United States v. James, Calvin

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1328, 07-1810 & 07-2208
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ALVIN JAMES, et al.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 285—J.P. Stadtmueller, Judge.
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A RGUED JUNE 3, 2008—D ECIDED S EPTEMBER 2, 2008
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Before K ANNE, SYKES, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. A federal jury convicted Ted
Robertson, Calvin James, and Jarvis King of conspiring
to distribute five kilograms or more of cocaine and 50
grams or more of cocaine base. See 18 U.S.C. § 2; 21 U.S.C.
§§ 841(a)(1), 846. The district court subsequently sen-
tenced Robertson and James to 360 months’ imprisonment
each, and King to life in prison. All three men challenge
their convictions on appeal, and James and King challenge
their sentences as well. We affirm.
2 Nos. 07-1328, 07-1810 & 07-2208
I. H ISTORY
In December 2004, a federal grand jury returned a one-
count indictment against 29 defendants, including Robert-
son, James, and King, alleging that they were members of
what was more widely known as the Cherry Street Mob—a
loosely organized, long-running drug-trafficking ring
that operated in the Lisbon Square neighborhood in the
west side of Milwaukee, Wisconsin. See 18 U.S.C. § 2; 21
U.S.C. §§ 841(a)(1), 846. Twenty-five of Robertson’s,
James’s, and King’s named co-defendants eventually
entered into plea agreements with the government. But
Robertson, James, and King each eschewed the idea of
pleading guilty, and elected to proceed to trial. At trial, the
government presented evidence of the three men’s partici-
pation in the Mob, including the testimony of nine of their
co-conspirators—Kevin Arnett, Corey Crook, Cameron
Gilbert, Joseph Gooden, Kinyater Grant, Marlon Hood,
Percy Hood, Dale Huff, and Lanell Taylor—and recordings
of wiretapped telephone conversations between several
members of the conspiracy. That evidence, which we
recount in a light most favorable to the government, United
States v. Gougis, 432 F.3d 735, 743 (7th Cir. 2005), revealed
the following:
Beginning in 1988, Robertson, James, and several of
their co-conspirators began selling small amounts of
powder cocaine near Cherry Street in Milwaukee’s
Lisbon Square neighborhood—a neighborhood that, at the
time, was transforming essentially into an open-air drug
market. At first, Robertson acted as the primary source
of cocaine for the group and recruited his friend, Huff,
Nos. 07-1328, 07-1810 & 07-2208 3
to sell drugs for him. But a few years after Robertson
enlisted Huff, Huff established himself as the primary
source of cocaine for the drug dealers operating in the
Cherry Street area.
The drug dealers decided to call themselves the Cherry
Street Mob, and worked to consolidate their efforts to
open and to maintain a series of drug houses; they also
eventually graduated from selling powder cocaine to
manufacturing and selling crack cocaine. Each of the three
defendants played an integral role in the consolidation of
the Mob’s presence in the neighborhood. James allowed
his mother’s home to be used as a drug house for Robert-
son, Huff, and others; worked in a series of drug houses
later established by Mob members; acted as a middleman
to broker drug deals between other members of the
Mob; and helped Mob members develop drug clien-
tele. Moreover, James developed a close relationship with
Huff, and in 2003 Huff employed James as a bodyguard. As
part of his duties, James accompanied Huff to deals with
the Mob’s suppliers, helped Huff run several drug houses,
and traveled to Texas with Huff to obtain large quantities
of cocaine to supply the organization.
Robertson, in turn, operated a series of drug houses
with a number of other members of the Cherry Street
Mob, including James and King. Robertson allowed
numerous members of the Mob to manufacture and to
package crack at these houses. And although Huff had
become the primary source of cocaine for the Cherry
Street area, Robertson also occasionally supplied the
drug to other members of the Mob.
