That was not a
realistic danger in this case. Had the agent been
testifying exclusively as a lay witness about the code
words he had learned the meaning of in the course of
his investigation of the defendants’ conspiracy, it
would not have been improper to introduce him to the
jury as an experienced investigator, rather than a
novice listening to taped conversations of drug conspira-
tors for the first time, any more than it is improper to
ask an eyewitness whether he has good vision.
“Seamlessly switching back-and-forth between ex-
pert and fact testimony does little to stem the risks associ-
8 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
ated with dual-role witnesses.” United States v. York,
supra, 572 F.3d at 426. Telling the jury that a witness is
both a lay witness and an expert witness and will be
alternating between the two roles is potentially confus-
ing—and unnecessary. The lawyer examining the witness
need only ask him the basis for his answer to a question,
and the witness will then explain whether it was
his investigation of the defendants’ conspiracy or his
general experience in decoding drug code. That tells
the jury what it needs to know in order to determine
how much weight to give the testimony and tells
opposing counsel what he needs to know in order to be
able to cross-examine the witness effectively. Using
terms like “lay witness” and “expert witness” and trying
to explain to the jury the difference between the two
types of witness is inessential and, it seems to us, ill
advised.
The judge, while allowing the prosecutor to elicit the
fact that the agent had been determined in previous
trials to be an expert on drug codes, told the jury that
“when you hear a witness give an opinion about
matters requiring special knowledge or skill, you
should judge this testimony in the same way that
you judge the testimony of any other witness. The fact
that such a person has given an opinion does not mean
you are required to accept it. Give the testimony
whatever weight you think it deserves, consider the
reasons for the opinion, the witness’s qualifications, and
all of the other evidence in the case.” That was an ap-
propriate instruction.
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 9
11-3146, 11-3319, 11-3321, 11-3367
We turn now to the issues specific to particular defen-
dants. We begin with Phipps’s complaint that he was
merely a buyer of meth from the conspiracy and not
a member of it. The government argues that since he
told his supplier, who was a member, that he was a
retail dealer, he must have agreed with the conspirators
to sell the drugs he bought from them to his retail cus-
tomers, and that by so agreeing he joined the conspiracy.
On three occasions (out of the six for which there is
evidence) the supplier “fronted” Phipps, that is, sold
to him on credit rather than for cash, implying trust
that the government argues would not have been
bestowed on someone who was not a member of the
conspiracy.
Phipps argues that he never agreed with the drug ring
to resell the drugs he bought from it even though both
parties knew that he probably would be reselling at least
some of them. He was a retail dealer. Reselling is
what retailers, legal or illegal, do. And wholesalers know
this. But knowledge of a buyer’s intention to commit
a crime with a supplier’s goods doesn’t imply an agree-
ment between the buyer and the seller that the buyer
do so. That knowledge, coupled with the supplier’s
having supplied the buyer with the means (in this case
a supply of drugs) of committing the illegal act of
retailing an illegal drug, could make him an aider and
abettor of the buyer’s crime but not, without more, a
conspirator with the buyer. United States v. Lechuga, 994
F.2d 346, 349 (7th Cir. 1993) (en banc) (plurality opinion);
United States v. Borelli, supra, 336 F.2d at 384; United
10 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940) (L. Hand,
J.); but cf. United States v. Boidi, supra, 568 F.3d at 29-30;
United States v. Parker, 554 F.3d 230, 236, 238-39 (2d Cir.
2009). Conspiracy is agreement, and it takes two to
agree. “A person who sells a gun knowing that the
buyer intends to murder someone may or may not be
an aider or abettor of the murder, but he is not a con-
spirator, because he and his buyer do not have an agree-
ment to murder anyone.” United States v. Lechuga, supra,994 F.2d at 349. If Phipps’s supplier was indifferent to
Phipps’s intended use for the drugs, even if he knew that
it was to resell them, he is merely an aider and abettor
of Phipps’s retail sale of illegal drugs and there was
no conspiracy between them.
