United States v. Thompson, Anthony ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-4019, 99-4074, 99-4279, 99-4280,
99-4281, 99-4283 & 99-4296
United States of America,
Plaintiff-Appellee,
v.
Anthony Thompson, Stephanie Johnson,
Anthony D. Spradley, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP-98-38-CR-01-13-M/F--Larry J. McKinney, Chief Judge.
Argued June 4, 2001--Decided April 9, 2002
Before Ripple, Evans, and Williams, Circuit
Judges.
Williams, Circuit Judge. In this case,
we are presented with former participants
in a drug conspiracy who raise a myriad
of challenges to their convictions and
sentences. We affirm in all respects
except we remand for the resentencing of
two defendants because the district court
erred by applying U.S.S.G. sec.
2D1.1(d)(1), the drug offense murder
cross reference, to their sentences. We
also, in affirming the district court,
adopt the Tenth Circuit’s view of waiver,
see United States v. Cherry, 217 F.3d 811
(10th Cir. 2000), and approve the
admission of the testimony of a murdered
co-conspirator when the murder was
reasonably foreseeable to other
conspirators.
I. BACKGROUND
Defendants Willie Boddie, Stephanie
Johnson, Dennis Jones, Anthony Spradley,
Anthony Thompson, Ellis Walker, and Mark
White were charged with crimes arising
out of their participation in a large,
Indianapolis-based drug conspiracy. The
conspiracy reigned from 1992 to 1997 and
involved the trafficking of hundreds of
kilograms (kilos) of cocaine, the
accumulation and laundering of
substantial profits, and two short-lived
business pursuits. The conspiracy seemed
invincible until November 1996, when
Marcus Willis, working on behalf of law-
enforcement officials, arrived on the
scene. He worked for law enforcement for
approximately eight months (through June
of 1997) until he was murdered in one of
the defendant’s vehicles. Not long after
his murder, charges were filed against
each of the defendants and several others
not part of this appeal.
Count 1 of the indictment charged each
defendant with conspiracy to distribute
more than five kilograms of cocaine (21
U.S.C. sec. 846). Counts 2-3 charged
defendants Spradley and White with murder
of an informant (18 U.S.C. sec.
1512(a)(1)(C)), and counts 5-6 charged
Jones with assisting in that murder (18
U.S.C. sec.sec. 1512(a)(1)(B), (C)) and
(18 U.S.C. sec.sec. 1111(a), 1113).
Johnson was charged under counts 8, 9,
16, and 17 for substantive money
laundering and conspiracy to launder./1
At trial, the government relied heavily
on the testimony of several
coconspirators who agreed to cooperate
with the government in exchange for
leniency. There was little physical
evidence of the drug conspiracy, but the
testimonial evidence, for the most part,
was overwhelming, and the jury convicted
all the defendants, except Johnson, of
drug conspiracy. As to the Marcus Willis
murder, the alleged eye-witnesses,
unindicted coconspirator William Cox and
defendant Mark White, could not agree on
who actually murdered Willis and neither
of their stories could be corroborated.
We assume that this inconsistency led the
jury to acquit Spradley, Jones, and White
of the murder-related charges. Finally,
as to Johnson’s money laundering charges,
the government presented evidence that
she allowed several defendants to
purchase vehicles, homes, and motorcycles
in her name to conceal the identity of
the true owners and the illegal source of
the purchase funds. Based on this
evidence, the jury convicted her of
substantive money laundering and
conspiracy to launder.
The district court sentenced Spradley,
Boddie, Jones, and White to life
imprisonment on the drug conspiracy count
pursuant to sec. 2D1.1 of the Sentencing
Guidelines after concluding that the
conspiracy trafficked in more than five
kilos of cocaine and that the sec.
2D1.1(d)(1) murder cross reference was
applicable to Spradley, Jones, and White.
These same defendants, including Boddie,
were also sentenced to 20 years’
imprisonment for their money laundering
counts--to run consecutive to their life
terms. Walker was sentenced to 327 months
and Thompson to 210 months on the drug
conspiracy count. Johnson was sentenced
to four 59-month sentences for the money
laundering convictions, to be served
concurrently. The defendants now appeal
their convictions and sentences on a
number of grounds.
II. ANALYSIS
A. Murder Cross Reference (U.S.S.G.
sec.2D1.1(d)(1))
Spradley, Jones, and White challenge the
district court’s application of the drug
offense murder cross reference, sec.
2D1.1(d)(1). This cross reference directs
judges to apply the First-Degree Murder
Guideline, sec.2A1.1, if the defendant’s
relevant conduct includes the killing of
a victim under circumstances that would
constitute premeditated murder as defined
by 18 U.S.C. sec. 1111. United States v.
Meyer, 157 F.3d 1067, 1073 (7th Cir.
1998). The defendants do not challenge
the district court’s factual findings,
but argue that its findings are
insufficient to support the application
of the cross reference. Reviewing their
challenges de novo, see United States v.
Hunt, 272 F.3d 488, 496 (7th Cir. 2001),
we agree that the findings are
insufficient as to Jones and White, but
disagree as to Spradley.
1. The cover-up
As the defendants state in their opening
brief, "[t]he district court’s findings
of fact relevant to the death [of Marcus
Willis] represent a meticulous and
objective assessment of the facts as the
court found them." So we quote a large
portion of the findings here rather than
rewriting them.
The evidence is that Marcus Willis
was found fatally shot in the late
evening or early morning hours of
Friday/Saturday June 27/28, 1997.
Dennis Jones was arrested while
driving a Yukon automobile into the
parking lot at Mobile Jamzz on Key
stone Avenue in Indianapolis on
Monday, June 30, 1997. The operator
of Mobile Jamzz was contacted by a
person identified as Demarco to
arrange for an appointment for
repair. The call was made on
Saturday morning, June 28, 1997. The
repair was scheduled for Monday,
June 30, 1997. That Yukon was the .
. . same Yukon which White had been
seen operating on many occasions and
was generally identified as White’s
vehicle. Forensic evidence was
presented establishing that the
blood of Marcus Willis was present
in that vehicle. At the time of
Jones’ arrest, the front passenger
seat had been removed, the carpet on
the passenger side had been cut out,
and there was damage to the left
side of the front windshield of the
vehicle . . . .
The evidence also reveals that
some of the remains of a left front
seat used in Yukon automobiles of
the same year and model as this
one, and some seat belt parts were
found by police later in a fire pit
in the back yard at
[coconspirator’s] Dwayne Gibson’s
detail garage on Caroline [Street].
Carpet knives, along with the boxes
in which they were purchased, were
found by police in the garage. Car
pet samples from the Yukon carpet
were found on the knives. Glass
fragments consistent with the
windshield glass of the Yukon were
found on the floor of the Caroline
garage. Blood samples were obtained
from the overhead door at Caroline
and from the floor of the garage.
These samples were matched with
Marcus Willis’ blood. Gibson later
led law enforcement to the place
where he had tossed the floor mats
from the Yukon. The blood of Marcus
Willis was found on those mats. . . .