4 Nos. 07-1328, 07-1810 & 07-2208
King was brought into the fold after the Cherry Street
Mob had been operating for nearly a decade, and he
began by working in drug houses run by Robertson and
his cousins, Percy and Marlon Hood. King later operated
a drug house with Robertson, and eventually began
operating and overseeing drug houses with, among other
co-conspirators, his cousin Percy. As part of this partner-
ship, King and Percy would pool their money to purchase
cocaine from Huff.
The Cherry Street Mob went through several periods of
fluctuation during its 16 years of operation. Several of
the Mob’s members—including Robertson, Huff, and
King—were occasionally arrested for various crimes and
sent to jail or prison for short periods of time; the men
would then resume their roles in the conspiracy upon
their release. The group also experienced some intra-
organizational discord over money, drug supplies, and
clientele. These disputes led to some drug houses dis-
banding, and sometimes led to violence; for instance, a
dispute led Robertson to “bust[ ] up” a drug house so
that others could not operate there, and a dust-up over
money led King to shoot Robertson in the foot with a
handgun.
But these occasional disruptions aside, each member of
the Cherry Street Mob depended on each other to a sub-
stantial degree. For the most part, each member would
obtain his or her cocaine from Huff or Robertson, and
would refer customers to other members’ houses if his or
her supply of crack was running low. Moreover, the
members depended on one another to defend the Cherry
Nos. 07-1328, 07-1810 & 07-2208 5
Street area against encroaching outside drug-dealers.
Robertson, James, King, and Huff, in particular, played
large roles both in protecting the Cherry Street territory
and in acting as enforcers for the Mob. In fact, Huff
hid firearms in various locations throughout the Cherry
Street area so Mob members would have easy access
to them in the event that violence erupted. Finally, the
members all worked to notify each other of the presence
of police officers in the area. King’s cousin, Marlon Wood,
best described the Mob members’ interdependency: “[W]e
all in the same conspiracy . . . we all working a big ball, like
I told you all, it seems like it’s a knot. Jarvis King, me, him,
Percy Hood . . . we did our thing. I messed with Ted
Robertson. [Percy] messed with Ted Robertson and
Calvin James. You know, Jarvis is my first cousin, so you
know, he family, so when we did something we was
doing it together.”
At the close of evidence, Robertson, James, and King
all moved for judgments of acquittal, arguing that the
evidence failed to establish that they participated in the
drug conspiracy. See Fed. R. Crim. P. 29(a). The district
court denied the motions, determining that the wiretap
evidence and the testimony of the three men’s co-con-
spirators was “more than sufficient to demonstrate the
existence of a conspiracy.” The court then submitted the
case to the jury, which subsequently found Robertson,
James, and King guilty. Shortly thereafter, the court
sentenced Robertson and James to 360 months’ imprison-
ment each, and King to life.
6 Nos. 07-1328, 07-1810 & 07-2208
II. A NALYSIS
On appeal, Robertson, James, and King all argue that the
district court erred by denying their motions for judg-
ments of acquittal because the evidence presented at trial
was insufficient to support their convictions. Each man
employs a different legal theory on this point, how-
ever. Robertson asserts that, although he had his own in-
dependent drug operation on Cherry Street, there was
no proof that he participated in the wide-reaching con-
spiracy alleged in the indictment. According to Robertson,
the evidence at trial showed that he participated in one
of many smaller conspiracies that competed against one
another in the Cherry Street drug market, and even used
violence against one another. Thus, Robertson argues,
there was a variance between his smaller conspiracy
proven at trial and the overarching single conspiracy
alleged in the indictment. See United States v. Womack, 496
F.3d 791, 794 (7th Cir. 2007) (“A conspiracy variance
claim is a challenge to the sufficiency of the
evidence . . . .”). James, in turn, contends that there was no
evidence showing that he knew of the conspiracy or
“provided some service” in furtherance of the conspiracy.
King similarly argues that, although he trafficked cocaine,
there was no evidence that he “knowingly adopted” the
conspiracy’s “common purpose.”
