United States v. Askew, Ulice

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2574
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ULICE ASKEW,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 37—Elaine E. Bucklo, Judge.
____________
ARGUED APRIL 6, 2004—DECIDED APRIL 5, 2005
____________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Ulice Askew challenges the suffi-
ciency of the evidence supporting his conviction under 21
U.S.C. § 846 for conspiracy to possess with intent to distri-
bute PCP. He argues that the only credible evidence against
him established one PCP spot purchase amounting to a
buyer-seller relationship only, not a conspiracy. Relatedly,
Askew argues that the district judge committed plain error
by failing to supply the jury with a buyer-seller instruction.
He also asserts that the judge failed to answer appropri-
ately the jury’s questions during deliberations about the
conspiracy count. His final ground for appeal alleges that
2 No. 03-2574
the judge committed plain error when she failed to suppress
evidence obtained through an unconstitutional stop that led
to his arrest. For the reasons discussed below, we affirm.
I. History
Christine Williams worked for Napoleon “Pokey” Moore
as a PCP distributor beginning in June 1999. Her relation-
ship with Moore ended in December 2001, when she was
arrested and agreed to cooperate with the FBI.
According to Williams, Askew was one of the customers to
whom she regularly sold PCP. Williams testified that her
business relationship with Askew began in the summer of
2000, after Moore directed her to sell PCP to Askew to “help
him get back on his feet.”1 Moore set the prices for the PCP
sold, often allowing Askew to pay a portion of the price,
with the remainder to be paid at the next buy. For a time,
Moore also charged Askew less for PCP than he charged
other customers. Williams believed Askew and Moore to be
“best friends.”
Williams sold PCP to Askew almost weekly between the
summer of 2000 and her arrest in December 2001. Askew
would contact either Moore or Williams to let them know
when he needed the drugs. Williams testified that Askew
purchased a total of sixteen ounces (453 grams) to twenty
ounces (566 grams) of PCP each month and that she would
typically make deliveries to his home on South Millard
Avenue in Chicago. According to the expert witness pre-
sented by the government, sixteen ounces, or one pint, of
PCP amounted to 10,000 to 20,000 individual doses.
On January 4, 2002, after her arrest and while in FBI
custody, Williams received a call from Askew. He intro-
1
Askew testified that he declared bankruptcy in 1999 following
release from prison for a non-drug-related felony.
No. 03-2574 3
duced himself as “Pokey[’s] guy” from “off Millard.” When
she asked him what he was “tryin’ to do,” he responded, “[A]
whole one.” Williams then said, “The whole one? . . . [Y]ou
usually get the half. What you talkin’ about a whole one?”
Askew responded, “You know[,] the two fours,” which
Williams understood to mean eight ounces of PCP. In an-
other call that same day, Askew told Williams that Moore
set the price of the purchase at a “stack,” or $1000.
At the FBI’s direction, Williams called Askew on January
9, 2002, and proposed that the buy take place at the Homan
Square Theater, located in a busy strip mall. Williams told
Askew that Moore said she could sell him a “pop” (sixteen
ounces of PCP) for $1300, which was a better price than
$1000 for an “eight” (eight ounces of PCP). Askew told
Williams that all he could come up with was $1100. As had
been done in the past, Williams proposed that he pay the
$1100 up front and supply the remaining $200 later. The
two agreed to meet at 11:00 A.M. that same day. Askew
informed Williams that she could find him in a white
Cadillac.
At 11:05 A.M., Williams called Askew to check on his sta-
tus. Askew stated that he had already been to the meeting
place and had just left. Williams, who was actually in the
Dirksen Federal Building with her FBI handlers in down-
town Chicago, represented that she was just arriving in her
car and asked him to turn around and meet her, which she
said should take “two or three minutes.” Askew agreed and
again indicated he could be recognized by the white Cadil-
lac. Shortly thereafter, Williams again called Askew to tell
him she had arrived and to determine his whereabouts.
Askew stated that he was in the parking lot and described
his location—“by that little red truck. Where that lady
walkin [sic].” When Williams protested that she could not
see him, he told her he was pulling out and was “in front of
the theater now” but in “another car.” The call then cut off.
4 No. 03-2574
All of these calls, beginning with the January 4, 2002,
contact and others, were recorded and played for the jury at
trial.
Unbeknownst to Askew, FBI agents and Chicago police
were positioned outside of the Homan Square Theater in
unmarked cars. The agents sitting with Williams four miles
away relayed, by radio, the content of her conversations
with Askew to the law enforcement officers attempting to
perform the arrest. The officers correctly identified a silver
Hyundai Accent as the car carrying Askew based on the
information provided by Williams through her handlers and
also due to the car’s suspicious maneuvers—it was circling
the lot as if its passengers were looking for someone. The
agents blocked the vehicle with theirs and, with guns
drawn, removed the occupants. Once Askew identified him-
self, they placed him under arrest and conducted a safety
search. The agents found $1189 in cash.