The district court then stated that this
physical evidence was consistent with
Keith Cork’s and Gibson’s trial testimony
about the attempted coverup of the
murder. Among other things, both
testified that Spradley orchestrated the
coverup, directed Jones to drive the
Yukon, and Gibson to follow Jones to
Mobile Jamzz. They further testified
that, as Jones was being apprehended by
police in Mobile Jamzz’s parking lot,
Gibson fled to another location and
called Spradley to alert him of the
arrest.
The court chose not to credit Jones’s
testimony as to what occurred before his
arrest on the morning of June 30, in part
because it could not be corroborated.
Jones testified that he was with
Stephanie Johnson in a hotel room that
morning and that Gibson paged him between
9:00 and 10:00 a.m., after which Johnson
took him to meet Gibson. He further
testified that Gibson gave him $20.00 to
drive the Yukon to Mobile Jamzz. Johnson,
however, told police that she had not
been with Jones that morning and produced
an employment record showing that she
clocked into work that day at 8:30 a.m.
Based on this evidence, the district
court concluded that Willis was murdered
in White’s Yukon, and that Spradley and
Jones, among others, tried to cover up
the murder.
2. Application of the murder cross
reference
The district court inferred from
Spradley’s, Jones’s, and White’s
participation in the cover-up that they
knew Willis had been murdered by someone
as a result of his informant activities,
which threatened to expose the
conspiracy. The attempt to cover up the
murder, the district court concluded, was
done in furtherance of the goals of the
conspiracy and in an attempt to avoid
detection. Because relevant conduct
includes any action "that . . . occurred
. . . in the course of attempting to
avoid detection or responsibility for
that offense," see U.S.S.G.
sec.1B1.3(a)(1), the court thought the
sec.2D1.1(d)(1) murder cross reference
should be applied to each of these
defendants./2
According to these defendants, the
district court’s findings are
insufficient to support application of
the cross reference. The Guidelines
define relevant conduct as activities
that occurred "in the course of
attempting to avoid detection or
responsibility for [the] offense [of
conviction]." U.S.S.G. sec.
1B1.3(a)(1)(B). Therefore, they argue, it
was inappropriate for the district court
to base its application of the cross
reference on their cover-up activities
because their offense of conviction is a
drug-trafficking conspiracy, not
murder./3
We disagree with the defendants’
characterization of the district court’s
ruling. A fair reading of the court’s
order makes clear that it found that the
cover-up activities were committed at
least in part to avoid detection of the
conspiracy. For example, the district
court links the defendants’ cover-up
activities to the conspiracy when
rejecting Spradley’s objection to the
Guideline application: "Spradley’s role
in the clean-up and his knowledge that
Willis was giving evidence to the police
support the inference that Spradley was
aware that Willis had been murdered in an
attempt to keep Willis from doing any
further damage to the cocaine
conspiracy." Similar language is used
regarding defendants Jones and White.
Therefore we believe that the district
court did not treat the murder as the
defendants’ offense of conviction.
However, the defendants’ argument
highlights another potential problem with
the district court’s ruling--the
possibility that section 2A1.1’s
premeditation requirement (see U.S.S.G.
sec. 2A1.1, cmt. n. 1) may have been lost
in the application of the several
Guideline provisions at play here. We
remanded a case recently because a
district court failed to make a specific
finding of premeditation. In that case,
United States v. Thomas, 280 F.3d 1149
(7th Cir. 2002), the district court
applied the First-Degree Murder Guideline
to a defendant convicted of firearm-
related convictions. Several facts relied
upon by the district court seemed to
connect the defendant (Thomas) to the
murder of Armando Leal: Thomas was
arrested while driving Leal’s vehicle;
Leal was likely murdered in that vehicle;
Thomas pawned a pistol owned by Leal; and
Leal’s blood was found in Thomas’s
driveway. But the district court did not
discuss how these facts showed that
Thomas murdered Leal with malice
aforethought. Id. at 1158. The inference
of premeditation was not the only one
that could be drawn from those facts (for
example, Thomas could have driven away in
Leal’s car after Leal had been murdered
by someone else) so we remanded for the
district court to make a specific finding
of premeditation. Id. at 1156-57.
Here, the district court found that
Spradley, Jones, and White knew of the
murder and that it was committed in
furtherance of the conspiracy. In so
doing, the court apparently invoked
Guideline sec.1B1.3(a)(1)(B), which
holdsdefendants accountable at sentencing
for the reasonably foreseeable relevant
conduct of their coconspirators as long
as the conduct was done in furtherance of
the conspiracy. Because this additional
Guideline is in play, the question we are
presented with is slightly different than
that presented in Thomas. The question
here is whether it was reasonably
foreseeable to Spradley, Jones, and White
that Willis could be killed, with malice
aforethought (premeditation), in
furtherance of the conspiracy. See
U.S.S.G. sec. 1B1.3(a)(1); sec. 2A1.1.
After thoroughly reviewing the court’s
ruling, we believe that it made findings
sufficient to support application of the
First-Degree Murder Guideline to
Spradley, but not to Jones or White. We
now focus our discussion on whether
Willis’s murder was reasonably
foreseeable to each defendant.
a. Spradley
The district court found that Spradley
knew Willis had been murdered to keep him
from relaying any more information to
law-enforcement authorities. It based its
findings, in part, on evidence that
Spradley knew about Willis’s informant
activities. Coconspirator Keith Cork
testified at trial that several days
before Willis’s murder, he and Spradley
confronted Willis about rumors that he
had been talking to the police. Cork’s
testimony was corroborated by a statement
to the same effect made by Willis to
police on June 20, 1997, approximately
ten days before the murder. In addition,
Cork testified that Spradley, in a
meeting about Willis’s informant
activities attended by several conspiracy
members, said that he would not let
anyone hurt them.
We believe that this evidence
sufficiently supports the conclusion that
it was reasonably foreseeable to Spradley
that Willis would be murdered with malice
aforethought. Spradley knew that Willis
was likely to be murdered in an attempt
to prevent him from further exposing the
conspiracy, which satisfies the test of
reasonable foreseeability. Therefore the
district court did not err by applying
the First-Degree Murder Guideline to
Spradley. See United States v. Walker,
142 F.3d 103, 114 (2d Cir. 1998).
b. Jones
We have more difficulty concluding that
the Guideline was properly applied to
Jones. We do not think the fact that
Jones lied to the police about his
whereabouts on the morning of June 30th
and his participation in the cover-up,
taken together, are sufficient to support
the inference that it was reasonably
foreseeable to him that Willis would be
murdered with malice aforethought. These
facts tell us nothing about whether Jones
had reason to know that someone in the
conspiracy was likely to murder an
informant.
"Reasonable foreseeability is the
divining rod of the relevant conduct
sentencing provision," United States v.
DePriest, 6 F.3d 1201, 1212 (7th Cir.
1993) (internal citation omitted),
therefore, "the burden of proving
foreseeability under the circumstances of
each individual case [rests] squarely on
the government." United States v.
Sandoval-Curiel, 50 F.3d 1389, 1393 (7th
Cir. 1995). Here, the government has not
met its burden. We have been willing to
assume that carrying of weapons is
foreseeable to most drug conspiracy
members, in light of the violent nature
of the drug business. See, e.g., id. But
even with this presumption of violence,
we still require the government to prove
that the conspiracy’s actions were
foreseeable to each defendant to whom it
seeks to impute relevant conduct. See id.
