United States v. Stott, Larry E., Jr.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2962, 99-3588 & 99-3781
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY E. STOTT, JR., ROBERT A. GAUGHAN,
also known as BOB, and LONNIE M. FORD,
also known as LONNIE,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 97 CR 168--James T. Moody, Judge.
Argued May 10, 2000--Decided March 26, 2001
Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Larry Stott, Robert
Gaughan and Lonnie Ford were all arrested and
charged with various crimes arising out of an
alleged conspiracy to distribute cocaine and
cocaine base. A jury convicted all three men. All
of the defendants allege errors in the trial that
led to their convictions; Mr. Gaughan and Mr.
Ford also appeal their sentences. For the reasons
set forth in the following opinion, we affirm the
convictions and Mr. Ford’s sentence. However, we
vacate Mr. Gaughan’s sentence and remand for
resentencing.
I
BACKGROUND
A. Facts
On December 8, 1997, DeShon Anderson and Jerry
Bonner were arrested while in possession of
marijuana, cocaine and cocaine base. Bonner told
Drug Enforcement Administration ("DEA") Agent
Maurice King that he would cooperate with the
DEA. Bonner further informed Agent King that he
had acquired the cocaine and cocaine base from
Robert Gaughan on a consignment basis and was
transporting the drugs to Lonnie Ford in
Indianapolis.
Bonner then allowed the DEA to record telephone
conversations he had with Mr. Gaughan and Mr.
Ford. In one of these conversations, Bonner
arranged for a sale of cocaine to Mr. Ford on
December 8. When Bonner arrived at the rendezvous
site with Agent King, however, Mr. Ford was not
there. Bonner contacted Mr. Ford, who said that
he had left the site when he spotted law
enforcement officials. Bonner and Mr. Ford set a
new rendezvous point at a service station. Mr.
Ford arrived at that rendezvous with Larry Stott.
Agent King, who was listening to Bonner’s
conversation through a microphone Bonner was
wearing, heard Mr. Ford tell Bonner that one of
the cars at the service station was a police car.
Agent King then advised the other officers that
Mr. Ford was aware of their presence, and the
agents arrested Mr. Ford and Mr. Stott at the
scene. Mr. Ford never took physical possession of
any drugs from Bonner.
At the time of the arrest, agents searched Mr.
Ford’s vehicle and found a gun in the back seat
armrest. The gun was not loaded, but a loaded
magazine was found in the front seat armrest.
Agents also uncovered $8,000 during the search.
After the arrest of Mr. Ford, Bonner continued
to speak to Mr. Gaughan by telephone, and he
arranged to meet Mr. Gaughan on December 15 in
Indiana to pay Mr. Gaughan for cocaine previously
provided to Bonner. Mr. Gaughan, who lived in
Chicago, arrived in the company of Lori
Kulikowski; Bonner arrived with Agent King. At
the meeting, Bonner put a bag, supposedly
containing money Bonner owed Mr. Gaughan, into
Mr. Gaughan’s car. Agents then moved in and
arrested Mr. Gaughan and Kulikowski. A search of
Mr. Gaughan’s car revealed a loaded .38 Smith and
Wesson revolver.
After the arrest, Mr. Gaughan and Kulikowksi
were transported to the Munster Police
Department. There Mr. Gaughan was interviewed by
Agent King and others. At that time, Gaughan said
that he had sold 20 to 30 kilograms of cocaine to
Bonner in the past. He also gave the agents
information concerning his supply source.
At some point, the agents discovered that Mr.
Gaughan was a diabetic and suffered from
cardiovascular disease. According to Mr. Gaughan,
he informed officers about his condition and also
told them that he was experiencing cramps,
nauseousness, clamminess and shortness of breath.
Despite this information, the officers refused to
retrieve Mr. Gaughan’s medication from his car or
to contact a physician until he had signed a
waiver of his rights. The officers’ recollection
differed from Mr. Gaughan’s. The officers
testified that, although they knew of Mr.
Gaughan’s conditions, he was asked if he was all
right and if he needed anything; Mr. Gaughan
responded that he did not./1
B. District Court Proceedings
1.
Mr. Stott, Mr. Gaughan, Mr. Ford, Anderson,
Bonner and Kulikowski were all indicted on
multiple counts relating to their alleged drug
distribution activities./2 Anderson and Bonner
both pleaded guilty, and Bonner agreed to testify
for the Government against the other defendants.
Mr. Stott, Mr. Gaughan and Mr. Ford elected to
stand trial./3
At trial, Agent King testified that Mr. Gaughan
made a statement after his arrest in which he
admitted that he had supplied Bonner with cocaine
on 20 to 30 occasions. According to Agent King,
Mr. Gaughan also said that his purpose in meeting
Bonner in Indiana was to receive payment for
cocaine that he had given to Bonner to sell on
consignment./4
Bonner testified that he had obtained cocaine
from Mr. Gaughan beginning in the spring of 1997
and that, after a while, Mr. Gaughan began
providing the drugs on a consignment basis.
Bonner would then sell the cocaine to Mr. Ford.
When Mr. Gaughan began consigning drugs to
Bonner, he in turn provided drugs on consignment
to Mr. Ford. Bonner testified that, at first, he
acquired cocaine from Mr. Gaughan in powder form
and resold it to Mr. Ford in that same form.
However, after October 1997, Bonner converted
some cocaine to cocaine base, also known as
crack, before providing it to Mr. Ford.
At some point during Bonner’s dealings with Mr.
Ford, Mr. Ford introduced Bonner to Mr. Stott.
Mr. Ford told Bonner that Mr. Stott was "his guy"
and would be transporting the cocaine on Mr.
Ford’s behalf. Trial Transcript ("Tr.") at 302.
After Bonner’s initial meeting with Mr. Stott,
Mr. Stott came to Bonner’s house to pick up drugs
and also traveled with Mr. Ford to meet Bonner
for the purpose of purchasing cocaine.
2.
The jury returned different verdicts against
each defendant. Mr. Stott was convicted on Count
IV (interstate travel in aid of an unlawful
activity, December 8, 1997)./5 The jury
convicted Mr. Gaughan on Count I (conspiracy to
possess with intent to distribute), Count III
(possession with intent to distribute cocaine,
December 8, 1997), Count IV and Count VII
(carrying a firearm during and in relation to the
conspiracy to possess with intent to distribute
cocaine, December 15, 1997). Mr. Ford was
convicted on Count II (possession with intent to
distribute more than 50 grams of cocaine base,
December 8, 1997), Count III, Count IV and Count
V (carrying a firearm during and in relation to a
conspiracy to possess with intent to distribute,
December 9, 1997). The district court then
proceeded to sentencing.
To arrive at the appropriate offense level for
Mr. Gaughan and Mr. Ford, the district court
first determined the amount and kind of drugs
attributable to each defendant. The district
court found that Mr. Gaughan had delivered 30
kilograms of cocaine powder to Bonner. It further
concluded that it was foreseeable to Mr. Gaughan
that at least 1.5 kilograms would have been
converted to crack cocaine. These amounts
resulted in an offense level of 38 and, in
combination with Mr. Gaughan’s criminal history
category, a sentencing range of 235 to 293
months. The district court sentenced Mr. Gaughan
to the minimum for his guideline range, 235
months.
The court undertook a similar analysis for Mr.
Ford. The court attributed 1.5 kilograms of crack
to Mr. Ford, mandating a base offense level of
38. It also gave him a two-level supervisory
enhancement. As a Category V offender with a
total offense level of 40, Mr. Ford was eligible
for a sentence of 360 months to life. The
district court sentenced him to 360 months.
The defendants appealed and now challenge
various aspects of their convictions and
sentences.
II
DISCUSSION
A. Trial Issues
1. Insufficiency of the evidence
against Mr. Stott
Mr. Stott was charged with violating the Travel
Act, 18 U.S.C. sec. 1952,/6 both as a principal
and as an aider and abettor. He contends that the
evidence against him was insufficient to support
his conviction. Specifically, Mr. Stott maintains
that Bonner’s testimony was conflicting and
unreliable and, therefore, was not sufficient to
support his conviction. Mr. Stott also claims
that his conviction for violating the Travel Act
is inconsistent with his acquittal on all of the
other counts. We address each argument below.
With respect to his first argument, Mr. Stott
claims that Bonner’s testimony was often vague
and points out that Bonner never testified at
trial that Mr. Stott was a customer of his. Thus,
Mr. Stott claims, Bonner’s testimony is not
credible and is insufficient to support the
conviction. However, it is not the role of the
appellate court to question the jury’s
credibility determinations. See United States v.
Durham, 211 F.3d 437, 445 (7th Cir. 2000); United
States v. Alcantar, 83 F.3d 185, 189 (7th Cir.