While in custody, Askew signed a confession stating that
in October 2001 he purchased one ounce (28 grams) of PCP
from Williams for $200 and resold it for $300. He also ad-
mitted to his unsuccessful attempts to purchase more PCP
from Williams in November 2001 and to his intent to buy
sixteen ounces of PCP from Williams the day of his arrest.
At trial, the government’s evidence consisted primarily of
Williams’s testimony, Askew’s confession, a pen register
showing that Askew called Williams eighteen times between
September 2001 and December 2001, and the recorded phone
calls between Williams and Askew. Askew testified in his
own defense and stated that he never, at any time, pur-
chased or intended to purchase PCP from Williams. Rather,
he claimed that he planned to buy stereo speakers (his
brother had previously testified the speakers were called
“pops”) from Williams the day of his arrest, which were to
be used to help promote his brother’s rap CD. He told the
jury that he met Williams through Moore, but that Moore
was a casual acquaintance that he had spoken to only three
times—once around 1989 at an album release party,
No. 03-2574 5
another time when he ran into him at a mall about twelve
years later in 2001, and again sometime in late 2001. During
the mall conversation, according to Askew, Moore put him
in touch with Williams because her nephew was interested
in the rap music industry. During the third conversation,
Askew said he and Moore discussed the speakers Askew
wanted to buy and that they worked out a package deal for
the purchase. Askew testified that he had only spoken to
Williams about five times in his life, and that she had never
been to his house. He also disavowed his written confession,
contending that he never even read it—he signed it only
because he was scared and was told that the confession
merely indicated his willingness to cooperate with the FBI.
The jury returned a verdict of guilty on all three counts
charged. The verdict form for Count I (the conspiracy count
and the only count at issue here) asked the jury to deter-
mine the amount of PCP attributable to Askew: one kilo-
gram or more; 100 grams but less than one kilogram; or less
than 100 grams. The jury chose the third option—less than
100 grams.
At sentencing, the district judge determined that 8,000 to
10,000 grams (eight to ten kilograms) of PCP was attrib-
utable to Askew on Count I. The judge also determined that
Askew lied at trial about his involvement with the PCP con-
spiracy and gave him a two-level enhancement for obstruc-
tion of justice. The district court sentenced him to 210 months’
imprisonment on the conspiracy count, to be served con-
currently with the sentences rendered on the other two
counts of the indictment.
II. Analysis
A. Sufficiency of the Evidence
Askew challenges the sufficiency of the evidence support-
ing his conviction on the indictment’s conspiracy count. His
sole argument relies on the jury’s decision, in rendering its
6 No. 03-2574
verdict, to attribute less than 100 grams of PCP to him. He
reasons that the jury, who heard Williams testify to selling
thousands of grams to Askew over a year-and-a-half period,
must have completely discounted her witness testimony and
accepted as true Askew’s confession that he purchased one
ounce (28 grams) of PCP. Otherwise, Askew argues, the jury
would have attributed far more PCP to Askew than it did.
Based on that premise, Askew asserts that we should follow
what he believes is the jury’s lead and review the record
sanitized of Williams’s testimony. The remaining evidence,
Askew posits, establishes not a conspiracy, but rather, at
most, a buyer-seller relationship premised on spot pur-
chases.
Because Askew’s sufficiency of the evidence appeal hinges
on our treatment of Williams’s trial testimony, we must
first determine whether, as Askew suggests, we should dis-
regard it based on the jury’s verdict. Askew’s issue is some-
what unique: most defendants challenging their convictions
because of verdict inconsistencies do so because they were
acquitted on some counts that would seem to require ac-
quittal on others of which they were found guilty, e.g.,
United States v. Conn, 297 F.3d 548, 557 (7th Cir. 2002)
(defendant acquitted on five counts of willfully dealing fire-
arms without a license but convicted on sixth), or because
they were convicted when co-defendants were acquitted
under the same evidence, e.g., United States v. Patterson,
348 F.3d 218, 224 (7th Cir. 2003) (defendant convicted on
conspiracy charge and alleged sole co-conspirator acquitted
on same charge). Askew’s verdict was not inconsistent
across counts (the jury found him guilty of all three) or as
to co-defendants (there were none). Instead, he argues that
the jury’s verdict on Count I was internally inconsistent—
that he could not have engaged in a conspiracy to distribute
PCP, as the jury found, if the amount of PCP attributed to
him was less than 100 grams, which the jury also found.