The government attempted to prove
foreseeability by introducing evidence of
conspiratorial violence, which we discuss
in more detail later. The government’s
evidence of random, non-fatal acts was
not sufficient to meet its burden of
proving foreseeability. Only one act the
government points to actually resulted in
an injury, and there was no evidence that
this conspiracy had previously involved
the murder or attempted murder of
informants (or anyone else for that
matter). This is simply not enough
evidence. Without some better indication
that Jones had reason to know that the
conspiracy was likely to kill informants,
we have no basis for concluding that the
premeditated murder of Willis was
reasonably foreseeable to him. Cf. United
States v. Diaz, 176 F.3d 52, 99-100 (2d
Cir. 1999) (holding the murder of a
bystander in the commission of attempted
murder of another was reasonably
foreseeable because the conspirators had
agreed to the attempted murder); United
States v. Brooks, 957 F.2d 1138, 1149
(4th Cir. 1992) (holding the use of
firearm was foreseeable to conspirator
who himself had been threatened at
gunpoint by other conspirators around the
time gun was used). Therefore, we believe
the district court erred by applying the
First-Degree Murder Guideline to Jones.
However, we do not think it necessary to
remand for the district court to make
additional findings. The court has
already recognized in its order that
"there is no evidence that this
conspiracy had [ ] ever engaged in
murder." Accordingly, we vacate the
district court’s imposition of a life
sentence to Jones based on the
application of the First-Degree Murder
Guideline and remand for the
recalculation of his sentence.
c. White
For similar reasons, we believe that the
district court erred by applying the
First-Degree Murder Guideline to White.
The court based its application of the
Guideline to White on the fact that he
lied about his whereabouts on the morning
of/after the murder and that he
participated in the cover-up./4 From
these two facts, it concluded that White
knew that Willis had been murdered in
White’s sports utility vehicle and that
the murder was committed in furtherance
of the conspiracy. As our analysis of
Jones’s challenge suggests, these facts
are insufficient. The fact that White
knew that Willis had been murdered does
not tell us whether the murder was
reasonably foreseeable to him. And it
certainly does not tell us whether it was
reasonably foreseeable to him that Willis
would be murdered with malice
aforethought. There is also no indication
that the conspiracy had previously
engaged in murder or attempted murder. We
need more of an explanation to judge
whether the inference can be made from
these facts that Willis’s premeditated
murder was reasonably foreseeable to
White, but as is the case with Jones, we
think that a remand for additional
findings is unnecessary. Instead, we
remand for resentencing consistent with
our ruling.
B. Hearsay Statements
Pursuant to Federal Rule of Evidence
804(b)(6), the government sought to admit
several hearsay statements made by
murdered informant Marcus Willis. Rule
804(b)(6) exempts from the hearsay ban
statements made by a declarant whose
unavailability the defendant directly or
indirectly procured. The government
alleged before the district court that
some of the defendants (Spradley, White,
Boddie, Jones, and Walker) affirmatively
participated in Willis’s murder or its
cover-up. Based on the government’s
proffer, the district court admitted the
hearsay statements against these
defendants. The government then argued
that the actions of Spradley, White,
Boddie, Jones, and Walker should also
permit application of Rule 804(b)(6) to
the remaining defendants because Willis’s
murder was within the scope and committed
in furtherance of the drug conspiracy,
and was reasonably foreseeable to each of
the conspirators. Drawing on the
coconspirator liability rationale first
espoused in Pinkerton v. United States,
328 U.S. 640 (1946), the district court
admitted the hearsay statements against
those defendants that did not
affirmatively participate in the murder
or its cover-up.
Both groups of defendants challenge the
admission into evidence of Willis’s
statements. Those defendants alleged by
the government to have participated in
Willis’s murder or its cover-up argue
that the district court misapplied Rule
804(b)(6) and violated their
confrontation rights pursuant to the
Sixth Amendment. Reviewing their Rule
804(b)(6) challenge for abuse of
discretion, see United States v. Hunt,
272 F.3d 488, 494 (7th Cir. 2001), and
Confrontation Clause challenge de novo,
United States v. Ochoa, 229 F.3d 631, 637
(7th Cir. 2000), we conclude that any
error made by the district court was
harmless. The second group of defendants,
those who did not affirmatively
participate in the murder or cover-up,
argue that the district court erred by
admitting the statements against them
based on an extension of Pinkerton.
Employing the same standards of review,
we reject their challenges as well.
1. Waiver of hearsay and confrontation
clause objections
A defendant may waive his right to
object on hearsay and Confrontation
Clause grounds to the admission of out-
of-court statements made by a declarant
whose unavailability he intentionally
procured./5 United States v. Dhinsa,
243 F.3d 635, 653 (2d Cir. 2001); Ochoa,
229 F.3d at 639; Fed. R. Evid. 804(b)(6)
(exempting from the prohibition against
hearsay "statements offered against a
party that has engaged or acquiesced in
wrongdoing that was intended to, and did,
procure the unavailability of the
declarant as a witness"). The primary
reasoning behind this rule is obvious--to
deter criminals from intimidating or
"taking care of" potential witnesses
against them. But the rule is also
grounded in principles of equity. See
United States v. White, 116 F.3d 903, 911
(D.C. Cir. 1997) ("The defendant who has
removed an adverse witness is in a weak
position to complain about losing the
chance to cross-examine him."); see also
Graham, The Right of Confrontation and
the Hearsay Rule: Sir Walter Raleigh
Loses Another One, 8 Crim. L. Bull. 99,
139 (1972), cited in United States v.
Carlson, 547 F.2d 1346, 1359 (8th Cir.
1976); United States v. Mayes, 512 F.2d
637, 650 (6th Cir. 1975). Admission of
the witness’s statements at least
partially offsets the benefit the
defendant obtained by his misconduct. See
White, 116 F.3d at 911.
a. Spradley, Jones, White, Boddie, and
Walker
Spradley, Jones, White, Boddie, and
Walker argue that the district court
erred by concluding that their participa
tion in the cover-up of Willis’s murder
amounted to waiver. Their arguments here
are similar to their objections to the
application of the First-Degree Murder
Guideline. For example, they argue that
their intent to procure Willis’s
unavailability cannot be inferred from
their participation in the cover-up of
the murder.
While our analysis of the First-Degree
Murder Guideline might suggest that the
district court erred in its admission of
Willis’s hearsay statements against these
defendants, we will not disturb their
convictions if admission of the hearsay
statements was harmless error. Ochoa, 229
F.3d at 639-40. Harmless errors are those
errors that did not contribute to the
verdict. Hunt, 272 F.3d at 496. Based on
our review of the trial record, we
conclude that the admission of Willis’s
statements falls within this category of
errors. We reach this conclusion because
the government presented overwhelming
evidence of the defendants’ guilt;
Willis’s statements were not very
important to the government’s case; and,
to the extent the statements were
important, they were cumulative. See
Hunt, 272 F.3d at 496 (listing these and
other concerns as part of the harmless
error analysis).