1996) ("Questions of witness credibility are
reserved for the jury, and its assessments will
not be second-guessed by an appellate panel.").
We shall not find a witness’ testimony
insufficient to sustain a conviction because it
might have omitted some details or might be
characterized as vague; we shall reverse a jury
verdict only if the testimony was incredible as a
matter of law. See United States v. Griffin, 194
F.3d 808, 817 (7th Cir. 1999), cert. denied, 529
U.S. 1044 (2000). To meet this standard, "a
defendant must show that testimony was . . .
contrary to the laws of nature or unbelievable on
its face." United States v. Scott, 145 F.3d 878,
883 (7th Cir. 1998). Mr. Stott has not met this
burden with respect to Bonner’s testimony, and,
consequently, we shall not overturn the jury’s
verdict.
Mr. Stott also urges us to overturn his
conviction because it is inconsistent with his
acquittal on the other counts in the indictment.
However, it is well-established in this circuit
that "[a] conviction by a jury on one count
cannot be reversed simply because it was
inconsistent with the jury’s verdict of acquittal
on another count." United States v. Muthana, 60
F.3d 1217, 1223 (7th Cir. 1995). Consequently,
the inconsistency, without more, does not warrant
overturning Mr. Stott’s conviction.
2. Challenges by Mr. Gaughan
(a)
Mr. Gaughan maintains that his due process
rights were violated when the Government failed
to provide Agent King’s grand jury testimony to
him prior to the suppression hearing on his in-
custody statements. According to Mr. Gaughan, the
Government had a duty to provide the material
prior to the suppression hearing pursuant to the
rule of Brady v. Maryland, 373 U.S. 83 (1963). We
set forth below the facts relevant to Mr.
Gaughan’s contention.
After Mr. Gaughan’s arrest, he made a statement
to Agent King in which, according to Agent King,
Mr. Gaughan admitted supplying Bonner with
cocaine on many occasions. Furthermore, Mr.
Gaughan admitted that on the day of his arrest he
had been traveling to Indiana to receive payment
for cocaine he had fronted to Bonner.
Prior to trial, Mr. Gaughan moved to suppress
this statement on the ground that agents coerced
the statement from him by exploiting his serious
medical condition./7 At the suppression hearing,
Mr. Gaughan introduced testimony from medical
experts explaining that at the time of his arrest
he was taking multiple medications for both
diabetes and cardiovascular disease. Mr. Gaughan
testified that, as the officers approached the
car to arrest him, he stated: "Look, I’m a heart
patient and I’m diabetic. I haven’t had may [sic]
medication this evening yet." Suppression Hearing
Transcript ("Supp. Tr.") at 35. After his arrest,
he repeatedly told officers that he did not feel
well and asked for his medication; the agents,
however, refused to provide him with his
medication until he answered their questions and
made recorded telephone calls to his supplier.
The agents present during the interview
contradicted Mr. Gaughan’s version of events.
Specifically, Officer Thomas Stipanich testified
that, during the course of questioning Mr.
Gaughan, he became aware of Mr. Gaughan’s medical
conditions. Then, according to the officer, "[w]e
asked him if he needed any immediate medical
attention. He told us no, that he does take pills
and things like that for him. [He] [d]id not
request any medical assistance at all." Supp. Tr.
at 72. DEA Agent Maurice King also testified at
the suppression hearing. Agent King recalled that
Mr. Gaughan’s medical condition came up and that
"he was offered--he was asked whether he needed
anything. And he basically said no, some water."
Supp. Tr. at 120. Finally, DEA Agent Tom Decanter
testified that he had observed that Mr. Gaughan
looked nervous during his interview. At that
point, Agent Decanter inquired whether Mr.
Gaughan was okay. Mr. Gaughan then informed the
officers of his medical condition. Like the other
officers who testified, Agent Decanter stated
that Mr. Gaughan was asked if he needed anything
and that Mr. Gaughan responded that he did not.
Including the testimony set forth above,
evidence at the hearing established that, after
Mr. Gaughan’s interview, he was transported to
the Calumet City police station where he was to
be held until his initial appearance the next
morning. After being checked in, Mr. Gaughan
requested medical assistance and was taken to a
local hospital for treatment. Against his
doctors’ recommendation, Mr. Gaughan checked
himself out of the hospital the next morning.
Based on the evidence presented at the hearing,
the district court denied the motion to suppress.
The court rejected Mr. Gaughan’s arguments that
the statement was coerced and allowed the
statement to be used at trial. It stated:
The Defendant did not ask the arresting officers
for his medication or for medical assistance.
The Defendant did not tell the arresting
officers that he was not feeling well, suffering
chest pains, feeling faint or suffering from any
other discomfort.
The Court further finds that the statements that
this--that the Defendant seeks to suppress were
made knowingly and voluntarily, and not as the
result of coercion, breach of promises or lack of
medical assistance and medication. Therefore, the
Defendant’s Motion to Suppress is denied.
Supp. Tr. at 151-52.
Agent King’s testimony at the suppression
hearing differed in some respects from the
testimony that he had given before the grand
jury. In front of the grand jury, Agent King
apparently stated that, after being transported
from the initial interview site, Mr. Gaughan
asked for his medications, that agents had gone
to Mr. Gaughan’s car to gather the medications
but that only an empty bottle of medication was
found in the car. On cross-examination of Agent
King at Mr. Gaughan’s sentencing hearing, counsel
established that Mr. Gaughan’s request for his
medication must have been made before Mr. Gaughan
was transported because his car was not taken to
Calumet City. See Gaughan Sentencing Transcript
("Gaughan Sent. Tr.") at 20-24.
The prosecution did not inform the defense of
Agent King’s grand jury testimony prior to the
suppression hearing; thus, at the suppression
hearing, Mr. Gaughan could not impeach Agent King
with his earlier statements. However, the
statements to the grand jury apparently were
provided to the defense prior to trial, and the
statements were used for impeachment purposes
both at trial and, as noted above, at the
sentencing hearing. After learning of the grand
jury testimony, Mr. Gaughan did not argue that
the disclosure was belated or renew his motion to
suppress.
On appeal, Mr. Gaughan argues that the rule of
Brady v. Maryland applies to suppression hearings
and, in these circumstances, required the
Government to furnish Agent King’s grand jury
testimony prior to the suppression hearing.
Because Mr. Gaughan did not present this argument
to the district court, our review is only for
plain error. See United States v. Brumley, 217
F.3d 905, 909 (7th Cir. 2000)./8
In United States v. Olano, 507 U.S. 725 (1993),
the Supreme Court explained the criteria for
establishing "plain error." First, the error must
be "plain." The court explained that, properly
understood, "’[p]lain’ is synonymous with ’clear’
or, equivalently, ’obvious.’" Id. at 734. It is
inappropriate, therefore, to find plain error
when current law is unsettled. See, e.g., United
States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.
1998); United States v. Klinger, 128 F.3d 705,
712 (9th Cir. 1997); United States v. Brewer, 1
F.3d 1430, 1435 (4th Cir. 1993). Second, the
error must affect "substantial rights." Olano,
507 U.S. at 734. In order to meet this burden,
"[n]ormally, . . . the defendant must make a
specific showing of prejudice . . . ." Id. at
735. Finally, the error must "seriously affect[ ]
the fairness, integrity or public reputation of
judicial proceedings." Id. at 736. According to
the Court, this last requirement will always be
met if "a plain forfeited error . . . cause[d]
the conviction or sentencing of an actually
innocent defendant"; however, it was not willing
to define this last element strictly in terms of
actual innocence. Id. With these standards in
mind, we turn to Mr. Gaughan’s Brady claim.
In Brady v. Maryland, the Supreme Court held
that "the suppression by the prosecution of
evidence favorable to an accused upon request
violates due process where the evidence is
material either to guilt or to punishment,
irrespective of the good faith or bad faith of
the prosecution." 373 U.S. at 87. Since Brady,
the scope of the prosecutor’s duty to disclose
such information has been more sharply refined in
several important respects: The duty is
applicable regardless of whether there has been a
request by the accused, see United States v.
Agurs, 427 U.S. 97, 107 (1976); the duty
encompasses impeachment evidence as well as
exculpatory evidence, see United States v.
Bagley, 473 U.S. 667, 676 (1985); and the duty
applies to evidence known to police investigators
even if unknown to the prosecutor, see Kyles v.
Whitney, 514 U.S. 419, 438 (1995). See also
Strickler v. Greene, 527 U.S. 263, 280-81 (1999).