To prevail on appeal, Robertson, James, and King must
show that the court incorrectly concluded that there was
sufficient evidence to sustain their drug-conspiracy
convictions. See Fed. R. Crim. P. 29(a); see also United States
v. Bolivar, 532 F.3d 599, 603 (7th Cir. 2008). Although
Nos. 07-1328, 07-1810 & 07-2208 7
we review the district court’s decision de novo, see United
States v. Emerson, 501 F.3d 804, 811 (7th Cir. 2007), the
three men face a “ ‘nearly insurmountable’ ” burden when
challenging that decision, United States v. Jackson, 177 F.3d
628, 630 (7th Cir. 1999) (quoting United States v. Moore,
115 F.3d 1348, 1363 (7th Cir. 1997)); see also United States
v. Moses, 513 F.3d 727, 733 (7th Cir. 2007). Viewing the
evidence presented at trial in the light most favorable
to the government, we will overturn Robertson’s, James’s,
and King’s convictions only if “the record contains no
evidence, regardless of how it is weighed,” from which
the jury could have concluded beyond a reasonable doubt
that they were guilty of conspiring to traffic cocaine.
Gougis, 432 F.3d at 743-44 (internal quotation marks and
citation omitted).
Robertson’s, James’s, and King’s arguments all fail.
Robertson, in particular, cannot prevail on his contention
that there was a variance between his smaller conspiracy
proven at trial and the overarching single conspiracy
alleged in the indictment. In making his argument, Robert-
son ignores that, “ ‘[e]ven if the evidence arguably estab-
lished the existence of multiple conspiracies,’ ” the district
court nevertheless correctly denied his motion for a
judgment of acquittal “ ‘if a reasonable trier of fact
could have found beyond a reasonable doubt the existence
of the single conspiracy charged in the indictment.’ ”
Womack, 496 F.3d at 794 (quoting United States v. Williams,
272 F.3d 845, 862 (7th Cir. 2001)); see also United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991).
And there was ample evidence showing that the single
conspiracy charged in the indictment existed. Although
8 Nos. 07-1328, 07-1810 & 07-2208
the jury heard evidence detailing the intra-organizational
disruptions within the Cherry Street Mob, the jury also
heard a substantial amount of evidence describing how the
Mob worked as a single unit. Specifically, the evidence
detailed the formation of the Mob and outlined how its
members depended on one another to further their drug-
trafficking goals. For instance, each member (1) obtained
his or her cocaine largely from Huff or Robertson;
(2) would refer customers to other members’ drug houses
if his or her supply of crack was low; (3) depended on one
another to defend the Cherry Street area against encroach-
ing outside drug-dealers; and (4) would warn each other
of police presence in the area. As Marlon Wood testified,
the members were “all in the same conspiracy.” The jury
also heard evidence detailing Robertson’s participation
in that conspiracy. In fact, the evidence described
(1) Robertson’s role in the Mob’s formation; (2) how he was
the Mob’s initial source of cocaine, and later its occasional
source of the drug; (3) how he set up, worked in, and
oversaw drug houses in the Cherry Street area; and (4) how
he provided security from outside drug dealers and
police. And because the evidence clearly established that
Robertson acted to further the Mob’s collective drug-
trafficking operations, his challenge to the evidence
establishing the single conspiracy is meritless. See Womack,
496 F.3d at 795 (“The government was not required to
show that [the defendant] conspired with all of the previ-
ously indicted co-conspirators . . . . The government
needed only to prove that [the defendant] joined the
agreement alleged.”); Townsend, 924 F.2d at 1390 (“[I]f the
evidence indicates that a defendant must have known that
Nos. 07-1328, 07-1810 & 07-2208 9
his actions were benefitting a larger conspiracy, he may be
said to have agreed to join that conspiracy.”).