No. 03-2574 7
Regardless of how the apparent inconsistency in a jury’s
determination presents itself, it is well established that
“[i]nconsistent verdicts in a criminal case are not a basis for
reversal of a conviction or the granting of a new trial.”
United States v. Reyes, 270 F.3d 1158, 1168 (7th Cir. 2001)
(collecting authority). This is because the Supreme Court
has recognized that inconsistent jury verdicts may occur for
various reasons, including mistake, compromise, or lenity.
See United States v. Powell, 469 U.S. 57, 65 (1984). Here, we
do not know why the jury decided to attribute less than 100
grams of PCP to Askew, and neither does Askew. Any
attempt to discern the jury’s rationale for the verdict “would
be based either on pure speculation, or would require in-
quiries into the jury’s deliberations that courts generally
will not undertake.” Id. at 66; see also Gacy v. Welborn, 994
F.2d 305, 313 (7th Cir. 1993) (“One enduring element of the
jury system, no less vital today than two centuries ago, is
insulation from questions about how juries actually de-
cide.”). Because we assume that juries follow the law as
charged, because of our deep deference to the jury’s collec-
tive judgment, and because Askew is provided protection
from jury irrationality or error through an insufficiency
of evidence challenge, see Powell, 469 U.S. at 67-68, we de-
cline to resort to conjecture and assume, as Askew does,
that the jury found Williams’s testimony incredible. We are
bound to include her testimony in our review of the evi-
dence presented against Askew at trial, to which we now
turn.
When evaluating a sufficiency of the evidence challenge,
we view all the evidence and draw all reasonable inferences
in the light most favorable to the prosecution—a rigorous
standard. See United States v. Hicks, 368 F.3d 801, 804-05
(7th Cir. 2004). We will affirm the verdict if “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quotation omitted).
8 No. 03-2574
Conspicuously, Askew does not make the alternative
argument that even considering Williams’s testimony, the
jury did not have sufficient evidence to convict on the con-
spiracy count. Because Askew does not challenge his con-
viction based on the record as a whole, but rather relies on
a trial transcript figuratively excised of Williams’s testimony,
we could end our discussion of the sufficiency issue here.
Yet, in the interest of completeness, we note that our review
of the record, including Williams’s testimony, satisfies us
that the government presented the jury with sufficient
evidence to establish Askew engaged in a conspiracy with
Williams and Moore, not a mere buyer-seller relationship.
For Askew’s conspiracy conviction to stand, the govern-
ment needed to convince the jury that “(1) two or more
people agreed to commit an unlawful act and (2) the
defendant knowingly and intentionally joined in the agree-
ment.” United States v. Gardner, 238 F.3d 878, 879 (7th Cir.
2001). Proof of a drug distribution conspiracy, as opposed to
a simple buyer-seller relationship, includes evidence of a
prolonged and actively pursued course of sales, coupled with
the defendant’s knowledge of and shared stake in the illegal
venture. United States v. Contreras, 249 F.3d 595, 599 (7th
Cir. 2001). A list of non-dispositive factors considered when
assessing whether the alleged co-conspirators’ association
ripened into a conspiracy includes “whether there was pro-
longed cooperation between the parties, a level of mutual
trust, standardized dealings, sales on credit (‘fronting’), and
the quantity of drugs involved.” Hicks, 368 F.3d at 805.
Here, Williams testified that she sold Askew PCP on
Moore’s behalf almost weekly for a year and a half, resulting
in the exchange of thousands of grams of drugs. The trans-
actions were regulated by Moore, sometimes at below-aver-
age prices or volume discounts, and sometimes paid in part
by Askew, with the rest owing at the next purchase. From
this and other evidence—including the phone recordings
reflecting Askew’s familiar relationship with Williams and
No. 03-2574 9
Moore, the pen register revealing his eighteen calls to
Williams in a two-month period, Askew’s close friendship
with Moore that prompted him to help Askew “get back on
his feet” after his financial woes, and Askew’s signed con-
fession admitting to at least one consummated PCP deal—
a rational trier of fact could find that Askew and Williams
engaged in more than a buyer-seller relationship. Indeed,
a jury could conclude beyond a reasonable doubt that an
agreement to distribute PCP existed among Moore, Williams,
and Askew and that Askew willingly and intentionally
joined in the agreement.
B. Buyer-Seller Instruction
In line with his theory that the evidence established, at
most, a buyer-seller relationship, Askew challenges the
district judge’s failure sua sponte to supply the jury with an
instruction (a “buyer-seller instruction”) explaining that
repeated drug buys alone do not establish a conspiracy. Be-
cause Askew at no time requested a buyer-seller instruction
or objected to its omission, we review the judge’s failure to
include such an instruction for plain error. United States v.