However, a Brady violation only occurs if
"material" evidence is withheld, that is "if
there is a reasonable probability that, had the
evidence been disclosed to the defense, the
result of the proceeding would have been
different." Bagley, 473 U.S. at 682. Furthermore,
"[a]s long as ultimate disclosure is made before
it is too late for the defendants to make use of
any benefits of evidence, Due Process is
satisfied." United States v. Ziperstein, 601 F.2d
281, 291 (7th Cir. 1979).
The Government does not argue that Agent King’s
testimony was not valuable for impeachment.
Instead, it contends that Brady does not require
the disclosure of exculpatory or impeachment
material prior to a suppression hearing. The rule
of Brady, contends the Government, only applies
to evidence that is material to either guilt or
punishment; therefore, disclosure prior to the
suppression hearing was not required. Because the
duty only applies to the guilt or punishment
phase, the Government submits that it fulfilled
its obligations under Brady by providing the
material prior to trial.
We find it unnecessary to decide whether Brady
applies to suppression motions because it is
clear that the district court did not commit
plain error by not applying Brady here. Although,
as noted above, the rule of Brady has been
refined in several respects, the Supreme Court
has not had the occasion to determine whether
this rule requires disclosure of impeachment
evidence prior to a suppression hearing.
Similarly, we have not had an opportunity to
focus definitively on this issue. Mr. Gaughan
points to United States v. Veras, 51 F.3d 1365(7th Cir. 1995), as support for his argument that
the issue has been resolved in favor of extending
Brady disclosure requirements to suppression
hearings. In Veras, the defendant had moved for a
new trial based on the government’s failure to
disclose impeachment evidence concerning one of
the government’s primary witnesses; the witness
had testified both at a suppression hearing and
at trial. The district court denied the motion
for a new trial on the ground that the
undisclosed information was not material because
it was inadmissible under Federal Rule of
Evidence 608(b). The district court concluded
that, "[b]ecause the suppressed evidence would
not have affected the outcome of the suppression
hearing or the trial, defendant’s due process
rights were not violated and his motion for a new
trial pursuant to Brady and Giglio [v. United
States, 405 U.S. 150 (1972)] is denied." Id. at
1375. In reviewing the district court’s rationale
for denying the new trial motion, we stated that
"[w]e [found] no fault with the district court’s
holding." Id.
Given the context in which this statement arose,
we cannot conclude that it squarely establishes
that Brady applies to suppression hearings. The
issue came to us as part of a new trial motion
that involved both a pretrial suppression hearing
and a trial. The district court did not address
the issues separately. Furthermore, because the
defendant appealed from the denial of the new
trial motion, this court did not have the
occasion or the need to address, as a discreet
issue, Brady’s application to a pretrial
suppression hearing. We consequently cannot
conclude that our holding in Veras makes it
"obvious" that Brady disclosures are required
prior to suppression hearings.
Furthermore, there is no consensus among the
other circuits as to whether Brady should apply
to suppression hearings. The Ninth Circuit has
held explicitly that it does, at least with
respect to some categories of suppression
hearings. See United States v. Barton, 995 F.2d
931, 935 (9th Cir. 1993) ("[W]e hold that the due
process principles announced in Brady and its
progeny must be applied to a suppression hearing
involving a challenge to the truthfulness of
allegations in an affidavit for a search
warrant."). The Fifth Circuit, too, has applied
Brady disclosure requirements to a motion to
suppress, see Smith v. Black, 904 F.2d 950, 965-
66 (5th Cir. 1990), vacated on other grounds, 503
U.S. 930 (1992); however, the undisclosed
evidence in that case was found to be immaterial,
see id. at 966. The Fourth Circuit has taken an
approach similar to the one we took in Veras,
assuming without deciding that Brady applies to
suppression hearings. See United States v.
Williams, 10 F.3d 1070, 1077 (4th Cir. 1993)
("Even if Brady were applicable in the context of
a pretrial suppression hearing, application of
the law to the facts of the instant case would
not require a different result. . . . In light of
the inconsequential nature of the Brady case to
these proceedings, we assume arguendo but decline
to address definitively on the merits the issue
of whether Brady should call for disclosure of
material evidence at pre-trial suppression
hearings.")./9 The District of Columbia Circuit
however, has expressed its doubts as to whether
Brady applies to suppression hearings. See United
States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999).
Focusing on the same language as the Government,
that circuit stated: "[I]t is hardly clear that
the Brady line of Supreme Court cases applies to
suppression hearings. Suppression hearings do not
determine a defendant’s guilt or punishment, yet
Brady rests on the idea that due process is
violated when the withheld evidence is ’material
either to guilt or to punishment.’" Id. at 912
(quoting Brady, 373 U.S. at 87).
In summary, we cannot say that the law is clear
on the question of whether Brady should apply to
suppression hearings. There is no clear statement
on the issue from either the Supreme Court or
this court, and there is no prevailing national
standard. Because the law concerning Brady’s
application to suppression hearings is not
"clear" or "obvious," we cannot find plain error.
Olano, 507 U.S. at 734; see also United States v.
Pandiello, 184 F.3d 682, 688 (7th Cir. 1999);
United States v. Lindsey, 123 F.3d 978, 985 (7th
Cir. 1997); United States v. Mims, 92 F.3d 461,
465 (7th Cir. 1996).
However, we have, in the present case, an even
more compelling reason to reject Mr. Gaughan’s
Brady claims. To meet the plain error standard,
Mr. Gaughan must establish that the error
"seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings."
Olano, 507 U.S. at 736. We do not believe that
this criterion has been satisfied. In the present
action, it is undisputed that the Government did
not produce Agent King’s grand jury testimony
prior to the suppression hearing on Mr. Gaughan’s
post-arrest statements, the time in the usual
course of judicial proceedings that the evidence
would have been most useful to Mr. Gaughan.
However, the record shows that the grand jury
testimony was disclosed prior to the admission of
Mr. Gaughan’s statement into evidence at trial
and, therefore, at a time when Mr. Gaughan’s
counsel still had the option of asking the
district court to reconsider its ruling on the
motion to suppress. Indeed, the record not only
establishes that the material was in the hands of
the defense at this time, but also that it was
used by the defense to cross-examine Agent King
and to undermine his credibility. Under these
circumstances, we do not believe that the
Government’s failure to disclose Agent King’s
grand jury testimony prior to the suppression
hearing "seriously affect[ed] the fairness,
integrity or public reputation of [the] judicial
proceedings." Consequently, Mr. Gaughan has not
established that the Government’s failure rose to
the level of "plain error."
(b)
Mr. Gaughan objects to the district court’s
instruction to the jury regarding the fronting of
cocaine. The instruction read as follows:
The delivery of drugs with an agreement to pay
for them after a subsequent sale is typically
referred to as "fronting." The repeated
"fronting" of cocaine, alone, may be sufficient
to establish a conspiracy.
R.295, Inst. 34A. Mr. Gaughan contends that this
instruction improperly highlights "fronting" as a
method by which conspiracy may be proven. We
review a claim of instructional error for an
abuse of discretion. See United States v. Aldaco,
201 F.3d 979, 989 (7th Cir. 2000); United States
v. Wilson, 159 F.3d 280, 291 (7th Cir. 1998),
cert. denied, 527 U.S. 1024 (1999).
The district court’s instruction relied upon our
opinion in United States v. Ferguson, 35 F.3d 327(7th Cir. 1994). In that case, we wrote that
"[t]he repeated ’fronting’ of cocaine, alone, has
been held sufficient to support the jury’s
conclusion that the defendant had knowingly
joined a distribution conspiracy." Id. at 331.
The principle stated in Ferguson continues to be
the law of this circuit. See, e.g., United States
v. Frazier, 213 F.3d 409, 415 (7th Cir. 2000)
("We have held that an ongoing relationship
involving numerous purchases and the fronting of
drugs indicates the existence of a conspiracy."),
cert. denied, 2001 WL 135828 (Feb. 16, 2001).
Thus, the district court’s instruction was a
correct statement of the law. "If the
instructions are adequately supported by the
record and are fair and accurate summaries of the
law, the instructions will not be disturbed on
appeal." United States v. Lanzotti, 205 F.3d 951,
956 (7th Cir.), cert. denied, 120 S. Ct. 2746(2000); see also Aldaco, 201 F.3d at 989; United
States v. Wimberly, 79 F.3d 673, 676 (7th Cir.
1996). Mr. Gaughan has not argued that the
fronting instruction was inadequately supported
by the record, and we believe that it was a fair
and accurate summary of the law. Accordingly, we
shall not vacate Mr. Gaughan’s conviction on the
ground that this instruction tainted his trial.