The government’s case against each of
the defendants was overwhelming. The
government obtained the cooperation of
several conspirators who provided highly
incriminating testimony. Keith Cork, for
example, testified that the conspiracy
trafficked in more than 500 kilograms of
cocaine. As Spradley’s assistant, he was
familiar with the drug activities of each
of the defendants. His testimony detailed
the inner-workings of the conspiracy and
the defendants’ roles within it. Other
cooperating witnesses, Robert Johnson,
for example, also testified as to the
depth and breadth of the conspiracy’s
drug activities and of his personal
interaction with the defendants as a mid-
level dealer in the organization. In
addition, evidence of the many numerous
expensive cars that conspiracy members
purchased in Stephanie Johnson’s and
other individuals’ names was introduced
at trial. There was evidence that large
amounts of cash (over $350,000 dollars)
had been seized from Spradley, Jones, and
others during the pendency of the
conspiracy--cash that was never
reclaimed. Taken together, these facts
are more than sufficient to support the
jury’s verdict. See United States v.
Brown, 934 F.2d 886, 890 (7th Cir. 1991).
Given this overwhelming evidence, it is
highly unlikely that Willis’s marginally
inculpating statements had any impact on
the jury’s findings. Willis’s statements
described uncompleted drug transactions,
detailed some of the conspiracy’s money
laundering activities, and put names to
faces and owners to vehicles. For
example, Willis told law enforcement
officials that conspirator Cox, who is
not part of this appeal, drove a vehicle
originally rented in California. This
evidence, along with other testimony,
helped show a potential link between the
conspiracy and a California supplier. But
this link was not critical to the
government’s case; there was plenty of
evidence of the conspiracy’s other
suppliers. Beyond this, the bulk of
Willis’s statements consisted of matching
license plate numbers with drivers, and
describing money wires and the purchase
of money orders. This sort of evidence
did not directly prove the existence of
the drug conspiracy, but was probative of
certain defendants’ money laundering
charges that are not part of this appeal.
Defendants argue that Willis’s
statements must have been important to
the government’s case because the
prosecutor relied heavily on them in
closing arguments. They fail to take into
account, however, that the only reason
the government mentioned the statements
was to remind the jury that they had been
corroborated by other evidence presented
at trial. Therefore, we decline to hold
that the statements mentioned by the
government in closing arguments were
important to its case.
Finally, those aspects of Willis’s
statements that were arguably important
to the government’s case were cumulative.
For example, Willis told law enforcement
officials that he watched Spradley
oversee the transfer of two kilos of
drugs from one vehicle to another. This
same incident was testified to by
coconspirator William Cox, who described
the transaction in much greater detail.
Accordingly, we hold that any error in
the admission of Willis’s statements was
harmless./6
b. Coconspirator waiver
For those defendants who did not
participate in Willis’s murder or its
cover-up (Stephanie Johnson and Anthony
Thompson), the government urges us to
follow United States v. Cherry, 217 F.3d
811 (10th Cir. 2000). Cherry holds that
if a murder is reasonably foreseeable to
a conspirator and within the scope and in
furtherance of the conspiracy, the
conspirator waives his right to confront
that witness just as if he killed the
witness himself. Although we believe that
Cherry is well-reasoned, we find
thatWillis’s murder was not reasonably
foreseeable to these defendants. But
because admission of the statements was
harmless, the error does not require
reversal.
i. United States v. Cherry
The Tenth Circuit’s decision in Cherry
involves three main points. We summarize
them briefly and explain why we find them
persuasive. First, coconspirator waiver
is consistent with waiver-by-misconduct
jurisprudence. Several waiver-by-
misconduct cases recognize the
possibility of imputed waiver, although
none ruled explicitly on the question. In
Olson v. Green, 668 F.2d 421 (8th Cir.
1982), the Eighth Circuit noted that
someone acting on a defendant’s behalf
may waive his hearsay and Confrontation
Clause objections. Id. at 429. Also, one
of the Supreme Court’s early waiver-by-
misconduct cases (not cited in Cherry)
contains similar language, saying that
waiver may be "actual or imputed." Snyder
v. Com. of Mass., 291 U.S. 97, 106
(1934).
Coconspirator waiver fits within the
federal rules’s codification of the
waiver-by-misconduct rule as well. Under
Rule 804(b)(6), a defendant who
"acquiesces in conduct intended to
procure the unavailability of a witness"
waives his hearsay objection. We agree
with the Tenth Circuit that, by using the
term "acquiesce," the drafters of Rule
804(b)(6) expressed an intent to allow
for the imputation of waiver. See Cherry,
217 F.3d at 816. This makes sense because
acquiescence itself is an act. See
Webster’s Third New Int’l Dictionary 18
(1986) (defining acquiesce as "to accept
or comply tacitly or passively"). And
when that act is done intentionally and
voluntarily it is no less valid as a
means of waiver than the decision to more
directly procure the unavailability of a
witness by, for example, murdering a wit
ness oneself.
Second, coconspirator waiver strikes the
proper balance between protecting a
defendant’s confrontation rights and
preventing witness tampering. See Cherry,
217 F.3d at 820. Without a rule of
coconspirator waiver, the majority of the
members of a conspiracy could benefit
from a few members engaging in
misconduct. Such a result is at odds with
the waiver-by-misconduct doctrine’s
equitable underpinnings. Cf. White, 116
F.3d at 911.
Third, as a practical matter, "[i]t
would make little sense to limit
forfeiture of a defendant’s trial rights
to a narrower set of facts than would be
sufficient to sustain a conviction and
corresponding loss of liberty." Cherry,
217 F.3d at 818. Pinkerton established
the rule that a defendant may be held
liable for acts committed by her
coconspirator that were within the scope
and in furtherance of the conspiracy, and
were reasonably foreseeable to her. See
Pinkerton, 328 U.S. at 647; see also
United States v. Sandoval-Curiel, 50 F.3d
1389, 1392 (7th Cir. 1995). Under this
rule, a defendant may be held criminally
responsible for any act committed in
furtherance of the conspiracy, including
acts taken to prevent apprehension. See
United States v. Williams, 81 F.3d 1434,
1439 (7th Cir. 1996); United States v.
Nowak, 448 F.2d 134, 139 (7th Cir. 1971).
Witness tampering is one example of these
sorts of acts, see, e.g., United States
v. Maloney, 71 F.3d 645, 661 (7th Cir.
1995), and, of course, can constitute
waiver-by-misconduct.
Not only do we agree with the reasoning
of the majority in Cherry, but the
dissent in Cherry does not persuade us to
reject coconspirator waiver. The dissent
primarily focuses on the idea that mere
membership in a conspiracy should not be
sufficient to establish waiver. Accord
United States v. White, 838 F. Supp. 618
(D.D.C. 1993) aff’d, 116 F.3d 983 (D.C.
