United States v. Bolden, Charles

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2340
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
CHARLES BOLDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98-CR-936-1--George W. Lindberg, Judge.
ARGUED DECEMBER 11, 2001--DECIDED January 31, 2002
Before BAUER, RIPPLE and ROVNER, Circuit
Judges.
RIPPLE, Circuit Judge. Charles Bolden
was charged in a three-count indictment
with conspiracy to distribute cocaine and
possession of cocaine with intent to
distribute. Mr. Bolden was convicted on
all three counts at a bench trial. At
sentencing, the district court adjusted
Mr. Bolden’s offense level upward by two
levels for obstruction of justice. Mr.
Bolden now challenges both his conviction
for drug conspiracy and the upward
adjustment. For the reasons set forth in
the following opinion, we affirm
thejudgment of the district court.
I
BACKGROUND
A. Facts
In December 1998, Nathaniel Nettles-Bey,
an acquaintance of Mr. Bolden, became an
informant for the Drug Enforcement
Administration (DEA). Nettles-Bey
informed the DEA that he knew of an
individual who would sell him cocaine. On
December 15, 1998, in cooperation with
the DEA, Nettles-Bey arranged to buy
cocaine from Mr. Bolden at the home of
Marcus Davis in Blue Island, Illinois.
DEA Special Agents Daniel Foley and
Robert Glynn conducted surveillance of
Davis’ home on the morning of December
16. Mr. Bolden, Nettles-Bey and Davis met
inside Davis’ house. After Mr. Bolden
left Davis’ house, Nettles-Bey met with
Agent Foley and gave him a package
containing approximately one kilogram of
cocaine which he said he had received
from Mr. Bolden. Agent Glynn followed Mr.
Bolden by car to Harvey, Illinois, where
he stopped Mr. Bolden and arrested him.
B. District Court Proceedings
Mr. Bolden was charged with one count of
conspiring to distribute in excess of
five kilograms of cocaine, in violation
of 21 U.S.C. sec.sec. 846 and 841(a)(1),
and two counts of possession with intent
to distribute in excess of 500 grams and
two kilograms of cocaine, respectively,
in violation of 21 U.S.C. sec. 841(a)(1).
Mr. Bolden’s trial was set for July 12,
1999. Mr. Bolden, however, failed to
appear, and a bench warrant was issued.
The trial ultimately commenced more than
two months later. Mr. Bolden waived his
right to a jury trial. At the bench
trial, the government presented testimony
from Marcus Davis and Agents Foley and
Glynn.
Davis testified that he met with Mr.
Bolden at Doghouse Records, a record
store managed by Mr. Bolden. Davis asked
Mr. Bolden if he was still "in the game,"
a reference to the sale of cocaine. Tr.
of Sept. 27, 1999, at 70. Mr. Bolden told
Davis that he was still "in the game" and
asked him to "give me a call if you know
somebody want to get something." Id.
Davis subsequently asked Nettles-Bey if
he knew anyone who wanted to buy cocaine.
A few days later, Nettles-Bey called
Davis and asked him to contact his
cocaine source. Davis then told Mr.
Bolden that his "cousin," meaning
Nettles-Bey, wanted to "get something."
Id. at 71.
Davis further testified that he arranged
a meeting between himself, Mr. Bolden and
Nettles-Bey at his home. When Mr. Bolden
arrived at Davis’ home, he gave Nettles-
Bey a plastic bag containing a package
wrapped in duct tape. Nettles-Bey
examined the package, which contained a
white powder, and then paid Mr. Bolden.
Davis, the middle-man, received $500 from
Mr. Bolden when Nettles-Bey told him that
he wanted to buy two more grams of
cocaine. Davis scheduled another meeting
with Mr. Bolden at Davis’ home.
According to Davis, Mr. Bolden came to
Davis’ home on December 16 and gave
Nettles-Bey a large detergent box. After
Mr. Bolden left Davis’ house, Nettles-Bey
removed two packages from the box, placed
one in a closet and placed the other back
in the box./1
DEA Agent Foley testified that he
observed Mr. Bolden arrive at Davis’
house on December 16 and enter carrying a
large detergent box. After the meeting
was over and Mr. Bolden drove away,
Nettles-Bey met with Agent Foley and gave
him the detergent box. Agent Foley found
a package containing approximately one
kilogram of cocaine inside.