Equally meritless are James’s and King’s arguments that
the government introduced no evidence showing that they
knew of, or participated in, the conspiracy. To prove that
James and King were members of the conspiracy, the
government needed to show that the two men “embraced
the criminal objective of the conspiracy, that the conspiracy
continued towards its common goal, and that there were
co-operative relationships.” United States v. Gilmer, Nos.
06-3201 & 06-3250, slip op. at 9 (7th Cir. July 18, 2008); see
also United States v. Messino, 382 F.3d 704, 709 (7th Cir.
2004). And while examining James’s and King’s participa-
tion in the conspiracy, the critical inquiry “ ‘is whether the
factfinder [could have] reasonably conclude[d] from the
proof that [James and King] likely had some appreciable
ability to guide the destiny of the [cocaine].’ ” United States
v. Starks, 309 F.3d 1017, 1024 (7th Cir. 2002) (quoting United
States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978)); see also
Gilmer, slip op. at 9.
The government introduced ample evidence of James’s
and King’s participation in the drug conspiracy. Contrary
to James’s assertions, the government sufficiently estab-
lished that he both knew of the conspiracy and played a
role in it. The evidence introduced at trial showed that
James (1) played a central role in establishing the Cherry
Street Mob; (2) helped set up drug houses over the years
(including one in his mother’s home); (3) protected the
Mob’s territory through violence; and (4) acted as a body-
guard and enforcer for Huff—the Mob’s main supplier
10 Nos. 07-1328, 07-1810 & 07-2208
of cocaine. And although James’s role in the conspiracy
was not as central as, say, Huff’s or Robertson’s role, that
fact does not diminish the government’s evidence
showing that James played a role in establishing and
furthering the Mob’s drug-trafficking efforts. See Gilmer,
slip op. at 9 (“ ‘[O]ne need not be at the heart of the con-
spiracy to be part of its web.’ ” (quoting United States v.
Curtis, 324 F.3d 501, 506 (7th Cir. 2003))); United States v.
Miller, 159 F.3d 1106, 1109-10 (7th Cir. 1998) (“A defendant
need not know all of the co-conspirators or know the full
extent of the conspiracy to be convicted.”). The govern-
ment likewise established that King (1) worked in drug
houses run by Robertson; (2) later operated a drug house
with Robertson; (3) eventually began operating and
overseeing drug houses with, among other co-conspirators,
his cousin Percy Hood; and (4) obtained his cocaine supply
primarily from Huff. King also warned his co-conspirators
about police presence and worked to protect the Mob’s
territory from outside drug dealers. Based on the over-
whelming evidence of James’s and King’s roles in the
Mob’s drug enterprise, the jury could have easily con-
cluded that both men embraced the conspiracy’s objec-
tives, worked to continue the conspiracy, and cooperated
with each other to further the conspiracy, see Gilmer, slip
op. at 9; Messino, 382 F.3d at 709, and could have just as
easily found that the two men “ ‘had some appreciable
ability to guide the destiny’ ” of the cocaine in which
they trafficked, Starks, 309 F.3d at 1024 (quoting Staten,
581 F.2d at 883). James’s and King’s challenges to the
sufficiency of the evidence thus fail.
Nos. 07-1328, 07-1810 & 07-2208 11
In addition to their meritless arguments as to the suffi-
ciency of the evidence, James and King present a number
of additional arguments attacking their convictions
on other grounds and challenging their respective sen-
tences. But each of these arguments has been foreclosed
by decisions of the United States Supreme Court, has
already been rejected by us, or simply is frivolous. James’s
and King’s additional arguments thus do not warrant
further discussion. See United States v. Murray, 474 F.3d 938,
939 (7th Cir. 2007); United States v. Scott, 405 F.3d 615, 616
(7th Cir. 2005); see also Hall v. Bates, 508 F.3d 854, 858 (7th
Cir. 2007).
III. C ONCLUSION
We A FFIRM James’s, Robertson’s, and King’s convictions,
as well as James’s and King’s respective sentences.
9-2-08