Not only is a sale by a wholesaler to a retailer con-
sistent with an arms’ length relationship rather than
being proof of a conspiracy to resell the drugs; repeated
transactions between a seller and a buyer are likewise
consistent with such a relationship. United States v. Colon,
549 F.3d 565, 568-69 (7th Cir. 2008) (“if you buy from Wal-
Mart your transactions will be highly regular and
utterly standardized, but there will be no mutual trust
suggestive of a relationship other than that of buyer and
seller”); United States v. Askew, 403 F.3d 496, 503 (7th Cir.
2005); United States v. Thomas, 150 F.3d 743, 745 (7th Cir.
1998) (per curiam). Neither selling in bulk nor repeat
transactions distinguish a conspiracy involving whole-
sale and retail sales from an arms’ length relationship
between a wholesaler and a retailer, either in the market
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11
11-3146, 11-3319, 11-3321, 11-3367
for illegal drugs or in markets for legal products and
services.
In United States v. Nunez, supra, 673 F.3d at 664,
we suggested that the line might be drawn “between
‘contract’ conceived of as a purely arm’s-length relation-
ship and ‘conspiracy’ conceived of as a cooperative rela-
tionship—a relationship of mutual assistance.” See
also United States v. Speed, 656 F.3d 714, 719 (7th Cir.
2011); United States v. Townsend, 924 F.2d 1385, 1392
(7th Cir. 1991). Pursuing that line of thought we distin-
guished between a spot contract, illustrated by a trade
on a stock exchange, involving a minimal relationship
because there is only the single transaction and the
parties may not even be identified to each other, and
the aptly named “relational contract,” such as a long-
term requirements contract, which creates a continuing
relationship flexible enough to adapt to changes of cir-
cumstance that could not have been fully anticipated
when the contract was negotiated. See Charles J. Goetz &
Robert E. Scott, “Principles of Relational Contracts,” 67 Va.
L. Rev. 1089, 1092-95 (1981). So one way to understand
a drug conspiracy would be as a relational contract
among drug dealers. See United States v. Lechuga, supra,994 F.2d at 349. But Phipps negotiated each meth pur-
chase from the drug ring separately. The ring did not
agree to supply Phipps with all his requirements of meth.
A variant or perhaps application of the relational-con-
tract approach is to infer conspiracy from a sale on credit
of illegal drugs in a quantity too great to be for personal
12 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
consumption. For then the wholesaler relies on his ex-
pectation that the retailer will repay the loan by com-
mitting the crime of selling the illegal drugs that he’s
acquired, unless he thinks the buyer may not resell the
drugs after all and instead repay the loan from some
other source of income; maybe he is a “bulk pur-
chaser . . . planning to throw a huge party at which he
would serve his guests cocaine.” United States v. Lechuga,
supra, 994 F.2d at 348. But that would be a very rare case.
Since the creditor of an illegal business cannot sue
his debtor, extending credit to him implies a significant
degree of trust by the creditor-seller and a commitment
by the debtor-buyer to resell the drugs so that he’ll
have revenue from which to repay his creditor. United
States v. Nunez, supra, 673 F.3d at 665. As explained
in United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th
Cir. 2000), “a dealer who ‘fronts’ drugs to his customer
depends for payment on the success of the resale
venture, making it possible to infer that the dealer has
agreed to participate in it: the dealer becomes at least a
debt investor in the redistribution venture, if not an
equity investor.” The parties have agreed to the resale
of the drugs, and agreement to commit a criminal act is
a criminal conspiracy.
This approach, which infers conspiracy from wholesale
sales on credit, can be found in numerous cases in this
and other circuits (though usually it’s presented as an
instance in which two factors of a multifactor test for
inferring a drug conspiracy—wholesales and credit—are
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 13
11-3146, 11-3319, 11-3321, 11-3367
present and suffice to satisfy the test). See, e.g., United
States v. Vallar, 635 F.3d 271, 286-87 (7th Cir. 2011); United
States v. Johnson, 592 F.3d 749, 756 n. 5 (7th Cir.
2010); United States v. Avila, 557 F.3d 809, 816 (7th Cir.