Cir. 1997). We agree with this
proposition and believe that it is
inherent in our holding--for waiver to be
imputed to a conspirator, the conduct
resulting in the witness’s unavailability
must have been committed in furtherance
of the conspiracy, within its scope, and
reasonably foreseeable to the
conspirator. Cf. Williams, 81 F.3d at
1441 (engaging in particularized
foreseeability inquiry). In addition, the
Cherry dissent’s reliance on a quote from
Olson v. Green that states that
constitutional rights are "personal to
the accused" is unavailing. That phrase
was first iterated by the Eighth Circuit
in United States v. Carlson, 547 F.2d
1346 (8th Cir. 1976), to make the point
that a defendant may not revive at trial
through his counsel a right he
previously, "personally" waived. Id. at
1359, n. 11. The Carlson court’s use of
the phrase does not express a disapproval
of imputed waiver.
To the extent that the Cherry dissent’s
reliance on the phrase "personal to the
accused" communicates a concern that the
imputation of waiver will result in the
unintentional waiver of defendants’
rights (compare Johnson v. Zerbst, 304
U.S. 458, 464 (1938) ("[F]or waiver to be
effective, it must be intentional.") with
Sandoval-Curiel, 50 F.3d at 1392 ("A
defendant is responsible for a
substantive offense committed by his
coconspirators . . . even if the
defendant does not have knowledge of
it.")) we believe that the formulation of
the rule we adopt today will insure that
the conspirator’s waiver meets this
constitutional standard. By limiting
coconspirator waiver-by-misconduct to
those acts that were reasonably
foreseeable to each individual defendant,
the rule captures only those conspirators
that actually acquiesced either
explicitly or implicitly to the
misconduct.
Finally, the act of misconduct in this
case is not relevant to our waiver
inquiry. There is a possibility that the
specific intent requirement necessary to
support a conviction for first-degree
murder will be lost in of the application
of Pinkerton to the waiver context. Cf.
Clark v. Louisiana State Penitentiary,
694 F.2d 75, 78 (5th Cir. 1982) (express
ing concern that jury inappropriately
convicted conspirator of first-degree
murder under Pinkerton based solely
oncoconspirator’s intent). There is no
cause for concern, however, because (in
those cases that involve premeditated
murder) the specific intent requirement
is captured by the reasonable
foreseeability qualification. Waiver may
be imputed only to those conspirators to
whom it was reasonably foreseeable that
another conspirator would engage in
premeditated murder in furtherance and
within the scope of the conspiracy.
Accord United States v. Tse, 135 F.3d
200, 206-07 (1st Cir. 1998) ("If [the
conspirator] possessed the requisite
intent when he entered into the
conspiracy then all foreseeable crimes
committed by the conspiracy can be
attributed to that intent."). It is also
conceivable that some cases will involve
non-premeditated murder, in which
circumstance there is no specific intent
requirement./7 See Haas v. Abrahamson,
910 F.2d 384, 399 (7th Cir. 1990)
(internal citation omitted).
In sum, a defendant who joins a
conspiracy risks many things--e.g. the
admission of his coconspirator’s
statements at trial under Federal Rule of
Evidence 801(d)(2)(E), the potential
conviction for substantive offenses
committed in furtherance of the
conspiracy, and the inclusion of his
coconspirator’s acts in the computation
of his relevant conduct at sentencing. We
see no reason why imputed waiver should
not be one of these risks, particularly
when the waiver results from misconduct
designed to benefit the conspiracy’s
members. For these reasons and the others
expressed above, we follow the Tenth
Circuit’s decision in Cherry and hold
that the waiver-by-misconduct of one
conspirator may be imputed to another
conspirator if the misconduct was within
the scope and in furtherance of the
conspiracy, and was reasonably
foreseeable to him.
ii. The Cherry rule applied
However, we conclude that Marcus
Willis’s murder was not reasonably
foreseeable to Stephanie Johnson and
Anthony Thompson. There is no evidence
that these defendants knew or had reason
to know that an informant would be
murdered. Cf. United States v. Romero,
897 F.2d 47, 51-52 (2d Cir. 1990)
(holding that conspirators could be held
criminally liable for coconspirator’s
assault and attempted murder of a federal
officer "[g]iven the ammunition spread
around the apartment, the precautions
[two of the conspirators] took to ensure
the informants were neither armed nor
police, and the stationing of [one
conspirator] as an armed triggerman in
the closet."). As we noted in our
discussion of the First-Degree Murder
Guideline, there is no evidence that this
conspiracy had previously engaged in
murder or attempted murder. Therefore, we
find that Willis’s murder was not
reasonably foreseeable to either of these
defendants.
C. Apprendi Violations
All the defendants, except Johnson,
challenge their sentence based on the
rule established in Apprendi v. New
Jersey, 530 U.S. 466 (2000), that any
fact (other than a prior conviction) that
increases the sentence beyond the
statutory maximum must be submitted to
the jury and proven beyond a reasonable
doubt. The defendants claim that the
district court erred by failing to submit
drug quantity to the jury because drug
quantity determines the maximum sentence
under 18 U.S.C. sec. 841(a). See United
States v. Nance, 236 F.3d 820, 825 (7th
Cir. 2000) (holding that it is Apprendi
error not to submit drug quantity to the
jury). Because the defendants did not
object below, plain error is the
appropriate standard of review. Id. To
succeed on plain error review, the
defendants must show that a jury would
not have been able to find that the
conspiracy distributed over five kilos of
cocaine, the amount necessary to support
the sentences imposed by the court. See
id. at 826. Based on the evidence
presented at trial, the defendants cannot
make that showing.
The vast majority of the testimony from
which the jury could conclude that a
conspiracy existed among these defendants
involved transactions amounting to over
five kilos. For example, Terrence Pierce,
a buyer who was not indicted for his role
in the conspiracy, testified that he
witnessed Spradley purchase 15 kilos from
a supplier. Keith Cork, a coconspirator
who pled guilty, interpreted drug ledgers
found in Spradley’s trash to indicate
that, at one point, Spradley had 20 kilos
to sell, and he testified that the
conspiracy dealt in hundreds of kilos.
James Douglas, a customer, testified that
Boddie delivered more than 5 kilos to him
over the course of several years. This
kind of testimony connected each of the
defendants to the conspiracy.
In contrast, the testimony that
described transactions of less than five
kilos did not connect the defendants
together. For example, Dwayne Gibson,
another co-conspirator who pled guilty,
testified that he saw Boddie and Walker
rinsing ounces of crack in the sink at
Walker’s residence. This testimony could
support an inference of a conspiracy
between Boddie and Walker, but does not
connect Boddie and Walker to Spradley,
Thompson, or any other members of the
conspiracy charged here.
The only evidence supporting an
inference of conspiracy among each of the
defendants that describes a less-than-
five-kilo transaction was that of Officer
Neukam, relaying the uncorroborated
hearsay testimony of murdered informant
Marcus Willis. We think it unlikely that
the jury would have relied solely on this
evidence to convict the defendants of
conspiracy for two reasons. First,
uncorroborated hearsay testimony is not
particularly compelling. Second, and more
to the point, it is much more likely that
when determining that the conspiracy
trafficked in over five kilos, the jury
relied on the overwhelming evidence that
the conspiracy trafficked in over five
kilos, which included not only the
testimonial evidence described above but
additional evidence presented at trial of
conspiracy members’ purchases of
extravagant vehicles, homes, and
motorcycles (amounting to over $500,000)
as well as the seizure during the
pendency of the conspiracy of over
$350,000 that was never reclaimed.
