United States v. Melvin Thomas , 845 F.3d 824 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2691
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MELVIN R. THOMAS, also known as
MELVIN R. THOMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:12-cr-00155-wmc-1 — William M. Conley, Chief Judge.
____________________
ARGUED SEPTEMBER 16, 2016 — DECIDED JANUARY 10, 2017
____________________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Melvin Thomas was indicted by a
grand jury on one count of conspiracy to possess, with intent
to distribute, a mixture or substance containing heroin, in vi-
olation of 21 U.S.C. §§ 841(a)(1), 846; and two counts of pos-
sessing, with intent to distribute, a mixture or substance con-
taining heroin, in violation of 21 U.S.C. § 841(a)(1). He
pleaded not guilty, and the case proceeded to trial. At the end
2 No. 15-2691
of the Government’s case, Mr. Thomas moved for a judgment
of acquittal. The district court denied the motion. A jury later
found Mr. Thomas guilty of the charged offenses, and the
court subsequently sentenced him to 216 months’ imprison-
ment. Mr. Thomas timely appealed. He now challenges the
sufficiency of the evidence to support his conspiracy convic-
tion. He also maintains that the district court erred in impos-
ing a sentencing enhancement for maintaining a drug house.
We conclude that there is sufficient evidence to sustain the
conspiracy charge and that the evidence supports the district
court’s imposition of the sentencing enhancement. Accord-
ingly, we affirm the judgment of the district court.
I
BACKGROUND
While investigating a heroin dealer named Domingo
Blount, Drug Enforcement Agency (“DEA”) agents inter-
cepted, through a court-authorized wiretap, Blount’s incom-
ing and outgoing telephone calls. Among the intercepted calls
were twenty-nine calls from Blount’s number to Mr. Thomas.
Discovery of these calls eventually led to the DEA’s investi-
gating Mr. Thomas’s activities. Through subsequent surveil-
lance, the agents in Chicago observed several meetings be-
tween Blount and Mr. Thomas.
On November 9, 2010, the DEA learned that Mr. Thomas
was traveling back to Wisconsin from Chicago and that he
was carrying heroin. Madison police officers conducted a traf-
fic stop of the vehicle. Anita Andrews was the driver;
Mr. Thomas was the passenger. The officers searched the car
and patted Andrews down, but did not find any contraband
No. 15-2691 3
and therefore allowed the car to proceed. Andrews later testi-
fied that the officers had failed to detect any drugs because
she had concealed them in her genital area.
On December 10, 2010, officers stopped another vehicle ar-
riving in Madison from Chicago. Porcha Bell was driving;
Mr. Thomas was the passenger. When questioned, Bell admit-
ted that, at Mr. Thomas’s request, she was concealing twenty-
five grams of heroin in her vagina. She said that she had ac-
quiesced to his request because Mr. Thomas had promised to
buy her children Christmas presents and because she had
feared that Mr. Thomas would leave her in Chicago if she re-
fused. During this encounter, Mr. Thomas was arrested on a
Wisconsin probation hold.
Shortly thereafter, agents conducted a consent search at
Andrews’s home. During the course of that search, the agents
found a digital scale, a chemical substance used to cut or mix
drugs, 1 and twenty-two sandwich baggies with the corners
cut out. 2 After seizing these items and questioning both An-
drews and two other adults then present in the home, the of-
ficers left.
Later that morning, agents listened to Mr. Thomas’s post-
arrest jail calls. Mr. Thomas’s first call was to his mother. In
this phone call, Mr. Thomas asked his mother to call Andrews
1Officers found Inositol, a substance often used as a cutting agent with
cocaine and heroin. Appellant’s Br. 6; see R.244 at 185–86.
2
Detective Dorothy Rietzler explained that the cut corners were signifi-
cant because drug dealers will “put the substance into the corner [of the]
baggie, subsequently knot it off … and then that corner is cut [out].” R.248
at 55. This allows dealers to use one sandwich bag to package two units of
product.
4 No. 15-2691
and to tell her to get rid of his “stash” and to get the cash out
of the Cadillac that he had parked at her residence. Based on
this call, agents seized the automobile. They found approxi-
mately $2,460 in the glove box of the car. No drugs were
found.