2009); United States v. Colon, supra, 549 F.3d at 568-
70; United States v. Rock, 370 F.3d 712, 714-15 and n. 1 (7th
Cir. 2004); United States v. Ferguson, 35 F.3d 327, 331
(7th Cir. 1994); United States v. Kozinski, 16 F.3d 795, 808
(7th Cir. 1994); United States v. Lechuga, supra, 994 F.2d
at 349-50; United States v. Parker, supra, 554 F.3d at 238-39.
The approach is a stripped-down alternative to the
loose collections of factors explored in other conspiracy
cases; in United States v. Nunez, supra, 673 F.3d at 666,
we called it “a welcome simplification of doctrine” prefera-
ble to “trying to distinguish contract from conspiracy on
the basis of ‘plus’ factors that seem mostly makeweights,
such as mutual trust when it is just an inference from
sales on credit.” Our court and, again, other courts as
well have expressed concern with the looseness of
multifactor tests in other contexts. See Marrs v. Motorola,
Inc., 577 F.3d 783, 788-89 (7th Cir. 2009); Menard, Inc. v.
Commissioner, 560 F.3d 620, 622-23 (7th Cir. 2009); Monge v.
Maya Magazines, Inc., 688 F.3d 1164, 1171 (9th Cir. 2012);
Barton v. U.S. District Court, 410 F.3d 1104, 1108-09 (9th
Cir. 2005); USAir, Inc. v. Dept. of Transportation, 969 F.2d
1256, 1263 (D.C. Cir. 1992). They are to be avoided
if possible.
But the government, preferring a laundry list of factors
indicative of conspiracy, does not argue for what we’ll call
the Nunez-Torres approach. It does cite United States v.
14 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
Johnson, supra, 592 F.3d at 755-56, but fails to mention
footnote 5 of the opinion, the only place in it where
the Nunez-Torres approach is actually articulated.
The quantity of meth sold to Phipps over a four-month
period—five to twelve ounces—doesn’t by itself establish
that his supplier knew that Phipps would be reselling
the meth rather than consuming it himself and relied on
that knowledge in deciding to sell to him on credit. Each
ounce of meth would have supplied at least 75 doses.
United States v. Cruz, 680 F.3d 1261, 1262 (10th Cir. 2012);
United States v. Pruett, 501 F.3d 976, 985 (8th Cir. 2007),
vacated on other grounds, 552 U.S. 1241 (2008); United
States v. Ruiz, 412 F.3d 871, 878 (8th Cir. 2005). But that
means that five ounces of meth might yield only 375
doses, which is three a day over a four-month period (or
even fewer if some is stored for later use). There was
testimony that a meth addict consumes up to 1.5 grams
a day, which would mean that one ounce would supply
the addict’s needs for only 18 days, and five ounces for
90 days—three months rather than four. Phipps was a
dealer but also a serious meth addict, so it’s possible that
he could have consumed all the drugs he bought. He
sometimes fell behind on paying for the meth that he
obtained on credit, and his supplier, in contemplating
further drug loans, worried that Phipps might instead
consume the meth and that the payments from his con-
struction business (his day job) would fail to materialize or
be diverted by him to the purchase of additional drugs
for consumption. It’s possible therefore that Phipps was
just an unreliable purchaser from the conspiracy rather
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 15
11-3146, 11-3319, 11-3321, 11-3367
than a member of it. The government was skating on thin
ice by failing to charge him with a substantive drug
offense, for which the evidence was much stronger,
rather than just with conspiracy.
Nevertheless his conviction must stand. The jury
heard evidence that he indeed sold as well as consumed
meth that he bought from the drug ring in quantity on
credit. He was recorded asking his supplier for multiple
ounces of meth on credit and seeking to assuage the
supplier’s fears about his creditworthiness by assuring
him that he could resell it quickly to his customers, and
he mentioned having done so in the past. At trial he
testified that this was a ruse to obtain a large quantity
of meth for his personal use, but the jury didn’t have
to believe him.
