United States v. Jenkins, Zachary

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 04-1176, 04-1177, 04-1231 & 04-2009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ZACHARY JENKINS, MERLIN COLEMAN,
KEVIN REED and ANTOINE HILL,
Defendants-Appellants.
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Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 236—Elaine E. Bucklo, Judge.
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ARGUED APRIL 13, 2005—DECIDED AUGUST 16, 2005
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Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. The FBI and the Joliet Police
Department, together with several other agencies, con-
ducted a narcotics investigation into a drug ring operating
in Joliet, Illinois. As a result of the investigation, Kevin
Reed, Zachary Jenkins, Merlin Coleman, and Antoine Hill
were charged with, among other things, conspiracy to dis-
tribute and to possess with intent to distribute in excess of
five kilograms of cocaine and in excess of 50 grams of
2 Nos. 04-1176, 04-1177, 04-1231 & 04-2009
cocaine base. Reed, who was the central figure in the con-
spiracy, pleaded guilty to the conspiracy charge and was
sentenced to 360 months in prison. Hill was convicted of
conspiracy and two counts of using a telephone to facilitate
the conspiracy, but was acquitted of a substantive count of
possession with the intent to distribute in excess of
500 grams of cocaine. Jenkins was convicted of conspiracy,
four counts of using a telephone to facilitate the conspiracy,
and the substantive counts of distribution of cocaine and
possession with the intent to distribute crack cocaine.
Coleman was convicted of conspiracy, three counts of using
a telephone to facilitate the conspiracy, and a substantive
count of possession with the intent to distribute crack co-
caine. Hill was sentenced to 360 months in prison, Jenkins
to 135 months in prison, and Coleman to 240 months in
prison. Hill appeals both his conviction and sentence,
Jenkins and Coleman appeal their convictions, and Reed
appeals his sentence.
I. Background
Kevin Reed was a large-scale cocaine dealer in Joliet,
Illinois. Jenkins and Coleman were two of Reed’s suppliers.
Hill collected drug proceeds for Reed and also attempted to
intimidate a potential witness against Reed. Several court-
authorized wiretaps, including one on Reed’s cellular phone,
allowed the government to monitor the activities of the drug
ring. On December 27, 2000, the government executed a
search warrant and seized 1,691 grams of crack cocaine
from the home of Reed’s girlfriend, Wendy Whennen.
Another search on August 3, 2001, resulted in a seizure of
over 18 grams of crack cocaine from the home of Jenkins’
girlfriend, Diedre Keys. Keys told police that the crack
belonged to Jenkins, and Jenkins later admitted to police
that the drugs were his.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 3
In March 2002, the FBI busted the drug ring. Reed was
arrested on March 13 and agreed to cooperate with author-
ities. Part of his cooperation was identifying a person who
was overheard on the wiretaps as Coleman and taking
police to Coleman’s house in order to arrest him. Jenkins
was also arrested and admitted to supplying Reed with
cocaine.
Reed entered a plea of guilty to the conspiracy count on
December 11, 2002. He eventually testified before the grand
jury, but later claimed that his grand jury testimony was
false. Reed did not testify at the trial of the other co-de-
fendants. On two occasions the government, without objec-
tion from Reed, filed motions to continue Reed’s sentencing
so it could determine its sentencing position with respect to
his level of cooperation and assistance. Ultimately, the
government decided not to make a motion for downward
departure based on substantial assistance. Reed then filed
a motion for specific performance, claiming that the govern-
ment promised that it would move for a downward depar-
ture of his sentence. The district court found that the
government did not make any such promise and sentenced
Reed to 360 months in prison.
Jenkins, Coleman, and Hill were tried before a jury in
July 2003. The government played 280 recorded telephone
calls that detailed the defendants’ extensive involvement in
the drug trade. Jenkins and Coleman were recorded dis-
cussing supplying cocaine to Reed, and Hill discussed his
role as an enforcer on behalf of the conspiracy, including
intimidating Reed’s girlfriend, who was a potential witness
for the prosecution. In addition to the recorded phone calls,
the prosecution called several of Reed’s associates to testify
about their involvement in buying cocaine from Reed and
reselling it. Jenkins and Coleman were convicted on all
counts, and Hill was convicted on the conspiracy and
telephone counts.