Based on this evidence, Mr. Thomas was indicted by a
grand jury on one count of conspiracy to possess, with intent
to distribute, a mixture or substance containing heroin; and
two counts of possessing, with intent to distribute, a mixture
or substance containing heroin. A three-day jury trial com-
menced on May 18, 2015. 3 Andrews testified for the Govern-
ment. In addition to the encounters already described, she tes-
tified that she had driven Mr. Thomas to Chicago on several
occasions. After purchasing the heroin, the pair would return
to Madison and either stop at the home of Mr. Thomas’s
mother or drive directly to Andrews’s house. Testifying about
the November 10, 2010 stop, Andrews stated that, during this
stop, she had concealed heroin in her genital area because
Mr. Thomas had told her to “[d]o this or I’ll knock you the f--
k out.” 4
After the November 10 stop, Andrews’s relationship with
Mr. Thomas soured. Andrews testified that she rarely saw Mr.
Thomas after their breakup, although Mr. Thomas still kept
personal items at her home. At trial, Andrews described Mr.
Thomas as having “items there, but he was not—he was gone
3
The district court’s jurisdiction was predicated on 18 U.S.C. § 3231.
4
R.244 at 168.
No. 15-2691 5
all the time. I barely saw him.” 5 When Mr. Thomas later testi-
fied, he also described the relationship as rocky.
Two law enforcement officers also testified at trial. A DEA
agent, Terrence Glynn, discussed the wiretap on Blount’s
phone and conversations involving Mr. Thomas. Detective
Dorothy Rietzler of the Madison Police Department testified
about the December 10, 2010 stop. Mr. Thomas does not dis-
pute this testimony.
At the conclusion of the Government’s case, Mr. Thomas
moved for a judgment of acquittal. The district court denied
the motion stating, “I think the circumstantial evidence as
such is so strong that I’m going to allow the case to proceed,
although you’ve preserved your record and you can make
what arguments you wish at the appropriate time in more de-
tail.” 6
The defense then called two witnesses: Porcha Bell and
Mr. Thomas himself. Bell was subpoenaed to appear by both
the Government and the defense at trial, but did not show
up. 7 However, the district court allowed defense counsel to
play a recording of her testimony at Mr. Thomas’s state pro-
bation revocation proceedings. 8 There, Bell recounted her ver-
sion of the events of December 10, 2010, including that she
5
Id. at 169.
6
R.248 at 157.
7
Id. at 135–37.
8
Id. at 218–19.
6 No. 15-2691
had concealed drugs in her genital area at Mr. Thomas’s re-
quest. 9
Mr. Thomas also took the stand. He offered a different ex-
planation for his contact with Blount and his interaction with
Bell. According to Mr. Thomas, he was purchasing medicinal
marijuana, not heroin, from Blount. 10 He admitted that he
communicated with Blount, via text messages and telephone
calls, but testified that those communications, which included
references to selling drugs on “corners,” were referring only
to marijuana and that Andrews did not help him with these
sales. 11 Mr. Thomas also testified that his relationship with
Andrews was rocky because they were cheating on each
other.12
Mr. Thomas also offered a wholly different explanation
for his interaction with Bell on December 10. According to
Mr. Thomas,
I was at—I had went to a party over in the
Castille area and later that night my cousin Matt
and Porcha Bell had showed up at this party.
Matt had ended up going home with a chick, a
female that he messing with, so I had ended up
getting the van from him. And a little later after
that, I had—I was getting ready to go home and
Porcha Bell had asked me to drop her off and I
9
See R.202 at 7.
10
R.248 at 180–81.
11
Id. at 182, 185.
12
Id. at 168.
No. 15-2691 7
told Porcha Bell that since we both were head-
ing in the same direction, on the east side, I told
Porcha Bell that I would drop her off on the con-
ditions that she drive to her destination and
then I would drive home from there, which was
to my house, Anita—me and Anita’s house. Be-
cause I didn’t want to drive because I had like
four driving traffic tickets that I had owed
money on.
I asked Porcha Bell did she have a driver’s
license and she told me yeah. So I let her drive.