The jury instructions were repetitive and confusing,
and included an open-ended list of factors from which
membership in a conspiracy could be inferred: “whether
the transactions involved large quantities of controlled
substances; whether the parties had a standardized way
of doing business over time; whether the parties had a
continuing relationship; whether a defendant had a
stake in the outcome of the conspiracy; whether the
parties had an understanding that the controlled sub-
stances would be resold; whether there existed a level
of mutual trust between the parties; [and] any other
factor you find relevant to your determination.” Notice
that the list includes wholesaling but not credit, except
that the last item in the list could include anything.
(This circuit’s recently amended pattern jury instruc-
16 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
tions disapprove the laundry-list approach to inferring
conspiracy. Seventh Circuit Pattern Jury Instructions 5.10A,
Committee Comment, pp. 73-74 (2012); see also United
States v. Johnson, supra, 592 F.3d at 758; United States v.
Colon, supra, 549 F.3d at 570-71.) But in addition the
judge instructed the jury that it could infer conspiracy
from “selling large quantities of controlled substances
on credit,” or “repeatedly selling controlled substances on
credit.” Of course Phipps did not sell on credit; he was
the buyer. But the jury could find that he knew that
his supplier would not sell him wholesale quantities
of drugs on credit unless he agreed to resell them, and
by thus agreeing with his supplier to commit a crime
(the resale of the illegal drugs) he became a conspirator.
Weir, a defendant who like Phipps was a retail dealer
prosecuted only for conspiracy, complains mainly about
the seizure of $6655 in cash found during a pat-down
search following a police stop of a car in which he was
a passenger, and subsequent testimony that the cash
was proceeds of a drug sale. The police had stopped the
car for a minor infraction—Weir’s failure to wear his
seatbelt—and discovered that the driver had no docu-
mentation of the car’s registration or insurance and only
an “open title” to the car, meaning that the previous
owner had by signing the title relinquished ownership.
And the license plates were registered to a different
vehicle. There was no indication of who the new owner
was, but it probably wasn’t the driver.
The police made Weir step out of the car and patted
him down—which was not improper, Arizona v. Johnson,
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 17
11-3146, 11-3319, 11-3321, 11-3367
555 U.S. 323, 331-32 (2009)—and discovered in one of his
pockets a wad of bills and seized it. At trial Weir’s girl-
friend (the driver, who testified as a government
witness in exchange for a lighter sentence) testified
that the bills were indeed proceeds of a sale of drugs
by him.
Weir argues that the seizure of the money violated the
Fourth Amendment. At the time of the stop he was not
suspected of any crime, and the mere fact of having
thousands of dollars in cash on one’s person has been
held not to justify a seizure of it as suspected contraband
or evidence of crime. United States v. Sokolow, 490 U.S. 1, 8-
9 (1989); United States v. $10,700.00 in U.S. Currency, 258
F.3d 215, 232 (3d Cir. 2001); United States v. $405,089.23
in U.S. Currency, 122 F.3d 1285, 1290 (9th Cir. 1997);
United States v. $67,220.00 in U.S. Currency, 957 F.2d 280,
285 (6th Cir. 1992). Law-abiding people sometimes carry
large amounts of cash on their person; this is thought to
be common enough to require evidence connecting the
cash to a crime to establish probable cause for seizing
the cash. See United States v. Hernandez-Rivas, 348 F.3d 595,
599 (7th Cir. 2003); United States v. Cervantes, 19 F.3d
1151, 1153 (7th Cir. 1994); United States v. Bustos-Torres,
396 F.3d 935, 944-45 (8th Cir. 2005).
Two members of the conspiracy—the girlfriend and the
supplier—testified that Weir was a drug dealer. But the
testimony about the $6655 found on him may have
carried special weight with the jury; that Weir had
been carrying that amount of money was an undenied
18 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
and undeniable fact rather than something the pair of
criminals who testified against him might have
fabricated to get lenient treatment by the authorities.
Whether the testimony about the cash was the
difference between conviction and acquittal of Weir is
very doubtful, however, and in any event his lawyer
failed to object. Because he did not object the govern-
ment had no opportunity to present evidence that the
seizure was a reasonable incident of the stop of the car.