Gee, 226 F.3d 885, 894 (7th Cir. 2000). To reverse a con-
viction under the plain error standard, we must find that
(1) an error occurred; (2) it was “plain,” meaning obvious or
clear; (3) it affected Askew’s substantial rights; and (4) it
seriously affected the fairness, integrity, or public repu-
tation of the judicial proceedings. United States v. Gibson,
356 F.3d 761, 765-66 (7th Cir. 2004); Gee, 226 F.3d at 894-
95. In other words, “[p]lain error must be of such a great
magnitude that it probably changed the outcome of the
trial.” United States v. Douglas, 818 F.2d 1317, 1320 (7th
Cir. 1987).
Our finding above that the jury had sufficient evidence to
convict Askew on the conspiracy count does not automa-
10 No. 03-2574
tically negate his claim that the judge committed plain error
in failing to provide the jury with a buyer-seller instruction.
See, e.g., Gee, 226 F.3d at 894-96 (finding that the jury had
sufficient evidence to convict on the conspiracy charge, but
reversing for failure to give a buyer-seller instruction);
United States v. Mims, 92 F.3d 461, 466 (7th Cir. 1996) (find-
ing ample evidence to support the conspiracy conviction, but
reversing because the judge gave a flawed buyer-seller
instruction). This is because the line between a buyer-seller
relationship and a drug conspiracy can be a blurry one. In
the former, the government seeks to punish the sale of the
drugs alone; in the latter, it seeks to punish criminal ob-
jectives beyond the sale itself—most typically, the parties’
agreement subsequently to distribute the drugs exchanged.
See United States v. Thomas, 284 F.3d 746, 751-52 (7th Cir.
2002). Evidence of repeated sales can be used to establish
both offenses, although in the case of a drug conspiracy, evi-
dence of repeated sales alone is not enough to support a
conviction. Rather, as already outlined above, in conspiracy
cases the jury must assess a host of factors—including
repeated sales—to determine whether an agreement beyond
the simple purchase of drugs exists. Hence, we have found
that “because the line between a conspiracy and a mere
buyer-seller relationship is difficult to discern, district judges
should instruct juries in appropriate situations on the dis-
tinction” and “inform juries that repeated transactions do
not constitute a conspiracy.” Gee, 226 F.3d at 895; see also
United States v. Thomas, 150 F.3d 743, 745 (7th Cir. 1998)
(“[T]he jury should be told that agreement—the crime of
conspiracy—cannot be equated with repeated transactions.
This is the office of the buyer-seller instruction. It reminds
juries that distribution of drugs is not itself conspiracy,
although a history of transactions may be evidence of con-
spiracy.”) (emphasis in original).
Askew argues that the district court committed plain
error in failing to realize that the evidence in this case ne-
No. 03-2574 11
cessitated a buyer-seller instruction to ensure that the jury
understood it could not convict on the conspiracy count
solely on the basis of repeated drug buys. In evaluating his
claim, we note that “[e]ach drug conspiracy case must be
analyzed according to its specific facts to determine whether
a buyer-seller instruction is appropriate.” Douglas, 818 F.2d
at 1321. “A defendant is entitled to a buyer-seller instruc-
tion only if the instruction has some foundation in the
evidence.” Id. In assessing the appropriateness of giving the
instruction, we also consider whether Askew put forth a
buyer-seller defense at trial. Id.; see also United States v.
Baker, 40 F.3d 154, 162 (7th Cir. 1994).
We first examine the evidence Askew offered at trial. It is
undisputed that Askew did not advance a buyer-seller
defense during trial. Instead, Askew’s strategy was to deny
any involvement whatsoever with illegal drugs. When he
testified in his own defense, he claimed to have been intro-
duced to Williams by Moore, whom he barely knew, because
Williams’s nephew was interested in the rap music industry.
He swore he never purchased or intended to purchase PCP
from Williams, despite strong evidence suggesting other-
wise, including: his signed confession admitting actual and
intended purchases, the recorded phone conversations with
Williams in which he made obvious attempts to purchase
something (he says stereo speakers, she says PCP), and his
arrest at the Homan Square rendezvous point carrying
nearly $1200 in cash—enough to purchase the sixteen ounces
of PCP offered by Williams for $1100 down with $200 owing.
Because Askew did not advance a buyer-seller theory of
defense, his case is distinguishable from Mims and Thomas,
two cases in which we reversed convictions based on mis-
sing or erroneous buyer-seller instructions. In both Mims
and Thomas, the defendants’ theories at trial were that
they were drug dealers/buyers, not drug conspirators. See
Mims, 92 F.3d at 463; Thomas, 150 F.3d at 744. They ad-
mitted their involvement in drug transactions, unlike Askew,
12 No. 03-2574
and they requested buyer-seller instructions, unlike Askew.