On my way home, she got off the beltline on
Stoughton over on Pflaum Road and she didn’t
have—she was driving without the headlights
on, so we ended up getting pulled over for a
traffic stop.[ 13]
Mr. Thomas asserted that he was unaware of the drugs in
Bell’s possession. He “believe[d] that Detective Rietzler co-
erced her to say that those narcotics belong[ed] to [him] dur-
ing the traffic stop.” 14
The jury later found Mr. Thomas guilty on all counts, and,
specifically determined that the conspiracy involved 100
grams or more of heroin. 15
13
Id. at 170–71.
14
Id. at 175.
15
R.249 at 65–66.
8 No. 15-2691
The presentence report (“PSR”) recommended a two-level
enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a
drug house. 16 It further advised that Mr. Thomas qualified as
a career offender under § 4B1.1(b)(1) because of his four prior
felony convictions for controlled substance offenses.17
Mr. Thomas did not file written objections to the PSR, but at
the sentencing hearing his counsel “maintain[ed]
[Mr. Thomas’s] innocence and object[ed] to the factual por-
tions and the full report.” 18
The district court concluded that, because of the four prior
felony controlled substance offenses, Mr. Thomas was a ca-
reer offender. This determination resulted in an advisory
guideline imprisonment range of 360 months to life. The court
decided to impose a sentence of 216 months’ imprisonment.
Mr. Thomas timely filed this appeal. 19
II
DISCUSSION
A.
Mr. Thomas first submits that the district court erred in
denying his motion for a judgment of acquittal. He maintains
that the record contains insufficient evidence to support his
conspiracy conviction.
16
R.202 at 14.
17
Id. at 15.
18
R.246 at 3.
19
Our jurisdiction is predicated on 28 U.S.C. § 1291.
No. 15-2691 9
We review de novo the district court’s denial of the motion
for judgment of acquittal. United States v. Fassnacht, 332 F.3d
440, 447 (7th Cir. 2003). In reviewing the district court’s deci-
sion, we must assess “the evidentiary basis for the jury’s ver-
dict in the light most favorable to the government.” Id. (inter-
nal quotation marks omitted). We will uphold the conviction
if “any rational trier of fact could have found the essential el-
ements of the crime beyond a reasonable doubt.” United States
v. Granados, 142 F.3d 1016, 1019 (7th Cir. 1998) (internal quo-
tation marks omitted) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). We will overturn the jury’s verdict only when
the record is “devoid of evidence from which a reasonable
jury could find guilt beyond a reasonable doubt.” United
States v. Campbell, 770 F.3d 556, 568 (7th Cir. 2014). A defend-
ant challenging the sufficiency of the evidence against him
therefore “faces a formidable burden.” United States v. Goree,
756 F.3d 522, 525 (7th Cir. 2014) (internal quotation marks
omitted).
Mr. Thomas contends that the Government “failed to
prove he had any coconspirators.” 20 The Government main-
tains, however, that Andrews was Mr. Thomas’s coconspira-
tor. Mr. Thomas counters that Andrews’s participation does
not rise to the level of conspiratorial conduct because: (1) she
did not knowingly agree with Mr. Thomas; and (2) she did
not receive any payment or consideration for her role.
To convict a defendant on a conspiracy charge, the Gov-
ernment must prove that “(1) two or more people agreed to
commit an unlawful act, and (2) the defendant knowingly and
intentionally joined in the agreement.” United States v.
20
Appellant’s Br. 17.
10 No. 15-2691
Vaughn, 722 F.3d 918, 928 (7th Cir. 2013). Specifically, a drug-
distribution conspiracy charged under 21 U.S.C. § 846 “re-
quires proof that the defendant knowingly agreed—either im-
plicitly or explicitly—with someone else to distribute drugs.”