3. Challenges by Mr. Ford
(a)
Mr. Ford first challenges his convictions for
possession with intent to distribute cocaine or
cocaine base./10 As described above, Bonner had
arranged to meet Mr. Ford on December 8, for the
purpose of conducting a sale of cocaine and
cocaine base. However, before the exchange took
place, Mr. Ford became aware that law enforcement
was present and the officers on the scene
arrested Mr. Ford before he took actual
possession of the drugs. Mr. Ford contends that
this lack of actual possession precludes a
conviction for possession with intent, which
requires a defendant to have either dominion or
control over the drugs at issue. In the district
court, Mr. Ford moved for an acquittal on this
basis. However, the district court rejected Mr.
Ford’s argument and, in a postconviction ruling,
explained that Mr. Ford’s conviction could be
sustained on the ground that he had aided and
abetted Bonner’s possession of the cocaine.
When considering a criminal defendant’s
challenge to the sufficiency of the evidence
supporting his conviction, we review the evidence
in the light most favorable to the government. We
shall reverse a conviction only if no rational
trier of fact could have found the crime’s
essential elements beyond a reasonable doubt. See
United States v. Jones, 188 F.3d 773, 776 (7th
Cir.), cert. denied, 528 U.S. 1033 (1999); United
States v. Gibbs, 61 F.3d 536, 537 (7th Cir.
1995). However, any questions of law raised by
Mr. Ford’s challenge are reviewed de novo. See
United States v. Hoogenboom, 209 F.3d 665, 669
(7th Cir. 2000); United States v. Irwin, 149 F.3d
565, 569 (7th Cir. 1998).
We believe the law and the record support the
district court’s determination that Mr. Ford
aided and abetted Bonner’s possession of cocaine
and cocaine base. The aiding and abetting
statute, 18 U.S.C. sec. 2, states: "Whoever
commits an offense against the United States or
aids, abets, counsels, commands, induces or
procures its commission, is punishable as a
principal." Id. sec. 2(a). To be convicted as an
aider and abettor, it must be shown that Mr. Ford
associated himself with the activity at issue and
that he tried to make the activity succeed. See
United States v. Heath, 188 F.3d 916, 921 (7th
Cir. 1999); United States v. Coleman, 179 F.3d
1056, 1061 (7th Cir.) ("To sustain the conviction
under a theory of aiding and abetting, we must
find that the government proved that Coleman
knowingly participated in the transaction as
something he wished to bring about and that he
sought by his actions to make it succeed.")
(internal quotation marks and citations omitted),
cert. denied, 528 U.S. 957 (1999)./11
In denying Mr. Ford’s motion for acquittal or a
new trial, the district court relied on our
decision in United States v. Wesson, 889 F.2d 134(7th Cir. 1989). In that case, we held:
You may "abet" the crime of possession with
intent to distribute by procuring the customers
and maintaining the market in which the
possession is profitable, even though you do
nothing else to help the possessor get or retain
possession. Middlemen aid and abet the offense of
possession with intent to distribute.
Id. at 135. Mr. Ford contends, however, that he
was not a middleman such as Wesson, but instead
was only a buyer with interests distinct from
those of Bonner. Because his relationship with
Bonner was merely that of a buyer and a seller,
Mr. Ford argues, he cannot be found to have aided
and abetted Bonner’s possession.
The Government counters that the prior
relationship between Mr. Ford and Bonner makes
Mr. Ford more than a mere buyer. In making its
argument, the Government draws on cases from the
law of conspiracy. The Government argues that
because Bonner routinely fronted drugs to Mr.
Ford, Mr. Ford could be considered part of a
conspiracy with Bonner. As we stated earlier, it
is well-established in this circuit that the
repeated fronting of drugs may demonstrate the
existence of a conspiracy. See Frazier, 213 F.3d
at 415; Ferguson, 35 F.3d at 331; United States
v. Cabello, 16 F.3d 179, 182 (7th Cir. 1994). The
Government contends that because it established
that Bonner routinely fronted drugs to Mr. Ford,
a conspiracy existed between them; thus, it
claims, Mr. Ford may properly be considered to
have aided and abetted Bonner.
We cannot accept the Government’s arguments for
several reasons. First, the Government’s position
is premised on a conspiracy theory, but Mr. Ford
was not convicted of conspiracy. Second, the
Government’s argument implies that aiding and
abetting is a lesser included offense of
conspiracy, however, in the context of a federal
drug prosecution, it is not. See United States v.
Shabani, 513 U.S. 10, 14-15 (1994). When proof of
one crime requires proof of an element not
necessary to prove a second crime, the first
crime is not a lesser included offense of the
second. See, e.g., Schmuck v. United States, 489
U.S. 705, 716 (1989). In this type of proceeding,
to win a conviction for aiding and abetting the
Government must prove an element not necessary to
prove conspiracy: the existence of an overt act
by the defendant. Compare Lanzotti, 205 F.3d at
956 ("Under federal law, the crime of aiding and
abetting requires knowledge of the illegal
activity that is being aided and abetted, a
desire to help the activity succeed and some act
of helping." (emphasis added)) with United States
v. Hunte, 196 F.3d 687, 691 (7th Cir. 1999)
("[C]onspiracy liability does not require
evidence of an overt act by the defendant.").
Because aiding and abetting is not a lesser
included offense of conspiracy, the Government’s
evidence showing the existence of a conspiracy
does not automatically demonstrate that Mr. Ford
aided and abetted Bonner.
Nonetheless, we believe that Mr. Ford’s
conviction may be affirmed. Although the
Government improperly focuses on the fact that
the fronting of drugs supports a conspiracy
conviction, we also have held that the fronting
of drugs supports an aiding and abetting
conviction:
Furthermore, sales on credit, in combination with
frequent and repeated transactions, justify an
aider and abettor instruction. See, e.g., United
States v. Blankenship, 970 F.2d 283, 287 (7th
Cir. 1992); United States v. Kasvin, 757 F.2d
887, 891 (7th Cir. 1985). This same evidence
would permit a jury to infer that Rivera did not
have a mere buyer/seller arrangement with
Bradley.
United States v. Rivera, 153 F.3d 809, 814 (7th
Cir. 1998). A person who receives fronted drugs
for resale to others may be considered a
middleman rather than a buyer, and we have held
that "middlemen aid and abet the offense of
possession with intent to distribute." United
States v. McNeese, 901 F.2d 585, 609 (7th Cir.
1990) (quoting Wesson, 889 F.2d at 135),
overruled on other grounds, United States v.
Westmoreland, 240 F.3d 618 (7th Cir. 2001).
Consequently, Mr. Ford’s conviction as an aider
and abettor may be affirmed if there is evidence
indicating that Bonner fronted him cocaine on a
repeated basis.
The record contains such evidence. Bonner
testified specifically that he fronted drugs to
Mr. Ford. Bonner stated that, when Mr. Gaughan
began fronting drugs to him, he in turn began
fronting drugs to Mr. Ford:
Q. And once you were fronted by Bob [Gaughan],
how would that change your relationship with
Lonnie [Ford]?
A. Well, I would front him too.
Q. What does that mean, front?
A. Front means to--you receive the merchandise
without paying all the money or any of the money.
You pay the money later but you get the
merchandise first.
Tr. at 306-07. From this testimony, a reasonable
jury could conclude that Bonner fronted cocaine
to Mr. Ford. Because, as noted above, the
repeated fronting of drugs supports a conviction
for aiding and abetting the crime of possession
with intent to distribute, we affirm Mr. Ford’s
conviction.
(b)
Mr. Ford also challenges his conviction for
using or carrying a firearm during and in
relation to a drug trafficking offense. Mr. Ford
does not dispute that the evidence demonstrates
that he brought a gun to his rendezvous with
Bonner and that he intended to give Bonner that
gun. Mr. Ford argues, however, that he brought
the gun to Bonner for Bonner’s personal
protection and, therefore, the gun was unrelated
to his (Mr. Ford’s) participation in the drug
trade. Thus, he claims, the gun was not related
to a drug trafficking offense.
In addition to the penalties the Government may
seek for drug traffickers, additional penalties
may be sought for
any person who, during and in relation to any
crime of violence or drug trafficking crime . . .
for which the person may be prosecuted in a court
of the United States, uses or carries a firearm,
or who, in furtherance of any such crime,
possesses a firearm[.]
18 U.S.C. sec. 924(c)(1)(A). The term "in
relation to" is "expansive" and means that "the
gun at least must facilitat[e], or ha[ve] the
potential of facilitating, the drug trafficking
offense." Smith v. United States, 508 U.S. 223,
237-38 (1993) (internal quotation marks omitted);
United States v. Haynes, 179 F.3d 1045, 1047 (7th
Cir.) (quoting Smith), cert. denied, 528 U.S. 957(1999). A conviction under sec. 924(c)(1) is
inappropriate if "the firearm’s presence is
coincidental or entirely unrelated to the crime."