See Mims, 92 F.3d at 463-64; Thomas, 150 F.3d at 744. We
reversed when the district court gave a fatally flawed buyer-
seller instruction that was different than the one requested
by the defendant, Mims, 92 F.3d at 465-66, and when the
district court refused to give the instruction at all, Thomas,
150 F.3d at 745-46. We also note that in both cases, the evi-
dence against the defendants was weaker than that pro-
duced by the government here.
Although Askew’s choice not to adopt a buyer-seller de-
fense cuts in favor of finding no error in the district judge’s
decision not to give the instruction, we must still review the
evidence presented by the government to determine
whether it was such that a jury could confuse a buyer-seller
relationship with a conspiratorial one. For example, in Gee,
we determined that the district court committed plain error
when it failed to give the buyer-seller instruction sua sponte
because the court had explicitly recognized that the conspir-
acy evidence against the defendants was weak. 226 F.3d at
895. There, the district court refused to admit the govern-
ment’s proffered co-conspirator statements under Federal
Rule of Evidence 801(d)(2)(E), finding that the government
had not shown by a preponderance of the evidence that a
conspiracy existed between the defendants. Id. at 895 n.8.
Because of this, we reasoned, “[t]he district judge’s reserva-
tion about the proof of a conspiracy should have alerted him
to be certain that the jury correctly evaluated the evidence
before determining whether a conspiracy existed.” Id. at
895.
No similar reservations were expressed by the district
judge here, and rightly so, in light of the evidence presented
at trial. As already noted, Williams testified to almost weekly
sales of large quantities of PCP over a year-and-a-half
period, during which time she, at Moore’s behest, regularly
“fronted” Askew portions of the purchase. Moore agreed to
let Williams sell him large quantities of PCP at wholesale
No. 03-2574 13
prices so that Askew “could get back on his feet.” The logical
inference to be drawn from this evidence was that all three
agreed that Askew would purchase drugs from Moore through
Williams so that Askew could redistribute it at a profit.
This enabled Askew to pay off the amounts fronted to him
and “get back on his feet”; the arrangement also provided a
steady demand for Moore’s product. Such facts indicate a
conspiracy, not a simple buyer-seller relationship. The
strength of the government’s case, combined with Askew’s
choice not to present or argue any evidence tending to show
he was involved in a buyer-seller relationship only, leads us
to conclude that there was no clear error in not sua sponte
giving a buyer-seller instruction. See Baker, 40 F.3d at 162
(finding no error in refusing to give a theory of defense
instruction where nothing in evidence supported the
defense);United States v. Fort, 998 F.2d 542, 547 (7th Cir.
1993) (finding no error in not giving a buyer-seller in-
struction when the defendant chose to portray himself as a
mere bystander rather than a drug buyer because such an
instruction would have been inconsistent with his defense).
Moreover, considering the relative strength of the evidence
against Askew, we do not believe giving the instruction
would have changed the outcome of the trial, as required
under plain error review. The absence of that instruction,
therefore, did not affect Askew’s substantial rights and does
not warrant reversal.
C. Judge’s Response to Jury Questions
Askew also argues that the court, in response to written
questions forwarded by the jury during deliberations, failed
properly to supplement the jury instructions and make it
clear that events taking place after Williams agreed to co-
operate with the government could not be considered part
14 No. 03-2574
of the conspiracy agreement.2 But Askew has waived any
such objections because he explicitly agreed to the proposed
response to the jury’s first set of questions and, as to the
final questions posed by the jury, he actually suggested the
response provided by the court. See United States v. Lakich,
23 F.3d 1203, 1208 (7th Cir. 1994) (finding defendant waived
any argument that the court’s supplemental instruction was
erroneous because his attorney specifically stated that he
agreed to the instruction); see also United States v.
Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004) (“Waiver is the
intentional relinquishment or abandonment of a known
right, representing the manifestation of an intentional
choice[.]”) (internal quotations and citations omitted).
As reflected by the trial transcript, the jury first asked
the following questions, among others:
[I]n considering the quantity of drugs involved in an
alleged conspiracy, are we to consider evidence of trans-
actions prior to the Jan. 9 arrest of Askew?
***
The jury wants to know if it should consider evidence
up to and including the events of Jan. 9 in reaching a
2
Although a conspiracy terminates when one member agrees to
cooperate with the government, Thomas, 284 F.3d at 754 (noting
that if a party’s goal is “not to commit a crime but to expose one,
there [can] be no genuine agreement” supporting a conspiracy con-
viction), “one might still look to later events for clues about what
the nature of the relationship between [the alleged co-conspira-
tors] was prior to that date.” Id. at 755. Thus, the jury was
entitled to consider the phone calls between Askew and Williams
setting up the January 9, 2002, buy and the events surrounding
Askew’s arrest to clarify Askew and Williams’s relationship prior
to those events. The jury was not permitted, though, to use those
events to establish the elements of the conspiracy charge.