United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Alt-
hough an agreement is sometimes express, an assessment of
circumstantial evidence is frequently necessary. United States
v. Pulgar, 789 F.3d 807, 813 (7th Cir. 2015). “Importantly, there
is no rigid list or formula to prove a conspiracy in the absence
of an express agreement.” Id.; United States v. Brown, 726 F.3d
993, 1002 (7th Cir. 2013) (“[O]ur list of example considerations
may make it sound as if we are checking off boxes and only
looking for specified indicia. That is not the case.”). The court
must undertake a fact-specific inquiry. In short, we employ a
totality-of-the-circumstances approach and “take into account
all the evidence surrounding the alleged conspiracy and make
a holistic assessment of whether the jury reached a reasonable
verdict.” Brown, 726 F.3d at 1002.
An examination of the record makes clear that the jury was
entitled to conclude that Andrews was a knowing coconspira-
tor. She drove Mr. Thomas to and from Chicago to buy heroin
from Blount; by doing so she clearly assisted in accomplishing
the objective of the conspiracy. She also rented vehicles for the
trips. Indeed, Andrews testified that she drove Mr. Thomas to
locations to make drug deliveries. 21 On at least one occasion,
Andrews packaged heroin for Mr. Thomas when he called her
and said, “Hurry up, I need to you do [sic] something for
me.” 22 Even if Mr. Thomas was angry when this request was
21
R.244 at 179–80.
22
Appellant’s Br. 6; R.244 at 178.
No. 15-2691 11
made, that does not overcome the fact that “the jury could
have easily concluded” that both parties “embraced the con-
spiracy’s objectives.” United States v. James, 540 F.3d 702, 708
(7th Cir. 2008).
Mr. Thomas also submits that Andrews cannot be a cocon-
spirator because she did not gain any benefit for her role. But
“[a] criminal without a profit motive is still a criminal as long
as all elements of the crime are established.” United States v.
Hunte, 196 F.3d 687, 691 (7th Cir. 1999). We already have de-
termined that a jury could have concluded reasonably that
Andrews was a coconspirator; any lack of profit does not alter
that status.
B.
Mr. Thomas also maintains that the district court erred in
imposing a sentencing enhancement for maintaining a drug
house.
We first must address whether Mr. Thomas adequately
raised the challenge to the PSR’s recommendation that this
enhancement be imposed. If he did, we will review the district
court’s application of the sentencing guidelines de novo and its
factual findings under the clearly erroneous standard. United
States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006). If he did not
object sufficiently, we will review for plain error. United States
v. Seals, 813 F.3d 1038, 1044–45 (7th Cir. 2016).
An examination of the record reveals that, at sentencing,
Mr. Thomas maintained his innocence and objected to the
12 No. 15-2691
“full report.”23 He made no specific objection with respect to
this enhancement. He now maintains that this general objec-
tion was sufficient to preserve the issue on appeal. The Gov-
ernment counters that the general objection was insufficient
notice of Mr. Thomas’s specific challenge to the drug house
enhancement.
The Government is correct. Precedent and strong policy
reasons support its position. 24 “It is now axiomatic that in or-
der ‘[t]o preserve an issue for appellate review, a party must
make a proper objection at trial that alerts the court and op-
posing party to the specific grounds for the objection.’” United
States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999) (alteration
in original) (internal quotation marks omitted) (quoting
United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998)); see
also United States v. Neal, 578 F.3d 270, 272–73 (5th Cir. 2009).
Thus, a party may not rest on a general objection to the evi-
dence; “absent a proper, specific and timely objection … we
will only review for plain error.” Hardamon, 188 F.3d at 849.
On plain error review, we may reverse the district court’s
findings only when: “(1) [an] error occurred; (2) the error was
‘plain’; (3) and the error affected the defendant’s substantial
rights.” United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th
Cir. 2010) (alteration in original) (internal quotation marks
omitted) (citing United States v. Olano, 507 U.S. 725, 731–36
23
R.246 at 3.
24
See, e.g., Puckett v. United States, 556 U.S. 129, 134 (2009) (“This limitation
on appellate-court authority serves to induce the timely raising of claims
and objections, which gives the district court the opportunity to consider
and resolve them. That court is ordinarily in the best position to determine
the relevant facts and adjudicate the dispute.”).
No. 15-2691 13
(1993)). If these criteria are met, we may exercise our discre-
tion and reverse the judgment if we determine that the error
“seriously affect[ed] the fairness, integrity or public reputa-
tion of judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks omitted).