Smith, 508 U.S. at 238 (internal quotation marks
omitted); United States v. Taylor, 31 F.3d 459,
465 (7th Cir. 1994) (quoting Smith). However, "if
the drugs and gun are together in the same place
it is nearly an inescapable conclusion that they
satisfy the in relation to prong of sec.
924(c)(1)." United States v. Pike, 211 F.3d 385,
389 (7th Cir. 2000) (quoting United States v.
Molina, 102 F.3d 928, 932 (7th Cir. 1996)).
At trial, Bonner testified that he wanted the
gun for personal protection, not necessarily the
protection of his drugs. However, a few weeks
prior to the rendezvous with Mr. Ford, Bonner’s
apartment was robbed, he was beaten, and some
cocaine was taken. This event prompted Bonner to
ask Mr. Ford for a gun. Mr. Ford agreed to
provide Bonner with a gun, and delivery was
intended to take place at the same time Mr. Ford
purchased additional cocaine from Bonner.
We believe that, given the circumstances
described above, the jury could conclude
reasonably that Mr. Ford possessed the gun in
relation to a drug trafficking offense. Mr. Ford
knew Bonner only as his supplier. Furthermore, he
knew that Bonner’s desire for the weapon arose
from the fact that drugs were taken from Bonner’s
apartment. In these circumstances, the presence
of the gun could be considered by the jury as not
merely coincidental or unrelated to Mr. Ford’s
drug trafficking. Instead, the jury was entitled
to conclude that Mr. Ford provided the gun to
Bonner, his supplier, for Bonner’s protection as
well as the protection of Bonner’s cocaine, and
that the weapon found in Mr. Ford’s car therefore
was related to his drug trafficking offense. We
therefore affirm Mr. Ford’s conviction on this
count./12
4. Issues common to Mr. Ford and Mr.
Gaughan
(a)
Mr. Ford and Mr. Gaughan raise jointly a claim
of instructional error. They argue that the
district court’s jury instruction regarding
vicarious liability for the acts of co-
conspirators, pursuant to Pinkerton v. United
States, 328 U.S. 640 (1946), was erroneous. The
instruction, they claim, failed to convey to
jurors that they had to find beyond a reasonable
doubt that the substantive offense was committed
by a co-conspirator in furtherance of or as a
natural consequence of the conspiracy. Although
trial counsel objected to the Pinkerton
instruction in the district court, his objections
were only of a general nature, and he did not
raise this particular argument./13 Thus, our
review is only for plain error. See United States
v. Cooke, 110 F.3d 1288, 1293 (7th Cir. 1997)
("Although Cooke objected to instruction 22, he
did so on grounds other than those asserted here.
Accordingly, we review for plain error."); United
States v. Roth, 860 F.2d 1382, 1390 (7th Cir.
1988) ("An objection that does not point out the
problem in the instruction is insufficient
because it does not give fair prospect of timely
correction.").
The court’s Pinkerton instruction stated:
A conspirator is responsible for offenses
committed by his fellow conspirators if he was a
member of the conspiracy when the offense was
committed and if the offense was committed in
furtherance of the conspiracy. Therefore, if you
find a defendant guilty of the conspiracy as
charged in Count 1 and if you find beyond a
reasonable doubt that while that defendant was a
member of the conspiracy, his fellow conspirators
committed the offenses charged in Counts 2, 3, 4,
and/or 5, then you should find him guilty of
Counts 2, 3, 4, and/or 5.
R.295, Inst. 52. The Government argues that the
instruction closely follows the language of
Seventh Circuit Pattern Jury Instruction 5.09,
that the first sentence of the instruction makes
clear that Pinkerton liability only attaches when
coconspirators act in furtherance of the
conspiracy and that the jury was reminded
repeatedly that its findings must be beyond a
reasonable doubt. Consequently, in the
Government’s view, the instructions, taken as a
whole, adequately informed the jury of the
elements of the Pinkerton doctrine.
It is true that the first sentence of the
court’s instruction follows Pattern Instruction
5.09 to the letter. However, the second sentence
of the pattern instruction states: "Therefore if
you find a defendant guilty of the conspiracy
charged in Count(s) ___ and if you find beyond a
reasonable doubt that while he/she was a member
of the conspiracy, his/her fellow conspirator(s)
committed the offense(s) in Count(s) ___ in
furtherance of and as a foreseeable consequence
of that conspiracy, then you should find him/her
guilty of Count(s) ___." Seventh Circuit Pattern
Instruction 5.09 (emphasis added). At no other
point in the instructions was the jury informed
that, in order to hold a defendant liable for his
coconspirator’s crimes, the crimes must have been
in furtherance of or a foreseeable consequence of
the conspiracy.
We are not convinced that the instruction as
given properly informed the jury of the necessary
requirements for applying the Pinkerton doctrine.
We have stated:
For a Pinkerton instruction to be adequate, it
must focus the jury on the coconspirator’s act,
on whether it is a crime, on whether the
coconspirator’s guilt of this crime was proved
beyond a reasonable doubt, and on whether it was
committed in furtherance of the conspiracy in
which the defendant participated. The instruction
must also advise the jury that the government
bears the burden of proving all elements of the
doctrine beyond a reasonable doubt.
United States v. Sandoval-Curiel, 50 F.3d 1389,
1394-95 (7th Cir. 1995) (internal quotation marks
and citations omitted). Here the instruction
neither focused the jury on "whether [the crime]
was committed in furtherance of the conspiracy"
nor instructed the jury that this element must be
found beyond a reasonable doubt. We previously
have rejected Pinkerton instructions on similar
bases. See United States v. Elizondo, 920 F.2d
1308, 1317 (7th Cir. 1990) (finding instructional
error because the Pinkerton instruction "failed
to advise jurors that the government bore the
burden of proving that all elements of the
powerful Pinkerton doctrine must be proven beyond
a reasonable doubt"). Consequently, we cannot
conclude that, under these circumstances,/14
the jury understood all of the elements necessary
to hold a defendant vicariously liable for the
acts of his coconspirators.
Although here the Pinkerton instruction was
lacking, we believe that the defect cannot be
characterized as plain error. Pinkerton liability
is vicarious liability. However, with respect to
Mr. Gaughan, there was direct evidence to support
his convictions for Count III (possession with
intent to distribute cocaine on December 8, 1997)
as an aider and abetter. See Elizondo, 920 F.2d
at 1317 ("Alternative theories of direct and
vicarious liability raised below exist for
affirming the substantive-count convictions
despite the defective Pinkerton instruction.").
As we explained earlier, the fronting of drugs
can support a conviction for aiding and abetting
possession with intent to distribute narcotics.
Here, Bonner testified that Mr. Gaughan had
fronted Bonner the cocaine that he was carrying
when he was arrested on December 8, 1997.
There is also direct evidence that Mr. Gaughan
aided and abetted a violation of the Travel Act
as set forth in Count VI (interstate travel in
aid of an unlawful activity involving possession
with intent to distribute cocaine). In order to
aid and abet the Travel Act violation, the
evidence must demonstrate that Mr. Gaughan had
the state of mind required for the Travel Act
offense and took some action intended to make the
endeavor succeed, see id. at 1318; it was not
necessary for the Government to show that Mr.
Gaughan induced or even had knowledge of Bonner’s
interstate travel./15 See United States v.
Abadie, 879 F.2d 1260, 1266 (5th Cir. 1989); see
also United States v. Sigalow, 812 F.2d 783 (2d
Cir. 1987) ("Our holding that an aider and
abettor of a Travel Act violation need not have
assisted in the use of interstate facilities is
consistent with the reasoning of other
circuits."). Mr. Gaughan’s fronting of the drugs
to Bonner meets this criterion.
Mr. Ford’s challenge is even less meritorious.
Mr. Ford was not convicted of the conspiracy
charged in Count I. However, the court’s
Pinkerton instruction required the jury to find
that the defendant participated in the conspiracy
before it could hold him vicariously liable for
the actions of the coconspirators. See R.295,
Inst. 52 ("Therefore, if you find a defendant
guilty of conspiracy as charged in Count 1 . . .
then you should find him guilty of Counts 2, 3,
4, and/or 5." (emphasis added)). "Absent evidence
to the contrary, we presume that the jury
understood and followed the district court’s
instructions." United States v. Cornett, 232 F.3d
570, 574 (7th Cir. 2000). Because the jury had no
occasion to apply the Pinkerton instruction to
Mr. Ford, he was not prejudiced by the
instruction. Consequently, we shall not reverse
his conviction on this basis.