No. 03-2574 15
conclusion about the count one conspiracy, or does count
one only deal with evidence prior to those events?
The judge consulted with the attorneys about the appro-
priate response. During that conference, Askew’s attorney
stressed, “[M]y position is you should simply say to read the
indictment and the instructions. I think you are getting into
a place where you are telling them what to do other than
just read the instructions and read the indictment, and I
think that’s the Court putting itself in the process.” (Tr. at
361.) After further discussion, the judge stated: “I suppose
one other thing we can say is[,] ‘As to your other questions,
you may consider whatever evidence you think is appropri-
ate.’ ” (Tr. at 361.) The government agreed. Askew’s attorney
stated, “All right,” to which the judge responded, “That
would be alright?” Askew’s attorney answered, “Yes.” (Tr. at
362.) The judge then wrote the jury with the following
response: “Thank you for your notes. . . . With regard to
your remaining questions, you may consider whatever
evidence you think is appropriate.”
The final questions asked by the jury were as follows:
Does count one conspiracy charge apply only to the
period of “beginning in or about 2000 and continuing on
or about Dec. 16, 2000” as outlined in the indictment?
In deciding whether the defendant is guilty of count 1,
should the jury consider the events and evidence after
Dec. 16—or should the jury consider events and evi-
dence only up to Dec. 16 and not beyond? [emphasis in
original]
Askew’s attorney suggested the following response: “Just
reread the conspiracy instruction. You should tell them that.”
The judge responded, “Okay,” (Tr. at 370), and delivered the
following message to the jury: “In response to your question,
please reread the conspiracy instruction in your jury
instructions.”
16 No. 03-2574
Considering his conduct during the conferences with the
judge discussing the appropriate response to the jury’s ques-
tions, Askew has no basis for appeal now.3
D. Evidence Suppression
Askew argues that the $1189 seized after he was stopped
and searched by the FBI outside the Homan Street Theater
and the confession procured after his arrest should have
been suppressed because the initial stop was a seizure that
violated the Fourth Amendment. He states that the stop, in
which FBI agents blocked his vehicle with theirs and
ordered him out of the car with weapons drawn, constituted
a full arrest unsupported by probable cause. In the alterna-
tive, he argues that if the actions of the FBI can be char-
acterized as a Terry investigative stop, see Terry v. Ohio, 392
U.S. 1, 21 (1968), the FBI did not have reasonable suspicion
to perform the stop. We note at the outset that Askew failed
to challenge the FBI’s actions and the evidence discovered
before the district judge. Thus, we review the district court’s
admission of the evidence for plain error only. United States v.
Kincaid, 212 F.3d 1025, 1030 (7th Cir. 2000). Again, “[p]lain
3
We also note that at no time did Askew make the argument he
makes here, that the conspiracy instruction as originally given by
the court was inadequate, lacking clarification as to Williams’s
status as a government informant after her arrest and to its sig-
nificance in terms of the conspiracy charge. By taking the position,
in response to the jury’s questions, that the judge should direct
the jury to the conspiracy instruction already provided and by
requesting no clarifying language, Askew implicitly accepted the
conspiracy instruction as a complete and accurate statement
of the law. Thus, not only has he waived the argument that the
district judge failed to provide appropriate supplemental instruc-
tion to the jury, he has effectively waived the related argument
that the conspiracy instruction with which the jury was initially
charged was flawed in such a way as to warrant a new trial.
No. 03-2574 17
error review allows us to correct only particularly egregious
errors for purposes of preventing a miscarriage of justice.”
Id. (quotations omitted).
Under our Fourth Amendment jurisprudence, citizens can
be subjected to a full custodial arrest only if the arresting
officer has probable cause to detain them. “Probable cause
to arrest exists when a reasonably cautious and prudent
person would be justified in believing that the individual to
be arrested had committed, was committing or was about to
commit a crime.” United States v. Tilmon, 19 F.3d 1221,
1228 (7th Cir. 1994) (citing Wong Sun v. United States, 371
U.S. 471, 479 (1963)).
In addition, precedent teaches that law enforcement
officers may engage in brief investigative stops that need
not be supported by probable cause, but instead by reason-
able suspicion that the target has committed, is committing,
or is about to commit a crime. See Terry, 392 U.S. at 26;
United States v. Scheets, 188 F.3d 829, 837 (7th Cir. 1999)
(“Since the Supreme Court’s decision in Terry, it has been
established that a law enforcement officer may conduct a
brief, non-intrusive detention of a person if the officer has
specific and articulable facts sufficient to give rise to a
reasonable suspicion that the person had committed or is
committing a crime.”) (citations omitted).