The driver as we said had no proof of ownership, and
in fact the car had been reported stolen, as the police
discovered in the course of the traffic stop. They thus
had probable cause to believe that Weir was traveling
in a stolen car, and it was a reasonable surmise that
the large amount of cash found on him was related
in some way to the theft.
In any event, the seizure of the money was inevitable.
The police impounded the car, as they were entitled
to do since the driver lacked proof of owning it or
otherwise being authorized to be driving it, and after im-
pounding the car they conducted a routine, unexception-
able inventory search that revealed the presence in the
car of digital scales, commonly used by drug dealers.
The scales (which were introduced in evidence at the
trial) would have also given the police probable cause
to believe that the cash they had seized was indeed
drug proceeds.
As with Phipps, however, so with Weir, there is doubt
whether he was a member of the conspiracy. Like Phipps
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 19
11-3146, 11-3319, 11-3321, 11-3367
he bought an ounce or two of meth at a time, sometimes
paying in cash and sometimes on credit. He argues that
he “did not conspire with anyone. He bought drugs in
order to feed his own addiction. He sold some of those
same drugs that he bought to get money to buy the
drugs to feed his habit. . . . [H]e was not a conspirator.” But
as with Phipps, there was evidence that he purchased
wholesale quantities of drugs on credit, agreeing to
resell them in order to be able to repay his creditor.
Together with the other defendants who received
life sentences as repeat drug offenders, 21 U.S.C.
§ 841(b)(1)(A), Weir complains that his life sentence was
a cruel and unusual punishment. He argues that as a
drug addict he belongs in a treatment facility rather
than having to spend the rest of his life in prison. (The
other defendants who received life sentences acknowl-
edge controlling authority for the legality of their
sentences in such decisions as Ewing v. California, 538
U.S. 11, 25 (2003); Harmelin v. Michigan, 501 U.S. 957, 994-
95 (1991); United States v. Speed, 656 F.3d 714, 720 (7th
Cir. 2011), and United States v. Strahan, 565 F.3d 1047, 1052-
53 (7th Cir. 2009), and so reserve rather than argue their
objections to their sentences.)
The sentencing guidelines recognize that criminals
addicted to drugs are at risk for recidivism induced
by their need to feed their habit. But the guidelines’
suggested solution to the problem is for the judge to
extend the post-incarceration period of supervised release,
rather than to shorten the sentence. U.S.S.G. § 5H1.4;
20 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
United States v. Tazhib, 513 F.3d 692, 693-94 (7th Cir. 2008);
United States v. Williams, 937 F.2d 979, 983 (5th Cir.
1991), overruled on other grounds by United States v.
Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en banc). Concern
that addiction makes recidivism more likely is an
argument for treating the addiction rather than for
giving the defendant a shorter sentence, something
the guidelines therefore discourage. U.S.S.G. § 5H1.4
(“drug . . . dependence or abuse ordinarily is not a
reason for a downward departure”); United States v.
Ramirez-Gutierrez, 503 F.3d 643, 646-47 (7th Cir. 2007);
United States v. Wurzinger, 467 F.3d 649, 654 (7th Cir.
2006). It is rightly discouraged; anything that increases
the risk of recidivism argues for a longer sentence.
Defendant Moreland was convicted only of being a
felon in unauthorized possession of a gun. He complains
about the judge’s having mistakenly read to the jury a
set of instructions containing a copy of the indictment
that included a list of his felonies—despite his having
stipulated that he was a felon in order to keep the
details of his prior convictions from the jury. See Old
Chief v. United States, 519 U.S. 172 (1997).
The judge had given the jurors a copy of the jury instruc-
tions containing the indictment before the closing argu-
ment so that the lawyers could refer the jurors to
specific language and they could read along. Through a
slip-up the version of the jury instructions placed on the
jurors’ seats in the jury box when they convened to hear
the closing arguments contained the original indict-
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 21
11-3146, 11-3319, 11-3321, 11-3367
ment rather than a version from which the record of
Moreland’s prior felonies had been excised. The closing
arguments lasted two days. The trial recessed for the
weekend and when the jury reassembled on Monday
the judge read them the unredacted instructions. After
reading the portion of the indictment that recited More-
land’s prior felony convictions, the judge realized her
mistake, collected the instructions, and gave the jurors
new copies containing the redacted indictment to take
back with them to the jury room for their deliberations.