Based on the totality of this evidence,
we believe that any reasonable jury would
have concluded that the conspiracy
distributed in excess of five kilos.
Therefore, the district court’s failure
to submit drug quantity to the jury was
not plain error worthy of reversal./8
D. Disclosure of Presentence Reports
The defendants assert that the district
court abused its discretion by refusing
to disclose the contents of several
presentence reports after reviewing the
sealed reports in camera. Relying on
United States v. Corbitt, 879 F.2d 224
(7th Cir. 1989), the district court
refused to disclose the reports because
the material contained within them was,
for the most part, cumulative and to the
extent that it was not cumulative, it was
not "absolutely essential to the
effective presentation of a defense"/9
and therefore not required in the
interests of justice. The defendants
disagree with the district court’s
approach, arguing that "[d]ue process and
the defendant[s’] right[s] to the
effective assistance of counsel compelled
the disclosure of the pre-sentence
reports," irrespective of whether the
material was cumulative or actually
necessary to the effective presentation
of their defense. They are wrong. We
squarely rejected this argument in United
States v. Dweck, 913 F.2d 365 (7th Cir.
1990), which is consistent with the
approach followed here by the district
court. The defendants have not
articulated, nor can we think of, any
reason to revisit that opinion./10
E. Severance
Defendants Johnson, Boddie, Thompson,
and Walker argue that the district court
erred by joining all the defendants and
their various charges under Rules 8(a)
and (b) of the Federal Rules of Criminal
Procedure and denying their Rule 14
motion to sever. They wanted to be tried
separately from Spradley, White, and
Jones, who were larger players in the
drug conspiracy and had been charged with
crimes relating to Marcus Willis’s
murder.
We find no error here. Joinder of the
murder-related charges and the drug
conspiracy was proper under Rule 8(a)
because Willis’s murder was charged as an
overt act of the conspiracy and,
therefore, part of the same act or trans
action constituting parts of a common
scheme or plan. See United States v.
Curry, 977 F.2d 1042, 1049 (7th Cir.
1992); Fed. R. Civ. P. 8(b). The fact
that each of the defendants were part of
a common conspiracy is also enough to
justify joinder under Rule 8(b), which
provides that "[t]wo or more defendants
may be charged in the same indictment or
information if they are alleged to have
participated in the same act or
transaction or in the same series of acts
or transactions constituting an offense
or offenses." See United States v.
Ramirez, 45 F.3d 1096, 1100 (7th Cir.
1995); United States v. Schweihs, 971
F.2d 1302, 1321 (7th Cir. 1992); Fed. R.
Civ. P. 8(b).
Regarding their Rule 14 misjoinder
challenge, the key question is whether
the jury was able to sort out the
evidence against Johnson, Boddie,
Thompson, and Walker, and fairly judge
their actions. See United States v.
Thornton, 197 F.3d 241, 255 (7th Cir.
1999). We believe that the jury was able
to do so; the district court instructed
the jury to give each defendant separate
consideration and we normally presume
that the jury followed the court’s
instruction. See United States v.
Johnson, 248 F.3d 655, 665 (7th Cir.
2001). Furthermore, it is clear that this
presumption proved to be true in this
case because the jury hung with respect
to Johnson on the drug conspiracy charge
and also acquitted several defendants not
part of this appeal. We cannot imagine
that a jury able to distinguish between
defendants for this purpose could not
also distinguish between the differing
levels of participation attributable to
each defendant. The jury also acquitted
Spradley, Jones, and White of the murder-
related charges, making it highly
unlikely that the remaining defendants
were prejudiced by the joinder of the
murder-related charges with the
conspiracy charge. Therefore, Johnson,
Boddie, Thompson, and Walker have not
shown that they were actually prejudiced
by the district court’s refusal to sever
and, accordingly, their challenge fails.
See United States v. Pigee, 197 F.3d 879,
891 (7th Cir. 1999).
F. Other Acts Evidence
The defendants argue that the district
court abused its discretion by admitting,
under the "intricately related" theory,
evidence of several violent acts alleged
to have been perpetrated upon or
committed by conspiracy members. Evidence
that is "so blended or connected that it
incidentally involves, explains the
circumstances surrounding, or tends to
prove any element of, the charged crime"
is excluded from Federal Rule of Evidence
404(b)’s prohibition against other acts
evidence admitted to show "action in
conformity therewith" and, therefore, may
be admitted at trial. United States v.
Bogan, 267 F.3d 614, 622 (7th Cir. 2001)
(internal citation omitted). So if the
evidence is "intricately related,"
"connected," or "intertwined" in this
manner, the district court did not abuse
its discretion by admitting the evidence.
See id.
The evidence challenged by the
defendants can be broken into two groups,
each of which we believe was properly
admitted. Group one includes evidence
relevant to the murder of Marcus Willis:
(a) the shooting of an unrelated person
at Spradley’s night club whose blood was
later found in White’s Yukon, the vehicle
in which Willis was murdered; and (b) the
state murder charges against Spradley and
White that were dismissed in favor of
federal prosecution. This evidence was
introduced to fill a conceptual void for
the jury. Evidence of the shooting at
Spradley’s night club explained why
another individual’s blood was found in
White’s Yukon. The jury would have been
left to question the source of the blood
had this evidence not been admitted,
because the blood did not match that of
any of the conspirators. The documents
pertaining to Spradley’s and White’s
state murder charges were introduced only
to clarify the timing of the events
surrounding the murder. Because the jury
acquitted Spradley and White of all
murder-related charges, we know the jury
did not improperly infer "action in
conformity therewith" from the state
murder charging documents. Therefore, we
conclude that this evidence was properly
admitted because it completed the story
of and provided context for the murder-
related charges. See United States v.
Jackson, 33 F.3d 886, 874 (7th Cir.
1994).
The second group of disputed evidence
includes evidence of several non-fatal
shootings and an alleged kidnaping. The
government introduced evidence that
Spradley’s girlfriend, who then served as
the safekeeper of the conspiracy’s
proceeds, had been shot by an attempted
robber. This evidence was introduced to
explain why Robert Johnson, a
coconspirator not part of this appeal,
took over the role of safekeeper,
providing background for the jury to
judge the credibility of this important
witness’s testimony. Other shootings were
alleged to have been committed by
conspiracy members in retaliation for the
attempted robbery of Spradley and a
purchaser’s failure to fully repay
Spradley for fronted cocaine, among other
reasons. For similar reasons, several
conspiracy members allegedly kidnaped a
supplier who failed to procure the
cocaine he promised./11 This kind of
evidence is intricately related to the
drug conspiracy charge because it shows
how the conspiracy conducted its
"business." See United States v. Diaz,
176 F.3d 52, 79 (7th Cir. 1999)
(affirming admission of evidence of
violence committed on behalf of drug
conspiracy because it explained the
mutual trust between coconspirators);
United States v. Molina, 75 F.3d 600, 602
(10th Cir. 1996) (affirming admission of
evidence of defendant’s repossession of
car at gunpoint because it showed his
organizational role in the drug
conspiracy); United States v. Rodrequez,
859 F.2d 1321, 1327 (8th Cir. 1988)
(affirming admission of evidence that
defendant beat a person with a pistol for
failure to repay a loan because it showed
how conspiracy operated)./12
Accordingly, the district court did not
abuse its discretion by admitting this
evidence.