(b)
Mr. Ford and Mr. Gaughan were convicted of
violating the Travel Act, 18 U.S.C. sec. 1952, on
or about December 8, 1997. The indictment charged
both the principal offense of violating the
Travel Act and aiding and abetting a violation of
the Travel Act. "’To establish a violation [of
the Travel Act], it is sufficient to show
interstate travel or the use of an interstate
facility with intent to promote or carry on an
unlawful activity, and facts constituting the
promotion or carrying on of the unlawful activity.’"
United States v. Auerbach, 913 F.2d 407, 410 (7th
Cir. 1990) (quoting United States v. Craig, 573
F.2d 455, 489 (7th Cir. 1977)).
Mr. Ford and Mr. Gaughan argue that, because
they did not promote or carry on unlawful
activity, their Travel Act conviction cannot
stand. Mr. Ford and Mr. Gaughan acknowledge that
their arguments on the Travel Act count "are,
essentially, claims of a derivative nature,"
Reply Br. at 9; that is, because they were
improperly convicted on other counts, they were
improperly convicted under the Travel Act.
However, we have affirmed Mr. Ford’s and Mr.
Gaughan’s convictions on the other counts that
provide a basis for the Travel Act violation. Mr.
Ford and Mr. Gaughan do not challenge their
conviction on any other basis; accordingly, we
affirm their Travel Act conviction.
B. Sentencing Issues
1. Mr. Gaughan
Mr. Gaughan challenges the amount of crack
attributed to him by the district court. The
district court found that Mr. Gaughan had
delivered 30 kilograms of cocaine to Bonner and
that he should have foreseen that at least 1.5
kilograms of cocaine would have been converted to
crack cocaine. Mr. Gaughan argues that he could
not have foreseen the amount of cocaine that
would have been converted to crack. The district
court’s determination of the amount of cocaine
and crack attributable to Mr. Gaughan is a
factual one that we review for clear error. See
United States v. Roe, 210 F.3d 741, 748 (7th Cir.
2000); United States v. Burns, 128 F.3d 553, 554
(7th Cir. 1997). We shall reverse the district
court’s conclusion only if we are left with the
firm and definite conviction that a mistake has
been made. See United States v. Galbraith, 200
F.3d 1006, 1011 (7th Cir. 2000); United States v.
Taylor, 111 F.3d 56, 58 (7th Cir. 1997).
Mr. Gaughan was considered a Category I offender
by the district court. On this appeal, he does
not challenge the district court’s factual
finding that 30 kilograms of cocaine may be
attributed to him, and the record amply supports
this finding. At Mr. Gaughan’s sentencing
hearing, Bonner testified specifically that he
made approximately 30 pickups from Mr. Gaughan,
receiving one kilogram of cocaine each time.
According to U.S.S.G. sec. 2D1.1(c), a person
convicted of a crime involving between 15 and 50
kilograms of cocaine has a base offense level of
34. However, the district court also found that
Mr. Gaughan’s crimes involved 1.5 kilograms of
crack, which mandates an offense level of 38. The
court did not enter detailed findings of fact
regarding the percentage of the cocaine converted
to crack, stating simply:
The evidence also indicates that Defendant
Gaughan knew or reasonably should have foreseen
the conversion to crack form, and at a very
minimum one and a half kilograms of crack
cocaine.
Gaughan Sent. Tr. at 67. We must determine
whether the record supports the district court’s
decision to sentence Mr. Gaughan at a base
offense level of 38 rather than 34.
Mr. Gaughan was convicted of conspiring to
distribute cocaine. It is appropriate for a
district court to attribute to a defendant the
conversion of cocaine into crack by the
defendant’s co-conspirators if that conversion
was foreseeable. See United States v. Shorter, 54
F.3d 1248, 1261 (7th Cir. 1995) ("The evidence
also indicated that Shorter knew of or reasonably
should have foreseen the conversion to crack
form.")./16 The record contains evidence
indicating that Mr. Gaughan was aware that some
cocaine was being converted to crack. Bonner
testified at trial that he spoke to Mr. Gaughan
about problems Mr. Ford was having with the
conversion of cocaine into crack. According to
Bonner, Mr. Gaughan responded that his "other
peoples" were not having problems with the
conversion. Tr. at 311. Later, Bonner was asked,
"Did [Mr. Gaughan] know that some of his crack
cocaine--some of his cocaine was going to be
cooked into crack"; Bonner answered "Yes, he--he
knew that." Tr. at 479. From this testimony, the
district court could properly conclude that Mr.
Gaughan was aware that some cocaine was being
converted to crack./17
The burden is on the government to establish the
type and amount of drugs attributable to the
defendant by a preponderance of the evidence. See
United States v. Johnson, 200 F.3d 529, 537 (7th
Cir. 2000). It therefore was incumbent upon the
Government to establish a conversion ratio. See
United States v. Hunter, 145 F.3d 946, 952 (7th
Cir. 1998) ("[C]onversion ratios are a finding of
fact that must be determined in each individual
case."); United States v. Chisholm, 73 F.3d 304,
307-08 (11th Cir. 1996) ("[E]vidence of a
conversion ratio must be considered before any
such ratio is applied."). A conversion ratio
includes two components. One is the percentage of
the powder cocaine that Mr. Gaughan could
reasonably foresee would be converted into crack.
The other is evidence of the percentage of weight
lost during the process of converting cocaine
into crack. See Hunter, 145 F.3d at 952; accord
Fox, 189 F.3d at 1120.
At times, the Government will be able to provide
evidence indicating that all of the powder
cocaine in a conspiracy was converted to crack
cocaine. See United States v. Taylor, 116 F.3d
269, 273-74 (7th Cir. 1997); United States v.
Misher, 99 F.3d 664, 671 (5th Cir. 1996)
("[T]here is evidence from which the court could
conclude that Cobb eventually converted all of
the powder to crack cocaine."). When the
Government cannot prove that all of the cocaine
was converted to crack, it must at least provide
some evidence of a conversion ratio to support
the district court’s finding. Furthermore, the
district court’s determination must be based on
reliable evidence, as the Guidelines require, and
not on impermissible speculation. See United
States v. Howard, 80 F.3d 1194, 1202 (7th Cir.
1996) ("We must be satisfied, however, that the
calculation is based on reliable evidence;
speculation and unfounded allegations will not
do.").
The Government, however, points to no evidence
suggesting a conversion ratio. Although the
Government has provided evidence that Mr. Gaughan
could foresee the conversion of some percentage
of the cocaine, it has offered no evidence
showing what percentage he expected would be
converted. It also has not provided testimony
regarding the percentage of cocaine lost in the
conversion to crack, which has been relied upon
in cases such as this one. See, e.g., Hunter, 145
F.3d at 952. We acknowledge that the district
court’s estimate of the conversion ratio was
conservative. However, because the district court
did not discuss the evidence supporting its
determination of the conversion ratio, we cannot
say that its finding was based on reliable
evidence and that it did not "’calculate drug
amounts by guesswork’" in contravention of the
Guidelines’ requirements. United States v. Beler,
20 F.3d 1428, 1433 n.2 (7th Cir. 1994) (quoting
United States v. Paulino, 996 F.2d 1541, 1545 (3d
Cir. 1993)). Consequently, we must remand to the
district court for resentencing. We emphasize
again that we do not disturb the district court’s
finding that Mr. Gaughan is responsible for 30
kilograms of cocaine; we vacate the sentence only
because the Government has not provided reliable
evidence of the conversion ratio foreseeable to
Mr. Gaughan.
Finally, Mr. Gaughan submits, by motion filed
after oral argument, that the decision of the
Supreme Court of the United States in Apprendi v.
New Jersey, 530 U.S. 466 (2000) makes his
sentence invalid. We cannot accept this argument.
According to 21 U.S.C. sec. 841(b)(1)(C), the
statutory maximum for an offense involving even a
small amount of cocaine is 20 years. See 21
U.S.C. sec. 841 (b)(1)(C). Mr. Gaughan’s sentence
of 235 months is below that statutory maximum and
therefore Apprendi does not apply.
2. Mr. Ford
(a)
The district court applied a two-level
supervisory enhancement to Mr. Ford’s sentence
under the Sentencing Guidelines. The Guidelines
provide for a two-level enhancement "[i]f the
defendant was an organizer, leader, manager, or
supervisor in any criminal activity." U.S.S.G.
sec. 3B1.1(c). "We have . . . affirmed
enhancements under section 3B1.1(c) if the
defendant was a key figure who coordinated and
organized the criminal activity, even if he did
not necessarily control another participant."
United States v. Granado, 72 F.3d 1287, 1290 (7th
Cir. 1995) (internal quotation marks and
citations omitted); see also United States v.