As the evidence of Moreland’s guilt was over-
whelming, the error in revealing his previous felonies to
the jury was harmless—and for the additional reason
that those felonies (multiple drug-related felonies,
resisting law enforcement, criminal recklessness, and
receipt of stolen property) did not mention guns. This
implies that had the jury been poisoned by learning of
Moreland’s crimes it would have convicted him of the
drug conspiracy rather than of the gun crime. Instead
it acquitted him of the former and convicted him of
the latter.
Defendant Antrio Hammond makes the same argu-
ment as Moreland, but unlike Moreland he was
convicted of participating in the drug conspiracy, and so
the listing in the indictment of his prior felonies, which
were drug-related, created a greater risk than in More-
land’s case that the jury may have convicted him
because he had demonstrated a propensity for com-
mitting drug crimes. But the evidence that he was a
22 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
central player in the conspiracy charged in this case was
overwhelming. The judge never read his prior felonies
to the jury, moreover, as she had done with Moreland’s
prior felonies, and there is no indication that any juror,
reading ahead in the indictment, discovered the nature
of Hammond’s prior felonies before the judge con-
fiscated the unredacted version of the indictment.
Hammond’s lawyer asked the judge to voir dire the
jury to determine whether any jurors had read that
version. The judge rightly refused, given the unlikelihood
that any juror had read ahead and discovered the
felonies and the concern that asking the jurors whether
they had done so might make them think that the judge
or the lawyers were trying to hide something impor-
tant—some key part of the indictment—from them. Cf.
United States v. Reynolds, 189 F.3d 521, 527-28 (7th Cir.
1999); United States v. Magana, 118 F.3d 1173, 1184-85
(7th Cir. 1997); United States v. Williams, 822 F.2d 1174,
1189 (D.C. Cir. 1987).
Bradley Shelton received a sentencing enhancement
for possessing a gun in connection with a drug offense.
U.S.S.G. § 2D1.1(b)(1). “Possession” and “connection” can
be tricky, see, e.g., United States v. Morris, 977 F.2d 617, 621-
23 (D.C. Cir. 1992), but not in this case. Shelton told
his sister—who had noticed police activity outside her
home, where two months earlier Shelton had delivered
meth to a customer—to conceal a gun along with drugs
in the false ceiling of her residence. (A false or dropped
ceiling is a secondary ceiling hung below the structural
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 23
11-3146, 11-3319, 11-3321, 11-3367
ceiling, and it creates a space in which an object can be
concealed, although that is not the usual purpose—the
usual purpose is to conceal pipes or other equipment,
improve acoustic balance or ventilation, or enhance a
room’s interior design.) Shelton owned the gun, had
access to the house and the gun, and thus possessed it
even though it wasn’t in his physical custody at all
times, United States v. Perez, 581 F.3d 539, 546 (7th Cir.
2009); United States v. Bothun, 424 F.3d 582, 586 (7th
Cir. 2005), just as one possesses one’s refrigerator even
when one is not in one’s kitchen. And Shelton
possessed the gun in connection with his role in the
drug conspiracy, of which he was a continuing
member, never having withdrawn from it. United States v.
Womack, 496 F.3d 791, 797-98 (7th Cir. 2007); United
States v. Corral, 324 F.3d 866, 873 (7th Cir. 2003);
United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997).
He attacks his life sentence on the ground that the
prior drug felonies that qualified him for such a sentence
were not separate criminal episodes, as 21 U.S.C.
§ 841(b)(1)(A) has been glossed to require. United States
v. Arreola-Castillo, 539 F.3d 700, 705 (7th Cir. 2008);
United States v. Beckstrom, 647 F.3d 1012, 1017 (10th Cir.
2011); United States v. Powell, 404 F.3d 678, 682 (2d Cir.