Agent Glynn testified that he followed
Mr. Bolden by car to Harvey, Illinois,
after Mr. Bolden left Davis’ home. When
Agent Glynn was informed by other DEA
agents that Nettles-Bey had received a
kilogram of cocaine from Mr. Bolden,
Agent Glynn stopped Mr. Bolden and
arrested him. Agent Glynn stated that he
read the Miranda warnings to Mr. Bolden,
who agreed to speak with him. According
to Agent Glynn, Mr. Bolden admitted that
he had just delivered two kilograms of
cocaine in a detergent box to Davis and
another individual and that he had
delivered two kilograms to the same
individuals two or three weeks earlier.
Agent Glynn told the court that the
package containing the second kilogram of
cocaine was recovered from Davis’ house
later that afternoon.
Agent Glynn also testified that Mr.
Bolden admitted that he obtained about
six to seven kilograms of cocaine per
month from his supplier, Ivan Eberhardt,
and that he had been engaged in business
with him for about a year. Cooperating
with the DEA, Mr. Bolden contacted
Eberhardt to arrange a meeting. Agent
Glynn testified that he observed Mr.
Bolden meet with Eberhardt on the
following day, December 17. The
Government and Mr. Bolden stipulated to
the admission into evidence of phone
records documenting calls between Mr.
Bolden and Eberhardt.
After considering the evidence presented
at trial, the court found Mr. Bolden
guilty. Mr. Bolden was convicted on one
count of conspiracy to distribute cocaine
and two counts of possessing cocaine with
intent to distribute. The court adjusted
Mr. Bolden’s offense level upward by two
levels for obstruction of justice because
of his failure to show up for his
original trial date. Mr. Bolden objected
to the upward adjustment, arguing that
there was no proof that his failure to
appear had been willful. The court
overruled his objection. The district
court sentenced Mr. Bolden to a term of
168 months on the conspiracy count and
two terms of 60 months for the two
possession counts to be served
concurrently with each other and with the
conspiracy sentence.
II
DISCUSSION
A.
Mr. Bolden submits that his conspiracy
conviction should be reversed because of
insufficient evidence. We must uphold a
conviction if any reasonable factfinder
could have found the essential elements
of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Menting, 166
F.3d 923, 928 (7th Cir. 1999).
Overturning a verdict is appropriate only
when the record contains no evidence,
regardless of how it is weighed, from
which a factfinder could determine guilt
beyond a reasonable doubt. United States
v. Granados, 142 F.3d 1016, 1019 (7th
Cir. 1998). To convict Mr. Bolden of
conspiracy, the Government needed to
prove that a conspiracy existed and that
Mr. Bolden knowingly joined it. United
States v. Pagan, 196 F.3d 884, 889 (7th
Cir. 1999).
Mr. Bolden submits that his confession
was the sole evidence supporting his
conspiracy conviction. We cannot accept
this argument. The district court had
before it not only Mr. Bolden’s
confession but also the testimony of
Davis and of the DEA surveillance agents
who had observed Mr. Bolden meet with
Davis and with Eberhardt. The Government
and Mr. Bolden also stipulated to the
admission of telephone records that
evidenced calls made by Mr. Bolden to his
cocaine supplier.
Mr. Bolden contends, however, that all
the evidence presented against him at
trial, with the exception of his
confession, supported only the charges of
possession with intent to distribute and
not the conspiracy count. This argument
has no merit. Much of the evidence
presented at trial supported both the
charges of possession with intent to
distribute and the conspiracy count.
Davis testified not only that Mr. Bolden
distributed cocaine to Nettles-Bey, but
also admitted that he conspired with Mr.
Bolden to distribute the cocaine and
received payment for his services as
middle-man. Likewise, Agent Foley’s
surveillance of Mr. Bolden revealed not
only that Mr. Bolden distributed cocaine
to Nettles-Bey, but also that Davis was
present during these transactions which
took place at Davis’ home. Agent Foley’s
version of events was consistent with
Davis’, and the testimony of both
witnesses established that Mr. Bolden
conspired with Davis to distribute
cocaine to Nettles-Bey. Furthermore,
Agent Glynn’s observation of a
meetingbetween Mr. Bolden and Eberhardt,
who supplied his cocaine, established not
only that Mr. Bolden intended to
distribute cocaine, but that he conspired
with his cocaine supplier to do so.
Finally, the telephone records that
document communication between Mr. Bolden
and Eberhardt further substantiated the
existence of a conspiracy. This evidence
taken together provided a sufficient
basis for the district court to find Mr.
Bolden guilty beyond a reasonable doubt
of conspiracy, as well as possession with
intent to distribute.
Mr. Bolden also objects strenuously to
the sufficiency of the evidence used to
establish the quantity of cocaine
involved in the conspiracy. The
Government relied upon Mr. Bolden’s
confession to establish that he conspired
to distribute more than five kilograms.