As a fallback position, the defendants
argue that the evidence of violent acts
was unduly prejudicial under Federal Rule
of Evidence 403. They assert that the
cumulative impact of the evidence
improperly aroused the jury members’
emotions and encouraged them to conclude
that the defendants were bad characters
that must be guilty. We agree with the
general proposition that evidence of
kidnapings and shootings can be gruesome
and shocking, though we question whether
the scant evidence of violence presented
here fits that description. In any event,
we cannot imagine that this jury, which
acquitted Spradley, Jones, and White of
the murder-related charges and was
presented with abundant, non-violent
evidence of the drug conspiracy and each
defendant’s participation in it, decided
the case on an emotional basis rather
than upon the evidence presented. See
Bogan, 267 F.3d at 623; United States v.
Thomas, 155 F.3d 833, 836 (7th Cir. 1998)
(applying harmless error analysis to Rule
403 evidentiary question). The
defendants’ conclusory assertions to the
contrary do not provide us with any basis
for reversal given the great amount of
deference we must accord the district
court’s evidentiary ruling. See United
States v. Foster, 939 F.2d 445, 457 (7th
Cir. 1991).
G. Thompson’s Challenges
1. Drug conspiracy conviction
Anthony Thompson mounts the rarely
successful challenge to the sufficiency
of the evidence supporting his conspiracy
conviction. See Thornton, 197 F.3d at
253. We will affirm a jury conviction for
drug conspiracy unless the defendant can
show that no reasonable factfinder could
have found the essential elements--two or
more people agreed to commit the unlawful
act of drug trafficking, and the
defendant knowingly and intentionally
joined in that agreement--beyond a
reasonable doubt. See id. at 254
(internal citations omitted). Thompson
has not met this burden, but instead
waived his challenge by failing to
adequately argue his position.
There was no discussion of Thompson’s
challenge in oral argument, and
describing the arguments made in his
brief as unhelpful would be an
understatement. In five sentences without
any supporting factual details, Thompson
simply argues that the government failed
to present evidence that he knew of, was
a member of, or participated in, a drug
trafficking conspiracy. Further, he fails
to identify the elements necessary for
establishing his guilt (or innocence) or
to cite a single case or fact in support
of his argument.
What we find more problematic is
Thompson’s failure to discuss the
evidence that was presented against him,
rather than stating in a conclusory
manner that the government did not
present enough. He did not even file a
reply brief to challenge the evidence the
government laid out in its response
brief. Thompson’s argument is perfunctory
and therefore waived. See United States
v. McClellan, 165 F.3d 535, 550 (7th Cir.
1999).
Even if not waived, we would reject
Thompson’s challenge. The government’s
case against him included evidence that
he waited for shipments of 25 to 30 kilos
of cocaine with other conspirators, had
received at least 0.5 kilos from a
coconspirator on credit, and frequented
coconspirator Walker’s residence--where
cocaine was cooked into crack. This
evidence is sufficient to support his
conviction. See United States v.
Gutierrez, 978 F.2d 1463, 1469 (7th Cir.
1992) (holding that defendant’s
participating in one drug transaction
with alleged coconspirators was
sufficient to support conspiracy
conviction).
2. Attribution of drug quantity at
sentencing (sec. 2D1.1(a)(3))
At sentencing, the district court
attributed five kilograms of cocaine to
Thompson for his participation in the
conspiracy under U.S.S.G. sec.
2D1.1(a)(3). It based its conclusion on
the fact that Thompson was "involved in
the conspiracy for a significant period
of time, and [ ] the logical conclusion
[from that] is that he was personally in
receipt of the kilogram of cocaine more
than once." It is not clear from the
record what "kilogram" the district court
is referring to in its ruling. Maybe the
court meant to say "0.5 kilograms"; there
was evidence that Thompson received 0.5
kilos of cocaine from coconspirator Keith
Cork on more than one occasion. From the
face of its ruling, however, we cannot
tell. The usual recourse in this
situation is to remand for the district
court to make more explicit findings, see
United States v. Mojica, 984 F.2d 1426,
1445 (7th Cir. 1993), but that is not
necessary here. We can affirm despite the
court’s insufficient findings unless
Thompson can make a colorable argument
that there is no adequate basis in the
record to support the attribution. See
id.
Thompson cannot make a colorable
argument against attribution. The
conspiracy trafficked in well over five
kilos of cocaine and whatever portion of
this amount that was reasonably
foreseeable to Thompson is attributable
to him as relevant conduct. See United
States v. Strauser, 21 F.3d 194, 196-97
(7th Cir. 1994); U.S.S.G. sec. 1B1.3(a).
The district court’s finding that
Thompson was involved in the conspiracy
for a significant period of time
sufficiently supports the conclusion that
at least five kilos of the conspiracy’s
total was foreseeable to him. The court’s
finding is further supported by the
evidence that he waited along with
several coconspirators for cocaine
shipments of 25 to 30 kilos on more than
one occasion. Thompson has not argued
that his coconspirators’ quantities were
not foreseeable to him, therefore, the
district court’s attribution of five
kilos to Thompson at sentencing was not
error. See Mojica, 984 F.2d at 1445
(affirming attribution of 6.5 kilos based
primarily on evidence that defendant
participated in the delivery of an amount
representing about 20 percent of the
total quantity attributable to the
conspiracy).
3. Firearm possession guideline
(sec.2D1.1(b)(1))
Finally, Thompson argues that the
district court improperly applied the
Guideline enhancement for possession of a
firearm. For this Guideline to apply, it
is sufficient for the defendant to have
possessed the gun at any point during the
pendency of the conspiracy. See United
States v. Bjorkman, 270 F.3d 482, 494
(7th Cir. 2001). The district court based
its application, in part, on Thompson’s
state court conviction resulting from his
possession of a firearm found on him
during a search of one of the
conspiracy’s stash houses where drug
paraphernalia and other weapons were
found. This incidence of possession
occurred while the conspiracy was still
in operation. Therefore the district
court’s application was proper. See
Bjorkman, 270 F.3d at 494 (affirming
application involving similar facts);
United States v. Billops, 43 F.3d 281,
288 (7th Cir. 1994).
H. Johnson’s Money Laundering Conviction
Stephanie Johnson argues that the
Government did not prove beyond a
reasonable doubt that she knew that the
proceeds involved in the money laundering
transactions--which she admits she
completed--were from drug sales./13
Johnson is correct in asserting that her
convictions are invalid without
sufficient evidence that she knew the
proceeds derived from an illegal
activity, see United States v. Gracia,
272 F.3d 866, 873 (7th Cir. 2001)
(conspiracy to commit money laundering);
United States v. Rodriguez, 53 F.3d 1439,
1447 (7th Cir. 1995) (substantive money
laundering), but her argument that the
government’s evidence is insufficient is
frivolous.