The line between a lawful Terry stop and an unlawful
arrest is not bright, United States v. Vega, 72 F.3d 507, 515
(7th Cir. 1995) (citing United States v. Smith, 3 F.3d 1088,
1095 (7th Cir. 1993)), especially since we have “witnessed
a multifaceted expansion of Terry. . . . For better or for worse,
the trend has led to the permitting of the use of handcuffs,
the placing of suspects in police cruisers, the drawing of
weapons and other measures of force more traditionally
associated with arrest than with investigatory detention.”
Tilmon, 19 F.3d at 1224-25 (internal quotations and citation
omitted).
18 No. 03-2574
Based on the facts presented here, we find that the FBI
executed a constitutional Terry stop—not an arrest—in the
Homan Square Theater parking lot, even though the agents
blockaded Askew’s car and approached with guns drawn.
The agents’ show of force corresponded to their reasonable
suspicion that one of the people in the silver Hyundai was
Askew, who was preparing to commit a drug-related crime.
As we explain below, the inherent danger in stopping those
suspected of drug trafficking, for which guns are known tools
of the trade, in a public place where civilian lives might be
at risk, warranted the level of intrusion in this instance.
1. Reasonable suspicion
A finding of reasonable suspicion supporting a Terry stop
must be based on the totality of the circumstances presented
to the officer at the time of the detention. Scheets, 188 F.3d
at 837. “[T]he ‘totality of the circumstances’ encompasses
both ‘the experience of the law enforcement agent and the
behavior and characteristics of the suspect.’ ” Id. (quoting
United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995)).
Askew argues that his behavior the day of the stop could
not reasonably have alerted the officers that he, out of all
the people in the strip mall parking lot, was the individual
about to purchase PCP from Williams. He characterizes his
behavior as described by the FBI—riding in a car slowly
circling the lot—as innocently looking for a parking space,
like the many other patrons of Homan Square. He also
points out that although he told Williams he would be
arriving in a white Cadillac, he switched cars and was a
passenger in a car of a completely different make, model,
and color.
Yet Agent Benvenuto, the FBI agent in charge of the stop,
testified that he received information from Williams, a
cooperating witness, that Askew was to arrive at the
theater at 11:00 A.M. for the purpose of making a PCP buy.
No. 03-2574 19
While waiting for Askew to arrive, Agent Benvenuto was in
contact with Williams’s case agents, who were updating him
as to Askew’s whereabouts based on Williams’s contempora-
neous phone conversations with Askew. From these commu-
nications, Agent Benvenuto knew when Askew’s arrival was
imminent and that he was in a car, although not the white
Cadillac that Askew originally claimed he would be driving.
Agent Benvenuto, who was assigned to investigate drug
trafficking organizations, explained his decision to stop the
Hyundai Accent: “It has been [my] experience that when
you arrange a buy-bust for a certain location and then a car
arrives at that location driving in what I would describe as
a suspicious manner, clearly looking for someone in that
parking lot, it’s been my experience that that is the individ-
ual.” (Tr. at 114.)
The totality of the circumstances here firmly establishes
reasonable suspicion, if not probable cause, for the stop.
Although circling a parking lot looking for someone is most
certainly an innocent act, we have acknowledged that “a
pattern of behavior interpreted by the untrained observer
as innocent may justify a valid investigatory stop when
viewed collectively by experienced drug enforcement agents
like [Agent Benvenuto].” United States v. Lechuga, 925 F.2d
1035, 1039 (7th Cir. 1991) (quotation and citations omitted).
This is especially true, where, as here, the FBI were alerted
to Askew’s intent to commit a crime at the Homan Street
Theater by a trusted informant, Williams. Id. (“Taken to-
gether, the facts observed by [the officer], especially when
viewed in light of the prior tip he had received from a trusted
informant, amply suffice to establish reasonable suspicion
for the stop of [the defendant’s] car.”).
2. Degree of intrusion
Having decided that the initial stop was justified under
Terry, we must examine whether the manner in which it
20 No. 03-2574
was executed—car blocked, guns drawn—was “reasonably
related in scope to the circumstances which justified the in-
terference in the first place.” Vega, 72 F.3d at 515 (quota-
tion omitted). “We . . . have recognized that, because in-
vestigative detentions often pose a great risk of harm to the
police, the ‘mere use or display of force in making a stop
does not necessarily transform a stop into an arrest if the
surrounding circumstances give rise to a justifiable fear for
personal safety.’ ” United States v. Brown, 366 F.3d 456, 461
(7th Cir. 2004) (quoting Tilmon, 19 F.3d at 1226).
Drug arrests can warrant intrusive tactics because of their
inherent danger. “Guns are among the tools of the drug
trade[,]” United States v. Rhodes, 229 F.3d 659, 661 (7th Cir.