Bell, 28 F.3d 615, 617-18 (7th Cir. 1994)
(listing factors that distinguish "organizers and
leaders" from "rank and file criminals"). The
government must prove by a preponderance of the
evidence that an enhancement is warranted. See
United States v. Cain, 155 F.3d 840, 843 (7th
Cir. 1998); United States v. Watson, 189 F.3d
496, 502 (7th Cir. 1999). The district court’s
decision to enhance a sentence is reviewed for
clear error. See Cain, 155 F.3d at 843.
In this case, the record supports a finding that
Mr. Ford coordinated Mr. Stott’s activities.
Bonner testified that Mr. Ford introduced Mr.
Stott to him and that Mr. Ford told Bonner that
Mr. Stott would be meeting him to pick up drugs:
Q. And how did you happen to meet Larry [Stott].
What were the circumstances of that meeting, sir?
A. The circumstances of that meeting was he would
probably be meeting to purchase further drugs.
Q. That is Lonnie Ford?
A. Yeah, Lonnie brought him with him.
Q. And he introduced you to Larry?
A. Yes, he did.
Q. What did he tell you about Larry?
A. This was his guy.
Q. What else did he tell you?
A. That he would probably be coming back and
forth to pick up the drugs.
. . . .
Q. Approximately how many times did either Larry
or Lonnie come to your house?
A. About four times.
Q. And each time it was for what purpose, sir?
A. It was to pick up drugs.
Tr. at 301-02.
Bonner did offer potentially inconsistent
testimony on the subject of whether Mr. Stott was
merely a courier for Mr. Ford or, instead, a
customer in his own right. At trial, Bonner
testified that Mr. Stott was not a customer of
his, leaving an inference that Mr. Stott was Mr.
Ford’s courier. At Mr. Gaughan’s sentencing
hearing, however, when Bonner was asked who his
customers were, he answered "Lonnie Ford, Larry
Stott." Gaughan Sent. Tr. at 29. This, suggests
Mr. Ford, shows that Mr. Stott was a customer in
his own right. We do not necessarily view the
testimony as inconsistent; Mr. Stott could have
both transported cocaine on behalf of Mr. Ford
and purchased cocaine from Bonner for his own
use. Because there is evidence in the record that
Mr. Ford coordinated Mr. Stott’s activities for
some part of the conspiracy, we cannot say the
district court’s decision was clearly erroneous.
(b)
Mr. Ford also challenges the district court’s
drug quantity calculation. The district court
attributed to Mr. Ford 1.5 kilograms of crack
cocaine. That amount of crack mandates an offense
level of 38 pursuant to U.S.S.G. sec. 2D1.1(c).
With the supervisory enhancement, Mr. Ford’s
total offense level was 40. The Guidelines
mandate that a category V offender, such as Mr.
Ford, with an offense level of 40 be given a
sentence between 360 months and life
imprisonment; the district court sentenced Mr.
Ford to 360 months and then added a consecutive
60-month sentence for his sec. 924(c)(1)
conviction./18 On appeal, Mr. Ford challenges
only the district court’s drug quantity
calculation. Again, we review for clear error,
and we shall reverse only if we are left with the
firm and definite conviction that a mistake has
been made. See Galbraith, 200 F.3d at 1011.
The district court did not enter any specific
findings about the cocaine quantity attributable
to Mr. Ford. At Mr. Ford’s sentencing hearing, it
stated:
The Court does find by a preponderance of the
evidence that the cocaine that is attributable to
this Defendant was in fact cocaine base and for
purposes of this particular case, crack cocaine.
And that the amount of crack cocaine
attributable and foreseeable to this Defendant
was at least one and a half kilograms and more
likely than not a great deal more.
But at least 1.5 kilograms.
Ford Sentencing Transcript ("Ford Sent. Tr.") at
25. The Government makes two arguments to support
its contention that Mr. Ford is responsible for
over 1.5 kilograms of crack. The first is that
Mr. Ford converted to crack much of the cocaine
powder provided to him by Bonner. The second is
that Bonner provided to Mr. Ford cocaine that was
already in crack form. We consider these
contentions in turn.
First, Bonner offered testimony that supports a
finding that Mr. Ford converted to crack some of
the cocaine that Bonner provided to him. Bonner
testified that in 1997, approximately from April
to October, he provided cocaine to Mr. Ford. In
October, Bonner stated, Mr. Ford complained about
losing too much cocaine during the process of
converting it to crack. From that testimony, it
may be inferred that Mr. Ford converted some
cocaine to crack between April and October.
However, there is no reliable evidence indicating
the amount of cocaine converted to crack by Mr.
Ford. At Mr. Gaughan’s sentencing hearing, Bonner
acknowledged that he never saw Mr. Ford cook
cocaine into crack, that he did not know how Mr.
Ford cooked the cocaine and that he did not know
what amount of cocaine Mr. Ford was converting to
crack. The Government identifies no other
evidence that shows how much of the cocaine Mr.
Ford received from Bonner between April and
October was converted to crack. Although the
evidence indicates that Mr. Ford converted to
crack some of the cocaine he received from
Bonner, the Government was also obligated to
provide evidence of a conversion ratio. See
Hunter, 145 F.3d at 952. The Government’s failure
to provide evidence of a conversion ratio
precludes us from attributing to Mr. Ford any
specific amount of crack he cooked from cocaine
delivered by Bonner between April and October.
Turning to the Government’s second contention,
Bonner also testified that, after his October
conversation with Mr. Ford, he began to cook
cocaine into crack on his own before delivering
it./19 This testimony provides a more reliable
basis for determining the amount of crack
attributable to Mr. Ford. Bonner testified that,
in October, he delivered to Mr. Ford
approximately 500 grams of cocaine and that
approximately 75% to 80% of that amount--or 375
to 400 grams--was in crack form. Bonner testified
further that in the last meeting he had with Mr.
Ford prior to being arrested, he had with him 250
grams of cocaine, of which "over half"--or more
than 125 grams-- was crack. Gaughan Sent. Tr. at
37./20 Finally, at the time Bonner was
arrested, he had in his possession 403 grams of
crack that he planned to deliver to Mr.
Ford./21 Adding together these amounts, the
total amount of crack attributable to Mr. Ford
from Bonner’s testimony is at least 903 grams.
Thus, there is at least some evidentiary basis
for a finding that Mr. Ford’s criminal activities
involved 903 grams of crack.
We are concerned that neither the Government nor
the district court identified any other portion
of the record in which specific evidence is
offered to establish the amount of cocaine
attributable to Mr. Ford. The district court may
have engaged in impermissible speculation when it
relied on Bonner’s testimony to attribute to Mr.
Ford 1.5 kilograms of crack. However, for the
reasons set forth below, we are convinced that
any error committed by the district court in Mr.
Ford’s case was harmless.
According to the Sentencing Guidelines, the
appropriate base offense level for offenses
involving at least 500 grams of crack, but less
than 1.5 kilograms, is 36. Combined with his
supervisory enhancement, this would give Mr. Ford
a total offense level of 38, rather than the
total offense level of 40 determined by the
district court. However, for a category V
offender, the difference between the base offense
levels of 38 and 40 is irrelevant: Both offense
levels warrant a sentence of 360 months to life.
Mr. Ford was sentenced to 360 months, the minimum
for either offense level.
We believe that the best course on these facts
is to hold that any error by the district court
is harmless. We have stated
that where two Guidelines ranges overlap and the
sentence imposed would have been the same
regardless of which range was applied, the
technical dispute over which range to apply may
be left unresolved. As long as it is reasonable
to conclude that the same sentence would have
been imposed regardless of the outcome of the
dispute over which range to apply, we need not
resolve the dispute.
Frazier, 213 F.3d at 418 (internal citations
omitted); see also United States v. Howard, 179
F.3d 539, 545 (7th Cir. 1999). Here, although the
district court may have used the wrong offense
level, it used the correct sentencing range.
Further, it applied the minimum sentence. Thus,
we have confidence that, had the district court
sentenced Mr. Ford using the correct offense
level, it would have given him the same sentence.
Moreover, because 360 months is the minimum
Guidelines sentence for a category V offender who
commits an offense with a total offense level of
38, Mr. Ford would have nothing to gain by being
resentenced based on an attribution of 903 grams
of crack. Consequently, we affirm his sentence.
(c)
Finally, Mr. Ford submits, by motion filed after
oral argument, that Apprendi renders his sentence
invalid. As we have pointed out earlier, the
statutory maximum for an offense involving
cocaine is 20 years. That maximum increases to 30
years, however, if the offense is committed by a
person with a prior conviction for a felony drug
offense. Mr. Ford has such a conviction. Thus,
the statutory maximum for his current offense is
30 years, the sentence he actually received.
Accordingly, Apprendi does not apply.
Conclusion
For the reasons set forth above, we affirm the
three defendants’ convictions. Mr. Ford’s
sentence is also affirmed. Mr. Gaughan’s sentence
is vacated, and his case is remanded for
resentencing in conformity with this opinion.