The jury was presented with ample
evidence to support the knowledge element
of Johnson’s substantive money laundering
and conspiracy to commit money laundering
charges. A 1997 Ford Expedition was
purchased in Johnson’s name with
coconspirator Spradley’s funds in May of
1997, a period of time for which she does
not dispute that Spradley had no other
source of legitimate income. Drug ledgers
and paraphernalia, small amounts of
cocaine, close to $2,000 in cash, and
several loaded firearms were found in
Johnson’s bedroom along with Johnson’s
identification and pager bill during a
police search of the home she shared with
coconspirator Boddie on February 24,
1994. Two witnesses testified that she
observed drug transactions and even
engaged in drug trafficking herself, and
photographs of her with various
conspiracy members were introduced at
trial. Johnson argues that we should not
consider the evidence stated in the
previous sentence because she was
acquitted of her drug conspiracy charge.
But we do not know the basis for the
jury’s acquittal, see United States v.
Reyes, 270 F.3d 1158, 1168 (7th Cir.
2000) (listing possible reasons for
inconsistent verdicts), and the fact that
it convicted her of the money laundering
charges suggests that the acquittal was
not based on a belief that she was
unaware of the conspirators’ drug
activities. Accordingly, we conclude that
there is more than sufficient basis for
the jury’s verdict. See United States v.
Rodriguez, 53 F.3d 1439, 1447-48 (7th
Cir. 1995) (holding that it was
reasonable for a jury to conclude that
the defendant was aware of the illegal
source of the funds based on his
knowledge of and minimal participation in
drug transactions). Accord, United States
v. Atterson, 926 F.2d 649, 656 (7th Cir.
1991).
III. CONCLUSION
For the reasons stated above, we affirm
each of the defendants’ convictions and
remand for the resentencing of defendants
Jones and White.
FOOTNOTES
/1 The remaining counts, including count 4 for using
a firearm during a drug conspiracy and other
money laundering-related counts, are not relevant
to this appeal.
/2 The question of what conduct may support the
application of a cross reference to a defendant
is governed by the cross reference itself, within
the constraints set by the general relevant
conduct guideline--sec.1B1.3. See U.S.S.G.
sec.1B1.3(a); United States v. Masters, 978 F.2d
281, 284-85 (7th Cir. 1992).
/3 They also argue that the district court erred by
basing the Guideline calculation on conduct for
which they were acquitted. We rejected this
argument in United States v. Meyer, 157 F.3d
1067, 1081 (7th Cir. 1998) and the defendants
have not suggested why its holding should be
reconsidered.
/4 For example, White testified that he left his
sports utility vehicle at the Wagon Wheel Restau-
rant the night of the murder and picked it up
that next morning, undamaged. This statement is
inconsistent with the scientific evidence that
Willis was murdered in White’s sports utility
vehicle by 12:45 a.m. that morning. The court
concluded that White participated in the cover-up
because he often used the name "Demarco," the
same name used by the party who scheduled the
appointment to have the vehicle repaired at
Mobile Jamzz.
/5 Though technically a hearsay exception, Rule
804(b)(6) is really a waiver provision. Fed. R.
Evid. advisory committee note to subdivision
(b)(6) ("Rule 804(b)(6) has been added to provide
that a party forfeits the right to object on
hearsay grounds to the admission of a declarant’s
prior statement when the party’s deliberate
wrongdoing or acquiescence therein procured the
unavailability of the declarant as a witness.").
/6 For the same reasons, we believe that any error
in the admission of the statements on the grounds
that they lacked "particularized guarantees of
trustworthiness" as that term has been defined by
Ohio v. Roberts, 448 U.S. 56 (1980), and its
progeny, is harmless as well. As to the merits of
this challenge, the government has not told us
nor can we imagine what, in the circumstances
surrounding the making of Willis’s statement,
makes them inherently reliable. See United States
v. Becker, 230 F.3d 1224, 1230 (10th Cir. 2000).
/7 For example, a defendant who locked a witness in
a storehouse stocked with food and water not
knowing that the witness suffered from acute
asthma could not be held liable for first-degree
murder in the event that the witness died, but
could be deemed to have waived his objections
because he engaged in an act that resulted in the
witness’s unavailability.
/8 In any event, the defendants seem to have conced-
ed as much. They state in their joint brief’s
statement of facts that "[c]ocaine belonging to
Spradley was periodically delivered to [other
conspiracy members] in kilo and multi-kilo
amounts [and] was later distributed to [other co-
conspirators] for sale." They further admit to
the collection of over $350,000 in cocaine pro-
ceeds.
/9 As for impeachment evidence pertaining to cocon-
spirator Alfred Edmonson, the court held eviden-
tiary hearings, ordered the government to produce
documents, reviewed agent notes, and found no
undisclosed impeachment material. The only evi-
dence the defendants’ mention on appeal that they
hope to find in Edmonson’s materials duplicates
evidence offered at trial. Therefore the district
court properly refused to disclose them. See
United States v. Dweck, 913 F.2d 365, 371 (7th
Cir. 1990) (stating that cumulative impeachment
evidence does not violate Brady).
/10 We have also reviewed the sealed reports. See
United States v. Anderson, 724 F.2d 596, 599 (7th
Cir. 1984). Much of the information was duplici-
tive--reiterating portions of previously dis-
closed reports that were common to multiple
defendants. The portions of the reports that were
not made available to the defendants were also
not necessary for their defense.
/11 We use the term "allegedly" because the defen-
dants dispute the accuracy of the testimony
supporting these assertions and the jury was not
required to believe the testimony to convict
these defendants of drug conspiracy.
/12 One could also argue that this kind of evidence
helps to prove the existence of a drug conspiracy
under the "tools of the trade" theory recognized
by this court and others, though we do not
resolve this issue today. See, e.g., Diaz, 176 at
179; cf. United States v. Ramirez, 45 F.3d 1096,
1103 (7th Cir. 1995) (admitting evidence of a
pistol found in the defendant’s apartment on the
theory that weapons are tools of the drug traf-
ficking trade); United States v. Martinez, 938
F.2d 1078, 1083 (10th Cir. 1991) ("[I]n admitting
firearms and large amounts of cash, courts have
recognized the high level of violence that is not
uncommonly associated with the drug distribution
business."); id. at 1083-84 (collecting and
discussing similar cases).
/13 Johnson was convicted under sec.sec. 18 U.S.C.
1956(a)(1)(B)(i) and 1956(h). "Whoever, knowing
that the property involved in a financial trans-
action represents the proceeds of some form of
unlawful activity, conducts or attempts to con-
duct such a financial transaction which in fact
involves the proceeds of specified unlawful
activity . . . knowing that the transaction is
designed in whole or in part . . . to conceal or
disguise the nature, the location, the source,
the ownership, or the control of the proceeds of
specified unlawful activity" violates 18 U.S.C.
1956(a)(1)(B)(i). 18 U.S.C. 1956(h) provides that
"[a]ny person who conspires to commit any offense
defined in this section . . . shall be subject to
the same penalties as those proscribed for the
offense of the commission of which was the object
of the conspiracy."