We need address only the first prong of this test because
no error occurred. The Sentencing Guidelines provide for this
two-level enhancement where “the defendant maintained a
premises for the purpose of manufacturing or distributing a
controlled substance.” U.S.S.G. § 2D1.1(b)(12). Application
Note 17 explains:
Among the factors the court should consider in
determining whether the defendant “main-
tained” the premises are (A) whether the de-
fendant held a possessory interest in (e.g.,
owned or rented) the premises and (B) the ex-
tent to which the defendant controlled access to,
or activities at, the premises.
Manufacturing or distributing a controlled sub-
stance need not be the sole purpose for which
the premises was maintained, but must be one
of the defendant’s primary or principal uses for
the premises, rather than one of the defendant’s
incidental or collateral uses for the premises. In
making this determination, the court should
consider how frequently the premises was used
by the defendant for manufacturing or distrib-
uting a controlled substance and how fre-
quently the premises was used by the defendant
for lawful purposes.
14 No. 15-2691
U.S.S.G. § 2D1.1 n.17. Mr. Thomas submits that the en-
hancement is inapplicable to him because he did not have
a possessory interest over Andrews’s home and because
housing his drug operation was not the home’s primary
purpose.
We cannot accept these arguments. The enhancement does
not require either ownership or a leasehold interest. United
States v. Flores-Olague, 717 F.3d 526, 532 (7th Cir. 2013). 25 An
ownership interest is but one consideration. As Mr. Thomas
admits, another consideration is whether “the defendant lives
in the house.” 26 The record certainly supports the district
court’s finding that he resided with Andrews. 27 As
Mr. Thomas admits, and Andrews’s testimony corroborates, 28
he “moved into Andrews’s apartment in Madison, Wisconsin
about two to three months after their relationship began and
he lived off and on at this location” until December 2010. 29
25
See also United States v. Carter, 834 F.3d 259, 262–63 (3d Cir. 2016) (“[T]he
absence of [the defendant’s] name on a deed or lease is insufficient to pre-
clude the enhancement’s application.”); United States v. Jones, 778 F.3d 375,
385 (1st Cir. 2015) (citing United States v. Renteria-Saldana, 755 F.3d 856,
859–60 (8th Cir. 2014)).
26
Appellant’s Br. 30 (quoting United States v. Russell, 595 F.3d 633, 645 (6th
Cir. 2010)).
27
R.246 at 5–6.
28
R.244 at 156 (stating, for example, Mr. Thomas moved in “[v]ery
quickly”).
29
Appellant’s Br. 4.
No. 15-2691 15
Even though Andrews testified that she “barely saw”
Mr. Thomas after the November 2010 traffic stop, 30 this factor
alone does not prevent a finding that Mr. Thomas lived in the
home. It is uncontested that Mr. Thomas kept personal items
at Andrews’s home at least until the December 2010 search. 31
Mr. Thomas’s December 2010 jail call to his mother is, moreo-
ver, particularly persuasive on the ultimate issue. In that call,
Mr. Thomas specifically referred to “stash spots” in An-
drews’s home, as well as a car of his parked at Andrews’s res-
idence, which contained a large quantity of cash. 32 A reasona-
ble factfinder could easily conclude that Mr. Thomas main-
tained a connection to the home at the time of these calls.
There would be no reason otherwise for Mr. Thomas to ask
his mother to have Andrews check the home for his “stash.” 33
Mr. Thomas’s use of the home as part of his scheme was
part of the home’s “primary purpose.” We reviewed a similar
issue in United States v. Sanchez, 810 F.3d 494 (7th Cir. 2016).
In Sanchez, defense counsel similarly argued that the
30
R.244 at 169.
31
Appellant’s Br. 6–7; R.244 at 169–70. Mr. Thomas also testified that Bell
was driving him to “[his] and Anita [Andrews]’s house” when they were
pulled over, implying that he was still residing at Andrews’s home on De-
cember 10, 2010. R.248 at 171.
32Id. at 187–88, 200. Mr. Thomas admits that this call took place, but dis-
putes whether we can infer that drugs were still at the home, since, when
the police returned to Andrews’s residence for the second search, they did
not find heroin. Appellant’s Br. 32. The district court’s determination,
however, is supported by evidence of the phone call.