4 Nos. 04-1176, 04-1177, 04-1231 & 04-2009
II. Discussion
A. Joint Issues
The defendants (other than Reed) jointly challenge: (1)
the sufficiency of the evidence leading to their convictions
on the conspiracy count; (2) the district court’s refusal to
instruct the jury with regard to multiple conspiracies and
buyer/seller relationships; and (3) the admissibility of the
tape recorded calls from Reed’s telephone.
First, defendants argue that the evidence was insufficient
to support their convictions for conspiracy. In a challenge to
the sufficiency of the evidence, we view the evidence and all
reasonable inferences in the light most favorable to the
prosecution and will reverse only if no rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. United States v. Pree, 408 F.3d 855, 865
(7th Cir. 2005). This is a difficult burden, which the defen-
dants do not carry.
The government presented substantial evidence in the
form of recorded phone calls and eyewitness testimony
which depicted a long-term drug distribution network in-
volving Reed, Jenkins, Coleman, and Hill. The evidence
showed that the defendants repeatedly discussed the pos-
session and distribution of cocaine. Reed often spoke with
Jenkins and Coleman about his customers, and Jenkins and
Coleman spoke with Reed about their sources and also
occasionally fronted cocaine to Reed. The telephone calls
revealed Hill’s relationship to Reed as an enforcer and
detailed how he protected the conspiracy by intimidating
potential prosecution witness Wendy Whennen. A rational
jury could have found the defendants guilty of conspiracy.
Second, the defendants claim that the trial court erred by
failing to instruct the jury regarding multiple conspiracies
and buyer/seller relationships. They claim that Jenkins was
involved in a separate conspiracy with Reed and not the
larger conspiracy alleged in the indictment. They also argue
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 5
that the relationships between Reed and Jenkins and
between Reed and Coleman were merely those of buyer and
seller, not co-conspirators. We review the district court’s
refusal to instruct the jury on a theory of defense de novo.
United States v. Skoczen, 405 F.3d 537, 545 (7th Cir. 2005).
A defendant is entitled to an instruction on his theory of
defense only if: (1) the proposed instruction is a correct
statement of the law; (2) the evidence lends some support to
the defendant’s theory; (3) the theory of defense is not part
of the charge; and (4) the failure to include the instruction
would deny the defendant a fair trial. United States v.
Katalinich, 113 F.3d 1475, 1482 (7th Cir. 1997). The district
court determined that the evidence did not support defen-
dants’ theories regarding multiple conspiracies and the
existence of a mere buyer/seller relationship, and we agree.
As stated above, Reed often shared information about his
customers with Jenkins and Coleman. Jenkins and
Coleman also occasionally fronted cocaine to Reed and were
only paid after Reed’s customers paid him. This type of
long-term, interlocking relationship is not indicative of a
simple buyer/seller arrangement, nor does it support the
idea that Reed was involved in several smaller conspiracies
instead of one large conspiracy. The defendants were not
entitled to instructions on those theories.
Finally, defendants challenge the evidentiary foundation
for the tape-recorded conversations and also argue that
their admission into evidence violated their rights under the
Confrontation Clause as set out in Crawford v. Washington,
124 S.Ct. 1354 (2004). These arguments are without merit.
The government provided sufficient foundation for the ad-
mission of the tapes; they called witnesses familiar with
defendants’ voices, had them listen to the tapes, and the
witnesses identified defendants’ voices as those on the re-
cordings. Defendants’ challenge goes more to the weight of
the recordings than to their admissibility. To that end, the
defense had full opportunity to cross-examine the witnesses
6 Nos. 04-1176, 04-1177, 04-1231 & 04-2009
with respect to the extent of their familiarity with the
voices.
As to the Confrontation Clause argument, Crawford does
not apply. The recordings featured the statements of co-con-
spirators. These statements, by definition, are not hearsay.