AFFIRMED in part, VACATED and REMANDED in part
/1 Agent King’s testimony before the grand jury and
at trial differed on these events. The
discrepancies in his testimony are discussed in
Part II.A.2., infra.
/2 The indictment charged the defendants with the
following crimes:
Count I: (All defendants) Conspiracy to possess
with intent to deliver more than five kilograms
of cocaine, and to possess with intent to
distribute and distribute more than 50 grams of
cocaine base, Summer 1997-December 15, 1997, in
violation of 21 U.S.C. sec.sec. 841(a)(1) and
846, and 18 U.S.C. sec. 2
Count II: (All defendants) Possession with
intent to distribute more than 50 grams of
cocaine base, December 8, 1997, in violation of
21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2
Count III: (All defendants) Possession with
intent to distribute cocaine, December 8, 1997,
in violation of 21 U.S.C. sec. 841(a)(1) and 18
U.S.C. sec. 2
Count IV: (All defendants) Interstate travel in
aid of unlawful activity involving possession
with intent to distribute cocaine, December 8,
1997, in violation of 18 U.S.C. sec.sec. 1952 and
2
Count V: (Ford, Gaughan, Stott, Kulikowski)
Carrying a firearm during and in relation to a
conspiracy to possess with intent to distribute
cocaine and cocaine base, December 9, 1997, in
violation of 18 U.S.C. sec.sec. 924(c)(1) and 2
Count VI: (Gaughan, Kulikowski) Interstate
travel in aid of an unlawful activity involving
the possession with intent to distribute cocaine,
December 15, 1997, in violation of 18 U.S.C.
sec.sec. 1952 and 2
Count VII: (Gaughan, Kulikowski) Carrying a
firearm during and in relation to a conspiracy to
possess with intent to distribute cocaine,
December 15, 1997, in violation of 18 U.S.C.
sec.sec. 924(c)(1) and 2
/3 The case against Kulikowski also went to trial.
At the close of the Government’s case against
her, she moved for acquittal on all charges, and
the district court granted the motion.
/4 Mr. Gaughan had moved prior to trial to suppress
his statement on the ground that it was the
product of coercion by the interviewing officers
who had refused to provide him necessary medical
attention. After a suppression hearing, however,
the district court denied the motion.
/5 For that conviction, Mr. Stott received a
sentence of 60 months, the statutory maximum for
his offense.
/6 18 U.S.C. sec. 1952 provides in relevant part:
(a) Whoever travels in interstate or foreign
commerce or uses the mail of any facility in
interstate or foreign commerce, with intent to--
(1) distribute the proceeds of any unlawful
activity; or
(2) commit any crime of violence to further any
unlawful activity; or
(3) otherwise promote, manage, establish, carry
on, or facilitate the promotion, management,
establishment, or carrying on, of any unlawful
activity,
and thereafter performs or attempts to perform--
(A) an act described in paragraph (1) or (3)
shall be fined under this title, imprisoned not
more than 5 years, or both . . . .
/7 Mr. Gaughan, in his motion to suppress, also
forwarded other grounds to suppress his
statements. These bases, however, were abandoned
during the suppression hearing.
/8 Mr. Gaughan does not take issue with the plain
error standard in his reply brief.
/9 In an unpublished opinion, a panel of the Tenth
Circuit followed the same course. See United
States v. Johnson, No. 96-2008, 1997 WL 381926(10th Cir. July 7, 1997). In that case, the panel
decided that the evidence was not material,
meaning there could be no Brady violation even if
Brady did apply to suppression hearings. See id.
at *3.
/10 One of these two counts charged possession with
the intent to distribute more than 50 grams of
cocaine base. The other count charged possession
with the intent to distribute cocaine.
/11 The district court gave several instructions
concerning when one defendant may be liable for
the actions of other defendants. Among those
instructions was Court’s Instruction No. 56,
which states: "Any person who knowingly aids,
abets, counsels, commands, induces or procures
the commission of a crime is guilty of that
crime. However, that person must knowingly
associate himself with the criminal venture,
participate in it, and try to make it succeed."
R.295, Inst. 56.
/12 It is important to note that Mr. Ford’s challenge
addresses only the "in relation to" prong of sec.
924(c)(1), not the "uses or carries" prong.
Speaking to the "use" prong, the Supreme Court
has held that the "inert presence" or "storage"
of "a firearm, without more, is not enough to
trigger sec. 924(c)(1)." Bailey v. United States,
516 U.S. 137, 149 (1995). Accordingly, we have
reversed convictions where the record did not
convince us that the defendant used a firearm as
defined in Bailey. See, e.g., United States v.
Stanback, 113 F.3d 651, 654-57 (7th Cir. 1997)
(holding that a gun resting on a table where
drugs were present was not "used"); United States
v. Holmes, 93 F.3d 289, 293-96 (7th Cir. 1996)
(reversing conviction when jury might have relied
on evidence that did not show actual use). Here,
however, Mr. Ford does not challenge the jury’s
finding that he "used" or "carried" the gun, only
that his use was not "in relation to" his drug
crimes.
/13 At trial, counsel for Mr. Gaughan objected to the
propriety of any instruction based on Pinkerton
liability, stating, "And just Pinkerton generally
that shouldn’t apply. We just have a general
objection." Tr. at 715. The district court
overruled that objection. Mr. Gaughan’s counsel
raised a further complaint about having a
Pinkerton instruction, see id. 736-37, but the
district court again stated that it would give
the instruction. At neither time did Mr.
Gaughan’s counsel raise any objection to the form
of the instruction. In this court, Mr. Ford and
Mr. Gaughan do not argue that a Pinkerton
instruction was inappropriate.
/14 We are not willing to state that the instruction
is, as a matter of law, deficient. There may be
circumstances where, in combination with other
instructions, an instruction such as this one may
be adequate. However, such circumstances are not
present here.
/15 There does not seem to be any dispute, however,
that Mr. Gaughan knew that Bonner was
transporting cocaine across state lines using
interstate highways.
/16 Other circuits have agreed that, when a defendant
could foresee the conversion of cocaine to crack,
he properly may be held accountable for the
conversion. See United States v. Fox, 189 F.3d
1115, 1119 (9th Cir. 1999) (collecting cases),
cert. denied, 528 U.S. 1098 (2000).
\17 Mr. Gaughan claims that Bonner later contradicted
himself by testifying that Mr. Gaughan was
unaware that cocaine was being converted to
crack. We cannot accept this interpretation of
the record. Bonner’s later testimony indicates
only that Mr. Gaughan was not aware that it was
Bonner personally who was converting cocaine into
crack:
Q. So, that that person who was supplying you
with the powder didn’t know that you yourself
were making it into crack, right?
A. No.
Q. And is that--you agree with me?
A. Yes.
Q. That the person who was supplying you with
the powder did not know that you were making it
into crack?
A. No, he didn’t know what I was doing.
Tr. at 409-10. Bonner later clarified that Mr.
Gaughan did not know that Bonner personally was
converting cocaine into crack but that Mr.
Gaughan was aware that someone was converting
cocaine into crack:
Q. You were asked the question whether or not
Bob [Gaughan] knew that you were cooking crack
cocaine, and you said you--he didn’t, is that
correct?
A. Correct.
Q. Did he know that some of his crack cocaine--
some of his cocaine was going to be cooked into
crack?
A. Yes, he--he knew that.
Tr. at 479. None of the testimony identified by
Mr. Gaughan contradicts Bonner’s statements that
Mr. Gaughan was aware that some cocaine was being
converted into crack but was unaware that it was
Bonner personally who was undertaking the
conversion.
/18 18 U.S.C. sec. 924(c)(1) requires that all
defendants convicted of using or carrying a gun
in relation to a drug trafficking offense serve a
60-month sentence consecutive to their sentence
for the underlying drug trafficking offense.
/19 Specifically, Bonner offered the following
testimony:
Q. [D]id you take any other action in terms of
this problem with the crack cocaine?
A. Yes, I did.
Q. What did you do?
A. I started cooking it myself.
Q. And once you cooked it, what did you do with
it?
A. Then I would get it to my--Larry.
Q. Before that, you were basically just giving
them powder?
A. Yes.
Q. And now you’re giving them crack cocaine?
A. Yes.
Tr. at 311.
/20 Bonner testified that in the meeting previous to
that one he brought less than 250 grams; however,
he did not state the smallest amount he might
have brought. Bonner also could not state with
any certainty the number of other deliveries he
made to Mr. Ford.
/21 The police officer who arrested Bonner testified
that he found a bag of crack cocaine in Bonner’s
car. The defense stipulated that the amount found
in the bag was 403.7 grams.