33
R.248 at 58–59, 187–88.
16 No. 15-2691
§ 2D1.1(b)(12) enhancement should not apply because the pri-
mary purpose of Sanchez’s residence was not drug distribu-
tion. Defense counsel emphasized that:
in other cases the “primary purpose” require-
ment of the guideline was met by additional
facts, such as when the defendants also “main-
tained business records, used a child to deliver
narcotics, settled financial transactions or ac-
cepted payment” on the premises. [Defense
counsel argued that] Sanchez, however, was
merely providing storage and this was not
enough to make drug distribution the primary
purpose of his house.
Id. at 496. We disagreed and affirmed the district court’s find-
ing that storing drugs was one of the home’s primary pur-
poses. We explained: “a premise can have more than one pri-
mary use (drug distribution and residence), and, as long as it
is more than ‘incidental or collateral,’ drug distribution does
not have to be the ‘sole purpose.’” Id. at 497.34 We also noted
that storing additional tools of the drug-trafficking trade can
34
See also United States v. Flores-Olague, 717 F.3d 526, 531–32 (7th Cir. 2013)
(holding the enhancement was applicable when defendant stored cocaine
on the premises for several years, sold it to at least ten regular customers,
and had firearms in the home); see also United States v. Bell, 766 F.3d 634,
638 (6th Cir. 2014) (“Drug storage on the property and transactions on the
property will usually suffice [to establish primary use.]”); United States v.
Miller, 698 F.3d 699, 706–07 (8th Cir. 2012) (applying enhancement when
coconspirator was involved in at least three transactions at the home, used
her son to deliver drugs to one of the buyers, and collected payment for
drugs on several occasions).
No. 15-2691 17
be “indicia that drug trafficking was the principal use of the
premises.” Id. (quoting Flores-Olague, 717 F.3d at 533).
The district court certainly did not commit plain error.
Mr. Thomas admits that Andrews testified that Mr. Thomas
“cut[] and packag[ed] heroin in her home,” though she only
witnessed it on one occasion. 35 Andrews also admitted that
“she packaged heroin for Mr. Thomas one time” in her home
upon his insistence. 36 Even if “no drug sales ever occurred at
her residence,” 37 Andrews also testified to her belief that her
television console was being used to store drugs. 38 Addition-
ally, the December 2010 search of the home yielded a digital
scale, a cutting agent, and plastic sandwich baggies with the
corners cut out. 39 These tools of the trade are “indicia that
drug trafficking was the principal use of the premises.”
Sanchez, 810 F.3d at 497 (internal quotation marks omitted).
The district court’s finding was further supported by an-
other witness’s statements in the PSR. Trina Harr, who lived
with Mr. Thomas and Andrews for a period of time and was
present when police searched Andrews’s home, 40 stated that
35
Appellant’s Br. 4.
36
Id.
37
Id. at 5.
38
Id. at 4.
39
R.248 at 54–56; see supra note 2.
40
It is unclear how long Harr lived with Mr. Thomas and Andrews, how-
ever, Mr. Thomas admitted that Harr lived with them around the time of
his arrest in December 2010. R.248 at 173–74.
18 No. 15-2691
she had observed Mr. Thomas cutting up heroin approxi-
mately seven to eight times at Andrews’s home. Although she
did not testify at trial, Harr told investigators that she had
seen heroin in the house and that she observed Mr. Thomas
mixing or cutting the heroin and packaging the heroin into
sandwich bags for sale at the home. Harr also saw
Mr. Thomas retrieve a scale from the downstairs closet of the
home on numerous occasions. 41 It therefore was appropriate
to apply the enhancement.
Conclusion
The district court’s opinion is affirmed. There was suffi-
cient evidence to support a finding that Mr. Thomas con-
spired with Andrews. The court also did not err in imposing
a two-level sentencing enhancement for maintaining a drug
house; the record supports a finding that Mr. Thomas lived in
Andrews’s home and used that home as part of his distribu-
tion process.
AFFIRMED
41
R.202 at 11.