Mr. Bolden argues that his confession,
standing alone, was insufficient evidence
to establish the quantity of cocaine at
issue here. Drug quantity, however, is
not an element of the offense of
conspiracy to distribute. See 21 U.S.C.
sec. 846; United States v. Hill, 252 F.3d
919, 922 (7th Cir. 2001). In Mr. Bolden’s
case, drug quantity was relevant only to
sentencing, not to the determination of
guilt. See id.B.
Mr. Bolden also challenges the
sentencing court’s upward adjustment of
his offense level for obstruction of
justice. The determination that a
defendant obstructed justice is a finding
of fact, which this court reviews for
clear error. United States v. Stokes, 211
F.3d 1039, 1044 (7th Cir. 2000). If a
sentencing judge finds that a defendant
has obstructed justice, the judge shall
increase the offense level by two levels.
U.S.S.G. sec. 3C1.1; Stokes, 211 F.3d at
1045. "Willfully failing to appear, as
ordered, for a judicial proceeding" is an
example of obstructive conduct that will
justify such an upward adjustment.
U.S.S.G. sec. 3C1.1, application note
4(e). This court reviews interpretations
of terms used in the sentencing
guidelines, such as "willful," de novo.
United States v. Teta, 918 F.2d 1329,
1332 (7th Cir. 1990).
Mr. Bolden argues that there was no
evidence that his failure to appear at
trial was "willful." In support of this
argument, Mr. Bolden points out that he
did not attempt to engage in illegal
activities, flee the jurisdiction, alter
his appearance, or otherwise elude the
authorities in the time that elapsed
between his failure to show up for his
trial and his arrest pursuant to a bench
warrant at his home four days later.
A defendant’s failure to appear is
"willful," however, if the defendant knew
that he was required to appear in court
and "voluntarily and intentionally"
failed to do so. Teta, 918 F.2d at 1334.
Mr. Minkus, Mr. Bolden’s attorney, told
the court that Bolden was absent "against
[his] strong and repeated advice." Tr. of
July 12, 1999, at 3. When the court
recessed to allow Mr. Bolden the
opportunity to show up for his trial, Mr.
Minkus paged Mr. Bolden. Mr. Minkus
reported to the court, on the record,
that Mr. Bolden had called in response to
the page and stated that he was not
coming to court. Mr. Bolden knew that his
presence was required in court on his
trial date and nevertheless decided not
to attend.
Furthermore, an upward adjustment for
obstruction of justice is appropriate
when a defendant’s actions have had a
"delaying effect on the administration of
justice." United States v. Gilleylen, 81
F.3d 70, 72 (7th Cir. 1996). Mr. Bolden’s
refusal to come to court, even at his
attorney’s urging, necessitated his
arrest; because of his actions, his trial
did not begin until more than two months
after it was originally scheduled. See
Teta, 918 F.2d at 1335 ("It is difficult
to imagine conduct that more clearly
interferes with the administration of
justice than a defendant’s failure to be
present. When the disposition of the
charges cannot proceed until the
defendant’s presence is secured, and when
he must be brought to court under arrest,
. . . there is obstruction of justice.").
It was not necessary that Mr. Bolden
attempt to flee the jurisdiction or
forcibly resist arrest when apprehended
in order for his behavior to constitute
obstruction. We have upheld upward
adjustments for obstruction of justice
many times when defendants failed to
appear for judicial proceedings,
necessitating the issuance of a bench
warrant. See, e.g., United States v.
Green, 114 F.3d 613, 620 (7th Cir. 1997)
(upward adjustment for obstruction of
justice appropriate when defendant failed
to appear for sentencing hearing);
Gilleylen, 81 F.3d at 72 (upward
adjustment for obstruction of justice
appropriate where defendant failed to
appear for pretrial conference but
appeared voluntarily before a bench
warrant was executed); Teta, 918 F.2d at
1333-34 (upward adjustment for
obstruction of justice appropriate where
defendant failed to appear for
arraignment and was subsequently arrested
on a bench warrant). The fact that Mr.
Bolden made no attempt to elude
authorities, who found him in his home,
may have been a "point in his favor," but
did not require "that he get a pass under
sec. 3C1.1." Gilleylen, 81 F.3d at 72.
The district court did not err in finding
that Mr. Bolden willfully obstructed
justice.
Conclusion
Because the government presented
sufficient evidence to prove Mr. Bolden
guilty of conspiracy beyond a reasonable
doubt and because the sentencing court
did not commit clear error in finding
that Mr. Bolden obstructed justice, we
affirm the judgment of the district
court.
AFFIRMED
FOOTNOTE
/1 The record does not reflect why Nettles-Bey
placed one of the packages in Davis’ closet.