Crawford did not change the rules as to the admissibility of
co-conspirator statements.
B. Jenkins’ Issues
Jenkins first claims that the evidence presented by the
prosecution was insufficient to sustain his conviction on the
cocaine distribution counts. As with the conspiracy count,
Jenkins does not meet the difficult burden placed on a
defendant making a sufficiency of the evidence challenge.
First and foremost, Jenkins admitted to police that it was
his cocaine that was found in Diedre Keys’ apartment, and
that he engaged in cocaine distribution. Also, the prose-
cution presented recorded phone calls between Jenkins and
Reed in which they discussed cocaine distribution,
and testimony from other associates regarding the cocaine
distribution conspiracy. Given this evidence, a rational jury
could convict on these counts.
Next, Jenkins argues that the trial court erred when it
denied his motion to identify and produce a confidential
informant (“CI”). We review for abuse of discretion.
United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994).
Jenkins failed to show a compelling need to identify the CI
that outweighed the public interest in non-disclosure.
Lastly, Jenkins challenges the district court’s evidentiary
ruling with respect to the statements made by his girl-
friend, Diedre Keys. Officer Vincent Humphrey testified
about the details of the search of Keys’ home. Part of his
testimony included statements Keys made to him regarding
the crack cocaine located in her kitchen. Jenkins argues
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 7
that these statements were hearsay and should not have
been admitted into evidence. We review for abuse of dis-
cretion. United States v. Bonty, 383 F.3d 575, 579 (7th Cir.
2004).
The testimony was not hearsay because it was not offered
to prove the fact that the cocaine belonged to Jenkins.
Officer Humphrey was asked on cross-examination about
whether he had read Keys her rights and about his police
report which stated that Keys told the police that “Jenkins
told her that she left a little something under the kitchen
cabinet.” Humphrey testified that Keys told him that
Jenkins had left the crack under the cabinet and explained
that the report contained a typo—that “she” should have
been written “he”. Jenkins’ attorney attempted to show,
through the inconsistency in the report and the fact that
Keys was given Miranda warnings, that the police actually
believed that the crack belonged to Keys. By doing so, he
took a risk and opened the door to Keys’ statements that
attributed the drugs to Jenkins. Her statements were
offered to show why the police did not believe the crack to
be hers and why she was not arrested. There was no abuse
of discretion in admitting the statements.
C. Hill’s Issues
First, Hill argues that the record does not support the
jury’s finding that he was a part of the cocaine distribution
conspiracy because the conspiracy ended when the police
seized crack cocaine from Wendy Whennen. This argument
is without merit. The charged conspiracy’s purpose was the
distribution of narcotics in the Joliet area. The fact that the
government seized 1,691 grams of crack cocaine from the
home of Reed’s girlfriend did not end the conspiracy. The
main criminal objective of the conspiracy had not been
abandoned after this single drug seizure. See United States
v. McKinney, 954 F.2d. 471, 475 (7th Cir. 1992). Also, Hill
8 Nos. 04-1176, 04-1177, 04-1231 & 04-2009
continued to assist the conspiracy in several ways, including
intimidating Whennen, a potential government witness.
The evidence sufficiently established Hill’s role as an en-
forcer in the drug conspiracy.
Second, Hill challenges the district court’s denial of his
motion to sever the possession with intent to distribute
count of the indictment. He argues that there was very little
evidence presented at trial that connected him to drugs, and
though he was eventually acquitted on the possession
count, the evidence presented to support it prejudiced the
jury with respect to the other charges. We review a denial
of a motion to sever for an abuse of discretion. United States
v. Smith, 308 F.3d 726, 736 (7th Cir. 2002).
The count at issue is of the same character and is based
on the same series of transactions as the other counts of the
indictment. FED. R. CRIM. P. 8(a). The evidence presented
in support of this count did not prejudice Hill. The overall
evidence showed that Hill was, in fact, involved in drugs.