2005); United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997);
United States v. Rice, 43 F.3d 601, 605-06 (11th Cir. 1995).
The first felony was the sale of Xanax to a confidential
informant, the second, a day later, possession of marijuana
found when Shelton was arrested for the Xanax sale, and
the third, six days later, also possession of marijuana, this
24 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
time while he was in jail. The first and second offenses
clearly were separate from each other; they involved
different drugs possessed on different days. See, e.g.,
United States v. Beckstrom, supra, 647 F.3d at 1018; United
States v. Fink, 499 F.3d 81, 88 (1st Cir. 2007); United States
v. Gray, 152 F.3d 816, 821 (8th Cir. 1998). But the
second and third offenses—the marijuana offenses—may
not have been separate. The marijuana found in his cell
may have been on his person when he was arrested for
selling Xanax and may just have been missed in the
initial search. He contends that had the police done a
more careful search when they arrested him they
would have found it all, and so there would have been
only one offense of possession of marijuana. A careless
police search should not increase a defendant’s sentence.
But if the second marijuana offense is therefore ignored,
Shelton still has two prior drug felonies (one for selling
Xanax, one for possessing marijuana), and 21 U.S.C.
§ 841(b)(1)(A) imposes a mandatory life sentence on
a defendant who has been convicted of two or more
previous drug felonies.
Finally, defendant Smith, given a sentencing discount
as a minor participant, argues that she qualified as a
minimal participant, which by knocking two additional
levels off her base offense level would have reduced her
guidelines range of 151-188 months to 121-151 months. See
U.S.S.G. § 3B1.2, Application Notes 4 and 5. The judge
sentenced her at the bottom of the minor-participant
range, that is, to 151 months. Her argument for a minimal-
Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 25
11-3146, 11-3319, 11-3321, 11-3367
participant discount is frivolous; the minor-participant
discount that she received was a gift—and quite a
large one, as it effectively halved her guidelines range,
from 292-365 months to 151-188 months—to which she
was not entitled (for she was in fact a major participant),
although the government has not cross-appealed.
A minimal participant is a “defendant who [is] plainly
among the least culpable of those involved in the conduct
of a group.” U.S.S.G. § 3B1.2, Application Note 4. Smith
stored large quantities of meth and money at her
residence (a police search recovered nearly $81,000 from
a safe) and had firearms to defend the stash in aid of
the drug conspiracy of her sons Wesley and Antrio
Hammond. She assisted them in deliveries of meth and
the collection of sale proceeds. She discussed with
Wesley in jail delivering guns to enable the conspiracy to
intimidate a rival gang. She relayed to him news that
Timothy Bailey, a co-conspirator, had been arrested, and
she warned Wesley not to try to call Bailey on his
cellphone because the police probably had seized
the cellphone and would answer it if it rang.
Smith asks for mercy mainly because of the family
relationship, though she also cites her age (59) and ill
health (one of her kidneys has been removed because of
cancer). United States v. Powell, 576 F.3d 482, 499 (7th Cir.
2009); United States v. Theunick, 651 F.3d 578, 592 (6th Cir.
2011). She lacks a compelling case under either the guide-
lines or the sentencing factors in 18 U.S.C. § 3553(a)
for leniency on either count. The guidelines provide
26 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,
11-3146, 11-3319, 11-3321, 11-3367
a discount for “familial relationships,” U.S.S.G.
§ 2D1.1(b)(15)(A), but it is limited to defendants
who receive a minimal-participant discount, as she did
not; and such a discount is anyway inappropriate for a
mother actively engaged with her adult sons in felonious
conspiracies. As for age and infirmity (see 18 U.S.C.
§ 3553(a)(2)(D); U.S.S.G. §§ 5H1.1, 5H1.4), age 59 is not
elderly in our society; the elderly do not have a license
to commit crime, United States v. Johnson, 685 F.3d 660,
662 (7th Cir. 2012); and adequate medical care is
available in federal prisons. United States v. Theunick, supra,651 F.3d at 592.
The judgments are
A FFIRMED.
12-3-12