2000), and, thus, “[a]llowing police to draw their weapons
may be reasonable if the suspect . . . is thought to be in-
volved in criminal activity in which the use of weapons is
commonplace,” Tilmon, 19 F.3d at 1227 (quotation omitted).
Here, the FBI and the police assisting on the arrest believed
Askew to be part of a large PCP distribution ring. The ar-
rest took place late morning in a busy strip-mall parking
lot. Any attempt Askew might make to flee in the car or to
use weapons to aid in escape had the potential to harm large
numbers of innocent bystanders or the law enforcement
officers attempting to execute the arrest. Therefore, the FBI
acted reasonably in neutralizing Askew by surrounding his
car and approaching with weapons drawn. See, e.g., Vega,
72 F.3d at 515 (“The agents who stopped and questioned
[the defendant] believed that he was involved in a massive
cocaine importation conspiracy. They had every reason to
believe that he was dangerous. Certainly it was reasonable
for the agents to have their weapons drawn upon their ini-
tial contact.”); Lechuga, 925 F.2d at 1040 (noting the ex-
pansion of Terry to include circumstances where weapons
are drawn and vehicles are blocked in order to effectuate
the stop) (collecting authority).
No. 03-2574 21
We find the Terry stop lawful based on the particular
circumstances of this case and, therefore, the judge did not
commit any error, plain or otherwise, in allowing evidence
collected as a result of the stop to be presented to the jury.
E. Askew’s Sentence
One final matter we must address is the effect of the re-
cent Court decision in United States v. Booker, 125 S. Ct. 738
(2005), on Askew’s sentence. In Booker, the Court reaffirmed
the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000),
and extended its principles to the federal Sentencing
Guidelines, holding that “[a]ny fact (other than a prior con-
viction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”
Booker, 125 S. Ct. at 756. In its remedial holding, the Court
excised the mandatory provisions of the Guidelines. See id.
at 757. As a result, district courts now have the discretion
to sentence outside the ranges set in the Guidelines, and we
review these sentences for reasonableness. See id. at 765-
66.
Askew failed to raise in the district court an Apprendi-
based objection to his sentence, but following argument, we
granted Askew leave to file a supplemental brief raising
such a challenge in light of Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 375 F.3d
508 (7th Cir. 2004). Accordingly, we review for plain error.
As discussed earlier, “[u]nder [the plain error] test, before
an appellate court can correct an error not raised at trial,
there must be (1) error, (2) that is plain, and (3) that af-
fect[s] substantial rights.” United States v. Cotton, 535 U.S.
625, 631 (2002) (citation and internal quotation marks
omitted). “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error,
22 No. 03-2574
but only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id.
The record discloses that Askew received a sentence man-
dated by the Guidelines and increased on the basis of facts
found by the judge, not the jury—in other words, Askew’s
sentence was imposed under a sentencing scheme that we
now know is unconstitutional. Askew’s sentence, therefore,
was imposed in error, and the error is plain. See United States
v. Paladino, No. 03-2296, 2005 WL 435430, at *7 (7th Cir.
Feb. 25, 2005). We cannot determine, however, whether
Askew would have received the same sentence had the
district court been free to exercise the broad sentencing dis-
cretion now afforded in the wake of Booker. In short, we are
unable to resolve whether Askew’s substantial rights were
affected when he received a sentence imposed under the
mandatory Guidelines regime.
As we concluded in Paladino, the “only practical way . . .
to determine whether the kind of plain error argued in
these cases has actually occurred is to ask the district
judge.” Paladino, 2005 WL 435430, at *10. To that end, we
“order a limited remand to permit the sentencing judge to
determine whether he would . . . reimpose his original sen-
tence.” Id. If the district court determines that Askew would
have received the same sentence, we will conclude that
Askew was not prejudiced, and his plain error challenge
must fail. We will then affirm the original sentence, pro-
vided it is reasonable. See id. (citing Booker, 125 S. Ct. at
765).
On the other hand, if the district court decides that a dif-
ferent sentence would have been appropriate pursuant to its
exercise of greater discretion, “we will vacate the original
sentence and remand for resentencing.” Paladino, 2005 WL
435430, at *10. Regardless of whether the district court
decides to resentence Askew, the court should abide by the
process we set forth in Paladino to provide an appropriate
explanation for its decision. See id.
No. 03-2574 23
III. Conclusion
Because we find no merit in any of the arguments Askew
raises on appeal, his conviction is AFFIRMED. As to Askew’s
sentence, however, we order a limited remand of this case
in accordance with the remedial procedure adopted by this
circuit in Paladino. The district court is directed to return
this case to us at the completion of its sentencing determi-
nation, pursuant to the procedure set forth in Paladino.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-5-05