Different people play different roles in a drug conspiracy, be
it supplier, lookout, courier, or enforcer. The indictment
charged, and the evidence showed, that Hill played the role
of an enforcer in this particular conspiracy. The fact that he
may not have had as much direct contact with the actual
distribution of cocaine as others does not mean that he was
not part of the overall conspiracy. Also, the fact that he was
acquitted on the possession with intent to distribute count
shows that the jury was able to give separate consideration
to the various counts of the indictment and the evidence.
The district court did not abuse its discretion in denying the
motion to sever.
Finally, Hill challenges his sentence on Sixth Amendment
grounds. The district court, operating prior to the Supreme
Court’s decision in United States v. Booker, 125 S.Ct. 738(2005), treated the Guidelines as mandatory and made find-
ings of fact that enhanced Hill’s sentence. This was error.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 9
We order a limited remand in accordance with the proce-
dure outlined in United States v. Paladino, 401 F.3d 471(7th Cir. 2005).
D. Reed’s Issues
Reed claims that (1) the prosecutor breached a promise to
seek a downward departure in his sentence in exchange for
his cooperation, which the district court failed to remedy;
and (2) his sentence violates Booker.
First, Reed contends that the government promised to
move for downward departure based on substantial assist-
ance if he helped to identify Coleman. The district court
determined that no such promise had been made. Disputes
regarding the terms of a cooperation or plea agreement are
questions of fact to be determined by the district court and
will only be reversed if they are clearly erroneous. See
United States v. Williams, 198 F.3d 988, 992 (7th Cir. 1999);
United States v. Daniels, 902 F.2d 1238, 1243 (7th Cir.
1990). The district court did not err by finding that the
government did not make any enforceable promise to Reed.
Reed acknowledged on three separate occasions that the
prosecution made no promises to him. He signed a proffer
letter which stated that there was no other promise existing
between himself and the government, he testified before the
grand jury that the prosecution had not made him any
promises about seeking a downward departure, and he
admitted at his plea colloquy that no oral promises had
induced him to plead guilty. Furthermore, the government
twice asked the district court to delay Reed’s sentencing so
that it could have more time to consider its position on
whether to move for a downward departure based on
substantial assistance, and Reed did not object. Logic
dictates that if there had been a promise made and some
sort of enforceable agreement reached, Reed would not have
agreed to these continuances. He would have objected,
10 Nos. 04-1176, 04-1177, 04-1231 & 04-2009
claiming that the government did not need additional time
as it had already promised to make the substantial assist-
ance motion.
Second, Reed takes issue with the trial judge’s decision to
impose a sentence based on a total adjusted offense level of
41 under the Sentencing Guidelines. The district court
determined that his base level was 38, but arrived at an
adjusted offense level of 41 after enhancements for being a
leader/organizer. Following the Guidelines, the judge sen-
tenced Reed to 360 months in prison. As with Hill, the
district court erred in treating the Guidelines as mandatory
and making findings of fact that enhanced Reed’s sen-
tencing range. We remand in accordance with Paladino.
E. Coleman’s Issue
Coleman maintains that the trial court erred when it
allowed testimony from FBI Special Agent Wayne Zydron
regarding statements made by another officer and Coleman
after they played a tape containing Coleman’s voice. After
taking Coleman into custody, Zydron advised him of his
rights, then played a tape which he believed contained
Coleman’s voice. After playing the tape, Zydron asked the
other officer whether he thought that the voice on the tape
was Coleman’s. The officer agreed that the voice was indeed
Coleman’s, at which point, Zydron testified Coleman hung
his head and said, “I’m fucked.”
Coleman never moved to suppress his statement at trial.
In fact, even after an inquiry by the trial judge as to
whether he was going to make a motion to suppress,
Coleman’s attorney declined to do so. By making this stra-
tegic choice, Coleman has waived the issue.
Nos. 04-1176, 04-1177, 04-1231 & 04-2009 11
III. Conclusion
We AFFIRM the convictions of Jenkins, Coleman, and Hill
and order a LIMITED REMAND with respect to the sentences
of Reed and Hill.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-05